of the hands of those that are to strong and mighty for thim and that they shall judge righteously betwixt a man and his brother his neighbour in justifying of the righteous and condemning of the wicked without wresting judgement or respecting persons but that with judgement they shall beare the small as well as the great and above all that the Judges shall not be afraid of the face of man for saith he ye Judge not for man but for the Lord who is with yon in judgement and therefore saith he take heed and d ee it for there is no iniquitie with the Lord nor respect of persons nor taking (a) Exod. 18 21. 23.2.6.8 Deut. 1.16.17 ch 16.19 25.1 2 Chro. 19.6.7 of gifts And as God is thus delighted in doing Justice and Judgement so on the contrary side he hath declared he asmuch abhorres those that turne Judgement into wormwoode and ganle and leaves of righteousnesse in the earth and commits mighty sinnes in afflicting the just in taking of bribes and turning aside the poore in the gate from their right (b) Esa 1.23.24 Jer. 5.28.29 22.16.17.18 Amos 5.12 6 12 14. Mic. 3.9.11 Zek. 8.16 17. And that Sir which adds unto my gladnesse is this that now I stand not before Arbitrary Judges which judge themselves bounded by no law or rules either of God or man but are left loose unto the reines of their depraved corrupt lusts and wills by vertue of which I have not a little beene tossed and tumbled from Gacle to Gaole and not for some few houres dayes weekes or Moneths but for some yeares without having any legall crime laid to my charge or ever been brought out unto any Legall triall But Mr. Bacon here I stand before you who are sworne and proper Judges of the Law Yee of the Law of England with that learned Lawyer Sir Edward Coke often stiles a Law of righteousnesse and mercy especially to Prisoners in my case (c) 1 Part. insti Sect. 438. fo 260. 2 Part. instit so 42 43.46.55.56.115.186.189 190.526 4. Part. instit so 168. who have been almost this two yeres imprisoned First By the House of Lords and then Secondly By the House of Commons for nothing as clearely appeares unto you by my Warrants of Commitments which onely charge me with generals and generalls are no charge nor crimes in (d) 2 Part instit so 52.53.315.318.591.615.616 and 1 Hart Book declar pag. 38. 77. 201. 845. and the Votes upon the impeachment of the 11. Members and the Petition of right 3 C. R. and the Act that abolished the Star-Chamber 17. C. R. Printed in my Booke called The Peoples Prerogative Pag. 22. 23. 24. 25. 26. Law but if they were as they are not Yet those viz. the Lords and Commons that made them were never betrusted by the Law to be the executors of the (e) See the 14. and 29. Chapters of Magna Charta and the exposition upon them 2 Part. instit fol. 29.46 c. and the Petition of Right and the Act that abolished the Star-Chamber and Rot. Parl. 5. R. 2. num 45. Rot. Parl. 1. H. 4 Mumb. 14. numb 79. 5. H. 4. chap. 6. 11. H. 6. chap. 11. 23. H. 6. chap. 11. 15. 4. H. 8. chap. 8. 1 2 P. M. chap. 10. 4 Part. instit fol. 25. and 1. Part Booke Decl. pag. 48. 278. Law And therefore Mr. Justice Bacon with all honourable and due respects upon your Office and persons I desire with asmuch brevity as I can to make my defence against both the Warrants of my commitments and I shall crave leave to observe this Method First although I grant that the House of Commons and the House of Lords have by the Law and Custome of England their proportionable power and interest in the making and repealing of Lawes yet I do averre that neither devided nor conjoyned they are not in the least betrusted to execute the Law but your honours and the rest of the sworne Judges Justices of the Peace and the Constables c. are by Law betrusted to be the sole and only executors of it And that no Commoner of England is to be restrained of his liberty by Petition or suggestion to the King or to his Councell unlesse it be by indictement (f) 5. Ed. 3. ch 9. 25. E. 3. ch 4. 37. Ed. 3 ch 18. 38. E. 3. ch 9. 42. Ed. 3. ch 3. 11. R. 2. ch 6. 2. part instit fo 46. and Petition of Right and the Act that abolished the Starre-Chamber or presentment of good and lawfull men where such deedes be done and no Commoner of England is to be past upon to lose either life limbe liberty or estate but by legall Tryall by a Grand Iury and Petty Iury of his peers or equalls which Sir Edward Cooke calles the ancient and undoubted Birth-right of an Englishman 4 part insti fol. 41. before a sworne Iudge of the Law in the ordinary Courts of Justice the proofes to be in cases of Treason c. by two sufficient witnesses at least plaine and upon their Oathes (g) See the 14. and 29. Chapter of Magna Charta and 2. part instit fo 29.46.50 and the Petition of Right and the Act that abolished the Starre-Chamber and the case of the Corporation of Cambridge Rot. Parl. 5. R. 2. Num. 45. and the notable Plea of A. B. a Citizen of London pag. 24. and 5. part insti fo 25. and 1. Ed. 6. ch 12. and 5. and 6. E. 6. ch 11. and 13. Eliz. ch 1. And Mr. Iustice Bacon by Law a Lord of the Parliament is not so much as to be of the Jury of a Commoner as learned Sir Edward Cooke declared 1 part insti sect 234. fo 156. and if by Law he cannot be of his Jury much losse can he be his absolute Iury and Iudge both And also by the Act that abolisheth the Starre Chamber this present Parliament 17. Car. Rex it is firmly and strongly inacted that all Lawes Orders Ordinances Iudgements and Decrees made in deminution of the 29. Cha. of Magna Charta and the Lawes before recited are and shall be null and void in Law and holden for errour and therefore at present to conclude this point about jurisdiction I shall winde it up with Sir Edward Cookes words in his proeme to his 4. part institutes viz. That the bounds of all Courts are necessary to be known for as the Body of a man is best ordered when every particular Member exerciseth its proper duty so the body of the Common-wealth is best governed when every severall Court of justice exempteth his proper jurisdiction But saith he if the eye whose duty is to see the hand to worke the feete to go shall usurpe and increach one upon anothers workes as for example the hands or feet the office of the eye to see and the like
these should assuredly produce disorder and darknesse and bring the whole body out of order and in the end to distruction so in the commonwealth Justice being the main preserver thereof if one Court should usurp or incroach upon another it would introduce incertainty subvert Iustice and bring all things in the end to confusion But Sir I shall at present in this place spare the full opening of my plea in this particular and reserve it to the place most fit for it And therefore I shall infist upon the 2 part of my plea which is that the matter and forme of my Warants of commitments are illegall the legality of which ought as Sir Edward Coke declares in his 2. part instit which is published by the present House of Commons for good law to the Kingdom as appeares fol. ult who therein fol. 52.590.591 expressely saith 5. things are essentiall in Law to the making of a commitment lawfull viz. 1. That is be by dur Processe or proceeding in Law 2. That he or they that do commit have lawfull authority 3. That this warrant or mittimus be lawfull and that must be in writing under his hand and Seale 4. The cause must be contained in the Warant or Mittimus and that not in generall termes but in particular as for treason then for what particular Treason and of for fellony then for what particular felony and if for misdemeanours then for what particular misdemeanour 5. The Mittimus containing a lawfull cause must also have a lawfull conclusion viz. and him safely to keep untill he be delivered by due course of Law and not untill the party committing please or doth further order or for 7. yeares Now Mr. Justice Bacon all and every of these particulars I doe averre is wanting in both my Commitments For first there was no due Processe of Law against me no Bill filed or Indictment preferred nor no legall complaint exhibited against me neither did I see any legall prosecutor before I was originally committed no nor not to this present houre although I have been almost two yeares in Prison First in Newgate and then secondly in the Tower devorsed from my wife debarred of my friends deprived of pen Inck and paper But I desire to cease this at present and go on to the main things And therefore 2. I aver that by the known Law of this Land neither of the Speakers of either House nor neither House themselves have the least shaddow or colour by any declared and known Law of England to commit the meanest Commoner of England that is not one of there members to prison either for treason the highest crime for that is expresly to be tryed by the common Law by people of the neighbourhood of the same condition as appeares by the 25 Edward 3 chap. 2. and 1. 2. Phillip Mary Chap. 10. yea and it lyes not in the whole Parliaments power to punish any man for any crimes which they shall call treasons but what is cleerly declared and fully expressed to be treason by the statute the 25 Edward 3 Chap. a as appeares by 1 H. 4 Chap 10. and the 1 M. Chap 1. Or for breach of the peace although it be in affronting beating or wounding of any Parliament man for that is expresly ta be tried in the Kings Bench. 5 H 4 Chap. 6. and 11 H. 6 Chap. 11 Yee although a sherife by law is to pay 100 l. to the King and to suffer a Years Imprisonment c. without Baile or mainprise for every false returne of a Knight of the Shire that he makes yet by Law neither Houses are to be Judges in this very businesse so immediately concerning the House of Commons but it shall be examined and tryed before the Justices of Assises in the Sessions of Assise 8. H. 6. Chap. 7. 23. H. 6. Chap. 15. yea the Parl. or the House of Commons are not to punish those that will not pay them their wages for their service done in the Parl but the refusers are to be punished by the legall administrators of the Law in the ordinarte Courts of Iustice 23. H. 6 Chap. 11. Now Sir if the Parliament or the two Houses either conjoyned or divided cannot exercise executive Justice in these things so nighly concerning themselves much less in things more remote as my case is who if I were guilty of the thing layd unto my Charge yet they are only and alone tryable and punishable at the Common Law and not in an arbitrary uncertain way in either or both Houses the rules of which certainly no man in heaven or earth knoweth and saith that worthiest of English Lawyers Sir Edward Cook in the Proem to the third part of his Institutes It is a miserable servitude or slavery where the Law is uncertain or unknown And I know you know it is a received Maxim in Law that the Parliament is not to medle with judging or punishing that which appertains and belongs to the Common Law but my pretended crimes have their punishments appointed by the Common Law and are there only to be tryed and punished and therefore in the least belongs not unto the Parliaments Cognisance or Jurisdiction Nay the Parliament men themselves for Treason Felony and breach of the Peace are not priviledged in the least from tryals at Common Law as appears by the fourth part Institutes fol. 25. and the Lords and Commons confess the same in their Declarations 1. part pag. 48. 278. The Common Law of England which is right reason or as Sir Edward Cook stiles it the absolute perfection of reason 2 part Instit fol. 179. hateth all partiality or faction in tryals which would unavoydably be if the Law-makers should in any case be the Law-executioners and besides the legal benefit of final appeals to the high Court of Parliament which I judg in Law to be the whole and intire Parliament and not a single House would be hereby totally destroyed for if they should be impowered by Law to be Executers of it and should as it is possible they may do me wrong injustice I am thereby by power destroyd with out remedy which the Law abhors and therefore the wisdom and reason of the Law is such to betrust Judges that rationally are liable to an account in full Parliament and them only to be sole Executors and Dispensers of the Law betwixt party and party and not to betrust the whole Parliament or any part of it with the executing of the Laws but only to betrust them as their fittest work with a power to repeal those Laws that are amiss and to establish and make better in their places But the Laws while they remain Laws and unrepealed are as binding by Law to themselves as the meanest men in England and they have no priviledg of exemption from them saving in freedom of speech within their respective Houses for which they have an act of Parliament to indempnifie them as appears by the 4. H. 8.
Cofers at their pleasure full and get in to them all the money of England therefore let rich men look about them in this particular and in a second regard also more dangerous then this forasmuch as it concerns life let all men I say look well about them for I am confident of this that I suffer so much Barbarism from Cromwel and his Creatures who are not willing to come to a tryal with me for the Leiutenant of the Tower hath already denyed me the benefit of the Law of England in not obeying my first Habeas Corpus and would not suffer me without fresh strugling to come to a legal tryal and thereby have before the sun convicted themselves of wickedness and unrighteous dealing with me for saith Christ John 3.20 Every one that doth evil hateth the light neither commeth to the light lest his deeds should be reproved or discovered I say I am confident I suffer so much from Cromwel c. for opposing and throwing down the Lords Tyranny which he did and still is evident he doth intend to make the arbitrary yet seeming legal ax to chop off the head of every man in England he hath a mind to destroy any otherwise then by wilful murder as he did Richard Arnal at Ware and having been under God the chief Instrument to break him of that damnable and wicked design he and his Creatures therefore are as mad at me as so many mad men c. Although they have done so much already in destroying the Law and setting up Arbitrary Tyranny that I will make it good with my life divers of them viz. of the House of Lords c. better deserve Tower hill therefore then ever Srafford did but what a company of foolish silly Creatures are Cromwel and his confederate Grandees who would pretend to give those Commoners of England a tryal according to Law and Justice ☞ whose lives they would take away by a tryal before the Lords * Here I began and said Sir what an errational thing is it for the Lords to go about at their bar to try Commoners for their lives when as men that know the Law c. when as men that know the Law of England fully knows that if the present Lords were a true House of Lords as before I have fully proved they are not yet they were not able legally to try one of themselves for though the body of their House in case they were twelve or eighteen and under they cannot be should be in the nature of a grand Jury and petty Jury and so the Judges of matter of Fact yet they must have a Judg of matter of Law too and that must be a Lord high Steward which they neither have nor are able legally to make and therefore have no colour of power in Law to try one of themselves much less a Commoner that is none of their Peer or equal whom the Law hath again and again expresly prohibited them to meddle with but enough for the Lords at present and now two things more distinctly for the House of Commons First admit they had a Jurisdiction in executing the Law which I have before already fully proved they have not yet all Courts of Justice established by Law in England are bound and tyed to Judg no man but by witnesses sworn according to the Law they being the evidence to the Jury and Judg 3. part instit fol. 163. But they never put Masterson my accuser to his oath in his Information he delivered against me although he were but a single informer never any man of all the large company besides himself appearing against me and therefore no shadow or colour for the House of Commons to adjudg or condemn me to prison thereupon seeing no man whatsoever can be condemned by any Court in England without witnesses sworn against him according to Law but if he had delivered what he did deliver against me upon his oath it had been never the legaller because they have no power nor never had to administer an oath and therefore cannot by the Law of England in the least pretend any Jurisdiction over me in cases Criminal or any power at all to commit me to prison for where the Court hath no authority to hold plea of the Cause there all proceedings are Coram non Judice and there perjury though Masterson had sworn never so falsly cannot be committed and so against all reason a man is left at liberty to say without fear of punishment what he please because it being not in a Judicial Proceeding no perjury can be committed by Law and that the House of Commons hath no power to administer an oath is evident in that the Law gives them none nor they never practised it and therefore if they would now put it in use they cannot legally of themselves now begin to do it For as learned Cook saith in his Chapter of perjury 3. part instit fol. 165. An oath is an affirmation or denyal of any thing lawful and honest before one or more that have authority to give the same for advancement of truth and right calling Almighty God the searcher of all hearts to witness that his Testimony is true so that saith he an oath is so sacred and so deeply concerning the Consciences of Christian men as the same cannot be administred to any unless the same be allowed by the Common Law or by some Act of Parliament neither can any oath saith he allowed by the Common Law or by Act of Parliament be altered but by Act of Parliament no nor a new oath raised and therefore he declares it to be a high contempt of the Law of England for any man to administer an oath without warrant of Law and to be punished by fine and imprisonment and of all a And here I skipped seven or eight lines to this mark ☞ oaths in use in England This oath of Confirmation for deciding and ending of Controversies is the only and alone warrantable oath by the Law of God Mat. 5.34 35 36 37. and Heb. 6.16 17. James 5.12 And as for other oaths I know no use in the world of them for those men that do not love things that are excellent for the excellency inherent in them will never love nor honor them for oaths sake But ☞ the House of Commons wanting a legal power to administer an oath it is a clear demonstration and proof that they have no power or Jurisdiction at all in Law to decide Controversies betwixt a man and his neighbour especially in times of peace when all the ordinary Courts of Justice are open and therefore have no shadow or colour in Law to adjudg or commit any man that is not a Member of them to prison And in b But all this president to avoid disputes I skipt over for the Judges prest that the House of Commons owned the Lords Jurisdiction in some cases to which I answered I owned it as well as they and
am that the dealings of the Lords and Commons with me demonstrated by their orders of committments flowes not from any power given them either by the Law of the Laud nor from the Indentures betwixt them and their chusers no nor yet from any word or clause in the Writ of there summons or Elections and therefore fourthly it must flow from there CROOKED IVSTS DEPRAVED VVILLS and ARBITRARY PLEASVRES by which with naked faces they declare themselves to be limitted by no boundary unaccountable and obnoxius to no censures for any possible abuse whatsoever that can becommitted by them for by these committments they evidently declare there is no rule whereby to measure the rectitude or obliquitie justice or injustice of their Government and actions and by consequence they are under an impossibilitie to render an account of their wayes and doings and so by consequence the people of England are in the absolutest road way of perfect slavery that is upon the earth this the Parliament or the Lords and Commons would have the World to beleive they abhord in the King as appeares by there last declaration against him in which they shew the reasons of their votes not to make or to receive any addresses to or from him for in Page 12 they sâ—y the King hath laid a fit foundation for all tiranny by that most destructive maxime of his viz. that he oweth no account of his actions to any but to God alone but by the warrants of my coÌ„mitments it seemes this wicked and heathenish Maxim is Iudged by the makers thereof not to be to sweete a morsell for their own Pallets though in their said declaration they judge it to sweet for the Kings and therefore to conclude this point if this honorable Court of Justice the Judges whereof are sworne to Judge according to the Law and not lust will nor pleasure will Judge these arbitrary Committments of mine to be legal then I make my humble desire unto you the Judges thereof that you would cousen and deceive the people of the Kingdome no longer by assuming unto your selves the name of Judges of the Law but rather translate your Titles into the name of Judges of lust will and pleasure that so the people may expect the legall administration of the Law no longer from you and so I have done with the Fift and last ingredient to a legall Mittimus Now Mr. Justice Bacon seeing it is objected both by you and Mr. Justice Roll that my Commitment from the Lords is rather a Sentence Judgement or Decree hen a bare Mittimus and therefore being a judgement by the Lords a higher Court for 7. yeares imprisonment I cannot be delivered by this Court which being inferiour to it cannot reverse it nor be Judges of it To which Mr. Justice Bacon I answere First I doe not seeke unto you at present for reversement of my Sentence which is 4000. l. fine and perpetuall disfranchisement of the Liberties of an Englishman as well as seven yeares imprisonment But I come unto you as Judges of the Law who are sworne impartially to doe me Law and Justice notwithstanding any command whatsoever by any whatsoever to the contrary for my personall liberty which is my undoubted right by Law for any thing that judicially appeares before you upon the Warrants of my commitments For I have already fully proved unto you there is not legally the least crime in the world laid unto my charge and therefore no rules in Law for you to send me backe againe to prison But secondly I answer that I have already proved the Lords are none of my legall Judges and therefore all their proceedings with me from first to last are corum non judici Yea even their Sentence and Commitment it selfe for being it is against the 29. Chap. of Magna Charta it is void and null in Law which expressely saith That no Freeman shall be taken or imprisoned or be dissesed of his Freehould or Liberties or free Customes or be Outlawed or exiled or any otherwise destroyed nor past upon nor condemned by the lawfull judgement of his equals or by the Law of the Land which Law of the Land is expounded by the Statute of the 25. Ed. 3.4 37. Ed. 3.18 and Sir Edward Goke in his 2. part instit fo 50.51 to be by due Processe of Law viz That none shall be taken and past upon c. by Petition or suggestion made to our Lord the King or to his Counsell undesse it be by indictment or presentment of good and lawfull men where such deeds be done in due manner or by Writ originall at the Common Law being brought in to answere by due Processes according to the common and olde Law of the Land all which c. is confirmed by the Statute that abolished the Starre-Chamber this present Parliament 17. C. R. and all Acts Ordinances Orders Judgements and Decrees made contrary thereunto or in diminution thereof are thereby declared ipso facto to be null and voide in Law and are to be holden for errors and false judgements which totally barrs and overthtowes all Presidents whatsoever to the contrary yea although the Lords had a million of them And excellent to this purpose is Sir Edward Cookes Commentary upon the 3. Ed. 1. chap. 15 but especially his Commentary upon these words viz. Or Commandement of the King First faith he the King being a body politique cannot command but by matter of Record for the King commands and the Law commands are all one for the King must command by matter of record according unto the Law Secondly When any Judiciall Act is by Act of Parliament referred to the King it is understood to be done in some Court of Justice according to the Law And the opinion of Gascoine Chiefe Justice is notable in this point that the King hath committed all his power judicall to divers Courts some in one Court some in another c. and because some Courts as the Kings Bench are Coram Rege and some coram Justiciariis therefore the Act saith by the commandernent of the King or his Justices Hussey Chiefe Justice reported that Sir John Markham said to King Ed. 4. that the King could not arrest any man for suspition of Treason or Fellony as any of his Subjects might because if the King did wrong the party could not have his action if the King command me to arrest a man and accordingly I doe arrest him hee shall have his action of false imprisonment against me albeit he was in the Kings presence resolved by the whole Court in 16. H. 6. which authority might be a good warrant to defend his said opinion to Ed. 4. The words of the Statute of the 1 R. 2. chap. 12. are unlesse it be by the Writ or other commandement of the King and it was resolved by all the Judges of England that the King cannot doe it by any commandement but by Writ or by order or Rule of some of his Courts
me to cease all such expressions unto which I replied Mr Justice Bacon I cannot make my legal defence for my self unless I speak against the non-Jurisdiction of the Lords but to shew my respect to you I shall avoyd all harsh words as much as the weightiness of my business will suffer and therefore Mr Justice Bacon I humbly intreat you I may be suffered to go on and then when I have done pass your Judgment upon my defence so I went on Jurisdiction over them as appears First in Colonel Edward King of Lincolnshire committed by the Lords to the Fleet by the power and interest of his then professed adversarie the Lord Willoughby of Parham and upon his appeal to the House of Commons in high affront to the Lords pretended Jurisdiction they released him out of the Fleet about the year 1644. Secondly Captain Macy belonging to Colonel Manwaring of the City of London being upon his guard at the Works seised upon divers letters of the Scotch Commissioners and broke them open about which the Commissioners grievously complained to the Lords who thereupon clapt the said Captain by the heels in the Fleet and my self with divers others being Solicitors for the Captain to the House of Commons they honorably to him and in high contempt of the Lords usurpations delivered him out of prison about the year 1645. and were upon debate to give him a large sum of money for his unjust sufferings Thirdly upon the Lords committing and censuring of me I appealed to the House of Commons and they received my Appeal and ordered me my liberty De die in diem to follow my Appeal which in my understanding is in Law a supersedias both to their Commitment and Judgment Fourthly Mr Richard Overton who affronted the Lords as much as any man that ever came before them and protested to their faces against their Jurisdiction over Commoners and appealed to the House of Commons for Justice against them and after that appealed to all the Commons of England and particularly to the General and the whole Army and yet notwithstanding the Lords approved of his protestation c. against them by delivering him by their special order out of the prison of Newgate without over-ruling him or punishing him or his stooping to them Fifthly his Wife and his brother Thomas Overton walking in some measure in his steps were justified therein by the House of Commons in receiving their Appeals yea and by the Lords themselves by delivering them without any punishment or judgment out of prison and without any their stooping or submitting to them Sixthly these very proceedings were the case of Mr William Larner Book-seller his brother and maid so that laying all the premises together it is undeniably evident that the present House of Lords have not the least Jurisdiction in the world over me or the meanest Commoner of England in any case whatsoever for if not in Treason the highest much less in Misdemeanors the lowest and therefore all their fines upon b Here I was necessitated by reason of the Judges often falling foul upon me to express my self in general words in this manner and therefore all their fines upon any of the Commons of England for not obeying their Warrants or Orders in order to tryals before them and refusing to kneel at their Bat in contempt of their Jurisdiction are illegal and null and voyd in Law and all those Goalers Officers or Ministers that put them in execution are subject in Law to make the party molested satisfaction for their wrongful molestation Sir John Maynard Sir John Gayer Alderman Adams Alderman Langham and Alderman Bunce for refusing to kneel at their Bar are illegal and voyd and null in law and reason both for all the Lords proceedings with them from first to last are coram non Judice and the Lieutenant of the Tower c. liable at Law to make them satisfaction for his unwarrantable executing of their illegal and unbinding Orders and Warrants upon them And indeed to speak the truth of the arbitrary and tyrannical proceedings of the House of Lords they are so illegal and irrational c Here again the Judges interrupted me and told me they must not hear such language of the Lords and therfore prest me to keep close to my exceptions against the return or else they could not let me go on so after I had expostulated it pretty well with them and being in an extream longing desire to come to the main pinch of the business very well knowing I had a smooth but yet a sharp sting for them in the conclusion I told them at their commands I would at present so far obey them as skip over part of my matter and did it to the next line where you shall find this mark ☞ that to set them up in the way they have lately gone in is to pull down all the Judicatures of the Kingdom and to destroy all the Laws of the Land in the destruction of which there is a perfect levelling of meum tuum which is totolly overthrown thereby and it is also a re-edifying of an arbitrary tyrannical unlimited and unbounded Government worse then Empsons and Dudleys Straffords or Canterburies for which yet they all lost their lives many stories higher then ever the Star-Chamber High Commission or Councel Table were which yet were arbitrary enough as appears by the Acts made 17. Car. Rex for abolishing them and indeed it behoves all the rich men of England well to look about them in reference to the Lords For if a company of men by vertue of their being made Peers by the King or his will and prerogative may at their pleasure and wills without all shadow of Law or Justice fine one Commoner of England more then he either is or ever was worth as they have done me upon whom they have set a fine of 4000 l. by the same rule of right reason and Justice they may at their pleasures rob all the rich men of England by Fines of all that ever they are worth yea and by the same reason and justice share it and divide it amongst themselves and so have better places abundantly of it then ever the Earl of Dorset had by being a privy Counsellor and Judg of the Star-Chamber which yet if some that well knew him belie him not was worth many thousand pounds per annum to him in an underhand way and besides if the Lords can persevere and hold on as they have lately begun the King was very unwise to call a Parliament and of and from them to seek for subsidies seeing the workmanship of his own hands the Lords by vertue of their having his prerogative stamp upon them is able to fine by their wills a Commoner of England more then he is worth and therefore may much more legally fine all the Commoners of England at their pleasure a quarter half three quarters or all they are worth and so fill the Kings or their own
of Justice where the cause dependeth And saith Bracton the King can doe nothing but what he can doe by Law So as saith the Lord Cooke the command of the King is as much as to say as by the Kings Courts of justice for all matters of Judicature and proceedings in Law are distributed to the Courts of Justice and the King doth judge by his Justices 8 H. 4. fol. 19. 24. H. 8. chap. 12. and regularly no man ought to be attached by his body but either by proces of Law that is as hath been said by the Kings Writs or by Indidctment or lawfull warrant as by many Acts of Parliament is manifestly inacted and declared which are but expositions of Magna Charta and all Statutes made contrary to Magna Charta which is Lex terrae from the making whereof untill 42 Ed. 3. are declared and inacted to be void and therefore if this Act of Westminster 1. concerning the extrajudiciall commandement of the King bee against Magna Charta it is void and all resolutions of Judges concerning the coÌ„mandement of the King are to be understood of judiciall proceedings a part insti fo 186.187 Therefore Mr. Justice Bacon it is to no purpose for you to tell me I am committed by a higher Court and therefore you cannot legally deliver mee for I aver unto you and have already sufficiently proved it that I am commitmitted contrary to Law and Justice and therefore you being Judges of the Law and not of Presidents grounded upon will and pleasure You are to take notice of nothing but Law and therefore I demand and require my liberty at your hands as my undoubted right and due by Law which you can neither in justice honour nor conscience deny unto me But admit the Lords to be a superiour Court of justice to the Kings Bench in some cases yet if they walke beyond their bounds and limits set them by the Law and meddle with that which by Law they have no Jurisdiction of in that case they are no Court of Justice either to you or me but a company of despisers and contemners of the Law all whose actions and decrees made and done in such cases are but meere affronts unto the Law and unvalid and unbinding either to you or me or any other man in England in disobedience to which they by Law are not capable of a contempt or affront nor cannot legally punish any in such a case either with fine or imprisonment as for instance First if a court of SESSIONS which is a Court in many cases by Law questions me for my Freehould and I give them contemptuous words for medling with that which they have no Jurisdiction of they by Law can neither fine nor imprison me therefore Secondly the same holds good in the COMMON PLEAS which is an unquestionable administrative Court of Justice in divers cases yet if they go about to hold plea of murder before them if the party refuse to answere them It is in Law no contempt of the Court And if the Court shall therefore fine and imprison him it is illegall erronious and unbinding because in Law they have no Jurisdiction of such cases Thirdly and pertinent to this purpose is BAGGS CASE in the 11. Part of Cooks Reports who being summoned before the Mayer of Plimoth in open Court called him cozening Knave and bade him come kisse c. For which the Mayor Disfranchised him and it was resolved in Law that the the Disfranchisment was illegall and the reason of is was because it was not according to Law for that the Mayor in Law had no power to doe it Fourthly sutable to this is the complaint of ARCHBISHOP BANCROFT and the Judges answer to it which said Archbishop in his 22. Article to the Lords of the Privie Counsell in the 3. of King James complaines against the Judges of the Courts of Justice in Westminster Hall for affronting the actions proceedings and Censures of the High Commission Court which was erected by Act of Parliament viz. 1 Eliz. and had power by King Iames his Letters Patents to Fine and IMPRISON and yet as he complaines as you may read 2 Part. instit fo 615. 4 Part. instit fol. 335. The Judges were growne to that innovating humor of late that whereas certaine lewd persons two for example one for notorious Adultery and other intollerable contempts and another for abusing of a Bishop of this Kingdome by threatning speeches and sundry rayling tearmes no way to be endured were thereupon fined and imprisoned by the High Commissioners till they should enter into bonds to performe further orders of the said Court the one was delivered by HABEAS CORPVS out of the Kings Bench and the other by a WRIT out of the Common Pleas and sundry other prohibition have been likewise awarded to His Majesties said Commissioners upon these suggestions that they had no authority to fine or imprison any man c. Which practices and doings the Judges in their answers thereunto justifie to be legall and no more then that which they are bound unto by their Oath for that the high Commission had gone beyond the legall power of their jurisdiction having no power by law to fine and imprison in those cases and therefore the Law being the surest Sanctuary that a man can take and the strongest fortresse to protect the weakest of all it ought not to be denied to the meanest man that demands it against the greatest seeming legall oppressor that act of violence or wrong being most hatefull of all others when it is done by uncontinuance of justice and therefore that man which legally indeavours deliverance from it ought from the judges of the Law by Magna Charta to have it freely without sale fully without any deniall and speedily without delay in which regard the aforesaid Judges did not only justifie their forementioned legall practice but also fall very foule upon the Arch-Bishop c. for taxing the Judges and Iustice of the Kingdom confidently averâ—ing that for lesse scandalls then his c. in taxing the Iustice of the Kindow divers have been severely punished And Sir Edward Cooke in the 4 part of his institutes Chap. of the high Commission Court in causes Ecclesiasticall fo 331.332.333.334 335. instances divers others that for notable Ecclesiasticall crimes were fined and imprisoned by the high Commissioners and upon demanding their right from the Judges of the Courts of Justice in Weslminster Hall they were relieved and released by them by the strength of those nerves and sinewes of the Law Prohibitions and Habeas Corpusses But above all the rest that he there mensions Iohn Simpsons case in the 42. Eliz. is the most remarkable to my purpose which Simpson being accused for committing adultery with the Wife of Edward Fuste over which case by Law the high Commissioners had Iurisdiction whereupon the high Commissioners issued out there warrent to Richard Butler Constable of Aldrington in the County of Northamton for
me that now before them I had said for my self because my adversaries were transcendantly pocent who by their wills and pleasures had in some kind destroyed men of more power and greatnesse then all the Lawyers at the Bar and therefore Sir though I am acquainted with some Lawyers that sometimes plead at this Bar. yet peradventure my respects and obligations may be such unto them that it cannot stand with honour justice or conscience for me to desire them to plead my cause seeing I am confident they cannot do it with safety and for me to expect that from them or put that upon them that in mine owne conscience I do verily believe will be their ruine in their practise and lively hoods when I am not able in any reasonable manner to requite them I should in my owne thoughts render my selfe the basest and unworthiess of men Whereupon Mr. Justice Bacon begun to speake and to make a kind of reply or answer unto divers of the things I had infisted upon and told me that Sir Edward Cooke in the 4. Part of his instituts whom he did see I had very much studied saith That no inferiour Court could meddle to question Judgements of Parliament and after a pretty large speech told me I was committed upon a centence from a Superiour Court whose judgements by Law they neither were able nor could controule and therefore must of necessity remand me back again and after he had done I replyed Sir it is true the Judgements of Parliament is not to be questioned by inferiour Courts alwaies provided they meddle with that which by Law appertaines to the Judgement of the Parliament which the executing of Lawes in the Originall Judgeing and desiding of deferences doth not the least And besides Mr. Justice Bacon you doe not I hope in Law Judge the Lords House singly or the House of Commons single to be the Parliament true it is sir severall statutes in Queene Elizabeths time as the 27. Chap. 8. 31. ch 1. provides That if any find himselfe agreeved by false judgements in the inferior Courts he shall if he please by a Writ of Error sue in the high Court of Parliament which I cannot beleeve in Law is meant the Lords House *âŽ* And it is the most irrationall thing in the world to say that legally no Law can be binding but that which is made by the consent of the King Lords and Commons and yet to prefor a single judgement of the Lords made without all forme shaddow colour or pretence of Law above all the Acts of Parliament made for 3. or 400. yeares together for this I will offer to all the Lawyers in England and challeng them to shew me one Statute or a peece of a Statute to justifie the Lords proceedings against me in Law and I will be willing to lose my head and to bee cut in ten thousand peeces and besides it is most irrationall for the Lords who never pertended to any power but what they derived from the King to immagine or go about to make the world beleeve that they can by their wills destroy all the Lawes of England as in their dealing with me they have done when the King their fountain of power can doe no Judiciall action but by his Courts of Justice and that in the legall method manner or processe of the Law although by Law a thousand times more is given and instated into him then unto all the Lords of England and for the truth of this see the 2. part inst f. 168 186. 187 yea if the King imprison me illegally by his owne Warrant either in matter or form I have my remedy against him at law as appears by the Act that abolished the Star-Chamber and therefore it is the height of erationally to conceive or say that the Lords will shall be Lord Paramount above the will of the King their Fountain and Creator and the power of the Law which is above Him from whom they derive all they have or can pretend vnto and I am sure the law tells me that in the Courts of Justice which is established and bounded by the law and is administred adjudged and executed by sundry Judges and Ministers of the Law is betrusted a full and ample power for tryall of property of lands and goods and for the conservation of the people of this Realm in peace and quietnesse but I am sure by the Judges remitting of me back to prison there is a failer of Justice which the Law abhors and an insufficiency in the Law to deliver me from destruction by lust will and pleasure and therefore without dispute slaves are the people of Eng. in the highest and slaves they must continue if they spedily rouse not up their spirits stand stifly for their rights single for the further and due examination of the said judgement in such manner as is used in erroneous judgments in the Court of Kings Bench but the law gives not the Parliament much lesse the single House of Lords the least cognizance in the world originally to meddle with any thing betwixt party and party and if they doe I am sure by the law in force at this day it is corum non judicii but the Lords originally summoned me to their Bar be for any charge exhibited or any indictment proferred or any visible complanant or prosecutor appearing and their high commission and Spanâ—sh Iâ— quisition-like examined me upon interrogatories and so committed me to prison for which they have no shadow of ground in law Whereupon Mr. Justice Roll stept up confirmed that which his Brother Bacon had already said telling me that the Chancery and the Court of Admirals proceedings were diverse from those statutes I had alleadged as well as the proceedings in Parliament were and yet were Lex terrae and it is positively said he the law of the Land that an inferiour court as ours is cannot reverse the judgment of a superiour Court as the Lords are which we must of necessity do if we should release you which we cannot doe if we would without medling with the merit of the cause from the beginning and then the way ought to be by writ of Errour which said he will not lye in this Court in a Judgment given in the Lords House and therefore you must rest content it had been well for you you had pleaded these things before the Lords in your plea there aaginst their jurisdiction Sir said I I did so and they sent me to prison therfore not only so but in Newgate close imprisoned me therefore and would not suffer my wife to come into the Prison yard so much as to speak with me I also appealed to the House of Commons and solely put my selfe upon their Justice and Judgement but I sound them for almost these two years together deaf both unto Justice Law and reason and now as my last legall refuge I come to you after I have been almost two years in
Prison for nothing as clearely appeares by the whole return which only consists in generals generals are no crimâ— in Law therefore Sir J beseech you tell me whether the Law of England be so imperfect that it hath provided no remedy to preserve a man from destruction by lust will and pleasure but if it have not then Sir I must ingenuously tell you so much am I an Englishman and free from the principals of slavery that though I have suffered and undergone with some kind of patience almost two yeares imprisonment without any cause but onely by the power of lust will and pleasure that I professe before you both and this whole auditory that were I this day put to my choise I had rather chuse to combate one by one with 20. of the stoutest men that steps upon English ground though I were sure to bee cut in a thousand pieces thereby then willingly to be Captived in Prison two yeares longer by the power of Lust will and pleasure without the hopes of any remedy but from those that tyrannize over mee FOR TO BE A SLAVE IS BELOWE ME or any man that is a man but if this be good Law which you declare unto me then perfect slaves are we indeed Again Sir is for that Law of Parliament you talk of I had thought England had had but one Law to be governd by hat that had bin a visible and a declared Law and not a Law in mens breasts not to be knowne till they please to declare it and then when they do it shall every day crosse it self and ebbe and slow according to successe Sir this is no Law at all and therefore here can bee no transgression against it but if you mean a Law in being but yet kept so close in holes and corners that none can come to see it or read it but only the executors of it this is as bad as no Law at all and as good living in Turky as under such an unknown Law But Sir to lay aside all these dubious disputes about Jurisdiction and Parliament Laws and Laws in the ordinary Courts of Justice and suppose the Lords have a power of Jurisdiction in the present case to sentence me if really I had committed a crime and suppose but no more that you are an inferiour Court and cannot legally reverse or take cognizance of their Judgments yet I desire to keep you close to my return which shew clearly that I am imprisoned for nothing and thereby rondred an innocent and just man and therefore I demand positively your judgments in that whether it be so or no And secondly whether the Law hath not provided a remedy for me and for my deliverance from under any power in England in case I be imprisoned by them for nothing unto which as I remember both the Judges spoke to it in the foregoing manner and if I wrong them not which I would be very leath to do in the conclusion of their spaeches both of them ingenuonsly confessed that by my return it did appear I was imprisoned without any crime in law laid unto my charge but yet being committed by a superiour Court the Lords and that upon a sentence they could not in Law relieve me Whereupon I earnestly pressed to be heard but a few words more which was granted and I very soberly said Mr. Justice Bacon I have been forth in service to fight for the Laws and Liberties of England against those men that the Parliament made me and divers others believe would have destroyed them and I was I confesse very zealous to presse others to do as I did But Sir had it then been told me by those that set me at work or had I in my own breast believed iâ— that the issus of all our fightings should have beene contured in making the people of the Kingdom slaves or that all our fighting should have contributed to nothing so much as to inable a company of men sitting here at Westminster called LORDS and COMMONS arbytrarily by their lusts wils and pleasures to have raigned and ruled over us I would have been so far from killing of Cavaseers that I would rather with my own hand have beene my own executioner then to have murdered men to satisfie the lusts of others But seeing it is as it is and that I have been so grosly mistaken in these mens promises oathes Declarations and ingagements which now they judge as nothing but have throwns them all behind their backes I shall recant my error in beleeving of them and perswading others to doe iâ— and shall desire to be setled in that which is truth which is now to beleeve them noemore and instead of being zelous to provoke the People to stand up for there Lawes at their commands I shall be very sorry for that error or mistake or I clearely see thore is none in England of any more strength then a piece of soft wax nor the People by there great Lordly promises were never intended other then to be Vassels and slave * Yea the most miserablist of slaves bâ—ing first in sabjection to a Statute Law and if they transgresse that then the Judges of the Law are ready to distroy both life and Estate therefore secondly to a Law of Ordinances and if they transgesse that which is sufficiently contradicttory in it selfe then they shall by one Arbitrary Committee or other hazard the lossâ— of all they have with out any witnesses sworne against them or any Jury pinnelld or it may be any complaint in writting preferrd against them but they shall be distroyed by the will and descration of the Committes for such proceedings contrary to the fundamentall Law of the Land both Dudley and Eâ—son Privie Couâ—cellers were hanged though they had an Act of Parliament to autherize their doings as appears 2. part insti fo 51.3 part insti fo 2â—8 and 4. part insti fo 41.196.197.198 but yet if a man be never so observiant of both the Law and Parliament Ordinances yet thirdly Parliament Lords and Commons have a Law paramount above them both and which as pleasure shall null them both and neither of them shall be any protection unto you and that it their law of will lust and pleasure more exercised put in use by them then both the former so that of necessiâ—ie slaves in the highest are all Englishmen now being under 3. distinct Lawes for their destruction but can injoy the benefit of never a one for their preservation and therefore for the Parliament to make Judges of the Law to executed is but a mooking and cheating of the people for they have left them none to execute but have superseded it every line with the Law of thir lusts wills and pleasures for all their lying promises in all their Declarations to the contrary therefore all ye true hatted Englishmen awake awake looke wel about before the midnight of slavery sease upon you and therefore Sir I shall now