Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	case_n	civil_a	law_n	1,412	5	4.9298	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A25874	The arraignment, tryal, and condemnation of Peter Cooke, Gent. for high-treason, in endeavouring to procure forces from France to invade this kingdom, and conspiring to levy war in this realm for assisting and abetting the said invasion, in order to the deposing of His sacred Majesty, King William, and restoring the late King Who upon full evidence was found guilty at the Sessions-House in the Old-Baily, on Wednesday the 13th of May, 1696. And received sentence the same day. With the learned arguments both of the King's and prisoner's council upon the new Act of Parliament for regulating tryals in cases of treason. Perused by the Lord Chief Justice Treby, and the council present at the tryal.	Cooke, Peter, d. 1696.; England and Wales. Court of Quarter Sessions of the Peace (Middlesex)	1696 (1696)	Wing A3757; ESTC R3080	87,497	74

There he is Cook I challenge him Cl. of Arr. William Walker Cook Sir have you said any such thing that you believe me guilty Mr. Walker No Sir Mr. Baker My Lord he is asking of the Jury-Man the Question Mr. J. Rokeby That 's a Fact the Prisoner should prove upon him Mr. Att. Gen. My Lord he must not ask the Jury that Question Whether they have declared before that they will find him guilty that is to make them guilty of a Misdemeanor Mr. Serj. Darnall Is it any Misdemeanor for me to say I think or believe such a Man is guilty Mr. Att. Gen. If he be summon'd to be of a Jury and declare his Opinion before hand it is a Misdemeanor Mr. Serj. Darnall But suppose it be before he was summon'd Mr. Att. Gen. If you make any such Objection you must prove it and not out of the Jurymans own Mouth Mr. Serj. Darnall I think any Man my Lord that comes to serve upon the Jury may be ask'd any Question that does not make him guilty of any Offence or Crime or liable to any Punishment Now if any of these Gentlemen that are return'd upon this Pannel before the Summons have declared their Opinion that the Prisoner is guilty or ought to suffer with Submission the Prisoner may ask such a Question Whether he have said so yea or no Mr. J. Powell He cannot upon a Voyer Dire be ask'd any such Question Mr. J. Rokeby It is not denyed to be a material Objection but it must be made out by Proof L. C. J. Treby You put it too large Brother Daruall you may ask upon a Voyer Dire whether he have any Interest in the Cause nor shall we deny you liberty to ask whether he be fitly qualified according to Law by having a Freehold of sufficient Value but that you can ask a Juror or a Witness every Question that will not make him criminous that 's too large Men have been ask'd whether they have been convicted and pardon'd for Felony or whether they have been whipt for Petty Lacinary but they have not been obliged to answer for tho their Answer in the affirmative will not make them criminal or subject them to Punishment yet they are Matters of Infamy and if it be an infamous thing that 's enough to preserve a Man from being bound to answer A pardon'd Man is not guilty his Crime is purged but merely for the Reproach of it it shall not be put upon him to answer a Question whereon he will be forced to forswear or disgrace himself So Persons have been excused from answering whether they have been committed to Bridewell as Pilferers or Vagrants or to Newgate for Clipping or Coining c. Yet to be suspected or committed is only a Misfortune and Shame no Crime The like has been observed in other Cases of odious and infamous matters which were not Crimes indictable But to keep to our Case 'T is true a Juror may be challenged being an Alien or being a Villain but where the Matter apparently carries Crime or Shame it should be proved the Outlawry should be proved and so should the being a Villain Yet that is no Crime tho it be an Ignominy Mr. Serj. Darnall But my Lord I take this to be no manner of Infamy at all there is nothing of Crime nor nothing of Reproach but only a declaring of a Mans Opinion L. C. J. Treby Truly I think otherwise I take it to be at least a scandalous Misbehaviour and deservedly ill spoken of for any Man to pre-judge especially in such a heinous matter I think it is a very shameful discovery of a Man's Weakness and Rashness if not Malice to judge before he hears the Cause and before the party that is accused could be tryed But it seems by what the Prisoner says that he would ask all the Jurors whether they have not said that he was guilty or that they would find him guilty or that he should be hanged or the like Which presuming him innocent is to ask whether they have not defamed and slandered him in the highest degree and to force them to discover that they have a mortal Hatred to him and come with a malicious resolution to convict him Which admitting they are not punishable by our Law yet are things so detestably wicked and so scandalous as are not fit to be required to be disclosed by and against themselves Mr. Serj. Darnall Pray my Lord what is more common than for a Man to say before he is summoned to be upon a Jury when he hears a Fact reported concerning such a one to say I believe he is guilty or I am of opinion he is and I am sure he will be hanged and yet there is no crime in this L. C. J. Treby Truly Bro. Darnall I know not how you may approve of such a Man but I 'll assure you I do not I take the Question not to be concerning a Man's discoursing suppositively as if upon hearing News or a Report of clear Evidence a Man should say Supposing this to be true such a Man is guilty and I should find him so if I were of his Jury This might not be sufficient to set aside a Juror for this has been a general Discourse among the Subjects upon occasion of this Conspiracy and it imports that if Evidence should not be true and clear he would acquit him And so he is as he should be indifferent But if a Man qualified for a Juror affirm Positively that such a Prisoner is guilty and that he will find him so whatever Evidence or Proof be given or made to the contrary I think that may be a Misdemeanour punishable as an owning and encouraging of Falshood Perjury and Injustice and a contempt and scandal to the Justice of the Kingdom Tho I hope and believe that no man hath so demeaned himself Mr. J. Powell In a Civil Case it would be a good Cause of Challenge If a Man have given his Opinion about the right one way or other may you not upon a Voire dire ask him whether he hath given his Opinion one way or other I believe it may be ask in a Civil Cause because he may have been a Refferree but if you make it criminal it cannot be askt because a Man is not bound to accuse himself now the Difference lies in the nature of the Cause it is not Criminal in a Civil Case for a Man to say he was an Arbitrator in such a Case and upon what appeared before him he was of such an Opinion Mr. Att. Gen. But my Lord it is a different Case to give an opinion about the Right between Party and Party where a Man has been an Arbitrator and so in the Nature of a Judge and where a Man is to go upon a Jury in the Case of Life and Death and before the Evidence given he declares his Opinion without hearing the Cause Sir B. Shower My Lord we know several of the Tryals have

Court Mr. Cook that it will not hold as a cause of challenge that he was of Sir John Friena's Jury therefore those are all reckoned among the peremptory challenges and you can challenge but Two more in all L. C. J. Treby Not without cause but as many more as you can have good cause against Cl. of Arr. John Reynolds Cook I except not against him He was sworn Cl. of Arr. Joseph Brookbank Cook I have nothing to say to him He was sworn Cl. of Arr. Adam Bellamy Mr. Bellaney My Lord I am no Freeholder L. C. J. Treby Why what Estate have you Mr. Baker He has Estate enough I know for value Mr. Bellamy I have only a Lease L. C. J. Treby A Lease for years Mr. Bellamy Yes my Lord. Cl. of Arr. David Grill. Mr. Grill. I am no Freeholder my Lord. Cl. of Arr. William Rawlins Cook I accept of him He was sworn Cl. of Arr. Samuel Roycroft Cook Are you a Freeholder Sir Mr. Roycroft Yes Sir Cook I challenge him Cl. of Arr. Thomas Parker Cook How many have I to challenge do you say Cl. of Arr. But one Sir What say you to Mr. Parker Cook I do not except against him He was sworn Cl. of Arr. James Robinson Cook I have nothing to say to him He was sworn Cl. of Arr. Joseph Morewood Cook I challenge him Mr. Baker You have challenged all your number now Cl. of Arr. My Lord we have gone through the Pannel we must now call the Defaulters again Thomas Clark Mr. Clark Here. Sir B. Shower Was he here when he was called over Mr. Arr. Gen. That 's nothing he is here now Sir B. Shower But if there be a Default of the Jury and the King's Council have challenged any one they ought to shew their Cause therefore we desire that they may shew their Cause why they challeng'd Mr. Simmons L. C. J. Treby The King has power to Challenge without shewing Cause till the Pannel be gone through but if there be a Default of Jurors when the King challenges the King's Council must shew cause Sir B. Shower Here is a Default of Jurors my Lord. L. C. J. Trebr No body is Recorded absolutely a Defaulter if he comes in time enough to be sworn Cl. of Arr. Swear Mr. Clark Which was done L. C. J. Treby When there is an apparent default of Jurors then they must shew their Cause but here his appearance it seems was Recorded and so he was no Defaulter and you might have challenged him for Cause still Cl. of Arr. James Dry. Mr. Dry. My Name is not James Serj. Darnall Then you cannot swear him Here are three mistaken in their Names L. C. J. Treby That is in the Copy in your Brief Brother it may be Mr. Serj. Darnall No my Lord the Officers admit it Mr. Att. Gen. My Lord we desire those Gentlemen that say they are no Freeholders may be sworn to that matter Which was accordingly done And several of them that had staid did deny the having of any Freehold upon Oath and some were gone away L. C. J. Treby Pray take care to estreat the Issues and return greater Issues the next time Mr. J. Rokeby Truly the Court must put some great penalty upon them for trifling with the Court in respect of their Duty that they owe to the King and Country in regard of their Estates Cl. of Arr. Pray let the Officers be called who summoned this Jury Mr. Sheriff Which was done And they examined concerning their summoning those who made Default and the Issues of those who were recorded as Defaulters were ordered to be Estreated Then the Court not being able to proceed for want of a Jury they ordered another Pannel to be ready against Wednesday next to which time at Seven in the Morning the Court was by Proclamation adjourned Die Mercurii Decimo Tertio Maii Anno Dom. 1696. The Court being met according to the Adjournment the Pannel was called over and the Defaulters Recorded and several excused for Absence upon Sickness and being out of Town before the Summons Then Mr. Serjeant Darnall desired before the Jury was called to move something against the Pannel And made his Motion thus Mr. Serj. Darnall IF your Lordship pleases I have somewhat to offer to you before you go upon this new Pannel and I confess I think it is my Duty to the Court as well as to the Prisoner to state the Case as it is and submit it upon the reason of Law and the Authorities that I shall offer Whether the Proceedings upon this new Pannel will not be erroneous My Lord the Question is Whether as this Case is the Prisoner has had a Copy of the Pannel of his Jury by which he is to be tried according as the late Law requires he had a Copy of the former Pannel and upon that Pannel Nine were sworn and their Names all entred upon Record and made Parcel of the Record Thereof now the Question is Whether he can be tried upon a new Pannel We are in a Case that rarely happens and in a Case of Life and Death I know your Lordship will be careful not to vary from the ancient Practice or to make a new President because of the Consequences It must be agreed in this Case That the old Pannel upon which the Prisoner took his Challenges and of which Nine was sworn is Parcel of the Record Now my Lord to add a new Pannel upon which twelve more shall be sworn and all this appear upon Record and the Prisoner tried upon the last Pannel will not this be Error I offer this before the Jury be called and sworn because we desire to be fairly tried and we design to rest upon the Fact in this Case If it should appear That he is tried upon a Pannel that is unduly made and return'd that will be of evil Consequence one way or other And can this be duly made if another appear upon Record before it And can any body say it is quasht or abated Or can it be so My Lord in Stamford's Pleas of the Crown p. 155. it is said If any of the Pannel dye after the Return and before their Appearance so that there are not enough left to make the Jury yet the Pannel shall not be quasht nor is it ●bated but it is Cause to grant a Tales And certainly my Lord it is a stronger Case when by reason of Challenges which the Law gives the Prisoner liberty to make there are not enough left that there shall not be a new Pannel but that a Tales shall be granted for if a new Pannel might be made it cannot appear who were challenged or who were admitted And if your Lordship pleases to consider the Intention of the Law in giving the Prisoner power to Challenge is that he may have an indifferent Jury but that would be prevented by such a practice as this for when it has been discovered upon the old Pannel whom the Prisoner chose and

been printed and the Names of several Persons mentioned and upon reading of the Tryals or conversing about them Men are apt to give their Opinions one way or other Mr. Serj. Darnall It is only an Objection in case he has done it Mr. J. Rookeby But Brother how can you ask him the Question Mr. Serj. Darnal If the Court are of opinion that it is such a Crime that it cannot be askt as tending to make a Man accuse himself of an infamous Crime then we submit it to you and I confess we must not ask it but we cannot apprehend that there is either Crime or Infamy in it tho we think it is an Objection and a good Cause of Challenge Mr. B. Powys I think tho it be not such a Crime as infamous upon which a Man is not to be credited for that is Infamy in the Eye of the Law whereby a Man is prejudiced in his Credit yet however it is a shameful thing for a Man to give his Judgment before he hath heard the Evidence and therefore I think you ought not to ask him it to make him accuse himself if it be an opprobrious matter upon him Mr. Serj. Darnall Truly my Lord I always took it to be the Rule if the the thing asked to the Person returned be not criminal nor infamous the Party that is askt ought to answer to it L. C. J. Treby I would fain know if you should ask any of the Jury-men this Question whether he be guilty of all the Crimes that are pardoned by the last Act of Grace he be bound to answer it Mr. Serj. Darnall Undoubtedly we cannot ask any such Question no not to any one of the things therein mentioned L. C. J. Treby But yet you will force him to discover a Crime if it be one that is unpardoned Mr. J. Powell Certainly you go too far Brother for no Man is obliged to charge himself with what is Criminal but whether this be Criminal to say I believe such a one will be hanged is of another Consideration Mr. J. Rookeby But I think it must be proved upon him if any Objection be made Sir B. Shower My Lord it will be no easy thing to bring Witnesses to prove this matter and therefore we would have it from his own Mouth Mr. J. Rookeby And it is a very hard matter for a Man to be put upon proving every Discourse that he has had about the publick Affairs of the time Mr. Recorder The Reason of your Exception is that he has declared his opinion before hand that the Party would be hanged or would suffer that 's a Reproach and a Reflection upon a Wise man so to do and if they can prove it upon him let them do it but whether you should ask him such a Question Whether he be a Fool or a Knave for the giving an opinion one way or other that 's the Question before us Mr. Serj. Darnall My Lord we do not offer it to the Court as an Objection that he is not a Wise man Mr. Att. Gen. But what a Man does utter imprudently may occasion a Prejudice against him and therefore ought to be proved and not he to prove it himself L. C. J. Treby Especially being a Freeholder of London and taking notice of what is done in London and if he does take notice of the Fact and does previously give his Opinion of a matter which he may be called upon a Jury to try this is an Indiscretion and a Reproach to him and I think a Misdemeanour Mr. Serj. Darnall My Lord I acknowledge it is ill done of him that is indiscreetly and not wisely and we would have Discreet and Wise men upon our Jury Mr. Cowper My Lord Mr. Serj. Darnall will make it so little a thing at last that it will amount to no cause of Challenge if it were even proved against him which we insist it ought to be it being their Objection and the Party not being bound to prove it against himself but truly we think there is more in it than so because it is an unjust prejudging of a Man before he is tryed and heard and if so it is a thing that he ought not to accuse himself of and therefore we oppose the asking any such Question Mr. Serj. Darnall Our Objection is not because it is an Offence to declare a Man's opinion upon a Fact reported but because it shews he has a settled opinion against the Person of his Guilt and so he is not so equal a Man to try him L. C. J. Treby And is that like a Honest man and a Freeholder of London who ought to be indifferent to come with a settled opinion against a Man when he is to be one of his Jury Mr. Serj. Darnall Well my Lord we have been heard and submit it to the Judgment of the Court. L. C. J. Treby Truly I think it reflects both Dishonesty and Dishonour upon him and therefore these Questions ought not to be askt The Question is not whether a Man if ever such a Man there were that hath so resolved and declared shall be sworn No he is not fit to serve upon a Jury But the Question is How this shall be discovered by his own Oath or by other Proof I think it ought to be made appear by other Proof if true A Man attainted of Felony Forgery False Verdict or Perjury ought not to serve on a Jury yet he shall not be examined concerning the same on a Voire dire And if there be in Court a Copy of such Judgment carefully examined and kept by himself he shall not be forced to Answer whether it be a true Copy tho his Answer could not subject him to any further Penalty Mr. Serj. Darnall My Lord I hope no Gentleman of the Jury has done it L. C. J. Treby I hope no Freeholder of London is so indiscreet or so unjust But if any Man in this Pannel have any particular Displeasure to the Prisoner or be unindifferent or have declared himself so I do admonish and desire him to discover so much in general for it is not fit nor for the honour of the King's Justice that such a Man should serve on the Jury Mr. Serj. Darnall We hope so too We hope that all that are returned upon the Jury are discreet and impartial Men. Cl. of Arr. Well Sir what say you to this Gentleman Mr. Walker Cook I challenge you Sir Cl. of Arr. Nathanael Long. Sir B. Shower My Lord we think he may ask if they have a Freehold or no because the Law requires that Qualification and the Prisoner not being able to prove the Nagative it puts the Proof of the Affirmative upon the Person himself Mr. Att. Gen. What does Sir Bartholomew mean would he have the Jury-men bring their Evidences with them to prove their Free-hold L. C. J. Treby No sure Mr. Attorney but to ask the Question was allowed him the last time and we will not deny him the