unto the power of the House in committing me J stooped but at their doore desired to be committed by a legall Warrant which by their own Law published in Sir Edward Cooks institutes Votes and Ordinances all warrants of commitments whatsoever ought expresly to containe the certaine particular case wherefore a man is committed and ought to conclude and him safely to keep till he be delivered by due course of Law and for the full proof of this read the 68 69. pages of the following discourse and the 11 12 13 14 15 pages of Mr. Iohn Wildmans late defence called Truths Triumph or Treachery anotamised But if the Warrant be in generall words and be also to keep him during their pleasure and made by the Parliament the prisoner is murthered and destroyed by such an imprisonment For he must either stoop to their wills and so betray his liberties and sin against his own soule or else he must remaine in prison till he starve and rot before any Iudge in Westminster Hall will grant him a Habeas Corpus to bring him up to the barre of Justice either to receive his punishment according to Law or else his liberties as uniustly imprisoned and this made me the other day at the House of Commons to contest for a legal warrant before I would go to Prison but that mercinary Turkish Ianisary Col. Baxster laid violent hands upon me telling me expresly he was not either to reason or dispute the Houses commands but to obey them caused his Soldiers to draw their swords upon me in halling of me away by force violence he stabed Magna Charta the Petition of Right c. to the very heart and soule did asmuch as in him lyes by that act destroy all our Lawes and liberties for if authority must be backt with the sword to put in execution all their unjust commands then farwell all law and liberty forever and accursed be the day that ever the Parliament raised an Army to fight for the preservation of our lawes and liberties if now they convert their power and turne their swords and guns against us by force of armes to destroy our lawes and liberties John Lilburne 6. Feb. 1647. In the third yeare of the reign of Charles King of England Scotland France and Ireland AT the Parliament begun at Westminster the seventeenth day of March An. Dom. 1627. in the third yeare of the reigne of our most gracious Soveraigne Lord Charles by the grace of God of England Scotland France and Ireland King Defender of the Faith c. And there continued untill the 26. day of Iune following and then prorogued unto the 20. day of October now next ensuing To the high pleasure of Almighty God and to the weale publique of this Realme were enacted as followeth The petition Exhibited to his Majestie by the Lords Spirituall and Temporall and Commons in this present Parliament assembled concerning divers Rights and Liberties of the Subiect with the Kings Majesties royall answer thereunto in full Parliament To the Kings most Excellent Majestie HVmbly sheweth unto our Soveraigne Lord the King the Lords Spirituall and Temporall and Commons in Parliament assembled That whereas it is declared aâ—d inacted by a Statute made in the time of the reigne of King Ed. the first commonly called Statutum de Tallagio non concedento a a 34. Ed. 1. chap. 1. That â—o tallage or aid shall be laid or levied by the King or his Heires in this Realme without the good will and assent of the Arch Bâ—shops Bishops Earles Barons Knights Burgesses and other the free men of the Commonalty of this Realme And by authority of Parliament holden in the five and twentieth yeare of the reigne of King Edward the third b b 25. Ed. 3 Rot. Par. it is declared and inacted That from thenceforth no person should be compelled to make any loanes to the King against his will because such loanes were against reason and the franchise of the Land And by other Lawes of this Realme it is provided that none should be charged by any charge or imposition called a Benevolence nor by such like charge c c 25. Ed. 1. 6. 1. Ed. 3. 6 11. R. 2. 9. 1. R. 3. 2. by which the Statutes before mentioned and other the good Lawes and Statutes of this Realme your Subjects have inherited this Freedome That they should not be compelled to contribute to any tax tallage aid or other like charge nor set by common consent in Parliament 1. R. 3. 2. Yet neverthelesse of late divers Commissions directed to sundry Commissioners in severall Counties with instructions have issued by meanes whereof your people have been in divers places assembled and required to lend certaine summes of money unto your Majestie and many of them upon their refusall so to do have had an oath administred unto them not warrantable by the Lawes or Statutes of this Realme * * Oaths Ex Officio unlawfull and have been constrained to become bound to make appearance and give attendance before your privie Councell and in other places and others of them have been therefore imprisoned confined and sundry otherwayes molested and disquieted And divers other charges have been laid and levied upon your people in severall Counties by Lord Lievtenants Deputy Lieutenants Commissioners for Musters Iustices of Peace and others by command or direction from your Maiesty or your privie Councell against the Lawes and free customes of the Realme * * All Magistracy in England is bounded by the law thereof e e 28. Ed. 3. 3. And where also by the Statute called THE GREAT CHARTER OF THE LIBERTIES OF ENGLAND d d 9 H. 3. 29. It is declared and enacted f f 25. Ed. 3. That no free man may be taken or imprisoned St. 37. Ed. 3. 18. St. 38. Ed. 3. 9. St. 42. Ed. 3. 3. St. 17. R. 2. 6. or be disseized of his Free hold or Liberties or his free Customs or he outlawed or exiled or in any manner distroyed but by the lawfull iudgement of his PEERS or by the Law of the Land And in the eight and twentieth yeare of the reigne of King Edward the third e it was declared and enacted by authority of Parliament That no man of what estate or condition that he be should be put out of his Land or Tenements nor taken nor imprisoned nor disherited nor put to death without being brought to answer by due processe of Law Neverthelesse against the tenour of the said Statutes and other the good Lawes and Statutes of your Realme to that end provided f divers of your Subiects have of late been imprisoned without any cause shewed * * Imprisonment without cause shewed is illegall See also Cooke 2. part institutes upon the 29. chap Magna Charta And when for their deliverance they were brought before your Iustices by your Majesties Writs of Habeas corpus there to undergoe and receive as the
have forthwith granted unto him a writ of Habeas Corpus to be directed generally unto all and every Sheriffs Gaoler Minister Officer or other person in whose custody the party so committed or restrained shall be and the Sheriffs Gaoler Minister Officer or other person in whose custody the party so committed or restrained shall be shall at the return of the said writ and according to the command thereof upon due and convenient notice thereof given unto him at the charge of the party who requireth or procureth such Writ and upon security by his own bond given to pay the charge of carrying back the prisoner if he shall be remanded by the Court to which he shall be brought as in like cases hath been used such charges of bringing up and carrying back the prisoner to be alwayes ordered by the Court if any difference shall arise thereabout bring or cause to be brought the body of the said party so committed or restrained unto and before the Iudges or Iustices of the said Court from whence the same writ shall issue in open Court and shall then likewise certifie the true cause of his deteinour or imprisonment and thereupon the Court within three Court dayes after such return made and delivered in open Court shall proceed to examine or determine whether the cause of such Commitment appearing upon the said return be just and legall or not and shall thereupon doe what to iustice shall appertain either by delivering bailing or remanding the prisoner And if any thing shall be otherwise wilfully done or omitted to be done by any Iudge Justice Officer or other person afore mentioned contrary to the direction and true meaning hereof That then such person so offending shall forfeit to the party grieved his trebble dammages to be recovered by such meanes and in such manner as is formerly in this Act limitted and appointed for the like penaltie to be sued for and recovered Provided alwayes and be it enacted That this Act and the severall Clauses therein contained shall be taken and expounded to extend only to the Court of Star-chamber and to the said Courts holden before the President and Councell in the Marches of Wales and before the President and Councell in the Northern parts And also to the Court commonly called the Court of the Dutchy of Lancaster holden before the Chancellor and Councell of that Court And also in the Court of Exchequer of the County Palatine of Chester held before the Chamberlain and Councell of that Court And to all Courts of like Jurisdiction to be hereafter erected ordained constituted or appointed as aforesaid And to the warrants and Directions of the Councell-board and to the Commitments restraints and imprisonments of any person or persons made commanded or awarded by the Kings Majestie his Heires or Successours in their own person or by the Lords and others of the Privie Councell and every one of them And lastly provided and be it enacted That no person or persons shall be sued impleaded molested or troubled for any offence against this present Act unlesse the party supposed to have to offended shall be sued or impleaded for the same within of two yeares at the most after such time wherein the said offence shall be committed Anno XVII Caroli Regis An Act for the declaring unlawfull and void the late proceedings touching Ship money and for the vacating of all Records and Processe concerning the same VVHereas divers Writs of late time issued under the Great Seal of England commonly called Shipwrits for the charging of the Ports Towns Cities Boroughs and Counties of this Realm respectively to provide and furnish certain Ships for his Majesties service And whereas upon the execution of the same Writs and Returnes of Certioraries thereupon made and the sending the same by Mittimus into the Court of Exchequer Processe hath bin thence made against sundry persons pretended to be charged by way of contribution for the making up of certain sums assessed for the providing of the said Ships and in especiall in Easter Tearm in the thirteenth yeare of the Reign of our Soveraign Lord the King that now is a Writ of Scire facias was awarded out of the Court of Exchequer to the then Sheriffe of BVCKINGHAM-SHIRE against IOHN HAMDEN Esquire to appeare and shew cause why hee should not be charged with a certain summe so assessed upon him upon whose appearance and demurrer to the proceedings therein the Barons of the Exchequer adiourned the same case into the Exchequer Chamber where it was solemnly argued divers dayes and at length it was there agreed by the greater part of all the Justiâ—es of the Courts of Kings Bench and Common Pleas and of the Barons of the Exchequer there assembled that the said Iohn Hambden should be charged with the said summe so as aforesaid assessed on him The maine grounds and reasons of the said Iustices and Barons which so agreed being that when the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger the King might by writ under the Great Seale of England command all his Subiects of this his Kingdom at their charge to provide and furnish such number of Ships with Men Victualls and Munition and for such time as the King should think sit for the defence and safegard of the Kingdome from such danger and perill and that by Law the King might compell the doing thereof in case of refusall or refractarinesse and that the King is the sole Iudge both of the danger and when and how the same is to be prevented avoided according to which grounds reasons aâ— the Iustices of the said courts of Kings Bench CoÌ„mon Pleas the said Barons of the Exchequer having bin formerly consulted with by his Majestis command had set their hands to an extraiudiciall opinion expressed to the same purpose which opinion with their names thereunto was also by his Maiesties command inrolled in the Courts of Chancery Kings Bench Common Pleas and Exchequer and likewise entred among the Remembrances of the Court of Star-Chamber and according to the said agreement of the said Iustices and Barons judgement was given by the Barons of the Exchequer that the said IOHN HAMPDEN should be charged with the said summe so assessed on him And whereas some other Actions and Processe depend and have depended in the said Court of Exchequer and in some other Courts against other persons for the like kind of charge grounded upon the said Writs commonly called SHIPWRITS all which Writs and proceedings as aforesaid were VTTERLY against the Law of the Land Be it therefore declared and enacted by the Kings most Excellent Maiestie and the Lords and Commons in this present Parliament assembled and by the authority of the same That the said charge imposed upon the Subiect for the providing and furnishing of Ships commonly called Ship-money and the said extraiudiciall opinion of the said Iustices and Barons and the said Writs and every of
Court should order and their Keepers commanded to certifie the causes of their detainer no cause was certified but that they were detained by your Maiesties speciall command signified by the Lords of your privie Councell and yet were returned back to severall prisons without being charged with any thing to which they might make answer according to law And whereas of late great companies of Soldiers and Marriners have been dispersed into divers Counties of the Realme and the inhabitants against their wills have been compelled to receive them into their houses and there to suffer them to sojourne against the Lawes and Customes of this Realme ††Compulsive billiting of Soldiers unlawfull and it is very observable that the King at the time of this complaint had warres with France and to the great grievance and vexation of the people And whereas also by authority of Parliament in the five and twentieth yeare of the reigne of King Edw. the third g g 25 Edw. 3. 9. it is declared and inacted that no man should be fore iudged of life or limbe against the form of the Great Charter and the Law of the land And by the said Great Charter and other the Lawes and Statutes of this your Realme no man ought to be adâ—udged to death but by the Lawes established in this your Realme h h No man ought to be adiudged but by the established lawes 9. H. 3. 29. 5. Ed 3. 9. 25. Ed 3 4. 28. Ed. 3. 3. either by the Customs of the same Realme or by acts of Parliament And whereas no offender of what kind soever is exempted from the proceedings to be used and punishments to be inflicted by the Lawes and Statutes of this your Realme Neverthelesse of late divers Commissions under your Majestes great Seale have issued forth by which certaine persons have been assigned and appointed Commissioners with power and authority to proceed within the land according to the Iustice of Martiall Law against such Soldiers and Marriners or other dissolute persons joyning with them as should commit any murther robberie felony mutinie or other outrage or misdemeanor whatsoever and by such summary course and order as is agreeable to Martiall Law and as is used in Armies in time of warre to proceed to the tryall and condemnation of such offenders and them to cause to be executed and put to death according to the Law Martiall By pretext whereof some of your Maiesties Subjects have been by some of the said Commissioners put to death when and where if by the Lawes and Statutes of the Land they had deserved death by the some lawes and Statutes also they mâ—ght and by no other ought to have been iudged and executed ††Marshall law altogether unlawfull in England in times of peace especially and therefore that Soldier of Col. Robert Lilburnes Regiment that was lately shot at the Rendezvouz neere Ware was meerely murthered And also sundry grievous offendors by colouâ— thereof claiming an exemption have escaped the punishments due to them by the Lawes and Statutes of this your Realme by reason that divers of your officers and Ministers of Iustice have uniustly refused or forborne to proceed against such offendors according to the same Lawes and Statutes upon pretence that the said offendors were punishable only by Martiall law and by authority of such Commissions as aforesaid which Commissions and all other of like nature are wholly and directly contrary to the said Lawes and Statutes of this your Realme They doe therefore humbly pray your most excellent Maiestie that no man hereafter be compelled to make or yeeld any gift loane benevolence tax The Petition or such like charge without common consent by act of Parliament And that none be called to make answer or take such oath or to give attendance or be confined or other ways molested or disquieted concerning the same or for refusal thereof And that no Freeman in any such manner as is before mentioned be imprisoned or detained And that your Maiestie would be pleased to remove the said Soldiers and Marriners and that your people may not be so burthened in time to come And that the foresaid Commissions for proceeding by Martiall Law may be revoked and annulled And that hereafter no Commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid lest by colour of them any of your Maiesties Subiects be distroyed or put to death contrary to the lawes and franchise of the land All which they most humbly pray of your most excellent Maiesty as their rights and liberties according to the Lawes and Statutes of this Realme And that your Maiestie would also vouchsafe to declare that the awards doings and proceedings to the prejudice of your people in any of the premisses shall not be drawn hereafter into consequence or example And that your Maiestie would be also graciously pleased for the future comfort and safety of your people to declare your royall will and pleasure That in the things aforesaid all your officers and Ministers shall serve you according to the Lawes and Statutes of this Realme ††All the administrators of the law are to execute their places according to the law and not otherwise as they tender the honour of your Maiestie and the prosperity of this Kingdome Which Petition being read the second of Iune 1628. The Kings answer was thus delivered unto it THe King willetâ— that right be done according to the Lawes and customes of the Realme And that the Statutes be put in execution that his Subiects may have no cause to complaine of any wrong or oppression contrary to their iust Rights and Liberties to the preservation whereof he holds himself in conscience as well obliged as of his Prerogative But this answer not giving satisfaction †And the reason was because in this his first answer he doth not grant that the things claimed in the Petition as they are laid down are the lawes rights and liberties of England and so had left it in the Iudges breasts to have given their Iudgements as well against as with the Petition but his second answer let right be done as is desired is full to the purpose the King was againe petitioned unto that he would give a full and satisfactory answer to their Petition in full Parliament Whereupon the King in person upon the seventh of Iune made this second Answer My Lords and Gentlemen THe answer I have already given you was made with so good deliberation and approved by the iudgements of so many wise men that I could not have imagined but that it should have given you full satisfaction but to avoid all ambiguous interpretations and to shew you that there is no doublenesse in my meaning I am willing to please you in words as well as in substance Read your Petition and you shall have an answer that I am sure will please yoâ— And then causing the Petition to
other Court shall directly or indirectly or by any art shift colour or device have take or receive any money fee reward covenant obligation promise agreement or any other thing for his report or Certificate by writing or otherwise upon pain of the forfeiture of 100. l. for every such Report or Certificate and to be deprived of his office and place in the same Court the one moity of the said forfeitures to be our Soveraign Lord the King his heires and successors the other moity to the party grieved which will sue for the same at any time during the said suit or within one yeare after the same cause discontinued or decreed and in his default of such suit to him or them that will sue for the same by originall Writ Bill plaint or Information in his Majesties high Court of Star Chamber or in any his Majesties Courts of Record at Westminster in which suit by Writ Bill plaint or Information no wager of Law Essoin Priviledge Supersedeas Protection or any other delay shall be suffered or admitted Provided neverthelesse that it shall be lawfull for the Clerke to take for his paines for writing of every such Report or Certificate 12. d. for the first side and 2. for every side after and no more upon paine to forfeit 10. s. for every peny taken over and above the said summe to be had and recovered as aforesaid Having given you the most materiall Statutes that I conceive at present makes for your most advantage that I can find in the Statutes at large I shall here insert three or foure Statutes made this present Parliament that in my judgement is extraordinary well worth your knowledge and understanding the first thus followes Anno 17. Caroli Regis An Act for regulating of the Privie Councell and for taking away the Court commonly called the Star Chamber WHereas by the GREAT a a 9. H. 3. 29. CHRTER many times confirmed in Parliament It is inacted that no freeman shall be taken or imprisoned or disseised of his free hold or Liberties or free Customes or be Outlawed or exiled or otherwise destroyed and that the King will not passe upon him or condemne but by lawfull judgement of his Peers or by the Law of the Land And by another Statute made in the b b 5. E 3. 9. fifth yeare of the Reigne of King Edward the third It is inacted That no man shall be attached by any accusation nor fore-judged of life or lim nor his Lands Tenements Goods nor Chattels seised into the Kings hands against the forme of the GREAT CHARTER and the law of the land And by another Statute made in the five and twentieth year c c 25 E. 3. 4. of the reigne of the same King Edward the third It is accorded assented and established that none shall be taken by petition or suggestion made to the King or to his Councell unlesse it be by Indictment or Presentment of good and lawfull people of the same Neighbourhood where such deeds be done in due manner or by Processe made by Writ originall at the Common Law and that none be put out of his Franchise or Free-hold unlesse he be by duty brought in to answer and fore-judged of the same by the course of the Law and if any thing be done against the same it shall be redressed and holden for none And by another Statute made in the 28 year d d 28. E. 3. 3. of the Reign of the same King Edward the third It is amongst other things inacted that no man of what estate or condition soever he be shall be put out of his Lands or Tenements nor taken nor imprisoned nor disinherited without being brought in to answer by due processe of Law And by another Staâ—â—te made in the 42. yeare e e 42. Ed. 3. 3. of the Reign of the said King Edward the third It is enacted that no man be put to answer without presentment before Iustices or matter of Record or by due Processe and Writ originall according to the old Law of the Land and if any thing be done to the contrary it shall be void in Law and holden for error And by another Statute made in the 36. year of f f 36. Ed. 3. the same King Edward the third It is amongst other things inacted That all Pleas which shall be pleaded in any courts before any the Kings Iustices or in his other places or before any of His other Ministers or in the Courts and places of any other Lords within the Realm shall be entred and enrolled in Latine And whereas by the Statute made in the third yeare of King Henry the seventh power is given to the Chancellour the Lord Treasurer of England for the time being and the Keeper of the Kings Privie Seale or two of them calling unto them a Bishop and a Temporall Lord of the Kings most honourable Councell and the two chiefe Iustices of the Kings Bench and common Pleas for the time being or other two Iustices in their absence to proceed as in that Act is expressed for the punishment of some particular offences therein mentioned And by the Statute made in the one and twentieth yeare of King Henry the eighth The President of the Councell is associated to ioyne with the Lord Chancellour and other Iudges in the said Statute of the third of Henry the seveth mentioned But the said Iudges have not kept themselves to the points limited by the said Statute but have undertaken to punish where no law doth warrant and to make Decrees for things having no such authority and to inflict heavier punishments then by any law is warranted And forasmuch as all matters examinable or determinable before the said Iudges or in the Court commonly called the Star-Chamber may have their proper remedy and redresse and their due punishment and correction by the Common Law of the Land and in the ordinary course of justice elsewhere And forasmuch as the reasons and motives inducing the erection and continuance of that Court doe now cease and the proceedings Censures and Decrees of that Court have by experience been found to be an intolerable burthen to the Subiect and the meanes to introduce an Arbitrary power and Government And forasmuch as the Councell Table hath of late times assumed unto it self a power to intermeddle in Civill causes and matters only of private interest between party and party and have adventured to determine the Estates and Liberties of the Subiect contrary to the Law of the Land and the rights and priviledges of the Subiect by which great and manifold mischiefes and inconveniencies have arisen and hapned and much incertainty by meanes of such proceedings hath been conceived concerning mens rights and estates For setling whereof and preventing the like in time to come Be it Ordained and Enacted by Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Iurisdiction power and authoritie belonging unto or exercised in
Atkins before you to answer this Petition to the end according to your many Declarations Promises and Protestations iustice may not be obstructed or your Petitioner denyed the benefit of the law or priviledge of a free borne Denizon And the said Barons receive such condigne punishment for their uniust dealing and proceedings against your Petitioner as shall seeme meet and agreeable to the wisedome and iustice of this honourable House The like not any of the Iudges in the worst of times durst ever doe that ever your Petitioner heard of And your Petitioner if he may be protected and allowed by this honourable House to prosecute this Petition he will give securitie to make good the contents thereof And as in duty bounden your Petitioner shall ever pray c. Will. Brown Take notice and marke it well that though tyths are by law to be sued for in Ecclesiasticall Courts only yet trebble damages for none payment of tyths are to be sued for by the same Statute of the 2. and 3. Ed. 6 13. in Civill Courts at the Common Law and therefore the best plea to a bill of trebble damages is that you owe the Parson c no tyths at all and put him to prove the first Here you see what gallant Iustice is to be found amongst the Iudges at Westminster Hall that the pleaders of honest causes cannot be suffered to presse the law freely for their Clyents but must be threatned and commanded to hold their peaces before they have pressed fully either law or reason for those that hire them to be their mouths to doe it for them Is this to performe their oath which you may read before pag. 10. In which they sweare to doe equall law and execution of right to all kinds of men rich and poore without having regard to any person or persons whatsoever And that they shall deny to no man common right by the Kings letters nor none other mans nor for no other cause and in case any letters or commands shall come to them contrary to the law that they shall doe nothing by such letters or commands but proceed to execute the law notwithstanding Or is not this their dealing with Mr. Brown and his Councell a cleare demonstration of their breaking their Oaths and absolutely forswearing themselves And therefore seeing neither Mr. Brown not no man else that complains to the parliament against the injustice of the Iudges can get the least justice against them is not this and other of their visible breaking of their Oaths a true and legall cause to indict them for perjury upon which if conviction follow they are ipso facto disabled for ever to sit Iudges any more or to be witnesses in any causes whatsoever betwixt party and party For this is to be taken notice of that if a Iury bring in a false verdict against the expresse evidence given in unto them that thereupon by law they are to have their houses rased down to the ground and never to be built againe their trees puld up by the roots their ground to lye follow and wast without tillage or use their names and their childrens to be infamous reproachfull and contemptable c. And therefore without doubt the Iudges punishment for palpable iniustice must needs be much more then theirs And an excellent piece of justice and worth the highest commendation it was in King Alfred to hang 44 Iustices in one year as murtherers for their false judgments * See Andrew Horns mirror of iustice in English chap. 5. Sect. 1. pag. 239 240 241. 242. c printed for Maâ— Walbank at Grays Inne gate 1646 where all their crimes are set down which book is most extraordinarily well worth your reading But seeing the Parsons Vicars curates cannot recover their tyths by law they have unjustly illegally got up a custom to come or send their illegall Agents into mens grounds or houses to take away their goods and chattells and men are so foolish as to let them although by law if any man under any pretenc of authority whatever shall dare to endeavour by force to come into a free-mans house unlesse it be under pretence of Treason or Felony committed or suspition of Treason or Felony or to serve an execution after Iudgement for the King the free man may stand upon his guard as against so many Theeves and Robbers and if he shoot or kill them every one I know nothing to the contrary but they have their mends in their own hands and they nor none for them can iustly requâ—e any of him or them that so in his or their own legall defence destroyes them And if they take away your goods as usually they doe you have your remedy at law by way of Replevie to get * Which writs of Replevy you may have out of the Cusitore office belonging to every County but get at one and the same time a writ of Replevin a writ of Al as and a writ of Pluries which last Writ runs with a penaltie and if the Sheriff doe not execute it there lyes an attachment against him and in case he return that the goods are sold and gone before he could repleve them or drove into another County then you may have a Capias in withernam to distrain and take the parties own goods that caused the first goods to be distrained or any of those that had a hand in distraining and no supersedeas whatsoever will lye to controule or dam the writ or hinder the execution of it which writs with all other in force you may read in the Law book called the Register by the help of which you may make all the Parsons in England goe whistle for their Tyths Which Register doth very well deserve your care and pains by authority to be translated into English your goods againe putting in baile to the Sheriffe to answer the law against him that distrained your goods so you shall bring him to a tryal at law to prove his title or clame to your goods and this I conceive to be cleare from the Statutes of Marle bridge in the 52. H. 3. Anno 1267. Chap. 1 2 3 4. 15 21. and 3. 8. 3. Chap. 17. Compared with Sir Edward Cooks Exposition upon those severall Statutes in the 2. part of his Institutes fol. 103 104 105 106 107. 131 132 133. 139 140 141. 193 194. and his discourse in his first part Institutes lib. 2. chap. 12. Sect. 219. fo 143. But that you may not rest in an implicite beliefe I shall give you the fore mentioned Statutes verbatum which thus followeth Chap. 1. fol. 16. The penaltie for taking a distresse wrongfully WHereas at the time of a commotion late stirred up within this Realme and also sithence many great men and divers other refusing to be justified by the King and his Court like as they ought and were wont in the time of the Kings noble progenitors and also in his time but took great revenges and distresses
Right in the third of the King and the Statutes that abolished the Starre-Chamber and Ship money made this present Parliament and Lievtenant Col. Iohn Lilburnes Book called the Resolved mans Resolution p. 2. 3 8 9. and his Grand Plea against the Lords pag. 7 8 9. error Therefore Sir for you who are a Generall of an Armie and other of your Marshall Officer's who are are no Civill Court of Iustice nor authorized with the least legall power in the world to administer Iustice and execute the law of the land upon or unto any of the Commoners of England to dare or presume to restraine imprison trie or meddle with me as you have done who am in no other capacitie in the world but barely and altogether as a Commoner of England is the height of arbitrary tyranny injustice and * * Well saith Sir Edward Cook in the 2. part of his Institutes fol. 48. that every oppression against law by colour of any usurped authority is a kind of destruction for when any thing is forbidden all that tends to it is also forbidden and it is saith he the worst oppression that is done by colour of justice See also Lib. 10. fo 74. in the case of the Marshalsea oppression and an absolute destruction of the very fundamentall Lawes of England the bare endeavouring of which cost the Earl of Strafford his head And what the doome of him is that destroyes the fundamentall Lawes of the Land I shall give you out of the very words of your own friend Mr. St. Iohn in his Argument of law concerning the Bill of Attainder of high Treason of Thomas Earl of Strafford at a conference in a Committee of both Houses of Parliament printed by G. M. for John Bartlet at the signe of the gilt Cup neer St. Austins Gate in Pauls Church Yard 1641 who in the 70. page thereof saith That the destruction of the Lawes dâ—ssolves the arteries and ligaments that hold the body together â—he that takes away the Laws takes not away the allegiance of one Subiect alone but of the whole Kingdome it was saith he made treason by the Statute of the 13. El. for her time to affirme that the Lawes of the Realme doe not bind the discent of the Crowne no Law no descent at all No Laws saith he no Peerage no ranks or degrees of men ††And therefore you with your dealings with me that am meerly a free Commoner of England and so not in the least under your Marshall Discipline but solely and only under the discipline of the known declared and established Lawes of England by your arbitrary tyrannicall actings upon me have absolutely as much as in you lyes destroyed the fundamentall Lawes of England and therefore are as absolute Hedge breakers and Levellers as ever were in this Kingdome the same condition to all It 's treason to kill a Iudge upon the Bench this kills not the Iudge but the Iudgement And in page 71. he saith Its felony to imbezell any of the Iudiciall Records of the Kingdome this viz. the destruction of the law sweeps all away and from all It s treason to counterfeit a twenty shilling piece here is a counterfeiting of the Law we can call 〈◊〉 the counterfeit not the true coyne our own It s treason to counterfeit the great Seale for an Acre of Land no property hereby viz. the destruction of the Law is left to any Land at all nothing treason now either against King or Kingdom no law to punâ—sh it And therefore I advise you as a friend to take heed that you goe no further on in your illegall arbitrary tyrannicall and law-destroying practises with and towards me least when for your own lives you claime the benefit of the Law you be answered in the words of your foresaid friend in pag. 72. That he in vaine calls for the help of the Law that walkes contrary unto Law and from the Law of like for like he that would not have others to have law why should he have any himself why should not that be done to him that himself would have done to another it is true saith he Ibid. we give law to Hares and Deers because they be beasts of chase but it was never accounted either crueltie or foule play to knock Foxes and Wolves on the head as they can be found because these be Beasts of Prey the Warrener set traps for Poulears and other vermin for preservation of the Warren And in pag. 76. he saith in the 11. R. 2. Trisilian And some other attainted of treason for delivering opinions in the subvertion of the Law and some other for plotting the like * * Read also to this purpose Mr. Iohn Pyms Speech against the Earle of Strafford the 12. of April 1641. printed for Iohn Battler but especially p. 5. 6. 8. 9. 13. 18. 23. 24. But if you shall object that you deale with me as you are a Generall and Officers of an Army by Marshall Law for endeavouring to make mutinies or tumults in your Armie or by biâ—â—â—ing and defaming your reputations and so drawing your Soldiers from their affection and obedience unto you I answer in the first place there can in this Kingdome be no pretence for Martiall Law but when the Kingdome is in a generall hurly burly and uproare and an Armie or Armies of 〈◊〉 enemies in the Field prosecuting with the sword the destruction of the whole and thereby stopping the regular and legall proceedings of the Courts of Iustice from punishing offenders and transgressors But now there being no Armie nor Armies of declared enemies in the field nor moâ—â— prisons in the possessions of any such men nor no generall hurly-butlies and uproars by any such men in the Kingdome but all such as are visibly subdued and quieted and all Courts of justice open and free to punish offenders and transgressors and therefore even to the Armie is selfe and the Officers and Soldiers therein there is no reason or ground for exercising of Martiall Law much lesse over Commoners that are not under the obedience of the Army which is my case And that in time of peace there neither is nor can be any ground of exercising and executing of Martiall Law I prove out of the Petition of Right which was made in the third yeare of the present King and is printed in Pultons Collection of the Statutes at large fol. 1431 1432. * * And in the 1. 2. 3. pages before which expresly saith that by authority of Parliament in the 25. year of the Reign of King Edward the 3. it is declared and enacted That no man shall be forejudged of life or limb against the forme of the great Charter and the law of the land and by the said great Charter and other the lawes and Statutes of this Realme no man ought to be adiudged to death but by the law established in this Realm ††See the 9. H. 3. 29. 5. Ed. 3.9
Chap. 3. The said Charters shall be read in Cathedrall Churches twice in the yeare ANd we will that the same Charters shall be sent under our Seale to Cathedrall Churches throughout our Ralme there to remain and shall be read before the people two times by the yeare 28. Ed. 3. 1. Chap 4. Excommunication shall be pronounced against the breakers of the said charters ANd that all Arch Bishops and Bishops shall pronounce the sentence of Excommunication against all those that by word deed or councell doe contrary to the foresaid Charters or that in any point break or undoe them And that the said curses be twice a yeare denounced and published by the Prelates aforesaid And if the same Prelates or any of them be remisse in the denunciation of the said sentences the Arch Bishops of Canterbury and Yorke for the time being shall compell and distrain them to the execution of their dutyes in forme aforesaid The 28. of Edward the 1. Chap. 1. fol. 80. A confirmation of the great Charter and the Charter of the Forest THat is to say That from henceforth the great Charter of the Liberties of England granted to all the Commonalty of the Realme and the Charter of the Forest in like manner granted shall be observed kept and maintained in every point in as ample wise as the King hath granted renewed and confirmed them by his Charters And that the Charters be delivered to every Sheriffe of England under the Kings Scale to be read foure times in the yeare before the people in the full County that is to wit the next County day after the Feast of St. Michael and the next County day after Christmas and at the next County after Easter and at the next County after the Feast of St. Iohn And for these two Charters to be firmely observed in every point and article where before no remedy * * Chap. 8. and 13. was at the Common Law there shall be chosen in every Shire Court by the Commonalty of the same Shire three substantiall Men Knights or other lawfull wise and well disposed persons which shall be Iustices sworne and assigned by the Kings Letters Patents under the great Scale to heare and determine without any other Writ but only their Commission such Plaints as shall be made upon all those that commit or offend against any Point contained in the foresaid Charters in the Shires where they be assigned as well within Franchises as without And as well for the Kings Officers out of their places as for other and to heare the Plaints from day to day without any delay and to determine them without allowing the delayes which be allowed by the Common Law And the same Knights shall have power to punish all such as shall be attainted of any Trespasse done contrary to any point of the foresaid Charters where no remedy was before by the Common Law as before is said by Imprisonment or by ransome or by Amerciament according to the Trespasse c. The 28 of Edward the 1. Chap. 8. fol. 83. The Inhabitants of every County shall make choise of their Sheriffes being not of Fee Stat. 9. E. 2. Stat. 14 E. 3. 7. 28. Ed. 1. 1. THe King hath granted unto his people that they shall have election of their Sheriffes in every Shire where the Shrivalty is not of fee if they lift Chap. 13. The 28. of Edward the 1. Chap. 13. fol. 83. What sort of persons the Commons of Shires shall chuse for their Sheriffes ANd for as much as the King hath granted the election of Sheriffes to the Commons of the Shire the King will that they shall chuse such Sheriffes that shall not charge them and that they shall not put any Officer in authority for rewards or bribes And such as shall not lodge too oft in one place nor with poore persons or men of religion St. 9. E. 2. The Statute of Sherifes The 34. Edward the 1. Chap 4. fol. 91. All Lawes Liberties and Customes confirmed WE will and grant for us and our heires that all Clerkes and lay men of our land shall have their lawes liberties and free Customes as largely and wholly as they have used to have the same at any time when they had them best And if any Statutes have been made by us or our ancestors or any customes brought in contrary to them or any manner article contained in this present Charter we will and grant that such manner of statutes and customes shall be void and frustrate for evermore The 34. of Edward the 3. Chap. 6 fol. 92. The curse of the Church shall be pronounced against the breakers of this Charter ANd for the more assurance of this thing we will and grant that all Arch Bishops and Bishops for ever shall read this present Charter in their Cathedrall Churches twice in the year and upon the reading hereof in every of their Parish Churches shall openly denounce accursed all those that willingly doe procure to be done any thing contrary to the tenour force and effect of this present Charter in any point and article In witnesse of which thing we have set our Scale to this present Charter together with the Seales of the Arch Bishops Bishops c. which voluntarily have sworn that as much as in them is they shall observe the tenour of this present Charter in all causes and articles and shall extend their faithfull aid to the keeping thereof c. The 1. of Edward the 3. Chap. 5. fol. 115. None shall be compelled to goe to war out of the Shire where he dwelleth But c. ITem the King will that no man from henceforth shall be charged to arme himself otherwise then he was wont in the time of his progenitors Kings of England And that no man be compelled to goe out of his shire but where necessity requireth and suddain comming of strange enemies into the Realme And then it shall be done as hath been used in times past for the defence of the Realme St. 15. Ed. 3. 7. St. 4. H. 4. 13. 25. Ed. 3. 8. The 2. Edward the 3. Chap. 8. fol. 118. No commandement under the Kings seale shall disturb or delay justice ITem it is accorded and established that it shall not be commanded by the great Seale nor the little Seale to disturb or delay common right and that though such commandements do come he Iustices shall not therefore leave to doe right in any point St. 9. H. 3. 29. St. 5. Ed. 3. 9. St. 14. Ed. 3.14 The 4. of Edward the 3. Chap. 2. fol. 120. The authority of Justices of Assise Gaole delivery and if the peace ITem it is ordained that good and discreet persons other then of the places if they may be found sufficient shall be assigned in all the Shires of England to take Assises Iuries and certifications and deliver the Gaoles And that the said Iustices shall take the Assises Iuries and certifications and deliver the Gaols at the least three
and preaching according to the Canons and constitutions of the Bishops and their Clergie * * See the 13. Eliz. chap. 12. And what composition rate for tythes or other oblations this Defendant or any of the said Inhabitants have payed unto the said Complainant the same was unduly exacted by the Complainant so as the said complainant hath no right nor title by colour of any such prescription or custome to have and demand the said composition rate for the premises or any of them on this Defendant as in the said bill is set forth and demanded for that by authority of this present Parliament the function and Miniministrie of Bishops Parsons and Vicars are abrogated and avoided * * Hierarchy exterpated root and branch and government by Prelacy whereof Vicars be part See the Ordinances of the 9. of Octob. and the 16. Novemb. 1646 2. part book decl fol. 922. 932. see also the Covenant And likewise the book of Common prayer and the administring of the Sacraments and preaching according to the Bishops Canons and injuctions by authority of this present Parliament utterly taken away and disannulled ††See the Ordinances of the 3. Ian. 1644. and 23. August 1645. Parl. Decl. 2. part fol. 715. 716. And this Defendant doth conceive no tyth or composition rate for tyth nor any other oblations for Poultrie are due by law but have been taken no otherwise then by Iewish or Popish institution * * Tyths are not due iure divino and at this present there is no law to compell their payment Cook Rep. 2. Quen d. Winchester and provision as by the Statute made for the payment of tythes and oblations whereunto reference being had will appeare the same being made only for the maintenance of the Popish and prelaticall Clergie and Ministrie and no other And he this Defendant beleeveth is to be true and hopeth to prove that neither by the law of God nor man any tyths composition rates for tyths or other oblations for poultrie ought to be paid to any persons or Vicars or other Ecclesisticall Minister or Ministers whomsoever for this Defendant saith that by the Parliaments Protestation made by authority of this present Parliament the 5. day of May 1641. against popery and popish innovations all Lawes Customes Acts and Ordinances for the payment of tyths or manner of tything raâ—e or composition for tyths or other oblation to any parson or Vicars of any parish within this Kingdome their names and offices being Popish and Antichristian the same having no foundation in the word of God are utterly void and null And this Defendant denyeth that he ever did nor now doth combin practice or confederate with the other Defendants named in the said Bill or any of them or with any other person or persons whatsoever to wrong the said Complainant as in the said Complainants bill is untruly suggested And without that this defendant had depastured within the said Parish eight and twenty Cowes within the said parish as in the Complainants bill is alledged or that the Complainant is Debtor or Accountant to the King or that the said Complainant is unlawfully intituled to have receive and take the Viccarage tyth or the composition rate for tyth and the said oblations as were formerly payed to the POPISH VICCARS HIS PREDICESSORS if in case the same had been payed as in the said bill is alledged And without that any other matter or thing in the said bill of complaint contained materiall or effectuall to be answered unto and not herein fully answered unto confessed and avoided traversed or denyed is true therefore this Defendant humbly prayeth to be dismissed out of this honourable Court with his reasonable costs and expences in this behalfe wrongfully had and sustained Mr Fage Senior Councellor But what just proceeding Mr. Brown had upon this Plea before the present Barons of the Exchequer his own Petition to themselves and to the House of Commons against them will very fully demonstrate the first of which thus followeth To the Right Honourable His Majesties Barons of the Court of Exchequer The humble Petition of William Brown SHEWETH THat Iosua Hoyle now Vicar of the Parish of Stepney ever since he got the Vicarage hath been very troublesome and vexatious to your Petitioner and other the Parishioners there endeavouring by illegall forcible and indirect wayes and meaness to extort from them tythes and certaine manner of tything which by law he could not demand nor they compelled to pay as by their learned councell they are informed and hope to prove if they may have the benefit of the Law which is the inheritance of every free-borne English-man That under colour of the Ordinance for tythes the said Mr. Hoyle did take from your petitioner goods of a considerable value for which your petitioner hath no satisfaction That the said Mr. Hoyle the more to vex your petitioner causelesly served your petitioner with a Subpena to answer a bill in the Court of exchequer for pretended tythes and other duties to which Bill your petitioner in Michaelmas terme last answered by advise of his Councel learned in the Law divers other of the said parishioners being named defendants in the said Bill but not served till Easter terme last of purpose to put them to the more charges and weary them out with Multiplicity of Suits and unnecessary Expences in Law That the said Mr. Hoyle procured an Order of this Court that your Petitioner should shew cause by a certaine day in the last Terme why your petitioners Plea and Answer should not be taken of the file as scandalous and your Petitioner ordered to pay cost and make a further and better answer That your petitioner in obedience to the order of the Court by his councell Mr. Norbery and Mr. King attended several dayes to shew cause for allowing his plea and answer but when that cause was called upon your petitioners Councellours were not suffered to shew forth to the Court the sufficiencie in Law of your petitioners said plea and answer Baron Atkins telling your petitioners counsellers that Mr. Fage who subscrib'd the same his hand should never be received again in that court further threatn'd your petitioners councellours saying that if they or any other Councellours should appeare in any such cause should be debarred from pleading in that Court whereupon though the said Mr. Norbery Mr. King were prepared able and ready had undertaken to maintain your petitioners said plea and answer to be good and sufficient in law was so overawed by Baron Atkins that for feare to offend him and the Court they were silenced and so without further debate or Councel heard your petitioners Plea was over ruled and this Answer Judged scandalous and insufficient and your petitioner further ordered to pay forty shillings cost and make further answer That your petitioner is a free-man of England and by the great Charter of Liberty ought to be under the
protection of the Law and ought not to be condemned unheard neither agreeth it with the honour and justice of this Court to deny Councell to plead and open their Clyents cases as was done in your petitioners case which your petitioner hopes you will rectifie and alow his Councel to be reheard and to set forth the sufficiencie in Law of his Plea and Answer whereby your petitioner may not have cause or occasion to Appeale from this Court or complaine of you to the Parliament for obstructing of Justice which if your petitioner receive not timely redresse and reliefe in the Promises he must be constrained to do That without ever any order or further processe serving the said Mr. Hoyle for want of further answer hath prosecuted severall processes of contempts against your petitioner and threatned to lay your petitioner in Goale upon a Commssion of Rebellion for the same and hath served your petitioner with a Subpena for forty shillings cost upon your petitioners first plea and answer which Mr. Hoyle will without doubt do if your honour give not present order for stay of further proceedings upon the said last Subpena and processe of contempt already taken out against your petitioner Your Petitioner therefore humbly prayeth that you wil be pleased for the love and honour of justice and removeing the cause of your petitioners appeale from this Court and complaining of you that you will give direction for stay of the said cost and proceedings upon the said processes of contempts against your petitioner and that you wil declare and order that your Petitioners councel may be reheard without check or offence and allowed freely to shew out to the Court the sufficiencie in Law of your petitioners plea and answer to the end there may not be a failer of justice through you and your petitioner left without relief or remedy by being denied to be heard upon the mirit and equity of his cause according to Law which in the worst of times by the worst Iudges was never done to any either in the case of ship-money or any other cause as Burton Prinn and Bastwicks cases all which your petitioner refereth to your honourable consideration And prayeth as before he hath prayed c. William Browne To the right honourable the Commmons assembled in Parliament the humble petition of Will. Brown of Stepney alias Steben heath in the County of Midlesex SHEWETH THat Josua Hoyle Vicar of the parish of Stepney aforesaid in Michaelmas terme last exhibited his bill in the Court of exchequer against your petitioner and divers other parishioners there for substraction of tythes to which bill your petitioner by his learned councell pleaded and answered the same terme but the said Mr. Hoyle obtained an order from that Court for your petitioner to shew cause why his plea and answer should not be taken of the file as scandalous That your petitioner according to the order of that Court the 18. May last by his counsell Mr. NORBERY and Mr. KING offered to the Court to maintaine his said plea and answer to be good and sufficient in Law but Baron Atkins one of the Barons of that Court would not suffer your petitioners councel to open your petitioners cause in a threatning manner telling them that the Councellour who subscribed your petitioners Plea and answer should never be allowed in that Court and if they meaning Mr. NORBERY and Mr. KING or any other Councellour did appeare in any such cause they should never againe plead in that Court and so your petitioners said councell were overawed and silenced that without further heareing or debate the Court adjudged your petitioners plea and answer scandalous and futher ordered Mr. Fage who signed the same his hand should never be allowed to any pleadings in that Court and your petitioner to pay forty shillings cost to Mr. Hoyle as by the order in the Court in that cause will appeare which doing of the said Baron Atkins and the said last recited Order are contrary to the rule of justice and the great Charter of Liberty wherein it is said Iustice and Right shall de denied to no man That the said Mr. Hoyle since without ever serving the said Order upon your Petitioner having procured severall processes of contempts against him for want of further answer and served him with a Subpena for the 40. s. cost your petitioner thereupon having petitioned the Barons of that Court for justice and to have libertie to shew forth to the Court the sufficiencie in law of the said plea and answer which Mr. NORBERY and Mr. KING had before undertaken to your petitioner to doe and offered to the Court if they might have been heard as they were not to have maintained for good and sufficient in law which petition hereunto annexed Baron Trevers having read and acquainted his Brother Atkins with the contents thereof Baron Atkins replyed and said let Brown complain if he will I have done him justice his businesse shall be no more heard And thus your Petitioner being deprived and destitute of all meanes of obtaining right and justice in that Court is constrained for his own safetie to forsake his own house and familie and live as an exile and fugitive Mr. Hoyle threatning to cast him into prison upon the said Barons Order which doubtlesse he will doe to your petitioners undoing unlesse your petitioner be protected by the justice of this honourable house That your petitioner hath largely and many wayes manifested his good affection to the Parliament in his free and voluntary gifts and contributions over and above his abilitie and by his ready payment of all taxes and assessements having long voluntarily served the Parliament in this war against the enemy to the often endangering his life and the much impoverishing his estate having lost 16. Horses in the Parliaments service for which he hath not had one penny satisfaction besides almost 200. l. due to him in Arrears for his service as a Wagoner That as your Petitioner is informed Mr. Hoyle by law cannot sue your petitioner in any Court for substraction of Tyths then in the Court Christian so called * * 2. 3. Ed. 6. 13. Coo. li. 2. fol. 43. the same being now taken away by authority of Parliament * * See the act of the 17. of C.R. for abolution of Ecclesiastical jurisdiction And so Mr. Hoyle if in case the same were due as they are not he hath no meanes or the recovery of the same but by the Ordinance of this present Parliament which your petitioner did never oppose whensoever the said Mr. Hoyle did take your petitioners goods upon the same as sometimes he did amounting to a considerable value Your Petitioner therefore humbly prayeth this honourable House will be pleased to take your Petitioner under protection to stay the contempts and illegall proceedings of Mr. Hoyle in that Court against your petitioner and to call the said Barons of the Exchequer and in particular Baron
had beene Engaged to oppose them pay they could not have cashiered one Soldier that joyned in the Engagement for they promised each to other not to suffer themselves to be divided before the ends of their Engagements was accomplished 2. The station of the Members of this new councel in this Army was different from the station of al Mâ—mbers of former Councels by the Engagement there was to be two Soldiers in no office out of every Regiment to have voices equall to the Generall himself in all votes a thing never practised nor heard of in an Army serving the will of a State 3. The number of the Members of this Councel is different from al customes and rules of Martiall Discipline In this Councel there was to be but foure of every Regiment with the General Officers which concurred thus this Councel differed from all Customes in any Army in respect of the Members whereof it was constituted 2. This new Councell differed from the rules of Warre in the manner of its constitution this was not to be constituted by the Gens wil or according to the degrees or offices of men in thâ— Army but in a Parliamentary way by the Soldiers free election the Gen. is bound from calling an Officer to the Councell unlesse he be chosen by his Regiment 3. Reason proving the dissolution of Martiall Government in the Army The Gen. in associating with the Soldiers did in the very Engagement give away all his power of exercising Martial Disciplin he engaged to them they to him that they would not suffer themselves to be disbanded or devided till the ends of their uniting were obtained Hereby he divested himselfe of his arbitrary power of cashiering Officers and Soldiers at his pleasure the cashiering one Officer or Soldier which associated with the body of the Army in the engagement is a disbanding at deviding on part of the Army from another which he the Army mutually â—â—ciprocally engaged neither to attempt nor suffer likewise by this engagment he divested himself of power to command the Soldiers to march to what distance he pleaseth one from an other this is an other kinde of dividing the Army which he enaged neither to effect nor suffer 4. Reason proving the dissolution of the Government of the Army by Law Martiall The whole Army by agreement or joynt consent cashiered all Officers at New maket Heath that would not associate with them and engage to stand for common right and freedom though against the Parliament and so they houted divers Officers out of the field unhorsed some and rent their cloathes and be at them this in the face of the Gen. al which acts weare death by Martiall Law but this was an actuall declaration that the Army did admit of Officers by mutuall agreement onely and therefore Government by law Martiall was dissolved unlesse it had been established by mutuall consent throughout the Army for Officers at that time being only admitted by mutuall consent they could have no power but what was betrusted to them by the Soldiers 2. Plea But in case the Government of the Army by Law Martiall had not been dissolved by a mutuall ingagement yet the very being of peace did dissolve its for in the Petition of * See Poultons collection of statutes p. 1431. 1432. Right its declared that â—â— person ought to be adjudged by Law Martiall except in time of Warre and that all Commissions given to execute Martiall Law in time of peace are contrary to the Lawes and Statutes of the Kingdome and it was the Parliaments complaint that Martiall Law was then commanded to be executed upon Soldiers for robbery mutiny or murther And it was setled as the undoubted right of every English man that he should be punishable only in the Ordinary Courts of justice according to the Lawes and Statutes of the Kingdome By all this it appeares that it is illegall and uniust for the Officers of the Army to try or punish any Agent or other by Law Martial upon pretence of Muteny or any other offence the whole Army stand as Englishmen and if they offend are not exempted from the proceeding against them and punishments to be inflicted upon them by the lawes and statutes of the Kingdome and therfore cannot in Iustice be subject also to law martiall so that all Agents and Soldiers now accused for mutiny for their late prosecution of publick freedome according to the agreement of the people without their Officers content shall unworthily betray their owne and their Countreys Liberty if they shall submit to be tryed in any other way then by the knowne Lawes and statutes of the Land The forementioned Plea of William Thompson who was lately a Corporal in Colonell Whaleyes Regiment and was formerly cashiered at the head thereof and yet after that imprisoned and indeavoured to be hanged for his honesty thus followeth Englands Freedome Souldiers Rights Vindicated against all Arbitrary uniust Invaders of them and in partcicular against those new Tyrants at Windsore which would destroy both under the pretence of Marshall Law OR The just Declaration Plea and Protestation of William Thompson a free Commoner of England unjustly imprisoned at Windsore Delivered to his Excellency Sir Thomas Fairfax and that which is called his Councell of Warre the 14. of December 1647. Unto which is annexed his Letter to the Generall wherein the said Plea was inclosed Also a Petition of the rest of his Fellow-Prisoners to his Excellency May it please your Excellency I Am by birth a free Commoner of England and am thereby intailed or intituled unto an equall priviledge with your self or the greatest men in England unto the freedome and liberty of the Lawes of England as the Parliament declares in their Declaration of the 23. of October 1642. 1 part book Decl. pag. 660. And the 29. Chap. of Magna Charta expresly saith That no man shall be taken or imprisoned or be disseised of his Freehold or Liberties or free customes or be outlawed or exiled or any other wayes destroyed nor pest upon nor condemned but by the lawfull Iudgement of his Peers or Equalls and that by due course or processe of the Law of the Land ††See Sir Edw. Cooks Exposition hereof in his 2. part Institut fol. 46 47 50 51. which expresly saith that no man shall he taken or restrained of his libertie by petition or suggestion made unto whomsoever in authority unlesse it be by indictment or presentment of good and lawfull men where such deeds be done and that no man whatsoever be put to answer any crime whatsoever without presentment before Iustices or matter of record or by due processe and writ orinall according to the old law of the land and if any thing from henceforth be done to the contrary it shall be void in law and holden for * * Se the 5. Ed. 3.9 25. Ed. 3.4 28. Ed. 3.3 37. Ed. 3.18 42. Ed. 3.3 and the Petition of
25. Ed. 3.4 28. Ed. 3.3 And whereas no offender of what kind soever is exempted from the proceedings to be used and punishments to be inflicted by the lawes and Statutes of this your Realme Neverthelesse of late divers Commissions under your Maiesties great Seale have issued forth by which certaine persons have been assigned and appointed Commissioners with power and authority to proceed within the land according to the iustice of MARTIALL LAW against such Soldiers and Marriners or other dissâ—lute persons ioyning with them as should commit any MVRDER ROBBERIE FELONIE MVTINIE or OTHER outrage or misdemeanor whatsoever and by such summarie course and order as is agreeable to Martiall Law and as is used in Armies in time of Warre to proceed to the tryall and condemnation of such offendors and them to cause to be executed and put to death according to the Law Martial By pretixt wherof your Maiesties Subiects have bin by some of the said Câ—â—mission put to death when and where if by the lawes and Statutes of the land they had deserved death by the same lawes and Statutes also they might and by no OTHER ought to have been been iudged and executed ††Yet it is very observable that at the very time when this Martiall Law complained of was executed the King had warres with France a forraign enemie but there is no such thing now and therefore the Army or the grand Officers thereof have not the least shadow or pretence to execute it in the least or to deale with me a free Commoner as they haue done And also sundry grievous offendors by colour thereof claiming an exemption have escaped the punishment 〈◊〉 to them by the lawes and Statutes of this your Realm by reason that divers of your Officers and Ministers of Justice have uniustly refused or forborn to proceed against such offenders according to the same laws and statutes upon 〈◊〉 that the said offendors were publiâ—able only by Martiall Law and by authority of such Commissioners as aforesaid Which Commissions AND ALL OTHER OF Lâ—â—E NATVRE are wholly and directly contrary to the fall lawes and Statutes of this your Realm Therefore Sin if you have any catâ— of your own heads and lives though you have none of the Liberties and Freedomes of England I againe as a friend advise you to take heed what you doe unto me any further in your illegall arbitrary and tyrannicall way that hitherto you have proceeded with meâ— for I largely understand that Canterbury and Strafford were this Parliament questioned for their arbitrary and tyrannicall actions that they did and acted many years before and the Lord Keepers Finch was by this Parliament questioned for actions that he did when he was Speaker of the House of Commons in the third of the present King An. 1628. and forced to flie to save his head In the second place I answer that if since the warres ended it was or could be judged lawfull for your Excellencie and your Councell of Warre to execute Marshall Law yet you have divested your self of that power upon the 4. and 5. of June last at New market Heath you owned the Souldiers and joyned with them when they were put out of the States protection and declared enemies and further associated with them by a mutuall solemn ingagement as they were a Company of free Commoners of England to stand with them according to the Law of Nature and Nations * * See the late Plea for the Agents printed before pag. 42 43 44. to recover your own and all the peoples Rights and Liberties the words are these We the Officers and Soldiers of the Army subscribing hereunto doe hereby declare agree and promise to and with each other that we shall not willingly disband nor divide nor suffer our selves to be disbandad nor divided untill we have security that we as private men or other the free borne people of England shall not remain subiect to the like oppression iniury or abuse as have been attempted ††See the ingagement in the Armies book of Decl. pag. 24 25. 26 27. Hereby it appeares that from this time you and the Souldiery kept in a body and so were an Army not by the States or Parliaments will but by a mutuall Agreement amongst all the Soldiers and consequently not being an Armie by the Parliaments wills they were not under those rules of Martiall Government which were given by the will of the Parliament and your Excellency could no longer exercise any such power over them as was allowed you by those Martiall lawes nay the Soldiers keeping in a body and continuing an Army only by mutuall consent did by their mutuall Agreement or Ingagement constitute a new kind of Councell whereby they would be governed in their prosecution of those ends for which they associated and made every Officer incapable of being in that Councell which did not associate with them in that Ingagement The words of the Agreement or Ingagement are these we doe hereby declare agree and promise to and with each other that we shall not willingly disband nor divide nor suffer ourselves to be disbanded or divided without satisfaction in relation to our grievances and desires heretofore presented and securitie that we as private men or other the free-born people of England shall not remain subject to the like oppression and injury as hath been attempted and this satisfaction and security to be such as shall be agreed unto by a councell to consist of those generall Officers of the Army who have concurred with the Armie in the premises with two Commission Officers and TWO SOVLDIERS to be chosen for each Regiment who have concurred and shall concurre with us in the premises and in this Agreement So that your Excellency is so farre from having a power to exercise the old Martiall Discipline that you would have been no Officer or Member of the Councell appointed to governe them unlesse you had associated with them and by that Association or mutuall Ingagement the Soldiers were so far from allowing to their Generall who ever it should have been for at that time it was uncertaine the power of exercising the old Martiall Dâ—scipline that according to the Ingagement no Officer or Soldier can be rightly cashiered unlesse it be by the Councell constituted by that Engagement so that your Excellency by your owne Engagement have put a period to your power of exercising your old Martiall Discipline and whatsoever Dâ—scipline shall appeare to the Army to be necessary must be constituted by the mutuall consent of the Army or their representatives unlesse you and they will disclaim the Engagement at New market and those principles upon which you then stood * * And if you do what are you better then a company of Rebels Traytors to the Parliament for your then opposing their power authority orders and ordinances and yeeld up your selves to the Parliaments pleasure as their hirelings to serve their
arbitrary power like Turkish Janisaries In the rhird place I answer that it is against reason law conscience justice and equity to subject me at one and the same time or any other free Commoner of England under the sting and power of two distinct Lawes and such a bondage as is insupportable and such a snare of intanglement that no mans life whatsoever can be safe or secure under it that I shall be liable to be questioned and destroyed by the common Law of the Kingdome and then be at the wills of mercenarie Turkish Ianisaries in case the common Law will not reach me to be questioned and destroyed by an unjust arbitrary Martiall law and if it can be justly proved against me that I have made any tumults the Law and the ordinarie Courts of justice are open by which and by no other rules and proceedings J ought to be tryed and if it be said or can be proved that J have belied or scandalized the Generall to the taking away of his good name c. yet scandalum Magnatum is not to be tried by Martiall Law nor yet either by the House of Commons or the House of Lords but only alone now the Star-Chamber is down by an Action at cōmon Law ††As is cleare by the Statutes of 3. Ed. 1. 33. 37. Ed. 3. 18. 38. Ed. 3. 9. 42. Ed. 3. 3. 2. R. 2. 5. 12 R. 2. 11. 5. part Cookes reports pag. 125. 13. H. 7. Kelway 11. Eliz. Dier 285. 30. Affiz pla 19. Liev. Col. John Lilburnes Grand Plea of 20. October 1647. pag. 7. 8. by a Jurie of my equals no where else it being a Maxime in Law That wher remedy may be had by an ordinary course in law the party grieved shall never have his recourse to extraordinaries * * See Vox Plebis pag. 38. Lievt Col. Jo. Lilburnes Anatomie of the Lords Tyranny pag 10. And besides for you to proceed with me and to be both Parties Jury and Iudges is a thing that the Law abhorres ††See 8. H. 6. fol. 21. Eliz. Dier 220. Dr. Bonhams case 8. part of Cooks Repots and Lievt Col. Jo. Lilburnes grand Plea pag. 10. In the fourth and last place J answer that the Parliament it selfe neither by Act nor Ordinance can justly or warrantably destroy the fundamentall liberties and principles of the common Law of England * * See Mr. Henry Martins answer to the Scotchpapers called the Independency of England at the last end it being a maxime in law and reason both That all such Acts and Ordinances are ipso facto null and void in law and bind not at all but ought to be resisted and stood against to the death But for them to give you a power by Marshal Law or under any other name or title whatever by your arbitrary tyrannicall wills without due course and processe of Law to take away the Life or Liberty of me or any free Commoner of England whatsoever yea or any of your own Souldiers in time of peace when the Courts of Iustice are all open and no visible declared enemie in Armes in the Kingdome ready to destroy it is an absolute destroying of our fundamentall Liberties and a rasing of the foundation of the Common Law of England ††But besides all this I doe confidently believe that the Parliament never gave power unto the Generall since the wars ended to execute Martiall Law neither doe I believe that some chiefe Executors of Martiall Law have any Legall Commission from the Parliament who never that I could heare of ever gave power unto the Generall of himself to make generall Officers and besides all the Parliament men that are Officers in the Army were as I have been groundedly told formerly taken off by an Ordinance of both Houses which was never repealed since And therfore such a power of Arbitrary Marshall Law cannot justly by the Parliament in time of peace c. be given unto you nor if it were be justly or warantably executed by you And besides both houses themselves by an Ordinance unlesse they alter the whole constitution of this Kingdome can take away the life of no free Commoner of England whatsoever especially in time of peace And therefore that which is not within their owne power to do they cannot by an Order or Ordinance grant power to Sir Thomas Fairfax c. to do it being a Maxime in nature That beyond the power of being there is nor can be no being But it is in the power of the Parliament or the two Houses or the House of Commons themselves as the present constitutions of this Kingdome stands either by Order or Ordinance to take away the life of any free commoner of England * * See Sir E Cooks 2 part institut fo 47 48. 3. part fol. 22. and 4. part fol. 23. 25. 48. 291. all of which bookes are published for good law to the Kingdom by 2. speciall Orders of the present House of Commons as you may read in the last pa. of the second part institut see also the Petition of Right And therefore they cannot by an Ordinance or Order especially in times of peace give power to Sir Thomas Fairfax by Marshall Law unlesse they totally alter the Constitutions of the Kingdome to take away the life or lives of any free Commoners of England which all Souldiers are as well as others ††See the Armies Declaration of the 14. Iune 1647. Book of their Declarations pag. 39. and their Letter from Royston to the Lord Mayor of London of the 10. Iune 1647. which the Printer hath neglected to print in their book of Declarations * and therefore it is absolute murther in the Generall and the Councell of Warre now to shoot to death hang or destroy any Souldier or other Commoner what ever by Marshall Law for which they may be indicted at the Kings Bench barre And therefore J doe the third time as a friend advise you to cease your illegall arbitrary tyrannicall Marshall Law proceedings with me that am no Souldier and so not under the least pretence of your Marshall Iurisdiction least in time to come you pay as deare for your arbitrarie illegall proceedings with me as Sir Richard Empson and Mr. Edward Dudley Iustices did who as Sir Edward Cook declares in his 2. and 4. part of his Institutes where very officious and ready to execute that illegall Act of Parliament made in the 11. H. 7. cap. 3. which gave power unto Iustices of Assize as well as Iustices of the Peace without any finding or presentment by the verdict of twelve men being the ancient birth-right of the Subject upon a bare information for the King before them made to have full power and authority by their discretions to heare and determine all Offences or contempts committed or done by any person or persons against the form ordinance
the almost renting of my jawes in sunder See my printed relation of my businesse before the Lords bar the 13. Feb. 1645. where all this with much more is proved upon Oath And upon that very day 10. Iudges of the said Star Chamber made an Order to murther and starve me * * Which Order you may read at the last end of my above mentioned relation the very words of which Order being that the said Iohn Lilburn shall be laid alone with irons on his hands and leggs in the wards of the Fleet where the basest and meanest sort of prisoners are used to be put and that the Warden of the Fleet take especiall care to hinder the resort of any persons whatsoever unto him and particularly that he be not supplyed with money from any friend And yet they not any for them during all my imprisonment never allowed me the value of one fâ—rthing token to live upon but executed the said Order upon me with so much barbaritie that my pining tormenting condition was a thousand times worse and lesse to be indured then any sudden death whatever under which without doubt I had perished had it not been for the timely reliefe of this Parliament by which said sufferings I was rob'd of a profitable trade in the flower of my dayes And being by you set at liberty the first weeke of your fitting J was by the malice of one Littleton a Couâ—tier by the Kings especiall command arrested of high Treason and the 4. May 1641. by the Kings own direction I received a kind of an Arraignment at the Lords bar where the said Lietteton most falsely swore point blanke against one to the apprant hazzard of my life and being if he had not been contradicted by the oath of his own friend Mr. Andrewes a Counceller upon which day and at that very time the House of Commons were so sencible of my sad and suffering condition that they were pleased upon the report of Mr Francis Rouse to make these Votes for me Resolved upon the question That the sentence of the Star Chamber given against Iohn Lilburne is illegall and against the liberty of the Subiect and also bloody wicked cruell barbarous and tyrannicall Resolved upon the question that reparations ought to be given to Mr Lilburne for his imprisonment sufferings and losses sustained by that illegall sentence And yet I never had to this houre one penny of reparations although J dare safely say it I have spent above a thousand pound one way and another in following you therefore above the space of seaven yeares which is a longer time for any thing I can read of in Scripture then ever the importunate widow followed the unrighteous Iudge that neither feared God nor reverenced man and yet obtained justice at his hands That upon my deliverance by the assistance of one of my friends I betook my self to a trade for my livelyhood and of my own and my foresaid friend stockt it with almost 1500. l. ready money and the late wars comming on at the desires of many eminent men of this Kingdome my then choice friends I left my trade and in iudgement and conscience girded my sword unto my thigh with an honest resolution to spend my heart blood for the preservation of the lawes and liberties of my native country which then the Parliament by their Declarations made me and the Kingdome believe was endeavoured to be destroyed by the King and his evill Councell And having like a man of undaunted resolution adventured my life at Edgehill and Brainford with good and advantagious successes to the Parliament though with ill to my self being to a good value plundered at both places and at the last taken prisoner where by the inhumaine barbaritie of severall Lords and others I was diverstimes in danger after quarter given before I came at Oxford to be buâ—â— in pieces being pinioned with my armes behind me and tyed to another and forced on foot through all the dirt and mire to March two dayes together And being arrived a prisoner at Oxford Castle J was visited by foure Lords viz. the Lord Newarke now Marquesse of Dorchester the Lord Dunsmore now Earle of Chichester the Lord Mattravers now Earle of Arundell and the Lord Andiver as messengers from the King at they told me and in his name proferred whatever in reason I could desire in his then prosperous condition so J would forsake the Parliament and my present principles and desire his pardon which they all unanimously promised to get for me but I told their Lordships they were mistaken in me if they thought I was to be courted out of my principles and as for his Maiesties pardon I told them I scorned either the craving or accepting of it having in obedience to the Parliaments then commands done nothing but what I did then believe was just and legall and for which I would willingly lay my life down and the desiring or accepting of a pardon would argue guiltinesse which I told them I believed I had no need to confesse Whereupon I was clapt in irons night and day forcd to lye in my cloaths upon the flore lockt up close in a Chamber when I had not a penny of money about me being lately plundered of all I had and a centry set at my doore that I could not speak with any of my fellow prisoners to borrow a penny to buy me bread by meanes of which I was exposed to the greatest of straights and immediately in irons arraigned as a Traytor before Sir Robert Heath and Sir Thomas Gardner c. for levying war against the King by authoritie from the Parliament and I pleaded to my indictmâ—nt telling the Iudge J girded my sword unto my thigh in judgement and conscience by vertue of the greatest authority in the land with a resolution to speed the last drop of my blood for the preservation of the just lawes and liberties of my native country being seduced thereunto by no flesh alive acting not by an Impâ—cite faith but upon principles of iudgement and understanding in the defence whereof I told him I was then as ready to dye by a halter as before I had been either by a Bullet or a Sword and having escaped that danger of hanging by a letter of the Speakers of this House threatning unto them Lex taliones As you may read in the first part book Decl. 802. 803. I contracted there by hard usage a desperate and dangerous sicknesse of which I lay speechlesse divers dayes the inhumanity of the barbarous Marshall Smith being such toward me that he would neither suffer Phisitian Apothecary Surgion nor Nurse to come neare me and though some Gentlemen then in bonds with me got a poore half starved Prisoner to looke to me yet he was clapt up twice close Prisoner for helping me in those great straights and I could not freely inioy his helpe till I purchased it for money at the hands of one of Smithâ— cruell tormentors By
to receive or detaine you but by a legall warrant flowing from a legall power as before I have more fully noted See also 1. p. book decl p. 201. And you are to know that any house keeper that stand not committed of crimes but are legall men paying scot and lot though they be no subsidie men are good baile and if refused you have your action of false imprisonment against him that so doth and you are further to know that if the prisoner be in a Country Gaole who is â—o be brought up to the Bar in Westminster Hall upon the Habeas Corpus that he is only to beare his owne charges but by law is not bound to beate the Gaolers or to pay him any thing for bringing him And in case the party be committed to prison unjustly and no Baile will be taken for him he ought to require a Copy of his Mittimus and to have it gratis and if I should demand it and it would not be given me I would not goe unlesse I were carried by force by head and heeles and then I would cry out Murder Murder â—o and doe the best I could to preserve my self till I had got a Copy of it for many times when a man comes to prison the dogged Gaoler will refuse to let me have it which may be a great â—eâ—riment to me and if I stirre or busse for it his will shall be a Law unto me to duâ—geon me bâ—â—t and fetter me contrary to Law It being as Andrew Horne saith in his excellent book called the Mirrour of justice in English Chap. 5. Sect. 1. devision 54. pag. 231. an abuse of Law that a prisoner is laden with irons or put to paine before he be attainted of fellony c. And when J am thus in prison committed by what authority soever the first thing that J am to doe is to send my friend be he what he will be aâ— well a private understanding resolute man as a Lawyer for either my self or any one I will appoint may and ought to plead my cause before any Iudge in England as well as any Lawyer in the kingdome and neither ought by the Iudge to be forbidden snub'd or brow beaten to the Chancery for a Habeas Corpus if it be out of Tearm for as Sir Edward Cook on the 29. chap. of Magna Charta well p saith the Chancery is a shop of iustice alwayes open and never adiourned so as the subiect being wrongfully imprisoned may have justice for the liberty of his person as well in the Vacation time as in the Tearme but if it be Tearm time it is most proper to move for the Habeas Corpus at the Kings bench barre and if the Judges refuse to grant it unto you it being your right by Law as the Petition of right fully declare q and the Iudges by their oath before printed pag. 10 36 are bound to execute the Law impartially without giving care in the least to the unjust command of the Parliament or any other against it then you may by the Law indict the â—udge or Iudges for Perjury and if then they shall deny you the benefit of the Law I know no reason but you may conclude them absolute Tyrants and that the foundation of Government is overturned you as the Parliament hath taught you are left to the naturall remedy to preserve your selves which self preservation they have declared no people can be deprived of see their declarations 1. part book decl p. 207 690. 728 150. Iohn Lilburne in adversity and prosperity and in life and death alwayes one and the same for the liberties of himself and his native Country From my arbitrary tyrannicall and Murthering imprisonment in the Tower of London this 2. of Decemb. 1647. Postcript BVt while I was concluding this second edition of the London Agents plea with the fore-expressed additions newes is brought me that the committee of plundered Ministers summons up Londoners and commits them for non payment of Tythes for whom I frame a Plea thus That the houses of Parliament have already made two Ordinances about tythes of the 8. of Novem. 1644. and the 9. of August 1647. and by those Ordinances referred the London-Parsons or ministers in London to get their tythes according to the statute of the â—7 H. 8. 12. which statute authorised such and such men to be Commissioners as are therin named or any fix of them to make a decree which decree shall be as binding to the Londoners as an expresse act of Parliament in which they give the Parsons two shillings nine-pence in the pound for all house-rents c. which the Londoners are bound to pay unto their parsons if the said decree had as by the foresaid statute it ought to have been entred upon record in the High Court of Chancery which it never was nor is noâ— her to be found aâ— Meâ—arborow the Lawyer in Roben-hoods court in Bow-lane London proved by certificate under the Record keeperâ— hand before Alderman Adams when he was Lord Mayor of London In a case betwixt Parson Glendon of â—arkins by Tower-hill and one of his Parishoners viz. Mr. Robert a Merchant as I remember for I was by and heard all the Plea And therefore the Parsons of London can neither by Law nor those Ordinances recover or justly require one farthing token of Tythes from any Citizen of London And for the Committee of plundered Ministers by any pretended authority that yet is visible to take upon them to execute those Ordinances or to compel the Citizens of London to pay tythes to their Parsons or Ministers they have no more authority or right to doe it then a Three hath upon the high way to rob me of my purse or life and for them by the Law of their owne will to take upon them to send Summons to any Free-man of England and to force them to come before them without due processe of * * And what due processe of Law is you may read in the 2. part institutes upon the 29. Chap. of Magna Charta and Vox Plebis pag. 11 12 14 15. c. and my book called The resolved mans resolution page 3 4 5 6. c. and my grand plea against the Lords and Thompsons plea against the new Tyrants at Windsore executing Marshall Law law to pay so much money to the Parsons upon any pretence whatsoever and for unwillingnesse to pay to commit him or them to prison is a crime in my Judgement of as high a nature in subverting our fundamentall lawes and liberties and seâ—ing up an Arbitrary Tyrannical government as the Earle of Strafford was accused of and lost his head for and as wel do the actors in this arbitrary Committee deserve to dye for these actions as Trayterous subverters of all lawes as the Earle of Strafford did for his against whom in the fift Article of his aditionall Impeachment of treason it is alledged against him That hâ— did use and
by the prime Laws of reason and nature which are the Lawes of God it is lawful for a men to defend himself against an uniust power so he keep due distance so that if they will have your goods let them distraine for them and then you may replivie them and thereby at law try the title of their right and if they will imprison your person goe not but by force and be sure to stand upon the legallity of the warrant which that you may fully and truly understand the forme of it I shall give you at large the words of Sir Edward Cook in the 2. part of his institutes fol. 590 591 592. published by the Parliaments own authority for good law who being expounding the Statute of breaking prison made in the first E. 2. upon the words without cause c. fo 590. expresly saith this act speaking of a cause is to be intended of a lawfull cause and therefore false imprisonment is not within this act Imprisonment is a restraint of a mans liberty under the custodie of another by lawfull warrant in deed or in law lawfull warrants when the offence appeareth by matter of record or when it doth not appeare by matter of Record By matter of Record as when the party is taken upon an Jndictment at the suit of the King or upon an appeale at the suit of the party when it doth not appeare by matter of Record as when a felony is done and the offender by a lawfull Mitrimus is committed to the Gaole for the same But between these two cases there is a great diversitie for in the first case whether any felony were committed or no If the offender be taken by force of a Capias the warrant is lawfull and if he break prison it is felony albeit no felony were committed But in the other case if no felony be done at all and yet he is committed to prison for a supposed Felony and break prison this is no felony for there is no cause And the words of this Act ††See Magna Charta Chap. 29. are unlesse the cause for which he was taken require such a iudgment so as the cause must be just and not feigned for things feigned require no judgement If A. give B. a mortall wound for which A. is committed to Prison and breaketh prison B. dyeth of the wound within the yeare this death hath relation to the stroke but because relations are but fictions in Law and fictions are not here intended this escape is no felony 11. H. 4 11. Plowd com 408. Coler case Seeing the weight of this businesse touching this point to make the escape either in the party or in the Gaolers felony dependeth upon the lawfulnesse of the Mittimus it will be necessary to say somewhat hereof First it must be in writing in the name and under the seale of him that make the same expressing his office place and authority by force whereof he maketh the Mittimus and is to be directed to the Gaoler or keeper of the Gaole or prison Secondly it must containe the case as it expresly appeareth by this * * 25. E. 3. f 42 B. Coron 134. 32. li. 3. Coâ—er 248. 9. E. 4. f. 52. Act unlesse the cause for which he was taken c. but not so certainly as an Indictment ought and yet with such convenient certainty as it may appeare judicially that the offence require such a iudgement as for high treason to wit against the person of our Lord the King or for the counterfeiting of the money of our Lord the King or for petty treason namely for the death of such a one being his master or for felony to wit for the death of such a one c. or for Burglary or Robbery c. or for felony for stealing of a Horse c. or the like so as it may in such a generality appeare judicially that the offence requires such a judgement And this is proved both by reason and authority By reason first for that it is in case of fellony which doth induce or draw on the last punishment and therefore ought to have convenient certainty as it is aforesaid Secondly Also it must have convenient certainty for that a voluntary escape is felony in the Gaoler Thirdly If the Mittimus should be good generally for felony then as the old rule is the ignorance of the Judge should be the calamity of the innocent for the truth of the case may be that he did steale Charâ—ers of Land or wood growing or the like which in law are no felonies and therefore in reason in a case of so high nature concerning the life of man the convenient certainty ought to be shewed By Authority the constant forme of the Jndictment in that case forescape either by the party or voluntarily suffered by the Gaoler is That he was arrested for suspition of a certaine felony namely for the death of a certain man M. N. feloniously slaine or the like for the Indictment must rehearse the effect of the Mittimus which directly proveth that the cause in such a generall certainty ought to be shewed vid. 23. E. 3. fo 48. And if a man be indicted of treason or indicted or apealed for felony the Capias therupon wherby the pâ—rty is to be arrested comprehendeth the cause and therefore much more the Mittimus whereby the party is to be arrested having no such ground of Record as the Capias hath must pursuing the effect of the Capias comprehend the case in convenient certainty 2â— E. 3. fol. 42. pl. 32. there ought to be a certain cause and in the same leafe pl. 35. in case of breaking of prison the cause of the imprisonment ought to be shewed If a man be indicted that he break prison felonâ—ously c. generally 9. H. 4. f. 26 41. ass 5. 22. E. 3. Coron 242 243 248. 43. E. ibid. 424. 3. E. 3. ibid. 312. 328. 333 345. 346. 2. E. 3. fo 1. 26. ass 51. 22. E. 3. 13. 27. ass 42. 27. ass pag. 116. 15. E. 2. Coron 38. 9. H. 4. 1. 10. H. 4. 7. 11. H. 4. 11. 8. E. 2. Coron 422. 430. 431. 27. H. 6. 7. 39. H. 6. 33. â— R. 3. cap. 3. 2. H. 5. cap. 7. 21. H. 7. 17. it is not good for the indictment ought to rehearse the specially of the matter according to the estatute that he being imprisoned for felony c. brake Prison We have quoted many other books which though they bee not so certainly reported as might have bin wished yet the judicious Reader will gather fruit of them But see before the exposition of Magna Charta cap. 29. by the Law of the Land and observe wall the Writ of Habeas Corpus for a direct proofe that the cause ought to be shewed Lastly see hereafter in the exposition of the Statute of Articuli cleri the resolution of all the Judges of England the answer to the â—â— and 22. objections which
this expresse command upon them that they shall in any wise set a King over themselves from amongst their brethren and that they shall not in any wise set a stranger over them which is not their brother but saith God he shall not multiply Horses to himself nor cause the people to return to Aegypt that is to say to vassalage slavery or the house of bondage Neither shall he multiply wives to himself that his heart turne not away neither shall he greatly multiply to himself silver Gold And it shall be when he sitteth upon the Throne of his Kingdome that he shall write him a copy of this law in a book out of that which is before the Priests the Levits And it shall be with him and he shall read therein all the dayes of his life that he might learne to feare the Lord his God to keep all the words of this law and these statutes and do them That his heart be not lifted up above his brethren marke that well and that he turne not aside from the commandement to the right hand or to the left Deut. 17 15 16 17 18 19 20. Here is a cleare declaration by God himself that Kings the single greatest of Magistrates are not to walke and act upon the people by the rules of their own wills but by the law of God which is as binding to them as the meanest of the people and for my part I say and aver that that man whether King or Parliament man that declares himself to be lawlesse was never in that condition of Gods creation but of the Divils And pertinent to this purpose is the compâ—aint of our antient English Lawyer Andrew Horne in his Mirror of Iustice in English ch 5. Sect. the first division the first and second pag. 225. where complaining of the abusions of the Common law he saith the first and chiefe abusion is that the King is above the law whereas he ought to be subiect to it as it is contained in his oath Which as Sir Richard Hutton one of his own Iudges in his Argument in Mr. Iohn Hampdens case against Sip-money pag. 32. which argument was made before this Parliaments doctrine was broached saith that by the Kings Oath he agrees to give consent to such lawes as shall in Parliament be propounded for the profit and good of the Kingdome and be further declares that he is to rule and govern thereby see also the petition of Right in the following pages 1. 2 So that by this it clearely appeares that in his own imagination nor the opinion of his Iudges he is neither omnipotent nor unlimited but his office is an office of trust conferred upon him for the good of the people And therefore saith our forementioned Author Andrew Horne ibim the second abuse of the common Law is That whereas Parliaments ought to bee for the salvation of the soules of Trespassors twice in the yeare at London that they are there but very sildome ond at the pleasure of the King for subsidies and collections of Treasure c. And the Act made the first yeare of this Parliament in the 16. of the present King called an Act for the preventing of inconveniences hapning by the long intermission of Parliaments expresly saith Whereas by the Lawes and Statutes of this Realm the Parliament ought to beholden at least once every yeare for the redresse of Grievances c. Which Lawes and Statutes are the 4. Ed. 3. 14 36. Ed. 3. 10. which are printed virbitum in the following discourse pag. 9 12 and which are expresly ratified and confirmed to be duly kept and observed In which Acts the Parliament are prescribed their worke what to doe which is to maintaine the Lawes and redresse the mischiefes and grievances that dayly happen but not in the least to our destroy Lawes unlesse they give us Letter for them nor to make our mischiefes and grievances greater nor to rob and poule the Kingdome of their treasure by taxations Excize c. and then share it by thousands and ten thousands amongst themselves which iâ— expresly against the Lawes of the kingdome for Feesies in trust and they are no more at most by the Law of this Land can give nothing to themselves and therefore their sharing as daily they doe the Common wealths money amongst themselves is no better then absolute state robbery against whom an indictment or an Action of recovery if not of death †For Andrew Horne declares p. 239 that it is an abuse of the common Law that Iustices and their Officers who kill people by false judgeâ—ent be not destroyed as other murtherers which King Alfrid caused to be done who caused 44 Iustices in one yeare to be hanged as murtherers for their false judgâ—ments and page 241 he saith that he hanged Arnold because he saved Boylife who robbed the people by cullour of distresses whereof some were by selling distresses some by extortions of fines c. ought in equity and reason to lye as well as against robbing and cheating servants and stewards And for them for ever to shelter themselves from the lash and stroak of justice or for ever from being called to accompt for all their Cheats Robberies and murthers by getting the Kings hand to an Act to make them an everlasting Parliament no more lyes in the Kings power Justly and legally to do then to give them power to make us al absolute Vassels and Slaves and to destroy all our Lawes libertys and propertys and when they have so done then to cut the throats of all the men in England besides themselves therefore it behoves the people to keep up the interest of a Parliament but yet annually at least to chuse new Parliament ment to call their predicessors to a strick accompt and for my part J conceive that not onely by the rules of equity and reason but by the strength of the Law of the land which requires a Parliament to be chosen and held at least once every yeare the people that are willing in the severall Sheires Cities and Burrowes may call home their Parliament men and send new ones in their places to call them to accompt and to make Laws to punnish such betrayers of their trust as men as full of unnaturalnesse as those that murder and kill their owne fathers which is an act abhorred even amongst bruts and yet this very thing is acted upon us by the grandees amongst our trustees who themselves have told us that it is as old a law as any is in the Kingdom that the Kingdome never ought to be without a meanes to preserve it selfe 1. part book decl pag. 207. pag. 690. And that those things which are evell in their owne nature cannot be the subject of any command or induce any obligation of obedience upon any man by any authority whatsoever 1. par book p. cl pag. 201. pag. 150. And therefore the conclusion that I draw from Gods subjecting of all men equally
alike to his law is by way of advice to all my Countrymen earnestly to prosecute the obtaining the things desired in the 3 first heads of our great Petition especially for promoting of which I am lately as a trayter committed by the House of Commons that the powers of King Parliament and people may be destinctly and particularly declared and setled that we may be no longer in confusion by having the little ones â—o be subject to the punishment of the law the great ones to be subiect to none but their lusts â—he law of ther own wils therfore I do with confidence beleeve those expressions of my imprisonâ—d Comrade Mr. Iohn Wildman in the 11. pag. of his late masculine English peace called truths tryâ—mph or treachery anatomized where he saich that he beleeves the freedome of this Nation will â—ever be secured until the extent of the power and trust of the peoples representatives and the peoples â—eservations to themselves be clearly declared in reference to the Legislative power And for my particular after the grand and superlative Apostacie of so tall a Caeder as Lievt Gen. Cromwell See that notable discourse of him in â—urney Projects and also in a little book â—alled the Grand Design and the justiâ—â—cation of Sir Iohn Maynard prisoner in â—e Tower called the Royall Quarrell pretended to be for the liberties and freedomes of the people of this nation I shall never hereafter in state affaires for his sake trust either my father brother or any other relations I have in the world but shall always to all I converse with incultate the remembrance of that deare experienced truth or maxime recorded in the margent of our forementioned large Petition which is That it hath been a maxime amongst the wisest Legislators that whosoever meanes to settle good lawes must proceed in them with a sinister opinion of all mankind and suppose that whosoever is nor wicked it is for want only of the opportunitie And that no state can wisâ—ly be confident of any publique Ministers continuing good longer then the â—ods is held over their heads Now as God hath made all men subject to his lawes alike so in the. Second place he hath been very shaâ—â— positive and plain to his lawes see Gen. 2.17 and 9.5.6 Ex. 20. see also the 10.11.13.14 pages of my Epistle to Iudge Reeves edition the 2. where these particulars are largely and pithly discursed But Iuglers deceivers deluders and Tyrantsâ— study how to make their Lawes ambiguous and doubtfull that so the people may continually be together by the eares in the true understanding of them that so the mysterious and jugling lawyers who are the principall makers of them may under pretence of opening them continually pick the peoples pockets with a kind of Hocus Pocus or Clenly conveiance and have made them so voluminous that it shal be almost impossiâ—le for an ordinary man ever to reade them over or if he doe reade them over yet it shall be impossible for an ordinary braine to carry all the contradictions of them one against an other in his head Thirdly God gave all his lawes and the proceedings therein to his people in their owne mother tongue and commanded them to teach them to their Children and Servants and that their Iudges that did execute them should sit openly in the Gates and judged it farre below and beneath that Iustice that is inherant in him to give his Lawes or any proceedings in them so unto his people that it was impossible for the most of them to know them read seriously so proofe hereof â—the forementioned pages of my Epistle to Iudg Reeves for writing of which al my present troubles are come upon me But juglers deceivers deluders and tyrants will have their lawes not in the peoples mother tongue but will have them put into Lattin or French that so the people that are governed by them may never come to understand them * But saith the aincient Lawyer Andrew Horne in his Mirror of justice chap. 5. Sect 1. de 3 page 225. it is an abuse of the common Law of England that the Lawes and customes of the Realme with their occasions are not put in writing whereby they may be known so as they might be knowne by all men that so their lives liberties and estates may be at the wills of those the ride and tyrannise over them as Mr. Daniel in his history well observes the people were in Will the conquerours time and if possible they gâ—t their pleadings to be it English as the people of this Kingdome did theirs with much strugling in Edward the third time as appeares by that remarkable statute of the 36. Ed. 3. chap. 15. printed in the following discourse page 12â— yet they shall be fettered with this bondage that their ent eyes proces and procedings shaâ—l be in Lattin and that in such a hand that not one lattin scholler in twenty shall reade them and if any follow the command of God to teach the people the understanding of their Lawes O cry the knaves and tyrants like Bishop Gardiner in the book of Marters open this doore and we are all destroyed and therfore by any meanes suppresse all such schooles as Henry the third did those schooles that were in his dayes set up to teach the people the knowledge of Magna Charta as Sir Edward Cook well declares â—n the 3. page of his proeme to his 2. part institâ—tes And therefore it is that those makke bate firebrand Lawyers in the House of Commons have bin so transendently active to burne and â—ruth in peeces all such honest and just petitions as have desired our lawes and proceepings therein may be put into a short plain and easie to be understood method in the English tongu yea an have made it their study to grinde to powder the promoters of all such iust honest petition as they and their accomplisses lately did in Mr. Iohn Wildmans case and mine and indeed to speak truly without feare they are the grand supporters of all corrupt interests in the Kingdome that make it their study to keepe the people in bondage and vassolage and therefore O ye Commons of Enland as one man cry out by petition speedily to the Parliament to throw them all out of the House as unsavery salt never to sit there any more unlesse as assistance who I will maintaine it with my life have been and still are for the preservation of their owne corrupt interest no small instruments in the by past and present subversion of our liberties and occasion of the blood shed and late warre in the Kingdome and the main hinderers of the granting setling and accomplishing of those many just and righteous things that hath so often bin petitioned for to the Parliament though hitherto all in vaine O therefore cry and cry mightily against them as the vermine of the House and Common-wealth But because I have longed and still doe to have
effect of any Statute made and not repealed c. by colour of which Act of Parliament shalling saith he this fundamentall law viz. the 29. Chapter of Magna Charta it is not credible what horrible oppressions and exactions to the undoing of infinite numbers of people were committed by them for which though I cannot read they shot any man to death and though they had an expresse Act of Parliament to beare them out abundantly lesse questionable then an Ordinance for exercising Marshal Law they were both indicted of high treason both by the Common Law and Act of Parliament * * See 2. part Instit fol. 51. 4. part fol. 41. 196. 197. but especially read their Jndictment virbatim set down ibid. fo 198 199. and in the 2. yeare of Henry 8. they both lost their heads Therefore from all the premises by way of conclusion I draw up this protestation against you that by the lawes and constitutions of this Kingdome you have not the least Iudicative power in the world over me therefore I cannot in the least give you any Honour Reverence or Respect either in word action or gesture and if you by force and compulsion compell me againe to come before you I must and will by Gods assistance keep on my hat and look upon you as acompany of Murderers Robbers and Theives and doe the best I can to raise the Hue and Cry of the Kingdome against you as a company of such lawlesse persons and therefore if there be any Honour Honesty and Conscience in you I require you as a free borne English man to doe me justice and right by a formall dismissing of me and give me just reparation for my moneths unjust imprisonment by you and for that losse of credit I have sustained thereby that so things may goe no further or else you will compell and necessitate me to study all wayes and means in the world to procure satisfaction from you and if you have any thing to lay to my Charge J am as an English man ready to answer you at the common Law of England and in the meane time J shall subscribe my self Your servant in your faithfull discharge of your duty to your Masters the Commons of England that pay you your wages William Thompson From my arbitrary and most illegall imprisonment in Windsore this 14. Decem. 1647. The forementioned Letter thus followeth To his Excellency Sir Thomas Fairfax Knight Captaine-Generall of the Forces in the Nation for Importiall Justice and Libertie these present May it please your Excellency I Here present unto you a Declaration and Protestation against the illegall and unjust proceedings of your Councell of Warre against me I being a free Commoner of England as in the presence of the just God before whose Tribunall both you and I shall stand to give an account of all ungodly deeds committed against him And so I rest Your Excellencies servant if you are a true servant to the most excellent God for justice and righteousnesse in the earth without respect of persons William Thompson Decemb. 14. 1647. The Petition thus followeth To the right Honourable his Excellency Sir Thomas Fairfax Knight Captain Generall of all the forces raised in the Kingdome of England The humble Petition of some of your Excellencies Officers and Soldiers being under the custodie of the Marshall Generall Sheweth THat whereas there are misrepresentations of the intentions of the late Agents of the Army and their adherents by men of corrupt minds who would make all the end of your own and your Armies noble and valiant Atchievements under the power of God fruitlesse and would destroy justice and righteousnesse from amongst men and in stead of common good and equal distribution of justice would advance a particular selfish interest to accomplish their unworthy selfish ends amongst many other scandals cast upon the late Agents they have blazed abroad that they intended to murther the King and that one of them should affirm it was lawfull And whereas this was reported by one Lievt Col. Henry Lilburne it being altogether most abominable in our eyes and detracts from the purity and righteousnesse of our Principles tending only to make us odious to the people for whose good alone we have run not only all former but also these late hazzards We therefore desire that the said Lievt Col. Henry Lilburne may be speedily sent for to testifie upon Oath as in the presence of God who used those words where those words were used and when and what in particular the words were That so such a person may come under a publique cognizance and your Excellencies faithfull servants and souldiers may free themselves and others from such aspertions And your Petitioners shall ever pray c. Will. Eyers Will. Bray Will. Prior Iohn Wood. George Hassell Will. Everrard Iohn Crosseman Tho. Beverly Will. Thompson Commoner The forementioned plea of Iohn Crosseman which with his own hands he delivered to the Generall himself thus foloweth TO HIS EXCELLENCY SIR THOMAS FAIRFAX AND ALL his Officers that pretend to be Executors of Martiall Law May it please your Excellency I Was convened the 16. December last before certaine of your Officers that pretendedly called themselves a Court Marshall who attempted to try me by Marshall Law for certaine pretended crimes specified in a paper by way of Articles exhibited by a namelesse prosecuter 20. dayes after I was a prisoner only the said Articles were signed by Henry Whaley who calls himself Iudge Advocate And the same day and time unto the said Officers I delivered in a paper under my hand intituled John Crosseman his Plea against the proceedings of the Generall Officers to punish him by Marshall Law And after much debate by the said Officers upon the said Plea the said Officers seemed to be unsatisfied with it and therefore gave me time till this present Munday the 20. day Decemb. 1647. to consider with my self whether J would stand unto the said plea or give in any other answer Having thereupon largely considered with my self upon the ends of our late taking up Armes I can in my own conscience judge them to be no other but for the destruction of all arbitrary tyrannicall power in whomsoever the preservation of our Lawes and Liberties and the punishment of all those that have endeavoured the destruction of them And having since the delivery of the said plea read the Petition of Right from end to end And William Thompsons plea delivered to your Excellency c. upon the 14. Decemb. 1647. now in print intituled Englands Freedome Souldiers Rights ††Which you may read before pag. 1 2 3 45 46 47 48 49 50 51. upon the deep and weighty consideration of all which J am compelled out of the sense of avoyding the being too justly esteemed by all understanding rationall men a traytor and subverter of the Lawes and liberties of England to stand unto my said Plea without any further answer then this