Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	justice_n	writ_n	1,630	5	9.1550	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A54244	Truth rescued from imposture, or, A brief reply to a meer rapsodie of lies, folly, and slander but a pretended answer to the tryal of W. Penn and W. Meade &c. writ and subscribed S.S. / by a profest enemy to oppression, W.P.	Penn, William, 1644-1718.; Rudyard, Thomas, d. 1692. An appendix, wherein the fourth section of S.S. his pamphlet ... examined.	1670 (1670)	Wing P1392; ESTC R36662	46,879	75

Evidentiam et contra Directionem Curiae in materia legis hic de super premissis eisdem Jur. versus prefact W.P. W.M. in Cur. hic aperte dat declarat de praemissis eis impoit in Indict pred acquietaverunt in contemt dicti Dom. Regis nunc legumque suorum c. The substance of which is That the aforesaid Jurors did acquit the said William Penn and William Mead from the Trespass Contempt and unlawful Assembly and tumult against the Law of this Kingdom of England and against full and manifest Evidence and against the Direction of the Court in matters of Law openly given and declared in Court against the said W.P. and W.M. in contempt of the Lord the King and his Laws c. By which it's plainly manifest and evident that these Jurors were never guilty of giving two contrary Verdicts or fined and imprisoned by the Bench for any such Fact as S.S. hath falsly and scandalously suggested And truly if S S. has been an Eye and Ear Witness of all that passed in this affair as he affirms pa. 10 we may without breach of Charity charge him with having a very treacherous Memory which is an ill Companion for a Lyar. But next we come to enter upon the matter promised and to examine whether or no he has justifi●d the fining of that Jury by reason Law and Authority or any of them in order to which let us recite his words he saith Page 31. In regard that this is a Case that very much concerns the King and Kingdom and is now under the Consideration of all the Judges I shall only make four Remarks upon this Case and leave the Determination of the same to the honourable Sages of our Law Answer Surely our Author had but a small stock of courage that it should fail him in writing half a dozen Lines What in uno flat● to justifie the fining of a Jury and to leave it again to the Determinations of the Sages of the Law He might have left it at first to their Determination and have spared his pains of appearing in Print and yet have been thought never the unwiser Man for his silence S.S. His first REMARK As Nature says he abhors a vacuum in the Universe so it is the honour of our Law that will not suffer a Failer of Justice according to that Maxime Ne curia regis desiceret in Justitia exhibenda Therefore it is that although our Law appoints all Tryals to be by Juries yet in six Cases cited by my Lord Cook 1. p. Inst sect 102. fol. 74. the Tryal is by Certificate as in case a person be in Scotland in Prison and at Burdeaux c. Answ Our Author who quotes Cook might also have remembred thi● Maxime used by him 4 Inst 308. Vbi non est lex ibi non est Transgressio Where there is no Law there is no Transgression As for the matter of Tryals by Certificate it is as Forreign to the matters in debate as Burdeaux or Scotland is distant from Westminster-Hall Neither does S S in any wise by his Discourse apply it to that purpose but barely proceeds In like manner Petty-Jurors that have given their Verdict contrary to their Evidence have been fined by the Justices in Cases where the Law hath provided no ot●●r Punishment as by Attaint c. Answ First Observe the strangeness of S.S. his consequence Because the Law provides th●● For●eign matters a●●ed in partibus transmarinis shall be evidenced or tryed by Certificate from those parts Therefore Facts done or acted at home in publique Courts of Justice shall not be determined in ordinary Courts o● Law per legale judicium parium but by the arbitrary judgment of the Bench or Court Secondly Observe how various this l●tter matter is to S.S. his Text viz Juries Fined for giving two Contrary Verdicts Justified changed into Juries Fined for giving in a Verdict Contrary to Evidence And since the latter is the Text to his subsequent Discourse let us try and examine his Doctrine Our Author to prove That Justices have fined Jurors for bringing in Verdicts contrary to Evidence gives us his Authorities thus Vide Whart●ns Case Yelverton fol. 23. Noy reports the same fol. 48. And Judge Popham said there were divers Presedents to that pupose and cites divers one by Justices in Eire Watts vers Braines in an Appeal to B.R. Crook l. 3. 779. vide Leonard l. 2. 102. pl. 175. and l. 3. 147. pl. 196. Southwels Case in the Exchequor Moor 730. Lemons Case in the Court of Wards Cook l. 12. 23. Prices Case in the Star-Chamber Answ That these Cases are material to our Authors purpose more then to amuse the Reader with Cotations I cannot find neither doth S.S. set forth the substance whereby this Age might understand their Drift and Intent But Cook who he quotes in his justification was clearly of another Opinion to what S.S. would suggest for in the Case he cites 12 Reports 23. That Lover of his Country and England's Liberties speaking of Jurors Freedom by Law to give their Verdicts declares That the Law will not suppose any indifferent when he is sworn to serve the King c. To which agree● says he the Books in 22 Ass 77. Assise p. 13. 21 E. 3 17. 19 H. 6.19 47 E. 3.17 27 H. 8.2 F.N.B. 115. A And the Law presumes that every Juror will be indifferent when he is sworn Nor will the Law admit proof against this presumption But S.S. as conscious of the nullity of those before recited Authorities to justifie his Cause gives us one as he supposes to purpose viz. Wagstaffs Case Trin. 17. C. 2. in B.R. This says he agrees with our present Case in all points And concludes with this Mich. 16. Car. 2. in Banco Regis Leech and five other being of the Jury at Justice Hall in the Old-Baily the last Sessions refused to find certain Quakers guilty according to their Evidence and upon that they were bound to appear in the Kings Bench the first day of the next Tearm they appeared accordingly and the Court directed an Information against them and upon that they were fined Upon which S.S. concludes the fining of Jurors that find contrary to their Evidence is no innovaton but alwayes practized and that by as learned Judges as ever England Bred. We shall not much insist upon the imparity of this last Case in its Points to that in hand being of little further use then to manifest the ignorance and falsity of our Author so only say this to it that 1 see his ignorance that appears by his own showing Leech's Iury says he were fined upon an Information brought against them in the Kings-Bench which much varies from the Case of Edw. Bushel c. in that they were Arbitrarily fined by the Bench at the Old-Baily without Information or matter of Record or being brought to answer by any prec●ss of Law expresly against the Stat. 25. E. 3. cap. 3.

their Judgment in Manner and Form and that Manner and Form takes in and includes the whole Law and Fact of the Indictment as they manifestly do then with great strength and clearness we may infer That the Iury is Iudge of Law and Fact 2. My Second Argument is drawn from the nature of the Verdict given Judgment is the determination and result of Law therefore those who are Authors of s●ch Determinations or Resolutions must needs be I●●ges of the Law How is it possible that a Jury can pronounce Legale Iudit●um Legal Judgment and yet not be Judges whether the Fact proved be obnoxious to the Law or not Juditium quasi juris dictum or the Mouth of Law which being the Juries they pronounce Law as well as Fact A Verdict is a Child composed of Law and Fact and inspirited with the Opinion of the Jury This is further evidenced from their own Proceedings at the Old Baily where they imprisoned the Jury for not bringing in their Verdict so as to render our Meeting Vnlawful which they could never do and not be Judges of that Law the Meeting was supposed to have transgrest In short Since Guilty and Not Guilty are Verdicts and that they cannot be given but where a Fact is obnoxious or not obnoxious to Law and since none are to give that Verdict but the Jury it follow● that the Jury are only Judges because they only can criminate or clear And where the power of determination is there is the judgment of Law but that is in the Jury Where there is no Law there can be no Transgression Now such Transgression being supposed in the Verdict of Guilty it is most plain that Guilty cannot be pronounced but with a reference to the Law transgrest and that reference cannot be made but by such as are Judges of the extent of the Law 3. My third Argument shall be drawn from the Punishment of the Malefactors To Punish any as a Malefactor it is requisit he be proved such but it is impossible he should be so but with respect to some Law transgrest Nor can he be concluded such a Transgressor unless his Fact be judged obnoxious to the Law And where thi● judgmen● is there rests the judg-ship of Law and Fact for that he should be legally punisht pursuant to a legal Judgment and yet the Authors of this Legal Judgment not to be Judges o● the Breach of Law is some of the profoundest Non-sence in Nature What is this but to render the Jury meer Cyphers when they shall only tell the Court that which the Witness shall have swear to their hand But because their Verdicts are Guilty or Not Guilty which determine the Fact meritorious of Punishment or Acquittance therefore have they the only power of Judgment 4. My fourth Argument shall be drawn from a Maxim of their own viz. Ex facto jus oritur Therefore says S.S. The Iury are not only Iudges It is such a way of drawing consequences as I have not been acquainted with for nothing can be clearer then the contrary to this Conclusion If out of the Fact the Law arises then those who are Judges of Fact cannot escape being Judges of Law also for Fact gives it This Passage puts a Ne plus ultra to the pretence of difficulty and the necessity of alwayes asking Questions of the Justices since the nature of the Fact clearly proved carries the legality or contrary in the bosom if not in the front of it and therefore obvious to the plainest and most rustick capacity 5. My next Argument shall be drawn from the ill-consequences of the opposite Opinion viz. That men may be bought or sold out of their Lives Liberties and Estates For if an enraged Bench or otherways interested be the sole Judges of Law then let any man be indicted of the most lawful act imaginable it being such as he cannot deny and which is prov'd by Evidences the Jury must bring him in guilty and so expose him to the sentence of the Justices by leaving the Judgment of the Law to their prepossest brests 6. My last Argument will be this that upon the opinion of our Adversaries there must be two Evidence one of the Fact which is the Juries and one of Law which is the Justices But because the Law knows no such conceit and that the single Verdict of twelve men is and must be legally binding therefore are they Judges both of Law and Fact Object Their main Objection is That if the Justices be not Judges of Law How comes it to pass that the Iury asks the sence of the Law at their Mouthes according to that Maxime Ad questionem Iuris respondent Iudices et ad questionem facti respondent Iuratores as in page 2. of the Libel under Examination Answ This is so far from lessening the force of our preceding Arguments that from this Objection we will fetch matter enough to make a subsequential one and that of no small import to the business controverted I grant a possibility of such an ignorance in Iuries that there may be a necessity to inform them of the Law by the better skill of the Iustices But what then therefore must they not be Iudges of Law so far as concerns the Fact nothing less For though the Iustices may tell them the Law and it s their place yet that 's no part of the Verdict as so said by the Iustices but as understood digested and juditiously made the Iuries by their own free-will and acceptance upon their conviction of the truth of things reported by the Bench. As a man may be educated in any Religion but to make it his proper Religion 't is requisite that he believe and embrace it juditiously not implicitly Thus we frequently find the House of Lords to ask the opinion of the Justices in Parliament is the Vote Order or Act therefore the Judges and not the Parliaments The like in the Kings Council Is the opinion of the Kings Atturney or Solicitor the Iudgment Resolve and Order of the Council because he said it and not because they made it theirs by submitting to the reason or legality of the thing debated and delivered And in London Are the Orders of the Mayor Aldermen and Common-Council the Recorders or City Council's because his or their Opinion in point of Law was ask'd experience shews the contrary From all these Premisses 't is time we draw this one most evident Conclusion That notwithstanding Juries of late are grown so out of fashion and of power with some that to shew any is to incur the Threats and Menaces of the Court to have their Noses Slit their Throats Cut their Bodies Imprisoned and drag'd at a Carts Tayle through the City c. Yet that they are by the antient Laws of England and force of Reason the only right and proper Judges as well of Law as Fact Part V. The Tryal as related by S.S. Examined and his Notes thereon Animadverted THAT I may

had been more knowing and so more proper per Judges who might give a better and more equal Determination of such Facts which for decision came before them then a Jury of twelve men could or would do Surely the Law would then have left all Controversies to their sole Arbitrary Determination and never have required and commanded Tryals by Jurors which are not only chargeable to the Iury-men Free-holders of this Nation by reason of their Attendance and Expence at Assizes and Sessions but also dangerous and hazardous to perform and do their Duty there But according to that Maxime Lex intendit vicinum vicini facta scire The Law presumes that each man best knows his Neighbours Actions Therefore the most proper Judge whether to condemn his Neighbour as guilty or to acquit him as innocent So we must either lose our Reason or conclude it Illegal and Irrational that Justices whom the Law quo ad hoc concludes Ignorant should judge or condemn Jurors for Ignorance whom the Law quo ad hoc concludes more knowing then themselves 5. Fifthly the fifth Reason and Argument to evince the Illegality of such Arbitrary Proceedings may be drawn from that Maxime of Law more then once used by the learned Cook viz. Lex est tutissima Cassis The Law is the surest Sactuary that a man can take and the strongest Fortress to protect the Weakest Yea saith that Author Sub clipeo Legis nemo decip●tur It fails none that put their trust in it We have no reason to believe that that Author put an Encomium upon the Laws of England we mean the Fundamental Laws the Charters of Liberties of which he then treated beyond their real Worth and Value But must rather conclude that such Arbitrary Proccedings which leave the Freemen of England void of Defence and Remediless of Relief are not according to the Rules and M●xims of Law but clearly otherwise And th●t the Fining and Imprisoning of Jurors are such may further app●ar in these Particulars First In that the Jurors are condemned without a Tryal whether they have done their Duty or not that is whether they have found with or against their Evidence c. 2. Secondly In that the Iudgement against them be it Vitious or Erroneous either in respect of the irregularity of the Proceedings or nullity of the Fact charged upon them cannot be examin'd or revers'd by Writ of Error 3. Thirdly In that no such Superiour Court can receive or hear their Appeal as upon Indictments and all other Proceedings by due course of Law they might Manifesting that such Arbitrary Proceedings against Jurors are far more severe and hard then any Convictions of Traitors Thieves and Murderers who are apprehended Flagranti Delicto and tryed by due Course of Law And since they are so unreasonable that they allow not a Iury of twelve Boni Legales Homines Good and Lawfull Men neither liberty of defence before Iudgment nor an after Tryal or Examination of the Fact for which they were condemned we must necessarily conclude them Illegal and Irrational so null and void according to that known Maxime Cessante ratione Legis cessat ipsa Lex And leave them to that just Censure of the Parliament of the Commons of England THAT THEY WERE INNOVATIONS IN THE TRYALS OF MEN FOR THEIR LIVES AND LIBERTIES S.S. his 2d 3d and 4th Remarks Examined Saith S.S. If it be objected That in the present Case being an Indictment for a Trespass an Attaint doth lie and therefore ought to be punished in Attaint Which he thus himself answers Brook Title Attaint 130. saith Et sic admittitur quod si le Roy fuit merement Party Attaint negist Where the King is sole Party Attaint doth not lie In our present Case the King is sole party and therefore by the old Law no Attaint doth lie In the answering of his own Objection the Author has taken up no less then four or ●●ve Pages of his Discourse and the whole of his second third and fourth Remarks in quoting nine or ten Book-Cases and Statutes to prove his Assertion that no Attaint lies where the King is Party Ending his Libel thus From these four Remarks I conclude Nothing but leave the Determination of this important Affair to the honorable Sages of our Law and Pray that in this and in all other Businesses of Concernment that God the Great Iudge of Heaven and Earth would guide and direct them Answ 1st The Righteous God whom this Libeller imprecates has declared That the Prayers of the Wicked are an Abomination to him Prov. 15.9 and 28.9 2d The Frivolousness and Impertinentness of this Ribaldry to the Controversie in hand will appear to the meanest Capacity that will take the pains to compare it to the Libellers own Text viz. The fining of that Jury that gave two Contrary Verdicts Justified 3d The King being Party so no attaint lies the matter of these three last Remarks is so far from being an Objection to be offered by the Friends of those oppressed Iurors that they not only grant to him that no attaint lies against such Iurors but that it is horrid Injustice and Oppression to punish them by that or any other way which we shall clear briefly in these Particulars 1. First It might suffice any rational man That Iurors betwixt the King and Prisoners ought not thus by Arbitrary Fines or other Means to have punishment inflicted upon them in as much as the Ancient Common Law of England is so far from directing of Pai●es that it declares That all Restraints of Jurors are Abusions of the Law Which we have from Andrew Horn a learned Writer of the Law in the time of Ed. 1. who amongst the great abuses of the Common Law for some of which King Alfred executed several of his corrupt Judges sets down this viz. It is Abuse to compel Jurors to say that which they know not by distress of Fine and Imprisonment after their Verdict And that this is the Statute Law to this day may appear 2d In that the Grand Councels of England in Parliament have no less then Twenty several times given their Judgments about the false or vitious Verdicts of Jurors Enacting twenty one Statutes for the correcting and punishing of such Defaults And doubtless they having been so often near the Point had the Law of England and Right and Liberty of its People admitted of such Punishments as the Adversaries of both at this day put in practice they would have let us understood it and not suffer the Law so many Ages to be Vagum incognitum But those Councels making no such Breach upon our Fundamental Laws Rights and Liberties and this our present Parliament by their Resolves confirming the same we may and must aver the contrary procedures Innovations so illegal and opressive But to conclude 3d Lex semper intendit quod convenit Rationi The Law says Cook alwayes intends that which is agreeable to Reason