Gratis and no Judge to take any Fee or Reward for any thing but of himself Eightly Do they not deny Justice when they deny such Writs Gratis Ninthly Do they not defer Justice when they detain poor men that are Bailable in Prison while they have sufficient men ready to tender for their Bail till they be forced to borrow money of other friends and to send far and stay long before they can receive it to loose their Bail in the interim and be forced to seek others by which delays their Goalers Fees increase and their Dyer Lodging and Expences draw charges which they might have saved to find Bread for their Wives and Children at home who perhaps are forced to fast by that means and to sell or pawn their Cows or Clothes for this money this damnable money thus extorted by a Judge for scribling his Infamous name to a Writ which doth but wrap a man and his cause faster in his clouches O Merciless Miserable Mercinary Judge that can neither give nor lend so little as his name to so much goodness in Policie if not in Charity to give a man Liberty to breath and take leave of his Home upon security of more advantage both to Court and Party than his imprisonment to return to his Pinfold Radamanth himself abhorreth such foolish covetousness Do they not defer Justice when by their Writs they cause Indictments Informations and just Suits Commenced in other competent and more proper Courts in all parts of the Kingdom to be removed to Westminster and there detained without any Tryal these 40 years How many thousands of Papists and heinous Malefactors that should have been punished in and by their Counties and Courts at home have by this means found Westminster and its Courts their onely Sanctuaries and Priviledges for none but Eminent Opulent Impenitent Offendours But is not Justice denyed when any Bailable man is denyed to be Bailed Or more when Bail is accepted upon Oath for its sufficiency and is denyed to be Filed and the Party so Bailed in Law detained Prisoner still at the Judges and Planriffs pleasures Briefly Is not the Administration of all the Law and Justice in England Ingrossed and Monopolized at Westminster where the Judges and Courts assume to be chief and do exercise a plenary jurisdiction over all others so that they suffer none but themselves to erre or to abuse Law nor any to accomplish any Justice or to reform any Errors but onely themselves who do pretend to correct all in their Exchecquer-Chamber where instead of correcting any they confirm their own which must be all as aforesaid Lastly is it unknown that they were wont to Buy their Offices of the Kings Servants and therefore to Sell their Under-Offices to their own Servants Attorneys c. And was not this the Buying and Selling of Justice that is yet unpaid for had need so to be Reformed Is it any reason that any should Buy Justice and not Sell it for gain by the Bargain Is it not Bought to that end Is it not to that end Judges neglect to give Attorneys their ancient Oath whereby they were wont to be Sworn to do no Falshood nor cause any to be done in their Courts and if they knew any to give knowledge thereof to the Judges c. that they should increase no Fees c. as you may read it at large in the latter end of the Attorneys Academy Is it not to the same end that Judges neglect to give all Plantiffs for Trespass their Oaths that the Trespass amounteth to 40 f or more or else let the Suit be Tryed in the Sheriffs Court at home according to the Statute of Glocester 6. Ed. 1. cap. 8. And is it not likewise to the same end they neglect to take security of all Plantiffs to prosecute all Actions with effect or pay Costs and Damages to the Defendants if they prove not their Issues which Judges anciently used to do and still ought before any Declaration be admitted or Plea required as saith the Mirror of Justice fol. 64. b. Is it not to the same end the Chancery neglecteth to take the Oath of all Complainants to make good their Bills in all points or pay Costs and Damages in case they fail and that before any Sub-poena be granted them according to the Statute 15. H. 6. cap. 4º And were not all well ended if all the end were that none were forsworn for Injustice but the chief Justices though comfortless for them to be so wretched as to have no associates is it not the worse for the People that their Ministers which ought to be Sworn as aforesaid are not Whereby old Attorneys without hazard of Perjury lead young Judges Sworn to what they know not to do what they should not as when so many subtil and lying Mercuries direct so many covetous and blind Cupids to shoot forth their arrows that they may stick them where they please and commend the shooters for hitting the marks that yield them the best sports of the gain The rest of this Charter I shall omit as aforesaid for the reasons aforesaid and shall conclude this with the beginning of another made in Confirmation Renovation and Perpetuation thereof by King Edward the first in the 28 year of his Reign as followeth viz. EDWARD by the Grace of God King of England Lord of Ireland Duke of Guyen To all Arch-Bishops c. greeting We have seen the great Charter of the Lord Henry our Father of the Liberties of England in these words And so beginneth the Charter as aforesaid and ondeth this and it together saying We ratifying and approving these gifts and grants aforesaid confirm and make strong the same for us and our Heirs perpetually and by tenor of these presents renew the same Willing and granting for Vs and Our Heirs that this Charter and all and singular its Articles for evermore shall be stedfastly and inviolably observed And if any Article in the same Charter conteined yet hithirto peradventure hath not been observed nor kept We will and by Our Authoritie Royal command from henceforth firmly they be observed These c. being witnesses Given at Westminster under Our own hand the 28 of March in the 28 year of Our Reign Again where the L. C. maintaineth the Statute of Marlebridge made 51 Hen. 3. cap. 5. which saith The great Charter shall be observed in all its Articles as well in such as pertain to the King as to others and that shall be enquired of before the Justices in Eyre in their Circuits and before Sheriffs in their Counties when need shall be and writs shall be freely granted against them that do offend bâ—fore the King or the Justices of the Bench or before Justices in Eyre when they come into those parts c. And the offendors when they be convict shall be grievously punished by our sovereign Lord the King in form above mentioned Expost and Quer. I shall but ask Why not Justices in
Eyre still And why not Writs Gratis sent to the Sheriff of every Countie to enquire of offences and offendors against the great Charter And doth not this Statute prove that Sheriffs ought to have such Writs and to make such enquiries And that the King referred himself as well as others to the judgements as well of Justices in Eyre as of the Justices of the Bench and that he would have his Writs granted as well against him as others and that Gratis doth it not futther prove that Kings accounted the Justices in Eyre his Justices and their Court his Court as well as the Kings-Bench how therefore doth the Lord Coke hereafter call them new Justices and their Court new Court But more of that in its place Now having done with so much of Mag. Charta as I promised and with the 5 Chapter of the Statute of Marlebridge and the 8 of the Statute of Glocester Here ensueth the Confirmation of the great Charter made at London 10 Octob. Anno 25. Ed. 1. three years before that which is Printed before it because that containeth all the Charter in 38. chapters at large and this but 7. In the First of which it confirmeth both Charters and every Article thereof both made 9º H. 3. in general words as followeth viz. Edward by the grace of God Cap. 1. Charters King of England Lord of Ireland and Duke of Guyen To all those that these present Letters shall hear or see Greeting Know ye that We to the Honour of God and of Holy Church and to the profit of Our Realm have granted for Vs and Our Heirs That the Charter of Liberties and the Charter of Forrests which were made by the Commonalty of the Realm in the time of King Henry Our Father shall be kept in every point without breach And We will that the same Charter shall be sent under Our Seal aswel to Our Justices of the Forrest as to others And to all Sheriffs of Shiers and to all Our other Officers and to all Our Cities throughout the Realm together with Our Whits in the which shall be contained that they cause the foresaid Charters to be published And to Declare to the People that We have confirmed them in all points And that Our Iustices Sheriffs Maiors and other Ministers which under Vs have the Laws of Our Land to guid shall allow the same Charters pleaded before them in Iudgement in all their points That is to wit The Great Charter as the Common Law And the Charter of the Forrest for the Wealth of Our Realm The Title of this Statute saith the Lord Coke is Confirmationes Chartarum de Libertatibus Angliae Forrestae L. C. upon Cons C. f. 526. viz. The Confirmations of the Charters of the Liberties of England and of the Forrest And true it is saith he that hereby the said Charters are expresly confirmed but they are also excellently interpreted which is a Confirmation in Law for here is nothing Enacted but is included within Magna Charta And by the Commonalty saith he is to be understood by the consent of all the Realm by Authority of Parliament and many times by the Commonalty of England is signified an Act of Parliament c. before Printing and before the Reign of King Hen. the 7th Statutes were Ingrossed in Parchment and by the Kings Writ Proclaimed by the Sheriff of every Countie this was the ancient Law of England that the Kings Commandments issued and were published in form of Writs as then it was An excellent course and worthie to be restored c. This Clause saith he is worthie to be written in letters of gold viz. That our Justices Sheriffs Majors and other Ministers which under us have the Laws of the Land to guid them shall allow the said Charters in all points which shall come before them in Judgement And here it is to be observed That the Laws are the Judges Guides or Leaders according to that old Rule Lex est Exercitus Judicum viz. The Law is the Judges Armie Tutissimus Doctor viz. The safest Teacher or Lex est optimus Iudicis Synagogus viz. Their best Synagoug And Lex est tutissimus cassis viz. Their safest Fortress There is an old legal word saith he called Guidagium viz. Guidage which signifieth an Office of guiding Travelors through dangerous and unknown ways Here it appeareth that the Laws of the Realm hath this Office to guid the Iudges in all causes that come before them in the ways of right Justice who never yet misguided any man that certainlie knew them and truly followed them The sence of the words That the great Charter is to be holden for the Common Law is that it is a Common Law to all in amendment of the Realm that is of great mischiefs and inconveniencies which oppressed the whole Realm before the making thereof Expost and Quer. Doth nor the Lord Coke by all this his expression commend this Statute very highly Why did he not in his duty cause it to be observed in his time And had not Iustices of the Forrest and other Iustices Sheriffs Majors and other Ministers of his time had they received the Great Charter with the Kings Writs power thereby as well as he to cause the said Charter to be published to the People and that the King had confirmed it in all points Why did he by neglecting his duty to send the said Charter and Writs unto them accordingly make them fail of their duties Doth not the Lord Coke confess by this clause Worthie as he saith to be written in letters of gold That Sheriffs Majors and other Ministers as well as Justices and other Justices as well as those at Westminster have or ought to have the Law of England to be their guid and ought to allow Magna Charta in all points which in any Plea shall be before them Why then do the Iustices at Westminster by their Habeas corpus and other Writs as aforesaid disturb and prevent all Sheriffs Majors c. to exercise their Offices before Judgment or after without proof of Injustice or manifest Errors committed by them in their Iudgements Why do not the Iustices at Wistminster when they have Persons and Causes brought before them by virtue of their Writs allow Mag. Car. to be Pleaded before themselves since they will suffer no others to hear it How can it be true when they do not that the Law is their guid Do not they assume the sole Guiding Learning Interpreting Exercising and Over ruling of the Law to themselves when they suffer no other Iustices or Ministers of the King but themselves to have any Judgement therein as aforesaid Why do they bely the Law so much as to call it their Guid their Teacher their Army their Synagogue their Fortress when it is manifest That their Attorneys their Sollicitors their Catch-polls and their Goalers are their Guids Teachers Supernumerous Armies and Invincible Fortresses as they trust but may be deceived
all whose ways are to Injustice as aforesaid How can that Law be called Common to all which They and these their Creatures Monopolize Ingross and Appropriate all to themselves as aforesaid And We will C. 2. Judgements That if any Indgement be given from henceforth contrary to the points of the Charters aforesaid by the Iustices or by any other Our Ministers that hold Plea before them against the points of the Charters it shall be undone and holden for nought Whatsoever Judgement is given against this Statute of Magna Charta L. Coke upon Con. C. f. 527. c. is made void by this Act and may be reversed by a Writ of Error because the Judgement is given against the Law for this Act saith Soir de fair pur nienttenus viz. as the Stat. Englisheth it self It shall be undone and holden for nought Expost and Quer. If so Why should not all Iudgements appearing as aforesaid to be contrary to Mag. Charta which are given for Arrests and Imprisonment of mens Bodies for Debt be undone and held for nought Why did Mr. Garland lately trouble the most High Court of Parliament whereof by so doing he shewed himself an unworthy Member with a ridiculous useless Act of his drawing for the Enlarging poor Prisoners for Debt Why did not he if he did ever read this place of the Lord 〈◊〉 mind the Parliament to command the Judges who seem if they have read it to have forgot it to reverse their Erroneous judgements against Debtors so far as they extend to their Imprisonment and to send their Liberate to all their Goalers to set open all their Goal dores and let forth so many of the Prisoners for Debt as they have left alive The poor because they have no Estate whereof to pay the rich because they have Estates sufficient for all or part against which Estates so much of their judgements may stand as concerneth that and not their Bodies and Executions may be taken thereupon by Elegit or Fieri facias according to the Statute of Westminster the 2. cap. 18th agreeable to Magna Charta and the Parliament not to be troubled except to Impower the Iudges by an Order to rectifie their judgements according to that Law which is in force and so forgo their Errors and Repealed Statute of the 25th of Ed. 3d c. 17th which ought to be no Guid Leader or Teacher to learned and grave Judges that can never be misguided by the right law if as the Lord C. saith they certainly know it and be pleased truly to follow it And by this course as well the Creditors of the rich Debtors as the poor Prisoners for Debt that have been wronged by the Judges Erronious judgements and proceedings against Mag. Charta may be partly redressed and so rest satisfied until the Parliament be pleased to right them further as shall appear hereafter they may So likewise may that Prisoner which is Imprisoned again after his inlargement by Garlands Act be Enlarged again by the same Judge that Committed him without troubling the Parliament or People with any such Appeal as is lately divulged or suffering the Apprentices Out-Cry to run so far That now it will never be stopped till the Thieves be taken And that all Arch Bishops Cap. 4. Excom c. and Bishops shall pronounce the Sentence of Excommunication against all those that by word deed or counsel do contrary to the said Charters or that in any point break or undo them And that the said Curse be twice a year Denounced and Published by the Prelates aforesaid And if the same Prelates or any of them be remiss in the Denunciation of the said Sentences the Arch-Bishops of Canterbury and York for the time being shall Compel and Distrain them to the Execution of their Duties in Form afore-said This Excommunication the Prelates could not pronounce without Warrant by Authoritie of Parliament L. C. upon Confir Cart. f. 527. because it concerned Temporal causes Expost and Quer. Was not the Authority of this Parliament sufficient Warrant for Prelates to pronounce Excommunication according to the Tenor and limitation of this Act Doth not the Lord Coke say before That this Act is not onely an Express Confirmation of Magna Charta but also a Confirmation of it in Law Doth he not say before that That Magna Charta should live for ever and in all Successions of Ages for evermore Is not the substance of the Excommunication given by this Act to the Prelates to pronounce Had the Prelates any more to do therein but to pronounce an Excommunication What meaneth Ipso Facto in the Act but to let all future Ages understand That the breach of Mag. Cha. which is a Declaration of the Fundamental Laws of England is such an Offence as deserveth an everlasting Curse inflicted by the Law it self upon the Breakers for ever Which Curse receiveth no more strength from the Pronouncer than a Sentence of Death from a Iudge who doth but tell a Fellon whom the Law condemneth what shall be the manner of his Death If any Excommunication was ever pronounced by virtue of this Act as there were two in two several Kings Reigns were not those Excommunications in force and so to continue as long as Magna Charta it self the Prelates and their Successours neglect of their Duties by discontinuing such Denunciations twice yearly afterwards notwithstanding If so Are not those Excommunications still in force except Absolutions be produced granted and given by equal Authority to that whereby those Excommunications were Denounced If so Are not Excommunications until Absolutions of the same accompt and validity in Law as Out-lawries until they be reversed If so Are not all the Lands Goods and Chattels of all Excommunicats now the States as formerly they were the Kings and so Seizable Sequestrable and Convertible to that use until Absolution And ought not satisfaction precede Absolution Ought not that satisfaction extend to every particular man that hath been wrong'd in this case which as the L. C. saith is a Temporal case and so called in respect of the interest of all men called by the Clergy Temporal for distinction from themselves that would be called Spiritual And so as I believe not to be commuted by a Prelatical Sentence to a trivial Pennance nor pardoned by Parliament without excepting every particular Interest And what Parliament can Pardon or Absolve Offendours against Magna Charta but by the Rules of Magna Charta without offending Magna Charta themselves and incurring the same Excommunication as they have incurred that would be Absolved If Excommunications be no Terrors to Atheistical Judges Justices c. who neither Believe nor fear Heaven Hell God Justice nor Laws though they cannot in nature and reason but know that such there are and are to be beleived feared and obeyed shall not Excommunications be sufficient Warrants for Christians English Christians in England being warranted not onely as the L. C. saith By
more increase and enhance the Markets of their Justice by suffering no other Judges to admonish or Justifie any offendors at home and ingrossing all to themselves at Westminster or before such as they send to fripper for them in Assizes Goal-Deliveries and Nisi priusâ—s Have not some present Grafts of the old stock Judges of Assizes in possibility for the Countrey their Agents in Chancery procured several late Injunctions to be dissolved in Chancery without the privity of both parties whom they concerned to the end onely to beget work for them in the Assizes lest they should want better Did our late Judges lawfully counsel King Charls in his busines when they gave their Resolutions for him concerning the Ship-money Did they not assent to a thing or things that turned to his dammage and disherison and overturned him and his Posterity out of three Kingdoms and his life to boot when they assented to Ship money and Monopolies Did not the Kings Councel and other Serjeants and Lawyers draw if not plot all such Patents Got they not more by their Fees for their advise therein which were present pay than the King did by his reservations for interest in those Grants which are yet in Arrear Was any thing reserved to the King thereby but what his Councel learned thought fit and advised him to take and the Paâ—â—ntees to give Did not those Judges that had the keeping of both the Kings Seals assent to all those unlawfull things whatsoever they Sealed Briefly doth not this Oath in every point evidence the Judges at Westminster and their brethren to have been the chief betrayers of Kings and People in their chief trust to guide and hold both in the right way and did they not lead both wrong And thereby are the chief Authors of all the blood spilt and estates ruined in these three Kingdoms in and by these late Wars which were undertaken for Reformation onely of such deformities in Law and Government which you see they had power to keep in form by their lawfull judgements or admonitions to the right or not consenting to the wrong Do not our Records and History testifie that all the Civil Wars of England were alwaies undertaken for Reformation of Injustice evil Government and corrupt Lawyers that were alwaies the causers thereof by breaking and causing to be broken the Liberties of Magna Charta which the People sought alwaies to recover Were not Hugh D'Burgo Chief Justice of England Walter D'Lancton Lord Treasurer of England Brember Trisilian Bellknap Thorp c. examples of their times in that case If so few examples will not serve to make all Judges mend should not all such Judges be made examples to serve posterity to see that such evils are not necessary for Common-wealths Shall such Extrajudical Judges such lawless Lawyers c. as will not be tied by Oaths made in and by Parliaments Excommunications denounced by Authority of Parliaments Charters Signed Sealed and Confirmed in and by Parliaments nor by Acts Laws and Statutes made by full and free Parliaments be suffered to sit with Christians in Parliaments to make Laws Votes Oaths and other Obligations upon Christians which shall be none to themselves But let us see further what an other Act of Parliament saith to this Oath as ensueth viz. The Statut. 20. E. 3. Pream Letter Justice Edward by the Grace of God c. To the Sheriff of Stanford greeting Because that by divers complaints made to Vs We have perceived that the Law of the Land which We by Our Oath are bound to maintain is the less well kept and the execution of the same disturbed many times by maintenance and procurement as well in the Court as in the Countrey We greatly moved of Conscience in this matter and for this cause desiring as much for the pleasure of God and ease and quietness of Our Subjects as to save Our Conscience and for to save and keep Our said Oath by the assent of the Great men and other Wise men of Our Councel We have ordeined these things following viz. First Cap. 1. We have commanded all Our Iustices that they shall from henceforth do even Law and execution of right to all our Subjects rich poor without having regard to any person and without letting to do right for any letters or commandment which may come to them from Vs or from any other or by any other cause And in that any letters Letters writs or commandments come to the Iustices or to other deputed to do Law and right according to the usage of the Realm in disturbance of the Law or of the execution of the same or of right to the parties the Iustices and other aforesaid shall proceed and hold their Courts and Processes where the Pleas and matters be depending before them as if no such Letters Writs or commandments were come to them And they shall certifie Vs Our Councel of such commandments as be contrarie to the Law as before is said And to the intent that our Iustices should do even right to all people Justice in the manner aforesaid without more favour shewing to one more than to another We have done Our said Iustices to be sworn that they shall not from henceforth as long as they shall be in office of Iustice Fees Roabs take Fee nor Roabe of any man but of Our self And they shall take no gift nor reward by themselfs nor by other privily nor apertly of any man that hath to do before them by any way except meat and drink and that of small valure and that they shall give no counsel to a great man nor small in case where We be Partie or which do or may touch Vs in any point upon pain to be at Our will Bodie Lands and Goods to do thereof as shall please us in case they do contrarie And for this cause We have increased the Fees of the same our Iustices in such manner that it ought reasonably to suffice them Expost and Quer. Doth not the King say here He is bound by his Oath to maintain the Laws of the Land Doth not the Lord Coke say before That a King in his Politick capacitie cannot dye Did not or ought not all Kings of England take the like Oath as this King did Were they not therefore bound to maintain the Laws of England as well as he and to be advised and ruled by their Judges how to maintain them as the Oath of the Judges this Statute and others do manifest they were Are not Judges as Immortal as Kings in their Politick capacity Are they not bound by their Oaths not onely to maintain and execute the Laws of England against all men without regard of Persons but also to advise their Kings to maintain them and how so to do and to hinder or not consent with their Kings to break them Were not the maintenances whereof the King here complaineth and the procurements as well in Court as
should others that are not such indeed be sheltered to defend or countenanced to offend under that pretence And as for Members of any Court why ought not they to sue and be sued by their Atturneys in other Courts than their own since it is unnatural for any bodie to suffer any of its Members though never so corrupt to be put to any smart which it may avoid And may not nay ought not every just Court avoid such suits and the suspition of their injustice by entertaining them and proceeding therein by leaving them to the justice of other Courts of competent judicature as all other Courts do leave their Members to the mercy of the Courts at Westminster or may not nay ought not all Courts of judicature within their jurisdictions determine the causes of all such Members of the Courts at Westminster as shall be found and arrested within their jurisdictions notwithstanding any Writs of priviledge or other Writs to remove them before they be determined rather than the Courts at Westminster may send for the Members of every Court to be justified by them For who can say he hath ever found any justice there against any priviledged man And how many that be no Members of any Court there indeed are so countenanced as subordinate to some ill Member or other there and have their Law for nothing to bring Fees and gain to one or other of those courts out of honestmens purses and Estates against whom they can shew no colour of right any where but where they know they shall be favored and their Adversaries oppressed And how many men of good Estates have been and daily are not onely oppressed but undone by that means Thirdly for Trespass vi Armis Is it but a common-Plea and consequently proper to all courts of Record and rather to be tryed within that jurisdiction where the offence is committed than elsewhere And hath not the King his Fines imposed and levyed by the authority of all such courts as wel as by the Kings-Bench Fourthly for Replevins may they not as well be removed to and determined by the Common-Pleas as in the Kings-Bench Fifthly what meaneth the Lord by his words viz. Originally restrained but that the Kings-Bench is restrained from having any original Writs Returnable thither in Real Pleas And is it not as much restrained from originals in Personal Pleas that are as Common-Pleas as Real by this Statute Or by what other Statute Law or President is it inabled to have any originals returnable to it for debt when the Register and Ret. brevium have no such Presidents as aforesaid Is not therefore all the practice of the Kings-Bench for debt unjust and perjurious as aforesaid and moreover a faint Action c. as the prisoners for debt in that Court have lately set forth by their Petition to the Lord General and his Officers concerning this matter A Free-man shall not be ameirced for a small fault Caput 14. Ameirciaments but after the quantitie of the fault and for a greater fault after the manner thereof saving to him his contenement or Freehold And a Merchant shall be likewise ameirced saving to him his Merchandize And any other Villain than Durs shall be likewise ameirced saving his Wainage if he fall into Our mercy And none of the said Ameirciaments shall be assessed but by the caths of honest men of the Visionage Carls and Barons shall not be ameirced but by their Peers and after the quantitie of their trespass No man of the Church shall be ameirced after the rate of his spiritual benefice but after the rate of his lay teuement and the quantitie of his trespass A Free-man here Lord Cook upon Magna Charta fol. 27. hath a special understanding saith the L. C. and is taken for a Free-holder and this appeareth by this clause Salvo contenemento suo viz. Saving his Free-hold c. This Act extendeth to Ameirciaments not to Fines imposed by any Court of Justice c. Free-men are not intended to officers or ministers or officers of justice c. The Writ of Moderata misericordia giveth remedie to the Partie that is excessively ameirced c. Albeit the Law of England is a Law of mercy yet it is now turned to a shadow for where by the wisdom of the Law these Ameirciaments were instituted to deter both Domandants from unjust suits and Defendants from unjust defences which was the cause in former times of fewer suits c. If amerciaments were instituted to deter Plantiffs from unjust suits Expost and Quer. and Defendants from unjust defences and were the causes of fewer suits in former times how comes the Law turned to a shaddow in the Lord Cokes time when in the Kings-Bench and Cmmon-Pleas am erciaments were as frequent and greivous as in any other time and suits no fewer nay more numerous than before as Records of both Courts declare unless he means that all the Writs in the Register and Natura brevium both original and judicial whereby suits were determined amongst neighbours friendly at home became useless since Habeas corpus c. carried all to Westminster And that there injustice shaddowed under the name and habit of justice remunerated the litigious supporters of her being with such shares of her spoils that though she trebled their amerciaments she made them alwaies gainers unless when to satisfie their revenge rather than their purses they commuted their monies for counsels and countenances to undo the opposers of their malice whereby both parties became loosers and often ruined and injustice onely remained the gainer and increased her kingdom as the Divel doth his by such suitors and made more suits for Westminster than all the Courts of Errors and their Judges Lawyers and Attorneys there shall wear out while they live without extraordinary helps of their servants No town or Free-man shall be distrained to make Bridges or banks C. 15. Bridg. Banks but such as of old time and of right have been accustomed to make them in the time of King Henry our Grandfather No Banks shall be defended henceforth C. 16. Banks but such as were in defence in the time of King Henry our Grandfather by the same places and the same hounds as were wont to be in his time Both the next precedent chapters sufficiently expound themselves so that the Lord Coke speaketh no more to this matter but that the Mirrour saith That diver Rivers and their Banks were in his time appropriated and blocked up by divers persons to debar common-fishings which were wont to be used there in the time of King H. 2. And I believe there are many more so done more lately which Commissioners for Sewers shall do well to look to No Sheriff C. 17. Pleas Crown Constable Escheator Coroner or any other our Bailiffs shall hold Pleas of the Crown One mischief before this Statute L. Coke upon M. C. 30. was saith the Lord Coke That no Court but the Kings
that were before Magna Charta chosen by the peole as they were Ministers of Justice wherein the people were concerned And were they by this Act but restored to their ancient jurisdiction as the Lord Coke saith Sheriffs were Was not that alteration which was made by divers Acts of Parliament made by such Acts as were contrary to Magna Charta And are not or ought not all such Acts to be void as the L. Coke hath elsewhere said Doth not these contradictions declare the Lord Coke to have been distracted with spight and envy against â—ustices in Eyer And where in this leaf he would perswade the people to suspect Justices in Eyer of corruption and Monopolizing justice to wrong the people that chuse them can the people believe that these Justices who are to be chosen by them and to be displaced by them when and as often as they see cause will or can wrong them more than those chosen by the King and his Servants without their consents unless they can believe that they may be perswaded to give their consents to wrong themselves Is it not a Bull of less formality than ever any Popish Bull was keeping a man off with his Horns That he shall have no hold of his tail when he saith That the clause where no remedy was before c. ought to be expounded where no Action was given by the Kings Writs to be pursued at Common Law Since by the Statute of Marlebridge Justices in Eyer were to inquire by the Kings Writs and now are by express words of this chapter not onely to inquire but also to determine by virtue of their Commissions without the Kings Writs And what cause could they or can any other Court determine by virtue of their Commission without the Kings Writs but is Actionable by the Kings Writs What doth this Statute give by virtue of this Commission if all things Actionable by Writs be not determinable by these Commissions without Writs And what doth this Statute avail if not constructable as others so that there should be no failer of justice Where was the failer of justice but in the Kings Courts and Iudges in not executing justice upon the Offendors of Magna Charta Doth it not therefore appear that the said clause Where no Remedy was before ought to be expounded where no remedy was given before by Iustices in Westminster against the Kings Servants and themselves that were the greatest contractors in the breaches of Magna Charta Were not the Iustices in Eyer therefore inabled with a power to supply their defaults faults and to do right to the People against the King himself and all his Servants at Westminster that wilfully failed in their justice and power And where he saith The Justices called Trail Baston had like authoritie as Justices in eyer and committed Errors upon pretence thereof had all their proceedings transported to the Kings-Bench doth it not appear by the Statute called Ragman that those Iustices were made by the King without the consent of the people and sent abroad perhaps of purpose to err and abuse the people to give colour to the Kings-Bench to send their Writs of Error for the proceedings of the Iustices in Eyer upon pretence of like Errors so to suppress all Iustice against themselves and their Creatures Doth not the Lord Coke here withal prefer the chargeable delaies of causes spun out by Termes and Years before speedy justice done day by day at mens own doors which he calleth Piecipitat Doth he not ground this course for suppressing speedy justice by Writs of Errors upon the resolution of the Iudges at Westminster which he al leadgeth as sufficient to maister Authority given by Act of Parliament And is it not the resolution of all Lawyers that no power but Parliament is equal to Parliament and no Parliament to be so impowred as to cross Magna Charta and its Confirmations Doth he not further sol 559. alleadge the resolution of all the Iudges of England against the King and his Councel for an Erroneous Act when they had chosen a Sheriff for Lincoln in a case of necessity without the consent of the People But to hasten this Treatise to an end I shall end this Statute for this time with few chapters following viz. The King hath granted unto his people Cap. 8. Elect. of Sherifts that they shall have Election of their Sheriff in every Shire where the Sheriffalty is not of the Fee if they list I shall say no more to this than hath been said before In summons and Attachements in Plea of land C. 25. Summons A. â—ach the Whits from henceforth shall contain 15. days full at the least after the Common Law if it be not in Attachement of Assizes taken in the Kings presence or of Pleas before Iustices in Eyer during the Eyer Upon this I must ask Expost and Quer. Is not a Writ of Debt Summons Should not that be given to the party which ought to be summoned Should not an Attachement follow by distinction of 15. days as this Statute prescribeth Shall the repealed Statute of the 25th of Ed. the 3d serve Lawyers turns to make a distinction between a Plea real and Personal And shall that Writ of Summons be counterfeited either in it self or in its return as aforesaid Such Executions shall be done of them that make false Returns of Writs Ca. 16. False Retur of Wr. whereby right is deferred as it is ordained in the 2. Statute of Westminster with like pain at the Kings commandment This is an Act of Confirmation L. C. upon Ca. 16 f. 568. whereby the Statute of Westminster the 2d. cap. 39th touching false returns is confirmed Doth not the 2d Statute of Westminster cap. 39. say Expost Q. That the King hath commanded that Sheriffs shall be punished by the Justices once or twice if need be for such false Returns and if they offend a third time none shall have to do therewith but the King c Doth not the Court of Kings-Bench assume the King to be always there in Person And what they speak to be his own speech Is it not they therefore that should punish Sheriffs for their false Returns the third time of their offence But is it not indeed they and their Creatures as well as those of the Common-Pleas do make false Returns in the names of the Sheriffs of Lâ—ndon and Middlesex and do consequently make those Sheriffs liable to Actions as aforesaid How can they punish those Sheriffs for those false Returns which they themselves suffer their Clerks to make unknown to the Sheriffs as aforesaid And who but they cause or suffer all Sheriffs falsly to Return Exigents with the words Per judicium Coronatorum and the Coroners names who know no such thing And if any man be Out-lawed without the judgement of the Coroners of his County or any mention made thereof in the Sheriffs Return is not that Outlawry as injurious
to the Party Perjurious in the Judges who admit such a Return and proceed upon it and as Illegal in the Sheriff that makes such a Return and as different from due Proces of Law as the other And do not those false Returns filed upon their Records make all their proceedings thereupon false and faint Actions as aforesaid And if all before written be not sufficient to make it appear to the world that they are not onely Forgers Perjurers and Anathema's themselves but also the onely causers of all others to be or be accompted the like And that their Lives Lands and Goods are in the immediate dispose of the present State by the judgements and confessions of their own mouths Behold their Oath which they voluntarily take when they assume their places whereby they binde themselves further before God and man as followeth viz. Ye shall Swear The Oath of the Kings Judges that well and lawfully ye shall serve our Sovereign Lord the King and his people in the office of Iustice and that lawfully ye shall Counsel the King in his business and that ye shall not councel nor assent to any thing which may turn him to dammage or disherison by any manner way or colour And that Ye shall not know the dammage or disherison of him whereof Ye shall not do him to be warned by Your self or by other And that Ye shall do even Law and Execution of right to all his Subjects rich and poor without having regard to any person And that You take not by Your self or by other privily nor apertly gift nor reward of gold not silver nor of any other thing which may turn to Your profit unless it be meat or drink and of small valure of any man that shall have any Plea or Proces hanging before You as long as the Proces shall be so hanging nor after the same cause And that Ye take no Fee as long as Ye shall be Iustice nor Robes of any may great or small but of the King himself And that Ye give none advise nor Counsel to no man great nor small in no case where the King is party And in case that any of what Estatt or Condition they be come before You in Your Sessions with Force and Arms or other ways against the Peace or against the form of the Statute thereof made to disturb Execution of the Common Law or to manace the people that they may not pursue the Law that Ye do their Bodies to be Arrested and put in prison and in case they be such that Ye may not Arrest them that Ye certifie the King of their names and of their Misprision hastily so that he may thereof ordain a covenable remedie And that You by Your selfe nor by other privily nor apertly maintain any Plea or quarrel hanging in the Kings Court or else where in the Countrie And that Ye denie to no man common right by the Kings Letters nor none other mans nor for none other cause and in case any Letters come to You contrarie to the Law that You do nothing by such lett but certifie the King thereof and go forth to do the Law notwithstanding the same Letters And that Ye shall do and procure the profit of the King and of his Crown with all things where Ye may reasonably do the same And in case Ye be from henceforth found in default in any of the points aforesaid Ye shall be at the Kings Will of Body Lands Goods thereof to be done as shall please him As God You help and all Saints Anno 18. Edward 3. Stat. 3. Expost and Quer. If Atheists can perswade Christians that this Oath was no binding for them that had taken it even the Wise Learned Reverend Judges Sages Scientissimous Interpreters of the Laws of England sufficient to keep them within the compass of their Oath Law and Knowledges Shall not Christians perswade themselves that it is a sufficient Confession Declaration and judgement of their own mouths that made it that their forfeitures viz. their Lives Lands and Goods in case of their breach of any point of this Oath are now immediately in the power of the State to dispose of to the publique use at their pleasures without any further Proces or proceedings in Law but onely to give Order and Warrant to Arrest the persons of such Offendors to stand to their censures and to Sequester their Estates and to divide them to the said use accordingly Did Lords ever use any more Law than their own Wills when they Sequestred and punished their villains Had Lords any more Law Right or Reason to Sequester and punish their villains at their own Wills but for that their villains did take their Lands upon conditions to do those services which they and their Lords agreed upon and gave their Lords their Oaths as their greatest bonds to perform those conditions or in case of breach to suffer their Lords to repossess their Lands with the forfeitures of their Goods which they gained and their Lives which they sustained upon the same Was the Oath of a Villain though made by Parliament to the end that Lords should be well served by their Slaves in their private and meanest Offices of as considerable consequence to be observed or in default thereof their forfeitures to be executed as the Oath of Judges made and Confirmed by several Parliaments to the end that the common-wealth should be well served by their Justices in their publike and most honourable if rightly served Offices of Judicature and administration of Justice Are not such Villains as dare incroach not onely upon their Lords Lands and Estates but also upon their Lives and Liberties dangerous transcendent Hyper-Prelatical Usurpers Are not such Usurpers intollerable mischiefs in a Common-wealth Who being sworn servants to the Common-wealth as by this Oath it appeareth the Kings Justices were make all the Common-wealth their servants to attend their Trains at Westminster at their pleasures And all Prisoners for Debt not onely their own Villains but also Villains to their Villainous Goalors and Slaves to their Slaves Are not the meanest of the Free-People of England interessed in the due execution of Justice to which these Judges were sworn as well to them as to Kings and consequently ought they not to be such Lords as dare and will take the forfeitures of such Villains as do them daily Injustice Is not this Oath a sufficient Evidence in it self that the takers of it have do dayly break it cause all others that have or do break it to do so likewise Since Kings and People have wholly referred themselves and their Estates not onely to the Justice of their Judges but also to their fatherly advertisements and admonitions whereby they ought not to suffer any that depend upon them to err through ignorance and they contrariwise admonish none not to offend but suffer and cause more to offend than willingly and wittingly would and so do for want of such admonitions much
learn the Laws at their perils therefore If Ignorance were a plea shall knowledge be excused Professors of knowledg nay such as ingross that Profession from all others nay more such as are the onely causers and punishers of all other mens Ignorance It appeareth that this Sentence was Denounced in the time of King Hen. 3d. Now followeth another Denounced upon the said Confirmation made in the 25th year of King 8d 1o. viz. In the Name of the Father Excom 2. the Son and the Holy Ghost Amen Whereas our Sovereign Lord the King to the Honour of God and Holy Church and for the common profit of the Realm hath granted for him and his Heirs for ever these Articles above written Robert Arch-Bishop of Cauterbury 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 injoyn all persons of what Estates soever they be that they and every of them as much as in them is shall uphold and maintain these Articles granted by our Sovereign 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 any wise assent to resist or break those Ordinances or go about it by word or deed openly or privily by any manner of pretence or colour We the foresaid Arch-Bishop by our Authority in this Writing expressed do Excommunicate and accurse and from the Lord Jesu Christ and from all the company of Heaven and from all all the Sacraments of Holy Church do sequester and exclude Doth not the word Hereafter Expost Q. 1 extend to all successions and implie a Duration as long as there be a Mag. Charta and a breaker of it Do not Parliamentarie Oaths as well as their Laws include absents and futures as well as present If neither Oaths nor Excommunications be obligatorie to Atheists shall not their hands and seals bind them and their Heirs and Executors after them as common Bonds signed and sealed between private parties commonly do And more specially such as take upon them the sole Execution and Administration of the Laws Liberties and Freehold of England Shall not Charters of Parliament made signed sealed and confirmed by Authoritie of Parliaments bind all Subjects their Heirs Executors and Administrators as well and as far as private Charters of Feofments shall bind their Contractors and their Heirs c. Nay as far as Acts of Parliament can bind till repealed Is not every Court called Curia of the Care it ought to have to execute that charge it undertaketh and not to exact and raise Fees c. for discharging themselves of all their said Obligations to do even Justice to all men and to force men to pay those exactions even for doing injustice If all before written be not sufficient to discover that to be true and that therefore the Lives Lands Goods possessed by Judges Lawyers all or most of them are in the States power to seize into their hands to the use of the Common-wealth as aforesaid let us look a little further and we shall find more that may And first the Statute called Articuli super Chartas viz. Stat. of Artic. on the great Chart. A. 28. Ed. 1. Articles upon the great Charters made 28. of Ed. 1. viz. the same year as the Confirmation at large which consisteth of 38. chapters of Magna Charta was made proveth further as followeth For as much as the Articles of the great Chartâ—r of the Liberties of England Preamble and of the Charter of the Forrest the which King Henry Father to our Sovereing Lord the King granted to his People for the Weal of his Realm have not been heretofore observed ne kept and all because there was no punishment executed upon them which offended against the points of the Charters before mentioned Our Sovereign Lord the King hath again granted revived confirmed them at the requests of his Prelates Earls Barons assembled in His Parliament holden at Westminster in the â—8 year of his reign And hath ordained enacted and established certain Articles against all them that offend contrary to the points of the said Charters or any part of them or that in any wist transgress them in the form that ensueth viz. First of all That from henceforth the great Charter of the Liberties of England granted to all the Commonaltie of the Realm and the Charter of Forrest in like manner granted shall be observed kept maintained in every point in as ample wise as the King hath granted renued and confirmed them by this Chart. And that the Charter be delivered to every Sheriff of England under the Kings Seal to be read four times in the year before the people in the full County that is to wit the next County day after the Feast of S. Michael and the next County day after the Feast of the Circumcision and after Easter and after the Feast of S. John Baptist And for these two Charters to be firmly observed in every point and Article where before no remedy was at the Common Law there shall be chosen in every Shire Court by the Commonaltie of the same shire three substantial men Knights Justices of Oyer Term. or other lawfull wise and well disposed Persons to be Iustices which shall be assigned by the Kings Letters Patents under the great Seal to hear and determine without any other Writ but onely their Commission such plaints as shall be made upon all those that commit or offend against any point contained in the aforesaid Charters in the Shires where they be assigned as well in Franchises as without and as well for the Kings servants out of their places as for other And to hear the plaints from day to day without any delay and to determine them without allowing the delays which be at the Common Law And the same Knights shall have power to punish all such as shal be attainted of any Trespass done contrary to any point of the two said Charters where no remedy was before at the Common Law as before is said by Imprisonment or by Fine or by Amerciament according to the Trespass Nevertheless the King nor none of his Councel that made this Ordinance intend that by virtue hereof any of the foresaid Knights shall hold any manner of Plea by power for to admit any suit in such cases wherein there hath been remedy provided in times passed after the course of the Common Law by writ Nor also that the Common Law should be prejudiced nor the Ch. aforesaid in any point And the K. Willeth that if all three be not present or cannot at all times attend to do their Office in form aforesaid the King commandeth that two of them shall do it And it is Ordained that the Kings Sheriffs and Bailiffs shall be attendant to do the commandments of
the foresaid Iustices as far forth as appertaineth unto their Offices And besides these things granted upon the Articles of the Charters aforesaid The King of his special Grace for redress of the grievances that the people hath sustained by reason of his Wars and for the amendment of their Estate to the intern that they may be the more ready to do him service and the more willing to assist and aid him in time of need hath granted certain Articles the which he supposeth shall not onely be observed of his leige people but also shall be as much profitable or more than of the Articles heretofore granted One of the causes for the making this Act L. Coke f. 537 538 539. was saith the Lord Coke as in the Preamble is suggested that there was no certain punishment in many points established by the said Charters against the violators of the same which also by this Act saith he is remedied And the word People here saith he doth include all the Kings Subjects c. And again the word Pain ne fuit estable some read saith he Pain ne fuit execute and that is true in effect but the Original is Pain ne fuit estable that is no pain was set down certain And saith he fol. 539. This Act had but the force of a Charter until confirmed by this Parliament the 34th Ed. 1. And that these Charters should be read four times in the year in full County here is an order taken for the publishing And Ou remedie ne fuit avant c. is to be construed saith he where no Action was given by the Kings Writ to be pursued at Common Law c. Again here saith he for the better Execution of those glorious two Lights Magna Charta and Charta Forestae a new Court and new Justices were appointed c. Again saith he these clauses against the Kings Servants out of their places as well as others And to hear the Plaints without delay day by day and to determine them without admitting such delaies as be at Common Law was the first ground of the raising of the Justices called Trail Baston and their Courts so called in respect of their precipitate proceedings from day to day without such convenient leisure and time as Common Law allowed c. they in the end had such Authoritie as Justices in Eyer but albeit they had their Authoritie by Act of Parliament yet if they erred in judgement a Writ of Error did lie by the general Rule of the Common Law to reverse the Judgement in the Kings-Bench which being once resolved and known and their Jurisdiction fettered with so many limitations their Authoritie by little and little vanishâ—d Expost and Quer. Was there any certain Pain established by this Statute against the violators of Magna Charta other than by Commission in Eyer that the Justices might determine and punish the Offendors by Imprisonments Fines or Amerciaments according to the Trespass Ought not the Justices of the Kings-Bench to have so punished all such as were Indicted before Sheriffs or Justices in Eyer who had power to inquire and certifie them of all such Offendors and Offences against Magna Charta by the Statute of Marlebridge 51. Hen. 3d Doth not the Lord Coke say elsewhere That all Statutes ought to be construed so as that there should be no failer of Justice should not the Justices of the Kings-Bench have construed Magna Charta so Doth not the 14th chap. of Mag. Charta expresly direct That all offendors ought to be Amercied by their equals according to the quantitie of the Trespass Doth the Lord Coke speak truth when he saith this Statute gave any man Remedie for the certaintie of the punishment other than Magna Charta did before Was it not made more uncertain by referring it to the Justices in Eyers discretion whether Amerciaments Fyne or Imprisonment Doth he not confess plainly when he saith It is true in effect that the Pain was not Executed as some read instead of the Pain was not Established That it was the fault of the Justices of the Kings-Bench in not Executing the Pain of Amercying c. as they might and ought to have done was the cause of Impowering the Justices in Eyer who were but Enquirers before now to determine and punish such Offendors and Offences as they did forbear viz. The Kings Servants with whom by this time they of the Kings-Bench tampered for their Offices And was it not for the same cause the people were Declared to be choosers of Justices in Eyer And doth not the Lord Coke shew a great spight between himself and his brethren whom he would have to be ancient and the Justices in Eyer whom he calleth a new Court and new Justices And shew his Memory to be weak as his Envy was strong when he is forced to give himself the Lye either here or in his Exposition of the Stat. of Marlebridge where he saith They were then Justices and a court though but for Inquirie And upon the 23th Chap. of Magna Charta he saith they used before that time to give charge to all Juries concerning Wears c. Doth not the Lord Coke say fol. 235. That Bracton wrote before the making West 1. which was 3. Ed. 1 And doth not Bracton lib. 3. cap. 11 12 and 13. say Justices in Eyer were before his time Doth not Camden in his Britannia pag. 104. say They were Instituted by King Hen. 2 Doth not Hoveden in his Annais part poster fol. 113. b. confirm the same And add that K. Hen. 2. divided the Realm in six parts setled threâ— Justices in Eyer to every part whose names he relateth And doth not the Mirror of Justice lib. 3o. Tit. 1o. Justice in Eyer declare their power at large And as for their Election by the people doth he not say fol. 538. That Magna charta c. containeth the substance of all that is contained in these Articles And doth he not say in his Preamble That Magna Charta is an Act declarative of the ancient Laws and Customs of England before it and no introductive of any new And fol. 558. That of ancient time before the making of this Act all such Officers or Ministers as were instituted either for Preservation of the Peace of the County or for execution of Justice because it concerned all the Subjects of that County and they had a great interest in the due and just exercise of their places were by force of the Kings Writs in every several County chosen in full and open County by the Free-holders of the same County Again saith he So it was then and yet is of Coroners and so it was then and yet is of Knights of the Shire for Parliaments and of the Verdors of a Forest and likewise it was of ancient time of the Sheriff of the County and restored by this Act but this is altered by divers Acts of Parliament Now were not Justices in Eyer therefore