To prove this, what we say will be a main help to discover the arbitrary proceedings of the bench,
in their frequent menaces to the Jury: as if it were not so much their business to try, as to
condemn the prisoners; and that not so much for any fact they had committed, aw what the court
would have suggested to the Jury to have been their fact.
Sect. 1. It is the constant common law of England, "that no man should be taken, imprisoned,
amerced, disseised of his freehold, of his liberties, or free customs, but by the judgment of his
peers, which are vulgarly called a Jury, from jurare, because they are sworn to do right."
Sect. 2. The only assistance that is given the Jury, in order to reach a verdict is: first, the evidence
given of the fact committed by the person indicted.--Secondly, the knowledge of that law, act, or
Statute, that the indictment is grounded upon and which the prisoners are said to have
transgressed.
Sect. 3. We shall neglect to mention here how much they were deprived of that just advantage,
which the ancient, equal laws of England do allow; designing it for a conclusion of the whole, and
shall only speak here to the matter of fact and law.
Sect. 4. The evidence you have read in the trial; the utmost import of which is no more than this,
that William Penn was speaKing in Grace-Church Street to an assembly of people, but they knew
not what he said. Which is so great a contradiction, as he that runs may read it; for no man call
say another man preaches, and yet understand not what he saith. He may conjecture it, but that is
a lame evidence in law. It might as well have been sworn, that he was speaking of law, physic,
trade, or any other matter of civil government. Besides there is no law against preaching what is
truth whether it be in the street, or in any other place. Nor is it possible that any man can truly
swear, that he preached sedition, heresy, &c. unless he so heard him, that he could tell what he
said.
Sect. 5. The evidence further saith, that W. Mead was there. But till being in Grace-Church Street
be a fault, and hearing a man speak the witness knows not what, be contrary to law, the whole
evidence is useless, and impertinent. But what they want of that, they endeavour to supply with
the indictment; whose parts we proceed to consider
EXCEPTIONS AGAINST THE INDICTMENT.
Sect. 6. It saith, that the prisoners "were met upon the 15th day of August, 1670." Whereas their
own evidence affirms it to be upon the 14th day of August, 1670.
Sect. 7. "That they met with force and arms." Which is so great a lie, that the court had no better
cover for it, than to tell the Jury it was only a piece of form; urging, that the man tried for clipping
of money this present session had the same words used in his indictment.
But that this answer is too scanty, as well as it was too weak to prevail with the Jury, we desire it
may be considered, that the same words may be used more of course, and out of form, at one
time, than at another. And though we grant they can have little force with any Jury in a clipper's
case, for mere clipping; yet they are words that give so just a ground of jealousy nay, that carry so
clear an evidence of illegality, where they are truly proved and affirmed of any meeting, as that
they are the proper roots from whence do spring those branches which render an indictment
terrible, and an assembly truly the terror of the people.
Sect. 8. "Unlawful, and tumultuously to disturb the peace." Which is as true as what is said before
(that is, as false.) This will evidently appear to all that consider how lawful it is to assemble, with
no other design than to worship God. And their calling a lawful assembly an unlawful one, no
more makes it so than to say light is darkness, black is white, concludes so impudent a falsity true.
In short, because to worship God can never be a crime, no meeting, or assembly, designing to
worship God, can be unlawful. Such as go about to prove an unlawful assembly, must prove these
assemblers' intent is not to worship God: but that no man can do, because no man can know
another man's intentions; and therefore it is impossible that any should prove such an assembly
unlawful. This is properly an unlawful assembly, according to the definition of the law, when
several persons are met together with design to use violence, and to do mischief: but that
Dissenters meet with no such intention, is manifest to the whole world; therefore their assemblies
are not unlawful. He that hath the only right to be worshiped, who is God, hath the only right to
institute how he will be worshiped: and such as worship him in that way they apprehend him to
have instituted, are so far from being unlawful assemblers, that therein they do but express their
duty they owe to God.
"Tumultuously." Imports as much as disorderly, or an assembly full of noise, bustle, and
confusion, using force and violence to the injury of persons, houses, or grounds. But whether
religious Dissenters, in their peaceable meetings, therein desiring and seeking nothing more than
to express that duty they owe to God Almighty, be guilty of a tumultuous action, or meeting, in
the sense expressed (and which is the very definition of the law) will be the question. Certainly,
such as call these meetings tumultuous, as to break the peace, offer the greatest violence to
common words that can well be imagined; for they may as rightly say, such persons meet
adulterously, thievishly, &c. as to affirm they meet tumultuously, because they are as truly
applicable. In snort, such particulars as are required to prove such meetings in law, are wholly
wanting.
Sect. 9. "To the disturbance of the peace." If the disturbance of the peace be but matter of form
with the rest, as is usually pleaded; leave out this matter of form, and then see what great matter
will be left.
Certainly such assemblies as are not to the breach and disturbance of the peace, are far from being
unlawful or tumultuary. But if the peace be broken by them, how comes it the evidence was so
short? We cannot believe it was in favour of the prisoners. This may shew to all the reasonable
world, how forward some are to brand innocency with hateful names, to bring a suspicion where
there was none deserved.
Sect. 10. "That the said Penn and Mead met by agreement beforehand made." But if persons that
never saw each other, nor conversed together, neither had correspondence by any other hand,
cannot be said to be agreed to any action before it be done; then the prisoners were far from an
agreement; for they had never seen, conversed; nor corresponded, directly, nor indirectly, before
the officers came to disturb the assembly. We well know how far they would have stretched the
word agreement, or conspiracy; but God, who brings to ought all the counsels of the wicked,
prevented their cruel designs.
Sect. 11. "That William Mead did abet the said William Penn in preaching." No man can be said to
abet another, whilst they are both unknown to each other; especially in this case, where abetting
follows agreeing, and agreeing supposes foreknowledge. Nay, the word abet in law, signifies to
command, procure, or counsel a person; which W. Mead could not be said to do, in reference to
W. Penn, they being so great strangers one to another, and at so great a distance: for the evidence
proves that he was with Lieutenant Cook; and Lieutenant Cook swears, he could not make his
way to W. Penn for the crowd.
Sect. 12. "That W. Penn's preaching and speaking caused a great concourse and tumult of people
to remain and continue a long time in the street." But this is so improbable to believe, that the
very nature of a tumult admits of no such thing as preaching; but implies a disorderly multitude,
where all may be said to speak, rather than any to hear.
Sect. 1. "In contempt of the King and his laws." They are so far from condemning the King and
his laws, that the are obliged and constrained by their own principles, to obey every ordinance of
man for the Lord's sake, "but not against the Lord for man's sake," which is the question in hand.
Besides, their continuance there was not in contempt, but by the permission of the chief officer
present, that came there by the King's authority. Nor is it for the honour of the King, that such
persons should be said to act in contempt of his laws, as only met to honour God and his laws.
Sect. 2. "And to the great disturbance of the King's peace." It is far from disturbing or breaking the King's peace, for men peaceably to meet to worship God: for it is then properly broken and invaded, when force and violence are used, to the hurt and prejudice of persons and estates; or when any thing is done that tends to the stirring up of sedition, and begetting in people a dislike of the civil government. But that such things are not practiced by us in our assemblies, either to offer violence to mens' persons and estates, or to stir up people to sedition, or dislike to the civil government, is obvious to all that visit our assemblies.
Sect. 3. "To the great terror and disturbance of the King's liege people and subjects, and to the
evil example of all others in the like case offending, against the King's peace, his crown and
dignity." Were these black criminations as true as they are wretchedly false, we should give as just
an occasion to lose our liberties, as our cruel adversaries are ready to take any to deprive us
unjustly of them. O! how notorious is it to all sober people, that our manner of life is far from
terrifying any: and how absurd to think, that naked men (in the generality of their conversation
known to be harmless and quiet) should prove a terror or disturbance to the people! certainly, if
any such thing should be in the time of our meeting, it is brought with the cruelty and barbarous
actions of your own soldiers: they never learned by our example to beat, hale before magistrates,
fine and imprison for matters relating to God's worship: neither can they say, we are their
precedents for all those adulterous, prodigal, lascivious, drunken, swearing, and profane acts, they
daily commit, and esteem rather occasion of brag and boast, than sorrow and repentance: no, they
need not go so far; they have too many (God Almighty knows) of their own superiors for their
example.
Sect. 4. But we can never pass over with silence, nor enough observe, the detestable juggle of
such indictments; which we require all English and conscientious men to mind, as they value
themselves on the like occasions. How little a grain of fact was proved, yet how spacious an
indictment was made; had it related to the evidence, the bulk had been excusable; but when it only
swelled with malicious scaring phrases, to suggest to the people that they were the merest villains,
the most dangerous persons, and designing mutually the subversion of the law, and breach of the
peace, to the terrifying of the people, &c. who can choose but to tell them of their romance
indictment, that is so forged, that it truly merits another against itself? This they childishly call
form. But had an Italian, or other stranger, been in Court, he would have judged it matter of fact,
as thinking it unworthy of a King's court, to accuse men in terms not legally, truly, or probably,
due to the fact they really had committed; as well as that no court would practice it, but that
which loved to deprive men of their liberties and lives, rather than to save them, nolens, volens.
Sect. 5. Had their cruelty and juggle ended itself here, they would have spared us the pains of any
farther observation. 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 ever part
of the of the idictment; 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 Grace-church Street, but not to an unlawful assembly, so circumstantiated: the
mention of which stabbed to the heart their design of molding 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 haereditas venit unicuique nostrum a jure, legibus, quam a 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, the 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, clothes, 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
legls, 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 fath, 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 seventy one 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 Lombard further 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 setvitus 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 OF ENGLAND
"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 the 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 contenments or freehold. And a merchant
likewise shall be amerced, saving to him his merchandise: 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 others 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 of its articles, for evermore shall be
steadfastly, 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 of royal
command, henceforth firmly will 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 of 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; and 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 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,
before mentioned, 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 sheriffs 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 henceforth 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 Archhishops 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 the holy church, and for the common profit of the realm, hath
granted, for him and his heirs forever, 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 pretense 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 hundreds of 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. Coke, 2 Inst. 3.
Neither shall any such freeman 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 a 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, lawlul 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 veritalis, (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 synonymous 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 25 Ed. 3. per legem terrae, imports no more
than a trial by due process, and writ original at common law; which cannot be without a Jury:
therefore per judicium parurn, & per legem terrae, 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 ihe 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.
Fourthly, they gave the Jury their charge in the prisoners absence, endeavouring highly to incense
the Jury against them.
Fifthly, the verdict being given (which is in law dictum veritatis, the voice of truth herself) being
not suitable to their humours, they did five times reject it, with many abusive, imperious, and
menacing expressions to the Jury, such as no precedent can afford us; as if they were not the only
constituted judges by the fundamental laws of the land, but mere cyphers, only to signify
something behind their figures.
Sixthly, though the prisoners were cleared by their Jury, yet were they detained for the
non-payment of their fines, laid upon them for not pulling off their hats; in which the law is
notoriously broken.
1st. In that no man shall be amerced, but according to the offence; and they were fined each forty
marks.
2d. They were not amerced by any Jury, but at the will of an incensed bench.
Besides, there is no law against the hat; and where there is no law, there can be no transgression, and consequently no legal amercement, or fine, 9 Hen. 3. chap. 14. But how the prisoners were trepanned into it, is most ridiculous on the side of the contrivers; who, finding their hats off, would have them put on again by their officers, to fool the prisoners with a trial of putting them off again: which childish conceit not being gratified, they fined them forty marks apiece.
Seventhly, instead of accepting their verdict as good in law, and for the true decision of the matter, according to their great Charter, (that constitutes them proper judges, and which bears them out, with many other good laws, in what they agree to as a verdict) the court did most illegally and tyrannically fine and imprison them, as in the trial was expressed; and that notwithstanding the late just resentment of the House of Commons in judge Keeling's case(1), where they resolved, that the precedents and practice of fining and imprisoning of Juries for their verdicts, were illegal. And here we must needs observe two things:
First, that the fundamental laws of England cannot be more slighted, and contradicted in any thing
(next to Englishmen's being quite destroyed) than in not suffering them to have that equal
medium, or just way of trial, that the same law has provided, which is by a Jury.
Secondly, that the late proceeding of the Court at the Old Bailey, is an evident demonstration,
that Juries are now but mere formality, and that the partial charge of the bench must be the verdict
of the Jury: for if ever a rape were attempted on the conscience of any Jury, it was there. And
indeed, the ignorance of jurors of their authority by law, is the only reason of their unhappy
cringing to the court, and being scared into an anti-conscience verdict by their lawless threats.
But we have lived to an age so deboist from all humanity and reason, as well as faith and religion,
that some stick not to turn butchers to their own privileges, and conspirators against their own
liberties. For however Magna Carta had once the reputation of a sacred, unalterable law, and few
were hardened enough to incur and bear the long curse that attends the violators of it, yet it is
frequently objected now, that the benefits there designed are but temporary, and therefore liable
to alteration, as other statutes are. What game such persons play at may be lively read in the
attempts of Dionysius, Phalaris, &c. which would have will and power be the people's law.
But that the privileges due to Englishmen by the great Charter of England, have their foundation
in reason and law; and that those new Cassandrian ways to introduce will and power, deserve to
be detested by all persons professing sense and honesty, and the least allegiance to our English
government, we shall make appear from a sober consideration of the nature oft hose privileges
contained in that Charter.
1. The ground of alteration of any law in government, where there is no invasion, should arise
from the universal discommodity of its continuance: but there can be no disprofit in the
continuance of liberty and property; therefore there can he no just ground of alteration.
2. No one Englishman is born a slave to another, neither has the one a right to inherit the sweat
and benefit of the other's labour, without consent; therefore the liberty and property of an
Englishman cannot reasonably be at the will and beck of another, let his quality and rank be ever
so great.
3. There can be nothing more unreasonable than that which is partial: but to take away the
LIBERTY and PROPERTY of any (which are natural rights) without breaking the law of nature
(and not of will and power) is manifestly partial, and therefore unreasonable.
4. If it be just and reasonable "for men to do as they would be done by;" then no sort of men
should invade the liberties and properties of other men; because they would not be served so
themselves.
5. Where liberty and property are destroyed, there must always be a state of force and war: which
however pleasing it may be unto the invaders, it will seem intolerable by the invaded; who will no
longer remain subject, in all human probability, than while they want as much power to free
themselves, as their adversaries had to inslave them. The troubles, hazards, ill consequences, and
illegality of such attempts, as they have been declined by the most prudent in all ages, so have they
proved most uneasy to the most savage of all nations; who first or last have by a mighty torrent
freed themselves, to the due punishment and great infamy of their oppressors: such being the
advantage, such the disadvantage, which necessarily do attend the fixation, and removal, of liberty
and property.
We shall proceed to make it appear, that Magna Carta, as recited by us, imports nothing less than
their preservation.
"No freeman shall be taken, or imprisoned, or be disseised of his freeholds, or liberties, or free
customs, or be outlawed, or exiled, or any other ways destroyed; nor will we upon him pass, nor
condemn him but by the lawful judgment of his peers," &c.
"A freeman shall not be amerced for a small fault, but after the manner of the fault; and for a great
fault, after the greatness thereof: and none of the said amercements shall be assessed, but by the
oath of good and lawful men of the vicinage."
First, it asserts Englishmen to be free: that is liberty.
Secondly, that they have freeholds: that is property.
Thirdly, That amercement, or penalties, should be proportioned to the faults committed: which is
equity.
Fourthly, That they shall lose neither, but when they are adjudged to have forfeited them in the
judgment of their honest neighbours, according to the law of the land: which is lawful judgment.
It is easy to discern to what pass the enemies of the great Charter would bring the people of
England.
First, they are now freemen: but they would have them slaves.
Secondly, they have now right unto their wives, children, and estates: but such would rob and spoil them of all.
Thirdly, now no man is to be amerced, or punished, but suitably to the fault: whilst they would
make it suitably to their revengeful minds, and unlimited wills.
Fourthly, Whereas the power of judgment lies in the breasts and consciences of twelve honest
neighbours; they would have it at the discretion of mercenary judges. To which we cannot choose
but add, that such discourses manifestly strike at this present constitution of government; for it
being founded upon the great Charter(which is the ancient common law of the land) as upon its
best foundation, none can design the cancelling the Charter, but they must necessarily 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 sovereign balsam which cured our former breaches, so doubtless will the continuation of it
prove an excellent prevention to any future disturbances.
But some are ready to object, that the great Charter consisting as well of religious as civil rights,
the former having received an alteration, there is the same reason why the latter may have the like.
To which we answer, that the reason of alteration cannot be the same; therefore the consequence
is false. The one being matter of opinion about faith and religious worship, which is as various as
the unconstant apprehensions of men; but the other is matter of so immutable right and justice,
that all generations (however differing in their religious opinions) have concentered and agreed to
the certainty, equity, and indispensable necessity of preserving these fundamental laws; so that
Magna Carta hath not risen and fallen with the differing religious opinions that have been in this
land, but hath ever remained as the stable 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 first reformation (as must needs be suggested by this
objection) our case 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 first reformers; and, probably, an
unseen consequence by the objectors to their idle opinion.
In short, there is no time in which any man may plead the necessity of such an action as is unjust
in its own nature; which he must 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
consequently, no person may legally attempt the subversion, or extenuation, of the force of the
great Charter. We shall proceed to prove from instances out of both.
First, "Any judgment given contrary to the said Charter, is to be undone and holden for nought."
25 Edw. i. chap. 2.
Secondly, "Any, by word, deed, or counsel, that go contrary to the said Charter, are to be
excommunicated by the bishops: and the archbishops of Canterbury and York are bound to
compel the other bishops to denounce sentence accordingly in case of their remissness, or neglect:
which certainly hath relation to the state, rather than to the church; since there was never any
necessity of compelling the bishops to denounce sentence in their own case, though frequently in
the people's. 25 Edw. 1. chap. 4.
Thirdly, "That the great Charter, and Charter of the forest, be holden and kept in all points, and if
any statute be made to the contrary, that it shall be holden for nought." 43 Edw. 3.1. Upon which
Coke, that famous English lawyer, said, "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 saith, upon the statute of 25 Edw. 1. 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 statute runs thus: "If any force come to disturb the execution of the common
law, ye shall cause their bodies to be arrested, and put in prison: ye shall deny no man's rights 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. 4 Edw. 3. 14. 11 Rich. 2.chap. 10.
Fifthly, Such care hath been taken for the preservation of this great Charter, that in the 25th of
Edw. 1. it was enacted, "That commissioners 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 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 any point
contained in the aforesaid Charters." 21 Edw. 1. 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, "have been by thirty-two parliaments
confirmed, established, 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. 1.
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, sometimes to suspend 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 some of those, who in any age have adventured to uudermine 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 Carta is peculiarly called the common 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 soweth no justifiable ground, or apology, for those frequent abuses, and the
oppressions of the people, they were found guilty of it. Hear what the Lord Coke further 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 mischiefs, which
were, 1st, 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 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. (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 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 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 sitjustum. 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 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 Bloodworth, being conscious to himself of his partial kindness to the popish Friars,
hopes to make all 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
worshiping 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 liberty 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 merely 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 the
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 perverted 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.
If the recorder has spoke for no more than himself, it is well; but certainly, he little deserves to be
thought a Protestant, and a lawyer, that puts both Reformation and law into the Inquisition. And
doubtless the supreme governors of the land are highly obliged, in honour and conscience, (in
discharge of their trust to God and the people) to take these things into their serious
consideration, as what is expected from them, by those who earnestly wish theirs and the
kingdom's safety and prosperity.
1.