protection of the law aâ—d not to be permitted to sue for a mans right or to bee staied by injunction or pronibition so that a man cannot proceed All which causes are illegall and contrary to this clause of the great Charter For every man ought to bee permitted to goe to triall judgement and execution in his cause according to the course of the law of the land And if he faile in his suit he shall pay costs and be amerced pro falso clamore Which amencement ought to bee reasonable salvo contenemento that he be not destroyed as is before declared Which payment of destruction is the fourth particular and now comes to be handled The words of the great Charter are That no man shall be any way destroyed but by judgement of his equals or according to the law of the land This word destruere amongst the Grammarians est idem quod penitus evertere diruere to destroy is all one as utterly to overthrow and demolish To destroy a man is to forejudge a man of life limb or liberty to dis-herit to put to torture or death any man without lawfull tryall due preparation to his defence or by SURREPTITIOUS IUDGEMENT All which are contrary to the law of the land It is the Genus of all the former particulars it is the most pernicious extent of all arbitrary power there have been to many examples of it Thomas Earl of Lancaster in the 14. E. 2. was destroyed that is adjudged to dye as a Traytor without lawfull try all of his Peers And afterwards Henry Earl of Lancaster his brother was restored First because that he was not arraigned and put to answer Secondly because that contrary to this Charter of Liberties the said Thomas being one of the Peers of the Realm without answer or lawfull judgment of his Peers he was put to death Such like proceedings were had in the case of John of Gaunt as appears P. 39. Coram Rege and in the E. of Aruudels case Rot. Par. 4. E. 3. Nu. 13. and in Sir John Alees case 4. E. 3. Nu. 2. Such was the destruction committed upon the Lord Hastings in the Tower of London by K. Richard the 3. who sware he would not dye before he saw his head off and thereupon caused him to be executed without tryall answer or lawfull conviction such was the destruction of the Lord Rivers and many other of sad remembrance but above all that Attainder of Thomas Cromwell Earl of Essen who was attainted of high Treason as appears Rot. Part. 32. H. 8. being committed to the Tower of London and forth-coming to be heard and yet never called to answer in any of the Houses of Parliament they sitting which we hope shal never be more drawn into president but wish with a clearned sage in the Law Quod auferat oblivio si potest si non utcunque silentium tegat which is let oblivion take away the memory of so foul a fact if it can if it cannot let silence cover it For the more high and honourable the Court is the more just and honourable it ought to be in the proceeding and to give example of Justice to inferiour Courts for these destructores subditorum dom Regis the destroyers of the free-born people of the Kingdom were ever-odious and hatefull to the subject and severe pains appointed for them as appears by the Statute of Kenelworth Par. 16. and by the old Statute of Rag-man and that this kind of destroying the Kings people is utterly against the Law of the Land is most evident not only by the great Charter but also by the Statute of 5. c. 3. c. 9. and 28. E. 3. c. 3. afore-mentioned and by the ancient Lawes of the Land as appears by Horn in his Mirrour of Justice c 2. sect 3. We proceed now to Exile which is the fifth particular The great Charter runs thus No man shall be exiled but by the Law of the Land Exile or banishment is of two sorts The one a voluntary which is at the Common-Law and that is when a man would abjure the Realm for a Fellony committed by him having taken sanctuary to avoid the punishment of death chusing rather perpetuall banishment then to put himself to the hazard of his life by a legall tryall for his offence as Stamf. Pl. Cor. p. 117. The other is when a man is inforced to banishment which is only legally done by Act of Parliament as appeares by the Statute of Westrn 1. cap. 20 35. El. c. 1. and 39. El. c. 4. and by that Judgment or Statute of banishment made of the two Spencers 15. E. 2. called Exilium Hugonis le-Despencer patris filii for though there was an Order or Ordinance made in the Lords house Anno 6. E. 3. Nu. 6. That such learned men in the Law as should be sent as Justices or otherwise to serue in Ireland should have no excuse yet saith Sir Edw. Cooke 2. part Instit p. 48. That Order or Ordinance being no Act of Parliament it did not bind the subject so that we that are the free-born subjects of England cannot at this day be enforced or compelled to depart the Realme or be exiled or banished from our native Country but by Act of Parliament And from this we passe to examine what is to be esteemed a lawfull Judgment of our Peers and what is here in this Charter meant by the Law of the Land This Great Charter was penned in Latine the words are thus Nec super eum ibimus nec super eummittemus nisi per legale judicium Parium suorum which are more emphatically in the Latine then in our English Translations of this Charter for the Translations render it We will not passe upon nor condemn any man but by the lawfull judgment of his Peers or by the Law of the Land whereas the words in the Latine import That the King shall not in his own person when he is personally present in his high Court of Parliament or any other of his Courts of Justice cause any man to be otherwise tryed or condemned then by lawfull judgment of his Peers or the law of the Land nec super eum mittemus that is That no Judges Commissioners or Justices of the King shall by force of any Writ or Commission from the King under the Great Seal in his absence arraign try or condemn any man but by the lawfull judgment of his Peers or by the law of the Land Now this legale judicium parium suorum or lawfull judgment of a mans Peers is and hath alwayes had a two-fold construction in law the one is When a Lord of the Parliament hath committed treason or felony or other capitall offence whereby he is indictable at the Kings Suite there he by vertue of this Charter ought to be tryed by his Peers that is such as are Lords of Parliament that sit there by reason of their Nobility for no Noble-man that is not a Lord of
by him contrived and caused to be printed and published intituled The just Mans justification Or A Lettnr by way of Plea in Bar hath falsly and scandalously in certain Passages of the said Book affirmed and published concerning the said Earle of Manchester and his demeanour in his said Office and Imployment And touching the complaint by the said Lilburn alledged to be made by him and others to the said Earle relating to the said Earle as followeth Pa. 2. I complained to the Earle of Manchester thereof being both his Generall and mine And at the same time divers Gentlemen of the Committee of Lincoln as Mr Archer c. having Articles of a very high nature against him pressed my Lord meaning the said Earl to a triall of him at a Councell of warre And at the very same time the Major Aldermen and Town-Clerk of Boston came to Lincoln to my Lord meaning the said Earle with Articles of a superlative nature against King their Governor but could not get my Lord meaning the said Earle to let us enjoy justice at a Councel of War according to all our expectations as of right we ought to have had which at present saved his head upon his shoulders And page 8. and 9. of that Book did affirm these words viz We could not at all prevaile the reason of which I am not able to render unlesse it were that his two Chaplaines Lee and Garter prevailed with the Earle meaning the said Earle of Manchesters two Chaplains Ash and Goode to cast a Clergie-mist over their Lords meaning the said Earles eyes that he should not bee able to see any deformity in Colonell King II. THe said Iohn Lilbure within three moneths last past in a certaine book by him contrived and caused to be printed and published hereunto annexed intituled The Free-mans Freedom vindicated or A true Relation of the cause and manner of Lieu. Colonell Iohn Lilburns present imprisonment in Newgate being thereunto arbitrarily and illegally committed by the House of Peeres June 11. 1646. for his delivering in at their open Barre under his hand and seal his Protestation against their incroaching upon the common liberties of all the Commons of England in endeavouring to try him a Commoner of England in a criminall cause contrary to the expresse tenor and form of the 29 chapter of the great Charter of England And for making his legall and just appeale to his competent proper and legall Tryers and Judges the Commons of England in Parliament assembled did falsly and scandalously in the eighth page of that Book publish and affirm concerning the said Earle of Manchester these false and scandalous words I clearly perceive the hand of Ioab to be in this namely my old back-friend the Earle of Manchester the fountain as I conceive of all my present troubles who would have hanged me for taking a Castle from the Cavaliers in Yorkeshire but is so closely glu'd in in interest to that party that hee protected from justice Colonel King one of his own Officers for his good service in treacherously delivering or betraying Crowland to the Cavaliers and never called nor that I could heare desired to call to account his Officer or Officers that basely cowardly and treacherously betrayed and delivered Lincoln last up to the enemy without striking one stroke or staying till so much as a Troop of Horse or a Trumpetter came to demand it His Lordships head hath stood it seems too long upon his shoulders that makes him he cannot be quiet till Lieu. Generall Cromwels charge against him fully proved in the House of Commons be revived which is of as high a nature I beleeve as ever any charge given in there The Epitomy of which I have by me and his Lordship may live shortly to see it in print by my meanes And the said Iohn Lilburne in the Book and page last mentioned in scandall and dishonour to Henry Earle of Stamford a Peere of this Kingdome and late a Commander of Forces of the Parliament maketh this scandalous expression concerning the said Earle of Stamford viz. And for my Lord of Stamford at present I desire him to remember but one Article made at the delivery of Exceter which it may be may in time coole his furious endeavour to inflame the free people of England III. VVHereas the said Iohn Lilburne upon the 10. day of Iune last past by vertue of the Order of the Peeres assembled in this present Parliament was brought to the Barre of the House of Peeres then sitting in Parliament to answer concerning the said Book in the said first Article mentioned the said Iohn Lilburne falsly and maliciously intending to scandalize and dishonour the Peeres assembled in Parliament and their just rights and authorities did then and there in contempt of the said House of Peeres at the open Barre of the said House the Peeres then sitting in the said House in Parliament openly deliver a certain paper hereunto annexed under his hand and seale intituled The Protestation Plea and Defence of Lieu. Colonell John Lilburne given to the Lords at their Barre the 11. of June 1646. with his appeale to his competent proper and legall Tryers and Judges the Commons of England assembled in Parliament which paper is hereunto annexed and since caused the same to be printed and published In which paper among other scandals therein contained he published and affirmed concerning the Lords in Parliament these words following Viz. Therefore my Lords you being as you are called Peeres meerly made by prerogative and never intrusted of improved by the Commons of England And in another place thereof concerning their Lordships and their proceedings in Parliament did protest and publish these words following I doe here at your open Barre protest against all your present proceedings with me in this pretended criminall cause as unjust and against the tenor and form of the great Charter which all you have sworn inviolably to observe and caused the Commons of England to doe the same And therefore my Lords I doe hereby declare and am resolved as in duty bound to God my selfe countrey and posterity to maintain my legall liberties to the last drop of my blood against all opposers whatsoever having so often in the field c. adventured my life there-for and doe from you and your Barre as incroachers and usurping Judges appeale to the Barre and Tribunall of my competent proper and legall Tryers and Judges the Commons of England assembled in Parliament And in pursuance of his said malicious and illegall practice did afterwards contrive and publish a scandalous and libellous letter hereunto likewise annexed directed to Mr. Wollaston Keeper of Newgate or his Deputy wherein among other things he hath caused to be inserted and published these words concerning the Peeres in Parliament viz. Their Lordships sitting by vertue of Prerogative-patents and not by election or consent of the people have as Magna Charta and other good lawes of the Land tell me nothing to doe to
try me or any Commoner whatsoever in any criminall cause either for life limb liberty or estate But contrary hereunto as incroachers and usurpers upon my freedomes and liberties they lately and illegally endeavoured to try me a Commoner at their Barre For which I under my hand and seale protested to their faces against them as violent and illegall incroachers upon the Rights and Liberties of me and all the Commons of England a copy of which c. I herewith in print send you And at their Barre I openly appealed to my competent proper legall Tryers and Judges the Commons of England assembled in Parliament For which their Lordships did illegally arbitrarily and tyrannically commit me to prison into your custody Which Protestation and Papers and matters therein contained doe falsly and scandalously and maliciously charge the Peeres in Parliament with tyranny usurpation perjury injustice and breach of the great trust in them reposed and are a high breach of the Priviledges of Parliament And are high offences against the Lawes and Statutes of this Kingdome and doe tend to the great scandall of the said Peeres and the authority with which they are intrusted to stir up differences between the said Peeres and other the Subjects of this Realme Natha Finch Vpon which Articles he refusing to hear them read as concerning their proceedings against him to be illegall and that as a Commoner of England they had no jurisdiction over him they proceeded to sentence him as followeth Iuly 10. 1646. JT is to be remembred that the 10. day of Iuly in the 22. Year of the Raign of our Soveraign Lord King Charles Sir Nath. Finch Knight His Majesties Serjeant at Law did deliver in before the Lords assembled in Parliament at VVestminster certain Articles against Lieutenant-Colonell Iohn Lilburn for high Crimes and Misdemeanours done and committed by him together with certain Bookes and Papers thereunto annexed Which Articles aad the said Bookes and Papers thereunto annexed are filed among the Records of Parliament The tenour of which Articles followeth in these words Which Articles being by the command of the Lords then and there assembled in Parliament read It was then and there that is to say the said 10. day of July by their Lordships ordered That the said John Lilburn be brought to the Bar of this House the 11. day of the said July to answer the said Articles That thereupon their Lordships might proceed therein according as to Justice should appertain At which day aforesaid the 11. day of July Anno Dom. 1646. the said John Lilburn according to the said Order was brought before the Peers then assembled and sitting in Parliament to answer the said Articles And the said John Lilburn being thereupon required by the said Peers in Parliament to kneel at the Bar of the said house as is used in such Cases and to hear his said Charge read to the end that he might be inabled to make defence thereunto The said John Lilburn in contempt and scorn of the said high Court did not only refuse to kneel at the said Bar but did also in a contemptuous manner then and there at the open Barre of the said House openly and contemptuously refuse to heare the said Articles read and used divers contemptuous words in high derogation of the Justice Dignity and Power of the said Court And the said Charge being neverthelesse then and there read the said John Lilburn was then and there by the said Lords assembled in Parliament demanded what Answer or Defence he would make thereunto the said Iohn Lilburn persisting in his obstinate and contemptuous behaviour did peremptorily and absolutely refuse to make any Defence or Answer to the said Articles and did then and there in high contempt of the said Court and of the Peers there assembled at the open Bar of the said House of Peers affirme that they were Usurpers and unrighteous Judges and that he would not answer the said Articles and used divers other insolent and contemptuous speeches against their Lordships and that high Court Whereupon the Lords assembled in Parliament taking into their serious consideration the said contemptuous carriage and words of the said John Lilburn to the great affront and contempt of this high and honourable Court and the Justice Authority and Dignity therof It is therefore this present 11. day of Iuly ordered and adjudged by the Lords assembled in Parliament That the said Iohn Lilburn be Fined And the said Iohn Lilburn by the Lords assembled in PARLIAMENT for his said contempt is Fined to the Kings Majesty in the summe of two thousand pounds And it is further ordered and adjudged by the said Lords assembled in Parliament That the said Iohn Lilburn for his said contempts be and stand committed to the Tower of London during the pleasure of the said House And further the said Lords assembled in Parliament taking into consideration the said contemptuous refusall of the said Iohn Lilburn to make any Defence or Answer to the said Articles did declare That the said Iohn Lilburn ought not thereby to escape the Justice of the House But the said Articles and the Offences thereby charged to have been committed by the said Iohn Lilburn ought thereupon to be taken as consessed Wherefore the Lords assembled in Parliament taking the premises into consideration and for that it appeares by the said Articles That the said Iohn Lilburn hath not onely maliciously published severall scandalous and libellous passages of a very high nature against the Peers of Parliament therein particularly named and against the Peerage of this Realm in generall But contrived and contemptuously published and openly at the Barre of the House delivered certain scandalous Papers to the high contempt and scandall of the Dignity Power and Authority of this House All which offences by the peremptory refusall of the said Iohn Lilburn to answer or make any Defence to the said Articles stands confessed by the said Lilburn as they are in the said Articles charged It is therefore the said Day and Year last above-mentioned further ordered and adjudged by the Lords assembled in Parliament upon the whole matter in the said Articles contained I. That the said Iohn Lilburn be Fined to the Kings Majesty in the summe of two thousand pounds II. And that he stand and be imprisoned in the Tower of London by the space of 7. years now next ensuing III. And further that he the said Iohn Lilburn from henceforth stand and be uncapable to bear any Office or Place in Military or in Civill-Government in Church or Common-Wealth during his life Die Sabbathi 11. Julii 1646. ORdered by the Lords in Parliament That Iohn Lilburn being sentenced by this House shall for his high Contempt and Misdemenors done to this High Court according to the said Sentence stand committed to the Tower of London for the space of 7. Years next after the date hereof And that the Lieutenant of the said Tower of London his Deputy or Deputies are to keep
the Parliament or any other that sits in the Lords house by Writ Et non ratione nobiliatis can be a tryer of a Lord of the Parliament or challenge this priviledge of tryall in case of Treason Fellony or other capitall offence But a Noble-man of the Parliament shall not have this priviledge either upon an Indictment of Praemunire or upon an Appeale of Fellony at the suit of the party or in any Civill-Action either concerning the right of Lands or of other Possessions or in any personall Action brought by a Common-person against a Lord of the Parliament as appeares unto us by the Bookes of 1. H. 4. f. 1 13. H. 8. f. 12. 10. E. 4. fol. 6. This tryall of Noble-men by their Peers at the Kings Suit is not upon Oath as in the case of common persons for the Peers are not sworn before the Lord Steward before whom this tryall must bee had but they are to be charged by the Lord Steward super fidelitatibus ligeantiis Dom. Regi debitis that is upon their faith and allegeance due to the King and if they acquit the Peer or Noble-man upon whom they passe the Entry is Willelmus Comes E. cateri Antedicti pares instâ—nter super fidelitatibus ligeantiis dicto Dâ—m Regi debitis per praefaruÌ„ SenescalluÌ„ ab inferiori usque ad supremum separatim examinati dicunt quod Wil. Dom. Dacre nox est Culp and so was the Entry in the case of the Lord Dacres 26. H. 8. Spilmans Reports and Cookes Instit 3. part p. 30. If a Noble-man be indicted of Treason Felony or Murder and cannot be found he shall be outlawed by the Coroners of the County and in case of Clergy no Noble-man shall have more priviledge then a common-person where it is not specially provided for them by Act of Parliament as by Stamford pl. Cor. p. 130. is made manifest out of all which we gather that a Nobleman hath this priviledge of tryal as well per lege terra as by this Charter and that anciently legale judicium parium or lawfull tryall of Peers for all manner of persons aswell Noblemen as Commons was vere-dictum duodecim proborum legalium hominum de vicineto a verdict of 12. good and lawfull men of the Neighbour-hood that is of the Commons of England so still remains saving only in this excepted case by the Great Charter which shewes that there can be no legale judicium or lawfull judgment but it must be per legem terrae or according to the Law of the Land which is the other branch of this judgment as to the Commons of England Now to prove that legale judicium parium or lawfull judgment of a mans Peers or Equals is by verdict of 12. men and not otherwise for the word Peers vinvocally signifies both Let us consult both the judgment of Parliaments in this point and the fundamentall lawes of the Land And first for the opinions of Parliaments in this point we finde that by the statute of 25. E. 3. c. 4. None shall be taken by petition or suggestion made to our Lord the King or to his Councell unlesse it be by indictment or presentment of his good and lawfull people of the same neighbour-hood 42. E. 3. c. 3. It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices or matter of Record or by due processe and Writ originall according to the old law of the Land and if any thing be done froÌ„ henceforth contrary it shall be void in law and holden for errour and to say one word for all there are above 50 statutes now in print and in force that warrant this tryall or legale judicium parium suorum or tryall by a mans Equals or Peers made since the Great Charter in severall cases the citing of which statutes for prolixity we avoid And that this manner of tryall was the old law of the Land wee are here to make it appear that this manner of tryall is according to the law of the Land and that there is none other wherein we are to observe this distinction that this legale judicium or lawfull judgment is two-fold The one is of the matter of Fact The other is of matter of Law That which is of matter of Fact is to be tryed per legale indicium parium or a lawfull tryall of a mans Peers That which is of matter of Law is to be tryed by the Judges or Justices of the Land authorized thereunto by the Kings lawfull Commissions To prove that there is no other lawfull Judgment of our Peeres or Equals As touchiug the matter of Fact we are to examine the foundation of this Common-wealth and the originall constitutions thereof We find that King Alfred having reduced this Kingdome of England into an Entire-Monarchy divided it into 38. Counties and each County into severall Hundred and Mannors The Counties were put under the government of Earles who substituted under them Viscounts or Sheriffes for the quiet government of the people the Hundreds and Mannors subordinately under the severall Lords of them The Sheriffes had two Courts to wit the Sheriffes-Tourn and the County-Court The first for offences against the peace of the Land The latter for entry and determination of civill-causes between party and party In the first indictment or presentment of offences was made per-Enquest that is by Juries In the second the Free-suiters that is men of the neighbor-hood The like was done in the leets or viewes of Frankepledge and Hundred-Courts in the Hundreds The like proceedings was in the Leets and Court-Barons of Mannors in those Courts There was no condemnation or judgment given but by the Enquirie of good and lawfull men of the neighbor-hood This every book of the Law tells us for more particular satisfaction read Horn f. 8. and fore-ward These Courts were formed after the modell of the greater Courts of the Realme the Kings-Bench and Common-pleas where greater jurisdiction was as to the matter to be enquired of but no variation originally in the manner of proceeding only the jurisdiction of the Court of Kings-Bench and Common-Pleas in tryals of actions ad dampnum 40. s. flowed over the whole Kingdome The other Courts were confined to their severall limits and might not exceed 40. s. damages these were the originall Courts of the Kingdome and the legale judicium parium or lawfull judgment of Peers was only tryall by Jury of Equals before this great Charter From which tryals this clause is inserted into it and by an inviolable right of law continues in force even to this day as every free subject of England by experience knowes and as every book of our law proves into us the verdict of the Jury in criminall causes being the judgment of Attainder and in civill causes a condemnation as Stamford pl. Cor. p 44. and ali other bookes prove And to leave every man without
scruple in this particular we finde by the statute of Westm the 1. c. 12. That in case of Felony those that refuse upon their arraignment to put themselves upon the Enquest shall be put to pennance for t dure which is stoned or pressed to death because they refuse as the statute saith to stand to the Law of the Land And yet if the party accused stand mute and will not put himselfe upon the Enquest the Judge ought to examine the evidence and to enquire by the Iury whether he were mute of malice or by the Act of God before he shall give judgment against the Prisoner so tender is the Law of the Land of the life of every man that if an Offendor would wilfully cast away his life by contumacy yet he ought not to be condemned but per legale judicium parium suorum or lawfull verdict of a Jury which is according to the Law of the Land this appeares by Stamf. pl. Cor. p. 150. a b c d. Cookes Instit p. 2. part page 178. and so from this legale judicium parium or lawfull judgment of Peers or Equals we come to declare to the free-born subjects of England what this lex-terrae or Law of the Land is And first we say that this lex terrae or law of the Land is the absolute perfection of reason as Sir Edw. Cook 2. part Instit page 179. saith Secondly it is the law of England and therefore all Commissions made to the Judges of the Land run thus That they in all cases that come before them facturi sunt inde quod adjustitiam pertinet secundum legem consuetudinem Angliae the Judges by their Commissions are to judge and act only that which to iustice belongs according to the law of the land and custome of England as 2 part of Cooks Instit p. 51. and dayly experience tells us Thirdly it consists of the lawfull and reasonable usages and customs received and time-out-of-mind observed and approved by the people of this Kingdome for if a custome or usage be not lawfull it ought not to bind Quod ab initio vitiosum est non potest tractu tempor is convalescere saith Vlpian l. 29. Course of time amends not that which was naught from the first beginning and in Jur. Reg. v. 2. q. 117 art 1. non firmatur tractu tempora quod de jure ab initio non subsistat That which was not grounded upon good right is not made good by continuance of time and they must be reasonable too so is Augustines opinion in his Book de vera Religione cap. 31. mihilex essenon videtur que Justa nonest It seemes saith he to me to be no law at all which is not just It must likewise be received and approved by the people Therefore Ulpian F. de leg 32. Leges nulla alia causa nos tenent quam quod judicio populi receptae sunt the lawes doe therefore bind the Subject because they are received by the judgment of the Subject and Gratian in Dec. distinct 4. Thum demum humane leges habent vim suam cum fuerint non modo institutae sed etiam firmatae approbatione Comunitatis It is then that humane Laws have their strength when they shall not only be devised but by the approbation of the people confirmed Fourthly this law of the land consists of the antient Constitutions and moderne Acts of Parliament made by the Estates of the Realme but of these only such as are agreeable to the Word of God and law of Nature for as Gregory de valentia Ex Tho. q. 93. art 3. q. 94. art 34. well observes Humane law is a righteous Decree agreeing with the Law naturall and eternall and Augustine de libero Arbitrio cap. 36. nihil justum est atque legitimum quod non ab aeterna lege sibi homines derivaverint there is nothing just and lawfull which men have not derived unto themselves from the law eternall And Horn cap. 5. sect 1. saith That torvous usages and unjust decrees not warrantable by Law nor sufferable by holy Scripture are not to be used or obeyed Out of all which premises wee conclude that the Law of the Land is the Law of England the perfection of reason consisting of lawfull and reasonable Customes received and approved by the people and of the old Constitutions and modern Acts of Parliament made by the Estates of the Realme and such only as are agreeable both to the law eternall and naturall and not contrary but warrantable by the Word of God whatsoever laws usages or customes are not thus quallified are not the law of the land nor are to be observed or obeyed by the people as being contrary to their Birth-right and the freedome and liberty which by the law of God the lawes of the Land and this great Charter they ought to enjoy The summe of all is that according to this Charter the statute and lawes afore-mentioned no man ought to be taken or imprisoned or disseized of his free-hold liberties or free-customes or out-lawed or banished or my manner of way destroyed nor condemned but by lawfull tryal of his Peers or Equals or by the law of the Land that is by due processe of Law by presentment or indictment of good and lawful men where such deeds he done in due manner or by Writ originall at the Common-law according to the old law of the Land Here we will answer an objection that we heare is made which is that this is an old Law and many lawes have been made against it since it was granted which weaken the strength of this Charter To this we answer That by the Statutes of 28. E. 1. called Articuli super Cartas 25. E. 1. vet Magna Charta fol. 137. and 37. called confirmatio Chartarum It is provided That if any judgment be given against any points of this great Charter or the Charter of the Forrest by any Iustices of the King or other his Ministers it shall be undone and holden for nought and by the statute of 42. E. 3. cap. 1. all Statutes made against Magna Charta are repealed True it is we find that 11. H. 7. c. 3. by the practises of Empson and Dudley there was a statute made in the face of this great Charter whereby many exactions and oppressions were put in practice upon the free subjects of England to their great trouble and vexation but Oh! for the like justice now and if it were not what would become of all our Ship-money Judges monopolizing Pattentee Merchants and arbitrary Committee-men we find withall that they were hanged that put it in execution and in the 1. H. 8. c. 6. That illegal Statute of 11. H. 7. was repealed and made void and the cause specified to be because it was against this Great Charter and the law of the Land but to put all out of doubt These clauses of the Great Charter which we have discoursed upon hitherto are all
him in safe custody accordingly And that he doth take care that the said Lilburn do neither contriue publish or spread any seditious or libellous Pamphlets against both or either of the Houses of Parliament To the Lieutenant of the Tower of London his Deputy or Deputies And because this Sentence was conceived not to be severe enough by the Lieutenant of the Tower hee did procure an Order dated Die Mercurii 15. Julii 1646. which followes in these words Die Mercurii 15. Iulii 1646. ORdered by the Lords in Parliament assembled That none shall speak with John Lilburn now a prisoner in the Tower of London but in the presence and hearing of his Keeper And that when he shall desire to take the Ayre within the Tower his Keeper shall constantly goe with him forth and back and stay with him till he return to his Lodging and that if his wife desire to come to him she shall reside with him and not go in and out during his imprisonment in the said Tower And lastly it is Ordered That this restraint of speaking with the said Lilburn shall be taken off when he shall give good Bayle to this House not to contrive write or publish any scandalous or libellous Pamphlets or Papers against both or either of the Houses of Parliament Die Mercurii 16. Septem 1646. IT is this day Ordered by the Lords in Parliament assembled That the Lieutenaut of the Tower of London his Deputy and all others imployed him shall permit and suffer the wife of Lieutenant-Colonell Iohn Lilburn to come to him and reside with him when and as often as he shall desire any former Order of this House notwithstanding Iohn Brown Cler. Parliamentorum We will not say their Lordships are unjust in this Sentence yet we hope it shall not be accounted scandall to them if we say and make it appear that they have erred therein both in manner of proceeding and in substance of matter or point of jurisdiction both of the person and cause for we do presume that their Lordships will not presume an infallibility of Judgment it being a quality incompatible to or with any sublunary creatures and wee finde by our bookes of 21. E. 3. f 46. that a Parliament may and hath erred And first we shall declare their Lordships errour in their manner of proceeding against this worthy Patriot wherein we shall observe That the 10. of Iune he was summoned to attend their Lordships in their house The 11. of Iune he appeared and was then committed by their Lordships to Newgate The 16. of the same moneth he appealed to the Right Honourable House of Commons The 22. their Lordships sent to the Keeper of Newgate to bring him to their Bar And thereupon the 43 day he was committed close prisoner to Newgate being brought by the Keeper of Newgate where he remained close prisoner till the 16 of Iuly At which time his Charge was brought into the Lords House and not before Wherein we are first to note that he was summoned and committed a moneth before his Charge brought in and after his appeal and for that cause made close prisoner 18. dayes before any Charge recorded against him All which proceedings are erroneous and principally in these two points First because he was summoned before his Charge was recorded for regularly both in Law and Equity the Declaration or Bill ought to be filed or recorded before any Writ or Processe ought to issue against the Defendant or Party accused either in civill or criminall causes and the Writor Processe ought to contain the matter of the Declaration or Bill as in a Writ of Right These words Quid clamat tenere import a Count or Declaration recorded so a Writ of Warrantia Diei contains the substance of the Count in a Monstraverunt the Plaintiffs title is set forth by the Writ Nay in every Writ at Common-Law the Writ doth by these words ut dicitur or by some other Emphaticall word contained in the body of the Writ import that a Declaration or Count is filed registred or recorded before the Writ doth issue and this appears clearly in every Writ set forth by the Register and Fitzherberts Natura brevium Nay every English Bill either in Chancery Exchequer or Star-Chamber doth pray that Processe of Sub-paena be awarded against the Defendant which proves that processe ought not to be awarded against any man out of any Court till his charge bee recorded against him in the same Court If this was so in the Justice of the Star-Chamber in criminal causes we hope their Lordships will not condemne it as an Injustice in themselves to follow the same Rules of Right Reason Law and Equity Secondly their Lordships proceedings against him after his Appeal made to the honourable house of Commons were void in Law for by the Appeal to the proper jurisdiction the Lords were outed of their jurisdiction or Connusans of the Plea sublata causa tollitur effectus the Cause being removed by the Appeale their judgment thereby was determined or at least suspended being but the effect of the cause before them till such time as the Appeal is determined the Appeal being a supersedas to their Lordships further legall proceedings in the same cause and wherein they ought not to have proceeded without the privity licence and direction of the house of Commons and therefore all their proceedings since Mr. Lilburns Ap. peal presented to and accepted by the house of Commons are Coram non judice and therefore void and erroneous We shall not deny the Lords house to be a Court of Justice and that of Record too and of the highest degree in the Kingdom co-operating with the honourablt House of Commons but when they are distinct and apart in their severall operations and judgments we do conceive that they neither have a legislative nor unlimitted power of judicature in themselves neither can they proceed to determine any thing out of the way of the known Lawes by any arbitrary or discretionary Rules where there is a known Law in the case Sir Edw Cook doth well set forth the distinct powers of Judicatures of both houses in his 4. part of Institutes p. 23. It is to be known saith he that the Lords in their house have power of Judicature and both Houses together have power of Iudicature which is thus to be understood That the Lords have power of Iudicature over their Members alone viz. their Peers the Nobility of England that sit in the Lords House The Commons have power of Iudicature over all the Commons of England by themselves alone and the Lords and Commons joyning have power of Iudicature over both Peers Lords and Commons That this is true is manifest by the Lord Dacres case p. 26 H. 8. reported by Iustice Spilman where it was resolved that a Noble-man of Parliament cannot wave his tryall by his Peers and put himselfe upon the tryall of the Country for by the Statute of Magna Charta c. 29 every