Liberties and of other contained in our Charter of liberties of our Forest the Archbishops Bishops Abbots Priors Earls Barons Knights Freeholders and other our Subjects have given unto us the fifteenth part of all their movables 5. And we have granted unto them on the other part that neither we nor our Heirs shall procure or do any thing whereby the Liberties in this Charter contained shall be Infringed or Broken 6. And if any thing be procured by any Person contrary to the premisses it shall be had of no force nor effect These being Witnesses Lord B. Arch-bishop of Canterbury E. Bishop of London c. We Ratifying and approving these Gifts and Grants aforesaid confirm and make strong all the same for Us and our Heirs perpetually And by the Tenour of these presents do renew the same Willing and granting for Us and our Heirs that this Charter and all and singular his Articles for ever shall be stedfastly Firmly and Inviolably observed And if any Article in the same Charter contained yet hitherto peradventure hath not been kept We will and by Authority Royal Command from henceforth firmly they be observed In Witness whereof we have caused these our Letters Patents to be made T. Edward our Son at Westminster the twenty eighth day of March in the twenty eighth year of our Reign Notes on Magna Charta THis Excellent Law holds the first place in our Statute Books for though there were no doubt many Acts of Parliament long before this yet they are not now Extant 't is called Magna Charta or the Great Charter not in Respect of its Bulk but in Regard of the great Importance and weight of the matters therein contained it is also styled Charta Libertatum Regni the Charter of the Liberties of the Kingdom and upon great reason saith Cook in his Proem is it so called from the effect Quia liberos facit because it makes and preserves the people free Though it run in the stile of the King as a Charter yet as my Lord Cook well observes on the 38 Chapter it appears to have passed in Parliament for there was then a Fifteenth granted to the King by the Bishops Earls Barons Free-tenants and people which could not be but in Parliament nor was it unusual in those times to have Acts of Parliament in a Form of a Charter as you may read in the Princes case Co. Rep. L. 8. Likewise though it be said here that the King hath given and granted these Liberties yet they must not be understood as meer Emanations of Royal Favour or new Bounties granted which the people could not justly challenge or had not a Right unto before For the Lord Cook at divers places asserts and all Lawyers know that this Charter is for the most part only Declaratory of the principal grounds of the Fundamental Laws and Liberties of England no new freedom is hereby granted but a Restitution of such as lawfully they had before and to free them of what had been usurped and encroached upon them by any power whatsoever and therefore you may see this Charter often mentions Sua Jura their Rights and Liberatâ—s suas their Liberties which shews they had them before and that the same now were Confirmed As to the occasion of this Charter it must be noted that our Ancestors the Saxons had with a most equal poize and temperament very wisely contriv'd their Government and made excellent provisions for their Liberties and to preserve the People from oppression and when William the Norman made himself Master of the Land though he be commonly called the Conquerour yet in truth he was not so and I have known several Judges that would Reprehend any Gentleman at the Bar that casually gave him that Title For though he killed Harold the Usurper and Routed his Army yet he pretended a right to the Kingdom and was admitted by Compact and did take an Oath to observe the Laws and Customs But the truth is he did not perform that Oath so as he ought to have done and his Successors William Rufus King Stephen Henry the First and Richard likewise made frequent Encroachments upon the Liberties of their People but especially King John made use of so many Illegal Devices to drain them of Money that wearied with intollerable oppressions they resolved to oblige the King to grant them their Liberties and to promise the same should be observed which King John did in Running-mead between Stains and Windsor by two Charters one called Charta Libertatum The Charter of Liberties the Form of which you may read in Math. Paris Fol. 246. and is in effect the same with this here recited the other the Charter of the Forrest Copies of which he sent into every County and commanded the Sheriffs c. to see them fulfilled But by ill Council he quickly after began to violate them as much as ever whereupon Disturbances and great miseries arose both to himself and the Realm The Son and Successor of this King John was Henry the Third who in the 19th Year of his Reign Renewed and Confirmed the said Charters but within two Years after Cancelled them by the pernicious advice of his Favourites and particularly Hubert de Burgh whom he had made Lord Chief Justice one that in former times had been a great Lover of his Countrey and a well deserving Patriot as well as learned in the Laws but now to make this a step to his Ambition which ever Rideth without Reins perswaded and humored the King that he might avoid the Charters of his Father King John by Duresse and his own Great Charter and Charta de Foresta also for that he was within Age when he granted the same whereupon the King in the eleventh Year of his Reign being then of full Age got one of the great Charters and of the Forrest into his Hands and by the Council principally of this Hubert his Chief Justice at a Council holden at Oxford unjustly Cancelled both the said Charters notwithstanding the said Hubert de Burgh was the primier Witness of all the Temporal Lords to both the said Charters whereupon he became in high Favour with the King insomuch that he was soon after viz. the 10th of December in the 13th Year of that King Created to the highest Dignity that in those times a Subject had to be an Earl viz. of Kent But soon after for Flatterers and Humorists have no sure Foundation he fell into the Kings heavy Indignation and after many fearful and miserable Troubles he was justly and according to Law Sentenced by his Peers in an open Parliament and justly Degraded of that Dignity which he unjustly had obtained by his Council for Cancelling of Magna Charta and Charta de Foresta In the 9th Chap. of this great Charter all the Ancient Liberties and Customs of London are Confirmed and preserved which is likewise done by divers other Statutes as 14 Edw. 3. Cap. 2. c. The 29 Chapt. NO FREE-MAN SHALL BE TAKEN
when they had them best 2. And if any Statutes have been made by Us and our Ancestors or any Customs brought in contrary to them or any manner of Article contained in this present Charter We Will and grant that such manner of Statutes and Customs shall be void and frustrate for evermore CHAP. V. Pardon granted to certain Offenders MOreover we have pardoned Humphrey Bohun Earl of Hereford and Essex Constable of England Roger Earl of Norfolk and Suffolk Marshal of England and other Earls Barons Knights Esquires and namely John de Ferrariis with all other being of their Fellowship Consederacy and Bond and also of other that hold 20 l. Land in our Realm whether they hold of us in Chief or of others that were appointed at a day certain to pass over with us into Flanders the Rancour and Evil will born against us and all other Offences if any they have committed against us unto the making of this present Charter CHAP. VI. The Curse of the Church shall be Pronounced against the Breakers of this Charter ANd for the more assurance of this thing we will and grant that all Archbishops and Bishops for ever shall read this present Charter in Cathedral Churches twice in the Year and upon the Reading thereof in every of their Parish-Churches shall openly Denounce accursed all those that willingly do procure to be done any thing contrary to the tenour force and effect of this present Charter in any point and article In witness of which thing we have set our Seal to this present Charter together with the Seals of the Archbishops Bishops which voluntarily have sworn that as much as in them is they shall observe the tenour of this present Charter in all Causes and Articles and shall extend their faithful Aid to the keeping thereof c. The Comment THe word Tallage is derived from the French word Tailler to share or cut out a part and is Metaphorically used for any Charge when the King or any other does cut out or take away any part or share out of a Mans Estate and being a general word it includes all Subsidies Taxes Tenths Aids Impositions or other Charges whatsoever The word Maletot signifies an Evil that is an unjust Toll Custom Imposition or Sum of Money The occasion of making this Statute was this King Edward being injured by the French King resolves to make War against him and in order thereunto requires of Humphrey le Bohun Earl of Hereford and Essex and Constable of England and of Roger Bigot Earl of Norfolk and Suffolk and Marshal of England and of all the Earls Barons Knights Esquires and Freeholders of 20 l. Land whether they held of him in Capite to contribute towards such his expedition that is to go in Person or find sufficient Men in their places in his Army which the Constable and Marshal and many of the Knights and Esquires and especially this John Ferrers taking part with them and all the Freemen stoutly denyed unless it were so ordained and determined by common consent in Parliament according to Law And it seems the contest grew so hot that Baker's Chronicle Folio 99. relates a strange Dialogue that pass'd between them viz. That when the Earl Marshal told the King That if his Majesty pleased to go in Person he would then go with him and march before him in the Van-Guard as by right of Inheritance he ought to do but otherwise he would not stir the King told him plainly he should go with any other though he went not in Person I am not so bound saith the Earl neither will I take that Journey without you The King swore By God Sir Earl you shall either go or Hang And I swear by the same Oath said the Earl I will neither go nor Hang. And so the King was forc'd to dispatch his expedition without them And yet saith my Lord Coke altho the King had conceived a deep displeasure against the Constable Marshal and others of the Nobility Gentry and Commons of the Realm for denying that which he so much desired yet for that they stood in defence of their Laws Liberties and free Customes the said King Edward the First who as Sir William Herle Chief Justice of the Common-Pleas who lived in his time and served him said in the time of King Edward the 3d. was the wisest King that ever was did after his return from beyond the Seas not only consent to this Statute whereby all such Tallages and Impositions are forbidden for the future but also passes a Pardon to the said Nobles c. of all Rancour Ill-will and Transgressions If any they have committed which last words were added lest by acceptance of a Pardon of Transgression they should implicitely confess that they had Transgressed so careful were the Lords and Commons in former times to preserve the Ancient Laws Liberties and free Customs of their Country But note these words Si quas fecerint If any they have committed are left out in all the Printed Books of Statutes but they are in this Statute recited by Coke in his second Book of Institutes Fo. 535. and specially noted which he would never have done if it had not been so in the Rolls And since 't is probable them may be many more like Omissions Mistakes or Falsifications crept into the Prints and for that the Râ—â—â—â—d not the printed Satute-Book varying from the Records is the Law It were to be wished that all the Rolls of Acts of Parliament were carefully by some Persons of Learning and Integrity view'd and Compared with the Prints and notice taken of all such Varâ—â—tions and of Errors committed in the Translations and of any Statutes of a publick Import if in force that were never printed and the same to be made publick Anno 25 Edw. 3. CAP. II. A Declaration what Offences shall be adjudged Treason WHereas diverse opinions have been before this time in what Case Treason shall be said and in what not 2. The King at the Request of the Lords and of the Commons hath made a declaration in the manner as hereafter followeth that is to say When a Man doth Compass or Imagine the Death of our Lord the King or of our Lady his Queen or of their eldest Son and Heir 3. Or if a man do violate the Kings Companion or the Kings Eldest Daughter unmarried or the Wife of the Kings Eldest Son and Heir 4. Or if a Man do Levy War against our Lord the King in his Realm or be Adherent to the Kings Enemies in his Realm giving them Aid and Comfort in the Realm or elsewhere and thereof be provably Attainted of open Deed by the People of their Condition 5. And if a Man Counterfeit the Kings Great or Privy-Seal or his Money 6. And if a Man bring false Money into this Realm Counterfeit to the Money of England as the Money called Lushburgh or other like to the said Money of England knowing the Money to be false to Merchandise
said probably Attainted the same is a great error For the words of the Record are Et de ceo PROVABLEMENT soit Attaint And shall be thereof PROVABLY Attaint And I cannot but admire that such a Gross mistake should be suffered since my Lord Coke has so expresly observed the difference in these words following 3 Instit fol. 12. In this Branch says he four things are to be observed 1. This word Provablement Provably that is upon direct and manifest proof not upon Conjectural presumptions or Inferences or strains of Wit but upon good and sufficient proof And herein the Adverb Provablement provably hath a great force and signifieth a direct and plain proof which word the King the Lords and Commons in Parliament did use for that the offence was hainous and was so heavily and severely punished as none other the like and therefore the offender must Provably be Attainted which words are as forcible as upon direct and manifest proof Note the word is not Probably for then Commune Argumentum might have served but the word is Provably be Attainted Secondly This word Attaint necessarily implyeth that he be proceeded with and Attainted according to the due Course and proceedings of Law and not by Absolute power or by other means as in former times had been used And therefore if a Man doth adhere to the Enemies of the King or be slain in open War against the King or otherwise die before the Attainder of Treason he forfeiteth nothing because as this Act saith he is not Attainted wherein this Act hath altered that which before this Act in Case of Treason was taken for Law And the Statute of 34 E. 3. Cap. 12. saves nothing to the King but that which was in Esse and pertaining to the King at the making of that Act. And this appeareth by a Judgment in Parliament in Ann. 29. H. 6. Cap. 1. That Jack Cade being slain in open Rebellion could no way be punished or forfeit any thing and therefore was Attainted by that Act of High Treason Thirdly Of open Deed per Apertum Factum these words strengthen the former Exposition of Provablement an Overt Act must be alledged in every Indictment upon this Act and proved Compassing by bare words is not an Overt Act as appears by many Temporary Statutes against it But there must be some open Act which must be manifestly proved As if divers do Conspire the Death of the King and the manner how and thereupon provide Weapons Powder Poison Harness send Letters or the like for the Execution of the Conspiracy If a Man be Arraigned upon an Indictment of High Treason and stand Mute that is refuse to Plead he is not to be Pressed to death but shall have the same Judgment and incurr such forfeiture as if he had been Convicted by Verdict or had confessed it For this standeth well with this word Provablement for fatetur facinus qui judicium fugit But otherwise it is in case of Petit Treason Murder or other Felony If a Subject Conspire with a Forreign Prince to Invade the Realm by open Hostility and prepare for the same by some Overt Act this is a sufficient Overt Act for the death of the King Fourthly The Composition and Connexion of the words are to be observed viz. Thereof be Attainted by open Deed This as was resolved by the Justices in Easter Term 35 of Eliz. relateth to the several and distinct Treasons before expressed and specially to the Compassing and Imagination of the death of the King c. for that is a secret in the Heart and therefore one of them cannot be an Overt Act for another as for example A Conspiracy is had to Levy War this as hath been said and so resolved is no Treason by this Act until it be levied therefore it is no Overt Act or manifest proof of the Compassing the Death of the King within this Act for the Words are de ceo c. thereof that is of the Compassing of the death Divers latter Acts of Parliament have Ordained That compassing by bare Words or Sayings should be Treason but are all either Repealed or Expired except only that of the 12 Car. 2. herein after recited which is only to be in force during the Life of his present Majesty whom God preserve And it was wont to be said bare Words may make an Heretick but not a Traitor without an Overt Act. And the Wisdom of the Makers of this Law would not make Words only to be Treason seeing such variance commonly amongst the Witnesses is about the same as few of them agree together But if words be set down in Writing by the Delinquent himself That is a sufficient Overt Act within this Statute In the Preamble of the Statute of 1 Mar. concerning the Repeal of certain Treasons declared after this Statute of the 25. of Edw. 3. and before that time and bringing back all things to the measures of this Statute It is agreed by the whole Parliament That Laws justly made for the preservation of the Common-wealth without extream punishment are more often obeyed and kept than Laws and Statutes made with great and extream punishments And in special such Laws and Statutes so made whereby not only the ignorant and rude unlearned People but also learned and expert People minding honesty are oftentimes trapped and snared yea many times for Words only without other Fact or Deed done or perpetrated Therefore this Act of 25 Edw. 3. doth provide that there must be an Overt Act. But words without any Overt Act are to be punisht in another degree as an high Misprision By People of their condition That is per Pares by their Equals 7. As to Treason by Levying War against the King we must note that thô Conspiring or Compassing to Levy War without a War de Facto be no Treason yet if many Conspire a War and only some few Actually Levy it all are guilty of the Treason Raising a Force to burn or throw down a particular Inclosure is only a Riot but if it had been to have gone from Town to Town to throw down all Inclosures or to change Religion or the like it were Levying of War because the intended mischief is Publick Holding a Fort or Castle against the Kings Forces is Levying of War 8. As touching the Interpretative Treasons by Killing the Chancellor Treasurer Justice of one or the other Bench Justice in Eyre or of Assize or Oier and Terminer Note 1. This extends but only to the Persons here named not to the Lord Steward Constable or Marshal or Lords of Parliament Secondly It extends to those only during their Office Thirdly It extends only to Killing not Wounding without Death But by the Stat. 3 H. 7. C. 14. Compassing to Kill the King or any of his Council is made Felony 9. Counterfeiting the Great or Privy Seal is Treason but it must be an Actual Counterfeiting thereof Compassing to do it is no Treason Affixing the Great Seal by
the Chancellor without Warrant is no Treason Fixing a new Great Seal to another Patent is a great Misprision but no Treason being not a Counterfeiting within this Act But Aiders and Consenters are within this Act. The Counterfeiting of the Privy Signet or Sign Manual is no Treason within this Act but made by the Statute 1. Mar. c. 6. 10. Treason concerning Coin is either Counterfeiting the Kings Coin and this was Treason at Common Law and Judgment only as of Pettit Treason but Clipping c being made Treason by subsequent Statutes the Judgment is to be Drawn Hang'd and Quarter'd Money here extends only to the Proper Money of this Realm But now by the 1. M. c. 6. Forging or Counterfeiting Money made current by Proclamation is High Treason and by 14. Eliz. c. 3. Forging of Forreign Coin not current here is Misprision of Treason in the Forgers their Aiders and Abettors And not that the bare Forging of the Kings Coin without Uttering is Treason The second Offence concerning Money here declared to be Treason is If any person bring into this Realm Counterfeit Money Where note 1. It must be Counterfeit 2. Counterfeited to the similitude of English Money 3. It must be brought from a Forreign Realm and therefore not from Ireland 4. It must be brought knowingly 5. Brought and not barely uttered here But by the Statute De Moneta if false or clipt money be found in a persons hands and he be suspitious he may be Arrested till he can clear himself 6. He must merchandize therewith that is make payment thereof 11. As this Statute leaves all other doubtful matters to be declared Treason in Parliameâ—t but not to be punish'd as such till so declared So in succeeding Kings Reigns abundance of other matters were declared Treason which being found very grievous and dangerous by the Statute of 1 Mar. Cap. 1. it is Enacted That thenceforth no Act Deed or Offence being by Act of Parliament or Statute made Treason Petty Treason or Misprision of Treason by Words Writing Ciphering Deeds or otherwise however shall be taken had Deemed or Adjudged to be High-Treason Petty Treason or Misprision of Treason but only such as be declared and expressed to be Treason Petty Treason or Misprision of Treason by this Statute of the 25. Edw. 3. 12. The Offences made High Treason by Statutes since this first of Mary are as follow Refusing the Oath of Supremacy upon second Tender is Treason by 5. Eliz. Cap. 1. but no Corruption of Blood so likewise is Extolling the Power of the Bishop of Rome a Premunire and the bringing in of Bulls or putting them in Execution or Reconciling to the Church of Rome is Treason by the same Statute Bringing in Dei's is a Premunire 23. Eliz. C. 1. Also absolving Subjects from their Obedience or Reconciling them to the Obedience of Rome is Treason 27. Eliz. Cap. 2. So is it likewise for a Priest coming into England not submiting in two days The like for English men in Forreign Seminaries But Besides these Old Treasons since the happy Retâ—uration of His Majesty The zealous regards his Subjects in Parliament had for the safety of his Sacred Person and Government thought sit to prefer and make the Statute following Anno Regni Car. 2. Regis decimo tertio CAP. I. An Act for Safety and Preservation of His Majesties Person and Government against Treasonable and Soditious Practises and Attempts THe Lords and Commons Assembled in Parliament deeply Weighing and Considering the Miseries and Calamities of well high twenty years before your Majesties Happy Return and withâ—l Reflecting on the Causes and Occasions of so great and diplorable Confusions do in all humility and thankfulness acknowledge your Majesties incomparable Grace and Goodness to your People in your Free and General Pardon Indempnity and Oblivion by which roar Majesty hath been pleased to deliver your Subjects not only from the Punishment but also from the Reproach of their former Miâ—carringes which unexempted Piety and Clemency of your Majestie hath Enflamed the Hearts of us your Subjects with an ardent desire to express all possible Zeal and Duty in the Care and Preservation of your Majesties Person in whose Honour and Happiness consists the good and welfare of your people and in preventing as much as may be all Treasonable and Sedititious Practises and Attempts for the time to come 2 And because the Growth and Increase of the late Troubles and Disorders did in a very great measure proceed from a multitude of Seditious Sermons Pamphlets and Speeches daily Preached Printed and Published with a Transcendent boldness defaming the Person and Government of your Majesty and your Royal Father wherein men were too much Encouraged and above all from a wilful mistake of the Supream and Lawful Authority whilst men were forward to cry up and maintain those Orders and Ordinances Oaths and Covenants to be Acts Legal and Warrantable which in themselves had not the least Colour of Law or Justice to support them from which kind of Distempers as the present Age is not wholly freed so Posterity may be apt to Relapse into them if a timely Remedy be not provided 3 We therefore the Lords and Commons in Parliament Assembled having duly considered the Premisses and Remembring that in the thirteenth year of the Reign of Queen Elizabeth of ever blessed Memory a right good and profitable Law was made for Preservation of Her Majesties Person do most humbly beseech your most Excellent Majesty that it may be Enacted 4 And be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords and Commons in this present Parliament Assembled and by Authority of the same That if any Person or Persons whatsoever after the four and twentieth day of June in the year of our Lord one thousand six hundred sixty and one during the Natural Life of our most Gracious Soveraign Lord the King whom God Almighty Preserve and Bless with a Long and Prosperous Reign shall within the Realm or without Compass Imagine Invent Devise or intend Death or Destruction or any Bodily Harm tending to the Death or Destruction Maim or Wounding Imprisonment or Restraint of the Person of the same our Soveraign Lord the King 5 Or to deprive or depose him from the Style Honour or Kingly Name of the Imperial Crown of this Realm or of any other His Majesties Dominions or Countries 6 To Levy War against His Majesty within this Realm or without 7 Or to move or stir any Forraigner and Strangers with force to Invade this Realm or any other His Majesties Dominions or Countries being under His Majesties Obeysance 8. And such Compassings Imaginations Inventions Devices or Intentions or any of them shall express utter or declare by any Printing Writing Preaching or malicious and advised Speaking being Lawfully Convicted thereof upon the Oaths of two Lawful and Credible Witnesses upon Tryal or otherwise Convicted or Attainted by due Course of Law then every
such person and persons so as aforesaid offending shall be deemed declared and Adjudged to be Traytors and shall suffer pains of Death and also lose and Forfeit as in Cases of High Treason 2. And be it further Enacted by the Authority aforesaid That if any person or persons at any time after the four and twentieth day of June in the year of our Lord one thousand six hundred sixty and one during his Majesties Life shall Malitiously and Advisedly publish or affirm the King to be an Heretick or Papist or that he endeavourr to introduce Popery 2. Or shall Malitiously and Advisedly by Printing Writing Preaching or other Speaking Express Publish Vtter or Declare any words sentences or other thing or things to Incite or stir up the people to Hatred or dislike of the Person of His Majesty or the Established Government 3 Then every such person and persons being thereof Legally Convicted shall be disabled to have or enjoy and is hereby disabled and made incapable of having holding enjoying or exercising any Place Office or Promotion Ecclesiastical Civil or Military or any other Imployment in Church and Stateother than that of his Peerage and shall likewise be liable to such further and other Punishments as by the Common Laws or Statutes of this Realm may be inflicted in such Cases 4 And to the end that no man hereafter may he misled into any Seditious or Vnquiet Demeanour out of an opinion that the Parliament B-gun and held at Westminster upon the third day of November in the year of our Lord one thousand six hundred and forty is yet in being which is undoubtedly Dissolved and Determined and so is hereby declared and adjudged to be fully dissolved and determined 5 Or out of an opinion that there lies any Obligation upon him from any Oath Covenant or Engagement whatsoever to endeavour a Change of Government either in Church or State 6 Or out of an Opinion that both Houses of Parliament or either of them have a Legislative Power without the King 7 All which Assertions have been seditiously maintained in some Pamphlets lately Printed and are dayly promoted by the Active Enemies of our Peace and Happiness 3. Be it therefore further Enacted by the Authority aforesaid That if any person or persons at any time after the four and twentieth day of June in the year of our Lord. one thousand six hundred sixty and one shall Maliciously and Advisedly by Writing Printing Preaching or other Speaking Express Publish Vtter Declare or Affirm That the Parliament Begun at Westminster upon the third day of November in the year of our Lord one thousand six hundred and forty is not yet Dissolved or is not Determined or that it ought to be in being or hath yet any Continuance or Existence 2 Or that there lies any Obligation on him or any other person from any Oath Covenant or Engagement whatsoever to endeavour a Change of Government either in Church or State 3 Or that both Houses of Parliament or either House of Parliament have or hath a Legislative Power without the King or any other words to the same Effect 4 That then every such person and persons so as aforesaid offending shall incurr the danger and penalty of a Premunire mentioned in a Statute made in the sixteenth year of the Reign of King Richard the Second 5 And it is hereby also declared That the Oath usually called the Solemn League and Covenant was in it self an Unlawful Oath and Imposed upon the Subjects of this Realm against the Fundamenaal Laws and Liberties of this Kingdom 6 And that all Orders and Ordinances or pretended Orders and Ordinances of both or either Houses of Parliament for imposing of Oaths Covenants or Engagements Levying of Taxes or Raising of Forees and Arms to which the Royal Assent either in Person or by Commission was not expresly had or given were in the first Creation and Making and still are and so shall be taken to be Null and Void to all Intents and Purposes whatsoever 7 Provided never theless That all and every person and persons Bodies Politick and Corporate who have been or shall at any time hereafter be questioned for any thing Acted or Done by Colour if any the Orders or Ordinances herein before mentioned and declared to be Null and Void and are Indempnified by an Act Intituled An Act of Free and General Pardon Indempnity and Oblivion made in the twelfth year of His Majesties Reign that now is or shall be Indemnified by any Act of Parliament shall and may make such use of the said Orders and Ordinances for their Indemnity according to the true intent and meaning of the said Act and no other as he or they might have done if this Act had not been made any thing in this Act contained notwithstanding 4. Provided always That no person be Prosecuted for any of the Offences in this Act mentioned other than such as are made and declared to be High Treason unless it be by order of the Kings Majesty his Heirs or Successors under his or their Sign Manual or by order of the Council Table of his Majest his Heirs of Successors directed unto the Attorney General for the time being or some other of the Council learned to His Majesty His Heirs or Successors for the time being 2 Nor shall any Person or persons by vertue of this present Act incur any the Penalties herein before mentioned unless he or they be Prosecuted within six months next after the offence Committed and Indicted thereupon within three months after such Prosecution any thing herein contained to the contrary notwithstanding 5. Provided always and be it Enacted That no person or persons shall be Indicted Arraigned Condemned Convicted or Attainted for any of the Treasons or Offences aforesaid unless the same Offender or Offenders be thereof Accused by the Testimony and Disposition of two Lawful and Credible Witnesses upon Oath 2 Which Witnesses at the time of the said Offender or Offenders Arraignment shall be brought in person before him or them Face to Face and shall openly avow and maintain upon Oath what they have to say against him or them concerning the Treason or Offences contained in the said Indictment unless the party or parties Arraigned shall willingly without violence Confess the ame 6. Provided likewise and be it Enacted That this Act or any thing therein contained shall not extend to deprive either of the Houses of Parliament or any of their Members of their just Antint Freedom and Priviledge of Debating any matters or business which shall be propounded or debated in either of the said Houses or at any Conferences or Committees of both or either of the said Houses of Parliament or touching the Repeal or Alteration of any Old or preparing any New Laws or the Regressing of any Publick Grievance but that the said Members of either of the said Houses and the Assistants of the House of Peers and every of them shall have the same freedom of
whereupon he demanded Judgment whether the Plaintiffe ought to maintain that Appeal he had brought To which the Plaintiffe demurred in Law And in this Case three points were adjudged by Sir Christopher Wray Sir Thomas Gawdy and the whole Court First That the matter of the Bar had been a good Bar of the Appeal by the Common Law as well as if the Clergy had been Allowed For that the Defendant upon his Confession of the Indictment had prayed his Clergy which the Court ought to have granted and the deferring of the Court to be advised ought not to prejudice the Party Desendant albeit the Appeal was Commenced before the Allowance of it The second point adjudged was that this Case was out of the Statute of 3 Hen. 7. For that the words of that Act are If it fortune that the same Felons and Murderers and Accessaries so Arraigned or any of them to be Acquitted or the Principal of the said Felony or any of them to be Attainted the Wife or next Heir of him so slain c. may have their Appeal of the same Death and Murder against the Person so Acquitted or against the said Principals so Attainted if they be alive and that THE BENEFIT OF HIS CLERGY THEREOF before be not had And in this the Defendant Holcroft was neither Acquitted nor Attainted but Convicted by Confession and the Benefit of the Clergy only prayed as is aforesaid so as the Statute being penal concerning the Life of Man and made in Restraint of the Common Law was not to be taken by Equity but is Casus Omissus a Case Omitted and left to the Common Law As to the Third is was objected that every Plea ought to have an apt Conclusion and that the Conclusion in this Case ought to have been Et petit judicium si praediit Thomas Holcroft Iterum de eadem morte de qua semel Convictus fuit Respondere compelli debeat And he does ask judgment if the above mentione Thomas Holcroft shall be obliged to answer againe for the same death he was once Convicted of But it was adjudged that either of both Conclusions was sufficient in Law And therefore that exception was disallowed by the Rule of the Court. Note the ancient Law was that when a Man had judgment to be hanged in an Appeal of Death that the Wife and all the Blood of the Party slain should draw the Defendant to Execution and Gascoigne said Issint fuit in diebus nostris so it was done in our Days And thus much occasionally about Appeals which we the rather inserted because the practice thereof through I know not whose negligence has been almost lost or forgot till some few Years ago a Woman in Southwark revived it against one that killed her Husband and got a pardon for it but she Prosecuted him on Appeal had judgment against him and he was Executed since which time the same Course has been frequently talkt of and brought but for the most part to the shame I think of those Women or Children who make such Compositions for their Husbands or Fathers Blood they have been by some secret Bargains or Compensations husht up and seldom effectually followed Two other Statutes of King Edw. 3. Anno 4. Edw. 3. cap. 14. A Parliament shall be holden once every year ITem It is accorded that a Parliament shall be holden every year once and more often if need be Anno 36. Edw. 3. cap. 10. A Parliament shall be holden once in the year ITem for maintenance of the said Articles and Statutes and Redress of dibers MISCHIEFS and GRIEVANCES which daily happen a Parliament shall be holden every year as another time was ordained by Statute The Comment BEfore the Conquest as the Victory of Duke William of Normandy over Harold the Usurper is commonly though very improperly called Parliaments were to be held twice every year as appears by the Laws of King Edgar cap. 5. and the Testimony of the Mirrour of Justices cap. 1. sect 3. For the Estates of the Realm King Alfred caused the Committees some English Translations of that ancient Book read Earls but the word seems rather to signifie Commissioners Trustees or Representatives to meet and ordained for a PERPETUAL USAGE that twice in the year or ostner if need were in time of Peace they should Assemble at London to speak their Minds for the guiding of the People of God how they should keep themselves from Offences live in quiet and have right done them by certain Vsages and sound Judgments King Edward the first says Cook 4. Instit fol. 97. kept a Parliament once every two years for the most part And now in this King Edward the Thirds time one of the wisest and most glorious of all our Kings It was thought fit to Enact by these two several Statutes That a Parliament should be held once at least every year which two Statutes are to this day in full Force For they are not Repealed but rather Confirmed by the Statute made in the 16th of our present Soveraign King Charles the Second Cap. 1. Intituled An Act for the Assembling and holding of Parliaments once in three years at the least The words of which are as follow Because by the ancient Laws and Statutes of this Realm made in the Reign of King Edward the third Parliaments are to be held very often your Majesties Humble and Loyal Subjects the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled most Humbly do beseech your most Excellent Majesty that it may be declared and Enacted 2 And be it declared and Enacted by the Authority aforesaid that hereafter the sitting and holding of Parliaments shall not be intermitted or discontinued above Three Years at the most but that within three years from and after the Determination of this present Parliament so from time to time within three years after the Determination of and other Parliament or Parliaments or if there be occasion more or oftner Your Majesty your Heirs and Successors do Issue out your Writs for calling Assembling and holding of another Parliament to the end there may be a frequent calling Assembling and holding of Parliaments once in three years at the least Agreeable to these good and wholsome Laws are those gracious Expressions and Promises in His Majesties Proclamation touching the Causes and Reasons of Dissolving the two last Parliaments Dated April 8. 1681. Irregularities in Parliament shall NEVER make us out of love with Parliaments which we look upon as the best Method for healing the distempers of the Kingdom and the only means to preserve the Monarchy in that due Credit and Respect which it ought to have both at home and abroad And for this Cause we are resolved by the blessing of God to have frequent Parliaments And both in and out of Parliament to use OUR UTMOST ENDEAVOURS TO EXTIRPATE POPERY and to Redress all the Grievances of our good Subjects and in all things to Govern according to the
Laws of the Kingdom A DIGRESSION touching the Antiquity Vse and Power of PARLIAMENTS and the Qualification of such Gentlemen as are fit to be chosen the Peoples Representatives THe Recital of these several Laws for frequent calling of Parliaments declaring the same to be of such Importance or Necessity to the safety and wel-being of the Nation Invites us to give the vulgar Reader some further Information touching those most Honourable Assemblies which though a digression will I hope be no Transgression for I am willing at any time to go a little out of my way provided I may thereby meet with the Readers profit and Advantage Of the Names and Antiquity of Parliaments THe word PARLIAMENT is French derived from the three words Parler la ment to speak ones mind because every Member of that Court should sincerely and discreetly speak his mind for the general good of the Common-Wealth and this name saith Cook 1 Instit fo 110. was used before William the Conquerer even in the time of Edward the Confessor But most commonly in the Saxons time it was called Michegemote or Witenage Mote that is the Great Mote Meeting or Assembly whence our Ward-Mootes in London receive their name to this day or the Wise-Moote that is the Assembly of the wise men and Sages of the Land But this word Parliament is used in a double sense 1. Strictly as it includes the Legislative Power of England as when we say An Act of Parliament and in this Acceptation it necessarily includes the King the Lords and the Commons each of which have a Negative Voice in making Laws and without their joint Consent no new Laws can pass that be obligatory to the Subject 2. Vulgarly the word is used for the Two Houses the Lords and Commons as when we say the King will call a Parliament his Majesty has Dissolved his Parliament c. The Lords of Parliament are divided into two sorts viz. Spiritual that is to say the Bishops who sit there in respect of their Baronies parcel of their Bishopricks which they hold in their Politick Capacity and Temporal The Commons are likewise divided into three Classes or parts viz Knights or Representatives of the Shires or Counties where note that though the Writ require two Knights to be chosen and that they are called Knights yet there is no necessity that they should actually have the degree of Knighthood provided they be but Gentlemen for the Statute 23 Hen. 6. cap 15 hath these words That the Knights of the Shires for the Parliament hereafter to be Chosen shall be not able Knights of the same Counties for which they shall be chosen OR OTHERWISE such Notable Esquires or Gentlemen born of the same Counties as shall be able to be Knights and no man to be such Knight which standeth in the degree of a Yeoman and under Secondly Citizens chosen to Represent Cities Thirdly Burgesses that is to say those that are chosen out of Boroughs Note that the difference between a City and a Borough is this a City is a Borough Incorporate which is or has within time of Memory been an Episcopal See or had a Bishop and this althô the Bishoprick be Dissolved as West minster having heretofore a Bishop though none now still remains a City Cook 1. Instit Sect 164. Boroughs are Towns Incorporated but such as never had any Bishops Of the Three Estates in Parliament THere has been a great debate about the Three Estates some zealously pleading That the Bishops are one of the three Estates of the Realm and the Lords Temporal a Second and the Commons-house the Third and the King over all as a Transcendent by himself Others as stifly deny this and assign the King as he his the Head of the Common Wealth to be the first Estate the Lords as well Spiritual as Temporal jointly to be the Second and the Commons-House the Third Non opis est nostrae tant as Componere Lites We shall not presume to undertake a decision of this arduous Controversy but in our poor opinion the matter seems to appear more difficult than really it is by means that the contending Parties do not first plainly set down what it is they severally mean by the word Estate Which may be taken 1. For a rank degree or Condition of Persons considered by themselves different in some notable Respects from others wherewith they may be compared And in this respect my Lords the Bishops may very properly be said to be an Estate or one of the Estates of the Realm for then there will be several Estates above the number of three for so in the House of Commons there may be said to be three Estates viz. Knights Citizens and Burgesses And heretofore in the days of Popery when there were 26 Abbots and Priors that held per Baroniam too as well as the Bishops called to the Parliament and sat in the Lords House see Fullers Church History Lib. 6. 292. Whether they being Religious and Monastical Persons whereas the Bishops were Seculars no small difference in their account might not as well claim to be a distinct Estate by themselves as now the Bishops do may be a question But secondly When we spake of three Estates in the Constitution of our English Government 't is most natural to mean and intend such a poize in the Ballance or such an Order or State as hath a Negative Voice in the Legislative Power For as the King and Commons excluding the Lords so neither the King and Lords excluding the Commons much less the Lords and Commons excluding the King can make any Law but this glorious Triplicity must be in mutual Conjunction and then from their united Influences spring our happy Laws But in this sence the Lords Spiritual by themselves have no pretence to be a distinct Estate That is they have by themselves no Negative Voice which I conceive the proper Characteristick or essential Mark of each of the three Estates For suppose a Bill pass the Commons and being brought into the Lords House all the 26 Bishops should be against it and some of the Temporal Lords yet if the other Temporal Lords be more in number than the Bishops and those that side with them the Bill shall pass as the Act of the whole house and if his Majesty please to give it his Royal Assent is undoubted Law Which demonstrates the Bishops have of themselves no Negative Voice and consequently are none of the three Estates of the Realm But if any will have them called an Estate and mean something else be it if he please to explain his Notion 't is like I shall not contend with him about a fiddle faddle word Touching the Power of the Parliament THe Jurisdiction of this Court saith Cook 1 Instit Sect. 164. is so Transcendent that it maketh Inlargeth Diminisheth Abrogateth Repealeth and reviveth Laws Statutes Acts and Ordinances concerning matters Ecclesiastical Civil Martial Marine Capital Criminal and common And 4 Instit Fol. 36.
The Power and Jurisdiction of the Parliament for making of Laws in proceeding by Bill is so transcendent and absolute as it cannot be confined either for Causes or Persons within any bounds Of this Court it is truely said Si Antiquitatem spectes est vetustissima si Dignitatem est Honoratissima si Jurisdictionem est capacissima if you regard its Original it is most Antient if its Dignity it is most Honourable if its Jurisdiction it is most Capacious Sir Thomas Smith a great Statesman and in high esteem and place under Queen Elizabeth in his Treatise de Republica Anglorum L. 2. Ca. 2. gives this Character of this supream Court In Commitiis Parliamentariis posita est omnis Augustae absolutaeque potestatis vis veteres leges jubent esse irritas novas inducunt Presentibus juxta ac futuris modum constituunt Jura possessiones hominum privatorum commutant Spurios natalibus restituunt cultum divinum sanctionibus corroborant Pondera mensuras variant JUS IN REGNO SVCCEDENDI PRESCRIBVNT c. The most high and absolute power of the Realm of England consisteth in the Parliament for the Parliament abrogateth old Laws maketh new giveth order for things past and for things hereafter to be followed changeth the rights and possessions of private men Legitimateth Bastards Corroborates Religion with Civil Sanctions Alters weights and Measures PRESCRIBES THE RIGHT OF SVCCESSION TO THE CROWN defines doubtfull Rights where there is no Law already made Appointeth Subsidies Taxes and Impositions giveth most Free pardons restoreth in Blood and Name c. As for the power of Parliaments over both Statute and Common Law take it in the Accurate and Significant words of a Parliament viz. the Statute of 25 Hen. 8. Ca. 21 as follows Whereas this Realm Recognizing no superiour under God but the King hath been and is free from Subjection to any mans Laws but only to such as have been devised made and ordained within this Realm for the wealth thereof or to such other as the people of this Realm have taken at their free Liberty by their own consent to be used amongst them and have bound themselves by long use and Custome to the observance of the same not to the observance of the Laws of any Forreign Prince Potentate or Prelate but as to the accustomed and Ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with natural Equity and good Reason that all and every such Laws Humane made within this Realm or induced into this Realm by the said Sufferance Consents and Custom the King and the Lords Spiritual and Temporal and Commons Representing the whole State of the Realm in the most High Court of Parliament have full Power and Authority to dispouse with those and all other Humane Laws of the Realm and with every one of them as the quality of the Persons and matter shall require And also the said Laws and every of them to abrogate annull amplify or diminish as to the King Nobles and Commons of the Realm present in Parliament shall seem most meet and convenient for the Wealth of the Realm Thus far that notable Statute which in truth is only Declarative and in Affirmance of the Ancient Common Law of England The particular Business of Parliaments BY what hath been said you may perceive the work of an English Parliament is not as some would have it only to be Keys to unlock the peoples Purses That is but one part and perhaps one of the least parts too of their Office They are to propose new Laws that are wanting for general good and to press the Abrogation of Laws in being when the Execution of them is found prejudicial or dangerous to the publick They are to provide for Religion and the Safety and Honour of the Nation they have a power as you have heard from Sir Thomas Smith to order the Right to the Crown understand all this with the Kings consent and they have very frequently undertaken and actually Limited the same contrary to and different from the Common Line of Succession Nay by the Statute of the 13 Eliz. Cap 13. It is expresly Enacted That if any Person shall in any wise hold and affirm or maintain that the Queen with and by the Parliament of England is not able to make Laws and Statutes of sufficient force and validity to Limit and bind the Crown of this Realm and the Descent Limitation Inheritance and Government thereof or that this present Statute or any part thereof or any other Statute to be made by the Authority of the Parliament of England with the Royal Assent for Limiting the Crown is not are not or shall not or ought not to be for ever of good and sufficient Force and validity to bind limit restrain and Govern all Persons their Rights and Titles that in any wise may or might claim any Interest or Possibility in or to the Crown of England in Possession Remainder Inheritance Succession or otherwise howsoever and all other Persons whatsoever every Person so holding affirming or maintaining during the Life of the Queen shall be adjudged an high Traitor and suffer and forfeit as in Casts of High Treason is accustomed and every Person so holding affirming or maintaining after the dâ—câ—ase of our said Sovereign Lady shall forfeit all 〈◊〉 Good and Chattels Which Clause and last mentioned Penalty is to this Day in force and ought to be considered by any who shall now pretend that an Act of Parliament cannot dispose of the Succession As for the Right of making War and Peace the same is gramted to be part of the High Prerogatives of our Kings yet the wisest of our Monarchs have very rarely entred into any War without the 〈◊〉 〈◊〉 Parliaments for 1. Who could give them better Counsel in such a difficult Affair 2. The People would more readily expose their Persons in such a War the Justice and Expediency whereof was approved by their Representatives 3. The King from thence might more certainly promise himself supplies of Money to carry on the same But nothing is more properly the work of a Parliament than to redress Grievances To take notice of Monopolies and oppressions to Curb the Exorbitances of pernicious Favourites and ill Ministers of State To punish such mighty Delinquents as look upon themselves too big for the ordinary reach of Justice to inspect the Conduct of such as are intrusted with Administration of the Laws or disposal of the publick Treasure of the Nation All Crimes of these and the like kinds are publick Nusances common mischiefs and wound the whole Body politick in a vital part and can scarce at all be sound out or Redressed by reason of the power and Influence of the Offenders but in this great and awful Senate before whom the haughtiest Criminals tremble and it has been observed that they scarce ever Prosecuted any though never so
betwixt the said Sheriffs and the said Chusers so to be made 5 and every Sheriff of the Realm of England shall have power by the said authority to examine upon the Evangelists every such Chuser how much he may expend by the year 6 and if any Sheriff returned Knights to come to the Parliament contrary to the said Ordinance the Justices of Assizes in their Sessions of Assizes shall have power by the authority aforesaid thereof to enquire 7 and if by inquest the same be found before the Justices and the Sheriff thereof be duly attainted that then the said Sheriff shall incur the pain of an hundred pounds to be paid to our Lord the King and also that he have Imprisonment by a year without being let to mainprise or bail 8 and that the Knights for the Parliament returned contrary to the said Ordinance shall lose their wages Provided always that he which cannot expend forty Shillings by year as afore is said shall in no wise be Chuser of the Knights for the Parliament 2 and that in every Writ that shall hereafter go forth to the Sheriffs to chuse knights for the Parliament mention be made of the said Ordinances Note Though this Statute make the penalty on a Sheriff but 100 l. for a false Return yet the House may further punish him by Imprisonment c. at their pleasure by the Law and Custom of Parliaments We shall now proceed to certain excellent Laws of a latter Date made for the explanation and conservation of our Liberties and in the first place present you with that excellent Petition of Right granted by King Charles the first Anno Regni Caroli Regis Tertio The PETITION exhibited to His Majesty by the Lords Spiritual and Temporal and Commons in this present Parliament assembled concerning diverse Rights and Liberties of the Subjects To the Kings most excellent Majesty HUmbly shew unto our Soveraign Lord the King the Lords Spiritual and Temporal and Commons in Parliament assembled That whereas it is declared and enacted by a Statute made in the time of the Reign of King Edward the first commonly called Statutum de Tallagio non Concedendo that no Tallage or Aid shall be laid or Levyed by the King or his Heirs in this Realm without the good Will and Assent of the Arch-bishops Bishops Earles Barons Knights Burgesses and other the Freemen of the Commonalty of this Realm 2 and by authority of Parliament holden in the five and twentieth year of the Reign of King Edward the third it is declared and Enacted that from thenceforth no person should be Compelled to make any Loans to the King against his Will because such Loans were against Reason and the Franchise of the Land 3 And by other Laws of the Realm it is provided that none should be Charged by any Charges or Imposition called a Benevolence nor by such like Charge 4 By which the Statute before mentioned and othe the good Laws and Statutes of this Realm your Subjects have Inherited this Freedom that they should not be Compelled to Contribute to any Tax Tallage Aid or other like Charge not set by Common Consent in Parliament 2. Yet nevertheless of late divers Commissions directed to sundry Commissioners in several Counties with Instructions have Issued by means whereof your people have been in divers places Assembled and required to lend certain Sums of Money unto your Mejesty and many of them upon their refusal so to do have had an Oath administred unto them not warrantable by the Laws or Statutes of this Realm and have been Constrained to become bound to make Appearance and Attendance before your Privy Council and in other places and others of them have been therefore Imprisoned Confined and sundry other ways molested and disquieted 2 and divers other Charges have been laid and levyed upon your people in several Counties by Lord Lieutenants and Deputy Lieutenants Commissioners for Musters Justices of Peace and others by Command or direction from your Majesty to your Privy Council against the Law and free Customs of this Realm 3. And where also by the Statute called the great Charter of the Liberties of England it is declared and Enacted that no Freeman may be taken or imprisoned or be disseised of his Freehold or Liberties or of his free Customs or be outlawed or Exiled or in any manner destroyed but by the lawfull Judgment of his Peers or by the Law of the Land 4. And in the eight and twentieth year of the Reign of King Edward the third it was declared and Enacted by Authority of Parliament that no man of what Estate or Condition that he be should be put out of his Land or Tenements nor taken nor Imprisoned nor disherited nor put to death without being brought to answer by due process of Law 5. Nevertheless against the tenor of the said Statutes and other the good Laws and Statutes of your Realm to that end provided diverse of your Subjects of late have been Imprisoned without any cause shewed 2 and when for their deliverance they were brought before Justices by your Majesties Writs of Habeas Corpus there to undergo and receive as the Court should order and their keepers commanded to certify the causes of their detainour no cause was certifyed but that they were detained by your Majesties special command signified by the Lords of your privy Council and yet were returned back to several prisons without being charged with any thing to which they might make answer according to the Law 6. Whereas of late great Companies of Souldiers and Mariners have been dispersed into diverse Counties of the Realm and the Inhabitants against their wills have been compelled to receive them into their Houses and there to suffer them to sojourn against the Laws and Customes of this Realm and to the great grievance and vexation of the People 7. And whereas also by authority of Parliament and in the five and twentieth year of the reign of King Edward the third it is declared and enacted that no man shall be forejudged of life and limb against the form of the great Charter and Law of the Land 2 and by the said great Charter and other the Laws and Statutes of this Your Realm no man ought to be Judged to death but by the Laws established in this your Realm either by the Customes of the Realm or by Acts of Parliament 3 And whereas no offendor of what kind soever is exempted from the proceedings to be used and punishments to be Inflicted by the Laws and Statutes of this your Realm nevertheless of late diverse Commissions under Your Majesties great Seal have Issued forth by which certain persons have been Assigned and appointed Commisioners with power and authority to proceed within the Land according to the Justice of Martial Law against such Souldiers and Mariners or other dissolute persons joining with them as should commit any Murder Robbery Felony Mutiny or other Outrage or Misdemeanour whatsoever and by such summary Course
and Order as is agreable to Martial Law and as is used in Armies in time of war to proceed to the Tryal and Condemnation of such Offeuders and them to cause to be executed and put to death according to the Law Martial 8. By Pretext whereof some of your Majesties Subjects have been by some of the said Commissioners put to death when and where if by the Laws and Statutes of the Land they had deserved death by the same Laws and Statutes also they might and by no other ought to have been Judged and Executed 9. And also sundry greivous offenders by colour thereof claiming an exemption have Escaped the punishments due to them by the Laws and Statute of this your Realm by reason that divers of your Officers and Ministers of Justice have unjustly refused or forborne to proceed against such Offenders according to the same Laws and Statutes upon pretence that the said Offenders were punishable only by Martial Law and by Authority of such Commission as aforesaid 2 which Commissions and all other of like nature are wholly and directly Contrary to the said Laws and Statutes of this your Realm 10. They do therefore humbly pray your most Excellent Maiesty that no man hereafter be compelled to make or yield any Gift Loan Benevolence Tax or such like Charge without Common consent by act of Parliament 2 and that none be called to make answer or take such oath or to give attendance or be confined or otherwise molested or disquieted concerning the same or for refusal thereof 3 and that no Freeman in any such manner as is before mentioned be Imprisoned or detained 4 And that your Majesty would be pleased to remove the said Souldiers and Mariners and that your people may not be so burthened in time to come 5 and that the foresaid Commissions for proceeding by Martial Law may be revoked and annulled and that hereafter no Commissions of like nature may Issue forth to any person or persons whatsoever to be executed as aforesaid lest by colour of them any of your Majesties Subjects be destroyed or put to death contrary to the Laws and Franchise of the Land 11. All which they most humbly pray of your most Excellent Majesty as their Rights and Liberties according to the Laws and Statutes of this Realm and that your Majestie would also vouchsafe to declare that the awards doings and proceedings to the prejudice of your people in any of the premisses shall not be drawn hereafter into Consequence or Example 2 and that your Majesty would be also graciously pleased for the further comfort and safety of your people to declare your Royal Will and Pleasure that in the things aforesaid all your Officers and Ministers shall serve you according to the Laws and Statutes of this Realm as they tender the honour of Your Majesty and the prosperity of this Kingdom Which Petition beâ—ng Read the second of June 1682. the Kings Answer was thus delivered unto it The King willeth that Right be done according to the Laws and Customs of the Realm and that the Statutes be put in due Execution that His Subjects may have no Cause to complain of any wrong or oppressions contrary to their just Rights and Liberties To the Preservation whereof he holds himself in Conscience as well obliged as of his Prerogative But this Answer not giving satisfaction the King was again Petitioned unto that he would give a full and satisfactory answer to their Petition in full Parlinment Whereupon the King in Person upon the seventh of June made this Second Answer My Lords and Gentlemen The Answer I have already given you was made with so good Deliberation and approved by the Judgment of so many Wise Men that I could not have Imagined but that it should have given you full satisfaction but to avoid all ambiguous Interpretations and to shew you that there is no doubleness in my meaning I am willing to please you in words as well as in substance read your Petition and you shall have an Answer that I am sure will please you And then causing the Petition to be read distinctly by the Clerk of the Crown the Clerk of the Parliament read the Kings Answer thereto in these words Soit Droit Fait Come est desire which is Let Right be done as is desired This Answer and the manner of Confirming this Law I have the rather recited because the Kings Answer and Circumstances relating thereunto are wholly left out in our last Printed Book of Statutes The Petition it self is so plain that there needs no Comment thereon only the Reader may observe that the things therein mentioned were the antient Rights of the people and therefore they expresly demand them of the King as their Rights and Liberties In the next place we shall add the late excellent Habeas Corpus Act because relating to the same Subject viz. The freeing of the Subject from causeless tedious and Arbitrary Imprisonments Anno Tricesimo primo Caroli Secundi Regis CHAP. II. An Act for the better securing the Liberty of the Subjest and for prevention of Imprisonments beyond Seas Comonly called the Habeas Corpus Act. I. VVHereas great delays have been used by Sheriffs Goalers and other Officers to whose Custody any of the Kings Subjects have been committed for Criminal or supposed Criminal matters in making Returns of Writs of Habeas Corpus to them directed by standing out an Alias and Pluries Habeas Corpus and sometimes more and by other shifts to avoid their yielding obedience to such Writs contrary to their duty and the known Laws of the Land whereby many of the Kings Subjects have been and hereafter may be long detained in Prison in such Cases where by Law they are Bailable to their great Charges and Vexation II. For the prevention whereof and the more speedy relief of all persons Imprisoned for any such Criminal or supposed Criminal matters 2 Be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament Assembled and by the Authority thereof That whensoever any person or persons shall bring any Habeas Corpus directed unto any Sheriff or Sheriffs Goaler Minister or other person whatsoever for any person in his or their Custody and the said Writ shall be served upon the said Officer or left at the Goal or Prison with any of the under Officers under Keepers or Deputy of the said Officers or Keepers that the said Officer or Officers his or their under Officers or Keepers or Deputies shall within three days after the service thereof as aforesaid unless the Commitment aforesaid were for Treason or Felony plainly and specially expressed in the Warrant of Commitment upon payment or tender of the Charges of bringing the said Prisoner to be Ascertained be the Judge or Court that awarded the same and Endorsed upon the said Writ not exceeding twelve pence per Mile and upon security given by his
no Man of what Estate or Condition soever he be shall be put out of his Lands or Tenements nor taken nor Imprisoned nor Dis-inherited without being brought in to Answer by due Process of Law 5. And by another Statute made in the two and fortieth year of the Reign of the said King Edward the Third it is Enacted That no Man be put to Answer without Presentment before Justices or matter of Record or by due Process and Writ Original according to the Old Law of the Land and if any thing be done to the contrary it shall be void in Law and holden for Errour 6. And by another Statute in the six and thirtieth year of the Reign of the same King Edward the Third it is amongst other things Enacted That all Pleas which shall be pleaded in any Courts before any of the King's Justices or in his other places or before any of his other Ministers or in the Courts and places of any other Lords within the Realm shall be Entred and Enrolled in Latine 7. And whereas by the Statute made in the third year of King Henry the Seventh Power is given to the Chancellor the Lord Treasurer of England for the time being and the Keeper of the Kings Privy Seal or two of them calling unto them a Bishop and a Temporal Lord of the King 's Most Honourable Council and the Two Chief Justices of the King's Bench and Common Pleas for the time being or other two Justices in their Absence to proceed as in that Act is expressed for the punishment of some particular Offences therein mentioned 8. And by the Statute made in the one and twentyeth year of King Henry the Eighth the President of the Council is Associated to joyn with the Lord Chancellour and other Judges in the said Statute of the Third of Henry the Seventh mentioned 9. But the said Judges have not kept themselves to the points limited by the said Statute but have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and to Inflict heavier punishments than by any Law is warranted 2. And forasmuch as all matters Examinable or Determinable before the said Judges or in the Court commonly called the Star-Chamber many have their proper Remedy and Address their due punishment and correction by the Common Law of the Land and in the ordinary course of Justice elsewhere 2. And forasmuch as the Reasons and Motives inducing the Erection and Continuance of that Court do now cease 3. And the Proceedings Censures and Decrees of that Court have by Experience been found to be an Intollerable Burthen to the Subject and the means to Introduce an Arbitrary Power and Government 4. And forasmuch as the Council-Table hath of late times assumed unto it self a Power to Intermeddle in Civil and matters only of private Interest between Party and Party have adventured to determin of the Estates and Liberties of the Subjects contrary to the Law of the Land and the Rights and Priviledges of the Subject by which great and manifold mischiefs and inconveniences have arisen and happened and much Incertainty by means of such proceedings hath been conceived concerning mens Rights and Estates for settling whereof and preventing the like in time to come 3. Be it Ordained and Enacted by the Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Jurisdiction Power and Authority belonging unto or Exercised in the same Court or by any the Judges Officers or Ministers thereof be from the first day of August in the Year of our Lord God one thousand six hundred forty and one clearly and absolutely dissolved taken away and determined 2. And that from the said first day of August neither the Lord Chancellour or Keeper of the Great Seal of England the Lord Treasurer of England the Keeper of the Kings privy Seal or President of the Council nor any Bishop Temporal Lord privy Councellour or Judge or Justice whatsoever shall have any power or Authority to hear examine or determine any matter or thing whatsoever in the said Court commonly called the Star-Chamber or to make pronounce or deliver any Judgment Sentence Order or Decree or to do any Judicial or Ministerial Act in the said Court 3. And that all and every Act and Acts of Parliament and all and every Article clause and Sentence in them and every of them by which any Jurisdiction Power or Authority is given Limited or appointed unto the said Court commonly called the Star-Chamber or unto all or any the Judges Officers or Ministers thereof or for any Proceedings to be had or made in the said Court or for any matter or thing to be drawn into question Examined or determined there shall for so much as concerneth the said Court of Star-Chamber and the power and Authority thereby Given unto it be from the said first day of August Repealed and Absolutely Revoked and made void 4. And be it likewise Enacted That the like Jurisdiction now used and Exercised in the Court before the President and Council in the Marches of Wales 2. and also in the Court before the President and Council Established in the Northern parts 3. and also in the Court commonly called the Court of the Dutchy of Lancaster held before the Chancellour and Council of that Court 4. And also in the Court of Exchequer of the County Palatine of Chester held before the Chamberlain and Council of that Court 5. The like Jurisdiction being Exercised there shall from the said first day of August one thousand six hundred forty and one be also Repealed and Absolutely Revoked and made void any Law prescription Custom or Usage or the said statute made in the third year of King Henry the Seventh or the statute made the one and twentieth of Henry the Eighth or any Act or Acts of Parliament heretofore had or made to the Contrary thereof in any wise notwithstanding 6. And that from henceforth no Court Council or place of Judicature shall be Erected Ordained constituted or appointed within this Realm of England or Dominion of Wales which shall have use or Exercise the same or the like Jurisdiction as is or hath been used practised or Exercised in the said Court of Star-Chamber 5. Be it likewise declared and Enacted by Authority of this present Parliament That neither His Majesty nor his Privy Council have or ought to have any Jurisdiction Power or Authority by English Bill Petition Articles Libel or any other Arbitrary way whatsoever to Examine or draw into question determine or dispose of the Lands Tenements Hereditaments goods or Chattels of any of the Subjects of this Kingdom but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of the Law 6. And be it further provided and Enacted That If any Lord Chancellor or Keeper of the Great Seal of England Lord Treasurer Keeper of the Kings Privy Seal President
English Liberties Or The Free-Born SUBJECT's Inheritance CONTAINING I. MAGNA CHARTA The Petition of Right The Habeas Corpus Act and divers other most Vseful Statutes With Large COMMENTS upon each of them II. The Proceedings in Appeals of Murther The Work and Power of Parliaments The Qualifications necessary for such as should be chosen to that great Trust Plain Directions for all Persons concerned in Ecclesiastical Courts and how to prevent or take off the Writ De Excommunicato Capiendo As also the Oath and Duty of Grand and Petty Juries III. All the Laws against Conventicles and Protestant Dissenters with Notes and Directions both to Constables and others concern'd thereupon And an Abstract of all the Laws against Papists LONDON Printed by G. Larkin for Benjamin Harris at the Stationers Arms and Anchor in the Piazza under the Royal-Exchange A TABLE OF Some of the most Material Contents THe Nature and Happiness of our English Government from page 1. to p. 5. Magna Charta faithfully Recited p. 6 to p. 19. A Comment upon Magna Charta p. 19. to p. 30. 'T is but a Declaration of what the people had right to before p. 19. The occasion and means of obtaining Magna Charta p. 20. Ill Council perswade King Hen 3. to Revoke Magna Charta and the sad end of that wicked Counsellour p. 21. Liberties what p. 24. Monopolies are against Magna Charta p. 25. The King cannot send any man out of England against his will p. 25. Peers what p. 26. Commitment The necessary circumstances where Legal p. 27. Justice it s three properties p. 28. Judges are to obey no Commands from the King though under the Great or Privy Seal much less signified by any little whispering Courtier against Law p. 28. Protection when unlawful p. 29. The Statute of Confirmation of the Charter p. 31 A Solemn Curfe of the Clergy against the Breakers of the Charter p. 33. Another Curse to the same purpose p. 34 The Statute de Tallageo non Concedendo That the King shall lay no Burthens on his people but by their Consent in Parliament p. 36. A Comment thereupon p. 38. to p. 40. There are Omissions and Errors in the Common Printed Statute-Books p. 40. The Stat. cf 25. Edw. 3. declaring what Offences shall be Treason p. 40. A Comment thereupon p. 43. to p. 50. To Compass the Death of the King what p. 44. A Colateral Heir to the Crown is not within this Statute p. 45. Probably Attaint an Errour in the Statute-Book for provably Attaint p. 45. Offences made Treason since this Statute p. 50. The Stat. 13. Car. 2. cap. 1. for safety of His Majesties Person c. p. 51 Notes thereupon p. 57. to 63. There must be two not only Lawful but Credible Witnesses on this Statute p. 58. and 59. Within what time the Party must be question'd and Indicted p. 60. The Sentence or Judgment in High Treason and the signification of each Branch thereof p. 61. The King cannot allow a Lord Convict of Felony the favour of being Beheaded p. 62. Challenge what and to how many p. 62. The Statute 2. Edw. 3. cap. 2. In what Cases only the King shall grant Pardons p. 63. The Comment thereon p. 64. The nature form and proceedings in Case of Appeals of Murder c. Particularly opened to the meanest Capacity from p. 67 to p. 74. Two Statutes That a Parliament shall be holden once every year p. 75. The Comment p. 75. The Act of the 16th Car. 2. that holding of Parliaments shall not be discontinued above three years at the most p. 76. A not able Discourse of the Antiquity use and power of PARLIAMENTS and the Qualifications of such Gentlemen as are fit to be Chosen the peoples Representatives p. 77. to p. 110. Parliament the signification of the word p. 78. City what and how it differs from a Burrough p. 79. Three Estates what the Bishops none of them p. 80. The Parliament has Right to order the Succession to the Crown and he forfeits all his Goods and Chattels that denies it p. 82. and 84. The particular Business of Parliaments p. 83. To punish ill Favourites and Corrupt Ministers of State p. 85. Examples of great Offenders punisht Committed degraded and sentenced by Parliament and particularly some Parsons for Pragmatical Preaching p. 85. to 92 Reflections on State-Divines p. 93. The Mischiefs of felling Voices for Parliament-men for Liquor p. 95. Directions touching Choice of Members in 10 Negative Descriptions who are not fit to be Elected p. 98. to 106. The Characters of such as deserve this great trust in five particulars p. 110. The Stat. of 8. Hen. 6. cap. 7. That only Freeholders should Chuse Knights of the Shire p. 107. 110. The Petition of Right 3. Car. 1. And the Kings Assent thereunto left out in the Statute-Book p. 112. The Habeas Corpus Act 31 Car. 2. cap. 2. p. 117. The Comment thereupon p. 128. An Act for the Benefit of Prisoners for Debt that they shall not be lodged with Felons c. p. 131 An Act for regulating the Privy Council and taking away the Star-Chamber 17. Car. 1. cap. 10. p. 135. Some Notes thereupon p. 144. The Clause of the Act of 31. Car. 2. cap. 1. No man shall be bound to Quarter Souldiers p. 145. The Act touching the Writ de Excommunicato Capiendo 5. Eliz. cap. 23. p. 146. A Comment with a discourse of Excommunication directions how to manage your defence in all Cases in the Bishops Courts and how to prevent or take off the Writ de Excomunicato Capiendo p. 154 to p. 170. Church-Wardens not bound to take any Oath in the Bishops Courts to present p. 170. A Discourse touching the Laws made or endeavoured to be Executed against Protestant Dissenters p. 171. The Acts 1. Eliz. cap. 2. the 23. Eliz. cap. 1. The 29 Eliz. cap. 6. 1 Jac. cap. 4. and 3 Jac. cap. 4. were all made against Papists only and ought not to be Extended against Protestant Dissenters p. 171. to p. 177. Two new Holy days made in the Church of England since His Majesties Restauration p. 173. The opinion of the House of Commons That Acts made against Popish Recusants ought not to be extended against Protestant Dissenters p. 178. The Act of 35 Eliz. cap. 1. Considered 'T is plain from thence that the Acts made against Popish Recusants ought not to affect Sectaries p. 180. The said Act of 35 Eliz. proved to be long since expired p. 181. As also that of the 16th Car. cap 4. Intituled An Act to prevent and suppress seditious Conventicles p. 182. The Oxford or Five Mile Act 17 Car. 2. p. 183. Notes thereupon p. 187. The Act of the 22th Car. 2. cap. 1. To prevent and suppress seditious Conventicles p. 188. Notes upon that Act p. 197. An Abstract of the several Laws in Force against Popery and Papists p. 200. to p. 204. A Discourse of Juries and the Advantages English men enjoy
no new Laws bind the People of England but such as are by common consent agreed on in that great Council By the second He has a share in the Executive part of the Law no Causes being Tryed nor any man Adjudged to lose Life Member or Estate but upon the Verdict of his Peers or Equals his Neighbours and of his own Condition these two Grand Pillars of English Liberty are the Fundamental Vital Priviledges whereby we have been and are preserv'd more free and happy than any other People in the World and we trust shall ever continue so For whoever shall design to Impair Pervert or Undermine either of these do strike at the very Conisttution of our Government and ought to be Prosecuted and Punished with the utmost Zeal and Rigour To cut down the Banks and let in the Sea or to Poyson all the Springs and Rivers in the Kingdom could not be a greater Mischief for this would only affect the present Age but the other will Ruine and Enslave all our Posterity But besides these General Paramount Priviledges which the English are Estated in by the Original Constitution of their Government there are others more particularly declared and expressed in diverse Acts of Parliament of which several of the most remarkable and usefull are here presented at large to the Reader with some Notes thereupon for his better understanding of the same MAGNA CHARTA or the Great Charter made in the ninth Year of King Henry the Third and confirmed by King Edward the First in the eight and twentieth Year of his Reign EDward By the Grace of God King of England Lord of Ireland and Duke of Guyan To all Arch-Bishops Bishops c. We have seen the great Charter of the Lord Henry sometimes King of England our Father of the Liberties of England in these Words HEnry By the Grace of God King of England Lord of Ireland Duke of Normandy and Guyan and Earl of Anjou To all Arch-Bishops Bishops Abbots Priors Earls Barons Sheriffs Provosts Officers and to all Baysliffs and other our Faithful Subjects which shall see this present Charter Greeting Know you that We unto the Honour of Almighty God and for the Salvation of the Souls of our Progenitors and Successors Kings of England to the Advancement of Holy Church and Amendment of our Realm of our meer and free Will have Given and Granted to all Arch-Bishops Bishops Abbots Priors Earls Barons and to all Free-men of this our Realm these Liberties following to be kept in our Kingdom of England for ever CHAP. I. A Confirmation of Liberties FIrst We have granted to God and by this our present Charter have confirm'd for Us our Heirs for ever That the Church of England shall be free and shall have all her whole Rights and Liberties Inviolable 2 We have granted also and given to all the Free-men of our Realm for Us and our Heirs for ever these Liberties under-written to have and to hold to them and their Heirs for ever CHAP. II. The Relief of the Kings Tenant of full Age. IF any of our Earls or Barons or any other which Hold of Us in Chief by Knights Service dye and at the time of his Death his Heir be of full Age and oweth to us Relief he shall have his Inheritance by the old Relief that is to say the Heir or Heirs of an Earl for a whole Earldom by one hundred pound the Heir or Heirs of a Baron for an whole Barony by one hundred marks the Heir or Heirs of a Knight for one whole Knights Fee one hundred shillings at the most And he that hath less shall give less according to the old Custom of the Fees CHAP. III. The Wardship of an Heir within Age The Heir a Knight BUt if the Heir of any such be within Age his Lord shall not have the Ward of him nor of his Land before that he hath taken of him Homage 2. And after that such an Heir hath been in Ward when he is come to full Age that is to say to the Age of one and twenty Years he shall have his Inheritance without Relief and without time so that if such an Heir being within Age be made Knight yet nevertheless his Land shall remain in the keeping of his Lord unto the Term aforesaid CHAP. IV. No wast shall be made by a Guardian in Wards Lands THE Keeper of the Land of such an Heir being within Age shall not take of the Lands of the Heir but reasonable Issues reasonable Customs and Reasonable Services and that without destruction and waste of his Men and his Goods 2. And if we commit the Custody of any such Land to the Sheriff or to any other which is answerable unto us for the Issues of the same Land and he make destruction or waste of those things that he hath in Custody we will take of him amends and recompence therefore 3. And the Land shall be committed to two lawful and discreet men of that Fee which shall answer unto Us for the Issues of the same Land or unto him whom we will Assign 4. And if we give or sell to any man the Custody of any such Land and he therein do make destruction or waste he shall lose the same Custody And it shall be Assigned to two lawful and discreet men of that Fee which also in like manner shall be answerable to Us as afore is said CHAP. V. Guardians shall maintain the Inheritance of their Wards And of Bishopricks THe Keeper so long as he hath the Custody of the Land of such an Heir shall keep up the Houses Parks Warrens Ponds Mills and other things pertaining to the same Land with the Issues of the said Land And he shall deliver to the Heir when he cometh to his full Age all his Land stored with Ploughs and all other things at the least as he receiv'd it All these things shall be observed in the Custody of Arch-Bishopricks Bishopricks Abbeys Priories Churches and Dignities vacant which appertain to Us Except this that such Custody shall not be sold CHAP. VI. Heirs shall be Married without Disparagement HEirs shall be Married without Disparagement CHAP. VII A Widow shall have her Marriage Inheritance and Quarentine The Kings Widow A Widow after the Death of her Husband Incontinent and without any difficulty shall have her Marriage and her Inheritance 2. And shall give nothing for her Dower her Marriage or her Inheritance which her Husband and She held the day of the Death of her Husband 3. And She shall tarry in the chief House of her Husband by forty days after the Death of her Husband within which days her Dower shall be Assigned her if it were not Assigned her before or that the House be a Castle 4. And if she depart from the Castle then a competent House shall be forthwith provided for her in the which She may honestly dwell until her Dower be to her Assigned as it is aforesaid And She shall have in the
c. Deserves to be written in Letters of Gold and I have often wondered the words thereof are not Inscribed in Capitals on all our Courts of Judicature Town-Halls and most publick Edifices they are the Elixir of our English Freedoms the Storehouse of all our Liberties And because my Lord Cook in the second part of his Institutes has many excellent Observations I shall here Recite his very words This Chapter containeth nine several Branches 1. That no man be taken or Imprisoned but per Legem terrae that is by the Common Law Statute-Law or Custome of England For these words per Legem terrae being towards the end of this Chapter do Refer to all the precedent matters in this Chapter and this hath the first place because the Liberty of a mans person is more pretious to him than all the rest that follow and therefore it is great reason that he should by Law be Relieved therein if he be wronged as hereafter shall be shewed 2. No man shall be Disseised that is put out of Seisin or dispossessed of his Free-hold that is Lands or Livelyhood or of his Liberties or free Customs that is of such Franchises and Freedoms and free Customs as belong to him by his Free Birth-Right unless it be by the lawful Judgment that is Verdict of his equals that is of men of his own Condition or by the Law of the Land that is to speak it once for all by the due Course and process of Law 3. No man shall be Outlawed made an Exlex put out of the Law that is deprived of the Benefit of the Law unless he be Outlawed according to the Law of the Land 4. No man shall be Exiled or Banished out of his Countrey that is Nemo perdet patriam no man shall lose his Countrey unless he be Exiled according to the Law of the Land 5. No man shall in any sort be destroyed Destruere id est quod prius structum factum fuit penitus Evertere Diruere unless it be by the Verdict of his Equals or according to the Law of the Land 6. No man shall be Condemned at the Kings Suit either before the King in his Bench where the Pleas are Coram Rege and so are the words Nec super eum ibimus to be understood nor before any other Commissioner or Judge whatsoever and so are the words Nec super eum mittimus to be understood but by the Judgment of his Peers that is Equals or according to the Law of the Land 7. We shall sell to no man Justice or Right 8. We shall deny to no man Justice or Right 9. We shall defer to no man Justice or Right Each of these we shall briefly explain 1. No man shall be taken that is Restrained of Liberty by Petition or Suggestion to the King or his Council unless it be by Indictment or Presentment of good and lawful men where such deeds be done This Branch and divers other parts of this Act have been notably explained and Construed by divers Acts of Parliament several of which you will find Recited hereafter in this Book 2. No man shall be Disseised c. Hereby is intended that Lands Tenements Goods and Chattels shall not be seised into the Kings Hands contrary to this great Charter and the Law of the Land nor any man shall be disseised of his Lands or Tenements or dispossessed of his Goods or Chattels contrary to the Law of the Land A Custom was alleadged in the Town of C. that if the Tenant cease by two years that the Lord should enter into the Freehold of the Tenant and hold the same until he were satisfied of the Arrearages it was adjudged a Custom against the Law of the Land to enter into a Mans Freehold in that case without Action or Answer King Henry 6. Granted to the Corporation of Diers within London power to search c. And if they found any Cloath died with Log-Wood that the Cloath should be Forfeit And it was adjuged that this Charter concerning the Forfeiture was against the Law of the Land and this Statute For no Forfeiture can grow by Letters Patents No Man ought to be put from his Livelihood without Answer 3. No Man Outlawed That is barred to have the benefit of the Law And note to this word Outlawed these words Vnless by the Law of the Land do Referr Of his Liberties This word hath three Significations 1. As it hath been said it signifieth the Laws of the Realm in which respect this Charter is called Charta Libertatum as aforesaid 2. It signifieth the Freedom the Subjects of England have for example the Company of Merchant-Taylors of England having power by their Charter to make Ordinances made an Ordinance that every Brother of the same Society should put the one half of his Cloaths to be dressed by some Cloath-Workers Free of the same Company upon pain to Forfeit 10 s. c. And it was adjuged that this Ordinance was against Law because it was against the Liberty of the Subject for every Subject hath freedom to put his Cloaths to be dressed by whom he will sic de similibus And so it is if such or the like grant had been made by his Letters Patents 3. Liberties signifie the Franchises and Priviledges which the Subjects have of the gift of the King as the Goods and Chattels of Felons Out-laws and the like or which the Subject claims by Prescription as wreck waife straie and the like So likewise and for the same reason if a Grant be made to any Man to have the Sole making of Cards or the Sole dealing with any other Trade that Grant is against the Liberty and Freedom of the Subject that before did or lawfully might have used that Trade and consequently against this great Charter Generally all Monopolies are against this great Charter because they are against the Liberty and Freedom of the Subject and against the Law of the Land 4. No Man Exiled that is Banisht or forced to depart or stay out of England without his Consent By the Law of the Land no Man can be Exiled or Banished out of his Native Country but either by Authority of Parliament or in Case of Abjuration for Felony by the Common Law and so when our Books or any Record speak of Exile or Banishment other than in case of Abjuration it is to be intended to be done by Authority of Parliament as Belknap and other Judges c. Banished into Ireland in the Reign of Rich. the Second This is a Beneficial Law and is Construed benignly And therefore the King cannot send any Subject of England against his will to serve him out of this Realm for that should be an Exile and he should perdere Patriam No he cannot be sent against his will into Ireland to serve the King or his Deputy there because it is out of the Realm of England For if the King might send him out of this Realm to any
place then under pretence of Service as Ambassador or the like he might send him into the furthest part of the World which being an Exile is prohibited by this Act. 5. No Man destroyed That is forejudged of Life or Limb or put to Torture or Death every oppression against Law by colour of any usurped Authority is a kind of destruction And the words Aliquo modo any otherwise are added to this Verb destroyed and to no other Verb in this Chapter and therefore all things by any manner of means tending to destruction are prohibited as if a Man be accused or Indicted of Treason or Felony his Lands or Goods cannot be granted to any no not so much as by promise nor any of his Lands or Goods seized into the Kings hands before he is Attainted For when a Subject obtaineth a promise of the forfeiture many times undue means and more violent prosecution is used for private Lucre tending to destruction than the quiet and just proceeding of the Law would permit and the party ought to live of his own until Attainder 6. By Lawful Judgment of his Peers That is by his Equals Men of his own Rank and Condition The general division of Persons by the Law of England is either one that is Noble and in respect of his Nobility of the Lords House of Parliament or one of the Commons and in respect thereof of the House of Commons in Parliament And as there be divers degrees of Nobility as Dukes Marquesses Earls Viscounts and Barons and yet all of them are comprehended under this word Peers and are Peers of the Realm so of the Commons there be Knights Esquires Gentlemen Citizens and Yeomen and yet all of them of the Commons of the Realm And as every of the Nobles is one a Peer to another though he be of a several degree so it is of the Commons and as it hath been said of Men so doth it hold of Noble Women either by Birth or Marriage And forasmuch as this Judgment by Peers is called Lawful it shews the Antiquity of this manner of Trial It was the ancient accustomed Legal Course long before this Charter Or by the Law of the Land That is by due process of Law for so the words are expresly expounded by the Stat. of 37 Edw. 3. chap. 8. And these words are specially to be referred to those foregoing to whom they relate As none shall be condemn'd without a lawful Trial by his Peers so none shall be taken Imprison'd or put out of his Free-hold without due process of the Law that is by the Indictment or Presentment of good and lawful Men of the place in due manner or by Writ Original of the Common-Law Now seeing that no Man can be Taken Arrested Attached or Imprisoned but by due process of Law and according to the Law of the Land these conclusions hereupon do follow 1. That the Person or Persons which commit any must have lawful Authority 2. It is necessary that the Warrant or Mittimus be lawful and that must be in Writing under his Hand and Seal 3. The Cause must be contained in the Warrant as for Treason Felony c. Suspicion of Treason or Felony or the like particular Crime For if it do not thus specifie the Cause if the Prisoner bring his Habeas Corpus he must be discharged because no Crime appears on the Return Nor is it in such Case any offence at all if the Prisoner make his escape whereas if the Mittimus contain the Cause the escape would respectively be Treason or Felony though in Truth he were not Guilty of the first offence And this mentioning the Cause is agreeable to Scripture Acts 5. 4. The Warrant or Mittimus containing a lawful Cause ought to have a lawful conclusion c. And him safely to keep until he be delivered by Law c. and not until the party committing shall further Order If any Man by colour of any Authority where he hath not any in that particular Case shall presume to Arrest or Imprison any Man or cause him to be Arrested or Imprisoned this is against this Act and it is most hateful when it is done by Countenance of Justice King Edw. the 6th did Incorporate the Town of Saint Albans and granted to them to make Ordinances c. They made a by-Law upon pain of Imprisonment and it was adjudged to be against this Statute of Magna Charta so it had been if such an Ordinance had been contained in the Patent it self We will sell to no Man deny to no Man c. This is spoken in the Person of the King who in Judgment of Law in all his Courts of Justice is present And therefore every Subject of this Realm for injury done to him in Bonis Terris vel Persona in Person Lands or Goods by any other Subject Ecclesiastical or Temporal whatever he be without exception may take his Remedy by the course of the Law and have Justice and Right for the Injury done him Freely without sale Fully without any denial and Speedily without delay For Justice must have three Qualities it must be Libera Free for nothing is more odious than Justice set to sale Plena Full for Justice ought not to limp or be granted Piece-meal and Celeris speedy Quia Dilatio est quaedam negatio Delay is a kind of denial And when all these meet it is both Justice and Right We will not deny nor delay any Man c. These words have been excellently expounded by latter Acts of Parliament that by no means common right or common law should be disturbed or delayed no though it be commanded under the Great Seal or Privy Seal Order Writ Letters Message or Commandment whatsoever either from the King or any other and that the Justices shall proceed as if no such Writs Letters Order Message or other Commandment were come to them all our Judges swear to this for 't is part of their Oaths so that if any shall be found wresting the Law to serve a Court Turn they are perjur'd as well as unjust The Common-laws of the Realm should by no means be delayed for the Law is the surest Sanctuary that a Man can take and the strongest Fortress to protect the weakest of all Lex est tutissima Cassis the Law is a most safe Head-piece and sub Clipeo legis nemo decipitur no man is deceived whilst the Law is his Buckler but the King may stay his own suit as a Capias pro fine for the King may Respit his Fine and the like All Protections that are not Legal which appear not in the Register nor warranted by our Books are expresly against this Branch nulli diffâ—remus we will not delay any Man As a Protection under the Great Seal granted to any Man directed to the Sheriffs c. and commanding them that they shall not Arrest him during a certain time at any other Mans suit which hath words in it Per Prerogativâ—m nostram
or make payment in deceit of our said Lord the King and of his People 7. And if a Man Slay the Chancellor Treasurer or the Kings Justice of the one Bench or the other Justices in Eyre or Justices of Assize and all other Justices Assigned to Hear and Determine being in their Places doing their Offices 8. And it is to be understood that in the Cases above rehearsed that ought to be judged Treason which extends to our Lord the King and of his Royal Majesty 9. And of such Treason the Forfeiture of the Escheats pertaineth to our Lord as well of the Lands and Tenement holden of other as of himself 10. And moreover there is another manner of Treason that is to say when a Servant slayeth his Master or a Wife her Husband or when a Man Secular or Religious slayeth his Prelate to whom he oweth Faith and Obedience 11. And of such Treason the Escheats cught to pertain to every Lord of his own Fee 12. And because that many other like Cases of Treason may happen in time to come which a man cannot think nor declare at this present time it is Accorded That if any other Case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without any going to Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be judged Treason or other Felony 13. And if percase any Man of this Realm Ride Armed covertly or secret with Men of Arms against any other to Slay him or Rob him or Take him or Retain him till he hath made Fine or Ransome for to have his deliverance it is not the mind of the King nor his Council that in such Case it shall be judged Treason but shall be judged Felony or Trespass according to the Laws of the Land of old time used and according as the Case requireth 14. And if in such Case or other like before this time any Justices have judged Treason and for this cause the Lands and Tenements have come into the Kings hands as forfeit the chief Lords of the Fee shall have the Escheats of the Tenements holden of them whether that the same Tenements be in the Kings hands or in others by Gift or in other manner 15. Saving always to our Lord the King the Year and the Waste and the sorfeitures of Chattels which pertain to him in the Cases above named 16. And that the Writs of Scire Facias be granted in such Case against the Land-Tenants without other Original and without allowing any Protection in the said Suit 17. And that of the Lands which be in the Kings hands Writs be granted to the Sheriffs of the Counties where the Lands be to deliver them out of the Kings hands without delay The Comment TReason is derived from Trabir which signifies Treacherously to betray when it concerns the Government and the Publick 't is called High Treason but against particular Persons as a Wife killing her Husband a Servant his Master c. it is Petty Treason High Treason in the Civil Law is called Crimen Laesae Majestatis a Crime wronging Majesty but in our Common-Law-Latine Alta proditio and in an Indictment for this offence the word Proditorie must be in Before the making this Act so many things were charged as High Treason That no Man knew how to behave himself Now by this Statute the particulars of that Grand Crime are reckoned up and all others excluded till declared by Parliament And the settling of this Affair was esteemed of such Importance to the Publick-Weal That the Parliament wherein this Act passed was called long after Benedictum Parliamentum the Blessed Parliament The substance of this Statute is branched out by my Lord Cook 3d. part of Instit. Fol. 3. into six Heads viz. The first concerning Death by compassing or imagining the death of the King Queen or Prince and declaring the same by some Overt Deed. By killing and murdering of the Chancellor Treasurer Justices of either Bench Justices in Eyre Justices of Assize Justices of Oier and Terminer In their Places doing their Offices The second is to Violate that is to Carnally know the Queen the Kings Eldest Daughter unmarried the Princes Wife The third is Levying War against the King The fourth is Adhering to the Kings Enemies within the Realm or without and declaring the same by some overt Act. The fifth is Counterfeiting of the Great the Privy Seal or the Kings Coin The sixth and last by bringing into this Realm Counterfeit Mony to the likeness of the Kings Coin Now as to the particular Exposition of the several parts of this Statute 1. When a man doth compass c. in the Original it is Quant Home which extends to both Sexes but one that is Non compos mentis or an Infant within the Age of discretion is not included but all Allens within the Realm of England being thereby under the Kings Protection and owing a Local Allegiance if they commit Treason may be punisht by this Act but otherwise it is of an Enemy 2. To compass and Imagine Is to contrive design or intend the death of the King but this must be declared by some Overt Act. But declaring by an open Act a design to Depose or Imprison the King is an Over Act to manifest the compassing his death For they that will depose their King will not stick to Murder him rather than fail of their end and as King Charles the First excellently observed and lamentably experienced There are commonly but few steps between the Prisons and the Graves of Princes 3. By the word King is intended 1. A King before his Coronation as soon as ever the Crown descends upon him for the Coronation is but a Ceremony 2. A King de Facto and not de Jure is a King within this Act and a Treason against him is punishable thô the Right Heir get the Crown 3. A Titular King as the Husband of the Queen is not a King within this Act but the Queen is for the word King here includes both Sexes 4. What is to be understood by the Kings Eldest Son and Heir within this Act I answer 1. A second Son after the death of the first Born is within the Act for he is then Eldest Secondly The Eldest Son of a Queen Regnant is as well within the Statute as of a King Thirdly The Collateral Heir Apparent or Presumptive is not within this Statute Roger Mortimer Earl of March was in Anno Dom. 1487. 11 Rich. 2. Proclaimed Heir Apparent Anno 39. Hen. 6. Richard Duke of York was likewise Proclaimed Heir Apparent and so was John de la Poolen Earl of Lincoln by Rich. 3. And Henry Marquess of Exeter by King Henry the 8. But none of these or the like are within the Purview of this Statute saith my Lord Coke 3 Instit fol. 9. 5. Note Whereas in the Printed Statute-Books it is there
Speech and all other Privledges whatsoever as they had before the making of this Act any thing in this Act to the contrary thereof in any wise notwithstanding 7. Provided always and be it ordained and enacted That no Peer of this Realm shall be Tryed for any Offences against this Act but by his Peers 2. And further that every Peer who shall be Convicted of any Offence against this Act after such Conviction be disabled during his Life to sit in Parliament unless His Majesty shall graciously be pleased to pardon him 3 And if His Majesty shall grant his Pardon to any Peer of this Realm or Commoner Convicted of any Offence against this Act after such Pardon Granted the Peer or Commoner so pardoned shall be Restored to all Intents and purposes as if he had never been Convicted any thing in this Law to the contrary in any wise uotwithstanding Notes THough the wisdom of our Legislators is not generally for bringing words within the compass of Treason yet upon emergent occasions it has been done but then with a Temporary Limitation as by the Statute 13. Eliz. here referred unto during the Life of that Queen In imitation whereof this present Act is made to remain in force during only the Life of our present Soveraign King Charles the Second And the reasons for making this Temporary Law are assigned in the preamble This Statute makes three sorts of Offences Some High Treason some that disable and in capacitate from holding any place or Office and some that are punishable by Premunire As to the first 't is hereby declared to be High Treason during the Life of his present Majesty 1. Within or without the Realm to compass or in tend the Death Destruction Maim Wounding Imprisonment or Restraint of the King 2. Or to deprive or depose him or Levy War against him within the Realm or without to stir up Forreigners to invade the Realm If such Compassings or Intentions be expressed uttered or declared by any Printing Writing Preaching or malitious and advised speaking Being legally Convicted thereof upon the Oaths of two lawful and CREDIBLE Witnesses By which words the Statute seems to injoin and require some more than Ordinary Scrutiny into the Credit of the Witnesses for otherwise Legal had been enough and so is every man not Convict of Perjury but Witnesses in this Case must not be only Legal but Credible not infamous scandalous or suspected As to the second Maliciously and advisedly to publish or affirm during his present Majesties Life that the King is an Heretick or a Papist or that he endeavours to introduce Popery Or maliciously and advisedly by Writing Printing Preaching or speaking to utter express or declare any Words Sentences or thing to stir up the people to hatred or dislike of the Person of His Majesty or the establisht Government Whoever is legally Convicted of any of these Crimes shall be disabled to hold any place Office or promotion Ecclesiastical Civil or Military And besides be liable to such punishments as by the Common Laws or Statutes may be inflicted As to the third to declare publish or affirm first that the Old long Parliament of 40 is not dissolved or ought to be in being Secondly That there lies any obligation on ones-self or any other person from any Oath Covenant or Engagement to endeavour a change of Government either in Church or State Thirdly that either or both Houses of Parliament have a Legislative power without the King or any other words to the same effect The person so offending shall incur the penalty of a Premunire which by the Statute of 16 Rich. 2 Cap. 5. here referr'd unto is this viz. To be put out of the Kings Protection their Lands and Tenements goods and Chattels Forfeited to the King and their bodies to be seized c. But in this Act of the 13 Caroli there are these Proviso's 1. As for the two last Sorts of Offences that are not Treason none shall be prosecuted but by order of the King under his Sign Manual or of the privy Council 2. As for the crimes made Treasons none shall be Indicted or Convicted unless they be ACCVSED by two Lawfull and Credible Witnesses touching the Addition of the word Credible to Lawfull which is here again repeated we have spoken before But must here further observe 1. That by these express words this Statute provides that no man shall be Indicted that is have a Bill found against him upon this Statute for Treason unless he be Accused that is unless the matter be sworn against him before the Grand Jury by two not only Lawful but CREDIBLE Witnesses for the words are not only he shall not be Convicted which is the work of the Petty Jury or Jury of Life and Death as 't is commonly called But he shall not be Indicted which is the business of the Grand Jury And therefore Grand-Juries besides their general and ordinary Right and power by Law have when any person is Indicted upon this Statute a special right and direction from the Act it self to Examine and be well satisfied in the Credibility of the Witnesses which if duly considered would perhaps much mitigate the Clamours lately raised against some Juries for their Returning some Bills before them Ignoramus though the matters therein were roundly sworn unto by Legal but probably in their esteem and Judgment as they were upon their Oaths not sufficiently Credible Witnesses especially when their Stories were no less Incredible than their persons Secondly Note that as a person cannot be Convicted or Indicted so neither can he be so much as Committed for any Offence made Treason by this Act by or upon the Oaths of any single Witness though there should be never so much presumption that more may come in against him before he be brought to Trial for the words are Vnless he be thereof accused by the Testimony and deposition of Two Lawful and Credible Witnesses which Witnesses at his Arraignment shall be brought before him face to face c. So that 't is evidently intended the original accusation before the Justice or Magistrate that shall Commit the person must be by two such Witnesses and that the same two Witnesses and not others leaving them that first charged him out though yet others no doubt may be added to them must give Evidence to the Grand Jury and at â—is Trial. 3. There is in this Act a third proviso that no person shall incur any the Penalties in this Act mentioned unless 1. He be Prosecuted that is charged before a Magistrate or Committed within six Months after the Offence Committed Secondly and unless he be Indicted thereupon within three Months after such Prosecution So that if in either of these Respects the time be elapsed the Grand Jury ought not to find the Bill 4. Provided this Act shall not infringe the Priviledges or Freedom of Debates in either of the Houses of Parliament or any Committee of them 5. That a Peer
shall be tryed for any Offence against this Act by his Peers but if Convicted shall be disabled to sit in Parliament during Life And thus much for what is Treason at this day By the Statute of 1 and 2 Phil. and Mar. cap 10. All Trials for Treason shall be only according to the Course of the Common Law And though the greater part of that Statute being Temporary be expired yet this Clause is still in Force The Judgment in all Cases of High Treason except for Counterfeiting Coin for a man is That he shall be drawn on an Hurdle or Sledge to the place of Execution and there be Hanged by the Neck to be cut down being yet alive his Privy Members cut off his Bowels ript up taken out and burnt before his face his Headsevered from his Body his Body divided into four Quarters which are to be disposed of as the King shall order But for Counterfeiting Coin only Drawn and Hanged And in both Cases for a Woman for Modesty sake it is only that she shall be Burnt The reasons or signification of this horrid Judgment on a man for Treason are thus by some rendred and Interpreted 1. He is drawn on a Sledg or Hurdle on the ground in the Dirt to shew that his Pride is brought down for Treason commonly springs from Ambition 2. On this Hurdle he is drawn backward to shew that his Actings have been contrary to Order unnatural and Preposterous 3. He is Hanged between Heaven and Earth as unworthy of either 4. He is cut down yet alive and his Privities cut off to shew that he was unfit to Propagate any Posterity 5. His Head is severed from his Body because his mischevious Brain contrived the Treason 6. His Body is divided to shew that all his Machinations and Devices are torn to pieces and brought to nought and into four parts that they may be scattered towards the four Quarters of the World Heading being part of the judgment in Treason the King commonly to persons of Quality Pardons all the rest of the Sentence and so they are only Beheaded But if a person be Attainted of Murder or any other Felony if he be Beheaded 't is no Execution of the Judgment because there the Judgment always is that he be Hanged till he be dead which cannot be altered So that had Count Conning smark lately been Convicted and Condemned for the Murder of Esquire Thynn all his Guinies or his Friends could not have preserved him from the Gallows unless they could have got an intire Pardon Any person being Indicted for Treason may Challenge that is except against or refuse Five and Thirty Jurors peremptorily that is for his pleasure or for reasons best known to himself and without assigning any Cause to the Court But if he Challenge more that is above three full Juries he Forseits his Goods and Judgment of Peinfort dure that is of being pressed to Death shall pass upon him as one that refuseth the Trial of the Law In Cases of Murder and Felony a man cannot Challenge peremptorily above the number of Twenty But with Cause he may except against more And this is by the Stat. of 22. H. 8. cap. 14. And certainly since the Law of England which is a Law of Mercy does in Favour of Life not only order a man to be Tryed by a Jury of his Country and Equals but also allows him to refuse and have Liberty of excepting against so many of those as shall be Impanelled for that purpose It cannot be supposed that the same Law ever intended that the Prisoner should be denyed a Copy of the Pannel of his Jury that so by the Information of his Friends or otherwise he may know their Qualities Circumstances and Inchnations for how else shall he know whom to Challenge peremptorily and whom to Challenge with Cause to allow a man such Liberty of Challenge and give him no opportunity of such Inquiry is but to mock the Prisoner to whom possibly the whole Jury by face and name may be utter Strangers and sure the wisdom of our Laws never thought every Prisoner so skilled in Metoposcopy that meerly by looking on a parcel of men he could tell which of them were indifferent and which biassed against him Another Statute of King Edward the third Anno 2. Edw. 3. cap. 2. In what Cases only Pardon of Felony shall be granted c. ITem Whereas Offendors have been greatly encouraged because the Charters of Pardon have been so easily granted in times past of Man-slaughters Roberies Felonies and other Trespasses against the Peace 2 It is ordained and Enacted that such Charters shall not be granted but only where the King may do it by his Oath that is to say where a man slayeth another in his own Defence or by Misfortune 3 And also they have been encouraged because that the Justices of the Goal-Delivery and of Oyer and Terminer have been procured by great men against the Form of the Statute made in the 27th year of the Reign of King Edward Grandfather to our Lord the King that now is wherein is Contained that Justices Assigned to take Assizes if they be Lay-Men shall make deliverance and if the one be a Clerk and the other a Lay-man that the Lay-Judge with another of the Countrey associate to him shall deliver the Goals 4 Wherefore it is Enacted that Justices shall not be made against the Form of the said Statute 5 And that the Assizes Attaints and Certifications be taken before the Justices commonly Assigned which should be good men and Lawful having knowledg of the Law and none other after the Form if another Statute made in the time of the said King Edward the first 6 And that the Oyers and Terminers shall not be granted but before the Justices of the one Bench or the other or the Justices Errants and that great hurt or horrible Trespasses and of the Kings special Grace after the Form of the Sâ—atute thereof ordained in time of the said Grandfather and none otherwise The Comment Touching this Statute and several others to the same purpose as 14. Edw. 3. cap. 14. and 10. Edw. 3. cap. 2. and 13. R. 2. cap. 1. and 16. R. cap. 6. c. We shall only give you the words of Cook in the third part of his Instit fo 236. What things the King may pardon and in what manner and what he cannot pardon falleth now to be treated of IN case of death of man Robberies and Felonies against the Peace divers Acts of Parliament have Restrained the power of granting Charters of pardons first that no such Charters shall be granted but in case where the King may do it by his Oath Secondly That no man shall obtain Charters out of Parliament Stat. 4. Edw 3. cap 13. And accordingly in a Parliament Roll it is said for the Peace of the Land it would much help if good Justices were appointed in every County if such as be let to mainprize do put
in good Sureties as Esquires or Gentlemen And that no pardon were granted but by Parliament Thirdly For that the King hath granted Pardons of Felonies upon false Suggestions it is provided that every Charter of Felony which shall be granted at the Suggestion of any the name of him that maketh the Suggestion shall be comprised in the Charter and if the Suggestion be found untrue the Charter shall be disallowed And the like provision is made by the Statute of 5. H. 4. Cap 2. for the Pardon of an Approver Fourthly It is provided that no Charter of Pardon for Murder Treason or Rape shall be allowed c. If they be not specified in the same Charter Statute 13. R 2. Before this Statute of 13. R 2. by the Pardon of all Felonies Treason was Pardoned and so was Murder c. At this day by the Pardon of all Felonies the death of man is not Pardoned These be excellent Laws for direction and for the Peace of the Realm But it hath been conceived which we will not question that the King may dispence with these Laws by a Non Obstante notwithstanding be it General or Special albeit we find not any such Clauses of non Obstante notwithstanding to dispense with any of these Statutes but of late times These Statutes are excellent Instructions for a Religious and Prudent King to follow for in these Cases Vt summae potestatis Regiae est posse quantum velit sic Magnitudinis est velle quantum possit As it is the highest Kingly power to be able to Act what he Wills so it is his Greatness and Nobleness to Will only what he lawfully can Hereof you may Read more in Justice Standford Lib. 2. Cap. 35. in diverse places of that Chapter of his grave Advice in that behalf Most certain it is that the Word of God has set down this undisputable General Rule Quia non profetur Cito Contra malos sententia filii hominum sine timore ullo perpetrant because Sentence against evil men is not speedily Executed therefore the hearts of the Children of men are set in them to do evil And thereupon the Rule of Law is grounded Spes Impunitatis Continuum Affectum tribuit delinquendi the hope of Impunity encourageth Offenders Et veniae facilitas Incentivum est Delinquendi and the facility of obtaining Pardon is an Incentive to Commit Offences This is to be Added that the Intention of the said Act of 13. R. 2. Was not that the King should grant a Pardon of Murder by express Name in the Charter but because the whole Parliament conceived that he would neuer Pardon Murder by special Name for the Causes aforesaid therefore that provision made which was as in other Cases I have observed grounded upon the Law of God Quicunque effuderit humanum sanguinem fundetur sanguis illius ad imaginem quippe Dei creatus est homo nec aliter Expiati potest nisi per ejus sanguinem qui alterius sanguinem effuderit whosoever shall shed mans blood by man also shall his blood be shed because man was Created after the Image of God neither can it be expiated otherwise then by his blood who spilt the blood of another And the words of every Pardon is after the Recital of the offence nos pietate moti c. we being moved with Piety c. But it can be no Piety to violate an express Law of God by letting Murder scape unpunisht Thus Coke whereby we see what opinion he had of such Pardons A brief digression concerning the Nature of APPEALS THis Discourse of Pardons puts us in mind of another kind of Legal Prosecution called an Appeal of which it may be very convenient to give the Reader some brief account You must know then for several Offences for which a man deserveth death and particularly for Murder there are two ways to bring him to Answer for the same one by Indictment which is at the Kings Suit and the other by Appeal which is at the Suit of a Party which is wronged or injured by the Murder as a Woman whose Husband or a Child or Brother whose Father or Brother is Killed Now upon an Indictment if the Offender be found Guilty because it s to be at the Suit of the King it has been said by some may be and too often a Pardon has been obtained tho even That too be against Law as appears by the Premisses But in an Appeal all agree the King can grant no Pardon Nay if a person be tryed by Indictment and Acquitted or Convicted and get a Pardon yet an Appeal may be brought and if he be thereupon Convicted notwithstanding such his former Acquital or Pardon he must be Hanged The word Appeal is derived from the French Verb Appeller to Call because he or she that brings it Calls the Defendant to Judgment but the meaning thereof is all one with An Accusation And is peculiarly in Legal signification applyed to Appeals of Three sorts First an Appeal brought by an Heir Male for some wrong done to his Ancestor whose Heir he is Secondly Of wrong done to an Husband and is by the Wife only if it be for the death of her Husband to be Prosecuted The third is of wrongs done to the Appellants themselvess as for Robbery Rape or Maim Coke 1. Instit Sect. 500. Note that this Appeal must be brought within a year and a day after the Murder is committed For afterwards it cannot be brought at all And antiently it was customary not to bring an Indictment for the King till after the year and the day waiting in the mean time for the Prosecution of the Party but this was found very inconvenient for the Party was frequently compounded with and at the years end the business was forgot and so Offenders escaped Justice And therefore the same was altered by the Statute 3. Hen. 7. Cap. 1. Whereby it is Enacted That the Coroner shall do his Office and the Offenders may be Arraigned at any time within the year at the Kings Suit but if Acquitted yet the party within the year and day should have liberty to bring an Appeal against such person either Acquitted or Attainted if the benefit of the Clergy be not before thereof had And in order thereunto that when any person happened to be Acquitted for the death of a man within the year the Justices before whom he is Acquitted shall not suffer him to go at large but either to remit him again to the Prison or else to let him to Bail after their discretion till that the day and the year be passed that so he may be forth coming to Answer an Appeal if it shall happen to be brought Thus that Statute as to the latter Clause whereof you see the Judges have power in Case of Acquittal to keep the Party in Prison still till the day and year be over Or else to admit him to Bail and tho this be left to their Discretion yet it must
great or highly in favour at Court but sooner or later they hit him and it proved his Ruine Take a few examples King Edw. the second dotes upon Pierce Gaveston a French Gentleman he wastes the Kings Treasures has undeserv'd Honours conserred on him affronts the antient Nobility The Parliament in the beinning of the Kings Reign Complains of him he is banisht into Ireland The King afterwards calls him home and marries him to the Earl of Glocesters Sister the Lords complain again so effectually that the King not only consents to his second Banishment but that if ever he returned or were found in the Kingdom he should be hâ—ld and proceeded against as an Enemy to the State Yet back he comes and is received once more by the King as an Angel who carries him with him into the North and hearing the Lords were in Arms to bring the said Gaveston to Justice plants him for safety in Scarborough Castle which being taken his Head was Chopt off In King Richard the Seconds time most of the Judges of England to gratifie certain corrupt and pernicious Favourites about the King being sent for to Nottingham were by Perswasions and Menaces prevailed with to give false and Illegal Resolutions to certain questions proposed to them declaring certain matters to be Treason which in truth were not so For which in the next Parliament they were called to Account and Attainted and Sir Robert Tresilian Lord Chief Justice of England was drawn from the Tower through London to Tyburn and there Hanged As likewise was Blake one of the Kings Council and Vske the Under-Sheriff of Middlesex who was to pack a Jury to serve the present Turn against certain Innocent Lords and others whom they intended to have had taken off and five more of the Judges were Banisht and their Lands and Goods forfeited And the Archibishop of York the Duke of Ireland and the Earl of Suffolk three of the Kings Evil Councellors were forced to fly and died miserable Fugitives in Forreign Parts In the beginning of King H. the 8ths Reign Sir Richard Empson Knight Edmond Dudley one of the Barons of the Exchequer having by colour of an Act of Parliament to try People for several Offences without Juries committed great oppressions were proceeded against in Parliament and lost their Heads In the 19 Year of the Reign of King James at a Parliament holden at Westminister there were shewn saith Bakers Chron. Fo. 418. two great Examples of Justice which for future Terrour are not unfit to be here related one upon Sir Giles Mompesson a Gentleman otherwise of Good parts but for practising sundry abuses in erecting and seting up new Inns and Ale-houses and exasting great Summes of Money of people by pretence of Letters Patents granted to him for that purpose was sentenced to be degraded from his Knighthood and disabled to Bear any Office in the Common-Wealth though he avoided the Execution by Flying the Land But upon Sir Francis Mitchel a Justice of Peace of Middlesex and one of the Chief Agents the sentence of Degradation was Executed and he made to ride with his face to the Horse tail through the City of London The other Example was of Sir Francis Bacon Viscount St. Albans Lord Chancellour of England who for Bribery was put from his place and Committed to the Tower In King Charles the firsts time most of the Judges that had given their opinions contrary to Law in the Case of Ship-Money were call'd to Account and forced to Fly for the same And in the 19th year of our present Sovereign the Earl of Clarendon Lord Chancellour of England being questioned in Parliament and retiring thereupon beyond the Seas was by a special Act Banished and Disabled In a word it was well and wisely said of that excellent Statesman Sir William Cecil Lord Burleigh and High Treasurer of England That he knew not what an Act of Parliament might not doe which Apothegm was approved by King James and alleadged as I remember in one of his published Speeches And as the Jurisdiction of this Court is so transcendent so the Rules and Methods of Proceedings there are different from those of other Courts For saith Cook 4. Instit fo 15. As every Court of Justice hath Laws and Customs for its Direction some by the Common Law some by the Civil and Canon Law some by Peculiar Laws and customes c. So the High Court of Parliament suis propriis Legibus Consuetudinibus Subsistit Subsists by it's own Peculiar Laws and Customs It is Lex Consuetudo Parliamenti the Law and Custom of Parliament that all weighty matters in any Parliament moved concerning the Peers or Commons in Parliament assembled ought to be determined adjudged and discussed by the Course of the Parliament and not by the Civil Law not yet by the Common Laws of this Realm used in more Inseriour Courts Which was so declared to be Secundum Legem Consuetudinem Parliaments according to the Law and Custom of Parliament concerning the Peers of the Realm by the King and all the Lords Spiritual and Temporal and the like pari ratione for the same reason is for the Commons for any thing moved or done in the House of Commons and the rather for that by another Law and Custom of Parliament the King cannot take notice of any thing said or done in the House of Commons but by the Report of the House of Commons and every Member of the Parliament hath a Judicial place and can be no Witnâ—â—â— And this is the Reason that Judges ought not to give any opinion of a Matter of Parliament because it is not to be decided by the Common Laws but Secundum Legem Consuetudinem Parliamenti according to the law and Custom of Parliament And so the Judges in diverse Parliaments have confessed And some hold that every offence Committed in any Court panishible by that Court must be punished proceeding Criminally in the same Court or in some higher and not any Inferiour Court and the Court of Parliament hath no higher Thus Cook Great complaints have been made about a late House of Commons sending for some Persons into Custody by their Serjeant at Arms but certainly they did no more therein then what their Predecessiors have often done every Court must be supposed Armed with a power to desend it self from Affronts and Insolencies In all Ages when the House has appointed particular Committees hath it not been usual to order that they shall be impower'd to send for Papers Persons and Records But to bring Men to a sober Consideration of their Duty and Danger I shall give a few Instances besides those before mentioned of what the House of Commons hath done in former Ages 1. Anno 20. Jacobi Doctor Harris Minister of Bletchingly in Surry for misbehaving himself by Preaching and otherwise about Election of Members of Parliament upon complaint was called to the Bar of the House of Commons and there as a Delinquent on his Knees
order to which we must consider for what ends they serve and they are principally Two The first is the preservation of our Religion from Popery the other is to preserve inviolable our Liberty and Property according to the known Laws of the Land without any giving way unto or Introduction of that Absolute and Arbitrary Rule practiced in Forreign Countreys which we are neither to imitate or regard Therefore 1. Take Care to Choose such as are well known to be men of good Consciences fearing God throughly Principled in the Protestant Religion and of high Resolution to maintain it with their Lives and Fortunes And amongst these rather cast your Favour upon themof large Principles I mean in matter of meer opinion such as will not sacrifice their Neighbours Property and Civil Rights to the frowardness of their own Party in Religion Narrow Souls that will own none but those that bear their own Image and superscription will sooner raise Persecution at home than secure us from Popery and Invasion from abroad The great Interest of England at this day is to Tolerate the Tollerable to bear with the weak to encourage the Conscientious and to restrain none but such as would restrain all besides themselves 2. As we ought as near as we can possibly judge to Elect good Protestants towards God and just towards men yet since in this Corrupt Age wherein we Live men are not so spiritual as they ought to be it is not amiss to seek for those whose spiritual Interest is seconded by a Temporal one For though men talk high and keep a great Noise with Conscience and love to their Country yet when you understand Mankind aright not as it should be but as it is and I fear ever will be then you will find that private Interest is the string in the Bears Nose it is that Governs the Beast And therefore the surest Champions for our Religion Caeteris Paribus against the Papacy are our Abby Landed-men for notwithstanding the Registred Dispensation to King Henry the Eighth from the Pope for the seizing of those Monasteries and Lands yet of late they pretend that the Pope had not Power to Alien them from the Church so that the present Possessors can never trust or rely upon that or any new promises or Actual Grants thereof especially from him whose everlasting and declared Maxime it is Never to keep Faith with Hereticks Undoubtedly to make easy his ascent into the Saddle he will proffer many Assurances and Grants but if these Abby-Landed men be not the most silly of all others they will never believe him For when he is once firmly setled then will he with his Canon-Law Distinctions like Fire under Quicksilver Evaporate away all his Promises and violently Resume the Lands glorying of his own Bounty if he require not the mean profits ever since they have been sacriligiously with-held from Holy Church 3. Endeavour to Chuse men of Wisdom and Courage who will not be Hectored out of their Duties by the Frowns and Scowles of men Never had you more need to pitch upon the old English Spirit that durst be faithfull and just against all Temptations What a degenerate Race have we known that could never yet Resist Smile or Frown but tamely sunk below their own Convictions and knew the Evil they did yet durst not but Commit it 4. Make it your business to Chuse such as are resolved to stand by and maintain the power and priviledges of Parliament for they are the Heart-strings of the Common-Wealth together with the power and just Rights of the King according to the Laws of the Kingdom so as the one may not Entrench upon the other And such as with a becoming true English Courage will Prosecute all Traitors whether already Impeached or to be Impeached And to secure us from Popery hereafter and to get removed all Corrupt and Arbitrary Ministers of State and wicked Judges and stiflers of the discovery of the Popish Plot and Suborners and vile Pamphleteers that endeavour so industriously to Clear the Papists and expose the Protestant Religion and poison the People Lastly Take particular notice of those who are men of Industry and Improvement for such as are Ingenious and laborious to propagate the growth and advantage of their Country will be very tender of yeilding to any thing that may weaken or Impoverish it If you Conduct yourselves thus prudently honestly and gallantly in your Choice without putting the Gentlemen whom you chuse to serve you to charges the consequence will be that as you will be sure to have a good Parliament when ever His Majesty shall please to call one and such as will be zealous for the safety of the Protestant Religion and prosperity of the Nation if they shall continue to sit and Act so on the other side If they should be Dissolv'd and never so many new Parliaments be called yet you run no hazard for the same Candidates will still be ready to serve you And so we shall conclude our discourse of Parliaments when I shall first have observ'd that antiently all Freemen of England though not Free-holders had a right to chuse their Representatives till the same was altered and limited by the following Statute for the reasons therein mention'd The Statute Anno 8. Hen. 6. Cap. 7. What sort of men shall be Chusers and who shall be Chosen Knights of the Parliament ITem whereas the Elections of Knights of Shires to come to the Parliaments of our Lord the King in many Counties of the Realm of England have now of late been made by very great Outragious and Excessive numbers of People dwelling within the same Counties of the Realm of England of the which most part was of people of small Substance and of no value whereof every one of them pretended a voice Equivalent as to such Elections to be made with the most worthy Knights and Esquires dwelling within the same Counties whereby Man Slaughter Riots Batteries and Divisions among the Gentlemen and other People of the same Counties shall very likely rise and be unless convenient and due Remedy be provided in this behalf 2 our Lord the King considering the premises hath provided ordained and stablished by Authority of this present Parliament that the Knights of the Shires to be chosen within the said Realm of England to come to the Parliament of our Lord the King hereafter to be holden shall be chosen in every County of the Realm of England by People dwelling and resident in the same Counties whereof every one of them shall have Landor Tenement to the value of forty Shillings by the year at the least above all Charges 3 and that they which shall be so chosen shall be dwelling and resident within the same Counties 4 and such as have the greatest number of them that may expend forty shillings by the year and above as afore is said shall be returned by the Sheriffs of every County Knights for Parliament by Indentures sealed
in custody to procure their Liberty But before this statute was Rendred far less useful than it ought to be partly by the Judges pretending a power to Grant or deny the said Writ at their pleasure in many cases and Especially by the Ill practises of Sheriffs and Gaolers by putting the prisoner to the charge and trouble of an Alias and pluries that is a second and third Writ before they would obey the first for there was no penalty till the Third and then at last the Judges would oft-times Alleadge That they could not take Bail because the party was a prisoner of State c. Therefore to Remedy all those mischiefs This most wholsome Law was provided Which we shall briefly Endeavour to Divide into its several Branches and Explain it to the meanest Capacities since no Man is sure but one time or other he may have occasion to make use of it This Act concerneth either first persons committed for some other Criminal or supposedCriminal matter besides Treason or Felony and these are to have an Habeas Corpus Immediately 2ly such who in their Mittimus are charged with Treason or Felony these shall have the benefit of the said Writ after the time herein Limited 1st If any Gaoler or Under-Keeper shall not deliver a trueCopy of the Mittimus within 6 hours after the prisoner demands it the Head-Gaoler or Keeper forfeits to the prisoner for the first Offence 100l for the second Offence 200l and loses his place Nor is there any Fee to be paid for the same the Turn-key must deliver it at his peril And note if the prisoner should be lockt up or none suffered to come at him any friend of his may demand the same on his behalf 2. Whatever the Criminal matter be If Treason or Felony be not Expresly charged any person on the prisoners behalf carrying such true Copy of the Commitment to the Lord Chancellor or any one of the Judges or Barons of the Exchequer or upon Oath made that a Copy was demanded and denied he shall Grant an Habeas Corpus or forfeit 500l to the prisoner But note the Request must be made to such Judge in Writing and Attested by two witnesses 3. If the Sheriff or Gaoler do not carry up the prisoner and Return the true causes of his detainour within three days If under twenty miles distance or within ten daies if above twenty and under an hundred miles or within twenty daies if above an hundred miles he forfeits 500l to the prisoner Note the prisoner must pay the Charges of his carrying up and the Judge when he Grants the Writ may order how much but it must not be above 12 d. a mile If upon the Return of such Habeas Corpus it appear the prisoner is not charged with Treason or Felony specially and plainly Expressed or for such matters as by Law are not Bailable the Judge shall discharge the prisoner upon Bail 4. If a person once so Bailed out shall again be Imprisoned for the same Offence those that do it forfeit 500 l. 5. If there be High Treason or Felony plainly and specially Expressed That is not only Generally for Treason or Felony but Treason in conspiring to kill the King or in Counterfeiting the King's Coin or Felony for stealing the goods of such an one to such a value c. Then the Prisoner cannot have his Habeas Corpus till first he has on the first week of the Term or first day of Sessions of Oyer and Terminer or General Gaol-delivery petitioned in open Court to be brought to his Tryal and then if he be not brought to Tryal the next Term or Sessions following on the last day thereof he shall be Bailed and if not Indicted the second Term or Sessions shall be discharged 6. This Act extends to all places within England and Wales the Tower cannot be supposed to be exempted nor Windsor Castle nor any such Royal Forts for the words are general And besides there is a special Act of Parliament that unites the King's Castles to the Counties wherein they stand there having been it seems some pretensions and ill practices to hold them district that therein they might detain men prisoners against Law and not admit any Writ to enlarge them For Remedy whereof it was thus Enacted Anno 13. Rich. Secundi Item It is Ordained and Assented That the King's Castles and Gaols which were wont to be Joyned to the Bodies of the Counties and be now Severed shall be Rejoyned to the same Counties Lastly No person shall be sent Prisoner out of England or Wales into Scotland Ireland Jersey Guernsey Tangier or any other place beyond the Seas The Proviso's and other Clauses of this Act may be easily apprehended by the meanest capacities AND As the Law provides thus for our Liberty so it takes care that those that are in Custody shall not be abused or oppressed to which purpose I shall here insert so much as is material necessary to be known by all persons who are so unhappy as to be prisoners out of the Statute of the 22d and 23d Car. 2. Cap. 20. The words wereof are as follows WHEREAS Persons that are under Arrests or committed to the custody of Sheriffs Bailiffs Gaolers Keepers of Prisons or Gaols are much abused and wronged by Extorting of great Fees Rewards and other Exactions and put to great Expences under pretences of favour or otherwise whereby they are greatly Oppressed and many times Ruined in their Estates 2. For Remedy thereof Be it Enacted by the Authority aforesaid That if any Under-Sheriff Bailiff Serjeant at Mace or other Officer or minister whatsoever shall at any time or times hereafter have in his or their Custody any person or persons by vertue or colour of any Writ Process or other Warrant whatsoever it shall not be lawful for such Officer or Officers to convey or carry or cause to be conveyed or carried the said person or persons to any Tavern Ale-House or other publick Victualling or Drinking-house without the free and voluntary consent of the said person or persons so as to charge such Prisoner with any sum of Money for any Wine Beer Ale Victuals Tobacco or any other things whatsoever but what the said person or persons shall call for of his her or their own accord 3 And shall not demand take or receive or cause to be demanded taken or received directly or indirectly any other or greater Sum or Sums than what by Law ought to be taken or demanded for such Arrest taking or waiting until such person or persons shall have procured an Appearance found Bail agreed with his or their Adversaries or be sent to the proper Gaol belonging to the County City Town or Place where such Arrest or taking shall be 4. Nor take and Exact any other Reward or Gratuity for so keeping the said person or persons out of the Gaol or Prison than what he she or they shall or will of his her or their own
accord voluntarily and freely give 5 Nor take nor receive any other or greater Sum or Sums for each nights Lodging or other Expences than what is reasonable and fitting in such cases or shall be so adjudged by the next Justice of the Peace or at the next Quarter-Sessions 6. And shall not cause or procure the said person or persons to pay for any other Wine Beer Ale Victuals Tobacco or other things than what the said person or persons shall voluntarily freely and particularly call for And that every Under-Sheriff Gaoler Keeper of Prison or Gaol and every person or persons whatsoever to whose Custody any person or persons shall be delivered or commited by virtue of any Writ of Process or any pretence whatsoever shall permit and suffer the said person or persons at his and their will and pleasure to send for and have any Beer Ale Victuals and other necessary Food where and from whence they please and also to have and use such Bedding Linnen and other things as the said person or persons shall think fit without any purloyning detaining or paying for the same or any part thereof nor shall demand take or receive of the said person or persons any other or greater Fee or Fees whatsoever for his her or their Commitment Release or Discharge or for his her or their Chamber-Rent than what is allowable by Law untill the same shall be settled by three Justices of the Peace whereof one to be of the Quorum of each particular County City and Town Corporate in their several Precincts and for the City of London and Counties of Middlesex and Surrey the two Lord Chief Justices of the Kings's-Bench and Common-Pleas and the Lord Chief Baron or any two of them and the Justices of the Peace of the same in their several Jurisdictions And likewise that the said Lord Chief Justice Lord Chief Baron and Justices of the Peace in their several Jurisdictions and all Commissioners for Charitable Uses do their best Endeavours and Diligence to Examine and finde out the several Legacies Gifts and Bequests bestowed and given for the Benefit and Advantage of the Poor Prisoners for Debt in the several Gaols and Prisons in this Kingdom and to send for any Deeds Wills Writings and Books of Accompts whatsoever and any person or persons concerned therein and to Examine them upon Oath to make true discovery thereof which they have full Power and Authority hereby to do and the same so found out and ascertained to order and settle in some manner and way that the Prisoners hereafter may not be defrauded but Receive the full benefit thereof according to the true intent of the Donors And that these Accounts of the several Legacies Gifts and Bequests given and bestowed upon the several Prisoners for Debt within this Kingdom and the several Rates of Fees and the future Government of Prisons be signed and confirmed by the Lord Chief Justices and Lord Chief Baron or any two of them for the time being and the Justices of the Peace in London Middlesex and Surrey and by the Judges for the several Circuits and Justices of the Peace for the time being in their several Precincts and fairly written and hung up in a Table in every Gaol and Prison before the first day of November 1671. and likewise be Registred by each and every Clerk of the Peace within his or their particular Jurisdiction And after such Establishment no other or greater Fee or Fees than shall be so Established shall be Demanded or Received And whereas it is become the common practice of Gaolers and Keepers of Newgate the Gate-house at Westminster and sundry other Gaols and Prisons to Lodge together in one Room or Chamber and Bed Prisoners for Debt and Felons whereby many times honest Gentlemen Trades-men and others Prisoners for Debt are disturbed and hindered in the night-time from their natural Rest by reason of their Fetters and Irons and otherwise much offended and troubled by their lewd and prophane Language and Discourses with most horrid Cursing and Swearing much accustomed to such persons 2. Be it Enacted by the Authority aforesaid that it shall not be lawful hereafter for any Sheriff Gaoler or Keeper of any Gaol or Prison to put keep or Lodge Prisoners for Debt and Felons together in one Room or Chamber but that they shall be put kept and Lodged separate and apart one from another in distinct Rooms 3. Upon pain that he she or they which shall offend against this Act or the true Intent and meaning thereof or any part thereof shall forfeit and lose his or her Office Place or Imployment and shall forfeit treble damages to the party grieved to be Recovered by vertue of this Act any Law Statute Usage or Custom to the contrary in any wise notwithstanding And to the End that English-men may more entirely enjoy their due Freedoms the prudence of our Legislators have thought fit from time to time to Remove Encroachments thereupon though under pretence of Jurisdictions and Courts of Justice and to prohibit any Exorbitant Arbitrary Power for the future but that all things may be left to the calm and equal proceedings of Law and that most excellent Method of Trial by Juries one of the principal Bulwarks of England's Liberties For an Instance hereof take the Act following An Act for Regulating of the Privy Council and for taking away the Court commonly called the Star-Chamber VVHereas by the Great Charter many times confirmed in Parliament it is Enacted That no Freeman shall be taken or Imprisoned or Disseized of his Freehold or Liberties or Free Customs or be Outlawed or Exiled or otherwise destroyed and that the King will not pass upon him or condemn him but by lawful Judgment of his Peers or by the Law of the Land 2. And by another Statute made in the fifth year of the Reign of King Edward it is Enacted That no man shall be Attached by any Accusation nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattels seized into the King's Hands against the Form of the Great Charter and the Law of the Land 3. And by another Statute made in the five and twentieth year of the Reign of the same King Edward the third it is Accorded Assented and Established That none shall be taken by Petition or Suggestion made to the King or to his Council unless it be by Indictment or Presentment of good and lawful people of the same Neighbourhood where such Deeds be done in due manner or by Process made by Writ Original at the Common Law and that none be put out of his Franchise or Freehold unless he be duly brought in to Answer and fore-judged of the same by the course of the Law And if any thing be done against the same it shall be Redressad and holden for none 4. And by another Statute made in the eight and twentieth year of the Reign of the same King Edward the Third it is amongst other things Enacted That
thereby appears some of them did come to Church and heard divine Service to save the Penalties in the former Acts and yet continued Papists still in their hearts Therefore by this Act they were all to take the Sacrament once a year And if they refused they should forfeit 20 l. the 1st year for the 2d year 40 l. for every year afterwards 60l untill he or she have received the said Sacrament And by the 4th Section the Church Wardens and Constables are to present the monthly absence of all POPISH Recusants but they are not bound by this Act to present any but Papists For from this Act we may observe that none can be Prosecuted upon this Act or any of the other which it refers to which are all those here before rehearsed unless they be POPISH Recusants for so are the express words of the Act. And without doubt should any busy Officer whatsoever Present ot prosecute any person thereupon other than a Popish Recusant the person so presented may Joyn Issue that he is no such person as these Acts intend being not a Papist So that upon the whole matter we may conclude It is an abuse and utterly Illegall to Prosecute Protestants on such Laws as were made solely and wholly against Papists as will further appear in our next Observation and we have heard some Judges have declared so much However I shall here add the Judgment of the House of Commons in the Case for tho I know and own a vote of either or both Houses cannot Repeal a Law nor alter its sense yet certainly the House consisting of so many wise discreet persons a great number of them Excellently Learned in the Laws they are as like to Interpret a doubtful Law and hit upon the true Interpretation how far and to what it does extend as two or three little swaggering Justices or any single Judge At least were I an Officer I should rather incline to credit their opinion not run an hazard by employing the Toils made for restraining the Wolves and the Foxes to intangle destroy the Innocent sheep meerly because they do not all exactly tread in the very same steps and bite punctually all of one Sort of Grass Sabbati Sexto die Nov. 1680. Resolved Nemine contradicente That it is the opinion of this House That the Acts of Parliament made in the Reigns of Queen Elizabeth and King James against Popish Recusants ought not to be extended against Protestant dissenters And now having discharged these unlawful weapons let 's see what Legal Arms there are or have been really formed against the Sectaries And the first was the very sword of Goliah there was none like it 1. I mean the Act of 35 Eliz. Ca. 1. which some would make us believe has had as many Lives as a Cat intituled An Act to Retain the Queen's Majesties Subjects in their due Obedience This was the first Law that was made since the Reformation against those we commonly called Sectaries Conventiclers or Protestant Dissenters and this Act indeed beyond all dispute was made against them and them only for the Popish Recusants are expresly Excepted out of it as appears by the Act And that the Reader may better judge of the true difference between this Act and those others before recited made against Popish Recusants by the style and expressions I shall here insert the first Paragraph and give you the substance of the rest of it For the preventing and avoiding of such great Inconveniencies and Perils as might happen and grow by the wicked and dangerous practices of seditious Sectaries and disloyal Persons Be it Enacted by the Queen 's most Excellent Majesty and by the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same That if any person or persons above the Age of sixteen years which shall obstinately Refuse to Repair to some Church Chappel or usual place of Common-Prayer to hear Divine Service Established by Her Majesties Laws and Statutes in that behalf made and shall forbear to do the same by the space of one month next after without any lawful cause shall at any time after forty daies next after the End of this Session of Parliament by Printing Writing or Express Words or Speeches advisedly or purposely practise or go about to make or persuade any of Her Majesties Subjects or any other within her Highness's Realms or Dominions to deny withstand and impugn Her Majesties Power and Authority in cases Ecclesiastical United and Annexed to the Imperial Crown of this Realm or to that end or purpose shall advisedly or maliciously move or persuade any other person whatsoever to forbear or abstain from coming to Church to hear Divine Service or to Receive the Communion according to Her Majesties Laws and Statutes aforesaid or to come to or be present at any unlawful Assemblies Conventicles or Meetings under colour or pretence of any Exercise of Religion contrary to Her Majesties Laws and Statutes or if any person or persons which shall obstinately Refuse to Repair to some Church by the space of one month to hear Divine Service as is aforesaid shall after the said forty daies either of him or themselves or by the Motion Persuasion Inticement or Allurement of any other willingly Joyn in or be present at any such Assemblies Conventicles or Meeting under colour or pretence of any such Exercise of Religion contrary to the Laws and Statutes of this Realm as is aforesaid That then every such person so offending as aforesaid and being thereof lawfully convicted shall be Committed to Prison and there to Remain without Bail or Mainprise until they shall Conform and yield themselves to come to some Church Chapel or usual place of Common-Prayer and hear Divine Service c. Then the Act goes on and provides That if the person do not Conform within three months after Conviction he should Abjure that is be Banisht and swear never to come back without leave And if he will not swear so then the same to be Felony without Benefit of Clergy From which Act these 3 things are observable 1. That the same was wholly intended against the Puritanes or Sectaries for the Papists are expresly exempted by a particular clause Sect. 12. in these words ' Provided that No Popish Recusant or Feme Covert shall be compelled or bound to abjure by vertue of this Act. 2. That Q. Eliz. and her wise Parliament did not intend or take such Protestant Recusants to be within the meaning of or punishable by the other before mentioned Statutes against popish Recusants For if they had so understood they might have punished them sufficiently on those old Laws without giving themselves the trouble of making this new Law against them Frustra fit per plura quod fieri potest per pauciora God and the Law do nothing in vain 3. If it be objected That all those Laws as well as this ought to be construed to one
and the same end scope and that all the before mentioned Acts of Qu. Elizabeth and K. James are equally to be applied to all Dissenters from the Establisht Church of England I answer that cannot be for since in this Act no Papists are concerned being particularly exempted as aforesaid Then it necessary follows if the Popish Recusants shall not be punished by this Act made against Sectaries and seditious Conventiclers that then the Sectaries and Conventiclers Protestant Dissenters that is Protestant Recusants for that 't is they aim at to colour the laying the other Acts upon them shall not be prosecuted upon those Laws made only against Popish Recusants for if they should then you leave the Protestant Recusants in a far worse condition than the Papists the one being provided and not the other But still note that all that I have said about this Act of the 35. of Eliz. comparing it with the others made against Popish Recusants is only to shew the nature of the one and the other For the truth is this Act of the 35th of Eliz. is not now in force As appears thus 1. The very words thereof shew it to have been originally but a temporary Act for the last words of it are these This Act to continue no longer than to the end of the next Session of Parliament 2. By several Acts it was continued till the 1st year of K. James and then it was enacted that the same should be continued and remain in Force untill the end of the first Session of the next Parliament 3. The second and next Session of Parliament began and holden by Prorogation the 5th of Nov. in the 3d year of K. James and ended the 27th of May next and was then prorogued to the 18th of Nov. 1606. In which Session there was no continuance of this Statute of the 35th of Eliz. so that there it expired absolutely ceased and was of no more force than if it had never been and so continued for many years buried in Oblivion 4. In a Parliament held the 21. of K. James ca. 28. It is amongst other things enacted ' That this Statute of the 35. of Elâ—z shall be adjudged ever since the Session in the Seventh Year of His Majesties Reign of England to have been of such force and effect as the same were the last day of that Session and from thenceforth to the end of the first Session of the next Parliament But the truth is that the said Statute of the 35th of Eliz. was in no force nor of any effect at the last day of the Session in the 7th year of K. James being expired and gone long before viz in the 3. year of that King as aforesaid And being so down then this Stat. of the 21. Jacobi can no way set it up again for this only sets up what was in force in that Session of the 7th of K. James and no otherwise 5. So likewise in the 3. Caroli primi cap. 4. this Act amongst others is mentioned but how That it shall continue to the end of the first Session of the next Parliament in such force and effect as it was the first year of Charles the first when indeed it was then in no force at all 6. In the 16th Caroli secundi cap. 4. an Act was made Intituled An Act to prevent and suppress seditious Conventicles Which begins thus Whereas an Act made in the 35th year of the Reign of our late Soveraign Lady Queen Eliz. Intituled An Act to retain the Queens Majesties Subjects in their due Obedience hath not been put in Execution by reason of some doubt of late made whether the said Act be still in force although it be very clear and evident And it is hereby declared that the said Act is still in force and ought to be put in Execution For providing therefore of further and more speedy Remedies c. Be it enacted c. And the last clause of this Statute of the 16 Car. 2di runs thus Provided that this Act continue in force for 3 years after the end of this present Session of Parliament and from thence to the end of the next Session of Parliament after the said 3 years and no longer Now how far these words It is hereby declared that it is in force and ought to be put in execution without saying it is hereby enacted that it shall be in force might operate to give some Life and strength to the aforesaid expired Statute of the 35th of Eliz. I shall not determine But suppose it were thereby set on foot again this last Statute is but one intire Statute and that part which declares or inables the Statute of the 35th of Eliz. to be in force is joined and annexed to the rest and is altogether but one Law and hath its period at the time before prefixed and then that declarative part must die with the rest Now that Session wherein this Statute of 16 Car. 2. was made ended the 16th and 17th of Car. 2. Then the three Years for which it was to continue commenc'd and ended the 20th Car. 2d but after the three years it was to continue till the next Session of Parliament which next Session after the three years began 10. October 1667. and by Adjournments was continued to the 24th of October 1670 being the 22d of Car. 2d and then was the end of that and with it this Conventicle Act expired so that now there is no pretence of the 35th of Elizabeth's being in force for the declarative part in this Conventicle Act cannot enforce or give Life to any thing longer than it lives itself For if the Declaring part of this Act after it self is extinguisht can be read urg'd or construed as a Law to enforce and enliven another Statute which hath no being of a Law in it self then it would necessarily follow that an expired Law is as Authentick as a Law in being which is absurd From what hath been said it appears That as Protestant Dissenters ought not to be prosecuted on the Laws made against Popish Recusants so likewise 't is very evident That both the Statute of the 35th of Eliz. and also that of the 16th of Car. secundi are Expired and of no force And indeed 't is happy for the Nation that they are so for had these two Acts been still in force being of a cruel sanguinary nature much mischief might have accrewed to the people of this Kingdom So that there are now no Laws in being to punish the Conventiclers and the Nonconformist Ministers who did not Conform to the Act of Uniformity made in this King's Reign but the Act commonly called the 5 Mile or Oxford Act And the Conventicle Act made the 22th of this King These we shall severally consider Anno 17. Caroli Secundi Ca. 2. An Act for Restraining Nonconformists from Inhabiting in Corporations Whereas divers Parsons Vicars Curates Lecturers and other persons in holy Orders have not declared their unfeigned
Assent and Consent to the use of all things contained and prescribed in the Book of Common-Prayer and Administration of the Sacraments and other Rites Ceremonies of the Church according to the use of the Church of England or have not subscribed the Declaration or Acknowledgment contained in a certain Act of Parliament made in the 14 Year of His Majesties Reign and Intituled An Act for the Vniformity of publick Prayers and Administration of Sacraments and other Rites and Ceremonies and for the establishing the Form of making ordaining and consecrating of Bishops Priests and Deacons in the Church of England according to the said Act or any other subsequent Act And whereas they or some of them and diverse other person and persons not ordained according to the Form of the Church of England and as have since the Act of Oblivion taked upon them to preach in unlawful Assemblies Conventicles or Meetings under colour or pretence of Exercise of Religion contrary to the Laws and Statutes of this Kingdom have setled themselves in divers Corporations in England sometimes three or more of them in a place thereby taking an opportunity to distil the poisonous Principles of Schism and Rebellion into the hearts of His Majesties Subjects to the great danger of the Church and Kingdom II. Be it therefore enacted by the Kings most excellent Majesty by and with the Advice and consent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same That the said Parsons Vicars Curates Lecturers and other persons in Holy Orders or pretended Holy Orders or pretending to Holy Orders and all Stipendiaries or other persons who have been possessed of any Ecclesiastical or Spiritual Promotion and every of them who have not declared their unfeigned Assent and Consent as aforesaid and subscribed the Declaration aforesaid and shall not take and subcribe the Oath following I A. B. do swear That it is not lawful upon any pretence whatsoever to take Arms against the King and that I do abhor that Traiterous position of taking Arms by his Authority against his Person or against those that are commissioned by him in pursuance of such Commissions and that I will not at any time endeavour any Alteration of Government either in Church or State III. And all such person and persons as shall take upon them to preach in any unlawful Assembly Conventicle or Meeting under colour or pretence of any exercise of Religion contrary to the Laws and Statutes of this Kingdom 2. shall not at any time from and after the 24th day of March which shall be in this present year of our Lord God One thousand six hundred sixty and five unless only in passing upon the Road come or be within five Miles of any City or Town Corporate or Burrough that sends Burgesses to the Parliament within His Majesties Kingdom of England Principality of Wales or of the Town of Berwick upon Tweed 3 or within five Miles of any parish Town or place wherein he or they have since the Act of Oblivion been Parson Vicar Curate Stipendiary or Lecturer or taken upon them to preach in any unlawful Assembly Conventicle or Meeting under colour or pretence of any exercise of Religion contrary to the Laws and Statutes of this Kingdom 4 Before he or they have taken and subscribed the Oath aforesaid before the Justices of the Peace at their Quarter-Sessions to be holden for County Riding or Division next unto the said Corporation City or Burrough Parish place or Town in open Court which said Oath the said Justices are hereby impowered there to administer 5 Upon forfeiture for every such Offence the sum of Forty pounds of lawful English Money the one third part thereof to His Majesty and His Successors the other third part to the use of the poor of the Parish where the Offence shall be committed and the other third part thereof to such person or persons as shall or will sue for the same by Action of Debt Plaint Bill or Information in any Court of Record at Westminster or before any Justices of Assize Oyer and Terminer or Gaol-delivery or before any Justices of the Counties Palatine of Chester Lancaster or Durham or the Justices of the great Sessions in Wales or before any Justices of Peace in their Quarter Sessions wherein no Essoin Protection or wager of Law shall be allowed IV. Provided always and be it further enacted by the Authority aforesaid That it shall not be lawful for any person or persons restrained from coming to any City Town Corporate Burrough Parish Town or place as aforesaid or for any other Person or Persons as shall not first take and subscribe the aforesaid Oath and as shall not frequent Divine Service established by the Laws of this Kingdom and carry him or her self reverently decently and orderly there to teach any publick or private School or take any Boarders or Tablers that are taught or instructed by him or her self or any other upon pain for every such Offence to forfeit the sum of Forty pounds to be recovered and distributed as aforesaid V. Provided also and be it further enacted by the Authority aforesaid that it shall be lawful for any two Justices of the Peace of the respective County upon Oath to them of any Offence against this Act which Oath they are hereby impowered to administer to commit the Offender for six Months without Bail or Mainprise unless upon or before such Commitment he shall before the said Justices of the Peace swear and subscribe the aforesaid Oath and Declaration VI. Provided always that if any person intended to be restrained by vertue of this Act shall without fraud or Covin be served with any Writ Sub-poena Warranr or other Process whereby his personal appearance is required his Obedience to such Writ Sub-poena or Process shall not be construed an Offence against this Act. Note That as to the Penalty of Forty Pound the party must be tried at the Assises or Sessions before it is forfeited But any two Justices of Peace may commit for six Months unless before them he 'l swear and subscribe the Oath in this Declaration specified the Assent and Consent and the Declaration therein referr'd unto which if he do he puts himself out of their power Now the Assent and Consent he has spoke of is appointed by the Stat. 13 and 14. of Car. 2di chap. 4. as follows I A. B. do here declare my unfeigned Assent Consent to all every thing contained prescribed in by the Book intituled the Book of common Prayer Administration of the Sacraments and other Rites and Ceremonies of the Church according to the use of the Church of England together with the Psalter or Psalms of David pointed as they are to be sung or said in Churches and the form and manner of making ordaining and consecrating of Bishops Priests and Deacons The Declaration is by the Act last mentioned as
always those of the most Integrity and Skill in the Laws Their places are so Honourable and Profitable and their Tenure so Ticklish viz. durante beneplacito meerly during pleasure that they lie under no small Temptations which perhaps with some may be never the less unlikely to prevail for their having generally been wont before to take Fees They are concern'd in so many Causes that they are the oftner subject to be tempted and are so few that they may be the easier corrupted They cannot be Challenged and may be apt to think themselves above any Action and thence be encouraged to strain a point now and then The major part of them agreeing is enough they are never sworn at each particular Trial nor ever at all but once and that exceeding generally I say all these things may possibly sometimes happen to Biass some Judges for I intend not the least Reflection hereby on any of those Honourable Persons who at present deservedly supply our seats of Justice But nothing of that kind can reasonably happen to a Jury For 1. They are return'd by a sworn Officer 2. Must be men of a clear Reputation and competent Estate 3. Being Neighbours they may know something of the business on their own knowledge 4. Their Office is but a trouble not accompanyed with any great Honour nor any profit at all 5. They are all solemnly sworn to each particular Cause 6. The party may challenge 35 in case of Treason and 20 of them in Felony without shewing any cause and as many more as he can assign cause against 7. Of the Grand Jury Twelve at least must joyn in the Verdict and of the petty Jury every man of the Twelve must consent upon his Oath or else 't is all nothing And lastly if they give a corrupt Verdict between Party and Party they are liable to an Attaint But I do not find any Attaint lies in Criminal Causes where the King is a Party Now let any man of Sence consider whether this method be not more proper for bolting out the Truth for finding out the Guilty and preserving the Innocent than if the whole decision were left to the Examination of a Judge or two or three whose Interests Passion Haste or Multiplicity of business may easily betray them into Error Deservedly therefore is this Priviledge of Tryal by Juries rank'd amongst the choicest of our Fundamental Laws which whosoever shall goe about openly to Suppress or craftily to Vndermine and render only a Formality does Ipso Facto attacque the Government and brings in an Arbitrary Power and is an Enemy and Traitor to his King and Countrey For which reason English Parliaments have all along been most Zealous for preserving this great Jewel of Liberty Trials by Juries having no less than 58. several times since the Norman Conquest been established and Confirmed by the Legislative Power no one Priviledge besides having been neer so often remembred in Parliament SECT II. What persons ought to be Jury-men and how Qualified AS the Office of Juries is of such great Importance so the Wisdom of our Law has provided that the same shall be supplyed with Persons of Ability Honesty Integrity and Indifferency for as my Lord Cook saith 1. part Instit Sect. 234. fo 155. He that is of a Jury must be Liber Homo that is not only a Free man and not Bond but also one that hath such Freedome of mind as he stands indifferent as he stands unsworn 2. He must be Legalis and by the Law every Juror that is returned for the Trial of any Issue or Cause ought to have three properties 1. He ought to be dwelling most near to the place where the Question is moved 2. He ought to be most sufficient both for understanding and Competency of Estate 3. He ought to be least Suspicious that is to be indifferent as he stands Unsworn and then he is acounted in Law Liber Legalis homo otherwise he may be Challenged and not suffered to be Sworn but a mans being Excommunicated as was said before is no Barr to his being a Jury man much less his being a Dissenter or Non-frequenter of Church Ceremonies if he be otherwise qualified with Estate and Understanding for at that rate if Popery should ever get uppermost No Protestant at all would be capable of being a Jury-Man because a Non-Conformist to Holy Church Now if no Statute excludes Protestants unconvicted of any Crime or Dissenters quâ tales to serve on Juries I should think we ought to wait at least till an Act of Parliament be made to that purpose before we deny them Liberam Legem and to Act otherwise in my silly Opinion seems not only unwarrantable but a daring Usurpation of Legislative Power In a word Jurors must be free of and from all manner of Bondage Obligations Affections Relations and Prejudices they must be the Peers or Equals of the party they are to Try they must be of full Age 21 Years old or upwards not Outlaw'd never Attainted or Convicted of Treason Felony False Verdict Perjury or adjudged Infamous they were anciently all Knights as we read in Glanvil and Bracton and they must still be persons of worth and repute and as they are returned by a Sworn Officer the Sheriff so they of the petty Jury must be every one Sworn every several Trial by a particular Oath the more to remind them of their Duty Nay it should seem in ancient times thō the Office and Duty were still the same as at this day yet their Honour and Dignity were much greater The Mirrour of Justices a great part of which was Written before the Conquest and augmented by Andrew Horn a Learned Lawyer in the time of King Edw. the 2d p. 209. in the French and 153. in the English makes no scruple to call them JVDGES Judges Ordinaries sunt Suitors and Dr. Cowel in his Interpreter tells us Juries were anciently Associates and Assistants to the Judges of the Court in a kind of Equality whereas now a dayes they attend them in great Humility And cites the Customary of Normandy and Lambert as being of the same Sentiment Nay many Wise and Learned men have wondred that since the Law has conferr'd such ample power on Jury-men why they should have no kind of mark of Honour or Distinction as liberty to Sit with their Hats on from the time they are Sworn to the Delivery of their Verdict or the like For as the Custom is now a dayes they sitting amongst the Croud with their Caps off as well as the worst Malefactors they are to Trye 't is not easie knowing them from the rest of the Spectators But this Obiter I desire not to bring in Innovations but only that English men may preserve their ancient undoubted Priviledges to which purpose it will concern all that are liable to be Summoned to serve on Juries heedfully to Inform themselves of their Duty and Office by Law that so they may uprightly discharge the