с

Fourthly, Whereas the power of judgment lies in the breafts and confciences of twelve honeft neighbours; they would have it at the difcretion of mercenary judges.' To which we cannot choose but add, that fuch difcourfes manifeftly strike at this prefent constitution of government; for it being founded upon the great charter (which is the ancient common law of the land) as upon its beft foundation, none can defign the concealing the charter, but they must neceffarily intend the extirpation of the English government; for where the cause is taken away, the effect must consequently cease. And as the restoration of our ancient English laws by the great charter, was the fovereign balfam which cured our former breaches, fo doubtlefs will the continuation of it prove an excellent prevention to any future difturbances.

But fome are ready to object, That the great charter confisting as well of religious as civil rights, the former having received an alteration, there is the fame reason why the latter may have the like.'

To which we answer, That the reafon of alteration cannot be the fame; therefore the confequence is falfe. The one being matter of opinion about faith and religious worship, which is as various as the unconftant apprehenfions of men; but the other is matter of fo immutable right and juftice, that all generations (however differing in their religious opinions) have concentered and agreed to the certainty, equity, and indispensable neceffity of preferving thefe fundamental laws; fo that magna charta hath not rifen and fallen with the differing religious opinions that have been in this land, but hath ever remained as the ftable right of every individual Englishman, purely as an Englishman. Otherwise, if the civil privileges of the people had fallen with the pretended religious privileges of the popish tyranny, at the firft reformation (as must needs be fuggefted by this objection) our cafe had ended here, that we had obtained a spiritual freedom, at the cost of a civil bondage: which certainly was far from the intention of the firft reformers; and, pro

bably,

bably, an unfeen confequence by the objectors to their idle opinion.

In short, there is no time in which any man may plead the neceffity of fuch an action as is unjuft in its own nature; which he muft unavoidably be guilty of, that doth deface or cancel that law by which the justice of liberty and property is confirmed and maintained to the people. And confequently, no perfon may legally attempt the fubverfion, or extenuation, of the force of the great charter. We fhall proceed to prove them inftances out of both.

First, Any judgment given contrary to the faid charter, is to be undone and holden for nought.' 25 Edw. 1. chap. 2..

Secondly, Any, by word, deed, or counfel, that go contrary to the faid charter, are to be excommu<nicated by the bishops: and the archbishops of Canterbury and York are bound to compel the other bishops to denounce fentence accordingly, in cafe of ⚫ their remiffness, or neglect:' which certainly hath relation to the state, rather than to the church; fince there was never any neceffity of compelling the bishops to denounce fentence in their own cafe, though frequently in the people's. 25 Edw. 1. chap. 4.

Thirdly, That the great charter, and charter of the foreft, be holden and kept in all points: and if any ftatute be made to the contrary, that it shall be • holden for nought.' 43 Edw. 3. 1. Upon which Coke, that famous English lawyer, faid, That albeit judgments in the king's courts are of high regard in law, and judicia are accounted as juris dicta; yet it is provided by the act of parliament, That if any judgment be given contrary to any of the points of the great charter, it shall be holden for nought.' He farther faith, upon the ftatute of 25 Edw. I. chap. 1. That this great charter, and the charter of forest, are properly the common law of the land, or the law common to all the people thereof.' Fourthly, Another ftatute runs thus: If any force come to disturb the execution of the common law,

• ye

ye fhall cause their bodies to be arrested, and put in prifon ye fhall deny no man right by the king's letters, nor counfel the king any thing that may turn to his damage or difherifon.' 18 Edw. 3. chap. 7. Neither to deny right by any command under the great or little feal.' This is the judges charge and oath, 2 Edw. 3. chap. 8. 14 Edw. 3. 14. II Rich. 2. chap. 10.

Fifthly, Such care hath been taken for the prefervation of this great charter, that in the 25th of Edw. 1. it was enacted, That commiffioners fhould iffue forth, that there fhould be chofen in every fhirecourt, by the commonalty of the fame fhire, three 'fubftantial men, knights, or other lawful, wife, and 'well-difpofed perfons, to be juftices, which fhall be affigned by the king's letters patents, under the great feal, to hear and determine (without any other writ but only their commiffion) fuch plaints as fhall be ⚫ made upon all thofe that commit, or offend against any point contained in the aforefaid charters." Edw. 1. chap. I.

21

Sixthly, The neceffity of preferving these charters, hath appeared in nothing more than in the care they have taken to confirm them; which, as Coke observes,

have been by thirty-two parliaments confirmed, eftablished, and commanded to be put in execution, ' with the condign punishment they had inflicted upon 'the offenders.' Coke's proem to the fecond book of his Inftitutes.

Seventhly, That in the notable petition of right, many of these great privileges, and free customs, contained in the aforefaid charters, and other good laws, are recited and confirmed. 3 Car. I.

Eighthly, The late king, in his declaration at Newmarket, 1641, acknowledged the law to be the rule of his power:' by which he doubtless intended fundamental laws; fince it may be the great advantage of countries, fometimes to fufpend the execution of temporary laws.

VOL. I.

T

Having

Having fo manifeftly evidenced that venerable ef teem our ancestors had of that golden rule the GREAT CHARTER, with their deep folicitude to preserve it from the defacing of ufurpation and faction; we shall proceed to give an account of their juft refentment, and earneft profecution against fome of those, who in any age have adventured to undermine that ancient foundation, by introducing an arbitrary way of

vernment.

go

First, As judicious Lambard reports, in his Saxon tranflation, That the kings in those days, were by ⚫ their coronation oaths obliged to keep the ancient fundamental laws and cuftoms of this land (of which this great charter is but declaratory): fo did king Alfred (reputed the most famous compiler of laws amongst them) give this difcovery of his indignation againft his own judges, for acting contrary to those fundamental laws, that he commanded the • execution of forty of them.' Which may be a feafonable caveat to the judges of our times.

Secondly, Hubert de Burgo, once chief justice of England, having advised Edward the First, in the eleventh year of his reign (in his council holden at Oxford) to cancel this great charter, and that of the

foreft,' was juftly fentenced according to law, by his peers, in open parliament, when the ftatute, called CONFIRMATIONIS CHARTARUM, was made: in the first chapter thereof, magna charta is peculiarly called the common law. 25 Edw. 1. chap. 2.

Thirdly, The Spencers (both father and fon) for their arbitrary domination, and rash and evil counsel to Edward the Second, (by which he was feduced to break the great charter) were banished for their pains, as Coke relates.

Fourthly, The fame fate attended Trefilian and Belknap, for their illegal proceedings.

Fifthly, The breach of this great charter was the ground of that exemplary juftice done upon Empfon and Dudley, whofe cafe is very memorable in this point: for though they gratified Henry the Seventh in

what

what they did, and had an act of parliament for their warrant, made the eleventh of his reign, yet met with their due reward from the hands of juftice; that act being against equity and common reafon, and fo no juftifiable ground, or apology, for thofe frequent abuses, and the oppreffions of the people, they were found guilty of. Hear what the lord Coke farther faith concerning the matter, There was an act of parliament, made in the eleventh year of king Henry the Seventh, which had a fair flattering preamble, pretending to avoid divers mifchiefs, which were, ift, The high difpleasure of Almighty God. 2dly, The great let of the common law. And 3dly, 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 high difpleasure of Almighty God, and the great let, nay, the utter fubverfion, of the common law, and the great let of the wealth of this land, as hereafter fhall appear: the fubftance of which act follows in thefe words:

"That from henceforth, as well juftices of affize, "as juftices of the peace, in every county, upon "information for the king, before them made, "without any finding or prefentment by twelve "men, fhall have full power and authority, by "their difcretion, to hear and determine all "offences, as riots, unlawful affemblies, &c. "committed and done against any act or ftatute "made, and not repealed," &c. [A cafe that very much resembles this of our own times.]

<

By pretext of this law, Empfon and Dudley did ⚫ commit upon the fubjects unfufferable preffure and • oppreffion; and therefore this ftatute was juftly, foon after the decease of Henry the Seventh, repealed at • the next parliament after his decease, by the ftatute of the 1 Hen. 8. chap. 6.

A good caveat to parliaments, to leave all caufes to be measured by the golden and ftraight mete-wand of the law, and not by the uncertain and crooked cord of difcretion."