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by which he doubtless intended fundamnental laws; since it may be the great advantage of countries, sometimes to sus. pend the execution of temporary laws. .
Having so manifestly evidenced that venerable esteem 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 sonie 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 indignation 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 coinmon law. 25 Edw. 1. 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 justifiable ground, or apology, for those frequent abuses, and the oppressions of the people, they were found
Hear what the lord Coke farther saith 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 miss chiefs, 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 purview of that act tended in the execution contrary, ex diametro, viz. to the high displeasure of Almighty God, and the great let, nay, the utter subversion, of the common law, and the great let of the wealth of this land, as hereafter shall appear: the substance of which act follows in these words: * That from henceforth, as well justices of assize, as jus
tices 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. [A case that very much resembles this of our own times.]
By pretext of this law, Empson and Dudley did commit upon the subjects unsufferable pressure and oppression ; and therefore this statute was justly, soon after the decease of Henry the Seventh, repealed at the next parliament after his decease, by the statute of the 1 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 maxim or fundamental law of this realm is altered (as elsewhere hath been observed) what dangerous inconveniences do follow; which most expressly appeared 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 oppressions and exactions, grinding the faces of the poor subjects by penal laws (be they never so obsolete, or unfit for the time) by information only, without any presentment, or trial by jury, being the ancient birth-right of the subject; but to hear and determine 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 instruments, 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 have recited, and shewed the just inconveniences thereof; to the
end that the like should never hereafter he 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 erilus perhorrescant.
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; discretion ought to be thus described, Discretio est discernere per legem quid sit justum.' 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
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 inconsistently 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 restringe 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 transgressors; and that kings themselves (though enriched by those courses) have with great compunction and repentance 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 slip 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, no jury, for many ages, received so many instances of displeasure and affront, because they preferred not the humour of the court before the quiet of their own consciences, even to be esteemed as perjured; though they had really been so, had they not done what they did.
2. Their treatment of the prisoners was not more unchristian than inhuman. History can scarce tell us of one heathen Roman, that ever was so ignoble to his captive. What! to accuse, and not hear them ; to threaten to bore their tongues, gag and stop their mouths, fetter their legs, merely for defending themselves, and that by the ancient fundamental laws of England too? O barbarous ! Had they been Turks and infidels, that carriage would have ill become a Christian court; such actions proving much stronger dissuasives, than arguments to convince them how much the Christian religion inclines men to justice and moderation, above their dark idolatry. It is truly lamentable, that such occasion should be given for intelligence to foreign parts, where England hath had the reputation of a Christian country, by their ill treating of its sober and religious inhabitants, for their conscientious meetings to worship God. But, above all, Dissenters had little reason to have expected this boorish fierceness from the mayor of London, when they consider his eager prosecution of the king's party, under Cromwell's government, as thinking he could never give too great a testimony of his loyalty to that new instrument: which makes the old saying true, " That one renegade is worse than three Turks.'
Alderman Bludworth, being conscious to himself of his partial kindness to the popish friars, hopes to make an amends, by his zealous persecution of the poor dissenters: for at the same sessions he moved to have an evidence (of no small quality) against Harrison, the mendicant friar, sent to Bridewell and whipped, he was earnest to have the jury fined and imprisoned, because they brought not the prisoners in guilty, when no crime was proved against them, but peaceably worshipping their God. Whence it may be easy to observe, that popish friars, and prelatical persecutors, are mere confederates.
But what others have only adventured to stammer at, the recorder of London has been so ingenuous as to speak most plainly; or else, what mean those two fatal expressions, which are become the talk and terror of both city and country?
First, In assuring the jury, "That there would be a law
next sessions of parliament, that no man should have the protection of the law, but such as conformed to the church.' Which, should it be true, as we hope it is false, (and a dishonourable prophecy of that great assembly) the Papists may live to see their Marian days outdone by professed Protestants.
But surely no Englishman can be so sottish, as to conceive that his right to liberi.y and property came in with his profession of the Protestant religion ! Or that his natural and human rights are dependent on certain religious apprehensions : and consequently he must esteem it a cruelty in the abstract, that persons should be denied the benefit of those laws which relate to civil concerns, who by their deportment in civil affairs have no way transgressed them, but nerely upon an opinion of faith, and matter of conscience.
It is well known that liberty and property, trade and commerce, were in the world long before ihe points in difference betwixt Protestants and Dissenters, as the common privileges of mankind; and therefore not to be measured out by a conformity to this or the other religious persuasion, but purely as Englishmen.
Secondly, But we should rather choose to esteem this an expression of heat in the recorder, than that we could believe a London's recorder should say an English parliament should impose so much slavery on the present age, and entail it upon their own posterity (who, for aught they know, may be reckoned among the Dissenters of the next age) did he not encourage us to believe it was both his desire and his judgment, from that deliberate eulogy he made on the Spanish inquisition, expressing himself much to this purpose, viz. • Till now, I never understood the reason of the policy and prudence of the Spaniards, in suffering the inquisition among them : and certainly it will never be well with us, till something like unto the Spanish inquisition be in England.' The gross malignity of which saying is almost inexpressible. What does this but justify that hellish design of the Papists, to have prevented the first reformation If this be good doctrine, then Hoggestrant, the grand inquisitor, was a more venerable person than Luther the reformer. It was an expression that had better become Cajetan, the pope's legate, than Howel, a protestant city's recorder. This is so far from helping to convert the Spaniard, that it is the way to harden him in his idolatry, when his abominable cruelty shall be esteemed prudence, and his most barbarous and exquisite torturing of Truth, an excellent way to prevent faction.