Page images

(ift.) In that no Miin shall be amerced, but according to the Offence and they have fined each forty Marks.

(2.) They were root merced by any fury, but at the Will of an in. cons Bench.

Besides, there is no Law against the Hat; and where there is no Law, there can be no Transgreffion, and consequently no legal Amercement or Fine, 9 H. 3. Chap. 14. -But how the Prisoners were tra panned into it, is moft ridiculous on the fide of the Contrivers, that finding their Hats off, would have then put on again by their Officers, to fool the Prisoners, with a trial of putting them off again ; which childish Conceit not being gratified, they Fined them the Forty Marks 2piece.

7thly, Instead of accepting their Verdict as good in Law, and for the true decision of the matter, according to the Great Charter (that constitutes them proper Judges, and which bears them out, with many other good Laws, in what they agreed to, as a Verdiet) the Court did most illegally and tý. raonically Fine and Imprison them, as in the Tryal was erpreisid : And that notwithstanding the late juft Resentment of the Houfe of Commons, in Judg Keeling's Cafe, where they resolv'd, that the precedent and practice of Fining and Impriloning of furies, for their Verdiets, were illegal. And here we must needs observe two Things,

First, That the Fundamental Laws of England cannot be more flighted and contradi&ted in any thing (next Englishmen's being quite destroy'd') than in not luffering them to have that equat medium, or just way of tryal, that the Tame Law has provided, which is by a 'yury.

Secondly, That the late Proceeding of the Court at the OldBlily, is an evident Demonftration, that faries are now but mere Formality, and that the partial Charge of the Bench muf be th: Verdict of the Jury; for if ever a Rape were attempted a the Consciences of any fury, it was there. And indeed the Ignorance of Jurors of their Authority by Law, is the only Realon of their unhappy cringing to the Court, and being scared in to an Anti-Conscience Verdist, by their lawless Threats.

But we have lired to an Age, fu devoid of all Humanity and Reason, as well as Faith and Religion, that some fick nor to turn Butchers to their own Privileges, and Conspirators against their own Liberties. For however, Magna Ch.trta had once the Rept

. tation of a sacred unalterable Law, and few hardned enough to incur and hear the long Curse that attended the Violaters of it; yet it is frequently objected now, that the Benefits there delign'd are but Temporary, and therefore liable to alteration, usher Statutes are. What Oame fuch Perjons play it, may be liruely


[ocr errors]
[ocr errors]

read, in the attempts of Dionyfius, Phalaris, Lor, which would have Will and Power be the People's Law.

But that the Privileges due to English-men by the Great Charter of England, have their Foundation in Reason and Law; and that those new Cassandrian ways, to introduce Will and Power, deserve to be detested by all Persons professing Sense and Honesty, and the leaft Allegiance to our Engli) Government; we shall make appear from a sober Confideration of the Nature of chofe Privileges contain't in that Charter.

1. The Ground of Alteration of any Law in Government where there is no Invasion) should arise from the universal discommodity of its continuance; but there can be no difprofit in the discontinuance of Liberty and Property, therefore there can be ne just ground of alteration.

2. No one English-man is born Slave to another, neither has the one a right to inherit the fweat and benefit of the other's

labour (without consent ;) therefore the Liberty and Property of an i English-man cannot reasonably be at the Will and Beck of another, let [ his Quality and Rank be never so great.

3: There can be nothing more unreasonable than that which is partial; but to take of any ( which are natural Rights) without breaking the Law of Nature (and not. of Will and Power) is manifestly partial, and therefore unreasonable.

4. If it be just and reasonable for men to do as they would be done by, then no sort of Men should invade the Liberties and Properties of other Men, because they would not be served so themselves.

5. Where Liberty and Property are destroy'd, there must always be a State of Force and War; which however pleasing it may be unto the Invaders, it will be efteenid intolerable by the Invaded; who will no longer remain subject in all humane Probability, than while they want as much Power to free themselves, as their Adversaries had to enllave them: The troubles, bazards, ill-consequences, and illegality of fucb Attempts, as they have declined by the most prudent in all Ages; so have they proved most uneasy to the most Savage of all Nations, who first or lajt have to a inighty Torrent freed themselves, to the due punijliment and great infamy of their oppreffors : Such being the advantage, fuch the disadvantage which neceffarily do attend the fixation and removal of Liberty and Property.

We shall proceed to make it appear, that Magna Charta ( as recited by us) imports nothing less than their preservation.

No Free-man Mall be taken, or imprisoned, or be dijeized of his Freebold, or Liberties, or free Customs, or be Out-law'd," or Exild, or any


2 2

other ways destroy'd; nor we will not pass upon him, nor condemn bim, but by lawful judgment of his Peers, &c.

A Free-man Mall not be amerced for a small fault, but after the man. ner of the fault'; and for a great fault, after the greatness thereof; and none of the said Amer cement shall be assessed, but by the Oath of good ånd lawful Men of the Vicinage.

First, It asserts English-men to be free ; that's Liberty.
Secondly, That they have Free-holds ; that's Property.

Thirdly, That Amercement, or Penalties, should be proportioned to the faults committed; which is Equity.

Fourthly, That they shall lose neither, but when they are adjudged to have forfeited them, in the jadgment of their honeft Neighbours, according to the Law of the Land; which is lawful Judgment.

It is easy to discern to what pass the Enemies of the Great Charter would bring the People.

First, They are now Free-men; but they would have them Slaves.

Secondly, They have now Right unto their Wives, Children, and Estates, as their undoubted Property ; but such would rob them of all.

Thir lly, Now no Man is to be amerc'd, or punih'd, but sutably to his fault; whilst they would make it futable to their revengeful minds.

Fourthly, whereas the Power of Judgment lies in the Breasts and Consciences of twelve honeft Neighbours; they would have it at the discretion of mercenary Judges. To which we cannot chuse but add, That such Discourses manifestly frike at tbis present constitution of Government ; for it being founded upon the Great Charter (which is the Antient Common Law of the Land) as upon its beft Foundation, none can design the cancelling of the Charter, but they must necessarily intend the extirpation of the English Government : For where the Cause is taken away, the Effect must consequently cease. And as the Restors tion of our antient English Laws, by the Great Charter, was the soveraign Balsam which cured our former Breaches, so doubtless will the continuation of it prove an excellent prevention to any future diftur bances.

But some are ready to object, That the Great Charter confifting as well of Religious as Civil Rights; the former having receiv'da Alteration, there is the same reason why the latter may have the lile.

To which we answer, That the reason of Alteration cannot be the same; therefore the Consequence is false : The one being Matter of Opinion, about Faith and Religious Worthip, which is as various as the unconstant Apprehentions of Men:


[ocr errors][merged small][ocr errors]

but the other is Matter of fo immutable Right and Justice,
that all Generations (however differing in their Religious
Opinion) have concenter'd and agreed to the certainty, equity,
and indispensable neceffity of preserving these Fundamental Laws; so
that Magna Charta hath not risen and fallen with the differing
religious Opinions that have been in this Land, but have ever
remain’d as the stable Right of every individual English-man, purely
as an English-man. Otherwise, if the Civil Privileges of the Peo-
ple had fallen with the pretended Religious Privileges of the
Popish Tyranny, at the first Reformation (as must needs be fuga
gested by this

Obje&tion ) our Cafe had ended here, That we
had obtain'd a Spiritual Freedom at the cost of a Civil Bondage, which
certainly was far from the intention of the firit Reformers,
and probably an unseen Consequence, by the Obje&tors, to
their idle Opinion.

In short, there is no time in which any Man may plead the Necessity of such an Action, as is unjuft in its own Nature, which he must unavoidably be guilty of, that doth deface or cancel that Law by which the Justice of Liberty and Property is confirm'd and maintain’d to the People. And consequently, that no person may legally attempt the Subversion, or Extenuation of the furce of the Great Charter, we shall proceed to prove from Inftan, ces out of both.

ift. Any Judgment given contrary to the said Charter, is to be undone, and holden for nought. 25 Edw. 1. Chap. 2.

2dly. Any that by Word, Deed, or Counsel, go contrary to the said Charter, are to be Exconimunicated by the Bisloops: And the Archbishops of Canterbury and York, are bound to compel the other Bj. Shops to denounce Sentence accordingly, in case of their remisness, or negle&t; which certainly hath relation to the State, rather than the Church ; Since there was never any necessity of compelling the Bishops to denounce Sentence in their own Case, tho frequently in the Peoples. 25 Edw. I. Chap. 4.

3dly, That the Great Charter, and Charter of Forest, be holden and kept in all Points; and if any Statute be made to the contrary, that it shall be holden for nought. 42 Edw. 3. 1. Upon which cosk, that famous English Lawyer, said, That albeit Fudgments in the King's Court are of high regard in Law, and Judicia are accounted as Juris Dicta : Yet it is provided by A&t of Parliament, That if any Judgment be given contrary to any of the Points of the Great Charter, it shall be holden for nought.

He further faith, That upon the Statute of the 25th Edw. I. Chap. 1. That this Great Charter, and the Charter of Forest, are properly the Common Law of this Land, or the Law is common to all the People thereof.


[ocr errors]
[blocks in formation]

4thly, Another Statute runs thus: If any force.come to disturb the Execution of the Common Law, ye shall cause their Bodies to be ar. rested, and put in Prison : Te shall deny no Man right by the King's Letters, nòr counsel the King any thing that may turn to his damage, ci disherifon, 18 Edw. 3. Chap. 7. Neither to delay Right by the great and little Seal. This is the Judg's Charge and Oath. 2 Edw.

.3: Chap. 8. 14 Edw. 3. 14. 11 R. 2. Chap. 1o.

. 5thly, Such care hath been taken, for the preservation of this Great Charter, that in the 25th of Edw. 1. it was enacted, That Commissioners should issue farth, that there sliould be chosen in every Shire-Court, by the Commonalty of the Same Shire, three subjlantia! Men, Knights, or other lawful, wife, and well-disposid Persons, to be Justices, which shall be aligned by the King's Letters Patents, under the Great Seal, to hear and determine (without any other Writ, but only their Commision such plaints as Mall be made upon all those that commit, or offend against any Point, containd in the aforejaid Charters. 28 Edn. 1. Chap. 1.

othly, The Necessity of preserving these Charters hath appeard in nothing morë, than in the care they have taken to canti in thein ; which, as, Cook. obferves, bath been by Thirtytwo Parliaments confirin'd, est.ublill'd, and commanded to be put is execution, with the condign Punishment they had inflicted up on the Ottenders. Cool's Proem to the second Book of liis Intitut.

7thly, That in the notable Petition of Right, many of these grcat Privileges, and free Cuftons, containd in the aforesaid Charters, and other good Laws, are recited and confirmed, 2. Car. 1.

öthly, The late King, in his Declaration at New Market, 1541. acknowledged the Law to be the Rule of his Power : By which he doubtless intended Fundamental Laws, since it may be the great Advantage of Countries, sometimes to suspend the execution of Temporary Laws.

Having so manifestly evidenc'd that venerable Esteem our Anceltors had of that Golden Rule (the Great Charter) with their docp Solicitude to preserve it from the defacing of Ufurpa. tion and Faction ; we shall proceed to give an account of their juit Rosentment and carneft Prosecution againft some of thole, who in any Age lave adventured to undermine that antient Foundation, by introducing an Arbitrary way of Government,

First, As Judicious Lambard reports in his Saxon Transla, tion; That the Kings, in those days, were by their Coronation-Oaths obliged to keep the antient Fundamental Laws and Customs of this Land, (of which this Great Charter is but declaratory) so did Kim Alfred (reputed the most famous Compiler of Laws amonght


« PreviousContinue »