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A26252 An Authentical account of the formalities and judicial proceedings upon arraigning at Westminster, a peer of the realm before a Lord high-steward 1680 (1680) Wing A4264; ESTC R25898 19,733 37

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of their Oath requires it who are sworn that they shall well and lawfully serve our Soveraign Lord the King and his People in the Office of a Justice and that they shall do equal Law and execution of Right to all his Subjects QUERY X. Whether an Attainder of Treason may be falsified by the Plea of the Party SOL. A. 1. Mar. A Commission of Oyer and Terminer in London was directed to Sir Tho. White Lord Mayor and to divers others reciting that where Sir Robert Dudley Knight 9 Jan. 1. Mar. was Indicted of High-Treason before Thomas Due of Norfolk and fourteen other Commissioners in the County of Norfolk where in truth the Commission was directed to so many but the Indictment was taken before Eight of them only granting to them or any four of them Authority to receive the Indictment taken before fifteen Commissioners and to proceed thereupon as Special Justices of Oyer and Terminer by pretext whereof they proceeded and upon confession of the said Sir Rob Dudley gave Judgment against him In this Case it was adjudged that Sir Rob. Dudley then Earl of Leicester might falsifie the said Attainder by Plea because it was void and coram non Judice for that the latter Commissioners had not power to proceed upon an Indictment taken before Eight but before Fifteen and so void The Party is not driven to his Writ of Errour but may falsifie the Attainder by Plea shewing the special matter which proveth it void ut supra In which case the party forfeiteth neither Lands nor Goods 'T is holden by some that if a person be attainted of High-Treason by the Common Law that no Writ of Errour should be brought for the reversal of that Attainder by reason of these words in the Stat. 33 H. 8. cap. 20. And if any person or persons shall be attainted of High-Treason by the course of the Common Law c. that every such Attainder by the Common Law shall be of as good strength value force and effect as if it had been done by Authority of Parliament But the contrary hereof was resolved at a Parliament holden A. 25. Eliz. that a Writ of Errour should be maintained for the reversal of Erroneous Attainders of High-Treason by the Common Law for that former Stat. is to be intended of lawful Attainders and not where there is any Errour in the same for by that of the Queen 't is provided That no Record of Attainder of any person or persons of or for any High-Treason where the party so Attainted is or hath been executed for the same shall be c. in any wise hereafter reversed undone avoided or Impeached by any Plea or for any Errour whatsoever QUERY XI Whether torture in case of Treason or Felony may be used by our Law SOL. Sir John Fortescue Chief Justice of England who wrote in commendation of our Common Laws preferreth the same for Government before the Civil Law and particularly that all tortures were against the Common Law expresly and he proceeds to shew the inconveniencies and mischiefs thereof by fearful examples to which Learned Author I refer your Lordships Cap. 22. It is against Mag. Charta Cap. 29. which says Nullus liber homo capiatur vel Imprisonetur c. aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus nisi per legale Judicium Parium suorum vel per Legem Terrae And accordingly all the Ancient Authors are against the inflicting pains and tortures upon Prisoners before or after Attainder Co. 3. Inst f. 35. but such as answer the Judgment John Holland Earl of Huntingdon was by King H. 6. created Duke of Exeter and A. 26. H. 6. the King granted to him the Office of the Constableship of the Tower of London He and William de la Poole Duke of Suffolk with some others intended to have brought in the Civil Laws and for a beginning of the same the Duke of Exeter first brought into the Tower the Rack or Brake allowed in many cases by the Civil Law and for that reason it was called the Duke of Exeter's Daughter QUERY XII Whether the King under the Great Seal may command all Process in Criminal Causes to cease SOL. We find says Coke a Discharge of further proceeding directed to the Judges of the Court c. not by way of pardoning the offence but by the King's acknowledgment under the Great Seal of the Parties Innocence with Commandment to the Judges that in the former proceedings they shall altogether surcease whereupon the Court will award that the Party shall go sine Die and that there shall be no further proceedings against him William de Melton Archbishop of York was accused in the King 's Bench coram Rege Concilio suo in Anno 3. Ed. 3. for adherency to Edmond Earl of Kent in his Treasons whereunto the Arch-Bishop pleaded Not Guilty and after two Writs of Venire Facias awarded the King directed his Writ under the Great Seal to the Judges of the King 's Bench to this effect Licet Venerabilis Pater Willielmus Archiepiscopus Ebor Stephanus London Episcopus per Diversa Brevia Nostra coram Nobis ad sectam Nostram Implacitentur de eo quod ipsi Edmundo Comiti Cantiae adhasisse debuerant quia tamen praedict Archiepiscopus Episcopus de adhaesione praedicta omnino Immunes reputamus Vobis Mandamus quod placitis praedictis coram Nobis ulterius tenend omnino supersedeatis Teste meipso c. The Award of the Court hereupon is very observable Viz. Cujus Brevis praetextu consideratum est quod praedictus Archiepiscopus eat inde sine die c. ulterius non procedatur versus eum Stephen Gravesend Pasch 4. E. 3. Rol. 5.3 Bishop of London was charged with the same offence in Parliament A. 3. E. 3. whence by Order of parliament he was referred to the King 's Bench to be tryed where he pleaded Not Guilty and after was discharg'd as the Arch-Bishop It may be thought that accepting the Pardon might be an implication of their fault and therefore it run in a new strain but no man that is well advis'd says the great Oracle of the Law will refuse God's or the King's Pardon for in the King's displeasure there is death says the Holy Writ and who knows how often he offends and consequently stands in need of it But how far this Branch of the Prerogative may be extended and what qualifications it may admit belongs not to a private man to determine QUERY XIII Whether a Person can be Attainted of High-Treason by general words SOL. Where by due course of Law a man cannot be Attainted of High-Treason unless the Law fore-judge the offence such he ought not to be Attainted by general words by Authority of Parliament as sometime hath been used but the Treason ought to be specially expressed seeing that the Court of Parliament is the Highest and most Honourable Court of Justice