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of eminent quality, which, though called the Reader's Feast, was at the expence of the house.
“A reader also took place not only within his society but elsewhere, of all such as had not been readers, and he was wont to be heard in the King's Bench, and other courts of justice before others.”
We shall not venture to make any comment upon the disuse of the custoın, but must add, that these readings are not only curious from their antiquity, but some of them at least undoubtedly form a most valuable commentary upon the old statutes, and the publication of them has been often recommended, but for very obvious reasons, performed to a partial extent only. The expence and labour attending such an attempt are indeed sufficient to deter the most indefatigable antiquarian from hazarding it; but these reasons do not apply in all their force to the Law Journal, and having a few pages of our Number, which we devole to the publication of papers, likely to prove interesting to the profession, we think we cannot occupy them better than by occasionally giving such of these valuable remains as have never been published, together with curious legal Biography, which we commenced in the last Number.
We now present the introductory lecture of Mr. Serjeans Ashley to his readings, on the liberty of the subject, delivered at a very critical period of our history, and when this topic excited general attention.
READINGS on the Statute of Magna CHARTA, and other Statutes, relating to the Liberty
of the Subject. By FRANCIS ASHLEY, Esq.* afterwards Sir Francis AshLEY, Knight, and one of tke two elder Serjeants at Law, Anno 1625, Ist King Charles I.
(From an Original unpublished MS.) “I AM not ignorant how improper a personall discourse is to a public auditory, but if tolerable at any tyme, it may
* Mr. Ashley was attuan render in the Middle Temple in the 14th year of king James, A. D. 1616. He was made serjeant at law by patent, dated 15 February, 15th of James, A. D. 1617, and in the first year of king Charles, oth April,, A. D. 1625, was made one of the two elder serjeants at law, and after *ords received the honoos of knighthood. - In the year 1628, he was counsel
best receive a dispensation at those tymes when by a comendable custome, men are to render a reason of these undertakings.
“ Wherein I must needs declyne the comon apologie of distraction in resolution, and struggling with difficultyes that commonly disswade, and sometymes wholly divert these enterprizes: for since I first entered into this profession, and when I had once put my hand to this plough, I resolved not to looke back, and have therefore alwayes steered on with a foreright course, per sara, per undas : yet after long travaile, am but now entered the streights, and no sooner entered, but am presently fallen on the point which may well be called perilous, for it cannot be denied to be a perilous point indeed, when a nran must inevitably run the hazard of wreck of no worse commodity than his reputation, upon the rock of censure, be it either just or unjust, for if the censure of my actions be just according to their defects, or if my intentions be unjust according to their sincerity, either of these are sufficient to dip me in that depth of ruyne, wbich ( doe soe fearfully shun.
“I am not ashamed to say fearfully, sithence the most learned of physitians doe acknowledge that strong and sound bodies inay be sometymes affected with the disease which they call tremor cordis, a trepidation of the beart, which though not mortall, yet works a strange perturbation of the spirites for a tyme. Noe marvail then if I have a strong touch of this disease, to whom, out of long experience and inuch observation, it is right well knowen, that as often as a man speaks, soe often is lue judged: a man's words and wri. tings being but the pourtraitures and pictures of his mind, and his actions but an index to his intentions, but especially doe a man's publique actions indicare Tirum. When then a inan is to be heard, and being heard, inust be judged,
witn the Attorney General, and followed bim in a speech before the cominitiee of both Houses, in answer to the argument that was made by the House of Coininuts, touching the liberty of the person of every free man, for wl:ich he was on the next day called to the har of the Upper House, and committed to custody fo: his liberal speech, without special commission from the Ilouse, the lord president stating, “that though, at this free contereuce, liberty was given by the lords, to the king's counsel, to speak what they thought &t for his Majesty's service, yet Mr. Serjeant Ashley, had no authority vor direition from them to speak in the manner he had done."---The words which occasioned this committad were, tha "the propositious niade by the Commons tended rather to anarchy shan monarchy, and that they must allow the king to govern by acts of state." The serjeaut was suou afterwards released upon recauting and inaking an apodues
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and not only so, but judged for his faults too, with wbat affection then a man shall come to such a judgment, when he knowes he may be worthyly both judged and condemned; let those judge that are to be judged.
“ In all high attempts, every man knowes resolution is a principal virtue not to be spared, but it is as well known that if the resolute mau sees not, or knowes not, how his resolution will be seconded, they either quayle before the attempt, or are foyled in the action.
“Which considerations are inore than enough to daunt my determinations, because my secondes fayle ine.-The best secondes for an expedition of this kind are natural habilities and accidental aydes. The habilities of nature I reckon those have, (and many have them), who can say with Ovid, Quicquid conabar dicere, versus erat.-So surely many men have just apprehension, and apt disposition by nature to those exercises, that whatsoever points questionable fall within the compass of their apprehension, they can with great dexteritie mould them into the form of a reader's case, trom which, on the contrary, I have been naturally so averse, that some which know ine do know this defect in me, that I had rather argue many, than compose one.
The accidental aydes are those which the same author mentions to be requisite in the compiling of his metres, carmina secessum scribentis et otia quærunt. If liis verse, much rather doe these compositions require secessum et otium : but retired:ress and leisure have both been denyed me (hiatus in MS) *
**** chiefly with private distractions I may say
me mare, me venti, me fera jactat Hiems.
Therefore you must not, and all I hope is, you will not expect from me any thing exact, any thing curious.
But I do not thus apologize perfunctorily, or as those which soinetimes disable themselves with hope to win the great opinion, when they shall produce any thing praiseworthy, because it comes beyond expectation, for had I all the habilities of mature, ornament, of art, and advantages that study and industry could add unto me, I should need offer sacritice to St. Opinion, the great goddesse of fooles, yea, and of many also reputed wise, who cannot yet content themselves with the real parts of their endowinents, but think that Scire tuum nihil est nisi, hoc sciat alter, and will needes also tender au oblation at the shrine of this saint.
From which any man inay discharge me, who sees what choice I have made of the iheme, to be the subject of my labours, whereby it is iinpossible I should gain any opinioni, unless it be an opinion of foolhurdiness, that will thus expose myself to peril, and put forth to sea in so dangerous a bottome, when the billows work high, and the superior bodyes threaten stormes, and I wot well that procul a Jove, procul a fulmine.
But jacta est alea. It is now too late for me to run retrogade, and I will not doubt but the same power which first directed my perplexed cogitatio::s to pitch and settle upon this subject, without purpose of offence, will also guide ine to proceed therein to an offenceless conclusion.
“ The statute * you may perceive, proclaimes liberty to the subject; but it must not be conceyved to be a lawless liberty, whereby men may live like libertines, but a liberty bounded by the equities of law and reason; and yet such a liberty as whereby tlie subject may well say he was delivered from a great tbralldome, and tyrannical oppression.
“ For when duke William had by his Norman sword purchased an English monarchie, he soon after gave our countrymen to understand, that his sword was bis best title to his kingdome, although he came first as a pretender ; for shortly after he seized upon the best English possessions, resumed their liberties, imposed tallages at pleasure, endeavoured to abrogate their lawes and abolish their ancient customs; and such as withstood the articles he exhibited for change of lawes, and innovation of government, then he exiled by his power, without forme of lawe, labouring by all means to make himself absolute.
“And after his time, also, by reason of the continual revolts in Normandy and Acquitaine, and several home attempts and doinestic broyls, the government in this kingdome was rather arbitrary than legall, until the tyme of Henry the 3d.
“ At which tome, the state being better settled, and the tymes more peaceable, the barons and commons then became more sensible of the loss of the benefit of those ancient laws, of which the power of : conqueror hari deprived them, and therefore(making happily some advantage of the tenderness of the king's yeares), by parliament, in the 9th of Jlenry 3d, obtained restitution of those lawes, which had susteyped so long a suspension ; which statutes are stiled the king's great charter, and the charter of the forest, though enacted by parliament, because they could not passe but by his royal assent. And it was not amiss that denoni,
natio should be a prestantiori, the subjectes not regarding quo nomine their liberty came, so they might enjoy it.
“ It is not worth the dispute, whether it be a statute de noro, or be but a declaration of the ancient cominon law, but lanı of opinion with the Doctor and Student (fol. 12, a), who sayth that it is an old custome of the realine, and that it was now but confirmed, which I doe the rather belecve, for that it conteynes the some and the substance of all those lawes which were in use in the tyme of that king Edward who had the addition of Holy, and were so much respected, that at all types since the restoration of those ancieni laws, published by the statute of magna charta, the kings of this realme are, amongst other particulars of their oaths, taken at their coronation, sworne to observe and mainteyne the laws of St. Edward.
“ Yet it lets not, but that these lawes, having new life put into them by parliament, after so long disusage, may well be called and accounted statutes, for so doth the same Doctor and Student say, that this ancient custome was confirmed by this statute, and the statute, 5th Edward 3, c. 3, which refers unto it, terms it a statute ; and it is inost usuall at this day, in an action brought upon this law, to conclude contra formam siatuti, which I mention to this purpose, that a man that einploy's his travayles to the exposition of this law, may as weil be sard to reade on a statute, as he that reades on the statute of the 25th of Edvard 3d, of treasons,
many others which I could instance, which are agreed to be but declarations of the common law, yet
have otten been taken up as statutes, by those which have taken up the place wherein I now sit. But if it be the common law, it is the law of lawes, for as the Lord Coke sayth, in his preface to bis 8th report, the old stilutes, which were the ancient common lawes, are the body and the test, and all records and reports are but commentaryes and expositions upon them ; and so is this law in effect the ground, and the subsequent, but flourishes upon it; this the lase, and others the descunt.
s. But it it be a meer statute, it is the statute of statutes, for it liath begotten many of the like kind, as 2d Edward 3d, c. 6; and ed Richard Qd, c. 10. No commandment under the great or privy seale shall delay justice.
" The 5th Edward 3d, c. 9, refers to this in expresse terines, saying, that no man shall be attached or torejudged of Inte, lviub, lands, or goods, contrary to the statute of magna charta.
The 28th Ellward 3d, c. 3. No man shall be disseised of his land, imprisoned, or condemnyd, without answere.