1708. reafons were to be offered with every challenge; and, if the court allowed them, they were to be proved immediately. Then the matter of the charge, which is there called. the relevancy of the libel, was to be argued by lawyers, whether the matter, suppose it should be proved, did amount to high-treafon, or not. This was to be determined by a fentence of the court, called the Interloquitur; and the proof of the fact was not till then to be made. Of that the jury had the cognizance. Anciently the verdict went with the majority, the number being fifteen; but, by a late act, the verdict was to be given upon the agreement of two third parts of the jury. In the fentence, the law did not limit the judges to a certain form, but they could aggravate the punishment, or moderate it, according to the circumftances of the cafe. All this method was to be fet aside; a grand jury was to find the bill; the judges were only to regulate proceedings, and to declare what the law was; and the whole matter of the indictment was to be left intire to the jury, who were to be twelve, and all to agree in their verdict. In one particular, the forms of Scotland were much preferable to thofe in England; the depofitions of the witneffes were taken indeed by word of mouth, but were writ out, and after that were figned by the witneffes; they were sent into the jury; and these were made a part of the record. This was very flow and tedious; but the jury, by this means,. was more certainly poffeffed of the evidence, and the matter was more clearly delivered down to pofterity; whereas the records in England are very defective, and give no light to an hiftorian who perufes them. The Scots opposed this alteration of their way of proceeding. They said, that neither the judges, the advocates, nor the clerks, would know how to manage a trial of treafon. They infifted moft on the having the names of the witneffes to be given to the perfons fome days before their trial. It feemed reasonable that a man fhould know who was to be brought to witness against him, that fo he might examine his life, and fee what credit ought to be given to him. On the other hand, it was faid, this would open a door to practice, either upon the witneffes to corrupt them, or in fuborning other witneffes to defame them. To this it was answered, that a guilty man knew what could be brought against him; and, without fuch notice, would take all the methods poffible to defend himself. But provifion ought to be made for innocent men, whofe chief guilt might be be a good eftate, upon which a favourite might have an 1708-9. eye; and therefore fuch perfons ought to be taken care of. This was afterwards so much softened, that it was only defired that the names of the witneffes, who had given evidence to the grand jury, should, upon their finding the bill, be fignified to the prifoner five hours before his trial. Upon a divifion of the house on this question, the votes were equal; and therefore by the rule of the house, that in such a case the negative prevails, it was loft. warmer. : tures in cafe Upon the third head of the bill the debates grew ftill Of forfei In Scotland many families were fettled by long of treafon. intails and perpetuities; and therefore it was faid, that fince, by one of the articles of the union, all private rights were ftill preserved, no breach could be made on these fettlements. Bishop Burnet carried this further he thought that it was neither just nor reasonable to fet the children on begging for their fathers faults: that the Romans, during their liberty, never thought of carrying punishment fo far: that it was an invention, under the tyranny of the emperors, who had a particular revenue called the Fife (1); and all forfeitures were claimed by them, from whence they were called confifcations: that it was never the practice of free governments that Boulogne flourished beyond any town in the pope's dominions, because they made it an article of their capitulation with the pope, that no confifcation fhould follow on any crime whatsoever that in Holland the confifcation was redeemable by fo very small a fum as an (1) This remark of bifhop Burnet is clearly overthrown by the author of an excellent piece, published this prefent year 1745, and intitled, Some confiderations on the law of forfeitures for high-treafon, occasioned by a claufe in a late act, for making it treafon to correfpond with the pretender's fons, or any of their agents, &c.' in which the law of forfeitures is juftified from the principles of natural juftice, the practice and genius of the freeft ftates, the conftitution of the English government, with a perfpicuity, 1768-9. hundred guilders (m). That many instances might be brought of profecutions, only to obtain the confiication. But in this none of the lords feconded the bishop. It was acknowledged that this was just and reasonable, and fit to be paffed in good times; but, fince the nation was then exposed to fo much danger from abroad, it did not feem advisable to abate the feverity of the law. But clauses were agreed to, by which, upon marriages, fettlements might be made in Scotland, as was practifed in England; for no eftate is forfeited for the crime of him, who is only tenant for life. By this act alfo tortures were condemned; and the queen was impowered to grant commiffions of Oyer and Terminer, as in England, for trying treafons. The Scots infifted on this, that, the jufticiary or the criminal court being preferved by an article of the union, this broke in upon that. It was answered, that the criminal court was ftill to fit in the time regulated; but these commiffions were granted upon fpecial occafions. In the intervals between the terms, it might be neceffary, upon some emergency, not to delay trials too long. But, to give some content, it was provided by a claufe, that a judge of the criminal court fhould be always one of the quorum in these commiffions. Thus the bill paffed in the house of lords, notwithstanding the oppofition of all the Scots lords, with whom many of the tories concurred, they being disposed to oppose the court in every thing, and to make treason as little to be dreaded as poffible. the council of ftate condemns any officer who abuses a public truft in the finances, the armies, the negotiations, or juftice of the republic, to the heaviest penalties by fine, fuited to the crime, the exigency, and example. And it is much the fame thing to the children of a criminal, whether the fortune of the family be taken from them by judgment of intire forfeiture, or by a difcretionary fentence condemning to a fevere fine, which may equal or exceed the value of • it.' The on the bill in The bill met with the fame oppofition in the house of 1708-9. commons; yet it paffed with two amendments. By one, the names of the witneffes, who had appeared before the Proceedings grand jury, were ordered to be fent to the prifoner ten days the house of before his trial. The other was, that no estate in land was commons. to be forfeited upon a judgment of high-treafon; which came up fully to the motion which bishop Burnet had made. Both thefe amendments were looked on as fuch popular things, that it was not probable that the house of commons would recede from them. Upon that, the whigs in the houfe of lords did not think fit to oppofe them, or to lofe the bill; and therefore it was moved to agree to these amendments, with this provifo, moved by the lord Sommers, that they should not take place till after the death of the pretender. It was faid, that, fince he affumed the title of king of Great-Britain, and had fo lately attempted to invade the nation, it was not reasonable to leffen the punishment, and the dread of treason, as long as he lived. Others objected to this, that there would be ftill a pretender after him, fince fo many perfons ftood in the lineal defcent before the house of Hanover, so that this provifo seemed to be, upon the matter, the rejecting the amendment. But it was obferved, that to pretend to the right of fucceeding was a different thing from affuming the title, and attempting an invafion. The amendment was received with this provifo ; but thofe, who were against the whole bill, did not agree to it. The house of commons confented to the provifo, which the lords had added to their amendment, with a further addition, that it fhould not take place till three years after the houfe of Hanover fhould fucceed to the crown. both houfes This met with great oppofition; it was confidered as a The bill diftinguishing character of thofe, who were for or against paffed in the present conftitution and the fucceffion; the Scots ftill oppofing it on the account of their formal laws. Both parties collected their strength, and many, who had gone into the country, were brought up on this occafion; fo that the bill, with all the amendments and provifo's, was carried by a small majority; the lords agreeing to this new amendment. The Scots members in both houses feemed to apprehend, that the bill would be very odious in their country; and therefore, to maintain their intereft at home, they who were divided in every thing elfe, did agree in oppofing this bill, The 1708-9, grace. The court apprehended, from the heat with which the debates were managed, and the difficulty in carrying the An act of bill through both houses, that ill-difpofed men would endeavour to poffefs people with apprehenfions of bad defigns and severities that would be set on foot; and therefore refolved to have an act of grace immediately upon it. It was the first the queen had fent, though fhe had now reigned above feven years. The minifters, for their own fakes, took care that it fhould be very full. It was indeed fuller than any former act of grace. All treafons committed before the figning the act, which was the 19th of April, were pardoned, those only excepted that were done upon the fea. By this, they who had embarked with the pretender, were ftill at mercy. This act, according to form, was read once in both houfes, and with the ufual compliments of thanks (n). (n) Besides thefe, there were other things of lefs importance paffed this feffion, particularly thefe following: The injury done to major-general Webb, after the battle of Wynendale, having made a great noife, the leaders of the tory party readily feized this opportunity, both to do him juftice, and, at the fame time, to expofe the partiality of thofe in power. Sir Thomas Hanmer therefore made a motion, on the 13th of December, "That the "thanks of the house be given "to major-general Webb, for "the great and eminent services performed by him at the battle "of Wynendale;" which was unanimously carried in the affirmative. The major-general being then in the house, the speaker gave him, in his place, the thanks of the house; which he acknowledged in a very handsome and modeft fpeech, faying, among other things, "That he valued "the honour done him by the "commons above the greatest Thefe << rewards. 99 people of Rome, tranflated from Salluft; the other intitled, • An account of a dream at Har 'wich," On |