Selected quad for the lemma: act_n
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A58205
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The Readers speech of the Middle-Temple, at the entrance into his reading, Febr. 29, 1663/4 upon the statute of Magna Charta, Cap. 29.
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Reader.
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1664
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Wing R441; ESTC R24507
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10,926
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be this Statute de novo or declaratory were it at first a Charter only or an Act the matter is now without dispute since the same King and after him his Son King Edward a warlike Prince and our Justinian 25. Ed. 1. in his full age and glory enacted it to be allowed as Common Law for so are the words nay that it should be read twice a year in all Cathedrals ch 2. as the place where by the popes interest they were then most obstructed And his Royal Successors now Thirty and three times have confirm'd it by Acts of Parliament Nay we have an Act that declares all Acts void that are against it But leges posteriores priores abrogant So that what at the first erecting might be a Charter is become a Statute and so St. German terms it and so the Act of 5. Ed. 3. Cap. 8. And in pleadings what more usual than to lay it Contra formam Statuti in an Action brought upon this Law A Statute then it is and therefore not less proper for a Reading than that of Treasons 25. Ed. 3. which was but declaratory of the old Law The old Statutes sayes Ch. Justice Cook Preface to the 8th Rep. are the Text of the Common Law the Records and Reports are but Commentaries thereupon And if so then this Law and this Chapter chiefly which is the Jewel in the Ring is the foundation of the whole the rest but structures built upon it This the base those the descant And now Gentleman let us consider what sort of liberty is it that a liber homo a man of Reason can design which is not secur'd him by this Statute 1. Desires he to have his person free Nullus capiatur vel imprisonâ—tur 2 Desires he peace in the possession of his Land Nullus disseisetur de libero tenemento 3. Would he not have his Franchises encroach'd Nullus disseisetur de libertatibus 4. Favours he the old Customes which he has been bred in Nullus disseisetur de liberis consuetudinibus 5. Desires he to live in the protection of the Law Nullus utlagâ—tur 6. Delights he in his old equaintance and Country ir Nullus exulâ—tur 7. Would be not be oppress'd by his potent neighbour Nullus aliquo modo destruatur 8. Would be not be condemned before he be heard nor chas is'd before he be legally condemned Nec super eum ibimus nec super eum mittimus 9. Would he not be judged at will nor tryed but by his Neighbourhood and the Law why none of these or other grievance can surprize him Nisi per judicium parium vel per legem terrae 10. Lastly Would he have right done him and that without delay sine prece sine precio Nulli vendemus nulli negabimus aut deferemus justitiam vel rectum Loe here we have a Law for property in our Goods for title to our Lands for liberty to our persons for safety to our lives In general as my Lord Dyer notes fol. 104. here 's a remedy for every wrong that is and a prevention for every wrong that may be for no man shall suffer till he be condemned none condemned but by a legal trial and none tryed but is to be admitted to his just defence If a Subject of England be not liber who then is free How is it our interest as well as duty to support the Royal Government which shaken leaves us free to naught but the lusts of men How are their contrivances to be abhorr'd who design under a specious fallacy to erect their own greatnesse and revenge on the hazard of our lives and souls What I have enforc'd in relation to Kingship I suppose is cohaerent and not strain'd or impertinent to this occasion and indeed no more than I give me leave to say not unseasonably publisht before the Kings return which may acquit me of flattery or design There remains onely one scruple which may stick with some that are pre-possess'd and that is An acknowledgement that our Laws are excellent but they have been often violated and are apt to be obstructed in the execution For answer know that while we are here because men we are subject to infirmity nor is it possible to reap the more general fruit of the best establisht policy unlesse by compact we subject our selves to some possible inconveniences Accidents and the artifices of men are so various and incertain that no Government is was or ever can be so exact no not that Vtopian device which Mr. Wren so well asserted as can secure against all casual emergents and mischiefs Governments therefore are best weighed by comparisons and comparing the royal frame with that of our late Model which is the beloved of our Statists 't is easily demonstrated that Subjects are much more incident to oppression under that than this In the Royal frame the House of Commons are in a sort the Tribunes of the Subjects liberty and it has often interpos'd humbly yet with success Now shall that House we know when it was become our Tyrants To whom shall we appeal in case of grievance 'T is a change but fatal to the sheep when the Dog that guards them becomes the Wolf when such as in Kingship are entrusted only to consent that the Purse be open'd shall as then put in their hands to dispose and pay and themselves only to account unto themselves 'T is a wound in the very heart of Liberty and the less curable in that it is driven by a knot of hands a quarry of Soveraigns supporting one another like stones in an Arch every of whose dependants acts the Prince and fortifies a successive violation Whereas a Prince is but one circumscrib'd by a known Law and apt instruments are not lightly rais'd the terrour of a House of Commons being too exemplary however though Rex the King dies not and his Soveraignty cannot be divided from himself yet his person is mortal and his posterity not so active or more indulgent makes amends Upon this account it is that ever since the Conquest at the long run no innovation had ever happened but prerogative has been prun'd and perhaps too hastily in the branch thereof which let in the opportunity Search our Statutes and so you will find it I might instance the excellency of this Government from the solemn and profound order that we have in framing new in revoking or altering old Laws which like Gold must be seven times refin'd before they are in force In that other fiction how hastily upon every new light did they make Laws even as boys do Squibs and Crackers and as lasting without a ballance or other body maturely to debate and ripen Which Laws being absolute and without controul may be presum'd to bias towards their private interests though not by an exemption of the Purse for that were too scandalous yet by the invention or erecting of a new Office or employment which sufficiently rep its the payment I might also instance in
say They were somewhat too severe upon the Natives the better to make room for a new Plantation Dangelt an exaction not clear'd from the Crown he Releases The Jurisdiction Ecclesiastical and Civil this King also sâ—ver'd for before his Reign the Bishop and the Earle or their Deputites sate jointly in the Counties determining spiritual Causes in the Forenoon and secular in the Afternoon according to the pattern of the Jewish Sanhedrim which was imitated by the Christians in times primitive The Apostles and Elders which were no other than Lay-Magistrates deciding all controversies among Christians who voluntary submitted to their judgment for this see the Glossary 315. Lambert 80. and Mr. Selden on Edmerus 166. and History of Tyths chap. 14. 'T is only to be wish't that he had distinguisht their Causes as he divided their Courts for that omission has occasion'd those justlings of Jurisdiction which have since hapned between the Ecclesiastical Courts and the Courts and Common Law But more violent was this Conflict till by a Canon of the Counsel of Clarendon it was decreed That Regis justiciarius mittet in curiam sanctae Ecclesiae ad videndum quo modo res ibi tractatur The ground of Prohibitions Mat. Paris An. 1164. This the Clergy endeavoured to qualifie by Petition in Parliament 5.1 Ed. 3. nu 83. But thereto the King answered that he could not depart with his right 4. Just 339. King William in this Act designed a more regular dispatch of Causes and indeed as Pictaviensis sayes he was a Prince of Courage Spectaculum delectabile simul terribile He was sayes Matthew Paris Subjectis humilis but Rebellibus inexorabilis and deserves a memory in our Chronicles more illustrious for though his Normans at his new establishment importun'd him to connive at some oppressions yet the Law held out in title And then may we interpret the mistakes of a Prince to be his necessity or at least but as a step out of the way to avoid the Dirt manifesting that he is but Man and not more priviledged from Infirmity than his Subjects Little of good fame a revenge which bad Princes after their deaths cannot provide against in Rufus his Son have we upon Record for then sayes Paris were their Malae consuetudines exactiones injstae And this appears by that great Charter of his succeeding Brother King Henry the First who sayes Hoveden those evil customs penitus abrogavit and restor'd to opprest England the Laws of good King Edward with those emendations which his Father had added by the Counsel of his Barons so Florentius and Malmsbury King Stephen by his Charter confirms the good Laws which King Henry his Uncle had before granted with those of good King Edward and enjoins sayes Roger Bacon in his Book De impedimentis scientiae That none of the Laws of Italy the Imperial Laws should be retain'd Henry the Second ratifies the same Charter He grants what his Grandfather King Henry had granted and remits what he had remitted King John disputes it with his Nobles but was prevaild with in the Seventeenth year of his Reign to contract those former general Charters into one Grand one and this sayes the Monck of St. Albons Ex parte maxima leges antiquas regni consuetudines cortinebat Paris 246. But King John being as the Moncks report him of an unsteddy spirit recalls his Charter when the Normans being ingrafted into the English Nobility and inheritable as they thought to the English freedom contest it with their Prince and pray in aid of Lewis the French Kings Son by whose powers King John being worsted he dyes being poysoned as is supposed in a Chalice He left his Heir of the Age of Eleven years whose innocence had contracted no malice and in whom concenter'd not only the title of the Norman but also of the Royal Saxon blood for he was Grandson to Maud the Empress Daughter and Heir of Henry the First by Maud the Daughter of Malcolm King of Scots and Margaret his Wife Sister and Heir of Edgar Atheling true Heir to the Confessor The English who naturally abhor wrong and without a strong byas are just loyal forthwith desert the Forreigner and adhere to the Royal Issue The French Prince affrighted at the fervour of that generous spirit submits to terms and departs the Land King Henry the Third the Infant is Crown'd and in the Ninth year of his Reign being the Twentieth of his Age upon payment of a Fifteen of all mens movables Cap. 37. in full Parliament he gives and grants this Magna Charta whereof my Statute is a Chapter Afterwards pretending Infancy he declares this Charter Null which revives the Barons War and issues streams of English blood Yet here give me leave to note what the French Comines gives for a Maxim That no Subject ever drew Sword against his Prince but though his design prevail'd he himself suffer'd in Life Estate or Conscience And of this gives evidence That Pardon for which the Lords Petition this King Henry in Kenelworth the same Castle where they had imprisoned him Dictum de Kenelworth H. 3. Yet the result in the long run was the re-establishment of this Charter in the Twenty fifth of his Reign and in the presence of his Son the brave King Edw. 1. Mag. ch 37. and with such direful Ceremonies as were then Authentick by way of cursing and execrations to the Infringers as may astonish the Reader if he peruses Matthew Paris An. 1253. And reflects as well on such as violate the Kings Prerogative as Intrenchers upon the Subjects liberty By some as ignorant as censorious our Laws are scandal'd as introduced by Conquest whereas in truth this Charter is purely declaratory of the old Saxon as aforesaid so concludes St German Fol. 12. And in those captious points of Tenures Wardships and Purveyance I can demonstrate footsteps thereof before King William though possibly by him and his Issue improved with the honour of Kinghthood and Knights service But were the quarrel at all a grievance we have now a Prince who derives his Pedigree not only from the Norman but more ancient and direct from the Royal Saxon Line as well by Queen Margaret Sister and Heir of Edgar in the Scotch Descent as from Maud her Daughter Queen to King Henry the First in the English And for those pretended Norman innovations of Tenures Wardships and Purveyance he has been pleased to unhatch these Royalties from his Crown upon the Petition of the Parliament which is a Court de Tesgrand honour justice de que nul doit imaginer chose dishâ—nourable as we are taught in Plo. 388. In whose wisdoms it becomes people to acquiesce as their own choice and Representatives or to renounce all Rule but their own Yet may it with all submission be aver'd Those Royalties might possibly have been so refin'd to the Saxon Model as would have given an ornament and lustre to the Crown yet no pressure to the Subject But