no Man of what Estate or Condition soever he be shall be put out of his Lands or Tenements nor taken nor Imprisoned nor Dis-inherited without being brought in to Answer by due Process of Law 5. And by another Statute made in the two and fortieth year of the Reign of the said King Edward the Third it is Enacted That no Man be put to Answer without Presentment before Justices or matter of Record or by due Process and Writ Original according to the Old Law of the Land and if any thing be done to the contrary it shall be void in Law and holden for Errour 6. And by another Statute in the six and thirtieth year of the Reign of the same King Edward the Third it is amongst other things Enacted That all Pleas which shall be pleaded in any Courts before any of the King's Justices or in his other places or before any of his other Ministers or in the Courts and places of any other Lords within the Realm shall be Entred and Enrolled in Latine 7. And whereas by the Statute made in the third year of King Henry the Seventh Power is given to the Chancellor the Lord Treasurer of England for the time being and the Keeper of the Kings Privy Seal or two of them calling unto them a Bishop and a Temporal Lord of the King 's Most Honourable Council and the Two Chief Justices of the King's Bench and Common Pleas for the time being or other two Justices in their Absence to proceed as in that Act is expressed for the punishment of some particular Offences therein mentioned 8. And by the Statute made in the one and twentyeth year of King Henry the Eighth the President of the Council is Associated to joyn with the Lord Chancellour and other Judges in the said Statute of the Third of Henry the Seventh mentioned 9. But the said Judges have not kept themselves to the points limited by the said Statute but have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and to Inflict heavier punishments than by any Law is warranted 2. And forasmuch as all matters Examinable or Determinable before the said Judges or in the Court commonly called the Star-Chamber many have their proper Remedy and Address their due punishment and correction by the Common Law of the Land and in the ordinary course of Justice elsewhere 2. And forasmuch as the Reasons and Motives inducing the Erection and Continuance of that Court do now cease 3. And the Proceedings Censures and Decrees of that Court have by Experience been found to be an Intollerable Burthen to the Subject and the means to Introduce an Arbitrary Power and Government 4. And forasmuch as the Council-Table hath of late times assumed unto it self a Power to Intermeddle in Civil and matters only of private Interest between Party and Party have adventured to determin of the Estates and Liberties of the Subjects contrary to the Law of the Land and the Rights and Priviledges of the Subject by which great and manifold mischiefs and inconveniences have arisen and happened and much Incertainty by means of such proceedings hath been conceived concerning mens Rights and Estates for settling whereof and preventing the like in time to come 3. Be it Ordained and Enacted by the Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Jurisdiction Power and Authority belonging unto or Exercised in the same Court or by any the Judges Officers or Ministers thereof be from the first day of August in the Year of our Lord God one thousand six hundred forty and one clearly and absolutely dissolved taken away and determined 2. And that from the said first day of August neither the Lord Chancellour or Keeper of the Great Seal of England the Lord Treasurer of England the Keeper of the Kings privy Seal or President of the Council nor any Bishop Temporal Lord privy Councellour or Judge or Justice whatsoever shall have any power or Authority to hear examine or determine any matter or thing whatsoever in the said Court commonly called the Star-Chamber or to make pronounce or deliver any Judgment Sentence Order or Decree or to do any Judicial or Ministerial Act in the said Court 3. And that all and every Act and Acts of Parliament and all and every Article clause and Sentence in them and every of them by which any Jurisdiction Power or Authority is given Limited or appointed unto the said Court commonly called the Star-Chamber or unto all or any the Judges Officers or Ministers thereof or for any Proceedings to be had or made in the said Court or for any matter or thing to be drawn into question Examined or determined there shall for so much as concerneth the said Court of Star-Chamber and the power and Authority thereby Given unto it be from the said first day of August Repealed and Absolutely Revoked and made void 4. And be it likewise Enacted That the like Jurisdiction now used and Exercised in the Court before the President and Council in the Marches of Wales 2. and also in the Court before the President and Council Established in the Northern parts 3. and also in the Court commonly called the Court of the Dutchy of Lancaster held before the Chancellour and Council of that Court 4. And also in the Court of Exchequer of the County Palatine of Chester held before the Chamberlain and Council of that Court 5. The like Jurisdiction being Exercised there shall from the said first day of August one thousand six hundred forty and one be also Repealed and Absolutely Revoked and made void any Law prescription Custom or Usage or the said statute made in the third year of King Henry the Seventh or the statute made the one and twentieth of Henry the Eighth or any Act or Acts of Parliament heretofore had or made to the Contrary thereof in any wise notwithstanding 6. And that from henceforth no Court Council or place of Judicature shall be Erected Ordained constituted or appointed within this Realm of England or Dominion of Wales which shall have use or Exercise the same or the like Jurisdiction as is or hath been used practised or Exercised in the said Court of Star-Chamber 5. Be it likewise declared and Enacted by Authority of this present Parliament That neither His Majesty nor his Privy Council have or ought to have any Jurisdiction Power or Authority by English Bill Petition Articles Libel or any other Arbitrary way whatsoever to Examine or draw into question determine or dispose of the Lands Tenements Hereditaments goods or Chattels of any of the Subjects of this Kingdom but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of the Law 6. And be it further provided and Enacted That If any Lord Chancellor or Keeper of the Great Seal of England Lord Treasurer Keeper of the Kings Privy Seal President
thereby p. 205. What persons ought to be Jury men and how Qualified p. 209. Jurors in Antient Law-books call'd Judges p. 211. Of the Duty of Grand Juries p. 212. Their Oath p. 213. That Juries are Judges of Law in some respects as well as Fact p. 220. to p. 223. That Juries are not fineable or any way to be punished under pretence of going contrary to Evidence or against the Judges Directions p. 223. The Conclusion Bushels Case reported by the Learned Sir John Vaughan Licensed by the present Lord Chancellor the Lord Chief Justice North and all the Judges then in England THE PROEM THE Constitution of our English Government the best in the World is no Arbitrary Tyranny like the Turkish Grand Seignior's or the French Kings whose Wills or rather Lusts dispose of the Lives and Fortunes of their unhappy Subjects Nor an Oligarchy where the great ones like Fish in the Ocean prey upon and live by devouring the lesser at their pleasure Nor yet a Democracy or popular State much less an Anarchy where all confusedly are hail fellows well met But a most excellently mixt or qualified Monarchy where the King is vested with large Prerogatives sufficient to support Majesty and restrain'd only from Power of doing himself and his People harm which would be contrary to the very end of all Government and is properly rather weakness than power the Nobility adorn'd with Priviledges to be a Screen to Majesty and a refreshing Shade to their Inferiours and the Commonalty too so Guarded in their Persons and Properties by the fence of Law as renders them Free-men not Slaves In France and other Nations the meer Will of the Prince is Law his Word takes off any mans Head imposes Taxes or seizes any mans Estate when how and as often as he lists and if one be Accused or but so much as suspected of any Crime he may either presently Execute him or Banish or Imprison him at pleasure or if he will be so Gracious as to proceed by Form of their Laws if any two Villains will but swear against the poor Party his Life is gone Nay if there be no Witnesses yet he may be put to the Rack the Tortures whereof make many an Innocent Person confess himself Guilty and then with seeming Justice he is Executed or if he prove so stout as in Torments to deny the Fact yet he comes off with Disjoynted Bones and such Weakness as renders his Life a Burthen to him ever after But in England the Law is both the Measure and the Bond of every Subjects Duty and Allegiance each man having a fixed Fundamental Right born with him as to Freedom of his Person and Property in his Estate which he cannot be deprived of but either by his consent or some Crime for which the Law has Impos'd such a Penalty or Forfeiture For all our Kings take a solemn Oath At their Coronation to Observe and cause the Laws to be kept which was done by our present most Gracious Soveraign Likewise all our Judges take an Oath wherein amongst other points they swear To do equal Law and Right to all the Kings Subjects Rich and Poor and not to delay any Person of Common Right for the Letters of the King or of any other Person or for any other Cause But if any such Letters come to them they shall proceed to do the Law the same Letters notwithstanding Therefore saith Fortesoue who was first Chief Justice and afterwards Lord Chancellor to King Henry the 6th in his Book de Laudibus Legum Angliae cap. 9. Non potest Rex Angliae c. The King of England cannot alter nor change the Laws of his Realm at his pleasure For why he Governeth his People by Power not only Royal but also Politick If his Power over them were only Regal then he might change the Laws of his Realm and charge his Subjects with Tallage and other Burthens without their consent and such is the Dominion that the Civil Laws purport when they cry Quod principi plecuit Legis habet Vigorom The Princes pleasure has the force of a Law But from this much differeth the power of a King whose Government over his People is Politick For he can neither change Laws without the consent of his Subjects nor yet charge them with Impositions against their Wills Wherefore his People do frankly and freely enjoy and occupy their own Goods being Ruled by such Laws as they themselves desire Thus Fortescue with whom Accords Bracton a Reverend Judge and Law-Author in the Reign of King Henry the third saying Rex in Regno suo superiores habet Deum Legem The King in his Realm hath two Superiors God and the Law for he is under the Directive though not Coercive Power of the Law and on the same Score Judge Vaughan speaking of our Fundamental Laws which are Coeval with the Government sticks not to say The Laws of England were never the Dictates of any Conquerors Sword or the Placita or good Will and pleasure of any King of this Nation or to speak Impartially and Freely the Results of any Parliament that ever sate in this Land And the late cited Fortescue in his 13 chap. has a very apt similitude to Illustrate and Demonstrate this The Law says he taketh its name a Ligando to bind for thereby the Politick Body is knit and preserv'd together as the Natural Body by the Bones and Sinews and Members which retain every one their proper Functions And as the Head of a Body Natural cannot change his Sinews nor cannot deny or with-hold from his inferiour Members their peculiar Powers and several nourishments of Blood and Spirits no more can a King which is the Head of a Body Politick change the Laws of that Body nor withdraw from his People their proper Substance against their Wills and Consents in that behalf 'T is true the Law it self affirms The King can do no wrong which proceeds not only from a presumption that so Excellent a Person will do none But also because he Acts nothing but by Ministers which from the lowest to the highest are answerable for their doings so that it a King in Passion should command A. to kill B. without process of Law A. may yet be prosecuted by Indictment or upon an Appeal where no Royal Pardon is allowable and must for the same be Executed such Command notwithstanding This Original happy frame of Government is truly and properly call'd an English mans Liberty a Priviledge not to exempt from the Law but to be freed in Person and Estate from Arbitrary Violence and Oppression A greater Inheritance saith Judge Cook is deriv'd to every one of us from our Laws that from our Parents For without the former what would the latter signifie And this Birth-right of English-men shines most conspicuously in two things 1. Parliaments 2. Juries By the first the Subject has a share by his chosen Representatives in the Legislative or Law-making Power for
great or highly in favour at Court but sooner or later they hit him and it proved his Ruine Take a few examples King Edw. the second dotes upon Pierce Gaveston a French Gentleman he wastes the Kings Treasures has undeserv'd Honours conserred on him affronts the antient Nobility The Parliament in the beinning of the Kings Reign Complains of him he is banisht into Ireland The King afterwards calls him home and marries him to the Earl of Glocesters Sister the Lords complain again so effectually that the King not only consents to his second Banishment but that if ever he returned or were found in the Kingdom he should be hâ—ld and proceeded against as an Enemy to the State Yet back he comes and is received once more by the King as an Angel who carries him with him into the North and hearing the Lords were in Arms to bring the said Gaveston to Justice plants him for safety in Scarborough Castle which being taken his Head was Chopt off In King Richard the Seconds time most of the Judges of England to gratifie certain corrupt and pernicious Favourites about the King being sent for to Nottingham were by Perswasions and Menaces prevailed with to give false and Illegal Resolutions to certain questions proposed to them declaring certain matters to be Treason which in truth were not so For which in the next Parliament they were called to Account and Attainted and Sir Robert Tresilian Lord Chief Justice of England was drawn from the Tower through London to Tyburn and there Hanged As likewise was Blake one of the Kings Council and Vske the Under-Sheriff of Middlesex who was to pack a Jury to serve the present Turn against certain Innocent Lords and others whom they intended to have had taken off and five more of the Judges were Banisht and their Lands and Goods forfeited And the Archibishop of York the Duke of Ireland and the Earl of Suffolk three of the Kings Evil Councellors were forced to fly and died miserable Fugitives in Forreign Parts In the beginning of King H. the 8ths Reign Sir Richard Empson Knight Edmond Dudley one of the Barons of the Exchequer having by colour of an Act of Parliament to try People for several Offences without Juries committed great oppressions were proceeded against in Parliament and lost their Heads In the 19 Year of the Reign of King James at a Parliament holden at Westminister there were shewn saith Bakers Chron. Fo. 418. two great Examples of Justice which for future Terrour are not unfit to be here related one upon Sir Giles Mompesson a Gentleman otherwise of Good parts but for practising sundry abuses in erecting and seting up new Inns and Ale-houses and exasting great Summes of Money of people by pretence of Letters Patents granted to him for that purpose was sentenced to be degraded from his Knighthood and disabled to Bear any Office in the Common-Wealth though he avoided the Execution by Flying the Land But upon Sir Francis Mitchel a Justice of Peace of Middlesex and one of the Chief Agents the sentence of Degradation was Executed and he made to ride with his face to the Horse tail through the City of London The other Example was of Sir Francis Bacon Viscount St. Albans Lord Chancellour of England who for Bribery was put from his place and Committed to the Tower In King Charles the firsts time most of the Judges that had given their opinions contrary to Law in the Case of Ship-Money were call'd to Account and forced to Fly for the same And in the 19th year of our present Sovereign the Earl of Clarendon Lord Chancellour of England being questioned in Parliament and retiring thereupon beyond the Seas was by a special Act Banished and Disabled In a word it was well and wisely said of that excellent Statesman Sir William Cecil Lord Burleigh and High Treasurer of England That he knew not what an Act of Parliament might not doe which Apothegm was approved by King James and alleadged as I remember in one of his published Speeches And as the Jurisdiction of this Court is so transcendent so the Rules and Methods of Proceedings there are different from those of other Courts For saith Cook 4. Instit fo 15. As every Court of Justice hath Laws and Customs for its Direction some by the Common Law some by the Civil and Canon Law some by Peculiar Laws and customes c. So the High Court of Parliament suis propriis Legibus Consuetudinibus Subsistit Subsists by it's own Peculiar Laws and Customs It is Lex Consuetudo Parliamenti the Law and Custom of Parliament that all weighty matters in any Parliament moved concerning the Peers or Commons in Parliament assembled ought to be determined adjudged and discussed by the Course of the Parliament and not by the Civil Law not yet by the Common Laws of this Realm used in more Inseriour Courts Which was so declared to be Secundum Legem Consuetudinem Parliaments according to the Law and Custom of Parliament concerning the Peers of the Realm by the King and all the Lords Spiritual and Temporal and the like pari ratione for the same reason is for the Commons for any thing moved or done in the House of Commons and the rather for that by another Law and Custom of Parliament the King cannot take notice of any thing said or done in the House of Commons but by the Report of the House of Commons and every Member of the Parliament hath a Judicial place and can be no Witnâ—â—â— And this is the Reason that Judges ought not to give any opinion of a Matter of Parliament because it is not to be decided by the Common Laws but Secundum Legem Consuetudinem Parliamenti according to the law and Custom of Parliament And so the Judges in diverse Parliaments have confessed And some hold that every offence Committed in any Court panishible by that Court must be punished proceeding Criminally in the same Court or in some higher and not any Inferiour Court and the Court of Parliament hath no higher Thus Cook Great complaints have been made about a late House of Commons sending for some Persons into Custody by their Serjeant at Arms but certainly they did no more therein then what their Predecessiors have often done every Court must be supposed Armed with a power to desend it self from Affronts and Insolencies In all Ages when the House has appointed particular Committees hath it not been usual to order that they shall be impower'd to send for Papers Persons and Records But to bring Men to a sober Consideration of their Duty and Danger I shall give a few Instances besides those before mentioned of what the House of Commons hath done in former Ages 1. Anno 20. Jacobi Doctor Harris Minister of Bletchingly in Surry for misbehaving himself by Preaching and otherwise about Election of Members of Parliament upon complaint was called to the Bar of the House of Commons and there as a Delinquent on his Knees
own Bond to pay the Charges of carrying back the Prisoner if he shall be Remanded by the Court or Judge to which he shall be brought according to the true intent of this present Act and that he will not make any Escape by the way make Return of such Writ 3 And bring or cause to be brought the Body of the party so Committed or Restrained unto or before the Lord Chancellor or Lord Keeper of the Great Seal of England for the time being or the Judges or Barons of the said Court from whence the said Writ shall Issue or unto and before such other person or persons before whom the said Writ is made returnable according to the Command thereof 4 And shall then likewise certifie the true Causes of his Detainer or Imprisonment unless the Commitment of the said party be in any place beyond the distance of twenty Miles from the place or places where such Court or Person is or shall be Residing and if beyond the distance of twenty Miles and not above one hundred Miles than within the space of twenty days after such the delivery aforesaid and not longer III. And to the Intent that no Sheriff Goaler or other Officer may pretend ignorance of the import of any such Writ 2 Be it Enacted by the Authority aforesaid That all such Writs shall be marked in this manner Perstatutum Tricesimo primo Caroli Secundi Regis and shall be signed by the person that Awards the same 3 And if any person or persons shall be or stand Committed or Detained as aforesaid for any Crime unless for Felâ—ny or Treason plainly expressed in the Warrant of Commitment in the Vacation time and out of Term it shall and may be lawful to and for the person or persons so Committed or Detained other than persons Convict or in Execution by Legal Process or any one on his or their behalf to Appeal or complain to the Lord Chancellor or Lord Keeper or any one of His Majesties Justices either of the one Bench or of the other or the Barons of the Exchequer of the degree of the Coif 3 And the said Lord Chancellor Lord Keeper Instices or Barons or any of them upon view of the Copy or Copies of the Warrant or Warrants of Commitment and Detainer or otherwise upon Oath made that such Copy or Copies were denied to be given by such person or persons or any on his her or their behalf attested and subscribed by two Witnesses who were present at the delivery of the same to award and grant an Habeas Corpus under the Seal of such Court whereof he shall then be one of the Judges 5 To be directed to the Officer or Officers in whose Custody the party so Committed or Detained shall be returnable immediately before the said Lord Chancellor or Lord Keeper or such Justice Baron or any other Justice or Baron of the Degree of the Coif of any of the said Courts 6 And upon service thereof as aforesaid the Officer or Officers his or their under Officer or under Officers under Keeper or under Keepers or Deputy to whose Custody the party is so Committed or Detained shall within the times respectively before limited bring such Prisoner or Prisoners before the said Lord Chancellor or Lord Keeper or such Justices Barons or one of them before whom the said Writ is made Return able and in case of his absence before any other of them with the Return of such Writ and the true Causes of the Commitment and Detainer 7 And thereupon within two days after the party shall be brought before them the said Lord Chancellor or Lord Keeper or such Justice or Baron before whom the Prisoner shall be brought as aforesaid shall discharge the said Prisoner from his Imprisonment taking his or their Recognizance with one or more surety or sureties in any sum according to their discretion having regard to the Quality of the Prisoner and Nature of the Offence for his or their appearance in the Court of Kings Bench the Term following or at the next Assizes Sessions or General Goal-delivery of and for such County City or Place where the Commitment was or where the Offence was Committed or in such other Court where the said Offence is properly Recognizable as the Case shall require and then shall Certifie the said Writ with the Return thereof and the said Recognizance or Recognizances into the said Court where such appearance is to be made 6 Unless it shall appear unto the said Lord Chancellor or Lord Keeper or Justice or Justices Baron or Barons that the party so Committed is Detained upon a Legal Process Order or Warrant out of some Court that hath Jurisdiction of Criminal matters or by some Warrant Signed and Sealed with the Hand and Seal of any of the said Justices or Barons or some Justice or Justices of the Peace for such matters or offences for the which by the Law the Prisoner is not Bailable IV. Provided always and be it Enacted That if any person shall have wilfully neglected by the space of two whole Terms after his Imprisonment to pray a Habeas Corpus for his Enlargement such person so wilfully neglecting shall not have any Habeas Corpus to be granted in Vacation time in pursuance of this Act. V. Be it further Enacted by the Authority aforesaid That if any Officer or Officers his or their Under-Officer Under-Officers Under-Keeper or Under-Keepers or Deputy shall neglect or Refuse to make the Returns aforesaid or to Bring the Body or Bodies of the Prisoner or Prisoners according to the Command of the said Writ within the Respective times aforesaid or upon demand made by the Prisoner or Person in his Behalf shall Resuse to deliver or within the space of six hours after demand shall not deliver to the Person so demanding a true Copy of the Warrant or Warrants of Commitment and detainer of such Prisoner which he or they are hereby Required to deliver accordingly all and every the Head Gaolers and Keepers of such Prisons and such other Person in whose Custody the Prisoner shall be detained shall for the first Offence forfeit to the Prisoner or Party Grieved the sum of one hundred pounds 2. And for the second Offence the sum of two hundred pounds and shall and is hereby made Incapable to Hold or Execute his said Office 3. the said penalties to be Recovered by the Prisoner or Party grieved his Executors or Administrators against such Offenders his Executors or Administrators by any Action of Debt Suit Bill plaint or Information in any of the King's Courts at Westmin wherein no Essoign Protection priviledge Injunction Wager of Law or stay of Prosecution by Non vult ulterius prosequi or otherwise shall be Admitted or Allowed or any more than one Imparlance 4. And any Recovery or Judgment at the Suit of any Party Grieved shall be a sufficient Conviction for the first Offence and any after Recovery or Judgment at the suit of a Party Grieved for
what they Swear or if we do not find as the Judge directs we may come into trouble the Judge may Fine us c. I Answer this is a vain fear No Judge dare offer any such thing you are the proper Judges of the matters before you and your Souls are at stake you ought to Act freely and are not bound though the Court demand it to give the Reasons why you bring it in thus or thus for you of the Grand-Jury are sworn to the Contrary viz. To keep secret your fellows Counsel and your own and you of the Petty Jury are no way obliged to declare your motives it may not be convenient T is a notable Case before the Chief Justice Anderson in Q. Eliz. daves A Man was Arraigned for murder the Evidence was so strong that 11. of the Jury were presently for finding him Guilty the 12th man refused and kept them so long that they were ready to starve and at last made them comply with him and bring in the Prisoner not Guilty The Judge who had several times admonisht this Jury-man to join with his Fellows being surprized sent for him discoursed him privately to whom upon promise of Indempnity he at last own'd that he himself was the man that did the Murder and the Prisoner was Innocent and that he was resolv'd not to adde Perjury and a second Murder to the first But to satisfie you that a Jury is no way punishable for going according to their Conscience though against seeming Evidence and the Reasons why they are and ought not to be question'd for the same I shall here Recite an Adjudged Case that of Bushel in the two and twentieth year of His Majesty Reported by the Learned Sir John Vaughan whose Book is Licensed by the present Lord Chancellor the Lord Chief Justice North and all the Judges then in England the said Case begins fol. 135. and continues 150. The whole well worth Reading but I shall only Select Certain Passages The Case was this BUshel and others of a Jury having at a Sessions not found Pen and Mead Two Quakers Guilty of a Trespass Contempt Vnlawful Assembly and Tumult whereof they had been Indicted were fined forty pound a man and Committed till they should pay it Bushel brings his Habeas Corpus and upon the Return it appeared he was Committed For that contrary to Law and against full and Clear Evidence openly given in Court and against the Directions of the Court in matter of Law they had Acquitted the said W. P. and W. M. to the great Obstruction of Justice c. Which upon solemn Argument was by the Judges Resolved to be an Insufficient Cause of fining and committing them and they were discharged and afterwards brought Actions for their Dammage The Reasons of which Judgment are reported by Judge Vaughan and amongst them he Useth these that follow which I shall give you in his own words Fol. 140. One fault in the Return is That the Jurors are not said to have Acquitted the persons Indicted against full and manifest Evidence Corruptly and Knowing the said Evidence to be full and manifest against the Persons Indicted For how manifest soever the Evidence was if it were not manifest to them and that they Believed it such it was not a Finable fault nor Deserving Imprisonment Vpon which Difference the Law of punishing Jurors for false Verdicts principally Depends And Fol. 141. I would know whether any thing be more Common than for two men Students Barristers or Judges to deduce Contrary and opposite Conclusions out of the same Case in Law And is there any Difference that two men should Infer distinct Conclusions from the same Testimony is any thing more known than that the same Author and place in that Author is forceably urg'd to maintain contrary Conclusions and the Decision hard which is in the Right is any thing more frequent in the controversies of Religion than to press the same Texts for Opposite Tenets How then comes it to pass that two persons may not apprehend with Reason and Honesty what a Witness or many say to prove in the Vnderstanding of one plainly one thing but in the Apprehension of the other clearly the contrary thing must therefore one of these Merit Fine and Imprisonment because he doth that which he cannot otherwise do preserving his Oath and Integrity And this is often the Case of the Judge and the Jury And Fol. 142. I conclude therefore That this Return charging the Prisoners to have Acquitted P. and M. against full and manifest Evidence first and next without saying that they did know and Believe that Evidence to be full and Manifest against the Indicted persons is no Cause of Fine and Imprisonment In the Margent of that Fol. 142. it is thus Noted Of this Mind were ten Judges of Eleven the Chief Baron Turner gave no Opinion because not at the Argument And in the same fol. 142. he saith The Verdict of a Jury and Evidence of a Witness are very Different things in the Truth and Falshood of them a Witness swears but to what he hath heard or seen generally or more largely to what hath fallen under his Senses But a Jury-man swears to what he can Inferr and conclude from the Testimony of such Witnesses by the Act and force of his Understanding to be the Fact Inquired after which differs nothing in Reason though much in the Punishment from what a Judge out of Various Cases consider'd by him Infers to be the Law in the question before him If the meaning of these Words finding against the Direction of the Court in matter of Law be That if the Judge having heard the Evidence given in Court for he knows no other shall tell the Jury upon this Evidence the Law is for the Plaintiff or for the Defendant and you are under the pain of Fine and Imprisonment to find accordingly and the Jury ought of duty so to do then every man sees that the Jury is but a troublesome delay great Charge and no use in determining Right and Wrong and therefore the Tryals by them may be better Abolished than continued which were a strange new found Conclusion after a Tryal so Celebrated for many hundred Years It is true if the Jury were to have no other Evidence for the Fact but what is Deposed in Court the Judge might know their Evidence and the Fact from it equally as they and so direct what the Law were in the Case though even then the Judge and Jury might honestly differ in the Result from the Evidence as well as two Judges may which often happens but the Evidence which the Jury have of the Fact is much otherwise than that For 1. Being Returned of the Vicinage where the Cause of Action ariseth the Law supposeth them thence to have sufficient Knowledge to Try the matter in Issue and so they must though no Evidence were given on either side in Court but to this Evidence the Judge is a stranger 2. They may have Evidence from their own Personal Knowledge by which they may be assured and sometimes are that what is deposed in Court is absolutely false but to this the Judge is a stranger and he knows no more of the Fact than he hath Learned in Court and perhaps by false Depositions and consequently knows nothing 3. The Jury may know the Witnesses to be Stigmatized and Infamous which may be unknown to the parties and consequently to the Court. Fol. 148. To what end is the Jury to be Returned out of the Vicinage where the Cause of Action ariseth to what end must Hundredors be of the Jury whom the Law supposeth to have nearer knowledge of the Fact than those of the Vicinage in General to what end are they Challenged so scrupulously to the Array and Poll to what end must they have such a certain Free-hold and be Probi Legales homines and not of Affinity with the party concern'd to what end must they have in many Cases the View for Exacter Information chiefly to what end must they undergo the Punishment of the Villanous Judgment if after all this they Implicitly must give a Verdict by the Dictates and Authority of another Man under Pains of Fines and Imprisonment when Sworn to do it according to the best of their own Knowledge A man cannot see by anothers Eye nor hear by anothers Ear no more can a man conclude or Infer the thing to be Resolved by anothers Vnderstanding or Reasoning and though the Verdict be right the Jury give yet they being not assured that it is so from their own Vnderstanding are Forsworn at least in foro Conscientiae Fol. 149. And it is Absurd to Fine a Jury for finding against their Evidence when the Judge knows but part of it for the better and greater part of the Evidence may be wholly unknown to him and this may happen in most Cases and often doth Thus far Judge Vaughan whose words I have faithfully Recited and with it shall conclude this Subject Recommending those that would be further satisfied in the Law touching the Power and Duty of Juries to those two Excellent Learned Treatises lately published the one Intituled A Guide to English Juries c. to be Sold by Mr. Cockeril at the Three Legs over against the Stocks-Market the other The Security of English-mens Lives or the Trust Power and Duty of the Grand Juries of England Printed for Benj. Alsop in the Poultrey both which are extreamly well worthy of every English mans Perusal that is liable to be call'd to that Office And now I shall take Leave of the Reader who I hope will join with me and all English Protestants in this Prayer THat Almighty God would preserve our Religion put a stop to the Growth of Popery Confound all their Plots Protect our present Gracious King Defend us both from a Forreign Yoak and Domestick Slavery but continue to us the Enjoyment of our good old Laws Liberties and Priviledges and bring all those to exemplary Justice that have or shall dare attempt to Subvert Diminish or Vndermine them Amen FINIS 1 See Book of Oaths p. 1. 3. 2 Bakers Cron. sol 741. 3 Book of Oaths p. 216. ☞
English Liberties Or The Free-Born SUBJECT's Inheritance CONTAINING I. MAGNA CHARTA The Petition of Right The Habeas Corpus Act and divers other most Vseful Statutes With Large COMMENTS upon each of them II. The Proceedings in Appeals of Murther The Work and Power of Parliaments The Qualifications necessary for such as should be chosen to that great Trust Plain Directions for all Persons concerned in Ecclesiastical Courts and how to prevent or take off the Writ De Excommunicato Capiendo As also the Oath and Duty of Grand and Petty Juries III. All the Laws against Conventicles and Protestant Dissenters with Notes and Directions both to Constables and others concern'd thereupon And an Abstract of all the Laws against Papists LONDON Printed by G. Larkin for Benjamin Harris at the Stationers Arms and Anchor in the Piazza under the Royal-Exchange A TABLE OF Some of the most Material Contents THe Nature and Happiness of our English Government from page 1. to p. 5. Magna Charta faithfully Recited p. 6 to p. 19. A Comment upon Magna Charta p. 19. to p. 30. 'T is but a Declaration of what the people had right to before p. 19. The occasion and means of obtaining Magna Charta p. 20. Ill Council perswade King Hen 3. to Revoke Magna Charta and the sad end of that wicked Counsellour p. 21. Liberties what p. 24. Monopolies are against Magna Charta p. 25. The King cannot send any man out of England against his will p. 25. Peers what p. 26. Commitment The necessary circumstances where Legal p. 27. Justice it s three properties p. 28. Judges are to obey no Commands from the King though under the Great or Privy Seal much less signified by any little whispering Courtier against Law p. 28. Protection when unlawful p. 29. The Statute of Confirmation of the Charter p. 31 A Solemn Curfe of the Clergy against the Breakers of the Charter p. 33. Another Curse to the same purpose p. 34 The Statute de Tallageo non Concedendo That the King shall lay no Burthens on his people but by their Consent in Parliament p. 36. A Comment thereupon p. 38. to p. 40. There are Omissions and Errors in the Common Printed Statute-Books p. 40. The Stat. cf 25. Edw. 3. declaring what Offences shall be Treason p. 40. A Comment thereupon p. 43. to p. 50. To Compass the Death of the King what p. 44. A Colateral Heir to the Crown is not within this Statute p. 45. Probably Attaint an Errour in the Statute-Book for provably Attaint p. 45. Offences made Treason since this Statute p. 50. The Stat. 13. Car. 2. cap. 1. for safety of His Majesties Person c. p. 51 Notes thereupon p. 57. to 63. There must be two not only Lawful but Credible Witnesses on this Statute p. 58. and 59. Within what time the Party must be question'd and Indicted p. 60. The Sentence or Judgment in High Treason and the signification of each Branch thereof p. 61. The King cannot allow a Lord Convict of Felony the favour of being Beheaded p. 62. Challenge what and to how many p. 62. The Statute 2. Edw. 3. cap. 2. In what Cases only the King shall grant Pardons p. 63. The Comment thereon p. 64. The nature form and proceedings in Case of Appeals of Murder c. Particularly opened to the meanest Capacity from p. 67 to p. 74. Two Statutes That a Parliament shall be holden once every year p. 75. The Comment p. 75. The Act of the 16th Car. 2. that holding of Parliaments shall not be discontinued above three years at the most p. 76. A not able Discourse of the Antiquity use and power of PARLIAMENTS and the Qualifications of such Gentlemen as are fit to be Chosen the peoples Representatives p. 77. to p. 110. Parliament the signification of the word p. 78. City what and how it differs from a Burrough p. 79. Three Estates what the Bishops none of them p. 80. The Parliament has Right to order the Succession to the Crown and he forfeits all his Goods and Chattels that denies it p. 82. and 84. The particular Business of Parliaments p. 83. To punish ill Favourites and Corrupt Ministers of State p. 85. Examples of great Offenders punisht Committed degraded and sentenced by Parliament and particularly some Parsons for Pragmatical Preaching p. 85. to 92 Reflections on State-Divines p. 93. The Mischiefs of felling Voices for Parliament-men for Liquor p. 95. Directions touching Choice of Members in 10 Negative Descriptions who are not fit to be Elected p. 98. to 106. The Characters of such as deserve this great trust in five particulars p. 110. The Stat. of 8. Hen. 6. cap. 7. That only Freeholders should Chuse Knights of the Shire p. 107. 110. The Petition of Right 3. Car. 1. And the Kings Assent thereunto left out in the Statute-Book p. 112. The Habeas Corpus Act 31 Car. 2. cap. 2. p. 117. The Comment thereupon p. 128. An Act for the Benefit of Prisoners for Debt that they shall not be lodged with Felons c. p. 131 An Act for regulating the Privy Council and taking away the Star-Chamber 17. Car. 1. cap. 10. p. 135. Some Notes thereupon p. 144. The Clause of the Act of 31. Car. 2. cap. 1. No man shall be bound to Quarter Souldiers p. 145. The Act touching the Writ de Excommunicato Capiendo 5. Eliz. cap. 23. p. 146. A Comment with a discourse of Excommunication directions how to manage your defence in all Cases in the Bishops Courts and how to prevent or take off the Writ de Excomunicato Capiendo p. 154 to p. 170. Church-Wardens not bound to take any Oath in the Bishops Courts to present p. 170. A Discourse touching the Laws made or endeavoured to be Executed against Protestant Dissenters p. 171. The Acts 1. Eliz. cap. 2. the 23. Eliz. cap. 1. The 29 Eliz. cap. 6. 1 Jac. cap. 4. and 3 Jac. cap. 4. were all made against Papists only and ought not to be Extended against Protestant Dissenters p. 171. to p. 177. Two new Holy days made in the Church of England since His Majesties Restauration p. 173. The opinion of the House of Commons That Acts made against Popish Recusants ought not to be extended against Protestant Dissenters p. 178. The Act of 35 Eliz. cap. 1. Considered 'T is plain from thence that the Acts made against Popish Recusants ought not to affect Sectaries p. 180. The said Act of 35 Eliz. proved to be long since expired p. 181. As also that of the 16th Car. cap 4. Intituled An Act to prevent and suppress seditious Conventicles p. 182. The Oxford or Five Mile Act 17 Car. 2. p. 183. Notes thereupon p. 187. The Act of the 22th Car. 2. cap. 1. To prevent and suppress seditious Conventicles p. 188. Notes upon that Act p. 197. An Abstract of the several Laws in Force against Popery and Papists p. 200. to p. 204. A Discourse of Juries and the Advantages English men enjoy
accord voluntarily and freely give 5 Nor take nor receive any other or greater Sum or Sums for each nights Lodging or other Expences than what is reasonable and fitting in such cases or shall be so adjudged by the next Justice of the Peace or at the next Quarter-Sessions 6. And shall not cause or procure the said person or persons to pay for any other Wine Beer Ale Victuals Tobacco or other things than what the said person or persons shall voluntarily freely and particularly call for And that every Under-Sheriff Gaoler Keeper of Prison or Gaol and every person or persons whatsoever to whose Custody any person or persons shall be delivered or commited by virtue of any Writ of Process or any pretence whatsoever shall permit and suffer the said person or persons at his and their will and pleasure to send for and have any Beer Ale Victuals and other necessary Food where and from whence they please and also to have and use such Bedding Linnen and other things as the said person or persons shall think fit without any purloyning detaining or paying for the same or any part thereof nor shall demand take or receive of the said person or persons any other or greater Fee or Fees whatsoever for his her or their Commitment Release or Discharge or for his her or their Chamber-Rent than what is allowable by Law untill the same shall be settled by three Justices of the Peace whereof one to be of the Quorum of each particular County City and Town Corporate in their several Precincts and for the City of London and Counties of Middlesex and Surrey the two Lord Chief Justices of the Kings's-Bench and Common-Pleas and the Lord Chief Baron or any two of them and the Justices of the Peace of the same in their several Jurisdictions And likewise that the said Lord Chief Justice Lord Chief Baron and Justices of the Peace in their several Jurisdictions and all Commissioners for Charitable Uses do their best Endeavours and Diligence to Examine and finde out the several Legacies Gifts and Bequests bestowed and given for the Benefit and Advantage of the Poor Prisoners for Debt in the several Gaols and Prisons in this Kingdom and to send for any Deeds Wills Writings and Books of Accompts whatsoever and any person or persons concerned therein and to Examine them upon Oath to make true discovery thereof which they have full Power and Authority hereby to do and the same so found out and ascertained to order and settle in some manner and way that the Prisoners hereafter may not be defrauded but Receive the full benefit thereof according to the true intent of the Donors And that these Accounts of the several Legacies Gifts and Bequests given and bestowed upon the several Prisoners for Debt within this Kingdom and the several Rates of Fees and the future Government of Prisons be signed and confirmed by the Lord Chief Justices and Lord Chief Baron or any two of them for the time being and the Justices of the Peace in London Middlesex and Surrey and by the Judges for the several Circuits and Justices of the Peace for the time being in their several Precincts and fairly written and hung up in a Table in every Gaol and Prison before the first day of November 1671. and likewise be Registred by each and every Clerk of the Peace within his or their particular Jurisdiction And after such Establishment no other or greater Fee or Fees than shall be so Established shall be Demanded or Received And whereas it is become the common practice of Gaolers and Keepers of Newgate the Gate-house at Westminster and sundry other Gaols and Prisons to Lodge together in one Room or Chamber and Bed Prisoners for Debt and Felons whereby many times honest Gentlemen Trades-men and others Prisoners for Debt are disturbed and hindered in the night-time from their natural Rest by reason of their Fetters and Irons and otherwise much offended and troubled by their lewd and prophane Language and Discourses with most horrid Cursing and Swearing much accustomed to such persons 2. Be it Enacted by the Authority aforesaid that it shall not be lawful hereafter for any Sheriff Gaoler or Keeper of any Gaol or Prison to put keep or Lodge Prisoners for Debt and Felons together in one Room or Chamber but that they shall be put kept and Lodged separate and apart one from another in distinct Rooms 3. Upon pain that he she or they which shall offend against this Act or the true Intent and meaning thereof or any part thereof shall forfeit and lose his or her Office Place or Imployment and shall forfeit treble damages to the party grieved to be Recovered by vertue of this Act any Law Statute Usage or Custom to the contrary in any wise notwithstanding And to the End that English-men may more entirely enjoy their due Freedoms the prudence of our Legislators have thought fit from time to time to Remove Encroachments thereupon though under pretence of Jurisdictions and Courts of Justice and to prohibit any Exorbitant Arbitrary Power for the future but that all things may be left to the calm and equal proceedings of Law and that most excellent Method of Trial by Juries one of the principal Bulwarks of England's Liberties For an Instance hereof take the Act following An Act for Regulating of the Privy Council and for taking away the Court commonly called the Star-Chamber VVHereas by the Great Charter many times confirmed in Parliament it is Enacted That no Freeman shall be taken or Imprisoned or Disseized of his Freehold or Liberties or Free Customs or be Outlawed or Exiled or otherwise destroyed and that the King will not pass upon him or condemn him but by lawful Judgment of his Peers or by the Law of the Land 2. And by another Statute made in the fifth year of the Reign of King Edward it is Enacted That no man shall be Attached by any Accusation nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattels seized into the King's Hands against the Form of the Great Charter and the Law of the Land 3. And by another Statute made in the five and twentieth year of the Reign of the same King Edward the third it is Accorded Assented and Established That none shall be taken by Petition or Suggestion made to the King or to his Council unless it be by Indictment or Presentment of good and lawful people of the same Neighbourhood where such Deeds be done in due manner or by Process made by Writ Original at the Common Law and that none be put out of his Franchise or Freehold unless he be duly brought in to Answer and fore-judged of the same by the course of the Law And if any thing be done against the same it shall be Redressad and holden for none 4. And by another Statute made in the eight and twentieth year of the Reign of the same King Edward the Third it is amongst other things Enacted That
of the Council Bishop Temporal Lord Privy Councillor Judge or Justice whatsoever shall offend or do any thing contrary to the purport true intent and meaning of this Law Then he or they shall for such offence forfeit the sum of five hundred pounds of lawful Money of England unto any party grieved his Executors or Administrators who shall really prosecute for the same and first obtain Judgment thereupon to be Recovered in any Court of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 2. And if any person against whom any such Judgment or Recovery shall be had as aforesaid shall after such Judgment or Recovery offend again in the same then he or they for such offence shall forfeit the Sum of one thousand pounds of lawful Money of England unto any party grieved his Executors or Administrators who shall really prosecute for the same and first obtain Judgment thereupon to be Recovered in any Court of Record at Westminster by Action of Dept Bill Plaint or Information in which no Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 3. And if any person against whom any such second Judgment or Recovery shall be had as aforesaid shall after such Judgment or Recovery offend again in the same kind and shall be thereof duly convicted by Indictment Information or any other lawful way or means that such person so convicted shall be from thenceforth disabled and become by virtue of this Act Incapable ipso facto to Bear his and their said Office and Offices Respectively 4. And shall be likewise disabled to make any Gift Grant Conveyance or other Disposition of any of his Lands Tenements Hereditaments Goods or Chattels or to take any Benefit of any Gift Conveyance or Legacy to his own use 7. And every Person so offending shall likewise forfeit and lose to the party grieved by any thing done contrary to the true intent and meaning of this Law his treble Damages which he shall sustain and be put unto by means or occasion of any such Act or thing done the same to be Recovered in any of His Majesties Courts of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 8. And be it also provided and Enacted That if any person shall hereafter be Committed Restrained of his Liberty or suffer Imprisonment by the Order or Decree of any such Court of Star-Chamber or other Court aforesaid now or at any time hereafter having or pretending to have the same or like Jurisdiction Power or Authority to Commit or Imprison as aforesaid 2. Or by the Command or Warrant of the King's Majesty His Heirs and Successors in their own Person or by the Command or Warrant of the Council-board or oâ— any of the Lords or others of His Majesties Privy Council 3. That in every such Case every person so Committed Restrained of his Liberty or suffering Imprisonment upon demand or motion made by his Council or other Imployed by him for that purpose unto the Judges of the Court of King's-Bench or Common-Pleas in open Court shall without delay upon any pretence whatsoever for the Ordinary Fees usually paid for the same have forthwith granted unto him a Writ of Habeas Corpus to be directed generally unto all and every Sheriffs Gaoler Minister Officer or other person in whose Custody the person Committed or Restrained shall be 4. And the Sheriffs Gaoler Minister Officer or other person in whose Custody the party so Committed or Restrained shall be shall at the Return of the said Writ and according to the command thereof upon due and convenient notice thereof given unto him at the Charge of the party who requireth or procureth such Writ and upon Security by his own Bond given to pay the Charge of carrying back the Prisoner if he shall be Remanded by the Court to which he shall be brought as in like cases hath been used such Charges of bringing up and carrying back the Prisoner to be alwaies Ordered by the Court if any difference shall arise thereabout bring or cause to be brought the Body of the said Party so Committed or Restrained unto and before the Judges or Justices of the said Court from whence the same Writ shall Issue in open Court 5. And shall then likewise certifie the true Cause of such his Detainour or Imprisonment and thereupon the Court within three Court-daies after such Return made and delivered in open Court shall proceed to Examine and Determine whether the Cause of such Commitment appearing upon the said Return be Just and Legal or not and shall thereupon do what to Justice shall appertain either by Delivering Bailing or Remanding the Prisoner 6. And if any thing shall be otherwise wilfully done or omitted to be done by any Judge Justice Officer or other Person aforementioned contrary to the direction and true meaning hereof then such person so offending shall forfeit to the party grieved his treble Damages to be Recovered by such means and in such manner as is formerly in this Act limited and appointed for the like penalty to be Sued for and Recovered 9. Provided alwayes and be it Enacted That this Act and the several Clauses therein contained shall be taken and Expounded to Extend only to the Court of Star-Chamber 2. And to the said Courts holden before the President and Council in the Marches of Wales 3. And before the President and Council in the Northern parts 4. And also to the Court commonly called the Court of the Dutchy of Lancaster holden before the Chancellor and Council of that Court 5. And also in the Court of Exchequer of the County Palatine of Chester held before the Chamberlain and Council of that Court 6. And to all Courts of like Jurisdiction to be hereafter Erected Ordained Constituted or Appointed as aforesaid and to the Warrants and Directions of the Council-board and to the Commitments Restraints and Imprisonments of any person or persons made commanded or awarded by the King's Majesty His Heirs or Successors in their own Person or by the Lords and others of the Privy-Council and every one of them And lastly Provided and be it Enacted That no person or persons shall be Sued Impleaded Molested or Troubled for any Offence against this present Act unless the party supposed to have so Offended shall be sued or Impleaded for the same within two years at the most after such time wherein the said Offence shall be committed The Comment THE Court of Star-Chamber so called because held in a Chamber at Westminster the Roof of which