there be greater ignorance in any man that professeth the knowledge and understanding of the Law thus to do or greater malice in the most malicioust of men then in this empty Tub Prideaux Now for the more clearer confirmation of my foregoing observations or the most of them I shall desire the Reader to cast his eye upon the third part of Cookes Institutes Chapters high Treason petty Treason which book is published by the house of Commons this Parliament for good Law but I shall speciall recommend to the Reader as his speciall guide in case he come into Mr. Lilburnes straits his Chapter of Councell learned in Pleas of the Crown follio 137. where he speaks expresly thus Where any person is Indicted of Treason or Fellony and Pleadeth to the Treason or Fellony not Guilty which goeth to the Fact best known to the Party It is holden that the Party in that Case shall have no Counsell to give in evidence or alleadge any matter for him but for as much as Ex facto Jus Oritur it is necessary to be explained what matters upon his Arraignment or after not Guilty Pleaded he may alleadge for his Defence and pray Counsell Learned in the Law to utter the same in forme of Law And first upon the Arraignment what advantage he may take in case of High Treason by the Common Law if it be for compassing the death of the KING he may alleadge that in the Indictment there is no such overt act set down in particular as is sufficient in Law or the like For it is to be observed that in no case the party Arraigned of Treason or Fellony can pray Counsell learned generally but must shew some cause Secondly In case of High Treason by force of any Statute he may alleadge that the Indictment being grounded upon a Statute the Statute is either mistaken or not pursued Thirdly Of what matters he may take advantage equally concerning them both He may alleadge that there was not at the time of the Indictment of High Treason two lawfull Accusers that is two lawfull Witnesses Fourthly Of what matters he may generally take advantage in all cases of Treason and Fellony He may alleadge that the offence is not certainly alleadged in respect of the matter time and place or that he is not rightly named or have not a right addition or that the offences were done before the last generall pardon Fifthly After he hath Pleaded Not Guilty what advantage he may take upon the evidence He may alleadge that he ought to have two lawfull Witnesses in case of High Treason to prove the fact against him Sixthly He may take advantage in Arrest of Iudgement if the verdict be found against him That the triall came not out of the right place as it fell out in Arundels case convicted by a Jury of wilfull murder he informed the Court that the Iury that tried him came out of a wrong place and thereupon he had counsell learned assigned him who indeed found that the Venire facias was mis-awarded and the Court thereof by the Councell being informed judgement was stayed And that the prisoner may alleadge these or the like matters it is evident because for every matter in law arising upon the fact the prisoner shall have Councell learned assigned him Also it is lawfull for any man that is in Court to informe the Court of any of these matters lest the Court should erre and the prisoner unjustly for his life proceeded with And the reason wherefore regularly in case of treason and felony when the party pleads not guilty he was to have no councell was for two causes First for that in case of life the evidence to convict him should be so manifest as it could not be contradicted Secondly the Court ought to see that the Indictment Triall and other proceedings be good and sufficient in law otherwise they should by their erronious judgement attaint the prisoner unjustly So far Sir Edward Cook But now if any should say all this availes nothing in case the Parliament takes away Juries and sets up Arbitrary high Court of Justice as already in their Act for the Earle of Bedfords drayning of the Isle of Ely and they have done To which I answer It 's true it avails nothing indeed if they so do but it is impossible they should my reasons are first because it is the most equallest and justest way of triall in it selfe simple considered that is in the whole World and hath been of so long continuance in this Nation that all the changes of turning the Nation upside down could never alter it either by the Conquest of the Romans Saxons Danes or the late Normans and though since William the Conquerours time some Princes and their Fathers have attempted the Alteration and overthrow of that just way of triall by twelve men as the Neighbour-hood yet it hath proved very fatall destructive to those that were busied in it witnes Empson Dudly's losing their heads as Traitours therefore although they had an Act of Parliament viz. 11. H. 7. chap. 3. to bear them out in what they so did and therefore it is un-imaginable in meer policy the Parliament will run the hazard of such an attempt the which when it is executed the people are as absolute slaves as possible can be and have no probable certainty either for their lives liberties or estates of which case Sir Edward Cook in his exposition of the twenty ninth chapter of Magna Charta in his second part Institutes from 51. thus saith upon the words by the Law of the Land that is to say saith he by the Law of England and hereupon all Commissions are grounded wherein is this clause To do what is just according to the Law and Custome of England and it is not said the Law and Custome of the King of England left it might be thought to bind the King onely nor the People of England left it might be thought to bind them onely but that the Law might extend to all it is said by the Law of the Land that is to say England And a little below he expresly saith against this ancient and fundamentall Law and in the face thereof I finde an Act of Parliament made viz. 11. H. 7. chap. 3. that as well Justices of Assize as Justices of Peace without any finding or presentment by the verdict of twelve men upon a bare information for the King before them made should have full power and authority by their discretions to hear and determine all offences and contempts committed or done by any person or persons against the former ordinance and effect of any Statute made and not repealed c by colour of which Act shaking this fundamentall Law it is not credible what horrible oppressions and exactions to the undoing of infinite numbers of people were committed by Sir Richard Empson and Edmund Dudley being Justices of Peace throughout England And upon this unjust and injurious Act mark that
well as commonly in like cases it falleth out a new office was erected and they made Masters of the Kings forfeitters But at the Parliament holden in the first year of Hen. 8. This Act of 11. Hen. 7. is recited and made void and repealed and the reason thereof is yielded for that by force of the said Act it was manifestly known that many sinister and crafty feigned and forged informations had been pursued against divers of the Kings Subjects to their great damage and wrongfull vexation and the ill successe hereof and the fearfull ends of these two oppressours should deter others from committing the like and should admonish Parliaments that instead of this ordinary and pretious triall by the Law of the Land they bring not in absolute and partiall trialls by discretion whose Indictment for high Treason you may read in his third part Institutes Fol. 208. and fourth part Fol. 198 199. And in the fourth part of his Institutes Fol. 37. Chapter high Court of Parliament speaking of the manner of some proceedings of Parliament in some cases of Attainder let forgetfulnesse take it away if it can if not however let it be buried in silence for the more high and absolute the Jurisdiction of the Court is the more just and honourable it ought to be in the proceeding and to give example of justice to inferiour Courts And in Fol. 39.40 ibid. he further saith and where by order of Law a man cannot be attainted of high Treason unlesse the offence be in Law high Treason by Authority of Parliament as sometime hath been used but the high Treason ought to be specially expressed seeing that the Court of Parliament is the highest and most honourable Court of Justice and ought as hath been said to give example to inferiour Courts There was an Act of Parliament saith he in the eleventh year of King Henry the seventh which had a fair flattering preamble pretending to avoid divers mischiefs which were First To the high displeasure of Almighty God Secondly The great let of the Common Law And thirdly The great let of the wealth of this Land as hereafter he saith shall manifestly appear which Act he there at large recites after which in Fol. 41. he further thus saith By Pretext of this Law Empson and Dudley did commit upon the Subject unsufferable pressures and oppressions and therefore this Statute was justly soon after the decease of Henry the seventh repealed at the next Parliament after his decease by the Statute of 1. Hen. 8. Chap. 6. A good Caveat saith he to Parliaments to leave all causes to be measured by the golden and straight met-wand of the Law and not to the uncertain and crooked Cord of discretion for it is not almost credible to fore-see when any maxime or fundamentall Law of this Realm is altered as else-where hath been observed what dangerous inconveniences do follow which most expresly appeareth by this most unjust and strange Act of 11. Hen. 7. For hereby not onely Empson and Dudley themselves but such Justices of Peace corrupt men as they caused to be authorized committed most grievous and heavy oppressions and exactions grinding of the face of the poore Subjects by penall Lawes be they never so absolute or unfit for the time by information onely without any presentment or triall by Iury being the ancient birth-right of the Subject but to hear and determine the same by their discretion inflicting such penalty as the Statutes not repealed imposed These and other like oppressions and exactions by or by the means of Empson and Dudley and their Instruments brought infinite Treasures to the Kings Cofers whereof the King himselfe in the end with great griefe and compunction repented as in another place we have observed This Statute of 11. Hen. 7. saith the Lord Cooke we have rented and shewed the just inconveniences thereof to the end that the like should never hereafter be attempted in any Court of Parliament and that others might avoid the fearfull end of those two time-servers Empson and Dudley Qui eorum vestigia insistunt eorum exitus perhorrescant My second Reason why its impossible the Parliament should overthrow Tryals by Juries is because then they should overthrow the chief declared end of all the late Warres and of the whole stream of all the chiefest Declarations now the main and principall end of all the Warres they pretended was for the Peoples Liberties and Freedoms amongst all which they reckon Tryalls by Juries one of the chiefest as clearly in their first grand Remonstrance c. appeareth and therefore it was that in their 7th Article they impeached the Earl of Strafford as a Traytor for subverting the fundamentall Lawes of the Land in giving judgement upon mens Estates without Tryalls of Juries yea and they should not onely destroy their chiefest Declarations but also the chiefest and best Lawes of the Land viz. the 29. Chapter of Magna Charta and that excellent Law of the Petition of Right as they themselves call it in their Declaration of the 17. of March 1648. page 7. And if so query whether their so doing would not be as high a breach of trust in them as ever they charged the King with and deserved as severe a punishment to be inflicted upon them as ever they inflicted upon the King for the breach of his trust 3. They cannot overthrow Tryals by Juries without an apparent and evident ruine and destruction to themselves and the whole Nation by a fresh imbroyling it again in Warres because that since they took off the Kings head for breach of his trust they have solemnly declared in two severall Declarations viz. the 9. of February 1648. and the 17. of March 1648. that they are fully resolved and shall and will uphold preserve and keep the fundamental Lawes of this Nation for and concerning the preservation of the lives prosperities and liberties of the people with all things incident thereunto and particularly that excellent Law of the Petition of Right which sufficiently establisheth Juries which good old Lawes they call page 23. the badges of our freedoms which they there say our Ancestors injoyed long before the Conquest and spent much of their bloud to have confirmed by the great Charter and which have continued in all former changes and being duly executed are the most unjust free and equall of any other Lawes in the world but if in a yeares time they should destroy both these Declarations by destroying Juries the universality of the People would took upon them as the most faithlesse persideous men that ever breathed and watch all oppertunities utterly to destroy and exterpate them as Monsters rather then men so soone to degenerate Obj. I but put the case the Prince should endeavour to set on foot a new Warre and so put the Parliament into unavoidable necessity may they not for terrour then set up a high Court of Justice as well as for the tryal of the late King Answ. No for these
Reasons first because before the late Kings death all the Lawes and process of the Lawes run in his name therefore it was not possible in the old forme to try him but now the Lawes and process of the Law run in the name of the Common-wealth of England or the Keepers of the Liberties of England 2. Before his death all binding perminent Lawes in all late ages were past by King Lords and Commons and treason was onely committable by the Letter of the Law against the King but now that is changed and the Commons become the supream Authority and so declared by their Representatives at least by those that so judge themselves and by two special Acts made by them upon which Mr. Lilburn was arraigned for Treason and printed in his Tryal page 87.88.89 c. dated the 14. of May 1649. and the 17. of June 1649. they declare it to be treason in any person that shall maliciously or advised publish by writing printing or openly declaring that the said Government is tyrannicall usurped or unlawfull or that the Commons in Parliament assembled are not the supream Authority of this Nation or shall plot contrive or endeavour to stir up or raise force against the present Government or for the subversion or alteration of the same or shall plot contrive or endeavour to stir up any mutiny in the Army or shall withdraw any Souldiers or Officers from their obedience to their superiour Officers or from the present Government or shall procure invite aide or assist any forraigners or strangers to invade England or Ireland or shall adhere to any forces raised by the Enemies of the Parliament or Common-wealth of England now it is impossible any Law can be more severe then to make words treason and therefore no necessity now can be pleaded to set up a high Court of Justice to try the arrantest Cavalier in the world who can be reputed at worst no more then a Traitor for which the Lawes declared by themselves already provides a punishment and a Cavalier is an English man and thereby by Law ought to have the priviledge of any other English Traitour and little doth men know the danger of breaking down banks or pulling up universall Land-marks though it be in cases of highest and greatest enemies which the people of Athens as Sir Walter Rawly fully declares felt sufficiently under their thirty Tyrants who had no way to introduce their tyranny upon the people but in the subversion of their Lawes and Freedoms by making examples first upon those offenders the people most hated but then a little space the Tyrant pleaded those presidents and by little and little made the people taste of the same sauce but it is hoped that now after the full alteration of the Common-wealth and Acts of Treason declared thereupon if any shall dare though authorized by Parliament to be Judges in an High Court of Justice now to take away any mans life or estate but shortly they shall lose their heads as Traitors therefore as Empson and Dudly did who had an Act of Parliament made by King Lords and Commons to bear them out and yet by vertue of it never tooke away any one mans life but onely medled with estate and as for the Earl of Bedfords Act for drayning that sets up a High Court of Justice I am confident of it upon examination it will be found some bribing Lawyer Chareman mis-informed and surprized at an house to passe it and therefore I shall now conclude all according to my promise with the Copy of Mr. Lilburns letters to the Speaker of the 1. Decemb. 1649. which thus followeth For the Honourable William Lenthall Esquire Speaker to the Knights Citizens and Burgesses assembled in Parliament These Present HONOURED SIR TRuth and Justice are two of the main attributes of God with the practises of whom he hath declared himself to be well pleased and which he will advance and set up in his own time maugre the malice of all that do oppose them Sir I know you would be thought a lover of them and out of that consideration I now write unto you So it is Sir that I am an English-man born bred and brought up and I hope so to live and so to dye and by vertue of being an Englishman I am entailed to all the Liberties and Freedomes that the Lawes and good customes of England will afford to any of her children whomsoever and besides the series of all my actions from my childhood to this very day have been constant demonstrations that I love and honour all those her just boundaries that distinguish meum and tuum that supports just Magistracy and teaches subjection her due bounds and that most equally dispenseth justicte indifferently unto all and that I hate and abhor all subverting and Levelling of the just Lawes Liberties and Freedomes thereof to any mans will whatsoever never coveting in my own private thoughts or reason any other rule to judge or bee judged by but that righteous one of Jesus Christ to do as you would be done to And because by reason of mans corruptions there is more difficulties and niceties in the Laws of the Land of my nativity and abode then there is in the plain and easie to be understood law of civill behaviour that the wife and righteous God of heaven and earth hath given and dispensed in the volumn of truth viz. the Old and New Testament to the sons of men but especially to all those that desire to approve their hearts unto him therefore I say in regard of the intricacie of the Laws of England especially in the practick part of them I have heartily laboured in my sphere and private condition as much as I could to attain unto the knowledg of so much of it as might be a safe guide unto me in my conversings with my neighbours country-men and brethren and truly it hath been my maxim that amongst men there was no safety for me but in walking in a rationall conformity to the dictates of the just and good old plain Laws of England but of late many men supposed I was mistaken and I confesse I was in great hazard of bodily destruction for doing my duty in walking in conformity to the clearest dictates that either the law of Reason which is the soveraign law of God or the clearest and most highly priz'd Laws of this Nation could dictate to a conscientious inquisitive and ingenious soul who holds it for the most indispensable maxim that ever the wise God of heaven and earth established amongst the sons of men That evill must not nor ought not to be done by any that good may come thereby But the greatest good that I can do is to be readily obedient to the pleasure will or command of him that is absolutely soveraign over both my soul and body although my body should perish in the conformity to my duty Sir I say I thought I had been safe enough when I walked by the dictates of
CERTAINE OBSERVATIONS UPON THE TRYALL Of Leiut. Col JOHN LILBVRNE IN Page 154. after an Appendex annexed by the Publisher read thus Judicious Reader It appears in the first impression of Mr. Lilburnes Tryall that in the Appendix the Pen-man professeth he hath been very indifferent in transcribing his notes without maliciously wronging either the Court or the Prisoner yet if any thing be amisse he hopes the second Edition may mend it if more exacter Copies then his can be got desiring that some man that understands the Law will take some paines to write some Observations in Law upon it and truly being at that Tryall I have done something in the particulars desired and here must adde a little more leaving the absolute compleating of it to abler pens and heads in case Mr. Lilburn had been found guilty by the Jury as to matter of fact and thereupon they had delivered up to the Judges a speciall Verdict this or the like at the Barre might have been a good Plea for him after the Court had asked him what he would say for himself why Judgement should not have past upon him he might have answered 〈◊〉 1. That Sheriffe Wilson is a Member of the Parliament and Councell of State and thereby a party in which regard the return of his Grand-Jury by him or his dependant Officers is null and void in Law and so by consequence is also their Verdict 〈…〉 ugh Justices of Gaole-Delivery and Justices of the 〈…〉 reforme and amend in open Sessions the Pannell re 〈…〉 inquire for the King by the Statute of the 3. Hen. 8. 〈…〉 12. yet this was a private or speciall Court of Oyer and â—â—rminer not an ordinary and open Sessions and therefore to put by Capt. Sweeting that was summoned by the Sheriffe and in his stead put in Thomas Smith who was not legally summoned but accidentally taken up in the Hall is expresly against the Statute of the 11. Hen. 4. Chap. 9. and the Indictment thereby is null and void to all intents and purposes as clearly appeares by the Statute it self 3. He ought to enquire whether any one of the Jury be outlawed and if any one of them were it totally nulls and makes void the Indictment and all things depending upon as is clear by 13. Hen. 4. Chap. 9. 4. He might alleadge that he conceived the Indictment was insufficient in Law and that he never heard nor saw it it being in Lattine and whether that he heard read to him in English be rightly translated he knowes not for that he knowes the Lattine tongue cannot be rendred word for word in English and therefore in Arrest or stop of Judgement he might presse that Councell learned in the Law might be assigned him and a Copy of the Indictment given them to peruse for that first there doth to him further appeare these errors in the Indictment 1. That he was Indicted in London for pretended crimes done in Surrey and Middlesex and therefore the Tryall or Jury not coming out of the right place the Indictment is void in Law See Arundels Case 2. He might alledge that he was Indicted upon a mistaken Statute which bears date after the pretended facts and therefore void in Law 3. He might alleadge that the offence in the Indictment is not certainly alleadged as to matter time and place and that he had not a right addition or title all which in Law ought to be 4. Alledge that the Statute whereupon the Indictment of treason is grounded is insufficient in Law to ground a Judgement upon for that it saith that whosoever doth such an act shall suffer the paines of death c. as in case of High Treason hath been used now the paines of death were not used in cases of treason at the making of that act nor for divers yeares before read the margent before in page 91. 5. Alleadge that in the Indictment it is not alleadged against whom this Treason is committed onely against the Government and there may be severall sorts of Governments or the Keepers of the Liberties of England but who they are or where they are to be found is not named and it is impossible he can owe Allegiance to those unknown individua vaga and where there is no Allegiance due there no Treason can be committed in Law for no man can owe Allegiance to an unknown man or unknown number of men or to an Vtopian Common-wealth 6. He might alleadge that there was not two plain and evident Testimonies to each of those facts upon which the Grand Inquest found the Bill and therefore their Verdict is void in Law 7. He might alleadge the Inquest in Law could not return billa vera a true Bill unlesse they had found all the parts of the Bill to be true which they never did nor possibly could do in regard there was not one amongst all the Grand Inquest that could exactly read and English or understand the Bill so there was errors enough in the finding of it 8. He might alleadge that in the body of the Indictment it is said fight no more for the men in present Power and the next words saith meaning the present Government this cannot be good in Law for that men are Governours and not Government neither doth he name the men in present power and there are severall kinds of Powers yea the Army as properly as the Parliament may be called present Power 9. He might alleadge that Treason signifies a breach of Trust and comes from Trahit which is treacherously to betray now his trust which was his liberty his freedom and his protection by the Law was by his imprisonment in March last for treason taken off or taken away from him and therefore having then no trust upon him as in his imprisonment he had not he could not in that condition commit Treason but all the things laid unto his charge by Mr. Prideaux the Attourney Generall in the Indictment are facts done or pretended to be done after his commitment to prison for Treason which facts or actions are all void in Law and cannot in the least in the eye of the Law come within the compasse of Treason which is treacherously to betray which cannot be done where there is no trust but in Mr. Lilburnes imprisonment there was no trust upon him and therefore in that condition he could commit no Treason and the highest agravation of the Attourney Generalls ignorance and malice it was in that he in his Prosecution of Mr. Lilburne evads or passeth by all those things pretended to be done by him for which Mr. Lilburne was first committed yea and sends for him about seven or eight Moneths after his first imprisonment to come to him in order to his Tryall for Treason and then friendly in shew discourseth with him and afterwards at his Arraignment for his life brings that discourse or some part of it as the principall Facts of Treason or evidence for Treason that he had against him therefore can
was the Treasurer and I must go to him for my admittance and to his chamber I went and he being abroad I acquainted Mr. Raddon his servant with my businesse and paid 3l 6s 8d to him who desired me in the afternoon to call and I should have my admittance under his Masters hand who it seems refused it and thereupon I waited upon Mr. Prideaux himself the next morning and found him something waspish and did at present positively deny me admittance making thereby the quarrell personall betwixt him and me in denying me a free and legall man of England liberty to study the Law of the Land of my Nativity in the place appointed for that end although if I transgresse it and that through ignorance Mr. Prideaux in all likelihood will be as he hath been already the irrationall malicious prosecutor of me to take away my life Oh Sir will not rationall and unbyassed men blush at the knowledge of the irrationality of this malicious man whom I could easily strip and whip to the purpose with my pen but I have no desire to do it if by this Epistle I can avoid it and enjoy my right And therefore Sir I entreat you to oblige me so far unto you as effectually perswade Mr. Prideaux not further unavoidably to necessitate me to that which I am sure will be neither honourable for him nor much profitable for my self For the Law by Gods assistance I am resolved to study unlesse Mr. Prideaux will get an Act made that I shall not be hanged for transgressing of it And truly Sir I shall further proffer this to Mr. Prideaux that he may clearly see I have no minde to quarrell with him unlesse he force me to it that if he please to be an effectuall instrument speedily to help me to my mony which is really my propriety now detained from me and destroyed by Sir Arthur Haslerigge I will trouble Mr. Prideaux no more for my Admission at the Temple or if he will not do that then in regard of my acquaintance there which I hope will much help and teach me and the conveniency of the place in the nighnesse of it to my family I desire he will let me for my money peaceably enjoy a chamber from those I can take it of or buy it from to study the Law in a private way for my own content and recreation and I will neither trouble him nor any of his Associates any more for my admission into their Society of the Temple And in the first place I earnestly beseech you to let me enjoy your utmost assistance for the procuring of my money down upon the nayl either from Sir Arthur Haslerigge or from the estate of the late Lord Coventry my chiefest unjust Judge upon whom it was once decreed and ordered to be fixed upon And truly Sir in pure justice I know not so clearly elsewhere to seek it as from one of their two hands Sir I beseech you seriously ponder and consider of my condition which truly and unfeignedly is this I must either sit down in peace and silence and so I and mine must unavoidably perish for want of my mony which is my earthly all or else I must nolens volens be compelled to bussle again for it though I apparently run the hazard of being hanged thereby judging it more righteous Naboth-like to perish in the preservation of my own right then be my own Executioner in suffering my self to starve Sir for your promised speedy and hearty assistance in these particulars I shall be very much obliged to remain Sir Yours in all just wayes heartily to serve you individually or generally JOHN LILBVRN From my habitation at Winchester House in Southwark the 1. of Decemb. 1649. I shall make bold to wait upon you two or three dayes hence for your answer herein