mmon right, &c.' Or some Oath equi- | of freemen of England) the whole proceeding contrary to these laws, without a Jury of his Peers, were avoidable, and reservable by Writ of Error, as appears also by the precedents vouched by the Respondent in his second Answer. at least to that of a Justice of Peace, , fol. 13. 'I A. B. do swear, that I will qual right; and according to my best unuing and power, after the Laws and toms of the land, and the statutes thereade, &c. 3. The Court in the capacity iers should, in reason, be obliged by au .. of as equitable sense as that usually uistered to jurors, viz. You shall well d truly try, and true deliverance make be-lification. een our sovereign Lord the king, (mutatis utandis) and the prisoner at the bar; So ip you God.' Whereas when this Court shall, as it is now constituted, have condemned the Freeman, the Respondent, or other, by applying their il and knowledge, to their power, whether astly or not, the oath by them taken is not in the letter broken; as to be exactable by man, though God will probably have a better account. And therefore upon the whole matter premised, the Respondent (saving as before) offers for law and reason, that the honourable Court the High Court of Justice, is not, by the letter and proper sense of the words of the Act, by which it is constituted, qualified in respect of the pre-objected defects to pass upon him for his life, upon a charge of crimination of high treason, And humbly prays, that this his second answer, and salvo, may be received, and registered; and that he may be tried, as in his former Answer he prayed. EUS. ANDREWE. The farther and third ANSWER of Eusebius Andrewe, esq. to the Honourable the High Court of Justice, presented the 16th day of Aug. 1650. Secondly, That it is in the Court's power to try the Freeman, and consequently the Respondent, by a jury of his equals; the Court is humbly desired to consider the words of qua The Court is, 1. Required to hear and determine; and so if at all Commissioners, then Commissioners of Oyer and Terminer, and such Commissioners, in their natural constitution and practical execution, do proceed against the freemen according to law, by a jury of his equals, and not otherwise. 2. Authorized to proceed to trial, condemnation, and execution, &c. But not restrained to the manner of trial, limitativè, as to trial by the Court's opinion as tryers, non exclusivè as to trial per Pares; but is left in the manner, as in the judgment itself, to the opinion of the major number of twelve; and if they shall think fit to try by a jury, it will be no offence against the act, there being no clause or probibition to the contrary. And therefore the Respondent humbly claimeth his said right, as consisting with the said power.--And the more to induce the Court to grant him such his right, and the benefit thereof, the Respondent humbly representeth the manifest wrong, and multiplied disherison done to him, and in him to the culars of their like just right (depending upon Freemanry of England, in the following partisuch trial to be allowed) if denied him, by this honourable Court. The said Respondent, with the favour of this honourable 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 Auswer, offer-1 eth to this honourable 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 he tried by his peers, men of his own condition and neighbourhood. Secondly, It is within the power of the Court by the letter and sense of the Act, or at least as being not repugnant to the act, to try him by such his peers, &c. First, That it is his right to be so, and only so tried, appears by Magna Charta, c. 29. 25 Edw. 1, c. 1 and 2. 25 Edw. 3, c. 4. 25 Edw. 3, c. 2 and 4. 28 Edw. 3, c. 4. 37 Edw. 3, c. 18. 42 Edw. 3, c. 3.-By all which Statutes made in full Parliament, consisting of the head, and all the members actually, as well as virtually, this the Respondent's right is maintainable and demandable, and the contrary proceedings thereunto are to be held for none, and redressed, &c. to be held for void and error, &c. So that, if the Laws and Courts were not obstructed, (in the cases of some sort VOL. V. First, The benefit of Challenge to the Triers, thirty-five peremp torily, and for Treason sans number.-(Stampf. pl. Cor. fol. 150. Tit. Challenge, Poying's Case. 32 Hen. 6, Fitz. fol. 26. Allowed Hill. Jacobi to sir W. Raleigh and Brooks.) Secondly, The liberty of Seeing, hearing, and counter-questioning the witnesses, for clearing the evidence in matter of circumstance, as well as in matter of fact; which appears to be the Respondent's right by (Stampf. pl. Cor. fol. 163, 164, the statute of 1 and 2 Phil. and Mary, c. 10 and 11. 1 Edw. 6, c. 12. The authority of (the Law's Oracle) Coke 2 part Inst. fol. 12, commenting upon the words in 25 Edw. 3, c. 2. Provablement Attaint, bocause the punishment was heavy, the proof to be punctual, and not upon presumptions or inferences, or strains of wit, but upon good and sufficient proofs: also by the statute of 1 Elis. c. 6, 13 Eliz. c. 1. Thirdly, The being convinced or acquitted by a full, free, and fully-consented verdict. For, 1. Á verdict by a Jury passeth from all, or not at all. In the proceeding by voices, a sentence passeth by way of concurrence, with which the Star-Chamber, High-Commission, and Courts-Martial, were branded and core demned of Inequality. 2. A verdict passeth upon a Jury before discharged, upon their affairs of estate, or supplies of nature, to prevent Corruption of money and power; but as this Court proceeds (if it will proceed by voices), a trial may be had this day, and a sentence may be given at leisure; when the will of those by whoin the freeman is prosecuted, be first known. And upon the whole matter, The Respondent humbly claims the benefit and right of being tried (if before this honourable Court) per pares, men of his own condition, aud of his neighbourhood, and that he may hear and see all the witnesses produced against him, viva voce et aperto vultu; and may have power, liberty, and time to produce witnesses in his defence. And (saving as formerly) humbly prays that this his Answer, and Salvo, may be received and registered. EUS. ANDREWE. THE SEVERAL ARGUMENTS OF COL. DREWE AT HIS TRIAL. And Magna Charta [Coke 1st part Instit. fol. 80, 81.] itself is but à confirmation or restitution of the Common Law, and is become the standard by which laws are reducible, and is the foundation of all other acts of parliament. It hath been at no time dismembered; no part abrogated by any repeal. It hath been confirmed above thirty times, and commanded as often to be observed and put in execution. In the Act called Confirmatio Chartarum, [25 Ed. 1, c. 1.] 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. [Bracton 414, 491. Fleta lib. 2, c. 48, lib. 3, c. 3.]-It hath in former ages gained an honourable esteem in the old Books: Charta Libertatum communis Libertas Angliæ, Charta de Libertatibus,' &c. these are the Appellations. [Mirror c. 2, 18. Briton fol. 177.1-It was a Noli me tangere, and for seeking a reversal or avoidance of it, AN-Hubert de Burgh, was sentenced by the Barons, and the sentence confirmed by king Hen. 3. The First Argument. [17 Hen. 3, Rot, Cla. mem. 1, 2. Pro utrius. My Lords, and you Gentlemen, Members of M. 1.]-The great Hugh Spencer, in the reign this Honourable Court; I have (as becomes of Edw. 2, was banished, but for rashly counme) been attentive to the Charge which has been selling against theEncounter la forme de la read against me. It appears in that dress it is grande Chartre.' [14 Edw. 2.]—And to put already, (though I presume it shall be clad draw downwards yet one king's reign, and to in other apparel by Mr. Attorney) so specious, the point to which I would apply; I find in the and so great as that my friends (if I have any 42nd of Edw. 3, this Great Charter was not here) begin to fear, the indifferent to doubt and only barely confirmed and commanded to be the partial to desire, and join in my condem- kept in all the points, for those are the words; nation; myself (I hope I am not partial to my- but to prevent any alteration of it, it is enactself) believe, that it will be no more than the ed, That if any statute be made to the conmountain's labour, and when it shall come to trary, that shall be holden for noue.-By this be dissected, will prove to be inane aliquid; Magna Charta it is granted, and enacted too; like the apples of Sodom, that however they if my Lord Coke say true, who saith it is a take the first sense, the eye, as this the ear, do Statute as well as a Charter, being made by as rather foul the fingers that tonch them, than sa- sent and authority of Parliament; That no tisfy the appetite in its expectation upon them. Freeman shall be taken or imprisoned, or he My lord, I am at an unusual bar, and engag- disseised of his freehold or liberties, or free cused in a great cause of a far extendable concern- toms, or be out-lawed or exiled, or any otherment, my fee is life, and my duty is self-preser-wise destroyed; nor will we pass upon him, vation; which in itself were less considerable, if by a precedent of my suffering, the consequence would not prove mischievously epidemical. I do not wilfully refuse to plead to the Charge, but humbly crave leave to offer my reasons for the suspending of my Plea. And if 1 be importunate (yet within the bounds of civility) I beg your pardon, and that I may have a full, free, and an uninterrupted bearing. My lord; When the Jews pressed Pilate to sentence Christ, they obtruded to him that they had a law, and by that law he ought to die. 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 sense, 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 tried, 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, nor condemn him, but by lawful Judgment of his Peers, and by the Law of the Land. We shall sell to no man, nor defer to any man either justice or right. If this be truth and law, which I have in these particulars premised to you; then, my lords, give me leave to take notice, That by that Act by which you are constituted a Court of Justice, you are authorised to try the Freemen of England; not per pares, upon or for offences against articles, and the punishment to reach to life, as the major part of any twelve of the Commissioners shall judge to appertain to justice. Laying these together, a posting rider may read, that these laws are diametrically, and consequently inconsistent. The latter hath its doom inherent by its innate contrariety to the former, and is a building, a superstructure so unsuitable to the foundation, that if it had not a double-edged support, it need no help to be demolished but would fall, I know not whether to say, sua mole, or sua pencilitate. The constitutors of this law are gladijs eincti; and therefore as I am not in opportune place to speak to them, so there is something of danger to speak too freely to them; but my Lord, your lordship, as you are in this place, are (I am sure ought to be) like the escutcheons of princes, with their adopted supporters, Knowledge and Conscience; and if you are, I am confident you will doubt of your commission or warrant to proceed against me, and compel me to preserve an inch of life, by giving away mine and my countrymen's liberty, in condescending to a plea and trial, in this contralegal way, and by power of this act. The Second Argument. My lord; I shall further beg leave to call to your memory the petition of Right; which was made the business of the Parliament, at the time when it was preferred, and received the royal assent; must never be forgotten by those who hold in esteem the care of Parliaments, and gracious concessions of kings. In the Proem, or leading part of that Petition, the Starute of Magna Charta is instanced as to this particular, Trial for life by proper courts, with other the laws and statutes, (some of which I have cited, and the rest shall upon another point in their place) and as it is complained, that proceedings had been by Commissioners Martial, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other laws ought to have been judged; so it is prayed, and accordingly enacted, that no commissions of like nature may be henceforth issued to any person or persons whatsoever to be executed, &c. and this to prevent, lest by colour of them, any of the subjects should be destroyed or put to death, contrary to the laws and franchise of the land. My lord; 1. The Commissioners Martial were not evil in respect of the persons commissioned, being as this power is to you, so those always given to persons of quality and learning; but the evils of them were their proceedings by their own will and opinion, being themselves the Judges and the Jury; offices incompatible and inconsistent with the people's liberties, by the former laws become their rights. When your lordships shall read the Act by which you now sit, I am confident you will grant this power to be of the same nature, though not under the same name; and consequently in that petition complained of, in supposition that such might be, and enacted against in Terminis, that none such should be. 2. For that you are called by the Act, Commissioners, and yet have no commission, but the Act itself; whereas you should, in regard you are not a Court of Record in yourselves, have Commissions returnable at a day, into some Court of Record, where your proceedings might be extant and visible: and as you are now constituted, you have a day prefixed to determine in; but that being come, you are to vanish, and your vestigia will be as imperceptible to the times and men to come, as the trace of a swallow in the air; which is inconsistent with the honour and justice of any kingdom, or any Christian Commonwealth. For that you have only by this Act, a bare and single power to adjudge, and cause execu tion to be done, in case you shall judge 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 tried, as is the law expressly in my lord Dyer [Read's Case, Dyer, fol. 120, 10 Edw. 4, fol. 19.] and in the Year-book of Edw. 4, grounded upon the statute of Hen. 6, 14 of his reign, cap. 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 well where a man is acquit of Felony, and 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 man's case can only be an enlarge ment. 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 balanced and poised, as that they have equal regard to the delivery and freeing the innocent, as to the condemnation of the nocent. And Isidore in his Etymologies says of a law, thus; Erit autem lex honesta, justa, possibilis 'secundum naturam et consuetudinem patriæ; 'loco, temporique conveniens necessaria, et 'utilis; manifesta quoque, ne aliquid incautum per obscuritatem captione contineat; nullo privato commodo, sed pro communi civium 'utilitate conscripta.' And as laws should be, so should courts and the dispensers of laws be. But, iny Lord, if this court must be granted to be a court, yourselves can make no more of it than a Court, ex parie, and set up to serve a particular end, with the privation of the common utility and liberty, however ushered in with a preamble of another stile, of preservation of peace, and prevention of war: but Thucidides will tell you, my lord, in his fourth book, That Turpius est his qui impia tenent insidiare 'honesto prætextu, quam insidiosâ malevo'lentiâ uti; nam violentia videtur aliquid juris 'habere, propter potentiam à fortuna datam, 'sed fraus tantum ab injustitia oritur.' all those Ordinances are out of doors; yet I pray your lordship's 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 be the concernment. 1. For Reason, you are not constituted a Court of Record, which is absolutely neces sary, 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 Trial. 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 auterfoys acquit, and to make his Defence, as also to preserve his estate, Si non legalement acquitte en le Poulterer's Case 9, R. Benegist demant acquittal nui req. 'si non de record,' as also my bencfit, a writ of Conspiracy. To come nearer our own times, the like cause to complain, and the same redress is given in the Act [17 Car. 1.] for abolishing of the Star-Chamber; upou 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, committed to the whole world against the late king by the press: the Chargest against the earl of Strafford, and the Archbishop of Canterbury.—The interest of the subject in these Laws was cried up to be so precious, as that it bad influence even to the absolving of all old Oaths and the imposing of new, and to bring to adventure estate, and life, and soul, rather than to be usurped, or in the least intrenched upon.-Four several Declarations of the present parliament have entitled the subject to them, and to the benefit of the ordinary Courts of Justice, as their birth-right. They have owned the preservation of them to be the cause of the war, and the ends of their affairs managed by their swords or councils; and God's curse is by them imprecated, in case they should ever decline the ends. My lord; We have the Parliament's 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 inter * Wetherel and Darley's Case, 55 Eliz. † Articles contra Strafford. Art. 1, 2, partes 1. 14 part. secunda. See vol. 3, p. 1385. Declaration Dec. 15 1641, Jan. 17, 1641. July 12, 1642. Oct 3, 1642. See 2 Cobb. Parl. Hist. 972, 1042, 1413. 9 Declaration April 17, 1646, Jan 1648. See 3 Cobb, Parl. Hist. 455, 832. rupt the course of justice in the ordinary 'courts thereof.' My lord; I am entitled 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 despoiled, at the parliament's will (according to this precedent) despoilable, 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 aut incognitum.' Attorney-general Pridecur. Take heed you scandal not the Court. The Fourth Argument. Thomas Aquinas (who, though a Papist, is not the less worthy to be vouched, where not Religion, but policy, is the thing in question) saith, That lex est regula et meusura actuum agendorum vel omitteudorum,' not ' Actorum and Omissorum.' And St. Paul says, Rom. vii. 7. Concupiscentiam nesciebam, nisi lex diceret non concupisces.' 6 My lord; your authority is in two several places to proceed against, as Traitors, such who have broken articles before they were made, viz. Whosoever bath, or shall plot, contrive, or endeavour, &c. Whatsoever Officer, &c. bath, or shall deserttheir trust, &c. shall die without mercy. And thus, my Lord, the end of laws and law-making is perverted; which are not merely to punish offenders, but to prevent offences, which amongst Christian men was never otherwise done, but by way of promonition; by laws first interdictory, and then subpenatory. The earl of Strafford did (and very reasonably) take it unkindly, and so expressed himself upon his Trial, that a neglected law should lie moulding amongst old parchments 200 years unused and unexercised, and be at last brought out to measure his last past actions by; or to use his own words, "To lie 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 fuel to feed it." Truly if he had seen these Articles (as he felt after somewhat like them), he would have cried out, and but modestly enough, that it is not mending of the fault, but the destruction of the person, which is manifestly designed in these Articles of Retrospection. Disusage of law, is some excuse for him who falls into a transgression; but the nonexistence of a law is a justification of 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 laws, they must be. deemed part of the laws of the land, and de-. sirable and dispensable by the ordinary courts. of the land, in cases criminal: for extraordinary courts of that kind, have long since (even by the Parliament, of which this is the surviving 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 criminal, it often fails (and properly enough) that especial Commissions of Oyer 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 rendered hac vice, to be triable; 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 John a Stile; and if not, the commissioners are sent down without their errand, if only directed to try J. S. 2. It may fall out, that where there are Treasons or Felonies committed by J. S. they may be accompanied with misprisions and inisdemeanors in J. O. And if the particular crime of Treason, and the particular person of J. S. be only authorized to be enquired of, then the commissioners can do but half their work and therefore this commissary 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 spare, than of a law; and more of a warrant of arbitrary execution, than of an enablement, to and for a judicial and legal proceeding or trial. 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 inquiry, which is a principle of morality 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 administered 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 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 Oath than what are comprized in the Act (which myself and all men else will easily believe you are not), then you are not sworn to any manner of equality. 'I (d) 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, and 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 knowledge, holding some resemblance with those of wit, cunning and power. But, my lord, if your words were as well ushered, and as well paged as those, it were some satisfaction, viz. To do equal right, according, &c. After the laws and customs of the land, and the statutes thereof made.' My Lord as you are my triers also, as well as my Judges, I beseech you to observe the Oath of a Juror, and the difference in sense (in letter, I know, for the dignity sake it ought to differ). You(e) shall well and truly try, and true de'liverance make between our sovereign lord the 'King, and the prisoner at the bar, &c. I presume it is still the same (mutulis 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 to spare, yet not to acquit, or discharge; and your obliga tion by Oath to execute that power, according to your best skill and knowledge. I must needs say, and it is apparent, 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 instead of being tried by sworn Jurors, and adjudged by sworn justices, myself and all who are or may fall into my condition, are to be tried by our sworn adversants, I might have said sworn enemies: and we cannot in reason expect more justice, than when the son lays the wager, the mother keeps stakes, and the father is judge, in a point of controversy. More and better (a) The Oath of the Commissioners. (c) Oath of Justices. (d) Dalton's Justice of Peace, fol. 13. |