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contrary to the old way of trying by peers; for then it would be connected to a contradiction.

Befides, Coke well obferves, That in the 4th chap. of the 25 Ed. 3. per legem terra, imports no more than a trial by due process, and writ original at common law; which cannot be without a jury: therefore per judicium parum, & per legem terra, fignify the fame privilege unto the people, Coke, Inft. 2. p. 50.

Thus have we prefented you with fome of those maxims of law, dearer to our ancestors than life, Because they are the defence of the lives and liberties of the people of England.' It is from this 29th chap, of the great charter (great, not for its bulk, but the privileges in it) as from a fpacious root, that fo many fruitful branches of the law of England fpring, if Coke may be credited. But how facred foever they have been esteemed, and still are by noble and juft minds, yet fo degenerate are fome in their proceedings, that, confcious to themfelves of their bafenefs, they will not dare ftand the touch of this great charter, and those just laws grounded upon it: of which number, we may truly rank the mayor and recorder of London, with the rest of their wife companions, in their late feffions at the Old Bailey, upon the occafion of the prifoners.

First, The prisoners were taken, and imprisoned, without prefentment of good and lawful men of the vicinage, or neighbourhood, but after a military and tumultuous manner, contrary to the grand charter.

Secondly, They refused to produce the law upon which they proceeded; leaving thereby the prifoners, jury, and the whole affembly in the dark.

Thirdly, They refused the prifoners to plead, and directly withstood that great privilege, mentioned in the first chap. 25 Ed. 1. where all juftices, mayors, fheriffs, and other minifters, that have the laws of the land to guide them, are required to allow the faid charter to be pleaded in all its points, and in all cafes that fhall come before them in judgment:' for no fooner did William Penn, or his fellow-prifon

er,

er, urge upon them the great charter, and other good laws, but the recorder cried, Take him away; take

him away, and put him into the bale-dock, or hole:' from which refufal the recorder can never deliver himself, unless it be by avowing, the laws are not his guide, and therefore he does not fuffer them to be pleaded before him in judgment.

Fourthly, They gave the jury their charge in the prifoners abfence, endeavouring highly to incenfe the jury against them,

Fifthly, The verdict being given (which is in law DICTUM VERITATIS, the voice of truth herself) being not suitable to their humours, they did five times reject it, with many abufive, imperious, and menacing expreffions to the jury, fuch as no precedent can afford us; as if they were not the only conftituted judges by the fundamental laws of the land, but mere cyphers, only to fignify fomething behind their figures.

Sixthly, Though the prifoners were cleared by their jury, yet were they detained for the non-payment of their fines, laid upon them for not pulling off their hats; in which the law is notoriously broken.

Ift. In that no man fhall be amerced, but according to the offence; and they have fined each forty marks.

2d. They were not amerced by any jury, but at the will of an incenfed bench.

Befides, there is no law against the hat; and where there is no law, there can be no tranfgreffion, and confequently no legal amercement, or fine, 9 Hen. 3. chap. 14. But how the prifoners were trepanned into it, is moft ridiculous on the fide of the contrivers; who, finding their hats off, would have them put on again by their officers, to fool the prifoners with a trial of putting them off again: which childish conceit not being gratified, they fined them forty marks apiece.

Seventhly, Inftead of accepting their verdict as good in law, and for the true decifion of the matter, according to their great charter, (that conftitutes them

proper

proper judges, and which bears them out, with many other good laws, in what they agree to as a verdict) the court did moft illegally and tyrannically fine and imprison them, as in the trial was expreffed; and that notwithstanding the late juft refentment of the house of commons in judge Keeling's cafe, where they refolved, that the precedents and practice of fining and imprisoning of juries for their verdicts, were illegal. And here we must needs obferve two things:

First, That the fundamental laws of England cannot be more flighted, and contradicted in any thing (next to Englishmens being quite destroyed) than in not fuffering them to have that equal medium, or just way of trial, that the fame law has provided, which is by a jury.

Secondly, That the late proceeding of the court at the Old Bailey, is an evident demonftration, that juries are now but mere formality, and that the partial charge of the bench must be the verdict of the jury: for if ever à rape were attempted on the confcience of any jury, it was there. And indeed, the ignorance of jurors of their authority by law, is the only reafon of their unhappy cringing to the court, and being scared into an anti-confcience verdict by their lawless threats.

But we have lived to an age fo deboift from all humanity and reafon, as well as faith and religion, that fome stick not to turn butchers to their own privileges, and confpirators against their own liberties. For however magna charta had once the reputation of a facred, unalterable law, and few were hardened enough to incur and bear the long curfe that attends the violators of it, yet it is frequently objected now, that the benefits there defigned are but temporary, and therefore liable to alteration, as other ftatutes are, What game fuch perfons play at, may be lively read in the attempts of Dionyfius, Phalaris, &c. which would have will and power be the people's law.

But that the privileges due to Englishmen by the great charter of England, have their foundation in

reafon

reason and law; and that those new Caffandrian ways to introduce will and power, deserve to be detested by all perfons profeffing fenfe and honefty, and the leaft allegiance to our English government, we shall make appear from a fober confideration of the nature of thofe privileges contained in that charter.

1. The ground of alteration of any law in government, where there is no invafion, fhould arife from the universal difcommodity of its continuance: but there can be no difprofit in the continuance of liberty and property; therefore there can be no just ground of alteration.

2. No one Englishman is born a flave to another, neither has the one a right to inherit the sweat and benefit of the other's labour, without confent; therefore the liberty and property of an Englishman cannot reasonably be at the will and beck of another, let his quality and rank be ever fo great.

3. There can be nothing more unreasonable than that which is partial: but to take away the LIBERTY and PROPERTY of any (which are natural rights) without breaking the law of nature (and not of will and power) is manifeftly partial, and therefore unreasonable.

4. If it be just and reasonable" for men to do as "they would be done by;" then no fort of men fhould invade the liberties and properties of other men; because they would not be served so themselves.

5. Where liberty and property are destroyed, there must always be a state of force and war: which however pleafing it may be unto the invaders, it will feem intolerable by the invaded; who will no longer remain fubject, in all human probability, than while they want as much power to free themselves, as their adverfaries had to inflave them. The troubles, hazards, ill confequences, and illegality of fuch attempts, as they have been declined by the most prudent in all ages, fo have they proved moft uneafy to the most favage of all nations; who firft or last have by a mighty torrent freed themselves, to the due punishment and

great

great infamy of their oppreffors fuch being the advantage, fuch the disadvantage, which neceffarily do attend the fixation, and removal, of liberty and property.

We fhall proceed to make it appear, that magna charta, as recited by us, imports nothing less than their prefervation.

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No freeman fhall be taken, or imprisoned, or be diffeifed of his freeholds, or liberties, or free cuftoms, or be outlawed, or exiled, or any other ways deftroyed; nor will we upon him pafs, nor condemn him, but by the lawful judgment of his peers,' &c.

A freeman fhall not be amerced for a small fault, but after the manner of the fault; and for a great fault, after the greatnefs thereof: and none of the • faid amercements fhall be affeffed, but by the oath of good and lawful men of the vicinage.'

Firft, It afferts Englishmen to be free: that is liberty.

Secondly, That they have freeholds: that is pro

perty.

Thirdly, That amercement, or penalties, fhould be proportioned to the faults committed: which is equity.'

Fourthly, That they fhall lofe neither, but when they are adjudged to have forfeited them in the judgment of their honeft neighbours, according to the law of the land: which is lawful judgment.'

It is easy to difcern to what pass the enemies of the great charter would bring the people of England. First, They are now freemen: but they would have them flaves.'

Secondly, They have now right unto their wives, children, and estates: but such would rob and spoil < them of all.'

Thirdly, Now no man is to be amerced, or punished, but fuitably to the fault: whilst they would make it fuitably to their revengeful minds, and unlimited < wills.'

Fourthly,

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