Selected quad for the lemma: book_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
book_n	good_a	read_v	write_v	2,874	5	5.1956	4	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A43106	Remarks upon the tryals of Edward Fitzharris, Stephen Colledge, Count Coningsmark, the Lord Russel, Collonel Sidney, Henry Cornish, and Charles Bateman as also on the Earl of Shaftsbury's grand jury, Wilmore's Homine replegiando, and the award of execution against Sir Thomas Armstrong / by John Hawles.	Hawles, John, Sir, 1645-1716.	1689 (1689)	Wing H1188; ESTC R10368	100,698	108

Writing contained which was that the Power was in the people c. being in its Nature no other nor urged by the Kings Council to any other intent than to corrupt the Subjects minds could not be Evidence of such matter unless proved he had Writ and Peblished it whereof the last was not pretended to be proved That it was necessary to be exprest in the Indictment and and proved at the Tryal appears by the Resolution of all the Judges of England in Hugh Pines Case reported in Cro. Car. 89. at a time when Prerogative run pretty high wherein besides the resolution that no Words charging the King with any personal Vice is Treason There is the Case of one Peacham in the 33d of Henry the 8th cited who was indicted for Treason for Treasonable Passages in a Sermon never preached nor intended to be preached but found in Writing in his Study he was found guilty but never executed for many Judges at that time were of Opinion it was not Treason as the Book says which I think according to the Evidence here given was the express Case of Col. Sidney admitting he writ the Book produced and that the Passages in it were Treasonable And as this Indictment was an Original in the particular before mentioned so it was a second of an Inuendo Indictment of Treason Fitz-Harris was the first the Prosecution against Car as I remember was an Information and Judgment Arrested after a Verdict because it was by inuendo of which no Precedent could be produced and although in Actions for words it was permitted yet in Criminal Matters being Penal it was resolved it ought not to be permitted and certainly much less in Treason and as this Indictment was an Original in one part and a Second in another the Evidence on it was an Original in another part which was proving the Book produced to be Coll. Sydney's Writing because the hand was like what some of the Witnesses had seen him writ an Evidence never permitted in a Criminal Matter before The Case of the Lady Carre was truly cited by Coll. Sydney against whom there was an Indictment or Information of Perjury in which it was resolved that comparision of hands was no Evidence in any Criminal Prosecution and it must be owned that at that time besides Keeling and Twisden there then sate in that Court Sir Wadham Windam whom all will own to have been the second best Judge which sate in Westminster-Hall since the Kings Resturation and if it be not Evidence in a Prosecution of Misdemeanour much less in Treason as Coll. Sydney said which inference besides the reason of the thing is backt by the Authority of my Lord Coke But admitting Coll. Sydney writ that Book and Published it yet if it were not done with a design to stir the Subjects up into a Rebellion but was writ and Published only disputandi gratia as the immport of the Book shews plainly it was it was no more Treason then the discourse between Blagrave and Mate Lee about taking the Tower was and suppose it was writ with that design yet it not appearing when it was writ how could a Jury upon their Oaths say it was done with a design to raise Rebellion against King Charles the Second when for ought appeared it was writ before he was King or thought of it might for ought appeared be writ in Kings Charles the First his time or Cromwells time and design'd against either of them or any Foreign Prince and therefore could not be Treason against King Charles the Second The Evidence was an Original in this Particular also it was the first time that ever a Particular Expression in a Writing was ever given in Evidence against a Man in Treason without reading the whole Writing and for a very good reason given by the Jury in Fitz Harris his Case which was that there might be something in the Writing not expressed in the Indictment which may explain the Clauses in the Indictment so that they may bear another construction and in that Tryal it was agreed the whole Writing ought to be read and was read accordingly and it was the duty of the Court to have ordered it whether the Prisoner or Jury had desired it or not as they are upon their Oaths to do right but in Coll. Sydney's Case when pressed by him it was denied only some Particular Passages he might have read if he would which he did not accept of upon a very good reason with he gave which was that he knew not the Passages of the Book or at least he did not remember them and therefore could not call for them 't is true that Practice in Civil Matters is allowed to save time where the mischeif is not very great because of a Passage in a Deed or Writing Material for either Party is omitted in reading the Matter may be brought about again but in Criminal much less in Capital Prosecutions they cannot be unless a way can be found to bring a Man to Life again Almost all the Circumstances of this Tryal are Originals the summing up of the Evidence against him was Barbarous being Invectives and no Consequences it was shid he was not only Guilty of the Practices he was accused of but he could not have been otherwise because his Principles lead him to it and it might with as good reason have been urged that he not only was became but was Born a Traitor the last Matter remarkable in the Tryal was that of an Overt Act of which the Court said it was resolved by all the Judges of England that if I buy a Knife of J. S. to kill the King and one Witness prove I bought a Knife and another prove I bought it for that purpose it is two witnesses of an Overt Act within the Statute of Ed. 6th It were very fit to know who the Judges were which gave that resolution if it were but for the Authority of the Case for I doubt the reason of it will convined no Man they might as well have resolved that eating or drinking or the most ordinary Acts of a Mans Life is an Overt Act of High Treason The Law hath taken that care for the Evidence of High Treason which it hath not done in any other Case that it must be proved by an Overt Act proved by two witnesses one would think at first sight of the Statute that there should be two witnesses to the same Fact but that hath been adjudged otherwise but still it was resolved there must be two Winesses but if this Resolution be Law it is plain there needs but one 't is true if a Man does an Act for vvhich he can give no reason as Placing a Mine of Powder in a Place the King usually passeth over or planting a peice of Cannon to shoot at a place the King usually passeth by he cannot give a credible reason why he did it and another swears the purpose of the thing it is two good Witnesses within the

and altered it from what they at first designed it the King's Councel might have had a new Bill found but peradventure they could not prevail with that Grand Jury to have found a new Bill they remembred they had ill luck with the first Bill at London that I believe was the true reason but because I 'll do the Court no injury in imputing that to the cause of the adjournment which was not 't is true in the Printed Trial 't is pretended they adjourned in order to Dine yet those that knew that the adjournment was by the direction of the King's Councel and overheard their whispering with the Chief Justice which is both an undecent and an unjust thing and is neither better nor worse than a Plaintiff or Defendants whispering a Judge while his Case is before him Trying and I know that he Judges had Breakfasted but a little before and had no great stomach to their Dinners and therefore believe that that before assigned and not what pretended was the true cause They might better have put off their Dinner to their Supper than their Supper to their Breakfast as they did the Trial lasting till early next Morning But because all irregularities of Court and Councel in all these matters are shifted off and excused by two Sayings not understood generally the first whereof is That the Court is to act for the King and the Councel are for the King and no person must come near the Prisoner to the prejudice of the King as in Fitz-Harris his Case was often said a Witness was permitted to go on in an impertinent story on a Transaction between him and my Lord Shaftsbury in my Lord Russell's Trial of which the Prisoner complained that it was designed to incense the Jury and though the Chief Justice declared it was not Evidence yet he a great while afterward went on in a like manner nay the Councel in summing up the Evidence repeated the same matter which was permitted because it was for the King and yet when the Earl of Anglesey began to say what the lady Chaworth told him he was snub'd and cut short and Mr. Edward Howard was served the same sauce because it was against the King It is fit therefore to know what is meant in Law by those words No body doubts what the Courts or King's Councel of late days meant but in Law the are not so meant for though many things are said to be the King 's as the Protector of his people and more concerned in their welfare than any private persons yet they are so in preservation and not in property or interest The Highways are the King 's in preservation for the Passage of his Subjects and whoever obstructs them wrongs the King as he is hurt when his Subjects are hurt but in property the Soil generally belongs to private Persons the King is hurt when his Subjects are opprest by force because he has engaged to defend them and therefore the Offender is punished by the King to deterr the Offenders and others from committing the same offences which is for the benefit of the publick but as a Man may be opprest by open force so he may be opprest by private insinuations and false accusations and the King has engaged to defend his Subjects from such not that it is possible to prevent them but by consequence that is by punishing such as shall be found guilty of such Crimes which heretofore were punished with the highest Arbitrary Punishments we read of The consequence is That it is for the King to punish Offenders to acquit the false accused and to punish the false accusers that is to say In all Cases to do right according to Law and Truth Surely Queen Elizabeth gave the best explanation of the words when the Lord Burleigh seeing Sir Edward Coke the then Attorney General coming towards her he said Madam here is your Attorney General Qui pro domina Regina sequitur Nay says she I 'll have the words altered for it should be Qui pro Domina veritate sequitur For the King and for Truth then are sunonymous words for the King against the Truth is a contradiction and the Judges and King's Councel having taken an Oath to advise the King according to the best of their cunning which is according to Law and Truth if therefore the King's Councel use means and the Court permit them so to do to suppress Truth or to disable the Prisoner from making his innocence Appear as in Colledge his Case was done if they urge things as Evidence of the Crime whereof the Prisoner is accused which by Law are not Evidence as in this Case in the Lord Russell's Case Collonel Sydney's Case Mr. Hambden's Case Mr. Cornish's Case and in many more they did and has in some of them shall be hereafter shewn If they insinuate any fact as Evidence which is not proved as in my Lord Russell's Trial that my Lord of Essex killed himself if they wrest as Evidence of the fact which in sence is not so as in Collonel Sydney's Case the writing his Book for for any thing appeared it was writ before King Charles the Second came to the Crown they are Councel against the King being against Truth as well as against the Prisoner I think no Man will deny the truth of this proposition That it is as much the King's interest to have an innocent accused of Treason acquitted as it is to have a nocent accused of Treason convicted If that be true then let any one shew me a reason if he can for there is no Law against it why he may not have the same liberty of clearing his innocence as the prosecutor hath of convicting him I mean by free and private access of all persons to the Prisoner as is used in all other capital matters if it be said he may get some to corrupt the witnesses against him or subborn others for him the same may be said in all other matters but in Treason that is not a likely matter for generally the Prisoner never knows what he is accused of and consequently cannot know his Accuser nor know how to provide a counter-Evidence till he comes to be Arraigned and then it is too late for generally he is presently Tried after his Arraignment as was the Case of Colledge and my Lord Russel and Mr. Cornish and persons committed for Treason are so much the less able to corrupt or suborn Witnesses than any other Criminals that they generally according to the late practice have no Accuser brought face to face to them on their Commitment as all other Criminals have who always are committed upon an Accusation made upon Oath in their Hearing and their Defence heard before their Mittimus made and whatever the pretence may be yet in experience it is found more perjuries in prosecutions for Treason by the Accusers committed than by the Witnesses for the Prisoner One reason is a Witness in Treason is more difficultly convicted than

a good Challenge and with him Sir John Fortescue seems to concur in his Exposition on the Statute of Henry the 5th he says if the Debts or Damages were under forty Marks the Jury-man shall have Land to a competent Value according to the Discretion of the Justices My Lord Coke saith in such case any Free-hold sufficeth now how can that be true if it were not necessary at Common Law to have some Free-hold for the Statute makes no Provision for Debt or Damages under forty Marks It must therefore be by Common Law that some Free-hold was necessary and that any Free-hold shall suffice And surely if in Civil Matters it was necessary for a Juror to have a Free-hold much more in captial Matters and mostly in Treason It is very plain that at Common Law no man was thought to be a sufficient man but a Free-holder and though now and for some time past the Value of Trade is equal to that of Land yet heretofore it was not so and by what was heretofore the Common Law is to be known The matter of Trade was heretofore so inconsiderable and the Traders themselves for that reason so vile that it was a Disparagement for a Free-holder to marry with a Trades-man as is to be seen by the Statute of Wharton and therefore meer Trades-men and not Free-holders were not to be trusted with the Concern of a Tryal in a civil Matter and much less in a Capital and least of all in a Tryal of High-Treason The Chief Justice Pemberton says that the reason of Free-holders was that no slight Persons should be put upon a Jury where the Life of a man or his Estate is in question it is plain therefore the Concern of the thing to be tryed is the measure of the substance of the Jury-man if that be true the Tryal in Treason is of the highest concern How then is it true as some of the Judges concluded that though Free-hold migh be requisite in some Cases at Common Law yet in Treason certainly not it is indeed a Paradox to me And the peremptory Challenge of thirty five allowed the Prisoner is no Reason against the Challenge of no Free-hold for that is only a Priviledge allowed the Prisoner in Favorem Vitae and it might as well be argued that no Challenge at all to the petty Jury shall be allowed the Prisoner because he had a Grand Jury past upon him before which is also in Favorem Vitae that no man at the Kings Suit shall be so much as questioned for his Life till above the number of twelve substantial men have on their Oaths said they think the Accusation true and after that he is allowed to challenge peremptorily thirty five and with cause without number to affirm therefore that no Free-hold is not a cause of Challenge because he may challenge peremptorily thirty five is a non sequitur and though Non-usage that is to say that this Challenge was never taken in Treason was then used as an Argument yet it is the weakest of Arguments which is to be found in Littleton though even that Fact was not true for the Challenge was taken and allowed before unless you will distinguish and say that in that case it was taken by the King and therefore good and in this by the Prisoner and therefore bad I 'm sure that Difference cannot be warranted either by Authority or Reason and what though Cook and the other Regicides and other Persons did not take that Challenge is it and Argument that they could not or that they thought they could not perhaps they had forgotten to do it as much as the Judges in this case had forgotten their Resolution in Fitz-Harris's Case or perhaps they could not take it their Jury being Free-holders or perhaps it was to no purpose they being tryed in Middlesex where a Jury of Free-holders would quickly be found Nor is it an Argument that no Case of this Challenge at Common Law is to be found in the Books for since the Statute of Henry the 5th to the time of Queen Marry it could never be a Case and from that time to this it could never be a Case in Felony and the Law being so very plain that if the Fact were with the Prisoner it was always allowed if against the Prisoner it was disallowed not as not good in point of Law but as not true in point of Fact therefore the Challenge perphaps was not taken notice of in the Books which only reports Difficulties It is true of late and it is but of late Practice the whole Transactions of a Tryal is published for the benefit of the Publisher rather than for the common Good and that indeed was the Motive of publishing Fitz-Harris's Tryal signed by Fra. Pemberton and of Colledges's Tryal signed by Fra. North and of my Lord Russel's signed by William Prichard Mayor and Col. Sidnie's Tryal signed by George Jefferies and Mr. Cornish's Tryal signed by Thomas Jones And that is the reason why since that Statute we find no Case of such a Challenge in capital Matters and before that Statute the Year-Books go but a little way It is enough that there was no Resolution that it was not a good Challenge for it will be of the Kings side to shew why that should not be a good Challenge in Treason which was in most if not in all other Cases It is pretty to observe what steps were made in over-ruling this Challenge some were of Opinion that it was no Chanllenge in any Case at Common Law so said the Attorny and Sollicitor General the Chief Baron Justice Windham and Baron Street The Chief Justice though it no Challenge at Common Law in Treason or Felony only but that the Statute of Henry the 5th made it a Challenge in Treason and Felonly but whether the Statute of Henry the 5th made it a Challenge in Treason the Chief Baron and Justice Windham doubted Justice Jones thought it no Challenge at Common Law in Treason Justice Levins would not determine whether it was a good Challenge in any Case at Common Law but he and Baron Street were clearly of Opinion it was not a good Challenge in London The Chief Justice thought it a Business of great consequence not only for the Prisoner but for all other Persons Baron Street thought the Judges had been very nice in the Matter which in the Phrase of the Law is giving themselves a great deal of trouble in a matter very clear or of no moment But though they differ'd in their Reasons yet all agreed in this and in this only that tryed he should be and that presently Then as for the Custom of the City of London to try without Free-holders how did it appear to the Judges that there was any such Custom Did they ever read of any such Custom in the City of London Nay were not the Statutes which were cited where no Free-hold was made no Challenge in London in particular Cases as so