God's People how they might be kept from Sin in quiet and have Right done them according to the Customs and Laws Nor did this Law end with the Saxon Race William the Conqueror as he is usually called quitting all claim by Conquest gladly stoopt to the Laws observed by the Saxon Kings and so became a King by Leave valuing a Title by Election before that which is founded in Power only He therefore at his Coronation made a solemn Covenant to maintain the good approv'd and ancient Laws of the Kingdom and to inhibit all Spoil and unjust Judgment And this Henry the first his third Son amongst others his Titles mentioned in his Charter to make Ely a Bishoprick calls himself Son of William the Great who by Hereditary Right succeeded King Edward call'd the Confessor in this Kingdom An ancient Chronicle of Leichfield speaks of a Council of Lords that advised William of Normandy To call together all the Nobles and Wise Men throughout their Counties of England that they might set down their own Laws and Customs which was about the fourth year of his Reign Which implies that they had Fundamental Laws and that he intended their Confirmation as followeth And one of the first Laws made by this King which as a notable Author saith may be called the first Magna Charta in the Norman Times by which he reserved to himself nothing of the Free-men of this Kingdom but their Free Service in the Conclusion of it saith that The Lands of the Inhabitants of this Kingdom were granted to them in Inheritance of the King and by the Common Council of the whole Kingdom which Law doth also provide That they shall hold their Lands and Tenements well or quietly and in Peace from all unjust Tax and Tillage which is further expounded in the Laws of Henry the first ch 4. That no Tribute or Tax should be taken but what was due in Edward the Confessor's Time So that the Norman Kings claim no other Right in the Lands and Possessions of any of their Subjects then according to English Law and Right And so tender were they of Property in those times that when Justice it self became importunate in a Case no Distress could issue without publick Warrant obtained nor that neither but upon Three Complaints first made Nay when Rape and Plunder was rife and men seem'd to have no more Right to their own then they had Power to maintain even then was this law sufficient Sanctuary to all Oppressed by being publickly pleaded at the Bar against all Usurpations though it were under the Pretence of their Conqueror's Right it self as by the Case of Edwin of Sharnbourn appears The like Obligation to maintain this Fundamental Law of Property with the appendent Rights of the People was taken by Rufus Henry the 1st Stephen Henry the 2d Richard the 1st John and Henry the 3d which brings me to that Famous Law called Magna Charta or The Great Charter of England of which more anon it being my Design to shew That nothing of the Essential Rights of English men was thereby de novo granted as in Civility to King Henry the third it is termed but that they are therein only repeated and confirmed Wherefore I shall return to antecedent Times tofetch down the remaining Rights The second part of this first Fundamental is Liberty of Person The Saxons were so tender in the point of Imprisonment that there was little or no use made of it nor would they so punish their Bond-men vinculis coercere rarum est In case of Debt or Dammage the Recovery thereof was either by a Delivery of the just Value in Goods or upon the Sheriffs Sale of the Goods in Money and if that satisfied not the Land was extended and when all was gone they were accustomed to make their last Seizure upon the Party's Arms and then he was reputed an Undone Man and cast upon the Charity of his Friends for Subsistence but his Person never imprison'd for the Dâ—bt no not in the King's Case And to the Honour of King Alfred be it spoaken He imprison'd one of his Judges for Imprisoning a Man in that Case And we find among his Laws this Passage Qui immerentem Paganum vinâ—ulâ—s 〈◊〉 striâ—xerâ—t decâ—m solidis noxam sarcito That if a Man should imprison a Pagan or Heathen unjustly his Purgation of that Offence should be no less then the Payment of Ten Shillings a Sum very considerable in those dayes Nor did the Revolution from Saxon to Norman drop this Priviledge for besides the general Confirmation of former Rights by William surnamed the Conqueror his Son Henry the first particularly took such Care of continuing this part of Property inviolable that in his Time no Person was to be imprison'd for committing of Mortal Crime it self unless he were first attainted by the Verdict of Twelve Men. Thus much for-the first of my Three Fundamentals Right of Estate and Liberty of Person that is to say I am no man's Bond-man and what I possess is inviolably mine own 2. A Voting of every Law that is made whereby that Ownership or Propriety may be maintained That the second Fundamental of our English Government was no Incroachment upon the Kings of more modern Ages but extant long before the great Charter made in the Reign of Hen. 3. even as early as the Brittains themselves and that it continued to the time of Hen. 3. I shall prove by several Instances Caesar in his Commentaries tells us That it was the Custom of the British Cities to Elect their General and if in War why not in Peace Dion assures us in the Life of Severus the Emperor That in Brittain the People held a Share in Power and Government which is the modestest Construction his words will bear And Tacitus saith They had a Common Council and that one great Reason of their Overthrow by the Romans was their not Consulting with and Relying upon their Common Council Again Both ad and Mat Westminster tell us That the Brittains summon'd a Synod chose their Moderator and expell'd the Pelagian Creed All which supposes popular assemblies with Power to order National Affairs And indeed the learned Author of the Brittish Councils gives some Hints to this Purpose That they had a Common Council and call'd it KYFR-Y-THEN The Saxons were not inferiour to the Brittains in this Point and Story furnisheth us with more and plainer Proofs They brought this Liberty along with them and it was not likely they should loose it by transporting themselves into a Country where they also found it Tacitus reports it to have been generally the German Liberty like unto the Concie of the Athenians and Lacedemonians They call their Free-men Frilingi and these had Votes in the Making and Executing the general Laws of the Kingdom In Ethelbert's time after Austin's Insinuations had made his Followers a Part of the Government the Commune Concilium was
the lawful Inheritance of all Commoners That all Statute-Laws or Judgments whatsoever made in Opposition thereunto should be null and void That all the Ministers of State and Officers of the Realm should constantly be sworn to the Observation thereof and so deeply did after-Parliaments reverence it and so care ful were they to preserve it that they both confirm'd it by 32. several Acts and enacted Copies to be taken and lodg'd in each Cathedral of the Realm to be read four times a Year publickly before the People as if they would have them more oblig'd to their Ancestors for redeeming and transmitting those Priviledges then for begetting them And that Twice every Year the Bishops apparel'd in their Pontificials with Tapers burning and other Solemnities should pronounce the greater Excommunication against the Infringers of the Great Charter though it were but in Word or Counsel for so saith the Statute I shall for further Satisfaction repeat the Excommunication or Curse pronounced both in the Dayes of Henry the Third and Edward the First The Sentence of the Curse given by the Bishops with the King's Consent against the Breakers of the Great Charter IN the year of our Lord 1253. the third day of May in the great Hall of the King at Westminster in the Presence and by the Consent of the Lord Henry by the Grace of God King of England and the Lord Richard Earl of Cornwall his Brother Roger Bigot Earl of Norfolk Marshal of England Humphry Earl of Hereford Henry Earl of Oxford John Earl Warren and other Estates of the Realm of England We Boniface by the Mercy of God Arch-Bishop of Canterbury Primate of England F. of London H. of Ely S. of Worcester E. of Lincoln W. of Norwich P. of Hereford W. of Salisbury W. of Durham R. of Excester M. of Carlile W. of Bath E. of Rochester T. of St. Davids Bishop apparell'd in Pontificials with Tapers burning against the Breakers of the Churches Liberties and of the Liberties and other Customes of this Realm of England and namely these which are contained in the Charter of the Common Liberties of England and Charter of the Forrest have denounced Sentence of Excommunication in this Form By the Authority of Almighty God the Father the Son and the Holy Ghost c. of the blessed Apostle Peter and Paul and of all Apostles and of all Martyrs of blessed Edw. King of England and of all the Saints of Heaven We Excommunicate and Accurse and from the Benefit of our Holy Mother the Church we sequester all those that hereafter willingly and maliciously deprive or spoil the Church of her Right and all those that by any Craft or Willingness do violate break diminish or change the Churches Liberties and free Customs contained in the Charters of the Common Liberties of the Forrest granted by our Lord the King to Arch-Bishops Bishops and other Prelates of England and likewise to the Earls Barons Knights and other Free-holders of the Realm and all that secretly and openly by Deed Word or Counsel do make Statutes or observe them being made and that bring in Customs to keep them when they be brought in against the said Liberties or any of them all those that shall presume to judge against them and all and every such Person before-mention'd that wittingly shall commit any Thing of the Premises let them well know that they incur the aforesaid Sentence ipso facto The Sentence of the Clergy against the Breakers of the Articles above-mentioned IN the Name of the Father the Son and the Holy Ghost Amen Whereas our Soveraign Lord the King to the Honour of God and of holy Church and for the common Profit of the Realm hath granted for him and his Heirs for ever these Articles above-xwriten Robert Arch-Bishop of Canterbury Primate of all England admonished all his Province once twice and thrice because that Shortness will not suffer so much delay as to give knowledge to all the People of England of these Presents in writing We therefore enjoyn all Persons of what Estate soever they be that they and every of them as much as in them is shall uphold and maintain these Articles granted by our Soveraign Lord the King in all Points And all those that in any Point do resist or break or in any manner hereafter Procure Counsel or in any wise Assent to Testifie or Break those Ordinances or go about it by Word or Deed openly or privily by any manner of Pretence or Colour we the aforesaid Arch-Bishop by our Authority in this Writing expressed do Excommunicate and Accurse and from the Body of our Lord Jesus Christ and from all the Company of Heaven and from all the Sacraments of Holy Church do sequester and exclude We may here see that in the obscurest Time of Popery they were not left without a Sence of Justice and the Papists whom many think no Friends to Liberty and Property under dreadful Penalties injoyn an inviolable Observance of this great Charter by which they are confirm'd And though I am no Roman Catholick and as little value their other Curses pronounc'd upon Religious Dissents yet I declare ingenuously I would not for the World incur this Curse as every Man deservedly doth that offers Violence to the Fundamental Freedoms thereby repeated and confirmed And that any Church or Church Officers in our Age should have so little Reverence to Law Excommunication or Curse as to be the Men that either vote or countenance such Severities as bid Defiance to the Curse and rend this memorable Charter in pieces by disseizing Free-men of England of their Freeholds Libâ—â—ties Properties meerly for the Inoffensive Exercise of their Coâ—science to God in Matters of Worship is a Civil sort of Sacriledge I know it is usually objected That a great Part of the Charter is spent on the Behalf of the Roman Church and other Things now abolisht and if one Part of the great Charter may be repeal'd or invalidated why not the other To which I answer This renders nothing that is Fundamental in the Charter the less valuable for they do not stand upon the Legs of that Act though it was made in Honour of them but the Ancient and primitive Institution of the Kingdom If the Petition of Right were repeal'd the great Charter were never the less in Force it being not the Original Establishment but a Declaration and Confirmation of that Establishment But those Things that are abrogable or abrogated in the great Charter were never a Part of Fundamentals but hedg'd in then for present Emergency or Conveniency Besides that which I have hitherto maintained to be the Common and Fundamental Law of the Land is so reputed and further ratified by the Petition of Right 3 Car. 1. which was long since the Church of Rome lost her Share in the Great Charter Nor did it relate to Matters of Faith and Worship but-Temporalities only the Civil Interest or Propriety of the Church But with what
Priviledges when the very Tenour of the Words prove the contrary for Freehold Liberties or Free Customs are by the Charter it self supposed to be in the Possession of the Free-men at the making and publishing thereof No Free-man shall be taken or imprison'd then he is free this Liberty is his Right Again No Free-man shall be disseized of his Freehold Liberties or free Customs then certainly he was in Possession of them And that great Father in the Laws of England Chief Justice Cook in his Proaem to the 2d Part of his Institutes tells us that thâ—se Laws and Liberties were gather'd and observ'd amongst others in an intire Volumn by King Edward the Confessor confirmed by William sirnamed the Conqueror which were afterwards ratified by Henry the first enlarged by Henry the second in his Constitutions at Clarendon and after much Contest and Blood split between King John and the Barons concerning them were solemnly established at running-Mead near Stanes and lastly brought to their former Station and publish'd by this King Henry the third in the 9th Year of his Reign And though Evil Counsellors would have provoakt him to void his Father's Act and his own as if the first had been the Effect of Force the other of Non-Age yet it so pleased Almighty God who hath ever been propitious to this Ungrateful Island that in the 20th Year of his Reign he did confirm and compleat this Charter for a perpetual Establishment of Liberty to all free-born English Men and their Heirs forever ordaining Quod contravenientes per Dominum Regem cum convicti fuerint graviter puniantur i. e. but whosoever should act any Thing contrary to these Laws upon Conviction should be grievously punished by our Lord the King And in the 22 Year of his Reign it was confirmed by the Statute of Marleb c. 5. and so venerable an Esteem have our Ancestors had for this great Charter and indispensibly necessary have they thought it to their own and Posterities Felicity that it hath been above 30 Times ratified and commanded under great Penalties to be put in Execution Here are the 3 Fundamentals comprehended exprest to have been the Rights and Priviledges of English Men. 1. Ownershp consisting of Liberty and Property in that it supposes English Men to be Free there 's Liberty next that they have Freeholds there 's Property 2. That they have the Voting of their own Law for that was an ancient free Custom as I have already prov'd and all such Costoms are expresly confirmed by this great Charter Besides the People helpt to make it 3. An Influence upon and a real Share in the Judicatory Power in the Execution and Application of Law This is a substantial Part thrice provided for in those sixteen Lines of the great Charter by us rehears'd 1. That no Amercement shall be assessed but by the Oath of good and honest Men of the Vicinage 2. Nor we shall not pass upon him nor condemn him but by Lawful Judgment of his Peers 3. Or by the Law of the Land which is Synonymous or a Saying of equal Signification with Lawful Judgment of Peers for Law of the Land and Lawful Judgment of Peers are the Proprium quarto modo or essential Qualities of these Chapters of our great Charter being communicable Omni soli semper to all and every Clause thereof alike Chief Justice Cook well observes that per legem terrae or by the Law of the Land imports no more then a Tryal by Proces and Writ original at common Law which cannot be without the Lawful Judgment of Equals or a common Jury therefore per legale Judicium parium by the Lawful Judgment of Peers and per legem terrae by the Law of the Land plainly signifie the same Priviledge to the People So that it is the Judgment of the Free-men of England which gives the Cast and turns the Scale of English Justice These Things being so evidently prov'd by long Use and several Laws to have been the first Principles or Fundamentals to the English free Government I take leave to propose this Question May the free People of England be justly disseized of all or any of these fundamental Principles without their Individual Consent Answ With Submission to better Skill I conceive Not for which I shall produce first my Reasons then Authorities 1. Through the Brittish Saxon and Norman Times the People of this Island have been reputed and call'd Free-men by Kings Parliaments Records and Histories and as a Son supposes a Father so Free-men suppose Freedom This Qualification imports a supream Right such a Right as beyond which there is none on Earth to disfree them or deprive them of it therefore an unalterable fundamental Part of the Government 2. It can never be thought that they intrusted any Legislators with this Capital Priviledge further then to use their best Skill to secure and maintain it that is so far as they were a Part of the English Government they never delegated or impower'd any Men that de jure they could deprive them of that Qualification and a Facto ad Jus non valet Argumentum for the Question is not What May be done but what Ought to be done Overseers and Stewards are impower'd not to alienate but preserve and improve other Mens Inheritances No Owners deliver their Ship and Goods into any Man's Hands to give away or run upon a Rock neither do they consign their Affairs to Agents or Factors without Limitation All Trusts suppose such a Fundamental Right in them for whom the Trusts are as is altogether indissolvable by the Trustees The Trust is the Liberty and Property of the People the Limitation is that it should not be invaded but inviolably preserved according to the Law of the Land 3. If Salus Populi be suprema lex the Safety of the People the highest Law as say several of our ancient famous Lawyers and Law-Books then since the aforesaid Rights are as the Sinnews of this free Body politique or that soveraign Cordial without which this free People must needs consume and pine away into utter Bondage it follows they are the highest Law and therefore ought to be a Rule and Limit to all subsequent Legislation 4. The Estate goes before the Steward the Foundation before the House People before their Representatives and the Creator before the Creature The Steward lives by preserving the Estate the House stands by Reason of its Foundation the Representative depends upon the People and the Creature subsists by the Power of its Creator Every Representative in the World is as the Creature of the People for the People make them and to them they owe their Being Here is no Transessentiating or Transubstantiating of Being from People to Representative no more then there is an absolute transferring of a Title in a Letter of Atorney The very Term Representative is enough to the contrary Wherefore as the House cannot stand without its Foundation nor the Creature subsist without