The Great CHARTER of the LIBERTIES of ENGLAND, Granted to the People of the same, By King HENRY the third; And accorded between him and them in diverse full Parliaments, as followeth, viz.

First, We have granted to God, and by this present Charter have confirmed for Vs, Cap. 1. Liber­ties. and our Heirs for evermore; That the church of Eng­land shall be free, and shall have all her whole rights, and liberties invi­olable: We have granted also, and given to all Free-men of our Realm, for Vs, and Our Heirs for ever­more, these Liberties under-writ­ten, to have and to hold, to them, and to their heirs, of Vs, and Our heirs, for evermore.

Here be four rehearsals (saith the Lord Coke) of four notable causes of the making this Law. Lord Coke upon Mag. Chart. Fol. 1. First, for the honour of God. Secondly, for the health of the Kings soul. Thirdly, For the ex­altation of the church. Fourthly, for the amendment of the Kingdom. And all granted to all subjects, and their heirs, from the King and his heirs for evermore; That the great Charter might live, and take effect in all suc­cessions [Page 3]of ages for ever.

Expost and Quer.The last of these causes which the L. C. in his Preamble calleth the ends for which this Charter was made, being for the amendment of the Realm, was (saith the L. C. up­on the first chapter of confirmatio Chart. fol. 529.) to amend great mischiefs, and inconveniences, which oppressed the whole Realm before the making of both Charters, viz. This, and the Charter of the Forrest, which (saith the L. C. in his Preface) were declarative Acts of the old Common-Law of the Land, and no introductives of any new Law. If the mischiefs, and inconveniencies of the Realm were great before the said Acts were made to declare the Laws of the land, which formerly the lawyers reserved to themselves, till then undeclared? Were there not greater since those Acts were made, and the Lawes thereby de­clared, and since the accord of King and People, to keep the same invi­olable, when, and as often as they were violated by Kings, and their Counsel, learned in the Laws? As hereafter shall appear.

We (saith the Lord Coke) spoken in the politique capacitie of a King, L. Coke upon M. C. fol. 19. ex­tendeth to his Successours. And by Bailiffs, are meant Sheriffs, who write Baliva mea, &c. And by the words shall not seiz is expressed the Kings Grace, who by the Common-Law had Execution against his Debtors bo­dies, lands, and goods. And by the Statute of 33. Hen. 8. cap. 9. The Sheriff is to inquire &c. and to extend all Lands, Goods, Chattels. &c. and [...] take and imprison the Bodies, as by that [Page 5]Stat. appeareth, and as the daily pra­ctice sheweth.

Expost and Quer.If We extend to Successors, even to King Hen. 8. Why not longer? If Magna Charta was to live for ever, Why not hitherto? If the King of his Grace remitted by this Act the exe­cution which the Common Law gave him before against his Debtors, Bodies, Lands, and Goods, in case of having nought wherewith to pay, through decay of their estates by un­avoidable necessities; then the Kings Debtors obtained of the Kings Grace as much Liberty for their bodies, as this King gave to all his free subjects by the 29^th of this Act, viz. No Free man &c. And for his Estate, as much as the proverb saith; Where nothing is to be bad, the King looseth his due. If the King did not remit so much by this Act, then did he gain thereby more than he gave, contra­ry to the opinion of all Lawyers, that say, All Acts of Parliament are to be expounded for the benefit of the Subject. And what, and how did he gain? but contrary to his Honour, much more to his Grace, when two more of his subjects were hedged in [Page 6]by this Act, as Pledges to pay for his undone Debtor, and to undoe themselves and their families by the bargain. And (their estates being too little to pay their own debts) their Creditours must see the King first served our of the same, to their no small prejudice, if not undoing, whereby many are injured through one mans occasion. If therefore this Act ought to be construed for the honour of the King, and benefit of the subject (as I believe it ought, and the L. C. saith, others have thought so) it followeth, That the Statute of the 33. Hen. 8.9. was made (as many more were before and since) against Mag. Chart. and not onely against Kings honour, and grace, but also their Oathes, to the undoing of multitudes of their subjects, which was ungracious for their Counsel learned in the Laws, to give advice, or assent to the ma­king such Laws, or when made, to allow them, much more to maintain them; being that all Judges are to receive Mag. Chart. for a Plea a­gainst all Statutes made against it. And all Judgements given against Mag. Chart. are, and ought to be [Page 7]void; (as appeareth in the L. C. preamble) And all such Statutes as were made before the 42. of Ed. 3. against Mag. Chart. were then re­plealed: and (as I conceive) all made so since, are repealed by the Petiti­on of Right, 3. Car. that restored Mag. Char. to its primitive vigor, and consequently enervated all its opponents.

This Chapter (saith the Lord Coke) is excellently interpreted by an ancient Author (quoting the Mirrour in the Margent) who saith, L. C. upon M. C. fol. 20. that by this Chapter, the Citizens of London ought to have their Franchizes, whereof they are inheritable by loyal Title, of the gift, and confirmation of the Kings, which they have not forfetted by any a­buse; and that they shall have their Franchizes, and Customes, which are sufferable by right, and not repugnant [Page 8]to law: And the same interpretation serveth for the Cinque-ports, and other places.

Expost and Quer.Doth not this Charter, and chap­ter sufficiently declare, and Lawyers, (though unwillingly, yet plainly) confess, that London and the rest, had old Liberties and customes, and that they are inheritable thereof, and ought still to have the same, so long and so far, as not repugnant to Law, (which I conceive to be this Law, and not any that have been made since against it?) And do not the several Charters of London, and other Cities and Towns, obtained since this Law, declare further what those Liberties, and Customs were? And if the Kings learned Councel have consented that he should grant, or Professors of the Law advised Lon­doners, or any other Citizens, to ask things repugnant to this Law, and prevailed with both parties? Have they not misled both parties? And though they have so done often; yet in this case, doth not the Statute of the 19^th of Henry 7. chap. 7. help the offendors with less danger than the forfeiture of their Customs, and [Page 9]Liberties, if they offend especially but in those points, which their law­yers so much misadvised them to ask, and the Kings, him to grant?

Before this Statute (saith the Lord Coke) Common-Pleas might have been holden in the Kings-Bench,L.C. upon M.C. fol. 22, 23. and all Writs returnable unto the same Bench; And because the Court was holden co­ram Rege, and followed the Kings Court, and removable at the Kings will, the Returns were Ubicum (que) sue­rimus in Angliâ whereupon many discontinuances ensued, and great trou­ble of Jurors, charges of Parties, and delay of Justice; for this cause this Statute was made, &c. And Pleas of the Crown were divided into high Treason, Misprision of Treason, Petty Treason, Fellony, &c. and limited to this Court, because contrà coronam, & dignitatem, &c. So that of these (the Lord Coke saith) the Com­mon-Pleas cannot hold Plea. But to shew that Common-Pleas may be hol­den in the Kings-Bench, he saith. That [Page 10]the King is out of this Statute, and may sue in that Court. Secondly, if a man be in Custodia, any other may lay upon him any Action of debt, cove­nant, or the like personal Action, be­cause that he that is in Custodia, ought to have the priviledge of that Court And this Act taketh not away the Pri­viledge of any Court. Thirdly, any Action that is Quare vi & Armis, where the King is to have a Fine, may be sued in this Court. Fourthly, Reple­vins may be removed thither. Fifthly, (saith the Lord Coke) Albeit originally the Kings-Bench be restrained by this Act, to hold Plea of any Real action yet by a mean, they may; as when re­moved by writ of Error from Common-Pleas, thither for necessitie, lest any party that hath right should be without remedie, or that there should be a failer of Justice; and therefore Statutes are al­waies to be expounded so, that there should be no failer of Justice.

Expost and Quer.Do not the L. C. words, viz. (Be­fore this Statute, &c.) imply, that af­ter the Statute, Common-Pleas ought not to be holden in the Kins-Bench, nor all Writs be returnable into the same Beach? Doth the Re­gister, [Page 11]or Natura brevium therefore shew any Writ for debt returnable to the Kings-Bench? Doth not Fitz. H. natura brevium fol. 119. h. & k. declare that there is no Writ in Law for debt, but a Justicies, which is a judicial Commission to the She­riff to determine the matter, Nè am­plius indè clamorem audiamuus: So that the Kings-Bench ought not to be troubled with the matter at all? or if an Original returnable to the Common-Pleas? Doth not that Origi­nal declare it self to be a Summons? And doth not M^r Kitchen in his Ret. brev. fol. 4. Tit. com. bank, declare, that Summons, Atachment, and Di­stringas, succestively distant fifteen days one after another, is the onely Proces at Common Law? The Kings-Beach, and Common-Pleas ought to practise by the Common Law, de­clared by Mag. Chart. and accord of the King and People; declared and injoyned to be observed in­violable, and immutable for ever. Did ever any Judge of the Kings-Bench, or Common-Pleas, advise, or consent to the making any Statute, or Law to the contrarie, (being sworn to execute and maintain Mag. Chart. [Page 12]as anon shall appear all were, or ought to be) and was not perjured? Did, or doth any Judge of any Court of Record, observe any such Law be­ing so made; or practice, or suffer to be practised (where he hath authori­tie) any suits or proceedings contra­rie to Mag. Chart. and was, and is he not perjured? Doth not the pra­ctice of the Kings-Bench still shew, that thence doth issue no other Writ for debt, than a Bill of Middlesex, or Latitar, which express themselves to be for Trespass? Are not those Writs still returnable ubicunquè sue­rimus, and the Kings-Bench therefore still removeable at the Kings will? whereupon (as saith the L. Coke) ma­ny discontinuances ensue, and great trouble of Jurours, charges of Par­ties, and delay of Justice: for which causes (he saith) this Statute was made. How doth this Statute (if therefore made) prevent such discon­tinuances, trouble, charges, and de­lay of Justice, but by declaring, that Common-Pleas shall not follow the Kings-Bench? How contradictorie to himself is the L. Coke then, when he laboureth to make Common-Pleas lawfull to be holden in the Kings-Bench? [Page 13]And if (as he saith) the Pleas of the Crown were divided into high Treason, Misprision of Treason, Petty Treason, Fellonie, &c. & limited to the Kings-Bench, because cont. Coron. & dign. Regis; so that of these (saith he) the Common-Pleas cannot hold Plea. By what Justice can he desire to hold Common-Pl [...]as in the Kings-Bench; unless because more gainfull, (as when he was supplanted by his successour, under colour of prefer­ment, from the Common-Pleas to the Kings-Beach, he passionately expres­sed the difference, saying, That he was called from the warm kitchen, to the cold hall:) and that therefore he desired to reduce Justice to his de­sire, rather than his desire to Justice? But let us examine his Arguments for that purpose. First, (saith he) The King is out of this Stature. How? out of this Statute, which above all other, the King was sworn to ob­serve, and obey, and to violate was perjurie, and punishable in all men without regard of persons, and no less in the Lo. C. to say and write o­therwise? But (saith he) the King might sue in his Bench. And so might he in any Court of Record which he [Page 14]pleased; for all such Courts are cal­led his, and have power under him, to administer Justice to all men, ac­cording to their Commissions and Charters, as well as the Kings Bench; and therefore he had his Atturneys, and Sollicitours, attending many such Courts. Secondly, (saith he) if a man be in custodia, any other may lay upon him any action of debt &c. because (saith he) that he that is in custodia, ought to have the pri­viledge of that Court. Now if a man be in custodia for Fellonie, &c. and an Action for Debt, &c. be laid up­on him, shall his priviledge in being in custodia keep him from hanging (if he deserve it) till he pay the debt? or if he be hanged, and have any goods, shall the Creditour be paid his debt out of the same; or if he have any lands, out of the Es­cheat? I believe not. If a man be not in custodia, but a Justice of Peace, or a Grand-Juror, attending Sessions in Cumberland or Cornwall, what priviledge of this Court doth he need? If he be arrested there, upon a Writ of trespass, when he is guiltie of none, is he not more dis­graced than priviledged by this [Page 15]Court? when he is forced to appear in this Court for trespass, and nothing declared against him for any such matter, ought he not to be dismissed for that matter, with costs, and dam­mages, answerable to his disgrace and expences, though arrested at the Kings suit? Shall the King do any man wrong? how then doth the Ma­xim hold, that he cannot? Shall this Court abuse his name, to wrong his Subject? Is not Injustice, Per­jurie in a Judge sworn to do Justice? Is not all against Mag. Chart. and truth, which is, God himself? If not so dismissed, shall a declaration be admitted against him upon an Origi­nal for debt, where neither such Writ, nor cause belong? And shall the Defendant be inforced to wait upon his Bail for trespass, to answer that Declaration? is not that more Injustice? And moreover, if that Writ, or the Return thereof be for­ged, (as all, or most Originals direct­ed to the Sheriffs of London or Mid­dlesex, are; aswel by Clerks of this Court, and so filed upon Record here as by Attorneys in the Com­mon-Pleas, there;) shall that Decla­ration be admitted to say, that the [Page 16]Defendant is in custodia, (which is false;) and be made a Record, which would be accounted the next truth to Gospel? And shall not the Defen­dant be admitted to plead Mag. Ch. against the jurisdiction of the Court, and such lying Records? If not; is not all this more Injustice and Per­jurie? Shall Judges give Judgements upon fal [...]e Records (except to burn them, and punish the makers, and causers) and shall not they be count­ed, and called false Judges, and Per­jurers; and their judgements false judgements and perjuries? Shall they, that commit Debtors into their Marshals custodie, upon such judgements by their priviledge (as they call it,) say that this Statute doth nor take away such priviledges, when the Lo. C. himself saith, that all Statutes ought to be expounded so, that there should be no failer of ju­stice; and this Statute, being M. Ch. (chief of all Statutes) and all its Confirmations say, that equal justice ought to be done to all men, with­out regard of persons? What Sta­tute or custom did, or can give any priviledge to any Court to the con­trarie? What benefit of priviledge [Page 17]hath the Debtor, that is so commit­ted by this Court, and its priviledge, but his undoing, and his families, and often his untimely death by famin, and miserie? Is not that so occasi­oned by the rigour, and illegalitie of this Court, an offence of the highest nature, of Munther and Perjurie? Who gaineth any thing by this pri­viledge, but the Court, and their Marshal in extorted Fees, to the dammage of both Creditor and Debtor, and often the ruin of both or either? Why therefore doth the L. C. call it a priviledge to the party in Custodie, when it appeareth to be no benefir, but prejudice unto him, and that more aggravated, to have more Actions laid upon him for more debts occasioned (perhaps) by his imprisonment? What law, or reason requireth any priviledge to any man for debt, since this Statute in the 29 chapter, freeth all mens bodies from imprisonment, untill they be lawfully tried by their Peers? and no law, but an abortive Statute made 25. Ed. 3. cap. 17. and repealed in the 42 of the same King (as afore­said) gave an Arrest against Debtors but Merchants and Accomptants? [Page 18]and a Statute made in the said 25 year of the said King, gave the Cre­ditors two parts of all their Debtors lands, & all thei goods (except the beasts of their plough) for satisfa­ction of their debts, which Statute is still in force, and daily executed accordingly? As for Accomptants, Debtors, and Tennants to the King, that are so indeed, if the Court of Exchequer be thought proper for them; why should others that are not such indeed, be sheltered to de­fend or countenanced to offend un­der that pretence? And as for Mem­bers of any Court, why ought not they to sue, and be sued by their At­turneys in other Courts than their own, since it is unnatural for any bo­die to suffer any of its Members (though never so corrupt) to be put to any smart, which it may avoid? And may not, nay ought not every just Court avoid such suits, and the suspition of their injustice by enter­taining them, and proceeding there­in, by leaving them to the justice of other Courts of competent judica­ture, as all other Courts do leave their Members to the mercy of the Courts at Westminster? [Page 19]or may not, nay ought not all Courts of judicature within their jurisdicti­ons, determine the causes of all such Members of the Courts at Westmin­ster, as shall be found, and arrested within their jurisdictions, notwith­standing any Writs of priviledge, or other Writs to remove them, before they be determined; rather than the Courts at Westminster may send for the Members of every Court, to be justified by them? For who can say, he hath ever found any justice there against any priviledged man? And how many that be no Members of a­ny Court there indeed, are so coun­tenanced, as subordinate to some ill Member, or other there, and have their Law for nothing, to bring Fees and gain to one or other of those courts, out of honestmens purses and Estates, against whom they can shew no colour of right any where, but where they know they shall be favo­red, and their Adversaries oppressed? And how many men of good Estates have been, and daily are, not onely oppressed, but undone by that means? Thirdly, for Trespass, vi & Armis; Is it but a common-Plea, and consequently proper to all [Page 20]courts of Record, and rather to be tryed within that jurisdiction where the offence is committed, than else­where? And hath not the King his Fines imposed and levyed by the au­thority of all such courts, as wel as by the Kings-Bench? Fourthly, for Re­plevins, may they not as well be re­moved to, and determined by the Common-Pleas, as in the Kings-Bench? Fifthly, what meaneth the Lord by his words, viz. [Originally restrained] but that the Kings-Bench is restrained from having any origi­nal Writs Returnable thither in Real Pleas,? And is it not as much re­strained from originals in Personal Pleas, that are as Common-Pleas, as Real, by this Statute? Or by what other Statute, Law, or President, is it inabled to have any originals re­turnable to it for debt, when the Re­gister and Ret. brevium have no such Presidents, as aforesaid? Is not there­fore all the practice of the Kings-Bench for debt, unjust, and perju­rious, as aforesaid? and moreover a faint Action, &c. as the prisoners for debt in that Court have lately set forth by their Petition to the Lord General, and his Officers concerning this matter.

A Free-man here, Lord Cook upon Magna Charta fol. 27. hath a special understanding (saith the L. C.) and is taken for a Free-holder; and this ap­peareth by this clause, Salvo contene­mento suo. viz. Saving his Free-hold, &c. This Act extendeth to Ameircia­ments, not to Fines imposed by any Court of Justice, &c. Free-men are not intended to officers, or ministers, or officers of justice, &c. The Writ of Mo­derata misericordia, giveth remedie to the Partie that is excessively ameir­ced, &c. Albeit the Law of England [Page 22] is a Law of mercy, yet it is now turned to a shadow; for where by the wisdom of the Law, these Ameirciaments were instituted, to deter both Domandants from unjust suits, and Defendants from unjust defences, which was the cause in former times of fewer suits, &c.

If amerciaments were instituted to deter Plantiffs from unjust suits,Expost and Quer. and Defendants from unjust defen­ces; and were the causes of fewer suits in former times; how comes the Law turned to a shaddow in the Lord Cokes time? when in the Kings-Bench, and Cmmon-Pleas, am ercia­ments were as frequent, and greivous as in any other time, and suits no fewer, nay more numerous than be­fore, (as Records of both Courts de­clare) unless he means that all the Writs in the Register, and Natura bre­vium, both original, and judicial, (whereby suits were determined a­mongst neighbours friendly at home) became useless, since Habeas corpus, &c. carried all to Westmin­ster? And that there injustice shad­dowed under the name and habit of justice, remunerated the litigious supporters of her being, with such [Page 23]shares of her spoils, that though she trebled their amerciaments, she made them alwaies gainers; unless when to satisfie their revenge, rather than their purses, they commuted their monies for counsels, and coun­tenances, to undo the opposers of their malice, whereby both parties became loosers, and often ruined; and injustice onely remained the gainer, and increased her kingdom (as the Divel doth his) by such sui­tors; and made more suits for West­minster, than all the Courts of Er­rors, and their Judges, Lawyers, and Attorneys there, shall wear out while they live, without extraordina­ry helps of their servants.

Both the next precedent chapters sufficiently expound themselves, so [Page 24]that the Lord Coke speaketh no more to this matter, but that the Mirrour saith, That diver Rivers and their Banks were in his time appropriated, and blocked up by divers persons, to de­bar common-fishings, which were wont to be used there in the time of King H. 2. And I believe, there are many more so done, more lately, which Commissioners for Sewers shall do well to look to.

One mischief before this Statute, L. Coke upon M. C. 30. was (saith the Lord Coke) That no Court, but the Kings chief Court, could command Bishops to give their clergy to such as ought to have it: another cause was, That the life of a man ought to be tryed before Judges of learning, and experience of the Laws of the Realm; for Ignorantia Judicis, est saepenumerò calamitas innocentis. These are the reasons that the Lord Coke alledgeth, why some Pleas of the Crown were taken from Sheriffs, Castel­lans, Escheators, Coronors, and Bailiffs, under which names (saith he) are [Page 25]comprehended all inferiour Judges, Justices, and Courts of Justice: albe­it (saith he) it be provided by the 9^th chap. of Mag. Charta, That the Barons of the five Ports should have all their Liberties and Customs. These general words (saith he again) must be under­stood of such Liberti [...]s and Customs, as are not afterwards in the same Char­ter by express words taken away, and assumed to the Crown.

Might not the Kings inferior Courts command ordinary Ministers to give men their Clergie?Expost and Quer. And might not that serve before Magna Charta, as it is usual since? For sel­dom, or never in our memories, did Bishops themselves attend any court for that service: and now, should they be necessary onely for that im­ployment? So the Kings Court would be onely to command them: but if Bishops may be spared, why may not that Court for that cause? And if by this Charter the King re­sumed some Pleas of the crown from those that formerly had them; dor [...] et follow, that he resumed all Ple [...] from those that formerly had them? And if under the name of Bailiffs be [Page 26]comprehended all Judges, and Justi­ces, are not the Judges of the Com­mon-Pleas and Barons of the Exchec­quer so comprehended? And are none of them of such learning and experience in the Laws of the Realm, to try the life of a man, as Judges of the Kings-Bench? Or else, why are they sent for Goal-deliveries, as­wel as Judges of the Kings-Bench are? Was it not provided by the 9. chapter of Mag. Charta, That Lon­don, and other Cities, Burroughs and Towns, as well as the Barons of the five Ports, and other Ports should have their Liberties and Free-Cu­stoms? Are all these now resumed by this 17. chap? Who can under­stand so? Or what meaneth the L. C. by his riddles? Shall Magna Charta contradict it self, though the Lord C. would, and doth here and else­where? Are not Commissions of O­yer and Terminer, usual for Tryal of mens lives, where Judges of the Kings-Bench cannot reach, or dare not go? Doth not London and other Corporations execute their Charters by their Recorders, when the Kings-Bench gives them leave; and then do not the Judges of the Kings-Bench [Page 27]grant that such Judges may be as learned, and experienced in the Laws as themselves, for the Trying of mens lives? Are not mens lives Tryable for matter of Fact, and not of Law, (except Treasons that reach to thoughts?) Are not Jurors the Judges of matters of Fact? What great learning, or expe­rience in Law is requisite for a Judge to pronounce the sentence of death, where the verdict hath determined the life? But how many true men have been hanged, and thieves saved by Judges interposing, and obtrud­ing their pestifferous pretended learning and experience in the Laws between the weak consciences of ig­norant Jurors, and the truth? which kind of Jurors they make Sheriffs return for such purposes, when they may have such returned as know the Facts, and have sounder learning and experience in express Law than themselves.

It was specially given in charge by the Justices in Eyre (saith the Lord C.) that all Juries should inquire of all such as Fished with wears and Dams: L. C. upon M. C. fol. 38. and it appeareth (saith he) by Glandvil lib. 9. c. 11. That when any thing is unjustly occupied within the Kings demesne, or obstructed in publick waies; or Rivers, turned off their right channels, or Citie-streets built upon; and in general, as often as any nusance to the Kings holding, or his High-way, or to any Citie, is committed; That is a purpresture, viz. an Inclo­sure, whereby one in chroacheth, or ma­keth that several to himself, which ought to be common to all, or many; and every publick River, or stream, the Kings High way.

If Wears be nusances (as I am sure they are) throughout England, Expost and Quer. and Wales; and if Commissioners for Sewers, and Justices of Peace for want of them, be sufficiently autho­rized to reform such wrongs, and do not, because chief doers thereof, or sharers in the unlawful gain made thereof themselves: why not Justi­ces in Eyer imployed to execute their charge, for the general amend­ment [Page 29]thereof, for the publick good?

This Act concerning Measures, L. Cok [...] upon M. C. fol. 49. and Weights, that there should be one Mea­sure, and one Weight through England, is grounded upon the Law of God, Deut. 25. v. 13, 14. And this by Au­thority of Parliaments hath been often enacted, but never effected.

If Weights and Measures through­out England ought to be one,Expost and Quer. and that not onely by the Law of God (as the Lord C. instanceth) but al­so by this Charter of Agreement be­tween the King and the People; Why did not the Lord C. (being chief Justice of England) sworn to do Law, and Justice too, and between King and People, (as partly before did, and hereafter further shall ap­pear he was, or ought to have been) see this point of Justice, (so highly [Page 30]required by the Law of God, and so mutually agreed upon by the Kings of this Land, and their Subjects) du­ly executed?

A Writ of Inquisition, L. C. upon M. C. fol. 42. viz. De odio & atia, anciently called De bono & malo, &c. which the Common-Law gave a man that was imprisoned, though it were for the most odious cause, for the death of a man, for which (without the Kings Writ) he could not be bailed; Yet the Law fa­vouring the Libertie and Freedom of a man from Imprisonment, &c. until the Justices in Eyre should come, at what time he was to be tryed; he might sue out this VVrit directed to the Sheriff, &c.

If a Writ De odio & atia was gi­ven by the Common-Law,Expost and Quer. to a man Imprisoned for the most odious cause, even for the death of a man; and if the Common-Law favoured [Page 31]the Liberty of a man Imprisoned, so that he should be Bailed for such a Fact, until Justices in Eyre should Try him; Why not such a Writ still? Since odium (which the Lord C. de­fineth to be hatred) and atia (malice) and Prisoners for those causes are no scanter now, than in former times? And why not Justices in Eyre (made since competent Judges by Commis­sion without Writs) to determine such matters, which before they could but inquire of by Writs (as the Lord C. saith elsewhere, though he saith here to try them,) imployed for that service? And now if it be Law­full for a Judge of the Kings-Bench to determine a debt, and to grant an Habeas Corpus for money, to bring the Prisoner before him to put in Bail; Why should he take money for the Writ, and refuse sufficient Bail tendred after Oath made of their sufficiency, without the plantiffs consent? Nay after acceptation of the Bail, Why refuse to File it?

Free-man extends to Villains both Sexes, Lord Coke upon Mag. Chart. Fol. 46 &c. &c. Ʋpon this Chapter, as out of a root, many fruitfull branches of the Law of England have sprung. It containeth nine several Branches: First, That no man be taken or imprisoned, but by the Law of the Land; viz. The Common-Law, Statute-Law, or Cu­stoms of England, &c. Secondly, No man shall be disseised, viz. put out of his Freehold, that is, Land, Livelihood, or Liberties, or free Customs, such as belong to him by his free Birth-right; unless it be by the lawfull judgement, and verdict of his equals, or by the Law of the Land, that is (to speak it once for all) by the Due course, and pro­ces of the Law. Thirdly, no man shall be Outlawed, or put off the Law, viz. Deprived of the benefit of it, unless he be Outlawed by the Law of the Land. Fourthly, No man shall be exiled, &c. unless according to the Law of the [Page 33]Land. Fifthly, No man shall be de­stroyed &c. unless by verdict, or accord­ing to the Law of the Land. Sixthly, No man shall be condemned, &c. but by the judgement of his equals, or ac­cording to the Law of the Land. Se­venthly, We shall sell to no man, Justice, or right. Eighthly, We shall denie no man Justice or right. And Ninthly, We shall deferre no man Justice or Right, &c.

First,Expost and Quer. If no man ought to be ta­ken, or imprisoned but by the Law of the Land, viz. the Common-Law, Statute-Law, and Customs of Eng­land? is it not cleared by our Expo­stulations before upon the 11. Cha­pter, that Debtors are taken, and im­prisoned in the Kings-Bench, contra­rie to the Common-Law of England, declared by Mag. Chart. contrarie to the chief Statute of England, which is Mag. Char. and which the Lord Coke saith, should live (as was ac­corded by King and people) for e­ver? And contrarie to the Custom of England declared by Mag. Charta, and also by the Lord Coke, not to ex­tend to the imprisonment of any [Page 34]Debtours, but onely the Kings. And are not Debtors, other than the Kings, so imprisoned, as well else­where, as in the Kings-Bench? Se­condly, if no man shall be disseised, viz. put out of his Freehold; that is to say, His Livelihood, Liberties, or Free-Customs, such as belong to him by his Birth-right; unless it be by the lawfull judgement, and verdict of his equals, or by the Law of the Land, that is to say, (once for all) by Due course, and Proces of Law. Are not Debtors disseised of their Livelihood, Libertie, and Freedom which belonged unto them as their Freehold by Birth right, when they are imprisoned in London, Westmin­ster, or elsewhere, by Arrests, and Actions for Debt, whether due, or not, upon meer suggestions of Ad­versaries, not so much to Judges, as to Catch-pols, without any judge­ment, or verdict of their equals, and without Due course, or Proces of Law, which should be Summons, At­tachment, and Distringas, before any Arrest, as aforesaid? Are they not taken in the Countrey from their Ploughs, which are their Livelihood, and their Countreys, and their Free­hold [Page 35]by Birth-right; by vagant Bum-baylies, and imprisoned there, till they give bail to appear at West­minster; and thence, instead of being remanded home to their sweet Farm­houses, large fields, and industrious Agricultures; are they not sent to stinking Goals, close dungeons, and idle Monk-cels, whereby they are allowed little more ground to walk upon while they live, than might serve them to lie under, when they are dead? Are not all the Corpora­tions of England, and their free-cho­sen Officers, (that should do them justice at home) disseised of their Freeholds by Birth-right, and Char­ters, before and since Mag. Char. when they are prevented of the ad­ministration of justice in execution of their Offices to which they were sworn, (and heritable successively from their Ancestours by Custom long before Mag. Char. and since confirmed by the same, and by Charters dated before, and since) by Certioraries, Habeas Corpus, &c. be­fore Judgement; and pretence of Errors after; and though never any proved, or assigned, yet the causes never remanded, but detained at [Page 36] Westminster, where the usual correcti­on of pretended Errours, is not by making any thing that is crooked, straight; but all that is straight, crooked; so that both Plantiffs, and Defendants give their titles for lost in a mist commonly; but he that hath the wrongfull possession, and money, holdeth it; and he that hath the right, and no money, goes to his grave without it? Are not all the People of England disseised of their Freehold, Liberties, Franchises, and Free customs, when they are depri­ved of that justice which they ought to have administred amongst them at home, by virtue of the Kings Writs (original for Enquiries, and judicial for Determinations) directed to Sheriffs of their own choise, in their own Counties, or Stewards of Hundreds, and Court-Barons, in their precincts, where the Free-holders themselves are Judges themselves, by ancient Common Laws, and Cu­stoms of England, before Mag. Char. and by it declared, and confirmed unto them as aforesaid? Can Writs of trespass executed for debt; or Capiases, grounded upon counter­feited Originals, be construed by any [Page 37]Law, to be due Proces of Law? Third­ly, Are men lawfully Outlawed upon Exigents for debt, grounded upon a repealed Statute? and are not all Debtors that are Outlawed, so Out­lawed? Are men lawfully Outlawed, that are Outlawed upon Exigents, grounded upon Summonitus, or Non est inventus, counterfeitly returned by Attorneys, who at the time of the return were no Sheriffs, or compe­tent officers? and are not all, or most Debtors, and Trespassers, that are Outlawed in London and Middlesex, so Outlawed? Are men lawfully Out­lawed upon any Exigents, that are Outlawed without the judgement of the Coroners of the Countie where­in they are Outlawed? Are the Co­roners of any Countie now adays, present at every, or any Countie, when, and where men are Outlawed? Are not their names nevertheless re­turned as Judges of every Outlary unknown to them, for the most part, or all? Are not those Returns false, and forged? and are such proceed­ings, the due course, and Proces of Law? How many thousands of the Free-men of England are Outlawed yearly, by such means? and how ma­ny [Page 38]of them undone, before they can reverse them? How many are impri­soned thereupon, and have all their estates seised for the King, by She­riffs chosen without the consent of the People? and often such as pur­chase their Offices, to gain by such means? How many Outlawries year­ly are so clandestinely carried, that the parties so Outlawed, can hear nothing thereof, before they be im­prisoned, and their estates destroy­ed as aforesaid? How many are fur­ther damnified by such Outlawries, procured of purpose, to debar them of their just suits in all Courts, until they reverse them? How chargeable are reversals thereof? What lawful­ness is it, or what honour, for the Courts at Westminster, to make un­lawfull prosit of such unlawfull pra­ctises? Cannot the Judges at West­minster be contented to have coun­terfeit Returns of their Originals in London and Middlesex, but they must also have the like Returns of their Exigents throughout the King­dom? Are not such Returns false, and perjurious in the Sheriffs that make them? Is it not sufficient for Judges, to perjure themselves, but that they [Page 39]must animate others to do so too, by not punishing them, when they know that practise? Are not the Sheriffs of London and Middlesex, and all the Coroners of the King­dom made liable by this practise to Actions of the Case, and to pay costs and dammages to the parties grie­ved? Are such Judges, Lawyers, &c. for the Peace, or Profit of the Com­mon-wealth, that beget, foment, or suffer the causes of such Actions, causelesly, but for their own ends and gains? Are such Courts to be called, or counted Courts of Justice, that maintain any Actions, or Arrests upon unjust grounds, or colour of any mis-begotten Laws, contrarie to Mag. Charta? Are not Assaults, Bat­teries, Rescues, Riots, and Homi­cides, frequent upon such Arrests? Are not many mens lives lost, and more hazzarded, and their estates ruined thereby? And if a Catch-poll be killed for making, or attempting such unlawfull Arrest, do not the Judges use to adjudge it wilful Mur­ther, though the wronged party doth but endeavour his justifiable de­fence? And have they not begotten a Statute for officers to plead the [Page 40]General issue, by colour of which they justifie themselves, and their creatures, and condemn the guilt­less? Are not the causers of Mur­ther, as worthy to be hanged, as the doers? Are not they that maintain such Arrests, to the same ends as their Predecessors, Imps of the same ge­neration? Why therefore their ad­vice desired, or received in such mat­ters? Are not the Releases of Errors, which Prisoners are forced to seal before they can be inlarged, rather proofs of their guiltiness, than ac­quittances of such practitioners? Are not their Errors manifest to be wil­full, and gainfull onely to them­selves, and hurtfull to the Common-wealth? are such Errors, or Pro­ceedings, to be called Due courses, or Proces of Law? Then (to speak once for all) is not the Due course, and Proces of Law obstructed, and perverted? and a wrong course pra­ctised, full of Errors, Lies, Forgeries, Perjuries, &c. (as alreadie appear­eth, and better shall hereafter) and cannot Law be executed without such practises? Doth not Mag. Char. and all its confirmations, shew how it may? Are not they sufficient lights, [Page 41]and guids for the Due course, Proces, and Proceedings which ought to be observed, in the right execution of Law? And doth not the Lord Coke confess them to be such, and that they never misguided any man, that certainly knew them, and truly fol­lowed them? Fol. 526. Fourthly, If no man shall be exiled, &c. Are not Debtors exiled from their Native Soils in Cumberland, or Cornwal, and from all their wordly comforts, of Wifes, Children, Families, Friends, and Estates, both Real, and Perso­nal when called, and forced by Ha­beas corpus &c. to attend Duke Hum­srey in Pauls, or Judge Owen in West­minster (as good dead as any Judges living) to hear or dispatch Suits by the Law of the Land in any way of Justice, while the Suitors money lasts; or to relieve them with any Alms, when their Purses are spent? And if at last sent to the Fleet, or Marshalsey, where they be pent up as aforesaid; are they not worse Ex­iled than into Turkie, where they may have more Liberty of Land and Sea, and live in less Slavery than un­der Goalers in England, and have more hopes to return home again [Page 42](like Sir Thomas Shirley, and many others) than from these Hells, whence few find Redemption? Had Henry of Bullingbrook been Imprison­ed for Debt here, (as such now are) when he was banished to France could he have hoped to be King of England, except he had made all his Judges, and Goalers, the best sha­rers of all his Usurpations, as all the cheating Prisoners in these places do theirs, as they and their Creditors can best tell, by dear, and daily ex­perience? Fifthly, If no man shall be destroyed, &c. unless by Verdict, &c. Are not all Prisoners for Debt, who are first forced themselves to destroy their small Estates to buy bread to eat in Idleness, and to pay Fees to Goalers, &c. and at last to Famish in the Fleet, or Marshalsey, &c. de­stroyed both in Lives, and Estates, and their Families to boot, without any Verdict given, or intended for their Lives? Nay are not all the Free-men of England, that are, or may be subject to Debts, consequent­ly subject to the like destruction? And worthy so long as they suffer the Laws of England, (contained in the glorious Fabrick of the Great Char­ter [Page 43] of the Liberties of England, built by their Ancestors for a perpetual Monument of their care of their Po­sterity, and their Liberties for ever) to be thus destroyed by an Hypocri­tical Generation of Pharisaical Pre­tenders to the onely knowledge of these Laws, which by that pretence, they thus pervert, to destroy all ho­nest men whom it should save, and to save all whom it should destroy or punish; and that for unlawful re­spects, and considerations tending onely to their own profits, and ends. Sixthly, If no man shall be condemn­ed, &c. but by the judgement of his e­quals according to the Laws of the Land; Are not all Debtors that are Famished as aforesaid, Condemned for their Lives in effect, though but for their Debts in appearance, with­out any Verdict of their equals, so in­tended, contrary to the Law of the Land? Seventhly, do not all the Judges at Westminster, sell Justice, when they sell Prisoners for Debt, their Writs of Habeas Corpus, &c. for money, when the King would have all his Writs of Grace to be given to his Subjects Gratis, and no Judge to take any Fee, or Reward for any [Page 44]thing but of himself? Eightly, Do they not deny Justice when they de­ny such Writs Gratis? Ninthly, Do they not defer Justice, when they detain poor men that are Bailable in Prison, while they have sufficient men ready to tender for their Bail, till they be forced to borrow money of other friends, and to send far, and stay long before they can receive it to loose their Bail in the interim, and be forced to seek others; by which delays, their Goalers Fees increase, and their Dyer, Lodging, and Ex­pences draw charges, which they might have saved to find Bread for their Wives and Children at home; who perhaps are forced to fast by that means, and to sell, or pawn their Cows, or Clothes for this mo­ney, this damnable money, thus ex­torted by a Judge, for scribling his Infamous name to a Writ, which doth but wrap a man, and his cause, faster in his clouches? O Merciless, Miserable, Mercinary Judge! that can neither give, nor lend so little as his name, to so much goodness in Policie, (if not in Charity) to give a man Liberty to breath, and take leave of his Home, upon security of [Page 45]more advantage both to Court, and Party, than his imprisonment to re­turn to his Pinfold. Radamanth him­self abhorreth such foolish covetous­ness. Do they not defer Justice, when by their Writs they cause In­dictments, Informations, and just Suits Commenced in other com­petent, and more proper Courts in all parts of the Kingdom, to be re­moved to Westminster, and there de­tained without any Tryal these 40 years? How many thousands of Pa­pists, and heinous Malefactors that should have been punished in, and by their Counties, and Courts at home, have by this means found Westminster, and its Courts, their onely Sanctuaries, and Pri­viledges for none but Eminent, Opulent, Impenitent Offendours? But is not Justice denyed, when any Bailable man is denyed to be Bail­ed? Or more, when Bail is accepted upon Oath for its sufficiency, and is denyed to be Filed, and the Party so Bailed in Law, detained Prisoner still, at the Judges, and Planriffs pleasures? Briefly, Is not the Administration of all the Law, and Justice in England, Ingrossed and [Page 46]Monopolized at Westminster, where the Judges and Courts assume to be chief, and do exercise a plenary ju­risdiction over all others, so that they suffer none but themselves to erre, or to abuse Law; nor any to accom­plish any Justice, or to reform any Errors, but onely themselves, who do pretend to correct all in their Ex­checquer-Chamber, where instead of correcting any, they confirm their own; which must be all as aforesaid. Lastly, is it unknown that they were wont to Buy their Offices of the Kings Servants, and therefore to Sell their Under-Offices to their own Servants, Attorneys, &c.? And was not this the Buying and Selling of Justice that is yet unpaid for, & had need so to be Reformed? Is it any reason that any should Buy Justice, and not Sell it for gain by the Bar­gain? Is it not Bought to that end? Is it not to that end, Judges neglect to give Attorneys their ancient Oath, whereby they were wont to be Sworn to do no Falshood, nor cause any to be done in their Courts; and if they knew any, to give know­ledge thereof to the Judges, &c. that they should increase no Fees, &c. (as [Page 47]you may read it at large in the latter end of the Attorneys Academy. Is it not to the same end that Judges neg­lect to give all Plantiffs for Trespass, their Oaths that the Trespass amount­eth to 40^f or more, or else let the Suit be Tryed in the Sheriffs Court at home, according to the Statute of Glocester, 6. Ed. 1. cap. 8.? And is it not likewise to the same end, they neglect to take security of all Plan­tiffs, to prosecute all Actions with ef­fect, or pay Costs and Damages to the Defendants, if they prove not their Issues? which Judges ancient­ly used to do, and still ought, before any Declaration be admitted, or Plea required, as saith the Mirror of Justice? fol. 64. b. Is it not to the same end the Chancery neglecteth to take the Oath of all Complainants to make good their Bills in all points, or pay Costs and Damages in case they fail, and that before any Sub-poe­na be granted them, according to the Statute 15. H. 6. cap. 4^o? And were not all well ended, if all the end were that none were forsworn for Injustice, but the chief Justices? (though comfortless for them to be so wretched as to have no associates,) [Page 48]is it not the worse for the People, that their Ministers which ought to be Sworn as aforesaid, are not? Whereby old Attorneys without ha­zard of Perjury, lead young Judges Sworn to what they know not, to do what they should not? as when so many subtil and lying Mercuries, direct so many covetous and blind Cupids to shoot forth their arrows, that they may stick them where they please, and commend the shoot­ers for hitting the marks that yield them the best sports of the gain?

The rest of this Charter I shall o­mit as aforesaid, for the reasons a­foresaid, and shall conclude this with the beginning of another, made in Confirmation, Renovation, and Per­petuation thereof, by King Edward the first, in the 28 year of his Reign, as followeth: viz. EDWARD by the Grace of God, King of England, Lord of Ireland, Duke of Guyen. To all Arch-Bishops, &c. greeting. We have seen the great Charter of the Lord Henry our Father, of the Liber­ties of England in these words: And so beginneth the Charter as aforesaid, and ondeth this, and it together, saying, ‘We ratifying and approving these gifts, and grants aforesaid, confirm, and [Page 49]make strong the same for us, and our Heirs perpetually, and by tenor of these presents renew the same, Willing, and granting for Vs, and Our Heirs, that this Charter, and all and singular its Articles for ever­more, shall be stedfastly, and invio­lably observed; And if any Article in the same Charter conteined yet hi­thirto peradventure hath not been observed, nor kept; We will, and by Our Authoritie Royal command from henceforth firmly they be ob­served. These, &c. being witnesses. Given at Westminster under Our own hand the 28 of March, in the 28 year of Our Reign.’

Again, where the L. C. maintaineth the Statute of Marlebridge made 51 Hen. 3. cap. 5. which saith, The great Charter shall be observed in all its Ar­ticles, as well in such as pertain to the King, as to others, and that shall be en­quired of before the Justices in Eyre in their Circuits, and before Sheriffs in their Counties when need shall be, and writs shall be freely granted against them that do offend, b [...]fore the King, or the Justices of the Bench, or before Ju­stices in Eyre, when they come into those parts, &c. And the offendors when they be convict shall be grievously pu­nished by our sovereign Lord the King, in form above mentioned.

Expost and Quer.I shall but ask, Why not Justices in Eyre still? And why not Writs Gratis sent to the Sheriff of every Countie, to enquire of offences, and offendors against the great Charter? And doth not this Statute prove, that Sheriffs ought to have such Writs, and to make such enquiries? And that the King referred himself, as well as others, to the judgements, as well of Justices in Eyre, as of the Justices of the Bench? and that he would have his Writs granted as well against him, as others, and that Gratis? doth it not futther prove, that Kings accounted the Justices in Eyre, his Justices, and their Court, his Court; as well as the Kings-Bench? how therefore doth the Lord Coke hereafter call them new Justices, and their Court, new Court? But more of that in its place.

Now having done with so much of Mag. Charta as I promised: and with the 5 Chapter of the Statute of Marlebridge: and the 8 of the Sta­tute of Glocester. Here ensueth the Confirmation of the great Charter, made at London 10 Octob. Anno 25. Ed. 1. three years before that which [Page 51]is Printed before it, because that containeth all the Charter in 38. chapters at large, and this but 7. In the First of which it confirmeth both Charters, and every Article thereof; both made 9^o; H. 3. in general words, as followeth, viz.

The Title of this Statute (saith the Lord Coke) is Confirmationes Char­tarum de Libertatibus Angliae & Forrestae,L. C. upon Cons. C. f. 526. viz. The Confirmations of the Charters of the Liberties of En­gland, and of the Forrest: And true it is (saith he) that hereby the said Charters are expresly confirmed; but they are also excellently interpreted, (which is a Confirmation in Law) for here is nothing Enacted, but is included within Magna Charta. And by the Commonalty (saith he) is to be under­stood, by the consent of all the Realm, by Authority of Parliament: and many times by the Commonalty of England, is signified an Act of Parliament, &c. before Printing, and before the Reign of King Hen. the 7^th, Statutes were Ingrossed in Parchment, and by the Kings Writ Proclaimed by the Sheriff of every Countie: this was the ancient Law of England, that the Kings Com­mandments issued, and were published in form of Writs (as then it was.) An excellent course, and worthie to be re­stored, [Page 53]&c. This Clause (saith he) is worthie to be written in letters of gold, viz. That our Justices, Sheriffs, Ma­jors, and other Ministers, which under us have the Laws of the Land to guid them shall allow the said Charters in all points, which shall come before them in Judgement. And here it is to be ob­served, That the Laws are the Judges Guides, or Leaders, according to that old Rule, Lex est Exercitus Judicum, viz. The Law is the Judges Armie: Tutissimus Doctor, viz. The safest Teacher: or Lex est optimus Iudicis Synagogus, viz. Their best Synagoug. And Lex est tutissimus cassis, viz. Their safest Fortress. There is an old legal word (saith he) called Guidagi­um, viz. Guidage, which signifieth an Office of guiding Travelors through dangerous and unknown ways. Here it appeareth that the Laws of the Realm, hath this Office to guid the Iudges in all causes that come before them, in the ways of right Justice, who never yet misguided any man that cer­tainlie knew them, and truly followed them. The sence of the words, That the great Charter is to be holden for the Common Law, is, that it is a Common Law to all, in amendment of the [Page 54]Realm; that is, of great mischiefs, and inconveniencies, which oppressed the whole Realm, before the making there­of.

Expost and Quer.Doth nor the Lord Coke by all this his expression, commend this Statute very highly? Why did he not in his duty cause it to be observed in his time? And had not Iustices of the Forrest, and other Iustices, Sheriffs Majors, and other Ministers of his time (had they received the Great Charter with the Kings Writs) power thereby, as well as he, to cause the said Charter to be published to the People, and that the King had con­firmed it in all points? Why did he (by neglecting his duty to send the said Charter and Writs unto them ac­cordingly) make them fail of their duties? Doth not the Lord Coke con­fess by this clause, Worthie, (as he saith) to be written in letters of gold, That Sheriffs, Majors, and other Mi­nisters, as well as Justices, and other Justices as well as those at Westmin­ster, have, or ought to have the Law of England to be their guid, and ought to allow Magna Charta in all points, which in any Plea shall be before them? [Page 55]Why then do the Iustices at West­minster by their Habeas corpus, and other Writs, (as aforesaid)▪ disturb, and prevent all Sheriffs, Majors, &c. to exercise their Offices, before Judg­ment, or after, without proof of In­justice, or manifest Errors commit­ted by them in their Iudgements? Why do not the Iustices at Wistmin­ster (when they have Persons, and Causes brought before them by vir­tue of their Writs) allow Mag. Car. to be Pleaded before themselves, since they will suffer no others to hear it? How can it be true, (when they do not) that the Law is their guid? Do not they assume the sole Guiding, Learning, Interpreting, Exercising, and Over ruling of the Law to themselves, when they suffer no other Iustices, or Ministers of the King, but themselves to have any Judgement therein, as aforesaid? Why do they bely the Law so much, as to call it their Guid, their Teacher, their Army, their Synagogue, their Fortress; when it is manifest, That their Attorneys, their Sollici­tors, their Catch-polls, and their Goalers, are their Guids, Teachers, Supernumerous Armies, and Invinci­ble [Page 56]Fortresses, (as they trust, but may be deceived) all whose ways are to Injustice as aforesaid? How can that Law be called Common to all, which They, and these their Creatures, Mo­nopolize, Ingross, and Appropriate all to themselves as aforesaid?

Whatsoever Judgement is given a­gainst this Statute of Magna Charta,L. Coke upon Con. C. f. 527. &c. is made void by this Act, and may be reversed by a Writ of Error, be­cause the Judgement is given against the Law; for this Act saith, Soir de fair & pur nienttenus, viz. as the Stat. Englisheth it self, It shall be undone and holden for nought.

Expost and Quer.If so? Why should not all Iudge­ments (appearing as aforesaid, to be contrary to Mag. Charta) which are given for Arrests, and Imprisonment of mens Bodies for Debt, be undone, [Page 57]and held for nought? Why did M^r. Garland lately trouble the most High Court of Parliament (where­of, by so doing, he shewed himself an unworthy Member) with a ridi­culous useless Act of his drawing, for the Enlarging poor Prisoners for Debt? Why did not he, (if he did ever read this place of the Lord ( [...].) mind the Parliament to command the Judges (who seem, if they have read it, to have forgot it) to reverse their Erroneous judgements against Debtors, so far as they extend to their Imprisonment, and to send their Liberate to all their Goalers, to set open all their Goal dores, and let forth so many of the Prisoners for Debt, as they have left alive? The poor, because they have no Estate whereof to pay; the rich, because they have Estates sufficient for all, or part; against which Estates, so much of their judgements may stand, as concerneth that, and not their Bo­dies: and Executions may be taken thereupon, by Elegit, or Fieri facias, according to the Statute of Westmin­ster the 2. cap. 18^th. agreeable to Magna Charta, and the Parliament not to be troubled, except to Im­power [Page 58]the Iudges by an Order, to re­ctifie their judgements according to that Law which is in force, and so forgo their Errors, and Repealed Statute of the 25^th of Ed. 3^d c. 17^th. which ought to be no Guid, Leader, or Teacher, to learned and grave Judges, that can never be misguided by the right law, if (as the Lord C. saith) they certainly know it, and be pleased truly to follow it. And by this course, as well the Creditors of the rich Debtors, as the poor Prisoners for Debt, (that have been wronged by the Judges Erronious judgements, and proceedings against Mag. Char­ta) may be partly redressed, and so rest satisfied, until the Parliament be pleased to right them further (as shall appear hereafter they may.) So like­wise may that Prisoner, (which is Im­prisoned again after his inlargement by Garlands Act) be Enlarged again by the same Judge that Committed him, without troubling the Parlia­ment, or People with any such Ap­peal, as is lately divulged; or suffer­ing the Apprentices Out-Cry to run so far, That now it will never be stopped till the Thieves be taken.

This Excommunication the Prelates could not pronounce without Warrant by Authoritie of Parliament, L. C. upon Confir Cart. f. 527. because it concerned Temporal causes.

Expost and Quer.Was not the Authority of this Parliament sufficient Warrant for Prelates to pronounce Excommuni­cation according to the Tenor, and limitation of this Act? Doth not the Lord Coke say before, That this Act is not onely an Express Confirmation of Magna Charta, but also, a Confirmati­on of it in Law? Doth he not say be­fore that; That Magna Charta should live for ever, and in all Successions of Ages for evermore? Is not the sub­stance [Page 60]of the Excommunication gi­ven by this Act to the Prelates to pronounce? Had the Prelates any more to do therein, but to pro­nounce an Excommunication? What meaneth Ipso Facto in the Act, but to let all future Ages under­stand, That the breach of Mag. Cha. which is a Declaration of the Funda­mental Laws of England, is such an Offence as deserveth an everlasting Curse inflicted by the Law it self up­on the Breakers for ever? Which Curse receiveth no more strength from the Pronouncer, than a Sen­tence of Death from a Iudge, who doth but tell a Fellon whom the Law condemneth, what shall be the manner of his Death. If any Excom­munication was ever pronounced by virtue of this Act (as there were two in two several Kings Reigns) were not those Excommunications in force, and so to continue as long as Magna Charta it self? the Prelates, and their Successours neglect of their Duties, by discontinuing such De­nunciations twice yearly, afterwards notwithstanding? If so? Are not those Excommunications still in force, except Absolutions be produ­ced, [Page 61]granted, and given by equal Authority to that whereby those Excommunications were Denoun­ced? If so? Are not Excommunica­tions, until Absolutions, of the same accompt, and validity in Law, as Out-lawries, until they be rever­sed? If so? Are not all the Lands, Goods, and Chattels of all Excom­municats, now the States, as formerly they were the Kings, and so Seiza­ble, Sequestrable, and Convertible to that use, until Absolution? And ought not satisfaction precede Abso­lution? Ought not that satisfaction extend to every particular man that hath been wrong'd in this case, which (as the L. C. saith) is a Temporal case, and so called, in respect of the inte­rest of all men, called by the Clergy, Temporal, for distinction from them­selves, that would be called Spiritu­al? And so (as I believe) not to be commuted by a Prelatical Sentence, to a trivial Pennance; nor pardoned by Parliament, without excepting every particular Interest. And what Parliament can Pardon, or Absolve Offendours against Magna Charta, but by the Rules of Magna Charta, without offending Magna Charta [Page 62]themselves, and incurring the same Excommunication, as they have in­curred that would be Absolved? If Excommunications be no Terrors to Atheistical Judges, Justices, &c. who neither Believe, nor fear, Hea­ven, Hell, God, Justice, nor Laws, (though they cannot in nature and reason, but know that such there are, and are to be beleived, feared, and obeyed) shall not Excommunicati­ons be sufficient Warrants for Chri­stians, English Christians in England, (being warranted not onely, as the L. C. saith, By Authority of Parliament, but of many Parliaments, such Parlia­ments of such Infallibility as were those wherein Magna Charta, and all its Confirmations were made, and grounded upon the Common-Laws of England, which, as all Lawyers profess, were grounded upon the Law of God, the Word of God, the God of Christians, Christ Jesus, the God of Truth, even Truth it self,) to put them in Execution? If not? To what ends are Parliaments, or the Laws of God, and man, to such as dare not, or will not, if, and when they may? Doth not the Statute of Ano. 1^o. P. & M. cap. 12^o. which [Page 63]made it Fellony for twelve English persons, or above, to assemble toge­ther of purpose to break any point of the Laws of England, imply it to be Warrantable for all the People of England to Assemble together, to cause the Laws of England, made by all their consents, to be observed, and to punish not onely the Breakers, but also the onely begetters, and causers of all the Breakers, and Breaches of all the Laws of Eng­land, the onely assumers of the knowledg thereof, and concealers of that knowledge from the People; so that none but themselves, can know­ingly break the Laws, because they will not let them know them? Last­ly, If Excommunications be no­thing formidable to Lawyers, to make them care whether they incur, or shun them, but as their profit guids them? Let us see what the L. Coke saith, fol. 536. concerning the conclusion of this Act, and the Seals that were put to it, and the Oaths of the King and Parliament, then and for ever, for the Ratification of it, omitted in the Stat. at large, in Print, but to be seen in the Tower, Rot. Parl. 7^o. Hen. 4^th. no. 60. begin­ing [Page 64]with the word Simile, &c. Note (saith he) the Solemnitie of this Act, in that all the Arch-Bishops, Bishops, Earls, Berons, &c. did put their Seals thereunto. A rare example, which was done for the obliging of them the more firmly to the observation of this Act, which concerned the Laws, Liberties, and Free-Customs of their Countrey; and for their greater Obligation for the due Ob­servation of this Act, they took a voluntary Corporal Oath.

And let us note,Expost & Q. that if the Judge­ment of God, and this Parliament, hath made the Prelates sensible of their slighting of their Predecessors Excommunications, seals and oaths? by what justice, or excuses, shall Lawyers avoid the same Judgement? And though the Ignorance of Mag. Charta, and the Law (which Lawyers have begotten & caused by conceal­ing the same from them as aforesaid) can be no safe Plea for any with God, or man, without prayers for Remission, and manifestation of Re­pentance; yet is Ignorance a better subject for mercy, than knowing wil­fulness; and the people, while igno­rant of Mag. Charta, are more capa­ble [Page 65]of grace for the breaking of it, than when they know it, if they put not the Iudgements of it, in Executi­on, against the causers of their of­fence.

Now I shall let you see, that there were two Excommunications de­nounced against the breakers of Mag. Charta, according to this Sta­tute; as followeth.

What though the Form of this Ex­communication be Popish?Expost and Quer. Is not the Substance the maintenance of Eng­lands Liberties? And is not that all which the meaning of this Law re­quireth? If Judges and Prelates, as well since King Hen. 8. as before, have neglected their Duties in Itte­rating the charge of their Functions, the first, in pronoucing Sentence, and the other in Executing it; doth not once pronoucing, & once exe­cuting of such one Sentence of Law, as concerneth all Ages, Sexes, and [Page 68]Conditions of People to learn and remember, no less for the Preserva­tion of their lives, and livelihoods, than Scriptures for their Salvation, take away the plea of Ignorance from all men? Shall any man com­mit that sin which he knoweth to be once so Declared by the Law, and think to avoid punishment because not often so Declared by Law-Pro­fessours? Are not all men bound to search the Scriptures, and learn the Laws at their perils therefore? If Ig­norance were a plea, shall knowledge be excused? Professors of knowledg? nay, such as ingross that Profession from all others, nay more, such as are the onely causers and punishers of all other mens Ignorance?

It appeareth that this Sentence was Denounced in the time of King Hen. 3^d. Now followeth another, Denounced upon the said Confirma­tion made in the 25^th. year of King 8d. 1^o. viz.

Doth not the word, Hereafter, Expost & Q. 1 ex­tend to all successions, and implie a Duration, as long as there be a Mag. Charta, and a breaker of it? Do not Parliamentarie Oaths, as well as their Laws, include absents, and futures, [Page 70]as well as present? If neither Oaths, nor Excommunications be obligato­rie to Atheists, shall not their hands, and seals, bind them and their Heirs, and Executors after them, as com­mon Bonds signed and sealed be­tween private parties, commonly do? And more specially, such as take up­on them the sole Execution, and Administration of the Laws, Liber­ties, and Freehold of England? Shall not Charters of Parliament, made, signed, sealed, and confirmed by Authoritie of Parliaments, bind all Subjects, their Heirs, Executors, and Administrators, as well, and as far, as private Charters of Feofments shall bind their Contractors, and their Heirs, &c. Nay, as far as Acts of Parliament can bind, till repealed? Is not every Court called Curia, of the Care it ought to have to execute that charge it undertaketh? and not to exact, and raise Fees, &c. for dis­charging themselves of all their said Obligations to do even Justice to all men, and to force men to pay those exactions, even for doing injustice? If all before written be not sufficient to discover that to be true, and that therefore the Lives, [Page 71]Lands, & Goods, possessed by Judges, Lawyers, all, or most of them, are in the States power to seize into their hands, to the use of the Common­wealth, as aforesaid; let us look a little further, and we shall find more that may. And first, the Statute cal­led Articuli super Chartas, viz.Stat. of Artic. on the great Chart. A. 28. Ed. 1. Arti­cles upon the great Charters, made 28. of Ed. 1. viz. the same year as the Confirmation at large (which consisteth of 38. chapters of Magna Charta) was made; proveth further, as followeth.

One of the causes for the making this Act, L. Coke f. 537, 538, 539. was (saith the Lord Coke, as in the Preamble is suggested) that there was no certain punishment in many points established by the said Charters against the violators of the same; which also by this Act (saith he) is remedied: And the word, People, here (saith he) doth include all the Kings Subjects, &c. And again, the word, Pain ne fuit estable, some read (saith he) Pain ne fuit execute, and that is true in effect; but the Original, is, Pain ne fuit estable; that is, no pain was set down certain: And (saith he, fol. 539.) This Act had but the force of a Charter, until confirmed by this Parliament, the 34^th Ed. 1. And that these Charters should be read four times in the year, in full County, here is [Page 75]an order taken for the publishing. And Ou remedie ne fuit avant, &c. is to be construed (saith he) where no Action was given by the Kings Writ, to be pur­sued at Common Law, &c. Again, here (saith he) for the better Execution of those glorious two Lights, Magna Charta, and Charta Forestae, a new Court, and new Justices were ap­pointed, &c. Again (saith he) these clauses against the Kings Servants out of their places, as well as others: And to hear the Plaints without delay, day by day, and to determine them without admitting such delaies as be at Common Law, was the first ground of the raising of the Justices called, Trail Baston, and their Courts so called, in respect of their precipitate proceedings from day to day, without such convenient leisure and time, as Common Law allowed, &c. they in the end had such Authoritie, as Justices in Eyer; but albeit they had their Authoritie by Act of Parliament, yet if they erred in judgement, a Writ of Error did lie by the general Rule of the Common Law, to reverse the Judge­ment in the Kings-Bench; which being once resolved, and known, and their Jurisdiction fettered with so many li­mitations, their Authoritie, by little and little vanish [...]d.

Expost and Quer.Was there any certain Pain establi­shed by this Statute, against the vio­lators of Magna Charta, other than by Commission in Eyer, that the Ju­stices might determine, and punish the Offendors by Imprisonments, Fines or Amerciaments, according to the Trespass? Ought not the Ju­stices of the Kings-Bench to have so punished all such as were Indicted before Sheriffs, or Justices in Eyer, who had power to inquire, and certi­fie them of all such Offendors, and Offences against Magna Charta, by the Statute of Marlebridge? 51. Hen. 3^d? Doth not the Lord Coke say else­where, That all Statutes ought to be construed so, as that there should be no failer of Justice: should not the Justices of the Kings-Bench have con­strued Magna Charta so? Doth not the 14^th chap. of Mag. Charta ex­presly direct; That all offendors ought to be Amercied by their equals, accord­ing to the quantitie of the Trespass? Doth the Lord Coke speak truth, when he saith, this Statute gave any man Remedie for the certaintie of the punishment, other than Magna Char­ta did before? Was it not made more uncertain by referring it to the Justi­ces [Page 77]in Eyers discretion, whether A­merciaments, Fyne, or Imprison­ment? Doth he not confess plainly, (when he saith, It is true in effect, that the Pain was not Executed, as some read, instead of the Pain was not Esta­blished,) That it was the fault of the Justices of the Kings-Bench, in not Executing the Pain of Amercying, &c. (as they might, and ought to have done) was the cause of Impo­wering the Justices in Eyer, (who were but Enquirers before) now to determine, and punish such Offen­dors, and Offences, as they did for­bear, viz. The Kings Servants, with whom by this time, they of the Kings-Bench tampered for their Offices? And was it not for the same cause, the people were Declared to be choosers of Justices in Eyer? And doth not the Lord Coke shew a great spight between himself, and his bre­thren; whom he would have to be ancient; and the Justices in Eyer, whom he calleth a new Court, and new Justices? And shew his Memo­ry to be weak, as his Envy was strong, when he is forced to give himself the Lye, (either here, or in his Exposition of the Stat. of Marle­bridge, [Page 78]where he saith; They were then Justices, and a court, though but for Inquirie? And upon the 23^th Chap. of Magna Charta; he saith, they used before that time to give charge to all Juries concerning Wears &c. Doth not the Lord Coke say, fol. 235. That Bracton wrote before the making West. 1. which was 3. Ed. 1? And doth not Bracton lib. 3. cap. 11, 12, and 13. say, Justices in Eyer were be­fore his time? Doth not Camden in his Britannia, pag. 104. say, They were Instituted by King Hen. 2? Doth not Hoveden in his Annais, part, poster. fol. 113. b. confirm the same? And add that K. Hen. 2. divided the Realm in six parts, & setled thre [...] Ju­stices in Eyer to every part, whose names he relateth? And doth not the Mirror of Justice lib. 3^o. Tit. 1^o. Justice in Eyer, declare their power at large? And as for their Election by the people, doth he not say, fol. 538. That Magna charta, &c. containeth the substance of all that is contained in these Articles? And doth he not say in his Preamble, That Magna Char­ta is an Act declarative of the ancient Laws, and Customs of England before it, and no introductive of any new? [Page 79]And fol. 558. That of ancient time, before the making of this Act, all such Officers, or Ministers, as were institu­ted, either for Preservation of the Peace of the County, or for execution of Justice (because it concerned all the Subjects of that County, and they had a great interest in the due and just exer­cise of their places) were by force of the Kings Writs in every several Coun­ty, chosen in full and open County, by the Free-holders of the same County? Again, (saith he,) So it was then, and yet is, of Coroners, and so it was then, and yet is, of Knights of the Shire for Parliaments; and of the Verdors of a Forest, and likewise it was of ancient time of the Sheriff of the County, and restored by this Act: but this is alter­ed by divers Acts of Parliament. Now were not Justices in Eyer therefore that were before Magna Charta chosen by the peole, as they were Ministers of Justice, wherein the people were concerned? And were they by this Act but restored to their ancient jurisdiction, as (the Lord Coke saith) Sheriffs were? Was not that alteration which was made by divers Acts of Parliament, made by such Acts as were contrary to [Page 80] Magna Charta? And are not, or ought not all such Acts to be void, (as the L. Coke hath elsewhere said?) Doth not these contradictions de­clare the Lord Coke to have been di­stracted with spight and envy against [...]ustices in Eyer? And where in this leaf, he would perswade the people to suspect Justices in Eyer, of corrup­tion, and Monopolizing justice to wrong the people that chuse them; can the people believe that these Ju­stices (who are to be chosen by them, and to be displaced by them, when, and as often as they see cause) will, or can wrong them more, than those chosen by the King and his Servants, without their consents, unless they can believe that they may be per­swaded to give their consents to wrong themselves? Is it not a Bull of less formality than ever any Po­pish Bull was, (keeping a man off with his Horns, That he shall have no hold of his tail) when he saith, That the clause, where no remedy was before, &c. ought to be expounded, where no Action was given by the Kings Writs, to be pursued at Common Law? Since by the Statute of Mar­lebridge, Justices in Eyer were to [Page 81]inquire by the Kings Writs; and now are, by express words of this chapter, not onely to inquire, but al­so to determine by virtue of their Commissions, without the Kings Writs? And what cause could they, or can any other Court determine by virtue of their Commission, without the Kings Writs, but is Actionable by the Kings Writs? What doth this Statute give by virtue of this Commission, if all things Actionable by Writs, be not determinable by these Commissions, without Writs? And what doth this Statute avail, if not constructable as others, so that there should be no failer of justice? Where was the failer of justice, but in the Kings Courts, and Iudges, in not executing justice upon the Of­fendors of Magna Charta? Doth it not therefore appear that the said clause (Where no Remedy was before) ought to be expounded, where no remedy was given before by Iustices in Westminster against the Kings Ser­vants, and themselves, that were the greatest contractors in the breaches of Magna Charta? Were not the Iustices in Eyer therefore inabled with a power to supply their de­faults [Page 82]faults, and to do right to the People, against the King himself, and all his Servants at Westminster, that wilfully failed in their justice and power? And where he saith; The Justices called, Trail Baston, had like autho­ritie as Justices in eyer, and commit­ted Errors, & upon pretence thereof, had all their proceedings transported to the Kings-Bench; doth it not appear by the Statute called, Ragman, that those Iustices were made by the King, without the consent of the people, and sent abroad (perhaps of purpose) to err and abuse the peo­ple, to give colour to the Kings-Bench, to send their Writs of Error, for the proceedings of the Iustices in Eyer (upon pretence of like Er­rors) so to suppress all Iustice against themselves, and their Creatures? Doth not the Lord Coke here withal prefer the chargeable delaies of causes (spun out by Termes, and Years,) before speedy justice done day by day, at mens own doors, which he calleth, Piecipitat? Doth he not ground this course, for sup­pressing speedy justice by Writs of Errors, upon the resolution of the Iudges at Westminster, which he al [Page 83]leadgeth as sufficient to maister Au­thority given by Act of Parliament? And is it not the resolution of all Lawyers, that no power but Parlia­ment, is equal to Parliament, and no Parliament to be so impowred as to cross Magna Charta, and its Confir­mations? Doth he not further (sol. 559.) alleadge the resolution of all the Iudges of England, against the King and his Councel, for an Errone­ous Act, when they had chosen a Sheriff for Lincoln in a case of necessi­ty, without the consent of the Peo­ple? But to hasten this Treatise to an end, I shall end this Statute for this time, with few chapters follow­ing, viz.

I shall say no more to this, than hath been said before.

Upon this I must ask,Expost and Quer. Is not a Writ of Debt, Summons? Should not that be given to the party which ought to be summoned? Should not an Attachement follow by distincti­on of 15. days, as this Statute pre­scribeth? Shall the repealed Statute of the 25^th of Ed. the 3^d, serve Law­yers turns to make a distinction be­tween a Plea real, and Personal? And shall that Writ of Summons be counterfeited, either in it self, or in its return, as aforesaid.

This is an Act of Confirmation, L. C. upon Ca. 16, f. 568. whereby the Statute of Westminster the 2^d. cap. 39^th. touching false re­turns, is confirmed.

Doth not the 2^d Statute of West­minster cap. 39. say,Expost & Q. That the King hath commanded that Sheriffs shall be [Page 85]punished by the Justices once or twice if need be for such false Returns? and if they offend a third time, none shall have to do therewith but the King, &c? Doth not the Court of Kings-Bench assume the King to be always there in Person? And what they speak, to be his own speech? Is it not they therefore that should punish Sheriffs for their false Returns, the third time of their offence? But is it not in­deed they, and their Creatures, as well as those of the Common-Pleas, do make false Returns in the names of the Sheriffs of L [...]ndon, and Mid­dlesex, and do consequently make those Sheriffs liable to Actions, as a­foresaid? How can they punish those Sheriffs for those false Returns, which they themselves suffer their Clerks to make, unknown to the Sheriffs, as aforesaid? And who but they cause, or suffer all Sheriffs falsly to Return Exigents with the words, Per judicium Coronatorum, and the Coroners names, who know no such thing? And if any man be Out-lawed without the judgement of the Coro­ners of his County, or any mention made thereof in the Sheriffs Return, is not that Outlawry as injurious to [Page 86]the Party, Perjurious in the Judges who admit such a Return, and pro­ceed upon it, and as Illegal in the Sheriff that makes such a Return, and as different from due Proces of Law, as the other? And do not those false Returns filed upon their Re­cords, make all their proceedings thereupon, false, and faint Actions as aforesaid? And if all before writ­ten be not sufficient to make it ap­pear to the world, that they are not onely Forgers, Perjurers, and A­nathema's themselves, but also the onely causers of all others to be, or be accompted the like? And that their Lives, Lands, and Goods, are in the immediate dispose of the pre­sent State, by the judgements and confessions of their own mouths? Behold their Oath, which they vo­luntarily take when they assume their places, whereby they binde themselves further, before God, and man, as followeth, viz.

Expost and Quer.If Atheists can perswade Christi­ans that this Oath was no binding for them that had taken it, (even the Wise, Learned, Reverend, Judges, Sages, Scientissimous Inter­preters of the Laws of England,) sufficient to keep them within the compass of their Oath, Law, and [Page 89]Knowledges? Shall not Christians perswade themselves, that it is a suffi­cient Confession, Declaration, and judgement of their own mouths that made it, that their forfeitures, viz. their Lives, Lands, and Goods, in case of their breach of any point of this Oath, are now immediately in the power of the State to dispose of to the publique use, at their plea­sures, without any further Proces, or proceedings in Law, but onely to give Order, and Warrant to Arrest the persons of such Offendors to stand to their censures; and to Se­quester their Estates, and to divide them to the said use, accordingly? Did Lords ever use any more Law than their own Wills, when they Se­questred, and punished their villains? Had Lords any more Law, Right, or Reason, to Sequester, and punish their villains at their own Wills, but for that their villains did take their Lands upon conditions to do those services which they and their Lords agreed upon, and gave their Lords their Oaths (as their greatest bonds) to perform those conditions, or in case of breach, to suffer their Lords to repossess their Lands, with the [Page 90]forfeitures of their Goods, (which they gained) and their Lives (which they sustained) upon the same? Was the Oath of a Villain (though made by Parliament, to the end that Lords should be well served by their Slaves in their private and meanest Offices) of as considerable conse­quence to be observed, or in default thereof, their forfeitures to be exe­cuted, as the Oath of Judges, made and Confirmed by several Parlia­ments, to the end, that the com­mon-wealth should be well served by their Justices in their publike, and most honourable (if rightly ser­ved) Offices of Judicature, and ad­ministration of Justice? Are not such Villains, as dare incroach, not onely upon their Lords Lands, and Estates, but also upon their Lives, and Liberties, dangerous, transcend­ent, Hyper-Prelatical Usurpers? Are not such Usurpers intollerable mis­chiefs in a Common-wealth? Who being sworn servants to the Com­mon-wealth (as by this Oath it ap­peareth the Kings Justices were) make all the Common-wealth their servants, to attend their Trains at Westminster at their pleasures? And [Page 91]all Prisoners for Debt, not onely their own Villains, but also Villains to their Villainous Goalors, and Slaves to their Slaves? Are not the meanest of the Free-People of Eng­land, interessed in the due executi­on of Justice, to which these Judges were sworn? (as well to them, as to Kings) and consequently ought they not to be such Lords as dare, and will take the forfeitures of such Vil­lains, as do them daily Injustice? Is not this Oath a sufficient Evidence in it self, that the takers of it, have, & do dayly break it? & cause all others that have, or do break it, to do so likewise? Since Kings and People have wholly referred themselves, and their Estates, not onely to the Ju­stice of their Judges, but also to their fatherly advertisements, and admo­nitions (whereby they ought not to suffer any that depend upon them, to err through ignorance) and they (contrariwise) admonish none not to offend, but suffer, and cause more to offend than willingly, and wit­tingly would; and so do, for want of such admonitions, much more increase, and enhance the Markets of their Justice, by suffering no o­ther [Page 92]Judges to admonish, or Justifie any offendors at home, and ingross­ing all to themselves at Westminster, or before such as they send to frip­per for them, in Assizes, Goal-Deli­veries, and Nisi prius [...]s. Have not some present Grafts of the old stock Judges of Assizes in possibility for the Coun­trey) & their Agents in Chancery, pro­cured several late Injunctions to be dissolved in Chancery, without the pri­vity of both parties whom they con­cerned, to the end onely to beget work for them in the Assizes, lest they should want better? Did our late Judges lawfully counsel King Charls in his busines, when they gave their Resolutions for him concerning the Ship-money? Did they not assent to a thing, or things, that turned to his dammage and disherison, and over­turned him, and his Posterity out of three Kingdoms, and his life to boot, when they assented to Ship money, and Monopolies? Did not the Kings Councel and other Serjeants, and Lawyers, draw (if not plot) all such Patents? Got they not more by their Fees, for their advise therein, (which were present pay) than the King did by his reservations for interest in [Page 93]those Grants which are yet in Ar­rear? Was any thing reserved to the King thereby, but what his Councel learned thought fit, and ad­vised him to take, and the Pa [...]ntees to give? Did not those Judges, that had the keeping of both the Kings Seals, assent to all those unlawfull things, whatsoever they Sealed? Briefly, doth not this Oath in every point evidence the Judges at West­minster, and their brethren to have been the chief betrayers of Kings and People in their chief trust, to guide and hold both in the right way, and did they not lead both wrong? And thereby are the chief Authors of all the blood spilt, and e­states ruined in these three King­doms, in and by these late Wars, which were undertaken for Refor­mation, onely of such deformities in Law, and Government, which (you see) they had power to keep in form by their lawfull judgements, or admonitions to the right, or not consenting to the wrong? Do not our Records, and History testifie, that all the Civil Wars of England, were alwaies undertaken for Refor­mation of Injustice, evil Govern­ment, [Page 94]and corrupt Lawyers that were alwaies the causers thereof, by breaking, and causing to be broken the Liberties of Magna Charta, which the People sought alwaies to reco­ver? Were not Hugh D'Burgo, Chief Justice of England, Walter D'Lancton, Lord Treasurer of England, Brember, Trisilian, Bellknap, Thorp, &c. exam­ples of their times in that case? If so few examples will not serve to make all Judges mend, should not all such Judges be made examples, to serve posterity to see that such evils are not necessary for Common-wealths? Shall such Extrajudical Judges, such lawless Lawyers, &c. as will not be tied by Oaths, made in, and by Parliaments; Excommunications denounced by Authority of Parlia­ments; Charters Signed, Sealed, and Confirmed in, and by Parliaments; nor by Acts, Laws, and Statutes made by full and free Parliaments; be suffered to sit with Christians in Parliaments to make Laws, Votes, Oaths, and other Obligations upon Christians, which shall be none to themselves? But let us see further, what an other Act of Parliament saith to this Oath, as ensueth, viz.

Expost and Quer.Doth not the King say here, He is bound by his Oath to maintain the [Page 99]Laws of the Land? Doth not the Lord Coke say before, That a King in his Politick capacitie cannot dye? Did not, or ought not all Kings of Eng­land take the like Oath as this King did? Were they not therefore bound to maintain the Laws of England as well as he? and to be advised, and ruled by their Judges, how to main­tain them? as the Oath of the Judges, this Statute, and others, do manifest they were? Are not Judges as Im­mortal as Kings in their Politick ca­pacity? Are they not bound by their Oaths, not onely to maintain, and execute the Laws of England against all men, without regard of Persons, but also to advise their Kings to maintain them, and how so to do, and to hinder, or not consent with their Kings to break them? Were not the maintenances (whereof the King here complaineth, and the procurements as well in Court, as in Countrey, whereby (he saith) the Laws, and the due execution thereof were disturbed) the remainders of the Factions of the Spencers, and o­thers, who in Edward the 2^d. his time had made such Judges, as had put all Laws out of all order; so [Page 100]that this King, being Edward the 3^d. could not reform what had been de­formed hitherto? but now endea­voureth to do it by means of this Oath made in Parliament in the 18^th. year of his Reign, and this Act made in the 20^th. If Kings en­deavoured to perform their duties (as this King did, and Judges would not) should not such Judges suffer, as in this Kings time divers did? If Kings, and Judges, (contra­ry to their Oaths, and Offices) omit their duties (as this Kings Father, and his Judges did) should not such Kings and Judges suffer for their de­faults, as he and they did? If Kings, and Bishops did lately neglect their duties, (contrary to their Oaths, and Offices) and were punished for their defaults? why not such Judges as were the greater Delinquents for suffering them so to offend? and more for consenting thereto? And more than that, when they advised the same? If the secret Sacriledge of one Achan deserved Gods indig­nation against all his People of Isra­el, until they discovered, and puni­shed him, and his Offence? What doth the manifest extortion (a sin no [Page 101]less prohibited than Sacriledge) of so many Achans, merit of Gods Judgements against the whole Nati­on of England, if they prosecute not, or leave unpunished, their Offences, which are more than Extortions; as Perjuries, Forgeries, Sacriledge it self, and divers others spoken of be­fore. Judge, O People? Judge, your selves, O ye People, least ye be Judged.

Eight Observable POINTS OF LAW; Executable by Justices of the Peace in their Counties, and Magistrates in their Corporations.
Necessary to be known to the COMMON PEOPLE.

1. The choise of all Officers of Peace and Trust, anci­ently in the People, cōfirm­ed by Magna Chart.1 COunties and She­riffs Turns, were ancient Courts in the time of King Arthur, & before; And in the Turns were tried all Pleas of the Crown; & in the Counties all Common-Pleas un­der fourty shillings without Writ; and above, to any value with Writs, according to the Law maxim, Quod placita de Catallis, debitis &c. quae summam 40^s. attingunt, vel excedunt [Page 104]secundùm legem & consuetudinem An­gliae, sine brevi Regis placitari non debent. See the Lord Coke upon the 35^th Chap. of Magna Charta; and upon the Stature of Gloucester fol. 310. & 312. Hundreds, and Court Burons have the same power, and rights, and neither Sheriffs nor Ste­wards are Judges, but suiters onely, fol. 312. And so all men were to have Law and Justice at home, cheap and near, and not to fetch it from West­minster, far and dear. And the Con­servators, otherwise called Guardians of the Peace before Magna Char­ta, and since; had all necessary po­wer to govern their Counties in Peace, and to execute all Laws con­ducing thereunto, and to command the power of their Counties to assist them; and were chosen (as all other Officers of Peace and Trust were) by their Counties, as the Lord Coke af­firmeth.

2. This Mutuatus is usual in the Kings-Bench, and Common-Pleas, to fetch poor men not worth 40. s. from York or Cornwall to London, for 5. s. debt or less; and to Outlaw him in the Common-Pleas, if he come not; which example other Courts of Record follow too much.2. As Superiour Courts ought not to incroach upon Inferiour, so the In­feriour ought not to de­fraud the Superiour, of those causes that belong [Page 105]to them: viz. Neither ought a man be sued in any Court of Record for debt not amounting to 40^s. by way of mutuatus, and other lawless tricks dayly used by Attornies; nor in any inferiour Court for debt of 40 shillings, or exceeding, by di­viding it into Actions under 40 shil­lings. In which cases the Defendant ought to be admitted to plead to the jurisdiction of the Court, and to have a Prohibition to stay the suit: see the Lord Coke, upon the Stat. of Glouc. fol. 311. And all Courts were to dismiss all Actions entred without sufficient bail to prosecute, answer­able for costs and damages. If non-suited, or cast; and not Jo. Do. and Rich. Ro. as is used. See F. H. Just. P. the Register, and Fitz. H. Nat. brevium at large. And no Court of Record was to proceed in any action of debt, before the Plantiff swore his said debt to be 40^s. or more, and his damage in trespass to be so much at least: And if Battery, that he was beaten indeed, to his uncurable hurt to that value. See the Stat. of Glouc. and the L. Coke upon it, with his [Page 106]reason for the discontinuance of this practice.

3. Doth not the de­nial of an Habeas Corpus, to bring a prisoner before a Judge without Fees, (both to Judge and Attorney) include the sale, delay, and deni­all of Justice, while the prisoner is unpro­vided to buy it.3. All the Kings Writs for the doing justice and right to all men freely and speedily, without de­lay or denial, ought to be granted, and had freely at the Kings cost: And justice ought to be done freely, with­out sale; fully, without denial; and speedily, without delay: whereby (saith the Lord Coke) it appeareth that justice must have three quali­ties, viz. To be Free, because no­thing is more vile, than what is ve­nal; Full, and perfect, that it may not halt; And speedy, because delay is a kind of denial. See the L. Coke upon the Stat. of Marlbr. chap. 80. Thus to have and do, was the Common Law of England, and the Liberties, and Right of the People before Mag. Char. and saved unto them by it: and the best Birth-right they ever had, or can have; whereby their Lands, Goods, Wives, Children, Bodies, Lives, Honours, and Estima­tions ought to be protected from in­juries. See the L. C. upon the 29 & 38 c. of M. C.

4. All defaults, & offences of Sheriffs, Coroners Escheatours, &c. inquirable, and punishable by Justi­ces of Peace.4. Therefore Magna Char. ought to be read, and published to the People in all Cathedrals twice yearly: And all breakers thereof are excommu­nicated ipso facto, and so twice pronounced by two Acts of Par­liament, Tit. confirm. & excom­mengm.t in Rast. abridg. fol. 65. and 148. And it ought to be read in full County in every shire, four times yearly, and all the breakers thereof inquired of there; and further inqui­red of, and punished by Fines, Impri­sonments, &c. by Justices in Eyre, two of every Counties chusing, whereby 12. or 14. may serve in cir­cuits throughout England, and Wales, divided into six or seven Provinces, as twelve did serve for all England divided into six. See, and compare Rast. abridg. fol. 65. and Rog. Ho­veden parte poster. Annal. fol. 548. The not reading, and publishing of Mag. Char. is the default partly of Sheriffs not requiring it; partly of the Clerk of the Crown, &c. not sending it to them under Seal. All defaults of Sheriffs, &c. are inquira­ble, and punishable by Justices of [Page 108]Peace; as Lamb. Fitz. H. Cromp. Dali &c. affirm at large.

5. Observe the peo­ples choice resumed by this Statute, when the King presumed to make Justices of P. and under that speci­ous Title to impower them, first to affront, and by degrees to sup­press, and at last to extinguish the larger power of Conserva­tours. A Prerogative imposture devised by Lawyers for their own advantage, when they got the King to confer this creation of Justices of Peace, up­on his Chancellours, and Keepers, to whom their creatures be­came obliged to sub­ject all England to Westminster, con­trary to Mag. Char.5. Justices in Eyre are discontinued long since, and not onely for that they were interrupted, and wearied out by the Prerogative Judges, and Courts at Westminster by their Certioraries, Corpus cum causa, Errours, and other Writs (as the Lord Coke confesseth in his Exposition of the Stat. called A [...]t. super Chart. fol. 540.) but also for that Justices of Assize, Justices of Peace, and all Oyers, and Terminers by their Commissions, and Magistrates of Corporati­ons by their Charters, were enabled & sworn to hear and determine all Trespasses, Contempts, Oppressions, and Misde­meanours, according to the Laws and customs of England, as appear­eth in, and by all Commissions of the Peace, Oyers, Terminers, and Charters that have Oyer and Termi­ner, and by the Stat. made for the [Page 109]first institution of Justices of Peace, in the 18^th year of Ed. 3^d. in which year was also ordained the Oath of all Judges, and Justices of Oyer and Terminer for the due execution of justice, without sale, delay or denial, which the thrice reverend Judge Anthony Fitz Herb. admonisheth them that consider it, and their du­ty to God, and their Countrey, not to break upon any conditions, Nat. brevium fol. 240. d. but now the common practice is otherwise.

6. Justices of Peace ought not to be sedu­ced to transgress M. C. and the Petition of Right, by any Stat. that contradicts them, nor to lose the publike interest for a­ny Prerogative usur­pation, but to re-as­sume their authority fro People, to act as con­servatours of the an­cient peace, and pro­fit of the Common­wealth: as in cases of Remitter, men stand to their best Title.6. Any that Will, ought to have Commissions of Oyer and Terminer for all Extortions, Oppressi­ons, and Misdemeanours of Sheriffs, Under sheriffs, Escheatours, Bayliffs, Clerks, and all other Of­ficers: See Cromp. Just. Peace, fol. 51.8. Fitz H. Nat. br. fol. 112. d. And Justices of Peace, and all other Commissioners that ought by their Commis­sions, and Oaths, to punish all such of­fences, & do not, are no less than por­jurers, and the greatest malefactours of all other, themselves. Nor can any [Page 110]Writs of Certiorari, Corpus cum causa, Errour, Supersedeas, or putting out of Commission, excuse or supercede them to finish their Judgements, and Executions in all such causes brought in question before them: See and compare the Stat. of 2. Ed. 3. and 14. Ed. 3.14. and the 20. Ed. 3.1. and the Procedendo thereupon in Fitz. H. Na. Bre. fol. 240. where it is said; They shall proceed to justice ac­cording to law, notwithstanding any Letter, Commandment, Prohibition, Writ, Privy-Seal, or Great Seal to the contrary. And if any such things be granted by the King, or any of his Judges, or Coutrs, such a Procedendo ought to be granted by the Keeper of the Broad Seal to countermand them; and to command justice, judgement, and execution to be done, even against the King, much ra­ther against Judges, who under co­lour of Authority and justice, delude and wrong Kings, and People: For (saith the L. Coke upon the Stat. of Marlebridge, cap. 5.) there is no grea­ter injustice, than when under colour of Justice, men are injured: but Writs of Certiorari Corpus cum causa, and Errour, ought to be had, and granted, [Page 111]upon proof of malice, partiality, in­justice, or errour in matter, commit­ted by any inferiour Court, but not upon suggestions, or bare suppositi­ons, as is used: See and compare therefore all the said Statutes in this case, together with M. Dearhams Manuel, p. 25. Nor by any Superiour Judges or Courts that are parties, or concerned in the cause. See the L. Coke upon Art. super Chart.

7. These oppressi­ons are daily commit­ted by mercinary law­yers, by colour of Sta­tutes of their own de­vices against Mag. C. which Stat. ought to be repealed, & the long­er execution thereof resisted by all, or any necessary means.7. The granting of Writs, or Commissions to do injustice by, or to stay, or delay justice, where it is done, or do­ing; or to deny Writs or Commissions to cause or further justice to be done, (which always was, and yet is the practice of the Prerogative Judges at Westminster; not onely to cross, & interrupt Com­missioners legally chosen in, and by their Counties, (as Justices in Eyre were) and such, and all Justices of Peace, and Officers of Trust, and concernement in, and to the Com­mon-wealth, still ought to be) is the worst of all Oppressions, and a ge­neral destruction of Law and People, [Page 112]committed by colour of an usurped Authority, as saith the L. Coke up­on the Statute of Marlebr. cap. 5. To prevent which (his Lordship further saith) It is lawful for the Peo­ple to take up Arms, or for Inferi­our Judges to commit their Superiors and that before any Verdict, or Judge­ment, because they worthily loose the benefit of Law, who intend to subvert it; and Subordinate authority is more to be obeyed, and assisted in the execu­tion of Justice, than the Supreamest to be indured to obstruct it. All this, and more, is to be read in effect, in the L. Cokes Exposition upon Art. su­per Char. and the Stat. of Marl [...]br. which if executed by Justices of Peace in their Counties, and Ma­gistrates in their Corporations, would soon regulate abuses, settle Peace, and much inable the State, and Common-wealth to pay publike debts, and relieve distressed Soul­diers: For it is Law it self, as virtue it selfe, invirtuateth, dignifieth, and authorizeth her true servants to exe­cute her precepts; and confoundeth, expulseth, and turneth out of her service all her unjust Stewards, and underminers: As Jacob, and David [Page 113]were preferred before their elder brethren; and Saul, Jeroboam, &c. were confounded by, and for their own Apostacies.

As in all these cases, &c. all Justi­ces of Peace should be carefull to observe their Oaths, and per­form their duties to the Common-wealth (whereof they are e­minent members) So, no doubt the Free­men of England, would be ready to as­sist them in the re­gaining and preserva­tion of their ancient Birth-rights, Laws, and Liberties. Deus Faxit.8. Under the Titles of Trespases, Contempts, Oppressions, Misdemea­nours, are comprehended all breaches of Magna Char, and all Offences a­gainst all Statutes in force, and concurrent with Mag. Char. and the Petition of Right, which all Justices of Peace, and Magistrates in their se­veral jurisdictions, are Authorized, and sworn to hear and determine, without fear, favour or respect of per­sons. How then to be excused, or delayed by any Writ, or command of any Superiour? And how are the Judges of the Kings-Bench (whereof the chief was the Kings Deputy by Writ) now Superiour, or equal to any other Judges, or Justices? If that ma­xim be true moritur Actio cum Per­sonâ? But the Office of a Deputy dyeth with its Master, as a Letter or Warrant of Attorney, with its ma­ker: [Page 114]the King-Bench may be spa­red as well as his person? And all causes in this Common-wealth, be called Common-Pleas, and tryed by the Common Law of the land, and Verdicts of common people, and Free-holders of every County, and Corporation, before the Free Judges, & Magistrates freely chosen by the said Common and Free-Peo­ple, to justifie them at home, and not before mercinary makers, expoun­ders, and sellers of all Lawes, and Liberties, as they please at Westmin­ster. And doth not the said Stat. of 28. Ed. 3. warrant Justices of Peace, or any two of them (whereof one to be of the Quorum) to call and keep Sessions as often as they see need to do justice to their Countrey? See the Stat. at large, and Cromp. I. P. fol. 112. and F. H. I. P. fol. 10.

Whereunto adde, That as Magna Charta compriseth all the Law of this land agreed upon by Kings and People, and would be read and pub­lished in English (as aforesaid) for the better understanding thereof by all English People, to the end, that the ignorance of their Law, should be not excuse for any of them to [Page 115]transgress it: So how needless it is, if not pestiferous, to have this Com­mon-Law reduced to a private mer­cinarie Trade, or particular science exceeding the seven Liberal, by such professours thereof, as have, and do endeavour to disguise, mask, and hide it from all but themselves, in base French, and Latine intricacies and obscurities, to the end to make all persons offendors thereof, and none excusable, but by their resolu­tions of their own Riddles, which are alwaies answerable to their Fees (be the cause right or wrong) where­by the cure of Law becometh an in­curable disease, until that superflu­ous mercinary profession be abolish­ed, or regulated, so as the best and soundest Lawyers may be used in Parliaments (as in former times) to sit upon Wol-sacks, to answer to what that high Court shall be pleas­ed to aske them, and not as mem­bers of that Court, to make Lawes, and Oaths for others, which they never observe themselves but for their own gain, and the peoples da­mage: To which end, they alwaies preamble their inventions against Mag. Char. with titles of Acts for the [Page 116]good of the people, when in their subsequents they hurt all but them­selves; As (passing by all former) their last Acts for the inlarging of poor prisoners for debt, sufficiently witness; whereby neither creditor nor debtour are any way relieved, but both further entangled, and Lawyers Fees more procreated; Vi­deat experientia. Conclusivè; That there can be no firm peace, or end of Wars, till there be an end of mer­cinarie professours of Law, less needful, or useful for Parliaments or People, than Bishops, or such as might be used there, or elswhere, for saying, or reading prayers; while these neither pray, preach, nor stu­dy, but their own lucrative magnifi­cence every where upon the peo­ples purses.

Adde lastly; Such Justices of Peace as will not execute Mag. Char. with its confirmations, and the Petition of Right, and desert, and wave the exe­cution, and practice of contradicto­ry Statutes, (for zeal to their Crea­tours, or fear to be unmade by those that made them) ought to be de­serted and waved by all good Patri­ots of their countrey, as excommu­nicated [Page 117]persons, and breakers of M. Chà. And such onely as will execute Mag. Ch. &c. ought to be confirmed by the choise of the People in their Counties respectively, whereby they may act as the ancient Conser­vatours of the Peace did by the Common Law of England before Mag. Char. and since, which was, to conserve the Peace of England by all necessary means, word, or sword; un­limited by Prerogative Statutes de­vised by mercinary Lawyers, to steal from the People their birth-right Authority in the name of the King, unto themselves, to sell, delay, and deny it at their pleasures; which to do, is apparently contrary, not onely to Mag. Char. and the Common Laws of England, and also to common rea­son, but chiefly to the divine Provi­dence of God: for neither Law, Rea­son, nor Divine justice, would or­dain a man to conserve the publike peace of Gods people (which peace, as they, is his own) without giving that man an unlimitable power, by which he may execute his Office, and without which he cannot.