Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	case_n	error_n	writ_n	6,847	5	9.6947	5	true

Text snippets containing the quad

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

be any such hath and have right and interest and he humbly claims his right accordingly Fourthly That by he Remonstrance 15 of December and the Declaration 17 January 1641. The benefit of the Laws and ordinary Courts of Justice are the subjects Birth-rights By the Declarations of the 12th July and 16th October 1642. the preservation of the laws and the due administration of justice are owned to be the justifying cause of the warr and the ends of the Parliaments affaires managed by their swords and Councils And Gods curse is by them imprecated in case they should ever decline those ends By the Declaration of 17 Apr. 1646. promise was made not to interrupt the course of Justice in the ordinary Courts thereof By the Ordinance or Votes of non-addresses Jan. 1648. it is assured on the Parliaments behalf That 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 And thereupon the Respondent humbly inferreth and affirme●h That The constitution of this Court is a Breath of that publick faith of the Parliments exhibited and pledged in the Declarations and votes to the Freemen of England And upon the whole matter the Respondent saving as aforesaid doth humbly affirme for law and claime as his right That this Court in defect of the validity of the Act by which it is constituted hath not power against him or to press him to a farther Answer That by vertue of Magna Charta the Petition of Right and the before recited Remonstance and Declarations he ought not to be proceeded against by this Court but by an ordinary Court of Justice and to be tryed by his Peeres And prayes That this his present Answer and Salvo may be accepted and registred and that he may be tryed by his Peeres accordingly EUS ANDREWE Answer 2 The farther and second Answer of Eus Andrewe Esq to the Honorable the High Court of Justice presented the 16th day of Aug. 1650. THe said Respondent with the favour of this Honorable Court reserving and praying to be allowed the benefit and liberty of making further Answer if it shall be adjudged necessary in all humbleness for present answer offereth to this honorable Court That by the letter and genuine sense of the Act entituled An Act for establishing an High Court of Justice the said Court is not quallified to try a free man of England and such the Respondent averreth to be for life in case of Treason First For that 1. The said Court is not constituted a Court of Record and but upon Record cannot at all have that accompt of their freeman which Kings were wont to have of their Ministers of Justice 2. The Free man and such who are and may be concerned in him can have no Record to resort unto by which to preserve the rights due to him and them respectively viz of 1. A Writ of Error in case of erroneous judgment due by the Presidents Pasch 39 Ed. 3. fol of Gaunts case 4. Ed. 3. Rot. Parl. Num. 13. Count de Arundels case 42. Ed. 3. Rot. Par. Nu. 23. Sr. Jo. of Lees case 2. A plea of anterfoyes acquit in Case of new question for the same fact the right to which and the necessity of such Record appears by Wetherel and Darlyes Case 4. Rep. 35. Eliz. Vaux his case ibidem 33 Eliz. 3. A being enlarged upon acquital as is the free-mans due by the Stat. 14. Hen. 6. and the Case thereupon grounded Dyer fol. 120 and abridg fo 33. 4. A Writ of Conspiracy against those who have practised the betraying the life of the Respondent not to be brought before acquital no acquital but upon Record as appeareth by The Poultiers Case 9 Rep. fol. 55. This Court is to determine at a day without accompt of their proceedings have power to try judg and cause execution but not to acquit or to give enlargment so that the nocent are thereby punishable the innocent not preservable the injured and betrayed not vindicable which are defects incompatible with a Court of Justice and inconsistent with Justice it self and with the Honours of a Christian nation and Common-wealth Secondly for that the members of this Court are by the Act directed to be sworne 1. Not in conspectu populi for the freemans satisfaction 2. Not in words of indifferency and obliging to equallity 3. In wo●ds of manifest Partiallity viz. You shall swear that you shall well and truely according to the best of your skill and knowledg execute the several powers given unto you by this Act. The Respondent humbly offers That 1. The Court in their capacity of Tryers ought in reason to have been appointed by their constitution to have been sworn as Tryers in full Court according to the practise in all equall wayes of Tryall 2. The Court as Commissioners of Oyre and Terminer being authorized by the Act to hear and determine should in like reason be appointed an oath such as is usual for persons so qualified as provided 18. Edw. 3. viz. You shall swear that well and lawfully you shall serve our Lord the King and his people mutatis mutandis in the office of Justice c. and that you deny to no man common right c. Or some Oath equivalent at least to that of a Justice of Peace Dalton fol. 13. I A. B. do swear that I will do equall right and according to my best wit cunning and power after the laws and customes of the land and the Statutes thereof made c. 3. The Court in the capacity of tryers should in reason be obliged by an oath of as equitable sence as that usually administred to Jurors viz. You shall well and truly try and true deliverance make between our Soveraigne Lord the King mutatis mutandis and the prisoner at the Barr so help you God Whereas when this Court shall as it is now constituted have condemned the freeman the Respondent or other by applying their skill and knowledg to their power whether justly or not the oath by them taken is not in the letter broken as to be exactible by man though God will provably have a better accompt And therefore upon the whole matter premised the Respondent saving as before offers for law and reason that the honorable Court the high Court of Justice is not by the letter and proper sence of the words of the Act by which it is constituted qualified in respect of the preobjected defects to pass upon him for his life upon a charge or crimination of high Treason And humbly prayes that this his second Answer and Salvo may be received and registred and that he may be tryed as in his former answer he prayed EUS ANDREW Answer 3 The farther and third Answer of Eusebius Andrewe Esquire to the Honorable the High Court of Justice presented the 16 day of Aug. 1650. THe said Respondent with the favour of this honorable Court reserving and praying to

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 ro 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 My right to be tryed by a Jury and in their power to try me so 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 M. Ch. 9 Hes. 3. 29. Nisi per legale Judicium Parium suorum The Law of Edward 1. having confirmed the great Charter 25 Ed. 1. Ca. 1. 2. 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 Cases adjudged in the Point 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 Pasch 39 Edward 3. Jo. of Gaunts Cases 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 fuit absque araniamento seu responsione seu legali judicio Parium Contra legem contra tenorem Magnae Chartae The like reversals and upon the like reasons have been had 4 Ed. 3. Nu. 13. Rot. Parl. 42 Edw. 3. Nu. 23. Rot. Parl. 5 Ed. 3.9 In the Count de Arundels Case In Sir John of Lees Case It is provided That no man from thenceforth should be attached by any accusation nor fore-judged of life nor of limb nor his lands c. against the form of the great Charter and the law of the land 52 Edw. 3. 2. My Lord our fathers saw a Parliament and reaped the blessing of it which was called Benedictum Parliamentum which hath circumscribed the loose interpreters of Treasons to a standard and not left it to be Individium vagum and there it is said That persons guilty of high Treason and my charge is not for less must be provably attaint of open deed by people of their own condition Ca. 4. ejusd And again it is accorded assented and established That from henceforth none shall be taken by petition or suggestion made to the King or his Councel unless it be by indictment or presentment of his good and lawfull people of his neighbourhood where such deeds be done in due manner or by process made by writ Original at the common Law The like in eff●ct in 28 Ed. 3. 3. 37 Ed. 3. 18. Nor that none be ousted of his Franchises or of his Free-hold unless he be duly brought to answer and forejudged of the same by the course of Law and if any thing be done against the same it shall be redressed and holden for none It is Assented and Established for the good governance of the Commons that no man be put to answer without presentment before Justices 41 Ed. 3. 3. or matter of Record or by due Process and Writ original according to the old law of the Land and if any thing from henceforth be done contrary it shall be void in Law and holden for error My Lord That it is my right to be tryed by a Jury of 12 men de vicineto is evident and it is as evident that if you otherwise proceed with me if law were not out of fashion you would but weave Penelopes Web and one days judgment would be unravel'd by the next days Writ of Error But after-games for Life are dangerous and for Estate I have no great cause to be solicitous but my right is my duty to preserve as in relation to my self and my honour to keep it if it may be from being in my president taken also from my Countrymen the free-men if any such be now of England who have equal reason though they may be wanting some of them of the same reasons wherewith to defend it That your Lordship may proceed by Jury for ought is said or contained in your Act to the contrary This may proceed by Jury 1. I pray consider the before recited laws are all unrepealed and therefore if this law intend to oppose those laws it should have repealed them No repeal or non obsta●te or at least have afforded a slight non abstante or have given the Subject the comfort of a hac vice tantum that we might not have thought our selves rob'd of all but only plundered of a part of our right for necessity and experience sake or at least have given us the favour of the Earl of Straffords Act that it should never be drawn into example but I am sure in this Act that proceeding against him is super-exampled 2. I desire you would consider your qualification you are made Commissioners and that of Oyre and Terminer and those are not proceeders in their own proper natural and habitual constitution and practises upon and acording to their own judgments in matters of fact you are in these words viz. Required to hear and determin c. constituted Commissioners of Oyre and Terminer fol. 746. 3. You are authorised to proceed to Tryal Condemnation Execution c. but you are not restrained to the manner of such proceedings to Tryal exclusively as to

that design which he took upon him to be acquainted withal for which he was as then in no capacity nor would be engaged under his hand seal to be bound to be any future action for them for that Benson was a fellow given to drink and lavish of his tongue but entrusted me that if I went over upon rhis occasion to possesse the Prince with a good opinion of him and that he would do nothing against him if he were at all in command he would be so to his advantage or to that effect I returned to them Sir John Gells answer with which they were not or seemed not altogether unsatisfied and appointed on Munday five of the clock that the persons of the Counties of Ken● Buckingham and Dorset or some of each Countie from the rest should give meeting at the Three Cranes at the Savoy gate and be all satisfied in the Design and agree their respective proportions of monyes to be paid in present and raised for the future desiring me to take care to move that they might be also provided for to be able to hold intelligence and ride about from place to place to lay the design At the time I came and Major Barnard produced two letters one subscribed by Smith another by Thatcher purporting that the Kentish Gentlemen were come as farr as Rochester and would that night be within twelve miles of London and lie there all day and then in the evening on Tuesday by eight of the clock would at any place give meeting to himself and his Collonel and that they had sent an especiall guide to bring Barnard to them that night whether he was instantly desired to repaire and that they durst come no nearer in feare of the watchfullness of Collonel Blunt and that two hundred and fifty pounds were ready to be laid down to perform their undertaking No man of any Countie giving any meeting according to the first appointment at the Cranes but the said Barnard and Benson and or e who calls himself Captain Ashley only known in f●●e to me who pretended to be privy and knowing of the truth of all what their former discourse and these letters tended to and Barnard pretending to go instantly to horse from Westminster I brought him and Benson to the water side and in the walk they importun'd me again to obtain Sir John Gells signature and seale to the engagement which Benson had then ready engrossed and that I would go persently to Westminster with them about it which I refused and told them that I was able to satisfie any man of quallity discretion and secresie concerning Sir Johns reallity though not actually engaged and so left them That night about eight of the clock one Smith to me till then an absolute stranger and Captain Ashley came to me and brought me a letter from Major Barnard highly reproving me and Sir John Gell of backwardness in witholding our own hands from the engagement and that we intended our own honours upon their dangers without giving them assurance of our secresie and constancy and that unless the engagement were subscribed b Sir John Gell his Kentish friends would not proceed further ay was known to Mr. Smith who took upon him to come as from them for satisfaction in that point And in answer I under a vow of secresie told him that I was satisfied concerning Sir John Gell and presume that if any Gentleman of quallity in whose Judgment the rest would abide should address to Sir John that under an Oath of secresie he would satisfie him but durst not trust Benson and Barnard was to him a stranger with this they departed assuring me that they thought no more would be expected from Sir John and that they would or one of them away that night to the company and that the next day being Tuesday the money should be paid at the Palsgraves head They brake their time and my occasions prest me into London being next day to be gone by the Act and about nine of the clock at night I was sent for by Captain Ashley and Benson who delivered me a letter from Barnard * This was done by three and confessed but omitted here but is by another paper supplyed c. pressing me to subscribe the engagement which Benson engrossed and that being done he would go with me next day to Gravesend and the Gentlemen of Kent should meet there and there the money to be paid The tide being fit for passage on Wednesday Barnard came not but Benson pretended him to be at Tottenham Court with the Buckinghamshire Gentlemen and that he was well hors'd and would come presently and should follow and so Captain Ashley and my self with no more then fifty shillings in my purse presuming upon the money there went to Gravesend and expected till Thursday night but found no Kentish men and no one from London coming Captaine Ashley went that night with the evening tide for London to enquire the reason and on the Friday morning early came Major Barnard and Mr. Smith with a letter from Benson purporting that if Sir John Gell would not co-ingage under his hand and seal with those whose names were subscribed of which I only know Barnard Smith Benson and Ashley they would go over themselves meaning himself and Barnard to the Prince and spoile both mine and Sir Johns credit with him and disappoint all that I intended in his favour and that he had letters from Sir John which he could produce should make him repent his refusal or to such effect and therefore desired me to write to Sir John Gell to let him see his danger which I did laying the case before him and not pressing him but leaving him to do as God should direct him and his judgment lead him with which letter Barnard and Smith went away with assurance that whether Sir John Gell engage or not I should hear next day from them and if he did engage they would come down and go for Rochester where their former undertaking should be performed to me and if he did not I should be disengaged and have my subscription and seal sent me and the design should fall I expected till Saturday night and finding no answer resolved on Munday to intend my privicie in the Countrey upon my first purpose for new Albion and in the morning early was seized by a party of horse and brought to London My Lords In that Narrative you will see a believing nature wrought upon by treacherous men such who cannot be true to any whilest false to parties The pretended design vanisht as never being more then a phantasm and not worth your regard the real design effected so farr as they had power or opportunity that is to bring the game into the toyle and there leave them to be entangled and made a quarry Yow will find me passively Active being prompted and enticed by their insinuation and not once but hearkening to them It lies in your Lordships

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.