God's People how they might be kept from Sin in quiet and have Right done them according to the Customs and Laws Nor did this Law end with the Saxon Race William the Conqueror as he is usually called quitting all claim by Conquest gladly stoopt to the Laws observed by the Saxon Kings and so became a King by Leave valuing a Title by Election before that which is founded in Power only He therefore at his Coronation made a solemn Covenant to maintain the good approv'd and ancient Laws of the Kingdom and to inhibit all Spoil and unjust Judgment And this Henry the first his third Son amongst others his Titles mentioned in his Charter to make Ely a Bishoprick calls himself Son of William the Great who by Hereditary Right succeeded King Edward call'd the Confessor in this Kingdom An ancient Chronicle of Leichfield speaks of a Council of Lords that advised William of Normandy To call together all the Nobles and Wise Men throughout their Counties of England that they might set down their own Laws and Customs which was about the fourth year of his Reign Which implies that they had Fundamental Laws and that he intended their Confirmation as followeth And one of the first Laws made by this King which as a notable Author saith may be called the first Magna Charta in the Norman Times by which he reserved to himself nothing of the Free-men of this Kingdom but their Free Service in the Conclusion of it saith that The Lands of the Inhabitants of this Kingdom were granted to them in Inheritance of the King and by the Common Council of the whole Kingdom which Law doth also provide That they shall hold their Lands and Tenements well or quietly and in Peace from all unjust Tax and Tillage which is further expounded in the Laws of Henry the first ch 4. That no Tribute or Tax should be taken but what was due in Edward the Confessor's Time So that the Norman Kings claim no other Right in the Lands and Possessions of any of their Subjects then according to English Law and Right And so tender were they of Property in those times that when Justice it self became importunate in a Case no Distress could issue without publick Warrant obtained nor that neither but upon Three Complaints first made Nay when Rape and Plunder was rife and men seem'd to have no more Right to their own then they had Power to maintain even then was this law sufficient Sanctuary to all Oppressed by being publickly pleaded at the Bar against all Usurpations though it were under the Pretence of their Conqueror's Right it self as by the Case of Edwin of Sharnbourn appears The like Obligation to maintain this Fundamental Law of Property with the appendent Rights of the People was taken by Rufus Henry the 1st Stephen Henry the 2d Richard the 1st John and Henry the 3d which brings me to that Famous Law called Magna Charta or The Great Charter of England of which more anon it being my Design to shew That nothing of the Essential Rights of English men was thereby de novo granted as in Civility to King Henry the third it is termed but that they are therein only repeated and confirmed Wherefore I shall return to antecedent Times tofetch down the remaining Rights The second part of this first Fundamental is Liberty of Person The Saxons were so tender in the point of Imprisonment that there was little or no use made of it nor would they so punish their Bond-men vinculis coercere rarum est In case of Debt or Dammage the Recovery thereof was either by a Delivery of the just Value in Goods or upon the Sheriffs Sale of the Goods in Money and if that satisfied not the Land was extended and when all was gone they were accustomed to make their last Seizure upon the Party's Arms and then he was reputed an Undone Man and cast upon the Charity of his Friends for Subsistence but his Person never imprison'd for the Dâ—bt no not in the King's Case And to the Honour of King Alfred be it spoaken He imprison'd one of his Judges for Imprisoning a Man in that Case And we find among his Laws this Passage Qui immerentem Paganum vinâ—ulâ—s 〈◊〉 striâ—xerâ—t decâ—m solidis noxam sarcito That if a Man should imprison a Pagan or Heathen unjustly his Purgation of that Offence should be no less then the Payment of Ten Shillings a Sum very considerable in those dayes Nor did the Revolution from Saxon to Norman drop this Priviledge for besides the general Confirmation of former Rights by William surnamed the Conqueror his Son Henry the first particularly took such Care of continuing this part of Property inviolable that in his Time no Person was to be imprison'd for committing of Mortal Crime it self unless he were first attainted by the Verdict of Twelve Men. Thus much for-the first of my Three Fundamentals Right of Estate and Liberty of Person that is to say I am no man's Bond-man and what I possess is inviolably mine own 2. A Voting of every Law that is made whereby that Ownership or Propriety may be maintained That the second Fundamental of our English Government was no Incroachment upon the Kings of more modern Ages but extant long before the great Charter made in the Reign of Hen. 3. even as early as the Brittains themselves and that it continued to the time of Hen. 3. I shall prove by several Instances Caesar in his Commentaries tells us That it was the Custom of the British Cities to Elect their General and if in War why not in Peace Dion assures us in the Life of Severus the Emperor That in Brittain the People held a Share in Power and Government which is the modestest Construction his words will bear And Tacitus saith They had a Common Council and that one great Reason of their Overthrow by the Romans was their not Consulting with and Relying upon their Common Council Again Both ad and Mat Westminster tell us That the Brittains summon'd a Synod chose their Moderator and expell'd the Pelagian Creed All which supposes popular assemblies with Power to order National Affairs And indeed the learned Author of the Brittish Councils gives some Hints to this Purpose That they had a Common Council and call'd it KYFR-Y-THEN The Saxons were not inferiour to the Brittains in this Point and Story furnisheth us with more and plainer Proofs They brought this Liberty along with them and it was not likely they should loose it by transporting themselves into a Country where they also found it Tacitus reports it to have been generally the German Liberty like unto the Concie of the Athenians and Lacedemonians They call their Free-men Frilingi and these had Votes in the Making and Executing the general Laws of the Kingdom In Ethelbert's time after Austin's Insinuations had made his Followers a Part of the Government the Commune Concilium was
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-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
tam Cleri quam Populi In Ina's time Suasu instituto Episcoporum omnium Senatorum natu majorum sapientum populi Alfred after him reform'd the former Laws consulto sapientum Likewise Matters of publick and general Charge in case of War c. we have granted in the Assembly Regi Baronibus Populo And though the Saxon Word properly imports the Meeting of Wise Men yet all that would come might be present and interpose their Like or Dislike of the present Proposition as that of Ina in magna servorum Dei frequentia Again Commune Concilium seniorum populorum totius regni the Common Council of the Elders and People of the whole Kingdom The Council of Winton Ann. 855. is said to be in the Presence of the Great Men aliorumque fidelium infinita multitudine an infinite multitude of other faithful People which was nigh Four Hundred Years before the Great Charter was made My last Instance of the Saxon Ages shall be out of the Glossery of the learned English Knight H. Spelman The Saxon Wittangemote or Parliament saith he is a Convention of the Princes as well Bishops as Magistrates and the free People of the Kingdom and that the said Wittangemote consulted of the common Safety in Peace and War and for the Promotion of the common Good William of Normandy chose rather to rely upon the Peoples Consent then his own Power to obtain the Kingdom He swore to them to maintain their old Laws and Priviledges they to him Obedience for his so governing of them for as a certain Author hath it He bound himself to be Just that he might be Great and the People to submit to Justice that they might be Free In his Laws c. 55. We by the Common Council of the whole Kingdom have granted the Peoples Lands to them in Inheritance according to their ANCIENT Laws Matters of general Charge upon the whole Body of the People were setled by this grand Council by the Commune Concilium especially in the Charge of Arms imposed upon the Subject The Law saith it to have been done by the common Council of the Kingdom So W. Rufus and Henry the First were received by the common Consent of the People And Stephen's Words were Ego Stephanus Dei gratia Assensu Cleri Populi in Regno Angliae electus c. I Stephen by the Grace of God and Consent of the Clergy and People chosen King of England c. So King John was chosen tam Cleri quam Populi unanimo consensu favore by the Favour and unanimous Consent of the Clergy and People And his Queen is said to have been crown'd de communi consensu concordi voluntate Archiepiscoporum Comitum Baronum Cleri Populi totius Regni i. e. by the common Assent and unanimous Good-Will of the Arch-Bishops Bishops Counts Barons Clergy and People of the whole Kingdom King Ed. 1 also desired Money of the commune Concilium or Parliament as they have given in my time and that of my Progenitors Kings All which shows that it was Antecedent to the Great Charter not the Rights therein repeated and confirmed but the Act it self And King John's Resignation of the Crown to the Pope being questiond upon some Occasion in Edward the 3d's Time it was agreed upon that he had no Power to do it without the Consent of the Dukes Prelates Barrons and Commons And as paradoxal as any may please to think it 't is the great Interest of a Prince that the People should have a share in the making of their own Laws where 't is otherwise they are no Kings of Free-men but Slaves and those their Enemies for making them so Leges nulla alia causa nos tenent quam quod judicio populi recepta sunt The Laws saith Ulpian do therefore obliege the People because they are allowed of by their Judgment And Gratian in Dec. distinct 4. Tum demum humanae leges habent vim suam cum fuerint non modo institutae sed etiam firmatae Approbatione Communitatis It is then saith he that human Laws have their due Force when they shall not only be devised but confirm'd by the Approbation of the People 1. It makes Men diligent and encreaseth Trade which advances the Revenue for where Men are not free they will never seek to improve because they are not sure of what they have 2. It frees the Prince from the Jealousie and Hate of his People and consequently the Troubles and Danger that follow and makes his Province easie and safe 3. If any Inconveniency attends the Execution of any Law the Prince is not to be blam'd 't is their own Fault that made at least consented to it I shall now proceed to the third Fundamental and by plain Evidence prove it to have been a material part of the Government before the Great Charter was enacted 3. The People have an Influence upon and a great Share in that Judicatory Power c. That it was a Brittish Custom I will not affirm but have some Reason to suppose for if the Saxons had brought it with them they would also have lest it behind them and in all likelyhood there would have been some Footsteps in Saxony of such a Law or Custom which we find not I will not enter the Lists with any about it This shall suffice that we find it early among the Saxons in this Country and if they a free People in their own Country setling themselves here as a new planted Colony did supply what was defective in their own Government or add some new Freedom to themselves as all Planters are wont to do which are as those first and Corner Stones their Posterity with all Care and Skill are to build upon that will serve my turn to prove it a Fundamental that is such a first Principle in our English Government by the Agreement of the People diffusively that it ought not to be violated I would not be understood of the Number but of the Way of Tryal that is to say that Men were not to be condemned but by the Votes of the Freemen N. Bacon thinks that in ruder times the multitude tryed all among themselves and fancyes it came from Graecians that determin'd Controversies by the Suffrage of 34 or the major part of them Be it as it will Juries the Saxons had for in the Laws of King Aetheldred about 300 Years before the Entrance of the Norman Duke we find enacted in singulis Centuriis c. thus Englisht In every Hundred let there be a Court and let twelve Ancient Free-men together with the Lord of the Hundred be sworn that they will not condemn the Innocent or acquit the Guilty And so strict were they of those Ages in observing this fundamental Way of Judicature that Alfred put one of his Judges to Death for passing Sentence upon a Verdict corruptly obtain'd upon the Votes of the Jurors three of twelve
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-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-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
its Creator so can there be No Representative without a People nor that People free which all along is intended as inherent to and inseparable from the English People without Freedom nor can there be any Freedom without something be Fundamental In short I would fain know of any Man how the Branches can cut up the Root of the Tree that bears them How any Representative that is not only a meer Trust to preserve Fundamentals the Peoples Inheritance but that is a Representative that makes Laws by Virtue of this Fundamental Law that the People hath a Power in Legislation the 2d Principle prov'd by me can have Power to remove or destroy that Fundamental The Fundamental makes the People free this free People make a Representative Can this Creature unqualifie its Creator What Spring ever rose higher then its Head The Representative is at best but a true Copy an Exemplification the free People are the Original not cancellable by a Transcript And if that Fundamental that gives to the People a Power of Legislation be not annullable by that Representative because it makes it what it is much less can that Representative disseize Men of their Liberty and Property the first Great Fundamental that is the Parent of this other which intitles to a Share in making Laws for the Preservation of the first inviolably Nor is the third other then the necessary Production of the two first to intercept Arbitrary Designs and make Power legal for where the People have not a Share in Judgment that is in the Application as well as making of the Law the other two are imperfect open to daily Invasion should it be our Infelicity to have a violent Prince for as Property is every day expos'd where those that have it are destitute of Power to hedge it about by Law-making so those that have both if they have not the Application of the Law but the Creatures of another Part of the Government how easily is that Hedge broken down And indeed as it is a most just and necessary as well as ancient and honourable Custom so it is the Princes Interest for still the People are concern'd in the Inconveniencies with him and he is freed from the Temptation of doing arbitrary Things and their Importunities that might else have some Pretence for such Adresses as well as from the Mischiefs that might ensue such Actions It might be enough to say that here are above 50 Statutes now in Print beside its venerable Antiquity that warrant and confirm this Legale judicium parium suorum or the Tryal of English Men by their Equals But I shall hint at a few Instances The first is The Earl of Lancaster in the 14th of Edw. 2. adjudged to dye without Lawful Tryal of his Peers and afterwards Henry Earl of Lancaster his Brother was restored the Reasons given were two 1. Because the said Thomas was not arraign'd and put to Answer 2. That he was put to Death without Answer or Lawful Judgment of his Peers The like Proceedings were in the Case of John of Gaunt p. 39. coram Rege And in the Earl of Arundel's Case Rot. Parl. 4 Edw. 3. n. 13. And in Sr. John Alce's Case 4 Edw. 3. n. 2. Such was the Destruction committed on the â—d Hastings in the Tower of London by Richard the 3d. But above all that Attainder of Thomas Cromwel Earl of Essex who was attainted of high Treason as appears Rot. Parl 32. Hen. 8. of which saith Chief Justice Cook as I remember Let Oblivion take away the Memory of so foul a Fact if it can if not however let Silence cover it 'T is true there was a Statute obtained in the 11th of Henry the 7th in Defiance of the Great Charter which authoriz'd several Exactions contrary to the free Customs of this Realm particularly in the Case of Juries both sessing and punishing by Justices of Assize and of the Peace without the fining and Presentment of 12 Free-men Empson and Dudley were the great Actors of those Oppressions but they were hang'd for their Pains and that illegal Statute repealed in the 1st of Henry the 8th c. 6. The Consequence is plain That Fundamentals give Rule to Acts of Parliament else why was the Statute of the 8th Edw. 4. c. 2. of Liveries and Information by the Discretion of the Judges to stand as an Original and this of the 11th of Henry the 7th repealed as illegal for therefore any Thing is unlawful because it transgresseth a Law But what Law can an Act of Parliament transgress but that which is Fundamental Therefore Tryal by Juries or Lawful Judgment of Equals is by Acts of Parliament confest to be a Fundamental Part of our Government And because Chief Justice Cook is generally esteem'd a great Oracle of Law I shall in its proper Place present you with his Judgment upon the whole Matter 5. These Fundamentals are unalterable by a Representative which were the Result and Agreement of English Free-men individually the ancienter Times not being acquainted with Representatives for then the Free-men met in their own Persons In all the Saxons Story we find no Mention of any such Thing for it was the King Lords and Free-men the Elders and People and at the Counsel of Winton in 855. is reported to have been present the Great Men of the Kingdom and an INFINIT MULTITUDE of other faithful People Also that of King Ina the common Council of the Elders PEOPLE of the WHOLE Kingdom It is not to be doubted but this continued after the Norman Times and that at Running Mead by Staâ—â—s the Freemen of England were personally present at the Confirmation of that great Charter in the Reign of King John But as the Ages grew more human with respect to Villains and Retainers and the Number of Free-men encreased there was a Necessity for a Representative especially since Fundamentals were long ago agreed upon and those Capital Priviledges put out of the Reach and Power of any litle Number of Men to endanger And so careful were their Representatives in the time of Edward the Third of suffering their Liberties and free Customs to be infring'd that in Matters of extraordinary Weight they would not determin till they had first return'd and conferr'd with their several Counties or Burroughs that delegated them Several Authorities in Confirmation of the Reasons So indubitably are these Fundamentals the Peoples Right and so necessary to be preserved that Kings have successively known no other safe or legal Passage to their Crown Dignity then their solemn Obligation inviolably to maintain them So sacred were they reputed in the Dayes of Henry the 3d that not to continue or confirm them were to affront God and damn the Souls of his Progenitors and Successors to Depress the Church and Deprave the Realm That the Great Charter comprehensive of them should be allow'd as the common Law of the Land by all Officers of Justice that is
Pretence to Mercy or Justice can the Protestant Church null the Romish that she may retain the English Part without conforming to Rome and yet now cancel the English Part it self to every free-born English Man that will not conform to Her But no more of this at this Time only give me leave to remind a Sort of active Men in our Times that the cruel Infringers of the Peoples Liberties and Violaters of these Noble Laws did not escape with bare Excommunications and Gurses for such was the venerable Esteem our Ancestors had for these great Priviledges and deep Sollicitude to preserve them from the Defacings of Time or Usurpation of Power that King Alfred executed 40 Judges for warping from the ancient Laws of the Realm Hubert de Burgo Chief Justice of England in the Time of Edw. 1. was sentenced by his Peers in open Parliament for advising the King against the Great Charter Thus Spencers both Father and Son for their Arbitrary Rule and Evil Counsel to Edw. 2. were exiled the Realm No better Success had the Actions of Tresilian Belknap And as for Empson and Dudley though Persons of some Quality in the Time of King Henry the 7th the most ignominious Death of our Country such as belongs to Theft and Murder was scarce Satisfaction enough to the Kingdom for their Illegal Courses I shall chuse to deliver it in the Words of Chief Justice Cook a Man whose Learning in Law hath not without Reason obtained a venerable Character of our English Nation There was saith he an Act of Parliament made in the 11th Year of King Hen. 7. which had a fair flattering Preamble pretending to avoid divers Mischiefs which were 1st To the high Dispicasurs of Almighty God 2dly The great Let of the Common Law And 3dly The great Let of the Wealth of this Land And the Purven of that Act tended in the Execution contrary EX DIAMETRO viz. To the high Displeasure of Almighty God and the great Let nay the utter Subversion of the Common Law and the great Let of the Wealth of this Land as hereafter shall appear the Substance of which Act follows in these Words THat from thenceforth as well Justices of Assizs as Justices of the Peace in every County upon Information for the King before them made without any Finding or Presentment by Twelve Men shall have full Power and Authority by their Discretion and to hear and determine all Offences as Riots unlawful Assemblies c. committed and done against any Act or Statute made and not repeal'd c. By Pretext of this Law Empson and Dudley did commit upon the Subjects insufferable Pressure and Oppressions and therefore this Statute was justly soon after the Decease of Hen. 7. repealed at the next Parliament by the Statute of 1 Hen. the 8. chap. 6. A good Caveat to Parliaments to leave all Causes to be measur'd by the Golden and strait Metwand of the Law and not to the incertain and crooked Cord of Discretion It is almost incredible to foresee when any Maxim or Fundamental Law of this Realm is altered as elsewhere hath been observed what dangerous Inconveniencies do follow which most expresly appears by this MOST UNJUST and strange Act of the 11th of Hen. 7. For hereby not only Empson and Dudley themselves but such Justices of Peace corrupt Men as they caused to be authorised committed most grievous and heavy Oppressions Exactions grinding the Faces of the poor Subjects by penal Laws be they never so obsolete or unfit for the Time by Information only without any Presentment or Tryal by Jery being the ANCIENT BIRTH RIGHT of the Subject but to hear and determine the same by their Discretions inflicting such Penalty as the Statute not repealed imposed These and other like Oppressions and Exactions by the Means of Empson and Dudley and their Instruments brought infinite Treasure to the King's Coffers whereof the King himself at the End with GREAT GRIEF and COMPUNCTION REPENTED as in another Place we have observ'd This Statute of the 11th of Hen. 7. we have recited and shewed the just Inconveniencies thereof to the End that the like should NEVER hereafter be attempted in any Court of Parliament and that others might avoid the FEARFUL END of those two Time-Servers Empson and Dudley Qui eorum vâ—â—â—igiis insistant exitus perhorrescant I am sure there is nothing I have offer'd in Defence of English-Law Doctrine that riseth higher then the Judgment and Language of this great Man the Preservation and Publication of whose Endeavours became the Care of a great Parliament And it is said of no inconsiderable Lawyer that he should thus express himself in our Occasion viz. The Laws of England were never the Dictates of any Conqueror's Sword or the Placita of any King of this Nation or saith he to speak impartially and freely the Results of any Parliament that ever sate in this Land Thus much of the Nature of English Rights and the Reason and Justice of their inviolable Maintenance I shall now offer some more general Considerations for the Preservation of Property and hint at some of those Mischiefs that follow spoiling it for Conscience sake both to Prince and People 1. The Reason of the alteration of any Law ought to be the Discommodity of Continuing it but there can never be so much as the least Inconveniency in continuing of Liberty and Property therefore there can be no just Ground for infringing much less abrogating the Law that gives and secures them 2. No Man in these Parts is born Slave to another neither hath one Right to inherit the Sweat of the others Brow or reap the Benefit of the others Labour but by Consent therefore no Man should be deprived of Property unless he injure another Man's 3. But certainly nothing is more unreasonable then to sacrifice the Liberty and Property of any Man being his Natural and Civil Rights for Religion where he is not found breaking any Law relating to Natural Civil Things Religion under any Modification is no Part of the old English Government Honeste vivere alterum non ladere jus suum cuique tribeure are enough to entitle every Native to English Priviledges A Man may be a very good English Man and yet a very indifferent Church-man Nigh 300 Years before Austine set his Foot on English Ground had the Inhabitants of this Island a free Government It is Want of distinguishing between It and the Modes of Religion which fills every Clamorous Mouth with such impertinent Cryes as this Why do not you submit to the Government as if the English Civil Government came in with Luther or were to go out with Calvin What Prejudice is it for a Popish Landlord to have a Protestant Tennant or a Presbyterian Tennant to have a Protestant Landlord Certainly the Civil Affairs of all Governments in the World may be peaceably transacted under the different Trims of Religion where Civil Rights are inviolably observ'd Nor is there any
no prudent Ground assure himself of their Fidelity whom he hath taught to be Treacherous to their own Convictions Wise Men rarely confide in those whom they have debaucht from Trust to serve themselves At best it resembleth but forc'd Marriages that seldom prove happy to the Parties In short Force makes Hypocrites 't is Perswasion only that makes Converts Fifthly This Partiality of sacrificing the Liberty and Property of all Dissenters to the Promotion of a single Party as it is the lively Representation of J. Calvin's Horrendum Decretum of Predestination so the Consequences of the one belong unto the other it being but that Ill-natured Principle practised Men are put upon the same desperate Courses either to have no Conscience at all or to be Hang'd for having a Conscience not fashionable for let them be Virtuous let them be Vitious if they fall not in with that Mode of Religion they must be reprobated to all Civil and Ecclesiastical Intents and Purposes Strange that men must either Deny their Faith and Reason or be destroyed for acting according to them be they otherwise never so Peaceable What Power is this But that men are to be protected upon Favour not Right or Merit and that no Merit out of the English Church-Dress should find Acceptance is severe That Father we justly blame that narrows his Paternal Love to some one of his Children though the rest be not one jot less Virtuous then the Favouriter Such Injustice can never flow from a Soul acted by Reason but a Mind govern'd by Fancy and enslaved to Passions Sixthly consider Peace Plenty and Safety the three grand Inducements to any Country to honour the Prince and love the Government and the best Allurements to Forreigners to trade with it and transport themselves to it are utterly lost by such Intestine Jars for instead of Peace Love and good Neighbourhood behold Animosity and Contest One Neighbour watcheth another and makes him an Offender for his Conscience this divides them their Families and Acquaintance Perhaps with them the Towns and Villages where they live most commonly the Sufferer hath the Pitty and the Persecutor the Odium of the Multitude and when People see Cruelty practised upon their Inoffensive Neighbours by a Troublesom Sort of Men and those countenanced by a Law it breedeth Ill Blood against the Government Certainly haling People to Goals breaking open their Houses seizing of their Estates and that without all Proportion leaving Wives without their Husbands and Children without their Fathers their Families Relations Friends and Neighbours under Amaze and Trouble is almost as far from the Peace of a well-govern'd Kingdom as it is from the Meekness of Christianity Plenty will be hereby exchanged for Poverty by the Destruction of many Thousand Families within this Realm who are greatly Instrumental for the carrying on of the most Substantial Commerce therein Men of Virtue good Contrivance great Industry whose Labours not only keep the Parishes from the Trouble Charge of maintaining them and theirs but help to maintain the Poor and are great Contributors to the Kings Revenue by their Traffick I his very Severity will make more Bankrupts in the Kingdom of England in 7 Years then have been in it upon all other Accounts in 7 Ages which Consequence how far it may consist with the Credit Interest of the Government I leave to better Judgments This Sort of great Severity that hath been lately and still is used amongst us is like to prove a great Check to that Readiness which otherwise we find in Forreigners to trade with the Inhabitants of this Kingdom for if Men cannot call any Thing their own under a different Exercise of Conscience from the National Way of Religion may their Correspondents prudently say We will not further concern our selves with Men that stand upon such tickling Terms what know we but such Persons are ruin'd in their Estates by Reason of their Non-Conformity before such Time as we are reimburst for Money paid or Goods delivered Nay we know not how soon those who are Conformists may be Non-Conformists or what Revolution of Councils may happen since the Fundamental Laws so jealous of the Peoples Property are so little set by with some of their own Magistrates for though we are told of very worthy and excellent Laws for the Security of the Peoples Rights yet we are also told that they all hang at the Churches Ear and no Church-Conformity no Property which is no Church-Man no English-Man so that in Effect the Rights of their Country depend upon the Rights of their Church and those Churches are so numerous and have taken their Turns so often that a Body knows not how to mannage one's self securely to one 's own Affairs in a Correspondence with any of them For in King Henry the eight's Dayes Popery was the only Orthodox Religion and Luther Melanchton Oecolampadius Calvin c. were great Hereticks In Edward the sixth's Time they were Saints and Popery Idolatry A few Years after Q Mary makes the Papists Holy Church and Protestancy Heresie About six Years complcats her Time and Q. Elizabeth enters her Reign in which Protestants are good Christians and the Church of Rome the Whore of Babylon In her Reign and King James ' s and Charles the first 's sprung the Puritans who divided themselves into Presbyterians and Independents the Bishops exclaimed against them for Schismaticks and they against the Bishops for Papistical and Anti christian In the long Parliament's Time the Presbyterian drives out the Bishop O. Cromwel defeating them and sending the Presbyterian to keep Company with the Bishop confers it mostly upon the Independent and Anabaptist who kept it through the other Fractions of Government till the Presbyter and Bishop got it from them and the Bishop now from the Presbyter but how long it will rest there who knows Nor is my Supposition idle or improbable unless Moderation take Place of Severity and Property the room of Punishment of Opinion for that must be the lasting Security as well as that it is the Fundamental Right of English People There is also a further Consideration and that is the rendering just and very good Debts desperate both at home and abroad by giving Opportunity to the Debtors of Dissenters to detain their Dues Indeed it seems a natural Consequence with all but Men of Mercy and Integrity What should we pay them for may they say that are not in a Capacity to demand or receive it at least to compel us Nay they may plead a sort of Kindness to their Creditors and say We had as good keep it for if we pay it them they will soon loose it 't is better to remain with us then that they should be pillag'd of it by Informers though Beggary and Want should in the mean time overtake the right Owners and their Families Nor is it unworthy of the most deliberate Thoughts of our Superiours that the Land already swarms with Beggars and that there
things for their Country And if we had no other Instance then our own Intervals of Connivance they were enough to satisfie reasonable men how much more Moderation contributes to publick Good then the Prosecution of People for their Religious Dissent since the one hath ever produced Trade and Tranquillity the other greater Poverty and Dissension The second Objection and by far the more weighty runs thus Obj. The King and Parliament are sworn to maintain and protect the Church of England as establisht c. therefore to tolerate other Opinions is against their Oath Answ Were the Consequence true as it is extreamly false it were highly unreasonable to expect Impossibilities at their Hands Kings and Parliaments can no more make Brick without Straw then Captives They have not sworn to do things beyond their Ability Had it been in His and their Time and Choice when the Church of England had been first disturbed with dissenting Opinions it might have reflected more colourably a kind of Neglect upon them But since the Church of England was no sooner a Church then she found some sort of Dissenters and that the utmost Policy and Severity of Q. Elizabeth King James and King Charles the 1st were not successful towards an absolute Uniformity Why should it reflect upon them that the Church of England hath not yet rid her self of Dissenting Parties Besides it is Notorious that the late Wars gave that Opportunity to Differing Perswasions to spread that it was utterly impossible for them to hinder much less during the several Years of the King's Exile at what time the present Parliament was no Parliament nor the generality of the Members of it scarce of any Authority Let it be considered that 't was the Study of the Age to make People Anti-Papistical and Anti-Episcopal and that Power and Preferment went on that side Their Circumstances therefore and their Ancestors are not the same They find the Kingdom Divided into several Interests and it seems a Difficulty insurmountable to reduce them to any one Perswasion wherefore to render themselves Masters of their Affections they must necessarily govern themselves towards them on a Ballance as before exprest otherwise they are put upon the greatest Hazards and extreamest Difficulties to themselves and the Kingdom and all to perform the Uncharitable Office of suppressing many Thousands of Inoffensive Inhabitants for the different Exercise of their Conscience to God This is not to make them resemble Almighty God the Goodness of whose Nature extends it self universally thus to narrow his Bowels and confine his Clemency to one single Party of Men It ought to be remembred that Optimus went before Maximus of old and that Power without Goodness is a frightful Sort of a Thing But Secondly I deny the Consequence viz. That the King is therefore oblieged to persecute Dissenters because he or the Parliament hath taken an Oath to maintain the Church of England For it cannot be supposed or intended that by maintaining Her they are to destroy the Rest of the Inhabitants Is it impossible to protect her without knocking all the rest on the Head Do they allow any to Supplant her Officers Invade her Livings Possess her Emoluments Exercise her Authority What would she have Is she not Church of England still in the same Regency invested with the same Power bearing the same Character What Grandeur or Interest hath she lost by them Are they not manifestly her Protector Is she not National Church still And are not the greatest Offices Civil Military and Maritin conferr'd upon her Sons And can any of her Children be so insensible as either to challenge her Superiours with Want of Integrity because they had not performed Impossibilities or to excite them to that Harshness which is not only destructive of many Thousands of Inhabitants but altogether injurious to their own Interest and dishonourable to a Protestant Church Suppose Dissenters not to be of the visible Church are they therefore unfit to live Did the Jews treat Strangers so severely that had so much more to say then her self Is not the King Lord of Wastes and Commons as well as Inclosures Suppose God hath elected some to Salvation doth it therefore follow he hath reprobated all the rest And because he was God of the Jews was he not therefore God of the Gentiles or were not the Gentiles his People because the Jews were his peculiar People To be brief They have answer'd their Obligation consented to severe Laws and commanded their Execution in that they have still preferr'd her above Every Interest in England to render her more Powerful and Universal till they have good Reason to be tired with the Lamentable Consequences of those Endeavours and to conclude that the Uniformity thereby intended is a thing Impracticable And I wonder that these men should so easily forget that great Saying of King CHARLES the 1st whom they pretended so often and with so much Honour to remember in his Advice to the present King where he saith Beware of Exasperating any Factions by the Crossness and Asperity of some Mens Passions Humours or Private Opinions imployed by You grounded only upon their Differences in Lesser Matters which are but the Skirts and Suburbs of Religion wherein a Charitable Connivance and Christain Toleration often Dissipates their Strength whom Rougher Opposition Fortifieth and puts the Despised and Oppressed Party into such Combinations as may most Enable them to get a Full Revenge upon Those they count their Persecutors who are commonly Assisted with that Vulgar Commiseration which attends all that are said to Suffer under the Common Notion of Religion So that we have not only the King's Circumstances but his Father's Counsel who saw not the End of one half of them defending a Charitable Connivance and Christian Toleration of Dissenters Obj. 3. But it may be further alledged This makes way for Popery or Presbytery to undermine the Church of England and mount the Chair of Power and Preferment which is more then a Prudential Indulgence of Different Opinions And yet there is not any so probable an expedient to vanish those Fears and prevent any such Design as keeping all Interests upon the Ballance for so the Protestant makes at least six Parties against Popery and the Church of England at least five against Presbytery and how either of them should be able to turn the Scale against five or six as free and thriving Interests as either of them can pretend to be I confess I cannot understand But if one only Interest must be tolerated which implies a Resolution to suppress the Rest plain it is that the Church of England ventures her single Party against six growing Interest and thereby gives Preshytery and Popery by far an easier Access to Supremacy especially the latter for that it is the Religion of those Parts of Europ which neither want Inclination nor Ability to prosper it So that besides the Consistency of such an Indulgence with the Nature of a Christian-Church there