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england_n	aforesaid_a	king_n	lord_n	5,125	5	4.5369	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A54186	The peoples ancient and just liberties asserted in the tryal of William Penn, and William Mead, at the sessions held at the Old-Baily in London, the first, third, fourth and fifth of Sept. 70. against the most arbitrary procedure of that court.	Penn, William, 1644-1718.; Mead, William, 1628-1713, defendant.	1670 (1670)	Wing P1334B; ESTC R222457	38,197	64

assessed but by the Oath of good and honest men of the Vicinage No Free-man shall be taken or imprisoned nor be disseized of his Free-hold or Liberties or free Customs or be Out-lawed or Exiled or any other wayes destroyed nor we shall not pass upon him nor condemn him but by lawfull judgement of his Peers or by the Law of the Land we shall sell to no man we shall deny nor defer to no man either Justice or Right And to all these Customs Liberties aforesaid which we have granted to be holden within this our Realm as much as appertaineth to us and our Heirs we shall observe and all men of this our Realm as well Spiritual as Temporal as much as in them is shall observe the same against all persons in likewise And for this our Gift and Grant of these Liberties and for other contained in our Charter of Liberties of our Forrest the Arch-Bishops Bishops Abots Priors Earls Barons Knights Free-holders and other our Subjects have given unto us the fifteenth pars of all their moveables And we have granted unto them on the other part that neither we nor our Heirs shall procure or do any thing whereby the Liberties in this Charter contained shall be infringed or broken and if any thing be procured by any person contrary to the Premises shall be had of no force nor effect These being Witnesses Boniface Arch-Bishop of Canterbury c. We ratifying and approving those Gifts and Grants aforesaid confirm and make strong all the same for us and our Heirs perpetually and by the Tenor of these Presents do renew the same willingly and granting for us and our Heirs that this Charter in all and singular his Articles for evermore shall be stedfastly firmly and inviolably observed And if any Article in the same Charter contained yet hither to peradventure hath not been observed nor kept we will and by our Authority-Royal command from henceforth firmly they be observed Witness c. The Sentence of Curse given by the Bishops with the Kings consent against the Breakers of the great Charter IN the year of our Lord 1253. the third day of May in the great Hall of the King at Westminster in the presence and by the consent of the Lord Henry by the Grace of God King of England and the Lord Richard Earl of Cornwall his Brother Roger Bigot Earl of Norfolk Marshal of England Humphr● Earl of Hereford Henry Earl of Oxford John Earl Warren and other Estates of the Realm of England We Boniface by the mercy of God Arch-Bishop of Centerbury Primate of England F. of London H. of Ely S. of Worcester E. of Lincoln W. of Norwich P. of Hereford W. of Salesbury W. of Durham R. of Excester M. of Carlile W. of Bath E. of Rochester T. of St Davids Bishops apparelled in Pontificals with Tapers burning against the Breakers of the Churches Liberties and of the Liberties and other Customs of this Realm of England and namely these which are contained in the Charter of the common Liberties of England and Charter of the Forrest have denounced Sentence of Excommunication in this form by the Authority of Almighty God the Father the Son and the Holy Ghost c. of the bl●ssed apostl●s Peter and Paul and of all Apostles and of all Martyrs of bl●ssed Edw. King of England and of all the Saints of Heaven We Excommunicate and 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 willingness 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 Free-holders of the Realm and all that secretly and openly by deed word or counsel do make Statutes or observe them being made and that bring in Customs to keep them when they be brought in against the said Liberties or any of them and all those that shall presume to judge against them and all and every such person before mentioned that ●iningly shall commit any thing of the premises let them well know that they incur the aforesaid Sentence ipso facto A Confirmation of the Charters and Liberties of England and of the Forrest made the twenty fifth year of Edward the first EDward by the Grace of God King of England Lord of Ireland Duke of Guyan to all those that these present Letters shall hear or see greeting Know ye that we to the honour of God and to the profit of our Realm have granted for us and our Heirs and the Charter of Liberties and the Charter of Forrest which were made by common assent of all the Realm in the time of King Henry our Father shall be kept in every point without breach and we will that the same Charters shall be sent under our Seal as well to our Justices of the Forrest as to others and to all Sheriffs of Shires and to all our other Officers and to all our Cities throughout the Realm together with our Writs in the which it shall be contained that they cause the aforesaid Charters to be published and to declare to the People that we have confirmed them in all points and that our Justices Sheriffs Mayors and other Ministers which under us have the Laws of our Land to guide shall allow the same Charters pleaded before them in Judgment in all their points that is to wit the great Charter as the Common Law and the Charter of our Forrest for the Welch of our Realm And we will that if any judgment be given from henceforth contrary to the points of the Charter aforesaid by the Justices or by any other of our Ministers that hold Plea before them against the points of the Charters it shall be undone and holden for naught And we will that the same Charters shall be sent under our Seal to Cathedral Churches throughout our Realm there to remain and shall be read before the people two times by the year And that all Arch-bishops and Bishops shall pronounce the Sentence of Excommunication against all those that by word deed or counsel do contrary to the foresaid Charters or that in any point do break or undo them And that the said Curses 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 aforesaid The Sentence of the Clergy against the Breakers of the Articles above-mentioned IN the Name of the Father the Son and the Holy Ghost Amen Whereas our Soveraign Lord the King to the honour of God and of 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 Canterbury 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 enjoyn all Persons of what estate soever they be that they and every of them as much as in them is shall uphold and maintain these Articles granted by our Soveraign 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 in any wise Assent to Testifie or Break those Ordinances or go about it by word or deed openly or privily by any manner of pretence or colour we the aforesaid Arch Bishop by our Authority in this Writing expressed do Excommunicate and Accurse and from the Body of our Lord Jesus Christ and from all the Company of Heaven and from all the Sacraments of Holy Church do sequester and exclude We may here see that in the obscurest Times of sottish Popery they were not left without a sence of Justice and the necessity of Liberty and Property to be inviolably enjoy'd which brings us to the cause of it 1st The cause of this famous Charter was as we have already said the Incroachments that were made by several Ministers of precedent Kings that almost became Customary and which had neer extinguisht the free Customs due to Englishmen How great care it cost our Ancestors it unbecomes us to ignore or by our silence to neglect It was that Yoak and Muzzle which failed not to dis-able many rageing Bears from entring the pleasant Vineyard of English-Freedoms that otherwise would not have left a fruitful Vine in being Anon we may give the Reader an account of some with their Wages as well as Works 2d The Reason of it is so great that it seems to be its own It is the very Image and Expression of Justice Liberty and Property Points of such eminent importance as without which no Goverment can be said to be reasonable but arbitrary and tyrannical It allows every man that liberty God and nature have given him and the secure possession of his property from the In-road or Invasion of his Neighbour or any else of that constitution It justifies no man in a fault only it provides equal and just ways to have the Offender tryed considering the malice of many Prosecutors and the great value of Liberty and Life 3d The End of it was the most noble of any earthly projection to wit The refixing of those shaken Laws held for many hundred years by constant claim that they living might be re-enstated in their primitive liberty and their posterity secured in the possession of so great a happiness Amongst those many rich Advantages that accrew to the free People of England from this great Charter and those many confirmatory Statutes of the same we shall present the Reader with the sight of some few that may most properly fall under the consideration and inquiry of these present times as found in our Common Law Books 1st That every English-man is born free 2d That no such Free-man shall be taken attached assessed or imprisoned by any Petition or Suggestion to the King or his Counsel unless by the indictment or presentment of good and lawful men where such deeds be done 5 Edw. 3. Chap. 9. 25 Edw. 3. Chap. 4. 17 R. 2. Chap. 6 Rot. Parl. 42 Edw. 3. Cook 2 Inst 46. 3d That no Free-man shall be diseized of his Free-hold or Liberties or free Customs c. Hereby is intended saith Cook That Lands Tenements Goods and Chattels shall not be seised into the Kings hands contrary to this great Charter c. 43. Ass pag. 12. 43 Edw. 3. Cook 2 Inst 32. Neither shall any such Free-man be put from his Livelyhood without answer Cook 2. Inst 47. 4ly That no Free-man shall be out-lawed unless he shroud and hide himself voluntarily from the Justice of the Law 2 3 Phil. Mar. Dier 114. 145. 5ly No Free-man shall be exiled Cook says there are but two Grounds upon which any man may be exiled One by Act of Parliament supposing it not contrary to the great Charter The other in case of abjuration for Fellony by the Common Law c. Cook 2. Inst 47. 6ly No Free-man shall be destroyed that is he shall not be fore-judged of Life Limb Dis-herited or put to Torture or Death every oppression against Law by colour of any usurped Authority is a kind of Destruction and t is the worst Oppression that is done by colour of Justice Cook Institu 2. 48. 7th That no Free-man shall be thus taken or imprisoned diseized out-lawed exiled or destroyed of his Liberties Free-holds and free Customs but BY THE LAWFUL JUDGMENT OF HIS PEERS vulgarly called Jury So that the Judgment of any fact or person is by this fundamental Law referred to the Brests and Consciences of the Jury It s rendred in Latine PER LEGALE JUDICIUM that is Lawful Judgment from whence it is to be observed that the Judgment must have Law in it and be according to Law which cannot be where they are not Judges how far the fact is legal or the contrary Judicium quasi Juris Dictum The Voice of Law and Right And therefore is their Verdict not to be rejected because it is supposed to be the Truth according to their Consciences For Ver dictis from vere dictum is quasi dictum veritatis or a true saying or judgment 9 Hen. 3. 29. Cook Inst 1. 39. Iust 4. 207. Cook says that by the word LEGALE three things are implyed 1st That this was by Law before the Statute and therefore this Statute but declaratory of the antient Law 2d That their Verdict must be legally given wherein is to be observed 1st The Jury ought to hear no Evidence but in the hearing and presence of the Prisoner 2d That they cannot send to ask any Question in Law of the Judges but in the presence of the Prisoner for de facto Jus oritur 3d The Evidence produced by the Kings Counsel being given the Judges cannot collect the Evidence nor urge it by way of charge to the Jury nor yet confer with the Jury about the Evidence but in the presence of the Prisoner Cook Inst 2. 49. 8th Or by the Law of the Land It is a Synonimous expression importing no more then by a Tryal of Peers or a Jury for it is sometimes rendred not or disjunctively but and which is connectively however it can never signifie any thing contrary to the old way of trying by Peers for then it would be connected to a contradiction Besides Cook well observes that in the 4th Chap. of the 25th Edw. 3 Per Legem Terrae imports no more then a Tryal by due process and writ Original at Common Law

Riot is when three or more are met together to beat a man or to enter forcibly into another mans Land to cut down his Grass his Wood or break down his Pales Obser Here the Recorder interrupted him and said I thank you Sir that you will tell me what the Law is scornfully pulling off his Hat Mead. Thou mayst put on thy Hat I have never a Free for thee now Brown He talkes at random one while an Independent another while some other Religion and now a Quaker and next a Papist Mead. Turpe est doctori cum culpa redarguit ad ipsum May. You deserve to have your Tongue cut out Rec. If you discourse on this manner I shall take occasion against you Mead Thou didst promise me I should have fair liberty to be heard Why may I not have the priviledge of an English man I am an English man and you might be ashamed of this dealing Rec. I look upon you to be an Enemy to the Laws of England which ought to be observed and kept nor are you worthy of such priviledges as others have Mead The Lord is Judge between me and thee in this matter Obser Upon which they took him away into the Bale-dock and the Recorder proceeded to give the Jury their charge as followeth Rec. You have heard what the indictment is It is for preaching to the People and drawing a tumultuous Company after them and he was speaking if they should not be disturbed you see they will go on there are three or four Witnesses that have proved this that he did preach there that Mr Mead did allow of it after this you have heard by substantial Witnesses what is said against them Now we are upon the Matter of fact which you are to keep to and observe as what hath been fully sworn at your peril Obser The Prisoners were put out of the Court into the Bale-doke and the charge given to the Jury in their absence at which W. P. with a very raised voyce it being a considerable distance from the Bench spake Pen. I appeal to the Jury who are my Judges and this great Assembly whether the proceedings of the Court are not most arbitrary and void of all Law in offering to give the Jury their Charge in the absence of the Prisoners I say it is directly opposit to and destructive of the undoubted right of every English Prisoner as Cook in the 2 Iustit 29. on the Chap. of Magna Charta speaks Obser The Recorder being thus unexpectedly lasht for his extra-juditial procedure said with an inraged smile Rec. Why ye are present you do hear do you not Pen. No thanks to the Court that commanded me into the Bale-dock and you of the Jury take notice that I have not been heard neither can you legally depart the Court before I have been fully heard having at least ten or twelve Material points to offer in order to invallid their Indictment Rec. Pull that Fellow down pull him down Mead. Are these according to the rights and priviledges of English men that we should not be heard but turned into the Bale-dock for making our defence and the Jury to have their Charge given them in our absence I say these are Barbarous and Unjust proceedings Rec. Take them away into the Hole to hear them talk all night as they would that I think doth not become the honour of the Court and I think you i. e. the Jury your selves would be tired out and not have patience to hear them Obser The Jury were commanded upto agree upon their verdict the Prisoners remaining in the stinking Hole after an hour and halfs time eight came down agreed but four remained above and the Court sent an Officer for them and they accordingly came down the Bench used many unworthy threats to the four that discented and the Recorder addressing himself to Beshell said Sir You are the cause of this disturbance and manifestly shew your self an abettor of faction I shall set a Mark upon you Sir J. Robinson Mr. Bushel I have known you near this fourteen years you have thrust your self upon this Jury because you think there is some service for you I tell you you deserve to be indicted more then any man that hath been brought to the Bar this day Bush No Sir John There were threescore before me and I would willingly have got off but could not Bloodw I said when I saw M. Bushel what I see is come to pass for I knew he would never yield Mr. Bushel we know what you are May. Sirrah you are an impudent Fellow I will put a mark upon you Obser They used much menacing Language and behaved themselves very imperiously to the Jury as persons not more void of Justice then sober Education After this Barbarous Usage they sent them to consider of bringing in their Verdict and after some considerable time they returned to the Court. Silence called for and the Jury called by their names Cla. Are you agreed upon your Verdict Jury Yes Cla. Who shall speak for you Jury Our Fore-man Cla. Look upon the Prisoners at the Bar How say you Is William Penn guilty of the matter wherefore he stands indicted in manner and form or not guilty Fore-m. Guilty of speaking in Gracious-Street Court Is that all Fore-m. That is all I have in commission Recor. You had as good say nothing May. Was it not an unlawful Assembly you mean he was speaking to a Tumult of People there Fore-m. My Lord This was all I had in Commission Obser Here some of the Jury seemed to buckle to the questions of the Court upon which Bushel Hammond and some others opposed themselves and said they allowed of no such word as an unlawful Assembly in their Verdict at which the Recorder Mayor Robinson and Bloodworth took great occasion to villifie them with most opprobious language and this Verdict not serving their turns the Recorder expressed himself thus Recor. The Law of England will not allow you to part till you have given in your Verdict Jury We have given in our Verdict and we can give in no other Recor. Gentlemen you have not given in your Verdict and you had as good say nothing therefore go and consider it once more that we may make an end of this troublesome business Jury We desire we may have Pen Ink and Paper Obser The Court adjourned for half an hour which being expired the Court returns and the Jury not long after The Prisoners were brought to the Bar and the Juries names called over Clar. Are you agreed of your verdict Jur. Yes Clar. Who shall speak for you Jur. Our Fore-man Clar. What say you look upon the Prisoners Is William Penn guilty in manner and form as he stands indicted or not guilty Fore-m. Here is our Verdict holding forth a piece of Paper to the Clark of the Peace which follows WE the Jurors hereafter named do find William Pen to be guilty of Speaking or Preaching to an Assembly

Reformation then the Arbitrary Power and terrifying Raks of the Spanish Inquisition And doubtless the supream Governours of the Land are highly oblieged in Honour and Conscience in discharge of their Trust to God and the Peoples to take these things into their serious consideration as what is expected from them by those who earnestly wish theirs and the Kingdoms safety and prosperity A Postscript The Copy of Judge Keeling's Case taken out of the Parliament Iournal Die Mercurij 11th Decembris 1667. THe House resumed the Hearing of the rest of the Report touching the matter of Restraints upon Juries and that upon the examination of divers Witnesses in several Clauses of restraints put upon Juries by the Lord Chief Justice Keeling whereupon the Committee made their Resolutions which are as followeth First That the proceedings of the Lord Chief Justices in the Cases now reported are Innovations in the Trial of men for their Lives and Liberties and that he hath used an Arbitrary and Illegal power which is of dangerous consequence to the Lives and Liberties of the people of England and tends to the introducing of an Arbitrary Government Secondly That in the place of Judicature the Lord Chief Justice hath under-valued vilified and contemned Magna Charta the great preservers of our Lives Freedom and Propertie Thirdly That he be brought to Trial in order to condign punishment in such manner as the House should judge most fit and requisite Die Veneris 13th Decembris 1667. Resolved c. That the Presedents and Practice of Fining or Imprisoning Jurors for Verdicts is Illegal Now whether the Justices of this Court in their Proceedings both towards the Prisoners and Jury have acted according to Law to their Oaths and Duty and to do Justice without partiality whereby Right might be preserved the Peace of the Land secured and our Ancient Laws established or whether such Actions tend not to deprive us of our Lives and Liberties to rob us of our Birth-right the Fundamental Laws of England and finally to bring in an Arbitrary and Illegal power to usurp the Benches of all our Courts of Justice we leave the English Reader to judge Certainly there can be no higher affront offered to King and Parliament then the bringing their Reputations into suspition with their People by the irregular actions of subordinate Judges And no Age can parallel the carriage of this Recorder Mayor c. Nor can we think so ignobly of the Parliament as that they should do less then call these Persons to account who fail'd not to do it to one less guilty and of more repute to wit Judge Keeling For if his behaviour gave just ground of jealousie that he intended an Innovation and the introducing an Arbitrary Government this Recorder much more Did chief Justice Keeling say Magna Charta was Magna farta so did this Recorder too And did Justice Keeling Fine and Imprison Juries contrary to all Law so did this Recorder also In short there is no difference unless it be that the one was questioned and the other deserves it But we desire in this they may be said to differ That though the former escap'd punishment the latter may not who having a Presedent before did notwithstanding notoriously transgress To conclude The Law supposes the King can't err because it is willing to suppose he alwayes acts by Law and Volunt as Legis est voluntas Regis Or the Kings Will is regulated by the Law but it says no such thing of his Judges And since they are oblig'd by Oath to disregard the Kings Letters though under the Broad and privy-Seal if they any wise oppugn or contradict the Laws of the Land and considering that every singular Action of an inferior Minister has an ugly reference to the Supream Magistrate where not rebuked we can't but conclude that both Judges are answerable for their irregularities especially where they had not a limitation of a Kings Letter or Command and that the Supream Magistrate is oblig'd as in Honour and Safety to himself Alfred-like to bring such to condign punishment lest every Sessions produce the like Tragical Scenes of Usurpation over the Consciences of Juties to the villifying and contemning of Justice and great detriment and prejudice of the good and honest men of this Famous and Free City FIAT JUSTICIA FINIS ERRATA PAge 5. after line 20. read John Robinson Alderman and Richard Brown The line following r. Call over the Jury P. 6. before the first l. r. the Indictment P. 7. l. 25. for before r. to P. 10. l. 26. blot out to P. 17. l. 4. r. is not P. 19. l. 7. instead of is he guilty r. is W. P. guilty P. 26. l. 11. r. to the terror P. 27. l. 6. for as r. and P. 32. l. 13. for Nern r. Horn P. 44. l. 11. for For Ver dictis from r. For Verdict from P. 47. l. 31. for Palaris r. Phalaris Obser at this time several upon the Bench urged hard upon the Prisoner to bear him down 9 H. 3. confirm'd 28 Ed. 3. Chap. 1. the form of ancient Acts c. Co. 2. Inst fol. 2. Chap. 14 Cha. 29. ☜ ☞