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binetof the law, and to allow the law only to king it among the people; and that the people themselves [by their representatives] shall be the only keepers of their own liberties, by authority derived from their own supreme and sovereign power, established in law and common surety: Which brings me now to the stile of our commissions, Custodies libertatis Angliiz authoritate parliamenti.
And, touching the King of England's right to rule, or title of law, by inheritance and descent, to the crown of England, thus much may be safely and truly said: That, if it be an ancient and original inheritance fixed in any one family, it was gained at first by the power of the sword, and by conquest; which title, in law, is but a disseisin, and an unlawful title, and therefore may be again as justly regained, as it was gained at first by force, and by the stronger arm and sharper sword. And, as it was so gained at first, so it hath been ever since, either by the like pure force, or else by consent of parliament, upon particular cases, kept and continued; and so you will find, if you look, how every King, since the Norman William (called the Conqueror) came to the crown: For, of all those five-and-twenty Kings and Queens, which have since that time kinged it among us, there are but seven of them, who could pretend legally to succeed their former predecessors, either by lineal or collateral title. I have not leisure to repeat the particulars; and this, I have said, may serve to give you occasion (if you be so minded) to look further into it, and to satisfy your judgments herein, and, by consequence, to keep you from engaging against yourselves, and the nation, for a name, or for a thing, which is not truth.
And now I come to that, which is our true business, our work of the first magnitude, opus did in die suo, the articles of your charge, which I intend (for the better helping of your memories) to deliver to you in writing, with the laws and the punishments; and briefly to run over the rehearsal of the facts only, without further mention concerning them; yet with such necessary expositions and explanations of particulars, as shall be needful in my passage through them; adding only this for an animadversion to you, that you and I are trusted, at this time, with the administration of justice in our own country, amidst all the temptations, which our several relations of friends, kindred, or acquaintance, can offer unto us; which shews, that they, who do so trust us, have great assurance and confidence in us; and then we must conclude, that this confidence puts a greater obligation upon us to fidelity and integrity in the discharge and performance of that trust committed to us. Add to this that vinculum animce, the bond of the soul, the obligation of an oath, and I doubt not but it will be found, that, though love, fear, and particular interest be the usual cords which halter justice, yet, at this time, they will be found to be, among us, but sorry and unmasculine pieces of rhetorick, either to affright us from, or soften us in our duties.
The matter of your charge will be to enquire into, and find out the several offences, which have been committed and done against the politick body of the commonwealth, as so many several diseases and infirmities in the several parts of the natural body of a man, which distemper and endanger the health of the whole; and they are of four sorts.
First, Such as are against the peace of the commonwealth, or whereby publick peace is disturbed; and those I call diseases endangering the heart of this politick body.
Secondly, Such as are against the justice of the commonwealth, or whereby publick justice is perverted; and those I call diseases endangering the head of this politick body.
Thirdly, Such as are against the plenty of the commonwealth, or whereby publick plenty is diminished; and those I call diseases offendi ng the stomach of this politick body.
Fourthly, Such as are against the beauty and good complexion of the commonwealth, or whereby this beauty and good complexion is discoloured and defaced, contained under the name and title of common nusances; and those I call diseases offending the outward senses of this politick body.
Touching those against peace, they are of five sorts.
1. Treasons; which, again, are either high treason or petty treason.
2. Felonies; which, again, are done either against the publick, or against the particular person, or possession, of another,
High treasons are these. 1. If any levy war against the supreme authority of the nation, or adhere to the enemies thereof. And, when I do so express it, supreme authority, I give you the meaning of the Stat. 25 E. III. 2. which mentions it thus: 'If any levy war against the King, or adhere to the King's enemies within the realm.' For the name and word King (quatemts the chief officer is trusted with the government in the administration of that government) is frequently used to set forth the publick interest of the people; so we call it the King's peace, the King's coin, the King's highway, and the like: All which, in truth, are the publick concernments of the people, being for their publick use and benefit, and are therefore expressed and exhibited unto us under the notion of the King's name, because he is theirpublick officer, and trusted for them. So that to levy war against the King, or to adhere to the King's enemies, is to levy war against the kingdom, and the government of it, and the supreme power and authority of it; or, which is more plain in the expression, to levy war without lawful warrant and authority so to do. And yet this, I believe, was that which hath misled (and, perhaps, may still mislead) many of our countrymen: That,'because they had the person of the King with them (betwixt whom and whom there were mutual and reciprocal deceivings) and they (never remembering, that, when in person he deserted the parliament, he left the King and kingly authority behind him, because he left the kingly office, and the power thereof, and publick government behind him) they catched at the shadow, and let go the substance; and so, under colour of fighting for the King, they fought against him. Yet, because omnis non capit hoc, every man did not understand this distinction betwixt the politick and natural body of the King,therefore see how mercifully and favourably the parliament hath dealt with these men, that they have not pressed the rigour of the law upon the offenders of this kind; whose offences being high-treason by the fundamental justice of this nation, and so their lives and whole estates, lands, and goods, being forfeited by the law for the same, yet this forfeiture hath not been exacted upon them; but, in hope they will at last see their errors, and repent for their misdoings, the parliament hath been pleased to carry a more tender hand, and, by way of commutation, to pass over their offences with the punishment of a small fine for such misdoings, yet with this silent admonition, like that to the woman in the gospel, 'Go thy way, and sin no more, lest a worse thing happen unto thee.'
2. If any counterfeit the great seal, privy seal, or privy signet. 3. If any counterfeit the coin of the nation, or otherwise clip, or diminish it.
4. If any kill a judge, or justice of oyer and terminer, in his place, doing his office.
5. If any Jesuit, or seminary priest, born in England, and ordained and professed beyond sea, by authority derived from the see of Rome, do come into, or abide within this realm.
6. If any the second time extol, defend, or maintain, within this realm, the usurped jurisdiction, or authority of the Pope, or any other foreign prince.
7. If any bring over and put inure, or receive from beyond sea any bull, or instrument of absolution, or reconciliation, to absolve the people of this nation from their allegiance here to the see of Rome; or endeavour the second time to withdraw the people to the obedience of the see of Rome; or, if any be absolved, reconciled, or withdrawn. And here you must understand, that, in treasons, actors and consenters are principals, and there are no accessaries at all in treason.
Petty treasons are these.
If a servant kill his or her master or mistress.
Premunire. Touching premunire, it is, properly, a writ, or process of summons, awarded against such as brought in bulls, or citations from the court of Rome, to obtain ecclesiastical benefices, by way of provision, before they fell void; for, of old time, divers acts of parliament were made, viz. in the times of King Edward the Third, King Richard the Second, and King Henry the Fourth, against the Pope's exercise of jurisdiction within this nation, and against those subjects that did appeal, from the courts of justice here, to the court of'Rome; and who obtained provisions there, to have abbies and priories, or benefices with cure, here; which proceedings tended (say those statutes) to the destruction of the realm, and of religion. Therefore, these being held to be great offences, and so tending to the disherison of the rights belonging to the crown and the people of England, and to the destruction of the common law, are made to be grievously punishable, viz. To be imprisoned during life, toforfeit lands and goods, and to be put out of the protection of the law. Afterward other later laws were made in the time of Queen Elisabeth, against other offences of like nature, wherewith we have now to do; namely,
If any send over, or contribute money, or relief, for maintenance of any Jesuit, or seminary priest, or college beyond sea.
If any extol, defend, or maintain the jurisdiction or authority of the Pope (or of any other foreign prince) within this nation.
If any bring over any agnus Dei, crosses, pictures, or beads, hallowed (as they call it) at Rome, to disperse among the people, or if any person receive any such, or know of this offence, and conceal it three days.
If any do aid, or assist those, who put in ure any Pope's bulls, or initruments of absolution brought from Rome.
Misprision of treason are these. If any know another to be guilty of high-treason, and do conceal it. If any forge or counterfeit foreign coin, not current here. If any utter counterfeit coin, knowing it to be such. If any strike, or draw a sword, to strike a justice, sitting in place of judgment.
Felonies against the person of another are these.
If any commit homicide, viz. kill or slay another. If, out of precedent malice, expressed or implied, it is murthcr.
If, upon a sudden falling out, it is manslaughter. If in doing a lawful action, it is called chance-medley, misadventure, or misfortune.
If in his own defence, it is so stiled, homicide se defendendum, and so also poisoning, stabbing, and bewitching to death are homicides.
If any commit a rape, viz. have the carnal knowledge of a woman against her will, or with her will, if she be under ten years old.
If any take away, or consent, or assist to take away any maid, widow, or wife, against her will, she being then interested in lands or goods.
If any marry a second husband,or wife, the first being alive.
If any commit buggery, or sodomy, a crime inter Christianos noft nominandum, says the indictment.
If a gipsy, or counterfeit Egyptian, have continued a month within this nation.
If any person, appointed by law to abjure, refuse it, or return after abjuration.
If any do wilfully, and maliciously, cut out the tongue, or put out the eyes of another.
If any receive, or relieve, or maintain any Jesuit, or other seminary priest, knowing him to be such.
If any incorrigible rogue, judged dangerous, and banished, return again.
If any dangerous rogue, branded in the shoulder, return again to a roguish life. ,
If any person, infected with the plague, wilfully go abroad, and converse among company.
Felonies against the Possession are these. If any break a dwelling-house in the night, with intent to do any felonious act there.
If any rob another by the high-way, or take any thing privately from his person.
If any take the goods of another in his absence, with intent to steal them.
If any servant go away with his master's goods (delivered to him) with intent to steal them, being of the value of forty shillings, or above. If any rob a church.
If any maliciously burn the house, or stack of corn, or barn of corn, of another.
If any take up a hawk, and do not carry her to the sheriff, to be prolaimed.
If any do, the second time, forge any deed, evidence, or writing, and publish it to be a good deed.
If any acknowledge a fine, or judgment, or deed, to be inrolled in the name of another, and not being the true person.
If any rase, imbezzle, or withdraw any record of the court.
If any use the art of multiplication of gold, or silver.
If any hunt by night in parks or warrens, with painted faces, or other disguises, and deny it upon examination.
If any persons, above twelve in number, raise any tumults or unlawful assemblies.
If above forty persons shall assemble together to do any unlawful act, and shall continue together, three hours, after proclamation for their departure.
If any depart out of this nation, to serve a foreign prince, without leave, and before bond entered, and oath taken according to the statute.
If any soldier, or mariner, who hath received press-wages, according to the statute, do afterward depart from their service, without license.
If any such soldier or mariner, do wander and beg, without a pass, or if they counterfeit their pass.
If any person having the custody of publick stores of victuals, or ammunition, imbezzle, or purloin any of it, to the value of twenty shillings, or above.
If any do the second time transport sheep beyond sea.
If any persuade another to commit any felony, or receive and assist any felon, after the felony committed, these are accessaries to the felony.
If any rescue a felon from prison.
If any felon break prison, and escape, or be suffered to escape, and be rescued.
Misprision offelony is this.
If any know another to have committed felony, and donot reveal it. Trespasses and offences against the peace,finable, arc these.
If any menace, assault, beat, or wound another.
If any make unlawful entry upon other men's lands, or unlawfully take away other men's goods.
If any make unlawful assemblies, routs, or riots.
If any chide, brawl, or draw a weapon to strike, or do strike in a church, or church-yard.
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