not allowed as Error below, by Reason of the many Precedents which in the Entries did omit it. That tho' the Practise be common to pronounce it, yet few or no ancient Records do mention it; that in 3 Inst. 210. where the Judgment is taken notice of, this is not Part. In Plowd. 387. 'tis omitted, that Interiora includes it; In Bro. Coron' 128. 'tis not inserted; That this was never entred as Part of the Judgment, till 12 Car. 2. Then as to the separatim allocut' upon the Arraignment, that was likewise over-ruled below; for it must be intended a several Demand or Question: And the same is implied in this Entry, as much as if it had been expressed, and the Precedents are both ways. But the main and only Exception, for which the Court revers'd the Judgment, was That in the Indictment 'tis not said to be a Fact done contra ligeantiæ suæ debitum; and as to this, it was argued, That it was not necessary to use those very Words; That they are not Terms of Art, such as are absolutely necessary; they are not like to the Words Burglariter, Felonice, Murdravit, and the like; That proditorie implies it; that 'tis plainly apparent to be contrary to his Allegiance; That all the whole Indictment shews it to be so, 'tis not weighing his Allegiance; 'tis against his true natural Liege Lord and Sovereign; That it appears he was natural born Subject; That the very Words themselves are only of Aggravation; That they may as well be laid precedent to the Fact as in the Conclusion; That here is that which is tantamount. That Sir Henry Vane's Indictment was thus, Cotton and Messinger's, Sid. 328. The Scotch Officers in Suffolk, Lambert's, Hacksham's, Titchburn's, and many more.
That 'tis true, the Fact in the Indictment ought not to be made good by Intendment or Inference; but if there be Words which shew, that the Party owed Allegiance, its enough. An alien Enemy is not indictable in this Manner; but here 'tis shown, That he is a Person capable of committing Treason, and that the Act done was against his Duty and Obedience which he owed as a Subject; That many Precedents have been thus; That nimia subtilitas in jure reprobatur; That a Certainty to a common Intent is sufficient, Long's Case; That in 2 Roll's Abr. 82. contra coron' & dignitat' suas is held not necessary; wherefore, and for other Reasons then urged, 'twas prayed, That the Reversal might be reversed, and the King restored, &c.
[188] Argument for the Defendant in Error. Spoken to severally. Precedents.—On the other Side it was argued, That this Reversal was just; That this Arraignment being Joint, for want of separatim makes the Proceedings Erroneous; That the Precedents do use the Word separatim; and Abundance of Entries were mentioned, as Leach and Ruthford & al', 28 H. 8. Dudely, Gates and Palmer, 1 and 2 Phil. and Mar'. Throgmorton and Weddall, 2 and 3 Ph. and M. Peckham and Daniel, eodem Anno. Blunt and Danverse, 44 Eliz. Earl of Essex and S. eodem Anno. Guy Fawkes and Sir Edward Digby, 3 Jac. 1. Harrison, Scot and the other Regicides, 12 Car. 2. 1660. Green, Berry and Hill, for the Murder of Sir E. Godfrey, 1678. Ireland, Pickering and Grove, 31 Car. 2. rot' 242. Whitebread, Fenwick & al', 32 Car. 2. rot' 224. Johnson & al', 2 Will. & Mar. num'. 57. and Lord Preston and Ashton, Trin. 3 Will. & Mar. n. 16. separatim allocut', and many more. Besides the Nature of the Thing is such, as requires a several Arraignment, because they may plead several Pleas, and they are several Offences; and tho' they plead in this Case severally, that's not enough; for they ought to be askt severally.
Cut off the Privy members. Precedents.—But this was not so much insisted on, as the next Error, the Omission of secreta in the Judgment; 'tis Part of the Judgment upon the 25 Edw. 3. for compassing, &c. tho' for coining, 'tis only to be drawn and hanged, according to Morgan's Case, Cro. Car. 383. Stamp. 182. 3 Inst. 15, 17. Finch's Law, lib. 2. cap. Treason, they are all secreta membra abscindant', as well as interiora; all common Books have it, as Bolton's Justice of the Peace, tit. Precedents of Indictments for High Treason, 38, 42. Dalton's Justice, p. 335. Sheppard's Epitome, tit. Crown, and all those Common Abridgments, &c. Lord Preston's and Ashton's was drawn by good Advice, Harrison and al', 12 Car. 2. Ireland, Bickering and Grove, 1678. Whitebread's 1679. Walcott's, 1683. Langhorn's, 31 Car. 2. Colonel Sidney's 1683. The Earl of Stafford's in 1680. was thus, upon Debate and Consultation with all the Judges, Dominus Rex versus Owen, 1 Roll's Rep. 185, 186. there 'tis mentioned.
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