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will direct him to speak; but he ought not in L. H. Steward. I ask your lordships' leare any case to propound a question in law; nor to go nearer to the table. when a question is propounded by the prisoner, to speak to it without your lordships' express was made as usual.]

[Which being done, proclamation for silence direction. Lord High Steward. Sir Constantine

Phipps, L. H. Steward. Gentlemen that are of coup. you know the practice to be so, and the point sel for the prisoner at the bar, you bare liberty must be first stated by the prisoner before you to speak to the point proposed. can speak to it.

Sir Constantine Phipps. May it please your Sir C. Phipps. My lords, if I had been lordships, we that have the honour to be asheard but ten words more

signed by your lordships as counsel in this Sir W. Thomson. My lords, we humbly in- Case, do humbly apprehend the Impeachment sist upon it that that gentleman be not heard against the nublé lord at the bar to be insuffione word more

cient; it is so uncertain, that we (with the Lord Ilay moved to adjourn.

greatest submission) take it no judgment can L. H. Stewurd. Is it your lordships' plea- be given upon it. My lords, we beg leave to sure to adjourn ?

take notice to your lordships, tbat in iodict. Lords. Ay, ay.

ments, in the courts below, even for trespasses, L. H. Steward. This House is adjourned to the law requires the certain day when the the chamber of parliament.

offence is supposed to be commitied to be alThe Lords went in their order to the cham- leged ; and if a particular day be not laid, the ber of parliament.

indictment is insufficient. And if such cer. And after about half an hour being re- tainty is requisite in offences of the most mi. turned,

nute nature, it is much more so in capital crimes, The House was resumed, and proclamation and more still in offences of the bighest nature, made for silence as usual,

such as treason, with which this noble lord is L, H. Sleward. My lord Wintoun, the Lords charged. bave considered of the matter which you My lords, there be two reasons why, in inhave moved in arrest of judgment, which was dictments for bigb-treason, a certain day to this effect, that you are not such a person should be assigned when the treason was comas against whom judgment of death for high- mitted. treason ought to be pronounced. I am di. One is for the advantage of the prisoner; that rected to acquaint you, that their lordships are being apprised not only for the facts with of opinion it is matter of fact, and pot of law; which he is charged, but also of the time when and ihat the Lords think you are such a person those facts are supposed to be committed, he as against whom judgment ought to be given may be the better able to make his defence: in this case. I am likewise ordered by the it is possible he may have witnesses to prove Lords to reprimand yoụ, sir Constantine Phipps, be was at another place, and in another comfor having, in a proceeding of this nature, pany, at the time when he is accused to have presumed to be so forward as to speak for the committed the treason, or may by other cir. prisoner at the bar before a point of law was cunistances make his innocence appear. first stated, and you had leave to speak to it; The second reason is for the benefit of the and your fault is certainly the greater for crown, that it may be known to what time the having presumed to do this to a matter, which forfeiture shall relate ; for in treason the foryou cannot but know is matter of fact, and that feiture relates to the time laid in the iodict. ihe law is not doubtful one way or other, the ment; and if there be no precise time alleged fact being supposed. My lord Wintoun, I am in the indictment, the forfeiture can relate no allowed again to ask your lordship, if you farther than to the judgment. bave any thing further to allege or move why My lords, the forfeitures in cases of treason , judgment of death should not pass upon you are very great, therefore we conceive, with according to the law ?

humble submission, that the accusation ought Clerk from L. Wintoun. My counsel are to contain all the certainty it is capable of, that ready to offer, in arrest of judgment, that the the prisoner may not, by general allegations, Impeachment is insufficient, for the time of be rendered incapable to defend bimself in a committing the treason is not therein laid with case which may prove so fatal to him. sufficient certainty.

Our books, my lords, furnish us with many L. H. Steward. I think the matter moved instances where indictments have been held to by my lord is, that his counsel should be ad- be insufficient for less faults than not specifying mitted to shew that the Impeachment is in the day when the offence was committed, but sufficient, in respect that the time therein is in cases so plain, I will not trouble your lordnot laid with sufficient certainty. This I ships with citing authorities; for I believe think is the matter moved. Will your lord- there is not one gentleman of the long robe ships be pleased that the counsel bave leave to but will agree, an indictment for any capital speak ?

offence to be erroneous, if the offence be not L. H. Steward. Is it your lordships' pleasure alleged to be committed upon a certain day. that the counsel for the prisoner may be al. My lords, an attainder upon an Impeachlowed to speak to this point ?--Lords. Ay, ay. ment subjects the offender to the same punish


ment, the same forfeitures, as an attainder of Teviotdalo, Northumberland, Cumberland, opon an indictment; and therefore I am at a and county-palatine of Chester, and elsewhere. Joss to find out a reason why there should not within this kingdom ? be the same certainty in the one as in the The next overt-act, which is actually leryother : if equal certainty be required in both, ing war, is not laid with greater certainty ; then we humbly submit to your lordships' for the Impeachment sets forth, " That the said judgment, whether this Impeachment be pot earl of Derwentwater, &c. their accomplices erroneous and insufficient, in that there is no and confederates, in or about the months aforeparticular certain time alleged when the trea- said, in the counties aforesaid, or some of them, son or the overt-acts were committed ? The did gather together great numbers of his maa treason alleged is conspiring and imagining jesty's subjects, and with them did assemble in the death of the king, and the Impeachment a warlike and traitorous manner, in order to sets forib, " That the conspirators, (and names raise tumults and rebellion within this kingdom; them) as false traitors to his present most sacred and having procured great quantities of arms, majesty king George, the only lawful and un ammunition, and warlike instruments, at the doubted sovereign of these kingdoms, having times and places aforesaid, or some of them, withdrawn their allegiance, and cordial love, did form and compose, or did assist in forming and true and due obedience, which they, as and composing an army of men, consisting of good and faithful subjects, owed to his said bis majesty's liege subjects, in order to wage majesty, did, in or about the months of Sep- war against his said majesty, for and in behalf, tember, October, or November, 1715, most and in favour of the said Pretender to the crown wickedly, maliciously, falsely, and traitorously of these realms; and at the time and times, imagine and compass the death of his most and places aforesaid, and at divers other times sacred majesty." 'My lords, a prosecution by and places within this kingdom, the said conImpeachment is a proceeding at the common spirators did levy and raise war and rebellion law, for ler parliamentaria is a part of the against his most sacred majesty,” &c. common law; and we humbly submit it to The next overt-act is proclaiming the Preyour lordships' consideration, whether there tender, which is more uncertain than any of is not the same certainty required in one the other; for the Impeachment sets fortb, method of proceeding at the common law, as “ That the aforesaid conspirators, during their in another ?

march and invasion aforesaid, in open defiance Your lordships observe with what of his most sacred majesty's just and undoubted certainty, as to the time the treason is alleged. title to the imperial crown of these realms, did It is said to be in or about the months of wickedly and traitorously cause and procure September, October, or November 1715. Who the said Pretender to be proclaimed in the most is able to say to which of these months, much public and solemn manner as king of these less to what day of either of these months, the realms.” forfeiture shall relate ? And how is it possible Here is no certain time or place alleged for the poble lord, the prisoner at the bar, to when or where the Pretender was proclaimed, make a defence to a charge so general, unless but only that it was during their march and inbe bring for witnesses all those persons with vasion. whom he has had any conversation during The last overt-act seems to be laid with those three months at least ?

greater certainty than the rest; for it is said, My lorıls, the overt-acts are alleged with the “ That the conspirators did, on or about the samé insufficiency and uncertainty as the 9th, 10th, 11th, 12th, or 13th of November treason itself is; for in charging the first overt- aforesaid, traitorously seize and possess themact, which is conspiring to levy war and to selves of the town of Preston, in the county depose the king; it is said, " That for accom palatine of Lancaster, against his majesty, and plishing and executing their said traitorous did then and there, in a warlike and hostile purposes, they the said James earl of Derwent manner, levy war, oppose, engage, and fight water, &c. did, in or about the said month, or against his majesty's forces, and did then and some of them, and at divers other times, and there cause and procure a miserable and horrid át divers other places within this kingdom, slaughter and murder of many of bis majesty's wickedly and traitorously agree, confederate, faithful subjects.” Here indeed are particular &c. to raise, excite, and levy, within the coun- days mentioned, but then the words. or about' ties of Teviotdale, Northumberland, Cumber- leave it at large, for no man can tell how inany land, and the county-palatine of Chester, and days may be included in these words or about'. elsewhere within this kingdom, a most cruel, We humbly apprehend that a charge of this bloody, and destructive war against his ma- high nature ought not to be alleged with such jesty, in order to depose and murder bis sacred uncertainty, and that the Impeachment is as majesty, and to deprive Irim of his royal state, erroneous as an indictment drawn in this crown and dignity.” My lords, can any thing manner would be; this being a proceeding of be more uncertainly alleged, than to say that the same nature, and according to the course the conspirators did, io or about the said months, of the common law. or some of them, and at divers other times, My lords, I do not pretend any great skill in and at divers other places within this kingdom, parliamentary proceedings, but presume to say cunfederate, &c. to levy war within the counties ibat in my liitle experience in business in other

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courts, I never saw a charge exbibited against It will, I believe, bardly be denied, but that any one that was laid in so uncertain a manner, in case of an indictmeot for treason, it would be unless in libels in the ecclesiastical or admiralty ill, if it were laid, that the party indicted comcourts, which cannot in the least influence the mitted the treason on or about the first of Sep. case now before your lordships ; this (as I have tember, 1715. observed) being a proceeding according to the It would be apparently worse, if it were laid course of the common law.

in an iodictment, that the party committed the Upon the whole matter, I humbly submit to treason in or about the month of September, your lordships judgment' whether, for the rea- 1715. sons I have offered to your lordships' considera- It would be still worse (because more ancer. tion, the Impeachment is not erroneous, and tain) if it were laid in an indictment, that the whether your lordships will think fit to proceed party committed the treason in or about the to judgment against the noble lord, the prisoner months of September, October or November, at the bar, upon an impeachment so uncertain 1715. and insufficient as I humbly apprehend this And, with great submission, this, as I humto be.

bly take it, is the very case before your lord

ships; I mean, taking it, that impeachments Mr. Williams. My lords, I am also as. and indictments, as to the material parts of signed, by your lordships, of counsel for this them, are to be measured by the same rules of unfortunate lord, and bumbly insist in arrest of law, as I humbly conceive they ought to be. judgment, that there is a defect in this Im- That the certain day, for the committing the peachment, in regard no certain day is laid, treason, ought to be laid in case of indictments when the treason is charged to bave been com- for treason, seems to be proved, not only from mitted.*

the constant practice of laying a day certain in In the Impeachment it is said, that this all indictments of treason; but from the reason noble lord did, in or about the months of Sep- of the law, which shews it to be a substantial tember, October or November, 1715, together and material part of the indictment. with the others in the Impeachment named, That the constant practice, in case of indict. traitorously compass the death of his most ments for treason, is to lay the day on which sacred majesty : that this noble lord did, in or the treason is supposed to be done, will, as I about the said months, or some of them, toge- presume, be adınitted. ther with the rest, agree and confederate to And such constant practice is, of itself

, a levy war against bis majesty : that in or about strong argument that the law requires it. the said months, or some of them, thiş poble But I bumbly take it, that the reason of the lord with others did levy war, and did march thing argues still much stronger for me, and through several parts of the kingdoms, and did shews it to be an essential part of the indictproclaim the Pretender to be king; and that ment. on or about the 9th, 10th, 11th, 12th, or 13th The reason of mentioning a day certain in of the said November, the noble lord with others the indictment when the treason is supposed to did seize and possess themselves of the town of have been committed, is in some respects even Preston, and fought against his majesty's forces. for the benefit of the crown itself, and in some

This is the effect of the Impeachment. respects for the advantage of the party io

And with great submission I take it, that in dicted. point of law, the Impeachment is defective in It concerns the crown, in respect of the for. respect of the uncertainty of the time when feitures accruing to the king, of the lands of this treason is said to have been committed. the party indicted; for where an attainder en

I humbly apprehend that the honourable the sues upon an indictment for treason, the lands House of Commons is the grand inquest of the of the party indicted are forfeited to the crowo, whole nation; and that their Impeachment is not only from the judgment, but from ibe day in nature of an indictment, found by that grand mentioned in the indictment when the treason inquest : differing from an indictment in this is charged to have been committed. respect, that an indictment is found by the in- This is expressly said, in the lord Coke's 1 quest of a county only; but an impeachment Inst. 13, a. 6. 390, b. and the difference there by the grand inquest of the whole kingdom. taken is, between a writ of appeal and an in

And taking it, that impeachments are pro. dictment. It is there said, That if a man be perly to be resembled to indictments.

indicted for a capital offence and outlawed Then as the omitting of the laying of a cer- upon it, the land of the party is forfeited from tain day when the treason was committed, the day laid in the indictment, for the comwould be a material fault in the case of an ind mitting of the treason, or other capital crimes; dictment; with great submission, it is as ma- but in the case of an outlawry upon a writ of terial a defect in the case of an impeachment. appeal, because no day is mentioned in the It seems plain, that in the case of an indict- writ, the forfeiture is only from the judgment

. ment, a certain day ought to be laid when the And though in the case of a writ of appeal

, treason was committed.

which is called in Latin breve, from its brevity, * As to this, see in this Collection the Case upon the appeal (which resembles an ivdict

no day is mentioned, yet in the declaration of Robert Lowick, vol. 13, P: 267.

ment) it is necessary not only to mention the

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day, but even the bour when the murder or fe- your lordships, upon a writ of error before your lony was committed.

lordships, which shews how strict the law is in In the case of Wilson against Law, which the penning of indictments for treason; and was adjudged in the court of King's-bench, that it requires that even what seems to be matin the 6th year of king William and queen ter of form only in such indictments, must be Mary, in an appeal of murder, an excep- complied with : it is the case of the king against tion was taken to the appeal that it was too un- Tucker, wbich was in the 6th year of king certain, in regard the murder was laid to be William and queen Mary, and is reported in done, circa boram primam post meridiem,' serjeant Levinz, 3 Rep. 396, where Tucker and this incertainty even of the bour was much was indicted for treason, and in the conclusion insisted upon : but this, it is true, was at length of the indictment it was not said to be contra over-ruled, and held that circa horam pri- allegiantiæ suæ debitum;' and upon this in* mam,' or inter horam primam et secundam,' dictment Tucker was attainted, and his lands was well enough.

forfeited to the crown, and afterwards purHowever no one, as I bumbly apprehend, chased under the attainder; but afterwards ever doubted, but that laying of a certain day this attainder was reversed in a writ of error in when the fact was committed, is necessary both the King's-bench upon very great debate, for in the case of an indictment, and in a declara- want of those words in the indictment, contra tion upon an appeal; and that as to the land of . allegiantiæ suæ debitum,' and upon a writ of the party indicted, the forfeiture relates to the error before your lordships the judgment of reday mentioned in the indictment.

versal was affirmed, by which means a purBut if the question were asked in the pre- chaser under the attainder lost the estate. sent case, from wbat day the real estate of this With submission, this case is much stronger unhappy lord should be forfeited ? It would, than the principal case now before your lordas I humbly apprebend, be difficult to answer it. ships.

And tbat difficulty arises from the incertain- In that case it might with seeming reason be ty of the Impeachment, as to the time when objected, that the word proditoriè, which is al. the fact was committed.

ways in the body of every indictment, shews, If then, the laying in an indictment the cer- and necessarily implies, that the treason comtain day when the treason was committed mitted was against the party's allegiance, for concerns the benefit of the crown, as it surely else how could it be proditoriè ? does ;

Also in that case ihe treason is set forth at If it entitles the king to the forfeiture of the large in the indictment, together with the overt lands from the day laid in the indictment, as act, which demonstrates that the doing this from the authorities I have mentioned it appears must be against the party's allegiance. to do;

But all this would not maintain the indict. If this matter concerns that great preroga. ment, in regard indictments for treason were tive and flower of the crown, and its right to always laid to be against the party's allegiforfeitures;

Then surely this omission can by no means And if the constant forms of indictments be be called a slight omission, or a fault in form an argument, only.

It is as strong a one for us in the present It will also have its weight with your lord- case ; for I believe tbere never was an indictships, that the mentioning a day certain in the ment without mentioning the day when the indictment, when the crime is laid to have fact was committed. been dope, is likewise for the benefit of the Neither with submission, is this matter of party indicted. It is for his advantage to form only, but it is the substantial part of the know the time when he is charged to have com- indictnient, in regard in this point the king is mitted the offence, and by that he will be the interested in respect of the forfeiture, and the better enabled to defend bimself against the ac- party in respect of his defence, cusation.

It will, I humbly presume, hardly be exIt is a known rule in law, that in all cases of pected from us, that we should cite precedents indictments, (though for misdemeanors only) of impeachments, especially, if it were known they ouglat to be strictly certain.

what few hours notice we had of attending This rule holds a fortiori in cases of indict- your lordships in Arrest of Judgment. ments for capital offences;

However, I will beg leave to mention one And still, & fortiori, in cases of indictments case of an Impeachment fresh in your lordfor high treason, where, for example sake, tbe ships' memory, Dr. Sacheverell's Case. judgment, though just, is as terrible as can well Dr. Sacheverell * was impeached before be thought of

your lordsbips by the honourable House of My lords, I am sensible I ought to have too | Commons, for seditious expressions in two Ser. great a value for your lordships' time, to cite mons, the one preached at Derby assizes, and any of those numerous cases in the law-hooks, the other at St. Paul's, London; and in that which justify that known rule in the law that Impeachment the precise days are laid when requires certainty in cases of indictments.

I sball only beg leave to mention to your * See his Case at the beginning of the prelordships one case, which is an authority of sent volume. VOL. XV.

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Trial of the Earl of Wintoun, [884 the Doctor preached each of these two Ser- peachment insufficient; nor do they think it

necessary, in justice to the noble lord at the And I humbly take it, that by a like reason har, that a certain day should be mentioned in a certain day ought to be laid in the Impeach- the Impeachment. They do not think from ment, when this treason was committed; and the nature of this crime, and the evidence that that the authority of Dr. Sacheverell's Case has been given, that there can be any hardship seems so much stronger than the present case for want of fixing a certain day on which the in question, as the crime of treason is higher treason was committed. What he is charged than that of a misdemeanor..

with, is being concerned in a most notorious My lords, I have nothing else to say on be rebellion. The time mentioned in the Impeachhalf of this unhappy lord ; unhappy, as being ment is the months of September, October, and in that doubtful state of memory, not insana November, and particularly the ninth, tenth, enough to be witbin the protection of the law, eleventh, twelfth, and thirteenth days of Nonor at the same time sane enough to do him. Pember. He is charged with being concerned self in any respect the least service whatever. from the time that he left bis own house, to the [Here the Managers gave some interruption to been proved, I believe, in a more ample manner

time he was taken at Preston; and it bath the Counsel.]

than ever any crime of the like nature hath L. H. Sleward. Mr. Williams, 3 apprehend been. And how can this noble ford suffer be. the reason why the managers of the House of cause no particular day is mentioned, after be Commons appear uneasy with you, is, that you continued in rebellion for so many days and are going into a matter of fact, and which you months, and marched through so many counhave not leave to speak to ; you must therefore ties ? It is impossible to conceive he can suffer confine yourself to the point of law that was from any uncertainty in the Charge, in not stated.

having a particular day fixed. But, my lords,

the Commous think themselves sufficiently Mr. Williams. My lords, I shall take up no more of your lordships' time ; but humbly hope justified, and their impeachment supported by that the cases of indictments are parallel with jord Stafford, who was tried for high-treason,

a precedent I have in my hand, the trial of my those of impeachments;

And I obThat, as in an indictment for treason the and was executed for the same. want of laying a day when the treason is

serve that he had counsel, and it appears he charged to have been committed, is a manifest offered some things in arrest of judgment; and

although it will appear that the time was more error ; That as the constant forms of indictments uncertain in that Impeachment, yet that was

never attempted to be offered in arrest of judgare so ; That as the reason of the law requires they

ment. In his case the words of the Articles of should be so;

Impeachment are, that for divers years last So for want of this certainty in this Impeach- past, a damnable contrivance and conspiracy ment, we will, great submission insist that the bad been formed and carried on, that is just as Impeachment is defective:

these Articles are; and when they come to the And therefore pray that the Judgment against the time aforesaid, &c. that is, some time

particular charge, all that is said is, that within this unfortunate lord may be arrested.

within divers years last past; but this ImpeachMr. Walpole. My lords, the Commons have ment is so far from being uncertain, that the attended to the objection made by the counsel Commons have named three months, in which on the part and behalf of the noble lord at the the treason charged in the Impeachment was bar, and they humbly conceive those learned committed; and in the precedent it is only gentlemen seem to forget in wbat court they said, withiu some of the years last past; so that

They have taken up so much of your here the Commons are sufficiently justified in lordships' time in quoting of authorities and the Articles exhibited by them, by the prece. using arguments to shew your lordships wbat dent I have mentioned, and there judgment would quash an indictment in the courts below, passed, and nothing of this pature was offered that they seem to forget they are now in a in arrest of judgment. I hope this will satisfy court of parliament, and on an Impeachment your lordships, that this Impeachment is sufiof the Commons of Great-Britaid. For should cient potwithstanding this objection; and ! the Commons admit all that they have offered, hope it will never be allowed here as a reason, it will not follow that the Impeachment of the that wbat quasbes an indictment in the courts Commons is insufficient; and I must observe below, will make insufficient an impeachment to your lordships, that neither of the learned brought by the Commons of Great-Britain. gentlemen have offered to produce one instance relating to an impeachment, I mean, to shew Attorney General. My lords, the counsel that ever the sufficiency of an impeachment for the prisoner have made two objections, as ! was called in question from the generality of apprehend, in point of law, which I would the charge, or that any instance of that nature give a short answer to, without taking notice of was offered at before. The Commons do not the other matter wbich was spoke 10 by one of eonceive, that if this exception would quash an the gentlemen coutrary to the orders of the indictmeat, it would therefore make this 118- House.


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