have forthwith granted unto him a writ of Habeas Corpus to be directed generally unto all and every Sheriffs Gaoler Minister Officer or other person in whose custody the party so committed or restrained shall be and the Sheriffs Gaoler Minister Officer or other person in whose custody the party so committed or restrained shall be shall at the return of the said writ and according to the command thereof upon due and convenient notice thereof given unto him at the charge of the party who requireth or procureth such Writ and upon security by his own bond given to pay the charge of carrying back the prisoner if he shall be remanded by the Court to which he shall be brought as in like cases hath been used such charges of bringing up and carrying back the prisoner to be alwayes ordered by the Court if any difference shall arise thereabout bring or cause to be brought the body of the said party so committed or restrained unto and before the Iudges or Iustices of the said Court from whence the same writ shall issue in open Court and shall then likewise certifie the true cause of his deteinour or imprisonment and thereupon the Court within three Court dayes after such return made and delivered in open Court shall proceed to examine or determine whether the cause of such Commitment appearing upon the said return be just and legall or not and shall thereupon doe what to iustice shall appertain either by delivering bailing or remanding the prisoner And if any thing shall be otherwise wilfully done or omitted to be done by any Iudge Justice Officer or other person afore mentioned contrary to the direction and true meaning hereof That then such person so offending shall forfeit to the party grieved his trebble dammages to be recovered by such meanes and in such manner as is formerly in this Act limitted and appointed for the like penaltie to be sued for and recovered Provided alwayes and be it enacted That this Act and the severall Clauses therein contained shall be taken and expounded to extend only to the Court of Star-chamber and to the said Courts holden before the President and Councell in the Marches of Wales and before the President and Councell in the Northern parts And also to the Court commonly called the Court of the Dutchy of Lancaster holden before the Chancellor and Councell of that Court And also in the Court of Exchequer of the County Palatine of Chester held before the Chamberlain and Councell of that Court And to all Courts of like Jurisdiction to be hereafter erected ordained constituted or appointed as aforesaid And to the warrants and Directions of the Councell-board and to the Commitments restraints and imprisonments of any person or persons made commanded or awarded by the Kings Majestie his Heires or Successours in their own person or by the Lords and others of the Privie Councell and every one of them And lastly provided and be it enacted That no person or persons shall be sued impleaded molested or troubled for any offence against this present Act unlesse the party supposed to have to offended shall be sued or impleaded for the same within of two yeares at the most after such time wherein the said offence shall be committed Anno XVII Caroli Regis An Act for the declaring unlawfull and void the late proceedings touching Ship money and for the vacating of all Records and Processe concerning the same VVHereas divers Writs of late time issued under the Great Seal of England commonly called Shipwrits for the charging of the Ports Towns Cities Boroughs and Counties of this Realm respectively to provide and furnish certain Ships for his Majesties service And whereas upon the execution of the same Writs and Returnes of Certioraries thereupon made and the sending the same by Mittimus into the Court of Exchequer Processe hath bin thence made against sundry persons pretended to be charged by way of contribution for the making up of certain sums assessed for the providing of the said Ships and in especiall in Easter Tearm in the thirteenth yeare of the Reign of our Soveraign Lord the King that now is a Writ of Scire facias was awarded out of the Court of Exchequer to the then Sheriffe of BVCKINGHAM-SHIRE against IOHN HAMDEN Esquire to appeare and shew cause why hee should not be charged with a certain summe so assessed upon him upon whose appearance and demurrer to the proceedings therein the Barons of the Exchequer adiourned the same case into the Exchequer Chamber where it was solemnly argued divers dayes and at length it was there agreed by the greater part of all the Justiâ—es of the Courts of Kings Bench and Common Pleas and of the Barons of the Exchequer there assembled that the said Iohn Hambden should be charged with the said summe so as aforesaid assessed on him The maine grounds and reasons of the said Iustices and Barons which so agreed being that when the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger the King might by writ under the Great Seale of England command all his Subiects of this his Kingdom at their charge to provide and furnish such number of Ships with Men Victualls and Munition and for such time as the King should think sit for the defence and safegard of the Kingdome from such danger and perill and that by Law the King might compell the doing thereof in case of refusall or refractarinesse and that the King is the sole Iudge both of the danger and when and how the same is to be prevented avoided according to which grounds reasons aâ— the Iustices of the said courts of Kings Bench CoÌ„mon Pleas the said Barons of the Exchequer having bin formerly consulted with by his Majestis command had set their hands to an extraiudiciall opinion expressed to the same purpose which opinion with their names thereunto was also by his Maiesties command inrolled in the Courts of Chancery Kings Bench Common Pleas and Exchequer and likewise entred among the Remembrances of the Court of Star-Chamber and according to the said agreement of the said Iustices and Barons judgement was given by the Barons of the Exchequer that the said IOHN HAMPDEN should be charged with the said summe so assessed on him And whereas some other Actions and Processe depend and have depended in the said Court of Exchequer and in some other Courts against other persons for the like kind of charge grounded upon the said Writs commonly called SHIPWRITS all which Writs and proceedings as aforesaid were VTTERLY against the Law of the Land Be it therefore declared and enacted by the Kings most Excellent Maiestie and the Lords and Commons in this present Parliament assembled and by the authority of the same That the said charge imposed upon the Subiect for the providing and furnishing of Ships commonly called Ship-money and the said extraiudiciall opinion of the said Iustices and Barons and the said Writs and every of
protection of the Law and ought not to be condemned unheard neither agreeth it with the honour and justice of this Court to deny Councell to plead and open their Clyents cases as was done in your petitioners case which your petitioner hopes you will rectifie and alow his Councel to be reheard and to set forth the sufficiencie in Law of his Plea and Answer whereby your petitioner may not have cause or occasion to Appeale from this Court or complaine of you to the Parliament for obstructing of Justice which if your petitioner receive not timely redresse and reliefe in the Promises he must be constrained to do That without ever any order or further processe serving the said Mr. Hoyle for want of further answer hath prosecuted severall processes of contempts against your petitioner and threatned to lay your petitioner in Goale upon a Commssion of Rebellion for the same and hath served your petitioner with a Subpena for forty shillings cost upon your petitioners first plea and answer which Mr. Hoyle will without doubt do if your honour give not present order for stay of further proceedings upon the said last Subpena and processe of contempt already taken out against your petitioner Your Petitioner therefore humbly prayeth that you wil be pleased for the love and honour of justice and removeing the cause of your petitioners appeale from this Court and complaining of you that you will give direction for stay of the said cost and proceedings upon the said processes of contempts against your petitioner and that you wil declare and order that your Petitioners councel may be reheard without check or offence and allowed freely to shew out to the Court the sufficiencie in Law of your petitioners plea and answer to the end there may not be a failer of justice through you and your petitioner left without relief or remedy by being denied to be heard upon the mirit and equity of his cause according to Law which in the worst of times by the worst Iudges was never done to any either in the case of ship-money or any other cause as Burton Prinn and Bastwicks cases all which your petitioner refereth to your honourable consideration And prayeth as before he hath prayed c. William Browne To the right honourable the Commmons assembled in Parliament the humble petition of Will. Brown of Stepney alias Steben heath in the County of Midlesex SHEWETH THat Josua Hoyle Vicar of the parish of Stepney aforesaid in Michaelmas terme last exhibited his bill in the Court of exchequer against your petitioner and divers other parishioners there for substraction of tythes to which bill your petitioner by his learned councell pleaded and answered the same terme but the said Mr. Hoyle obtained an order from that Court for your petitioner to shew cause why his plea and answer should not be taken of the file as scandalous That your petitioner according to the order of that Court the 18. May last by his counsell Mr. NORBERY and Mr. KING offered to the Court to maintaine his said plea and answer to be good and sufficient in Law but Baron Atkins one of the Barons of that Court would not suffer your petitioners councel to open your petitioners cause in a threatning manner telling them that the Councellour who subscribed your petitioners Plea and answer should never be allowed in that Court and if they meaning Mr. NORBERY and Mr. KING or any other Councellour did appeare in any such cause they should never againe plead in that Court and so your petitioners said councell were overawed and silenced that without further heareing or debate the Court adjudged your petitioners plea and answer scandalous and futher ordered Mr. Fage who signed the same his hand should never be allowed to any pleadings in that Court and your petitioner to pay forty shillings cost to Mr. Hoyle as by the order in the Court in that cause will appeare which doing of the said Baron Atkins and the said last recited Order are contrary to the rule of justice and the great Charter of Liberty wherein it is said Iustice and Right shall de denied to no man That the said Mr. Hoyle since without ever serving the said Order upon your Petitioner having procured severall processes of contempts against him for want of further answer and served him with a Subpena for the 40. s. cost your petitioner thereupon having petitioned the Barons of that Court for justice and to have libertie to shew forth to the Court the sufficiencie in law of the said plea and answer which Mr. NORBERY and Mr. KING had before undertaken to your petitioner to doe and offered to the Court if they might have been heard as they were not to have maintained for good and sufficient in law which petition hereunto annexed Baron Trevers having read and acquainted his Brother Atkins with the contents thereof Baron Atkins replyed and said let Brown complain if he will I have done him justice his businesse shall be no more heard And thus your Petitioner being deprived and destitute of all meanes of obtaining right and justice in that Court is constrained for his own safetie to forsake his own house and familie and live as an exile and fugitive Mr. Hoyle threatning to cast him into prison upon the said Barons Order which doubtlesse he will doe to your petitioners undoing unlesse your petitioner be protected by the justice of this honourable house That your petitioner hath largely and many wayes manifested his good affection to the Parliament in his free and voluntary gifts and contributions over and above his abilitie and by his ready payment of all taxes and assessements having long voluntarily served the Parliament in this war against the enemy to the often endangering his life and the much impoverishing his estate having lost 16. Horses in the Parliaments service for which he hath not had one penny satisfaction besides almost 200. l. due to him in Arrears for his service as a Wagoner That as your Petitioner is informed Mr. Hoyle by law cannot sue your petitioner in any Court for substraction of Tyths then in the Court Christian so called * * 2. 3. Ed. 6. 13. Coo. li. 2. fol. 43. the same being now taken away by authority of Parliament * * See the act of the 17. of C.R. for abolution of Ecclesiastical jurisdiction And so Mr. Hoyle if in case the same were due as they are not he hath no meanes or the recovery of the same but by the Ordinance of this present Parliament which your petitioner did never oppose whensoever the said Mr. Hoyle did take your petitioners goods upon the same as sometimes he did amounting to a considerable value Your Petitioner therefore humbly prayeth this honourable House will be pleased to take your Petitioner under protection to stay the contempts and illegall proceedings of Mr. Hoyle in that Court against your petitioner and to call the said Barons of the Exchequer and in particular Baron
times a year and more often if need be Also there shall be assigned good and lawfull men in every County to keep the peace And at the time of the assignments 33. Ed. 1 30. 20. Ed. 3. 6. Fitz. N. B. fo 251. 1. Ed. 3. 16. 18. Ed. 3. â— 34. Ed. 3. 1. 13. R. 2. 7. mention shall he made that such as shall be indicted or taken by the said keepers of the Peace shall not be let to mainprise by the Sheriffes nor by none other ministers if they be not mainpernable by the Law Not that such us shall be indicted shall not be deliveâ—ed but at the Common Law And the Iustices assigned to deliver the Gaoles shall have power to deliver the same Gaoles of those that shall be indicted before the keepers of the peace And that the said keepers shall send their indictments before the Iustices and they shall have power to inquire of Sheriffes Gaolers and other in whose ward such indicted persons shall be if they make deliverance or let to mainprise any so indicted which be not mainpernable and to punish the said Sheriffes Gaolers and others if they doe any thing against this Act. The 4. of Ed. 3. Ch. 10. fol. 122. Sheriffes Gâ—olers shal receive offenders without any thing taking ITem whereas in times past Sheriffes and gaolers of Gaoles would not receive theeves persons appealed indicted or found with the maner taken and attached by the Constables and townships without taking great fines and ransomes of them for their receit whereby the said Constables and Townships have been unwilling to take thieves and felons because of such extream charges and the theeves and the felons the more incouraged to offend It is inacted that the Sheriffes and Gaolers shall receive and safely keep in prison from henceforth such theeves and felons 3. E. 1. 26. 11. Ed 4. fol. 4. 32. H 6 10. by the delivery of the Constables and townships without taking any thing for the receipt And the Iustices assigned to deliver the Gaole shall have power to heare their complaints that will complain upon the Sheriffes and Gaolers in such case and moreover to punish the Sheriffes and Gaolers â—f they be found guilty The 4. of Edward the 3. Chap. 14. fol. 122. A Parliament shall be holden once every yeare ITem it is accorded that a Parliament shall be holden every yeare once and more often if need be Stat. 36. â—d 3. 10. The 14. of Edward the 3. Chap. 5. fol. 133. Delayes of iudgement in other Courts shall be redressed in Parliament ITem because divers mischiefes have hapned for that in divers places as well as in the Chancery as in the Kings Bench the common Bench and in the Eschequer before the Iustices assigned and other Iustices to heare and determine deputed the judgements have been delayed sometime by difficulty and sometime by divers opinions of the Iudges and sometime for some other cause It is assented established and accorded that from henceforth at every Parliament shall be chosen a Prelate two Earles and two Barons which shall have commission and power of the King 2 H. 7. fo 19 22. Ed. 3. fo 3. to heare by petition delivered to them the complaints of all those that will complain them of such delayes or grievances done to them and they shall have power to cause to come before them at Westminster or else where the places of any of them shall be the â—â—nor of records and processes of such judgements so delayed and to cause the same Iustices to come before them which shall be then present to heare their cause and reasons of such delayes Which cause and reason so heard by good advice of themselves the Chancellor Treasurer the Iustices â—f the one Bench and of the other and other of the Kings Councell as many and such as they shall thinke convenient shall proceed to take a good accord and make a good judgement And according to the same accord so taken the tenor of the said record together with the judgement which shall be accorded shall be remanded before the Iustices before whom the plea did depend And that they hastily goe to give judgement according to the same record And in case it seemeth to them that the difficultie be so great that it may not well be determined with out assent of the Parliament that the said tenor or tenors shall be brought by the said Prelates Earles and Barons unto the next Parliament and there shall be a finall accord taken what judgement ought to be given in this case And according to this accord it shall be commanded to the Iudges before whom the plea did depend that they shall proceed to give judgement without delay And to begin to doe remedy upon this ordinance It is assented that a commission and power shall be granted to the Arch-Bishop of Canterbury the Earles of Arundell and Huntington the Lord of Wake and the Lord Raise Basset to endure till the next Parliament And though the ministers have made an oath before this time yet neverthelesse to remember them of the same oath It is assented that as well the chancellor treasurer keeper of the privie seale the Iustices of the one Bench and of the other the Chancellor Barons of the Eschequer as the Iustices assigned and all they that doe meddle in the said places under them by the advice of the same Arch-Bishop Earles and Barons shall make an oath well and lawfully to serve the King and his people And by the advice of said Prelate Earls and Barons be it ordained to increase the number of Ministers when need shal be them to diminish in the same manner And so from time to time when officers shal be newly put in the said offices they shal be sworn in the same maner St. 27 El. 8 Regist fo 17. Rast Pla. fo 30â— The Oaths of the Iustices being made Anno 18. Ed. 3. Anno Domini 1344. fol. â—44 YE shall sweare that well and lawfully ye shall serve our Lord the King and his people in the office of Iustice and that lawfully ye shall councell the King in his businesse and that ye shall not councell nor assent to any thing which may turne him in damage or disherison by any maner way or colour And that ye shall not know the damage or disherison of him whereof ye shall not cause him to be warned by your selfe or by other and that ye shal doe equall Law and execution of right to all his subjects rich or poore without having regard to any person And that ye take not by your self or by other prively nor apartly gift nor reward of gold nor silver not of any other thing which may turne to your profit unlesse it be meat or drinke and that of small value of any man that shall have any plea or processe hanging before you as long as the same processe shall so be hanging nor after for the same cause And that ye take no see
be named in the said Commissions shall be bound by force of this Statute to hold the said Sessions foure times in the yeare as the other Commissioners the which be continually dwelling in the Country but that they shall doe it when they may best aâ—ound it The 13. of Richard the 2. Chap. 6. fol. 225. How many Serieants at Armes there shall be and with what things they shall meddle ITem at the grievous complaint made by the Commons to our Lord the King in this Parliament of the excessive and superfluous number of Serjeants at Armes and of many great extortions and eppressions done by them to the people The King therefore doth will that they shall be discharged and that of them and other there shall be taken of good and sufficient persons to the number of thirty and no more from henceforth And more over the King prohibiteth them to meddle with any thing that toucheth not their office And that they doe no extortion nor oppression to the people upon pain to loose their office and to make a fine and ransome at the Kings pleasure and full satisfaction to the party The 20. of Râ—chard the 2. Chap. 3. folio 243. No man shall sit upon the Bench with the Iustices of Assise ITem the King doth will and forbid that no Lord nor other of the Country little or great shall sit upon the Bench with the Iustices to take Assises in their Sessions in the Counties of England upon great forfeiture to the King and hath charged his said Iustices that they shall not suffer the the contrary to be done The 2. of Henry the 4. Chap. 23. fol. 253. The fees of the Marshall of the Marshallsey of the Kings house ITem whereas the Marshall of the Marshallsey of the Court of our Lord the Kings house in the time of King Edward grand father of our Lord the King that now is and before was wont to take the fees which doe hereafter follow that is to say of every person that commeth by Capias to the said Court foure pence and if he be let to mainprise till his day two pence more and of every person which is impleaded of trespasse and findeth two mainpernors to keep his day till the end of the plea to take for that cause two pence of the defendant and of every person committed to prison by judgement of the Steward in whatsoever manner the same be foure pence of every person delivered of felony and of every felon let to mainprise by the Court foure pence which fees were wont to be taken and paid in full Court as the King hath well perceived by the complaint of the said Commons thereof made in the said Parliament The same our Lord the King to avoid all such wrongs and oppressions to be done to his people against the good customes and usages made and used in the time of his progenitors by the advice assent of the Lords Spiritual Temporal at the supplication of the said Commons hath ordained and established that if the said Marshall or his Officers under him take other fees then above are declared that the same Marshall and every of his Officers shall loose their Offices and pay treble damages to the party greeved and that the party greeved have his suit before the Stewards of the said Court for the time being Also it is ordained and established that no Servitor of Bills that beareth a staffe of the same Court shall take for every mile from the same Court to the same place where he shall do his service any more then one penny and so for 12. miles twelve pence and for to serve a Venire facias 12. homines c. or a Distringes out of the same Court the double And if any of the said Servitors of Bills doe the contrary he shall be punished by imprisonment and make a fine to the King after the discretion of the Stewards of the same Court and also be fore judged the Court and the same Steward shall have power to make proclamation at his comming to the said Court in every Country from time to time of all the articles aforesaid and thereof to execute punishment as afore is said 9. R. 2 5. The 4 of Henry the 4 Chap. 23. fol. 259. Iudgements given shall continue untill they shall be reversed by attaint or error ITem where as well in plea reall as in plea personall after judgement given in the Courts of our Lord the King the parties be made to come upon grievous pain sometime before the King himself sometime before the Kings Councell and sometimes to the Parliament to answr therof of new to the great impoverishing of the parties aforesaid and in the subversion of the Common law of the land it is ordained and established that after judgement given in the Court of our Lord the King 19. H. 6 fo 39. Dyer fo 315. 321. 376. the parties and their heires shall be thereof in peace untill the judgement be undone by attaint or by error if there be errors as hath been used by the Lawes in the time of the Kings progenitors The 5. of Henry the 4. Chap. 5. fol. 261. It shall be felony to cut out the tongue or pull out the eyes of the Kings liege people ITem because that many offenders doe daily heat wound imprison and maime divers of the Kings liege people and after purposely out their tongues or put out their eyes It is ordained and stablished that in such case the offenders that so cutâ—eth tongues or puts out the eyes of any the Kings liege people and that duly proved and found that such deed was done of malice prepensed they shall incur the pain of felony The 5. of Henry the 4. Chap. 10. fol. 263. Iustices of peace shall imprison none but in the Common Gaole ITem because that divers Constables of Castles within the Realme of England be assigned to be Iustices of Peace by Commission of our Lord the King and by colour of the said commissions they take people to whom they beare evill will and imprison them within the said Castles till they have made sine and ransome with the said Constables for their deliverance It is ordained and established Cook li. 9. fo 119. that none be imprisoned by any Iustice of the Peace but only in the common Gaole Saving to Lords and other which have Gaoles their franchise in this case Now comes in some Statutes of palpable Bondage about chusing Parliament men c. The first I shall give you is the 1. of Henry the 5. Chap. 1. fol. 274 What sort of people shall be chosen and who shall be the choosers of the Knights and Burgesses of the Parliament FIrst that thâ— Statuts of the election of the Knights of the Shirs to come to the Parliament be holden and kept in all points adioyning to the same that the Knights of the Shires which from henceforth shall be chosen in every Shire be not chosen unlesse they be
other Court shall directly or indirectly or by any art shift colour or device have take or receive any money fee reward covenant obligation promise agreement or any other thing for his report or Certificate by writing or otherwise upon pain of the forfeiture of 100. l. for every such Report or Certificate and to be deprived of his office and place in the same Court the one moity of the said forfeitures to be our Soveraign Lord the King his heires and successors the other moity to the party grieved which will sue for the same at any time during the said suit or within one yeare after the same cause discontinued or decreed and in his default of such suit to him or them that will sue for the same by originall Writ Bill plaint or Information in his Majesties high Court of Star Chamber or in any his Majesties Courts of Record at Westminster in which suit by Writ Bill plaint or Information no wager of Law Essoin Priviledge Supersedeas Protection or any other delay shall be suffered or admitted Provided neverthelesse that it shall be lawfull for the Clerke to take for his paines for writing of every such Report or Certificate 12. d. for the first side and 2. for every side after and no more upon paine to forfeit 10. s. for every peny taken over and above the said summe to be had and recovered as aforesaid Having given you the most materiall Statutes that I conceive at present makes for your most advantage that I can find in the Statutes at large I shall here insert three or foure Statutes made this present Parliament that in my judgement is extraordinary well worth your knowledge and understanding the first thus followes Anno 17. Caroli Regis An Act for regulating of the Privie Councell and for taking away the Court commonly called the Star Chamber WHereas by the GREAT a a 9. H. 3. 29. CHRTER many times confirmed in Parliament It is inacted that no freeman shall be taken or imprisoned or disseised of his free hold or Liberties or free Customes or be Outlawed or exiled or otherwise destroyed and that the King will not passe upon him or condemne but by lawfull judgement of his Peers or by the Law of the Land And by another Statute made in the b b 5. E 3. 9. fifth yeare of the Reigne of King Edward the third It is inacted That no man shall be attached by any accusation nor fore-judged of life or lim nor his Lands Tenements Goods nor Chattels seised into the Kings hands against the forme of the GREAT CHARTER and the law of the land And by another Statute made in the five and twentieth year c c 25 E. 3. 4. of the reigne of the same King Edward the third It is accorded assented and established that none shall be taken by petition or suggestion made to the King or to his Councell unlesse it be by Indictment or Presentment of good and lawfull people of the same Neighbourhood where such deeds be done in due manner or by Processe made by Writ originall at the Common Law and that none be put out of his Franchise or Free-hold unlesse he be by duty brought in to answer and fore-judged of the same by the course of the Law and if any thing be done against the same it shall be redressed and holden for none And by another Statute made in the 28 year d d 28. E. 3. 3. of the Reign of the same King Edward the third It is amongst other things inacted that no man of what estate or condition soever he be shall be put out of his Lands or Tenements nor taken nor imprisoned nor disinherited without being brought in to answer by due processe of Law And by another Staâ—â—te made in the 42. yeare e e 42. Ed. 3. 3. of the Reign of the said King Edward the third It is enacted that no man be put to answer without presentment before Iustices or matter of Record or by due Processe and Writ originall 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 error And by another Statute made in the 36. year of f f 36. Ed. 3. the same King Edward the third It is amongst other things inacted That all Pleas which shall be pleaded in any courts before any the Kings Iustices 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 And whereas by the Statute made in the third yeare of King Henry the seventh power is given to the Chancellour the Lord Treasurer of England for the time being and the Keeper of the Kings Privie Seale or two of them calling unto them a Bishop and a Temporall Lord of the Kings most honourable Councell and the two chiefe Iustices of the Kings Bench and common Pleas for the time being or other two Iustices in their absence to proceed as in that Act is expressed for the punishment of some particular offences therein mentioned And by the Statute made in the one and twentieth yeare of King Henry the eighth The President of the Councell is associated to ioyne with the Lord Chancellour and other Iudges in the said Statute of the third of Henry the seveth mentioned But the said Iudges 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 then by any law is warranted And forasmuch as all matters examinable or determinable before the said Iudges or in the Court commonly called the Star-Chamber may have their proper remedy and redresse and their due punishment and correction by the Common Law of the Land and in the ordinary course of justice elsewhere And forasmuch as the reasons and motives inducing the erection and continuance of that Court doe now cease and the proceedings Censures and Decrees of that Court have by experience been found to be an intolerable burthen to the Subiect and the meanes to introduce an Arbitrary power and Government And forasmuch as the Councell Table hath of late times assumed unto it self a power to intermeddle in Civill causes and matters only of private interest between party and party and have adventured to determine the Estates and Liberties of the Subiect contrary to the Law of the Land and the rights and priviledges of the Subiect by which great and manifold mischiefes and inconveniencies have arisen and hapned and much incertainty by meanes of such proceedings hath been conceived concerning mens rights and estates For setling whereof and preventing the like in time to come Be it Ordained and Enacted by Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Iurisdiction power and authoritie belonging unto or exercised in
Atkins before you to answer this Petition to the end according to your many Declarations Promises and Protestations iustice may not be obstructed or your Petitioner denyed the benefit of the law or priviledge of a free borne Denizon And the said Barons receive such condigne punishment for their uniust dealing and proceedings against your Petitioner as shall seeme meet and agreeable to the wisedome and iustice of this honourable House The like not any of the Iudges in the worst of times durst ever doe that ever your Petitioner heard of And your Petitioner if he may be protected and allowed by this honourable House to prosecute this Petition he will give securitie to make good the contents thereof And as in duty bounden your Petitioner shall ever pray c. Will. Brown Take notice and marke it well that though tyths are by law to be sued for in Ecclesiasticall Courts only yet trebble damages for none payment of tyths are to be sued for by the same Statute of the 2. and 3. Ed. 6 13. in Civill Courts at the Common Law and therefore the best plea to a bill of trebble damages is that you owe the Parson c no tyths at all and put him to prove the first Here you see what gallant Iustice is to be found amongst the Iudges at Westminster Hall that the pleaders of honest causes cannot be suffered to presse the law freely for their Clyents but must be threatned and commanded to hold their peaces before they have pressed fully either law or reason for those that hire them to be their mouths to doe it for them Is this to performe their oath which you may read before pag. 10. In which they sweare to doe equall law and execution of right to all kinds of men rich and poore without having regard to any person or persons whatsoever And that they shall deny to no man common right by the Kings letters nor none other mans nor for no other cause and in case any letters or commands shall come to them contrary to the law that they shall doe nothing by such letters or commands but proceed to execute the law notwithstanding Or is not this their dealing with Mr. Brown and his Councell a cleare demonstration of their breaking their Oaths and absolutely forswearing themselves And therefore seeing neither Mr. Brown not no man else that complains to the parliament against the injustice of the Iudges can get the least justice against them is not this and other of their visible breaking of their Oaths a true and legall cause to indict them for perjury upon which if conviction follow they are ipso facto disabled for ever to sit Iudges any more or to be witnesses in any causes whatsoever betwixt party and party For this is to be taken notice of that if a Iury bring in a false verdict against the expresse evidence given in unto them that thereupon by law they are to have their houses rased down to the ground and never to be built againe their trees puld up by the roots their ground to lye follow and wast without tillage or use their names and their childrens to be infamous reproachfull and contemptable c. And therefore without doubt the Iudges punishment for palpable iniustice must needs be much more then theirs And an excellent piece of justice and worth the highest commendation it was in King Alfred to hang 44 Iustices in one year as murtherers for their false judgments * See Andrew Horns mirror of iustice in English chap. 5. Sect. 1. pag. 239 240 241. 242. c printed for Maâ— Walbank at Grays Inne gate 1646 where all their crimes are set down which book is most extraordinarily well worth your reading But seeing the Parsons Vicars curates cannot recover their tyths by law they have unjustly illegally got up a custom to come or send their illegall Agents into mens grounds or houses to take away their goods and chattells and men are so foolish as to let them although by law if any man under any pretenc of authority whatever shall dare to endeavour by force to come into a free-mans house unlesse it be under pretence of Treason or Felony committed or suspition of Treason or Felony or to serve an execution after Iudgement for the King the free man may stand upon his guard as against so many Theeves and Robbers and if he shoot or kill them every one I know nothing to the contrary but they have their mends in their own hands and they nor none for them can iustly requâ—e any of him or them that so in his or their own legall defence destroyes them And if they take away your goods as usually they doe you have your remedy at law by way of Replevie to get * Which writs of Replevy you may have out of the Cusitore office belonging to every County but get at one and the same time a writ of Replevin a writ of Al as and a writ of Pluries which last Writ runs with a penaltie and if the Sheriff doe not execute it there lyes an attachment against him and in case he return that the goods are sold and gone before he could repleve them or drove into another County then you may have a Capias in withernam to distrain and take the parties own goods that caused the first goods to be distrained or any of those that had a hand in distraining and no supersedeas whatsoever will lye to controule or dam the writ or hinder the execution of it which writs with all other in force you may read in the Law book called the Register by the help of which you may make all the Parsons in England goe whistle for their Tyths Which Register doth very well deserve your care and pains by authority to be translated into English your goods againe putting in baile to the Sheriffe to answer the law against him that distrained your goods so you shall bring him to a tryal at law to prove his title or clame to your goods and this I conceive to be cleare from the Statutes of Marle bridge in the 52. H. 3. Anno 1267. Chap. 1 2 3 4. 15 21. and 3. 8. 3. Chap. 17. Compared with Sir Edward Cooks Exposition upon those severall Statutes in the 2. part of his Institutes fol. 103 104 105 106 107. 131 132 133. 139 140 141. 193 194. and his discourse in his first part Institutes lib. 2. chap. 12. Sect. 219. fo 143. But that you may not rest in an implicite beliefe I shall give you the fore mentioned Statutes verbatum which thus followeth Chap. 1. fol. 16. The penaltie for taking a distresse wrongfully WHereas at the time of a commotion late stirred up within this Realme and also sithence many great men and divers other refusing to be justified by the King and his Court like as they ought and were wont in the time of the Kings noble progenitors and also in his time but took great revenges and distresses
of their neighbours and of other untill they had amends and fines at their own pleasure And further some of them would not be iustified by the Kings Officers nor would suffer them to make delivery of such distresses as they had taken of their own authority It is provided agreed and granted That all persons as well of high as of low estate shall receive Iustice in the Kings Court And none from henceforth shall take any such revenge or distresse of his own authority without award of our Court though be have dammage or iniury whereby he would have amends of his neighbour either higher or lower And upon the foresaid Article it is provided and granted that if any from henceforth take such revenges of his own authority 11. H. 4. fo 2. 47. Ed. 3. fo 7. 18 Ed. 3. fo 48. 41. Ed. 3. fo 26. 17. Ed. 3. fo 9. without award of the Kings Court as before is said and be convict thereof he shall be punnished by fine and that according to the trespasse And likewise if one neighbour take a distresse of another without award of the Kings Court whereby he hath damage he shall be punished in the same wise and that after the quantitie of the trespasse And neverthelesse sufficient and full amends shall be made to them that have sustained losse by such distresses Chap. 2. None but suiters shall be destrained to come to a Court. MOreover none of what estate so ever he be shall distrain any to come to his Court 41. E. 3. fo 26 47. E. 3. fo 7. Fitz. Barre 281. which is not of his Fee or upon whom he hath no Iurisdiction by reason of Hundred or Bayliwick nor shall take Distresses out of the Fee or place where he hath no Baliwick or Iurisdiction And he that offendeth against this Statute shall be punished in like manner and that according to the quantitie and qualitie of the Trespasse 3 Ed. 1. 16. Regist fo 97. Chap. 3. A Lord shall not pay a Fine for distraining his Tenant IF any of what estate soever he be will not suffer such Distresses as he hath taken to be delivered by the Kings Officers after the Law and Custome of the Realme or will not suffer summons Attachments or Executions of Iudgements given in the Kings Court Fitz. Rascous 20. Bro Trespas 16. 384. Fitz. Dan. 10. Fitz Heriot 5.5 H 7. fo 9.9 H 7. fo 14.10 H. 7. fo 2.10 Ed. 4. fo 7.9 H. 6. fo 20. Fitz. Trespas 196. S. Ed. 1.17 Fitz. N. B. fo 102. c. V. N. B. fol. 48. to be done according to the Law and Custome of the Realme as is aforesaid hee shall be punished in manner aforesaid at one that will not obey the Law and that according to the quantitie of the Offence And if any of what estate soever he be distrain his Tenant for Services and Customes being due unto him or for any other thing for the which the Lord of the Fee hath cause to distraine and after it is found that the same services are not due the Lord shall not therefore be punished by Fine as in the cases as foresaid if he doe suffer the Distresses to be delivered according to the Law and Custome of the Realme but shall be amerced as hitherto hath been used and the Tenant shall recover his damages against him Chap. 4. A distresse shall not be driven out of the County And it shall be reasonable Fitz Barre 120. 275 Fitz. Distresse 1 2. 16. Fitz. Avowry 192. 30. Ass pl 38 29. Ed. 3 fo 23 Kel fo 50. 41. Ed. 3. fo 26. 29 Ed. 3. fo 24. 42. Ed. 3. fo 26. 3. Ed. 1. 16. 1. 2. Ph. M. 12. 51. H 3. 28. Ed. 1. 12. NOne from henceforth shall cause any distresse that he hath taken to be driven out of the County where it was taken And if one neighbour doe so to another of his own authority and without judgement he shall make fine as above is said as for a thing done against the Peace Neverthelesse if the Lord presume so to doe against his Tenant he shall be grievously punished by amerciament Moreover Distresses shall be reasonable and not too great And he that taketh great and unreasonable distresses shall be grievously amerced for the excesse of such distresses Regist fo 97. Rast pla fo 216. Regist fo 98. 183. St. 9. Ed. 2. 9 Fitz. N. B. fo 90. 173 Co. lib. 8. fo 60. 7. H. 7. fo 1. 22. Ed. 4. fo 49. Fitz. Barre 281. Fitz. Trespas 188. Fitz. briefe 511. 842. Fitz. Avowry 87. 221. 231. Chap. 15. fol. 20. In what places Destresses shall not be taken IT shall be lawfull for no man from henceforth for any manner of cause to take Distresses out of his Fee nor in the Kings high way nor in the common street but only to the King or his Officers having speciall authority to doe the same Chap. 20. fol 21. None but the King shall hold plea of false Iudgement NOâ—e from henceforth except our Lord the King shall hold in his Court any Plea of false judgement Fitz. Faux Iudgment 7 8.10 14 26.1â— Ed. 3. ch 6. given in the Court of his Tenants For such Plea specially belongeth to the Crown and Dignitie of our Lord the King Regist fol. 15. V. N. B. fo 16. Fitz. N. B. fo 17. Rast pla fo 342 Coke pla fo 305. Chap. 21. fol 21. who may take Replevins of Distresses Dyer fo 245. Bro. Riots 2â—3 Bro. Parl. 108 Fitz Return de Viscount 17 Co. Inst 145 b. 3. Ed. 1 ch 17. Fitz. N B fo 68. V. N B. fo 44. IT is provided also that if the Beasts of any man betaken and wrongfully withholden the Sheriff after complaint made to him thereof may delâ—ver them without 〈…〉 gainsaying of him thaâ— tooke the Beasts if they were taken out of Liberties And if the Beasts were taken within any Libertie and the Bailiffes of the Libertie will not deliver them then the Sheriffe for default of those Bailiffes shall cause them to be delivered Regist fo 82. c. The 3. of Edward the 1. Chap. 17. fol. 27. The remedie if a destresse be impounded in a Castle or Fortresse IT is provided also that if any from henceforth take the Beasts of other and cause them to be driven into a Castle or Fortresse and there within the close of such Castle or Fortresse doe withhold them against gage and pledges whereupon the beasts be sâ—lemnly demanded by the Sheriff or by some other Bailiffe of the Kings at the suit of the plaintiffe the Sheriffe or Bailiffe taking with him the power of the â—here or Bayliwck doe assay to make Replivin of the Beasts from him that took them or from his Lord or from other being servants of the Lord whatsoever they be that are found in the place whereunto the beasts were chased if any deforce him of the deliverance of the Beasts or that no man be found for the
Sect 71. fol 368. where he positively declares it was the native ancient rights of all Englishmen both by the Statute and Common Law of England to pay no fees at all to any administrators of justice whatsoever or any Clarke or Officeâ— whatsoever officiating under them who were only to receive their Fees Wages and Salleries of the King out of the publique treasure See also 2 part inst fol. 74. 209. 210. The Publique treasure of the Kingdom being betrusted with the King for that and such ends see also that excellent book in English called the Mirror of justice chap. 5. Sect. 1. pag. 231. and Iudge Huttons argument in Mr. Hamdens case against ship money pag. 41. m m See 1. part inst lib. 3. Chap. 7. Sect. 438. fo 260. and the 2. part fo 43 315 590. see my book called the oppressed mans oppressions declared p. 3. Vox plebis p. 47 55. 56. and liberty vindicated against slavery p. 14 15 16 n n in his 2. part iust fol. 42 43. which is exceeding well worth your reading see fo 315 316 590 591. see the mirror of justice in English chap. 5. Sect. 1. devision 53 54 55 57 58. pag. 231. Fiftly and if in case there be no Law extant to punish their Pretended London Agents for doing their duty in prosecuting those iust things that the Parliament hath often declared is the right and due of all the free men in England they ought to goe free from punishment for where there is no Law there can saith the Apostle Paul be no transgression h h see Rom. 4.15 Englands Birth right p. 1. 2 3 4 and the resolved mans resolution p. 24 25 26. but if that Committee or any other power in England shall Commit me or any Commoner in England to prison for disobeying their illegall and Arbitrary Orders it is more then by Law they can doe neither ought I to goe to prison but by force and violence which I cannot resist and I ought to see that the warrant be legall in the form of it that is to say that it be under hand and seale and that he or they in law have power to commit me and that the warrant contain the expresse cause wherefore I am committed and also have a lawfull conclusion viz. and him safely to keep untill he be delivered by due course of Law and not during the pleasure of this House or Committee or till this house or Committee doe further order and I may and ought to read the warrant and to have a copie of it if I demand it without â—aying any thing for it and if I be committed for any crime not mentioned in the statute of 3. Ed. 1 Chap. 15. k k Which Statute you may read before p. 6. and take notice of this that all misdemeanore whatsoever are Baileable I am Baileable which I may and ought to tender in person to the parties that Commit me either if I have them by me before I goe to prison or else as soone as I am in prison or as soon as I can conveniently get fâ— baile for me and in case I be legally committed both for power matter and forme and be kept in prison after I have proffered baile as before I may bring my action of false imprisonment and recover damages therefore but besides know this that there is not one farthing token due to the Serient at Armes or any other Officer whatsoever that carries me to prison neither is there one peny due to any Gaoler whatsoever for fees from me but one bare groat at most I and when I am in prison I ought to be used with all civilitie and humanitie for that great Lawyer Sir Edw. Cook expresly saith m That imprisonment must only be a safe custodie not a punishment and that a prison ought to be for keeping men safe to be duly tryed according to the Law and custome of the Land but not in the least to punish or destroy them or to remaine in it till the party committing please and he further saith in his exposition of the 26. chap. of Magna Charta â—n that the Law of the Land favouring the libertie and freedome of a man from imprisonment and so highly hating the imprisonment of any man whatsoever though committed or accused of heinous and odious crimes that by law it self is not baileable yet in such a case it allowes the prisoner the benefit of the Writ called de odio aria anciently called breve de bono Malo to purchase his liberty by which he saith he ought to have out gratis o o Only this is to be taken notice of that if I commit an offence before the view of a Iudge or Iustices fitting upon the Bench I ought to goe to prison with or by his verball command with any officer of the Court he shall Command me to goe with only he ought to enter a Mittiter send it after me when the Court riseth and I may if I please proffer him baile to answer the Law when he Commits me which he ought not to refuse and if he doe it is false imprisonment if my pretended or reall crime were baileable and my action I may have against him which writ is in force to this day and therefore he saith ibid. that the Iustices of assize Iustices of Oyer and Terminer and of Gaole delivery have not suffered the prisoner to belong detained but at their next comming have given the prisoner full and speedy iustice by due tryall without detaining him long in prison Nay saith he they have been so far from allowance of his detaining in prison without due tryall that it was resolved in the case of the Abot of St. Albon by the whole Court that where the King had granted to the Abott of St. Albon to have a Gaole and to have a Gaole delivery and divers persons were committed to that Gaole for felony and because the Abott would not be at the cost to make deliverance p p In his 2. part inst fo 52 53. in which pages you may read the very words of an Habeas Corpus as also in the 79 80 81. pages of Regall tiranny where you may have them in English as well as Latin he detained them in prison long time without making lawfull deliverance that the Abott had for that cause forfeited his franchise and that the same might be seized into the Kings hand q q Vpon which Habeas Corpus if you be brought up to the barre you ought if wrongfully imprisoned clearely to be discharged without baile and with baile if justly imprisoned if your crime be baileable or else the Iudge forsweares himself for which you may indict him for perjury and also have an action at Law for false imprisonment against him that falsely committed you or they that forced you hither yea and in divers cases against the Gaoler himself who ought not by law upon their perills
this expresse command upon them that they shall in any wise set a King over themselves from amongst their brethren and that they shall not in any wise set a stranger over them which is not their brother but saith God he shall not multiply Horses to himself nor cause the people to return to Aegypt that is to say to vassalage slavery or the house of bondage Neither shall he multiply wives to himself that his heart turne not away neither shall he greatly multiply to himself silver Gold And it shall be when he sitteth upon the Throne of his Kingdome that he shall write him a copy of this law in a book out of that which is before the Priests the Levits And it shall be with him and he shall read therein all the dayes of his life that he might learne to feare the Lord his God to keep all the words of this law and these statutes and do them That his heart be not lifted up above his brethren marke that well and that he turne not aside from the commandement to the right hand or to the left Deut. 17 15 16 17 18 19 20. Here is a cleare declaration by God himself that Kings the single greatest of Magistrates are not to walke and act upon the people by the rules of their own wills but by the law of God which is as binding to them as the meanest of the people and for my part I say and aver that that man whether King or Parliament man that declares himself to be lawlesse was never in that condition of Gods creation but of the Divils And pertinent to this purpose is the compâ—aint of our antient English Lawyer Andrew Horne in his Mirror of Iustice in English ch 5. Sect. the first division the first and second pag. 225. where complaining of the abusions of the Common law he saith the first and chiefe abusion is that the King is above the law whereas he ought to be subiect to it as it is contained in his oath Which as Sir Richard Hutton one of his own Iudges in his Argument in Mr. Iohn Hampdens case against Sip-money pag. 32. which argument was made before this Parliaments doctrine was broached saith that by the Kings Oath he agrees to give consent to such lawes as shall in Parliament be propounded for the profit and good of the Kingdome and be further declares that he is to rule and govern thereby see also the petition of Right in the following pages 1. 2 So that by this it clearely appeares that in his own imagination nor the opinion of his Iudges he is neither omnipotent nor unlimited but his office is an office of trust conferred upon him for the good of the people And therefore saith our forementioned Author Andrew Horne ibim the second abuse of the common Law is That whereas Parliaments ought to bee for the salvation of the soules of Trespassors twice in the yeare at London that they are there but very sildome ond at the pleasure of the King for subsidies and collections of Treasure c. And the Act made the first yeare of this Parliament in the 16. of the present King called an Act for the preventing of inconveniences hapning by the long intermission of Parliaments expresly saith Whereas by the Lawes and Statutes of this Realm the Parliament ought to beholden at least once every yeare for the redresse of Grievances c. Which Lawes and Statutes are the 4. Ed. 3. 14 36. Ed. 3. 10. which are printed virbitum in the following discourse pag. 9 12 and which are expresly ratified and confirmed to be duly kept and observed In which Acts the Parliament are prescribed their worke what to doe which is to maintaine the Lawes and redresse the mischiefes and grievances that dayly happen but not in the least to our destroy Lawes unlesse they give us Letter for them nor to make our mischiefes and grievances greater nor to rob and poule the Kingdome of their treasure by taxations Excize c. and then share it by thousands and ten thousands amongst themselves which iâ— expresly against the Lawes of the kingdome for Feesies in trust and they are no more at most by the Law of this Land can give nothing to themselves and therefore their sharing as daily they doe the Common wealths money amongst themselves is no better then absolute state robbery against whom an indictment or an Action of recovery if not of death †For Andrew Horne declares p. 239 that it is an abuse of the common Law that Iustices and their Officers who kill people by false judgeâ—ent be not destroyed as other murtherers which King Alfrid caused to be done who caused 44 Iustices in one yeare to be hanged as murtherers for their false judgâ—ments and page 241 he saith that he hanged Arnold because he saved Boylife who robbed the people by cullour of distresses whereof some were by selling distresses some by extortions of fines c. ought in equity and reason to lye as well as against robbing and cheating servants and stewards And for them for ever to shelter themselves from the lash and stroak of justice or for ever from being called to accompt for all their Cheats Robberies and murthers by getting the Kings hand to an Act to make them an everlasting Parliament no more lyes in the Kings power Justly and legally to do then to give them power to make us al absolute Vassels and Slaves and to destroy all our Lawes libertys and propertys and when they have so done then to cut the throats of all the men in England besides themselves therefore it behoves the people to keep up the interest of a Parliament but yet annually at least to chuse new Parliament ment to call their predicessors to a strick accompt and for my part J conceive that not onely by the rules of equity and reason but by the strength of the Law of the land which requires a Parliament to be chosen and held at least once every yeare the people that are willing in the severall Sheires Cities and Burrowes may call home their Parliament men and send new ones in their places to call them to accompt and to make Laws to punnish such betrayers of their trust as men as full of unnaturalnesse as those that murder and kill their owne fathers which is an act abhorred even amongst bruts and yet this very thing is acted upon us by the grandees amongst our trustees who themselves have told us that it is as old a law as any is in the Kingdom that the Kingdome never ought to be without a meanes to preserve it selfe 1. part book decl pag. 207. pag. 690. And that those things which are evell in their owne nature cannot be the subject of any command or induce any obligation of obedience upon any man by any authority whatsoever 1. par book p. cl pag. 201. pag. 150. And therefore the conclusion that I draw from Gods subjecting of all men equally
this collectio abroad I shall draw towards a conclusion and let my Country men here reape the benefit of the answer I sent to the querys of some of my friends mentioned in the Epistle Dedicatory which was the originall and principall occasion of my compiling this book which thus followeth By the statute of Westminster the first made in the 3. of Edward 1. chap. 26. which you may reade verbatim in the 7. page of the following collection their are no fees due from any free man of England to any Officer of Iustice whatsoever but what they have immediatly from the publique treasure of the Kingdom for ther sallories or wages and it is aginst a Iudges Oath to take any whose oath you may at large read in the 10. page following read also that remarkable page in the merror of Iustice pag. 258. 233. for the proof of this but especially read the marginall notes in the 69. page following and he that exacts any shal by the formencioned statue pay back again twice as much c. but it is true by some latter statues as the 23. Hen. 6. chap. 10. which you may reade verbatim in the 18.19 following pages and 33. Hen. 6.12 and 21. Hen. 7.17 c. there are some small fees to be paid And also Sir Edward Cook in the 1. part of his institutes lib. 3. chap. 13. sect 70. fol. 368. saith such reasonable fees as have been allowed by the Courts of justice of an ancient time to inferior ministers and attendants of Courts for their labour and atâ—tendance if it be asked and taken of the subject it is no extortion But there is none at all due for entring and recording of apperance nor for the removing upon a Certionary But against Sir Edward Cooks opinion in this particular I offer this to consideration that by the Petition of right the King himselfe with all his Lords cannot justifiably lay a penny upon nor take a penny from the meanest man in England without common consent in Parliament and if the King c. the greater cannot doe it then undeniably the Iudges or justices the lesser can much lesse doe it And besides by the same right that under pretence of dues or fees by their arbitrary wills and pleasures they take one farthing from you or me they may take a penny yea a shilling ye a pound yea a thousand pound and so ad infinitum and so Levell and destroy al properrity of meum tuum see for the power of an act of Parliament the notable arguments of Iudg Hutton Iudg Crooke in the case of ship-money but especialy the Parliaments votes annexed to those arguments for which very thing divers of the Iudges in the case of ship-money were this very Parliament impeached of Treason and the Bishops for makeing their cannons by the Kings single authority to binde their Cleargies pursses without authority of Parliament were for that and the like defunct of all their power ††See Mr. Nat. Fines his notable speech against the Bishops Cannons made 1640 and printed in a book called Speeches and passages prsnted for Will-Crook at Furnivals Inne gate in Holborne 1641. page 49. 50. 51. and the house of Commons vote Dec. 15. 1640. ibim page 328. and the statute made this Parliament that abolished Eccelesiasticall Iurisdiction 2. The presentment is often brought in English but it it must be entred and recorded in lattin by the statute of the â—6 Ed. 3. 15. which you may reade in the 12. following page and no processe is to be awarded but af the presentment is entred and recorded in lattin the presentment must mention the offence and so must the writ or processe as clearly appeares in the last foremencioned most notable and remarkable statute see also Sir Edward Cooks second part instituts upon the 29. chap of Magna Charta fol. 51. 52. 53. see Vox plebis page 37 and the merror of Iustice chap. 5. sect 1. division 98. page 238 nay the last author in his 233 page division 71. saith that it is abuse of the Common Law that any plaint is received to be heard without sureties present to testifie the plaint to be true 3. The Iustices siting upon the bench may verbally commit a man for an offence lying under their cognizance but there must be a Mittitur or Commitment entred upon Record See the 14. Henry 7. fol 8. in Sir Thomas Greenes case See also the 70. page of the following discourse 4. The Iustices of peace cannot continue a man bound above two or three Sessions at most and if they continue him more they may aswell continue him for thirteen and so for thirteen score for it is a vexation and the Law gives him remedie by an action of the case against the Iustices wherein they shall be sined to the King for the vexation and pay damages to the partie Plaintiffe 5. An Indictment for extortion must be in the proper County before the Iustices of Oyer and Terminer or Iustices of the peace 6. Vpon an arrest the Officer must declare at whose suit for what and what returne the processe hath see the Countesse of Rutlands case of arrest in the sixt part of Cookes Reports 7. For a Plea against an Indictment for not comming to Church to heare Common Prayer c. It is framed to your hand in the 20 21 22 â—3 pages of my large Epistle to Col. Henry Martin of the 31. of May 1647. called Rash Oaths to which I referre you 8. Thou go you be committed justly and legally be sure as soon as you are committed if possible you can proffer legall Baile in person to those that commit you but for this I wholly referee the Reader to the 70 71 72. pages of the following discourse in which I have given some directions to my Country men how to guide themselves by the rules of the Law of England in all ordinary molestations that can befall them by Knaves malicious men or Tyrants saving in the point of panniling of Iuries upon them in case they come to any triall for their lives c. and for that point I doe wholly referre the Reader to the 24 25 26. pages of my notable book called the Resolved mans resolution where also the cheats and illegallities of Committees procedings are anotamised and to the 1. part of Sir Edward Cooks Inst lib. 2. chap. 12. Sect. 234 fo 156 157 and his 3. part fo 32. 33. My labours herein I desiâ—e may find a courteous acceptation at the hands of my oppressed friends and Country-men and I have my reward and shall therein reioyce and be incouraged for the future improvement of my poore talent to doe them further service Iohn Lilburne From my causelesse captivitie in the Tower of London upon a now account this 17 of Feb. 1647. For upon the 19. of Ian. last the House of Commons committed me to prison as their prisoner for treasonable and seditious practises against the state And
amerced saving his wainage if he fall into our mercy And none of the said amerciaments shall be assessed but by the oath of honest and lawfull men of the vicinage Earles and Barons shall not be amerced but by their PEERS and after the manner of their offence No man of the Church shall be amerced after the quantity of his spirituall Benefice but after his lay tenements and after the quantity of his offence Fitz Act. sur lest 34. Br. Amercement 2. 25. 33. 32. 53. 65. 10. H. 6. fo 7. 7. H. 6. fo 13. 19. Ed. 4. fo 9. 21. Ed. 4. fo 77. 28. Ass pl. 26. Cook l. 8. fo 28 59. 3. Ed. 1. 6. Chap. 26. Inquisition of Life and Member NOthing from hence shall be given for a â—â—it of Inquisition nor taken of him that prayeth Inquisition of Life or Member but it shall be granted freely and not denyed Stat. 3. Ed. 1. 11. Stat. 13. Ed. 1. 29. Regist fo 133. 134. Chap. 28. Wager of Law shall not be without Witnesse Fitz. Ley 78. Bro. Ley 37. Co. inst fo 168. a. NO Bailife from henceforth shall put any man to his open Law nor to an oath upon his own bare saying without faithfull witnesses brought in for the same Chap. 29. No man shall be condemned without tryall Iustice shall not be sold or deferred 10. Ed. 4. fo 6. Dyer fo 104. Cook li. 5. fo 64 lib. 10. fol. â—4 lib. 11. fo 99. Regist fo 186. Col. pla fo 456. NO Freeman shall be taken or imprisoned or be disseised of his freehold or liberties or free customes or be outlawed or exiled or any otherwise distroyed nor We will not passe upon him nor condemne him but by lawfull judgement of his PEERS or by the law of the land We will sell to no man We will not deny or deferre to any man either justice or right Stat. 2. Ed. 3. 8. Stat. 5. Ed. 3. 9. Stat. 14. lid 3. 14. 28. Ed. 3. 3. Stat 11. R. 2. 10. Cook li. 8 f. 38. 59. Bro. AmerciameÌ„t 6. 9. 11. 13. 20. 25. 27. 28. 31. 32 35. 37. 39. 43. 44. The 3. Edward the 1. fol. 25. There shall be no disturbance of free Election And because Elections ought to be free the King commandeth upon great forfeiture that no man by force of Armes nor by malice or menacing shall disturbe any to make free Election St. 9. Ed. 2.14 The 3. of Edward the 1. Chap. 6. fol. 25. Amercement shall be reasonable and according to the offence ANd that no City Borough nor Town nor any man be amerced without reasonable cause and according to the quantity of his Trespasse that is to say every freeman saving his freehold a Merchant saving his Merchandise a Villain saving his waynage and that by his or their PEERS St. 9. H. 3 14. V. N. B. fo 47. Regist fo 187. The 3. Edward the 1. Chap. 15. fol 27. Which prisoners may be made mainpernable and which not The penalty for unlawfull bailement ANd forasmuch as Sheriffes and other which have taken and kept in prison persons detected of felony and incontinent have let out by replevin such as were not replevisable and have kept in prison such as were replevisable because they would gaine of the one party and grieve the other And forasmuch as before this time it was not determined which persons were replevisable and which not but only those that were taken for the death of man or by commandment of the King Bro. Mainprise 11. 56. 78. Dyer fo 170. Fitz. Mainprise 1. 40. Bro. Mainprise 54 57 59 60 75 78. Cook li. 11. fo 29. Fitz. Mainprise 39. Bro. Main 6. 9. 11. 19. 22. 30. 48. 50. 51 53. 58 63 64. 73. 78 91. 94. 97 or of his Iustices or for the Forest It is provided and by the King commanded that such prisoners as before were outlawed and they which have abiured the realm provers and such as be taken with the maner and those which have broken the Kings prison theeves openly defamed and known and such as be appealed by provers so long as the provers be living if they be not of good name and such as be taken for house burning feloniously done or for false money or for counterfeiting the Kings seale or persons excommunicate taken at the request of the Bishop or for manifest offences or for treason touching the King himselfe shall be in no wise replevisable by the common Writ nor without writ But such as be indicted of Larceny by Enquests taken before Sheriffes or Bailifes by their office or of light suspition or for petty Larceny that amounteth not above the value of 12. pence if they were not guilty of some other Larceny aforetime or guilty of receit of felons or of commandment or force V. N. B. fo 40. V. N. B. fo 41. Regist fo 83. 268. or of aid of felony done or guilty of some other trespasse for which one ought not to lose life or member and a man appealed by a prover after the death of the prover if he be no common theefe nor defamed shall from henceforth be let out by sufficient surety wherof the Sheriffe will be answerable and that without giving ought of their goods And if the Sheriffe or any other let any goe at large by surety that is not replevisable if he be Sheriffe or Constable or any other Baylife of fee which hath keeping oâ— prisons and therefore be attainted he shall lose his fee and office for ever And if the under Shereffe Constable or Baylife of such as have fee for keeping of prisons doe it contrary to the will of his Lord or any other Baylife being not of fee they shal I have three yearet imprisonment and make fine at the Kings pleasure And if any withhold prisoners replevisable after that they have offered sufficient surety he shall pay a grievous amerciament to the King And if he take any reward for the deliverance of such he shall pay double to the prisoner and also shall be in the great mercy of the King St. 27. E. 1. 3. St. 3. H. 7. 31 2. P. M. 13. The 3. of Edward 1. Chap. 26. fol. 30 â—one of the Kings Officers shall commit extortion ANd that no Sheriffe nor other the Kings Officer take any reward to doe his office Rast pla fo 317. Cook Inst 308. b. but shall be paid of that which they take of the King and he that so doth shall yeeld twice as much and shall be punished at the Kings pleasure St. 33. H. 6. 10. 4. â— 3. 10. The 25 of Edward the 1. Chap. 2. 3. 4. fol. 75 76. Iudgement given against the said Charter shall be void ANd we will that if any judgement 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
Chap. 3. The said Charters shall be read in Cathedrall Churches twice in the yeare ANd we will that the same Charters shall be sent under our Seale to Cathedrall Churches throughout our Ralme there to remain and shall be read before the people two times by the yeare 28. Ed. 3. 1. Chap 4. Excommunication shall be pronounced against the breakers of the said charters ANd that all Arch Bishops and Bishops shall pronounce the sentence of Excommunication against all those that by word deed or councell doe contrary to the foresaid Charters or that in any point break or undoe them And that the said curses be twice a yeare denounced and published by the Prelates aforesaid And if the same Prelates or any of them be remisse in the denunciation of the said sentences the Arch Bishops of Canterbury and Yorke for the time being shall compell and distrain them to the execution of their dutyes in forme aforesaid The 28. of Edward the 1. Chap. 1. fol. 80. A confirmation of the great Charter and the Charter of the Forest THat is to say That from henceforth the great Charter of the Liberties of England granted to all the Commonalty of the Realme and the Charter of the Forest in like manner granted shall be observed kept and maintained in every point in as ample wise as the King hath granted renewed and confirmed them by his Charters And that the Charters be delivered to every Sheriffe of England under the Kings Scale to be read foure times in the yeare before the people in the full County that is to wit the next County day after the Feast of St. Michael and the next County day after Christmas and at the next County after Easter and at the next County after the Feast of St. Iohn And for these two Charters to be firmely observed in every point and article where before no remedy * * Chap. 8. and 13. was at the Common Law there shall be chosen in every Shire Court by the Commonalty of the same Shire three substantiall Men Knights or other lawfull wise and well disposed persons which shall be Iustices sworne and assigned by the Kings Letters Patents under the great Scale to heare and determine without any other Writ but only their Commission such Plaints as shall be made upon all those that commit or offend against any Point contained in the foresaid Charters in the Shires where they be assigned as well within Franchises as without And as well for the Kings Officers out of their places as for other and to heare the Plaints from day to day without any delay and to determine them without allowing the delayes which be allowed by the Common Law And the same Knights shall have power to punish all such as shall be attainted of any Trespasse done contrary to any point of the foresaid Charters where no remedy was before by the Common Law as before is said by Imprisonment or by ransome or by Amerciament according to the Trespasse c. The 28 of Edward the 1. Chap. 8. fol. 83. The Inhabitants of every County shall make choise of their Sheriffes being not of Fee Stat. 9. E. 2. Stat. 14 E. 3. 7. 28. Ed. 1. 1. THe King hath granted unto his people that they shall have election of their Sheriffes in every Shire where the Shrivalty is not of fee if they lift Chap. 13. The 28. of Edward the 1. Chap. 13. fol. 83. What sort of persons the Commons of Shires shall chuse for their Sheriffes ANd for as much as the King hath granted the election of Sheriffes to the Commons of the Shire the King will that they shall chuse such Sheriffes that shall not charge them and that they shall not put any Officer in authority for rewards or bribes And such as shall not lodge too oft in one place nor with poore persons or men of religion St. 9. E. 2. The Statute of Sherifes The 34. Edward the 1. Chap 4. fol. 91. All Lawes Liberties and Customes confirmed WE will and grant for us and our heires that all Clerkes and lay men of our land shall have their lawes liberties and free Customes as largely and wholly as they have used to have the same at any time when they had them best And if any Statutes have been made by us or our ancestors or any customes brought in contrary to them or any manner article contained in this present Charter we will and grant that such manner of statutes and customes shall be void and frustrate for evermore The 34. of Edward the 3. Chap. 6 fol. 92. The curse of the Church shall be pronounced against the breakers of this Charter ANd for the more assurance of this thing we will and grant that all Arch Bishops and Bishops for ever shall read this present Charter in their Cathedrall Churches twice in the year and upon the reading hereof in every of their Parish Churches shall openly denounce accursed all those that willingly doe procure to be done any thing contrary to the tenour force and effect of this present Charter in any point and article In witnesse of which thing we have set our Scale to this present Charter together with the Seales of the Arch Bishops Bishops c. which voluntarily have sworn that as much as in them is they shall observe the tenour of this present Charter in all causes and articles and shall extend their faithfull aid to the keeping thereof c. The 1. of Edward the 3. Chap. 5. fol. 115. None shall be compelled to goe to war out of the Shire where he dwelleth But c. ITem the King will that no man from henceforth shall be charged to arme himself otherwise then he was wont in the time of his progenitors Kings of England And that no man be compelled to goe out of his shire but where necessity requireth and suddain comming of strange enemies into the Realme And then it shall be done as hath been used in times past for the defence of the Realme St. 15. Ed. 3. 7. St. 4. H. 4. 13. 25. Ed. 3. 8. The 2. Edward the 3. Chap. 8. fol. 118. No commandement under the Kings seale shall disturb or delay justice ITem it is accorded and established that it shall not be commanded by the great Seale nor the little Seale to disturb or delay common right and that though such commandements do come he Iustices shall not therefore leave to doe right in any point St. 9. H. 3. 29. St. 5. Ed. 3. 9. St. 14. Ed. 3.14 The 4. of Edward the 3. Chap. 2. fol. 120. The authority of Justices of Assise Gaole delivery and if the peace ITem it is ordained that good and discreet persons other then of the places if they may be found sufficient shall be assigned in all the Shires of England to take Assises Iuries and certifications and deliver the Gaoles And that the said Iustices shall take the Assises Iuries and certifications and deliver the Gaols at the least three
as long as ye shall be Iustice nor robes of any man great or small but of the King himself And that ye give none advice nor councell to no man great nor small in no case where the King is party And in case that any of what estate or condition they be come before you in your sessions with force and armes or otherwise against the peace or against the forme of the Statute thereof made to disturb execution of the common law or to menace the people 2. Ed. 3. 3. that they may not pursue the Law that yee shall cause their bodies to be arrested and put in prison And in case that be such that yee cannot arrest them that ye certifie the King of their names and of their misprision hastily so that he may therof ordain a convenable remedy And that ye by your selfe nor by other privily nor apertly maintain any plea or quarrell hanging in the Kings Court or elsewhere in the country And that ye deny to no man common right by the Kings letters not none other mans not for none other cause and in case any letters come to you contrary to the law that ye doe nothing by such letters but certifie the King thereof and proceed to execute the law notwithstanding the same letters And that yee shall doe and procure the profit of the King and of his Crown with all things where ye may reasonably doe 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 land and goods thereof to be done as shall please him as God you help and all Saints The 20. of Edward the 3. Chap. â— fol. 14â— The Iustices of both Benches Assise c. shall doe right to all men take no fee but of the King nor give councell where the King is party FIrst we have commanded all our Iustices that they shall from henceforth doe equall Law and execution of right to all our subjects rich and poore without having regard to any person and without omitting to doe right for any letters or commandement which may come to them from us or from any other or by any other cause And if that any letters writs or commandements come to the Iustices or to other deputed to doe 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 Commandements were come to them And they shall certifie us and our Councell of such Commandements which be contrary to the Law as afore is said And to the intent that our Iustices should doe even right to all people in the manner aforesaid without more favour shewing to one then to another we have ordained and caused our said justices to be sworne that they shall not from henceforth as long as they shall be in office of Iustice take fee nor to be of any man but of our self and that they shall take no gift nor reward by themselves nor by other privily nor apertly of any man that hath to doe before them by any way except meat and drink and that of small value and that they shall give no councell to great men or small in case where we be party or which doe or may much us in any point upon pain to be at our will body Lands and goods to doe thereof as shall please us in case they doe contrary And for this cause we have increased the fees of the same our Iustices in such manner as it ought reasonably to suffice them St. 2. Ed. 3 8. St. 11. R. 2. 10. Regist fo 1â—6 The 25 of Edward the 3. Chap. 8. fol. 155. None shall be bound to find men of armes but by tenure or grant by Parliament ITem it is accorded and assented that no man shall be constrained to find men of Armes hoblers nor Archers other then those which hold by such services if it be not by common assent and grant made in Parliament St 1. Ed. 3. 5. St. 4. H 4. 13. The 28. of Edward the 3. Chap. 7. fol. 172. No Sheriffe shall continue in his office above one yeare ITem it is ordained and established that the Sheriffe of the Counties shall be removed every yeare out of their offices so that no Sheriffe that hath been in his office by a yeare shall abide in the same office the year next following 2. H. 7. fol. 5. And that no Commission be made to him thereof or renued for the same yeâ—â—e following St. 14. 8. 3 7. 32. Ed. 3. 9. 23. H. 6. 8. Rast pl. fo 202. The 34. of Edward the 3. Chap. 4. fol. 180. What sort of people shall be returned upon every Iurâ— ITem because that Sheriffes and other ministers often doe array their panels in maner of Inquests of people procured and most far of from the Counties which have no knowledge of the deed whereof the Inquest shall be taken it is accorded that such panels shall be made of the next people which shall not be suspect nor procured And that the Sheriffes Coroners and other ministers which doe against the same shall be punished before the Iustices that take the said Inquest according to the quantity of their Trespasse as well against the King as against the party for the quantity of the damage which he hath suffered in such maner St. 21 〈◊〉 1. St. 28. E. 1. 9. 20. Es 3. 6. 42. Ed. 3. 11. Regist fo 178. Regist pla fo 117. THe 36 of Edward the 3. chap. 10. fol. 186. A Parliament shall be holden once in a yeare ITem for the maintenance of the said Articles and Statutes and redresse of divers mischiefs and grievances which dayly happen d Parliament shall be holden every yeare as an other time was ordained by a Statute St. 4 Ed. 3. 14. The 36. of Edward the 3. chap. 15. fol. 187. Pleas shall be pleaded in the English tongue and inrolled in Latine ITem because it is often shewed to the King by the Prelats Dukes Earles Barons and all the Comminalty of the great mischiefes which have happened to divers of the Realme because the Lawes Customs and Statutes of this Realme be not commonly holden and kept in the same Realm for that they be pleaded shewed judged in the French tongue which is much unknown in the said realm so that the people which do implead or be impleaded in the Kings Court and in the Courts of other have no knowledge nor understanding of that which is said for them or against them by their Serjeants other Pleaders And that reasonably the said Lawes and Customes the rather shall be perceived and known better understood in the tongue used in the said Realm by so much every man of the said Realm
may the better govern himself without offending of the Law and the better keepe save defend his heritage and possessions and in divers regions and countryes where the King the Nobles and other of the said Realm have been good governance and full right is done to every person because that their Lawes and Customes be learned and used in the tongue of the Country The King desiring the good governance and tranqullity of his people and to put out and eschew the harmes and mischiefs which do or may happen in this behalf by the occasions aforesaid hath ordained and established by the assent aforesaid that all Pleas which shall be pleaded in any Courts whatsoever before any of his Iustices whatsoever or in his other places or before any of his other ministers whatsoever or in the Courts and places of any other Lords whatsoever within the Realme shall be pleaded shewed defended answered debated and iudged in the English tongue and that they be entred and inrolled in Latine And that the Lawes and Customes of the same Realme Termes and Processes be holden and kept as they be and have been before this time and that by the ancient tearmes and formes of Pleaders 46 Ed. 3. fo 21. Dyer fo 2 99. Cooke li. 8. fo 163. li. 10 fo 132. Co. inst 304. no man be prejudiced so that the matter of the action be fully shewed in the Declaration and in the Writ And it is accorded by the assent aforesaid that this ordinance Statue of pleading begin and hold place at the fifteenth of S. Hillary next coming The 37. of Edward the 3. chap. 18. fol 190 The order of persuing a Suggestion made to the King ITem though it be contained in the great Charter that no man be taken or imprisoned nor put out of his freehold without processe of the Law never the lesse divers people make false suggestion to the King himselfe as wel for malice as otherwise whereof the King is often grieved St. 9. H 3.29 and divers of the Realm put in damage against the forme of the same Charter Wherefore it is ordained that all they which make such Suggestions shall be sent with the same suggestions before the Chancellor Treasurer and his grand Counsell and that they there finde surety to pursue their suggestions and incurre the same paine that the other should have had if he were attainted in case that his Suggestion he ' found evill St. 38. Ed. 3. 9. And that then processe of the Law be made aganst them without being taken and imprisoned against the form of the said Charter and other Statutes St. 25. Edward 3. 4. 42. Ed. 3. 3. The 42 of Edward the 3. Chap 1. â—093 A confirmation of the great Charter and the Charter of the Forest And a repeale of those Statutes that be made to the contrary AT the Parliament of our Lord the King holden at Westminster the first day of May the two and fortieth yeare of his reigne It is assented and accorded That the great Charter and the Charter of the Forest be holden and kept in all points and if any Statute be made to the contrary that shall be holden for none The 8. of Richard the 2. Chap. 2. fol. 217. No man of Law shall be a Iustice of Assise or Gaole delivery in his own Country ITem it is ordained and assented That no man of â—â—w shall be from henceforth Iustice of Assises or of common deliverances Gaoles in his own Country And that the chiefe Iustice of the common Bench be assigned amongst other to take such Assises and deliver gaoles but as to the chiefe Iustâ—ce of the Kings Bench it shall be as for the most part of an hundred yeares last past was wont to be done St. 13. H. 4 2.33 H. 8.24 The 8. of Richard the 2 Chap. 4. fol. 218 The penaltie if a Iudge or Clerke make any false Entry rase a Roll or change a verdict ITem at the complaint of the said Communalty made to our Lord the King in the Parliament for that great disherison in times past was done of the people and may be done by the false entring of Pleas rasing of Rolles and changing of verdict It is accorded and assented that if any Iudge or Clerkâ— be of such default so that by the same default there ensueth disherison of any of the parties sufficiently convict before the King and his Councell by the manner and forme which to the same our Lord the King and his Councell shall seem reasonable and within two yeares after such default made if the partie grieved be of full age and if he be within age then within two years after that he shal come to his ful age he shal be punished by sine and ransome at the Kings wil and satisfie the party And as to the restitution of the inheritance desired by the said Commons the party grieved shall sue by Writ or otherwise according to the Law if hee see it expedient for him St. 8 H. 6.82 The 12 of Richard the 2. Chap. 10. fol. â—23 How many Iustices of peace there shall be in every County and how often they shall keep their Sessions ITem it is ordained and agreed that in every Commission of the Iustices of Peace there shall be assigned but six Iustices with the Iustices of Assises and that the said six Iustices shall keep their Sessions in every quarter of the yeare at the least and by three dayes if need be upon pain to be punished according to the discretion of the Kings Councell at the suit of every man that will complain And they shall inquire diligently amoâ—g other things touching their offices if the said Majors Bailifes Stewards Constables and Gaolers have duly done execution of the said Ordinances of servants and labourers beggars and vagabonds and shall punish them that be punishable by the said paine of an hundred shâ—llings by the same paine and they that be found in default and which be not punishable by the same pain shall be punished by their discretion And every of the said Iustices shall take for their wages foure shillings ††36. Ed. 3. 12. 14. R. 2. 11. See also the wages of the Clerke of the peace in the Statutes of 27 H. 8. 16. and 5. Eliz. 12. and 13. Eliz. 25. the day for the time of their foresaid Sessions and their Clerke two shillings of the fines and amerciaments rising and comming of the saâ—e Sessions by the hands of the Sheriffes And that the Lords of franchises shall be contributary to the said wages after the rare of their part of sines and amerciaments aforesaid And that no Steward of any Lord be assigned in my of the said Commissions And that no association shall be made to the Iustices of the peace after their first Commission And it is not the intent of this Statute that the Iustices of the one Bench or of the other nor the Serjeants of the Law in case that they shall
resident within the Shire where they shall be chosen the day of the date of the Writ of the summons of the Parliament And that the Kniâ—hts and Esquires and other which shall be choosers of those Knights of the Shires be also resident within the same Shires in manner and forme as is aforesaid Rast pl. fo 446. And moreover it is ordained and established that the Citizens and Burgesses of the Cities and Boroughs be chosen men Citizens and Burgesses resiant dwelling and free of the same cities and boroughs and no other in any wise 7. H. 4. 15. 8 H. 6. 7. 10. H. 6. 2. 23. H. â— 15. The 2. of Henry 5. Chap. 1. and 3. fol. 282. What sort of men shall be Iustices of the Peace FIrst that the Iustices of the peace from henceforth to be made within the Counties of England shall be made of most sufficient persons dwelling in the same counties by the advice of the Chancellor and of the Kings Councell without taking other persons dwelling in forain Counties to execute such office except the Lords and Iustices of Assises now named and to be named by the King and his Councell 1. Ed. 3. 16. 34. Ed. 3. 1. And except all the Kings chiefe Stewarde of the Land and Seigniories of the Duchie of Lancaster in the North parts and in the South for the time being 13. R. 2. 7. Chap. 3. Of what estate those Iurors must be which are to passe touching the life of man plea reall to forty markes damages ITem the King considering the great mischiefes and disherisons which daily happen through all the realm of England as well in case of death of a man as in case of freehold and in other cases by them which passe in enquests in the said cases which be common Iurors and other that have for little to live upon but by such inquests and which have nothing to loose because of their false oaths whereby they offend their conscience the more largely and willing thereof to have correction and amendment 2. H. 7. fo 13. 10. H. 7. fo 14. 9. H. 5. fo 5. 10. H. 6. fo 7. 8. 18. 7. H. 6. fo 44. Dyer fo 144 Cook Inst part 1. 272. a. Rast pl. fo 117. hath ordained and established by assent of the Lords and Commons aforesaid that no person shall be admitted to passe in any enquest upon tryall of the death of a man nor in any enquest betwixt party and party in plea reall nor in plea personall whereof the debt or the damage declared amount to forty marks if the same person have not Land or Tenements of the yearly value of forty shillings above all charges of the same so that it be challenged by the party that any such person so impanelled in the same cases hath not Lands or tenements of the yearly value of forty shillings above the charges as afore is said 28. Ed. 3. 13. 8. H. 6 29. The 8. of Henry the 6. Chap. 7. fol. 304. What sort of men shall be choosers and who shall be chosen Knights of the Parliament ITem Whereas the election of Knights of Shires to come to the Parliament of our Lord the King in many Counties of the Realm of England have now of late been made by very great outragious and excessive number of people dwelling within the same Counties of the Realm of England of the which most part was of people of small substance * * This is a Statute of bondage and lesse of liberty 1. H. 5. 1. 10. H. 6. 2. 6. H. 6. 4. 11. H. 4. 1. 23. H. 6. 15. Rast pla fo 440. and of no value whereof every of them pretended a voice equivalent as to such elections to be made with the most worthy Knights and Esquires dwelling within the same Counties whereby manslaughters riots batteries and divisions among the Gentlemen and other peoples of the same Counties shall very likely rise and be unlesse convenient and due remedy be provided in this behalf Our Lord the King considering the premisses hath provided ordained and established by authority of this present Parliament that the Knights of the Shires to be chosen within the same Realm of England to come to the Parliaments of our Lord the King hereafter to be holden shall be chosen in every County of the Realm of England by people dwelling and resident in the same Counties whereof every one of them shall have land or tenement to the value of forty shillings by the year at least above all charges and that they which shall be chosen shall be dwelling and resident within the same Counties And such as have the greatest number of them that may EXPEND FORTY SHILLINGS by yeare and above as afore is said shall be returned by the Sheriffes of every County Knights for Parliament by Indentures sealed betwixt the said Sheriffes and the said choosers so to be made And every Sheriffe of the Realm of England shall have power by the said authority to examine upon the Evangelists every such choosâ—â— how much he may expend by the yeare And if any Sheriffes reâ—urn Knights to come to the Parliament contrary to the said Ordinance the Iustices of Assises in their Seasions of Assises shall have power by the authority aforesaid thereof to enquire And if by enquest the same he found before the Iustices and the Sheriffes thereof be duly attainted that then the said Sheriffe shall incuraâ—â— pain of an hundred pound to be paid to our Lord the King and also that he have imprisonment by a yeare without being leâ— to mainprise or baile And that the Knights for the Parliament returned contrary to the said Ordinance shall loose their wages 10. H. 6. 2. Provided alwayes that he which cannot expend forty shillings by yeare as afore is said shall in no wise be chooser of the Knights for the Parliament And that in every writ that shall hereafter goe forth to the Sheriffes to choose Knights for the Parliament mention be made of the said Ordinances The 18. of Henry the 6. Chap. 11. fol. 332. Of what yearely value in lands a Iustice of Peace ought to be ITem whereas by Statutes made in the time of the Kings noble Progenitors it was ordained that in every County of England Justices should be assigned of the most worthy of the same counties to keep the peace and to doe other things as in the same Statutes fully is contained 1. Ed. 3. 16 18. Ed. 3. 2. 13. R. 2. 7. 17. R. 2. 10. which Statutes notwithstanding now of late in many Counties of England the greatest number have been deputed and assigned which before this were not wont to be whereof some be of small behaviour by whom the people will not be governed nor ruled and some for their necessity doe great extortion and oppression upon the people whereof great inconveniences be likely to rise daily if the King therefore doe not provide remedy The King willing against such inconveniences to provide
remedy hath ordained and established by authority aforesaid That no Iustice of peace within the Realm of England in any County shall be assigned or deputed if he have not lands or tenements to the value of 20. l. by yeare and if any be ordained hereafter to be Iustices of peace in any County which hath not lands or tenements to the value aforesaid that he thereof shall give knowledge to the Chancellor of England for the time being which shall put another sufficient in his place and and if he give not the said knowledge as before within a moneth after that he hath notice of such Commissions or if he sit or make any warrant or precept by force of such Commissions he shall incur the penalty of 20. l. and neverthelesse be put out of the Commission as before and the King shall have the one half of the said penalty and he that will sue for the King the other half and he that will sue for the King and for himself shall have an action to demand the same penalty by writ of debt at the common Law Provided alwayes that this Ordinance shall not extend to Cities Towns or Boroughs which be Counties incorporate of themselves nor to cities towns or boroughs which have Iustices of peace of persons dwelling in the same by commission or warrant of the King or of his progenitors Provided also that if there be not sufficient persons having lands tenements to the value aforesaid learned in the Law and of good governance within any such County that the Chancellor of England for the time being shall have power to put other discreet persons learned in the Law in such Commissions though they have not lands or tenements to the value aforesaid by his discretion 27. H. 8. chap. 24. The 20. of Henry the 6. Chap. 8. fol. 336. In what case the Kings Purveyors that would take Cattell may be resisted ITem it is ordained by the authority aforesaid that the Statutes before this time made of Purveyors and buyers shall be holden and kept and put in due execution And in case that any purveyor buyer or taker will take and make purveyance or buy any thing to the value of forty shillings or under of any person and make not ready payment in hand that then it shall be lawfull to every of the Kings liege people to retain their goods and cattels and to resist such purveyors and buyers 28. Ed. 3. 12. and in no wise suffer them to make any such pâ—rveyances buyings or takings And to keep the peace better every constable tithingman or chief pledge of every town or hamlet where such takings or purveyances shall be made shall be helping or assistant to the owner or seller of such things to be taken against the forme of this Ordinance to make resistance in the manner aforesaid in case that such constables tithingmen or chiefe pledges be required so to doe upon pain to yeeld to the party so grieved the value of the things so raken with his double damages and that none of the Kings liege people be put to losse or damage by the King or any officer for such resistance And that none of the Kâ—ngs officers shall cause to be arrested vexed or impleaded in the Court of the Marshalsey or else where any of the Kings liege people for such detaining or not suffering to be done upon paine to loose 20. l. the one moity thereof to the King and the other moity to him which will in such case sue and that the Iustices of peace in evety County shall have power by authority of this Ordinance to inquire hear and determine as well at the suit of the King as of him that will sue of any thing done against this Ordinance and thereof to make due punishment and execution and to award damages to the party plaintife when any defendant is thereof duly convict and that upon every action to be taken upon this Ordinance every party defendant shall be put to answer unto it without the aid of the King and in such actions to be taken processe shall be made as in a writ of trespasse done against the peace and that in every Commission of Purveyors buyers or takers to be made this Ordinance shall be contained and expressed And moreover that this Ordinance among other Statutes of purveyors buyers or takers before this time made shall he sent to the Sherifes of every County of England to proclaim and deliver the said Statutes and Ordinances in the manner and forme contained in the Statute of purveyors and buyers 2. H. 6. 2. 36. E. 3. 6. made the first year of the reign of our said Lord the King upon the paine contained in the Statute And moreover the King will and commandeth that the Statute made the 36. year of King Edward late King of England the third after the conquest touching the purveyors of other persons then of the King shall be put in due execution 2. H. 4. 14. The 23. of Henry the 6. Chap. 10. fol. 340. No Sheriffe shall let to Farme his County or any Bailiwick The Sheriffes and Bailiffes fees and duties in severall cases ITem the King considering the great perjury extortion and oppression which be and have been in this realme by his Sherifes under Sherifees and their Clerkes Coroners Stewards of franchises Bailifes and keepers of prisons and other officers in divers counties of this realm hath ordained by authority aforesaid in eschewing of all such extortions perjury 20. H. 7. fo 12. 21. H. 7. fo 36. 4. H. 4. 5. Kel fo 108. â—1 H 7. fo 16. Rast pla fo 318. Coke pla 365. 3. E. 1. 26. Dyer fo 119. and oppressâ—ion that no Sherife shall let to farme in any manner his county nor any of his Bailiwicks Hundreds nor wapentakes nor that the said Sherifes under Sheifes bailiâ—ffes of Franchises nor any other Bailiffe shall return upon any writ or precept to them directed to be returned any inquests in any panell thereupon to be made any Bailiffes officers or servants to any of the officers aforesaid in any panell by them so to be made nor that any of the said Officers and Ministers by occasion or under colour of their office shall take any other thing by them nor by any other person to their use profit or avail of any person by them or any of them to be arrested or attached nor of any other of them for the omitting of any arrest or attachment to be made by their body or of any person by them or any of them by force or colour of their office arrested or attached for fine fee suit of prison mainprise letting to baile or shewing any ease or favour to any such person so arrested or to be arrested for their reward or profit but such as follow that is to say For the Sheriffe twenty pence the Bailiffe that maketh the arrest or attachment foure pence and the Gaoler if the prisoner be committed to
the same Court or by any of the Iudges Officers or Ministers thereof be from the first day of August in the yeare of our Lord God 1641. clearly and absolutely dissolved taken away and determined and that from the said first day of August neither the Lord Chancellour or Keeper of the great Seale of England the Lord Treasurer of England the Keeper of the Kings Privie Seale or President of the Councell nor any Bishop Temporall Lord Privie Councellor or Iudge or Iustice whatsoever shall have any power or authority to heare examin or determin any matter or thing whatsoever in the said Court commonly called the Star-Chamber or to make pronounce or deliver any Iudgment Sentence Order or Decree or to doe any Iudiciall or Ministeriall Act in the said Court 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 allâ— or any the Iudges 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 And be it likewise enacted That the like jurisdiction now used and exercised in the Court before the President and Councell in the Marches of Wales and also in the Court before the President and Councell established in the Northern parts And also in the Court commonly called the Court of the Duchy of Lancaster held before the Chancellor and Councell of that Court And also in the Court of Exchequer of the County Palatine of Chester held before the Chamberlain and Councell of that Court The like iurisdiction being exercised there shall from the said first day of August 1641 be also repealed and absolutely revoked and made void any Law prescription custome or usage Or the said Statute made in the third yeare 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 And that from henceforth no Court Councell or place of Iudicature 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 Iurisdiction as is or hath been used practised or exercised in the said Court of Star-Chamber Be it likewise declared and enacted by authority of this present Parliament That neither his Majestie nor his Privie Councell have or ought to have any Iurisdiction power or authority by English Bill Petition Articles Libell 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 the Subiects of this Kingdome But that the same ought to be tryed and determined in the ordinary Courts of iustice and by the ordinary course of the law And be it further provided and enacted That if any Lord Chancellor or Keeper of the great Seale of England Lord Treasurer Keeper of the Kings privie Seale President of the Councell Bishop Temporall Lord Privie Councellor Iudge or Iustice whatsoever shall offend or doe any thing contrary to the purpâ—rt true intent and meaning of this Law Then he or they shall for such offence forfeit the summe of five hundred pounds of lawfull money of England unto any party grieved his Executors or Administrators who shall really prosecute for the same and first obtain judgement thereupon to be recorded in any Court of Record at Westminster by action of Debt Bill Plaint or Information wherein no Essoine Protection Wager of Law Aid Prayer Priviledge Injunction or Order of restraint shall be in any wise prayed granted or allowed nor any more then one Imparlance And if any person against whom any such Iudgement or Recovery shall he had as aforesaid shall after such Iudgement or Recovery offend again in the same then he or they for such offence shall forfeit the summe of one thousand pounds of lawfull money of England unto any partie grieved his Executors or Administrators who shall really prosecute for the same and first obtaine Iudgement thereupon to be Recorded in any Court of Record at Westminster by action of Debt Bill Plaint or Information in which no Essoine Protection Wager of Law Aid Prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more then one Imparlance And if any person against whom any such second Iudgement or Recovery shall be had as aforesaid shall after such Iudgement or Recovery offend againe in the same kind and shall bee thereof duly convicted by Indictment Information or any other lawfull way or meanes that such persons so convicted shall be from thenceforth disabled and become by vertue of this Act incapable Ipso facto to beare his and their said Office and Offices respectively and shall be likewise disabled to make any Gift Grant Conveyance or other disposition of any his Lands Tenements Hereditaments Goods or Chattels or to make any benefit of any Gift Conveyance or Legacy to his own use And every person so offending shall likewise forfeit and loose unto the party grieved by any thing done contrary to the true intent and meaning of this Law his trebble dammages which he shall sustain and be put unto by meanes or occasion of any such Act or thing done the same to be recovered in any of His Majesties Courts of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoine Protection Wager of Law Aid Prayer Priviledge Injunction or Order of Restraint shall be in any wise Prayed Granted or Allowed nor any more then one Imparlance And be it also provided and enacted That if any person shall hereafter be committed restrained of his liberty or suffer imprisonment by the Order or Decree of any such Court of Star-Chamber or othâ—r Court aforesaid now or at any time hereafter having or pretending to have the same or liâ—e jurisdiction Power or Authority to commit or imprison as aforesaid Or by the Command or Warrant of the Kings Maiestie his Heires or Successours in their own person or by the Command or Warrant of the Councell-board or any of the Lords or other of his Majesties Privie Councell that in every such case every person so committed restrained of his libertie or suffering imprisonment upon demand or motion made by his Councell or other employed by him for that purpose unto the Iudges of the Court of Kings Bench or Common Pleas in open Court shall without delay upon any pretence whatsoever for the ordinary Fees usually paid for the same
and preaching according to the Canons and constitutions of the Bishops and their Clergie * * See the 13. Eliz. chap. 12. And what composition rate for tythes or other oblations this Defendant or any of the said Inhabitants have payed unto the said Complainant the same was unduly exacted by the Complainant so as the said complainant hath no right nor title by colour of any such prescription or custome to have and demand the said composition rate for the premises or any of them on this Defendant as in the said bill is set forth and demanded for that by authority of this present Parliament the function and Miniministrie of Bishops Parsons and Vicars are abrogated and avoided * * Hierarchy exterpated root and branch and government by Prelacy whereof Vicars be part See the Ordinances of the 9. of Octob. and the 16. Novemb. 1646 2. part book decl fol. 922. 932. see also the Covenant And likewise the book of Common prayer and the administring of the Sacraments and preaching according to the Bishops Canons and injuctions by authority of this present Parliament utterly taken away and disannulled ††See the Ordinances of the 3. Ian. 1644. and 23. August 1645. Parl. Decl. 2. part fol. 715. 716. And this Defendant doth conceive no tyth or composition rate for tyth nor any other oblations for Poultrie are due by law but have been taken no otherwise then by Iewish or Popish institution * * Tyths are not due iure divino and at this present there is no law to compell their payment Cook Rep. 2. Quen d. Winchester and provision as by the Statute made for the payment of tythes and oblations whereunto reference being had will appeare the same being made only for the maintenance of the Popish and prelaticall Clergie and Ministrie and no other And he this Defendant beleeveth is to be true and hopeth to prove that neither by the law of God nor man any tyths composition rates for tyths or other oblations for poultrie ought to be paid to any persons or Vicars or other Ecclesisticall Minister or Ministers whomsoever for this Defendant saith that by the Parliaments Protestation made by authority of this present Parliament the 5. day of May 1641. against popery and popish innovations all Lawes Customes Acts and Ordinances for the payment of tyths or manner of tything raâ—e or composition for tyths or other oblation to any parson or Vicars of any parish within this Kingdome their names and offices being Popish and Antichristian the same having no foundation in the word of God are utterly void and null And this Defendant denyeth that he ever did nor now doth combin practice or confederate with the other Defendants named in the said Bill or any of them or with any other person or persons whatsoever to wrong the said Complainant as in the said Complainants bill is untruly suggested And without that this defendant had depastured within the said Parish eight and twenty Cowes within the said parish as in the Complainants bill is alledged or that the Complainant is Debtor or Accountant to the King or that the said Complainant is unlawfully intituled to have receive and take the Viccarage tyth or the composition rate for tyth and the said oblations as were formerly payed to the POPISH VICCARS HIS PREDICESSORS if in case the same had been payed as in the said bill is alledged And without that any other matter or thing in the said bill of complaint contained materiall or effectuall to be answered unto and not herein fully answered unto confessed and avoided traversed or denyed is true therefore this Defendant humbly prayeth to be dismissed out of this honourable Court with his reasonable costs and expences in this behalfe wrongfully had and sustained Mr Fage Senior Councellor But what just proceeding Mr. Brown had upon this Plea before the present Barons of the Exchequer his own Petition to themselves and to the House of Commons against them will very fully demonstrate the first of which thus followeth To the Right Honourable His Majesties Barons of the Court of Exchequer The humble Petition of William Brown SHEWETH THat Iosua Hoyle now Vicar of the Parish of Stepney ever since he got the Vicarage hath been very troublesome and vexatious to your Petitioner and other the Parishioners there endeavouring by illegall forcible and indirect wayes and meaness to extort from them tythes and certaine manner of tything which by law he could not demand nor they compelled to pay as by their learned councell they are informed and hope to prove if they may have the benefit of the Law which is the inheritance of every free-borne English-man That under colour of the Ordinance for tythes the said Mr. Hoyle did take from your petitioner goods of a considerable value for which your petitioner hath no satisfaction That the said Mr. Hoyle the more to vex your petitioner causelesly served your petitioner with a Subpena to answer a bill in the Court of exchequer for pretended tythes and other duties to which Bill your petitioner in Michaelmas terme last answered by advise of his Councel learned in the Law divers other of the said parishioners being named defendants in the said Bill but not served till Easter terme last of purpose to put them to the more charges and weary them out with Multiplicity of Suits and unnecessary Expences in Law That the said Mr. Hoyle procured an Order of this Court that your Petitioner should shew cause by a certaine day in the last Terme why your petitioners Plea and Answer should not be taken of the file as scandalous and your Petitioner ordered to pay cost and make a further and better answer That your petitioner in obedience to the order of the Court by his councell Mr. Norbery and Mr. King attended several dayes to shew cause for allowing his plea and answer but when that cause was called upon your petitioners Councellours were not suffered to shew forth to the Court the sufficiencie in Law of your petitioners said plea and answer Baron Atkins telling your petitioners counsellers that Mr. Fage who subscrib'd the same his hand should never be received again in that court further threatn'd your petitioners councellours saying that if they or any other Councellours should appeare in any such cause should be debarred from pleading in that Court whereupon though the said Mr. Norbery Mr. King were prepared able and ready had undertaken to maintain your petitioners said plea and answer to be good and sufficient in law was so overawed by Baron Atkins that for feare to offend him and the Court they were silenced and so without further debate or Councel heard your petitioners Plea was over ruled and this Answer Judged scandalous and insufficient and your petitioner further ordered to pay forty shillings cost and make further answer That your petitioner is a free-man of England and by the great Charter of Liberty ought to be under the
arbitrary power like Turkish Janisaries In the rhird place I answer that it is against reason law conscience justice and equity to subject me at one and the same time or any other free Commoner of England under the sting and power of two distinct Lawes and such a bondage as is insupportable and such a snare of intanglement that no mans life whatsoever can be safe or secure under it that I shall be liable to be questioned and destroyed by the common Law of the Kingdome and then be at the wills of mercenarie Turkish Ianisaries in case the common Law will not reach me to be questioned and destroyed by an unjust arbitrary Martiall law and if it can be justly proved against me that I have made any tumults the Law and the ordinarie Courts of justice are open by which and by no other rules and proceedings J ought to be tryed and if it be said or can be proved that J have belied or scandalized the Generall to the taking away of his good name c. yet scandalum Magnatum is not to be tried by Martiall Law nor yet either by the House of Commons or the House of Lords but only alone now the Star-Chamber is down by an Action at cōmon Law ††As is cleare by the Statutes of 3. Ed. 1. 33. 37. Ed. 3. 18. 38. Ed. 3. 9. 42. Ed. 3. 3. 2. R. 2. 5. 12 R. 2. 11. 5. part Cookes reports pag. 125. 13. H. 7. Kelway 11. Eliz. Dier 285. 30. Affiz pla 19. Liev. Col. John Lilburnes Grand Plea of 20. October 1647. pag. 7. 8. by a Jurie of my equals no where else it being a Maxime in Law That wher remedy may be had by an ordinary course in law the party grieved shall never have his recourse to extraordinaries * * See Vox Plebis pag. 38. Lievt Col. Jo. Lilburnes Anatomie of the Lords Tyranny pag 10. And besides for you to proceed with me and to be both Parties Jury and Iudges is a thing that the Law abhorres ††See 8. H. 6. fol. 21. Eliz. Dier 220. Dr. Bonhams case 8. part of Cooks Repots and Lievt Col. Jo. Lilburnes grand Plea pag. 10. In the fourth and last place J answer that the Parliament it selfe neither by Act nor Ordinance can justly or warrantably destroy the fundamentall liberties and principles of the common Law of England * * See Mr. Henry Martins answer to the Scotchpapers called the Independency of England at the last end it being a maxime in law and reason both That all such Acts and Ordinances are ipso facto null and void in law and bind not at all but ought to be resisted and stood against to the death But for them to give you a power by Marshal Law or under any other name or title whatever by your arbitrary tyrannicall wills without due course and processe of Law to take away the Life or Liberty of me or any free Commoner of England whatsoever yea or any of your own Souldiers in time of peace when the Courts of Iustice are all open and no visible declared enemie in Armes in the Kingdome ready to destroy it is an absolute destroying of our fundamentall Liberties and a rasing of the foundation of the Common Law of England ††But besides all this I doe confidently believe that the Parliament never gave power unto the Generall since the wars ended to execute Martiall Law neither doe I believe that some chiefe Executors of Martiall Law have any Legall Commission from the Parliament who never that I could heare of ever gave power unto the Generall of himself to make generall Officers and besides all the Parliament men that are Officers in the Army were as I have been groundedly told formerly taken off by an Ordinance of both Houses which was never repealed since And therfore such a power of Arbitrary Marshall Law cannot justly by the Parliament in time of peace c. be given unto you nor if it were be justly or warantably executed by you And besides both houses themselves by an Ordinance unlesse they alter the whole constitution of this Kingdome can take away the life of no free Commoner of England whatsoever especially in time of peace And therefore that which is not within their owne power to do they cannot by an Order or Ordinance grant power to Sir Thomas Fairfax c. to do it being a Maxime in nature That beyond the power of being there is nor can be no being But it is in the power of the Parliament or the two Houses or the House of Commons themselves as the present constitutions of this Kingdome stands either by Order or Ordinance to take away the life of any free commoner of England * * See Sir E Cooks 2 part institut fo 47 48. 3. part fol. 22. and 4. part fol. 23. 25. 48. 291. all of which bookes are published for good law to the Kingdom by 2. speciall Orders of the present House of Commons as you may read in the last pa. of the second part institut see also the Petition of Right And therefore they cannot by an Ordinance or Order especially in times of peace give power to Sir Thomas Fairfax by Marshall Law unlesse they totally alter the Constitutions of the Kingdome to take away the life or lives of any free Commoners of England which all Souldiers are as well as others ††See the Armies Declaration of the 14. Iune 1647. Book of their Declarations pag. 39. and their Letter from Royston to the Lord Mayor of London of the 10. Iune 1647. which the Printer hath neglected to print in their book of Declarations * and therefore it is absolute murther in the Generall and the Councell of Warre now to shoot to death hang or destroy any Souldier or other Commoner what ever by Marshall Law for which they may be indicted at the Kings Bench barre And therefore J doe the third time as a friend advise you to cease your illegall arbitrary tyrannicall Marshall Law proceedings with me that am no Souldier and so not under the least pretence of your Marshall Iurisdiction least in time to come you pay as deare for your arbitrarie illegall proceedings with me as Sir Richard Empson and Mr. Edward Dudley Iustices did who as Sir Edward Cook declares in his 2. and 4. part of his Institutes where very officious and ready to execute that illegall Act of Parliament made in the 11. H. 7. cap. 3. which gave power unto Iustices of Assize as well as Iustices of the Peace without any finding or presentment by the verdict of twelve men being the ancient birth-right of the Subject upon a bare information for the King before them made to have full power and authority by their discretions to heare and determine all Offences or contempts committed or done by any person or persons against the form ordinance
effect of any Statute made and not repealed c. by colour of which Act of Parliament shalling saith he this fundamentall law viz. the 29. Chapter of Magna Charta it is not credible what horrible oppressions and exactions to the undoing of infinite numbers of people were committed by them for which though I cannot read they shot any man to death and though they had an expresse Act of Parliament to beare them out abundantly lesse questionable then an Ordinance for exercising Marshal Law they were both indicted of high treason both by the Common Law and Act of Parliament * * See 2. part Instit fol. 51. 4. part fol. 41. 196. 197. but especially read their Jndictment virbatim set down ibid. fo 198 199. and in the 2. yeare of Henry 8. they both lost their heads Therefore from all the premises by way of conclusion I draw up this protestation against you that by the lawes and constitutions of this Kingdome you have not the least Iudicative power in the world over me therefore I cannot in the least give you any Honour Reverence or Respect either in word action or gesture and if you by force and compulsion compell me againe to come before you I must and will by Gods assistance keep on my hat and look upon you as acompany of Murderers Robbers and Theives and doe the best I can to raise the Hue and Cry of the Kingdome against you as a company of such lawlesse persons and therefore if there be any Honour Honesty and Conscience in you I require you as a free borne English man to doe me justice and right by a formall dismissing of me and give me just reparation for my moneths unjust imprisonment by you and for that losse of credit I have sustained thereby that so things may goe no further or else you will compell and necessitate me to study all wayes and means in the world to procure satisfaction from you and if you have any thing to lay to my Charge J am as an English man ready to answer you at the common Law of England and in the meane time J shall subscribe my self Your servant in your faithfull discharge of your duty to your Masters the Commons of England that pay you your wages William Thompson From my arbitrary and most illegall imprisonment in Windsore this 14. Decem. 1647. The forementioned Letter thus followeth To his Excellency Sir Thomas Fairfax Knight Captaine-Generall of the Forces in the Nation for Importiall Justice and Libertie these present May it please your Excellency I Here present unto you a Declaration and Protestation against the illegall and unjust proceedings of your Councell of Warre against me I being a free Commoner of England as in the presence of the just God before whose Tribunall both you and I shall stand to give an account of all ungodly deeds committed against him And so I rest Your Excellencies servant if you are a true servant to the most excellent God for justice and righteousnesse in the earth without respect of persons William Thompson Decemb. 14. 1647. The Petition thus followeth To the right Honourable his Excellency Sir Thomas Fairfax Knight Captain Generall of all the forces raised in the Kingdome of England The humble Petition of some of your Excellencies Officers and Soldiers being under the custodie of the Marshall Generall Sheweth THat whereas there are misrepresentations of the intentions of the late Agents of the Army and their adherents by men of corrupt minds who would make all the end of your own and your Armies noble and valiant Atchievements under the power of God fruitlesse and would destroy justice and righteousnesse from amongst men and in stead of common good and equal distribution of justice would advance a particular selfish interest to accomplish their unworthy selfish ends amongst many other scandals cast upon the late Agents they have blazed abroad that they intended to murther the King and that one of them should affirm it was lawfull And whereas this was reported by one Lievt Col. Henry Lilburne it being altogether most abominable in our eyes and detracts from the purity and righteousnesse of our Principles tending only to make us odious to the people for whose good alone we have run not only all former but also these late hazzards We therefore desire that the said Lievt Col. Henry Lilburne may be speedily sent for to testifie upon Oath as in the presence of God who used those words where those words were used and when and what in particular the words were That so such a person may come under a publique cognizance and your Excellencies faithfull servants and souldiers may free themselves and others from such aspertions And your Petitioners shall ever pray c. Will. Eyers Will. Bray Will. Prior Iohn Wood. George Hassell Will. Everrard Iohn Crosseman Tho. Beverly Will. Thompson Commoner The forementioned plea of Iohn Crosseman which with his own hands he delivered to the Generall himself thus foloweth TO HIS EXCELLENCY SIR THOMAS FAIRFAX AND ALL his Officers that pretend to be Executors of Martiall Law May it please your Excellency I Was convened the 16. December last before certaine of your Officers that pretendedly called themselves a Court Marshall who attempted to try me by Marshall Law for certaine pretended crimes specified in a paper by way of Articles exhibited by a namelesse prosecuter 20. dayes after I was a prisoner only the said Articles were signed by Henry Whaley who calls himself Iudge Advocate And the same day and time unto the said Officers I delivered in a paper under my hand intituled John Crosseman his Plea against the proceedings of the Generall Officers to punish him by Marshall Law And after much debate by the said Officers upon the said Plea the said Officers seemed to be unsatisfied with it and therefore gave me time till this present Munday the 20. day Decemb. 1647. to consider with my self whether J would stand unto the said plea or give in any other answer Having thereupon largely considered with my self upon the ends of our late taking up Armes I can in my own conscience judge them to be no other but for the destruction of all arbitrary tyrannicall power in whomsoever the preservation of our Lawes and Liberties and the punishment of all those that have endeavoured the destruction of them And having since the delivery of the said plea read the Petition of Right from end to end And William Thompsons plea delivered to your Excellency c. upon the 14. Decemb. 1647. now in print intituled Englands Freedome Souldiers Rights ††Which you may read before pag. 1 2 3 45 46 47 48 49 50 51. upon the deep and weighty consideration of all which J am compelled out of the sense of avoyding the being too justly esteemed by all understanding rationall men a traytor and subverter of the Lawes and liberties of England to stand unto my said Plea without any further answer then this
their Diurnall Mercuries sufficiently blown and sounded over London to salve up their own reputations and credits which than was very much blasted and to preserve their own lottering greatnesse the tumbling down of which they were afraid of by the great Hatchers the Scoth strook at their roots with in their thundring discourse for the King and his answering of the lare 4. bills before they were sent him both of which were seâ—â—â—all demonstrations to high and mighty Cromwell and Ireton that the Scots would on this them and get away their late admired and doâ—â— upon darling the King from them †For opposing whose interest till the peoples liberties were first setled they sought the ruine and destruction of all those in the Army that appeared against it and then spoil all their expected Court greatnesse in wearing a welsh Gue Gue the George and a blew ribbin with the title of at least Earl of Essex and Lievtenant or Generall Field Marshall of Ireland and so perceiving thereby that the interest of the Scots was likely to be joyned with that of the Kings and so Royallisme and Presbytery would shortly swallow up forceable and factious Independency especially if the interest of the honest Nown-Substantive Levellers as the King their Quandum good Lord in his message left at Humpton Court when they sent him to the Isse of Whight lately christned them as he had severall times done the Parliament in his severall Declarations published the beginning of these warrs should not be indeavoured to be united to them againe that so now in their necessity and straights they might once againe make close stooles of them to shit in and when they had done to throw them behind the doore as formerly they had as unfit to remaine in their sight till they needed them againe And therefore to kill two birds with one stone upon their fast they release the prisoners as the mind of God when without doubt they had resolved it before as the only expedient to reinbalm their justly lost reputation And secondly as the only meanes to reimpinloante them into the good thoughts of those men they and their late royall friends lately christned Levellers and to add strength unto the last the two chiefe of the Grandees Cromwell and Ireton came to the Parliament to heighten them in their votes against the King because he had forsaken his first love and would not be content with that price that they would give him to let them reign and rule under him the which if he would have taken no doubt but he might have com'd in to have joyntly with them oppressed and rid the people but because it may be the Scots feared if he came in by the Grandees of the Army they and hee might joyn together to chastise them for all their old former provocations given unto both and therfore out of meer safety it may be to themselves outbid the Grandees to gaine the Kings affection at which they are mad and therefore to preserve their own greatnesse and to gaine if it be possible the lost affections of the honest Nown-Substantive English men they flie high both against him and the Scots that so they may if possible induce them to joyne with them in a new war which is their interest and trade without giving or offering unto the people the least valuable consideration for all the blood they have already lost and are more amply like to loose upon the ingaging in a new warre yea or intending them any which for my part I doe abhorre †Which is clearely evident by both their pleading and plotting for the supportation of the Lords usurped Legislative power which J will maintaine it against Cramwell and Ireton they have no more right to instrict justice then a thiefe and robber hath to apurse which he takes by force upon the high way which pretended Legislative power alone hath brought all the warrs upon this Kingdom for if they at first had concurred to the Ordinance of the Militia the King could never have been able to have raised an Army and to continue an arbitrary power for life and also hereditarily to their heires be they fooles or knaves is the greatest vassalage and bondage that can be therefore I say again down with them and shall disward and hinder by all the interest I have in England not to undertake unlesse the antient hereditary just and native right of all Englishmen indiffinently be particularly and clearly holden out unto them and secured with strong and good security that so Englishmen as Englishmen may be united and then when that is done my heart blood I will venture against any interest in the world that shall fight against it For to fight as hitherto we have done to pull downe own sort of Tyrants to set up another as bad if not worse then the former I think is the greatest madnesse in the world Now having at present done with the Grandees of the Army there being so much truly declared of them in that most notable book called Putney Proiects the truth of which the brazed lacest of their Champions dare not with his pen deny no not forsworne Lievtenant Edmond Chillington himself their choice darling that it here saves 〈◊〉 a labour But before I come to touch upon the arbitrary tyrannicall proceedings of the present House of Lords I shall first insert another piece of injustice which should have come in before of the Iudges in Westminster Hall from whose grose and habituated injustice ariseth the principall miserie of this Nation from age to age who immediately before this Parliament gave away all the estates of all the free men of England at one judgement to the King for by the same right he by his wil could by his Ship-writs take six pence from us he may take all we have and by the same right he takes our estates he may take all our lives And if for that judgement they had all been hanged that had a hand in it as by the practice of this Kingdome in like or lesser cases Iudges hath been these that now survive them would have been wary so visibly to forsweare themselves by doing palpable iniustice as they doe For the fore mentioned learned Author Andrew Horne in his merror of justice pag. 238. devision 108. saith expresly That it is an abuse that Iustices and their Officers who kill people by their false iudgement be not destroyed as other murderers which King Alfred caused to be done who caused 44. Iustices in one year to be hanged as murderers for their false iudgements The case that I shall set down is Mr. Henry Moores my Quandum fellow prisoner in the Fleet and the most lamentable and deplorable unjust dealing of the Iudges with him you may briefly understand by his Petition which thus followeth To the Right Honourable the Lords and Commons assembled in both Houses of Parliament The Humble Petition of Henry Moore Merchant SHEWETH That whereas your Petitioner
to receive or detaine you but by a legall warrant flowing from a legall power as before I have more fully noted See also 1. p. book decl p. 201. And you are to know that any house keeper that stand not committed of crimes but are legall men paying scot and lot though they be no subsidie men are good baile and if refused you have your action of false imprisonment against him that so doth and you are further to know that if the prisoner be in a Country Gaole who is â—o be brought up to the Bar in Westminster Hall upon the Habeas Corpus that he is only to beare his owne charges but by law is not bound to beate the Gaolers or to pay him any thing for bringing him And in case the party be committed to prison unjustly and no Baile will be taken for him he ought to require a Copy of his Mittimus and to have it gratis and if I should demand it and it would not be given me I would not goe unlesse I were carried by force by head and heeles and then I would cry out Murder Murder â—o and doe the best I could to preserve my self till I had got a Copy of it for many times when a man comes to prison the dogged Gaoler will refuse to let me have it which may be a great â—eâ—riment to me and if I stirre or busse for it his will shall be a Law unto me to duâ—geon me bâ—â—t and fetter me contrary to Law It being as Andrew Horne saith in his excellent book called the Mirrour of justice in English Chap. 5. Sect. 1. devision 54. pag. 231. an abuse of Law that a prisoner is laden with irons or put to paine before he be attainted of fellony c. And when J am thus in prison committed by what authority soever the first thing that J am to doe is to send my friend be he what he will be aâ— well a private understanding resolute man as a Lawyer for either my self or any one I will appoint may and ought to plead my cause before any Iudge in England as well as any Lawyer in the kingdome and neither ought by the Iudge to be forbidden snub'd or brow beaten to the Chancery for a Habeas Corpus if it be out of Tearm for as Sir Edward Cook on the 29. chap. of Magna Charta well p saith the Chancery is a shop of iustice alwayes open and never adiourned so as the subiect being wrongfully imprisoned may have justice for the liberty of his person as well in the Vacation time as in the Tearme but if it be Tearm time it is most proper to move for the Habeas Corpus at the Kings bench barre and if the Judges refuse to grant it unto you it being your right by Law as the Petition of right fully declare q and the Iudges by their oath before printed pag. 10 36 are bound to execute the Law impartially without giving care in the least to the unjust command of the Parliament or any other against it then you may by the Law indict the â—udge or Iudges for Perjury and if then they shall deny you the benefit of the Law I know no reason but you may conclude them absolute Tyrants and that the foundation of Government is overturned you as the Parliament hath taught you are left to the naturall remedy to preserve your selves which self preservation they have declared no people can be deprived of see their declarations 1. part book decl p. 207 690. 728 150. Iohn Lilburne in adversity and prosperity and in life and death alwayes one and the same for the liberties of himself and his native Country From my arbitrary tyrannicall and Murthering imprisonment in the Tower of London this 2. of Decemb. 1647. Postcript BVt while I was concluding this second edition of the London Agents plea with the fore-expressed additions newes is brought me that the committee of plundered Ministers summons up Londoners and commits them for non payment of Tythes for whom I frame a Plea thus That the houses of Parliament have already made two Ordinances about tythes of the 8. of Novem. 1644. and the 9. of August 1647. and by those Ordinances referred the London-Parsons or ministers in London to get their tythes according to the statute of the â—7 H. 8. 12. which statute authorised such and such men to be Commissioners as are therin named or any fix of them to make a decree which decree shall be as binding to the Londoners as an expresse act of Parliament in which they give the Parsons two shillings nine-pence in the pound for all house-rents c. which the Londoners are bound to pay unto their parsons if the said decree had as by the foresaid statute it ought to have been entred upon record in the High Court of Chancery which it never was nor is noâ— her to be found aâ— Meâ—arborow the Lawyer in Roben-hoods court in Bow-lane London proved by certificate under the Record keeperâ— hand before Alderman Adams when he was Lord Mayor of London In a case betwixt Parson Glendon of â—arkins by Tower-hill and one of his Parishoners viz. Mr. Robert a Merchant as I remember for I was by and heard all the Plea And therefore the Parsons of London can neither by Law nor those Ordinances recover or justly require one farthing token of Tythes from any Citizen of London And for the Committee of plundered Ministers by any pretended authority that yet is visible to take upon them to execute those Ordinances or to compel the Citizens of London to pay tythes to their Parsons or Ministers they have no more authority or right to doe it then a Three hath upon the high way to rob me of my purse or life and for them by the Law of their owne will to take upon them to send Summons to any Free-man of England and to force them to come before them without due processe of * * And what due processe of Law is you may read in the 2. part institutes upon the 29. Chap. of Magna Charta and Vox Plebis pag. 11 12 14 15. c. and my book called The resolved mans resolution page 3 4 5 6. c. and my grand plea against the Lords and Thompsons plea against the new Tyrants at Windsore executing Marshall Law law to pay so much money to the Parsons upon any pretence whatsoever and for unwillingnesse to pay to commit him or them to prison is a crime in my Judgement of as high a nature in subverting our fundamentall lawes and liberties and seâ—ing up an Arbitrary Tyrannical government as the Earle of Strafford was accused of and lost his head for and as wel do the actors in this arbitrary Committee deserve to dye for these actions as Trayterous subverters of all lawes as the Earle of Strafford did for his against whom in the fift Article of his aditionall Impeachment of treason it is alledged against him That hâ— did use and
them and the said agreement or opinion of the greater part of the said Iustices and Barons and the said Iudgement given against the said IOHN HAMPDEN were and are contrary to and against the Lawes and Statutes of this Realm the right of property the liberty of the Subiects former resolutions in Parliament and the PETITION OF RIGHT made in the third yeare of the Reign of his Maiestie that now is And it is further declared and enacted by the authority aforesaid That all and every the Particulars prayed or desired in the said PETITION OF RIGHT shall from henceforth be put in execution accordingly and shall be firmly and strictly holden and observed as in the same PETITION THEY ARE PRAYED AND EXPRESSED and that all and every the Records and Remembrances of all and every the Iudgement Inrolements Entry and proceedings as aforesaid and all and every the proceedings whatsoever upon or by pretixt or colour of any of the said Writs commonly called Shipwrits and all and every the Dependents on any of them shall be deemed and adiudged to all intents constructions and purposes to be utterly void and disannulled and that all and every the said Iudgement Inrolments Entryes Proceedings and Dependents of what kind soever shall be vacated and cancelled in such manner and forme as Records use to be that are vacated Anno XVII Caroli Regis An Act for the prevention of vexatious proceedings touching the Order of Knighthood VVHereas upon pretext of an antient custome or usage of this Realm of England That men of full age being not Knights and being seised of Lands or Rents of the yearly value of forty pounds or more especially if their seising had so continued by the space of three years next past might be compelled by the Kings writ to receive or take upon them the order or dignity of Knighthood or else to make Fine for the discharge or respite of the same Severall Writs about the beginning of his Majesties reign issued out of the Court of Chancery for Proclamations to be made in every County to that purpose and for certifying the names of all such persons and for summoning them personally to appeare in the Kings presence before a certain day to be there ready to receive the said Order or Dignity Vpon returne of which writs and transmitting the same with their Returns into the Court of Exchequer and upon other Writs for further inquiry of the names of such persons issuing out of the said Court of Exchequer Processe by Distringas was thence made against a very great number of persons many of which were altogether unfit in regard either of estate or quality to receive the said Order or Dignity and very many were put to grievous Fines and other vexations for the same although in truth it were not sufficiently known how or in what sort or where they or any of them should or might have addressed themselves for the receiving the said Order or Dignity and for saving themselves thereby from the said Fines Processe and vexations And whereas its most apparent that all and every such proceedings in regard of the matter therein pretended is altogether uselesse and unreasonable May it therefore please your most Excellent Maiestie that it be by authority of Parliament declared and enacted And be it declared and enacted by the Kings most excellent Maiestie and the Lords and Commons in this Parliament assembled and by the authority of the same That from henceforth no person or persons of what condition quality estate or degree so ever shall at any time be distrained or otherwise compelled by any writ or processe of the Court of Chancery or Court of Exchequer or otherwise by any meanes whatsoever to receive or take upon him or them respectively the Order or Dignity of KNIGHTHOOD nor shall suffer or undergoe any fine trouble or molestation whatsoever by reason or colour of his or their having not received or not taken upon him or them the said order or dignity And that all and every Writ or Processe whatsoever and all and every proceeding which shall hereafter be had or made contrary to the intent of this Act shall be deemed and adiudged to be utterly void and that all and every Processe proceeding and Charge now depending by reason or colour of the said pretended custome or writs aforesaid or of any the dependants thereof shall from henceforth cease and stand be and remain discharged and utterly void Any former Law or Custome or any pretence of any former Law or Custome or any other matter whatsoever to the Contrary in any wise notwithstanding I shall conclude this collection at present with the Bill of Attainder past against Thomas Earl of Strafford this present Parliament as I find it printed in the 303. pag. of a book printed for Will. Cook at Furnifalls Inne gate in Holbourne 1641. called Speeches and Passages of this Parliament from the 3. Novemb. 1640. to this instant Inne 1641. which thus followeth The Bill of Atainder that passed against Thomas Earle of STRAFFORD WHereas the Knights Citizens and Burgesses of the House of Commons in this present Parliament assembled have in the name of themselves and of all the Commons of England impeached Thomas Earle of Strafford of high Treason for endeavouring to subvert the Antient and Fundamentall Lawes and Government of his Maiesties Realms of England and Ireland and to introduce an Arbitrary and Tyrannicall Government against Law in the said Kingdoms and for exercising a tyrannous and exhorbitant power over and against the Lawes of the said Kingdomes over the Liberties Estates and Lives of his Maiesties Subiects and likewise for having by his own authority commanded the laying and asseising of Soldiers upon his Subiects in Ireland against their consents to compell them to obey his unlawfull commands and orders made upon paper Petitions in causes between party and party which accordingly was executed upon divers of his Maiesties Subiects in a warlike manner within the said Realm of Ireland and in so doing did LEVIE WARRE against the Kings Maiestie and his liege people in that Kingdome And also for that he upon the unhappie Dissolution of the last Parliament did slander the House of Commons to his Maiestie and did councell and advise his Maiestie that he was loose and absolved from the rules of Government and that he had an Army in Ireland by which he might reduce this Kingdome for which he deserves to undergoe the pains and forfeitures of high Treason And the said Earl hath been also an Incendiary of the wars between the two Kingdoms of England and Scotland all which offences have been sufficiently proved against the said Earle upon his impeachment Be it therefore enacted by the Kings most Excellent Maiesty and by the Lords and Commons in this present Parliament and by authority of the same that the said Earl of Strafford for the hainous crimes and offences aforesaid stand and be adiudged and attainted of high Treason and shall suffer such pain of