ceedings against him; and that thereupon they bad come to these Resolves, 1. That sir Thomas Armstrong's plea ought to have been admitted, according to the statute of Edward 6, and that the execution of him upon the attainder by outlawry, was illegal, and a murder, by pretence of justice. 2. "That the executors and heirs of sir Thomas Armstrong, ought to have a reparation of their losses out of the estates of those that were his judges and prosecutors. 3. "That a Writ of Error for the reversal of a judgment in felony or treason, is the right of the subject, and ought to be granted at his desire, and is not an act of grace or favour; which may be denied or granted at pleasure."* To all which Resolves the House agreed. father; and sir Robert Sawyer + (then Attor- "That of the Commons about appellant jurisdiction over equity he took a decisive part against the claims of the Lords. About five years afterwards and when he had been Speaker of the Commons, he was made attorney general, and in that office so conducted the state prosecu tions during the latter part of the reign of Charles the second and for some years of the reign of his bigotted and unfortunate successor, as to render himself very unpopular if not odiBut a few months before the Revolution, sir Robert, having refused to support the dispensing power [See the Case of sir Edward Hales, in this Collection, A. D. 1686] claimed by king James, was removed from office: and then he was singled out as one of the counsel for the bishops on their trials, [See their Case in this Collection, A. D. 1688,] and acquitted himself with distinguished ability. See 1. Burn. Hist. fol. ed. 742. In the Convention Parlia ous. Monday the 20th of January, 1689. Mr. Chrisly reported from the Committee, to whom the bill for the annulling the Attainment, he was zealous against James; and in der of sir Thomas Armstrong was recommitted; some amendments to the bill; as also who were his prosecutors; and also what losses sir Thomas Armstrong's family had sustained, by reason of the attainder; and thereupon it was resolved, "That sir Richard Holloway, sir Francis Wythens, the executors of the late lord Jefferies, and of the late justice Walcot, Mr. Graham and Mr. Burton, do attend the House on Saturday morning next, to answer to such matters, as are charged against them touching the proceedings against sir Thomas Armstrong." Then Mrs. Matthews, sir Thomas Armstrong's daughter, was called in, and examined what she knew of the prosecution against her * See Salk. 504, and the books there cited in Serjeant Wilson's edition, contr. S. C. Skinn. 195. 3 Mod. 47; in the former of which books, it is said, This seems to be a case of the first instance, et durus sermo.' See, too, Holloway's Case, p. 1. of this Volume, and the cases of Ratcliffe and Cameron, and also East's Pleas of the Crown, as there cited. +"The vast learning and ability of sir Robert Sawyer," says Mr. Hargrave, (Preface to lord Hale's Treatise on the Jurisdiction of the Lords' House or Parliament, cxli, Note) "are sufficiently testified by his wonderfully profound and extensive argument for the crown in the great London Quo Warranto case in the reign of Charles the second. By thus referring to that argument, it is not meant in any degree to intimate any impression as to the real law of that famous case. The transitions of sir Robert Sawyer's life as a member of parliament and lawyer are particular. In this great struggle one of the debates previous to the vote of Abdi- 2 as one of the prosecutors of sir Thomas Armstrong." Resolved, "That sir Robert Sawyer be expelled the House for the same." Saturday the 25th of January, 1689. England, any man that was outlawed in felony or treason, might bring a writ of error to reverse his outlawry; which was to be granted 'ex debito justicia;' though it may be, the manner for suing for such a writ of error to the king might be by way of petition (as in a PeThe House being acquainted, That accord-tition or Remonstrance de droit for lands, &c. :) ing to their order, sir Francis Wythens, sir and so it was resolved in Ninian Melvin's case Richard Holloway, Mr. Graham, and Mr. Co. 4 Inst. 215. Burton, attended at the door, they were seve. rally called in, and examined, touching the Prosecution and Proceedings against sir Thoinas Armstrong. Ard also the executors of the late lord Jefferies, that were attending at the door, were likewise called in, and asked what they had to say, why reparation should not be made out of the lord Jefferies's estate, to the said sir Thomas Armstrong's family. No persons appearing as Executors to the late justice Walcot; the House was acquainted that he died intestate, and had not left an estate sufficient to pay his debts. After the persons before-mentioned were heard and withdrawn, Mr. Blaney was called in, who gave the House an account of the proceedings in the court of King's-bench, upon the awarding execution against sir Thomas Armstrong. And then the House proceeded upon the amendments made by the Committee to the bill, for annulling the Attainder of sir Thomas Armstrong: and after having inserted the name of sir Robert Sawyer, as a prosecutor, and resolved, That the sum of five thousand pounds should be paid by the judges and prosecutors, to sir Thomas Armstrong's lady, and children, as a recompence of the losses they had sustained by reason of his attainder, the bill was recommitted (upon the debate of the House) to the same Committee. This bill not passing, the Attainder stood in force till 6 William and Mary, when it was reversed upon a Writ of Error in the King'sbench; for that the record did not mention where the court of Hustings were held, the words pro Civitate London being omitted. 4 Mod. Rep. 366. Next, by the common law, if any man were in England at the time of the exigent awarded and went out of the realm after that, and before the outlawry pronounced, he could never assign that for error, that he was beyond sea at the same time of the pronouncing of the outlawry; and the reason is, because he was here at the time of the awarding of the exigent, and might reasonably have notice of it. On the other side, If any were out of England during the whole process and pronunciation of the outlawry, it was never yet a doubt but that was an error, and might be assigned for error, either by the party or his heir, at the common law, and so continues to this day; and was, not long since, adjudged in O'Kerny's case, the Irishman, who came in about two years after the outlawry. Then comes the statute of 5 and 6 Edw. 6. cap. 11. and enlarges the law for the benefit of the outlawed person, and gives him liberty to assign for error, that he was beyond sea at the time of the outlawry pronounced; which he could not do by common law, before the statute; and so continues. Then comes the proviso, and says, That he must come in within a year, and render himself, to be entitled to the benefit of that act; which was to assign for error, that he was beyond sea at the time of the outlawry pronounced. So that, my lord, upon this short state of the law, and my husband's case, he being beyond sea all the time of the process, and at the time of the outlawry pronounced, it is conceived he is well entitled to assign this for error, at the common law, without any aid of the statute, though the proviso in that statute should be ruled against him; which (with submission) is the opinion of many learned persons, in the law, that he is within the intent and meaning of that proviso, for many reasons too long to trouble your lordship with now. Therefore I do hope that this case of my husband's being the first case that any man was executed upon an outlawry (that did not desire it) may have that weight with your lordship that it deserves: and do hope that your lordship will so advise the king in matter of law (whose counsel you are), that my husband may have a writ of error granted him, and counsel assigned him to argue these points, as by the law has been allowed to criminals in capital cases, with whatsoever else shall appear upon the record of outlawry produced, which as yet my husband, or any for him never saw. The following is Roger North's defence of his brother the Lord Keeper's refusal to grant the writ of error: ever made in that case. 3. An oral application in private, is not to be regarded, because there is no certainty of what is either asked or denied. Business, of that kind, is not trusted to memory; but must be in writing, because the lord keeper is not to solicit any man's suit at his instance. He may direct if he thinks fit, but is not bound. Suitors must follow in the proper offices; and it was never heard that such suit was made to the lord keeper, but from the person whose case it is. There was rea son to endeavour a right understanding at that time, when committees of both Houses apart were appointed to enquire into the foregoing proceedings. That of the House of Lords was called the Committee of Murther. But after all methods of enquiry that could be taken upon oath or otherwise, no blame was found in any judge or minister in the time of king Charles 2. Which, as has been touched already, is a vindication that few ages, put to such a trial, could hope for.” MAS ARMSTRONG to the Sheriff. "Of a like nature with this [an application for a mandatory writ requiring Chief Justice Saunders to sign a bill of exceptions tendered to him at the trial of Pilkington Shute and others for a riot in London See the Case, vol. 9, p. 187, of this Collection,] was another application to the great seal for a fiat that a writ of error might issue to reverse an outlawry against sir Thomas Armstrong. The law is, that if a man, outlawed for high treason, renders himself within a year, he may have the benefit of a writ of error to reverse the outlawry, and so take his trial; otherwise not: and an outlawry, in such case, while it stands, is a complete attainder, as if tried and attaint by verdict and judgment. Armstrong fled into Holland, and was outlawed for the Rye Plot treason. Afterwards, within the year, he was taken up in Holland and brought into England, and, being opposed as to what he had to say for himself why execution should not be awarded, he insisted that, being present here within his A Copy of the PAPER delivered by Sir Thoyear, he ought to have a writ of error, and be admitted to plead. But the judges were of opinion that being brought in by force, against his will, was not a rendering himself within the statute; and thereupon he was executed. Pending the question, application was made to his lordship for a writ of error; and, exa mining into the matter, his lordship found that writs of error, to reverse outlawries in treason, had never been made out without a warrant from the attorney-general; for it is not a writ of right, but of favour: and it could not be demanded at the great seal otherwise; nor had the seal a warrant without a fiat from the attorney-general. But besides, the matter of right depended before the justices of oyer and terminer; and the writ would follow, or not, upon their determination: for which reason, it was impertinent to come to the great seal about it. But then, and afterwards, a clamour was raised and ventilated abroad, as if the man had been hanged for want of a piece of common justice at the great seal; and, after the Revolution, divers warm members began to open about it. For which reason a paper was framed, and put into the hands of some members, wherein it was thought fit to represent farther, that, 1. It is the office of the cursitor to make out writs of error in criminal cases, when the usual and proper warrants are brought to them. And the lord keeper's fiat never was, and, in that case, would not have been a warrant to the cursitor for such writ. Wherefore the refusal of it lay not upon the lord keeper. 2. The application to the great seal for special writs must be either by motion in open court, or by petition; which being granted, a fiat is wrote and signed upon it; and that remains in the offices, and is the warrant for farther proceeding else, it is delivered out unanswered; which is the refusal to grant what is desired in the petition. And no such application was I thank Almighty God, though I have had but a short time allowed me, I find myself prepared for death, and my thoughts set on another world; and I trust in God's mercy, I am well weaned from setting my heart on this: yet I cannot but give so much of my little time, to set down in writing my answers to some calumnies raised since my close imprisonment, as well as what Mr. Attorney accused me of at the bar. I was told, a very great person said I was a spy of Cromwell's. I was sent from England by the best and considerablest friends the king had then, with bills of exchange, and letters of very great importance to his majesty at Brussels; I appeal to his majesty if I delivered them not safe, and his answer to them,' when I returned: Which I had not been above six days but I was elapped up a close prisoner in the Gatehouse, and in extreme danger of my life for that journey. Before this, I had been a year in Lambeth-house a prisoner; and after a prisoner in the Tower, when the usurper died, and near starving in every one of them: very ill treatments for a spy and a pensioner! My lord of Oxford and many others of quality, will I think, testify my innocence in this point. I protest, before God I was never a spy or pensioner to Cromwell, or any other man. On Saturday last I was brought down to the King's-bench bar, on an outlawry of high treason: I was asked what I had to say for myself, that judgment of death should not pass?" I answered, That I was beyond sea when the outlawry came out; I thought the law allowed a writ of error to reverse it; 1 prayed I might be allowed a trial for my life, according to the laws of the land; I urged the statute of Edward 6th, which was express for it; but it signified nothing: 1 was condemned, and made a precedent; though ། mercy of God, in and through my blessed Redeemer, in whom I only trust; and I do verily hope I am going to partake of that fulness of joy which I believe is in his presence; the hopes whereof do infinitely please me. I thank God, I have no repining at my heart for the condition my sins have most deservedly brought me to; I have deserved much worse at the hands of God: So that I cheerfully submit to this punishment, as being taken off but a small time sooner. I do freely forgive all the world, even those concerned in taking away my life. As for the sentence of death passed upon me, I cannot but think it a very hard one; being denied the law of the land, as I think. To conclude: As I never had any design against the king's life, or the fife of any man; so I was never in any design to alter the government. I die in charity with all the world; and therefore I heartily pray God to bless the church of Christ every where, these poor nations, and the king's majesty; and I heartily commend my soul to God's infinite mercy, through my blessed Saviour, Jesus Christ. Mr. Holloway a little before had it offered him. I cannot but think all the world will conclude my case very different: and why was it refused me? Mr. Attorney accused me there for being one of those that were to kill the king as soon as he came back from Newmarket after the fire. I take God to witness, I never was in any design to take away the king's life; neither had any man the impudence to propose so base and barbarous a thing to me; neither was I ever in any design to alter the government of England. What I am accused of, I know no otherwise than by reports, and prints; which I take to be uncertain. So that it cannot be expected I should make particular answers to them. If I had been tried, I could have proved my lord Howard's base reflections upon me to be a notorious falsehood; for there were at least ten gentlemen, besides all the servants in `the house, can prove I dined there that day. I have lived, and now die, of the reformed religion, a true and sincere Protestant, and in the communion of the church of England. I have found the great comfort of the love and Remarks upon the AWARD of Execution against Sir THOMAS ARMSTRONG; by Sir JOHN HAWLES, Solicitor-General in the Reign of William the Third. AT common law, if a person was beyond sea when an outlawry was pronounced against him, it was an error in fact, for which the outlawry was to be reversed; and it is an error in all outlawries but for high treason to this day. By the 6th of Edward 6th, that error is taken away in high treason, but there is a proviso in that statute, that if the person outlawed shall within a year after the outlawry pronounced, yield himself to the chief justice of the King'sbench, and offer to traverse his indictment, and on his trial shall be acquitted, he shall be discharged of the outlawry. Upon the construction of this statute, no judgment was ever given that I know of; and the reason is, no man outlawed was ever denied a trial till this time, if he was taken within a competent time. The reason of making that statute 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, though 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 trial within a competent time, which that statute limits to a year after the outlawry pronounced. This being plainly the sense of the statute, was injustice to deny the favour or right of a trial to sir Thomas Armstrong, which was never denied any person before nor since, where it was agreed that all the witnesses against the person accused were alive, as in sir Thomas Armstrong's case they were, barely upon the quibble of the word render,' which in no case that ever I read was differenced from 'taken,' but in one case, which is Smith and Ashe's case, in Cro. Car. 58. in an outlawry for debts against husband and wife, which will not extend to, or warrant the judgment in this case; and if there were but a doubt in the case, as it cannot be denied there was, the outlawry ought to have been waved, or at least counsel for the prisoner heard as to the point. It was a vain and unjust reason (and only tending to incense the thing) assigned by the attorney, that the prisoner was one who actually engaged to go, upon the king's hasty coming to town to destroy him by the way; whereas the prisoner offered to prove his innocence in that and other matters of which he was accused and even that objection against him was an invention of the attorney's, for any thing appears; but then it was resolved to stop at nothing, and success had made them fearless. Fitzharris and Colledge it was owned had hard measure, and that their cases might be forgotten, their quarters were buried; but sir Thomas Armstrong's were exposed, though the proceedings against him were equally as unjustifiable as in the other two cases. 30s. Proceedings on a Writ of Inquiry of Damages between his Royal Highness JAMES Duke of YORK, in an Action upon the Statute de Scandalis Magnatum,† and TITUS OATES, in the King's-Bench: 36 CHARLES II. A. D. 1684.§ HIS royal highness the duke of York, having brought an action against Titus Oates, grounded upon the statute de Scandals Magnatum, for very slanderous and opprobrious words, the de * As to the Writ of Inquiry to assess damages, and the execution of it, see the Books of Practice and the Law Dictionary, title "Judgment 1;" title "Writ of Inquiry to assess Damages." Under the first of these titles in the Law Dictionary, edition of 1809, it is said, "the number of jurors sworn upon this inquest need not be confined to twelve ;" and the same is laid down by Mr. Christian in a Note to S Blackst. Comm. 398; but no authority in support of the position is cited except this Case of Oates: ideò quære. It appears, (3 Blackst. Comm. 398. Law Dict. tit. Judgment 1), that by the judgment out of which the Writ of Inquiry arises, "the sheriff is commanded, that by the oaths of twelve honest and lawful men, he inquire," &c. For the trial of issues in civil suits, the sheriff is commanded, "that he cause to come, &c. twelve free and lawful men, &c. to recognise the truth," &c. See Law Dict. title Jury IV. As to the Writ of Inquiry in Replevin, see Selwyn's Nisi Prius, Replevin, sect. 9. + As to the action for Scandalum Magnatum; see Selwyn's Abridgement of the Law of Nisi Prius, chap. Slander. See, in this Volume, the Reports of his Trials for Perjury on the 8th and 9th days of May, 1685. § Of the frequency, about this time, of prosecutions for defamatory speeches and writings, a notion may be formed from the following passages extracted from Narcissus Luttrell's MS.Brief Historical Relation," &c. "Nov. 28th, 1682, being the last day of the term, Mr. Pilkington, late sheriff of London, came into the court of King's-bench, and rendered himself into custody in discharge of his bail, in the Scandalum Magnatum by the duke of York against him. "May 3d, 1683, was a trial at bar in the King's-bench, in a Scandalum Magnatum, brought by the duke of Ormond against Mr. Wm. Hatherington, for speaking these words of him; that he was a Papist and in the Irish Plot, and guilty of high treason, to his damage of 10,000l. This was tried by a substantial jury of the county of Surrey: the witnesses that proved the words were Narrative Smith and justice Warcup, who swore very home; but the defendant making little defence, the jury, without going from the bar, found for fendant suffered judgment to go against him by default, and thereupon a writ of inquiry was taken out, directed to the sheriff of the county of Middlesex, to enquire by a jury of that county the plaintiff, and gave him 10,000/. damages; upon which Hatherington rendered himself into custody in discharge of his bail. "April 30, 1684. In the afternoon, at the Nisi Prius for the county of Middlesex, before the Lord Chief Justice Jefferys, George Cawdron, steward to the earl of Clare, was tried upon an information for speaking very scandalous and seditious words of his majesty and the government, and was thereof found guilty. May 3d, was a trial at the King's-bench bar, in an action of Scandalum Magnatum, by his Royal Highness, brought against John Dutton Colt, esq. a member of parliament for the borough of Lemster, for very scandalous words spoken of the Duke, which words being fully proved, the jury went from the bar, and presently came in and found for the plaintiff, and gave him damages to 100,000/. "His Royal Highness, some time since, commenced an action of Scandalum Magnatum against Sir Francis Drake, bart. of the county of Devon, for words spoken by him of the of, and that a writ was coming down to arrest Duke about four years since; which he hearing him, thought fit to abscond, and is since gone beyond sea, and has, as is said, disposed of his estate, thinking it better to have his liberty in a foreign country, than be laid up in his own for 100,000l. tion of Scandalum Magnatum against Dr. "His Royal Highness has brought his acTitus Oates for words; and not being able to find bail, he was committed to the Compter, and since turned over to the King's-bench prison by Habeas Corpus. "9th. Edward Noseworthy the younger, esq. pleaded at the court of King's-bench Not Guilty, to an information for these words: He hoped to see the judges hanged that tried Fitzharris. "12th. George Cawdron, convicted some time since for seditious words, came to receive the judgment of the court, which was to pay a fine of 100l. to stand [qu, in the pillory] in the Palace-yard, at Westminster, and in Claremarket, to find sureties of his good behaviour for life, and be committed till this be done. 31st. Robert Julian came to the court of King's-bench, and pleaded Not Guilty to an information, for making and publishing that scandalous libel, being a ballad to the tune of "Old Simon the King." "June 11th. Francis Smith, bookseller, |