The Triumphs of justice over unjust judges: exhibiting, I. The names and crimes of four and forty judges hang'd in one year in England, as murderers for their corrupt judgments. II. The case of the Lord Chief Justice Tresilian, hang'd at Tyburn, and all the rest of the judges of England (save one) banisht in K. Richard the 2d's times. III. The crimes of Empson and Dudley, executed in K. Henry the 8th's days. IV. The proceedings of the ship-money-judges in the reign of King Charles the First. V. Diverse other presidents [sic] both antient and modern. To which is added, VI. The judges oath, and some observations thereupon. : Humbly dedicated to the Lord Chief Justice Scroggs. : [One line of text in Latin] Approx. 103 KB of XML-encoded text transcribed from 32 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI : 2009-04. N30121 N30121 Shipton 40005 APY1141 40005 99028205

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Early American Imprints, 1639-1800 ; no. 40005. (Evans-TCP ; no. N30121) Transcribed from: (Readex Archive of Americana ; Early American Imprints, series I ; image set 40005) Images scanned from Readex microprint and microform: (Early American imprints. First series ; no. 40005) The Triumphs of justice over unjust judges: exhibiting, I. The names and crimes of four and forty judges hang'd in one year in England, as murderers for their corrupt judgments. II. The case of the Lord Chief Justice Tresilian, hang'd at Tyburn, and all the rest of the judges of England (save one) banisht in K. Richard the 2d's times. III. The crimes of Empson and Dudley, executed in K. Henry the 8th's days. IV. The proceedings of the ship-money-judges in the reign of King Charles the First. V. Diverse other presidents [sic] both antient and modern. To which is added, VI. The judges oath, and some observations thereupon. : Humbly dedicated to the Lord Chief Justice Scroggs. : [One line of text in Latin] Scroggs, William, Sir, 1623?-1683, dedicatee. [4], 27, [1] p. ; 20 cm. (4to) Re-printed [by S. Kneeland and T. Green?], [Boston?] : in the year 1732. Dedication to William Scroggs signed: Philo-Dicaios. Westminster-Hall, this 23 of Dec. 1680. Tentatively ascribed to the press of Kneeland and Green on the basis of the ornaments used. "Errata."--p. 27.

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eng Abuse of administrative power -- Great Britain. Judges -- Great Britain. Justice, Administration of -- Great Britain. Trials (Treason) -- Great Britain. 2008-02 Assigned for keying and markup 2008-02 Keyed and coded from Readex/Newsbank page images 2008-06 Sampled and proofread 2008-06 Text and markup reviewed and edited 2008-09 Batch review (QC) and XML conversion

THE TRIUMPHS OF JUSTICE OVER Unjuſt Judges: EXHIBITING,

I. The Names and Crimes of Four and Forty Judges Hang'd in one Year in England, as Murderers for their corrupt Judgments. II. The Caſe of the Lord Chief Juſtice Treſilian, Hang'd at Tyburn, and all the reſt of the Judges of England (ſave one) baniſht in K. Richard the 2d's Time. III. The Crimes of Empſon and Dudley, Executed in K. Henry the 8th's Days. IV. The Proceedings of the Ship-money-Judges in the Reign of King Charles the Firſt. V. Diverſe other Preſidents both Antient and Modern. To which is added, VI. The Judges OATH, and ſome Obſervations thereupon.

Humbly Dedicated to the Lord Chief Juſtice SCROGGS.

Diſcite Juſtitiam moniti, & non temnere Leges.

Re-printed in the Year 1732.

THE PREFACE.

THE Nature and End of all Civil Government is Salus Populi, and altho Civil Government in different Empires, Kingdoms, Republicks and Provinces, appear in different modes and ſhapes, yet the true end and deſign of all their Eſtabliſhments are one and the ſame, i. e. Salus Populi.

For which end under the Engliſh OEconomy Judges and Juries are appointed: To Hear, Try, and finally to do impartial Juſtice to all Perſons whatſoever: and may all Judges who ſhall fail in their Duty through Bribery or Deſign meet with a juſt Puniſhment, not inferior to what befel thoſe unhappy Wretches (once the happy Favourites of ſome of our greateſt Kings) who are Hung up in Terrorem (as by the following Sheets will appear) that others may hear and fear and do no more ſo wickedly, leſt an equal if not a worſe Puniſhment be Executed upon them.

It's very Terrible when LION-like Judges appear upon Engliſh Benches, who neglect the Law and act generally by the Power of their own Will.

The Conſtitution muſt certainly when it ſo happens (and ſuch Judges Male Adminiſtration paſs with Impunity) be in the utmoſt Danger; it's therefore thought nothing would be more acceptable to the Publick than The Triumphs of Juſtice over Unjuſt Judges; and as it is for the Information of all, ſo it is hop'd, it will be a Warning to all, eſpecially Civil Officers; for which purpoſe the diſmal Narrative of the deadly Cataſtrophy of ſo many Britiſh Judges is Reprinted.

TO Sir WILLIAM SCROGGS Kt. LORD CHIEF JUSTICE Of His Majeſty's Court of KINGS-BENCH AT WESTMINSTER.

I Know not to whom I could more properly Dedicate a Treatiſe of this Nature, than to Your LORDSHIP, who is at Preſent Lord Chief Juſtice of England, and have ſet ſuch remarkable Copies to inferior Magiſtrates. What is here offered, is neither Prophecy nor Plaiſter, Lampoon, nor Romance; but a clear Mirrour retreiv'd out of the Cloſet of wiſe Antiquity, In which future Adminiſtrators of publick Juſtice would do well to Look; For you know, My Lord, Common-Law runs much upon Preſidents; And if a Man happen to have none of the beſt Phyſiognimies, there is no reaſon why he ſhould ſtraight grow angry; and fling ſtones to break all the Looking-Glaſſes he meets with, only becauſe they repreſent the true Figure of the Object.

'Tis a Priviledge we Scribblers that write for Bread, hold by Preſcription, to put any great Body's name in the front of our Book. Princes have not been able to exempt themſelves or their Favourites from the Perſecution of Dedications, nor is there (I humbly conceive) any Rule made in Your Lordſhips Court to forbid them.

Suffer then, I beſeech Your Lordſhip this Addreſs to remain a Monument to Poſterity of the Sentimens this Age has of Your Lordſhips Conduct and Merits, and witneſs to all the World how much its Author, is

Your Lordſhips moſt Humble Servant Philo-Dicaios. Weſtminſter-Hall, this 23 of Dec. 1680.
THE Triumphs of Juſtice OVER Vnjuſt Iudges, &c.

UNDOUBTEDLY there may be, becauſe there has been too often in the World; ſuch a thing, ſuch a ſin, ſuch a miſchief, as Corruption of Judges, that is, when by means of Pecuniary, or other Bribes, or (which is all out as bad) Threatnings, Promiſes of Reward, Malice, Revenge, hopes of greater, or fears of being turned out of preſent Preferments, or any other ill motive; They that are appointed and Sworn to Adminiſter equal and impartial Right and Juſtice, are wrap'd aſide, or Bias'd to ſerve a Turn, or Wreck a private Grudge, or to free the Guilty, or condemn the Innocent; or to lean rather to the one ſide, than to the other; or wilfully to declare that to be Law, which they cannot but know is not ſo; or to adjudge puniſhments diſproportionate to the Crimes that appear before them, or any the like baſe illegal practiſes.

How odious this Vice is, to God and Man, as being equally deſtructive to Religion, and Humane Society; and how ſeverely it has been heretofore puniſhed, by both, may appear by The Enſuing Examples.

1. As to God, who is Capitalis Juſtitiarius Caeli & Terrae, the Grand nevererring Juſtitiary of all the World. His Sacred Word prohibits nothing more poſitively nor complain of any thing lowder, or with more repeated importunities. Thou ſhalt not reſt the judgment of the poor in his cauſe; Thou ſhalt take no gift, for a gift blindeth the eye of the wiſe, and perverteth the words of the Righteous, Exod. 23.6. and 8. ver. Thou ſhalt not reſt judgment; thou ſhalt not reſpect perſons, neither take a gift, &c. Deut. 16.19. Woe unto them that juſtifie the wicked for reward, and taketh away the righteouſneſs of the righteous from him, Iſa. 5.23. A wicked man taketh a gift out of the boſome ('tis done you ſee ſlyly, and in the dark) to pervert the ways of judgment, Prov. 17.23 Woe unto e who turn judgment into wormwood, and leave off righteouſneſs in the earth, Amos 5.7 The good man is periſhed out of the earth, and there is none upright amongſt men; They all lye in wait for blood; they hunt every man his brother as with a net, that they may do evil with both hands earneſtly. The Prince asketh, and the Judge gapeth for a reward; and the great man uttereth his miſchievous deſire, ſo they wrap it up: the beſt of them is as a briar, the moſt upright is ſharper than a thorn hedg, &c. Mic. 7.2, 3, & 4 ver. with many of the like Texts.

2. As corrupt Judges are thus obnoxious to the Curſe of God, ſo hath his Divine Providence not ſeldome Executed it upon them even in this world by the hands of men. Nor indeed is there any thing that can render Kings (Gods Vicegerents) more Glorious, or better eſtabliſh any ſtate, than to keep the Current of Juſtice clear and unfullied; and exemplarily to puniſh their Subordinate Miniſters, and eſpecially Judges that ſhall preſume to impoiſon that Sacred Fountain.

Several Heathen Princes are Renowned for this wholeſom ſeverity. 'Tis ſaid of Alexander Severus the Roman Emperor, that he had ſuch an averſion and abhorrence of unjuſt Judges, that at the very ſight of them he would vomit Choler, and was ready with his fingers to pluck out their eyes. Theatrum Hiſtoricum, f. 546.

The Mighty Monarch Cambyſes, King of Perſia, finding that one Siſamnes his Chief Juſtice (Proeſes our Author calls him in Latin) had receiv'd a Bribe, and for the ſame pronounced an unjuſt Sentence, forthwith cauſed him to be Executed, and curiouſly flead, and with his skin cover'd the Common Seat of Juſtice, and Conſtituted Otanes (the ſaid Siſamnes's own Son) Judge in his Room; That ſo beholding daily thoſe Reliques of his juſtly-puniſht Father; It might ſerve as a Memento to him to act more uprightly. Chronicon Carionis. l. 2. p. 19.

But not to ſearch ſo far off, our own Nation affords us (perhaps) the moſt notable and numerous Examples of Royal Juſtice in this kind of any in the world. For we find it Recorded in that Antient Law-Book, Entituled, The Mirrour of Juſtices (moſt of which is ſaid to be Compiled before the Conqueſt, and Augmented by the Learned Andrew Horn in the Reign of K. Edward the 1ſt. and which is often Cited by the Famous Lord Coke, and to this day continues in good Repute amongſt Lawyers) That King Alfred, a Renowned Saxon Prince, who Governed this Realm about the Year of our Lord 900. did in one years ſpace bring to Condign puniſhment, no fewer than four and forty of his Juſtices, (ſo the Law Terms thoſe we call Judges; and this was long before, either Juſtices of the Peace Eſtabliſht, or the Courts fixed at Weſtminſter: But Juſtice was in thoſe days Adminiſtred in the Country, in Neighbouring Courts, which yet (as appears by the nature of the offences alledged againſt them) had jus vitae & necis, power of life and death, and ſo may properly be called Judges) whoſe Names and particular Crimes here follow in the words of that worthy Author, p. 296, of the French, and p. 239 of the Engliſh Edition.

It is an abuſe that Juſtices and their Officers who kill People by falſe judgment, be not deſtroyed, which King Alfred cauſed to be done, who cauſed Forty four Juſtices in one year, to be hanged as Murderers for their falſe judgments.

1. He hanged Darling becauſe he judged Sidulf to death, for the retreat of Edulf his Son, who afterwards acquitted him of the Fact.

2. He hanged Segnar, who judged Ulf to death after ſufficient acquittal.

3. He hanged Cadwine, becauſe that he judged Hachwy to death without the Conſent of all the Jurors; for whereas he had put himſelf upon a jury of Twelve-men; and becauſe that three would have ſaved him againſt the Nine: Cadwine removed the three and put others upon the jury, upon whom Hachwy put not himſelf.

4. He hanged Cole, becauſe he judged Ive to death when he was a Mad-man.

5. He hanged Malme, becauſe he judged Prat to death upon a falſe ſuggeſtion that he committed the felony.

6. He hanged Athulf, becauſe he cauſed Copping to be hang'd before the Age of one and twenty years. [It was againſt Law then, but now nequitia ſupplet Aetatem.]

7. He hanged Markes, becauſe he judged During to death by twelve men that were not ſworn.

8. He hanged Oſtline, becauſe he judged Seaman to death by a falſe Warrant, grounded upon falſe ſuggeſtion, which ſuppoſed Seaman to be a Perſon in the warrant, which he was not.

9. He hanged Billing, becauſe he judged Leſton to death by fraud: In this manner, he ſaid to the People, ſit all ye here but he who killed the man, and becauſe that Leſton did not ſit with the other, he commanded him to be hanged, and ſaid that he did aſſiſt, where he knew he did not aſſiſt to kill the Party.

10. He hanged Seaſoul, becauſe he judged Ording to death, as not anſwering.

11. He hanged Thurſton, becauſe he judged Thurgner to death by a Verdict of Inqueſt, taken ex officio, without Iſſue joyned.

12. He hanged Athelſton, becauſe he judged Herbert to death for an offence not mortal.

13 He hanged Rambold, becauſe he judged Leſchild in a Caſe not notorious, without Appeal, and without Indictment.

14 He hanged Rolf, becauſe he judged Dunſton to dye for an eſcape out of priſon.

15. He hanged Frebern, becauſe he judged Harpin to dye, whereas the Jury were in doubt of their verdict, for in doubtful caſes one ought rather to ſave than condemn.

16. He hanged Seabright, who judged Athebrus to death, becauſe he had diſcharg'd one that had given a falſe judgment in a Caſe Capital.

17. He hanged Hale, becauſe he ſaved Triſtrain the Sheriff from death, who took to the Kings uſe from another goods againſt his will, for as much as any ſuch taking from another againſt his will, and Robbery hath no difference.

18. He hanged Arnold, becauſe he ſaved Bailifs, who robbed the people by colour of Diſtreſſes; ſome by ſelling Diſtreſſes, ſuch, and others by extortion of Fines; becauſe between ſuch tortious Acts & Robbery there was no difference.

19. He hanged Erkinwald, becauſe he hanged Frankling, for nought elſe, but becauſe he taught to him who vanquiſhed him by Battle-mortal to ſay the word Cravant.

20. He hanged Bermond, becauſe he cauſed Garbot to be beheaded by his judgment in England, for that, for which he was outlaw'd in Ireland.

21. He hanged Alkman, becauſe he ſaved Cateman by colour of Diſſeiſin, who was Attaited of Burglary.

22. He hanged Saxmond, becauſe he hanged Barold in England, where the King's Writ runneth for a fact which he did in the ſame Land, where the Kings Writ did not run.

23. He hanged Alflet, becauſe he judged a Clerk to death over whom he had no Cognizance.

24. He hanged Piron, becauſe he judged Huntiny to death; becauſe he gave judgment in Appeal before the forty days pendant; the Appeal by a Writ of falſe judgment before the King.

25. He hanged Delani, becauſe he cauſed Eldons to be hanged, who kill'd a man by misfortune.

26. He hanged Oſwin, becauſe he judged Fulcher to death out of Court.

27. He hanged Mucdin, becauſe he hanged Helgrave by warrant of Indictment not ſpecial.

28. He hanged Horn, becauſe he hanged Simin at days forbidden.

29. He hanged Wolmer, becauſe he judged Grant to death by colour of a Larceny, of a thing which he had received by Title of Bailment.

30 He hanged Therberne becauſe he Judged Oſgot to death for a Fact whereof he was Acquitted before againſt the ſame Plantiff; which Acquaintance he tendred to averr by Oath, and becauſe he would not aver it by Record, Therberne would not allow of the Acquittal which he tendred him.

31. He hanged Wolſton becauſe he adjudged Howbert to death at the ſuit of the King, for a fact which Howbert confeſt, and of which the King gave him his Pardon, but he had no Charter thereof; nevertheleſs he vouched the King to Warrant it, and further tendred to averr it by Enrollment of the Chancery.

32. He hanged Oskitell becauſe he Judged Cutlinge to death by the Record of the Coroner, where by Replication allowable, the Plea did not hold; And the Caſe was ſuch, Cutling was taken and Tortured ſo much, as he confeſſed he had Mortally offended, only to be quitted of the pain; and Oskitell adjudged him to death upon ſuch his Confeſſion which he had made to the Coroner, without trial of the truth of the Torture or the Fact. And further the ſaid King cauſed the Coroners and Officers Acceſſories to be apprehended who hanged the people, and all thoſe that might have hindred the falſe Judgment, and did not hinder the ſame in all caſes: For he hanged all the Judges who had falſely ſaved any man guilty of Death; or hath falſely hanged any man againſt Law, or any reaſonable Exception.

He hanged the Suitors of Calevot, becauſe they had adjudged a man to death in a caſe not notorious, although he were guilty thereof; for no man can Judge within the Realm but the King, or his Commiſſaries, except thoſe Lords in whoſe Lordſhips the Kings Writ doth not run.

He hanged the Suitors of Dorceſter, becauſe they Judged a man to death by Jurors in their Liberty for a Felony done out of it, and whereof they had not the Conuſance by reaſon of forraignty.

He hanged the Suitors of Cirenceſter, becauſe they kept a man ſo long in Priſon, that he dyed in Priſon, who would have acquitted himſelf by Forraigners that he offended not Feloniouſly.

['Tis ſuppoſed theſe Suitors of each place were Four in Number, which compleats the number of Forty Four Hanged in all.]

In his time alſo the Suitors of Doncaſter loſt their Juriſdiction, beſides other Puniſhments, becauſe they held Pleas forbidden by the Cuſtoms of the Realm to Ordinary Judges and Suitors to hold.

In this time Colgrin loſt his Franchiſe of Enfangthief, becauſe he would not ſend a Thief to the common Goal of the County, who was taken within his Liberty, and not Bailable.

In this time Buttolph loſt his view of Frank-pledges becauſe he charged the Jurors with other Articles than thoſe which belonged to the View, and Amerced people in perſonal Actions where one was not to be amerced by a pecuniary Puniſhment: And accordingly he cauſed puniſhments of Death to Criminal Judges for wrongful mortal Judgments, and ſo he did proportionably for wrongful Judgments of a leſſer nature: As Impriſonment for wrongful Impriſonments, and like for like with the other Puniſhments; for he delivered Thelweld to Priſon, becauſe he Judged men to Priſon for Offences where they ought not to be Impriſoned.

He Judged Lithing to Priſon becauſe he impriſoned Herbote for the Offence of his Wife.

He Judged Rutwood to Priſon becauſe he Impriſoned Old for the King's Debt.

[Note, In thoſe days people were not to be Impriſoned for Debt, but only their Goods diſtrain'd.]

On the other ſide, he cut off the hand of Haulf, becauſe he ſaved Armorks Hand, who was Attainted before him, that he had Feloniouſly wounded Richbold.

He Judged Edulfe to be wounded, becauſe he Judged not Arnold to be wounded, who had Feloniouſly wounded Aldens.

In leſſer Judgments he did not meddle with the Judgments; but Diſinherited the Juſtices, and Removed them according to the Points of thoſe Statutes, where he could underſtand that they had Tranſgreſſed their Juriſdiction, or the Bounds of their Delegacy or Commiſſion; or had concealed Fines or Amerciaments or ought that belonged to the King, or had Releaſed or Increaſed any Puniſhment contrary to Law, or procured Pleadings without Warrant, &c.

Thus far Horus Mirrour

Now that this Alfred was one of the wiſeſt and moſt Renowned Kings that ever this Land was happily Governed by, appears, as well by the Eulogies given him by the Ancients, as thoſe Encomiaſtick Verſes Dedicated to his Memory, by a preſent Ingenious Courtier, Sir Winſton Churchill Kt. in his Dir Britannici, Fol. 140.

Who would not follow him into the Field, Who cannot chooſe but Conquer tho' he yield? Whoſe Sword cut deep, yet was his Wit more keen, Some Fence 'gainſt that; But this did wound unſeen. To thee is due (Great Elfrid!) double praiſe; To thee we bring the Laurel and the Bayes. Maſter of Arts and Arms, Apollo ſo Sometimes did uſe his Harp, ſometimes his Bow, And from the other Gods got this Renown To Reconcile the Gauntlet to the Gown. But who did e're with the ſame Sword like Thee, Execute Juſtice, and the Enemy? Keep up at once the Law of Arms and Peace, And from the Camp Iſſue out Writs of Eaſe.

The next Engliſh Prince of Renown before the Norman Conqueſt, was King Edgar, about the year 960. Amongſt whoſe Noble Acts 'tis recorded as none of the leaſt memorable, that in his Circuits and Progreſſes through the Country, he would take Account of the Demeanour of his Lords, and eſpecially of his Judges, whom he ſeverely Puniſhed, if he found them Delinquents: Bakers Chron. Fol. 11.

Nor have the beſt and wiſeſt of our Princes ſince the Conqueſt, been leſs ready to give up Ill Judges to juſt Puniſhment, nor our Engliſh Parliaments wanting to bring them to it.

In the year 1290, being (faith Walſingham, p. 4) the 17th year of Edw. 1. Juſtitiarios ſere omnes de falfitate deprehenſos a ſuo Officio depoſuit ipſos juxta morita puniens gravi Mulcta. He finding almoſt all his Judges guilty of Corruption, put them out of their places, and Puniſht them according to their Demerits with heavy Fines. Which the Lord Cook in the Second part of his Inſtitutes, Fol. 508. likewiſe takes notice of, and tells us, That this was done by a Parliament held after the Feaſt of St. Hillary, and only two Judges ſcap'd ſcot-free. But how ſevere the Fines of the other Delinquents were, appears in Bakers Chronicle, fol. 100. Sir Ralph de •• ngham (ſays he) Chief Juſtice of the Kings-Bench, for Corruption was Fined 7000 Marks: Sir John Loveto one of the Juſtices of the Common Pleas 3000 Marks; Sir William Brompton 6000 Marks; Sir Solomon Rocheſter 4000 Marks; Sir Richard Boyland 4000 Marks; Sir Walter H pton 2000 Marks; Sir William Saham in 3000 Marks; Robert Lithbury Maſter of the Rolls in 1000 Marks; Roger Leiceſter in 1000 Marks; Hugh Bray Eſch tor and Judge for the Jews, 1000 Marks; But Sir Adam Stratton Chief Baron of the Exchequer (who it ſeems had been a notable Bribe-fingerer) four and thirty Thouſand Marks, [A prodigious Sum almoſt 400 years ago!] And Sir Thomas Wayland Chief Juſtice of the Common-Pleas being found the greateſt Offender of all, was Attainted of Felony for taking of Bribes, and his Lands and Goods Forfeited: as appears in the Pleas of Parliament, 18. Edw. 1. And he was alſo Baniſht the Kingdom, as unworthy to live in that State againſt which he had ſo much Offended.

Sir William Thorp Chief Juſtice of the Kings-Bench in K. Edw, the Third's time, having of five ſeveral Perſons received five ſeveral Bribes, which in all amounted to 100 l. was for this alone adjudged to be Hang'd, and all his Goods and Lands Forfeited.

The reaſon of the Judgment is entred in the Roll in theſe words — Quia praedictus Willielmus Thorpe qui Sacramentum Domini Regis erga populum ſuum habuit ad Cuſtodiendum, fregit malitioſe, falſe & Rebelliter quantum in ipſo fuit. Becauſe that as much as in him lay, he had broken the Kings Oath made to the People, which the King had Intruſted him withal.

And ſo much did the then Collective Wiſdom of the Nation reſpect Judges herein, that 'tis expreſly entred, that this Judgment ſhould not be drawn into example againſt any other Officers who ſhould break their Oaths, but only againſt thoſe, Qui predictum Sacramentum ſecerunt et fregerunt, et habent Leges Angliae ad Cuſtodiendum. That is, only to the Judges that violate their Oaths, having the Laws of England Entruſted unto them.

This Judgment was given 24. Edw. 3d. The next year in the Parliament 25 Edw. 3. Numero 10. it was debated in Parliament, Whether this Judgment was Legal, and Nullo Contradicente, unanimouſly it was declared to be juſt and according to the Law, and that the ſame Judgment may be given in time to come upon the like occaſion. Which Caſe, I humbly conceive, reſolves the Caſe in Law Point Blank thus: That it is death for any Judge wittingly to break his Oath in any part of it. This Oath of Thorp is entred in the Roll, and is the ſame verbatim, with the Judges Oath in 18 Edw. 3. The ſame too (as I humbly conceive) which our Judges now a days take, and is herein afterwards punctually recited.

The Oaths of our Judges of England, as they bind them to the due Adminiſtration of Juſtice to the Subject, according to the Laws, (which are every Free-mans Birth-Right) ſo alſo, as they be of the Kings Council, they are by ſuch their Oaths oblig'd, lawfully to counſel him, that is, whenever their opinions are demanded, they are ſworn and bound to deliver them according to the Law. — Let us ſee how our Anceſtors reſented theſe matters.

In a Parliament held in the 11th year of Richard the 2. there was Judgment of High-Treaſon given againſt 18 ſeveral Perſons, and all, ſave one of them, of Eminent Rank; Three Privy Counſellors, viz The Arch Biſhop of York, The Duke of Ireland, and Earl of Suffolk, the Biſhop of Exeter, the Kings Confeſſor, Five Knights, of whom ſome had been Servants to Edw. the 3. and all, but one, Servants to the then King, and ſome of them of Noble Deſcent; but that which I more particularly obſerve, there were amongſt them Six Judges, and Locton the Kings Serjeant at Law Blake of the Kings Council at Law, and Usk the under Sheriff of Middleſex.

Of theſe 18, 8 were Executed, that is, Sir Robert Treſilian, the Lord Chief Juſtice was drawn from the Tower, through the midſt of London, to Tyburn, and there Hanged; ſo likewiſe were U k and Blake, and Sir John Salisbury; but the other four Knights had the Favour to be Beheaded.

Three, that is, the Archbiſhop of York, the Duke of Ireland, and the Earl of Suffolk, died miſerable Fugitives in foreign Parts.

The other ſeven (whereof five were Judges) with much ado got a Pardon as to Life, but were baniſhed, and their Lands and Goods all forfeited; and it was made Felony for any to procure their Recalling home, and themſelves forthwith to be executed as Traytors, if at any time they ſhould preſume to return.

And of theſe eighteen Perſons, all ſave three were impeached by the Commons.

The Offences which procured theſe Exemplary Puniſhments, were briefly theſe:

King Richard the II. being an unthinking diſſolute Prince, by the ill counſel of ſome near his Perſon, there had during his minority happened divers miſcarriages in the Government: To redreſs which, in a Parliament holden in the tenth year of his Reign, and the twentieth of his Age, a Commiſſion was awarded to Twelve Peers, and others of greateſt Wiſdom and Ability, impowering them to inſpect the paſt management of the Houſhold, the Revenue, the Courts of Juſtice, and in a word, all things that did concern the Good of the Realm; with full power finally to determine, and put all things in execution, ſo as might moſt tend to the Honour of the King, Relief of the People, and Safety of the Land; which Commiſſion was to endure only one year.

Now come five of the Perſons above named, viz the Arch-biſhop, the Duke, the Earl of Suffolk, the Chief Juſtice, and Brembre, who ſeeing themſelves like to be called to Account for their pernicious Counſels and Irregularities, and to be brought to deſerved ſhame and puniſhment; to avoid the ſame, and continue their Villanies for the future, they inſinuated to the King, That this Commiſſion intrenched upon the Royal Power, and was derogatory to the Crown, that the procu ers thereof had extorted His Royal Aſſent thereunto in Parliament; and that this was Treaſon for ſo the Chief Juſtice and Blake the Kings Council, who was adviſed withal in the Writ, declared it to be; whereupon Blake was commanded to prepare an Indictment of Treaſon againſt all the ſaid Commiſſioners, and againſt ſuch others as had been moſt active in procuring that Authority: Accordingly he draws the Indictment which ſtands entred in the Roll, and is to this effect, That the ſaid Commiſſioners, &c. had Traiterouſly conſpired among themſelves to make this Commiſſion by Authority of Parliament againſt the Royalty of the King, to his diſheriſon, and in derogation of the Crown, and that they forced the Kings Conſent, and confederated themſelves to maintain one another in ſo doing.

It was deſigned that they ſhould be tryed upon this Indictment in Middleſex or London, and therefore (ſome of the parties to be proſecuted not being Peers) Usk the Under-Sheriff of Middleſex was acquainted with the buſineſs, (who was to return a Pack'd Jury (you ſee that's a very old Game) that might be ſure to do the buſineſs, which he performing accordingly, was therefore hang'd.

But further, the five grand Favourites, that the King might the more confide in their Counſels, (for ſo are the words of the Record) and that under colour of Law, they might cover their malice from the King and the Kingdom, before the Trials were to be brought on, adviſe the King to demand the Opinion of ſome of the Judges, that is, of the two Chief Juſtices and Chief Baron, and the Judges of the Common Pleas, ſix in all in number, and of Locton the Kings Serjeant; Blake, of the Kings Council at Law, was commanded to draw up thoſe Queſtions, who did it accordingly, and for drawing the ſame, and the before-mentioned Indictment, he was himſelf Drawn and Hanged.

The Queſtions being prepared in Writing, the Judges were ſent for to Nottingham Caſtle, where in the Kings own Preſence, they were commanded upon their Allegiance to deliver their Opinions, 1. Whether the Commiſſion was derogatory to the Rights of the Crown? They anſwered, It was. 2. Whether the perſwading and urging the King to conſent thereunto in Parliament, was Treaſon? They anſwered, That it was.

Here were other Queſtions ask'd, but theſe were the Main, and thoſe for which they were condemned, as appears by the Replication of the Commons to the Judges Anſwer, and by the Words of the Judgment — That they the ſaid Judges knew that this Commiſſion was awarded in Parliament, &c that it was for the Publick Good; That they knew of the Traiterous Intent to deſtroy the Procurers of this Commiſſion; That they knew the Law, and that it was not Treaſon, and had delivered ſuch Opinions thereby, under colour of Law, to cover their Treaſonable Intent, and therefore Judgment of High Treaſon was given againſt them, and againſt Locton the Kings Serjeant, who had Subſcribed theſe Falſe Opinions with the Judges. And though there be other Articles againſt the Reſt, yet this alone is adjudged Treaſon, in the ſeveral Judgments againſt every one of the Eighteen: And 'tis obſervable, That in all theſe Judgments, they are adjudged Traitors as well againſt the Perſon of the King, as againſt the Common-wealth

And it is there declared upon great Advice taken, That in Treaſons which concern the King and Kingdom, they are not bound to proceed according to the Rules of the Common Law, but according to the Courſe of Parliaments, ſo as may be for the Common Good. Nor were theſe Judgments huddled up in haſte, but given upon long and mature Deliberation, the Work of a Whole Parliament. And it is declared in the Roll, That they ſpent long time, and took great pains in examining the Evidence, the better thereby to ſatisfy their own Conſciences and the World. Their Proceedings againſt the five Plotters were begun the 14 of Novemb. and the Judgments were not given till the 15 of Feb. following, which is a Quarter of a Year.

'Tis alſo to be obſerved, That ſeveral of theſe Judges were very unwilling to give their Corrupt Opinions, but were menaced and violently drawn thereunto by the Duke of Ireland and others. And at their Trials, they ſeverally Alledged, That in part Violence had been offered to their Perſons, becauſe they had deferred the delivery of their Opinions. But as Fear or Cowardice is no Plea for delivering up of the Forts or Bulwarks of the Kingdom, ſo neither is it for baſely betraying our Rights and Liberties. Theſe Allegations of being threatned from their Duty, could not excuſe them from the Rope: but how much more then do they deſerve it who ſhall preſume to do as bad things or worſe, without any Menaces at all, but wilfully and preſumptuouſly, purely out of their own baſe inclinations?

But Treſilian was not the only Judge which our Engliſh Hiſtory, even ſince the Conqueſt, mentions to have been executed for irregular Practices: For in the Reign of King Henry the Seventh, a Wiſe but Avaritious Prince, there were two Gentlemen of the Long Robe, that for private Intereſt, and to ſerve the Kings preſent Turn, were ready to diſpenſe with their Oaths, and the known Fundamental Laws. But as they liv'd hated during his time, ſo they died unlamented under his Succeſſor, being given up a neceſſary Sacrifice to Publick Juſtice.

Their Names were Sir Richard Empſon Knight, and Edmund Dudley, both (ſaith Sir Richard Baker, fol. 247) Lawyers, and both of them Barons of the Exchequer, and Juſtices of the Peace throughout England: Dudley of a good Family, but Empſon the Son of a Sieve-maker: So true is that Remark of the Poet; Mendico aſperius nihil eſt cum ſurgit ad Altum.

There is no Perſon in the World more Haughty, or an Apter Tool for Oppreſſion, than a Beggars Bratt or ſome baſe Mechanick, Butcherly Off-ſpring, when undeſervedly fluſh'd with Preferment.

The King made odd Uſe of theſe Two Inſtruments. They turn'd (ſays Baker) Law into Rapine. And moſt certain it is, that many ill Things they did: But the better to colour their vile Practices, a Statute was Provided, to Juſtify their Invaſions on the Liberties and Properties of their Fellow Subjects.

We will give you an Account of this Matter, in the very Words of that Great Oracle of our Law, Sir Edward Cook. But firſt, hear how Sir Richard Baker, in his Chronocle, fol. 24 . repreſents them:

Their Manner was (ſaith he) to cauſe divers Subjects to be Indicted of Crimes, and then preſently to Commit them, and not Produce them to their Anſwer, but ſuffer them to Languiſh long in Priſon; and by ſundry Artificial Devices and Terror, extort from them great Fines, which they termed Compoſitions and Mitigations Neither did they (towards the End) obſerve ſo much as the Half Face of Juſtice, in Proceeding by Indictment; but ſent forth their Precepts to Attach Men, and Convent them before Themſelves, and ſome Others, at their private Houſes; and there ſhuffle up a Summary Proceeding by Examination, WITHOUT TRYAL BY JURY; aſſuming to themſelves to deal both in Pleas of the Crown, and Controverſies Civil. Then did they alſo uſe to Enthral, and Charge the Subjects Land with Tenures in Capite, by finding Falſe Offices, refuſing upon divers Pretexts & Delays, to admit Men to Traverſe thoſe Falſe Offices. Nay, contrary to all Law and Colour, they maintain'd, That the King ought to have the Half of Mens Lands and Rents, during the Space of full Two Years, for a Pain, in caſe of Outlawry. They would likewiſe Ruffle with Jurors, and enforce them to Find, as they would direct: And if they did not, then Convent, Impriſon, and Fine them. Theſe, and many other Courſes they had, of Preying upon the People, and had ever a Rabble of Promoters, and Leading Jurors at their Command, ſo as they could have any Thing found, either for Fact, or Valuation.

Thus far the Hiſtorian. Now, take the Relation of the Reverend Judge COOK, in his ever-valuable Works, Commenting in the Second Part of his Inſtitutes on that GOLDEN Nine and Twentieth Chapter of MAGNA CHARTA; which being of Ineſtimable Value, I take it for granted, no True Engliſh-Man will any more grudge the Reading, than I do the Recital of it; and I wiſh it might every Market Day, be repeated with a Speaking Trumpet, in every Town & Corporation of this Kingdom. The Words run thus: Nullus Liber Homo, &c.

No Free Man ſhall be Taken, or Impriſoned, or Diſſeiſed of his Free-Tenement or Liberties, or Free-Cuſtoms; or be Out-law'd, or Exil'd, or in any manner Deſtroy'd: Nor will we paſs upon him, nor ſend any (to paſs) upon him: But by the Lawful Judgment of his PEERS, or by the Law of the Land. We will Sell to none, we will Deny to none, nor to any delay Juſtice or Right.

Diſcourſing, I ſay, upon this moſt Comprehenſive Text, the Corner-Stone of all our Engliſh Freedoms, my Lord Cook, 2 Inſtit. fol. 51. thus expreſſes himſelf:

Againſt this Antient and Fundamental Law, and in the Face thereof, I find an Act of Parliament made 11 H 7. Cap. 3. That as well Juſtices of Aſſize, as Juſtices of the Peace (without any Finding, or Preſentment by the Verdict of Twelve Men) upon a bare Information for the King, before them made, ſhould have full Power and Authority, by their Diſcretions, to Hear and Determine all Offences, &c.

And Fourth Part, Inſtit. fol. 39. he gives a further Account of, and Recites this Act thus:

There was an Act of Parliament made in the 11 H. 7. which had a Fair, Flattering Preamble, pretending to avoid divers Miſchiefs, which were, 1. The High Diſpleaſure of Almighty God. 2. The great Let of the Common-Law. And, 3. The great Let of the Wealth of this Land. And the Purview of that Act tended in the Execution contrary, Ex Diametro, viz. to the Diſpleaſure of Almighty God, The great Let, nay, the utter Subverſion of the Common-Law, and, The great Let of the Wealth of this Land; Which Act followeth in theſe Words;

THE King our Sovereign Lord, calling to his Remembrance, That many good Statutes, and Ordinances be made for the Puniſhment of Riots, and unlawful Aſſemblies, Reteinders in giving, and receiving of Liveries, Signs, and Tokens unlawfully, Extortions, Maintenances, Imbracery, Exceſſive taking of Wages, contrary to the Statute of Labourers and Artificers, the Uſe unlawful Games, Inordinate Apparel, &c. to the diſpleaſure of Almighty God, &c. notwithſtanding that generally, by the Juſtices of the Peace, in every Shire within this Realm, in the open Seſſions, it is given in Charge to inquire of many Offences committed, &c. and divers Inqueſts thereupon ſtraightly Sworn, and Charged before the ſaid Juſtices to inquire of the Premiſes, and therein to preſent the Troth, which they letted to be found by Imbracery, Maintenance, Corruption, and Favour; by occaſion whereof, the ſaid Statutes be not, nor cannot be put in due Execution: For Reformation whereof, forſomuch that before this time the ſaid Offences, Extortions, Contempts, &c. might not, nor as yet may be conveniently Puniſhed by the due Order of Law, except it were firſt found, and preſented by the Verdict of Twelve Men thereto duly Sworn, who for the Cauſes before Recited, will not find, nor preſent the Truth; wherefore be it by the Advice, and Aſſent of the Lords Spiritual and Temporal, and the Commons in this preſent Parliament Aſſembled, and by Authority of the ſame Enacted, Ordained, and Eſtabliſhed; That from henceforth, as well the Juſtices of Aſſize, as the Juſtices of the Peace, in every County of the ſaid Realm, upon Information [Note, it was to be without any Preſentment, or Indictment found by any Grand or Petty Jury] for the King, &c. ſhall have full Power, and Authority by their Diſcretion to hear, and determine all Offences, &c.

Here you ſee Matters were left to be determined by Judges & Juſtices WITHOUT JURIES, in a Summary, Chancery-Method, only according forſooth! to their Diſcretion: Yet ſtill there was a Proviſo, THat no ſuch Information ſhould extend to Treaſon, Murder or Felony; nor to any other Offence, for which any Perſon ſhould loſe Life or Member: Nor to loſe by, or upon the ſame Information, any Lands, Tenements, Goods, or Chattels, to the Party making the ſame Information.

[Which deſerves Particular Notice:] Yet obſerve, how the ſame Reverend Lord COOK, in the Place before cited, deſcants on this Act.

By Pretext (ſaith he) of this Law, Empſon and Dudley did commit upon the Subject unſufferable Preſſures and Oppreſſions; and therefore, this Statute was Juſtly, ſoon after the Deceaſe of Henry the Seventh, Repeal'd by an Act of Parliament, 1 H. 8. Cap 8. A good Caveat to Parliaments, to leave all Cauſes to be meaſured by that Golden, and Strait-Mete-Wand of the Law, and not to the incertain and crooked Cord of Diſcretion.

It is not almoſt Credible, (continues the ſame Judicious Author) to fore ſee, when any Maxim, or Fundamental-Law of this Realm [He means, as to this particular Caſe, Trials per Pais, that is, by Juries] is Altered, what dangerous Inconveniences do follow. Which moſt expreſly appears by this MOST UUJUST AND STRANGE ACT: For hereby, not only Empſon and Dudley themſelves; but ſuch Juſtices of Peace, Corrupt Men as they cauſed to be Authorized, Committed moſt grievous and heavy Oppreſſions and Exactions, Grinding of the Faces of poor Subjects by Penal Laws, be they never ſo Obſolete, or unfit for the Time, Suppoſe, for a Parallel in our Times, putting the Statutes againſt Popiſh Recuſants, in Execution againſt Proteſtant Diſſenters, at a Juncture when Popery was juſt ready to over-run us all] by Information only, without any Preſentment or Tryal by Jury, being THE ANTIENT BIRTH-RIGHT OF THE SUBJECT: But to Hear and Determine the ſame, by their Diſcretion. Theſe, and other like Oppreſſions and Exactions by, or by Means of Empſon and Dudley, and their Inſtruments, brought Infinite Treaſures to the King's Coffers; whereof the King, in the End, with great Grief and Compunction, Repented.

This Statute of 11 H. 7 we have Recited, and ſhewed the Inconveniencies thereof; to the end, that the like ſhould never hereafter be attempted in any Court of Parliament: And that others might avoid the Fearful End of theſe Two Time-Servers, Empſon and Dudley.

Thus far that Oracle of our Engliſh Laws. Wherein be pleaſed to obſerve:

Firſt, That he ſticks not to call even an Act of Parliament, moſt UNJUST AND ST •• NGE: And in the Second Part of his Inſtitutes, fol. 51. UNJUST AND INJURIOUS; becauſe it Altered a Fundamental Law of the Realm, viz. Denied Tryal by Juries, a moſt Eſſential Part of ENGLISH FREEDOM, and never to be parted with.

Secondly, Obſerve what became of theſe Two Wicked Men, though they had ſuch a Colour of Law to bear them out: They were, in the Beginning of the Reign of King Henry the Eighth, (firſt) Indicted for other baſe Practiſes, in Finding of Falſe Offices for the King, to the Damage and Diſheriſon of His Subjects: Which Indictment ran as follows, (ſee Cook's Inſtit. Part the Fourth, fol 198.)

Juratores praeſentant quod Richardus Empſon nuper de London Miles, &c.

In Engliſh thus:

THe Jurors preſent, That Richard Empſon, late of London, Knight, late Counſellor of the moſt Excellent Prince, Henry the Seventh, late King of England, on the Tenth Day of May, in the Twentieth Year of the ſaid late King, and divers Times before and after, at London, &c not having GOD before his Eyes; but as the Son of the Devil, imagining the Honour, Dignity, and Proſperity of the ſaid late King; and the Proſperity of His Kingdom of England, not at all to Value or Regard: But to the end, that he might obtain to be a more Singular Favourite of the ſaid late King, whereby he Himſelf might be made a Noble or Great Man, & Govern the whole Kingdom of England at his Pleaſure; Falſly, Deceitfully, and Treaſonably Subverting the Law of England, did (amongſt other Things) the Day & Year aforeſaid, at London, in the Pariſh & Ward aforeſaid, procure, and cauſe to be found divers falſe Inquiſitions, and Offices of Intruſions, and Alienations of divers Leige Subject's Mannors, Lands, & Tenements; that they h ld the Mannors, Lands, & Tenements in thoſe Inquiſitions ſpecified of our Lord the King, in Capite or otherwiſe; whenin Truth it was not ſo. And afterwards, when the ſaid Leig Subjects of our Lord, the late King, would have tendered and alledged Traverſes to the ſaid Inquiſitions, in the Court of Him, the ſaid late King, according to the Law of England; they could not be admitted to thoſe Traverſes: But he, the ſaid Richard Empſon, debarr'd and delay'd them from the ſame, 'till they had agreed with him, to pay divers Great and Inſupportable Fines and Redemptions; as well for the Profit of the ſaid late King, as for the proper private Advantages of him, the ſaid Richard; to the great Impoveriſhment of the ſaid Subjects. And that the ſaid Richard, the Day and Year aforeſaid, in the Pariſh & Ward aforeſaid, and ſeveral Times before and after, divers Leige-Subjects of the ſaid late King, holding of our ſaid Lord the King, divers Mannors, Lands, and Tenements, by Knight's Service, and themſelves being (by the Death of their Anceſtors) under Age, and ſo in the Wardſhip of the King, by Reaſon of their Tenure, when they came to lawful Age, and ought to have had due Livery of their Mannors, Lands, and Tenements, according to the Cuſtom and Law of England, and would have Proſecuted the ſame according to the Courſe of Chancery; did refuſe them ſo to do, and totally deny and exclude; until they had made with him, the ſaid Richard, divers great Fines and Redemptions, more than they could bear; as well for the Gain of the ſaid late King, as for the private Benefit of him, the ſaid Richard: Whereby many of the ſaid late King's People were by ſuch Grievances, and Unjuſt Extortions many ways vexed: Inſomuch, that the Subjects of the ſaid late King, did manifoldly murmur, and bear ill Will againſt the ſaid late King; to the great Peril of Him, the ſaid late King, His Kingdom of England, and the Subverſion of the Laws and Cuſtoms of this Realm.

'Tis true, (ſaith my Lord Cook, Fourth Part of his Inſtitutes, fol. 41.) in this Indictment [Which, Mutatis mutandis, we are to ſuppoſe, was alike againſt Dudley] the Word Preditorie, [That is to ſay, Treaſonably] was uſed but for Aggravation, and as a Preparative (for a Proſecution) to Greater Offences. For they were not to eſcape with a Charge of Miſdemeanor only: But in the ſame Year, they were both Indicted of High-Treaſon, both by the Common-Law, and Act of Parliament. And in the Second Year of King Henry the Eighth, they both Loſt their Heads.

Thus, that Profound Judge ſpeaks of them, who 4. Inſtit. fol. 41. concludes the Story of theſe Time-ſerving, Self-deſigning Judges, with this moſt remarkable Epiphonema: Qui eorum veſtigiis infiſtunt, eorum Exitus prehorreſcant; Thoſe that ſhall dare tread their Steps, let them dread (or expect) the like diſmal Ends.

Sir Richard Baker, the Beſt perhaps (for want of a better) of out Modern Engliſh Hiſtorians, gives ſomewhat a more particular Account of the Fate of theſe two Corrupt Huckſters of Law and Juſtice: Which be pleas'd to Peruſe in his own Words, fol. 254.

Speaking of King Henry the Eighth's general Pardon, at his firſt coming to the Crown, and how he Ordered Reſtitution to be made, of all Goods unjuſtly taken from any. He Adds:

And becauſe the Inſtruments of ſuch Injuſtice are Always moſt Odious; and nothing gives the People ſo much Contentment, as to ſee their Perſecutors Puniſhed. He therefore cauſed Empſon and Dudley, the Two Chief Actors of the late unjuſt Proceedings, to be Committed to the Tower, and divers of their Inferior Agents, called Promoters [The Raskally Informers, Penſionary Affidavit-Men, or (if you pleaſe) Robin Hogg's of that Age] As Camby, Page, Derby, Wight, Simpſon, and Storckton, to be ſet on the Pillory in Cornhil, with Papers on their Heads, and then to Ride through the City with their Faces to the Horſe-Tails, with the ſhame whereof, in Seven Days after they all Dyed in Newgate.

Shortly after a Parliament was called; whereof Sir Thomas Ingleby was choſen Speaker: And therein Empſon, and Dudley were Accuſed of High-Treaſon, and after Arraigned; Edmund Dudley, in Guild Hall, on the Seventeenth of July; and Sir Richard Empſon at Northampton, in October following. And on the Seventeenth of Auguſt, the year following, [Which was Anno Domini, 1510.] they were both of them Beheaded on the Tower-Hill; and their Bodies and Heads Buried, the one at White-Fryars, the other at the Black.

And alſo, by an Act of 1 H. 8th. Cap. 6. the before-recited Injurious Statute of 11 H. 7. was made void, and repeal'd; and the Reaſon thereof is yielded, for that by Force of the ſaid Act it was manifeſtly known, that many Siniſter and Crafty, Feigned, and Forged Informations, had been purſued againſt divers of the King's Subjects, to their great Damage and wrongful Vexation.

For it is not Credible, (ſaith the Lord Cook, Second Part of his Inſtitutes, fol. 51.) What horrid Oppreſſions and Exactions, to the undoing of Infinite Numbers of People, were Committed by Colour of that Act, ſhaking the Fundamental-Law of the Land: The ill Succeſs whereof, and the Fearful Ends of theſe Two Oppreſſors, ſhould deter others from Committing the like; and admoniſh Parliaments, That inſtead of this Ordinary and Precious Tryal, per Legem Terrae, they bring not in Abſolute and Partial Tryals by Diſcretion.

So much touching Empſon and Dudley, thoſe Names of Ignomony and Deteſtation. Let us now proceed to the Famous Caſe of Ship-Money, in the Reign of King Charles the Firſt, and the Extrajudicial and Illegal Opinions of the Judges therein Delivered, with the diſmal Conſequences thereof, as well to themſelves, as to the King, and whole Realm.

KING Charles the Firſt came to the Crown 27 March, 1625. In the Three Firſt Years of His Reign, he call'd Three ſeveral Parliaments; but none of them Complying to give ſo much Money, as was Expected: But rather inſiſting upon Complaints againſt Buckingham, the then Grand Favourite, and to have Publick Grievances Redreſſed, They were all Diſſolved in Diſcontent; and no more Parliaments ſpoken of, till that of the Thirteenth of April, 1640 (which was likewiſe ſuddenly Diſſolved.) During this long Interval, or Abſence of thoſe whom the Laws had Entruſted with Keeping the Right Keys of the Publick Purſe, there were ſome that would needs be Tampering to Pick it; I mean, ſeveral little Intrigues were ſet on Foot, to Supply the Court, and get Money from the Subjects, without their Common Conſent in Parliament; (that good Old Courſe, which Never Fail'd any KING, upon any Juſt Occaſion, or where they knew it ſhould not be diverted to the KING's Diſhonor, and the Nations further Grievance) Of this kind were, 1. The Privy Seals iſſued. 2. Benevolence required. 3. Commiſſions of Loan. 4. The Buſineſs of Knighthood; whereby all perſons Seiz'd of Lands and Rents of Forty Pounds per Annum, or upwards, were by Proclamation Summon'd, either to appear, and take upon them the Degree of Knighthood, or elſe were liable to be Fined for Reſpite of the ſame. Which (alone ſaith Baker, fol. 449) brought an Hundred Thouſand Pounds or more, into the Exchequer.

But all this was ſtill thought too little: Theſe Devices might ſerve for a preſent Shift, once, and no more; but there wanted a Continual Fund, or Conſtant Supply, as oft as the Court wanted, or tho't fit to require Money, without being beholden to Parliaments. Whereupon, 5ly. By the fatal Advice (as 'tis ſaid) of Noy, the then Attorney General, the King was put upon this Project of raiſing Money, by Iſſuing out Writs, Commanding his Subjects to be Rated, and Aſſeſſed in ſuch and ſuch Sums, for Building, and Equipping of Ships, for the publick Defence of the Kingdom: Which the ſaid Attorney perſwaded his Majeſty might be Juſtified by antient Precedents. In purſuance hereof, the King in the Ninth Year of his Reign, Iſſued out certain Writs of that kind, to the Sea-Ports, and Maritine-Parts of the Realm: And finding (for the moſt part) a punctual Obedience, and good Advantage thereby; it was in ſhort time after, adviſed to Extend the ſame Charge to all the Counties of this Realm, though never ſo remote from the Seas; wherein, meeting with ſome that refuſed to pay, as Conceiving the ſame Unlawful, the Judges (who by their Oaths, are the Kings proper Counſellors in all difficulties concerning the Law) were to be Conſulted with. So, a Letter was Written to them, from the King in theſe Word: [Baker's Chron. fol. 455.]

To our Truſty, and well-beloved Sir John Bramſton, Knight, Chief Juſtice of our Bench; Sir John Finch, Knight, Chief Juſtice of our Court of Common pleas; Sir Humphrey Davenport, Knight, Chief Baron of our Court of Exchequer; And to the reſt of the Judges of our Court of Kings Bench, Common Pleas, and the Barons of our Court of Exchequer. CHARLES REX.

TRuſty and Well beloved, We greet you well: Taking into our Princely Conſideration, that the Honour and Safety of this our Realm of England, (the Preſervation whereof, is Only Entruſted to our Care) was, and is more dearly concern'd, than in late or former times; as well by divers Counſels, and Attempts to take from us the Dominion of the Seas; of which we are ſole Lord, and Right Owner, and Proprietor; and the Loſs whereof, would be of greateſt Danger and Peril to this Kingdom, and other our Dominions, & many other ways. We for the avoiding of theſe, and the like Dangers; well Weighing with our ſelf, that where the Good, and Safety of the Kingdom in general is concern'd, and the whole Kingdom in Danger, there the Charge, and Defence ought to be Borne by all the Realm in general, did for the preventing ſo publick a Miſchief, reſolve with our ſelf, to have a Royal Navy prepared, that might be of Force and Power (with Almighty GOD's Bleſſing and Aſſiſtance) to Protect, and Defend this our Realm, and our Subjects therein, from all ſuch Perils and Dangers: And for that purpoſe, we Iſſued forth Writs under our great Seal of England, Directed to all our Sheriffs of our ſeveral Counties of England, and Wales; Commanding thereby all our ſaid Subjects in every City, Town, and Village, to provide ſuch a Number of Ships well-furniſht, as might ſerve for this Royal Purpoſe; and which might be done with the greateſt Equality that could be. In performance whereof, though generally throughout all the Counties of this our Realm, we have found in our Subjects, great Chearfulneſs, and Alacrity; which we Graciouſly Interpret as a Teſtimony, as well of their Dutiful Affection to us, and our Service, as of the Reſpect they have to the Publick, which well becometh every good Subject. Nevertheleſs, finding that ſome few happily out of Ignorance, what the Laws and Cuſtoms of this Realm are, or out of a deſire to be eaſed in their Particulars, how General ſoever their Charge be, or ought to be, have not yet Paid, and Contributed to their ſeveral Rates, and Seſsments that were ſet upon them. And foreſeeing in our Princely Wiſdom, divers Suits and Actions, are not unlike to be Commenced, and Proſecuted in our ſeveral Courts at Weſtminſter: We deſirous to avoid ſuch Inconveniencies, and out of our Princely Love, and Affection to all our People, being willing to prevent ſuch Errors as any of our Loving Subjects may happen to run into; have thought fit, in a Caſe of this Nature, to Adviſe with our Judges, who we doubt not are well Studied, and Informed in the Rights of our Sovereignty; and becauſe the Tryals of our ſeveral Courts, by the Formalities in Pleading, will require a long Protraction, We have thought fit by this Letter directed to you All, to require your Judgments in the Caſe, as it is ſet down in the Incloſed Paper; which will not only gain Time, but alſo be of more Authority to over-rule any Prejudicate Opinions of others in the Point.

Given under Our Signet, at Our Court of White-Hall, the Second of February, in the Twelfth Year of Our Reign, 1636. The CASE propounded in the Paper incloſed was thus worded: CHARLES REX.

WHen the Good and Safety of the Kingdom (in General) is concern'd, and the whole Kingdom in Danger; Whether may not the KING, by Writ under the Great Seal of England, Command all the Subjects in His Kingdom, at their Charge, to Provide and Furniſh ſuch Number of Ships with Men, Victuals, and Munition, and for ſuch Time as He ſhall think fit, for the Defence and Safe-guard of the Kingdom, from ſuch Danger and Peril? And by Law compel the Doing thereof, in caſe of Refuſal or Refractorineſs? And, Whether in ſuch Caſe, is not the KING the ſole Judge, both of the Danger, and when and how the ſame is to be prevented and avoided?

To which, the JUDGES delivered their Opinions as followeth: May it pleaſe Your moſt Excellent Majeſty!

WE have, according to Your Majeſtie's Command, ſeverally, and every Man by himſelf, and All of us together, taken into Serious Conſideration, the Caſe and Queſtions Signed by Your Majeſty, and incloſed in Your Letter. And We are of Opinion, That when the Good and Safety of the Kingdom (in General) is Concern'd, and the whole Kingdom in Danger, Your Majeſty may, by Writ under the Great Seal of England, Command all the Subjects of This Your Kingdom, at their Charge, to Provide and Furniſh ſuch Number of Ships with Men, Victuals, and Ammunition: and for ſuch Time, as Your Majeſty ſhall think fit, for the Defence and Safe-guard of the Kingdom, from ſuch Peril and Danger: And that by Law, Your Majeſty may Compel the Doing thereof, in caſe of Refuſal or Refractorineſs. And we are alſo of Opinion, That in ſuch Caſe, Your Majeſty is the ſole Judge, both of the Danger, and when and how the ſame is to be prevented and avoided.

John Branſton, John Finch Hum. Davenport, John Denham, Richard Hutton, William Jones, George Crook, Thomas Trevor, George Vernon, Robert Barclay, Francis Crawley, Richard Weſton.

But it is to be noted, That though all the Judges did thus Sign this Anſwer; yet it was not according to all their Opinions; for Crook and Hutton diſ-aſſented, and declared, That ſuch a Charge could not be laid by any ſuch Writ; but by Parliament. But the Major-Part of the Judges, being abſolutely Reſolved upon that Opinion, preſſed them to Subſcribe likewiſe with the reſt: for that the Greater Number muſt involve and conclude the Leſs; which, they ſaid, was uſual in all Caſes of Reference; And that the Leſſer Number muſt ſubmit to the Opinion of the More, although they varied in Opinion: As in the Courts of Law; If Three Judges agree in Opinion againſt One or Two, where there is Five Judges, Judgment is to be Entred per Curiam, if the Major Part agree, and the Others are to ſubmit unto it, &c. (Theſe are the very Words of Judge Crook, excuſing himſelf for having thus Subſcribed: See the Arguments on Hampden's Caſe, p. 12.)

Having thus got the Buſineſs back't with the Subſcriptions of all the Judges of England, the ſame were Enrolled in all the Courts of Weſtminſter-Hall: And now, they began to Proſecute briskly, all the Defaulters; amongſt whom, the Chiefeſt was John Hampden of Buckingham-ſhire, Eſquire, who had upon one of theſe Ship. Writs directed to the Sheriff of that County, been Aſſeſſed Twenty Shillings for his Lands in Stoke-Mandevil, in that County; which not being paid, was Certified (amongſt others) into the Chancery, upon a Writ of Certiorari, Dated 9 Martii, Anno 12 Car. by a Schedule thereunto annexed; and by a Writ of Mittimus, Teſte 5 Maii, 13 Car. tranſmitted into the Exchequer; with a Command there, to do for the Levying of the Sums ſo Aſſeſſed and Unpaid; Prout de Jure, & ſecundum, Legem Regni noſtri Angliae fuerit faciendum; So as of Right, and according to the Law of our Kingdom of England was to be done: whereupon a Scire Facius iſſued out of the Exchequer, reciting the ſaid Writs, to warn Mr. Hampden (amongſt others) to ſhew Cauſe, why he ſhould not be Charged with this Money. Upon this, he being Summoned, Appeared, and demanded Oyer of thoſe Writs and Schedule; which being Entred, he Demur'd in Law; that is, demanded the Opinion and Judgment of the Court of Exchequer, Whether this Writ were ſufficient in Law, to Force him to pay the ſaid Twenty Shillings.

This being a Great and General Caſe, the Barons of the Exchequer, deſired the Aſſiſtance of the reſt of the Judges, who did Joyn accordingly. The Caſe was argued, firſt, by Counſel on both Sides; and next, by the Judges ſeverally; of whom, Sir Richard Hutton, Knight, one of the Judges of the Common Pleas, and Sir Richard Crook, Knight, one of the Judges of the King's Bench, in large and learned Arguments, (ſince Printed) did ſhew the Illegality of ſuch Writs, and gave their Opinion; That the Defendant Hampden, ought not to be Charged. But the reſt of the Judges were reſolved to carry the Point for the King: and accordingly gave their Opinions, That the Defendant ought to be Charged. And then, it was the Part of the Barons of the Exchequer, to give Judg •• ent; which was Entred in theſe Words:

Quod ſeperalia Brevia predicta, & Retorn' eorundem, ac Schedul' praedict' eiſdem Annex' ac materia in eiſdem content' ſufficient' in Lege Exiſi' ad praefat Johannen Hampden de predictis viginti ſolidis ſuper ipſum informa, & ex cauſa praedictae Aſſeſſae onerand. Ideo conſideratum eſt per eoſdem Barones quod praedictus Johannes Hampden de eiſdem viginti ſolidis oneretur, & inde ſatisfaciat: That the ſaid ſeveral Writs and Returns thereof, and the Schedules thereunto annex't, and the Matter in the ſame contained, are ſufficient in Law to Charge the ſaid John Hampden with the Twenty Shillings upon him, in the Form, and by Vertue of the Aſſeſsment aforeſaid impoſed. Therefore, it is conſidered by the ſaid Barons, That the ſaid John Hampden ſhall be Charged, and ſhall ſatisfy the ſame.

This Judgment was impoſed, as ſuch an Infallible Determination of the Law in this Caſe, that no further Diſpute would be allow'd thereof to any others; inſomuch, that a Perſon of Honour, having a Caſe depending in the King's-Bench, was denyed any Argument or Debate, concerning the Right of Ship-Money, for no other Reaſon, but that it had been by the former Judgment, decided already in the Exchequer.

It may perhaps be ſaid: This Impoſition of Ship Money was ſmall and inconſiderable; Mr. Hampden, a Gentleman of a fair Eſtate, was Aſſeſſed but Twenty Shillings: And, Why ſhould any Body ſcruple ſuch a petty Buſineſs, when the King Commanded it? Was not the Redemy far worſe than the Diſeaſe? Why ſhould any Subject exſpend a great deal of Money in Law, to avoid Payment of ſo Trivial a Sum? Or, What Harm could accrue to the Publick, by the Judges allowing the King Power to Impoſe ſuch an Aſſeſsment, when it was for the Defence of the Realm from Eminent and Imminent Danger, and he exerted that Power ſo favourably, &c.

In Anſwer to ſuch Objections, it muſt be ſaid; That true it is, it was then only Mr. Hampden's Caſe; but the whole Nation, every individual Subject of England, was concern'd in it: nay, ſo far concern'd, that all his Eſtate and Liberty was therein given up. The Queſtion was not Quantum, but Quo Jure? If Publick Danger might give the King Title to lay Impoſitions without a Parliament, and He alone were Judge of ſuch Danger, When might it not be alledged? If Twenty Shillings were Aſſeſſed on Mr. Hampden that Year, How did it appear, but Twenty Pounds might be required the next, and Two Thouſand Pounds the Year following? And, What Uſe, what Occaſion would the Court have had for ever afterwards of a Parliament? But as to the Illegality of theſe Ship Writs, I refer the Reader to Judge Crook's Argument; where the ſame is Demonſtrated to be againſt the Common Law, againſt divers Statutes, not to be maintain'd by any Prerogative, or Power Royal, unwarrantable by any former Precedents, &c.

Let us ſee then, what were the Conſequences of theſe Extra judicial Opinions, and this Illegal Judgment of the Judges.

Firſt, As to the King: They thereby miſ led him (as much as in them lay) to Diſcompoſe the Harmony of Government; to Entrench upon the Property of His Subjects; and (contrary to his Intentions) by Colour of Right, to violate the Laws, which, do doubt, that Good Prince meant to have preſerv'd inviolable

Secondly, As to the Subjects: They were not only hereby Injured, but their Affections Alienated from their Sovereign; which to occaſion, is to doubt a very High (becauſe almoſt Irreparable) Treaſon.

The Genuine Senſe of theſe Reſolutions, being no leſs than this; That the King of England, as often as Himſelf pleaſeth, may declare the Kingdom to be in Danger, and that ſo often, His Majeſty, for Prevention of ſuch Dangers, may, by His Writ under the Great Seal of England, alter the Property of the Subjects Goods, without their Conſent in Parliament; and that in ſuch Proportions as His Majeſty ſhall think fit: And beſides, may deprive them of the Liberty of their Perſons, and that in ſuch Manner as Himſelf ſhall pleaſe.

Thirdly, As to the Judges themſelves: It prov'd deſervedly Fatal; For no ſooner was a Parliament Call'd, but they were call'd to Account for theſe their Illegal Opinions and Judgment.

And after a long Debate, on Monday the Seventh of December, 1640 theſe Four ſeveral Votes Paſſed upon them, without ſo much as One Negative Voice to any of them, viz.

Firſt, THat the Charge impoſed upon the Subjects, for the Providing and Furniſhing of Ships; and the Aſſeſsments for Raiſing of Money for that purpoſe, commonly called Ship-Money, are againſt the Laws of the Realm, the Subjects Right of Property, and contrary to former Reſolutions in Parliament, and to the Petition of Right.

Secondly, That the Extrajudicial Opinions of the Judges, Publiſhed in the Star-Chamber, and Inrolled in Courts as Weſtminſter (before Recited) in the whole, and in every part of them are againſt the Laws of the Realm, the Right of Property, and the Liberty of the Subjects, and contrary to former Reſolutions in Parliament; and to the Petition of Right.

Thirdly, That the writ to the Sheriff of Bucks (particularly Recited) and the other Writs, commonly called Ship-Writs; are againſt the Laws of the Realm, the Right of Property, and the Liberty of the Subjects, and contrary to former Reſolutions in Parliament, and to the Petition of Right.

Fourthly, That the Judgment in Mr. Hampden's Caſe (as before Recited) in the matter and ſubſtance thereof; and in that it was conceived that Mr. Hampden was any way Chargeable, is againſt the Laws of the Realm, the Right of Property, the Liberty of the Subjects, and contrary to former Reſolutions in Parliament, and to the Petition of Right.

Theſe Votes being Tranſmitted by the Commons to the Houſe of Lords; Their Lordſhips did Concur therein. And on Fryday the 26. of February, 1640. It was Ordered by the Lords Spiritual and Temporal, in the High Court of Parliament, Aſſembled; That the Lord Keeper, or Maſter of the Rolls, the Two Lord Chief Juſtices, and the Lord Chief Baron; and likewiſe the Chief Clerk of the Star-Chamber, ſhould bring into the Upper Houſe of Parliament, the Records of the Judgment againſt Mr. Hampden, concerning Ship-Money, in each of thoſe ſeveral Courts, and that a Vacat thereof ſhould be made. And that a Copy of the Judgment of the Parliament, concerning the Illegality thereof, ſhould be Delivered to the ſeveral Judges of Aſſ •• e; and that they ſhould be required to Publiſh the ſame in all the Circuits. Which on the 27. of the ſame February, was done accordingly: the ſaid Records being Vacated, and the Rolls Croſs'd with a Pen in the Houſe of Lords, and Subſcribed with the Clerk of the Parliament's Hand.

And ſoon after, ſeveral of the before-named Judges were Impeached for the ſame in Parliament: And not daring to ſtand the Shock, ſome of them, as the Lord Chief Juſtice Finch, Fled beyond the Seas; and others Abſconded. And ſoon after, came on the Unnatural Civil Wars, ſo Deſtructive to King and Kingdom; which, though no way Juſtifiable, yet it cannot be denied; but they were not a little Occaſion'd, and the Animoſities of the People, blown into an Untameable Flame, by theſe baſe Traiterous Proceedings of thoſe Sycophant Judges. And Woe unto thoſe (ſay Sacred Oracles) by whom Offences come.

However, after ſo many diſmal Experiences, and fair Warnings, and the Miraculous Reſtauration of His preſent Majeſty, our Gracious Soveraign (whom God long Preſerve) a Prince of Incomparable Lenity, and Good-natur'd beyond Example; it might be hoped, that none, Preferr'd to the Publick Seats of Juſtice, durſt to have Acted ſo contrary to His Royal Inclinations, as to violate thoſe Laws, which He Himſelf has Sworn to Maintain, and Intruſted them to Adminiſter: Yet ſo Baſe and Extravagant are ſome, as even to abuſe the Favours of the Beſt of Princes, and pufft up with Preferment, will take no Admonition from the Falls of their Head-ſtrong Predeceſſors; but ſtill preſume to fully thoſe Ermins, (the Emblems of Innocency and Integrity) which they wear, and adventure on the ſame Deſtructive Precipices.

You have heard, how heinouſly our Prudent Anceſtors reſented the Violation of their Liberties, (though by an Act) in Tryals of the Free-born People of England WITHOUT JURIES. Next to which, is the Ruffling, Hectoring, and Over-awing of Juries: For, What real Difference is there, betwixt allowing no Juries at all, and Menacing them into a Compliance (contrary to Law, and their own Conſciences) with the Corrupt Humours, and Time-ſerving Intereſts of ill Judges? Of this Crime, the Lord Chief Juſtice Keeling, about the Year 1666. (a Time when God's General Judgments on this Sinful Land, might have awakened them to greater Circumſpection and Uprightneſs) was not only Guilty, but Queſtion'd for the ſame, even by That very Parliament, which was never extraordinarily Celebrated for bringing Publick Vermine to Puniſhment: Yet ſuch a Senſe they had of theſe ill Practiſes, that in their Journal, we find the following Votes on this Occaſion.

Die Mecurii 11 Decembris, 1667.

THE Houſe Reſuming the Hearing of the reſt of the Report, touching the Matter of Reſtraint upon Juries; and upon the Examination of divers Witneſſes in ſeveral Caſes of Reſtraints put upon Juries, by the Lord Chief Juſtice Keeling,

Reſolved, as followeth;

Firſt, That the Proceedings of the ſaid Lord Chief Juſtice, in the Caſes now Reported, are Innovations in the Tryals of Men for their Lives and Liberties; and that he hath uſed an Arbitrary, and Illegal Power, which is of dangerous Conſequence to the Lives and Liberties of the People of England, and tends to the Introducing of an Arbitrary Government.

Secondly, That in the Place of Judicature, the Lord Chief Juſtice hath Undervalued, Vilified, and Contemned MAGNA CHARTA; the great Preſerver of our Lives, Liberties, and Property.

Thirdly, That he be brought to Tryal, in Order to Condign Puniſhment, in ſuch Manner as the Houſe ſhall judge moſt Fit and Requiſite.

And again: Die Veneris 13 Decembris, 1667.

Reſolved, THat the Precedents, and Practice, for Fining or Impriſoning of Jurors for Giving their Verdicts, is Illegal.

Here you ſee, the ill Practices of that Chief Juſtice were Branded in Parliament, and he was ordered to be Proſecuted; though by reaſon of the Houſes being Prorogued, and he himſelf not long after Dying in Diſcontent, we do not find there were any further Proceedings made therein.

At the Seſſions for London, Sept. 1670 William Penn, and William Mead, (Two of the People commonly called Quakers) being Indicted: For that they the Fourteenth of Auguſt before, did with others, to the Number of Three Hundred, in Grace-Church-Street, Unlawfully and Tumultuouſly Aſſemble, &c. by reaſon whereof a great Tumult did there happen, in Contempt of the King, great Diſturbance of the Peace, & Terror of the People, &c. And the Jury (after having been ſeveral times ſent back, and kept Cloſe from the Saturday till the Monday Morning) bringing them in Not Guilty, Sir John Howel then Recorder of London, preſumed to Fine the ſaid Jury Forty Marks a Man, and to Lye in Priſon till paid. Being thus in Cuſtody, Edward Buſhel, one of the ſaid Jury-Men, brought his Habeas Corpus in the Court of Common-Pleas; and upon a long Argument, it was Adjudged by the whole Court, That the ſaid Fining and Commitment was Illegal: Whereupon the ſaid Buſhel was Diſcharged, and left to bring his Action for Falſe Impriſonment, againſt the ſaid Recorder: Which Caſe is Reported by the Lord Vaughan, at that time Chief Juſtice of the ſaid Court, in his Reports, Licenſed and Approved of by the preſent Lord-Chancellor of England; Sir William Scroggs, ſince Lord Chief-Juſtice of the King's-Bench, my Lord North, Chief Juſtice of the Common Pleas; and all the Judges of England. But as to the Illegality of any Courts Impoſing upon, Menacing, Fining, or Impriſoning Juries, ſee a ſmall Treatiſe, Entituled, The Engliſh-Man's Right, Printed for R. Janeway, 1680. and another called, The Grand-Jury-Man's Oath and Office Explained, Sold by Langley Curtis, on Ludgate-Hill; both well worthy the Peruſal of every True Engliſh-Man.

What Proceedings have been ſince, or rather are at this inſtant pendent againſt Judges, for Hectoring of Juries, and other Illegal Arbitrary Proceedings, are too freſh in every Bodies Memory, to need a Recital. Inſtead of which, I ſhall rather Inſert the Form of the Oath, Taken by Judges at their firſt Admittance to that Office; which runs as follows:

The OATH of a JUDGE. Indorſd'. Clauſ' de Anno 20. Edw. 31. Part. Prima.

YE ſhall Swear, That Well and Truly ye ſhall Serve our Sovereign Lord the King, and His People, in the Office of Juſtice: And that ye ſhall Counſel our Sovereign Lord the King, in His Needs: And that ye ſhall not give any Counſel. or Aſſent to any thing, the which might turn to Hurt, or Diſ-herking of the King, by any Way or Colour: And that ye ſhall not know any Hurt, or Diſ •• heriting of the King; but that ye ſhall make it to Him knows, by You, or by ſome other Perſon: And that ye ſhall do equal Law and Execution of Right, to all the King's Subjects, Rich and Poor, without having Regard to any Perſon: And that ye ſhall not take by You, or by any other privily, one apart, any Gift or Reward of Gold, or of Silver, nor of any other Thing, the which might turn you to Profit, unleſs it be Meat or Drink; and that of Little Value, of any Man that ſhall have any Plea, or Proceſs hanging before you, as long as before your ſelf ſuch Pleas and Proceſſes ſhall be hanging, nor after, for that Cauſe: And that ye ſhall take no Fees, as long as ye be Juſtice, nor Robe of any Perſon, great or ſmall, in any Caſe, but of the King Himſelf: And that ye ſhall not give any Counſel, or Advice to any Perſon, great or ſmall, in any Caſe, where the King is Party: And in caſe that any Perſons, of what ever Eſtate they be, come before You in Seſſions, with Force and Arms, or otherwiſe, againſt the Peace, or againſt the Form of the Statute thereof made, for to diſturb the Execution of the Common-Law, or for to Menace the People, that they may not do the Law; That ye ſhall Arreſt their Bodies, and put them in Priſon; and in caſe they be ſuch as ye may not Arreſt, that ye ſhall Certifie the King of their Names, and of their Miſdoing haſtily; to that End, that he may thereof Ordain Remedy: and that ye ſhall not maintain by your ſelf, nor by none other privily nor openly, any Plea or Quarrel hanging in the King's Courts, or elſewhere in the Country: And that ye ſhall not Delay any Perſon of Common-Right, for the Letters of the King, or of any other Perſon, nor for any other Cauſe: And in caſe that any Letters come to you contrary to the Law, that ye ſhall nothing do for ſuch Letters, but ye thereof ſhall Certifie the King: And ye ſhall proceed to do the Law, the ſame Letters notwithſtanding; and that ye ſhall do, And procure the Profit of the King, and his Crown in all Things, where ye them Reaſonably may do. And in caſe that ye be found in Default here-after, in any of the Points afore-ſaid, ye ſhall be at the King's Will of Bodies, Lands, and of Honour, to do thereof that that ſhall pleaſe the King.

This well contrived, neceſſary Oath, preſcribed by the Prudence of our Fore-Fathers, would bear a large Comment; but we muſt haſten, and ſhall only remark:

Firſt, That they Swear, Well and Truly (that is, Uprightly, and according to Law) to Serve the King, and his People.

Secondly, That they ſhall do Equal Right, and Execution of Law, to all the King's Subjects, Rich and Poor; (that is, without Partiality, Favour, Malice, &c.) Juſtice is Pictured Blind in reſpect of the Subject, not the Object: She has a Ballance, not to weigh Gold, but the Crime: She has regard to Offences, not Perſons.

Thirdly, That if any Letters from the King (unduly obtain'd, for ſo all ſuch are ſuppoſed to be) ſhall be brought to them, contrary to Law, they are not to regard them; much leſs are they to value any Verbal Commands, or little Raskally Inſinuations of any Court Favourites, huſſing Grandeos, or ſmall Minions of State.

Fourthly, That by this their Oath, Judges are to proceed according to Law; their Buſineſs is Jus Dicere, to Declare and Adminiſter the Laws Eſtabliſh'd; not Jus Dare, to Impoſe their own Whimſical, Arbitrary, Peeviſh, or Self-deſigning Opinions, for Law; or to Uſurp a Legiſlative Power, ſo as deliver that to be Law, which in truth is not ſo. And if they ſhall preſume to offend herein, they are Exemplarily to be puniſhed: For ſince 'tis a known Maxim of Law, Ignorantia Juris non excuſat, That Ignorance of the Law ſhall excuſe no Man; (The Reaſon of which, is, becauſe every Man a ſuppoſed to be Privy, and conſenting to all our Laws, by his Repreſentatives in Parliament.) How much leſs are Judges (whoſe Profeſſion and Office it is to Underſtand the Law; and therefore, muſt take Notice of it, at their Peril) to be Indulg'd? Under what Character will they plead Excuſe? Are they Perſons of known Learning, and ſtrong Natural Parts, great Reading, exquiſite Eloquence, &c? All this but aggravates their Fault, that they ſhould abuſe ſuch good Gifts, to the Diſhonour of the King that Commiſſions them, and Prejudice of His People that expected more exact Dealings from ſuch Eminent Accompliſhments. Will they ſhelter themſelves under the before-mentioned Plea of Ignorance? This is already ſhewn to be an Invalid Allegation; and beſides, 'tis a Reflection on that Royal Power that Preferr'd them: And, What infinite Miſchiefs (of which there is no Particular Complaint or Information) may the Subjects ſuffer in their Lives, and Fortunes, under ſuch Ignorance, which is always attended with Equal Preſumption? Or, laſtly, Suppoſe it ſhould be offered in their Favour, That for ſome time, at firſt, they were Upright, and have had the Reputation of Prudence and Integrity, in all Caſes, except ſuch and ſuch: for which NOW they are queſtioned: To this it may be fitly Anſwer'd, (as he of Lacedemon ſaid of the Athenians) If they carryed themſelves W ll, when Time was, and now Ill, they deſerve a Double Puniſhment; becauſe they are not Good, as they were: and becauſe they are Evil, as they were not. The Judges, 'tis true, are declared in the Parliament-Roll of the 11 R. 2. to be Executors of the Statutes, Judgments, and Ordinances of Parliament: But they muſt not make themſelves the Executioners of them too, by endeavouring the Deſtruction of the Fundamentals of our Laws and Liberties. The Law is the Temple, the Sanctuary, whither the Subject is to run for Shelter and Defence: But if the Judges, Sacerdotes Juſtitiae, thoſe Prieſts of Juſtice, ſhall, like thoſe of Delphos, utter Falſe, Ambiguous, and Time-Serving Oracles, Where is the Comfort of the Poor Votaries? Will not this Sanctuary then become Templum ſine Numine, like that of the Roman Emperour, who after he had built it, put no Gods into it? We ſhall have the Dead Killing Letter of the Law; but not the Quickening, Preſerving Senſe of it: The Fabrick and Formalities of the Temple; but the Goddeſs Aſtraea, and the Dii Tutelares, all that ſhould Conſerve our Liberties and Properties, will be vaniſh't: And inſtead thereof, we ſhall have but an Indian Pa-god, a frightful, terrible Idol of Arbitrary Power, delighting in Humane Sacrifices, and only Adorable for Averting that Miſchief, with which it threatens us.

But Contraria juxta ſe poſita magis eluceſcunt: Contraries illuſtrate each other. We have hitherto Treated the Reader with Doleſome Narratives of Lewd Judges: Let us now (briefly) Entertain him with an Account of ſome Good and Imitable Ones; Memoria Juſti in Aeternum.

In the Reign of King H. 4 His Son and Heir apparent (then a Wild Youth, but afterwards as Solid, and Renowned a King, as moſt that have ſway'd the Engliſh Scepter) hearing that one of his Companions was Arraigned for Felony before the Lord Chief Juſtice of England (I am ſorry my narrow Reading has not brought me acquainted with his Honourable Name) came to the Bar, and offered to take away the Priſoner by force; but being withſtood by the ſaid Chief Juſtice, ſtepped to him, and Struck him over the Face; whereat the Judge nothing daunted, roſe up, and with a Gravity becoming his Dignity, told him, That he did not this Affront to Him, but to the King his Father, in whoſe Place he ſate; and therefore, forthwith Committed him to Priſon. The Prince Over-aw'd with the Majeſty of the Sage Judge's Expreſſions, calmly Suffered himſelf to be carried away by an ordinary Tip-Staff; which being told the King, He not a little Rejoyced, both that he had a Judge of ſuch Couragious Integrity; and a Son of ſuch Submiſſive Obedience to his Laws, Vide Baker fol. 163.

The Famous Queen Elizabeth, having required a Charge upon divers of Her Subjects, by particular Letters from the Lords of Her Council, of ſeveral Sums of Money, for preſent Aid towards Her Wars in Ireland; hearing that one of Her Judges, viz, Mr. Juſtice Walmeſley, being conven'd before the ſaid Lords, for Non Payment thereof, thereby Diſcouraging others; had Anſwered, That it was Contrary to Law that the ſame ſhould be Impoſed, there being an Expreſs Statute againſt it; which He being a Judge, was bound by his Oath, to ſignifie to Her Majeſty, he being (as much as in him lay) a Conſervator of the Queens Oath in that behalf; Her Majeſty was much Offended, that any ſuch Impoſition had been pretended to, and Commanded that it ſhould be ſtopped from further Gathering; and to ſuch as had paid it, their Money, by Her expreſs Order, was Reſtored. Judge Crooks Argument in Hampden's Caſe, p. 57.

In the 29th. of the ſame Queen, Her Majeſty having Erected a New-Office in the Common Pleas, for making of Superſedeas on Exigents, She Grants it to one Cavendiſh Her Servant; ſends to have him admitted, but the Judges delay the doing thereof, On this Reaſon, becauſe the Prothonotaries, and Philizers Claimed the making thoſe Writs. The Queen ſends a Sharp Letter, and Commands them forthwith to Admit him: Then She ſends a more poſitive Command, requiring the Reaſon of their Contempt and Diſobedience. The Judges return the beforementioned Reaſon to the Lord Keeper, and Earl of Leiceſter (no mean Man in thoſe Days) upon which, the Queen ſends a Fourth Peremptory Meſſage for their Admitting him, with this Reaſon: That if the others were put out, they were Rich, and Able Men, and that Her Courts of Juſtice were Open, where they might Demand their Right; for this was not to debar them Therefrom, but only to put them to their Action. The Honeſt Judges returned this Anſwer, That the Queen had taken Her Oath, for the due Execution of Juſtice According to Law, and they did not doubt, but when Her Majeſty was Informed it was againſt the Law, She would Act therein as became her. For their own parts, they had taken an Oath to God, to Her, and the COMMON-WEALTH; And if they ſhould do it without Proceſs of Law before them, and only upon Her Command put the others out of Poſſeſſion, though the Right remained to them, it were a Breach of their Oath; and therefore, if the Fear of God were not Sufficient, they told Her the Puniſhment, that was Inflicted upon their Predeceſſors for Breach of their Oaths (citing Thorpe, &c) might be a ſufficient Warning to them: Whereupon the Queen hearing theſe Reaſons, was Satisfied; and the ſaid Judges heard no more of this Buſineſs.

To Deſcend nearer our own Times, we cannot omit that grand Example of Uprightneſs, the ever Famous Sir Matthew Hale, late Lord Chief Juſtice of the King's-Bench; a Miracle for all other parts of Polite and Serious Learning, as well as profound knowledge in the Laws of England. Of whom I ſhall yet, not offer any particular Inſtances, ſince his whole Life was one continued Thread of Sincere, and Underſtanding Juſtice: For as eaſily you might have juſtled the Sun out of the Ecliptick, as to have warp'd him from his conſtant Road of Integrity. An exact Standard whereby Future Princes may meaſure the Qualifications of their Judges; for though he were a moſt Loyal, and Zealous Servant to the Crown; yet he was ſo far from being ever Impeached by the Repreſentative Body of the Nation, that no one Single Perſon (no not of thoſe that were Caſt before him) were ever heard to complain of his Conduct.

And if any Latter Judges have been diſmis'd by falſe Tales of Sycophant Whiſperers, or for oppoſing baſe Illegal Arbitrary Intereſts; as they have the Invaluable Satisfaction of a good Conſcience for their Comfort; ſo they may be aſſured, they ſtill appear more Glorious in the Eyes of all good Engliſh Men at preſent, and will be Recorded more Venerable to Poſterity, than any Robes or Preferment, ſullied with Bribery, Flattery, or Treacherous Compliances, could render them.

However, we hope the Various Examples, we have here Enumerated from Authentick Records, and Hiſtories, may be ſufficient to Deter future Judges from Ill Courſes; and ſatisfie all the World, both in the Juſtice of the Parliaments late Proceedings in this Caſe, and the Reaſonableneſs of their Vote and intended Bill, That Judges henceforth ſhould hold their Places, and Salaries, not Ad Placitum, but Quam Diu ſe bene geſſerint. Which was the principal Aim of theſe Papers. Fiat Juſtitia.

FINIS.

ERRATA. Preface l. 8. r. Deſign. p. 4. l. 28. r. Acquittance. p. 20. l. 34. for to r. no.