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ceedings against him; and that thereupon they father; and sir Robert Sawyer + (then Attor. bad come to these Resolves,
ney-General) being named by her, as one of 1..“ That sir Thomas Armstrong's plea ought the prosecutors; after she was withdrawn, he to have been admitted, according to the statute was heard in his place to what was objected of Edward 6, and that the execution of bim against bini, and then he withdrew, and upon upon the attainder by outlawry, was illegal, debate of the matter, it was resolved,
1. That and a murder, by pretence of justice.
sir Robert Sawyer's name be put into the Bill, 2. “ That the executors and heirs of sir Thomas Armstrong, ougbt to have a repara- of the Commons about appellant jurisdiction tion of their losses out of the estates of those over equity he took a decisive part against the that were his judges and prosecutors.
claims of the Lords. About five years after3. " That a Writ of Error for the reversal of wards and when he had been Speaker of the a judgment in felony or treason, is the right of Commons, he was made attorney general, and the subject, and ought to be granted at his de- in that office so conducted the state prosecu . sire, and is not an act of grace or favour; which tions during the latter part of the reign of may be denied or granted at pleasure.
Charles the second and for some years of the To all which Resolves the House agreed.
reign of his bigotted and unfortunate successor,
as to render himself very unpopular if not odi. « Resolved,
But a few months before the Revolution, “ That leave be given to bring in a bill to re
sir Robert, baving refused to support the disverse the attainder of sir Thomas Armstrong, pensing power (See the Case of sir Edward and to make reparation to his widow and chil.
Hales, in this Collection, A. D. 1686] claimed by dren, out of the estates of the judges and pro- then he was singled out as one of the counsel
king James, was removed from office: and secutors : and the same to be without fees.''
for the bishops on their trials, (See their Case in Monday the 20th of January, 1989. this Collection, A. D. 1688,) and acquitted himMr. Chrisly reported from the Committee, Hist. fol. ed. 742. In the Convention Parlia
self with distinguished ability. See 1. Burn. to whom the bill for the annulling the Attainsome amendments to the bill; as also who were cation, even went the length of saying in all I der of sir Thomas Armstrong was recommitted; ment, he was zealous against James ; and in
one of the debates previous to the vote of Abdihis prosecutors; and also what losses sir Tho
have read I never met, in so short a reign, mas Armstrong's family had sustained, by
• with the laws so violated and the prerogative reason of the attainder; and thereupon it was
so stretched,'5 Cobb. Parl. Hist. 48. When the resolved, " That sir Richard Holloway, sir Francis be a prospect, that his great legal and parlia
Revolution was accomplished, there seemed to Wythens, the executors of the late lord Jeffe
mentary abilities would raise him again into ries, and of the late justice Walcot, Mr. Graham and Mr. Burton, do attend the House on
some high official situation in the law. But Saturday morning next, to answer to such mat
bis rivals were eager to take advantage of his ters, as are charged against them touching the against sir Thomas Armstrong, who was exe
former conduct: and his barsh proceedings proceedings against sir Thomas Armstrong.” Then Mrs. Matthews, sir. Thomas Arm, standing all the earnest and pitiable efforts of
cuted on an outlawry for bigb treason potwithstrong's daughter, was called in, and examined his lady' and her friends to obtain a writ of erwhat she knew of the prosecution against ber
ror to reverse the judgment, the legality of * See Salk. 504, and the books there cited which was most apparently questionable, soon in Serjeant Wilson's edition, contr. S. c. gave the opportunity. A petition of lady ArmSkinn. 195. 3 Mod. 47 ; in the former of which strong and her daugbters was presented to the books, it is said, “This seems to be a case of House of Commons; and the result was imthe first instance, et durus sermo." See, too, plicating sir Robert Sawyer as the leader of the
exHolloway's Case, p. 1. of this Volume, and prosecution, and in respect of it he was
It is obthe cases of Ratcliffe and Cameron, and also pelled the House of Commons. East's Pleas of the Crown, as there cited.
observable, that tbis petition of lady Armstrong
produced a Resolution of the House of Cum + “ The vast learning and ability of sir Ro. mons, that a Writ of Error for the reversal of bert Sawyer,” says Mr. Hargrave, (Preface a judgment in felony or treason is the right to lord Hale's Treatise on the Jurisdiction of • of the subject and ought to be granted at his the Lords' House or Parliament, cxli, Note) desire, and is not an act of grace or favour, " are sufficiently testitied by his wonderfully • which may be denied or granted at pleasure.' profound and extensive argument for the crown This Resolution passed the 19th Nov. 1689, in the great London Quo Warranto case in the which was about two months before sir Robert's reign of Charles the second. By thus referring expolsion ; and it seems from Mr. Grey's acto ihat arguinent, it is not meant in any degree count of the debates on that occasion, as if his to intimate any impression as to the real law of coarse behaviour, on declining to assist the that famous case. The transitions of sir Robert granting of the Writ of Error, was one of the Sawyer's life as a member of parliament and grounds. But on the other hand it should be lawyer are particular. In this great struggle remembered on his behalf, that the chief wit
as one of the prosecutors of sir Thomas Arm- , England, any man that was outlawed in felony strong."
or treason, might bring a writ of error to reResolved, “ That sir Robert Sawyer be ex- verse his outlawry; which was to be granted pelled the House for the same.”
• ex debito justiciæ ;' though it may be, the
manner for suing for such a writ of error to the Saturday the 25th of January, 1689.
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 Ninjan Melvin's case Richard Holloway, Mr. Graham, and Mr. Co. 4 Inst. 215. Burton, attended at the door, they were seve. Next, by the common law, if any man were rally called in, and examined, touching the in England at the time of the exigent awarded Prosecution and Proceedings against sir Tho- and went out of the realm after that, and before was Armstrong
the outlawry pronounced, he could never asArd also the executors of the late lord Jef- sign that for error, that he was beyond sea feries, that were attending at the door, were at the same time of the pronouncing of the outlikewise called in, and asked what they had to lawry; and the reason is, because he was say, why reparation should not be made out of here at the time of the awarding of the exigent, the lord Jetleries's estate, to the said sir Tho. ani migbt reasonably have notice of it. mas Armstrong's family.
On the other side, If any were out of EngNo persons appearing as Executors to the land during the whole process and pronuncialate justice Walcot; the House was acquainted tion of the outlawry, it was never yet a doubt that lie died intestate, and had not left an estate but that was an error, and might be assigned suficient to pay bis debts.
for error, either by the party or his heir, at the Alter the persons before mentioned were common law, and so continues to this day; heard and withdrawn, Mr. Blaney was called and was, not long since, adjudged in O'Kerny's in, who gave the House an account of the pro- case, the Irishman, who came in about two ceedings in the court of King's-bench, upon years after the outlawry. the awarding execution against sir Thomas Then comes the statute of 5 and 6 Edw. Armstrong
6. cap. 11. and enlarges the law for the benefit And then the House proceeded upon the of the outlawed person, and gives him liberty amendments made by the Committee to the to assign for error, that he was beyond sea at bill, for annulling the Attainder of sir Thomas the time of the outlawry pronounced ; which Armstrong: and after having inserted the name he could not do by common law, before the of sir Robert Sawyer, as a prosecutor, and re- statute ; and so continues. solved, Tbat the sum of five thousand pounds Then comes the proviso, and says, That he should be paid by the judges and prosecutors, must come in within a year, and render himto sir Thomas Armstrong's lady, and children, self, to be entitled to the benefit of that act; as a recompence of the losses they had sus- which was to assign for error, that he was betained by reason of his attainder, the bill was yond sea at the time of the outlawry. prorecommitted (upon the debate of the House) to nounced. the same Committee.
So that, my lord, upon this short state of the This bill not passing, the Attainder stood in law, and my husband's case, he being beyond force till 6 William and Mary, when it was re- sea all the time of the process, and at the time versed upon a Writ of Error in the King's | of the outlawry pronounced, it is conceived he bench; for that the record did not mention is well entitled to assign this for error, at the wliere the court of Hustings were held, the common law, without any aid of the statute, words Civitate London being omitted. 4 though the proviso in that statute should be Mod. Rep. 366.
ruled against him; wbich (with submission) is the opinion of many learned persons, in the law,
that he is within the intent and meaning of that A COPY of the PAPER delivered to the Lord- proviso, for many reasons too long to trouble
Keeper NORTH, the Lord-Chief-Justice your lordship with now.
husband's being the first case that any man by the Lady ARM
was executed upon an outlawry (that did not STRONG, on the behalf of her husband desire it) may have that weight with your lordSir THOMAS ARMSTRONG.
ship that it deserves: and do hope that your My Lord;
lordship will so advise the king in matter of I am informed, That by the common law of law (whose counsel you are), that my husband
may have a writ of error granted him, and ness examined against him admitted, that he counsel assigned him to argue these points, as did not demand execution of sir Thomas till the by the law has been allowed to criminals in cajudges had declared themselves, and that as to pital cases, with whatsoever else shall appear the Writ of Error he said it was not in his upon the record of outlawry produced, which power to grant a Writ of Error, but that the as yet my husband, or any for him never saw. king or lord keeper must be applied to by petition."
The following is Roger North's defence of ever made in that case. 3. An oral application : his brother the Lord Keeper's refusal to grant in private, is not to be regarded, because there the writ of error:
is no certainty of what is either asked or de“Of a like nature with this can application nied. Business, of that kind, is not trusted for a inandatory writ requiring Chief Justice to memory; but must be in writing, because Saunders to sign a bill of exceptions tendered the lord keeper is not to solicit any man's suit to him at the trial of Pilkington - Shute and at bis instance. He may direct if he thinks others for a riot in London See the Case, vol. fit, but is not bound. Suitors must follow in 9, p. 187, of this Collection,) was another ap- the proper offices; and it was never heard that plication to the great seal for a fiat that a writ such suit was made to the lord keeper, but from of error might issue to reverse an outlawry the person whose case it is. There was rea, against sir Thomas Armstrong. The law is, son to endeavour a right anderstanding at that that if a man, outlawed for high treason, ren- time, when committees of both Houses apart ders himself within a year, be may have the were appointed to enqnire into the foregoing benefit of a writ of error to reverse the outlawry, proceedings. That of the House of Lords was and so take his trial; otherwise not: and an called the Committee of Murther. But after outlawry, in such case, while it stands, is a all methods of enquiry that could be taken complete attainder, as if tried and attaint by upon oath or otherwise, no blame was found in verdict and judgment. Armstrong Aled into any judge or minister in the time of king Holland, and was outlawed for the Rye Plot Charles 2. Which, as has been touched altreason. Afterwards, within the year, he was ready, is a vindication that few ages, put to taken up in Holland and brought into England, such a trial, could hope for.” 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 Troyear, he ought to have a writ of error, and be admitted to plead. But the judges were of
MAS ARMSTRONG to the Sheriff. opinion that being brought in by force, against I thank Almighty God, though I have had - his will, was not a rendering himself within the but a short time allowed me, I find myself pre
statute ; and thereupon he was executedl. pared for death, and my thoughts set on anoPending the question, application was made ther world; and I trust in God's mercy, I am to his lordship for a writ of error; aid, exa- well weaned from setting my heart on this : * mining into the matter, his lordship found that yet I cannot but give so much of my little time, writs of error, to reverse outlawries in treason, to set down in writiog my answers to some cahad bever been made out without a warrant lumnies raised since my close imprisonment, from the attorney-general; for it is not a writ as well as what Mr. Attorney accused me of of right, but of favour: and it could not be de- at the bar. I was told, a very great person said manded at the great seal otherwise ; nor had I was a spy of Cromwell's. I was sent from the seal a warrant without a fiat from the attor- England by the best and considerablest friends ney-general. But besides, the matter of right the king had then, with bills of exchange, and depended before the justices of oyer and ter- letters of very great importance to his majesty miner; and the writ would follow, or not, upon at Brussels ; I appeal to his majesty if I delivertheir determination : for which reason, it was ed them not safe, and his answer to them, impertinent to cope to the great seal about it. when I returned : Which I had not been above But then, and afterwards, a clamour was raised six days but I was elapped up a close prisoner and ventilated abroad, as if the man had been in the Gatehouse, and in extreme danger of hanged for want of a piece of common justice my life for that journey. Before tbis, I bad at the great seal; and, after the Revolution, been a year in Lambeth-house a prisoner ; divers warm members began to open about it. and after a prisoner in the Tower, when the For wbich reason a paper was framed, and put usurper died, and near starving in every one of into the hands of some members, wherein it them : very ill treatments for a spy and a pen-, was thought fit to represent farther, that, 1. It sioner ! My lord of Oxford and many others is the office of the cursitor to make out writs of quality, will I think, testify my innocence of error in criminal cases, when the usual and in this point. I protest, before God I was never proper warrants are brought to them. And a spy or pensioner to Cromwell, or any other the lord keeper's fiat never was, and, in that man. On Saturday last I was brought down case, would not have been a warrant to the to the King's-bench bar, on an outlawry of cursitor for such writ. Wherefore the refusal high treason: I was asked what I had to say of it lay not upon the lord keeper. 2. The ap- for myself, that judgment of death should not plication to the great seal for special writs pass?" I answered, That I was beyond sea must be either by motion ip open court, or by when the outlawry came out ;. I thought the petition ; which being granted, a fiat is wrote law allowed a writ of error to reverse it; i and signed upon it; and that remains in the prayed I might be allowed a trial for my life, offices, and is the warrant for farther proceed according to the laws of the land ; I urged ing: 'else, it is delivered out unanswered ; the statute of Edward 6th, which was exwhich is the refusal to grant what is desired in press for it; but it signified nothing : was the petition. And no such application was condemned, and made a precedent ; though
Mr. Holloway a little before had it offered bimn. mercy of God, in and through my blessed I cannot but think all the world will conclude Redeemer, in whom I only trust; and I do my case very different: and why was it refused verily hope I am going partake of that fame ? Mr. Aitorney accused me there for being ness of joy which I believe is in bis presence ; one of those that were to kill the king as soon the hopes whereof do infinitely please me. I as he came back from Newmarket after the thank God, I have no repining at my heart for fire. I take God to witness, I never was in the condition my sins have most deservedly any design to take away the king's life; neither ought me to ; I have deserved much worse had any man the impudence to propose so at the hands of God : So that I cheerfully subbase and barbarous a thing to me ; neither was mit to this punishment, as being taken off but I ever in any design to alter the government a small time sooner. I do freely forgive all of England. What I am accused of, I know the world, even those concerned in taking away no otherwise than by reports, and prints; which my life. As for the sentence of death passed I take to be uncertain. So that it cannot be upon me, I can not but think it a very hard one ; expected I should make particular answers to being denied the law of the land, as I think. them. If I had been tried, I could have prov. To conclude: As I never had any design ed my lord Howard's base reflections upon me against the king's life, or the fife of any man; to be a notorious falsehood ; for there were at so I was never in any design to alter the goleast ten gentlemen, besides all the servants in vernment. I die in charity with all the world; 'the house, can prove I dined there that day. and therefore I heartily pray God to bless the
I have lived, and now die, of the reformed church of Christ every where, these poor nareligion, a true and sincere Protestant, and in tions, and the king's 'majesty; and I beartily the communion of the church of England. I commend my soul to God's infinite mercy, bave found the great comfort of the love and through my blessed Saviour, Jesus Christ.
Remarks upon the AWARD of Execution against Sir Thomas ARM
STRONO; by Sir John Hawles, Solicitor-General in the Reign
of William the Third. AT common law, if a person was beyond sea trial to sir Thomas Armstrong, which was never when an outlawry was pronounced against denied any person before nor since, where it him, it was an error in fact, for which the out- was agreed that all the witnesses against the lawry was to be reversed ; and it is an error in person accused were alive, as in sir Thomas all outlawries but for high treason to this day. Armstrong's case they were, barely upon the By the 6th of Edward 6th, that error is taken quibble of the word • render,' which in no case away in high treason, but there is a proviso in that ever I read was differenced from “taken,' that statute that if the person outlawed shall but in one case, which is Smith and Asbe's within a year after the outlawry pronounced, case, in Cro. Car. 58. in an outlawry for debts yield himself to the chief justice of the King's- against husband and wife, which will not ex. bench, and offer to traverse his indictment, tend to, or warrant the judgment in this case ; and on his trial shall be acquitted, he shall be and if there were but a doubt in the case, as it discharged of the outlawry. Upon the con cannot be denied there was, the outlawry ought struction of this statute, no judgment was ever to have been waved, or at least counsel for the given that I know of; and the reason is, no prisoner heard as to the point. man outlawed was ever denied a trial till tbis It was a vain and unjust reason (and only time, if he was taken within a competent time. tending to incense the thing) assigned by the The reason of making that statute was this; attorney, that the prisoner was one who actu
men would commit treason, and presently fly ally engaged to go, upon the king's basty com• beyond sea, and stay there till the witnesses ing to town to destroy him by the way; who should prove the treason were dead; then whereas the prisoner offered to prove his innoreturn, and reverse the outlawry for the error cence in that and other matters of which he of their being beyond sea; and the witnesses was accused : and even that objection against being dead they were safe : and therefore this him was an invention of the attorney's, for statute takes away that error in part, though any thing appears; but then it was resolved to not in the whole, and doth in effect say, that stop at nothing, and success had made them the person outlawed shall not have advantage fearless. Fitzharris and Colledge it was owned of that error, unless he comes and takes his bad hard measure, and that their cases might trial within a competent time, which that statute be forgotten, their quarters were buried; but limits to a year after the outlawry pronounced. sir Thomas Armstrong's were exposed, though
This being plainly the sense of the statute, the proceedings against him were equally as was injus tice to deny the favour or right of a unjustifiable as in the other two cases.
308. 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,f and Titus Oates,f in
the King's-Bench: 36 Charles II. A. D. 1684.5 His royal bighness the duke of York, having fendant suffered judgment to go against him bronght an action against Titus Oates, grounded by default, and thereupon a writ of inquiry was upon the statute de Scandalis Magnatum, for taken out, directed to the sheriff of the county very slanderous and opprobrious words, the de- of Middlesex, to enquire by a jury of that county
* As to the Writ of Inquiry to assess da- the plaintiff, and gave him 10,0001. damages ; mages, and the execution of it, see the Books upon which Hatherington rendered himself of Practice and the Law Dictionary, title into custody in discharge of his bail. “ Judgment 1;” title “ Writ of Inquiry to “ April 30, 1684. In the afternoon, at the assess Damages.” Under the first of these Nisi Prius for the county of Middlesex, before titles in the Law Dictionary, edition of 1809, the Lord Chief Justice Jefferys, George Cawit is said, " the number of jurors sworn upon dron, steward to the earl of Clare, was tried this inquest need not be confined to twelve ;” upon an information for speaking very scanand the same is laid down by Mr. Christian in dalous and seditious words of his majesty and a Note to S Blackst. Comm. 398 ; but no au- the government, and was thereof found guilty. thority in support of the position is cited except May 3d, was a trial at the King's-bench this Case of Oates : ideò quere. It appears, bar, in an action of Scandalum Magnatum, by (3 Blackst. Comm. 398. Law Dict. tit. Judg- his Royal Highness, brought against John ment 1), that by the judgment out of which Dutton Colt, esq. a member of parliament for the Writ of Inquiry arises, " the sheriff is the borough of Lemster, for very scandalous commanded, that by the oaths of twelve honest words spoken of the Duke, which words being and lawful men, he inquire," &c. For the fully proved, the jury went from the bar, and trial of issues in civil suits, the sheriff is com- presently came in and found for the plaintiff, manded, “th he cause to come, &c. twelve and gave him damages to 100,000l. free and lawful men, &c. to recognise the “ His Royal Highness, some time since, truth,” &c. See Law Dict. title Jury IV. As commenced an action of Scandalum Magnatum to the Writ of Inquiry in Replevin, see Sel. against Sir Francis Drake, bart. of the county wyn's Nisi Prius, Replevin, sect. 9.
of Devon, for words spoken by him of the + As to the action for Scandalum Magnatum,
Duke about four years since; which he hearing see Selwyn's Abridgement of the Law of Nisi him, thought fit to abscond, and is since gone Prius, chap. Slander.
beyond sea, and has, as is said, disposed of his 1 See, in this Volume, the Reports of his estate, thinking it better to have his liberty in Trials for Perjury on the 8th and 9th days of a foreign country, than be laid up in his own May, 1685.
for 100,0001. $ Of the frequency, about this time, of prose- tion of Scandalum Magnatum against Dr.
“ His Royal Highness has brought his accutions for defamatory speeches and writings, Titus Oates for words; and not being able to a potion may be formed from the following find bail, he was committed to the Compter, passages extracted from Narcissus Luttrell's and since turned over to the King's-bench MS. « Brief Historical Relation," &c.
prison by Habeas Corpus. “ Nov. 28th, 1682, being the last day of the “ 9th. Edward Noseworthy the younger, term, Mr. Pilkington, late sheriff of London, esq. pleaded at the court of King's-bench Not came into the court of King's-bench, and ren- Guilty, to an information for these words: He dered himself into custody in discharge of his hoped to see the judges banged that tried Fitzbail, in the Scandalum Magnatuin by the duke barris. of York against him.
“ 12th. George Cawdron, convicted some May 3d, 1683, was a trial at bar in the time since for seditious words, came to receive King's-bench, in a Scandalum Magnatum, the judgment of the court, which was to pay a brought by the duke of Ormond against Mr. fine of 100l. to stand [qu. in the pillory] in ihe Wm. Hatherington, for speaking these words Palace-yard, at Westminster, and in Clareof him; that he was a Papist and in the Irish market, to find sureties of his good behaviour Plot, and guilty of high treason, to his damage for life, and be committed till this be done. of 10,0001. This was tried by a substantial 16 31st. Robert Julian came to the court jury of the county of Surrey: the witnesses of King's-bench, and pleaded Not Guilty to an that proved the words were Narrative Smith information, for making and publishing that and justice Warcup, who swore very home; scandalous libel, being a ballad to the tune of but ibe defendant making little defence, the Old Simon the King." jury, without going from the bar, found for “ June 11th, Francis Smith, bookseller,