was observed, That this Writ of Error was new and particular, ex gravi querela of the Countess of Roscommon, who had nothing to do with the Record, was a mere Stranger to it, and yet 'tis suggested that the Reversal was to her Damage.
Precedents for ipso vivente.—Then 'twas urged that there was an Error in the first Judgment, for that the Judgment, in Case of Treason, is by the Common Law, and that it is and must be certain, and not at the Pleasure of the Court which pronounces and gives it: That it ought to be severe, because 'tis a Punishment for the greatest Offence which can be committed, Crimen læsæ Majestatis a Sin of the first Magnitude, an Offence which imports Treachery to the Prince, Enmity to the Country, Defiance to all Government, a Design to overthrow and confound all Order and Property, and even the Community it self; and in its Consequence occasions the Practise of all other Crimes whatsoever, as Murders, Burglaries, Robberies, &c. and therefore our Constitution hath imposed upon it a severe and cruel Judgment, such as the English do allow or permit in no other Case; the greatest of other Crimes incur Death only; but for Treason the Judgment is different. Sir Tho. Smith's Treatise de Republica Anglic. 198. there ought in Reason to be a Proportion between the Offence and the Punishment; and as this is the greatest, so the Penalty is morte multo atrocior; and in Fleta, lib. 1. [135] p. 21. 'tis cum aggravatione pœnæ corporalis, somewhat more than Death. Then this being a Common Law Punishment, and not prescribed by any Statute, the Knowledge of it must be fetcht from our Law Books and from Precedents; for the General Practise of the Realm is the Common Law; 'tis described with an ipso vivente in Smith's Republica Anglic. p. 28. lat. Edit. p. 245. Stamf. 182. en son view, which is tantamount; and Stamford wrote 2 El. In Coke's 3 Inst. 210. 'tis ipsoque vivente comburentur. Pulton de Pace Regni 224. and many other Books were cited to the same Effect: And 'twas affirmed that there was no Book, which recited the Judgment at large, but had this Particular in it. Several Books do in short put it, That for Treason the Party shall be Drawn and Hanged and Quartered, but those are only Hints of the chief Parts, not Recitals of the Judgment it self. In the English Book of Judgments, printed 1655. p. 292. 'tis mentioned particularly as the King's Bench have adjudged it should be. The Duke of Buckingham's was so, 13 H. 8. Stow's Chronicle 513. shews that he was the Person. Then 'twas said, they have been thus in every Age without Interruption, till 26 Car. 2. Humfrey Stafford's Case 1 H. 7. 24. which was per consensum omnium Justiciariorum, tho' quoted on the other Side as shortly stated in the Year-Book; yet on the Roll, which hath been seen and perused, 'tis with an ipso vivente: Plowden 387. and Rastal's Entries 645. the same Case, is thus; Coke's Ent. 699. is so likewise: John Littleton in 43 Eliz. Coke's Ent. 422, 423, and 366. is so. In the Lord Stafford's Case, 33 Car. 2. by the Direction of this House, and with the Advice of all the Judges, was the Judgment so given by the Earl of Nottingham then Lord High Steward. In the Lord Preston's Case 'tis so, which was drawn by Advice of the then Attorney and Solicitor, the present Keeper and Chief Justice of the Common Pleas.
As to the Objection, That vivens prosternatur doth imply it, and that's enough. It was answered, That ipso vivente comburentur implies both, but not econtra; and all the Precedents shew the latter to be requisite. And as to the Case of David Prince of Wales mentioned in Fleta, there's only a Relation of what was the Execution, not of what was the Judgment. And Coke 2 Inst. 195. says, That the Judgment was in Parliament, and therefore the same can be no Precedent to this Purpose; and any one that runs over Cotton's Records, will find the Judgments in Parliament to be Different, as the Nature of the Case required. No Argument can be drawn from the Acts of the Legislature to govern Judiciary Proceedings; however, John Hall's Case, 1 H. 4. Cott. 401. is as now contended for. Before the 1 H. 7. there were some Erroneous Attainders; and the 29 El. takes Notice of them as so erroneous. The Judgments against Benson and Sir Andrew Helsey (cited below) are plainly erroneous; they dispose of the Quarters, which they ought not, but leave the same to the King's Pleasure. Sir Andrew's Precedent is a monstrous Arbitrary Command by Writ, to Commissioners of Oyer and Terminer, ordering them [136] to Examine him, and to give Judgment in manner as in the Writ is directed, that therefore is not to be justified; and 'twas before 25 E. 3. Henry
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