being in the Negative If the Number was so sacred what was the Constitution it self The very same King executed another of his Judges for passing Sentence of Death upon an Ignoramus return'd by the Jury and a third for condemning a Man upon an Inquest taken ex officio when as the Delinquent had not put himself upon their Tryal More of his Justice might be mention'd even in this very Case There was also a Law made in the time of Aetheldred when the Brittains and Saxons began to grow tame to each other and intercommon amicably that saith Let there be Twelve men of Understanding c. six English and six Welsh and let them deal Justice both to English and Welch Also in those simpler times If a Crime extended but to some shameful Pennace as Pillary or Whipping the last whereof as usual as it may be with us was inflicted only upon their Bond-men then might the Pennance be reduc'd to a Ransom according to the Nature of the Fault but it must be so assest in the Presence of the Judge and by the Twelve that is the Jury of Frilingâ— or Free-men Hitherto Stories tell us of Tryals by Juries and those to have consisted in general Terms of Free-men but PER PARES came after occasion'd by the considerable Saxons neglecting that Service and leaving it to the inferior People who lost the Bench their ancient Right because they were not thought Company for a Judge or Sherif And from the growing Pride of the Danes who slighted such a Rural Judicature and despised the Fellowship of the mean Saxon Free-men in publick Service for the wise Saxon King perceiving the Dangerous Consequence of submitting the Lives and Liberties of the Inferiour but not less useful People to the Dictates of any such superb Humour and on the other hand of subjecting the Nobler Sort to the Suffrage of the Inferior Rank with the Advice of his Wittagenmote provides a third Way most Equal and Grateful and by Agreement with Gunthurne the Dane setled the Law of Peers or Equals which is the Envy of Nations but the famous Priviledge of our English People one of those three Pillars the Fabrick of this ancient and Free Government stands upon This Benefit gets Strength by Time and is receiv'd by the Norman-Duke and his Successors and not only confirm'd in the lump of other Priviledges but in one notable Case for all that might be brought to prove that the fundamental Priviledges mention'd in the Great Charter 9. Hen. 3. were before it The Story is more at large deliver'd by our Learned Selden But thus The Norman Duke having given his half Brother Odo a large Territory in Kent with the Earldom and he taking Advantage at the King 's being displeased with the Arch-Bishop of Canterbury to posses himself of some of the Lands of that See Landfrank that succeeded the Arch-Bishop inform'd hereof petition'd the King for Justice secundum legem terrae according to the Law of the Land upon which the King summon'd a County-Court the Debate lasted three Dayes before the Free-men of Kent in the Presence of Lords and Bishops and others skilful in the Law and the Judgment passed for the Arch-Bishop UPON THE VOTES OF THE FREE-MEN By all which it is I hope sufficiently and inoffensively manifested that these three Principles 1. English men have individually the alone Right of Possession and Disposition of what they have 2. That they are Parties to the Laws of their Country for the Maintenance of that great and just Law 3. That they have an Influence upon and a real Share in the Judicatory Power that shall apply those Laws made have been the ancient Rights of the Kingdom and common Basis of the Government that which Kings under the several Revolutions have sworn to maintain and History affords us so many Presidents to confirm So that the Great Charter made in the 9th of Henry the 3d was not the Nativity but Restoration of ancient Priviledges from Captivity No Grant of New Rights but a New Grant or Confirmation rather of Ancient Laws Liberties violated by King John and gain'd by his Successor at the Expence of a long and bloody War which shew'd them as resolute to keep as their Ancestors had been careful to enact those excellent Laws And so I am come to the Great Charter which is comprehensive and repetitious of what I have already been discoursing and which I shall briefly touch upon with those successive Statutes that have been made in Honour and Preservation of it I shall rehearse so much of it as falls within the Consideration of the foregoing Matter which is a great deal in a little with something of the Formality of Grant and Curse that this Age may see with what Reverence and Circumspection our Ancestors govern'd themselves in Confirming and Preserving it Henry by the Grace of God King of England c. To all arch-Arch-Bishops Earls Barons Sheriffs Provoses Officers unto all Bailifs and our faithful Subjects who shall see this present Charter Greeting Know ye that we unto the Honour of Almighty God and for the Salvation of the Souls of our Progenitors and our Successors Kings of England to the Advancement of Holy Church and Amendment of our Realm of our meer and free Will have given and granted to all arch-Arch-Bishops c. and to all Free-men of this our Realm these Liberties underwritten to be holden and kept in this our Realm of England for evermore Though in Honour to the King it is said to be out of his meer and free Will yet the Qualification of the Persons he is said to grant the ensuing Liberties to shew that they are Terms of Formality viz. To all Free-men of this Realm for they must be free because of these Laws and Liberties since 't was impossible they could be any Thing but Slaves without them Consequently this was not an Infranchising but confirming to Free-men their just Priviledges The Words of the Charter are these A Free-man shall not be amerced for a small Fault but after the Quantity of the Fault and for a great Fault after the Manner thereof saving to him his Contenements or Freehold And a Merchant likewise shall be amerced saving to him his Merchandize and none of the said Amercements shall be assessed but by the Oath of good and honest Men of the Vicinage No Free-man shall be taken or imprison'd nor be disseized of his free hold or Liberties or free Customs or be outlaw'd or exiled or any other wayes destroyed nor we shall not pass upon him nor condemn him but by Lawful Judgment of his Peers or by the Law of the Land we shall sell to no Man we shall deny or defer to no Man either Justice or Right I stand amazed how any Man can have the Confidence to say These Priviledges were extorted by the Barons Wars when the King declares that what he did herein was freely or that they were New
the lawful Inheritance of all Commoners That all Statute-Laws or Judgments whatsoever made in Opposition thereunto should be null and void That all the Ministers of State and Officers of the Realm should constantly be sworn to the Observation thereof and so deeply did after-Parliaments reverence it and so care ful were they to preserve it that they both confirm'd it by 32. several Acts and enacted Copies to be taken and lodg'd in each Cathedral of the Realm to be read four times a Year publickly before the People as if they would have them more oblig'd to their Ancestors for redeeming and transmitting those Priviledges then for begetting them And that Twice every Year the Bishops apparel'd in their Pontificials with Tapers burning and other Solemnities should pronounce the greater Excommunication against the Infringers of the Great Charter though it were but in Word or Counsel for so saith the Statute I shall for further Satisfaction repeat the Excommunication or Curse pronounced both in the Dayes of Henry the Third and Edward the First The Sentence of the Curse given by the Bishops with the King's 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 Humphry 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 Canterbury Primate of England F. of London H. of Ely S. of Worcester E. of Lincoln W. of Norwich P. of Hereford W. of Salisbury W. of Durham R. of Excester M. of Carlile W. of Bath E. of Rochester T. of St. Davids Bishop apparell'd in Pontificials with Tapers burning against the Breakers of the Churches Liberties and of the Liberties and other Customes 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 blessed Apostle Peter and Paul and of all Apostles and of all Martyrs of blessed Edw. King of England and of all the Saints of Heaven We Excommunicate and Accurse and from the Benefit 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 of the Forrest granted by our Lord the King to arch-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 all those that shall presume to judge against them and all and every such Person before-mention'd that wittingly shall commit any Thing of the Premises let them well know that they incur the aforesaid Sentence ipso facto 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-xwriten 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 Time of Popery they were not left without a Sence of Justice and the Papists whom many think no Friends to Liberty and Property under dreadful Penalties injoyn an inviolable Observance of this great Charter by which they are confirm'd And though I am no Roman Catholick and as little value their other Curses pronounc'd upon Religious Dissents yet I declare ingenuously I would not for the World incur this Curse as every Man deservedly doth that offers Violence to the Fundamental Freedoms thereby repeated and confirmed And that any Church or Church Officers in our Age should have so little Reverence to Law Excommunication or Curse as to be the Men that either vote or countenance such Severities as bid Defiance to the Curse and rend this memorable Charter in pieces by disseizing Free-men of England of their Freeholds Libâ—â—ties Properties meerly for the Inoffensive Exercise of their Coâ—science to God in Matters of Worship is a Civil sort of Sacriledge I know it is usually objected That a great Part of the Charter is spent on the Behalf of the Roman Church and other Things now abolisht and if one Part of the great Charter may be repeal'd or invalidated why not the other To which I answer This renders nothing that is Fundamental in the Charter the less valuable for they do not stand upon the Legs of that Act though it was made in Honour of them but the Ancient and primitive Institution of the Kingdom If the Petition of Right were repeal'd the great Charter were never the less in Force it being not the Original Establishment but a Declaration and Confirmation of that Establishment But those Things that are abrogable or abrogated in the great Charter were never a Part of Fundamentals but hedg'd in then for present Emergency or Conveniency Besides that which I have hitherto maintained to be the Common and Fundamental Law of the Land is so reputed and further ratified by the Petition of Right 3 Car. 1. which was long since the Church of Rome lost her Share in the Great Charter Nor did it relate to Matters of Faith and Worship but-Temporalities only the Civil Interest or Propriety of the Church But with what
Priviledges when the very Tenour of the Words prove the contrary for Freehold Liberties or Free Customs are by the Charter it self supposed to be in the Possession of the Free-men at the making and publishing thereof No Free-man shall be taken or imprison'd then he is free this Liberty is his Right Again No Free-man shall be disseized of his Freehold Liberties or free Customs then certainly he was in Possession of them And that great Father in the Laws of England Chief Justice Cook in his Proaem to the 2d Part of his Institutes tells us that thâ—se Laws and Liberties were gather'd and observ'd amongst others in an intire Volumn by King Edward the Confessor confirmed by William sirnamed the Conqueror which were afterwards ratified by Henry the first enlarged by Henry the second in his Constitutions at Clarendon and after much Contest and Blood split between King John and the Barons concerning them were solemnly established at running-Mead near Stanes and lastly brought to their former Station and publish'd by this King Henry the third in the 9th Year of his Reign And though Evil Counsellors would have provoakt him to void his Father's Act and his own as if the first had been the Effect of Force the other of Non-Age yet it so pleased Almighty God who hath ever been propitious to this Ungrateful Island that in the 20th Year of his Reign he did confirm and compleat this Charter for a perpetual Establishment of Liberty to all free-born English Men and their Heirs forever ordaining Quod contravenientes per Dominum Regem cum convicti fuerint graviter puniantur i. e. but whosoever should act any Thing contrary to these Laws upon Conviction should be grievously punished by our Lord the King And in the 22 Year of his Reign it was confirmed by the Statute of Marleb c. 5. and so venerable an Esteem have our Ancestors had for this great Charter and indispensibly necessary have they thought it to their own and Posterities Felicity that it hath been above 30 Times ratified and commanded under great Penalties to be put in Execution Here are the 3 Fundamentals comprehended exprest to have been the Rights and Priviledges of English Men. 1. Ownershp consisting of Liberty and Property in that it supposes English Men to be Free there 's Liberty next that they have Freeholds there 's Property 2. That they have the Voting of their own Law for that was an ancient free Custom as I have already prov'd and all such Costoms are expresly confirmed by this great Charter Besides the People helpt to make it 3. An Influence upon and a real Share in the Judicatory Power in the Execution and Application of Law This is a substantial Part thrice provided for in those sixteen Lines of the great Charter by us rehears'd 1. That no Amercement shall be assessed but by the Oath of good and honest Men of the Vicinage 2. Nor we shall not pass upon him nor condemn him but by Lawful Judgment of his Peers 3. Or by the Law of the Land which is Synonymous or a Saying of equal Signification with Lawful Judgment of Peers for Law of the Land and Lawful Judgment of Peers are the Proprium quarto modo or essential Qualities of these Chapters of our great Charter being communicable Omni soli semper to all and every Clause thereof alike Chief Justice Cook well observes that per legem terrae or by the Law of the Land imports no more then a Tryal by Proces and Writ original at common Law which cannot be without the Lawful Judgment of Equals or a common Jury therefore per legale Judicium parium by the Lawful Judgment of Peers and per legem terrae by the Law of the Land plainly signifie the same Priviledge to the People So that it is the Judgment of the Free-men of England which gives the Cast and turns the Scale of English Justice These Things being so evidently prov'd by long Use and several Laws to have been the first Principles or Fundamentals to the English free Government I take leave to propose this Question May the free People of England be justly disseized of all or any of these fundamental Principles without their Individual Consent Answ With Submission to better Skill I conceive Not for which I shall produce first my Reasons then Authorities 1. Through the Brittish Saxon and Norman Times the People of this Island have been reputed and call'd Free-men by Kings Parliaments Records and Histories and as a Son supposes a Father so Free-men suppose Freedom This Qualification imports a supream Right such a Right as beyond which there is none on Earth to disfree them or deprive them of it therefore an unalterable fundamental Part of the Government 2. It can never be thought that they intrusted any Legislators with this Capital Priviledge further then to use their best Skill to secure and maintain it that is so far as they were a Part of the English Government they never delegated or impower'd any Men that de jure they could deprive them of that Qualification and a Facto ad Jus non valet Argumentum for the Question is not What May be done but what Ought to be done Overseers and Stewards are impower'd not to alienate but preserve and improve other Mens Inheritances No Owners deliver their Ship and Goods into any Man's Hands to give away or run upon a Rock neither do they consign their Affairs to Agents or Factors without Limitation All Trusts suppose such a Fundamental Right in them for whom the Trusts are as is altogether indissolvable by the Trustees The Trust is the Liberty and Property of the People the Limitation is that it should not be invaded but inviolably preserved according to the Law of the Land 3. If Salus Populi be suprema lex the Safety of the People the highest Law as say several of our ancient famous Lawyers and Law-Books then since the aforesaid Rights are as the Sinnews of this free Body politique or that soveraign Cordial without which this free People must needs consume and pine away into utter Bondage it follows they are the highest Law and therefore ought to be a Rule and Limit to all subsequent Legislation 4. The Estate goes before the Steward the Foundation before the House People before their Representatives and the Creator before the Creature The Steward lives by preserving the Estate the House stands by Reason of its Foundation the Representative depends upon the People and the Creature subsists by the Power of its Creator Every Representative in the World is as the Creature of the People for the People make them and to them they owe their Being Here is no Transessentiating or Transubstantiating of Being from People to Representative no more then there is an absolute transferring of a Title in a Letter of Atorney The very Term Representative is enough to the contrary Wherefore as the House cannot stand without its Foundation nor the Creature subsist without