in Irons for High-Treason in levying Warre by the Parliaments Command against the King he nobly told me he would give me the utmost priviledge that the Law of England would afford me and further declared unto me it was my right by Law to plead for my selfe and say whatsoever I could for my selfe which he freely without any interruption gave me leave to do and Sir I hope you will not be more unjust unto me then the Pagan Roman Judges were to Paul or the Caviliers to my selfe at Oxford in denying me my priviledge to speake and plead for my selfe Whereupon Mr. Justice Bacon replied and said Sir it is a favour that you are permitted to plead by councell Sir said I by your favour I doe not judge it so and besides I desire Mr. Iustice Bacon with all respect unto you and desire to let you know I do not com here to beg boones or courtisies at your hands but I come here to claime my right do with confidence tell you Sir that it is not only my undoubted naturall right by the light and Law of nature yea and by the ancient common Law of England to plead my owne cause my selfe if I please but it is also the naturall and undoubted right of every individuall Englishmen yea and of every man upon the face of the Earth in what Countrey soever and therefore Sir I demand from you liberty to specke frealy for my selfe not only by the Law of nature but also by the ancient Common law of England freely telling you that I Judge my cause of that consequence to my selfe and all the Commons of England that I will trust never a Lawyer in the Kingdome to plead for me and therefore againe demand to as my right leave to plead my selfe the which if you will not grant me I have done and haue no more to say to you whereupon the Iudges commanded the lawyers to make me roome and called me closse to the Barr where I did my respect unto them and they caused the returne to be read which consisted of my commitment from the Lords the 11 of Iuly 1646 my commitment from the Commons 19 Ian 1647 and a late order of the commons to command the Lievetenant of the Tower upon removeall of his prisoners not to remove the 4 Aldermen nor Sir Iohn Maynard nor my selfe which returne in the conclusion hereof I shall insert and then as I conceive because some of the returne was latten Iudge Bacon askt me if I understood it and I said yes for I had cause enough given me so to doe whereupon he begun to tell me I might easily perceive I was Committed by the Lords upon a Centence and begun to amplifie their power as a superior court whose actions were not to be questioned or controled by the Judges of the Kings Bench because they were inferior to them Unto which I replied Sir I desire the returne may be ordered to be entered upon record and this I pressed diverse times and desired that if the Lieutenant had any thing to add to the returne he might now speak or else forthwith it might be made a record and he thereby debarred of making additions to it which was accordingly done and then I pressed to be hard and said Mr. Justice Bacon I desire to keep you close to my businesse which is thus I am in prison and having no crime laid unto my charge by those that do commit me as clearly appears unto your Honor by the returne for generalls you know better then I doe are no charge nor crimes in Law and therefore according to the law I crave leave to make my exceptions against the return when I have done I shall willingly submit my discourse my cause and my person to your Judgements and consciences but I pray heare what I can say for my selfe and my liberty or if you will not command me silence I will obey you And then Mr. Justice Roll spoke like wise to the Lords power and would also have staved me of from going on but I prest still to be heard what I could say against the returne and he prest me to keepe close unto it and not be extravigant in medling with impertinences but I told him I did not know what he would judge impertinences therefore prest hard to be heard telling him if I spoke that which by Law I could not Justifie they might the easier tript up my heales but I assured him I was an honorer of Magistracy as being the chiefe meanes God had appointed to keepe the world in order and therefore I was resolved to speak with all honour respect both unto their office and persons so I had leave granted to go on and having my plea in a readinesse writ I put on my spectacles held it before me as the Lawyers do there Briefes and begun and said as was contained in my paper which I shall give you as I had pend it before I came to the barre though I confes I had many bickering interruptions by both the Iudges which in the best manner my memory will serve me I shall note in the Magent as I goe on with my discourse which thus followeth Mr. Justice Bacon I doe ingeniously confesse that I judge Universall safety to be above all Law and that it is the ouldest Law of any in the Kingdom and therefore I shall not dispute in the least the Parliaments irregular actions that they were necessitated too for common preservation in the height of the Warres but the Warres being ended as they themselves declare they are in their late Declaration against the Scotch Commissioners and thereby the affaires of the Kingdome reduced into a more peaceable and hopefull condition then heretofore wherefore I may now groundedly from the full streame of all their Declarations and promises expect challenge and looke for the absolute benefit of the Law and the common justice of England in the ordinary courts of Justice thereof which they have declared and promised they will not now enterrupt See their Declaration of the 17. of April 1646. 2 Part. Book Declam pag. 879 and their Ordinance of none addresses to the King in Ianuary last where they promise the people though they lay the King aside yet they will notwithstanding governe them by the Law and not to interrupt the ordinary course of Justice in the ordinary courts thereof And therefore Mr. Justice Bacon I am not a little glad that I stand before you at this Barre of Justice which is bounded by the Law where I never was before for seeing that the great Judge of all the world Stiles himselfe to be a God of judgement Esa 30.18 and further saith of himselfe That I the Lord love judgement and hate robbery for burnt offerings Esai 61.8 and therefore layes his command upon Judges those gods upon earth Psal 82.6 That they shall defend the Poore and Fatherlesse and doe justice to the afflicted and needy and deliver them out
attaching and arresting of the body of the said Simpson which in Law is an imprisonment upon the attachment of his body and the Constable takes on William Iohnson servant of the said FVSTE to assist him in the serving of his Warrant which warrrant the Coxstable served upon him and read it unto him notwithstanding the Said SIMPSON resisted him and in his owne dofence shewed him slew the the said Iohnson that came in aide of the said Constables for which he was as a wilfull murderer Committed to Northampton Goale and indicted before the Judge by the coroners inquest of wilfull murder supposeing the said Warrant to Lawfull but the matter being very mighty the Justices of assise thought not good to proceed against him at those assises but deferred it till the next assises at what time after this long time of deliberation and upon conference with other judges of the law it was resolved that the statute of the 1 Eliz. gave no power to the high commissioners to make any warrant to arrest the body of Simpson in that case but that they ought to have proceeded by citation And therefore going beyond there legall power although by the Queens letters patents expresse authority is given to the high comissioners to send for the body of any offender c. Simpson in killing the said IOHNSON had committed no wilfull murder but only defended himselfe and his liberties and so it was found by the Jury he acquitted of murder From all which I observe first that all Iudges of all Courts of Justice in England are bound toact within the compasse of there jurisdiction given them by Law 2 I observe that the Iudges of any Court going beyond their legall Iurisdiction may and ought by Law to be resisted which resistance is no contempt of the law not punishable by it 3 That the Iudges of the Law are bound in duty and concience by Law to judge all causes that comes before them according to Law which both the single order of the Lords and the single order of the Commons is inferiour or in subordination unto as well as the royall letters pattents of â—â—e King or Queen which yet those Noble Iudges according to Law threw behind their backs and acquitted the said SIMPSON of Murder inkilling of IONHSON in his doing actions in pursuance and by vertue of the authority of the said Letters Pattents And therefore much more ought you to acquit and set my body at liberty without any more adoe from the Lords 7. yeares imprisonment being their imprisonment of me though grounded upon their decree or Judgement is contrary to the expresse declared and constant received fundamentall Lawes of England and though divers men in former ages have been so sottish or fearfull to part with their legall Liberties to the Lords and have stooped unto their Iudgements Orders and Decrees yet that is no prejudice or hinderance unto me from the injoyment of mine who now demands them at your hands as my right by Law 4. And lastly seeing as is before undeniably proved that the King the Major is the primitive and the Lords the Minor are but the derivative and seeing it is before also fully proved that the Letters Pattents of the King the primative is not to be set in compitition with the Law it will strongly and undeniably follow that the orders of the single Lords who are but the derivitive cannot keepe me in prison contrary to the Law but that they ought by you without any further delay being illegall in themselves to be judged so by you as well as the King or Queenes Letters Patents were by your predecessours and my body by you to be set at liberty though it hath seemingly affronted their orders as well as the life of the said SIMPSON was saved by your predecessours although he had slaine the said IOHNSON in affront of their superiours Letters Patents and not to necessitate me for my reliefe and preservation to SIMPSONS remedy which though bloody in it selfe yet is justifiable by Law and reason by which I may defend my liberties and life against all those that in the executing of urjust illegall orders and decries would rob me of them and if in my own defence to save my life I be necessitated and compelled to destroy him or them that without Law would keep me in prison and so destroy me by famine or by sicknesse c. his life be upon his owne score for in such a case I am free from his Blood and therefore Mr. Iustice Bacon to wind up all I shall conclude in the words of learned Sir Edward Cooke in his epilogue to the 4 part of this institutes which I read thur And you honourable and reverent Judges that do sit in the high tribunals and courts or sâ—ates of Justice feare not to do right to all and to deliver your oppinions Iustly according to the Laws for feare is nothing but a betraying of the succors that reason should afford And if you shall sincerely execute Justice be assured of three things First though some may maligne you yet God will give you his blessing Secondly that though thereby you may offend great men and favourites yet you shall have the favourable kindnesse of the Almighty and be his favourites And lastly that in so doing against all scandalous complaints and pragmaticall devises against you God will defend you as with a shield for the Lord will give a blessing unto the righteous and with his favourable kindnesse he will defend him as with a shield And now dear Sir having done with my set speech being often as before I declare interrupted by both the Judges and compelled to skip over divers remarkable things in it as I have before also noted and declared which in my judgement was not fairely not justly done of the Judges unto me who ought to have given me freedom of speech * As the Lords in 1641. did give me and the Commons in Ian. last as you May reade in my Whip for the Lords pag. 10. 11. 19. and then to have judged what I said so as soone as I had done with a conge made unto them both though I confesse I spoke most commonly to Mr. Justice Bacon because I judged him to be the corum or the senior I said now Sir I have done and shall submit what I have said and pleaded unto your Judgements and Consciences desiring that if you conceive the businesse to be of that weight that it requires any more debate that you will take the time of 2. or 3. seriously to consider of it whereupon Judge Bacon asked me if I had any counsell to maintain what I had said and I told him no neither did I need any for I was able enough my self to do it and did offer him not only in Law but with my life to make it good professing unto him that I was very consident that Lawyer was not in England that durst or would say one quarter of that for
of Justice where the cause dependeth And saith Bracton the King can doe nothing but what he can doe by Law So as saith the Lord Cooke the command of the King is as much as to say as by the Kings Courts of justice for all matters of Judicature and proceedings in Law are distributed to the Courts of Justice and the King doth judge by his Justices 8 H. 4. fol. 19. 24. H. 8. chap. 12. and regularly no man ought to be attached by his body but either by proces of Law that is as hath been said by the Kings Writs or by Indidctment or lawfull warrant as by many Acts of Parliament is manifestly inacted and declared which are but expositions of Magna Charta and all Statutes made contrary to Magna Charta which is Lex terrae from the making whereof untill 42 Ed. 3. are declared and inacted to be void and therefore if this Act of Westminster 1. concerning the extrajudiciall commandement of the King bee against Magna Charta it is void and all resolutions of Judges concerning the coÌ„mandement of the King are to be understood of judiciall proceedings a part insti fo 186.187 Therefore Mr. Justice Bacon it is to no purpose for you to tell me I am committed by a higher Court and therefore you cannot legally deliver mee for I aver unto you and have already sufficiently proved it that I am commitmitted contrary to Law and Justice and therefore you being Judges of the Law and not of Presidents grounded upon will and pleasure You are to take notice of nothing but Law and therefore I demand and require my liberty at your hands as my undoubted right and due by Law which you can neither in justice honour nor conscience deny unto me But admit the Lords to be a superiour Court of justice to the Kings Bench in some cases yet if they walke beyond their bounds and limits set them by the Law and meddle with that which by Law they have no Jurisdiction of in that case they are no Court of Justice either to you or me but a company of despisers and contemners of the Law all whose actions and decrees made and done in such cases are but meere affronts unto the Law and unvalid and unbinding either to you or me or any other man in England in disobedience to which they by Law are not capable of a contempt or affront nor cannot legally punish any in such a case either with fine or imprisonment as for instance First if a court of SESSIONS which is a Court in many cases by Law questions me for my Freehould and I give them contemptuous words for medling with that which they have no Jurisdiction of they by Law can neither fine nor imprison me therefore Secondly the same holds good in the COMMON PLEAS which is an unquestionable administrative Court of Justice in divers cases yet if they go about to hold plea of murder before them if the party refuse to answere them It is in Law no contempt of the Court And if the Court shall therefore fine and imprison him it is illegall erronious and unbinding because in Law they have no Jurisdiction of such cases Thirdly and pertinent to this purpose is BAGGS CASE in the 11. Part of Cooks Reports who being summoned before the Mayer of Plimoth in open Court called him cozening Knave and bade him come kisse c. For which the Mayor Disfranchised him and it was resolved in Law that the the Disfranchisment was illegall and the reason of is was because it was not according to Law for that the Mayor in Law had no power to doe it Fourthly sutable to this is the complaint of ARCHBISHOP BANCROFT and the Judges answer to it which said Archbishop in his 22. Article to the Lords of the Privie Counsell in the 3. of King James complaines against the Judges of the Courts of Justice in Westminster Hall for affronting the actions proceedings and Censures of the High Commission Court which was erected by Act of Parliament viz. 1 Eliz. and had power by King Iames his Letters Patents to Fine and IMPRISON and yet as he complaines as you may read 2 Part. instit fo 615. 4 Part. instit fol. 335. The Judges were growne to that innovating humor of late that whereas certaine lewd persons two for example one for notorious Adultery and other intollerable contempts and another for abusing of a Bishop of this Kingdome by threatning speeches and sundry rayling tearmes no way to be endured were thereupon fined and imprisoned by the High Commissioners till they should enter into bonds to performe further orders of the said Court the one was delivered by HABEAS CORPVS out of the Kings Bench and the other by a WRIT out of the Common Pleas and sundry other prohibition have been likewise awarded to His Majesties said Commissioners upon these suggestions that they had no authority to fine or imprison any man c. Which practices and doings the Judges in their answers thereunto justifie to be legall and no more then that which they are bound unto by their Oath for that the high Commission had gone beyond the legall power of their jurisdiction having no power by law to fine and imprison in those cases and therefore the Law being the surest Sanctuary that a man can take and the strongest fortresse to protect the weakest of all it ought not to be denied to the meanest man that demands it against the greatest seeming legall oppressor that act of violence or wrong being most hatefull of all others when it is done by uncontinuance of justice and therefore that man which legally indeavours deliverance from it ought from the judges of the Law by Magna Charta to have it freely without sale fully without any deniall and speedily without delay in which regard the aforesaid Judges did not only justifie their forementioned legall practice but also fall very foule upon the Arch-Bishop c. for taxing the Judges and Iustice of the Kingdom confidently averâ—ing that for lesse scandalls then his c. in taxing the Iustice of the Kindow divers have been severely punished And Sir Edward Cooke in the 4 part of his institutes Chap. of the high Commission Court in causes Ecclesiasticall fo 331.332.333.334 335. instances divers others that for notable Ecclesiasticall crimes were fined and imprisoned by the high Commissioners and upon demanding their right from the Judges of the Courts of Justice in Weslminster Hall they were relieved and released by them by the strength of those nerves and sinewes of the Law Prohibitions and Habeas Corpusses But above all the rest that he there mensions Iohn Simpsons case in the 42. Eliz. is the most remarkable to my purpose which Simpson being accused for committing adultery with the Wife of Edward Fuste over which case by Law the high Commissioners had Iurisdiction whereupon the high Commissioners issued out there warrent to Richard Butler Constable of Aldrington in the County of Northamton for
convert all my zeale to presse all the Commons of England out of all the Counties thereof to hasten up to Westminster to the Lords House and there at their dore susser the Lordn to bore them through their cares as their Vass is and slaves being heir actions clearly and dayly declare they never intended them any freedom Law or Justice and absolutely it is a vaine thing and time meerely lost from their hands to expect any so Judge Roll concluded and said they were upon their Oathes and as Judges of the Law they could do no other bat remand me to prison againe unto which ipaciently stooped and came away but had much ados to get out of the Hall by reason of the extraordinary crowde And the next day sending to see what was entered in the booke about me the Clarke or Regester sents me a paper in these words Munday after five weekes of Easter in the 24. of King Charles Tower of London Iohn Lilburne Gentleman brought here into the Court upon an Habeas Corpus by Robert Titchburne Esquire Lieutenant of the Tower of London and the returne of the said Habeas Corpus being read he being committed by the Lords and Commons in this Parliament of England assembled it is ordered that he shall be remitted O superlative Justice was ever any man committed or remanded to prison before by those Judges that in open Court declare he hath been already almost 2. yeares in prison for nothing and now also they have no crime to lay to his charge which is my case but to draw to a conclusion I desire to fulfill my promise and give you a sight of the returne which thus followeth J Robert Titchbourne Esquire Keeper of the Tower of London according to a shore Writ of our Lord the King to this scedule annexed certifie That Iohn Lilbourne Gentleman in the said Writ mentioned was committed and is detained in my custody by vertue of an Order made the eleveth day of Iuly 1646 by the Lords in the present Parliament of England assembled and then sitting the tenour and scope of which Order followeth in these words Die Sabbati undecimo Iulii 1646. ORdered by the Lords in Parl. assembled That John Lilburn being sentenced by this House shall for his high contempt and misdemeanour done to this high Court according to the said sentence stand committed to the Tower of London for the space of 7. yeares next after the date hereof And that the Lioutenant of the said Tower of London his deputy or deputies are to keepe him in safe custody accordingly And that he do take care that the said L. C. John Lilburn do neither contrive publish or sptead any seditious or libellous Pamph lets against both or either Houses of Parliament Iohn Brawne Cler. Parl. To the Lieutenant of the Tower of London his Deputy or Deputies And further I certifie our Lord the King that afterward to wit upon the 18. day of Ian. 1647. It was ordained by the Commons in the said Parl. assembled as followeth in these words Die Martis 18. Ian. 1647. Resolved c. That the Licutenant of the Tower be hereby required to bring up to the Bar of this House to morrow morning at nine of the Clock L. Coll. Iohn Lilburne his Prisoner Hen. Elsynge Clar. Parl. D. Com. By vertue of which I the said Rob Tichbourn the said Iohn Lilbourn brought up to the laid House of Commons in the said Parl assembled by whâ—â—â— afterward the said Iohn Lilburne was againe committed to wit upon the 19. day of Jan. 1647. to my custody and in like manner is detained by vertue of an order made by the said Commons in Parliament assembled the tenour of which order followeth in these words By vertue of an Order of the House of Common these are to require you to receive from the Sergeant at Armes or his Debutie the body of L. Col John Lilbourne into the Tower of London and him there to detaine in safe Custody as your Prisoner in Order to his tryall according to Law be being committed for treasonable and seditions practices against the state and for so doing this shall be your warrant Dated Jan. 19. 1647. Wil. Lenthall Spâ—â—â—â—â— To the Lieutenant of the Tower of London The said Iohn Lilburn is also detained in my Custodie by vertue of another Order made by the said CoÌ„mons in the said Parl assembled the tenour of which Order follovveth inthese words Die Martis 18 April 1648. Resolved c that the 4. Aldermen of London Col Lilburne for Iohn May and do continue in the Tovvervv thout being removed from thence H. Elsing Cler. Parl. D. C. These are the causes of the keeping and detaining the said Iohn Lilburne in my enstody whose bodie before our Lord the King at the day and place in the said vvrit contained I have ready as by the said vvrit is commanded Robert Titchburne Keeper of the Tovver of Lonodn So deare friend with my service presented to you I rest yours faithfully John Lilburne Tower the 15. of May. 1648. FINIS
Cofers at their pleasure full and get in to them all the money of England therefore let rich men look about them in this particular and in a second regard also more dangerous then this forasmuch as it concerns life let all men I say look well about them for I am confident of this that I suffer so much Barbarism from Cromwel and his Creatures who are not willing to come to a tryal with me for the Leiutenant of the Tower hath already denyed me the benefit of the Law of England in not obeying my first Habeas Corpus and would not suffer me without fresh strugling to come to a legal tryal and thereby have before the sun convicted themselves of wickedness and unrighteous dealing with me for saith Christ John 3.20 Every one that doth evil hateth the light neither commeth to the light lest his deeds should be reproved or discovered I say I am confident I suffer so much from Cromwel c. for opposing and throwing down the Lords Tyranny which he did and still is evident he doth intend to make the arbitrary yet seeming legal ax to chop off the head of every man in England he hath a mind to destroy any otherwise then by wilful murder as he did Richard Arnal at Ware and having been under God the chief Instrument to break him of that damnable and wicked design he and his Creatures therefore are as mad at me as so many mad men c. Although they have done so much already in destroying the Law and setting up Arbitrary Tyranny that I will make it good with my life divers of them viz. of the House of Lords c. better deserve Tower hill therefore then ever Srafford did but what a company of foolish silly Creatures are Cromwel and his confederate Grandees who would pretend to give those Commoners of England a tryal according to Law and Justice ☞ whose lives they would take away by a tryal before the Lords * Here I began and said Sir what an errational thing is it for the Lords to go about at their bar to try Commoners for their lives when as men that know the Law c. when as men that know the Law of England fully knows that if the present Lords were a true House of Lords as before I have fully proved they are not yet they were not able legally to try one of themselves for though the body of their House in case they were twelve or eighteen and under they cannot be should be in the nature of a grand Jury and petty Jury and so the Judges of matter of Fact yet they must have a Judg of matter of Law too and that must be a Lord high Steward which they neither have nor are able legally to make and therefore have no colour of power in Law to try one of themselves much less a Commoner that is none of their Peer or equal whom the Law hath again and again expresly prohibited them to meddle with but enough for the Lords at present and now two things more distinctly for the House of Commons First admit they had a Jurisdiction in executing the Law which I have before already fully proved they have not yet all Courts of Justice established by Law in England are bound and tyed to Judg no man but by witnesses sworn according to the Law they being the evidence to the Jury and Judg 3. part instit fol. 163. But they never put Masterson my accuser to his oath in his Information he delivered against me although he were but a single informer never any man of all the large company besides himself appearing against me and therefore no shadow or colour for the House of Commons to adjudg or condemn me to prison thereupon seeing no man whatsoever can be condemned by any Court in England without witnesses sworn against him according to Law but if he had delivered what he did deliver against me upon his oath it had been never the legaller because they have no power nor never had to administer an oath and therefore cannot by the Law of England in the least pretend any Jurisdiction over me in cases Criminal or any power at all to commit me to prison for where the Court hath no authority to hold plea of the Cause there all proceedings are Coram non Judice and there perjury though Masterson had sworn never so falsly cannot be committed and so against all reason a man is left at liberty to say without fear of punishment what he please because it being not in a Judicial Proceeding no perjury can be committed by Law and that the House of Commons hath no power to administer an oath is evident in that the Law gives them none nor they never practised it and therefore if they would now put it in use they cannot legally of themselves now begin to do it For as learned Cook saith in his Chapter of perjury 3. part instit fol. 165. An oath is an affirmation or denyal of any thing lawful and honest before one or more that have authority to give the same for advancement of truth and right calling Almighty God the searcher of all hearts to witness that his Testimony is true so that saith he an oath is so sacred and so deeply concerning the Consciences of Christian men as the same cannot be administred to any unless the same be allowed by the Common Law or by some Act of Parliament neither can any oath saith he allowed by the Common Law or by Act of Parliament be altered but by Act of Parliament no nor a new oath raised and therefore he declares it to be a high contempt of the Law of England for any man to administer an oath without warrant of Law and to be punished by fine and imprisonment and of all a And here I skipped seven or eight lines to this mark ☞ oaths in use in England This oath of Confirmation for deciding and ending of Controversies is the only and alone warrantable oath by the Law of God Mat. 5.34 35 36 37. and Heb. 6.16 17. James 5.12 And as for other oaths I know no use in the world of them for those men that do not love things that are excellent for the excellency inherent in them will never love nor honor them for oaths sake But ☞ the House of Commons wanting a legal power to administer an oath it is a clear demonstration and proof that they have no power or Jurisdiction at all in Law to decide Controversies betwixt a man and his neighbour especially in times of peace when all the ordinary Courts of Justice are open and therefore have no shadow or colour in Law to adjudg or commit any man that is not a Member of them to prison And in b But all this president to avoid disputes I skipt over for the Judges prest that the House of Commons owned the Lords Jurisdiction in some cases to which I answered I owned it as well as they and
told them I was willing to give the Lords as much Jurisdiction without dispute as they desired to Judg condemn and destroy one another so they would not meddle with me nor my fellow Commoners and I was confident if the Lords distinctly as a single House had any Jurisdiction at all in Law it was but over themselves and as much of which as they please to take I am willing without dispute to grant them the second place That the House of Commons have no judgment or Jurisdiction by Law clearly appears by their own confession in the roul of Parlialiament in the 1. H. 4. Membr 14. Num. 79. which this present April I had under Mr. William Riley the Record-Keepers hand which at the Bar I am ready to produce and which thus in English verbatim followeth The third day of November the Commons made their Protestation in manner as they made it at the beginning of the Parliament and over and above declare to the King That forasmuch as the Judgment of Parliament belongs only to the King and to the Lords and not to the Commons unless it please the King of his grace especially shewed them that the said Iudgment was for their ease and no record shall be made in Parliament against the said Commons that they are or shall be parties to any judgments given or to be given hereafter in Parliament To which was answered by the Archbishop of Canterbury by the Kings command that the said Commons shall be Petitioners and Demanders and that the King and the Lords at all times have had and shall have by right the Iudgment in Parliament in manner as the said Commons have shewed unless it be in Statute affairs or in grants and subsidies or in such things and affairs for common profit of the Kings Realms the King will have their especial advice and assent and that this Order be kept in all times to come And so much at present for the 2d essential of a warrant And now I come to give a touch and but a touch only upon the third ingredient to make a mittimus lawful and that is that it be under hand and seal expressing the office and place of him which makes it unless the party be committed in the sight of the Judg sitting in open Court but there is no seal to mine and therefore it is illegal for I was not in the view of my pretended Judges when they committed me But Mr. Justice Bacon I come to the fourth thing upon which at present as one of the principal essentials I shall stifflly stand which is That the warrants of my Commitments both from Lords and Commons now returned before you are illegal there being nothing but generals laid unto my charge by them which is no charge nor crime in Law and therefore both my warrants wanting a legal and a particular cause in them there is no colour in Law to keep my body in prison by vertue of them Now to prove that Generals are no crimes nor charges in Law though the dayly and continual practises of all the Courts of Iustice in England prove it yet for illustration sake I shall crave leave to alledg some legal Authorities And in the First place I shall begin with the Judgement of Sir Edward Cooke upon the Statute of breaking of prisons made 1 Ed. 2. who in his 2. part institutes fo 591. expresly saith seeing the weight of this businesse touching this point to make an escape either in the party or in the Gealours Fellony dependeth upon the lawfulnesse of the Mittimus it will be necessary to say somwhat hereof First it must be in writing in the name and under the seale of him that makes the same expressing his Office place and authority by force whereof he makes the Mittimus and it is to be directed to the Goaler or Keeper of the Goale or Prison Secondly it must containe the cause as it expresly appeareth by this Act * 25. Ed. 3. Coran 134. and 32. Ed. 3. Coram 248. and 9. Ed. 4. fol. 52. 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 requires such a judgement as for High-Treason to wit AGAINST THE PERSON OF OVR LORD THE KING or for the counterfetting 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 Fellony to wit for the death of such a one c. or for blurgary or robbery c. or for Fellony for stealing of a horse c. or the like so as it may in such a generality appeare judicially that the offence required such a judgement and he there further goes on gives divers arguments reasons scites abundance of law authorities to prove that a particular cause ought by Law to be expressed in every Mittimus or Warrant of Commitment My second proofe to prove generalls are no charge in Law is the deliberate and resolved opinion of all the Judges of England in the 3 yeare of King Iames which was a time of full peace wherein the law had its free currant without the threates of Marciall or the checks of Prerogative arbitrary power and therefore the Judgement is of more weight who in their answer to the 22. object on or article of Archbishop Bancroft and to the whole Clergy of England hath those very words we do not neither will we in any wise impugne the Ecclesiasticall authority in any thing that appertaineth unto it but if any by the Ecclesiasticall authority commit any man to prison upon complaint unto us that he is imprisoned without just cause we are to send to have the body and to be certified the cause and if they will not certifie unto us the particular cause but generally without expressing any particular cause whereby it may appeare unto as to be matter of ecclesiasticall cognizance and his imprisonment be just then we do and ought to deliver him and this say the Judges is the Clergies â—ault and not ours and although some of us have dealt with them to make some such particular Certificate to us whereby we may be able to judge upon it as by Law they ought to do yet they will by no meanes do it and therefore their errour is the cause of the thing they complaine of and no fault in us for if we see not a just cause of the parties imprisonment by them then we ought and are bound by Oath to deliver him and sutable to this is their answer to the Clergies 21. Article which Articles and answers are recorded in 2. part instit fo 614.615.616 My 3. proofe to prove that Generalls are no crimes in Law is out of the 4. part instit fo 39. where the Lord Cooke expresly saith That a man by law cannot be attainted of High-Treason unlesse the offence be in Law high treason for
am that the dealings of the Lords and Commons with me demonstrated by their orders of committments flowes not from any power given them either by the Law of the Laud nor from the Indentures betwixt them and their chusers no nor yet from any word or clause in the Writ of there summons or Elections and therefore fourthly it must flow from there CROOKED IVSTS DEPRAVED VVILLS and ARBITRARY PLEASVRES by which with naked faces they declare themselves to be limitted by no boundary unaccountable and obnoxius to no censures for any possible abuse whatsoever that can becommitted by them for by these committments they evidently declare there is no rule whereby to measure the rectitude or obliquitie justice or injustice of their Government and actions and by consequence they are under an impossibilitie to render an account of their wayes and doings and so by consequence the people of England are in the absolutest road way of perfect slavery that is upon the earth this the Parliament or the Lords and Commons would have the World to beleive they abhord in the King as appeares by there last declaration against him in which they shew the reasons of their votes not to make or to receive any addresses to or from him for in Page 12 they sâ—y the King hath laid a fit foundation for all tiranny by that most destructive maxime of his viz. that he oweth no account of his actions to any but to God alone but by the warrants of my coÌ„mitments it seemes this wicked and heathenish Maxim is Iudged by the makers thereof not to be to sweete a morsell for their own Pallets though in their said declaration they judge it to sweet for the Kings and therefore to conclude this point if this honorable Court of Justice the Judges whereof are sworne to Judge according to the Law and not lust will nor pleasure will Judge these arbitrary Committments of mine to be legal then I make my humble desire unto you the Judges thereof that you would cousen and deceive the people of the Kingdome no longer by assuming unto your selves the name of Judges of the Law but rather translate your Titles into the name of Judges of lust will and pleasure that so the people may expect the legall administration of the Law no longer from you and so I have done with the Fift and last ingredient to a legall Mittimus Now Mr. Justice Bacon seeing it is objected both by you and Mr. Justice Roll that my Commitment from the Lords is rather a Sentence Judgement or Decree hen a bare Mittimus and therefore being a judgement by the Lords a higher Court for 7. yeares imprisonment I cannot be delivered by this Court which being inferiour to it cannot reverse it nor be Judges of it To which Mr. Justice Bacon I answere First I doe not seeke unto you at present for reversement of my Sentence which is 4000. l. fine and perpetuall disfranchisement of the Liberties of an Englishman as well as seven yeares imprisonment But I come unto you as Judges of the Law who are sworne impartially to doe me Law and Justice notwithstanding any command whatsoever by any whatsoever to the contrary for my personall liberty which is my undoubted right by Law for any thing that judicially appeares before you upon the Warrants of my commitments For I have already fully proved unto you there is not legally the least crime in the world laid unto my charge and therefore no rules in Law for you to send me backe againe to prison But secondly I answer that I have already proved the Lords are none of my legall Judges and therefore all their proceedings with me from first to last are corum non judici Yea even their Sentence and Commitment it selfe for being it is against the 29. Chap. of Magna Charta it is void and null in Law which expressely saith That no Freeman shall be taken or imprisoned or be dissesed of his Freehould or Liberties or free Customes or be Outlawed or exiled or any otherwise destroyed nor past upon nor condemned by the lawfull judgement of his equals or by the Law of the Land which Law of the Land is expounded by the Statute of the 25. Ed. 3.4 37. Ed. 3.18 and Sir Edward Goke in his 2. part instit fo 50.51 to be by due Processe of Law viz That none shall be taken and past upon c. by Petition or suggestion made to our Lord the King or to his Counsell undesse it be by indictment or presentment of good and lawfull men where such deeds be done in due manner or by Writ originall at the Common Law being brought in to answere by due Processes according to the common and olde Law of the Land all which c. is confirmed by the Statute that abolished the Starre-Chamber this present Parliament 17. C. R. and all Acts Ordinances Orders Judgements and Decrees made contrary thereunto or in diminution thereof are thereby declared ipso facto to be null and voide in Law and are to be holden for errors and false judgements which totally barrs and overthtowes all Presidents whatsoever to the contrary yea although the Lords had a million of them And excellent to this purpose is Sir Edward Cookes Commentary upon the 3. Ed. 1. chap. 15 but especially his Commentary upon these words viz. Or Commandement of the King First faith he the King being a body politique cannot command but by matter of Record for the King commands and the Law commands are all one for the King must command by matter of record according unto the Law Secondly When any Judiciall Act is by Act of Parliament referred to the King it is understood to be done in some Court of Justice according to the Law And the opinion of Gascoine Chiefe Justice is notable in this point that the King hath committed all his power judicall to divers Courts some in one Court some in another c. and because some Courts as the Kings Bench are Coram Rege and some coram Justiciariis therefore the Act saith by the commandernent of the King or his Justices Hussey Chiefe Justice reported that Sir John Markham said to King Ed. 4. that the King could not arrest any man for suspition of Treason or Fellony as any of his Subjects might because if the King did wrong the party could not have his action if the King command me to arrest a man and accordingly I doe arrest him hee shall have his action of false imprisonment against me albeit he was in the Kings presence resolved by the whole Court in 16. H. 6. which authority might be a good warrant to defend his said opinion to Ed. 4. The words of the Statute of the 1 R. 2. chap. 12. are unlesse it be by the Writ or other commandement of the King and it was resolved by all the Judges of England that the King cannot doe it by any commandement but by Writ or by order or Rule of some of his Courts
me that now before them I had said for my self because my adversaries were transcendantly pocent who by their wills and pleasures had in some kind destroyed men of more power and greatnesse then all the Lawyers at the Bar and therefore Sir though I am acquainted with some Lawyers that sometimes plead at this Bar. yet peradventure my respects and obligations may be such unto them that it cannot stand with honour justice or conscience for me to desire them to plead my cause seeing I am confident they cannot do it with safety and for me to expect that from them or put that upon them that in mine owne conscience I do verily believe will be their ruine in their practise and lively hoods when I am not able in any reasonable manner to requite them I should in my owne thoughts render my selfe the basest and unworthiess of men Whereupon Mr. Justice Bacon begun to speake and to make a kind of reply or answer unto divers of the things I had infisted upon and told me that Sir Edward Cooke in the 4. Part of his instituts whom he did see I had very much studied saith That no inferiour Court could meddle to question Judgements of Parliament and after a pretty large speech told me I was committed upon a centence from a Superiour Court whose judgements by Law they neither were able nor could controule and therefore must of necessity remand me back again and after he had done I replyed Sir it is true the Judgements of Parliament is not to be questioned by inferiour Courts alwaies provided they meddle with that which by Law appertaines to the Judgement of the Parliament which the executing of Lawes in the Originall Judgeing and desiding of deferences doth not the least And besides Mr. Justice Bacon you doe not I hope in Law Judge the Lords House singly or the House of Commons single to be the Parliament true it is sir severall statutes in Queene Elizabeths time as the 27. Chap. 8. 31. ch 1. provides That if any find himselfe agreeved by false judgements in the inferior Courts he shall if he please by a Writ of Error sue in the high Court of Parliament which I cannot beleeve in Law is meant the Lords House *âŽ* And it is the most irrationall thing in the world to say that legally no Law can be binding but that which is made by the consent of the King Lords and Commons and yet to prefor a single judgement of the Lords made without all forme shaddow colour or pretence of Law above all the Acts of Parliament made for 3. or 400. yeares together for this I will offer to all the Lawyers in England and challeng them to shew me one Statute or a peece of a Statute to justifie the Lords proceedings against me in Law and I will be willing to lose my head and to bee cut in ten thousand peeces and besides it is most irrationall for the Lords who never pertended to any power but what they derived from the King to immagine or go about to make the world beleeve that they can by their wills destroy all the Lawes of England as in their dealing with me they have done when the King their fountain of power can doe no Judiciall action but by his Courts of Justice and that in the legall method manner or processe of the Law although by Law a thousand times more is given and instated into him then unto all the Lords of England and for the truth of this see the 2. part inst f. 168 186. 187 yea if the King imprison me illegally by his owne Warrant either in matter or form I have my remedy against him at law as appears by the Act that abolished the Star-Chamber and therefore it is the height of erationally to conceive or say that the Lords will shall be Lord Paramount above the will of the King their Fountain and Creator and the power of the Law which is above Him from whom they derive all they have or can pretend vnto and I am sure the law tells me that in the Courts of Justice which is established and bounded by the law and is administred adjudged and executed by sundry Judges and Ministers of the Law is betrusted a full and ample power for tryall of property of lands and goods and for the conservation of the people of this Realm in peace and quietnesse but I am sure by the Judges remitting of me back to prison there is a failer of Justice which the Law abhors and an insufficiency in the Law to deliver me from destruction by lust will and pleasure and therefore without dispute slaves are the people of Eng. in the highest and slaves they must continue if they spedily rouse not up their spirits stand stifly for their rights single for the further and due examination of the said judgement in such manner as is used in erroneous judgments in the Court of Kings Bench but the law gives not the Parliament much lesse the single House of Lords the least cognizance in the world originally to meddle with any thing betwixt party and party and if they doe I am sure by the law in force at this day it is corum non judicii but the Lords originally summoned me to their Bar be for any charge exhibited or any indictment proferred or any visible complanant or prosecutor appearing and their high commission and Spanâ—sh Iâ— quisition-like examined me upon interrogatories and so committed me to prison for which they have no shadow of ground in law Whereupon Mr. Justice Roll stept up confirmed that which his Brother Bacon had already said telling me that the Chancery and the Court of Admirals proceedings were diverse from those statutes I had alleadged as well as the proceedings in Parliament were and yet were Lex terrae and it is positively said he the law of the Land that an inferiour court as ours is cannot reverse the judgment of a superiour Court as the Lords are which we must of necessity do if we should release you which we cannot doe if we would without medling with the merit of the cause from the beginning and then the way ought to be by writ of Errour which said he will not lye in this Court in a Judgment given in the Lords House and therefore you must rest content it had been well for you you had pleaded these things before the Lords in your plea there aaginst their jurisdiction Sir said I I did so and they sent me to prison therfore not only so but in Newgate close imprisoned me therefore and would not suffer my wife to come into the Prison yard so much as to speak with me I also appealed to the House of Commons and solely put my selfe upon their Justice and Judgement but I sound them for almost these two years together deaf both unto Justice Law and reason and now as my last legall refuge I come to you after I have been almost two years in