Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	action_n	case_n	verdict_n	3,368	5	11.5648	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A36769	An argument delivered by Patrick Darcy, esquire by the expresse order of the House of Commons in the Parliament of Ireland, 9 iunii, 1641.	Darcy, Patrick, 1598-1668.	1643 (1643)	Wing D246; ESTC R17661	61,284	146

meane and mediocritie which regulated the power of that great Court in former times had not beene of late converted and strayned unto that excesse wee saw these questions had never beene stirred but many things being extended to their uttermost Spheare or I feare beyond the same enforce mee although unwillingly and slowly to looke upon our lawes and just rights The answer to the sixteenth viz. whether Iurors giving their verdicts according to their conscience may be punished in the Castle-chamber by fines excessive mutillation of members c. I finde in my Lord Barcklayes case placit. Com. 231. from the beginning the usuall tryall at Common-law was devided betweene the Iudges and the Iurors matters of fact were and are tryable by the Iurors and matters in law by the Iudges the antiquitie of this tryall appeares Glan fol. 100. b. in Henr. the seconds time Bracton 174. Briton fol. 130. a. Fortescue de laudibus legum Angliae fol 54. 55. So much being cleared they being Iurati ad dicendum veritatem are Iudges of the fact Co. 9. 13. a. Dowmans case 25. c. Strata Marcellas case and infinite other authorities they are so farre Iudges of the fact that although the partes bee estopped to averre the truth yet these Iudges of the fact shall not be so estopped because they are upon their Oath Co. 2. 4. b. Goddards case Co. 4. 53. a. Raw-hins case 1. Henr. 4. 6. a. c. They are so far Iudges of the fact that they are not to leave any part of the truth of the evidence to the Court Co. 1. 56. b. Chauncellor of Oxfords case nay they may finde releases and other things of their knowledge not given in evidence 8. ass plac 3. Co. 10. 95. b. Doctor Leyfields case what is done by Iudges shall not bee tryed by Iurors Co 9. Strata Marcellas case 30. Ergo è converso but if any doubt in law ariseth upon the evidence there is a proper remedie by bill of exception by the statute of VV. 2. cap. 30. which Co. 9 Dowmans case fol. 13. a. saith to be in affirmance of the ancient Common-law as to this point of law the Iudges of the law are Iudges of the validitie of the evidence but under favour not of the truth of the fact as it is set forth in the answer if the Iudges of the law doe erre in matter of law the party grieved hath his remedie by writ of error but hee is not punishable if practise or misdemeanor doe not appeare 2. Rich. 3. fol 9. 10. Fitz Natur. br 243. E. 27. ass 18. 4. Henr. 6. and other bookes by the same reason the Iudges of the fact if they goe according to their conscience as our question is stated if the Iury in this case goe contrary to their evidence the Common-law gives a full remedy by attainte wherein the judgement is ●ost heavie if the Iurors have done amisse as I said before to another question yet in this action the law gives credit to the verdict before it be falsified for if a judgement be given upon this verdict and after an attainte is brought no super sedeas can bee in this writ to hinder the partie who recovered from his execution 5. Henr. 7. 22. b. 33. Henr. 6. 21. otherwise in a writ of error Your Lordships therefore may see what faith is given to verdicts at Common-law I observe the notable case of 7. Henr. 4 41 b. where Gascoigne answereth the King that would give judgement contrary to his private knowledge As for the next part of these two questions it was the late height of punishments and the drawing of more causes to that Court then in former times moved this debate out of the statute of 3 Henr. 7. cap. 1. concerning this Court I make these observations first that the Iudges of that Court according their discretion may examen great offences secondly that they may punish according to the demerits of delinquents after the forme of the statute thereof made thirdly in like manner forme as they should or ought to be punished if they were convict by the due order of the Common-law For the first what discretion this is we finde in our books Co. 5. fol. 100. Rookes case discretion is to proceede within the bounds of law and reason at Common-law a Man in a Leete is fined but in ten groats for a light bloudshed in the Castle-chamber a Noble-man for an offer of a switch to a person inferior to him upon provocation perhaps given was fined in foure thousand pound committed to long imprisonment and low acknowledgements were imposed on him For the second and third observations if men of quality and ranke were pillored papered stigmatized and fined to their destruction in cases where if they had beene convicted by due order of law they could not be so punished by any law or statute I humbly offer to your Lordships sad and grave consideration And whether these courses be warranted by the said statute of 3. Henr. 7. cap. 1. or by any other law or statute of force in this Realme and if all Iurors bee brought to the Castle-chamber what shall become of that great and noble tryall by which all the matters of our law regularly are tryable And so I conclude that the answers to these two questions are not satisfactorie Whether in the Censures in the Castle-chamber regard be to be had to the words of the great Charter viz. salvo contenemento c. I conceive that in the Censures in the Castle-chamber regard is to bee had to the words of the great Charter viz. Salvo contenemento c although in the great Charter and in the statute of VVestminst 1. cap. 6. amerciamentum and misericordia are expressed and not fines or redemptio because a fine and an amerciament are in the old yeare bookes used promiscuously as Synonima for one and the same thing and therefore in 10. Edw. 3. fol. 9. 10. The Iurors of the Abbot of Ramseis Leete being sworne and refusing to present the articles of the Leete were amerced and there it is resolved because all did refuse to present all shall be amerced but when the same shal be imposed or affeared shall bee imposed severally upon each of them secundum quantitatem delicti salvo contenemento suo yet the summe there imposed was revera à fine and not an amerciament as an amerciament is now taken and here with agrees 4. Eliz. Dy. 211. b. in these words if the Iurors of a Leete refuse to present the articles of the Leete according to their Oath the Steward shall assesse a fine upon every of them and Godfries case 11. Rept ' fol. 42. b. 43. a. Secondly if by intendment of law as the law was conceived at the time of the making of the statutes of Magna Charta and VVestm. 1. fines and amerciaments had not beene or taken to be Synonyma the feazors of those acts would

Let us therefore examine the course alleadged here in both those points and if it be found to faile in eyther of them it is to be rejected As to the first I cannot find or read any president of it untill of late and the usage of it for a few yeares cannot make it to be cursus Curiae which ought to bee a custome used time beyond the memory of man As to the second it is confessed by the Iudges that they know no law to warrant this course let us see then whether it be against law or standeth with the law and I conceive it is against law for divers reasons First by the Common-law if a judgement be given against a man after a verdict of twelve men which is the chiefe and cleare proofe which the law looketh upon or upon a demurrer after solemne argument he shall in the one case have an attainte against the Iury in the other a writ of error to reverse the judgement but in this case by the confession of the justnesse of the sentence all the meanes to reverse the sentence is taken away and therefore contrary to law and reason Whereas by the Common-law fines ought to bee moderate secundum quantitatem delicti in reformationem non in destructionem of late times the fines have beene so high in destruction of the party in the Castle-chamber as his whole family and himselfe if hee did pay the fine should bee driven to begge and without performance of the sentence hee could not be admitted to reverse the sentence in respect of all which howbeit in his conscience he is not guiltie yet to gaine his libertie and save part of his estate hee is necessitated to acknowledge the justnesse of the sentence so that the confession is extorted from him and consequently is against law Third reason if the fine were secundum quantitatem delicti as it ought to be without danger of destruction the reducement of the fine had not been so necessarie and therefore no just ground for this confession Lastly the confession of the party after sentence doth rather blemish the sentence then any way cleare it for the confession comming after the sentence which ought to be just in it selfe can adde nothing to it but draw suspition upon it and in that respect a confession is strayned the racke used by the course of the Civill law in criminall causes to cleare the conscience of the Iudge to proceede to sentence is intollerable in our Common-law And therefore this course being an innovation against law without any reasonable ground the said Iudges ought in their said answer to declare so much to the end a course might bee taken for abolishing the same This answer I will not now draw into question I could wish the rest were answered no worse What power have the Barons of the Court of Exchequer to rayse the respite of homage arbitrarily c. Vnto this they answer that untill the Kings Tenant by knights service in capite hath done his homage the ancient course of the Exchequer hath beene and still is to issue processe to distrayne the tenants ad faciendum homagium or ad faciendum finem pro homagio suo respectuando upon which processe the Sheriffe returnes issues and if the tenant doe not appeare and compound with the King to give a fine for respite of homage then the issues are forfeyted to the King But if the Kings tenant will appeare the Court of the Exchequer doth agree with him to respite his homage for a small fine They say further that it resteth in the discretion of the Court by the rule of the Common-law to lay downe a fine for respite of homage according to the yearely value of the said lands which I conceive to be very unreasonable and inconvenient that it should lye in the power of any to assesse a fine for respite of homage such as to him shall be thought meete in discretion for if so hee may raise the fine to such a summe as may exceed the very value of the lands Neyther hath the same beene the ancient course for it appeares by severall ancient Records and by an Order of the Court of Exchequer made Termino pascae 1607. that there should be payed for respiting of homage for every Towneship xx d. Irish and for every Mannor xxxx d. Irish and that such as hold severall houses acres or parcels of land which are not Mannors nor Towneship shall pay for everie hundred and twentie Acres of Land Meadow and pasture or of any of them xx d. Irish and no more and according to that rate and proportion if a greater or lesser number of Acres and for every house without ground iiij d. Irish and of Cottages or Farme houses which bee upon the Lands no fine to bee payed for them solely alone And I conceive where a man holdeth severall parcels of land of the King by severall homages that in such case he is to pay but for one respite of homage onely and no more for that a man is to doe homage but once and consequently to pay for one respite of homage onely The late course in the Exchequer here hath been contrary whereas in their answer they goe in the Exchequer according to the statute of primo Iacobi cap. 26. in England under their favour they goe cleare contrary for that statute was made in confirmation and pursuance of former Orders in the Exchequer Whereas the Barons here goe directly contrary to the ancient course and Order of the Exchequer in this kingdome more of this in my reason or ground for this question So I conclude their answer to this is short My Lords the question contaynes two points First whether the subject of this kingdome is censurable for to repayre into England to appeale to his Majesty for redresse of injuries or for his lawfull occasions Secondly why what condition of persons and by what law The first part of the Iudges their answer is positive and full viz. They know no law or statute for such censure nor I neyther and could wish they had stayed there In the second part of their answer they come with an if viz. unlesse they be prohibited by his Majesties writ proclamation or command and make mention of the statute of 5. Rich. 2. cap. 2. in England and 25. Henr. 6. cap. 2. in Ireland I will onely speake to the second part of this answer My Lords the house of Commons in the discussion of this point tooke two things into consideration First what the Common-law was in such cases Secondly what alteration was made of the Common-law by the statute of 5. Rich. 2. cap. 2. in England and 25. Henr. 6. cap. 2. in Ireland as to the subjects of Ireland As for the first the Register hath a writ framed in the point viz. the writ De securitate in venienda quod se non divertat ad partes extras