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
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
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
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
in good Sureties as Esquires or Gentlemen And that no pardon were granted but by Parliament Thirdly For that the King hath granted Pardons of Felonies upon false Suggestions it is provided that every Charter of Felony which shall be granted at the Suggestion of any the name of him that maketh the Suggestion shall be comprised in the Charter and if the Suggestion be found untrue the Charter shall be disallowed And the like provision is made by the Statute of 5. H. 4. Cap 2. for the Pardon of an Approver Fourthly It is provided that no Charter of Pardon for Murder Treason or Rape shall be allowed c. If they be not specified in the same Charter Statute 13. R 2. Before this Statute of 13. R 2. by the Pardon of all Felonies Treason was Pardoned and so was Murder c. At this day by the Pardon of all Felonies the death of man is not Pardoned These be excellent Laws for direction and for the Peace of the Realm But it hath been conceived which we will not question that the King may dispence with these Laws by a Non Obstante notwithstanding be it General or Special albeit we find not any such Clauses of non Obstante notwithstanding to dispense with any of these Statutes but of late times These Statutes are excellent Instructions for a Religious and Prudent King to follow for in these Cases Vt summae potestatis Regiae est posse quantum velit sic Magnitudinis est velle quantum possit As it is the highest Kingly power to be able to Act what he Wills so it is his Greatness and Nobleness to Will only what he lawfully can Hereof you may Read more in Justice Standford Lib. 2. Cap. 35. in diverse places of that Chapter of his grave Advice in that behalf Most certain it is that the Word of God has set down this undisputable General Rule Quia non profetur Cito Contra malos sententia filii hominum sine timore ullo perpetrant because Sentence against evil men is not speedily Executed therefore the hearts of the Children of men are set in them to do evil And thereupon the Rule of Law is grounded Spes Impunitatis Continuum Affectum tribuit delinquendi the hope of Impunity encourageth Offenders Et veniae facilitas Incentivum est Delinquendi and the facility of obtaining Pardon is an Incentive to Commit Offences This is to be Added that the Intention of the said Act of 13. R. 2. Was not that the King should grant a Pardon of Murder by express Name in the Charter but because the whole Parliament conceived that he would neuer Pardon Murder by special Name for the Causes aforesaid therefore that provision made which was as in other Cases I have observed grounded upon the Law of God Quicunque effuderit humanum sanguinem fundetur sanguis illius ad imaginem quippe Dei creatus est homo nec aliter Expiati potest nisi per ejus sanguinem qui alterius sanguinem effuderit whosoever shall shed mans blood by man also shall his blood be shed because man was Created after the Image of God neither can it be expiated otherwise then by his blood who spilt the blood of another And the words of every Pardon is after the Recital of the offence nos pietate moti c. we being moved with Piety c. But it can be no Piety to violate an express Law of God by letting Murder scape unpunisht Thus Coke whereby we see what opinion he had of such Pardons A brief digression concerning the Nature of APPEALS THis Discourse of Pardons puts us in mind of another kind of Legal Prosecution called an Appeal of which it may be very convenient to give the Reader some brief account You must know then for several Offences for which a man deserveth death and particularly for Murder there are two ways to bring him to Answer for the same one by Indictment which is at the Kings Suit and the other by Appeal which is at the Suit of a Party which is wronged or injured by the Murder as a Woman whose Husband or a Child or Brother whose Father or Brother is Killed Now upon an Indictment if the Offender be found Guilty because it s to be at the Suit of the King it has been said by some may be and too often a Pardon has been obtained tho even That too be against Law as appears by the Premisses But in an Appeal all agree the King can grant no Pardon Nay if a person be tryed by Indictment and Acquitted or Convicted and get a Pardon yet an Appeal may be brought and if he be thereupon Convicted notwithstanding such his former Acquital or Pardon he must be Hanged The word Appeal is derived from the French Verb Appeller to Call because he or she that brings it Calls the Defendant to Judgment but the meaning thereof is all one with An Accusation And is peculiarly in Legal signification applyed to Appeals of Three sorts First an Appeal brought by an Heir Male for some wrong done to his Ancestor whose Heir he is Secondly Of wrong done to an Husband and is by the Wife only if it be for the death of her Husband to be Prosecuted The third is of wrongs done to the Appellants themselvess as for Robbery Rape or Maim Coke 1. Instit Sect. 500. Note that this Appeal must be brought within a year and a day after the Murder is committed For afterwards it cannot be brought at all And antiently it was customary not to bring an Indictment for the King till after the year and the day waiting in the mean time for the Prosecution of the Party but this was found very inconvenient for the Party was frequently compounded with and at the years end the business was forgot and so Offenders escaped Justice And therefore the same was altered by the Statute 3. Hen. 7. Cap. 1. Whereby it is Enacted That the Coroner shall do his Office and the Offenders may be Arraigned at any time within the year at the Kings Suit but if Acquitted yet the party within the year and day should have liberty to bring an Appeal against such person either Acquitted or Attainted if the benefit of the Clergy be not before thereof had And in order thereunto that when any person happened to be Acquitted for the death of a man within the year the Justices before whom he is Acquitted shall not suffer him to go at large but either to remit him again to the Prison or else to let him to Bail after their discretion till that the day and the year be passed that so he may be forth coming to Answer an Appeal if it shall happen to be brought Thus that Statute as to the latter Clause whereof you see the Judges have power in Case of Acquittal to keep the Party in Prison still till the day and year be over Or else to admit him to Bail and tho this be left to their Discretion yet it must
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
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