all the special matter shall come in by the certificate: and although the justices of gaol-delivery, or other justices, before whom the conviction or attainder is, do not certify the original, it is not material, so that they certify the body of the record of the attainder or conviction." These are the words of that book: and, my lord, it must be on the same reason, that where a man pleads a conviction of recusancy, he must shew before whom it was, Noy, 89. 97. And so are the precedents in Winche's Entries, 522, 523, 524. 2 Brownl. 15. Hern. 503. So in an action for maliciously indicting a man for treason, it is not sufficient to say he did indict the plaintiff; nay, if he adds coram such persons, justices of the peace, and omite

357. 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

committed is fully taken notice of, as I have seen a precedent, Mich. 4 & 5 El, Rot. 7. In the case of Mr. Braddon and Mr. Speake, the indictment* doth not only say that my lord Essex did murder himself at such a time and place, but adds further, as by inquisition taken at the Tower of London aforesaid, upon view of the body of the said Arthur eari of Essex, and now in this court remaining of record, does more plainly appear.' So the indictment against Tasborough and Price,† for suborning Dugdale to retract his evidence that he had given against the Popish Recusants, &c. sets forth the record, where and before whom such convictions were. So in the case of Thompson, Pain and Farewel, for printing and publishing 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 indict-placito coram Domino Rege pendente,' not ment vicious. It is in Keilway, 193. An inquisition that finds the attainder of one Bays: the record is large, and therefore I shall not An indictment for a second offence, where recite it, nor make any other observations on it the punishment is greater than for the first, than what are in the very report, which are in onght to recite the former conviction, 1 Lenthese words: "Memorandum. This Inquisi- nard, 295. So it was done in Roger Booth's tion was drawn by good advice, that is to say, Case, Mo. 666, pl. 913. In 3 Keble, 737, an by the council of king Henry the 7th; yet the indictment for a second offence of printing did inquisition which entitled the king to the land, set forth the first, but did not say where it was; by reason of the attainder of the said Bays, therefore Twisden held the indictment naught. doth not make any mention of the indicters, And if there be a necessity of setting forth so nor of the names of the justices of peace who precisely the first conviction to make the setook the indictment, but only the day of the cond offence the greater, methinks, in reason, the indictment taken, and the day of his at- it must as certainly be set forth, where it gives tainder, without expressly mentioning what the very esse to the offence. And if such a gekind of felony, but pro quadam felonia,' and neral way of referring to records should be althe names of the justices before whom he was lowed in indictments, it would not only overattainted." These are the words of the re- throw all the precedents and other authorities porter: and, my lord, that this case is of ge- I have cited, but the defendants must needs lie neral concern, appears by the next case in that under several inconveniences. They would then book, Keilway, 194. An indictment was found be cut off from the privilege of pleading 'Nul on the escape of certain persons convict, with-tiel Record,' or traversing it, as was done in out 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.

|

mentioning where the King's-Bench sat, was held fatal in arrest of judgment, 1 Ventr. 302.

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 indictment 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. 316), 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 rever- the 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 be 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: yet 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 reby 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 verdiet for the plaintiff, ou 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 indenture,' and upon nonpayment he re-entered, and made the lease to the plaintiff: and upon demurrer it was reBolved, 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.

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 prenitentia 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 I shall trouble your lordship but with one case of Tindall and Cobbs, 8 Lennard, fol. 9, 10. case more to this point; it is in 3 Lennard 72. In an action of waste, the declaration shews A Quo Warranto was brought by the queen the demise of the manor of Wolverton and other against sir John Constable, who claimed cerlands, and assigns the waste in quodam bosco 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.

'vocat' Wolverton Wood, parcel præmissor' ; and it was held insufficient, for that it could not be parcel of the mauor and other lands

also.

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.*

And the end was suitable to their begin- Cl. of Ar. Cryer, make proclamation. ning; they first practised these crimes upon Cryer. O yes, O yes, O yes. All manner of their own countrymen, the English, and then persons that have any thing more to do at this continued them on to strangers and foreigners: sessions, draw near and give your attendance: For the ship in which this piracy was com- and you sheriffs of the city of London, return mitted, was an English vessel, called the the several precepts directed to you, and Charles the Second, belonging to several mer-returnable here this day, upon pain and peril chants of this city, designed for other ends, and that shall follow thereon. a far different voyage, which by these crimiuals, with the assistance of one Every, their captain in all those villainies, was seized near the Groyne in Spain, in May 1694, from which place, having first, by force, set captain Gibson the commander on shore, they carried off the ship, and with it committed many and great piracies for several years (as will appear in the course of the evidence) in most of the parts of the known world, without distinction, upon all nations, and persons of all religions.

Their last piracy was this in the Indies, the greatest in itself, and like to be the most pernicious in its consequences, especially as to trade, considering the power of the Great Mogul, and the natural inclination of the Indians to revenge: But they are now brought hither ou their trial, and, if the matters they are charged with shall be proved, to receive that judgment from you their crime deserves; and that is piracy, which by so much exceeds theft or robbery at land, as the interest and concerns of kingdoms and nations are above those of private families, or particular persons: For suffer pirates, and the commerce of the world must cease, which this nation has deservedly so great a share in, and reaps such mighty advantage by: And if they shall go away unpunished, when it is known whose subjects they are, the consequence may be, to involve the nations concerned in war and blood, to the destruction of the innocent English in those countries, the total loss of the Indian trade, and thereby the impoverishment of this kingdom.

The Witnesses for the king, viz. John Dan and Philip Middleton, were then called and sworn, and in the opinion of the court gave a full evidence against the prisoners, which was very clearly summed up by the lord chief justice Holt; the tenour whereof is particularly set forth in the following Trials; but the jury, contrary to the expectation of the court, brought in all the prisoners Not Guilty; whereupon the sessions was adjourned to Saturday the 31st of October following, and the prisoners were com. mitted upon a new warrant for several other piracies.

October 31, 1696.

the

Then the grand Jury were called over, and appearances marked.

Cl. of Ar. Make proclamation.

Cryer. O Yes, &c. The lords the king's justices charge and command all persons to keep silence while the charge is giving.

Sir Charles Hedges, the Judge of the Admiralty, said to the Grand Jury upon this

occasion:

Gentlemen of the Grand Jury;

good intentions, abilities, and integrity of the The opinion which this court had of the last Grand Jury was so fully answered at our late meeting in this place, that I am confident all good Englishmen, who were witnesses of public thanks for the good services which they their proceedings, will concur in giving them then performed: I wish that all others, who business, had the like pretence to have the were concerned in the dispatch of that day's not then have lain under any manner of same; the public justice of the nation would reproach, neither would you have had this farther trouble. But seeing that it hath so happened, it is become absolutely necessary that a farther and a strict enquiry should be made after those crimes which threaten, and tend to the destruction of our navigation and trade; and therefore I am assured of your patience, whilst I shew you briefly:

1. What the crimes are, which you are to enquire after.

2. How far the jurisdiction and your power in making these enquiries doth extend. 3. What is the duty incumbent on you in this behalf.

1. As to the crimes, I shall not repeat what was mentioned touching all the particulars thereof, at the opening of this sessions; but confine my discourse to those, which I find by the calendar will, at this time, necessarily fall under your examination; and those are piracies.

Now piracy is only a sea-term for robbery, piracy being a robbery committed within the jurisdiction of the Admiralty. If any man be assaulted within that jurisdiction, and his ship or goods violently taken away without legal authority, this is robbery and piracy. If the mariners of any ship shall violently dispossess the master, and afterwards carry away the

The Court being sat (at which were present sir Charles Hedges, judge of the high court of Admiralty, the lord chief justice Holt, the lordship itself, or any of the goods, or tackle, chief justice, Treby, the lord chief baron Ward, Mr. Justice Rokeby, Mr. justice Turton, Mr. justice Eyre, Mr. baron Powis, Dr. Lane, Dr. King, and Dr, Cook), the court proceeded in this manner.

apparel or furniture, with a felonious intention, in any place where the lord Admiral hath, or pretends to have jurisdiction, this is also robbery and piracy. The intention will, in these cases, appear by considering the end for which the