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
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
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
The LAWES Funerall OR An Epistle written by Lieutenant Col. JOHN LILBURN Prisoner in the Tower of London unto a friend of his giving him a large relation of his defence made before the Judges of the Kings Bench the 8. of May 1648. against both the illegall commitments of him by the House of Lords and the House of Commons and how that the Judges in open Court were necessitated to confesse there is by neither of the commitments any crime in Law laid unto his Charge yet though he was imprisoned for nothing being committed by a superiour Court the Lords and that upon a Sentence they could not release him but remanded him back again Prisoner unto the Tower which is a full Declaration there is no Law left in England now but that the people thereof must be governed by the lust will and pleasure of the House of Lords c. and though they deale never so unjustly with them to the causelesse destruction of their Lives Estates and Families yet the Judges of England being in deed and in truth meere Ciphers cannot remedy it because it is done by their superiours the House of Lords wherefore the said Iohn Lilburne doth declare his sorrowfulnesse in his great mistake in zealously stirring up the people of England to stand up to maintain their Lawes seeing they have none in being but the will of the Lords and therefore according to his promise to the Judges in open Court he provokes all the Commons of England out of all the Counties thereof to hasten up to Westminster to the Lords house and there suffer the Lords who now have conquered and subdued all their Lawes to bore them through their eares as their vassalls and slaves if they can beare it with patience Proverbs 28.1 The wicked flye when none pursueth but the Righteous are as bold as a Lyon Deare Sir AT your earnest desire I cannot chuse but give you and the world as perfect account as I can of all that passed before the Judges of the Kings Bench in reference to my selfe upon Munday last being the 8. of this present May. And in the first place I must intreate you to take notice of the reason or cause of my being there that day which was upon my own earnest desire for looking upon my selfe unavoidably in the roade way of destruction in the continuance of my causelesse and arbitrary imprisonment and finding the generality of the House of Commons who should be the true and faithfull conservators of the Lawes and Liberties of England deafe unto Justice and their eares and hearts sealed up against it so that of them I for my part may almost complain as the Psalmist doth they are all gone aside they are altogether become filthy there is none that do good no not one for they eat up the people as they eat bread and call not upon the Lord. Psal 14.3.4 I say at the serious consideration hereof musing with my selfe what to do for my own preservation and the preservation of my wife and little Children which nature and the Law of God teacheth me to endeavour with all my might who are all in the eye of reason unavoidably destroyed in my continuance in prison and I was staved of in my own Conscience from the use of extraordinary meanes for my deliverance till I had attempted what the Judges of the law would do for me whom I lookt upon as my last legall refuge and supposed they might happily do me some good but I durst not feede my thoughts with any confident hopes of Justice from them being they are created and made Judges by the power and authority of my potent adversaries and therefore must needes serve their ends or else be thrown out of their places yet I was resolved to put all the strength I had to the work and for that end I the 4. of April last writ an effectuall letter to the Speaker of the House in print intitulled it The Prisoners Plea for a Habeas Corpus therein print my Petitioned to the Judges of the Kings Bench for my Habeas Corpus and because Councell the last Teime had failed me and durst not move for me I was necessitated to write another Epistle the 7. of April 1648. to all the morall honest Englishmen in and about the City of London whether Episcopall Presbyterian or those commonly called Sectaries and in print intitulled it The oppressed mans importunate and mournfull cryes to be brought to the Barre of Justice in which I earnestly intreat them the first day of the Tearme being April the 19. 1648. to deliver my Petition for me and get me a Habeas Corpus which now I thank them divers of them did and procured me a Habeas Corpus which the Lieutenant of the Tower withstood and did not carry up my body whereupon I by a new Petition complained of him to the Judges but they in my apprehension grew somwhat deafe upon which I was necessitated the very present to write a rufling letter to Judge Roll which in print is intituled Vpon which letter I had an Alias granted me with a penalty of 40 l. which the Lieutenant obeyed and accordingly upon Munday last sent my body to Westminster where I arrived betwixt 8. and 9. a Clock and found both the Judges and my Grandee Adversary Soliciter Sr. Iohn c. very hard at whispering discourse neare the Chancery Court and upon the Judges going to the Bench I stept to the Barre and presently the Lieutenant of the Tower was called to make a returne of his Habeas Corpus whereupon his Servant Mr. Comport and my Keeper made answer here was the Prisoner Mr. Lilburne at the Barre upon which the Judge asked him for the returne and he told him he was but a Servant and at the Command of the Lieutenant had brought up the body of Mr. Lilburne which was all the returne he had and immediately the Lieutenant himselfe as I conceive gave in the returne and then Mr. Iustice Bacon demanded of me where my Councell was and being standing up upon a high place before the Bench with a loud voice I answered him I had none neither would I have any but desired to cast the weight of my Cause upon my own abilities which were sufficiently able to inable me to plead my cause my selfe before them and therefore Sir said I with a shrill voice I crave and demand at your hands as my naturall and undoubted right the same benefit and priviledge that Paul alwayes injoyed from the hands of the Pagan and Heathen Roman Judges who alwayes gave him free liberty as his Right to plead his Cause before them and to speake in the best manner he could for himselfe but Sir if you will not follow that just example of the Pagan Roman Judges Then in the second place I crave the same priviledge from you that I injoyed from the hands of the Caviliers at Oxford who when I stood before Judge Heath for my life being arrained
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
these should assuredly produce disorder and darknesse and bring the whole body out of order and in the end to distruction so in the commonwealth Justice being the main preserver thereof if one Court should usurp or incroach upon another it would introduce incertainty subvert Iustice and bring all things in the end to confusion But Sir I shall at present in this place spare the full opening of my plea in this particular and reserve it to the place most fit for it And therefore I shall infist upon the 2 part of my plea which is that the matter and forme of my Warants of commitments are illegall the legality of which ought as Sir Edward Coke declares in his 2. part instit which is published by the present House of Commons for good law to the Kingdom as appeares fol. ult who therein fol. 52.590.591 expressely saith 5. things are essentiall in Law to the making of a commitment lawfull viz. 1. That is be by dur Processe or proceeding in Law 2. That he or they that do commit have lawfull authority 3. That this warrant or mittimus be lawfull and that must be in writing under his hand and Seale 4. The cause must be contained in the Warant or Mittimus and that not in generall termes but in particular as for treason then for what particular Treason and of for fellony then for what particular felony and if for misdemeanours then for what particular misdemeanour 5. The Mittimus containing a lawfull cause must also have a lawfull conclusion viz. and him safely to keep untill he be delivered by due course of Law and not untill the party committing please or doth further order or for 7. yeares Now Mr. Justice Bacon all and every of these particulars I doe averre is wanting in both my Commitments For first there was no due Processe of Law against me no Bill filed or Indictment preferred nor no legall complaint exhibited against me neither did I see any legall prosecutor before I was originally committed no nor not to this present houre although I have been almost two yeares in Prison First in Newgate and then secondly in the Tower devorsed from my wife debarred of my friends deprived of pen Inck and paper But I desire to cease this at present and go on to the main things And therefore 2. I aver that by the known Law of this Land neither of the Speakers of either House nor neither House themselves have the least shaddow or colour by any declared and known Law of England to commit the meanest Commoner of England that is not one of there members to prison either for treason the highest crime for that is expresly to be tryed by the common Law by people of the neighbourhood of the same condition as appeares by the 25 Edward 3 chap. 2. and 1. 2. Phillip Mary Chap. 10. yea and it lyes not in the whole Parliaments power to punish any man for any crimes which they shall call treasons but what is cleerly declared and fully expressed to be treason by the statute the 25 Edward 3 Chap. a as appeares by 1 H. 4 Chap 10. and the 1 M. Chap 1. Or for breach of the peace although it be in affronting beating or wounding of any Parliament man for that is expresly ta be tried in the Kings Bench. 5 H 4 Chap. 6. and 11 H. 6 Chap. 11 Yee although a sherife by law is to pay 100 l. to the King and to suffer a Years Imprisonment c. without Baile or mainprise for every false returne of a Knight of the Shire that he makes yet by Law neither Houses are to be Judges in this very businesse so immediately concerning the House of Commons but it shall be examined and tryed before the Justices of Assises in the Sessions of Assise 8. H. 6. Chap. 7. 23. H. 6. Chap. 15. yea the Parl. or the House of Commons are not to punish those that will not pay them their wages for their service done in the Parl but the refusers are to be punished by the legall administrators of the Law in the ordinarte Courts of Iustice 23. H. 6 Chap. 11. Now Sir if the Parliament or the two Houses either conjoyned or divided cannot exercise executive Justice in these things so nighly concerning themselves much less in things more remote as my case is who if I were guilty of the thing layd unto my Charge yet they are only and alone tryable and punishable at the Common Law and not in an arbitrary uncertain way in either or both Houses the rules of which certainly no man in heaven or earth knoweth and saith that worthiest of English Lawyers Sir Edward Cook in the Proem to the third part of his Institutes It is a miserable servitude or slavery where the Law is uncertain or unknown And I know you know it is a received Maxim in Law that the Parliament is not to medle with judging or punishing that which appertains and belongs to the Common Law but my pretended crimes have their punishments appointed by the Common Law and are there only to be tryed and punished and therefore in the least belongs not unto the Parliaments Cognisance or Jurisdiction Nay the Parliament men themselves for Treason Felony and breach of the Peace are not priviledged in the least from tryals at Common Law as appears by the fourth part Institutes fol. 25. and the Lords and Commons confess the same in their Declarations 1. part pag. 48. 278. The Common Law of England which is right reason or as Sir Edward Cook stiles it the absolute perfection of reason 2 part Instit fol. 179. hateth all partiality or faction in tryals which would unavoydably be if the Law-makers should in any case be the Law-executioners and besides the legal benefit of final appeals to the high Court of Parliament which I judg in Law to be the whole and intire Parliament and not a single House would be hereby totally destroyed for if they should be impowered by Law to be Executers of it and should as it is possible they may do me wrong injustice I am thereby by power destroyd with out remedy which the Law abhors and therefore the wisdom and reason of the Law is such to betrust Judges that rationally are liable to an account in full Parliament and them only to be sole Executors and Dispensers of the Law betwixt party and party and not to betrust the whole Parliament or any part of it with the executing of the Laws but only to betrust them as their fittest work with a power to repeal those Laws that are amiss and to establish and make better in their places But the Laws while they remain Laws and unrepealed are as binding by Law to themselves as the meanest men in England and they have no priviledg of exemption from them saving in freedom of speech within their respective Houses for which they have an act of Parliament to indempnifie them as appears by the 4. H. 8.
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