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
man is to be tryed per legale judicium parium suorum by the lawfull judgment of his Peers which Statute gives the Lords of Parliament a jurisdiction over their Peers which cannot be taken from them and as the Lords have a jurisdiction over their Peers so have the Commons over their Peers viz. all the Commons of England for as Sir Edw Cook 2. part of his Institutes pag. 29. in his Coment upon Magna Charta c. 14. observes that the generall division of persons by the Law of England is either into the Nobility of the Peerage or Lords house or the Commons of the Realm for as every of the Nobles is a Peer to each other though they have severall Names of Dignity as Dukes Marquisses Earles Viscounts and Barons so of the Commons of the Realme each Commoner is a Peer or Equall to another though they be of severall Degrees as Knights Esquites Citizens Gentlemen Yeomen and Rurgesses and this distinction we find likewise in Bracton c. 2. sol 36. and both these Jurisdictions do belong to both Houses naturali equitate by a naturall right or equity as hereafter more plainly will be demonstrated and according to this Jurisdiction have the Commons themselves given judgment upon a Commoner as in the case of Thomas Longe cited by Sir Edward Cooke vbi supra p. 23. and recorded in the Journall Book of the House of Commons 8. Eliz. Onslow Speaker f. 19. and in the case of Arthur Hall 23 Eliz. f. 14. Popham Attorney General Speaker and divers others Now that the Lords and Commons have a joynt Jurisdiction or power of Judicature over both Lords and Commons is manifest by the Judgments given against the Lord Audley at the Parliament held at Yorke Anno 12. 22 Consideratum est per Praelatos Comites Barones communitatem Angliae and in 15. E. 2. the Judgment given against the Spencers both Earles Hugh the Father and Hugh the Son who were adjudged to exile by the Lords and Commons and Sir John Alees adjudged by the Lords and Commons as appeares 42. E. 3. Nu. 20. Rot Parl. and of late time in the cases of Sir Giles Mompesson the Lord Viscount of St. Alban and the Earl of Middlesex in 18. 21. Iacob Regis In all which Judgements the Kings consent was concurrent which gave those Judgments life and efficacy Having thus distinguished the severall and joynt Jurisdiction of both Houses it will bee necessary to shew whence these have sprung and how they are grown It appears by the old Treatise de modo tenendi Parliamentum which was made before the Conquest and presented to the Conquerour who held a Parliament in that forme as appeares by the book of 21. E. 3. f. 60. That both Houses of Parliament sate together and were but in effect one House and so continued long after the Conquest till 5. and 6. E. 3. as appears by the Parliament Rolls of 5. E. 3. Nu. 3. and 6. E. 3. and by the 4. part of Sir Edward Cookes Instit p. 2. and as may be gathered by the Preamble to the Statute of Marlebridge made 52. H. 3. Westm the first 3. E. 1. Westm 2. 13 E. 1 the Statute of Yorke made 12. E. 2. and others which mention that the Prelates Earles Barons and Commonalty of the Realm were called together whereby we may infer that they sate as one House to consult of the weighty affaires of this Kingdom from whence we collect that the Lords had whilest they sate as one House no particular jurisdiction nor the Commons any to themselves alone but their jurisdiction was joynt being mixt of both their powers and communicative to all alike of both Kingdoms and this appeares cleerly by the case of the Lord Audley 12. E. 2. and the cause of the Spencers 15. E. 2. afore cited and by the case of Nicholas Segrave adjudged in Parliament as appears Placit Parliament 33. E. 1. Rot. 33. per Praelatos Comites Barones alios de consilio by the Prelates Earles Barons and others of the Councell that is the Parliament and more plainly by that spoken by Sir Edward Cook 2 part of his Instit p. 50. And though of antient time saith he the Lords and Peers of the Realm used in Parliament to give judgment in case of Treason and Fellony against those that were no Lords of Parliament Yet at the suit of the Lords it was enacted that albeit the Lords and Peers of the Realm as Judges of the Parliament in the presence of the King had taken upon them to give judgment in case of Treason and Fellony of such as were not Peers of the Realm that hereafter no Peers shall be driven to give judgment on any others then on their Peers according to the Law And he cites Rot. Parl. 4. E. 3. Nu. 6. to maintain this assertion of his But to conclude more strongly we find it recorded in 4. E. 3. Rot. 2. and inrolled in Chancery in the cause of Sir Simon de Berisford who was adjudged as an accessary to Roger Mortimer of the murder of King Ed 2. in these very words viz. And it is assented and agreed by our Lord the King and all the Grandees in full Parliament that albeit the said Peers as Judges of Parliament took upon them in the presence of our Lord the King to make and give the said judgment by the assent of the King upon some of them which were not their Peers and that by reason of the murder of their liege Lord and the destruction of him which was so neare of the Blood-Royall and Son of a King that therefore the said Peeres which now are or the Peeres which shall be for the time to come be not bound or charged to give judgment upon others then upon their Peers nor shall do it But let the Peers of the land have power but of that forever they be discharged and acquitted and that the aforesaid judgment now given be not drawn into example or consequence for the time to come by which the said Peeres may be charged hereafter to judge others then their Peers against the Law of the Land if any such case happen which God defend All which afore-mentioned presidents and judgments were made and given before the separation of the two Houses whilest they sate together Out of which we collect and gather that the Lords had no particular jurisdiction to themselves or of themselves before the division separation of the Pouses and that it was against the Law of the Land for the Peers before this separation to judge a Commoner in any case whatsoever Nay that their hands are bound by their assent never to judge any in future which Sir Ed Cork saith was enacted So that joyning the one consideration with the other it is most cleer that the Peers at this day cannot judge a Commoner no not if the King joyn with them especially in case of life or free-hold for in the book of 4 H. 7.
long upon this particular it being so plain and cleare in it selfe Onely wee will remember that which that learned Father in the Law Sir Edward Cook 2. part Instit pag 46. saith upon this clause viz. Hereby is intended that Lands Tenements Goods and Chattels she ll not bee seized contrary to this great Charter and the Law of the Land Nor any man shall bee disseised of his Lands or Tenements or dispossessed of his goods or chattels contrary to to the law of the land Wee may safely adde That neither King nor State ought to seise sequester plunder or take away any mans goods chattels trade lawfull calling or office before the party be lawfully indicted or convicted of an offence by due processe of Law tryall of Jury and lawfull Judgement by the law of the land Neither ought any man to be disseised or put out of his Lands Tenements or Freehold by suggestion or petition to the King or his Councell unlesse it be by presentment or indictment of his good and lawful people of the neighbourhood That thisis as clear as the Sun at noon-day Read these three Statutes of 5. E. 3. cap. 9. 25. E. 3. c. 4. 28. E. 3. c. 3. And the books of 43. Ass Pl. 21. These referre to sequestring seising or desseising rather of Lands Tenements and Free-hold of the free subjects of England For the defence of our goods not onely this great Charter but also the Book of 43. E. 3. fo 24. 32. 44. Ass Pl. 14. 26. Ass Pl. 32. 7. H. 4. fol. 47. Cook 1. Reports fol. 171. 8. Reports fol. 125. Case of London Where the case was K. H. 6. granted to the Corporation of Dyers within London power to search c. And if they found any cloath died with Logwood that the cloath should bee forfeit And it was adjudged in Trin. 41. Eliz. in this case That this Charter for seising of such cloath was against the Law of the land and this great Charter because no man ought to have his goods taken away from him before conviction Nay if he were accused or indicted of Felony or Treason yet his goods ought not to bee seised upon or taken away from him before he be attainted or convicted according to the Law of England upon pain to forfeit the double value as appeares by the Statute of 1. R. 3. And although Treason is not mentioned within that Statute but Felony onely yet Sir Edward Cook Instit part 3. fol. 228. saith that Regularly the goods of any Delinquent cannot be taken and seised before the same be forfeited Neither is this a new opinion but the law ever was and still is so as Bracton l. 3. fol. 136. witnesseth in these words Qui pro crimine vel felonia magna sicut pro morte hominis captus fuerit imprisonatus vel sub custodia detentus non debet spoliari bonis suis nec de terris suis disseisiri sed debet inde sustentari donec de crimine sibi imposito se defenderit vel convictus fuerit quia ante convictionem nihil forisfacit Et si quis contra hoc secerit fiat Vic. tale brev Rex Vic. salute Scias quod provisum est in Curia nostra coram nobis quod nullus homo captus pro morte hominis vel alia felonia pro qua debeat imprisonari disseiseatur de terris tenementis vel catallis suis quousque convictus fuerit de felonia de qua indictus est c. In English thus Where any man for a crime or great felony as for murder shall be taken and imprisoned or detained under custody he ought not to be spoyled of his goods nor disseised of his lands but ought to be maintained of the same untill he shall acquit himselfe of the crime charged upon him or shall be convicted thereof because Before conviction he shall forfeit nothing And if any man shall doe contrary to this course let there be made out to the Sheriffe such a Writ following THE KING to the Sheriffe greeting Know thou that it is provided in our Court before us that no man taken for the death of a man or other felony for which he ought to bee imprisoned ought to be disseised of his Lands Tenements or Chattels until he shal be convicted of the Felony whereof hee is indicted c. In which words Qui pro crimine Sir Edw. Cook is of opinion that Treason is included as also Quia ante convictionem And that the Act of Magna Charta c. 29. extends to treason as well as to Felony or other Delinquency The Writ aforementioned you may find in the Register among the Originall Writs By all which Statutes and Book-Cases and a thousand more testimonies to be produced it is more then cleare That neither Sequestration Seisure nor taking or spoiling a man of his lands or goods ought to be till hee bee lawfully indicted and convicted by triall of his equals according to the law of the land But we have done with this particular wee come now to the next which is the third and that is No man ought to bee out-lawed by the Law of the Land This word Outlary signifieth The putting of a man out of the protection of the Law either in Criminall or Civill causes and it is of two kindes Legall and Illegall A legall outlary is when the party is duly indicted or summoned to appear and makes default at the return of the Writ of Summons and then by due processe of Law is pronounced an Outlaw in the County-Court by the Coroners of the County where he doth inhabit Which proceeding is according to the law of the land because it is done by his Equals And if he be duly out-lawed of Treason Murder or Felony it is a conviction in law till he appear plead to the indictment and pray his Writ of error to reverse the outlary which ought to be allowed him upon his appearance Illegall Outlaries in Civil Causes are where men are not duly summoned and a false Returne made by the Sheriffe whereby processe of Law is unduly awarded against him till he be outlawed In both which cases he forfeits his goods and chattels and the profits of his lands till the outlary bee reversed There are other sorts of illegall outlaries in effect which are putting men out of protection of the law which are unlawfull prohibitions and injunctions whereby men are enjoyned and stayed from prosecuting their rights suits or actions in any of his Majesties Courts of Justice Or when men under any pretence of incapacity by delinquency are not permitted to sue or have right denied them by any Judges or Justices these are in effect outlaries For every Outlary carries with it an incapacity to sue for a mans right or for wrong done in any personal or mixt action As Littleton in his chapter of Villenage affirmes and as you may find 2. 3 Ph. Mar. Dier 114. 115. Now it is all one to be put out of
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
f. 10. Be tit Parl. 42. We find that in Parliament the King would that I. S. shouldbe attainted and lose his Land and the Lords did agree and nothing was spoken of the Commons and this by all the Judges was held no good attainder or judgment and therefore he was restored to his Lands for there can be no attainder by Parliament but by Act of Parliament that is by judgment of both Houses and consent of the King for the King as Sir Edward Cook saith is of the Parliament caput principium finis the head the beginning and the end But some will say that the Lords have a Judicature a-part from the Commons which they have long used It is true they have and it is only in some particular cases and their power is given them by Act of Parliament by the stature of 14. E. 3. c. 5. in case of delay of Justice difficulty of judgment or cases of errours and is confirmed unto them by the stature of 25. El. c. 8. and 31. El. c. 1. But we cannot find by any of our bookes in Law and wee are confident no man can shew us that the Lords by themselves apart or without the assistance and without judgment of the Commons did hold plea in any of those cases before that statute of 14. E. 3. For the first cases that we find of any proceedings in those cases before the Lords were in 16. E. 3. Fitzh tit briefe 561. and in 24. E. 3. f. 46. 22. E. 3. Fitz. error 8. and other bookes out of which good notes may be drawn to fortifie our assertions withall if need in so plain a case did require By all which cases and presidents we may assuredly conclude That the Lords in their House have no jurisdiction over the Commons in any other cases then delay of Justice difficulty of Judgment or matter of Errour as aforesaid And this is agreeable to the statute of 25. E. 3. c. 4. Where it is accorded assented and established that from hence-forth 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 neighborhood or by processe made by Writ originall at the common-law and to the other statutes afore-mentioned and bindes the House of Peers as well as any other Court of Judicature at Westminster as they are of the Kings Councell and sit by vertue of the Kings writ and Commission as they have often by their own Declarations manifested If it be objected that their Lordships being a Court of Judicature are only to proceed secundum legem consuetudinem Parliamenti according to the Law and Custome of the Parliament We answer that we grant that it must be secundum legem according to law which is according to the Great Charter and the laws before cited and as touching the custome of Parliament we say that the Lords house cannot have any pretence by custome to judge a Commoner of England since that it appeares by the presidents afore-mentioned namely Sir Simon de Berisfords case which was 4. E. 3. and by that of the same date cited out of Sir Edward Cooke that before the division of the Houses it was enacted and assented that the Peers for the time to come should not judge a Commoner as being against Law as aforesaid And therefore that Custome being against Law and prohibited by Act of Parliament must needs be void in Law For no Custome that is against Law or an Act of Parliament is valid in Law Neither can they have any good Custom by usage of such power since the division of th Houses though they have actually judged Commoners it being within time of memory since the Houses were divided that is to say since the time of King Richard the first which is the limitation of prescriptions and since which time no good custome can bee grounded the contrary appearing by matter of Record as aforesaid And albeit they have judged Commoners it makes not for them for a facto ad jus non valer argumentum because they have done it in fact therefore they may now do it of right followes not For if those Commoners that were judged by them did not stand upon their priviledge nor demand an exemption from the judgment of the Lords they did only lose to themselves the particular benefit of Appeale for vigilantibus non dormientibus jura subveniunt the lawes only assist those that claime the benefit of them not those that pray not in aid of them and such presidents ought not to be cited in prejudice of others that are more watchfull over their liberties But wee have another objestion made that there is matter of scandall against a Peer of that House contained in Mr. Lilburres Charge and therefore fit to be examined there We acknowledge the Earl of Manchester to be a person of great honour and will not blemish him as he stands unheard with a supposition of his being guilty But neverthelesse we conceive that it would not have lessened his honour to have preferred some Information in the Kings Bench or brought some Action at Common-Law upon some of the statutes de scandalis magnatum for the supposed slander contained in the bookes written by Mr. Lilburn whereunto Mr. Lilburn might have pleaded his lawfull plea either by may of justification or deniall as his case would require him In both which cases Mr. Lilburn should have been tryed by a Jury of 12 honest men Commoners his equals and my Lord have avoyded any suspition of being partiall in his own cause as it is said in the book of 8. H. 6. f. 14. Br. Coâ—â—sans 27. of the Chancellour of Oxford or that he went about by this so sudden and summary proceeding to hinder or fore-stall the evidence that might bee against him in his own cause and Mr. Lilburn had had a legall way for his defence for if he had justified the supposed scandall and proved it it had bin no scandal the Jury must have acquitted him if he had pleaded not guilty and for the words proved against him he must have paid dammage to the Earle as the Jury should have assessed And this had been and is the only way of tryal in such a case and is according to the statute of Magna Charta and the Law of the Land and it is a Maxime in Law That where remedy may bee had by an ordinary course in Law the partie grieved shall never have his recourse to extraordinaries Therefore if a man should say of the Lord Chancellor or Lord Keeper of the Great Seal that he was a corrupt Judge and that he gave a corrupt judgment in such a Cause depending before him upon an English Bill in Chancery The Lord Chancellor or Lord Keepers remedy against that person for this scandal is upon these statutes and not by an English Bill in Chancery before himself to be
goods which law is since confirmed by the statute of 14. E. 3. c. 9. with some inlargement as to under-keepers of prisons and the penalty of the law and that Gaolers having done this have been hanged for it you may read 3. E. 3. 8. Northampton Fitzh pl. Cor. 295. and else-where but this for a taste to them Wee now come to shew what fees are due to them The Mirrour of Justice p. 288. tells us that it is an abusion of the law that prisoners or others for the to pay any thing for their Entries into the Goale or for their going out this is the common-law there is no fee due to them by the common law See what the statutes say The State of Westm 1. c. 26. saith that no Sheriffe or other Minister of the King shall take reward for doing their Offices but what they take of the King if they do they shall forfeit double to the party grieved and be punished at the will of the King Under this word Minister of the King are encluded all Escheators Coroners Gaolers and the like soe Sir Edward Cook 2. part of his Instistitutes p. 209. affirms and agreeable is Stamf. pl. Coron 49. a. Nay by the statute of 4. E. 3. c. 10. Gaolers are to receive theeves and felons taking nothing by way of fees for the receipt of them so odious is this extortion of Gaolers that very theeves and felons are exempt from payment of fees And we find in our Law-bookes that no fees are due to any Officer Gaoler or minister of Justice but only those which are given by Act of Parliament for if a Gaoler will prescribe for any fees the prescription is void because against this Act of Parliament made 3. E. 1. being an Act made within time of memory and takes away all manner of pretended fees before and wee are sure none can be raised by colour of prescription since and therefore we find by the bookes of 8. E. 4. f. 18. That a Marshall or Gaoler cannot detain any prisoner after his discharge from Court but only for the fees of the Court the Court being not barred by this statute of Westm 1. afore-mentioned and if he doe he may be indicted of extortion and agrecable to this is the book of 21. H. 7. f. 16. where amongst other things it is held for law that if a Gaoler or Guardian of a prison takes his prisoners upper garment Cloak or money from him it is a trespasse and the Gaoler shall be answerable for it this is a note for the Gentleman-Porter of the Tower so that we may undeniably conclude that there is no fee at all due to any Gaoler or Guardian of a prison from the prisoner but what is due unto him by speciall Act of Parliament And if a Gaoler or Guardian of a Prison shall take any thing as a fee of his prisoner he may and ought to be indicted of extortion and upon conviction to be removed from his office And if his prisoner by constraint menasse or dures be enforced to give him money he may recover that money against the Gaoler again in an Action of the case to be brought against him as his Bayliffe per accompt rendre And it is fit to be remembred also that whilest prisoners are in custody having nothing of their own to maintain them being either despoyled of their estates or goods by plunder sequestration long lying in prison or otherwise That the prisoners in all the Kings prisons should be maintained at the Kings charge out of the Kings Revenues according to the old law of the Land Bracton said thus Prisones imprisonati antequam convicti fuerint de terris suis desseisiri non debent nes de rebus suis quibuscunque spoliari sed dum fuerint in prison◠debent de proprio in omnibus sustentari doneo per judicium deliberati vel condemnati fuerint which we English thus Prisoners detained in prison ought not to be disseised or put out of their lands and free-holds nor spoyled of their goods before they be convicted but they ought to be maintained of their own goods and estates in all things they want untill by judgment they are either acquitted or convicted Nay we say further that if prisoners have not whereof of their own to live theyought to be maintained according to their qualities out of the Kings revenue and at his charge whose prisoners they are and this is according to the fundamentall lawes of the Land and is a liberty inheritable belonging to the free-born subjects of England but if wee look into the prisons of these said times Oh! what horrible oppressions extortions cruelties and most unchristian-like tyrannies are exercised and practised upon the free-born subjects of England in all prisons within the kingdome by these sons of Belial these ravening Harpies and tormenting Gaolers whom we may properly call the Divels Deputies that rack even the very bowels and feed upon the very livers of their prisoners sucking away the very blood that should give life to their bodies from them what lamentable cryes sighes and groanes doe wee hear from every corner of this kingdome especially of this City from the poor starved oppressed life-wearied prisoners shut up inclosed in the Dungeons and Prisons in all places What horrible lamentations imprecations and curses are uttered and sent up to God Almighty in anguish of mind and bitternesse of spirit by these poor prisoners their wives and children not onely against their tormenting Gaolers but also against those Priests of the body politique those Country-Committees who have turned the wives and children of poor prisoners a begging and sent them up to sterve in Prisons and Dungeons under the hands of mercilesse Gaolers with their distressed Husbands and Parents having not only their goods and free-holds taken away from them which by law should be their support in prison but what also they beg or borrow is extorted from them by these ravening mercilesse and oppressing Gaolers and their Ministers We therefore the free-born people of England having seriously weighed and considered with our selves that by these lordly powers and sentences executed upon us by that sentence of the house of Peers upon Lieut. Col. John Lilburn a free-born English-man and one that hath so often with his sword in his hand for the redemption and reviving of our declining liberties adventured his lite in the field against the Royall intruders and out of hatred and detestation to the execrable and odious oppressions of Cōmitteemen Gaolers and other inferiour Ministers of this present State having an earnest desire and resolution to enjoyour liberties which with our dearest bloods and with the losse of so many lives of our dear brethren and vast expence of treasure wee have purchased and being of nothing so much affected and enamoured as to live under the happy and flourishing estate of this ever renowned Parliament the most honourable Commons whom we have chosen intrusted for us to sit at Westm.