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vation. But that which we have to add on the prisoners behalf, renders their actions so abominable in the sight of justice, that all honest and ingenuous hearts must needs abhor their base snares.
They tell the jury, That being but judges of fact only, they were to bring the prisoners in guilty (that is, of the fact) at their peril; and it was the part of the bench to judge what was law.' So that if the jury had brought them in guilty, without farther additional explanation (though intentionally they meant only of the fact proved by evidence) yet the bench would have extended it to every part of the indictment; and by this impious delusion have perjured a well-meaning jury, and have had their barbarous ends upon the innocent prisoners. But the jury, better understanding themselves, brought in William Penn guilty of the fact proved, namely, That he was speaking to some people met in Gracechurch-street, but not to an unlawful assembly, so circumstantiated:' the mention of which stabbed to the heart their design of moulding the general answer of guilty to their own ends. Nor indeed could they do otherwise; for as well the jury, as prisoners, were denied to have any law produced, by which they might measure the truth of the indictment, and guilt of the fact. But because the recorder would not or could not (perhaps it is so long since he read law, that he may have forgotten it) we shall perform his part, in shewing what is that common law of the land,' which, in general, he said they were indicted for the breach of, and which indeed, if rightly understood, is the undoubted birth-right of every Englishman; yes, the inheritance of inheritances; Major hæreditas venit unicuique nostrum à jure, & legibus, quam à parentibus. Coke Instit. 2. 56.
Sect. 6. All the various kinds or models of government that are in the world, stand either upon will and power, or condition and contract; the first rule by men; the second, by laws. It is our happiness to be born under such a constitution, as is most abhorrent in itself of all arbitrary government; and which is, and ever has been, most choice and careful of her laws, by which all right is preserved.
Sect, 7. All laws are either fundamental, and so immutable; or superficial, and so alterable. By the first, we understand such laws as enjoin men to be just, honest, virtuous; to do no wrong, to kill, rob, deceive, prejudice none; but to do as one would be done unto; to cherish good, and to terrify wicked men; in short, universal reason; which are not subject to any revolution, because no emergency, time or occasion, can ever justify a suspension of their execution, much less their utter abrogation."
Sect. 8. By superficial laws, we understand such acts, laws, or statutes, as are suited to present occurrences; and which may as well be abrogated for the good of the kingdom, as they were first made for it. For instance, those statutes that relate to victuals, cloaths, and places of trade, &c. which have ever stood whilst the reason of them was in force; but when that benefit, which once redounded, fell by cross occurrences, they ended; according to that old maxim, Cessante ratione legis, cessat lex. But this cannot be said of fundamental laws,till houses stand without their foundations, and Englishmen wholly cease to be;' which brings close upon the point.
Sect. 9. There is not any country that has more constantly expressed her care and deep solicitude for the preservation of her fundamental laws, than the English nation: and though at particular times some evil persons have endeavoured an utter abolition of those excellent fundamentals, which we have before defined and defended from any just reason of revolution; yet God Almighty, who is always concerned to avenge the cause of justice, and those excellent good laws by which it is upheld, has by his providence befooled their contrivances, and baffled their attempts, by bringing their designs to nought, and their persons frequently to condign punishment and disgrace: their age no antiquary living can assure us; unless they say, 'As old as reason itself:' but our own authors are not lacking to inform us, that the liberties, properties, and privileges of the English nation, are very ancient.
Sect. 10. For Hern, in his 'Mirror of Justice,' (written in Edward the First's time) fol. 1. tells us, That after God had abated the nobility of the Britons, he did deliver the realm to men more humble and simple, of the countries adjoining, to wit, the Saxons, which came from the parts of Almaign to conquer this land, of which men there were forty sovereigns, which did rule as companions; and those princes did call this realm England, which before was named the Greater Britain. Those, after great wars, tribulation and pains, by long time suffered, did choose a king to reign over them, to govern the people of God, and to maintain and defend their persons and their goods in quiet, by the rules of right; and at the beginning they did cause him to swear to maintain the holy Christian faith, and to guide his people by right, with all his power, without respect of persons, and to observe the laws. And after, when the kingdom was turned into an heritage, king Alfred, that governed this kingdom about an hundred and seventyone years before the conquest, did cause the great men of the kingdom to assemble at London, and there did ordain
for a perpetual usage, that twice in the year, or oftener, if need should be, in time of peace, they should assemble at London in parliament, for the government of God's people, that men might live in quiet, and receive right by certain usages and holy judgments.
In which parliament (said our author) the rights and prerogatives of the kings and subjects are distinguished and set apart and particularly by him expressed, too tedious here to insert; amongst which ordinances we find, That no man should be imprisoned, but for a capital offence. And if a man should detain another in prison by colour of right (where there was none) till the party imprisoned died, he that kept him in prison should be held guilty of murder, as you may read, p. 33, and 36. He is declared guilty of homicide, by whom a man shall die in prison, whether it be the judges, that shall too long delay to do a man right, or by cruelty of jailers, or suffering him to die by famine; or when a man is adjudged to do penance, and shall be surcharged by his jailer with irons, or other pain, whereof he is deprived of his life.' And p. 149. That by the ancient law of England, it was felony to detain a man in prison, after sufficient bail offered, where the party was appealed of treason, murder, robbery, or burglary.' Page 35. None ought to be put in common prisons, but only such as were attainted, or principally appealed, or indicted, of false or wrongful imprisonment; so tender have the ancient laws and constitutions of this realm been, of the liberty of their subjects' persons, that no man ought to be imprisoned but for a capital offence, as treason, murder, robbery, or burglary.'
Sect. 11. Nor is Lambard short, in his excellent translation of the Saxon laws, from king Ina's time, 712, to Hen. 3. 1100. in describing to us the great obligation, and strong condition the people were wont to put upon their kings, To observe the ancient fundamental laws, and free customs of this land,' which were handed down from one age to another. And in the 17th chap. of king Edward the Confessor's laws, the mention there made of a king's duty, is very remarkable, that if he brake his oath, or performed not his obligation, Nec nomen regis in eo constabit. The same Lambard farther tells us, 'that however any may affirm William of Normandy to be a conqueror, he was received by the people as Edward's successor, and, by solemn oath taken, to maintain unto them the same laws that his kinsman Edward the Confessor did.' This doctrine remained in the general unquestioned to the reign of king John; who imperiously thought that voluntas regis, and not salus populi, was suprema lex; or the king's will, and not
the people's preservation, was the supreme law; till the incensed barons of that time betook themselves to a vigorous defence of their ancient rights and liberties, and learned him to keep those laws, by a due restraint and timely compulsion, which his former invasion of them evidenced to the world he would never have done willingly.
Sect. 12. The proposals and articles of agreement, with the pledges given to the barons, on the behalf of the people, by the king, were confirmed in Henry the Third's time, his son and successor; when the abused, slighted, and disregarded law by his father, was thought fit to be reduced to record, that the people of England might not for ever after be to seek for a written recorded law, to their defence and security for Misera servitus est ubi jus est vagum aut incognitum. And so we enter upon the grand charter of liberty and privilege, in the cause, reason, and end of it.
Sect. 13. We shall first rehearse it, so far as we are concerned, (with the formalities of grant and curse) and shall then say something as to the cause, reason, and end of it.
A rehearsal of the material parts of the Great Charter
HENRY, by the grace of God, king of England, &c. to all archbishops, or earls, barons, sheriffs, provosts, officers, and to all bailiffs, and our faithful subjects who shall see this present charter, greeting. Know ye, that we, unto the honour of Almighty God, and for the salvation of the souls of our progenitors, and our successors, kings of England, to the advancement of holy church; and amendment of our realm, of our mere and free will, have given and granted to all archbishops, &c. and to all freemen of this our realm, those liberties underwritten, to be holden and kept in this our realm of England for evermore.
We have granted and given to all freemen of our realm, for us and our heirs, for evermore, those liberties underwritten, to have and to hold to them and to their heirs, of us and our heirs fore-named.
A freeman shall not be amerced for a small fault, but after the quantity of the fault: and for a great fault, after the manner thereof; saving to him his contenements or freehold. And a merchant likewise shall be amerced, saving to him his merchandize: and none of the said amercements shall be assessed, but by the oath of good and honest men of the vicinage.
No freeman shall be taken, or imprisoned, nor be disseised of his freehold, or liberties, or free customs, or be outlawed or exiled, or any other ways destroyed; nor we shall not
pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land: we shall sell to no man, we shall deny nor defer to no man, either justice or right.
And all these customs and liberties aforesaid, which we have granted to be holden within this our realm, as much as appertaineth to us, and our heirs, we shall observe; and all men of this our realm, as well spiritual as temporal, as much as in them is, shall observe the same against all persons in like wise. And for this our gift and grant of those liberties, and for other contained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and others our subjects, have given unto us the fifteenth part of their moveables and we have granted unto them, on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken and if any thing be procured by any person contrary to the premises, it shall be held of no force or effect. These being witnesses, Boniface archbishop of Canterbury, &c. we ratifying and approving those gifts and grants aforesaid, confirm and make strong all the same, for us and our heirs perpetually, and by the tenor of these presents do renew the same willingly; and granting for us and our heirs, that this charter, in all and singular its articles, for evermore shall be stedfastly, firmly, and inviolably observed. And if any article in the same charter contained, yet hitherto peradventure hath not been observed, nor kept, we will, and by our authority royal command, henceforth firmly they be observed. Witness, &c.
The Sentence of the Curse given by the bishops, with the king's consent, against the breakers of the Great Charter.
In the year of our Lord 1253, the third day of May, in the Great Hall of the king at Westminster, in the presence, and by the consent, of the lord Henry, by the grace of God king of England, and the lord Richard, earl of Cornwall, his brother; Roger Bigot, earl of Norfolk, marshal of England; Humphry, earl of Hereford; Henry, earl of Oxford; John, earl Warren; and other estates of the realm of England: We Boniface, by the mercy of God, archbishop of Canterbury, primate of England; F. of London; H. of Ely; S. of Worcester; E. of Lincoln; W. of Norwich; P. of Hereford; W. of Salisbury; W. of Durham; R. of Exeter; M. of Carlisle; W. of Bath; E. of Rochester; T. of St. Davids, bishops, apparelled in pontificals, with taper burning, against the breakers of the church's liberties, and of the liberties and other customs of this realm of