him or to deliver him if he be apprehended only this must be within a Year after his Appeal that it may appear to the Court he hath not deserted his Appeal you may find forms of such a Supersedeas also in the Register of Original Writs both these are founded upon excellent Reason The Law of England will not suffer Ecclesiastical Judges either to invade their Right or to exalt themselves against their Authority nor yet suffer Inferiour Ecclesiastical Courts to invade the Right Power and Authority of Superiour Courts in their own Order 3 If a Person be sued in the Ecclesiastical Courts for a matter not within their Jurisdiction and they have caught him upon contempt in not appearing or not obeying their Sentence Upon a suggestion to the Kings Courts if it appear to them that the Original matter was not cognoscible in the Ecclesiastical Courts they will supersed the Proceedings and order the imprisoned Person to be discharged 4. If the imprisoned Person or he against whom the Writ is out though he be not taken bring a Copy of the Bishops Significavit into the Courts at Westminster and make it appear to the Judges there that the cause of Excommunication is not therein expressed together with the day when it was pronounced if he be not said to be excommunicated Majori Excommunicatione if it be not signed by the Bishop or said to be done Authoritate nostra ordinaria if the Party Excommunioated be not expressed by name the Court will deliver the person Dr. Cozens mentions three of these cases and the Reader also may find them in the Register of Writs The first he saith he cannot find in the Register viz. That the Articles or matter of the Libel must be expressed nor indeed do I find it there but it is in several Reports The reasons are 1. Because the Law will not suffer men to be imprisoned for every light offence this Dr. Cozens gives 2. Because the Kings Courts can recieve Significavits from none but the person to whom if need be they may write to discharge the Prisoner Nor will the Court suffer a person to be Excommunicated and lye in Prison for a Crime which the Ecclesiastical Court hath no judgment in nor yet unless it appeareth to the Court he hath stood Forty dayes excommunicated Again heretofore whole Cities and Communities have been excommunicated therefore the person must be expressed by name or he shall not lie there 5. Let him procure the Copy of the Writ de Excommunicato Capiendo and observe first if it be issued in Term-time 2. If there were full twenty days betwixt the Test and Return 3. If it be made Returnable the next Term. 4. If there be due Additions in it 5. If before it was delivered to the Sheriff it were Entered upon Record in the Kings-Bench and made Returnable into that Court. All these things are Required by the statute 5 Eiz 23 If any of these Errours be found he shall upon motion in the Kings Bench be discharged and the Writ will be declared Illegal Lastly If he can be delivered by none of these ways he may at any Sealing in the Chancery whether it be in Term or out of Term upon a petition to or motion before the L. Chancellor have the VVrit de Cautione Admittenda granted him in case he hath before offered the Bishop a Bond of 10. l or 20 l. with Sureties stare parere mandatis Ecclesiae in forma Juris when he hath it let him by some Attorney or Attorneys Clerk send it and tender a Bond and Sufficient Sureties with it to the Bishop and demand the Discharge of the Prisoner If it be not presently done let him certifie so much and at the next Seal move for a second Writ to the Bishop or which it may be is more adviseable let him move for a second Writ to the Sheriff the form of it is in the Register In that the King commandeth the Sheriff to admonish the Bishop to accept the Caution to deliver the Prisoner and further commands him that in case he doth it not in his presence the Sheriff should do it himself If the Sheriff yields not Obedience upon another Motion he ought to have a Writ to the Coroners commanding to take security of the Sheriff to appear at Westminster such a day to shew reason why he hath contemned the Kings Writ and further it commandeth the Coroners to take the Caution of the Prisoner and to deliver him The Reader may find all this in the Register where are the Forms of all these Writs and also in Dr. Cozens Apology p. 1. C. 2. who being himself a Judge in the Ecclesiastical Courts cannot be presumed to have told us any thing but what is Law contrary to their own Interest It is true the Bishop upon taking such Cautionary Bonds doth ordinarily Insist upon the persons paying the Prosecutors charges but it is unreasonable 1. Because he hath nothing to do but to Execute the Command of the Writ which speaks not a word of charges 2. Because if the charges be legally due the Promoter must have also a legal way to Recover them if not it is Extortion for the Ecclesiastical Judge to Exact them 3. Because it is no sufficient Return to the King 's Writ which mentioneth no such thing to say He could not discharge the Prisoner because he would not pay the Promoter's Charge But because the Legal Charges are small usually the Prisoner for his Liberty will pay the charges which are as follow  l. s. d. For the Adversary's Proctor every Court-day until he was Excommunicated and that day when the Significavit was decreed For every day 00 01 00 For the Proctor's Procuratory Letter Seal and VVax 00 01 08 For certifying the Service of the Citation 00 00 06 For the Articles if there were any 00 05 00 For an Act of Court for every day 00 00 02 For the Significavit 00 05 00 For the Significavit to deliver the Prisoner 00 05 00 For the Excommunication and the Schedule 00 02 04 For the VVrit de Excommunicato Capiendo and the charge of Entring it upon record in the King's-Bench about 01 01 00  02 01 08 If the business have proceeded no further than a Libel and Articles this is all the Legal Charges but if it hath proceeded further there may be for the Copy of the Answer 00 00 09 For every Witness Examined 1 s. and for the first 00 01 06 For a Fee to the Proctor at Inform. 00 03 00 For a Definitive Sentence 00 11 00 For the Advocate at the Sentence 00 10 00 But note the Charges are more or less as the Cause went further or lesser way before the Excommunication But if the Bishop will not take the Caution and discharge you you may have a second Writ directed to the High-Sheriff commanding him to go to the Bishop and require him to take the Caution and to deliver the Prisoner and
is garnisht with Golden Stars was not originally Erected but confirmed and establisht by the Stat. of the 3 H. 7. Ca. 1. For there had before been some such Jurisdiction as Cook observes 4. Instit fo 62. yet there is reason to believe That it grew up rather by Connivance and Usurpation than any due course of Law The Crimes it pretended to punish were the Exorbitant Offences of Great Men whom Inferiour Judges and Jurors though they should not would in respect of their Greatness be afraid to offend Bribery Extortion Maintenance Champerty Imbracery Forgery Perjury Libelling Challenges Duels c. Their proceedings were by English Bill and Process under the Great Seal and the punishments by them Inflicted were Fines Imprisonment Pillory Cutting off Ears c. But whatever pretences there were for the setting up this Court at first 't is certain it was made use of as a property of Arbitrary Power to Crush any whom the Ruling Ministers and Favourites had a mind to destroy and indeed there were Three things in the very nature of this Court which were destructive to the Original Constitution of our English Government and Liberties 1. They proceeded without Juries 2. They pretended to a Power to Examine men upon their Oaths touching Crimes by them supposed to be committed which is contrary to all Law and Reason For Nemo tenetur seipsum Accusare No man is bound to accuse himself 3. The Judges of this Court proceeded by no known Law or Rules but were left at Liberty to Act Arbitrarily and according to their own pleasures whereas the Law of Engl. hates to leave to any such an unlimited Power but as it marks out the several species of Crimes such or such an Act shall be Treason this Felony that petty Larceny c. So it awards certain and positive punishments proportionate to each of them Therefore this Court being found a Grievance to the Subject was by this Act dissolved and taken away And to the intent nothing of the like kind should by any other name be practised for the future it is Declared and Enacted That the King and His Privy Council shall not question or dispose of the Lands or Goods of any Subjects And if they do each Privy Counsellor or present forfeits 500l to the party grieved A Clause in the Act of 31. Car. 2. C. 1. Whereas by the Laws and Customs of this Realm the Inhabitants thereof cannot be compelled against their wills to receive Souldiers into their Houses and to sojourn them there Be it Declared and Enacted by the Authority aforesaid That no Officer Military or Civil nor any other person whatever shall from henceforth presume to Place Quarter or Billet any Souldier or Souldiers upon any Subject or Inhabitant of this Realm of any degree quality or profession whatever without his consent And that it shall and may be lawful for every such Subject and Inhabitant to refuse to Sojourn or Quarter any Souldier or Souldiers notwithstanding any Command Order Warrant or Billeting whatever HAVING thus recited several of the most material Statutes provided by the care and wisdom of our Ancestors and prudent Legislators for the Guarding and Securing our English Liberties I shall now for the Reader 's Information proceed to add certain other Laws of another nature And first give the Reader all the Statutes at this day in force against Protestant Dissenters upon the account of Religion And secondly an Abstract of all the Laws against Papists And in order to the first of these we begin with a Statute touching the Writ De Excommunicato Capiendo upon which many people have been prosecuted Which Act is as followeth Anno Quinto Reginae Elizabethae Ca. 23. An Act for the due Execution of the Writ De Excommunicato capiendo FOrasmuch as divers persons offending in many great Crimes and Offences appertaining meerly to the Jurisdiction and Determination of the Ecclesiastical Courts and Judges of this Realm are many times unpunished for lack and want of the good and due Execution of the Writ de Excommunicato Capiendo directed to the Sheriff of any County for the taking and apprehending of any such Offenders 2. The great abuse whereof as it should seem hath grown for that the said Writ is not Returnable in any Court that might have the Judgment of the well Executing and serving of the said Writ according to the Contents thereof 3. But hitherto have been left only to the discretion of the Sheriffs and their Deputies by whose Negligences and Defaults for the most part the said Writ is not Executed upon the Offenders as it ought to be 4. By reason whereof such Offenders be greatly encouraged to continue their sinful and criminous Life much to the displeasure of Almighty God and to the great contempt of the Ecclesiastical Laws of this Realm 2. Wherefore for the redress thereof be it enacted by the Queens Most Excellent Majesty with the assent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same That from and after the first day of May next coming every Writ of Excommunicato Capiendo that shall be granted and Awarded out of the high Court of Chancery against any person or persons within the Realm of England shall be made in the time of the Term 2. And Returnable before the Queen's Highness Her Heirs and Successors in the Court commonly called the King's Bench in the Term next after the Teste of the same Writ 3. and the same writ shall be made to contain at the least twenty days between the Teste and the Return thereof 4. And after the same writ shall be so made and sealed that then the said Writ shall be forthwith brought into the said Court of King's Bench and there in the presence of the Justices shall be opened and delivered of Record to the Sheriffs or other officer to whom the serving and Execution thereof shall appertain or to his or their Deputy or Deputies 5. And if afterward it shall or may appear to the Justices of the same Court for the time being that the same writ so delivered of Record be not duty returned before them at the day of the return thereof or that any other Default or Negligence hath been used or bad in the not well serving and Executing of the said Writ that then the Justices of the said Court shall and may by Authority of this Act Assess such Amerciament upon the said Sheriff or other Officer in whom such Default shall appear as to the discretion of the said Justices shall be thought meet and convenient which Amerciament so Assessed shall be Estreated into the Court of Exchequer as other Amerciaments have been used 3. And he it further Enacted by the Authority aforesaid That the Sheriff or other Officer to whom such writ of Excommunicato Capiendo or other Process by virtue of this Act shall be directed shall not in any wise be compelled to bring the
shall be tryed for any Offence against this Act by his Peers but if Convicted shall be disabled to sit in Parliament during Life And thus much for what is Treason at this day By the Statute of 1 and 2 Phil. and Mar. cap 10. All Trials for Treason shall be only according to the Course of the Common Law And though the greater part of that Statute being Temporary be expired yet this Clause is still in Force The Judgment in all Cases of High Treason except for Counterfeiting Coin for a man is That he shall be drawn on an Hurdle or Sledge to the place of Execution and there be Hanged by the Neck to be cut down being yet alive his Privy Members cut off his Bowels ript up taken out and burnt before his face his Headsevered from his Body his Body divided into four Quarters which are to be disposed of as the King shall order But for Counterfeiting Coin only Drawn and Hanged And in both Cases for a Woman for Modesty sake it is only that she shall be Burnt The reasons or signification of this horrid Judgment on a man for Treason are thus by some rendred and Interpreted 1. He is drawn on a Sledg or Hurdle on the ground in the Dirt to shew that his Pride is brought down for Treason commonly springs from Ambition 2. On this Hurdle he is drawn backward to shew that his Actings have been contrary to Order unnatural and Preposterous 3. He is Hanged between Heaven and Earth as unworthy of either 4. He is cut down yet alive and his Privities cut off to shew that he was unfit to Propagate any Posterity 5. His Head is severed from his Body because his mischevious Brain contrived the Treason 6. His Body is divided to shew that all his Machinations and Devices are torn to pieces and brought to nought and into four parts that they may be scattered towards the four Quarters of the World Heading being part of the judgment in Treason the King commonly to persons of Quality Pardons all the rest of the Sentence and so they are only Beheaded But if a person be Attainted of Murder or any other Felony if he be Beheaded 't is no Execution of the Judgment because there the Judgment always is that he be Hanged till he be dead which cannot be altered So that had Count Conning smark lately been Convicted and Condemned for the Murder of Esquire Thynn all his Guinies or his Friends could not have preserved him from the Gallows unless they could have got an intire Pardon Any person being Indicted for Treason may Challenge that is except against or refuse Five and Thirty Jurors peremptorily that is for his pleasure or for reasons best known to himself and without assigning any Cause to the Court But if he Challenge more that is above three full Juries he Forseits his Goods and Judgment of Peinfort dure that is of being pressed to Death shall pass upon him as one that refuseth the Trial of the Law In Cases of Murder and Felony a man cannot Challenge peremptorily above the number of Twenty But with Cause he may except against more And this is by the Stat. of 22. H. 8. cap. 14. And certainly since the Law of England which is a Law of Mercy does in Favour of Life not only order a man to be Tryed by a Jury of his Country and Equals but also allows him to refuse and have Liberty of excepting against so many of those as shall be Impanelled for that purpose It cannot be supposed that the same Law ever intended that the Prisoner should be denyed a Copy of the Pannel of his Jury that so by the Information of his Friends or otherwise he may know their Qualities Circumstances and Inchnations for how else shall he know whom to Challenge peremptorily and whom to Challenge with Cause to allow a man such Liberty of Challenge and give him no opportunity of such Inquiry is but to mock the Prisoner to whom possibly the whole Jury by face and name may be utter Strangers and sure the wisdom of our Laws never thought every Prisoner so skilled in Metoposcopy that meerly by looking on a parcel of men he could tell which of them were indifferent and which biassed against him Another Statute of King Edward the third Anno 2. Edw. 3. cap. 2. In what Cases only Pardon of Felony shall be granted c. ITem Whereas Offendors have been greatly encouraged because the Charters of Pardon have been so easily granted in times past of Man-slaughters Roberies Felonies and other Trespasses against the Peace 2 It is ordained and Enacted that such Charters shall not be granted but only where the King may do it by his Oath that is to say where a man slayeth another in his own Defence or by Misfortune 3 And also they have been encouraged because that the Justices of the Goal-Delivery and of Oyer and Terminer have been procured by great men against the Form of the Statute made in the 27th year of the Reign of King Edward Grandfather to our Lord the King that now is wherein is Contained that Justices Assigned to take Assizes if they be Lay-Men shall make deliverance and if the one be a Clerk and the other a Lay-man that the Lay-Judge with another of the Countrey associate to him shall deliver the Goals 4 Wherefore it is Enacted that Justices shall not be made against the Form of the said Statute 5 And that the Assizes Attaints and Certifications be taken before the Justices commonly Assigned which should be good men and Lawful having knowledg of the Law and none other after the Form if another Statute made in the time of the said King Edward the first 6 And that the Oyers and Terminers shall not be granted but before the Justices of the one Bench or the other or the Justices Errants and that great hurt or horrible Trespasses and of the Kings special Grace after the Form of the Sâ—atute thereof ordained in time of the said Grandfather and none otherwise The Comment Touching this Statute and several others to the same purpose as 14. Edw. 3. cap. 14. and 10. Edw. 3. cap. 2. and 13. R. 2. cap. 1. and 16. R. cap. 6. c. We shall only give you the words of Cook in the third part of his Instit fo 236. What things the King may pardon and in what manner and what he cannot pardon falleth now to be treated of IN case of death of man Robberies and Felonies against the Peace divers Acts of Parliament have Restrained the power of granting Charters of pardons first that no such Charters shall be granted but in case where the King may do it by his Oath Secondly That no man shall obtain Charters out of Parliament Stat. 4. Edw 3. cap 13. And accordingly in a Parliament Roll it is said for the Peace of the Land it would much help if good Justices were appointed in every County if such as be let to mainprize do put
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
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
said Courts are to make out process for Levying the Twelve pences which shall be Levied by the Church-Wardens for the use of the poor However there being 52 Sundaies and 29 Holy-daies appointed by our Liturgy to be observed in the year the Constant charge by this statute for not coming to Church would be but 4l 1s p. An. And yet by the way Note That We have more Holy-daies or Feasts to be observed since his Majesties Restauration than ever the Church of England owned before For there were antiently but 27. But upon the Review of the Book of Common prayer my Lords the Bishops were pleased to add 2 New ones viz. The Conversion of St. Paul and St. Barnabas and whereas in our old Common-prayer-Books 't is said The Feast of St. Michael the Arch-Angel in our present Books 't is St. Michael and all Angels Which seems an Affront to S. Michael at once to leave out his Title of Arch-Angel and at the same time bring in all other Angels as well of the lower as Higher Hierarchies to share with him in a Festival the Honour of which he had enjoyed so long solely and Intire to himself but this by the by So that upon the whole matter If any body should be busy to Execute this Act upon the Protestant dissenters from the Established Church of England yet considering the trouble of such a Conviction and the difficulty of proving a Negative viz. that a man was not at Church for note the words are shall repair to his own Parish Church or to some usual place where Common Prayer shall be used So that if he were at Mr. Read's Meeting-House I Conceive he were safe from this Act. All this I say Considered the Labour would be more than the trouble therefore let 's proceed 2. The second Act of this kind is 23 Eliz. Cap. 1. Intituled An Act to Retain the Queens Majesties Subjects in their due Obedience And by this to Reconcile any or for any to be Reconciled to the See of Rome To with-draw or be with-drawn from the Establisht Religion to the Romish Religion Is made High-Treason And that every one saying Mass shall forfeit 200 Marks and every one that hears it 100 Marks And every one above 16. years old not repairing to some Church or Chappel but forbearing the same contrary to the said Stat. 1. Eliz. C. 2. shall being lawfully Convicted forfeit 20 l. for every month And the Justices at the Quarter Sessions are Impowered to Inquire into the Offences against this Act Except Treason And if any Indicted hereupon Except for Treason will submit in open Court and conform before Judgment given he shall be discharged Now that this Statute was expressly and wholly made against the Papists is evident by the whole Scope thereof as punishing saying of Mass drawing the Queens Subjects to Popery c. More especially by its preamble which alwaies opens and declares the Scope of a Law whereas since the Statutes made in the 13. year of the Reign of the Queen our Soveraign Lady Intituled An Act against the bringing in and putting in Execution of Bulls Writings Instruments and other Superstitious things from the See of Rome divers ill affected Persons have practised by other means than by Bulls or Instruments Written or Printed to with-draw Her Majesties Subjects to obey the said usurped Authority of Rome and IN RESPECT OF THE SAME pray mark to perswade great numbers to with-draw their due Obedience from Her Majesties Laws establisht for the due service of Almighty God For Reformation WHEREOF be it Enacted viz. That to with-draw to the Church of Rome shall be Treason and not coming to Church shall forfeit 20 l. p. month Nothing can be more plain than that this Levelled wholly against the Papists and cannot at all affect dissenting Protestants 3. The Statute of 29. Eliz. Cap. 6. Is only a Reinforcement of the last Act and therefore must be only intended of the same Persons viz. Popish Recusants For as yet there were no other whose Penalties this Statute Encreases for not coming to Church For where is by the former Statute of 23d it was to be only 20 l. p. month and bound to the good Behaviour after Conviction This gives to the Queen Her Heirs a Right to 20 l. p. month for every month after such Conviction till they came to Church And if default be made of payment of the 20 l. a month then to seize all their Goods and 2 parts of their Real Estate 〈…〉 But this is still concerning Popish Recusants for it respects the same that were Offenders against the Statute of the 23. And they were only Papists Therefore 't is absurd and unjust to turn the Edge on 't upon Protestants 4. We come now to the Statute of 1. Jac. Ca. 4. which confirms all the former Statutes made against Popish Recusants in the Queens time But provides for their being discharged tho Convicted upon their coming to Church And that it means and intends none but Jesuits and Popish Priests and other Popish Recusants appears manifestly not only in the Title but in the first Section of the Act it self and so throughout The Title is An Act for the due Execution of the Statutes against Jesuites Seminary Priests Recusants the 2 former words including the Romish Clergy the latter the Laiety c. and begins thus For the better and more due Execution of the Statutes heretofore made Against whom as well against Jesuites Seminary Priests and other SUCH-LIKE Priests That is other Popish Priests tho not bred up in the Serminaries as also against all manner of Recusants That is Papists tho not in Orders Be it Enacted c. That all every the Statutes heretofore made against Jesuites seminary Priests and other Priests Deacons and Religions and Ecclesiastical Persons whatsoever made ordained or professed or to be made by any Authority or Jurisdiction derived Challenged or pretended from the See of Rome together with all those made against any manner of Recusants That is Papists still but Lay men not in Orders nor professed of any Order of Monks or Friars as those before mentioned were shall be put in due and Exact Execution Nothing can be more absurd than to rack force this Law so far besides its Scope as to make use of it against Protestants agreeing with the Church of England in all the Doctrines and only differing in a few Indifferent Ceremonies When it most manifestly appears intended only against Jesuits Romish Priests and other Papists 5. And now was discovered the Hellish Powder-Plot of the Papists which occasioned the making of the Statute 3 Jac. Ca. 4. Intituled An Act for discovering and Repressing Popish Recusants So that both the occasion and the very Title shews evidently against whom this Act is designed which also appears further in the preamble the whole purport of this Act all along being only to Reinforce the rest of the Acts against Popish Recusants and for that as
be Indicted for Burglary 7. There is no power given to break Doors for Levying the Penalties therefore let the Constables and Officers be wary what they do in that Case 8. Constables would do well to know and assert the Dignity of their Office they are not to run up and down like Lacquies after the Capricio's of every Justice and spend the Lords day Prophanely in hunting after Meetings if the Justices are upon sufficient Oath Inform'd of a Meeting and will make out a Warrant specifying where it is you 'l goe but to ramble about with them from this place to that you are not obliged no more are you to seize or Imprison persons on the verbal Command of any Justice unless in visible Breach of the Peace but you must have a Warrant specifying the persons Name and Offence before you can lay hold of him or else you may repent it when sued another day for false Imprisonment 9. Since by the Statute of the 29 of Car. 2d. Cap. 7. It is Enacted in these words Provided also that no Person or Persons upon the Lords day shall serve or Execute or cause to be served or Executed any Writ Process Warrant Order Judgment or Decree except in cases of Treason Felony or Breach of the Peace but that the service of every such Writ Process Warrant c. shall be void to all Intents and Purposes whatsoever and the Person or Persons so Serving or Executing the same shall be as liable to the suit of the party grieved and answer Damages to him for doing thereof as if he or they had done the same without any Writ Process Warrant Order Judgment or Decree at all It will concern all Constables and Officers to consider with what safety they can execute any such Warrants at all on the Lords day on peaceable Meetings it being evident that every man they disturb by Colour of such Warrant on that day has by this Statute a good Action against them And so much for Laws against Dissenters In the next place according to our Promise we shall here add an Abstract of the Laws against Popery and Papists and perhaps as 't is said where there are most Laws there are most Offences so here we may say though there be such abundance of Acts of such severe and various Penalties yet there are scarce any sort of Criminals more rarely brought to Conviction or Punishment THE second Refusal of the Oath of Supremacy punisht as High Treason 5 Eliz. 1. To maintain or Extol Authority of the Sea of Rome the second time High Treason 5 Eliz. 1. To obtain or put in Use any Bull from Rome High Treason 13 Eliz. 2. To perswade or Reconcile OR TO BE RECONCILED to the Roman Religion High Treason 23 Eliz. 1. 3 Jac. 4. For Jesuite or Priest made by Authority from the Pope to come into or remain in the Kings Dominions High Treason 27 Eliz. 2. So for remaining in a Seminary six Months after Proclamation and afterward Returning High Treason 27 Eliz. 2. For Concealing of a Bull or other Instrument from Rome or reconciliation offer'd Punisht as Misprision of Treason 13 Eliz. 2. To maintain or conceal those who perswade or are Reconciled to the Roman Religion Misprision of Treason 23 Eliz. 1. To Receive Relieve Comfort Jesuit or Priest knowing him to be such Punisht as Felony 27 Eliz. 2. To go and serve a Foreign Prince having not before taken the Oath of Allegiance and entred Bond not to be Reconciled to the Roman Religion Felony 3 Jac. 4. The first Refusal of the Oath of Supremacy is Punisht as in Case of a Premunire which imports a forfeiture of all Lands and Goods Imprisonment for Life and a Deprivement of the Benefit of Law 5 Eliz. 1. To set forth or defend Power Spiritual in the Sea of Rome Premunire 5 Eliz. 1. To Bring or Receive any Agnus Dei Crosses Pictures or such like from Rome Premunire 13 Eliz. 2. 23 Eliz. 1. To aid any Person who hath put in Use any Bull from the Sea of Rome Premunire 13 Eliz. 2. 23 Eliz. 1. To send or give Relief to any continuing in Colledges or Seminaries beyond Sea Premunire 27 Eliz. 2. Refusal of the Oath of Allegiance upon the second Tender Premunire 3 Jac. 4. 7 Jac. 6. For not Discovering of Priests made beyond the Seas Imprisonment 27 Eliz. 2. Upon Indictment of Recusancy by Proclamation Imprisonment 29 Eliz. 6. Those that are not able or fail to pay their Forfeitures are to be Imprisoned until Payment or Conformity 23 Eliz. 1. Women Covert Imprisoned for Refusal of the Oath of Allegiance 3 Jac. 4. For non-Payment of twelve pence for every Sunday Imprisonment 3 Jac. 4. Women Covert Convicted for Recusancy Imprisoned till her Husband pay ten Pounds a Month or a third part of his Lands 7 Jac. 6. Standing Excommunicated for Recusancy House may be broken up for his Apprehension 7 Jac. 6. Those who shall forbear to come to Church by the space of twelve Months bound to good Behaviour with Surety in the Kings-Bench 23 Eliz. 1. Every Recusant is Confin'd to five Miles Compass for Life 23 Eliz. 2. To ten Miles distant from London 3 Jac. 5. Not to come into the House where the King or his Heir Apparent is 3 Jac. 5. For absence from Church-Service every Sunday twelve pence forfeited 1 Eliz. 2. And for every Holiday twelve pence forfeited 3 Jac. 4. For absence from Common prayer every Month twenty Pounds forfeited 23 Eliz. 1. 3 Jac. 4. For default of payment of twenty Pounds a Month all Goods two parts of Land and Leases forfeited 29 Eliz. 6. 3 Jac. 4. At the Kings Election to take or refuse twenty Pounds a Month or to take two parts of the Recusants Estate 3 Jac. 4. All Copy-hold Lands of Recusants forfeited 25 Eliz. 2. The Forfeitures of the Ancestor charged upon his Heir being a Recusant 1 Jac. 4. A Recusant forfeits for not Receiving the Sacrament according to the Service Book the first year twenty Pounds the second year forty Pounds the third year and every year after sixty Pounds 3 Jac. 4. To the Presenter out of the Recusants Goods forty Shillings forfeited 3 Jac. 4. For every Recusant sojourner and Servant ten Pounds for every Month forfeited 3 Jac. 4. Two parts of Dower or Joynture of a Married Woman forfeited 3 Jac. 5. Coming to Court an hundred Pounds forfeited 3 Jac. 5. For not Baptizing of Children according to the Service-Book publickly within a Month after their Birth an hundred Pound forfeited 3 Jac. 5. For Marrying otherwise than by a Minister an hundred Pounds forfeited 3 Jac. 5. For Burying out of the Church or Church-yard an hundred Pounds forfeited 3 Jac. 5. For sending Children beyond Seas without License an hundred Pounds forfeited 1 Jac. 4. For maintaining a School-master not going to Church or allowed to teach for every Month ten Pounds forfeited 23 Eliz. 1. 29 Eliz. 6. And forty Shillings per
Diem forfeited by the School-master and Recusant that keeps him 1 Jac. 4. All Goods and Lands during Life for Breach of Confinement forfeited 23 Eliz. 2. 3 Jac. 5. The like forfeiture for going or sending Children beyond the Seas to be Bred in Popery 3 Car. 2. For Residing within ten Miles of London an hundred Pounds forfeited 3 Jac. 5. For Practising any Function expressed in the Statute of 3 Jac. 5 an hundred Pounds forfeited 3 Jac. 5. Disabled to Reverse Indictment for want of Form or other Defect 3 Jac. 4. Disabled from the Practise of several Functions whereby to gain their Livings viz. from practising Common Law Civil Law or being a Steward Attorney Solicitor or Officer in any Court from Practising Physick or being Apothecary and from Bearing any Office in Camp Troop or Band of Soldiers or in any Ship Castle or Fortress c. 3 Jac. 5. By the Wifes Recusancy the Husband Disabled from Publick Office or Charge in the Common-Wealth 3 Jac. 5. By Marrying otherwise than the Church of England alloweth the Husband disabled to be Tenant by Courtesie the Wife disabled to have Dower Jointure Free Banks or any part or Portion of her Husbands Goods 3 Jac. 5. Disabled to Sue or Prosecute Actions to present to a Benefice to be Executor Administrator or Guardian 3 Jac 5. Children sent beyond the Seas without License are disabled to take Benefit of Gift Conveyance Descent or Devise 1 Jac. 4. 3 Jac. 5. Notwithstanding these Forfeitures Recusants are no less Subject to Ecclesiastical Sentences 23 Eliz. 1. 3 Jac. 45. But Quaere Whether one Papist was quâ Talis ever Excommunicated since the Kings happy Restauration though many thousand Protestants have been Refusal to Receive the Sacrament and take the Oaths of Supremacy and Allegiance Ipso facto disables from any publick Trust 25 Car. 2. ca. 2. Peers and Members of Parliament disabled to Sit untill taking of Oaths of Allegiance and Supremacy and declaring against Transubstantiation and the Idolatry of Rome 30 Car. 2. Stat. 2. Having thus Collected together divers of the most remarkable and advantagious of our Laws whereby the Liberties of English-men are Guarded and Secured since the best of Laws are but insignificant Cyphers if not Honestly put in Execution and since in the Execution of our Laws JVRIES are mainly concern'd who if Ignorant of their Duty or Corrupt or Over-awed and not daring to make use of that just power wherewith the Law hath invested and intrusted them may give up all those precious Priviledges and subject us to the worst kind of slavery under pretence of Law therefore here in the last place for the Information of my honest Country-men the Freeholders of England and others who in Corporations are daily call'd to this important Service I shall subjoin a brief discourse of Juries SECT I. Of the Advantages Englishmen enjoy by this Trial by Juries above any other Nation under Heaven 'T IS one of the miserable Follies of depraved humane Nature that it commonly sleights present Enjoyments and rarely rates the good things it possesses at their true value till 't is deprived of them This grand Priviledge of Trials per pais by our Countrey that is by JVRIES as it seems to have been as Ancient as the Government or first form of Policy in this Island for it was not unknown to the ancient Brittains as appears by their Books and Monuments of Antiquity Practised by the Saxons see King Ethelreds Laws in Lambert p. 218. and Coke 1. part Instit fo 155. and Confirmed since the Invasion of the Normans by Magna Charta as you have heard and continual Usage so it is a thing of the highest Moment and an essential Felicity to all English Subjects For look abroad in France Spain Italy or indeed almost where you will and observe the miserable Condition of the Inhabitants either intirely subjected to the Arbitrary Lusts of Tyrants who plunder dismember or slay them according as the humour takes them and many times without the least provocation meerly for sport and to Gratifie a savage Cruelty Or at best you will behold them under such Laws as render their Lives Liberties and Estates liable to be disposed of at the discretion of Strangers appointed their Judges most times mercenary and Creatures of Prerogative sometimes malicious and oppressive and too often partial and corrupt Or suppose them never so just and upright yet still has the Subject no security against subornations and the attacques of malicious false and unconscionable Witnesses yea when there is no sufficient Evidence upon meer suspicions they are obnoxious to the Tortures of the Rack which often make an Innocent man Confess himself Guilty meerly to get out of present pain Or if he do with invincible Courage endure the Question as they call those Torments he is many times so spoiled in his Limbs as he scarce ever is his own man again Whereas such has been the goodness of God and the prudent care of our Ancestors that to our inestimable Happiness we are born and live under a mild and Righteous Constitution where all these mischiefs may be prevented where none can be Legally condemned either by the power of Superior Enemies or the rashness or Ill will of any Judge nor by the bold Affirmations of profligate Evidence For by a fundamental Law in our Government No mans Life unless it be in Parliaement which is a Supream Court and 't is supposed will never do any man wrong shall be touched for any Crime whatsoever but upon being found Guilty on two several Trials for so may that of the Grand and Petty Jury be called and the Judgment of twice Twelve men at least all of his own Condition and Neighbourhood and upon their Oaths Coke 3. part of Instit p. 40. That is to say Twelve or more to find the Bill of Indictment against him and Twelve others to give Judgment upon the General Issue of Not Guilty All which Jurors must be honest substantial Impartial men and being Neighbours of the party accused or place where the supposed Fact was committed cannot be presumed to be unacquainted either with the matters charged the Prisoners course of Life or the Credit of the Evidence And all these must first be fully satisfied in their Consciences that he is Guilty and so unanimously pronounce him upon their Oaths or else he cannot be condemned For the Office and Power of these Juries is Judicial They only are the Judges from whose sentence the Indicted are to expect Life or Death upon their Integrity and Understanding the Lives of all that are brought into Judgment do ultimately depend From their Verdict there lies no Appeal By finding Guilty or Not Guilty they do complicately resolve both Law and Fact Judges are made by Prerogative and many times heretofore they have been preferred by Corrupt Ministers of State and may be so again in Time to come and such advanced as would serve a present Turn not
not be such a Discretion as confounds all Discretion but they must weigh the Circumstances and go according to Law and Judgment and certainly the law intended such Bail if any be accepted should be bound Body for Body for otherwise it seems no security And therefore many wise men wondered the other day when Count Conning smark was Acquitted on the Indictment for the Barbarous Murder of Esquire Thynn that he was suffered to go so soon abroad for being a Stranger he was never like to come again into Enggland and being so rich what values he to discharge the Forfeitures of his Sureties Recognizances which likewise may be easily Compounded At most the Forfeieure is to the King and what is it that to the next Heir or Kinsman He is by this means Outed of his Legal Remedy to Revenge the Blood of his near and dear Relation Sed haec Obiter The form of an Appeal of Murder I C. Hic Instanter Appellat W. E. c. In English thus I here instantly Appeals W. F. of the death of his Brother H. C. For that whereas the aforesaid H. was in the Peace of God and the King at Tonbridge in the County of Rent the twenty eighth day of March in the thirty fourth year of the Reign of our Lord Charles the Second c. at seven a Clock in the Evening of the same Day cama the said W. F. as a Felon of our Lord the King in a premeditated Assault with Force and Arms c. And upon him the said H. C. then and there felonionsly an Assault did make and with a certain Sword of the price of twelve pence Which he then and there in his Right Hand did hold the aforesaid H. upon his Head did strike and one mortal wound of two Inches long in forepart of his Head even unto the Brain to the said H. did then and there Feloniously give of which said wound the said H for three days then next following did Languish and then viz. the such a day of such a month he there died or if the case be so Instantly died And so the said W. H. as a Felon of our Lord the King the aforesaid H. Feloniously did Kill and Murder against the Peace of our said Lord the King his Crown and Dignity And that this he did wickedly and as a Felon against the Peace of God and our Lord the King the aforesaid osters that the same be detained as the Court of our Lord the King shall think meet Diversity of Courts and Jurisdictions Written in the time of King Hen. 8. 1. Note That a women cannot now bring an Appeal for the death of any other Ancestors being baried there from by Magna Charta Cap. 34. whereas as you have heard it is provided that none shall be taken or Imprisoned upon the Appeal of any woman for the death of any Person but only of her Husband But she may at this day bring an Appeal of Robbery c. For wherein she is not by that Statute restrained Coke 2d Instit fol. 68. 2. The women that brings an Appeal for the death of her Husband must be his Wife not only de Facto but de Jure not only called and reputed or cohabiting with him but actually and legally Married to him and of such a Wife the Antient-Law-Books speaks de morte viri Inter Brachia sua Interfecti the Husband is killed within her Arms. that is whilst he was legally in her possession but that the Appellant and the person killed were not ever lawfully coupled in Matrimony is a good Plea in an Appeal 3. This Right of Appeal for the death of her Husband is annexed to her Widdow-hood as her Quarentine is and therefore if the Wife of the Dead Marry again her Appeal is gone even altho the second Husband should die within the year day after the Murder of the first For she must all the while before the Appeal be brought continue Faemini viri sui his Widdow upon whose death the Appeal is brought furthermore if she bring the Appeal during her Widdow-hood and take a Husband whilst it is depending the Appeal shall Abate that is be out of doors for ever Nay if on her Appeal she hath Judgment against the Defendant if afterwards she take an Husband before the Defendant be Hanged she can never have Execution of death against him 4. By the Statute of Glocest. made in the sixth year of King Edw. 1. Cap. 9. It is Enacted that if an Appeal set forth the Deed the year the day the hour the Reign of the King and the Town where the Deed was done and with what Weapon the Party was slain the Appeal shall stand in effect and shall not be abated for default of fresh Suit if the party shall Sue within the year and the day after the Deed done 5. As for the year and day here mentioned it is to be acconnted for the whole year according to the Calendar and not for twelve Months at twenty eight days to the Month. So likewise the day intended is a Natural day And this year and day must be accounted after the Felony and Murder Committed Now if a man be Mortally Wounded on the first day of May and thereof Languishes to the first day of June and then dies the Question here arises whether the year and the day allowed for bringing the Appeal is to be reckoned from the giving the Wound or the time of Death Some have held the former For that the Death ensuing hath Relation to it and that is the Cause of the Death and the Offender did nothing the day of the Death But the truth is the year and day shall be accounted only from the first of June the day of the Death for before that time no Felony was Committed and thus it hath often been resolved and Adjudged and the reason abovesaid grounded upon Relation which is a Fiction in Law holdeth not in this Case Coke 2. Ingit fol. 320. 6. If an Appeal of Murder be brought and depending the Suit and after the Year and Day is elapsed one become accessary to the Murder the Plaintiff shall have an Appeal against him after the Year and Day past after the Death but it must be brought within the Year and Day after this new Felony as accessary 7. If a Man be Indicted for Murder and Convicted only of Man-slaughter and have the Benefit of his Clergy it seems the Wife and Heir cannot afterwards bring their Appeal Touching which the Lord Cook 3 Instit Fo. 131. cites a Case in these words Thomas Burghe Brother and Heir of Henry Burghe brought an Appeal of Murder against Thomas Holcroft of the Death of the said Henry The Defendant pleaded that before the Coroner he was Indicted of Man-slaughter and before Commissioners of Oyer and Terminer he was upon that Indictment Arraigned and confessed the Indictment and prayed his Clergy and thereupon was Entred Curia advisare vult the Court will consider
whereupon he demanded Judgment whether the Plaintiffe ought to maintain that Appeal he had brought To which the Plaintiffe demurred in Law And in this Case three points were adjudged by Sir Christopher Wray Sir Thomas Gawdy and the whole Court First That the matter of the Bar had been a good Bar of the Appeal by the Common Law as well as if the Clergy had been Allowed For that the Defendant upon his Confession of the Indictment had prayed his Clergy which the Court ought to have granted and the deferring of the Court to be advised ought not to prejudice the Party Desendant albeit the Appeal was Commenced before the Allowance of it The second point adjudged was that this Case was out of the Statute of 3 Hen. 7. For that the words of that Act are If it fortune that the same Felons and Murderers and Accessaries so Arraigned or any of them to be Acquitted or the Principal of the said Felony or any of them to be Attainted the Wife or next Heir of him so slain c. may have their Appeal of the same Death and Murder against the Person so Acquitted or against the said Principals so Attainted if they be alive and that THE BENEFIT OF HIS CLERGY THEREOF before be not had And in this the Defendant Holcroft was neither Acquitted nor Attainted but Convicted by Confession and the Benefit of the Clergy only prayed as is aforesaid so as the Statute being penal concerning the Life of Man and made in Restraint of the Common Law was not to be taken by Equity but is Casus Omissus a Case Omitted and left to the Common Law As to the Third is was objected that every Plea ought to have an apt Conclusion and that the Conclusion in this Case ought to have been Et petit judicium si praediit Thomas Holcroft Iterum de eadem morte de qua semel Convictus fuit Respondere compelli debeat And he does ask judgment if the above mentione Thomas Holcroft shall be obliged to answer againe for the same death he was once Convicted of But it was adjudged that either of both Conclusions was sufficient in Law And therefore that exception was disallowed by the Rule of the Court. Note the ancient Law was that when a Man had judgment to be hanged in an Appeal of Death that the Wife and all the Blood of the Party slain should draw the Defendant to Execution and Gascoigne said Issint fuit in diebus nostris so it was done in our Days And thus much occasionally about Appeals which we the rather inserted because the practice thereof through I know not whose negligence has been almost lost or forgot till some few Years ago a Woman in Southwark revived it against one that killed her Husband and got a pardon for it but she Prosecuted him on Appeal had judgment against him and he was Executed since which time the same Course has been frequently talkt of and brought but for the most part to the shame I think of those Women or Children who make such Compositions for their Husbands or Fathers Blood they have been by some secret Bargains or Compensations husht up and seldom effectually followed Two other Statutes of King Edw. 3. Anno 4. Edw. 3. cap. 14. A Parliament shall be holden once every year ITem It is accorded that a Parliament shall be holden every year once and more often if need be Anno 36. Edw. 3. cap. 10. A Parliament shall be holden once in the year ITem for maintenance of the said Articles and Statutes and Redress of dibers MISCHIEFS and GRIEVANCES which daily happen a Parliament shall be holden every year as another time was ordained by Statute The Comment BEfore the Conquest as the Victory of Duke William of Normandy over Harold the Usurper is commonly though very improperly called Parliaments were to be held twice every year as appears by the Laws of King Edgar cap. 5. and the Testimony of the Mirrour of Justices cap. 1. sect 3. For the Estates of the Realm King Alfred caused the Committees some English Translations of that ancient Book read Earls but the word seems rather to signifie Commissioners Trustees or Representatives to meet and ordained for a PERPETUAL USAGE that twice in the year or ostner if need were in time of Peace they should Assemble at London to speak their Minds for the guiding of the People of God how they should keep themselves from Offences live in quiet and have right done them by certain Vsages and sound Judgments King Edward the first says Cook 4. Instit fol. 97. kept a Parliament once every two years for the most part And now in this King Edward the Thirds time one of the wisest and most glorious of all our Kings It was thought fit to Enact by these two several Statutes That a Parliament should be held once at least every year which two Statutes are to this day in full Force For they are not Repealed but rather Confirmed by the Statute made in the 16th of our present Soveraign King Charles the Second Cap. 1. Intituled An Act for the Assembling and holding of Parliaments once in three years at the least The words of which are as follow Because by the ancient Laws and Statutes of this Realm made in the Reign of King Edward the third Parliaments are to be held very often your Majesties Humble and Loyal Subjects the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled most Humbly do beseech your most Excellent Majesty that it may be declared and Enacted 2 And be it declared and Enacted by the Authority aforesaid that hereafter the sitting and holding of Parliaments shall not be intermitted or discontinued above Three Years at the most but that within three years from and after the Determination of this present Parliament so from time to time within three years after the Determination of and other Parliament or Parliaments or if there be occasion more or oftner Your Majesty your Heirs and Successors do Issue out your Writs for calling Assembling and holding of another Parliament to the end there may be a frequent calling Assembling and holding of Parliaments once in three years at the least Agreeable to these good and wholsome Laws are those gracious Expressions and Promises in His Majesties Proclamation touching the Causes and Reasons of Dissolving the two last Parliaments Dated April 8. 1681. Irregularities in Parliament shall NEVER make us out of love with Parliaments which we look upon as the best Method for healing the distempers of the Kingdom and the only means to preserve the Monarchy in that due Credit and Respect which it ought to have both at home and abroad And for this Cause we are resolved by the blessing of God to have frequent Parliaments And both in and out of Parliament to use OUR UTMOST ENDEAVOURS TO EXTIRPATE POPERY and to Redress all the Grievances of our good Subjects and in all things to Govern according to the