Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	according_a	law_n	person_n	1,451	5	4.8874	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A63227	The tryals of Thomas Walcot, William Hone, William Lord Russell, John Rous & William Blagg for high-treason for conspiring the death of the King, and raising a rebellion in this kingdom at the Sessions-House in the Old-Baily, London, on a commission of oyer and terminer held there for the city of London and county of Middlesex, on Thursday, Friday and Saturday, July 12, 13 and 14, 1683.	Walcot, Thomas, d. 1683.; Hone, William, d. 1683.; Russell, William, Lord, 1639-1683.; Rouse, John, d. 1683.; Blague, William.; England and Wales. Court of Oyer and Terminer and Gaol Delivery (London and Middlesex).	1683 (1683)	Wing T2265; ESTC R21861	139,903	84

Statutes that have been made subsequent make it plain that it does so extend But before I speak to them There is ● Inst. fo 157. that takes notice of this Statute and speaks it generally that the Freehold ought to be in the same County nor do I remember to have seen any Book that distinguishes between Counties at large and Cities and Counties But Statutes that have been made concerning Cities and Counties are a plain declaration that this is meant of Juries both in Cities and Counties I will mention the Statute 7 H. 7. c. 5. The substance of the Statute is this It takes notice that there were Challenges in London for that they had not 40 s. per Ann. and that this Challenge was to be made in the Wards which are the same with Hundreds in the Counties so this Statute is made to take away the Challenge of 40 s. Freehold This Statute of 7 H. 7. that takes away the Challenge in London for not having 40 s. is with submission a strong Evidence and Authority that it was before that time a good Challenge for otherwise to what end should they make a Statute to take away the Challenge unless it were before a good cause of Challenge In the next place 4 H. 8. c. 3. that extends to Civil Causes in London and says That in London Jurors shall but provides only for London in Civil Causes be admitted in Civil Causes that have goods to the value of 100 Marks My Lord if that first Statute or the Common Law had not extended to require Freeholds in London then there would have been no need of this Statute that was made to inable men to be Jurors that had goods to the value of 100 Marks So that we take it to be good Authority that by the Common Law Freehold was required in all Civil Causes Then there is another Statute 23 H. 8. 13. and that will be a strong evidence to shew what the Law is For the Statute says in Cities and Burroughs in Tryals of Murder and Felony if a Freeman of the City of London is to be tried the Freemen shall be upon the Jury tho' they have not Freehold and then there is a Proviso that for Knights and Esquires that are out of the Burrough tho' they are arraigned in the Burrough that extends not to them tho' in cases of Murder and Felony As for this Statute we take this sense of it First that it does not extend to Treasons for when it only names Murders and Felonies that makes no alteration as to Treason therefore that stands as before But if there be any alteration that extends only to Freemen and Burgesses that are to be tried but not to Knights and Esquires so that if we were in a case of Felony and Murder I think we are not concerned in this Statute for we are no Freeman nor Burgesse but we are an Esquire and therefore ought to be tryed by Freeholders So that for the Law we relye upon these Statutes that we have looked upon as strong evidence that there ought to be in the Tryal of the life of a man especially for Treason Freeholders First if it were in Civil Causes if this qualification be not in Jury-men then an Attaint would lye the Penalty in an Attaint is that their Houses should be pulled down c. This is provided by the Law to the intent the Jury may be careful to go according to their evidence 'T is true no Attaint does lie in in Criminal 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 Jury-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 says great mischiefs ensued by Iuries 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 Free-hold 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 Tryal 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 severall 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 Tryals in any County of England And that says 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 Tryal 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 Tryals yet it saves 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 D●an 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 in the Case for in case any Knight or Esquire come to be Tryed 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 Free-hold but it was required it should be in the Hundred and Free-hold in the Wards in the City is the same with Free-hold 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 Jury that passes upon the life of a Man ought by the Law by the Statute and by the Judgment of the Parliament to have Free-hold 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 omissus 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 tryed 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 it is pretty odly expressed for when a Man is accused of other Felonies and High Treasons 't is of the death of a man unless he have Lands or Tenements of the yearly value of 40 s. But I will take it as these Gentlemen do at this Time it not being so at Common-Law nor in other Criminal Cases but what are provided for by the Statute As to other matters of Felony and Murder no doubt there these Challenges are to be taken upon the Statute but not for Treason because the Statute of Queen Mary does expresly repeal that Statute and no Statute since takes away the force of that of Queen Mary that all Tryals for Treason shall be as at the common-Common-Law and according to this the constant practice in all Cities not only London where Persons have been Indicted for High Treason hath been There was never any such thing pretended Most of these Gentlemen have Freeholds but we would not have this point lost to the City of London so that the Statute they speak of and the Interpretations of the several other Statutes too are to no purpose for we say by common-Common-Law all Causes might be Tryed by any Persons against whom there was not sufficient Cause of Challenge and the common-Common-Law is by that Statute restored in this point Mr. Sol. Gen. My Lord I have little to say Mr. Attorney hath given a true Answer to it the Foundation does fail them It was not necessary at Common-Law for a Jury-man to have Freehold but then they must shew you my Lord it is altered and made necessary The Statute of H. 5. does not seem to extend to Treason but if it did 't is now out of doors by that of Queen Mary whereby all Tryals of Treason are reduced to the Common-Law This is that we answer they fail in their Foundation they do not make it out that it was necessary for a Jury-man at Common-Law to have Freehold Sir Geo. Jeff. My Lord I confess they have cited several Acts of Parliament and upon them lay their Foundation and draw Inferences from them But they will find that in several Acts of Parliament which they have quoted there is a particular regard had for the preservation of the constant Usage and Custom for Tryals within the City of London That notwithstanding several Acts of Parliament have in other places ascertained the value of Jurors yet they had still an Eye that the City of London should continue in its Usages I think it will be necessary to put you in mind of the Case of the City of Worcester It would be very hard say they because an Attaint does not lye in Criminal matters if you intend by that to have People of Ability 't is well known that the ablest People in the City of London have scarce any Freehold in it for that most of the Inheritances of the City of London remain in the Nobility and in Corporations Now in the Case of my Lord Russel he hath a peremptory Challenge to 35 and I think I may adventure to say there can scarce be 35 more that can call themselves Freeholders in London consider the Consequence then Treason should be committed in the City of London and there would not be enow in the City of London to try it In the Case of the Quo-Warranto brought against the City of Worcester to know by what Warrant several took upon them the Offices of Aldermen the Gentlemen at the Bar objected that it was reasonable that

no Freehold should be determined but by Freeholders But the Judges of the Kings-Bench the Court being full for the necessity of the thing lest there might not be sufficient Freeholders in the City having sent one of the Judges of that Court to your Lorships of the Common-Pleas for that Reason did agree the Challenge was not good I know these Gentlemen will please to remember the Case so that I say as in one Case we ought to be tender of the Life of the Prisoner so we ought surely to be tender of the Life of the King otherwise it may so happen that the Kings Life may be incompassed and Treason commited in the City and there would be no way in the World to Try it therefore we pray for the King the Challenge may be over-ruled M. North. My Lord it is the practice to make the Venire facias without mentioning Freehold for it does not Command that they return so many men that have Freehold but probos legales homines de visineto therefore at the Common-Law those were good Inquests to Try any man that were not Excommunicated nor under any Out-Law 'T is true there are Statutes that say all Jury-men shall have Freehold but we say these Statutes do not extend to the City of London but that it is governed by its own Customs and we say it is the Custom that Citizens of Ability have been returned that have no Freehold But granting what we do not but by way of supposal my Lord it does not extend to this Case because Tryals are to be according to the use at Common-Law by the Statute of Queen Mary which does set them at large again and that is the reason the Prisoner in this Case hath his Challenge for 35 and is in other Cases restrained to 20 so that we say these men of Ability are good and there is no Statute affects them L.C.J. Mr. Pollexfen do you find any Judgment that in Cases of Treason by Common-Law they might except for want of Freehold Have you any resolution in the Case Mr. Pollexf I think there are Books that say at Common-Law there must be Freehold L. Ch. Just. What in Treason Mr. Pollexfen No my Lord. L. Ch. Just. Unless you speak of Treason you do not speak ad Idem For I do take it that in Cases of Treason or in Cases of Felony at the Common Law they had no liberty to except to Jurors that they had not any Freehold but that at the Common Law any good and Lawful men might pass Then take as introductive of a new Law the Statute of H. 5. I am of the mind that this Statute of H. 5. peradventure may extend to Treasons and Felonies but when the Statute of Queen Mary comes and says all Tryals shall be by such Evidence and in such manner as by common Law they ought to have been I do not see how it is possible to make an Objection afterwards of this Nature For admitting this Act of Parliament of H. 5. had altered the Common Law and given a Challenge why then when the Statute of Queen Mary comes and sets all Tryals at large in the Case of Treasons then certainly the Challenge is gone again and I doubt you will not find one Exception in this case ever since that Statute concerning the Jurys Freehold in Cases of Treason but it hath generally passed otherwise and there hath not been any ever excepted I doubt it will be a very hard thing to maintain such a Challenge now Here are my Lords and Brothers will be pleased to deliver their Opinions It is a business of great consequence not only for this Noble Person at the Bar but for all other Persons L. Ch. Baron I agree with your Lordship perfectly but if the Counsel had laid a right Foundation that it had been so at Common Law there had been much said But I take it at Common Law there was no Challenge for want of Freehold and I am induced to think so for otherwise what needed the Statute of H. 5. been made But whether it extend to Treason or no I am not so clear And if it did it 's wiped off again by that of Queen Mary which reduces all to the Common Law Tryal Mr. Just. Wyndham I am of the same Opinion I conceive at Common Law lack of Free-hold no good cause of Challenge 'T is true that Challenge is given in some cases by Act of Parliament yet I doubt whether it extend to a thing of so high nature as Treason for other Statutes have not mentioned any thing of Treason But suppose 2. H. 5. did extend to it yet it is very plain the Statute of 1. and 2. Queen Mary hath set all at large again They are to be good and Lawful Men and I do not find that any thing of the lawfulness must be the Freehold And therefore I conceive this is no just Exception in this case Mr. Just. Iones My Lord I am of the same Opinion I am of Opinion that the Common Law did not require Freehold to be a good cause of Challenge in the case of Treason and the rather Because at the Common Law a man that was indicted of High Treason had liberty to Challenge peremptorily to the Number of 35. Persons My Lord if the Common Law be altered by the Statute of H. 5. yet I take it that the Statute of 1. and 2. Ph. and M. does restore the Common Law in this particular point For whereas there was a Statue of H. 8. to restrain the Prisoner to the Number of 20 for his Challenge now the Statute restoring it to Common Law the Prisoner hath his Challenge to 35 as he had before that Statute of H. 8. So I take it the King shall have his priviledge also to try a Prisoner for Treason by Persons that have not Freehold Mr. Just. Charlton I am of the same Opinion And truly the rather because no President hath been offered of any such Challenge before and many men have suffered and sure if it could have been many would have made use of it Mr. Just. Levins I am of Opinion 't is not to be allowed I do not think my self driven to the necessity to determine now whether Freehold was a good Challenge at Common Law in point of Treason I think the Statute of Ph. and M. hath restored the Tryals to the Common Law What was the Common Law The Common Law is the Custom of England which is other in Cities than in Countries and the Custom of London is part of that Common Law So tho it be a cause of Challenge in a County at large yet it is not a cause of Challenge in Cities where Freeholders are not to be found Now that which satifies me is That this Custom is restored by the Statute of Ph. and M. Because never such a Challenge hath been And it is known when 20 were tryed for Treason together in this very place and one of them a

very kindly and I writ a Letter to him to let him know how I had sof●ned my Lord and that it was my desire he should speak with my Lord at Oxon. My Lord Feversham gave me a very kind Account when he came again but he told me L. C. Just. Pray apply your self to the matter you are called for Mr. Howard This it may be is to the matter when you have heard me for I think I know where I am and what I am to say L. C. Just. We must desire you not to go on thus Mr. Howard I must satisfie the World as well as I can as to my Self and my Family and pray do not interrupt me After this my Lord there never passed a Day for almost L. C. Just. Pray speak to this matter Mr. Howard Sir I am coming to it L. C. Just. Pray Sir he directed by the Court. Mr. Howard Then now Sir I will come to the Thing Upon this ground I had of my Lords kindness I applied my self to my Lord in this present Issue on the breaking out of this Plot. My Lord I thought certainly as hear as I could discern him for he took it upon his Honor his Faith and as much as if he had taken an Oath before a Magistrate that he knew nothing of any Man concerned in this Business and particularly of my Lord Russell whom he vindicated with all the Honour in the World My Lord it is true was afraid of his own Person and as a Friend and a Relation I Concealed him in my House and I did not think it was for such a Conspiracy but I thought he was unwilling to go to the Tower for nothing again So that if my Lord Howard has the same Soul on Monday that he had a Sunday this can't be true that he Swears against my Lord Russell This I say upon my Reputation and Honour and something I could say more he added he thought my Lord Russell did not only unjustly Suffer but he took God and Men to Witnesse He thought him the worthyest Person in the World I am very sorry to hear any Man of my Name should be Guilty of these Things L. Russell Call Dr. Burnet Pray Dr. Burnet did you hear any thing from my Lord Howard since the Plot was discovered concerning me Dr. Burnet My Lord Howard was with me the Night after the Plot broke out and he did then as he had done before with Hands and Eyes lifted up to Heaven say he knew nothing of any Plot nor believed any and treated it with great Scorn and Contempt L. Howard My Lord may I speak for my self Sir G. Jeff. No no my Lord we don't call you L. C. Just. Will you please to have any other Witnesses called L. Russel There are some Persons of Quality that I have been very well accquainted and conversed with I desire to know of them if there was any thing in my former Carriage to make them think me like to be Guilty of this My Lord Cavendish L. Cavendish I had the Honour to be acquainted with my Lord Russell a long time I always thought him a Man of great Honour and too Prudent and Wary a Man to be concerned in so Vile and Desperate a design as this and from which he would receive so little advantage I can say nothing more but that Two or Three days since the Discovery of this Plot upon discourse about Col. Rumsey my Lord Russell did express something as if he had a very ill Opinion of the Man and therefore it is not likely he would intrust him with such a Secret L. Russell Dr. Tillotson He appears L. C. Just. VVhat Questions would you ask him my Lord L. Russell He and I happened to be very conversant To know whether he did ever find any thing tending to this in my discourse L. C. Just. My Lord calls you as to his Life and Conversation and Reputation Dr Tillotson My Lord I have been many Years last past acquainted with my Lord Russell I always Judged him a Person of great Vertue and Integrity and by all the Conversation and Discourse I ever had with him I always took him to be a Person very far from any such wicked Design he stands Charged with L. Russell Dr. Burnet If you please to give some account of my Conversation Dr. Burnet My Lord I have had the Honour to be known to my Lord Russell several Years and he hath declared himself with much Confidence to me and he always upon all occasions expressed himself against all Risings and when he spoke of some People that would provose to it he expressed himself so determined against that matter I think no Man could do more L. C. Just. VVill your Lordship call any other VVitnesses L. Russell Dr. Cox Dr. Thomas Cox stood up Dr. Cox My Lord I did not expect to have been spoken to upon this Account Having been very much with my Lord of late that is for a Month or Six Weeks before this Plot came out I have had occasion to speak with my Lord in private about these Publick Matters But I have always found that my Lord was against all kind of Risings and thought it the greatest Folly and Madness till things should come in a Parliamentary way I have had occasion often to speak with my Lord Russell in private and having my self been against all kind of Risings or any thing that tended to the disorder of the Publick I have heard him profess Solemnly he thought it would Ruin the best Cause in the World to take any of these irregular ways for the preserving of it and particularly my Lord hath expressed himself occasionally of these two Persons my Lord Howard and Col. Rumsey One of them Col. Rumsey I saw once at my Lords House and he offered to speak a little privatly But my Lord told me he knew him but a little I told him he was a Valiant Man and acted his Part Valiantly in Portugal He say'd he knew him little and that he had nothing to do with him but in my Lord Shaftsburys business He say'd for my Lord Howard he was a Man of excellent Parts of Luxuriant Parts but he had the luck not to be much trusted by any Party And I never heard him say one word of Indecency or Immodestly towards the King L. Russell I would pray the Duke of Somerset to speak what he knows of me D. of Som. I have known my Lord Russell for about Two Years and have had much Conversation with him and been often in his Company and never heard any thing from him but what was very Honourable Loyal and Just. L. C. Just. My Lord does say that he has known my Lord Russell for about Two Years and hath had much Conversation with him and been much in his Company and never heard any thing from him but what was Honourable and Loyal and Just in his Life Foreman of the Jury The Gent. of the Jury desire to ask my Lord