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judgement_n bring_v error_n writ_n 15,418 5 10.2182 5 true
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A29139 A true relation of the proceedings, examination, tryal, and horrid murder of Col. Eusebius Andrewe by John Bradshaw, President of the pretended High Court of Justice, and others of the same court published by Francis Buckley ... Buckley, Francis, Gent. 1660 (1660) Wing B4155; ESTC R19632 53,776 80

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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 ●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