protection of the law aâ—d not to be permitted to sue for a mans right or to bee staied by injunction or pronibition so that a man cannot proceed All which causes are illegall and contrary to this clause of the great Charter For every man ought to bee permitted to goe to triall judgement and execution in his cause according to the course of the law of the land And if he faile in his suit he shall pay costs and be amerced pro falso clamore Which amencement ought to bee reasonable salvo contenemento that he be not destroyed as is before declared Which payment of destruction is the fourth particular and now comes to be handled The words of the great Charter are That no man shall be any way destroyed but by judgement of his equals or according to the law of the land This word destruere amongst the Grammarians est idem quod penitus evertere diruere to destroy is all one as utterly to overthrow and demolish To destroy a man is to forejudge a man of life limb or liberty to dis-herit to put to torture or death any man without lawfull tryall due preparation to his defence or by SURREPTITIOUS IUDGEMENT All which are contrary to the law of the land It is the Genus of all the former particulars it is the most pernicious extent of all arbitrary power there have been to many examples of it Thomas Earl of Lancaster in the 14. E. 2. was destroyed that is adjudged to dye as a Traytor without lawfull try all of his Peers And afterwards Henry Earl of Lancaster his brother was restored First because that he was not arraigned and put to answer Secondly because that contrary to this Charter of Liberties the said Thomas being one of the Peers of the Realm without answer or lawfull judgment of his Peers he was put to death Such like proceedings were had in the case of John of Gaunt as appears P. 39. Coram Rege and in the E. of Aruudels case Rot. Par. 4. E. 3. Nu. 13. and in Sir John Alees case 4. E. 3. Nu. 2. Such was the destruction committed upon the Lord Hastings in the Tower of London by K. Richard the 3. who sware he would not dye before he saw his head off and thereupon caused him to be executed without tryall answer or lawfull conviction such was the destruction of the Lord Rivers and many other of sad remembrance but above all that Attainder of Thomas Cromwell Earl of Essen who was attainted of high Treason as appears Rot. Part. 32. H. 8. being committed to the Tower of London and forth-coming to be heard and yet never called to answer in any of the Houses of Parliament they sitting which we hope shal never be more drawn into president but wish with a clearned sage in the Law Quod auferat oblivio si potest si non utcunque silentium tegat which is let oblivion take away the memory of so foul a fact if it can if it cannot let silence cover it For the more high and honourable the Court is the more just and honourable it ought to be in the proceeding and to give example of Justice to inferiour Courts for these destructores subditorum dom Regis the destroyers of the free-born people of the Kingdom were ever-odious and hatefull to the subject and severe pains appointed for them as appears by the Statute of Kenelworth Par. 16. and by the old Statute of Rag-man and that this kind of destroying the Kings people is utterly against the Law of the Land is most evident not only by the great Charter but also by the Statute of 5. c. 3. c. 9. and 28. E. 3. c. 3. afore-mentioned and by the ancient Lawes of the Land as appears by Horn in his Mirrour of Justice c 2. sect 3. We proceed now to Exile which is the fifth particular The great Charter runs thus No man shall be exiled but by the Law of the Land Exile or banishment is of two sorts The one a voluntary which is at the Common-Law and that is when a man would abjure the Realm for a Fellony committed by him having taken sanctuary to avoid the punishment of death chusing rather perpetuall banishment then to put himself to the hazard of his life by a legall tryall for his offence as Stamf. Pl. Cor. p. 117. The other is when a man is inforced to banishment which is only legally done by Act of Parliament as appeares by the Statute of Westrn 1. cap. 20 35. El. c. 1. and 39. El. c. 4. and by that Judgment or Statute of banishment made of the two Spencers 15. E. 2. called Exilium Hugonis le-Despencer patris filii for though there was an Order or Ordinance made in the Lords house Anno 6. E. 3. Nu. 6. That such learned men in the Law as should be sent as Justices or otherwise to serue in Ireland should have no excuse yet saith Sir Edw. Cooke 2. part Instit p. 48. That Order or Ordinance being no Act of Parliament it did not bind the subject so that we that are the free-born subjects of England cannot at this day be enforced or compelled to depart the Realme or be exiled or banished from our native Country but by Act of Parliament And from this we passe to examine what is to be esteemed a lawfull Judgment of our Peers and what is here in this Charter meant by the Law of the Land This Great Charter was penned in Latine the words are thus Nec super eum ibimus nec super eummittemus nisi per legale judicium Parium suorum which are more emphatically in the Latine then in our English Translations of this Charter for the Translations render it We will not passe upon nor condemn any man but by the lawfull judgment of his Peers or by the Law of the Land whereas the words in the Latine import That the King shall not in his own person when he is personally present in his high Court of Parliament or any other of his Courts of Justice cause any man to be otherwise tryed or condemned then by lawfull judgment of his Peers or the law of the Land nec super eum mittemus that is That no Judges Commissioners or Justices of the King shall by force of any Writ or Commission from the King under the Great Seal in his absence arraign try or condemn any man but by the lawfull judgment of his Peers or by the law of the Land Now this legale judicium parium suorum or lawfull judgment of a mans Peers is and hath alwayes had a two-fold construction in law the one is When a Lord of the Parliament hath committed treason or felony or other capitall offence whereby he is indictable at the Kings Suite there he by vertue of this Charter ought to be tryed by his Peers that is such as are Lords of Parliament that sit there by reason of their Nobility for no Noble-man that is not a Lord of
him in safe custody accordingly And that he doth take care that the said Lilburn do neither contriue publish or spread any seditious or libellous Pamphlets against both or either of the Houses of Parliament To the Lieutenant of the Tower of London his Deputy or Deputies And because this Sentence was conceived not to be severe enough by the Lieutenant of the Tower hee did procure an Order dated Die Mercurii 15. Julii 1646. which followes in these words Die Mercurii 15. Iulii 1646. ORdered by the Lords in Parliament assembled That none shall speak with John Lilburn now a prisoner in the Tower of London but in the presence and hearing of his Keeper And that when he shall desire to take the Ayre within the Tower his Keeper shall constantly goe with him forth and back and stay with him till he return to his Lodging and that if his wife desire to come to him she shall reside with him and not go in and out during his imprisonment in the said Tower And lastly it is Ordered That this restraint of speaking with the said Lilburn shall be taken off when he shall give good Bayle to this House not to contrive write or publish any scandalous or libellous Pamphlets or Papers against both or either of the Houses of Parliament Die Mercurii 16. Septem 1646. IT is this day Ordered by the Lords in Parliament assembled That the Lieutenaut of the Tower of London his Deputy and all others imployed him shall permit and suffer the wife of Lieutenant-Colonell Iohn Lilburn to come to him and reside with him when and as often as he shall desire any former Order of this House notwithstanding Iohn Brown Cler. Parliamentorum We will not say their Lordships are unjust in this Sentence yet we hope it shall not be accounted scandall to them if we say and make it appear that they have erred therein both in manner of proceeding and in substance of matter or point of jurisdiction both of the person and cause for we do presume that their Lordships will not presume an infallibility of Judgment it being a quality incompatible to or with any sublunary creatures and wee finde by our bookes of 21. E. 3. f 46. that a Parliament may and hath erred And first we shall declare their Lordships errour in their manner of proceeding against this worthy Patriot wherein we shall observe That the 10. of Iune he was summoned to attend their Lordships in their house The 11. of Iune he appeared and was then committed by their Lordships to Newgate The 16. of the same moneth he appealed to the Right Honourable House of Commons The 22. their Lordships sent to the Keeper of Newgate to bring him to their Bar And thereupon the 43 day he was committed close prisoner to Newgate being brought by the Keeper of Newgate where he remained close prisoner till the 16 of Iuly At which time his Charge was brought into the Lords House and not before Wherein we are first to note that he was summoned and committed a moneth before his Charge brought in and after his appeal and for that cause made close prisoner 18. dayes before any Charge recorded against him All which proceedings are erroneous and principally in these two points First because he was summoned before his Charge was recorded for regularly both in Law and Equity the Declaration or Bill ought to be filed or recorded before any Writ or Processe ought to issue against the Defendant or Party accused either in civill or criminall causes and the Writor Processe ought to contain the matter of the Declaration or Bill as in a Writ of Right These words Quid clamat tenere import a Count or Declaration recorded so a Writ of Warrantia Diei contains the substance of the Count in a Monstraverunt the Plaintiffs title is set forth by the Writ Nay in every Writ at Common-Law the Writ doth by these words ut dicitur or by some other Emphaticall word contained in the body of the Writ import that a Declaration or Count is filed registred or recorded before the Writ doth issue and this appears clearly in every Writ set forth by the Register and Fitzherberts Natura brevium Nay every English Bill either in Chancery Exchequer or Star-Chamber doth pray that Processe of Sub-paena be awarded against the Defendant which proves that processe ought not to be awarded against any man out of any Court till his charge bee recorded against him in the same Court If this was so in the Justice of the Star-Chamber in criminal causes we hope their Lordships will not condemne it as an Injustice in themselves to follow the same Rules of Right Reason Law and Equity Secondly their Lordships proceedings against him after his Appeal made to the honourable house of Commons were void in Law for by the Appeal to the proper jurisdiction the Lords were outed of their jurisdiction or Connusans of the Plea sublata causa tollitur effectus the Cause being removed by the Appeale their judgment thereby was determined or at least suspended being but the effect of the cause before them till such time as the Appeal is determined the Appeal being a supersedas to their Lordships further legall proceedings in the same cause and wherein they ought not to have proceeded without the privity licence and direction of the house of Commons and therefore all their proceedings since Mr. Lilburns Ap. peal presented to and accepted by the house of Commons are Coram non judice and therefore void and erroneous We shall not deny the Lords house to be a Court of Justice and that of Record too and of the highest degree in the Kingdom co-operating with the honourablt House of Commons but when they are distinct and apart in their severall operations and judgments we do conceive that they neither have a legislative nor unlimitted power of judicature in themselves neither can they proceed to determine any thing out of the way of the known Lawes by any arbitrary or discretionary Rules where there is a known Law in the case Sir Edw Cook doth well set forth the distinct powers of Judicatures of both houses in his 4. part of Institutes p. 23. It is to be known saith he that the Lords in their house have power of Judicature and both Houses together have power of Iudicature which is thus to be understood That the Lords have power of Iudicature over their Members alone viz. their Peers the Nobility of England that sit in the Lords House The Commons have power of Iudicature over all the Commons of England by themselves alone and the Lords and Commons joyning have power of Iudicature over both Peers Lords and Commons That this is true is manifest by the Lord Dacres case p. 26 H. 8. reported by Iustice Spilman where it was resolved that a Noble-man of Parliament cannot wave his tryall by his Peers and put himselfe upon the tryall of the Country for by the Statute of Magna Charta c. 29 every
persons only but also of the persons of men not plevisable and indicted insomuch that they ought not to be oppressed by their Judges or Goalers upon pain of Felony This caused our Author to complain in the time of King Edward the first that those good Lawes were 〈◊〉 in these words It is an abuse that Goalers are suffered to spoyle and oppresse their prisoners or to take ought from them save their Armour and Weapons Nu. 52. It is an abusion that prisoners are put in Irons or to other pain before they are attainted of Felony Nu. 5. It is an abusion to imprison any other man then he that is indicted or appealed of Felony in case he want not pledges or mainpernours pag. 289 And that this was the Law is very clear for that King Alfred did cause Fourty four Justices in one year to be hanged for breach of these Lawes And more particularly the Suitors of Cirencester for that they did detain a man so long in prison that offered to acquit himselfe that he died there as you may find pag. 301. whereby you may clearly perceive that the Liberties of the Subjects of England as touching their persons are not grounded meerly upon Magna Charta but are of a more ancient foundation even in the originall Lawes of the Nation the Statute of Magna Charta being onely a Declaration or Confirmation of those former Lawes which by Divine right and Nature we inherit As Sir Edward Cook in his Proeme to the second part of his Institutes observes These Lawes were gathered and observed amongst others in an intire volume by King EDWARD the Confessor And though that William the Conquerour came in by the Sword yet at the petition of the Lords and Commons of this Realme he confirmed these Lawes unto us for the sake of King Edward that devised unto him the Kingdome as witnesse Matth. Paris and William of Malmesbury which were afterwards confirmed by King Henry the first and enlarged by Henry the second in his Constitutions made at Clarendon and after much blood spent between King John and his Barons concerning them re-established at Running Mead neere Stanes and lastly brought to a full growth and made publique by King Henry the third in the ninth yeare of his reigne though he sought afterwards to avoid both that of his father King John upon pretence of dures of imprisonment and his own by nonage Yet neverthelesse God so ordaining in the 20. year of his reigne he did confirm and compleat the said Charter for a perpetual establishment of liberty to all free-born Englishmen and their heirs for ever ordaining Quod contravenientes per Dominuns Regem cum convicti fuerint graviter puniantur Which is that those that went against these lawes when they were convicted should bee grievously punished by our Lord the King And in the 52. yeare of his reign by the Stat. of Marleb c. 5. this Charter was confirmed by Act of Parliament and hath since been not lesse then 33. times confirmed and established and commanded to be put in execution by severall Parliaments since held This Charter of our Liberties or Freemans Birth-right that cost so much blood of our Ancestors and was so long in the Forge before it could be fashioned being no lesse then 200. yeares under persecution before it was brought to perfection is that brazen wall and impregnable Bulwark that defends the Common liberty of England from all illegall destructive Arbitrary Power whatsoever be it either by Prince or State endeavoured And because it imports us so much we shall recite the words of this Charter as to our present purpose of the vindication of our liberties both of persons estates And first ch 14. it runs thus A Freeman shall not be amerced for a small fault but after the manner of the fault and for a great fault after the greatnesse thereof saving to him his contentment and a Merchant saving to him likewise his Merehandise And none of the said amercements shall be assessed but by oath of honest and lawful men of the vicinage This part of the charter was made in affirmance of the Common Law as appeares by Glanvil l. 9. c. 11. where he useth these words Est autem miserico dia domini Regis qua quio per juramentum legalium hominum de vicineto eatenus amerciandus est ne quis de suo honorabili contenemento amittet In English thus The amercements or mercy of the King ought to be such whereby a man is to be amerced by the oath of lawfull men of the neighbourhood or County in such manner that he may not lose any thing of that countenance or subsistence together with and by reason of his Free-hold For so is the sense of the word taken in the Statute of 1. Edw. 3. cap. 4. and vet n. Br. fol. 11. The Armour and weapons and profession of a Souldier is his countenance And the books of a Scholler So Sir Edward Cook 2. part of Instit pag. 28. Amercements ought to be assessed by the equals of him that is amerced So is the expresse Book of 7. H. 6. fo 12. in Dett Fitz. Herbert Nat. Brev. fol. 73. And in case where a man is amerced he ought not to be imprisoned as appeares 11. H. 4. fol. 55. The intent of which clause of the Great Charter is That no man should be tried but by his Equals as more fully appeares cap. 29. where it is thus enacted No Freeman shall be taken or imprisoned or disseised of his Free-hold or Liberties or free Customes or be out-lawed or exiled or any otherwise destroyed nor we will not passe upon him nor condemne him but by lawfull judgement of his PEERES or by the law of the land In these few words lies conched the liberty of the whole English Nation This word liber Homo or free Man extends to all manner of English people as appears Stamf. Pl. Coron pag. 152. In these words of this Charter before recited there are these 6. particulars First That no man shall be taken or imprisoned but by the law of the land Secondly That no man shall be disseised dispossessed sequestred or put out of his Free-hold that is lands or lively-hood liberties or free Customes but by the Law of the Land Thirdly No man shall bee Out-lawed but by the Law of the Land Fourthly No man shall bee exiled but according to the Law of the Land Fifthly That no man shall be in any sort destroyed unlesse it bee by the law of the land Sixthly No man shall be condemned but by a lawfull judgement of his Peeres or by the law of the land Where first it is to be noted that these words By lawfull judgement of his Peeres or By the law of the land are Synonyma's or words of equall signification and that the law of the land and lawfull judgement of Peeres are the proprium quarto modo or essentiall qualities of this Chapter of our great Charter being communicable omni
their liberty then whlle they have continually maintained it And having once gotten possession of their ancient rights they will watch them so carefully and with such strength and vigour as that they will hardly be surprized again or their rights any more wrested from them As it fell out in the case of the Romane State when the Romanes having freed themselves of the government of the Tarquins their hertditary Kings the Nobility began to take upon the the rule of the people by the exercise of the like or greater tyrany the the Tarquins had done the people being inforced by a necessity of their preservations created Tribunes as Guardians of the publick liberty whereby the insolence and Arbitrary power of the Nobilty was restrained and the people re-estated in their ancient liberty which continued inviolable to them for the space of 800. yeares after 300. yeares oppression of the Nobility to the great honour and renown of their Nation and exceding enlargement of their Common-wealth Now as concerning the liberty which the people of this Common-wealth doe and of right both divine and humane ought to challenge it consists of these particulars following Liberty of conscience in matters of Faith and Divine worship Liberty of the Person and liberty of Estate which consists properly in the propriety of their goods and a disposing power of their possessions As touching liberty of Conscience it is due of Divine right to the people of God since that the conscience is a Divine impression or illumination in the soule of man which God instills into the heart by faith whereby man is instructed to worship him in Spirit and Truth and it is as it were the ingraven Character of the mind wil of God in the soul of man not passive nor consisting of bodily substance therefore it is not to bee constrained or inforced to submit to any other rule then what the Creator by his revealed will according to the Scriptures hath imprinted in it And for that cause is onely to bee accountable to him whose image it is as being the onely competent Judge of his owne will As touching the liberty of our persons That is founded not onely in Divine Law but in Nature ulso and as protected by the municipicall and known Lawes of this Kingdom For as God created every man free in Adam so by nature are all alike freemen born and are since made free in grace by Christ no guilt of the parent being of sufficiency to deprive the child of this freedome And although there was that wicked and unchristian-like custome of villany introduced by the Norman Conquerour yet was it but a violent usurpation upon the Law of our Creation Nature and the ancient Lawes of this Kingdome and is now since the clearer light of the Gospel hath shined forth by a necessary harmony of humane society quite abolished as a thing odious both to God and man in this our Christian Common-wealth Now that the liberty of mens persons hath ever been a thing most pretious in the eyes of our Ancestors and right deare and of most tender regard in the consideration and protection of the Law if we doe but consider the originall Lawes of this Realme the proceedings of our Ancestors in the Acquisition and defence of their just liberties and the continuall vigilance of them in making and ordaining good Lawes for their necessary preservation we shall easily find that there hath not been any earthly thing or more weighty and important care to them then the preservation of their Liberties To prove this Andrew Horn a learned man in the ancient Lawes of this Kingdome in his Booke called The Marrow of Justice written in the reigne of King Edward the first fol. 1. saith That after God had abated the Nobility of the Brittons 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 Almaigne to conquer this Land of which men there were fourty Soveraignes which did rule as Companions and those Princes did call this Realme England which before was named The Greater Britaine These after great warres tribulations and pains by long time suffered did choose amongst them a King to reigne over them to governe the people of God and to maintain and defend their persons and their goods in quiet by the Rules of Right and at the beginning they did cause him to sweare to maintaine the holy Christian Faith and to guide his people by right with all his power without respect of persons and to observe the Lawes And after when the Kingdome was turned into an Heritage King Alfred that governed this Kingdome about 174. yeares before the Conquest did cause the great men of the Kingdome to assemble at London and there did ordain for a perpetuall usage That twice in the yeare 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 judgements In which Parliament faith our Authour 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 Ordinances we find That no man should be imprisoned but for a capitall offence And if a man should detain another in prison by colour of right where there was none till the party imprisoned died hee that kept him in prison should bee held guilty of murder as you may read pag. 33. And pag. 36. hee 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 that is adjudged to doe penance shall be surcharged by his Goaler with Irons or other pain whereby he is deprived of his life And pag. 140. That by the ancient Law of England it was Felony to detain a man in prison after sufficient Baile offered where the party was plevisable Every person was plevisable but hee that was appealed of Treason Murder Robbery or Burglary pag. 35. None ought to be put in the common prison but onely such at were ATTAINTED or principally APPEALED or INDICTED of some capitall offence or ATTAINTED of false and wrongful imprisonment So tender hath the ancient Lawes and Constitutions of this Realme been of the liberty of their Subjects persons That no man ought to be imprisoned but for a Capitall offence as Treason Murder Robbery or Burglary And if for these offences yet ought he to be let to Baile which to deny were felony in case the prisoner were plevisable which is if he were not appealed indicted or attainted Nay you see it was Felony to detain a man in prison by colour of right when there was none Neitherwas the law tender of the persons of Innocents bailable
soli semper to all and every clause thereof alike Therefore we are to examine declare and publish to the world what this Legale judicium or Lexterrae this lawfull judgement or law of the land is and hath alwayes been taken to bee That the Free-borne subjects of this Kingdome may not dwell in the shade but that they may be able to understand them with clearnesse and perspicuity and to demand them with force and vigour as our Ancestors in times of old have in like case done To make a cleare demonstration whereof we will follow the order of the six Particulars before mentioned to be emergent out of this Charter of our liberties And first touching our caption and imprisonment Nullus liber homo capiatur aut imprisonetur nisi per legale judicium Parium suorum vel per legem terrae Let no freeman of England which is every man born in the Realm be taken or imprisoned but by lawfull judgement of his Peeres or the law of the land This is the context of this clause Every Arrest or Attachment is comprised within it See Cook 2. part Instit pag. 46. What the Law was before the making of this Law we have in part declared already we shall onely adde this That imprisonment without lawfull cause was so odious that among the lawes of King Alfred cap. 31. wee find this Qui immerentem Pagaum vinculis constrinxerit decem solidis noxam sarcito If a man should unjustly imprison a Pagan or a Heathen man hee should redeem his offence with the payment of ten shillings no small summe in those dayes This is a perfect badge of liberty by our lawes Let us now examine what it hath been since by the Stat. of 25. E. 3. cap. 4. It is ordained That none from henceforth shall bee taken by petition or suggestion made to our Lord the King or to his Counsell unlesse it bee by Indictment or Presentment of his good and lawfull people of the same neighbourhood where such deeds be done in due man-manner By the Stat. of 25. E. 3. cap. 3. No man shall bee imprisoned without being brought to answer by due processe of law By the Stat. of 4◠E. 3. c. 3. It is accorded for the good Governance of the Commons That no man bee put to answer without presentment before Justices or matter of Record or by due Processe or Writ Originall according to the old law of the land And if any thing from henceforth be done contrary it shall be void in law and holden for error We need not cite the Petition of Right or other Acts of Parliament mentioned in our former Treatise for vindication of Liberty against Slavery Let us now examine the Responsa prudentū upon these Statutes and the Judgements given by those Sages 45. Ass Plea 5. Fitzherbert Title Assise nu 346. wee find that the Bayliffe of Chensford in Essex was indicted before Knevet and Thorp by vertue of a Commission of Oyer Terminer for imprisoning a man taking his goods by vertue of a Cōmission out of Chauncery which he pleaded in his justification The resolution was That the Cōmission and imprisonment were against law to take a man his goods without indictment or suit of the party or other due processe of law 33. E. 3. Fitzh title Trespasse 253. It is declared for Law That the Command of the Lord is not a sufficient warrant to one to take his villeine without due processe of law May 16. H. 6. Fitz. Monstrans de faites nu 182. It is declared for Law That if the King cōmand a man to arrest one and the party doth it in his presence the arrest is unlawfull the party arested may have his action of false imprisonment 24. E. 3. fo 9. Be. faux Imprisonment 9. You may find that a Commission was directed to men to take divers notorious Felons before they were indicted and this Commission was adjudged void in Law We need not mention the resolution of the Judges in this point of Liberty you may find it reported by Sir E. Cook in his Reports 9. Ja. f. 66. There are a thousand cases more cited in our books of law to prove this undeniable truth out of which we only cited these to inform the free Subjects of England That neither the King by his command or commission nor his Councell nor the Lord of a Villayne can or could imprison arrest or attach any man without due processe of law or by legall judgement and law of the land against the forme of our defensive Charter of Liberty no not a Pagan or Heathen could be unjustly imprisoned or arrested without due processe of Law But to discourse here the manifold imprisonments of the free-born people of this Kingdom contrary to their Birth-right this Free Charter and contrary to the known lawes of this Realm or to shew forth all the illegall processe whereby men are now adayes arrested attached or imprisoned contrary to this Charter and the lawes before recited as Latitats Capiats pro debito Attachments and Messengers would be infinite and require a volume Which is worth the making by it selfe Onely thus far we may be bold to demand by what Law Statute or other legall power the Committee of Examinations Committees of Excise and Sequestrations nay all Committees nay more their Sub Committees take upon them to commit to prison nay without Baile or Mainprise the free-born Subjects of this Kingdome without lawfull processe triall or conviction and most manifestly against the law of the land For if those whom we have elected to sit at the Helme of the government for us as our Trustees for preservation of our Liberties be by right of their places Judges we are sure they cannot depute their Authorities For a Judge cannot delegate his power to another nor make a Deputy to judge for him And this appeares by the Books of 2. H. 6. f. 37. 9. E. 4. f. 31. 41. 10. E. 4. f. 15. 11. E. 4. f. 1. I am sure wee have not sent them thither and given them the places of their trust to Them and their Assignes therefore their Committees or Assignees cannot execute their Judiciall power which as to the matter of imprisonment is one and the chiefest of their Judicial powers so it bee according to due processe of Law But wee will not wrong these Noble Patriots the Commons of England whom wee have chosen to be the Guardians of our Liberties either to suspect them not to be our competent Judges and Judges of Record too or that they intend to commit our liberties to their committing Commities since that by deputing such Committes and investing them with their own powers it argues the givers rather to be Ministeriall then Judiciall Officers We come now to the second particular which is That no man shall be desseised of his Free-hold or Liberties or free customes but by lawfull judgement of his Peeres or by the law of the land We need not insist
long upon this particular it being so plain and cleare in it selfe Onely wee will remember that which that learned Father in the Law Sir Edward Cook 2. part Instit pag 46. saith upon this clause viz. Hereby is intended that Lands Tenements Goods and Chattels she ll not bee seized contrary to this great Charter and the Law of the Land Nor any man shall bee disseised of his Lands or Tenements or dispossessed of his goods or chattels contrary to to the law of the land Wee may safely adde That neither King nor State ought to seise sequester plunder or take away any mans goods chattels trade lawfull calling or office before the party be lawfully indicted or convicted of an offence by due processe of Law tryall of Jury and lawfull Judgement by the law of the land Neither ought any man to be disseised or put out of his Lands Tenements or Freehold by suggestion or petition to the King or his Councell unlesse it be by presentment or indictment of his good and lawful people of the neighbourhood That thisis as clear as the Sun at noon-day Read these three Statutes of 5. E. 3. cap. 9. 25. E. 3. c. 4. 28. E. 3. c. 3. And the books of 43. Ass Pl. 21. These referre to sequestring seising or desseising rather of Lands Tenements and Free-hold of the free subjects of England For the defence of our goods not onely this great Charter but also the Book of 43. E. 3. fo 24. 32. 44. Ass Pl. 14. 26. Ass Pl. 32. 7. H. 4. fol. 47. Cook 1. Reports fol. 171. 8. Reports fol. 125. Case of London Where the case was K. H. 6. granted to the Corporation of Dyers within London power to search c. And if they found any cloath died with Logwood that the cloath should bee forfeit And it was adjudged in Trin. 41. Eliz. in this case That this Charter for seising of such cloath was against the Law of the land and this great Charter because no man ought to have his goods taken away from him before conviction Nay if he were accused or indicted of Felony or Treason yet his goods ought not to bee seised upon or taken away from him before he be attainted or convicted according to the Law of England upon pain to forfeit the double value as appeares by the Statute of 1. R. 3. And although Treason is not mentioned within that Statute but Felony onely yet Sir Edward Cook Instit part 3. fol. 228. saith that Regularly the goods of any Delinquent cannot be taken and seised before the same be forfeited Neither is this a new opinion but the law ever was and still is so as Bracton l. 3. fol. 136. witnesseth in these words Qui pro crimine vel felonia magna sicut pro morte hominis captus fuerit imprisonatus vel sub custodia detentus non debet spoliari bonis suis nec de terris suis disseisiri sed debet inde sustentari donec de crimine sibi imposito se defenderit vel convictus fuerit quia ante convictionem nihil forisfacit Et si quis contra hoc secerit fiat Vic. tale brev Rex Vic. salute Scias quod provisum est in Curia nostra coram nobis quod nullus homo captus pro morte hominis vel alia felonia pro qua debeat imprisonari disseiseatur de terris tenementis vel catallis suis quousque convictus fuerit de felonia de qua indictus est c. In English thus Where any man for a crime or great felony as for murder shall be taken and imprisoned or detained under custody he ought not to be spoyled of his goods nor disseised of his lands but ought to be maintained of the same untill he shall acquit himselfe of the crime charged upon him or shall be convicted thereof because Before conviction he shall forfeit nothing And if any man shall doe contrary to this course let there be made out to the Sheriffe such a Writ following THE KING to the Sheriffe greeting Know thou that it is provided in our Court before us that no man taken for the death of a man or other felony for which he ought to bee imprisoned ought to be disseised of his Lands Tenements or Chattels until he shal be convicted of the Felony whereof hee is indicted c. In which words Qui pro crimine Sir Edw. Cook is of opinion that Treason is included as also Quia ante convictionem And that the Act of Magna Charta c. 29. extends to treason as well as to Felony or other Delinquency The Writ aforementioned you may find in the Register among the Originall Writs By all which Statutes and Book-Cases and a thousand more testimonies to be produced it is more then cleare That neither Sequestration Seisure nor taking or spoiling a man of his lands or goods ought to be till hee bee lawfully indicted and convicted by triall of his equals according to the law of the land But we have done with this particular wee come now to the next which is the third and that is No man ought to bee out-lawed by the Law of the Land This word Outlary signifieth The putting of a man out of the protection of the Law either in Criminall or Civill causes and it is of two kindes Legall and Illegall A legall outlary is when the party is duly indicted or summoned to appear and makes default at the return of the Writ of Summons and then by due processe of Law is pronounced an Outlaw in the County-Court by the Coroners of the County where he doth inhabit Which proceeding is according to the law of the land because it is done by his Equals And if he be duly out-lawed of Treason Murder or Felony it is a conviction in law till he appear plead to the indictment and pray his Writ of error to reverse the outlary which ought to be allowed him upon his appearance Illegall Outlaries in Civil Causes are where men are not duly summoned and a false Returne made by the Sheriffe whereby processe of Law is unduly awarded against him till he be outlawed In both which cases he forfeits his goods and chattels and the profits of his lands till the outlary bee reversed There are other sorts of illegall outlaries in effect which are putting men out of protection of the law which are unlawfull prohibitions and injunctions whereby men are enjoyned and stayed from prosecuting their rights suits or actions in any of his Majesties Courts of Justice Or when men under any pretence of incapacity by delinquency are not permitted to sue or have right denied them by any Judges or Justices these are in effect outlaries For every Outlary carries with it an incapacity to sue for a mans right or for wrong done in any personal or mixt action As Littleton in his chapter of Villenage affirmes and as you may find 2. 3 Ph. Mar. Dier 114. 115. Now it is all one to be put out of
the Parliament or any other that sits in the Lords house by Writ Et non ratione nobiliatis can be a tryer of a Lord of the Parliament or challenge this priviledge of tryall in case of Treason Fellony or other capitall offence But a Noble-man of the Parliament shall not have this priviledge either upon an Indictment of Praemunire or upon an Appeale of Fellony at the suit of the party or in any Civill-Action either concerning the right of Lands or of other Possessions or in any personall Action brought by a Common-person against a Lord of the Parliament as appeares unto us by the Bookes of 1. H. 4. f. 1 13. H. 8. f. 12. 10. E. 4. fol. 6. This tryall of Noble-men by their Peers at the Kings Suit is not upon Oath as in the case of common persons for the Peers are not sworn before the Lord Steward before whom this tryall must bee had but they are to be charged by the Lord Steward super fidelitatibus ligeantiis Dom. Regi debitis that is upon their faith and allegeance due to the King and if they acquit the Peer or Noble-man upon whom they passe the Entry is Willelmus Comes E. cateri Antedicti pares instâ—nter super fidelitatibus ligeantiis dicto Dâ—m Regi debitis per praefaruÌ„ SenescalluÌ„ ab inferiori usque ad supremum separatim examinati dicunt quod Wil. Dom. Dacre nox est Culp and so was the Entry in the case of the Lord Dacres 26. H. 8. Spilmans Reports and Cookes Instit 3. part p. 30. If a Noble-man be indicted of Treason Felony or Murder and cannot be found he shall be outlawed by the Coroners of the County and in case of Clergy no Noble-man shall have more priviledge then a common-person where it is not specially provided for them by Act of Parliament as by Stamford pl. Cor. p. 130. is made manifest out of all which we gather that a Nobleman hath this priviledge of tryal as well per lege terra as by this Charter and that anciently legale judicium parium or lawfull tryall of Peers for all manner of persons aswell Noblemen as Commons was vere-dictum duodecim proborum legalium hominum de vicineto a verdict of 12. good and lawfull men of the Neighbour-hood that is of the Commons of England so still remains saving only in this excepted case by the Great Charter which shewes that there can be no legale judicium or lawfull judgment but it must be per legem terrae or according to the Law of the Land which is the other branch of this judgment as to the Commons of England Now to prove that legale judicium parium or lawfull judgment of a mans Peers or Equals is by verdict of 12. men and not otherwise for the word Peers vinvocally signifies both Let us consult both the judgment of Parliaments in this point and the fundamentall lawes of the Land And first for the opinions of Parliaments in this point we finde that by the statute of 25. E. 3. c. 4. None shall be taken by petition or suggestion made to our Lord the King or to his Councell unlesse it be by indictment or presentment of his good and lawfull people of the same neighbour-hood 42. E. 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 or matter of Record or by due processe and Writ originall according to the old law of the Land and if any thing be done froÌ„ henceforth contrary it shall be void in law and holden for errour and to say one word for all there are above 50 statutes now in print and in force that warrant this tryall or legale judicium parium suorum or tryall by a mans Equals or Peers made since the Great Charter in severall cases the citing of which statutes for prolixity we avoid And that this manner of tryall was the old law of the Land wee are here to make it appear that this manner of tryall is according to the law of the Land and that there is none other wherein we are to observe this distinction that this legale judicium or lawfull judgment is two-fold The one is of the matter of Fact The other is of matter of Law That which is of matter of Fact is to be tryed per legale indicium parium or a lawfull tryall of a mans Peers That which is of matter of Law is to be tryed by the Judges or Justices of the Land authorized thereunto by the Kings lawfull Commissions To prove that there is no other lawfull Judgment of our Peeres or Equals As touchiug the matter of Fact we are to examine the foundation of this Common-wealth and the originall constitutions thereof We find that King Alfred having reduced this Kingdome of England into an Entire-Monarchy divided it into 38. Counties and each County into severall Hundred and Mannors The Counties were put under the government of Earles who substituted under them Viscounts or Sheriffes for the quiet government of the people the Hundreds and Mannors subordinately under the severall Lords of them The Sheriffes had two Courts to wit the Sheriffes-Tourn and the county-County-Court The first for offences against the peace of the Land The latter for entry and determination of civill-civill-causes between party and party In the first indictment or presentment of offences was made per-Enquest that is by Juries In the second the Free-suiters that is men of the neighbor-hood The like was done in the leets or viewes of Frankepledge and Hundred-Courts in the Hundreds The like proceedings was in the Leets and Court-Barons of Mannors in those Courts There was no condemnation or judgment given but by the Enquirie of good and lawfull men of the neighbor-hood This every book of the Law tells us for more particular satisfaction read Horn f. 8. and fore-ward These Courts were formed after the modell of the greater Courts of the Realme the Kings-Bench and Common-pleas where greater jurisdiction was as to the matter to be enquired of but no variation originally in the manner of proceeding only the jurisdiction of the Court of Kings-Bench and Common-Pleas in tryals of actions ad dampnum 40. s. flowed over the whole Kingdome The other Courts were confined to their severall limits and might not exceed 40. s. damages these were the originall Courts of the Kingdome and the legale judicium parium or lawfull judgment of Peers was only tryall by Jury of Equals before this great Charter From which tryals this clause is inserted into it and by an inviolable right of law continues in force even to this day as every free subject of England by experience knowes and as every book of our law proves into us the verdict of the Jury in criminall causes being the judgment of Attainder and in civill causes a condemnation as Stamford pl. Cor. p 44. and ali other bookes prove And to leave every man without
scruple in this particular we finde by the statute of Westm the 1. c. 12. That in case of Felony those that refuse upon their arraignment to put themselves upon the Enquest shall be put to pennance for t dure which is stoned or pressed to death because they refuse as the statute saith to stand to the Law of the Land And yet if the party accused stand mute and will not put himselfe upon the Enquest the Judge ought to examine the evidence and to enquire by the Iury whether he were mute of malice or by the Act of God before he shall give judgment against the Prisoner so tender is the Law of the Land of the life of every man that if an Offendor would wilfully cast away his life by contumacy yet he ought not to be condemned but per legale judicium parium suorum or lawfull verdict of a Jury which is according to the Law of the Land this appeares by Stamf. pl. Cor. p. 150. a b c d. Cookes Instit p. 2. part page 178. and so from this legale judicium parium or lawfull judgment of Peers or Equals we come to declare to the free-born subjects of England what this lex-terrae or Law of the Land is And first we say that this lex terrae or law of the Land is the absolute perfection of reason as Sir Edw. Cook 2. part Instit page 179. saith Secondly it is the law of England and therefore all Commissions made to the Judges of the Land run thus That they in all cases that come before them facturi sunt inde quod adjustitiam pertinet secundum legem consuetudinem Angliae the Judges by their Commissions are to judge and act only that which to iustice belongs according to the law of the land and custome of England as 2 part of Cooks Instit p. 51. and dayly experience tells us Thirdly it consists of the lawfull and reasonable usages and customs received and time-out-of-mind observed and approved by the people of this Kingdome for if a custome or usage be not lawfull it ought not to bind Quod ab initio vitiosum est non potest tractu tempor is convalescere saith Vlpian l. 29. Course of time amends not that which was naught from the first beginning and in Jur. Reg. v. 2. q. 117 art 1. non firmatur tractu tempora quod de jure ab initio non subsistat That which was not grounded upon good right is not made good by continuance of time and they must be reasonable too so is Augustines opinion in his Book de vera Religione cap. 31. mihilex essenon videtur que Justa nonest It seemes saith he to me to be no law at all which is not just It must likewise be received and approved by the people Therefore Ulpian F. de leg 32. Leges nulla alia causa nos tenent quam quod judicio populi receptae sunt the lawes doe therefore bind the Subject because they are received by the judgment of the Subject and Gratian in Dec. distinct 4. Thum demum humane leges habent vim suam cum fuerint non modo institutae sed etiam firmatae approbatione Comunitatis It is then that humane Laws have their strength when they shall not only be devised but by the approbation of the people confirmed Fourthly this law of the land consists of the antient Constitutions and moderne Acts of Parliament made by the Estates of the Realme but of these only such as are agreeable to the Word of God and law of Nature for as Gregory de valentia Ex Tho. q. 93. art 3. q. 94. art 34. well observes Humane law is a righteous Decree agreeing with the Law naturall and eternall and Augustine de libero Arbitrio cap. 36. nihil justum est atque legitimum quod non ab aeterna lege sibi homines derivaverint there is nothing just and lawfull which men have not derived unto themselves from the law eternall And Horn cap. 5. sect 1. saith That torvous usages and unjust decrees not warrantable by Law nor sufferable by holy Scripture are not to be used or obeyed Out of all which premises wee conclude that the Law of the Land is the Law of England the perfection of reason consisting of lawfull and reasonable Customes received and approved by the people and of the old Constitutions and modern Acts of Parliament made by the Estates of the Realme and such only as are agreeable both to the law eternall and naturall and not contrary but warrantable by the Word of God whatsoever laws usages or customes are not thus quallified are not the law of the land nor are to be observed or obeyed by the people as being contrary to their Birth-right and the freedome and liberty which by the law of God the lawes of the Land and this great Charter they ought to enjoy The summe of all is that according to this Charter the statute and lawes afore-mentioned no man ought to be taken or imprisoned or disseized of his free-hold liberties or free-customes or out-lawed or banished or my manner of way destroyed nor condemned but by lawfull tryal of his Peers or Equals or by the law of the Land that is by due processe of Law by presentment or indictment of good and lawful men where such deeds he done in due manner or by Writ originall at the Common-law according to the old law of the Land Here we will answer an objection that we heare is made which is that this is an old Law and many lawes have been made against it since it was granted which weaken the strength of this Charter To this we answer That by the Statutes of 28. E. 1. called Articuli super Cartas 25. E. 1. vet Magna Charta fol. 137. and 37. called confirmatio Chartarum It is provided That if any judgment be given against any points of this great Charter or the Charter of the Forrest by any Iustices of the King or other his Ministers it shall be undone and holden for nought and by the statute of 42. E. 3. cap. 1. all Statutes made against Magna Charta are repealed True it is we find that 11. H. 7. c. 3. by the practises of Empson and Dudley there was a statute made in the face of this great Charter whereby many exactions and oppressions were put in practice upon the free subjects of England to their great trouble and vexation but Oh! for the like justice now and if it were not what would become of all our Ship-money Judges monopolizing Pattentee Merchants and arbitrary Committee-men we find withall that they were hanged that put it in execution and in the 1. H. 8. c. 6. That illegal Statute of 11. H. 7. was repealed and made void and the cause specified to be because it was against this Great Charter and the law of the Land but to put all out of doubt These clauses of the Great Charter which we have discoursed upon hitherto are all
able to relieve them wishing them to provide for their own safety as we read Livy Decad. 1. l. 3. Therefore it never turnes to a States advantage to gaine the peoples hatred the way to avoid it is to lay no hands on the Subjects estates How many flourishing States have been ruined by the Avarice Pride Cruelty and non-observance of the lawes by the Governours The people of Athens being sore urged with a War by Darius from Persia in their great distresse chose Critias Theramenes 28. others to be their Governours They were elected first to compile a body of their Law and put in practise such antient Statutes as were fit to be put in practise to this charge was annexed the supream Authority either as a recompence of their labours or because the necessity of time required it These Governours in stead of making or observing the laws fell to spoyle the people of their lives and goods by new lawes and arbitrary proceedings this was hatefull to the people the end was Thrasibulus and 70. others conspired against them and cut them off and restored the people to their former libertie The Governour of the Eleans held a strict hand over their Subjects and oppressed them The Subjects being in despaire called in the Spartans to their reliefe who had no just cause of quarrell but only an old grudge and by their help freed all their Cities from the sharp bondage of their naturall Lords The Estate of Sparta was grown powerfull and opprest the Thebans The Thebans though but a weak State yet desperate of their suffering by the help of the Athenians found means to free themselves of their cruell yoke These examples and divers others we finde of the fall of the free Estates of Greece recorded by Sir Walter Rawleigh in his 3. book of the History of the world The forceable causes of the ruine of the State of Carthage in Africa which once contended with Rome for the Dominion and Soveraignty of the World were Avarice and Cruelty Their Avarice saith Regius was shewed both in exacting from their Subjects besides ordinary Tributes the one half of the profits of the earth and in conferring of Offices not upon Gentlemen and mercifull persons but upon those who could best tyrannize over the people to augment their treasures Their cruelty appeared in putting men to death without mercy or justice contrary to their Lawes Wee read in Guicciardine that Pisa revolted from and maintained 10. years sharp Wars against the State of Florence and would not submit to her yoke by reason of the hard impositions laid upon her by the Florentines but chose rather to put her self under protection of Lewis the 12. of France a forraign and an hard master We know that an imposition of the tenth penny upon the Inhabitants of Holland and the execution of arbitrary government by the Duke of Alva lost the Dominion of the Netherlands to Philip the second King of Spain Wee could tell of the often revolts of Genoa from the Kings of France of Siena Lacquis Modena Regia Vincensa Padua Crimona Millain and other Towns and Provinces of Italy from the States whereon they have depended even from Venice that only free State well governed in the world by reason of the avarice cruelty pride and injustice of their Governours We could tell you how the Duke Valentinois or Caesar Borgia lost his new Conquests in Italy by his pride and cruelty over the vanquisht people We could remember how Alphonso and Ferdinand Kings of Naples lost their dominions and lives by their extream tyranny over the Nobility Gentry and Subjects of their Realm We could tell you how the Syracusians Leontines and Messenians and other States of Sicillie were stripped of their Dominions and fell into the hands of their neighbours the Romanes by their great cruelty to their own Subjects Wee could find particular instances and examples in all Empires Kingdomes and free States that have been since the Creation of the World that the Princes and Governours for their tyrannie and not due observing the Lawes of their Countries have been banished expelled and put to death by their Subjects Ye know well enough that Rehoboam lost 10. Tribes for an harsh answer to a petioning people 1 King 12. 9. We could give you some Scriptual-examples of free-States but that we find none mentioned there but conclude that there was never any State more glorious more free more carefull of preserving it self then that of Rome and yet she fell too and never recovered her former libertie The Romanes out of a fore-sight that her ruine would come upon her by the oppression and avarice of her Governours made a Law de repetundis or of recovery against extorting Magistrates yet it served not to restrain their Provinciall Governours though it relieved the Citizens at home which was one of the two causes of Romes ruine for as Machiavel in his Discourses upon Livy l. 3. c. 34. observes that these two things were the causes of that Republiques dissolution the one was Contentions which grew upon the Agearian Law or partition of conquered Land among the Citizens the other was the prolonging of Governments viz. Dictatorships Consulships Generalships Tribuneships of the people and such like great Offices for by these meanes those great Officers had meanes and power to raise armes against the liberty of the people Sylla and Marius by this meanes could find Souldiers to take their part against the Publique and Iulius Caesar could find meanes hereby to make himself Lord of his native Country and Country-men These things we alleadge not as if we suspected any of you O ye noble Patriots to be guilty of any of these crimes that may either hazard the continuing of the present Government or destroy the publike liberty but to awake you and put you in mind to provide fit remedies against these growing evills whereby you may procure safety and peace to the Common-wealth and everlasting honour to your own Names and Posterities for they are to be thought worthy of honour not which begin but well end honourable Actions And we beseech you not to take it in ill part from us 〈◊〉 we offer our humble advices to you in these particulars â—â—nce we the people conceive it our duty to shew unto our Governours that good which by reason of the malignity of the times and of fortune we have not been able to do our selves to the end that you our Senators being given to understand thereof some of you whom God shall more favour may put it in practise for the publike good Neither is our opinion to be despised For it is a sure Maxime that the people are of as clear judgment in all things that conceive the Publique as any and is wise and circumspect concerning their liberties and are as capable of the truth they heare We know that Common-wealths have never been much amplified neither in dominion nor riches unlesse only during their Liberties for it is no mans particular