Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	act_n	king_n	parliament_n	3,554	5	6.8839	4	true

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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

their Arts in managing the Jury And first there was a great many persons for Jurors to which Mr. Attorney had no Stomach some challenged for Cause for that they were no Fee holders as John Kent Giles Shute Nathaniel Grantham and several others and the Challenge allowed to be a good Challenge by all the Court for tho' the Chief Justice spoke only yet all the Court assent to what one Judge says if they do not shew their dissent I do not take notice of this as complaining of it for I think it is good Cause of Challenge in Treason but then I cannot but wonder at the Assurance of the same King's Counsel who denied it to be a good Cause of Challenge in the Lord Russel's Tryal It is true that was a Tryal in the City but that matter had no consideration in the Judgment for after the Lord Russel's Counsel had been heard all the Judges delivered their Opinions That at Common Law No Freehold was no Challenge in Treason and that the 1st and 2d Philip and Mary had restored the Tryal in Treason to be what it was at Common Law of which number of Judges Sir Francis Pemberton and Sir Thomas Jones were two nay Sir Francis Pemberton asked Mr. Pollexfen Whether he found any Resolution at Common Law that no freehold was a Challenge in Treason And that Judgment is afterwards cited in Collonel Sidneys Tryal fol. 63. as the Opinion of all the Judges of England That no Freehold was no Challenge to a Juror in Treason at Common Law and Col. Sydney's Tryal was in a County at large But if it was not a Challenge at Common Law I would know how it came to be a Challenge in Fitzharris his Case There was no intervening Act of Parliment to alter the Law between the two Tryals that I know of Another art used was to Challenge for the King wihout Cause where no Cause could be shewn such Jurors as they did not like The Prisoner was troubled at this and appeals to the Court whether the Attorney General was not obliged to shew his Cause of Challenge but is answered by the Court that he need not till all the Pannel was gone through or the rest of the Jurors challenged which is true but had the Prisoner been advised to challenge the rest of the Jury as he would have been if he had had Counsel the Attorney must have waved his Challenge or put off the Tryal And since he was not allowed Counsel why should not the Court according to their Duty as they have said it is have advised him so to do I am sure in Count Coningsmark's Tryal when Sir Francis Winington challenged a Juror without Cause for the King the Court presently asked the Cause and such Answers was made by the Prosecutor's Counsel as was made to Fitzharris whereupon the Court told the Count that the way to make them shew their Cause of Challenge was to challenge all the rest of the Jury and thereupon the Challenge was waved They were different Practices tending to different Ends and accordingly it succeeded Fitzharris was Convicted and the Count Acquitted Upon the Tryal the Evidence was this Fitzharris was the 21st day of February 1681. with Everard gave him Heads by word of mouth to write the Pamphlet in the Indictment mentioned to scandalize the King raise Rebellion alienate the Hearts of the People and set them together by the Ears the Libel was to be presented to the French Ambassador's Confessor and he was to present it to the French Embassador and it was to set these people together by the Ears and keep them clashing and mistrusting one another whilst the French should gain Flanders and then they would make no bones of England For which Libel Everard was to have 40 Guineys and a monthly Pension which should be some 1000 of pounds Everard was to be brought into the Cabal where several Protestants and Parliament men came to give an account to the Embassador how things were transacted Everard asked what would be the use of the Libels Fitzharris said we shall disperse them we know how they were to be drawn in the Name of the Nonconformists and to be put and fathered upon them This was the sum of Everard's Evidence Mr. Smith proved Fitzharris his giving instructions to Everard and Sir William Waller and others proved the Libel and the Discourse about gaining Flanders and England other Witnesses were examined to prove Fitzharris's hand for the Prisoner Dr. Oates said Everard told him the Libel was to be printed and to be sent about by the Penny-Post to the Protesting Lords and Leading Men of the House of Commons who were to be taken up as soon as they had it and searched and to have it found about them He said the Court had an hand in it and the King had given Fitzharris Money for it already and would give him more if it had success Mr. Cornish said when he came from Newgate to the King to give him an account in what disposition he found the Prisoner to make a discovery the King said he had had him often before him and his Secretaries and could make nothing of what he did discover that he had for near three Months acquainted the King he was in pursuit of a Plot of a matter that related much to his Person and Government and that in as much as he made protestations of Zeal for his Service he did countenance and give him some Mony that the King said the came to him three Months before he appeared at the Council Table Collonel Mansel said that Sir William Waller gave him an account of the business in the presence of Mr. Hunt and several others and said that when he had acquainted the King with it the King said he had done him the greatest piece of service that ever he had done him in his life and gave him a great many thanks But he was no sooner gone but two Gentlemen told him the King said he had broken all his Measures and the King would have him taken off one way or another and said that the Design was against the Protestant Lords and Protestant Party Mr. Hunt confirmed the same thing and added that he said the design was to contrive those Papers into the hands of the people and make them Evidences of Rebellion and appealed to Sir William Waller who was present whether what he said was not true Mr. Bethel said Everard before he had seen Bethell or heard him speak a word put in an Information of Treason against him at the instigation of Bethel's mortal Enemy which Information was so groundless that tho' it was three years before yet he never heard a word of it till the Friday before Mrs. Wall said Fitzharris had 250 l. 200 l. or 150 l. for bringing the Lord Howard of Escrick she added that Fitzharris was looked upon to be a Roman Catholick and upon that account it was said to be dangerous to let him go near

argument against such a Return that no president of it can be found 't is enough that no judgment can be produced against it and the reason of both may be that the Case never happened before that is to say that never any Person was so malitious before as to sue out an homine replegiaendo against a Master for a Servant sent by agreement beyond Sea and Returns must be varyed according to the Case perhaps no President can be found of a Return on that Writ that the Person sought for is dead yet all Persons will agree it is a good Return it is so in a Replevin of Cattle and even that Example falsifies the Doctrin of the Court that there is but two Returns on that Writ allowable by Law it is not an argument for disallowing the Return that the Person sent beyond Sea was a Child not capable of making such a contract though I believe if the Matter were look't into he was of Age so to do for nothing of that doth or can appear in the Writ or Return It stands therefore simply upon this whether the Sheriff may on an homine replegiando return that the Person supposed to be in custody being of full Age was by mutual agreement sent beyond Sea by the Person in whose oustody by the Writ he is supposed to be which I think is far from a doubt but notwithstanding all these hardships on Juries it was seen to be plainly impossible to procure any Bills of Indictment for High Treason much less any Persons to be convicted on the like Evidence except in London where are some of the best as well as the worst Men in the Nation and even there it was not to be done as long as the Juries were sensible and honest Men which would be as long as the Election of Sheriffs was in the Citizens and to the Honour of the City it was seen that they chose honest Men to be their Sheriffs and those chosen when they saw the Publick Safety depend on honest Officers though at other times they had rather pay a Fine than undergo the trouble and charges of that Office yet at that time no Man legally chosen refused to stand tho' at that time they were reproached and punished for it and if Mr. Box. refused it was because he would not joyn with North who was imposed on the City for which reason it was resolved to take from the City the right of choosing Sheriffs but by what means it was not presently resolved on That the City might forfeit their right of Electing there was no great doubt as if the Sheriffs were dead and new ones were not chosen in a convenient time so that there was a defect of Justice or the like they would have forfeited their right but nothing of that kind could be laid to their charge therefore a new unheard of Matter was thought on and set a Foot which was to make the City forfeit their being a Corporation and being annihilated the Grants made to them by the Crown as the right of Electing Sheriffs was would revert to the Crown again A quo Warranto was therefore brought against the City in Hillary Term 1681. to shew by what Warrant they pretended to be a Corporation and to have the Priviledges mentioned in the Writ to which the City pleaded and set forth their right and the King replyed and set forth several Matters done by them contrary to the duty of a Corporation upon which there was a Demurrer of which Judgment was not given till Trinity Term 1683. I will say nothing of the right of the Proceeding it having been largely and learnedly argued for the City but if the Matter were so clear a Case as the Kings Council and Court would have it to be how came it to pass that in Henry the Eight his time when the King was so earnestly bent to dissolve the religious Corporations in which the inclination of the Nation joyned with him the doing it by quo Warrantoes was not thought of it was very plain that those pretended Religious did not observe the Rules nor perform the Ends for which they were incorporated and certainly their Misdemeanours against the intent of their being incorporated were better Causes of forfeiture than was the Cities Petitioning for a Parliament c. yet that King took other methods he had formal Conveyances of their Lands from most of those Corporations and formal Surrenders of their Corporations signed by every individual of the Corporations and those afterwards confirmed by Act of Parliament and sure the Late King had as much right to bring a Quo Warranto against Maudling Colledge for refusing contrary to their duty to admit the President the King nominated if the King had a right to nominate the President as some Judges asserted he had as King Charles the Second had against the City and it was once in debate whether the Proceeding against that Colledge should be by quo Warranto or before the Ecclesiastical Commissioners the last was resolved on not as the more legal or effectual but as more expeditious In the one the Proceedings being de die in dieam in the other from Term to Term this only I will observe that when the Judgment against the City was given which was of the greatest concern to the Nation ever contested in any Court of Westminster Hall it was done by two Judges only and no reason of that Judgment rendred whereof Wythens who was one I think heard but one Argument in the Case it is true they asaid Raymond when alive was of the same Opinion and said Saunders who was then past his Sences was of the same Opinion tho' I was told by one who was persent when the two Justices came to ask his Opinion in the matter he had then only Sence enough to reproach them for troubling him about the Matter when they were sensible he had lost his memory and to say truth the delivering the Sence of an absent Judge tho' it hath been sometimes practiced is not allowable for sometimes they deliver another Opinion than what the absent Judge is of Judge Withens did so in several Cases when he delivered the Opinion of Sir Edward Herbert which Sir Edward Herbert afterwards in open Court disowned Judge Holloway served Judge Powell the same trick if the last said true The long depending of the quo Warranto had Alarum'd all the Nation who yet were quiet hoping that Judgment would be given for the City as some of the Judges and of the Kings Councel had given out it would but the contrary as resolved on and therefore the Nation at the time of the giving the Judgment must be amused with somewhat else and with nothing so proper as a Plot but there was difficulty in that also for if the pretended Plotters should be acquitted it would make the matter worse and nothing would secure that but imposing what Sheriffs they pleased on the City and accordingly North and Rich was

or Statute-Law for it And I can with better assurance say than any person who hath practised these things that no Law in England warrants them and if not then consider the unreasonableness of these Methods There is yet one Objection to be answered which being a very great hardship upon the Prisoner gives somes colour or imposing other hardships upon him to wit That a Witness cannot be examined for the Prisoner on his Oath in a Tryal upon an Indictment of a Capital Matter It is not because the Matter is Capital for then no Witness ought to be examined upon Oath for the Appellee in a capital matter Neither is it because it is against the King for then no Witness ought to be examined on Oath for the Defendant in a Tryal upon an Indictment of any Criminal Matter yet in Indictments of all Criminal Matters not Capital 't is permitted to the Prisoner To say Truth never any reason was yet given for it or I think can be if you believe my Lord Coke 3d Instit fol 79 of which Opinion my Lord Hales is in his Pleas of the Crown that that Practice is not warranted by any Act of Parliament Book Case or antient Record and that there is not so much as scintilla Juris for is for he says when the fault is denied truth cannot appear without Witnesses As for what is pretended that it is swearing against the King and therefore it is not allowed of 't is a Cant Reason which put into sensible English a man will be ashamed to own And as slight is the Reason That it being a matter of so high moment as a man's Life the Prisoner will be the more violent and eager and the Witnesses may be more prevailed upon to swear falsly more than they would be in a matter of less moment The weakness of that reason hath been in part shewn and shall be further shown I think none will deny but the end of all Tryals in any matters Capital Criminal or Civil is the discovery of Truth Next 't is as necessary for the Prisoner to have Witnesses to prove his Innocence as it is for the King to have Witnesses to convict him of the Crime which Proposition is agreed by the Practice it being alwaies permitted that the Prisoner shall produce what Witnesses he can but they are not to be upon Oath In the last place since truth cannot appear but by the confession of the party or testimony of Witnesses of both sides it is necessary to put all the engagement as well on the Witnesses of part of the Prisoner as of part of the King to say the Truth the whole Truth and nothing but the Truth as the Nature of the matter will bear and as yet no better means hath been found out than an Oath Which if denyed to the Prisoner's Witnesses either he is allowed too great an advantage to acquit himself or he is not allowed enough If all that his Witnesses say without Oath shall have equal credit as if they swore it then he hath too much advantage for men may be found which will say falsly what they will not swear as is plain enough How often doth a Defendant say in a Plea at Law that a Deed is not his which yet in an Answer in Chancery he will confess to be his If his Witnesses shall not have Credit because not sworn to what purpose then is it permitted him to produce them If they shall have some Credit but not so much as if sworn I ask how much credit shall be given Is it two three or ten Witnesses without Oath shall be equivalent to One upon Oath And besides that that Question never was or can be answered what credit shall be given them There is an unreasanable disadvantage put on the Prisoner that a Witness produced of his part of equal credit with the Witness against him shall not have equal credit given him because he is not on his Oath whereas he is ready to deliver the same things on his Oath if the Court would administer it to him and yet that difference was taken in Fitzharris his Case as to the Credibility of Everard and Oates the first being upon his Oath the last not But I do not offer this as any Reflection upon the late Proceedings but as a reason why matters in Capital Proceedings ought not to have been carried further than heretofore they were against the Prisoner by example of so unreasonable a practice But to return to the Tryal of Colledge which came on in the Afternoon when the Attorney insisted that the King's Witnesses ought not to be examined out of the hearing of each other in which he was over-ruled but the Rule not observed nor was it material for the King's Counsel having the Prisoners Writings and by them observed how he intended to make the Witnesses against him contradict themselves they did not produce such Witnesses as were not instructed to concur in the Evidence of the same matter but produced only such as were instructed to give Evidence of distinct matters and therefore Dugdale was first produced who gave Evidence of villifying words spoke of the King at several times at Oxford and London by the Prisoner to himself alone that he shewed the Witness several scandalous Libels and Pictures and said he was the Author of them that he had a silk Armor a brace of Horse Pistols and a pocket Pistol and Sword that he said He had several stout men to stand by him and that he would make use of them for the defence of the Protestant Religion he said the King's Party was but an handful to his Party Stevens swore the finding of the Original of the Raree Show in the Prisoners Chambers John Smith swore his speaking scandalous words of the King and of his having Armor and that when he shewed it the Witness he said These are things that will destroy the pitiful Guards of Rowley that he said he expected the King would seize some of the Members of Parliament at Oxford which if done he would be one should seize the King that he said Fitz-Gerald at Oxon kad made his Nose bleed but before long he hoped to see a great deal more blood shed for the Cause that if any nay if Rowley himself came to disarm the City he would be the Death of him Haynes swore he said Unless the King would let the Parliament sit at Oxon they would seise him and bring him to the Block and that he said The City had One thousand five hundred Barrels of Powder and One hundred thousand men ready at an hours Warning Turbervile swore he said at Oxford That he wished the King would begin if he did not they would begin with him and seize him and said he came to Oxford for that prupose Mr. Masters swore That in discourse betwen him and the Prisoner he justified the Proceedings of the Parliament in 1640. at which the Witness wondred and said how could he justifie that

Parliament that raised the Rebellion and cut off the King's head To which the Prisoner replied That that Parliament had done nothing but what they had just cause for and that the Parliament which sate last at Westminster was of the same Opinion That he called the Prisoner Collonel in mockery who replyed Mock not I may be one in a little time Sir William Jennings swore as to the Fighting with Fitz-Gerald and the words about his bleeding For the Prisoner Hickman said he heard Haynes swear God damn him he cared not what he swore nor whom he swore against for it was his Trade to get Money by swearing Mrs. Oliver said Haynes writ a Letter in her Father's name unknown to her Father Mrs. Hall said she heard Haynes own that he was employed to put a Plot upon the Dissenting Protestants Mrs. Richards said she heard him say the same thing Whaley said Haynes stole a Silver Tankerd from him Lun said Haynes said the Parliament were a company of Rogues for not giving the King money but he would help the King to money enough out of the Phanaticks Estates Oates said Turbervile said a little before the Witnesses were sworn at the Old-baily that he was not a Witness against the Prisoner nor could give any Evidence against him And after he came from Oxford he sad he had been sworn before the Grand Jury against the Prisoner and said the Protestant Citizens had deserted him and God damn him he would not starve That John Smith said God damn him he would have Colledge's Blood. That he heard Dugdale say that he knew nothing against any Protestant in England and being taxt that he had gone against his Conscience in his Evidence he said it was long of Collonel Warcup for he could get no money else that he had given out that he had been poisoned whereas in truth it was a Clap. Blake said that Smith told him Haynes his Discovery was a Sham Plot a Meal-tub-Plot Bolron said Smith would have had him give Evidence against Sir John Brooks that Sir John should say there would be cutting of Throats at Oxford and that the Parliament-men went provided with four five six or ten men a-piece and that there was a Consult at Grantham wherein it was resolved that it was better to seize the King than to let him go whereas he knew of no such thing that he would have Balron to be a Witness against Colledge and told him what he should say lest they should disagree in their Evidence that he heard Haynes say he knew nothing of a Popish or Presbyterian Plot but if he were to be an Evidence he cared not what he swore but would swear any thing to get Money Mowbray said Smith tempted him to be a Witness against Colledge and was inquisitive to know what discourse passed between him the Lord Fairfax Sir John Hewly and Mr. Stern on the Road and said that if the Parliament would not give the King Money and stood on the Bill of Exclusion that was pretence enough to swear a design to seize the King at Oxford Everard said Smith told him he knew of no Presbyterian or Protestant Plot and said Justice Warcup would have perswaded him to swear against some Lords a Presbyterian Plot but he knew of none he said Haynes told him it was necessity and hard pay drove him to speak any thing against the Protestants and being questioned how his Testimony agreed with what he formerly said answered he would not say much to excuse himself his Wife was reduced to that Necessity that she begged at Rouse's door and meer necessity drove him to it and self preservation for the was brought in Guilty when he was taken up and was obliged to do something to save his Life and that it was a Judgment upon the King or People the Irish-mens swearing against them was justly fallen on them for outing the Irish of their Estates Parkhurst and Symons said they had seen at Colledge his House his Arms about the latter end of November Tates said Dugdale bespoke a Pistol of him for Colledge which he promised to give Colledge And upon Discourse sometimes after the Oxford Parliament Tates said Colledge was a very honest man and stood up for the good of the King and Government Tes said Dugdale I believe he does and I know nothing to the coutrary Deacon and Whitaker said they knew Colledge was bred a Protostant and went to Church and never to a Conventicle that they knew of and thought him an honest man. Neal Rimington Janner and Norris to the same purpose and Norris that Smith in company where was Speech that the Parliament-mens being agreed to go to Oxford said he hoped they would be well provided to go if they did go El. Hunt said a Porter in her Master's absence brought the Prints taken in Colledge's house eight weeks before and said Dugdale told her after her Master was in Prison he did not believe Colledge had any more hand in any Conspiracy against his Majesty than the Child unborn and he had as lieve have given an hundred pounds he had never spoke what he had and that he had nothing to say against her Master which would touch his Life Having summed up all the material part of the Evidence in the order it was given for or against the Prisoner let us see whether upon the whole an honest understanding Jury could with a good Conscience have given the Verdict the then Jury did or whether an upright Court could with a good Conscience have declared they were well satisfied in the Verdict given as all the four Judges in that case did though the Chief Justice North only spoke the works And though it is too late to Advantage the deceased yet it will do right to the Memory of the man to whose dexterous management on his Tryal many now alive owe the continuance of their lives to this Day it was not their Innocence protected the Lord Fairfax Sir John Brooks and many others before mentioined and many not named in the Tryal but Colledge's baffling that Crew of Witnesses and so plainly detecting their falsehood that the Kings Counsel never durst play them at any other person but the Earl of Shaftsbury as shall be shewn and failing there they were paid off and vanisht and never did more harm visibly what under-hand Practices they might be hereafter guilty of I know not Who could believe any one of those four Witnesses Dugdale Haynes Turbervile and Smith if it were for no other reason than the improbability of the thing that as Colledge said was it probable he should trust things of that nature with Papists who had broke their Faith with their own Party who could lay greater Obligations of secresie upon them than he was able to do That he a Protestant should trust people who had been employed to cut Protestants Throats And neither of them ever discovered any of the things they swore till after the Oxford Parliament though