Note: This is part of the Leveller Collection of Tracts and Pamphlets.
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T.123 [1647.12.14] [Signed by Several, attributed to John Lilburne], Englands Freedome, Souldiers Rights (14 December 1647).
[Signed by Several, attributed to John Lilburne], Englands Freedome, Souldiers Rights: Vindicated against all arbitrary unjust Invaders of them, and in particular against those new Tyrants at Windsore, which would destroy both under the pretence of Marshall Law. Or, The just Declaration, Plea and Protestation of William Thompson, a free Commoner of England, unjustly imprisoned at Windsore. Delivered to his Excellency Sir Thomas Fairfax, and that which is called his Councell of Warre, the 14 of December, 1647. Unto which is annexed his Letter to the Generall, wherein the said Plea was inclosed. Also a Petition of the rest of his Fellow-Prisoners to his Excellency.
This tract contains the following parts:
14 December 1647.
TT1, p. 577; Thomason E. 419. (23.)
May it please your Excellency,
I am by birth a free Commoner of England, and am thereby intailed or intituled unto an equall priviledge with your selfe, or the greatest men in England, unto the freedome and liberty of the Lawes of England, as the Parliament declares in their Declaration of the 23. of October, 1642. 1 part Book Decl. pag. 660. And the 29. Chap, of Magna Charta expresly saith, That no man shall be taken or imprisoned, or be disseised of his Freehold or Liberties, or free customes, or be outlawed or exiled, or any other wayes destroyed, nor past upon nor condemned, but by the lawfull Iudgement of his Peers (or equalls) and that by due course, or processe of the Law of the Land,1 which expresly saith, that no man shall be taken or restrained of his liberty, by petition or suggestion (made unto whomsoever in authority) unlesse it be by indictment or presentment of good and lawfull men where such deeds be done: and that no man whatsoever be put to answer (any crime whatsoever) without presentment before justices or matter of record, or by due processe and Writ originall, according to the old Law of the Land: and if anything from henceforth be done to the contrary, it shall be void in law, and holden for2 error.
Therefore Sir, for you who are a Generall of an Army, and other of your Marshall Officers, who are no Civill Court of Justice, nor authorized with the least legall power in the world to administer Justice, and execute the Law of the Land, upon, or unto any of the Commoners of England, to dare or presume to restraine, imprison, trie or meddle with me, as you have done, who am in no other capacitie in the world, but barely and altogether as a Commoner of England, is the height of arbitrarie tyrannie, injustice and3 oppression, and an absolute destruction of the very fundamentall Lawes of England, the bare endeavouring of which cost the Earl of Strafford his head. And what the doome of him is that destroyes the fundamentall Lawes of the Land, I shall give you out of the words of your own friend Mr. St. John, in his Argument of law concerning the Bill of Attainder of high Treason of Thomas Earl of Strafford, at a Conference in a Committee of both Houses of Parliament, printed by G.M. for John Bartlet at the signe of the gilt Cup neere S. Austins Gate in Pauls Church-Yard 1641. who in the 70. page thereof saith. That the destruction of the Lawes dissolves the arteries & ligaments that hold the Body together: he that takes away the Lawes, takes not away the allegiance of one Subject alone, but of the whole Kingdome: it was (saith he) made treason by the Statute of the 13. Eliz. for her time, to affirme, that the Lawes of the Realms do not bind the descent of the Crowne; no Law, no descent at all: No Lawes, saith he, no Peerage, no ranks or degrees of men;4 the same condition to all. Jt’s treason to kill a Judge upon the Bench, this kills not the Judge, but the Judgement. And in pag. 71. he saith, Jt’s Felonie to imbezell any of the Judiciall Records of the Kingdome; this, viz. the destruction of the Law, sweeps all away, and from all.
It’s treason to counterfeit a twenty shilling piece, here is a counterfeiting of the Law, we can call neither the counterfeit, nor the true coyne our owne.
It’s Treason to counterfeit the great Seale for an Acre of Land, no property hereby (viz. the destruction of the Law) is left to any Land at all: nothing Treason now, either against King or Kingdome, no Law to punish it.
And therefore I advise you as a friend to take heed that you go no further on in your illegall, arbitrary, tyrannicall and Law-destroying practises with and towards me, least when for your owne lives you claime the benefit of the Law, you be answered in the words of your foresaid friend in pag. 72. “That he in vaine calls for the help of the Law that walks contrary unto Law, and from the Law of like for like; hee that would not have others to have Law, why should he have any himselfe? why should not that be done to him, that himselfe would have done to another? It is true, (saith he Ibid.) we give Law to Hares and Deers, because they be beasts of chase, but it was never accounted either cruelty or foule play to knock Foxes and Wolves on the head as they can be found, because these be beasts of prey: the Warrener sets traps for Poulcats and other vermine, for preservation of the Warren.
And in pag. 76. hee saith, in the 11.R.2.. Tresilian, And some others attainted of Treason for delivering opinions in the subversion of the Law, and some others for plotting the like.5
But if you shall object, that you deale with me as you are a Generall and Officers of an Army by Marshall Law, for endeavouring to make mutinies or tumults in your Army, or by blasting and defaming your reputations, and so drawing your Souldiers from their affection and obedience unto you.
I answer in the first place, there can in this Kingdome be no pretence for Marshall Law, but when the Kingdome is in a generall hurly-burly and uproare, and an Army or Armies of declared enemies in the Field, prosecuting with the sword the destruction of the whole, and thereby stopping the regular and legall proceedings of the Courts of Justice from punishing offenders and transgressors.
But now there being neither Army nor Armies of declared enemies in the field, nor no Garrisons in the possessions of any such men, nor no generall hurly-burlies and uproares by any such men in the Kingdome, but all such are visibly subdued and quieted, and all Courts of Justice open and free to punish offenders and transgressors; and therefore even to the Army it selfe and the Officers and Souldiers therein, there is no reason or ground for exercising of Marshall Law, much lesse over Commoners that are not under the obedience of the Army, which is my cause.
And that in time of peace, there neither is, nor can be any ground of exercising and executing of Marshall Law; I prove out of the Petition of Right, which was made in the third yeare of the present King, and is printed in Pultons Collection of Statutes at large, fol. 1431.1432. which expresly saith, that by Authoritie of Parliament, in the 25. yeare of the Reign of King Edward the third, it is declared and enacted, “That no man should be forejudged of life or limb against the forme of the great Charter and the Law of the Land, and by the said great Charter, and other the Lawes and Statutes of this Realme, no man ought to be adjudged to death, but by the Law established in this Realme.6
“And whereas no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the Lawes and Statutes of this your Realme: Neverthelesse of late divers Commissions under your Majesties great Seale have issued forth, by which certaine persons have been assigned and appointed Commissioners, with power and authority to proceed within the land, according to the justice of Martiall Law, against such Souldiers and Mariners, or other dissolute persons joyning with them, as should commit any murder, robberie, felonie, mutinie, or other outrage or misdemeanor whatsoever, and by such summarie course and order, as is agreeable to Martiall Law, and as is used in Armies in time of Warre, to proceed to the triall and condemnation of such offenders, and them to cause to be executed and put to death according to the Law Martiall. By pretext whereof your Majesties Subjects have been by some of the said Commissioners put to death, when & where, if by the Lawes and Statutes of the land they had deserved death, by the same Lawes and Statutes also they might, and by no other ought to have been judged & executed.7 And also sundry grievous offendors, by colour thereof claiming an exemption, have escaped the punishment due to them by the Lawes and Statutes of this your Realme, by reason that divers of your Officers and Ministers of Justice have unjustly refused, or forborne to proceed against such offendors according to the same Lawes and Statutes, upon pretence that the said offendors were punishable onely by Martiall Law, and by authoritie of such Commissioners as aforesaid. Which Commissions, and all other of like nature, are wholly and directly contrarie to the said Lawes and Statutes of this your Realme.
Therefore Sirs, if you have any care of your own heads & lives, (though you have none of the Liberties and Freedoms of England) I again as a friend advise you, to take heed what you doe unto me anie further in your illegall, arbitrarie and tirannicall way that hitherto you have proceeded with me; for largely understand that Canterbury and Strafford were this Parliament questioned for their arbitrarie and tirannicall actions that they did and acted manie years before, and the Lord Keeper Finch was by this Parliament questioned for actions that he did when he was Speaker of the House of Commons in the third of the present King An. 1628. and forced to flie to save his head.
In the second place I answer, that if since the warres ended, it was or could be judged lawfull for your Excellency and your Councell of Warre to execute Marshall Law: yet you have divested your selfe of that power upon the 4. and 5. of June last at Newmarket Heath, you owned the souldiers and joyned with them, when they were put out of the States protection and declared enemies and further associated with them by a mutuall solemne ingagement, as they were a Company of free Commoners of England to stand with them according to the Law of Nature and Nations,8 to recover your owne and all the peoples Rights and Liberties; the words are these: We the Officers and Souldiers of the Army subscribing hereunto, do hereby declare, agree and promise to and with each other, that we shall not willingly disband nor divide, nor suffer our selves to be disbanded nor divided, untill we have security; that we as private men, or other the free-borne people of England, shall not remaine subject to the like oppression, injury, or abuse, as have been attempted.9
Hereby it appears, that from this time you and the souldiery kept in a body and so were an Army, not by the States or Parliaments will, but by a mutuall agreement amongst all the Souldiers, and consequently not being an Army by the Parliaments wills; they were not under those rules of martiall Government which were given by the will of the Parliament: and your Excellencie could no longer exercise any such power over them, as was allowed you by those Martiall Laws; nay, the Souldiers keeping in a body, and continuing an Army only by mutuall consent, did by their mutuall Agreement or Ingagement, constitute a new kind of Councell, wherby they would be Governed in their prosecution of those ends for which they associated, and made every Officer incapable of being in that Councell, which did not associate with them in that Ingagement. The words of the Agreement or Ingagement are these: “we do hereby declare, agree, and promise, to and with each other, that we shall not willingly disband, nor divide, nor suffer our selves to be disbanded or divided without satisfaction in relation to our grievances and desires heretofore presented, and security that we as private men or other the free-born people of England, shall not remain subject to the like oppression and injury as hath been attempted, and this satisfaction and security to be such as shall be agreed unto by a Councell to consist of those generall Officers of the Army, who have concurred with the Army in the premises, with two Commission-Officers, and two Souldiers to be chosen for each Regiment, who have concurred and shall concurre with us in the premises and in this Agreement.
So that your Excellency is so far from having a power to exercise the old Martiall Discipline, that you would have been no Officer nor Member of the Councell appointed to govern them, unlesse you had associated with them, and by that Association or mutual Ingagement, the Souldiers were so far from allowing to their Generall, who ever it should have been (for at that time it was uncertain) the power of exercising the old Martiall Discipline, that according to the Ingagement, no Officer or Souldier can be rightly Cashiered unlesse it be by the Councell constituted by that Ingagement: so that your Excellencie by your own Ingagement have put a period to your power of exercising your old Martiall Discipline, and whatsoever Discipline shall appear to the Army to be necessary, must be constituted by the mutuall consent of the Army or their representatives, unlesse you and they will disclaim the Ingagement at Newmarket, and those principles upon which you then stood, and yeeld up your selves to the Parliaments pleasure, as their hirelings, to serve their arbitrarie power, like Turkish Janisaries.
In the third place I answer, that it is against reason, law, conscience, justice and equitie, to subject me at one and the same time, or any other free Commoner of England, under the sting and power of two distinct Lawes, and such a bondage as is insupportable, and such a snare of intanglement, that no mans life whatsoever can be safe or secure under it, that I shall be liable to be questioned and destroyed by the common Law of the Kingdome, and then be at the wills of mercenarie Turkish Iansaries, (in case the common Law will not reach me) to be questioned and destroyed by an unjust arbitrarie Marshall law; and if it can be justly proved against me that I have made any tumults, the Law and the ordinary Courts of Justice are open, by which and by no other rules and proceedings I ought to be tried, and if it be said or can be proved, that I have belied or scandalized the General), to the taking away of his good name, &c. yet scandalum Magnatum is not to be tried by Martial Law, nor yet either by the House of Commons, or the House of Lords, but only & alone (now the Star Chamber is down) by an Action at Common Law,10 by a Jurie of my equalls, and no where else, it being a Maxime in Law, That where remedy may be had by an ordinary course in Law, the party grieved shall never have his recourse to extraordinaries:11 And besides, for you to proceed with me, and to be both Parties, Jurie and Judges, is a thing that the Law abhorres.12
In the fourth and last place I answer, that the Parliament it selfe, neither by Act nor Ordinance can justly or warrantably destroy the fundamentall liberties and principles of the common Law of England, it being a Maxime in law and reason both, That all such Acts and Ordinances are ipso facto null and void in Law, and bind not at all, but ought to be resisted and stood against to the death.
But for them to give you a power by Marshall Law, or under any other name or title whatever, by your arbitrary tyrannicall wills without due course and processe of Law, to take away the life or Liberty of me, or any free Commoner of England whatsoever, yea, or anie of your owne souldiers in time of peace, when the Courts of Justice are all open and no visible declared enemy in Armes in the Kingdome readie to destroy it, is an absolute destroying of our fundamentall Liberties, and a rasing of the foundation of the Common-Law of England.13
Ergo, such a power of arbitrary Marshall Law, cannot justly by the Parliament in time of peace, &c. be given unto you, nor (if it were) be justly or warrantably executed by you.
And besides, both Houses themselves by an Ordinance (unlesse they alter the whole Constitution of this Kingdome) can take away the life of no free Commoner of England whatsoever, especially in time of peace.
And therefore that which is not within their own power to do, they cannot by an Order or Ordinance grant power to Sir Thomas Fairfax &c. to do, it being a Maxime in nature, That beyond the power of being there is nor can be no being. But it is not in the power of the Parliament, or the two Houses, or the House of Commons themselves, as the present Constitutions of this Kingdome stands, either by Order or Ordinance to take away the life of any free Commoner of England.14
Ergo, they cannot by an Ordinance or Order, especially in times of peace, give power to Sir Thomas Fairfax by Marshall Law, (unlesse they totally alter the Constitutions of the Kingdome) to take away the life or lives of any free Commoners of England, (which all Souldiers are as well as others15) and therefore it is absolute murder in the Generall and the Councell of Warre, now to shoot to death, hang or destroy any Souldier or other Commoner whatever by Marshall Law.
And therefore I doe the third time as a friend advise you, to cease your illegall, arbitrarie, tirannicall Martiall Law-proceedings with me that am no Souldier, and so not under the least pretence of your Martiall Jurisdiction, least in time to come you pay as deare for your arbitrarie illegall proceedings with me, as Sir Richard Empson and Mr. Edward Dudley Justices did, who as Sir Edward Cooke declares in his 2. & 4 part of his Institutes, were very officious and ready “to execute that illegall Act of Parliament made in the 11.H.7. chap. g. which gave power unto Justices of Assize, as well as Justices of the Peace (without anie finding or presentment by the verdict of twelve men, being the ancient birth-right of the Subject) upon a bare information for the King before them made, to have full power and authoritie by their discretions to hear & determine al Offences or contempts committed or done by anie person, or persons against the form, ordinance, effect of anie Statute made and not repealed, &c. by colour of which act of Parliament, shaking (saith he) this fundamentall Law (viz. the 29. Chapter of Magna Charta) it is not credible what horrible oppressions and exactions, to the undoing of infinite numbers of people, were committed by them, for which (though I cannot read they shot anie man to death, and though they had an expresse Act of Parliament to beare them out, abundantly lesse questionable “then an Ordinance for exercising Martial Law) they were both indicted of high treason both by the common Law and Act of Parliament, and in the 2. yeare of Henry 8. they both lost their heads.16
Therefore, from all the premises by way of conclusion. I draw up this protestation against you, that by the Laws and constitutions of this Kingdome, you have not the least Indicative power in the world over me; therefore, I cannot in the least give you any Honour, Reverence or Respect, either in word, action, or gesture: and if you by force and compulsion compell me again to come before you, I must and will by Gods assistance keep on my Hat, and look upon you as a company of murderers, Robbers and Theives, and doe the best I can to raise the Hue and Crie of the Kingdome against you, as a company of such lawlesse persons, and therefore if there be any Honor, Honesty and Conscience in you, I require you as a free-born English man, to doe me Justice and right, by a formall dismissing of me, and give me just reparation for my monethes unjust imprisonment by you, and for that losse of credit I have sustained thereby, that so things may goe no further; or els you will compell and necessitate me to study all waies and meanes in the world to procure satisfaction from you, and if you have any thing to lay to my charge, I am as an Englishman ready to answer you at the common Law of England, and in the mean time I shall subscribe my selfe
From my arbitrary and most illegal imprisonment in Windsore, this 14. Decemb. 1647.
Your servant in your faithfull discharge of your dutie to your Masters (the Commons of England) that pay you your wages,
To his Excellency Sir Thomas Fairfax Knight, Captain-Generall of the Forces in the Nation for Imperiall Justice and Libertie, these present.
May it please your Excellency,
I Here present unto you a Declaration and Protestation against the illegall and unjust proceedings of your Counsell of Warre against me, I being a free Commoner of England, as in the presence of the just God, before whose Tribunall both you and I shall stand to give an Account of all ungodly deeds committed against him. And so I rest,
Decemb. 14. 1647.
Your Excellencies servant, if you are a true servant to the most
excellent God for justice and righteousnes in the earth, without
respect of persons.
To the right Honourable his Excellency Sir Thomas Fairfax Knight, Captain Generall of all the forces raised in the Kingdome of England.
The humble Petition of some of your Excellencies Officers and Souldiers, being under the custody of the Marshall Generall.
THat whereas there are mis-presentations of the intentions of the late Agents of the Army and their adherents, by men of corrupt minds, who would make all the end of your own and your Armies noble and valiant Atchievements (under the power of God) fruitlesse; and would destroy Justice and righteousnesse from amongst men; and instead of common good, and equall distribution of justice, would advance a particular selfish interest: and to accomplish their unworthy selfish ends, amongst many other scandals cast upon the late Agents, they have blazed abroad that they intended to murther the King, and that one of them should affirm it was lawfull: And wheras this was reported by one L. C. Henry Lilburne; it being altogether most abominable in our eyes, and detracts from the purity and righteousnesse of our Principles; tending only to make us odious to the People, for whose good alone we have run not only all former, but also these late hazards.
Wee therefore desire that the said L. C. Hen. Lilburne may be speedily sent for to testifie upon Oath (as in the presence of God) who used those words, where those words were used, and when: and what in particular the words were; That so, such a person may come under a publique cognizance, and your Excellencies faithfull servants and souldiers may free themselves and others from such aspersions.
And your Petitioners shall ever pray, &c.
Will. Eyers. John Wood. John Crosseman.
Will. Bray. George Hassall. Tho Beverly.
Will. Prior. Will. Everrard. Will. Thomson Commoner.
[1 ] See Sir Ed. Cooks Exposition hereof in his 2. part Institut. fol. 46, 47, 50, 51.
[2 ] See the 5. Ed. 3. 9. & 25. Ed. 3. 4. & 28. Ed. 3. 3. & 37. Ed. 3. 18. & 42. Ed. 3. 3. and the Petition of Right in the third of the King and the Statutes that abolished the Starre-Chamber and Ship-money, made this present Parliament; and Lievtenant-Colonell Lilburnes Booke called The Resolved Mans Resolution, p. 2, 3, 8, 9. and his Grand Plea against the Lords, p. 7, 8, 9.
[3 ] VVell saith Sir Edward Cooke in the 2. part of his Institutes fol. 48. that every oppression against Law, by colour of any usurped authority, is a kind of destruction: for when any thing is forbidden, all that tends to it is also forbidden: and it is (saith he) the worst oppression that is done by colour of justice. See also Lib. 10. fol. 14. in the case of the Marshalsea.
[4 ] And therfore you, with your dealings with me, that am meerly a free Commoner of England, and so not in the least under your Marshall Discipline (but solelie and onelie under the discipline of the knowne, declared and established Lawes of England) by your arbitrarie tirannicall actings upon me, have absolutelie as much as in you lies, destroied the fundamentall Lawes of England, and therfore are as absolute Hedge-breakers and Levellers as ever were in this Kingdome.
[5 ] Read also to this purpose Mr. John Pyms Speech against the Earl of Strafford, the 12. of April 1641. printed by John Bartlet, but especially p. 126.96.36.199.188.8.131.52.
[6 ] See the 9.H.3.29.5.Ed.3.9. & 25.Ed.3.4. & 28.Ed.3.3.
[7 ] Yet it is very observable, that at the very time when this Martiall Law complained of was executed, the King had warres with France, a forraigne enemy, but there is no such thing now; and therefore the Army, or the grand Officers thereof have not the least shadow or pretence to execute it in the least, or to deale with me a free Commoner, as they have done.
[8 ] See the late Plea for the Agents.
[9 ] See the ingagement in the Armies Book of Declarations, pag. 25.26,27,28.
[10 ] As is cleare by the Statutes of 3. Ed. 1. 33. & 37. Ed.3.18. & 38.Ed. 3.9. & 42.Ed. 3.3. & 2.R.2.5. & 12.R.2.11. 5.part Cooks Reports, pag. 125. & 13.H.7.Kelway. & 11.Eliz. Dier 285. & 30. Assize pla. 19. & Liev. Col. Lilburnes Grand Plea of 20. Octob. 1647. pag.7.8.
[11 ] See Vox Plebis pag. 38. & Lievt. Col. Jo. Lilburnes Anatomie of the Lords Tirannie, pag.10.
[12 ] See 8.H.6.fol.21. & 5.Eliz. Dier 220. & Dr. Bonhams Case, 8. part of Cooks Reports, & Lieut. Col. Jo. Lilburnes grand Plea, pag.10.
[13 ] But besides all this I doe confidently believe, that the Parliament never gave power unto the Generall since the Wars ended, to execute Marshall Law; neither doe I believe that some chiefe Executors of Marshall Law have any legall Commission from the Parliament, who never that I could heare of, ever gave power unto the Generall of himselfe to make generall Officers: and besides, all the Parliament-men that are Officers in the Army were (as I have been groundedly told formerly) taken off by an Ordinance of Both houses, which was never replealed since.
[14 ] See Sir Ed. Cooks 2. part Institut. fol. 47, 48. & 3. part, fol. 22. & 4. part, fol. 23.25. 48. 291. all of which Bookes are published for good Law to the Kingdome by two speciall Orders of the present House of Commons, as you may read in the last page of the 2. part Institut. see also the Petition of Right.
[15 ] See the Armies Declaration of the 14. June, 1647. Book of their Declarations, pag. 39. and their Letter from Roiston to the Lord Mayor of London of the 10. June, 1647. which the Printer hath neglected to print in their Book of Declarations.
[16 ] See 2. part Instit. fol. 51. & 4. part, fol. 41. 196, 197. but especially read their Jndictment verbatim set downe ibid.fol.198,199.