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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	king_n	law_n	lord_n	4,135	5	3.8427	3	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A75331	The several arguments at lavv of Col. Eusebius Andrewe at his tryal, before John Bradshaw, president of the pretended high court of justice shewing the illegality of their proceedings, and passing sentence of death against him. Published by Francis Buckley, Gent. who was assistant to Mr. Andrewe in the time of his imprisonment, and an eye witness to all the said most bloody and execrable proceedings.	Andrews, Eusebius, d. 1650.; Bradshaw, John, 1602-1659, attributed name.	1660 (1660)	Wing A3117A; ESTC R231612	53,671	79

Art 1. is the thing in question Sayth That Lex est regula mensura actuum agendorum vel omittendorum not Actorum and Omissorum And St. Paul says Concupiscentiam nesciebam nisi lex diceret non concupisces Rom. 7.7 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 Plot Contrive or Endeavour Art 2. Art 7. 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 amongst old 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 designed 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 kind have long since even by the Parliament of which this is the surviving 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 Criminal it often falls and properly enough that especial Commissions of Oyre and Terminer are for some urgent and expedient reason issued 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 morality innate as well as a practical Policy so there have always in this Nation at least beyond memory or indeed record to the contrary Not sworn 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 The Oath of the Commissioners according to the best of your skill and knowledge execute the several powers given unto you by this Act. I beseech your Lordship 18 Edw. 3. 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 Oath of Justices 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 Dalton J. P. fol. 13. 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 Oath of a Juror and the prisoner at the

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 R●ades Case D●ar fol. 120. 10 Edw. 4. fol. 19. 14 Hen. 6. 1. Oath of a Juror 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 sed per communi civium ultilitate conscripta And as laws should be so should Courts and the dispense●s of laws be But my Lord if this Court must be granted to be a Cour● 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 warr 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 Juris habere propter potentiam â fortunâ datam sed frans 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 Wetherel and Darly's Case 35. Eliz. Apeal de mur●er convict de Homocide bon b●r ●l endictment per murder Affirme quo ho●re ne doit m●t●e presua vic Deux fois per unchosen 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 en le Poulters Case 9. R. Benegist demant acquittal nul req si non de Record as also my benefit a writ of Conspiracy 17 Car. Act for abolishing Star-chamber 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 Articles contra Strafford Art 1 2. partis 1. 14 parti secundo The charges against the Earl of Strafford 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 Declar. D●c 15. 1641. Jan. 17. 1641. 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 July 12. 1642 Oct. 23. 1642. 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. Declar. April 17. 1646. My Lord We have the Parliaments word and promise not to interrupt the course of Justice in the ordinary Courts Jan. 1648. 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. Stampford 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 Beat. Thomas 1. 2. Q● 90.

Tryal per Pares but left to do the manner of the Tryal as well as the Judgment or Execution as you or the major part of you or 12 of you shall judge to appertain to justice And if such major part shall think fit to proceed by Presentment and Jury doubtless such your proceeding is no Premunire against the power given you by the Act but is justifiable to fall within the letter of the Act and that without a strained construction 4. And if when you may lawfully I mean by your own law if Argumenti ergo it be granted a law try me by a Jury and will not then my Lord pardon me that I must aver that you take from me and in me from the communalty of England three great priviledges Franchise and Rights to which I and they are by the known ancient and unabrogated unrepealed and constantly practized laws entitulated which will be neither equitable nor honorable for you to do 1. You take away the benefit of challenge Benefit Challeng which I might make to a Jury or Jurors Stam. pl. Cor. T. Chaleng fol 150. And that is contrary to my righr which is given me by the Common Law In favorem vitae to challenge in case of high Treason for I go no less 35 peremptorily and for reason of challenge Sans Number Poynings Case This was adjudged in 32 Henry 6. abridged by Fitz Herbert fol. 26 per Challeng where 8 Jurors were sworne the rest challenged a new return made and those 8 returned and though formerly allowed and sworn yet challenged and adjudged good Sir Wal. Rawleigh Brookes The like allowed in Hill 1. Ja. in the Cases of Sir Walt Rawleigh and Brooks If this benefit were allowed me my Lord to except or Challenge the whole Court who are in number and in quality my tryers as a Jury are I should not need to be peremptory in my challenge being furnished with abundant reason A Jury of Middlesex will be no more nor less if what I am accused to have endeavored should take effect and therefore are not less concerned I cannot say the same of the Court or if I should I should not be believed and he that but whispers against Diana at Ephesus makes all the Crafts-men his enemies Acts. C. 19. 2. The second benefit and right which by denying me a Tryal per Pares you take from me is the benefit of seeing hearing and counterquestioning the witnesses produced against me which in such way of Tryals ought to be viva voce Stam. P. C. fo 163 164. St. Ph. and Ma. 1. and 2. C. 10. 1 Ed. 6. C. 11. Clav. fult Cook 3. p. Inst fol. 12. Stam. P. C. 164.89 1 Ed. 6. C. 12. 1. and 2. Ph. and Ma. 10 11. 1 Ed. 6. and 16. Eliz. 1. That such is the law Mr. Stamford averreth in his Pleas of the Crown And In treason two sufficient witnesses by the Stat. of Edward the sixth sufficiently in relation to their quality and to the fulness of their testimony Sir Edward Cooke an Author as authentick as any puts this for law in his expositions of the words in the Statutes for Treason Provablement attaint Because the punishment was great the proof should be punctual not upon presumptions or inferences or straines of wit but upon good and sufficient proofes And this he makes good by the Authority of Stamford and the several Statutes of Philip and Mary 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