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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A80048	Judges judged out of their own mouthes or the question resolved by Magna charta, &c. Who have been Englands enemies, kings seducers, and peoples destroyers, from Hen. 3. to Hen. 8. and before and since. Stated by Sr. Edvvard Coke, Knt. late L. Chief Justice of England. Expostulated, and put to the vote of the people, by J. Jones, Gent. Whereunto is added eight observable points of law, executable by justices of peace.	Jones, J., Gent.; Coke, Edward, Sir, 1552-1634.; England. Magna Charta.	1650 (1650)	Wing C4938; Thomason E1414_1; ESTC R13507	46,191	120

chief Court could command Bishops to give their clergy to such as ought to have it another cause was That the life of a man ought to be tryed before Judges of learning and experience of the Laws of the Realm for Ignorantia Judicis est saepenumerò calamitas innocentis These are the reasons that the Lord Coke alledgeth why some Pleas of the Crown were taken from Sheriffs Castellans Escheators Coronors and Bailiffs under which names saith he are comprehended all inferiour Judges Justices and Courts of Justice albeit saith he it be provided by the 9th chap. of Mag. Charta That the Barons of the five Ports should have all their Liberties and Customs These general words saith he again must be understood of such Liberti●s and Customs as are not afterwards in the same Charter by express words taken away and assumed to the Crown Might not the Kings inferior Courts command ordinary Ministers to give men their Clergie Expost and Quer. And might not that serve before Magna Charta as it is usual since For seldom or never in our memories did Bishops themselves attend any court for that service and now should they be necessary onely for that imployment So the Kings Court would be onely to command them but if Bishops may be spared why may not that Court for that cause And if by this Charter the King resumed some Pleas of the crown from those that formerly had them dor●● et follow that he resumed all Ple●● from those that formerly had them And if under the name of Bailiffs be comprehended all Judges and Justices are not the Judges of the Common-Pleas and Barons of the Exchecquer so comprehended And are none of them of such learning and experience in the Laws of the Realm to try the life of a man as Judges of the Kings-Bench Or else why are they sent for Goal-deliveries aswel as Judges of the Kings-Bench are Was it not provided by the 9. chapter of Mag. Charta That London and other Cities Burroughs and Towns as well as the Barons of the five Ports and other Ports should have their Liberties and Free-Customs Are all these now resumed by this 17. chap Who can understand so Or what meaneth the L. C. by his riddles Shall Magna Charta contradict it self though the Lord C. would and doth here and elsewhere Are not Commissions of Oyer and Terminer usual for Tryal of mens lives where Judges of the Kings-Bench cannot reach or dare not go Doth not London and other Corporations execute their Charters by their Recorders when the Kings-Bench gives them leave and then do not the Judges of the Kings-Bench grant that such Judges may be as learned and experienced in the Laws as themselves for the Trying of mens lives Are not mens lives Tryable for matter of Fact and not of Law except Treasons that reach to thoughts Are not Jurors the Judges of matters of Fact What great learning or experience in Law is requisite for a Judge to pronounce the sentence of death where the verdict hath determined the life But how many true men have been hanged and thieves saved by Judges interposing and obtruding their pestifferous pretended learning and experience in the Laws between the weak consciences of ignorant Jurors and the truth which kind of Jurors they make Sheriffs return for such purposes when they may have such returned as know the Facts and have sounder learning and experience in express Law than themselves All Wears from henceforth be utterly put down by Thames C. 23. Wear● c. and Medway and throughout all England but onely by the Sea-coasts It was specially given in charge by the Justices in Eyre saith the Lord C. that all Juries should inquire of all such as Fished with wears and Dams L. C. upon M. C. fol. 38. and it appeareth saith he by Glandvil lib. 9. c. 11. That when any thing is unjustly occupied within the Kings demesne or obstructed in publick waies or Rivers turned off their right channels or Citie-streets built upon and in general as often as any nusance to the Kings holding or his High-way or to any Citie is committed That is a purpresture viz. an Inclosure whereby one in chroacheth or maketh that several to himself which ought to be common to all or many and every publick River or stream the Kings High way If Wears be nusances as I am sure they are throughout England Expost and Quer. and Wales and if Commissioners for Sewers and Justices of Peace for want of them be sufficiently authorized to reform such wrongs and do not because chief doers thereof or sharers in the unlawful gain made thereof themselves why not Justices in Eyer imployed to execute their charge for the general amendment thereof for the publick good One Measure of Wine shall be throughout our Realm C. 29. Measures c. and one measure of Corn viz. according to the Quarter of London and Haberjects that is to say two yards within the list and as it is of Weights so shall it be of Measures This Act concerning Measures L. Cok● upon M. C. fol. 49. and Weights that there should be one Measure and one Weight through England is grounded upon the Law of God Deut. 25. v. 13 14. And this by Authority of Parliaments hath been often enacted but never effected If Weights and Measures throughout England ought to be one Expost and Quer. and that not onely by the Law of God as the Lord C. instanceth but also by this Charter of Agreement between the King and the People Why did not the Lord C. being chief Justice of England sworn to do Law and Justice too and between King and People as partly before did and hereafter further shall appear he was or ought to have been see this point of Justice so highly required by the Law of God and so mutually agreed upon by the Kings of this Land and their Subjects duly executed Nothing shall henceforth be given for a Writ of Inquisition Ca. 16. Inquisition nor taken of him that prayeth the Inquisition of Life or Member but it shall be granted freely A Writ of Inquisition L. C. upon M. C. fol. 42. viz. De odio atia anciently called De bono malo c. which the Common-Law gave a man that was imprisoned though it were for the most odious cause for the death of a man for which without the Kings Writ he could not be bailed Yet the Law favouring the Libertie and Freedom of a man from Imprisonment c. until the Justices in Eyre should come at what time he was to be tryed he might sue out this VVrit directed to the Sheriff c. If a Writ De odio atia was given by the Common-Law Expost and Quer. to a man Imprisoned for the most odious cause even for the death of a man and if the Common-Law favoured the Liberty of a man Imprisoned so that he should be Bailed for such a Fact until

for all England divided into six See and compare Rast abridg fol. 65. and Rog. Hoveden parte poster Annal. fol. 548. The not reading and publishing of Mag. Char. is the default partly of Sheriffs not requiring it partly of the Clerk of the Crown c. not sending it to them under Seal All defaults of Sheriffs c. are inquirable and punishable by Justices of Peace as Lamb. Fitz. H. Cromp. Dali c. affirm at large 5. Observe the peoples choice resumed by this Statute when the King presumed to make Justices of P. and under that specious Title to impower them first to affront and by degrees to suppress and at last to extinguish the larger power of Conservatours A Prerogative imposture devised by Lawyers for their own advantage when they got the King to confer this creation of Justices of Peace upon his Chancellours and Keepers to whom their creatures became obliged to subject all England to Westminster contrary to Mag. Char. 5. Justices in Eyre are discontinued long since and not onely for that they were interrupted and wearied out by the Prerogative Judges and Courts at Westminster by their Certioraries Corpus cum causa Errours and other Writs as the Lord Coke confesseth in his Exposition of the Stat. called A●t super Chart. fol. 540. but also for that Justices of Assize Justices of Peace and all Oyers and Terminers by their Commissions and Magistrates of Corporations by their Charters were enabled sworn to hear and determine all Trespasses Contempts Oppressions and Misdemeanours according to the Laws and customs of England as appeareth in and by all Commissions of the Peace Oyers Terminers and Charters that have Oyer and Terminer and by the Stat. made for the first institution of Justices of Peace in the 18th year of Ed. 3d. in which year was also ordained the Oath of all Judges and Justices of Oyer and Terminer for the due execution of justice without sale delay or denial which the thrice reverend Judge Anthony Fitz Herb. admonisheth them that consider it and their duty to God and their Countrey not to break upon any conditions Nat. brevium fol. 240. d. but now the common practice is otherwise 6. Justices of Peace ought not to be seduced to transgress M. C. and the Petition of Right by any Stat. that contradicts them nor to lose the publike interest for any Prerogative usurpation but to re-assume their authority fro People to act as conservatours of the ancient peace and profit of the Common-wealth as in cases of Remitter men stand to their best Title 6. Any that Will ought to have Commissions of Oyer and Terminer for all Extortions Oppressions and Misdemeanours of Sheriffs Under sheriffs Escheatours Bayliffs Clerks and all other Officers See Cromp. Just Peace fol. 51.8 Fitz H. Nat. br fol. 112. d. And Justices of Peace and all other Commissioners that ought by their Commissions and Oaths to punish all such offences do not are no less than porjurers and the greatest malefactours of all other themselves Nor can any Writs of Certiorari Corpus cum causa Errour Supersedeas or putting out of Commission excuse or supercede them to finish their Judgements and Executions in all such causes brought in question before them See and compare the Stat. of 2. Ed. 3. and 14. Ed. 3.14 and the 20. Ed. 3.1 and the Procedendo thereupon in Fitz. H. Na. Bre. fol. 240. where it is said They shall proceed to justice according to law notwithstanding any Letter Commandment Prohibition Writ Privy-Seal or Great Seal to the contrary And if any such things be granted by the King or any of his Judges or Coutrs such a Procedendo ought to be granted by the Keeper of the Broad Seal to countermand them and to command justice judgement and execution to be done even against the King much rather against Judges who under colour of Authority and justice delude and wrong Kings and People For saith the L. Coke upon the Stat. of Marlebridge cap. 5. there is no greater injustice than when under colour of Justice men are injured but Writs of Certiorari Corpus cum causa and Errour ought to be had and granted upon proof of malice partiality injustice or errour in matter committed by any inferiour Court but not upon suggestions or bare suppositions as is used See and compare therefore all the said Statutes in this case together with M. Dearhams Manuel p. 25. Nor by any Superiour Judges or Courts that are parties or concerned in the cause See the L. Coke upon Art super Chart. 7. These oppressions are daily committed by mercinary lawyers by colour of Statutes of their own devices against Mag. C. which Stat. ought to be repealed the longer execution thereof resisted by all or any necessary means 7. The granting of Writs or Commissions to do injustice by or to stay or delay justice where it is done or doing or to deny Writs or Commissions to cause or further justice to be done which always was and yet is the practice of the Prerogative Judges at Westminster not onely to cross interrupt Commissioners legally chosen in and by their Counties as Justices in Eyre were and such and all Justices of Peace and Officers of Trust and concernement in and to the Common-wealth still ought to be is the worst of all Oppressions and a general destruction of Law and People committed by colour of an usurped Authority as saith the L. Coke upon the Statute of Marlebr cap. 5. To prevent which his Lordship further saith It is lawful for the People to take up Arms or for Inferiour Judges to commit their Superiors and that before any Verdict or Judgement because they worthily loose the benefit of Law who intend to subvert it and Subordinate authority is more to be obeyed and assisted in the execution of Justice than the Supreamest to be indured to obstruct it All this and more is to be read in effect in the L. Cokes Exposition upon Art super Char. and the Stat. of Marl●br which if executed by Justices of Peace in their Counties and Magistrates in their Corporations would soon regulate abuses settle Peace and much inable the State and Common-wealth to pay publike debts and relieve distressed Souldiers For it is Law it self as virtue it selfe invirtuateth dignifieth and authorizeth her true servants to execute her precepts and confoundeth expulseth and turneth out of her service all her unjust Stewards and underminers As Jacob and David were preferred before their elder brethren and Saul Jeroboam c. were confounded by and for their own Apostacies As in all these cases c. all Justices of Peace should be carefull to observe their Oaths and perform their duties to the Common-wealth whereof they are eminent members So no doubt the Freemen of England would be ready to assist them in the regaining and preservation of their ancient Birth-rights Laws and Liberties Deus Faxit 8. Under the Titles of Trespases Contempts Oppressions

should others that are not such indeed be sheltered to defend or countenanced to offend under that pretence And as for Members of any Court why ought not they to sue and be sued by their Atturneys in other Courts than their own since it is unnatural for any bodie to suffer any of its Members though never so corrupt to be put to any smart which it may avoid And may not nay ought not every just Court avoid such suits and the suspition of their injustice by entertaining them and proceeding therein by leaving them to the justice of other Courts of competent judicature as all other Courts do leave their Members to the mercy of the Courts at Westminster or may not nay ought not all Courts of judicature within their jurisdictions determine the causes of all such Members of the Courts at Westminster as shall be found and arrested within their jurisdictions notwithstanding any Writs of priviledge or other Writs to remove them before they be determined rather than the Courts at Westminster may send for the Members of every Court to be justified by them For who can say he hath ever found any justice there against any priviledged man And how many that be no Members of any Court there indeed are so countenanced as subordinate to some ill Member or other there and have their Law for nothing to bring Fees and gain to one or other of those courts out of honestmens purses and Estates against whom they can shew no colour of right any where but where they know they shall be favored and their Adversaries oppressed And how many men of good Estates have been and daily are not onely oppressed but undone by that means Thirdly for Trespass vi Armis Is it but a common-Plea and consequently proper to all courts of Record and rather to be tryed within that jurisdiction where the offence is committed than elsewhere And hath not the King his Fines imposed and levyed by the authority of all such courts as wel as by the Kings-Bench Fourthly for Replevins may they not as well be removed to and determined by the Common-Pleas as in the Kings-Bench Fifthly what meaneth the Lord by his words viz. Originally restrained but that the Kings-Bench is restrained from having any original Writs Returnable thither in Real Pleas And is it not as much restrained from originals in Personal Pleas that are as Common-Pleas as Real by this Statute Or by what other Statute Law or President is it inabled to have any originals returnable to it for debt when the Register and Ret. brevium have no such Presidents as aforesaid Is not therefore all the practice of the Kings-Bench for debt unjust and perjurious as aforesaid and moreover a faint Action c. as the prisoners for debt in that Court have lately set forth by their Petition to the Lord General and his Officers concerning this matter A Free-man shall not be ameirced for a small fault Caput 14. Ameirciaments but after the quantitie of the fault and for a greater fault after the manner thereof saving to him his contenement or Freehold And a Merchant shall be likewise ameirced saving to him his Merchandize And any other Villain than Durs shall be likewise ameirced saving his Wainage if he fall into Our mercy And none of the said Ameirciaments shall be assessed but by the caths of honest men of the Visionage Carls and Barons shall not be ameirced but by their Peers and after the quantitie of their trespass No man of the Church shall be ameirced after the rate of his spiritual benefice but after the rate of his lay teuement and the quantitie of his trespass A Free-man here Lord Cook upon Magna Charta fol. 27. hath a special understanding saith the L. C. and is taken for a Free-holder and this appeareth by this clause Salvo contenemento suo viz. Saving his Free-hold c. This Act extendeth to Ameirciaments not to Fines imposed by any Court of Justice c. Free-men are not intended to officers or ministers or officers of justice c. The Writ of Moderata misericordia giveth remedie to the Partie that is excessively ameirced c. Albeit the Law of England is a Law of mercy yet it is now turned to a shadow for where by the wisdom of the Law these Ameirciaments were instituted to deter both Domandants from unjust suits and Defendants from unjust defences which was the cause in former times of fewer suits c. If amerciaments were instituted to deter Plantiffs from unjust suits Expost and Quer. and Defendants from unjust defences and were the causes of fewer suits in former times how comes the Law turned to a shaddow in the Lord Cokes time when in the Kings-Bench and Cmmon-Pleas am erciaments were as frequent and greivous as in any other time and suits no fewer nay more numerous than before as Records of both Courts declare unless he means that all the Writs in the Register and Natura brevium both original and judicial whereby suits were determined amongst neighbours friendly at home became useless since Habeas corpus c. carried all to Westminster And that there injustice shaddowed under the name and habit of justice remunerated the litigious supporters of her being with such shares of her spoils that though she trebled their amerciaments she made them alwaies gainers unless when to satisfie their revenge rather than their purses they commuted their monies for counsels and countenances to undo the opposers of their malice whereby both parties became loosers and often ruined and injustice onely remained the gainer and increased her kingdom as the Divel doth his by such suitors and made more suits for Westminster than all the Courts of Errors and their Judges Lawyers and Attorneys there shall wear out while they live without extraordinary helps of their servants No town or Free-man shall be distrained to make Bridges or banks C. 15. Bridg. Banks but such as of old time and of right have been accustomed to make them in the time of King Henry our Grandfather No Banks shall be defended henceforth C. 16. Banks but such as were in defence in the time of King Henry our Grandfather by the same places and the same hounds as were wont to be in his time Both the next precedent chapters sufficiently expound themselves so that the Lord Coke speaketh no more to this matter but that the Mirrour saith That diver Rivers and their Banks were in his time appropriated and blocked up by divers persons to debar common-fishings which were wont to be used there in the time of King H. 2. And I believe there are many more so done more lately which Commissioners for Sewers shall do well to look to No Sheriff C. 17. Pleas Crown Constable Escheator Coroner or any other our Bailiffs shall hold Pleas of the Crown One mischief before this Statute L. Coke upon M. C. 30. was saith the Lord Coke That no Court but the Kings