as long as ye shall be Iustice nor robes of any man great or small but of the King himself And that ye give none advice nor councell to no man great nor small in no case where the King is party And in case that any of what estate or condition they be come before you in your sessions with force and armes or otherwise against the peace or against the forme of the Statute thereof made to disturb execution of the common law or to menace the people 2. Ed. 3. 3. that they may not pursue the Law that yee shall cause their bodies to be arrested and put in prison And in case that be such that yee cannot arrest them that ye certifie the King of their names and of their misprision hastily so that he may therof ordain a convenable remedy And that ye by your selfe nor by other privily nor apertly maintain any plea or quarrell hanging in the Kings Court or elsewhere in the country And that ye deny to no man common right by the Kings letters not none other mans not for none other cause and in case any letters come to you contrary to the law that ye doe nothing by such letters but certifie the King thereof and proceed to execute the law notwithstanding the same letters And that yee shall doe and procure the profit of the King and of his Crown with all things where ye may reasonably doe the same And in case ye be from henceforth found in default in any of the points aforesaid ye shall be at the Kings will of body land and goods thereof to be done as shall please him as God you help and all Saints The 20. of Edward the 3. Chap. â— fol. 14â— The Iustices of both Benches Assise c. shall doe right to all men take no fee but of the King nor give councell where the King is party FIrst we have commanded all our Iustices that they shall from henceforth doe equall Law and execution of right to all our subjects rich and poore without having regard to any person and without omitting to doe right for any letters or commandement which may come to them from us or from any other or by any other cause And if that any letters writs or commandements come to the Iustices or to other deputed to doe law and right according to the Usage of the Realm in disturbance of the Law or of the execution of the same or of right to the parties the Iustices and other aforesaid shall proceed and hold their Courts and processes where the pleas and matters be depending before them as if no such Letters Writs or Commandements were come to them And they shall certifie us and our Councell of such Commandements which be contrary to the Law as afore is said And to the intent that our Iustices should doe even right to all people in the manner aforesaid without more favour shewing to one then to another we have ordained and caused our said justices to be sworne that they shall not from henceforth as long as they shall be in office of Iustice take fee nor to be of any man but of our self and that they shall take no gift nor reward by themselves nor by other privily nor apertly of any man that hath to doe before them by any way except meat and drink and that of small value and that they shall give no councell to great men or small in case where we be party or which doe or may much us in any point upon pain to be at our will body Lands and goods to doe thereof as shall please us in case they doe contrary And for this cause we have increased the fees of the same our Iustices in such manner as it ought reasonably to suffice them St. 2. Ed. 3 8. St. 11. R. 2. 10. Regist fo 1â—6 The 25 of Edward the 3. Chap. 8. fol. 155. None shall be bound to find men of armes but by tenure or grant by Parliament ITem it is accorded and assented that no man shall be constrained to find men of Armes hoblers nor Archers other then those which hold by such services if it be not by common assent and grant made in Parliament St 1. Ed. 3. 5. St. 4. H 4. 13. The 28. of Edward the 3. Chap. 7. fol. 172. No Sheriffe shall continue in his office above one yeare ITem it is ordained and established that the Sheriffe of the Counties shall be removed every yeare out of their offices so that no Sheriffe that hath been in his office by a yeare shall abide in the same office the year next following 2. H. 7. fol. 5. And that no Commission be made to him thereof or renued for the same yeâ—â—e following St. 14. 8. 3 7. 32. Ed. 3. 9. 23. H. 6. 8. Rast pl. fo 202. The 34. of Edward the 3. Chap. 4. fol. 180. What sort of people shall be returned upon every Iurâ— ITem because that Sheriffes and other ministers often doe array their panels in maner of Inquests of people procured and most far of from the Counties which have no knowledge of the deed whereof the Inquest shall be taken it is accorded that such panels shall be made of the next people which shall not be suspect nor procured And that the Sheriffes Coroners and other ministers which doe against the same shall be punished before the Iustices that take the said Inquest according to the quantity of their Trespasse as well against the King as against the party for the quantity of the damage which he hath suffered in such maner St. 21 〈◊〉 1. St. 28. E. 1. 9. 20. Es 3. 6. 42. Ed. 3. 11. Regist fo 178. Regist pla fo 117. THe 36 of Edward the 3. chap. 10. fol. 186. A Parliament shall be holden once in a yeare ITem for the maintenance of the said Articles and Statutes and redresse of divers mischiefs and grievances which dayly happen d Parliament shall be holden every yeare as an other time was ordained by a Statute St. 4 Ed. 3. 14. The 36. of Edward the 3. chap. 15. fol. 187. Pleas shall be pleaded in the English tongue and inrolled in Latine ITem because it is often shewed to the King by the Prelats Dukes Earles Barons and all the Comminalty of the great mischiefes which have happened to divers of the Realme because the Lawes Customs and Statutes of this Realme be not commonly holden and kept in the same Realm for that they be pleaded shewed judged in the French tongue which is much unknown in the said realm so that the people which do implead or be impleaded in the Kings Court and in the Courts of other have no knowledge nor understanding of that which is said for them or against them by their Serjeants other Pleaders And that reasonably the said Lawes and Customes the rather shall be perceived and known better understood in the tongue used in the said Realm by so much every man of the said Realm
his Ward foure pence And that the Sheriffe under Sheriffe Sheriffes Clerke Steward or Bailiffe of Franchise servant or Bailiffe or Coroner shall not take any thing by colour of his office by him nor by any other person to his use of any person for the making of any return or panell and for the copy of any panell but foure pence and that the said Sheriffes and all other officers and Ministers aforesaid shall let out of prison all manner of persons by them or any of them arrested or being in their custody by force of any writ bill or warrant in any action personall or by cause of indictment of trespasse upon reasonable sureties of sufficient persons having sufficient within the counties where such persons be so let to bail or mainprise to keep their dayes in such places as the said writs Fitz N. B. fo 251. B. Plow fo 60. Coke l. 10. fo 101. 37. H. 6. fo 1. Plow fo 60. Dyer fo 118. 323. 364. 7. Ed. 4. fo 5. Coke li. 3. fo 59. li. 10. fo 99. Rast pla fo 371. 31. El. 9. Dyer fo 25. bels or warrants shall require Such person or persons which shall be in their Ward by condemnation execution Capiat utlagatum or excommunicatum surety of the peace and all such persons which be or shall be committed to ward by speciall commandement of any Iustices and vagabonds refusing to serue according to the forme of the Statute of Labourers only except And that no Sheriffe nor any of his officers or Ministers aforesaid shal take or cause to be taken or make any obligation for any cause aforesaid or by colour of their office but only to themselves of any person nor by any person which shall be in their Ward by the course of the law but by the name of their office and upon condition writen that the said prisoners shall appeare at the day contained in the said writ bill or warrant and in such places as the said writs bills or warrants shall require And if any of the said Sheriffes or other Officers or Ministers aforesaid take any obligation in other form by colour of their offices that it shall be void And that he shall take no more for the making of any such Obligation Warrant or precept by them to be made but foure pence And also that every of the said Sheriffes shall make yearly a deputy in the Kings Courts of his Chancery the Kings Bench the Common Place and in the Exchequer of Record before that they shall return any Writs to receive all manner of Writs and Warrants to be delivered to them And that all Sheriffes under Sheriffes Clerkes Bailiffes Gaolers Coroners Stewards Bailiffes of Franchises or any other officers or ministers which doe contrary to this Ordinance in any point of the same shall loose to the party in this behalfe indamaged or grieved his treble damages and shall forfeit the summe of 40. l. at every time that they or any of them doe the contrary thereof in any point of the same whereof the King shall have the one halfe to be imployed to the use of his house and in no otherwise and the party that will sue the other halfe And that the Iustices of Assises in their Sessions Iustices of the one Bench and of the other and Iustices of the Peace in their County shall have power to enquire heare and determine of office without speciall Commission of and upon all them that doe contrary to these Ordinances in any article or point of the same And if the said Sheriffes return upon any person Cepi corpus or Reddidit se that they shall be chargeable to have the bodies of the said persons at the dayes of the returns of the said Writs Bills or Warrants in such form as they were before the making of this Act. The 1. of Richard the 3. Chap. 3. fol. 385. Every Iustice of peace may let a prisoner to mainprise No Officer shall seise the goods of a prisoner untill he be attainted FOrasmuch as divers persons have been dayly arrested and imprisoned for suspection of Felony somtime of malice and sometime of a light suspection and so kept in prison without baile or mainprise to their great vexation and trouble Be it ordained and established by authority of this present Parliament that every Iustice of peace in every Shire City or Town shall have authority and power by his or their discretion to let such prisoners and persons so arrested to Baile or Mainprise in like forme as though the same prisoners or persons were indicted thereof of record before the same Iustices in their Sessions and that Iustices of Peace have authority to enquire in their Sessions of all manner escapes of every person arrested and imprisoned for felony Rep. 3. H. 7. 3. 1. 2. P. M. 13. 7. H. 4. fo 47. 44. Ass Pl. 14. 43. Ed. 3. fo 24. Cook li. 1 fo 171. 26. Ass pl. 32. And that no Sheriffe under Sheriffe not Escheater Bailiffe of franchise nor any other person take or seize the goods of any person arrested or imprisoned for suspition of felony before that the same person so arrested and imprisoned be convicted or attainted of such felony according to the Law or else the same goods otherwise lawfully forfeited upon pain to forfeit the double value of the goods so taken to him that is so hurt in that behalfe by action of debt to be pursued by like processe judgement and execution as is commonly used in other actions of debt sued at the Common law And that no essoin or protection be allowed in any such action Nor that the defendant in any such action be admitted to wage or doe his Law I shall here give you a clause of the 2. and 3. of Edw. 6. Chap. 13. fol. 867. And be it further inacted by authority aforesaid that if any person doe substract or withdraw any manner of tyths obventions profits commodities or other duties before mentioned or any part of them contrary to the true meaning of this act or of any other act heretofore made that then the party so substracting or withdrawing the same may or shall be convented and sued in the Kings Ecclesiastical court ††Suits for withholing of tyths shall bee in the Eccllesiasticall Court and no where else by the party from whom the same shal be substracted or withdrawn to the intent the Kings Iudge Ecclesiasticall shall and may then and there heare and determine the same according to the Kings Ecclesiasticall Lawes And that it shall not be lawfull unto the Parson Vicar Proprietory Owner or other their Fermors or deputies contrary to this act to convent or sue such withholder of tithes obventions or other duties aforesaid before any other Iudge than Ecclesiasticall And if any Arch-Bishop Bishop Chancellor or other Iudge Ecclesiasticall give any sentence in the foresaid causes of tithes obventions profits emoluments and other duties aforesaid or in any of them and no appeale
protection of the Law and ought not to be condemned unheard neither agreeth it with the honour and justice of this Court to deny Councell to plead and open their Clyents cases as was done in your petitioners case which your petitioner hopes you will rectifie and alow his Councel to be reheard and to set forth the sufficiencie in Law of his Plea and Answer whereby your petitioner may not have cause or occasion to Appeale from this Court or complaine of you to the Parliament for obstructing of Justice which if your petitioner receive not timely redresse and reliefe in the Promises he must be constrained to do That without ever any order or further processe serving the said Mr. Hoyle for want of further answer hath prosecuted severall processes of contempts against your petitioner and threatned to lay your petitioner in Goale upon a Commssion of Rebellion for the same and hath served your petitioner with a Subpena for forty shillings cost upon your petitioners first plea and answer which Mr. Hoyle will without doubt do if your honour give not present order for stay of further proceedings upon the said last Subpena and processe of contempt already taken out against your petitioner Your Petitioner therefore humbly prayeth that you wil be pleased for the love and honour of justice and removeing the cause of your petitioners appeale from this Court and complaining of you that you will give direction for stay of the said cost and proceedings upon the said processes of contempts against your petitioner and that you wil declare and order that your Petitioners councel may be reheard without check or offence and allowed freely to shew out to the Court the sufficiencie in Law of your petitioners plea and answer to the end there may not be a failer of justice through you and your petitioner left without relief or remedy by being denied to be heard upon the mirit and equity of his cause according to Law which in the worst of times by the worst Iudges was never done to any either in the case of ship-money or any other cause as Burton Prinn and Bastwicks cases all which your petitioner refereth to your honourable consideration And prayeth as before he hath prayed c. William Browne To the right honourable the Commmons assembled in Parliament the humble petition of Will. Brown of Stepney alias Steben heath in the County of Midlesex SHEWETH THat Josua Hoyle Vicar of the parish of Stepney aforesaid in Michaelmas terme last exhibited his bill in the Court of exchequer against your petitioner and divers other parishioners there for substraction of tythes to which bill your petitioner by his learned councell pleaded and answered the same terme but the said Mr. Hoyle obtained an order from that Court for your petitioner to shew cause why his plea and answer should not be taken of the file as scandalous That your petitioner according to the order of that Court the 18. May last by his counsell Mr. NORBERY and Mr. KING offered to the Court to maintaine his said plea and answer to be good and sufficient in Law but Baron Atkins one of the Barons of that Court would not suffer your petitioners councel to open your petitioners cause in a threatning manner telling them that the Councellour who subscribed your petitioners Plea and answer should never be allowed in that Court and if they meaning Mr. NORBERY and Mr. KING or any other Councellour did appeare in any such cause they should never againe plead in that Court and so your petitioners said councell were overawed and silenced that without further heareing or debate the Court adjudged your petitioners plea and answer scandalous and futher ordered Mr. Fage who signed the same his hand should never be allowed to any pleadings in that Court and your petitioner to pay forty shillings cost to Mr. Hoyle as by the order in the Court in that cause will appeare which doing of the said Baron Atkins and the said last recited Order are contrary to the rule of justice and the great Charter of Liberty wherein it is said Iustice and Right shall de denied to no man That the said Mr. Hoyle since without ever serving the said Order upon your Petitioner having procured severall processes of contempts against him for want of further answer and served him with a Subpena for the 40. s. cost your petitioner thereupon having petitioned the Barons of that Court for justice and to have libertie to shew forth to the Court the sufficiencie in law of the said plea and answer which Mr. NORBERY and Mr. KING had before undertaken to your petitioner to doe and offered to the Court if they might have been heard as they were not to have maintained for good and sufficient in law which petition hereunto annexed Baron Trevers having read and acquainted his Brother Atkins with the contents thereof Baron Atkins replyed and said let Brown complain if he will I have done him justice his businesse shall be no more heard And thus your Petitioner being deprived and destitute of all meanes of obtaining right and justice in that Court is constrained for his own safetie to forsake his own house and familie and live as an exile and fugitive Mr. Hoyle threatning to cast him into prison upon the said Barons Order which doubtlesse he will doe to your petitioners undoing unlesse your petitioner be protected by the justice of this honourable house That your petitioner hath largely and many wayes manifested his good affection to the Parliament in his free and voluntary gifts and contributions over and above his abilitie and by his ready payment of all taxes and assessements having long voluntarily served the Parliament in this war against the enemy to the often endangering his life and the much impoverishing his estate having lost 16. Horses in the Parliaments service for which he hath not had one penny satisfaction besides almost 200. l. due to him in Arrears for his service as a Wagoner That as your Petitioner is informed Mr. Hoyle by law cannot sue your petitioner in any Court for substraction of Tyths then in the Court Christian so called * * 2. 3. Ed. 6. 13. Coo. li. 2. fol. 43. the same being now taken away by authority of Parliament * * See the act of the 17. of C.R. for abolution of Ecclesiastical jurisdiction And so Mr. Hoyle if in case the same were due as they are not he hath no meanes or the recovery of the same but by the Ordinance of this present Parliament which your petitioner did never oppose whensoever the said Mr. Hoyle did take your petitioners goods upon the same as sometimes he did amounting to a considerable value Your Petitioner therefore humbly prayeth this honourable House will be pleased to take your Petitioner under protection to stay the contempts and illegall proceedings of Mr. Hoyle in that Court against your petitioner and to call the said Barons of the Exchequer and in particular Baron
exercise a power above and against and to the subversion of the said fundamentall Lawes extending such his power to the goods free-holds inheritances liberties and lives of the people And in the sixt Article of his said impeachment it is laid unto his charge as a transcendent treasonable crime That the said Thomas Earle of Strafford without any legall proceedings and upon a paper Petition of Richard Rolstone did cause the said Lord Mount Norris to be disseized and put out of possession of his free-hold and inheritance without due processe of Law And in the seventh Article he the said Earle is charged That in the terme of holy Trinity in the 13. yeare of his now Maiesties raigne did cause a case commonly called the case of Tenures upon defective Titles to be made and drawne up without any Iury or Tryall or other legall Processe without the consent of parties by colour of which lawlesse proccedings divers of his Maiesties subiects and particularly the Lord Tho. Dillon were outed of their possessions and disseized of there free-hold by colour of the same resolution without Legall proceedings whereby many hundreds of his Maiesties Subiects were undone and their Families utterly ruinated And in the 8. Article he is impeached That upon a petition of St. Iohn Gilford Knight the first day of Febr. in the said 13. yeare of his Maiesties raigne without any legall protesse made a decree against Adam Viscount Loâ—tus of â—lie and did cause the said Viscont to be imprisoned and kept close Prisoner on pretence of disobedience to the said decree or order and without any Legall proceedings did in the same 13. yeare imprison George Earle of Kildare against law thereby to inforce him to submit his Title to the Manner and Lordship of Castle Leigh being of great yearly value to the said Earle of Strafford wil and pleasure and kept him a yeare Prisoner for the said cause two Monethes whereof be kept him close Prisoner ††All which you may at large reade in the 12â— 124 125 pages of a book called Speeches and Pallages printed for Wil. Cook at Furnivalls-Inne gate in Holburn 1641. c. Now the Parliament it selfe or the Members thereof being as Sr. Edward Cook well declares In his 4. part institute published for good Law by their own speciall orders as subiect to the Law as other men saving in the freedome of arrests that so their person may not be hindred from the discharge of their trust in the house which their Country hath inposed in them and unto whom till it be repealled it is a rule as well as to any other man in England whatsoever especially in all actions or differences betwixt party and party and that Parliament man that shall say that any Committee of Parliament or the whole houses is the Law shewes and declares himselfe either ignorant of the Law or a voluntary wilfull deceiver for what is within their breasts I neither can know nor am bound to enquire after for to know or take notice of * * See Englands Birth-right p. 3 4 5 6 7 8. neither is any thing therein till it he legally put in writing legally debated passed and legally published binding in the least unto me or or any man in England and indeed to speake properly the Parliaments worke is to repeale old Lawes and to make new ones to pull downe old Courts of Justice and erect now ones to make warre and conclude peace to raise money and see it rightly and providently disposed of but themselves are not in the least to finger it ††For the third Article in the first impeachment of the Earle of Strafford in the above said book page 118. runs thus that the better to inrich and inable himselfe to go thorow with his traiterous designs he hath detained a great part of his Maj revenue without giving legal account and hath taken great sums out of the Exchequer converting them to his own use when his Maiesty was necessitated for his owne urgent occasions and his Army had been a long time unpaid it being their proper work to punish those that imbezle and wast it but if they should finger it and wast it may not the Kingdom easily be cheated of its treasure and also be left without meanes to punish them for it and most dishonourable it is and below the greatnesse of Legslators to stoop to be executors of the law and indeed it is most irrationall and unjust they should for if they doe me injustice I am robed and deprived of my remedie and my Appeale it being no where to be made but to them whose worke it is to punish all male or evill administrators of justice and therefore I wish they would seriously weigh their owne words in their declaration of the 17. of Aprill 1646. 2. part book declaration page 878. where to the whole Kingdome they declare that they will not nor any by colour of any authority derived from them shall interrupt the ordinary course of justice in the severall Courts and Iudicatories of this Kingdome nor intermeddle in cases of private interest otherwhere determinable unlesse it be in case of male administration of Iustice wherein we shall see say they and provide that right be done and punishment inflicted as there he occasion according to the lawes of the kingdome and the trust reposed in us And therefore seeing that by the law of their owne will without due course or pocesse of Law or any visible shadow or colour of Law the Committe of plundered Ministers will Rob the Citizens of their proper goods which is not in the least justifiable for as Iudge Crook in the 6â— pag. of his Argument in Mr. Hampdens Cause against Ship money saith that the Law book called the Dr. and studient chap. 5. pag. 8. setting down that the Law doth vest the absolute property of every mans goods in himself and that they cannot be taken from him but by his legall consent saith that is the reason if they he taken from him the party shall answer the full value thereof in damage and so saith Iudge Crook I conceive that the party that doth this wrong to another shall besides the damages to the party be imprisoned and pay a fine to the King which in the Kings bench is the tenth part of as much as he payeth to the party so then if the King will punish the wrong of taking of Goods without consent between party and party much more will be not by any prerogative take away any mans goods without his assent particular or generall But if they will either have your goods or your libertie from you by the Law of their one wills be sure you play the Englishman not foolishly or willingly to betray your liberty into their hands but in this case part with them as you would part with your purse to a Theefe that robs you upon the high way for the forementioned Lawyer in the forementioned 8. pag. saith that
Court should order and their Keepers commanded to certifie the causes of their detainer no cause was certified but that they were detained by your Maiesties speciall command signified by the Lords of your privie Councell and yet were returned back to severall prisons without being charged with any thing to which they might make answer according to law And whereas of late great companies of Soldiers and Marriners have been dispersed into divers Counties of the Realme and the inhabitants against their wills have been compelled to receive them into their houses and there to suffer them to sojourne against the Lawes and Customes of this Realme ††Compulsive billiting of Soldiers unlawfull and it is very observable that the King at the time of this complaint had warres with France and to the great grievance and vexation of the people And whereas also by authority of Parliament in the five and twentieth yeare of the reigne of King Edw. the third g g 25 Edw. 3. 9. it is declared and inacted that no man should be fore iudged of life or limbe against the form of the Great Charter and the Law of the land And by the said Great Charter and other the Lawes and Statutes of this your Realme no man ought to be adâ—udged to death but by the Lawes established in this your Realme h h No man ought to be adiudged but by the established lawes 9. H. 3. 29. 5. Ed 3. 9. 25. Ed 3 4. 28. Ed. 3. 3. either by the Customs of the same Realme or by acts of Parliament And whereas no offender of what kind soever is exempted from the proceedings to be used and punishments to be inflicted by the Lawes and Statutes of this your Realme Neverthelesse of late divers Commissions under your Majestes great Seale have issued forth by which certaine persons have been assigned and appointed Commissioners with power and authority to proceed within the land according to the Iustice of Martiall Law against such Soldiers and Marriners or other dissolute persons joyning with them as should commit any murther robberie felony mutinie or other outrage or misdemeanor whatsoever and by such summary course and order as is agreeable to Martiall Law and as is used in Armies in time of warre to proceed to the tryall and condemnation of such offenders and them to cause to be executed and put to death according to the Law Martiall By pretext whereof some of your Maiesties Subjects have been by some of the said Commissioners put to death when and where if by the Lawes and Statutes of the Land they had deserved death by the some lawes and Statutes also they mâ—ght and by no other ought to have been iudged and executed ††Marshall law altogether unlawfull in England in times of peace especially and therefore that Soldier of Col. Robert Lilburnes Regiment that was lately shot at the Rendezvouz neere Ware was meerely murthered And also sundry grievous offendors by colouâ— thereof claiming an exemption have escaped the punishments due to them by the Lawes and Statutes of this your Realme by reason that divers of your officers and Ministers of Iustice have uniustly refused or forborne to proceed against such offendors according to the same Lawes and Statutes upon pretence that the said offendors were punishable only by Martiall law and by authority of such Commissions as aforesaid which Commissions and all other of like nature are wholly and directly contrary to the said Lawes and Statutes of this your Realme They doe therefore humbly pray your most excellent Maiestie that no man hereafter be compelled to make or yeeld any gift loane benevolence tax The Petition or such like charge without common consent by act of Parliament And that none be called to make answer or take such oath or to give attendance or be confined or other ways molested or disquieted concerning the same or for refusal thereof And that no Freeman in any such manner as is before mentioned be imprisoned or detained And that your Maiestie would be pleased to remove the said Soldiers and Marriners and that your people may not be so burthened in time to come And that the foresaid Commissions for proceeding by Martiall Law may be revoked and annulled And that hereafter no Commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid lest by colour of them any of your Maiesties Subiects be distroyed or put to death contrary to the lawes and franchise of the land All which they most humbly pray of your most excellent Maiesty as their rights and liberties according to the Lawes and Statutes of this Realme And that your Maiestie would also vouchsafe to declare that the awards doings and proceedings to the prejudice of your people in any of the premisses shall not be drawn hereafter into consequence or example And that your Maiestie would be also graciously pleased for the future comfort and safety of your people to declare your royall will and pleasure That in the things aforesaid all your officers and Ministers shall serve you according to the Lawes and Statutes of this Realme ††All the administrators of the law are to execute their places according to the law and not otherwise as they tender the honour of your Maiestie and the prosperity of this Kingdome Which Petition being read the second of Iune 1628. The Kings answer was thus delivered unto it THe King willetâ— that right be done according to the Lawes and customes of the Realme And that the Statutes be put in execution that his Subiects may have no cause to complaine of any wrong or oppression contrary to their iust Rights and Liberties to the preservation whereof he holds himself in conscience as well obliged as of his Prerogative But this answer not giving satisfaction †And the reason was because in this his first answer he doth not grant that the things claimed in the Petition as they are laid down are the lawes rights and liberties of England and so had left it in the Iudges breasts to have given their Iudgements as well against as with the Petition but his second answer let right be done as is desired is full to the purpose the King was againe petitioned unto that he would give a full and satisfactory answer to their Petition in full Parliament Whereupon the King in person upon the seventh of Iune made this second Answer My Lords and Gentlemen THe answer I have already given you was made with so good deliberation and approved by the iudgements of so many wise men that I could not have imagined but that it should have given you full satisfaction but to avoid all ambiguous interpretations and to shew you that there is no doublenesse in my meaning I am willing to please you in words as well as in substance Read your Petition and you shall have an answer that I am sure will please yoâ— And then causing the Petition to
of their neighbours and of other untill they had amends and fines at their own pleasure And further some of them would not be iustified by the Kings Officers nor would suffer them to make delivery of such distresses as they had taken of their own authority It is provided agreed and granted That all persons as well of high as of low estate shall receive Iustice in the Kings Court And none from henceforth shall take any such revenge or distresse of his own authority without award of our Court though be have dammage or iniury whereby he would have amends of his neighbour either higher or lower And upon the foresaid Article it is provided and granted that if any from henceforth take such revenges of his own authority 11. H. 4. fo 2. 47. Ed. 3. fo 7. 18 Ed. 3. fo 48. 41. Ed. 3. fo 26. 17. Ed. 3. fo 9. without award of the Kings Court as before is said and be convict thereof he shall be punnished by fine and that according to the trespasse And likewise if one neighbour take a distresse of another without award of the Kings Court whereby he hath damage he shall be punished in the same wise and that after the quantitie of the trespasse And neverthelesse sufficient and full amends shall be made to them that have sustained losse by such distresses Chap. 2. None but suiters shall be destrained to come to a Court. MOreover none of what estate so ever he be shall distrain any to come to his Court 41. E. 3. fo 26 47. E. 3. fo 7. Fitz. Barre 281. which is not of his Fee or upon whom he hath no Iurisdiction by reason of Hundred or Bayliwick nor shall take Distresses out of the Fee or place where he hath no Baliwick or Iurisdiction And he that offendeth against this Statute shall be punished in like manner and that according to the quantitie and qualitie of the Trespasse 3 Ed. 1. 16. Regist fo 97. Chap. 3. A Lord shall not pay a Fine for distraining his Tenant IF any of what estate soever he be will not suffer such Distresses as he hath taken to be delivered by the Kings Officers after the Law and Custome of the Realme or will not suffer summons Attachments or Executions of Iudgements given in the Kings Court Fitz. Rascous 20. Bro Trespas 16. 384. Fitz. Dan. 10. Fitz Heriot 5.5 H 7. fo 9.9 H 7. fo 14.10 H. 7. fo 2.10 Ed. 4. fo 7.9 H. 6. fo 20. Fitz. Trespas 196. S. Ed. 1.17 Fitz. N. B. fo 102. c. V. N. B. fol. 48. to be done according to the Law and Custome of the Realme as is aforesaid hee shall be punished in manner aforesaid at one that will not obey the Law and that according to the quantitie of the Offence And if any of what estate soever he be distrain his Tenant for Services and Customes being due unto him or for any other thing for the which the Lord of the Fee hath cause to distraine and after it is found that the same services are not due the Lord shall not therefore be punished by Fine as in the cases as foresaid if he doe suffer the Distresses to be delivered according to the Law and Custome of the Realme but shall be amerced as hitherto hath been used and the Tenant shall recover his damages against him Chap. 4. A distresse shall not be driven out of the County And it shall be reasonable Fitz Barre 120. 275 Fitz. Distresse 1 2. 16. Fitz. Avowry 192. 30. Ass pl 38 29. Ed. 3 fo 23 Kel fo 50. 41. Ed. 3. fo 26. 29 Ed. 3. fo 24. 42. Ed. 3. fo 26. 3. Ed. 1. 16. 1. 2. Ph. M. 12. 51. H 3. 28. Ed. 1. 12. NOne from henceforth shall cause any distresse that he hath taken to be driven out of the County where it was taken And if one neighbour doe so to another of his own authority and without judgement he shall make fine as above is said as for a thing done against the Peace Neverthelesse if the Lord presume so to doe against his Tenant he shall be grievously punished by amerciament Moreover Distresses shall be reasonable and not too great And he that taketh great and unreasonable distresses shall be grievously amerced for the excesse of such distresses Regist fo 97. Rast pla fo 216. Regist fo 98. 183. St. 9. Ed. 2. 9 Fitz. N. B. fo 90. 173 Co. lib. 8. fo 60. 7. H. 7. fo 1. 22. Ed. 4. fo 49. Fitz. Barre 281. Fitz. Trespas 188. Fitz. briefe 511. 842. Fitz. Avowry 87. 221. 231. Chap. 15. fol. 20. In what places Destresses shall not be taken IT shall be lawfull for no man from henceforth for any manner of cause to take Distresses out of his Fee nor in the Kings high way nor in the common street but only to the King or his Officers having speciall authority to doe the same Chap. 20. fol 21. None but the King shall hold plea of false Iudgement NOâ—e from henceforth except our Lord the King shall hold in his Court any Plea of false judgement Fitz. Faux Iudgment 7 8.10 14 26.1â— Ed. 3. ch 6. given in the Court of his Tenants For such Plea specially belongeth to the Crown and Dignitie of our Lord the King Regist fol. 15. V. N. B. fo 16. Fitz. N. B. fo 17. Rast pla fo 342 Coke pla fo 305. Chap. 21. fol 21. who may take Replevins of Distresses Dyer fo 245. Bro. Riots 2â—3 Bro. Parl. 108 Fitz Return de Viscount 17 Co. Inst 145 b. 3. Ed. 1 ch 17. Fitz. N B fo 68. V. N B. fo 44. IT is provided also that if the Beasts of any man betaken and wrongfully withholden the Sheriff after complaint made to him thereof may delâ—ver them without 〈…〉 gainsaying of him thaâ— tooke the Beasts if they were taken out of Liberties And if the Beasts were taken within any Libertie and the Bailiffes of the Libertie will not deliver them then the Sheriffe for default of those Bailiffes shall cause them to be delivered Regist fo 82. c. The 3. of Edward the 1. Chap. 17. fol. 27. The remedie if a destresse be impounded in a Castle or Fortresse IT is provided also that if any from henceforth take the Beasts of other and cause them to be driven into a Castle or Fortresse and there within the close of such Castle or Fortresse doe withhold them against gage and pledges whereupon the beasts be sâ—lemnly demanded by the Sheriff or by some other Bailiffe of the Kings at the suit of the plaintiffe the Sheriffe or Bailiffe taking with him the power of the â—here or Bayliwck doe assay to make Replivin of the Beasts from him that took them or from his Lord or from other being servants of the Lord whatsoever they be that are found in the place whereunto the beasts were chased if any deforce him of the deliverance of the Beasts or that no man be found for the
Lord or for him that tooke them Bro. Riot 2. 3. 52. H. 3. 3. 13. Ed. 1. 39. V. N. B. fo 43. 44 Regist fo 85. 52. H. 3. 21. Regist fol. 81. Fitz. N.B. fo 68. F. for to answer and make the deliverance after such time as the Lord or taker shall be admonished to make deliverance by the Sheriffe or Bailiffe if he be in the Country or neere or there whereas he may be conveniently warned by the taker or by any other of his to make deliverance if he were out of the Countrey when the taking was and did not cause the Beasts to be delivered incontinent that the King for the trespasse and despite shall cause the said Castle or Fortresse to be heaten down without recovery And all the damages that the plaintife hath sustained in his beasts or in his gainure or any otherwise after the first demand made by the Sheriffe or Bailiffe of the beasts shall be restored to him double by the Lord or by him that tooke the beasts if he have whereof and if he have not whereof he shall have it of the Lord at what time or in what manner the deliverance be made after that the Sheriffe or Bailiffe shall come to make deliverance And it is to wit that where the Sheriffe ought to return the Kings writ to the Bailife of the Lord of the Castle or Fortresse or to any other to whom the return belongeth if the Bailife of the Franchise will noâ— make deliverance after that the Sheriffe hath made his return unto him then shall the Sheriffe doe his office without further delay and upon the foresaid paines And in like manner deliverance shall be made by Attachment of the plaintife made without writ and upon the same paine And this is to be intended in all places where the Kings writ lyeth And if that be done in the Marches of Wales or in any other place where the Kings Writs be not currant the King which is soveraign Lord over all shall doe right there unto such as will complain Now after this businesse of Tyths which by the universall complaint against it all over the Kingdome appeares to be an intollerable and insupportable burthen I shall a little open unto you another mischiefe of far more dangerous consequence and that is the subvertion of our fundamentall lawes and liberties and the exercising of an Arbitrary Tyrannicall government which I find to be the principall crime laid to the charge of the late Earl of Strafford for which he lost his head upon the Tower Hill at London in the yeare 1641. And that it was his principall crime appeares clearly to me by his Bill of Attainder which you may read before pag. 29. and by the fiâ—st Article of his impeachment which as I find it printed in the 117. pag. of a book called Speeches and Passages of this Parliament from the 3. of Novemb. 1640. to Iune 1641. printed for Will. Crook at Furnifalls Inne gate in Holbourne 1641. The very words of which thus followeth That he the said Thomas Earl of Strafford hath traiterously endeavoured to subvert the fundamentall lawes and government of the Realmes of England and Ireland and in stead thereof to introduce an Arbitrary and Tyrannicall Government against law which he hath declared by trayterous words councells and actions and by giving His Majestie advice by force of Armes to compell his loyall Subiects to submit thereunto Now whether this very traiterous crime of the Lord of Strafford be not really acted since the warres ended both by the present House of Lords and by the present Grandees in the Army I thinke is obvious to every knowing rationall understanding unbiosed mans eye in England in that both of them have taken upon them to meddle with things not within their cognizance or jurisdiction and to out men of their lives liberties and properties without any legall processe and proceeding all the ordinary Courts of Iustice in England being open where only and alone all causes whatsoever between party and parties desidable by the lawes of this land are to be tryed and determined and no where else it being as lawfull for a Iudge Iustice of peace or a Constable to make Laws as for a House of Lords to execute Laws their legall and proper work at most upon their own usurped principalls being to make new laws repeal old laws to give their consent to raise mony for the preservation of the publique and to see it be rightly disposed of but they themselves ought not in the least to finger it much lesse by votes to give it to each other it being contrary to the Law of England for Fofees in truâ—t which they would have us to believe they * And it â— but a bâ— belief sâ— I say anâ— wil maintain it against aâ— the procâ—ers of thâ— present â— House oâ— Lords havâ— in England thaâ— they have no more right to their pretended legislative â— power theâ— a thiefe that by force takâ— my purseâ— from me Nor no more right to bâ— called thâ— legislatorâ— of England theâ— a man to be called an honest womans husband that by force and violence robs her of her virginitie and so commits a rape upon her and by threat to save her life compells her to hold her peace And I desire all the Commons of England seriously to consider how the Lords that flow from William the Conquerers sword and the meer will of his successors can rationally pretend to a legislative power when in their joynt Declarations with the present House of Commons they have declared the King their Creator hath none but is bound by his Coronation oath to passâ— all such lawes as the folk or Commons shall chuse and what greater evill can there be in the world theâ— seeing that all legislative power in the nature of it is Arbitrary that for life an arbitrary power should bâ— placed in the Lords and heriditary in their sons be they fooles or knaves therefore up with them by the roots and let no power hereafter be exercised in England but what acknowledgly flowes as a trust from thâ— people or their Representatives and who are subiect as other men to the Lawes are to give any thing to themselves to punish all mayle Administrators of Iustice and to heare and redresse all appeares upon eronious judgements given or made in any of the Courts in Westminster-Hall or elsewhere Yet notwithstanding have they Arbitrarily and Tyrannically summoned and convened men before them for things desideable and determinable only at Common Law without any due processe of Law and have taken upon them contrary to all law Iustice equitie and conscience to be both Informers Prosecutors Witnesses Parties Iurie and Iudges and thereupon have past most illegall arbitrary and tyrannicall censures upon the free Commons of England and thereupon have distroyed and outted them of their lives liberties properties free holds and estates when as by the fundamentall law of the Land no Iudge
be distinctly read by the Clerk of the Crowne The clerke of the Parliament read the Kings answer thereunto in these words Soit droit fait come est desire Which is in English Let Right be done as is desired Which being done the King in person said thus THis I am sure is full yet no more then is granted you in my first Answer for the meaning of that was to confirme all your Liberties knowing according to your own Protestations that you neither meane nor can hurt my Prerogative And I assure you my Maxime is That the peoples Liberty strengthens the Kings Prerogative and that the Kings Prerogative is to defend the peoples Liberties Ye see now how ready I have shewed my self to satisfie your demands so that J have done my part wherefore if this Parliament have not a happy conclusion the sinne is yours I am free of it And on the last day of the Session being Iune 26. 1628. His Maiesties speech to both Houses before his Royall assent to the Bils was this My Lords and Gentlemen IT may seeme strange that J come so suddainly to end this Session therefore before I give my assent to the Bils I will tell you the cause THOUGH I MVST AVOW THAT I OWE AN ACCOVNT OF MY ACTIONS TO NONE BVT GOD ALONE It is known to every one that a while agoe the House of Commons gave me a Remonstrance how acceptable every man may iudge and for the merit of it I will not call that in question for I am sure no wise man can justifie it Now since I am certainly informed that a second Remonstrance is preparing for me to take away my profit of Tonnage and Pâ—undage one of the chiefe maintenance of the Crown by alledging that I have given away my right thereof by my answer to your Petition This is so preiudiciall unto me that I am forced to end this Session some few houres before I meant it being willing not to receive any more Remonstrances to which I must give a harsh answer And since I see that even the House of Commons begins already to make false Constructions of what I granted in your petition lest it be worse interpreted in the Country I will now make a declaration concerning the true intent thereof The profession of both Houses in the time of hammering this petition was no wayes to trench upon my Prerogative saying they had neither intention nor power to hurt it Therefore it must needs be conceived that I have granted no new but only confirmed the ancient Liberties of my subiects Yet to shew the clearenesse of my intentions that I neither repent nor meane to recede from any thing I have promised you I doe here declare That those things which have been done whereby men had some cause to suspect the Liberty of the subiects to be trench't upon whâ—ch indeed was the first and true ground of the petition shalt not hereafter be drawn into example of your prejudice And in time to come IN THE WORD OF A KJNG you shall not have the like cause to complaine But as for Tonnage and Poundage it is a thing I cannot want and was never intended by you to aske never meant I am sure by me to grant To conclude I command you all that are here to take notice of what I have spoken at this time to be the true intent of what I granted you in your petition But especially you my Lords the Iudges for to you only under me belongs the interpretation of Lawes for none of the Houses of Parliament joynt or separate what new doctrine soever may be raised have any power either to make or declare a Law without my consent This Petition of Right with the foregoing answer unto it you shall find printed verbatim in the 1431 1432 1433 1434. pages of Francis Pultons collection of the Statutes at large printed Cum Privelegio 1640. And unto this I shall annex divers of the most materiallest Statutes for the peopleâ— liberty so that those that have not 40. s. to lay out for the Book of Statutes nor time to read it over may for a few pence in this following Plea or Collection read their chiefest freedomes that the Statute law of England gives them which I must confesse are very slender and short to what by nature and reason they ought to be and so deare to come by that they rather seeme bondages then freedomes by reason of pleading them by Hackney mercenary Lawyers whose riches and livelyhood are got by hood-winking the law and breeding strife and contentions among the People and by the corruptions of the Iudges in all ages in executing of them who continually rather serve the will and lust of the King or other great men that helpe them to their places then the rules of either law equity reason conscience or justice and the misery of the people of this Land it is that there is so many Lawyers in the Hâ—use of Commons the Law-makers that it is a vain thing to expect while it is so especially they being suffered to plead causes before Judges of their own making and being Parliament men they dare not displease them which brings in a manner all the fat large grifts in Eng. to their mills a remedy or relief against all those inslaving distroying abuses of the law and the execution thereof and slaves you are and slaves you must be doe the best you can till you take a particular and effectuall course to provide a thorough remedie for these insufferable maladies and if my advice may be of any weight with you I desire you seriously to read and weigh it aâ— I have said it down in my former bookes †Especiall in the 2. Edition of my Plea in bar to Iudge Reeves reprinted Aug. 1647. and called the iust mans iustification my book called the resolved mans resolution pag. 19 20. 21 22. and my epistle to Mr. Martin of the 31. May called râ—sh oaths unwarrantable pag. 27. 28. 48 49 50. See also Englands Birth Right pag. 30. 31. 32 33. and put it but in execution and I am sure it will cure you But to goe on to the main thing I intend which is to give you the foregoing promised collection out of the foresaid book of Statutes at large I shall begin with the 14. 26. 28. 29. chaps of Magna Charta confirmed in the 9. yeare of Henry the third which you shall find in the said book of Statutes fol 3. 4. which thus followeth chap. 14. How Men of all sorts shall be amerced and by whom A Free man shall not be amerced for a small fault but after the manner of the fault And for a great fault after the greatnesse thereof saving to him his continement And a Merchant likewise saving to him his merchandise St. 3. Ed. 1. 6. Regist fo â—86 184. 187. V. N B. fo 47. Fitz. N. B. f. 75. a. And any others villaine then ours shall be likewise
amerced saving his wainage if he fall into our mercy And none of the said amerciaments shall be assessed but by the oath of honest and lawfull men of the vicinage Earles and Barons shall not be amerced but by their PEERS and after the manner of their offence No man of the Church shall be amerced after the quantity of his spirituall Benefice but after his lay tenements and after the quantity of his offence Fitz Act. sur lest 34. Br. Amercement 2. 25. 33. 32. 53. 65. 10. H. 6. fo 7. 7. H. 6. fo 13. 19. Ed. 4. fo 9. 21. Ed. 4. fo 77. 28. Ass pl. 26. Cook l. 8. fo 28 59. 3. Ed. 1. 6. Chap. 26. Inquisition of Life and Member NOthing from hence shall be given for a â—â—it of Inquisition nor taken of him that prayeth Inquisition of Life or Member but it shall be granted freely and not denyed Stat. 3. Ed. 1. 11. Stat. 13. Ed. 1. 29. Regist fo 133. 134. Chap. 28. Wager of Law shall not be without Witnesse Fitz. Ley 78. Bro. Ley 37. Co. inst fo 168. a. NO Bailife from henceforth shall put any man to his open Law nor to an oath upon his own bare saying without faithfull witnesses brought in for the same Chap. 29. No man shall be condemned without tryall Iustice shall not be sold or deferred 10. Ed. 4. fo 6. Dyer fo 104. Cook li. 5. fo 64 lib. 10. fol. â—4 lib. 11. fo 99. Regist fo 186. Col. pla fo 456. NO Freeman shall be taken or imprisoned or be disseised of his freehold or liberties or free customes or be outlawed or exiled or any otherwise distroyed nor We will not passe upon him nor condemne him but by lawfull judgement of his PEERS or by the law of the land We will sell to no man We will not deny or deferre to any man either justice or right Stat. 2. Ed. 3. 8. Stat. 5. Ed. 3. 9. Stat. 14. lid 3. 14. 28. Ed. 3. 3. Stat 11. R. 2. 10. Cook li. 8 f. 38. 59. Bro. AmerciameÌ„t 6. 9. 11. 13. 20. 25. 27. 28. 31. 32 35. 37. 39. 43. 44. The 3. Edward the 1. fol. 25. There shall be no disturbance of free Election And because Elections ought to be free the King commandeth upon great forfeiture that no man by force of Armes nor by malice or menacing shall disturbe any to make free Election St. 9. Ed. 2.14 The 3. of Edward the 1. Chap. 6. fol. 25. Amercement shall be reasonable and according to the offence ANd that no City Borough nor Town nor any man be amerced without reasonable cause and according to the quantity of his Trespasse that is to say every freeman saving his freehold a Merchant saving his Merchandise a Villain saving his waynage and that by his or their PEERS St. 9. H. 3 14. V. N. B. fo 47. Regist fo 187. The 3. Edward the 1. Chap. 15. fol 27. Which prisoners may be made mainpernable and which not The penalty for unlawfull bailement ANd forasmuch as Sheriffes and other which have taken and kept in prison persons detected of felony and incontinent have let out by replevin such as were not replevisable and have kept in prison such as were replevisable because they would gaine of the one party and grieve the other And forasmuch as before this time it was not determined which persons were replevisable and which not but only those that were taken for the death of man or by commandment of the King Bro. Mainprise 11. 56. 78. Dyer fo 170. Fitz. Mainprise 1. 40. Bro. Mainprise 54 57 59 60 75 78. Cook li. 11. fo 29. Fitz. Mainprise 39. Bro. Main 6. 9. 11. 19. 22. 30. 48. 50. 51 53. 58 63 64. 73. 78 91. 94. 97 or of his Iustices or for the Forest It is provided and by the King commanded that such prisoners as before were outlawed and they which have abiured the realm provers and such as be taken with the maner and those which have broken the Kings prison theeves openly defamed and known and such as be appealed by provers so long as the provers be living if they be not of good name and such as be taken for house burning feloniously done or for false money or for counterfeiting the Kings seale or persons excommunicate taken at the request of the Bishop or for manifest offences or for treason touching the King himselfe shall be in no wise replevisable by the common Writ nor without writ But such as be indicted of Larceny by Enquests taken before Sheriffes or Bailifes by their office or of light suspition or for petty Larceny that amounteth not above the value of 12. pence if they were not guilty of some other Larceny aforetime or guilty of receit of felons or of commandment or force V. N. B. fo 40. V. N. B. fo 41. Regist fo 83. 268. or of aid of felony done or guilty of some other trespasse for which one ought not to lose life or member and a man appealed by a prover after the death of the prover if he be no common theefe nor defamed shall from henceforth be let out by sufficient surety wherof the Sheriffe will be answerable and that without giving ought of their goods And if the Sheriffe or any other let any goe at large by surety that is not replevisable if he be Sheriffe or Constable or any other Baylife of fee which hath keeping oâ— prisons and therefore be attainted he shall lose his fee and office for ever And if the under Shereffe Constable or Baylife of such as have fee for keeping of prisons doe it contrary to the will of his Lord or any other Baylife being not of fee they shal I have three yearet imprisonment and make fine at the Kings pleasure And if any withhold prisoners replevisable after that they have offered sufficient surety he shall pay a grievous amerciament to the King And if he take any reward for the deliverance of such he shall pay double to the prisoner and also shall be in the great mercy of the King St. 27. E. 1. 3. St. 3. H. 7. 31 2. P. M. 13. The 3. of Edward 1. Chap. 26. fol. 30 â—one of the Kings Officers shall commit extortion ANd that no Sheriffe nor other the Kings Officer take any reward to doe his office Rast pla fo 317. Cook Inst 308. b. but shall be paid of that which they take of the King and he that so doth shall yeeld twice as much and shall be punished at the Kings pleasure St. 33. H. 6. 10. 4. â— 3. 10. The 25 of Edward the 1. Chap. 2. 3. 4. fol. 75 76. Iudgement given against the said Charter shall be void ANd we will that if any judgement be given from henceforth contrary to the points of the Charters aforesaid by the Iustices or by any other our Ministers that hold Plea before them against the points of the Charters it shall be undone and holden for nought
other Court shall directly or indirectly or by any art shift colour or device have take or receive any money fee reward covenant obligation promise agreement or any other thing for his report or Certificate by writing or otherwise upon pain of the forfeiture of 100. l. for every such Report or Certificate and to be deprived of his office and place in the same Court the one moity of the said forfeitures to be our Soveraign Lord the King his heires and successors the other moity to the party grieved which will sue for the same at any time during the said suit or within one yeare after the same cause discontinued or decreed and in his default of such suit to him or them that will sue for the same by originall Writ Bill plaint or Information in his Majesties high Court of Star Chamber or in any his Majesties Courts of Record at Westminster in which suit by Writ Bill plaint or Information no wager of Law Essoin Priviledge Supersedeas Protection or any other delay shall be suffered or admitted Provided neverthelesse that it shall be lawfull for the Clerke to take for his paines for writing of every such Report or Certificate 12. d. for the first side and 2. for every side after and no more upon paine to forfeit 10. s. for every peny taken over and above the said summe to be had and recovered as aforesaid Having given you the most materiall Statutes that I conceive at present makes for your most advantage that I can find in the Statutes at large I shall here insert three or foure Statutes made this present Parliament that in my judgement is extraordinary well worth your knowledge and understanding the first thus followes Anno 17. Caroli Regis An Act for regulating of the Privie Councell and for taking away the Court commonly called the Star Chamber WHereas by the GREAT a a 9. H. 3. 29. CHRTER many times confirmed in Parliament It is inacted that no freeman shall be taken or imprisoned or disseised of his free hold or Liberties or free Customes or be Outlawed or exiled or otherwise destroyed and that the King will not passe upon him or condemne but by lawfull judgement of his Peers or by the Law of the Land And by another Statute made in the b b 5. E 3. 9. fifth yeare of the Reigne of King Edward the third It is inacted That no man shall be attached by any accusation nor fore-judged of life or lim nor his Lands Tenements Goods nor Chattels seised into the Kings hands against the forme of the GREAT CHARTER and the law of the land And by another Statute made in the five and twentieth year c c 25 E. 3. 4. of the reigne of the same King Edward the third It is accorded assented and established that none shall be taken by petition or suggestion made to the King or to his Councell unlesse it be by Indictment or Presentment of good and lawfull people of the same Neighbourhood where such deeds be done in due manner or by Processe made by Writ originall at the Common Law and that none be put out of his Franchise or Free-hold unlesse he be by duty brought in to answer and fore-judged of the same by the course of the Law and if any thing be done against the same it shall be redressed and holden for none And by another Statute made in the 28 year d d 28. E. 3. 3. of the Reign of the same King Edward the third It is amongst other things inacted that no man of what estate or condition soever he be shall be put out of his Lands or Tenements nor taken nor imprisoned nor disinherited without being brought in to answer by due processe of Law And by another Staâ—â—te made in the 42. yeare e e 42. Ed. 3. 3. of the Reign of the said King Edward the third It is enacted that no man be put to answer without presentment before Iustices 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 to the contrary it shall be void in Law and holden for error And by another Statute made in the 36. year of f f 36. Ed. 3. the same King Edward the third It is amongst other things inacted That all Pleas which shall be pleaded in any courts before any the Kings Iustices or in his other places or before any of His other Ministers or in the Courts and places of any other Lords within the Realm shall be entred and enrolled in Latine And whereas by the Statute made in the third yeare of King Henry the seventh power is given to the Chancellour the Lord Treasurer of England for the time being and the Keeper of the Kings Privie Seale or two of them calling unto them a Bishop and a Temporall Lord of the Kings most honourable Councell and the two chiefe Iustices of the Kings Bench and common Pleas for the time being or other two Iustices in their absence to proceed as in that Act is expressed for the punishment of some particular offences therein mentioned And by the Statute made in the one and twentieth yeare of King Henry the eighth The President of the Councell is associated to ioyne with the Lord Chancellour and other Iudges in the said Statute of the third of Henry the seveth mentioned But the said Iudges have not kept themselves to the points limited by the said Statute but have undertaken to punish where no law doth warrant and to make Decrees for things having no such authority and to inflict heavier punishments then by any law is warranted And forasmuch as all matters examinable or determinable before the said Iudges or in the Court commonly called the Star-Chamber may have their proper remedy and redresse and their due punishment and correction by the Common Law of the Land and in the ordinary course of justice elsewhere And forasmuch as the reasons and motives inducing the erection and continuance of that Court doe now cease and the proceedings Censures and Decrees of that Court have by experience been found to be an intolerable burthen to the Subiect and the meanes to introduce an Arbitrary power and Government And forasmuch as the Councell Table hath of late times assumed unto it self a power to intermeddle in Civill causes and matters only of private interest between party and party and have adventured to determine the Estates and Liberties of the Subiect contrary to the Law of the Land and the rights and priviledges of the Subiect by which great and manifold mischiefes and inconveniencies have arisen and hapned and much incertainty by meanes of such proceedings hath been conceived concerning mens rights and estates For setling whereof and preventing the like in time to come Be it Ordained and Enacted by Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Iurisdiction power and authoritie belonging unto or exercised in
and preaching according to the Canons and constitutions of the Bishops and their Clergie * * See the 13. Eliz. chap. 12. And what composition rate for tythes or other oblations this Defendant or any of the said Inhabitants have payed unto the said Complainant the same was unduly exacted by the Complainant so as the said complainant hath no right nor title by colour of any such prescription or custome to have and demand the said composition rate for the premises or any of them on this Defendant as in the said bill is set forth and demanded for that by authority of this present Parliament the function and Miniministrie of Bishops Parsons and Vicars are abrogated and avoided * * Hierarchy exterpated root and branch and government by Prelacy whereof Vicars be part See the Ordinances of the 9. of Octob. and the 16. Novemb. 1646 2. part book decl fol. 922. 932. see also the Covenant And likewise the book of Common prayer and the administring of the Sacraments and preaching according to the Bishops Canons and injuctions by authority of this present Parliament utterly taken away and disannulled ††See the Ordinances of the 3. Ian. 1644. and 23. August 1645. Parl. Decl. 2. part fol. 715. 716. And this Defendant doth conceive no tyth or composition rate for tyth nor any other oblations for Poultrie are due by law but have been taken no otherwise then by Iewish or Popish institution * * Tyths are not due iure divino and at this present there is no law to compell their payment Cook Rep. 2. Quen d. Winchester and provision as by the Statute made for the payment of tythes and oblations whereunto reference being had will appeare the same being made only for the maintenance of the Popish and prelaticall Clergie and Ministrie and no other And he this Defendant beleeveth is to be true and hopeth to prove that neither by the law of God nor man any tyths composition rates for tyths or other oblations for poultrie ought to be paid to any persons or Vicars or other Ecclesisticall Minister or Ministers whomsoever for this Defendant saith that by the Parliaments Protestation made by authority of this present Parliament the 5. day of May 1641. against popery and popish innovations all Lawes Customes Acts and Ordinances for the payment of tyths or manner of tything raâ—e or composition for tyths or other oblation to any parson or Vicars of any parish within this Kingdome their names and offices being Popish and Antichristian the same having no foundation in the word of God are utterly void and null And this Defendant denyeth that he ever did nor now doth combin practice or confederate with the other Defendants named in the said Bill or any of them or with any other person or persons whatsoever to wrong the said Complainant as in the said Complainants bill is untruly suggested And without that this defendant had depastured within the said Parish eight and twenty Cowes within the said parish as in the Complainants bill is alledged or that the Complainant is Debtor or Accountant to the King or that the said Complainant is unlawfully intituled to have receive and take the Viccarage tyth or the composition rate for tyth and the said oblations as were formerly payed to the POPISH VICCARS HIS PREDICESSORS if in case the same had been payed as in the said bill is alledged And without that any other matter or thing in the said bill of complaint contained materiall or effectuall to be answered unto and not herein fully answered unto confessed and avoided traversed or denyed is true therefore this Defendant humbly prayeth to be dismissed out of this honourable Court with his reasonable costs and expences in this behalfe wrongfully had and sustained Mr Fage Senior Councellor But what just proceeding Mr. Brown had upon this Plea before the present Barons of the Exchequer his own Petition to themselves and to the House of Commons against them will very fully demonstrate the first of which thus followeth To the Right Honourable His Majesties Barons of the Court of Exchequer The humble Petition of William Brown SHEWETH THat Iosua Hoyle now Vicar of the Parish of Stepney ever since he got the Vicarage hath been very troublesome and vexatious to your Petitioner and other the Parishioners there endeavouring by illegall forcible and indirect wayes and meaness to extort from them tythes and certaine manner of tything which by law he could not demand nor they compelled to pay as by their learned councell they are informed and hope to prove if they may have the benefit of the Law which is the inheritance of every free-borne English-man That under colour of the Ordinance for tythes the said Mr. Hoyle did take from your petitioner goods of a considerable value for which your petitioner hath no satisfaction That the said Mr. Hoyle the more to vex your petitioner causelesly served your petitioner with a Subpena to answer a bill in the Court of exchequer for pretended tythes and other duties to which Bill your petitioner in Michaelmas terme last answered by advise of his Councel learned in the Law divers other of the said parishioners being named defendants in the said Bill but not served till Easter terme last of purpose to put them to the more charges and weary them out with Multiplicity of Suits and unnecessary Expences in Law That the said Mr. Hoyle procured an Order of this Court that your Petitioner should shew cause by a certaine day in the last Terme why your petitioners Plea and Answer should not be taken of the file as scandalous and your Petitioner ordered to pay cost and make a further and better answer That your petitioner in obedience to the order of the Court by his councell Mr. Norbery and Mr. King attended several dayes to shew cause for allowing his plea and answer but when that cause was called upon your petitioners Councellours were not suffered to shew forth to the Court the sufficiencie in Law of your petitioners said plea and answer Baron Atkins telling your petitioners counsellers that Mr. Fage who subscrib'd the same his hand should never be received again in that court further threatn'd your petitioners councellours saying that if they or any other Councellours should appeare in any such cause should be debarred from pleading in that Court whereupon though the said Mr. Norbery Mr. King were prepared able and ready had undertaken to maintain your petitioners said plea and answer to be good and sufficient in law was so overawed by Baron Atkins that for feare to offend him and the Court they were silenced and so without further debate or Councel heard your petitioners Plea was over ruled and this Answer Judged scandalous and insufficient and your petitioner further ordered to pay forty shillings cost and make further answer That your petitioner is a free-man of England and by the great Charter of Liberty ought to be under the
Atkins before you to answer this Petition to the end according to your many Declarations Promises and Protestations iustice may not be obstructed or your Petitioner denyed the benefit of the law or priviledge of a free borne Denizon And the said Barons receive such condigne punishment for their uniust dealing and proceedings against your Petitioner as shall seeme meet and agreeable to the wisedome and iustice of this honourable House The like not any of the Iudges in the worst of times durst ever doe that ever your Petitioner heard of And your Petitioner if he may be protected and allowed by this honourable House to prosecute this Petition he will give securitie to make good the contents thereof And as in duty bounden your Petitioner shall ever pray c. Will. Brown Take notice and marke it well that though tyths are by law to be sued for in Ecclesiasticall Courts only yet trebble damages for none payment of tyths are to be sued for by the same Statute of the 2. and 3. Ed. 6 13. in Civill Courts at the Common Law and therefore the best plea to a bill of trebble damages is that you owe the Parson c no tyths at all and put him to prove the first Here you see what gallant Iustice is to be found amongst the Iudges at Westminster Hall that the pleaders of honest causes cannot be suffered to presse the law freely for their Clyents but must be threatned and commanded to hold their peaces before they have pressed fully either law or reason for those that hire them to be their mouths to doe it for them Is this to performe their oath which you may read before pag. 10. In which they sweare to doe equall law and execution of right to all kinds of men rich and poore without having regard to any person or persons whatsoever And that they shall deny to no man common right by the Kings letters nor none other mans nor for no other cause and in case any letters or commands shall come to them contrary to the law that they shall doe nothing by such letters or commands but proceed to execute the law notwithstanding Or is not this their dealing with Mr. Brown and his Councell a cleare demonstration of their breaking their Oaths and absolutely forswearing themselves And therefore seeing neither Mr. Brown not no man else that complains to the parliament against the injustice of the Iudges can get the least justice against them is not this and other of their visible breaking of their Oaths a true and legall cause to indict them for perjury upon which if conviction follow they are ipso facto disabled for ever to sit Iudges any more or to be witnesses in any causes whatsoever betwixt party and party For this is to be taken notice of that if a Iury bring in a false verdict against the expresse evidence given in unto them that thereupon by law they are to have their houses rased down to the ground and never to be built againe their trees puld up by the roots their ground to lye follow and wast without tillage or use their names and their childrens to be infamous reproachfull and contemptable c. And therefore without doubt the Iudges punishment for palpable iniustice must needs be much more then theirs And an excellent piece of justice and worth the highest commendation it was in King Alfred to hang 44 Iustices in one year as murtherers for their false judgments * See Andrew Horns mirror of iustice in English chap. 5. Sect. 1. pag. 239 240 241. 242. c printed for Maâ— Walbank at Grays Inne gate 1646 where all their crimes are set down which book is most extraordinarily well worth your reading But seeing the Parsons Vicars curates cannot recover their tyths by law they have unjustly illegally got up a custom to come or send their illegall Agents into mens grounds or houses to take away their goods and chattells and men are so foolish as to let them although by law if any man under any pretenc of authority whatever shall dare to endeavour by force to come into a free-mans house unlesse it be under pretence of Treason or Felony committed or suspition of Treason or Felony or to serve an execution after Iudgement for the King the free man may stand upon his guard as against so many Theeves and Robbers and if he shoot or kill them every one I know nothing to the contrary but they have their mends in their own hands and they nor none for them can iustly requâ—e any of him or them that so in his or their own legall defence destroyes them And if they take away your goods as usually they doe you have your remedy at law by way of Replevie to get * Which writs of Replevy you may have out of the Cusitore office belonging to every County but get at one and the same time a writ of Replevin a writ of Al as and a writ of Pluries which last Writ runs with a penaltie and if the Sheriff doe not execute it there lyes an attachment against him and in case he return that the goods are sold and gone before he could repleve them or drove into another County then you may have a Capias in withernam to distrain and take the parties own goods that caused the first goods to be distrained or any of those that had a hand in distraining and no supersedeas whatsoever will lye to controule or dam the writ or hinder the execution of it which writs with all other in force you may read in the Law book called the Register by the help of which you may make all the Parsons in England goe whistle for their Tyths Which Register doth very well deserve your care and pains by authority to be translated into English your goods againe putting in baile to the Sheriffe to answer the law against him that distrained your goods so you shall bring him to a tryal at law to prove his title or clame to your goods and this I conceive to be cleare from the Statutes of Marle bridge in the 52. H. 3. Anno 1267. Chap. 1 2 3 4. 15 21. and 3. 8. 3. Chap. 17. Compared with Sir Edward Cooks Exposition upon those severall Statutes in the 2. part of his Institutes fol. 103 104 105 106 107. 131 132 133. 139 140 141. 193 194. and his discourse in his first part Institutes lib. 2. chap. 12. Sect. 219. fo 143. But that you may not rest in an implicite beliefe I shall give you the fore mentioned Statutes verbatum which thus followeth Chap. 1. fol. 16. The penaltie for taking a distresse wrongfully WHereas at the time of a commotion late stirred up within this Realme and also sithence many great men and divers other refusing to be justified by the King and his Court like as they ought and were wont in the time of the Kings noble progenitors and also in his time but took great revenges and distresses
25. Ed. 3.4 28. Ed. 3.3 And whereas no offender of what kind soever is exempted from the proceedings to be used and punishments to be inflicted by the lawes and Statutes of this your Realme Neverthelesse of late divers Commissions under your Maiesties great Seale have issued forth by which certaine persons have been assigned and appointed Commissioners with power and authority to proceed within the land according to the iustice of MARTIALL LAW against such Soldiers and Marriners or other dissâ—lute persons ioyning with them as should commit any MVRDER ROBBERIE FELONIE MVTINIE or OTHER outrage or misdemeanor whatsoever and by such summarie course and order as is agreeable to Martiall Law and as is used in Armies in time of Warre to proceed to the tryall and condemnation of such offendors and them to cause to be executed and put to death according to the Law Martial By pretixt wherof your Maiesties Subiects have bin by some of the said Câ—â—mission put to death when and where if by the lawes and Statutes of the land they had deserved death by the same lawes and Statutes also they might and by no OTHER ought to have been been iudged and executed ††Yet it is very observable that at the very time when this Martiall Law complained of was executed the King had warres with France a forraign enemie but there is no such thing now and therefore the Army or the grand Officers thereof have not the least shadow or pretence to execute it in the least or to deale with me a free Commoner as they haue done And also sundry grievous offendors by colour thereof claiming an exemption have escaped the punishment 〈◊〉 to them by the lawes and Statutes of this your Realm by reason that divers of your Officers and Ministers of Justice have uniustly refused or forborn to proceed against such offenders according to the same laws and statutes upon 〈◊〉 that the said offendors were publiâ—able only by Martiall Law and by authority of such Commissioners as aforesaid Which Commissions AND ALL OTHER OF Lâ—â—E NATVRE are wholly and directly contrary to the fall lawes and Statutes of this your Realm Therefore Sin if you have any catâ— of your own heads and lives though you have none of the Liberties and Freedomes of England I againe as a friend advise you to take heed what you doe unto me any further in your illegall arbitrary and tyrannicall way that hitherto you have proceeded with meâ— for I largely understand that Canterbury and Strafford were this Parliament questioned for their arbitrary and tyrannicall actions that they did and acted many years before and the Lord Keepers Finch was by this Parliament questioned for actions that he did when he was Speaker of the House of Commons in the third of the present King An. 1628. and forced to flie to save his head In the second place I answer that if since the warres ended it was or could be judged lawfull for your Excellencie and your Councell of Warre to execute Marshall Law yet you have divested your self of that power upon the 4. and 5. of June last at New market Heath you owned the Souldiers and joyned with them when they were put out of the States protection and declared enemies and further associated with them by a mutuall solemn ingagement as they were a Company of free Commoners of England to stand with them according to the Law of Nature and Nations * * See the late Plea for the Agents printed before pag. 42 43 44. to recover your own and all the peoples Rights and Liberties the words are these We the Officers and Soldiers of the Army subscribing hereunto doe hereby declare agree and promise to and with each other that we shall not willingly disband nor divide nor suffer our selves to be disbandad nor divided untill we have security that we as private men or other the free borne people of England shall not remain subiect to the like oppression iniury or abuse as have been attempted ††See the ingagement in the Armies book of Decl. pag. 24 25. 26 27. Hereby it appeares that from this time you and the Souldiery kept in a body and so were an Army not by the States or Parliaments will but by a mutuall Agreement amongst all the Soldiers and consequently not being an Armie by the Parliaments wills they were not under those rules of Martiall Government which were given by the will of the Parliament and your Excellency could no longer exercise any such power over them as was allowed you by those Martiall lawes nay the Soldiers keeping in a body and continuing an Army only by mutuall consent did by their mutuall Agreement or Ingagement constitute a new kind of Councell whereby they would be governed in their prosecution of those ends for which they associated and made every Officer incapable of being in that Councell which did not associate with them in that Ingagement The words of the Agreement or Ingagement are these we doe hereby declare agree and promise to and with each other that we shall not willingly disband nor divide nor suffer ourselves to be disbanded or divided without satisfaction in relation to our grievances and desires heretofore presented and securitie that we as private men or other the free-born people of England shall not remain subject to the like oppression and injury as hath been attempted and this satisfaction and security to be such as shall be agreed unto by a councell to consist of those generall Officers of the Army who have concurred with the Armie in the premises with two Commission Officers and TWO SOVLDIERS to be chosen for each Regiment who have concurred and shall concurre with us in the premises and in this Agreement So that your Excellency is so farre from having a power to exercise the old Martiall Discipline that you would have been no Officer or Member of the Councell appointed to governe them unlesse you had associated with them and by that Association or mutuall Ingagement the Soldiers were so far from allowing to their Generall who ever it should have been for at that time it was uncertaine the power of exercising the old Martiall Dâ—scipline that according to the Ingagement no Officer or Soldier can be rightly cashiered unlesse it be by the Councell constituted by that Engagement so that your Excellency by your owne Engagement have put a period to your power of exercising your old Martiall Discipline and whatsoever Dâ—scipline shall appeare to the Army to be necessary must be constituted by the mutuall consent of the Army or their representatives unlesse you and they will disclaim the Engagement at New market and those principles upon which you then stood * * And if you do what are you better then a company of Rebels Traytors to the Parliament for your then opposing their power authority orders and ordinances and yeeld up your selves to the Parliaments pleasure as their hirelings to serve their
Sect 71. fol 368. where he positively declares it was the native ancient rights of all Englishmen both by the Statute and Common Law of England to pay no fees at all to any administrators of justice whatsoever or any Clarke or Officeâ— whatsoever officiating under them who were only to receive their Fees Wages and Salleries of the King out of the publique treasure See also 2 part inst fol. 74. 209. 210. The Publique treasure of the Kingdom being betrusted with the King for that and such ends see also that excellent book in English called the Mirror of justice chap. 5. Sect. 1. pag. 231. and Iudge Huttons argument in Mr. Hamdens case against ship money pag. 41. m m See 1. part inst lib. 3. Chap. 7. Sect. 438. fo 260. and the 2. part fo 43 315 590. see my book called the oppressed mans oppressions declared p. 3. Vox plebis p. 47 55. 56. and liberty vindicated against slavery p. 14 15 16 n n in his 2. part iust fol. 42 43. which is exceeding well worth your reading see fo 315 316 590 591. see the mirror of justice in English chap. 5. Sect. 1. devision 53 54 55 57 58. pag. 231. Fiftly and if in case there be no Law extant to punish their Pretended London Agents for doing their duty in prosecuting those iust things that the Parliament hath often declared is the right and due of all the free men in England they ought to goe free from punishment for where there is no Law there can saith the Apostle Paul be no transgression h h see Rom. 4.15 Englands Birth right p. 1. 2 3 4 and the resolved mans resolution p. 24 25 26. but if that Committee or any other power in England shall Commit me or any Commoner in England to prison for disobeying their illegall and Arbitrary Orders it is more then by Law they can doe neither ought I to goe to prison but by force and violence which I cannot resist and I ought to see that the warrant be legall in the form of it that is to say that it be under hand and seale and that he or they in law have power to commit me and that the warrant contain the expresse cause wherefore I am committed and also have a lawfull conclusion viz. and him safely to keep untill he be delivered by due course of Law and not during the pleasure of this House or Committee or till this house or Committee doe further order and I may and ought to read the warrant and to have a copie of it if I demand it without â—aying any thing for it and if I be committed for any crime not mentioned in the statute of 3. Ed. 1 Chap. 15. k k Which Statute you may read before p. 6. and take notice of this that all misdemeanore whatsoever are Baileable I am Baileable which I may and ought to tender in person to the parties that Commit me either if I have them by me before I goe to prison or else as soone as I am in prison or as soon as I can conveniently get fâ— baile for me and in case I be legally committed both for power matter and forme and be kept in prison after I have proffered baile as before I may bring my action of false imprisonment and recover damages therefore but besides know this that there is not one farthing token due to the Serient at Armes or any other Officer whatsoever that carries me to prison neither is there one peny due to any Gaoler whatsoever for fees from me but one bare groat at most I and when I am in prison I ought to be used with all civilitie and humanitie for that great Lawyer Sir Edw. Cook expresly saith m That imprisonment must only be a safe custodie not a punishment and that a prison ought to be for keeping men safe to be duly tryed according to the Law and custome of the Land but not in the least to punish or destroy them or to remaine in it till the party committing please and he further saith in his exposition of the 26. chap. of Magna Charta â—n that the Law of the Land favouring the libertie and freedome of a man from imprisonment and so highly hating the imprisonment of any man whatsoever though committed or accused of heinous and odious crimes that by law it self is not baileable yet in such a case it allowes the prisoner the benefit of the Writ called de odio aria anciently called breve de bono Malo to purchase his liberty by which he saith he ought to have out gratis o o Only this is to be taken notice of that if I commit an offence before the view of a Iudge or Iustices fitting upon the Bench I ought to goe to prison with or by his verball command with any officer of the Court he shall Command me to goe with only he ought to enter a Mittiter send it after me when the Court riseth and I may if I please proffer him baile to answer the Law when he Commits me which he ought not to refuse and if he doe it is false imprisonment if my pretended or reall crime were baileable and my action I may have against him which writ is in force to this day and therefore he saith ibid. that the Iustices of assize Iustices of Oyer and Terminer and of Gaole delivery have not suffered the prisoner to belong detained but at their next comming have given the prisoner full and speedy iustice by due tryall without detaining him long in prison Nay saith he they have been so far from allowance of his detaining in prison without due tryall that it was resolved in the case of the Abot of St. Albon by the whole Court that where the King had granted to the Abott of St. Albon to have a Gaole and to have a Gaole delivery and divers persons were committed to that Gaole for felony and because the Abott would not be at the cost to make deliverance p p In his 2. part inst fo 52 53. in which pages you may read the very words of an Habeas Corpus as also in the 79 80 81. pages of Regall tiranny where you may have them in English as well as Latin he detained them in prison long time without making lawfull deliverance that the Abott had for that cause forfeited his franchise and that the same might be seized into the Kings hand q q Vpon which Habeas Corpus if you be brought up to the barre you ought if wrongfully imprisoned clearely to be discharged without baile and with baile if justly imprisoned if your crime be baileable or else the Iudge forsweares himself for which you may indict him for perjury and also have an action at Law for false imprisonment against him that falsely committed you or they that forced you hither yea and in divers cases against the Gaoler himself who ought not by law upon their perills
by the prime Laws of reason and nature which are the Lawes of God it is lawful for a men to defend himself against an uniust power so he keep due distance so that if they will have your goods let them distraine for them and then you may replivie them and thereby at law try the title of their right and if they will imprison your person goe not but by force and be sure to stand upon the legallity of the warrant which that you may fully and truly understand the forme of it I shall give you at large the words of Sir Edward Cook in the 2. part of his institutes fol. 590 591 592. published by the Parliaments own authority for good law who being expounding the Statute of breaking prison made in the first E. 2. upon the words without cause c. fo 590. expresly saith this act speaking of a cause is to be intended of a lawfull cause and therefore false imprisonment is not within this act Imprisonment is a restraint of a mans liberty under the custodie of another by lawfull warrant in deed or in law lawfull warrants when the offence appeareth by matter of record or when it doth not appeare by matter of Record By matter of Record as when the party is taken upon an Jndictment at the suit of the King or upon an appeale at the suit of the party when it doth not appeare by matter of Record as when a felony is done and the offender by a lawfull Mitrimus is committed to the Gaole for the same But between these two cases there is a great diversitie for in the first case whether any felony were committed or no If the offender be taken by force of a Capias the warrant is lawfull and if he break prison it is felony albeit no felony were committed But in the other case if no felony be done at all and yet he is committed to prison for a supposed Felony and break prison this is no felony for there is no cause And the words of this Act ††See Magna Charta Chap. 29. are unlesse the cause for which he was taken require such a iudgment so as the cause must be just and not feigned for things feigned require no judgement If A. give B. a mortall wound for which A. is committed to Prison and breaketh prison B. dyeth of the wound within the yeare this death hath relation to the stroke but because relations are but fictions in Law and fictions are not here intended this escape is no felony 11. H. 4 11. Plowd com 408. Coler case Seeing the weight of this businesse touching this point to make the escape either in the party or in the Gaolers felony dependeth upon the lawfulnesse of the Mittimus it will be necessary to say somewhat hereof First it must be in writing in the name and under the seale of him that make the same expressing his office place and authority by force whereof he maketh the Mittimus and is to be directed to the Gaoler or keeper of the Gaole or prison Secondly it must containe the case as it expresly appeareth by this * * 25. E. 3. f 42 B. Coron 134. 32. li. 3. Coâ—er 248. 9. E. 4. f. 52. Act unlesse the cause for which he was taken c. but not so certainly as an Indictment ought and yet with such convenient certainty as it may appeare judicially that the offence require such a iudgement as for high treason to wit against the person of our Lord the King or for the counterfeiting of the money of our Lord the King or for petty treason namely for the death of such a one being his master or for felony to wit for the death of such a one c. or for Burglary or Robbery c. or for felony for stealing of a Horse c. or the like so as it may in such a generality appeare judicially that the offence requires such a judgement And this is proved both by reason and authority By reason first for that it is in case of fellony which doth induce or draw on the last punishment and therefore ought to have convenient certainty as it is aforesaid Secondly Also it must have convenient certainty for that a voluntary escape is felony in the Gaoler Thirdly If the Mittimus should be good generally for felony then as the old rule is the ignorance of the Judge should be the calamity of the innocent for the truth of the case may be that he did steale Charâ—ers of Land or wood growing or the like which in law are no felonies and therefore in reason in a case of so high nature concerning the life of man the convenient certainty ought to be shewed By Authority the constant forme of the Jndictment in that case forescape either by the party or voluntarily suffered by the Gaoler is That he was arrested for suspition of a certaine felony namely for the death of a certain man M. N. feloniously slaine or the like for the Indictment must rehearse the effect of the Mittimus which directly proveth that the cause in such a generall certainty ought to be shewed vid. 23. E. 3. fo 48. And if a man be indicted of treason or indicted or apealed for felony the Capias therupon wherby the pâ—rty is to be arrested comprehendeth the cause and therefore much more the Mittimus whereby the party is to be arrested having no such ground of Record as the Capias hath must pursuing the effect of the Capias comprehend the case in convenient certainty 2â— E. 3. fol. 42. pl. 32. there ought to be a certain cause and in the same leafe pl. 35. in case of breaking of prison the cause of the imprisonment ought to be shewed If a man be indicted that he break prison felonâ—ously c. generally 9. H. 4. f. 26 41. ass 5. 22. E. 3. Coron 242 243 248. 43. E. ibid. 424. 3. E. 3. ibid. 312. 328. 333 345. 346. 2. E. 3. fo 1. 26. ass 51. 22. E. 3. 13. 27. ass 42. 27. ass pag. 116. 15. E. 2. Coron 38. 9. H. 4. 1. 10. H. 4. 7. 11. H. 4. 11. 8. E. 2. Coron 422. 430. 431. 27. H. 6. 7. 39. H. 6. 33. â— R. 3. cap. 3. 2. H. 5. cap. 7. 21. H. 7. 17. it is not good for the indictment ought to rehearse the specially of the matter according to the estatute that he being imprisoned for felony c. brake Prison We have quoted many other books which though they bee not so certainly reported as might have bin wished yet the judicious Reader will gather fruit of them But see before the exposition of Magna Charta cap. 29. by the Law of the Land and observe wall the Writ of Habeas Corpus for a direct proofe that the cause ought to be shewed Lastly see hereafter in the exposition of the Statute of Articuli cleri the resolution of all the Judges of England the answer to the â—â— and 22. objections which
we will in no sort abridge for the excellency thereof but referre you to the fountaines themselves Hereupon it appeareth that the common Warant or Mittimus to answer to such things as shall be obiected against him is utterly against Law Now as the Mittimus must containe the cause so the conclusion must be according to law viz. The Prisoner safely to be kept untill he be delivered by due order of Law and not untill be that made it shall give order or the like John Lilburne Ianuary 1647. I had here an intent largely to have insisted upon the Lords tyrannicall exercise of their illegall usurpations upon divers of the free Commons of England besides my self whom they have most Arbitrarily and tyrannically without all shaddow of Law saving the lawlesse unlimitted tyranny of their own meer unbounded wills and pleasures sent unto severall Gaole◠in this Kingdome but because my time hath been exceedingly prevented and my intention frustrated by those late stormes and ungrounded fluttering bellowing whirl-wind tempests that hath lately been most falsely uniustly and maliciously raised against me by an English Tertullus Orator called Mr. Marsterson the false and lying Sepheard of Shoreditch neer London whose impeachment of me at the Lords and Commons Barre of designing the destruction and overthrow of the present Parliament although it hath made a great ecchoing and note in the Kingdome I no more valew then a blast of wind but let malice it self in all its hight doe the worst it can Yet I say by these new stormes I have been a little diverted from my purpose in fully painting the Lords at present and therefore because I judg it more then time to have this discourse abroad I shall suspend the full execution of my intentions till my late speeches at the House of Commons barre come to the publique view where I have drawn their Pictures as lively I beleeve as any picture drawer in England ever did And therefore I shall only at present confusedly fill up this spare paper and I shall begin with my proposition which I sent to the Speaker of the House of Commons which he caused to be read in their House and which verbatum thus followeth The Proposition of Lievt Col. John Lilburne prerogative prisoner in the Tower of London made unto the Lords and Commons assembled at Westminster and to the whole Kingdome of England Octob. 2. 1647. I Grant the House of Lords according to the Statute of the 14. Ed. 3. chap 5. to have in law a iurisdiction for redressing of grivances either upon illegall delayes or illegall iudgement given in any of the Courts at Westminster Hall provided they have the Kings particular Commission therefore and all other the legall Punctilloes contained in that Statute which jurisdiction and no other seems to me to be confirmed by the Statutes of the 27. Eliz. chap 8. and 31. Eliz. chap. 1. But I positively deny that the House of Lords by the known and declared Law of England have any originall Jurisdiction over any Commoner of England whatsoever either for life 〈◊〉 liberty or estate which is the only and alone thing in controversie betwixt them and me And this position I will in a publique assembly or before both Houses in law debate with any 40. Lawyers in England that are practisers of the Law and I will be content the Lords shall chuse them every man and i◠after I have said for my self what I can that any three of these forty Lawyers sworn to deliver their judgements according to the known law of England give it under their hands against me I will give over my present contest with the Lords and surrender my self up to the punishment and sentence of the present Lords and Commons Provided at this debate I may have 6. or 10. of my own friends present to take in writing all that passeth thereupon Witnesse my hand and seale in the presence of divers witnesses in the Tower of London this 2. of October 1647. Iohn Lilburne And to conclude this book I shall only add a breviate of my grand Plea against the Lords as I delivered it to the House of Commons in half a sheet of paper the 11 Nov. which thus followeth