chief Court could command Bishops to give their clergy to such as ought to have it another cause was That the life of a man ought to be tryed before Judges of learning and experience of the Laws of the Realm for Ignorantia Judicis est saepenumerò calamitas innocentis These are the reasons that the Lord Coke alledgeth why some Pleas of the Crown were taken from Sheriffs Castellans Escheators Coronors and Bailiffs under which names saith he are comprehended all inferiour Judges Justices and Courts of Justice albeit saith he it be provided by the 9th chap. of Mag. Charta That the Barons of the five Ports should have all their Liberties and Customs These general words saith he again must be understood of such Libertiâ—s and Customs as are not afterwards in the same Charter by express words taken away and assumed to the Crown Might not the Kings inferior Courts command ordinary Ministers to give men their Clergie Expost and Quer. And might not that serve before Magna Charta as it is usual since For seldom or never in our memories did Bishops themselves attend any court for that service and now should they be necessary onely for that imployment So the Kings Court would be onely to command them but if Bishops may be spared why may not that Court for that cause And if by this Charter the King resumed some Pleas of the crown from those that formerly had them dorâ—â— et follow that he resumed all Pleâ—â— from those that formerly had them And if under the name of Bailiffs be comprehended all Judges and Justices are not the Judges of the Common-Pleas and Barons of the Exchecquer so comprehended And are none of them of such learning and experience in the Laws of the Realm to try the life of a man as Judges of the Kings-Bench Or else why are they sent for Goal-deliveries aswel as Judges of the Kings-Bench are Was it not provided by the 9. chapter of Mag. Charta That London and other Cities Burroughs and Towns as well as the Barons of the five Ports and other Ports should have their Liberties and Free-Customs Are all these now resumed by this 17. chap Who can understand so Or what meaneth the L. C. by his riddles Shall Magna Charta contradict it self though the Lord C. would and doth here and elsewhere Are not Commissions of Oyer and Terminer usual for Tryal of mens lives where Judges of the Kings-Bench cannot reach or dare not go Doth not London and other Corporations execute their Charters by their Recorders when the Kings-Bench gives them leave and then do not the Judges of the Kings-Bench grant that such Judges may be as learned and experienced in the Laws as themselves for the Trying of mens lives Are not mens lives Tryable for matter of Fact and not of Law except Treasons that reach to thoughts Are not Jurors the Judges of matters of Fact What great learning or experience in Law is requisite for a Judge to pronounce the sentence of death where the verdict hath determined the life But how many true men have been hanged and thieves saved by Judges interposing and obtruding their pestifferous pretended learning and experience in the Laws between the weak consciences of ignorant Jurors and the truth which kind of Jurors they make Sheriffs return for such purposes when they may have such returned as know the Facts and have sounder learning and experience in express Law than themselves All Wears from henceforth be utterly put down by Thames C. 23. Wearâ— c. and Medway and throughout all England but onely by the Sea-coasts It was specially given in charge by the Justices in Eyre saith the Lord C. that all Juries should inquire of all such as Fished with wears and Dams L. C. upon M. C. fol. 38. and it appeareth saith he by Glandvil lib. 9. c. 11. That when any thing is unjustly occupied within the Kings demesne or obstructed in publick waies or Rivers turned off their right channels or Citie-streets built upon and in general as often as any nusance to the Kings holding or his High-way or to any Citie is committed That is a purpresture viz. an Inclosure whereby one in chroacheth or maketh that several to himself which ought to be common to all or many and every publick River or stream the Kings High way If Wears be nusances as I am sure they are throughout England Expost and Quer. and Wales and if Commissioners for Sewers and Justices of Peace for want of them be sufficiently authorized to reform such wrongs and do not because chief doers thereof or sharers in the unlawful gain made thereof themselves why not Justices in Eyer imployed to execute their charge for the general amendment thereof for the publick good One Measure of Wine shall be throughout our Realm C. 29. Measures c. and one measure of Corn viz. according to the Quarter of London and Haberjects that is to say two yards within the list and as it is of Weights so shall it be of Measures This Act concerning Measures L. Cokâ— upon M. C. fol. 49. and Weights that there should be one Measure and one Weight through England is grounded upon the Law of God Deut. 25. v. 13 14. And this by Authority of Parliaments hath been often enacted but never effected If Weights and Measures throughout England ought to be one Expost and Quer. and that not onely by the Law of God as the Lord C. instanceth but also by this Charter of Agreement between the King and the People Why did not the Lord C. being chief Justice of England sworn to do Law and Justice too and between King and People as partly before did and hereafter further shall appear he was or ought to have been see this point of Justice so highly required by the Law of God and so mutually agreed upon by the Kings of this Land and their Subjects duly executed Nothing shall henceforth be given for a Writ of Inquisition Ca. 16. Inquisition nor taken of him that prayeth the Inquisition of Life or Member but it shall be granted freely A Writ of Inquisition L. C. upon M. C. fol. 42. viz. De odio atia anciently called De bono malo c. which the Common-Law gave a man that was imprisoned though it were for the most odious cause for the death of a man for which without the Kings Writ he could not be bailed Yet the Law favouring the Libertie and Freedom of a man from Imprisonment c. until the Justices in Eyre should come at what time he was to be tryed he might sue out this VVrit directed to the Sheriff c. If a Writ De odio atia was given by the Common-Law Expost and Quer. to a man Imprisoned for the most odious cause even for the death of a man and if the Common-Law favoured the Liberty of a man Imprisoned so that he should be Bailed for such a Fact until
JUDGES JUDGED out of their own mouthes OR The QUESTION Resolved by MAGNA CHARTA c. Who have been Englands Enemies Kings Seducers and Peoples Destroyers from Hen. 3. to Hen. 8. and before and since Stated by Sr. EDVVARD COKE Kn ◠late L. Chief Justice of England Expostulated and put to the Vote of the People by J. JONES Gent. Whereunto is added Eight Observable Points of Law Executable by Justices of Peace Abusum ego non usum forensem damne Ex legibus illis quae non in tempus aliquod sea perpetuâ utilitatis causâ in aeternum latae sunt null abrogari debet nisi quam aut u sus ceärguit aut status aliquis Reipublica inutilem fecit Tit. Liv. lib. 4. dec 4. LONDON Printed by W. Bently and are to be sold by E. Dod and N. Ekins at the Gun in Ivy-Lane MDCL To the Right HONOURABLE HONOURABLE Right WORSHIPFULL And Well-beloved the COMMONS and PEOPLE of England Universally BEcause Magna Char. Printed in English An. 1564. and bound up with other Statutes at large too Voluminous and costly for the generality to read or buy doth yield less profit than hath been long necessary I have presumed at the instance of some to Dedicate this Treatise to you all as it concerneth the good of all that be or would be good the hurt of none that have left any unhurt wherein you shall find so many Chap. of Mag. Char. Confir Char. Art super Char. and other Statutes at large corroborating the same and the L. C. Exposition thereupon with some Expostulations and Queres of mine own as I thought requisite or convenient for these times The rest of the Charter concerning the Church yet unsetled or the Kings Tenures otherways disposed of I have omitted as useless desiring that thus much may prove useful to all undertakers of Reformation as well Martial as Civil Whose Servant to my power I shall ever be and continue with due faithfulness and humility Jo. Jones The Great CHARTER of the LIBERTIES of ENGLAND Granted to the People of the same By King HENRY the third And accorded between him and them in diverse full Parliaments as followeth viz. HENRY by the Grace of God King of England Lord of Ireland Duke of Normandie and Guyen and Earl of Angeow To all Arch-Bishops Bishops Abbots Priors Earls Barons Sheriffs Provosts Officers And to all Bailiffs and our faithfull Subjects which shall see this present Charter greeting Know ye that We to the honour of Almightie God and for the salvation of the souls of our Progenitours and Successours Kings of England to the advancement of holy church and amendment of our Realm of England of Our meer free will have given and granted to all Arch-Bishops Bishops Abbots Priors Earls Barons and to all Free-men of this Realm of England for evermore First We have granted to God and by this present Charter have confirmed for Vs Cap. 1. Liberties and our Heirs for evermore That the church of England shall be free and shall have all her whole rights and liberties inviolable We have granted also and given to all Free-men of our Realm for Vs and Our Heirs for evermore these Liberties under-written to have and to hold to them and to their heirs of Vs and Our heirs for evermore Here be four rehearsals saith the Lord Coke of four notable causes of the making this Law Lord Coke upon Mag. Chart. Fol. 1. First for the honour of God Secondly for the health of the Kings soul Thirdly For the exaltation of the church Fourthly for the amendment of the Kingdom And all granted to all subjects and their heirs from the King and his heirs for evermore That the great Charter might live and take effect in all successions of ages for ever Expost and Quer. The last of these causes which the L. C. in his Preamble calleth the ends for which this Charter was made being for the amendment of the Realm was saith the L. C. upon the first chapter of confirmatio Chart. fol. 529. to amend great mischiefs and inconveniences which oppressed the whole Realm before the making of both Charters viz. This and the Charter of the Forrest which saith the L. C. in his Preface were declarative Acts of the old Common-Law of the Land and no introductives of any new Law If the mischiefs and inconveniencies of the Realm were great before the said Acts were made to declare the Laws of the land which formerly the lawyers reserved to themselves till then undeclared Were there not greater since those Acts were made and the Lawes thereby declared and since the accord of King and People to keep the same inviolable when and as often as they were violated by Kings and their Counsel learned in the Laws As hereafter shall appear We Cap. 8. Debt Debtors Suerties nor Our Bailiffs shall not seise any lands or rent for any debt as long as the present goods and chattels of the debtors do suffice to pay the debt and the debtor himself be ready to satisfie Therefore shall neither the pledges of the debtor be distrained as long as the principle debtor is sufficient for payment of the debt and if the principal debtor fail in paiment of the debt haveing nought wherewith to pay or will not where he is able enough Then the pledges shall answer for the debt and if they will they shall have the lands and rents of the debtor until they be satisfied of that which they before paid for him except that the debtor can shew himself to be acquitted against the suerties We saith the Lord Coke spoken in the politique capacitie of a King L. Coke upon M. C. fol. 19. extendeth to his Successours And by Bailiffs are meant Sheriffs who write Baliva mea c. And by the words shall not seiz is expressed the Kings Grace who by the Common-Law had Execution against his Debtors bodies lands and goods And by the Statute of 33. Hen. 8. cap. 9. The Sheriff is to inquire c. and to extend all Lands Goods Chattels c. and 〈◊〉 take and imprison the Bodies as by that Stat. appeareth and as the daily practice sheweth Expost and Quer. If We extend to Successors even to King Hen. 8. Why not longer If Magna Charta was to live for ever Why not hitherto If the King of his Grace remitted by this Act the execution which the Common Law gave him before against his Debtors Bodies Lands and Goods in case of having nought wherewith to pay through decay of their estates by unavoidable necessities then the Kings Debtors obtained of the Kings Grace as much Liberty for their bodies as this King gave to all his free subjects by the 29th of this Act viz. No Free man c. And for his Estate as much as the proverb saith Where nothing is to be bad the King looseth his due If the King did not remit so much by this Act then did he gain thereby more
Eyre still And why not Writs Gratis sent to the Sheriff of every Countie to enquire of offences and offendors against the great Charter And doth not this Statute prove that Sheriffs ought to have such Writs and to make such enquiries And that the King referred himself as well as others to the judgements as well of Justices in Eyre as of the Justices of the Bench and that he would have his Writs granted as well against him as others and that Gratis doth it not futther prove that Kings accounted the Justices in Eyre his Justices and their Court his Court as well as the Kings-Bench how therefore doth the Lord Coke hereafter call them new Justices and their Court new Court But more of that in its place Now having done with so much of Mag. Charta as I promised and with the 5 Chapter of the Statute of Marlebridge and the 8 of the Statute of Glocester Here ensueth the Confirmation of the great Charter made at London 10 Octob. Anno 25. Ed. 1. three years before that which is Printed before it because that containeth all the Charter in 38. chapters at large and this but 7. In the First of which it confirmeth both Charters and every Article thereof both made 9º H. 3. in general words as followeth viz. Edward by the grace of God Cap. 1. Charters King of England Lord of Ireland and Duke of Guyen To all those that these present Letters shall hear or see Greeting Know ye that We to the Honour of God and of Holy Church and to the profit of Our Realm have granted for Vs and Our Heirs That the Charter of Liberties and the Charter of Forrests which were made by the Commonalty of the Realm in the time of King Henry Our Father shall be kept in every point without breach And We will that the same Charter shall be sent under Our Seal aswel to Our Justices of the Forrest as to others And to all Sheriffs of Shiers and to all Our other Officers and to all Our Cities throughout the Realm together with Our Whits in the which shall be contained that they cause the foresaid Charters to be published And to Declare to the People that We have confirmed them in all points And that Our Iustices Sheriffs Maiors and other Ministers which under Vs have the Laws of Our Land to guid shall allow the same Charters pleaded before them in Iudgement in all their points That is to wit The Great Charter as the Common Law And the Charter of the Forrest for the Wealth of Our Realm The Title of this Statute saith the Lord Coke is Confirmationes Chartarum de Libertatibus Angliae Forrestae L. C. upon Cons C. f. 526. viz. The Confirmations of the Charters of the Liberties of England and of the Forrest And true it is saith he that hereby the said Charters are expresly confirmed but they are also excellently interpreted which is a Confirmation in Law for here is nothing Enacted but is included within Magna Charta And by the Commonalty saith he is to be understood by the consent of all the Realm by Authority of Parliament and many times by the Commonalty of England is signified an Act of Parliament c. before Printing and before the Reign of King Hen. the 7th Statutes were Ingrossed in Parchment and by the Kings Writ Proclaimed by the Sheriff of every Countie this was the ancient Law of England that the Kings Commandments issued and were published in form of Writs as then it was An excellent course and worthie to be restored c. This Clause saith he is worthie to be written in letters of gold viz. That our Justices Sheriffs Majors and other Ministers which under us have the Laws of the Land to guid them shall allow the said Charters in all points which shall come before them in Judgement And here it is to be observed That the Laws are the Judges Guides or Leaders according to that old Rule Lex est Exercitus Judicum viz. The Law is the Judges Armie Tutissimus Doctor viz. The safest Teacher or Lex est optimus Iudicis Synagogus viz. Their best Synagoug And Lex est tutissimus cassis viz. Their safest Fortress There is an old legal word saith he called Guidagium viz. Guidage which signifieth an Office of guiding Travelors through dangerous and unknown ways Here it appeareth that the Laws of the Realm hath this Office to guid the Iudges in all causes that come before them in the ways of right Justice who never yet misguided any man that certainlie knew them and truly followed them The sence of the words That the great Charter is to be holden for the Common Law is that it is a Common Law to all in amendment of the Realm that is of great mischiefs and inconveniencies which oppressed the whole Realm before the making thereof Expost and Quer. Doth nor the Lord Coke by all this his expression commend this Statute very highly Why did he not in his duty cause it to be observed in his time And had not Iustices of the Forrest and other Iustices Sheriffs Majors and other Ministers of his time had they received the Great Charter with the Kings Writs power thereby as well as he to cause the said Charter to be published to the People and that the King had confirmed it in all points Why did he by neglecting his duty to send the said Charter and Writs unto them accordingly make them fail of their duties Doth not the Lord Coke confess by this clause Worthie as he saith to be written in letters of gold That Sheriffs Majors and other Ministers as well as Justices and other Justices as well as those at Westminster have or ought to have the Law of England to be their guid and ought to allow Magna Charta in all points which in any Plea shall be before them Why then do the Iustices at Westminster by their Habeas corpus and other Writs as aforesaid disturb and prevent all Sheriffs Majors c. to exercise their Offices before Judgment or after without proof of Injustice or manifest Errors committed by them in their Iudgements Why do not the Iustices at Wistminster when they have Persons and Causes brought before them by virtue of their Writs allow Mag. Car. to be Pleaded before themselves since they will suffer no others to hear it How can it be true when they do not that the Law is their guid Do not they assume the sole Guiding Learning Interpreting Exercising and Over ruling of the Law to themselves when they suffer no other Iustices or Ministers of the King but themselves to have any Judgement therein as aforesaid Why do they bely the Law so much as to call it their Guid their Teacher their Army their Synagogue their Fortress when it is manifest That their Attorneys their Sollicitors their Catch-polls and their Goalers are their Guids Teachers Supernumerous Armies and Invincible Fortresses as they trust but may be deceived
all whose ways are to Injustice as aforesaid How can that Law be called Common to all which They and these their Creatures Monopolize Ingross and Appropriate all to themselves as aforesaid And We will C. 2. Judgements That if any Indgement be given from henceforth contrary to the points of the Charters aforesaid by the Iustices or by any other Our Ministers that hold Plea before them against the points of the Charters it shall be undone and holden for nought Whatsoever Judgement is given against this Statute of Magna Charta L. Coke upon Con. C. f. 527. c. is made void by this Act and may be reversed by a Writ of Error because the Judgement is given against the Law for this Act saith Soir de fair pur nienttenus viz. as the Stat. Englisheth it self It shall be undone and holden for nought Expost and Quer. If so Why should not all Iudgements appearing as aforesaid to be contrary to Mag. Charta which are given for Arrests and Imprisonment of mens Bodies for Debt be undone and held for nought Why did Mr. Garland lately trouble the most High Court of Parliament whereof by so doing he shewed himself an unworthy Member with a ridiculous useless Act of his drawing for the Enlarging poor Prisoners for Debt Why did not he if he did ever read this place of the Lord 〈◊〉 mind the Parliament to command the Judges who seem if they have read it to have forgot it to reverse their Erroneous judgements against Debtors so far as they extend to their Imprisonment and to send their Liberate to all their Goalers to set open all their Goal dores and let forth so many of the Prisoners for Debt as they have left alive The poor because they have no Estate whereof to pay the rich because they have Estates sufficient for all or part against which Estates so much of their judgements may stand as concerneth that and not their Bodies and Executions may be taken thereupon by Elegit or Fieri facias according to the Statute of Westminster the 2. cap. 18th agreeable to Magna Charta and the Parliament not to be troubled except to Impower the Iudges by an Order to rectifie their judgements according to that Law which is in force and so forgo their Errors and Repealed Statute of the 25th of Ed. 3d c. 17th which ought to be no Guid Leader or Teacher to learned and grave Judges that can never be misguided by the right law if as the Lord C. saith they certainly know it and be pleased truly to follow it And by this course as well the Creditors of the rich Debtors as the poor Prisoners for Debt that have been wronged by the Judges Erronious judgements and proceedings against Mag. Charta may be partly redressed and so rest satisfied until the Parliament be pleased to right them further as shall appear hereafter they may So likewise may that Prisoner which is Imprisoned again after his inlargement by Garlands Act be Enlarged again by the same Judge that Committed him without troubling the Parliament or People with any such Appeal as is lately divulged or suffering the Apprentices Out-Cry to run so far That now it will never be stopped till the Thieves be taken And that all Arch Bishops Cap. 4. Excom c. and Bishops shall pronounce the Sentence of Excommunication against all those that by word deed or counsel do contrary to the said Charters or that in any point break or undo them And that the said Curse be twice a year Denounced and Published by the Prelates aforesaid And if the same Prelates or any of them be remiss in the Denunciation of the said Sentences the Arch-Bishops of Canterbury and York for the time being shall Compel and Distrain them to the Execution of their Duties in Form afore-said This Excommunication the Prelates could not pronounce without Warrant by Authoritie of Parliament L. C. upon Confir Cart. f. 527. because it concerned Temporal causes Expost and Quer. Was not the Authority of this Parliament sufficient Warrant for Prelates to pronounce Excommunication according to the Tenor and limitation of this Act Doth not the Lord Coke say before That this Act is not onely an Express Confirmation of Magna Charta but also a Confirmation of it in Law Doth he not say before that That Magna Charta should live for ever and in all Successions of Ages for evermore Is not the substance of the Excommunication given by this Act to the Prelates to pronounce Had the Prelates any more to do therein but to pronounce an Excommunication What meaneth Ipso Facto in the Act but to let all future Ages understand That the breach of Mag. Cha. which is a Declaration of the Fundamental Laws of England is such an Offence as deserveth an everlasting Curse inflicted by the Law it self upon the Breakers for ever Which Curse receiveth no more strength from the Pronouncer than a Sentence of Death from a Iudge who doth but tell a Fellon whom the Law condemneth what shall be the manner of his Death If any Excommunication was ever pronounced by virtue of this Act as there were two in two several Kings Reigns were not those Excommunications in force and so to continue as long as Magna Charta it self the Prelates and their Successours neglect of their Duties by discontinuing such Denunciations twice yearly afterwards notwithstanding If so Are not those Excommunications still in force except Absolutions be produced granted and given by equal Authority to that whereby those Excommunications were Denounced If so Are not Excommunications until Absolutions of the same accompt and validity in Law as Out-lawries until they be reversed If so Are not all the Lands Goods and Chattels of all Excommunicats now the States as formerly they were the Kings and so Seizable Sequestrable and Convertible to that use until Absolution And ought not satisfaction precede Absolution Ought not that satisfaction extend to every particular man that hath been wrong'd in this case which as the L. C. saith is a Temporal case and so called in respect of the interest of all men called by the Clergy Temporal for distinction from themselves that would be called Spiritual And so as I believe not to be commuted by a Prelatical Sentence to a trivial Pennance nor pardoned by Parliament without excepting every particular Interest And what Parliament can Pardon or Absolve Offendours against Magna Charta but by the Rules of Magna Charta without offending Magna Charta themselves and incurring the same Excommunication as they have incurred that would be Absolved If Excommunications be no Terrors to Atheistical Judges Justices c. who neither Believe nor fear Heaven Hell God Justice nor Laws though they cannot in nature and reason but know that such there are and are to be beleived feared and obeyed shall not Excommunications be sufficient Warrants for Christians English Christians in England being warranted not onely as the L. C. saith By
Authority of Parliament but of many Parliaments such Parliaments of such Infallibility as were those wherein Magna Charta and all its Confirmations were made and grounded upon the Common-Laws of England which as all Lawyers profess were grounded upon the Law of God the Word of God the God of Christians Christ Jesus the God of Truth even Truth it self to put them in Execution If not To what ends are Parliaments or the Laws of God and man to such as dare not or will not if and when they may Doth not the Statute of Ano. 1o. P. M. cap. 12o. which made it Fellony for twelve English persons or above to assemble together of purpose to break any point of the Laws of England imply it to be Warrantable for all the People of England to Assemble together to cause the Laws of England made by all their consents to be observed and to punish not onely the Breakers but also the onely begetters and causers of all the Breakers and Breaches of all the Laws of England the onely assumers of the knowledg thereof and concealers of that knowledge from the People so that none but themselves can knowingly break the Laws because they will not let them know them Lastly If Excommunications be nothing formidable to Lawyers to make them care whether they incur or shun them but as their profit guids them Let us see what the L. Coke saith fol. 536. concerning the conclusion of this Act and the Seals that were put to it and the Oaths of the King and Parliament then and for ever for the Ratification of it omitted in the Stat. at large in Print but to be seen in the Tower Rot. Parl. 7o. Hen. 4th no. 60. begining with the word Simile c. Note saith he the Solemnitie of this Act in that all the Arch-Bishops Bishops Earls Berons c. did put their Seals thereunto A rare example which was done for the obliging of them the more firmly to the observation of this Act which concerned the Laws Liberties and Free-Customs of their Countrey and for their greater Obligation for the due Observation of this Act they took a voluntary Corporal Oath And let us note Expost Q. that if the Judgement of God and this Parliament hath made the Prelates sensible of their slighting of their Predecessors Excommunications seals and oaths by what justice or excuses shall Lawyers avoid the same Judgement And though the Ignorance of Mag. Charta and the Law which Lawyers have begotten caused by concealing the same from them as aforesaid can be no safe Plea for any with God or man without prayers for Remission and manifestation of Repentance yet is Ignorance a better subject for mercy than knowing wilfulness and the people while ignorant of Mag. Charta are more capable of grace for the breaking of it than when they know it if they put not the Iudgements of it in Execution against the causers of their offence Now I shall let you see that there were two Excommunications denounced against the breakers of Mag. Charta according to this Statute as followeth The Year of our Lord One thousand two hundred fiftie three Excomunic prim the third of May in the great Hall of the Ring at Westminster in the presence and by the assent of the Lord Henry by the Grace of God King of England and the Lord Richard Earl of Cornwall his brother Roger Bigor Earl of Norfolk and Suffolk Marshal of England Humohrey Earl of Herford Henry Earl of Oxford John Earl Warren and other estates of the Realm of England We Boniface by the mercie of God Arch-bishop of Canterbury Primate of all England T. of London H. of Ely S. of Worcester E. of Lincoln W. of Norwich P. of Herford W. of Salisbury W. of Durham R. of Excester M. of Carlile W. of Bath E. of Rochester T. of S. Davids Bishops apparrelled in Pontificals with tapers burning against the breakers of the Churches Liberties and of the Liberties or other Customs of the Realm of England and namely of those which are contained in the Charter of the Common Liberties of England Charter of the Forrest have denounced the sentence of Excommunication in this Form By the Authoritie of Almightie God the Father the Son and the holy Ghost and of the glorious Mother of God and perpetual Virgin Mary of the blessed Apostles Peter and Paul and of all Apostles and of all Martyrs of blessed Edward King of England and of all the Saints of heaven We Excommunicate accurse and from the benefits of our holy Mother the Church we sequester all those that hereafter willingly and maliciously deprive or spoil the Church of her Right and all those that by any craft or wiliness do violate break diminish or change the Churches liberties and Free-customs contained in the Charters of the Common liberties and of the Forrest granted by our Lord the King to Arch bishops Bishops and other Prelates of England And likewise to the Earls Barons Knights and other Freeholders of the Realm and all that secretly or openly by deed word or counsel do make Statutes or observe them being made or that bring in Customs or keep them being brought in against the said libertis or any of them the Writers Lawmakers Counsellors and the Executors of them and all those that shall presume to Judge against them All and every which Persons before mentioned that willingly shall commit any thing of the Premises let them well know That they incur the foresaid sentence Ipso sacto first upon the deed done And those that commit ought ignorantly and be admonished except they Reform themselves within 15. daies after the time of the Admonition and make full satisfaction for that they have done at the will of the Ordinary shall be from that time forth wrapped in the same sentence And with the same sentence we burthen all those that presume to perturb the peace of our Sovereign Lord the King and of the Realm To the perpetual memory of which thing We the aforesaid Prelates have put Our Seals to these Presents What though the Form of this Excommunication be Popish Expost and Quer. Is not the Substance the maintenance of Englands Liberties And is not that all which the meaning of this Law requireth If Judges and Prelates as well since King Hen. 8. as before have neglected their Duties in Itterating the charge of their Functions the first in pronoucing Sentence and the other in Executing it doth not once pronoucing once executing of such one Sentence of Law as concerneth all Ages Sexes and Conditions of People to learn and remember no less for the Preservation of their lives and livelihoods than Scriptures for their Salvation take away the plea of Ignorance from all men Shall any man commit that sin which he knoweth to be once so Declared by the Law and think to avoid punishment because not often so Declared by Law-Professours Are not all men bound to search the Scriptures and
learn the Laws at their perils therefore If Ignorance were a plea shall knowledge be excused Professors of knowledg nay such as ingross that Profession from all others nay more such as are the onely causers and punishers of all other mens Ignorance It appeareth that this Sentence was Denounced in the time of King Hen. 3d. Now followeth another Denounced upon the said Confirmation made in the 25th year of King 8d 1o. viz. In the Name of the Father Excom 2. the Son and the Holy Ghost Amen Whereas our Sovereign Lord the King to the Honour of God and Holy Church and for the common profit of the Realm hath granted for him and his Heirs for ever these Articles above written Robert Arch-Bishop of Cauterbury Primate of all England Admonished all his Province Once Twice and Thrice Because that shortness will not suffer so much delay as to give knowledge to all the People of England of these Presents in Writing We therefore injoyn all persons of what Estates soever they be that they and every of them as much as in them is shall uphold and maintain these Articles granted by our Sovereign Lord the King in all points And all those that in any point do resist or break or in any manner hereafter procure counsel or any wise assent to resist or break those Ordinances or go about it by word or deed openly or privily by any manner of pretence or colour We the foresaid Arch-Bishop by our Authority in this Writing expressed do Excommunicate and accurse and from the Lord Jesu Christ and from all the company of Heaven and from all all the Sacraments of Holy Church do sequester and exclude Doth not the word Hereafter Expost Q. 1 extend to all successions and implie a Duration as long as there be a Mag. Charta and a breaker of it Do not Parliamentarie Oaths as well as their Laws include absents and futures as well as present If neither Oaths nor Excommunications be obligatorie to Atheists shall not their hands and seals bind them and their Heirs and Executors after them as common Bonds signed and sealed between private parties commonly do And more specially such as take upon them the sole Execution and Administration of the Laws Liberties and Freehold of England Shall not Charters of Parliament made signed sealed and confirmed by Authoritie of Parliaments bind all Subjects their Heirs Executors and Administrators as well and as far as private Charters of Feofments shall bind their Contractors and their Heirs c. Nay as far as Acts of Parliament can bind till repealed Is not every Court called Curia of the Care it ought to have to execute that charge it undertaketh and not to exact and raise Fees c. for discharging themselves of all their said Obligations to do even Justice to all men and to force men to pay those exactions even for doing injustice If all before written be not sufficient to discover that to be true and that therefore the Lives Lands Goods possessed by Judges Lawyers all or most of them are in the States power to seize into their hands to the use of the Common-wealth as aforesaid let us look a little further and we shall find more that may And first the Statute called Articuli super Chartas viz. Stat. of Artic. on the great Chart. A. 28. Ed. 1. Articles upon the great Charters made 28. of Ed. 1. viz. the same year as the Confirmation at large which consisteth of 38. chapters of Magna Charta was made proveth further as followeth For as much as the Articles of the great Chartâ—r of the Liberties of England Preamble and of the Charter of the Forrest the which King Henry Father to our Sovereing Lord the King granted to his People for the Weal of his Realm have not been heretofore observed ne kept and all because there was no punishment executed upon them which offended against the points of the Charters before mentioned Our Sovereign Lord the King hath again granted revived confirmed them at the requests of his Prelates Earls Barons assembled in His Parliament holden at Westminster in the â—8 year of his reign And hath ordained enacted and established certain Articles against all them that offend contrary to the points of the said Charters or any part of them or that in any wist transgress them in the form that ensueth viz. First of all That from henceforth the great Charter of the Liberties of England granted to all the Commonaltie of the Realm and the Charter of Forrest in like manner granted shall be observed kept maintained in every point in as ample wise as the King hath granted renued and confirmed them by this Chart. And that the Charter be delivered to every Sheriff of England under the Kings Seal to be read four times in the year before the people in the full County that is to wit the next County day after the Feast of S. Michael and the next County day after the Feast of the Circumcision and after Easter and after the Feast of S. John Baptist And for these two Charters to be firmly observed in every point and Article where before no remedy was at the Common Law there shall be chosen in every Shire Court by the Commonaltie of the same shire three substantial men Knights Justices of Oyer Term. or other lawfull wise and well disposed Persons to be Iustices which shall be assigned by the Kings Letters Patents under the great Seal to hear and determine without any other Writ but onely their Commission such plaints as shall be made upon all those that commit or offend against any point contained in the aforesaid Charters in the Shires where they be assigned as well in Franchises as without and as well for the Kings servants out of their places as for other And to hear the plaints from day to day without any delay and to determine them without allowing the delays which be at the Common Law And the same Knights shall have power to punish all such as shal be attainted of any Trespass done contrary to any point of the two said Charters where no remedy was before at the Common Law as before is said by Imprisonment or by Fine or by Amerciament according to the Trespass Nevertheless the King nor none of his Councel that made this Ordinance intend that by virtue hereof any of the foresaid Knights shall hold any manner of Plea by power for to admit any suit in such cases wherein there hath been remedy provided in times passed after the course of the Common Law by writ Nor also that the Common Law should be prejudiced nor the Ch. aforesaid in any point And the K. Willeth that if all three be not present or cannot at all times attend to do their Office in form aforesaid the King commandeth that two of them shall do it And it is Ordained that the Kings Sheriffs and Bailiffs shall be attendant to do the commandments of
the foresaid Iustices as far forth as appertaineth unto their Offices And besides these things granted upon the Articles of the Charters aforesaid The King of his special Grace for redress of the grievances that the people hath sustained by reason of his Wars and for the amendment of their Estate to the intern that they may be the more ready to do him service and the more willing to assist and aid him in time of need hath granted certain Articles the which he supposeth shall not onely be observed of his leige people but also shall be as much profitable or more than of the Articles heretofore granted One of the causes for the making this Act L. Coke f. 537 538 539. was saith the Lord Coke as in the Preamble is suggested that there was no certain punishment in many points established by the said Charters against the violators of the same which also by this Act saith he is remedied And the word People here saith he doth include all the Kings Subjects c. And again the word Pain ne fuit estable some read saith he Pain ne fuit execute and that is true in effect but the Original is Pain ne fuit estable that is no pain was set down certain And saith he fol. 539. This Act had but the force of a Charter until confirmed by this Parliament the 34th Ed. 1. And that these Charters should be read four times in the year in full County here is an order taken for the publishing And Ou remedie ne fuit avant c. is to be construed saith he where no Action was given by the Kings Writ to be pursued at Common Law c. Again here saith he for the better Execution of those glorious two Lights Magna Charta and Charta Forestae a new Court and new Justices were appointed c. Again saith he these clauses against the Kings Servants out of their places as well as others And to hear the Plaints without delay day by day and to determine them without admitting such delaies as be at Common Law was the first ground of the raising of the Justices called Trail Baston and their Courts so called in respect of their precipitate proceedings from day to day without such convenient leisure and time as Common Law allowed c. they in the end had such Authoritie as Justices in Eyer but albeit they had their Authoritie by Act of Parliament yet if they erred in judgement a Writ of Error did lie by the general Rule of the Common Law to reverse the Judgement in the Kings-Bench which being once resolved and known and their Jurisdiction fettered with so many limitations their Authoritie by little and little vanishâ—d Expost and Quer. Was there any certain Pain established by this Statute against the violators of Magna Charta other than by Commission in Eyer that the Justices might determine and punish the Offendors by Imprisonments Fines or Amerciaments according to the Trespass Ought not the Justices of the Kings-Bench to have so punished all such as were Indicted before Sheriffs or Justices in Eyer who had power to inquire and certifie them of all such Offendors and Offences against Magna Charta by the Statute of Marlebridge 51. Hen. 3d Doth not the Lord Coke say elsewhere That all Statutes ought to be construed so as that there should be no failer of Justice should not the Justices of the Kings-Bench have construed Magna Charta so Doth not the 14th chap. of Mag. Charta expresly direct That all offendors ought to be Amercied by their equals according to the quantitie of the Trespass Doth the Lord Coke speak truth when he saith this Statute gave any man Remedie for the certaintie of the punishment other than Magna Charta did before Was it not made more uncertain by referring it to the Justices in Eyers discretion whether Amerciaments Fyne or Imprisonment Doth he not confess plainly when he saith It is true in effect that the Pain was not Executed as some read instead of the Pain was not Established That it was the fault of the Justices of the Kings-Bench in not Executing the Pain of Amercying c. as they might and ought to have done was the cause of Impowering the Justices in Eyer who were but Enquirers before now to determine and punish such Offendors and Offences as they did forbear viz. The Kings Servants with whom by this time they of the Kings-Bench tampered for their Offices And was it not for the same cause the people were Declared to be choosers of Justices in Eyer And doth not the Lord Coke shew a great spight between himself and his brethren whom he would have to be ancient and the Justices in Eyer whom he calleth a new Court and new Justices And shew his Memory to be weak as his Envy was strong when he is forced to give himself the Lye either here or in his Exposition of the Stat. of Marlebridge where he saith They were then Justices and a court though but for Inquirie And upon the 23th Chap. of Magna Charta he saith they used before that time to give charge to all Juries concerning Wears c. Doth not the Lord Coke say fol. 235. That Bracton wrote before the making West 1. which was 3. Ed. 1 And doth not Bracton lib. 3. cap. 11 12 and 13. say Justices in Eyer were before his time Doth not Camden in his Britannia pag. 104. say They were Instituted by King Hen. 2 Doth not Hoveden in his Annais part poster fol. 113. b. confirm the same And add that K. Hen. 2. divided the Realm in six parts setled threâ— Justices in Eyer to every part whose names he relateth And doth not the Mirror of Justice lib. 3o. Tit. 1o. Justice in Eyer declare their power at large And as for their Election by the people doth he not say fol. 538. That Magna charta c. containeth the substance of all that is contained in these Articles And doth he not say in his Preamble That Magna Charta is an Act declarative of the ancient Laws and Customs of England before it and no introductive of any new And fol. 558. That of ancient time before the making of this Act all such Officers or Ministers as were instituted either for Preservation of the Peace of the County or for execution of Justice because it concerned all the Subjects of that County and they had a great interest in the due and just exercise of their places were by force of the Kings Writs in every several County chosen in full and open County by the Free-holders of the same County Again saith he So it was then and yet is of Coroners and so it was then and yet is of Knights of the Shire for Parliaments and of the Verdors of a Forest and likewise it was of ancient time of the Sheriff of the County and restored by this Act but this is altered by divers Acts of Parliament Now were not Justices in Eyer therefore
in Countrey whereby he saith the Laws and the due execution thereof were disturbed the remainders of the Factions of the Spencers and others who in Edward the 2d. his time had made such Judges as had put all Laws out of all order so that this King being Edward the 3d. could not reform what had been deformed hitherto but now endeavoureth to do it by means of this Oath made in Parliament in the 18th year of his Reign and this Act made in the 20th If Kings endeavoured to perform their duties as this King did and Judges would not should not such Judges suffer as in this Kings time divers did If Kings and Judges contrary to their Oaths and Offices omit their duties as this Kings Father and his Judges did should not such Kings and Judges suffer for their defaults as he and they did If Kings and Bishops did lately neglect their duties contrary to their Oaths and Offices and were punished for their defaults why not such Judges as were the greater Delinquents for suffering them so to offend and more for consenting thereto And more than that when they advised the same If the secret Sacriledge of one Achan deserved Gods indignation against all his People of Israel until they discovered and punished him and his Offence What doth the manifest extortion a sin no less prohibited than Sacriledge of so many Achans merit of Gods Judgements against the whole Nation of England if they prosecute not or leave unpunished their Offences which are more than Extortions as Perjuries Forgeries Sacriledge it self and divers others spoken of before Judge O People Judge your selves O ye People least ye be Judged FINIS POST-SCRIPT IF it please the Parliament to require more proofs than common experience of the common breach of all the Common Law of England by our common Mercinary Judges they may cause Commissions in Eyer or other Oyers and Terminers to be issued to clear the matter by more particular evidences Eight Observable POINTS OF LAW Executable by Justices of the Peace in their Counties and Magistrates in their Corporations Necessary to be known to the COMMON PEOPLE 1. The choise of all Officers of Peace and Trust anciently in the People cōfirmed by Magna Chart. 1 COunties and Sheriffs Turns were ancient Courts in the time of King Arthur before And in the Turns were tried all Pleas of the Crown in the Counties all Common-Pleas under fourty shillings without Writ and above to any value with Writs according to the Law maxim Quod placita de Catallis debitis c. quae summam 40s attingunt vel excedunt secundùm legem consuetudinem Angliae sine brevi Regis placitari non debent See the Lord Coke upon the 35th Chap. of Magna Charta and upon the Stature of Gloucester fol. 310. 312. Hundreds and Court Burons have the same power and rights and neither Sheriffs nor Stewards are Judges but suiters onely fol. 312. And so all men were to have Law and Justice at home cheap and near and not to fetch it from Westminster far and dear And the Conservators otherwise called Guardians of the Peace before Magna Charta and since had all necessary power to govern their Counties in Peace and to execute all Laws conducing thereunto and to command the power of their Counties to assist them and were chosen as all other Officers of Peace and Trust were by their Counties as the Lord Coke affirmeth 2. This Mutuatus is usual in the Kings-Bench and Common-Pleas to fetch poor men not worth 40. s. from York or Cornwall to London for 5. s. debt or less and to Outlaw him in the Common-Pleas if he come not which example other Courts of Record follow too much 2. As Superiour Courts ought not to incroach upon Inferiour so the Inferiour ought not to defraud the Superiour of those causes that belong to them viz. Neither ought a man be sued in any Court of Record for debt not amounting to 40s by way of mutuatus and other lawless tricks dayly used by Attornies nor in any inferiour Court for debt of 40 shillings or exceeding by dividing it into Actions under 40 shillings In which cases the Defendant ought to be admitted to plead to the jurisdiction of the Court and to have a Prohibition to stay the suit see the Lord Coke upon the Stat. of Glouc. fol. 311. And all Courts were to dismiss all Actions entred without sufficient bail to prosecute answerable for costs and damages If non-suited or cast and not Jo. Do. and Rich. Ro. as is used See F. H. Just P. the Register and Fitz. H. Nat. brevium at large And no Court of Record was to proceed in any action of debt before the Plantiff swore his said debt to be 40s or more and his damage in trespass to be so much at least And if Battery that he was beaten indeed to his uncurable hurt to that value See the Stat. of Glouc. and the L. Coke upon it with his reason for the discontinuance of this practice 3. Doth not the denial of an Habeas Corpus to bring a prisoner before a Judge without Fees both to Judge and Attorney include the sale delay and deniall of Justice while the prisoner is unprovided to buy it 3. All the Kings Writs for the doing justice and right to all men freely and speedily without delay or denial ought to be granted and had freely at the Kings cost And justice ought to be done freely without sale fully without denial and speedily without delay whereby saith the Lord Coke it appeareth that justice must have three qualities viz. To be Free because nothing is more vile than what is venal Full and perfect that it may not halt And speedy because delay is a kind of denial See the L. Coke upon the Stat. of Marlbr chap. 80. Thus to have and do was the Common Law of England and the Liberties and Right of the People before Mag. Char. and saved unto them by it and the best Birth-right they ever had or can have whereby their Lands Goods Wives Children Bodies Lives Honours and Estimations ought to be protected from injuries See the L. C. upon the 29 38 c. of M. C. 4. All defaults offences of Sheriffs Coroners Escheatours c. inquirable and punishable by Justices of Peace 4. Therefore Magna Char. ought to be read and published to the People in all Cathedrals twice yearly And all breakers thereof are excommunicated ipso facto and so twice pronounced by two Acts of Parliament Tit. confirm excommengm t in Rast abridg fol. 65. and 148. And it ought to be read in full County in every shire four times yearly and all the breakers thereof inquired of there and further inquired of and punished by Fines Imprisonments c. by Justices in Eyre two of every Counties chusing whereby 12. or 14. may serve in circuits throughout England and Wales divided into six or seven Provinces as twelve did serve