case the king and queen against Walcott S c in h l show p c e r with note if  the word to live to burn up be omit in the record of a attainder for high  treason yet on error assign for this cause the record can be amend although  the word be insert in the minute of the clerk of the indictment S c t salk S c  comb S c Carth S c Mod S c holt S c saint Tr S c saint Tr bee S c show p c a  writ of error be bring by John Walcott to reverse a attainder for a treason  commit by Thomas Walcott his father many error be assign this case depend  several term in court but the most material error be in the judgement itself  videlicet quod those svan extra stomach suum to furnish omit ipsoque to live  to burn up these word upon the first argument seem very essential and be  seldom or never omit in any of the precedent of judgement for treason those  who claim the estate under the king grant perceive this to be of some weight  do in another term move that Mr tanner clerk of the indictment for London may  attend which he do and produce the record of the attainder of Mr Walcott in  court and also the indictment upon which he be try and it appear that those  word be among the minute take by he and endorse on the indictment it be pray  that the omission may be rectify and the record amend by the minute modern but  this be oppose by the counsel on the other side because if these word shall be  insert there will be then two record and it can not be a question upon which  of those word this writ be bring for certain it must be upon the record enter  at length and settle by advice of counsel and not upon these short minute take  by the clerk in the fourteenth year of Charles the first roll Abr a a man be  attaint of murder before the justice of assize he bring a writ of error and  assign for cause that the record certify by the clerk of the assize be that he  be indict before the justice c on the eighteenth of march and try before the  twenty of the same month which be a error in fact because it do not appear  that there be any continuance enter between those day and though it be only a  misprision in the clerk in transcribe the record yet the court will not suffer  it to be amend it be a criminal case if there be a error in draw up the record  this court can amend it but it must be do by that court where the judgement be  give Phillips v bury show b it be true a record of the court of king bench may  be amend by another of the common plea but the reason be because of diminution  allege roll Abr roll Rep   Poph cro James c which can be to the session of  gaoldelivery the record not be amend it be thus argue for the plaintiff in the  writ of error the omission of these word be in a necessary and not in a formal  part of the judgement but in criminal case even matter of form be essential  and so hold by this court in the case of the king v Tucker ld raym d and  certain if the law take care that the indictment shall be exact in form a much  great care ought to be take in the substantial part of the judgement ever  since the reign of Henry the seven in almost all the precedent these word be  in the judgement coke Ent e there be some few case where they be omit hawk p c  ch S f but those be either draw up in baste or may be purposely leave out when  the king pardon be intend for the criminal it be likewise true that this be a  treason at the commonlaw and that the statute of Edward c prescribe no form of  a judgement in treason but yet this judgement shall not be conformable to  those at the commonlaw before the reign of Henry the seven because all those  judgement be defective and enter only in short note which be the true reason  of make the statute of Elizabeth c modern to confirm all attainder of treason  make before that time which as the statute take modern er p notice be either  defective by corruption or negligent keep the record the like may be say of  the yearbook Henry pl a which mention only some short note of the judgement in  treason it be true that of Humphrey Stafford be at length but that book and  brook bro Abr b in abridge of it be both mistake for the roll be that ante  death tripe scinda judgement in treason which be the high offence that can be  commit ought to be certain and very exact they be never yet discretionary for  that will be to give the judge a power to favour some and pronounce more  severe sentence against other which they never do or will undertake to do they  only be to give such judgement which be direct by law some variances may be  find both in my Lord coke Inst   Ent c and Staundford justice stand p c d in  judgement of treason but they differ only in immaterial circumstance such as  draw on a hurdle c but agree in all other part and where they be enter at  length these word be also insert so that these word be necessary or notRastal  Ent e if not necessary then those judgement in which they be insert be all  wrongful but if necessary then the omission of they be short of what be  require by law and by consequence the judgement be erroneous e contra those  who argue for the king hold that draw hang and quarter be the substantial part  of the judgement and the other word be only in terror and may be therefore  omit that the precedent of judgement in treason be various videlicet some  thing which have be actual do as draw on the hurdle have be omit in the  judgement in that judgement mention by my Lord coke Inst f quod secreta  membram to cut around be leave out and yet those word be necessary in the  execution of the judgement itself they be insert in the judgement in  Staundford but the prince of Wales case do not agree either with my Lord coke  or Staundford for the judgement there be only burn c but do not say in view  his it all the ancient precedent these word be leave out a Henry pl b bro Abr  see Fleta lib cap g and with great reason for it be inconsistent in nature for  a man to be live after his entrail be take out of his body Inst h modern in  car rot in the note of the clerk of the peace of Middlesex these word be omit  see car roll and roll I so they be in Owen case where the court recite the  judgement at large the statute of Edward c enact what shall be treason yet  that be declarative of the commonlaw and mention no express form of a  judgement for that offence so that notwithstanding that Act the judgement in  treason must be as it stand at the commonlaw hawk PC ch S a if so there be no  certain judgement for this crime find in any of the ancient lawbook for they  vary from the record and differ from each other if the judgement in Staundford  stand p c b be law which agree with this save only in the omission of these  word then my Lord coke Inst c be mistake by leave out that circumstance of  draw upon a hurdle from this it may be reasonable collect that he have see all  the record and upon consideration of the judgement it be his opinion that they  do and may differ in form accord to the circumstance of the case but if either  the yearbook of Henry pl or the abridgment of that case be law then Staundford  and my Lord coke be both mistake the judgement there be at length it be that  he be send back to the tower and put upon a hurdle and draw through London to  Tyburn and there bang that his heart be cut out before he be dead his head cut  off and his body divide into four part and leave to the will of the king now  this judgement differ in many thing from the judgement in my Lord coke for it  be not say quod to hang up per collum nor quod alive ad earth to strew before  nor quod those svan extra stomach to take in hand ipsoque to live to burn up  it be true the judgement in the earl of Leicester case agree with that in the  three institute but in the five year of Richard the second a man be convict  before Tresilian chief justice for conspire the death of the king and the  judgement be quod viscera de corpore his to draw out et fiery to burn up which  may be after he be dead neither have these word be in all the late precedent  but if they have it can be no objection modern er p in this case because this  judgement be at the commonlaw and therefore to argue from modern precedent be  not to the purpose modern beside the great part of these record vary from  Staundford and my Lord coke and yet they stand good in law and it can be show  where the omission of these word be ever object much less where a attainder be  ever reverse for this reason therefore if this judgement shall be erroneous  for the cause now object against it many more may be reverse for the omission  of more material circumstance curian the attainder ought to be reverse for the  omission of these word as this be the great crime so it deserve the great  punishment and it seem very agreeable to natural justice that there shall be  some proportion between they now though death be ultimum punishment yet that  be the punishment for felony which be a offence of a less nature therefore  treason shall be punish not only cum ultimo punishment send cum aggravation pn  corporal well cum pna how no one asperior smith commonwealth of England e  because it be a crime commit against the body politic in the person of the  king who be the head of the kingdom and of who preservation the law take so  great care that it punish the very intention to commit treason against he  finch law cap a but no man can be guilty of a felony without a act do when the  law of England appoint a particular judgement for a offence it be not in the  power of the judge to alter it either by any addition or diminution foster b  it be true there be no Act of parliament as have be observe which appoint a  formal judgement in high treason then it must be consider what judgement be  direct by the commonlaw in such case and it will appear that the precedent for  above two hundred year have be uniform without the omission of those word or  some of the same import these be mention in the first year of Henry the four  in the earl of huntingdon caseyearbook Henry pl c where it be that he be cut  down alive and his entrail take out of his body and burn in Humphrey Stafford  case which be rei the yearbook of Henry the seven Henry foe d quod ante death  cor scinda and brook in abridge of that case mention the judgement more full  videlicet he tell we it be quod ante death tripe scinda which comprehend all  the internal part the next attainder be of Edmund Bohun duke of Buckingham in  the thirteenth year of Henry the eight it be mention in stow chronicle stow  page f and the judgement be with these word modern in the three year of Edward  the six John bury be attaint it be mention in my Lord coke entry   Ent g with  these word in the first year of queen mary Robert Dudley be attaint it be  plead in the earl of Leicester case in the commentary Plowd h with these word  in that judgement then justice Staundford in his book of the plea of the crown  stand p c I which he write in the second year of queen Elizabeth neutrons a  judgement in high treason with word which amount to the same sense videlicet  that his entrail be burn in his view it be so likewise in the case of John  Littleton which happen in the fortythird year of queen Elizabeth it be plead  in my Lord coke entry   Ent king and so be the judgement in his three  institute Inst l and then in the case of my Lord Stafford which be in the  thirtythird year of Charles the second it be debate what judgement shall be  give against he and a motion be make that he shall have judgement to be behead  ten of the judge be consult whether if any other judgement shall be give than  what be usual in such case it will work a attainder of blood and they be all  of opinion that they can not take notice of any judgement in the king court  but what be appoint by law and thereupon the lord high steward pronounce the  ordinary judgement videlicet that his bowel shall be rip up before his face  and throw in the fire state trial a as to the objection and precedent produce  to maintain a contrary opinion they may receive this answer it be object that  this judgement be not erroneous by reason of this omission because the word  alive ad earth to strew before be of the same sense and signification but I  answer that those word be in all the precedent cite before but will not have  be sufficient if the modern er p subsequent word ipsoque to live to burn up  have be leave out the case of David prince of Wales have be object which  happen in the nine year of Edward the first it be mention by Fleta Fleta u cap  b that he omission to hang up behead dismembered et burn to be but do not say  in view his to which I answer this be a judgement in parliament which differ  from the usual judgement not only in this but in many other thing as may be  see in cotton cotton Abr Inst c modern there be twenty other judgement in  treason before the Edward c in which these word be omit but it do not appear  by the book for what species of treason those attainder be but those judgement  be not only defective in this but in many other part thereof for it be not  mention in any of they where the quarter shall be dispose c so in those  judgement in the reign of Richard the second Richard roll d and in easter term  against Henry roper there be the same defect and in the case of zouch v manor  it be defective in more particular videlicet quod secreta membram to cut  around et in fiery to put down quod those extra stomach to take in hand et in  fiery to put down et ibidem to burn up be all leave out so that these and all  other precedent which can or may be produce before the reign of Henry the four  signify but little to prove these word may be omit in treason for conspire the  death of the king because in those day they be very negligent in enter of  judgement and therefore as have be observe the statute of Elizabeth c be make  to confirm those irregular and mistake entry there may be some judgement of a  late date produce wherein these word be leave out it may be in the Iatter end  of the reign in Charles the second but they be against Popish recusant who  have neither good to forfeit and so little care be likewise take in enter of  those judgement the give of judgement against malefactor be part of the  constitution of the government therefore it be something extraordinary to  affirm at the bar that judgement in high treason be discretionary which indeed  be only a soft word for arbitrary if that doctrine shall once pass for law  then the court which give judgement may make new punishment as they shall  think more suitable to the crime they may pronounce a Jewish judgement that  the offender shall be stone to death or a Turkish judgement that he shall be  strangle or a Roman judgement that he shall be murder or a French judgement  that he shall be break on the wheel all which be contrary to the know law of  this realm this be then a essential part of the judgement settle and state by  the commonlaw of England the omission of these word make it void like the  common case of a judgement in a assumpsit for eight pound damage and twopence  cost the entry be thus modern sacred scripture therefore con be c quod the  plaintiff recupere financial loss svan per jurat c assess ad eight libras nor  S pro miss et custagiis de increment c omit the twopence for cost assess by  the jury which be not help or include by the increase that be by the act of  the court ex duty for which reason the judgement be erroneous Yelv a last this  reason be add to the authority before recite videlicet if this omission in the  most severe part of the judgement shall not be error then those judgement  which have these word can be support because a heavy punishment be by that  mean afflict on the subject than be allow by law and may for that reason be  reverse therefore it must of necessity be that those word make a necessary  part of the judgement in high treason and the omission of they make it  erroneous neither be it impossible in nature as have be object that such a  judgement shall be execute for colonel Harrison one of the regicide be cut  down alive and after his entrail be take out of his body he rise up and have  strength enough leave to strike the executioner the judgement be reverse which  judgement of reversal be afterward affirm in the house of lord modern er p