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A88235 Lieu. Col. John Lilburn's plea in law, against an Act of Parliament of the 30 of January, 1651. entituled, An act for the execution of a judgment given in Parliament against Lieu. Col. John Lilburn. Contrived and penned, on purpose for him, by a true and faithful lover of the fundamental laws and liberties of the free people of England, ... all which compels and forceth the penman to be very studious of his own good and preservation, ... and therefore, for his own good and benefit, the honest readers information, and for Mr Lilburns the prisoners advantage, he presents these ensuing lines to thy view, and his, as the form of a plea; that the penman hereof, as a true well-wisher of his, and the people of England, would have him to ingross into parchment, and to have ready by him to make use of (in case his own braines cannot contrive a better) when he is called up to answer for his life before the judges of the upper-bench, or any other bar of justice whatsoever; and the said form of a plea for him thus followeth verbatim. Lilburne, John, 1614?-1657. 1653 (1653) Wing L2160; Thomason E703_12*; ESTC R202744 14,820 16

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his Army in many of their remarkable Declarations have fully declared against the late 11 members their Accomplices Yea and forced the late Parl. to raze out of their Books and Records many wicked and unrighteous things as they judged them to be after the Parl. had solemnly past them as Votes Orders Iudgments and Acts yea and endeavoured very earnestly to hang divers of those as Traytors that had executed them as particularly Alderman Adams Langham and Bunch with the Lord Major Sr Iohn Gayer c. But the greatest grievances and mischiefs in the world are by the foresaid mischievous and unjust banishing Act established ratified and confirmed for by it a man is condemned to lose his liberty and estate and all the comforts of this life and that without any the least crime committed or accusation exhibited or legal process issued out to summon the party to make any defence in the world or ever calling or permitting him to speak one word for himself Which is an act or proceeding against the light and law of Nature Reason the Law of God against the Law of Honour Conscience and common-honesty yea a dealing worse with the party then ever the cruel Jewes did with Christ or then the bloudy Butchers Bishop Gardiner and Bonner did with the ●oasted Martyrs in Queen Mary's dayes who alwayes suffered them to have due process of law and to know and see their Accusers and to have free liberty to speak for themselves and never condemned them but for transgressing a known and declared Law in being Yea also dealing worse with the party then ever the bloudy Gunpowder Traitors were dealt with by King James who always allowed them fair trials in law from the beginning to the end at the Bar of Justice for their lives Yea it is a worse dealing with the party then ever the Parliament themselves dealt with the bloudiest and most massacring traitors that ever was in arms against them to cut their throats Yea the fore-mentioned practice of the foresaid most illegal and unrighteous Act of banishment is an Act and proceedings in the highest subversion of the fundamental law and liberty of England that can be invented or imagined and by consequence if it may without the highest offence or solicismes in Law be supposed that his Excellency the Lord Gen. Cromwel Major Gen. Harrison and the rest of the Members of the late supream Authority of the Parliament of the Commonwealth of England sitting at Westminster had any real finger in it or were Actors of it they may and ought all of them with all the rest under them that have executed any part of the foresaid unjust injurious illegal Act of Parliament be apprehended indicted and processed against at the common-law as Traytors and subverters of the fundamental lawes liberties and freedoms of the free-born people of England As that learned man in the Lawes of England Sr Edward Cook in the second third and fourth parts of his Institutes all three of which are published by two special Orders of the late House of Commons in Anno 1641. for good Law doth declare and proof was dealt with by Empson and Dudley in lesse Cases then the before recited unjust Act of banishment Which Case of Empson and Dudley was thus At the Parliament holden by King Lords and Commons in Henry the sevenths time who was a most undoubted lawful King of England and by his Marriage of his Wife the Lady Elizabeth Heir apparent to the House of York as Himself was to the House of Lancaster had united the two claims of Lancaster and York in Himself and in pitcht-battel had slain King Richard the third the Usurper and by reason of the extraordinary many troubles of His Reign and the ignorant Regal time in which he lived considered He had a thousand times more grounds to be arbytrary and discretionary in his proceedings with the people of England then the late decapitated Parliament had Yet he summoned a free Parliament who sate peaceably and quietly without the force or purgings of soldiers and after that several Juries at Assizes and Sessions by corruption and favour had refused to fi●de persons that were judicially proved guilty before them of br●ach of penal laws as in full and free Parliament by King Lords and Commons is avowedly declared An Act of Parliament recorded in the 4th part of Cooks Institutes fol. 40 41. in the 11th of Hen. 7. chap. 3 was past by King Lords and Commons in full and free parliament to enable the Justices of Assize in open Sessions to be holden before them and the Justices of peace in each country in England upon information for the King before them to be made to have full power and authority by their discretion with ●ut trials by Juries to hear and determine all offences and contempts committed against penal laws In all which arbitrary or discretion I proceedings murther treason and felony was excepted out of their cognizance or jurisdiction as also all other offences whereby any person should lose life or member or lands tenements goods or chattels to the party complaining By pretext of which statute saith the Lord Cook in his last recited foli● Empson and Dudley privie Counsellors and Justices of peace to Henry the seventh did commit upon the subject insufferable pressures and oppressions which yet at the highest was but the taking away some small part of the persons estates from them that they condemned and therfor● this statute was justly soon after the decease of Henry the seventh repealed at the next Parliament after his decease by the statute of the 1 Hen 8. chap 6. A good caveat saith he to parliaments to leave all causes to be measured by the golden and streight wet-wand of the law and not to the uncertain and crooked cord of discretion For it is not almost credible to fore-see saith he when any maxime or fundamental law of this Realm is altered as elsewhere hath been observed what dangerous inconveniences do follow which most expresly appeareth by this most unjust and strange Act of 11 H. 7. For hereby not onely Empson and Dudley themselves but such Justices of peace corrupt men as they caused to be authorised committed most grievous and heavy oppressions and exactions grinding the face of the poor subjects by penal laws be they never so obsolete or unfit for the time by information onely without any presentment or trial by Jury being the ancient birth-right of the subject but to hear and determine the same by their discretion inflicting such penalty as the statutes not repealed imposed These and other like actions and oppressions by or by the means of Empson and Dudley and their instruments brought infinite treasures to the Kings Coffers whereof the King himself in the end with great grief and compunction repented as in another place we have observed This statute of 11 H. 7. we have recited and shewed the just inconveniences therof to the end that the like should never hereafter
if the King by the right of a Conqueror give lawes to his people shall not the people by the same Reason be restored to the right of the Conquered to recover their liberty if they can What can be more hurtful more pernicious to both then such Propositions as these Which must needs be most truly averred have no end of bloud-shed and murder and all the miseries besides that Tongue can express or Heart can imagine And it is impossible that ever the honest people of England should intrust as in some measure they have done the General and His Officers with the Custody and preservation of their lives liberties freedoms and proprieties with any the least intentions that when they had subdued their common enemies they should subdue their fundamental laws and Rights for the preservation of which the onely Contest with the common enemy was begun and then give them a Law flowing from their uncertain discretionary Wils and pleasures Sure I am that righteous and just David calls those sons of Belial and wicked men that would go about to deprive those that staid with the stuff of an equall share in the Conquest even with those that went out to fight 1 Sam. 30.21 22 23 24 25 c. and sure I am that worthy man in his Age Mr John Pym in his foresaid excellent Speech pag. 22. saith That such Treasons as the subversion of fundamental laws violating of liberties can never be good or justifiable by any circumstance or occasion and therefore by how much the more a trust is upon a man or generation of men by so much the more it makes their Crime in this kind to be the more capital and haynous Therfore to conclude though J. Lilburn the prisoner at the Bar could and might in Law urge many things more against the Parl. legallest power in all manner of Acts of Attainder the Argumenes against which are excellently set down in that rationall highly to be commended Plea in Law entituled The Laws subversion p. 32. or Sr Iohn Maynards Case truly stated in 1648. by I. Houldin Gent. and their non-jurisdiction in the least as to punish any man whatsoever that is not of them for any crime whatsoever and also the absolute irrationallity and illegality of their making a particular law or their setting up of a particular Court for a particular man which are notably and rationally discussed upon in the 2d edition of the book entituled The Picture of the Councel of state p. 4 5 6. the 2d edition of The legal fundamental liberties of England revived asserted vindicated p 71 72 73. yea he might urge many Arguments lawfully to prove that the parl was no parl when they past the said Act of banishment but were long before dissolved and that by their own consents when the late parl took upon them the exercise of Regality the dissolution of Kingship and the House of Lords as is notably endeavored to be proved in the late Discourses of several of the Armies Champions as particularly one licensed to be printed for G. Calvert and another by R. Moon at the seven Stars in Pauls Church-yard Yet he shall close all at present with this last Plea viz. That although by the said unjust Act of banishment the Act it self doth authorize all Judges Mayors Sheriffs Bayliffs and all other other Officers as well Military as Civil in their respective places to be aiding and assisting in apprehending c. the said banished Lieu. Col. John Lilburn yet it authorizeth none of them in the least to arraign try condemn and execute the said John Lilburn mentioned in the said Act and therefore by reason of the insufficiency of the said Act in that very particular although John Lilburn Gentleman now prisoner at the Bar were that Lieu. Col. Iohn Lilburn mentioned in the said Act of banishment as with confidence for the just and legal Reasons at the beginning of this his Plea it mentioned he doth avow he is not yet in regard the Parliament is dissolved that made the said Act which in reason by reason of the said insufficiency of the said Act cannot otherwise be supposed but as they past the Act of banishment themselves against the Iohn Lilburn therein mentioned and meant so they resolved to reserve only to themselves the final judging and condemning of him which cannot be done now without their sitting again And further he avers that its impossible as things at present in England now stands to find a legal number of men or one single legal men to give a legal Commission to any man or men in England to hold a legal Court of Iustice to try Iohn Lilburn now prisoner at the Bar either upon pretence for transgressing the said unjust and illegal Act of banishment or for any other real or pretended Crime whatsoever And therfore the premises duly and legally weighed and considered he prayes and demands as his absolute Right the judgment of the Court upon the insufficiency invalidity of proceedings now had against him on the Keepers of the Liberties of England's behalf in point of Law before he put himself upon the Countrey for any further Trial. Iune 28. 1653. Iohn Lilburn Gent. The illegal Mittimus of the Lord Major WHeras it was enacted by a late Act of Parl. entituled an Act for the execution of a judgement given in Parliament against Lieu. Col. John Lilburne that the said John Lilburne should within twenty days to be accounted from the 15 day of Ianuary 1651. depart out of England Scotland Ireland and the Islands Territories and Dominions thereof and that in case the said John Lilburne at any time after the expiration of the said 20 days to be accompted as aforesaid should be found or should be remaining within England Scotland Ireland or within any of the Islands Territories or Dominions thereof the said J. Lilburne is thereby adjudged a Felon and to be executed as a Felon ●s in the said Act was mentioned And whereas the said J. Lilburne hath been remaining and found since the expiration of the said 20 dayes within the Liberties of the City of London in the Commonwealth of England contrary to the said Act These are therefore in the Name of the Keepers of the Liberties of England by Authority of Parl. to will and require you forthwith upon receipt hereof to receive into your custody the body of the said J. Lilburne whom I send unto you herewith for the Felony aforesaid and him safely to keep untill he shall be delivered by due course of Law and this shall be your Warrant Given under my Hand and Seal Dated this 16 day of Iune in the year of our Lord 1653. JOHN FOWK Major To the Keepers of the Goale of Newgate Postscript Reader if thou perusest the Charges or Proceedings against King Edward the second or King Richard the second or the late King Charles or against the Judges Trisillian Fulthorp Berknap Cary Holt Burge and Lockton with the rest of their Accomplices as also against the late Ship-money Judges Thou shalt clearly finde they were all principally proceeded against For subverting of the Peoples fundamental Laws and Liberties and the setting up Arbitrarines Will and Pleasure July the 2d. 1653. REader I am desired to entreat thee take notice that besides all the Petitions that Mr Lilburn and his friends in and about the City of London the last of which of the Citizens the Soldiers about London freely signed have delivered to the Councel of State for him which are all extant in Print There is besides this P●ea two notable Pieces in print about him The one is entituled A Jury-mans judgement upon the Case of Lieutenant Colonel John Lilburn The other is called A Defensive Declaration of Lieut. Col. John Lilburne printed and re-printed in a second Edition corrected and amended the first of July 1653. And also there i● this day come out in print Mr Lilburn's Letter to the Lord Major of London entituled The Prisoners most mournful Cry against the present Oppression and Tyranny that is exercised upon him Finis