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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
word_n	action_n	bring_v	plaintiff_n	2,718	5	10.1141	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A42295	A guide to juries setting forth their antiquity, power and duty from the Common-law and statutes : with a table / by a person of quality ; also a letter, to the author, upon the same subject.	Person of quality.; Maynard, John, Sir, 1602-1690.	1699 (1699)	Wing G2186; ESTC R10120	53,071	146

other Matters comprised within the Construction of the Statute of Praemunire as the drawing Matters any where else to another Examination than in the King's Courts of Law And many other Offences made to be under the like Punishment and call'd Praemunire by other Statutes which we need not here mention my Intention being only hereby to shew that Juries have been anciently Judges of Ecclesiastical Matters even in time of Popery And for their having been Judges of Religion also we may see after King Henry the Eighth had cast off the Pope's usurped Supremacy and by the Power of a Parliament restored the Crown and Laws of England in Church Matters to their ancient Rights and Usage but had not then cast off the Popish Religion He with the Lords Spiritual and Temporal and the Commons in Parliament in the Thirty first Year of his Reign even at the Instigation of the Clergy as is recited in the Record of that Statute and in Rastal's Printed Book of Statutes at large 31 H. 8. c. 14. Enacted that the Statute commonly call'd of six Articles whereby 1. The Real Presence in the Sacrament was to be believed 2. That the Communion in both kinds was not necessary 3. That Priests ought not to Marry 4. That Vows of Single Life are to be kept 5. That Private Masses were agreeable to God's Word 6. That Auricular Confession was necessary and that if any one should Publish Declare Say Affirm Argue or Hold any Opinion against the said Articles he should suffer Pains of Death without Benefit of Clergy and forfeit all his Estate Real and Personal and Commissions were to be directed to the Bishops of the Diocess their Chancellors Commissaries and other Persons as the King should appoint to Inquire by the Oaths of Twelve Men concerning these Matters Of which Statute the Learned Dr. Burnet in his History of Reformation Folio 266. hath observed That there was but one Comfort which the poor Reformers could pick out of the whole Act That they were not left to the Mercy of the Clergy in their Ecclesiastical Courts but were to be Tryed by a Jury where they might expect more Candid and Gentle Dealing But though these Matters were thereby to be brought before a Jury yet so great were the Arts and Industry of the Bishops and those who were then most Zealous to uphold Popery that they endeavour'd sometimes to bring back these things to their way of Determining without and to lay aside Juries and often when these Matters were brought before Juries they did over-awe them and overstrained this Law and so dreadful were the Storms and so grievous the Persecutions against the then Dissenters that in the 35th Year of the same Kings Reign to qualifie the Severity as by the Record thereof and Rastal's Book of Printed Statutes at large 35 H. 8. cap. 5. may be seen that whereas by force of the former Statute of 31 H. 8. Certain false Accusations and Presentments were brought against the Kings Subjects and such Accusations and Presentments were kept secret from the knowledge of the Accused till time espyed and they by Malice Convict to the great Peril and Danger of the Subject It was therefore Enacted that Presentments and Indictments on the said Statute whereunto any Person shall be call'd to answer shall be in open Court upon the Oaths of Twelve indifferent persons according to Equity and good Conscience and as other Presentments have been used to be taken in this Realm in such 〈◊〉 Causes according to the good and laudable Custom and Vsage of the same And that the Inquiry and Tryals upon the said Presentments and Indictments may Iustly and Charitably proceed without Corruption or Malice accordingly If any Object against this last recited Act That the Statute of 31. H. 8. of the six Articles was afterwards in the time of King Edward the Sixth Repealed and that this latter Statute of 35 H. 8. is also Repealed or of none Effect It is to be answered That though the first be repealed and that the latter Statute in what it relates to the former Statute in that respect be Repealed or of no Use yet as to what it doth Declare and Affirm to be the Ancient and long used Course of Law that Juries should proceed according to the Laudable Custom and Vsage of this Realm and agreeable to good Conscience and Equity and Charity without Malice or Corruption and that the Lives of the Subjects ought not to be drawn into danger by False and Malicious Accusations and Secret or Corrupt Practices These are such Fundamental Maxims and Rules of Law as cannot be repealed and no Judges whatsoever may give any Expositions to the contrary any more than they can do against Magna Charta or any other Fundamental Maxims or Rules of our Laws and Government Thus you may see what was then declared by the greatest Authority on Earth the King Lords and Commons in Parliament that the Laudable Custom and Usage of this Realm hath ever been for Grand Juries to make their Presentments and Indictments according to good Conscience and Equity and that they ought to proceed therein as well Charitably as Justly Since therefore in such Matters as belong to Grand Juries to enquire or are brought before them they have as large Power as a Lord Chancellour hath in matters within his Cognisance Well might Antiquity call them Grand Juries as Magna Charta is called the Great Charer from its great and weighty Contents Here I would not have it thought a Digression to add that having seemed before to speak only of Grand Juries and Juries of Tryal in Criminal Causes that the like Rules are to be observed concerning Juries a Tryal of Actions between Party and Party that the Judge should always leave the matter impartially and fairly before them which would much diminish the number of trivial Actions as of slander for Words c. whereof there may be some doubt whether some of them would bear an Action if the Judge would be pleased at the Tryal not to countenance either Party where a great Man sometimes will bring Action against a mean or poor Man for Words it may be but slightly proved though by Witnesses of seeming Gravity and not give Directions thereupon to give excessive Damages by reason of the great Quality of the Plaintiff I shall further take leave to Observe that both Juries of Inquiry and Juries of Tryal with their Power and Priviledges are so naturally the Rights of English-men that even when strong Endeavours were used to say them aside by an Act of Parliament which Empson and Dudley whom though you mentioned in your Book and I must take occasion to repeat with some Observation thereon had procured in 11 H. 7. to proceed without Juries yet when like wicked Gardiners for Gardiners may be a Simile for Councellors and Ministers of Justice and Government and be stiled good or bad as they behave themselves the aforesaid Empson and Dudley instead of using

21. Our Saviour and his Apostles plucked off and eat the Ears of another's Corn Mat. 12. And he because he had need of an Asse took that was none of his but anothers and had Lazarus ready to perish taken Dives's Crumbs against his Will c. yet it seems he had no more sinned than he mis-behaves himself that does what the Lord bids and the Steward forbids under the Rules aforesaid A Jury therefore not observing the Rules aforesaid gives a Verdict not only against the present and immediate Defendant but also in him even against David Christ c. represented thus in his Case In the Civil Law that of the Admiralty particularly if a distressed Ship takes water by force of another where is Plenty it 's no Theft because of the necessity so adjudged several times If an Indictment mention one Seditiously and designing to disturb the Government and to withdraw from the King the Love of his Subjects and said of him such and such Words here the Words might perhaps be spoken within the Priviledge of Discourse in Parliament or in a Jocular Way or Ironically when one means the contrary or by way of Supposition in Argument or when one meant a contrary thing or no harm at all and this perhaps too explained at the same time in other words accordingly or the Words in the Indictment be but part of the Sentence c. or transposed or some how else altered So if a Complaint be that one falsly and maliciously and withal designing to break his Credit and ruine his Trade called such a one a Bankrupt here perhaps he was a Bankrupt then or no Tradesman at all therefore in these and such Cases the Circumstances alledged being not implyed necessarily though the Fact or words were spoke they must be proved But to instance some Cases adjudged by the Judges themselves If A. bring an Appeal against B. and B. is after acquitted now should B. Indict A. for maliciously c. bringing the Appeal the Indictment ought not be found if B. were Indicted before of the same Fault he was after Appealed against for because his being before Indicted proves there was at least colourable Reason why the Appeal was brought and not Malice only Coron 178. 40 E. 3. 42. A Chvrurgion was Indicted for that he by Negligence in Curing one's Hand maimed it the Negligence must be proved 48 E. 3. 6. 11 H. 6. 18. So in Actions for Words which holds the same Law as in Indictments c. A. sues B. for falsly and maliciously calling him being an Heir a Bastard Action will not lye if B. pretend himself Heir for then it was not maliciously but only as it were in order to get or claim the Land c. And it 's Lawful thus to slander another justifying one 's own Title Co. 4. 10. So Molton sues Clapham for that a Suit depending between them upon reading certain Affidavits in Court Clapham openly then and there falsly and maliciously said there is not a Word true in the Affidavits and that he would prove it by 40 Witnesses here the Words though were agreed false yet being not spoke maliciously but out of other design as in his Defence c. as aforesaid Action does not lye B. R. 14 C. 1. Rot. 459. So a Councellor calling one a Thief at a Tryal the like for it 's not malicious c. if material for the Cause he manages Montagues c. So where A. says to his Friend B. that C. hath the French Pox therefore advising him not to keep him Company for spoke as Advice to a Friend and not maliciously James and Rudley's c. 40 41 El. in B. And thus is further seen the Cause or Occasion of speaking words or doing any thing must be considered as well as the Words or Fact And says Coke This is a General Rule Co. 4. 14. Also it 's another Rule All Offences in Fact or Word ought in construction to be made the least of possible Verba accipienda sunt in mitiori sensu Words shall be taken spoke in that sence which is most innocent c. See of this several Examples Co. 4. 17. Hob. 473. C. 4. 19. Co. 4. 13. for the Law will presume Innocency further than down-right proved as aforesaid to the contrary And if Juries should not be cautious as aforesaid one might be Indicted c. for saying The King is a fit Man to Govern or for any thing in the World Suppose A. be Indicted for maliciously and with a design to withdraw the King's Subjects from their due Allegiance c. saying The King is a fit Man to Govern and A. should be found Guilty of it because he said these words A. would be in a sad case the Judges must give Judgment as if the Words were spoke Ironically or in a contrary Sence than they were for so the Circumstances alledged import though be found of course If a Jury find an Indictment c. with the Word felonicè in it they find one Guilty of Felony be the Fact what it will and so as a Felon the Defendant must suffer So also if the word proditoriè for High Treason and why may not they as justifiably find these words of course as other not necessarily implyed Where an Indictment c. is grounded upon a Statute then every little Word must be proved that is also in the Statute though seeming implyed or little more than immaterial this all agree For want of these and such like Observations one Tho. Burdett Esq was Condemned Hanged and Beheaded at Tyburn in Edward the Fourth's Time when the matter proved was only that he being absent the King hunted in his Park and killed a white Buck which Mr. Burdett fancied above the rest of his Deer and that Mr. Burdett hearing of this wished the Bucks Horns in his Belly that Advised the King so to do Speed's Hist. 700. Much like was it also with one Walter Walker who was Beheaded in Smithfield Anno 1476. when all proved against him was only that he Living at the Sign of the Crown in Cheapside London said to his Child to pacifie him when he cryed Peace peace Child thou shalt be Heir of the Crown But who can open some Jury-mens Eyes to see how like an Ox led to the Slaughter they be imposed upon and cheated to cheat others of their Lives Fortunes and all that 's dear to them though by their Example too of Acting thus they make Presidents and give countenance to after Juries to be like themselves and consequently expose and render themselves they know not how soon in the same predicament and to be punished as the Criminal was they punished Or by the Evidence given you Evidence is only such a Testimony that makes somewhat relating to the issue or matter in Question clear manifest and plain to the Jury hence says Coke Lit. 283. Probationes debent esse evidentes perspicuae And thus is it all the Witnesses or Testimony in the World of