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A66022 The lawes subversion: or, Sir John Maynards case truly stated Being a perfect relation of the manner of his imprisonment upon pleasure, for the space of five moneths by the House of Commons, and of the impeachment of high treason exhibited against him before the Lords, together with all the passages between him and the Lords, in messages to them, and speeches at their barre, as they were taken from his own mouth. VVherein also is contained a cleare discovery of the dangerous and destructive infringement of our native liberties, and of the arbitrary government now introduced by an aspiring faction over-awing the Parliament. Also that groundlesse false report concerning Sir Iohn Maynards submitting to the Lords jurisdiction refuted, to the shame of the reporters. By J. Howldin, Gent. Wildman, John, Sir, 1621?-1693. 1648 (1648) Wing W2169A; ESTC R204812 33,799 42

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proceeded to cut in sunder the p●●me roots of ●reedome Secondly Sir Iohn Maynard obeying M. Speakers illegall Warrant and att●nding the Hous● M. Miles Corbet made his report concerning him from the Committee and produced some papers pretending they were written by Sir John and thereupon M. Corbet examined Sir J●hn upon interrogatories as whether those papers were written or subscribed by him and this interrogatory they doubled and redoubled Observe reader how they wander in the devious crooked wa●es of injustice when they have fors●●en the paths of righteousnesse see the deformity and obliquity of their actions when they refuse to measure them by the rules of the Lawes established Was it possible 5. years since to have possessed any ingenious man that this Parliament would have deviated so far from the rules of law and justice yea the common light of nature as to examine any man upon interrogatories against himself in a criminall case would any have believed that this Parliament should have degenerated so far as to indeavour to compell a man to destroy himself Is it not a ●●ddle surpassing all that this monstro●s age hath produced that this Parliament that hath deemed the Starre-Chamber and the Councell Table● names worthy to be a curse and a by-word ●o posterity because of their cruelty in censuring men for refusing to answer interrogatories that this Parl. I say s●ould urgently presse Sir Io. Maynard to answer interrogatories against himself in this criminall case Is it credi●le that this Parl. who complained in their first Remonstrance of the state of the Kingdome 1. part Book Dec. p. 8. 〈…〉 upon the people or that th●s 〈…〉 ●ct of 〈…〉 is ●●●redible I say that they 〈…〉 ●ands have destro●ed who c●n 〈…〉 rather ●mpute these proceedings to the 〈…〉 ●ohn it seems resented 〈…〉 to answer M. Corbe●● redoubled Que●es ave●ring 〈…〉 had better taught him then to ●●st 〈…〉 own destruction I with Sir Iohn had kept his ground 〈…〉 defia●ce to the in●ade●s of Englands Liberties in this particular with as muc● 〈…〉 hath since manifested in some other particulars of 〈◊〉 importance but by 〈◊〉 estooped beneath h●mse●fe F●rb● their importunity ●ee ans●●red their interrogatories negetively That ne●●●er ●●e papers pr●●●c●d nor th●●●me sub●… Sir Iohn Maynard humbly moved for a Copy of the Charge brought into the H●use against ●i● b● Mr. Corbet and time and Lib●rty to exam●●● his own w●t●●ss●s by whom ●e ●ffered to p●●v● the falsity of the most m●●●ria●l things obj●cted against him But such was the rigour of the prosecute●s and Ju●●e for they went one and the same that Magna Charta P●●i●●n of Right the Stattute o● 37. ●dw 3. 18. and the Statute 38. Edw 3. and the 42. Edw 3 3. not one ●o●all of these could either by their glittering bea●es of Justice a●lu●● them or by an awfu●l Majesty constraine them to preserve inviolate this Na●ive Liber●y though the recited sta●ute say expresly that no man shal● be taken c. nor disfrienged of his Free-h●uld but by the lawfull Judgement of his Peers or by the Law of the Land that is by being brought to answer by due proces●e of Comm●n Law now who is ignorant that it 's contrary to all the p●●●●edings at Common Law to have a Charge in an English Court a●d yet to be denied a Copy whereupon to returne answer or to be denied Councell in th● 〈◊〉 of Law was it ever known that the m●st infam●●s se●●n was denyed Cou●cell at the Kings Be●ch Barre if ●● pleaded the insuffi●cenc●y of the indictment in Law and 〈…〉 more u● a●swerable reason that Sir Iohn should have had a Copy of the House of Commons Charge being it is an English Court and C●u●cell also assigned him upon his Pica that the Charge against him was not leg●ll Notwithstanding all these ir●eguler arbitrary proceedings the House being reduced to about ●● pas●●d Judgement upon Sir Iohn Maynord t●●t he should be expelled the House Observe how the foundation of Englands Freedom is subverted this Gentleman a Commo●er of England is dis●eized of his c●o●sest Franchises or Liberties the place of highest trust contrary to the established Lawes This Censure is passed upon him wit●o●● one witnesse being heard in op●n Court either pr● or co● a●d the Gentleman that made the report from the Committee onely named one witnesse which he said he could produce as to any particular objected against him Now by the Statute of 5. Edw 6. C. 11. It is provided that no man should thenceforth be indicted for any Tre●so● that then was or from that time should b● from Iune then next ensuing perpetrated committed or done unlesse the offender be thereof accused by two lawfull accusers except the party shall without violence conlesse the same yet here you see a Judgement in Parliament passed against S●r Iohn for the pret●nded c●ym●s which they stile T●●ason although there was a pretence but of one acc●●er or witnesse to any 〈…〉 2. This Judgement is passed against this Gentleman before his Pica to the legali●y of the Charge was freely a●gued by Councell and j●stly determi●ed whereas comm●n reason dictates that the matter of ●●ct come● not in question untill the Charge or accasation be it as it ●ught ●o be by perscentment or indictment un●il I see the legality of that be determined Now if the C●mmone●s of England may be disleized of their ch●isest Freedoms and priviledges contrary to the known Law yet to the universall Commands of nature what Basis or foundation of Freedom remaines firme what security to the life of any Commoner of England more then the good will of the prevailing party But a further progresse was made towards subversion of our Liberties A further Judgement was passed against Sir Iohn Maynard viz. That he 〈…〉 to the Tower to remaine a prisener there during the pleasu●e of the H●n●● There was no cause specified of this censure either in the Clarkes Book or in the Warrant or Mittimus directed to the Lieutenant of the Tower By vertue of an Order of the House of Commons these are to require you to receive from the Serjant at Armes or his Deputy the Body of Sir John Maynard Knight of the Bath into the Tower of London and him there to detaine in safe Custody as your Prisoner untill the pleasure of the House be signified to you to the contrary And for so doing this shall be your Warrant To the Lieutenant of the Tower in London Dated Sept. 1647. William Lenthall Speaker Here is the impoysoned arrow shot through the principall Vitall of Englands Liberty here is equity Law and Justice de●hroned and absolute will or blind lust challenging the proper imperiall seat of England This Commitment drawes the black line over the name of English Fredom yea the line of confusion upon the K●ngdom If the Supreame Authority shall thus actually a●ow that they are to Governe ●●ose and dis●olve all Laws of Government * to
The Lawes Subversion OR Sir John Maynards Case truly stated BEING A perfect Relation of the man 〈…〉 s imprisonment upon pleasure for the space of 〈◊〉 moneths by the House of Commons and of the Impeachment of high Treason exhibited against him before the Lords together with all the passages between him and the Lords in Messages to them and Speeches at their Barre as they were taken from his own mouth VVherein also is contained a cleare discovery of the dangerous and destructive infringement of our native Liberties and of the arbitrary Government now introduced by an aspiring Faction over-awing the Parliament Also that groundlesse false report concerning Sir Iohn Maynards submitting to the Lords Jurisdiction refuted to the shame of the Reporters By J. Howldin Gent. Printed for Ja. Hornish 1648. Sir John Maynards Case truly stated MUch admired Aristotle Tutor to the greatest Emperour Alexander the great was of opinion that the Lawes a not Kings Princes or Magistrates be they one or more or never so good ought to be sole ●ords or Rulurs of the Common-wealth and that Princes and Governours ought to governe by the Lawes and can●ot co●mand what the Lawes do not command and ●n his judgement those who command that the Law should rule command th●t God should rule but he that commands a man to be a Prince i. e. to be an absolute Ruler commands that ●●th a man and beast should be Prince● for 〈…〉 and the lust of the mind are br●tish affect●ons 〈…〉 b●th Mag●strates and the very best of me● out the Law●● a constant a●d quiet mind and reason ●o●d of all 〈…〉 and desire answerable to this opinion have 〈…〉 proceeded in their first Constitution of their Governm●●●● Pelitius saith that Kingdomes b were first erected and 〈◊〉 on the worthiest men by the free voluntary joynt ●●●sent of the people and founded a●d co●fi●med be Customes and Lawes of each Country a●d th●●efo●e they o●l●ged their King to conforme their Government unto the Law●s established so Dioderus Si●ulus testifies of the Egyptians that their Kings c were bound to conforme the Regiment of their Kingdomes and their lives and families to the Lawes establ●shed and were obnoxious to sensures in case of defaults and Zeneph●● testifies the same of the Lacedemontans and d Licurgu● being little lesse then an Oracle in his time took an Oath every moneth to govern the Kingdome according to the Lawes ●nacted and M. T. Cicero informes us of the famous Romane State that the people gave Lawes to all their Magistrates by which they should order their Government thus much may be deduced from these words Imperium in Magistratibus Authoritatem in S●●at● e potestatent in plebe Majestatem in populo command was in the Magistrates Authority in the Senate power in the men●all people and majesty in the people in generall so Livy hath these words frequently 〈◊〉 decre●●● populus jussit the Senate hath decreed the people commanded and whoever hath leisure to read Purc●● pilgrimage and voyages Peter Martyrs Jud. Hist. Boemus de m●ribus Gentium Strabo and such other Histories shall find that the Athenians Persians Corinthians Medes and Germanes Swe●es D●nes c. prescribed to all their Governours Lawes and Rules whereb● to govern and reserved to themselves Soveraigne power to prescribe farther Lawes and limits to their Kings and M●gistrates and to call them to a publike accompt for their off●●ces and misgovernment and thus A●drew Horne f an ancient Lawyer informes us that when the forty Saxon Princes which for some time r●led this Nation chose to themselves a King they made him sweare at his ●n●●garation that he should govern the people by rules of Law without regard to the person of any and that he should be obedient to suffer right as well as any of the people and at the Coronation of Kings unto this day there is an Oath appointed wherein they s●eare g to keep the Lawes and Customes then established and to grant and defend all such rightfull Lawes as the Commons of the Realme shall choose And without controversie this concurrent practise of the Nations in obliging all Magistrates to govern by Lawes only was founded upon impreg●●ble reason and equity Every Nation is but a rude ind●gested Chaos a deformed lump untill Lawes or rules of Government be established Lawes are the vi● plistica or formatrix that formes the principall vitalls the heart the bra●ne the liver of the Common-wealth as it is such the Law●s of every people puts the difference as to them between things judicial● just and unju●● good and evill the Lawes are the only measure and boundary of every mans right interest and property without such rules of Government every mans right to any thing is equall and every mans t●tle to Magistracy or rule r●ns parallel with other therefore when the Lawes of a people are destroyed and Magistrates exercise dominion over them as being loose and absolved from all Lawes or Rules of Government and obnoxious to no censures then all things returne to confusion and every mans depraved will become● a law to himselfe and as many as he can subdue by his sword then iust envy malice covetousnesse and ambition supply the place of Law and most men must be subject to their Dictates and decisions th●● faction and private interest exalt and abase destroy and save alive at their pleasures then distractions commotions and bloody massacres overspead the face of a people and no security remaines to the estates liberties or lives of the people more then to the wild beasts of the Forrest Now what pu●blind eye cannot discerne Englands fa●e in this Glasse are not our Lawes subverted and turned into arbitrary Decrees and resolutions every day rising and every day withering like M●shromes and are we not governed by those who conceive themselves absolved from all Lawes or Rules of Government ●●a are we not governed Jure vago inc●●●● by a leaden 〈◊〉 Rule to which we cannot square our obedience but in●st writ untill the Grandees that guide the Legislative power measure our actions for us or apply the Rule m●● we not complaine with the French-men in Lewis the eleventh tim●s that will is law and law is will what is now more common then a transgression without a Law an accusation without an Accuser and imprisonment without a cause rendered a sentence without a legall Judge and ● condemnation without a legall hearing or triall who can promise himse●fe the least safety either in his life o●● liberty unles●e h●s mind and conscience be ta●quam 〈…〉 as a pure table wherein the prevailing faction may freely engrave the determinations of their wills I shall not for present endanger the Readers ey●s with an uncessant e●●iux of brinish tea●●s by relating many of the do●efull tragedies really acted upon our Libert●s I shall ooe●● give you an impartiall narrative of Sir Iohn Maynards Ca●e and of the wounds which our liberties
any possible ab●se of their power If their pl●a●u●e be the supreame rule whereby they shall judge of the peoples actions and ce●su●e them to the losse of their Liberties and dearest injoyments then there is no rule whereby to measure the recti●●de or obliquity ●ustice or injustice of their Government and by cons●q●ence they are under an imp●ssibility to render an accompt of their wayes this the Parliament ab●●orred in the King as appeares by their last Declaration shewing the reason of their Votes not to make nor receive any addresses to or from the King p. 12. they say the King hath layd a fit foundation for all Tyranny by that most distructive maxime viz. that he o●es an acc●mpt of his 〈◊〉 to none but to God alone but whether this principle be esteemed by the present Grande●s that over-awe the Parliament too sweet a morsell for any pallate except their own I will not determine 4. This impriso●ing during pleasure expeseth the Liberties Estates if not the lives and all the people to perpetuall uncertain●y who can perfect● soresee what construction the ruling Gen●lemen shal please to put upon the most innoc●nt actions and inten●i●ns of any which are not blessed with the●r graci●us aspect ●ow plausibly and with what facility may they at least question their actions and upon what faire pretences may they commit them to p●●s●●ns and if this shall remaine during their pleasures they solely depend upon the uncertain inconstent wills of a ●ew G●andees for the enjoyment of their Liberties Trades and 〈◊〉 o● howev●r upon the least pretence of a transgression any man sha●l be imprisoned during pleasure by the heads of the present faction or by their i●fl●●●ce upon the Parliament and th●n his Liberty is lost for ever and it may be his Family there by utterly ruined being under an impossibility of regai●ing his freedom unles●e he can please and satisfi● either by c●eeping and cringing or otherwise the ambitious ●umours or corrupt wills of those sta●ists I might here also oportu●ely discover the abhorancy of perpetuall imprisenment or during the pleasure of any man manifested in the Statute and Common Law and likewise what exquisite care the Law hath taken for the Liberties of mens persons by the Law of the Land be●ore the ●●●que●t as app●ares by the Lawes of Ethel●ed a man was ba●leable for any offerce untill he was co●victed and Sir ●●ward C●●ke saith that by t●e Common Law a man accused or indicted of Treason or of any F●lony whatsoever was bayleable upon 〈◊〉 surety for the Goale was only his pledge that could ●i●d none and though some sta●u●es have since ab●●dged that liberty yet the writs deodio atia still in force to helps such to bayle as are accused of Fe●●ny and the care taken that every man may have an Habeas Corpus by imposing an Oath upon the Judges and providing remedies in case any should refuse to obey the writ of Habeas Corpus those things I say manifest the tendernesse of the Law to every mans liberty and it 's a obhorency of long tedious or perpatuall imprisonment at pleasure and the Law never intended neither doth allow imprisonment to be a punishment but only a safe Custody * untill the ordirary appointed times of Tryall But I find it objected by some that the Parliament is above Lawes and statutes yea Magna Charta it selfe and cannot be confined within their bounds in their imprisoning supposed off●●ders and there●ore may imprison anyn an during pleasure this I confeste is the opinion of the faithful valiant sufferour Mr. Prin in his Soveraign power of Parliaments 4. part p. 27. Answ. I concelve this to be a grosse mistake confounding the legislative power with the power judiciall and executive of the Lawes its unquestio●able that the law-giving power of the Parliament is suptean●e to all the Statutes enacted by ●ormer Parliament● ●h●y may at pleasure alter and rep●ale them either totally or in part●●ct this law-giving power is not absolutely supreame to Magna Charta who'ly at their pleasure this great Charter hath 〈◊〉 consideration either as it is in part a Statut● Law and so it is subject to the pleasure of the Parliament to be altered repealed or confi●med or as it is a Declar●●ion of ●●e common Law or of comm●n reason and equity and thus t●s not pr●st●●●e at the secte of the Parliaments will In the trust comm●t●ed by the people to the Parliament to be legis●a●or it is ●aturally and necessarily implyed and supposed that common reason ●nd equity should be a law to their a●d thence it is received as ●n und●●b●e maxim that comm●● 〈◊〉 may annull an Act o● P●rli●ment but whilst Sta●u●e ●●ws are not ●epealed by v●r●ue of the legislitive power I supp●●● they are as obligatory t● the Parliament either joy●●ly or i●parately considered as to the meanest C●●m●n●r in England And for their Judiciall power in declari●g the Law in particular cases before them I conceive they are not even in that purely unlimitted or absolut● they a●e li●i●t●d as to the Laws wherein that Judicia●l power is to b● ex●●c●sed the pe●all laws being in their own nature declara●ive 〈◊〉 not the object of that powe● ●uch laws ought to be taken in the letter o●ely not by consequence or const●uction otherwise they should ●●pl●y a contradiction to themselves for b●ing who●ly declarative as they are p●nall they should yet not be declarative and its ●n undoubted maxime that D●us non potest c●ntradictoria God himself cannot do things contradict●●y and I hope Parliaments are more mode●t then to challenge a power supreame to his 2. The Parliament is limited in their Judiciall power in declaring the Law where Laws may be taken by way of consequence eq●ity or construction therein common reason is also a Law to these Judges of the Law And for the Parliaments power in executing the Law which is their power of imprisoning and censuring ●ffendors either they are to●ally subjected to the Law and ob●●eged to proceed according to Law or else they cannot judge men as transgressors It s only then that men can be Ju●ged transgress●r● when by a measuring their actions by the Laws they are found to have walked contrary to or swerved from the Law But let it be observ●d if the Parliament cla●ms a power to imprison as being ●●●r●sted to be Executors of the Law then it implyes a contradiction to say that power of theirs is above the Law or that they are not oblieged to proceed in every pun●ilio according to the declared Law for if there be the least abberration from the Law in their censuring or imprisoning any man they do not put the the Law in Execution but execute their lawlesse wills B●t I would inquire whether the Parliaments imprisoning ●y m●● be an act of their Jurisdiction ●ver hi● If so the●●● the name of that power be weighed 〈◊〉 a Declaration of the Law N●w ●● implies another contradiction
To the Gentleman Vsher of this house or his Deputy c. Ioh. Brown Cleric Parl. But it seems this Gentleman was t●●ght by his sufferings to understand his ●wn a●d his Count●ies freed●me 〈…〉 ●hen ●t the fi●st encounter with his e●●mies he was satisfied t●at the Lords ●ad no 〈…〉 over the Commone●s of E●gla●● and therefore reputed himself ●bliged to give them a modest humble caution not to subvert the fundamentall lawes of the Kingdom by ●s●●mi●g a power of judicature over him being a Commo●●● and for this purpose upon ●●b the 4th ●e d●●patched 〈◊〉 ensui●● Letters To the Right Honourable my singular good Lord EDWARD Earl of Manchester Speaker of the House of Peeres My Lord I Received an Order in the name of this Honourable House whereby I am appointed to appear before you to receive a charge of Articles of High Treason and other crimes c. U●on which accompt I have made bold to write these e●c●os●d lines humbly desiring that they may be communicated to your House Sir I am your Lordships most humble servant JOHN MAYNARD From the Tower of London this 4. Feb. 1647. My Lords I Am for Monarchy and upon all occasions I have pleaded for the preservation of the interest of this Honourable House But my Lords I being now summoned to app●ar ●ef●●e your Lordships for no lesse as I conceive then my l●fe upon an impeachment of High Treason I am being a 〈◊〉 necessi●ated to challenge the benefit of Mag●a c●a●t● a●d the 〈◊〉 of Right which is to be tried by a 〈◊〉 of my 〈…〉 of my own condition by an Indictm●nt before the Iudges in the ●rd●nary Courts of Iustice in Westminster Hall who by the Law of this Kingdome are appointed to be the Administrators thereof a●d by the expresse Lawes of the Kingdome I am not to be proceeded against for any crime whatsoever that ca● be laid 〈◊〉 my charge any other way then by the declared and expressed rules of the known and est●blished Lawes of the land as is 〈◊〉 ●●●ly evident by the expresse words of the Petition of Right which being an Englishman I chal●enge as my Birth-right and In●eritance and I rather presume to make this addresse unto this 〈…〉 H●●se because I f●●de upon ●●cord that in the case of Sir Sim●n de Be●isf●rd this Honourable House have engaged never ●o judge a ●ommoner aga●n because it s against the Law of the Land ●e not being their 〈…〉 This I ●umb●y ●eave to the consideration of this Honourable House and take leave to rest Your Lordships most humble Servant JOHN MAYNARD Toke● February 4. 1647. But those Lords whereof the House is now 〈◊〉 not 〈…〉 deny ●●edience to the commands of the sword men and their c●mplices pe●sisted in their Order to the ●●cutenant of the Tower and Sir ●ohn Maynard was on Feb 15 brought to their ●atte but a command was given that the door of their H●●se should be shut and that no man should be 〈◊〉 accesse to hear and though Sir Iohn Maynards Lady children and friends pressed hard at the door yet Mr. F●●e Gent●eman 〈◊〉 of the black rod repelled them by violence hereupon Sir Iohn Maynard●u●bly moved that according to the practice of a ● Cou●ts of Justice the d●●rs might be open and all might have free accesse to hear the proceedings But the speaker delivered the sense of the House that ●● company m●st come in before sir Iohn Maynard● charge was read Thereupon Sir Iohn Maynard with reverence and respe●t bes●ught their Lordships that in respect to their own Honour the 〈◊〉 of the House and that which was of more value then both 〈◊〉 the preservation of the Law their Lordships would permit all whatsoever to hear It s a cause said he of ●igh 〈◊〉 ●t for it involves the Liberty of all the Free-born people of England And I beleeve your Lorships cannot be ignorant what Bookes 〈◊〉 speeches are dayly uttered against you as invaders of the peoples 〈◊〉 rights and freedomes you are traduced to be a 〈◊〉 a Councel-table ●● worse even a spanish inquisition and that all things are carried by faction al● the Orders and commo● rules of Just●ce bei●g dayly broken ●ea it s said you exercised a higher● t● 〈◊〉 and more arbit●●ry power at present then was practis●d by any others in the worst of 〈◊〉 but saith hee I have 〈…〉 severall occ●sion● to vindicate the Hon●●ur of this house 〈…〉 Lordships will pr●f●●●t your selves a court of 〈…〉 yet keep your doores shut whereas I hav● q●●shed such reports your Lordships will ●●ake them truth and ●●●dent to a● the people But as the Lords had no ●u●idiction over him so they wou●d 〈…〉 it to all men they would excercise no Iurisdiction t●●y would not declare the Law concerning him but their wil● so they kept dores shut it may be they esteem themselves supreame to the stat of Ma●●bridge 52 H. 3. ●● 1. which expresly saith it s provided that all persons of all degrees should receive Justice in the Kings Courts i. ● the c●uses of all persons shall be heard ordered and determined openly in the Kings Court before the Judges ●here no man ought to be excluded or denyed free accesse the reason of this is imp●e nable First all proceedings are only particular declarations of the Law it s intended that the Law should be understood by every man and therefore it was ordained that Magna Chatta should be publikely read 4. times or twice at the least in every cathed●●ll c. And of ould the Kings writ issued out at the end of every Parliament to the Sh●e●ffe of every Countie commanding him to proclaim and publish all the Acts made by the 〈◊〉 in all places throughout his Bayliwick and to this purpose records are kept of the proceedings of the Courts of Iustice that they might be visible to al men for Laws not promulgated or declared are no Lawes Therefore the deniall of free accesse of people to any Court of Justice subverts the very being of the Lawes as much as is possible to such a Court 2. The just and prime rationall ●nd of proceedings against offenders is subverted when theire proceedings are not as publike open as possib●● he punishment which the law ordain to be executed upon offenders is not the end of the penall Lawes but for the peoples profit ● that they by the cogniz●●ce of the matter and manner of their offences might more clearly distinguish between good and ev●l● and know how to order their wayes without occasion of off●●ce to t●e sta●e a●● als● that the j●st 〈…〉 their transgressi●ns may 〈…〉 inclinatio●s of ot●●ers to the 〈…〉 that of Sene●a Ad vindictu●● 〈…〉 and that 〈…〉 ren●●●●i en●m 〈…〉 W●●ug●t not to co●● to t●e 〈…〉 as to matter ●f d●●●g●t but 〈…〉 man pu●●sh 〈◊〉 beca●se the Law is tran●g●●●●●d 〈…〉 not be transgressed d●●b●les it is ●epugnan● to the na●●●e of man to b● satisfied in
have a writ of errou● directed to the chiefe Iustices of the Kings-b●nch for removing the errour i●to the present Parliament and he pr●duceth 〈◊〉 president in these words The Bishop of N●rwich ●●●weth that an err●neous judgement was given against him ●o the common plac● f●r the Arc●d●co●ry of Norwich belonging to his presentation an● prayed that ●hose errours might be heard and redres●ed ●n answer was ma●e that by he law errours in the common place are ●o be corr●c●ed in ●●e Kings bench and of the Kings bench in the Parliament and ●o otherwise now I desire any Lawyer to informe me whe●●er acc●rd●ng to the custom of England the hou●e o● Lords be ca●●ed the Par● of E●gl or what is done by them can be ●a●d to be ●one by Par●●am ●ut you may observe how learned Sir Edward Coo●e contra●●●t● him●elfe when once he forsakes the rule of the Law and now I suppose I may co●clude there is no wri●ten Law auth●rizing the Lords to take c●gnizance of any case of Commoners whatsoever and if S●r E● ●ooke say true 1. part lust see 19● p. 125 that in case a ●●ry commeth out of a wr●ng place or re●urned by a wrong off●cer and give a verdict Iudgement ●ught not to be given upon ●uch a verdict then much better I might conclude ●hat all the judgment of the Lords passed upon Commoners are ●u●l in themselves Objection But it will be yet objected that by Custome the Lords have a juri●diction over Commoners and that both in cases of erro●●ous judgements and also in criminal cases Answ. 1. There is no legall custome for their exerc●se of that juri●dict●on there are two things essential to a valid custome 1. 〈◊〉 2 Time yet that time must be such whereof there is no r●●m●●y of man ●as C●ok saith 1. part d●●stit p. 144. and the usage must be peaceable end without interruption but both these are wanting for i●s within the memory of man that the Houses were divided and ●he● the Lords had no such juri●diction The Lords being a House by themselves was but since King Richard the first but more pr●o● of this in some other trea●ise and i●s evident by the Precedent of Sir 〈◊〉 de Ber●sfords Case That the Lords have beene interrupted in their prac●●●e of judging Commoners Answ. 2. Suppose there were custome yet there is not the same reason that 〈◊〉 should inves● any with a power of jud●cature as that it should be a Title to any liberty pertaining to a Town or an inheritance c. if long usurpations of power should make the exercise thereof legal●● the very ●ounda●i●n of just Government were subve●●ed Answ. 3. But ●ur●her no custome that is against an act of Parliament is valid in Law and it s proved that the Lords exercise of jurisdiction over Commoners is against many Acts of Parliament there may be fifty found con●●●ming each other Answ. 4. Customes are only valid when rea●onable Co●k 1. part ●nstit p. 62 that any customes how long soever it ●ath continued if it be against reaso● it s of no ●orc● in saw and pag 56. ●e saith nothing that is contrary to reason is consonant to law that o●Vlpia●● l. 29. 〈◊〉 unquestionab●● quod ab 〈…〉 est c. Course of time amends not that which was corrupt in ●●s originall Now that the Lords jurisdiction o●er Commoners ●s di●con●●nant to equity and reason I suppo●e Sir Iohn Maynards Protest that followes will evince to minde ●ree from prejudice yet this I ●hall here add That the ●aw of nature abhors the I 〈◊〉 claime to a juri●d●ction over all the people of the Land as unreasonable 1. ●●s repugnant to the law of nature that the judgment of the law and of the guilt and innocency of persons should be comm●tted to any number of men withou● a di●cretion o● 〈◊〉 or any judgment passed upon them whether they b● capa●●e or 〈◊〉 of the place of judgment and this is the case o● the 〈…〉 most of them at least ●it in that House becau●e 〈◊〉 were 〈◊〉 ●f Patents wh●c●●ad P●ttents for B●●onies Ea●ldom● c. from the 〈◊〉 and no pr●●●tion ever made of their sutablenesse or unsut●blen●sse and the laws of the land seeme also to 〈◊〉 this Sir Edward 〈◊〉 1 part I●st ● pag. ● saith If an Office either of the grant of the King or Subject which concerns the administ●●tion proceeding or execution o● 〈◊〉 and b● gran●ed unto a man that is unexp●●● and ha●h 〈◊〉 of science to execu●e the same the grant is m●erly void in law Is it not indeed irrationall that any person should be consti●ut●d a Ju●ge over the people blind sole before 〈◊〉 poss●●le to know whether the●e will be honesty 〈◊〉 wisdome in him 〈◊〉 for judgment ● I●s repugnant to the law of nature that any number of men and thei● Po●●erities should be constant Judges of the guilt or innocency of wh●m they please or of a●l the people ●n a 〈◊〉 if this wer● gr●nted can it be avoyded but they mu●t be frequently ●u●ge● and Parties and this is directly included in the Lords claime to a juri●dicti●● over Commoners and expetience gives cleere test●mony to this in Sir ●ohn Ma●●ard● present case for the major part at●east of the present Hou●e of Lords subscri●ed an Engagement at 〈◊〉 heath to joyne with the Army against the City in that unhappy diff●●●nce and yet they would be the Judges of Sir ●ohn who they ●ay i● guilty of treason ringaging against them and the Army at that time 3. I c●u●d say the written Lawes of God ab●●rs the manner of the Lords claime to a ●uri●d●ction over Common●●● they will not submit the 〈◊〉 to be ●●●yed ●y Commoners and ●o do not to others a● they would the●●hould do to them Therefore I may conclude that the common law of ●●gland the ●nwritten and written law of God declares this custome ●●ll in Law Answ. But ●●rch●r Custome in this case cons●sts onely of many Acts of Judicature which the Lords have exercised over Commo●ers and àfacto ad jus non valet argumentum because they have usurpod a power therefore they may continue their usurpation is on good Argument Yet it may be further said that all their judgements passed upon Commo●ors before this present Parliament were ●ulled by the Acts of Parliment made in 17. Car. for the abolishing the Sta●●e-Chamber and Counsell Table wherein Magna Charta and the Stat. of 42. Ed. 3. and the Petition of Right 3. C●r and other Statutes were confirmed which declare all judgements that are passed co●ta●y to the Te●●re of Magna Charta to be holden for ●ought and by consequence the ●ords are de●oyd of all pres●de●ts also for exercising a ●urisd●ction over Commo●ers unlesse they produce those made si●ce the War wherein the voice of the Law could not be heard for the noise of the Drum and sou●d of the T●●mpet Now from all these considerat●ons I shall presume to collect this
My Lord Your Honors devoted servant John Maynard From the Tower of London 14. Febr. 1647. The humble Plea and Protest of Sir John Maynard c. sent unto the House of Lords Feb. 14. 1647. My Lords I Am now aspersed with Treason but I should really contract the guilt of Treason against my Countries Liberty and ●ender my Name infamous amongst the Commons of England to posterity if I should regard your articles of impeachment a● an accusation to which I am bound to answer If I were justly to bee suspected for Treason there could be no Legall just proceedings to bring me to my answer but by ●ndictment of good and Lawfull men where such supposed treasonable deeds were a d●ne And although I were Legally ind●cted the Case comes not under your Lordships Cog●●●ance but seeing I am a Commoner of England by the establ●●●●d Lawes of the Land my t●●all ought to be by a Iudge or Iustice and a ●ury of Commo●er● and no b otherwise and as the 〈◊〉 of those Lawes was that all Trials might be equall and unpart●●● so they are fo●nded upon these impregnable grounds of Reason and Equity 〈◊〉 the Iury are to be of the Neighbourhood where any crime is 〈◊〉 and some ought to be of the same Hundred for the 〈…〉 that such may have either some cognizance of the fact 〈…〉 some Circ●mstances thereof or of the party accused wh●●● condition and manner of conversation is much to be regarded for the discovering his intention in any fact supposed to be 〈◊〉 or ●●lony c. and the Rule of the Law is c A●●us non 〈…〉 rea 2. The 〈◊〉 that passes upon any Commoner one day may themselves bee in a condition to bee tried by him another day as one of their Iury and hereby they are bound to indifferency and impartiality considering it may bee their owne case 3. The party accused may challeng or except against the Iurors other against the d Array if the Sheriffe or Bayliffe impanelling the Iury bee not wholly desingaged and indifferent as to the Cause and the party prosecuting or against the Polls and in case of Treason hee may challenge 35 peremptorily upon his dislike without rendring the least cause and as many more as hee can render any reason for his just challenge as in case he can challenge any for a Baron or Lord of Parliament or for defect in estate or other abilities or for disaffection or partiality or for any infamous Crime and hereby the Judges of the fact for the party accused may certainly be indifferent equall and impartiall 4. The matter of fact is onely intrusted to the Jury and the matter of Law to the Judge for the preverting all errors confederacies or partiality 5. The Iudge is sworne to doe justice to all according to Law without respect of persons and the Iury are sworne to find according to then evidence Now from every of these the injustice illegality of your Lordships claime to be both Iury and Iudges in the Tryall of me or any Commoner is clearly demonstrable Your Lordships cannot be of the Neighbourhood where the crimes of all Commoners are committed and cannot be presumed to have any cognizance of the Facts or parties offending neither do you allow your selves to be tried by Commoners so as to be bound to indifferencie and impartiality from the knowledge that the Commoners whom you would try might possibly be of a Jury for your triall in a short time neither can my selfe or any other Commoner whom you would try challenge in the Case of Treason thirty five of your House for your whole House amounts very seldome to that number neither will you allow me to challenge any one of your Lordships though I should alledge disaffection partiality or that he is an ingaged party or prosecutor secretly or openly Neither at present is there any Lord high Steward or Lord high Constable amongst 〈…〉 to be Judge in matter of Law while others should be Judges in matter of Fact neither are your Lordships sworne to ●udge according to Law or in matter of Fact according to Evidence Having therefore such infallible euidence both from the Statute and Common-Law that I ought to be brought to answer to any supposed crime onely by indictment or presentment of my equals good and lawfull men of the neighbourhood where the fact is done and that my triall ought to be by my equalls and a Iudge of the Law in open Court and that the cogni●ance of any crime whereof I am suspected pe●taines not to your Lordships I am resolved never to betray my owne and all the Commoners Liberties nor to cons●●t to the subverting the fundamentall Lawes of the Kingdome by submitting to a t●●all by your House or to answer to your Articles of I●p●a●hment but I do● hereby protest against the forme of ●●ur accusation as illegall and your Lordships l●●sdiction over my selfe or any Commoner of England in criminall cases as b●ing destructive to our fundamentall rights and L●berti●s and I do● hereby claim the benefit of Magna Charta the Petition of Right and all other established Lawes of the Land which this honourable House the House of Commons and the Army under his Excellency Sir Thomas Pairsax's command in all your and their Declarations Remonstrances Protestations Oaths and Covenants have promised vowed and declared you will maintaine and pres●●● John Maynard Notwithstanding this Protest the Lords issued ●orth an Order to the Lievtenant of the Tower to bring Sir Iohn to their Barre upon ●●br ●9 and upon the receipt of a ●●p●e thereof from the Lievtenant Sir 〈◊〉 sent this ●ns●ing Salvo to his Liberty in p●rsuance of his Pr●test against the Lords Jurisdiction over him To his honoured friend C●l Ti●hburne Lievtenant of the Tower Sir I Received a Paper from you seeming to authorize you to carry 〈…〉 the L●rds House to answer to a Charge And 〈…〉 to inform you hereby that my p●r●on ought not 〈…〉 or d●s●●●bed at the pleasure of any man 〈…〉 obedience to the commands of any which are 〈…〉 ther●fore in ●ase you intend to dist●rb me on 〈…〉 to see a ●●●all Warrant from some person or 〈…〉 over me ●n case of a 〈◊〉 or 〈…〉 And I m●st 〈…〉 you that the Lords have no legall power to summon me to answer to any crime whereof I am ●ccused or suspected and therefore you must expect to answer 〈◊〉 whatsoever injury you offer to my person And know hereby that I shall not volunta●ily go from hence to Westminster by vertue of the Paper received but shall only quietly suffer you to carry me whither you piease if you shall send force which I cannot resist Your Friend and Servant John Maynard From my chamber in the Tower of London Feb. 1● 1647. But the Lords persisted in their Order to the Lievtenant although this was sent to them and debated in their House and upon Febr. 19. Sir Iohn was brought to their Barre and the Speaker pressed
him urgently to kneel but be s●ewing them as much civill respect as could be desi●●d refused resolvedly to kneel then the doo●● be●ng shut the Speaker asked him whether he had brought his Answer he answered he was accused of treason and could obtaine no Counsell and therefore desired time that Counsell might be assigned him hereupon he was commanded to withdraw but before withdrawing he ●old the Speaker he hoped he should not be taken pr●co●sesse for ●ather then so he would p●t in his Answer presently After withdrawing he was presently called in ●nd fourteen dai●● time appointed and M. He●●e M. Ha●es M. Walker and M. King appointed for his Counsell Now I cannot 〈◊〉 observe one desperate mischief by this pretended Court keeping their 〈…〉 they have caused an infamous report to be ●●●●ted abr●●d that Sir 〈◊〉 Maynard had now d●serted his Protest against their 〈…〉 may be they will the n●xt time report th●t he hath confessed h●mself guilty of Treason ●t's time to se●k for s●●ndalls ●o s●pport their 〈◊〉 int●rest But I hope no 〈◊〉 man but understands the reason of S●r Iohns taking time and Counsell ●o answer every one by Law must plead to those before whom he 〈◊〉 accused or els he is to be taken pro 〈◊〉 and j●dged accordingly but every one accused may plead to the Jurisdiction of the Co●rt or to the matter of fact and a Plea against the Jurisdiction of the 〈◊〉 put in formally prevents the former mischief and therefore Sir J●●n must put in a sonmall answer though it be nothing b●t the substance of his Pr●test and I bel●●ve the Lords shall know that the Gentleman scornes to be a Po●●tion and betray his Count●●ys Freedom● into their hands Now Oye Commons of England behold the foot of your ●iberties in the grave this Gentleman endeavours to redeem them if you assist him not I beseech you consider 1 How you may be tried for your lives in the Lords chambers with doores shut if they please that there may be no witnesse of their arbitrarinesse and injustice 2 You shall have the Lords depraved Wills not the Lawes the rule whereby to measure your wayes and punishments 3 You shall be accused without the least legality at their pleasure yea you shall be judged for a new-found crime and destroyed in your estates without bounds or limits yea those nerves and ligaments of the Kingdome the Lawes shall be cut in sunder and what then shall ●ny man call his owne Now were it not that I abhorre animosities and emulations I would compare Sir Iohn with L. G. Cromwell the causer of his i●peachment I onely wish that any admirer of that Gentleman would discover wherein he ever maintained so faithfully so many Liberties of England as he hath caused to be trampled in the mire in this Case of Sir Iohn Maynards only to fulfill his malicious will upon him yea wherein hath he defended so many Liberties notwithstanding his large ingagements at Newmarket as the Reader may see defended and vindicated by Sir Iohn Maynard and yet Sir Iohn Maynard must be reputed a Traytor to his Cou●trey and he the grand Saviour I only desire that all the Commons and all those well-meaning Souldiers that were made L. G. Cromwells instruments to mannage his designe in accusing this Gentleman I say I only wish that they would judge by the fruits and adhere to or forsake every man according as they shall finde him faithfull or trecherous to the Kingdomes good and welfare FINIS a 〈◊〉 Pol●● l. 3. c. 10. p. 10● 2●● b See 〈◊〉 Hist. 6. p. ●2● c See Hist. ●●bl l. ● Sect. 20. p. 61 62 63. d zer d● Lacedem Repub. p. 690. e 〈…〉 pro Rabino f See Me●rour of Justice ● 21 p. ● g See Parliament Dec. of Sep 2. ●● 42. 1 part bo●k Dec. p. 712. 713. 3. Liberty in●rieged 4. Liberty in●rierged 5. Liberty infrienged * This was declared in the Pa●l●ament● first Remōstra●ce of the state of the Kingdom to be the grand designe of 〈…〉 to absolve the Government ●to●● all restrai●t●●●aw●s and persons and estates * So Cookes Exp● of Magna Charta 2. part Iust. p. 55. * 〈…〉 2. 〈…〉 55 〈…〉 * 〈…〉 2. 〈…〉 p. 〈…〉 * See Corke 1. part instit. Li. 3. ca. 7. sect. 438. fo. 260. * Se● the Re● of Sep. 2. 1 642. 1 pa●t Tooke D●●la p. 693. 6. 〈◊〉 in●ringed 〈…〉 Liberty of England in fr●nged viz the Lords claiming a jurisdiction over Comme●ers and v●ndicated by Sir Joh. Maynard See the 〈◊〉 ma●e 17. Ca●oli printed togethe● 〈…〉 2. Premise To ye●d m●●y in la● time whic● cord matte be fou See Coo● part p. 1 ● Liberty of England ●●fringed 〈◊〉 t● accuse a Freeman b● way of Articles and t●e L●b. maintained by Si●● M. 9 Liberty a England infringed by ning men without an offence an by no rule ● the●● owner ●ooks Expos. 2● 〈◊〉 of a Char●● 〈◊〉 45. 4● 〈◊〉 S●at●● 〈…〉 ● 37. Ed 3. ● 3. 3. 〈…〉 Jury●● be 〈◊〉 to Magna art● ●●ber ●egalis ho●● 〈…〉 He 〈…〉 to the 〈◊〉 where 〈…〉 He 〈…〉 He 〈…〉