England; and namely, those that are contained in the charter of the common liberties of England, and charter of the forest, have denounced sentence of excommunication in this form: By the authority of Almighty God the Father, the Son, and the Holy Ghost, &c. of the blessed apostles Peter and Paul, and of all apostles, and of all martyrs, of blessed Edward, king of England, and of all the saints of heaven, we excommunicate and accurse, and from the benefit of our holy mother the church we sequester, all those that hereafter willingly and maliciously deprive or spoil the church of her right; and all those that by any craft, or willingness, do violate, break, or diminish, or change the church's liberties, and free customs contained in the charter of the common liberties, and of the forest, granted by our lord the king to archbishops, bishops, and other prelates of England, and likewise to the earls, barons, knights, and other freeholders of the realm; and all that secretly and openly, by deed, word, or counsel, do make statutes, or observe them being made, and that bring in customs, or keep them when they be brought in, against the said liberties, or any of them; and all those that shall presume to judge against them; and all and every such person, beforementioned, that wittingly shall commit any thing of the premises, let them well know that they incur the aforesaid sentence, ipso facto.

A Confirmation of the Charters and Liberties of England, and of the forest, made the twenty-fifth year of Edward the First.

EDWARD, by the grace of God, king of England, lord of Ireland, duke of Guyan, to all those that these present letters shall hear or see, greeting. Know ye, that we, to the honour of God, and to the profit of our realm, have granted, for us and our heirs, that the charter of liberties, and the charter of the forest, which were made by common assent of all the realm in the time of king Henry our father, shall be kept in every point, without breach: and we will that the same charter shall be sent under our seal, as well to our justices of the forest, as to others, and to all sheriff's of shires, and to all our other officers, and to all our cities throughout the realm, together with our writs, in the which it shall be contained, that they cause the aforesaid charters to be published, and to declare to the people that we have confirmed them in all points; and that our justices, sheriffs, mayors, and other ministers, which under us have laws of our land to guide, shall allow the same charters pleaded before them in all their points; that is to wit, the great

charter, as the common law, and the charter of our forest, for the wealth of our realm.

And we will, that if any judgment be given from hence. forth contrary to the points of the charter aforesaid, by the justices, or by any other of our ministers that hold plea before them, against the points of the charter, it shall be undone, and holden for nought.

And we will that the same charter shall be sent under our seal to cathedral churches throughout our realm, there to remain; and shall be read before the people two times by the year.

And that all archbishops and bishops shall pronounce the sentence of excommunication against all those, that by word, deed, or counsel, do contrary to the aforesaid charters, or that in any point do break or undo them; and that the said curses be twice a year denounced and published by the prelates aforesaid: and if the same prelates, or any of them be remiss in the denunciation of the said sentences, the archbishops of Canterbury and York for the time being shall compel and distrain them to the execution of their duties in form aforesaid.

The Sentence of the Clergy, against the breakers of the articles above-mentioned.

In the name of the Father, the Son, and the Holy Ghost, Amen. Whereas our sovereign lord the king, to the honour of God, and of holy church, and for the common profit of the realm, hath granted, for him and his heirs for ever, these articles above written. Robert, archbishop of Canterbury, primate of all England, admonished all his province once, twice, and thrice, because that shortness will not suffer so much delay, as to give knowledge to all the people of England of these presents in writing: we therefore enjoin all persons, of what estate soever they be, that they, and every of them, as much as in them is, shall uphold and maintain these articles, granted by our sovereign lord the king, in all points: and all those that in any point do resist or break, or in any manner hereafter procure, counsel, or in any wise assent to resist or break those ordinances, or go about it, by word or deed, openly or privily, by any manner of pretence or colour; we, the aforesaid archbishops, by our authority in this writing expressed, do excommunicate and accurse, and from the body of our Lord Jesus Christ, and from all the company of heaven, and from all the sacraments of holy church, do sequester and exclude.

We may here see, that in the obscurest times of sottish popery, they were not left without a sense of justice, and

the necessity of liberty and property, to be inviolably enjoyed; which brings us to the cause of it.

First, The cause of this famous charter was, as we have already said, the incroachments that were made by several ministers of precedent kings, that almost became customary, and which had near extinguished the free customs due to Englishmen. How great care it cost our ancestors, it unbecomes us to ignore, or by our silence to neglect : it was that yoke and muzzle which failed not to disable many raging bears from entering the pleasant vineyard of English freedoms, that otherwise would not have left a fruitful vine in being. Anon we may give the reader an account of some, with their wages as well as works.

Secondly, The reason of it is so great, that it seems to be its own. It is the very image and expression of justice, liberty and property; points of such eminent importance, as without which no government can be said to be reasonable, but arbitrary and tyrannical. It allows every man that liberty God and nature have given him, and the secure possession of his property, from the inroad or invasion of his neighbour, or any else of that constitution. It justifies no man in a fault; only it provides equal and just ways to have the offender tried, considering the malice of many persecutors, and the great value of liberty and life.

Thirdly, The end of it was the most noble of any earthly projection; to wit, 'The refixing of those shaken laws,' held for many hundred years by constant claim, that the living might be re-instated in their primitive liberty, and their posterity secured in the possession of so great happiness.

Amongst those many rich advantages that accrue to the free people of England from this great charter, and those many confirmatory statutes of the same, we shall present the reader with a sight of some few, that may most properly fall under the consideration and enquiry of these present times, as found in our common law books.

First, [That every Englishman is born free.]

Secondly, [That no such freeman shall be taken, attached assessed, or imprisoned, by any petition or suggestion to the king or his council, unless by the indictment and presentment of good and lawful men, where such right as needs be done.] 5 Edw. 3. ch. 9. 25 Ed. 3. ch. 4. 17 Rich. 2. ch. 6. Rot. Parl. 42 Ed. 3. Coke, 2 Inst. 43.

Thirdly, [That no such freeman shall be disseised of his freehold, or liberties, or free customs, &c.] Hereby is intended, saith Coke, that lands, tenements, goods and chattels, shall not be seised into the king's hands, contrary to this great charter, &c. 43 Ass. pag. 12. 43 Ed. 3.

VOL. I.

Coke, 2 Inst. 32. Neither shall any such free man be put from his livelihood without answer. Coke, 2 Inst. 47.

Fourthly, [That no freeman shall be outlawed] unless he shroud and hide himself voluntarily from the justice of the law, 2 & 3 Phil. & Mar. Dier. 114, 145.

Fifthly, [No freeman shall be exiled.] Coke said, there are but two grounds upon which any man may be exiled; one by act of parliament (supposing it not contrary to the great charter)—the other, in case of abjuration, for felony by the common law, &c. Coke, Inst. 2. 47.

Sixthly, [No freeman shall be destroyed; that is, he shall not be fore-judged of life, limb, disherited, or put to torture, or death.] Every oppression against law, by colour of any usurped authority, is a kind of destruction; and it is the worst oppression that is done by colour of justice. Coke, Inst. 2. 48.

Seventhly, [That no freeman shall be thus taken, or imprisoned, disseised, outlawed, exiled, or be destroyed of his liberties, freeholds, and free customs, but BY THE LAWFUL JUDGMENT OF HIS PEERS, vulgarly called jury. So that the judgment of any fact or person is, by this fundamental law, referred to the breasts and consciences of the jury. It is rendered in latin per legale judicium; that is, lawful judgment: from whence it is to be observed, that the judgment must have law in it, and be according to law; which cannot be, where they are not judges how far the fact is legal, or the contrary; judicium, quasi juris dictum [the voice of law and right.] And therefore is their verdict not to be rejected, because it is supposed to be the truth, according to their consciences for verdict, from quasi dictum veritatis, [or a true saying or judgment] 9 Hen. 3. 26. Coke's Inst. 1. 32. Inst. 4. 207. Coke says, that by the word LEGALE, three things are implied.

1st. That this was by law, before the statute; and therefore this statute but declaratory of the ancient law. 2d. That their verdict must be legally given: wherein is to be observed, 1st. The jury ought to hear no evidence, but in the hearing and presence of the prisoner. 2d. That they cannot send to ask any question in law of the judges, but in the presence of the prisoner: for, de facto jus oritur.

3d. The evidence produced by the king's counsel being given, the judges cannot collect the evidence, nor urge it by way of charge to the jury, nor yet confer with the jury, about the evidence, but in the presence of the prisoner, Coke's Inst. 2. 49.

Eighthly, or by the law of the land. It is a synony

mous expression, importing no more than by the trial of peers, or a jury:' for it is sometimes rendered not (or) disjuctively, but (and) which is connectively. However, it can never signify any thing contrary to the old way of trying by peers; for then it would be connected to a contradiction.

Besides, Coke well observes, That in the 4th chap. of the 25 Ed. 3. per legem terræ, 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 terræ, signify the same privilege unto the people, Coke, Inst. 2. p. 50.

Thus have we presented you with some 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 spacious root, that so many fruitful branches of the law of England spring, if Coke may be credited. But how sacred soever they have been esteemed, and still are by noble and just minds, yet so degenerate are some in their proceedings, that, conscious to themselves of their baseness, they will not dare stand 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 wise companions, in their late sessions at the Old Bailey, upon the occasion of the prisoners.

First, The prisoners were taken, and imprisoned, without presentment 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 prisoners, jury, and the whole assembly in the dark.

Thirdly, They refused the prisoners to plead, and directly withstood that great privilege, mentioned in the first chap. 25 Ed. 1. where all justices, mayors, sheriffs, and other ministers, that have the laws of the land to guide them, are required to allow the said charter to be pleaded in all its points, and in all cases that shall come before them in judgment for no sooner did William Penn, or his fellow-prisoner, 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 refusal the recorder can never deliver himself, unless it be by avowing, the laws are not his guide, and therefore he does not suffer them to be pleaded before him in judgment.