than he gave contrary to the opinion of all Lawyers that say All Acts of Parliament are to be expounded for the benefit of the Subject And what and how did he gain but contrary to his Honour much more to his Grace when two more of his subjects were hedged in by this Act as Pledges to pay for his undone Debtor and to undoe themselves and their families by the bargain And their estates being too little to pay their own debts their Creditours must see the King first served our of the same to their no small prejudice if not undoing whereby many are injured through one mans occasion If therefore this Act ought to be construed for the honour of the King and benefit of the subject as I believe it ought and the L. C. saith others have thought so it followeth That the Statute of the 33. Hen. 8.9 was made as many more were before and since against Mag. Chart. and not onely against Kings honour and grace but also their Oathes to the undoing of multitudes of their subjects which was ungracious for their Counsel learned in the Laws to give advice or assent to the making such Laws or when made to allow them much more to maintain them being that all Judges are to receive Mag. Chart. for a Plea against all Statutes made against it And all Judgements given against Mag. Chart. are and ought to be void as appeareth in the L. C. preamble And all such Statutes as were made before the 42. of Ed. 3. against Mag. Chart. were then replealed and as I conceive all made so since are repealed by the Petition of Right 3. Car. that restored Mag. Char. to its primitive vigor and consequently enervated all its opponents The City of London shall have the old Liberties Cap. 9. London c. and customs which it hath been used to have Moreover We will and grant that all other Cities Burroughs Towns and the Barr ons of the five Ports and all other Ports shall have their Liberties and Free-customs This Chapter saith the Lord Coke is excellently interpreted by an ancient Author quoting the Mirrour in the Margent who saith L. C. upon M. C. fol. 20. that by this Chapter the Citizens of London ought to have their Franchizes whereof they are inheritable by loyal Title of the gift and confirmation of the Kings which they have not forfetted by any abuse and that they shall have their Franchizes and Customes which are sufferable by right and not repugnant to law And the same interpretation serveth for the Cinque-ports and other places Expost and Quer. Doth not this Charter and chapter sufficiently declare and Lawyers though unwillingly yet plainly confess that London and the rest had old Liberties and customes and that they are inheritable thereof and ought still to have the same so long and so far as not repugnant to Law which I conceive to be this Law and not any that have been made since against it And do not the several Charters of London and other Cities and Towns obtained since this Law declare further what those Liberties and Customs were And if the Kings learned Councel have consented that he should grant or Professors of the Law advised Londoners or any other Citizens to ask things repugnant to this Law and prevailed with both parties Have they not misled both parties And though they have so done often yet in this case doth not the Statute of the 19th of Henry 7. chap. 7. help the offendors with less danger than the forfeiture of their Customs and Liberties if they offend especially but in those points which their lawyers so much misadvised them to ask and the Kings him to grant Common-Pleas shall not follow Our Court Ca. 11. Common Pleas. but shall be holden in some place certain Before this Statute saith the Lord Coke Common-Pleas might have been holden in the Kings-Bench L. C. upon M.C. fol. 22 23. and all Writs returnable unto the same Bench And because the Court was holden coram Rege and followed the Kings Court and removable at the Kings will the Returns were Ubicumque suerimus in Angliâ whereupon many discontinuances ensued and great trouble of Jurors charges of Parties and delay of Justice for this cause this Statute was made c. And Pleas of the Crown were divided into high Treason Misprision of Treason Petty Treason Fellony c. and limited to this Court because contrà coronam dignitatem c. So that of these the Lord Coke saith the Common-Pleas cannot hold Plea But to shew that Common-Pleas may be holden in the Kings-Bench he saith That the King is out of this Statute and may sue in that Court Secondly if a man be in Custodia any other may lay upon him any Action of debt covenant or the like personal Action because that he that is in Custodia ought to have the priviledge of that Court And this Act taketh not away the Priviledge of any Court. Thirdly any Action that is Quare vi Armis where the King is to have a Fine may be sued in this Court Fourthly Replevins may be removed thither Fifthly saith the Lord Coke Albeit originally the Kings-Bench be restrained by this Act to hold Plea of any Real action yet by a mean they may as when removed by writ of Error from Common-Pleas thither for necessitie lest any party that hath right should be without remedie or that there should be a failer of Justice and therefore Statutes are alwaies to be expounded so that there should be no failer of Justice Expost and Quer. Do not the L. C. words viz. Before this Statute c. imply that after the Statute Common-Pleas ought not to be holden in the Kins-Bench nor all Writs be returnable into the same Beach Doth the Register or Natura brevium therefore shew any Writ for debt returnable to the Kings-Bench Doth not Fitz. H. natura brevium fol. 119. h. k. declare that there is no Writ in Law for debt but a Justicies which is a judicial Commission to the Sheriff to determine the matter Nè amplius indè clamorem audiamuus So that the Kings-Bench ought not to be troubled with the matter at all or if an Original returnable to the Common-Pleas Doth not that Original declare it self to be a Summons And doth not Mr Kitchen in his Ret. brev fol. 4. Tit. com bank declare that Summons Atachment and Distringas succestively distant fifteen days one after another is the onely Proces at Common Law The Kings-Beach and Common-Pleas ought to practise by the Common Law declared by Mag. Chart. and accord of the King and People declared and injoyned to be observed inviolable and immutable for ever Did ever any Judge of the Kings-Bench or Common-Pleas advise or consent to the making any Statute or Law to the contrarie being sworn to execute and maintain Mag. Chart. as anon shall appear all were or ought to be and was not perjured Did or doth any
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
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 Libertiâ—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 dorâ—â— et follow that he resumed all Pleâ—â— 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. Wearâ— 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. Cokâ— 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
to the Party Perjurious in the Judges who admit such a Return and proceed upon it and as Illegal in the Sheriff that makes such a Return and as different from due Proces of Law as the other And do not those false Returns filed upon their Records make all their proceedings thereupon false and faint Actions as aforesaid And if all before written be not sufficient to make it appear to the world that they are not onely Forgers Perjurers and Anathema's themselves but also the onely causers of all others to be or be accompted the like And that their Lives Lands and Goods are in the immediate dispose of the present State by the judgements and confessions of their own mouths Behold their Oath which they voluntarily take when they assume their places whereby they binde themselves further before God and man as followeth viz. Ye shall Swear The Oath of the Kings Judges that well and lawfully ye shall serve our Sovereign Lord the King and his people in the office of Iustice and that lawfully ye shall Counsel the King in his business and that ye shall not councel nor assent to any thing which may turn him to dammage or disherison by any manner way or colour And that Ye shall not know the dammage or disherison of him whereof Ye shall not do him to be warned by Your self or by other And that Ye shall do even Law and Execution of right to all his Subjects rich and poor without having regard to any person And that You take not by Your self or by other privily nor apertly gift nor reward of gold not silver nor of any other thing which may turn to Your profit unless it be meat or drink and of small valure of any man that shall have any Plea or Proces hanging before You as long as the Proces shall be so hanging nor after the same cause And that Ye take no Fee as long as Ye shall be Iustice nor Robes of any may great or small but of the King himself And that Ye give none advise nor Counsel to no man great nor small in no case where the King is party And in case that any of what Estatt or Condition they be come before You in Your Sessions with Force and Arms or other ways against the Peace or against the form of the Statute thereof made to disturb Execution of the Common Law or to manace the people that they may not pursue the Law that Ye do their Bodies to be Arrested and put in prison and in case they be such that Ye may not Arrest them that Ye certifie the King of their names and of their Misprision hastily so that he may thereof ordain a covenable remedie And that You by Your selfe nor by other privily nor apertly maintain any Plea or quarrel hanging in the Kings Court or else where in the Countrie And that Ye denie to no man common right by the Kings Letters nor none other mans nor for none other cause and in case any Letters come to You contrarie to the Law that You do nothing by such lett but certifie the King thereof and go forth to do the Law notwithstanding the same Letters And that Ye shall do and procure the profit of the King and of his Crown with all things where Ye may reasonably do the same And in case Ye be from henceforth found in default in any of the points aforesaid Ye shall be at the Kings Will of Body Lands Goods thereof to be done as shall please him As God You help and all Saints Anno 18. Edward 3. Stat. 3. Expost and Quer. If Atheists can perswade Christians that this Oath was no binding for them that had taken it even the Wise Learned Reverend Judges Sages Scientissimous Interpreters of the Laws of England sufficient to keep them within the compass of their Oath Law and Knowledges Shall not Christians perswade themselves that it is a sufficient Confession Declaration and judgement of their own mouths that made it that their forfeitures viz. their Lives Lands and Goods in case of their breach of any point of this Oath are now immediately in the power of the State to dispose of to the publique use at their pleasures without any further Proces or proceedings in Law but onely to give Order and Warrant to Arrest the persons of such Offendors to stand to their censures and to Sequester their Estates and to divide them to the said use accordingly Did Lords ever use any more Law than their own Wills when they Sequestred and punished their villains Had Lords any more Law Right or Reason to Sequester and punish their villains at their own Wills but for that their villains did take their Lands upon conditions to do those services which they and their Lords agreed upon and gave their Lords their Oaths as their greatest bonds to perform those conditions or in case of breach to suffer their Lords to repossess their Lands with the forfeitures of their Goods which they gained and their Lives which they sustained upon the same Was the Oath of a Villain though made by Parliament to the end that Lords should be well served by their Slaves in their private and meanest Offices of as considerable consequence to be observed or in default thereof their forfeitures to be executed as the Oath of Judges made and Confirmed by several Parliaments to the end that the common-wealth should be well served by their Justices in their publike and most honourable if rightly served Offices of Judicature and administration of Justice Are not such Villains as dare incroach not onely upon their Lords Lands and Estates but also upon their Lives and Liberties dangerous transcendent Hyper-Prelatical Usurpers Are not such Usurpers intollerable mischiefs in a Common-wealth Who being sworn servants to the Common-wealth as by this Oath it appeareth the Kings Justices were make all the Common-wealth their servants to attend their Trains at Westminster at their pleasures And all Prisoners for Debt not onely their own Villains but also Villains to their Villainous Goalors and Slaves to their Slaves Are not the meanest of the Free-People of England interessed in the due execution of Justice to which these Judges were sworn as well to them as to Kings and consequently ought they not to be such Lords as dare and will take the forfeitures of such Villains as do them daily Injustice Is not this Oath a sufficient Evidence in it self that the takers of it have do dayly break it cause all others that have or do break it to do so likewise Since Kings and People have wholly referred themselves and their Estates not onely to the Justice of their Judges but also to their fatherly advertisements and admonitions whereby they ought not to suffer any that depend upon them to err through ignorance and they contrariwise admonish none not to offend but suffer and cause more to offend than willingly and wittingly would and so do for want of such admonitions much
all whose ways are to Injustice as aforesaid How can that Law be called Common to all which They and these their Creatures Monopolize Ingross and Appropriate all to themselves as aforesaid And We will C. 2. Judgements That if any Indgement be given from henceforth contrary to the points of the Charters aforesaid by the Iustices or by any other Our Ministers that hold Plea before them against the points of the Charters it shall be undone and holden for nought Whatsoever Judgement is given against this Statute of Magna Charta L. Coke upon Con. C. f. 527. c. is made void by this Act and may be reversed by a Writ of Error because the Judgement is given against the Law for this Act saith Soir de fair pur nienttenus viz. as the Stat. Englisheth it self It shall be undone and holden for nought Expost and Quer. If so Why should not all Iudgements appearing as aforesaid to be contrary to Mag. Charta which are given for Arrests and Imprisonment of mens Bodies for Debt be undone and held for nought Why did Mr. Garland lately trouble the most High Court of Parliament whereof by so doing he shewed himself an unworthy Member with a ridiculous useless Act of his drawing for the Enlarging poor Prisoners for Debt Why did not he if he did ever read this place of the Lord 〈◊〉 mind the Parliament to command the Judges who seem if they have read it to have forgot it to reverse their Erroneous judgements against Debtors so far as they extend to their Imprisonment and to send their Liberate to all their Goalers to set open all their Goal dores and let forth so many of the Prisoners for Debt as they have left alive The poor because they have no Estate whereof to pay the rich because they have Estates sufficient for all or part against which Estates so much of their judgements may stand as concerneth that and not their Bodies and Executions may be taken thereupon by Elegit or Fieri facias according to the Statute of Westminster the 2. cap. 18th agreeable to Magna Charta and the Parliament not to be troubled except to Impower the Iudges by an Order to rectifie their judgements according to that Law which is in force and so forgo their Errors and Repealed Statute of the 25th of Ed. 3d c. 17th which ought to be no Guid Leader or Teacher to learned and grave Judges that can never be misguided by the right law if as the Lord C. saith they certainly know it and be pleased truly to follow it And by this course as well the Creditors of the rich Debtors as the poor Prisoners for Debt that have been wronged by the Judges Erronious judgements and proceedings against Mag. Charta may be partly redressed and so rest satisfied until the Parliament be pleased to right them further as shall appear hereafter they may So likewise may that Prisoner which is Imprisoned again after his inlargement by Garlands Act be Enlarged again by the same Judge that Committed him without troubling the Parliament or People with any such Appeal as is lately divulged or suffering the Apprentices Out-Cry to run so far That now it will never be stopped till the Thieves be taken And that all Arch Bishops Cap. 4. Excom c. and Bishops shall pronounce the Sentence of Excommunication against all those that by word deed or counsel do contrary to the said Charters or that in any point break or undo them And that the said Curse be twice a year Denounced and Published by the Prelates aforesaid And if the same Prelates or any of them be remiss in the Denunciation of the said Sentences the Arch-Bishops of Canterbury and York for the time being shall Compel and Distrain them to the Execution of their Duties in Form afore-said This Excommunication the Prelates could not pronounce without Warrant by Authoritie of Parliament L. C. upon Confir Cart. f. 527. because it concerned Temporal causes Expost and Quer. Was not the Authority of this Parliament sufficient Warrant for Prelates to pronounce Excommunication according to the Tenor and limitation of this Act Doth not the Lord Coke say before That this Act is not onely an Express Confirmation of Magna Charta but also a Confirmation of it in Law Doth he not say before that That Magna Charta should live for ever and in all Successions of Ages for evermore Is not the substance of the Excommunication given by this Act to the Prelates to pronounce Had the Prelates any more to do therein but to pronounce an Excommunication What meaneth Ipso Facto in the Act but to let all future Ages understand That the breach of Mag. Cha. which is a Declaration of the Fundamental Laws of England is such an Offence as deserveth an everlasting Curse inflicted by the Law it self upon the Breakers for ever Which Curse receiveth no more strength from the Pronouncer than a Sentence of Death from a Iudge who doth but tell a Fellon whom the Law condemneth what shall be the manner of his Death If any Excommunication was ever pronounced by virtue of this Act as there were two in two several Kings Reigns were not those Excommunications in force and so to continue as long as Magna Charta it self the Prelates and their Successours neglect of their Duties by discontinuing such Denunciations twice yearly afterwards notwithstanding If so Are not those Excommunications still in force except Absolutions be produced granted and given by equal Authority to that whereby those Excommunications were Denounced If so Are not Excommunications until Absolutions of the same accompt and validity in Law as Out-lawries until they be reversed If so Are not all the Lands Goods and Chattels of all Excommunicats now the States as formerly they were the Kings and so Seizable Sequestrable and Convertible to that use until Absolution And ought not satisfaction precede Absolution Ought not that satisfaction extend to every particular man that hath been wrong'd in this case which as the L. C. saith is a Temporal case and so called in respect of the interest of all men called by the Clergy Temporal for distinction from themselves that would be called Spiritual And so as I believe not to be commuted by a Prelatical Sentence to a trivial Pennance nor pardoned by Parliament without excepting every particular Interest And what Parliament can Pardon or Absolve Offendours against Magna Charta but by the Rules of Magna Charta without offending Magna Charta themselves and incurring the same Excommunication as they have incurred that would be Absolved If Excommunications be no Terrors to Atheistical Judges Justices c. who neither Believe nor fear Heaven Hell God Justice nor Laws though they cannot in nature and reason but know that such there are and are to be beleived feared and obeyed shall not Excommunications be sufficient Warrants for Christians English Christians in England being warranted not onely as the L. C. saith By
more increase and enhance the Markets of their Justice by suffering no other Judges to admonish or Justifie any offendors at home and ingrossing all to themselves at Westminster or before such as they send to fripper for them in Assizes Goal-Deliveries and Nisi priusâ—s Have not some present Grafts of the old stock Judges of Assizes in possibility for the Countrey their Agents in Chancery procured several late Injunctions to be dissolved in Chancery without the privity of both parties whom they concerned to the end onely to beget work for them in the Assizes lest they should want better Did our late Judges lawfully counsel King Charls in his busines when they gave their Resolutions for him concerning the Ship-money Did they not assent to a thing or things that turned to his dammage and disherison and overturned him and his Posterity out of three Kingdoms and his life to boot when they assented to Ship money and Monopolies Did not the Kings Councel and other Serjeants and Lawyers draw if not plot all such Patents Got they not more by their Fees for their advise therein which were present pay than the King did by his reservations for interest in those Grants which are yet in Arrear Was any thing reserved to the King thereby but what his Councel learned thought fit and advised him to take and the Paâ—â—ntees to give Did not those Judges that had the keeping of both the Kings Seals assent to all those unlawfull things whatsoever they Sealed Briefly doth not this Oath in every point evidence the Judges at Westminster and their brethren to have been the chief betrayers of Kings and People in their chief trust to guide and hold both in the right way and did they not lead both wrong And thereby are the chief Authors of all the blood spilt and estates ruined in these three Kingdoms in and by these late Wars which were undertaken for Reformation onely of such deformities in Law and Government which you see they had power to keep in form by their lawfull judgements or admonitions to the right or not consenting to the wrong Do not our Records and History testifie that all the Civil Wars of England were alwaies undertaken for Reformation of Injustice evil Government and corrupt Lawyers that were alwaies the causers thereof by breaking and causing to be broken the Liberties of Magna Charta which the People sought alwaies to recover Were not Hugh D'Burgo Chief Justice of England Walter D'Lancton Lord Treasurer of England Brember Trisilian Bellknap Thorp c. examples of their times in that case If so few examples will not serve to make all Judges mend should not all such Judges be made examples to serve posterity to see that such evils are not necessary for Common-wealths Shall such Extrajudical Judges such lawless Lawyers c. as will not be tied by Oaths made in and by Parliaments Excommunications denounced by Authority of Parliaments Charters Signed Sealed and Confirmed in and by Parliaments nor by Acts Laws and Statutes made by full and free Parliaments be suffered to sit with Christians in Parliaments to make Laws Votes Oaths and other Obligations upon Christians which shall be none to themselves But let us see further what an other Act of Parliament saith to this Oath as ensueth viz. The Statut. 20. E. 3. Pream Letter Justice Edward by the Grace of God c. To the Sheriff of Stanford greeting Because that by divers complaints made to Vs We have perceived that the Law of the Land which We by Our Oath are bound to maintain is the less well kept and the execution of the same disturbed many times by maintenance and procurement as well in the Court as in the Countrey We greatly moved of Conscience in this matter and for this cause desiring as much for the pleasure of God and ease and quietness of Our Subjects as to save Our Conscience and for to save and keep Our said Oath by the assent of the Great men and other Wise men of Our Councel We have ordeined these things following viz. First Cap. 1. We have commanded all Our Iustices that they shall from henceforth do even Law and execution of right to all our Subjects rich poor without having regard to any person and without letting to do right for any letters or commandment which may come to them from Vs or from any other or by any other cause And in that any letters Letters writs or commandments come to the Iustices or to other deputed to do Law and right according to the usage of the Realm in disturbance of the Law or of the execution of the same or of right to the parties the Iustices and other aforesaid shall proceed and hold their Courts and Processes where the Pleas and matters be depending before them as if no such Letters Writs or commandments were come to them And they shall certifie Vs Our Councel of such commandments as be contrarie to the Law as before is said And to the intent that our Iustices should do even right to all people Justice in the manner aforesaid without more favour shewing to one more than to another We have done Our said Iustices to be sworn that they shall not from henceforth as long as they shall be in office of Iustice Fees Roabs take Fee nor Roabe of any man but of Our self And they shall take no gift nor reward by themselfs nor by other privily nor apertly of any man that hath to do before them by any way except meat and drink and that of small valure and that they shall give no counsel to a great man nor small in case where We be Partie or which do or may touch Vs in any point upon pain to be at Our will Bodie Lands and Goods to do thereof as shall please us in case they do contrarie And for this cause We have increased the Fees of the same our Iustices in such manner that it ought reasonably to suffice them Expost and Quer. Doth not the King say here He is bound by his Oath to maintain the Laws of the Land Doth not the Lord Coke say before That a King in his Politick capacitie cannot dye Did not or ought not all Kings of England take the like Oath as this King did Were they not therefore bound to maintain the Laws of England as well as he and to be advised and ruled by their Judges how to maintain them as the Oath of the Judges this Statute and others do manifest they were Are not Judges as Immortal as Kings in their Politick capacity Are they not bound by their Oaths not onely to maintain and execute the Laws of England against all men without regard of Persons but also to advise their Kings to maintain them and how so to do and to hinder or not consent with their Kings to break them Were not the maintenances whereof the King here complaineth and the procurements as well in Court as
in Countrey whereby he saith the Laws and the due execution thereof were disturbed the remainders of the Factions of the Spencers and others who in Edward the 2d. his time had made such Judges as had put all Laws out of all order so that this King being Edward the 3d. could not reform what had been deformed hitherto but now endeavoureth to do it by means of this Oath made in Parliament in the 18th year of his Reign and this Act made in the 20th If Kings endeavoured to perform their duties as this King did and Judges would not should not such Judges suffer as in this Kings time divers did If Kings and Judges contrary to their Oaths and Offices omit their duties as this Kings Father and his Judges did should not such Kings and Judges suffer for their defaults as he and they did If Kings and Bishops did lately neglect their duties contrary to their Oaths and Offices and were punished for their defaults why not such Judges as were the greater Delinquents for suffering them so to offend and more for consenting thereto And more than that when they advised the same If the secret Sacriledge of one Achan deserved Gods indignation against all his People of Israel until they discovered and punished him and his Offence What doth the manifest extortion a sin no less prohibited than Sacriledge of so many Achans merit of Gods Judgements against the whole Nation of England if they prosecute not or leave unpunished their Offences which are more than Extortions as Perjuries Forgeries Sacriledge it self and divers others spoken of before Judge O People Judge your selves O ye People least ye be Judged FINIS POST-SCRIPT IF it please the Parliament to require more proofs than common experience of the common breach of all the Common Law of England by our common Mercinary Judges they may cause Commissions in Eyer or other Oyers and Terminers to be issued to clear the matter by more particular evidences Eight Observable POINTS OF LAW Executable by Justices of the Peace in their Counties and Magistrates in their Corporations Necessary to be known to the COMMON PEOPLE 1. The choise of all Officers of Peace and Trust anciently in the People cōfirmed by Magna Chart. 1 COunties and Sheriffs Turns were ancient Courts in the time of King Arthur before And in the Turns were tried all Pleas of the Crown in the Counties all Common-Pleas under fourty shillings without Writ and above to any value with Writs according to the Law maxim Quod placita de Catallis debitis c. quae summam 40s attingunt vel excedunt secundùm legem consuetudinem Angliae sine brevi Regis placitari non debent See the Lord Coke upon the 35th Chap. of Magna Charta and upon the Stature of Gloucester fol. 310. 312. Hundreds and Court Burons have the same power and rights and neither Sheriffs nor Stewards are Judges but suiters onely fol. 312. And so all men were to have Law and Justice at home cheap and near and not to fetch it from Westminster far and dear And the Conservators otherwise called Guardians of the Peace before Magna Charta and since had all necessary power to govern their Counties in Peace and to execute all Laws conducing thereunto and to command the power of their Counties to assist them and were chosen as all other Officers of Peace and Trust were by their Counties as the Lord Coke affirmeth 2. This Mutuatus is usual in the Kings-Bench and Common-Pleas to fetch poor men not worth 40. s. from York or Cornwall to London for 5. s. debt or less and to Outlaw him in the Common-Pleas if he come not which example other Courts of Record follow too much 2. As Superiour Courts ought not to incroach upon Inferiour so the Inferiour ought not to defraud the Superiour of those causes that belong to them viz. Neither ought a man be sued in any Court of Record for debt not amounting to 40s by way of mutuatus and other lawless tricks dayly used by Attornies nor in any inferiour Court for debt of 40 shillings or exceeding by dividing it into Actions under 40 shillings In which cases the Defendant ought to be admitted to plead to the jurisdiction of the Court and to have a Prohibition to stay the suit see the Lord Coke upon the Stat. of Glouc. fol. 311. And all Courts were to dismiss all Actions entred without sufficient bail to prosecute answerable for costs and damages If non-suited or cast and not Jo. Do. and Rich. Ro. as is used See F. H. Just P. the Register and Fitz. H. Nat. brevium at large And no Court of Record was to proceed in any action of debt before the Plantiff swore his said debt to be 40s or more and his damage in trespass to be so much at least And if Battery that he was beaten indeed to his uncurable hurt to that value See the Stat. of Glouc. and the L. Coke upon it with his reason for the discontinuance of this practice 3. Doth not the denial of an Habeas Corpus to bring a prisoner before a Judge without Fees both to Judge and Attorney include the sale delay and deniall of Justice while the prisoner is unprovided to buy it 3. All the Kings Writs for the doing justice and right to all men freely and speedily without delay or denial ought to be granted and had freely at the Kings cost And justice ought to be done freely without sale fully without denial and speedily without delay whereby saith the Lord Coke it appeareth that justice must have three qualities viz. To be Free because nothing is more vile than what is venal Full and perfect that it may not halt And speedy because delay is a kind of denial See the L. Coke upon the Stat. of Marlbr chap. 80. Thus to have and do was the Common Law of England and the Liberties and Right of the People before Mag. Char. and saved unto them by it and the best Birth-right they ever had or can have whereby their Lands Goods Wives Children Bodies Lives Honours and Estimations ought to be protected from injuries See the L. C. upon the 29 38 c. of M. C. 4. All defaults offences of Sheriffs Coroners Escheatours c. inquirable and punishable by Justices of Peace 4. Therefore Magna Char. ought to be read and published to the People in all Cathedrals twice yearly And all breakers thereof are excommunicated ipso facto and so twice pronounced by two Acts of Parliament Tit. confirm excommengm t in Rast abridg fol. 65. and 148. And it ought to be read in full County in every shire four times yearly and all the breakers thereof inquired of there and further inquired of and punished by Fines Imprisonments c. by Justices in Eyre two of every Counties chusing whereby 12. or 14. may serve in circuits throughout England and Wales divided into six or seven Provinces as twelve did serve
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 Aâ—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 Marlâ—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
Misdemeanours are comprehended all breaches of Magna Char and all Offences against all Statutes in force and concurrent with Mag. Char. and the Petition of Right which all Justices of Peace and Magistrates in their several jurisdictions are Authorized and sworn to hear and determine without fear favour or respect of persons How then to be excused or delayed by any Writ or command of any Superiour And how are the Judges of the Kings-Bench whereof the chief was the Kings Deputy by Writ now Superiour or equal to any other Judges or Justices If that maxim be true moritur Actio cum Personâ But the Office of a Deputy dyeth with its Master as a Letter or Warrant of Attorney with its maker the King-Bench may be spared as well as his person And all causes in this Common-wealth be called Common-Pleas and tryed by the Common Law of the land and Verdicts of common people and Free-holders of every County and Corporation before the Free Judges Magistrates freely chosen by the said Common and Free-People to justifie them at home and not before mercinary makers expounders and sellers of all Lawes and Liberties as they please at Westminster And doth not the said Stat. of 28. Ed. 3. warrant Justices of Peace or any two of them whereof one to be of the Quorum to call and keep Sessions as often as they see need to do justice to their Countrey See the Stat. at large and Cromp. I. P. fol. 112. and F. H. I. P. fol. 10. Whereunto adde That as Magna Charta compriseth all the Law of this land agreed upon by Kings and People and would be read and published in English as aforesaid for the better understanding thereof by all English People to the end that the ignorance of their Law should be not excuse for any of them to transgress it So how needless it is if not pestiferous to have this Common-Law reduced to a private mercinarie Trade or particular science exceeding the seven Liberal by such professours thereof as have and do endeavour to disguise mask and hide it from all but themselves in base French and Latine intricacies and obscurities to the end to make all persons offendors thereof and none excusable but by their resolutions of their own Riddles which are alwaies answerable to their Fees be the cause right or wrong whereby the cure of Law becometh an incurable disease until that superfluous mercinary profession be abolished or regulated so as the best and soundest Lawyers may be used in Parliaments as in former times to sit upon Wol-sacks to answer to what that high Court shall be pleased to aske them and not as members of that Court to make Lawes and Oaths for others which they never observe themselves but for their own gain and the peoples damage To which end they alwaies preamble their inventions against Mag. Char. with titles of Acts for the good of the people when in their subsequents they hurt all but themselves As passing by all former their last Acts for the inlarging of poor prisoners for debt sufficiently witness whereby neither creditor nor debtour are any way relieved but both further entangled and Lawyers Fees more procreated Videat experientia Conclusivè That there can be no firm peace or end of Wars till there be an end of mercinarie professours of Law less needful or useful for Parliaments or People than Bishops or such as might be used there or elswhere for saying or reading prayers while these neither pray preach nor study but their own lucrative magnificence every where upon the peoples purses Adde lastly Such Justices of Peace as will not execute Mag. Char. with its confirmations and the Petition of Right and desert and wave the execution and practice of contradictory Statutes for zeal to their Creatours or fear to be unmade by those that made them ought to be deserted and waved by all good Patriots of their countrey as excommunicated persons and breakers of M. Chà And such onely as will execute Mag. Ch. c. ought to be confirmed by the choise of the People in their Counties respectively whereby they may act as the ancient Conservatours of the Peace did by the Common Law of England before Mag. Char. and since which was to conserve the Peace of England by all necessary means word or sword unlimited by Prerogative Statutes devised by mercinary Lawyers to steal from the People their birth-right Authority in the name of the King unto themselves to sell delay and deny it at their pleasures which to do is apparently contrary not onely to Mag. Char. and the Common Laws of England and also to common reason but chiefly to the divine Providence of God for neither Law Reason nor Divine justice would ordain a man to conserve the publike peace of Gods people which peace as they is his own without giving that man an unlimitable power by which he may execute his Office and without which he cannot FINIS