JUDGES JUDGED out of their own mouthes OR The QUESTION Resolved by MAGNA CHARTA c. Who have been Englands Enemies Kings Seducers and Peoples Destroyers from Hen. 3. to Hen. 8. and before and since Stated by Sr. EDVVARD COKE Kn ◠late L. Chief Justice of England Expostulated and put to the Vote of the People by J. JONES Gent. Whereunto is added Eight Observable Points of Law Executable by Justices of Peace Abusum ego non usum forensem damne Ex legibus illis quae non in tempus aliquod sea perpetuâ utilitatis causâ in aeternum latae sunt null abrogari debet nisi quam aut u sus ceärguit aut status aliquis Reipublica inutilem fecit Tit. Liv. lib. 4. dec 4. LONDON Printed by W. Bently and are to be sold by E. Dod and N. Ekins at the Gun in Ivy-Lane MDCL To the Right HONOURABLE HONOURABLE Right WORSHIPFULL And Well-beloved the COMMONS and PEOPLE of England Universally BEcause Magna Char. Printed in English An. 1564. and bound up with other Statutes at large too Voluminous and costly for the generality to read or buy doth yield less profit than hath been long necessary I have presumed at the instance of some to Dedicate this Treatise to you all as it concerneth the good of all that be or would be good the hurt of none that have left any unhurt wherein you shall find so many Chap. of Mag. Char. Confir Char. Art super Char. and other Statutes at large corroborating the same and the L. C. Exposition thereupon with some Expostulations and Queres of mine own as I thought requisite or convenient for these times The rest of the Charter concerning the Church yet unsetled or the Kings Tenures otherways disposed of I have omitted as useless desiring that thus much may prove useful to all undertakers of Reformation as well Martial as Civil Whose Servant to my power I shall ever be and continue with due faithfulness and humility Jo. Jones The Great CHARTER of the LIBERTIES of ENGLAND Granted to the People of the same By King HENRY the third And accorded between him and them in diverse full Parliaments as followeth viz. HENRY by the Grace of God King of England Lord of Ireland Duke of Normandie and Guyen and Earl of Angeow To all Arch-Bishops Bishops Abbots Priors Earls Barons Sheriffs Provosts Officers And to all Bailiffs and our faithfull Subjects which shall see this present Charter greeting Know ye that We to the honour of Almightie God and for the salvation of the souls of our Progenitours and Successours Kings of England to the advancement of holy church and amendment of our Realm of England of Our meer free will have given and granted to all Arch-Bishops Bishops Abbots Priors Earls Barons and to all Free-men of this Realm of England for evermore First We have granted to God and by this present Charter have confirmed for Vs Cap. 1. Liberties and our Heirs for evermore That the church of England shall be free and shall have all her whole rights and liberties inviolable We have granted also and given to all Free-men of our Realm for Vs and Our Heirs for evermore these Liberties under-written to have and to hold to them and to their heirs of Vs and Our heirs for evermore Here be four rehearsals saith the Lord Coke of four notable causes of the making this Law Lord Coke upon Mag. Chart. Fol. 1. First for the honour of God Secondly for the health of the Kings soul Thirdly For the exaltation of the church Fourthly for the amendment of the Kingdom And all granted to all subjects and their heirs from the King and his heirs for evermore That the great Charter might live and take effect in all successions of ages for ever Expost and Quer. The last of these causes which the L. C. in his Preamble calleth the ends for which this Charter was made being for the amendment of the Realm was saith the L. C. upon the first chapter of confirmatio Chart. fol. 529. to amend great mischiefs and inconveniences which oppressed the whole Realm before the making of both Charters viz. This and the Charter of the Forrest which saith the L. C. in his Preface were declarative Acts of the old common-Common-Law of the Land and no introductives of any new Law If the mischiefs and inconveniencies of the Realm were great before the said Acts were made to declare the Laws of the land which formerly the lawyers reserved to themselves till then undeclared Were there not greater since those Acts were made and the Lawes thereby declared and since the accord of King and People to keep the same inviolable when and as often as they were violated by Kings and their Counsel learned in the Laws As hereafter shall appear We Cap. 8. Debt Debtors Suerties nor Our Bailiffs shall not seise any lands or rent for any debt as long as the present goods and chattels of the debtors do suffice to pay the debt and the debtor himself be ready to satisfie Therefore shall neither the pledges of the debtor be distrained as long as the principle debtor is sufficient for payment of the debt and if the principal debtor fail in paiment of the debt haveing nought wherewith to pay or will not where he is able enough Then the pledges shall answer for the debt and if they will they shall have the lands and rents of the debtor until they be satisfied of that which they before paid for him except that the debtor can shew himself to be acquitted against the suerties We saith the Lord Coke spoken in the politique capacitie of a King L. Coke upon M. C. fol. 19. extendeth to his Successours And by Bailiffs are meant Sheriffs who write Baliva mea c. And by the words shall not seiz is expressed the Kings Grace who by the common-Common-Law had Execution against his Debtors bodies lands and goods And by the Statute of 33. Hen. 8. cap. 9. The Sheriff is to inquire c. and to extend all Lands Goods Chattels c. and 〈◊〉 take and imprison the Bodies as by that Stat. appeareth and as the daily practice sheweth Expost and Quer. If We extend to Successors even to King Hen. 8. Why not longer If Magna Charta was to live for ever Why not hitherto If the King of his Grace remitted by this Act the execution which the Common Law gave him before against his Debtors Bodies Lands and Goods in case of having nought wherewith to pay through decay of their estates by unavoidable necessities then the Kings Debtors obtained of the Kings Grace as much Liberty for their bodies as this King gave to all his free subjects by the 29th of this Act viz. No Free man c. And for his Estate as much as the proverb saith Where nothing is to be bad the King looseth his due If the King did not remit so much by this Act then did he gain thereby more
Justices in Eyre should Try him Why not such a Writ still Since odium which the Lord C. defineth to be hatred and atia malice and Prisoners for those causes are no scanter now than in former times And why not Justices in Eyre made since competent Judges by Commission without Writs to determine such matters which before they could but inquire of by Writs as the Lord C. saith elsewhere though he saith here to try them imployed for that service And now if it be Lawfull for a Judge of the Kings-Bench to determine a debt and to grant an Habeas Corpus for money to bring the Prisoner before him to put in Bail Why should he take money for the Writ and refuse sufficient Bail tendred after Oath made of their sufficiency without the plantiffs consent Nay after acceptation of the Bail Why refuse to File it No Free-man shall be taken Ca 2.9 No Free man c. or imprisoned or be disseised of his Freehold or Liberties or Free Customs or be Outlawed or Exiled or any way otherwise destroyed nor we shall not pass upon him but by lawfull judgement of his Peers or by the Law of the Land we shall sell to no man we shall denie or deferre to no man either Iustice or Right Free-man extends to Villains both Sexes Lord Coke upon Mag. Chart. Fol. 46 c. c. Vpon this Chapter as out of a root many fruitfull branches of the Law of England have sprung It containeth nine several Branches First That no man be taken or imprisoned but by the Law of the Land viz. The common-Common-Law statute-Statute-Law or Customs of England c. Secondly No man shall be disseised viz. put out of his Freehold that is Land Livelihood or Liberties or free Customs such as belong to him by his free Birth-right unless it be by the lawfull judgement and verdict of his equals or by the Law of the Land that is to speak it once for all by the Due course and proces of the Law Thirdly no man shall be Outlawed or put off the Law viz. Deprived of the benefit of it unless he be Outlawed by the Law of the Land Fourthly No man shall be exiled c. unless according to the Law of the Land Fifthly No man shall be destroyed c. unless by verdict or according to the Law of the Land Sixthly No man shall be condemned c. but by the judgement of his equals or according to the Law of the Land Seventhly We shall sell to no man Justice or right Eighthly We shall denie no man Justice or right And Ninthly We shall deferre no man Justice or Right c. First Expost and Quer. If no man ought to be taken or imprisoned but by the Law of the Land viz. the Common-Law Statute-Law and Customs of England is it not cleared by our Expostulations before upon the 11. Chapter that Debtors are taken and imprisoned in the Kings-Bench contrarie to the Common-Law of England declared by Mag. Chart. contrarie to the chief Statute of England which is Mag. Char. and which the Lord Coke saith should live as was accorded by King and people for ever And contrarie to the Custom of England declared by Mag. Charta and also by the Lord Coke not to extend to the imprisonment of any Debtours but onely the Kings And are not Debtors other than the Kings so imprisoned as well elsewhere as in the Kings-Bench Secondly if no man shall be disseised viz. put out of his Freehold that is to say His Livelihood Liberties or Free-Customs such as belong to him by his Birth-right unless it be by the lawfull judgement and verdict of his equals or by the Law of the Land that is to say once for all by Due course and Proces of Law Are not Debtors disseised of their Livelihood Libertie and Freedom which belonged unto them as their Freehold by Birth right when they are imprisoned in London Westminster or elsewhere by Arrests and Actions for Debt whether due or not upon meer suggestions of Adversaries not so much to Judges as to Catch-pols without any judgement or verdict of their equals and without Due course or Proces of Law which should be Summons Attachment and Distringas before any Arrest as aforesaid Are they not taken in the Countrey from their Ploughs which are their Livelihood and their Countreys and their Freehold by Birth-right by vagant Bum-baylies and imprisoned there till they give bail to appear at Westminster and thence instead of being remanded home to their sweet Farm-houses large fields and industrious Agricultures are they not sent to stinking Goals close dungeons and idle Monk-cels whereby they are allowed little more ground to walk upon while they live than might serve them to lie under when they are dead Are not all the Corporations of England and their free-chosen Officers that should do them justice at home disseised of their Freeholds by Birth-right and Charters before and since Mag. Char. when they are prevented of the administration of justice in execution of their Offices to which they were sworn and heritable successively from their Ancestours by Custom long before Mag. Char. and since confirmed by the same and by Charters dated before and since by Certioraries Habeas Corpus c. before Judgement and pretence of Errors after and though never any proved or assigned yet the causes never remanded but detained at Westminster where the usual correction of pretended Errours is not by making any thing that is crooked straight but all that is straight crooked so that both Plantiffs and Defendants give their titles for lost in a mist commonly but he that hath the wrongfull possession and money holdeth it and he that hath the right and no money goes to his grave without it Are not all the People of England disseised of their Freehold Liberties Franchises and Free customs when they are deprived of that justice which they ought to have administred amongst them at home by virtue of the Kings Writs original for Enquiries and judicial for Determinations directed to Sheriffs of their own choise in their own Counties or Stewards of Hundreds and Court-Barons in their precincts where the Free-holders themselves are Judges themselves by ancient Common Laws and Customs of England before Mag. Char. and by it declared and confirmed unto them as aforesaid Can Writs of trespass executed for debt or Capiases grounded upon counterfeited Originals be construed by any Law to be due Proces of Law Thirdly Are men lawfully Outlawed upon Exigents for debt grounded upon a repealed Statute and are not all Debtors that are Outlawed so Outlawed Are men lawfully Outlawed that are Outlawed upon Exigents grounded upon Summonitus or Non est inventus counterfeitly returned by Attorneys who at the time of the return were no Sheriffs or competent officers and are not all or most Debtors and Trespassers that are Outlawed in London and Middlesex so Outlawed Are men lawfully Outlawed upon any Exigents that are Outlawed without the
to the Party Perjurious in the Judges who admit such a Return and proceed upon it and as Illegal in the Sheriff that makes such a Return and as different from due Proces of Law as the other And do not those false Returns filed upon their Records make all their proceedings thereupon false and faint Actions as aforesaid And if all before written be not sufficient to make it appear to the world that they are not onely Forgers Perjurers and Anathema's themselves but also the onely causers of all others to be or be accompted the like And that their Lives Lands and Goods are in the immediate dispose of the present State by the judgements and confessions of their own mouths Behold their Oath which they voluntarily take when they assume their places whereby they binde themselves further before God and man as followeth viz. Ye shall Swear The Oath of the Kings Judges that well and lawfully ye shall serve our Sovereign Lord the King and his people in the office of Iustice and that lawfully ye shall Counsel the King in his business and that ye shall not councel nor assent to any thing which may turn him to dammage or disherison by any manner way or colour And that Ye shall not know the dammage or disherison of him whereof Ye shall not do him to be warned by Your self or by other And that Ye shall do even Law and Execution of right to all his Subjects rich and poor without having regard to any person And that You take not by Your self or by other privily nor apertly gift nor reward of gold not silver nor of any other thing which may turn to Your profit unless it be meat or drink and of small valure of any man that shall have any Plea or Proces hanging before You as long as the Proces shall be so hanging nor after the same cause And that Ye take no Fee as long as Ye shall be Iustice nor Robes of any may great or small but of the King himself And that Ye give none advise nor Counsel to no man great nor small in no case where the King is party And in case that any of what Estatt or Condition they be come before You in Your Sessions with Force and Arms or other ways against the Peace or against the form of the Statute thereof made to disturb Execution of the Common Law or to manace the people that they may not pursue the Law that Ye do their Bodies to be Arrested and put in prison and in case they be such that Ye may not Arrest them that Ye certifie the King of their names and of their Misprision hastily so that he may thereof ordain a covenable remedie And that You by Your selfe nor by other privily nor apertly maintain any Plea or quarrel hanging in the Kings Court or else where in the Countrie And that Ye denie to no man common right by the Kings Letters nor none other mans nor for none other cause and in case any Letters come to You contrarie to the Law that You do nothing by such lett but certifie the King thereof and go forth to do the Law notwithstanding the same Letters And that Ye shall do and procure the profit of the King and of his Crown with all things where Ye may reasonably do the same And in case Ye be from henceforth found in default in any of the points aforesaid Ye shall be at the Kings Will of Body Lands Goods thereof to be done as shall please him As God You help and all Saints Anno 18. Edward 3. Stat. 3. Expost and Quer. If Atheists can perswade Christians that this Oath was no binding for them that had taken it even the Wise Learned Reverend Judges Sages Scientissimous Interpreters of the Laws of England sufficient to keep them within the compass of their Oath Law and Knowledges Shall not Christians perswade themselves that it is a sufficient Confession Declaration and judgement of their own mouths that made it that their forfeitures viz. their Lives Lands and Goods in case of their breach of any point of this Oath are now immediately in the power of the State to dispose of to the publique use at their pleasures without any further Proces or proceedings in Law but onely to give Order and Warrant to Arrest the persons of such Offendors to stand to their censures and to Sequester their Estates and to divide them to the said use accordingly Did Lords ever use any more Law than their own Wills when they Sequestred and punished their villains Had Lords any more Law Right or Reason to Sequester and punish their villains at their own Wills but for that their villains did take their Lands upon conditions to do those services which they and their Lords agreed upon and gave their Lords their Oaths as their greatest bonds to perform those conditions or in case of breach to suffer their Lords to repossess their Lands with the forfeitures of their Goods which they gained and their Lives which they sustained upon the same Was the Oath of a Villain though made by Parliament to the end that Lords should be well served by their Slaves in their private and meanest Offices of as considerable consequence to be observed or in default thereof their forfeitures to be executed as the Oath of Judges made and Confirmed by several Parliaments to the end that the common-wealth should be well served by their Justices in their publike and most honourable if rightly served Offices of Judicature and administration of Justice Are not such Villains as dare incroach not onely upon their Lords Lands and Estates but also upon their Lives and Liberties dangerous transcendent Hyper-Prelatical Usurpers Are not such Usurpers intollerable mischiefs in a Common-wealth Who being sworn servants to the Common-wealth as by this Oath it appeareth the Kings Justices were make all the Common-wealth their servants to attend their Trains at Westminster at their pleasures And all Prisoners for Debt not onely their own Villains but also Villains to their Villainous Goalors and Slaves to their Slaves Are not the meanest of the Free-People of England interessed in the due execution of Justice to which these Judges were sworn as well to them as to Kings and consequently ought they not to be such Lords as dare and will take the forfeitures of such Villains as do them daily Injustice Is not this Oath a sufficient Evidence in it self that the takers of it have do dayly break it cause all others that have or do break it to do so likewise Since Kings and People have wholly referred themselves and their Estates not onely to the Justice of their Judges but also to their fatherly advertisements and admonitions whereby they ought not to suffer any that depend upon them to err through ignorance and they contrariwise admonish none not to offend but suffer and cause more to offend than willingly and wittingly would and so do for want of such admonitions much
Misdemeanours are comprehended all breaches of Magna Char and all Offences against all Statutes in force and concurrent with Mag. Char. and the Petition of Right which all Justices of Peace and Magistrates in their several jurisdictions are Authorized and sworn to hear and determine without fear favour or respect of persons How then to be excused or delayed by any Writ or command of any Superiour And how are the Judges of the Kings-Bench whereof the chief was the Kings Deputy by Writ now Superiour or equal to any other Judges or Justices If that maxim be true moritur Actio cum Personâ But the Office of a Deputy dyeth with its Master as a Letter or Warrant of Attorney with its maker the King-Bench may be spared as well as his person And all causes in this Common-wealth be called Common-Pleas and tryed by the Common Law of the land and Verdicts of common people and Free-holders of every County and Corporation before the Free Judges Magistrates freely chosen by the said Common and Free-People to justifie them at home and not before mercinary makers expounders and sellers of all Lawes and Liberties as they please at Westminster And doth not the said Stat. of 28. Ed. 3. warrant Justices of Peace or any two of them whereof one to be of the Quorum to call and keep Sessions as often as they see need to do justice to their Countrey See the Stat. at large and Cromp. I. P. fol. 112. and F. H. I. P. fol. 10. Whereunto adde That as Magna Charta compriseth all the Law of this land agreed upon by Kings and People and would be read and published in English as aforesaid for the better understanding thereof by all English People to the end that the ignorance of their Law should be not excuse for any of them to transgress it So how needless it is if not pestiferous to have this Common-Law reduced to a private mercinarie Trade or particular science exceeding the seven Liberal by such professours thereof as have and do endeavour to disguise mask and hide it from all but themselves in base French and Latine intricacies and obscurities to the end to make all persons offendors thereof and none excusable but by their resolutions of their own Riddles which are alwaies answerable to their Fees be the cause right or wrong whereby the cure of Law becometh an incurable disease until that superfluous mercinary profession be abolished or regulated so as the best and soundest Lawyers may be used in Parliaments as in former times to sit upon Wol-sacks to answer to what that high Court shall be pleased to aske them and not as members of that Court to make Lawes and Oaths for others which they never observe themselves but for their own gain and the peoples damage To which end they alwaies preamble their inventions against Mag. Char. with titles of Acts for the good of the people when in their subsequents they hurt all but themselves As passing by all former their last Acts for the inlarging of poor prisoners for debt sufficiently witness whereby neither creditor nor debtour are any way relieved but both further entangled and Lawyers Fees more procreated Videat experientia Conclusivè That there can be no firm peace or end of Wars till there be an end of mercinarie professours of Law less needful or useful for Parliaments or People than Bishops or such as might be used there or elswhere for saying or reading prayers while these neither pray preach nor study but their own lucrative magnificence every where upon the peoples purses Adde lastly Such Justices of Peace as will not execute Mag. Char. with its confirmations and the Petition of Right and desert and wave the execution and practice of contradictory Statutes for zeal to their Creatours or fear to be unmade by those that made them ought to be deserted and waved by all good Patriots of their countrey as excommunicated persons and breakers of M. Chà And such onely as will execute Mag. Ch. c. ought to be confirmed by the choise of the People in their Counties respectively whereby they may act as the ancient Conservatours of the Peace did by the Common Law of England before Mag. Char. and since which was to conserve the Peace of England by all necessary means word or sword unlimited by Prerogative Statutes devised by mercinary Lawyers to steal from the People their birth-right Authority in the name of the King unto themselves to sell delay and deny it at their pleasures which to do is apparently contrary not onely to Mag. Char. and the Common Laws of England and also to common reason but chiefly to the divine Providence of God for neither Law Reason nor Divine justice would ordain a man to conserve the publike peace of Gods people which peace as they is his own without giving that man an unlimitable power by which he may execute his Office and without which he cannot FINIS
than he gave contrary to the opinion of all Lawyers that say All Acts of Parliament are to be expounded for the benefit of the Subject And what and how did he gain but contrary to his Honour much more to his Grace when two more of his subjects were hedged in by this Act as Pledges to pay for his undone Debtor and to undoe themselves and their families by the bargain And their estates being too little to pay their own debts their Creditours must see the King first served our of the same to their no small prejudice if not undoing whereby many are injured through one mans occasion If therefore this Act ought to be construed for the honour of the King and benefit of the subject as I believe it ought and the L. C. saith others have thought so it followeth That the Statute of the 33. Hen. 8.9 was made as many more were before and since against Mag. Chart. and not onely against Kings honour and grace but also their Oathes to the undoing of multitudes of their subjects which was ungracious for their Counsel learned in the Laws to give advice or assent to the making such Laws or when made to allow them much more to maintain them being that all Judges are to receive Mag. Chart. for a Plea against all Statutes made against it And all Judgements given against Mag. Chart. are and ought to be void as appeareth in the L. C. preamble And all such Statutes as were made before the 42. of Ed. 3. against Mag. Chart. were then replealed and as I conceive all made so since are repealed by the Petition of Right 3. Car. that restored Mag. Char. to its primitive vigor and consequently enervated all its opponents The City of London shall have the old Liberties Cap. 9. London c. and customs which it hath been used to have Moreover We will and grant that all other Cities Burroughs Towns and the Barr ons of the five Ports and all other Ports shall have their Liberties and Free-customs This Chapter saith the Lord Coke is excellently interpreted by an ancient Author quoting the Mirrour in the Margent who saith L. C. upon M. C. fol. 20. that by this Chapter the Citizens of London ought to have their Franchizes whereof they are inheritable by loyal Title of the gift and confirmation of the Kings which they have not forfetted by any abuse and that they shall have their Franchizes and Customes which are sufferable by right and not repugnant to law And the same interpretation serveth for the Cinque-ports and other places Expost and Quer. Doth not this Charter and chapter sufficiently declare and Lawyers though unwillingly yet plainly confess that London and the rest had old Liberties and customes and that they are inheritable thereof and ought still to have the same so long and so far as not repugnant to Law which I conceive to be this Law and not any that have been made since against it And do not the several Charters of London and other Cities and Towns obtained since this Law declare further what those Liberties and Customs were And if the Kings learned Councel have consented that he should grant or Professors of the Law advised Londoners or any other Citizens to ask things repugnant to this Law and prevailed with both parties Have they not misled both parties And though they have so done often yet in this case doth not the Statute of the 19th of Henry 7. chap. 7. help the offendors with less danger than the forfeiture of their Customs and Liberties if they offend especially but in those points which their lawyers so much misadvised them to ask and the Kings him to grant Common-Pleas shall not follow Our Court Ca. 11. Common Pleas. but shall be holden in some place certain Before this Statute saith the Lord Coke Common-Pleas might have been holden in the Kings-Bench L. C. upon M.C. fol. 22 23. and all Writs returnable unto the same Bench And because the Court was holden coram Rege and followed the Kings Court and removable at the Kings will the Returns were Ubicumque suerimus in Angliâ whereupon many discontinuances ensued and great trouble of Jurors charges of Parties and delay of Justice for this cause this Statute was made c. And Pleas of the Crown were divided into high Treason Misprision of Treason Petty Treason Fellony c. and limited to this Court because contrà coronam dignitatem c. So that of these the Lord Coke saith the Common-Pleas cannot hold Plea But to shew that Common-Pleas may be holden in the Kings-Bench he saith That the King is out of this Statute and may sue in that Court Secondly if a man be in Custodia any other may lay upon him any Action of debt covenant or the like personal Action because that he that is in Custodia ought to have the priviledge of that Court And this Act taketh not away the Priviledge of any Court. Thirdly any Action that is Quare vi Armis where the King is to have a Fine may be sued in this Court Fourthly Replevins may be removed thither Fifthly saith the Lord Coke Albeit originally the Kings-Bench be restrained by this Act to hold Plea of any Real action yet by a mean they may as when removed by writ of Error from Common-Pleas thither for necessitie lest any party that hath right should be without remedie or that there should be a failer of Justice and therefore Statutes are alwaies to be expounded so that there should be no failer of Justice Expost and Quer. Do not the L. C. words viz. Before this Statute c. imply that after the Statute Common-Pleas ought not to be holden in the Kins-Bench nor all Writs be returnable into the same Beach Doth the Register or Natura brevium therefore shew any Writ for debt returnable to the Kings-Bench Doth not Fitz. H. natura brevium fol. 119. h. k. declare that there is no Writ in Law for debt but a Justicies which is a judicial Commission to the Sheriff to determine the matter Nè amplius indè clamorem audiamuus So that the Kings-Bench ought not to be troubled with the matter at all or if an Original returnable to the Common-Pleas Doth not that Original declare it self to be a Summons And doth not Mr Kitchen in his Ret. brev fol. 4. Tit. com bank declare that Summons Atachment and Distringas succestively distant fifteen days one after another is the onely Proces at Common Law The Kings-Beach and Common-Pleas ought to practise by the Common Law declared by Mag. Chart. and accord of the King and People declared and injoyned to be observed inviolable and immutable for ever Did ever any Judge of the Kings-Bench or Common-Pleas advise or consent to the making any Statute or Law to the contrarie being sworn to execute and maintain Mag. Chart. as anon shall appear all were or ought to be and was not perjured Did or doth any
chief Court could command Bishops to give their clergy to such as ought to have it another cause was That the life of a man ought to be tryed before Judges of learning and experience of the Laws of the Realm for Ignorantia Judicis est saepenumerò calamitas innocentis These are the reasons that the Lord Coke alledgeth why some Pleas of the Crown were taken from Sheriffs Castellans Escheators Coronors and Bailiffs under which names saith he are comprehended all inferiour Judges Justices and Courts of Justice albeit saith he it be provided by the 9th chap. of Mag. Charta That the Barons of the five Ports should have all their Liberties and Customs These general words saith he again must be understood of such Libertiâ—s and Customs as are not afterwards in the same Charter by express words taken away and assumed to the Crown Might not the Kings inferior Courts command ordinary Ministers to give men their Clergie Expost and Quer. And might not that serve before Magna Charta as it is usual since For seldom or never in our memories did Bishops themselves attend any court for that service and now should they be necessary onely for that imployment So the Kings Court would be onely to command them but if Bishops may be spared why may not that Court for that cause And if by this Charter the King resumed some Pleas of the crown from those that formerly had them dorâ—â— et follow that he resumed all Pleâ—â— from those that formerly had them And if under the name of Bailiffs be comprehended all Judges and Justices are not the Judges of the Common-Pleas and Barons of the Exchecquer so comprehended And are none of them of such learning and experience in the Laws of the Realm to try the life of a man as Judges of the Kings-Bench Or else why are they sent for Goal-deliveries aswel as Judges of the Kings-Bench are Was it not provided by the 9. chapter of Mag. Charta That London and other Cities Burroughs and Towns as well as the Barons of the five Ports and other Ports should have their Liberties and Free-Customs Are all these now resumed by this 17. chap Who can understand so Or what meaneth the L. C. by his riddles Shall Magna Charta contradict it self though the Lord C. would and doth here and elsewhere Are not Commissions of Oyer and Terminer usual for Tryal of mens lives where Judges of the Kings-Bench cannot reach or dare not go Doth not London and other Corporations execute their Charters by their Recorders when the Kings-Bench gives them leave and then do not the Judges of the Kings-Bench grant that such Judges may be as learned and experienced in the Laws as themselves for the Trying of mens lives Are not mens lives Tryable for matter of Fact and not of Law except Treasons that reach to thoughts Are not Jurors the Judges of matters of Fact What great learning or experience in Law is requisite for a Judge to pronounce the sentence of death where the verdict hath determined the life But how many true men have been hanged and thieves saved by Judges interposing and obtruding their pestifferous pretended learning and experience in the Laws between the weak consciences of ignorant Jurors and the truth which kind of Jurors they make Sheriffs return for such purposes when they may have such returned as know the Facts and have sounder learning and experience in express Law than themselves All Wears from henceforth be utterly put down by Thames C. 23. Wearâ— c. and Medway and throughout all England but onely by the Sea-coasts It was specially given in charge by the Justices in Eyre saith the Lord C. that all Juries should inquire of all such as Fished with wears and Dams L. C. upon M. C. fol. 38. and it appeareth saith he by Glandvil lib. 9. c. 11. That when any thing is unjustly occupied within the Kings demesne or obstructed in publick waies or Rivers turned off their right channels or Citie-streets built upon and in general as often as any nusance to the Kings holding or his High-way or to any Citie is committed That is a purpresture viz. an Inclosure whereby one in chroacheth or maketh that several to himself which ought to be common to all or many and every publick River or stream the Kings High way If Wears be nusances as I am sure they are throughout England Expost and Quer. and Wales and if Commissioners for Sewers and Justices of Peace for want of them be sufficiently authorized to reform such wrongs and do not because chief doers thereof or sharers in the unlawful gain made thereof themselves why not Justices in Eyer imployed to execute their charge for the general amendment thereof for the publick good One Measure of Wine shall be throughout our Realm C. 29. Measures c. and one measure of Corn viz. according to the Quarter of London and Haberjects that is to say two yards within the list and as it is of Weights so shall it be of Measures This Act concerning Measures L. Cokâ— upon M. C. fol. 49. and Weights that there should be one Measure and one Weight through England is grounded upon the Law of God Deut. 25. v. 13 14. And this by Authority of Parliaments hath been often enacted but never effected If Weights and Measures throughout England ought to be one Expost and Quer. and that not onely by the Law of God as the Lord C. instanceth but also by this Charter of Agreement between the King and the People Why did not the Lord C. being chief Justice of England sworn to do Law and Justice too and between King and People as partly before did and hereafter further shall appear he was or ought to have been see this point of Justice so highly required by the Law of God and so mutually agreed upon by the Kings of this Land and their Subjects duly executed Nothing shall henceforth be given for a Writ of Inquisition Ca. 16. Inquisition nor taken of him that prayeth the Inquisition of Life or Member but it shall be granted freely A Writ of Inquisition L. C. upon M. C. fol. 42. viz. De odio atia anciently called De bono malo c. which the Common-Law gave a man that was imprisoned though it were for the most odious cause for the death of a man for which without the Kings Writ he could not be bailed Yet the Law favouring the Libertie and Freedom of a man from Imprisonment c. until the Justices in Eyre should come at what time he was to be tryed he might sue out this VVrit directed to the Sheriff c. If a Writ De odio atia was given by the Common-Law Expost and Quer. to a man Imprisoned for the most odious cause even for the death of a man and if the Common-Law favoured the Liberty of a man Imprisoned so that he should be Bailed for such a Fact until
judgement of the Coroners of the Countie wherein they are Outlawed Are the Coroners of any Countie now adays present at every or any Countie when and where men are Outlawed Are not their names nevertheless returned as Judges of every Outlary unknown to them for the most part or all Are not those Returns false and forged and are such proceedings the due course and Proces of Law How many thousands of the Free-men of England are Outlawed yearly by such means and how many of them undone before they can reverse them How many are imprisoned thereupon and have all their estates seised for the King by Sheriffs chosen without the consent of the People and often such as purchase their Offices to gain by such means How many Outlawries yearly are so clandestinely carried that the parties so Outlawed can hear nothing thereof before they be imprisoned and their estates destroyed as aforesaid How many are further damnified by such Outlawries procured of purpose to debar them of their just suits in all Courts until they reverse them How chargeable are reversals thereof What lawfulness is it or what honour for the Courts at Westminster to make unlawfull prosit of such unlawfull practises Cannot the Judges at Westminster be contented to have counterfeit Returns of their Originals in London and Middlesex but they must also have the like Returns of their Exigents throughout the Kingdom Are not such Returns false and perjurious in the Sheriffs that make them Is it not sufficient for Judges to perjure themselves but that they must animate others to do so too by not punishing them when they know that practise Are not the Sheriffs of London and Middlesex and all the Coroners of the Kingdom made liable by this practise to Actions of the Case and to pay costs and dammages to the parties grieved Are such Judges Lawyers c. for the Peace or Profit of the Common-wealth that beget foment or suffer the causes of such Actions causelesly but for their own ends and gains Are such Courts to be called or counted Courts of Justice that maintain any Actions or Arrests upon unjust grounds or colour of any mis-begotten Laws contrarie to Mag. Charta Are not Assaults Batteries Rescues Riots and Homicides frequent upon such Arrests Are not many mens lives lost and more hazzarded and their estates ruined thereby And if a Catch-poll be killed for making or attempting such unlawfull Arrest do not the Judges use to adjudge it wilful Murther though the wronged party doth but endeavour his justifiable defence And have they not begotten a Statute for officers to plead the General issue by colour of which they justifie themselves and their creatures and condemn the guiltless Are not the causers of Murther as worthy to be hanged as the doers Are not they that maintain such Arrests to the same ends as their Predecessors Imps of the same generation Why therefore their advice desired or received in such matters Are not the Releases of Errors which Prisoners are forced to seal before they can be inlarged rather proofs of their guiltiness than acquittances of such practitioners Are not their Errors manifest to be wilfull and gainfull onely to themselves and hurtfull to the Common-wealth are such Errors or Proceedings to be called Due courses or Proces of Law Then to speak once for all is not the Due course and Proces of Law obstructed and perverted and a wrong course practised full of Errors Lies Forgeries Perjuries c. as alreadie appeareth and better shall hereafter and cannot Law be executed without such practises Doth not Mag. Char. and all its confirmations shew how it may Are not they sufficient lights and guids for the Due course Proces and Proceedings which ought to be observed in the right execution of Law And doth not the Lord Coke confess them to be such and that they never misguided any man that certainly knew them and truly followed them Fol. 526. Fourthly If no man shall be exiled c. Are not Debtors exiled from their Native Soils in Cumberland or Cornwal and from all their wordly comforts of Wifes Children Families Friends and Estates both Real and Personal when called and forced by Habeas corpus c. to attend Duke Humsrey in Pauls or Judge Owen in Westminster as good dead as any Judges living to hear or dispatch Suits by the Law of the Land in any way of Justice while the Suitors money lasts or to relieve them with any Alms when their Purses are spent And if at last sent to the Fleet or Marshalsey where they be pent up as aforesaid are they not worse Exiled than into Turkie where they may have more Liberty of Land and Sea and live in less Slavery than under Goalers in England and have more hopes to return home again like Sir Thomas Shirley and many others than from these Hells whence few find Redemption Had Henry of Bullingbrook been Imprisoned for Debt here as such now are when he was banished to France could he have hoped to be King of England except he had made all his Judges and Goalers the best sharers of all his Usurpations as all the cheating Prisoners in these places do theirs as they and their Creditors can best tell by dear and daily experience Fifthly If no man shall be destroyed c. unless by Verdict c. Are not all Prisoners for Debt who are first forced themselves to destroy their small Estates to buy bread to eat in Idleness and to pay Fees to Goalers c. and at last to Famish in the Fleet or Marshalsey c. destroyed both in Lives and Estates and their Families to boot without any Verdict given or intended for their Lives Nay are not all the Free-men of England that are or may be subject to Debts consequently subject to the like destruction And worthy so long as they suffer the Laws of England contained in the glorious Fabrick of the Great Charter of the Liberties of England built by their Ancestors for a perpetual Monument of their care of their Posterity and their Liberties for ever to be thus destroyed by an Hypocritical Generation of Pharisaical Pretenders to the onely knowledge of these Laws which by that pretence they thus pervert to destroy all honest men whom it should save and to save all whom it should destroy or punish and that for unlawful respects and considerations tending onely to their own profits and ends Sixthly If no man shall be condemned c. but by the judgement of his equals according to the Laws of the Land Are not all Debtors that are Famished as aforesaid Condemned for their Lives in effect though but for their Debts in appearance without any Verdict of their equals so intended contrary to the Law of the Land Seventhly do not all the Judges at Westminster sell Justice when they sell Prisoners for Debt their Writs of Habeas Corpus c. for money when the King would have all his Writs of Grace to be given to his Subjects
Eyre still And why not Writs Gratis sent to the Sheriff of every Countie to enquire of offences and offendors against the great Charter And doth not this Statute prove that Sheriffs ought to have such Writs and to make such enquiries And that the King referred himself as well as others to the judgements as well of Justices in Eyre as of the Justices of the Bench and that he would have his Writs granted as well against him as others and that Gratis doth it not futther prove that Kings accounted the Justices in Eyre his Justices and their Court his Court as well as the Kings-Bench how therefore doth the Lord Coke hereafter call them new Justices and their Court new Court But more of that in its place Now having done with so much of Mag. Charta as I promised and with the 5 Chapter of the Statute of Marlebridge and the 8 of the Statute of Glocester Here ensueth the Confirmation of the great Charter made at London 10 Octob. Anno 25. Ed. 1. three years before that which is Printed before it because that containeth all the Charter in 38. chapters at large and this but 7. In the First of which it confirmeth both Charters and every Article thereof both made 9º H. 3. in general words as followeth viz. Edward by the grace of God Cap. 1. Charters King of England Lord of Ireland and Duke of Guyen To all those that these present Letters shall hear or see Greeting Know ye that We to the Honour of God and of Holy Church and to the profit of Our Realm have granted for Vs and Our Heirs That the Charter of Liberties and the Charter of Forrests which were made by the Commonalty of the Realm in the time of King Henry Our Father shall be kept in every point without breach And We will that the same Charter shall be sent under Our Seal aswel to Our Justices of the Forrest as to others And to all Sheriffs of Shiers and to all Our other Officers and to all Our Cities throughout the Realm together with Our Whits in the which shall be contained that they cause the foresaid Charters to be published And to Declare to the People that We have confirmed them in all points And that Our Iustices Sheriffs Maiors and other Ministers which under Vs have the Laws of Our Land to guid shall allow the same Charters pleaded before them in Iudgement in all their points That is to wit The Great Charter as the Common Law And the Charter of the Forrest for the Wealth of Our Realm The Title of this Statute saith the Lord Coke is Confirmationes Chartarum de Libertatibus Angliae Forrestae L. C. upon Cons C. f. 526. viz. The Confirmations of the Charters of the Liberties of England and of the Forrest And true it is saith he that hereby the said Charters are expresly confirmed but they are also excellently interpreted which is a Confirmation in Law for here is nothing Enacted but is included within Magna Charta And by the Commonalty saith he is to be understood by the consent of all the Realm by Authority of Parliament and many times by the Commonalty of England is signified an Act of Parliament c. before Printing and before the Reign of King Hen. the 7th Statutes were Ingrossed in Parchment and by the Kings Writ Proclaimed by the Sheriff of every Countie this was the ancient Law of England that the Kings Commandments issued and were published in form of Writs as then it was An excellent course and worthie to be restored c. This Clause saith he is worthie to be written in letters of gold viz. That our Justices Sheriffs Majors and other Ministers which under us have the Laws of the Land to guid them shall allow the said Charters in all points which shall come before them in Judgement And here it is to be observed That the Laws are the Judges Guides or Leaders according to that old Rule Lex est Exercitus Judicum viz. The Law is the Judges Armie Tutissimus Doctor viz. The safest Teacher or Lex est optimus Iudicis Synagogus viz. Their best Synagoug And Lex est tutissimus cassis viz. Their safest Fortress There is an old legal word saith he called Guidagium viz. Guidage which signifieth an Office of guiding Travelors through dangerous and unknown ways Here it appeareth that the Laws of the Realm hath this Office to guid the Iudges in all causes that come before them in the ways of right Justice who never yet misguided any man that certainlie knew them and truly followed them The sence of the words That the great Charter is to be holden for the Common Law is that it is a Common Law to all in amendment of the Realm that is of great mischiefs and inconveniencies which oppressed the whole Realm before the making thereof Expost and Quer. Doth nor the Lord Coke by all this his expression commend this Statute very highly Why did he not in his duty cause it to be observed in his time And had not Iustices of the Forrest and other Iustices Sheriffs Majors and other Ministers of his time had they received the Great Charter with the Kings Writs power thereby as well as he to cause the said Charter to be published to the People and that the King had confirmed it in all points Why did he by neglecting his duty to send the said Charter and Writs unto them accordingly make them fail of their duties Doth not the Lord Coke confess by this clause Worthie as he saith to be written in letters of gold That Sheriffs Majors and other Ministers as well as Justices and other Justices as well as those at Westminster have or ought to have the Law of England to be their guid and ought to allow Magna Charta in all points which in any Plea shall be before them Why then do the Iustices at Westminster by their Habeas corpus and other Writs as aforesaid disturb and prevent all Sheriffs Majors c. to exercise their Offices before Judgment or after without proof of Injustice or manifest Errors committed by them in their Iudgements Why do not the Iustices at Wistminster when they have Persons and Causes brought before them by virtue of their Writs allow Mag. Car. to be Pleaded before themselves since they will suffer no others to hear it How can it be true when they do not that the Law is their guid Do not they assume the sole Guiding Learning Interpreting Exercising and Over ruling of the Law to themselves when they suffer no other Iustices or Ministers of the King but themselves to have any Judgement therein as aforesaid Why do they bely the Law so much as to call it their Guid their Teacher their Army their Synagogue their Fortress when it is manifest That their Attorneys their Sollicitors their Catch-polls and their Goalers are their Guids Teachers Supernumerous Armies and Invincible Fortresses as they trust but may be deceived
all whose ways are to Injustice as aforesaid How can that Law be called Common to all which They and these their Creatures Monopolize Ingross and Appropriate all to themselves as aforesaid And We will C. 2. Judgements That if any Indgement be given from henceforth contrary to the points of the Charters aforesaid by the Iustices or by any other Our Ministers that hold Plea before them against the points of the Charters it shall be undone and holden for nought Whatsoever Judgement is given against this Statute of Magna Charta L. Coke upon Con. C. f. 527. c. is made void by this Act and may be reversed by a Writ of Error because the Judgement is given against the Law for this Act saith Soir de fair pur nienttenus viz. as the Stat. Englisheth it self It shall be undone and holden for nought Expost and Quer. If so Why should not all Iudgements appearing as aforesaid to be contrary to Mag. Charta which are given for Arrests and Imprisonment of mens Bodies for Debt be undone and held for nought Why did Mr. Garland lately trouble the most High Court of Parliament whereof by so doing he shewed himself an unworthy Member with a ridiculous useless Act of his drawing for the Enlarging poor Prisoners for Debt Why did not he if he did ever read this place of the Lord 〈◊〉 mind the Parliament to command the Judges who seem if they have read it to have forgot it to reverse their Erroneous judgements against Debtors so far as they extend to their Imprisonment and to send their Liberate to all their Goalers to set open all their Goal dores and let forth so many of the Prisoners for Debt as they have left alive The poor because they have no Estate whereof to pay the rich because they have Estates sufficient for all or part against which Estates so much of their judgements may stand as concerneth that and not their Bodies and Executions may be taken thereupon by Elegit or Fieri facias according to the Statute of Westminster the 2. cap. 18th agreeable to Magna Charta and the Parliament not to be troubled except to Impower the Iudges by an Order to rectifie their judgements according to that Law which is in force and so forgo their Errors and Repealed Statute of the 25th of Ed. 3d c. 17th which ought to be no Guid Leader or Teacher to learned and grave Judges that can never be misguided by the right law if as the Lord C. saith they certainly know it and be pleased truly to follow it And by this course as well the Creditors of the rich Debtors as the poor Prisoners for Debt that have been wronged by the Judges Erronious judgements and proceedings against Mag. Charta may be partly redressed and so rest satisfied until the Parliament be pleased to right them further as shall appear hereafter they may So likewise may that Prisoner which is Imprisoned again after his inlargement by Garlands Act be Enlarged again by the same Judge that Committed him without troubling the Parliament or People with any such Appeal as is lately divulged or suffering the Apprentices Out-Cry to run so far That now it will never be stopped till the Thieves be taken And that all Arch Bishops Cap. 4. Excom c. and Bishops shall pronounce the Sentence of Excommunication against all those that by word deed or counsel do contrary to the said Charters or that in any point break or undo them And that the said Curse be twice a year Denounced and Published by the Prelates aforesaid And if the same Prelates or any of them be remiss in the Denunciation of the said Sentences the Arch-Bishops of Canterbury and York for the time being shall Compel and Distrain them to the Execution of their Duties in Form afore-said This Excommunication the Prelates could not pronounce without Warrant by Authoritie of Parliament L. C. upon Confir Cart. f. 527. because it concerned Temporal causes Expost and Quer. Was not the Authority of this Parliament sufficient Warrant for Prelates to pronounce Excommunication according to the Tenor and limitation of this Act Doth not the Lord Coke say before That this Act is not onely an Express Confirmation of Magna Charta but also a Confirmation of it in Law Doth he not say before that That Magna Charta should live for ever and in all Successions of Ages for evermore Is not the substance of the Excommunication given by this Act to the Prelates to pronounce Had the Prelates any more to do therein but to pronounce an Excommunication What meaneth Ipso Facto in the Act but to let all future Ages understand That the breach of Mag. Cha. which is a Declaration of the Fundamental Laws of England is such an Offence as deserveth an everlasting Curse inflicted by the Law it self upon the Breakers for ever Which Curse receiveth no more strength from the Pronouncer than a Sentence of Death from a Iudge who doth but tell a Fellon whom the Law condemneth what shall be the manner of his Death If any Excommunication was ever pronounced by virtue of this Act as there were two in two several Kings Reigns were not those Excommunications in force and so to continue as long as Magna Charta it self the Prelates and their Successours neglect of their Duties by discontinuing such Denunciations twice yearly afterwards notwithstanding If so Are not those Excommunications still in force except Absolutions be produced granted and given by equal Authority to that whereby those Excommunications were Denounced If so Are not Excommunications until Absolutions of the same accompt and validity in Law as Out-lawries until they be reversed If so Are not all the Lands Goods and Chattels of all Excommunicats now the States as formerly they were the Kings and so Seizable Sequestrable and Convertible to that use until Absolution And ought not satisfaction precede Absolution Ought not that satisfaction extend to every particular man that hath been wrong'd in this case which as the L. C. saith is a Temporal case and so called in respect of the interest of all men called by the Clergy Temporal for distinction from themselves that would be called Spiritual And so as I believe not to be commuted by a Prelatical Sentence to a trivial Pennance nor pardoned by Parliament without excepting every particular Interest And what Parliament can Pardon or Absolve Offendours against Magna Charta but by the Rules of Magna Charta without offending Magna Charta themselves and incurring the same Excommunication as they have incurred that would be Absolved If Excommunications be no Terrors to Atheistical Judges Justices c. who neither Believe nor fear Heaven Hell God Justice nor Laws though they cannot in nature and reason but know that such there are and are to be beleived feared and obeyed shall not Excommunications be sufficient Warrants for Christians English Christians in England being warranted not onely as the L. C. saith By
learn the Laws at their perils therefore If Ignorance were a plea shall knowledge be excused Professors of knowledg nay such as ingross that Profession from all others nay more such as are the onely causers and punishers of all other mens Ignorance It appeareth that this Sentence was Denounced in the time of King Hen. 3d. Now followeth another Denounced upon the said Confirmation made in the 25th year of King 8d 1o. viz. In the Name of the Father Excom 2. the Son and the Holy Ghost Amen Whereas our Sovereign Lord the King to the Honour of God and Holy Church and for the common profit of the Realm hath granted for him and his Heirs for ever these Articles above written Robert Arch-Bishop of Cauterbury 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 injoyn all persons of what Estates soever they be that they and every of them as much as in them is shall uphold and maintain these Articles granted by our Sovereign 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 any wise assent to resist or break those Ordinances or go about it by word or deed openly or privily by any manner of pretence or colour We the foresaid Arch-Bishop by our Authority in this Writing expressed do Excommunicate and accurse and from the Lord Jesu Christ and from all the company of Heaven and from all all the Sacraments of Holy Church do sequester and exclude Doth not the word Hereafter Expost Q. 1 extend to all successions and implie a Duration as long as there be a Mag. Charta and a breaker of it Do not Parliamentarie Oaths as well as their Laws include absents and futures as well as present If neither Oaths nor Excommunications be obligatorie to Atheists shall not their hands and seals bind them and their Heirs and Executors after them as common Bonds signed and sealed between private parties commonly do And more specially such as take upon them the sole Execution and Administration of the Laws Liberties and Freehold of England Shall not Charters of Parliament made signed sealed and confirmed by Authoritie of Parliaments bind all Subjects their Heirs Executors and Administrators as well and as far as private Charters of Feofments shall bind their Contractors and their Heirs c. Nay as far as Acts of Parliament can bind till repealed Is not every Court called Curia of the Care it ought to have to execute that charge it undertaketh and not to exact and raise Fees c. for discharging themselves of all their said Obligations to do even Justice to all men and to force men to pay those exactions even for doing injustice If all before written be not sufficient to discover that to be true and that therefore the Lives Lands Goods possessed by Judges Lawyers all or most of them are in the States power to seize into their hands to the use of the Common-wealth as aforesaid let us look a little further and we shall find more that may And first the Statute called Articuli super Chartas viz. Stat. of Artic. on the great Chart. A. 28. Ed. 1. Articles upon the great Charters made 28. of Ed. 1. viz. the same year as the Confirmation at large which consisteth of 38. chapters of Magna Charta was made proveth further as followeth For as much as the Articles of the great Chartâ—r of the Liberties of England Preamble and of the Charter of the Forrest the which King Henry Father to our Sovereing Lord the King granted to his People for the Weal of his Realm have not been heretofore observed ne kept and all because there was no punishment executed upon them which offended against the points of the Charters before mentioned Our Sovereign Lord the King hath again granted revived confirmed them at the requests of his Prelates Earls Barons assembled in His Parliament holden at Westminster in the â—8 year of his reign And hath ordained enacted and established certain Articles against all them that offend contrary to the points of the said Charters or any part of them or that in any wist transgress them in the form that ensueth viz. First of all That from henceforth the great Charter of the Liberties of England granted to all the Commonaltie of the Realm and the Charter of Forrest in like manner granted shall be observed kept maintained in every point in as ample wise as the King hath granted renued and confirmed them by this Chart. And that the Charter be delivered to every Sheriff of England under the Kings Seal to be read four times in the year before the people in the full County that is to wit the next County day after the Feast of S. Michael and the next County day after the Feast of the Circumcision and after Easter and after the Feast of S. John Baptist And for these two Charters to be firmly observed in every point and Article where before no remedy was at the Common Law there shall be chosen in every Shire Court by the Commonaltie of the same shire three substantial men Knights Justices of Oyer Term. or other lawfull wise and well disposed Persons to be Iustices which shall be assigned by the Kings Letters Patents under the great Seal to hear and determine without any other Writ but onely their Commission such plaints as shall be made upon all those that commit or offend against any point contained in the aforesaid Charters in the Shires where they be assigned as well in Franchises as without and as well for the Kings servants out of their places as for other And to hear the plaints from day to day without any delay and to determine them without allowing the delays which be at the Common Law And the same Knights shall have power to punish all such as shal be attainted of any Trespass done contrary to any point of the two said Charters where no remedy was before at the Common Law as before is said by Imprisonment or by Fine or by Amerciament according to the Trespass Nevertheless the King nor none of his Councel that made this Ordinance intend that by virtue hereof any of the foresaid Knights shall hold any manner of Plea by power for to admit any suit in such cases wherein there hath been remedy provided in times passed after the course of the Common Law by writ Nor also that the Common Law should be prejudiced nor the Ch. aforesaid in any point And the K. Willeth that if all three be not present or cannot at all times attend to do their Office in form aforesaid the King commandeth that two of them shall do it And it is Ordained that the Kings Sheriffs and Bailiffs shall be attendant to do the commandments of
the foresaid Iustices as far forth as appertaineth unto their Offices And besides these things granted upon the Articles of the Charters aforesaid The King of his special Grace for redress of the grievances that the people hath sustained by reason of his Wars and for the amendment of their Estate to the intern that they may be the more ready to do him service and the more willing to assist and aid him in time of need hath granted certain Articles the which he supposeth shall not onely be observed of his leige people but also shall be as much profitable or more than of the Articles heretofore granted One of the causes for the making this Act L. Coke f. 537 538 539. was saith the Lord Coke as in the Preamble is suggested that there was no certain punishment in many points established by the said Charters against the violators of the same which also by this Act saith he is remedied And the word People here saith he doth include all the Kings Subjects c. And again the word Pain ne fuit estable some read saith he Pain ne fuit execute and that is true in effect but the Original is Pain ne fuit estable that is no pain was set down certain And saith he fol. 539. This Act had but the force of a Charter until confirmed by this Parliament the 34th Ed. 1. And that these Charters should be read four times in the year in full County here is an order taken for the publishing And Ou remedie ne fuit avant c. is to be construed saith he where no Action was given by the Kings Writ to be pursued at Common Law c. Again here saith he for the better Execution of those glorious two Lights Magna Charta and Charta Forestae a new Court and new Justices were appointed c. Again saith he these clauses against the Kings Servants out of their places as well as others And to hear the Plaints without delay day by day and to determine them without admitting such delaies as be at Common Law was the first ground of the raising of the Justices called Trail Baston and their Courts so called in respect of their precipitate proceedings from day to day without such convenient leisure and time as Common Law allowed c. they in the end had such Authoritie as Justices in Eyer but albeit they had their Authoritie by Act of Parliament yet if they erred in judgement a Writ of Error did lie by the general Rule of the Common Law to reverse the Judgement in the Kings-Bench which being once resolved and known and their Jurisdiction fettered with so many limitations their Authoritie by little and little vanishâ—d Expost and Quer. Was there any certain Pain established by this Statute against the violators of Magna Charta other than by Commission in Eyer that the Justices might determine and punish the Offendors by Imprisonments Fines or Amerciaments according to the Trespass Ought not the Justices of the Kings-Bench to have so punished all such as were Indicted before Sheriffs or Justices in Eyer who had power to inquire and certifie them of all such Offendors and Offences against Magna Charta by the Statute of Marlebridge 51. Hen. 3d Doth not the Lord Coke say elsewhere That all Statutes ought to be construed so as that there should be no failer of Justice should not the Justices of the Kings-Bench have construed Magna Charta so Doth not the 14th chap. of Mag. Charta expresly direct That all offendors ought to be Amercied by their equals according to the quantitie of the Trespass Doth the Lord Coke speak truth when he saith this Statute gave any man Remedie for the certaintie of the punishment other than Magna Charta did before Was it not made more uncertain by referring it to the Justices in Eyers discretion whether Amerciaments Fyne or Imprisonment Doth he not confess plainly when he saith It is true in effect that the Pain was not Executed as some read instead of the Pain was not Established That it was the fault of the Justices of the Kings-Bench in not Executing the Pain of Amercying c. as they might and ought to have done was the cause of Impowering the Justices in Eyer who were but Enquirers before now to determine and punish such Offendors and Offences as they did forbear viz. The Kings Servants with whom by this time they of the Kings-Bench tampered for their Offices And was it not for the same cause the people were Declared to be choosers of Justices in Eyer And doth not the Lord Coke shew a great spight between himself and his brethren whom he would have to be ancient and the Justices in Eyer whom he calleth a new Court and new Justices And shew his Memory to be weak as his Envy was strong when he is forced to give himself the Lye either here or in his Exposition of the Stat. of Marlebridge where he saith They were then Justices and a court though but for Inquirie And upon the 23th Chap. of Magna Charta he saith they used before that time to give charge to all Juries concerning Wears c. Doth not the Lord Coke say fol. 235. That Bracton wrote before the making West 1. which was 3. Ed. 1 And doth not Bracton lib. 3. cap. 11 12 and 13. say Justices in Eyer were before his time Doth not Camden in his Britannia pag. 104. say They were Instituted by King Hen. 2 Doth not Hoveden in his Annais part poster fol. 113. b. confirm the same And add that K. Hen. 2. divided the Realm in six parts setled threâ— Justices in Eyer to every part whose names he relateth And doth not the Mirror of Justice lib. 3o. Tit. 1o. Justice in Eyer declare their power at large And as for their Election by the people doth he not say fol. 538. That Magna charta c. containeth the substance of all that is contained in these Articles And doth he not say in his Preamble That Magna Charta is an Act declarative of the ancient Laws and Customs of England before it and no introductive of any new And fol. 558. That of ancient time before the making of this Act all such Officers or Ministers as were instituted either for Preservation of the Peace of the County or for execution of Justice because it concerned all the Subjects of that County and they had a great interest in the due and just exercise of their places were by force of the Kings Writs in every several County chosen in full and open County by the Free-holders of the same County Again saith he So it was then and yet is of Coroners and so it was then and yet is of Knights of the Shire for Parliaments and of the Verdors of a Forest and likewise it was of ancient time of the Sheriff of the County and restored by this Act but this is altered by divers Acts of Parliament Now were not Justices in Eyer therefore
that were before Magna Charta chosen by the peole as they were Ministers of Justice wherein the people were concerned And were they by this Act but restored to their ancient jurisdiction as the Lord Coke saith Sheriffs were Was not that alteration which was made by divers Acts of Parliament made by such Acts as were contrary to Magna Charta And are not or ought not all such Acts to be void as the L. Coke hath elsewhere said Doth not these contradictions declare the Lord Coke to have been distracted with spight and envy against â—ustices in Eyer And where in this leaf he would perswade the people to suspect Justices in Eyer of corruption and Monopolizing justice to wrong the people that chuse them can the people believe that these Justices who are to be chosen by them and to be displaced by them when and as often as they see cause will or can wrong them more than those chosen by the King and his Servants without their consents unless they can believe that they may be perswaded to give their consents to wrong themselves Is it not a Bull of less formality than ever any Popish Bull was keeping a man off with his Horns That he shall have no hold of his tail when he saith That the clause where no remedy was before c. ought to be expounded where no Action was given by the Kings Writs to be pursued at Common Law Since by the Statute of Marlebridge Justices in Eyer were to inquire by the Kings Writs and now are by express words of this chapter not onely to inquire but also to determine by virtue of their Commissions without the Kings Writs And what cause could they or can any other Court determine by virtue of their Commission without the Kings Writs but is Actionable by the Kings Writs What doth this Statute give by virtue of this Commission if all things Actionable by Writs be not determinable by these Commissions without Writs And what doth this Statute avail if not constructable as others so that there should be no failer of justice Where was the failer of justice but in the Kings Courts and Iudges in not executing justice upon the Offendors of Magna Charta Doth it not therefore appear that the said clause Where no Remedy was before ought to be expounded where no remedy was given before by Iustices in Westminster against the Kings Servants and themselves that were the greatest contractors in the breaches of Magna Charta Were not the Iustices in Eyer therefore inabled with a power to supply their defaults faults and to do right to the People against the King himself and all his Servants at Westminster that wilfully failed in their justice and power And where he saith The Justices called Trail Baston had like authoritie as Justices in eyer and committed Errors upon pretence thereof had all their proceedings transported to the Kings-Bench doth it not appear by the Statute called Ragman that those Iustices were made by the King without the consent of the people and sent abroad perhaps of purpose to err and abuse the people to give colour to the Kings-Bench to send their Writs of Error for the proceedings of the Iustices in Eyer upon pretence of like Errors so to suppress all Iustice against themselves and their Creatures Doth not the Lord Coke here withal prefer the chargeable delaies of causes spun out by Termes and Years before speedy justice done day by day at mens own doors which he calleth Piecipitat Doth he not ground this course for suppressing speedy justice by Writs of Errors upon the resolution of the Iudges at Westminster which he al leadgeth as sufficient to maister Authority given by Act of Parliament And is it not the resolution of all Lawyers that no power but Parliament is equal to Parliament and no Parliament to be so impowred as to cross Magna Charta and its Confirmations Doth he not further sol 559. alleadge the resolution of all the Iudges of England against the King and his Councel for an Erroneous Act when they had chosen a Sheriff for Lincoln in a case of necessity without the consent of the People But to hasten this Treatise to an end I shall end this Statute for this time with few chapters following viz. The King hath granted unto his people Cap. 8. Elect. of Sherifts that they shall have Election of their Sheriff in every Shire where the Sheriffalty is not of the Fee if they list I shall say no more to this than hath been said before In summons and Attachements in Plea of land C. 25. Summons A. â—ach the Whits from henceforth shall contain 15. days full at the least after the Common Law if it be not in Attachement of Assizes taken in the Kings presence or of Pleas before Iustices in Eyer during the Eyer Upon this I must ask Expost and Quer. Is not a Writ of Debt Summons Should not that be given to the party which ought to be summoned Should not an Attachement follow by distinction of 15. days as this Statute prescribeth Shall the repealed Statute of the 25th of Ed. the 3d serve Lawyers turns to make a distinction between a Plea real and Personal And shall that Writ of Summons be counterfeited either in it self or in its return as aforesaid Such Executions shall be done of them that make false Returns of Writs Ca. 16. False Retur of Wr. whereby right is deferred as it is ordained in the 2. Statute of Westminster with like pain at the Kings commandment This is an Act of Confirmation L. C. upon Ca. 16 f. 568. whereby the Statute of Westminster the 2d. cap. 39th touching false returns is confirmed Doth not the 2d Statute of Westminster cap. 39. say Expost Q. That the King hath commanded that Sheriffs shall be punished by the Justices once or twice if need be for such false Returns and if they offend a third time none shall have to do therewith but the King c Doth not the Court of Kings-Bench assume the King to be always there in Person And what they speak to be his own speech Is it not they therefore that should punish Sheriffs for their false Returns the third time of their offence But is it not indeed they and their Creatures as well as those of the Common-Pleas do make false Returns in the names of the Sheriffs of Lâ—ndon and Middlesex and do consequently make those Sheriffs liable to Actions as aforesaid How can they punish those Sheriffs for those false Returns which they themselves suffer their Clerks to make unknown to the Sheriffs as aforesaid And who but they cause or suffer all Sheriffs falsly to Return Exigents with the words Per judicium Coronatorum and the Coroners names who know no such thing And if any man be Out-lawed without the judgement of the Coroners of his County or any mention made thereof in the Sheriffs Return is not that Outlawry as injurious
more increase and enhance the Markets of their Justice by suffering no other Judges to admonish or Justifie any offendors at home and ingrossing all to themselves at Westminster or before such as they send to fripper for them in Assizes Goal-Deliveries and Nisi priusâ—s Have not some present Grafts of the old stock Judges of Assizes in possibility for the Countrey their Agents in Chancery procured several late Injunctions to be dissolved in Chancery without the privity of both parties whom they concerned to the end onely to beget work for them in the Assizes lest they should want better Did our late Judges lawfully counsel King Charls in his busines when they gave their Resolutions for him concerning the Ship-money Did they not assent to a thing or things that turned to his dammage and disherison and overturned him and his Posterity out of three Kingdoms and his life to boot when they assented to Ship money and Monopolies Did not the Kings Councel and other Serjeants and Lawyers draw if not plot all such Patents Got they not more by their Fees for their advise therein which were present pay than the King did by his reservations for interest in those Grants which are yet in Arrear Was any thing reserved to the King thereby but what his Councel learned thought fit and advised him to take and the Paâ—â—ntees to give Did not those Judges that had the keeping of both the Kings Seals assent to all those unlawfull things whatsoever they Sealed Briefly doth not this Oath in every point evidence the Judges at Westminster and their brethren to have been the chief betrayers of Kings and People in their chief trust to guide and hold both in the right way and did they not lead both wrong And thereby are the chief Authors of all the blood spilt and estates ruined in these three Kingdoms in and by these late Wars which were undertaken for Reformation onely of such deformities in Law and Government which you see they had power to keep in form by their lawfull judgements or admonitions to the right or not consenting to the wrong Do not our Records and History testifie that all the Civil Wars of England were alwaies undertaken for Reformation of Injustice evil Government and corrupt Lawyers that were alwaies the causers thereof by breaking and causing to be broken the Liberties of Magna Charta which the People sought alwaies to recover Were not Hugh D'Burgo Chief Justice of England Walter D'Lancton Lord Treasurer of England Brember Trisilian Bellknap Thorp c. examples of their times in that case If so few examples will not serve to make all Judges mend should not all such Judges be made examples to serve posterity to see that such evils are not necessary for Common-wealths Shall such Extrajudical Judges such lawless Lawyers c. as will not be tied by Oaths made in and by Parliaments Excommunications denounced by Authority of Parliaments Charters Signed Sealed and Confirmed in and by Parliaments nor by Acts Laws and Statutes made by full and free Parliaments be suffered to sit with Christians in Parliaments to make Laws Votes Oaths and other Obligations upon Christians which shall be none to themselves But let us see further what an other Act of Parliament saith to this Oath as ensueth viz. The Statut. 20. E. 3. Pream Letter Justice Edward by the Grace of God c. To the Sheriff of Stanford greeting Because that by divers complaints made to Vs We have perceived that the Law of the Land which We by Our Oath are bound to maintain is the less well kept and the execution of the same disturbed many times by maintenance and procurement as well in the Court as in the Countrey We greatly moved of Conscience in this matter and for this cause desiring as much for the pleasure of God and ease and quietness of Our Subjects as to save Our Conscience and for to save and keep Our said Oath by the assent of the Great men and other Wise men of Our Councel We have ordeined these things following viz. First Cap. 1. We have commanded all Our Iustices that they shall from henceforth do even Law and execution of right to all our Subjects rich poor without having regard to any person and without letting to do right for any letters or commandment which may come to them from Vs or from any other or by any other cause And in that any letters Letters writs or commandments come to the Iustices or to other deputed to do Law and right according to the usage of the Realm in disturbance of the Law or of the execution of the same or of right to the parties the Iustices and other aforesaid shall proceed and hold their Courts and Processes where the Pleas and matters be depending before them as if no such Letters Writs or commandments were come to them And they shall certifie Vs Our Councel of such commandments as be contrarie to the Law as before is said And to the intent that our Iustices should do even right to all people Justice in the manner aforesaid without more favour shewing to one more than to another We have done Our said Iustices to be sworn that they shall not from henceforth as long as they shall be in office of Iustice Fees Roabs take Fee nor Roabe of any man but of Our self And they shall take no gift nor reward by themselfs nor by other privily nor apertly of any man that hath to do before them by any way except meat and drink and that of small valure and that they shall give no counsel to a great man nor small in case where We be Partie or which do or may touch Vs in any point upon pain to be at Our will Bodie Lands and Goods to do thereof as shall please us in case they do contrarie And for this cause We have increased the Fees of the same our Iustices in such manner that it ought reasonably to suffice them Expost and Quer. Doth not the King say here He is bound by his Oath to maintain the Laws of the Land Doth not the Lord Coke say before That a King in his Politick capacitie cannot dye Did not or ought not all Kings of England take the like Oath as this King did Were they not therefore bound to maintain the Laws of England as well as he and to be advised and ruled by their Judges how to maintain them as the Oath of the Judges this Statute and others do manifest they were Are not Judges as Immortal as Kings in their Politick capacity Are they not bound by their Oaths not onely to maintain and execute the Laws of England against all men without regard of Persons but also to advise their Kings to maintain them and how so to do and to hinder or not consent with their Kings to break them Were not the maintenances whereof the King here complaineth and the procurements as well in Court as
in Countrey whereby he saith the Laws and the due execution thereof were disturbed the remainders of the Factions of the Spencers and others who in Edward the 2d. his time had made such Judges as had put all Laws out of all order so that this King being Edward the 3d. could not reform what had been deformed hitherto but now endeavoureth to do it by means of this Oath made in Parliament in the 18th year of his Reign and this Act made in the 20th If Kings endeavoured to perform their duties as this King did and Judges would not should not such Judges suffer as in this Kings time divers did If Kings and Judges contrary to their Oaths and Offices omit their duties as this Kings Father and his Judges did should not such Kings and Judges suffer for their defaults as he and they did If Kings and Bishops did lately neglect their duties contrary to their Oaths and Offices and were punished for their defaults why not such Judges as were the greater Delinquents for suffering them so to offend and more for consenting thereto And more than that when they advised the same If the secret Sacriledge of one Achan deserved Gods indignation against all his People of Israel until they discovered and punished him and his Offence What doth the manifest extortion a sin no less prohibited than Sacriledge of so many Achans merit of Gods Judgements against the whole Nation of England if they prosecute not or leave unpunished their Offences which are more than Extortions as Perjuries Forgeries Sacriledge it self and divers others spoken of before Judge O People Judge your selves O ye People least ye be Judged FINIS POST-SCRIPT IF it please the Parliament to require more proofs than common experience of the common breach of all the Common Law of England by our common Mercinary Judges they may cause Commissions in Eyer or other Oyers and Terminers to be issued to clear the matter by more particular evidences Eight Observable POINTS OF LAW Executable by Justices of the Peace in their Counties and Magistrates in their Corporations Necessary to be known to the COMMON PEOPLE 1. The choise of all Officers of Peace and Trust anciently in the People cōfirmed by Magna Chart. 1 COunties and Sheriffs Turns were ancient Courts in the time of King Arthur before And in the Turns were tried all Pleas of the Crown in the Counties all Common-Pleas under fourty shillings without Writ and above to any value with Writs according to the Law maxim Quod placita de Catallis debitis c. quae summam 40s attingunt vel excedunt secundùm legem consuetudinem Angliae sine brevi Regis placitari non debent See the Lord Coke upon the 35th Chap. of Magna Charta and upon the Stature of Gloucester fol. 310. 312. Hundreds and Court Burons have the same power and rights and neither Sheriffs nor Stewards are Judges but suiters onely fol. 312. And so all men were to have Law and Justice at home cheap and near and not to fetch it from Westminster far and dear And the Conservators otherwise called Guardians of the Peace before Magna Charta and since had all necessary power to govern their Counties in Peace and to execute all Laws conducing thereunto and to command the power of their Counties to assist them and were chosen as all other Officers of Peace and Trust were by their Counties as the Lord Coke affirmeth 2. This Mutuatus is usual in the Kings-Bench and Common-Pleas to fetch poor men not worth 40. s. from York or Cornwall to London for 5. s. debt or less and to Outlaw him in the Common-Pleas if he come not which example other Courts of Record follow too much 2. As Superiour Courts ought not to incroach upon Inferiour so the Inferiour ought not to defraud the Superiour of those causes that belong to them viz. Neither ought a man be sued in any Court of Record for debt not amounting to 40s by way of mutuatus and other lawless tricks dayly used by Attornies nor in any inferiour Court for debt of 40 shillings or exceeding by dividing it into Actions under 40 shillings In which cases the Defendant ought to be admitted to plead to the jurisdiction of the Court and to have a Prohibition to stay the suit see the Lord Coke upon the Stat. of Glouc. fol. 311. And all Courts were to dismiss all Actions entred without sufficient bail to prosecute answerable for costs and damages If non-suited or cast and not Jo. Do. and Rich. Ro. as is used See F. H. Just P. the Register and Fitz. H. Nat. brevium at large And no Court of Record was to proceed in any action of debt before the Plantiff swore his said debt to be 40s or more and his damage in trespass to be so much at least And if Battery that he was beaten indeed to his uncurable hurt to that value See the Stat. of Glouc. and the L. Coke upon it with his reason for the discontinuance of this practice 3. Doth not the denial of an Habeas Corpus to bring a prisoner before a Judge without Fees both to Judge and Attorney include the sale delay and deniall of Justice while the prisoner is unprovided to buy it 3. All the Kings Writs for the doing justice and right to all men freely and speedily without delay or denial ought to be granted and had freely at the Kings cost And justice ought to be done freely without sale fully without denial and speedily without delay whereby saith the Lord Coke it appeareth that justice must have three qualities viz. To be Free because nothing is more vile than what is venal Full and perfect that it may not halt And speedy because delay is a kind of denial See the L. Coke upon the Stat. of Marlbr chap. 80. Thus to have and do was the Common Law of England and the Liberties and Right of the People before Mag. Char. and saved unto them by it and the best Birth-right they ever had or can have whereby their Lands Goods Wives Children Bodies Lives Honours and Estimations ought to be protected from injuries See the L. C. upon the 29 38 c. of M. C. 4. All defaults offences of Sheriffs Coroners Escheatours c. inquirable and punishable by Justices of Peace 4. Therefore Magna Char. ought to be read and published to the People in all Cathedrals twice yearly And all breakers thereof are excommunicated ipso facto and so twice pronounced by two Acts of Parliament Tit. confirm excommengm t in Rast abridg fol. 65. and 148. And it ought to be read in full County in every shire four times yearly and all the breakers thereof inquired of there and further inquired of and punished by Fines Imprisonments c. by Justices in Eyre two of every Counties chusing whereby 12. or 14. may serve in circuits throughout England and Wales divided into six or seven Provinces as twelve did serve