441] Proceedings against the Earl of Kilmarnock, &c. A. D. 1746. Preston. They were the sons of sir Francis Mr. Ratcliffe behaved with much more decency at his execution, than at the bar of the King's-bench, when the only trial was, whe [442 |ther he was the same person who was condemned 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: bút at his execution he was calm and sedate, and suffered with much composure and resignation. 518. The whole Proceedings in the House of Peers, upon the Indictments against WILLIAM Earl of KILMARNOCK, George Earl of CROMERTIE, and ARTHUR Lord BALMERINO, for High 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 Kilmarnock, 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 Monsou (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.) 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, to 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, though extremely prudent, absolutely and indispensibly necessary; for general words in a statute must be controuled by the apparent intent of the legis "I will now in a few words apply this observation to the present case. "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 peers-lature; they must in construction be adapted triers were a select number returned at the to cases then in contemplation, and to every nomination of the high steward, and the pri- other provision in the statute, so as to render soner was in every case debarred the benefit of the whole one uniform consistent rule. a challenge. (Moo. pl. 849. 1 Inst. 156, b.) This was the real mischief, and it was in many eases 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 gene. ral, 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 caution, 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, 682. "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 prac tice hath established the rule, that in a pro-" cecding 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. ས "To conclude this head, the act may, with propriety enough, be said to regulate the pro ceeding 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. the London Gazette, at least twenty days before such trial; and that such letters be sent at least twenty days before such trial. 3. That it appearing to this committee, That the antient and usual method of summoning the lords to attend upon trials of peers in capital cases, in parliament, has been, by sending the letters of summons, to such lords as are not in town, by the post; it is the opinion of this committee, That the letters, to such lords as are not in town, be sent by the post, according to the antient usage. 4. That it is the opinion of this committee, That the House be moved to resolve and declare, That such order, so fixed up and published as abovementioned, and such letters, so sent as abovementioned, are a due summons of the peers in cases of trials during the sitting of parliament, within the true intent and meaning of the said act of the seventh and eighth of king William the third. 5. That it is the opinion of this committee, That every ford, before he shall sit or vote upon such trial, ought to take the oaths, and make and subscribe the declaration required by law to be, taken and subscribed by lords, in order to their sitting and voting in parliament. tie be tried on the same day, at ten of the clock in the forenoon, upon the bill of indictment for high-treason found against him and that Arthur lord Balmerino be tried on the same day, at eleven of the clock in the forenoon, upon the bill of indictment for high-treason found against him. Ordered, That the Trials of the said peers be had in Westminster-hall. Ordered, That an humble Address be presented to his majesty, to acquaint his majesty, That this House hath appointed the Trials of William earl of Kilmarnock, George earl of Cromertie, and Arthur lord Balmerino, to begin, in Westminster-hall, on Monday the 28th day of July next; and humbly to desire, that his majesty will be graciously pleased to give orders, That a place be prepared in the said hall for the said Trials; and also to appoint a lord high-steward, to continue during the said Trials. Ordered, That the said Address be presented to his majesty by the lords with white staves. Ordered, That every peer, who hath a right to sit and vote in parliament, do appear at, and attend, the said Trials: and that this order be affixed on the doors of this House, and of Westminster-hall; and also be printed and published in the London Gazette, at least twenty days before the said Trials. 6. That it is the opinion of this committee, That, in the letters to be wrote, pursuant to the resolutions above-mentioned, notice be taken, that the lords are summoned, pursuant Ordered, That the lord chancellor do write to the said act of the seventh and eighth year letters to all the peers, requiring their apof king William the third; and that their at-pearance and attendance at the said Trials, purtendance is required at such trial, upon pain of suant to the directious contained in the foreincurring the utmost displeasure of the House; going Report. and that, in case the lord, to whom any such letter is directed, shall be incapable of attending, by reason of sickness, or other disability, he do send two witnesses to attest the same upon oath. Then the said Report was read by the clerk. And the three first Resolutions, being read a second time, were severally agreed to by the House; and ordered accordingly. And the fourth Resolution being read, the House was moved pursuant to the direction of the committee. And thereupon, Resolved and declared, That the order for the attendance of the peers, who have a right to sit and vote in parliament, fixed up and published as above-mentioned, and such letters wrote by the lord chancellor, or speaker of this House, and sent as aforesaid, are a due summons of the peers in cases of trials during the sitting of parliament, within the true intent and meaning of the said act of the seventh and eighth year of king William the third. Then the two last Resolutions being read a second time, were severally agreed to by the House; and ordered accordingly. Ordered, That William earl of Kilmarnock be tried on Monday the 28th of July next, at nine of the clock in the morning, upon the bill of indictment for high-treason found against him and that George earl of Cromer : Die Lunæ, 30 Junii, 1746. The lord chamberlain reported, That the lords with white staves had, according to order, presented to his majesty the Address of this House yesterday, for a place to be prepared in Westminster-hall, for the Trials of the peers indicted of high-treason, and for the aphis majesty was pleased to say, he would give pointment of a lord high steward: and that orders accordingly. Die Lunæ, 7 Julii, 1746. Upon reading the Petition of William earl of Kilmarnock, now a prisoner in the Tower of London, praying in regard he has notice given him, that his Trial is appointed upon the 28th day of this present July, That their lordships will please to appoint Mr. George Ross to be his solicitor; It is ordered, That the said George Ross be assigned solicitor for the petitioner, as desired; and that he may have access to him at all seasonable times. Upon reading the Petition of George earl of Cromertie, now a prisoner in the Tower of London, praying, That this House will be pleased to appoint Mr. Adam Gordon, attorney at law, to be his solicitor ; It is ordered, That the said Adam Gordon be assigned solicitor for the petitioner, as desired; and that he may have access to him at all seasonable times, Die Martis, 8 Julii, 1746. House in Westminster-hall, on Monday next, at nine of the clock in the morning, the bodies of William earl of Kilmarnock, George earl of Cromertie, and Arthur lord Balmerino, now in his custody; together with copies of their respective commitments, signed by the said constable or lieutenant. The lord Monson 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 they had again met, and taken into further consideration the matter to them referred; and were come to the following Resolutions; viz. Die Jovis, 24 Julii, 1746. The lord Monson 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 the Trials of William earl of Kilmarnock, George earl of Cromertie, and Arthur lord Balmerino, lately indicted of high treason; That the committee That it is the opinion of the Committee, That all the lords, who shall attend the said Trials, do attend the House, to take the oaths, in order to their sitting and voting upon such Trials, on the Thursday and Friday next pre-have taken into further consideration the matceding the day appointed for the said Trials. That it is the opinion of the committee, That the said Resolution be printed and published in the London Gazette. Which, being read twice by the clerk, were agreed to by the House; and ordered accordingly. Die Mercurii, 9 Julii, 1746. Upon reading the Petition of Arthur lord Balmerino, now a prisoner in the Tower of London, praying, That this House will appoint Mr. George Ross to be his solicitor; It is ordered, That the said George Ross be assigned solicitor for the petitioner, as desired; and that he may have access to him at all seasonable times. Die Veneris, 11 Julii, 1746. On a report made by the lord Monson, from the committee before-mentioned: Ordered, That the lord high steward he directed to acquaint the lords to be tried, and all other persons who may have occasion to speak to the Court, that they address themselves to the lords in general, and not to the lord high steward. Die Martis, 15 Julii, 1746. Upon reading the Petition of George earl of Cromertie, now a prisoner in the Tower, praying, in regard he is informed, several resolutions have been agreed to by this House, in order to the speedy Trials of the petitioner and others, that he may have copies thereof, the indictment found against him, the Certiorari for removing the same, and the return thereof, or any other proceedings that shall be agreed upon in relation to his Trial : Ordered, That the petitioner may have copies of such proceedings as have been had in this House concerning him; together with a copy of the said indictment, Certiorari, and return, as desired. Die Mercurii, 23 Julii, 1746. Ordered, That the constable of his majes ty's Tower of London, or the lieutenant of the same, or his deputy, do bring to the bar of this ter to them referred; and have come to the following Resolutions (amongst others); viz. That it is the opinion of the committee, That all proclamations to be made in the Court in Westminster-hall, during the said Trials, be made in the king's name. That it is the opinion of the committee, That the three lords, indicted of high treason, be brought to the bar of the Court in Westminster-hall, at the same time in order to be arraigned. That it is the opinion of the committee, That in case the three lords, indicted of high trea son, should plead Guilty to their indictments,the House be immediately adjourned to the chamber of parliament; but if one or more of the said lords should plead Guilty, and the other Not Guilty, in that case, the lord or lords so pleading Guilty be forthwith remanded, in custody of the chief governor of the Tower of London, to the said Tower; and that the Trial of the other lord or lords pleading Not Guilty do proceed. Which Report being read twice by the clerk, was agreed to by the House; and ordered accordingly. Die Lunte, 28 Julii, 1746. The Lords met in the House of Lords in their robes; and, after prayers, adjourned into Westminster-hall. THE FIRST DAY. About 11 o'clock, the Lords came from their own House into the Court erected in Westminster-hall, in the manner following: The lord high steward's gentlemen attendants, two and two. The clerks assistant to the House of Lords; and the clerk of the parliament. Clerk of the crown in Chancery, bearing the king's commission to the lord high steward; and the clerk of the crown in the King's-bench, The masters in chancery, two and two. The judges, two and two. The peers eldest sons, two and two. Peers minors, two and two. York and Windsor heralds, Four serjeants at arms with their maces, two and two. The yeoman usher of the House. Then the Peers, two and two, beginning with the youngest baron. Then four serjeants at arms with their maces, two and two. The serjeant at arms attending the great seal, and purse bearer. Then Garter king at arms, and the gentleman usher of the black-rod, carrying the white staff before the lord high steward. Philip lord Hardwicke, lord high chancellor of Great Britain, Lord High Steward, alone; his train borne. When the Lords were placed in their proper seats, and the Lord High Steward upon the wool-pack; merino, late of the said city of Carlisle, in our said county of Cumberland; stand severally indicted before our justices and commissioners, assigned and constituted by our letters patent under our great seal of Great Britain, bearing date the 5th day of June, in the 19th year of our reign, by virtue and according to the form of the statute made in this our present parliament, intituled, An Act for the more easy and speedy trial of such persons as have levied, or shall levy, war against his majesty; and for the better ascertaining the qualifications of jurors in trials for high treason, or misprision of treason, in that part of Great Britain called Scotland; made to them, and to any three or more of them; to deliver our gaol of our county of Surry of the prisoners therein being, or such as shall or may be detained in the same, on or before the 1st day of January, in the year of our Lord 1746, for or on account of the high treason mentioned in the said act, The clerk of the crown in Chancery having his majesty's Commission to the Lord High Steward in his hand, and the clerk of the crown in the King's-bench standing be-in levying war against us within this realm; fore the clerk's table with their faces towards the state, made three reverences; the first at the table, the second in the midway, and the third near the wool-pack; then kneeled down; and the clerk of the crown in Chancery, on his knee, presented the Commission to the lord high steward, who delivered the same to the clerk of the crown in the King's-bench to read: Then rising, they made three reverences and returned to the table. And then proclamation was made for silence; in this manner: Serjeant at Arms. Oyes, Oyes, Oyes! Our Sovereign lord the king strictly charges and commands all manner of person to keep si-tute, by the oath of twelve jurors, good and sence, upon pain of imprisonment. Then the lord high steward stood up, and spoke to the peers. and to inquire, by the oath of good and lawful men of the same county, of all such high treasons, in levying war against us within this realm by the said prisoners, or any of them, or by any other person or persons who are now in actual custody for or on account of the same, or who are or shall be guilty of high treason, in levying war against us within this realm, and shall be apprehended and imprisoned for the same, on or before the said 1st day of January, in the said year of our Lord 1746; and the same treasons to hear and determine, according to the form of the said sta lawful men of the said county of Surry, of high treason, by them the said William earl of Kilmarnock, George earl of Cromertie, and Lord High Steward. His majesty's Commis- Arthur lord Balmerino, committed and perpesion is about to be read:* Your lordships are de-trated in levying war against us within this sired to attend to it in the usual manner; and all others are likewise to stand up, uncovered, while the Commission is reading. All the peers uncovered themselves; and they, and all others, stood up uncovered, while the Commission was read. GEORGE R. realm; and considering, that justice is an excellent virtue, and pleasing to the Most High; and being willing that the said William earl of Kilmarnock, George earl of Cromertie, and Arthur lord Balmerino, should be heard, examined, sentenced and adjudged before us, in this our present parliament, touching and concerning the said high treason whereof they George the second, by the grace of God, of stand severally indicted as aforesaid; and that Great Britain, France and Ireland, king, de- all other things which are necessary in this be fender of the faith, and so forth. To our right half should be in due manner done and executtrusty and well beloved counsellor Philip lord ed; and for that the office of steward of Great Hardwicke, baron of Hardwicke, in our county Britain (whose presence is required upon this of Gloucester, our chancellor of Great Britain, occasion) is now vacant (as we are informed); greeting. Know ye, That whereas William we, very much confiding in your fidelity, pruearl of Kilmarnock, late of the city of Car-dence, provident circumspection, and industry, lisle, in our county of Cumberland; George earl of Cromertie, late of the town of Perth, in the shire of Perth; and Arthur lord Bal * As to this see Foster's Crown Law, pp. 141, et seq. and in this Collection the Cases of lord Morley, lord Pembroke, lord Danby, lord Stafford, lord Oxford, lord Derwentwater and others, lord Salisbury, lord Wintoun, lord Lovat, and lord Ferrers noticed by Foster. VOL. XVIII. have for this cause ordained and constituted you steward of Great Britain, to bear, execute and exercise (for this time) the said office, with all things due and belonging to the same office in this behalf: And therefore we command you, that you diligently set about the premisses, and (for this time) do exercise, and execute with effect, all those things which belong to the office of steward of Great Britain, and which are required in this behalf. In wit 2 G |