249. 2 Rolle's Abr. 82. 1 Croke 449, and Jones 379. And I could instance in many precedents that are drawn accordingly. I shall mention some few on this very act of parliament. They are all in the same term, Mich. 1,5 and 16 queen Eliz. in this court, and against the same person, Robert Johnson, of St. Clements Danes, clerk. One of the indictments is for speaking against the Book of Common Prayer, contra formam statuti:' Another against him, for omitting the Litany, Epistle and Gospel, in saying the Divine Service :' Another against him, for christening a child, and not signing him with the sign of the cross:' another against him, for marrying a 'couple without a wedding ring: another against the same person, for saying morning and evening service without a surplice.' And though the preamble and inducement to every one of these indictments make an heavy complaint against the person that is so indicted, as if he intended to destroy the Protestant religion by law established, and overthrow the government, yet they all conclude contra formami statuti.' Now, my lord, according to the rule and precedents I have cited, this indictment that is now before your lordship should have set forth, that the defendants did not move sir John Friend and sir William Perkins to a special confession of their sins, but without it gave them absolution, contra formam statuti.' But supposing, my lord, it should be answered, that the indictment is rather for the ill intention of the defendants, than for not observing the Rubric; with humble submission to your lordship, if such an indictment may be brought, yet this before your lordship is not rightly framed, but is insufficient and uncertain in relation to that very intent: For the indictment says, these defendants conspiring, intending, and designing the execrable, horrible, and detestable treason, for which sir John Friend and sir William Perkins were then just going to be executed, to justify, or at least to extenuate, diminish, and undervalue, &c. did absolve them. Now, my lord, non constat which they aimed at, justifying or undervaluing; and they cannot be found guilty of all: for though the verdict be general as to this, yet it is according to the indictment, which is in the disjunctive, Et in disjunctivis sufficit unum verificari.' Therefore our common law doth always require certainty, but especially in indictments; they ought to be certain to every intent, that a certain judgment may be given on them. Where a man in pleading sets forth his title by a conveyance, in which are the words' give, grant, ' release, confirm, bargain, sell,' &c. he must shew which of them he makes use of, and which he applies to his purpose, or else his plea is naught, 1 Ventr. 109. The return of a Habeas Corpus sets forth the commitment, Et hæc est causa captionis seu detentionis,' adjudged an ill return, 1 Ventr. 324. In Trinity Term last, in this court, there were several indictments against Baker and others for exercising the trade of a rope-maker, existens | misterium infra regnum Angliæ vel Walliæ ;' and there, although the offence was the same whether it were a trade in England or Wales, yet for the uncertainty which the disjunctive made, the indictment was quasbed. And in the last term (H. 9 W. 3. B. R.) Sanky and another quaker were brought up by Habeas Corpus,* and the return set forth a commitment by two justices, by virtue of the statute 27 H. 8, c. 20, reciting a certificate from the commissary, that a cause of subtraction of tythes or other ecclesiastical duty was depending in the ecclesiastical court, to which the defendants refused to answer. In that cause, though the words of the act of parliament are strictly pursued, which gives the same remedy where the fact is for other ecclesiastical dues as it does for tythes, yet because the certificate on which the return was grounded, did not set forth in particular for what the suit was commenced in the ecclesiastical court, but only in the disjunctive, for that reason the commitment was held insufficient, and the parties discharged. In Mr. Rowe's case, Bendlow, fol. 60, in Replevin, the plaintiff claims common appurtenant to a manor or a messuage called Cursall Grange, by prescription, and they were at issue on the prescription; but in arrest of taking the inquest, it was shewn to the court, that the prescription was uncertain for the common, to wit, to the manor or messuage: where he ought to have claimed it to one only. And the court adjudged them to re-plead, though the place itself was expressly and certainly named, and called Cursall Grange. In the same book, fol. 177, pl. 39, an ejectment de una acra terræ sive prati' adjudged ill; and so is the same case reported, Dyer 264, pl. 39, and 1 And. 31, pl. 73. An inquisition on a diem 'clausit extremum' finds, that a man was seized de uno messuagio sive tenemento,' was held void and insufficient, Ley. 9, 13 Rep. 48. So an ejectment de uno messuagio sive tenemento' is ill, even after a verdict, 1 Rolle's Rep. 7, 334. 2 Rolle's Abr. 80. 3 Lennard, 228. Ley. 43. 2 Cor. 621. 1 Siderfin, 295. 1 Cro. 188, and many other books. And in Noy's Reports, on the like occasion, it is said, that a writ in the disjunctive is void. And in Popham, fol. 203, it is held, that an ejectment 'de burgagio sive tenemento' is naught. Though indeed in serjeant Hardresse's Reports, fol. 173, in the case of Danvers versus Willington, it was held, that an ejectment pro uno messuagio sive burgagio' in Hay infru Muros was good enough; but the reason given was, because messuagium et burgagium' signify the same thing in a borough. There was a cause (Pasch. or Tr. 8 W. 3.). about two years since in this court, it was an indictment against Stoker, for that he fabricavit, seu fabricari causavit,' a certain bill.† Exception *See Lord Raymond, 323. Holt, 657. 12 Mod. Rep. 165. + See Stocker's Case, Salkeld, 342. 371. 5 Mod. Rep. 187. was taken to it, because it was in the disjunc tive, whereas it ought to have been positive and particular. And I think the counsel for the prosecutor could never get over that exception; and, to the best of my remembrance, there was but one answer that was aimed at, and that was, that the offence and fact were the same; for he that caused it to be counterfeited, might be truly said to counterfeit it: but I think that was not held a good answer to that exception. But in our case that cannot be pretended: Justificare' and Vilipendere' are of a very different signification. The very indictment doth insinuate as much; Justi 'ficare, vel saltem extenuare, diminuere, et vilipendere.' The vel saltem' doth shew, that the subsequent words are not of so great force as those precedent. And indeed almost opposite they are; for he that justifies, denies that it was an offence; whilst he that diminishes or undervalues it, says truly, it was an offence, but not so great as is pretended. And, my lord, by reason of this uncertainty, the court must be in doubt what judgment to give; for it is evident, he that would justify sir John Freind's offence would deserve a greater punishment, than he that should only lessen it, and say it was not so great an offence as Charnock's. Such an invasion is not so horrid and villainous, nor of so deep a dye, as that barbarous assassination that was intended. After such a manner, methinks, a man might lawfully extenuate an offence, when it would be highly criminal to maintain and justify the fact. Besides, Vilipendere' may be taken to vilify, contemn, and condemn the fact; and must that be thought a crime? And the necnon afterwards, with those other aggravations that are there added, cannot mend the matter: for all that harangue of persuading persons that sir John Freind and sir William Perkins were innocent, and the inciting the people to treason and rebellion, depend purely on the justification or extenuation of the crime; for if the fact were justified, people would be sooner induced to follow their example, than if it were acknowledged to be an offence, but the heinousness of it lessened, diminished, or vilified. And which of these the defendants aimed at was doubtful to him that drew the indictment, doubtful to the jury, and therefore I hope the court will give no judgment on it. Besides this, my lord, there is, I presume, another exception that may prove fatal to this indictment; and that is, the insufficient setting forth the attainders of sir John Freind and sir William Perkins, in not shewing when, where, or before what judges they were attainted, which, with submission to your lordship, ought of necessity to have been done. I acknowledge that a bare inducement requires not much certainty: but when it is such a matter, on which the whole doth so depend that you can make nothing without it, and when it is traversable, then it is substance, and must of necessity be certainly expressed. For instance, if J. S. be accused, either civilly or criminally, of an offence, which is not so but with relation to a fact of J. D. there the fact of J. D. must be certainly expressed. As in Hetley, 73. 3 Cro. 752. Plowman, a constable, was indicted for suffering one, who was arrested pro quodam felonia antea facta,' to escape; and because it was not shewn what felony it was, and when done, he was discharged. So in this case, if it be an offence to absolve traitors, whether they are attainted or no, then the treason ought to be specially and particularly set forth, and when and where it was committed: but if it be not an offence to absolve traitors, unless they are attainted, then that attainder ought to be as fully and plainly expressed as the time and place where those traitors were executed, which in this indictment is carefully set forth. And that this indictment is faulty in this particular, I shall endeavour to prove, as well by precedents, as by the opinions and judgments in our books of law. But inasmuch as this indictment is primæ impressionis,' I must trespass on your lordship's patience, whilst I refer to other precedents in which records are mentioned and recited, and from a parity of reason reduce them to the present case. I shall begin with precedents of declarations. If an action of debt be brought against a sheriff for the escape of one in execution, the time and place, and the court in which the judgment was obtained, is always mentioned, Hern. 74. Robinson, 311. Brown's Entries, 1 par. 18. 2 par. 15. Brownlow's Lat. Rediviv. 33. Thompson, 122. and Vidian 193, 197. and several other books. So against a sheriff for not taking one in execution that was in his presence, sets forth the judgment, and out of what court, when and where the execution issued. Upper Bench Precedents, 79. Aston, 57. 2 Brownlow, 35, 36. An action for maliciously indicting the plaintiff for felony sets forth, when, where, and before whom the indictment was. Vidian, 145. Hansard, 24, 25, and 53. An information against one for taking and carrying away the goods of a felo de se, sets forth the inquisition, and before whom it was taken. Old Book of Entries, 225, b. An information for intruding into lands which came to the king's hands by attainder, sets forth the record of attainder, where, when, and before whom. Rastall's Entries, 387, 412. Plowden's Commentaries, 547. Ashton, 181. And so, my lord, in all good precedents, where records of attainder are mentioned, the time, place and court are always set forth. So is Wiat's attainder, Co. Entries, 79. Rastall, 413, b. Plowden's Com. 449. So is Littleton's attainder, Co. Entries, 422, b. And Trussel's attainder, Co. Entries, 246, b. the duke of Somerset's attainder, Co. Entries, 481, and the attainder of John Bary, in the same book, fol. 699. So if the master of the Crown-Office takes an inquisition concerning the escape of any prisoners of this court, according to the 39th of H.6, c. 33, the record on which they were 857. And in an action for maliciously indict. ing a man of perjury, he must set forth the indictment, and shew that it was preferred before one that had conusance of such matters. And that is not all; he must likewise shew, that the cause in which he swore was coram judice, 3 Cro. 725. He that pleads a presentment in a court leet, must set forth the day when the court was holden, 2 Saunders, 290. 1 Ventris, 107. And therefore to plead that at quandam curiam' he was amerced, is ill, Modern Rep, 75. An indictment of maintenance in quodam ' placito coram Domino Rege pendente,' not mentioning where the King's-Bench sat, was held fatal in arrest of judgment, 1-Ventr. 302. committed is fully taken notice of, as I have all the special matter shall come in by the cerseen a precedent, Mich. 4 & 5 El. Rot. 7. In tificate: and although the justices of gaol-dethe case of Mr. Braddon and Mr. Speake, the livery, or other justices, before whom the conindictment* doth not only say that my lord viction or attainder is, do not certify the ori Essex did murder himself at such a time and ginal, it is not material, so that they certify the place, but adds further, as by inquisition taken body of the record of the attainder or convic at the Tower of London aforesaid, upon view tion." These are the words of that book: and, of the body of the said Arthur earl of Essex, my lord, it must be on the same reason, that and now in this court remaining of record, where a man pleads a conviction of recusancy, * does more plainly appear.' So the indictment he must shew before whom it was, Noy, 89. against Tasborough and Price,† for suborning 97. And so are the precedents in Winche's Dugdale to retract his evidence that he had Entries, 522, 523, 524. 2 Brownl. 15. Hern. given against the Popish Recusants, &c. sets 503. So in an action for maliciously indicting forth the record, where and before whom such a man for treason, it is not sufficient to say he convictions were. So in the case of Thompson, did indict the plaintiff; nay, if he adds coram Pain and Farewel, for printing and publishing such persons, justices of the peace, and omits a scandalous pamphlet relating to sir Edmond-ad gaolam deliberand' assignat', it is ill, 2 Cro. bury Godfrey's death, the information doth not begin like this indictment, Whereas Green, Bury, and Hill, were attainted of murder;' but sets forth, That it was in such a court, in such a year and term, with the indictment and attainder at large, and where the record is to be found. 1 could instance in many more precedents of the like nature; but I fear I have tired your lordship's patience too much already, and therefore shall conclude with one that will lead me to the opinions and judgments in our books of law, which I hope will be of use to fortify the precedents I have cited to prove this indictment vicious. It is in Keilway, 193. An inquisition that finds the attainder of one Bays: the record is large, and therefore I shall not recite it, nor make any other observations on it than what are in the very report, which are in these words: "Memorandum. This Inquisition was drawn by good advice, that is to say, by the council of king Henry the 7th; yet the inquisition which entitled the king to the land, by reason of the attainder of the said Bays, doth not make any mention of the indicters, nor of the names of the justices of peace who took the indictment, but only the day of the the indictment taken, and the day of his attainder, without expressly mentioning what kind of felony, but · pro quadam felonia,' and the names of the justices before whom he was attainted." These are the words of the reporter: and, my lord, that this case is of general concern, appears by the next case in that book, Keilway, 194. An indictment was found on the escape of certain persons convict, without shewing before what justices the conviction was; and after the matter was considered at the bar and the bench, the indictment was held insufficient: but says that case," The names of the justices of peace before whom the original indictment was taken is not material, nor the specifying of the felony, prout patet supra' in the case of Bays; for where the court is instructed to whom to write to certify the record, * See the Indictment in English and Latin, vol. 9, pp. 1128, 1129, of this Collection. + See the Indictments in English and Latin, vol. 7, pp. 881. 884. + See the Information, vol. 8, p. 1359. An indictment for a second offence, where the punishment is greater than for the first, ought to recite the former conviction, 1 Lennard, 295. So it was done in Roger Booth's Case, Mo. 666, pl. 913. In 3 Keble, 737, an indictment for a second offence of printing did set forth the first, but did not say where it was; therefore Twisden held the indictment naught. And if there be a necessity of setting forth so precisely the first conviction, to make the second offence the greater, methinks, in reason, it must as certainly be set forth, where it gives the very esse to the offence. And if such a general way of referring to records should be allowed in indictments, it would not only overthrow all the precedents and other authorities I have cited, but the defendants must needs lie under several inconveniences. They would then be cut off from the privilege of pleading 'Nul 'tiel Record,' or traversing it, as was done in Bays's Case before-mentioned: for, although such a traverse might amount almost to the general issue, yet comprehending matter of law, the defendants may plead it specially, Hobart, 127. And if the defendants plead the general issue, how shall they know where to go to find out the record, to see whether a true copy be produced against them? And it cannot be a sufficient answer to say, that the indict ment sets forth that debite et legitime' they were convicted and attainted; it must be shewn after what manner they were attainted, that the court may judge whether it was legally done or no. In Patrick Harding's Case, in the first year of this king and the late queen (it is re ported in 2 Ventr. 816),* the indictment against him was for high-treason, and did set forth that he adhered to the king's enemies. The jury found, that he listed and sent soldiers to the French king, then an enemy to our king and queen: but the court held the indictment too short there, because it mentioned hostibus 'et inimicis' generally; whereas it should have set forth who those enemies were, that the court might take notice whether they were enemies, as the law intended. had wreck appendant, and that he was de 'alta proditione dedito modo attinctus,' and that found before the escheator; and shewed further, that that manor descended to queen Mary, who granted the same to the earl of Westmoreland, who granted the same to the defendant: upon which it was demurred; and exception was taken to the plea, because the attainder is not fully and certainly pleaded. It was argued by Plowden, counsel for the defendant, that the attainder was certainly pleaded, In the case of Woodly and Bezly, 2 Cro. scilicet, debito modo attinctus: For, says he, 291. Yelverton 213. 1 Brownlow 114. In it is shewn that the wreck is appendant to the debt for rent upon a lease for years, the plain- manor, and then if he hath the manor, he hath tiff derives his title by the grant of the reverthe wreck also: and if he had the manor, it is sion by way of bargain and sale in fee from the not material to the queen how he hath it; for first lessor, and declares, that by indenture of the queen doth not claim the same, but imsuch a date, one grants, bargains and sells for peacheth the defendant for using there such money to him the reversion in fee, which in- a liberty. But he there grants, that if the denture was inrolled such a day' secundum heir of the duke had demanded the manor there ◆ formam statuti;' and on nil debet pleaded, against him, the attainder ought to have been there was a verdict for the plaintiff: vet judg- pleaded certainly. And if so much certainty ment was arrested, because the plaintiff had be required in pleading an attainder that makes not shewn in what court the indenture was in- a title to an estate. that attainder must needs be rolled; though it might have been, and un- as fully, as clearly, and as certainly set forth; doubtedly it was alledged, that it was but a that is the ground-work and foundation of an conveyance to the title, and an inducement to indictment for that which is called a very great the action, and secundum formam statuti' offence, which is not for absolving two persons shews it was debite et legitime.' So in Allen in the parish of Paddington, nor for absolving 19. King against Somerland. In debt for rent two impenitent traitors, but for absolving two per the plaintiff declares on a lease for years made sons attainted of high-treason, who did not re by a stranger, who bargained and sold the re-pent of that treason of which they were atversion' per indenturam debito modo inrotulat' in Curia Cancellaria.' After a verdict for the plaintiff, on nil debet pleaded, it was moved in arrest of judgment, that he had not alledged the inrollment to be within six months, nor 'secundum formam statuti;' and though it were said to be debito modo, yet that would not mend the matter, nor aid the incertainty, and therefore judgment was arrested. So in the same book and folio, Colman against Painter. In an action by the lessee against his lessor on a covenant for peaceable enjoyment, he assigns for breach a former lease to J. S. The defendant pleads, that the lease to J. S. was with condition of re-entry for non-payment of rent, and that before the lease made to the plaintiff, the rent was behind, and legitime demandat' 'secundum formam indenturæ,' and upon nonpayment he re-entered, and made the lease to the plaintiff and upon demurrer it was resolved, that the demand was insufficiently alledged; for, says the book, he ought to set forth certainly, when and where it was made, that it might appear to the court to be legal. I shall trouble your lordship but with one case more to this point; it is in 3 Lennard 72. A Quo Warranto was brought by the queen against sir John Constable, who claimed cer tain wreck in the county of York. The defendant pleaded, that Edward duke of Buckingham was seized of such a manor, to which he See, also, in vol. 12, p. 645. of this Collection, a Note of Patrick Harding's Case from the MSS. of sir William Williams. VOL. XIII. tainted. There are, my lord, I think, some other faults in the indictment. It mentions, That sir John Freind and sir William Perkins were attainted for high-treason, in compassing the king's death, and adhering to his enemies ; which were two treasons in each of them, and consequently four in all. Yet afterwards the indictment says, that these defendants intending to justify the horrid treason aforesaid (in the singular number.) So in the conclusion, that the absolution was given absque aliqua pænitentia pro alta proditione prædicta prius 'declarata,' without shewing which treason in particular was unrepented of; and each of them was not obliged to repent of all the treasons, for they were not all his own. And is like the case this very term in this court, where a rescous was returned against two persons, that they had rescued J. S. prædict' without shewing which, and there was J. S. senior, and J. S. junior before-mentioned; and for this incertainty that return was quashed. And it seems to me to bear some resemblance to the case of Tindall and Cobbs, 3 Lennard, fol. 9, 10. In an action of waste, the declaration shews the demise of the manor of Wolverton and other lands, and assigns the waste in quodam bosco 'vocat' Wolverton Wood, purcel' præmissor'; and it was held insufficient, for that it could not be parcel of the manor and other lands also. I must likewise humbly submit it to your lordship, whether the fact itself be sufficiently set forth, et eos absolvi pronuntiaverunt,' pro 2 G nounced them to be absolved: whether it does not refer to somewhat to be done hereafter, and ought not rather to have been, eos absoJutos pronuntiaverunt.' The proclamation for evidence before the jury is sworn, which ought to be after, and several other informalities in the indictment and proceedings, I should have spoken to; and have justified and maintained the imposition of hands, from the doctrine and practice of our church; and likewise have said somewhat to the matter that is specially found, to prove that these defendants are thereby acquitted of the whole but these things will (I doubt not) be much better done by such other counsel as your lordship shall please to hear for the defendants. I am sensible I have already been too tedious, for which I humbly beg pardon of your lordship, and pray your judgment for the defendants. 392. The Trial of JOSEPH DAWSON, EDWARD FORSEITH, WILLIAM MAY, WM. BISHOP, JAMES LEWIS, and JOHN SPARKES, at the Old-Bailey, for Felony and Piracy: 8 WILLIAM III. A. D. 1696.* Admir. Angl. ss. THE Sessions of Oyer and Terminer, and gaol delivery, held for our sovereign lord the king, for the Jurisdiction of the Admiralty of England, at Justice Hall in the Old Bailey, in the suburbs of the city of London, on Monday the 19th day of October, in the 8th year of the reign of our said sovereign lord king William the 3d, over England. &c. before the right hon. Edward Russel, esq. Henry Priestman, esq.; sir Robert Rich, kt. and bart. ; sir George Rooke, kt. sir John Houblon, kt. and James Kendal, esq. Commissioners for executing and exercising the office and place of Lord High Admiral of England, respectively assigned and deputed; the right worshipful sir Charles Hedges, kt. Doctor of Law, Lieutenant in the High Court of Admiralty of England, Commissary General of our sovereign lord the king, and President and Judge of the said court; the right hon. sir John Holt, kt. Lord Chief Justice of the King's Bench; sir George Treby, kt. Lord Chief Justice of the Common Pleas ; sir Edward Ward, kt. Lord Chief Baron of the Exchequer; sir Thomas Rokeby, kt. and one of the Justices of the King's Bench; sir Samuel Eyre, kt. another of the Justices of the King's Beuch; sir John Turton, kt. another of the Justices of the King's Bench; sir John Powell, kt. one of the Justices of the Common Pleas; sir Littleton Powis, kt. one of the Barons of the Exchequer; William Bridgeman and Josias Burchet, esqrs.; Secretaries of the Admiralty of England; Thomas Lane, William King, and John Cooke, respectively Doctors of Laws; and others his Majesty's Justices named in the said Commission. *This case, under the name of Rex v. May, Bishop and others, is cited in East's Treatise of the Pleas of the Crown, ch. 17, s. 3, from a Manuscript Commentary by Mr. Justice Treby upon lord Hale's Summary, of which an account is given by Mr. East immediately after the preface to his Treatise. His Majesty's Commissioners being then and there met, the Commission was read, and proclamation made for attendance: After which, the gentlemen of the grand jury were called and sworn, and received their charge from sir Charles Hedges, kt. Judge of the High Court of Admiralty, who set forth unto them the nature of the Commission, the extent of the jurisdiction of the court, and the subject matter of their enquiries. the grand jury withdrew, and after a little time Then the witnesses for the king being sworn, returned, finding Billa vera against Henry Every, not yet taken, Joseph Dawson, Edward James Lewis, and John Sparkes, prisoners, Forseith, William May, William Bishop, for feloniously and piratically taking and car"ying away, from persons unknown, a certain ship called the Gunsway, with her tackle, apparel, and furniture, to the value of 1,000/. and goods to the value of 110l. together with 100,000 pieces of eight, and 100,000 chequins, St. Johns, near Surat in the East Indies. Then upon the high seas, ten leagues from the cape Dawson, Forseith, May, Bishop, Lewis, and Sparkes, were brought to the bar, and their Indictment was read. |