| OCR Text |
Show ,s t!i Truth Refcued jf!Jtn lmp!>fture. Vot.I. ,6 c. S· Fifthly, !he fifth Reafon and Argument to evince the Illegality offuch ~ Arbitrary Proceedings, may be drawn from that Maxt~ of Law, more _th4n. QJ1Ce ufed by the Learned Cook, 2 Inft. 56, and )26, VIZ. Lex eft rutif}inu~ Cif]ir The Law is the fureft:San8:uary that a Man can take, and the !hong· eft .F~nrefs to prote6: the Weakeft: Yea (fa.ith that. A_uthor) Sub clypeo Legil nemo Jecipitur, It fails none that pu.t their Tr~it JD tt. \:Vc haven& Rcafon to believe, that that Author put an Encom1um upon th.e L~ws of Englmrd (we mean the Fund:;~mental Laws, the Charters and Ltbetties, of which he then treated) beyond their real W_orth and. Value: But rnuft ra· therconclude, that fuc.h Aibitrary Proc.eedJngs, w.htc.h leave theFr~emen of England void of Defence, and Remeddefs ofRel.tef, are not according to tHe Rules and Mllxims of Law, but clearly otberwlfe. And that the Fining and lmprifoning of Jurors are fu,b, ma-y farther appear in tbefe Fankulars. Firjf, In that th~ jurors are conde~ned without a Trial, whethe~ they have done their Duty or not; that IS, whether they have found wuh or againft their Evidence, f.!! c. 2. Secondly, In that the Judgment .againft them (be i~ Vicious or ~rroneous either in refpe8: of the Irregulanty of the Proceedmgs, or Nulltty of the'Faa charged upon them) caunot be cxamin'd or revers"d by \Vrit of Er~~TTbird{Y, In that no fucb Superieur Court can. recei\'e, or hear their Appeal, as upon lndiClrnents, and all other Proceedmgs by due Courfe-of Law they might; . . . Manifefting that fuch Arbitrary Proceedmgs agatnft J~rors, are far more feverc and bard than any Conviftions of Traytors, Thieves. and Murderers, (who are aPprehended F!ogranti DeliflD) and tryed by duC Coutfe of La.A~d fince they are fo unreafonable, that they allow ~ot a jury of Twelve (Botti er Legale~ Homines) Good and Lawful Meo, narher Liberty of J:>e.. fence before Judgment, nor an after Trial or E11mination of the F~Cl for which they were condemned •. we muft. n.ereJfanly conclude thef!I Illegal and irrational fo null aod vo1d, accordmg to that known Maxtm, Cook 2.Inft. Jr. Ce.ffante rati011e Legis ce.ffat ipfa Lex: And leave them to that ju!! Cenfure of the Parliamenc of the ComAions of England, THAT THEY WERE lNNOV,ATIONS IN THE TRYALS OF MEN FOR THEIR LIVES AND LIBERTIES. Votes Par. Ang. u. Du. 1667. 'S. S. His Second, Third, and Fourth REMAI\KS Examin'd. (Saith S. S.) If it he objeEled, That; in the ptefent Cafe, being an fnCiarnent for a Trcfpafs, an .Jittaint doth lie, and therefore ought to _be punilhed in Attaint: Which he thus himfelf 3n_fwers, Breok· Tide litta_mt 1--;o, faith, Er fi, admittitur, l}_tJtJd fi leRoy {Mit meremenr. Parry, .AtrOJ!It. ne gifl. Where the King is Tole Party, Attaint doth not lie: In our pref~nr Cafe,. the King is fole Pa;ty, and therefore by the Old Law no .ditamt doth lie. In the anfwering of his owg Ohjcaion, the- A-uthor has taken up no lefs than four or five Pages of his Difcourfe ; and the whole of his fecond, third, 3nd fourth Remarkr, in quoting nina or ten Book-Cafes and Srarures, to prove his Alfertion, thac no Attaint lies where the King is Party ; ~nding his Libel thus--- From tbefe Four Remarks I conclude Norhtng, but le,lVC rht Determination of tbis important Affair to the Hononrahle Stft.tr of our Law; and pray, tbnt in thir, and. in all. other B~t./inr.ffes ofConc~rnmem, God (the Great ]11d1.e of Heaven and Earth) would &,uide rmd d1tdl them. .dnfw. Fir}/, The. Righteous eiod (whom thi< Libeller impretateo) h" declare_d, That tbe Pray(rl of th( Wirked are an Abomint~tio11 to him; P,wv .• !x. and 28, 9· VoL. I. :rruth Refcued from Impofture. Secondly, The Friroloufnefs and Impertinence of this RihJldry to the 167o. Controve'rfie in E::land, . will appear ro the meaneft Capacity, that will rak~ ~ the Pains to !compare' . it with the Libeller's own TeX't, viz. Tbe Fining of that ]11ry tftttt gaVe TtoQ ,onrrary Verdills fuflified. Tbirdlj, Tbc King being Party, fo no litiaih~ liu (the Matter of thefe Three lalt Remarks) isfo far from being an ObjeE\ion, to be altered by the Friendspf thofc OBpre!fed Jurors, that they no\ only grant to him, that no 4tiam1 lieS agaJnfi: fuch Jurors, but r.hlt i~_ip: horridinjuftice and Op· preffion to punifh them by that, or any other. Way ; Wh,ir::h .We fball clear briefl.J.. il} tPe;fe P:uriculars. I r J 1. FirTl, Ic might fuffice any Rational M:tr1, That Jurat~, t;~rwixr the King and Prifoners, ought not thus (by Arbitrary Fines-, · Ot' other Means) to have Punifhment inflifled upon them. ir\ as much as the Ancient Common Law· of EnJ!and, ~ fo far fro~ ~ircUing of Pains, that it declareS, Thai alJ &jlraintt oJ l#rors tJre Abufiom of rbe Laid: Which We have fron;t • :JJnJrew Horn, a Learped Writer ot the L:tw in the Time of Sl. '· who al)long!! the great I)Bufes of tbe Common Law (for fomt of whicb King Alfred extcuted fevtral. of his Corrupt Judges) fers ddwn this, viz. It 11 .Ahufe to compel Jurors lo fay rbqt wbicb rhey llnow not, by Di/1refs of Fir.e ttnd Imwifoament, ofrer rbdr Verdi&. (Title. Abufions .oftheCornmon Law, qp. 5• §.I. 2d. In that t~e Gr11nd Councils of EnglfzRd in Parliament~ Vide Potton's Statues, Title Attaint. Have no lefs then Twenty feveral Times, given their Judgments about rhe falfe or vicious Ver~ias of Jurors, enaCting twenty o11e Sraruret for the correfilng and puoifhing of offuch De(aulrs. AnddQubtlefs (they having been fo often 'nelr the Point) bad tbeLaw qf England, and Right and Liberty of it's People, adq1itted of fuch Punijhmenrr, as the 1Mvujaries of borh, at this Day put i~ Putl:ice, they would h:tvC let us-underftood ,it, and not fuffer the I..aw fo many Ages, to be, (Vagum f!J incog11itum) bur tbofcCozmcils making no fuch Breach, upon our Fundal mental Laws, Rigbrs,. and Liberties, and this oi.lr prefenr Parliament, bY. their Refolves, con6rming the fame, we may ,·and mnft nee the conmtry Procedures, Innovationr, fo iUegltlandoppreffive; Buteo conclude, 3d. Lex f~mpu intendit quod convenit Rationi, the Law, (fays Cook_, J Jnft. till. 103.-j always intends that which is agreeable toR eJfon. And Rea{on will wirh Eafe reconcile, wherefore the Law h:is not prefcrihed nor dirct\:ed a P11niflnnent, for Jurors, who give a Verdi8: acCording ro their eonfcicttces, though contrary to the Senfe of a Courr or Bench ot Juflices, inCaufes where' the King is Party, as for Felony, Trefpafl&..c· viz. As dur EnglifhGovernment is now ftablilhed (Poreflm Regia eft /11cere Ju/litiam, Co. •· ln. ;J).) l'cs legll Power to do Ju!lice. And thetefote all lndiC\men\S are profecured in the Name of the King, although the Felony, Trefpafs, &:c. was committed._ upon th._e Pepple, wh? really ,-received tlie Torr, and Wrong; yet becaufe the 'King-has undertaken, fot the Safety, Defence and Ptoteaion of his Subjefls, the Trefpafs f.J',. is faid to be done to him: Yet Experience and Reafon tell us, that the People. of England ace not therefore the lefs i'llttrefled in, nor will be the lefs careful of the Security of their Perfons and Eftates, but do and will ufe their uttermoft Endeavour, to defend the firfi from Violenc.e, and preferve thefecond from Ruin. So Jft. the (Boni f:J Legales Homines) or Jurors impannelled to do }ufiice uponfuoh Felons, f.!! c. being free-born Englijh Men, are ~s nearly interefted and concerned in the Pun11hmenr of publick Offender~, as any who are faid to pro· fecurc. And 2dly, the Ltro prefurning they would be no more treocbaoul to their own Pence and Safety, the King, faithfnl to preferve them, thought good mlay no ather-Obligation or Engn.i.ement upon Jurors in fu~h Cafes, but the Confideration -of their own Wefll, Peace, :1nd Safetb W~Jch many hundred Years, bas by Experience been fuffitienr, TiU . J~tftrces on the Benches and Seats of Judi,nture~ turned Informers aud Pro(ecmors, an~ infield of not knowing Perfons in ]11dgmrnr, appeared (cootrary t~~~~~) |
