persons only but also of the persons of men not plevisable and indicted insomuch that they ought not to be oppressed by their Judges or Goalers upon pain of Felony This caused our Author to complain in the time of King Edward the first that those good Lawes were 〈◊〉 in these words It is an abuse that Goalers are suffered to spoyle and oppresse their prisoners or to take ought from them save their Armour and Weapons Nu. 52. It is an abusion that prisoners are put in Irons or to other pain before they are attainted of Felony Nu. 5. It is an abusion to imprison any other man then he that is indicted or appealed of Felony in case he want not pledges or mainpernours pag. 289 And that this was the Law is very clear for that King Alfred did cause Fourty four Justices in one year to be hanged for breach of these Lawes And more particularly the Suitors of Cirencester for that they did detain a man so long in prison that offered to acquit himselfe that he died there as you may find pag. 301. whereby you may clearly perceive that the Liberties of the Subjects of England as touching their persons are not grounded meerly upon Magna Charta but are of a more ancient foundation even in the originall Lawes of the Nation the Statute of Magna Charta being onely a Declaration or Confirmation of those former Lawes which by Divine right and Nature we inherit As Sir Edward Cook in his Proeme to the second part of his Institutes observes These Lawes were gathered and observed amongst others in an intire volume by King EDWARD the Confessor And though that William the Conquerour came in by the Sword yet at the petition of the Lords and Commons of this Realme he confirmed these Lawes unto us for the sake of King Edward that devised unto him the Kingdome as witnesse Matth. Paris and William of Malmesbury which were afterwards confirmed by King Henry the first and enlarged by Henry the second in his Constitutions made at Clarendon and after much blood spent between King John and his Barons concerning them re-established at Running Mead neere Stanes and lastly brought to a full growth and made publique by King Henry the third in the ninth yeare of his reigne though he sought afterwards to avoid both that of his father King John upon pretence of dures of imprisonment and his own by nonage Yet neverthelesse God so ordaining in the 20. year of his reigne he did confirm and compleat the said Charter for a perpetual establishment of liberty to all free-born Englishmen and their heirs for ever ordaining Quod contravenientes per Dominuns Regem cum convicti fuerint graviter puniantur Which is that those that went against these lawes when they were convicted should bee grievously punished by our Lord the King And in the 52. yeare of his reign by the Stat. of Marleb c. 5. this Charter was confirmed by Act of Parliament and hath since been not lesse then 33. times confirmed and established and commanded to be put in execution by severall Parliaments since held This Charter of our Liberties or Freemans Birth-right that cost so much blood of our Ancestors and was so long in the Forge before it could be fashioned being no lesse then 200. yeares under persecution before it was brought to perfection is that brazen wall and impregnable Bulwark that defends the Common liberty of England from all illegall destructive Arbitrary Power whatsoever be it either by Prince or State endeavoured And because it imports us so much we shall recite the words of this Charter as to our present purpose of the vindication of our liberties both of persons estates And first ch 14. it runs thus A Freeman shall not be amerced for a small fault but after the manner of the fault and for a great fault after the greatnesse thereof saving to him his contentment and a Merchant saving to him likewise his Merehandise And none of the said amercements shall be assessed but by oath of honest and lawful men of the vicinage This part of the charter was made in affirmance of the Common Law as appeares by Glanvil l. 9. c. 11. where he useth these words Est autem miserico dia domini Regis qua quio per juramentum legalium hominum de vicineto eatenus amerciandus est ne quis de suo honorabili contenemento amittet In English thus The amercements or mercy of the King ought to be such whereby a man is to be amerced by the oath of lawfull men of the neighbourhood or County in such manner that he may not lose any thing of that countenance or subsistence together with and by reason of his Free-hold For so is the sense of the word taken in the Statute of 1. Edw. 3. cap. 4. and vet n. Br. fol. 11. The Armour and weapons and profession of a Souldier is his countenance And the books of a Scholler So Sir Edward Cook 2. part of Instit pag. 28. Amercements ought to be assessed by the equals of him that is amerced So is the expresse Book of 7. H. 6. fo 12. in Dett Fitz. Herbert Nat. Brev. fol. 73. And in case where a man is amerced he ought not to be imprisoned as appeares 11. H. 4. fol. 55. The intent of which clause of the Great Charter is That no man should be tried but by his Equals as more fully appeares cap. 29. where it is thus enacted No Freeman shall be taken or imprisoned or disseised of his Free-hold or Liberties or free Customes or be out-lawed or exiled or any otherwise destroyed nor we will not passe upon him nor condemne him but by lawfull judgement of his PEERES or by the law of the land In these few words lies conched the liberty of the whole English Nation This word liber Homo or free Man extends to all manner of English people as appears Stamf. Pl. Coron pag. 152. In these words of this Charter before recited there are these 6. particulars First That no man shall be taken or imprisoned but by the law of the land Secondly That no man shall be disseised dispossessed sequestred or put out of his Free-hold that is lands or lively-hood liberties or free Customes but by the Law of the Land Thirdly No man shall bee Out-lawed but by the Law of the Land Fourthly No man shall bee exiled but according to the Law of the Land Fifthly That no man shall be in any sort destroyed unlesse it bee by the law of the land Sixthly No man shall be condemned but by a lawfull judgement of his Peeres or by the law of the land Where first it is to be noted that these words By lawfull judgement of his Peeres or By the law of the land are Synonyma's or words of equall signification and that the law of the land and lawfull judgement of Peeres are the proprium quarto modo or essentiall qualities of this Chapter of our great Charter being communicable omni
long upon this particular it being so plain and cleare in it selfe Onely wee will remember that which that learned Father in the Law Sir Edward Cook 2. part Instit pag 46. saith upon this clause viz. Hereby is intended that Lands Tenements Goods and Chattels she ll not bee seized contrary to this great Charter and the Law of the Land Nor any man shall bee disseised of his Lands or Tenements or dispossessed of his goods or chattels contrary to to the law of the land Wee may safely adde That neither King nor State ought to seise sequester plunder or take away any mans goods chattels trade lawfull calling or office before the party be lawfully indicted or convicted of an offence by due processe of Law tryall of Jury and lawfull Judgement by the law of the land Neither ought any man to be disseised or put out of his Lands Tenements or Freehold by suggestion or petition to the King or his Councell unlesse it be by presentment or indictment of his good and lawful people of the neighbourhood That thisis as clear as the Sun at noon-day Read these three Statutes of 5. E. 3. cap. 9. 25. E. 3. c. 4. 28. E. 3. c. 3. And the books of 43. Ass Pl. 21. These referre to sequestring seising or desseising rather of Lands Tenements and Free-hold of the free subjects of England For the defence of our goods not onely this great Charter but also the Book of 43. E. 3. fo 24. 32. 44. Ass Pl. 14. 26. Ass Pl. 32. 7. H. 4. fol. 47. Cook 1. Reports fol. 171. 8. Reports fol. 125. Case of London Where the case was K. H. 6. granted to the Corporation of Dyers within London power to search c. And if they found any cloath died with Logwood that the cloath should bee forfeit And it was adjudged in Trin. 41. Eliz. in this case That this Charter for seising of such cloath was against the Law of the land and this great Charter because no man ought to have his goods taken away from him before conviction Nay if he were accused or indicted of Felony or Treason yet his goods ought not to bee seised upon or taken away from him before he be attainted or convicted according to the Law of England upon pain to forfeit the double value as appeares by the Statute of 1. R. 3. And although Treason is not mentioned within that Statute but Felony onely yet Sir Edward Cook Instit part 3. fol. 228. saith that Regularly the goods of any Delinquent cannot be taken and seised before the same be forfeited Neither is this a new opinion but the law ever was and still is so as Bracton l. 3. fol. 136. witnesseth in these words Qui pro crimine vel felonia magna sicut pro morte hominis captus fuerit imprisonatus vel sub custodia detentus non debet spoliari bonis suis nec de terris suis disseisiri sed debet inde sustentari donec de crimine sibi imposito se defenderit vel convictus fuerit quia ante convictionem nihil forisfacit Et si quis contra hoc secerit fiat Vic. tale brev Rex Vic. salute Scias quod provisum est in Curia nostra coram nobis quod nullus homo captus pro morte hominis vel alia felonia pro qua debeat imprisonari disseiseatur de terris tenementis vel catallis suis quousque convictus fuerit de felonia de qua indictus est c. In English thus Where any man for a crime or great felony as for murder shall be taken and imprisoned or detained under custody he ought not to be spoyled of his goods nor disseised of his lands but ought to be maintained of the same untill he shall acquit himselfe of the crime charged upon him or shall be convicted thereof because Before conviction he shall forfeit nothing And if any man shall doe contrary to this course let there be made out to the Sheriffe such a Writ following THE KING to the Sheriffe greeting Know thou that it is provided in our Court before us that no man taken for the death of a man or other felony for which he ought to bee imprisoned ought to be disseised of his Lands Tenements or Chattels until he shal be convicted of the Felony whereof hee is indicted c. In which words Qui pro crimine Sir Edw. Cook is of opinion that Treason is included as also Quia ante convictionem And that the Act of Magna Charta c. 29. extends to treason as well as to Felony or other Delinquency The Writ aforementioned you may find in the Register among the Originall Writs By all which Statutes and Book-Cases and a thousand more testimonies to be produced it is more then cleare That neither Sequestration Seisure nor taking or spoiling a man of his lands or goods ought to be till hee bee lawfully indicted and convicted by triall of his equals according to the law of the land But we have done with this particular wee come now to the next which is the third and that is No man ought to bee out-lawed by the Law of the Land This word Outlary signifieth The putting of a man out of the protection of the Law either in Criminall or Civill causes and it is of two kindes Legall and Illegall A legall outlary is when the party is duly indicted or summoned to appear and makes default at the return of the Writ of Summons and then by due processe of Law is pronounced an Outlaw in the County-Court by the Coroners of the County where he doth inhabit Which proceeding is according to the law of the land because it is done by his Equals And if he be duly out-lawed of Treason Murder or Felony it is a conviction in law till he appear plead to the indictment and pray his Writ of error to reverse the outlary which ought to be allowed him upon his appearance Illegall Outlaries in Civil Causes are where men are not duly summoned and a false Returne made by the Sheriffe whereby processe of Law is unduly awarded against him till he be outlawed In both which cases he forfeits his goods and chattels and the profits of his lands till the outlary bee reversed There are other sorts of illegall outlaries in effect which are putting men out of protection of the law which are unlawfull prohibitions and injunctions whereby men are enjoyned and stayed from prosecuting their rights suits or actions in any of his Majesties Courts of Justice Or when men under any pretence of incapacity by delinquency are not permitted to sue or have right denied them by any Judges or Justices these are in effect outlaries For every Outlary carries with it an incapacity to sue for a mans right or for wrong done in any personal or mixt action As Littleton in his chapter of Villenage affirmes and as you may find 2. 3 Ph. Mar. Dier 114. 115. Now it is all one to be put out of
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-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
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
scruple in this particular we finde by the statute of Westm the 1. c. 12. That in case of Felony those that refuse upon their arraignment to put themselves upon the Enquest shall be put to pennance for t dure which is stoned or pressed to death because they refuse as the statute saith to stand to the Law of the Land And yet if the party accused stand mute and will not put himselfe upon the Enquest the Judge ought to examine the evidence and to enquire by the Iury whether he were mute of malice or by the Act of God before he shall give judgment against the Prisoner so tender is the Law of the Land of the life of every man that if an Offendor would wilfully cast away his life by contumacy yet he ought not to be condemned but per legale judicium parium suorum or lawfull verdict of a Jury which is according to the Law of the Land this appeares by Stamf. pl. Cor. p. 150. a b c d. Cookes Instit p. 2. part page 178. and so from this legale judicium parium or lawfull judgment of Peers or Equals we come to declare to the free-born subjects of England what this lex-terrae or Law of the Land is And first we say that this lex terrae or law of the Land is the absolute perfection of reason as Sir Edw. Cook 2. part Instit page 179. saith Secondly it is the law of England and therefore all Commissions made to the Judges of the Land run thus That they in all cases that come before them facturi sunt inde quod adjustitiam pertinet secundum legem consuetudinem Angliae the Judges by their Commissions are to judge and act only that which to iustice belongs according to the law of the land and custome of England as 2 part of Cooks Instit p. 51. and dayly experience tells us Thirdly it consists of the lawfull and reasonable usages and customs received and time-out-of-mind observed and approved by the people of this Kingdome for if a custome or usage be not lawfull it ought not to bind Quod ab initio vitiosum est non potest tractu tempor is convalescere saith Vlpian l. 29. Course of time amends not that which was naught from the first beginning and in Jur. Reg. v. 2. q. 117 art 1. non firmatur tractu tempora quod de jure ab initio non subsistat That which was not grounded upon good right is not made good by continuance of time and they must be reasonable too so is Augustines opinion in his Book de vera Religione cap. 31. mihilex essenon videtur que Justa nonest It seemes saith he to me to be no law at all which is not just It must likewise be received and approved by the people Therefore Ulpian F. de leg 32. Leges nulla alia causa nos tenent quam quod judicio populi receptae sunt the lawes doe therefore bind the Subject because they are received by the judgment of the Subject and Gratian in Dec. distinct 4. Thum demum humane leges habent vim suam cum fuerint non modo institutae sed etiam firmatae approbatione Comunitatis It is then that humane Laws have their strength when they shall not only be devised but by the approbation of the people confirmed Fourthly this law of the land consists of the antient Constitutions and moderne Acts of Parliament made by the Estates of the Realme but of these only such as are agreeable to the Word of God and law of Nature for as Gregory de valentia Ex Tho. q. 93. art 3. q. 94. art 34. well observes Humane law is a righteous Decree agreeing with the Law naturall and eternall and Augustine de libero Arbitrio cap. 36. nihil justum est atque legitimum quod non ab aeterna lege sibi homines derivaverint there is nothing just and lawfull which men have not derived unto themselves from the law eternall And Horn cap. 5. sect 1. saith That torvous usages and unjust decrees not warrantable by Law nor sufferable by holy Scripture are not to be used or obeyed Out of all which premises wee conclude that the Law of the Land is the Law of England the perfection of reason consisting of lawfull and reasonable Customes received and approved by the people and of the old Constitutions and modern Acts of Parliament made by the Estates of the Realme and such only as are agreeable both to the law eternall and naturall and not contrary but warrantable by the Word of God whatsoever laws usages or customes are not thus quallified are not the law of the land nor are to be observed or obeyed by the people as being contrary to their Birth-right and the freedome and liberty which by the law of God the lawes of the Land and this great Charter they ought to enjoy The summe of all is that according to this Charter the statute and lawes afore-mentioned no man ought to be taken or imprisoned or disseized of his free-hold liberties or free-customes or out-lawed or banished or my manner of way destroyed nor condemned but by lawfull tryal of his Peers or Equals or by the law of the Land that is by due processe of Law by presentment or indictment of good and lawful men where such deeds he done in due manner or by Writ originall at the common-Common-law according to the old law of the Land Here we will answer an objection that we heare is made which is that this is an old Law and many lawes have been made against it since it was granted which weaken the strength of this Charter To this we answer That by the Statutes of 28. E. 1. called Articuli super Cartas 25. E. 1. vet Magna Charta fol. 137. and 37. called confirmatio Chartarum It is provided That if any judgment be given against any points of this great Charter or the Charter of the Forrest by any Iustices of the King or other his Ministers it shall be undone and holden for nought and by the statute of 42. E. 3. cap. 1. all Statutes made against Magna Charta are repealed True it is we find that 11. H. 7. c. 3. by the practises of Empson and Dudley there was a statute made in the face of this great Charter whereby many exactions and oppressions were put in practice upon the free subjects of England to their great trouble and vexation but Oh! for the like justice now and if it were not what would become of all our Ship-money Judges monopolizing Pattentee Merchants and arbitrary Committee-men we find withall that they were hanged that put it in execution and in the 1. H. 8. c. 6. That illegal Statute of 11. H. 7. was repealed and made void and the cause specified to be because it was against this Great Charter and the law of the Land but to put all out of doubt These clauses of the Great Charter which we have discoursed upon hitherto are all
able to relieve them wishing them to provide for their own safety as we read Livy Decad. 1. l. 3. Therefore it never turnes to a States advantage to gaine the peoples hatred the way to avoid it is to lay no hands on the Subjects estates How many flourishing States have been ruined by the Avarice Pride Cruelty and non-observance of the lawes by the Governours The people of Athens being sore urged with a War by Darius from Persia in their great distresse chose Critias Theramenes 28. others to be their Governours They were elected first to compile a body of their Law and put in practise such antient Statutes as were fit to be put in practise to this charge was annexed the supream Authority either as a recompence of their labours or because the necessity of time required it These Governours in stead of making or observing the laws fell to spoyle the people of their lives and goods by new lawes and arbitrary proceedings this was hatefull to the people the end was Thrasibulus and 70. others conspired against them and cut them off and restored the people to their former libertie The Governour of the Eleans held a strict hand over their Subjects and oppressed them The Subjects being in despaire called in the Spartans to their reliefe who had no just cause of quarrell but only an old grudge and by their help freed all their Cities from the sharp bondage of their naturall Lords The Estate of Sparta was grown powerfull and opprest the Thebans The Thebans though but a weak State yet desperate of their suffering by the help of the Athenians found means to free themselves of their cruell yoke These examples and divers others we finde of the fall of the free Estates of Greece recorded by Sir Walter Rawleigh in his 3. book of the History of the world The forceable causes of the ruine of the State of Carthage in Africa which once contended with Rome for the Dominion and Soveraignty of the World were Avarice and Cruelty Their Avarice saith Regius was shewed both in exacting from their Subjects besides ordinary Tributes the one half of the profits of the earth and in conferring of Offices not upon Gentlemen and mercifull persons but upon those who could best tyrannize over the people to augment their treasures Their cruelty appeared in putting men to death without mercy or justice contrary to their Lawes Wee read in Guicciardine that Pisa revolted from and maintained 10. years sharp Wars against the State of Florence and would not submit to her yoke by reason of the hard impositions laid upon her by the Florentines but chose rather to put her self under protection of Lewis the 12. of France a forraign and an hard master We know that an imposition of the tenth penny upon the Inhabitants of Holland and the execution of arbitrary government by the Duke of Alva lost the Dominion of the Netherlands to Philip the second King of Spain Wee could tell of the often revolts of Genoa from the Kings of France of Siena Lacquis Modena Regia Vincensa Padua Crimona Millain and other Towns and Provinces of Italy from the States whereon they have depended even from Venice that only free State well governed in the world by reason of the avarice cruelty pride and injustice of their Governours We could tell you how the Duke Valentinois or Caesar Borgia lost his new Conquests in Italy by his pride and cruelty over the vanquisht people We could remember how Alphonso and Ferdinand Kings of Naples lost their dominions and lives by their extream tyranny over the Nobility Gentry and Subjects of their Realm We could tell you how the Syracusians Leontines and Messenians and other States of Sicillie were stripped of their Dominions and fell into the hands of their neighbours the Romanes by their great cruelty to their own Subjects Wee could find particular instances and examples in all Empires Kingdomes and free States that have been since the Creation of the World that the Princes and Governours for their tyrannie and not due observing the Lawes of their Countries have been banished expelled and put to death by their Subjects Ye know well enough that Rehoboam lost 10. Tribes for an harsh answer to a petioning people 1 King 12. 9. We could give you some Scriptual-examples of free-States but that we find none mentioned there but conclude that there was never any State more glorious more free more carefull of preserving it self then that of Rome and yet she fell too and never recovered her former libertie The Romanes out of a fore-sight that her ruine would come upon her by the oppression and avarice of her Governours made a Law de repetundis or of recovery against extorting Magistrates yet it served not to restrain their Provinciall Governours though it relieved the Citizens at home which was one of the two causes of Romes ruine for as Machiavel in his Discourses upon Livy l. 3. c. 34. observes that these two things were the causes of that Republiques dissolution the one was Contentions which grew upon the Agearian Law or partition of conquered Land among the Citizens the other was the prolonging of Governments viz. Dictatorships Consulships Generalships Tribuneships of the people and such like great Offices for by these meanes those great Officers had meanes and power to raise armes against the liberty of the people Sylla and Marius by this meanes could find Souldiers to take their part against the Publique and Iulius Caesar could find meanes hereby to make himself Lord of his native Country and Country-men These things we alleadge not as if we suspected any of you O ye noble Patriots to be guilty of any of these crimes that may either hazard the continuing of the present Government or destroy the publike liberty but to awake you and put you in mind to provide fit remedies against these growing evills whereby you may procure safety and peace to the Common-wealth and everlasting honour to your own Names and Posterities for they are to be thought worthy of honour not which begin but well end honourable Actions And we beseech you not to take it in ill part from us 〈◊〉 we offer our humble advices to you in these particulars â—â—nce we the people conceive it our duty to shew unto our Governours that good which by reason of the malignity of the times and of fortune we have not been able to do our selves to the end that you our Senators being given to understand thereof some of you whom God shall more favour may put it in practise for the publike good Neither is our opinion to be despised For it is a sure Maxime that the people are of as clear judgment in all things that conceive the Publique as any and is wise and circumspect concerning their liberties and are as capable of the truth they heare We know that Common-wealths have never been much amplified neither in dominion nor riches unlesse only during their Liberties for it is no mans particular
their liberty then whlle they have continually maintained it And having once gotten possession of their ancient rights they will watch them so carefully and with such strength and vigour as that they will hardly be surprized again or their rights any more wrested from them As it fell out in the case of the Romane State when the Romanes having freed themselves of the government of the Tarquins their hertditary Kings the Nobility began to take upon the the rule of the people by the exercise of the like or greater tyrany the the Tarquins had done the people being inforced by a necessity of their preservations created Tribunes as Guardians of the publick liberty whereby the insolence and Arbitrary power of the Nobilty was restrained and the people re-estated in their ancient liberty which continued inviolable to them for the space of 800. yeares after 300. yeares oppression of the Nobility to the great honour and renown of their Nation and exceding enlargement of their Common-wealth Now as concerning the liberty which the people of this Common-wealth doe and of right both divine and humane ought to challenge it consists of these particulars following Liberty of conscience in matters of Faith and Divine worship Liberty of the Person and liberty of Estate which consists properly in the propriety of their goods and a disposing power of their possessions As touching liberty of Conscience it is due of Divine right to the people of God since that the conscience is a Divine impression or illumination in the soule of man which God instills into the heart by faith whereby man is instructed to worship him in Spirit and Truth and it is as it were the ingraven Character of the mind wil of God in the soul of man not passive nor consisting of bodily substance therefore it is not to bee constrained or inforced to submit to any other rule then what the Creator by his revealed will according to the Scriptures hath imprinted in it And for that cause is onely to bee accountable to him whose image it is as being the onely competent Judge of his owne will As touching the liberty of our persons That is founded not onely in Divine Law but in Nature ulso and as protected by the municipicall and known Lawes of this Kingdom For as God created every man free in Adam so by nature are all alike freemen born and are since made free in grace by Christ no guilt of the parent being of sufficiency to deprive the child of this freedome And although there was that wicked and unchristian-like custome of villany introduced by the Norman Conquerour yet was it but a violent usurpation upon the Law of our Creation Nature and the ancient Lawes of this Kingdome and is now since the clearer light of the Gospel hath shined forth by a necessary harmony of humane society quite abolished as a thing odious both to God and man in this our Christian Common-wealth Now that the liberty of mens persons hath ever been a thing most pretious in the eyes of our Ancestors and right deare and of most tender regard in the consideration and protection of the Law if we doe but consider the originall Lawes of this Realme the proceedings of our Ancestors in the Acquisition and defence of their just liberties and the continuall vigilance of them in making and ordaining good Lawes for their necessary preservation we shall easily find that there hath not been any earthly thing or more weighty and important care to them then the preservation of their Liberties To prove this Andrew Horn a learned man in the ancient Lawes of this Kingdome in his Booke called The Marrow of Justice written in the reigne of King Edward the first fol. 1. saith That after God had abated the Nobility of the Brittons he did deliver the Realm to men more humble and simple of the Countries adjoyning to wit the Saxons which came from the parts of Almaigne to conquer this Land of which men there were fourty Soveraignes which did rule as Companions and those Princes did call this Realme England which before was named The Greater Britaine These after great warres tribulations and pains by long time suffered did choose amongst them a King to reigne over them to governe the people of God and to maintain and defend their persons and their goods in quiet by the Rules of Right and at the beginning they did cause him to sweare to maintaine the holy Christian Faith and to guide his people by right with all his power without respect of persons and to observe the Lawes And after when the Kingdome was turned into an Heritage King Alfred that governed this Kingdome about 174. yeares before the Conquest did cause the great men of the Kingdome to assemble at London and there did ordain for a perpetuall usage That twice in the yeare or oftner if need should be in time of peace they should assemble at London in Parliament for the government of Gods people that men might live in quiet and receive right by certain usages and holy judgements In which Parliament faith our Authour the rights and prerogatives of the Kings and of the Subjects are distinguished and set apart and particularly by him expressed too tedious here to insert Amongst which Ordinances we find That no man should be imprisoned but for a capitall offence And if a man should detain another in prison by colour of right where there was none till the party imprisoned died hee that kept him in prison should bee held guilty of murder as you may read pag. 33. And pag. 36. hee is declared guilty of homicide by whom a man shall die in prison whether it be the Judges that shall too long delay to do a man right or by cruelty of Goalers or suffering him to die of Famine Or when a man that is adjudged to doe penance shall be surcharged by his Goaler with Irons or other pain whereby he is deprived of his life And pag. 140. That by the ancient Law of England it was Felony to detain a man in prison after sufficient Baile offered where the party was plevisable Every person was plevisable but hee that was appealed of Treason Murder Robbery or Burglary pag. 35. None ought to be put in the common prison but onely such at were ATTAINTED or principally APPEALED or INDICTED of some capitall offence or ATTAINTED of false and wrongful imprisonment So tender hath the ancient Lawes and Constitutions of this Realme been of the liberty of their Subjects persons That no man ought to be imprisoned but for a Capitall offence as Treason Murder Robbery or Burglary And if for these offences yet ought he to be let to Baile which to deny were felony in case the prisoner were plevisable which is if he were not appealed indicted or attainted Nay you see it was Felony to detain a man in prison by colour of right when there was none Neitherwas the law tender of the persons of Innocents bailable
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
by him contrived and caused to be printed and published intituled The just Mans justification Or A Lettnr by way of Plea in Bar hath falsly and scandalously in certain Passages of the said Book affirmed and published concerning the said Earle of Manchester and his demeanour in his said Office and Imployment And touching the complaint by the said Lilburn alledged to be made by him and others to the said Earle relating to the said Earle as followeth Pa. 2. I complained to the Earle of Manchester thereof being both his Generall and mine And at the same time divers Gentlemen of the Committee of Lincoln as Mr Archer c. having Articles of a very high nature against him pressed my Lord meaning the said Earl to a triall of him at a Councell of warre And at the very same time the Major Aldermen and Town-Clerk of Boston came to Lincoln to my Lord meaning the said Earle with Articles of a superlative nature against King their Governor but could not get my Lord meaning the said Earle to let us enjoy justice at a Councel of War according to all our expectations as of right we ought to have had which at present saved his head upon his shoulders And page 8. and 9. of that Book did affirm these words viz We could not at all prevaile the reason of which I am not able to render unlesse it were that his two Chaplaines Lee and Garter prevailed with the Earle meaning the said Earle of Manchesters two Chaplains Ash and Goode to cast a Clergie-mist over their Lords meaning the said Earles eyes that he should not bee able to see any deformity in Colonell King II. THe said Iohn Lilbure within three moneths last past in a certaine book by him contrived and caused to be printed and published hereunto annexed intituled The Free-mans Freedom vindicated or A true Relation of the cause and manner of Lieu. Colonell Iohn Lilburns present imprisonment in Newgate being thereunto arbitrarily and illegally committed by the House of Peeres June 11. 1646. for his delivering in at their open Barre under his hand and seal his Protestation against their incroaching upon the common liberties of all the Commons of England in endeavouring to try him a Commoner of England in a criminall cause contrary to the expresse tenor and form of the 29 chapter of the great Charter of England And for making his legall and just appeale to his competent proper and legall Tryers and Judges the Commons of England in Parliament assembled did falsly and scandalously in the eighth page of that Book publish and affirm concerning the said Earle of Manchester these false and scandalous words I clearly perceive the hand of Ioab to be in this namely my old back-friend the Earle of Manchester the fountain as I conceive of all my present troubles who would have hanged me for taking a Castle from the Cavaliers in Yorkeshire but is so closely glu'd in in interest to that party that hee protected from justice Colonel King one of his own Officers for his good service in treacherously delivering or betraying Crowland to the Cavaliers and never called nor that I could heare desired to call to account his Officer or Officers that basely cowardly and treacherously betrayed and delivered Lincoln last up to the enemy without striking one stroke or staying till so much as a Troop of Horse or a Trumpetter came to demand it His Lordships head hath stood it seems too long upon his shoulders that makes him he cannot be quiet till Lieu. Generall Cromwels charge against him fully proved in the House of Commons be revived which is of as high a nature I beleeve as ever any charge given in there The Epitomy of which I have by me and his Lordship may live shortly to see it in print by my meanes And the said Iohn Lilburne in the Book and page last mentioned in scandall and dishonour to Henry Earle of Stamford a Peere of this Kingdome and late a Commander of Forces of the Parliament maketh this scandalous expression concerning the said Earle of Stamford viz. And for my Lord of Stamford at present I desire him to remember but one Article made at the delivery of Exceter which it may be may in time coole his furious endeavour to inflame the free people of England III. VVHereas the said Iohn Lilburne upon the 10. day of Iune last past by vertue of the Order of the Peeres assembled in this present Parliament was brought to the Barre of the House of Peeres then sitting in Parliament to answer concerning the said Book in the said first Article mentioned the said Iohn Lilburne falsly and maliciously intending to scandalize and dishonour the Peeres assembled in Parliament and their just rights and authorities did then and there in contempt of the said House of Peeres at the open Barre of the said House the Peeres then sitting in the said House in Parliament openly deliver a certain paper hereunto annexed under his hand and seale intituled The Protestation Plea and Defence of Lieu. Colonell John Lilburne given to the Lords at their Barre the 11. of June 1646. with his appeale to his competent proper and legall Tryers and Judges the Commons of England assembled in Parliament which paper is hereunto annexed and since caused the same to be printed and published In which paper among other scandals therein contained he published and affirmed concerning the Lords in Parliament these words following Viz. Therefore my Lords you being as you are called Peeres meerly made by prerogative and never intrusted of improved by the Commons of England And in another place thereof concerning their Lordships and their proceedings in Parliament did protest and publish these words following I doe here at your open Barre protest against all your present proceedings with me in this pretended criminall cause as unjust and against the tenor and form of the great Charter which all you have sworn inviolably to observe and caused the Commons of England to doe the same And therefore my Lords I doe hereby declare and am resolved as in duty bound to God my selfe countrey and posterity to maintain my legall liberties to the last drop of my blood against all opposers whatsoever having so often in the field c. adventured my life there-for and doe from you and your Barre as incroachers and usurping Judges appeale to the Barre and Tribunall of my competent proper and legall Tryers and Judges the Commons of England assembled in Parliament And in pursuance of his said malicious and illegall practice did afterwards contrive and publish a scandalous and libellous letter hereunto likewise annexed directed to Mr. Wollaston Keeper of Newgate or his Deputy wherein among other things he hath caused to be inserted and published these words concerning the Peeres in Parliament viz. Their Lordships sitting by vertue of Prerogative-patents and not by election or consent of the people have as Magna Charta and other good lawes of the Land tell me nothing to doe to
Articles upon their mariage that his wife should have the profits proceeding of his prisoner Which proceedings puts us in mind of that story we read in Lucian who saith that Homer upon a time had drunk too much of the sweet wine of Chios his native Countrey and fell a spewing and there came Pindarus and Virgil and Homer and a great many more and lickt up his spewings and thereby became inspired with Poetry every one according to the quantity of the spewings that he lickt up So these Goalers upon the dissolution of Regall Authority each of them hath lickt up a part of the spewings of it are become exercisers of this illegal arbitrary power so far as their Wits will give them way to the extream vexation and oppression of their prisoners Insomuch that the poor prisoners doe wish with holy Job That they had been as an hidden untimely Birth or as Infants that never saw light who are in that place where the wicked cease from troubling and the weary be arrest where the prisoners rest together they hear not the voice of the oppressour wherefore is light given unto him that is in misery and life unto the bitter in soule Job 3. 16 17 18 20. Yet tell Mr. White one of the best of the bunch though there are some honest men amongst them and one that would deserve to be esteemed a moderate man if he would give over his rayling and scribling of foolish Books against the dissenting-brethren and men in affliction of any of these practises his answer will be why sure it cannot be my Lieutenant is a Saint a godly man one that never did any man any wrong no nor would do it to gain a world He is a man that is very diligent in taking Notes at Sermons and goes to repetitions often and does nothing but what he doth by the Order of the Committee for the safety of the Tower and surely hee is wronged Which puts us in mind of a merry story we read in the History of Reynard the Fox Vpon a time the Lyon proclaimed a great Feast and invited all the Beasts of the Court amongst divers beasts that came thither the Panther came and made a great complaint against Rynard the Fox which was that hee had feyning great devotion promised unto Kyward the Hare to teach him his Creed and to make him a fit Chaplain for the King and did sing Credo Credo to him the silly Hare believing the Fox would have kept his promise and have â—aught him to sing Credo and become a good Chaplain for his preferment came between his legs but he was no sooner there but in stead of teaching him his Credo the Fox snapt at his throat and if the Panther had not come in rescued him the Fox had there devoured the Hare When this complaint was made Grymbard the Brock that was Reynards sisters Son answered for his Unkle My Uncle is a Gentleman and a true-man he cannot endure falshood he doth nothing without the Councell of his Priest hee eateth but once a day he liveth as a recluse he chastiseth his body and lives only by Almes and good mens charities doing infinite penance for his sins so that he is become pale and lean with praying and fasting for he would fain be in Heaven But whilest Grymbard was making this defence in comes Chanticleer the Cocke clapping his wings with dolefull cry and accused Reynard for murthering his faire Daughter Coppel and that hee had eaten her and that Grymbard had eaten the bones which Reynard left We promise you Mr. White a shrewd evidence against Reynard neither though that Reynard pleaded this was done by advise of his priest and was paler and leaner with fasting and praying then your Lieutenant is yet it did not excuse him And you may remember Mr. White that there is an out-cry against the Lieutenant that albeit the honourable Houses of Parliament have made an Ordinance that prisoners in the Tower of London should be brought to the Bar of the Kings Bench by Habeas Corpus to the end they might be charged by their Creditors for their just debts and removed to the Kings Bench Yet the Lieutenant did refuse to obey an Habeas Corpus in that case upon pretence that there were fees due unto him from the prisoner which was to be removed and for the same he is ordered upon a pain to bring in the prisoner the first day of the next Terme the Judges not allowing that a good plea. And as we remember Mr. White when your wife distrained your prisoners Trunk your Lieutenant awarded the prisoner to pay 4. l. for the redemption to you before he could have it So that Mr. White you playd Grymbard here nor can the Lieutenant free himself by saying he did these things by order of the Committee for we are confident that the Committee are persons of that piety honour integrity justice that they would not stain their names with command of such barbarous tyranny as hath been practised against the poor prisoners their Wives Ladies and Children in that prison Therefore we do assoyle them and leave it at Mr. Lieutenants door till he plainly and evidently remove it further And because Mr. Lieutenant or any that he employes for the guard of his prisoners may know their duties of their places the more cleerly and may not pretend ignorance for usage of their prisoners we have thought fit to publish the Lawes that have reference to Gaolers and Keepers of Prisons which Lawes they upon their several penalties are to observe and the people to preserve as a main badge of their Liberties least by the neglect of them an insensible slavery be drawn upon them Now concerning the lawes of prisoners and the usage of prisoners we find by the common law Quod Carcer ad cominendos non ad puniendos haberi debet as Bracton l. 3. f. 105. Gaoles are ordained to hold prisoners not to punish them For imprisonment by the law is neither ought to be no more then a bare restraint of liberty without those illegall and unjust distinctions of close and open prisoner as appears by Stamf. pl. Cor. f. 30. Yet we know some kept close prisoners in the Tower almost 3 years committed only by Warrant of a single Peer a most horrible oppression And therefore Bracton f. 18. saith That if a Gaoler keepe his prisoner more close then of right he ought whereof the prisoner dieth this is Fellony in the Gaoler And Horn in the Mirrour of Justice p. 288. saith That it is an abusion of the law that prisoners are put into Irons or other pain before they are attainted And p 34. 36. he reckons the sterving of prisoners by famine to be among the crimes of homicide in a Gaoler And we find 3. E. 3. Fitzh Tit. pl. Cor. 295. That it was Felony at common law in Gaolers to compel their prisoners by hard imprisonment to become Approvers whereby to get their
goods which law is since confirmed by the statute of 14. E. 3. c. 9. with some inlargement as to under-keepers of prisons and the penalty of the law and that Gaolers having done this have been hanged for it you may read 3. E. 3. 8. Northampton Fitzh pl. Cor. 295. and else-where but this for a taste to them Wee now come to shew what fees are due to them The Mirrour of Justice p. 288. tells us that it is an abusion of the law that prisoners or others for the to pay any thing for their Entries into the Goale or for their going out this is the common-law there is no fee due to them by the common law See what the statutes say The State of Westm 1. c. 26. saith that no Sheriffe or other Minister of the King shall take reward for doing their Offices but what they take of the King if they do they shall forfeit double to the party grieved and be punished at the will of the King Under this word Minister of the King are encluded all Escheators Coroners Gaolers and the like soe Sir Edward Cook 2. part of his Instistitutes p. 209. affirms and agreeable is Stamf. pl. Coron 49. a. Nay by the statute of 4. E. 3. c. 10. Gaolers are to receive theeves and felons taking nothing by way of fees for the receipt of them so odious is this extortion of Gaolers that very theeves and felons are exempt from payment of fees And we find in our Law-bookes that no fees are due to any Officer Gaoler or minister of Justice but only those which are given by Act of Parliament for if a Gaoler will prescribe for any fees the prescription is void because against this Act of Parliament made 3. E. 1. being an Act made within time of memory and takes away all manner of pretended fees before and wee are sure none can be raised by colour of prescription since and therefore we find by the bookes of 8. E. 4. f. 18. That a Marshall or Gaoler cannot detain any prisoner after his discharge from Court but only for the fees of the Court the Court being not barred by this statute of Westm 1. afore-mentioned and if he doe he may be indicted of extortion and agrecable to this is the book of 21. H. 7. f. 16. where amongst other things it is held for law that if a Gaoler or Guardian of a prison takes his prisoners upper garment Cloak or money from him it is a trespasse and the Gaoler shall be answerable for it this is a note for the Gentleman-Porter of the Tower so that we may undeniably conclude that there is no fee at all due to any Gaoler or Guardian of a prison from the prisoner but what is due unto him by speciall Act of Parliament And if a Gaoler or Guardian of a Prison shall take any thing as a fee of his prisoner he may and ought to be indicted of extortion and upon conviction to be removed from his office And if his prisoner by constraint menasse or dures be enforced to give him money he may recover that money against the Gaoler again in an Action of the case to be brought against him as his Bayliffe per accompt rendre And it is fit to be remembred also that whilest prisoners are in custody having nothing of their own to maintain them being either despoyled of their estates or goods by plunder sequestration long lying in prison or otherwise That the prisoners in all the Kings prisons should be maintained at the Kings charge out of the Kings Revenues according to the old law of the Land Bracton said thus Prisones imprisonati antequam convicti fuerint de terris suis desseisiri non debent nes de rebus suis quibuscunque spoliari sed dum fuerint in prison◠debent de proprio in omnibus sustentari doneo per judicium deliberati vel condemnati fuerint which we English thus Prisoners detained in prison ought not to be disseised or put out of their lands and free-holds nor spoyled of their goods before they be convicted but they ought to be maintained of their own goods and estates in all things they want untill by judgment they are either acquitted or convicted Nay we say further that if prisoners have not whereof of their own to live theyought to be maintained according to their qualities out of the Kings revenue and at his charge whose prisoners they are and this is according to the fundamentall lawes of the Land and is a liberty inheritable belonging to the free-born subjects of England but if wee look into the prisons of these said times Oh! what horrible oppressions extortions cruelties and most unchristian-like tyrannies are exercised and practised upon the free-born subjects of England in all prisons within the kingdome by these sons of Belial these ravening Harpies and tormenting Gaolers whom we may properly call the Divels Deputies that rack even the very bowels and feed upon the very livers of their prisoners sucking away the very blood that should give life to their bodies from them what lamentable cryes sighes and groanes doe wee hear from every corner of this kingdome especially of this City from the poor starved oppressed life-wearied prisoners shut up inclosed in the Dungeons and Prisons in all places What horrible lamentations imprecations and curses are uttered and sent up to God Almighty in anguish of mind and bitternesse of spirit by these poor prisoners their wives and children not onely against their tormenting Gaolers but also against those Priests of the body politique those Country-Committees who have turned the wives and children of poor prisoners a begging and sent them up to sterve in Prisons and Dungeons under the hands of mercilesse Gaolers with their distressed Husbands and Parents having not only their goods and free-holds taken away from them which by law should be their support in prison but what also they beg or borrow is extorted from them by these ravening mercilesse and oppressing Gaolers and their Ministers We therefore the free-born people of England having seriously weighed and considered with our selves that by these lordly powers and sentences executed upon us by that sentence of the house of Peers upon Lieut. Col. John Lilburn a free-born English-man and one that hath so often with his sword in his hand for the redemption and reviving of our declining liberties adventured his lite in the field against the Royall intruders and out of hatred and detestation to the execrable and odious oppressions of Cōmitteemen Gaolers and other inferiour Ministers of this present State having an earnest desire and resolution to enjoyour liberties which with our dearest bloods and with the losse of so many lives of our dear brethren and vast expence of treasure wee have purchased and being of nothing so much affected and enamoured as to live under the happy and flourishing estate of this ever renowned Parliament the most honourable Commons whom we have chosen intrusted for us to sit at Westm.
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
good that amplifies the Kingdome We know that those that haue in their hands the Government of a State ought to increase the number of their free Subjects and make them as their Associates and not Vassals We know that it is more honourable and profitable unto a State moderately to use their Subjects meanes thereby to keep their State in perpetuity then through covetousnesse to devoure them in one day and in their losse to undoe themselves for ever We know that Tyrannie is a violent forme of Government not respecting the good of the Subjects but only the pleasure of the Commanders We know that it is better to live under an hard and harsh known written law where every man may read his duty and know his offence and punishment then under the mildest arbitrary government where the Subject is condemned at the will of their Judges without any certain or known Rules how specious or just soever the pretence of this kind of proceeding may be Wee know that the pretence of necessity in a Prince or State is but the Bawde to Tyrannie And that Tyrannie is more odious in a State we desire to maintain by love then in a Prince that seekes to bring it upon his Subjects by force Wee know that those States that call all the endeavours of their subjects only duty and debt and are more apt to oppresse their people then to do them Justice shall find themselves upon the first change of fortune not only the most friendlâ—sse but even the most contemptible and despised of all other And we fear that notwithstanding all our desires of the preservation of this State there will be little amended till by sad experience the truth of our conjectures in the hazard of this Common-wealth are made manifest For we know that all men are better taught by their owne errours then by the examples of their fore-goers but if our earnest desires and humble supplications shall either with scorn be rejected or with negligence disregarded to the apparent hazard of the publike liberty and most desirable State we wish to support we hope that God will raise up some noble English Romane Spirit such a one as Caius Flaminius who as Sir Walter Rawleigh l. 5. p. 357. observes for the preservation and maintenance of that Common-wealth understanding the Majesty of Rome to be wholly in the people and no otherwise in the Senate then by way of delegacy or grand Commission did not stand highly upon his birth and degree but assisted the Multitude and taught them to know and use their power over himself and his fellow-Senators in reforming their disorders and vindicating the publike liberty of his Countrey In and for which we are resolved to dye and which we wish may alwayes flourish and continue for the perpetuall benefit utility and renown of all the free-born Subjects of England FJNJS The Publisher to the Reader COurteous Reader in regard Lieu. Colonel Lilburns Charge and Sentence in the Lords House and their Orders thereupon are not as yet in any Book printed but in this Vox Plebis although there is in several Books much of his cruel usage by vertue thereof published I shall desire thee to read his own two Books called Londons Liberty in Chains discovered printed Octob. 1646. And his Anatomy of the Lords Tyranny and Injustice exercised upon him printed Novemb. 9. 1646. which two compared with this doe fully and amply declare and prove all the Lords proceedings with him to be most illegall and unjust And as thou readest the fore-going Discourse with thy Pen amend these following Presse-faults Pag. 2. line first for irepairable read irreparable p. 4. l. 15 for as protected read is protected and l. 37. for Marrow of Iustice read Mirror of Iustice p. 6. l. 5. for their subiects read the subiects p. 9. l. 32. for contentment read contenement page 12. l. 19. for May 16. H. 6. read Mich. 16. H. 6. p. 15. l. 28. read outlawed but by p. 16. l. 20. for aed read and p. 17. l. 14. for dye read dine p. 18. which should be p. 20. l. 9. for vinvocally read universally p. 21. l. 18. for torvous read torcious p. â—2 l. 27. for witnesses read Writs l. 34. for Astutia read Atia p. 24. l. 4. for rediendo read redeundo p. 28. l. 4. 5. read in interest for in in interest l. 25. for inflame read inslave p. 29. l. 10. for improved read impowered p. 30. l. 1. read conceiving for concerning p. 37. l. 17. read quod for quid p. 47. l. 7. read question for questistion p. 57. l. 35. read pests for Priests p. 62. l. 12. read the people for these people l. 13. read commotion for commontion p. 63. l. 14. for can give remedy read can give no remedy p. 66. l. 21. for the Agearian law read Agrarian law p. 67. l. 11 for conceive the publick read concern the publick FINIS