the lawful Inheritance of all Commoners That all Statute-Laws or Judgments whatsoever made in Opposition thereunto should be null and void That all the Ministers of State and Officers of the Realm should constantly be sworn to the Observation thereof and so deeply did after-Parliaments reverence it and so care ful were they to preserve it that they both confirm'd it by 32. several Acts and enacted Copies to be taken and lodg'd in each Cathedral of the Realm to be read four times a Year publickly before the People as if they would have them more oblig'd to their Ancestors for redeeming and transmitting those Priviledges then for begetting them And that Twice every Year the Bishops apparel'd in their Pontificials with Tapers burning and other Solemnities should pronounce the greater Excommunication against the Infringers of the Great Charter though it were but in Word or Counsel for so saith the Statute I shall for further Satisfaction repeat the Excommunication or Curse pronounced both in the Dayes of Henry the Third and Edward the First The Sentence of the Curse given by the Bishops with the King's 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 Humphry 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 Canterbury Primate of England F. of London H. of Ely S. of Worcester E. of Lincoln W. of Norwich P. of Hereford W. of Salisbury W. of Durham R. of Excester M. of Carlile W. of Bath E. of Rochester T. of St. Davids Bishop apparell'd in Pontificials with Tapers burning against the Breakers of the Churches Liberties and of the Liberties and other Customes 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 blessed Apostle Peter and Paul and of all Apostles and of all Martyrs of blessed Edw. King of England and of all the Saints of Heaven We Excommunicate and Accurse and from the Benefit 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 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 all those that shall presume to judge against them and all and every such Person before-mention'd that wittingly shall commit any Thing of the Premises let them well know that they incur the aforesaid Sentence ipso facto 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 and for the common Profit of the Realm hath granted for him and his Heirs for ever these Articles above-xwriten 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 Time of Popery they were not left without a Sence of Justice and the Papists whom many think no Friends to Liberty and Property under dreadful Penalties injoyn an inviolable Observance of this great Charter by which they are confirm'd And though I am no Roman Catholick and as little value their other Curses pronounc'd upon Religious Dissents yet I declare ingenuously I would not for the World incur this Curse as every Man deservedly doth that offers Violence to the Fundamental Freedoms thereby repeated and confirmed And that any Church or Church Officers in our Age should have so little Reverence to Law Excommunication or Curse as to be the Men that either vote or countenance such Severities as bid Defiance to the Curse and rend this memorable Charter in pieces by disseizing Free-men of England of their Freeholds Libâ—â—ties Properties meerly for the Inoffensive Exercise of their Coâ—science to God in Matters of Worship is a Civil sort of Sacriledge I know it is usually objected That a great Part of the Charter is spent on the Behalf of the Roman Church and other Things now abolisht and if one Part of the great Charter may be repeal'd or invalidated why not the other To which I answer This renders nothing that is Fundamental in the Charter the less valuable for they do not stand upon the Legs of that Act though it was made in Honour of them but the Ancient and primitive Institution of the Kingdom If the Petition of Right were repeal'd the great Charter were never the less in Force it being not the Original Establishment but a Declaration and Confirmation of that Establishment But those Things that are abrogable or abrogated in the great Charter were never a Part of Fundamentals but hedg'd in then for present Emergency or Conveniency Besides that which I have hitherto maintained to be the Common and Fundamental Law of the Land is so reputed and further ratified by the Petition of Right 3 Car. 1. which was long since the Church of Rome lost her Share in the Great Charter Nor did it relate to Matters of Faith and Worship but-Temporalities only the Civil Interest or Propriety of the Church But with what
Priviledges when the very Tenour of the Words prove the contrary for Freehold Liberties or Free Customs are by the Charter it self supposed to be in the Possession of the Free-men at the making and publishing thereof No Free-man shall be taken or imprison'd then he is free this Liberty is his Right Again No Free-man shall be disseized of his Freehold Liberties or free Customs then certainly he was in Possession of them And that great Father in the Laws of England Chief Justice Cook in his Proaem to the 2d Part of his Institutes tells us that thâ—se Laws and Liberties were gather'd and observ'd amongst others in an intire Volumn by King Edward the Confessor confirmed by William sirnamed the Conqueror which were afterwards ratified by Henry the first enlarged by Henry the second in his Constitutions at Clarendon and after much Contest and Blood split between King John and the Barons concerning them were solemnly established at running-Mead near Stanes and lastly brought to their former Station and publish'd by this King Henry the third in the 9th Year of his Reign And though Evil Counsellors would have provoakt him to void his Father's Act and his own as if the first had been the Effect of Force the other of Non-Age yet it so pleased Almighty God who hath ever been propitious to this Ungrateful Island that in the 20th Year of his Reign he did confirm and compleat this Charter for a perpetual Establishment of Liberty to all free-born English Men and their Heirs forever ordaining Quod contravenientes per Dominum Regem cum convicti fuerint graviter puniantur i. e. but whosoever should act any Thing contrary to these Laws upon Conviction should be grievously punished by our Lord the King And in the 22 Year of his Reign it was confirmed by the Statute of Marleb c. 5. and so venerable an Esteem have our Ancestors had for this great Charter and indispensibly necessary have they thought it to their own and Posterities Felicity that it hath been above 30 Times ratified and commanded under great Penalties to be put in Execution Here are the 3 Fundamentals comprehended exprest to have been the Rights and Priviledges of English Men. 1. Ownershp consisting of Liberty and Property in that it supposes English Men to be Free there 's Liberty next that they have Freeholds there 's Property 2. That they have the Voting of their own Law for that was an ancient free Custom as I have already prov'd and all such Costoms are expresly confirmed by this great Charter Besides the People helpt to make it 3. An Influence upon and a real Share in the Judicatory Power in the Execution and Application of Law This is a substantial Part thrice provided for in those sixteen Lines of the great Charter by us rehears'd 1. That no Amercement shall be assessed but by the Oath of good and honest Men of the Vicinage 2. Nor we shall not pass upon him nor condemn him but by Lawful Judgment of his Peers 3. Or by the Law of the Land which is Synonymous or a Saying of equal Signification with Lawful Judgment of Peers for Law of the Land and Lawful Judgment of Peers are the Proprium quarto modo or essential Qualities of these Chapters of our great Charter being communicable Omni soli semper to all and every Clause thereof alike Chief Justice Cook well observes that per legem terrae or by the Law of the Land imports no more then a Tryal by Proces and Writ original at common Law which cannot be without the Lawful Judgment of Equals or a common Jury therefore per legale Judicium parium by the Lawful Judgment of Peers and per legem terrae by the Law of the Land plainly signifie the same Priviledge to the People So that it is the Judgment of the Free-men of England which gives the Cast and turns the Scale of English Justice These Things being so evidently prov'd by long Use and several Laws to have been the first Principles or Fundamentals to the English free Government I take leave to propose this Question May the free People of England be justly disseized of all or any of these fundamental Principles without their Individual Consent Answ With Submission to better Skill I conceive Not for which I shall produce first my Reasons then Authorities 1. Through the Brittish Saxon and Norman Times the People of this Island have been reputed and call'd Free-men by Kings Parliaments Records and Histories and as a Son supposes a Father so Free-men suppose Freedom This Qualification imports a supream Right such a Right as beyond which there is none on Earth to disfree them or deprive them of it therefore an unalterable fundamental Part of the Government 2. It can never be thought that they intrusted any Legislators with this Capital Priviledge further then to use their best Skill to secure and maintain it that is so far as they were a Part of the English Government they never delegated or impower'd any Men that de jure they could deprive them of that Qualification and a Facto ad Jus non valet Argumentum for the Question is not What May be done but what Ought to be done Overseers and Stewards are impower'd not to alienate but preserve and improve other Mens Inheritances No Owners deliver their Ship and Goods into any Man's Hands to give away or run upon a Rock neither do they consign their Affairs to Agents or Factors without Limitation All Trusts suppose such a Fundamental Right in them for whom the Trusts are as is altogether indissolvable by the Trustees The Trust is the Liberty and Property of the People the Limitation is that it should not be invaded but inviolably preserved according to the Law of the Land 3. If Salus Populi be suprema lex the Safety of the People the highest Law as say several of our ancient famous Lawyers and Law-Books then since the aforesaid Rights are as the Sinnews of this free Body politique or that soveraign Cordial without which this free People must needs consume and pine away into utter Bondage it follows they are the highest Law and therefore ought to be a Rule and Limit to all subsequent Legislation 4. The Estate goes before the Steward the Foundation before the House People before their Representatives and the Creator before the Creature The Steward lives by preserving the Estate the House stands by Reason of its Foundation the Representative depends upon the People and the Creature subsists by the Power of its Creator Every Representative in the World is as the Creature of the People for the People make them and to them they owe their Being Here is no Transessentiating or Transubstantiating of Being from People to Representative no more then there is an absolute transferring of a Title in a Letter of Atorney The very Term Representative is enough to the contrary Wherefore as the House cannot stand without its Foundation nor the Creature subsist without
its Creator so can there be No Representative without a People nor that People free which all along is intended as inherent to and inseparable from the English People without Freedom nor can there be any Freedom without something be Fundamental In short I would fain know of any Man how the Branches can cut up the Root of the Tree that bears them How any Representative that is not only a meer Trust to preserve Fundamentals the Peoples Inheritance but that is a Representative that makes Laws by Virtue of this Fundamental Law that the People hath a Power in Legislation the 2d Principle prov'd by me can have Power to remove or destroy that Fundamental The Fundamental makes the People free this free People make a Representative Can this Creature unqualifie its Creator What Spring ever rose higher then its Head The Representative is at best but a true Copy an Exemplification the free People are the Original not cancellable by a Transcript And if that Fundamental that gives to the People a Power of Legislation be not annullable by that Representative because it makes it what it is much less can that Representative disseize Men of their Liberty and Property the first Great Fundamental that is the Parent of this other which intitles to a Share in making Laws for the Preservation of the first inviolably Nor is the third other then the necessary Production of the two first to intercept Arbitrary Designs and make Power legal for where the People have not a Share in Judgment that is in the Application as well as making of the Law the other two are imperfect open to daily Invasion should it be our Infelicity to have a violent Prince for as Property is every day expos'd where those that have it are destitute of Power to hedge it about by Law-making so those that have both if they have not the Application of the Law but the Creatures of another Part of the Government how easily is that Hedge broken down And indeed as it is a most just and necessary as well as ancient and honourable Custom so it is the Princes Interest for still the People are concern'd in the Inconveniencies with him and he is freed from the Temptation of doing arbitrary Things and their Importunities that might else have some Pretence for such Adresses as well as from the Mischiefs that might ensue such Actions It might be enough to say that here are above 50 Statutes now in Print beside its venerable Antiquity that warrant and confirm this Legale judicium parium suorum or the Tryal of English Men by their Equals But I shall hint at a few Instances The first is The Earl of Lancaster in the 14th of Edw. 2. adjudged to dye without Lawful Tryal of his Peers and afterwards Henry Earl of Lancaster his Brother was restored the Reasons given were two 1. Because the said Thomas was not arraign'd and put to Answer 2. That he was put to Death without Answer or Lawful Judgment of his Peers The like Proceedings were in the Case of John of Gaunt p. 39. coram Rege And in the Earl of Arundel's Case Rot. Parl. 4 Edw. 3. n. 13. And in Sr. John Alce's Case 4 Edw. 3. n. 2. Such was the Destruction committed on the â—d Hastings in the Tower of London by Richard the 3d. But above all that Attainder of Thomas Cromwel Earl of Essex who was attainted of high Treason as appears Rot. Parl 32. Hen. 8. of which saith Chief Justice Cook as I remember Let Oblivion take away the Memory of so foul a Fact if it can if not however let Silence cover it 'T is true there was a Statute obtained in the 11th of Henry the 7th in Defiance of the Great Charter which authoriz'd several Exactions contrary to the free Customs of this Realm particularly in the Case of Juries both sessing and punishing by Justices of Assize and of the Peace without the fining and Presentment of 12 Free-men Empson and Dudley were the great Actors of those Oppressions but they were hang'd for their Pains and that illegal Statute repealed in the 1st of Henry the 8th c. 6. The Consequence is plain That Fundamentals give Rule to Acts of Parliament else why was the Statute of the 8th Edw. 4. c. 2. of Liveries and Information by the Discretion of the Judges to stand as an Original and this of the 11th of Henry the 7th repealed as illegal for therefore any Thing is unlawful because it transgresseth a Law But what Law can an Act of Parliament transgress but that which is Fundamental Therefore Tryal by Juries or Lawful Judgment of Equals is by Acts of Parliament confest to be a Fundamental Part of our Government And because Chief Justice Cook is generally esteem'd a great Oracle of Law I shall in its proper Place present you with his Judgment upon the whole Matter 5. These Fundamentals are unalterable by a Representative which were the Result and Agreement of English Free-men individually the ancienter Times not being acquainted with Representatives for then the Free-men met in their own Persons In all the Saxons Story we find no Mention of any such Thing for it was the King Lords and Free-men the Elders and People and at the Counsel of Winton in 855. is reported to have been present the Great Men of the Kingdom and an INFINIT MULTITUDE of other faithful People Also that of King Ina the common Council of the Elders PEOPLE of the WHOLE Kingdom It is not to be doubted but this continued after the Norman Times and that at Running Mead by Staâ—â—s the Freemen of England were personally present at the Confirmation of that great Charter in the Reign of King John But as the Ages grew more human with respect to Villains and Retainers and the Number of Free-men encreased there was a Necessity for a Representative especially since Fundamentals were long ago agreed upon and those Capital Priviledges put out of the Reach and Power of any litle Number of Men to endanger And so careful were their Representatives in the time of Edward the Third of suffering their Liberties and free Customs to be infring'd that in Matters of extraordinary Weight they would not determin till they had first return'd and conferr'd with their several Counties or Burroughs that delegated them Several Authorities in Confirmation of the Reasons So indubitably are these Fundamentals the Peoples Right and so necessary to be preserved that Kings have successively known no other safe or legal Passage to their Crown Dignity then their solemn Obligation inviolably to maintain them So sacred were they reputed in the Dayes of Henry the 3d that not to continue or confirm them were to affront God and damn the Souls of his Progenitors and Successors to Depress the Church and Deprave the Realm That the Great Charter comprehensive of them should be allow'd as the common Law of the Land by all Officers of Justice that is