DIE Lunæ, 19 Martii.
Domini tam Spirituales quam Temporales præsentes
|Ds. Cowper, Cancellarius, & Senescallus Mag. Britanniœ pro hac Vice.
Comes Sunderland, C.P.S.
Dux Devon, Senescallus.
Dux Bolton, Camerarius.
Dux St. Albans.
Dux Bucks & Nor.
Dux Ancaster, Magnus Camerarius.
Viscount Say & Seale.
|Ds. Willoughby Er.
Ds. Howard Eff.
Ds. St. John.
White's Nat. Bill.
vice lecta est Billa, intituled, "An Act
for naturalizing Caspar White."
The House was adjourned during Pleasure, to robe.
The House was resumed.
E. of Wintoun, House to proceed to Judgement against him:
The House was adjourned into Westm'r Hall, to proceed further in order to Judgement upon George Earl of
And the Lords and others went in the usual Manner.
And, their Lordships being there seated, Proclamation
was made for keeping Silence; as also Proclamation,
requiring the Lieutenant of The Tower to bring the
Prisoner to the Bar.
The Earl at the Bar:
Who was brought to the Bar accordingly, and there
kneeled until the Lord High Steward directed him to
rise; and then demanded of him, "If he had any
Thing to offer, why Judgement should not pass against
him according to Law?"
Whereupon he acquainted the Court, "That his
Counsel had a Point of Law to speak to; (videlicet,)
That he was not such a Person against whom Judgement for High Treason ought to be pronounced."
Sir C. Phipps, his Counsel, continues to speak, though interrupted by the L. High Steward:
And Sir Constantine Phipps, One of the said Earl's
Counsel, beginning to speak to the Court; the same
was objected to by some of the Managers for the House
But the said Sir Constantine nevertheless continuing to
speak, though interrupted by the Lord High Steward:
The House was moved, "To adjourn to the House
And their Lordships adjourned accordingly.
And being there resumed;
The House came to the following Resolution:
Judgement for Treason to be given against the Earl:
"That the Matter moved by the Prisoner at the Bar
is a Matter of Fact, and not a Matter of Law; and
that their Lordships are of Opinion, he is such a
Person against whom Judgement for High Treason
ought to be given."
Sir C. Phipps to be reprimanded:
And Ordered, That the said Sir Constantine Phipps be
reprimanded by the Lord High Steward, for having begun to speak on Behalf of the Earl of Wintoun; there
being no Point of Law stated, nor Leave given by
the Court to speak to it: And that he be at the same
Time told, "He ought not to presume to offer any Thing
to the Court, without being first acquainted he is at
Liberty so to do."
Then the House was adjourned again into Westm'r
And the Lords being there seated, and Proclamation
for Silence made;
The Lord High Steward acquainted the Earl of Wintoun with the abovementioned Resolution; and also reprimanded Sir Constantine Phipps, as directed.
And then again demanded of the said Earl of Wintoun, "If he had any Thing to offer, why Judgement
should not pass against him according to Law?"
The Earl moves in Arrest of Judgement:
Whereupon the said Earl moved, in Arrest of Judgement, "That the Impeachment is insufficient, for that
the Time of committing the High Treason is not
therein laid with sufficient Certainty."
And the Court directing the Counsel to speak to the
His Counsel heard concerning it:
Sir Constantine Phipps and Mr. Peer Williams were
heard accordingly; as also some of the Managers for
the House of Commons, in Answer to what the Counsel had offered.
And the Counsel having replied; and One of the Managers being heard, in Answer thereunto.
The House was adjourned to the House above.
And being there resumed;
Their Lordships were informed, "That the Commons, with their Speaker and the Mace, were at the
They were called in; and Mr. Speaker, at the Bar,
"The Knights, Citizens, and Burgesses, in Parliament assembled, did, at this Bar, in the Name of
themselves and of all the Commons of Great Britain,
impeach George Earl of Wintoun of High Treason;
and exhibited Articles against him, and have made
good the same: I do therefore, in the Name of the
Commons in Parliament assembled, and of all the
Commons of Great Britain, demand Judgement against
the said Earl, for High Treason."
And they being withdrawn;
Questions put to the Judges, concerning the Matters moved in Arrest of Judgement by the Earl:
The following Questions were proposed to be put to
the Judges; (videlicet,)
1. "Whether, in Indictments for Treason or Felony,
it be necessary to alledge some certain Day, upon
which the Fact is supposed to be committed; or, if it
be only alledged in such Indictments that the Crime
was committed on or about a certain Day, whether
that would be sufficient?"
2. "And if a certain Day ought to be alledged,
when the Fact is supposed to be committed, whether
it be necessary, upon the Trial, to prove the Fact to
be committed upon that Day?"
And the Judges being directed to deliver their Opinions thereupon:
To the First Question they said,
"It is necessary, that there be a certain Day laid in
such Indictments, on which the Fact is alledged to
have been committed; and that the alledging, in such
Indictments, that the Fact was committed on or about
a certain Day, would not be sufficient."
And to the other Question, they said,
"That although a Day certain, when the Fact is
supposed to be done, be alledged in such Indictments;
yet it is not necessary, upon the Trial, to prove the Fact
to be committed upon that Day; but that it is sufficient, if proved to have been done on any other Day
before the Indictment found."
Matters moved in Arrest of Judgement not sufficient:
Then it was agreed by the House, and Ordered,
That the Lord High Steward be directed to acquaint
the Prisoner at the Bar, in Westm'r Hall, "That the
Lords have considered the Matters moved in Arrest of
Judgement; and are of Opinion, That they are not
sufficient to arrest the same; but that the Impeachment is sufficiently certain in Point of Time, according to the Forms of Impeachments in Parliament."
And it being moved, "That the Judgement to be
pronounced upon the Earl of Wintoun be the same
as was pronounced upon the Six late condemned
And, after Debate thereupon; and reading the
Judgement in High Treason, as set down in the 101st
Chapter of the 3d Part of Sir Edward Coke's Institutes;
the following Order was made:
"Ordered, That the Judgement to be pronounced
upon George Earl of Wintoun be the same as was
pronounced upon the Six Lords lately condemned."
Message to H.C. that the Lords are going to give Judgement upon the Earl:
Then, a Message was sent to the House of Commons,
by Sir Thomas Gery and Mr. Lovibond:
To acquaint them, that the Lords are presently going
down into Westminster Hall, to give Judgement upon
George Earl of Wintoun, who stands convicted of High
The Messengers, being returned, acquainted the House,
"That they had delivered their Message."
The House was then adjourned into Westm'r Hall.
And the Lords being there seated, and Proclamation
commanding Silence made;
Lord High Steward's Speech:
The Lord High Steward acquainted the Earl of
Wintoun as before directed; and then spake as follows:
"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.
"After your Lordship has moved in Arrest of Judgement, and the Lords have disallowed that Motion;
their next Step is, to proceed to Judgement.
"The melancholy Part I am to bear, in pronouncing
that Judgement upon you, since it is His Majesty's
Pleasure to appoint me to that Office, I dutifully
submit to; far, very far, from taking any Satisfaction in it.
"Till 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.
"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 blackest 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
"And this is most evidently true in your Lordship's
Case; considering, that Success in your Treason must
insallibly have established Popery, and that never
fails to bring with it a Civil as well as Ecclesiastical
Tyranny; which is quite another Sort of Constitution than that of this Kingdom, and cannot take Place
till the present is annihilated.
"This your Crime (so I must now call it) is the more
aggravated, in that, when it proceeds so far as to take
Arms openly, and to make an offensive War against
lawful Authority, 'tis generally (as in your Case)
complicated with the horrid and crying Sin of murdering many, who are not only innocent, but meritorious.
"And if Pity be due (as I admit it is in some Degree)
to such as suffer for their own Crimes; 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 Government, as slain in lawful War; even judging
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 Laws; for sure but little Blood
can be better 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
"This puts me in Mind to observe to your Lordship,
that 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.
"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 injudicious 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
"The only, but true, Consolation every wise Government has in such a Case (after it has tempered
Justice with Mercy in such Proportion as found Discretion directs, having always a Care of the public
Safety above all Things) is this:
"That such like Seeds of unreasonable Discontents
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
fullied by the Tongues of Rebels and their Accomplices, when their Arms 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, have
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 Lordship 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; (videlicet,)
"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 dead,
for you must be cut down alive; then your
Bowels must be taken out, and burnt before
your Face; then your Head must be severed
from your Body, and your Body divided into
Four Quarters; and these must be at the
"And God Almighty be merciful to your
Then the Lord High Steward stood up uncovered;
and, declaring, "There was nothing more to be done
by Virtue of the present Commission," broke the
Staff, and pronounced it dissolved.
And then the House was adjourned to the House
And being there resumed;
Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque ad et in diem Mercurii,
vicesimum primum diem instantis Martii, hora undecima
Auroræ, Dominis sic decernentibus.