in the House of Lords p. 64. 65 69. Barons in Parliament represent but their own persons p. 97. C Challenges against the Lords p. 5. pag. 70. Clergy base inslavers of this land of old p. 89 90 93 94. Contents of this Discourse p. 6 62. Common-Councel p. 27. Charles-Stewarts jugling pag. 50 51. Charles Stewart not GOD but a meer man and must not rule by his will nor other Kings but by a Law pag. 9 10 11. Charles Stewart received his Crown and Kingdom by contract p. 33. and hath broken his contract pag. 9 14 41 42 43 50 51 52 57. Charles Stewart confuted in His vain proud words p. 32 33. Charles Stewarts Confession and Speeches against himself p. 40 41 56 57. Charles Stewart as Charles Stewart different from the King as King p. 35. Charles Stewart guilty of Treason p. 52 53 54 55 57. C. R. ought to be executed p. 57. D Dukes of Normandy first second third fourth fifth sixth and seventh p. 87. Dukes Marquesses and Viscounts not in England when the great Charter was made p. 98. Davies Sir I. Clotworthies friend his basenesse pag. 102 103 104 105 106. E Edwardus Râ—x Segnier pag. 15 16 88. His gallant Law p. 16. Edward the second p. 26 27 57 58. deposed and his eldest Son chosen p. 27 58 59. Edward the third pag. 27 28 29 30. Excommunication for infringing Magna Charta p. 28. Edward 4. and 5. p. 30 31. Earl of Manchesters and Colonel Kings basenesse p. 49 10â— Englishmen made slaves by the Normans p. 90. F False imprisonment it is to detain the prisoner longer then he ought p. 81. First Dake p. 9â— First Marquesse First Viscount First Parliament in the 1â— of H. 1. see pag. 17. G Government by Kings the worst government of any lawfull Magistracie p. 14. Greenland Company oppressors pag. 101. H Heathens more reasonable then the Lords p. 2. House of Peers illegality p. 43 45 86. and basenesse to the people pag. 44. Henry the 1. p. 17. Henry Mauds eldest son King after Stephen p. 19. Henry the 3. crowned and his basenesse p. 22 23. Henry the 4 5 7 and 8. p. 30 31. Hunscot the Prelates Catchpole now the Lords Darling p. 83. I John brother to R. the 1. chosen King p. 19. His basenesse to the Common-wealth p. 20 21 39. His end p. 22. Judges corrupt p. 23. Imprisonment of L. C. Lilburn p. 63 66. Ireland in her distressed condition cheated and couzened by Sir John Clotworthy and his friend Davies p. 102. to p. 106 K King is intrusted p. 34. Kings tyrannicall usurpation none of Gods institution pag. 7. 8. Kings subordinate to Lawes by God p. 8. and men p. 9 18 19 23 24 26 27 28 29 31 32 33 34 35 36 39 40 41 42 43 52 53 85 86. Kings must not be imposed but by the peoples consents p. 7. 20 32 41 60 61. Kings deposed p. 27 58 59 98. Knights Citizens and Burgesses represent the Lawes p. 97. King no propriety in his Kingdome p. 34. or Cities thereof or Jewels of the Crown and as King not so much as the Subjects in the Kingdoms pag. 32 38. Kings illegall Commands obeyed punished pag. 35 52 53 54. Kings are lyable to be punished pag. 41 59. K. Harrold p. 84 94. L Lawes made this Parliament pag. 33 34. Lieutenant of the Towers basenesse against L. C. Lilburn pag. 5. 48. Lords cause of loosing the Kingdome at first p. 93. Lords no legislative power by consent of the people p. 45 46. Lords may not lawfully sit in the house of Commons pag. 98 99. Lords contradict themselves p. 63. Lords power wholly cashiered p. 40 47 92. Lords overthrown by the Law see p 72. to p. 78. Lords illegality and basenesse against L. C. Lilbarn pag. 47 48. 65 66 67 84. proved so to be p. 62. 81. Lords no Judges according to Law p 69. Lawes included though not expressed Kings must not violate pag. 62. Lords no Judicature at all p. 84 85 86. M Maud p. 17 18. the Empresse taketh K. Stephen in bat tel p. 18. Massacre of the Jewes in England when pag. 19. Magna Charta what it is p. 26. Magna Charta's Liberties confirmed by Hen. the 3. p. 24. And by Edw. the 2. p. 27. And by Edw. the 3. p. 28 29. Members of the House of Commons taxed p. 100 101 102. Merchant-Adventurers p. 99. overthrown p. 42. N Normans whence they came pag. 86 87. Ninety seven thonsand one hundred ninety and five pounds which was for Ireland pursed by 4 or 5 privare men see p. 103 O Orders Arbytrary and illegall against L. C. Lilburn p. 2 47 48. 63 64 66. Odo the Bishop a Bastard seeketh to be Pope pilleth the Kingdom pag. 91 92. Oaths of Kings at their Coronation p. 19 26 28 31 32 33. Oath of K. Stephen p. 18. Oath of Justices p. 29. Objection about H. 8. alteration of the Oath of Coronation answered by the Parliament p. 32. Order of the house of Commons for L. C. Lilburn p. 84. Originall of the House of Peeres pretended power p 94. P Petition of Right confirmed p. 33. the Lords break it p. 2. Petition of L. C. Lilburns wife p. 72. to p. 78. Postscript of L. C. Lilburns p. 6. People must give Lawes to the King not the King to the people p. 85. Popes judgment refused by the people to be undergone by the King as insufferable p. 26. Power of Lords both of judicative and legislative throwne down p. 92 93. Parliament what it is p. 34. their institution p. 95. The manner of holding them p. 95. how kept p. 97. Parliaments greatnesse p. 34 36 37. Prerogative Peerage flowed from rogues p. 86 87. Proceedings of the Lords against L. C. Lilburn condemned by the Commons p. 64. Parliaments kept in old time withou t Bishops Earles or Barons Pag. 96 97. Q Questions of great consequence pag. 101 102. R Rehoboams folly pag 60 61. Richard the 1. pag. 19. Remedy against fraud p. 26. Richard the 2. p. 30. Deposed p. 30. Richard the 3. p. 30 31. Rebellion of the King 90 51. Rewards conferred by William the Conqueror upon his assistants p. 90 91. S Sir John Clatworthies basenesse p. 102. to 106. Stephen Earle of Bollaigne chosen King by free election p. 18. When hee was imprisoned by Maud p. 18 19. the people restituted him out and he was set up again p. 18. Sheriffes of London Foot and Kendrick their illegality pag. 68. Sentence of the Lords against L. C. Lilburn p. 70 71. T Ten Commandements explained p. 9 10. Tyrants Kings plagued by Gods justice p. 11 12 13 17. Tyrannie of Kings p. 13 17 19 20 21 22. Towers chargeablenesse of Fees p. 49. Tryals ought to be publike and examples for it page 81 82 83 84. Turkie Merchants pag. 99. W William the Conquerors History of him p. 14 15 16 45 87 88 89 90 91 92 93 94 95 a Bastard p. 87. His end
Knaves Fooles Tyrants or Monopolizers or unjust wretched persons that must of necessity have their Prerogative to rule over all their wickednesses Secondly Observe from hence from what a pure Fountain our inslaving Lawes Judges and Practises in Westminster Hall had their originall namely from the will of a Conqueror and Tyrant for I find no mention in History of such Iudges Westminster Hall Courts and such French uâ—godly proceedings as these untill his dayes the burthen of which in many particulars to this day lies upon us But in the 21. of this Tyrants reigne After that the captivated Natives had made many struglings for their liberties and he having alwayes suppressed them and made himself absolute He began saith Daniel fol. 43. to govern all by the customes of Normandy whereupon the agrieved Lords and sad People of England tender their humble Petition beseeching him in regard of his Oath made at his Coronation and by the soule of St. Edward from whom he had the Crown and Kingdome under whose Lawes they were born and bred that he would not adde that misery to deliver them up to be judged by a strange Law whâ—â—h they understâ—â—d noâ— Aâ—d saith he so earnestly they wâ—ought that he was pleased to confirme that by his Charter which he had twice â—ore-promâ—â—d by â—is Oath And gave commandment unto his Iâ—stitiaries to see those Lawes of St. Edward to be inviâ—lably observed thâ—ough uâ— the Kingdome And yet notwithstanding this coâ—firmatio◠〈◊〉 the Câ—â—râ—ers afterward granted by Henry the seconâ— â—nd King Iohn to the same effect There followed a great Innovation bâ—th in Lawes and Government in England so that this seemes rather to hâ—ve bâ—en done to acquit the people with a shew of the confiâ—mation of their antient Customes and liberties then that they enjoyed them inessect For whereas before those Lawes they had were written in their tongue iâ—telligible unto all Now they are traâ—slated into Latine and French And whereas the Causes of the Kingdome were before determined in every Shire And by a Law of King Edward sâ—nior all matters in question should upon speciall penalty wâ—tkâ—ut â—urther deferment be finally decided in their Gemote or Conventions held monethly in every Hundred A MOST GALLANâ— LAW But he â—et up his â—udges four times a yeare where he thought good to heâ—â— their Causes Again before his Conquest the inheritances descended not alone but after the Germane manner equally divided to all the children which he also altered And after this King alias Tyrant had a cruell and troublesome raign his own Son Robert rebelling against him yea saith Speed fol. 430. all things degenerated so in his cruell dayes that tâ—me and domestickâ— fowles as Hens Geese Peacocks and the like fled into the Forrests and Woods and became very wild in imitation of men But when he was dead his Favourites would not spend their pains to bury him and scarce could there be a grave procured to lay him in See Speed fol. 434. and Daniel fol. 50. and Martin fol. 8. WILLIAM THE SECOND to cheat and cosen his eldest brother Robert of the Crown granted relaxation of tribute with other releevements of their dolencies and restored them to the former freedome of hunting in all his Woods and Forrests Daniel fol. 53. And this was all worth the mentioning which they got in his dayes And then comes his brother Henry the first to the Crown and he also stepping in before Robert the eldest brother and the first actions of his government tended all to bate the people and suger their subjection as his Predecessour upon the like imposition had done but with more moderation and advisednesse for he not only pleaseth them in their releevement but in their passion by punishing the chiefe Ministers of their exactions and expelling from his Courtall dissolute persons and eased the people of their Impositions and restored them to their lights in in the night c. but having got his ends effected just tyrant-like he stands upon his Prerogative that is his will and lust but being full of turmoiles as all such men are his Son the young Prince the only hope of all the Norman race was at Sea with many more great ones drowned after which he is said never to have been seen to laugh and having besides this great losse many troubles abroad and being desirous to settle the Kingdome upon his daughter Maud the Empresse then the wife of Coffery Plantaginet in the 15. year of his reign he begins to call a Parliament being the first after the Conquest for that saith Dan. fol. 66. he would not wrest any thing by an imperiall power from the Kingdome which might breed Ulcers of dangerous nature he took a course to obtain their free consents to observe his occasion in their generall Assemblies of the three Estates of the Land which he convocated at Salisbury and yet notwithstanding by his prerogative resumed the liberty of hunting in his Forrests which took up much faire ground in England and he laid great penalties upon those that should kill his Deere But in this Henry the first ended the Norman race till Henry the second For although Henry the first had in Parliament caused the Lords of this Land to swear to his Daughter Maud and her Heires to acknowledge them as the right Inheritors of the Crown Yet the State elected and invested in the Crown of England within 30. dayes aftter the death of Henry Stephen Earle of Bolloign and Montague Son of Stephen Earl of Blois having no title at all to the Crown but by meer election was advanced to it The Choosers being induced to make choice of him having an opinion that by preferring one whose title was least it would make his obligation the more to them and so they might stand better secured of their liberties then under such a one as might presume of a hereditary succession And being crowned and in possession of his Kingdome hee assembleth a Parliament at Oxford wherein hee restored to the Clergie all their former liberties and freed the Laity from their tributes exactions or whatsoever grievances oppressed them confirming the same by his Charter which faithfully to observe hee took a publike Oath before all the Assembly where likewise the BBs swore fealty to him but with this condition saith Daniel folio 69. SO LONG AS HE OBSERVED THE TENOVR OF THIS CHARTER And Speed in his Chronicle fol. 468. saith that the Lay-Barons made use also of this policiâ— which I say is justice and honesty as appeareth by Robert Earl of Glocester who swore to be true Liege-man to the King AS LONG AS THE KING WOVLD PRESERVE TO HIM HIS DIGNITIES AND KEEPE ALL COVENANTS But little quiet the Kingdome had for rebellions and troubles dayly arose by the friends of Maud the Empresse who came into England and his Associates pitching a field with him where he fought most stoutly but being there taken hee was sent prisoner to Bristell And after this Victory thus
that so he might bee in an impossibility to understand how they intended to proceed against him Wherefore your Petitioner humbly prayeth to grant unto her husband the benefit of the law to admit him to your Bar himself to plead his own cause if you be not satisfied in the maÌ„ner of his proceedings or else according to law justice that duty and obligation that lyeth upon you forthwith to release him from his unjust imprisonment to restrain prohibit the illegal arbitrary proceedings of the Lords according to that sufficient power instated upon you for the enabling you faithfully to discharge the trust reposed in you and to vacuate this his illegall sentence and fine and to give him just and honorable reparations from the Lords and all those that have unjustly executed their unjust Commands It being a Rule in Law and a Maxime made use of by your selves in your Declaration 2. November 1642. r That the Kings illegall commands though accompanied with his presence do not excuse those col declar 723. that obey them much lesse the Lords with which the Law accordeth and so was resolved by the Judges 16. Hen. 6. s s See Cook 2 part instit f. 187. And that you will legally and judicially examine the Crimes of the Earle of Manchester and Colonell King which the Petitioners husband and others have so often complained to you of and do exemplary justice upon them according to their deserts or else according to Law and Justice punish those if any that have falsly complained of them t t 3. E. 33. 2. R. 2. 5. 37. E. 3. 18 38 E. 3. 9. 12. R. 2. 11. 17. R. 2. 6. 22. p. M. 3. 1. El. 6. And that you would without further delay give us reliefe by doing us justice v v 9. H. 3. 29. 2. E. 3. 8. 5. E. 3. 9. 14. E. 3. 14. â—1 E. 2. 10. All which she the rather earnestly desireth because his imprisonment in the Tower is extraordinary chargeable and insupportable although by right and the custome of that place his fees chamber and diet ought to be allowed him and paid out of the Treasure of the Crown he having wasted and spent himself with almost six years attendance and expectation upon your Honours for justice and raparations against his barbarous sentence c. of the Star-chamber to his extraordinary charge and dammage and yet never received a penny and also lost divers hundred pounds the year he was a prisoner in Oxford Castle for you Neither can he receive his Arrears the price of his blood for his faithfull service with the Earl of Manchester although he spent with him much of his own money And the last yeare by the unadvised meanes of some Members of this Honourable House was committed prisoner for above 3. Moneths to his extraordinary charges and expences And yet in conclusion he was releast and to this day knoweth not wherefore he was imprisoned For which according to Law and Justice hee ought to receive reparations but yet he never had a peny All which particulars considered doe render the condition of your Petitioner her husband and children to be very nigh ruine and destruction unlesse your speedy and long-expected justice prevent the same Which your Petitioner doth earnestly intreat at your hands as her right and that which in equity honour conscience cannot be denied her w w col declar 127 174 244 253 282 284 285. 312 313. 321 322 467 490 514 516 520 521 532 533 534 535 537 539 541. 543 555 560. And as in duty bound she shall ever pray that your hearts may be kept upright and thereby enabled timely and faithfully to discharge the duty you owe to the Kingdome according to the Great Trust reposed in you And so free your selves from giving cause to be judged men that seek your selves more then the publike good We will only speak two or three words to one thing more fully mentioned in her Petition and to another thing not mentioned at all in her Petition very requisite to be taken notice of in the manner of his Tryall which is That by Law it ought to have been publike Now for the first of these which is the illegallity of all their Warrants they committed him by learned and grave Sir Edward Cooke in his most execllent worthy and pretious Exposition of the 29. Chapter of Magna Charta his 2. Part. Institut fol. 52. saith thus Now seeing that no man can be taken arrested attached or imprisoned but by due processe of Law and according to the Law of the Land these conclusions hereupon do follow First that a commitment by lawfull Warrant either in deed or in law is accounted in law due processe or proceeding of Law and by the Law of the Land as well as by processe by force of the Kings Writ Secondly That he or they which do commit them have lawfull authority Thirdly that this Warrant or Mittimus be lawfull and that must be in writing under his hand and seale Fourthly the cause must be contained in the Warrant as for Treason Fellony c. or for suspition of Treason oâ— Fellony c. Otherwise if the Mittimus contain no cause at all it is illegall And if the prisoner escape it is no offence at all Whereas if the Mittimus contained the cause the escape were Treason or Fellony though he were not guilty of the offence and therefore for the Kings benefit and that the prisoner may be the more safely kept the Mittimus ought to contain the cause Fifthly the Warrant or Mittimus containing a lawfull cause ought to have a lawfull conclusion viz. and him safely to keep until he be delivered by Law c. and not untill the party committing doth further order And this doth evidently appear by the Writs of abeHas Corpus both in the Kings-Bench Common-Pleas Exchequer and Chancery See pag. 52 53. 2. part Institut REx Vicecom London Salutem Praecipimus vobis quod corpus Out of the Kings Bench A. B. in custodia vestra detent ut dicitur una cum causa detentionis suae quocunque nomine praed A. B. censeatur in eisdem habeatis coram nobis apud Westm Die Jovis prox post Octab. St. Martini ad submittend recipend ea quae curia nostra de eo ad tunc ibidem ordinari contigerit in hac parte hoc nullatenus omittatis periculo in cumbente habeatis ibi hoc breve Teste Edw. Cook 20. Novemb. Anno Regni nostri 10. THe King to the Sheriffs of Lon. greeting We command you that you have the body of A. B. now detained in your custody as is said together with the cause of this detention by what Name soever the said A. B. be called therein before Vs at Westminster upon Thursday Eight dayes after the Feast of St. Martins to submit and receive what Our Court shall then and there order concerning him Faile not hereof at
Ambassage the most and impious that â—ver was sent by any Christian Prince unto Maramumalim the Moâ—â—â— intituled The great King of Africa c. Wherein he offered to render uâ—to him his Kingdome and to hold the same by tribuâ—â— from him as his Soveraign Lord to forgoe the Christian faith which he held vaâ—â— and receive that of Mahomet But leaving him and his people together by the cares striving with him for their â—â—â—râ—es and freedomes aâ— justly they might which at last brought in the French amongst them to the almost utter ruine and destruction of the whole Kingdome and at last he was poysoned by a Monk It was this King or Tyrant that enabled the Citizens of London to make their Annuall choyce of a Mayor and two Seriffes Martaine 59. The Kingdome being all in broyles by the French who were called in to the aid of the Barons against him and having got footing plot and endevour utterly to extinguish the English Nation The States at Glâ—cester in a great Assembly caused Henry the third his sonne to be Crowned who walked in his Fathers steps in subverting the peoples Liberties and Freedomes who had so freely chosen him and expelled the French yet was hee so led and swayed by evill Councellors putting out the Natives out of all the chief places of the Kingdome and preferred strangers only in their places Which doings made many of the Nobility saith Daniel folio 154. combine themselves for the defence of the publick according to the law of Nature and Reason and boldly doe shew the King his error and ill-advised course in suffering strangers about him to the disgrace and oppression of his naturall liege people contrary to their Lawes and Liberties and that unlesse he would reforme this excesse whereby his Crown and Kingdome was in imminent danger they would withdraw themselves from his Councell Hereupon the King suddenly sends over for whole Legions of Poictonions and withall summons a Parliament at Oxford whither the Lords refuse to come And after this the Lords were summonedto a Parliament at Westminster whither likewise they refused to come unlesse the King would remove the Bishop of Winchester and the Poictonians from the Court otherwise by the common Counsell of the Kingdom they send him expresse word They would expell him and his evill Councellors out of the land and deale for the creation of a new King Fifty and six yeares this King reigned in a manner in his Fathers steps for many a bloody battell was fought betwixt him and his people for their Liberties and Freedomes and his sonne Prince Edward travelled to the warres in Africa The State after his Fathers death in his absence assembles at the New Temple and Proclaim him King And having been six yeares absent in the the third yeare of his reigne comes home and being full of action in warres occasioned many and gâ—eat Levies of money from his people yet the most of them was given by common consent in Parliament and having been three years out absent of the Kingdom he comes home in the 16. year of his reign And generall complaints being made unto him of ill administration of justice in his absence And that his Judges like so many Jewes had eaten his people to the bones ruinated them with delays in their suits and enriched themselves with wicked corruption too comon a practice amongst that generation he put all those from their Offices who were found guilty and those were almost all and punished them otherwise in a grievous manner being first in open Parliament convicted See Speed folio 635. And saith Daniel folio 189. The fines which these wicked corrupt Judges brought into the Kings Coffers were above one hundred thousand marks which at the rate as money goes now amounts to above three hundred thousand Markes by meanes of which he filled his empty coffers which was no small cause that made him fall upon them In the mean time these were true branches of so corrupt a root as they flowed from namely the Norman Tyrant And in the 25. yeare of his reigne he calles a Parliament without admission of any Church-man he requires certain of the great Lords to goe into the warres of Gascoyne but they all making their excuses every man for himselfe The King in great anger threatned that they should either goe or he would give their Lands to those that should Whereupon Humphry Bohun Earle of Hereford High Constable and Roger Bigod Earle of Norfolk Marshall of England made their Declaration That if the King went in person they would attend him otherwise not Which answer more offends And being urged again the Earle Marshall protested He would willingly go thither with the King and march before him in the Vantguard as by his right of inheritance he ought to doe But the King told him plainly he should goe with any other although himself went not in person I am not so bound said the Earle neither will I take that journey without you The King swore by God Sir Earle you shall goe or hang. And I sweare by the same oath I will neither goe nor hang said the Earle And so without leave departed Shortly after the two Earles assembled many Noblemen and others their friends to the number of thirty Baronets so that they were fifteen hundred men at Arms well appointed and stood upon their own guard The King having at that time many Irons in the fire of very great consequence judged it not fit to meddle with them but prepares to go beyond the Seas and oppose the King of France and being ready to take ship the Archbishops Bishops Earles and Barons and the Commons send him in a Roll of the generall grievances of his Subjects concerning his Taxes Subsidies and other Impositions with his seeking to force their services by unlawfull courses c. The King sends answer that he could not alter any thing without the advice of his Councell which were not now with them and therefore required them seeing they would not attend him in this journey which they absolutely refused to doe though he went in person unlesse he had gone into Fraâ—câ— or Scotland that they would yet do nothing in his absence prejudiciâ—â—l to the peace of the Kingdom And that upon his return he would set all things in good order as should be fit And although he sayled away with 500. sayle of ships and 18000. men at Armes yet he was crossed in his undertakings which forced him as Daniel saith to send over forâ—more supply of treasure and gave order for a Parliament to be held at York by the Prince and such as had the managing of the State in his absence wherein for that he would not be disappointed he condescends to all such Articles as were demanded concerning the Great Charter promising from thence-forth never to charge his Subjects otherwise then by their consents in Parliament c. which at large you may reade in the Book of Statutes for which the Commons of
the rest of his Suffragans solemnly pronounced the Sentence of Excommunication whiâ—h then was a feâ— full thunder-bolt against all such who should contradict those Articles which were there publikely read before the Barons and Commons of the Realme in the presence of the King Amongst which the observation and execution of Magnae Charta is required with all other ordinances necessary for the Church and Kingdome and that as the said King had done all stâ—angers should be banished the Court and Kingdome and all ill Councellors removed That the businesse of the State should be treated on by the Councell of the Clergy and the Nobles That the King should not begin any war or go any way out os the Kingdom without the common Councell of the same Daniel fol. 205. Speed fol. 652. But this King for his evill government breaking his Oaths and Contracts with his People was therefore by common consent in full Parliament deposed Which we shall have occasion bâ— and by more fully to speak of and the Bishop of Hereford as the mouth of those Messengers that were sent by the Parliament the Body of the State told him that the Common-wealth had in Parliament elected his eldest Son the Lord Edward for King and that he must resigne his Diadem to him or after the refusall suffer them to elect such a person as themselves should judge to be most fit and able to defend the Kingdome This Prince being crowned raigned above 50. years and hath the best commendation for Manhood and Justice of any Prince that went before him or that followed after him who yet notwithstanding though he came in by election and took the Oath at his Coronation which his Father took before him yet he fayled often in the performance of it Of which the BBp. of Canterbury in an Epistle written to him when hee was in France tells him home of it in these words That it was the safety of Kings and their Kingdoms to use grave and wise Councellors alleadging many examples out of holy Writ of the slourishing happinesse of such as took that course and their infelicity who followed the contrary Then wills him to remember how his Father led by evill Councell vexed the Kingdome putting to death contrary to the Law of the Land divers of the Nobility and wished him to consider what hapned thereby unto him 〈◊〉 to call to mind how himself at first through evill Councell about 〈◊〉 almost lost the hearts of his people But afterwards by the great 〈◊〉 and care of his Prelates and Nobles his affaires were 〈…〉 into so good order as he recovered them and is reputed the noblest Prince in Christendome But now again at present through the 〈◊〉 Councell of such as effect their own prosit more then his honour oâ— the welfâ—re of his People he had caused Clergy-men and others to be arâ—ested and held in prison by undue proceeding without being indicted or convilled contrary to the Laws of England which he saith he was â—â—â—nd by his Oath at his Coronation to observe and against Magna Charta which whosoever shall presume to infringe are to be by the Prelates excommunicate so that hereby he incurred no small detriment to his Soule and to the State and his Honour which he doubted if he proceeded in it would loose both the hearts of the people and their ayd and helpe Daniel Foli 229. 230. For which the King sharply according to his prerogative power reproveth him But shortly after the King found much to doâ— in the Parliament held at London being earnestly petitioned by the whole Assembly that the great Charter of Liberties and the Charter of Forrests might be duly observed and that whosoever of the Kings Officers inâ—ringed the same should loose their place That the high Officers of the Kingdome should as in former times * Read Daniel fol. 149. be elected by Parliament But the King stood stiff upon his prerogative but yet yeelded that these Officers should receive an Oath in Parliament to do justice unto all men in their Officâ—s and thereupon a Statute was made and confirmed with the Kings Seal both for that and many other Grants of his to the Subjâ—cts which notwithstanding were for the most part presently after revoked Daniel fol. 231. But forasmuch as About this time in the Statute-Bookes at large fol. 144. l find was an excellent Oath made in the 18. of Edw. 3. Anno 1344. intituled The Oath of the Justices I conceive it may be worth the reading and therefore it is not unnecessary here to insâ—rt it which thus followeth YE shall swear that well and lawfully ye shall serve our Lord the King and his People in the Office of Iustice and that lawfully ye shall counsell the King in his businesse And that ye shall not counsell nor assent to any thing which may turn him in dammage or disherison by any manner way or colour And that ye shall not know the dammage or disherison of him whereof ye shall not cause him to be warned by your self or by others and that ye shall do equall Law and execution of right to all his Subjects rich and poore without having regard to any person And that you take not by your self or by other privatly nor apertly guift nor regard of gold nor silver nor of any other thing which may turn to your profit unlesse it be meat or drinke and that of small value of any man that shall have any plea or processe hanging before you as long as the same processe shall be so hanging nor after for the same cause And that ye take no Fee as long as ye shall be Justice nor Robes of any man great or small but of the King himself And that ye give none advice nor counsell to no man great nor small in no case where the King is party And in case that any of what estate or condition they be come before you in your Sessions with force and arms or otherwise against the peace or against the form of the Statute thereof made Stat 2. E. 3. 3. to disturb execution of the Common-Law or to â—â—â—ace the people that they may not pursue the Law that ye shall cause their bopies to be arrested and put in prison And in case they be such that ye cannot arrest them that ye certifie the King of their names and of their misprision hastily so that he may thereof ordain a conveniable remedy And that ye by your selfe nor by others privily nor apertly maintain any plea or quarrell hanging in the Kings Court or else-where in the Country And that ye deny to no man common right by the Kings Lettâ—rs nor none other mans nor for none other cause in case any Letters come to you contrary to the Law that ye do nothing by such Letters but certifie the King thereof and proceed to execute the Law notwithstanding the same Letters And that ye shall do and procure the profit of the King and his Crown with
left to do what is aright in his own eyes without either guide or rule the wisdome of this State hath intrusted the Parliament with a power to supply what shall bee wanting on the part of the Prince as is evident by the constant custome and practice thereof in cases of nonage naturall disability and captivity and the like reason doth and must hold for the exercise of the same power in such cases where the Royall Trust cannot bee or is not discharged and that the Kingdome runs an evident and eminent danger thereby which danger having been declared by the Lords and Commons in Parliament there needs not the authority of any person or Court to affirme nor is it in the power of any person or Court to revoke that judgment for as they well say in their Declaration of the 26. of May 1642. page 281. it is not agreeable to reason or conscience that it should be otherwise seeing men should be put upon an impossibility of knowing their duty if the Judgment of the highest Court should not be a rule and guide to them And if the Judgment therefore should be followed where the question is who is King as before in that Declaration they have rpoved it ought much more what is the best service of the King and Kingdome and therefore those that shall guide themselves by the judgment of Parliament ought what ever happen to be secure and free from all account and penalties upon the grounds and equity of this very Statute of 11. Hen. 7. Chap. 1. And again page 697. they say very rationally There must be a Judge of the question wherein the safety of the Kingdome depends for it must not lie undetermined And if then there be not an agreement betwixt his Majesty and the Parliament either his Majesty must be Judge against his Parliament or the Parliament without his Majesty It is unsound and irrationall to give it to his Majestie who out of the Courts is not Judge of the least dammage or trespasse done to the least of his Subjects but the Parliament is the Representative Body of the whole Kingdome and therefore the absolute proper and legall Judge Besides If his Majesty in the difference of Opinions should be Judge he should be Judge in his own case but the Parliament should be Judges between his Majesty and the Kingdome And if his Majesty should be Judge hee should be Judge out of his Courts yea and against his highest Court which he never is nor can be but the Parliament should only judge without his Majesties personall consent which as a Court of Judicature it alwayes doth and all other Courts as well as it Therefore if the King be for the Kingdome and not the Kingdome for the King And if the Kingdome best knowes what is for its own good and preservation and the Parliament be the Representative Body of the Kingdome It is easie to judge who in this case should be Judge And therefore the Parliament are bound in duty to those that trust them to see that the king dispose aright of his trust being that right that the King hath as King in the things he enjoyes is of a different nature and for different ends to the right of propriety which a particular man hath in his Goods and Lands c. That of propriety is a right of propriety which a particular man may dispose of as hee pleaseth according to his own discretion for his own advantage so it bee not contrary to the publike good but the right of the King is only a right of trust which he is to mannage in such wayes and by such Councels as the Law doth direct and only for the publike good and not to his private advantages nor to the prejudice of any mans particular Interests much lesse of the Publike page 700. And therefore say they page 687. The King hath not the like liberty in disposing of his own person or of the persons of his children in respect of the Interest the Kingdome hath in them as a private man may have But if it shall be objected that the Parliament the representative of the Kingdome are not to intermeddle in the managing of his Majâ—sties trust because of the Oaths that they have taken wherein they swear that His Majesty is supreame Head and Governour over all persons and over all causes within his Dominions to which I shal return partly their own answer p. 703. That notwithstanding this they are bound to see it managed according to the true intent condition therof for no man doth nor can give a power to destroy himself and therefore say they If we should say the King hath in the Government of his People Superiors to wiâ— the Law by which he is made and his Courts c. It were no new Doctrine We have an antient Author for it viz. Fleta Book 1. Chap. 17. of substituting of Iudges If we should say the King is the single greatest but lesse then the whole it were no new learning it being an undeniable rule in reason that they that make a thing are alwayes greater then the thing made by them and certainly this of supreame Head and Governour over all persons in all causes as it is meant singular or single persons rather then of Courts or of the Body collective of the whole Kingdome so it is meant in curia non in camera in his Courts that his Majesty is supreame Head and Governour over all persons in all causes and not in his private capacity and to speak properly It is only in his High Court of Parliament wherein and wherewith his Majesty hath absolutely the supream power and consequently is absolutely supreame Head and Governour from whom there is no Appeale And if the High Court of Parliamen may take an account of what is done by his Majesty in his inferiour Courts much more of what is done by him without the Authority of any Courts And for my part say that though the King be the Supream Officer which is all and the most he is yet he is not the supreame Power for the absolute Supream Power is the People in generall made up of every individuall and the legall and formall supream Power is only their Commissioners their collective or representative Body chosen by them and assembled in Parliament to whom the King is and ought to give an account both of his Office and Actions yea and to receive rules directions and limitations from them and by them And although King John the 7. from William the Rogue aiias the chiefe Robber or Conquerour was so Atheistically and impiously wicked as to give away his kingdome of England unto the Pope as is before declared * pag. which was none of his owne to give or dispose of either to him or any other whatsoever which the people that lived in those dayes very well knew and understood and therefore as Speed in his Chronicles records fol. 565. in a generall Parliament held
in or about the year 1214. The Prelates Lords and Commons severally and joyntly enacted That forsomuch as neither King John nor any other King could bring his Realme and People to such thraldome but by common consent of Parliament which was never done and that in so doing he did against his Oath at his Coronation besides many other causes of just exception If therefore the Pope thence forwards should attempt any thing therein the King with all his Subjects should with all their forces and powers resist the same and rather hazzard all their lives and livelihood then endure his usuâ— pationâ— But if any man should so dote upon those Pageanâ—s Tyrants Kings the supposed and pretended aâ—nointed of the Lord as yet not to think it sufficient to prove that not onely the present King Charles his own acknowledgment and confession will be of force sufficient to pull all Scales of blindnesse from their eyes and all hardnesse and unbelievingnesse of heart from their hearts His own words in his answer to the House of Commons first Remonstrance Book Declar. pag. 25. are these We have thought it very suitable to the duty of Our place and pag. 29. and We â—aith he doubt not it will be the most acceptable Declaration a King can make to his Subjects that for Our part We are resolved duly not only to observe the Lawes Our Self but to maintain them agrinst what opposition soever though with the hazard of Our Being and a little below We acknowledge it a high crime saith he against Almighty God and inexcusabâ—â— to Our good Subjects of Our three Kingdomes if We did not to the utmost imploy all Our power and faculties to the speediest and most effectuall assistance and protection of that distressed people of Ireland And in his Message 28 April 1642. page 157. speaking of the Militia he saith We conceive it prejudiciall to Our Self or inconvenient for Our Subjects for whom We are trusted and page 167. Himself saith That if the Prerogative of the King over-whelme the Liberty of the People it will be turned to tyrannie And he himself page 284. defines tyrannie to be nothing else but to admit no rule to govern by a mans own will But above all the rest remarkable is his own confession in his answer to the Parliaments Declaration of the 19. May 1642. where in page 152. He honestly and plainly acknowledgeth that He is to give an account of his Office not only to God but also to his other Kingdoms But as the Parliament saith page 701. This is a strange Paradox that his Majesty by his own Confession owes an â—account to his other Kingdomes of his Office and Dignity of a King in this kingdome itself where he resides and hath his being and subsistence And in page 311. He acknowledgeth God hath entrusted Him with his regallity for the good of his People and if it be for their good then not for their mischief and destruction but God hath entrusted him and how is that The truth is God is no more the Author oâ— Regall then of Aristocratical power nor of Supreame then of Subordinate Command Nay that Dominion which is usurped and not just whilest it remains Dominion and till it be legally again divested refers to God as its Author and Donor as much as that which is Hereditary and permissively from God and not approbationally instituted or appointed by him And that Law which the King mentioneth is not to be understood to bee any speciall Ordinance sent from Heaven by the Ministry of Angels or Prophets as amongst the Jewes it sometimes was It can be nothing else amongst Christians but the actions and agreements of such and such politike Corporations Power is originally inherent in the People and it is nothing else but that might and vigour which such and such a Society of men contains in it self and when by such and such a Law of common consent and agreement it is derived into such and such hands God confirmes the Law And so man is the free and voluntary author the Law is the instrument and God is the establisher of both as the observator in the first page of the first part of his most excellent observations doth observe And though Kings make a huge matter of that saying of God by me Kings Raigne as though there were some superlative naturall inbred inherent deity or exellency in Kings above other men yâ—t we may say anâ— that truâ—y That by God all mankind lives moues and have their being yea and raignes and goveâ—ns as much by God in their infâ—rior orbs of Cityes hundreds waâ—entaâ—es and families as well as Kings in their Kingdoms yea though God himselfe in an extraordinary and immediate manner chose aâ—d appointed Saul David and Solomon to be Kings of Israel Yet so just was the righâ—eous God that â—e wâ—uâ—d 〈◊〉 impâ—se them uâ—oâ— the people of Israâ—l against their own â—ilâ—â— and mindâ—s 〈◊〉 heâ— did tâ—ey rule as Kâ—â—g till by tâ—e câ—mmoâ— câ—nsent of tâ—e people they châ—se â—hem and 〈◊〉 â—heâ— to raigne ovâ—r â—hem 1 Sam. 10. 20. 24. 2 Sam. 2. 24. and Châ—p 5. 1. 2. and 3. and 1 Kings 38 39 â—0 So tâ—at â—hâ—ir authâ—râ—ty did originally as inhereâ—tlâ— flow from the peâ—ple as well as their speciall â—ssigâ—ation from God aâ—d tâ—ey were to rulâ— and govern them by the Law of God â—nd not by the rule and Law of their own wilâ— unto which Law â—hey were to be as 〈◊〉 and subject as the meanest of the people yea and as â—yaâ—le to punishment and to have their traâ—sgrâ—ssiâ—ns â—ayd to tâ—â—ir charge As Lieuâ—eâ—aâ—t Collonâ—l Lilburne â—ath 〈◊〉 and fully proved in his late printed Epistle to Judge Reves pâ—g These things righâ—ly considered doth coâ—demn thosâ— two maxims for wicked ungodly and tyrannicâ—â—l wâ—ich are â—ayd downe so in the booke of Dâ—claraâ—ioâ—s pag 199. 3. 4. viz. That the King can do no wrong The second is that the King is the fountaine of justice But to returne againe to the Kings own word â—e saith pag. 313. We were unwoâ—â—hy the trust repoâ—ed in us by the Law and of our descent from so many great and famous Ancestors if wâ— could be brought to abondon that power which onely can enable us to performe what we are sworne to in protecting our people and the Lawes What can be said more plaine then this to prove him an Officer of 〈◊〉 Trust But seeing he speakes of his Ancestors Let me tell him that if he had no better title to his Crown then to claime it his by a kind of Divine Right from his Progenitors and because he is the next Heire to King James It would be by Scripture a very weak title We find in Scripture that Salomon a younger Son c. was made King principally because of his fitnesse to govern when divers of his elder brethren wenâ— without the Crown And if any in the world might have pleaded the priviledges of being next heire Davids Sons and Sons
Councellers hath now at last resolved to set up his royall Standard and draw his sword for the destruction and ruine of his most faithfull and obedient people whom by the lawes and constitutions of this Kingdome he is bound to preserve and protect Yea and in their answer sent to his Messenger from Nottingham August 25. 1642. pag. 580 They tell him plainly that though they have used all meanes possible to prevent the distractions of this Kingdome which have been not onely without successe but there hath followed that which no ill Councell in former times hath produced or any age hath seene namely those severall Proclamations and Declarations against both the Houses of Parliament whereby their actions are declared Treasonable and their persons Traytors and thereupon your Majesty hath set up your Standard against them whereby you have put the two Houses of Parliament and in them this whole Kingdome out of your protection and as I may truly say have thereupon virtually ceased to be King so that untill your Majesty shall recall those Proclamations and Declarations whereby the Earle of Essex and both Houses of Parliament and their adherents and assistants and such as have obeyed and execuâ—ed their commands and directions according to their duties are declared traytors or otherwise delinquents And unâ—ill the Standard set up in the pursuance of the said Proclamations be taken downe your Majesty hath put us into such a condition that whil'st we so remaine we cannot by the fundamentall priviledges of Parliament the publike trust reposed in us or with the generall good and safety of this Kingdome give your Majesty any other answer to this Message The same language they speake to him in their Petition pag. 584. And in their Message pag. 585. And in their Petition 587. And in their Declaration pag. 576 They say plainly that the King seduced by wicked Councell doth make warre against his Parliament and people And in their Petition sent by Sir Philip Stapleton to the Earle of Essex to be presented to His Majesty pag. 617. They say positively His Majesty warres against the Parliament and subjects of this Kingdome leading in his own person an Army against them as if he intended by conquest to establish an absolute and unlimitted power over them and by his power and the continuance of his presence have ransacked spoyled imprisoned murthered divers of his people yea and doth endeavour to bring over the Rebels of Ireland and other forces from beyond the Seas And in their Declaration and resolution after the King had proclaimed the Parliament and the Earle of Essex Traytors pag. 508. 509. They call that very Proclamation an attempt so desperate and so transcendently wicked that the Lords and Commons do unanimously publish and declare that all they who have advised contrived abâ—â—ted or countenaâ—ced or hereafter shall abett and countenance the said Proclamation to be Traytors and enemies to GOD the King Kingdome and to be guilty of the highest degree of Treason that can be comitted against the King and Kingdome that they will by the assistance of Almighty God and of all honest English Protestants and lovers of their Country do their best endeavours even to the utmost hazard of their lives and fortunes to bring all such unparalleld traytors to a speedy and exemplary punishment Be sure you be as good as your word for GOD of all villians abhors faith-breakers and take heâ—d by your actions and treatyes with the unjust and false King Charles one of the Monsters of the earth you do not give a just and visible cause of ground not onely to all rationall men in England but in the world that knowes reades and understands your often solemn sworne Oathes vowes Protestations and ingagements to judge you a forsworne false and perjured Generation and fit to be abhorred of GOD and all good men for to speake truth and right Hath not Charles Stewart committed treason against King Charles sure I am he hath done it against the KINGDOME of ENGLAND and that I prove by your own grounds thus The Proclamation that you so much cry out of comes out in his name and stile pag. 503. 404. 406. 507. And therefore his Ergo. For he ownes his own Proclamations and Declarations and jeeres you for a company of simpletons for declaring it otherwise His words pag. 248. are All our answers and Declarations have been and are owned by us and have been attested under our hands if any other had been published in our name and without our authority It would be easy for both Houses of Parliament to discover and apprehend the Authors And we wish that whosoever was trusted with the drawing and penning of that Declaration namely the Parliaments dated 19 of May 1642. had not more authority or cunning to impose upon or deceive a major part of those votes by which it passed then any man hath to prevaile with us to publish in our name any thing but the sâ—nce and resolution of our own heart And since this new device is found out in stead of answering our reasons or satisfying our just demandes to blast our Declarations and answers as if they were not our own a bold senselesse imputation we are sure that every answer and Declaration published by us is much more our own then any one of those bold threatning and reproachfull Petitions and remonstrances are the acts of either or both houses Yâ—a and as if all this were not enough to be done by a trust sufficiently for ever to declare the forfeiting of his trust and Kingly Office the King himself hath caused the Iewels of the Crown to be pawned to buy instruments of warre to butcher and murther his people who never gave him any power and authority for any other end but to protect defend and preserve them neither did he ever in his life injoy any other power either from God or man but for that end yet in his speech to the people of SALOP he declares he will melt down all his own Plate and expose all his land to sale or morgage though it be none of his but the Kingdomâ—s that so he may the faster cut the throats and shed the innocent blood of those his brethren that betrusted him with all he had or hath for their good and welfare Yet to fillup the measure of his iniquity he not his evill counsellors hath given Commission to his Commissioners of Array Sheriffes Mayors Justices Bailiffes or any other whatsoever to raise Force and to kill and slay all such as should hinder the EXECVTION of his Royall command or put the Ordinance of Militia though it were for their own preservation in Execution pag. 581. And the same bloody murdering Commissions he hath given to his Instruments in Scotland Ireland to Butcher destroy and ruinate the people there So that to sum up all the Parliament told him plainly in their late letter sent to him at Oxford That he was guilty of all the innocent blood
shed in England Scotland and Ireland since these wars which is the blood of thousands of thousands For which if all the sons of men should be so base and wicked as not to doe their duty in executing justice upon him which Legally may and ought to bee done by those especially who have Power and Authority in their hands Yet undoubtedly the righteous God will and that I am confident in an exemplary manner in despight of all his bloody add wicked protectors and defenders For GOD is a just GOD and will revenge innocent blood even upon Kings Judg. 1 6 7. 1 Kings 21. 19. 22. 38. Isa 30. 33. Ezek. 32. 29. and will repay wicked and ungodly men Isai 59. 18. Therefore I desire those that shall thinke this a harsh saying to lay down the definition of a Tyrant in the highest degree and I am confident their own Consciences will tell them it is scarce possible to commit or doe that act of Tyranny that Charles Stewart is not guilty of and therefore de jure hath absolved all his people from their Allegeance and Obedience to him and which the Parliament are bound in duty and conscience De facto to declare and not to bee unjuster to the Kingdome then their predecessors have been which in part I have already memioned and shall to conclude only cite some particulars of the Parliaments just dealing with Edward the second who was not one quarter so bad as C. R who being called to account by the Parliament for his evill government and being imprisoned at Kenelworth-Castle the Parliament sent Commissioners to acquaint him with their pleasure the Bishops of Winchesâ—â—r Hereford and Lincoln two Earls two Abbots foure Barons two Justices three Knights for every County and for London and other principall places chiefly for the five Ports a certain number chosen by the Parliament And when they came to him they told him the Common-wealth had conceived so irreconcileable dislikes of his government the particulars whereof had been opened in the generall Assembly at London that it was resolved never to endure him as King any longer That notwithstanding those dislikes had not extended so far as for his sake to exclude his issue but that with universall applause and joy the Common-wealth had in Parliament elected his eldest sonne the Lord Edward for King They finally told him that unlesse he did of himselfe renounce his Crown and Scepter the people would neither endure him nor any of his children as their Soveraigne but disclaiming all Homage and Fealty would elect some other for King not of the Blood The King seeing it would be no better amongst other things told them That he sorrowed much that the people of the Kingdom were so exasperated against him as that they should utterly abhorre his any longer rule and soveraignty and therefore he besought all there present to forgive him and gave them thanks for chusing his eldest sonne to be their King which was greatly to his good liking that he was so gracious in their sight Whereupon they proceeded to the short Ceremony of his Resignation which principally consisted in the surrender of his Diadem and Ensignes of Majesty to the use of his son the new King Whereupon Sir William Trussel on the behalfe of the whole Realm renounced all homage and allegeance to the Lord Edward of Carnarvan late King The words of the definitive Sentence were these I William Trussel in the name of all men of the Land of England and all the Parliament Procurator resigne to thee Edward the Domage that was made to thee sometime and from this time forward now following I defy thee and deprive shee of all Royall power and I shall neuer be attendant to thee as for â—ing after this time But if any object It is true Subjects and people have de facto done this unto their Kings but they cannot doe it de jure for that Kings are above their people are not punishable by any but God I answer God is the fountain or efficient cause of all punishment But as to man instrumentally he inflicts by man And though he be our supream Lord and Law-Maker hath for bodily and visible transgressions of his Law appointed a visible and bodily punishment in this world for the transgressors thereof and man for his instrumentall executioner and never ordinarily doth it immediatly by himself but when his Instrument Man failes to doe his duty and being a God of order hath appointed a Magistrate or an impowred man as his and their executioner for the doing of justice and never goeth out of this Road but in extraordinary cases as he doth when the Magistrate is extraordinarily corrupted in the executing of his duty and in such cases God hath raised up particular or extraordinary persons to be his executioners And therefore God being no respecter of persons hath by nature created all men alike in power and not any lawlesse and none to bind each other against mutuall agreement and common consent and hath exprâ—sly commanded Man his rationall creature shall not tyrannize one over another or destroy by any intrusted power each other but that the intrusted Kings as well as others shall improve the utmost of their power and strength for the good and benefit protection and preservation of every individuall Trustee And whosoever he be that shall improve his intrusted power to the destruction of his impowrers forfeits his power And GOD the fountain of Reason and Justice hath endued man with so much reason mercy humanity and compassion to himself and his own Being as by the instinct Nature to improve his utmost power for his own preservation and defence which is a Law above all lawes and compacts in the world Declar. April 17. 1641. And whosoever rejects it and doth not use it hath obliterated the principles of Nature in himselfe degenerated into a habit worse then a beast and becomes felonious to himselfe and guilty of hâ—s own blood This Israel of old the Lords peculiar people understood as well as the people of England although they had 〈◊〉 expresse posiâ—ive law no more then we in England have to rebell or withdraw their obedience subjection from those Magistrates or Kings that exercise their power and authority contrary to the nature of their trust which is plain and cleare without dispute in the case of Rehoboam who was the son of Solomon who was the sonne of David who was assigned King by GOD and chosen and made King by the common consent of the people of Juda and Israel 2 Sam. 7. 13. And who by vertve of Gods promise to him and his seed to be Kings over his people had more to say for his Title to his and their Crown I am confident of it then all the Princes in the world have to say for their claim and childrens to their Crown For Rehoboam was not onely the sonne of Solomon who was in a manner intailed by God himselfe unto the Crown
your perill and see that you haâ—e there this Writ Witnesse Edw Cook 20. Nov. and the Tenth Yeare of Our Raign This is the usuall forme of the Writ of Habeas Corpus in the Kings-Bench vide Mich. 5. Edw. 4. Rot. 143. Coram Rege Kesars Case under the Test of Sir John Markeham REX Vicecom London salutem Praecipimus vobis quod habeatis Coram Justiciariis nostris apud Westm ' Die Jovis prox post In the common pleas for any man priviledged in that Court the like in the Exchequer quinque Septiman Pasche corpus A.B. quocunque nomine censeatur in prisona vestra sub custodia vestra detent ut dicitur una cum die causa captionis detentionis ejusdam ut iidem Justiciar nostri visa causa illa ulterius fieri fac quod de jure secundum legem consâ—etudinem Regni nostri Angliae for et faciend habeatis ibi â—oc breve Test c. THE King to the Sheriffes of London greeting We command you that you have before Our Justices at Westminster upon Thursday next five weekes after Easter the Body of A. B. by what Name soever he be called being detained in your Prison under your custody togetherwith the day and cause of his Caption to the end that Our said Justices having seen the cause may further doe that which of right and according to the Law and Custome of Our Realm of England ought to have done or have there this Writ Witnesse c. The like Writ is to be granted out of the Chancery either in the time of the Term as in the Kings Dench or in the vacation for the Court of Chancery is officiâ—â— justâ—â—ia and is ever 〈◊〉 and never adjourned so as the subject being wrongfully imprisoned may have Justice for the liberty of his person as well in the Vacation-time as in the Terme By these Writs it manifestly appeareth that no man ought to be imprisoned but for some certain cause and these words Ad subjiciend reâ—ipiend c. prove that cause must be shewed for otherwise how can the Court take order therein according to Law And this is agreeable with that which is said in Holy Histdâ—y sine ratione â—ihi videtur mittere vinctum in carcerim cau as â—jus non signifit 〈◊〉 But since we wrote these things passed over too many other Acts of Parliament see now the Petition of Right Anno tertio Caroli Regis resolved in full Parliament by the King the Lords Spirituall and Temporall and the Commons which hath made an end of this question if any were Imprisonment doth not only extend to 〈◊〉 imprisonment and unjust but for detaining of the prisoner longer then hee ought where hee was at the first lawfully imprisoned If the Kings 〈◊〉 come to the 〈◊〉 deliver to the prisoner If he detain him this detaining is an imprisonment against the law of the land c. But look upon 〈◊〉 〈◊〉 Warrant◠〈…〉 committed and 〈◊〉 committed 〈…〉 and you 〈◊〉 not find one legall one amongst them all Now for the second thing before spoken of in the manner of his tryall which is That it ought by Law to have bâ— publike in the presence of all that had a mind to have heard it 〈◊〉 any restraint of any This I find to be claimed by Mr. Pryn at the tryall of Colonell Nat. Fines in the 11. page of his relation thereof which he desired That they might have a publike hearing and that the doâ—e might be set open and none excluded that would come in the which he saith â—e desired the rather because the Parliament the representative Body of the Kingdome had ordered a fair and equall tryall which he conceived as he told the Councell of Warre was to be a free and open one agreeable as he saith to the proceedings of Parliament and all other Courts of Justice in the Realm which stand open to all and from whence no Auditors are or ought to be excluded To which Mr. Dorisla answered that it was against the stile conrse of a Court-Marshall to be publike and open and therefore it might not be admitted upon any tearmes Unto which Mr. Will. Pryn replyed that hee was a common-Lawyer and by his profession his late Protestation and Covenant bound to maintain the fundamental laws of the kingdome and liberty of the Subject which he told the Councell of Warr they themselves had taken vp Armes c. to defend and maintain And saith he by the Lawes and Statutes of the Realm all Courts of Justice ever have been are and ought to be held openly and publikely not close like a Cabinet-Councell Witnesse all Courts of Justice at Westminster and else-where yea all our Assizes Sessions wherein men though indicted but for a private Fellony Murder or trespasse have alwayes open tryals He goes on and in the 12. page thereof tells him that not only Courts of common-Law but the Admiralty and all other Courts proceeding by the Rules of either of the civill or canon-Law the proceedings have ever been publike and the Courts open and even in 〈◊〉 proceedings by Martiall Law before a Conncell of Warre at the Gâ—â—â—d-Hall of London at the tryall of Mr. Tompkin◠〈◊〉 and others it was publike and open in 〈◊〉 of 〈◊〉 〈◊〉 〈◊〉 of Parliament and the whole City no comeâ—s 〈◊〉 〈◊〉 〈◊〉 And he positively tels the Councell of Warre a little further that it was both against the laws and subjects liberty as he humbly conceived to deny any prosecutor oâ— subject an open tryall And he gives divers reasons there for it he goes on and in the 13. page saith That the Parliament when it sits as a Conncell to consult debate or deliberate of the great and weighty affaires of the Kingdome is alwayes private and none but the Members or Officers of either House admitted to their consultations and debates But saith he as the Parliament is a Court of Justice to punish Malefactors so the proceedings of both or either House are alwayes publike as appears by the late Tryall of the Earle of Strafford in Westminster-Hall and infinite other presidents of antient and present time To which I may adde the Tryall of William Laud late Archbishop of Canterbury And this practice is suitable to what we read in Scripture that among the Iewes the Iudges sate openly in the City Gates the most publike place of all And truly he or they that will not suffer Justice to be executed and administred openly bewrayes their own guiltinesse and do thereby acknowledge that they are ashamed of their cause For saith Christ John 3. 20 21. Every one that doth evill hateth the light neither cometh to the light least his deeds should be reproved or discovered but he that doth truth cometh to the light that his deeds may be made manifest that they are wrought in God But so far were the Lords from this just way of permitting Lieutenant Col. Lilburn a publike tryall that the
first time hee came before them Iune 11. 1646. After he was come into the House some of his friends and some strangers stept in as by Law and Justice they might But the Earl of Manchester as Speaker of that House commanded them all to withdraw which they were forced to doe And this I averre not by hear-say but out of knowledge And the second time he came before them which was 23 Iune 1646. It was little otherwise his friends being turned out of doores though some of his enemies scoffers and deriders were permitted to stay And the third time which was upon the 11. Iuly 1646 as I understand he had much adoe with the dore-keepers to get his wife to be admitted in though a great many of the Sheriffes Sharks and Caterpillars that accompany the Hang-man to Tyburn the day he doth execution were freely admitted Hounscot the tyrannicall Prelates old-cruell Catchpole and now the Lords speciall Darling and Favourite a man transcendent in basenesse and wickednesse and therefore more fit sor their Lordships with some others of their own creatures were admitted in as parties fit to bear false witnesse against him and make false reports of his and his honesty And Lieutenant-Colonel Lilburns friends were so far from being admitted into the Lords House to see and behold the justnesse of their proceedings that the doore of the Painted-Chamber was locked and strongly guarded against them and if any of them in the croud got in there they had a second barre at their Lordships doore and if by great chance they at the opening thereof crowded in the Officers that stood at the inner doore took special care to hinder them from admittance there Oh the height of injustice and basenesse at the doing of which or hearing of it the Lords may justly blush for shame if they had either any honesty or ingenuity left in them and thus much for the first Position I come now to the second which is That if the Lords were aâ— Iudicature yâ—t they have no jurisdiction over Commoners But this is so fully proved in Mrs Lilburns Petition that I shall need to say no more to it but referred the judicious Reader thereunto and to a Printed Letter written by Mr. R. OVERTON a prisoner in Newgate committed thither by the Lords to Colonell HENRY MARTIN a Member of the Honourable House of Commons which Letter is a most notable rationall peece worth the reading I passe now to the third which is to give you some reasons to manifest that the LORDS are no Judicature tâ—all But â—eâ—r I shall crave leave to informe the Reader that the foregoing diseourse was made and finished above two moneths agoe and hearing that there was an Order from the Committee appointed by the House of Commons to consider of the priviledges of the Commons of England to bring Lieutenant Collonel Lilburne up before them I conceived he would then be aâ—liberty to write himselfe aâ—d his discourse I thought might adde much to strengthen the things I drive at and desire to declare and prove and therefore I â—avâ— sate still without makeing any pâ—â—gâ—â—sse to finish this discourse till this present conclusiâ—n of this present mâ—neth of November 1646. And my expectation I have not failed for he hath published two notable discourses of his own and some freind of his a third and therefore I shall earnestly desire the studious and inquisitive Reader for the further illustration and proofe of the first and second positions lavd down in pag. 6. and already handled in pag. 63. 64. 65. 78. c. seriously to read over the 23 24 25 26 27 28 29 30 31. pages of his first book called Londons Liberty in Chaines discovered printed Octob. 1646 And the 5. 6 7 8 9. 11. 14. 22. pages of his speech to the aforesaid Committâ—e Nov. 6. 1646. and since by him published in print and called An Anatoamy of the Lords Tyranny And the 23 24 37 38 29 40 41 42 43 44. 46. 47. pages of his friends booke called Vox Pâ—ebis a most notable discourse In the 26 27 28 29 31. 32. pages of which you may reade his Charge and â—entence in the House of Lords Now having premised this I returne to the third thing to be handled which is to give you some reasons to manifest that the Lords House are no â—udicatour at all And for the illustration of this I shall desire it may be considered that no jâ—dicaâ—ure can justly be erected or set up unlesse it legally derive pâ—wer from those that have a legall power to erect constituce or institute it and I thinke this will be granted of all sides And therefore let us make inquisition who according to law and right in England â—ave an originall and true power to erect judicatures aâ—d I say onely the legall Commissioners of the people commonly called the Commons of England Assembled in Parliament and not the King who is not to give a law unto his people but his people unto him as is before largely proved pages 37 38 39 40 41 42 43. And as he confesseth in his Coronaâ—â—on-Oath that he hath taken or ought to have taken which you may read before pag. 31. 32. and which is declared by the statute of provisoes of benefices made Anno. 25. Ed. 3. Annodom 1350. which you may read in the statutes at large pag. 157. about the midst of which you have these words whereupon the said Commons have prayed our said Lord the King that sith the right of the Crowne of England and the law of the said Realme is such that upon the mischiefes and damages which happen to his Realme he ought and is bound by his oath with the accord of his people in his Parliament thereof to make remedy and law and in removing the mischiefes and damages which thereof insue that it may please him thereupon to ordaine remedy and it followes in these words Our Lord the King seeing the mischiefes and damages before mentioned and having regard to the said statute made in the time of his said Grandfather and to the causes contained in the same which statute holdeth alwayes his force and was never defeated repealed nor adnulled in any point and by so much he is bounden by his Oath to cause the same to be kept as the Law of his Reaâ—me though that by sufferance and negligence it hath been sithence attempted to the contrary c. But the House of Peeres neither derive nor challenge their Iudicature not in the least either from Commons in generall or from their Commissioners Deputies Trustees or Representors in Parliament Assembled and therefore are no legall Iudicature at all And that they do not derive their power either from the people under God the absolute and alone fountaine of all true power or their Commissioner read before pag. 45. where you shall finde that the King their groundlesse creator saith they have their power by blood and themselves claime it from no truer fountaine then by
ruled and governed by the King and his Prerogative Nobles and by lawes flowing from their wils and pleasures and not made by common consent by the peoples commissions assembled in Parliament as it is now at this day but he and his successors giving such large Charters to their Compeeres and great Lords as to one to be Lord great Chamberlain of Englands another Lord Constable of England to another Lord Admirall of England c. By meanes of which they had such vast power in the kingdome having then at their beck all the chiefe Gentlemen and Free-holders of England that used to wait upon them in blew Jackets so that they were upon any discontent able to combine against their Kings their absolute creators and hold their noses to the grind-stone and rather give a Law unto them then receive a law from them in which great streits our former Kings for curbing the greatnesse of these their meere creatures now grown insolent were forced to give new Charters Commissions and Writs unto the Commons then generally absolute vassals to choose so many Knights and Burgesles as they in their own breasts should think fit to be able by joyning with them to curb their potent and insolent Lords or trusty and well-beloved Cousins which was all the end they first called the Commons together for yet this good came out of it that by degrees the Commons came to understand in a greater measure their rights and to know their own power and strength By means of which with much struggling we in this age come to enjoy what wee have by Magna Charta the Petition of Right and the good and just Lawes made this present Parliament c. which yet is nothing nigh so much as by right we ought to enjoy For the forementioned Author of the book called The manner of holding Parliaments in England as 20 21. pages declares plainly that in times by-past there was neither Bishop Earle nor Baron and yet even then Kings kept Parliaments And though since by incursion Bishops Earles and Barons have been by the Kings prerogative Charters summoned to sit in Parliament yet notwithstanding the King may hold a Parliament with the Commonalty or Commons of the Kingdome without Bishops Earles and Barons And before the Conquest he positively declares it was a right that all things which are to be affirmed or informed granted or denied or to be done by the Parliament must be granted by the Commonalty of the Parliament who he affirmes might refuse though summoned to come to Parliament in case the King did not governe them as he ought unto whom it was lawfull in particular to point out the Articles in which he misgoverned them And suitable to this purpose is Mr. John Vowels judgment which Mr. Pryn in his above-mentioned book pag. 43. cites out of Holinsh Chro. of Ireland fol. 127 128. His words as Mr. Pryn cites them are thus Yet neverthelesse if the King in due order have summoned all his Lords and Barons and they wil not come or if they come they will not yet appear or if they come appear yet will not do or yeeld to any thing Then the King with the consent of his Commons may ordain and establish any Acts or Lawes which are as good sufficient and effectuall as if the Lords had given their consents but on the contrary if the Commons be summoned and will not come or coming will not appear or appearing will nor consent to do any thing alleadging some just weighty and great cause The King in these cases * Cromptons jurisdictioÌ„ of courts fo 84 Hen. 7. 18. H. 7 14. 1. H. 7 27. Parliament 42. 76 33â— H 6. 17. dju-lged accordingly prerogative 134. cannot with his Lords devise make or establish any Law The reasons are when Parliaments were first begun and ordained THERE WERE NO PRELATES OR BARONS OF THE PARLIAMENT AND THE TEMPORALL LORDS were very few or none and then the King and his Commons did make a full Parliament which authority was never hitherto abridged Again every Baron in Parliament doth represent but his owne person and speaketh in he behalf of himself alone But the Knights Citizens and Burgesses are represented in the Commons of the whole Realm and every of these giveth not consent for himself but for all those also for whom he is sent And the King with the consent of his COMMONS had ever a sufficient and full authority to make ordain and establish good wholesome Lawes for the Common-wealth of his Realm Wherefore the Lords being lawfully summoned and yet refusing to come sit or consent in Parliament canâ—ot by their folly abridge the King and the Commons of their lawfull proceedings in Parliament Thus and more John Vowel alias Hooker in his order usage how to keep a Parliament which begins in the foresaid History pag. 121. and continues to pag. 130. printed Cum Privilâ—gio And Sir Edward Cook in his Institutes on Magna Charta proves That the Lords and Peers in many Charters and Acts are included under the name of the Commons or Commonalty of England And in his Exposition of the second Chapter of Magna Charâ—a 2. part Institutes fol. 5. He declares that when the Great Charter was made there was not in England either Dukes Marquesse or Viscounts So that to be sure they are all Innovators and Intruders and can claime no originall or true interest to sit in Parliament sith they are neither instituted by common consent nor yet had any being from the first beginings of Parliaments in England either before the Conquest or since the Conquest nor the first Duke saith Sir Edward Cook Ibidem that was created since the Conquest was Edw. the black Prince In the 11. year of Edw. the third and Rob. de Vere Earl of Oxford was in the 8. year of Richard the 2. created Marquesse of Dublin in Ireland And he was the first Marquesse that any of our Kings created The first Viscount that I find saith he of Record and that sate in Parliament by that name was John Beumont who in the 8. yeer of Hen. the 6. was created Viscount Beumont And therefore if Parliaments be the most high and absolute power in the Realm as undeniably they are for Holinshed in his fore-mentioned Chronicle in the Dâ—scription of England speaking of the high Court of Parliament and authority of the same saith pag. 173. thereby Kings and mighty Princes have from time to time been deposed from their Thâ—ones â—awes either enacted or abrogated offendors of all sorts punished c. Then much more may they disthrone or depose these Lordly prerogative Innovators and Intruders and for my part I shall think that the betrusted Commissioners of the Commons of England now assembled in Parliament have not faithfully discharged their duty to their Lords and Masters the people their impowerers till they have effectually and throughly done it And if the Lords would be willing to come and sit with them as one house