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< ye shall cause their bodies to be arrested, and put in
prison : ye shall deny no man right by the king's letters, nor counsel the king any thing that may turn to his damage or disherison. 18 Edw. 3. chap. 7. Neither to deny right by any command " under the great or little seal. This is the judges charge and oath, 2 Edw. 3. chap. 8. 14 Edw. 3. 14. i Rich. 2. chap. 1o.
Fifthly, Such care hath been taken for the preservation of this great charter, that in the 25th of Edw, 1. it was enacted, "That coinmissioners should issue " forth, that there should be chosen in every shire
court, by the commonalty of the same shire, three < substantial men, knights, or other lawful, wise, and r well-disposed persons, to be justices, which shall be
assigned by the king's letters patents, under the great seal, to hear and determine (without any other writ but only their commission) such plaints as shall be " made upon all those that commit, or offend against rany point contained in the aforesaid charters.' 21 Edw. i. chap. 1. · Sixthly, The necessity of preserving these charters, hath appeared in nothing more than in the care they have taken to confirm them; which, as Coke observes, I have been by thirty-two parliaments confirmed, esta
blished, and commanded to be put in execution, ( with the condign punishment they had inflicted upon " the offenders.' Coke's proem to the second book of his Institutes.
Seventhly, That in the notable petition of right, many of these great privileges, and free customs, contained in the aforesaid 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; since it may be the great advantage of countries, fornetimes to suspend the execution of temporary laws. Vol. I.
Having so manifestly evidenced that venerable efteem our ancestors had of that golden rule the GREAT CHARTER, with their deep solicitude to preserve it from the defacing of usurpation and faction; we shall proceed to give an account of their just resentment, and earnest prosecution against some of those, who in any age have adventured to undermine that ancient foundation, by introducing an arbitrary way of government.
First, As judicious Lambard reports, in his Saxon translation, That the kings in those days, were by
their coronation oaths obliged to keep the ancient
fundamental laws and customs of this land (of ( which this great charter is but declaratory): so did • king Alfred (reputed the most famous compiler of
laws amongst them) give this discovery of his in<dignation against his own judges, for acting contrary ( to those fundamental laws, that he commanded the ( execution of forty of them. Which may be a seasonable 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
forest, was justly sentenced according to law, by his peers, in open parliament, when the statute, called CONFIRMATIONIS CHARTARUM, was made: in the first chapter thereof, magna charta is peculiarly called the common law. 25 Edw. I. chap. 2.
Thirdly, The Spencers (both father and son) for their arbitrary domination, and rash and evil counsel to Edward the Second, (by which he was seduced to break the great charter) were banished for their pains, as Coke relates.
Fourthly, The same fate attended Tresilian and Belknap, for their illegal proceedings.
Fifthly, The breach of this great charter was the ground of that exemplary justice done upon Empson and Dudley, whose case is very memorable in this point: for though they gratified Henry the Seventh in
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 justice; that act being against equity and common reason, and so no juftifiable ground, or apology, for those frequent abuses, and the oppressions 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, s pretending to avoid divers mischiefs, which were,
ist, The high displeasure of Almighty God. 2dly, "The great let of the common law. And 3dly, The « great let of the wealth of this land. And the pur( view of that act tended in the execution contrary, sex diametro, viz. to the high displeasure of Almighty
God, and the great let, nay, the utter subversion, I of the common law, and the great let of the wealth r of this land, as hereafter shall appear: the substance
of which act follows in these words: « That from henceforth, as weil justices of assize,
“ as justices of the peace, in every county, upon « information for the king, before them made, " without any finding or presentment by twelve “ men, shall have full power and authority, by
their discretion, to hear and determine all « offences, as riots, unlawful assemblies, &c. " committed and done against any, act or statute « made, and not repealed,” &c. FA case that
very much resembles this of our own times.] , . By pretext of this law, Empion and Dudley did I commit upon the subjects unfufferable pressure and i oppreffion; and therefore this statute was justly, foon
after the decease of Henry the Seventh, repealed at the next parliament after his decease, by the statute of the i Hen. 8. chap. 6. "A good caveat to parliaments, to leave all causes to be measured by the golden and straight mete-wand of the law, and not by the uncertain and crooked cord of discretion.'
. It is almost incredible to foresee, when any max. im or fundamental law of this realm is altered (as " elsewhere hath been observed) what dangerous in
conveniences do follow; which most expressly appear
eth by this most unjust and strange act of the eleventh < of Henry the Seventh, for hereby not only Empson
and Dudley themselves, but such justices of the peace (corrupt men) as they caused to be authorized, committed most grievous and heavy oppref
fions and exactions, grinding the faces of the poor < subjects by penal laws (be they never so absolute, or cunfit for the time) by information only, without rany presentment, or trial by jury, being the ancient
birth-right of the subject; but to hear and deterrmine the same by their discretions, inflicting such
penalty, as the statute not repealed imposed. These, and other like oppressions and exactions by, or by the means of, Empson and Dudley, and their in
ftruments, brought infinite treasure to the king's ( coffers; whereof the king himself, at the end, with
great grief and compunction, repented, as in another "place we have observed.
This statute of the 11th of Henry the Seventh we s have recited, and shewed the juft inconveniences I thereof; to the end that the like should never here
after be attempted in any court of parliament; and " that others might avoid the fearful end of those two ( time-servers, Empson and Dudley, Qui eorum vestigiis insistant, eorum exitus perhorrefcant. ? See the statute of 8 Edw. 4. chap. 2. A statute of liveries, an information, &c. by the discretion of the judges, to stand as an original, &c. this act is deservedly repealed, vide 12 R. 2. chap. 13.
Punishment by discretion, &c. vide 5th of H. 4. < chap. 6. 8. See the commission of sewers; discrertion ought to be thus described, Discretio eft difcer
nere per legem quid fit juftum. From whence three things seem most remarkable :
First, The great equity and justice of the great charter, with the high value our ancestors have most deservedly set upon it. . Secondly, The dreadful malediction, or curse, they have denounced upon the breakers of it, with those exemplary punishments they have not spared to inflict upon such notorious offenders,
Thirdly, so heinous a thing was it esteemed of old, to endeavour an enervation, or subversion, of these ancient rights and privileges, that acts of parliament themselves (otherwise the most sacred with the people) have not been of force enough to secure or defend such persons from condign punishment, who, in pursuance of them, have acted inconsistent with our great charter. Therefore it is, that the great lawyer, the lord Coke, doth more than once aggravate the example of Empson and Dudley (with persons of the same rank) into a just caution, as well to parliaments as . judges, justices, and inferior magistrates, to decline making or executing any act, that may in the least seem to infringe upon or confine this so often avowed and confirmed great charter of the liberties of England; since parliaments are said to err, when they cross it; the obeyers of their acts punished, as time-serving transgreffors; and that kings themselves (though enriched by those courses) have met with great compunction and repentance, and left among their dying words their recantations.
Therefore most notable and true it was, with which we shall conclude this present subject, what the king pleased to observe in a speech to the parliament, about 1662. viz. · The good old rules of law are our best " security.
The manner of the court's behaviour towards the prisoners and the jury, with their many extravagant expressions, must not altogether Nip our observation.
1. Their carriage to the jury outdoes all precedents; they entertained them more like a pack of felons, than a jury of honest men, as being fitter to be tried themselves, than to acquit others. In short,