England's present interest discover'd with honour to the prince and safety to the people in answer to this one question, What is most fit ... at this juncture of affairs to be done for composing ... the heat of contrary interests & making them subservient to the interest of the government, and consistent with the prosperity of the kingdom? : presented and submitted to the consideration of superiours.

3. The People have an Influence upon, and a great Share in that Judicatory Power. &c.

That it was a Brittish Custom, I will not affirm, but have some Reason to suppose; for if the Saxons had brought it with them, they would also have lest it behind them, and in all likelyhood there would have been some Footsteps in Saxony of such a Law or Custom which we find not. I will not enter the Lists with any about it; This shall suffice, that we find it early among the Saxons in this Country; and if they, a free People in their own Country, setling them∣selves here as a new planted Colony, did supply what was defective in their own Government, or add some new

Freedom to themselves, as all Planters are wont to do; which are as those first and Corner Stones, their Posterity with all Care and Skill are to build upon, that will serve my turn, to prove it a Fundamental; that is, such a first Prin∣ciple in our English Government, by the Agreement of the People diffusively, that it ought not to be violated: I would not be understood of the Number, but of the Way of Tryal; that is to say, that Men were not to be condemned but by the Votes of the Freemen. N. Bacon thinks that in ruder times the multitude tryed all among themselves; and fancyes it came from Graecians, that determin'd Controversies by the Suffrage of 34 or the major part of them. Be it as it will, Juries the Saxons had; for in the Laws of King Aetheldred, about 300 Years before the Entrance of the Norman Duke, we * 1.1 find enacted, in singulis Centuriis, &c. thus Englisht, In every Hundred let there be a Court, and let twelve An∣cient Free-men, together with the Lord of the Hundred be sworn, that they will not condemn the Innocent, or acquit the Guilty: And so strict were they of those Ages in observing this fundamental Way of Judicature, that Alfred put one of his Judges to Death for passing Sentence upon a Verdict corruptly obtain'd, upon the Votes of the Jurors, three of twelve being in the Negative: If the Number was so sacred, what was the Constitution it self? The very same King ex∣ecuted another of his Judges for passing Sentence of Death upon an Ignoramus return'd by the Jury; and a third for condemning a Man upon an Inquest taken ex officio, when as the Delinquent had not put himself upon their Tryal. More of his Justice might be mention'd even in this very Case.

There was also a Law made in the time of Aetheldred, * 1.2 when the Brittains and Saxons began to grow tame to each other, and intercommon amicably, that saith, Let there be Twelve men of Understanding, &c. six English and six Welsh, and let them deal Justice, both to English and Welch.

Also in those simpler times, If a Crime extended but to * 1.3 some shameful Pennace, as Pillary or Whipping (the last whereof as usual as it may be with us, was inflicted only

upon their Bond-men) then might the Pennance be reduc'd to a Ransom, according to the Nature of the Fault; but it must be so assest in the Presence of the Judge, and by the Twelve, that is the Jury of Friling••, or Free-men.

Hitherto Stories tell us of Tryals by Juries, and those to have consisted in general Terms of Free-men, but PER PARES came after, occasion'd by the considerable Saxons, neglecting that Service, and leaving it to the inferior People (who lost the Bench, their ancient Right, because they were not thought Company for a Judge or Sherif) And from the growing Pride of the Danes, who slighted such a Rural Ju∣dicature, and despised the Fellowship of the mean Saxon Free-men in publick Service; for the wise Saxon King per∣ceiving the Dangerous Consequence of submitting the Lives and Liberties of the Inferiour (but not less useful People) to the Dictates of any such superb Humour; and on the other hand, of subjecting the Nobler Sort to the Suffrage of the Inferior Rank, with the Advice of his Wittagenmote provides a third Way, most Equal and Grateful, and by Agreement with Gunthurne the Dane, setled the Law of Peers, or Equals; which is the Envy of Nations, but the famous Priviledge of our English People, one of those three Pillars the Fabrick of this ancient and Free Government stands upon.

This Benefit gets Strength by Time, and is receiv'd by the Norman-Duke and his Successors; and not only con∣firm'd in the lump of other Priviledges, but in one notable Case for all, that might be brought to prove, that the fun∣damental Priviledges mention'd in the Great Charter, 9. Hen. 3. were before it. The Story is more at large deliver'd by our Learned Selden; But thus; The Norman Duke having * 1.4 given his half Brother Odo, a large Territory in Kent, with the Earldom; and he taking Advantage at the King's being * 1.5 displeased with the Arch-Bishop of Canterbury, to posses him∣self of some of the Lands of that See: Landfrank that suc∣ceeded the Arch-Bishop, inform'd hereof, petition'd the King for Justice secundum legem terrae, according to the Law of the Land; upon which the King summon'd a County-Court,

the Debate lasted three Dayes before the Free-men of Kent in the Presence of Lords and Bishops, and others skilful in the Law, and the Judgment passed for the Arch-Bishop UPON THE VOTES OF THE FREE-MEN.

By all which it is (I hope) sufficiently and inoffensively manifested, that these three Principles:

1. English men have individually the alone Right of Pos∣session and Disposition of what they have.

2. That they are Parties to the Laws of their Country, for the Maintenance of that great and just Law.

3. That they have an Influence upon, and a real Share in the Judicatory Power, that shall apply those Laws made, have been the ancient Rights of the Kingdom, and common Basis of the Government; that which Kings under the se∣veral Revolutions have sworn to maintain, and History affords us so many Presidents to confirm; So that the Great Charter made in the 9th of Henry the 3d, was not the Nativity, but Restoration of ancient Priviledges from Cap∣tivity; No Grant of New Rights, but a New Grant, or Confirmation rather of Ancient Laws & Liberties, violated by King John, and gain'd by his Successor, at the Expence of a long and bloody War, which shew'd them as resolute to keep, as their Ancestors had been careful to enact those excellent Laws.

And so I am come to the Great Charter, which is com∣prehensive and repetitious of what I have already been dis∣coursing, and which I shall briefly touch upon with those successive Statutes that have been made in Honour and Preservation of it.

I shall rehearse so much of it as falls within the Conside∣ration of the foregoing Matter, which is a great deal in a little; with something of the Formality of Grant and Curse, that this Age may see, with what Reverence and Circumspection our Ancestors govern'd themselves in Con∣firming and Preserving it.

Henry, by the Grace of God King of England, &c. * 2.1

To all Arch-Bishops, Earls, Barons, Sheriffs, Pro∣voses,

Officers, unto all Bailifs, 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 Pro∣genitors, and our Successors, Kings of England, to the Advancement of Holy Church, and A∣mendment of our Realm, of our meer and free Will have given and granted to all Arch-Bishops, &c. and to all Free-men of this our Realm, these Liberties underwritten, to be holden and kept in this our Realm of England for evermore.

Though in Honour to the King, it is said to be out of his meer and free Will, yet the Qualification of the Persons, he is said to grant the ensuing Liberties to, shew, that they are Terms of Formality, viz. To all Free-men of this Realm; for they must be free, because of these Laws and Liberties, since 'twas impossible they could be any Thing but Slaves without them; Consequently, this was not an Infranchising, but confirming to Free-men their just Privi∣ledges. The Words of the Charter are these:

* 2.2A Free-man shall not be amerced for a small Fault, but after the Quantity of the Fault; and for a great Fault, after the Manner thereof, sa∣ving to him his Contenements or Freehold: And a Merchant likewise shall be amerced, saving to him his Merchandize; and none of the said A∣mercements shall be assessed, but by the Oath of good and honest Men of the Vicinage.

* 2.3No Free-man shall be taken or imprison'd, nor be disseized of his free hold or Liberties, or free Cu∣stoms, or be outlaw'd or exiled, or any other wayes 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, or defer to no Man either Justice or Right.

I stand amazed, how any Man can have the Confidence to say, These Priviledges were extorted by the Barons Wars, when the King declares, that what he did herein, was freely or that they were New Priviledges, when the very Tenour of the Words prove the contrary; for Freehold, Liberties, or Free Customs are by the Charter it self supposed to be in the Possession of the Free-men at the making and publish∣ing thereof. No Free-man shall be taken or imprison'd; then he is free; this Liberty is his Right. Again, No Free-man shall be disseized of his Freehold, Liberties, or free Customs; then certainly he was in Possession of them. And that great Father in the Laws of England, Chief Justice Cook in his Proaem to the 2d Part of his Institutes, tells us, * 2.4 that th••se Laws and Liberties were gather'd and observ'd amongst others in an intire Volumn by King Edward the Con∣fessor, confirmed by William, sirnamed the Conqueror; which were afterwards ratified by Henry the first; enlar∣ged by Henry the second, in his Constitutions at Clarendon, and after much Contest and Blood split between King John and the Barons concerning them, were solemnly established at running-Mead near Stanes; and lastly, brought to their former Station, and publish'd by this King Henry the third, in the 9th Year of his Reign; And though Evil Counsellors would have provoakt him to void his Father's Act and his own, as if the first had been the Effect of Force, the other of Non-Age; yet it so pleased Almighty God, who hath ever been propitious to this Ungrateful Island, that in the 20th Year of his Reign, he did confirm and compleat this Charter, for a perpetual Establishment of Liberty to all free-born English Men and their Heirs forever, ordaining, Quod contravenientes per Dominum Regem cum convicti fuerint, graviter puniantur. i. e. but whosoever should act any Thing contrary to these Laws, upon Conviction should be grievously punished by our Lord the King. And in the 22 Year of his Reign, it was confirmed by the Statute of

Marleb. c. 5. and so venerable an Esteem have our Ancestors had for this great Charter and indispensibly necessary have * 2.5 they thought it to their own and Posterities Felicity, that it hath been above 30 Times ratified, and commanded under great Penalties, to be put in Execution.

Here are the 3 Fundamentals comprehended & exprest, to have been the Rights and Priviledges of English Men.

1. Ownershp, consisting of Liberty and Property, in that it supposes English Men to be Free, there's Liberty; next, that they have Freeholds; there's Property.

2. That they have the Voting of their own Law; for that was an ancient free Custom, as I have already prov'd; and all such Costoms are expresly confirmed by this great Charter; Besides, the People helpt to make it.

3. An Influence upon, and a real Share in the Judicatory Power, in the Execution and Application of Law.

This is a substantial Part, thrice provided for in those sixteen Lines of the great Charter by us rehears'd: 1. That no Amercement shall be assessed, but by the Oath of good and honest Men of the Vicinage. 2. Nor we shall not pass upon him, nor condemn him, but by Lawful Judgment of his Peers. 3. Or by the Law of the Land, which is Synonymous, or a Saying of equal Signification with Lawful Judgment of Peers; for Law of the Land, and Lawful Judgment of Peers, are the Proprium quarto modo, or essential Qualities of these Chapters of our great Charter, being communi∣cable, Omni soli & semper, to all and every Clause thereof alike. Chief Justice Cook well observes, that per legem * 2.6 terrae, or by the Law of the Land, imports no more then a Tryal by Proces, and Writ original at common Law, which cannot be without the Lawful Judgment of Equals, or a common Jury; therefore per legale Judicium parium, by the Lawful Judgment of Peers, and per legem terrae, by the Law of the Land, plainly signifie the same Priviledge to the People: So that it is the Judgment of the Free-men of England, which gives the Cast, and turns the Scale of En∣glish Justice.

These Things being so evidently prov'd by long Use and several Laws, to have been the first Principles or

Fundamentals to the English free Government; I take leave to propose this Question; May the free People of England be justly disseized of all or any of these fundamental Principles, without their Individual Consent?

Answ. With Submission to better Skill, I conceive, Not; for which I shall produce first my Reasons; then Authorities.

1. Through the Brittish, Saxon and Norman Times, the People of this Island have been reputed and call'd Free-men by Kings, Parliaments, Records and Histories; and as a Son supposes a Father, so Free-men suppose Free∣dom. This Qualification imports a supream Right, such a Right as beyond which there is none on Earth to disfree them, or deprive them of it; therefore an unalterable fun∣damental Part of the Government.

2. It can never be thought, that they intrusted any Legislators with this Capital Priviledge further then to use their best Skill to secure and maintain it, that is, so far as they were a Part of the English Government; they never delegated or impower'd any Men, that de jure they could deprive them of that Qualification? and a Facto ad Jus non valet Argumentum, for the Question is not, What May be done? but what Ought to be done? Overseers and Stewards are impower'd, not to alienate, but preserve and improve other Mens Inheritances. No Owners deliver their Ship and Goods into any Man's Hands to give away, or run upon a Rock; neither do they consign their Affairs to Agents or Factors without Limitation. All Trusts suppose such a Fundamental Right in them for whom the Trusts are, as is altogether indissolvable by the Trustees: The Trust is the Liberty and Property of the People; the Limitation is, that it should not be invaded, but inviolably preserved according to the Law of the Land.

3. If Salus Populi be suprema lex; the Safety of the Peo∣ple the highest Law, as say several of our ancient famous Lawyers and Law-Books; then since the aforesaid Rights are as the Sinnews of this free Body politique, or that sove∣raign Cordial without which this free People must needs

consume and pine away into utter Bondage; it follows, they are the highest Law, and therefore ought to be a Rule and Limit to all subsequent Legislation.

4. The Estate goes before the Steward, the Foundation before the House, People before their Representatives, and the Creator before the Creature. The Steward lives by preserving the Estate; the House stands by Reason of its Foundation; the Representative depends upon the People, and the Creature subsists by the Power of its Cre∣ator. Every Representative in the World, is as the Cre∣ature of the People; for the People make them, and to them they owe their Being: Here is no Transessentiating or Transubstantiating of Being from People to Represen∣tative, no more then there is an absolute transferring of a Title in a Letter of Atorney; The very Term Represen∣tative is enough to the contrary: Wherefore as the House cannot stand without its Foundation, nor the Creature sub∣sist without its Creator; so can there be No Representative without a People, nor that People free, which all along is intended (as inherent to, and inseparable from the English People) without Freedom; nor can there be any Freedom without something be Fundamental. In short, I would fain know of any Man, how the Branches can cut up the Root of the Tree that bears them? How any Representa∣tive that is not only a meer Trust to preserve Fundamentals, the Peoples Inheritance; but, that is a Representative, that makes Laws, by Virtue of this Fundamental Law, that the People hath a Power in Legislation (the 2d Principle prov'd by me) can have Power to remove or destroy that Fundamental? The Fundamental makes the People free, this free People make a Representative; Can this Creature unqualifie its Creator? What Spring ever rose higher then its Head? The Representative is at best but a true Copy, an Exemplification; the free People are the Original, not cancellable by a Transcript: And if that Fundamental that gives to the People a Power of Legislation, be not annullable by that Representative, because it makes it what it is; much less can that Representative disseize Men of their Liberty and Property, the first Great Fundamental,

that is the Parent of this other, which intitles to a Share in making Laws for the Preservation of the first inviolably. Nor is the third other then the necessary Production of the two first, to intercept Arbitrary Designs, and make Power le∣gal; for where the People have not a Share in Judgment, that is, in the Application, as well as making of the Law; the other two are imperfect, open to daily Invasion, should it be our Infelicity to have a violent Prince: for as Property is every day expos'd, where those that have it are destitute of Power to hedge it about by Law-making; so those that have both, if they have not the Application of the Law, but the Creatures of another Part of the Government, how easily is that Hedge broken down? And indeed, as it is a most just and necessary, as well as ancient and honourable Custom, so it is the Princes Interest; for still the People are concern'd in the Inconveniencies with him, and he is freed from the Temptation of doing arbitrary Things, and their Importunities, that might else have some Pretence for such Adresses, as well as from the Mischiefs that might * 2.7 ensue such Actions. It might be enough to say, that here are above 50 Statutes now in Print, beside its venerable Anti∣quity, that warrant and confirm this Legale judicium parium suorum, or the Tryal of English Men by their Equals.

But I shall hint at a few Instances: The first is, The Earl of Lancaster in the 14th of Edw. 2. adjudged to dye with∣out Lawful Tryal of his Peers, and afterwards Henry Earl of Lancaster his Brother, was restored: the Reasons given were two; 1. Because the said Thomas was not arraign'd and put to Answer; 2. That he was put to Death without Answer, or Lawful Judgment of his Peers. The like Proceedings were in the Case of John of Gaunt, p. 39. coram Rege. And in the Earl of Arundel's Case, Rot. Parl. 4 Edw. 3. n. 13. And in Sr. John Alce's Case, 4 Edw. 3. n. 2. Such was the Destruction committed on the ••d. Hastings in the Tower of London by Richard the 3d. But above all, that Attainder of Thomas Cromwel, Earl of Essex, who was attainted of high Treason, as appears Rot. Parl, 32. Hen. 8. of which saith Chief Justice Cook, as I remem∣ber, Let Oblivion take away the Memory of so foul a

Fact, if it can; if not, however, let Silence cover it. 'Tis true, there was a Statute obtained in the 11th of Henry the 7th, in Defiance of the Great Charter, which authoriz'd several Exactions contrary to the free Customs of this Realm; particularly in the Case of Juries, both sessing and punishing by Justices of Assize and of the Peace, without the fining and Presentment of 12 Free-men; Empson and Dudley were the great Actors of those Oppressions, but they were hang'd for their Pains, and that illegal Statute repealed in the 1st of Henry the 8th c. 6. The Conse∣quence is plain; That Fundamentals give Rule to Acts of Parliament, else why was the Statute of the 8th Edw. 4. c. 2. of Liveries and Information by the Discretion of the Judges to stand as an Original; and this of the 11th of Henry the 7th repealed as illegal? for, therefore any Thing is unlawful, because it transgresseth a Law: But what Law can an Act of Parliament transgress, but that which is Fundamental? Therefore Tryal by Juries or Lawful Judgment of Equals, is by Acts of Parliament confest to be a Fundamental Part of our Government: And because Chief Justice Cook is generally esteem'd a great Oracle of Law, I shall in its proper Place present you with his Judgment upon the whole Matter.

5. These Fundamentals are unalterable by a Represen∣tative, which were the Result and Agreement of English Free-men individually, the ancienter Times not being ac∣quainted with Representatives; for then the Free-men met in their own Persons: In all the Saxons Story we find no Mention of any such Thing; for it was the King, Lords and Free-men, the Elders and People; and at the Counsel of Winton, in 855. is reported to have been present the Great Men of the Kingdom, and an INFINIT MULTI∣TUDE * 2.8 of other faithful People. Also that of King Ina, the common Council of the Elders & PEOPLE of the WHOLE Kingdom. It is not to be doubted but this continued after the Norman Times; and that at Running Mead by Sta••••s the Freemen of England were personally present at the Con∣firmation of that great Charter, in the Reign of King John.

But as the Ages grew more human, with respect to Vil∣lains and Retainers, and the Number of Free-men encreased, there was a Necessity for a Representative, especially, since Fundamentals were long ago agreed upon, and those Ca∣pital Priviledges put out of the Reach and Power of any litle Number of Men to endanger: And so careful were their Representatives in the time of Edward the Third, of * 2.9 suffering their Liberties and free Customs to be infring'd, that in Matters of extraordinary Weight they would not deter∣min, till they had first return'd and conferr'd with their se∣veral Counties or Burroughs that delegated them.

Notes

• * 1.1

  Ll. Sax. Lam ann. 675.
• * 1.2

  Ll. Etheld c. 3. Lamb.
• * 1.3

  Ll. Inae. Ll. Canut.
• * 1.4

  Spicil. 197.
• * 1.5

  S••igand.
• * 2.1

  9th. Hen. 3.
• * 2.2

  Ch. 14.
• * 2.3

  Ch. 29.
• * 2.4

  Cook, Pro∣aem. Instit. part. 2.
• * 2.5

  52. Hen. 3. Stat. Marleb.
• * 2.6

  Cook on c. 4. of 52. E. 3. Inst. 2. p. 50.
• * 2.7

  5. Ed. 3. c. ••. 25. Ed. 3. c. 4. 17. R. c. 6. Rot. Parl. 42. Ed. 3. c. 3. Cook, 2. Inst. 43. Stamf. pl. cor. p. 150.
• * 2.8

  ••••. Sax. Lam. Concil. Brit. 219. Ingulph.
• * 2.9

  Rot. Parl. 13. Ed 3. n. 8. Cook, 4. Inst. fol. 14. n. 34.