to the State but an expectation in them to get by the bargain by my drawing in others and then all to be snapt Smyth a counterfeit name and Pitt his name party with Barnard My name Dudley only as to Barnard in this kind of casual to others only to prevent arrests of other mens debts least by a suspition on my place of abode my name should be discovered to my Creditors My name and person known and perfect where ever I lay at Feres at Sartaines at Coopers at Perkins at Manes ordinary and known to all the streets and people Detaining them close prisoners without the liberty of using Book Pen Ink or Paper denying them all the comforts of life all means of preservation of health c. denying them the means of spiritual consolation not suffering them to go abroad to enjoy Gods Ordinances in Gods House or Gods Ministers to come to them to administer comfort to them in their private Chamber And the ordinary course of Justice the common birthright of the Subject of England obstructed unto them The restraint of the liberties of the Subjects in their Habitations Trades and other interests Starchamber deprive men of the society of their friends exercise of their professions comfort of books pen c. Judges awed that they durst not do their duties New Oathes been forced upon the Subject against Law New Judicatories erected without Law The pretended Court of Earl Marshall was arbitrary and illegal in its being and proceedings They imposed a new Oath upon divers of his Majesties Subjects both Ecclesiastical and lay for maintenance of their own Tyranny And then Magnifying their own doings in this Parliament they say That These things will appear only in future times in story to give us and our posterity more occasion to praise God for his Majesties goodness and the faithfull endeavours of the Parliament The Laws of the triennial Parliament and the non dissolving of this without consent of both Houses may be thought more advantageous then the former What can we the Commissioners do without the conjunction of the House of Lords Acusatores Carere debet omni vitio qui paratus est in alterum dicere Nulla salus Reipublicae major est quam eos qui alterum accusant non minus de laude de honore de famâ suâ quam illos qui accusatur de capite ac fortunis suis pertimes cers Itaque semper hi diligentissime laboriosissimeque accusarunt qui se ipsos in discrimen existimationis veniri arbitrati sunt Exempla Domitianus dum Rapinis intendit anamuâ—… ita Aures delatoribus patifecit ut nihil cuiquam Tutum esset Allex ab Allexandro Lib. 4. Cap. 22. Multa esset oportet in eo qui alterum accusat primum integritatem atque innocentiam Nihil est enim quod minus ferendum est quamrationem ab altero vite reposcere cum qui non possit suo reddere Cicero in Ver. Tuta frequensque via est per amici fallere nomen Tuta frequensque licet sit via Crimen habet Frâ—us fidem in parvis sibi praeservis ut cum opere precium sit magna â—â—rcede fallat Barnaldus vidit omnia perdidet omnes To Plot Must argue the Propounder and Consenter to be both of one mind If not but that one intends not the thing purposed but to betray the other by his consent thereto cannot be a Plot in any interpretation The same for Contrive or Endeavour as to the second Clause in the Act for Establishment Est innoeua adversitas ubi iniquitas Null A. Est vita infelicissima in qua adversitas Null A. Sat Miser est qui semel est Miser Periissem si non periissem Eiat voluntas Dei modo in ruinâ meâ Eusebius Andrewe The Several Arguments of Collonel Andrewe at his Tryal The First Argument My Lords and you Gentlemen Members of this Honorable Court I Have as becomes me been attentive to the charge which hath been read against me It appears in that dress it is put already though I presume it shall be clad in other apparel by Mr. Attorney so specious and so great as that my friends if I have any here begin to fear the indifferent to doubt and the partial to desire and joyne in my condemnation my self I hope I am not partial to my self believe that it will be no more then the mountaines labour and when it shall come to be dissected will prove to be inane aliquid like the Apples of Sodom that however they take the first sence the eye as this the eare do rather foul the fingers that touch them then satisfie the appetite in its expectation upon them My Lord I am at an unusual Barr and engaged in a great cause of a far extendible concernment my fee is life and my duty is self-preservation which in it self were less considerable if by a president of my suff'ring the consequence would not prove mischievously Epidemical I do not willfully refuse to plead to the charge but humbly crave leave to offer my reasons for the suspending of my Plea And if I be importunate yet within the bounds of civility I beg your pardon and that I may have a full a free and an uninterrupted hearing My Lord When the Jews prest Pilate to sentence Christ they obtruded to him that they had a Law and by that law he ought to dye What they thought reasonable to claim when it served their turn to vent their Malice will be I hope warrantable for me to lay hold on in a better sence for the vindication of Christ who suffers when Justice is a sufferer We have a law too and by that law I ought not to plead not to be tryed not to be judged The Laws of England were not unknown but mispractised when the Barons fought King John into a consent to the not new making but restorement of the ancient Laws And Magna Charta it self is but a confirmation or restitution of the Common Law and is become the Standard by which Laws are reduceable and is the foundation of all other Acts of Parliament It hath been at no time dismembred no part abrogated by any repeal It hath been confirmed above 30 times and commanded as often to be observed and put in Execution In the Act call'd Confirmatio Cartarum it is directed to be allowed as the Common Law in judgment in all points by all the Judges and dispensers of Law or which have the law to guide It hath in former ages gained an honourable esteem in the old books Charta libertatum Communis libertas Angliae Charta de Libertatibus c. these are the Appellations It was a Noli me tangere and for seeking a Reversal or Avoidance of it Hubert de Burgo was sentenced by the Barons and the sentence confirmed by
damn my soul to preserve my estate or repaire my wrong by a contra-legal and contra-evangelical engagement This was sufficient reason owned and justified by the Parliament for their substraction of obedience {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} by their Declarations and Ordinances 2. Fealty or personal engagement I have given none viz. 1. I have not taken the Protestation of May 1642. 2. I have not taken the solemn Oath and Covenant yet if I had I might have justified my Actions by them 3. I have not taken the negative Oath because my oath of Allegiance from which no man can absolve me is a negative to that c. 4. I have not taken the present engagement much more against my oath of Allegiance then the negative oath If I had had so little conscience as to have taken them I would have had so much as to have kept them and the State cannot in reason expect from me or any other that we should take a second when we see no conscience made of keeping the first and to take a third the first and second being broken without other dispensation then Power which like Alexanders sword cuts the * knot which it can not untye Neither hath any man assurance if he should take the last engagement that he should have liberty to keep it longer then the fancie of the State held to the now new fashion of Government And therefore I stand clear as a down-right subject of England to stand or fall by the Common Laws of England and if they will deny me that they deny my Birth-right which is equally righteous and no more just then to deny me my estate my calling my abode my means of right Secondly As to my action at Linton I justifie my self by the late 1. Kings Commission which my accuser knowes I had and under which he was by the same King constituted my Major 2. a What was done was so done when he who gave me the Commission was in being and oppressed by injurious imprisonment and what I did was in order to his enlargement from his Thraldome and restorement to his lawfull power which was that to which my duty as a Subject by my oath of Allegiance did bind me in general termes and the duty of my qualification in particular obligation It was done before the now reputed Parliament were or pretended to be the Supreme Authority of the Nation or had assumed the power of Government or were fram'd into a State consequently I am not answerable to them for any opposition to them further then the Common Law binds to Parliaments without their head hand or defective in their members as to such offence if it be one this Court is not qualified to take any cognizance Thirdly As to the design concerning the surprise of the Isle of Ely it was but a bare discourse or communication and no formal design said agreed unto nor person engaged in it so much as by promise And in Cases of conspiracy against the lives of Kings there were some statutes made that very words and communication should be reputed I reason but all repealed or expired And not thought fit by wisdome of Law-makers having indisputable power to make Laws to be revived since the dayes of Q. Mary notwithstanding those very many treasons hatched designed against Queen Elizabeth and King James c. If in the highest point of treason communication be not treason against lawful Princes certainly an affection where the offence such as it is is of a far inferiour nature of it self so it had a far inferior object or subject concerning whom such discourse was holden Fourthly As to my supposed corresponding with the King the Lord Hopton and Earle of Cleveland if true it was so long since as that it fals not within compase of this Courts Commission to try being confin'd to infant matters of a year old and my charge not exhibited to the Court of Justice before Munday the 15 of July My last letter received from Lord Hopton beats date at the Hague 18. or 28. of June and was received in two dayes into Sussex Fifthly As to the Drawing Signing Sealing of the engagement it consists of several branches That De facto I did it and must not deny it because I have confessed it which was more their needed to them who knew it without enquiry for I dare averr that they had their instrument by them imployed and cherisht in betraying me to it And have some years past had a man in my bosome to watch me and my motions which I did affirm to the Lord President and he not denyed but said it was no more then did become any State to do who had so much cause to hold an active man in suspect as they had me having never come in and laid down the Cudgels but held to my principles and was ready upon every occasion to take fire And this I will prove if I have legal or because that word is worne out of use fair dealing from the Court And Out of that I may justly inferr what will be visible enough that it is the States Act and but my consent and they in no danger of me but that I should preserve my self from their new laws into the lapse of which I was not otherwise or by any other action fallen As to the parts of it 1. It consists of an oath of secresie 2. An owning of Charles the Second to be such 3. A resolution to endeavour to make him such 4. A crimination of the State under the names of Rebels and opposers who would not have him to be such To these as they are rankt The oath of Secresie hath relation only as to the not discovering the co-engagers in that resolution the resolution it self being not Treason the oath of keeping secret that resolution is not greater then the thing resolved 1. The thing resolv'd was to endeavour but was nor an actual endeavoring 2. If it were an actual endeavouring yet it can only be supposed that it must be endeavoured by a warr to be levied and the endeavour to levy a warr never actually leavyed is not treason against the King against whom only and his relations by our old laws which are Laws a treason can be committed and petty-treason I am not accused for That a bare intention resolution or engagement to levy a warr is not treason I report my self to my Lord Cooke who tels us and he is a man of credit in his Book printed and allowed for law by the Houses when they were two that a conspiracy and this engagement amounts not to so much but rather to an intention only to conspire to raise a warr as hath been said and so resolv'd is no treason by the Act of Edward the third until the warr levyed as within or to be reached by those words in that law overt Act and if it were not treason
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 was sufficient Treason and for that affection he deserved death and thereupon the Court pronouned sentence against him Thus was the Birth-right of the Freeman of England denyed by most cruel murtherers whose only will was their Law IF I be overrul'd by the Court that I must either answer or be sentenced for my wilfulness Then I move that I may have a Copy of my charge and a day assigned me to deliver in my Answer under my hand Upon these Reasons 1. If the Court proceed upon Articles they cannot in reason conceive that I can plead the general issue to particulars for in so doing in case I be convinced of any one Article I shall receive the doom of all 2. For that De facto some of the Articles may be true yet de modo they may not be valuable against me and upon the general issue I shall not be received to qualifie fact with circumstance so in stead of being allowed the freedom of my defence which is allowed to every thief at Newgate I shall be tryed and snared by such confession or proof as will serve the turn of my prosecutors and not preserve my self by making my self and actions understood The Articles are of several kinds and crimes and as one single Plea will not be applyable to them all so it is but requisite that I have a Copy of them to give thereby to each one his proper Answer which though in Indictments is not allowed yet in this way of proceeding was never denyed in the most Arbitrary Courts The Council Table gave a charge and received answer in writing in cases of contempt against themselves or their commands The Star-chamber afforded the Defendant a Copy of the Bill and liberty to examine and cross examine witnesses in case the fact charged were denyed by the Answer The High Commission the like by their Articles and proceedings upon them My Answer if not in writing may either not be understood or misapprehended or miss set down by the Clerk to my prejudice If this be denyed me then I must conclude they intend to wipe of my head with the smooth glazed sword of pretended Justice and must apply my self to my memory in reference to the charge and shall hear it read which by my own knowledg of what hath passed between the State and me I may conjecture and therefore prepare these following heads to help memory which in a case of so much concernment is not totally to be relyed upon First As to what may be alledged against me in general terms as a disaffected person and oppugner of the State or otherwise c. There are two things which draw subjection and oblige persons to a Commonwealth 1. Protection in the State 2. Personal engagement or fealty in the Subject First Protection I have received none but stand in the condition of a proscribed person 1. State if any sequestrable and not permitted by the laws of the nation to vindicate it 2. Calling taken away which the Turke would not have done had he been conqueror 3. Dwelling not permitted where I can subsist but where I may be obnoctious to want and to the States infliction of punishment when they shall take occasion to repeat upon me any thing which they shall call a crime in reference to my passed Actions for the late King and my now Soveraign 4. Right I can have none unless I will
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 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 freemans 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 words 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 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 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 First It is his right if he must admit this Court to be duly and legally established and constituted as to their being a Court to be tryed by his Peeres men of his own condition and neighborhood 2. It is within the power of the Court by the letter and sence of the Act or at least as being not repugnant to the Act to try him by such his Peeres c. First That it is his right to be so and only so tryed appears by Magna Charta Ca. 29. 25 Edw. 1. Ca. 1. and 2. 5 Edw. 3. Ca. 9. 25. Edw. 3. Ca. 2. and 4. 28. Edw. 3. Ca. 4. 37. Edw. 3. Ca. 18. 42. Edw. 3. Ca. 3. By all which Statutes made in full Parliament consisting of the head and all the members actually as well as virtually this the Respondents right is maintainable and demandable and the contrary proceedings thereunto are To be held for none and redressed c. To be held for voyd and error c. So that If the laws and Courts were not obstructed in the cases of some sort of freemen of England the whole proceeding
sed per communi civium ultilitate conscripta And as laws should be so should Courts and the dispenseâ—… of laws be But my Lord if this Court must be granted to be a Court 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 wart 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 furis habere propter potentiam â fortunâ datam sed fraus 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 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 eu le Poulters Case 9. R. Benegist demant acquittal nul req si non de Record as also my benefit a writ of Conspiracy 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 The charges against he Earl of Strasford 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 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 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 My Lord We have the Parliaments word and promise not to interrupt the course of Justice in the ordinary Courts 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. Stampsord 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 is the thing in question Sayth That Lex est regula mensura actuum agendorum vel omittendorum not Actorum and Omissorum And St. Paul says Concupiscentian nesciebam nisi lex diceret non concupisces 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 I lot Contrive or Endeavour 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 amongstold 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 defigned 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 king have long since even by the Parliament of which this is the sarviving 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 Crimiâ—al 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 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 â—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
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 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 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 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 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 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 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 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 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 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 which I might make to a Jury or Jurors And that is contrary to my right 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 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 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 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 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