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
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
having faithfully discharg'd that Grand Trust reposed in them by God and this Free-People they may with Comfort to their Souls and Honour to their Names and Actions safely anchor in the Haven of Eternal Blessedness So prayes with much Sincerity An English-Christian-Man William Penn. A Corollary THat the People are under a great Dissatisfaction That the Way to quiet Differences and render contrary Interests subservient to the Interest of the Government is First To maintain inviolably the Rights of it viz. Liberty and Property Legislation and Juries without Neglect That slighting and Infringing them hath been the Injury of Prince and People and early or late the Ruin of the Contrivers of so ill Designs and when all has been done the only Expedient has been to come back again to English Law This takes in all pleases all because it secures and profits all sacrificing Priviledges for the sake of Conformity makes a Breach upon the Civil Government alienates the Peoples Affections from their Prince lodges Property in the Church so as none can come at it but through Obedience to her Rites for she at this Rate has the keeping of it a Thing Unknown as well as Unsafe to the Ancient English Government 2dly That the Prince govern himself upon a Ballance towards all Religious Interests that this best poizes Parties to his Security renders him Master of an universal Affection and makes him truly and safely Prince of all his Country but the contrary Course narrows his Justice and Mercy makes the Government to shine but upon one Patch of the Kingdom to be Just but to one Party and disinherit the rest from their Birth-right that this Course ends in great Disadvantage to the Peace Plenty and Safety of Prince and People 3dly And lastly Instead of being Uncharitable Severe and Cruel for Modifications let them sleep and General and Practical Religion be promoted that which receives an Amen in every Man's Conscience from the Principle of Divine Life as the Lord Keeper well call'd it in every Breast That all agree in the most weighty Doctrines and that nothing will sooner sweeten Mens Blood and mollifie their Natures then employing that Time and Pains they bestow on fruitless Contests in Living up to what they both Know Believe and Accord in that this leaves Men to keep Company with their own Comments and makes the Text only Sacred and Holy Living necessary not only to Heavenly but Earthly Places I mean Preferments whence Virtue becomes the Door to Favour and Conscience now smothered in the Crowd of Sinister Interests the Noble Rule of Living God Almighty if it please him beget Noble Resolutions in the Hearts of our Superiours to use these plain safe Expedients that Charity may supplant Cruelty Contest yield to Good Life and present Distances meet in a Just and Kind Neighbourhood Great and Honourable is that Prince Free and Happy that People where these Things take Place W. P. ERRATA Page 6. l. 30. read and may p. 12. r. Rege Marg. r. Plut. f. 162. r. 126. f. 19. r. 350. p. 14. l. 13 r. above l. 14. r. 100. Marg. r. 975. p. 218. p. 17. l. 21. f gain'd r restor'd p. 21. l. 20. r. never so p. 23. l. 20. r. there p. 35. l. 16 r. Rites pag 44. l. 30. r. Sirmium l. 35. r. Factions p. 47. l. 29. r. perhaps is p. 51. l. 15. r. of the. Caesar Com. Tacit. in vit Agric. Dion l. 6. Beda M. West an 4 16. l. 1. c. 17 Hist Germ. Concil Brit. p. 397. Ll. Inâ— Lam. Miror c. 1. §. 2. Miror Just c. 1. §. 3. §. 2. c. 4. §. 11. Hoven Eadmur Histor l. 1. p. 13. M. Paris in vit Gulielm Spicileg Chro. Leichf Ll. Gulielm c. 55. Ll. Gulielm cap. 42 45. Gloss 227. Camb. Brit. Norf. Ll. Edw. Ll. Alfr. c. 1. 31. Ll. Gulielm c. 42 45 55 Ll. Henr. 1. cap. 5. Caes Comm. l 5 6. Dion in vit Sever. Tacit. in vit Agric. c. 12. Tacit. Hist Germ. Plat. in vit Sol. Lyr. Concil Brit. 162. Ll. Sax Lam. Cant ab f. 1. Ibid. f. 22. Ll. Ed. Lam. Cant. f. 139. Ll. Sax. Lam p. 1. Concil Brit. 19. Ingulph Spelm. Gloss Tit. Gemote f. 261. Ll. Gulielm c. 55. Ll. Guliel c. 58. Spicileg W. Malmbs Hist p. 101. Cart. moder foeder magn sigil ann 1. Joh. ex vet Reg in Arch. Cantuar. Archiepiscop Rot. Cart. ann 5. Joh. Memb. 5 n. 29. Rot. Par. 24. Edw. I. n. 22. Rot. Par. 40. Ed. 3. n. 78 Ll. Sax. Lam ann 675. Ll. Etheld c. 3. Lamb. Ll. Inae Ll. Canut Spicil 197. Sâ—igand 9th Hen. 3. Ch. 14. Ch. 29. Cook Proaem Instit part 2. 52. Hen. 3. Stat. Marleb Cook on c. 4. of 52. E. 3. Inst 2. p. 50. 5. Ed. 3. c. â— 25. Ed. 3. c. 4. 17. R. c. 6. Rot. Parl. 42. Ed. 3. c. 3. Cook 2. Inst 43. Stamf. pl. cor p. 150. â—â— Sax. Lam. Concil Brit. 219. Ingulph Rot. Parl. 13. Ed 3. n. 8. Cook 4. Inst fol. 14. n. 34. Praeambl 9. Henr. 3. 25. Ed. 1. c. 1. 42. Ed. 3. c. 1. Rot. Parl. 15. Edw. 3. n. 10 37. Cook 1. Inst f. 81. Cook 2. Inst f. 525 526. 25. Edw. 1. c. 3. 28 Edw. 1. c. 1. 25. Edw. 1. c. 4.