Note: This is part of the Leveller Collection of Tracts and Pamphlets.
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T.82 [1646.11.19] John Lilburne, Vox Plebis, or The Peoples Out-cry Against Oppression, Injustice, and Tyranny (19 November, 1646).
John Lilburne, Vox Plebis, or The Peoples Out-cry Against Oppression, Injustice, and Tyranny. Wherein the Liberty of the Subjects is asserted, Magna Charta briefly but pithily expounded. Lieutenant Colonell Lilburnes Sentenced published and refuted. Committees arraigned, Gaolers condemned, and remedies provided.
Woe unto them that decree unrighteous Decrees, and that write grievousness which they have prescribed:
To turn away the needy from judgement, 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.
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 inocent blood, and for oppression and violence to doe it.
London printed 1646, in the sitting of Parliament, during which time the presses ought to be free and open, as the Parliament declared to the Bishops at the beginning thereof.
The pamphlet contains the following parts:
19 November, 1646.
TT1, p. 475; E. 362. (20.)
ALL States in the beginning are venerable: That Republique which would keep it selfe from ruine, is above all other things to keep their Religion uncorrupted, and their Lawes from violation, for 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 reverence, 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 irreconcileable 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 away 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 Common-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 in favour 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 their liberty, then while they have continually maintained it: And having once gotten possession of their ancient rights, they will watch them so carefully, and with such strength and vigour, as that they will hardly be surprized again, or their rights any more wrested from them. As it fell out in the case of the Romane State, when the Romanes having freed themselves of the government of the Tarquins their hereditary Kings; the Nobility began to take upon the the rule of the people: & by the exercise of the like or greater tyrany then the Tarquins had done; the people being inforced by a necessity of their preservations; created Tribunes, as Guardians of the publick liberty, whereby the insolence and Arbitrary power of the Nobilty, was restrained, and the people re-estated in their ancient liberty: which continued inviolable to them for the space of 800. yeares (after 300. yeares oppression of the Nobility,) to the great honour and renown of their Nation, and exceding enlargement of their Common-wealth. Now as concerning the liberty which the people of this Common-wealth doe, and of right both divine and humane, ought to challenge; it consists of these particulars following, Liberty of conscience in matters of Faith, and Divine worship; Liberty of the Person, and liberty of Estate: which consists properly in the propriety of their goods, and a disposing power of their possessions. As touching liberty of Conscience, it is due of Divine right to the people of God; since that the conscience is a Divine impression, or illumination, in the soule of man, which God instills into the heart by faith, whereby man is instructed to worship him in Spirit and Truth: and it is (as it were) the ingraven Character of the mind & wil of God in the soul of man; not passive, nor consisting of bodily substance: therefore it is not to bee constrained, or inforced to submit to any other rule, then what the Creator, by his revealed will, according to the Scriptures, hath imprinted in it: And for that cause is onely to bee accountable to him, whose image it is; as being the onely competent Judge of his owne will. As touching the liberty of our persons: That is founded not onely in Divine Law, but in Nature also; and as protected by the municipicall and known Lawes of this Kingdom. For as God created every man free in Adam: so by nature are all alike freemen born; and are since made free in grace by Christ: no guilt of the parent being of sufficiency to deprive the child of this freedome. And although there was that wicked and unchristian-like custome of villany introduced by the Norman Conquerour; yet was it but a violent usurpation upon the Law of our Creation, Nature, and the ancient Lawes of this Kingdome: and is now, since the clearer light of the Gospel hath shined forth, by a necessary harmony of humane society; quite abolished, as a thing odious both to God and man in this our Christian Common-wealth. Now that the liberty of mens persons hath ever been a thing most pretious in the eyes of our Ancestors and right deare and of most tender regard in the consideration and protection of the Law, if we doe but consider the originall Lawes of this Realme, the proceedings of our Ancestors, in the Acquisition and defence of their just liberties, and the continuall vigilance of them in making and ordaining good Lawes for their necessary preservation; we shall easily find that there hath not been any earthly thing or more weighty and important care to them, then the preservation of their Liberties. To prove this, Andrew Hern, a learned man in the ancient Lawes of this Kingdome, in his Booke called, The Marrow of Justice, written in the reigne of King Edward the first, fol. 1. saith, “That after God had abated the Nobility of the Brittons, he did deliver the Realm to men more humble and simple, of the Countries adjoyning, to wit, the Saxons, which came from the parts of Almaigne, to conquer this Land: of which men, there were fourty Soveraignes, which did rule as Companions; and those Princes did call this Realme England, which before was named, The Greater Britaine. These, after great warres, tribulations, and pains, by long time suffered; did choose amongst them, a King to reigne over them, to governe the people of God, and to maintain and defend their persons, and their goods in quiet, by the Rules of Right, and at the beginning they did cause him to sweare to maintaine the holy Christian Faith, and to guide his people by right, with all his power, without respect of persons, and to observe the Lawes. And after, when the Kingdome was turned into an Heritage; King Alfred, that governed this Kingdome about 174. yeares before the Conquest, did cause the great men of the Kingdome to assemble at London, and there did ordain for a perpetuall usage, That twice in the yeare, or oftner, if need should be, in time of peace; they should assemble at London in Parliament, for the government of Gods people, that men might live in quiet, and receive right, by certain usages, and holy judgements. In which Parliament (saith our Authour) the rights and prerogatives of the Kings, and of the Subjects, are distinguished, and set apart, and particularly by him expressed, too tedious here to insert. Amongst which Ordinances, we find, That no man should be imprisoned but for a capitall offence. And if a man should detain another in prison by colour of right, (where there was none) till the party imprisoned died; hee that kept him in prison should bee held guilty of murder, as you may read pag. 33. And pag. 36. hee is declared guilty of homicide, by whom a man shall die in prison, whether it be the Judges that shall too long delay to do a man right, or by cruelty or Goalers, or suffering him to die of Famine: Or when a man that is adjudged to doe penance, shall be surcharged by his Goaler, with Irons, or other pain, whereby he is deprived of his life. And pag. 149. That by the ancient Law of England, it was Felony to detain a man in prison after sufficient Baile offered, where the party was plevisable. Every person was plevisable, but hee that was appealed of Treason, Murder, Robbery, or Burglary, pag. 35. None ought to be put in the common prison, but onely such at were ATTAINTED, or principally APPEALED, or INDICTED of some capitall offence, or ATTAINTED of false and wrongful imprisonment. So tender hath the ancient Lawes and Constitutions of this Realme been of the liberty of their Subjects persons; That no man ought to be imprisoned but for a Capitall offence, as Treason, Murder, Robbery, or Burglary. And, if for these offences; yet ought he to be let to Baile: which to deny, were felony, in case the prisoner were plevisable, which is, if he were not appealed, indicted, or attainted. Nay, you see it was Felony to detain a man in prison by colour of right, when there was none. Neither was the law tender of the persons of Innocents, & bailable 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 violated 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 Dominum 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 Merchandise. 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 juramemum 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 exited, 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 judgemeat 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 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 Lex terra, 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 imprisonerur, nisi per legale judicium Parium suorum, vel per legem terræ. 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. 96. 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 Paganism 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 46. 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 prudentu 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 Commission out of Chauncery, which he pleaded in his justification: The resolution was, “That the Commission 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 command 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* 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 Committes; 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 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, shall 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 this is 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 desieising 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 contrahoc secerit, fiat Vic. tale brev. Rex Vic. salutẽ, 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 cours; 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 protection of the law, and not to be permitted to sue for a mans right, or to bee staied by injunction or prohibition, 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 amercement 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 SVRREPTITIOVS IVDGEMENT. 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 tryall 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 learned sage in the Law, Quod auferat oblivio si potest, si non, uteunq; 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. 15. 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. 8. 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 Westm. 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 eum mittemus, nisi per legale judicium Parium suerum, 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 the Parliament, or any other that sits in the Lords house by Writ, Et non ratione nobiliatis; can be a tryer of a Lord of the Parliament, or challenge this priviledge of tryall in case of Treason, Fellony, or other capitall offence: But a Noble-man of the Parliament shall not have this priviledge, either upon an Indictment of Praemunire, or upon an Appeale of Fellony, at the suit of the party, or in any Civill-Action, either concerning the right of Lands, or of other Possessions, or in any personall Action, brought by a Common-person, against a Lord of the Parliament, as appeares unto us by the Bookes of 1. H. 4. f. 1. 13. H. 8. f. 12. 10. E. 4. fol. 6.
This tryall of Noble-men by their Peers at the Kings Suit; is not upon Oath as in the case of common persons: for the Peers are not sworn before the Lord Steward, before whom this tryall must bee had: but they are to be charged by the Lord Steward, super fidelitatibus & ligeantiis Dom. Regi debitis; that is, upon their faith and allegeance due to the King; and if they acquit the Peer or Noble-man, upon whom they passe; the Entry is, Willelmus Comes E. & cateri Antedicti pares instanter super fidelitatibus & ligeantiis dicto Dom. Regi debitis per [Editor: illegible word] Senescallũ ab inferiori usq; ad supremum separatim examinati; dicunt, quod Wil. Dom. Dacre non est Culp. and so was the Entry in the case of the Lord Dacres 26. H. 8. Spilmans Reports, and Cookes Instit. 3. part. p. 30. If a Noble-man be indicted of Treason, Felony, or Murder, and cannnt be found; he shall be outlawed by the Coroners of the County: and in case of Clergy, no Noble-man shall have more priviledge then a common-person, where it is not specially provided for them by Act of Parliament; as by Stamford pl. Cor. p. [Editor: illegible word] is made manifest: out of all which, we gather, that a Nobleman hath this priviledge of tryal as well per legẽ terræ, as by this Charter: and that anciently, legale judicium parium, or lawfull tryall of Peers, for all manner of persons, as well Noble-men as Commons: was, vere-dictum duodecim proborum & legalium hominum de vicineto, a verdict of 12. good and lawfull men of the Neighbour-hood; that is, of the Commons of England, & so still remains saving only in this excepted case, by the Great Charter, which shewes, that there can be no legale judicium, or lawfull judgment; but it must be per legem terræ, or according to the Law of the Land, which is the other branch of this judgment, as to the Commons of England.
Now to prove that legale judicium parium, or lawfull judgment of a mans Peers or Equals, is by verdict of 12. men, and not otherwise: for the word Peers vinvocally signifies both. Let us consult both the judgment of Parliaments in this point, and the fundamentall lawes of the Land:
And first, for the opinions of Parliaments in this point, we finde, that by the statute of 25. E. 3. c. 4. “None shall be taken by petition or suggestion, made to our Lord the King, or to his Councell; unlesse it be by indictment or presentment, of his good and lawfull people of the same neighbour-hood. 42. E. 3. c. 3. It is assented, and accorded, for the good governance of the Commons, that no man be put to answer without presentment before Justices, or matter of Record, or by due processe and Writ, originall, according to the old law of the Land; and if any thing be done from henceforth contrary, it shall be void in law, and holden for errour; and to say one word for all: there are above 50. statutes now in print, and in force, that warrant this tryall, or legale judicium parium suorum, or tryall by a mans Equals or Peers, made since the Great Charter in severall cases: the citing of which statutes; for prolixity we avoid: And that this manner of tryall was the old law of the Land, wee are here to make it appear; that this manner of tryall, is according to the law of the Land, and that there is none other: wherein we are to observe this distinction, that this legale judicium, or lawfull judgment, is two-fold: The one is of the matter of Fact: The other is of matter of Law; That which is of matter of Fact, is to be tryed, per legale judicium parium, or a lawfull tryall of a mans Peers: That which is of matter of Law, is to be tryed by the Judges, or Justices of the Land, authorized thereunto by the Kings lawfull Commissions: To prove, that there is no other lawfull Judgment of our Peeres or Equals,
As touching the matter of Fact, we are to examine the foundation of this Common-wealth, and the originall constitutions thereof: We find that King Alfred having reduced this Kingdome of England into an Entire-Monarchy divided it into 38. Counties, and each County into severall Hundred and Mannors: The Counties were put under the government of Earles, who substituted under them Viscounts or Sheriffes, for the quiet government of the people, the Hundreds and Mannors subordinately under the severall Lords of them.
The Sheriffes had two Courts; to wit, the Sheriffes-Tourn, and the County-Court: The first, for offences against the peace of the Land: The latter, for entry and determination of civill-causes, between party and party.
In the first indictment, or presentment of offences was made per-Enquest; that is, by Juries.
In the second, the Free-suiters; that is, men of the neighbor-hood. The like was done in the leets or viewes of Frankepledge, and Hundred-Courts in the Hundreds. The like proceedings was in the Leets, and Court-Barons of Mannors in those Courts. There was no condemnation or judgment given, but by the Enquirie of good and lawfull men of the neighbor-hood.
This every book of the Law tells us; for more particular satisfaction, read Horn, f. 8. and fore-ward. These Courts were formed after the modell of the greater Courts of the Realme, the Kings-Bench, and Common-pleas, where greater jurisdiction was, as to the matter to be enquired of; but no variation originally in the manner of proceeding; only the jurisdiction of the Court of Kings-Bench, and Common-Pleas, in tryals of actions, ad dampnum 40. s. flowed over the whole Kingdome. The other Courts were confined to their severall limits, and might not exceed 40. s. damages: these were the originall Courts of the Kingdome: and the legale judicium parium, or lawfull judgment of Peers, was only tryall by Jury of Equals, before this great Charter: From which tryals, this clause is inserted into it, and by an inviolable right of law continues in force, even to this day, as every free subject of England by experience knowes; and as every book of our law proves into us, the verdict of the Jury in criminall causes, being the judgment of Attainder, and in civill causes a condemnation as Stamford, pl. Cor. p. 44. and all other bookes prove; And to leave every man without scruple in this particular; we finde by the statute of Westm. the 1. c. 12. That in case of Felony, those that refuse upon their arraignment, to put themselves upon the Enquest, shall be put to pennance fort, & dure, which is, stoned or pressed to death, because they refuse as the statute saith, to stand to the Law of the Land, And yet if the party accused stand mute, and will not put himselfe upon the Enquest; the Judge ought to examine the evidence, and to enquire by the Jury, whether he were mute of malice, or by the Act of God, before he shall give judgment against the Prisoner: so tender is the Law of the Land of the life of every man, that if an Offendor would wilfully cast away his life by contumacy; yet he ought not to be condemned; but per legale judicium parium suorum, or lawfull verdict of a Jury, which is according to the Law of the Land: this appeares by Stamf. pl. Cor. p. 150. a, b, c, d. Cookes Instit. p. 2. part. page 178. and so from this legale judicium parium, or lawfull judgment of Peers or Equals; we come to declare to the free-born subjects of England, what this lex-terræ, or Law of the Land is.
And first, we say, that this lex terræ, or law of the Land is the absolute perfection of reason; as Sir Edw. Cook. 2. part, Instit. page 179. saith.
Secondly, it is the law of England; and therefore all Commissions made to the Judges of the Land, run thus; That they in all cases that come before them, facturi sunt inde quod ad justiciam pertinet secundum legem & consuetudinem Angliæ, the Judges by their Commissions are to iudge and act only that which to iustice belongs, according to the law of the land, and custome of England, as. 2, part of Cooks Instit. p. 51. and dayly experience tells us.
Thirdly, it consists of the lawfull and reasonable usages and customs received, and time-out-of-mind observed and approved by the people of this Kingdome: for if a custome or usage be not lawfull, it ought not to bind; Quod ab initio vitiosum est; non potest tractu temporis convalescere, saith Ulpian l. 29. Course of time amends not that which was naught from the first beginning, and in Jur. Reg. v. 2. q. 117 art. 1. non firmatur tractu tempore quod de jure ab initio non subsistat, That which was not grounded upon good right, is not made good by continuance of time, and they must be reasonable too: so is Augustines opinion, in his Book de vera Religione, cap. 31. mihi lex esse non videtur quæ Justa non est; It seemes (saith he to me) to be no law at all, which is not just: It must likewise be received, and approved by the people.
Therefore, Vlpian F. de leg. 32. Leges nulla alia causa nos tenent quam quod judicio populi receptae sunt; the lawes doe therefore bind the Subject, because they are received by the judgment of the Subject, and Gratian in Dec. distinct. 4. Tum demum humanæ leges habent vim suam cum fuerint non modo institute, sed etiam firmatæ approbatione Comunitatis; It is then, that humane Laws have their strength when they shall not only be devised, but by the approbation of the people; confirmed.
Fourthly, this law of the land consists of the antient Constitutions, and moderne Acts of Parliament, made by the Estates of the Realme; but of these only, such as are agreeable to the Word of God, and law of Nature: for, as Gregory de valentia, Ex Tho. q. 93. art. 3. & q. 94. art. 34. well observes, Humane law is a righteous Decree, agreeing with the Law naturall and eternall; and Augustine de libero Arbitrio, cap. 36. nihil justum est atq; legitimum, quod non ab æterna lege sibi homines derivaverint there is nothing just and lawfull, which men have not derived unto themselves from the law eternall; And Horn, cap. 5. sect. 1. saith, That torvous usages, and unjust decrees not warrantable by Law, nor sufferable by holy Scripture; are not to be used or obeyed: Out of all which premises, wee conclude, that the Law of the Land, is the Law of England; the perfection of reason consisting of lawfull and reasonable Customes, received and approved by the people, and of the old Constitutions and modern “Acts of Parliament, made by the Estates of the Realme, and such only as are agreeable both to the law eternall and naturall; and not contrary, but warrantable by the Word of God, whatsoever laws usages, or customes, are not thus quallified, are not the law of the “land, nor are to be observed or obeyed by the people, as being contrary to their Birth-right, and the freedome and liberty which by the law of God, the lawes of the Land, and this great Charter they ought to enjoy. The summe of all is, that according to this Charter, the statute and lawes afore-mentioned, no man ought to be taken or imprisoned or disseized of his free-hold, liberties, or free-customes: or out-lawed, or banished, or any manner of way destroyed, nor condemned, “but by lawfull tryal of his Peers or Equals, or by the law of the Land; that is, by due processe of Law, by presentment or indictment of good and lawful men, where such deeds be done in due manner, or by Writ originall at the Common-law, according to the old law of the Land. Here we will answer an objection, that we heare is made, which is, that this is an old Law, and many lawes have been made against it since it was granted, which weaken the strength of this Charter.
To this we answer, That by the Statutes of 28. E. 1. called Articuli. super Cartas. & 25. E. 1. vet Magna Charta, fol. 137. and 37. called confirmatio Chartarum; It is provided, “That if any judgment be given against any points of this great Charter, or the Charter of the Forrest by any Iustices of the King, or other his Ministers, it shall be undone and holden for nought, and by the statute of 42. E. 3. cap. 1. all Statutes made against Magna Charta are repealed. True it is, we find that 11. H. 7. c. 3. by the practises of Empson, and Dudley; there was a statute made in the face of this great Charter, whereby many exactions and oppressions were put in practice upon the free subjects of England, to their great trouble and vexation: but we find withall,Oh! for the like justice now, and if it were not? what would become of all our Ship-money, Judges, monopolizing Pattentee, Merchants, and arbitrary Committee-men. that they were hanged that put it in execution, and in the 1. H. 8. c. 6. That illegal Statute of 11. H. 7. was repealed, and made void, and the cause specified to be, because it was against this Great Charter, and the law of the Land, but to put all out of doubt. “These clauses of the Great Charter, which we have discoursed upon hitherto, are all 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 est 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 Magnæ Chartæ, 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 Westm. 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 birthright 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 sentence 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 Westm. 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:
Exhibited before the Lords in Parliament assembled, by Nathanael Finch, Knight, and one of his Majesties Sergeants at Law, against Lieu. Colonell John Lilburne, for high Crimes and Misdemeanors done and committed by him.
VVHereas the Right Houorable, 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 whereas 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 by him contrived, and caused to be printed and published, intituled, The just Mans justification: Or, A Letter by way of Plea in Bar; hath falsly and scandalously, in certain Passages of the said Book, affirmed and published, concerning the said Earle of Manchester, and his demeanour in his said Office and Imployment: And touching the complaint by the said Lilburn alledged to be made by him, and others, to the said Earle, relating to the said Earle, as followeth, Pa. 2. I complained to the Earle of Manchester thereof, being both his Generall and mine. And at the same time divers Gentlemen of the Committee of Lincoln, as Mr. Archer, &c. having Articles of a very high nature against him; pressed my Lord (meaning the said Earl) to a triall of him at a Councell of warre. And at the very same time, the Major, Aldermen, and Town-Clerk of Boston, came to Lincoln to my Lord (meaning the said Earle) with Articles of a superlative nature against King their Governor; but could not get my Lord (meaning the said Earle) to let us enjoy justice at a Councel of War, according to all our expectations, & as of right we ought to have had; which at present saved his head upon his shoulders. And page 8. and 9. of that Book did affirm these words, viz, We could not at all prevaile: the reason of which I am not able to render; unlesse it were, that his two Chaplaines, Leo and Garter, prevailed with the Earle, (meaning the said Earle of Manchesters two Chaplains, Ash and Goode, to cast a Clergie-mist over their Lords (meaning the said Earles) eyes, that he should not bee able to see any deformity in Colonell King.
THe said Iohn Lilbure within three moneths last past, in a certaine book by him contrived, and caused to be printed and published hereunto annexed, intituled, The Free-mans Freedom vindicated: or, A true Relation of the cause and manner of Lieu. Colonell Iohn Lilburns present imprisonment in Newgate, being thereunto arbitrarily and illegally committed by the House of Peeres, June 11. 1646. for his delivering in at their open Barre under his hand and seal, his Protestation against their incroaching upon the common liberties of all the Commons of England, in endeavouring to try him, a Commoner of England, in a criminall cause, contrary to the expresse tenor and form of the 29. chapter of the great Charter of England. And for making his legall and just appeale to his competent, proper, and legall Tryers, and Judges, the Commons of England in Parliament assembled; did falsly and scandalously, in eighth page of that Book, publish and affirm concerning the said Earle of Manchester, these false and scandalous words: I clearly perceive the hand of Ioab to be in this, namely, my old back-friend the Earle of Manchester; the fountain (as I conceive) of all my present troubles; who would have hanged me for taking a Castle from the Cavaliers in Yorkeshire; but is so closely glu’d in interest to that party, that hee protected from justice. Colonel King, one of his own Officers, for his good service in treacherously delivering or betraying Crowland to the Cavaliers, and never called, nor (that I could heare) desired to call to account his Officer, or Officers, that basely, cowardly, and treacherously betrayed and delivered Lincoln last up to the enemy, without striking one stroke, or staying till so much as a Troop of Horse, or a Trumpetter came to demand it: His Lordships head hath stood, it seems, too long upon his shoulders, that makes him he cannot be quiet, till Lieu. Generall Cromwels charge against him, fully proved in the House of Commons, be revived: which is of as high a nature, I beleeve, as ever any charge given in there: The Epitomy of which I have by me; and his Lordship may live shortly to see it in print, by my meanes. And the said Iohn Lilburne in the Book and page last mentioned, in scandall and dishonour to Henry, Earle of Stamford, a Peere of this Kingdome, and late a Commander of Forces of the Parliament, maketh this scandalous expression concerning the said Earle of Stamford, viz. And for my Lord of Stamford at present; I desire him to remember but one Article made at the delivery of Exeter which, it may be, may in time coole his furious endeavour to inflame the free people of England.
VVHereas the said Iohn Lilburne, upon the 10. day of Iune last past, by vertue of the Order of the Peeres assembled in this present Parliament; was brought to the Barre of the House of Peeres, then sitting in Parliament; to answer concerning the said Book, in the said first Article mentioned: the said Iohn Lilburne falsly and maliciously intending to scandalize and dishonour the Peeres assembled in Parliament, and their just rights and authorities; did then and there in contempt of the said House of Peeres, at the open Barre of the said House, the Peeres then sitting in the said House in Parliament; openly deliver a certain paper hereunto annexed, under his hand and seale, intituled, The Protestation, Plea, and Defence of Lieu. Colonell John Lilburne, given to the Lords at their Barre, the 11. of June 1646. with his appeale to his competent, proper and legall Tryers and Judges, the Commons of England assembled in Parliament: (which paper is hereunto annexed,) and since caused the same to be printed and published. In which paper, among other scandals therein contained, he published and affirmed, concerning the Lords in Parliament, these words following, Viz. Therefore, my Lords, you being (as you are) called Peeres, meerly made by prerogative, and never intrusted or improved by the Commons of England. And in another place thereof concerning their Lordships, and their proceedings in Parliament; did protest and publish these words following: I doe here at your open Barre, protest against all your present proceedings with me in this pretended criminall cause; as unjust, and against the tenor and form of the great Charter: which all you have sworn inviolably to observe, and caused the Commons of England to doe the same: And therefore, my Lords, I doe hereby declare, and am resolved, as in duty bound to God, my selfe, countrey, and posterity; to maintain my legall liberties to the last drop of my blood, against all opposers whatsoever; having so often in the field, &c. adventured my life there-for: and doe from you and your Barre, as incroachers, and usurping Judges, appeale to the Barre and Tribunall of my competent, proper, and legall Tryers and Judges, the Commons of England assembled in Parliament. And in pursuance of his said malicious and illegall practice; did afterwards contrive and publish a scandalous and libellous letter hereunto likewise annexed, directed to Mr. Wollaston, Keeper of Newgate, or his Deputy: wherein (among other things) he hath caused to be inserted and published these words concerning the Peeres in Parliament, viz. Their Lordships sitting by vertue of Prerogative-patents, and not by election or consent of the people; have (as Magna Charta, and other good lawes of the Land tell me) nothing to doe to 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. (asterisks)
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:
IT 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, and 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 confessed.
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;
That the said Iohn Lilburn be Fined to the Kings Majesty in the summe of two thousand pounds.
And that he stand, and be imprisoned in the Tower of London by the space of 7. years, now next ensuing.
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.
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.
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.
IT is this day Ordered by the Lords in Parliament assembled, That the Lieutenant 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.
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 23. 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 Writ or 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 breviuns; Nay, every English Bill either in Chancery, Exchequer or Star-Chamber, doth pray, that Processe of Sub-pæna, 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 Appeal 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 honourable 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 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, Esquires, Citizens, Gentlemen, Yeomen, and Burgesses: and this distinction we find likewise in Bracton, c. 2. fol. 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, ubi supra, p. 23. and recorded in the Journall-Book of the House of Commons, 8. Eliz. Onflow 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 Prælatos, Comites Barones & communitatem Angliæ, 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 Judgments 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 Prælatos, 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 Houses; 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: Cook 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. f. 10. Be tit. Parl. 42. We find that in Parliament, the King would that I. S. should be 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 statute 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 statute 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-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 the 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 adjus 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 objection made, that there is matter of scandall against a Peer of that House, contained in Mr. Lilburnes Charge, and therefore fit to be examined there,
We acknowledge the Earl of Manchester to be a person of great honour, and will not blemish him, as he stands unheard, with a supposition of his being guilty: But neverthelesse, we conceive that it would not have lessened his honour, to have preferred some Information in the Kings Bench, or brought some Action at Common-Law upon some of the statutes, de scandalis magnatum, for the supposed slander contained in the bookes, written by Mr. Lilburn, whereunto Mr. Lilburn might have pleaded his lawfull plea, either by may of justification, or deniall, as his case would require him: In both which cases Mr. Lilburn should have been tryed by a Jury of 12 honest men, Commoners, his equals: and my Lord have avoyded any suspition of being partiall in his own cause, as it is said in the book of 8. H. 6. f. 14. Br. Connusans 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 proved only by witnesses, or (the Parliament sitting) by the Parliament, and not by a Jury, being matter of Fact, tryable by the course of the common-law: Neither doe we conceive, that this scandall reflects upon that noble Earl (if it be so) as he is a Member of the Lords house, but as a Generall of an Army, which employment, he had as well from the Commons, as the Lords, and the rather, since one of the Commons is as capable, as a Peer of the Lords house, of such a Command.
Therefore, we conclude, as to the matter and manner of proceeding this sentence upon the Lieutenant-Colonell, may be taken to be erroneous, both concerning the nature of the cause, and the jurisdiction of the Court; in respect of the Defendants priviledge; not to be judged by the Lords House, being a Commoner of England; unlesse the Commons had first enquired of the offence, and had transmitted it to the Lords House, upon a vote made in their House, by information or impeachment; together, with the proofs taken by them in the Cause; but especially, after an Appeal made to the House of Commons, as his proper Judges:
But we meet with another objection, which is; that part of this sentence, is for words and contempts acted after his summons to the Lords House, and at his appearing there: one of which was, for not kneeling at the Lords Barre; for that we conceive, that if hee through the tendernesse of Conscience not to offend God, by kneeling to any other power, did refuse to kneel at their Barre, (though it be a custome for those that are brought thither as Delinquents so to do: We cannot conceive that to bee a contempt, but rather an obedience to him, whom we ought to obey rather then men. As touching the no hearing of his Charge read, it was after his Appeal, Plea, and Defence, delivered in: which if that were just, and now rest; to be determined by the honourable House of Commons and by them so adjudged; there could be no contempt in that: And therefore, till his Appeale be determined, wee conceive, that part of his Sentence might well have been spared: As touching the contemptuous words by him uttered, against the proceedings of that honourable Court, though we cannot excuse it, a toto, yet a tanto, we may, in that they were rather words of heat proceeding from him, upon deniall of his Plea and Defence, which was his appeale to the honourable House of Commons, as his proper Judges, and rather issuing from him, out of a sence of his conceived injury, then a spirit of calumny towards their Lordships: We are of opinion, that in that sence they might have produced a more mild sentence, then to have been his utter ruine; since by that sentence he is to have 7. yeares imprisonment (the age of a man in the eye of the Law) and be made incapable of bearing any Office, Military or Civill, in the Army or Common-Wealth, and to be fined 4000. l. which we think, is more then he is able to pay: whereas by the statute of Magna Charta, liber homo non amercietur, pro parvo delicto, nisi secundum modum illius delicti & pro magno delicto, secundum magnitudinem illius delicti, salvo sibi contenemento suo; If his offence were great; yet hee ought to be amerced, so as his free-hold & contenement, or countenance may be saved to him, and not to be disabled in his Calling, or lodged in the Tower, during his life, where he now remains.
Having brought this indomitable Champion for our liberties, to the Tower of London, wee will shew you his entertainment there;
He was brought by the Warders to the Lieutenant, alias dictus Col. Francis West, the Gaoler, or chiefe Keeper of the Prison of the Tower of London; for so his title is, in the capacity of receiving and keepeing of the Prisoners committed to his charge; This Lieutenant or Goaler after some pause upon reading of the Warrant of Commitment, sent him to lodge at a Warders house for his further punishment, where he is to pay neere 20. s. a weeke for his lodgeing, providing himselfe dyet; The Lieutenant forbad his Keeper to let any body at first to come to speake with him, and forgetting the rule of Gods word, whom God hath joyned together let no man separate or keepe asunder, upon this pretence that by the Lords sentence and his Warrant, he could not keepe that worthy Patriot, from informing the people of their liberties, which the said Goaler or Lieutenant called writing of scandalous bookes against the Lords, unlesse he kept his wife and his friends from him, notwithstanding that Lieutenant “Collonel Lilburne offered to engage his word to the said Gaoler not to write any word-book, or letter, either of or concerning both, or either House of Parliament, or any thing else of publike concernment, so he might have his wife and Children, and friends admitted to him, according to law and right, answer was thereupon made by the same Gaoler. That unlesse his wife would stay with him and remaine with “him as a close prisoner to be kept within the Tower, he cold not permit her to come to him, to stay with him, or speake with him, but in the presence of his keeper, (the first time that ever we heard that the innocent wife was to be imprisoned and punished for the Husbands offence) having at that time no warrant to restraine either his wives or friends coming to him; but to colour such his illegall, uncharitable, and unchristianlike dealings, he goes to the Lords, and procures order from them as a superstructure upon the former sentence, to keepe this worthy Gentlemans wife from him, and not to permit her to stay with him, or to speake with him but in the presence of his Keeper: O horrible and unheard of Cruelty, “and barbarisme, did not God make woman of man, that she might be an helper unto him meete for him, Gen. 1. 18. did not God ordaine them to be one flesh, did not our blessed Saviour say, that God from the begining had made them male, and female, and that after their marriage they are no more twaine, but one flesh: doth he not command, and is it not an ordinance indispensable, That what God hath joyned together, let no man put asunder, Matth. 19, 4, 5, 6. By what power or authority doth this Goaler take upon him to dispense with, nay, to change the immutable laws of God our maker, and of our Saviour and Redeemer? If ye have faith in him, doth not our blessed Saviour tell the wicked Jews, when they tempted him with this questition, Is it lawfull for a man to put away his wife? THAT IT WAS NOT LAWFVLL: And that Moses suffered the Jewes through the hardnesse of their hearts, to put away their wives; But from the beginning it was not so? If this were hardnesse of heart for a man to put away his wife, though with her consent; how much more, and how much greater hardnesse of heart is it, that a woman, innocent and not charged at all with the offences of her husband that was created to be an helper to him, should, in the time of his imprisonment and affliction when hee needs most help, either be kept from him in a conjugall way, or if she will abide with him, must be made partaker of his punishments, if they were justly imposed? which kind of condition was never imposed upon the wife of any man attainted or convicted of treason, felony, or murder. For, though a man is attainted of treason that hath a wife; their marriage is not thereby dissolved: neither can they be kept asunder. Therefore we may conclude, that this usage of this suffering Gentleman for the publick liberty, is both against the Lawes of God, Nature, and Man: Against the lawes of God and Nature, as against the end of our creation: Against the Lawes of Christ, as against his ordinances: Against the law of man, as it is against the law of God, Nature, and the law of the Land.
And here we shall leave this worthy Gentleman suffering under this tyrany, and extream oppression of this Goaler, (who hath chosen rather to obey men then God;) who, if he be offended that we call him Goaler; we are able to inform him, that a predecessor of his own, Sir Gervase Elvish, who was Lieutenant of the Tower, (tam amplis modo & forma) as he now is, was indicted by the name of Goaler of the Tower of London, and hanged upon Tower-Hill, for consenting to the poysoning of his prisoner Sir Thomas Overbury. Taking occasion upon this usage of this Gentleman, to declare unto you, as we have been credibly informed from persons of good quality; the politick government of the Guardian of this prison, and his warders, for exacting money out of their prisoners.
First then, when a prisoner comes new in, or that is committed thither and not yet come; an Enquest is made by the Warders, what that prisoner is, what estate he hath, and whether he be like to pay wel; and if he be, each man is a suiter to the Lieutenant, that he may have the keeping of him: Perhaps if he be a good Fat one indeed, a Bribe is given, or some Reward promised at least, to the Gentleman Goaler, (a new erected Office, and an intruded Officer, as we shall shew hereafter) to procure the custody of that prisoner. If a Bribe or a Reward be not given; then the Lieutenant bestowes the prisoner upon his Warders, as they are in favour with him: as the great Turk doth his Concubines upon his Bashawes. And then the Warder is obliged to scrue his prisoner for the Lieutenants advantage; which hee commonly doth by these courses: First, he is kept close prisoner for ten or twelve dayes, or more, not suffered by their good wills, to speake with any body but themselves, for feare lest they should bee informed how to evade their snares. In which time, the Lieutenant tells the prisoner, that he hath placed him with an honest Keeper in his favour: And the Keeper tells him, that the Lieutenant is a very noble Gentleman, that he will desire nothing but what is due to him by the custome of the place; and brings him to a contract of five shillings a week, which he claimes for his own fee for attendance upon him; and 20 shillings a week, or thereabouts, for his lodging, if he lodge in the Warders house; and of some, more; and some, lesse. When that is done, the Warders tell him, That there are fees due to the Lieutenant: and desire them to think of it to prepare their way to a further liberty (being all this while kept in their Chambers.) Which, when they have contracted for, with their Warders, if they are lodged in their Warders or Keepers Houses; then they fall to work for the Lieutenants fees: and the Lieutenant avowes theirs; and so Mulus mulum scabit. This being done, the Lieutenant sends out his Beagles, of which, this Gentleman Goaler is alwayes one, being his chiefe Eare-wigge, and of the Quorum too; he comes and tells the prisoner, There are fees due to the Lieutenant. If the prisoner asks, what is due; he will tell you, that there is 100. l. due for the admittance of an Earle, 80. l. for a Baron, 70. l. for a Knight and Baronet, 60. l. for a Baronet, 50. l. for a Knight, and 40. l. for an Esquire: and that there is 30. s. a week to be paid by every prisoner for liberty to buy and dresse his own meat. Where you may observe, that here is not onely an excise put upon the honor of persons of quality; but upon their mouthes too, besides that which the States have put upon their meat: and that, it seems a preposterous course, that a man should be brought perforce to a prison, and against his will, and be [Editor: illegible word] forced to pay for his admittance to a Goale, as to a Copy-hold, or some other matter of benefit. If you will ask him how it appeares these fees are due: his answer is, That Mr. Lieutenant is not so earnest of mony, but that if the prisoner be not provided, he will stay for those fees till you can procure money. And by this means wring a promise out of the prisoner if he can: and if the prisoner give but the least hope of payment, though it lookes not towards any undertaking to pay any of those fees; This Gentleman Goaler is to affirm (and swear if need be) the prisoners promise. Shortly after the Lieutenant will (peradventure) send his Clerk to demand your fees and weekly payment of 30. s. which he calls by the name of Composition money. And if the prisoner stand upon it that nothing is due: then he will tell you, You promised to pay, and therefore are bound to pay, if there were none due. But if you ask him, how long those Fees have been paid? He will tell you, Twenty one yeares; and that makes a prescription: whereby we learn, that 21. yeares make a Goalers Prescription. Quodnota benè. if you return him empty-handed, then he brings you a thundring message, or perhaps, letters from his Master; wherein he tells you, If you will not pay the fees demanded, you must keep your chamber. And after that, if you walk but abroad out of your chamber, hee'l threaten to set a Sentinell at your doore (the first time that ever we read of [Editor: illegible word] Sentinell in the office of a Goaler.) And afterwards (peradventure) if you pay him not; he comes in person to you, and tells you, He cannot live without money. If you ask him, how he prove it to be due, he will tell you, that he finds it by his Predecessers books. Sir John Conyers, and Sir Allen Apsleys: and this is Title enough to an extortion.
These passages put us in mind of a Story that we have read in Rhamusio, of a great Desart of tartary called Lop, where are store of wild Beasts; amongh the rest, there is one that is like a Lion, but is not, and he hath alwayes two small beasts, which are called Jackals, 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 paunch 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 Mast-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: Another at diet only; athird hath been offered to be exchanged with 20. s. [Editor: illegible word] Nay, we could tel yon of a prisoner that was made in joincture to a Warders wife, who contracted by Articles upon their mariage, that his wife should have the profits proceeding of his prisoner. Which proceedings puts us in mind of that story we read in Lucian, who saith, that Homer upon a time had drunk too much of the sweet wine of Chios, his native Countrey, and fell a spewing; and there came Pindarus, and Virgil, and Homer, and a great many more, and lickt up his spewings, and thereby became inspired with Poetry, every one according to the quantity of the spewings that he lickt up. So these Goalers, upon the dissolution of Regall Authority, each of them hath lickt up a part of the spewings of it, & are become exercisers of this illegal arbitrary power, so far as their Wits will give them way, to the extream vexation and oppression of their prisoners: Insomuch that the poor prisoners doe wish with holy Job, That they had been as an hidden untimely Birth, or as Infants that never saw light, who are in that place, where the wicked cease from troubling, and the weary be at rest where the prisoners rest together, they hear not the voice of the oppressour: wherefore is light given unto him that is in misery, and life unto the bitter in soule? Job. 3. 16, 17, 18, 20. Yet, tell Mr. White, one of the best of the bunch (though there are some honest men amongst them) and one that would deserve to be esteemed a moderate man, (if he would give over his rayling and scribling of foolish Books against the dissenting-brethren, and men in affliction) of any of these practises; his answer will be; why, sure it cannot be? my Lieutenant is a Saint, a godly man, & one that never did any man any wrong, no, nor would do it, to gain a world: He is a man that is very diligent in taking Notes at Sermons, and goes to repetitions often, and does nothing, but what he doth by the Order of the Committee for the safety of the Tower; and surely, hee is wronged. Which puts us in mind of a merry story we read in the History of Reynard the Fox.
“Vpon a time, the Lyon proclaimed a great Feast, and invited all the Beasts of the Court; amongst divers beasts that came thither, the Panther came, and made a great complaint against Rynard the Fox; which was, that hee had (feyning great devotion) promised unto Kyward the Hare, to teach him his Creed, and to make him a fit Chaplain for the King, and did sing Credo, Credo, to him: the silly Hare believing, the Fox would have kept his promise, and have taught him to sing Credo, and become a good Chaplain for his preferment, came between his legs, but he was no sooner there, but in stead of teaching him his Credo, the Fox snapt at his throat: and if the Panther had not come in, & rescued him, the Fox had there devoured the Hare. When this complaint was made, Grymbard the Brock, that was Reynards sisters Son, answered for his Unkle,
“My Uncle is a Gentleman, and a true-man, he cannot endure falshood, he doth nothing without the Councell of his Priest, hee eateth but once a day, he liveth as a recluse, he chastiseth his body, and lives only by Almes, and good mens charities, doing infinite penance for his sins; so that he is become pale and lean with praying and fasting, for he would fain be in Heaven.
But whilest Grymbard was making this defence, in comes Chanticleer the Cocke, clapping his wings with dolefull cry, and accused Reynard for murthering his faire Daughter Coppel, and that hee had eaten her, and that Grymbard had eaten the bones which Reynard left.
We promise you, Mr. White, a shrewd evidence against Reynard: neither, though that Reynard pleaded, this was done by advise of his priest, and was paler and leaner with fasting and praying, then your Lieutenant is; yet it did not excuse him.
And you may remember, Mr. White, that there is an out-cry against the Lieutenant, that albeit the honourable Houses of Parliament, have made an Ordinance, that prisoners in the Tower of London should be brought to the Bar of the Kings Bench by Habeas Corpus, to the end, they might be charged by their Creditors for their just debts, and removed to the Kings Bench; Yet the Lieutenant did refuse to obey an Habeas Corpus in that case, upon pretence that there were fees due unto him from the prisoner which was to be removed: and for the same, he is ordered, upon a pain, to bring in the prisoner the first day of the next Terme, the Judges not allowing that a good plea.
And as we remember, Mr. White, when your wife distrained your prisoners Trunk, your Lieutenant awarded the prisoner to pay 4. l. for the redemption to you before he could have it: So that, Mr. White, you playd Grymbard here: nor can the Lieutenant free himself, by saying he did these things by order of the Committee; for we are confident, that the Committee are persons of that piety, honour, integrity, & justice, that they would not stain their names with command of such barbarous tyranny as hath been practised against the poor prisoners, their Wives, Ladies, and Children in that prison.
Therefore, we do assoyle them, and leave it at Mr. Lieutenants door, till he plainly and evidently remove it further; And because Mr. Lieutenant, or any that he employes for the guard of his prisoners may know their duties of their places the more cleerly, and may not pretend ignorance for usage of their prisoners; we have thought fit to publish the Lawes that have reference to Gaolers and Keepers of Prisons: which Lawes, they upon their several penalties are to observe, and the people to preserve as a main badge of their Liberties, least by the niglect of them; an insensible slavery be drawn upon them.
Now, concerning the lawes of prisoners, and the usage of prisoners; we find by the common law, Quod Carcer ad cominendos non ad puniendos haberi debet, as Bracton l. 3. f. 105. Gaoles are ordained to hold prisoners, not to punish them: For, imprisonment by the law, is (neither ought to be) no more then a bare restraint of liberty, without those illegall and unjust distinctions, of close and open prisoner, as appears by Stamf. pl. Cor. f. 30.
Yet we know some kept close prisoners in the Tower almost 3, years, committed only by Warrant of a single Peer, (a most horrible oppression.)
And therefore Bracton f. 18. saith, That if a Gaoler keepe his prisoner more close then of right he ought, whereof the prisoner dieth; this is Fellony in the Gaoler.
And Horn in the Mirrour of Justice, p. 288. saith, That it is an abusion of the law that prisoners are put into Irons, or other pain, before they are attainted.
And p 34. 36. he reckons the sterving of prisoners by famine, to be among the crimes of homicide in a Gaoler.
And we find 3. E. 3. Fitzh. Tit. pl. Cor. 295. That it was Felony at common law in Gaolers to compel their prisoners by hard imprisonment to become Approvers, whereby to get their goods: which law is since confirmed by the statute of 14. E. 3. c. 9. with some inlargement, as to under-keepers of prisons, and the penalty of the law: and that Gaolers having done this, have been hanged for it; you may read 3. E. 3. 8. Northampton. Fitzh. pl. Cor. 295. and else-where: but this for a taste to them. Wee now come to shew what fees are due to them.
The Mirrour of Justice, p. 288. tells us, that it is an abusion of the law, that prisoners or others for them, 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 Stat: 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 agreeable 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 quibuscunq; spoliari: sed, dum fuerint in prisona; 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 acquirted or convicted. Nay, we say further, that if prisoners have not whereof, of their own to live; they ought 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 life in the field against the Royall intruders, and out of hatred and detestation to the execrable and odious oppressions of Committee-men, Gaolers and other inferiour Ministers of this present State, having an earnest desire and resolution to enjoy our 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. 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 things under 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 Trusters; 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, what is fit to be determined in it, for we neither can nor will distrust either your Judgment or Justice: but this we humbly beseech 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 importuned in 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 in stead, 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, Æmilius, 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 meanes 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 King of 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 Clement Edmunds observes upon Cæsars 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 faule and unprofitable vermin, will fall off your service, to their own cause. 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 Commotion, 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 themselves, & 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 metius 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 oppression 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 fall 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, Cremona, 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 Cæsar 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 Scriptural-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 Agrarian 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 Cæsar 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, that we offer our humble advices to you in these particulars; since 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 as 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 good that amplifies the Kingdome. We know that those that haue in their hands the Government of a State, ought to increase the number of their free Subjects, and make them as their Associates, and not Vassals. We know that it is more honourable and profitable unto a State, moderately to use their Subjects meanes, thereby to keep their State in perpetuity, then through covetousnesse to devoure them in one day, and in their losse to undoe themselves for ever. We know that Tyrannie is a violent forme of Government, not respecting the good of the Subjects, but only the pleasure of the Commanders. We know that it is better to live under an hard and harsh known written law, where every man may read his duty, and know his offence, and punishment; then under the mildest arbitrary government, where the Subject is condemned at the will of their Judges, without any certain or known Rules, how specious or just soever the pretence of this kind of proceeding may be. Wee know that the pretence of necessity in a Prince or State, is but the Bawde to Tyrannie; And, that Tyrannie is more odious in a State we desire to maintain by love, then in a Prince that seekes to bring it upon his Subjects by force. Wee know, that those States, that call all the endeavours of their subjects, only duty and debt, and are more apt to oppresse their people, then to do them Justice, shall find themselves upon the first change of fortune, not only the most friendlesse, but even the most contemptible and despised of all other.
And we fear, that notwithstanding all our desires of the preservation of this State; there will be little amended, till by sad experience, the truth of our conjectures in the hazard of this Common-wealth, are made manifest.
For we know, that all men are better taught by their owne errours, then by the examples of their fore-goers: but if our earnest desires and humble supplications, shall either with scorn be rejected, or with negligence disregarded, to the apparent hazard of the publike liberty, and most desirable State we wish to support; we hope that God will raise up some noble English Romane Spirit, such a one as Caius Flaminius, who as Sir Walter Rawleigh l. 5. p. 357. observes, for the preservation and maintenance of that Common-wealth, understanding the Majesty of Rome to be wholly in the people, and no otherwise in the Senate, then by way of delegacy, or grand Commission, did not stand highly upon his birth and degree, but assisted the Multitude, and taught them to know and use their power over himself, and his fellow-Senators, in reforming their disorders; and vindicating the publike liberty of his Countrey: In, and for which, we are resolved to dye: and which we wish may alwayes flourish, and continue for the perpetuall benefit, utility, and renown of all the free-born Subjects of England.
COurteous Reader, in regard Lieu. Colonel Lilburns Charge and Sentence in the Lords House, and their Orders thereupon, are not as yet in any Book printed, but in this Vox Plebis; although there is, in several Books, much of his cruel usage, by vertue thereof; published: I shall desire thee to read his own two Books, called, Londons Liberty in Chains discovered, printed Octob. 1646. And his Anatomy of the Lords Tyranny and Injustice exercised upon him; printed Novemb. 9. 1646. which two compared with this, doe fully and amply declare and prove all the Lords proceedings with him to be most illegall and unjust. And as thou readest the fore-going Discourse; with thy Pen amend these following Presse-faults.
Pag. 2. line first, (for irepairable, read irreparable.) p. 4. l. 15 (for as protected, read is protected. and l. 37. for Marrow of Iustice read Mirror of Iustice.) p. 6 l. 5. for their subiects, read the subiects.) p. 9. l. 32. for contentment read contenement. page 12. l. 19. for May 16. H. 6. read Mich. 16. H. 6. p. 15. l. 28. read outlawed but by. p. 16. l. 20 for aed read and. p. 17. l. 14. for dye read dine. p. 18. which should be p. 20. l. 9. for vinvocally read universally. p. 21. l. 18. for torvous read torcious. p. 22. l. 27. for witnesses read Writs. l. 34. for Astutia read Atia. p. 24. l. 4. for rediendo read redeundo. p. 28. l. 4. & 5. read in interest for in in interest. l. 25. for inflame read inslave. p. 29. l. 10. for improved read impowered. p. 30. l. 1. read conceiving for concerning. p. 37. l. 17. read quod for quid. p. 47. l. 7. read question for questistion. p. 57. l. 35. read pests for Priests. p. 62. l. 12. read the people for these people, l. 13. read commotion for commontion. p. 63. l. 14. for can give remedy read can give no remedy. p. 66. l. 21. for the Agearian law read Agrarian law. p. 67. l. 11: for conceive the publick; read concern the publick.
[* ] Which is worth the making.