The peoples ancient and just liberties asserted in the tryal of William Penn, and William Mead, at the sessions held at the Old-Baily in London, the first, third, fourth and fifth of Sept. 70. against the most arbitrary procedure of that court. Penn, William, 1644-1718. 1670 Approx. 131 KB of XML-encoded text transcribed from 32 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2006-02 (EEBO-TCP Phase 1). A54186 Wing P1334B ESTC R222457 99833635 99833635 38113 This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal . The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. Early English books online. (EEBO-TCP ; phase 1, no. A54186) Transcribed from: (Early English Books Online ; image set 38113) Images scanned from microfilm: (Early English books, 1641-1700 ; 2175:10) The peoples ancient and just liberties asserted in the tryal of William Penn, and William Mead, at the sessions held at the Old-Baily in London, the first, third, fourth and fifth of Sept. 70. against the most arbitrary procedure of that court. Penn, William, 1644-1718. Mead, William, 1628-1713, defendant. 62, [2] p. s.n.], [London : Printed in the year, 1670. The words "ancient and just" are enclosed in brackets on title page. Place of publication from Wing. With a final errata leaf. In this edition A2r line 5 begins "most Arbitrarily"; line 20 begins "dict) in the end". Reproduction of the original in the British Library. Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford. Re-processed by University of Nebraska-Lincoln and Northwestern, with changes to facilitate morpho-syntactic tagging. 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Assembly, Right of -- England -- Early works to 1800. 2005-07 TCP Assigned for keying and markup 2005-08 Apex CoVantage Keyed and coded from ProQuest page images 2005-10 Elspeth Healey Sampled and proofread 2005-10 Elspeth Healey Text and markup reviewed and edited 2006-01 pfs Batch review (QC) and XML conversion THE Peoples Ancient and Just Liberties ASSERTED , IN THE TRYAL OF William Penn , and William Mead , At the Sessions held at the Old-Baily in London , the first , third , fourth and fifth of Sept. 70. against the most Arbitrary procedure of that Court. Isa . 10. 1 , 2. Wo unto them that Decree Unrighteous Decrees , and write grievousness , which they have prescribed ; to turn away the Needy from Judgment , and to take away the right from the Poor , &c. Psal . 94. 20. Shall the Throne of Iniquity have fellowship with thee , which frameth mischief by a Law. Sic volo , sic jubeo , stat pro ratione voluntas . Old-Baily , 1st . 3d. 4th , 5th of Sept. 1670. Printed in the Year , 1670. To the English Reader . IF ever it were time to speak or write , t is now , so many strange Occurrances , requiring both . How much thou art concerned in this ensuing Tryal ( where not only the Prisoners , but the Fundamental Laws of England ) have been most Arbitrarily Arraigned , Read , and thou mayst plainly judge . Liberty of Conscience , is counted a Pretence for Rebelliion , and Religious Assemblies , Routs , and Riots ; and the Defenders of both , are by them , reputed Factious and dis-affected . Magna Charta , is Magnaf — with the Recorder of London ; and to demand Right an Affront to the Court. Will and Power are their great Charter , but to call for Englands , is a Crime , incurring the penalty of their Bale-Dock , and Nastyhole , nay , the menace of a Gag , and Iron Shackles too . The Jury ( though proper Judges ) of Law and Fact ) they would have over-ruled in both , as if their Verdict signified no more , then to eccho back the illegal charge of the Bench ; and because their courage , and honesty did more then hold pace , with the threat and abuse of those , who sate as Judges , ( after two dayes and two nights restraint for a Verdict ) in the end were fined and imprisoned , for giving it . O! what monstrous , and illegal proceedings are these ? Who reasonably can call his Coat his own ? When Property , is made subservient to the Will and Interest of his Judges ; or , who can truly esteem himself a Free man ? When all Pleas for liberty are esteemed Sedition , and the Laws , that give , and maintain them , so many insignificant pieces of formality . And What do they less then plainly tell us so , who at will and pleasure break open our Locks , rob our Houses , raze their Foundations , imprison our Persons , and finally deny us Justice to our relief ; as if they then acted most like Christian men , when they were most barbarous , in ruining such , as really are so ; and that no Sacrifice could be so acceptable to God , as the destruction of those , that most fear him . In short , That the Conscientious should only be obnoxious , and the just demand of our Religious Liberty , the reason , why we should be denyed our civil freedom ( as if to be a Christian and an English-man were inconsistant ) and that so much solicitude and deep contrivance , should be imployed only , to ensnare , and ruin , so many ten thousand conscientious Families ) so eminently , industrous , serviceable , and exemplary ; whilst Murders can so easily obtain pardons , Rapes be remitted , publique Uncleanness pass unpunisht , and all manner of Levity , Prodigallity , Excess , Prophaneness , and Atheism , universally connived at ; if not in some respect manifestly encouraged ) cannot but be detestably abhorrent , to every serious and honest mind . Yet that this lamentable state is true , and the present Project in hand , let London's Recorder , and Canterburies Chaplain be heard . The first in his publique Panegerick , upon the Spanish inquisition , highly admiring the Prudence of the Romish Church , in the erection of it , as an excellent way , to prevent Schism , which unhappy expression , at once passeth sentence , both against our fundamental Laws , and Protestant . Reformation . The second , In his printed Mercenary discourse against Toleration , asserting for a main Principle , That it would be less injurious , to the Government , to dispence with prophane and loose Persons , then to allow a toleration to religious Dissenters : It were to over-do the business , to say any more , where there is so much said already . And therefore to conclude , we cannot choose but admonish all , as well Persecutors , to relinquish their Heady , Partial , and Inhumane Prosecutions ( as what will certainly issue in disgrace here , and inevitable condign punishment hereafter ) as those who yet dare express their moderation ( however out of fashion , or made the brand of Phanatischism ) not to be huf d , or menaced , out of that excellent temper , to make their parts , and persons subservient , to the base humors , and sinister designs of the bigest mortal upon Earth : But to reverence and obey , the Eternal just God , before whose great Tribunal , all must render their accounts , and where he will recompence to every Person according to his works . The Tryal of William Penn and William Mead. AS there can be no Observation , where there is no Action ; so it s impossible , there should be a juditious Intelligence , without due Observation . And since there can be nothing more seasonable then a right Information , especially of Publick Acts ; and well knowing , how industrious some will be , to mis-represent , this Tryal to the disadvantage of the Cause and Prisoners , it was thought requisite , in defence of both , and for the satisfaction of the People , to make it more publick ; nor can there be any business wherein the People of England are more concerned , then in that which relates to their civil and Religious Liberties , questioned in the Persons above-named , at the Old-Baily , the first , third , fourth and fifth of Sept. 1670. There being present , Sam. Starling , Mayor , Tho. Howel , Recorder . Tho. Bludworth , Alder. William Peak , Alderm . Richard Ford , Alderman . Joseph Shelden , Alderman . John Smith , James Edwards , Sheriffs . Cryer , O Yes , Thomas Veer , John. Bushel , John Hammond , Charles Milson , Gregory Walklet , John Brightman , Wil. Plumsted , Henry Henley , Thomas Damask , Henry Michel , William Lever , John Baily . The Form of the Oath . You shall well and truely try , and true Deliverance make betwixt our Soveraign Lord the King , and the Prisoners at the Bar , according to your Evidence ; So help you God. That , William Penn Gent. and William Mead late of London , Linnen Draper , with divers other Persons to the Jurors unknown , to the number of three hundred , the 14th day August , in the 22th year of the King , about eleaven of the clock in the ●orenoon , the same day , with force and arms , &c. in the Parish of St. Bent Grace-Church in Bridge-ward , London , in the Street called Gratious-Church-Street , unlawfully and tumultuously did assemble and congregate themselves together , to the disturbance of the Peace of the said Lord the King : and the aforesaid William Penn , and William Mead , together with other Persons , to the Jurors aforesaid unknown , then and there so assemble and congregate together ; the aforesaid William Penn , by agreement between him and William Mead , before made ; and by abetment of the aforesaid William Mead then and there , in the open Street , did take upon himself to preach and speak , and then , and there , did preach and speak unto the aforesaid William Mead , and other Persons there , in the Street aforesaid , being assembled and congregated together , by reason whereof a great concourse and tumult of People in the Street aforesaid , then , and there , along time did remain and continue , in contempt of the said Lord the King , and of his Law , to the great disturbance of his peace , to the great terror and disturbance of many of his Leige people and Subjects , to the ill example of all others , in the like case Offenders , and against the peace of the said Lord the King , his Crown , and dignity . What say you , William Penn and William Mead , are you guilty , as you stand indicted , in manner and form , as aforesaid , or not guilty . Penn , It is impossible , that we should be able to remember the indictment verbatim , and therefore we desire a Copy of it , as is customary in the like occasions . Rec. You must first plead to the indictment , before you can have a Copy of it . Pen. Iam unacquainted with the formality of the Law , and therefore , before I shall answer directly , I request two things of the Court. First , that no advantage may be taken against me , nor I deprived of any benefit , which I might otherwise have received . Secondly , that you will promise mē a fair hearing , and liberty of making my defence . Court , No advantage shall be taken against you ; you shall have liberty ; you shall be heard . Pen. Then I plead not guilty in manner and form . Cla. What sayest thou William Mead , art thou guilty in manner and form , as thou standest indicted , or not guilty ? Mead , I shall desire the same liberty as is promised William Penn. Court , You shall have it . Mead , Then I plead not guity in manner and form . The Court adjourned until the afternoon . Cryer , O yes , &c. Cla. Bring William Penn and William Mead ▪ to the Bar. Obser . The said Prisoners were brought , but were set aside , and other business prosecuted . Where we cannot choose but observe , that it was the constant and unkind practices of the Court , to the Prisoners , to make them wait upon the Tryals of Fellons and Murderers , thereby designing in all probability , both to affront and tire them . After five hours attendance , the Court broke up and adjourned to the third instant . The third of September , 1670. the Court sate . Cry , O yes , &c. Cla. Bring William Penn and William Mead before the Bar. Mayor . Sirrah , who bid you put off their Hats ? put on their Hats again . Obser . Whereupon one of the Officers putting the Prisoners Hats upon their Heads ( pursuant to the Order of the Court ) brought them to the Bar. Record . Do you know where you are ? Pen. Yes . Record . Do not you know it is the Kings Court ? Pen. I know it to be a Court , and I suppose it to be the Kings Court. Record . Do you not know there is respect due to the Court ? Pen. Yes . Record . Why do you not pay it then ? Pen. I do so . Record . Why do you not pull off your Hat then ? Pen. Because I do not believe , that to be any respect . Record . Well , the Court sets forty Marks a piece upon your Heads , as a Fine for your contempt of the Court. Pen. I desire it might be observed , that we came into the Court with our Hats off , ( that is , taken off ) and if they have been put on since , it was by order from the Bench ; and therefore not we , but the Bench should be fined . Mead , I have a Question to ask the Recorder , Am I fined also ? Recor. Yes . Mead , I desire the Jury , and all people to take notice of this injustice of the Recorder ; who spake to me to pull off my Hat ? and yet hath he put a fine upon my head . O fear the Lord , and dread his Power , and yeild to the guidance of his holy Spirit , for he is not far from every one of you . The Jury Sworn again . Obser . J. Robinson Lievtenant of the Tower , disingeniously objected against John Bushell , as if he had not kist the Book , and therefore would have him sworn again ; though indeed , it was on purpose , to have made use of his tenderness of Conscience in avoiding reiterated Oaths , to have put him by his being a Jury-man , apprehending him to be a person , not fit to Answer their arbitrary ends . The Clark read the indictment , as aforesaid . Clar. Cryer , Call James Cook into the Court , give him his Oath . Cla. James Cook lay your hand upon the book , the evidence you shall give to the Court , betwixt our Soveraign the King , and the Prisoners at the Bar , shall be the Truth , and the whole Truth , and nothing but the Truth ; so help you God , &c. Cook. I was sent for , from the Exchange , to go and disperse a Meeting in Gratious-street , where I saw Mr. Penn speaking to the people , but I could not hear what he said , because of the noise ; I endeavoured to make way to take him , but I could not get to him for the crowd of people ; upon which Captain Mead came to me , about the Kennel of the Street , and desired me to let him go on ; for when he had done , he would bring Mr Penn to me . Cour. What number do you think might be there ? Cook. About three or four hundred People . Cour. Call Richard Read , Give him his Oath . Read being sworn was askt , what do you know concerning the Prisoners at the Bar. Read , My Lord , I went to Gratious - street , where I found a great croud of People , and I heard Mr. Pen preach to them ; and I saw Captain Mead speaking to Leivtenant Cook , but what he said , I could not tell . Mead , What did William Penn say ? Read. There was such a great noise , that I could not tell what he said . Mead , Jury observe this Evidence , He saith he heard him preach , and yet saith , he doth not know what he said . Jury take notice , he swears now a clean contrary thing , to what he swore before the Mayor , when we were committed : For now he swears that he saw me in Gratious-street , and yet swore before the Mayor , when I was committed , that he did not see me there . I appeal to the Mayor himself , if this be not true ; but no answer was given . Cour. What number do you think might be there ? Read. About four or five hundred . Pen. I desire to know of him what day it was ? Read. Answ . the 14th day of August . Pen. Did he speak to me , or let me know he was there ; for I am very sure I never saw him ? Cla. Cryer call into the Court. Cour. give him his Oath . My Lord , I saw a great number of People , and Mr Penn I suppose was speaking ; I see him make a motion with his hands , and heard some noise , but could not understand what he said ; but for Captain Mead I did not see him there . Rec. What say you Mr. Mead ? were you there ? Mead , It is a Maxim in your own Law , Nemo tenetur accusare seipsum , which if it be not true Latine , I am sure it is true Enlish , That no man is bound to accuse himself : And why dost thou offer to ensnare me , with such a question ? Doth not this shew thy malice ? Is this like unto a Judge , that ought to be Counsel for the Prisoner at the Bar ? Record . Sir , Hold your Tongue , I did not go about to insnare you . Pen. I desire we may come more close to the point , and that silence be commanded in the Court. Cry. O yes , All manner of Persons keep silence upon pain of imprisonment — silence in the Court. Pen. We confess our selves to be so far from recanting , or declining to vindicate the assembling of our selves , to Preach , Pray , or Worship the Eternal , Holy , Just God , that we declare to all the World , that we do believe it to be our indispensable duty , to meet incessantly upon so good an account ; nor shall all the powers upon Earth , be able to divert us from reverencing and adoring our God , who made us . Brown. You are not here for worshipping God , but for breaking the Law ; you do your selves agreat deal of wrong in going on in that discourse . Pen. I affirm I have broken no Law , nor am I guilty of the Indictment , that is laid to my charge , and to the end , the Bench , the Jury , and my self , with these that hear us , may have a more direct understanding of this procedure : I desire you would let me to know by what Law it is you prosecute me , and upon what Law you ground my indictment . Rec. Upon the common Law. Pen. where is that common Law ? Rec. You must not think that I am able to run up so many years , and over so many adjudged Cases , which we call Common Law , to answer your curiosity . Pen. This Answer I am sure is very short of my Question , for if it be Common , it should not be so hard to produce . Rec. Sir , will you plead to your Indictment ? Pen. Shall I plead to an Indictment , that hath no Foundation in Law , if it contain that Law you say I have broken , why should you decline to produce that Law , since it will be impossible for the Jury to determine , or agree to bring in their Verdict , who have not the Law produced , by which they should measure the truth of this Indictment , and the guilt or contrary of my Fact ? Rec. You are a sawcy Fellow , speak to the Indictment . Pen. I say , it is my place to speak to matter of Law ; I am arraigned a Prisoner , my liberty , which is next to life it self , is now concerned ; you are many Mouths and Ears against me , and if I must not be allowed to make the best of my Case , it is hard : I say again , unless you shew me , and the People , the Law you ground your Indictment upon ; I shall take it for granted , your proceedings are meerly Arbitrary . Rec. The Question is whether you are guilty of this Indictment ? Pen. The Question is not whether I am guilty of this Indictment , but whether this Indictment be legal , it is too general and imperfect an Answer , to say it is the Common Law , unless we knew both where , and what it is ; For where there is no Law , there is no Transgression ; and that Law which is not in being , is so far from being Common , that it is no Law at all . Rec. You are an impertinent Fellow , will your teach the Court what Law is ? It s Lex non scripta , that which many have studied thirty or forty years to know , and would you have me to tell you in a moment ? Pen. Certainly , If the Common Law be so hard to be understood , it s far from being very Common ; but if the Lord Cook , in his Institutes , be of any consideration , he tells us , That Common Law is Common Right , and that Common Right is the great Charter-Priviledges : Confirmed 9 Hen. 3. 29. 25 Edw. 1. 1. 2 Edw. 3. 8. Cook Instit . 2. p. 56. Rec. Sir , you are a troublesom Fellow , and it is not for the honour of the Court to suffer you to go on . Pen. I have asked but one Question , and you have not answered me ; though the Rights and Priviledges of every English man be concerned in it . Rec. If I should suffer you to ask Questions till to morrow morning you would be never the wiser . Pen. That is according as the Answers are . Rec. Sir , We must not stand to hear you talk all night . Pen. I design no affront to the Court , but to be heard in my just Plea , and I must plainly tell you , that if you will deny me Oyer of that Law , which you suggest I have broken , you do at once deny me an acknowledged right , and evidence to the whole World your resolution to sacrifice the Priviledges of English men to your Sinister and Arbitrary designs . Rec. Take him away : my Lord , if you take not some course with this pestilent Fellow , to stop his mouth , we shall not be able to do any thing to Night . May. Take him away , Take him away , turn him into the Bale-dock . Pen. These are but so many vain exclamations ; Is this Justice or true Judgment ? Must I therefore be taken away because I plead for the fundamental Laws of England ? However , this I leave upon your Consciences , who are of the Jury ( and my sole Judges ) that if these Antient Fundamental Laws , which relate to liberty and property , and ( are not limited to particular perswasions in matters of Religion ) must not be indispensibly maintained and observed ; Who can say he hath right to the Coat upon his back ? Certainly our liberties are openly to be invaded , our Wives to be ravished , our Children slaved , our Families ruined , and our Estates led away in Triumph , by every sturdy Begger and malitious Informer , as their Trophies , but our ( pretended ) Forfeits for Conscience sake ; the Lord of Heaven and Earth will be Judge between us in this matter . Rec. Be silent there . Pen. I am not to be silent in a Case wherein I am so much concerned , and not only my self , but many ten thousand Families besides . Obser . They having rudely haled him into the Bale-dock , William Mead they left in Court , who spake as followeth . Mead. You men of the Jury , here I do now stand , to answer to an Indictment against me , which is a bundle of Stuff , full of Lyes and Falshoods ; for therein I am accused , that I met vi et armis , illicite et tumultuose . : time was , when I had freedom to use a carnal Weapon , and then I thought I feared no man ; but now I fear the Living God , and dare not make use thereof , nor hurt any man ; nor do I know I demeaned my self as a tumultuous person : I say , I am a peaceable man , therefore it is a very proper question what William Penn demanded in this Case , An Oyer of the Law , on which our Indictment is grounded . Recor. I have made answer to that already . Mead. Turning his face to the Jury , saith , You men of the Jury , who are my Judges , if the Recorder will not tell you what makes a Riot , a Rout , or an unlawfull Assembly , Cook , he that once they called the Lord Cook , tells us what makes a Riot , a Rout , and an unlawfull Assembly — A Riot is when three , or more , are met together to beat a man , or to enter forcibly into another mans Land , to cut down his Grass , his Wood , or break down his Pales . Obser . Here the Recorder interrupted him , and said , I thank you Sir , that you will tell me what the Law is , scornfully pulling off his Hat. Mead. Thou mayst put on thy Hat , I have never a Free for thee now . Brown. He talkes at random , one while an Independent , another while some other Religion , and now a Quaker , and next a Papist . Mead. Turpe est doctori cum culpa redarguit ad ipsum . May. You deserve to have your Tongue cut out . Rec. If you discourse on this manner , I shall take occasion against you . Mead , Thou didst promise me , I should have fair liberty to be heard ; Why may I not have the priviledge of an English man ? I am an English man , and you might be ashamed of this dealing . Rec. I look upon you to be an Enemy to the Laws of England , which ought to be observed and kept , nor are you worthy of such priviledges , as others have . Mead , The Lord is Judge between me and thee in this matter . Obser . Upon which they took him away into the Bale-dock , and the Recorder proceeded to give the Jury their charge , as followeth . Rec. You have heard what the indictment is , It is for preaching to the People , and drawing a tumultuous Company after them , and he was speaking ; if they should not be disturbed , you see they will go on ; there are three or four Witnesses , that have proved this , that he did preach there , that Mr Mead did allow of it ; after this , you have heard by substantial Witnesses what is said against them : Now we are upon the Matter of fact , which you are to keep to , and observe , as what hath been fully sworn at your peril . Obser . The Prisoners were put out of the Court , into the Bale-doke , and the charge given to the Jury in their absence at which W. P. with a very raised voyce , it being a considerable distance from the Bench , spake . Pen. I appeal to the Jury , who are my Judges , and this great Assembly , whether the proceedings of the Court are not most arbitrary , and void of all Law , in offering to give the Jury their Charge in the absence of the Prisoners ; I say , it is directly opposit to , and destructive of the undoubted right of every English Prisoner , as Cook in the 2 Iustit . 29. on the Chap. of Magna Charta speaks . Obser . The Recorder being thus unexpectedly lasht for his extra-juditial procedure , said with an inraged smile . Rec. Why , ye are present , you do hear , do you not ? Pen. No thanks to the Court , that commanded me into the Bale-dock ; and you of the Jury take notice , that I have not been heard , neither can you legally depart the Court , before I have been fully heard , having at least ten or twelve Material points to offer , in order to invallid their Indictment . Rec. Pull that Fellow down , pull him down . Mead. Are these according to the rights and priviledges of English men , that we should not be heard , but turned into the Bale-dock , for making our defence , and the Jury to have their Charge given them in our absence ; I say these are Barbarous and Unjust proceedings . Rec. Take them away into the Hole ; to hear them talk all night , as they would , that I think doth not become the honour of the Court , and I think you ( i. e. ) the Jury ) your selves would be tired out , and not have patience to hear them . Obser . The Jury were commanded upto agree upon their verdict , the Prisoners remaining in the stinking Hole ; after an hour and halfs time eight came down agreed , but four remained above , and the Court sent an Officer for them , and they accordingly came down , the Bench used many unworthy threats to the four that discented ; and the Recorder , addressing himself to Beshell , said , Sir , You are the cause of this disturbance , and manifestly shew your self an abettor of faction , I shall set a Mark upon you Sir. J. Robinson , Mr. Bushel , I have known you near this fourteen years ; you have thrust your self upon this Jury , because you think there is some service for you , I tell you , you deserve to be indicted more then any man that hath been brought to the Bar this day . Bush . No Sir John , There were threescore before me , and I would willingly have got off , but could not . Bloodw . I said when I saw M. Bushel , what I see is come to pass , for I knew he would never yield . Mr. Bushel , we know what you are . May. Sirrah , you are an impudent Fellow , I will put a mark upon you . Obser . They used much menacing Language , and behaved themselves very imperiously to the Jury , as persons not more void of Justice then sober Education : After this Barbarous Usage , they sent them to consider of bringing in their Verdict , and after some considerable time they returned to the Court. Silence called for , and the Jury called by their names . Cla. Are you agreed upon your Verdict ? Jury . Yes . Cla. Who shall speak for you ? Jury . Our Fore-man . Cla. Look upon the Prisoners at the Bar ; How say you ? Is William Penn guilty of the matter wherefore he stands indicted in manner and form , or not guilty ? Fore-m. Guilty of speaking in Gracious-Street . Court. Is that all ? Fore-m. That is all I have in commission . Recor. You had as good say nothing . May. Was it not an unlawful Assembly ? you mean he was speaking to a Tumult of People there ? Fore-m. My Lord , This was all I had in Commission . Obser . Here some of the Jury seemed to buckle to the questions of the Court , upon which Bushel , Hammond , and some others opposed themselves , and said , they allowed of no such word , as an unlawful Assembly in their Verdict ; at which the Recorder , Mayor , Robinson and Bloodworth took great occasion to villifie them with most opprobious language ; and this Verdict not serving their turns , the Recorder expressed himself thus . Recor. The Law of England will not allow you to part till you have given in your Verdict . Jury . We have given in our Verdict , and we can give in no other . Recor. Gentlemen , you have not given in your Verdict , and you had as good say nothing ; therefore go and consider it once more , that we may make an end of this troublesome business . Jury . We desire we may have Pen , Ink and Paper . Obser . The Court adjourned for half an hour ; which being expired , the Court returns , and the Jury not long after . The Prisoners were brought to the Bar , and the Juries names called over . Clar. Are you agreed of your verdict . Jur. Yes . Clar. Who shall speak for you ? Jur. Our Fore-man . Clar. What say you , look upon the Prisoners ; Is William Penn guilty in manner and form , as he stands indicted , or not guilty . Fore-m. Here is our Verdict , holding forth a piece of Paper to the Clark of the Peace , which follows . WE the Jurors , hereafter named , do find William Pen to be guilty of Speaking or Preaching to an Assembly , met together in Gratious-Street , the 14th of August last 1670. And that William Mead not guilty of the said indictment . Fore-m. Thomas Veer , Edward Bushel , John Hammond , Henry Henley , Henry Michel , John Brightman , Charles Milson , Gregory Walklet , John Baily , William Lever , James Damask , Wil. Plumsted . Obser . This both Mayor and Recorder resented at so high a rate , that they exceeded the bounds of all reason and civility . May. What will you be lead by such a silly Fellow as Bushel ? an impudent canting Fellow ; I warrant you , you shall come no more upon Juries in haste : You are a Fore-man indeed , addressing himself to the Fore-man , I thought you had understood your place better . Rec. Gentlemen , You shall not be dismist till we have a Verdict , that the Court will accept ; and you shall be lockt up , without Meat , Drink , Fire , and Tobacco ; you shall not think thus to abuse the Court ; we will have a Verdict , by the help of God , or you shall starve for it . Pen. My Jury , who are my Judges , ought not to be thus menaced ; their Verdict should be free , and not compelled ; the Bench ought to wait upon them , but not forestaul them ; I do desire that Justice may be done me , and that the arbitrary resolves of the Bench may not be made the measure of my Juries verdict . Rec. Stop that prateing Fellows mouth , or put him out of the Court. May. You have heard that he preacht , that he gathered a company of tumultuous people , and that they do not only disobey the martial Power , but civil also . Pen. It is a great mistake , we did not make the tumult , but they that interrupted us ; the Jury cannot be so ignorant , as to think , that we met there , with a design to disturb the civil Peace , since ( 1st . ) we were by force of Arms kept out of our Lawful House , and met as near it in the street , as their Souldiers would give us leave ; and ( 2d . ) because it was no new thing , ( nor with the circumstances exprest in the indictment ) but what was usual and customary with us ; t is very well known that we are a peaceable People , and cannot offer violence to any man. Obser . The Court being ready to break up , and willing to huddle the Prisoners to their Goal , and the Jury to their chamber , Penn spoke as follows . Pen. The agreement of twelve men is a Verdict in Law , and such a one being given by the Jury , I require the Clark of the Peace to record it , as he will answer it , at his peril . And if the Jury bring in another Verdict , contradictory to this , I affirm they are perjured men in Law. ( and looking upon the Jury said ) You are English men , mind your Priviledge , give not away your Right . Bush . &c. Nor will we ever do it . Obser . One of the Jury men , pleaded indisposition of body , and therefore desired to be dismist . May. You are as strong as any of them ; starve them ; and hold your Principles . Rec. Gentlemen , You must be contented with your hard fate , let your patience overcome it ; for the Court is resolved to have a verdict , and that before you can be dismist . Jury . We are agreed , we are agreed , we are agreed . Obser . The Court swore several persons , to keep the Jury all night without Meat , Drink , Fire , or any other accommodation ; they had not so much as a Chamber-pot , though desired . Cry. O yes , &c. Obser . The Court adjourns till seven of the Clock next morning ( being the fourth instant , vulgarly called Sunday ) at which time the Prisoners were brought to the Bar ; the Court sate , and the Jury called to bring in their Verdict . Cry. O yes , &c. — Silence in the Court , upon pain of imprisonment . The Juries names calle dover . Cla. Are you agreed upon your verdict ? Jur. Yes . Cla. Who shall speak for you ? Jur. Our Fore-man . Cla. What s●y you ? Look upon the Prisoners at the Bar ; Is he guilty of the matter whereof he stands indicted , in manner and form as aforesaid , or not guilty ? Fore-man , William Penn is guilty of Speaking in Gratious-street . May. To an unlawful Assembly ? Bush . No my Lord , We give no other verdict , then what we gave last night , we have no other verdict to give . May. You are a factious Fellow , I le take a course with you . Blood. I knew Mr. Bushel would not yield . Bush . Sir Tho. I have done according to my Conscience . May. That Conscience of yours would cut my throat . Bush . No my Lord , it never shall . May. But I will cut yours so soon as I can . Rec. He has inspired the Jury , he has the spirit of Divination , methinks I feel him ; I will have a positive Verdict , or you shall starve for it . Pen. I desire to ask the Recorder one Question ; Do you allow of the Verdict given of William Mead ? Rec. It cannot be a verdict , because you were indicted for a Conspiracy , and one being found not guilty , and not the other , it could not be a verdict . Pen. If Not guilty be not a verdict , then you make of the Jury and Magna Charta but a meer nose of Wax . Mead , How ! is Not guilty no verdict ? Rec. No , t is no verdict . Pen. I affirm that the consent of a Jury , is a verdict in Law ; and if W. M. be not guilty , it consequently follows , that I am clear , since you have indicted us of a conspiracy , and I could not possibly conspire alone . Obser . There were many passages , that could not be taken , which past between the Jury and the Court. The Jury went up again , having received a fresh charge from the Bench , if possible to extort an unjust verdict . Cry. O yes , &c. Silence in the Court. Cour. Call over the Jury . Which was done . Cla. What say you ? is William Penn guilty of the matter whereof he stands indicted , in manner and form asoresaid , or not guilty ? Fore-man , Guilty of speaking in Gratious-Street . Rec. What is this to the purpose ? I say , I will have a verdict . And speaking to Edw. Bushel said , You are a factious Fellow ; I will set a Mark upon you ; and whilst I have any thing to do in the City , I will have an eye upon you . May. Have you no more wit then to be led by such a pittiful Fellow ? I will cut his Nose . Pen. It is intolerable that my Jury should be thus menaced ; Is this according to the fundamental Laws ? Are not they my proper Judges by the great Charter of England ? What hope is there of ever having justice done , when Juries are threatned , and their Verdicts rejected ? I am concerned to speak and grieved to see such arbitrary proceedings . Did not the Lievtenant of the Tower render one of them worse then a Fellon ? And do you not plainly seem to condemn such for factious Fellows , who answer not your ends ? Unhappy are those Juries , who are threatned to be fined , and starved , and ruined , if they give not in Verdicts contrary to their Consciences . Rec. My Lord , you must take a course with that same Fellow . May. Stop his Mouth ; Jaylor bring Fetters , and stake him to the ground . Pen. Do your pleasure , I matter not your Fetters . Rec. Till now I never understord the reason of the policy and prudence of the Spaniards , in suffering the Inquisition among them : And certainly it will never be well with us , till something like unto the Spanish-Inquisition be in England . Obser . The Jury being required to go together to find another Verdict , and steadfastly refusing it ( saying they could give no other Verdict , then what was already given ) the Recorder in great passion was running off the Bench , with these words in his mouth , I protest I will sit here no longer to hear these things ; at which the Mayor calling , Stay , stay , he returned , and directed himself unto the Jury , and spoke as followeth : Rec. Gentlemen , we shall not be at this Trade alwayes with you ; you will find the next Sessions of Parliament , there will be a Law made , that those that will not conform shall not have the protection of the Law. Mr. Lee , draw up another Verdict , that they may bring it in special . Lee , I cannot tell how to do it . Jur. We ought not to be returned , having all agreed , and set our hands to the Verdict . Rec. Your Verdict is nothing , you play upon the Court ; I say you shall go together , and bring in another Verdict , or you shall starve ; and I will have you charted about the City , as in Edward the thirds time . Fore-m. We have given in our verdict , and all agreed to it , and if we give in another , it will be a force upon us to save our lives . May. Take them up . Offic. My Lord , they will not go up . Obser . The Mayor spoke to the Sheriff , and he came off of his seat , and said . Sher. Come , Gentlemen , you must go up ; you see I am commanded to make you go . Obser . Upon which the Jury went up ; and several sworn , to keep them without any accomodation as aforesaid , till they brought in their verdict . Cry. O yes , &c. The Court adjourns till to morrow morning , at seven of the clock . Obser . The Prisoners were remanded to New-Gate , where they remained till next morning , and then were brought unto the Court , which being sate , they proceeded as followeth . Cry. O yes , &c. Silence in the Court upon pain of imprisonment . Cla. Set William Pen and William Mead to the Bar. Gentle-of the Jury , answer to your Names , Tho. Veer , Edw. Bushel , John Hammond , Henry Henly , Henry Michell , John Brightman , Clarles Milson , Gregory Walklet , John Baily , William Leaver , James Damask , William Plumstead . Are you all agreed of your Verdict ? Jur. Yes . Cla. Who shall speak for you ? Jur. Our Foreman . Cla. Look upon the Prisoners . What say you ? is William Penn guilty of the matter whereof he stands indicted , in manner and form &c. or not guilty ? Fore-man , Here is our verdict in writing , and our hands subscribed Obser . The Clark took the Paper , but was stopt by the Recorder from reading of it ; and he commanded to ask for a posstive verdict . Fore-man , That is our verdict ; we have subscribed to it . Cla. How say you is William Penn guilty . &c. or not guilty ? Fore-man , Not guilty . Cla. How say you ? is William Mead guilty , &c. or not guilty ? Fore-man , Not guilty . Cla. Then hearken to your verdict , you say that William Penn is not guilty in manner and form as he stands indicted ; you say that William Mead is not guilty in manner and form as he stands indicted , and so you say all , Jur. Yes , we do so . Obser . The Bench being unsatisfied with the verdict , commanded that every person should distinctly answer to their names , and give in their verdict , which they unanimously did , in saying , Not guilty , to the great satifaction of the Assembly . Rec. I am sorry , Gentlemen , you have follollowed your own judgments and Opinions , rather then the good and wholsom advice , which was given you ; God keep my life out of your hands ; but for this the Court fines you forty Mark a man ; and imprisonment , till paid . At which Penn stept up towards the Bench , and said . Pen. I demand my liberty , being freed by the Jury . May. No , you are in for your Fines . Pen. Fines , for what ? May. For contempt of the Court. Pen. I ask , if it be according to the fundamental Laws of England , that any English-man should be fined or amerced , but by the judgment of his Peers or Jury ; since it expresly contradicts the fourteenth and twenty ninth Chap. of the great Charter of England , which say , No Free-man ought to be amerced , but by the Oath of good and Lawful men of the Vicinage . Rec. Take him away , Take him away , take him out of the Court. Pen. I can never urge the fundamental Laws of England , but you cry , Take him away , take him away . But it is no wonder , Since the Spanish Inquisition hath so great a place in the Recorders heart . God Almighty , who is just , will judge you all for these things . Obser . They haled the Prisoners into the Bale-dock , and from thence sent them to New-Gate , for non payment of their Fines ; and so were their Jury . An Appendix , by way of Defence for the Prisoners , as what might have been offered against the Indictment , and illegal ' Proceedings of the Court thereon , had they not violently over-rul'd and stopp'd them . UPon a sober disquisition into the several parts of the Indictment , we find it so wretchedly defective , as if it were nothing else but a meer composition of error , rather calculated to the malitious designs of the Judges , then to the least verity of Fact committed by the Prisoners . To prove this , what we say , will be a main help to discover the Arbitrary proceedings of the Bench in their frequent Menaces to the Jury ; as if it were not so much their Business to try , as to condemn the Prisoners ; and that not so much for any fact they had committed , as what the Court would have suggested to the Jury to have been their Fact. § . 1. It is the constant Common-Law of England , that no man should be Taken , Imprisoned , Amerced , Deseized of his Free-hold , of his Liberties or free Customs , but by the judgement of his Peers , which are vulgerly called a Jury , from Jurare , because they are sworn to do right . § . 2. The only assistance that is given the Jury , in order to a Verdict is ; First , The Evidence given of the Fact committed , by the person indicted . Secondly , The knowledge of that Law , Act or Statute the Indictment is grounded upon , and which the Prisoners are said to have transgressed . § . 3. We shall neglect to mention here , how much they were deprived , of that just advantage the ancient equal Laws of England do allow ; designing it for a conclusion of the whole , and shall only speak here to matter of Fact and Law. § . 4. The Evidence , you have read in the Tryal , the utmost import of which , is no more then this ; That William Penn was speaking in Gracious-Street , to an Assembly of people , but knew not what he said , which is so great a contradiction , as he that runs may read it ; for no man can say another man Preaches , and yet understand not what he saith ; he may conjecture it , but that is a lame evidence in Law ; it might as well have been sworn , That he was speaking of Law , Physick , Trade , or any other matter of civil concernment . Besides , there is no Law against Preaching what is Truth , whether it be in the Street , or in any other place ; nor is it possible , that any man can truly swear , That he Preacht Sedition , Heresie , &c. unless he so heard him , that he could tell what he said . § . 5. The Evidence further saith , That W. Mead was there , but til being in Gracious-Street be a fault , and hearing a man speak the Witness knows not what , be contrary to Law , the whole Evidence is useless , and impertinent ; but what they want of that , they endeavour to supply with Indictment ; whose parts we proceed to consider . Exceptions against the Indictment . § . 6. It saith , That the Prisoners [ were met upon the 15th day of August , 1670 ] whereas their own Evidence affirms it to be upon the 14th day of August , 70. § . 7. [ That they met with force and Arms ] which is so great a Lye , that the Court had no better cover for it , then to tell the Jury , it was only a piece of Form , urging that the man tried for clipping of money this present Sessions had the same words used in his Indictment . But that this Answer is too scanty , as well as it was too weak to prevail with the Jury ; we desire it may be considered , that the same words may be used more of course , and out of form at one time , then at another : And though we grant they can have little force with any Jury in a Clippers case , for meer Clipping ; yet they are words that give so just a ground of jealousie , nay , that carry so clear an Evidence of illegallity where they are truly proved and affirmed of any Meeting , as that they are the proper Roots from whence do spring those Branches which render an Indictment terrible , and an Assembly truly the terror of the people . § . 8. [ Unlawfully , and tumultuously to disturb the Peace ] which is as true , as what is said before , ( that is , as false ) this will evidently appear to all that consider how lawfull it is to assemble , with no other design then to worship God , and their calling a lawful Assembly an unlawfull one , no more makes it so , then to say Light is darkness , black is white , concludes so impudent a falsity true . In short , because to worship God can never be a crime , no Meeting or Assembly , designing to worship God , can be unlawfull . Such as go about to prove an unlawfull Assembly , must prove the Assemblers intent not to Worship God , but that no man can do , because no man can know another mans intentions , and therefore its impossible that any should prove such an Assembly unlawful . That is properly an unlawful Assembly , according to the definition of the Law ; when several persons are met together , with design to use violence and to do mischief ; but that Dissenters meet with no such intention , is manifest to the whole World , therefore their Assemblies are not unlawful ; he that hath only right to be worshipped , which is God , hath only right to institute how he will be worshipped ; and such as worship him in that Way they apprehend him to have instituted , are so far from being unlawful Assemblers , that therein they do but express the duty they owe to God. [ Tumultuously ] Imports as much as Disorderly , or an Assembly full of Noise , Bussle , and Confusion , using force and violence , to the injury of Persons , Houses , or Grounds . But whether Religious Dissenters , in their peaceable Meetings , therein desiring , and seeking nothing more then to express that duty they owe to God Almighty , be a Tumultuous action , or meetting in the sence exprest ( and which is the very definition of the Law ) will be the question . Certainly such as call these Meetings tumultuous , as to break the peace , offer the greatest violence to common words , that can be well imagined ; for they may as rightly say , such persons meet adulterously , thievishly , &c. as to affirm they meet tumultuously , because they are as truly applicable ; in short , such particulars , as are required to prove them such Meetings in Law , are wholly wanting . § . 9. [ To the disturbance of the peace ] If the disturbance of the peace be but matter of form with the rest , as is usually pleaded ; leave out this matter of form and then see what great matter will be left . Certainly such Assemblies , as are not to the breach and disturbance of the peace , are far from being unlawful or tumultuary : but if the peace be broken by them , how comes it the evidence was so short ? We cannot believe it was in favour of the Prisoners . This may shew to all the reasonable World , how forward some are , to brand innocency with hateful Names , to bring a suspition , where there was none deserved . § . 10. [ That the said Penn and Mead met by agreement before hand made . ] But if persons that never saw each other , nor converse together , neither had correspondence by any other hand , cannot be said to be agreed , to any action , before it be done ; then the Prisoners were far from an Agreement ; for they had never Seen , Converst , nor Corresponded , directly , nor indirectly , before the Officers came to disturb the Assembly : We well know how far they would have stretcht the word , Agreement , or Conspiracy ; but God who brings to nought , the Counsels of the wicked , prevented their cruel designs . § . 11. [ That William Mead did abet the said William Penn in preaching . ] No man can be said to abet another , whilst they are both unknown to each other , especially in this case , where abetting follows agreeing , and agreeing supposes fore-knowledge . Nay , the word abet in Law signifies to command , procure or counsel a person , which W. Mead , could not be said to do , in reference to W. Pen , they being so great Strangers one to another , and at so great a distance ; for the Evidence proves that he was with Lievtenant Cook , and Lievtenant Cook swears he could not make his way to W. Penn , for the Croud . § . 12 [ That W. Penn ' s Preaching and speaking caused a great co 〈…〉 and tumult of People , to remain and continue a long time in the 〈…〉 . ] But this is so improbable to believe , that the very nature of a tumult admits of no such thing as preaching ; but implies a disorderly multitude , where all may be said to speak , rather then any to hear . § . 1. [ In contempt of the King and his Laws . ] They are so sar from contemning the King and his Laws , that they are obleiged and constrained by their own principles , to obey every Ordinance of man for the Lords sake , but not against the Lord for mans sake , which is the question in hand . Besides , their continuance there , was not in contempt , but by the permission of the chief Officer present , that came there by the Kings authority ; nor is it for the honour of the King that such persons should be said to act in contempt of his Laws , as only meet to honour God and his Laws . § . 2. [ And to the great disturbance of the Kings peace . ] It is far from disturbing and breaking the Kings peace for men peaceably to meet to worship God ; for it is then properly broken and invaded , when force and violence are used , to the hurt and prejudice of Persons and Estates ; or when any thing is done that tends to the stirring up of Sedition , and begetting in people a dislike of the civil Government : But that such things are not practised by us in our Assemblies , either to offer violence to mens Persons and Estates , or to stir up People to Sedition , or dislike to the civil Government , is obvious to all that visit our Assemblies . § . 3. [ To the great terror and disturbance of the Kings leige people and Subjects , and to the evil example of all others in the like case offending , against the Kings peace , his Crown , and Dignity . ] Were these black Criminations as true as they are wretchedly false , we should give as just an occasion , to loose our Liberties , as our cruel Adversaries , are ready to take any to deprive us unjustly of them , O! How notorious is it to all sober people , that our manner of life is far from terrifying any ; and how absurd to think that naked men ( in the generality of their conversation , known to be harmless and quiet ) should prove a terror or disturbance to the people ; certainly , if any such thing should be in the time of our Meetings , it is brought with the cruelty and barbarous actions of your own Souldiers ; they never learned by our example to beat , hale before Magistrates , fine , and imprison for matters relating to Gods Worship ; neither can they say , we are their presidents ; for all those Adulterous , Prodigal , Lascivious , Drunken , Swearing , and Prophane acts , they dayly commit , and esteem rather occasion of brag and boast , then forrow and repentance : No , they need not go so far , they have too many ( God Almighty knows ) of their own Superiors for their example . § . 4. But we can never pass over with silence , nor enough observe the detestible juggle of such Indictments , which we require all English and Conscientious men to mind , as they value themselves in the like occasions . How little a grain of fact was proved , yet how spatious an Indictment was made ? had it related to the evidence , the bulk had been excusable ; but when it only swelled with malicious scaring Phrases , to suggest to the people , that they were the meerest Villains , the most dangerous Persons , and designing mutually the subversion of the Laws , and breach of the peace , to the terrifying of the People , &c. Who can choose but tell them of their Romance-Indictment , that is so forged , as it truly merits another against it self . This they childishly call Form ; but had an Italian or other Stranger been in Court , he would have judged it matter of fact , as thinking it unworthy of a Kings Court , to accuse men in terms , not legally , truly , or probably due to the fact , they really had committed ; as well as that no Court would practise it , but that which loved to deprive men of their Liberties , and Lives , rather then to save them ; Nolens Volens . § . 5. Had their cruelty and juggle ended here it self , they would have spared us the pains of any further observation . But that which we have to add , on the Prisoners behalf , renders their actions so abominable , in the sight of Justice , that all honest and ingenious hearts must needs abhor their base snares . They tell the Jury , That being but Judges of fact only , they were to bring the Prisoners in guilty ( that is of the fact ) at their peril ; and it was the part of the Bench , to judge what was Law : So that if the Jury had brought them in Guilty , without any further additional explanation ( though intentionally they meant only of the fact proved by evidence ) yet the Bench would have extended it to every part of the Indictment , and by this impious delusion , to have perjured a well meaning Jury , and have had their barbarous ends upon the innnocent Prisoners . But the Jury better understanding themselves brought in Will. Penn guilty of the fact proved , namely , That he was speaking to some people met in Gratious-Church-Street , but not of an unlawful Assembly , so circumst antiated ( the mention of which stabbed their design of moulding the general answer of guilty , to their own ends , to the heart ) nor indeed could they do otherwise ; for as well the Jury as Prisoners , were denyed to have any Law produced , by which they might measure the Truth of the Indictment , and guilt of the fact . But because the Recorder would or could not ( perhaps t is so long since he read Law that he may have forgotten it ) we shall perform his part , in shewing what is that common Law of the Land , which in general , he said , they were Indicted for the breach of , and which indeed if rightly understood , is the undoubted Birth-right of every English-man ; yea , the Inheritance of Inheritances , Major Haeridit as venit unicuique nostrum a Jure , et Legibus , quam a Parentibus . Cook Instit . 2. 56. § . 6. All the various kinds or models of Government , that are in the World , stand either upon Will and Power , or Condition and Contract , the first , rule by men , the second , by Laws : It is our happiness to be born under such a constitution , as is most abhorrent in it self , of all arbitrary Government , and which is , and ever has been , most choice and careful of her Laws , by which all Right is preserved . § . 7. All Laws are either Fundamental , and so immutable ; or Superficial and so alterable . By the first we understand such Laws , as injoyn men to be just , honest , vertuous ; to do no wrong , to kill , rob , deceive , prejudice none ; but to do , as one would be done unto ; to cherish good , and to terifie wicked men ; in short , universal Reason , which are not subject to any revolutions , because no emergency , time , or occasion can ever justifie a suspention of their execution , much less their utter Abrogation . § . 8. By Superficial Laws we understand , such Acts , Laws , or Statutes ; as are suited to present occurrances ; and which may as well be abrogated , for the good of the Kingdom , as they were first made for it . For instance , those Statutes , that relate to Victuals , Cloaths , and Places of Trade , &c. which have ever stood whilst the reason of them was in force , but when that benefit , which once redounded , sell by cross occurrances , they ended according to that old maxime , Cessante ratione Legis , cessat Lex ; but this cannot be said of Fundamental Laws , Till Houses stand without their Foundations , and English man-kind wholly cease to be , which brings close upon the point . § . 9. There is not any Country , that has more constantly exprest her care and deep solicitude , to the preservation of her fundamental Laws , then the English Nation ; and though the evil of some particular times and persons have endeavoured an utter Abolition of those excellent Fundamentals , which we have before defined and defended from any just reason of revolution ; yet God Almighty , who is always concerned to avenge the cause of Justice , and those excellent good Laws , by which it is upheld , has by his providence befool'd their contrivances , & basfled their attempts , by bringing their designs to naught , and their persons frequently to condign punishment and disgrace , their Age no Antiquary living can assure us , unless they say , As old as Reason it self ; but our own Authors are not lacking to inform us , that the Liberties , Properties and Priviledges of the English Nation are very ancient . § . 10. For Hern in his Mirror of Justice ( writ in Edward the first 's time ) Fol. 1. tells us , That after God had abated the Nobility of the Britans , he did deliver the Realm to men more humble and simple , of the Countries adjoyning , to wit , the Saxons , which came from the parts of Almaign to conquer this Land , of which men there were forty Soveraigns , which did rule as Companions ; and those Princes did call this Realm England , which before was named the greater Britan : These , after great wars , tribulations and pains , by long time suffered , did chuse a King to raign over them , to govern the people of God , and to maintain and defend their persons , and their good in quiet , by the Rules of Right , and at the beginning they did cause him to sware to maintain the holy Christian Faith , and to guide his people by Right , with all his power , without respect of persons , and to observe the Laws : And after when the Kingdom was turned into an Heritage , King Alfred , that governed this Kingdom about an hundred seventy one years before the Conquest , did cause the great men of the Kingdom to assemble at London , and there did ordain for a perpetual usage , That twice in the year , or oftner , if need should be , in time of Peace , they should assemble at London in Parliament ; for the Government of Gods People , that men might live in quiet and receive right by certain usages and holy Judgments . In which Parliament ( saith our Author ) the Rights and Prerogatives of the Kings and of the Subjects are distinguished and set apart ; and particularly by him expressed , too tedious here to insert ; amongst which Ordiances we find , That no man should be imprisoned , but for a capital Offence . And if a man should detain another in Prison , by colour of right ( where there was none ) till the party imprisoned died ; he that kept him in Prison should be held guilty of murder , as you may read pag. 33. And pag. 36. He is declared guilty of Homicide , by whom a man shall die in prison , whether it be the Judges ; that shall too long delay to do a man right , or by cruelty of Goalers , or suffering him to die of Famine ; or when a man is adjudged to do pennance , and shall be surcharged by his Goaler with Irons , or other pain , whereof he is deprived of his life . And p. 149. That by the antient Law of England , it was Fellony to detain a man in prison , after sufficient Bale offered ; where the party was plevisable ; every person was plevisable , but he that was appealed of Treason , Murder , Robbery or Burglary , pag. 35. None ought to be put in common Prisons , but only such as were ATTAINTED , or principally APPEALED or INDICTED of some capital Offence , or ATTAINTED of false or wrongfull Imprisonment ; so tender have the ancient Laws and Constitutions of this Realm been of the Liberty of their Subjects persons , that no man ought to be Imprisoned , but for a Capital Offence , as Treason , Murder , Robbery , or Burglary . § . 11. Nor is Lambard short in his excellent translation of the Saxon Laws , from King Ina's time , 712. to Hen. 3. 1100. In describing to us the great Obligation , and strong Condition , the people were wont to put upon their Kings , To observe the ancient fundamental Laws , and free Customs of this Land , which were handed down from one Age to another . And in the 17th Chap. of Edw. the Confessors Laws , the mention there made of a Kings duty is very remarkable , That if he break his Oath , or performed not his Obligation ( Nec nomen Regis in eo constabit ) The same Lambard further tells us , that however any may affirm William of Normandy to be a Conquerer ; He was received by the people as Edwards Successor , and by solemn Oath taken , to maintain unto them the same Laws that his Kinsman Edward the Confessor did ; this doctrine remained in the general , unquestioned , to the reign of King John , who imperiously thought that Voluntas Regis and not salvus Populi , was suprema Lex , or the Kings will was the supream Law , and not the Peoples preservation ; till the incensed Barons of that time , betook themselves to a vigorous defence of their antient Rights and Liberties , and learnt him to keep those Laws by a due restraint and timely compulsion , which his former invasion of them evidenced to the World he would never have done willingly . § . 12. The Proposals and Articles of agreement , with the Pledges given to the Barons , on the behalf of the People by the King , were confirm'd in Hen. the 3ds . time , his Son and Successor ; When the abused , slighted , and disregarded Laws , by his Father , were thought fit to be reduced to record , that the people of England might not forever after be to seek for a written recorded Law , to their defence and security ; for , Misera servitus est ubi jus est vagum aut incognitum ; and so we enter upon that grand Carter of Liberty and Priviledge , in the Cause , Reason , and End of it . § . 1. We shall first rehearse it , so far as we are concerned ( with the formalities of Grant and Curse ) and shall then say something as to the Cause , Reason and End of it . A Rehersal of the Material Parts of the Great Charter of England . HEnry , by the Grace of God , King of England , &c. To all Arch-Bishops , or Earls , Barons , Sheriffs , Provosts , Officers , and to all Bailiffs , and our faithfull Subjects , who shall see this present Charter , greeting . Know ye that we unto the honour of Almighty God , and for the Salvation of the Souls of our Progenitors , and our Successors , Kings of England , to the advancement of holy Church , and amendment of our Realm , of our meer and free will have given and granted to all Arch-Bishops , &c. and to all Free-men of this our Realm , these Liberties under-written , to be holden and kept in this our Realm of England for evermore . We have granted and given to all Free-men of our Realm , for us and our Heirs for evermore , these Liberties under-written , to have and to hold to them , and to their Heirs , of us and our Heirs fore-nam'd . A Free-man shall not be Amerced for a smal fault , but after the quantity of the fault . And for a great fault , after the manner thereof , saving to him his Contenements or Free-hold . And a Merchant likewise shall be amerced , saving to him his Merchandize ; and none of the said Amercements shall be assessed , but by the Oath of good and honest men of the Vicinage . No Free-man shall be taken , or imprisoned , nor be disseized of his Free-hold , or Liberties , or free Customs , or be Out-lawed , or Exiled , or any other wayes destroyed ; nor we shall not pass upon him , nor condemn him , but by lawfull judgement of his Peers , or by the Law of the Land ; we shall sell to no man , we shall deny nor defer to no man either Justice or Right . And to all these Customs , Liberties aforesaid , which we have granted to be holden within this our Realm , as much as appertaineth to us and our Heirs we shall observe ; and all men of this our Realm , as well Spiritual as Temporal , ( as much as in them is ) shall observe the same against all persons in likewise . And for this our Gift , and Grant of these Liberties , and for other contained in our Charter of Liberties of our Forrest , the Arch-Bishops , Bishops , Abots , Priors , Earls , Barons , Knights , Free-holders , and other our Subjects , have given unto us the fifteenth pars of all their moveables ; And we have granted unto them on the other part , that neither we , nor our Heirs , shall procure or do any thing whereby the Liberties in this Charter contained shall be infringed or broken ; and if any thing be procured by any person contrary to the Premises , shall be had of no force nor effect . These being Witnesses , Boniface Arch-Bishop of Canterbury , &c. We ratifying and approving those Gifts and Grants aforesaid , confirm and make strong all the same , for us and our Heirs perpetually , and by the Tenor of these Presents do renew the same willingly ; and granting for us and our Heirs , that this Charter , in all and singular his Articles for evermore shall be stedfastly , firmly , and inviolably observed . And if any Article in the same Charter contained , yet hither to peradventure hath not been observed , nor kept , we will , and by our Authority-Royal command , from henceforth firmly they be observed . Witness , &c. The Sentence of Curse given by the Bishops , with the Kings consent , against the Breakers of the great Charter . IN the year of our Lord 1253. the third day of May , in the great Hall of the King at Westminster , in the presence , and by the consent of the Lord Henry , by the Grace of God , King of England , and the Lord Richard , Earl of Cornwall , his Brother ; Roger Bigot , Earl of Norfolk Marshal of England ; Humphr● , Earl of Hereford ; Henry , Earl of Oxford ; John , Earl Warren ; and other Estates of the Realm of England : We Boniface , by the mercy of God , Arch-Bishop of Centerbury , Primate of England , F. of London , H. of Ely , S. of Worcester , E. of Lincoln , W. of Norwich , P. of Hereford , W. of Salesbury , W. of Durham , R. of Excester , M. of Carlile , W. of Bath , E. of Rochester , T. of St Davids , Bishops , apparelled in Pontificals , with Tapers burning , against the Breakers of the Churches Liberties , and of the Liberties and other Customs of this Realm of England , and namely these which are contained in the Charter of the common Liberties of England , and Charter of the Forrest , have denounced Sentence of Excommunication in this form , by the Authority of Almighty God , the Father , the Son , and the Holy Ghost , &c. of the bl●ssed apostl●s Peter and Paul , and of all Apostles , and of all Martyrs , of bl●ssed Edw. King of England , and of all the Saints of Heaven , We Excommunicate and Accurse , and from the benefits of our holy Mother the Church we sequester all those that hereafter willingly and maliciously deprive or spoil the Church of her Right ; and all those that by any craft , or willingness , do violate , break , diminish , or change the Churches Liberties , and free Customs contained in the Charters of the common Liberties , and of the Forrest , granted by our Lord the King to Arch-Bishops , Bishops , and other Prelates of England , and likewise to the Earls , Barons , Knights , and other Free-holders of the Realm ; and all that secretly and openly , by deed , word or counsel do make Statutes , or observe them being made , and that bring in Customs to keep them , when they be brought in , against the said Liberties , or any of them , and all those that shall presume to judge against them ; and all and every such person , before mentioned , that ●iningly shall commit any thing of the premises , let them well know that they incur the aforesaid Sentence ipso facto . A Confirmation of the Charters and Liberties of England , and of the Forrest , made the twenty fifth year of Edward the first . EDward , by the Grace of God , King of England , Lord of Ireland , Duke of Guyan , to all those that these present Letters shall hear or see , greeting . Know ye that we to the honour of God , and to the profit of our Realm , have granted for us , and our Heirs , and the Charter of Liberties , and the Charter of Forrest , which were made by common assent of all the Realm , in the time of King Henry our Father , shall be kept in every point , without breach ; and we will that the same Charters shall be sent under our Seal , as well to our Justices of the Forrest , as to others , and to all Sheriffs of Shires , and to all our other Officers , and to all our Cities throughout the Realm , together with our Writs , in the which it shall be contained , that they cause the aforesaid Charters to be published , and to declare to the People , that we have confirmed them in all points ; and that our Justices Sheriffs , Mayors , and other Ministers , which under us have the Laws of our Land to guide , shall allow the same Charters pleaded before them in Judgment , in all their points ; that is , to wit , the great Charter , as the Common Law , and the Charter of our Forrest , for the Welch of our Realm . And we will , that if any judgment be given from henceforth , contrary to the points of the Charter aforesaid , by the Justices , or by any other of our Ministers that hold Plea before them , against the points of the Charters , it shall be undone , and holden for naught . And we will that the same Charters shall be sent under our Seal to Cathedral Churches throughout our Realm , there to remain , and shall be read before the people two times by the year . And that all Arch-bishops and Bishops shall pronounce the Sentence of Excommunication against all those that by word , deed or counsel do contrary to the foresaid Charters , or that in any point do break or undo them ; And that the said Curses be twice a year denounced and published by the Prelates aforesaid ; and if the same Prelates , or any of them be remiss in the denunciation of the said Sentences , the Arch-bishops of Canterbury and York , for the time being , shall compel and distrain them to the execution of their duties in form aforesaid . The Sentence of the Clergy against the Breakers of the Articles above-mentioned . IN the Name of the Father , the Son , and the Holy Ghost , Amen : Whereas our Soveraign Lord the King , to the honour of God , and of holy Church , and for the common profit of the Realm , hath granted for him , and his Heirs for ever , these Articles above written : Robert Arch-Bishop of Canterbury , Primate of all England , admonished all his Province once twice and thrice , because that shortness will not suffer so much delay , as to give knowledge to all the People of England of these presents in writing : We therefore enjoyn all Persons , of what estate soever they be , that they , and every of them , as much as in them is , shall uphold and maintain these Articles granted by our Soveraign Lord the King , in all points : And all those that in any point do resist , or break , or in any manner hereafter Procure , Counsel , or in any wise Assent to Testifie or Break those Ordinances , or go about it , by word or deed , openly or privily , by any manner of pretence or colour ; we , the aforesaid Arch Bishop , by our Authority in this Writing expressed , do Excommunicate and Accurse , and from the Body of our Lord Jesus Christ , and from all the Company of Heaven , and from all the Sacraments of Holy Church do sequester , and exclude . We may here see , that in the obscurest Times of sottish Popery , they were not left without a sence of Justice , and the necessity of Liberty and Property , to be inviolably enjoy'd which brings us to the cause of it . 1st The cause of this famous Charter , was , as we have already said , the Incroachments that were made by several Ministers of precedent Kings , that almost became Customary , and which had neer extinguisht the free Customs due to Englishmen : How great care it cost our Ancestors , it unbecomes us to ignore , or by our silence to neglect ; It was that Yoak and Muzzle , which failed not to dis-able many rageing Bears , from entring the pleasant Vineyard of English-Freedoms , that otherwise would not have left a fruitful Vine in being . Anon we may give the Reader an account of some , with their Wages as well as Works . 2d The Reason of it , is so great , that it seems to be its own . It is the very Image and Expression of Justice , Liberty , and Property ; Points of such eminent importance , as without which no Goverment can be said to be reasonable , but arbitrary and tyrannical . It allows every man that liberty God and nature have given him , and the secure possession of his property , from the In-road or Invasion of his Neighbour , or any else of that constitution . It justifies no man in a fault , only it provides equal and just ways to have the Offender tryed ; considering the malice of many Prosecutors , and the great value of Liberty and Life . 3d The End of it was the most noble of any earthly projection , to wit , The refixing of those shaken Laws , held for many hundred years , by constant claim , that they living might be re-enstated in their primitive liberty , and their posterity secured in the possession of so great a happiness . Amongst those many rich Advantages , that accrew to the free People of England , from this great Charter ; and those many confirmatory Statutes of the same , we shall present the Reader with the sight of some few , that may most properly fall , under the consideration and inquiry of these present times , as found in our Common Law Books . 1st [ That every English-man , is born free . ] 2d [ That no such Free-man shall be taken , attached , assessed , or imprisoned , by any Petition or Suggestion to the King or his Counsel , unless by the indictment or presentment of good and lawful men where such deeds be done ] 5 Edw. 3. Chap. 9. 25 Edw. 3. Chap. 4. 17 R. 2. Chap. 6 Rot. Parl. 42 Edw. 3. Cook 2 Inst . 46. 3d [ That no Free-man shall be diseized of his Free-hold or Liberties , or free Customs , &c. Hereby is intended , saith Cook , That Lands , Tenements , Goods , and Chattels ] shall not be seised into the Kings hands contrary to this great Charter , &c. 43. Ass . pag. 12. 43 Edw. 3. Cook 2 Inst . 32. Neither shall any such Free-man be put from his Livelyhood without answer , Cook 2. Inst . 47. 4ly [ That no Free-man shall be out-lawed . ] unless he shroud and hide himself voluntarily from the Justice of the Law , 2 & 3 Phil. & Mar. Dier . 114. 145. 5ly [ No Free-man shall be exiled . ] Cook says there are but two Grounds , upon which any man may be exiled . One by Act of Parliament ( supposing it not contrary to the great Charter . ) — The other in case of abjuration , for Fellony by the Common Law , &c. Cook 2. Inst . 47. 6ly [ No Free-man shall be destroyed , that is , he shall not be fore-judged , of Life , Limb , Dis-herited , or put to Torture , or Death . ] every oppression against Law , by colour of any usurped Authority , is a kind of Destruction , and t is the worst Oppression that is done by colour of Justice . Cook Institu . 2. 48. 7th [ That no Free-man shall be thus taken , or imprisoned , diseized , out-lawed , exiled , or destroyed of his Liberties , Free-holds , and free Customs , but BY THE LAWFUL JUDGMENT OF HIS PEERS ] ( vulgarly called Jury ) So that the Judgment of any fact or person , is by this fundamental Law , referred to the Brests , and Consciences of the Jury ; It s rendred in Latine PER LEGALE JUDICIUM , that is Lawful Judgment ; from whence it is to be observed , that the Judgment must have Law in it , and be according to Law , which cannot be where they are not Judges , how far the fact is legal , or the contrary ; Judicium quasi Juris Dictum [ The Voice of Law and Right ] And therefore is their Verdict not to be rejected , because it is supposed to be the Truth , according to their Consciences : For Ver dictis from vere dictum , is quasi dictum veritatis [ or a true saying or judgment ] 9 Hen. 3. 29. Cook Inst . 1. 39. Iust 4. 207. Cook says , that by the word LEGALE three things are implyed . ( 1st ) That this was by Law , before the Statute , and therefore this Statute but declaratory of the antient Law. ( 2d ) That their Verdict must be legally given ; wherein is to be observed . ( 1st ) The Jury ought to hear no Evidence , but in the hearing and presence of the Prisoner . ( 2d ) That they cannot send to ask any Question in Law of the Judges , but in the presence of the Prisoner , for , de facto Jus oritur . ( 3d ) The Evidence produced by the Kings Counsel , being given , the Judges cannot collect the Evidence , nor urge it by way of charge to the Jury , nor yet confer with the Jury about the Evidence , but in the presence of the Prisoner . Cook Inst . 2. 49. 8th [ Or by the Law of the Land ] It is a Synonimous expression , importing no more then by a Tryal of Peers or a Jury ; for it is sometimes rendred not ( or ) disjunctively , but ( and ) which is connectively , however , it can never signifie any thing contrary to the old way of trying by Peers ; for then it would be connected to a contradiction . Besides Cook well observes , that in the 4th Chap. of the 25th Edw. 3 , Per Legem Terrae , imports no more , then a Tryal by due process , and writ Original at Common Law , which cannot be without a Jury ; therefore , Per Judicium parum & per Legem Terrae , signifie the same priviledge unto the people . Cook Inst . 2. pag. 50. Thus have we presented you with some of those maxims of Law , dearer to our Ancestors , then life ; Because they are the defence of the Lives and Liberties of the People of England ; it is from this 29th Chap. of the great Charter ; Great , not sor its Bulk , but the Priviledges in it ; as from a spatious Root , that so many fruitful Branches of the Law of England springs , if Cook may be credited . But how sacred soever they have been esteemed , and still are by noble and just minds , yet so degenerate are some , in their proceedings , that conscious to themselves of their baseness , they will not dare stand the touch of this great Charter , and those just Laws grounded upon it , of which number we may truly rank the Mayor , and Recorder of London , with the rest of their wise Companions , in their late Sestions , at the Old Baily , upon the occasion of the Prisoners . First , The Prisoners were taken , and imprisoned without presentment of good and Lawful men of the Vicinage , or the Neighbourhood , but after a military and tumultuous manner , contrary to the grand Charter . 2d They refused to produce the Law upon which they proceeded ; leaving thereby the Prisoners , Jury , and whole Assembly in the dark . 3d They refused the Prisoners to plead , and directly withstood that great Priviledge , mentioned in the first Chap. 25 Edw. 1. Where all Justices , Mayors , Sheriffs , and other Ministers , that have the Laws of the Land , to guide them , are required to allow the said Charter to be pleaded in all its points , and in all causes that shall come before them in Judgment . For no sooner did William Penn , or his Fellow Prisoner , urge upon them the great Charter , and other good Laws , but the Recorder cryed , Take him away , take him away , put him into the Bale-dock or Hole ; From which the Recorder can never deliver himself , unless it be by avowing ; the Laws are not his Guide , and therefore does not suffer them to be pleaded before him in Judgment . 4ly They gave the Jury their charge , in the Prisoners absence , endeavouring highly to insence the Jury against them . 5ly The verdict being given , which is in Law , DICTUM VERITATIS , ( The voice of Truth her self ) ( because not sutable to their humor ) They did five times reject it , with many abusive imperious , and menacing Expressions to the Jury , ( such as no president can afford us ) as if they were not the only constituted Judges by the Fundamental Laws of the Land , but meer Cyphers only to signifie something behind their Figures . 6ly Though the Prisoners were cleared by their Jury , yet were they continued for the non-payment of their Fines , laid upon them , for not pulling off their Hats , in which the Law is notoriously broken . ( 1st ) In that no man shall be amerced , but according to the Offence ; and they have fined each forty Marks . ( 2d ) They were not merced by any Jury , but at the will of an incensed Bench. Besides there is no Law against the Hat , and where there is no Law there can be no Transgression , and consequently no legal Amercement or Fine 9 H. 3. Chap. 14. But how the Prisoners were trapanned into it , is most ridiculous on the side of the contrivers , that finding their Hats off , would have them 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 a piece . 7ly Instead of accepting their Verdict as good in Law , and for the true decission 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 Verdict , the Court did most illegally , and tyrannically fine and imprison them , as in the Tryal was exprest . And that notwithstanding the late just resentment of the House of Commons , in Judge Keelings Case , where they resolved , that the president and practice of Fining , and Imprisoning of Juries , for their Verdicts , were illegal . And here we must needs observe two things . ( 1st ) That the Fundamental Laws of England cannot be more slighted , and contradicted in any thing ( next Englishmens being quite destroyed ) then in not suffering them to have that equal medium , or just way of tryal , that the same Law has provided , which is by a Jury . ( 2d ) That the late proceeding of the Court , at the Old Baily , is an evident Demonstration , that Juries are now but meer Formality , and that the partial charge of the Bench must be the Verdict of the Jury ; for if ever a Rape were attempted on the Consciences of any Jury , it was there . And indeed the ignorance of Jurors of their authority by Law , is the only Reason of their unhappy cringing to the Court , and being scared into an Anti-Conscience Verdict , by their lawless threats . But we have lived to an Age , so deboist from all humanity and reason , as well as Faith and Religion , that some stick not to turn Butchers to their own Priviledges , and Conspirators against their own liberties . For however Magna Charta had once the reputation of a sacred unalterable Law , and few hardned enough , to incur and bear the long Curse , that attends the Violaters of it , yet it is frequently objected now , that the benefits there designed are but temporary , and therefore lyable to alteration , as other Statutes are . What Game such Persons play at , may be lively read , in the attempts of Dyonisius , Palaris , &c. which would have Will and Power be the peoples Law. But that the Priviledges due to English-men , by the great Charter of England , have their Foundation in Reason and Law ; and that those new Cassandrian wayes , to introduce Will and Power deserve to be detested by all persons professing sence and honesty , and the least Allegiance to our English Government ; we shall make appear from a sober consideration of the nature of those Priviledges contained 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 disprofit in the discontinuance of Liberty and Property , therefore there can be no just ground of alteration . ( 2 ) No one English-man is born Slave to another , neither has the one a right to inherit the sweat and benefit of the others labour ( without consent ) therefore the Liberty and Property of an 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 then that which is partial , but to take away the LIBERTY and PROPERTY 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 destroyed , there must alwayes be a state of force and war , which however pleasing it may be unto the Invaders it will be esteemed intollerable by the Invaded , who will no longer remain subject in all humane probability , then while they want as much power to free themselves , as their Adversaries had to enslave them : The troubles , hazards , ill-consequences , and illegality of such attempts , as they have declined by the most prudent in all Ages , so have they proved most uneasie to the most savage of all Nations , who first or last have by a mighty Torent freed themselves , to the due punishment and great infamy of their Oppressors : such being the advantage , such the disadvantage which necessarily 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 then their preservation . No Free-men shall be taken , or imprisoned , or be disseized of his Free-hold , or Liberties , or free Customs , or be out-lawed , or exiled , or any other wayes destroyed ; nor we will not pass upon him , nor condemn him , but by lawfull judgement of his Peers , &c. A Free-man shall not be amerced for a small fault , but after the manner of the fault , and for a great fault , after the greatness thereof , and none of the said amercement shall be assessed , but by the Oath of good and lawfull 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 judgment of theirh onest Neighbours , according to the Law of the Land ; which is lawfull Judgment . It is easie 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 . Thirdly , Now no man is to be amerced , or punished , but suitably to his fault ; whilst they would make it sutable to their revengefull minds . Fourthly , Whereas the Power of Judgment lies in the Bre●sts and Consciences of twelve honest Neighbours ; they would have it at the discretion of mercenary Judges : To which , we cannot chuse but add , That such Discourses manifestly strike at this present constitution of Government ; for it being founded upon the Great Charter ( which is the Antient Common Law of the Land ) as upon its best Foundation ; none can design the concelling 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 restauration of our antient English Laws , by the Great Charter , was the soveraign Balsom which cured our former breaches , so doubtless will the continuation of it , prove an excellent prevention to any future disturbances . But some are ready to object , That the Great Charter consisting as well of Religions as civil Rights , the former having received an alteration , there is the same reason , why the latter may have the like . 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 Worship , which is as various , as the unconstant apprehensions of men ; but the other is matter of so immutable right , and justice , that all Generations ( however differing in their religious Opinion ) have concentered , and agreed to the certainty , equity , and indispensable necessity 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 remained , as the stable right , of every individual English-man , purely as an English-man . Otherwise , If the civil Priviledges of the People , had fallen with the pretended Religious Priviledges , of the Popish Tyranny , at the first Reformation ( as must needs be suggested by this Objection ) our case had ended here , that we had obtained a Spiritual Freedom , at the cost of a Civil bondage ; which certainly was far from the intention of the first Reformers , and probably an unseen consequence , by the Objectors to their idle Opinion . In short , there is no time , in which any man may plead the necessity of such an action , as is unjust 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 confirmed and maintained to the People . And consequently , no person may legally attempt the subversion , or extenuation of the force of the Great Charter . We shall proceed to prove from instances out of both . 1st Any Judgment given contrary to the said Charter , is to be undone , and holden for nought . 25 Edw. 1. Chap. 2. 2d Any that by Word , Deed , or Counsel , go contrary to the said Charter , are to be excommunicated by the Bishops : And the Arch-Bishops of Canterbury and York , are bound to compel the other Bishops to denounce Sentence accordingly , in case of their remissness , or neglect ; which certainly hath relation to the State , rather then the Church ; since there was never any necessity of compelling the Bishops to denounce sentence in their own case , though frequently in the peoples , 25 Edw. 1. Chap. 4. 3d That the great Charter , and Charter of Forrest , 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 Cook , that famous English Lawyer , said , That albeit Judgments in the King Courts , are of high regard in Law , and Judicia are accounted as Juris Dicta ; yet it is provided by Act 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 saith , That upon the Statute of the 25th Edw. 1. Chapter 1. That this great Charter , and the Charter of Forrest , are properly the Common Law of this Land , or the Law is Common to all the People thereof . 4ly Another Statute runs thus , If any force come to disturb the execution of the Common Law , ye shall cause their bodies to be arrested , and put in Prison ; Ye shall deny no man right by the Kings Letters , nor counsel the King any thing , that may turn to his damage , or disherison . 18 Edw. 3. Chap. 7. Neither to delay right by the great and little Seal . This is the Judges Charge and Oath . 2 Edw. 3. chap. 8. 14 Edw. 3. 14. 11 R. 2. chap. 10. 5ly Such care hath been taken , for the preservation of this great Charer , that in the 25th of Edw. 1. It was enacted , That Commissioners should issue forth , that there should be chosen in every Shire-Court , by the commonalty of the same Shire , three substantial men , Knights , or other lawful , wise , and well disposed persons , to be Justices , which shall be assigned by the Kings Letters , Patents , under the great Seal , to hear and determine ( without any other writ , but only their Commission ) such plaints as shall be made upon all those , that commit , or offend against any point , contained in the aforesaid Charters . 28 Edw. 1. chap. 1. 6ly The necessity of preserving these Charters , hath appeared in nothing more , than in the care they have taken to confirm them ; which as Cook observes , hath been by thirty two Parliaments confirmed , established , and commanded to be put in execution , with the condign punishment they had inflicted upon the Offenders . Cooks Proem , to the second Book of his Inst . 7ly That in the notable Petition of Right , many of these great Priviledges , and free Customs , contained in the aforesaid Charters , and other good Laws , are recited and confirmed , 3 Car. 1. 8ly The late King , in his Declaration , at New-Market , 1641. acknowledged the Law to be the Rule of his Power , By which he doubtless intended Fundamental Laws , since it may be the great advantage of Countries , sometimes to suspend the execution of temporary Laws . Having so manifestly evidenced that venerable esteem , our Ancestors had of that Golden Rule ( the great Charter ) with their deep solicitude , to preserve it , from the defacing of usurpation and faction . We shall proceed to give an account of their just resentment and earnest prosecution against some of those , who in any Age have adventured , to undermine that antient Foundation , by introducing an arbitrary way of Government . 1st , As Juditious Lambard reports in his Saxon Translation ; That the Kings in those dayes , were by their Coronation-Oaths obliged , to keep , the antient fundamental Laws , and Customs of this Land ( of which this great Charter is but declaratory ) so did King Alfred ( reputed the most famous Compiler of Laws amongst them ) give this discovery of his Indignation against his own Judges , for actions contrary to those fundamental Laws , that he commanded the execution of forty of them ; which may be a seasonable Caveat to Judges of our times . 2d Hubert de Burgo , once chief Justice of England ( having advised Edw. 1. in the eleventh year of his reign , ( in his Counsel holden at Oxford ) To cansel this great Charter , and that of the Forrest ) was justly sentenced according to Law , by his Peers , in open Parliament . When the Statute called CONFIRMATIONIS CARTARUM was made ; in the first Chapter whereof , Magna Charta , is peculiarly called , the Common Law , 25 Edw. 1. Chap. 2. 3d The Spencers ( both Father and Son ) for their arbitrary domination , and rash , and evil counsel to Edw. the 2d ( by which be was seduced to break the great Charter ) were banished for their pains , as Cook relates . 4ly The same fate attended Tresillian and Belknap , for their illegal proceedings . 5ly the Breach of this great Charter , was the ground of that exemplary Justice , done upon Empson and Dudley , whose case is very memorable in this point ; For though they gratified Hen. 7. in what they did , and had an Act of Parliament for their Warrant , made the eleventh of his reign ; yet met they with their due reward from the hands of Justice , that Act being against Equity and common Reason , and so no justifiable ground , or Apology , for those frequent abuses , and oppressions of the People , they were found guilty of . Here what the Lord Cook further saith , concerning the matter , There was an Act of Parliament , made in the eleaventh year of King Hen. 7. which had a fair flatteriing Pr●●mble , pretending to avoid divers mischiefs , which were 〈◊〉 The high displeasure of Almighty God. ( 2d ) The great let of the common Law. And ( 3d ) The great Let of the Wealth of this Land. And the purvien of that Act , tended in the execution contrary , EX DIAMETRO . viz. To the high Dispeasure of Almighty God , and the great Let , nay the utter subversion of the common Law , and the great Let of the Wealth of this Land , as hereafter shall appear ; the substance of which Act follows in these words . THat from thenceforth , as well Justices of Assize , as Justices of the Peace , in every County , upon information for the King , before them made , without any Finding or Presentment by Twelve men , shall have full Power and Authority , by their discretion ; and to hear and determine all Offences , as Riots , unlawfull Assemblies , &c. committed and done against any Act or Statute made , and not repeal'd , &c. ( a Case that very much resembles this of our own times . ) By pretext of this Law , Empson and Dudley did commit upon the Subjects , unsufferable Pressure , and Oppressions ; and therefore this Statute was justly , soon after the decease of Hen. 7. repealed , at the next Parliament , after his decease , by the Statute of the 1 H. 8. chap. 6. A good Caveat to Parliaments , to leave all causes to be measured by the Golden and Straight Metwand of the Law , and not to the incertain and crooked Cord of discretion . It is almost incredible to foresee , when any Maxime , or Fundamental Law , of this Realm is altered ( as else-where hath been observed ) what dangerous inconveniences do follow ; which most expresly appeareth by this most unjust and strange Act of the eleventh of H. 7. For hereby , not only Empson and Dudley themselves , but such Justices of Peace ( corrupt men ) as they caused to be authorized , committed most grievous , and heavy Oppressions and Exactions ; grinding the faces of the poor Subjects by penal Laws ( be they never so obsolete , or unfit for the time ) by information only , without any presentment , or tryal by Jury , being the antient Birth-right of the Subject ; but to hear and determine the same , by their discretions ; inflicting such penalty , as the Statute , not repealed imposed . These and other like Oppressions , and Exactions by , or by the means of Empson and Dudley , and their Instruments , brought infinite treasure to the Kings Cofers , whereof the King himself , at the end , with great grief , and compunction , repented , as in another place we have observed . This Statute of the 11th of H. 7. we have recited , and shewed the just inconveniences thereof ; to the end , that the like should never hereafter be attempted in any Court of Parliament ; and that others might avoid the fearful end of those two Time-servers , Empson and Dudley , Qui eorum urstiquijs insistunt , eorum exitus per horrescant . See the Statute of 8. Edw. 4. chap 2. a Statute , of Liveries , an Information , &c. By the discretion of the Judges , to stand as an Original , &c. This Act is desertedly repealed , vide , 12 R. 2. chapter 13. punishment by discretion , &c. vide , 5th of H. 4. Chap. 6 , 8. See the Commission of Sewers ; discretion ought to be thus discribed , Discretio est descernere per Legem ; quid sit justum ; From whence three things seem , most remarkable . First , The great equity and justice of the great Charter , with the high value our Ancestors have most deservedly set upon it . Secondly , The dreadful Maledictions , or Curse , they have denounced upon the Breakers of it ; with those exemplary punishments they have not spared , to inflict upon such notorious Offenders . Thirdly , So hainous a thing was it esteemed of old , to endeavour an enervation , or subversion of these antient Rights and Priviledges , that Acts of Parliaments themselves ( otherwise the most sacred with the people , ) have not been of force enough to secure or defend such persons from condign punishment , who in pursuance of them , have acted inconsistant with our great Charter . Therefore it is , that great Lawyer ; the Lord Cook , doth once more agravate the example of Empson and Dudley ( with persons of the same rank ) into a just caution , as well to Parliaments as Judges , Justices and inferior Magistrates , to decline making , or executing any Act , that may in the least seem , to restring or confirm , this so often avowed and confirmed Great Charter of the Liberties of England , since Parliaments are said to err when they cross it ; the Obeyers of their Acts punished , as Time-serving Transgressors ; and that Kings themselves , ( though enriched by those courses ) have with great Compunction and Repentance , left among their dying words their recantations . Therefore most notable and true it was , with which we shall conclude this present Subject , what the King pleased to observe in a speech to the Parliament , about 1662. ( viz. ) The good old Rules of Law are our best security . The manner of the Courts behaviour towards the Prisoners , and Jury , with their many extravigant expressions , must not altogether slip our observation . ( 1st ) Their carriage to the Jury outdoes all presedents ; they entertained them more like a Pack of Fellons , then a Jury of honest men , as being fitter to be try'd themselves , then to acquit others . In short , no Jury , for many Ages , received so many instances of displeasure and affront , because they prefered not the humor of the Court , before the quiet of their own Consciences , even to be esteemed as perjured , though they had really been so , had they not done what they did . ( 2d ) Their treatment of the Prisoners was not more unchristian , then inhumane , History can scarce tell us of one Heathen Roman that ever was so ignoble to his Captive : what ! to accuse , and not hear them ; to threaten to Bore their tongues , Gag and Stop their Mouthes , Fetter their Leggs , meerly for defending themselves , and that by the ancient fundamental Laws of England too . O Barbarous ! had they been Turks and Infidels , that carriage would have ill become a Christian Court , such actions proving much stronger disswasives , then Argument to convince them , how much the Christian Religion inclines men to Justice and moderation above their dark Idolatry . It is truly lamentable that such occasion should be given , for Intelligence to Forreign Parts , where England hath had the reputation of a Christian Country , by the ill treating of its sober and religious Inhabitants for their consciencious Meetings to worship God. But above all , Dissenters had little reason to have expected this boarish fierceness from the Mayor of London , when they consider his eager prosecution of the Kings Party under Cromwells Government , as thinking he could never give too great a testimony of his Loyalty to that new Instrument , which makes the old saying true , That one Runagade is worse then three Turks . Alderman Bludworth , being conscious to himself of his partial kindness to the Popish Firers , hopes to make amends by his zealous prosecution of the poor Dissenters ; for at the same Sessions he moved to have an Evidence ( of no small quality ) against Harrison , the Friar , sent to Bridewel and whipt , that he was earnest to have the Jury fined and imprisoned , because they brought not the Prisoners guilty , for only worshipping their God : whence it may be easie to observe , That Popish Friars , and Prelatical Persecutors are meer Confederates . But what others have only adventured to stammer at , the Recorder of London , has been so ingenious as to speak most plainly ; or else what means those two fatal Expressions , which are become the talk and terror both of City and Country ? First , in assuring the Jury , That there would be a Law next Session of Paliament , That no man should have the protection of the Law , but such as conformed to the Church : which , should it be as true , as we hope it is false ( and a dishonorable Prophesie of that great Assembly ) the Papists may live to see their Marian dayes out-done by profest Protestants . But surely no English-man can be so sottish , as to conceive that his right to Liberty and Property , came in with his Profession of the Protestant Religion ; or that his natural and humane Rights , are dependant on certain religious apprehensions , and consequently he must esteem it a cruelty in the abstract , that Persons should be denied the benefit of those Laws which relate to civil concerns . who by their deportment in civil affairs , have no wayes transgrest them , but meerly upon an opinion of Faith and matter of Conscience . It is well known that Liberty and Property , Trade and Commerce were in the World long before the Points in difference betwixt Protestants and Dissenters , as the common Priviledges of Mankind ; and therefore not to be measured out by a conformity to this , or the other religious perswasion , but purely as English-men . Secondly , But we should rather choose to esteem this an Expression of heat in the Recorder , then that we could believe a Londons Recorder should say , an English Parliament should impose so much Slavery on the present Age , and entayl it upon their own Posterity ( who for ought they know may be reckoned among the Dissenters of the next Age ) did he not encourage us to believe , it was both his desire and his Judgment , from that deliberate Elogy he made on the Spanish Inquisition , expressing himself much to this purpose : viz. Till now I never understood the reason of the pollicy and prudence of the Spaniards , in suffering the Inquisition amonst them : And certainly it will never be well with us , till some thing like unto the Spanish Inquisition be in England . The gross malignity of which saying , is almost inexpressable : What does this but justifie that Hellish design of the Papists to have prevented the first Reformation ; If this be good Doctrine , then Hoggestrant , the grand Inquisitor , was a more venerable Person then Luther the Reformer . It was an expression that had better become Cajetan the Popes Legate , then Howel , a Protestant Cities Recorder . This is so far from helping to convert the Spaniard , that it is the way to harden him in his Idolatry ; when his abominable cruelty , shall be esteemed prudence , and his most barbarous and exquisite torturing of Truth , an excellent way to prevent Faction . If the Recorder has spake for no more then for himself , it is well ; but certainly he little deserves to be thought a Protestant , and a Lawyer , that put both Reformation and Law into the Inquision : There being nothing more destructive of the fundamental Laws and Liberties of England , and that noble design of primitive Reformation ; then the Arbitrary Power and terrifying Raks of the Spanish Inquisition . And doubtless the supream Governours of the Land , are highly oblieged in Honour and Conscience ( in discharge of their Trust to God and the Peoples to take these things into their serious consideration , as what is expected from them , by those who earnestly wish theirs and the Kingdoms safety and prosperity . A Postscript . The Copy of Judge Keeling's Case , taken out of the Parliament Iournal . Die Mercurij , 11th Decembris , 1667. THe House resumed the Hearing of the rest of the Report touching the matter of Restraints upon Juries ; and that upon the examination of divers Witnesses , in several Clauses of restraints , put upon Juries , by the Lord Chief Justice Keeling ; whereupon the Committee made their Resolutions , which are as followeth . First , That the proceedings of the Lord Chief Justices , in the Cases now reported , are Innovations , in the Trial of men for their Lives and Liberties ; and that he hath used an Arbitrary and Illegal power , which is of dangerous consequence to the Lives and Liberties of the people of England , and tends to the introducing of an Arbitrary Government . Secondly , That in the place of Judicature , the Lord Chief Justice hath under-valued , vilified , and contemned Magna Charta , the great preservers of our Lives , Freedom , and Propertie . Thirdly , That he be brought to Trial , in order to condign punishment , in such manner as the House should judge most fit and requisite . Die Veneris , 13th Decembris , 1667. Resolved , &c. That the Presedents and Practice of Fining or Imprisoning , Jurors , for Verdicts , is Illegal . Now whether the Justices of this Court , in their Proceedings ( both towards the Prisoners , and Jury ) have acted according to Law , to their Oaths and Duty , and to do Justice without partiality ? whereby Right might be preserved , the Peace of the Land secured , and our Ancient Laws established ; or whether such Actions tend not to deprive us of our Lives and Liberties , to rob us of ( our Birth-right ) the Fundamental Laws of England ? and finally to bring in an Arbitrary and Illegal power to usurp the Benches of all our Courts of Justice , we leave the English Reader to judge . Certainly , there can be no higher affront offered to King and Parliament , then the bringing their Reputations into suspition with their People , by the irregular actions of subordinate Judges : And no Age can parallel the carriage of this Recorder , Mayor , &c. Nor can we think so ignobly of the Parliament , as that they should do less then call these Persons to account , who fail'd not to do it to one less guilty , and of more repute , ( to wit ) Judge Keeling : For if his behaviour gave just ground of jealousie , that he intended an Innovation , and the introducing an Arbitrary Government , this Recorder much more . Did chief Justice Keeling say , Magna Charta was Magna farta ; so did this Recorder too : And did Justice Keeling Fine and Imprison Juries , contrary to all Law , so did this Recorder also . In short , there is no difference , unless it be , that the one was questioned , and the other deserves it : But we desire in this they may be said to differ . That though the former escap'd punishment , the latter may not , who having a Presedent before , did notwithstanding notoriously transgress . To conclude , The Law supposes the King can't err , because it is willing to suppose , he alwayes acts by Law ( and Volunt as Legis , est voluntas Regis , Or the Kings Will is regulated by the Law ) but it says no such thing of his Judges . And since they are oblig'd by Oath to disregard the Kings Letters ( though under the Broad and privy-Seal ) if they any wise oppugn , or contradict the Laws of the Land ; and considering that every singular Action of an inferior Minister , has an ugly reference to the Supream Magistrate , where not rebuked ; we can't but conclude , that both Judges are answerable for their irregularities , especially , where they had not a limitation of a Kings Letter , or Command ; and that the Supream Magistrate is oblig'd , as in Honour and Safety to himself , Alfred-like , to bring such to condign punishment , lest every Sessions produce the like Tragical Scenes of Usurpation over the Consciences of Juties , to the villifying and contemning of Justice , and great detriment , and prejudice of the good and honest men of this Famous and Free City . FIAT JUSTICIA . FINIS . ERRATA . PAge 5. after line 20. read ( John Robinson Alderman , and Richard Brown ) The line following r. ( Call over the Jury . ) P. 6. before the first l. r. ( the Indictment ) P. 7. l. 25. for ( before ) r. ( to ) P. 10. l. 26. blot out ( to ) P. 17. l. 4. r. ( is not ) P. 19. l. 7. instead of ( is he guilty ) r. ( is W. P. guilty ) P. 26. l. 11. r. ( to the terror ) P. 27. l. 6. for ( as ) r. ( and ) P. 32. l. 13. for ( Nern ) r. ( Horn ) P. 44. l. 11. for ( For Ver dictis from ) r. ( For Verdict from ) P. 47. l. 31. for ( Palaris ) r. ( Phalaris ) . Notes, typically marginal, from the original text Notes for div A54186-e700 Obser . at this time several upon the Bench urged hard upon the Prisoner to bear him down . Notes for div A54186-e11600 9 H. 3. confirm'd 28 Ed. 3. Chap. 1. the form of ancient Acts , &c. Co. 2. Inst . fol. 2. Chap. 14 Cha. 29. Notes for div A54186-e12300 ☜ ☞