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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A54186	The peoples ancient and just liberties asserted in the tryal of William Penn, and William Mead, at the sessions held at the Old-Baily in London, the first, third, fourth and fifth of Sept. 70. against the most arbitrary procedure of that court.	Penn, William, 1644-1718.; Mead, William, 1628-1713, defendant.	1670 (1670)	Wing P1334B; ESTC R222457	38,197	64

and for the common profit of the Realm hath granted for him and his Heirs for ever these Articles above written Robert Arch-Bishop of Canterbury Primate of all England admonished all his Province once twice and thrice because that shortness will not suffer so much delay as to give knowledge to all the People of England of these presents in writing We therefore enjoyn all Persons of what estate soever they be that they and every of them as much as in them is shall uphold and maintain these Articles granted by our Soveraign Lord the King in all points And all those that in any point do resist or break or in any manner hereafter Procure Counsel or in any wise Assent to Testifie or Break those Ordinances or go about it by word or deed openly or privily by any manner of pretence or colour we the aforesaid Arch Bishop by our Authority in this Writing expressed do Excommunicate and Accurse and from the Body of our Lord Jesus Christ and from all the Company of Heaven and from all the Sacraments of Holy Church do sequester and exclude We may here see that in the obscurest Times of sottish Popery they were not left without a sence of Justice and the necessity of Liberty and Property to be inviolably enjoy'd which brings us to the cause of it 1st The cause of this famous Charter was as we have already said the Incroachments that were made by several Ministers of precedent Kings that almost became Customary and which had neer extinguisht the free Customs due to Englishmen How great care it cost our Ancestors it unbecomes us to ignore or by our silence to neglect It was that Yoak and Muzzle which failed not to dis-able many rageing Bears from entring the pleasant Vineyard of English-Freedoms that otherwise would not have left a fruitful Vine in being Anon we may give the Reader an account of some with their Wages as well as Works 2d The Reason of it is so great that it seems to be its own It is the very Image and Expression of Justice Liberty and Property Points of such eminent importance as without which no Goverment can be said to be reasonable but arbitrary and tyrannical It allows every man that liberty God and nature have given him and the secure possession of his property from the In-road or Invasion of his Neighbour or any else of that constitution It justifies no man in a fault only it provides equal and just ways to have the Offender tryed considering the malice of many Prosecutors and the great value of Liberty and Life 3d The End of it was the most noble of any earthly projection to wit The refixing of those shaken Laws held for many hundred years by constant claim that they living might be re-enstated in their primitive liberty and their posterity secured in the possession of so great a happiness Amongst those many rich Advantages that accrew to the free People of England from this great Charter and those many confirmatory Statutes of the same we shall present the Reader with the sight of some few that may most properly fall under the consideration and inquiry of these present times as found in our Common Law Books 1st That every English-man is born free 2d That no such Free-man shall be taken attached assessed or imprisoned by any Petition or Suggestion to the King or his Counsel unless by the indictment or presentment of good and lawful men where such deeds be done 5 Edw. 3. Chap. 9. 25 Edw. 3. Chap. 4. 17 R. 2. Chap. 6 Rot. Parl. 42 Edw. 3. Cook 2 Inst 46. 3d That no Free-man shall be diseized of his Free-hold or Liberties or free Customs c. Hereby is intended saith Cook That Lands Tenements Goods and Chattels shall not be seised into the Kings hands contrary to this great Charter c. 43. Ass pag. 12. 43 Edw. 3. Cook 2 Inst 32. Neither shall any such Free-man be put from his Livelyhood without answer Cook 2. Inst 47. 4ly That no Free-man shall be out-lawed unless he shroud and hide himself voluntarily from the Justice of the Law 2 3 Phil. Mar. Dier 114. 145. 5ly No Free-man shall be exiled Cook says there are but two Grounds upon which any man may be exiled One by Act of Parliament supposing it not contrary to the great Charter The other in case of abjuration for Fellony by the Common Law c. Cook 2. Inst 47. 6ly No Free-man shall be destroyed that is he shall not be fore-judged of Life Limb Dis-herited or put to Torture or Death every oppression against Law by colour of any usurped Authority is a kind of Destruction and t is the worst Oppression that is done by colour of Justice Cook Institu 2. 48. 7th That no Free-man shall be thus taken or imprisoned diseized out-lawed exiled or destroyed of his Liberties Free-holds and free Customs but BY THE LAWFUL JUDGMENT OF HIS PEERS vulgarly called Jury So that the Judgment of any fact or person is by this fundamental Law referred to the Brests and Consciences of the Jury It s rendred in Latine PER LEGALE JUDICIUM that is Lawful Judgment from whence it is to be observed that the Judgment must have Law in it and be according to Law which cannot be where they are not Judges how far the fact is legal or the contrary Judicium quasi Juris Dictum The Voice of Law and Right And therefore is their Verdict not to be rejected because it is supposed to be the Truth according to their Consciences For Ver dictis from vere dictum is quasi dictum veritatis or a true saying or judgment 9 Hen. 3. 29. Cook Inst 1. 39. Iust 4. 207. Cook says that by the word LEGALE three things are implyed 1st That this was by Law before the Statute and therefore this Statute but declaratory of the antient Law 2d That their Verdict must be legally given wherein is to be observed 1st The Jury ought to hear no Evidence but in the hearing and presence of the Prisoner 2d That they cannot send to ask any Question in Law of the Judges but in the presence of the Prisoner for de facto Jus oritur 3d The Evidence produced by the Kings Counsel being given the Judges cannot collect the Evidence nor urge it by way of charge to the Jury nor yet confer with the Jury about the Evidence but in the presence of the Prisoner Cook Inst 2. 49. 8th Or by the Law of the Land It is a Synonimous expression importing no more then by a Tryal of Peers or a Jury for it is sometimes rendred not or disjunctively but and which is connectively however it can never signifie any thing contrary to the old way of trying by Peers for then it would be connected to a contradiction Besides Cook well observes that in the 4th Chap. of the 25th Edw. 3 Per Legem Terrae imports no more then a Tryal by due process and writ Original at Common Law

excellent Fundamentals which we have before defined and defended from any just reason of revolution yet God Almighty who is always concerned to avenge the cause of Justice and those excellent good Laws by which it is upheld has by his providence befool'd their contrivances basfled their attempts by bringing their designs to naught and their persons frequently to condign punishment and disgrace their Age no Antiquary living can assure us unless they say As old as Reason it self but our own Authors are not lacking to inform us that the Liberties Properties and Priviledges of the English Nation are very ancient § 10. For Hern in his Mirror of Justice writ in Edward the first 's time Fol. 1. tells us That after God had abated the Nobility of the Britans he did deliver the Realm to men more humble and simple of the Countries adjoyning to wit the Saxons which came from the parts of Almaign to conquer this Land of which men there were forty Soveraigns which did rule as Companions and those Princes did call this Realm England which before was named the greater Britan These after great wars tribulations and pains by long time suffered did chuse a King to raign over them to govern the people of God and to maintain and defend their persons and their good in quiet by the Rules of Right and at the beginning they did cause him to sware to maintain the holy Christian Faith and to guide his people by Right with all his power without respect of persons and to observe the Laws And after when the Kingdom was turned into an Heritage King Alfred that governed this Kingdom about an hundred seventy one years before the Conquest did cause the great men of the Kingdom to assemble at London and there did ordain for a perpetual usage That twice in the year or oftner if need should be in time of Peace they should assemble at London in Parliament for the Government of Gods People that men might live in quiet and receive right by certain usages and holy Judgments In which Parliament saith our Author the Rights and Prerogatives of the Kings and of the Subjects are distinguished and set apart and particularly by him expressed too tedious here to insert amongst which Ordiances we find That no man should be imprisoned but for a capital Offence And if a man should detain another in Prison by colour of right where there was none till the party imprisoned died he that kept him in Prison should be held guilty of murder as you may read pag. 33. And pag. 36. He is declared guilty of Homicide by whom a man shall die in prison whether it be the Judges that shall too long delay to do a man right or by cruelty of Goalers or suffering him to die of Famine or when a man is adjudged to do pennance and shall be surcharged by his Goaler with Irons or other pain whereof he is deprived of his life And p. 149. That by the antient Law of England it was Fellony to detain a man in prison after sufficient Bale offered where the party was plevisable every person was plevisable but he that was appealed of Treason Murder Robbery or Burglary pag. 35. None ought to be put in common Prisons but only such as were ATTAINTED or principally APPEALED or INDICTED of some capital Offence or ATTAINTED of false or wrongfull Imprisonment so tender have the ancient Laws and Constitutions of this Realm been of the Liberty of their Subjects persons that no man ought to be Imprisoned but for a Capital Offence as Treason Murder Robbery or Burglary § 11. Nor is Lambard short in his excellent translation of the Saxon Laws from King Ina's time 712. to Hen. 3. 1100. In describing to us the great Obligation and strong Condition the people were wont to put upon their Kings To observe the ancient fundamental Laws and free Customs of this Land which were handed down from one Age to another And in the 17th Chap. of Edw. the Confessors Laws the mention there made of a Kings duty is very remarkable That if he break his Oath or performed not his Obligation Nec nomen Regis in eo constabit The same Lambard further tells us that however any may affirm William of Normandy to be a Conquerer He was received by the people as Edwards Successor and by solemn Oath taken to maintain unto them the same Laws that his Kinsman Edward the Confessor did this doctrine remained in the general unquestioned to the reign of King John who imperiously thought that Voluntas Regis and not salvus Populi was suprema Lex or the Kings will was the supream Law and not the Peoples preservation till the incensed Barons of that time betook themselves to a vigorous defence of their antient Rights and Liberties and learnt him to keep those Laws by a due restraint and timely compulsion which his former invasion of them evidenced to the World he would never have done willingly § 12. The Proposals and Articles of agreement with the Pledges given to the Barons on the behalf of the People by the King were confirm'd in Hen. the 3ds time his Son and Successor When the abused slighted and disregarded Laws by his Father were thought fit to be reduced to record that the people of England might not forever after be to seek for a written recorded Law to their defence and security for Misera servitus est ubi jus est vagum aut incognitum and so we enter upon that grand Carter of Liberty and Priviledge in the Cause Reason and End of it § 1. We shall first rehearse it so far as we are concerned with the formalities of Grant and Curse and shall then say something as to the Cause Reason and End of it A Rehersal of the Material Parts of the Great Charter of England HEnry by the Grace of God King of England c. To all Arch-Bishops or Earls Barons Sheriffs Provosts Officers and to all Bailiffs and our faithfull Subjects who shall see this present Charter greeting Know ye that we unto the honour of Almighty God and for the Salvation of the Souls of our Progenitors and our Successors Kings of England to the advancement of holy Church and amendment of our Realm of our meer and free will have given and granted to all Arch-Bishops c. and to all Free-men of this our Realm these Liberties under-written to be holden and kept in this our Realm of England for evermore We have granted and given to all Free-men of our Realm for us and our Heirs for evermore these Liberties under-written to have and to hold to them and to their Heirs of us and our Heirs fore-nam'd A Free-man shall not be Amerced for a smal fault but after the quantity of the fault And for a great fault after the manner thereof saving to him his Contenements or Free-hold And a Merchant likewise shall be amerced saving to him his Merchandize and none of the said Amercements shall be

which cannot be without a Jury therefore Per Judicium parum per Legem Terrae signifie the same priviledge unto the people Cook Inst 2. pag. 50. Thus have we presented you with some of those maxims of Law dearer to our Ancestors then life Because they are the defence of the Lives and Liberties of the People of England it is from this 29th Chap. of the great Charter Great not sor its Bulk but the Priviledges in it as from a spatious Root that so many fruitful Branches of the Law of England springs if Cook may be credited But how sacred soever they have been esteemed and still are by noble and just minds yet so degenerate are some in their proceedings that conscious to themselves of their baseness they will not dare stand the touch of this great Charter and those just Laws grounded upon it of which number we may truly rank the Mayor and Recorder of London with the rest of their wise Companions in their late Sestions at the Old Baily upon the occasion of the Prisoners First The Prisoners were taken and imprisoned without presentment of good and Lawful men of the Vicinage or the Neighbourhood but after a military and tumultuous manner contrary to the grand Charter 2d They refused to produce the Law upon which they proceeded leaving thereby the Prisoners Jury and whole Assembly in the dark 3d They refused the Prisoners to plead and directly withstood that great Priviledge mentioned in the first Chap. 25 Edw. 1. Where all Justices Mayors Sheriffs and other Ministers that have the Laws of the Land to guide them are required to allow the said Charter to be pleaded in all its points and in all causes that shall come before them in Judgment For no sooner did William Penn or his Fellow Prisoner urge upon them the great Charter and other good Laws but the Recorder cryed Take him away take him away put him into the Bale-dock or Hole From which the Recorder can never deliver himself unless it be by avowing the Laws are not his Guide and therefore does not suffer them to be pleaded before him in Judgment 4ly They gave the Jury their charge in the Prisoners absence endeavouring highly to insence the Jury against them 5ly The verdict being given which is in Law DICTUM VERITATIS The voice of Truth her self because not sutable to their humor They did five times reject it with many abusive imperious and menacing Expressions to the Jury such as no president can afford us as if they were not the only constituted Judges by the Fundamental Laws of the Land but meer Cyphers only to signifie something behind their Figures 6ly Though the Prisoners were cleared by their Jury yet were they continued for the non-payment of their Fines laid upon them for not pulling off their Hats in which the Law is notoriously broken 1st In that no man shall be amerced but according to the Offence and they have fined each forty Marks 2d They were not merced by any Jury but at the will of an incensed Bench. Besides there is no Law against the Hat and where there is no Law there can be no Transgression and consequently no legal Amercement or Fine 9 H. 3. Chap. 14. But how the Prisoners were trapanned into it is most ridiculous on the side of the contrivers that finding their Hats off would have them put on again by their Officers to fool the Prisoners with a trial of putting them off again which Childish conceit not being gratified they fined them the forty Marks a piece 7ly Instead of accepting their Verdict as good in Law and for the true decission of the matter according to the great Charter that constitutes them proper Judges and which bears them out with many other good Laws in what they agreed to as a Verdict the Court did most illegally and tyrannically fine and imprison them as in the Tryal was exprest And that notwithstanding the late just resentment of the House of Commons in Judge Keelings Case where they resolved that the president and practice of Fining and Imprisoning of Juries for their Verdicts were illegal And here we must needs observe two things 1st That the Fundamental Laws of England cannot be more slighted and contradicted in any thing next Englishmens being quite destroyed then in not suffering them to have that equal medium or just way of tryal that the same Law has provided which is by a Jury 2d That the late proceeding of the Court at the Old Baily is an evident Demonstration that Juries are now but meer Formality and that the partial charge of the Bench must be the Verdict of the Jury for if ever a Rape were attempted on the Consciences of any Jury it was there And indeed the ignorance of Jurors of their authority by Law is the only Reason of their unhappy cringing to the Court and being scared into an Anti-Conscience Verdict by their lawless threats But we have lived to an Age so deboist from all humanity and reason as well as Faith and Religion that some stick not to turn Butchers to their own Priviledges and Conspirators against their own liberties For however Magna Charta had once the reputation of a sacred unalterable Law and few hardned enough to incur and bear the long Curse that attends the Violaters of it yet it is frequently objected now that the benefits there designed are but temporary and therefore lyable to alteration as other Statutes are What Game such Persons play at may be lively read in the attempts of Dyonisius Palaris c. which would have Will and Power be the peoples Law But that the Priviledges due to English-men by the great Charter of England have their Foundation in Reason and Law and that those new Cassandrian wayes to introduce Will and Power deserve to be detested by all persons professing sence and honesty and the least Allegiance to our English Government we shall make appear from a sober consideration of the nature of those Priviledges contained in that Charter 1 The Ground of alteration of any Law in Government where there is no invasion should arise from the universal discommodity of its continuance but there can be no disprofit in the discontinuance of Liberty and Property therefore there can be no just ground of alteration 2 No one English-man is born Slave to another neither has the one a right to inherit the sweat and benefit of the others labour without consent therefore the Liberty and Property of an English man cannot reasonably be at the will and beck of another let his quality and rank be never so great 3 There can be nothing more unreasonable then that which is partial but to take away the LIBERTY and PROPERTY of any which are natural Rights without breaking the Law of nature and not of Will and Power is manifestly partial and therefore unreasonable 4 If it be just and reasonable for men to do as they would be done by then no sort of men should

invade the Liberties and Properties of other men because they would not be served so themselves 5 Where Liberty and Property are destroyed there must alwayes be a state of force and war which however pleasing it may be unto the Invaders it will be esteemed intollerable by the Invaded who will no longer remain subject in all humane probability then while they want as much power to free themselves as their Adversaries had to enslave them The troubles hazards ill-consequences and illegality of such attempts as they have declined by the most prudent in all Ages so have they proved most uneasie to the most savage of all Nations who first or last have by a mighty Torent freed themselves to the due punishment and great infamy of their Oppressors such being the advantage such the disadvantage which necessarily do attend the fixation and removal of Liberty and Property We shall proceed to make it appear that Magna Charta as recited by us imports nothing less then their preservation No Free-men shall be taken or imprisoned or be disseized of his Free-hold or Liberties or free Customs or be out-lawed or exiled or any other wayes destroyed nor we will not pass upon him nor condemn him but by lawfull judgement of his Peers c. A Free-man shall not be amerced for a small fault but after the manner of the fault and for a great fault after the greatness thereof and none of the said amercement shall be assessed but by the Oath of good and lawfull men of the Vicinage First It asserts English-men to be free that 's Liberty Secondly that they have Free-holds that 's Property Thirdly That Amercement or Penalties should be proportioned to the faults committed which is Equity Fourthly That they shall lose neither but when they are adjudged to have forfeited them in the judgment of theirh onest Neighbours according to the Law of the Land which is lawfull Judgment It is easie to discern to what pass the Enemies of the great Charter would bring the People First They are now Free-men but they would have them Slaves Secondly They have now Right unto their Wives Children and Estates as their undoubted property but such would rob them of all Thirdly Now no man is to be amerced or punished but suitably to his fault whilst they would make it sutable to their revengefull minds Fourthly Whereas the Power of Judgment lies in the Bre●sts and Consciences of twelve honest Neighbours they would have it at the discretion of mercenary Judges To which we cannot chuse but add That such Discourses manifestly strike at this present constitution of Government for it being founded upon the Great Charter which is the Antient Common Law of the Land as upon its best Foundation none can design the concelling of the Charter but they must necessarily intend the extirpation of the English Government For where the cause is taken away the effect must consequently cease And as the restauration of our antient English Laws by the Great Charter was the soveraign Balsom which cured our former breaches so doubtless will the continuation of it prove an excellent prevention to any future disturbances But some are ready to object That the Great Charter consisting as well of Religions as civil Rights the former having received an alteration there is the same reason why the latter may have the like To which we answer That the reason of alteration cannot be the same therefore the consequence is false The one being matter of Opinion about Faith and Religious Worship which is as various as the unconstant apprehensions of men but the other is matter of so immutable right and justice that all Generations however differing in their religious Opinion have concentered and agreed to the certainty equity and indispensable necessity of preserving these fundamental Laws so that Magna Charta hath not risen and fallen with the differing religious Opinions that have been in this Land but have ever remained as the stable right of every individual English-man purely as an English-man Otherwise If the civil Priviledges of the People had fallen with the pretended Religious Priviledges of the Popish Tyranny at the first Reformation as must needs be suggested by this Objection our case had ended here that we had obtained a Spiritual Freedom at the cost of a Civil bondage which certainly was far from the intention of the first Reformers and probably an unseen consequence by the Objectors to their idle Opinion In short there is no time in which any man may plead the necessity of such an action as is unjust in its own nature which he must unavoidably be guilty of that doth deface or cancel that Law by which the justice of Liberty and Property is confirmed and maintained to the People And consequently no person may legally attempt the subversion or extenuation of the force of the Great Charter We shall proceed to prove from instances out of both 1st Any Judgment given contrary to the said Charter is to be undone and holden for nought 25 Edw. 1. Chap. 2. 2d Any that by Word Deed or Counsel go contrary to the said Charter are to be excommunicated by the Bishops And the Arch-Bishops of Canterbury and York are bound to compel the other Bishops to denounce Sentence accordingly in case of their remissness or neglect which certainly hath relation to the State rather then the Church since there was never any necessity of compelling the Bishops to denounce sentence in their own case though frequently in the peoples 25 Edw. 1. Chap. 4. 3d That the great Charter and Charter of Forrest be holden and kept in all Points and if any Statute be made to the contrary that it shall be holden for nought 42 Edw. 3. 1. Upon which Cook that famous English Lawyer said That albeit Judgments in the King Courts are of high regard in Law and Judicia are accounted as Juris Dicta yet it is provided by Act of Parliament That if any Judgment be given contrary to any of the points of the great Charter it shall be holden for nought He further saith That upon the Statute of the 25th Edw. 1. Chapter 1. That this great Charter and the Charter of Forrest are properly the Common Law of this Land or the Law is Common to all the People thereof 4ly Another Statute runs thus If any force come to disturb the execution of the Common Law ye shall cause their bodies to be arrested and put in Prison Ye shall deny no man right by the Kings Letters nor counsel the King any thing that may turn to his damage or disherison 18 Edw. 3. Chap. 7. Neither to delay right by the great and little Seal This is the Judges Charge and Oath 2 Edw. 3. chap. 8. 14 Edw. 3. 14. 11 R. 2. chap. 10. 5ly Such care hath been taken for the preservation of this great Charer that in the 25th of Edw. 1. It was enacted That Commissioners should issue forth that there should be chosen in every Shire-Court