Selected quad for the lemma: act_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
act_n	king_n	law_n	treason_n	3,277	5	8.9802	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
B03411	Information for my Lord and Lady Nairn, David Falconer of Newtoun, and Michael Balfour of Forret; against the Earl of Argyl.		1690 (1690)	Wing F295; ESTC R178651	9,822	16

Bill insist upon two Acts of Parliament viz 49 Act Parl 11 Ja 6 and 69 Act 6 P●●●● Ja 5 By the first cited of these it is provided That whoever maliciously accuses another of Treason if the Party accused be acquit the Accuser incurrs the pain of Treason which in all Reason as is alleadged ought to take place against these who maliciously conde●● the innocent and thereby would pretend that the Judges were lyabl● to be punished as Traitors And by the other Act of King James the Fifth it is provided That process of Treason may be pursued again●● the Heirs of the Traitor but the Earl of his meer bounty does restrict the effect thereof to Restitution To these pretences it is Answered that it was a rare streach of Invention to find out an Argument from these Laws against the Judge or their Heirs to make them lyable according to the desire of the Petition and to which the Earl was driven by the view of the Obvious and Unanswerable Defences above written especially That all crimes are extinguishe dby death therefore it was necessary that this Crime should be Screwed up to the pitch of Treason that the Heirs might become lyable and in effect Forfeited by a greater Streach then the forme● It is then to be considered by what Reason this pretence can be supported which must necessarly bear the weight of the whole Claim●● And Imo. it is uncontraverted that Penal Statutes are not to be be extended de Casu in Casum * L 42 ff de poen l 19 ff de lib posthum haered instit and tho the Law affix a great Penalty to 〈◊〉 smal Crime it is to be inflicted licet durum fit quia ita Lex scripsit B●● to pretend from thence that every Crime as Heighnous of its o●● Nature or having any Resemblance to that which is exprest shou●● be punished by the same severity is such a Notion as never formerly entered into the Head of any Lawyer this were indeed to rende●● every Man uncertain in his Life or Estate and to make our Penal Laws altogether Arbitrary at the Apprehension of every Judge according to his Opinion and Estimation of the Crimes Lybelled 2do There can hardly be two Crimes having less of Parity or Resemblance one to another then that of a Malicious Accuser with an unjust Judge What Parallel can be imagined betwixt these two A Malicious Accuser is a Person who Offlciously and Unnecessarly obtrudes himself to Prosecute a Person for his Life and fortune a Judge is bound by the Necessity of his Office to give a Sentence which tho it may be found Unjust yet it is presumed to be per Impertiam out Imprudentiam and not by his Malice Fraud or Corruption as is above mentioned And that which is mainly considered in that Statute is the Officiousness of the Accuser of an Innocent Person and therefore tho His Majesties Advocate should prosecute a party with Rigour it is not understood Malice because he is in his Duty or Office so the Judge deciding is in his Office but the Fault is a Miscariage Which in all Law is esteemed to be an Errour in his judgement For by the Novel Constitutions a Judge was only bound by his Oath de Fideli to swear that he should decide secuudum quod illi visum fuerit justius melius and it s from that Reason that the Custom of all Nations have exeemed Judges from any Process upon their Sentences except in the case of Fraud or Corruption Arth Hodie C de Judiciis 3tio Let it now be supposed that the imaginary Parallel betwixt the Judge and Officious Accuser could subsist which is impossible yet that could found no Action against the Heir of the Judge upon King James the Fifths Act for that Act does only mention the case of Lase-Majesty And does provide that processes of Treason might be pursued against Heirs conform to the Common Law so that it must be considered what was provided by the Common Law as to putsutes of Treason against the Heirs of the Traitor It is true that both the Civil Law and Ours do recede from the general Rule That all crimes are extinguished by Death In the special case of Laese Majesty but neither of these do Authorize processes to be pursued against the Heir upon Statutory Treason as is clear by the last Law ff●●●d legem Juliam majestatis Is qui in reatu decedit integri status deced 〈◊〉 Extinguitur enim crimen mortalitate nisi fortè quis majestatis reus fuit hoc crimine nisi à successeribus purgetur haereditas Fisco vindicatur non quisquis legis Juliae majestatis reus est in eadem conditione est s● perduellionis reus est hostili animo adversus rempublicam vel principem a●● tus caeterum si quis ex aliâ cousâ legis Juliae majestatis reus sit mor● mine liberatur By which it Appears plainly that every Treas● not competent to be pursued against the Heir of the Traitor that which is specially called Laese-Majesty or Perduellion again●● King or Common-wealth But all other kinds of Treason su●● the Statute against False Accusers are extinguished by Death 4to But even suppose also that as the Crime lybelled were Tre●● so the pursut were Competent against the Heirs what Interest arise to the Earl of Argyl by this means the King's Majestie 〈◊〉 indeed pursue a Forfeiture and Gift it to the Earl but such n●●● Processess are not so much in Vogue but by what pretence th●● should by a seeming Condescendence Restrict the Claime of P●●ture to Damage and Interest passes all understanding for if Tr●●● be Incurred the Action arises not to the Earl nor can Dama●● pursued by him upon that Ground that the Heirs are liable as 〈◊〉 Case of Treason and after all the Earls pretended Bounty i● stricting the Lybel is wholly unprofitable to the Heirs the I ●●ges Acclaimed being far beyond the Value of the Defunct●● whole Estates It is therefore Humbly and Confidently expected from the Wisdom a●●stice of the High Court of Parliament That no Counten●● Incouragement will be given to the streached pretences in the Claime which are destitute of all Foundation in Law Civil ●●nicipal and without Example And which carry along more ●●ning Consequences to the Fame and Reputation of Judges who●● Honour and Credit to the Estates of their Innocent Heirs and Lives and Fortunes of such as are Alive then ever was pointed any former Case in this or any other Nation under the Sun

is denyed There is none living wh● can bear Testimony in that Matter except two Judges with them 〈◊〉 the same Court And the Question being who were the Judges guilty None of them can be sustained to liberate themselves by loading others And for this cause in the Tryal by an Assize of Error upon th● 63 Act 8 Par Ja 3 It is provided That the Assize shall be called and inquiry made at them if they did all agree whereby no particular Assysour could be singled out from the rest much less a g●●● fixed upon any Defunct who was not to answer for himself 2 do Our Munieipal Laws for punishment of Unjust or Neglig●● Judges are all in Relation to the Civil Administration of Jus●● betwixt Party and Party and not one of them does relate to the Justices in Criminal Mattets and on the contrare it is evident that by our Law no Judges or Assysours passing upon a Criminal Process can undergo any punishment if they Condemn but only in case they acquit the Pannell and therefore there is an Assyse of Error provided by the said 63 Act 8. Parl. Ja. 3. In case the Inquest contrare to manifest knowledge do acquit the Pannel but no punishment on the other hand And the reason is because the Sympathie of Humane Nature is thought sufficient to restrain both Judges and Jurors from Condemning the Innocent and this presumption hath so satisfied and filled the minds of the Lawgivers that there is no Statute providing any Remedy or Punishment against the Judge in that case 3tio In so far as the Petition is founded upon the Acts of Parliament of this Kingdom there doth not arise any Inrerest or Damnage to a Party prejudged by the Sentence of any Judicator how unjust soever but the summ of all the Acts of Parliament Lybelled in relation to the Judges amounts to this That Unjust and Negligent Judges may be punished by the King his Council in their Persons Goods or Fame according to the quality of their Offence at the King's Pleasure and where ever a Party is in general appointed to be punished any Fine or Pecunial punishment that can be imposed by that Law doeth fall to the Fisk unless the Law appoint a particular Application in whole or in part to the Person prejudged so that whatever were chargeable upon the Judges at the Instance of the King's Majesty there is no Action competent at the Instance of any Party for a private Interest or at most only for the Charges in Accusing and Prosecuting the Judge and for instructing this defence without repeating the several Acts of Parliament founded on the same are desired to be considered as they are Stated in the Bill without the Commentaries that are affixed upon them expresly Contrare and Inconsistent therewith And it is not pretended that any of these Acts do expresly found an Interest to the Party but after a full Relation of the Acts there is subjoyned a Commentary on them in these words Which no doubt doth farder import the Parties damage A rare Assertion and well founded that beside the Penalties exprest in the Act there is no doubt a farder Penalty imported thereby and there is 〈◊〉 more to make out this Position then a bare Assertion it is not u●ged from any former Practice or Precedent for the like was never p●●tended It is not aledged that in other Laws of this or any other N●tion where there is a special Penalty exprest or an Arbitrary punishment at the Pleasure of the Judge or Soveraigne that beside th● Special or Arbitrary punishment exprest there shall be a separate d●stinct Penalty competent so that this Position upon which th● weight of the whole Acts of Parliament cited is founded being wi●●out the least shaddow of Law Reason or Precedent the co●clusion upon it must fall in Consequence And the Defenders do up●● good Ground conclude that seing these Acts do not contain a●● Clause or Provision in Favours of the Party Injured That No Do●● they do not import any such Interest in Favours of the Party an● their Assertion is confirmed by the Acquiesence of all who in this 〈◊〉 any former Age have been Injured or Prejudged by the Sentence 〈◊〉 any Judicator who have never pretended to such a Redress and t●● Defenders Assertion is also confirmed by the Example of all Pe●● Laws which do never import any farder Penalty then what is speci●●ly exprest And without question the Earl's Claime is meerly Pe●● against the Heirs of the Judges who are no ways inriched by his l●●● or any Consequence of that Sentence 4to Albeit these Laws might infer a Punishment against 〈◊〉 Judges yet the same being merae poenae and falling to the Fisk m●●● be freely discharged by the King which was done in this case in 〈◊〉 far as the Sentence and Process of Forfeiture was approven by 〈◊〉 Act of Parliament 1685 and by the 31 Act of that Parliame●● All the Judges of the Nation Civil or Criminal were indemni●●● and secured anent their Actings in his Majesties Service and tha● 〈◊〉 fully as if every particular Crime and Misdemannour were specia●●● exprest in a Remission under the Great Seal Requiring all Jud●●● to interprete the said Indemnity in the most Ample and Favoura●●● Sense Which Act doth fully secure the Judges as to any Claim t●●● can arise either to the Fisk or even to a private Party by any Cri●● or Misdemannour Committed or Ommitted in their Office A●● no Rescision of the Forfeiture can found any Action against the Judges who are as amply exonered As if they had been pursued and undergone the severest penalty of the Law 5to In so far as the Lybel is founded upon the Common Law it does appear that the Earl has laid very little weight upon it seing there is no special Citation adduced from that Law for inferring the Conclusion And indeed there was no reason to Rely upon it For 1 Albeit by our Customes great Recourse be had therteo where we have no positive Law of our own yet in this and all other cases where we have special Statutes we are to be Regulate thereby and whether the Penalties therein exprest be more or less then what is contained in the Civil Law it is of no importance so that if by these Special Penal Laws of this Nation mentioned in the Bill the Representatives of the Judges be not lyable they cannot be subjected to any Punishment by the provision of the Civil Law 2. It is true that several Texts in the Civil Law do subject an unjust Judge to severe penalties which do distinguish two cases either the same is pronounced per imprudentiam in which case the Judge is not simply lyable in estimationem litis for the full dammage and interest Sed in quantum Religioni judicantis visum fuerit * l ult ff de extraord coquit Inst de oblig quae quas ex delict in prin Or otherwise the unjust Sentence was pronounced