Selected quad for the lemma: war_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
war_n	levy_v	statute_n	treason_n	2,504	5	9.5254	5	false

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

Libel as ever was writ yet I own if it had been writ and dispersed with that Design it had been High Treason within the Statute of E. 2. But the most natural Construction of the worst Design of it was to trepan the Parliament-men and make the Libels Evidences of a Rebellious Conspiracy this Everard confesses Fitzharris told him was the use to be made of them and Everard could not know the Design of them but by what Fitzharris told him And Oates well explains what Everard meant by the words in his Evidence put the Libel on the Nonconformists by what Everard told him But yet even that though in it self the highest Crime a Man can be guilty of next to putting it in Execution is but a Conspiracy which was mildly punished in Lane and Knox their Case though this exceeded that that being a design only against one Person this against many Yet tho' this was of no higher Crime by the Law as now established than a Misdemeanor it was fit for the Legislative Power to have punished it in manner it was punished which yet the Legislative Power ought to resent as an Injury for an inferior Court 's snatching the Exercise of that Power out of their hands which only belongs to the Supream Authority That this Crime upon construction of the Evidence taken in the best Sense is no Treason though the Libel should in all probability incite the Subject to leavy War which it was not likely to do or in Fact it had been the cause of a Rebellion yet if it was not designed by the Contriver to that purpose it was not Treason by the Statute of Edward the Third or Charles the Second for in the last Statute it is Designing to levy War and in the Statute of Edward the 3d. it is a strained Construction to make designing to leavy War Treason yet none ever pretended to strain the Sense of that Statute farther than designing to do it If the Ill Effects the Libel did or might produce made it Treason then Sir Samuel Astrey who read it in Court at the Tryal and the Printer that afterward printed and published it and Sir William Waller who read it to Mr. Hunt and others were guilty of Treason for the Libel carried no Venom or Charm with it the more for being framed by Fitzharris or Everard or for being published by either of them than if published by another person The difference is Astrey read it aloud as his Duty the Printer printed and published it for gain Sir William Waller published it as a Novelty and if Fitzharris contrived it to put it upon the Nonconformists or Parliament Men and not stir up a Rebellion tho' it tended to all the ill consequences mentioned in his Indictment yet it was not Treason But it will be urged how shall Fitzharris his intention be proved it was a question which made a mighty sputter in arguing the Plea how shall it be proved that the Impeachment was for the same Treason for which the Indictment was but in the Tryal of Fitzharris that question was fully cleared for it was proved there that the very Libel then produced in Court was the same Libel read in the House of Commons upon which the Impeachment was Voted And to say Truth nothing can be put in Issue but is capable of Tryal Quo animo a thing is done in all overt Acts of a design is one of the main questions or to speak in Law Phrase whether done proditoriè or not an Adverb of great use and sense tho' heretofore slighted and under which I believe a great many persons will be enforc'd to shelter themselves from being punished by the Law Established No Man will pretend that Libel did any man Mischief but the Contriver nor in probability could have done if not used to the purpose Everard said to Oates Yet other persons have been guilty of as illegal Acts of worse consequences in prospect and much worse in effect and it did not amount to Treason I dare say the Allegation that they disturbed the Kingdom by their Acts and War caused to be moved against the King is true of them and they are guilty of all the aggravations used in Indictments of Treason To instance in some of many Did it not make a mighty heart-burning in the City against the Government and raised great Jealousies between the King and People when the Sheriffs North and Rich were imposed on the City Did not the taking away the Cities right of Electing Sheriffs and the suspicions for what end it was done besides the Illegalities that followed If Sir Edward Herbert in his late Vindication fol. 16. be Law as it hath an Aspect as if it were that Grand Juries returned by such as are Sheriffs in fact but not in right are illegal and Convictions on their presentments are illegal and void give great disturbance and that Opinion seems to be countenanced by my Lord Coke's 3d. Instit fol. 32. in his Comment on the 11th of Henry the 4th and consequently the Lord Russel's and other Attainders void Did it not add to the heart-burning the punishing those Citizens as Rioters who were at Guildhall innocently contesting their right of Electing Was it not an increase of the mischief the bringing the Quo Warranto against the City whereby the Credit of the City was lost and many Orphans starved and more impoverished beyond the possibility of recovery And it was yet heightned by the Judgment given in the highest Case that ever came into Westminster-Hall by two Judges only and that without one word of Reason given at the pronouncing according to the pattern of Fitzharris his case and was the second mute Judgment Did it not fright all honest men from being on criminal Juries when Willmore was so illegally prosecuted for not giving a Verdict against his Conscience by an homine replegiando and Information And did not that make all Merchants who had Transactions beyond Sea afraid to send their Servants thither for fear they might be laid by the heels till they fetched them back again Did it not startle the Lords and the Leading Men of the House of Commons mentioned so often in Fitzharris his Tryal when the Earl of Essex Lord Russel Collonel Sidney Mr. Hampden and several others were clapt up close Prisoners in the Tower Did it not deter any honest man from appearing to witness the truth when Sir Patience Ward was convicted of Perjury Did it not provoke two great and noble Families when the Lord Russel and Collonel Sidney were so illegally and unhandsomely dealt withal as shall be hereaster declared Did it not provoke all the Nation except the Clergy and Soldiery when all the Charters of England were seized and not regranted but at excessive rates to the starving the poor who should have been fed with the Money which went to purchase the new Charters and reserving the disposition of all the places of profit and power within the new Corporations to the

of the Indictment material which was the time when that Treason was committed because by that Statute the Prosecutions of Treasons on that Statute ought to be within fix Months after it is committed and the Indictment ought to be within three months after the Prosecution and he being imprisoned in July and the Bill suggested that the supposed Treason was committed the 18th of March before and divers other times both before and after which might be interpreted to have been after the Prisoners Commitment had the Jury found the Bill as laid they had found the Treason to have been committed not only within the time the Prosecution by that Statute ought to be but also within the time the Indictment ought to have been preferred whereas in truth the Earl had been Imprison'd above three months before the Indictment preferred and there was no Evidence of any Treason committed by him after his imprisonment and therefore the finding the Bill as laid had been injurious to bring a Man in question for his Life on that Statute whereas by Law he ought not to have been For it was resolved in Colledge's Case that the Prosecution for Treason on that Statute ought to be within Six Months and the Indictment to be within three Months tho the Court was of another Opinion in the Lord Russel's Tryal And that this Indictment was on that Statute was expresly said to the Grand Jury and upon good reason for the Court in their Charge said that the Intention of levying War or designing to Imprison the King was not Treason till the Statute of Charles the Second tho' in the Lord Russel's Tryal it was held to be Treason by the Statute of E. 3. and therefore the Time of the Treason committed was material to be found by the Jury As for the Writing found in the Earls Study it was no manner of Evidence of Treason admitting what the Witnesses swore as to the finding it to be true because it was not proved that it was Prosecuted or Composed by the Earl of Shaftsbury or by his Order and that Peice of Evidence was in that Particular a meer Original In Fitz-Harris his Case it was proved the Libel was Composed by his direction Coll. Sydney's Book was proved to be like his Hand it was pretended that Colledge said he was the Author of the Raree-show and no example of this Evidence was ever made use of before Neither was it evidence of Treason as to the Matter for there was not one word against the present King but his Successor if it should be such a Person It is true one of the Kings Counsel said that one passage in it was that they would join to destroy the Mercenary Forces about London and thence inferred it was down right levying War against the King and his Guards whereas there is not any such word or thing in the Paper as he pretended to cite and if they had been in the Paper they would have been but Evidence of a Treason within the Statute of the late King and then the time of Writing them ought to have appeared and if that had been cleared yet for the above Reasons it was no Evidence and the Grand Jury tho' some of them afterwards smarted for it upon other pretences did like honest understanding Gentlemen and had they done otherwise to avoid the Ignominy of being called tho' in truth it was an honour to be an Ignoramus Jury they had justly deserved the reproach which since have lighted on other Juries such as Mr. Cornish's and the like and having spoken of this Ignoramus Jury for which two of them if not more were afterwards upon other pretences severely handled I think fit to say something of the Sufferings of one for being in a preceding Ignoramus Jury because it was a meer Novelty and that was Mr. Wilmore REMARKS ON Mr. Wilmore's HOMINE REPLEGIANDO HIS Prosecution tho it was but Criminal and not Capital did as much mischeif as it struck a terror into all Grand Juries as any the before mentioned Matters and it was by the homine replegiando issued out against him As for the Information against him I shall say nothing because the injustice of both will appear in the discourse of the first Mr. Wilmore had sent a Boy beyond Sea by agreement as Mr. Wilmore said whether true or not as to this Matter is not material a homine replegiando is granted against Mr. Wilmore for this at whose Prosecution is not material for any Person upon suggestion back'd by an Affidavit may have it granted the Sheriff would have returned on the Writ that the Boy was sent by his own agreement and consent with Mr. Wilmore which return was not allowed and the Sheriffs were told that they must either return they had replevied the Boy and they must have him in Court or else they would be laid by the heels or else they must return that Mr. Wilmore had Esloigned him which is carrying him away where the Sheriff could not find him and then a Withernam would issue against Mr. Wilmore upon which he would be taken and kept in Prison till he produced the Boy and no other return should be allowed then one of those two and if they did not make one of those two Returns they should be Committed and if the Law be so the Court were innocent but the Law ought then to be reformed in that Particular but if the Law was not so as I think it is not I think Mr. Wilmore and the Nation had great injustice done them for it was quickly seen what the mischeif of that Judgment was and therefore it was endeavoured to be reformed by an Act of King and Counsel afterwards first I say it is lawful for a Master to Covenant with a Servant to serve him beyond Sea in the next place it is lawful for a Master to send his Servant beyond Sea according to such agreement and if both those Propositions be true as I think no Man will say they are not it is a natural consequence to say that the Law hath provided a Return upon a Writ of homine replegiando if it should be such out against such Master for a Servant so sent beyond Sea which may indempnify the Master in so doing and that Return can be no other then the special Matter which in this Case was refused to be accepted 't is no argument that no such Return is ever read of in any Book For the Law hath determined that some Returns are good and others are bad yet it hath not said what are all the good Returns which may be made on an homine replegiando and the Sheriff is no more confined to Returns than a Man is in the Pleading of his Case which my Lord Coke says may very according to the Nature of his Case and yet the Law hath said what is a good Plea and what a bad one but hath not exprest all the good or bad Pleas and therefore it is no

others from committing the like Crimes and there being so many to be made Examples of besides those on whom the misfortunes of Madness falls it is inconsistent with humanity to make Examples of them it is inconsistent with Religion as being against Christian charity to send a great Offender quick as it is stiled into another World when he is not of a capacity to fit himself for it but what ever the Reason of the Law is it is plain the Law is so and for remedying it in High-Treason was the 33 of Henry the Eighth made whereby is is Enacted that if a Man fall Mad after he hath committed High-Treason he shall notwithstanding be tryed in his abscence and if a Man fall Mad after he is attainted of High-Treason he shall notwithstanding be Executed which Statute extending only to High-Treason the Law continued and yet is as it was at Common-Law in all other Capital Matters and even that Statute was called a Crued and Inhuman Law and therefore lived not long for is was aftenwards Repealed so that the Law as to this matter when this man was try'd and executed was as it was at Common-Law and therefore if he was of non sana Memoria he ought not to have been tryed much less executed I know it will be objected that if this matter of non sana Memoria should be permitted to put off a Tryal or stay Execution all Malefactors will pretend to be so but I say there is a great deal of difference between pretences and realities and sana and non sana Memoria hath been often tryed in Capital Matters and the Pris●ners have reaped so little benefit by their pretences it being always discovered that we rarely hear of it in this Case the Prisoner might have been tryed as well absent as present according to that repealed Statute for any advantage he did or could reap by being present and it seems very probable the Court thought him distempered for if he was of sane memory his Son ought not to have been permitted to make his Fathers defence if he was distempered he ought not to have been try'd much less executed and this Person being the last man as far as I can remember or can find by the Printed Tryals which suffered for the Plot of High-Treason first set on foot by Fitz-Harris and carried on against Colledge and the other Persons herein mentioned and the Design stopping here I think fit to end the Remarks in the Proceedings of all Capital Matters with him but I think it is fit for me to make some Apology for the thing and for my self for taking on me to censure the Opinions and Actions of Persons whose Characters carried Authority with them I confess I never thought that either the great Seal or a Garment ever added to a Man's Sence Learning or Honesty but he remained just such as to those qualities after his preferment as he was before and as to many of the Persons reflected on in these Remarks the censure of Coll. Sydney was true and for the best of them it is plain they not only varyed from one another in their Opinions but even from themselves in the Judgment of the same Case but always tending to the destruction of the Person tryed for his Life witness the Opinion of the Court in the Challenge of Jurors not having a Free-hold and the designing to levy War not Treason within the Stat. of Ed. 3. and forty other Matters and that not only gives a Liberty to enquire but naturally puts one upon the Enquiry which of the two Opinions is right tho it is impossible for one not to think meanly on the Person who in so great a Concern as a Man's Life should be so rash as to give his Opinion without consideration or so unsteady as to give different Opinions in the same Case for if the Truth of a Man who tells history backward and forward is justly suspected in point of Truth so the knowledge and sincerity of a Man who gives different Opinions in the same Case is justly suspected in point of law which together with the fulsom but injurious Stuff vented for Crown-Law which was the first Matter which put me on considering and writing what I have done And for my self if Tully thought it a reproach to his Son if he did not abound with Philosophy having heard Cratippus for the space of a whole Year and that at Athens surely one who hath had his Education at one of the Three great Schools for some Years and afterwards at the University And lastly Twenty five Years constant residence in an Inns of Court and Twenty Years Attendance at Westminster-Hall and not diverted by the usual Employs of a Sollicitor or Attorney may be allowed without the Imputation of Confidence to give his Censure upon consideration on the extempore Judgments or Opinions of Persons tho' of greater Standing and Character than Himself FINIS