assessed but by the Oath of good and honest men of the Vicinage No Free-man shall be taken or imprisoned nor be disseized of his Free-hold or Liberties or free Customs or be Out-lawed or Exiled or any other wayes destroyed nor we shall not pass upon him nor condemn him but by lawfull judgement of his Peers or by the Law of the Land we shall sell to no man we shall deny nor defer to no man either Justice or Right And to all these Customs Liberties aforesaid which we have granted to be holden within this our Realm as much as appertaineth to us and our Heirs we shall observe and all men of this our Realm as well Spiritual as Temporal as much as in them is shall observe the same against all persons in likewise And for this our Gift and Grant of these Liberties and for other contained in our Charter of Liberties of our Forrest the Arch-Bishops Bishops Abots Priors Earls Barons Knights Free-holders and other our Subjects have given unto us the fifteenth pars of all their moveables 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 and if any thing be procured by any person contrary to the Premises shall be had of no force nor effect These being Witnesses Boniface Arch-Bishop of Canterbury c. We ratifying and approving those Gifts and Grants aforesaid confirm and make strong all the same for us and our Heirs perpetually and by the Tenor of these Presents do renew the same willingly and granting for us and our Heirs that this Charter in all and singular his Articles for evermore shall be stedfastly firmly and inviolably observed And if any Article in the same Charter contained yet hither to peradventure hath not been observed nor kept we will and by our Authority-Royal command from henceforth firmly they be observed Witness c. The Sentence of Curse given by the Bishops with the Kings consent against the Breakers of the great Charter IN the year of our Lord 1253. the third day of May in the great Hall of the King at Westminster in the presence and by the consent of the Lord Henry by the Grace of God King of England and the Lord Richard Earl of Cornwall his Brother Roger Bigot Earl of Norfolk Marshal of England Humphrâ— Earl of Hereford Henry Earl of Oxford John Earl Warren and other Estates of the Realm of England We Boniface by the mercy of God Arch-Bishop of Centerbury Primate of England F. of London H. of Ely S. of Worcester E. of Lincoln W. of Norwich P. of Hereford W. of Salesbury W. of Durham R. of Excester M. of Carlile W. of Bath E. of Rochester T. of St Davids Bishops apparelled in Pontificals with Tapers burning against the Breakers of the Churches Liberties and of the Liberties and other Customs of this Realm of England and namely these which are contained in the Charter of the common Liberties of England and Charter of the Forrest have denounced Sentence of Excommunication in this form by the Authority of Almighty God the Father the Son and the Holy Ghost c. of the blâ—ssed apostlâ—s Peter and Paul and of all Apostles and of all Martyrs of blâ—ssed Edw. King of England and of all the Saints of Heaven We Excommunicate and Accurse and from the benefits of our holy Mother the Church we sequester all those that hereafter willingly and maliciously deprive or spoil the Church of her Right and all those that by any craft or willingness do violate break diminish or change the Churches Liberties and free Customs contained in the Charters of the common Liberties and of the Forrest granted by our Lord the King to Arch-Bishops Bishops and other Prelates of England and likewise to the Earls Barons Knights and other Free-holders of the Realm and all that secretly and openly by deed word or counsel do make Statutes or observe them being made and that bring in Customs to keep them when they be brought in against the said Liberties or any of them and all those that shall presume to judge against them and all and every such person before mentioned that â—iningly shall commit any thing of the premises let them well know that they incur the aforesaid Sentence ipso facto A Confirmation of the Charters and Liberties of England and of the Forrest made the twenty fifth year of Edward the first EDward by the Grace of God King of England Lord of Ireland Duke of Guyan to all those that these present Letters shall hear or see greeting Know ye that we to the honour of God and to the profit of our Realm have granted for us and our Heirs and the Charter of Liberties and the Charter of 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 Charters 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 Justices Sheriffs Mayors and other Ministers which under us have the Laws of our Land to guide shall allow the same Charters pleaded before them in Judgment in all their points that is to wit the great Charter as the Common Law and the Charter of our Forrest for the Welch of our Realm And we will that if any judgment be given from henceforth contrary to the points of the Charter aforesaid by the Justices or by any other of our Ministers that hold Plea before them against the points of the Charters it shall be undone and holden for naught 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 And that all Arch-bishops and Bishops shall pronounce the Sentence of Excommunication against all those that by word deed or counsel do contrary to the foresaid Charters or that in any point do break or undo them And that the said Curses be twice a year denounced and published by the Prelates aforesaid and if the same Prelates or any of them be remiss in the denunciation of the said Sentences the Arch-bishops of Canterbury and York for the time being shall compel and distrain them to the execution of their duties in form aforesaid The Sentence of the Clergy against the Breakers of the Articles above-mentioned IN the Name of the Father the Son and the Holy Ghost Amen Whereas our Soveraign Lord the King to the honour of God and of holy Church
THE Peoples Ancient and Just Liberties ASSERTED IN THE TRYAL OF William Penn and William Mead At the Sessions held at the Old-Baily in London the first third fourth and fifth of Sept. 70. against the most Arbitrary procedure of that Court. Isa 10. 1 2. Wo unto them that Decree Unrighteous Decrees and write grievousness which they have prescribed to turn away the Needy from Judgment and to take away the right from the Poor c. Psal 94. 20. Shall the Throne of Iniquity have fellowship with thee which frameth mischief by a Law Sic volo sic jubeo stat pro ratione voluntas Old-Baily 1st 3d. 4th 5th of Sept. 1670. Printed in the Year 1670. To the English Reader IF ever it were time to speak or write t is now so many strange Occurrances requiring both How much thou art concerned in this ensuing Tryal where not only the Prisoners but the Fundamental Laws of England have been most Arbitrarily Arraigned Read and thou mayst plainly judge Liberty of Conscience is counted a Pretence for Rebelliion and Religious Assemblies Routs and Riots and the Defenders of both are by them reputed Factious and dis-affected Magna Charta is Magnaf with the Recorder of London and to demand Right an Affront to the Court. Will and Power are their great Charter but to call for Englands is a Crime incurring the penalty of their Bale-Dock and Nastyhole nay the menace of a Gag and Iron Shackles too The Jury though proper Judges of Law and Fact they would have over-ruled in both as if their Verdict signified no more then to eccho back the illegal charge of the Bench and because their courage and honesty did more then hold pace with the threat and abuse of those who sate as Judges after two dayes and two nights restraint for a Verdict in the end were fined and imprisoned for giving it O! what monstrous and illegal proceedings are these Who reasonably can call his Coat his own When Property is made subservient to the Will and Interest of his Judges or who can truly esteem himself a Free man When all Pleas for liberty are esteemed Sedition and the Laws that give and maintain them so many insignificant pieces of formality And What do they less then plainly tell us so who at will and pleasure break open our Locks rob our Houses raze their Foundations imprison our Persons and finally deny us Justice to our relief as if they then acted most like Christian men when they were most barbarous in ruining such as really are so and that no Sacrifice could be so acceptable to God as the destruction of those that most fear him In short That the Conscientious should only be obnoxious and the just demand of our Religious Liberty the reason why we should be denyed our civil freedom as if to be a Christian and an English-man were inconsistant and that so much solicitude and deep contrivance should be imployed only to ensnare and ruin so many ten thousand conscientious Families so eminently industrous serviceable and exemplary whilst Murders can so easily obtain pardons Rapes be remitted publique Uncleanness pass unpunisht and all manner of Levity Prodigallity Excess Prophaneness and Atheism universally connived at if not in some respect manifestly encouraged cannot but be detestably abhorrent to every serious and honest mind Yet that this lamentable state is true and the present Project in hand let London's Recorder and Canterburies Chaplain be heard The first in his publique Panegerick upon the Spanish inquisition highly admiring the Prudence of the Romish Church in the erection of it as an excellent way to prevent Schism which unhappy expression at once passeth sentence both against our fundamental Laws and Protestant Reformation The second In his printed Mercenary discourse against Toleration asserting for a main Principle That it would be less injurious to the Government to dispence with prophane and loose Persons then to allow a toleration to religious Dissenters It were to over-do the business to say any more where there is so much said already And therefore to conclude we cannot choose but admonish all as well Persecutors to relinquish their Heady Partial and Inhumane Prosecutions as what will certainly issue in disgrace here and inevitable condign punishment hereafter as those who yet dare express their moderation however out of fashion or made the brand of Phanatischism not to be huf d or menaced out of that excellent temper to make their parts and persons subservient to the base humors and sinister designs of the bigest mortal upon Earth But to reverence and obey the Eternal just God before whose great Tribunal all must render their accounts and where he will recompence to every Person according to his works The Tryal of William Penn and William Mead. AS there can be no Observation where there is no Action so it s impossible there should be a juditious Intelligence without due Observation And since there can be nothing more seasonable then a right Information especially of Publick Acts and well knowing how industrious some will be to mis-represent this Tryal to the disadvantage of the Cause and Prisoners it was thought requisite in defence of both and for the satisfaction of the People to make it more publick nor can there be any business wherein the People of England are more concerned then in that which relates to their civil and Religious Liberties questioned in the Persons above-named at the Old-Baily the first third fourth and fifth of Sept. 1670. There being present Sam. Starling Mayor Tho. Howel Recorder Tho. Bludworth Alder. William Peak Alderm Richard Ford Alderman Joseph Shelden Alderman John Smith James Edwards Sheriffs Cryer O Yes Thomas Veer John Bushel John Hammond Charles Milson Gregory Walklet John Brightman Wil. Plumsted Henry Henley Thomas Damask Henry Michel William Lever John Baily The Form of the Oath You shall well and truely try and true Deliverance make betwixt our Soveraign Lord the King and the Prisoners at the Bar according to your Evidence So help you God That William Penn Gent. and William Mead late of London Linnen Draper with divers other Persons to the Jurors unknown to the number of three hundred the 14th day August in the 22th year of the King about eleaven of the clock in the â—orenoon the same day with force and arms c. in the Parish of St. Bent Grace-Church in Bridge-ward London in the Street called Gratious-Church-Street unlawfully and tumultuously did assemble and congregate themselves together to the disturbance of the Peace of the said Lord the King and the aforesaid William Penn and William Mead together with other Persons to the Jurors aforesaid unknown then and there so assemble and congregate together the aforesaid William Penn by agreement between him and William Mead before made and by abetment of the aforesaid William Mead then and there in the open Street did take upon himself to preach and speak and then and there did preach and speak unto the aforesaid
William Mead and other Persons there in the Street aforesaid being assembled and congregated together by reason whereof a great concourse and tumult of People in the Street aforesaid then and there along time did remain and continue in contempt of the said Lord the King and of his Law to the great disturbance of his peace to the great terror and disturbance of many of his Leige people and Subjects to the ill example of all others in the like case Offenders and against the peace of the said Lord the King his Crown and dignity What say you William Penn and William Mead are you guilty as you stand indicted in manner and form as aforesaid or not guilty Penn It is impossible that we should be able to remember the indictment verbatim and therefore we desire a Copy of it as is customary in the like occasions Rec. You must first plead to the indictment before you can have a Copy of it Pen. Iam unacquainted with the formality of the Law and therefore before I shall answer directly I request two things of the Court. First that no advantage may be taken against me nor I deprived of any benefit which I might otherwise have received Secondly that you will promise mē a fair hearing and liberty of making my defence Court No advantage shall be taken against you you shall have liberty you shall be heard Pen. Then I plead not guilty in manner and form Cla. What sayest thou William Mead art thou guilty in manner and form as thou standest indicted or not guilty Mead I shall desire the same liberty as is promised William Penn. Court You shall have it Mead Then I plead not guity in manner and form The Court adjourned until the afternoon Cryer O yes c. Cla. Bring William Penn and William Mead to the Bar. Obser The said Prisoners were brought but were set aside and other business prosecuted Where we cannot choose but observe that it was the constant and unkind practices of the Court to the Prisoners to make them wait upon the Tryals of Fellons and Murderers thereby designing in all probability both to affront and tire them After five hours attendance the Court broke up and adjourned to the third instant The third of September 1670. the Court sate Cry O yes c. Cla. Bring William Penn and William Mead before the Bar. Mayor Sirrah who bid you put off their Hats put on their Hats again Obser Whereupon one of the Officers putting the Prisoners Hats upon their Heads pursuant to the Order of the Court brought them to the Bar. Record Do you know where you are Pen. Yes Record Do not you know it is the Kings Court Pen. I know it to be a Court and I suppose it to be the Kings Court. Record Do you not know there is respect due to the Court Pen. Yes Record Why do you not pay it then Pen. I do so Record Why do you not pull off your Hat then Pen. Because I do not believe that to be any respect Record Well the Court sets forty Marks a piece upon your Heads as a Fine for your contempt of the Court. Pen. I desire it might be observed that we came into the Court with our Hats off that is taken off and if they have been put on since it was by order from the Bench and therefore not we but the Bench should be fined Mead I have a Question to ask the Recorder Am I fined also Recor. Yes Mead I desire the Jury and all people to take notice of this injustice of the Recorder who spake to me to pull off my Hat and yet hath he put a fine upon my head O fear the Lord and dread his Power and yeild to the guidance of his holy Spirit for he is not far from every one of you The Jury Sworn again Obser J. Robinson Lievtenant of the Tower disingeniously objected against John Bushell as if he had not kist the Book and therefore would have him sworn again though indeed it was on purpose to have made use of his tenderness of Conscience in avoiding reiterated Oaths to have put him by his being a Jury-man apprehending him to be a person not fit to Answer their arbitrary ends The Clark read the indictment as aforesaid Clar. Cryer Call James Cook into the Court give him his Oath Cla. James Cook lay your hand upon the book the evidence you shall give to the Court betwixt our Soveraign the King and the Prisoners at the Bar shall be the Truth and the whole Truth and nothing but the Truth so help you God c. Cook I was sent for from the Exchange to go and disperse a Meeting in Gratious-street where I saw Mr. Penn speaking to the people but I could not hear what he said because of the noise I endeavoured to make way to take him but I could not get to him for the crowd of people upon which Captain Mead came to me about the Kennel of the Street and desired me to let him go on for when he had done he would bring Mr Penn to me Cour. What number do you think might be there Cook About three or four hundred People Cour. Call Richard Read Give him his Oath Read being sworn was askt what do you know concerning the Prisoners at the Bar. Read My Lord I went to Gratious street where I found a great croud of People and I heard Mr. Pen preach to them and I saw Captain Mead speaking to Leivtenant Cook but what he said I could not tell Mead What did William Penn say Read There was such a great noise that I could not tell what he said Mead Jury observe this Evidence He saith he heard him preach and yet saith he doth not know what he said Jury take notice he swears now a clean contrary thing to what he swore before the Mayor when we were committed For now he swears that he saw me in Gratious-street and yet swore before the Mayor when I was committed that he did not see me there I appeal to the Mayor himself if this be not true but no answer was given Cour. What number do you think might be there Read About four or five hundred Pen. I desire to know of him what day it was Read Answ the 14th day of August Pen. Did he speak to me or let me know he was there for I am very sure I never saw him Cla. Cryer call into the Court. Cour. give him his Oath My Lord I saw a great number of People and Mr Penn I suppose was speaking I see him make a motion with his hands and heard some noise but could not understand what he said but for Captain Mead I did not see him there Rec. What say you Mr. Mead were you there Mead It is a Maxim in your own Law Nemo tenetur accusare seipsum which if it be not true Latine I am sure it is true Enlish That no man is bound to accuse himself And why dost thou offer to ensnare
another man Preaches and yet understand not what he saith he may conjecture it but that is a lame evidence in Law it might as well have been sworn That he was speaking of Law Physick Trade or any other matter of civil concernment Besides there is no Law against Preaching what is Truth whether it be in the Street or in any other place nor is it possible that any man can truly swear That he Preacht Sedition Heresie c. unless he so heard him that he could tell what he said § 5. The Evidence further saith That W. Mead was there but til being in Gracious-Street be a fault and hearing a man speak the Witness knows not what be contrary to Law the whole Evidence is useless and impertinent but what they want of that they endeavour to supply with Indictment whose parts we proceed to consider Exceptions against the Indictment § 6. It saith That the Prisoners were met upon the 15th day of August 1670 whereas their own Evidence affirms it to be upon the 14th day of August 70. § 7. That they met with force and Arms which is so great a Lye that the Court had no better cover for it then to tell the Jury it was only a piece of Form urging that the man tried for clipping of money this present Sessions had the same words used in his Indictment But that this Answer is too scanty as well as it was too weak to prevail with the Jury we desire it may be considered that the same words may be used more of course and out of form at one time then at another And though we grant they can have little force with any Jury in a Clippers case for meer Clipping yet they are words that give so just a ground of jealousie nay that carry so clear an Evidence of illegallity where they are truly proved and affirmed of any Meeting as that they are the proper Roots from whence do spring those Branches which render an Indictment terrible and an Assembly truly the terror of the people § 8. Unlawfully and tumultuously to disturb the Peace which is as true as what is said before that is as false this will evidently appear to all that consider how lawfull it is to assemble with no other design then to worship God and their calling a lawful Assembly an unlawfull one no more makes it so then to say Light is darkness black is white concludes so impudent a falsity true In short because to worship God can never be a crime no Meeting or Assembly designing to worship God can be unlawfull Such as go about to prove an unlawfull Assembly must prove the Assemblers intent not to Worship God but that no man can do because no man can know another mans intentions and therefore its impossible that any should prove such an Assembly unlawful That is properly an unlawful Assembly according to the definition of the Law when several persons are met together with design to use violence and to do mischief but that Dissenters meet with no such intention is manifest to the whole World therefore their Assemblies are not unlawful he that hath only right to be worshipped which is God hath only right to institute how he will be worshipped and such as worship him in that Way they apprehend him to have instituted are so far from being unlawful Assemblers that therein they do but express the duty they owe to God Tumultuously Imports as much as Disorderly or an Assembly full of Noise Bussle and Confusion using force and violence to the injury of Persons Houses or Grounds But whether Religious Dissenters in their peaceable Meetings therein desiring and seeking nothing more then to express that duty they owe to God Almighty be a Tumultuous action or meetting in the sence exprest and which is the very definition of the Law will be the question Certainly such as call these Meetings tumultuous as to break the peace offer the greatest violence to common words that can be well imagined for they may as rightly say such persons meet adulterously thievishly c. as to affirm they meet tumultuously because they are as truly applicable in short such particulars as are required to prove them such Meetings in Law are wholly wanting § 9. To the disturbance of the peace If the disturbance of the peace be but matter of form with the rest as is usually pleaded leave out this matter of form and then see what great matter will be left Certainly such Assemblies as are not to the breach and disturbance of the peace are far from being unlawful or tumultuary but if the peace be broken by them how comes it the evidence was so short We cannot believe it was in favour of the Prisoners This may shew to all the reasonable World how forward some are to brand innocency with hateful Names to bring a suspition where there was none deserved § 10. That the said Penn and Mead met by agreement before hand made But if persons that never saw each other nor converse together neither had correspondence by any other hand cannot be said to be agreed to any action before it be done then the Prisoners were far from an Agreement for they had never Seen Converst nor Corresponded directly nor indirectly before the Officers came to disturb the Assembly We well know how far they would have stretcht the word Agreement or Conspiracy but God who brings to nought the Counsels of the wicked prevented their cruel designs § 11. That William Mead did abet the said William Penn in preaching No man can be said to abet another whilst they are both unknown to each other especially in this case where abetting follows agreeing and agreeing supposes fore-knowledge Nay the word abet in Law signifies to command procure or counsel a person which W. Mead could not be said to do in reference to W. Pen they being so great Strangers one to another and at so great a distance for the Evidence proves that he was with Lievtenant Cook and Lievtenant Cook swears he could not make his way to W. Penn for the Croud § 12 That W. Penn ' s Preaching and speaking caused a great co 〈…〉 and tumult of People to remain and continue a long time in the 〈…〉 But this is so improbable to believe that the very nature of a tumult admits of no such thing as preaching but implies a disorderly multitude where all may be said to speak rather then any to hear § 1. In contempt of the King and his Laws They are so sar from contemning the King and his Laws that they are obleiged and constrained by their own principles to obey every Ordinance of man for the Lords sake but not against the Lord for mans sake which is the question in hand Besides their continuance there was not in contempt but by the permission of the chief Officer present that came there by the Kings authority nor is it for the honour of the King that such persons should be said to
and for the common profit of the Realm hath granted for him and his Heirs for ever these Articles above written Robert Arch-Bishop of Canterbury Primate of all England admonished all his Province once twice and thrice because that shortness will not suffer so much delay as to give knowledge to all the People of England of these presents in writing We therefore enjoyn all Persons of what estate soever they be that they and every of them as much as in them is shall uphold and maintain these Articles granted by our Soveraign 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 in any wise Assent to Testifie 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 Arch Bishop by our Authority in this Writing expressed do Excommunicate and Accurse and from the Body of our Lord Jesus Christ and from all the Company of Heaven and from all the Sacraments of Holy Church do sequester and exclude We may here see that in the obscurest Times of sottish Popery they were not left without a sence of Justice and the necessity of Liberty and Property to be inviolably enjoy'd which brings us to the cause of it 1st The cause of this famous Charter was as we have already said the Incroachments that were made by several Ministers of precedent Kings that almost became Customary and which had neer extinguisht the free Customs due to Englishmen How great care it cost our Ancestors it unbecomes us to ignore or by our silence to neglect It was that Yoak and Muzzle which failed not to dis-able many rageing Bears from entring the pleasant Vineyard of English-Freedoms that otherwise would not have left a fruitful Vine in being Anon we may give the Reader an account of some with their Wages as well as Works 2d The Reason of it is so great that it seems to be its own It is the very Image and Expression of Justice Liberty and Property Points of such eminent importance as without which no Goverment can be said to be reasonable but arbitrary and tyrannical It allows every man that liberty God and nature have given him and the secure possession of his property from the In-road or Invasion of his Neighbour or any else of that constitution It justifies no man in a fault only it provides equal and just ways to have the Offender tryed considering the malice of many Prosecutors and the great value of Liberty and Life 3d The End of it was the most noble of any earthly projection to wit The refixing of those shaken Laws held for many hundred years by constant claim that they living might be re-enstated in their primitive liberty and their posterity secured in the possession of so great a happiness Amongst those many rich Advantages that accrew to the free People of England from this great Charter and those many confirmatory Statutes of the same we shall present the Reader with the sight of some few that may most properly fall under the consideration and inquiry of these present times as found in our Common Law Books 1st That every English-man is born free 2d That no such Free-man shall be taken attached assessed or imprisoned by any Petition or Suggestion to the King or his Counsel unless by the indictment or presentment of good and lawful men where such deeds be done 5 Edw. 3. Chap. 9. 25 Edw. 3. Chap. 4. 17 R. 2. Chap. 6 Rot. Parl. 42 Edw. 3. Cook 2 Inst 46. 3d That no Free-man shall be diseized of his Free-hold or Liberties or free Customs c. Hereby is intended saith Cook That Lands Tenements Goods and Chattels shall not be seised into the Kings hands contrary to this great Charter c. 43. Ass pag. 12. 43 Edw. 3. Cook 2 Inst 32. Neither shall any such Free-man be put from his Livelyhood without answer Cook 2. Inst 47. 4ly That no Free-man shall be out-lawed unless he shroud and hide himself voluntarily from the Justice of the Law 2 3 Phil. Mar. Dier 114. 145. 5ly No Free-man shall be exiled Cook says there are but two Grounds upon which any man may be exiled One by Act of Parliament supposing it not contrary to the great Charter The other in case of abjuration for Fellony by the Common Law c. Cook 2. Inst 47. 6ly No Free-man shall be destroyed that is he shall not be fore-judged of Life Limb Dis-herited or put to Torture or Death every oppression against Law by colour of any usurped Authority is a kind of Destruction and t is the worst Oppression that is done by colour of Justice Cook Institu 2. 48. 7th That no Free-man shall be thus taken or imprisoned diseized out-lawed exiled or destroyed of his Liberties Free-holds and free Customs but BY THE LAWFUL JUDGMENT OF HIS PEERS vulgarly called Jury So that the Judgment of any fact or person is by this fundamental Law referred to the Brests and Consciences of the Jury It s rendred in Latine PER LEGALE JUDICIUM that is Lawful Judgment from whence it is to be observed that the Judgment must have Law in it and be according to Law which cannot be where they are not Judges how far the fact is legal or the contrary Judicium quasi Juris Dictum The Voice of Law and Right And therefore is their Verdict not to be rejected because it is supposed to be the Truth according to their Consciences For Ver dictis from vere dictum is quasi dictum veritatis or a true saying or judgment 9 Hen. 3. 29. Cook Inst 1. 39. Iust 4. 207. Cook says that by the word LEGALE three things are implyed 1st That this was by Law before the Statute and therefore this Statute but declaratory of the antient Law 2d That their Verdict must be legally given wherein is to be observed 1st The Jury ought to hear no Evidence but in the hearing and presence of the Prisoner 2d That they cannot send to ask any Question in Law of the Judges but in the presence of the Prisoner for de facto Jus oritur 3d The Evidence produced by the Kings Counsel being given the Judges cannot collect the Evidence nor urge it by way of charge to the Jury nor yet confer with the Jury about the Evidence but in the presence of the Prisoner Cook Inst 2. 49. 8th Or by the Law of the Land It is a Synonimous expression importing no more then by a Tryal of Peers or a Jury for it is sometimes rendred not or disjunctively but and which is connectively however it can never signifie any thing contrary to the old way of trying by Peers for then it would be connected to a contradiction Besides Cook well observes that in the 4th Chap. of the 25th Edw. 3 Per Legem Terrae imports no more then a Tryal by due process and writ Original at Common Law
by the commonalty of the same Shire three substantial men Knights or other lawful wise and well disposed persons to be Justices which shall be assigned by the Kings Letters Patents under the great Seal to hear and determine without any other writ but only their Commission such plaints as shall be made upon all those that commit or offend against any point contained in the aforesaid Charters 28 Edw. 1. chap. 1. 6ly The necessity of preserving these Charters hath appeared in nothing more than in the care they have taken to confirm them which as Cook observes hath been by thirty two Parliaments confirmed established and commanded to be put in execution with the condign punishment they had inflicted upon the Offenders Cooks Proem to the second Book of his Inst 7ly That in the notable Petition of Right many of these great Priviledges and free Customs contained in the aforesaid Charters and other good Laws are recited and confirmed 3 Car. 1. 8ly The late King in his Declaration at New-Market 1641. acknowledged the Law to be the Rule of his Power By which he doubtless intended Fundamental Laws since it may be the great advantage of Countries sometimes to suspend the execution of temporary Laws Having so manifestly evidenced that venerable esteem our Ancestors had of that Golden Rule the great Charter with their deep solicitude to preserve it from the defacing of usurpation and faction We shall proceed to give an account of their just resentment and earnest prosecution against some of those who in any Age have adventured to undermine that antient Foundation by introducing an arbitrary way of Government 1st As Juditious Lambard reports in his Saxon Translation That the Kings in those dayes were by their Coronation-Oaths obliged to keep the antient fundamental Laws and Customs of this Land of which this great Charter is but declaratory so did King Alfred reputed the most famous Compiler of Laws amongst them give this discovery of his Indignation against his own Judges for actions contrary to those fundamental Laws that he commanded the execution of forty of them which may be a seasonable Caveat to Judges of our times 2d Hubert de Burgo once chief Justice of England having advised Edw. 1. in the eleventh year of his reign in his Counsel holden at Oxford To cansel this great Charter and that of the Forrest was justly sentenced according to Law by his Peers in open Parliament When the Statute called CONFIRMATIONIS CARTARUM was made in the first Chapter whereof Magna Charta is peculiarly called the Common Law 25 Edw. 1. Chap. 2. 3d The Spencers both Father and Son for their arbitrary domination and rash and evil counsel to Edw. the 2d by which be was seduced to break the great Charter were banished for their pains as Cook relates 4ly The same fate attended Tresillian and Belknap for their illegal proceedings 5ly the Breach of this great Charter was the ground of that exemplary Justice done upon Empson and Dudley whose case is very memorable in this point For though they gratified Hen. 7. in what they did and had an Act of Parliament for their Warrant made the eleventh of his reign yet met they with their due reward from the hands of Justice that Act being against Equity and common Reason and so no justifiable ground or Apology for those frequent abuses and oppressions of the People they were found guilty of Here what the Lord Cook further saith concerning the matter There was an Act of Parliament made in the eleaventh year of King Hen. 7. which had a fair flatteriing Prâ—â—mble pretending to avoid divers mischiefs which were 〈◊〉 The high displeasure of Almighty God 2d The great let of the common Law And 3d The great Let of the Wealth of this Land And the purvien of that Act tended in the execution contrary EX DIAMETRO viz. To the high Dispeasure of Almighty God and the great Let nay the utter subversion of the common Law and the great Let of the Wealth of this Land as hereafter shall appear the substance of which Act follows in these words THat from thenceforth as well Justices of Assize as Justices of the Peace in every County upon information for the King before them made without any Finding or Presentment by Twelve men shall have full Power and Authority by their discretion and to hear and determine all Offences as Riots unlawfull Assemblies c. committed and done against any Act or Statute made and not repeal'd c. a Case that very much resembles this of our own times By pretext of this Law Empson and Dudley did commit upon the Subjects unsufferable Pressure and Oppressions and therefore this Statute was justly soon after the decease of Hen. 7. repealed at the next Parliament after his decease by the Statute of the 1 H. 8. chap. 6. A good Caveat to Parliaments to leave all causes to be measured by the Golden and Straight Metwand of the Law and not to the incertain and crooked Cord of discretion It is almost incredible to foresee when any Maxime or Fundamental Law of this Realm is altered as else-where hath been observed what dangerous inconveniences do follow which most expresly appeareth by this most unjust and strange Act of the eleventh of H. 7. For hereby not only Empson and Dudley themselves but such Justices of Peace corrupt men as they caused to be authorized committed most grievous and heavy Oppressions and Exactions grinding the faces of the poor Subjects by penal Laws be they never so obsolete or unfit for the time by information only without any presentment or tryal by Jury being the antient Birth-right of the Subject but to hear and determine the same by their discretions inflicting such penalty as the Statute not repealed imposed These and other like Oppressions and Exactions by or by the means of Empson and Dudley and their Instruments brought infinite treasure to the Kings Cofers whereof the King himself at the end with great grief and compunction repented as in another place we have observed This Statute of the 11th of H. 7. we have recited and shewed the just inconveniences thereof to the end that the like should never hereafter be attempted in any Court of Parliament and that others might avoid the fearful end of those two Time-servers Empson and Dudley Qui eorum urstiquijs insistunt eorum exitus per horrescant See the Statute of 8. Edw. 4. chap 2. a Statute of Liveries an Information c. By the discretion of the Judges to stand as an Original c. This Act is desertedly repealed vide 12 R. 2. chapter 13. punishment by discretion c. vide 5th of H. 4. Chap. 6 8. See the Commission of Sewers discretion ought to be thus discribed Discretio est descernere per Legem quid sit justum From whence three things seem most remarkable First The great equity and justice of the great Charter with the high value our Ancestors have most deservedly set upon it