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
THE TRYAL OF THE LORD RUSSEL July 13. 1683. My Lord Russel was set to the Bar within the Bar. Clerk of the Crown William Russel hold up thy hand which he did Then this Indictment was read which is as followeth THe Jurors of our Sovereign Lord the King upon their Oaths present That William Russel late of London Esq together with other false Traitors as a false Traitor against the most Illustrious and Excellent Prince our Soveraign Lord Charles the Second by the Grace of God of England Scotland France and Ireland King his natural Lord not having the Fear of God in his Heart nor weighing the Duty of his Allegiance but being moved and seduced by the Instigation of the Devil and the true Duty and natural Obedience which true and faithful Subjects of our Sovereign Lord the King towards him our said Lord the King do bear and of right ought to bear wholly withdrawing and with his whole Strength intending the Peace and Common Tranquility of this Kingdom of England to disturb and War and Rebellion against our said Lord the King to move and stir up and the Government of our said Lord the King within this Kingdom of England to subvert and our said Lord the King from his Title Honour and Kingly Name of the Imperial Crown of this his Kingdom of England to put down and deprive and our said Lord the King to Death and final Destruction to bring and put the second day of November in the Year of the Reign of our Sovereign Lord Charles the Second King of England c. the 34th and diverse other days and times as well before as after at the Parish of St. Michael Bassishaw in the Ward of Bassishaw London aforesaid maliciously and traiterously with diverse other Traitors to the Jurors aforesaid unknown he did conspire compass imagine and intend our said Lord the King his Supream Lord not only of his Kingly State Title Power and Government of this his Kingdom of England to deprive and throw down but also our said Lord the King to kill and to Death to bring and put and the ancient Government of this his Kingdom of England to change alter and wholly to subvert and a Miserable Slaughter amongst the Subjects of our said Lord the King through his whole Kingdom of England to cause and procure and Insurrection and Rebellion against our said Lord the King to move procure and stir up within this Kingdom of England And to fulfil and perfect the said most horrible Treasons and Traiterous Compassings Imaginations and Purposes aforesaid he the said William Russel together with other false Traytors as a false Traytor then and there and diverse other Days and Times as well before as after Maliciously Trayterously and advisedly between themselves and with diverse other Traytors to the Jurors aforesaid unknown they did meet together consult agree and conclude and every of them then and there did consult agree and conclude Insurrection and Rebellion against our Sovereign Lord the King within this Kingdom of England to move and stir up and the Guards for the Preservation of the Person of our said Lord the King to seize and destroy against the Duty of his Allegiance against the Peace c. And also against the Form of the Statutes c. Cl. of Cr. How saiest thou art thou Guilty or not Guilty L. Russel My Lord may I not have a Copie of the Matter of Fact laid against me that I may know what to answer to it L. Ch. J. My Lord we can grant you nothing till you have pleaded Therefore that which is put to you now is whether you say you are Guilty or not Guilty L. Russel My Lord I am not Guilty Cl. of Cr. Culprit How wilt thou be tryed L. Russel By God and my Country Cl. of Cr. God send thee a good deliverance L. Russel My Lord I thought a Prisoner had never been arraigned and tryed at the same time I have been a close Prisoner L. Ch. Just For Crimes of this Nature My Lord we do it continually L. Russel It is hard my Lord. Mr. Att. Gen. My Lord hath no reason to complain for want of notice for since Monday seven-night he had notice of his Trial and the matters alledged against him he had notice of for Questions were put to him about this matter he hath been fairly dealt with he hath had the liberty of Counsel to advise him there hath been no sort of liberty denied him which becomes any Subject to have in this condition L. Ch. J. My Lord I do not know whether you hear Mr. Attorny He says your Lordship hath had a great deal of Favour shewn you already in that you have been acquainted with the Crimes for which you are now Indicted that you have had a great deal of warning given you that you have had the liberty of Counsel which hath not been known granted to any under your Lordships Circumstances He says he doubts not but your Lordship is prepared for your Defence because you have had so much knowledg and warning of the Time and Matter for which you were to be called in question L. Russel My Lord I am much to seek I only heard some general Questions and I have Witnesses that I believe are not yet in Town nor will be I believe till Night I think it very hard I can't have one day more Mr. Att. Gen. Monday seven-night your Lordship had notice L. Russel I did not know the matter I was charged with Mr. Att. Gen. Yes certainly for I was with you my self my Lord and those Questions you were examined upon were a Favour to you that you might know what the matter was you were accused of L. Ch. J. My Lord without the Kings consent we can't put off the Trial if the Kings Council think not fit to put it off we can't grant your Lordships Request in this Case L. Russel I would desire a Copy of the Pannel of the Jury that I might consider of it for how else can I make any just Challenge I thought the Law had been very favourable to Men upon their Lives and therefore it had allowed people to have some little notice L. Ch. J. Hath not your Lordship had a Copie of the Pannel I think your Lordship was allowed one We gave Order your Lordship should have a Copie of the Pannel Mr. Att. Gen. We did indulge him so far that he might have a Note of all the Men returned L. Russel I never had a Copie of the Pannel L. Ch. J. It was the fault of your Lordships Servants then for I gave Order for it my self 'T is such a favour that in regard a mans life lies at stake we never did deny it to my knowledge And therefore in this Case I gave order to the Secondary to deliver a Copie I know the King did not design to be hard upon my Lord in his Trial but that he should have as fair a Trial as ever any Noble
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
excepted L. Russel My Lord I thought it had been always so and the Law had been clear in that Case throughout England that no man ought to be tried for his life but by those that have Freeholds My Lord I remember I read the Statute of 2 H. 5. where 't is positive that no Persons shall be Judged in cases of life and death but by those that have 40 s. a year L. Ch. Just My Lord that Statute extends not to this Case Read the Statute Cl. of Cr. Whereas Perjury is much used in the City of London upon persons c L. Ch. Just Is this the Statute your Lordship has read L. Russel This is not in the case of Life and Death L. Ch. J. It is not my Lord. L. Russel That that I read is positive And if your Lordship will not allow of it I desire my Counsel may come and argue it for 't is a matter of Law and I can't argue it whether the Jury are not to be Freeholders Mr. Serj. Jeff. There is nothing mentioned in that Statute with relation to the City of London indeed but the necessity of the thing requires it Mr. Att. Gen. It will not be material 't is a collateral point for most of the Jurie have Freeholds L. C. J. Do you allow the Exception Mr. Att. Gen. No my Lord. L. C. J. Therefore we must if my Lord stand upon it hear his Counsel My Lord we will hear your Counsel what Counsel do you desire my Lord L. Russel The Counsel that were allotted me L. C. J. No you must have Counsel assigned by us The Counsel that was assigned elsewhere signifies nothing L. Russel Mr. Pollexfen Mr. Holt and Mr. Ward The said persons were called and came into Court L. Ch. Just To the Counsel Gentlemen my Lord here desires Counsel you are here assigned as Counsel for my Lord Russel that is at the Barr 't is concerning a thing wherein he doubts the Law he would except to the Jury upon this account to the Poll because they have not Freehold within the City of London and he desires you may be assigned his Counsel to make it out that this is a cause of Challenge Mr. Att. Gen. 'T is a case of Treason Mr. Pollexfen Mr. Ward We take it so Mr. Pollexf My Lord perhaps if we had more consideration of it we should speak more but if your Lordship pleases to hear us what we can say first we take it with submission at common Law a Freehold was necessary to make a man a Juryman But that which falls out in this case is the Statute of 2 H. 5. c. 3. which Statute I suppose is here in Court That Statute saies this if you please I will quote the substance of it that none shall be admitted to pass upon any Inquest upon the Tryal of the Death of a man except he have Lands and Tenements of the yearly value of 40 s. Now we are here I think within the Words of the Statute and I take it to be no Question at all were we not in a City and County I think this would be no Question upon any Trial in any County at large The Statute does not make any exception or distinguishment between Cities and Counties at large but the Words are general as I have opened them My Lord the Statute does also provide in cases of Freehold or 40 Marks Now my Lord to prove this Statute extends to London though a City and County there are other Statutes that have been subsequent make it plain that it does so extend But before I speak to them there is 1 Inst so 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 enable 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 Boroughs in Trials of Murder and Felony if a Freeman of the City of London is to be tried the Freemen shall be upon the Jury though they have not Freehold and then there is a Proviso that for Knights and Esquires that are out of the Burrough though they are arrained in the Burrough that extends not to them though 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 Treasons 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 Felonie and Murder I think we are not concerned in this Statute for we are no Freeman nor Burgess but we are an Esquire and therefore ought to be tried by Freeholders so that for the Law we relie upon these Statutes that we have looked upon as strong evidence that there ought to be in the Trial of the Life of a man especially for Treason Freeholders First if it were in Civil Causes if this qualification be not in Jurie-men then an Attaint would lie the Penaltie in an Attaint is that their Houses should be pulled down c. This is provided by the Law to the intent the Jurie may be careful to go according to their Evidence 'T is true no Attaint does lie in Criminal
it is prettie odly expressed for when a Man is accused of Felonies and other 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 Felonie 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 repeat their Statute and no Statute since takes away the force of that of Q. Mary that all Trials for Treason shall be as at the 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 London so that the Statute they speak of and the Interpretations of the several other these Gentlemen have Freeholds but we would not have this point lost to the Citie of Statutes too are to no purpose for we say by Common-Law all Causes might be tried by any Persons against whom there was not sufficient cause of Challenge and the 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 Q Mary whereby all Trials 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 necessarie for a Jury-man at Common-Law to have Free-hold Sir Geo. Jeff. My Lord I confess they have cited several Acts of Parliament and upon them laid their Foundation and drew 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 Trials 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 necessarie 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 lie in Criminal matters if you intend by that to have People of Abilitie 't is well known that the ablest People in the Citie of London have scarce any Free-hold in it for that most of the Inheritances of the Citie 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 Free-holders in London consider the Consequence then Treason should be committed in the Citie of London and there would not be enow in the Citie of London to trie it In the Case of the Quo-Warranto brought against the Citie 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 Free-holders 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 Citie having sent one of the Judges of that Court to your Lordships 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 committed in the Citie 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 viseneto therefore at the Common-Law those were good Inquests to trie 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 Citie 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 Trials are to be according to the use at Common-Law by the Statute of Q. 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. Ch. 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. J. what in Treason Mr. Pollexfen No my Lord. L. Ch. J. 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 Comon 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 Q. Mary comes and says all Trials 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 Q. Mary comes and sets all Trials 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 Juries 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. Bar. 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 extended to Treason or no I am not so clear And if it did it 's wiped off again by that of Q Mary which reduces all to the Common Law Trial. Mr. Just Wyndham I am of the same Opinion I conceive at Common Law lack of Freehold 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. 2. Q. 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 Jones 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 Stat. of H. 5. yet I take it that the Statute of 1 2 Ph. M. does restore the Common Law in this particular point For whereas there was a Stat. 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 has his Challenge to 35 as he had before that Stat. 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 Charleton 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 determin 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 Trials 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 though 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 satisfies 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 tried for Treason together in this very place and one of them a notable cunning Lawyer and if such a Challenge were to have been allowed no doubt he would have made use of it but the Challenge was not taken and if he had made such a Challenge and it had been allowed perhaps he could not have been tried That was Cook I have heard several persons tried for Treason my self and never heard it taken Therefore I am of Opinion that before any Statute was made in this case it was the Custom in London to try without Freeholds and since by the Statute of Q. Mary it is restored Mr. Baron Streete I think there was no such Challenge at Common Law The Jury were only to be probos legales homines and no more till the Statute made it so but there is a particular Reservation for Corporations And certainly if this should be admitted to be a good Challenge though it were between party and party there would be in some Corporations a perfect failure of Justice So that without doubt at Common Law there was no such Challenge As for the Statute of H. 5. 't is gone by that of Q Mary If this were admitted within London nothing would be more mischievous to this Corporation Methinks we have been very nice in this matter when the Life of the King is at stake and all the Customs and Priviledges of the City of London seem to be levelled at in this point I am of the Opinion with the rest of the Judges that this Challenge ought to be over-ruled Mr. Justice Withins I am of the same Opinion L. C. Just My Lord the Court is of Opinion upon hearing your Counsel and the Kings that it is no good Challenge to a Jurie in a case of Treason that he has not Freehold within the City But I must tell your Lordship withal That your Lordship has nothing of hardship in this case for notwithstanding that I must tell you you will have as good a Jurie and better than you should have had in a Country of 4 l. or 40 s. a Year Freeholders The Reason of the Law for Freeholds is That no slight persons should be put upon a Jury where the Life of a man or his Estate comes in Question but in the City the persons that are impanell'd are men of Quality and Substance men that have a great deal to lose and therefore Your Lordship hath the same in substance as if a Challenge was allowed of Freehold It will be no kind of prejudice to your Lordship in this case Therefore if you please apply your self as the Jury is called and make your Exceptions if you shall make any L. C. J. Mr. Pollexfen you shall have liberty to stay any where here if you please Counsel Here is such a great crowd my Lord we have no room Then the Jurymen were called and after the Lord Russel had challenged One and Thirty of them the Jury sworn were as follows John Martin William Rouse Jervas Seaton William Fashion Thomas Short George Toriano William Butler James Pickering Thomas Jeve Hugh Noden Robert Brough Thomas Omeby Then was made Proclamation for Information Cl. of Cr. William Russel Esq hold up thy Hand which he did You of the Jurie look upon the Prisoner and hearken to his Cause He stands indicted by the name of prout before in the Indictment Upon this Indictment he hath been arraigned and thereunto pleaded Nor Guilty and for his Trial hath put himself upon his Country which Country you are Your Charge is to inquire whether he be
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. Russel Dr. Tillitson He appears L. Ch. Just What Questions would you ask him my Lord L. Russel 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. J. 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 Russel 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 Russel 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 Russel 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 provoke to it he expressed himself so determined against that matter I think no Man could do more L. C. J. Will your Lordship call any other Witnesses L. Russel 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 Russel 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 Ruine 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. Romsey One of them Col. Romsey 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 said 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 Immodesty towards the King L. Russel I would pray the Duke of Somerset to speak what he knows of me D. of Som. I have known my Lord Russel 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. Ch. J. My Lord does say that he has known my Lord Russel 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 Howard something upon the Point my Lord Anglesey testified and to know what answer he makes to my Lord Anglesey L. C. Baron My Lord What say you to it that you told his Father he was a discreet Man and he needed not to Fear his Ingagement in any such thing L. Howard My Lord if I took it right my Lord Angleseys Testimony did Branch it self into two Parts one of his own knowledge and the other by Hear say as to what he said of his own knowledge when I waited upon my Lord of Bedford and endeavoured to comfort him concerning his Son I believe I said the words my Lord Anglesey has given an account of as near as I can remember that I looked upon his Lordship as a Man of that Honour that I hoped he might be secure that he had not intangled himself in any thing of that Nature My Lord I can hardly be provoked to make my own defence least this Noble Lord should suffer so willing I am to serve my Lord who knows I can't want affection for him my Lord I do confess I did say it for your Lordship well knows under what Circumstances we were I was at that time to out face the thing both for my self and my Party and I did not intend to come into this Place and Act this Part. God knows how it is brought upon me and with what unwillingness I do Sustain it but my Duty to God the King and my Country requires it but I must confess I am very sorry to carry it on thus far My Lord I do confess I did say so and if I had been to Visit my Lord Pemberton I should have say'd so There is none of those that know my Lord Russel but would speak of my Lord Russel from those Topicks of Honour Modesty and Integrity his whole Life deserves it And I must confess I did frequently say there was nothing of Truth in this and I wish this may be for my Lords advantage My Lord will you spare me one thing more because that leans hard upon my Reputation and if the Jury believe that I ought not to be believed for I do think the Religion of an Oath is not Tyed to a Place but receives its Obligation from the appeal we therein make to God and I think if I called God and Angels to Witness to a Falshood I ought not to be believed now But I will tell you as to that your Lordship knows that every man that was Committed was Committed for a design of Murdering the King now I did lay hold on that part for I was to carry my Knife close between the Paring and the Apple and I did say that if I were an Enemy to my Lord Russel and to the Duke of Monmouth and were called to be a Witness I must have declared in the presence of God and man that I did not believe either of them had any design to Murder the King I have said this because I would not walk under the Character of a Person that would be Perjured at the expence of so Noble a Persons Life and my own Soul L. Russel My Lord Clifford L. Ch. Just What do you please to ask my Lord Clifford L. Russel He hath known my Conversation for many Years L. Clifford I always took my Lord to be a very Worthy Honest Man I never saw any thing in his Conversation to make me believe otherwise L. Russel Mr. Gore Mr. Luton Gore I have been