protection of the law aâ—d not to be permitted to sue for a mans right or to bee staied by injunction or pronibition so that a man cannot proceed All which causes are illegall and contrary to this clause of the great Charter For every man ought to bee permitted to goe to triall judgement and execution in his cause according to the course of the law of the land And if he faile in his suit he shall pay costs and be amerced pro falso clamore Which amencement ought to bee reasonable salvo contenemento that he be not destroyed as is before declared Which payment of destruction is the fourth particular and now comes to be handled The words of the great Charter are That no man shall be any way destroyed but by judgement of his equals or according to the law of the land This word destruere amongst the Grammarians est idem quod penitus evertere diruere to destroy is all one as utterly to overthrow and demolish To destroy a man is to forejudge a man of life limb or liberty to dis-herit to put to torture or death any man without lawfull tryall due preparation to his defence or by SURREPTITIOUS IUDGEMENT All which are contrary to the law of the land It is the Genus of all the former particulars it is the most pernicious extent of all arbitrary power there have been to many examples of it Thomas Earl of Lancaster in the 14. E. 2. was destroyed that is adjudged to dye as a Traytor without lawfull try all of his Peers And afterwards Henry Earl of Lancaster his brother was restored First because that he was not arraigned and put to answer Secondly because that contrary to this Charter of Liberties the said Thomas being one of the Peers of the Realm without answer or lawfull judgment of his Peers he was put to death Such like proceedings were had in the case of John of Gaunt as appears P. 39. Coram Rege and in the E. of Aruudels case Rot. Par. 4. E. 3. Nu. 13. and in Sir John Alees case 4. E. 3. Nu. 2. Such was the destruction committed upon the Lord Hastings in the Tower of London by K. Richard the 3. who sware he would not dye before he saw his head off and thereupon caused him to be executed without tryall answer or lawfull conviction such was the destruction of the Lord Rivers and many other of sad remembrance but above all that Attainder of Thomas Cromwell Earl of Essen who was attainted of high Treason as appears Rot. Part. 32. H. 8. being committed to the Tower of London and forth-coming to be heard and yet never called to answer in any of the Houses of Parliament they sitting which we hope shal never be more drawn into president but wish with a clearned sage in the Law Quod auferat oblivio si potest si non utcunque silentium tegat which is let oblivion take away the memory of so foul a fact if it can if it cannot let silence cover it For the more high and honourable the Court is the more just and honourable it ought to be in the proceeding and to give example of Justice to inferiour Courts for these destructores subditorum dom Regis the destroyers of the free-born people of the Kingdom were ever-odious and hatefull to the subject and severe pains appointed for them as appears by the Statute of Kenelworth Par. 16. and by the old Statute of Rag-man and that this kind of destroying the Kings people is utterly against the Law of the Land is most evident not only by the great Charter but also by the Statute of 5. c. 3. c. 9. and 28. E. 3. c. 3. afore-mentioned and by the ancient Lawes of the Land as appears by Horn in his Mirrour of Justice c 2. sect 3. We proceed now to Exile which is the fifth particular The great Charter runs thus No man shall be exiled but by the Law of the Land Exile or banishment is of two sorts The one a voluntary which is at the Common-Law and that is when a man would abjure the Realm for a Fellony committed by him having taken sanctuary to avoid the punishment of death chusing rather perpetuall banishment then to put himself to the hazard of his life by a legall tryall for his offence as Stamf. Pl. Cor. p. 117. The other is when a man is inforced to banishment which is only legally done by Act of Parliament as appeares by the Statute of Westrn 1. cap. 20 35. El. c. 1. and 39. El. c. 4. and by that Judgment or Statute of banishment made of the two Spencers 15. E. 2. called Exilium Hugonis le-Despencer patris filii for though there was an Order or Ordinance made in the Lords house Anno 6. E. 3. Nu. 6. That such learned men in the Law as should be sent as Justices or otherwise to serue in Ireland should have no excuse yet saith Sir Edw. Cooke 2. part Instit p. 48. That Order or Ordinance being no Act of Parliament it did not bind the subject so that we that are the free-born subjects of England cannot at this day be enforced or compelled to depart the Realme or be exiled or banished from our native Country but by Act of Parliament And from this we passe to examine what is to be esteemed a lawfull Judgment of our Peers and what is here in this Charter meant by the Law of the Land This Great Charter was penned in Latine the words are thus Nec super eum ibimus nec super eummittemus nisi per legale judicium Parium suorum which are more emphatically in the Latine then in our English Translations of this Charter for the Translations render it We will not passe upon nor condemn any man but by the lawfull judgment of his Peers or by the Law of the Land whereas the words in the Latine import That the King shall not in his own person when he is personally present in his high Court of Parliament or any other of his Courts of Justice cause any man to be otherwise tryed or condemned then by lawfull judgment of his Peers or the law of the Land nec super eum mittemus that is That no Judges Commissioners or Justices of the King shall by force of any Writ or Commission from the King under the Great Seal in his absence arraign try or condemn any man but by the lawfull judgment of his Peers or by the law of the Land Now this legale judicium parium suorum or lawfull judgment of a mans Peers is and hath alwayes had a two-fold construction in law the one is When a Lord of the Parliament hath committed treason or felony or other capitall offence whereby he is indictable at the Kings Suite there he by vertue of this Charter ought to be tryed by his Peers that is such as are Lords of Parliament that sit there by reason of their Nobility for no Noble-man that is not a Lord 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-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
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
man is to be tryed per legale judicium parium suorum by the lawfull judgment of his Peers which Statute gives the Lords of Parliament a jurisdiction over their Peers which cannot be taken from them and as the Lords have a jurisdiction over their Peers so have the Commons over their Peers viz. all the Commons of England for as Sir Edw Cook 2. part of his Institutes pag. 29. in his Coment upon Magna Charta c. 14. observes that the generall division of persons by the Law of England is either into the Nobility of the Peerage or Lords house or the Commons of the Realm for as every of the Nobles is a Peer to each other though they have severall Names of Dignity as Dukes Marquisses Earles Viscounts and Barons so of the Commons of the Realme each Commoner is a Peer or Equall to another though they be of severall Degrees as Knights Esquites Citizens Gentlemen Yeomen and Rurgesses and this distinction we find likewise in Bracton c. 2. sol 36. and both these Jurisdictions do belong to both Houses naturali equitate by a naturall right or equity as hereafter more plainly will be demonstrated and according to this Jurisdiction have the Commons themselves given judgment upon a Commoner as in the case of Thomas Longe cited by Sir Edward Cooke vbi supra p. 23. and recorded in the Journall Book of the House of Commons 8. Eliz. Onslow Speaker f. 19. and in the case of Arthur Hall 23 Eliz. f. 14. Popham Attorney General Speaker and divers others Now that the Lords and Commons have a joynt Jurisdiction or power of Judicature over both Lords and Commons is manifest by the Judgments given against the Lord Audley at the Parliament held at Yorke Anno 12. 22 Consideratum est per Praelatos Comites Barones communitatem Angliae and in 15. E. 2. the Judgment given against the Spencers both Earles Hugh the Father and Hugh the Son who were adjudged to exile by the Lords and Commons and Sir John Alees adjudged by the Lords and Commons as appeares 42. E. 3. Nu. 20. Rot Parl. and of late time in the cases of Sir Giles Mompesson the Lord Viscount of St. Alban and the Earl of Middlesex in 18. 21. Iacob Regis In all which Judgements the Kings consent was concurrent which gave those Judgments life and efficacy Having thus distinguished the severall and joynt Jurisdiction of both Houses it will bee necessary to shew whence these have sprung and how they are grown It appears by the old Treatise de modo tenendi Parliamentum which was made before the Conquest and presented to the Conquerour who held a Parliament in that forme as appeares by the book of 21. E. 3. f. 60. That both Houses of Parliament sate together and were but in effect one House and so continued long after the Conquest till 5. and 6. E. 3. as appears by the Parliament Rolls of 5. E. 3. Nu. 3. and 6. E. 3. and by the 4. part of Sir Edward Cookes Instit p. 2. and as may be gathered by the Preamble to the Statute of Marlebridge made 52. H. 3. Westm the first 3. E. 1. Westm 2. 13 E. 1 the Statute of Yorke made 12. E. 2. and others which mention that the Prelates Earles Barons and Commonalty of the Realm were called together whereby we may infer that they sate as one House to consult of the weighty affaires of this Kingdom from whence we collect that the Lords had whilest they sate as one House no particular jurisdiction nor the Commons any to themselves alone but their jurisdiction was joynt being mixt of both their powers and communicative to all alike of both Kingdoms and this appeares cleerly by the case of the Lord Audley 12. E. 2. and the cause of the Spencers 15. E. 2. afore cited and by the case of Nicholas Segrave adjudged in Parliament as appears Placit Parliament 33. E. 1. Rot. 33. per Praelatos Comites Barones alios de consilio by the Prelates Earles Barons and others of the Councell that is the Parliament and more plainly by that spoken by Sir Edward Cook 2 part of his Instit p. 50. And though of antient time saith he the Lords and Peers of the Realm used in Parliament to give judgment in case of Treason and Fellony against those that were no Lords of Parliament Yet at the suit of the Lords it was enacted that albeit the Lords and Peers of the Realm as Judges of the Parliament in the presence of the King had taken upon them to give judgment in case of Treason and Fellony of such as were not Peers of the Realm that hereafter no Peers shall be driven to give judgment on any others then on their Peers according to the Law And he cites Rot. Parl. 4. E. 3. Nu. 6. to maintain this assertion of his But to conclude more strongly we find it recorded in 4. E. 3. Rot. 2. and inrolled in Chancery in the cause of Sir Simon de Berisford who was adjudged as an accessary to Roger Mortimer of the murder of King Ed 2. in these very words viz. And it is assented and agreed by our Lord the King and all the Grandees in full Parliament that albeit the said Peers as Judges of Parliament took upon them in the presence of our Lord the King to make and give the said judgment by the assent of the King upon some of them which were not their Peers and that by reason of the murder of their liege Lord and the destruction of him which was so neare of the Blood-Royall and Son of a King that therefore the said Peeres which now are or the Peeres which shall be for the time to come be not bound or charged to give judgment upon others then upon their Peers nor shall do it But let the Peers of the land have power but of that forever they be discharged and acquitted and that the aforesaid judgment now given be not drawn into example or consequence for the time to come by which the said Peeres may be charged hereafter to judge others then their Peers against the Law of the Land if any such case happen which God defend All which afore-mentioned presidents and judgments were made and given before the separation of the two Houses whilest they sate together Out of which we collect and gather that the Lords had no particular jurisdiction to themselves or of themselves before the division separation of the Pouses and that it was against the Law of the Land for the Peers before this separation to judge a Commoner in any case whatsoever Nay that their hands are bound by their assent never to judge any in future which Sir Ed Cork saith was enacted So that joyning the one consideration with the other it is most cleer that the Peers at this day cannot judge a Commoner no not if the King joyn with them especially in case of life or free-hold for in the book of 4 H. 7.
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.
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
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
confirmed by the Petition of Right in the 3. year of this King Now for remedy against any man that will infringe this Charter to the injury of any free-man that ought to have benefit of it the party grieved may have an Action vpon the great Charter against the party offending as was brought against the Prior of Oswin P. 2. H. 8. Rot. 538. in Banco Regis and we find in the Register-Book of witnesses fol. 64. a Writ directed to the Sheriffe Adcapiend impugnatores Juris Regis ad ducendum cos ad Gaolam de Newgate to apprehend the opposers of the Kings Charter and to bring them to the Goal of Newgate or the party grieved may indict the Offendor at the Kings Suit for going contra formam Magnae Chartae whereof we find a President in Sheffields case Pasch 3. H. 8. B. R. Or the party grieved may bring his Writ de Odio Astutia de homine Replegiando or Habeas Corpus as appeares by the Register f. 77. and by the Statute of Wesim 2. c. 29. and by the Statute of Glouc. c. 9. as his case shall require Having thus dissected the severall branches of this Great Charter which most eminently concern our publike liberty the birth-right of the free born subjects of England and stated the question thereof We will now with all due regard to the house of Peers examine that judgment or sentece pronounced against that impregnable Bulwark of the common-liberty Lieutenant Col. John Lilburn and the proceedings leading thereunto by the Rules of this lawful judgment or law of the land mentioned in the great Charter professing that as we will be tender not willing to derogate at all from any lawful power jurisdiction or priviledge of that honourable house so we will be as careful in preserving and maintaining our liberties swerving neither on the one side nor on the other from the true narrative of the fact nor the literal declaration of the order sentence as it hath been represented unto us And first we shal shew out of what fountain all the troubles of this worthy Gentleman have sprung which is no other then from his fidelity and love to his Country they have been all occasioned by his prosecution of Col. Edw. King upon certain Articles exhibited against this Colonel to the honourable house of Commons in Aug. 1644. which yet hang there undetermined and which charge the said Colonel with disloyalty infidelity treachery and breach of trust to the Parliament to whom he was a sworn servant and entertained in their pay To prevent this Gentlemans prosecution Col. King did by undue meanes cause him to bee imprisoned July 19. 1645. where being removed to Newgate he remained till the 14. of March 1645. upon which day upon Mr. Recorders motion in the house of Commons hee was enlarged there being nothing objected against him and was by Col. King afterwards caused to be arrested April 14. 1646. as he was going to prosecute and pursue this Colonell for the Publike good and for matters contained in those Articles and to follow his other businesse depending in Parliament For Interest Reipublice ut puniantur rei ne per omissionem unius multi atrociora perpetrent slagitia as Cicero saith It is profitable for the Common-wealth that guilty persons bee punished least by omission of the punishment of one many men by that ill example may be encouraged to commit more heinous offences This Arrest was illegal and a breach of priviledge of Parliament to the house of Commons who were originally possessed of the Cause for all suitors in any Court of Justice at Westrn ought to have the protection and priviledge of that Court where they sue against any that shall arrest them in any other Court for the same matters Eundo morando rediendo which is going thither staying there returning homeward from their prosecution as by 27. H 6. Fitzh pr. 4. and divers other Bookes appears and being put to plead by this unjust provocation to that action he wrote that letter or booke to Mr. Justice Reeve the 6. of June 1646. whereat the great offence is taken and upon which his grand charge was grounded the proceeding was very quick for the 10. of Iune there was a Warrant directed to the Gentleman-Usher attending the Lords house or his Deputy from the Lords to summon him to appeare before their Lordships the next day being the 11. he was summoned and the same day he appeared before the Lords Bar and being brought to the Bar was asked whether he wrote that letter or booke to Iustice Reeve here is an examination ore tenus not usual in Parliament but frequent in Star-Chamber and being earnestly prest in it the same 11. day of Iune he delivered in a paper containing his plea and defence whereupon the same day he was committed by their Lordships prisoner to Newgate for delivering in his plea and defence which they in their Warrant call a scandalous and contemptuous paper being in truth but a recital and declaration of the Lawes Statutes of England that made for his defence and a declaratory of the liberties of all the Commons of England which by law they ought to enjoy and by nature is their proper and free birth-right and the 16. of the same moneth he presented his Petition to the honourable house of Commons against their Lordships proceedings being in the nature of an Appeale to the Commons as his proper and onely Iudges The 22. of June the Lords sent an Order to the Keeper of Newgate to bring Mr. Lilburn againe to their Bar the next day because he refused to kneel at their Barre was the next day being the 23. of June committed close prisoner to Newgate and not permitted to have Pen Ink or Paper and none to have accesse to him in any kind but only his Keeper untill that Court should take further order Where he remained in this condition till the Tenth day of Iuly 1646. which day Serjeant Nathaniel Finch delivered into the said house of Lords certain Articles with certain Bookes and Papers annexed against the said Lieutenant-Colonel JOHN LILBVRN which you have word for word here printed July the tenth 1646. The Charge against Lieutenant-Colonel JOHN LILBVRN as followeth ARTICLES Exhibited before the Lords in Parlia-ment assembled by Nathanael Finch Knight and one of his Majesties Ser-geants at Law against Lieu. Colonell John Lilburne for high Crimes and Misdemeanors done and committed by him I. VVHereas rhe Right Honorable Edward Earle of Manchester by the space of divers yeares last past hath been and yet is one of the Peeres of this Realm And where as the said Earle was by Ordinance of Parliament appointed Generall of divers Forces raised by the Parliament the said Iohn Lilburne intending to scandalize and dishonour the said Earle and to raise discord between the said Earle and other the subjects of this Realm He the said Iohn Lilburne in a certain Book hereunto annexed and
try me or any Commoner whatsoever in any criminall cause either for life limb liberty or estate But contrary hereunto as incroachers and usurpers upon my freedomes and liberties they lately and illegally endeavoured to try me a Commoner at their Barre For which I under my hand and seale protested to their faces against them as violent and illegall incroachers upon the Rights and Liberties of me and all the Commons of England a copy of which c. I herewith in print send you And at their Barre I openly appealed to my competent proper legall Tryers and Judges the Commons of England assembled in Parliament For which their Lordships did illegally arbitrarily and tyrannically commit me to prison into your custody Which Protestation and Papers and matters therein contained doe falsly and scandalously and maliciously charge the Peeres in Parliament with tyranny usurpation perjury injustice and breach of the great trust in them reposed and are a high breach of the Priviledges of Parliament And are high offences against the Lawes and Statutes of this Kingdome and doe tend to the great scandall of the said Peeres and the authority with which they are intrusted to stir up differences between the said Peeres and other the Subjects of this Realme Natha Finch Vpon which Articles he refusing to hear them read as concerning their proceedings against him to be illegall and that as a Commoner of England they had no jurisdiction over him they proceeded to sentence him as followeth Iuly 10. 1646. JT is to be remembred that the 10. day of Iuly in the 22. Year of the Raign of our Soveraign Lord King Charles Sir Nath. Finch Knight His Majesties Serjeant at Law did deliver in before the Lords assembled in Parliament at VVestminster certain Articles against Lieutenant-Colonell Iohn Lilburn for high Crimes and Misdemeanours done and committed by him together with certain Bookes and Papers thereunto annexed Which Articles aad the said Bookes and Papers thereunto annexed are filed among the Records of Parliament The tenour of which Articles followeth in these words Which Articles being by the command of the Lords then and there assembled in Parliament read It was then and there that is to say the said 10. day of July by their Lordships ordered That the said John Lilburn be brought to the Bar of this House the 11. day of the said July to answer the said Articles That thereupon their Lordships might proceed therein according as to Justice should appertain At which day aforesaid the 11. day of July Anno Dom. 1646. the said John Lilburn according to the said Order was brought before the Peers then assembled and sitting in Parliament to answer the said Articles And the said John Lilburn being thereupon required by the said Peers in Parliament to kneel at the Bar of the said house as is used in such Cases and to hear his said Charge read to the end that he might be inabled to make defence thereunto The said John Lilburn in contempt and scorn of the said high Court did not only refuse to kneel at the said Bar but did also in a contemptuous manner then and there at the open Barre of the said House openly and contemptuously refuse to heare the said Articles read and used divers contemptuous words in high derogation of the Justice Dignity and Power of the said Court And the said Charge being neverthelesse then and there read the said John Lilburn was then and there by the said Lords assembled in Parliament demanded what Answer or Defence he would make thereunto the said Iohn Lilburn persisting in his obstinate and contemptuous behaviour did peremptorily and absolutely refuse to make any Defence or Answer to the said Articles and did then and there in high contempt of the said Court and of the Peers there assembled at the open Bar of the said House of Peers affirme that they were Usurpers and unrighteous Judges and that he would not answer the said Articles and used divers other insolent and contemptuous speeches against their Lordships and that high Court Whereupon the Lords assembled in Parliament taking into their serious consideration the said contemptuous carriage and words of the said John Lilburn to the great affront and contempt of this high and honourable Court and the Justice Authority and Dignity therof It is therefore this present 11. day of Iuly ordered and adjudged by the Lords assembled in Parliament That the said Iohn Lilburn be Fined And the said Iohn Lilburn by the Lords assembled in PARLIAMENT for his said contempt is Fined to the Kings Majesty in the summe of two thousand pounds And it is further ordered and adjudged by the said Lords assembled in Parliament That the said Iohn Lilburn for his said contempts be and stand committed to the Tower of London during the pleasure of the said House And further the said Lords assembled in Parliament taking into consideration the said contemptuous refusall of the said Iohn Lilburn to make any Defence or Answer to the said Articles did declare That the said Iohn Lilburn ought not thereby to escape the Justice of the House But the said Articles and the Offences thereby charged to have been committed by the said Iohn Lilburn ought thereupon to be taken as consessed Wherefore the Lords assembled in Parliament taking the premises into consideration and for that it appeares by the said Articles That the said Iohn Lilburn hath not onely maliciously published severall scandalous and libellous passages of a very high nature against the Peers of Parliament therein particularly named and against the Peerage of this Realm in generall But contrived and contemptuously published and openly at the Barre of the House delivered certain scandalous Papers to the high contempt and scandall of the Dignity Power and Authority of this House All which offences by the peremptory refusall of the said Iohn Lilburn to answer or make any Defence to the said Articles stands confessed by the said Lilburn as they are in the said Articles charged It is therefore the said Day and Year last above-mentioned further ordered and adjudged by the Lords assembled in Parliament upon the whole matter in the said Articles contained I. That the said Iohn Lilburn be Fined to the Kings Majesty in the summe of two thousand pounds II. And that he stand and be imprisoned in the Tower of London by the space of 7. years now next ensuing III. And further that he the said Iohn Lilburn from henceforth stand and be uncapable to bear any Office or Place in Military or in Civill-Government in Church or Common-Wealth during his life Die Sabbathi 11. Julii 1646. ORdered by the Lords in Parliament That Iohn Lilburn being sentenced by this House shall for his high Contempt and Misdemenors done to this High Court according to the said Sentence stand committed to the Tower of London for the space of 7. Years next after the date hereof And that the Lieutenant of the said Tower of London his Deputy or Deputies are to keep
him in safe custody accordingly And that he doth take care that the said Lilburn do neither contriue publish or spread any seditious or libellous Pamphlets against both or either of the Houses of Parliament To the Lieutenant of the Tower of London his Deputy or Deputies And because this Sentence was conceived not to be severe enough by the Lieutenant of the Tower hee did procure an Order dated Die Mercurii 15. Julii 1646. which followes in these words Die Mercurii 15. Iulii 1646. ORdered by the Lords in Parliament assembled That none shall speak with John Lilburn now a prisoner in the Tower of London but in the presence and hearing of his Keeper And that when he shall desire to take the Ayre within the Tower his Keeper shall constantly goe with him forth and back and stay with him till he return to his Lodging and that if his wife desire to come to him she shall reside with him and not go in and out during his imprisonment in the said Tower And lastly it is Ordered That this restraint of speaking with the said Lilburn shall be taken off when he shall give good Bayle to this House not to contrive write or publish any scandalous or libellous Pamphlets or Papers against both or either of the Houses of Parliament Die Mercurii 16. Septem 1646. IT is this day Ordered by the Lords in Parliament assembled That the Lieutenaut of the Tower of London his Deputy and all others imployed him shall permit and suffer the wife of Lieutenant-Colonell Iohn Lilburn to come to him and reside with him when and as often as he shall desire any former Order of this House notwithstanding Iohn Brown Cler. Parliamentorum We will not say their Lordships are unjust in this Sentence yet we hope it shall not be accounted scandall to them if we say and make it appear that they have erred therein both in manner of proceeding and in substance of matter or point of jurisdiction both of the person and cause for we do presume that their Lordships will not presume an infallibility of Judgment it being a quality incompatible to or with any sublunary creatures and wee finde by our bookes of 21. E. 3. f 46. that a Parliament may and hath erred And first we shall declare their Lordships errour in their manner of proceeding against this worthy Patriot wherein we shall observe That the 10. of Iune he was summoned to attend their Lordships in their house The 11. of Iune he appeared and was then committed by their Lordships to Newgate The 16. of the same moneth he appealed to the Right Honourable House of Commons The 22. their Lordships sent to the Keeper of Newgate to bring him to their Bar And thereupon the 43 day he was committed close prisoner to Newgate being brought by the Keeper of Newgate where he remained close prisoner till the 16 of Iuly At which time his Charge was brought into the Lords House and not before Wherein we are first to note that he was summoned and committed a moneth before his Charge brought in and after his appeal and for that cause made close prisoner 18. dayes before any Charge recorded against him All which proceedings are erroneous and principally in these two points First because he was summoned before his Charge was recorded for regularly both in Law and Equity the Declaration or Bill ought to be filed or recorded before any Writ or Processe ought to issue against the Defendant or Party accused either in civill or criminall causes and the Writor Processe ought to contain the matter of the Declaration or Bill as in a Writ of Right These words Quid clamat tenere import a Count or Declaration recorded so a Writ of Warrantia Diei contains the substance of the Count in a Monstraverunt the Plaintiffs title is set forth by the Writ Nay in every Writ at Common-Law the Writ doth by these words ut dicitur or by some other Emphaticall word contained in the body of the Writ import that a Declaration or Count is filed registred or recorded before the Writ doth issue and this appears clearly in every Writ set forth by the Register and Fitzherberts Natura brevium Nay every English Bill either in Chancery Exchequer or Star-Chamber doth pray that Processe of Sub-paena be awarded against the Defendant which proves that processe ought not to be awarded against any man out of any Court till his charge bee recorded against him in the same Court If this was so in the Justice of the Star-Chamber in criminal causes we hope their Lordships will not condemne it as an Injustice in themselves to follow the same Rules of Right Reason Law and Equity Secondly their Lordships proceedings against him after his Appeal made to the honourable house of Commons were void in Law for by the Appeal to the proper jurisdiction the Lords were outed of their jurisdiction or Connusans of the Plea sublata causa tollitur effectus the Cause being removed by the Appeale their judgment thereby was determined or at least suspended being but the effect of the cause before them till such time as the Appeal is determined the Appeal being a supersedas to their Lordships further legall proceedings in the same cause and wherein they ought not to have proceeded without the privity licence and direction of the house of Commons and therefore all their proceedings since Mr. Lilburns Ap. peal presented to and accepted by the house of Commons are Coram non judice and therefore void and erroneous We shall not deny the Lords house to be a Court of Justice and that of Record too and of the highest degree in the Kingdom co-operating with the honourablt House of Commons but when they are distinct and apart in their severall operations and judgments we do conceive that they neither have a legislative nor unlimitted power of judicature in themselves neither can they proceed to determine any thing out of the way of the known Lawes by any arbitrary or discretionary Rules where there is a known Law in the case Sir Edw Cook doth well set forth the distinct powers of Judicatures of both houses in his 4. part of Institutes p. 23. It is to be known saith he that the Lords in their house have power of Judicature and both Houses together have power of Iudicature which is thus to be understood That the Lords have power of Iudicature over their Members alone viz. their Peers the Nobility of England that sit in the Lords House The Commons have power of Iudicature over all the Commons of England by themselves alone and the Lords and Commons joyning have power of Iudicature over both Peers Lords and Commons That this is true is manifest by the Lord Dacres case p. 26 H. 8. reported by Iustice Spilman where it was resolved that a Noble-man of Parliament cannot wave his tryall by his Peers and put himselfe upon the tryall of the Country for by the Statute of Magna Charta c. 29 every
and are like Foxes but are not Foxes These Jackals they follow the prey close at the heeles and hunt it till it be weary The greater beast followes after grunting at a distance When these Jackals have wearied the prey this counterfeit Lion comes and seises upon it and fills his panc and leaves the rest to be devoured by the lesser Whippets and between the one and the other there is no harmlesse beast that is not wholly eaten up being once seised on Just so is the poore prisoners case And we shall observe this further that as the Divell when hee tempted our blessed Saviour as you may read Matth. 4. 6. could cite this part of the Scripture Cast thy selfe down for it is written He shall give his Angels charge over thee But concealed another part of the Scripture which made against his ends to wit It is written Thou shalt not tempt the Lord thy God So deales this Lieutenant or Grand Goaler West with his prisoners for all that makes against his title to his fees he leaves out in his allegation to his prisoners of which that he may not plead ignorance hereafter wee shall tell him his pretended title to these fees In the time of Sir Allen Apsley much about 21. yeares since when he was Lieutenant of the Tower there were divers prisoners in the Tower that were poor and lay upon his hands for maintenance of which hee informed the then Lords of the privie Councell and petitioned that he might be allowed competency for their maintenance out of the Kings Exchequer The Lords according to law ordered that he should have 3. l. a week with increase according to their qualities allowed for each prisoner to maintain them in diet for they being the Kings prisoners were by law to be maintained by the King Sir Allen Apsley having procured this order and some of his Successors after him did contract with some of the Warders or Victuallers in the Tower to diet those sometimes at 30. s. per week sometimes at 20. s. per week sometimes at 35 s. a week as they could agree whereby Sir Allen Apsley put up into his purse 30. s. a week or more or lesse upon allowance of every prisoner and had his full pay out of the Kings Exchequer This was entred into their Bookes as a gain to them And being grounded upon a Cheat is now become a president of future extortion being confirmed by a Goalers Prescription of 21. yeares But wee would have them know that if every thing that hath been practised 21. years bee lawful they may as well goe to Suiters-hill and there take purses as to demand those fees Besides we desire them to take notice that by this Parliament the foundation of this pretended duty is taken away by that Act of Parliament which takes away the power of the Councell-boord But wee have done with the pretence of their fees wee now come to shew that this Office of Gentleman Goaler is a new erected office and a grievance to the subject being created within time of memory and consequently no fees due to him though he pretend to a fee of 50. s. at the prisoners going away For this Officer one Yates to tell the truth is but the Lieutenants man and if he be a Gentleman Goaler it is to be doubted he is a better man then his Master for we make a scruple Whether a PORTER of a Colledge in Bishopsgate-street can beget a Gentleman But whatsoever he be being of an old Yeoman of the Guard become a young Gentleman Goaler he knowes how to lick his fingers and make profit out of the plague it selfe For wee could tell you that when a Gentleman the last yeare a prisoner was closely locked up and the plague round about him and in danger to be infected desired him to speak to the Lieutenant that he might be removed he brought him word that unlesse he would give him ten pound hee could not be removed The Gentleman made answer that hee had not so much money but all that he had he would give him if he would procure him to be removed The summe agreed was 20. s. which this Gentleman Goaler took and put in his pocket and never came at him more in ten weeks space let the plague take his course with the poore prisoner And that albeit the Gentleman complained to the Lieutenant of this unjust and fraudulent dealing and did desire that either he might be compelled to make restitution or otherwise to give it to the poore or into the Warders Box at Christmas yet the Gentleman could obtaine neither Here is Mulus mulum scabit again We could tell you that the prison lodgings have been and are let out to prisoners at 20. l. some more some lesse per annum We could tell you of 10. l. taken of a Gentleman that was sick and made a close prisoner for to have liberty to walk in fresh aire out of his chamber some 4. or 5. times the length of a Cannon We could tell you another that by no Rule of Instruction or Warrant was to be kept close prisoner and yet was so almost a yeare because he would not give 10. l. to walk the length of a Malt-pole We could tell you of a Gentleman of quality of above 70 yeares of age after hee had his enlargement from the Honorable House of Commons was detained in close prison 20. weeks because he would not pay such fees as were demanded and a demand of above 330. l. made of him for these pretended extortions and unjust fees Nay a boord nailed up before his window to prevent him for taking any fresh aire and a Sentinell set at his doore to keep him in his chamber A new way of these monstrous Tyrants to excise the Aire We could name a prisoner that for six moneths together in the Tower had a Sentinel kept at his door to keep him in his lodging yea when he was sick and had contracted that sicknesse and infirmity by a tedious close imprisonment We could tell of the prisoners Beere and Wood stopped and their servants kept from them because they would not pay such fees as were demanded And when the prisoners sent to the Lieutenant to have their Beere and Firing his answer was That he wanted money HERE ARE THE FOURE ELEMENTS EXCISED TO THE POORE PRISONERS Nay wee could tell you of some that were shut up for eating of Venison and to make their peace must drop something a parcell of 20 l or something else For we must keep our fingers in use Nay there is but few of these ravening creatures but he hath all the inventions his wit can reach to excoriate their prisoners We could tell you how prisoners are valued Some have been valued at 5. s. a week and diet Anotheâ— at diet only a third hath been offered to be exchanged with 20. s. boot Nay we could tel yon of a prisoner that was made in joincture to a Warders wife who contracted by
as Guardians of our Birth-rights and most powerfull Tribunes of the peoples liberties and who have made so many pious and feeling Declarations of their mindes now in print concerning our by-past thraldome with most solemn Protestations and execrations upon themselves of their serious intentions to maintain the lawes and liberties of the free-born Subjects of England and that SALVS POPVLI shall be to them their SVPREMA LEX Yet out of our dayly feeling of our ensuing miseries a cleere fore-sight of a future and speedy ruine of this present State which above all thingsunder heaven we desire to advance if it be not by the wisdome of these our most honoured Patriots prevented doe most humbly addresse our informations of the grievances present evils and advices for reformation of the same to our most renowned Trustees not doubting but they in their profound wisdome will both receive them benignely prudently ponder them and seriously and timely endeavour to prevent the growing mischief by their indulgent and serious care and circumspection To you then Oh! you most honourable Tribunes of the People preservators of the Common-wealth and chief Guardians of our Laws Liberties we apply our selves as next under God the surest Instruments of our earthly felicity And we do most humbly implore beseech you to free us from all lordly illegall sentences and tyrannicall powers and executions whatsoever wee intreat and exhort you to hear and determine Lieut. Col. John Lilburns appeale to you the Commons representative of England from the Lords house we will not presume to direct you whaâ— is fit to be determined in it for we neither can nor will distâ—ust either your Judgment or Justice but this we humbly besâ—ech you to consider that in your judgment upon him shall be involved the liberty of the whole Commons of England and think it not a Trouble to your selves to be importunedin this particular but give speedy dispatch therein to your Petitioners since that a Republique that is well ordered ought to give easie accesse to those that seek Justice by publique meanes In the next place our desires are that since this great inrode upon our liberty is occasioned by an Impeachment or Accusation made in your house against Col. King which yet there depends undetermined that you would hear and determine that Impeachment and bring the Offendor to condigne punishment and not only Col. King but all others whom you haue trusted in this late War and have fayled in their trust What though the war seeme to be at an end and you have effected your desires and these men have at some time stood you instead and at first proved faithfull and were strongly assistant to you yet if afterwards they proved corrupt or negligent or falsified there trust should they therefore be pardoned put the case a new war should break out and you should have need of men think you that those you shall hereafter employ will not take courage by the impunity of these that are now accused to deceive and betray you when they finde opportunity Or do you imagine that these men can ever be faithfull to you We give you these Reasons that they cannot First because they are at least under a suspition and if they are innocent why have they been so long kept from clearing themselves If they be acquitted and innocent persons it is an injury they will never forgive you and if they be found guilty you will never trust them But some will say that they have been good members and done good service therefore they ought to be pardoned To which we answer Let them be first tryed and if they are found guilty use your discretions in mercy toward them but withall remember that the wisest and best governed States in the world never yet pardoned any man for a notorious crime committed against the Common-wealth for any good services before done to it This is manifest by many examples especially in the Romane State The first we will present you with is that of Horatius where the case is thus Tullus the Roman King and Metius the Alban King made an agreement between them that three of the Horatii Romans and three of the Curatii Albans should fight for the Dominion of their Countries and that that people whose three Champions vanquished the others should bee Lords of the vanquished Nation The three Horatii got the victory and but one of them survived in it all the Curatii were slaine Horatius that survived and was Victor returning to Rome met his sister the Widow of one of the Curatii lamenting the death of her husband killed her This fact was adjudged so heynous that notwithstanding the victory he obtained for the Romans they brought him to judgement Manlius Capitolinus notwithstanding that hee had valiantly defended the Capitoll of Rome against the invading Gaules and by his vertue delivered the Citie of Rome from imminent danger was notwithstanding his good deserts for a sedition he endeavoured to raise in Rome through envie to Furius Camillus thrown headlong down from that Capitoll which he to his great renown had formerly defended So we in Machiavel his discourses upon Liv. l. 1. cap. 23. 24. 26. More examples we might find in the Roman State as those of Coriolanus Martius Livius Aemilius and Scipio Africanus of whose Stories you may read at large in Livies Decades We read likewise of Themistocles the Athenian Generall and who was a chiefe meants to augment the glory of that State by the great defeat he gave to the Persians at Salamis and elswhere having committed offences against that Government had the punishment of Ostracisme which was banishment for ten yeares inflicted upon him Alcibiades likewise after many notable victories obtained for that State was notwithstanding for insolencies as they conceived committed towards it twice banished the last time into perpetuall banishment These two examples we find in the State of Athens We might produce many more of ancient time of all the States of Greece which for Brevity sake we omit Only mentioning some of latter times in our own neighbourhoods As that of Charles the Emperour who for offence given ruined Ferdinandus Cortes that subdued to his obedience and use the mighty rich kingdomes of Mexico Jucatan and other parts of the West Indies Neither did Marshal Byron for all his service done to King Hen. 4. of France find at his death any merits in those services done to his offended Prince Nor Barnevelt in his conspiracy against the Prince of Orange and State of Holland though he had been eminent for former services done them against the Kingof Spain Nor in our own Kingdom could Sir John Hotham and his sons former deserts save their lives which they lost for being false to the trust By which examples we conclude That never any Republick well ordered cancelled the faults of their subject swith their good deserts Therefore as Clemens Edmunds observes upon Caesars Commentaries p. 174. It more importeth a
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
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