when they had them best 2. And if any Statutes have been made by Us and our Ancestors or any Customs brought in contrary to them or any manner of Article contained in this present Charter We Will and grant that such manner of Statutes and Customs shall be void and frustrate for evermore CHAP. V. Pardon granted to certain Offenders MOreover we have pardoned Humphrey Bohun Earl of Hereford and Essex Constable of England Roger Earl of Norfolk and Suffolk Marshal of England and other Earls Barons Knights Esquires and namely John de Ferrariis with all other being of their Fellowship Consederacy and Bond and also of other that hold 20 l. Land in our Realm whether they hold of us in Chief or of others that were appointed at a day certain to pass over with us into Flanders the Rancour and Evil will born against us and all other Offences if any they have committed against us unto the making of this present Charter CHAP. VI. The Curse of the Church shall be Pronounced against the Breakers of this Charter ANd for the more assurance of this thing we will and grant that all Archbishops and Bishops for ever shall read this present Charter in Cathedral Churches twice in the Year and upon the Reading thereof in every of their Parish-Churches shall openly Denounce accursed all those that willingly do procure to be done any thing contrary to the tenour force and effect of this present Charter in any point and article In witness of which thing we have set our Seal to this present Charter together with the Seals of the Archbishops Bishops which voluntarily have sworn that as much as in them is they shall observe the tenour of this present Charter in all Causes and Articles and shall extend their faithful Aid to the keeping thereof c. The Comment THe word Tallage is derived from the French word Tailler to share or cut out a part and is Metaphorically used for any Charge when the King or any other does cut out or take away any part or share out of a Mans Estate and being a general word it includes all Subsidies Taxes Tenths Aids Impositions or other Charges whatsoever The word Maletot signifies an Evil that is an unjust Toll Custom Imposition or Sum of Money The occasion of making this Statute was this King Edward being injured by the French King resolves to make War against him and in order thereunto requires of Humphrey le Bohun Earl of Hereford and Essex and Constable of England and of Roger Bigot Earl of Norfolk and Suffolk and Marshal of England and of all the Earls Barons Knights Esquires and Freeholders of 20 l. Land whether they held of him in Capite to contribute towards such his expedition that is to go in Person or find sufficient Men in their places in his Army which the Constable and Marshal and many of the Knights and Esquires and especially this John Ferrers taking part with them and all the Freemen stoutly denyed unless it were so ordained and determined by common consent in Parliament according to Law And it seems the contest grew so hot that Baker's Chronicle Folio 99. relates a strange Dialogue that pass'd between them viz. That when the Earl Marshal told the King That if his Majesty pleased to go in Person he would then go with him and march before him in the Van-Guard as by right of Inheritance he ought to do but otherwise he would not stir the King told him plainly he should go with any other though he went not in Person I am not so bound saith the Earl neither will I take that Journey without you The King swore By God Sir Earl you shall either go or Hang And I swear by the same Oath said the Earl I will neither go nor Hang. And so the King was forc'd to dispatch his expedition without them And yet saith my Lord Coke altho the King had conceived a deep displeasure against the Constable Marshal and others of the Nobility Gentry and Commons of the Realm for denying that which he so much desired yet for that they stood in defence of their Laws Liberties and free Customes the said King Edward the First who as Sir William Herle Chief Justice of the Common-Pleas who lived in his time and served him said in the time of King Edward the 3d. was the wisest King that ever was did after his return from beyond the Seas not only consent to this Statute whereby all such Tallages and Impositions are forbidden for the future but also passes a Pardon to the said Nobles c. of all Rancour Ill-will and Transgressions If any they have committed which last words were added lest by acceptance of a Pardon of Transgression they should implicitely confess that they had Transgressed so careful were the Lords and Commons in former times to preserve the Ancient Laws Liberties and free Customs of their Country But note these words Si quas fecerint If any they have committed are left out in all the Printed Books of Statutes but they are in this Statute recited by Coke in his second Book of Institutes Fo. 535. and specially noted which he would never have done if it had not been so in the Rolls And since 't is probable them may be many more like Omissions Mistakes or Falsifications crept into the Prints and for that the Râ—â—â—â—d not the printed Satute-Book varying from the Records is the Law It were to be wished that all the Rolls of Acts of Parliament were carefully by some Persons of Learning and Integrity view'd and Compared with the Prints and notice taken of all such Varâ—â—tions and of Errors committed in the Translations and of any Statutes of a publick Import if in force that were never printed and the same to be made publick Anno 25 Edw. 3. CAP. II. A Declaration what Offences shall be adjudged Treason WHereas diverse opinions have been before this time in what Case Treason shall be said and in what not 2. The King at the Request of the Lords and of the Commons hath made a declaration in the manner as hereafter followeth that is to say When a Man doth Compass or Imagine the Death of our Lord the King or of our Lady his Queen or of their eldest Son and Heir 3. Or if a man do violate the Kings Companion or the Kings Eldest Daughter unmarried or the Wife of the Kings Eldest Son and Heir 4. Or if a Man do Levy War against our Lord the King in his Realm or be Adherent to the Kings Enemies in his Realm giving them Aid and Comfort in the Realm or elsewhere and thereof be provably Attainted of open Deed by the People of their Condition 5. And if a Man Counterfeit the Kings Great or Privy-Seal or his Money 6. And if a Man bring false Money into this Realm Counterfeit to the Money of England as the Money called Lushburgh or other like to the said Money of England knowing the Money to be false to Merchandise
great or highly in favour at Court but sooner or later they hit him and it proved his Ruine Take a few examples King Edw. the second dotes upon Pierce Gaveston a French Gentleman he wastes the Kings Treasures has undeserv'd Honours conserred on him affronts the antient Nobility The Parliament in the beinning of the Kings Reign Complains of him he is banisht into Ireland The King afterwards calls him home and marries him to the Earl of Glocesters Sister the Lords complain again so effectually that the King not only consents to his second Banishment but that if ever he returned or were found in the Kingdom he should be hâ—ld and proceeded against as an Enemy to the State Yet back he comes and is received once more by the King as an Angel who carries him with him into the North and hearing the Lords were in Arms to bring the said Gaveston to Justice plants him for safety in Scarborough Castle which being taken his Head was Chopt off In King Richard the Seconds time most of the Judges of England to gratifie certain corrupt and pernicious Favourites about the King being sent for to Nottingham were by Perswasions and Menaces prevailed with to give false and Illegal Resolutions to certain questions proposed to them declaring certain matters to be Treason which in truth were not so For which in the next Parliament they were called to Account and Attainted and Sir Robert Tresilian Lord Chief Justice of England was drawn from the Tower through London to Tyburn and there Hanged As likewise was Blake one of the Kings Council and Vske the Under-Sheriff of Middlesex who was to pack a Jury to serve the present Turn against certain Innocent Lords and others whom they intended to have had taken off and five more of the Judges were Banisht and their Lands and Goods forfeited And the Archibishop of York the Duke of Ireland and the Earl of Suffolk three of the Kings Evil Councellors were forced to fly and died miserable Fugitives in Forreign Parts In the beginning of King H. the 8ths Reign Sir Richard Empson Knight Edmond Dudley one of the Barons of the Exchequer having by colour of an Act of Parliament to try People for several Offences without Juries committed great oppressions were proceeded against in Parliament and lost their Heads In the 19 Year of the Reign of King James at a Parliament holden at Westminister there were shewn saith Bakers Chron. Fo. 418. two great Examples of Justice which for future Terrour are not unfit to be here related one upon Sir Giles Mompesson a Gentleman otherwise of Good parts but for practising sundry abuses in erecting and seting up new Inns and Ale-houses and exasting great Summes of Money of people by pretence of Letters Patents granted to him for that purpose was sentenced to be degraded from his Knighthood and disabled to Bear any Office in the Common-Wealth though he avoided the Execution by Flying the Land But upon Sir Francis Mitchel a Justice of Peace of Middlesex and one of the Chief Agents the sentence of Degradation was Executed and he made to ride with his face to the Horse tail through the City of London The other Example was of Sir Francis Bacon Viscount St. Albans Lord Chancellour of England who for Bribery was put from his place and Committed to the Tower In King Charles the firsts time most of the Judges that had given their opinions contrary to Law in the Case of Ship-Money were call'd to Account and forced to Fly for the same And in the 19th year of our present Sovereign the Earl of Clarendon Lord Chancellour of England being questioned in Parliament and retiring thereupon beyond the Seas was by a special Act Banished and Disabled In a word it was well and wisely said of that excellent Statesman Sir William Cecil Lord Burleigh and High Treasurer of England That he knew not what an Act of Parliament might not doe which Apothegm was approved by King James and alleadged as I remember in one of his published Speeches And as the Jurisdiction of this Court is so transcendent so the Rules and Methods of Proceedings there are different from those of other Courts For saith Cook 4. Instit fo 15. As every Court of Justice hath Laws and Customs for its Direction some by the Common Law some by the Civil and Canon Law some by Peculiar Laws and customes c. So the High Court of Parliament suis propriis Legibus Consuetudinibus Subsistit Subsists by it's own Peculiar Laws and Customs It is Lex Consuetudo Parliamenti the Law and Custom of Parliament that all weighty matters in any Parliament moved concerning the Peers or Commons in Parliament assembled ought to be determined adjudged and discussed by the Course of the Parliament and not by the Civil Law not yet by the Common Laws of this Realm used in more Inseriour Courts Which was so declared to be Secundum Legem Consuetudinem Parliaments according to the Law and Custom of Parliament concerning the Peers of the Realm by the King and all the Lords Spiritual and Temporal and the like pari ratione for the same reason is for the Commons for any thing moved or done in the House of Commons and the rather for that by another Law and Custom of Parliament the King cannot take notice of any thing said or done in the House of Commons but by the Report of the House of Commons and every Member of the Parliament hath a Judicial place and can be no Witnâ—â—â— And this is the Reason that Judges ought not to give any opinion of a Matter of Parliament because it is not to be decided by the Common Laws but Secundum Legem Consuetudinem Parliamenti according to the law and Custom of Parliament And so the Judges in diverse Parliaments have confessed And some hold that every offence Committed in any Court panishible by that Court must be punished proceeding Criminally in the same Court or in some higher and not any Inferiour Court and the Court of Parliament hath no higher Thus Cook Great complaints have been made about a late House of Commons sending for some Persons into Custody by their Serjeant at Arms but certainly they did no more therein then what their Predecessiors have often done every Court must be supposed Armed with a power to desend it self from Affronts and Insolencies In all Ages when the House has appointed particular Committees hath it not been usual to order that they shall be impower'd to send for Papers Persons and Records But to bring Men to a sober Consideration of their Duty and Danger I shall give a few Instances besides those before mentioned of what the House of Commons hath done in former Ages 1. Anno 20. Jacobi Doctor Harris Minister of Bletchingly in Surry for misbehaving himself by Preaching and otherwise about Election of Members of Parliament upon complaint was called to the Bar of the House of Commons and there as a Delinquent on his Knees
five Year of our Reign Sententia lata super Chartas The Sentence of the Clergy against the Breakers of the Articles above written IN the Name of the Father the Son and the Holy Ghost Amen Whereas our Sovereign Lord the King to the Honour of God and of Holy Church and for the common profit of the Realm hath granted for him and his Heirs for ever these Articles above written Robert Archbishop 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 Sov L. the K. in all points And all those that in any point do Resist or break or in any manner hereafter procure Counsel or any ways 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 Body of our Lord Jesu Christ and from all the Company of Heaven and from all the Sacraments of Holy Church do Sequester and exclude NOTES It may be observed that this Curse is left out of our late Printed Statute-Book though inserted at large in that Printed in three Volumns in Queen Elizabeth's days Anno. 1557. There is likewise another like dreadful but more full and express Curse Solemnly pronounced before in the time of King Henry 3d. which being also omitted in our Modern Statute-Book I shall add here for the Readers satisfaction The Sentence or Curse given by the Bishops against the Breakers of the Great Charter IN the Year of our Lord One thousand two hundred and fifty three the Third day of May in the great Hall of the King 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 Cornwal his Brother Roger Bigot Earl of Norfolk and Suffolk Marshal of England Humphry Earl of Hereford Henry Earl of Oxford John Earl Warren and other Estates of the Realm of England William Boniface by the Mercy of God Arch-bishop of Canterbury Primate of all England F. of London H. of Ely S. of Worcester E. of Lincoln W. of Norwich G. of Hereford W. of Salisbury W. of Durham R. of Exeter M. of Carlile W. of Bath E. of Rochester T. of Saint Davids Bishops apparelled in Pontificials 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 and Charter of the Forrest have denounced the Sentence of Excommunication in this Form By the Authority of Almighty 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 Forr est granted by our Lord the King to Archbishops 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 Council do make Statutes or observe them being made and that bring in Customs or keep them when they be brought in against the said Liberties or any of them the Writers the Law-makers Councellors and the Executioners of them and all those that shall presume to judge against them All and every which Persons before mentioned that wittingly shall commit any of the Premises let them well know that they incurr the foresaid Sentence ipso facto i. e. upon the Deed done And those that Commit ought ignorantly and be admonished except they reform themselves within 15 dayes 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 said Sentence and with the same Sentence we burden all those that presume to disturb the Peace of our Soveraign Lord the King and of the Realm To the perpetual Memory of which thing we the foresaid Prelates have put our Seals to these presents So Zealous were our Ancestors to preserve their Liberties from encroachments that they employed all the strength of humane Policy and Religious Obligations to secure them intire and inviolate And since this Act is still in as much force as the Act against Conventicles I cannot fadome the Reason why our Prelates should not as well hold themselves obliged twice a Year to accurse the Infringers thereof as to Prosecute Protestant Dissenters However we may note that by this Statute Chap. 2. it is expresly provided that if any Judgments be given from that time forwards against any of the points of Magna Charta they shall be annull'd and holden for nought therefore Quaere whether the conviction of Protestant Dissenters by a Justice and spoiling them of their goods without any Trial and Conviction by a Jury which is expresly against the 29 Chapter of Magna Charta ought not to be taken notice of and redress'd and the original Promoters thereof to be Curs'd by my Lords the Bishops as aforesaid A Statute made Anno 34 Edw. 1. commonly called de Tallageo non Concedendo CHAP. I. The King or his Heirs shall have no Tallage or Aid without consent of Parliament NO Tallage or Aid shall be taken or Levied by Us or our Heirs in our Realm without the good Will and Assent of Arch-Bishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land CHAP. II. Nothing shall be purveyed to the Kings Vse without the Owners consent NO Officer of ours or of our Heirs shall take Corn Leather Cattel or any other Goods of any manner of Person without the good Will and Assent of the Party to whom the Goods belonged CHAP. III. Nothing shall be taken of Sacks of Wooll by Colour of Maletot NOthing from henceforth shall be taken of Sacks of Wooll by colour or occasion of Maletot CHAP. IV. All Laws Liberties and Customs confirmed WE Will and Grant for Us and our Heirs That all Clerks and Lay-men of our Land shall have their Laws Liberties and free Customs as largely and wholly as they have used to have the same at any time
or make payment in deceit of our said Lord the King and of his People 7. And if a Man Slay the Chancellor Treasurer or the Kings Justice of the one Bench or the other Justices in Eyre or Justices of Assize and all other Justices Assigned to Hear and Determine being in their Places doing their Offices 8. And it is to be understood that in the Cases above rehearsed that ought to be judged Treason which extends to our Lord the King and of his Royal Majesty 9. And of such Treason the Forfeiture of the Escheats pertaineth to our Lord as well of the Lands and Tenement holden of other as of himself 10. And moreover there is another manner of Treason that is to say when a Servant slayeth his Master or a Wife her Husband or when a Man Secular or Religious slayeth his Prelate to whom he oweth Faith and Obedience 11. And of such Treason the Escheats cught to pertain to every Lord of his own Fee 12. And because that many other like Cases of Treason may happen in time to come which a man cannot think nor declare at this present time it is Accorded That if any other Case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without any going to Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be judged Treason or other Felony 13. And if percase any Man of this Realm Ride Armed covertly or secret with Men of Arms against any other to Slay him or Rob him or Take him or Retain him till he hath made Fine or Ransome for to have his deliverance it is not the mind of the King nor his Council that in such Case it shall be judged Treason but shall be judged Felony or Trespass according to the Laws of the Land of old time used and according as the Case requireth 14. And if in such Case or other like before this time any Justices have judged Treason and for this cause the Lands and Tenements have come into the Kings hands as forfeit the chief Lords of the Fee shall have the Escheats of the Tenements holden of them whether that the same Tenements be in the Kings hands or in others by Gift or in other manner 15. Saving always to our Lord the King the Year and the Waste and the sorfeitures of Chattels which pertain to him in the Cases above named 16. And that the Writs of Scire Facias be granted in such Case against the Land-Tenants without other Original and without allowing any Protection in the said Suit 17. And that of the Lands which be in the Kings hands Writs be granted to the Sheriffs of the Counties where the Lands be to deliver them out of the Kings hands without delay The Comment TReason is derived from Trabir which signifies Treacherously to betray when it concerns the Government and the Publick 't is called High Treason but against particular Persons as a Wife killing her Husband a Servant his Master c. it is Petty Treason High Treason in the Civil Law is called Crimen Laesae Majestatis a Crime wronging Majesty but in our Common-Law-Latine Alta proditio and in an Indictment for this offence the word Proditorie must be in Before the making this Act so many things were charged as High Treason That no Man knew how to behave himself Now by this Statute the particulars of that Grand Crime are reckoned up and all others excluded till declared by Parliament And the settling of this Affair was esteemed of such Importance to the Publick-Weal That the Parliament wherein this Act passed was called long after Benedictum Parliamentum the Blessed Parliament The substance of this Statute is branched out by my Lord Cook 3d. part of Instit. Fol. 3. into six Heads viz. The first concerning Death by compassing or imagining the death of the King Queen or Prince and declaring the same by some Overt Deed. By killing and murdering of the Chancellor Treasurer Justices of either Bench Justices in Eyre Justices of Assize Justices of Oier and Terminer In their Places doing their Offices The second is to Violate that is to Carnally know the Queen the Kings Eldest Daughter unmarried the Princes Wife The third is Levying War against the King The fourth is Adhering to the Kings Enemies within the Realm or without and declaring the same by some overt Act. The fifth is Counterfeiting of the Great the Privy Seal or the Kings Coin The sixth and last by bringing into this Realm Counterfeit Mony to the likeness of the Kings Coin Now as to the particular Exposition of the several parts of this Statute 1. When a man doth compass c. in the Original it is Quant Home which extends to both Sexes but one that is Non compos mentis or an Infant within the Age of discretion is not included but all Allens within the Realm of England being thereby under the Kings Protection and owing a Local Allegiance if they commit Treason may be punisht by this Act but otherwise it is of an Enemy 2. To compass and Imagine Is to contrive design or intend the death of the King but this must be declared by some Overt Act. But declaring by an open Act a design to Depose or Imprison the King is an Over Act to manifest the compassing his death For they that will depose their King will not stick to Murder him rather than fail of their end and as King Charles the First excellently observed and lamentably experienced There are commonly but few steps between the Prisons and the Graves of Princes 3. By the word King is intended 1. A King before his Coronation as soon as ever the Crown descends upon him for the Coronation is but a Ceremony 2. A King de Facto and not de Jure is a King within this Act and a Treason against him is punishable thô the Right Heir get the Crown 3. A Titular King as the Husband of the Queen is not a King within this Act but the Queen is for the word King here includes both Sexes 4. What is to be understood by the Kings Eldest Son and Heir within this Act I answer 1. A second Son after the death of the first Born is within the Act for he is then Eldest Secondly The Eldest Son of a Queen Regnant is as well within the Statute as of a King Thirdly The Collateral Heir Apparent or Presumptive is not within this Statute Roger Mortimer Earl of March was in Anno Dom. 1487. 11 Rich. 2. Proclaimed Heir Apparent Anno 39. Hen. 6. Richard Duke of York was likewise Proclaimed Heir Apparent and so was John de la Poolen Earl of Lincoln by Rich. 3. And Henry Marquess of Exeter by King Henry the 8. But none of these or the like are within the Purview of this Statute saith my Lord Coke 3 Instit fol. 9. 5. Note Whereas in the Printed Statute-Books it is there