The LAWES Funerall OR An Epistle written by Lieutenant Col. JOHN LILBURN Prisoner in the Tower of London unto a friend of his giving him a large relation of his defence made before the Judges of the Kings Bench the 8. of May 1648. against both the illegall commitments of him by the House of Lords and the House of Commons and how that the Judges in open Court were necessitated to confesse there is by neither of the commitments any crime in Law laid unto his Charge yet though he was imprisoned for nothing being committed by a superiour Court the Lords and that upon a Sentence they could not release him but remanded him back again Prisoner unto the Tower which is a full Declaration there is no Law left in England now but that the people thereof must be governed by the lust will and pleasure of the House of Lords c. and though they deale never so unjustly with them to the causelesse destruction of their Lives Estates and Families yet the Judges of England being in deed and in truth meere Ciphers cannot remedy it because it is done by their superiours the House of Lords wherefore the said Iohn Lilburne doth declare his sorrowfulnesse in his great mistake in zealously stirring up the people of England to stand up to maintain their Lawes seeing they have none in being but the will of the Lords and therefore according to his promise to the Judges in open Court he provokes all the Commons of England out of all the Counties thereof to hasten up to Westminster to the Lords house and there suffer the Lords who now have conquered and subdued all their Lawes to bore them through their eares as their vassalls and slaves if they can beare it with patience Proverbs 28.1 The wicked flye when none pursueth but the Righteous are as bold as a Lyon Deare Sir AT your earnest desire I cannot chuse but give you and the world as perfect account as I can of all that passed before the Judges of the Kings Bench in reference to my selfe upon Munday last being the 8. of this present May. And in the first place I must intreate you to take notice of the reason or cause of my being there that day which was upon my own earnest desire for looking upon my selfe unavoidably in the roade way of destruction in the continuance of my causelesse and arbitrary imprisonment and finding the generality of the House of Commons who should be the true and faithfull conservators of the Lawes and Liberties of England deafe unto Justice and their eares and hearts sealed up against it so that of them I for my part may almost complain as the Psalmist doth they are all gone aside they are altogether become filthy there is none that do good no not one for they eat up the people as they eat bread and call not upon the Lord. Psal 14.3.4 I say at the serious consideration hereof musing with my selfe what to do for my own preservation and the preservation of my wife and little Children which nature and the Law of God teacheth me to endeavour with all my might who are all in the eye of reason unavoidably destroyed in my continuance in prison and I was staved of in my own Conscience from the use of extraordinary meanes for my deliverance till I had attempted what the Judges of the law would do for me whom I lookt upon as my last legall refuge and supposed they might happily do me some good but I durst not feede my thoughts with any confident hopes of Justice from them being they are created and made Judges by the power and authority of my potent adversaries and therefore must needes serve their ends or else be thrown out of their places yet I was resolved to put all the strength I had to the work and for that end I the 4. of April last writ an effectuall letter to the Speaker of the House in print intitulled it The Prisoners Plea for a Habeas Corpus therein print my Petitioned to the Judges of the Kings Bench for my Habeas Corpus and because Councell the last Teime had failed me and durst not move for me I was necessitated to write another Epistle the 7. of April 1648. to all the morall honest Englishmen in and about the City of London whether Episcopall Presbyterian or those commonly called Sectaries and in print intitulled it The oppressed mans importunate and mournfull cryes to be brought to the Barre of Justice in which I earnestly intreat them the first day of the Tearme being April the 19. 1648. to deliver my Petition for me and get me a Habeas Corpus which now I thank them divers of them did and procured me a Habeas Corpus which the Lieutenant of the Tower withstood and did not carry up my body whereupon I by a new Petition complained of him to the Judges but they in my apprehension grew somwhat deafe upon which I was necessitated the very present to write a rufling letter to Judge Roll which in print is intituled Vpon which letter I had an Alias granted me with a penalty of 40 l. which the Lieutenant obeyed and accordingly upon Munday last sent my body to Westminster where I arrived betwixt 8. and 9. a Clock and found both the Judges and my Grandee Adversary Soliciter Sr. Iohn c. very hard at whispering discourse neare the Chancery Court and upon the Judges going to the Bench I stept to the Barre and presently the Lieutenant of the Tower was called to make a returne of his Habeas Corpus whereupon his Servant Mr. Comport and my Keeper made answer here was the Prisoner Mr. Lilburne at the Barre upon which the Judge asked him for the returne and he told him he was but a Servant and at the Command of the Lieutenant had brought up the body of Mr. Lilburne which was all the returne he had and immediately the Lieutenant himselfe as I conceive gave in the returne and then Mr. Iustice Bacon demanded of me where my Councell was and being standing up upon a high place before the Bench with a loud voice I answered him I had none neither would I have any but desired to cast the weight of my Cause upon my own abilities which were sufficiently able to inable me to plead my cause my selfe before them and therefore Sir said I with a shrill voice I crave and demand at your hands as my naturall and undoubted right the same benefit and priviledge that Paul alwayes injoyed from the hands of the Pagan and Heathen Roman Judges who alwayes gave him free liberty as his Right to plead his Cause before them and to speake in the best manner he could for himselfe but Sir if you will not follow that just example of the Pagan Roman Judges Then in the second place I crave the same priviledge from you that I injoyed from the hands of the Caviliers at Oxford who when I stood before Judge Heath for my life being arrained
Cofers at their pleasure full and get in to them all the money of England therefore let rich men look about them in this particular and in a second regard also more dangerous then this forasmuch as it concerns life let all men I say look well about them for I am confident of this that I suffer so much Barbarism from Cromwel and his Creatures who are not willing to come to a tryal with me for the Leiutenant of the Tower hath already denyed me the benefit of the Law of England in not obeying my first Habeas Corpus and would not suffer me without fresh strugling to come to a legal tryal and thereby have before the sun convicted themselves of wickedness and unrighteous dealing with me for saith Christ John 3.20 Every one that doth evil hateth the light neither commeth to the light lest his deeds should be reproved or discovered I say I am confident I suffer so much from Cromwel c. for opposing and throwing down the Lords Tyranny which he did and still is evident he doth intend to make the arbitrary yet seeming legal ax to chop off the head of every man in England he hath a mind to destroy any otherwise then by wilful murder as he did Richard Arnal at Ware and having been under God the chief Instrument to break him of that damnable and wicked design he and his Creatures therefore are as mad at me as so many mad men c. Although they have done so much already in destroying the Law and setting up Arbitrary Tyranny that I will make it good with my life divers of them viz. of the House of Lords c. better deserve Tower hill therefore then ever Srafford did but what a company of foolish silly Creatures are Cromwel and his confederate Grandees who would pretend to give those Commoners of England a tryal according to Law and Justice ☞ whose lives they would take away by a tryal before the Lords * Here I began and said Sir what an errational thing is it for the Lords to go about at their bar to try Commoners for their lives when as men that know the Law c. when as men that know the Law of England fully knows that if the present Lords were a true House of Lords as before I have fully proved they are not yet they were not able legally to try one of themselves for though the body of their House in case they were twelve or eighteen and under they cannot be should be in the nature of a grand Jury and petty Jury and so the Judges of matter of Fact yet they must have a Judg of matter of Law too and that must be a Lord high Steward which they neither have nor are able legally to make and therefore have no colour of power in Law to try one of themselves much less a Commoner that is none of their Peer or equal whom the Law hath again and again expresly prohibited them to meddle with but enough for the Lords at present and now two things more distinctly for the House of Commons First admit they had a Jurisdiction in executing the Law which I have before already fully proved they have not yet all Courts of Justice established by Law in England are bound and tyed to Judg no man but by witnesses sworn according to the Law they being the evidence to the Jury and Judg 3. part instit fol. 163. But they never put Masterson my accuser to his oath in his Information he delivered against me although he were but a single informer never any man of all the large company besides himself appearing against me and therefore no shadow or colour for the House of Commons to adjudg or condemn me to prison thereupon seeing no man whatsoever can be condemned by any Court in England without witnesses sworn against him according to Law but if he had delivered what he did deliver against me upon his oath it had been never the legaller because they have no power nor never had to administer an oath and therefore cannot by the Law of England in the least pretend any Jurisdiction over me in cases Criminal or any power at all to commit me to prison for where the Court hath no authority to hold plea of the Cause there all proceedings are Coram non Judice and there perjury though Masterson had sworn never so falsly cannot be committed and so against all reason a man is left at liberty to say without fear of punishment what he please because it being not in a Judicial Proceeding no perjury can be committed by Law and that the House of Commons hath no power to administer an oath is evident in that the Law gives them none nor they never practised it and therefore if they would now put it in use they cannot legally of themselves now begin to do it For as learned Cook saith in his Chapter of perjury 3. part instit fol. 165. An oath is an affirmation or denyal of any thing lawful and honest before one or more that have authority to give the same for advancement of truth and right calling Almighty God the searcher of all hearts to witness that his Testimony is true so that saith he an oath is so sacred and so deeply concerning the Consciences of Christian men as the same cannot be administred to any unless the same be allowed by the Common Law or by some Act of Parliament neither can any oath saith he allowed by the Common Law or by Act of Parliament be altered but by Act of Parliament no nor a new oath raised and therefore he declares it to be a high contempt of the Law of England for any man to administer an oath without warrant of Law and to be punished by fine and imprisonment and of all a And here I skipped seven or eight lines to this mark ☞ oaths in use in England This oath of Confirmation for deciding and ending of Controversies is the only and alone warrantable oath by the Law of God Mat. 5.34 35 36 37. and Heb. 6.16 17. James 5.12 And as for other oaths I know no use in the world of them for those men that do not love things that are excellent for the excellency inherent in them will never love nor honor them for oaths sake But ☞ the House of Commons wanting a legal power to administer an oath it is a clear demonstration and proof that they have no power or Jurisdiction at all in Law to decide Controversies betwixt a man and his neighbour especially in times of peace when all the ordinary Courts of Justice are open and therefore have no shadow or colour in Law to adjudg or commit any man that is not a Member of them to prison And in b But all this president to avoid disputes I skipt over for the Judges prest that the House of Commons owned the Lords Jurisdiction in some cases to which I answered I owned it as well as they and
convert all my zeale to presse all the Commons of England out of all the Counties thereof to hasten up to Westminster to the Lords House and there at their dore susser the Lordn to bore them through their cares as their Vass is and slaves being heir actions clearly and dayly declare they never intended them any freedom Law or Justice and absolutely it is a vaine thing and time meerely lost from their hands to expect any so Judge Roll concluded and said they were upon their Oathes and as Judges of the Law they could do no other bat remand me to prison againe unto which ipaciently stooped and came away but had much ados to get out of the Hall by reason of the extraordinary crowde And the next day sending to see what was entered in the booke about me the Clarke or Regester sents me a paper in these words Munday after five weekes of Easter in the 24. of King Charles Tower of London Iohn Lilburne Gentleman brought here into the Court upon an Habeas Corpus by Robert Titchburne Esquire Lieutenant of the Tower of London and the returne of the said Habeas Corpus being read he being committed by the Lords and Commons in this Parliament of England assembled it is ordered that he shall be remitted O superlative Justice was ever any man committed or remanded to prison before by those Judges that in open Court declare he hath been already almost 2. yeares in prison for nothing and now also they have no crime to lay to his charge which is my case but to draw to a conclusion I desire to fulfill my promise and give you a sight of the returne which thus followeth J Robert Titchbourne Esquire Keeper of the Tower of London according to a shore Writ of our Lord the King to this scedule annexed certifie That Iohn Lilbourne Gentleman in the said Writ mentioned was committed and is detained in my custody by vertue of an Order made the eleveth day of Iuly 1646 by the Lords in the present Parliament of England assembled and then sitting the tenour and scope of which Order followeth in these words Die Sabbati undecimo Iulii 1646. ORdered by the Lords in Parl. assembled That John Lilburn being sentenced by this House shall for his high contempt and misdemeanour done to this high Court according to the said sentence stand committed to the Tower of London for the space of 7. yeares next after the date hereof And that the Lioutenant of the said Tower of London his deputy or deputies are to keepe him in safe custody accordingly And that he do take care that the said L. C. John Lilburn do neither contrive publish or sptead any seditious or libellous Pamph lets against both or either Houses of Parliament Iohn Brawne Cler. Parl. To the Lieutenant of the Tower of London his Deputy or Deputies And further I certifie our Lord the King that afterward to wit upon the 18. day of Ian. 1647. It was ordained by the Commons in the said Parl. assembled as followeth in these words Die Martis 18. Ian. 1647. Resolved c. That the Licutenant of the Tower be hereby required to bring up to the Bar of this House to morrow morning at nine of the Clock L. Coll. Iohn Lilburne his Prisoner Hen. Elsynge Clar. Parl. D. Com. By vertue of which I the said Rob Tichbourn the said Iohn Lilbourn brought up to the laid House of Commons in the said Parl assembled by whâ—â—â— afterward the said Iohn Lilburne was againe committed to wit upon the 19. day of Jan. 1647. to my custody and in like manner is detained by vertue of an order made by the said Commons in Parliament assembled the tenour of which order followeth in these words By vertue of an Order of the House of Common these are to require you to receive from the Sergeant at Armes or his Debutie the body of L. Col John Lilbourne into the Tower of London and him there to detaine in safe Custody as your Prisoner in Order to his tryall according to Law be being committed for treasonable and seditions practices against the state and for so doing this shall be your warrant Dated Jan. 19. 1647. Wil. Lenthall Spâ—â—â—â—â— To the Lieutenant of the Tower of London The said Iohn Lilburn is also detained in my Custodie by vertue of another Order made by the said CoÌ„mons in the said Parl assembled the tenour of which Order follovveth inthese words Die Martis 18 April 1648. Resolved c that the 4. Aldermen of London Col Lilburne for Iohn May and do continue in the Tovvervv thout being removed from thence H. Elsing Cler. Parl. D. C. These are the causes of the keeping and detaining the said Iohn Lilburne in my enstody whose bodie before our Lord the King at the day and place in the said vvrit contained I have ready as by the said vvrit is commanded Robert Titchburne Keeper of the Tovver of Lonodn So deare friend with my service presented to you I rest yours faithfully John Lilburne Tower the 15. of May. 1648. FINIS
in Irons for High-Treason in levying Warre by the Parliaments Command against the King he nobly told me he would give me the utmost priviledge that the Law of England would afford me and further declared unto me it was my right by Law to plead for my selfe and say whatsoever I could for my selfe which he freely without any interruption gave me leave to do and Sir I hope you will not be more unjust unto me then the Pagan Roman Judges were to Paul or the Caviliers to my selfe at Oxford in denying me my priviledge to speake and plead for my selfe Whereupon Mr. Justice Bacon replied and said Sir it is a favour that you are permitted to plead by councell Sir said I by your favour I doe not judge it so and besides I desire Mr. Iustice Bacon with all respect unto you and desire to let you know I do not com here to beg boones or courtisies at your hands but I come here to claime my right do with confidence tell you Sir that it is not only my undoubted naturall right by the light and Law of nature yea and by the ancient common Law of England to plead my owne cause my selfe if I please but it is also the naturall and undoubted right of every individuall Englishmen yea and of every man upon the face of the Earth in what Countrey soever and therefore Sir I demand from you liberty to specke frealy for my selfe not only by the Law of nature but also by the ancient Common law of England freely telling you that I Judge my cause of that consequence to my selfe and all the Commons of England that I will trust never a Lawyer in the Kingdome to plead for me and therefore againe demand to as my right leave to plead my selfe the which if you will not grant me I have done and haue no more to say to you whereupon the Iudges commanded the lawyers to make me roome and called me closse to the Barr where I did my respect unto them and they caused the returne to be read which consisted of my commitment from the Lords the 11 of Iuly 1646 my commitment from the Commons 19 Ian 1647 and a late order of the commons to command the Lievetenant of the Tower upon removeall of his prisoners not to remove the 4 Aldermen nor Sir Iohn Maynard nor my selfe which returne in the conclusion hereof I shall insert and then as I conceive because some of the returne was latten Iudge Bacon askt me if I understood it and I said yes for I had cause enough given me so to doe whereupon he begun to tell me I might easily perceive I was Committed by the Lords upon a Centence and begun to amplifie their power as a superior court whose actions were not to be questioned or controled by the Judges of the Kings Bench because they were inferior to them Unto which I replied Sir I desire the returne may be ordered to be entered upon record and this I pressed diverse times and desired that if the Lieutenant had any thing to add to the returne he might now speak or else forthwith it might be made a record and he thereby debarred of making additions to it which was accordingly done and then I pressed to be hard and said Mr. Justice Bacon I desire to keep you close to my businesse which is thus I am in prison and having no crime laid unto my charge by those that do commit me as clearly appears unto your Honor by the returne for generalls you know better then I doe are no charge nor crimes in Law and therefore according to the law I crave leave to make my exceptions against the return when I have done I shall willingly submit my discourse my cause and my person to your Judgements and consciences but I pray heare what I can say for my selfe and my liberty or if you will not command me silence I will obey you And then Mr. Justice Roll spoke like wise to the Lords power and would also have staved me of from going on but I prest still to be heard what I could say against the returne and he prest me to keepe close unto it and not be extravigant in medling with impertinences but I told him I did not know what he would judge impertinences therefore prest hard to be heard telling him if I spoke that which by Law I could not Justifie they might the easier tript up my heales but I assured him I was an honorer of Magistracy as being the chiefe meanes God had appointed to keepe the world in order and therefore I was resolved to speak with all honour respect both unto their office and persons so I had leave granted to go on and having my plea in a readinesse writ I put on my spectacles held it before me as the Lawyers do there Briefes and begun and said as was contained in my paper which I shall give you as I had pend it before I came to the barre though I confes I had many bickering interruptions by both the Iudges which in the best manner my memory will serve me I shall note in the Magent as I goe on with my discourse which thus followeth Mr. Justice Bacon I doe ingeniously confesse that I judge Universall safety to be above all Law and that it is the ouldest Law of any in the Kingdom and therefore I shall not dispute in the least the Parliaments irregular actions that they were necessitated too for common preservation in the height of the Warres but the Warres being ended as they themselves declare they are in their late Declaration against the Scotch Commissioners and thereby the affaires of the Kingdome reduced into a more peaceable and hopefull condition then heretofore wherefore I may now groundedly from the full streame of all their Declarations and promises expect challenge and looke for the absolute benefit of the Law and the common justice of England in the ordinary courts of Justice thereof which they have declared and promised they will not now enterrupt See their Declaration of the 17. of April 1646. 2 Part. Book Declam pag. 879 and their Ordinance of none addresses to the King in Ianuary last where they promise the people though they lay the King aside yet they will notwithstanding governe them by the Law and not to interrupt the ordinary course of Justice in the ordinary courts thereof And therefore Mr. Justice Bacon I am not a little glad that I stand before you at this Barre of Justice which is bounded by the Law where I never was before for seeing that the great Judge of all the world Stiles himselfe to be a God of judgement Esa 30.18 and further saith of himselfe That I the Lord love judgement and hate robbery for burnt offerings Esai 61.8 and therefore layes his command upon Judges those gods upon earth Psal 82.6 That they shall defend the Poore and Fatherlesse and doe justice to the afflicted and needy and deliver them out
of the hands of those that are to strong and mighty for thim and that they shall judge righteously betwixt a man and his brother his neighbour in justifying of the righteous and condemning of the wicked without wresting judgement or respecting persons but that with judgement they shall beare the small as well as the great and above all that the Judges shall not be afraid of the face of man for saith he ye Judge not for man but for the Lord who is with yon in judgement and therefore saith he take heed and d ee it for there is no iniquitie with the Lord nor respect of persons nor taking (a) Exod. 18 21. 23.2.6.8 Deut. 1.16.17 ch 16.19 25.1 2 Chro. 19.6.7 of gifts And as God is thus delighted in doing Justice and Judgement so on the contrary side he hath declared he asmuch abhorres those that turne Judgement into wormwoode and ganle and leaves of righteousnesse in the earth and commits mighty sinnes in afflicting the just in taking of bribes and turning aside the poore in the gate from their right (b) Esa 1.23.24 Jer. 5.28.29 22.16.17.18 Amos 5.12 6 12 14. Mic. 3.9.11 Zek. 8.16 17. And that Sir which adds unto my gladnesse is this that now I stand not before Arbitrary Judges which judge themselves bounded by no law or rules either of God or man but are left loose unto the reines of their depraved corrupt lusts and wills by vertue of which I have not a little beene tossed and tumbled from Gacle to Gaole and not for some few houres dayes weekes or Moneths but for some yeares without having any legall crime laid to my charge or ever been brought out unto any Legall triall But Mr. Bacon here I stand before you who are sworne and proper Judges of the Law Yee of the Law of England with that learned Lawyer Sir Edward Coke often stiles a Law of righteousnesse and mercy especially to Prisoners in my case (c) 1 Part. insti Sect. 438. fo 260. 2 Part. instit so 42 43.46.55.56.115.186.189 190.526 4. Part. instit so 168. who have been almost this two yeres imprisoned First By the House of Lords and then Secondly By the House of Commons for nothing as clearely appeares unto you by my Warrants of Commitments which onely charge me with generals and generalls are no charge nor crimes in (d) 2 Part instit so 52.53.315.318.591.615.616 and 1 Hart Book declar pag. 38. 77. 201. 845. and the Votes upon the impeachment of the 11. Members and the Petition of right 3 C. R. and the Act that abolished the Star-Chamber 17. C. R. Printed in my Booke called The Peoples Prerogative Pag. 22. 23. 24. 25. 26. Law but if they were as they are not Yet those viz. the Lords and Commons that made them were never betrusted by the Law to be the executors of the (e) See the 14. and 29. Chapters of Magna Charta and the exposition upon them 2 Part. instit fol. 29.46 c. and the Petition of Right and the Act that abolished the Star-Chamber and Rot. Parl. 5. R. 2. num 45. Rot. Parl. 1. H. 4 Mumb. 14. numb 79. 5. H. 4. chap. 6. 11. H. 6. chap. 11. 23. H. 6. chap. 11. 15. 4. H. 8. chap. 8. 1 2 P. M. chap. 10. 4 Part. instit fol. 25. and 1. Part Booke Decl. pag. 48. 278. Law And therefore Mr. Justice Bacon with all honourable and due respects upon your Office and persons I desire with asmuch brevity as I can to make my defence against both the Warrants of my commitments and I shall crave leave to observe this Method First although I grant that the House of Commons and the House of Lords have by the Law and Custome of England their proportionable power and interest in the making and repealing of Lawes yet I do averre that neither devided nor conjoyned they are not in the least betrusted to execute the Law but your honours and the rest of the sworne Judges Justices of the Peace and the Constables c. are by Law betrusted to be the sole and only executors of it And that no Commoner of England is to be restrained of his liberty by Petition or suggestion to the King or to his Councell unlesse it be by indictement (f) 5. Ed. 3. ch 9. 25. E. 3. ch 4. 37. Ed. 3 ch 18. 38. E. 3. ch 9. 42. Ed. 3. ch 3. 11. R. 2. ch 6. 2. part instit fo 46. and Petition of Right and the Act that abolished the Starre-Chamber or presentment of good and lawfull men where such deedes be done and no Commoner of England is to be past upon to lose either life limbe liberty or estate but by legall Tryall by a Grand Iury and Petty Iury of his peers or equalls which Sir Edward Cooke calles the ancient and undoubted Birth-right of an Englishman 4 part insti fol. 41. before a sworne Iudge of the Law in the ordinary Courts of Justice the proofes to be in cases of Treason c. by two sufficient witnesses at least plaine and upon their Oathes (g) See the 14. and 29. Chapter of Magna Charta and 2. part instit fo 29.46.50 and the Petition of Right and the Act that abolished the Starre-Chamber and the case of the Corporation of Cambridge Rot. Parl. 5. R. 2. Num. 45. and the notable Plea of A. B. a Citizen of London pag. 24. and 5. part insti fo 25. and 1. Ed. 6. ch 12. and 5. and 6. E. 6. ch 11. and 13. Eliz. ch 1. And Mr. Iustice Bacon by Law a Lord of the Parliament is not so much as to be of the Jury of a Commoner as learned Sir Edward Cooke declared 1 part insti sect 234. fo 156. and if by Law he cannot be of his Jury much losse can he be his absolute Iury and Iudge both And also by the Act that abolisheth the Starre Chamber this present Parliament 17. Car. Rex it is firmly and strongly inacted that all Lawes Orders Ordinances Iudgements and Decrees made in deminution of the 29. Cha. of Magna Charta and the Lawes before recited are and shall be null and void in Law and holden for errour and therefore at present to conclude this point about jurisdiction I shall winde it up with Sir Edward Cookes words in his proeme to his 4. part institutes viz. That the bounds of all Courts are necessary to be known for as the Body of a man is best ordered when every particular Member exerciseth its proper duty so the body of the Common-wealth is best governed when every severall Court of justice exempteth his proper jurisdiction But saith he if the eye whose duty is to see the hand to worke the feete to go shall usurpe and increach one upon anothers workes as for example the hands or feet the office of the eye to see and the like
these should assuredly produce disorder and darknesse and bring the whole body out of order and in the end to distruction so in the commonwealth Justice being the main preserver thereof if one Court should usurp or incroach upon another it would introduce incertainty subvert Iustice and bring all things in the end to confusion But Sir I shall at present in this place spare the full opening of my plea in this particular and reserve it to the place most fit for it And therefore I shall infist upon the 2 part of my plea which is that the matter and forme of my Warants of commitments are illegall the legality of which ought as Sir Edward Coke declares in his 2. part instit which is published by the present House of Commons for good law to the Kingdom as appeares fol. ult who therein fol. 52.590.591 expressely saith 5. things are essentiall in Law to the making of a commitment lawfull viz. 1. That is be by dur Processe or proceeding in Law 2. That he or they that do commit have lawfull authority 3. That this warrant or mittimus be lawfull and that must be in writing under his hand and Seale 4. The cause must be contained in the Warant or Mittimus and that not in generall termes but in particular as for treason then for what particular Treason and of for fellony then for what particular felony and if for misdemeanours then for what particular misdemeanour 5. The Mittimus containing a lawfull cause must also have a lawfull conclusion viz. and him safely to keep untill he be delivered by due course of Law and not untill the party committing please or doth further order or for 7. yeares Now Mr. Justice Bacon all and every of these particulars I doe averre is wanting in both my Commitments For first there was no due Processe of Law against me no Bill filed or Indictment preferred nor no legall complaint exhibited against me neither did I see any legall prosecutor before I was originally committed no nor not to this present houre although I have been almost two yeares in Prison First in Newgate and then secondly in the Tower devorsed from my wife debarred of my friends deprived of pen Inck and paper But I desire to cease this at present and go on to the main things And therefore 2. I aver that by the known Law of this Land neither of the Speakers of either House nor neither House themselves have the least shaddow or colour by any declared and known Law of England to commit the meanest Commoner of England that is not one of there members to prison either for treason the highest crime for that is expresly to be tryed by the common Law by people of the neighbourhood of the same condition as appeares by the 25 Edward 3 chap. 2. and 1. 2. Phillip Mary Chap. 10. yea and it lyes not in the whole Parliaments power to punish any man for any crimes which they shall call treasons but what is cleerly declared and fully expressed to be treason by the statute the 25 Edward 3 Chap. a as appeares by 1 H. 4 Chap 10. and the 1 M. Chap 1. Or for breach of the peace although it be in affronting beating or wounding of any Parliament man for that is expresly ta be tried in the Kings Bench. 5 H 4 Chap. 6. and 11 H. 6 Chap. 11 Yee although a sherife by law is to pay 100 l. to the King and to suffer a Years Imprisonment c. without Baile or mainprise for every false returne of a Knight of the Shire that he makes yet by Law neither Houses are to be Judges in this very businesse so immediately concerning the House of Commons but it shall be examined and tryed before the Justices of Assises in the Sessions of Assise 8. H. 6. Chap. 7. 23. H. 6. Chap. 15. yea the Parl. or the House of Commons are not to punish those that will not pay them their wages for their service done in the Parl but the refusers are to be punished by the legall administrators of the Law in the ordinarte Courts of Iustice 23. H. 6 Chap. 11. Now Sir if the Parliament or the two Houses either conjoyned or divided cannot exercise executive Justice in these things so nighly concerning themselves much less in things more remote as my case is who if I were guilty of the thing layd unto my Charge yet they are only and alone tryable and punishable at the Common Law and not in an arbitrary uncertain way in either or both Houses the rules of which certainly no man in heaven or earth knoweth and saith that worthiest of English Lawyers Sir Edward Cook in the Proem to the third part of his Institutes It is a miserable servitude or slavery where the Law is uncertain or unknown And I know you know it is a received Maxim in Law that the Parliament is not to medle with judging or punishing that which appertains and belongs to the Common Law but my pretended crimes have their punishments appointed by the Common Law and are there only to be tryed and punished and therefore in the least belongs not unto the Parliaments Cognisance or Jurisdiction Nay the Parliament men themselves for Treason Felony and breach of the Peace are not priviledged in the least from tryals at Common Law as appears by the fourth part Institutes fol. 25. and the Lords and Commons confess the same in their Declarations 1. part pag. 48. 278. The Common Law of England which is right reason or as Sir Edward Cook stiles it the absolute perfection of reason 2 part Instit fol. 179. hateth all partiality or faction in tryals which would unavoydably be if the Law-makers should in any case be the Law-executioners and besides the legal benefit of final appeals to the high Court of Parliament which I judg in Law to be the whole and intire Parliament and not a single House would be hereby totally destroyed for if they should be impowered by Law to be Executers of it and should as it is possible they may do me wrong injustice I am thereby by power destroyd with out remedy which the Law abhors and therefore the wisdom and reason of the Law is such to betrust Judges that rationally are liable to an account in full Parliament and them only to be sole Executors and Dispensers of the Law betwixt party and party and not to betrust the whole Parliament or any part of it with the executing of the Laws but only to betrust them as their fittest work with a power to repeal those Laws that are amiss and to establish and make better in their places But the Laws while they remain Laws and unrepealed are as binding by Law to themselves as the meanest men in England and they have no priviledg of exemption from them saving in freedom of speech within their respective Houses for which they have an act of Parliament to indempnifie them as appears by the 4. H. 8.
told them I was willing to give the Lords as much Jurisdiction without dispute as they desired to Judg condemn and destroy one another so they would not meddle with me nor my fellow Commoners and I was confident if the Lords distinctly as a single House had any Jurisdiction at all in Law it was but over themselves and as much of which as they please to take I am willing without dispute to grant them the second place That the House of Commons have no judgment or Jurisdiction by Law clearly appears by their own confession in the roul of Parlialiament in the 1. H. 4. Membr 14. Num. 79. which this present April I had under Mr. William Riley the Record-Keepers hand which at the Bar I am ready to produce and which thus in English verbatim followeth The third day of November the Commons made their Protestation in manner as they made it at the beginning of the Parliament and over and above declare to the King That forasmuch as the Judgment of Parliament belongs only to the King and to the Lords and not to the Commons unless it please the King of his grace especially shewed them that the said Iudgment was for their ease and no record shall be made in Parliament against the said Commons that they are or shall be parties to any judgments given or to be given hereafter in Parliament To which was answered by the Archbishop of Canterbury by the Kings command that the said Commons shall be Petitioners and Demanders and that the King and the Lords at all times have had and shall have by right the Iudgment in Parliament in manner as the said Commons have shewed unless it be in Statute affairs or in grants and subsidies or in such things and affairs for common profit of the Kings Realms the King will have their especial advice and assent and that this Order be kept in all times to come And so much at present for the 2d essential of a warrant And now I come to give a touch and but a touch only upon the third ingredient to make a mittimus lawful and that is that it be under hand and seal expressing the office and place of him which makes it unless the party be committed in the sight of the Judg sitting in open Court but there is no seal to mine and therefore it is illegal for I was not in the view of my pretended Judges when they committed me But Mr. Justice Bacon I come to the fourth thing upon which at present as one of the principal essentials I shall stifflly stand which is That the warrants of my Commitments both from Lords and Commons now returned before you are illegal there being nothing but generals laid unto my charge by them which is no charge nor crime in Law and therefore both my warrants wanting a legal and a particular cause in them there is no colour in Law to keep my body in prison by vertue of them Now to prove that Generals are no crimes nor charges in Law though the dayly and continual practises of all the Courts of Iustice in England prove it yet for illustration sake I shall crave leave to alledg some legal Authorities And in the First place I shall begin with the Judgement of Sir Edward Cooke upon the Statute of breaking of prisons made 1 Ed. 2. who in his 2. part institutes fo 591. expresly saith seeing the weight of this businesse touching this point to make an escape either in the party or in the Gealours Fellony dependeth upon the lawfulnesse of the Mittimus it will be necessary to say somwhat hereof First it must be in writing in the name and under the seale of him that makes the same expressing his Office place and authority by force whereof he makes the Mittimus and it is to be directed to the Goaler or Keeper of the Goale or Prison Secondly it must containe the cause as it expresly appeareth by this Act * 25. Ed. 3. Coran 134. and 32. Ed. 3. Coram 248. and 9. Ed. 4. fol. 52. unlesse the cause for which he was taken c. but not so certainly as an indictment ought and yet with such convenient certainty as it may appeare judicially that the offence requires such a judgement as for High-Treason to wit AGAINST THE PERSON OF OVR LORD THE KING or for the counterfetting of the money of our Lord the King or for petty Treason namely for the death of such a one being his Master or for Fellony to wit for the death of such a one c. or for blurgary or robbery c. or for Fellony for stealing of a horse c. or the like so as it may in such a generality appeare judicially that the offence required such a judgement and he there further goes on gives divers arguments reasons scites abundance of law authorities to prove that a particular cause ought by Law to be expressed in every Mittimus or Warrant of Commitment My second proofe to prove generalls are no charge in Law is the deliberate and resolved opinion of all the Judges of England in the 3 yeare of King Iames which was a time of full peace wherein the law had its free currant without the threates of Marciall or the checks of Prerogative arbitrary power and therefore the Judgement is of more weight who in their answer to the 22. object on or article of Archbishop Bancroft and to the whole Clergy of England hath those very words we do not neither will we in any wise impugne the Ecclesiasticall authority in any thing that appertaineth unto it but if any by the Ecclesiasticall authority commit any man to prison upon complaint unto us that he is imprisoned without just cause we are to send to have the body and to be certified the cause and if they will not certifie unto us the particular cause but generally without expressing any particular cause whereby it may appeare unto as to be matter of ecclesiasticall cognizance and his imprisonment be just then we do and ought to deliver him and this say the Judges is the Clergies â—ault and not ours and although some of us have dealt with them to make some such particular Certificate to us whereby we may be able to judge upon it as by Law they ought to do yet they will by no meanes do it and therefore their errour is the cause of the thing they complaine of and no fault in us for if we see not a just cause of the parties imprisonment by them then we ought and are bound by Oath to deliver him and sutable to this is their answer to the Clergies 21. Article which Articles and answers are recorded in 2. part instit fo 614.615.616 My 3. proofe to prove that Generalls are no crimes in Law is out of the 4. part instit fo 39. where the Lord Cooke expresly saith That a man by law cannot be attainted of High-Treason unlesse the offence be in Law high treason for
Prison for nothing as clearely appeares by the whole return which only consists in generals generals are no crimâ— in Law therefore Sir J beseech you tell me whether the Law of England be so imperfect that it hath provided no remedy to preserve a man from destruction by lust will and pleasure but if it have not then Sir I must ingenuously tell you so much am I an Englishman and free from the principals of slavery that though I have suffered and undergone with some kind of patience almost two yeares imprisonment without any cause but onely by the power of lust will and pleasure that I professe before you both and this whole auditory that were I this day put to my choise I had rather chuse to combate one by one with 20. of the stoutest men that steps upon English ground though I were sure to bee cut in a thousand pieces thereby then willingly to be Captived in Prison two yeares longer by the power of Lust will and pleasure without the hopes of any remedy but from those that tyrannize over mee FOR TO BE A SLAVE IS BELOWE ME or any man that is a man but if this be good Law which you declare unto me then perfect slaves are we indeed Again Sir is for that Law of Parliament you talk of I had thought England had had but one Law to be governd by hat that had bin a visible and a declared Law and not a Law in mens breasts not to be knowne till they please to declare it and then when they do it shall every day crosse it self and ebbe and slow according to successe Sir this is no Law at all and therefore here can bee no transgression against it but if you mean a Law in being but yet kept so close in holes and corners that none can come to see it or read it but only the executors of it this is as bad as no Law at all and as good living in Turky as under such an unknown Law But Sir to lay aside all these dubious disputes about Jurisdiction and Parliament Laws and Laws in the ordinary Courts of Justice and suppose the Lords have a power of Jurisdiction in the present case to sentence me if really I had committed a crime and suppose but no more that you are an inferiour Court and cannot legally reverse or take cognizance of their Judgments yet I desire to keep you close to my return which shew clearly that I am imprisoned for nothing and thereby rondred an innocent and just man and therefore I demand positively your judgments in that whether it be so or no And secondly whether the Law hath not provided a remedy for me and for my deliverance from under any power in England in case I be imprisoned by them for nothing unto which as I remember both the Judges spoke to it in the foregoing manner and if I wrong them not which I would be very leath to do in the conclusion of their spaeches both of them ingenuonsly confessed that by my return it did appear I was imprisoned without any crime in law laid unto my charge but yet being committed by a superiour Court the Lords and that upon a sentence they could not in Law relieve me Whereupon I earnestly pressed to be heard but a few words more which was granted and I very soberly said Mr. Justice Bacon I have been forth in service to fight for the Laws and Liberties of England against those men that the Parliament made me and divers others believe would have destroyed them and I was I confesse very zealous to presse others to do as I did But Sir had it then been told me by those that set me at work or had I in my own breast believed iâ— that the issus of all our fightings should have beene contured in making the people of the Kingdom slaves or that all our fighting should have contributed to nothing so much as to inable a company of men sitting here at Westminster called LORDS and COMMONS arbytrarily by their lusts wils and pleasures to have raigned and ruled over us I would have been so far from killing of Cavaseers that I would rather with my own hand have beene my own executioner then to have murdered men to satisfie the lusts of others But seeing it is as it is and that I have been so grosly mistaken in these mens promises oathes Declarations and ingagements which now they judge as nothing but have throwns them all behind their backes I shall recant my error in beleeving of them and perswading others to doe iâ— and shall desire to be setled in that which is truth which is now to beleeve them noemore and instead of being zelous to provoke the People to stand up for there Lawes at their commands I shall be very sorry for that error or mistake or I clearely see thore is none in England of any more strength then a piece of soft wax nor the People by there great Lordly promises were never intended other then to be Vassels and slave * Yea the most miserablist of slaves bâ—ing first in sabjection to a Statute Law and if they transgresse that then the Judges of the Law are ready to distroy both life and Estate therefore secondly to a Law of Ordinances and if they transgesse that which is sufficiently contradicttory in it selfe then they shall by one Arbitrary Committee or other hazard the lossâ— of all they have with out any witnesses sworne against them or any Jury pinnelld or it may be any complaint in writting preferrd against them but they shall be distroyed by the will and descration of the Committes for such proceedings contrary to the fundamentall Law of the Land both Dudley and Eâ—son Privie Couâ—cellers were hanged though they had an Act of Parliament to autherize their doings as appears 2. part insti fo 51.3 part insti fo 2â—8 and 4. part insti fo 41.196.197.198 but yet if a man be never so observiant of both the Law and Parliament Ordinances yet thirdly Parliament Lords and Commons have a Law paramount above them both and which as pleasure shall null them both and neither of them shall be any protection unto you and that it their law of will lust and pleasure more exercised put in use by them then both the former so that of necessiâ—ie slaves in the highest are all Englishmen now being under 3. distinct Lawes for their destruction but can injoy the benefit of never a one for their preservation and therefore for the Parliament to make Judges of the Law to executed is but a mooking and cheating of the people for they have left them none to execute but have superseded it every line with the Law of thir lusts wills and pleasures for all their lying promises in all their Declarations to the contrary therefore all ye true hatted Englishmen awake awake looke wel about before the midnight of slavery sease upon you and therefore Sir I shall now