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 instâ—nter super fidelitatibus ligeantiis dicto Dâ—m Regi debitis per praefaruÌ„ SenescalluÌ„ ab inferiori usque ad supremum separatim examinati dicunt quod Wil. Dom. Dacre nox 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 cannot 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. 130. is made manifest out of all which we gather that a Nobleman hath this priviledge of tryal as well per lege terra as by this Charter and that anciently legale judicium parium or lawfull tryall of Peers for all manner of persons aswell Noblemen 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 terrae 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 froÌ„ 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 indicium 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 touchiug 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 ali other bookes prove And to leave every man without
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-Register-Book of witnesses fol. 64. a Writ directed to the Sheriffe Adcapiend impugnatores Juris Regis ad ducendum cos 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 Magnae Chartae 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 Wesim 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 birth-right 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 sentece 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 Westrn 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 ARTICLES Exhibited before the Lords in Parlia-ment assembled by Nathanael Finch Knight and one of his Majesties Ser-geants at Law against Lieu. Colonell John Lilburne for high Crimes and Misdemeanors done and committed by him I. VVHereas rhe Right Honorable 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 where as 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
their liberty then whlle 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 hertditary Kings the Nobility began to take upon the the rule of the people by the exercise of the like or greater tyrany the 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 ulso 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 Horn 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 faith 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 of 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. 140. 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 Neitherwas the law tender of the persons of Innocents bailable
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 she ll 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 thisis 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 desseising 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 contra hoc secerit fiat Vic. tale brev Rex Vic. salute 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 course 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
by him contrived and caused to be printed and published intituled The just Mans justification Or A Lettnr 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 Lee 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 II. 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 the 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 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 Exceter which it may be may in time coole his furious endeavour to inflame the free people of England III. 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 of 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
f. 10. Be tit Parl. 42. We find that in Parliament the King would that I. S. shouldbe 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 stature 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 stature 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 th 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 ad jus 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 objestion made that there is matter of scandall against a Peer of that House contained in Mr. Lilburres 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. Coâ—â—sans 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 â—f 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 Defnedants 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 〈◊〉 he 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 wheras 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 keeping 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 procutes 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 questistion 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 hâ—arts 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 coÌ„sent how much more and how much greater hardnesse of heart is it that a woman innocent and