or make payment in deceit of our said Lord the King and of his People 7. And if a Man Slay the Chancellor Treasurer or the Kings Justice of the one Bench or the other Justices in Eyre or Justices of Assize and all other Justices Assigned to Hear and Determine being in their Places doing their Offices 8. And it is to be understood that in the Cases above rehearsed that ought to be judged Treason which extends to our Lord the King and of his Royal Majesty 9. And of such Treason the Forfeiture of the Escheats pertaineth to our Lord as well of the Lands and Tenement holden of other as of himself 10. And moreover there is another manner of Treason that is to say when a Servant slayeth his Master or a Wife her Husband or when a Man Secular or Religious slayeth his Prelate to whom he oweth Faith and Obedience 11. And of such Treason the Escheats cught to pertain to every Lord of his own Fee 12. And because that many other like Cases of Treason may happen in time to come which a man cannot think nor declare at this present time it is Accorded That if any other Case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without any going to Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be judged Treason or other Felony 13. And if percase any Man of this Realm Ride Armed covertly or secret with Men of Arms against any other to Slay him or Rob him or Take him or Retain him till he hath made Fine or Ransome for to have his deliverance it is not the mind of the King nor his Council that in such Case it shall be judged Treason but shall be judged Felony or Trespass according to the Laws of the Land of old time used and according as the Case requireth 14. And if in such Case or other like before this time any Justices have judged Treason and for this cause the Lands and Tenements have come into the Kings hands as forfeit the chief Lords of the Fee shall have the Escheats of the Tenements holden of them whether that the same Tenements be in the Kings hands or in others by Gift or in other manner 15. Saving always to our Lord the King the Year and the Waste and the sorfeitures of Chattels which pertain to him in the Cases above named 16. And that the Writs of Scire Facias be granted in such Case against the Land-Tenants without other Original and without allowing any Protection in the said Suit 17. And that of the Lands which be in the Kings hands Writs be granted to the Sheriffs of the Counties where the Lands be to deliver them out of the Kings hands without delay The Comment TReason is derived from Trabir which signifies Treacherously to betray when it concerns the Government and the Publick 't is called High Treason but against particular Persons as a Wife killing her Husband a Servant his Master c. it is Petty Treason High Treason in the Civil Law is called Crimen Laesae Majestatis a Crime wronging Majesty but in our Common-Law-Latine Alta proditio and in an Indictment for this offence the word Proditorie must be in Before the making this Act so many things were charged as High Treason That no Man knew how to behave himself Now by this Statute the particulars of that Grand Crime are reckoned up and all others excluded till declared by Parliament And the settling of this Affair was esteemed of such Importance to the Publick-Weal That the Parliament wherein this Act passed was called long after Benedictum Parliamentum the Blessed Parliament The substance of this Statute is branched out by my Lord Cook 3d. part of Instit. Fol. 3. into six Heads viz. The first concerning Death by compassing or imagining the death of the King Queen or Prince and declaring the same by some Overt Deed. By killing and murdering of the Chancellor Treasurer Justices of either Bench Justices in Eyre Justices of Assize Justices of Oier and Terminer In their Places doing their Offices The second is to Violate that is to Carnally know the Queen the Kings Eldest Daughter unmarried the Princes Wife The third is Levying War against the King The fourth is Adhering to the Kings Enemies within the Realm or without and declaring the same by some overt Act. The fifth is Counterfeiting of the Great the Privy Seal or the Kings Coin The sixth and last by bringing into this Realm Counterfeit Mony to the likeness of the Kings Coin Now as to the particular Exposition of the several parts of this Statute 1. When a man doth compass c. in the Original it is Quant Home which extends to both Sexes but one that is Non compos mentis or an Infant within the Age of discretion is not included but all Allens within the Realm of England being thereby under the Kings Protection and owing a Local Allegiance if they commit Treason may be punisht by this Act but otherwise it is of an Enemy 2. To compass and Imagine Is to contrive design or intend the death of the King but this must be declared by some Overt Act. But declaring by an open Act a design to Depose or Imprison the King is an Over Act to manifest the compassing his death For they that will depose their King will not stick to Murder him rather than fail of their end and as King Charles the First excellently observed and lamentably experienced There are commonly but few steps between the Prisons and the Graves of Princes 3. By the word King is intended 1. A King before his Coronation as soon as ever the Crown descends upon him for the Coronation is but a Ceremony 2. A King de Facto and not de Jure is a King within this Act and a Treason against him is punishable thô the Right Heir get the Crown 3. A Titular King as the Husband of the Queen is not a King within this Act but the Queen is for the word King here includes both Sexes 4. What is to be understood by the Kings Eldest Son and Heir within this Act I answer 1. A second Son after the death of the first Born is within the Act for he is then Eldest Secondly The Eldest Son of a Queen Regnant is as well within the Statute as of a King Thirdly The Collateral Heir Apparent or Presumptive is not within this Statute Roger Mortimer Earl of March was in Anno Dom. 1487. 11 Rich. 2. Proclaimed Heir Apparent Anno 39. Hen. 6. Richard Duke of York was likewise Proclaimed Heir Apparent and so was John de la Poolen Earl of Lincoln by Rich. 3. And Henry Marquess of Exeter by King Henry the 8. But none of these or the like are within the Purview of this Statute saith my Lord Coke 3 Instit fol. 9. 5. Note Whereas in the Printed Statute-Books it is there
no Man of what Estate or Condition soever he be shall be put out of his Lands or Tenements nor taken nor Imprisoned nor Dis-inherited without being brought in to Answer by due Process of Law 5. And by another Statute made in the two and fortieth year of the Reign of the said King Edward the Third it is Enacted That no Man be put to Answer without Presentment before Justices or matter of Record or by due Process and Writ Original according to the Old Law of the Land and if any thing be done to the contrary it shall be void in Law and holden for Errour 6. And by another Statute in the six and thirtieth year of the Reign of the same King Edward the Third it is amongst other things Enacted That all Pleas which shall be pleaded in any Courts before any of the King's Justices or in his other places or before any of his other Ministers or in the Courts and places of any other Lords within the Realm shall be Entred and Enrolled in Latine 7. And whereas by the Statute made in the third year of King Henry the Seventh Power is given to the Chancellor the Lord Treasurer of England for the time being and the Keeper of the Kings Privy Seal or two of them calling unto them a Bishop and a Temporal Lord of the King 's Most Honourable Council and the Two Chief Justices of the King's Bench and Common Pleas for the time being or other two Justices in their Absence to proceed as in that Act is expressed for the punishment of some particular Offences therein mentioned 8. And by the Statute made in the one and twentyeth year of King Henry the Eighth the President of the Council is Associated to joyn with the Lord Chancellour and other Judges in the said Statute of the Third of Henry the Seventh mentioned 9. But the said Judges have not kept themselves to the points limited by the said Statute but have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and to Inflict heavier punishments than by any Law is warranted 2. And forasmuch as all matters Examinable or Determinable before the said Judges or in the Court commonly called the Star-Chamber many have their proper Remedy and Address their due punishment and correction by the Common Law of the Land and in the ordinary course of Justice elsewhere 2. And forasmuch as the Reasons and Motives inducing the Erection and Continuance of that Court do now cease 3. And the Proceedings Censures and Decrees of that Court have by Experience been found to be an Intollerable Burthen to the Subject and the means to Introduce an Arbitrary Power and Government 4. And forasmuch as the Council-Table hath of late times assumed unto it self a Power to Intermeddle in Civil and matters only of private Interest between Party and Party have adventured to determin of the Estates and Liberties of the Subjects contrary to the Law of the Land and the Rights and Priviledges of the Subject by which great and manifold mischiefs and inconveniences have arisen and happened and much Incertainty by means of such proceedings hath been conceived concerning mens Rights and Estates for settling whereof and preventing the like in time to come 3. Be it Ordained and Enacted by the Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Jurisdiction Power and Authority belonging unto or Exercised in the same Court or by any the Judges Officers or Ministers thereof be from the first day of August in the Year of our Lord God one thousand six hundred forty and one clearly and absolutely dissolved taken away and determined 2. And that from the said first day of August neither the Lord Chancellour or Keeper of the Great Seal of England the Lord Treasurer of England the Keeper of the Kings privy Seal or President of the Council nor any Bishop Temporal Lord privy Councellour or Judge or Justice whatsoever shall have any power or Authority to hear examine or determine any matter or thing whatsoever in the said Court commonly called the Star-Chamber or to make pronounce or deliver any Judgment Sentence Order or Decree or to do any Judicial or Ministerial Act in the said Court 3. And that all and every Act and Acts of Parliament and all and every Article clause and Sentence in them and every of them by which any Jurisdiction Power or Authority is given Limited or appointed unto the said Court commonly called the Star-Chamber or unto all or any the Judges Officers or Ministers thereof or for any Proceedings to be had or made in the said Court or for any matter or thing to be drawn into question Examined or determined there shall for so much as concerneth the said Court of Star-Chamber and the power and Authority thereby Given unto it be from the said first day of August Repealed and Absolutely Revoked and made void 4. And be it likewise Enacted That the like Jurisdiction now used and Exercised in the Court before the President and Council in the Marches of Wales 2. and also in the Court before the President and Council Established in the Northern parts 3. and also in the Court commonly called the Court of the Dutchy of Lancaster held before the Chancellour and Council of that Court 4. And also in the Court of Exchequer of the County Palatine of Chester held before the Chamberlain and Council of that Court 5. The like Jurisdiction being Exercised there shall from the said first day of August one thousand six hundred forty and one be also Repealed and Absolutely Revoked and made void any Law prescription Custom or Usage or the said statute made in the third year of King Henry the Seventh or the statute made the one and twentieth of Henry the Eighth or any Act or Acts of Parliament heretofore had or made to the Contrary thereof in any wise notwithstanding 6. And that from henceforth no Court Council or place of Judicature shall be Erected Ordained constituted or appointed within this Realm of England or Dominion of Wales which shall have use or Exercise the same or the like Jurisdiction as is or hath been used practised or Exercised in the said Court of Star-Chamber 5. Be it likewise declared and Enacted by Authority of this present Parliament That neither His Majesty nor his Privy Council have or ought to have any Jurisdiction Power or Authority by English Bill Petition Articles Libel or any other Arbitrary way whatsoever to Examine or draw into question determine or dispose of the Lands Tenements Hereditaments goods or Chattels of any of the Subjects of this Kingdom but that the same ought to be tryed and determined in the ordinary Courts of Justice and by the ordinary course of the Law 6. And be it further provided and Enacted That If any Lord Chancellor or Keeper of the Great Seal of England Lord Treasurer Keeper of the Kings Privy Seal President
Liberties and of other contained in our Charter of liberties of our Forest the Archbishops Bishops Abbots Priors Earls Barons Knights Freeholders and other our Subjects have given unto us the fifteenth part of all their movables 5. And we have granted unto them on the other part that neither we nor our Heirs shall procure or do any thing whereby the Liberties in this Charter contained shall be Infringed or Broken 6. And if any thing be procured by any Person contrary to the premisses it shall be had of no force nor effect These being Witnesses Lord B. Arch-bishop of Canterbury E. Bishop of London c. We Ratifying and approving these Gifts and Grants aforesaid confirm and make strong all the same for Us and our Heirs perpetually And by the Tenour of these presents do renew the same Willing and granting for Us and our Heirs that this Charter and all and singular his Articles for ever shall be stedfastly Firmly and Inviolably observed And if any Article in the same Charter contained yet hitherto peradventure hath not been kept We will and by Authority Royal Command from henceforth firmly they be observed In Witness whereof we have caused these our Letters Patents to be made T. Edward our Son at Westminster the twenty eighth day of March in the twenty eighth year of our Reign Notes on Magna Charta THis Excellent Law holds the first place in our Statute Books for though there were no doubt many Acts of Parliament long before this yet they are not now Extant 't is called Magna Charta or the Great Charter not in Respect of its Bulk but in Regard of the great Importance and weight of the matters therein contained it is also styled Charta Libertatum Regni the Charter of the Liberties of the Kingdom and upon great reason saith Cook in his Proem is it so called from the effect Quia liberos facit because it makes and preserves the people free Though it run in the stile of the King as a Charter yet as my Lord Cook well observes on the 38 Chapter it appears to have passed in Parliament for there was then a Fifteenth granted to the King by the Bishops Earls Barons Free-tenants and people which could not be but in Parliament nor was it unusual in those times to have Acts of Parliament in a Form of a Charter as you may read in the Princes case Co. Rep. L. 8. Likewise though it be said here that the King hath given and granted these Liberties yet they must not be understood as meer Emanations of Royal Favour or new Bounties granted which the people could not justly challenge or had not a Right unto before For the Lord Cook at divers places asserts and all Lawyers know that this Charter is for the most part only Declaratory of the principal grounds of the Fundamental Laws and Liberties of England no new freedom is hereby granted but a Restitution of such as lawfully they had before and to free them of what had been usurped and encroached upon them by any power whatsoever and therefore you may see this Charter often mentions Sua Jura their Rights and Liberatâ—s suas their Liberties which shews they had them before and that the same now were Confirmed As to the occasion of this Charter it must be noted that our Ancestors the Saxons had with a most equal poize and temperament very wisely contriv'd their Government and made excellent provisions for their Liberties and to preserve the People from oppression and when William the Norman made himself Master of the Land though he be commonly called the Conquerour yet in truth he was not so and I have known several Judges that would Reprehend any Gentleman at the Bar that casually gave him that Title For though he killed Harold the Usurper and Routed his Army yet he pretended a right to the Kingdom and was admitted by Compact and did take an Oath to observe the Laws and Customs But the truth is he did not perform that Oath so as he ought to have done and his Successors William Rufus King Stephen Henry the First and Richard likewise made frequent Encroachments upon the Liberties of their People but especially King John made use of so many Illegal Devices to drain them of Money that wearied with intollerable oppressions they resolved to oblige the King to grant them their Liberties and to promise the same should be observed which King John did in Running-mead between Stains and Windsor by two Charters one called Charta Libertatum The Charter of Liberties the Form of which you may read in Math. Paris Fol. 246. and is in effect the same with this here recited the other the Charter of the Forrest Copies of which he sent into every County and commanded the Sheriffs c. to see them fulfilled But by ill Council he quickly after began to violate them as much as ever whereupon Disturbances and great miseries arose both to himself and the Realm The Son and Successor of this King John was Henry the Third who in the 19th Year of his Reign Renewed and Confirmed the said Charters but within two Years after Cancelled them by the pernicious advice of his Favourites and particularly Hubert de Burgh whom he had made Lord Chief Justice one that in former times had been a great Lover of his Countrey and a well deserving Patriot as well as learned in the Laws but now to make this a step to his Ambition which ever Rideth without Reins perswaded and humored the King that he might avoid the Charters of his Father King John by Duresse and his own Great Charter and Charta de Foresta also for that he was within Age when he granted the same whereupon the King in the eleventh Year of his Reign being then of full Age got one of the great Charters and of the Forrest into his Hands and by the Council principally of this Hubert his Chief Justice at a Council holden at Oxford unjustly Cancelled both the said Charters notwithstanding the said Hubert de Burgh was the primier Witness of all the Temporal Lords to both the said Charters whereupon he became in high Favour with the King insomuch that he was soon after viz. the 10th of December in the 13th Year of that King Created to the highest Dignity that in those times a Subject had to be an Earl viz. of Kent But soon after for Flatterers and Humorists have no sure Foundation he fell into the Kings heavy Indignation and after many fearful and miserable Troubles he was justly and according to Law Sentenced by his Peers in an open Parliament and justly Degraded of that Dignity which he unjustly had obtained by his Council for Cancelling of Magna Charta and Charta de Foresta In the 9th Chap. of this great Charter all the Ancient Liberties and Customs of London are Confirmed and preserved which is likewise done by divers other Statutes as 14 Edw. 3. Cap. 2. c. The 29 Chapt. NO FREE-MAN SHALL BE TAKEN
shall be tryed for any Offence against this Act by his Peers but if Convicted shall be disabled to sit in Parliament during Life And thus much for what is Treason at this day By the Statute of 1 and 2 Phil. and Mar. cap 10. All Trials for Treason shall be only according to the Course of the Common Law And though the greater part of that Statute being Temporary be expired yet this Clause is still in Force The Judgment in all Cases of High Treason except for Counterfeiting Coin for a man is That he shall be drawn on an Hurdle or Sledge to the place of Execution and there be Hanged by the Neck to be cut down being yet alive his Privy Members cut off his Bowels ript up taken out and burnt before his face his Headsevered from his Body his Body divided into four Quarters which are to be disposed of as the King shall order But for Counterfeiting Coin only Drawn and Hanged And in both Cases for a Woman for Modesty sake it is only that she shall be Burnt The reasons or signification of this horrid Judgment on a man for Treason are thus by some rendred and Interpreted 1. He is drawn on a Sledg or Hurdle on the ground in the Dirt to shew that his Pride is brought down for Treason commonly springs from Ambition 2. On this Hurdle he is drawn backward to shew that his Actings have been contrary to Order unnatural and Preposterous 3. He is Hanged between Heaven and Earth as unworthy of either 4. He is cut down yet alive and his Privities cut off to shew that he was unfit to Propagate any Posterity 5. His Head is severed from his Body because his mischevious Brain contrived the Treason 6. His Body is divided to shew that all his Machinations and Devices are torn to pieces and brought to nought and into four parts that they may be scattered towards the four Quarters of the World Heading being part of the judgment in Treason the King commonly to persons of Quality Pardons all the rest of the Sentence and so they are only Beheaded But if a person be Attainted of Murder or any other Felony if he be Beheaded 't is no Execution of the Judgment because there the Judgment always is that he be Hanged till he be dead which cannot be altered So that had Count Conning smark lately been Convicted and Condemned for the Murder of Esquire Thynn all his Guinies or his Friends could not have preserved him from the Gallows unless they could have got an intire Pardon Any person being Indicted for Treason may Challenge that is except against or refuse Five and Thirty Jurors peremptorily that is for his pleasure or for reasons best known to himself and without assigning any Cause to the Court But if he Challenge more that is above three full Juries he Forseits his Goods and Judgment of Peinfort dure that is of being pressed to Death shall pass upon him as one that refuseth the Trial of the Law In Cases of Murder and Felony a man cannot Challenge peremptorily above the number of Twenty But with Cause he may except against more And this is by the Stat. of 22. H. 8. cap. 14. And certainly since the Law of England which is a Law of Mercy does in Favour of Life not only order a man to be Tryed by a Jury of his Country and Equals but also allows him to refuse and have Liberty of excepting against so many of those as shall be Impanelled for that purpose It cannot be supposed that the same Law ever intended that the Prisoner should be denyed a Copy of the Pannel of his Jury that so by the Information of his Friends or otherwise he may know their Qualities Circumstances and Inchnations for how else shall he know whom to Challenge peremptorily and whom to Challenge with Cause to allow a man such Liberty of Challenge and give him no opportunity of such Inquiry is but to mock the Prisoner to whom possibly the whole Jury by face and name may be utter Strangers and sure the wisdom of our Laws never thought every Prisoner so skilled in Metoposcopy that meerly by looking on a parcel of men he could tell which of them were indifferent and which biassed against him Another Statute of King Edward the third Anno 2. Edw. 3. cap. 2. In what Cases only Pardon of Felony shall be granted c. ITem Whereas Offendors have been greatly encouraged because the Charters of Pardon have been so easily granted in times past of Man-slaughters Roberies Felonies and other Trespasses against the Peace 2 It is ordained and Enacted that such Charters shall not be granted but only where the King may do it by his Oath that is to say where a man slayeth another in his own Defence or by Misfortune 3 And also they have been encouraged because that the Justices of the Goal-Delivery and of Oyer and Terminer have been procured by great men against the Form of the Statute made in the 27th year of the Reign of King Edward Grandfather to our Lord the King that now is wherein is Contained that Justices Assigned to take Assizes if they be Lay-Men shall make deliverance and if the one be a Clerk and the other a Lay-man that the Lay-Judge with another of the Countrey associate to him shall deliver the Goals 4 Wherefore it is Enacted that Justices shall not be made against the Form of the said Statute 5 And that the Assizes Attaints and Certifications be taken before the Justices commonly Assigned which should be good men and Lawful having knowledg of the Law and none other after the Form if another Statute made in the time of the said King Edward the first 6 And that the Oyers and Terminers shall not be granted but before the Justices of the one Bench or the other or the Justices Errants and that great hurt or horrible Trespasses and of the Kings special Grace after the Form of the Sâ—atute thereof ordained in time of the said Grandfather and none otherwise The Comment Touching this Statute and several others to the same purpose as 14. Edw. 3. cap. 14. and 10. Edw. 3. cap. 2. and 13. R. 2. cap. 1. and 16. R. cap. 6. c. We shall only give you the words of Cook in the third part of his Instit fo 236. What things the King may pardon and in what manner and what he cannot pardon falleth now to be treated of IN case of death of man Robberies and Felonies against the Peace divers Acts of Parliament have Restrained the power of granting Charters of pardons first that no such Charters shall be granted but in case where the King may do it by his Oath Secondly That no man shall obtain Charters out of Parliament Stat. 4. Edw 3. cap 13. And accordingly in a Parliament Roll it is said for the Peace of the Land it would much help if good Justices were appointed in every County if such as be let to mainprize do put
great or highly in favour at Court but sooner or later they hit him and it proved his Ruine Take a few examples King Edw. the second dotes upon Pierce Gaveston a French Gentleman he wastes the Kings Treasures has undeserv'd Honours conserred on him affronts the antient Nobility The Parliament in the beinning of the Kings Reign Complains of him he is banisht into Ireland The King afterwards calls him home and marries him to the Earl of Glocesters Sister the Lords complain again so effectually that the King not only consents to his second Banishment but that if ever he returned or were found in the Kingdom he should be hâ—ld and proceeded against as an Enemy to the State Yet back he comes and is received once more by the King as an Angel who carries him with him into the North and hearing the Lords were in Arms to bring the said Gaveston to Justice plants him for safety in Scarborough Castle which being taken his Head was Chopt off In King Richard the Seconds time most of the Judges of England to gratifie certain corrupt and pernicious Favourites about the King being sent for to Nottingham were by Perswasions and Menaces prevailed with to give false and Illegal Resolutions to certain questions proposed to them declaring certain matters to be Treason which in truth were not so For which in the next Parliament they were called to Account and Attainted and Sir Robert Tresilian Lord Chief Justice of England was drawn from the Tower through London to Tyburn and there Hanged As likewise was Blake one of the Kings Council and Vske the Under-Sheriff of Middlesex who was to pack a Jury to serve the present Turn against certain Innocent Lords and others whom they intended to have had taken off and five more of the Judges were Banisht and their Lands and Goods forfeited And the Archibishop of York the Duke of Ireland and the Earl of Suffolk three of the Kings Evil Councellors were forced to fly and died miserable Fugitives in Forreign Parts In the beginning of King H. the 8ths Reign Sir Richard Empson Knight Edmond Dudley one of the Barons of the Exchequer having by colour of an Act of Parliament to try People for several Offences without Juries committed great oppressions were proceeded against in Parliament and lost their Heads In the 19 Year of the Reign of King James at a Parliament holden at Westminister there were shewn saith Bakers Chron. Fo. 418. two great Examples of Justice which for future Terrour are not unfit to be here related one upon Sir Giles Mompesson a Gentleman otherwise of Good parts but for practising sundry abuses in erecting and seting up new Inns and Ale-houses and exasting great Summes of Money of people by pretence of Letters Patents granted to him for that purpose was sentenced to be degraded from his Knighthood and disabled to Bear any Office in the Common-Wealth though he avoided the Execution by Flying the Land But upon Sir Francis Mitchel a Justice of Peace of Middlesex and one of the Chief Agents the sentence of Degradation was Executed and he made to ride with his face to the Horse tail through the City of London The other Example was of Sir Francis Bacon Viscount St. Albans Lord Chancellour of England who for Bribery was put from his place and Committed to the Tower In King Charles the firsts time most of the Judges that had given their opinions contrary to Law in the Case of Ship-Money were call'd to Account and forced to Fly for the same And in the 19th year of our present Sovereign the Earl of Clarendon Lord Chancellour of England being questioned in Parliament and retiring thereupon beyond the Seas was by a special Act Banished and Disabled In a word it was well and wisely said of that excellent Statesman Sir William Cecil Lord Burleigh and High Treasurer of England That he knew not what an Act of Parliament might not doe which Apothegm was approved by King James and alleadged as I remember in one of his published Speeches And as the Jurisdiction of this Court is so transcendent so the Rules and Methods of Proceedings there are different from those of other Courts For saith Cook 4. Instit fo 15. As every Court of Justice hath Laws and Customs for its Direction some by the Common Law some by the Civil and Canon Law some by Peculiar Laws and customes c. So the High Court of Parliament suis propriis Legibus Consuetudinibus Subsistit Subsists by it's own Peculiar Laws and Customs It is Lex Consuetudo Parliamenti the Law and Custom of Parliament that all weighty matters in any Parliament moved concerning the Peers or Commons in Parliament assembled ought to be determined adjudged and discussed by the Course of the Parliament and not by the Civil Law not yet by the Common Laws of this Realm used in more Inseriour Courts Which was so declared to be Secundum Legem Consuetudinem Parliaments according to the Law and Custom of Parliament concerning the Peers of the Realm by the King and all the Lords Spiritual and Temporal and the like pari ratione for the same reason is for the Commons for any thing moved or done in the House of Commons and the rather for that by another Law and Custom of Parliament the King cannot take notice of any thing said or done in the House of Commons but by the Report of the House of Commons and every Member of the Parliament hath a Judicial place and can be no Witnâ—â—â— And this is the Reason that Judges ought not to give any opinion of a Matter of Parliament because it is not to be decided by the Common Laws but Secundum Legem Consuetudinem Parliamenti according to the law and Custom of Parliament And so the Judges in diverse Parliaments have confessed And some hold that every offence Committed in any Court panishible by that Court must be punished proceeding Criminally in the same Court or in some higher and not any Inferiour Court and the Court of Parliament hath no higher Thus Cook Great complaints have been made about a late House of Commons sending for some Persons into Custody by their Serjeant at Arms but certainly they did no more therein then what their Predecessiors have often done every Court must be supposed Armed with a power to desend it self from Affronts and Insolencies In all Ages when the House has appointed particular Committees hath it not been usual to order that they shall be impower'd to send for Papers Persons and Records But to bring Men to a sober Consideration of their Duty and Danger I shall give a few Instances besides those before mentioned of what the House of Commons hath done in former Ages 1. Anno 20. Jacobi Doctor Harris Minister of Bletchingly in Surry for misbehaving himself by Preaching and otherwise about Election of Members of Parliament upon complaint was called to the Bar of the House of Commons and there as a Delinquent on his Knees
thereby p. 205. What persons ought to be Jury men and how Qualified p. 209. Jurors in Antient Law-books call'd Judges p. 211. Of the Duty of Grand Juries p. 212. Their Oath p. 213. That Juries are Judges of Law in some respects as well as Fact p. 220. to p. 223. That Juries are not fineable or any way to be punished under pretence of going contrary to Evidence or against the Judges Directions p. 223. The Conclusion Bushels Case reported by the Learned Sir John Vaughan Licensed by the present Lord Chancellor the Lord Chief Justice North and all the Judges then in England THE PROEM THE Constitution of our English Government the best in the World is no Arbitrary Tyranny like the Turkish Grand Seignior's or the French Kings whose Wills or rather Lusts dispose of the Lives and Fortunes of their unhappy Subjects Nor an Oligarchy where the great ones like Fish in the Ocean prey upon and live by devouring the lesser at their pleasure Nor yet a Democracy or popular State much less an Anarchy where all confusedly are hail fellows well met But a most excellently mixt or qualified Monarchy where the King is vested with large Prerogatives sufficient to support Majesty and restrain'd only from Power of doing himself and his People harm which would be contrary to the very end of all Government and is properly rather weakness than power the Nobility adorn'd with Priviledges to be a Screen to Majesty and a refreshing Shade to their Inferiours and the Commonalty too so Guarded in their Persons and Properties by the fence of Law as renders them Free-men not Slaves In France and other Nations the meer Will of the Prince is Law his Word takes off any mans Head imposes Taxes or seizes any mans Estate when how and as often as he lists and if one be Accused or but so much as suspected of any Crime he may either presently Execute him or Banish or Imprison him at pleasure or if he will be so Gracious as to proceed by Form of their Laws if any two Villains will but swear against the poor Party his Life is gone Nay if there be no Witnesses yet he may be put to the Rack the Tortures whereof make many an Innocent Person confess himself Guilty and then with seeming Justice he is Executed or if he prove so stout as in Torments to deny the Fact yet he comes off with Disjoynted Bones and such Weakness as renders his Life a Burthen to him ever after But in England the Law is both the Measure and the Bond of every Subjects Duty and Allegiance each man having a fixed Fundamental Right born with him as to Freedom of his Person and Property in his Estate which he cannot be deprived of but either by his consent or some Crime for which the Law has Impos'd such a Penalty or Forfeiture For all our Kings take a solemn Oath At their Coronation to Observe and cause the Laws to be kept which was done by our present most Gracious Soveraign Likewise all our Judges take an Oath wherein amongst other points they swear To do equal Law and Right to all the Kings Subjects Rich and Poor and not to delay any Person of Common Right for the Letters of the King or of any other Person or for any other Cause But if any such Letters come to them they shall proceed to do the Law the same Letters notwithstanding Therefore saith Fortesoue who was first Chief Justice and afterwards Lord Chancellor to King Henry the 6th in his Book de Laudibus Legum Angliae cap. 9. Non potest Rex Angliae c. The King of England cannot alter nor change the Laws of his Realm at his pleasure For why he Governeth his People by Power not only Royal but also Politick If his Power over them were only Regal then he might change the Laws of his Realm and charge his Subjects with Tallage and other Burthens without their consent and such is the Dominion that the Civil Laws purport when they cry Quod principi plecuit Legis habet Vigorom The Princes pleasure has the force of a Law But from this much differeth the power of a King whose Government over his People is Politick For he can neither change Laws without the consent of his Subjects nor yet charge them with Impositions against their Wills Wherefore his People do frankly and freely enjoy and occupy their own Goods being Ruled by such Laws as they themselves desire Thus Fortescue with whom Accords Bracton a Reverend Judge and Law-Author in the Reign of King Henry the third saying Rex in Regno suo superiores habet Deum Legem The King in his Realm hath two Superiors God and the Law for he is under the Directive though not Coercive Power of the Law and on the same Score Judge Vaughan speaking of our Fundamental Laws which are Coeval with the Government sticks not to say The Laws of England were never the Dictates of any Conquerors Sword or the Placita or good Will and pleasure of any King of this Nation or to speak Impartially and Freely the Results of any Parliament that ever sate in this Land And the late cited Fortescue in his 13 chap. has a very apt similitude to Illustrate and Demonstrate this The Law says he taketh its name a Ligando to bind for thereby the Politick Body is knit and preserv'd together as the Natural Body by the Bones and Sinews and Members which retain every one their proper Functions And as the Head of a Body Natural cannot change his Sinews nor cannot deny or with-hold from his inferiour Members their peculiar Powers and several nourishments of Blood and Spirits no more can a King which is the Head of a Body Politick change the Laws of that Body nor withdraw from his People their proper Substance against their Wills and Consents in that behalf 'T is true the Law it self affirms The King can do no wrong which proceeds not only from a presumption that so Excellent a Person will do none But also because he Acts nothing but by Ministers which from the lowest to the highest are answerable for their doings so that it a King in Passion should command A. to kill B. without process of Law A. may yet be prosecuted by Indictment or upon an Appeal where no Royal Pardon is allowable and must for the same be Executed such Command notwithstanding This Original happy frame of Government is truly and properly call'd an English mans Liberty a Priviledge not to exempt from the Law but to be freed in Person and Estate from Arbitrary Violence and Oppression A greater Inheritance saith Judge Cook is deriv'd to every one of us from our Laws that from our Parents For without the former what would the latter signifie And this Birth-right of English-men shines most conspicuously in two things 1. Parliaments 2. Juries By the first the Subject has a share by his chosen Representatives in the Legislative or Law-making Power for
place then under pretence of Service as Ambassador or the like he might send him into the furthest part of the World which being an Exile is prohibited by this Act. 5. No Man destroyed That is forejudged of Life or Limb or put to Torture or Death every oppression against Law by colour of any usurped Authority is a kind of destruction And the words Aliquo modo any otherwise are added to this Verb destroyed and to no other Verb in this Chapter and therefore all things by any manner of means tending to destruction are prohibited as if a Man be accused or Indicted of Treason or Felony his Lands or Goods cannot be granted to any no not so much as by promise nor any of his Lands or Goods seized into the Kings hands before he is Attainted For when a Subject obtaineth a promise of the forfeiture many times undue means and more violent prosecution is used for private Lucre tending to destruction than the quiet and just proceeding of the Law would permit and the party ought to live of his own until Attainder 6. By Lawful Judgment of his Peers That is by his Equals Men of his own Rank and Condition The general division of Persons by the Law of England is either one that is Noble and in respect of his Nobility of the Lords House of Parliament or one of the Commons and in respect thereof of the House of Commons in Parliament And as there be divers degrees of Nobility as Dukes Marquesses Earls Viscounts and Barons and yet all of them are comprehended under this word Peers and are Peers of the Realm so of the Commons there be Knights Esquires Gentlemen Citizens and Yeomen and yet all of them of the Commons of the Realm And as every of the Nobles is one a Peer to another though he be of a several degree so it is of the Commons and as it hath been said of Men so doth it hold of Noble Women either by Birth or Marriage And forasmuch as this Judgment by Peers is called Lawful it shews the Antiquity of this manner of Trial It was the ancient accustomed Legal Course long before this Charter Or by the Law of the Land That is by due process of Law for so the words are expresly expounded by the Stat. of 37 Edw. 3. chap. 8. And these words are specially to be referred to those foregoing to whom they relate As none shall be condemn'd without a lawful Trial by his Peers so none shall be taken Imprison'd or put out of his Free-hold without due process of the Law that is by the Indictment or Presentment of good and lawful Men of the place in due manner or by Writ Original of the Common-Law Now seeing that no Man can be Taken Arrested Attached or Imprisoned but by due process of Law and according to the Law of the Land these conclusions hereupon do follow 1. That the Person or Persons which commit any must have lawful Authority 2. It is necessary that the Warrant or Mittimus be lawful and that must be in Writing under his Hand and Seal 3. The Cause must be contained in the Warrant as for Treason Felony c. Suspicion of Treason or Felony or the like particular Crime For if it do not thus specifie the Cause if the Prisoner bring his Habeas Corpus he must be discharged because no Crime appears on the Return Nor is it in such Case any offence at all if the Prisoner make his escape whereas if the Mittimus contain the Cause the escape would respectively be Treason or Felony though in Truth he were not Guilty of the first offence And this mentioning the Cause is agreeable to Scripture Acts 5. 4. The Warrant or Mittimus containing a lawful Cause ought to have a lawful conclusion c. And him safely to keep until he be delivered by Law c. and not until the party committing shall further Order If any Man by colour of any Authority where he hath not any in that particular Case shall presume to Arrest or Imprison any Man or cause him to be Arrested or Imprisoned this is against this Act and it is most hateful when it is done by Countenance of Justice King Edw. the 6th did Incorporate the Town of Saint Albans and granted to them to make Ordinances c. They made a by-Law upon pain of Imprisonment and it was adjudged to be against this Statute of Magna Charta so it had been if such an Ordinance had been contained in the Patent it self We will sell to no Man deny to no Man c. This is spoken in the Person of the King who in Judgment of Law in all his Courts of Justice is present And therefore every Subject of this Realm for injury done to him in Bonis Terris vel Persona in Person Lands or Goods by any other Subject Ecclesiastical or Temporal whatever he be without exception may take his Remedy by the course of the Law and have Justice and Right for the Injury done him Freely without sale Fully without any denial and Speedily without delay For Justice must have three Qualities it must be Libera Free for nothing is more odious than Justice set to sale Plena Full for Justice ought not to limp or be granted Piece-meal and Celeris speedy Quia Dilatio est quaedam negatio Delay is a kind of denial And when all these meet it is both Justice and Right We will not deny nor delay any Man c. These words have been excellently expounded by latter Acts of Parliament that by no means common right or common law should be disturbed or delayed no though it be commanded under the Great Seal or Privy Seal Order Writ Letters Message or Commandment whatsoever either from the King or any other and that the Justices shall proceed as if no such Writs Letters Order Message or other Commandment were come to them all our Judges swear to this for 't is part of their Oaths so that if any shall be found wresting the Law to serve a Court Turn they are perjur'd as well as unjust The Common-laws of the Realm should by no means be delayed for the Law is the surest Sanctuary that a Man can take and the strongest Fortress to protect the weakest of all Lex est tutissima Cassis the Law is a most safe Head-piece and sub Clipeo legis nemo decipitur no man is deceived whilst the Law is his Buckler but the King may stay his own suit as a Capias pro fine for the King may Respit his Fine and the like All Protections that are not Legal which appear not in the Register nor warranted by our Books are expresly against this Branch nulli diffâ—remus we will not delay any Man As a Protection under the Great Seal granted to any Man directed to the Sheriffs c. and commanding them that they shall not Arrest him during a certain time at any other Mans suit which hath words in it Per Prerogativâ—m nostram
quam nolumus esse Arguendam By our Prerogative which we will not have disputed Yet such Protections have been argued by the Judges according to their Oath and Duty and adjuged to be void As Mich. 11 H. 7. Rot. 124. a Protection granted to Holmes a Vintrier of London his Factors Servants and Deputies c. Resolved to be against Law Pasch 7. H. 8. Rot. 66. such a Protection disallowed and the Sheriff amerced for not executing the Writ Mich. 13. and 14 Eiiz. in Hitchcocks Case and many other of latter time And there is a notable Record of Ancient time in 22 E. 1. John de Mershals Case Non pertinct ad vicecomitem de protectione Regis Judicare imo ad Curiam Justice or Right We shall not sell deny or delay Justice and Right neither the End which is Justice nor the Mean whereby we may attain to the End and that is the Law Right is taken here for Law in the same sence that Justice often is so called 1. Because it is the Right Line whereby Justice distributive is Guided and Directed and therefore all the Commissioners of Oier and Terminer of Gaol-delivery of the Peace c. have this Clause Facturi quod ad Justititiam pertinet secundum Legem Consuetudinem Angliae that is to do Justice and Right according to the Rule of the Law and Custom of England and that which is called Common Right in 2 E. 3. is called Common-Law in 14 E. 3. c. and in this sence it is taken where it is said Ita quod stat Rectus in Curia id est Legi in Curia 2. The Law is called Rectum because it discovereth that which is Tort Crooked or Wrong for as Right signifieth Law so Tort Crooked or Wrong signifieth Injuries and Injuria est contra Jus Injury is against Right Recta Linea est index sui obliqui a right line is both declaratory of it self and the oblique Hereby the Crooked Cord of that which is called Discretion appeareth to be unlawful unless you take it as it ought to be discretio est discernere per Legem quid sit Justum discretion is to discern by the Law what is Just 3. It is called Right because it is the best Birth-right the Subject hath for thereby his Goods Lands Wife and Children his Body Life Honour and Estimation are protected from Injury and Wrong Major Haereditas venit unicunque nostrum a Jure Legibus quam a Parentibus A greater Inheritance descends to us from the Laws than from our Progenitors Thus far the very words of that Oracle of our Law the Sage and Learned Coke which so fully and excellently explain this incomparable Law that it will be superfluous to add any thing further thereunto A Confirmation of the Charters of the Liberties of England and of the Forrest made in the 35th Year of Edw. the First EDward by the Grace of God King of England Lord of Ireland and Duke of Guyan to all those these present Letters shall hear or see Greeting Know ye that we to the Honour of God and of Holy Church and to the profit of our Realm have granted for us and our Heirs that the Charter of Liberties and the Charter of the Forrest which were made by Common Assent of all the Realm in the time of King Henry our Father shall be kept in every point without Breach And we will that the same Charter shall be sent under our Seal as well to our Justices of the Forrest as to others and to all Sheriffs of Shires and to all our other Officers and to all our Cities throughout the Realm together with our Writs in the which it shall be contained that they cause the aforesaid Charters to be published and to declare to the People that we have Confirmed them in all points And that our Justicers Sheriffs Majors and other Ministers which under us have the Laws of our Land to guide shall allow the same Charters pleaded before them in Jugdment in all their points that is to wit the Great Charter as the Common Law and the Charter of the Forrest for the Wealth of our Realm Chap. 2. And we will that if any Judgment be given from henceforth contrary to the points of the Charters aforesaid by the Justicers 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 Cap. 3. And we will that the same Charters shall be sent under our Seal to Cathedral Churches throughout our Realm there to Remain and shall be read before the People two times by the Year Cap. 4. And that all Archbishops and Bishops shall pronounce the Sentence of Excommunication against all those that by Word Deed or Council do contrary to the foresaid Charters or that in any point break or undo them And that the said Curses be twice a Year ddenounced and published by the Prelates aforesaid And if the same Prelates or any of them be Remiss in the Denunciation of the said Sentences the Archbishop of Canterbury and York for the time being shall compel and distrain them to the Execution of their Duties in Form aforesaid Cap. 5. And for so much as divers People of our Realm are in fear that the Aids and Tasks which they have given to us beforetime towards our Wars and other Business of their own Grant or good Will however they were made might turn to a bondage to them and their Heirs because they might be at another time found in the Rolls and likewise for the prizes taken throughout the Realm by our Ministers We have granted for us and our Heirs that we shall not draw no such Aids Tasks nor Prises into a Custom for any that hath been done heretofore be it by Roll or any other Precedent that may be founden Cap. 6. Moerover we have granted for us and our Heirs as well to Archbishops Bishops Abbots Priors and other folk of Holy Church as also to Earls Barons and to all the Commonalty of the Land that for no business from henceforth we shall take such manner of Aids Tasks or Prises but by the common assent of the Realm and for the common profit thereof saving the Ancient Aids and Prises due and accustomed Cap. 7. And for so much as the more part of the Commonalty of the Realm find themselves sore grieved with the Maletot of Woolls that is to wit a Toll of Forty Shillings for every sack of Wooll and have made Petition to us for to Release the same We at their Request have clearly Released it and have granted for us and our Heirs that we shall not take such things without their common consent and good will saving to Us and Our Heirs the Custom of Woolls Skins and Leather granted before by the Commonalty aforesaid In Witness of which things we have caused our Letters to be Patent Witness Edward our Son at London the 10th of October and the Twenty
when they had them best 2. And if any Statutes have been made by Us and our Ancestors or any Customs brought in contrary to them or any manner of Article contained in this present Charter We Will and grant that such manner of Statutes and Customs shall be void and frustrate for evermore CHAP. V. Pardon granted to certain Offenders MOreover we have pardoned Humphrey Bohun Earl of Hereford and Essex Constable of England Roger Earl of Norfolk and Suffolk Marshal of England and other Earls Barons Knights Esquires and namely John de Ferrariis with all other being of their Fellowship Consederacy and Bond and also of other that hold 20 l. Land in our Realm whether they hold of us in Chief or of others that were appointed at a day certain to pass over with us into Flanders the Rancour and Evil will born against us and all other Offences if any they have committed against us unto the making of this present Charter CHAP. VI. 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 Archbishops and Bishops for ever shall read this present Charter in Cathedral Churches twice in the Year and upon the Reading thereof in every of their Parish-Churches shall openly Denounce accursed all those that willingly do procure to be done any thing contrary to the tenour force and effect of this present Charter in any point and article In witness of which thing we have set our Seal to this present Charter together with the Seals of the Archbishops Bishops 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 faithful Aid to the keeping thereof c. The Comment THe word Tallage is derived from the French word Tailler to share or cut out a part and is Metaphorically used for any Charge when the King or any other does cut out or take away any part or share out of a Mans Estate and being a general word it includes all Subsidies Taxes Tenths Aids Impositions or other Charges whatsoever The word Maletot signifies an Evil that is an unjust Toll Custom Imposition or Sum of Money The occasion of making this Statute was this King Edward being injured by the French King resolves to make War against him and in order thereunto requires of Humphrey le Bohun Earl of Hereford and Essex and Constable of England and of Roger Bigot Earl of Norfolk and Suffolk and Marshal of England and of all the Earls Barons Knights Esquires and Freeholders of 20 l. Land whether they held of him in Capite to contribute towards such his expedition that is to go in Person or find sufficient Men in their places in his Army which the Constable and Marshal and many of the Knights and Esquires and especially this John Ferrers taking part with them and all the Freemen stoutly denyed unless it were so ordained and determined by common consent in Parliament according to Law And it seems the contest grew so hot that Baker's Chronicle Folio 99. relates a strange Dialogue that pass'd between them viz. That when the Earl Marshal told the King That if his Majesty pleased to go in Person he would then go with him and march before him in the Van-Guard as by right of Inheritance he ought to do but otherwise he would not stir the King told him plainly he should go with any other though he went not in Person I am not so bound saith the Earl neither will I take that Journey without you The King swore By God Sir Earl you shall either go or Hang And I swear by the same Oath said the Earl I will neither go nor Hang. And so the King was forc'd to dispatch his expedition without them And yet saith my Lord Coke altho the King had conceived a deep displeasure against the Constable Marshal and others of the Nobility Gentry and Commons of the Realm for denying that which he so much desired yet for that they stood in defence of their Laws Liberties and free Customes the said King Edward the First who as Sir William Herle Chief Justice of the Common-Pleas who lived in his time and served him said in the time of King Edward the 3d. was the wisest King that ever was did after his return from beyond the Seas not only consent to this Statute whereby all such Tallages and Impositions are forbidden for the future but also passes a Pardon to the said Nobles c. of all Rancour Ill-will and Transgressions If any they have committed which last words were added lest by acceptance of a Pardon of Transgression they should implicitely confess that they had Transgressed so careful were the Lords and Commons in former times to preserve the Ancient Laws Liberties and free Customs of their Country But note these words Si quas fecerint If any they have committed are left out in all the Printed Books of Statutes but they are in this Statute recited by Coke in his second Book of Institutes Fo. 535. and specially noted which he would never have done if it had not been so in the Rolls And since 't is probable them may be many more like Omissions Mistakes or Falsifications crept into the Prints and for that the Râ—â—â—â—d not the printed Satute-Book varying from the Records is the Law It were to be wished that all the Rolls of Acts of Parliament were carefully by some Persons of Learning and Integrity view'd and Compared with the Prints and notice taken of all such Varâ—â—tions and of Errors committed in the Translations and of any Statutes of a publick Import if in force that were never printed and the same to be made publick Anno 25 Edw. 3. CAP. II. A Declaration what Offences shall be adjudged Treason WHereas diverse opinions have been before this time in what Case Treason shall be said and in what not 2. The King at the Request of the Lords and of the Commons hath made a declaration in the manner as hereafter followeth that is to say When a Man doth Compass or Imagine the Death of our Lord the King or of our Lady his Queen or of their eldest Son and Heir 3. Or if a man do violate the Kings Companion or the Kings Eldest Daughter unmarried or the Wife of the Kings Eldest Son and Heir 4. Or if a Man do Levy War against our Lord the King in his Realm or be Adherent to the Kings Enemies in his Realm giving them Aid and Comfort in the Realm or elsewhere and thereof be provably Attainted of open Deed by the People of their Condition 5. And if a Man Counterfeit the Kings Great or Privy-Seal or his Money 6. And if a Man bring false Money into this Realm Counterfeit to the Money of England as the Money called Lushburgh or other like to the said Money of England knowing the Money to be false to Merchandise
said probably Attainted the same is a great error For the words of the Record are Et de ceo PROVABLEMENT soit Attaint And shall be thereof PROVABLY Attaint And I cannot but admire that such a Gross mistake should be suffered since my Lord Coke has so expresly observed the difference in these words following 3 Instit fol. 12. In this Branch says he four things are to be observed 1. This word Provablement Provably that is upon direct and manifest proof not upon Conjectural presumptions or Inferences or strains of Wit but upon good and sufficient proof And herein the Adverb Provablement provably hath a great force and signifieth a direct and plain proof which word the King the Lords and Commons in Parliament did use for that the offence was hainous and was so heavily and severely punished as none other the like and therefore the offender must Provably be Attainted which words are as forcible as upon direct and manifest proof Note the word is not Probably for then Commune Argumentum might have served but the word is Provably be Attainted Secondly This word Attaint necessarily implyeth that he be proceeded with and Attainted according to the due Course and proceedings of Law and not by Absolute power or by other means as in former times had been used And therefore if a Man doth adhere to the Enemies of the King or be slain in open War against the King or otherwise die before the Attainder of Treason he forfeiteth nothing because as this Act saith he is not Attainted wherein this Act hath altered that which before this Act in Case of Treason was taken for Law And the Statute of 34 E. 3. Cap. 12. saves nothing to the King but that which was in Esse and pertaining to the King at the making of that Act. And this appeareth by a Judgment in Parliament in Ann. 29. H. 6. Cap. 1. That Jack Cade being slain in open Rebellion could no way be punished or forfeit any thing and therefore was Attainted by that Act of High Treason Thirdly Of open Deed per Apertum Factum these words strengthen the former Exposition of Provablement an Overt Act must be alledged in every Indictment upon this Act and proved Compassing by bare words is not an Overt Act as appears by many Temporary Statutes against it But there must be some open Act which must be manifestly proved As if divers do Conspire the Death of the King and the manner how and thereupon provide Weapons Powder Poison Harness send Letters or the like for the Execution of the Conspiracy If a Man be Arraigned upon an Indictment of High Treason and stand Mute that is refuse to Plead he is not to be Pressed to death but shall have the same Judgment and incurr such forfeiture as if he had been Convicted by Verdict or had confessed it For this standeth well with this word Provablement for fatetur facinus qui judicium fugit But otherwise it is in case of Petit Treason Murder or other Felony If a Subject Conspire with a Forreign Prince to Invade the Realm by open Hostility and prepare for the same by some Overt Act this is a sufficient Overt Act for the death of the King Fourthly The Composition and Connexion of the words are to be observed viz. Thereof be Attainted by open Deed This as was resolved by the Justices in Easter Term 35 of Eliz. relateth to the several and distinct Treasons before expressed and specially to the Compassing and Imagination of the death of the King c. for that is a secret in the Heart and therefore one of them cannot be an Overt Act for another as for example A Conspiracy is had to Levy War this as hath been said and so resolved is no Treason by this Act until it be levied therefore it is no Overt Act or manifest proof of the Compassing the Death of the King within this Act for the Words are de ceo c. thereof that is of the Compassing of the death Divers latter Acts of Parliament have Ordained That compassing by bare Words or Sayings should be Treason but are all either Repealed or Expired except only that of the 12 Car. 2. herein after recited which is only to be in force during the Life of his present Majesty whom God preserve And it was wont to be said bare Words may make an Heretick but not a Traitor without an Overt Act. And the Wisdom of the Makers of this Law would not make Words only to be Treason seeing such variance commonly amongst the Witnesses is about the same as few of them agree together But if words be set down in Writing by the Delinquent himself That is a sufficient Overt Act within this Statute In the Preamble of the Statute of 1 Mar. concerning the Repeal of certain Treasons declared after this Statute of the 25. of Edw. 3. and before that time and bringing back all things to the measures of this Statute It is agreed by the whole Parliament That Laws justly made for the preservation of the Common-wealth without extream punishment are more often obeyed and kept than Laws and Statutes made with great and extream punishments And in special such Laws and Statutes so made whereby not only the ignorant and rude unlearned People but also learned and expert People minding honesty are oftentimes trapped and snared yea many times for Words only without other Fact or Deed done or perpetrated Therefore this Act of 25 Edw. 3. doth provide that there must be an Overt Act. But words without any Overt Act are to be punisht in another degree as an high Misprision By People of their condition That is per Pares by their Equals 7. As to Treason by Levying War against the King we must note that thô Conspiring or Compassing to Levy War without a War de Facto be no Treason yet if many Conspire a War and only some few Actually Levy it all are guilty of the Treason Raising a Force to burn or throw down a particular Inclosure is only a Riot but if it had been to have gone from Town to Town to throw down all Inclosures or to change Religion or the like it were Levying of War because the intended mischief is Publick Holding a Fort or Castle against the Kings Forces is Levying of War 8. As touching the Interpretative Treasons by Killing the Chancellor Treasurer Justice of one or the other Bench Justice in Eyre or of Assize or Oier and Terminer Note 1. This extends but only to the Persons here named not to the Lord Steward Constable or Marshal or Lords of Parliament Secondly It extends to those only during their Office Thirdly It extends only to Killing not Wounding without Death But by the Stat. 3 H. 7. C. 14. Compassing to Kill the King or any of his Council is made Felony 9. Counterfeiting the Great or Privy Seal is Treason but it must be an Actual Counterfeiting thereof Compassing to do it is no Treason Affixing the Great Seal by
in good Sureties as Esquires or Gentlemen And that no pardon were granted but by Parliament Thirdly For that the King hath granted Pardons of Felonies upon false Suggestions it is provided that every Charter of Felony which shall be granted at the Suggestion of any the name of him that maketh the Suggestion shall be comprised in the Charter and if the Suggestion be found untrue the Charter shall be disallowed And the like provision is made by the Statute of 5. H. 4. Cap 2. for the Pardon of an Approver Fourthly It is provided that no Charter of Pardon for Murder Treason or Rape shall be allowed c. If they be not specified in the same Charter Statute 13. R 2. Before this Statute of 13. R 2. by the Pardon of all Felonies Treason was Pardoned and so was Murder c. At this day by the Pardon of all Felonies the death of man is not Pardoned These be excellent Laws for direction and for the Peace of the Realm But it hath been conceived which we will not question that the King may dispence with these Laws by a Non Obstante notwithstanding be it General or Special albeit we find not any such Clauses of non Obstante notwithstanding to dispense with any of these Statutes but of late times These Statutes are excellent Instructions for a Religious and Prudent King to follow for in these Cases Vt summae potestatis Regiae est posse quantum velit sic Magnitudinis est velle quantum possit As it is the highest Kingly power to be able to Act what he Wills so it is his Greatness and Nobleness to Will only what he lawfully can Hereof you may Read more in Justice Standford Lib. 2. Cap. 35. in diverse places of that Chapter of his grave Advice in that behalf Most certain it is that the Word of God has set down this undisputable General Rule Quia non profetur Cito Contra malos sententia filii hominum sine timore ullo perpetrant because Sentence against evil men is not speedily Executed therefore the hearts of the Children of men are set in them to do evil And thereupon the Rule of Law is grounded Spes Impunitatis Continuum Affectum tribuit delinquendi the hope of Impunity encourageth Offenders Et veniae facilitas Incentivum est Delinquendi and the facility of obtaining Pardon is an Incentive to Commit Offences This is to be Added that the Intention of the said Act of 13. R. 2. Was not that the King should grant a Pardon of Murder by express Name in the Charter but because the whole Parliament conceived that he would neuer Pardon Murder by special Name for the Causes aforesaid therefore that provision made which was as in other Cases I have observed grounded upon the Law of God Quicunque effuderit humanum sanguinem fundetur sanguis illius ad imaginem quippe Dei creatus est homo nec aliter Expiati potest nisi per ejus sanguinem qui alterius sanguinem effuderit whosoever shall shed mans blood by man also shall his blood be shed because man was Created after the Image of God neither can it be expiated otherwise then by his blood who spilt the blood of another And the words of every Pardon is after the Recital of the offence nos pietate moti c. we being moved with Piety c. But it can be no Piety to violate an express Law of God by letting Murder scape unpunisht Thus Coke whereby we see what opinion he had of such Pardons A brief digression concerning the Nature of APPEALS THis Discourse of Pardons puts us in mind of another kind of Legal Prosecution called an Appeal of which it may be very convenient to give the Reader some brief account You must know then for several Offences for which a man deserveth death and particularly for Murder there are two ways to bring him to Answer for the same one by Indictment which is at the Kings Suit and the other by Appeal which is at the Suit of a Party which is wronged or injured by the Murder as a Woman whose Husband or a Child or Brother whose Father or Brother is Killed Now upon an Indictment if the Offender be found Guilty because it s to be at the Suit of the King it has been said by some may be and too often a Pardon has been obtained tho even That too be against Law as appears by the Premisses But in an Appeal all agree the King can grant no Pardon Nay if a person be tryed by Indictment and Acquitted or Convicted and get a Pardon yet an Appeal may be brought and if he be thereupon Convicted notwithstanding such his former Acquital or Pardon he must be Hanged The word Appeal is derived from the French Verb Appeller to Call because he or she that brings it Calls the Defendant to Judgment but the meaning thereof is all one with An Accusation And is peculiarly in Legal signification applyed to Appeals of Three sorts First an Appeal brought by an Heir Male for some wrong done to his Ancestor whose Heir he is Secondly Of wrong done to an Husband and is by the Wife only if it be for the death of her Husband to be Prosecuted The third is of wrongs done to the Appellants themselvess as for Robbery Rape or Maim Coke 1. Instit Sect. 500. Note that this Appeal must be brought within a year and a day after the Murder is committed For afterwards it cannot be brought at all And antiently it was customary not to bring an Indictment for the King till after the year and the day waiting in the mean time for the Prosecution of the Party but this was found very inconvenient for the Party was frequently compounded with and at the years end the business was forgot and so Offenders escaped Justice And therefore the same was altered by the Statute 3. Hen. 7. Cap. 1. Whereby it is Enacted That the Coroner shall do his Office and the Offenders may be Arraigned at any time within the year at the Kings Suit but if Acquitted yet the party within the year and day should have liberty to bring an Appeal against such person either Acquitted or Attainted if the benefit of the Clergy be not before thereof had And in order thereunto that when any person happened to be Acquitted for the death of a man within the year the Justices before whom he is Acquitted shall not suffer him to go at large but either to remit him again to the Prison or else to let him to Bail after their discretion till that the day and the year be passed that so he may be forth coming to Answer an Appeal if it shall happen to be brought Thus that Statute as to the latter Clause whereof you see the Judges have power in Case of Acquittal to keep the Party in Prison still till the day and year be over Or else to admit him to Bail and tho this be left to their Discretion yet it must
whereupon he demanded Judgment whether the Plaintiffe ought to maintain that Appeal he had brought To which the Plaintiffe demurred in Law And in this Case three points were adjudged by Sir Christopher Wray Sir Thomas Gawdy and the whole Court First That the matter of the Bar had been a good Bar of the Appeal by the Common Law as well as if the Clergy had been Allowed For that the Defendant upon his Confession of the Indictment had prayed his Clergy which the Court ought to have granted and the deferring of the Court to be advised ought not to prejudice the Party Desendant albeit the Appeal was Commenced before the Allowance of it The second point adjudged was that this Case was out of the Statute of 3 Hen. 7. For that the words of that Act are If it fortune that the same Felons and Murderers and Accessaries so Arraigned or any of them to be Acquitted or the Principal of the said Felony or any of them to be Attainted the Wife or next Heir of him so slain c. may have their Appeal of the same Death and Murder against the Person so Acquitted or against the said Principals so Attainted if they be alive and that THE BENEFIT OF HIS CLERGY THEREOF before be not had And in this the Defendant Holcroft was neither Acquitted nor Attainted but Convicted by Confession and the Benefit of the Clergy only prayed as is aforesaid so as the Statute being penal concerning the Life of Man and made in Restraint of the Common Law was not to be taken by Equity but is Casus Omissus a Case Omitted and left to the Common Law As to the Third is was objected that every Plea ought to have an apt Conclusion and that the Conclusion in this Case ought to have been Et petit judicium si praediit Thomas Holcroft Iterum de eadem morte de qua semel Convictus fuit Respondere compelli debeat And he does ask judgment if the above mentione Thomas Holcroft shall be obliged to answer againe for the same death he was once Convicted of But it was adjudged that either of both Conclusions was sufficient in Law And therefore that exception was disallowed by the Rule of the Court. Note the ancient Law was that when a Man had judgment to be hanged in an Appeal of Death that the Wife and all the Blood of the Party slain should draw the Defendant to Execution and Gascoigne said Issint fuit in diebus nostris so it was done in our Days And thus much occasionally about Appeals which we the rather inserted because the practice thereof through I know not whose negligence has been almost lost or forgot till some few Years ago a Woman in Southwark revived it against one that killed her Husband and got a pardon for it but she Prosecuted him on Appeal had judgment against him and he was Executed since which time the same Course has been frequently talkt of and brought but for the most part to the shame I think of those Women or Children who make such Compositions for their Husbands or Fathers Blood they have been by some secret Bargains or Compensations husht up and seldom effectually followed Two other Statutes of King Edw. 3. Anno 4. Edw. 3. cap. 14. A Parliament shall be holden once every year ITem It is accorded that a Parliament shall be holden every year once and more often if need be Anno 36. Edw. 3. cap. 10. A Parliament shall be holden once in the year ITem for maintenance of the said Articles and Statutes and Redress of dibers MISCHIEFS and GRIEVANCES which daily happen a Parliament shall be holden every year as another time was ordained by Statute The Comment BEfore the Conquest as the Victory of Duke William of Normandy over Harold the Usurper is commonly though very improperly called Parliaments were to be held twice every year as appears by the Laws of King Edgar cap. 5. and the Testimony of the Mirrour of Justices cap. 1. sect 3. For the Estates of the Realm King Alfred caused the Committees some English Translations of that ancient Book read Earls but the word seems rather to signifie Commissioners Trustees or Representatives to meet and ordained for a PERPETUAL USAGE that twice in the year or ostner if need were in time of Peace they should Assemble at London to speak their Minds for the guiding of the People of God how they should keep themselves from Offences live in quiet and have right done them by certain Vsages and sound Judgments King Edward the first says Cook 4. Instit fol. 97. kept a Parliament once every two years for the most part And now in this King Edward the Thirds time one of the wisest and most glorious of all our Kings It was thought fit to Enact by these two several Statutes That a Parliament should be held once at least every year which two Statutes are to this day in full Force For they are not Repealed but rather Confirmed by the Statute made in the 16th of our present Soveraign King Charles the Second Cap. 1. Intituled An Act for the Assembling and holding of Parliaments once in three years at the least The words of which are as follow Because by the ancient Laws and Statutes of this Realm made in the Reign of King Edward the third Parliaments are to be held very often your Majesties Humble and Loyal Subjects the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled most Humbly do beseech your most Excellent Majesty that it may be declared and Enacted 2 And be it declared and Enacted by the Authority aforesaid that hereafter the sitting and holding of Parliaments shall not be intermitted or discontinued above Three Years at the most but that within three years from and after the Determination of this present Parliament so from time to time within three years after the Determination of and other Parliament or Parliaments or if there be occasion more or oftner Your Majesty your Heirs and Successors do Issue out your Writs for calling Assembling and holding of another Parliament to the end there may be a frequent calling Assembling and holding of Parliaments once in three years at the least Agreeable to these good and wholsome Laws are those gracious Expressions and Promises in His Majesties Proclamation touching the Causes and Reasons of Dissolving the two last Parliaments Dated April 8. 1681. Irregularities in Parliament shall NEVER make us out of love with Parliaments which we look upon as the best Method for healing the distempers of the Kingdom and the only means to preserve the Monarchy in that due Credit and Respect which it ought to have both at home and abroad And for this Cause we are resolved by the blessing of God to have frequent Parliaments And both in and out of Parliament to use OUR UTMOST ENDEAVOURS TO EXTIRPATE POPERY and to Redress all the Grievances of our good Subjects and in all things to Govern according to the
The Power and Jurisdiction of the Parliament for making of Laws in proceeding by Bill is so transcendent and absolute as it cannot be confined either for Causes or Persons within any bounds Of this Court it is truely said Si Antiquitatem spectes est vetustissima si Dignitatem est Honoratissima si Jurisdictionem est capacissima if you regard its Original it is most Antient if its Dignity it is most Honourable if its Jurisdiction it is most Capacious Sir Thomas Smith a great Statesman and in high esteem and place under Queen Elizabeth in his Treatise de Republica Anglorum L. 2. Ca. 2. gives this Character of this supream Court In Commitiis Parliamentariis posita est omnis Augustae absolutaeque potestatis vis veteres leges jubent esse irritas novas inducunt Presentibus juxta ac futuris modum constituunt Jura possessiones hominum privatorum commutant Spurios natalibus restituunt cultum divinum sanctionibus corroborant Pondera mensuras variant JUS IN REGNO SVCCEDENDI PRESCRIBVNT c. The most high and absolute power of the Realm of England consisteth in the Parliament for the Parliament abrogateth old Laws maketh new giveth order for things past and for things hereafter to be followed changeth the rights and possessions of private men Legitimateth Bastards Corroborates Religion with Civil Sanctions Alters weights and Measures PRESCRIBES THE RIGHT OF SVCCESSION TO THE CROWN defines doubtfull Rights where there is no Law already made Appointeth Subsidies Taxes and Impositions giveth most Free pardons restoreth in Blood and Name c. As for the power of Parliaments over both Statute and Common Law take it in the Accurate and Significant words of a Parliament viz. the Statute of 25 Hen. 8. Ca. 21 as follows Whereas this Realm Recognizing no superiour under God but the King hath been and is free from Subjection to any mans Laws but only to such as have been devised made and ordained within this Realm for the wealth thereof or to such other as the people of this Realm have taken at their free Liberty by their own consent to be used amongst them and have bound themselves by long use and Custome to the observance of the same not to the observance of the Laws of any Forreign Prince Potentate or Prelate but as to the accustomed and Ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with natural Equity and good Reason that all and every such Laws Humane made within this Realm or induced into this Realm by the said Sufferance Consents and Custom the King and the Lords Spiritual and Temporal and Commons Representing the whole State of the Realm in the most High Court of Parliament have full Power and Authority to dispouse with those and all other Humane Laws of the Realm and with every one of them as the quality of the Persons and matter shall require And also the said Laws and every of them to abrogate annull amplify or diminish as to the King Nobles and Commons of the Realm present in Parliament shall seem most meet and convenient for the Wealth of the Realm Thus far that notable Statute which in truth is only Declarative and in Affirmance of the Ancient Common Law of England The particular Business of Parliaments BY what hath been said you may perceive the work of an English Parliament is not as some would have it only to be Keys to unlock the peoples Purses That is but one part and perhaps one of the least parts too of their Office They are to propose new Laws that are wanting for general good and to press the Abrogation of Laws in being when the Execution of them is found prejudicial or dangerous to the publick They are to provide for Religion and the Safety and Honour of the Nation they have a power as you have heard from Sir Thomas Smith to order the Right to the Crown understand all this with the Kings consent and they have very frequently undertaken and actually Limited the same contrary to and different from the Common Line of Succession Nay by the Statute of the 13 Eliz. Cap 13. It is expresly Enacted That if any Person shall in any wise hold and affirm or maintain that the Queen with and by the Parliament of England is not able to make Laws and Statutes of sufficient force and validity to Limit and bind the Crown of this Realm and the Descent Limitation Inheritance and Government thereof or that this present Statute or any part thereof or any other Statute to be made by the Authority of the Parliament of England with the Royal Assent for Limiting the Crown is not are not or shall not or ought not to be for ever of good and sufficient Force and validity to bind limit restrain and Govern all Persons their Rights and Titles that in any wise may or might claim any Interest or Possibility in or to the Crown of England in Possession Remainder Inheritance Succession or otherwise howsoever and all other Persons whatsoever every Person so holding affirming or maintaining during the Life of the Queen shall be adjudged an high Traitor and suffer and forfeit as in Casts of High Treason is accustomed and every Person so holding affirming or maintaining after the dâ—câ—ase of our said Sovereign Lady shall forfeit all 〈◊〉 Good and Chattels Which Clause and last mentioned Penalty is to this Day in force and ought to be considered by any who shall now pretend that an Act of Parliament cannot dispose of the Succession As for the Right of making War and Peace the same is gramted to be part of the High Prerogatives of our Kings yet the wisest of our Monarchs have very rarely entred into any War without the 〈◊〉 〈◊〉 Parliaments for 1. Who could give them better Counsel in such a difficult Affair 2. The People would more readily expose their Persons in such a War the Justice and Expediency whereof was approved by their Representatives 3. The King from thence might more certainly promise himself supplies of Money to carry on the same But nothing is more properly the work of a Parliament than to redress Grievances To take notice of Monopolies and oppressions to Curb the Exorbitances of pernicious Favourites and ill Ministers of State To punish such mighty Delinquents as look upon themselves too big for the ordinary reach of Justice to inspect the Conduct of such as are intrusted with Administration of the Laws or disposal of the publick Treasure of the Nation All Crimes of these and the like kinds are publick Nusances common mischiefs and wound the whole Body politick in a vital part and can scarce at all be sound out or Redressed by reason of the power and Influence of the Offenders but in this great and awful Senate before whom the haughtiest Criminals tremble and it has been observed that they scarce ever Prosecuted any though never so
any Offence after the first Judgment shall be a sufficient Conviction to Bring the Officers or Person within the said penalty for the second Offence 6. And for the prevention of unjust Vexation by Reiterated Commitments for the same 2. Be it Enacted by the Authority aforesaid That no Person or Persons which shall be delivered or set at Large upon any Habeas Corpus shall at any time hereafter be again Imprisoned or Committed for the same Offence by any Person or Persons whatsoever other than by the Legal order and process of such Court wherein he or they shall be Bound by Recognizance to appear or other Court having Jurisdiction of the Cause 3. And if any other Person or Persons shall knowingly contrary to this Act Recommit or Imprison or knowingly procure or Cause to be Recommitted or Imprisoned for the same Offence or pretended Offence any Person or Persons delivered or set at Large as aforesaid or be knowingly aiding or Assisting therein then he or they shall forfeit to the Prisoner or Party Greived the sum of five hundred pounds any colourable pretence or variation in the Warrant or Warrants of Commitment notwithstandin to be Recovered as aforesaid 7. Provided alwayes and be it further Enacted That if any Person or Persons shall be Committed for High Treason or Felony Plainly and specially Expressed in the Warrant of Commitment upon his prayer or petition in open Court the first week of the Term or first day of the Sessions of Oyer and Terminer or General Gaol delivery to be Brought to his Tryal shall not be indicted sometime in the next Term Sessions of Oyer and Terminer or General Gaol delivery after such Commitment It shall and may be Lawful to and for the Judges of the Court of Kings Bench and Justices of Oyer and Terminer or General Gaol delivery and they are hereby Required upon motion to them made in open Court the last day of the Term Sessions or Gaol delivery either by the Prisoner or any one in his Behalf to set at Liberty the Prisoner upon Bail unless it appear to the Judges and Justices upon Oath made that the Witnesses for the King could not be produced the same Term Sessions or General Gaol delivery 2. And If any person or persons Committed as aforesaid upon his prayer or petition in open Court the first week of the Term or first day of the Sessions of Oyer and Terminer and General Gaol delivery to be Brought to his Tryal shall not be Indicted and Tryed the second Term Sessions of Oyer and Terminer or General Gaol delivery after his Commitment or upon his Tryal shall be Acquitted he shall be discharged from his Imprisonment 8. Provided alwaies That nothing in this Act shall Extend to discharge out of prison any person charged in debt or other Action or with process in any Civil Cause but that after he shall be discharged of his Imprisonment for such his Criminal Offence he shall be kept in Custody according to Law for such other suit 9. Provided alwaies and be it Enacted by the Authority aforesaid That if any person or persons subâ—ects of this Realm shall be Committed to any prison or in Custody of any Officer or Officers whatsoever for any Criminal or Supposed Criminal matter That the said person shall not be Removed from the said prison and custody into the custody of any other Officer or Officers 2. unless it be by Habeas Corpus or some other Legal writ or where the prisoner is delivered to the Constable or other Inferiour Officer to carry such prisoner to some common Gaol 3. or where any person is sent by â—rder of any Judge of Assize or Justice of the peace â—o any Common workhouse or house of Correction 4. or where the prisoner is Removed from one prion or place to another within the same County in order to his or her Tryal or discharge in due Course of Law 5. or in case of sudden fire or Infection â—r other Necessity 6. And if any person or persons â—hall after such Commitment aforesaid make out and â—ign or Countersign any Warrant or Warrants for â—uch Removal aforesaid contrary to this Act as well â—e that makes or signs or Countersigns such Warrant or Warrants as the Officer or Officers that obey or Execute the same shall suffer and Incur the pains and Forfeitures in this Act before-mentioned both for the first and second Offence Respectively to be Recovered in manner aforesaid by the party Grieved 10. Provided also and be it further Enacted by the Authority aforesaid That it shall and may be Lawful to and for any prisoner and prisoners as aforesaid to move and obtain his or their Habeas Corpus as well out of the High Court of Chancery or Court of Exchequer as out of the Courts of Kings Bench or common pleas or either of them 2. And if the said Lord Chancellour or Lord Keeper or any Judge or Judges Baron or Barons for the time being of the degree of the Coif of any of the Courts aforesaid in the Vacation time upon view of the Copy or Copies of the Warant or Warants of Commitment or Detainer or upon Oath made that such Copy or Copies were denied as aforesaid shall deny any writ of Habeas Corpus by this Act Required to be Granted being moved for as aforesaid they shall severally Forfeit to the prisoner or party Grieved the sum of five hundred pounds to be Recovered in manner aforesaid 11. And Be it Enacted and declared by the Authority aforesaid That an Habeas Corpus according to the true Intent and meaning of this Act may be directed and Run into any County Palatine the Cinquâ—… ports or other priviledged places within the Kingdom of Engl. Dominion of Wales or Town of Berwick upon Tweed and the Isles of Jersey or Guernsey any Law or Usage to the Contrary notwithstanding 12. And for preventing Illegal Imprisonments in prisons beyond seas 2. Be it further Enacted by the Authority aforesaid That no subject of this Realm that now is or hereafter shall be an Inhabitant or Resiant of this Kingdom of England Dominion of Wales or Town of Berwick upon Tweed shall or may be sent prisoner into Scotland Ireland Jersey Guernsey Tangier or into any parts Garrisons Islands or places beyond the seas which are or at any time hereafter shall be within or without the Dominions of His Majesty His heirs or successours 3. And that every such Imprisonment is hereby Enacted and adjudged to be Illegal 4. and that If any of the said subjects now is or hereafter shall be so Imprisoned every such person and persons so Imprisoned shall and may for every such Imprisonment maintain by vertue of this Act an Action or Actions of false Imprisonment in any of his Majesties Courts of Record against the person or persons by whom he or she shall be so Committed detained Imprisoned sent prisoner or Transported Contrary to the true meaning of this Act and against all or any
of the Council Bishop Temporal Lord Privy Councillor Judge or Justice whatsoever shall offend or do any thing contrary to the purport true intent and meaning of this Law Then he or they shall for such offence forfeit the sum of five hundred pounds of lawful Money of England unto any party grieved his Executors or Administrators who shall really prosecute for the same and first obtain Judgment thereupon to be Recovered in any Court of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 2. And if any person against whom any such Judgment or Recovery shall be had as aforesaid shall after such Judgment or Recovery offend again in the same then he or they for such offence shall forfeit the Sum of one thousand pounds of lawful Money of England unto any party grieved his Executors or Administrators who shall really prosecute for the same and first obtain Judgment thereupon to be Recovered in any Court of Record at Westminster by Action of Dept Bill Plaint or Information in which no Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 3. And if any person against whom any such second Judgment or Recovery shall be had as aforesaid shall after such Judgment or Recovery offend again in the same kind and shall be thereof duly convicted by Indictment Information or any other lawful way or means that such person so convicted shall be from thenceforth disabled and become by virtue of this Act Incapable ipso facto to Bear his and their said Office and Offices Respectively 4. And shall be likewise disabled to make any Gift Grant Conveyance or other Disposition of any of his Lands Tenements Hereditaments Goods or Chattels or to take any Benefit of any Gift Conveyance or Legacy to his own use 7. And every Person so offending shall likewise forfeit and lose to the party grieved by any thing done contrary to the true intent and meaning of this Law his treble Damages which he shall sustain and be put unto by means 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 Essoign Protection Wager of Law Aid-prayer Priviledge Injunction or Order of Restraint shall be in any wise prayed granted or allowed nor any more than one Imparlance 8. 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 other Court aforesaid now or at any time hereafter having or pretending to have the same or like Jurisdiction Power or Authority to Commit or Imprison as aforesaid 2. Or by the Command or Warrant of the King's Majesty His Heirs and Successors in their own Person or by the Command or Warrant of the Council-board or oâ— any of the Lords or others of His Majesties Privy Council 3. That in every such Case every person so Committed Restrained of his Liberty or suffering Imprisonment upon demand or motion made by his Council or other Imployed by him for that purpose unto the Judges of the Court of King's-Bench or Common-Pleas in open Court shall without delay upon any pretence whatsoever for the Ordinary Fees usually paid for the same 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 person Committed or Restrained shall be 4. 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 alwaies 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 Judges or Justices of the said Court from whence the same Writ shall Issue in open Court 5. And shall then likewise certifie the true Cause of such his Detainour or Imprisonment and thereupon the Court within three Court-daies after such Return made and delivered in open Court shall proceed to Examine and Determine whether the Cause of such Commitment appearing upon the said Return be Just and Legal or not and shall thereupon do what to Justice shall appertain either by Delivering Bailing or Remanding the Prisoner 6. And if any thing shall be otherwise wilfully done or omitted to be done by any Judge Justice Officer or other Person aforementioned contrary to the direction and true meaning hereof then such person so offending shall forfeit to the party grieved his treble Damages to be Recovered by such means and in such manner as is formerly in this Act limited and appointed for the like penalty to be Sued for and Recovered 9. Provided alwayes and be it Enacted That this Act and the several Clauses therein contained shall be taken and Expounded to Extend only to the Court of Star-Chamber 2. And to the said Courts holden before the President and Council in the Marches of Wales 3. And before the President and Council in the Northern parts 4. And also to the Court commonly called the Court of the Dutchy of Lancaster holden before the Chancellor and Council of that Court 5. And also in the Court of Exchequer of the County Palatine of Chester held before the Chamberlain and Council of that Court 6. 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 Council-board and to the Commitments Restraints and Imprisonments of any person or persons made commanded or awarded by the King's Majesty His Heirs or Successors in their own Person or by the Lords and others of the Privy-Council 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 unless the party supposed to have so Offended shall be sued or Impleaded for the same within two years at the most after such time wherein the said Offence shall be committed The Comment THE Court of Star-Chamber so called because held in a Chamber at Westminster the Roof of which
is garnisht with Golden Stars was not originally Erected but confirmed and establisht by the Stat. of the 3 H. 7. Ca. 1. For there had before been some such Jurisdiction as Cook observes 4. Instit fo 62. yet there is reason to believe That it grew up rather by Connivance and Usurpation than any due course of Law The Crimes it pretended to punish were the Exorbitant Offences of Great Men whom Inferiour Judges and Jurors though they should not would in respect of their Greatness be afraid to offend Bribery Extortion Maintenance Champerty Imbracery Forgery Perjury Libelling Challenges Duels c. Their proceedings were by English Bill and Process under the Great Seal and the punishments by them Inflicted were Fines Imprisonment Pillory Cutting off Ears c. But whatever pretences there were for the setting up this Court at first 't is certain it was made use of as a property of Arbitrary Power to Crush any whom the Ruling Ministers and Favourites had a mind to destroy and indeed there were Three things in the very nature of this Court which were destructive to the Original Constitution of our English Government and Liberties 1. They proceeded without Juries 2. They pretended to a Power to Examine men upon their Oaths touching Crimes by them supposed to be committed which is contrary to all Law and Reason For Nemo tenetur seipsum Accusare No man is bound to accuse himself 3. The Judges of this Court proceeded by no known Law or Rules but were left at Liberty to Act Arbitrarily and according to their own pleasures whereas the Law of Engl. hates to leave to any such an unlimited Power but as it marks out the several species of Crimes such or such an Act shall be Treason this Felony that petty Larceny c. So it awards certain and positive punishments proportionate to each of them Therefore this Court being found a Grievance to the Subject was by this Act dissolved and taken away And to the intent nothing of the like kind should by any other name be practised for the future it is Declared and Enacted That the King and His Privy Council shall not question or dispose of the Lands or Goods of any Subjects And if they do each Privy Counsellor or present forfeits 500l to the party grieved A Clause in the Act of 31. Car. 2. C. 1. Whereas by the Laws and Customs of this Realm the Inhabitants thereof cannot be compelled against their wills to receive Souldiers into their Houses and to sojourn them there Be it Declared and Enacted by the Authority aforesaid That no Officer Military or Civil nor any other person whatever shall from henceforth presume to Place Quarter or Billet any Souldier or Souldiers upon any Subject or Inhabitant of this Realm of any degree quality or profession whatever without his consent And that it shall and may be lawful for every such Subject and Inhabitant to refuse to Sojourn or Quarter any Souldier or Souldiers notwithstanding any Command Order Warrant or Billeting whatever HAVING thus recited several of the most material Statutes provided by the care and wisdom of our Ancestors and prudent Legislators for the Guarding and Securing our English Liberties I shall now for the Reader 's Information proceed to add certain other Laws of another nature And first give the Reader all the Statutes at this day in force against Protestant Dissenters upon the account of Religion And secondly an Abstract of all the Laws against Papists And in order to the first of these we begin with a Statute touching the Writ De Excommunicato Capiendo upon which many people have been prosecuted Which Act is as followeth Anno Quinto Reginae Elizabethae Ca. 23. An Act for the due Execution of the Writ De Excommunicato capiendo FOrasmuch as divers persons offending in many great Crimes and Offences appertaining meerly to the Jurisdiction and Determination of the Ecclesiastical Courts and Judges of this Realm are many times unpunished for lack and want of the good and due Execution of the Writ de Excommunicato Capiendo directed to the Sheriff of any County for the taking and apprehending of any such Offenders 2. The great abuse whereof as it should seem hath grown for that the said Writ is not Returnable in any Court that might have the Judgment of the well Executing and serving of the said Writ according to the Contents thereof 3. But hitherto have been left only to the discretion of the Sheriffs and their Deputies by whose Negligences and Defaults for the most part the said Writ is not Executed upon the Offenders as it ought to be 4. By reason whereof such Offenders be greatly encouraged to continue their sinful and criminous Life much to the displeasure of Almighty God and to the great contempt of the Ecclesiastical Laws of this Realm 2. Wherefore for the redress thereof be it enacted by the Queens Most Excellent Majesty with the assent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same That from and after the first day of May next coming every Writ of Excommunicato Capiendo that shall be granted and Awarded out of the high Court of Chancery against any person or persons within the Realm of England shall be made in the time of the Term 2. And Returnable before the Queen's Highness Her Heirs and Successors in the Court commonly called the King's Bench in the Term next after the Teste of the same Writ 3. and the same writ shall be made to contain at the least twenty days between the Teste and the Return thereof 4. And after the same writ shall be so made and sealed that then the said Writ shall be forthwith brought into the said Court of King's Bench and there in the presence of the Justices shall be opened and delivered of Record to the Sheriffs or other officer to whom the serving and Execution thereof shall appertain or to his or their Deputy or Deputies 5. And if afterward it shall or may appear to the Justices of the same Court for the time being that the same writ so delivered of Record be not duty returned before them at the day of the return thereof or that any other Default or Negligence hath been used or bad in the not well serving and Executing of the said Writ that then the Justices of the said Court shall and may by Authority of this Act Assess such Amerciament upon the said Sheriff or other Officer in whom such Default shall appear as to the discretion of the said Justices shall be thought meet and convenient which Amerciament so Assessed shall be Estreated into the Court of Exchequer as other Amerciaments have been used 3. And he it further Enacted by the Authority aforesaid That the Sheriff or other Officer to whom such writ of Excommunicato Capiendo or other Process by virtue of this Act shall be directed shall not in any wise be compelled to bring the
Body of such person or persons as shall be named in the said writ or Process into the said Court of the King 's Beneh at the day of the Return thereof 2. But shall only Return the same Writ and Process thither with Declaration briefly how and in what manner he hath served and Executed the same to the intent that thereupon the said Justices may then further therein proceed according to the Tenour and Effect of this present Act. 4. And if the said Sheriff or other Officer to whom the Execution of the said writ shall so appertain do or shall Return that the party or parties named in the said Writ cannot be found within his Bailiwick that then the said Justices of the King's Bench for the time being upon every such Return shall Award one Writ of Capias against the said Persons or Persons named in the said Writ of Excommunicato Capiendo 2. Returnable in the same Court in the Term-time two moneths at least next after the Teste thereof 3. With a Proclamation to be contained within the said Writ of Capias that the Sheriff or other Officers to whom the said Writ shall be directed in the full County-Court or else at the General-Assizes and Goal-delivery to be holden before within the said County or at a Quarter-Sessions to be holden before the Justices of the Peace within the said County shall make open Proclamation ten daies at the least before the Return that the party or parties named in the said Writ shall within six days next after such Proclamation yield his or their Body or Bodies to the Prison of the said Sheriff or other such Officer there to remain as a Prisoner according to the Tenour and Effect of the first Writ of Excommunicato Capiendo upon pain or forfeiture of ten pounds 4. And thereupon after such Proclamation had and the said six days past and expired then the said Sheriff or other Officer to whom such Writ of Capias shall be directed shall make Return of the same Writ of Capias into the said Court of the King's Bench of all that he hath done in the Execution thereof and whether the party named in the said Writ have yielded his Body to Prison or not 5. And if upon the Return of the said Sheriff it shall appear that the party or parties named in the same VVrit of Capias or any of them have not yielded their Bodies to the Goal and Prison of the said Sheriff or other Officer according to the Effect of the same Proclamation that then every such person that so shall make default shall for every such default forfeit to the Queens Highness Her Heirs and Successors ten pounds 2. VVhich shall likewise be Estreated by the said Justices into the said Court of Exchequer in such manner and form as fines and Amerciaments there taxed and assessed are used to be 6. And thereupon the said Justices of the King's-Bench shall also award forth another Writ of Capias against the said person or persons that so shall be Returned to have made default with such like Proclamation as was contained in the first Capias and a pain of twenty pounds to be mentioned in the said second Writ and Proclamation 2 And the Sheriff or other Officer to whom the said second Writ of Capias shall be so directed shall serve and Execute the said Writ in such like manner and form as before is Expressed for the serving and Executing of the said first Writ of Capias 3. And if the Sheriff or other Officer shall return upon the said second Capias that he hath made the Proclamation according to the tenout and Effect of the same Writ and that the party hath not yielded his Body to Prison according to the Tenour of the said Proclamation that then the said party that so she ll make default shall for such his contempt and default forseit to the Queens Highness Her Heirs and Successors the Sum of twenty pounds 4. which said Sum of twenty pounds the said Justices of the King's-Bench for the time being shall likewise cause to be Estreated into the said Court of Exchequer in manner and form aforesaid 7. And then the said Justices shall likewise Award forth another VVrit of Capias against the said party with such Proclamation and pain of forfeiture as was contained in the said second writ of Capias 2. and the Sheriff or other Officer to whom the said Third writ of Capias shall be so directed shall serve and Execute the said writ of Capias in such like mannor and form as before in this Act is expressed and declared for the serving and Executing of the said first and second writs of Capias 3. And if the Sheriff or other Officer to whom the Execution of the said third writ shall appertain do make Return of the said third writ of Capias that the Party upon such Proclamation hath not yielded his Body to Prison according to the Tenour thereof that then every such party for every such contempt and default shall likewise forfeit to the Queen's Majesty Her Heirs and Successors other twenty pounds 4. which Sum of twenty pound shall likewise be Estreated into the said Court of the Exchequer in manner and form aforesaid 5. And thereupon the said Justices of the King's Bench shall likewise Award forth one writ of Capias against the said party with like Proclamation and like pain of forfeiture of twenty pound 6. And that also the said Justices shall have Authority by this Act infinitely to Award such Process of Capias with such like Proclamation and pain of forfâ—iture of twenty pound as is before Limited against the said party that so shall make default in yielding of his Bâ—â—y to the Prison of the Sheriff until such time as by return of some of the said writs before the said Justices it shall and may appear that the said party hath yielded himself to the Custody of the said Sheriff or other Officer according to the Tenour of the said Proclamation 7. And that the party upon every default and contempt by him made against the Proclamation of any of the said writs so infinitely to be Awarded against him shall incur like pain and forfeiture of twenty pound which shall likewise be Estreated in manner and form aforesaid 8. And be it further enacted by the Authority aforesaid That when any person or persons shall yield his or their Body or Bodies to the hands of the Sheriff or other Officer upon any of the said VVrits of Capias that then the same party or parties that shall so yield themselves shall remain in the Prison and Custody of the said Sheriff or other Officer without Bail Basion or Mainprise in such like manner and form to all intents and purposes as he or they should or ought to have done if he or they had been apprehended and taken upon the said VVrit of Excommunicato capiendo 9. And be it further Enacted by the Authority aforesaid that if any
follows I A. B. do declare that it is not lawful upon any pretence whatsoever to take Arms against the King and that I do abhor that Traiterous position of taking Arms by his Authority against his Person or against those that are commissioned by him and that I will conform to the Liturgy of the Church of England as it is now by Law established And I do declare That I do hold there lies no Obligation upon me nor any other person from the Oath commonly called the solemn League and Covenant to endeavour any change or alteration of Government either in Church or State and that the same was in it self an unlawful Oath and imposed upon the Subjects of this Realm against the known Laws and Liberties of this Kingdom But note that this last branch of this Declaration by a subsequent clause of the same Act was to continue but till the 25th day of March 1682. so that now the same is not to be required And thus much for this Five-Mile Act. We now proceed to the other Statute against Protestant Dissenters viz. Anno Vicessimo Secundo Caroli Secundi Regis Cap. 1. An Act to prevent and suppress Seditions Conventicles For providing further and more speedy Remedies against the growing and dangerous practices of Seditious Sectaries and other disloyal persons who under pretence of Tender Consciences have or may at their Meetings contrive Insurrections as late Experience hath shewn 2. Be it enacted by the King 's most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament Assembled and by Authority of the same That if any person of the Age of sixteen years or upwards being a Subject of this Realm at any time after the tenth day of May next shall be present at any Assembly Conventicle or Meeting under colour or pretence of any Exercise of Religion in other manner than according to the Liturgy and practice of the Church of England in any place within the Kingdom of England Dominion of Wales or Town of Berwick upon Tweed at which Conventicle Meeting or Assembly there shall be five persons or more Assembled together over and besides those of the same houshold if it be in a house where there is a Family inhabiting or if it be in a house field or place where there is no Family inhabiting then where any five persons or more are so Assembled as aforesaid it shall and may be lawful to and for any one or more Justices of the Peace of the County Limit Division Corporation or Liberty wherein the Offence aforesaid shall be Committed or for the chief Magistrate of the place where the Offence aforesaid shall be committed and he and they are hereby Required and Enjoyned upon Proof to him or them Respectively made of such Offence either by Confession of the Party or Oath of two Witnesses 3. Which Oath the said Justice and Justices of the Peace and Chief Magistrate respectively are hereby Required and Impowered to Administer or by Notorious Evidence and Circumstance of the fact to make a Record of every such Offence under his or their Hands and Seals respectively which Record so made as aforesaid shall to all intents and purposes be in Law taken and adjudged to be a full and perfect Conviction of every such Offender for such offence and thereupon the said Justice Justices and Chief Magistrate respectively shall Impose on every such Offender so convict as aforesaid a Fine of five shillings for such first Offence which Record and Conviction shall be certified by the said Justice Justices or Chief Magistrate at the next Quarter-Sessions of the Peace for the County or place where the Offence was committed 2. And be it further Enacted by the Authority aforesaid That if such Offender so convicted as aforesaid shall at any time again commit the like Offence or Offences contrary to this Act and be thereof in manner aforesaid convicted then such Offender so convict of such like Offence or Offences shall for every such Offence incur the penalty of ten shillings 2. Which Fine and Fines for the first and every other Offence shall be Levied by Distress and Sale of the Offenders Goods and Chattels or in case of the poverty of such Offender upon the Goods and Chattels of any other person or persons who shall be then convicted in manner aforesaid of the like Offence at the same Conventicle at the discretion of the said Justice Justices or Chief Magistrate respectively so as the Sum to be Levied on any one person in case of the poverty of other Offenders amount not in the whole to above the Sum of ten pounds upon occasion of any one Meeting as aforesaid 3. And every Constable Headborough Tythingman Church-Wardens and Over-seers of the Poor respectively are hereby Authorized and Required to Levy the same accordingly having first received a Warrant under the Hands and Seals of the said Justice Justices or Chief Magistrate respectively so to do 4 The said Monies so to be Levied to be forthwith delivered to the same Justice Justices or Chief Magistrate and by him or them to be distributed the one third part thereof to the use of the King's Majesty His Heirs and Successors to be paid to the High Sheriff of the County for the time being in manner following that is to say the Justice or Justices of Peace shall pay the same into the Court of the respective Quarter-Sessions which said Court shall deliver the same to the Sheriff and make a Memorial on Record of the payment and delivery thereof which said Memorial shall be a sufficient and final discharge to the said Justice and Justices and a charge to the Sheriff which said discharge and charge shall be certified into the Exchequer together and not one without the other And no Justice shall or may be questioned or accountable for the same in the Exchequer or elsewhere than in Quarter-Sessions another third part thereof to and for the use of the Poor of the Parish where such Offence shall be committed and the other third part thereof to the Informer and Informers and to such Person and persons as the said Justice Justices or chief Magistrate respectively shall appoint having regard to their diligence and Industry in the discovery dispersing and punishing of the said Conventicles 3. And be it further enacted by the Authority aforesaid That every person who shall take upon him to preach or teach in any such Meeting Assembly or Conventicle and shall thereof be convicted as aforesaid shall forfeit for every such first Offence the sum of Twenty pound to be Levied in manner aforesaid upon his Goods and Chattles 2. And if the said Preacher or Teacher so convicted be a stranger and his Name and Habitation not known and is fled and cannot be found or in the Judgment of the Justice Justices or chief Magistrate before whom he shall be convicted shall be thought unable to pay the same the said
what they Swear or if we do not find as the Judge directs we may come into trouble the Judge may Fine us c. I Answer this is a vain fear No Judge dare offer any such thing you are the proper Judges of the matters before you and your Souls are at stake you ought to Act freely and are not bound though the Court demand it to give the Reasons why you bring it in thus or thus for you of the Grand-Jury are sworn to the Contrary viz. To keep secret your fellows Counsel and your own and you of the Petty Jury are no way obliged to declare your motives it may not be convenient T is a notable Case before the Chief Justice Anderson in Q. Eliz. daves A Man was Arraigned for murder the Evidence was so strong that 11. of the Jury were presently for finding him Guilty the 12th man refused and kept them so long that they were ready to starve and at last made them comply with him and bring in the Prisoner not Guilty The Judge who had several times admonisht this Jury-man to join with his Fellows being surprized sent for him discoursed him privately to whom upon promise of Indempnity he at last own'd that he himself was the man that did the Murder and the Prisoner was Innocent and that he was resolv'd not to adde Perjury and a second Murder to the first But to satisfie you that a Jury is no way punishable for going according to their Conscience though against seeming Evidence and the Reasons why they are and ought not to be question'd for the same I shall here Recite an Adjudged Case that of Bushel in the two and twentieth year of His Majesty Reported by the Learned Sir John Vaughan whose Book is Licensed by the present Lord Chancellor the Lord Chief Justice North and all the Judges then in England the said Case begins fol. 135. and continues 150. The whole well worth Reading but I shall only Select Certain Passages The Case was this BUshel and others of a Jury having at a Sessions not found Pen and Mead Two Quakers Guilty of a Trespass Contempt Vnlawful Assembly and Tumult whereof they had been Indicted were fined forty pound a man and Committed till they should pay it Bushel brings his Habeas Corpus and upon the Return it appeared he was Committed For that contrary to Law and against full and Clear Evidence openly given in Court and against the Directions of the Court in matter of Law they had Acquitted the said W. P. and W. M. to the great Obstruction of Justice c. Which upon solemn Argument was by the Judges Resolved to be an Insufficient Cause of fining and committing them and they were discharged and afterwards brought Actions for their Dammage The Reasons of which Judgment are reported by Judge Vaughan and amongst them he Useth these that follow which I shall give you in his own words Fol. 140. One fault in the Return is That the Jurors are not said to have Acquitted the persons Indicted against full and manifest Evidence Corruptly and Knowing the said Evidence to be full and manifest against the Persons Indicted For how manifest soever the Evidence was if it were not manifest to them and that they Believed it such it was not a Finable fault nor Deserving Imprisonment Vpon which Difference the Law of punishing Jurors for false Verdicts principally Depends And Fol. 141. I would know whether any thing be more Common than for two men Students Barristers or Judges to deduce Contrary and opposite Conclusions out of the same Case in Law And is there any Difference that two men should Infer distinct Conclusions from the same Testimony is any thing more known than that the same Author and place in that Author is forceably urg'd to maintain contrary Conclusions and the Decision hard which is in the Right is any thing more frequent in the controversies of Religion than to press the same Texts for Opposite Tenets How then comes it to pass that two persons may not apprehend with Reason and Honesty what a Witness or many say to prove in the Vnderstanding of one plainly one thing but in the Apprehension of the other clearly the contrary thing must therefore one of these Merit Fine and Imprisonment because he doth that which he cannot otherwise do preserving his Oath and Integrity And this is often the Case of the Judge and the Jury And Fol. 142. I conclude therefore That this Return charging the Prisoners to have Acquitted P. and M. against full and manifest Evidence first and next without saying that they did know and Believe that Evidence to be full and Manifest against the Indicted persons is no Cause of Fine and Imprisonment In the Margent of that Fol. 142. it is thus Noted Of this Mind were ten Judges of Eleven the Chief Baron Turner gave no Opinion because not at the Argument And in the same fol. 142. he saith The Verdict of a Jury and Evidence of a Witness are very Different things in the Truth and Falshood of them a Witness swears but to what he hath heard or seen generally or more largely to what hath fallen under his Senses But a Jury-man swears to what he can Inferr and conclude from the Testimony of such Witnesses by the Act and force of his Understanding to be the Fact Inquired after which differs nothing in Reason though much in the Punishment from what a Judge out of Various Cases consider'd by him Infers to be the Law in the question before him If the meaning of these Words finding against the Direction of the Court in matter of Law be That if the Judge having heard the Evidence given in Court for he knows no other shall tell the Jury upon this Evidence the Law is for the Plaintiff or for the Defendant and you are under the pain of Fine and Imprisonment to find accordingly and the Jury ought of duty so to do then every man sees that the Jury is but a troublesome delay great Charge and no use in determining Right and Wrong and therefore the Tryals by them may be better Abolished than continued which were a strange new found Conclusion after a Tryal so Celebrated for many hundred Years It is true if the Jury were to have no other Evidence for the Fact but what is Deposed in Court the Judge might know their Evidence and the Fact from it equally as they and so direct what the Law were in the Case though even then the Judge and Jury might honestly differ in the Result from the Evidence as well as two Judges may which often happens but the Evidence which the Jury have of the Fact is much otherwise than that For 1. Being Returned of the Vicinage where the Cause of Action ariseth the Law supposeth them thence to have sufficient Knowledge to Try the matter in Issue and so they must though no Evidence were given on either side in Court but to this Evidence the Judge is a stranger 2. They may have Evidence from their own Personal Knowledge by which they may be assured and sometimes are that what is deposed in Court is absolutely false but to this the Judge is a stranger and he knows no more of the Fact than he hath Learned in Court and perhaps by false Depositions and consequently knows nothing 3. The Jury may know the Witnesses to be Stigmatized and Infamous which may be unknown to the parties and consequently to the Court. Fol. 148. To what end is the Jury to be Returned out of the Vicinage where the Cause of Action ariseth to what end must Hundredors be of the Jury whom the Law supposeth to have nearer knowledge of the Fact than those of the Vicinage in General to what end are they Challenged so scrupulously to the Array and Poll to what end must they have such a certain Free-hold and be Probi Legales homines and not of Affinity with the party concern'd to what end must they have in many Cases the View for Exacter Information chiefly to what end must they undergo the Punishment of the Villanous Judgment if after all this they Implicitly must give a Verdict by the Dictates and Authority of another Man under Pains of Fines and Imprisonment when Sworn to do it according to the best of their own Knowledge A man cannot see by anothers Eye nor hear by anothers Ear no more can a man conclude or Infer the thing to be Resolved by anothers Vnderstanding or Reasoning and though the Verdict be right the Jury give yet they being not assured that it is so from their own Vnderstanding are Forsworn at least in foro Conscientiae Fol. 149. And it is Absurd to Fine a Jury for finding against their Evidence when the Judge knows but part of it for the better and greater part of the Evidence may be wholly unknown to him and this may happen in most Cases and often doth Thus far Judge Vaughan whose words I have faithfully Recited and with it shall conclude this Subject Recommending those that would be further satisfied in the Law touching the Power and Duty of Juries to those two Excellent Learned Treatises lately published the one Intituled A Guide to English Juries c. to be Sold by Mr. Cockeril at the Three Legs over against the Stocks-Market the other The Security of English-mens Lives or the Trust Power and Duty of the Grand Juries of England Printed for Benj. Alsop in the Poultrey both which are extreamly well worthy of every English mans Perusal that is liable to be call'd to that Office And now I shall take Leave of the Reader who I hope will join with me and all English Protestants in this Prayer THat Almighty God would preserve our Religion put a stop to the Growth of Popery Confound all their Plots Protect our present Gracious King Defend us both from a Forreign Yoak and Domestick Slavery but continue to us the Enjoyment of our good old Laws Liberties and Priviledges and bring all those to exemplary Justice that have or shall dare attempt to Subvert Diminish or Vndermine them Amen FINIS 1 See Book of Oaths p. 1. 3. 2 Bakers Cron. sol 741. 3 Book of Oaths p. 216. ☞