ill' reddi debuisset pro Dicto Domino Rege versus eundem Johannem; Ideo in eo manifeste est Errat': & hoc parat' est verificare; unde pet' Judicium, & quod Judic' ill' ob Error' prædict', & al' in Record' & Process' prædict' existen', revocetur, adnulletur, & penitus pro nullo habeatur, & quod dictus Dominus Rex ad omnia, quæ ipse occasione revocation' & adnullation' Judicii prædict' amisit, restituatur, &c.
Argument for King. No Warrant of Attorney filed by the Heir's Attorney below.—It was argued on Behalf of the King, that there was no Warrant of Attorney filed, and consequently the Reversal was not regular, for Default of an Appearance by the Heir, who prosecuted the Writ of Error; and that there was no Day given to the Attorney General; nor was the Attorney General, or the Patentee, a Party to the Record; nor any Plea or Answer made by either of them to the Assignment of the Errors.
Answered.—To this it was answered, That by the Common Practise in the Crown Office, no Warrants of Attorney are filed, neither for Defendants upon Indictments, nor for Plaintiffs in the Writ of Error; that it had not been known, within the Memory of any Man living, that such Warrants were ever filed: That there need no Day be given to the King, or the Attorney General, for that the King's Attorney was supposed always present in Court, and the King cannot be Nonsuited, because he cannot be called. That there never was any Answer to the Assignment of Errors in such Cases; that in Capital Cases there needs no joining of Issue upon pleading Not guilty.
Argued that the want of ipso vivente in the Judgment a frivolous Objection. Precedents.—Then it was argued, That there was no Error to warrant the Reversal to the Attainder; that the Exception taken to the Judgment was trivial and frivolous; that ipso vivente was not of Necessity to be inserted; that never any Judge was known to require that the Man's Bowels should be burnt while he was alive; that the same was impossible to be executed; that the Law never appointed any Judgment for Treason, as essential, besides Drawing and Hanging; and that Quartering has been so long used, as to be accounted Part of the Judgment, yet 'tis not necessary to make a good Judgment; and if that be so, no more is needful than Drawing, Hanging, and Quartering; that ancient Precedents were thus short; Rot' Parliament' 3 H. 5. p. 1. n. 6. Thomas de Gray & al' had been attainted of Treason upon a special Commission at Southampton, and the Record of the Attainder removed into Parliament, 3 H. 5. and the Judgment was good, Thomas de Gray ut proditor Domini Regis & Regni sui Angliæ distrahatur, suspendatur & decapitetur: And in the Records Penes Thes. & Camar' Scacc', 3 H. 7. f. 10. a. 'tis detrahatur & suspendatur. And many other there are in that Place to the same Effect, and in the same Manner, Glanvil. lib. 3. cap. 13. & Fleta cap. 16. And there is the Case of David Prince of Wales, who was Drawn, Hang'd, [134] Beheaded, Dismembred and Burnt, Britt. de Treason, cap. 8. p. 16. Drawing and Death is the Punishment of Treason, & des Appeles, c. 22. p. 43. to the same Effect; & Lib. Assis. 30 E. 3. pl. 19. and Abundance of Records were cited as found in the Exchequer, and nothing mentioned in them but detrahatur & suspend'. And then was cited Rot. Parl. 2 H. 6. n. 18. and the Book 1 H. 6. 5. 19 H. 6. 103. and 1 H. 7. 24. Bro. Coron. 129. there is a Judgment against Humfry Stafford per omnes Justiciar' Angliæ, quod iterum ducatur turri & abinde ponatur super herdillum, & trahatur per London ad Tyburn, ibidem suspendatur, & ante mortem corda scindantur, & caput scindatur, & Corpus ejus dividatur in quatuor partes, & mittentur ad voluntatem Domini Regis, Earl of Essex's Case, Moore's Rep. and Owen's Case in 1 Roll's Rep. have not this inserted. And Stamford, who was a Judge in 1 & 2 Ph. & M. says c. 19. p. 128. only en son view: And Alexander Burnett, who was convicted of Treason for taking Romish Orders at the Old Baily, 26 Car. 2. Rot. 56. had no such Judgment; Corcker's Case for the like Offence, 31 Car. 2. Rot. 239. William Marshal 31 Car. 2. Rot. 240. And Mr. John Hampden had the like Judgment as Burnett, &c. 1 Jac. 2. upon confessing an Indictment of the same Kind with Walcott's. Whereupon considering that many Precedents were without this, and that the essential Parts of the Punishment were in this Judgment, 'twas prayed that the Judgment of Reversal might be Reversed, and the Attainder confirmed.
Argument against the Original Judgment.—On the other Side it was argued, That the Original Judgment was Erroneous, and the Reversal just. And first it
91
