To the Author of the New-England Courant.
I HAVE often reflected with
Wonder on the Stupidity of
many of my Countrymen,
who know little or nothing
of the happy Constitution
of an English Government,
and who are as unconcern'd
to know the Liberties they
enjoy thereby, as if it were
a thing indifferent with
them, whether they were
protected by it, or other-
wise ------------. For this
Reason I have sent you, in
order to be publish'd, the
29th Chapter of Magna Charta, which I doubt will be of
Service to many of your Readers, and will particularly oblige,
NO Freeman shall be taken or imprisoned, or disseised of
his Freehold, or Liberties, or free Customs, or be out-
lawed, or exited, or any otherwise destroyed, no will we pass
upon him, nor condemn him, but by lawful Judgment of his
Peers, or by the Laws of the Land. We will see to no Man,
we will not deny or defer to any Man, either Justice or Right.
No Freeman shall be taken, &c. These Words deserve to be
written in Letters of Gold, and I have often wondred that
they are not inscribed in Capitals in all our Courts of Judica-
ture, Town-halls, and most publick Edifices; they being so
Essential to our English Freedom and Liberties, and because
my Lord Coke in the second Part of his Institutes, has many ex-
cellent Observations on this Chapter : I shall recite his very
ss. This Chapter containeth nine several Branches.
(1.) That no Freeman shall be taken, or imprisoned, but by
the Law of the Land, (i.e.) by the Common Law, or the Sta-
tute Law, for the Liberty of a Man's Person is more dear to
to him than any Thing, and therefore if he be wronged in
that Liberty, 'tis very reasonable he should be relieved.
(2.) No Man shall be disseised,
(i.e.) put out of Siesin, or
be dispossessed of his Freehold, (i.e.) of his Lands or Tene-
ments, or Livelihood, or of his Liberties, or Free-Customs,
which belong to him as his Birth-right, unless it be by Law-
ful Judgment (i.e.) by a Verdict of his Equals, or Men of
his own Condition, or by the Laws of the Land, (i.e.) to speak
one for all, by the due Course and Process of Law.
(3.) No Man shall be outlawed, (i.e.) deprived of the
fit of the Law, unless he is outlawed according to the Course
of the Law of the Land.
(4.) No Man shall be exiled, (i.e.) banished out of his
try, unless it be by the same Law.
(5.) No Man shall in any sort for destroyed, unless it be
the Verdict of his Equals, &c.
(6.) No Man shall be Condemned at the King's Suit, in the
Court of King's Bench, for so are the Words, ( nec Supra eum
ibimus) to be understood; nor before any other Commission-
ner or Judge whatsoever, and that is implyed by the Words
nec Supra eum mittemus, but by the Judgment of his Peers or
Equals, or according to the Law of the Land.
7. We shall sell to no Man Justice or Right.
8. We shall deny to no Man Justice or Right.
9. We shall defer to no Man Justice or Right.
Each of these Branches we shall briefly explain.
1. No Man shall be taken, &c. (ie.) restrained of his
ty, by Petition, or Suggestion to the King or Council, unless it
be by Indictment or Presentment, of good and lawful Men, li-
ving near the place where such Deeds were done.
2. No Man shall be disseised,
&c. Hereby is intended, that
Lands, Tenements, Goods and Chattels, shall ot be siezed in-
to the King's Hands contrary to this great Chater, and the
Law of the Land; nor any Man shall be disseised of his Lands
or Tenements, or dispossessed of his Goods or Chattels, con-
trary to the Law of the Land.
No Man ought to be put from his Livelyhood without An-
3. No Man outlawed, that is, barred to have the Benefit of
the Law. And note, to this Word Outlawed, these Words,
Unless by the Law of the Land do refer. [Of his Liberties.]
This Word hath three Significations:
I. As it hat been said, it signifyeth the Laws
of the Realm,
in which respect this Charter is called Charta Libertatum, as
2. In signifieth the Freedom the Subjects of
For Example, The Company of Merchant-Taylors of Eng-
land, having power, by their Charter, to make Ordinances,
made an Ordinance, that every Brother of the same Society,
should put the one half of his Cloths to be dressed by some
Cloth Workers Free of the same Company, upon pain to Forfeit
10 s. &c. And it was adjudged, that this Ordinance was a-
gainst the Law, because it was against the Liberty of the Subject,
for every Subject hath Freedom to put his Cloths to be
dressed by whom he will, & sic de similbus. And so it is,
if such or the like Grant had been made by his Letters Pa-
3. Liberties signify the Franchises and
the Subjects have of the Gift of the King, as the Goods and
Chattels of Felons, Outlaws, and the like; or which the Sub-
ject claims by Prescription, as Wreck, Waif, Stray, and the
So likewise, and for the same Reason, if a Grant be made
to any Man for the sole making of Cards, or the sole dealing
with any other Trade, that Grant is against the Liberty
and Freedom of the Subject, that before did or lawfully
might have used that Trade, and consquently against this
Generally all Monopolies are against this great Chatter,
because they are against the Liberty and Freedom of the Sub-
ject, and against the Law of the Land.
4. No Man exiled, that is, banish'd, or forced the depart or
stay out of England without his Consent. By the Law of
the Land, no Man can be exiled or banished out of his Na-
tive Country, but either by Authority of Parliament, or in
Case of Abjuration for Felony, by the Common Law: And
so when our Books, or Record speak of Exile, or Banish-
ment, other than in Case of Abjuration, it is intended to be
done by Authority of Parliament, as Belknap and other Judg-
es, &c. banished into Ireland in the Reign of of Richard II.
5. No Man destroyed, that is, fore-judged of Life or Limb,
or put to Torture, or Death : Every Oppression against Law,
by colour of any usurped Authority, is a kind of Destruction.
And the words, Alique modo (any otherwise) are added to
this Verb, destroyed, and to no other Verb in this Chapter,
and therefore all things, by any Manner of Means, tending to
Destruction, are prohibited ; as, if a Man be accused or in-
dicted of Treason or Felony, his Lands or Goods cannot be
granted to any, no not so much as by Promise, nor any of his
Lands or Goods seized into the King's Hands before he is
attained ; for when a Subject obtaineth a Promise of the
Forfeiture, many Times undue Means, and more violent
Prosecution is used for private Lucre, tending to Destruction,
than the quiet and just Proceeding of the Law would permit,
and the Party ought to live of his own until Attainder.
6. By Lawful Judgment of his Peers, that is, by Equals,
Men of his own Rank and Condition. The general Divisi-
on of Persons, by the Law of England, is either one that is
Noble, and in Respect of his Nobility, of the Lords House of
Parliament, or one of the Commons, and in respect thereof,
of the House of Commons in Parliament. And as there be
divers Degrees in Nobility, as Duke, Marquesses, Earls,
Viscounts and Barons, and yet all of them are comprehended
under this Word Peers, and are Peers of the Realm : So of
the Commons, there be Knights, Esquires, Gentlemen, Citi-
zens and Yeomen, and yet all of them Commons of the
Realm. And as every of the Nobles is one a Peer to another,
though he be of a several Degree ; so it is of the Commons,
and as it hath been said of Men, so doth it hold of Noble
Women, either by Birth of Marriage.
And forasmuch, as this Judgment by Peers is called lawful,
it shews the Antiquity of this manner of Trial: It was the
ancient, accustomed, legal Course, long before this Charter.
Or by the Law of the Land, that is, by due Process of
for so the Words are expresly expounded by the Statue of
37 Ed. 3. c. 8. And these Words are specially to be referred
to those foregoing, to whom the relate. As none shall be
condemned without a Lawful Tryal by his Peers, so none
shall be taken imprisoned, or put out of his Freehold, with-
out due Process of the Law, that is, by the Indictment or
Presentment of good and lawful Men of the Place, in due
Manner, or by Writ Original of the Common Law.
Now, seeing that no Man can be taken, arrested, attached,
or imprisoned, but by due Process of Law, and according to
the Law of the Land, these Conclusions hereupon do follow.
1. That the Person or Persons who commit any, must have
2. It is necessary that the Warrant, or Mittimus, he
and that must be in Writing, under his Hand and Seal.
3. The Warrant, or Mittimus, containing a lawful Cause,
ought to have a lawful Conclusion, &c and him safely to
keep until he be delivered by Law, &c. and not until the
Party committing shall further Order.
If any Man, by colour of Authority where he hath no
in that particular Case, shall presumed to arrest or imprison
any Man, or cause him to be arrested or imprisoned, this is
against this Act, and it is most hateful, when it is done by
countenance of Justice. King Edward VI did incor-
[The printer has a hand with a finger pointing at this line, the line above, and the line below.] porate the Town of St. Albans, and granted to them
to make Ordinances, &c. they made a By-Law upon
Pain of Imprisonment, and it was adjudged to be against the
Statute of Magna Charta; so it has been, if such an Ordi-
nance had been contained in the Patent itself.
We will sell to no Man, deny to no Man, &c. This is
ken in the Person of the King, who in Judgment of the Law,
in all his Courts of Justice, is present: And therefore every
Subject of this Realm, for Injury done to him, in Person,
Lands or Goods, by any other Subject, Ecclesiastical or Tem-
poral, whatever he be, may take his Remedy by the Course
of the Law, and have Justice and Right for the Injury done
him, freely without Sale; fully, without Denial; and spee-
dily, without Delay; for Justice must have three Qualities,
it must be Libera, free; for nothing is more odious than
Justice set to sale: Plena, full, for Justice out not to limp,
or be granted by Peace-Meal : And Celeris, speedy : Quik
dilatio est quedam negatio, Delay is a kind of Denial : And
when all these meet, it is both Justice and Right.
We will not deny nor delay any Man, &c. These Words
have been excellently expounded by latter Acts of Parlia-
ment, that by no Means common Right, or common Law,
should be disturbed or delayed ; no, though it be commanded
under the Great Seal, or Privy Seal, Order, Writ, Letters,
Message, or Commandment whatsoever, from the King, or
any other ; and that the Justices shall proceed, as is no such
Writs, Letters, Message, or the Commandment were come
to them: All our Judges swear to this ; for 'tis part of their
their Oaths: so that if any shall be found wresting the Law,
to serve a Court-turn, they are Perjur'd as well as Unjust.
The Common Laws of the Realm should by no means be de-
layed, for the Law is the surest Sancutary that a Man can
take, and the Strong Fortress to protect the weakest of all ;
Lex est tutissima Cassis, the Law is a most safe Head piece,
and sub Clypeo legis Nemo decipitur, no Man is deceived
whilst the Law is his Buckler: But the King many stay his
his own Suit, as a Capias pro fine, for the King may respite
his Fine, and the like.
All Protections that are not legal, which appear not in the
Register, nor warranted in our Books, are expressly against
this Branch, nulli differemus, we will not delay any Man.
As a Protection under the Great Seal, granted to any Man,
directed to the Sheriff, &c. and commanding them that
they shall not arrest him during a certain Time, at any o-
ther Man's Suit, which hath the Words in it, By our Prero-
gative which we will not have disputed : Yet such Protecti-
ons have been argued by the Judges, according to their Oath
and Duty, and adjudged to be void. As Mich. II. H.7. Rot.
124 a Protection granted to Holmes a Vintnur of London, his
Factors Servants and Deputies, &c. Resolved to be against
Law, Pasch.7. H. 8.Rot. 66. such a Protection disallowed,
and the Sheriff amerced for not executing the Writ, Mich.
13 and 14 Eliz. in Hitchcock's Case, and many other of lat-
ter Time: And there is a notbale Record of Ancient Time,
in 21.E. I. John de Marshal's Case; Non pertinet ad Vicecomi-
tem de protectione Regis judicare, imo ad Curiam.
Justice or Right,We shall not sell, deny or delay, Justice
or Right ; neither the End, which is Justice, nor the mean
whereby we may attain the End, and that is the Law : Right
is taken here for Law, in the same Sense that Justice often is
so called. I. Because it is the right Line, whereby Justice dis-
tributive is guided and directed ; and therefore all Com-
missioners of Oyer and Terminer, of Goal-delivery, of the
Peace, &c. have this Clause, Facturi quod ad Justitiam per-
rinet, secundum Legem & Consaetudinem Anglie ; that is,
to do Justice and Right, according to the Law and Custom of
England : And that which is called Common Right, in 2 E. 3
is called Common Law in 14 E. g. &c. and in this Sense it is
taken, where it is said, It a quod fiat Rectus in Couria, id est,
Legi in Curia
2. The Law is called Rectum, because it discovereth that
which is crooked or wrong ; for as Right signifieth Law, so
crooked or wrong signifieth Injuries ; and Injuria est contra
jus, Injury is against Right : Recta Linea est index sui & ob-
tiqui, a right Line is both Declaratory of itself and the ob-
lique. Hereby the crooked Cord of that which is called Dis-
cretion, appeareth to be unlawful, unless you take it as it ought
to be, Discretion est discernere per Legem, quid fit Justum, Dis-
cretion is to discern, by the Law what is just.
3. It is called Right, because it is the best Birth right the
Subject hath, for thereby his Goods, Lands, Wife and Chil-
dren, his Body, Life, Honour and Estimation, and protected
from Injury and Wrong : Major Hereditas venit unicuiqus
mostrum a Jure & Legibus, quom a Parentibus : A greater In-
heritance descends to us from the Laws, than from our Proge-
Thus far the very words of that Oracle of our Law, the sage
this incomparable Law that it will be superfluous to add any
thing farther on this Chapter.
A Passage in the Charter granted by K. William
to the Province of the Massachusetts-Bay in N. England.
And We do of Our Author Grace, certain Knowledge and
meer Motion, Grant, Establish and Ordain, for Us, Our
Heirs and Successors, that the Great and General Court or
Assembly of our said Province or Territory for the Time be-
ing, Convened as aforesaid, shall forever have full Power
and Authority to ERECT AND CONSTITUTE JUDI-
CATORIES and Courts of Record, or other Courts, to be
held in the Name of Us, Our Heirs and Successors ; for
the Hearing, Trying and Determining of ALL MANNER
OF CRIMES, Offences, Pleas, Processes, Plaints, Actions,
Matters, Causes and Things whatsoever, arising or happen-
ning within Our said Province or Territory ; or between
Persons inhabiting or residing there ; whether the same be
Criminal or Civil, and whether the said Crimes be Capital
or not Capital, and whether the said Pleas be Real, Personal
or Mixt ; and for the Awarding and making out of Executi-
From a Letter to a Gentleman of the House of Representatives.
—Whether, to encourage the Hosue to it and by what they
have done, Precedents have not been quoted from the Parlia-
ment that rebelled, &c. And — Whether (supposing Pre-
cedents were cited from other Parliaments) we are to imitate
the House of Commons in England, any farther than our
CHARTER gives us leave to do so