thereby p. 205. What persons ought to be Jury men and how Qualified p. 209. Jurors in Antient Law-books call'd Judges p. 211. Of the Duty of Grand Juries p. 212. Their Oath p. 213. That Juries are Judges of Law in some respects as well as Fact p. 220. to p. 223. That Juries are not fineable or any way to be punished under pretence of going contrary to Evidence or against the Judges Directions p. 223. The Conclusion Bushels Case reported by the Learned Sir John Vaughan Licensed by the present Lord Chancellor the Lord Chief Justice North and all the Judges then in England THE PROEM THE Constitution of our English Government the best in the World is no Arbitrary Tyranny like the Turkish Grand Seignior's or the French Kings whose Wills or rather Lusts dispose of the Lives and Fortunes of their unhappy Subjects Nor an Oligarchy where the great ones like Fish in the Ocean prey upon and live by devouring the lesser at their pleasure Nor yet a Democracy or popular State much less an Anarchy where all confusedly are hail fellows well met But a most excellently mixt or qualified Monarchy where the King is vested with large Prerogatives sufficient to support Majesty and restrain'd only from Power of doing himself and his People harm which would be contrary to the very end of all Government and is properly rather weakness than power the Nobility adorn'd with Priviledges to be a Screen to Majesty and a refreshing Shade to their Inferiours and the Commonalty too so Guarded in their Persons and Properties by the fence of Law as renders them Free-men not Slaves In France and other Nations the meer Will of the Prince is Law his Word takes off any mans Head imposes Taxes or seizes any mans Estate when how and as often as he lists and if one be Accused or but so much as suspected of any Crime he may either presently Execute him or Banish or Imprison him at pleasure or if he will be so Gracious as to proceed by Form of their Laws if any two Villains will but swear against the poor Party his Life is gone Nay if there be no Witnesses yet he may be put to the Rack the Tortures whereof make many an Innocent Person confess himself Guilty and then with seeming Justice he is Executed or if he prove so stout as in Torments to deny the Fact yet he comes off with Disjoynted Bones and such Weakness as renders his Life a Burthen to him ever after But in England the Law is both the Measure and the Bond of every Subjects Duty and Allegiance each man having a fixed Fundamental Right born with him as to Freedom of his Person and Property in his Estate which he cannot be deprived of but either by his consent or some Crime for which the Law has Impos'd such a Penalty or Forfeiture For all our Kings take a solemn Oath At their Coronation to Observe and cause the Laws to be kept which was done by our present most Gracious Soveraign Likewise all our Judges take an Oath wherein amongst other points they swear To do equal Law and Right to all the Kings Subjects Rich and Poor and not to delay any Person of Common Right for the Letters of the King or of any other Person or for any other Cause But if any such Letters come to them they shall proceed to do the Law the same Letters notwithstanding Therefore saith Fortesoue who was first Chief Justice and afterwards Lord Chancellor to King Henry the 6th in his Book de Laudibus Legum Angliae cap. 9. Non potest Rex Angliae c. The King of England cannot alter nor change the Laws of his Realm at his pleasure For why he Governeth his People by Power not only Royal but also Politick If his Power over them were only Regal then he might change the Laws of his Realm and charge his Subjects with Tallage and other Burthens without their consent and such is the Dominion that the Civil Laws purport when they cry Quod principi plecuit Legis habet Vigorom The Princes pleasure has the force of a Law But from this much differeth the power of a King whose Government over his People is Politick For he can neither change Laws without the consent of his Subjects nor yet charge them with Impositions against their Wills Wherefore his People do frankly and freely enjoy and occupy their own Goods being Ruled by such Laws as they themselves desire Thus Fortescue with whom Accords Bracton a Reverend Judge and Law-Author in the Reign of King Henry the third saying Rex in Regno suo superiores habet Deum Legem The King in his Realm hath two Superiors God and the Law for he is under the Directive though not Coercive Power of the Law and on the same Score Judge Vaughan speaking of our Fundamental Laws which are Coeval with the Government sticks not to say The Laws of England were never the Dictates of any Conquerors Sword or the Placita or good Will and pleasure of any King of this Nation or to speak Impartially and Freely the Results of any Parliament that ever sate in this Land And the late cited Fortescue in his 13 chap. has a very apt similitude to Illustrate and Demonstrate this The Law says he taketh its name a Ligando to bind for thereby the Politick Body is knit and preserv'd together as the Natural Body by the Bones and Sinews and Members which retain every one their proper Functions And as the Head of a Body Natural cannot change his Sinews nor cannot deny or with-hold from his inferiour Members their peculiar Powers and several nourishments of Blood and Spirits no more can a King which is the Head of a Body Politick change the Laws of that Body nor withdraw from his People their proper Substance against their Wills and Consents in that behalf 'T is true the Law it self affirms The King can do no wrong which proceeds not only from a presumption that so Excellent a Person will do none But also because he Acts nothing but by Ministers which from the lowest to the highest are answerable for their doings so that it a King in Passion should command A. to kill B. without process of Law A. may yet be prosecuted by Indictment or upon an Appeal where no Royal Pardon is allowable and must for the same be Executed such Command notwithstanding This Original happy frame of Government is truly and properly call'd an English mans Liberty a Priviledge not to exempt from the Law but to be freed in Person and Estate from Arbitrary Violence and Oppression A greater Inheritance saith Judge Cook is deriv'd to every one of us from our Laws that from our Parents For without the former what would the latter signifie And this Birth-right of English-men shines most conspicuously in two things 1. Parliaments 2. Juries By the first the Subject has a share by his chosen Representatives in the Legislative or Law-making Power for
when they had them best 2. And if any Statutes have been made by Us and our Ancestors or any Customs brought in contrary to them or any manner of Article contained in this present Charter We Will and grant that such manner of Statutes and Customs shall be void and frustrate for evermore CHAP. V. Pardon granted to certain Offenders MOreover we have pardoned Humphrey Bohun Earl of Hereford and Essex Constable of England Roger Earl of Norfolk and Suffolk Marshal of England and other Earls Barons Knights Esquires and namely John de Ferrariis with all other being of their Fellowship Consederacy and Bond and also of other that hold 20 l. Land in our Realm whether they hold of us in Chief or of others that were appointed at a day certain to pass over with us into Flanders the Rancour and Evil will born against us and all other Offences if any they have committed against us unto the making of this present Charter CHAP. VI. The Curse of the Church shall be Pronounced against the Breakers of this Charter ANd for the more assurance of this thing we will and grant that all Archbishops and Bishops for ever shall read this present Charter in Cathedral Churches twice in the Year and upon the Reading thereof in every of their Parish-Churches shall openly Denounce accursed all those that willingly do procure to be done any thing contrary to the tenour force and effect of this present Charter in any point and article In witness of which thing we have set our Seal to this present Charter together with the Seals of the Archbishops Bishops which voluntarily have sworn that as much as in them is they shall observe the tenour of this present Charter in all Causes and Articles and shall extend their faithful Aid to the keeping thereof c. The Comment THe word Tallage is derived from the French word Tailler to share or cut out a part and is Metaphorically used for any Charge when the King or any other does cut out or take away any part or share out of a Mans Estate and being a general word it includes all Subsidies Taxes Tenths Aids Impositions or other Charges whatsoever The word Maletot signifies an Evil that is an unjust Toll Custom Imposition or Sum of Money The occasion of making this Statute was this King Edward being injured by the French King resolves to make War against him and in order thereunto requires of Humphrey le Bohun Earl of Hereford and Essex and Constable of England and of Roger Bigot Earl of Norfolk and Suffolk and Marshal of England and of all the Earls Barons Knights Esquires and Freeholders of 20 l. Land whether they held of him in Capite to contribute towards such his expedition that is to go in Person or find sufficient Men in their places in his Army which the Constable and Marshal and many of the Knights and Esquires and especially this John Ferrers taking part with them and all the Freemen stoutly denyed unless it were so ordained and determined by common consent in Parliament according to Law And it seems the contest grew so hot that Baker's Chronicle Folio 99. relates a strange Dialogue that pass'd between them viz. That when the Earl Marshal told the King That if his Majesty pleased to go in Person he would then go with him and march before him in the Van-Guard as by right of Inheritance he ought to do but otherwise he would not stir the King told him plainly he should go with any other though he went not in Person I am not so bound saith the Earl neither will I take that Journey without you The King swore By God Sir Earl you shall either go or Hang And I swear by the same Oath said the Earl I will neither go nor Hang. And so the King was forc'd to dispatch his expedition without them And yet saith my Lord Coke altho the King had conceived a deep displeasure against the Constable Marshal and others of the Nobility Gentry and Commons of the Realm for denying that which he so much desired yet for that they stood in defence of their Laws Liberties and free Customes the said King Edward the First who as Sir William Herle Chief Justice of the Common-Pleas who lived in his time and served him said in the time of King Edward the 3d. was the wisest King that ever was did after his return from beyond the Seas not only consent to this Statute whereby all such Tallages and Impositions are forbidden for the future but also passes a Pardon to the said Nobles c. of all Rancour Ill-will and Transgressions If any they have committed which last words were added lest by acceptance of a Pardon of Transgression they should implicitely confess that they had Transgressed so careful were the Lords and Commons in former times to preserve the Ancient Laws Liberties and free Customs of their Country But note these words Si quas fecerint If any they have committed are left out in all the Printed Books of Statutes but they are in this Statute recited by Coke in his second Book of Institutes Fo. 535. and specially noted which he would never have done if it had not been so in the Rolls And since 't is probable them may be many more like Omissions Mistakes or Falsifications crept into the Prints and for that the Râ—â—â—â—d not the printed Satute-Book varying from the Records is the Law It were to be wished that all the Rolls of Acts of Parliament were carefully by some Persons of Learning and Integrity view'd and Compared with the Prints and notice taken of all such Varâ—â—tions and of Errors committed in the Translations and of any Statutes of a publick Import if in force that were never printed and the same to be made publick Anno 25 Edw. 3. CAP. II. A Declaration what Offences shall be adjudged Treason WHereas diverse opinions have been before this time in what Case Treason shall be said and in what not 2. The King at the Request of the Lords and of the Commons hath made a declaration in the manner as hereafter followeth that is to say When a Man doth Compass or Imagine the Death of our Lord the King or of our Lady his Queen or of their eldest Son and Heir 3. Or if a man do violate the Kings Companion or the Kings Eldest Daughter unmarried or the Wife of the Kings Eldest Son and Heir 4. Or if a Man do Levy War against our Lord the King in his Realm or be Adherent to the Kings Enemies in his Realm giving them Aid and Comfort in the Realm or elsewhere and thereof be provably Attainted of open Deed by the People of their Condition 5. And if a Man Counterfeit the Kings Great or Privy-Seal or his Money 6. And if a Man bring false Money into this Realm Counterfeit to the Money of England as the Money called Lushburgh or other like to the said Money of England knowing the Money to be false to Merchandise
or make payment in deceit of our said Lord the King and of his People 7. And if a Man Slay the Chancellor Treasurer or the Kings Justice of the one Bench or the other Justices in Eyre or Justices of Assize and all other Justices Assigned to Hear and Determine being in their Places doing their Offices 8. And it is to be understood that in the Cases above rehearsed that ought to be judged Treason which extends to our Lord the King and of his Royal Majesty 9. And of such Treason the Forfeiture of the Escheats pertaineth to our Lord as well of the Lands and Tenement holden of other as of himself 10. And moreover there is another manner of Treason that is to say when a Servant slayeth his Master or a Wife her Husband or when a Man Secular or Religious slayeth his Prelate to whom he oweth Faith and Obedience 11. And of such Treason the Escheats cught to pertain to every Lord of his own Fee 12. And because that many other like Cases of Treason may happen in time to come which a man cannot think nor declare at this present time it is Accorded That if any other Case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without any going to Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be judged Treason or other Felony 13. And if percase any Man of this Realm Ride Armed covertly or secret with Men of Arms against any other to Slay him or Rob him or Take him or Retain him till he hath made Fine or Ransome for to have his deliverance it is not the mind of the King nor his Council that in such Case it shall be judged Treason but shall be judged Felony or Trespass according to the Laws of the Land of old time used and according as the Case requireth 14. And if in such Case or other like before this time any Justices have judged Treason and for this cause the Lands and Tenements have come into the Kings hands as forfeit the chief Lords of the Fee shall have the Escheats of the Tenements holden of them whether that the same Tenements be in the Kings hands or in others by Gift or in other manner 15. Saving always to our Lord the King the Year and the Waste and the sorfeitures of Chattels which pertain to him in the Cases above named 16. And that the Writs of Scire Facias be granted in such Case against the Land-Tenants without other Original and without allowing any Protection in the said Suit 17. And that of the Lands which be in the Kings hands Writs be granted to the Sheriffs of the Counties where the Lands be to deliver them out of the Kings hands without delay The Comment TReason is derived from Trabir which signifies Treacherously to betray when it concerns the Government and the Publick 't is called High Treason but against particular Persons as a Wife killing her Husband a Servant his Master c. it is Petty Treason High Treason in the Civil Law is called Crimen Laesae Majestatis a Crime wronging Majesty but in our Common-Law-Latine Alta proditio and in an Indictment for this offence the word Proditorie must be in Before the making this Act so many things were charged as High Treason That no Man knew how to behave himself Now by this Statute the particulars of that Grand Crime are reckoned up and all others excluded till declared by Parliament And the settling of this Affair was esteemed of such Importance to the Publick-Weal That the Parliament wherein this Act passed was called long after Benedictum Parliamentum the Blessed Parliament The substance of this Statute is branched out by my Lord Cook 3d. part of Instit. Fol. 3. into six Heads viz. The first concerning Death by compassing or imagining the death of the King Queen or Prince and declaring the same by some Overt Deed. By killing and murdering of the Chancellor Treasurer Justices of either Bench Justices in Eyre Justices of Assize Justices of Oier and Terminer In their Places doing their Offices The second is to Violate that is to Carnally know the Queen the Kings Eldest Daughter unmarried the Princes Wife The third is Levying War against the King The fourth is Adhering to the Kings Enemies within the Realm or without and declaring the same by some overt Act. The fifth is Counterfeiting of the Great the Privy Seal or the Kings Coin The sixth and last by bringing into this Realm Counterfeit Mony to the likeness of the Kings Coin Now as to the particular Exposition of the several parts of this Statute 1. When a man doth compass c. in the Original it is Quant Home which extends to both Sexes but one that is Non compos mentis or an Infant within the Age of discretion is not included but all Allens within the Realm of England being thereby under the Kings Protection and owing a Local Allegiance if they commit Treason may be punisht by this Act but otherwise it is of an Enemy 2. To compass and Imagine Is to contrive design or intend the death of the King but this must be declared by some Overt Act. But declaring by an open Act a design to Depose or Imprison the King is an Over Act to manifest the compassing his death For they that will depose their King will not stick to Murder him rather than fail of their end and as King Charles the First excellently observed and lamentably experienced There are commonly but few steps between the Prisons and the Graves of Princes 3. By the word King is intended 1. A King before his Coronation as soon as ever the Crown descends upon him for the Coronation is but a Ceremony 2. A King de Facto and not de Jure is a King within this Act and a Treason against him is punishable thô the Right Heir get the Crown 3. A Titular King as the Husband of the Queen is not a King within this Act but the Queen is for the word King here includes both Sexes 4. What is to be understood by the Kings Eldest Son and Heir within this Act I answer 1. A second Son after the death of the first Born is within the Act for he is then Eldest Secondly The Eldest Son of a Queen Regnant is as well within the Statute as of a King Thirdly The Collateral Heir Apparent or Presumptive is not within this Statute Roger Mortimer Earl of March was in Anno Dom. 1487. 11 Rich. 2. Proclaimed Heir Apparent Anno 39. Hen. 6. Richard Duke of York was likewise Proclaimed Heir Apparent and so was John de la Poolen Earl of Lincoln by Rich. 3. And Henry Marquess of Exeter by King Henry the 8. But none of these or the like are within the Purview of this Statute saith my Lord Coke 3 Instit fol. 9. 5. Note Whereas in the Printed Statute-Books it is there
The Power and Jurisdiction of the Parliament for making of Laws in proceeding by Bill is so transcendent and absolute as it cannot be confined either for Causes or Persons within any bounds Of this Court it is truely said Si Antiquitatem spectes est vetustissima si Dignitatem est Honoratissima si Jurisdictionem est capacissima if you regard its Original it is most Antient if its Dignity it is most Honourable if its Jurisdiction it is most Capacious Sir Thomas Smith a great Statesman and in high esteem and place under Queen Elizabeth in his Treatise de Republica Anglorum L. 2. Ca. 2. gives this Character of this supream Court In Commitiis Parliamentariis posita est omnis Augustae absolutaeque potestatis vis veteres leges jubent esse irritas novas inducunt Presentibus juxta ac futuris modum constituunt Jura possessiones hominum privatorum commutant Spurios natalibus restituunt cultum divinum sanctionibus corroborant Pondera mensuras variant JUS IN REGNO SVCCEDENDI PRESCRIBVNT c. The most high and absolute power of the Realm of England consisteth in the Parliament for the Parliament abrogateth old Laws maketh new giveth order for things past and for things hereafter to be followed changeth the rights and possessions of private men Legitimateth Bastards Corroborates Religion with Civil Sanctions Alters weights and Measures PRESCRIBES THE RIGHT OF SVCCESSION TO THE CROWN defines doubtfull Rights where there is no Law already made Appointeth Subsidies Taxes and Impositions giveth most Free pardons restoreth in Blood and Name c. As for the power of Parliaments over both Statute and Common Law take it in the Accurate and Significant words of a Parliament viz. the Statute of 25 Hen. 8. Ca. 21 as follows Whereas this Realm Recognizing no superiour under God but the King hath been and is free from Subjection to any mans Laws but only to such as have been devised made and ordained within this Realm for the wealth thereof or to such other as the people of this Realm have taken at their free Liberty by their own consent to be used amongst them and have bound themselves by long use and Custome to the observance of the same not to the observance of the Laws of any Forreign Prince Potentate or Prelate but as to the accustomed and Ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with natural Equity and good Reason that all and every such Laws Humane made within this Realm or induced into this Realm by the said Sufferance Consents and Custom the King and the Lords Spiritual and Temporal and Commons Representing the whole State of the Realm in the most High Court of Parliament have full Power and Authority to dispouse with those and all other Humane Laws of the Realm and with every one of them as the quality of the Persons and matter shall require And also the said Laws and every of them to abrogate annull amplify or diminish as to the King Nobles and Commons of the Realm present in Parliament shall seem most meet and convenient for the Wealth of the Realm Thus far that notable Statute which in truth is only Declarative and in Affirmance of the Ancient Common Law of England The particular Business of Parliaments BY what hath been said you may perceive the work of an English Parliament is not as some would have it only to be Keys to unlock the peoples Purses That is but one part and perhaps one of the least parts too of their Office They are to propose new Laws that are wanting for general good and to press the Abrogation of Laws in being when the Execution of them is found prejudicial or dangerous to the publick They are to provide for Religion and the Safety and Honour of the Nation they have a power as you have heard from Sir Thomas Smith to order the Right to the Crown understand all this with the Kings consent and they have very frequently undertaken and actually Limited the same contrary to and different from the Common Line of Succession Nay by the Statute of the 13 Eliz. Cap 13. It is expresly Enacted That if any Person shall in any wise hold and affirm or maintain that the Queen with and by the Parliament of England is not able to make Laws and Statutes of sufficient force and validity to Limit and bind the Crown of this Realm and the Descent Limitation Inheritance and Government thereof or that this present Statute or any part thereof or any other Statute to be made by the Authority of the Parliament of England with the Royal Assent for Limiting the Crown is not are not or shall not or ought not to be for ever of good and sufficient Force and validity to bind limit restrain and Govern all Persons their Rights and Titles that in any wise may or might claim any Interest or Possibility in or to the Crown of England in Possession Remainder Inheritance Succession or otherwise howsoever and all other Persons whatsoever every Person so holding affirming or maintaining during the Life of the Queen shall be adjudged an high Traitor and suffer and forfeit as in Casts of High Treason is accustomed and every Person so holding affirming or maintaining after the dâ—câ—ase of our said Sovereign Lady shall forfeit all 〈◊〉 Good and Chattels Which Clause and last mentioned Penalty is to this Day in force and ought to be considered by any who shall now pretend that an Act of Parliament cannot dispose of the Succession As for the Right of making War and Peace the same is gramted to be part of the High Prerogatives of our Kings yet the wisest of our Monarchs have very rarely entred into any War without the 〈◊〉 〈◊〉 Parliaments for 1. Who could give them better Counsel in such a difficult Affair 2. The People would more readily expose their Persons in such a War the Justice and Expediency whereof was approved by their Representatives 3. The King from thence might more certainly promise himself supplies of Money to carry on the same But nothing is more properly the work of a Parliament than to redress Grievances To take notice of Monopolies and oppressions to Curb the Exorbitances of pernicious Favourites and ill Ministers of State To punish such mighty Delinquents as look upon themselves too big for the ordinary reach of Justice to inspect the Conduct of such as are intrusted with Administration of the Laws or disposal of the publick Treasure of the Nation All Crimes of these and the like kinds are publick Nusances common mischiefs and wound the whole Body politick in a vital part and can scarce at all be sound out or Redressed by reason of the power and Influence of the Offenders but in this great and awful Senate before whom the haughtiest Criminals tremble and it has been observed that they scarce ever Prosecuted any though never so
and Order as is agreable to Martial Law and as is used in Armies in time of war to proceed to the Tryal and Condemnation of such Offeuders and them to cause to be executed and put to death according to the Law Martial 8. By Pretext whereof some of your Majesties Subjects have been by some of the said Commissioners put to death when and where if by the Laws and Statutes of the Land they had deserved death by the same Laws and Statutes also they might and by no other ought to have been Judged and Executed 9. And also sundry greivous offenders by colour thereof claiming an exemption have Escaped the punishments due to them by the Laws and Statute of this your Realm by reason that divers of your Officers and Ministers of Justice have unjustly refused or forborne to proceed against such Offenders according to the same Laws and Statutes upon pretence that the said Offenders were punishable only by Martial Law and by Authority of such Commission as aforesaid 2 which Commissions and all other of like nature are wholly and directly Contrary to the said Laws and Statutes of this your Realm 10. They do therefore humbly pray your most Excellent Maiesty that no man hereafter be compelled to make or yield any Gift Loan Benevolence Tax or such like Charge without Common consent by act of Parliament 2 and that none be called to make answer or take such oath or to give attendance or be confined or otherwise molested or disquieted concerning the same or for refusal thereof 3 and that no Freeman in any such manner as is before mentioned be Imprisoned or detained 4 And that your Majesty would be pleased to remove the said Souldiers and Mariners and that your people may not be so burthened in time to come 5 and that the foresaid Commissions for proceeding by Martial Law may be revoked and annulled and that hereafter no Commissions of like nature may Issue forth to any person or persons whatsoever to be executed as aforesaid lest by colour of them any of your Majesties Subjects be destroyed or put to death contrary to the Laws and Franchise of the Land 11. All which they most humbly pray of your most Excellent Majesty as their Rights and Liberties according to the Laws and Statutes of this Realm and that your Majestie would also vouchsafe to declare that the awards doings and proceedings to the prejudice of your people in any of the premisses shall not be drawn hereafter into Consequence or Example 2 and that your Majesty would be also graciously pleased for the further comfort and safety of your people to declare your Royal Will and Pleasure that in the things aforesaid all your Officers and Ministers shall serve you according to the Laws and Statutes of this Realm as they tender the honour of Your Majesty and the prosperity of this Kingdom Which Petition beâ—ng Read the second of June 1682. the Kings Answer was thus delivered unto it The King willeth that Right be done according to the Laws and Customs of the Realm and that the Statutes be put in due Execution that His Subjects may have no Cause to complain of any wrong or oppressions contrary to their just Rights and Liberties To the Preservation whereof he holds himself in Conscience as well obliged as of his Prerogative But this Answer not giving satisfaction the King was again Petitioned unto that he would give a full and satisfactory answer to their Petition in full Parlinment Whereupon the King in Person upon the seventh of June made this Second Answer My Lords and Gentlemen The Answer I have already given you was made with so good Deliberation and approved by the Judgment of so many Wise Men that I could not have Imagined but that it should have given you full satisfaction but to avoid all ambiguous Interpretations and to shew you that there is no doubleness in my meaning I am willing to please you in words as well as in substance read your Petition and you shall have an Answer that I am sure will please you And then causing the Petition to be read distinctly by the Clerk of the Crown the Clerk of the Parliament read the Kings Answer thereto in these words Soit Droit Fait Come est desire which is Let Right be done as is desired This Answer and the manner of Confirming this Law I have the rather recited because the Kings Answer and Circumstances relating thereunto are wholly left out in our last Printed Book of Statutes The Petition it self is so plain that there needs no Comment thereon only the Reader may observe that the things therein mentioned were the antient Rights of the people and therefore they expresly demand them of the King as their Rights and Liberties In the next place we shall add the late excellent Habeas Corpus Act because relating to the same Subject viz. The freeing of the Subject from causeless tedious and Arbitrary Imprisonments Anno Tricesimo primo Caroli Secundi Regis CHAP. II. An Act for the better securing the Liberty of the Subjest and for prevention of Imprisonments beyond Seas Comonly called the Habeas Corpus Act. I. VVHereas great delays have been used by Sheriffs Goalers and other Officers to whose Custody any of the Kings Subjects have been committed for Criminal or supposed Criminal matters in making Returns of Writs of Habeas Corpus to them directed by standing out an Alias and Pluries Habeas Corpus and sometimes more and by other shifts to avoid their yielding obedience to such Writs contrary to their duty and the known Laws of the Land whereby many of the Kings Subjects have been and hereafter may be long detained in Prison in such Cases where by Law they are Bailable to their great Charges and Vexation II. For the prevention whereof and the more speedy relief of all persons Imprisoned for any such Criminal or supposed Criminal matters 2 Be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament Assembled and by the Authority thereof That whensoever any person or persons shall bring any Habeas Corpus directed unto any Sheriff or Sheriffs Goaler Minister or other person whatsoever for any person in his or their Custody and the said Writ shall be served upon the said Officer or left at the Goal or Prison with any of the under Officers under Keepers or Deputy of the said Officers or Keepers that the said Officer or Officers his or their under Officers or Keepers or Deputies shall within three days after the service thereof as aforesaid unless the Commitment aforesaid were for Treason or Felony plainly and specially expressed in the Warrant of Commitment upon payment or tender of the Charges of bringing the said Prisoner to be Ascertained be the Judge or Court that awarded the same and Endorsed upon the said Writ not exceeding twelve pence per Mile and upon security given by his
Sheriff or other Officer by whom the said VVrit of Capias or any of them shall be Returned as is aforesaid do make an untrue Return upon any the said VVrits that the party named in the said VVrit hath not yielded his Body upon the said Proclamations or any of them where indeed the party did yield himself according to the effect of the same that then every such Sheriff or other Officer for every such false and untrue Return shall forfeit to the party grieved and damnified by the said Return the Sam of 40 l. 2. For the which Sum of 40 l. the said party grieved shall have his Recovery and due Remedy by Action of Debt Bill Plaint or Information in any of the Queens Courts of Record in which Action Bill Plaint or Information no Essoign Protection or Wager of Law shall be admitted or allowed for the party Defendant 10. Saving and Reserving to all Arch Bishops and Bishops and all others having Authority to certisie any person Excommunicated and like Authority to accept and receive the submission and satisfaction of the said person so Excommunicated in manner and form heretofore used 2. And him to Absolve and Release and the same to signifie as heretofore it hath been accustomed to the Queen's Majesty Her Heirs and Successors into the High Court of Chancery 3. And thereupon to have such VVrits for the deliverance of the said person so absolved and released from the Sheriff's Custody or Prison as heretofore they or any of them had or of right ought or might have had any thing in this present Statute specified or contained to the contrary hereof in any wise notwithstanding 11. Provided alwayes That in Wales the Counties Palatines of Lancaster Chester Durham and Ely and in the Cinque Ports being Jurisdictions and places Exempt where the Queen's Majesty 's VVrit does not run and process of Capias from thence not Returnable into the said Court of the King's-Bench after any Significavit being of Record in the said Court of Chancery The Tenour of such Significavit by Mittimus shall be sent to such of the Head Officers of the said Country of Wales Counties Palatines and places Exempt within whose Offices Charge or Jurisdiction the Offenders shall be Resiant that is to say to the Chancellour or Chamberlain for the said County Palatine of Lancaster and Chester and for the Cinque-Ports to the Lord Warden of the same and for Wales and Ely and the County Palatine of Durham to the Chief Justice or Justices there 2. And thereupon every of the said Justices and Officers to whom such Tenour of Significavit with Mittimus shall be directed and delivered shall by virtue of this Estatute have Power and Authority to make like Process to the Inferiour Officer and Officers to whom the Execution of Process there doth appertain Returnable before the Justices there at their next Sessions or Courts two Moneths at the least after the Teste of every such Process 3. So alwayes as in every degree they shall proceed in their Sessions and Courts against the Offenders as the Justices of the said Court of King's-Bench are Limited by the Tenour of this Act in Term-times to do and Execute 12. Provided also and be it Enacted That any person at the time of any Process of Capias aforementioned Awarded being in Prison or out of this Realm in the parts beyond the Sea or within Age or of non sanae memoriae or woman Covert shall not incur any of the pains or forfeitures aforementioned which shall grow by any Return or Default happening during such time of Nonage Imprisonment being beyond the Sea or non sanae memoriae 2. And that by virtue of this Estatute the party grieved may plead every such cause or matter in bar of and upon the distress or other Process that shall be made for Levying of any of the said pains or forfeitures 13. And if that the Offender against whom any such Writ of Excommunicato Capiendo shall be Awarded shall not in the same Writ of Excommunicato Capiendo have a sufficient and lawful addition according to the form of the Statute of Primo of Henry the Fifth in cases of certain Suits whereupon Process of Exigent are to be Awarded 2. Or if in the Significavit it be not contained that the Excommunication doth proceed upon some cause or contempt of some Original matter of Heresie or refusing to have his or their child Baptized or to recieve the Holy Communion as it is now commonly used to be Received in the Church of England or to come to Divine Service now commonly used in the said Church of England or Errour in matters of Religion or Doctrine now received and allowed in the said Church of England Incontinency Vsury Simony Perjury in the Ecclesiastical Court or Idolatry 3. That then all and every pains and forfeitures limited against such persons Excommunicate by this statute by reason of such Writ of Excommunicato capiendo wanting sufficient Addition or of such Significavit wanting all the Causes afore mentioned shall be utterly void in Law 4. and by way of Plea to be allowed to the party grieved 14. And if the Addition shall be with a Nuper of the place Then in every such case at the Awarding of the first Capias with Proclamation according to the form mentioned one VVrit of Proclamation without any pain expressed shall be Awarded into the County where the Offender shall be most commonly Resiant at the time of the Awarding of the said first Capias with pain in the same VVrit of Proclamation to be returnable the day of the return of the said first Capias with pain and Proclamation thereupon at some one such time and Court as is Prescribed for the Proclamation upon the said first Capias with pain 2. And if such Proclamation be not made in the County where the Offender shall be most commonly Resiant in such cases of Addition of Nuper That then such Offenders shall sustain no pain or forfeitures by vertue of this Statute for not yielding his or her body according to the Tenour afore-mentioned any thing before specified and to the Contrary hereof in any wise Notwithstanding The Comment With a Discourse of the Nature of Excommunication and how to prevent or take off the VVrit De Excommunicato Capiendo THough Excommunications pretend a Title Jure Divino as an Institution of Christ and therefore his Sacred Name is therein made use of and several other Spiritual Phrases purporting that the same and all proceedings thereunto are by his Authority yet they being so commonly thundered out by persons who have immediately no Authority from our Lord or his Word to manage them and for such trivial Crimes as no Law of God hath ordered them against and in such a Light and precipitant manner as no part of Holy Scripture warranteth The wiser sort of men do therefore look upon them rather as Excommunings or a sort of Civil punishment like that in use among
the Romans Interdico tibi aqua igni than one of the solemn Institutions of God And therefore waving any discourse of what Spiritual Influence or Effect may be dreaded from the same in our dayes which we hope are wise enough not to be Bug-Bear'd with that Maxim of the Canonists Excommunicatio sive Justa sive Injusta est timenda A Church-Curse be it Just or Unjust is to be feared All that we shall speak to is matter of Law for so it is that there are Legal Bars and punishments formed by our Temporal Laws as long as the Legislative Power shall not be at leisure to consider of them and if they find it requisite Repeal them For 1. A person Excommunicated is forthwith disabled to Sue in any of His Majesties Courts not that thereby he loses his Right for ever but the Excommunication may be pleaded in Abatement of his present Action till the same is taken off by an Absolution Yet note That whosoever is Instrumental in procuring solliciting decreeing or pronouncing the Excommunication shall never be allowed to plead it nor shall it be pleaded unless the Excommunication be signified by the Bishop himself for the Court will receive no Certificate from any to whom they cannot write to Absolve the person if they find cause 2. Likewise though a person Excommunicated may be appointed an Executor and is capable of having a Legacy given him yet so-long as he stands Excommunicated he is not to be allowed to prove the Will nor Sue for his Legacy in the Spiritual Court But note whereas some say a man Excommunicated cannot Marry 't is Non-sense for Marriage is de Jure Naturali and alike absurd it is for any to pretend that such a person cannot give his Suffrage in any Election as for Example of Parliament-men for the same is an idle dream the Law allows him a Voice so long as he hath a Free-hold of Forty Shillings per Annum though he were under forty Curses 3. If a person justly or unjustly Excommunicated continue so by the space of forty dayes then by the Common Law the Bishop certifying the same into Chancery which is called a Significavit there shall issue forth a Writ from thence to the Sheriff of the County where the party lives to Imprison him without Bail or Mainprize till he hath made satisfaction to Holy Church This is called a Writ de Excommunicato Capiendo and such Imprisonment of a person Excommunicated by a Civil Sanction is not practised in any Nation in the world but ours and if it had here too been Buried with its Brother de Haeretico Comburendo I believe it would have had few Tears at its Funeral But at Common Law the same Writ being not Returnable in any Court the Sheriffs took their own time and used their discretion in Executing it to inforce which this Statute was made whereby it is Enacted 1. That the said Writ shall be Returnable in the King's Bench yet the Sheriff need not bring thither the Body 2. If the Sheriff Return Non est Inventus a Capias shall be Awarded with Proclamation to come in with six dayes if the party do not he forfeirs 10 l. and thenceforwards Capias after Capias and 20 l. forfeited on each 3. But note there are two Cases in which though a man stands out never so many Proclamations he shall forfeit nothing And they two are these 1. VVhere the Party against whom the VVrit De Excommunicato Capiendo is Awarded hath not therein a sufficient and lawful Addition That is saith Cowel a Title over and above his Christian and Sirname shewing his State Degree Trade Occupation or Mystery as Lord Knight Gentleman Yeoman Clothier and the like and the Hamlet Town Parish and County where he is or lately was conversant and dwelling And if it be with a Nuper late of such a place then you see there must be made out one Capias without any penalty 2. VVhere it is not expressed in the Bishops Certificate that the Cause for which the party was originally Cited into the Spiritual Court was for one of these 10 Causes following viz. 1. Heresie 2. Refusing to have Children Baptized 3. Refusing to Receive the Communion 4. Refusing to come to Divine Service 5. Errour in Religion or Doctrine 6. Incontinency 7. usury 8. Simony 9. Perjury in the Ecclesiastical Court or 10. Idolatry To know whether there be such cause expressed you may have a Copy of the Significavit at the Cursitors Office in Chancery-Lane Then in either of these cases all pains and forfeitures limited by this Statute by reason of such VVrit of Excom Cap. wanting such an Addition or Significavit wanting all the causes aforesaid shall be utterly void in Law and by way of plea to be allowed to the party grieved Touching the Authority of the Courts called Spiritual or Ecclesiastick whether they have truly any at all by our present Laws I shall not here debate they that have a mind to hear what is to be said on that Theme may read Mr. Hickeringil's Book of Naked Truth or Mr. Care 's Book written in the year 1664. entituled A true Guide for all persons concerned in Ecclesiastical Courts neither of which I ever yet saw sufficiently Answered yet still since most certain it is that such Courts do proceed and Act we shall suppose them to have some Power and only inform our Reader of the course of their practice as it is used at this day and his best course to defend himself You must note that persons are usually Excommunicated upon Contempt or Contumacy which may be 1. If the party being duly Cited Denieth or Omitteth to appear For if he be not personally summoned he needs not appear the first time but then their way is to Cite him by a Writ called Viis Modis set up at the Doors of his House or at the Church Doors Citing him at a certain day to appear to answer c. But being personally Cited if he doth not appear the first time or whether he be or no if he doth not appear the second time he is Excommunicated for Contempt If he be Cited generally the Law is That he shall appear the third day after the Service of the Citation The Law also is that if he he will give the Apparator 6d he must bring him the full and true Copy of the Citation If a day of appearance be mentioned and the same be not at least the third day from the Citation or if he hath before witnesses given the Apparator 6d to bring him a full and true Copy of the Citation and he doth not I conceive he needs not appear but listen what they do and if they decree him Excommunicated he may Appeal within 15 daies and bring from the Superiour Court an Inhibition to stop their proceedings against him And further the Rule in that Law is Totus dies debetur Delinquenti It is enough for a person to appear any hour of
the day provided it be a Court-hour wherein he is Cited to appear so as though he be called before he comes vet if he appeareth that day he shall be discharged or he may Appeal 2. When he appeareth he shall demand his Charge which is either by a Presentment from Church-Wardens or by a Libel or Articles which are exhibited by a Promoter Be it which it will he shall demand a Copy if it be denyed or delayed he may bring if he will a Prohibition from the King's Court at Westminster forbidding them to proceed in that Cause till they have given a full and true Copy of his Charge according to the Statute of 2 Hen. 5. Ca. 3. If he appeareth in person he ought to have his Charge the first Court-day if he appeareth by a Proctor they will usually to get the Proctor more Fees give to the second Court-day to bring in the Libel or Articles 4. If they deliver him not his Charge the second Court-day he may Appeal if upon his demand the Judge will not dismiss him or he may if he will bring his Prohibition for want of Articles and stop their further proceedings 5. If the proceedings be upon a Promotion and the Promoter hath Imployed a Proctor in the Case the party accused must know that no Proctor can be admitted without a Proxy that is Letters Procuratory under the Promoter's Hand and Seal authorizing him to act for him in the Case and when he hath that there must be an Act entred in Court to admit such a person Proctor in the Case The party charged may go or send to the Register and demand a sight of both those the Reason in Law is this because any Proctor is liable to the Parties Action if he molesteth any person in the name of another without Authority from him And secondly If there be no Act of Court admitting him as a Proctor though the party accused be Conqueror in the case yet he cannot Recover Costs because there is no Legal Adversary against whom they can be Recovered 6. According to the Statute-Law Every Informer if overthrown shall pay charges According to the Civil and Canon Law none ought to be admitted as a Voluntary Promoter till he hath given security to pay the Charges If overthrown The Party Accused therefore shall before he answereth the Articles demand this if it be denied by the Judge he may Appeal to the Superiour Court It is also worth the persons Enquiry who is Accused to be well advised whether the Promoter in the Ecclesiastical Courts be not obliged to all those things that an Informer in the Secular Courts is tied to by the Statutes 31 Eliz. 5. 18. Eliz. 5. 21. Jac. 4. The Reason is because those Statutes say Informers Upon any Penal Statutes and commonly Promoters in the Ecclesiastical Courts say such and such things are done contrary to the Statutes of this Realm as well as contrary to the Canons now what things the Statutes which also name Promoters Require of such Informers and Promoters the Statutes do declare 7. VVhen the Party Accused hath a Copy of his Libel let him demand time to answer If the Judge denies him time at least till the next Court-day let him Appeal Having due time granted in the mean time let him duly consider the matter and form of his Libel As to which let him amongst other things observe these that follow 1. VVhether the matters he be Charged with belong to the Cognisance of the Ecclesiastical Court If Lawyers tell him no let that be his Answer and let him hasten to bring his Prohibition which Lies in all such Causes 2. VVhether they have put into the Libel the Promotors Petition for Right and Justice to be done him it is oft times left out It is a Rule in their Law Libellus est ipso Jure nullus ubi nihil Petitur If he finds that this is wanting let his Answer only be That the Libel is in Law utterly void and Insufficient and desire to be dismissed If the Judge refuseth to dismiss him let him Appeal 3. Let him also Observe whether he be in the Articles laid to be one of the Diocess or a Parishoner of such a Parish for it be not laid it can never be proved and so the Promotor must fail in his Suit for what is not laid cannot be proved Quicquid deponitur Extra Articulum deponitur Extra Legem is a Rule in their Law If he be said to be a Parishioner of such a place within such a diocess let him not in his Answer Confess it but say He cannot determine the Bounds of Diocesses and parishes but for that he Referreth himself to the Law 4. Let him also observe if the things he be Charged to have done or omitted be within the compass of a year and whether there hath been since no Act of Grace or Oblivion which hath pardoned them and whether they be not such things as he hath been punished for or such things as the Statute-Law hath Limited the prosecution of to a less time than a year For if any of these things be they may be given in answer to avoid eithor the whole or any part of the Charge If the Judge will not accept the Answer the party may Sue out a Prohibition and stop them 5. Let him also observe whether he be charged certainly or particularly as to time and place or only generally and incertainly if he be charged only generally as for the most part he is in Church-VVardens Presentments not mentioning time and place or incertainly with Or 's that he did not come to his Parish-Church such and such months and daies or was absent in some one or more or most of them Let his Answer be that this Charge is void in Law for the generality or incertainty of it If the Judge will not Receive his Answer let him Appeal for the Law of England alloweth no such Charges from which can be no Discharge or where the Crime is not fixed to a certain time But it may be in this Case a Prohibition will be his best Remedy 6. Let him observe whether he be charged only upon Statute-Law or upon Canons if upon Canons let him in his Answer modestly refer himself to Persons Learned in the Statute-Laws whether any such Canons were ever Enacted Ratifyed Allowed or Confirmed by Parliament or by the Established Laws of the Land as they stood in the year 1639. and if not whether they be not made void by the Statute 13. Car. 2. 10. When he hath given his Answer which must be subscribed by his own hand it is usual for the Adverse Proctor to demand a time to prove his Articles for which the Judge at his pleasure granteth two three four or six Court-daies usually but two let him also at the same time move that he may have liberty within that time also to produce any Witnesses for his Defence if it be denied let him Appeal 11. Let him observe what time
always those of the most Integrity and Skill in the Laws Their places are so Honourable and Profitable and their Tenure so Ticklish viz. durante beneplacito meerly during pleasure that they lie under no small Temptations which perhaps with some may be never the less unlikely to prevail for their having generally been wont before to take Fees They are concern'd in so many Causes that they are the oftner subject to be tempted and are so few that they may be the easier corrupted They cannot be Challenged and may be apt to think themselves above any Action and thence be encouraged to strain a point now and then The major part of them agreeing is enough they are never sworn at each particular Trial nor ever at all but once and that exceeding generally I say all these things may possibly sometimes happen to Biass some Judges for I intend not the least Reflection hereby on any of those Honourable Persons who at present deservedly supply our seats of Justice But nothing of that kind can reasonably happen to a Jury For 1. They are return'd by a sworn Officer 2. Must be men of a clear Reputation and competent Estate 3. Being Neighbours they may know something of the business on their own knowledge 4. Their Office is but a trouble not accompanyed with any great Honour nor any profit at all 5. They are all solemnly sworn to each particular Cause 6. The party may challenge 35 in case of Treason and 20 of them in Felony without shewing any cause and as many more as he can assign cause against 7. Of the Grand Jury Twelve at least must joyn in the Verdict and of the petty Jury every man of the Twelve must consent upon his Oath or else 't is all nothing And lastly if they give a corrupt Verdict between Party and Party they are liable to an Attaint But I do not find any Attaint lies in Criminal Causes where the King is a Party Now let any man of Sence consider whether this method be not more proper for bolting out the Truth for finding out the Guilty and preserving the Innocent than if the whole decision were left to the Examination of a Judge or two or three whose Interests Passion Haste or Multiplicity of business may easily betray them into Error Deservedly therefore is this Priviledge of Tryal by Juries rank'd amongst the choicest of our Fundamental Laws which whosoever shall goe about openly to Suppress or craftily to Vndermine and render only a Formality does Ipso Facto attacque the Government and brings in an Arbitrary Power and is an Enemy and Traitor to his King and Countrey For which reason English Parliaments have all along been most Zealous for preserving this great Jewel of Liberty Trials by Juries having no less than 58. several times since the Norman Conquest been established and Confirmed by the Legislative Power no one Priviledge besides having been neer so often remembred in Parliament SECT II. What persons ought to be Jury-men and how Qualified AS the Office of Juries is of such great Importance so the Wisdom of our Law has provided that the same shall be supplyed with Persons of Ability Honesty Integrity and Indifferency for as my Lord Cook saith 1. part Instit Sect. 234. fo 155. He that is of a Jury must be Liber Homo that is not only a Free man and not Bond but also one that hath such Freedome of mind as he stands indifferent as he stands unsworn 2. He must be Legalis and by the Law every Juror that is returned for the Trial of any Issue or Cause ought to have three properties 1. He ought to be dwelling most near to the place where the Question is moved 2. He ought to be most sufficient both for understanding and Competency of Estate 3. He ought to be least Suspicious that is to be indifferent as he stands Unsworn and then he is acounted in Law Liber Legalis homo otherwise he may be Challenged and not suffered to be Sworn but a mans being Excommunicated as was said before is no Barr to his being a Jury man much less his being a Dissenter or Non-frequenter of Church Ceremonies if he be otherwise qualified with Estate and Understanding for at that rate if Popery should ever get uppermost No Protestant at all would be capable of being a Jury-Man because a Non-Conformist to Holy Church Now if no Statute excludes Protestants unconvicted of any Crime or Dissenters quâ tales to serve on Juries I should think we ought to wait at least till an Act of Parliament be made to that purpose before we deny them Liberam Legem and to Act otherwise in my silly Opinion seems not only unwarrantable but a daring Usurpation of Legislative Power In a word Jurors must be free of and from all manner of Bondage Obligations Affections Relations and Prejudices they must be the Peers or Equals of the party they are to Try they must be of full Age 21 Years old or upwards not Outlaw'd never Attainted or Convicted of Treason Felony False Verdict Perjury or adjudged Infamous they were anciently all Knights as we read in Glanvil and Bracton and they must still be persons of worth and repute and as they are returned by a Sworn Officer the Sheriff so they of the petty Jury must be every one Sworn every several Trial by a particular Oath the more to remind them of their Duty Nay it should seem in ancient times thō the Office and Duty were still the same as at this day yet their Honour and Dignity were much greater The Mirrour of Justices a great part of which was Written before the Conquest and augmented by Andrew Horn a Learned Lawyer in the time of King Edw. the 2d p. 209. in the French and 153. in the English makes no scruple to call them JVDGES Judges Ordinaries sunt Suitors and Dr. Cowel in his Interpreter tells us Juries were anciently Associates and Assistants to the Judges of the Court in a kind of Equality whereas now a dayes they attend them in great Humility And cites the Customary of Normandy and Lambert as being of the same Sentiment Nay many Wise and Learned men have wondred that since the Law has conferr'd such ample power on Jury-men why they should have no kind of mark of Honour or Distinction as liberty to Sit with their Hats on from the time they are Sworn to the Delivery of their Verdict or the like For as the Custom is now a dayes they sitting amongst the Croud with their Caps off as well as the worst Malefactors they are to Trye 't is not easie knowing them from the rest of the Spectators But this Obiter I desire not to bring in Innovations but only that English men may preserve their ancient undoubted Priviledges to which purpose it will concern all that are liable to be Summoned to serve on Juries heedfully to Inform themselves of their Duty and Office by Law that so they may uprightly discharge the
Laws of the Kingdom A DIGRESSION touching the Antiquity Vse and Power of PARLIAMENTS and the Qualification of such Gentlemen as are fit to be chosen the Peoples Representatives THe Recital of these several Laws for frequent calling of Parliaments declaring the same to be of such Importance or Necessity to the safety and wel-being of the Nation Invites us to give the vulgar Reader some further Information touching those most Honourable Assemblies which though a digression will I hope be no Transgression for I am willing at any time to go a little out of my way provided I may thereby meet with the Readers profit and Advantage Of the Names and Antiquity of Parliaments THe word PARLIAMENT is French derived from the three words Parler la ment to speak ones mind because every Member of that Court should sincerely and discreetly speak his mind for the general good of the Common-Wealth and this name saith Cook 1 Instit fo 110. was used before William the Conquerer even in the time of Edward the Confessor But most commonly in the Saxons time it was called Michegemote or Witenage Mote that is the Great Mote Meeting or Assembly whence our Ward-Mootes in London receive their name to this day or the Wise-Moote that is the Assembly of the wise men and Sages of the Land But this word Parliament is used in a double sense 1. Strictly as it includes the Legislative Power of England as when we say An Act of Parliament and in this Acceptation it necessarily includes the King the Lords and the Commons each of which have a Negative Voice in making Laws and without their joint Consent no new Laws can pass that be obligatory to the Subject 2. Vulgarly the word is used for the Two Houses the Lords and Commons as when we say the King will call a Parliament his Majesty has Dissolved his Parliament c. The Lords of Parliament are divided into two sorts viz. Spiritual that is to say the Bishops who sit there in respect of their Baronies parcel of their Bishopricks which they hold in their Politick Capacity and Temporal The Commons are likewise divided into three Classes or parts viz Knights or Representatives of the Shires or Counties where note that though the Writ require two Knights to be chosen and that they are called Knights yet there is no necessity that they should actually have the degree of Knighthood provided they be but Gentlemen for the Statute 23 Hen. 6. cap 15 hath these words That the Knights of the Shires for the Parliament hereafter to be Chosen shall be not able Knights of the same Counties for which they shall be chosen OR OTHERWISE such Notable Esquires or Gentlemen born of the same Counties as shall be able to be Knights and no man to be such Knight which standeth in the degree of a Yeoman and under Secondly Citizens chosen to Represent Cities Thirdly Burgesses that is to say those that are chosen out of Boroughs Note that the difference between a City and a Borough is this a City is a Borough Incorporate which is or has within time of Memory been an Episcopal See or had a Bishop and this althô the Bishoprick be Dissolved as West minster having heretofore a Bishop though none now still remains a City Cook 1. Instit Sect 164. Boroughs are Towns Incorporated but such as never had any Bishops Of the Three Estates in Parliament THere has been a great debate about the Three Estates some zealously pleading That the Bishops are one of the three Estates of the Realm and the Lords Temporal a Second and the Commons-house the Third and the King over all as a Transcendent by himself Others as stifly deny this and assign the King as he his the Head of the Common Wealth to be the first Estate the Lords as well Spiritual as Temporal jointly to be the Second and the Commons-House the Third Non opis est nostrae tant as Componere Lites We shall not presume to undertake a decision of this arduous Controversy but in our poor opinion the matter seems to appear more difficult than really it is by means that the contending Parties do not first plainly set down what it is they severally mean by the word Estate Which may be taken 1. For a rank degree or Condition of Persons considered by themselves different in some notable Respects from others wherewith they may be compared And in this respect my Lords the Bishops may very properly be said to be an Estate or one of the Estates of the Realm for then there will be several Estates above the number of three for so in the House of Commons there may be said to be three Estates viz. Knights Citizens and Burgesses And heretofore in the days of Popery when there were 26 Abbots and Priors that held per Baroniam too as well as the Bishops called to the Parliament and sat in the Lords House see Fullers Church History Lib. 6. 292. Whether they being Religious and Monastical Persons whereas the Bishops were Seculars no small difference in their account might not as well claim to be a distinct Estate by themselves as now the Bishops do may be a question But secondly When we spake of three Estates in the Constitution of our English Government 't is most natural to mean and intend such a poize in the Ballance or such an Order or State as hath a Negative Voice in the Legislative Power For as the King and Commons excluding the Lords so neither the King and Lords excluding the Commons much less the Lords and Commons excluding the King can make any Law but this glorious Triplicity must be in mutual Conjunction and then from their united Influences spring our happy Laws But in this sence the Lords Spiritual by themselves have no pretence to be a distinct Estate That is they have by themselves no Negative Voice which I conceive the proper Characteristick or essential Mark of each of the three Estates For suppose a Bill pass the Commons and being brought into the Lords House all the 26 Bishops should be against it and some of the Temporal Lords yet if the other Temporal Lords be more in number than the Bishops and those that side with them the Bill shall pass as the Act of the whole house and if his Majesty please to give it his Royal Assent is undoubted Law Which demonstrates the Bishops have of themselves no Negative Voice and consequently are none of the three Estates of the Realm But if any will have them called an Estate and mean something else be it if he please to explain his Notion 't is like I shall not contend with him about a fiddle faddle word Touching the Power of the Parliament THe Jurisdiction of this Court saith Cook 1 Instit Sect. 164. is so Transcendent that it maketh Inlargeth Diminisheth Abrogateth Repealeth and reviveth Laws Statutes Acts and Ordinances concerning matters Ecclesiastical Civil Martial Marine Capital Criminal and common And 4 Instit Fol. 36.