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Show 4 fueh Exception, is efiablifhed upon fuch Principles as have not yet been fhaken, nor do we fuppofe that the Reafonsand Authorities there offered wtll ever be anfwered. The Subfiancc of What IS there printed, would have been repeat, ed in the Cafe of Zenge‘r, had not thefe Gentlemen thought fit to CONDEMN its and the Exception: UNHEARD. This furprlzmg MeIhOd of ,COnduélt, is not to be warranted by the Practice of any Conntry, but where ARBITRARY POWER rcvails, and where TYRANTS rule and SLAVES obey. How unwarrantab e fucha Precedent, in an Englzyh Court of Judice IS, and what is the plain Tendency of it among a free People, needs but little Penetration to difcover. ifi 5. Nothing can be more evident, than that by the Laws of England, the l s "l ‘ lVrit, as the Owl/lion or Tran/pofltion of a ll'vn'fl', Srllaln'e or (la/(fa, as it" 15 of ‘ ah/zteahle l'lh'it; 2, or, her/71W the King e/rerl liq/"ore the llh'it 117.15 l'ronght ', or, he- ' cal/fl: the U'r/"lfi i5 fit/fa in the Duty cf the Date 3 0r, herbaufe the (.hntmiylz‘on 7':- ‘ quireth the A_ ocintiozz of one who is not prrfent ‘, ()l‘, luxlvngfe the ll"rit was never cfenlerl‘, or, hemufe the F4151? was not rlone within his furifiz'ic't'ion, or, in a ‘ Plea not there determinahle ', or, heean/h the _‘771n'ge' hath not Power or Cont/fance, ‘ either If the Quality or the anntit} of the Thing. - - _ This finglc Authority proves, not only the Right oFthC Subjet‘t to take luclt Exception to the Commiflions of Judges, but alfo lhcws many Cnul'es and Grounds for it. Sulljefl may in a" Court: plead to the yurz'fdifi‘ion (12 Co; 53.) This was the Opinion of My Lord Coke; and if what that Oracle of the Law laid, was true, it cannot but be efleemed a bold Aft in our Judges, not only to deprive the Suhjeé? of that Right, hutalfo to inflifl one of the mo]? fevere szifhmenti, for their mode/ll} claiming it. , 1 6. It is laid in Capt. Streater's Cafe (State Tryalr, * Vol. I. pag. 750.) That our Forefifath‘ers left us a Law, by which we might demand Juflice, and not be necelhtated to make ufe of Friends to beg Juflice 3 and in Proof of it quotes Mirronr, Chap. 3. 9' 6. ‘ of Exceptions to the Power of a Judge, thus it is, ‘ Sir, I demand the Hearing and Sight ofyour Commiflion, h} which you claim fir ‘ rifdiélion over me. ‘ Anna 13 Elm. I. Chap. 3. When any Man is impleaded before any Jultices, ‘and doth alledge an Exception, praying that the Jullices will allow it; ‘ which if they will not allow, (Vic. he {hall require the Jufiices to put to ‘ their Seal, 6‘6. ~ ‘ My Lord (lays Capt; Streater) this Law of England is a Law of Freedom And what was here above 500 Years azo declared to be Law, was, in the Cafe of Mr. Van 1) mt, proved by many Realons and Authorities. to have been the Law in all pal't Titties; and allb, that it flill is the Right of the Subjcfi, and the Law of the Land to this very Day. or 8. But as the Caufe of Mr. Van Dam was a Civil (Zinfe, and the Examples thcrc given, to prove the Right of the Subjec‘l' to plead to the Jurildiétiou, and to take Exception to a Judge's Commillion, are chiefly taken from Cat/fer ofthe flime' Nature, therefore, to bring: the Matter more home to the Cale of our Client Zenger, we be‘: Leave to add here fume modern Evamp/er, even in criminal Caufec, that prove the fame Point. And the fame Examples will allb clearly prove, that a Council's ligning fuch Plea, or Exception, which he thinks pertinent to his Client's Caulk, cannot, confident with Realon or Low, be termed a CONTEIVlPVI‘-j as has groundlefslybccn luggcltcd againll us in the aforefaid Order. q 9. Butwe mulltirl't oblcrvc here, that it is a Rule in l'leadinz (asz'n Regnla Pl/I‘C‘ilfllltll 56) That all l‘pccial Pleas (which thole to the Juril‘dié'Cion particu- ‘ and a Law of Freeman, and not of Slave: 3 it is a Law that {etleth a Right in ' ‘ its Subjects. ' larly arc) ought to b: ligncd by Council, othcrwilc it is a fulficient Objcé‘tion againll them, (which Rule is exemplilicd in State Tryalr, Vol. 3. pag. 229. and 1 1. Thus has the Law and Liberty of the People, been always underflood to be in our Mother Country. And in the fame Book and Chap. cited by Capt. in Vol. 4. P/{L'~ 212, 213, 214.) From whence \vclmay infer, that when a Plea to the Jurildic‘tion, made by the Advice ofCoanctl, is'offered, or received, Tt Streater, (Mirrour Chap. 3‘. 9' 6.) it is further faid, ‘ that the Party may plead :thus' : Sir, I appeal from this Commiflion, heeaufe it malteth no Mention of the (Caufé, for which I ma: brought to yudgment, or not of that Point ', or, hecaufe you have no Cognizance in fuch a Point ‘, or, hecaufe it is vicious, and that may ‘ he diner; War, as zf it he not Sealed with the King'r Seal of the Chancery 3 fir ‘ none is tyed toyzelal Ohedienee, according to the Law: and Ctr/lam of the Realm, to 3 o . . o ‘ the King's Privy Seal, or to the Seal of the Exchequer, nor unto any other Seal, ‘ httt only to the Seal which is afllgned to be known of the common People, and eflte‘ czally tn :‘f'ttrifdiclion: and original th-itr, If not for the King only. Or it may he ‘ woman-heraufe the Seal is counterfl'iteol or falfly‘yed -, or, hecmtfe the King is not ‘ namea" in the Writ, he not being out of the Kingdom, nor in lVara' ', or, hecauj}: & the Writ containeth Summon: in the Ac‘lion where it is petfhnnl ', or, Attachment ‘ ‘ ‘ ‘ _ where the Aflion 15 mixt or real ‘, 0r, hecanfe the Seal is not fiz/lnezl to the Parch- meat, but one may remove it, and take it from it at his Pleafnre ', or~ hearty/i! the PVrzt was lit-ought too late, or too foon :, or, hecaufe it hath Razor-e, or Interlmfng, anal Diverfity of Hands andl of Words, or fol/2' Latin, or, heeanfe the l'lh‘itis written upon Paper, or Parchment which {a forbidden 3 or, for Dtjaultfh rznd in the ‘ ll'l'ril? "‘ The zd Edit. is ufed in this Ar ument exce t in this :09. of 2d Edition. 3 P notr. tior. Whish i;, .‘0 l4» ,‘JSIKi‘ ' i Tt l t-l ' » ' l. Q‘ 7 l C u M conlequcntly is to be cfleemed figncd by Council, tho' it 15 not exprefsly mentioned, to be figned by Council. q 10. The firl‘t modern Cafe we {hall mention, is the Cafe of Fitzharris (State Tryolr, Vol. 3. 229) who, in the Year 168r,_ was indicted of High Treafon. That Man ofFered to plead to the Jurifdiétion of the King's Bench (whole Powers our Judges leem to claim by the common Law) but the Judges there were lo far from thinkingT it a Contempt in him, to oltcr to'plead to their Jurifdiéfion, that they allignetl him feveral of the bell: Councrl in England to draw it, and gave him three Days Time for thofe Councrl to draw that Plea in, which Pleathofe Council drew, and brought it into tlicKing's Bench, and prayed thatitmightbe received,and it accordingly was received, and the AttorneyCeneraldemurred to it, andtheCounmlforthe Prifoner Joyned in Demurrer. I believe none will lay, that the Time in which this Example happened, was the mol‘t Favourable to the Liberty of the Subject :, yet even then it was loOk'd upon to be lawful to plead to the Jurilldifhon of the King's bench, the highefi Court of Common Law ofordinary Jurildiflfion 1n the Kingdom ', and it was n0t cfieemed any Crime or CONTEMPT for a Lawyer to fign and lilcfuch Plea. q 1 I. A fccond Example to this Purpofe, is the Cafe of the Lord Delanzere (State Trjals, Vol. 4,. am.) who was tryed for High Treabn, 1n the Elgar x 5. |
