Vindication of Old Fundamental Liberties, Chapter
CHAP. II.
HAving thus ſufficiently proved, That the Kingdome, and Freemen of England, have ſome ancient, hereditary Rights, Liberties, Franchiſes, Priviledges, Cuſtomes, properly called FVNDAMENTALL, as likewiſe a Fundamentall Government, no wayes to be altered, under mined, ſubverted, directly or indirectly, under the guilt and pain of High Treaſon in thoſe who attempt it; eſpecially by Fraud, Force, or armed Power.
I ſhall in the ſecond place preſent you in brief Propoſitions, a Summary of the chiefeſt and moſt conſiderable of them, which our prudent Anceſtors in former ages, and our lateſt reall Parliaments, have both declared to be, and eagerly conteſted for, as Fundamentall and Eſſentiall to their very being and well being, as a Free people, Kingdome, Republick, unwilling to be enſlaved under any yokes of Tyranny or arbitrary power, that ſo the whole Nation may the more perſpicuouſly know and diſcern them, the more ſtrenuouſly contend for them, the more vigilantly watch againſt their violations, underminings in any kind, by any Powers, or Pretences whatſoever; and tranſmit, perpetuate them intirely to their poſterities, as their beſt and chiefeſt inheritance.
I ſhall compriſe the Summe and Subſtance of them all in theſe 9. Propoſitions; beginning with the Subjects Property, which hath been more frequently, univerſally invaded, aſſaulted, undermined by our Kings, and their evill inſtruments; and thereupon more ſtrenuouſly, frequently and vigilantly maintained, retained by our Nobles, Parliaments and the people in all ages (till of late years) than any or all of the reſt put together, though every of them have been conſtantly defended, maintained, when impugned, or incroached upon by our Anceſtors and our ſelves.
1. That no Tax, Tallage, Aid, Subſidy, Cuſtome, Contribution, Loan, Impoſition, Exciſe or other Aſſeſſement whatſoever, for Defence of the Realm by Land or Sea, or any other publick ordinary, or extraordinary occaſion, may or ought to be impoſed, or levyed upon all or any of the Freemen of England, by reaſon of any pretended or reall Danger, Neceſſity or other pretext; by the Kings of England, or any other Powers, but onelyonly with and by their common conſent and Grant, in a free and lawfull Parliament duly ſummoned and elected: Except onelyonly ſuch ancient, legall Ayds, as they are ſpecially obliged to render by their Tenures, Charters, Contracts, and the Common Law of England.
2. That no Freeman of England ought to be arreſted, confined, impriſoned, in any private Caſtles, or remote, unuſuall Priſons under Souldiers or other Guardians, but onelyonly in uſuall or Common Gaols, under ſworn, reſponſible Gaolers, in the County where he lives, or is apprehended, and where his Friends may freely viſit and relieve him with neceſſaries: And that onelyonly for ſome juſt, and legall cauſe expreſſed in the Writ, Warrant, or Proceſſe, by which he is arre…ed, or impriſoned; which ought to be legally executed by known, legal, reſponſible ſworn Officers of Juſtice, not unknown military Officers, Troopers, or other illegall Catchpols, That no ſuch Freeman ought to be denied bail, Mainpriſe, or the benefit of an Habeas Corpus, or any other Legal Writ for his enlargement, when bailable or incumpernable by Law; nor to be detained priſoner for any reall or pretended Crime, not bailable by Law, then untill the next Generall or Speciall Gaol-delivery, held in the County where he is impriſoned; where he ought to be legally tried and proceeded againſt, or elſe enlarged by the Juſtices, without deniall or delay of Right and Juſtice. And that no ſuch Freeman may or ought to be outlawed, exiled, condemned to any kind of corporall puniſhment, loſſe of Life or Member, or otherwiſe deſtroyed or paſſed upon, but onelyonly by due and lawfull Proceſſe, Indictment, and the lawfull Triall, Verdict and Judgment of his Peers, according to the good old Law of the land, in ſome uſuall Court of Publick Juſtice: not by and in a new illegall, Military, or other Arbitrary Judicatories, Committees, or Courts of High Juſtice, unknown to our Anceſtors.
3. That no Freeman of England, unleſſe it be by Speciall Grant and Act of Parliament may or ought to be compelled, enforced, preſſed or arrayed to go forth of his own Countrey (much leſſe out of the Realm into forreign parts) againſt his will in times of Warre or Peace, or except he be ſpecially obliged thereto by ancient Tenures and Charters; ſave onelyonly upon the ſudden coming of ſtrang enemies into the Realm, and then he is to array himſelf onelyonly in ſuch ſort, as he is bound to do by the ancient Laws and Cuſtoms of the Kingdome ſtill in force.
4. That no Freeman of England, may or ought to be disinherited, diſſeiſed, diſpoſſed or deprived of any inheritance, Freehold, liberty, Cuſtome, Franchiſe, Chattle, Goods whatſoeuer without his own Gift, Grant, or free Conſent, unleſſe it be by lawfull Proceſſe, Triall and Judgment of his Peers, or ſpeciall Grant by act of Parliament.
5. That the old received Government, Laws, Statutes, Cuſtomes, Priviledges, Courts of Juſtice, legall Proceſſe of the Kingdome and Crown ought not to be altered, repealed, ſuppreſſed, nor any new from of Government, Law, Statute, Ordinance, Court of Judicature, Writs, or legall Proceedings inſtituted or impoſed on all or any of the Free men of England, by any Perſon or Perſons, but onelyonly in and by the Kingdomes free and full Conſent in a lawfull Parliament, wherein the Legiſlative Power ſolely reſides.
6. That Parliaments ought to be duly ſummoned, and held for the good and ſafety of the Kingdome every year, or every three years at leaſt, or ſo often as there is juſt occaſion. That the Election of all Knights, Citizens, and Burgeſſes, to ſit and ſerve in Parliament) and ſo of all other Elective Officers) ought to be free. That all Members of Parliament hereditary or Elective, ought to be preſent, and there freely to ſpeak and vote according to their judgements and Conſciences, without any overawing Guards to terrifie them; and none to be forced or ſecluded thence. And that all Parliaments not thus duly ſummoned, elected whilſt held, but unduly packed, and all Acts of Parliament fraudulently and forcibly procured by indirect means, ought to be nulled, repealed, as void, and of dangerous preſident.
7. That neither the Kings nor any Subjects of the Kingdome of England, may or ought to be ſummoned before any Forreign Powers or Jurisdictions whatſoever, out of the Realm, or within the ſame, for any manner of Right, Inheritance, Thing belonging to them, or Offence done by them within the Realm.
8. That all Subjects of the Realm are obliged by Allegiance and duty to defend their Lawfull Kings, Perſons, Crowns, the Laws, Rights and Priviledges of the Realm, and of Parliament againſt all Uſurpers, Traytors, violence, and Conſpiracies. And that no Subject of this Realm, who according to his duty, and Allegiance ſhall ſerve his King in his Warres, for the juſt defence of him and the Land, againſt Forreign enemies or Rebels, ſhall loſe or forfeit any thing for doing his true duty, ſervice, and Allegiance to him therein; but utterly diſcharged of all vexation, trouble, or loſſe.
9. That no publick Warre by Land or Sea ought to be made or levied with or againſt any Forreign Nation, or Publick Truce or League entred into with Forreign Realms or States, to bind the Nation, without their Common advice and conſent in Parliament.
10. That the ancient, Honours, Manors, Lands, Rents, Revenues, Inheritances, Right, and perquiſites of the Crown of England, originally ſettled thereon for the Eaſe & Exemption of the people from all kind of Tax…s, payments whatſoever (unleſſe in caſes of extraordinary neceſſity) and for defraying all the conſant, ordinary, expences of the Kingdome, (as the expences of the Kings houſhold, Court, Officers, Judges, Embaſſadors, Gariſons, Navy and the like) ought not to be ſold, alienated, given away or granted from it, to the prejudice of the Crown and burdening of the people. And that all Sales, Alie nations, Gifts, or Grants thereof, to the empairing of the publick Revenue, or prejudice of the Crown and people, are void in Law, and ought to be reſumed, and repealed, by our Parliaments and Kings, as they have frequently been in all former ages.
For the Readers fuller ſatisfaction in each of theſe propoſitions (ſome of which I muſt ſhew here, but briefly touch, for brevity ſake, having elſewhere fully debated them in print) I ſhall ſpecially recommend unto him the peruſall of ſuch Tracates, and Arguments formerly publiſhed, wherein each of them hath been fully diſcuſſed, which he may peruſe at his beſt leaſure.
The firſt of theſe Fundamentalls (which I intend principally to inſiſt on) is fully aſſerted, debated, confirmed by 13. H. 4. f. 14. By Forteſ…ue Lord Chief Juſtice, and Chancellour of England, de laudibus Legum Angliae, dedicated by him to King Henry the 6 f. 25. c. 36. f. 8…. By a learned and neceſſary Argument againſt impoſitions in Parliament, of 7. Jacobi: by a late Reverend Judge, printed at London 1641. By Mr. William Hakewell, in his Liberty of the Subject againſt Impoſitions, maintained in an Argument in the Parliament of 7. Jacobi: printed at London 1641. By Judge Crooks, and Judge Huttons Arguments concerning Shipmony both printed at London 1641. By the Caſe of Shipmony briefly diſcuſſed London, 1640. by Mr. St. Johns Argument, and Speech againſt Shipmony, printed at London, 1641. By Sir Edward Cook in his 1. Inſtitutes, p. 46. and 57. to 64. and 528. to 537. By the 1. and 2. Remonſtrance of the Lords and Commons in Parliament, againſt the Commiſſion of Array. Exact Collection p. 386. to 398. and 850. to 890. and by my own Humble Remonſtrance againſt Shipmony, London, 1643. The fourth part of the Soveraign power of Parliaments and Kingdomes, p. 14. to 26. and my Legall Vindications of the Liberties of England againſt Illegall Taxes, &c. London 1649. and by the Records and Statutes cited in the enſuing Chapter, referring for the moſt part to the firſt Propoſition.
The ſecond, third, and fourth of them are la…gely debated and confirmed by a Conference deſired by the Lords, and had by a Committee of both Houſes, concerning the Rights and Priviledges of the Subject, 3. Ap…ilis, 4. Ca…ol… printed at London 1642. By Sir Edward Cook in his Inſtitutes on Magna Charta. c. 29. p. 45. to 57. By the 1. and 2. Remonſtrance of the Lords and Commons againſt the Commiſſion of Array, Exact Collection p. 386. &c. 850. to 890. By Judge Crooks, and Judge Huttons Arguments againſt Shipmony: By Sir Robert Cotton his Poſthuma p. 222. to 269. By my Breviate of the Prelates encroachments on the Kings Prerogative, and Subjects Liberties. p. 138. &c. My new diſcovery of the Prelates tyranny, p. 137. to 183. and ſome of the enſuing Statutes, and Records.
The fifth and ſixth of them are fully cleared and vindicated in and by the Prologues of all our Councils, Statutes, Laws, before and ſince the Conqueſt. By Sir Edward Cooks 4. Inſtitutes ch. 1. Mr. Cromptons Jurisdiction of Courts. Title, High Court of Parliament: My Soveraign power of Parliaments and Kingdomes, p. 1, 2, 3, 4. My Legal Vindication againſt illegal Taxes, and pretended Acts of Parliament, London 1649 Prynne the Member, reconciled to Prynne the Barreſter, printed the ſame year. My Hiſtoricall Collection of the ancient great Councils of the Parliaments of England. London 1649. My Truth triumphing over Falſhood, Antiquity over Novelty. London 1645. and ſome of the Records hereafter tranſcribed. In this I ſhall be more ſparing, becauſe ſo fully confirmed in theſe and other Treatiſes.
The ſeventh is ratified by Sir Edward Cooks 1. Inſtitutes, p. 97, 98. 4. Inſtitutes p. 89. and 5. Report Cawdries Caſe of the Kings Eccleſiaſticall Lawes: and Raſtals Abridgement of Statutes. Tit. Proviſors, Praemunire and Rome, 11. H. 7. c. 1. and other Records and Statutes in the enſuing Chapter.
The eighth and ninth are fully debated in my Soveraign Power of Parliaments and Kingdomes, Part. 2. p. 3. to 34. Part fourth, p. 162. to 170. and touched in Sir Robert Cottons Poſthuma p. 174. to 179.
How all and every of theſe Fundamentall Liberties, Rights, Franchiſes, Lawes, have been unparalelledly violated, ſubverted, in all and every particular of late years beyond all Preſidents in the worſt of former ages, even by their greateſt pretended Propugners; their own printed Edicts, Inſtruments, Ordinances, Papers, together with their illegall oppreſſions, Taxes, Exciſes, Impoſts, Rapines, violences, Proceedings of all kinds, (whereof I ſhall give a brief accompt in its due place) will ſufficiently evidence, if compared with the premiſed propoſitions. Which abundantly confirm the truth of our Saviours words, John 10. 1. 10. and this rule of Johannis Angelius, Wenderhagen: Politicae Synopticae. lib. 3. c. 9. ſect. 11. p. 310. Hinc Regulae loco notandum, Quod omne Regnum Vi Armata acquiſitum in Effectu Subdit is Semper in durioris Servitutis conditiones arripiat, licet à principio Ducedinem prurientibus … videatur. Ideo cunctis hoc cavendum, Nè temrè … patiantur.
FINIS.
End of the text · William Prynne, Vindication of Old Fundamental Liberties (1654)