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Votes Parl. Antient, Wholefom and Fundamental Laws, our 11 Dec.1667. great Charter of Liberties, the Preferver of our
Lives, Freedom and Property ? However too many of the Minds and Spirits of our Country: men are besotted, through that Deluge of Vice and Debauchery, that has over-spread and cover'd the Face of our Land; sure we are, that the right Noble and Virtuous will ever have a high Efteem of those Laws, that were not only dear to our Anceitors
, but famous throughout the World, for an equal Balance of Joftice, whereby every man's Right and Liberty might be weighd
It's observable what that Roman Senator, c. S. Saturninus (2 Lover of Vertue, Liberty, and wholesom Laws) declaims in the Senate: (faith he) “ For to them that know what Vertue is, it « is no small Felicity to live one Hour in Freedom of Mind, and « in a free Country, govern'd by such Laws, which in times pait « have made our Commonwealth to flouris--For in regard a of the present time, there is not any thing that we ought « more earneftly to effect,than to live vertuoully; for only Ver
: « tue is the thing that confirmeth Men in their Liberty. u know how great Mischiefs Tyranny do ordinarily breed in
a publick State ; for they utterly extinguish all Vertue, and « deprive Free-men of that perfect Magnanimity that may be " in them, and teach both to Flatter and to Fear; for that « the Commonwealth is abandond, not to the Wisdom of the “ Laws, but to the Fury of the intemperate Governors.
And complaining of Julius Cæfar's Violation of that edurse of Law whereby the State was polliced: (says he) “ In subyert“ ing the Laws to his good liking, and himself to his partico« lar desires, there is not any kind of Misery and Mischief " that hath not overthrown our City.
Whence we may observe and conclude, that all these horrid Oppressions and Violences, that have been in Ages paft inflicted upon, and offer'd to any People, State or Commonwealth, they have naturally flown from the want of Vertue, or from the de bauch'd Practice of the Magistrates, governing and judging the People by Will and Power, and not by establith Laws: which is the Case of these Prisoners, who yet lie in Durance at the Will of their cruel Adversaries ; because, as one faith,
Sepultum est jus in Regno, praua Voluntas,
Vis da Violentia magis regnat quam Judicium. (The following Report of Mr. Bufbell's Cafe, by that Great Man the Lord Chief Justice V AUG HAN, having a near Relation to the first (especially) of the foregoing Tryals, the Reader is here presented with it, on the Defire of fome Gentlemen, who wish well to this Collection.]
HE King's Writ of Habeas Corpus, Dat. 9 die Novembris
, Sheriffs of London, to have the Body of Edward Bufhell, by them detaind in Prison, together with the Day and Cause of his Caption and Detention, on Friday then next following, before this Court, to do and receive as the Court hall conlider ; as, also to have then the said Writ in Court. Of which Writ, Patient Ward and Dannet Foorth, then Sheriffs
of London, made the Return following, annex'd to the
said Writ. That at the King's Court, of a Session of Oyer and Terminer, held for the City of London at Justice-Hall in the Old-Baily, London, in the Parish of St. Sepulchres, in Farringdon-Ward without, London, on Wednesday 31 die August 22 Car. 2. before Sir Samuel Starling, then Mayor of London, and divers other his Majesty's Justices, by virtue of his Majesty's Letters Patents under the Great Seal of England, to them, any Four or more of them, directed to enquire, hear and determine according to the Tenor of the said Letters Patents, the Offences therein specified: and, amongst others, the Offences of unlawful Congregating, and Assemblies within the Limits appointed by the laid Commission within the said City, as well within Liberties as without. Edward Bushell, the Prisoner at the Bar, was committed to the Goal of Newgate, to be there safely kept under the Custody of John Smith Knight, and James Edwards, then Sheriffs of the said City, by virtue of a certain order then and there made by the said Court of Şelhons, as followeth.
Ordinatum eft per Curiam hic quod Finis 40 Marcarum separatim ponatur fuper Edwardum Bushell, and other Eleven persons particularly nam'd, and upon every of them, being the Twelve Jurors then and there sworn, and charg'd to Try several issues then and there joyn'd between our Lord the King and William Penn and William Mead, for certain Trefpafics, Con
tempts, unlawful Affemblies and Tumults, made and perpeŠtrated by the faid Penn and Mead, together with divers other s unknown persons, to the Number of Three hundred, Unlaw.
fully and Tumultuoully afsembled in Grace-Churcb-ftreet in Lon. B dan, to the Disturbance of the Peace whereof, the said Penn
and Mead were then indicted before the said Justices. Upon which Indictment the said Penn and Mead pleaded they were not Guilty, for that they the said Jurors, then and there the faid William Penn and
William Mead of the said Trespasses, Contempts, unlawful Assemblies and Tumults, contra Legem buja Regni Angliæ, & contra plenam do manifestam Evidentiam, do contra dire&tionem Curiæ in materia Legis hic de din super præmiffis eifdem furatoribus versus præfatos Will. Penn do Will. Mead in Curia hic aperte dat am do declarat am, de premiffis iis impofitis in l.di&tamento predi&to acquietaverunt in Contemptum Domini Regis Am legumque fuarum do ad magnum Impedimentum do obftru&tistem Juftitia, necnon ad malum exemplum omnium aliorum furatorus in consimili cafu delinquentium. Ac super inde modo ulterim ordinatum est per Curiam bic quod præfatus Edw. Bushell capiatur committatur Gaola di&ti Domini Regis de Newgate, ibidem remanjarus quousque solvat di&to Domino Regi 40 Marcas, pro fine fuo predikte, vel delibera'us fuerit per debitum Legis cursum. Ac eodem Edwardo Bushell, ad tunc ibidem capto lo commisso existente ad di&um Gaolam de Newgate, sub Cuftodia prafat. Johannis Smith & Jacobi Edwards ad tunc Vic. Civitatis Lond. predi&t. & in eorum cuftodia in Gaola predi&t. existente do remanente virtute Ordinis prædi&t. iidem Johannis Smith do Jacobus Edwards, poftea in eorum exitu ab Offcio Vic. Civitatis Lond. prædi&t. scilicet 28 die Septembris Anno 22. fupra di&o eundem Edwardum Bufbell, in di&a Gaola di&ti Domini Regis adtunc existentem, deliberaverunt nobis præfatis nunc Vicecomitibus civitatis prædi&. in eadem Gaola salvo custodiendum secundum tenorem & effe&tum Ordinis
prædi&id. Et quia prædi&tus Edwardus nondum solvit di&to Domino Regi
predi&tum finem 40 Marcarum, nos iidem Vicecomites Corpus ejusdem Edwardi in Gaola prædi&ta hucusque detinuimus ; & hæc eft caufa Captionis do Detentionis præfati Edwardi,cajus quidem Corpus coram præfatis fuftitiariis paratum habemus.
The Writ of Habeas Corpus is now the moft usual Remedy by which a Man is reftor'd again to his Liberty, if he have been against Law depriv'd of it.
Therefore the Writ commands the Day, and the Cause of the Caption and Detaining of the Prisoner, to be certify'd upon the Return ; which if not done, the Court cannot postibly judg whether the Cause of the Commitment and Detainer be according to Law, or againft it.
Therefore the Cause of Imprisonment ought by the Return to appear as specifically and certainly to the Judges of the Return, as it did appear to the
Court, or person authoriz’d to commit; else the Return is insufficient, and the Consequence must be,
That either the Prisoner, because the Cause return'd of his Imprisonment is too General, muft be discharg'd: whenas if the
Cause had been more particularly return’d, he ought to have been remanded; or else he muft be remanded, when if the Cause had been particularly return'd, he ought to have been discharg'd: Both which are Inconveniences not agreeing with the Dignity of the Law. (There is a specious Exception
to this Rule, but doth not materially vary it, as shall apor si pear.)
In the present Case it is return'd, That the Prisoner being a Juryman among others, charg'd at the Seffions-Court of the old Baily, to try the Iffue between the King and Penn and Mead, upon an Indíatment for afsembling unlawfully and tumul tuously, did contra plenam do manifeftam evidentiam openly given in Court, acquit the Prisoners indicted, in contempt of the King, doc.
The Court hath no knowledg by this Return, whether the Evidence given were full and manifeft, or doubtful, lame, and dark, or indeed Evidence at all material to the Issue ; be. cause it it not return’d, what Evidence in particular, and as it was deliver'd, was given. For it is not possible to judg of that rightly, which is not expos'd to a man's Judgment. But here the Evidence given to the Jury is not expos d at all to this Court, but the Judgment of the Court of Sessions upon that Evidence is only expos’d to us; who tell us it was full and manifeft. But our Judgment ought to be grounded upon our own Inferences and Understandings, and not upon theirs.
It was said by a Learned Judg, If the Jury might be fined for finding against manifest Evidence, the Return was good, tho it did not express what the Evidence particularly was, whereby the Court might judg of it, because
. returning all the Evidence would be too long. A Atrange Reason! For if the Law allows me Remedy for wrong Imprisonment, and that muft be by judging whether the Cause of it were good or not, to say the Cause is too long to be made known, is to say the Law gives a Remedy which it will not let me have, or I must be wrongfully imprison's ftill, because it is too long to know that I ought to be freed. What is necessary to an end, the Law allows is never too long. Non funt longa quibus nihil eft quod demere posos, is as true as any Axiom in Euclid. Besides, one manifest Évidence return'd' had fuific'd, without returning all the Evi. dence. But the other Judges were not of his mind.
If the Return had been, That the Jurors were committed by an Order of the Court of Seffions, because they did minus juste acquit the Persons indicted :
Or because they did contra Legem acquit the Persons indifted :
Or because they did contra Sacramentum fuum acquit them.
The Judges cannot, upon the present, more judg of che legal Cause of their commitment, than they could if any of these Causes, as general as they are, had been returnd fur the Cause of their commitment. And the fame Argument may be exa&tly made to justify any of these Returns, had they been made, as to justify the present Return; they being equally as legal, equally as certain, and equally as far from poffefsing the Court with the Truth of the Cause: And in what condition should all Men be, for the juft Liberty of their Perlons, if such Causes should be admitted suificient Causes to remand Persons to Prison?
To those Objections made by the Prisoner's Council again the Return, as too general ;
1. It hath been taid, That Institutum eft quod non inquiratur é discretione Judicis.
2. That the Court of Sessions in London is not to be look’! on as an Inferior Court, having all the Judges Commissioners. Tha: the Court having heard the Evidence, it muft be credited: that the Evidence given to the Jury of the Fa&, was clea: and not to be doubted.
As for any such Inftitution pretended, I know no such, nor believe any such, as it was apply'd to the present Cause: But taking it in another, and in the true senke, I admit it for truth; that is, when the King had constituted any man a Judg under him, his Ability, Parts, and Fitness for his Place, are not to be reflected on, censur'd, defam'd, or vilify'd by any other Person, being allow'd and ftampt with the King Approbation, to whom only it belongs to judg of the Fitnes of his Ministers.
And fuch scandalous Assertions or Inquiries upon the Judges of both Benches is forbidden by the Statute of Scandalun Mai Datum, 2 R. 2. c. 5. Nor must we upon supposition only either admit Judges deficient in their Office, for so they fhould never do any thing right; nor on the other fide, muf we admit them unerring in their Places, for so they Thould never do any thing wrong.
And in that sense the Saying concerns not the present Case.
But if any Man thinks that a Person concern'd in Intereft by the Judgment, Action, or Authority exercis'd upon his Perfon or Fortunes by a Judg, must submit in all or any of these to the imply'd Discretion or Unerringness of his sudz without seeking fuch Redress as the Law allows him; it is a Persuasion againft Common Reason, the received Law, and Vjag? both of this Kingdom, and almost all others.