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ID |
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A63199
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The tryal of the Lord Russel
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1683
(1683)
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Wing T2227A; ESTC R219712
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60,366
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40
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Person had L. Russel I pray I may have a Copy then Sir G. Jeff. If my Lord had sent his Agents and it had been refused there had been something in it Mr. Att. Gen. Secondary Normansell was with me and I gave him my Allowance though it was not his Right L. Ch. Just That my Lord may not be surprised what think you of giving my Lord time till the Afternoon and try some of the rest in the mean time Mr. Att. Gen. Truly my Lord if I could imagine it were possible for my Lord to have any Witnesses I should not be against it L. Russel 'T is very hard Mr. Att. Gen. Do not say so the King does not deal hardly with you but I am afraid it will appear you would have dealt more hardly with the King You would not have given the King an hours notice for saving his Life Secondary Trotman I gave my Brother Normansell a Copy of the Pannel on my side and hear that my Brother Normansell hath said that he delivered a Copy Then Secondary Normansell was sent for and the Court staied for him some time Mr. Atwood My Lord a Gentleman told me he did not know whether it was sit till he had consulted the Attorny General afterwards I had a Copy as it stood then not as it is now Mr. Att. Gen. I desire my Lord may be asked who he sent for it L. Russel I did not send for it I inquired and they said it would be refused Mr. Atwood No the Gentleman had it with the fair Perriwig L. Ch. Just It was delivered to your Servant or Agent what did you do with it L. Russels Gent. Sir the Gentleman gave me out of a Book some Names Sir Geo. Jeff. What did you with them L. Russels Gent. I writ them down they were not perfect I did not know what they were L. Ch. Just Sir you were to blame not to deliver it to my Lord. L. Russels Gent. I was not bound to deliver an imperfect thing to my Lord. L. Ch. Just Sir you should have consulted your Lords advantage so as to have delivered any thing for his good L. Russels Gent. My Lord was in the Tower I was not admitted to my Lord. Mr. Att. Gen. Did you give it to my Lady L. Russels Gent. Yes those Names I had my Lady had Sir Geo. Jeff. How long ago was it Mr. Atwood Tuesday or Wednesday last L. Ch. Just To Lord Russels Servant Look you Sir when had you this L. Russel I had no Pannel I will assure you delivered me I had some Names of people that they said were usually on Juries L. Ch. Just They were the Names of the Jury L. Russel They were only the Names of them that were like to be of the Jury no other Pannel came to me L. C. J. M Lord there can be no other Copie given but the same that was delivered for your Lordship does know in this case any person accused as your Lordship is may challenge 35 and therefore there is a Return generally of 3 score or 4 score and these are returned in case of your Lordships Challenge When you have challenged so many as you please then the 12 men that stand after your challenge are to be of the Jury and therefore this is not like a Pannel made up by the Sheriff in ordinary Causes between Man and Man there they make a formal Pannel from which they cannot depart when that is once returned but here in Criminal Cases because of the Challenge they return either 60 or 80. And I presume your Lordship was attended with the Names delivered Sir Geo. Jeff. How many Names was delivered Mr. Atwood Above 100. L. Russel I had nothing of a Pannel delivered to me but some Names L. Ch. Just There was never any formal Pannel delivered to any person accused The Copy of it is in Paper always L. Russel How can I know who to challenge L. C. J. My Lord the Copie of it is in your hands your Lordship hath been deceived in this by not understanding the true Nature of these things if we were to give you a new one we could give you but such an one L. Russel I had no Paper from the true Officer L. Ch. Just No but from your Servant Mr. Att. Gen. My Lord you will have cause to complain if they are not the same men we now shall call L. Ch. Just My Lord That Paper will guide your Lordship in your Challenges L. Russel My Lord I did not mind it I put it away My Lord with your Favour I must needs insist upon having a Pannel and that you will put it off till the Afternoon I have a Witness that is not in Town My Counsel told me it was never done or very seldome Arraigning and Trying at the same time except in case of common Malefactors L. Ch. J. Mr. Attorny why may not this Trial be respited till the Afternoon Mr. Att. Gen. Pray call the Jury L. Ch. J. My Lord the Kings Counsel think it not reasonable to put off the Trial longer and we can't put it off without their Consent in this Case L. Russel My Lord 't is hard I thought the Law had allowed a pretty deal of favour to a man when he came upon his life How can I know to except against men that I never heard or saw one of them Cl. of Cr. You the Prisoner at the Bar those good men that have been now called and here appear are to pass between you and our Soveraign Lord the King upon your Life or Death if you challenge any of them you must speak as they come to the Book to be sworn before they are sworn L. Russel My Lord may not I have the use of Pen Ink and Paper Court Yes my Lord. L. Russel My Lord may I make use of any Papers I have L. Ch. Just Yes by all means L· Russel May I have some body write to help my memory Mr. Att. Gen. Yes a Servant L. Ch. Just Any of your Servants shall assist you in writing any thing you please for you L. Russel My Wife is here my Lord to do it L. Ch. Just If my Lady please to give her self the trouble Mr. Att. Gen. My Lord you may have two Persons to write for you if you please L. Russel My Lord here hath been a name read that I never saw in the list of the Jury I had I heard Sir Andrew Foster called L. Ch. Just He is not called to be of the Jury Cl. of Cr. Call John Martin He appears L. Russel Are you a Freeholder of 40 s. a year I hope none are allowed in the Pannel but those that have Freeholds L. Ch. Just There is no Pannel made in London by Freeholders we have very few Freeholders capable of being impannel'd because the Estates of the City belong much to the Nobility and Gentlemen that live abroad and to Corporations therefore in the City of London the Challenge of Freeholders is
Causes but if so be in Civil Causes there be required Freeholders and an Attaint lies if there be not 't is not reasonable to think but there should be as great regard to the Life of a man as to his Estate Next my Lord I do not know any Law that sets any kind of qualification but this of Freehold so that be the persons of what condition or nature soever supposing they be not outlawed yet these persons if this Law be not in effect may then serve and be put upon the Life of a man These are the reasons my Lord for which we apprehend they ought to be Freeholders Mr. Holt. My Lord I would desire one word of the same side We insist in this case upon these two things First we conceive by the Common Law every Jurie man ought to have a Free hold we have good Authority for it Cokes first Institutes but if that were not so I think the Statute Mr. Pollexfen hath first mentioned 2 H. 5. c. 3. to be express in this point My Lord the Statute in the Preamble does recite all the mischiefs it saies great mischiefs ensued by Juries that were made up of persons that had not Estates sufficient in what as well in the case of the Death of a man as in the case of Freehold between Party and Party the Statute reciting this mischief does in express words provide two Remedies for the same in these cases first on the Life or Death of a man the Jury or Inquest to be taken shall have 40 s. per ann and so between party and party 40 Marks so that this being the Trial of the Death of a man it is interpreted by Stamford 162. a. that is in all cases where a man is arraigned for his Life that is within the express words of the Statute Besides this Exposition that hath been put upon the Statute my Lord it does seem that the Judgment of several Parliaments hath been accordingly in several times and ages My Lord to instance in one Statute that hath not been mentioned and that is the 33 of H. 8. c. 23. that does give the King Power to award Commissions of Oyer and Terminer for Trials in any County of England and that saies the Statute in such cases no Challenge to the Shire or Hundred shall be allowed that is you shall not challenge the Jury in such a case because they have not Free-hold are not of the County where the Treason was committed but that upon the Trial Challenge for lack of Free-hold of 40 s. a year shall be allowed though it alters the manner of trying Treason by the Common Law so that my Lord here is the Opinion of that very Parliament that though it took away the usual method of Trials yet it sayes the Prisoners Challenge for want of Free-hold Now indeed that Statute is repealed but I mention it as to the Proviso that it shews the Judgment of that Parliament at that time My Lord those other Statutes that have been made to regulate Cities and Towns Corporate why were they made 33 H 8. That no Free-hold should be allowed that shews that 2 H. 5. did extend to these Cases But my Lord these Statutes that shew the Judgment of the Parliament sufficient to our purpose do not extend to this Case the Statute goes only to Murders and Felonies but not to Treasons And we are in the Case of a Penal Statute and concerning the Life and Death of a Man which ought to be taken strictly it ousts the Prisoner of a Benefit and by parity of Reason If Treason be not mentioned your Lordship can't by Equity extend it to it when it only mentions inferiour Offences and takes away the benefit in lower Cases Like the Case of the Bishop of Winchester where the Statute set down Dean and Chapters and other Ecclesiastical Persons it shall not extend to Bishops because it begins with Persons of an inferiour Nature No more shall Murder and Felony extend to Treason But further the Statute only concerns Freemen for there is an express Proviso n the Case for in case any Knight or Esquire come to be Tried in the Place he has his Benefit as before My Lord we are in this Case as in the Case not mentioned in the Statute we are not a Freeman of London My Lord there is another thing 7 H. 7. c. 5. Why there was not only requisite at the Common Law that the Jurors had sufficient Freehold but it was required it should be in the Hundred and Freehold in the Wards in the Citie is the same with Freehold in the Hundreds in the Country So that the want of Freehold in the Hundred was a good cause of Challenge So that I think it will hardly be denied but that a Jurie that passes upon the life of a Man ought by the Law by the Statute and by the Judgment of the Parliament to have Freehold Where is there then any Statute whatsoever that makes a difference in this Case between London and other Counties We are in the case of Treason we have taken our Exceptions and on behalf of the Prisoner at the Bar we pray the Challenge may be allowed Mr. Ward My Lord I shall be short because Mr. Pollexfen has observed these things so particularly already I observe the Statute of H. 5. is a general Statute and extends throughout the Realm Now when the thing is thus general there is no room to except particulars And in this case 't is within the very words of the Law if the words be so generally penned in the negative then we conceive there is no construction to be made upon them unless some subsequent Parliament alter it Coke's Institutes 157. where 't is said in Treason as well as any thing else upon H. 5. there shall be Freeholds If they have provided in Civil and other Criminal Causes it were strange that this should be Casus omissius but there is no construction against a negative Law For the Parliament taking care of the City of London as the subsequent Statutes say that he that hath 100 Marks shall pass in Civil Causes and then it says in Murders and Felonies and that only confined to the Freemen of the place does sufficiently explain the Law where 't is not altered by any subsequent Act therefore I desire the Challenge may be admitted Mr. Att. Gen. My Lord these Gentlemens Foundation is not good for they prove it not by any Books that at Common Law it was requisite for a Juryman to have Freehold My Lord I deny their Foundation there is no such Law and at this day in all Criminal Cases where the Statute does not direct it as for Riots and other Informations for Misdemeanour there is no Law restrains them and they may be tried by any men they have no exception against Then 2 H. 5 says None shall be admitted to pass upon the death of a Man I take it to extend to all Capital matters though