Authority of Parliament but of many Parliaments such Parliaments of such Infallibility as were those wherein Magna Charta and all its Confirmations were made and grounded upon the Common-Laws of England which as all Lawyers profess were grounded upon the Law of God the Word of God the God of Christians Christ Jesus the God of Truth even Truth it self to put them in Execution If not To what ends are Parliaments or the Laws of God and man to such as dare not or will not if and when they may Doth not the Statute of Ano. 1o. P. M. cap. 12o. which made it Fellony for twelve English persons or above to assemble together of purpose to break any point of the Laws of England imply it to be Warrantable for all the People of England to Assemble together to cause the Laws of England made by all their consents to be observed and to punish not onely the Breakers but also the onely begetters and causers of all the Breakers and Breaches of all the Laws of England the onely assumers of the knowledg thereof and concealers of that knowledge from the People so that none but themselves can knowingly break the Laws because they will not let them know them Lastly If Excommunications be nothing formidable to Lawyers to make them care whether they incur or shun them but as their profit guids them Let us see what the L. Coke saith fol. 536. concerning the conclusion of this Act and the Seals that were put to it and the Oaths of the King and Parliament then and for ever for the Ratification of it omitted in the Stat. at large in Print but to be seen in the Tower Rot. Parl. 7o. Hen. 4th no. 60. begining with the word Simile c. Note saith he the Solemnitie of this Act in that all the Arch-Bishops Bishops Earls Berons c. did put their Seals thereunto A rare example which was done for the obliging of them the more firmly to the observation of this Act which concerned the Laws Liberties and Free-Customs of their Countrey and for their greater Obligation for the due Observation of this Act they took a voluntary Corporal Oath And let us note Expost Q. that if the Judgement of God and this Parliament hath made the Prelates sensible of their slighting of their Predecessors Excommunications seals and oaths by what justice or excuses shall Lawyers avoid the same Judgement And though the Ignorance of Mag. Charta and the Law which Lawyers have begotten caused by concealing the same from them as aforesaid can be no safe Plea for any with God or man without prayers for Remission and manifestation of Repentance yet is Ignorance a better subject for mercy than knowing wilfulness and the people while ignorant of Mag. Charta are more capable of grace for the breaking of it than when they know it if they put not the Iudgements of it in Execution against the causers of their offence Now I shall let you see that there were two Excommunications denounced against the breakers of Mag. Charta according to this Statute as followeth The Year of our Lord One thousand two hundred fiftie three Excomunic prim the third of May in the great Hall of the Ring at Westminster in the presence and by the assent of the Lord Henry by the Grace of God King of England and the Lord Richard Earl of Cornwall his brother Roger Bigor Earl of Norfolk and Suffolk Marshal of England Humohrey Earl of Herford Henry Earl of Oxford John Earl Warren and other estates of the Realm of England We Boniface by the mercie of God Arch-bishop of Canterbury Primate of all England T. of London H. of Ely S. of Worcester E. of Lincoln W. of Norwich P. of Herford W. of Salisbury W. of Durham R. of Excester M. of Carlile W. of Bath E. of Rochester T. of S. Davids Bishops apparrelled in Pontificals with tapers burning against the breakers of the Churches Liberties and of the Liberties or other Customs of the Realm of England and namely of those which are contained in the Charter of the Common Liberties of England Charter of the Forrest have denounced the sentence of Excommunication in this Form By the Authoritie of Almightie God the Father the Son and the holy Ghost and of the glorious Mother of God and perpetual Virgin Mary of the blessed Apostles Peter and Paul and of all Apostles and of all Martyrs of blessed Edward King of England and of all the Saints of heaven We Excommunicate 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 wiliness 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 Freeholders of the Realm and all that secretly or openly by deed word or counsel do make Statutes or observe them being made or that bring in Customs or keep them being brought in against the said libertis or any of them the Writers Lawmakers Counsellors and the Executors of them and all those that shall presume to Judge against them All and every which Persons before mentioned that willingly shall commit any thing of the Premises let them well know That they incur the foresaid sentence Ipso sacto first upon the deed done And those that commit ought ignorantly and be admonished except they Reform themselves within 15. daies after the time of the Admonition and make full satisfaction for that they have done at the will of the Ordinary shall be from that time forth wrapped in the same sentence And with the same sentence we burthen all those that presume to perturb the peace of our Sovereign Lord the King and of the Realm To the perpetual memory of which thing We the aforesaid Prelates have put Our Seals to these Presents What though the Form of this Excommunication be Popish Expost and Quer. Is not the Substance the maintenance of Englands Liberties And is not that all which the meaning of this Law requireth If Judges and Prelates as well since King Hen. 8. as before have neglected their Duties in Itterating the charge of their Functions the first in pronoucing Sentence and the other in Executing it doth not once pronoucing once executing of such one Sentence of Law as concerneth all Ages Sexes and Conditions of People to learn and remember no less for the Preservation of their lives and livelihoods than Scriptures for their Salvation take away the plea of Ignorance from all men Shall any man commit that sin which he knoweth to be once so Declared by the Law and think to avoid punishment because not often so Declared by Law-Professours Are not all men bound to search the Scriptures and
JUDGES JUDGED out of their own mouthes OR The QUESTION Resolved by MAGNA CHARTA c. Who have been Englands Enemies Kings Seducers and Peoples Destroyers from Hen. 3. to Hen. 8. and before and since Stated by Sr. EDVVARD COKE Kn ◠late L. Chief Justice of England Expostulated and put to the Vote of the People by J. JONES Gent. Whereunto is added Eight Observable Points of Law Executable by Justices of Peace Abusum ego non usum forensem damne Ex legibus illis quae non in tempus aliquod sea perpetuâ utilitatis causâ in aeternum latae sunt null abrogari debet nisi quam aut u sus ceärguit aut status aliquis Reipublica inutilem fecit Tit. Liv. lib. 4. dec 4. LONDON Printed by W. Bently and are to be sold by E. Dod and N. Ekins at the Gun in Ivy-Lane MDCL To the Right HONOURABLE HONOURABLE Right WORSHIPFULL And Well-beloved the COMMONS and PEOPLE of England Universally BEcause Magna Char. Printed in English An. 1564. and bound up with other Statutes at large too Voluminous and costly for the generality to read or buy doth yield less profit than hath been long necessary I have presumed at the instance of some to Dedicate this Treatise to you all as it concerneth the good of all that be or would be good the hurt of none that have left any unhurt wherein you shall find so many Chap. of Mag. Char. Confir Char. Art super Char. and other Statutes at large corroborating the same and the L. C. Exposition thereupon with some Expostulations and Queres of mine own as I thought requisite or convenient for these times The rest of the Charter concerning the Church yet unsetled or the Kings Tenures otherways disposed of I have omitted as useless desiring that thus much may prove useful to all undertakers of Reformation as well Martial as Civil Whose Servant to my power I shall ever be and continue with due faithfulness and humility Jo. Jones The Great CHARTER of the LIBERTIES of ENGLAND Granted to the People of the same By King HENRY the third And accorded between him and them in diverse full Parliaments as followeth viz. HENRY by the Grace of God King of England Lord of Ireland Duke of Normandie and Guyen and Earl of Angeow To all Arch-Bishops Bishops Abbots Priors Earls Barons Sheriffs Provosts Officers And to all Bailiffs and our faithfull Subjects which shall see this present Charter greeting Know ye that We to the honour of Almightie God and for the salvation of the souls of our Progenitours and Successours Kings of England to the advancement of holy church and amendment of our Realm of England of Our meer free will have given and granted to all Arch-Bishops Bishops Abbots Priors Earls Barons and to all Free-men of this Realm of England for evermore First We have granted to God and by this present Charter have confirmed for Vs Cap. 1. Liberties and our Heirs for evermore That the church of England shall be free and shall have all her whole rights and liberties inviolable We have granted also and given to all Free-men of our Realm for Vs and Our Heirs for evermore these Liberties under-written to have and to hold to them and to their heirs of Vs and Our heirs for evermore Here be four rehearsals saith the Lord Coke of four notable causes of the making this Law Lord Coke upon Mag. Chart. Fol. 1. First for the honour of God Secondly for the health of the Kings soul Thirdly For the exaltation of the church Fourthly for the amendment of the Kingdom And all granted to all subjects and their heirs from the King and his heirs for evermore That the great Charter might live and take effect in all successions of ages for ever Expost and Quer. The last of these causes which the L. C. in his Preamble calleth the ends for which this Charter was made being for the amendment of the Realm was saith the L. C. upon the first chapter of confirmatio Chart. fol. 529. to amend great mischiefs and inconveniences which oppressed the whole Realm before the making of both Charters viz. This and the Charter of the Forrest which saith the L. C. in his Preface were declarative Acts of the old Common-Law of the Land and no introductives of any new Law If the mischiefs and inconveniencies of the Realm were great before the said Acts were made to declare the Laws of the land which formerly the lawyers reserved to themselves till then undeclared Were there not greater since those Acts were made and the Lawes thereby declared and since the accord of King and People to keep the same inviolable when and as often as they were violated by Kings and their Counsel learned in the Laws As hereafter shall appear We Cap. 8. Debt Debtors Suerties nor Our Bailiffs shall not seise any lands or rent for any debt as long as the present goods and chattels of the debtors do suffice to pay the debt and the debtor himself be ready to satisfie Therefore shall neither the pledges of the debtor be distrained as long as the principle debtor is sufficient for payment of the debt and if the principal debtor fail in paiment of the debt haveing nought wherewith to pay or will not where he is able enough Then the pledges shall answer for the debt and if they will they shall have the lands and rents of the debtor until they be satisfied of that which they before paid for him except that the debtor can shew himself to be acquitted against the suerties We saith the Lord Coke spoken in the politique capacitie of a King L. Coke upon M. C. fol. 19. extendeth to his Successours And by Bailiffs are meant Sheriffs who write Baliva mea c. And by the words shall not seiz is expressed the Kings Grace who by the Common-Law had Execution against his Debtors bodies lands and goods And by the Statute of 33. Hen. 8. cap. 9. The Sheriff is to inquire c. and to extend all Lands Goods Chattels c. and 〈◊〉 take and imprison the Bodies as by that Stat. appeareth and as the daily practice sheweth Expost and Quer. If We extend to Successors even to King Hen. 8. Why not longer If Magna Charta was to live for ever Why not hitherto If the King of his Grace remitted by this Act the execution which the Common Law gave him before against his Debtors Bodies Lands and Goods in case of having nought wherewith to pay through decay of their estates by unavoidable necessities then the Kings Debtors obtained of the Kings Grace as much Liberty for their bodies as this King gave to all his free subjects by the 29th of this Act viz. No Free man c. And for his Estate as much as the proverb saith Where nothing is to be bad the King looseth his due If the King did not remit so much by this Act then did he gain thereby more
than he gave contrary to the opinion of all Lawyers that say All Acts of Parliament are to be expounded for the benefit of the Subject And what and how did he gain but contrary to his Honour much more to his Grace when two more of his subjects were hedged in by this Act as Pledges to pay for his undone Debtor and to undoe themselves and their families by the bargain And their estates being too little to pay their own debts their Creditours must see the King first served our of the same to their no small prejudice if not undoing whereby many are injured through one mans occasion If therefore this Act ought to be construed for the honour of the King and benefit of the subject as I believe it ought and the L. C. saith others have thought so it followeth That the Statute of the 33. Hen. 8.9 was made as many more were before and since against Mag. Chart. and not onely against Kings honour and grace but also their Oathes to the undoing of multitudes of their subjects which was ungracious for their Counsel learned in the Laws to give advice or assent to the making such Laws or when made to allow them much more to maintain them being that all Judges are to receive Mag. Chart. for a Plea against all Statutes made against it And all Judgements given against Mag. Chart. are and ought to be void as appeareth in the L. C. preamble And all such Statutes as were made before the 42. of Ed. 3. against Mag. Chart. were then replealed and as I conceive all made so since are repealed by the Petition of Right 3. Car. that restored Mag. Char. to its primitive vigor and consequently enervated all its opponents The City of London shall have the old Liberties Cap. 9. London c. and customs which it hath been used to have Moreover We will and grant that all other Cities Burroughs Towns and the Barr ons of the five Ports and all other Ports shall have their Liberties and Free-customs This Chapter saith the Lord Coke is excellently interpreted by an ancient Author quoting the Mirrour in the Margent who saith L. C. upon M. C. fol. 20. that by this Chapter the Citizens of London ought to have their Franchizes whereof they are inheritable by loyal Title of the gift and confirmation of the Kings which they have not forfetted by any abuse and that they shall have their Franchizes and Customes which are sufferable by right and not repugnant to law And the same interpretation serveth for the Cinque-ports and other places Expost and Quer. Doth not this Charter and chapter sufficiently declare and Lawyers though unwillingly yet plainly confess that London and the rest had old Liberties and customes and that they are inheritable thereof and ought still to have the same so long and so far as not repugnant to Law which I conceive to be this Law and not any that have been made since against it And do not the several Charters of London and other Cities and Towns obtained since this Law declare further what those Liberties and Customs were And if the Kings learned Councel have consented that he should grant or Professors of the Law advised Londoners or any other Citizens to ask things repugnant to this Law and prevailed with both parties Have they not misled both parties And though they have so done often yet in this case doth not the Statute of the 19th of Henry 7. chap. 7. help the offendors with less danger than the forfeiture of their Customs and Liberties if they offend especially but in those points which their lawyers so much misadvised them to ask and the Kings him to grant Common-Pleas shall not follow Our Court Ca. 11. Common Pleas. but shall be holden in some place certain Before this Statute saith the Lord Coke Common-Pleas might have been holden in the Kings-Bench L. C. upon M.C. fol. 22 23. and all Writs returnable unto the same Bench And because the Court was holden coram Rege and followed the Kings Court and removable at the Kings will the Returns were Ubicumque suerimus in Angliâ whereupon many discontinuances ensued and great trouble of Jurors charges of Parties and delay of Justice for this cause this Statute was made c. And Pleas of the Crown were divided into high Treason Misprision of Treason Petty Treason Fellony c. and limited to this Court because contrà coronam dignitatem c. So that of these the Lord Coke saith the Common-Pleas cannot hold Plea But to shew that Common-Pleas may be holden in the Kings-Bench he saith That the King is out of this Statute and may sue in that Court Secondly if a man be in Custodia any other may lay upon him any Action of debt covenant or the like personal Action because that he that is in Custodia ought to have the priviledge of that Court And this Act taketh not away the Priviledge of any Court. Thirdly any Action that is Quare vi Armis where the King is to have a Fine may be sued in this Court Fourthly Replevins may be removed thither Fifthly saith the Lord Coke Albeit originally the Kings-Bench be restrained by this Act to hold Plea of any Real action yet by a mean they may as when removed by writ of Error from Common-Pleas thither for necessitie lest any party that hath right should be without remedie or that there should be a failer of Justice and therefore Statutes are alwaies to be expounded so that there should be no failer of Justice Expost and Quer. Do not the L. C. words viz. Before this Statute c. imply that after the Statute Common-Pleas ought not to be holden in the Kins-Bench nor all Writs be returnable into the same Beach Doth the Register or Natura brevium therefore shew any Writ for debt returnable to the Kings-Bench Doth not Fitz. H. natura brevium fol. 119. h. k. declare that there is no Writ in Law for debt but a Justicies which is a judicial Commission to the Sheriff to determine the matter Nè amplius indè clamorem audiamuus So that the Kings-Bench ought not to be troubled with the matter at all or if an Original returnable to the Common-Pleas Doth not that Original declare it self to be a Summons And doth not Mr Kitchen in his Ret. brev fol. 4. Tit. com bank declare that Summons Atachment and Distringas succestively distant fifteen days one after another is the onely Proces at Common Law The Kings-Beach and Common-Pleas ought to practise by the Common Law declared by Mag. Chart. and accord of the King and People declared and injoyned to be observed inviolable and immutable for ever Did ever any Judge of the Kings-Bench or Common-Pleas advise or consent to the making any Statute or Law to the contrarie being sworn to execute and maintain Mag. Chart. as anon shall appear all were or ought to be and was not perjured Did or doth any
should others that are not such indeed be sheltered to defend or countenanced to offend under that pretence And as for Members of any Court why ought not they to sue and be sued by their Atturneys in other Courts than their own since it is unnatural for any bodie to suffer any of its Members though never so corrupt to be put to any smart which it may avoid And may not nay ought not every just Court avoid such suits and the suspition of their injustice by entertaining them and proceeding therein by leaving them to the justice of other Courts of competent judicature as all other Courts do leave their Members to the mercy of the Courts at Westminster or may not nay ought not all Courts of judicature within their jurisdictions determine the causes of all such Members of the Courts at Westminster as shall be found and arrested within their jurisdictions notwithstanding any Writs of priviledge or other Writs to remove them before they be determined rather than the Courts at Westminster may send for the Members of every Court to be justified by them For who can say he hath ever found any justice there against any priviledged man And how many that be no Members of any Court there indeed are so countenanced as subordinate to some ill Member or other there and have their Law for nothing to bring Fees and gain to one or other of those courts out of honestmens purses and Estates against whom they can shew no colour of right any where but where they know they shall be favored and their Adversaries oppressed And how many men of good Estates have been and daily are not onely oppressed but undone by that means Thirdly for Trespass vi Armis Is it but a common-Plea and consequently proper to all courts of Record and rather to be tryed within that jurisdiction where the offence is committed than elsewhere And hath not the King his Fines imposed and levyed by the authority of all such courts as wel as by the Kings-Bench Fourthly for Replevins may they not as well be removed to and determined by the Common-Pleas as in the Kings-Bench Fifthly what meaneth the Lord by his words viz. Originally restrained but that the Kings-Bench is restrained from having any original Writs Returnable thither in Real Pleas And is it not as much restrained from originals in Personal Pleas that are as Common-Pleas as Real by this Statute Or by what other Statute Law or President is it inabled to have any originals returnable to it for debt when the Register and Ret. brevium have no such Presidents as aforesaid Is not therefore all the practice of the Kings-Bench for debt unjust and perjurious as aforesaid and moreover a faint Action c. as the prisoners for debt in that Court have lately set forth by their Petition to the Lord General and his Officers concerning this matter A Free-man shall not be ameirced for a small fault Caput 14. Ameirciaments but after the quantitie of the fault and for a greater fault after the manner thereof saving to him his contenement or Freehold And a Merchant shall be likewise ameirced saving to him his Merchandize And any other Villain than Durs shall be likewise ameirced saving his Wainage if he fall into Our mercy And none of the said Ameirciaments shall be assessed but by the caths of honest men of the Visionage Carls and Barons shall not be ameirced but by their Peers and after the quantitie of their trespass No man of the Church shall be ameirced after the rate of his spiritual benefice but after the rate of his lay teuement and the quantitie of his trespass A Free-man here Lord Cook upon Magna Charta fol. 27. hath a special understanding saith the L. C. and is taken for a Free-holder and this appeareth by this clause Salvo contenemento suo viz. Saving his Free-hold c. This Act extendeth to Ameirciaments not to Fines imposed by any Court of Justice c. Free-men are not intended to officers or ministers or officers of justice c. The Writ of Moderata misericordia giveth remedie to the Partie that is excessively ameirced c. Albeit the Law of England is a Law of mercy yet it is now turned to a shadow for where by the wisdom of the Law these Ameirciaments were instituted to deter both Domandants from unjust suits and Defendants from unjust defences which was the cause in former times of fewer suits c. If amerciaments were instituted to deter Plantiffs from unjust suits Expost and Quer. and Defendants from unjust defences and were the causes of fewer suits in former times how comes the Law turned to a shaddow in the Lord Cokes time when in the Kings-Bench and Cmmon-Pleas am erciaments were as frequent and greivous as in any other time and suits no fewer nay more numerous than before as Records of both Courts declare unless he means that all the Writs in the Register and Natura brevium both original and judicial whereby suits were determined amongst neighbours friendly at home became useless since Habeas corpus c. carried all to Westminster And that there injustice shaddowed under the name and habit of justice remunerated the litigious supporters of her being with such shares of her spoils that though she trebled their amerciaments she made them alwaies gainers unless when to satisfie their revenge rather than their purses they commuted their monies for counsels and countenances to undo the opposers of their malice whereby both parties became loosers and often ruined and injustice onely remained the gainer and increased her kingdom as the Divel doth his by such suitors and made more suits for Westminster than all the Courts of Errors and their Judges Lawyers and Attorneys there shall wear out while they live without extraordinary helps of their servants No town or Free-man shall be distrained to make Bridges or banks C. 15. Bridg. Banks but such as of old time and of right have been accustomed to make them in the time of King Henry our Grandfather No Banks shall be defended henceforth C. 16. Banks but such as were in defence in the time of King Henry our Grandfather by the same places and the same hounds as were wont to be in his time Both the next precedent chapters sufficiently expound themselves so that the Lord Coke speaketh no more to this matter but that the Mirrour saith That diver Rivers and their Banks were in his time appropriated and blocked up by divers persons to debar common-fishings which were wont to be used there in the time of King H. 2. And I believe there are many more so done more lately which Commissioners for Sewers shall do well to look to No Sheriff C. 17. Pleas Crown Constable Escheator Coroner or any other our Bailiffs shall hold Pleas of the Crown One mischief before this Statute L. Coke upon M. C. 30. was saith the Lord Coke That no Court but the Kings
chief Court could command Bishops to give their clergy to such as ought to have it another cause was That the life of a man ought to be tryed before Judges of learning and experience of the Laws of the Realm for Ignorantia Judicis est saepenumerò calamitas innocentis These are the reasons that the Lord Coke alledgeth why some Pleas of the Crown were taken from Sheriffs Castellans Escheators Coronors and Bailiffs under which names saith he are comprehended all inferiour Judges Justices and Courts of Justice albeit saith he it be provided by the 9th chap. of Mag. Charta That the Barons of the five Ports should have all their Liberties and Customs These general words saith he again must be understood of such Libertiâ—s and Customs as are not afterwards in the same Charter by express words taken away and assumed to the Crown Might not the Kings inferior Courts command ordinary Ministers to give men their Clergie Expost and Quer. And might not that serve before Magna Charta as it is usual since For seldom or never in our memories did Bishops themselves attend any court for that service and now should they be necessary onely for that imployment So the Kings Court would be onely to command them but if Bishops may be spared why may not that Court for that cause And if by this Charter the King resumed some Pleas of the crown from those that formerly had them dorâ—â— et follow that he resumed all Pleâ—â— from those that formerly had them And if under the name of Bailiffs be comprehended all Judges and Justices are not the Judges of the Common-Pleas and Barons of the Exchecquer so comprehended And are none of them of such learning and experience in the Laws of the Realm to try the life of a man as Judges of the Kings-Bench Or else why are they sent for Goal-deliveries aswel as Judges of the Kings-Bench are Was it not provided by the 9. chapter of Mag. Charta That London and other Cities Burroughs and Towns as well as the Barons of the five Ports and other Ports should have their Liberties and Free-Customs Are all these now resumed by this 17. chap Who can understand so Or what meaneth the L. C. by his riddles Shall Magna Charta contradict it self though the Lord C. would and doth here and elsewhere Are not Commissions of Oyer and Terminer usual for Tryal of mens lives where Judges of the Kings-Bench cannot reach or dare not go Doth not London and other Corporations execute their Charters by their Recorders when the Kings-Bench gives them leave and then do not the Judges of the Kings-Bench grant that such Judges may be as learned and experienced in the Laws as themselves for the Trying of mens lives Are not mens lives Tryable for matter of Fact and not of Law except Treasons that reach to thoughts Are not Jurors the Judges of matters of Fact What great learning or experience in Law is requisite for a Judge to pronounce the sentence of death where the verdict hath determined the life But how many true men have been hanged and thieves saved by Judges interposing and obtruding their pestifferous pretended learning and experience in the Laws between the weak consciences of ignorant Jurors and the truth which kind of Jurors they make Sheriffs return for such purposes when they may have such returned as know the Facts and have sounder learning and experience in express Law than themselves All Wears from henceforth be utterly put down by Thames C. 23. Wearâ— c. and Medway and throughout all England but onely by the Sea-coasts It was specially given in charge by the Justices in Eyre saith the Lord C. that all Juries should inquire of all such as Fished with wears and Dams L. C. upon M. C. fol. 38. and it appeareth saith he by Glandvil lib. 9. c. 11. That when any thing is unjustly occupied within the Kings demesne or obstructed in publick waies or Rivers turned off their right channels or Citie-streets built upon and in general as often as any nusance to the Kings holding or his High-way or to any Citie is committed That is a purpresture viz. an Inclosure whereby one in chroacheth or maketh that several to himself which ought to be common to all or many and every publick River or stream the Kings High way If Wears be nusances as I am sure they are throughout England Expost and Quer. and Wales and if Commissioners for Sewers and Justices of Peace for want of them be sufficiently authorized to reform such wrongs and do not because chief doers thereof or sharers in the unlawful gain made thereof themselves why not Justices in Eyer imployed to execute their charge for the general amendment thereof for the publick good One Measure of Wine shall be throughout our Realm C. 29. Measures c. and one measure of Corn viz. according to the Quarter of London and Haberjects that is to say two yards within the list and as it is of Weights so shall it be of Measures This Act concerning Measures L. Cokâ— upon M. C. fol. 49. and Weights that there should be one Measure and one Weight through England is grounded upon the Law of God Deut. 25. v. 13 14. And this by Authority of Parliaments hath been often enacted but never effected If Weights and Measures throughout England ought to be one Expost and Quer. and that not onely by the Law of God as the Lord C. instanceth but also by this Charter of Agreement between the King and the People Why did not the Lord C. being chief Justice of England sworn to do Law and Justice too and between King and People as partly before did and hereafter further shall appear he was or ought to have been see this point of Justice so highly required by the Law of God and so mutually agreed upon by the Kings of this Land and their Subjects duly executed Nothing shall henceforth be given for a Writ of Inquisition Ca. 16. Inquisition nor taken of him that prayeth the Inquisition of Life or Member but it shall be granted freely A Writ of Inquisition L. C. upon M. C. fol. 42. viz. De odio atia anciently called De bono malo c. which the Common-Law gave a man that was imprisoned though it were for the most odious cause for the death of a man for which without the Kings Writ he could not be bailed Yet the Law favouring the Libertie and Freedom of a man from Imprisonment c. until the Justices in Eyre should come at what time he was to be tryed he might sue out this VVrit directed to the Sheriff c. If a Writ De odio atia was given by the Common-Law Expost and Quer. to a man Imprisoned for the most odious cause even for the death of a man and if the Common-Law favoured the Liberty of a man Imprisoned so that he should be Bailed for such a Fact until
Justices in Eyre should Try him Why not such a Writ still Since odium which the Lord C. defineth to be hatred and atia malice and Prisoners for those causes are no scanter now than in former times And why not Justices in Eyre made since competent Judges by Commission without Writs to determine such matters which before they could but inquire of by Writs as the Lord C. saith elsewhere though he saith here to try them imployed for that service And now if it be Lawfull for a Judge of the Kings-Bench to determine a debt and to grant an Habeas Corpus for money to bring the Prisoner before him to put in Bail Why should he take money for the Writ and refuse sufficient Bail tendred after Oath made of their sufficiency without the plantiffs consent Nay after acceptation of the Bail Why refuse to File it No Free-man shall be taken Ca 2.9 No Free man c. or imprisoned or be disseised of his Freehold or Liberties or Free Customs or be Outlawed or Exiled or any way otherwise destroyed nor we shall not pass upon him but by lawfull judgement of his Peers or by the Law of the Land we shall sell to no man we shall denie or deferre to no man either Iustice or Right Free-man extends to Villains both Sexes Lord Coke upon Mag. Chart. Fol. 46 c. c. Vpon this Chapter as out of a root many fruitfull branches of the Law of England have sprung It containeth nine several Branches First That no man be taken or imprisoned but by the Law of the Land viz. The Common-Law Statute-Law or Customs of England c. Secondly No man shall be disseised viz. put out of his Freehold that is Land Livelihood or Liberties or free Customs such as belong to him by his free Birth-right unless it be by the lawfull judgement and verdict of his equals or by the Law of the Land that is to speak it once for all by the Due course and proces of the Law Thirdly no man shall be Outlawed or put off the Law viz. Deprived of the benefit of it unless he be Outlawed by the Law of the Land Fourthly No man shall be exiled c. unless according to the Law of the Land Fifthly No man shall be destroyed c. unless by verdict or according to the Law of the Land Sixthly No man shall be condemned c. but by the judgement of his equals or according to the Law of the Land Seventhly We shall sell to no man Justice or right Eighthly We shall denie no man Justice or right And Ninthly We shall deferre no man Justice or Right c. First Expost and Quer. If no man ought to be taken or imprisoned but by the Law of the Land viz. the Common-Law Statute-Law and Customs of England is it not cleared by our Expostulations before upon the 11. Chapter that Debtors are taken and imprisoned in the Kings-Bench contrarie to the Common-Law of England declared by Mag. Chart. contrarie to the chief Statute of England which is Mag. Char. and which the Lord Coke saith should live as was accorded by King and people for ever And contrarie to the Custom of England declared by Mag. Charta and also by the Lord Coke not to extend to the imprisonment of any Debtours but onely the Kings And are not Debtors other than the Kings so imprisoned as well elsewhere as in the Kings-Bench Secondly if no man shall be disseised viz. put out of his Freehold that is to say His Livelihood Liberties or Free-Customs such as belong to him by his Birth-right unless it be by the lawfull judgement and verdict of his equals or by the Law of the Land that is to say once for all by Due course and Proces of Law Are not Debtors disseised of their Livelihood Libertie and Freedom which belonged unto them as their Freehold by Birth right when they are imprisoned in London Westminster or elsewhere by Arrests and Actions for Debt whether due or not upon meer suggestions of Adversaries not so much to Judges as to Catch-pols without any judgement or verdict of their equals and without Due course or Proces of Law which should be Summons Attachment and Distringas before any Arrest as aforesaid Are they not taken in the Countrey from their Ploughs which are their Livelihood and their Countreys and their Freehold by Birth-right by vagant Bum-baylies and imprisoned there till they give bail to appear at Westminster and thence instead of being remanded home to their sweet Farm-houses large fields and industrious Agricultures are they not sent to stinking Goals close dungeons and idle Monk-cels whereby they are allowed little more ground to walk upon while they live than might serve them to lie under when they are dead Are not all the Corporations of England and their free-chosen Officers that should do them justice at home disseised of their Freeholds by Birth-right and Charters before and since Mag. Char. when they are prevented of the administration of justice in execution of their Offices to which they were sworn and heritable successively from their Ancestours by Custom long before Mag. Char. and since confirmed by the same and by Charters dated before and since by Certioraries Habeas Corpus c. before Judgement and pretence of Errors after and though never any proved or assigned yet the causes never remanded but detained at Westminster where the usual correction of pretended Errours is not by making any thing that is crooked straight but all that is straight crooked so that both Plantiffs and Defendants give their titles for lost in a mist commonly but he that hath the wrongfull possession and money holdeth it and he that hath the right and no money goes to his grave without it Are not all the People of England disseised of their Freehold Liberties Franchises and Free customs when they are deprived of that justice which they ought to have administred amongst them at home by virtue of the Kings Writs original for Enquiries and judicial for Determinations directed to Sheriffs of their own choise in their own Counties or Stewards of Hundreds and Court-Barons in their precincts where the Free-holders themselves are Judges themselves by ancient Common Laws and Customs of England before Mag. Char. and by it declared and confirmed unto them as aforesaid Can Writs of trespass executed for debt or Capiases grounded upon counterfeited Originals be construed by any Law to be due Proces of Law Thirdly Are men lawfully Outlawed upon Exigents for debt grounded upon a repealed Statute and are not all Debtors that are Outlawed so Outlawed Are men lawfully Outlawed that are Outlawed upon Exigents grounded upon Summonitus or Non est inventus counterfeitly returned by Attorneys who at the time of the return were no Sheriffs or competent officers and are not all or most Debtors and Trespassers that are Outlawed in London and Middlesex so Outlawed Are men lawfully Outlawed upon any Exigents that are Outlawed without the
Gratis and no Judge to take any Fee or Reward for any thing but of himself Eightly Do they not deny Justice when they deny such Writs Gratis Ninthly Do they not defer Justice when they detain poor men that are Bailable in Prison while they have sufficient men ready to tender for their Bail till they be forced to borrow money of other friends and to send far and stay long before they can receive it to loose their Bail in the interim and be forced to seek others by which delays their Goalers Fees increase and their Dyer Lodging and Expences draw charges which they might have saved to find Bread for their Wives and Children at home who perhaps are forced to fast by that means and to sell or pawn their Cows or Clothes for this money this damnable money thus extorted by a Judge for scribling his Infamous name to a Writ which doth but wrap a man and his cause faster in his clouches O Merciless Miserable Mercinary Judge that can neither give nor lend so little as his name to so much goodness in Policie if not in Charity to give a man Liberty to breath and take leave of his Home upon security of more advantage both to Court and Party than his imprisonment to return to his Pinfold Radamanth himself abhorreth such foolish covetousness Do they not defer Justice when by their Writs they cause Indictments Informations and just Suits Commenced in other competent and more proper Courts in all parts of the Kingdom to be removed to Westminster and there detained without any Tryal these 40 years How many thousands of Papists and heinous Malefactors that should have been punished in and by their Counties and Courts at home have by this means found Westminster and its Courts their onely Sanctuaries and Priviledges for none but Eminent Opulent Impenitent Offendours But is not Justice denyed when any Bailable man is denyed to be Bailed Or more when Bail is accepted upon Oath for its sufficiency and is denyed to be Filed and the Party so Bailed in Law detained Prisoner still at the Judges and Planriffs pleasures Briefly Is not the Administration of all the Law and Justice in England Ingrossed and Monopolized at Westminster where the Judges and Courts assume to be chief and do exercise a plenary jurisdiction over all others so that they suffer none but themselves to erre or to abuse Law nor any to accomplish any Justice or to reform any Errors but onely themselves who do pretend to correct all in their Exchecquer-Chamber where instead of correcting any they confirm their own which must be all as aforesaid Lastly is it unknown that they were wont to Buy their Offices of the Kings Servants and therefore to Sell their Under-Offices to their own Servants Attorneys c. And was not this the Buying and Selling of Justice that is yet unpaid for had need so to be Reformed Is it any reason that any should Buy Justice and not Sell it for gain by the Bargain Is it not Bought to that end Is it not to that end Judges neglect to give Attorneys their ancient Oath whereby they were wont to be Sworn to do no Falshood nor cause any to be done in their Courts and if they knew any to give knowledge thereof to the Judges c. that they should increase no Fees c. as you may read it at large in the latter end of the Attorneys Academy Is it not to the same end that Judges neglect to give all Plantiffs for Trespass their Oaths that the Trespass amounteth to 40 f or more or else let the Suit be Tryed in the Sheriffs Court at home according to the Statute of Glocester 6. Ed. 1. cap. 8. And is it not likewise to the same end they neglect to take security of all Plantiffs to prosecute all Actions with effect or pay Costs and Damages to the Defendants if they prove not their Issues which Judges anciently used to do and still ought before any Declaration be admitted or Plea required as saith the Mirror of Justice fol. 64. b. Is it not to the same end the Chancery neglecteth to take the Oath of all Complainants to make good their Bills in all points or pay Costs and Damages in case they fail and that before any Sub-poena be granted them according to the Statute 15. H. 6. cap. 4º And were not all well ended if all the end were that none were forsworn for Injustice but the chief Justices though comfortless for them to be so wretched as to have no associates is it not the worse for the People that their Ministers which ought to be Sworn as aforesaid are not Whereby old Attorneys without hazard of Perjury lead young Judges Sworn to what they know not to do what they should not as when so many subtil and lying Mercuries direct so many covetous and blind Cupids to shoot forth their arrows that they may stick them where they please and commend the shooters for hitting the marks that yield them the best sports of the gain The rest of this Charter I shall omit as aforesaid for the reasons aforesaid and shall conclude this with the beginning of another made in Confirmation Renovation and Perpetuation thereof by King Edward the first in the 28 year of his Reign as followeth viz. EDWARD by the Grace of God King of England Lord of Ireland Duke of Guyen To all Arch-Bishops c. greeting We have seen the great Charter of the Lord Henry our Father of the Liberties of England in these words And so beginneth the Charter as aforesaid and ondeth this and it together saying We ratifying and approving these gifts and grants aforesaid confirm and make strong the same for us and our Heirs perpetually and by tenor of these presents renew the same Willing and granting for Vs and Our Heirs that this Charter and all and singular its Articles for evermore shall be stedfastly and inviolably observed And if any Article in the same Charter conteined yet hithirto peradventure hath not been observed nor kept We will and by Our Authoritie Royal command from henceforth firmly they be observed These c. being witnesses Given at Westminster under Our own hand the 28 of March in the 28 year of Our Reign Again where the L. C. maintaineth the Statute of Marlebridge made 51 Hen. 3. cap. 5. which saith The great Charter shall be observed in all its Articles as well in such as pertain to the King as to others and that shall be enquired of before the Justices in Eyre in their Circuits and before Sheriffs in their Counties when need shall be and writs shall be freely granted against them that do offend bâ—fore the King or the Justices of the Bench or before Justices in Eyre when they come into those parts c. And the offendors when they be convict shall be grievously punished by our sovereign Lord the King in form above mentioned Expost and Quer. I shall but ask Why not Justices in
learn the Laws at their perils therefore If Ignorance were a plea shall knowledge be excused Professors of knowledg nay such as ingross that Profession from all others nay more such as are the onely causers and punishers of all other mens Ignorance It appeareth that this Sentence was Denounced in the time of King Hen. 3d. Now followeth another Denounced upon the said Confirmation made in the 25th year of King 8d 1o. viz. In the Name of the Father Excom 2. the Son and the Holy Ghost Amen Whereas our Sovereign Lord the King to the Honour of God and Holy Church 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 Cauterbury 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 injoyn all persons of what Estates 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 foresaid Arch-Bishop by our Authority in this Writing expressed do Excommunicate and accurse and from the Lord Jesu Christ and from all the company of Heaven and from all all the Sacraments of Holy Church do sequester and exclude Doth not the word Hereafter Expost Q. 1 extend to all successions and implie a Duration as long as there be a Mag. Charta and a breaker of it Do not Parliamentarie Oaths as well as their Laws include absents and futures as well as present If neither Oaths nor Excommunications be obligatorie to Atheists shall not their hands and seals bind them and their Heirs and Executors after them as common Bonds signed and sealed between private parties commonly do And more specially such as take upon them the sole Execution and Administration of the Laws Liberties and Freehold of England Shall not Charters of Parliament made signed sealed and confirmed by Authoritie of Parliaments bind all Subjects their Heirs Executors and Administrators as well and as far as private Charters of Feofments shall bind their Contractors and their Heirs c. Nay as far as Acts of Parliament can bind till repealed Is not every Court called Curia of the Care it ought to have to execute that charge it undertaketh and not to exact and raise Fees c. for discharging themselves of all their said Obligations to do even Justice to all men and to force men to pay those exactions even for doing injustice If all before written be not sufficient to discover that to be true and that therefore the Lives Lands Goods possessed by Judges Lawyers all or most of them are in the States power to seize into their hands to the use of the Common-wealth as aforesaid let us look a little further and we shall find more that may And first the Statute called Articuli super Chartas viz. Stat. of Artic. on the great Chart. A. 28. Ed. 1. Articles upon the great Charters made 28. of Ed. 1. viz. the same year as the Confirmation at large which consisteth of 38. chapters of Magna Charta was made proveth further as followeth For as much as the Articles of the great Chartâ—r of the Liberties of England Preamble and of the Charter of the Forrest the which King Henry Father to our Sovereing Lord the King granted to his People for the Weal of his Realm have not been heretofore observed ne kept and all because there was no punishment executed upon them which offended against the points of the Charters before mentioned Our Sovereign Lord the King hath again granted revived confirmed them at the requests of his Prelates Earls Barons assembled in His Parliament holden at Westminster in the â—8 year of his reign And hath ordained enacted and established certain Articles against all them that offend contrary to the points of the said Charters or any part of them or that in any wist transgress them in the form that ensueth viz. First of all That from henceforth the great Charter of the Liberties of England granted to all the Commonaltie of the Realm and the Charter of Forrest in like manner granted shall be observed kept maintained in every point in as ample wise as the King hath granted renued and confirmed them by this Chart. And that the Charter be delivered to every Sheriff of England under the Kings Seal to be read four times in the year before the people in the full County that is to wit the next County day after the Feast of S. Michael and the next County day after the Feast of the Circumcision and after Easter and after the Feast of S. John Baptist And for these two Charters to be firmly observed in every point and Article where before no remedy was at the Common Law there shall be chosen in every Shire Court by the Commonaltie of the same shire three substantial men Knights Justices of Oyer Term. or other lawfull wise and well disposed Persons to be Iustices which shall be assigned by the Kings Letters Patents under the great Seal to hear and determine without any other Writ but onely their Commission such plaints as shall be made upon all those that commit or offend against any point contained in the aforesaid Charters in the Shires where they be assigned as well in Franchises as without and as well for the Kings servants out of their places as for other And to hear the plaints from day to day without any delay and to determine them without allowing the delays which be at the Common Law And the same Knights shall have power to punish all such as shal be attainted of any Trespass done contrary to any point of the two said Charters where no remedy was before at the Common Law as before is said by Imprisonment or by Fine or by Amerciament according to the Trespass Nevertheless the King nor none of his Councel that made this Ordinance intend that by virtue hereof any of the foresaid Knights shall hold any manner of Plea by power for to admit any suit in such cases wherein there hath been remedy provided in times passed after the course of the Common Law by writ Nor also that the Common Law should be prejudiced nor the Ch. aforesaid in any point And the K. Willeth that if all three be not present or cannot at all times attend to do their Office in form aforesaid the King commandeth that two of them shall do it And it is Ordained that the Kings Sheriffs and Bailiffs shall be attendant to do the commandments of
the foresaid Iustices as far forth as appertaineth unto their Offices And besides these things granted upon the Articles of the Charters aforesaid The King of his special Grace for redress of the grievances that the people hath sustained by reason of his Wars and for the amendment of their Estate to the intern that they may be the more ready to do him service and the more willing to assist and aid him in time of need hath granted certain Articles the which he supposeth shall not onely be observed of his leige people but also shall be as much profitable or more than of the Articles heretofore granted One of the causes for the making this Act L. Coke f. 537 538 539. was saith the Lord Coke as in the Preamble is suggested that there was no certain punishment in many points established by the said Charters against the violators of the same which also by this Act saith he is remedied And the word People here saith he doth include all the Kings Subjects c. And again the word Pain ne fuit estable some read saith he Pain ne fuit execute and that is true in effect but the Original is Pain ne fuit estable that is no pain was set down certain And saith he fol. 539. This Act had but the force of a Charter until confirmed by this Parliament the 34th Ed. 1. And that these Charters should be read four times in the year in full County here is an order taken for the publishing And Ou remedie ne fuit avant c. is to be construed saith he where no Action was given by the Kings Writ to be pursued at Common Law c. Again here saith he for the better Execution of those glorious two Lights Magna Charta and Charta Forestae a new Court and new Justices were appointed c. Again saith he these clauses against the Kings Servants out of their places as well as others And to hear the Plaints without delay day by day and to determine them without admitting such delaies as be at Common Law was the first ground of the raising of the Justices called Trail Baston and their Courts so called in respect of their precipitate proceedings from day to day without such convenient leisure and time as Common Law allowed c. they in the end had such Authoritie as Justices in Eyer but albeit they had their Authoritie by Act of Parliament yet if they erred in judgement a Writ of Error did lie by the general Rule of the Common Law to reverse the Judgement in the Kings-Bench which being once resolved and known and their Jurisdiction fettered with so many limitations their Authoritie by little and little vanishâ—d Expost and Quer. Was there any certain Pain established by this Statute against the violators of Magna Charta other than by Commission in Eyer that the Justices might determine and punish the Offendors by Imprisonments Fines or Amerciaments according to the Trespass Ought not the Justices of the Kings-Bench to have so punished all such as were Indicted before Sheriffs or Justices in Eyer who had power to inquire and certifie them of all such Offendors and Offences against Magna Charta by the Statute of Marlebridge 51. Hen. 3d Doth not the Lord Coke say elsewhere That all Statutes ought to be construed so as that there should be no failer of Justice should not the Justices of the Kings-Bench have construed Magna Charta so Doth not the 14th chap. of Mag. Charta expresly direct That all offendors ought to be Amercied by their equals according to the quantitie of the Trespass Doth the Lord Coke speak truth when he saith this Statute gave any man Remedie for the certaintie of the punishment other than Magna Charta did before Was it not made more uncertain by referring it to the Justices in Eyers discretion whether Amerciaments Fyne or Imprisonment Doth he not confess plainly when he saith It is true in effect that the Pain was not Executed as some read instead of the Pain was not Established That it was the fault of the Justices of the Kings-Bench in not Executing the Pain of Amercying c. as they might and ought to have done was the cause of Impowering the Justices in Eyer who were but Enquirers before now to determine and punish such Offendors and Offences as they did forbear viz. The Kings Servants with whom by this time they of the Kings-Bench tampered for their Offices And was it not for the same cause the people were Declared to be choosers of Justices in Eyer And doth not the Lord Coke shew a great spight between himself and his brethren whom he would have to be ancient and the Justices in Eyer whom he calleth a new Court and new Justices And shew his Memory to be weak as his Envy was strong when he is forced to give himself the Lye either here or in his Exposition of the Stat. of Marlebridge where he saith They were then Justices and a court though but for Inquirie And upon the 23th Chap. of Magna Charta he saith they used before that time to give charge to all Juries concerning Wears c. Doth not the Lord Coke say fol. 235. That Bracton wrote before the making West 1. which was 3. Ed. 1 And doth not Bracton lib. 3. cap. 11 12 and 13. say Justices in Eyer were before his time Doth not Camden in his Britannia pag. 104. say They were Instituted by King Hen. 2 Doth not Hoveden in his Annais part poster fol. 113. b. confirm the same And add that K. Hen. 2. divided the Realm in six parts setled threâ— Justices in Eyer to every part whose names he relateth And doth not the Mirror of Justice lib. 3o. Tit. 1o. Justice in Eyer declare their power at large And as for their Election by the people doth he not say fol. 538. That Magna charta c. containeth the substance of all that is contained in these Articles And doth he not say in his Preamble That Magna Charta is an Act declarative of the ancient Laws and Customs of England before it and no introductive of any new And fol. 558. That of ancient time before the making of this Act all such Officers or Ministers as were instituted either for Preservation of the Peace of the County or for execution of Justice because it concerned all the Subjects of that County and they had a great interest in the due and just exercise of their places were by force of the Kings Writs in every several County chosen in full and open County by the Free-holders of the same County Again saith he So it was then and yet is of Coroners and so it was then and yet is of Knights of the Shire for Parliaments and of the Verdors of a Forest and likewise it was of ancient time of the Sheriff of the County and restored by this Act but this is altered by divers Acts of Parliament Now were not Justices in Eyer therefore
to the Party Perjurious in the Judges who admit such a Return and proceed upon it and as Illegal in the Sheriff that makes such a Return and as different from due Proces of Law as the other And do not those false Returns filed upon their Records make all their proceedings thereupon false and faint Actions as aforesaid And if all before written be not sufficient to make it appear to the world that they are not onely Forgers Perjurers and Anathema's themselves but also the onely causers of all others to be or be accompted the like And that their Lives Lands and Goods are in the immediate dispose of the present State by the judgements and confessions of their own mouths Behold their Oath which they voluntarily take when they assume their places whereby they binde themselves further before God and man as followeth viz. Ye shall Swear The Oath of the Kings Judges that well and lawfully ye shall serve our Sovereign Lord the King and his people in the office of Iustice and that lawfully ye shall Counsel the King in his business and that ye shall not councel nor assent to any thing which may turn him to dammage or disherison by any manner way or colour And that Ye shall not know the dammage or disherison of him whereof Ye shall not do him to be warned by Your self or by other And that Ye shall do even Law and Execution of right to all his Subjects rich and poor without having regard to any person And that You take not by Your self or by other privily nor apertly gift nor reward of gold not silver nor of any other thing which may turn to Your profit unless it be meat or drink and of small valure of any man that shall have any Plea or Proces hanging before You as long as the Proces shall be so hanging nor after the same cause And that Ye take no Fee as long as Ye shall be Iustice nor Robes of any may great or small but of the King himself And that Ye give none advise nor Counsel to no man great nor small in no case where the King is party And in case that any of what Estatt or Condition they be come before You in Your Sessions with Force and Arms or other ways against the Peace or against the form of the Statute thereof made to disturb Execution of the Common Law or to manace the people that they may not pursue the Law that Ye do their Bodies to be Arrested and put in prison and in case they be such that Ye may not Arrest them that Ye certifie the King of their names and of their Misprision hastily so that he may thereof ordain a covenable remedie And that You by Your selfe nor by other privily nor apertly maintain any Plea or quarrel hanging in the Kings Court or else where in the Countrie And that Ye denie to no man common right by the Kings Letters nor none other mans nor for none other cause and in case any Letters come to You contrarie to the Law that You do nothing by such lett but certifie the King thereof and go forth to do the Law notwithstanding the same Letters And that Ye shall do and procure the profit of the King and of his Crown with all things where Ye may reasonably do the same And in case Ye be from henceforth found in default in any of the points aforesaid Ye shall be at the Kings Will of Body Lands Goods thereof to be done as shall please him As God You help and all Saints Anno 18. Edward 3. Stat. 3. Expost and Quer. If Atheists can perswade Christians that this Oath was no binding for them that had taken it even the Wise Learned Reverend Judges Sages Scientissimous Interpreters of the Laws of England sufficient to keep them within the compass of their Oath Law and Knowledges Shall not Christians perswade themselves that it is a sufficient Confession Declaration and judgement of their own mouths that made it that their forfeitures viz. their Lives Lands and Goods in case of their breach of any point of this Oath are now immediately in the power of the State to dispose of to the publique use at their pleasures without any further Proces or proceedings in Law but onely to give Order and Warrant to Arrest the persons of such Offendors to stand to their censures and to Sequester their Estates and to divide them to the said use accordingly Did Lords ever use any more Law than their own Wills when they Sequestred and punished their villains Had Lords any more Law Right or Reason to Sequester and punish their villains at their own Wills but for that their villains did take their Lands upon conditions to do those services which they and their Lords agreed upon and gave their Lords their Oaths as their greatest bonds to perform those conditions or in case of breach to suffer their Lords to repossess their Lands with the forfeitures of their Goods which they gained and their Lives which they sustained upon the same Was the Oath of a Villain though made by Parliament to the end that Lords should be well served by their Slaves in their private and meanest Offices of as considerable consequence to be observed or in default thereof their forfeitures to be executed as the Oath of Judges made and Confirmed by several Parliaments to the end that the common-wealth should be well served by their Justices in their publike and most honourable if rightly served Offices of Judicature and administration of Justice Are not such Villains as dare incroach not onely upon their Lords Lands and Estates but also upon their Lives and Liberties dangerous transcendent Hyper-Prelatical Usurpers Are not such Usurpers intollerable mischiefs in a Common-wealth Who being sworn servants to the Common-wealth as by this Oath it appeareth the Kings Justices were make all the Common-wealth their servants to attend their Trains at Westminster at their pleasures And all Prisoners for Debt not onely their own Villains but also Villains to their Villainous Goalors and Slaves to their Slaves Are not the meanest of the Free-People of England interessed in the due execution of Justice to which these Judges were sworn as well to them as to Kings and consequently ought they not to be such Lords as dare and will take the forfeitures of such Villains as do them daily Injustice Is not this Oath a sufficient Evidence in it self that the takers of it have do dayly break it cause all others that have or do break it to do so likewise Since Kings and People have wholly referred themselves and their Estates not onely to the Justice of their Judges but also to their fatherly advertisements and admonitions whereby they ought not to suffer any that depend upon them to err through ignorance and they contrariwise admonish none not to offend but suffer and cause more to offend than willingly and wittingly would and so do for want of such admonitions much
more increase and enhance the Markets of their Justice by suffering no other Judges to admonish or Justifie any offendors at home and ingrossing all to themselves at Westminster or before such as they send to fripper for them in Assizes Goal-Deliveries and Nisi priusâ—s Have not some present Grafts of the old stock Judges of Assizes in possibility for the Countrey their Agents in Chancery procured several late Injunctions to be dissolved in Chancery without the privity of both parties whom they concerned to the end onely to beget work for them in the Assizes lest they should want better Did our late Judges lawfully counsel King Charls in his busines when they gave their Resolutions for him concerning the Ship-money Did they not assent to a thing or things that turned to his dammage and disherison and overturned him and his Posterity out of three Kingdoms and his life to boot when they assented to Ship money and Monopolies Did not the Kings Councel and other Serjeants and Lawyers draw if not plot all such Patents Got they not more by their Fees for their advise therein which were present pay than the King did by his reservations for interest in those Grants which are yet in Arrear Was any thing reserved to the King thereby but what his Councel learned thought fit and advised him to take and the Paâ—â—ntees to give Did not those Judges that had the keeping of both the Kings Seals assent to all those unlawfull things whatsoever they Sealed Briefly doth not this Oath in every point evidence the Judges at Westminster and their brethren to have been the chief betrayers of Kings and People in their chief trust to guide and hold both in the right way and did they not lead both wrong And thereby are the chief Authors of all the blood spilt and estates ruined in these three Kingdoms in and by these late Wars which were undertaken for Reformation onely of such deformities in Law and Government which you see they had power to keep in form by their lawfull judgements or admonitions to the right or not consenting to the wrong Do not our Records and History testifie that all the Civil Wars of England were alwaies undertaken for Reformation of Injustice evil Government and corrupt Lawyers that were alwaies the causers thereof by breaking and causing to be broken the Liberties of Magna Charta which the People sought alwaies to recover Were not Hugh D'Burgo Chief Justice of England Walter D'Lancton Lord Treasurer of England Brember Trisilian Bellknap Thorp c. examples of their times in that case If so few examples will not serve to make all Judges mend should not all such Judges be made examples to serve posterity to see that such evils are not necessary for Common-wealths Shall such Extrajudical Judges such lawless Lawyers c. as will not be tied by Oaths made in and by Parliaments Excommunications denounced by Authority of Parliaments Charters Signed Sealed and Confirmed in and by Parliaments nor by Acts Laws and Statutes made by full and free Parliaments be suffered to sit with Christians in Parliaments to make Laws Votes Oaths and other Obligations upon Christians which shall be none to themselves But let us see further what an other Act of Parliament saith to this Oath as ensueth viz. The Statut. 20. E. 3. Pream Letter Justice Edward by the Grace of God c. To the Sheriff of Stanford greeting Because that by divers complaints made to Vs We have perceived that the Law of the Land which We by Our Oath are bound to maintain is the less well kept and the execution of the same disturbed many times by maintenance and procurement as well in the Court as in the Countrey We greatly moved of Conscience in this matter and for this cause desiring as much for the pleasure of God and ease and quietness of Our Subjects as to save Our Conscience and for to save and keep Our said Oath by the assent of the Great men and other Wise men of Our Councel We have ordeined these things following viz. First Cap. 1. We have commanded all Our Iustices that they shall from henceforth do even Law and execution of right to all our Subjects rich poor without having regard to any person and without letting to do right for any letters or commandment which may come to them from Vs or from any other or by any other cause And in that any letters Letters writs or commandments come to the Iustices or to other deputed to do Law and right according to the usage of the Realm in disturbance of the Law or of the execution of the same or of right to the parties the Iustices and other aforesaid shall proceed and hold their Courts and Processes where the Pleas and matters be depending before them as if no such Letters Writs or commandments were come to them And they shall certifie Vs Our Councel of such commandments as be contrarie to the Law as before is said And to the intent that our Iustices should do even right to all people Justice in the manner aforesaid without more favour shewing to one more than to another We have done Our said Iustices to be sworn that they shall not from henceforth as long as they shall be in office of Iustice Fees Roabs take Fee nor Roabe of any man but of Our self And they shall take no gift nor reward by themselfs nor by other privily nor apertly of any man that hath to do before them by any way except meat and drink and that of small valure and that they shall give no counsel to a great man nor small in case where We be Partie or which do or may touch Vs in any point upon pain to be at Our will Bodie Lands and Goods to do thereof as shall please us in case they do contrarie And for this cause We have increased the Fees of the same our Iustices in such manner that it ought reasonably to suffice them Expost and Quer. Doth not the King say here He is bound by his Oath to maintain the Laws of the Land Doth not the Lord Coke say before That a King in his Politick capacitie cannot dye Did not or ought not all Kings of England take the like Oath as this King did Were they not therefore bound to maintain the Laws of England as well as he and to be advised and ruled by their Judges how to maintain them as the Oath of the Judges this Statute and others do manifest they were Are not Judges as Immortal as Kings in their Politick capacity Are they not bound by their Oaths not onely to maintain and execute the Laws of England against all men without regard of Persons but also to advise their Kings to maintain them and how so to do and to hinder or not consent with their Kings to break them Were not the maintenances whereof the King here complaineth and the procurements as well in Court as