accord voluntarily and freely give 5 Nor take nor receive any other or greater Sum or Sums for each nights Lodging or other Expences than what is reasonable and fitting in such cases or shall be so adjudged by the next Justice of the Peace or at the next quarter-Quarter-Sessions 6. And shall not cause or procure the said person or persons to pay for any other Wine Beer Ale Victuals Tobacco or other things than what the said person or persons shall voluntarily freely and particularly call for And that every Under-Sheriff Gaoler Keeper of Prison or Gaol and every person or persons whatsoever to whose Custody any person or persons shall be delivered or commited by virtue of any Writ of Process or any pretence whatsoever shall permit and suffer the said person or persons at his and their will and pleasure to send for and have any Beer Ale Victuals and other necessary Food where and from whence they please and also to have and use such Bedding Linnen and other things as the said person or persons shall think fit without any purloyning detaining or paying for the same or any part thereof nor shall demand take or receive of the said person or persons any other or greater Fee or Fees whatsoever for his her or their Commitment Release or Discharge or for his her or their Chamber-Rent than what is allowable by Law untill the same shall be settled by three Justices of the Peace whereof one to be of the Quorum of each particular County City and Town Corporate in their several Precincts and for the City of London and Counties of Middlesex and Surrey the two Lord Chief Justices of the Kings's-Bench and Common-Pleas and the Lord Chief Baron or any two of them and the Justices of the Peace of the same in their several Jurisdictions And likewise that the said Lord Chief Justice Lord Chief Baron and Justices of the Peace in their several Jurisdictions and all Commissioners for Charitable Uses do their best Endeavours and Diligence to Examine and finde out the several Legacies Gifts and Bequests bestowed and given for the Benefit and Advantage of the Poor Prisoners for Debt in the several Gaols and Prisons in this Kingdom and to send for any Deeds Wills Writings and Books of Accompts whatsoever and any person or persons concerned therein and to Examine them upon Oath to make true discovery thereof which they have full Power and Authority hereby to do and the same so found out and ascertained to order and settle in some manner and way that the Prisoners hereafter may not be defrauded but Receive the full benefit thereof according to the true intent of the Donors And that these Accounts of the several Legacies Gifts and Bequests given and bestowed upon the several Prisoners for Debt within this Kingdom and the several Rates of Fees and the future Government of Prisons be signed and confirmed by the Lord Chief Justices and Lord Chief Baron or any two of them for the time being and the Justices of the Peace in London Middlesex and Surrey and by the Judges for the several Circuits and Justices of the Peace for the time being in their several Precincts and fairly written and hung up in a Table in every Gaol and Prison before the first day of November 1671. and likewise be Registred by each and every Clerk of the Peace within his or their particular Jurisdiction And after such Establishment no other or greater Fee or Fees than shall be so Established shall be Demanded or Received And whereas it is become the common practice of Gaolers and Keepers of Newgate the Gate-house at Westminster and sundry other Gaols and Prisons to Lodge together in one Room or Chamber and Bed Prisoners for Debt and Felons whereby many times honest Gentlemen Trades-men and others Prisoners for Debt are disturbed and hindered in the night-time from their natural Rest by reason of their Fetters and Irons and otherwise much offended and troubled by their lewd and prophane Language and Discourses with most horrid Cursing and Swearing much accustomed to such persons 2. Be it Enacted by the Authority aforesaid that it shall not be lawful hereafter for any Sheriff Gaoler or Keeper of any Gaol or Prison to put keep or Lodge Prisoners for Debt and Felons together in one Room or Chamber but that they shall be put kept and Lodged separate and apart one from another in distinct Rooms 3. Upon pain that he she or they which shall offend against this Act or the true Intent and meaning thereof or any part thereof shall forfeit and lose his or her Office Place or Imployment and shall forfeit treble damages to the party grieved to be Recovered by vertue of this Act any Law Statute Usage or Custom to the contrary in any wise notwithstanding And to the End that English-men may more entirely enjoy their due Freedoms the prudence of our Legislators have thought fit from time to time to Remove Encroachments thereupon though under pretence of Jurisdictions and Courts of Justice and to prohibit any Exorbitant Arbitrary Power for the future but that all things may be left to the calm and equal proceedings of Law and that most excellent Method of Trial by Juries one of the principal Bulwarks of England's Liberties For an Instance hereof take the Act following An Act for Regulating of the Privy Council and for taking away the Court commonly called the Star-Chamber VVHereas by the Great Charter many times confirmed in Parliament it is Enacted That no Freeman shall be taken or Imprisoned or Disseized of his Freehold or Liberties or Free Customs or be Outlawed or Exiled or otherwise destroyed and that the King will not pass upon him or condemn him but by lawful Judgment of his Peers or by the Law of the Land 2. And by another Statute made in the fifth year of the Reign of King Edward it is Enacted That no man shall be Attached by any Accusation nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattels seized into the King's Hands against the Form of the Great Charter and the Law of the Land 3. And by another Statute made in the five and twentieth year of the Reign of the same King Edward the third it is Accorded Assented and Established That none shall be taken by Petition or Suggestion made to the King or to his Council unless it be by Indictment or Presentment of good and lawful people of the same Neighbourhood where such Deeds be done in due manner or by Process made by Writ Original at the Common Law and that none be put out of his Franchise or Freehold unless he be duly brought in to Answer and fore-judged of the same by the course of the Law And if any thing be done against the same it shall be Redressad and holden for none 4. And by another Statute made in the eight and twentieth year of the Reign of the same King Edward the Third it is amongst other things Enacted That
Justice Justices or chief Magistrate respectively are hereby impowered and required to levy the same by Warrant as aforesaid upon the Goods Chattels of any such persons who shall be present at the same Conventicle any thing in this or any other Act. Law or Statute to the contrary notwithstanding and the Money so levied to be disposed of in manner aforesaid 3. And if such Offender so convicted as aforesaid shall at any time again commit the like Offence or Offences contrary to this Act and be thereof convicted in manner aforesaid then such Offendor so convicted of such like Offence or Offences shall for every such Offence incur the penalty of Forty pounds to be levied and disposed as aforesaid 4. And be it further enacted by the Authority aforesaid That every person that shall wittingly and willingly suffer any such Conventicle Meeting or unlawful Assembly aforesaid to be held in his or her House Out-house Barn Yard or Backside and be convicted thereof in manner aforesaid shall forfeit the sum of 20 l. to be levied in manner aforesaid upon his or her Goods and Chattels or in case of his or her poverty or inability as aforesaid upon the Goods and Chattels of such persons who shall be convicted in manner abovesaid of being present at the same Conventicle and the Money so levied to be disposed of in manner aforesaid 5. Provided always and be it enacted by the Authority aforesaid That no person shall by any clause of this Act be liable to pay above Ten Pounds for any one Meeting in regard of the poverty of any other person or persons Provided also and be it further enacted That in all cases of this Act where the penalty or sum charged upon any Offendor exceeds the sum of Ten shillings and such offendor shall find himself aggrieved it shall and may be lawful for him within one Week after the said penalty or Money charged shall be paid or levied to appeal in writing from the person or persons convicting to the judgment of the Justices of the Peace in the next Quarter-Sessions 2. To whom the Justice or Justices of Peace chief Magistrate or Alderman that first convicted such offendor shall return the Money levied upon the Appellant and shall certifie under his and their Hands and Seals the Evidence upon which the conviction past with the whole Record thereof and the said Appeal 3. Whereupon such Offendor may plead and make defence and have his Tryal by a Jury thereupon 4. And in case such Appellant shall not prosecute with effect or if that upon such Trial he shall not be acquitted or Judgment pass not for him upon his said Appeal the said Justices at the Sessions shall give treble costs against such Offendor for his unjust Appeal 5. and no other Court whatsoever shall intermeddle with any cause or causes of Appeal upon this Act but they shall be finally determined in the quarter-Quarter-Sessions only 7. Provided alwaies and be it further Enacted that upon the delivery of such Appeal as aforesaid the person or persons appellant shall enter before the person or persons Convicting into a Recognizance to Prosecute the said Appeal with Effect 2. Which said Recognizance the Person or Persons Convicting is hereby Impowered to take and Required to Certifie the same to the next quarter Sessions 3. And in Case no such Recognizance be entred into the said Appeal to be null and Void 8. Provided alwaies that every such Appeal shall be left with the Person or Persons so Convicting as aforesaid at the time of the making thereof 9. And be it further Enacted by the Authority aforesaid that the Justice Justices of the Peace and Chief Magistrate respectively or the respective Constables Headboroughs and Tything-men by Warrant from the said Justice Justices or Chief Magistrate respectively shall and may with what Aid Force and Assistance they shall think fit for the better Execution of this Act after Refusal or Denial to enter break open and enter into any House or other place where they shall be Informed of any such Conventicle as aforesaid is or shall be held as well within Liberties as without 2. And take into their Custody the Persons there unlawfully Assembled to the Intent they may be proceeded against according to this Act 3. And that the Lieutenants or Deputy Lieutenants or any Commissionated Officer of the Militia or other of his Majesties forces with such Troops or Companies of Horse and Foot and also the Sheriffs and other Magistrates and Ministers of Justice or any of them jointly or severally within any of the Counties or Places within this Kingdom of England Dominion of Wales or Town of Berwick upon Tweed with such other Assistance as they shall think meet or can get in Readiness with the soonest on Certificate made to them respectively under the Hand and Seal of any one Justice of the Peace or Chief Magistrate of his particular Information or Knowledge of such unlawful Meeting or Conventicle held or to be held in their respective Counties or Places and that he with such Assistance as he can get together is not able to suppress and dissolve the same shall and may and are hereby required and enjoyned to Repair unto the place where they are so held or to be held and by the best means they can Dissolve Dissipate or prevent all such unlawful Meetings and take into their Custody such and so many of the said Persons so unlawfully Assembled as they shall think fit to the Intent they may be Proceeded against according to this Act. 10. Provided alwaies that no Dwelling-house of any Peer of this Realm where he or his Wife shall then be Resident shall be searched by vertue of this Act but by immediate Warrant from his Majesty under his Sign Manual or in the Presence of the Lieutenant or one Deputy Lieutenant or two Justices of the Peace whereof one to be of the Quorum of the same County or Riding 11. And be it further Enacted by the Authority aforesaid that if any Constable Headborough Tythingman Church-warden or Overseer of the Poor who Shall know or be credibly Informed of any such Meetings or Conventicles held within his Precincts Parishes or Limits and shall not give Information thereof to some Justice of the Peace or the chief Magistrate and endeavour the Conviction of the Parties according to his Duty but such Constable Headborough Tything-man Church-warden Overseers of the Poor or any person lawfully called in Aid of the Constable Headborough or Tything-man shall wilfully and wittingly omit the performance of his Duty in the Execution of this Act and Be thereof Convicted in manner aforesaid he shall forfeit for every such Offence the Summe of five Pound to be Levyed upon his Goods and Chattels and disposed in manner aforesaid 2. And that if any Justice of the Peace or Chief Magistrate shall wilfully and wittingly omit the Performance of his Duty in the Execution of this Act he shall forfeit the Summe of one
be Indicted for Burglary 7. There is no power given to break Doors for Levying the Penalties therefore let the Constables and Officers be wary what they do in that Case 8. Constables would do well to know and assert the Dignity of their Office they are not to run up and down like Lacquies after the Capricio's of every Justice and spend the Lords day Prophanely in hunting after Meetings if the Justices are upon sufficient Oath Inform'd of a Meeting and will make out a Warrant specifying where it is you 'l goe but to ramble about with them from this place to that you are not obliged no more are you to seize or Imprison persons on the verbal Command of any Justice unless in visible Breach of the Peace but you must have a Warrant specifying the persons Name and Offence before you can lay hold of him or else you may repent it when sued another day for false Imprisonment 9. Since by the Statute of the 29 of Car. 2d. Cap. 7. It is Enacted in these words Provided also that no Person or Persons upon the Lords day shall serve or Execute or cause to be served or Executed any Writ Process Warrant Order Judgment or Decree except in cases of Treason Felony or Breach of the Peace but that the service of every such Writ Process Warrant c. shall be void to all Intents and Purposes whatsoever and the Person or Persons so Serving or Executing the same shall be as liable to the suit of the party grieved and answer Damages to him for doing thereof as if he or they had done the same without any Writ Process Warrant Order Judgment or Decree at all It will concern all Constables and Officers to consider with what safety they can execute any such Warrants at all on the Lords day on peaceable Meetings it being evident that every man they disturb by Colour of such Warrant on that day has by this Statute a good Action against them And so much for Laws against Dissenters In the next place according to our Promise we shall here add an Abstract of the Laws against Popery and Papists and perhaps as 't is said where there are most Laws there are most Offences so here we may say though there be such abundance of Acts of such severe and various Penalties yet there are scarce any sort of Criminals more rarely brought to Conviction or Punishment THE second Refusal of the Oath of Supremacy punisht as High Treason 5 Eliz. 1. To maintain or Extol Authority of the Sea of Rome the second time High Treason 5 Eliz. 1. To obtain or put in Use any Bull from Rome High Treason 13 Eliz. 2. To perswade or Reconcile OR TO BE RECONCILED to the Roman Religion High Treason 23 Eliz. 1. 3 Jac. 4. For Jesuite or Priest made by Authority from the Pope to come into or remain in the Kings Dominions High Treason 27 Eliz. 2. So for remaining in a Seminary six Months after Proclamation and afterward Returning High Treason 27 Eliz. 2. For Concealing of a Bull or other Instrument from Rome or reconciliation offer'd Punisht as Misprision of Treason 13 Eliz. 2. To maintain or conceal those who perswade or are Reconciled to the Roman Religion Misprision of Treason 23 Eliz. 1. To Receive Relieve Comfort Jesuit or Priest knowing him to be such Punisht as Felony 27 Eliz. 2. To go and serve a Foreign Prince having not before taken the Oath of Allegiance and entred Bond not to be Reconciled to the Roman Religion Felony 3 Jac. 4. The first Refusal of the Oath of Supremacy is Punisht as in Case of a Premunire which imports a forfeiture of all Lands and Goods Imprisonment for Life and a Deprivement of the Benefit of Law 5 Eliz. 1. To set forth or defend Power Spiritual in the Sea of Rome Premunire 5 Eliz. 1. To Bring or Receive any Agnus Dei Crosses Pictures or such like from Rome Premunire 13 Eliz. 2. 23 Eliz. 1. To aid any Person who hath put in Use any Bull from the Sea of Rome Premunire 13 Eliz. 2. 23 Eliz. 1. To send or give Relief to any continuing in Colledges or Seminaries beyond Sea Premunire 27 Eliz. 2. Refusal of the Oath of Allegiance upon the second Tender Premunire 3 Jac. 4. 7 Jac. 6. For not Discovering of Priests made beyond the Seas Imprisonment 27 Eliz. 2. Upon Indictment of Recusancy by Proclamation Imprisonment 29 Eliz. 6. Those that are not able or fail to pay their Forfeitures are to be Imprisoned until Payment or Conformity 23 Eliz. 1. Women Covert Imprisoned for Refusal of the Oath of Allegiance 3 Jac. 4. For non-Payment of twelve pence for every Sunday Imprisonment 3 Jac. 4. Women Covert Convicted for Recusancy Imprisoned till her Husband pay ten Pounds a Month or a third part of his Lands 7 Jac. 6. Standing Excommunicated for Recusancy House may be broken up for his Apprehension 7 Jac. 6. Those who shall forbear to come to Church by the space of twelve Months bound to good Behaviour with Surety in the Kings-Bench 23 Eliz. 1. Every Recusant is Confin'd to five Miles Compass for Life 23 Eliz. 2. To ten Miles distant from London 3 Jac. 5. Not to come into the House where the King or his Heir Apparent is 3 Jac. 5. For absence from Church-Service every Sunday twelve pence forfeited 1 Eliz. 2. And for every Holiday twelve pence forfeited 3 Jac. 4. For absence from Common prayer every Month twenty Pounds forfeited 23 Eliz. 1. 3 Jac. 4. For default of payment of twenty Pounds a Month all Goods two parts of Land and Leases forfeited 29 Eliz. 6. 3 Jac. 4. At the Kings Election to take or refuse twenty Pounds a Month or to take two parts of the Recusants Estate 3 Jac. 4. All Copy-hold Lands of Recusants forfeited 25 Eliz. 2. The Forfeitures of the Ancestor charged upon his Heir being a Recusant 1 Jac. 4. A Recusant forfeits for not Receiving the Sacrament according to the Service Book the first year twenty Pounds the second year forty Pounds the third year and every year after sixty Pounds 3 Jac. 4. To the Presenter out of the Recusants Goods forty Shillings forfeited 3 Jac. 4. For every Recusant sojourner and Servant ten Pounds for every Month forfeited 3 Jac. 4. Two parts of Dower or Joynture of a Married Woman forfeited 3 Jac. 5. Coming to Court an hundred Pounds forfeited 3 Jac. 5. For not Baptizing of Children according to the Service-Book publickly within a Month after their Birth an hundred Pound forfeited 3 Jac. 5. For Marrying otherwise than by a Minister an hundred Pounds forfeited 3 Jac. 5. For Burying out of the Church or Church-yard an hundred Pounds forfeited 3 Jac. 5. For sending Children beyond Seas without License an hundred Pounds forfeited 1 Jac. 4. For maintaining a School-master not going to Church or allowed to teach for every Month ten Pounds forfeited 23 Eliz. 1. 29 Eliz. 6. And forty Shillings per
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
betwixt the said Sheriffs and the said Chusers so to be made 5 and every Sheriff of the Realm of England shall have power by the said authority to examine upon the Evangelists every such Chuser how much he may expend by the year 6 and if any Sheriff returned Knights to come to the Parliament contrary to the said Ordinance the Justices of Assizes in their Sessions of Assizes shall have power by the authority aforesaid thereof to enquire 7 and if by inquest the same be found before the Justices and the Sheriff thereof be duly attainted that then the said Sheriff shall incur the pain of an hundred pounds to be paid to our Lord the King and also that he have Imprisonment by a year without being let to mainprise or bail 8 and that the Knights for the Parliament returned contrary to the said Ordinance shall lose their wages Provided always that he which cannot expend forty Shillings by year as afore is said shall in no wise be Chuser of the Knights for the Parliament 2 and that in every Writ that shall hereafter go forth to the Sheriffs to chuse knights for the Parliament mention be made of the said Ordinances Note Though this Statute make the penalty on a Sheriff but 100 l. for a false Return yet the House may further punish him by Imprisonment c. at their pleasure by the Law and Custom of Parliaments We shall now proceed to certain excellent Laws of a latter Date made for the explanation and conservation of our Liberties and in the first place present you with that excellent Petition of Right granted by King Charles the first Anno Regni Caroli Regis Tertio The PETITION exhibited to His Majesty by the Lords Spiritual and Temporal and Commons in this present Parliament assembled concerning diverse Rights and Liberties of the Subjects To the Kings most excellent Majesty HUmbly shew unto our Soveraign Lord the King the Lords Spiritual and Temporal and Commons in Parliament assembled That whereas it is declared and enacted by a Statute made in the time of the Reign of King Edward the first commonly called Statutum de Tallagio non Concedendo that no Tallage or Aid shall be laid or Levyed by the King or his Heirs in this Realm without the good Will and Assent of the Arch-bishops Bishops Earles Barons Knights Burgesses and other the Freemen of the Commonalty of this Realm 2 and by authority of Parliament holden in the five and twentieth year of the Reign of King Edward the third it is declared and Enacted that from thenceforth no person should be Compelled to make any Loans to the King against his Will because such Loans were against Reason and the Franchise of the Land 3 And by other Laws of the Realm it is provided that none should be Charged by any Charges or Imposition called a Benevolence nor by such like Charge 4 By which the Statute before mentioned and othe the good Laws and Statutes of this Realm your Subjects have Inherited this Freedom that they should not be Compelled to Contribute to any Tax Tallage Aid or other like Charge not set by Common Consent in Parliament 2. Yet nevertheless of late divers Commissions directed to sundry Commissioners in several Counties with Instructions have Issued by means whereof your people have been in divers places Assembled and required to lend certain Sums of Money unto your Mejesty and many of them upon their refusal so to do have had an Oath administred unto them not warrantable by the Laws or Statutes of this Realm and have been Constrained to become bound to make Appearance and Attendance before your Privy Council and in other places and others of them have been therefore Imprisoned Confined and sundry other ways molested and disquieted 2 and divers other Charges have been laid and levyed upon your people in several Counties by Lord Lieutenants and Deputy Lieutenants Commissioners for Musters Justices of Peace and others by Command or direction from your Majesty to your Privy Council against the Law and free Customs of this Realm 3. And where also by the Statute called the great Charter of the Liberties of England it is declared and Enacted that no Freeman may be taken or imprisoned or be disseised of his Freehold or Liberties or of his free Customs or be outlawed or Exiled or in any manner destroyed but by the lawfull Judgment of his Peers or by the Law of the Land 4. And in the eight and twentieth year of the Reign of King Edward the third it was declared and Enacted by Authority of Parliament that no man of what Estate or Condition that he be should be put out of his Land or Tenements nor taken nor Imprisoned nor disherited nor put to death without being brought to answer by due process of Law 5. Nevertheless against the tenor of the said Statutes and other the good Laws and Statutes of your Realm to that end provided diverse of your Subjects of late have been Imprisoned without any cause shewed 2 and when for their deliverance they were brought before Justices by your Majesties Writs of Habeas Corpus there to undergo and receive as the Court should order and their keepers commanded to certify the causes of their detainour no cause was certifyed but that they were detained by your Majesties special command signified by the Lords of your privy Council and yet were returned back to several prisons without being charged with any thing to which they might make answer according to the Law 6. Whereas of late great Companies of Souldiers and Mariners have been dispersed into diverse Counties of the Realm and the Inhabitants against their wills have been compelled to receive them into their Houses and there to suffer them to sojourn against the Laws and Customes of this Realm and to the great grievance and vexation of the People 7. And whereas also by authority of Parliament and in the five and twentieth year of the reign of King Edward the third it is declared and enacted that no man shall be forejudged of life and limb against the form of the great Charter and Law of the Land 2 and by the said great Charter and other the Laws and Statutes of this Your Realm no man ought to be Judged to death but by the Laws established in this your Realm either by the Customes of the Realm or by Acts of Parliament 3 And whereas no offendor of what kind soever is exempted from the proceedings to be used and punishments to be Inflicted by the Laws and Statutes of this your Realm nevertheless of late diverse Commissions under Your Majesties great Seal have Issued forth by which certain persons have been Assigned and appointed Commisioners with power and authority to proceed within the Land according to the Justice of Martial Law against such Souldiers and Mariners or other dissolute persons joining with them as should commit any Murder Robbery Felony Mutiny or other Outrage or Misdemeanour whatsoever and by such summary Course
own Bond to pay the Charges of carrying back the Prisoner if he shall be Remanded by the Court or Judge to which he shall be brought according to the true intent of this present Act and that he will not make any Escape by the way make Return of such Writ 3 And bring or cause to be brought the Body of the party so Committed or Restrained unto or before the Lord Chancellor or Lord Keeper of the Great Seal of England for the time being or the Judges or Barons of the said Court from whence the said Writ shall Issue or unto and before such other person or persons before whom the said Writ is made returnable according to the Command thereof 4 And shall then likewise certifie the true Causes of his Detainer or Imprisonment unless the Commitment of the said party be in any place beyond the distance of twenty Miles from the place or places where such Court or Person is or shall be Residing and if beyond the distance of twenty Miles and not above one hundred Miles than within the space of twenty days after such the delivery aforesaid and not longer III. And to the Intent that no Sheriff Goaler or other Officer may pretend ignorance of the import of any such Writ 2 Be it Enacted by the Authority aforesaid That all such Writs shall be marked in this manner Perstatutum Tricesimo primo Caroli Secundi Regis and shall be signed by the person that Awards the same 3 And if any person or persons shall be or stand Committed or Detained as aforesaid for any Crime unless for Felâ—ny or Treason plainly expressed in the Warrant of Commitment in the Vacation time and out of Term it shall and may be lawful to and for the person or persons so Committed or Detained other than persons Convict or in Execution by Legal Process or any one on his or their behalf to Appeal or complain to the Lord Chancellor or Lord Keeper or any one of His Majesties Justices either of the one Bench or of the other or the Barons of the Exchequer of the degree of the Coif 3 And the said Lord Chancellor Lord Keeper Instices or Barons or any of them upon view of the Copy or Copies of the Warrant or Warrants of Commitment and Detainer or otherwise upon Oath made that such Copy or Copies were denied to be given by such person or persons or any on his her or their behalf attested and subscribed by two Witnesses who were present at the delivery of the same to award and grant an Habeas Corpus under the Seal of such Court whereof he shall then be one of the Judges 5 To be directed to the Officer or Officers in whose Custody the party so Committed or Detained shall be returnable immediately before the said Lord Chancellor or Lord Keeper or such Justice Baron or any other Justice or Baron of the Degree of the Coif of any of the said Courts 6 And upon service thereof as aforesaid the Officer or Officers his or their under Officer or under Officers under Keeper or under Keepers or Deputy to whose Custody the party is so Committed or Detained shall within the times respectively before limited bring such Prisoner or Prisoners before the said Lord Chancellor or Lord Keeper or such Justices Barons or one of them before whom the said Writ is made Return able and in case of his absence before any other of them with the Return of such Writ and the true Causes of the Commitment and Detainer 7 And thereupon within two days after the party shall be brought before them the said Lord Chancellor or Lord Keeper or such Justice or Baron before whom the Prisoner shall be brought as aforesaid shall discharge the said Prisoner from his Imprisonment taking his or their Recognizance with one or more surety or sureties in any sum according to their discretion having regard to the Quality of the Prisoner and Nature of the Offence for his or their appearance in the Court of Kings Bench the Term following or at the next Assizes Sessions or General Goal-delivery of and for such County City or Place where the Commitment was or where the Offence was Committed or in such other Court where the said Offence is properly Recognizable as the Case shall require and then shall Certifie the said Writ with the Return thereof and the said Recognizance or Recognizances into the said Court where such appearance is to be made 6 Unless it shall appear unto the said Lord Chancellor or Lord Keeper or Justice or Justices Baron or Barons that the party so Committed is Detained upon a Legal Process Order or Warrant out of some Court that hath Jurisdiction of Criminal matters or by some Warrant Signed and Sealed with the Hand and Seal of any of the said Justices or Barons or some Justice or Justices of the Peace for such matters or offences for the which by the Law the Prisoner is not Bailable IV. Provided always and be it Enacted That if any person shall have wilfully neglected by the space of two whole Terms after his Imprisonment to pray a Habeas Corpus for his Enlargement such person so wilfully neglecting shall not have any Habeas Corpus to be granted in Vacation time in pursuance of this Act. V. Be it further Enacted by the Authority aforesaid That if any Officer or Officers his or their Under-Officer Under-Officers Under-Keeper or Under-Keepers or Deputy shall neglect or Refuse to make the Returns aforesaid or to Bring the Body or Bodies of the Prisoner or Prisoners according to the Command of the said Writ within the Respective times aforesaid or upon demand made by the Prisoner or Person in his Behalf shall Resuse to deliver or within the space of six hours after demand shall not deliver to the Person so demanding a true Copy of the Warrant or Warrants of Commitment and detainer of such Prisoner which he or they are hereby Required to deliver accordingly all and every the Head Gaolers and Keepers of such Prisons and such other Person in whose Custody the Prisoner shall be detained shall for the first Offence forfeit to the Prisoner or Party Grieved the sum of one hundred pounds 2. And for the second Offence the sum of two hundred pounds and shall and is hereby made Incapable to Hold or Execute his said Office 3. the said penalties to be Recovered by the Prisoner or Party grieved his Executors or Administrators against such Offenders his Executors or Administrators by any Action of Debt Suit Bill plaint or Information in any of the King's Courts at Westmin wherein no Essoign Protection priviledge Injunction Wager of Law or stay of Prosecution by Non vult ulterius prosequi or otherwise shall be Admitted or Allowed or any more than one Imparlance 4. And any Recovery or Judgment at the Suit of any Party Grieved shall be a sufficient Conviction for the first Offence and any after Recovery or Judgment at the suit of a Party Grieved for
person or persons that shall frame Contrive Write Seal or Countersign any Warrant or Writing for such Commitment detainer Imprisonment or Transportation or shall be Advising Aiding or Assisting in the same or any of them 5. And the plaintiff in every such Action shall have Judgment to Recover his Treble Costs besides damages which damages so to be Given shall not be less than five hundred pounds 6. in which Action no delay stay or stop of proceeding by Rule order or Command nor no Injunction protection or priviledge whatsoever nor any more than one Imparlance shall be allowed Excepting such Rule of the Court wherein the Action shall depend made in open Court as shall be thought in Justice necessary for special cause to be Expressed in the said Rule 7. And the person or persons who shall Knowingly Frame Contrive write seal or Countersign any Warrant for such Commitment detainer or Transportation or shall so Commit detain Imprison or Transport any person or persons Contrary to this Act or be any waies Advising aiding or Assisting therein being Lawfully Convicted thereof shall be disabled from thenceforth to Bear any Office of Trust or Profit within the said Realm of England Dominion of Wales or Town of Berwick upon Tweed or any of the Islands Territories or Dominions thereunto Belonging 8. And shall Incur and sustain the pains Penalties and Forfeitures Limited ordained and provided in and by the statute of Provision and Premunire made in the sixteenth year of King Richard the Second 9. And be incapaple of any pardon from the King His Heirs or Successours of the said Forfeitures Losses or disabilities or any of them 13. Provided alwaies That nothing in this Act extend to give Benefit to any person who shall by Contract in Writing agree with any Merchant or Owner of any plantation or other person whatsoever to be transported to any parts beyond the Seas and receive Earnest upon such Agreement although that afterwards such person shall Renounce such Contract 14. Provided alwaies and be it Enacted That If any person or persons Lawfully Convicted of any Felony shall in open Court pray to be Transported beyond the seas and the Court shall think fit to leave him or them in prison for that purpose such person or persons may be Transported into any parts beyond the seas This Act or any thing therein Contained to the contrary notwithstanding 15. Provided also and be it Enacted That nothing herein Contained shall be deemed Construed or taken to Extend to the Imprisonment of any person before to first day of June one thousand six hundred seventy and nine or to any thing Advised procured or otherwise done Relating to such Imprisonment Any thing herein Contained to the Contrary notwithstanding 16. Provided also That If any person or persons at any time Resiant in this Realm shall have committed any Capital Offence in Scotl. or Ireland or any of the Islands or Foreign Plantations of the King His Heirs or Successours where he or she ought to be Tryed for such Offence such person or persons may be sent to such place there to Receive such Tryal in such manner as the same might have been used before the making of this Act any thing herein contained to the contrary notwithstanding 17. Provided alwayes and be it Enacted That no person or persons shall be sued Impleaded Molested or Troubled for any Offence against this Act unless the party offending be Sued or Impleaded for the same within two years at the most after such time wherein the Offence shall be Committed in Case the party Grieved shall not be then in Prison and if he shall be in Prison then within the space of two years after the decease of the Person Imprisoned or his or her delivery out of Prison which shall first happen 18. And to the intent no person may Avoyd his Tryal at the Assizes or General Gaol delivery by procuring his Removal before the Assizes at such time as he cannot be brought back to receive his Tryal there 2. Be it Enacted That after the Assizes proclaimed for thatCounty where the Prisoner is detained no person shall be Removed from the common Gaol upon any Habeas Corpus granted in pursuance of this Act but upon any such Habeas Corpus shall be brought before the Judge os Assize in open Court who is thereupon to do what to Justice shall appertain 19. Provided nevertheless That after the Assizes are Ended any person or persons detained may have his or her Habeas Corpus according to the direction and Intention of this Act. 20. And be it also Enacted by the Authority aforesaid That if any Information Suit or Action shall be Brought or Exhibited against any person or persons for anyOffence committed or to be committed against the form of this Law it shall be Lawful for such defendants to plead the General Issue that they are not Guilty or that they own nothing and to give such special matter in Evidence to the Jury that shall Try the same which matter being pleaded had been good sufficent in Law to have discharged the said Defendant or Defendants against the said Information Suit or Action the said matter shall be then as available to him or them to all Intents and purposes as if he or they had sufficiently pleaded set forth or Alledged the same matter in Bar or Discharge of such information Suit or Action 21. And because many times persons charged with petty Treason or Felony or as Accessaries thereunto are Committed upon suspition only whereupon they are Bailable or not according as the Circumstances making out that suspition are more or less weighty which are best known to the Justices of Peace that committed the persons and have the Examinations before them or to other Justices of the Peace in the County 2. Be it therefore Enacted That where any person shall appear to be Committed by any Judge or Justice of the Peace and charged as Accessary before the Fact to any petty Treason or Felony or upon suspicion thereof or with suspicion of petty Treason or Felony which pettyTreason or Felony shall be plainly specially expressed in the Warrant of Commitment that such person shall not be Removed or Bailed by vertue of this Act or in any other manner than they might have been before the making of this Act. The Comment THere are three things which the Law of England which is a Law of Mercy principally Regards and taketh care of viz. Life Liberty and Estate Next to a man's Life the nearest thing that concerns him is freedom of his person For indeed what is Imprisonment but a kind of Civil Death Therefore saith Fortescue Cap. 42. Angliae Jura in omni Casu Libercati dant favorem The Laws of England do in All Cases favour Liberty Touching Commitments and what is Required to make a Legal Mittimus see before Pag. 27. The Writ of Habeas Corpus is a Remedy given by the common Law for such as were unjustly detained
of the Council Bishop Temporal Lord Privy Councillor Judge or Justice whatsoever shall offend or do any thing contrary to the purport true intent and meaning of this Law Then he or they shall for such offence forfeit the sum of five hundred pounds of lawful Money of England unto any party grieved his Executors or Administrators who shall really prosecute for the same and first obtain Judgment thereupon to be Recovered in any Court of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 2. And if any person against whom any such Judgment or Recovery shall be had as aforesaid shall after such Judgment or Recovery offend again in the same then he or they for such offence shall forfeit the Sum of one thousand pounds of lawful Money of England unto any party grieved his Executors or Administrators who shall really prosecute for the same and first obtain Judgment thereupon to be Recovered in any Court of Record at Westminster by Action of Dept Bill Plaint or Information in which no Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 3. And if any person against whom any such second Judgment or Recovery shall be had as aforesaid shall after such Judgment or Recovery offend again in the same kind and shall be thereof duly convicted by Indictment Information or any other lawful way or means that such person so convicted shall be from thenceforth disabled and become by virtue of this Act Incapable ipso facto to Bear his and their said Office and Offices Respectively 4. And shall be likewise disabled to make any Gift Grant Conveyance or other Disposition of any of his Lands Tenements Hereditaments Goods or Chattels or to take any Benefit of any Gift Conveyance or Legacy to his own use 7. And every Person so offending shall likewise forfeit and lose to the party grieved by any thing done contrary to the true intent and meaning of this Law his treble Damages which he shall sustain and be put unto by means or occasion of any such Act or thing done the same to be Recovered in any of His Majesties Courts of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 8. And be it also provided and Enacted That if any person shall hereafter be Committed Restrained of his Liberty or suffer Imprisonment by the Order or Decree of any such Court of Star-Chamber or other Court aforesaid now or at any time hereafter having or pretending to have the same or like Jurisdiction Power or Authority to Commit or Imprison as aforesaid 2. Or by the Command or Warrant of the King's Majesty His Heirs and Successors in their own Person or by the Command or Warrant of the Council-board or oâ— any of the Lords or others of His Majesties Privy Council 3. That in every such Case every person so Committed Restrained of his Liberty or suffering Imprisonment upon demand or motion made by his Council or other Imployed by him for that purpose unto the Judges of the Court of King's-Bench or Common-Pleas in open Court shall without delay upon any pretence whatsoever for the Ordinary Fees usually paid for the same have forthwith granted unto him a Writ of Habeas Corpus to be directed generally unto all and every Sheriffs Gaoler Minister Officer or other person in whose Custody the person Committed or Restrained shall be 4. And the Sheriffs Gaoler Minister Officer or other person in whose Custody the party so Committed or Restrained shall be shall at the Return of the said Writ and according to the command thereof upon due and convenient notice thereof given unto him at the Charge of the party who requireth or procureth such Writ and upon Security by his own Bond given to pay the Charge of carrying back the Prisoner if he shall be Remanded by the Court to which he shall be brought as in like cases hath been used such Charges of bringing up and carrying back the Prisoner to be alwaies Ordered by the Court if any difference shall arise thereabout bring or cause to be brought the Body of the said Party so Committed or Restrained unto and before the Judges or Justices of the said Court from whence the same Writ shall Issue in open Court 5. And shall then likewise certifie the true Cause of such his Detainour or Imprisonment and thereupon the Court within three Court-daies after such Return made and delivered in open Court shall proceed to Examine and Determine whether the Cause of such Commitment appearing upon the said Return be Just and Legal or not and shall thereupon do what to Justice shall appertain either by Delivering Bailing or Remanding the Prisoner 6. And if any thing shall be otherwise wilfully done or omitted to be done by any Judge Justice Officer or other Person aforementioned contrary to the direction and true meaning hereof then such person so offending shall forfeit to the party grieved his treble Damages to be Recovered by such means and in such manner as is formerly in this Act limited and appointed for the like penalty to be Sued for and Recovered 9. Provided alwayes and be it Enacted That this Act and the several Clauses therein contained shall be taken and Expounded to Extend only to the Court of Star-Chamber 2. And to the said Courts holden before the President and Council in the Marches of Wales 3. And before the President and Council in the Northern parts 4. And also to the Court commonly called the Court of the Dutchy of Lancaster holden before the Chancellor and Council of that Court 5. And also in the Court of Exchequer of the County Palatine of Chester held before the Chamberlain and Council of that Court 6. And to all Courts of like Jurisdiction to be hereafter Erected Ordained Constituted or Appointed as aforesaid and to the Warrants and Directions of the Council-board and to the Commitments Restraints and Imprisonments of any person or persons made commanded or awarded by the King's Majesty His Heirs or Successors in their own Person or by the Lords and others of the Privy-Council and every one of them And lastly Provided and be it Enacted That no person or persons shall be Sued Impleaded Molested or Troubled for any Offence against this present Act unless the party supposed to have so Offended shall be sued or Impleaded for the same within two years at the most after such time wherein the said Offence shall be committed The Comment THE Court of Star-Chamber so called because held in a Chamber at Westminster the Roof of which
thereby appears some of them did come to Church and heard divine Service to save the Penalties in the former Acts and yet continued Papists still in their hearts Therefore by this Act they were all to take the Sacrament once a year And if they refused they should forfeit 20 l. the 1st year for the 2d year 40 l. for every year afterwards 60l untill he or she have received the said Sacrament And by the 4th Section the Church Wardens and Constables are to present the monthly absence of all POPISH Recusants but they are not bound by this Act to present any but Papists For from this Act we may observe that none can be Prosecuted upon this Act or any of the other which it refers to which are all those here before rehearsed unless they be POPISH Recusants for so are the express words of the Act. And without doubt should any busy Officer whatsoever Present ot prosecute any person thereupon other than a Popish Recusant the person so presented may Joyn Issue that he is no such person as these Acts intend being not a Papist So that upon the whole matter we may conclude It is an abuse and utterly Illegall to Prosecute Protestants on such Laws as were made solely and wholly against Papists as will further appear in our next Observation and we have heard some Judges have declared so much However I shall here add the Judgment of the House of Commons in the Case for tho I know and own a vote of either or both Houses cannot Repeal a Law nor alter its sense yet certainly the House consisting of so many wise discreet persons a great number of them Excellently Learned in the Laws they are as like to Interpret a doubtful Law and hit upon the true Interpretation how far and to what it does extend as two or three little swaggering Justices or any single Judge At least were I an Officer I should rather incline to credit their opinion not run an hazard by employing the Toils made for restraining the Wolves and the Foxes to intangle destroy the Innocent sheep meerly because they do not all exactly tread in the very same steps and bite punctually all of one Sort of Grass Sabbati Sexto die Nov. 1680. Resolved Nemine contradicente That it is the opinion of this House That the Acts of Parliament made in the Reigns of Queen Elizabeth and King James against Popish Recusants ought not to be extended against Protestant dissenters And now having discharged these unlawful weapons let 's see what Legal Arms there are or have been really formed against the Sectaries And the first was the very sword of Goliah there was none like it 1. I mean the Act of 35 Eliz. Ca. 1. which some would make us believe has had as many Lives as a Cat intituled An Act to Retain the Queen's Majesties Subjects in their due Obedience This was the first Law that was made since the Reformation against those we commonly called Sectaries Conventiclers or Protestant Dissenters and this Act indeed beyond all dispute was made against them and them only for the Popish Recusants are expresly Excepted out of it as appears by the Act And that the Reader may better judge of the true difference between this Act and those others before recited made against Popish Recusants by the style and expressions I shall here insert the first Paragraph and give you the substance of the rest of it For the preventing and avoiding of such great Inconveniencies and Perils as might happen and grow by the wicked and dangerous practices of seditious Sectaries and disloyal Persons Be it Enacted by the Queen 's most Excellent Majesty and by the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same That if any person or persons above the Age of sixteen years which shall obstinately Refuse to Repair to some Church Chappel or usual place of Common-Prayer to hear Divine Service Established by Her Majesties Laws and Statutes in that behalf made and shall forbear to do the same by the space of one month next after without any lawful cause shall at any time after forty daies next after the End of this Session of Parliament by Printing Writing or Express Words or Speeches advisedly or purposely practise or go about to make or persuade any of Her Majesties Subjects or any other within her Highness's Realms or Dominions to deny withstand and impugn Her Majesties Power and Authority in cases Ecclesiastical United and Annexed to the Imperial Crown of this Realm or to that end or purpose shall advisedly or maliciously move or persuade any other person whatsoever to forbear or abstain from coming to Church to hear Divine Service or to Receive the Communion according to Her Majesties Laws and Statutes aforesaid or to come to or be present at any unlawful Assemblies Conventicles or Meetings under colour or pretence of any Exercise of Religion contrary to Her Majesties Laws and Statutes or if any person or persons which shall obstinately Refuse to Repair to some Church by the space of one month to hear Divine Service as is aforesaid shall after the said forty daies either of him or themselves or by the Motion Persuasion Inticement or Allurement of any other willingly Joyn in or be present at any such Assemblies Conventicles or Meeting under colour or pretence of any such Exercise of Religion contrary to the Laws and Statutes of this Realm as is aforesaid That then every such person so offending as aforesaid and being thereof lawfully convicted shall be Committed to Prison and there to Remain without Bail or Mainprise until they shall Conform and yield themselves to come to some Church Chapel or usual place of Common-Prayer and hear Divine Service c. Then the Act goes on and provides That if the person do not Conform within three months after Conviction he should Abjure that is be Banisht and swear never to come back without leave And if he will not swear so then the same to be Felony without Benefit of Clergy From which Act these 3 things are observable 1. That the same was wholly intended against the Puritanes or Sectaries for the Papists are expresly exempted by a particular clause Sect. 12. in these words ' Provided that No Popish Recusant or Feme Covert shall be compelled or bound to abjure by vertue of this Act. 2. That Q. Eliz. and her wise Parliament did not intend or take such Protestant Recusants to be within the meaning of or punishable by the other before mentioned Statutes against popish Recusants For if they had so understood they might have punished them sufficiently on those old Laws without giving themselves the trouble of making this new Law against them Frustra fit per plura quod fieri potest per pauciora God and the Law do nothing in vain 3. If it be objected That all those Laws as well as this ought to be construed to one
what they Swear or if we do not find as the Judge directs we may come into trouble the Judge may Fine us c. I Answer this is a vain fear No Judge dare offer any such thing you are the proper Judges of the matters before you and your Souls are at stake you ought to Act freely and are not bound though the Court demand it to give the Reasons why you bring it in thus or thus for you of the Grand-Jury are sworn to the Contrary viz. To keep secret your fellows Counsel and your own and you of the Petty Jury are no way obliged to declare your motives it may not be convenient T is a notable Case before the Chief Justice Anderson in Q. Eliz. daves A Man was Arraigned for murder the Evidence was so strong that 11. of the Jury were presently for finding him Guilty the 12th man refused and kept them so long that they were ready to starve and at last made them comply with him and bring in the Prisoner not Guilty The Judge who had several times admonisht this Jury-man to join with his Fellows being surprized sent for him discoursed him privately to whom upon promise of Indempnity he at last own'd that he himself was the man that did the Murder and the Prisoner was Innocent and that he was resolv'd not to adde Perjury and a second Murder to the first But to satisfie you that a Jury is no way punishable for going according to their Conscience though against seeming Evidence and the Reasons why they are and ought not to be question'd for the same I shall here Recite an Adjudged Case that of Bushel in the two and twentieth year of His Majesty Reported by the Learned Sir John Vaughan whose Book is Licensed by the present Lord Chancellor the Lord Chief Justice North and all the Judges then in England the said Case begins fol. 135. and continues 150. The whole well worth Reading but I shall only Select Certain Passages The Case was this BUshel and others of a Jury having at a Sessions not found Pen and Mead Two Quakers Guilty of a Trespass Contempt Vnlawful Assembly and Tumult whereof they had been Indicted were fined forty pound a man and Committed till they should pay it Bushel brings his Habeas Corpus and upon the Return it appeared he was Committed For that contrary to Law and against full and Clear Evidence openly given in Court and against the Directions of the Court in matter of Law they had Acquitted the said W. P. and W. M. to the great Obstruction of Justice c. Which upon solemn Argument was by the Judges Resolved to be an Insufficient Cause of fining and committing them and they were discharged and afterwards brought Actions for their Dammage The Reasons of which Judgment are reported by Judge Vaughan and amongst them he Useth these that follow which I shall give you in his own words Fol. 140. One fault in the Return is That the Jurors are not said to have Acquitted the persons Indicted against full and manifest Evidence Corruptly and Knowing the said Evidence to be full and manifest against the Persons Indicted For how manifest soever the Evidence was if it were not manifest to them and that they Believed it such it was not a Finable fault nor Deserving Imprisonment Vpon which Difference the Law of punishing Jurors for false Verdicts principally Depends And Fol. 141. I would know whether any thing be more Common than for two men Students Barristers or Judges to deduce Contrary and opposite Conclusions out of the same Case in Law And is there any Difference that two men should Infer distinct Conclusions from the same Testimony is any thing more known than that the same Author and place in that Author is forceably urg'd to maintain contrary Conclusions and the Decision hard which is in the Right is any thing more frequent in the controversies of Religion than to press the same Texts for Opposite Tenets How then comes it to pass that two persons may not apprehend with Reason and Honesty what a Witness or many say to prove in the Vnderstanding of one plainly one thing but in the Apprehension of the other clearly the contrary thing must therefore one of these Merit Fine and Imprisonment because he doth that which he cannot otherwise do preserving his Oath and Integrity And this is often the Case of the Judge and the Jury And Fol. 142. I conclude therefore That this Return charging the Prisoners to have Acquitted P. and M. against full and manifest Evidence first and next without saying that they did know and Believe that Evidence to be full and Manifest against the Indicted persons is no Cause of Fine and Imprisonment In the Margent of that Fol. 142. it is thus Noted Of this Mind were ten Judges of Eleven the Chief Baron Turner gave no Opinion because not at the Argument And in the same fol. 142. he saith The Verdict of a Jury and Evidence of a Witness are very Different things in the Truth and Falshood of them a Witness swears but to what he hath heard or seen generally or more largely to what hath fallen under his Senses But a Jury-man swears to what he can Inferr and conclude from the Testimony of such Witnesses by the Act and force of his Understanding to be the Fact Inquired after which differs nothing in Reason though much in the Punishment from what a Judge out of Various Cases consider'd by him Infers to be the Law in the question before him If the meaning of these Words finding against the Direction of the Court in matter of Law be That if the Judge having heard the Evidence given in Court for he knows no other shall tell the Jury upon this Evidence the Law is for the Plaintiff or for the Defendant and you are under the pain of Fine and Imprisonment to find accordingly and the Jury ought of duty so to do then every man sees that the Jury is but a troublesome delay great Charge and no use in determining Right and Wrong and therefore the Tryals by them may be better Abolished than continued which were a strange new found Conclusion after a Tryal so Celebrated for many hundred Years It is true if the Jury were to have no other Evidence for the Fact but what is Deposed in Court the Judge might know their Evidence and the Fact from it equally as they and so direct what the Law were in the Case though even then the Judge and Jury might honestly differ in the Result from the Evidence as well as two Judges may which often happens but the Evidence which the Jury have of the Fact is much otherwise than that For 1. Being Returned of the Vicinage where the Cause of Action ariseth the Law supposeth them thence to have sufficient Knowledge to Try the matter in Issue and so they must though no Evidence were given on either side in Court but to this Evidence the Judge is a stranger 2. They may have Evidence from their own Personal Knowledge by which they may be assured and sometimes are that what is deposed in Court is absolutely false but to this the Judge is a stranger and he knows no more of the Fact than he hath Learned in Court and perhaps by false Depositions and consequently knows nothing 3. The Jury may know the Witnesses to be Stigmatized and Infamous which may be unknown to the parties and consequently to the Court. Fol. 148. To what end is the Jury to be Returned out of the Vicinage where the Cause of Action ariseth to what end must Hundredors be of the Jury whom the Law supposeth to have nearer knowledge of the Fact than those of the Vicinage in General to what end are they Challenged so scrupulously to the Array and Poll to what end must they have such a certain Free-hold and be Probi Legales homines and not of Affinity with the party concern'd to what end must they have in many Cases the View for Exacter Information chiefly to what end must they undergo the Punishment of the Villanous Judgment if after all this they Implicitly must give a Verdict by the Dictates and Authority of another Man under Pains of Fines and Imprisonment when Sworn to do it according to the best of their own Knowledge A man cannot see by anothers Eye nor hear by anothers Ear no more can a man conclude or Infer the thing to be Resolved by anothers Vnderstanding or Reasoning and though the Verdict be right the Jury give yet they being not assured that it is so from their own Vnderstanding are Forsworn at least in foro Conscientiae Fol. 149. And it is Absurd to Fine a Jury for finding against their Evidence when the Judge knows but part of it for the better and greater part of the Evidence may be wholly unknown to him and this may happen in most Cases and often doth Thus far Judge Vaughan whose words I have faithfully Recited and with it shall conclude this Subject Recommending those that would be further satisfied in the Law touching the Power and Duty of Juries to those two Excellent Learned Treatises lately published the one Intituled A Guide to English Juries c. to be Sold by Mr. Cockeril at the Three Legs over against the Stocks-Market the other The Security of English-mens Lives or the Trust Power and Duty of the Grand Juries of England Printed for Benj. Alsop in the Poultrey both which are extreamly well worthy of every English mans Perusal that is liable to be call'd to that Office And now I shall take Leave of the Reader who I hope will join with me and all English Protestants in this Prayer THat Almighty God would preserve our Religion put a stop to the Growth of Popery Confound all their Plots Protect our present Gracious King Defend us both from a Forreign Yoak and Domestick Slavery but continue to us the Enjoyment of our good old Laws Liberties and Priviledges and bring all those to exemplary Justice that have or shall dare attempt to Subvert Diminish or Vndermine them Amen FINIS 1 See Book of Oaths p. 1. 3. 2 Bakers Cron. sol 741. 3 Book of Oaths p. 216. ☞