cross-examined the king's witnesses, and observed fully upon the evidence.*

After the verdict was brought in, the prisoner's counsel took notice of the act of gene. ral pardon passed in the third of the late king; and said, that possibly their client might upon consideration be found to be entitled to the benefit of it; and concluded with a motion, that the Court, before they award execution, would give them some time to consider the act, and to be informed by their client touching the circumstances of his case, that they might be able to submit his case to the opinion of the Court, how far he is, or is not entitled to the benefit of the act.

been falsified by the

But the Court declared, that the prisoner having once pleaded in bar of execution, and that plea having verdict, his plea is peremptory, and the verdict conclusive; and nothing now remaineth but for the Court to award execution.

Mr. Justice Foster was satisfied that the principle the Court went upon is a good general rule, but he thought it not universally true. He considered the case of a parliamentary pardon as an exception to it; for surely the Court will never, in any state of a cause, award execution upon a man who plainly appeareth to be pardoned. And therefore he thought that if any person, whether as counsel for the prisoner, or as amicus curia, will now shew that the prisoner is entitled to the benefit of the act, he ought to be heard. But to this it was answered by the Chief Justice, that the act of pardon containing mauy exceptions, both as to persons and crimes, the party who would take the benefit of it must plead it specially with all proper averments; so as to shew that he is not within any of the exceptions, according to the resolution (Carth. 131,) in the carl of Salisbury's case.

The counsel for the crown did not urge either of these points against the prisoner. And I have been since informed that, in favour of life, they were determined to wave them; and

1715; and likewise told him in what manner he made his escape out of Newgate, in mourning, with a brown tye wig, when under sentence of death in that gaol. He was asked if the prisoner was drunk when he made this confession; the witness said, No. He was then asked if he had been drinking himself when the confession was made; he answered, He never got drunk: when Mr. Radcliffe replied hastily, That some people would get drunk, if at free cost.

"The prisoner not examining any witnesses, the king's counsel made the reply; and the Lord Chief Justice summed up the evidence to the jury, who withdrew, and in about 15 minutes brought in their verdict, &c."

* It appears from sir James Burrow's Report of the cases of Rogers, Matthews and King, that those persons were kept in chains during the trial of issues which had been taken upon their respective identities. See a note to vol. 16, p. 99.

were provided with evidence, then attending in the hall, to prove (which was the truth of the case) that the prisoner, after his attainder, made his escape out of Newgate, which brought him within the exception in the 45th section of the act. And the prisoner's counsel being apprized of this by the counsel for the crown in a conversation between them at the bar, thought it in vain to press their motion any farther. And execution was accordingly awarded, and a rule made that it be done on Monday the 8th of December. And a writ was ordered to the lieutenant of the Tower to deliver the prisoner to the sheriff of Middlesex on that day; and another to the sheriff to receive him, and to cause execution to be done.

N. B. Since the prisoner's counsel, after sufficient time allowed thein to inform themselves of the true state of his case, had nothing to offer to induce the Court to think that their client was entitled to the benefit of the act, only that possibly upon further consideration, he may appear to be so entitled, there was certainly no room to delay the awarding execution upon so slight a suggestion from the bar. And Mr. Ratcliffe had no injustice done him in that respect. He was beheaded on Tower Hill on the day mentioned in the rule.

In the cases of H. Stafford (1 H. 7, 23, 24, 25. 1 Lev. 61. 1 Sid. 72,) and of Barkstead, Okey and Corbet, who were attainted by act of parliament, the tenour of the acts was removed by Certiorari into Chancery, and sent thence by Mittimus into the King's-bench: and the chief-justice pronounced the usual judgment as in cases of high treason.

There was no proceeding of this kind in the case of the duke of Monmouth, who was attainted by act of parliament 1 Jac. 2. For the action at Sedgemoor happened on the 8th of July 1685, which in that year fell out to be the last day of Trinity term, and on the 15th he was executed. But that was a time of great gre heat and violence, and few things then done ought to be drawn into example.

N. B. The act of the third of the late king giveth the party liberty to take advantage of it on the general issue, without specially pleading the same; (2 W. and M.) aud so doth that on

* "Mr. Radcliffe spoke to the Court and said he wished they had indulged him with longer time, that the earl of M-- and he might go the same journey together." Impartial History, &c.

therefore could not in the earl's case, ground itself on the rule of pleading laid down in Carthew; though the rule might possibly be mentioned obiter by some of the judges. I think the true ground the Court went upon, which indeed the reporter himself seemeth to hint at but very darkly, was, that the earl having been committed by the House of Peers upon an impeachment by the Commons for high-treason, this court cannot allow him the benefit of the act; it hath no cognizance of the crime he standeth charged with; the matter lieth before another and higher judicature, and thither his lordship must resort.

And there he afterwards had the full benefit of the act without being put to plead it. For on the of October 1690, upon reading the earl's petition, setting forth that he had been long a prisoner in the Tower, notwithstanding the late act of free and general pardon, and praying to be discharged, the Lords ordered the judges to attend on the Monday following to give their opinions, whether the earl be pardoned by the said act; on the 6th the judges delivered their opinions, that if his offences were committed before the 13th of February 1688, and not in Ireland, or beyond the seas, he is pardoned. Whereupon it was resolved that he be admitted to bail; and the next day he was bailed, and on the 30th of October (see the Journals of the Lords) he and his sureties were discharged from their recognizances.

Charles Ratcliffe, esq. according to a rule of the Court of King's-bench,† was executed on

• The rule laid down in Carthew from Plow den is laid down in the same latitude in many of the old books; but it is to be observed, that the acts of general pardon in those times, had no clauses enabling the party to avail himself of the pardon on the general issue without specially pleading the same. The first act which bath that clause, that I have met with, is the Act of Oblivion (12th Car. 2,) and all acts of general pardon since that time have had clauses to the same purpose. Foster, p. 45.

† On Nov. 21, Charles Ratcliffe, esq. (who was taken on board a French ship bound for Scotland, with Fitz James's horse) was brought under a strong guard from the Tower to the King's-bench bar, Westminster, in order to prove him the person convicted of high-treason for the rebellion in 1715, and who escaped out of Newgate; when his former judgment was read to him; but he told the Court he was quite unprepared, and desired longer time, and prayed that counsel might be assigned him; accordingly the Court granted him Mr. Jodrell and Mr. Ford for his counsel, and ordered him to be brought up to Westminster the Monday following.

Accordingly, on that day, Nov. 24, he was again brought to the bar, but refused to hold up his hand, or acknowledge any jurisdiction over him, but that of the king of France, where

guards, and one troop of horse grenadier guards, and a battalion of foot guards, marched about eight in the morning. The horse lined

he had lived about 30 years, insisting on a commission he had in his pocket from the French king; but on hearing his former in. dictment and conviction, which were read to him in English, he said he was not the Charles Ratcliffe therein named, but that he was the earl of Derwentwater; and his counsel informed the Court, that this was the plea he relied on; to which the Attorney General replied, with an averment of his being the same Charles Ratcliffe; and thereupon issue was joined. Then the counsel for the prisoner moved to put off his trial, upon his own affidavit (to which he had subscribed himself the count de Derwentwater) that two of his material witnesses were abroad. To which affidavit the counsel for the crown objected, as not being entitled in the cause before the Court, nor the two witnesses sworn to he material, in the issue then joined between the king and the prisoner; and also, because the prisoner had not. so much as undertaken to swear for himself that he was not the person; which, as it was a fact entirely in his own knowledge, ought to be required of him, if he would entitle himself to this favour from the Court; this being a proceeding very different from the trial upon a Not Guilty, in an original prosecution on a charge of high-treason or other crime, the identity of the person being the single fact to be enquired of, and a case in which the crown had a right by law to proceed in instanter. Upon this, the prisoner amended his affidavit as to the witnesses, but refused to supply it so far as to swear he was not the same person. And the Court said this was a new precedent, there being no instance of any application to put off the trial of a question of this sort before; and that this was like an inquest of office, in order to inform the conscience of the Court, and what the public had a right to proceed in instanter: and therefore that the prisoner ought to give all reasonable satisfaction to induce them to grant such a favour as he desired, for that they could not in conscience and justice to the public, indulge him, without a reasonable sattsfaction, that his plea was true. But the prisoner still refusing to swear to the truth of his plea, the jury were called, and after two or three of the pannel were sworn, Mr. Ratcliffe challenged the next that was called, as of right, without assigning any reason; but upon debate of the question, How far he had right to challenge? the Court said it had been determined before in all the later cases, and particularly in the case of one Jordan, that the prisoner in such a case as this had no peremptory challenge: upon which the rest of the jury were sworn, and after a clear evidence of the identity of the person on the part of the crown, the prisoner producing none on his part, the jury withdrew about ten minutes, and then found their verdict, of the mourning-coach, he asked the officers who stood to wait, whether he was to go in there? And being answered that he was, he only said, It is well, and stepped in directly. Being

tleman, covered with black velvet, and having eight handles, but no plate upon it, was placed on the scaffold,

In the mean time, Mr. Alderman Winterbottom and Mr. Alderman Alsop, the two sheriffs, with their under sheriffs, met at the Mitre Tavern in Fenchurch-street, and from thence proceeded, the under-sheriffs in a mourning-coach, and the sheriffs in their chariots, to the lower end of the Minories, where they were met by their officers, who marched before them till they came overagainst the Victualling-office, where they stopt, and then the under-sheriffs went down to the East Gate of the Tower, which is next to IronGate, when getting out of the coach, they went up to the gate, and seeing the warders through the gate, they demanded admittance to the lieut. governor of the Tower; upon which the gate was opened, and they went in, and in about ten minutes returned, and went into the mourning-coach again, which waited for them; and in a short time after, the prisoner was brought in a landau, out at the East-Gate, and then the procession began as follows: First, the sheriffs officers, then the mourning-coach in which were the two undersheriff's with their wands; then the landau with the prisoner, and the officers of the Tower who had him in custody; the landau was guarded by a party of foot-guards with their bayonets fixed. Thus they proceeded up Little Tower-hill, till they came over-against the Victualling office, where the sheriffs waited to receive him; and where the prisoner got out of the landau, and was put into the mourning-coach, which carried him about 100 yards further, to a booth built on purpose to repose himself in, and hung with black, at the foot of the stairs of the scaffold. When he got out of the landau, seeing some gentlemen he knew, he paid his compliments in a very genteel

that he was the same Charles Ratcliffe that was convicted of treason in 1716. Then the attorney general moved to have execution awarded against the prisoner on his former judgment; to which the prisoner's counsel objected, tendering a plea of pardon by act of parliament, in bar of execution. But the Court said, as he had already pleaded such a plea as he chose to rely on and stand by, and as that was found against him, nothing more remained for them to do at present, but to award execution; and if his counsel had any thing to offer on his behalf, they would have time to do it before the day of execution: then they ordered a rule to be made for the proper writs for his execution on Dec. 8, and remanded the prisoner to the Tower. From his Case, printed at that time.-Former Edition.

he staid there about ten minutes, which he spent chiefly in his devotions, speaking but very little to any body. He then walked up upon the scaffold with great calmness, being dressed in a scarlet coat, with gold buttons, the sleeves faced with black velvet, scarlet waistcoat trimmed with gold lace, a scarlet pair of breeches, and white silk stockings, and his hat with a white feather round it. He soon asked for the executioner, who coming to him, he took a parcel of gold out of his pocket, and gave it him, saying, I am but a poor man, there's ten guineas for you; if I had more I would give it you; and I desire you to do your execution so as to put me to the least misery you can. He then kneeled down before the block, and putting his hands together, made a short prayer, when two of the warders of the Tower came to him, one of each side of him; one of them took off his wig, and the other put a white cap upon his head; and then the unhappy criminal rose upon his legs, and with their assistance pulled off his coat and waistcoat. He then turned about and took his leave, in a respectful manner, of the sheriffs, and then untied the collar of his shirt, which was fastened with a black ribbon, and began to tuck the collar of his shirt down; but not being able to reach far enough behind, he desired the executioner to do it for him; which he did accordingly. Then, after saying a short prayer to himself, and crossing himself several times, he laid his head down upon the block; and desired the executioner to strike far enough, adding these his last words, When I spread my hands thus, do you take my head off. Which signal he gave in less than half a minute, when one stroke of the axe severed his head, except a bit of skin, which was cut asunder at two or three chops. The body then fell down upon the scaffold; and the executioner searching his pockets, found half a guinea, a silver crucifix, and his beads. Four undertaker's men stood ready with a piece of red bays to receive the head as it fell off, and the body and head were put into the coffin, and conveyed in a hearse, to the Nag's-head, in Gray's-InnLane, and soon after interred at St. Giles's in the Fields.

Thus fell this unhappy man, aged 53; 50 years within three days after his escape out of Newgate, part of which time he spent with the Pretender in Italy, but the greatest part in France, where he married the lady Newburgh, relict of Levingston, lord Newburgh, a Scots nobleman, by whom he had a son, who was some time prisoner with him in the Tower, and thought at first to be the Pretender's younger son. He was the youngest brother of James earl of Derwentwater, who was beheaded in 1716, they both being taken at

[442

Ratcliffe, by the lady Mary Tudor, natural daughter to K. Charles 2, by Mrs. Mary Davis.

demned for the rebellion in 1715, and made his escape out of Newgate: for there he behaved himself in an insolent manner, which did him no service: but at his execution he was calm and sedate, and suffered with much composure

June 24, 1746.

THE duke of Newcastle, by his majesty's command, acquainted the House, That bills of indictment of high-treason were yesterday found, by the grand jury of the county of Surrey, against William earl of Kilmarnock, George earl of Cromertie, and Arthur lord Balmerino.

Ordered, That the said indictments be removed before this House by Certiorari: And that a writ or writs of Certiorari be issued for that purpose.

Then a committee was appointed to inspect the Journals of this House upon former trials of peers in capital cases; and to consider of the proper methods of proceeding, in order to bring the lords above named to a speedy trial: And to report to the House, what they shall think proper thereupon.

Their lordships, or any five of them, to meet to-morrow, at the usual time and place; and to adjourn as they please.

Ordered, That the lord chief justice of the court of King's-bench, the lord chief justice of the court of Common Pleas, and the lord chief baron of the court of Exchequer, do attend the said committee.

June 26, 1746.

The House being informed, That the writ of Certiorari, issued for removing the indictments of high-treason, found by the grand jury of Surrey against William earl of Kilmarrock, George earl of Cromertie, and Arthur lord Balmerino, was brought into the House;

The said writ, return thereof, and indictments, were read.

The lord Monson acquainted the House, That the committee appointed to inspect their lordships' Journals upon former trials of peers

See Foster, 9.

in capital cases; and to consider of the proper methods of proceeding, in order to bring the lords above-mentioned to a speedy trial, had agreed upon a Report: which they had directed him to make to the House, when their lordships will please to receive the same.

Ordered, That the said Report be received to-morrow; and the Lords to be summoned. June 27, 1746.

The lord Monson (according to order) reported, from the lords committees appointed to inspect the Journals of this House upon former trials of peers in capital cases; and to consider of the proper methods of proceeding, in order to bring William earl of Kilmarnock, George earl of Cromertie, and Arthur lord Balmerino, lately indicted of high-treason, to a speedy trial; That the committee have met, and inspected the Journals of this House, in relation to the trials of peers in capital cases; and were attended by the lord chief justice of the Court of King's bench, the lord chief justice of the Court of Common Pleas, and the lord chief baron of the Court of Exchequer: And having heard the said judges upon the construction of the act of the seventh and eighth year of king William the third, intitled, An Act for regulating trials in cases of treason, and misprision of treason,* and con

* "The 10th and 11th sections," says sir M. Foster, "make provision for a more equal and indifferent trial of peers and peeresses in cases of treason and misprision. The mischief recited is, That in the trial of a peer or peeress the major vote is sufficient for condemnation or acquittal; whereas, saith the act, In the trial of a commoner a jury of twelve freeholders must all agree in their verdict. I doubt this was not the real mischief, because the remedy itself is open to the same. The major vote is still sufficient and must be so; and if the method of trial in the court of the lord high sidered the matter to them referred, have come to the following Resolution, viz.

1. That it is the opinion of this committee, That, by virtue of the said act, upon the trial of any peer or peeress in any of the cases of treason, or misprision of treason, within that act, all the peers, who have a right to sit and vote in parliament, ought to be summoned twenty days at least before every such trial, to appear at such trial.

steward was in contemplation, as I conceive it was, yet even there, though the major vote is sufficient, the majority must consist of twelve or more. (Kel. 56.)

"The real mischief, cautiously passed over, I take to have been, that in the trial of a peer in the court of the high steward the peerstriers were a select number returned at the nomination of the high steward, and the prisoner was in every case debarred the benefit of a challenge. (Moo. pl. 849. 1 Inst. 156, b.) This was the real mischief, and it was in many cases severely felt. Accordingly the act applieth the proper remedy; for it enacteth, That, upon the trial of any peer or peeress for treason or misprision, all the peers who have a right to sit and vote in parliament shall • be summoned twenty days before the trial to ' appear at such trial; and that every peer so ' summoned and appearing shall vote in the 'trial of such peer or peeress,' having first taken the oaths appointed by the act.*

"The next clause provideth, That neither this act nor any thing therein contained shall 'any way extend or be construed to extend ' to any impeachment or other proceedings ' in parliament in any kind whatsoever.' (Sect. 12.)

"The words of the last clause are very general, and seem to exclude every proceeding in full parliament for the trial of a peer in the ordinary course of justice. But that construction was rejected in the cases of the earls of Kilmarnock and Cromartie and of the lord Balmerino; and accordingly all the peers and lords spiritual were summoned; and those lords who appeared having taken the oaths appointed by the act, the bishops upon the day the trial came on, after making the usual protestation, withdrew; and the prisoners, before their arraignment, were informed by the high steward, that they were intitled to the benefit of this act in its full extent.

"The summoning the lords spiritual to the trial of those lords was, I apprehend, a prudent eaution, in order to obviate a doubt, that might otherwise, at that critical time, have arisen from the words of the statute, which, as

• "See the conference between the Lords and Commons upon this clause in Kennett, vol. 3, p. 625. Both Houses plainly understood the clause to refer to the trial of a peer in the court of the lord high steward." Foster. See also New Parl. Hist. vol. 5, pp. 679,

2. That it is the opinion of this committee, That such summons ought to be by order of this House, requiring, That every peer, who hath a right to sit and vote in parliament, do appear at, and attend such trial; and by letters, 10 be wrote by the lord chancellor, or speaker of the House for the time being, to each particular peer: And that such order of the House be fixed upon the doors of this House, and of Westminster-Hall; and also be published in

I before observed, are very general. But, general as they are, I do not conceive, that they made that measure, thong extremely prudent, absolutely and indispensibly necessary; for general words in a statute must be controuled by the apparent intent of the legislature; they must in construction be adapted to cases then in contemplation, and to every other provision in the statute, so as to render the whole one uniform consistent rule.

" I will now in a few words apply this observation to the present case.

"The act provideth, that every peer so summoned and appearing shall vote in the trial. By voting in the trial must, as I apprehend, be meant voting throughout the trial, voting as a competent judge in every question that shall arise during the trial; and, above all, in the grand question for condemnation or acquittal. Now upon this last question the bishops cannot vote; though it hath been resolved, and practice hath established the rule, that in a proceeding in full parliament in a case of blood, they may, if they choose it, vote upon all previous questions. But in a proceeding in the court of the high steward, which, I conceive, this clause of the statute had principally in contemplation, and to which no mere spiritual lord was ever summoned or could be, no question but for acquittal or condemnation is the subject of any vote; for in all points of law or practice the high steward giveth the rule as sole judge in the court.

"To conclude this head, the act may, with propriety enough, be said to regulate the proceeding in both courts, that of the high steward and that in full parliament; but it doth not alter the nature and constitution of either. Consequently, it doth not give to the lords spiritual any right in cases of blood, which they had not before; what conclusions soever men of interloping busy talents may hereafter be tempted to draw from it, or from this precedent; which, as I said before, is founded in great wisdom for obviating doubts, which might have arisen, and proceeded from the same prudential motives from which the acts I have already cited for saving the rights of the peerage did. The measure in both cases was extremely right, but not of absolute indispen. sible necessity."

Foster's Crown Law, p. 246.

+ "See the Lords' Journal 13th and 14th May 1679, in the case of lord Danby and the popish lords." Foster.