to try the matter and men yet those Commissions do not restrain the Commissioners to proceed only against those persons and upon those particular crimes which the common fame hath rendred Hac vice to be Tryable but run in general terms and with general enablement to try all manner of Treasons Felonies c. And the Reason is 1. For that it might possibly fall out that a grand Jury will not find the Bill against Jo. at style and if not the Commissioners are sent down without their arrant if only directed to try J. S. 2. It may fall out that where there are Treasons or Felonies commited by Jo. St. they may be accompanied with misprisions or misdemeanors in Jo. O. And if the particular crime of Treason and the particular person of J. S. be only authorised to be enquired of then the Commissioners can do but half their work And therefore this Commissionary power of yours My Lord the ordinary Courts being not obstructed and you limited to particulars is so far against the Common Law and usage that it is against common and vulgar reason and pardon that I must say it savours more of a Snare then of a Law and more of a warrant of Arbitrary Execution then of an enablement to and for a judicial and legal Proceeding or Tryal The Fifth Argument My Lord In all Courts of Justice as there is supposed to be an equality intended to such as shall fall under their Cognizance and Enquiry which is a principle of merality innate as well as a practical Policy so there have always in this Nation at least beyond memory or indeed record to the contrary been certain Oaths Obligatory and of indifference administred to Persons either enquiring of or passing judgment against or upon the Subjects in all cases whatsoever and the same thing is but necessary in your Lordships and this Court to be done if at all you will proceed in so weighty a matter as life against which I make this exception 1. If you are at all sworn you are not sworn in Conspectu and if you will be my Jury and my Judges also I ought to have a satisfaction that you are so sworn Had you been only my Judges and constituted after the ordinary manner and to ordinary ends I would have taken your being sworn for granted 2. If you are sworn and to no other words of an oath then what are comprised in the Act which my self and all men else will easily believe you are not then you are not sworn to any manner of Equality The words are You shall swear that you shall well and truly according to the best of your skill and knowledge execute the several powers given unto you by this Act I beseech your Lordship that I may compare these words with the Oath of Judges in England when it was a Kingdome The words Pertinent only are these You shall swear that well and lawfully you shall serve our Lord the King and his people in the office of Justice c And that you deny to no man common Right by the Kings letters or none other mans nor for none other cause c. I A. B. do swear that I will do equal right c. according to my best Wit Cunning and Power after the Laws and Customs of the Land and the Statutes thereof made c. My Lord these will concern you as my Judges to consider how little the stiles agree how far your Oath is in respect of these unobligatory and consequently unsatisfactory to the persons which are or shall be concerned 1. As to the first yours contains no such words of Equality 2. As to the second oath yours hath such words as skill and knowledg holding some resemblance with those of wit cunning and power But my Lord if your words were as well usher'd and as well paged as those it were some satisfaction viz. To do equal right according c. After the laws and customes of the Land and the Statutes thereof made My Lord as you are my Tryers also as well as my Judges I beseech you to observe the oath of a Juror and the difference in sence in letter I know for the dignity sake it ought to differ You shall well and truly try and true deliverance make between our Soveraigne Lord the King and the prisoner at the Barr c. I presume it is still the same mutatis mutandis Truly my Lord when I look upon your enablement to try the matters and persons which and whom you are to try you have power to destroy and not to save though â—o spare yet not to acquit or discharge and your obligation by oath to execute that power according to your best skill and knowledg I must needs say and it is apparant that when you have destroyed me you have discharged all the duty that man can exact from you though God will have a better reckoning and in stead of being tryed by sworne Jurors and adjudged by sworne Justices my self and all who are or may fall into my condition are to be tryed by our sworn Adversants I might have said sworne enemies and we cannot in reason expect more Justice then when the Son layes the wager the Mother keeps stakes and the Father is Judg in a point of controversie More and better you may do more or better we cannot by any light of reason expect The Sixth Argument BUt my Lord if all this be but wind against a Rock and move you to no declining of the exercise of your Power though against my right yet certainly my Lord where your power and my right may be consistent you will not stretch your power to the taking away of my right but rather by giving me my right magnifie your power This I may reasonably expect It is my right granting you to be my Judges to be tryed by my Peers the good men of my neighbourhood and it is in your power if your power be not inward to try me so That this is my right I must revisit Magna Charta Nisi per legale Judicium Parium suorum The Law of Edward 1. having confirmed the great Charter saith And we will that if any judgment hereafter be given contrary to the Poynts of the Charter aforesaid by the Justices or by any other our Ministers that hold Plea before them against the Poynts of the Charter it shall be undone and holden for naught And upon this very Law or Clause a writ of error was brought by the Earl of Lancaster for the misattainder of his brother whose Heyre he was and in that the Poynts were two and upon them both judgement given for a reversal 1. Quod non fuit araniatus ad responsionem positus tempore pacis eo quod cancellaria alia Caria Regis fuerant aperta in quo lex fiebat unicuique prout fieri consuevit Attinctus 2. Quod condemnatus sivi adjudicatus
King Henry the Third The great Hugh Speneer in the raign of Edward the second was banisht but for rashly counselling against the Encounter la forme de la granda Charter And to draw downwards yet one Kings Reign and to the point to which I would apply I find in the 42 year this great Charter was not only barely confirmed and commanded to be kept in all the points for those are the words But to prevent any alteration of it is enacted That if any Statute be made to the contrary that shall be holden for none By this Magna Charta it is granted and Enacted too if my Lord Cook say true who saith it is a Statute as well as a Charter being made by Assent and Authority of Parliament That No Freeman shall be taken or Imprisoned or be disseised of his Free-hold or Liberties or Free-customes or be outlaw'd or exiled or any otherwise destroyed nor shall not pass upon him nor condemn him but by lawfull judgment of his Peers and by the Law of the Land We shall sell to no man nor deferr to man either Justice or Right If this be Truth and Law which I have in these particulars promised to you then my Lord give me leave to take notice That by that Act by which you are constituted a Court of Justice you are authorized to try the Freemen of England not per Pares upon or for offences against Articles and the punishment to reach to life as the Major part of any 12 of the Commissioners shall judg to appertain to justice Laying these together a Posting Rider may Read that these Lawes are diametrically opposite and consequently inconsistent The latter hath its doom inherent by its innate contrariety to the former and is a building a superstructure so unsutable to the foundation that if it had not a double edged support it need no help to be demolisht but would fall I know not whether to say sua mole or sua pensilitate The Constitutors of this Law are Gladiis cincti and therefore as I am not in opportune place to speak to them so there is somthing of danger to speak too freely to them but my Lord your Lordship as you are in this place are I am sure ought to be like the Escochions of Princes with their addopted Supporters Knowledg and Conscience and if you are I am confident you will doubt of your Commission or warrant to proceed against me and compel me to preserve an inch of life by giving away mine and my Countrymens Liberty in condescending to a Plea and Tryal in this contra-legal way and by power of this Act The second Argument My Lord I Shall further beg leave to call to your memory the Petition of Right which was made the business of the Parliament at the time when it was preferred and received the Royal assent must never be forgotten by those who hold in esteem the care of Parliaments and gracious concessions of Kings In the Proeme or leading part of that Petition the Statute of Magna Charta is instanced as to this particular tryal for life by proper Courts with other the Laws and Statutes some of which I have cited and the rest shall upon another point in their place and as it is complained that proceedings had been by Commissioners Martial when and where if by the Laws and Statutes of the land they had deserved death by the same Laws and Statutes also they might and by no other laws ought to have been judged so is it prayed and accordingly enacted That no Commissions of like nature may be henceforth issued to any person or persons whatsoever to be executed c. and this to prevent least by colour of them any of the Subjects should be destroyed or put to death contrary to the laws and franchize of he Land My Lord 1. The Commissions Martial were not evil in respect of the persons commissioned being as this power is to you so those alwayes given to persons of quality and learning but the evil of them were their Proceedings by their own will and opinion being themselves the Judges and the Jury offices incompatible and inconsistent with the peoples Liberties by the former Laws become their rights when your Lordships shall read the Act by which you now sit I am confident you will grant this power to be of the same nature though not under the same name and consequently in that Petition complained of in supposition that such might be and enacted against in Terminis that none such should be 2. For that you are called by the Act Commissioners and yet have no Commission but the Act it self whereas you should in regard you are not a Court of Record in your selves have Commissions returnable at a day into some Court of Record where your proceedings might be extant and visible as you are now constituted you have a day prefixed to determine in but that being come you are to vanish your vestigia will be as inperceptible to the times and men to come as the trace of a Swallow in the Air which is inconsistent with the honour and justice of any Kingdome or of any Christian Commonwealth For that you have only by this Act a bare and single power to adjudg and cause execution to be done in case you shall judg it to appertain to justice but you have no power if you think it appertain to justice to acquit and upon acquittal to discharge the person tryed as is the law expresly in my Lord Diar and in the year-book of Edw. 4. grounded upon the Statute of Henry the 6th 14 of his reign Ca. 1. That Justices of Nisi prius who are Commissionary Justices shall have power of all the cases of felony and of Treason to give their Judgment as wel where a man is acquit of felony of treason as where he is thereof attainted at the day and place where the Inquisition Inquest and Jury shall be taken and then from thenceforth to award execution to be made by force of the same judgments which in an acquitted mans case can only be enlargement But my Lord you have only power if you can to reach my life if in your opinion deserving it but not to reach me out of Prison so that if you kill me not here with the sword of Justice you must leave me in worse hands to be buried alive in restraint and want Which all is against the laws of Nature and Nations and particularly of this land that are all so ballanced and poysed as that they have equall regard to the delivery and freeing the Innocent as to the condemnation of the nocent And Isadore in his Etimologies sayes of a law thus Erit autem lex honesta justa possibilis secundum naturam et consuitudinem patriae Loco temporique conveniens necessaria et utilis manifesta quoque nê aliquid incantum per obscuritatem captione contineat nullo privato commodo
and of Queen Elizabeth and of Edward the sixth Now my Lord an evidence either taken in writing as the person will voluntarily give it or cautiously taken as the examiner will ask it who is not sworne to take it indifferently no more then the framers of the questions are to propound then fairly may be a seeming faire opposite and a full testimony which upon enquiry into circumstances either concerning the person giving testimony or concerning the Modus the Vbi the Quando c. the whole laid together may prove either nothing or a malitious thing The Case of Sir Thomas Moor Lord Chancellor accused for Bribery is common and I hope if mine have faire play it will prove no worse 3. The third and last right and priviledg you take from me is the many of all the rest and to the making of which as it should be made up all the rest are but conducing and leading that is of a faire Verdict My Lord By a Jury a verdict passeth from all or not at all one knowing conscientious man may preserve that Innocent man whom eleven either ignorant or careless men would destroy This Courts sentence is to be stated by number of voyces and some of them possibly not judging their own Judgments but concurring where their opinion of anothers Judgment shall lead them which as it was the great evil of the late Court of Star-chamber so wheresoever it is used in tryals of life especially it is and can be no other then an evil My Lord By from a Jury a verdict passeth before their discharge upon their necessary affairs nay affairs of nature therefore will give it both the righter because their evidence is fresh in memory without the intervention of other matters as also for that they are without opportunity to be perverted by money or friendship If this Court receive the evidence to day they may at any time before the 29 day of September next give their sentence for vere dictum I never expect but from a Jury and in the mean time how much their own affaires may put the remembrance of me out of their heads and how much the States power may put my safety out of their hearts I have just cause to suspect for fear I will not being resolved never to be in love with that life which the common law of England cannot protect and had rather die the Laws Martyr then live the States slave The Close My Lord I have said and now it only remaines that I tell your Lordship that I desire you to take into consideration what I have said that you would not suddenly but deliberately give your Judgment Whether I ought to plead before you as Judges and to the charge in Articles and not in a presentment or Indictment whether to be tryed without a Jury condemn'd upon evidence unseen Which this is I desire it may be recorded As I do not now wilfully refuse to plead or answer but offer my reasons for the suspension of my Plea until your judgment in the points be known and pronounced so if I be in them overrul'd I shall then give such Answer to the charge as shall become a man in my condition Fiat voluntas Dei modo in ruinâ meâ Eus. ANDREW 3. 7. 2. 1650. Here the Att. Gen. Prideaux put a stop to Mr. Andrewe telling him that the Court was not at leasure to take notice of those law cases but of his confession that he had an affection to act though nothing acted was sufficient Treason and for that affection he deserved death and thereupon the Court pronouned sentence against him Thus was the Birth-right of the Freeman of England denyed by most cruel murtherers whose only will was their Law IF I be overrul'd by the Court that I must either answer or be sentenced for my wilfulness Then I move that I may have a Copy of my charge and a day assigned me to deliver in my Answer under my hand Upon these Reasons 1. If the Court proceed upon Articles they cannot in reason conceive that I can plead the general issue to particulars for in so doing in case I be convinced of any one Article I shall receive the doom of all 2. For that De facto some of the Articles may be true yet de modo they may not be valuable against me and upon the general issue I shall not be received to qualifie fact with circumstance so in stead of being allowed the freedom of my defence which is allowed to every thief at Newgate I shall be tryed and snared by such confession or proof as will serve the turn of my prosecutors and not preserve my self by making my self and actions understood The Articles are of several kinds and crimes and as one single Plea will not be applyable to them all so it is but requisite that I have a Copy of them to give thereby to each one his proper Answer which though in Indictments is not allowed yet in this way of proceeding was never denyed in the most Arbitrary Courts The Council Table gave a charge and received answer in writing in cases of contempt against themselves or their commands The Star-chamber afforded the Defendant a Copy of the Bill and liberty to examine and cross examine witnesses in case the fact charged were denyed by the Answer The High Commission the like by their Articles and proceedings upon them My Answer if not in writing may either not be understood or misapprehended or miss set down by the Clerk to my prejudice If this be denyed me then I must conclude they intend to wipe of my head with the smooth glazed sword of pretended Justice and must apply my self to my memory in reference to the charge and shall hear it read which by my own knowledg of what hath passed between the State and me I may conjecture and therefore prepare these following heads to help memory which in a case of so much concernment is not totally to be relyed upon First As to what may be alledged against me in general terms as a disaffected person and oppugner of the State or otherwise c. There are two things which draw subjection and oblige persons to a Commonwealth 1. Protection in the State 2. Personal engagement or fealty in the Subject First Protection I have received none but stand in the condition of a proscribed person 1. State if any sequestrable and not permitted by the laws of the nation to vindicate it 2. Calling taken away which the Turke would not have done had he been conqueror 3. Dwelling not permitted where I can subsist but where I may be obnoctious to want and to the States infliction of punishment when they shall take occasion to repeat upon me any thing which they shall call a crime in reference to my passed Actions for the late King and my now Soveraign 4. Right I can have none unless I will
sed per communi civium ultilitate conscripta And as laws should be so should Courts and the dispenseâ—… of laws be But my Lord if this Court must be granted to be a Court your selves can make no more of it then a Court ex parte and set up to serve a particular end with the privation of the common utility and liberty however usher'd with a preamble of an other stile of preservation of peace and prevention of wart but Thucidides will tell you my Lord in his fourth book That Turpius est his qui impia tenent insidiare honesto pertextu quam insidiosâ mallevolentiâ uti nam violentia videtur aliquid furis habere propter potentiam â fortunâ datam sed fraus tantum ab injustitia oritur The Third Argument BUt my Lord if your Lordship be in your judgment and conscience satisfied that the Act it self in and as to its constitution is good and valuable and impowereth you sufficiently to proceed against me some way then Argumenti ergo dato sed non juris ergo concesso that it is a law or an Act and that all those Ordinances are out of doores yet I pray your Lordships leave that I may make evident to your Lordship that you are not hereby constituted a Court capable in defect of the very letter of the Act to pass upon any man and consequently not upon me in matter of life or where life may may be the concernment 1. For reason you are not constituted a Court of Record which is absolutely necessary having life and forfeiture of lands in your charge First For the State that they may have an account not in their Council-chamber but upon Record what is become of the matter in issue and of the person put upon his Tryal 2. For the Freeman of England that in case he be acquitted of the crime wherewith he shall stand charged before this Court he might at all times resort to the Record upon any new question for the same Fact in any other Court holding Pleas of that nature by which Record to plead his Auterfoyes acquitte and to make his defence as also to preserve his estate Si non legalment aquitte eu le Poulters Case 9. R. Benegist demant acquittal nul req si non de Record as also my benefit a writ of Conspiracy To come nearer our own times the like cause to complain and the same redress is given in the Act for abolishing of the Star-chamber upon the grounds and reasons drawn from these Laws the Innovations and Invadings upon which as being Fundamentals was a great part of the substance of the grand Remonstrance communicated to the whole World against the late King by the Press The charges against he Earl of Strasford and the Arch-Bishop of Canterbury The interest of the Subject in these laws was cryed up to be so precious as that it had influence even to the absolving of all old Oathes and the imposing of new and to bring to adventure Estate and Life and soul rather then to be usurped or in the least intrenched upon Four several Declarations of the present Parliament have entitulated the subject to them and to the benefit of the ordinary Courts of Justice as their Birthright I have owned the preservation of them to be the Cause of the War and the ends of their affairs managed by their Swords or Councels and Gods curse is by them imprecated in case they should ever decline the Ends My Lord We have the Parliaments word and promise not to interrupt the course of Justice in the ordinary Courts And in the Ordinance of Non addresses to the late King they say Though they lay the King aside yet they will Govern by the Laws and not interrupt the Course of Justice in the Ordinary Courts thereof My Lord I am entitulated to all these Laws and these Promises and Declarations and if this Court proceed against me those notwithstanding the Ordinary Courts of Justice being open and unobstructed I am robbed and divested of them all and in me the Freemanry of England are all despoyled at the Parliaments will according to this president disployleable and may with Mr. Stampsord in his Pleas of the Crown take up this saying It will serve for a Lamentation Misera servitus est ubi jus est vagum incognitum The Fourth Argument THomas Acquinus who though a Papist is not the less worthy to be vouched where not Religion but Pollicy is the thing in question Sayth That Lex est regula mensura actuum agendorum vel omittendorum not Actorum and Omissorum And St. Paul says Concupiscentian nesciebam nisi lex diceret non concupisces My Lord your Authority is in two several places to proceed against as Traytors such who have broken the Articles before they were made viz. Whosoever hath or shall I lot Contrive or Endeavour c. Whatsoever Officer c. hath or shall desert their trust c. shall dye without mercy And thus my Lord the end of Laws and Law-makings is perverted which are not meerly to punish offenders but to prevent offences which amongst Christian men was never otherwise done but by way of premonition by laws first Interdictory and then Subpenatory The Earl of Strafford did and very reasonably take it unkindly and so exprest himself upon his Trial That a neglected Law should lie moulding amongstold parchments 200. years unused and unexercised and at last brought out to measure his passed Actions by or to use his own words To lye like a Coal raked up in the ashes to be at pleasure blown into a flame and to make him and his family the first fewel to feed it Truly if he had seen these Articles as he felt after somwhat like them he would have cried out and but modestly enough That it is not the mending of the fault but the destruction of the person which is manifestly defigned in these Articles of Retrospection Disusage of a law is some excuse for him who falls into a transgression but the non existence of a Law is a Justification to the greatest offence And my Lord as you are to look backward to Actions done before the Law made so you are to take Cognizance of offenders against two former Acts which make the Crimes therein certain in the matters of fact fault and punishment and if they be lawes they must be deemed part of the lawes of the Land and desireable and dispensable by the ordinary Courts of the Land in cases Criminal for extraordinary Courts of that king have long since even by the Parliament of which this is the sarviving part been denied And although it is true that when some particular fact is committed by some one or more particular persons against the laws Crimiâ—al it often falls and properly enough that especial Commissions of Oyre and Terminer are for some urgent and expedient reason issued