and thing if they were never convicted of and tryed by a Jury of good men and true for the first and second offence according to Law and the usage of the Realm It is enacted by Magna Charta confirmed by 32 Acts of Parliament that no Free-man shall be taken or imprisoned 9 Hen. 3. cap 29. Cooks Proeme to the 2 part Instit or dis-seized of his Free-hold or Liberties or free Customes or be outlawed or exiled or in any wise destroyed nor we will not pass upon him nor condemn him but by lawful judgement of his equals or by the Law of the Land we shall sell to no man we shall deny or defer to no man either Justice or Right Magna Charta cap. 29. First No man is to be taken or imprisoned but by the Law of the Land that is by the Common Law Statute Law or custome of England Secondly No man shall be disseized that is put out of seizen or dispossessed of his Free-hold that is Lands Livelihood or of his Liberties or free Customes that is of such Franchises and Freedoms and free Customs as belong to him by his free Birth-right unless it be by the lawful judgement that is verdict of his equals that is men of his own condition or by the Law of the Land that is to speak once for all by due course and process of the Law Thirdly No man shall be outlawed made an Ex lex put out out of the Law that is deprived of the benefit of the Law unless he be outlawed according to the Law of the Land Fourthly No man shall be exiled or banished out of his Countrey unless he be exiled and banished by the verdict of his equals or according to the Law of the Land Fifthly No man shall be in any sort destroyed except it be by the verpict of his equals or according to the Law of the Land Sixthly No man shall be condemned at the Kings Suit either before the King in his Bench where the Pleas are Coram Rege nor before any other Commissioner or Judge whatsoever but by the judgement of his Peers that is equals or according to the Law of the Land Seventhly We shall sell to no man Justice and Right Eighthly We shall deny to no man Justice or Right Ninthly We shall defer to no man Justice or Right see Cook upon the 29. chap of Magna Charta 2. pt Instit fol. 45.46 47 48 49 50. No man shall be in any sort destroyed unless it be by the verdict of his equals or according to the Law of the Land And no man shall be condemned at the Kings suit before the King in his Bench nor before any other Commissioner or Judge whatsoever but by the judgement of his Peers that is equals or according to the Law of the Land saith Cook upon Magna Charta Nisi per Legem terra but by the Law of the Land for the true sense and exposition of these words see the Statute of 37. Edw. 3. where the words 37. Edw. 3. cap. 18. by the Law of the Land are rendered without due process of Law for there it is said though it be contained in the great Charter That no Man be taken imprisoned or put out of his Free-hold without process of Law that is by Indictment and Presentment of good and lawful men 25. Edw. 3. cap. 4. where such deeds be done in due manner or by Writ Original of the common Law see Cook upon Magna Charta fol. 50. Item Whereas it is contained in the great Charter of the Franchises of England that none shall be imprisoned or put out of his Free-hold nor Franchise nor free Customs but by the Law of the Land it is accorded ascented and established that from henceforth none shall be taken by petition or suggestion made to our Sovereign Lord the King or to his Council unless it be by Indictment or presentment of his good and lawful Neighbours where such deeds be done in due manner or by process made by Writ Original at the common Law nor that none be put out of his Franchises nor of his Free-holds unless he be duly brought in to answer and fore-judged of the same by way of Law And if any thing be done against the same it shall be redressed and holden for none see the Statute 25. Edw. 3. cap 4. No man shall be taken and imprisoned without being brought in to answer by due process of Law for it is enacted by a Statute made in the eight and twentieth year of the reign of King Edward the third that no man of what state and condition soever he be shall be put out of his Lands or Tenements nor taken nor imprisoned nor disinherited without being brought in to answer by due process of Law 28. Edw. 3. cap. 3. see the Statute it self 28. Edw. 3. cap. 3 And no man is to be put to answer without presentment before Justices or matter of Record by due process of Law for by a Statute made in the two and fortieth Year of the Reign of King Edward the third 42 Ed. 3. c. 3 it is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices of Record by due process or by Writ Original according to the old Law of the Land and if any thing be done from henceforth to the contrary it shall be made void in Law and holden for errour as by the Statue appeareth 42 Edw. 3. c. 3. Is it not contrary to Magna Charta and the Law of the Land to take men and imprison them and pass judgement upon them in any case without due and legal proceedings And if they have due and legal proceedings are they not to be indicted or presented by good and lawful people of the same neighbourhood where the fact or offence is committed in due manner as aforesaid or else by processe made by Writ Original at the common Law and if that be denyed and men be condemned before they be imprisoned and without verdict of their equals and without being duly brought in to answer and tryed by the course of the Law are they not destroyed contrary to Law or ought not such things to be redressed and holden for none as are against Magna Charta and the Law of the Land as aforesaid And if any man be imprisoned and be not duly brought in to answer according to Law as aforesaid ought not the proceedings against him to be void in Law and holden for errour If men cannot legally according to Law and the usage of the Realm be tryed as offenders for the third offence for one and the same cause matter and thing if they were never legally convicted of and tryed for a first and second offence according to the great Charters of the Liberties of England or the former Statutes and Laws of the Land as aforesaid may not that offence whereof they are first convicted and tryed by due
THE Liberty of the Subject BY Magna Charta OR Several weighty things to be considered of by the Jurors and Judges seeing the Law of ENGLAND is said to be a Law of Mercy and doth take care that Jurors be of the next Neighbourhood most sufficient Men and Persons that are least suspicious And that Judges and Ministers of Justice are to do even Law and Execution of Right to all Men rich and poor without respect of persons And That MAGNA CHARTA and the Charter of the Forrest are to be allowed in all their points and that if any Judgement be given contrary to the Points of the Charters by any of the Kings Ministers of Justice it is to be undone and holden for naught 25. Ed. 1. c. 1.2 Likewise No man is to be put to answer without presentment before Justices or matter of Record by due process or by 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 42 Ed. 3. cap. 3. Written in the 6th Month 1664. THE Liberty of the Subject BY Magna Charta OR Several serious and weighty confiderations as hereafter followeth 1. Because the Innocent shall not be worn and wasted by long Imprisonment 2. That Prisoners for criminal causes when they are brought to their Tryal be humanely dealt withal 3. The Judge ought to exhort him to answer without fear and that Justice shall be duly administred unto him c. FOrasmuch as the Law of England is said to be a Law of Mercy and that three things are favoured in Law 1. Life 2dly Liberty And 3dly Dowre And That there are two things which the Law delights in First To have things openly and solemnly done Secondly Certainty Cook 2. part Institut fol. 315.316 for Truth is said to be the Mother of Justice and Certainty the Mother of quietness and repose Cook 1. part Institut fol. 224.39 What care therefore ought the Jurors and Judges to have in executing the late Act made for preventing and suppressing seditious Conventicles that they may not do things uncertainly nor unjustly and without mercy nor that they may not seek to suppress the Truth and People of God instead of suppressing Sedition and preventing Insurrection nor that they may not punish the Innocent instead of the Guilty Ought they not in order to the Executing of the said Act to take these things hereafter following into due and serious consideration First That religious and godly Meetings which are only for the Service and Worship of God are neither accounted unlawful Assemblies nor prohibited or punishable by the said Act. But seditious and ungodly Meetings are prohibited and punishable thereby For it is sedition and contriving Insurrection at Meetings under colour of Religious Worship that makes Meetings to be unlawful Assemblies and seditious Conventicles punishable by the said Act and not such godly religious Meetings as are far off and free from Sedition in word or action and also from designing or contriving any Insurrection Secondly That such Meetings upon the account of Religion and Worship of God as are not contrary to the manner allowed by the Liturgy or practice of the Church of England are not prohibited nor punishable by the said Act but ought to be freed from the force of the penalties in that case provided Thirdly That for people to assemble and meet together without any intent either to sowe Sedition or to contrive Insurrection but onely to wait upon the Lord in the way of his Worship and to preach and pray and to perform duty and service to God at any time or in any place according to the gift and requirings or teachings of the Word and Spirit of God is not contrary to what is allowed by the Liturgy of the Church because the Liturgy alloweth the same Fourthly That for persons and people to assemble and meet together under colour of religious Worship with an intent to contrive Insurrection is to meet in other manner then is allowed by the Liturgy or practise of the Church because neither the Liturgy nor practise of the Church alloweth of any such things Fifthly Otherwise ought not the Jurors and Judges to consider whether according to Law and in order to a certain legal determination of the matter in a legal manner it ought not first to be determined by the Spiritual Judges viz. What Meetings upon the account of Religion and Worship of God are allowed by the Liturgy of the Church or contrary to the manner allowed by the Liturgy or practise of the Church before the Jurors or temporal Judges ought to finde a verdict and passe Judgement accordingly to punish the persons and people for such matters and causes seeing it is a spiritual matter and cause being about the Service and Worship of God Sixthly Ought they not to consider whether it belongs unto them to judge and condemn persons for spiritual causes and matters of Conscience in things appertaining to the Worship of God or whether they ought not to disclaim it as not belonging to their jurisdiction because they do not sit and act as Judges in a spiritual capacity but in a temporal for is not the body politick divided into two parts the one part called by the name of spirituality and the other called the temporality and are not their powers distinct the one to hear and determine spiritual matters and causes and the other to hear and determine temporal causes and matters and hath not the body spiritual power when any cause of the Law Divine happens to come in question or of spiritual learning to declare and determine all such doubts and to administer all such offices and duties as to their room spiritual doth appertain and are not the Laws Temporal for tryal of property of Lands and Goods and for the conservation of the people of this Realm in unity and peace without ravine or spoil by the Temporal Judges and the other by the Spiritual Judges 24. H. 8. c. 12. or as by the Statute appeareth see the Statute 24. Hen. 8. cap. 12. Seventhly Ought they not to consider that people are not to be punished by the late Act for the Service and Worship of God but for meeting together to sowe Sedition or to contrive Insurrection under pretence of Religious Worship and must it not be made apparent and evident that they do so viz. sowe Sedition or contrive Insurrection before they can or ought truly according to Law be found guilty or condemned by the late Act so as to suffer the penalties thereof Eighthly ought not they to consider 1. Against what persons and practises the remedies by the said Act are provided 2. Who they are that come within the reason of the Act. 3. For what end the penalties are to be executed And 4. What Meetings are accounted and declared by the said Act to be unlawful Assemblies and punishable thereby that those may not be punished
process of Law according to the former Statutes of the old Law of the Land be in Law taken and deemed to be the first offence and the other be void in Law seeing the Law takes care and provides that all men shall have even Law and execution of right without respect of persons and if they have not where is the fault in the Law or in the executors thereof who are commanded and sworn to do even Law and Execution of Right to all men rich and poor without respect of persons 20. Ed. 3. c. 1 or shewing favour to one more then unto another they are not to with-hold Law and Right from men for differences in judgement in matters of Religion but they are to let them have even Law and right as well as others see Magna Charta cap. 29. And see the Statute 20 Edw. 3. ch 1. and 25. Edw. 3.4 and 5. Edw. 3.9 and 28. Edw. 3. cap. 3. and 42. Edw. 3. cap. 3. The Law takes care and provides that Jurors be of the next neighbourhood most sufficient men and persons that are lest suspicious as by the Statute appears 28. Edward 1. cap. 9. And no man is prohibited but allowed by the Law of the Land to have Counsel of Pleaders of learned men in the Law for his fee or of his next friends so that a man may plead for his friend see the Statute 28 Edward 1. cap. 11. The Laws and Customs of England shall be pleaded shewed and defended answered debated and judged in the English tongue in all Courts within this Realme and are onely to be entred and enrolled in Latine see the Statute for that 36. Edw. 3. cap. 15. Is it not the duty of a Judge to discern what is just by the rule of the Law and so to make the Law his rule his line his measure his weight his yard and ballance which is called right it self and common Law because it judgeth common right by a right line which is the judge of it self and its oblique saith Cook in his second part Institut 1. Are not the Judges to do justice and right according to the rule of the Law and Custome of England Cook 2. pt Instit fol. 56. 2. They are not to sell deny or delay Justice and Right neither the end which is justice nor the means whereby the end may be obtained which is the Law saith Cook in his 2. part Instit fol. 56. 3. The Court ought to be of councel with the Prisoner to see that nothing be urged against him contrary to Law and Right saith Cook 3. part Instit fol 29. 4. The Judge ought to exhort the Prisoner to answer without fear and that Justice shall be duly administred unto him saith Cook in his 2. part Institutes fol. 316. 5. The Judges of the Court who ever are to be of councel with the Prisoner to give him Law and Justice ex ossicio ought to enquire whether he be the same person and of all other pleas which he might have pleaded c. saith Cook in his 2. part Institut fol. 178. Nay saith he any learned man that is in the Court may inform the Court for the benefit of the Prisoner of any thing that may make the proceedings erroneous Cook 3 part Instit fol. 29. Also saith he It is lawful for any man that is in the Court to inform the Court lest the Court should erre and the Prisoner be unjustly proceeded with see Cook 3. part Instit fol. 137. 6. The Judges and Ministers of Justice are to allow the great Charters of the Liberties of England in all their points for by a Statute made for the confirmation of the Charters 25 Edw. 1. cap 1. It is enacted that all Majors Sheriffs Justices 25 Ed 1. c. 1. and other Ministers which have the Laws of the Land to guide them shall allow the said Charters pleaded before them in judgment in all points see the Statute it self 25. Edw. 1. cap. 1. 7. The Judges and Ministers of Justice are not to give Judgement against the great Charters for whatsoever judgement is given against the Statute of Magna Charta or of the Charter of the Forrest is made void by the Statute 25 Edw. 1. cap. 2. because saith Cook the judgement is given against the Law and the Statute it self saith If any Judgement be given from henceforth contrary to the points of the Charters aforesaid Cook 2 part Instit fol. 226 227 by the Justices or by any other our Ministers that hold Plea before them against the points of the Charters it shall be undone and holden for naught Statute 25. Edw. 1. cap. 2. And by a Statute made the 42d year of the Reign of King Edward the third it is assented and accorded that the great Charter and the Charter of the Forrest be holden and kept in all points 42 Ed. 3. cap. 1. and if any Statute be made to the contrary that shall be holden for none see the Statute it self 42 Edward 3. cap. 1. The great Charters are to be read four times a Year in the Counties and twice a Year in the Cathedrals that the people may know they are confirmed and are to be kept in all points 25 Edw. 1. c. 1 2 3. see the Statute 25 Edw. 1. cap. 1.2 3. And it is enacted by the Statute of the 25 Edw. 1. cap. 4. that all Archbishops and Bishops shall pronounce the sentence of excommunication against all those that by word deed or Council do contrary to the aforesaid Charters or that in any point do break or undo them and that the said curses be twice a year denounced and published see the Statute 25. Edw. 1 cap. 4. All men are enjoyned to uphold and maintain the great Charters see the sentence of the Clergy given against the breakers thereof In the name of the Father the Son and the Holy Ghost Amen Whereas our Sovereign Lord the King to the honour of God and the Holy Church and for the common profit of the Realm hath granted for him and his heirs for ever those Articles above written Robert Arch-bishop of Canterbury Primate of all England admonished all his Province once twice and thrice because shortness will not suffer so much delay as to give knowledge to all the people of England of these presents in Writing We therefore enjoyn all persons of what State soever they be that they and every of them as much as in them is shall uphold and maintain these Articles granted by our Sovereign Lord the King in all points and all those that in any point do resist or break or in any manner hereafter procure counsel or any wise assent to resist or break those ordinances or go about it by word or deed openly or privily by any manner of pretence or colour We the aforesaid Archbishop by our Authority in this Writing expressed do Excommunicate and Accurse and from the Body of our Lord Jesus Christ and from all the