Note: This is part of the Leveller Collection of Tracts and Pamphlets.
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T.240 [1653.09.26] John Lilburne, An Hue-and Cry after the Fundamental Lawes and Liberties of England (26 September, 1653).
John Lilburne, An Hue-and Cry after the Fundamental Lawes and Liberties of England occasionally written upon the stealing of one of the grand Assertors of Them out of Newgate, by a Party of men on horseback, pretending themselves to be Souldiers, raised and paid by the People of England (not for the Subversion,) but the preservation of the said Lawes and Liberties, &c. Together with some Queries, and brief Resolves, touching the present state of Things, Written for the consolation of the saints now reigning. By a well-wisher to the Saints now reigning. By a Well-wisher to the Saints now reigning on earth, had they had the patience to have staid till the People had chose them, or that Christ the King of Saints above — had setled the Government upon them.
Europe, Printed in a year of Melodius Discord, to the tune of the Cross and the Harp, when the Servants are Princes, and the Masters are Slaves.
26 September, 1653.
TT2, p. 38; E. 714 (1.)
YOU are immediatly upon sight hereof, to make your repair to all suspected places within your several Limits of Jurisdictions, and there to make diligent search and enquiry after a Cabinet of Jewels of inestimable worth and value, which hath been purchased with the Blood and Treasure of our Accestors; and not only to, butwithin these 12 years it hath cost this Nation many millions of Treasure, besides the lives of some hundreds of thousands of English men, whom the world (to succeeding Ages) will admire for their gallantry in the several Battels and Conflicts during the late Destroy in intestine wars, in defence of the said Jewels, heretofore called and known by the Fundamentall Laws and Liberties of England: part of which Laws and Native Rights are contained in Magna Charta, and the Petition of Right; the excellency of which Law, might English-men enjoy the benefit of them, as all along this War they have been promised, would make English men the happiest Nation in the world, notwithstanding there are many essentiall things concerning the Priviledges and Immunities of the good people of England, which is not contained in the said Magna Charta, and Petition of Right; yet so excellent are those things contained in those Laws, that were the people suffered to enjoy, which is their Right by Law, then would England be the freest people in the world: This is mentioned, because the said Laws were ratified and confirmed by divers Kings of this Nation, and in particular by the late King Charles, whom the late Parliament put to death for a Tyrant, for violating the said Laws, thereby degenerating from a King into a Tyrant, as all Supream Magistrates do that cease to rule by known Laws and Rules, meerly by his Arbytrary Will and Power.
And here by the way it would be enquired, whether the Name of a King can make the people Slaves, or whether the Name of a Parliament, though legally chosen, make the people free, seeing that Parl. that are legally called to the Supream Trust, may betray their Trust, and so degenerate into Tyrants, as well as Kings, and so the Tyranny be more absolute, and more evil then that of Kings, considering that Evil or Tyranny in a Community, is worse then Unity: because that it cannot in Reason be imagined, that one man can possibly contrive so absolute a Tyranny, as where there is a Spirit of Tyranny working in a considerable number of persons in a body, &c. And therefore in your search and inquiry, you are to take diligent notice, whether any person or persons being the peoples servants, viz. being declared by themselves the Parl. of the Commonwealth of England, whether they have by themselves, or their Substitutes, at any time since their coming to the management of supream Trust, any way violated, or endeavoured to violate any of the said Priviledges or Immunities belonging to the good people of England. One special Pearl belonging to the said Cabinet bear these words. No free man shal be taken or imprisoned, or be disseized of his freehold, or liberty, or free Customs, or be out lawed or exiled, or any wayes destroyed, or be past upon, or any way dealt with, but by the Judgment of his Peers, that is, by a Jury of 12 sworn men of the Neighborhood. No man from henceforth shall be attached by any Accusation, nor fore-judged of his life, limb, nor his Lands Tenements, Goods, Chattels, into the Kings or Parliaments hands, against the Form of the great Charter, and the Law of the Land, &c.
From henceforth no man shalbe taken by Petition or suggestion made either to King or Parl. unless it be by Indictment or presentment of good and lawful men, where such Deeds be done in due manner, or by process made by Writ Original at the Common-Law. Nor that none be put out of his Franchises or Freehold unless he be duly brought in to answer, and judged of the same by the Law. And if any thing be done contrary to this Statute it shall be holden for nothing.
Herein may be cleerly discovered the Supremacy and Excellency of the Law of England; wherein is enacted, commanded, and confirmed, That whatsoever should be done contrary to the Law, shall be of no force. Nay further, No man of what estate or condition soever he be shall be put out of Land, Tenement, or taken or imprisoned, or dis-inherited, or put to death, without being called to answer by due process of Law.
By these, and many other such marks, and badges of Liberty you may see in the Cabinet: And because it is more then strongly suspected, that some Grandees pretending to Honesty, and to common Right and Freedom, and upon and by means of the said publike pretences, have inlarged their possessions by the Ruines of the Publique: I say it is upon good grounds suspected, that some of the said Grandees are guilty of endeavouring the subversion of the said Laws and Liberties of England; and instead thereof to introduce an Arbytrary Government. And therefore it is thought fit to leave you, and all the good people of England these following Instructions for your ease and benefit in your said search and Enquiry.
In the first place you are to consider the case of Mr. John Lilburn, Gentleman, what manner of proceedings hath been had against him, since these publique Liberty-pretending Times, viz. Since the Parliament was broken a pieces by Col. Pride, by advice and consent of the General and Councel of Officers, meerly pretending, that Necessity had constrained them to take that course, they knowing no other way to secure the peoples Rights. Now if you look, as you ought to do, upon Mr. Lilburn’s Case, as the Case of every free-born English man, you will find that the people of England, never in the worst of Times, received the like wounds in their Laws and Liberties, as they have done since the said Purge first. Then you may consider the cause of his late Banishment, which was nothing but for doing what in him lay (by Advice) to right a Gentleman greatly wrong’d in his estate, which, in any English mans judgment, deserves no Punishment, much less Banishment.
Secondly, consider the manner of proceeding against him: First, the Business was referred to a Committee to examine, and report to the House, and right or wrong, the House proceeded to vote his Banishment upon the said Report, although many of the said Committee might justly be suspected of Partiality, and greatly to favour Sir Arthur Haslerig’s Cause, and as much to discountenance Mr. Lilburn’s Cause. So that Mr. Lilburn had no manner of legal process, whereby he might make any just defence for himself, which they (I mean his Adversaries) and indeed Adversaries to the just Rights and Priviledges) very well knew he would do, in case it came into any Legal Court where he might have the liberty of Defence: and therefore an Arbytrary Committee must do the work, being both in persons and office fitly qualified for such a purpose; and therefore they bring in their Report, upon which the House proceeded to Vote, as followeth.
Resolved upon the Question, That the Fine of 3000 l. be imposed upon Lieu. Col. Iohn Lilburn, to be said to the use of the Commonwealth, That he be fined 2000 l. more to be paid to Sir Arthur Haslerig for his dammages, and 2000 l. more to be paid to Iames Russel, Edward Winslow, William Mollins, Arthur Squib, Esquires, four of the Commissioners for compounding, that is to say, to each of them 100 l. for their dammages.
Resolved upon the Question, That Lieu. Col Iohn Lilburn be banished out of England, Scotland, and Ireland, and the Territories thereunto belonging, and not to return into any of them upon pain of being proceeded against as a Felon; and in case of such Return, shall suffer death accordingly. Did ever England know the like proceedings against one of its Natives: and therefore I can but wonder at the Kentish mens flattery in their late Petition against Tythes: in the preamble of which Petition they say, That the glory of Christs appearings are eminent in this Change, and that it is the Noon: But what Will that might be that hath such a Noon of Darkness, Hypocrisie, Self-love, Envy, Injustice, and what not that is evil, as you will better perceive, if you consider the cruel and just dealing exercised upon him the said Mr. John Lilburn, both as to the matter and manner of his Banishment, and since his Return. And first as to the manner of his Banishment. Consider that the Law of England judgeth in man before he be heard, as to his Defence; and therefore no Judgment could be legally given in Parl. against him as is pretended, because that before any Judgment can be given in Law against any English man for any Crime, there must be either an Indictment, Presentment, or some Information against him. Secondly, the party accused must either appear before that Court, or be out-lawed for not appearing. Thirdly, if the party appears, he must either confess the Crimes or Misdemeanors whereof he is accused, or else plead to the Indictment, Presentment, or Information, and come to tryal thereupon. Now if you consider the manner of their proceedings against Mr. Lilburn, you will soon finde, that instead of coming to a legal Hearing, and what proof they had against him to prove any matter of Fact, he was onely called into the Bar to receive his Sentence of Banishment; and whereas by the good old Law of England every punishment ought to be proportioned to the Offence, so that a man ought not to have the punishment due to a great Offence inflicted upon him for a small Offence; nor a small punishment for a great Offence: neither ought any man to be ruined by any pecuniary Muct or Fine, but every man ought to be preserved in his estate, as saving to the Merchant his Merchandize, and to the Villain his Wainage, and so every man ought to be preserved in a way of Trade, or other Calling. Now whether they deale so with Mr. Lilburn, let the world judge, who was fined 7000 l. which was far more then ever the Gentleman was worth, though it cannot be denyed but he hath deserved more of the Common-wealth, then some of those among whom the thousands and ten thousands have been divided, and Parke and Mansion houses was bestowed. Secondly, consider the manner of proceedings against him since his Return, and you will find abundance of malice against the person of the Gentleman, if not an [Editor: illegible word] endeavor to subvert the said Laws and Liberties; which if once effected, the good people of this Common-wealth will have nothing left to defend them in their lives, liberties, and estates, but the absolute Wills of those now endeavor the subversion of the said Laws. What else was the meaning that such endeavors was used to tie him up to a simple Plea of Guilty or not guilty, and so stave him off from his Plea of Oyer, or a Hearing upon the whole matter; which if it had been granted him, there needed to have been no Jury impanelled for the Matter, which the Bench very well knew; for the pretended Judgment upon which that pretended act was Grounded was no Judgment, but some Certaine Arbitrarie votes; and if the Judgment was no Judgment then sure the Act should be no Act and so the whole Matter must fall to the ground, but when by their Menaces of the Press, and still persisting in theire Refusall to grant him the Oyer, he was Constrained to Joyne Jssue and to Cast himselfe upon the Jury for his Tryall and the Jury brought in their verdict according to their Oathes and their Consciences, in which verdict they brought him in not Guilty, wherein they did approve English men, and Honest men as no doubt others would have done as well as they, if they had been such as were prejudiced against him in one kind or other.
But now beeing acquitted by a Jury of 12 Sworn men of the Neighbourhood it was expected hee should have been inlarged Speepily upon it, as by the Law of the Land hee ought to be, but Contrary to Expectation hee was detained in Newgate till the 28 of August upon which day Early in the Morning betwixt 3 and 4 of Clock hee was fetcht by a party of about 100 horse from Newgate and Conveyed to the Tower of London, and there kept Close prisoner and no man suffered to come neere him, and no cause of his deteinement known or expressed in any warrant of commitment, as ought to bee, if Legally they have any thing against him, wherefore it is strangely to be suspected they have some design either to try him by some Arbitrarie Court or other seeing English men will act according to their Consciences, and not to serve the wills of men how great in power soever, and so by Erecting some Arbitrary high Court and to trample under foot that most Just way of tryall by Juries and then (farewell) the Lives and Liberties of England, neither are they content (in having) [Editor: illegible words] prisoner in the Tower of London but much striving [Editor: illegible words] (to) have the Jury fined, if not imprisoned, for not forswearing [Editor: illegible words] and that by those men that in a late Declaration tells [Editor: illegible words] they were required to take upon them the Supreame (Authority of) the 3 Nations (its no matter by whom) and that they will be as [Editor: illegible words] of the Lives, Liberties and Estates of all others as of theire owne [Editor: illegible words] posterities whome they expect still to bee Governed by Successive parliaments.
Now Let the world judg whether the Actions of men be answerable to their protestaions; can any man imagine, that if any one or more of them should have undergone so severe a tryall for their lives and beeing acquitted by a jury would have been Content to be still deteined in person and no cause shown wherefore; and not onely so, but to bee hurried from out of their beds by a party of horse, and conveyed to the Tower; and there to be kept close Prisoner in the custody of their greatest enemies. This I can hardly beleeve; and therefore what Machivel said of Alexander the sixth, may be said of these men; Alexander the sixth saith hee never did any thing else but deceive men, and never meant otherwise; yet never was there a man would protest more effectually, nor aver any thing with more Sollemn, and observe them less then he. Nevertheless his cozenages thrived well enough because he knew how to play his part cunningly, Now whether these men knew how to act their parts cunning or not is the Question; and therefore in your Search and Enquiry you are to be dilligent and Imparciall, especially among the greate Ones, Because one of the Giandees said not long since that he knew not whether there were Any fundamentall Lawes or nor, if there were any he thought two Lines of them could not be found, now it is strongly to be suspected that he is one of the violaters of the said Lawes and therefore he would perswade the people not to Looke for the Maintanance of the said Lawes, by telling them that there are not two Lines of them to be found, and therefore they Must be Irrecoverably lost, and therefore if the said party Can or may be found he ought to be apprehended upon Suspition.
You are also to make Dilligent Search and enquiry into all Histories and Recordes of Antiquity, and especially into the Reigne of Queen Marie for a president and Parralell case, to justifie the now Governers in their late proceedings againg Mr. John Lilurbn, which if you do, which is much feared you shall be Exceedingly well Rewarded for your paines because the Aturney Generall is thought to be very busie in drawing up an Answer to to the Charge of High Treason Exhibited againg himself in the uper bench by Squire Elsliot, and for Mr. Hall it is thought that he is Takeing of Phisick and spitting his plums to Cleare his throat that the next time he comes to the bench, either the Court or himselfe may understand what he saith, and the Grandees themselves have work enough to cut out for the rest, except some few who have scarcely Read beyond the first of Mathew, or the 3 of Luke, and therefore it is no work for them, All which if you perform, you do both State and people an excellent price of service, and may expect your Reward; and for your so doing this shall be your sufficent warrant. Given under our hands Signed by populer order and appointment