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.

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 Er∣ror in Fact, for which the Out-lawry was to be rever∣sed, 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 Judg∣ment 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 Er∣ror, 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 'twas owned had hard mea∣sure, 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.