to speak to; the Lords are ready to hear: Have you any thing else to propose? L. Wintoun. If you will allow my counsel to answer, he will answer. L. H. Steward. My lords! Is it your lordships' pleasure to adjourn to the Chamber of Parliament?-Lords. Ay, ay. Then the House was adjourned about three of the clock, and about five returned again, and proclamation was made for silence as usual. L. H. Steward. 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. 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 go. vernment, as slain in lawful war'; even judg ing 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 After your lordship has moved in arrest of judgment, and the Lords have disallowed that motion; their next step is to proceed to judg-laws; for sure but little blood can be better ment.. The melancholy part I am to bear in pronouncing that judgment upon you, since it is his majesty's pleasure to appoint me to that office, I dutifully submit to it; far, very far, from taking any satisfaction in it. Until 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. 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 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.) 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 black-lordship, that est 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 infallibly have established Popery; and that never fails to bring with it a civil, as Avell as ecclesiastical tyranny; which is quite another sort of constitution than that of this kingdom, and cannot take place till the present is annibilated. This your crime (so I must now call it) is the more aggravated, in that when it proeeeds so far, as to take arms openly, and to make an offensive war against lawful authority, it is generally (as in your case) complicated with the horrid and crying sin of murdering many, who are not only innocent but merito rious. And if pity be due (as I admit it is, in some degree) to such as suffer for their own crimes; 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 inju dicious 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 sound discretion directs, having always a care of the public safety above all things) is this; That such like seeds or unreasonable disa contents 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 sullied by the tongues of rebels and their accomplices, when their arins 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, bave 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 lord. ship 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: viz. 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 your bowels must be taken out, and burnt be'dead; for you must be cut down alive, then "fore your face; then your head must be seinto four quarters; and these must be at the 'vered from your body, and your body divided king's disposal.' And God Almighty be merful to your soul! Serjeant at Arms. O Yes! Our sovereign lord the king strictly charges and commands all manner of persons to keep silence, upon pain of imprisonment. covered, and declaring there was nothing more to Then the Lord High Steward stood up unbe done by virtue of the present commission, broke the staff, and pronounced it dissolved ; And then leaving the chair, came down to the woolpack, and said, Is it your lordships' pleasure to adjourn to the House of Lords?" Lords. Ay, ay. And then the House adjourned to the chamber turned in the same order they came down. of parliament, and the Lords and others re The earl of Wintoun was carried back to the Tower, from whence he afterwards made his escape. Soon after the termination of this trial, Curll and others were attached in consequence of a complaint which had been made (Ap. 18th, 1716) to the House of Lords, of a printed paper intituled, An Account of the Trial of the earl of Wintoun, which began on the 15th, and ended the 19th of March, 1716, mentioned to be printed for S. Popping, at the Black Raven, in Paternoster-row, 1716, price two-pence.' It appears that Curll suffered more than the others. On the 17th of April the House was informed that he was in custody. It was not until May 8th, that he presented a petition to the House, expressing his ignorance of their standing order, and his hearty sorrow for his offence, and praying, "in regard he had a family, which must inevitably be ruined unless the House have compassion on him, that he may be discharged from his confinement." On the 11th he was brought to the bar, where having on his knees received a reprimand from the Lord Chancellor for his offence, he was discharged out of custody, paying his fees. While Corll was in custody, the House caused to appear before them (May 2nd), on account of the publication in a newspaper of "An Abstract of the Protest against the Bill for repealing the Triennial Act," the two printers and publishers of the newspaper, and the person who furnished the copy of the article in question. The House did not treat them with much severity. One of the publishers said, "that though his name was put to the said paper, yet he was out of town and never saw the same, till it was printed;" and withdrew: and thereupon he was discharged from any farther attendance. The other two persons pleaded ignorance of the order of the House, begged forgiveness, and promised never to offend again. They on their knees were at the bar reprimanded by the Lord Chancellor, and discharged. 451. The Trial of FRANCIS FRANCIA, a Jew, at the Old-Bailey, for High-Treason: 3 GEORGE I.* A. D. 1717. FRANCIS FRANCIA having been formerly arraigned upon the Indictment found against him for high-treason, and having pleaded Not Guilty, was on Tuesday the 22d of January brought to the bar to receive his trial. Clerk of Arraignments. You the prisoner at the bar, these men that you shall hear called, and personally appear, are to pass between our sovereign lord the king and you, upon trial of your life and death. If therefore you will challenge them, or any of them, your time is to challenge them as they come to the book to be sworn, and before they be sworn. Cl. of Arr. Sir Dennis Dutry, bart. Prisoner. Are you a freeholder in this city? Sir Dennis Dutry. Yes. Sir J. Jekyll. My lord, we that are counsel for the king, desire, that those who are called may be asked that question; whether they have freehold (or copyhold) of ten pounds per ann. or not; before they are sworn in chief? Att. Gen. (Sir Edward Northey.) We suppose the prisoner will ask that question; and therefore we desire that it may be asked of every one as they come to the book. +"If the cause of challenge touch the dishonour or discredit of the juror he shall not be examined upon his oath," [See Peter Cook's case, vol. 13, p. 334,]" but in other cases he shall be examined upon his oath to inform the triors." Co. Lit. 158, b. Upon which passage lord Coke's learned commentator Mr. Hargrave, observes, "This is one instance of the examination called a voir dire ; for as a witness is on a voir dire to try an ob Mr. Ward. It is a challenge on both sides. L. C. Baron. (Sir Thomas Bury.) They onght to be sworn whether they have a free-jection to his competency to give evidence, so hold or not, if they would excuse themselves. Mr. Hungerford. I have nothing to offer against it. In case the king's counsel think fit to proceed in that method, we concur in it. I should have moved it myself, if they had not. Att. Gen. It was in the trial of the rebels. Prisoner. He has had a quarrel with me; and there was a suit depending between us about seven years ago and I challenge him for cause. Att. Gen. He may challenge him peremptorily, if he will. But if he challenges him for cause he must prove it. Prisoner. Sir Dennis will not deny it. L. C. Baron. If you challenge him, you must prove your challenge. Do you challenge him for cause, or peremptorily? Prisoner. For cause. * See East's Pleas of the Crown, chap. 2, . 66, and the MSS. there cited. Leach's Hawk. Pl. Cr. book 2, chap. 25, s. 140. Foster 11, 241. VOL. XV. a juror may be sworn in like manner to try the cause of challenge to him. It is thought fit to take notice of this; because in some of our books, the voir dire is described, as if confined to the challenge of a witness, and only used to distinguish such a partial swearing of a witness from swearing of him in chief." Mr. Hargrave also notices that in this case, and that of Mr. Townley (in this Collection 20 Geo. 2,) the challenges not being to the favour' were examined into by the court without triors. As to more concerning the voir dire, see Peake's Law of Evidence as referred to, vol. 13, p. 334, and lord Lovat's Case in this Collection (A.D. 1747) as cited by Mr. Peake. As to the distinction between petent' and 'credible' as applied to witnesses, see lord Mansfield's judgment in Windham v. Chetwynd, 1 Burrow; also Abrahams. Bunn, Burrow 2251; Bent v. Baker, 3 T. Rep. 27. com See Hawk, Pl. Cr. book 2, c. 43, su, 12, 24. 3 M have given me a pannel with barbarous Latin. In my copy of the pannel, he is returned by the name Dionysius; that is not the same name. Mr. Ward. The prisoner observes, that in the pannel he is returned by the name of Dionysius, when his name is Dennis. Sir J. Jekyll. He is to have a copy of the pannel; but it is not to be put into English for him. Mr. Ward. But we say, that is not Latin for Dennis. but Sir J. Jekyll. Sure no one will argue, that Dionysius is the proper Latin name for Dennis. L. C. Baron. You offer no cause of challenge. Prisoner. I hope I prove his name is returned in the pannel Dionysius. L. C. Baron. It is so; and that is Latin for Dennis.* Prisoner. No, it is not. Dennis is a saint in France, and Dionysius is a saint in Italy. They are two different names, and of different countries. L. C. Baron. Dionysius is Latin for Dennis. If they do not challenge him peremptorily, he must be sworn. Prisoner. I allege that we fell out about seven years ago: and that his name is not Dionysius, as it is wrote in the pannel. And in my former pannel he was put down Knight, and in this Baronet. L. C. Baron. These things are nothing, except the suit; and that you must prove. Mr. Hungerford. As to the distinction of the two saints, I do not meddle in it. But I suppose sir Dennis can tell whether he is a knight or a baronet. But as to the saints, whether the nominal ones abroad, or the pretended ones at home, I let them alone. Prisoner. You allowed this challenge the last time. Prisoner. I must do what you order; but 1 think it very hard. Then I challenge him, Cl. of Arr. Sir John Scott, knt. Prisoner. I challenge him. Cl. of Arr. Sir Daniel Wray, knt. Prisoner. I do not except against him. (Then he was sworn.) Cl. of Arr. Sir W. Chapman, kut. Prisoner. Were you upon the grand jury, that found the Indictment against me? Adams. No. Prisoner. I challenge him. Cl. of Arr. Joseph Chamberlain. (He was sworn.) Cl. of Arr. John Casebert. Prisoner. He was upon the grand jury that found the Bill against me; and I challenge him for that cause. Cl. of Arr. Robert Wood. Prisoner. He don't write his name as it is in the pannel. I could never find this gentleman out by all the enquiry I could make. L. C. Baron. What is the mistake? Prisoner. It is wrote in the pannel & conAtt. Gen. You challenged him peremp-sonant, and he spells his name with a w. And torily. it is in the pannel a single 7, and he writes it Mr. Ward. He was stiled knight in the last with a double II. pannel. L. C. Baron. That does not appear to us. You must either challenge him peremptorily, or he must be sworn. To this Latinity perhaps is applicable an observation which was made in the case of Layer, that it is more admissible in Westminster-hall than in Westminster school. The French, in their obstinate affectation of corrupting the orthography and pronunciation of all foreign names ancient and modern, I believe always pervert Avios and Dionysius into Denys; and thus an antagonist of Burnet, in an unlucky display of second hand learning, was misled into a reference to the authority of Denys of Halicarnasse. Query as to the propriety upon any occasion of applying to English names the properties of other languages from which they are supposed to be derived, or into which they are supposed to be translated. (Then Mr. Cailovell being asked, said he wrote his name with a consonant, as in the pannel; but with a double II.) L. C. Baron. That does not alter the pronunciation. It is the same name. Prisoner. I challenge him. Cl. of Arr. Thomas Davis. (He was sworn.) Cl. of Arr. John Dodson, esq. Cl. of Arr. John Davis. (He was sword.) Cl. of Arr. Joseph Emmes. (He was sworn.) Cl. of Arr. John Farr. (He was sworn.) Prisoner. I challenge him. Prisoner. I challenge him for cause. He is returned upon the pannel Greenway, and his name is Greenaway: that is a different name. Sir J. Jekyll. How are you usually called; (Then he was set aside.) Cl. of Arr. John Glasbrook. sworn.) Cl. of Arr. John Goodlad. (He was ner in Newgate, may be sent for; and may be L. C. Baron. What is he in Newgate for? L. C. Baron. Then he may be sent for. Which was done accordingly. Cl. of Arr. Francis Francia, hold up your hand. (Which he did.) Gentlemen, you that are sworn, look upon the prisoner, and hearken to his cause. "He stands indicted by the name of Francis Francia, of London, merchant: for that he being a subject of our most serene lord George, king of Great Britain, France and Ireland, defender of the fajth, &c. not having the fear of God in his heart, nor weighing the duty of his allegiance; but being moved and seduced by the instigation of the devil, as a false traitor against our said lord the king, his supreme, true, natural, lawful and undoubted lord; withdrawing that cordial love, and true and due obedience, fidelity and allegiance, which every subject of our said lord the king towards him ought to bear; and designing, and traitorously intending, the government of these kingdoms, under our said lord the king duly and happily established, to change and subvert; and our said lord the king from the title, honour, royal estate, empire and government of these kingdoms to depose; and our said lord the king to death and final destruction to bring; and the person in the life of king James the second, pretended to be prince of Wales, and after the death of the said late king pretending to be, and taking upon himself the stile and title of Cl. of Arr. William Kent. (He was sworn.) king of England, by the name of James the Cl. of Arr. Richard Levitt, esq. Sir J. Jekyll. 1 challenge him for the king. Cl. of Arr. Thomas Lingard. (He was sworn.) Cl. of Arr. Stephen Lee. (He was sworn.) Sir J. Jekyll. I challenge him for the king. third, to the crown, royal estate and dignity of king, and to the government of this kingdom to advance: the first day of September, in the second year of the reign of our said lord the king, and at several days and times as well before as after, falsely, maliciously, devilishly, and traitorously did compass, imagine and intend our said lord the king, now and then his supreme, true, natural, lawful and undoubted lord, from the title, honour, royal estate, empire and government of these kingdoms to depose, and to death and to final destruction to put and bring; and the said person, in the life of the said king James the second, pretended to be prince of Wales, and since the death of the said late king pretending to be, and taking upon himself the stile and title of king of England, by the name of James the third, to the crown, royal estate and dignity of king, and to the empire and government of this kingdom, to exalt. And that he the said Francia, to accomplish and bring about the said treason, and traitorous and devilish intention, did traitorously meet, propose, consult, conspire and agree with divers other traitors, to the jurors unknown, to raise insurrection, rebellion and war king, and in favour of the said person, in the within this kingdom, against our said lord the life of the said king James the second, pretended to be prince of Wales, and since the |