House of Lords Journal Volume 20: 19 March 1716

DIE Lunæ, 19 Martii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

White's Nat. Bill.

Hodie 1^a vice lecta est Billa, intituled, "An Act for naturalizing Caspar White."

The House was adjourned during Pleasure, to robe.

The House was resumed.

E. of Wintoun, House to proceed to Judgement against him:

The House was adjourned into Westm'r Hall, to proceed further in order to Judgement upon George Earl of Wintoun.

And the Lords and others went in the usual Manner.

And, their Lordships being there seated, Proclamation was made for keeping Silence; as also Proclamation, requiring the Lieutenant of The Tower to bring the Prisoner to the Bar.

The Earl at the Bar:

Who was brought to the Bar accordingly, and there kneeled until the Lord High Steward directed him to rise; and then demanded of him, "If he had any Thing to offer, why Judgement should not pass against him according to Law?"

Whereupon he acquainted the Court, "That his Counsel had a Point of Law to speak to; (videlicet,) That he was not such a Person against whom Judgement for High Treason ought to be pronounced."

Sir C. Phipps, his Counsel, continues to speak, though interrupted by the L. High Steward:

And Sir Constantine Phipps, One of the said Earl's Counsel, beginning to speak to the Court; the same was objected to by some of the Managers for the House of Commons.

But the said Sir Constantine nevertheless continuing to speak, though interrupted by the Lord High Steward:

The House was moved, "To adjourn to the House above."

And their Lordships adjourned accordingly.

And being there resumed;

The House came to the following Resolution:

Judgement for Treason to be given against the Earl:

"That the Matter moved by the Prisoner at the Bar is a Matter of Fact, and not a Matter of Law; and that their Lordships are of Opinion, he is such a Person against whom Judgement for High Treason ought to be given."

Sir C. Phipps to be reprimanded:

And Ordered, That the said Sir Constantine Phipps be reprimanded by the Lord High Steward, for having begun to speak on Behalf of the Earl of Wintoun; there being no Point of Law stated, nor Leave given by the Court to speak to it: And that he be at the same Time told, "He ought not to presume to offer any Thing to the Court, without being first acquainted he is at Liberty so to do."

Then the House was adjourned again into Westm'r Hall.

And the Lords being there seated, and Proclamation for Silence made;

The Lord High Steward acquainted the Earl of Wintoun with the abovementioned Resolution; and also reprimanded Sir Constantine Phipps, as directed.

And then again demanded of the said Earl of Wintoun, "If he had any Thing to offer, why Judgement should not pass against him according to Law?"

The Earl moves in Arrest of Judgement:

Whereupon the said Earl moved, in Arrest of Judgement, "That the Impeachment is insufficient, for that the Time of committing the High Treason is not therein laid with sufficient Certainty."

And the Court directing the Counsel to speak to the same:

His Counsel heard concerning it:

Sir Constantine Phipps and Mr. Peer Williams were heard accordingly; as also some of the Managers for the House of Commons, in Answer to what the Counsel had offered.

And the Counsel having replied; and One of the Managers being heard, in Answer thereunto.

The House was adjourned to the House above.

And being there resumed;

Their Lordships were informed, "That the Commons, with their Speaker and the Mace, were at the Door."

They were called in; and Mr. Speaker, at the Bar, said:

"My Lords,

"The Knights, Citizens, and Burgesses, in Parliament assembled, did, at this Bar, in the Name of themselves and of all the Commons of Great Britain, impeach George Earl of Wintoun of High Treason; and exhibited Articles against him, and have made good the same: I do therefore, in the Name of the Commons in Parliament assembled, and of all the Commons of Great Britain, demand Judgement against the said Earl, for High Treason."

And they being withdrawn;

Questions put to the Judges, concerning the Matters moved in Arrest of Judgement by the Earl:

The following Questions were proposed to be put to the Judges; (videlicet,)

1. "Whether, in Indictments for Treason or Felony, it be necessary to alledge some certain Day, upon which the Fact is supposed to be committed; or, if it be only alledged in such Indictments that the Crime was committed on or about a certain Day, whether that would be sufficient?"

2. "And if a certain Day ought to be alledged, when the Fact is supposed to be committed, whether it be necessary, upon the Trial, to prove the Fact to be committed upon that Day?"

And the Judges being directed to deliver their Opinions thereupon:

To the First Question they said,

Their Answer:

"It is necessary, that there be a certain Day laid in such Indictments, on which the Fact is alledged to have been committed; and that the alledging, in such Indictments, that the Fact was committed on or about a certain Day, would not be sufficient."

And to the other Question, they said,

"That although a Day certain, when the Fact is supposed to be done, be alledged in such Indictments; yet it is not necessary, upon the Trial, to prove the Fact to be committed upon that Day; but that it is sufficient, if proved to have been done on any other Day before the Indictment found."

Matters moved in Arrest of Judgement not sufficient:

Then it was agreed by the House, and Ordered, That the Lord High Steward be directed to acquaint the Prisoner at the Bar, in Westm'r Hall, "That the Lords have considered the Matters moved in Arrest of Judgement; and are of Opinion, That they are not sufficient to arrest the same; but that the Impeachment is sufficiently certain in Point of Time, according to the Forms of Impeachments in Parliament."

And it being moved, "That the Judgement to be pronounced upon the Earl of Wintoun be the same as was pronounced upon the Six late condemned Lords;"

And, after Debate thereupon; and reading the Judgement in High Treason, as set down in the 101st Chapter of the 3d Part of Sir Edward Coke's Institutes; the following Order was made:

"Ordered, That the Judgement to be pronounced upon George Earl of Wintoun be the same as was pronounced upon the Six Lords lately condemned."

Message to H.C. that the Lords are going to give Judgement upon the Earl:

Then, a Message was sent to the House of Commons, by Sir Thomas Gery and Mr. Lovibond:

To acquaint them, that the Lords are presently going down into Westminster Hall, to give Judgement upon George Earl of Wintoun, who stands convicted of High Treason.

The Messengers, being returned, acquainted the House, "That they had delivered their Message."

The House was then adjourned into Westm'r Hall.

And the Lords being there seated, and Proclamation commanding Silence made;

Lord High Steward's Speech:

The Lord High Steward acquainted the Earl of Wintoun as before directed; and then spake as follows:

"George Earl of Wintoun; I have already acquainted you, that your Peers have found you guilty; (i.e.) in the Terms of the Law, convicted you of the High Treason whereof you stand impeached.

"After your Lordship has moved in Arrest of Judgement, and the Lords have disallowed that Motion; their next Step is, to proceed to Judgement.

"The melancholy Part I am to bear, in pronouncing that Judgement upon you, since it is His Majesty's Pleasure to appoint me to that Office, I dutifully submit to; far, very far, from taking any Satisfaction in it.

"Till Conviction, your Lordship has been spoke to without the least Prejudice, or Supposition of your Guilt; but now it must be taken for granted, that your Lordship is guilty of the High Treason whereof you stand impeached.

"My Lord, This your Crime is the greatest known to the Law of this Kingdom, or of any other Country whatsoever; and it is of the blackest and most odious Species of that Crime. A Conspiracy and Attempt, manifested by an open Rebellion, to depose and murder that Sacred Person, who sustains and is the Majesty of the Whole; and from whom, as from a Fountain of Warmth and Glory, are dispersed all the Honours, all the Dignities, of the State; indeed the lasting and operative Life and Vigour of the Laws, which plainly subsist by a due Administration of the Executive Power.

So that attempting this precious Life is really striking at the most noble Part, the Seat of Life, and Spring of all Motion in this Government; and may, therefore, properly be called a Design to murder not only the King, but also the Body Politic of the Kingdom.

"And this is most evidently true in your Lordship's Case; considering, that Success in your Treason must insallibly have established Popery, and that never fails to bring with it a Civil as well as Ecclesiastical Tyranny; which is quite another Sort of Constitution than that of this Kingdom, and cannot take Place till the present is annihilated.

"This your Crime (so I must now call it) is the more aggravated, in that, when it proceeds so far as to take Arms openly, and to make an offensive War against lawful Authority, 'tis generally (as in your Case) complicated with the horrid and crying Sin of murdering many, who are not only innocent, but meritorious.

"And if Pity be due (as I admit it is in some Degree) to such as suffer for their own Crimes; it must be admitted, a much greater Share of Compassion is owing to them who have lost their Lives merely by the Crimes of other Men.

"As many as have so done in the late Rebellion, so many Murders have they to answer for who promoted it: And your Lordship, in examining your Conscience, will be under a great Delusion, if you look on those who fell at Preston, Dumblain, or elsewhere, on the Side of the Laws and in Defence of settled Order and Government, as slain in lawful War; even judging of this Matter by the Law of Nations.

"Alas! my Lord, your Crime of High Treason is made yet redder, by shedding a great deal of the best Blood in the Kingdom: I include in this Expression the brave common Soldiers, as well as those gallant and heroic Officers, who continued faithful to Death in Defence of the Laws; for sure but little Blood can be better than that which is shed while it is warm in the Cause of the true Religion and the Liberties of its native Country.

"Believe it, notwithstanding the unfair Arts and Industry used to stir up a pernicious Excess of Commiseration towards such as have fallen by the Sword of Justice, (few, if compared with the Numbers of good Subjects murdered from Doors and Windows at Preston only;) the Life of One honest loyal Subject is more precious, in the Eye of God and all considering Men, than the Lives of many Rebels and Parricides.

"This puts me in Mind to observe to your Lordship, that there is another Malignity in your Lordship's Crime (open Rebellion); which consists in this, that it is always sure of doing Hurt to a Government in one Respect, though it be defeated: I will not say it does so on the whole Matter.

"For the Offence is too notorious to be let pass unobserved by any Connivance: Then is a Government reduced to this Dilemma; if it be not punished, the State is endangered, by suffering Examples to appear that it may be attacked with Impunity; if it be punished, they who are publicly or privately Favourers of the Treason (and perhaps some out of mere Folly) raise undeserved Clamours of Cruelty against those in Power; or, the lowest their Malice flies, is to make unseasonable, unlimited, and injudicious Encomiums upon Mercy and Forgiveness; (Things, rightly used, certainly of the greatest Excellence.)

"And this Proceeding, it must be admitted, does some Harm with silly undistinguishing People.

"So that Rebels have the Satisfaction of thinking they hurt the Government a little, even by their Fall.

"The only, but true, Consolation every wise Government has in such a Case (after it has tempered Justice with Mercy in such Proportion as found Discretion directs, having always a Care of the public Safety above all Things) is this:

"That such like Seeds of unreasonable Discontents take Root on very shallow Soil only; and that therefore, after they have made a weak Shoot, they soon wither and come to nothing.

"It is well your Lordship has given an Opportunity of doing the Government Right, on the Subject of your Surrender at Preston.

"How confidently had it been given out by the Faction, that the Surrender was made on Assurances, at least Hopes insinuated, of Pardon; whereas the Truth appears to be, that Fear was the only Motive to it: The evil Day was deferred; and the Rebels rightly depended, fewer would die at last by the Measures they elected, than if they had stood an Assault. They were awed by the experienced Courage, Discipline, and Steadiness, of the King's Troops, and by the superior Genius and Spirit of His Majesty's Commanders over those of the Rebels; so that, in Truth, they were never flattered with any other Terms, than to surrender as Rebels and as Traitors, their Lives only to be spared till His Majesty's Pleasure should be known.

"It was indeed a Debt due to those brave Commanders and Soldiers (to whom their King and Country owe more than can be well expressed), that their Victory should be vindicated to the present and future Ages from untrue Detraction, and kept from being fullied by the Tongues of Rebels and their Accomplices, when their Arms could no longer hinder it.

"It is hard to leave this Subject, without shortly observing, that this Engine, which sets the World on Fire, a lying Tongue, has been of prodigious Use to the Party of the Rebels, not only since and during the Rebellion; but before, while it was forming, and the Rebels preparing for it.

"False Facts, false Hopes, and false Characters, have been the greater Half of the Scheme they set out with, and yet seem to depend upon.

"It has been rightly observed, your Lordship's Answer does not so much as insist with any Clearness on that which only could excuse your being taken in open Rebellion, "That you was forced into it, remained so under a Force, and would have escaped from it, but could not."

"If you had so insisted, it has been clearly proved that had not been true; for your Lordship was active and forward in many Instances, and so considerable in a Military Capacity among your Fellow Soldiers, as to command a Squadron.

"These and other Particulars have been observed by the Managers of the House of Commons: And therefore I shall not pursue them farther; but conclude this Introduction to the Sentence, by exhorting your Lordship, with perfect Charity and much Earnestness, to consider, that now the Time is come, when the Veil of Partiality should be taken from your Eyes (it must be so when you come to die); and that your Lordship should henceforward think with Clearness and Indifference (if possible), which must produce in you a hearty Detestation of the high Crime you have committed; and, being a Protestant, be very likely to make you a sincere Penitent, for your having engaged in a Design that must have destroyed the Holy Religion you profess, had it taken Effect.

"Nothing now remains, but that I pronounce upon you that Sentence which the Law ordains, and which sufficiently shews what Thoughts our Ancestors had of the Crime of which your Lordship is now convicted; (videlicet,)

Judgement pronounced.

"That you George Earl of Wintoun return to the Prison of The Tower from whence you came; from thence you must be drawn to the Place of Execution; when you come there, you must be hanged by the Neck, but not till you be dead, for you must be cut down alive; then your Bowels must be taken out, and burnt before your Face; then your Head must be severed from your Body, and your Body divided into Four Quarters; and these must be at the King's Disposal.

"And God Almighty be merciful to your Soul!"

Then the Lord High Steward stood up uncovered; and, declaring, "There was nothing more to be done by Virtue of the present Commission," broke the Staff, and pronounced it dissolved.

And then the House was adjourned to the House above.

And being there resumed;

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque ad et in diem Mercurii, vicesimum primum diem instantis Martii, hora undecima Auroræ, Dominis sic decernentibus.