Brief Collections OUT OF Magna Charta: OR, The Known good old LAW OF ENGLAND. Which showeth; That the Law is the highest Inheritance the King hath; and that if His Charter, Grant, or Patent, be repugnant to the said Laws, and Statutes, cannot be good, as is instanced in the Charter of Bridewell, London, and others. By which it appears; That the King by His Charter may not alter the Nature of the Law, the Form of a Court; nor Inheritance lineally to descend; nor that any Subject be protected from Arrests, Suits, etc. Printed at London, for George Lindsey, and are to be sold at his Shop over against London-stone. 1643. Collections out of MAGNA CHARTA: OR, The known good old Laws of ENGLAND. INter Magnalia Regni; Magnalia Regni, 19 H. 6. Amongst the greatest and most haughty things of this Kingdom; as it is affirmed in the 19 H. 6. Le ley est le pluis halt. Inheritance q. le Roy ad, etc. That is; the Law is the highest Inheritance that the King hath. For by the Law both the King and all his Subjects are ruled and directed. The Maxims to direct the King. The Maxims and Rules whereby the King is directed, are the ancient Maxims and Customs, and States of this Land. The Maxims. The Maxims are the foundations of the Law, and the full and perfect Conclusions of reason. The Customs of the Realm. The Customs of the Realm, are properly such things, as through much, often, and long usage: either of simplicity, or ignorance, getting once an Entry; are entered and hardened by Succession, and after be defended as firm and stable Laws. The Statutes of the Realm. The Statutes of the Realm, are the resolute Decrees, and the absolute Judgements of the Parliament established by the King, with the common consent of the three Estates, who do represent the whole and entire Body of the Realm of England. To the purpose of this discourse, The law is: If any Charter be granted by the King, the which is repugnant to the Maxims, Customs, or Statutes of the Realm; Then is the Charter void, and it is either by Quowarranto, or by Scirefacias (as learned men have left Precedents) to be repealed. As in Anno 19 Ed. 19 Ed. 3. 3. That a Kings Grant which is either repugnant to Law, A Kings Grant repugnant to Satutes etc. not good. Custom, or Statute, is not good nor pleadable in the Law; See what Precedents thereof have been left by our wise Forefathers. It is set down in 13. 13. H 6. H. 2. H. 6. That King H. 2. had by his Charter granted to the Prior and Monks of S. bartholomew's in London, that the Prior and his Monks should be as free in their Church as the King was in his Crown. Yet by this grant was the Prior and his Monks deemed and taken to be but as Subjects, and the aforesaid grant in that respect to be void. For by the law the King may not any more disable himself of his regal superiority over his Subjects, than his subjects can renounce or avoid their subjection, against or towards their King or Superior. Stacyes, example. You know that Stacy would have renounced his loyalty and subjection to the Crown of England, and would have adopted himself to have been a subject to King Philip of Spain. But answer was made by the Court; That by the laws of this Realm, neither may the King release or relinquish the subjection of his subject, neither may the subject revolt in his allegiance from the superiority of his Prince. There are two notable precedents in the time of King Edward 3. K. Ed. 3. the which although they take place in some one respect; yet were they not adjudged of according to the mind of the King being the Grantor. The L. Montague. That is, the King granted unto the Lord William Montague, the Isle of Wight, and that he should be crowned King of the same. The Earl of Derby. And he also granted unto the Earl of Derby the Isle of Man, and that he should be crowned King of the same. Yet these two personages (notwithstanding the said grants) were subjects, 8. H. 4. and their Islands were under the dominion and subjection of the King, and in that respect were the grants void. It was spoken in the 8. 31. H. 6. H. 4. Quod potest as Principis, non est inclusa legibus. That is, a Prince's power is not bounded with rules or limits of the law: howsoever that sentence is so, the law agreed to the contrary. The 31 H. 6. whereas it is agreed for law, That it is not in the King's power to grant by his Charter, that a man seized of land in see simple, may devise by his last Will and Testament the same lands to another, or that the youngest son by the custom of Burrough English, shall not inherit; or that lands being Frank fee, should be of the nature of ancient demeasne. Or that a new incorporated town, 34. H 8. that an assize of Fresh force should be used, or that they shall have toll, traverse, or through toll, or such like, etc. 37 H. 8. & 49. Ass. 4.8. See also a notable case agreed for law in 6. H. 7. where the Justices do affirm the law to be, that Rape is made felony by statute, and that the same by the law is not inquirable but before Justices that have authority to hear and determine of the same. In this case the King cannot by his Charter make the same offence to be enquired of in a Law day; nor the King cannot grant, that a Leet shall be of any other nature, than it is by the course of Common Law: So thereby it appeareth; that the King may not either alter the nature of the Law, the form of a Court, or the manner or order of pleading. And in 8. H. 6. it is agreed for Law; Anno 8. H. 6. That the King may not grant to I. S. That I. S. may be judge in his own proper Cause; nor that I. S. shall be sued by an action at the Common Law, by any other person; nor that I. S. shall have a Market, a Fair, or a free Warrant in another man's soil. Hill Justice. And in the long Record by Hill the reverend Judge, it is said for Law; That whereas the King hath a prerogative, that He shall have the worship of the body of His Tenants (although be hold of the King but by posteriority) yet if the King grant over his Seignory unto another with like prerogative (notwitstanding any Posteriority) the prerogative shall not pass: For (saith the Book) the King by His Charter cannot change the Laws. The same Law is; That the King cannot grant unto another the prerogative of Nullum tempus occurrit Regi; nor that a Descent shall not take away an Entry; nor a Collateral Warrant shall not bind; nor that Possessio Fratris shall not take place; nor that the wife shall not be endowed of her husband's lands; nor that Inheritance shall lineally descend; nor that any Subject shall be under protection from arrests, suits, and such like, etc. Yet do not we see daily in experience; That whatsoever can be procured under the Great Seal of England, is taken Quasi sanctim? And although it be merely against the Laws, Customs, and Statutes of this Realm; yet it is defended in such sort, that some have been called rebellious, for not allowing such void and unlawful grants. And an infinite number of such like precedents I could set down to maintain the aforesaid argument, but these few examples shall serve for this time. The authority of the Governors of Bridewell. But now we have to see, if the said Charter granted to the City concerning the authority of the Governors of Bridewell, stand with the Laws, Customs, and Statutes of this Realm or not. The effect of which Charter in one place is; That the Governors have authority to search, inquire, and seek out idle Ruffians, Tavernehunters, Vagabonds, Beggars, and all persons of evil name and fame, whatsoever they be, men or women, and then to send and commit to Bridewell, or by any other ways or means to punish or correct them, as shall seem good to their discretions. Here you see what the words of the said Charter are. Now are we to consider what the words of the Law be. See Magna Charta of the Liberties of England cap. 29. Magna Charta cap. 29. 29. No Freeman shall be taken or Imprisoned, or be Disseised of his Freehold, or Liberties, or free customs, or to be outlawed, or exiled, or any other ways destroyed, Nor we shall not pass upon him nor condemn him, but by lawful Judgement of men of his degree, or by the Law of the land. Now if we do compare the said Charter of Bridewell with the great Charter of England both in matter, sense, and meaning, you shall find them merely repugnant. In the said great Charter of England, in the last Chapter amongst other things, the King granteth for him and his heirs, That neither he nor his heirs shall procure or do any thing, whereby the Liberties in the said Charter contained, shall be infringed or broken. And if any thing be procured or done by any person contrary to the premises, it shall be had of no force or effect. Here must you note also, That the said great Charter of England is not only confirmed by the Statute of Marlebridge cap. 5. Stat. of Malb. cap. 3. but also by many other Statutes made in the time of King Edw. King Ed. 3. R. 2. H. 4. H. 5. H. 6. Anno 43. E. 3. cap. 1. 3. King R. 2. Hen. 4. Hen. 5. and Hen. 6. Amongst sundry of which Confirmations, I do note one above the rest. The which is An. 43. Edw. 3. cap. 1. The words are these viz. It is assented and accorded, That the great Charter of England, and the Charter of the Forests, shall be kept in all points: and if any Statute be made to the contrary they shall be holden for none. Hitherto you see it very plainly, That procurement nor Act done either by the King or any other person, or any Act of Parliament, or other thing; may in any ways alter or change any one point contained in the said great Charter of England. But if you will note the words, sense, matter, and meaning of the said Charter of Bridewell, you shall find it all merely repugnant to the said great Charter of England. I do note one special Statute made in the said 43. year of King Ed. 3. the which if it be well compared to the said Charter of Bridewell, it will make an end of this contention. The words are these, viz. Item, at the request of the Commons, by the Petition put forth in this Parliament, to eschew the mischiefs and damages done to divers of the Commons by false Accusers; which oftentimes have made their Accusements, more for vengeance and singular profit, then for the profit of the King and his people; of which accused persons, some have been taken and caused to come, etc. against the Law. It is assented and accorded for the Government of the Commons, That no man be put to answer without presentment before the Justices of the King upon Record by due process, As by Writ original, according to the old Law of the land, And if any thing from henceforth be done to the contrary, it shall be void in the Law, and holden for Error. As I said before, so say I still; If this Stature be in force, as I am sure it is; then is the Law clear: That the proceed in Bridewell upon the accusation of Whoors taken by the Governors of Bridewell aforesaid; are not sufficient to call any man to answer by any Warrant by them made, without Indictment or other matter of Record, according to the old Law of the land. Such like Commissions as this of Bridewell is, were granted in the time of King Ed. 3. by especial procurement, to inquire of special Articles, the which Commissioners did make their Inquiries in secret places, etc. It was therefore enacted, Anno 42. Ed. 3. Anno 42. E. 3. cap. 4. That from henceforth in all Inquiries within the Realm, Commissions should be made to some Justices of one Bench or other, or Justices of Assize, or Justices of the Peace, with other of the most worthy of the County, etc. By this Statute we may learn, that Commissioners of Inquiries ought to sit in open Courts, and not in any close or secret place, and that their Inquirie ought to be by Juries, and by no discussion or examination. If you look upon the Statute of Anno H. Anno 1. H. 8. cap. 8. 8. cap. 8. you shall there perceive the very cause, why Empson, Sheffeild, and others, were quite overthrown, the which was (as by the Indictments especially appeareth) for executing Commissions against due course of the Common Law, and in that they did not proceed in Justice according to the Liberties of the great Charter of England, and of other Laws and Statutes provided for the due executing of Justice. There was a Commission granted forth in the beginning of the Reign of Queen Elizabeth of happy memory unto Sir Ambrose Cave, Sir Richard Sackvile, and others, for the examination of Felons, and of other lewd persons. It so fell out, that many men of good calling were impeached by the accusation of Felons. Some great men and Judges also entered into the validity of the Commission, And it was thought that the Commission was against the Law, and therefore did the Commissioners give over the Commission, as all men know. And whereas the Examination is by the Commission referred to the wisdom and discretion of the Governors of Bridewell, As touching this point, I find that the examination of robberies done by Sanctuary men, was appointed to the discretion of the Council, or to four Justices of the Peace; But this was not by Commission, or by Grant, but by Act of Parliament, made Anno 22. H. 8. cap. 14. Anno 22. H. 8. cap. 14. The Justices of both the Benches have used to examine the abilities and disabilites of Attorneys, and by their discretions to place or remove them upon their misdemeanours without any solemnity of trial at the Common-Pleas or Law, And that is and have been done by the Treasurer and Barons of the Exchequer touching their Attorneys. But if you search the cause thereof, you shall find the cause to be done by the authority of Parliament. An. 4 H. 4. cap. 1. Anno 4 H. 4. cap. 1. And whereas sundry men are arrested by Latitat, Capias, Attachments, and such like Process whereof their corporal presence is required, yet upon infirmities and other maladies, the Justices (having examined the matter) may by their discretions admit them to make Attourneyes. But note you in this case, Anno 7. H. 4. cap. 13. that all this is done by authority of Parliament. An. 7. H. 4. cap. 13. The Commission of Bankrupts gives power to their Commissioners to take order by their discretions both with the body and goods of the Bankrupt, and set the Bankrupt out of his house, and him to imprison, and all this is referred to the discretion of the Commissioners; But this is by authority of Parliament. Anno 13. Eliz. cap. 7. An. 13. Eliz. cap. 7. The punishment and examination of such as counterfeit Letters of privy tokens, is referred to the discretion of the Justices of peace in every County; But this is by Parliament. Anno 33. Anno 33. H. 8. cap. 1. H. 8. cap. 1. The examination of Riots, Routs, and such like misdemeanours in the Star-chamber, is referred to the discretion of the judges of the Court; Anno 3. H. 7 cap. 1. Anno 2. H. 8. cap. 20. But this is by Parliament. An. 3. H. 7. cap. 1. & An. 2. H. 8. cap. 20. The examination of unlawful hunting in Parks, warrens, etc. is referred to the discretion of the justices of the Peace. And if the Offender deny his hunting, than it is felony. This is also by Parliament. Anno 1. H. 7. cap. 7. Anno 1. H. 7. cap. 7. The Rate, Taxation and punishment of servants, labourers, etc. of their wages, is referred to the discretion of the justices of Peace in every County, and City; but this is by Parliament. Anno 5. Eliz. cap. 4. Anno 5. Eliz. cap. 4. The examination of Rogues and Vagabonds with the form of their punishment, is referred to the lustices, but by Parliament. The determination of all causes in Wales, is referred to be ended by the King's Council there established, by their Wisdoms and discretions; but yet this is by Parliament. The Grant of the Pluralities, Tot quots, Qualifications, Dispensations, Licences, an▪ tolerations, is referred to the discretion of the Archbishop of Canterbury; but this is by Parliament. The deal and examinations of High Commissioners are authorized altogether by Parliament. And to be short, you shall find in the great volume of the Statutes, near the number of forty Acts of Parliament, that do refer the examination and punishment of Offenders to the wisdom and discretion of the justices. Whereupon I do note: Nota. That if the King by Prerogative might have done all things by Commission, or by Charter; That it had been in vain to have made so many Laws in Parliament for the same. And to make the Law more manifest in this question, In ann. 42. Ed. 3. lib. Assiz. 11.5. Ann. 42. E. 3. lib. Assiz 11.5. A Commission was sent out of the Chancery to one I. S. and others, to arrest the body and goods of A. B. and him to imprison; and the justices gave judgement, that this Commission was directly against the Law, to take any one's body without Indictment: and therefore they took the Commission from the Commissioners, Nota. to the intent to deliver the same to the King's Council, Anno 24. E. 3. Quod nota. And I do also find in the 24. year of King E. 3. this precedent, That a Commission was granted to certain persons, to indict all those who were notoriously slandered for any felonies, trespasses, or for any other misdemeanours, yea although they were indicted for the same. And it was adjudged that this Commission was directly against the Law. And thus I do conclude upon the whole matter. That the Commission of Bridewell would be well considered of by the learned Council of the city: For I do not think to the contrary; but that there be learned, that by their great knowledge in the Law, are well able either in a Quo warranto, or any other action brought to defend the same. FINIS.