THis excellent Law holds the first place in our Statute Books, for though there were, no doubt, many Acts of Parliament long before this, yet they are not now extant; 'tis called Magna Charta, or the great Charter, not in respect of its bulk, but in regard of the great im­portance and weight of the matters therein contained; it is also stiled, Charta Libertatum Regni, The Charter of the Liberties of the Kingdom; And upon great Reason (saith Cook in his Proem) is so called, from the effect, quia Liberus facit, because it makes and preserves the People free. Though it run in the stile of the King, as a Charter, yet (as my L. Cook well observes on the 38 chap.) it appears to have passed in Parliament; for there was then a fifteenth granted to the King by the Bishops, Earls, Barrons, free Tenants and People, which could not be, but in Parliament, nor was it unusual in those times to have Acts of Parliament in a form of a Charter, as you may read in the Princes Case, Coo. Rep. l. 8.

Likewise, though it be said here, That the King hath given and granted these Liberties, yet [Page 20] they must not be understood as meer Emana­tions of Royal favour, or new Bounties grant­ed, which the People could not justly challange, or had not a right unto before; for the Lord Cook in divers places asserts, and all Lawyers know, that this Charter is for the most part only Declaratory of the principal ground of the Fun­damental Laws and Liberties of England; No new Freedom is hereby granted, but a Restitu­tion of such as lawfully they had before, and to free them of what had been usurped and en­croached upon them by any Power whatsoever; and therefore you may see this Charter often mentions sua jura, their Rights and Liberties, which shews they had them before, and that the same now were confirmed.

As to the occasion of this Charter, it must be noted, that our Ancestors, the Saxons, had with a most equal poize and Temperament, very wisely contrived their Government, and made excellent Provisions for their Liberties, and to preserve the People from Oppression; and when William, the Norman, made himself Master of the Land, though he be commonly called the Conqueror, yet in truth he was not so, and I have known several Judges that would reprehend any Gentleman at the Bar that casually gave him that Title; for though he killed Harrold the Usurper, and routed his Army, yet he pre­tended a right to the Kingdom, and was admit­ted [Page 21] by compact, and did take an Oath to observe the Laws and Customs.

But the truth is, he did not perform that Oath so as he ought to have done, & his Successor Wil­liam Rufus, King Stephen, Henry the 1st, & Richard likewise made frequent encroachments upon the Liberties of their People; but especially King Iohn made use of so many illegal devices to drain them of Money, that wearied with intollerable Oppressions, they resolved to oblige the King to grant them their Liberties, and promise the same should be observed, which King Iohn did in Running-Mead between Saints and Windsor, by two Charters, one called, Charta Libertatum, The Charter of Liberties (the form of which you may read in Matthew Paris, fol. 246. and is in effect the same with this here recited) the other, The Charter of the Forrest, Copies of which he sent into every County, and command­eth the Sheriff, &c. to see them fulfilled.

But by ill Council he quickly after began to violate them as much as ever, whereupon Di­sturbances and great Miseries arose, both to him­self and the Realm. The Son and Successor of this King Iohn, was Henry the third, who in the 19th Year of his Reign, renewed and con­firmed the said Charters; but within two Years after cancelled them by the pernicious Advice of his Favourites, perticularly Hubert de Burgh, whom he had made Lord chief Justice; one that in for­mer times had been a great lover of his Country, [Page 22] and a well-deserving Patriat, as well as learned in the Laws, but now to make this a step to his Ambition (which ever Rideth without Reins) perswaded and humoured the King, that he might avoid the Charters of his Father King Iohn, by Duress, and his own Great Chatrer, and Charta de Foresta also, for that he was with­in Age, when he granted the same; whereupon the King in the eleventh Year of his Reign, be­ing then of full Age, got one of the Great Char­ters, and of the Forrest into his Hands, and by the Counsel principally of this Hubert his Chief Justice, at a Council holden at Oxford, unjustly cancelled both the said Charters, (notwith­standing the said Hubert de Burgh was the Pri­mary Witness of all Temporal Lords to both the said Charters) whereupon he became in high favour with the King, insomuch that he was soon after (viz. the 10th of December, in the 13th Year of that King) created (to the highest Dignity that in those times a Subject had) to be an Earl, viz. of Kent: But soon after (for Flatterers & Humorists have no sure foundation) he fell into the King's heavy Indignation, and af­ter many fearful and miserable Troubles, he was justly, and according to Law, sentenced by his Peers in an open Parliament, and justly degraded of that Dignity, which he unjustly had obtained by his Counsel, for cancelling of Magna Charta, and Charta de Foresta.

In the 9th Chapter of this Great Charter, all [Page 23] the Ancient Liberties and Customs of London are confirmed and preserved, which is likewise done by divers other Statutes, as 14 Edw. 3. Chap. 2 &c.

The 29th Chapter, NO FREE-MAN SHALL BE TAKEN, &c. Deserves to be written in Letters of Gold; and I have often wondred the Words thereof are not Inscribed in Capitals on all our Courts of Judicature, Town-Halls, and most publick Edifices; they are the Elixer of our English Freedoms, the Store-house of all our Liberties. And because my Lord Cook in the second part of his Institutes, hath many excel­lent Observations, his very Words I shall here Recite.

This Chapter containeth Nine several Branches.

First. That No man be taken or imprisoned, but per legem terrae; that is, by the Common-Law, Statute-Law, or Custom of England; for these words, per legem terrae, being towards the end of this Chapter, do refer to all the precedent matters in this Chapter; and this hath the first place, because the Liberty of a man's Person is more precious to him, than all the rest that fol­low, and therefore it is great Reason that he should by Law be relieved therein, if he be wronged, as hereafter shall be shewed.

2dly. No man shall be desseised; that is, put out of Seisin, or dispossessed of his Free-hold, that is, Lands or Livelihood, or of his Liberties, or free Customs, that is, of such Franchises and Free­doms, [Page 24] and free Customs as belong to him, by his free Birth-right, unless it be by the the lawful Judgment, that is, Verdict of his Equals (that is, of men of his own Condition) or by the Law of the Land, that is (to speak it once for all) by the due Course and Process of Law

3dly. No man shall be Out-lawed, made an Ex lex, put out of the Law, that is, deprived of the Benefit of the Law, unless he be Out-lawed ac­cording to the Law of the Land.

4thly. No man shall be Exiled or Banished out of his Country, that is, nemo predit patriam, no man shall lose his Country, unless he be Exiled according to the Law of the Land.

5thly. No man shall in any sort be destroyed, (Destruere id est quod prius structum & factum fuit penitus Evertere Ex diruere) unless it be by the Verdict of his Equals▪ or according to the Law of the Land.

6thly. No man shall be condemned at the King's Suite, either before the King in his Beneh, where the Pleas are Coram Rege (and so are the Words, nec super eum ibimus, to be understood) nor be­fore any other Commissioner or Judge what­soever; and so are the words, nec super eum Mi­timus, to be understood, but by the Iudgment of his Peers, that is, equals, or according to the Law of the Land

7thly. We shall sell to no man Iustice or Right.

8thly. We shall deny to no man Iustice or Right.

9thly. We shall defer to no man Iustice or Right.

[Page 25]Each of these we shall briefly explain:

1st; No man shall be taken, (that is) restrain­ed of Liberty by Petition, or suggestion to the King or his Council, unless it be by Indictment or Presentment of good and lawful men, where such Deeds be done. This Branch, and divers other parts of this Act, have been notably Ex­plained and Construed by divers Acts of Parlia­ment.

2dly; No man shall be Disseised, &c. Hereby is intended that Lands, Tenements, Goods and Chattels, shall not be seised into the King's hands contrary to this Great Charter, and the Law of the Land; nor any man shall be disseised of his Lands or Tenements, or dispossessed of his Goods or Chattels, contrary to the Law of the Land.

A Custom was alledged in the Town of C. that if the Tenant cease by two Years, that the Lord should enter into the Freehold of the Tenant, and hold the same until he were satisfied of the Arrearages. It was adjudged a Custom against the Law of the Land, to enter into a mans Freehold in that case, without Action or Answer.

King Henry the 6th, granted to the Corpo­ration of Dyers within London, Power to search, &c. And if they found any Cloth dyed with Log-Wood, that the Cloth should be forfeit. And it was adjudged, that this Charter concerning the For­feiture, was against the Law of the Land, and this Statute; for no Forfeiture can grow by Letters Pattents.

[Page 26]No man ought to be put from his Livelihood, without Answer.

3dly, [No man Out-lawed] that is, barred to have the benefit of the Law. And note, to this word Out-lawed, these words, unless by the Law of the Land, do refer [of his Liberties:] This word hath three Significations.

1st, As it hath been said, it signifieth the Laws of the Realm, in which respect this Charter is called Charta Libertatum, as afore-said.

2dly, It signifieth The Freedom the Subjects of Eng­land have: for example, the company of Merchant-Taylors of England, having power by their Char­ter to make Ordinances, made an Ordinance, That every Brother of the same Society should put the one half of his Cloaths to be dressed by some Cloath-worker free of the same Company, upon pain to for­feit ten Shillings, &c. And it was adjudged that this Ordinance was against Law, because it was against the Liberty of the Subject, for every Sub­ject hath freedom to put his Cloaths to be dres­sed by whom he will, &c. sic de similibus. And so it is, if such, or the like Grant had been made by the Letters Pattents.

3dly, Liberties signifie the Franchizes & Privi­ledges, which the Subjects have of the Gift of the King, as the Goods & Chattels of Fellons, Out-Laws, and the like, or which the Subject claims by Prescription, as Wrack, Waif, Stray, and the like.

So likewise, and for the same Reason, if a Grant be made to any man, to have the sole ma­king of Cards, or the sole dealing with any other [Page 27] Trade, that Grant is against the Liberty and Freedom of the Subject, that before did, or lawfully might have used that Trade, and con­sequently against this Great Charter.

Generally all Monopolies are against this great Charter, because they are against the Liberty and Freedom of the Subject, and against the Law of the Land.

4thly, [No man Exiled] that is, Banisht, or forced to depart, or stay out of England, with­out his consent, or by the Law of the Land: No man can be exiled, or banished out of his Native Country, but either by Authority of Parliament, or in case of Abjuration for Fellony, by the Com­mon-Law: And so when our Books, or any Re­cords, speak of Exile or Banishment, other than in case of Abjuration, it is to be intended to be done by Authority of Parliament, as Belknap and other Judges, &c. banished into Ireland in the Reign of Richard the second.

This is a beneficial Law, and is construed be­nignely; And therefore the King cannot send any Subject of England against his Will to serve him out of the Realm, for that should be an Exile; and he should perdere patriam: No, he cannot be sent against his Will into Ireland, to serve the King or his Deputy there, because it is out of the Realm of England; for if the King might send him out of his Realm to any place, then under pretence of Service, as Ambassador, or the like, he might send him into the furthest [Page 28] parts of the World, whom being an Exile, is prohibited by this Act.

5thly, [No man destroyed] that is, Fore-judged of Life or Limbs, or put to torture or death, every Oppression against Law, by colour of any usurp­ed Authority, is a kind of Destruction, and the words aliquo modo, any otherwise, are added to the verb destroyed, and to no other Verb in this Chapter; and therefore all things, by any manner of means, tending to Destruction, are prohibited: As if a man be accused or indicted of Treason or Fellony, his Lands or Goods can­not be granted to any, no, not so much as by promise, nor any of his Lands or Goods seized into the Kings hand, before he is attainted; for when a Subject obtaineth a promise of the for­feiture, many times undue means, and more violent Prosecution is used for private Lucre, tending to destruction, than the quiet and just proceeding of the Law would permit; and the party ought to live of his own until Attainder.

6thly, [By lawful judgment of his Peers] that is, by his equals, men of his own Rank and Con­dition. The general division of Persons, by the Law of England, is, either one that is Noble, and in respect of his Nobility, of the Lords House of Parliament, or one of the Commons, and in respect thereof, of the House of Commons in Parliament. And as there be divers degrees of Nobility, as Dukes, Marquesses, Earls, Viscounts and Barrons, and yet all of them are compre­hended [Page 29] under this word Peers, and are Peers of the Realm; so of the Commons, they be Knights, Esquires, Gentlemen, Citizens and Yeomen, and yet all of them of the Commons of the Realm. And as every of the Nobles one is a Peer to another, though he be of a several degree, so it is of the Commons; and as it hath been said of Men, so doth it hold of Noble Women, either by Birth or Marriage.

And forasmuch as this Judgment by Peers is called lawful, it shews the Antiquity of this man­ner of Tryal: it was the antient accustom­ed legal course long before this Charter.

7thly, [Or by the Law of the Land] that is, by due Process of Law, for so the Words are expresly expounded by the Statute of 37 Edw. 3. Chap. 8. and these Words are especially to be refered to those fore-going, to whom they re­late; As, none shall be Condemned without a law­ful Tryal by his Peers, so none shall be Taken, or Imprisoned, or put out of his Freehold, without due Process of the Law; that is, by the Indictment or Presentment of good and lawful men of the place, in due manner, or by Writ original of the Common-Law.

Now, seeing that no man can be Taken, Ar­rested, Attached, or Imprisoned, but by due Process of Law, and according to the Law of the Land, these Conclusions hereupon do follow:

1. That the Person or Persons which commit any, must have Lawful Authority.

[Page 30]2. It is necessary that the Warrant or Mitti­mus be Lawful, and that must be in Writing un­der his Hand and Seal.

3. The Cause must be contained in the War­rant, as for Treason, Fellony, &c. suspicion of Trea­son or Fellony, or the like perticular Crime: for if it do not thus specifie the Cause, if the Prisoner bring his Habeas Corpus, he must be discharged, because no Crime appears on the return; nor is it in such case any Offence at all, if the Prisoner make his escape▪ whereas if the Mutimus contain the Cause; the escape would respective­ly be Treason or Fellony, though in truth he were not Guilty of the first Offence, and this mention­ing the Cause, is agreeable to Scripture, Acts 5.

4. The Warrant or Mutimus, containing a law­ful Cause, ought to have a lawful Conclusion, viz. And him safely to keep until he be delivered by Law, &c. and not until the party committing shall further order.

If a man by colour of any Authority, where he hath not any in that perticular case, shall pre­sume to Arrest or Imprison any man, or cause him to be arrested or imprisoned, this is against this Act, and it is most hateful, when it is done by Countenance of Justice. King Edward the sixth did Incorporate the Town of St. Albans, and granted to them to make Ordinance, &c they made a by-Law upon pain of Imprisonment, and it was adjudged to be against this Statute of Mag­na Charta, so it had been, if such an Ordi­nance [Page 31] had been contained in the Pattent it self.

[We will sell to no man, deny to no man, &c.] This is spoken in the Person of the King, who in Judgment of Law in all Courts of Justice is present; and therefore every Subject of this Realm, for Injury done to him in Bonis, Terris, vel Persona, in Person, Lands or Goods, by any other Subject, Ecclesiastical or Tempo­ral what-ever he be, without exception, may take his Remedy by the Course of the Law, and have Justice and Right for the Injury done him, freely without Sale, fully without any denyal, and speedily without delay; for Justice must have three Qualities, it must be Libera, free; for nothing is more odious then Justice set to sale; plena, full, for Justice ought not to limp, or be granted piece-meal and Celeris, speedily: quia Dilatio est quaedam negatio, Delay is a kind of Denyal: And when all these meet, it is both JUSTICE and RIGHT.

[We will not deny or delay any man, &c.] These Words have been excellently expounded by lat­ter Acts of Parliament, that by no means Com­mon-Right or Common-Law should be distur­bed or delayed; no, though it be commanded under the Great Seal, or Privy Seal, Order, Writ, Letters, Messuge, or Commandment what­soever, either from the King, or any other; and that the Justices shall proceed, as if no such Writs, Letters, Order, Message, or other Commandment were come to them; All our [Page 32] Judges swear to this: for 'tis part of their Oaths, so that if any shall be found wresting the Law to serve a Courts turn, they are Perjured, as well as Vnjust; the common Laws of the Realm should by no means be delayed, for the Law is the surest Sanctuary that a man can take, and the strongest Fortress to protect the weakest of all; Lex est tutissima Cassis, the Law is a most safe Head-piece: And sub Clypeo legis nemo decipitur, no man is deceived whilst the Law is his Buckler; but the King may stay his own Suit; as a Capias pro fine, for he may respit his Fine, and the like.

All Protections that are not Legal, which ap­pear not in the Register, nor warranted by our Books, are expresly against this Branch, nulli differemus, we will not delay any man, as a pro­tection under the Great Seal granted to any man directly to the Sheriff, &c. and commanding them, that they shall not Arrest him, during a certain time, at any other man's Suit; which hath Words in it, Per praerogativam nostram quant nolumus esse Arguendam, by our Prerogative, which we will not have disputed; yet such Pro­tections have been argued by the Judges, accord­ing to their Oath and Duty, and adjudged to be void; as Mich. 11 H. 7. Rot. 124. a Prote­ction granted to Holmes a Vintner of London, his Factors, Servants and Deputies, &c. resolved to be against Law, Pas. 7 H. 8. Rot. 66. such a Protection disallowed, and the Sheriff amerced for not Executing the Writ, Mich. 13. and [Page 33] 14 Eliz. in Hitchcock Case, and many other of latter time: And there is a notable Record of antient time in 22 E. 1. Iohn de Marshalls case; Non pertinet ad vicecomitem de protectione Regis Iudicare, imo ad Curiam.

Iustice or right] We shall not sell, deny or de­lay Iustice and Right, neither the end, which is Iustice; nor the mean whereby we may attain to the end, and that is the Law: Right is taken here for Law, in the same sence that Justice often is so called, 1. Because it is the right Line, where­by Justice distributive, is guided and directed; and therefore all the Commissioners of Oyer and Terminer, of Goal-delivery, of the Peace, &c. have this clause, Facturi quod Iustitiam pertinet, secun­dum legem & consuetudinem Angliae, i. e. to do Justice and Right, according to the Rule of the Law & Custom of England; & that which is cal­led common Right in 2 E. 3. is called common Law in 14 E. 3. &c. and in this sense it is taken, where it is said, Ita quod stat Rectus in Curia, id est Legi in Curia.

2. The Law is called Rectum, because it disco­vereth that which is tort, crooked or wrong; for as Right signifieth Law, so tort, crooked or wrong sig­nifieth Injuries, and Injuria est contra Ius, Injury is against Right. Recta linea est index sui & obliqui, a right line is both declaratory of it self and the oblique. Hereby the crooked Cord of that which is called discretion appeareth to be unlawful, un­less you take it, as it ought to be, discretio est dis­cernere [Page 34] per Legem, quid sit Iustum, discretion is to discern by the Law what is just.

It is called Right, because it is the best Birth-right the Subject hath, for thereby his Goods, Lands, Wife & Children, his Body, Life, Honour & Estimation are protected from Injury & wrong▪ Major Hoereditas venit unicun (que) nostrum a Iure & Legibus, quam a Parentibus; A greater Inheritance descends to us from the Laws, than from our Progenitors.

Thus far the very words of that Oracle of our Law, the sage and learned Cook; which so fully and excellently explains this incomparable Law, that it will be superfluous to add any thing fur­ther thereunto.