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
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
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
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
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
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
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
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
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
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
person or persons that shall frame Contrive Write Seal or Countersign any Warrant or Writing for such Commitment detainer Imprisonment or Transportation or shall be Advising Aiding or Assisting in the same or any of them 5. And the plaintiff in every such Action shall have Judgment to Recover his Treble Costs besides damages which damages so to be Given shall not be less than five hundred pounds 6. in which Action no delay stay or stop of proceeding by Rule order or Command nor no Injunction protection or priviledge whatsoever nor any more than one Imparlance shall be allowed Excepting such Rule of the Court wherein the Action shall depend made in open Court as shall be thought in Justice necessary for special cause to be Expressed in the said Rule 7. And the person or persons who shall Knowingly Frame Contrive write seal or Countersign any Warrant for such Commitment detainer or Transportation or shall so Commit detain Imprison or Transport any person or persons Contrary to this Act or be any waies Advising aiding or Assisting therein being Lawfully Convicted thereof shall be disabled from thenceforth to Bear any Office of Trust or Profit within the said Realm of England Dominion of Wales or Town of Berwick upon Tweed or any of the Islands Territories or Dominions thereunto Belonging 8. And shall Incur and sustain the pains Penalties and Forfeitures Limited ordained and provided in and by the statute of Provision and Premunire made in the sixteenth year of King Richard the Second 9. And be incapaple of any pardon from the King His Heirs or Successours of the said Forfeitures Losses or disabilities or any of them 13. Provided alwaies That nothing in this Act extend to give Benefit to any person who shall by Contract in Writing agree with any Merchant or Owner of any plantation or other person whatsoever to be transported to any parts beyond the Seas and receive Earnest upon such Agreement although that afterwards such person shall Renounce such Contract 14. Provided alwaies and be it Enacted That If any person or persons Lawfully Convicted of any Felony shall in open Court pray to be Transported beyond the seas and the Court shall think fit to leave him or them in prison for that purpose such person or persons may be Transported into any parts beyond the seas This Act or any thing therein Contained to the contrary notwithstanding 15. Provided also and be it Enacted That nothing herein Contained shall be deemed Construed or taken to Extend to the Imprisonment of any person before to first day of June one thousand six hundred seventy and nine or to any thing Advised procured or otherwise done Relating to such Imprisonment Any thing herein Contained to the Contrary notwithstanding 16. Provided also That If any person or persons at any time Resiant in this Realm shall have committed any Capital Offence in Scotl. or Ireland or any of the Islands or Foreign Plantations of the King His Heirs or Successours where he or she ought to be Tryed for such Offence such person or persons may be sent to such place there to Receive such Tryal in such manner as the same might have been used before the making of this Act any thing herein contained to the contrary notwithstanding 17. Provided alwayes and be it Enacted That no person or persons shall be sued Impleaded Molested or Troubled for any Offence against this Act unless the party offending be Sued or Impleaded for the same within two years at the most after such time wherein the Offence shall be Committed in Case the party Grieved shall not be then in Prison and if he shall be in Prison then within the space of two years after the decease of the Person Imprisoned or his or her delivery out of Prison which shall first happen 18. And to the intent no person may Avoyd his Tryal at the Assizes or General Gaol delivery by procuring his Removal before the Assizes at such time as he cannot be brought back to receive his Tryal there 2. Be it Enacted That after the Assizes proclaimed for thatCounty where the Prisoner is detained no person shall be Removed from the common Gaol upon any Habeas Corpus granted in pursuance of this Act but upon any such Habeas Corpus shall be brought before the Judge os Assize in open Court who is thereupon to do what to Justice shall appertain 19. Provided nevertheless That after the Assizes are Ended any person or persons detained may have his or her Habeas Corpus according to the direction and Intention of this Act. 20. And be it also Enacted by the Authority aforesaid That if any Information Suit or Action shall be Brought or Exhibited against any person or persons for anyOffence committed or to be committed against the form of this Law it shall be Lawful for such defendants to plead the General Issue that they are not Guilty or that they own nothing and to give such special matter in Evidence to the Jury that shall Try the same which matter being pleaded had been good sufficent in Law to have discharged the said Defendant or Defendants against the said Information Suit or Action the said matter shall be then as available to him or them to all Intents and purposes as if he or they had sufficiently pleaded set forth or Alledged the same matter in Bar or Discharge of such information Suit or Action 21. And because many times persons charged with petty Treason or Felony or as Accessaries thereunto are Committed upon suspition only whereupon they are Bailable or not according as the Circumstances making out that suspition are more or less weighty which are best known to the Justices of Peace that committed the persons and have the Examinations before them or to other Justices of the Peace in the County 2. Be it therefore Enacted That where any person shall appear to be Committed by any Judge or Justice of the Peace and charged as Accessary before the Fact to any petty Treason or Felony or upon suspicion thereof or with suspicion of petty Treason or Felony which pettyTreason or Felony shall be plainly specially expressed in the Warrant of Commitment that such person shall not be Removed or Bailed by vertue of this Act or in any other manner than they might have been before the making of this Act. The Comment THere are three things which the Law of England which is a Law of Mercy principally Regards and taketh care of viz. Life Liberty and Estate Next to a man's Life the nearest thing that concerns him is freedom of his person For indeed what is Imprisonment but a kind of Civil Death Therefore saith Fortescue Cap. 42. Angliae Jura in omni Casu Libercati dant favorem The Laws of England do in All Cases favour Liberty Touching Commitments and what is Required to make a Legal Mittimus see before Pag. 27. The Writ of Habeas Corpus is a Remedy given by the common Law for such as were unjustly detained
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
of the Council Bishop Temporal Lord Privy Councillor Judge or Justice whatsoever shall offend or do any thing contrary to the purport true intent and meaning of this Law Then he or they shall for such offence forfeit the sum of five hundred pounds of lawful Money of England unto any party grieved his Executors or Administrators who shall really prosecute for the same and first obtain Judgment thereupon to be Recovered in any Court of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 2. And if any person against whom any such Judgment or Recovery shall be had as aforesaid shall after such Judgment or Recovery offend again in the same then he or they for such offence shall forfeit the Sum of one thousand pounds of lawful Money of England unto any party grieved his Executors or Administrators who shall really prosecute for the same and first obtain Judgment thereupon to be Recovered in any Court of Record at Westminster by Action of Dept Bill Plaint or Information in which no Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 3. And if any person against whom any such second Judgment or Recovery shall be had as aforesaid shall after such Judgment or Recovery offend again in the same kind and shall be thereof duly convicted by Indictment Information or any other lawful way or means that such person so convicted shall be from thenceforth disabled and become by virtue of this Act Incapable ipso facto to Bear his and their said Office and Offices Respectively 4. And shall be likewise disabled to make any Gift Grant Conveyance or other Disposition of any of his Lands Tenements Hereditaments Goods or Chattels or to take any Benefit of any Gift Conveyance or Legacy to his own use 7. And every Person so offending shall likewise forfeit and lose to the party grieved by any thing done contrary to the true intent and meaning of this Law his treble Damages which he shall sustain and be put unto by means or occasion of any such Act or thing done the same to be Recovered in any of His Majesties Courts of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 8. And be it also provided and Enacted That if any person shall hereafter be Committed Restrained of his Liberty or suffer Imprisonment by the Order or Decree of any such Court of Star-Chamber or other Court aforesaid now or at any time hereafter having or pretending to have the same or like Jurisdiction Power or Authority to Commit or Imprison as aforesaid 2. Or by the Command or Warrant of the King's Majesty His Heirs and Successors in their own Person or by the Command or Warrant of the Council-board or oâ— any of the Lords or others of His Majesties Privy Council 3. That in every such Case every person so Committed Restrained of his Liberty or suffering Imprisonment upon demand or motion made by his Council or other Imployed by him for that purpose unto the Judges of the Court of King's-Bench or Common-Pleas in open Court shall without delay upon any pretence whatsoever for the Ordinary Fees usually paid for the same have forthwith granted unto him a Writ of Habeas Corpus to be directed generally unto all and every Sheriffs Gaoler Minister Officer or other person in whose Custody the person Committed or Restrained shall be 4. And the Sheriffs Gaoler Minister Officer or other person in whose Custody the party so Committed or Restrained shall be shall at the Return of the said Writ and according to the command thereof upon due and convenient notice thereof given unto him at the Charge of the party who requireth or procureth such Writ and upon Security by his own Bond given to pay the Charge of carrying back the Prisoner if he shall be Remanded by the Court to which he shall be brought as in like cases hath been used such Charges of bringing up and carrying back the Prisoner to be alwaies Ordered by the Court if any difference shall arise thereabout bring or cause to be brought the Body of the said Party so Committed or Restrained unto and before the Judges or Justices of the said Court from whence the same Writ shall Issue in open Court 5. And shall then likewise certifie the true Cause of such his Detainour or Imprisonment and thereupon the Court within three Court-daies after such Return made and delivered in open Court shall proceed to Examine and Determine whether the Cause of such Commitment appearing upon the said Return be Just and Legal or not and shall thereupon do what to Justice shall appertain either by Delivering Bailing or Remanding the Prisoner 6. And if any thing shall be otherwise wilfully done or omitted to be done by any Judge Justice Officer or other Person aforementioned contrary to the direction and true meaning hereof then such person so offending shall forfeit to the party grieved his treble Damages to be Recovered by such means and in such manner as is formerly in this Act limited and appointed for the like penalty to be Sued for and Recovered 9. Provided alwayes and be it Enacted That this Act and the several Clauses therein contained shall be taken and Expounded to Extend only to the Court of Star-Chamber 2. And to the said Courts holden before the President and Council in the Marches of Wales 3. And before the President and Council in the Northern parts 4. And also to the Court commonly called the Court of the Dutchy of Lancaster holden before the Chancellor and Council of that Court 5. And also in the Court of Exchequer of the County Palatine of Chester held before the Chamberlain and Council of that Court 6. And to all Courts of like Jurisdiction to be hereafter Erected Ordained Constituted or Appointed as aforesaid and to the Warrants and Directions of the Council-board and to the Commitments Restraints and Imprisonments of any person or persons made commanded or awarded by the King's Majesty His Heirs or Successors in their own Person or by the Lords and others of the Privy-Council and every one of them And lastly Provided and be it Enacted That no person or persons shall be Sued Impleaded Molested or Troubled for any Offence against this present Act unless the party supposed to have so Offended shall be sued or Impleaded for the same within two years at the most after such time wherein the said Offence shall be committed The Comment THE Court of Star-Chamber so called because held in a Chamber at Westminster the Roof of which
is garnisht with Golden Stars was not originally Erected but confirmed and establisht by the Stat. of the 3 H. 7. Ca. 1. For there had before been some such Jurisdiction as Cook observes 4. Instit fo 62. yet there is reason to believe That it grew up rather by Connivance and Usurpation than any due course of Law The Crimes it pretended to punish were the Exorbitant Offences of Great Men whom Inferiour Judges and Jurors though they should not would in respect of their Greatness be afraid to offend Bribery Extortion Maintenance Champerty Imbracery Forgery Perjury Libelling Challenges Duels c. Their proceedings were by English Bill and Process under the Great Seal and the punishments by them Inflicted were Fines Imprisonment Pillory Cutting off Ears c. But whatever pretences there were for the setting up this Court at first 't is certain it was made use of as a property of Arbitrary Power to Crush any whom the Ruling Ministers and Favourites had a mind to destroy and indeed there were Three things in the very nature of this Court which were destructive to the Original Constitution of our English Government and Liberties 1. They proceeded without Juries 2. They pretended to a Power to Examine men upon their Oaths touching Crimes by them supposed to be committed which is contrary to all Law and Reason For Nemo tenetur seipsum Accusare No man is bound to accuse himself 3. The Judges of this Court proceeded by no known Law or Rules but were left at Liberty to Act Arbitrarily and according to their own pleasures whereas the Law of Engl. hates to leave to any such an unlimited Power but as it marks out the several species of Crimes such or such an Act shall be Treason this Felony that petty Larceny c. So it awards certain and positive punishments proportionate to each of them Therefore this Court being found a Grievance to the Subject was by this Act dissolved and taken away And to the intent nothing of the like kind should by any other name be practised for the future it is Declared and Enacted That the King and His Privy Council shall not question or dispose of the Lands or Goods of any Subjects And if they do each Privy Counsellor or present forfeits 500l to the party grieved A Clause in the Act of 31. Car. 2. C. 1. Whereas by the Laws and Customs of this Realm the Inhabitants thereof cannot be compelled against their wills to receive Souldiers into their Houses and to sojourn them there Be it Declared and Enacted by the Authority aforesaid That no Officer Military or Civil nor any other person whatever shall from henceforth presume to Place Quarter or Billet any Souldier or Souldiers upon any Subject or Inhabitant of this Realm of any degree quality or profession whatever without his consent And that it shall and may be lawful for every such Subject and Inhabitant to refuse to Sojourn or Quarter any Souldier or Souldiers notwithstanding any Command Order Warrant or Billeting whatever HAVING thus recited several of the most material Statutes provided by the care and wisdom of our Ancestors and prudent Legislators for the Guarding and Securing our English Liberties I shall now for the Reader 's Information proceed to add certain other Laws of another nature And first give the Reader all the Statutes at this day in force against Protestant Dissenters upon the account of Religion And secondly an Abstract of all the Laws against Papists And in order to the first of these we begin with a Statute touching the Writ De Excommunicato Capiendo upon which many people have been prosecuted Which Act is as followeth Anno Quinto Reginae Elizabethae Ca. 23. An Act for the due Execution of the Writ De Excommunicato capiendo FOrasmuch as divers persons offending in many great Crimes and Offences appertaining meerly to the Jurisdiction and Determination of the Ecclesiastical Courts and Judges of this Realm are many times unpunished for lack and want of the good and due Execution of the Writ de Excommunicato Capiendo directed to the Sheriff of any County for the taking and apprehending of any such Offenders 2. The great abuse whereof as it should seem hath grown for that the said Writ is not Returnable in any Court that might have the Judgment of the well Executing and serving of the said Writ according to the Contents thereof 3. But hitherto have been left only to the discretion of the Sheriffs and their Deputies by whose Negligences and Defaults for the most part the said Writ is not Executed upon the Offenders as it ought to be 4. By reason whereof such Offenders be greatly encouraged to continue their sinful and criminous Life much to the displeasure of Almighty God and to the great contempt of the Ecclesiastical Laws of this Realm 2. Wherefore for the redress thereof be it enacted by the Queens Most Excellent Majesty with the assent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same That from and after the first day of May next coming every Writ of Excommunicato Capiendo that shall be granted and Awarded out of the high Court of Chancery against any person or persons within the Realm of England shall be made in the time of the Term 2. And Returnable before the Queen's Highness Her Heirs and Successors in the Court commonly called the King's Bench in the Term next after the Teste of the same Writ 3. and the same writ shall be made to contain at the least twenty days between the Teste and the Return thereof 4. And after the same writ shall be so made and sealed that then the said Writ shall be forthwith brought into the said Court of King's Bench and there in the presence of the Justices shall be opened and delivered of Record to the Sheriffs or other officer to whom the serving and Execution thereof shall appertain or to his or their Deputy or Deputies 5. And if afterward it shall or may appear to the Justices of the same Court for the time being that the same writ so delivered of Record be not duty returned before them at the day of the return thereof or that any other Default or Negligence hath been used or bad in the not well serving and Executing of the said Writ that then the Justices of the said Court shall and may by Authority of this Act Assess such Amerciament upon the said Sheriff or other Officer in whom such Default shall appear as to the discretion of the said Justices shall be thought meet and convenient which Amerciament so Assessed shall be Estreated into the Court of Exchequer as other Amerciaments have been used 3. And he it further Enacted by the Authority aforesaid That the Sheriff or other Officer to whom such writ of Excommunicato Capiendo or other Process by virtue of this Act shall be directed shall not in any wise be compelled to bring the
Body of such person or persons as shall be named in the said writ or Process into the said Court of the King 's Beneh at the day of the Return thereof 2. But shall only Return the same Writ and Process thither with Declaration briefly how and in what manner he hath served and Executed the same to the intent that thereupon the said Justices may then further therein proceed according to the Tenour and Effect of this present Act. 4. And if the said Sheriff or other Officer to whom the Execution of the said writ shall so appertain do or shall Return that the party or parties named in the said Writ cannot be found within his Bailiwick that then the said Justices of the King's Bench for the time being upon every such Return shall Award one Writ of Capias against the said Persons or Persons named in the said Writ of Excommunicato Capiendo 2. Returnable in the same Court in the Term-time two moneths at least next after the Teste thereof 3. With a Proclamation to be contained within the said Writ of Capias that the Sheriff or other Officers to whom the said Writ shall be directed in the full County-Court or else at the General-Assizes and Goal-delivery to be holden before within the said County or at a Quarter-Sessions to be holden before the Justices of the Peace within the said County shall make open Proclamation ten daies at the least before the Return that the party or parties named in the said Writ shall within six days next after such Proclamation yield his or their Body or Bodies to the Prison of the said Sheriff or other such Officer there to remain as a Prisoner according to the Tenour and Effect of the first Writ of Excommunicato Capiendo upon pain or forfeiture of ten pounds 4. And thereupon after such Proclamation had and the said six days past and expired then the said Sheriff or other Officer to whom such Writ of Capias shall be directed shall make Return of the same Writ of Capias into the said Court of the King's Bench of all that he hath done in the Execution thereof and whether the party named in the said Writ have yielded his Body to Prison or not 5. And if upon the Return of the said Sheriff it shall appear that the party or parties named in the same VVrit of Capias or any of them have not yielded their Bodies to the Goal and Prison of the said Sheriff or other Officer according to the Effect of the same Proclamation that then every such person that so shall make default shall for every such default forfeit to the Queens Highness Her Heirs and Successors ten pounds 2. VVhich shall likewise be Estreated by the said Justices into the said Court of Exchequer in such manner and form as fines and Amerciaments there taxed and assessed are used to be 6. And thereupon the said Justices of the King's-Bench shall also award forth another Writ of Capias against the said person or persons that so shall be Returned to have made default with such like Proclamation as was contained in the first Capias and a pain of twenty pounds to be mentioned in the said second Writ and Proclamation 2 And the Sheriff or other Officer to whom the said second Writ of Capias shall be so directed shall serve and Execute the said Writ in such like manner and form as before is Expressed for the serving and Executing of the said first Writ of Capias 3. And if the Sheriff or other Officer shall return upon the said second Capias that he hath made the Proclamation according to the tenout and Effect of the same Writ and that the party hath not yielded his Body to Prison according to the Tenour of the said Proclamation that then the said party that so she ll make default shall for such his contempt and default forseit to the Queens Highness Her Heirs and Successors the Sum of twenty pounds 4. which said Sum of twenty pounds the said Justices of the King's-Bench for the time being shall likewise cause to be Estreated into the said Court of Exchequer in manner and form aforesaid 7. And then the said Justices shall likewise Award forth another VVrit of Capias against the said party with such Proclamation and pain of forfeiture as was contained in the said second writ of Capias 2. and the Sheriff or other Officer to whom the said Third writ of Capias shall be so directed shall serve and Execute the said writ of Capias in such like mannor and form as before in this Act is expressed and declared for the serving and Executing of the said first and second writs of Capias 3. And if the Sheriff or other Officer to whom the Execution of the said third writ shall appertain do make Return of the said third writ of Capias that the Party upon such Proclamation hath not yielded his Body to Prison according to the Tenour thereof that then every such party for every such contempt and default shall likewise forfeit to the Queen's Majesty Her Heirs and Successors other twenty pounds 4. which Sum of twenty pound shall likewise be Estreated into the said Court of the Exchequer in manner and form aforesaid 5. And thereupon the said Justices of the King's Bench shall likewise Award forth one writ of Capias against the said party with like Proclamation and like pain of forfeiture of twenty pound 6. And that also the said Justices shall have Authority by this Act infinitely to Award such Process of Capias with such like Proclamation and pain of forfâ—iture of twenty pound as is before Limited against the said party that so shall make default in yielding of his Bâ—â—y to the Prison of the Sheriff until such time as by return of some of the said writs before the said Justices it shall and may appear that the said party hath yielded himself to the Custody of the said Sheriff or other Officer according to the Tenour of the said Proclamation 7. And that the party upon every default and contempt by him made against the Proclamation of any of the said writs so infinitely to be Awarded against him shall incur like pain and forfeiture of twenty pound which shall likewise be Estreated in manner and form aforesaid 8. And be it further enacted by the Authority aforesaid That when any person or persons shall yield his or their Body or Bodies to the hands of the Sheriff or other Officer upon any of the said VVrits of Capias that then the same party or parties that shall so yield themselves shall remain in the Prison and Custody of the said Sheriff or other Officer without Bail Basion or Mainprise in such like manner and form to all intents and purposes as he or they should or ought to have done if he or they had been apprehended and taken upon the said VVrit of Excommunicato capiendo 9. And be it further Enacted by the Authority aforesaid that if any
requiring him to do it himself if the Bishop still refuse And if the Sheriff do not do so you may have a Writ to the same purpose directed to the Coroner to do it as you may see in that Authentick Law-Book The Register of Original Writs fol. 66 and 67. So careful were our Forefathers for the Liberty of the Subjects Persons And hereby it appears that the Bishop is bound by Law to take such Caution that is Fidejussory Caution I mean by Bond and Sureties and thereupon to absolve the person Excommunicated though he will not take an Oath stare mandatis Ecclesiae To obey the commands of holy Church As for what shall be accounted such sufficient Caution the practice is for the Party and two Friends for there must be Two Sureties to be bound in a Bond of 10 l. seldom more or at most 20 l. to the Bishop conditioned that the Party shall obey the Commands of the Church but such Bond when entred into is but a Formality for they are never put in Suit and indeed signifie nothing Thus have we given our honest Countrey-men some few Directions how to act in this difficult and troublesom Affair being a Mystery unknown to many common practisers of the Law Note also That by the Statute of Car. 1. Ca. 11. For taking away the high Commission Court there is the following Clause And be it also Enacted by the Authority aforesaid that no Archbishop Bishop nor Viccar general nor any Chancellor Official nor Commissary of any Archbishop Bishop or Viccar general nor any Ordinary whatsoever nor any other Spiritual or Ecclesiastical Judge Officer or Minister of Justice c. shall Ex officio or at the Instance or promotion of any other person whatsoever urge enforce tender give or minister unto any Church Warden Sideman or other person whatsoever any Corporal Oath whereby he or she shall or may be charged or obliged to make any presentment of any Crime or offence or to confess or to accuse himself or herself of any Crime offence delinquency or misdemeanor or any Neglect matter or thing whereby or by reason whereof he or she shall or may be liable or exposed to any censure pain penalty or punishment whatsoever upon pain and penalty that every person who shall offend contrary to this Statute shall forfeit and pay Treble damages to every person thereby greived and the sum of 100 l. to him or them who shall first demand and sue for the same And tho by the Statute 13 Car. 2. Ca. 12. part of this Statute is abrogated yet this Clause is Excepted and confirmed by an express Proviso of the said last Act. And there are many precedents since His Majesties Restauration where Church Wardens being prosecuted in the Spir. Court for not Swearing to the Bishops Book of Articles of Inquiry have moved the Kings-Bench or common Pleas and obtained a prohibition to stop such proceedings as particularly in the Case of one Waters of Chichester in the Common Pleas. AND now coming to speak of the Laws upon which Protestant Dissenters are commonly prosecuted or threatned to be prosecuted I must for the Reader 's better understanding distinguish them for the truth is They are of two different Natures and kinds 1. Some Statutes which were wholly designed against Papists and ought only to be Exerted against them which yet some now would wrest and distort and make them Serve as Rods wherewith to lash dissenting Protestants for not coming to Church Receiving the Sacrament c. 2. The Laws that were indeed made against Puritan Sectaries as they call them or dissenting Protestants I shall first breifly sum up all the first Sort how many and what they are and show you the Reasons why they ought not to be turned upon such dissenters The Statutes I mean are in number Five viz. The 1. Elizabeth Ca. 2. The 23. Elizabeth Ca. 1. The 29. Elizabeth Ca. 6. The 1. Jac. Ca. 4. and 3 Jac. Ca. 4. which we shall handle in order 1. The Act of the 1. Eliz. Cap. 2. Was made Immediately after that Queens coming to the Crown when she found nothing but Papists and Protestants in General For the word Puritan in those days was not known much less our modern Terms of Reproach Whig Sectary or Fanatick and she being a good Protestant having been Educated therein and resolved to support that Religion casting about with her wise Council how to do it That the Indifferent and moderate sort of Papists might not be too much disgusted or alienated from the Protestant Religion but be rather invited to close therewith It was therefore on mature deliberation Concluded to go on gently as to the Reformation and not to throw off all the Ceremonies at once And therefore having a pattern of Protestant discipline made in King Edward the 6. time she follows the same steps as near as could be in the beginning and builds on the same Foundation which her pious Brother and his wise and honest Council had laid Therefore the first Act she passed was to take off the Jurisdiction of the See of Rome which had been Re-introduc'd by her Sister Mary of unhappy Memory and to take off all Coercive power whatsoever from Ecclesiastical Persons and all was annext to the Imperial Crown of England This Act was Intituled An Act to Restore to the Crown the antient Jurisdiction c. 1. Eliz. Ca. 1. And hereby all the Laws made in the time of Queen Mary for settling the Popes Authority in England were Repealed And also Section the 18th power is given to the Queen to grant Commissions under the Broad Seal of England to such Bishops or Laymen no matter which as she should appoint to hold Ecclesiastical Courts and none might do it without upon pain of a Praemunire and also the Oath of Supremacy is formed and hereby Injoined The very next Act is That which we have now under Consideration Intituled An Act of Vniformity and Common Prayer and Service in the Church and Administration of the Sacrament Which amongst other things Inflicts the penalty of 12d for not coming to Church every Sunday and Holy-day Now that this Act was intended against Papists may be concluded as well because the whole Act runs for the beating down of the Fopperies and superstitions of the Church of Rome and how could it aim at any sort of Protestants since at that time of day there were none but Papists and Churchmen in England This Twelvepence is not forfeited till Conviction which must be by a Jury to which purpose the Justices of Oyer and Terminer and of Assize and Mayors and Head-Officers of Corporations are Authorized To inquire hear and determine the same But the party must be Indicted the nextSessions or Assizes after the Offence or not at all So that they can upon this Act Prosecute at once for no more defaults than there are Sundaies Holy-days between one Sessions or Assizes and another And when the party is so Convicted the
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
hundred Pounds the one Moiety to the use of the Informer to be Recovered by Action Suit Bill or Plaint in any of his Majesties Courts at Westminster wherein no Essoign Protection or Wager of Law shall lie 12. And be it further Enacted by the Authority aforesaid that if any Person be at any time Sued for putting in Execution any of the Powers contained in this Act otherwise than upon Appeal allowed by this Act such Person shall and may Plead the General Issue and give the special matter in Evidence 2. And if the Plaintiff be Nonsuit or a Verdict pass for the Defendant every such Defendant shall have his full Treble Costs 13. And be it further Enacted by the Authority aforesaid that this Act and all clauses therein contained shall be Construed most largely and beneficially for the suppressing of Conventicles and for the Justification and Encouragement of all Persons to be Employed in the Execution thereof 2. And that no Record Warrant or Mittimus to be made by Vertue of this Act or any Proceedings thereupon shall be Reversed Avoided or any way Impeached by reason of any Default in form 3. And in Case any Person offending against this Act shall be an Inhabitant in any other County or Corporation or fly into any other County or Corporation after the Offence Committed the Justice of Peace or Chief Magistrate before whom he shall be Convicted as aforesaid shall certifie the same under his hand and Seal to any Justice of Peace or chief Magistrate of such other County or Corporation wherein the said person or persons are Inhabitants or are Fled into 4. Which said Justice or chief Magistrate respectively is hereby Authorized and required to Levy the Penalty or Penalties in this Act mentioned upon the Goods and Chattels of such person or Persons as fully as the said other Justice of Peace might have done in case he or they had been Inhabitants in the place where the Offence was Committed 14. Provided also that no Person shall be Punished for any Offence against this Act unless such Offender be Prosecuted for the same within three Months after the Offence Committed 2. And that no Person who shall be Punished for any Offence by Vertue of this Act shall be Punished for the same Offence by Vertue of any other Act or Law whatsoever 15. Provided and be it further Enacted by the Authority aforesaid that every Alderman of London for the time being within the City of London and the Liberties thereof shall have and they and every of them are hereby Impowered and required to Execute the same power and Authority within London and the Liberties thereof for the Examining Convicting and Punishing of all Offences within this Act committed within London and the Liberties thereof which any Justice of Peace hath by this Act in any County of England and shall be subject to the same Penalties and Punishments for not doing that which by this Act is directed to be done by any Justice of Peace in any County of England 16. Provided and be it Enacted by the Authority aforesaid that if the Person Offending and Convicted as aforesaid be a Feme-covert cohabiting with her Husband the Penalties of five Shillings and ten Shillings so as aforesaid Incurred shall be Levyed by Warrant as aforesaid upon the Goods and Chattels of the Husband of each Feme-covert 17. Provided also that no Peer of this Realm shall be Attached or Imprisoned by Vertue or Force of this Act any thing matter or clause therein to the contrary notwithstanding 18. Provided also that neither this Act nor any thing therein contained shall extend to Invalidate or avoid his Majesties Supremacy in Ecclesiastical Affairs 2. But that his Majesty and his Heirs and Successors from time to time and at all times hereafter Exercise and Enjoy all Powers and Authority in Ecclesiastical Affairs as fully and as amply as himself or any of his Predecessors have or might have done the same any thing in this Act notwithstanding Notes upon the foregoing Act. 1. By the Title Preamble and Scope of the Act it appears that the same is intended for suppressing Seditious Conventicles under Pretence of Religious Worship that is where the Conventiclers meet together under a pretence of Worship not according to the Liturgy and Practice of the Church of England but indeed to carry on ill designs against the State 2. If any such Conventicle be the Justices knowing it by the Oaths of two Witnesses may make a Record thereof and then the Persons so offending shall forfeit so as in the Act you have heard 3. It must appear upon Oath before the Justices or Confession of the Parties 1. That it was a Seditious Conventicle met together to disturb the Peace under pretence of Religion 2. That the Worship there practised was not according to the Liturgy and Practice of the Church of England so that the Informers must be present the whole time of the Meeting for if they only hear a man Praying or Preaching that is not contrary to the Practice of the Church of England and how does it appear that they did not read the Liturgy 3. It must be proved that there were Assembled five Persons or more besides the Inhabitants in the House 4. If a party be Fined above ten Shillings if he pay down the Money or it be levied within one Week after such Payment or Levy he may Appeal from the Justice Convicting to the next Quarter-Sessions where he shall have a Tryal by Jury thereupon and undoubtedly if it do not appear to the said Jury that it was a Seditious Meeting they ought to find for the Appealer 5. A General Warrant from any Justice or Justices to Constables to inquire after Seize c. all Conventicles in their Precincts is not good it ought to particularize the House and Place Houses and Places where the Conventicle is or Conventicles are held and then the Constable ought forthwith to goe and if he finds it so to suppress it but otherwise the Constable might be put to endless Vexation in hunting after Meetings to no purpose whereas the Act enjoyns him no such trouble and if you go once and find no Conventicle you are not obliged to go a second time on the same Warrant but ought to have a new one nor is the Constable obliged to turn Informer 6. As to Breaking open Doors you see the Act directs that it may be done first only in an House where 't is Inform'd there is actually a Conventicle as aforesaid that is upon the Oaths of two Persons 2. the Constables c. cannot do this without first there be a Demand and Denial to enter 3. Nor then neither without a Warrant from the Justice to that purpose If a Constable upon a light vain tale without two persons Swearing it that there is at such a House a Meeting and without Warrant shall venture to break open the Doors and there be found no Conventicle he makes himself liable to