6

have deterred them from putting it in execution, they were at best doubtful, and such as neither the prisoners nor officers were the competent judges of. That the sealing is a mere English form, and applicable to English warrants; but when the act comes to have execution here, it must be given effect to, secundum leges et consuetudines Scotia,' and these require nothing more than the subscription of the magistrate. That leaving the day of examination blank, was perhaps not strictly regular, but in the circumstances of the case, it is plain that the prisoners were meant to be brought immediately, or next morning, before the magistrate; and so they must have understood, had they known of the defect. As to the warrant allowing no person to break open doors, the truth is, that all warrants under this act, imply a power to break open, being granted against disorderly and irregular persons; and so, as will be found, it has been understood in practice. Lastly, as to the defence of the prisoners not falling under the description of those being liable to be comprehended, the officers certainly were not to be accountable for this error, or resisted to the death on that account; that they had no power or right to judge of the competency of the warrant. Besides, it was no irregularity of theirs, but of the magistrates who issued it, and ample redress lay against them if the warrant was illegal. In the case of a Med. Fuge warrant, obtained without

the oath of the party who applies for it; or of a waarant granted to apprehend a criminal, but without a signed information as the Act 1701* requires, would the person, against whom the warrant is issued, be entitled, on the ground of these defects, to kill the officer sent to apprehend him; or even the officer be justifiable in not executing the warrant, on the statement of its defects by the party himself? He certainly would not: the law of Scotland knows of no right in a private person, 'jus sibi dicere;' least of all to take vengeance in this form, against an innocent servant of the law. His lordship concluded, by his stating, explicitly to the jury, that in his opinion there occurred in this case, almost every thing, that, by the law of Scotland, is held to constitute murder; deliberation, malice, and a purpose to kill, without any thing which could amount to provocation or self defence. He added, however, that under_all_the_circumstances of the case, he thought the father more culpable of the two. The jury found the father guilty, and acquitted the son. The former received sentence of death, but obtained first a reprieve and afterwards a free pardon." Treatise on Crim. Law of Scotland, pp. 21, et seq.

* Concerning this "Act against Wrongous Imprisonment," &c. see a Note to the Case of Sommersett the negro, A. D. 1722.

538. The Trial of LAWRENCE Earl FERRERS, for the Murder of John Johnson: Before the Right Honourable the House of Peers, in Westminster-Hall, in full Parliament, on Wednesday the 16th, Thursday the 17th, and Friday the 18th of April: 33 GEORGE II. A. D. 1760.

Wednesday, April 16, 1760.

In the Court erected in Westminster-Hall, for the Trial of Lawrence Earl Ferrers, for the Murder of John Johnson.

>

ABOUT eleven of the clock the Lords came from their own house into the court erected in Westminster-Hall, for the Trial of Lawrence earl Ferrers, in the manner following:

The lord high steward's gentlemen attendants, two and two.

The clerks assistant to the House of Lords, and the clerk of the parliament.

Clerk of the crown in Chancery, bearing
the king's commission to the lord high steward;
and the clerk of the crown in the King's-bench.
The masters in chancery, two and two.
The judges, two and two.

The peers eldest sons, two and two.
Peers minors, two and two.

York and Windsor heralds.

The yeoman usher of the house.

Then the peers, two and two, beginning with the youngest baron.

Then four serjeants at arms with their maces, two and two.

The serjeant at arms attending the great seal, and purse-bearer.

Then Garter king at arms, and the gentleman usher of the black rod, carrying the white staff before the lord high steward.

Robert lord Henley, lord keeper of the great seal of Great Britain, Lord High Steward, alone; his train borne.

When the Lords were placed in their proper seats, and the Lord High Steward upon the woolpack;

The clerk of the crown in Chancery, having his majesty's Commission to the lord high steward in his hand, and the clerk of the crown in the King's-bench, standing before the clerk's table with their faces towards the state, made

Four serjeants at arms with their maces, three reverences; the first at the table, the

two and two.

second in the midway, and the third near the

Then the Lord High Steward stood up, and parliament, according to the law and custom of spoke to the peers.

hæc verba :

thereupon, against Lawrence earl Ferrers; in | Lawrence earl Ferrers for murder, returnable immediately, before the king in parliament. "YORKE and Yorke." RETURN.

"By order of the Lords spiritual and temporal, in parliament assembled, by virtue of the within writ to me, and others, directed, I send to our sovereign lord the king, in this present parliament, under my seal, the indictment and inquisition within mentioned, with all things touching the same, in certain schedules hereunto annexed, as I am within commanded.

"H. BATHURST."

The CERTIORARI and RETURN. "George the second, by thegrace of God, of Great Britain, France, and Ireland, king, defender of the faith, and so forth, to our justices, assigned by our letters patent under our great seal of Great Britain, to enquire more fully the truth, by the oath of good and lawful men of our county of Leicester, and by other ways, means, and methods, by which they should and might better know (as well within liberties as without), by whom the truth of the matter may be the better known and enquired into, of all "Leicestershire. Be it remembered, That at treasons, misprisions of treasons, insurrections, the general session of our lord the king, of rebellions, counterfeitings, clippings, washings, Oyer and Terminer, holden for the county of false coinings, and other falsities of the money Leicester, at the castle of Leicester, in and for of Great Britain, and of other kingdoms or dothe same county, on Friday the fourteenth, day minions whatsoever, and of all murders, felo- of March, in the thirty-third year of the reign nies, manslaughters, killings, burglaries, rapes of our sovereign lord George the second, now of women, unlawful meetings and conventicles, king of Great Britain, and so forth, before unlawful uttering of words, assemblies, mis- Henry Bathurst, esq. one of the justices of our prisions, confederacies, false allegations, tres- said lord the king, of his court of Common passes, riots, routs, retentions, escapes, conBench; James Hewitt, esq. one of the sertempts, falsities, negligences, concealments, jeants at law of our said lord the king, and maintenances, oppressions, champarties, de- others their fellows, justices of our said lord the ceits, and all other evil doings, offences, and king, assigned by letters patent of our said injuries whatsoever, and also of the accessaries lord the king, under his great seal of Great of them, within the county aforesaid (as well Britain, to them and others, and any two or within liberties as without), by whomsoever more of them made, of whom our said lord the and in what manner soever done, committed, king would have the said Henry Bathurst, or perpetrated, and by whom, or to whom, esq. and James Hewitt, esq. to be one, to enwhen, how, and after what manner; and of all quire more fully the truth, by the oath of good other articles and circumstances concerning the and lawful men of the county aforesaid, and premises, and every or any of them, in any by all other ways, means, and methods, by manner whatsoever, and the said treasons, and which they should or might better know (as other the premises, according to the laws and well within liberties as without) by whom the customs of England, to hear and determine, truth of the matter may be the better known and to every of them, greeting: We, being and enquired into, of all treasons, misprisions of willing, for certain reasons, that all and singular treasons, insurrections, rebellions, counterindictments and inquisitions of whatsoever fe- feitings, clippings, washings, false conings, Jonies and murders whereof Lawrence earl and other falsities of the monies of Great Bri Ferrers viscount Tamworth, late of the parish tain, and of other kingdoms or dominions of Breedon, in the county of Leicester, is in- whatsoever; and of all murders, felonies, dicted before you (as is said), be determined manslaughters, killings, burglaries, rapes of before us, and not elsewhere, do command women, unlawful meetings and conventicles, you, and every of you, that you, or one of unlawful uttering of words, assemblies, misyou, do send, under your seals, or the seal of prisions, confederacies, false allegations, tresone of you, before us, in our present parlia-passes, riots, routs, retentions, escapes, conment immediately after the receipt of this our tempts, falsities, negligences, concealments, writ, all and singular the indictments and inmaintenances, oppressions, champarties, dequisitions aforesaid, with all things touching ceits, and all other evil doings, offences, and inthe same, by whatsoever name the said Law-juries whatsoever, and also of the accessaries rence earl Ferrers viscount Tamworth is of them, within the county aforesaid (as well called in the same, together with this writ, that within liberties as without) by whomsoever, we may further cause to be done thereon what and in what manner soever, done, committed, of right, and according to the law and custom or perpetrated, and by whom, or to whom, of England, we shall see fit to be done. Wit- when, how, and after what manner; and of all ness ourself at Westminster, the 18th day of other articles and circumstances concerning the March, in the 33rd year of our reign. premises, and every or any of them, in any manner whatsoever; and the said treasons, and other the premises, according to the laws and customs of England, for this time, to hear and determine, by the oath of John Grey, John Paliner, Thomas Boothby the elder, William Pochin, Nathan Wrighte, Charles Skrymsher

"YORKE and YORKE."

"To the justices assigned to enquire of all treasons, murders, &c. committed within the county of Leicester, a writ of Certiorari, to certify into the upper house of parliament the indictment found before them against

19th day of the same month of January, in the S3d year aforesaid; on which said 19th day of January, about the hour of nine of the clock in the morning, he the said John Johnson, at the parish of Breedon aforesaid, in the county of Leicester aforesaid, of the mortal wound aforesaid died: and so the jurors aforesaid, upon their oaths aforesaid, do say, that the said Lawrence earl Ferrers, viscount Tamworth, the said John Johnson, in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace of our said lord the king, his crown and dignity."

"A true Bill.-Witnesses, Elizabeth Burgeland, Elizabeth Saxon, Elizabeth Dolmau, Sarah Johnson, Thomas Kirkland, William Tomlinson.-Sworn in Court."

Lord High Steward. Is it your lordships' pleasure, that the Judges have leave to be co. vered?-Lords. Ay, ay.

Clerk of the Crown. Serjeant at Arms, make proclamation for the lieutenant of the Tower to bring his prisoner to the bar.

Serjeant at Arms. Oyez, Oyez, Oyez! Lieutenant of the Tower of London, bring forth Lawrence earl Ferrers, your prisoner, to the bar, pursuant to the order of the House of Lords.

having the axe carried before him by the gentleman-gaoler, who stood with it on the left hand of the prisoner, with the edge turned from him. The prisoner, when he approached the bar, made three reverences, and then fell upon his knees at the bar.

"Leicestershire. The jurors for our present sovereign lord the king, upon their oath, present, that the right honourable Lawrence earl Ferrers, viscount Tamworth, late of the parish of Breedon, in the county of Leicester, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the 18th day of January, in the 33d year of the reign of our present sovereign lord George the 2d, by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, and so forth, with force and arms, at the parish of Breedon, in the county of Leicester aforesaid, in and upon one John Johnson, in the peace of God, and of our said lord the king, then and there being, feloniously, wilfully, and of his malice aforeThen Lawrence earl Ferrers was brought to thought, did make an assault, and that he the said Lawrence earl Ferrers, viscount Tam-the bar by the deputy governor of the Tower, worth, with a certain pistol of the value of two shillings, then and there being charged with gunpowder, and a leaden bullet, which pistol he the said Lawrence earl Ferrers, viscount Tamworth, in his band then and there had and held at, against, and upon him the said John Johnson, then and there feloniously, wilfully, and of his malice aforethought, did discharge and shoot off: and that he the said Lawrence earl Ferrers, viscount Tamworth, with the leaden bullet aforesaid, by force of the gunpowder aforesaid out of the said pistol, by him the said Lawrence earl Ferrers, viscount Tamworth, so as aforesaid discharged and shot off, him the said John Johnson, in and upon the left side of the said John Johnson, a little under the lowest rib of the said John Johnson, then and there feloniously, wilfully, and of his malice aforethought, did strike and wound, giving to the said John Johnson then and there, with the leaden bullet aforesaid, out of the said pistol so as aforesaid discharged and shot off, in and upon the said left side, a little under the lowest rib of the said John Johnson, one mortal wound, of the breadth of one inch and depth of four inches: of which said mortal wound the said John Johnson, at the said parish of Breedon, in the said county of Leicester, did languish, and languishing did live, until the

* The meaning of the word until was much litigated in the case of the King against Stevens and Agnew, Trin. 44 G. 3, 5 East 244, in which case it was decided that the word may be construed either exclusive or inclusive of

Lord High Steward.

rise.

Your lordship may

Then the prisoner rose up, and bowed to his grace the Lord High Steward, and to the House of Peers; which compliment was returned him by his grace, and the lords.

Then proclamation having been made again for silence, the Lord High Steward spake to the prisoner as follows:

Lord High Steward. Lawrence earl Ferrers; You are brought to this bar to receive your trial upon a charge of the murder of John Johnson; an accusation, with respect to the crime, and the persons who make it (the grand jury of the county of Leicester, the place of your lordship's residence), of the most solemn and serious nature.

Yet, my lord, you may consider it but as an accusation; for the greatest or meanest subject of this kingdom (such is the tenderness of our law) cannot be convicted capitally, but by a

the day to which it is applied, according to the context and subject matter. So in Pugh v. Duke of Leeds, Cowp. 714, it was held, that in the phrase "from the day of the date" the word 'from' might be construed to include or exclude the day of the date.

charge made by twelve good and lawful men, and a verdict found by the same number of his equals at the least.

My lord, in this period of the proceedings, while your lordship stands only as accused, I touch but gently on the offence charged upon your lordship; yet, for your own sake, it behoves me strongly to mark the nature of the judicature before which you now appear.

for now he stands at the bar upon his deliverance.

Lord High Steward. My lords, the distance of this place from the bar is so great, that I must desire your lordships' leave to go down to the table for the convenience of hearing. Lords. Ay, ay.

Then his grace removed to the woolpack, and delivered the white staff to be held by the

gentleman usher of the black rod; who, dur-
livered back the white staff upon his knee.
ing the whole trial, always received and de-

Mr.Perrott. (Afterwards a baron of the Exchequer.) May it please your lordships; this noble lord Lawrence earl Ferrers, the prisoner at the bar, stands indicted for the felonious kill ing and murder of one John Johnson; and the indictment sets forth, That the right honour

It is a happiness resulting from your lordship's birth and the constitution of this country, that your lordship is now to be tried by your peers in full parliament. What greater consolation can be suggested to a person in your unhappy circumstances, than to be reminded, that you are to be tried by a set of judges, whose sagacity and penetration no material circumstances in evidence can escape, and whose justice nothing can influence or pervert? This consideration, if your lordship is con-able Lawrence earl Ferrers, viscount Tamscious of innocence, must free your mind from any perturbations that the solemnity of such a trial might excite; it will render the charge, heavy as it is, unembarrassing, and leave your lordship firm and composed, to avail yourself of every mode of defence, that the most equal and bumane laws admit of.

Your lordship, pursuant to the course of this judicature, hath been furnished with a copy of the indictment, and hath bad your own counsel assigned; you are therefore enabled to make such defence as is most for your benefit and advantage; if your lordship shall put yourself on trial, you must be assured to meet with nothing but justice, candour, and impartiality.

worth, on the 18th day of January, in the 338 year of his present majesty's reign, with force and arms, at the parish of Breedon, in the county of Leicester, in and upon one John Johnson, feloniously, wilfully, and of his malice aforethought, did make an assault; and that a certain pistol then and there being charged with gunpowder and a leaden_bullet, which pistol he the said Lawrence earl Ferrers then and there held in his hand, at, against, and upon him the said John Johnson, then and there feloniously, wilfully, and of his malice aforethought, did discharge and shoot off; and with the leaden bullet aforesaid, by force of the gunpowder aforesaid, out of the said pistol by him so discharged and shot off, the said John Johnson in and upon the left side of the said John Johnson, a little under his lowest rib, then and there feloniously, wilfully, and of his malice aforethought, did strike and wound, giving to the said John Johnson then and there with the leaden bullet aforesaid, out of the said pistol Lord High Steward. Lawrence earl Fer- so as aforesaid discharged and shot off, in and rers, Your lordship will do well to give atten- upon the said left side a little under the lowtion, while you are arraigned on your indict-est rib of the said John Johnson, one mortal

Before I conclude, I am, by command of the House, to acquaint your lordship, and all other persons who have occasion to speak to the Court, during the trial, that they are to address themselves to the Lords in general, and not to any lord in particular.

ment.

wound, of the breadth of one inch, and depth of four inches; of which said mortal wound the said John Johnson did languish, and languishing did live, until the 19th day of the same month of January, in the 33d year aforesaid; on which day, about the hour of nine of the clock in the morning, he, the said John Johnson, of the mortal wound aforesaid, died; and so the jurors, upon their oath, do find, that the said Lawrence earl Ferrers, the said John Johnson, in manner aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace of our lord the king, his crown and dignity.

To this indictment the noble lord, the prisoner at the bar, hath pleaded Not Guilty, and for his trial bath put himself upon your lordships, his peers here present.

We, who have the honour to serve the crown in this prosecution, shall call our evidence; and, if we prove the fact charged by this indictment, we doubt not but your lordships will