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
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
in those words in the original it fals not within the words of the translation of this new born law viz. by any open deed So as the first and third branches of the engagement which are interwoven and what ever I conclude that neither of them that is to say neither the oath nor the resolution are treasons either within the old or the new laws either in respect of the persons against whom or the progress made in the thing it self 2. As to the owning of Charls the second it falls not within your Law for that it is not a Publishing Proclaiming or publickly Declaring his Title The words of the Act are Proclaim Declare Publish or any way promote which promoting is matter of Action more then a private owning And this by the Oath it self was not to be publisht nor could without publishing the Engagement it self which was contrary to the Oath And though it may be objected that the raising the warr could not be done but by a publishing his title and the Engagement at last yet that if it be granted was no forwarder then in intendment no more was this publishing and being not done falls not within your Act The crimination of the State is but guessed at by implication for they are not named to be meant and I believe your law reaches only to things literal and not constructive only and for the word Rebels I hope they will not take that to themselves and the word opposers is a very innocent expression and at the worst is all but a scandal Lastly Be this Engagement what it will yet the terms upon which I signed and sealed it were such as that it was my act not absolute but upon condition and to be undone and avoided in case of the non-coengaging of others by the States decoy assured to be ready to do it and at whose instance and for whose satisfaction it was pretended to be desired at my hands If the Court proceeds by way of Indictment then I shall move that those persons may be confronted whom in my Narrative Examinations and Letters I have named and that I may demand of them c. As also that Major Parker may be produced to be likewise demanded of as a person by me lately and since my papers sent to the State discovered to be of the Plot to betray me If the Court proceed by way of Articles and upon Examinations taken against me I desire and that is but reason that I may examine my defence as in all Courts where such proceedings were used was allowed If it be objected That it was not used in cases of Treason I answer it it true if they hold the ancient way of Tryals not but if they proceed this way it is but just and otherwise the Court are at liberty to use all means publick or private to catch me but I have none to defend my self So that it appears that they seek not to do Justice but Execution And whether they be confronted or examined these questions are to be propounded either viva voce or Interogatory and if by Interogatory I must stand upon a fair way of Examination viz. That some one from me as well as one for the States behalf may be present and set down the examinations or depositions and that I may have a Copy of them as well against me as for me as well taken already by the State or to be taken upon my motion The Questions 1. Whether he knows Major Burnard how long c. What communication and correspondence concerning me or my actions held between them Whether he knew of the supposed design against the Isle of Ely and of the late Engagement how he knew them and upon what reason and to what end discovered to him and by whom 2. Whether he did inform the State or any member of the Councel of them and how long he hath so informed 3. Whether he ever had in his custody the Engagement under the hands and Seals and my letter to Sir John Gell if so where and whether not at Gravesend at my being there Whether he were sent to watch mee and knew of my being there before my being apprehended The same questions mutatis mutandis to be propounded to Barnard and farther to him and to Benson Holmes Ashley Smyth as they are marked 4. Whether he did propound in both designs to me or I to him Whether I sought him or he me In what disposition he found me upon the time by the Act limited for departure c. 5. Whether he were real to me in the particulars of persons confederates or monyes ready to engage and to be advanced and if not then to what end he faigned these to me 6. Whether the Letters by him to me produced from Smyth and Thach or Thatcher were true or seigned and if seigned to what end and by whom let on work 7. Whether he were set upon me to watch my ways and motions And whether he were not promised or did design unto himself profit for the discovering of me and such whom I should bring in 8. Whether I fram'd or ever read the said supposed design Or was to be de future acquainted with it 9. Whether he brought or I sought Benson or Holmes And whether confederates with him or designed upon by him 10. Whether my engagement were absolute or conditional and what I signified at my departure and upon Barnards not comming and where Barnard was pretended to be and where he really was what promise I had concerning the return of my engagement in case Sir John Gell did not engage at Gravesend 11. Whether Copies of Letters weekly shew'd to me were reall of feigned and if feigned why pretended to be real 12. Whether were there really any Kentish Dorset or Buckinghamshire men and who confederites c. These preparations formerly made in rough notes were transcribed and put into form and finished the 8 day of July 1650. by Gods good assistance notwithstanding my abundant disadvantages of close Imprisonment and want of Books or Advice and I commit and submit the issue to God whom I beseech to fortifie my spirit and enlarge my understanding when they shall come to be made use of my self resolving to be the Laws confessor while I live and if called to it to be the Laws Martyr when I die by the hand of the impending violence under the specious name of Justice Sed terra astraea reliquit Judica me Domine in furore c. Eus ANDREWE 8. 7. 2. 1650. Domini Mortem minatur Deus 〈◊〉 〈◊〉 in mortem Vis in timore securus offe securitatum time Nil eam longe abâ—st a nabis quam ipsi nos In manibus Domini sunt exitus mortis Arumnarum requies Mors. Fraus fidem in parvis sibi praestruit ut â—um opere prâ—eium sit â—um majori mircedâ— sallat His Exceptions to his Tryers Jâ—hn Hurst Esq