VOX PLEBIS OR The Peoples Out-cry Against Oppression Injustice and Tyranny Wherein the Liberty of the Subject is asserted Magna Charta briefly but pithily expounded Lieutenant Colonell LILBURNES Sentence published and refuted Committees arraigned Goalers condemned and remedies provided .. ISAI 10. 1. 2. Woe unto them that decree unrighteous Decrees and that write grievousnesse which they have prescribed To turn away the needy from judgoment and to take away the right from the poore of my people that Widowes may be their prey and that they may rob the Fatherlesse JER 22. 15. 16. 17. Shalt thou reign because thou closest thy selfe in Cedar Did not thy Father eat and drinke and doe judgement and justice and then it was well with him He judged the cause of the poore and needy then it was well with him was not this to know me saith the Lord But thine eyes and thine heart are not but for thy covetousnesse and for to shed innocent blood and for oppression and violence to doe it London printed 1646. in the sitting of Parliament during which time the Presse ought to be free and open as the Parliament declared to the Bishops at the beginning thereof ALL States in the beginning are venerable That Republique which would keâ—p it selfe from ruine is above all other things to keep their Religion uncorrupted and their Lawes from violation 〈◊〉 or as true Religion is the tie of the Conscience to obedience and observation of just Lawes especially such as have their foundation in Divine Authority So are good Lawes the civill sanctions or sinewes of a Common-wealth that bind the members thereof together by the execution of justice and piety in a perpetuall bond of peace and tranquillity So that if either Religion be neglected or the Lawes violated the ruine of that Common-wealth must needs be neere where such defects are found But where Religion is held in due reverenee and the ancient Lawes of that Common-wealth are inviolably kept the Governors of such a State shall easily keep their Common-wealth religious and consequently virtuous and united Now there is no better way to make the Subjects of a State good and to incline them to virtue then that those that sit at the Helm of that State and have the government thereof should hold forth cleare examples of piety and justice in their own lives and actions to the people under their government especially in the administration of Lawes For as hunger and poverty make men laborious so Lawes duly administred make them good and good examples proceed from good education and good education from the due observance of setled Lawes Of all humane Lawes there is none more fit to be observed then those that concern our Lives and Liberties For those that concern our Lives they are most carefully with the greatest piety and circumspection to be executed since if our lives bee taken away by injustice death being ultimum supplicium the last punishment in this world our injuries are remedilesse and irrecoverable Therefore we may irrefragably conclude That Governours of a State ought to be very wary in judging of matters of life and not in one tittle to deviate or depart from the known Lawes of the Land lest by committing of irrepairable wrongs upon the persons of their innocent subjects they draw Gods irrecoÌ„cileable vengeance upon themselves in that day when he shall visit the Judges of the earth and make inquisition for the blood of his people spilt by injustice violence and oppression which hee will surely doe according to his own everlasting promise and eternall decree to be executed upon all States to the end of the world And as he did execute it upon Ahab and his posterity and upon Jezebel his wife for the unjust taking laway of the blood of Naboth as you may read 1 Kings 21. chap. 2 Kings 9. chap. concerning Jehoram and Iezebel and in divers other instances evidenced unto us by the holy Scriptures That which Samuel said unto Agag King of the Amalekites As thy sword hath made other women childlesse so shall thy mother be childlesse among other women hath a perpetuall morall use in Gods justice For we may finde a thousand examples where those Princes or States which have sold the blood of their people at a low rate have made but the market for their enemies to buy of theirs at the same price For it was never yet seen that those that dipt their hands in innocent blood went dry to their graves the blood that is unjustly spilt being not again gathered up from the ground by repetance These medicines ministred to the dead have but dead rewards Now as the Lawes concerning life or proceedings therein ought not to be Arbitrary much more concerning liberty For that the laws that concern the liberty of the subject in respect of their object which is the whole body of the people are far more large then those which concern life which lawes are onely relative to offenders and guilty persons and not directly to the whole people and therefore with the more tender regard to the subject to be executed Wherefore all manner of proceedings whatsoever which are Arbitrary and that tend to the taking away of our liberty are most dangerous destructive to the State where such are put in execution For Governours of CoÌ„mon-wealths ought to know this That at the same instant they begin to break the Lawes and to execute an Arbitrary power upon the peoples liberties at that very instant they begin to lose their State For by so doing the Governours draw the Odium of the people upon them and incite the people to find out and invent wayes unusuall and of innovation to free themselves from their oppressors and the execution of such tyrannicall power It is a most sure Rule in State policy That all the Lawes that are made infavour of liberty spring first from the disagreement of the people with their Governours Whosoever therefore sits at the Helme of a State bee it either a Common-wealth or Principality should consider before they execute any Arbitrary power upon the peoples liberties what contrary times by the ill effects of it may come upon them and what men in their troubles they may stand in need of and therefore should live with them alwayes in such manner that upon any accident chancing they may find them ready and willing to serve their occasions For in a Common-wealth well governed it is to be desired That nothing should chance which may call in the use of extraordinary courses For though an extraordinary way in some particular case doe good yet the example proves of ill consequence and will stirre the peoples minds to Jealousie and Commotions especially when it concernes the publique liberty and with that deep impression that having once freed themselves from the oppression of their Governours it commonly falls out that the State determines with the lives of the Governours For the people bite more fiercely after they have recovered
soli semper to all and every clause thereof alike Therefore we are to examine declare and publish to the world what this Legale judicium or Lexterrae this lawfull judgement or law of the land is and hath alwayes been taken to bee That the Free-borne subjects of this Kingdome may not dwell in the shade but that they may be able to understand them with clearnesse and perspicuity and to demand them with force and vigour as our Ancestors in times of old have in like case done To make a cleare demonstration whereof we will follow the order of the six Particulars before mentioned to be emergent out of this Charter of our liberties And first touching our caption and imprisonment Nullus liber homo capiatur aut imprisonetur nisi per legale judicium Parium suorum vel per legem terrae Let no freeman of England which is every man born in the Realm be taken or imprisoned but by lawfull judgement of his Peeres or the law of the land This is the context of this clause Every Arrest or Attachment is comprised within it See Cook 2. part Instit pag. 46. What the Law was before the making of this Law we have in part declared already we shall onely adde this That imprisonment without lawfull cause was so odious that among the lawes of King Alfred cap. 31. wee find this Qui immerentem Pagaum vinculis constrinxerit decem solidis noxam sarcito If a man should unjustly imprison a Pagan or a Heathen man hee should redeem his offence with the payment of ten shillings no small summe in those dayes This is a perfect badge of liberty by our lawes Let us now examine what it hath been since by the Stat. of 25. E. 3. cap. 4. It is ordained That none from henceforth shall bee taken by petition or suggestion made to our Lord the King or to his Counsell unlesse it bee by Indictment or Presentment of his good and lawfull people of the same neighbourhood where such deeds be done in due man-manner By the Stat. of 25. E. 3. cap. 3. No man shall bee imprisoned without being brought to answer by due processe of law By the Stat. of 4◠E. 3. c. 3. It is accorded for the good Governance of the Commons That no man bee put to answer without presentment before Justices or matter of Record or by due Processe or Writ Originall according to the old law of the land And if any thing from henceforth be done contrary it shall be void in law and holden for error We need not cite the Petition of Right or other Acts of Parliament mentioned in our former Treatise for vindication of Liberty against Slavery Let us now examine the Responsa prudentū upon these Statutes and the Judgements given by those Sages 45. Ass Plea 5. Fitzherbert Title Assise nu 346. wee find that the Bayliffe of Chensford in Essex was indicted before Knevet and Thorp by vertue of a Commission of Oyer Terminer for imprisoning a man taking his goods by vertue of a Cōmission out of Chauncery which he pleaded in his justification The resolution was That the Cōmission and imprisonment were against law to take a man his goods without indictment or suit of the party or other due processe of law 33. E. 3. Fitzh title Trespasse 253. It is declared for Law That the Command of the Lord is not a sufficient warrant to one to take his villeine without due processe of law May 16. H. 6. Fitz. Monstrans de faites nu 182. It is declared for Law That if the King cōmand a man to arrest one and the party doth it in his presence the arrest is unlawfull the party arested may have his action of false imprisonment 24. E. 3. fo 9. Be. faux Imprisonment 9. You may find that a Commission was directed to men to take divers notorious Felons before they were indicted and this Commission was adjudged void in Law We need not mention the resolution of the Judges in this point of Liberty you may find it reported by Sir E. Cook in his Reports 9. Ja. f. 66. There are a thousand cases more cited in our books of law to prove this undeniable truth out of which we only cited these to inform the free Subjects of England That neither the King by his command or commission nor his Councell nor the Lord of a Villayne can or could imprison arrest or attach any man without due processe of law or by legall judgement and law of the land against the forme of our defensive Charter of Liberty no not a Pagan or Heathen could be unjustly imprisoned or arrested without due processe of Law But to discourse here the manifold imprisonments of the free-born people of this Kingdom contrary to their Birth-right this Free Charter and contrary to the known lawes of this Realm or to shew forth all the illegall processe whereby men are now adayes arrested attached or imprisoned contrary to this Charter and the lawes before recited as Latitats Capiats pro debito Attachments and Messengers would be infinite and require a volume Which is worth the making by it selfe Onely thus far we may be bold to demand by what Law Statute or other legall power the Committee of Examinations Committees of Excise and Sequestrations nay all Committees nay more their Sub Committees take upon them to commit to prison nay without Baile or Mainprise the free-born Subjects of this Kingdome without lawfull processe triall or conviction and most manifestly against the law of the land For if those whom we have elected to sit at the Helme of the government for us as our Trustees for preservation of our Liberties be by right of their places Judges we are sure they cannot depute their Authorities For a Judge cannot delegate his power to another nor make a Deputy to judge for him And this appeares by the Books of 2. H. 6. f. 37. 9. E. 4. f. 31. 41. 10. E. 4. f. 15. 11. E. 4. f. 1. I am sure wee have not sent them thither and given them the places of their trust to Them and their Assignes therefore their Committees or Assignees cannot execute their Judiciall power which as to the matter of imprisonment is one and the chiefest of their Judicial powers so it bee according to due processe of Law But wee will not wrong these Noble Patriots the Commons of England whom wee have chosen to be the Guardians of our Liberties either to suspect them not to be our competent Judges and Judges of Record too or that they intend to commit our liberties to their committing Commities since that by deputing such Committes and investing them with their own powers it argues the givers rather to be Ministeriall then Judiciall Officers We come now to the second particular which is That no man shall be desseised of his Free-hold or Liberties or free customes but by lawfull judgement of his Peeres or by the law of the land We need not insist
the Parliament or any other that sits in the Lords house by Writ Et non ratione nobiliatis can be a tryer of a Lord of the Parliament or challenge this priviledge of tryall in case of Treason Fellony or other capitall offence But a Noble-man of the Parliament shall not have this priviledge either upon an Indictment of Praemunire or upon an Appeale of Fellony at the suit of the party or in any Civill-Action either concerning the right of Lands or of other Possessions or in any personall Action brought by a Common-person against a Lord of the Parliament as appeares unto us by the Bookes of 1. H. 4. f. 1 13. H. 8. f. 12. 10. E. 4. fol. 6. This tryall of Noble-men by their Peers at the Kings Suit is not upon Oath as in the case of common persons for the Peers are not sworn before the Lord Steward before whom this tryall must bee had but they are to be charged by the Lord Steward super fidelitatibus ligeantiis Dom. Regi debitis that is upon their faith and allegeance due to the King and if they acquit the Peer or Noble-man upon whom they passe the Entry is Willelmus Comes E. cateri Antedicti pares instâ—nter super fidelitatibus ligeantiis dicto Dâ—m Regi debitis per praefaruÌ„ SenescalluÌ„ ab inferiori usque ad supremum separatim examinati dicunt quod Wil. Dom. Dacre nox est Culp and so was the Entry in the case of the Lord Dacres 26. H. 8. Spilmans Reports and Cookes Instit 3. part p. 30. If a Noble-man be indicted of Treason Felony or Murder and cannot be found he shall be outlawed by the Coroners of the County and in case of Clergy no Noble-man shall have more priviledge then a common-person where it is not specially provided for them by Act of Parliament as by Stamford pl. Cor. p. 130. is made manifest out of all which we gather that a Nobleman hath this priviledge of tryal as well per lege terra as by this Charter and that anciently legale judicium parium or lawfull tryall of Peers for all manner of persons aswell Noblemen as Commons was vere-dictum duodecim proborum legalium hominum de vicineto a verdict of 12. good and lawfull men of the Neighbour-hood that is of the Commons of England so still remains saving only in this excepted case by the Great Charter which shewes that there can be no legale judicium or lawfull judgment but it must be per legem terrae or according to the Law of the Land which is the other branch of this judgment as to the Commons of England Now to prove that legale judicium parium or lawfull judgment of a mans Peers or Equals is by verdict of 12. men and not otherwise for the word Peers vinvocally signifies both Let us consult both the judgment of Parliaments in this point and the fundamentall lawes of the Land And first for the opinions of Parliaments in this point we finde that by the statute of 25. E. 3. c. 4. None shall be taken by petition or suggestion made to our Lord the King or to his Councell unlesse it be by indictment or presentment of his good and lawfull people of the same neighbour-hood 42. E. 3. c. 3. It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices 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 froÌ„ henceforth contrary it shall be void in law and holden for errour and to say one word for all there are above 50 statutes now in print and in force that warrant this tryall or legale judicium parium suorum or tryall by a mans Equals or Peers made since the Great Charter in severall cases the citing of which statutes for prolixity we avoid And that this manner of tryall was the old law of the Land wee are here to make it appear that this manner of tryall is according to the law of the Land and that there is none other wherein we are to observe this distinction that this legale judicium or lawfull judgment is two-fold The one is of the matter of Fact The other is of matter of Law That which is of matter of Fact is to be tryed per legale indicium parium or a lawfull tryall of a mans Peers That which is of matter of Law is to be tryed by the Judges or Justices of the Land authorized thereunto by the Kings lawfull Commissions To prove that there is no other lawfull Judgment of our Peeres or Equals As touchiug the matter of Fact we are to examine the foundation of this Common-wealth and the originall constitutions thereof We find that King Alfred having reduced this Kingdome of England into an Entire-Monarchy divided it into 38. Counties and each County into severall Hundred and Mannors The Counties were put under the government of Earles who substituted under them Viscounts or Sheriffes for the quiet government of the people the Hundreds and Mannors subordinately under the severall Lords of them The Sheriffes had two Courts to wit the Sheriffes-Tourn and the County-Court The first for offences against the peace of the Land The latter for entry and determination of civill-causes between party and party In the first indictment or presentment of offences was made per-Enquest that is by Juries In the second the Free-suiters that is men of the neighbor-hood The like was done in the leets or viewes of Frankepledge and Hundred-Courts in the Hundreds The like proceedings was in the Leets and Court-Barons of Mannors in those Courts There was no condemnation or judgment given but by the Enquirie of good and lawfull men of the neighbor-hood This every book of the Law tells us for more particular satisfaction read Horn f. 8. and fore-ward These Courts were formed after the modell of the greater Courts of the Realme the Kings-Bench and Common-pleas where greater jurisdiction was as to the matter to be enquired of but no variation originally in the manner of proceeding only the jurisdiction of the Court of Kings-Bench and Common-Pleas in tryals of actions ad dampnum 40. s. flowed over the whole Kingdome The other Courts were confined to their severall limits and might not exceed 40. s. damages these were the originall Courts of the Kingdome and the legale judicium parium or lawfull judgment of Peers was only tryall by Jury of Equals before this great Charter From which tryals this clause is inserted into it and by an inviolable right of law continues in force even to this day as every free subject of England by experience knowes and as every book of our law proves into us the verdict of the Jury in criminall causes being the judgment of Attainder and in civill causes a condemnation as Stamford pl. Cor. p 44. and ali other bookes prove And to leave every man without
try me or any Commoner whatsoever in any criminall cause either for life limb liberty or estate But contrary hereunto as incroachers and usurpers upon my freedomes and liberties they lately and illegally endeavoured to try me a Commoner at their Barre For which I under my hand and seale protested to their faces against them as violent and illegall incroachers upon the Rights and Liberties of me and all the Commons of England a copy of which c. I herewith in print send you And at their Barre I openly appealed to my competent proper legall Tryers and Judges the Commons of England assembled in Parliament For which their Lordships did illegally arbitrarily and tyrannically commit me to prison into your custody Which Protestation and Papers and matters therein contained doe falsly and scandalously and maliciously charge the Peeres in Parliament with tyranny usurpation perjury injustice and breach of the great trust in them reposed and are a high breach of the Priviledges of Parliament And are high offences against the Lawes and Statutes of this Kingdome and doe tend to the great scandall of the said Peeres and the authority with which they are intrusted to stir up differences between the said Peeres and other the Subjects of this Realme Natha Finch Vpon which Articles he refusing to hear them read as concerning their proceedings against him to be illegall and that as a Commoner of England they had no jurisdiction over him they proceeded to sentence him as followeth Iuly 10. 1646. JT is to be remembred that the 10. day of Iuly in the 22. Year of the Raign of our Soveraign Lord King Charles Sir Nath. Finch Knight His Majesties Serjeant at Law did deliver in before the Lords assembled in Parliament at VVestminster certain Articles against Lieutenant-Colonell Iohn Lilburn for high Crimes and Misdemeanours done and committed by him together with certain Bookes and Papers thereunto annexed Which Articles aad the said Bookes and Papers thereunto annexed are filed among the Records of Parliament The tenour of which Articles followeth in these words Which Articles being by the command of the Lords then and there assembled in Parliament read It was then and there that is to say the said 10. day of July by their Lordships ordered That the said John Lilburn be brought to the Bar of this House the 11. day of the said July to answer the said Articles That thereupon their Lordships might proceed therein according as to Justice should appertain At which day aforesaid the 11. day of July Anno Dom. 1646. the said John Lilburn according to the said Order was brought before the Peers then assembled and sitting in Parliament to answer the said Articles And the said John Lilburn being thereupon required by the said Peers in Parliament to kneel at the Bar of the said house as is used in such Cases and to hear his said Charge read to the end that he might be inabled to make defence thereunto The said John Lilburn in contempt and scorn of the said high Court did not only refuse to kneel at the said Bar but did also in a contemptuous manner then and there at the open Barre of the said House openly and contemptuously refuse to heare the said Articles read and used divers contemptuous words in high derogation of the Justice Dignity and Power of the said Court And the said Charge being neverthelesse then and there read the said John Lilburn was then and there by the said Lords assembled in Parliament demanded what Answer or Defence he would make thereunto the said Iohn Lilburn persisting in his obstinate and contemptuous behaviour did peremptorily and absolutely refuse to make any Defence or Answer to the said Articles and did then and there in high contempt of the said Court and of the Peers there assembled at the open Bar of the said House of Peers affirme that they were Usurpers and unrighteous Judges and that he would not answer the said Articles and used divers other insolent and contemptuous speeches against their Lordships and that high Court Whereupon the Lords assembled in Parliament taking into their serious consideration the said contemptuous carriage and words of the said John Lilburn to the great affront and contempt of this high and honourable Court and the Justice Authority and Dignity therof It is therefore this present 11. day of Iuly ordered and adjudged by the Lords assembled in Parliament That the said Iohn Lilburn be Fined And the said Iohn Lilburn by the Lords assembled in PARLIAMENT for his said contempt is Fined to the Kings Majesty in the summe of two thousand pounds And it is further ordered and adjudged by the said Lords assembled in Parliament That the said Iohn Lilburn for his said contempts be and stand committed to the Tower of London during the pleasure of the said House And further the said Lords assembled in Parliament taking into consideration the said contemptuous refusall of the said Iohn Lilburn to make any Defence or Answer to the said Articles did declare That the said Iohn Lilburn ought not thereby to escape the Justice of the House But the said Articles and the Offences thereby charged to have been committed by the said Iohn Lilburn ought thereupon to be taken as consessed Wherefore the Lords assembled in Parliament taking the premises into consideration and for that it appeares by the said Articles That the said Iohn Lilburn hath not onely maliciously published severall scandalous and libellous passages of a very high nature against the Peers of Parliament therein particularly named and against the Peerage of this Realm in generall But contrived and contemptuously published and openly at the Barre of the House delivered certain scandalous Papers to the high contempt and scandall of the Dignity Power and Authority of this House All which offences by the peremptory refusall of the said Iohn Lilburn to answer or make any Defence to the said Articles stands confessed by the said Lilburn as they are in the said Articles charged It is therefore the said Day and Year last above-mentioned further ordered and adjudged by the Lords assembled in Parliament upon the whole matter in the said Articles contained I. That the said Iohn Lilburn be Fined to the Kings Majesty in the summe of two thousand pounds II. And that he stand and be imprisoned in the Tower of London by the space of 7. years now next ensuing III. And further that he the said Iohn Lilburn from henceforth stand and be uncapable to bear any Office or Place in Military or in Civill-Government in Church or Common-Wealth during his life Die Sabbathi 11. Julii 1646. ORdered by the Lords in Parliament That Iohn Lilburn being sentenced by this House shall for his high Contempt and Misdemenors done to this High Court according to the said Sentence stand committed to the Tower of London for the space of 7. Years next after the date hereof And that the Lieutenant of the said Tower of London his Deputy or Deputies are to keep
him in safe custody accordingly And that he doth take care that the said Lilburn do neither contriue publish or spread any seditious or libellous Pamphlets against both or either of the Houses of Parliament To the Lieutenant of the Tower of London his Deputy or Deputies And because this Sentence was conceived not to be severe enough by the Lieutenant of the Tower hee did procure an Order dated Die Mercurii 15. Julii 1646. which followes in these words Die Mercurii 15. Iulii 1646. ORdered by the Lords in Parliament assembled That none shall speak with John Lilburn now a prisoner in the Tower of London but in the presence and hearing of his Keeper And that when he shall desire to take the Ayre within the Tower his Keeper shall constantly goe with him forth and back and stay with him till he return to his Lodging and that if his wife desire to come to him she shall reside with him and not go in and out during his imprisonment in the said Tower And lastly it is Ordered That this restraint of speaking with the said Lilburn shall be taken off when he shall give good Bayle to this House not to contrive write or publish any scandalous or libellous Pamphlets or Papers against both or either of the Houses of Parliament Die Mercurii 16. Septem 1646. IT is this day Ordered by the Lords in Parliament assembled That the Lieutenaut of the Tower of London his Deputy and all others imployed him shall permit and suffer the wife of Lieutenant-Colonell Iohn Lilburn to come to him and reside with him when and as often as he shall desire any former Order of this House notwithstanding Iohn Brown Cler. Parliamentorum We will not say their Lordships are unjust in this Sentence yet we hope it shall not be accounted scandall to them if we say and make it appear that they have erred therein both in manner of proceeding and in substance of matter or point of jurisdiction both of the person and cause for we do presume that their Lordships will not presume an infallibility of Judgment it being a quality incompatible to or with any sublunary creatures and wee finde by our bookes of 21. E. 3. f 46. that a Parliament may and hath erred And first we shall declare their Lordships errour in their manner of proceeding against this worthy Patriot wherein we shall observe That the 10. of Iune he was summoned to attend their Lordships in their house The 11. of Iune he appeared and was then committed by their Lordships to Newgate The 16. of the same moneth he appealed to the Right Honourable House of Commons The 22. their Lordships sent to the Keeper of Newgate to bring him to their Bar And thereupon the 43 day he was committed close prisoner to Newgate being brought by the Keeper of Newgate where he remained close prisoner till the 16 of Iuly At which time his Charge was brought into the Lords House and not before Wherein we are first to note that he was summoned and committed a moneth before his Charge brought in and after his appeal and for that cause made close prisoner 18. dayes before any Charge recorded against him All which proceedings are erroneous and principally in these two points First because he was summoned before his Charge was recorded for regularly both in Law and Equity the Declaration or Bill ought to be filed or recorded before any Writ or Processe ought to issue against the Defendant or Party accused either in civill or criminall causes and the Writor Processe ought to contain the matter of the Declaration or Bill as in a Writ of Right These words Quid clamat tenere import a Count or Declaration recorded so a Writ of Warrantia Diei contains the substance of the Count in a Monstraverunt the Plaintiffs title is set forth by the Writ Nay in every Writ at Common-Law the Writ doth by these words ut dicitur or by some other Emphaticall word contained in the body of the Writ import that a Declaration or Count is filed registred or recorded before the Writ doth issue and this appears clearly in every Writ set forth by the Register and Fitzherberts Natura brevium Nay every English Bill either in Chancery Exchequer or Star-Chamber doth pray that Processe of Sub-paena be awarded against the Defendant which proves that processe ought not to be awarded against any man out of any Court till his charge bee recorded against him in the same Court If this was so in the Justice of the Star-Chamber in criminal causes we hope their Lordships will not condemne it as an Injustice in themselves to follow the same Rules of Right Reason Law and Equity Secondly their Lordships proceedings against him after his Appeal made to the honourable house of Commons were void in Law for by the Appeal to the proper jurisdiction the Lords were outed of their jurisdiction or Connusans of the Plea sublata causa tollitur effectus the Cause being removed by the Appeale their judgment thereby was determined or at least suspended being but the effect of the cause before them till such time as the Appeal is determined the Appeal being a supersedas to their Lordships further legall proceedings in the same cause and wherein they ought not to have proceeded without the privity licence and direction of the house of Commons and therefore all their proceedings since Mr. Lilburns Ap. peal presented to and accepted by the house of Commons are Coram non judice and therefore void and erroneous We shall not deny the Lords house to be a Court of Justice and that of Record too and of the highest degree in the Kingdom co-operating with the honourablt House of Commons but when they are distinct and apart in their severall operations and judgments we do conceive that they neither have a legislative nor unlimitted power of judicature in themselves neither can they proceed to determine any thing out of the way of the known Lawes by any arbitrary or discretionary Rules where there is a known Law in the case Sir Edw Cook doth well set forth the distinct powers of Judicatures of both houses in his 4. part of Institutes p. 23. It is to be known saith he that the Lords in their house have power of Judicature and both Houses together have power of Iudicature which is thus to be understood That the Lords have power of Iudicature over their Members alone viz. their Peers the Nobility of England that sit in the Lords House The Commons have power of Iudicature over all the Commons of England by themselves alone and the Lords and Commons joyning have power of Iudicature over both Peers Lords and Commons That this is true is manifest by the Lord Dacres case p. 26 H. 8. reported by Iustice Spilman where it was resolved that a Noble-man of Parliament cannot wave his tryall by his Peers and put himselfe upon the tryall of the Country for by the Statute of Magna Charta c. 29 every
f. 10. Be tit Parl. 42. We find that in Parliament the King would that I. S. shouldbe attainted and lose his Land and the Lords did agree and nothing was spoken of the Commons and this by all the Judges was held no good attainder or judgment and therefore he was restored to his Lands for there can be no attainder by Parliament but by Act of Parliament that is by judgment of both Houses and consent of the King for the King as Sir Edward Cook saith is of the Parliament caput principium finis the head the beginning and the end But some will say that the Lords have a Judicature a-part from the Commons which they have long used It is true they have and it is only in some particular cases and their power is given them by Act of Parliament by the stature of 14. E. 3. c. 5. in case of delay of Justice difficulty of judgment or cases of errours and is confirmed unto them by the stature of 25. El. c. 8. and 31. El. c. 1. But we cannot find by any of our bookes in Law and wee are confident no man can shew us that the Lords by themselves apart or without the assistance and without judgment of the Commons did hold plea in any of those cases before that statute of 14. E. 3. For the first cases that we find of any proceedings in those cases before the Lords were in 16. E. 3. Fitzh tit briefe 561. and in 24. E. 3. f. 46. 22. E. 3. Fitz. error 8. and other bookes out of which good notes may be drawn to fortifie our assertions withall if need in so plain a case did require By all which cases and presidents we may assuredly conclude That the Lords in their House have no jurisdiction over the Commons in any other cases then delay of Justice difficulty of Judgment or matter of Errour as aforesaid And this is agreeable to the statute of 25. E. 3. c. 4. Where it is accorded assented and established that from hence-forth none shall be taken by petition or suggestion made to our Lord the King or to his Councell unlesse it be by indictment or presentment of his good and lawfull people of the same neighborhood or by processe made by Writ originall at the common-law and to the other statutes afore-mentioned and bindes the House of Peers as well as any other Court of Judicature at Westminster as they are of the Kings Councell and sit by vertue of the Kings writ and Commission as they have often by their own Declarations manifested If it be objected that their Lordships being a Court of Judicature are only to proceed secundum legem consuetudinem Parliamenti according to the Law and Custome of the Parliament We answer that we grant that it must be secundum legem according to law which is according to the Great Charter and the laws before cited and as touching the custome of Parliament we say that the Lords house cannot have any pretence by custome to judge a Commoner of England since that it appeares by the presidents afore-mentioned namely Sir Simon de Berisfords case which was 4. E. 3. and by that of the same date cited out of Sir Edward Cooke that before the division of the Houses it was enacted and assented that the Peers for the time to come should not judge a Commoner as being against Law as aforesaid And therefore that Custome being against Law and prohibited by Act of Parliament must needs be void in Law For no Custome that is against Law or an Act of Parliament is valid in Law Neither can they have any good Custom by usage of such power since the division of th Houses though they have actually judged Commoners it being within time of memory since the Houses were divided that is to say since the time of King Richard the first which is the limitation of prescriptions and since which time no good custome can bee grounded the contrary appearing by matter of Record as aforesaid And albeit they have judged Commoners it makes not for them for a facto ad jus non valer argumentum because they have done it in fact therefore they may now do it of right followes not For if those Commoners that were judged by them did not stand upon their priviledge nor demand an exemption from the judgment of the Lords they did only lose to themselves the particular benefit of Appeale for vigilantibus non dormientibus jura subveniunt the lawes only assist those that claime the benefit of them not those that pray not in aid of them and such presidents ought not to be cited in prejudice of others that are more watchfull over their liberties But wee have another objestion made that there is matter of scandall against a Peer of that House contained in Mr. Lilburres Charge and therefore fit to be examined there We acknowledge the Earl of Manchester to be a person of great honour and will not blemish him as he stands unheard with a supposition of his being guilty But neverthelesse we conceive that it would not have lessened his honour to have preferred some Information in the Kings Bench or brought some Action at Common-Law upon some of the statutes de scandalis magnatum for the supposed slander contained in the bookes written by Mr. Lilburn whereunto Mr. Lilburn might have pleaded his lawfull plea either by may of justification or deniall as his case would require him In both which cases Mr. Lilburn should have been tryed by a Jury of 12 honest men Commoners his equals and my Lord have avoyded any suspition of being partiall in his own cause as it is said in the book of 8. H. 6. f. 14. Br. Coâ—â—sans 27. of the Chancellour of Oxford or that he went about by this so sudden and summary proceeding to hinder or fore-stall the evidence that might bee against him in his own cause and Mr. Lilburn had had a legall way for his defence for if he had justified the supposed scandall and proved it it had bin no scandal the Jury must have acquitted him if he had pleaded not guilty and for the words proved against him he must have paid dammage to the Earle as the Jury should have assessed And this had been and is the only way of tryal in such a case and is according to the statute of Magna Charta and the Law of the Land and it is a Maxime in Law That where remedy may bee had by an ordinary course in Law the partie grieved shall never have his recourse to extraordinaries Therefore if a man should say of the Lord Chancellor or Lord Keeper of the Great Seal that he was a corrupt Judge and that he gave a corrupt judgment in such a Cause depending before him upon an English Bill in Chancery The Lord Chancellor or Lord Keepers remedy against that person for this scandal is upon these statutes and not by an English Bill in Chancery before himself to be
common-wealth to punish an ill member then to reward a good act Wee also affirm that a State or a Common-wealth that will keep it selfe in good order and free from ruine Must cherish impeachments and accusations of the people against those that through ambition avarice pride cruelty or oppression seeke to destroy the liberty or property of the people So shall they keep their Estate free from envie and secure from supplantation for it is an efficacious meanes to continue the people in a faire obsequency to parlie often with them upon their grievances and to provide speedy and proper remedies We therefore humbly desire you to take into your serious considerations the great oppressions committed by these Countrey-Committees who thinke there is no better way to govern the kingdome then by lying with those Concubines of Sovereignty Tyranny and Arbitrary government as Absolom did with his fathers These Horse-leeches of the Common-wealth who hang upon the limbs of it and will continue sucking out the blood of the poore Countries till their bellies are full and then like 〈◊〉 and unprofitable vermin will fall off your service to their own ruse If you think to bind those people to you by the oppressive profits of their places you are deceived For benefits bind not the covetous but the honest and those that are but greedy of themselves do in all changes of fortune only consult the preservation of their own greatnesse Besides this inconveniency will attend their actions that by making a few rich you undoe multitudes and lose the hearts of many that by clemency may be gained to inrich a few by rapine that when they are grown wealthy will think of nothing more then to preserve their ill-gotten treasure and will never venture when necessity challenges it one drop of blood in your cause We speak not this out of any affection to the Royall party but out of our hatred and detestation to oppression and rapine it being the onely meanes to overthrow this State For it is most certain that these people are easily drawn into Commontion who by their poverty are assured to lose nothing being by nature alwayes desirous of innovation Wherefore we heartily wish the suppression of those ravenous Committees as utterly destructive to the peace and assurance of the present State and Government But if they shall say in defence of their actions that they onely poll the Royall parly and such as have been in Armes against the Parl we wish they were so innocent as they pretend rhemselves that they would pay the Souldiers better cleare their accounts to their masters that have imployed them which when they shall effect they shall receive our better opinion and till that time they must be content to labour under their crying accusations But admitting their objection to be true yet we are of opinion that courteous and charitable acts work much more in mens minds that are subdued then those that are full of violence cruelty hostility For Seneca saith Mitius imperanti melius paretur they are best obeyed that govern most mildly And Machiavel ubi supra p. 542. observes that one act of humanity was of more force with the conquered Falisci then many violent acts of hostility Therefore we wish these eager Committe-men to consider for the good of the State they pretend to serve that it is commodious for those that lay the foundation of a new State or Soveraignty to have the fame of being just and mercifull For as Justice and Clemency in good Princes or Soveraignes are the best meanes to keep the subject fast bound unto them in obedience and duties so are cruelty oppression and rage bridles wherewith tyrants keep their subjects in awe and subjection unto them and themselves in their estates And let these Committee-men so order their actions in screwing the Countries that they sow not a jealousie among the free-born people of England that they intend to hold up that common Maxime of all oppressing States which is That their interest is to maintain the publick wealthy and the particular poore which if once the common people apprehend they are not long to bee held in obedience For where a State holds their subjects under the condition of slaves the conquest thereof is easie and soon assured And when a forced Government shall decay in strength it will suffer as did the old Lion for the opprssion done in his youth being pinched by the Wolf goared by the Bull and kickt also by the Asse as Sir Walter Raleigh l. 5. fol. 501. wittily observes And then when it is too late they complain of their hard fortune for sorrow can give remedy to mischiefes past and anger is vaine where there wants forces to revenge Correct those mercilesse sons of Cerberus those greedy Goalers excessive demands and extortions of fees from their distressed prisoners Suffer not that vengeance which the complaints and groanes of those miserable and oppressed soules will draw down from the most just God for this kind of oppression to fell upon your heads by your connivence at and tolleration of their exactions And if that cannot move you yet let us advise you not to permit them to create Presidents of oppression to enslave your posterity in future times For who knowes what a day may bring forth There is no new thing under the Sun Therefore there is no confidence to be had in our present condition since as the Preacher tells us Eccles 1. 4. One generation passeth and another cometh but the earth endureth for ever Be just and mercifull therefore O yee Rulers and Judges of the earth and remember that for all these things you shall one day be brought to judgment And this consideration prompts us further to intreat and implore you to keep and observe the known written and promulged laws of this land if you keep them they will keep you Abolish and abandon as an infectious disease to your State all arbitrary power and discretionary government in prerogative times falsly called the Prudentiall way There is nothing of worse example in a Republick then to have good lawes and not to observe them Good government procures love from the Subject and it is onely their love that supports a State in time of adversity The Nations that endure the worst under their own Governours are not greatly fearfull of a forraign yoak whereas men when they are well governed never seek after other liberty That government is of all most sure where the people take joy in their obedience The Samnits rebelled against the Romanes because Peace was more grievous to them in subjection then War to those that enjoy their liberty And on the contrary Petillia a City of the Brutians in Italy chose rather to indure all extremity of War from Hanniball then upon any condition to forsake the Romanes who had governed them moderately and by that good government procured their love yea even at the time when the Romanes sent them word they were not