but acquitted who are not guilty thereof Ninthly It is not evident first that the Title of the Act is to prevent and suppress Seditious Conventicles and not godly religious Meetings 2. That the remedies provided by the said Act are against the growing and dangerous practises of sedition Sectaries and disloyal persons who do at their Meetings contrive Insurrections as late experience hath shewed but neither former nor present experience hath shewed any such things to be done or intended at the godly Meetings of the innocent people reproachfully called Quakers who are utterly and absolutely against sowing of Sedition or contriving of any Insurrection and ought therefore to be cleared and clearly acquitted from the penalties of the Act in that case provided as not being persons that comes within the reason of the Act against whom the remedies are provided as aforesaid Tenthly Doth or may it not clearly appear that for persons to meet together in greater or lesser numbers really to serve and worship the Lord is no offence against Law nor punishable by the said Act but for persons to pretend to meet together under colour of religious Worship and do not intend it but makes a religious pretence a colour to cover and persecute a wicked intention under so as to sowe sedition and to design or contrive insurrection under so fair a pretence Eleventhly Ought not the Jurors to enquire of that to finde out the certainty and truth of the matter in issue or question in order to judgement or final determinations viz. Whether such a thing can be found out upon enquiry and so clearly and evidently appear that persons are guilty of contriving Insurrection at Meetings under so fair a pretence as aforesaid that they may suffer according to their deserts who do appear to be guilty thereof but if no such thing appear upon tryal is it not the duty of Jurors and Judges to acquit them that are not guilty either of sowing Sedition or contriving Insurrection at Meetings as aforesaid consider well of it Twelfthly Ought not the Jurors to consider what Meetings are accounted and declared by the late Act to be unlawful Assemblies and punishable thereby and doth or may it not appear that seditious and tumultuous Meetings are accounted and declared by the Statute it self to be unlawful Assemblies 1. Because the Title of the Act is to prevent and suppress seditious Conventicles 2. Because the remedies provided by the said Act are against the growing and dangerous practises of seditions Sectaries and disloyal persons who under pretence of tender Consciences do at their Meetings contrive Insurrections as late experience hath shewed And 3dly Because the execution of the penalties or the Act it self is for the preventing of the mischiefs that may grow by such seditious and tumultuous Meetings or as by the Statute appeareth Thirteenthly Is it so that seditious and tumultuous Meetings are declared by the said Act to be unlawful Assemblies that are to be prevented or suppressed as aforesaid ought it not to be made clearly apparent and evident to the Jurors That the godly and religious Meetings of an innocent people reproachfully called Quakers are seditious and tumultuous Meetings or else how can the Jurors justly condemn them as unlawful Meetings or Assemblies to suffer the penalties of the said Act ought they not rather in duty to God-ward and in discharge of their Office to clear them in the face of the Countrey and to free them from the force of the penalties consider well of it in the fear and wisdom of God unto whom all must give an account who hath punishments for the wicked and rewards for the righteous Fourteenthly Ought not the Jurors further to consider that for persons simply to meet and assemble together with out any intent to break the Peace in a seditious and tumultuous manner or to do any unlawful act with force or violence is not an unlawful Assembly but for persons to assemble and meet together with an intent to break the Peace in a seditious and tumultuous manner or to do some unlawful act with force or violence is an unlawful Assembly An Assembly of an hundred persons or more yea though they be in armour yet if it be not in terrour or affright of the people and were assembled without any intent to break the peace it is not prohibited by these Statutes 1 M. 12. 1 El. 17. nor unlawful saith Dalton in his Justice of Peace See Dalton fol. 279. It seemeth saith he it can be no unlawful Assembly except there be an intent precedent to do some unlawful act and with violence or force see Dalt I. P. fol. 279. And their being together when they are assembled and their demeanour must be such as shall or may breed some apparent disturbance of the Peace either by threatning speeches turbulent gesture shew of armour or actual force or violence to the terrour and fearing of the peaceabler sort of people c. or elce it can be no riot rout or unlawful Assembly saith Dalton in his Justice of peace see Dalton fol. 281. If little private Assemblies be Conventicles doth not the Act it self allow of Conventicles because it allows of little private Meetings to the number of four besides them of the houshold it seems it is not Christian Meetings but seditious Conventicles that are prohibited and punishable as aforesaid Ought not therefore the Jurors to enquire whether the persons assembled did sowe sedition discord debate and strife did they speak any seditious words or use any threatning speeches shew of armour or actual force or violence to the terrour and fearing of the peaceabler sort of people or how can it appear that they are guilty of seditious and tumultuous words and actions or of being at seditious and tumultuous Meeting and if no such things appear and be evident is it not the duty of the Jury to acquit them from the force of the penalties to all intents constructions and purposes Ought not the Judges or Justices to consider what they are commanded and sworn to do that they may perform their duty in respect of their Office and not break their Oathes Are not they commanded and sworn to do even or equal Law and Execution of right to all men rich and poor without respect of persons 2dly Are they not to allow the great Chartars of the Liberties of England in all their points 3dly Are they not to do Justice and Right to all men freely without sale fully without denyal and speedily without delay 4thly Are they not to do all men Justice and Right according to Law and the usage of the Realm 5thly Is it not according to Law and the usage of the Realm to convict or try Fellons Traytors and the worst of men by the verdict of a Jury of good men and true And how can persons properly according to Law and the usage of the Realm be said to be offenders for a third offence in one and the same cause matter
and thing if they were never convicted of and tryed by a Jury of good men and true for the first and second offence according to Law and the usage of the Realm It is enacted by Magna Charta confirmed by 32 Acts of Parliament that no Free-man shall be taken or imprisoned 9 Hen. 3. cap 29. Cooks Proeme to the 2 part Instit or dis-seized of his Free-hold or Liberties or free Customes or be outlawed or exiled or in any wise destroyed nor we will not pass upon him nor condemn him but by lawful judgement of his equals or by the Law of the Land we shall sell to no man we shall deny or defer to no man either Justice or Right Magna Charta cap. 29. First No man is to be taken or imprisoned but by the Law of the Land that is by the Common Law Statute Law or custome of England Secondly No man shall be disseized that is put out of seizen or dispossessed of his Free-hold that is Lands Livelihood or of his Liberties or free Customes 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 judgement that is verdict of his equals that is men of his own condition or by the Law of the Land that is to speak once for all by due course and process of the Law Thirdly No man shall be outlawed made an Ex lex put out out of the Law that is deprived of the benefit of the Law unless he be outlawed according to the Law of the Land Fourthly No man shall be exiled or banished out of his Countrey unless he be exiled and banished by the verdict of his equals or according to the Law of the Land Fifthly No man shall be in any sort destroyed except it be by the verpict of his equals or according to the Law of the Land Sixthly No man shall be condemned at the Kings Suit either before the King in his Bench where the Pleas are Coram Rege nor before any other Commissioner or Judge whatsoever but by the judgement of his Peers that is equals or according to the Law of the Land Seventhly We shall sell to no man Justice and Right Eighthly We shall deny to no man Justice or Right Ninthly We shall defer to no man Justice or Right see Cook upon the 29. chap of Magna Charta 2. pt Instit fol. 45.46 47 48 49 50. No man shall be in any sort destroyed unless it be by the verdict of his equals or according to the Law of the Land And no man shall be condemned at the Kings suit before the King in his Bench nor before any other Commissioner or Judge whatsoever but by the judgement of his Peers that is equals or according to the Law of the Land saith Cook upon Magna Charta Nisi per Legem terra but by the Law of the Land for the true sense and exposition of these words see the Statute of 37. Edw. 3. where the words 37. Edw. 3. cap. 18. by the Law of the Land are rendered without due process of Law for there it is said though it be contained in the great Charter That no Man be taken imprisoned or put out of his Free-hold without process of Law that is by Indictment and Presentment of good and lawful men 25. Edw. 3. cap. 4. where such deeds be done in due manner or by Writ Original of the common Law see Cook upon Magna Charta fol. 50. Item Whereas it is contained in the great Charter of the Franchises of England that none shall be imprisoned or put out of his Free-hold nor Franchise nor free Customs but by the Law of the Land it is accorded ascented and established that from henceforth none shall be taken by petition or suggestion made to our Sovereign Lord the King or to his Council unless it be by Indictment or presentment of his good and lawful Neighbours where such deeds be done in due manner or by process made by Writ Original at the common Law nor that none be put out of his Franchises nor of his Free-holds unless he be duly brought in to answer and fore-judged of the same by way of Law And if any thing be done against the same it shall be redressed and holden for none see the Statute 25. Edw. 3. cap 4. No man shall be taken and imprisoned without being brought in to answer by due process of Law for it is enacted by a Statute made in the eight and twentieth year of the reign of King Edward the third that no man of what state and condition soever he be shall be put out of his Lands or Tenements nor taken nor imprisoned nor disinherited without being brought in to answer by due process of Law 28. Edw. 3. cap. 3. see the Statute it self 28. Edw. 3. cap. 3 And no man is to be put to answer without presentment before Justices or matter of Record by due process of Law for by a Statute made in the two and fortieth Year of the Reign of King Edward the third 42 Ed. 3. c. 3 it is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices of Record by due process or by Writ Original according to the old Law of the Land and if any thing be done from henceforth to the contrary it shall be made void in Law and holden for errour as by the Statue appeareth 42 Edw. 3. c. 3. Is it not contrary to Magna Charta and the Law of the Land to take men and imprison them and pass judgement upon them in any case without due and legal proceedings And if they have due and legal proceedings are they not to be indicted or presented by good and lawful people of the same neighbourhood where the fact or offence is committed in due manner as aforesaid or else by processe made by Writ Original at the common Law and if that be denyed and men be condemned before they be imprisoned and without verdict of their equals and without being duly brought in to answer and tryed by the course of the Law are they not destroyed contrary to Law or ought not such things to be redressed and holden for none as are against Magna Charta and the Law of the Land as aforesaid And if any man be imprisoned and be not duly brought in to answer according to Law as aforesaid ought not the proceedings against him to be void in Law and holden for errour If men cannot legally according to Law and the usage of the Realm be tryed as offenders for the third offence for one and the same cause matter and thing if they were never legally convicted of and tryed for a first and second offence according to the great Charters of the Liberties of England or the former Statutes and Laws of the Land as aforesaid may not that offence whereof they are first convicted and tryed by due
THE Liberty of the Subject BY Magna Charta OR Several weighty things to be considered of by the Jurors and Judges seeing the Law of ENGLAND is said to be a Law of Mercy and doth take care that Jurors be of the next Neighbourhood most sufficient Men and Persons that are least suspicious And that Judges and Ministers of Justice are to do even Law and Execution of Right to all Men rich and poor without respect of persons And That MAGNA CHARTA and the Charter of the Forrest are to be allowed in all their points and that if any Judgement be given contrary to the Points of the Charters by any of the Kings Ministers of Justice it is to be undone and holden for naught 25. Ed. 1. c. 1.2 Likewise No man is to be put to answer without presentment before Justices or matter of Record by due process or by 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 42 Ed. 3. cap. 3. Written in the 6th Month 1664. THE Liberty of the Subject BY Magna Charta OR Several serious and weighty confiderations as hereafter followeth 1. Because the Innocent shall not be worn and wasted by long Imprisonment 2. That Prisoners for criminal causes when they are brought to their Tryal be humanely dealt withal 3. The Judge ought to exhort him to answer without fear and that Justice shall be duly administred unto him c. FOrasmuch as the Law of England is said to be a Law of Mercy and that three things are favoured in Law 1. Life 2dly Liberty And 3dly Dowre And That there are two things which the Law delights in First To have things openly and solemnly done Secondly Certainty Cook 2. part Institut fol. 315.316 for Truth is said to be the Mother of Justice and Certainty the Mother of quietness and repose Cook 1. part Institut fol. 224.39 What care therefore ought the Jurors and Judges to have in executing the late Act made for preventing and suppressing seditious Conventicles that they may not do things uncertainly nor unjustly and without mercy nor that they may not seek to suppress the Truth and People of God instead of suppressing Sedition and preventing Insurrection nor that they may not punish the Innocent instead of the Guilty Ought they not in order to the Executing of the said Act to take these things hereafter following into due and serious consideration First That religious and godly Meetings which are only for the Service and Worship of God are neither accounted unlawful Assemblies nor prohibited or punishable by the said Act. But seditious and ungodly Meetings are prohibited and punishable thereby For it is sedition and contriving Insurrection at Meetings under colour of Religious Worship that makes Meetings to be unlawful Assemblies and seditious Conventicles punishable by the said Act and not such godly religious Meetings as are far off and free from Sedition in word or action and also from designing or contriving any Insurrection Secondly That such Meetings upon the account of Religion and Worship of God as are not contrary to the manner allowed by the Liturgy or practice of the Church of England are not prohibited nor punishable by the said Act but ought to be freed from the force of the penalties in that case provided Thirdly That for people to assemble and meet together without any intent either to sowe Sedition or to contrive Insurrection but onely to wait upon the Lord in the way of his Worship and to preach and pray and to perform duty and service to God at any time or in any place according to the gift and requirings or teachings of the Word and Spirit of God is not contrary to what is allowed by the Liturgy of the Church because the Liturgy alloweth the same Fourthly That for persons and people to assemble and meet together under colour of religious Worship with an intent to contrive Insurrection is to meet in other manner then is allowed by the Liturgy or practise of the Church because neither the Liturgy nor practise of the Church alloweth of any such things Fifthly Otherwise ought not the Jurors and Judges to consider whether according to Law and in order to a certain legal determination of the matter in a legal manner it ought not first to be determined by the Spiritual Judges viz. What Meetings upon the account of Religion and Worship of God are allowed by the Liturgy of the Church or contrary to the manner allowed by the Liturgy or practise of the Church before the Jurors or temporal Judges ought to finde a verdict and passe Judgement accordingly to punish the persons and people for such matters and causes seeing it is a spiritual matter and cause being about the Service and Worship of God Sixthly Ought they not to consider whether it belongs unto them to judge and condemn persons for spiritual causes and matters of Conscience in things appertaining to the Worship of God or whether they ought not to disclaim it as not belonging to their jurisdiction because they do not sit and act as Judges in a spiritual capacity but in a temporal for is not the body politick divided into two parts the one part called by the name of spirituality and the other called the temporality and are not their powers distinct the one to hear and determine spiritual matters and causes and the other to hear and determine temporal causes and matters and hath not the body spiritual power when any cause of the Law Divine happens to come in question or of spiritual learning to declare and determine all such doubts and to administer all such offices and duties as to their room spiritual doth appertain and are not the Laws Temporal for tryal of property of Lands and Goods and for the conservation of the people of this Realm in unity and peace without ravine or spoil by the Temporal Judges and the other by the Spiritual Judges 24. H. 8. c. 12. or as by the Statute appeareth see the Statute 24. Hen. 8. cap. 12. Seventhly Ought they not to consider that people are not to be punished by the late Act for the Service and Worship of God but for meeting together to sowe Sedition or to contrive Insurrection under pretence of Religious Worship and must it not be made apparent and evident that they do so viz. sowe Sedition or contrive Insurrection before they can or ought truly according to Law be found guilty or condemned by the late Act so as to suffer the penalties thereof Eighthly ought not they to consider 1. Against what persons and practises the remedies by the said Act are provided 2. Who they are that come within the reason of the Act. 3. For what end the penalties are to be executed And 4. What Meetings are accounted and declared by the said Act to be unlawful Assemblies and punishable thereby that those may not be punished