Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	justice_n	king_n	law_n	4,449	5	4.8812	4	true

Text snippets containing the quad

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

Act. It hath been said if a Man be bound to his good behaviour and wears a Sword it is a breach of the good behaviour and perhaps heretofore vvhen Swords were not usually vvorn but by Souldiers it might be so because it struck a Terror in other People as much as a Blunder-buss or the like unusual Weapon or the going Armed in a Coat of Mail for any Person but a Souldier doth at this day but no Man will say that now Swords are usually vvorn by all sorts of People that it is a breach of the good behaviour and so that which heretofore vvas a Crime by custom now is become none It is therefore the unusualeness and the unaccountablness of the Circumstance makes it an Evidence which cannot be assigned as a reason in the Overt Act mentioned The last thing I take Notice of it that Coll Sydney refused to ask the Lord Howard any questions from whence was inferred that he assented to the truth of the Matter sworm but it is well known 't is no Prudence to ask a thorow paced Witness a question in Mr. Hampdens Tryal his Council refused so to do for that reason The next who fell a Sacrifice according to Colledge's Prophecy was James Holloway he was Out-lawed and taken beyond Sea and being induced with promised of Life to accuse himself of things whether he was Guilty or not enough to make good an Indictment of High-Treason against him It was indeed Generously offered him that his Out-lawry should be set aside and he should have the liberty to be Tryed and defend himself as well as he could but he knowing what since he was taken he had said which would be brought in Evidence against him refused his Tryal and because he would not Purchase his Pardon at the expence of Innocent Men's Blood by accusing others of what he did not know they were Guilty of if his dying Speech is to believed he was executed I should not mentioned this but for the sake of the next Persons Case which was Sir Thomas Armstrong who was Out-lawed for High Treason when he was beyond Sea he was taken and brough to the Kings-Bench-Bar REMARKS Upon the AWARD OF EXECUTION AGAINST Sir Tho. Armstrong AT Common Law if a Person was beyond Sea when an Out-lawry was pronounced against him it was an Error in Fact for which the Out-lawry was to be reversed and it is an Error in all Out-lawrys but for High-Treason to this day by the 6th of Edward the 6th that Error is taken away in High-Treason but there is a Proviso in that Statute that if the Person Out-lawed shall within a Year after the Out-lawry pronounced yeild himself to the Cheif-Justice of the King Bench and offer to traverse his Indictment and on his Tryal shall be acquitted he shall be discharged of the Out-lawry upon the construction of this Statute no Judgment was ever given that I know of and the reason is no Man Out-lawed was ever denyed a Tryal till this time if he was taken within a competent Time the reason of making that Stature was this Men would commit Treason and presently fly beyond Sea and stay there till the Witnesses who should prove the Treason were dead then return and reverse the Outlawry for the Error of their being beyond Sea and the Witnesses being dead they were safe and therefore this Statute takes away that Error in part tho not in the whole and doth in effect say that the Person Outlawed shall not have advantage of that Error unless he comes and takes his Tryal within a competent time which that Statute limits to be a Year after the Outlawry pronounced This being plainly the Sence of the Statute it was injustice to deny the Favour or ●ight of a Tryal to Sir Thomas Amstrong which vvas never denyed any Person before nor since where it was agreed that all the Witnesses against the Person accused vvas alive as in Sir Tho. Armstrong's Case they vvere barely upon the quibble of the Word render vvhich in no Case that ever I read vvas ever differenc'd from takes but in one Case vvhich is Smith and Ashes Case in Cro. C●r 42. In an Outlawry for Debt against Husband and Wife which vvill not extend to or vvarrant the Judgement in this Case and if there vvere but a doubt in the Case as it cannot be denyed but there vvas the Outlawry ought to have been vvaved or at least Council for the Prisoner heard as to the Point It vvas a vain and unjust reason and only tending to incenst the thing assigned by the Attorney That the Prisoner vvas on vvho actually engaged to go upon the King 's hasty coming to Town to destroy him by the vvay whenas the Prisoner offered to prove his innocence in that and other Matters of vvhich he vvas accused and even that object against him vvas an Invention of the Attorneys for any thing appears but then it was resolved to stop as nothing and ●…cess had made shem fearless Fitz-Harris and Colledge 't was owned had hard measure and that their Case might be forgotten their Quarters were buryed but Sir Thomas Armstrong's were exposed tho the Proceedings against him were equally as unjustifiable as in the other two Case REMARKS ON THE TRYAL OF C. Conningsmark I Think fit to remember in the same Reign tho before this time one Case to shew how the Courts of Justice were remiss or voilent according to the subject Matter All will agree that the Murther of Mr. Thynne was one of the most Barbarous and Impudent Murthers that ever was Committed and of that Murther Count Conningsmark tho he escaped Punishment was the most Guilty I do not complain that in that Tryal the Chief Justice directed the Prisoner the way to make the Kings Councel shew the cause of Challenge against the Persons called on the Jury and challenged for the King without Reason it was his Duty so to do and he ought to have directed Fitz-Harris the same Method which he did not but he was blameable that he did not ask the Lieutenant and Polander what they had to say for themselves which was always done before and since that time and ought to be asked of every Prisoner which was an injustice and therefore two of the Prisoners at the time of their Sentences said they were never Tryed tho I believe no great Injury to them because they had little or nothing to have said for themselves But if they had been askt they would have said as they did before their Tryals to the Justice of Peace who Committed them and as they did after their Condemnations that Count Conningsmark put them upon doing what they did which might have influenced the Jury to have found the Count Guilty which was contrary to the Design of the Court and it was for the same Reason the Chief Justice would permit the Justice of Peace to read the Examination of Sterne and Barosk I do agree that what they said before the Justice of

business he was four or five times between Christman and March with the Earl and the Captain that the Captain told him he was to Command Fifty Men to be the Earls Guard at Oxon and would have had him to be One That if the King did not Consent to several Acts of Parliament and other things they were to Purge the Guards and Court of several Persons and tho' the Captain told him that first yet afterwards he heard the Earl say the same things particularly about a week or ten days before the Parliament sate at Oxon he gave some Intimation of this to Walter Banes and then Writ it down and sent it to the Counsel Sealed in a Cover Turbervile swore that the Lord Shaftsbury said about February there was but little good to be done with the King as long as his Guards were about him Smith testified a great deal of discourse between him and the Lord Shaftsbury of something said Reflecting on the King and that he should say that if the King should offer any violence to the Parliament at Oxford he would meet with a strong Opposition for that the Gentlemen who came out of the Country came well provided with Horse and Arms to Oppose and that they might Lawfully do it if he offered and Violence to them whilst they sate Haynes swore that the Earl said if the King did not give Haynes his Pardon he and others would raise the Kingdom against him that Haynes gave the Earl an exact Account of Transactions since King Charles the First 's coming to the Crown and that the Earl said the Duke of Buckingham had as much Right to the Crown as any Stewart in England John Macnamarra said the Earl said the King was Popishly Affected and took the same Methods his Father did which brought his Fathers Head to the Block and they would bring his thither and this was said in the presence of Ivey and he thought of his Brother and said the King deserved to be deposed as much as King Richard the Second Dennis Macnamarra likewise testified the last words and that it was the latter end of March or beginning of April Ivey said the Earl said if the King denyed Haynes a Pardon they would rise upon him and force him to give one and that they design'd to depose him and set up another in his stead Bernard Dennis said he had a great deal of discourse with the Earl who bid him speak to his Friends in Ireland for they intended to have England under a Commonwealth and Extirpate the King and his Family Then the Court told the Jury the Indictment was grounded on the Statute of King Charles the Second but they ought to consider of that Statute as also the 25th of Edward the Third The question is whether the Grand Jury ought to have found the Bill on this Evidence first it ought to be considered what the Duty of a Grand Jury is and I think it is not what the Chief Justice said to consider only whether there be probable ground for the King to call the Person Accused to an Account much less do I think that the reason of the finding of a Bill by the Grand Jury was for the Honour of the King or Decency of the Matter least Persons Accused should be called to an Account by the King where there is no kind of Suspition of the Crime Committed by them as the Court said which last Matter was never assigned as a Reason of finding a Bill by the Grand Jury before but I take the Reason of a Grand Jury to be this that no Man for a Capital Matter shall ever be questioned by the King unless a Grand Jury take it on their Oaths that they believe the Matter of the accusation is true I do put an Emphasis on the words questioned by the King. It is true it is generally said That the business of a Grand-Jury in capital Matters is in favorem vitae but that taken simply is not true for then what reason can be assigned why a Man shall be Arraigned on an Appeal of Murder Robbery or the like which touches his Life as much as an Indictment of those Crimes without having the Matter of the Appeal first found to be true by a Grand Jury but the true reason of a Grand Jury is the vast inequality of the Plaintiff and Defendant which in an Indictment is always between the King and his Subjects and that doth not hold in an Appeal which is always between Subject and Subject and therefore the Law in an Indictment hath given a Privilege to the Defendant which it hath done in no other Prosecution of purpose if it were possible to make them equal in the Prosecutions and Defence that equal Justice may be done between both It considers the Judges Witnesses and Jury are more likely to be influenc'd by the King than the Defendant the Judges as having been made by him and as it is in his Power to turn them out punish to prefer or reward them higher and though there are not just Causes for them to strain the Law yet they are such Causes which in all Ages have taken place and probably always will this was the reason of running Prerogative so high in their Judgment of High Treason before the Stat. of Ed. III. That no Man as that Statute says knew what was not High Treason This was the reason of expounding that Statute oftentimes between the making of it and the making the Statute of Queen Mary that People was at as great a Loss till the last Statute as they were before the making of the first and even since the Statute of Queen Mary the Exposition on the Statute of Ed. III. hath been so extravagant and various that People are at this day as much at a Loss to know what is not High Treason as they were before the Statue of Ed. 3. norwas it or is it possible that the great Power of enriching honouring rewarding and punishing lodged in the King but that it always had and yet must have an influence on the Witnesses and Jury and therefore it is that the Law hath ordered that at the King's Proscution no Man shall be criminally questioned unless a Grand Jury upon their own Knowledg or upon the Evidence given them shall give a Verdict that they really believe the Accusation is true Iown of late days They have said the Duty of the Grand Jury is to find whether the Accusation is probable but that saying is warranted by no positive Law or antient Authority and therefore the Duty of the Grand Jury must be founded in the Oath administred to them which is as strict as the Oath administred to the Petit Jury and to say Truth the Verdict of the Petit Jury takes credit from the Verdict of the Grand Jury which is not only the reason of the difference in the Names of the two Juries but is likewise the reason why an Attaint for a false Verdict doth not lye

time he desired as in this Case it did Fitz-Harris said his Witnesses were in Holland and tho he named no Persons yet his Tryal was put off to the next Term my Lord Russel said his Witnesses could not be in Town till that Night yet the respite till next day was denyed all Persons agreed that there was some extraordinary Reason for it and before the Tryal was over the Riddle was out My Lord of Essex was killed or to be killed that Morning as to this Matter it is not material whether by his own or anothers Hand they were sensible the Evidence against my Lord Russel was very defective and that accident was to help it out but that would not avail unless it were a surprising Matter upon the Jury should the Jury have had a days or but a Mornings time to consider of it People might have been talking with the Jury it was very material to ask what influence that accident would have on my Lord Russels Trial whether it was any Evidence against him they might have been told what was true that no Person killed was in Law supposed to have killed himself till a Coroners Enquest had sate upon the view of his Body and found it so and if it had been so found yet even that had been no Evidence against another because the Coroners Enquest never found the reason why a Man killed himself and if they should find the reason yet even that was no Evidence against another because that other was never called before the Coroners Enquest to make his defence they might have been told a great many Circumstances of the Improbability of the killing himself they might have observed that the Kings Councel was so far sensible that it was no Evidence against my Lord Russel that they never attempted to prove the Earl of Essex was dead or killed himself it was only slyly insinuated together with the reason of it which had its Effect if the report be true of some of the Jurymen's saying it went farther with them than all the Evidence of the Witnesses produced and if that be true there was a reason tho not a just one for speeding that Tryal beyond the ordinary Methods of Trials at the Old Baily But tho my Lord Russel had seemingly less favour in that Matter than any other Person even than Colledge who had the respite of two or three hours between his Arraignment and Trial tho that was not in Favour to Colledge but only to examine his Papers which they took from him and instruct their Witnesses accordingly yet in other things he had more favour or justice done him his Papers were not taken from him it was agreed to be his Right to use them without questioning from whom he had them what they were or the like as in Colledge's Case was done he had a Copy of the Pannel of the Jury even before his Arraignment given him and the Chief Justice said it was never denyed in case of Life that he knew of which was denyed Col ledge before he pleaded because as then was pretended there was no Issue joyned till Plea pleaded after which the Venire is awarded tho' all Mén know That the Sheriff summons the Jury before the Arraignment and even after Issue joyned Colledge was denyed a Copy of the Pannel only he was told he should look every Jury-man in the Face before he was sworn and as far as the Looks of a Man betrays him he should be satisfyed whether he was honest or not which is an ill way of judging for I think the Person that gave that Rule would have deceived any Man by his Countenance who had known his Practices But say the Attorney General in my Lord Russel's Case it was matter of Favour and not of Right therefore no Injustice to Colledge I confess of all Men which ever came to the Bar he hath laid down the most Rules which depend totally upon the Authority of his own Saying In Colledge's Case he affirmed that the King's Witnesses ought not to be kept out of the hearing of each other when they gave their Evidence a method used in Civil Matters the reason of which is well known and none can shew any Law or Reason why it should not be used in capital Matters with as much Reason and Authority as what now said First I do affirm there is no Authority in Law which says a Prisoner shall not Have a Copy of the Pannel In the next place I do affirm that after a Jury struck in a civil Matter each Party ought to have a Copy of the Pannel in order to provide himself of a challenge if there be any cause In the last Place I do affirm that by Law more Favour is allowed a Defendant in a Capital Matter to defend himself then in a civil and if these propositions be true let any Person if he can make out the Law or Reason of the above assertions Of a like stamp were the sayings when my Lord desired a Copy of the Matter of Fact laid against him the Attorney said he had notice of it for questions were put to him about it and he was with his Lordship himself and examined him upon those questions which was a Favour to him that he might know what the Matter was he was accused of I do not affirm that ever it was practised to give the Prisoner a Note of the Fact to be given in Evidence against him proving Treason or that it was ever densed till then nor do I know of any Law pro or con in the Case but if one would judge by reason or practise in paralel Cases I think it ought not to be denyed I know not at present of more than two Sorts of general Indictments and those are of Treason and Barretry the last is a general Indictment for stirring up Suits without reason and without mentioning any Suit in particular and therefore if by the Rule of Court the Defendant was no helpt which obliges the Prosecutor to give the Defendant some reasonable time before the Tryal a Note of what Suits he intends to give in Evidence against him it was impossible for the Defendant to escape if it had been his misfortune to have had five or six Suits For I never yet saw a Witness produced against the Indicted but he would swear the indicted brought an Action against him without reason and yet I have often seen that the Indicted having had notice that that was one of the Suits he was intended to be charged with hath been able to prove that he had good or at least probable Cause of Suit which he could ' not have done if he had not notice and in Treasons for designing to kill the King there having been so many Interpretations of Facts tending that way that it is almost impossible for an Innocent to defend himself unless he had notice of the Fact intended to be insisted on at the Tryal There are yet some expressions which mightily puzle