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A66022 The lawes subversion: or, Sir John Maynards case truly stated Being a perfect relation of the manner of his imprisonment upon pleasure, for the space of five moneths by the House of Commons, and of the impeachment of high treason exhibited against him before the Lords, together with all the passages between him and the Lords, in messages to them, and speeches at their barre, as they were taken from his own mouth. VVherein also is contained a cleare discovery of the dangerous and destructive infringement of our native liberties, and of the arbitrary government now introduced by an aspiring faction over-awing the Parliament. Also that groundlesse false report concerning Sir Iohn Maynards submitting to the Lords jurisdiction refuted, to the shame of the reporters. By J. Howldin, Gent. Wildman, John, Sir, 1621?-1693. 1648 (1648) Wing W2169A; ESTC R204812 33,799 42

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have a writ of errou● directed to the chiefe Iustices of the Kings-b●nch for removing the errour i●to the present Parliament and he pr●duceth 〈◊〉 president in these words The Bishop of N●rwich ●●●weth that an err●neous judgement was given against him ●o the common plac● f●r the Arc●d●co●ry of Norwich belonging to his presentation an● prayed that ●hose errours might be heard and redres●ed ●n answer was ma●e that by he law errours in the common place are ●o be corr●c●ed in ●●e Kings bench and of the Kings bench in the Parliament and ●o otherwise now I desire any Lawyer to informe me whe●●er acc●rd●ng to the custom of England the hou●e o● Lords be ca●●ed the Par● of E●gl or what is done by them can be ●a●d to be ●one by Par●●am ●ut you may observe how learned Sir Edward Coo●e contra●●●t● him●elfe when once he forsakes the rule of the Law and now I suppose I may co●clude there is no wri●ten Law auth●rizing the Lords to take c●gnizance of any case of Commoners whatsoever and if S●r E● ●ooke say true 1. part lust see 19● p. 125 that in case a ●●ry commeth out of a wr●ng place or re●urned by a wrong off●cer and give a verdict Iudgement ●ught not to be given upon ●uch a verdict then much better I might conclude ●hat all the judgment of the Lords passed upon Commoners are ●u●l in themselves Objection But it will be yet objected that by Custome the Lords have a juri●diction over Commoners and that both in cases of erro●●ous judgements and also in criminal cases Answ. 1. There is no legall custome for their exerc●se of that juri●dict●on there are two things essential to a valid custome 1. 〈◊〉 2 Time yet that time must be such whereof there is no r●●m●●y of man ●as C●ok saith 1. part d●●stit p. 144. and the usage must be peaceable end without interruption but both these are wanting for i●s within the memory of man that the Houses were divided and ●he● the Lords had no such juri●diction The Lords being a House by themselves was but since King Richard the first but more pr●o● of this in some other trea●ise and i●s evident by the Precedent of Sir 〈◊〉 de Ber●sfords Case That the Lords have beene interrupted in their prac●●●e of judging Commoners Answ. 2. Suppose there were custome yet there is not the same reason that 〈◊〉 should inves● any with a power of jud●cature as that it should be a Title to any liberty pertaining to a Town or an inheritance c. if long usurpations of power should make the exercise thereof legal●● the very ●ounda●i●n of just Government were subve●●ed Answ. 3. But ●ur●her no custome that is against an act of Parliament is valid in Law and it s proved that the Lords exercise of jurisdiction over Commoners is against many Acts of Parliament there may be fifty found con●●●ming each other Answ. 4. Customes are only valid when rea●onable Co●k 1. part ●nstit p. 62 that any customes how long soever it ●ath continued if it be against reaso● it s of no ●orc● in saw and pag 56. ●e saith nothing that is contrary to reason is consonant to law that o●Vlpia●● l. 29. 〈◊〉 unquestionab●● quod ab 〈…〉 est c. Course of time amends not that which was corrupt in ●●s originall Now that the Lords jurisdiction o●er Commoners ●s di●con●●nant to equity and reason I suppo●e Sir Iohn Maynards Protest that followes will evince to minde ●ree from prejudice yet this I ●hall here add That the ●aw of nature abhors the I 〈◊〉 claime to a juri●d●ction over all the people of the Land as unreasonable 1. ●●s repugnant to the law of nature that the judgment of the law and of the guilt and innocency of persons should be comm●tted to any number of men withou● a di●cretion o● 〈◊〉 or any judgment passed upon them whether they b● capa●●e or 〈◊〉 of the place of judgment and this is the case o● the 〈…〉 most of them at least ●it in that House becau●e 〈◊〉 were 〈◊〉 ●f Patents wh●c●●ad P●ttents for B●●onies Ea●ldom● c. from the 〈◊〉 and no pr●●●tion ever made of their sutablenesse or unsut●blen●sse and the laws of the land seeme also to 〈◊〉 this Sir Edward 〈◊〉 1 part I●st ● pag. ● saith If an Office either of the grant of the King or Subject which concerns the administ●●tion proceeding or execution o● 〈◊〉 and b● gran●ed unto a man that is unexp●●● and ha●h 〈◊〉 of science to execu●e the same the grant is m●erly void in law Is it not indeed irrationall that any person should be consti●ut●d a Ju●ge over the people blind sole before 〈◊〉 poss●●le to know whether the●e will be honesty 〈◊〉 wisdome in him 〈◊〉 for judgment ● I●s repugnant to the law of nature that any number of men and thei● Po●●erities should be constant Judges of the guilt or innocency of wh●m they please or of a●l the people ●n a 〈◊〉 if this wer● gr●nted can it be avoyded but they mu●t be frequently ●u●ge● and Parties and this is directly included in the Lords claime to a juri●dicti●● over Commoners and expetience gives cleere test●mony to this in Sir ●ohn Ma●●ard● present case for the major part at●east of the present Hou●e of Lords subscri●ed an Engagement at 〈◊〉 heath to joyne with the Army against the City in that unhappy diff●●●nce and yet they would be the Judges of Sir ●ohn who they ●ay i● guilty of treason ringaging against them and the Army at that time 3. I c●u●d say the written Lawes of God ab●●rs the manner of the Lords claime to a ●uri●d●ction over Common●●● they will not submit the 〈◊〉 to be ●●●yed ●y Commoners and ●o do not to others a● they would the●●hould do to them Therefore I may conclude that the common law of ●●gland the ●nwritten and written law of God declares this custome ●●ll in Law Answ. But ●●rch●r Custome in this case cons●sts onely of many Acts of Judicature which the Lords have exercised over Commo●ers and àfacto ad jus non valet argumentum because they have usurpod a power therefore they may continue their usurpation is on good Argument Yet it may be further said that all their judgements passed upon Commo●ors before this present Parliament were ●ulled by the Acts of Parliment made in 17. Car. for the abolishing the Sta●●e-Chamber and Counsell Table wherein Magna Charta and the Stat. of 42. Ed. 3. and the Petition of Right 3. C●r and other Statutes were confirmed which declare all judgements that are passed co●ta●y to the Te●●re of Magna Charta to be holden for ●ought and by consequence the ●ords are de●oyd of all pres●de●ts also for exercising a ●urisd●ction over Commo●ers unlesse they produce those made si●ce the War wherein the voice of the Law could not be heard for the noise of the Drum and sou●d of the T●●mpet Now from all these considerat●ons I shall presume to collect this
The Lawes Subversion OR Sir John Maynards Case truly stated BEING A perfect Relation of the man 〈…〉 s imprisonment upon pleasure for the space of 〈◊〉 moneths by the House of Commons and of the Impeachment of high Treason exhibited against him before the Lords together with all the passages between him and the Lords in Messages to them and Speeches at their Barre as they were taken from his own mouth VVherein also is contained a cleare discovery of the dangerous and destructive infringement of our native Liberties and of the arbitrary Government now introduced by an aspiring Faction over-awing the Parliament Also that groundlesse false report concerning Sir Iohn Maynards submitting to the Lords Jurisdiction refuted to the shame of the Reporters By J. Howldin Gent. Printed for Ja. Hornish 1648. Sir John Maynards Case truly stated MUch admired Aristotle Tutor to the greatest Emperour Alexander the great was of opinion that the Lawes a not Kings Princes or Magistrates be they one or more or never so good ought to be sole ●ords or Rulurs of the Common-wealth and that Princes and Governours ought to governe by the Lawes and can●ot co●mand what the Lawes do not command and ●n his judgement those who command that the Law should rule command th●t God should rule but he that commands a man to be a Prince i. e. to be an absolute Ruler commands that ●●th a man and beast should be Prince● for 〈…〉 and the lust of the mind are br●tish affect●ons 〈…〉 b●th Mag●strates and the very best of me● out the Law●● a constant a●d quiet mind and reason ●o●d of all 〈…〉 and desire answerable to this opinion have 〈…〉 proceeded in their first Constitution of their Governm●●●● Pelitius saith that Kingdomes b were first erected and 〈◊〉 on the worthiest men by the free voluntary joynt ●●●sent of the people and founded a●d co●fi●med be Customes and Lawes of each Country a●d th●●efo●e they o●l●ged their King to conforme their Government unto the Law●s established so Dioderus Si●ulus testifies of the Egyptians that their Kings c were bound to conforme the Regiment of their Kingdomes and their lives and families to the Lawes establ●shed and were obnoxious to sensures in case of defaults and Zeneph●● testifies the same of the Lacedemontans and d Licurgu● being little lesse then an Oracle in his time took an Oath every moneth to govern the Kingdome according to the Lawes ●nacted and M. T. Cicero informes us of the famous Romane State that the people gave Lawes to all their Magistrates by which they should order their Government thus much may be deduced from these words Imperium in Magistratibus Authoritatem in S●●at● e potestatent in plebe Majestatem in populo command was in the Magistrates Authority in the Senate power in the men●all people and majesty in the people in generall so Livy hath these words frequently 〈◊〉 decre●●● populus jussit the Senate hath decreed the people commanded and whoever hath leisure to read Purc●● pilgrimage and voyages Peter Martyrs Jud. Hist. Boemus de m●ribus Gentium Strabo and such other Histories shall find that the Athenians Persians Corinthians Medes and Germanes Swe●es D●nes c. prescribed to all their Governours Lawes and Rules whereb● to govern and reserved to themselves Soveraigne power to prescribe farther Lawes and limits to their Kings and M●gistrates and to call them to a publike accompt for their off●●ces and misgovernment and thus A●drew Horne f an ancient Lawyer informes us that when the forty Saxon Princes which for some time r●led this Nation chose to themselves a King they made him sweare at his ●n●●garation that he should govern the people by rules of Law without regard to the person of any and that he should be obedient to suffer right as well as any of the people and at the Coronation of Kings unto this day there is an Oath appointed wherein they s●eare g to keep the Lawes and Customes then established and to grant and defend all such rightfull Lawes as the Commons of the Realme shall choose And without controversie this concurrent practise of the Nations in obliging all Magistrates to govern by Lawes only was founded upon impreg●●ble reason and equity Every Nation is but a rude ind●gested Chaos a deformed lump untill Lawes or rules of Government be established Lawes are the vi● plistica or formatrix that formes the principall vitalls the heart the bra●ne the liver of the Common-wealth as it is such the Law●s of every people puts the difference as to them between things judicial● just and unju●● good and evill the Lawes are the only measure and boundary of every mans right interest and property without such rules of Government every mans right to any thing is equall and every mans t●tle to Magistracy or rule r●ns parallel with other therefore when the Lawes of a people are destroyed and Magistrates exercise dominion over them as being loose and absolved from all Lawes or Rules of Government and obnoxious to no censures then all things returne to confusion and every mans depraved will become● a law to himselfe and as many as he can subdue by his sword then iust envy malice covetousnesse and ambition supply the place of Law and most men must be subject to their Dictates and decisions th●● faction and private interest exalt and abase destroy and save alive at their pleasures then distractions commotions and bloody massacres overspead the face of a people and no security remaines to the estates liberties or lives of the people more then to the wild beasts of the Forrest Now what pu●blind eye cannot discerne Englands fa●e in this Glasse are not our Lawes subverted and turned into arbitrary Decrees and resolutions every day rising and every day withering like M●shromes and are we not governed by those who conceive themselves absolved from all Lawes or Rules of Government ●●a are we not governed Jure vago inc●●●● by a leaden 〈◊〉 Rule to which we cannot square our obedience but in●st writ untill the Grandees that guide the Legislative power measure our actions for us or apply the Rule m●● we not complaine with the French-men in Lewis the eleventh tim●s that will is law and law is will what is now more common then a transgression without a Law an accusation without an Accuser and imprisonment without a cause rendered a sentence without a legall Judge and ● condemnation without a legall hearing or triall who can promise himse●fe the least safety either in his life o●● liberty unles●e h●s mind and conscience be ta●quam 〈…〉 as a pure table wherein the prevailing faction may freely engrave the determinations of their wills I shall not for present endanger the Readers ey●s with an uncessant e●●iux of brinish tea●●s by relating many of the do●efull tragedies really acted upon our Libert●s I shall ooe●● give you an impartiall narrative of Sir Iohn Maynards Ca●e and of the wounds which our liberties
●●sseised of his Free hold 〈◊〉 Li●er●ies or Customes or 〈…〉 or exi●ed or any wayes destroyed nor we will not passe● on him nor c●ndemn him but by the law●ull ju●gment of hi● 〈…〉 the law of t●e Land B● the jud●ment of ●is peers is h●re mea●●●●e verdict of 12. of his Equals and observe the latitude o● this ● ex●ends to a●l cases whatsoever not only to cr●minall ca●es but ●o a●● ca●e● o● con●rover●e about me●m ●● tuu● all is co●t●●n●d u●der be ●● words Free-Folds L●berties ●r Free-cu●tomes whatever any man p●ssesse its to be comprehended under the n●●●●n ●f Free ●o●d or a Liberty or Free-hold and yet i● this shou●d seem de●c●tive ●●e n●xt word● would supply if we will not passe upon any man neque bimu● n●que m●ttem●● c. ●aith the Latine that is nei●her the King nor any justice or C●u●● shall try any ●ree men but by his Equals ●o that by law the Lords are totally excluded ●rom intermedling with the tryal● of any Commoner in any case w●at●oever And to his agrees the Statu●e of 25. Ed. 3. c. 4 42. Ed. ● c 3. and there are 〈…〉 S●a●utes in force ●ew in print enacted since Magra Charta which ordains the tryall of all Commoners to bee by the●● Equals on 〈◊〉 and t●e same Charter and many of those Statutes particularly are confirmed by the Pe●●tion of Right 3 Car. and by the Acts in d● this ●re●ent Parl●ament for the a●ol●sh●ng the Star chamber and 〈◊〉 ●a●le n● the ●an●n Lawes so that whilest those Laws re in force the Lord House is incapable to be made Iudges of any Comm●●er But it se●m●s this liberty of the Commons of England was sometimes invaded ●y the Lords and Sir E. Cook 2. part of Inst. ● p. 50 ●ai●h that i● w●s enacted at the 〈◊〉 of the Lords that herea●ter no Peeres should be droven to give judgment on any other● then on their Peers according to the Law and he cites Rot. Parl. 4. E. 3 ●● 6. 10 ma●ntaine his asser●ion and it s recorded in 4. E. 3. Rot. 2 in Sir S●mon de Bere●●ords case who was adjudged as an accessary to Roger Mor●imer in the murder of King Ed. 2 in these words THE PRECEDENT ANd it is ass●nted an● a●r●ed by our Lord the King and all the Gra●●ees in 〈◊〉 Pa●●●ment that albeit the ●aid P●●r● as ●udges of Parliamen● took up●n 〈◊〉 in the presence of ●ur Lord the King ●● make and given 〈…〉 by the a●●en● of the King upon ●●me of ●●em which were not their p●●rs and by ●eason of the murther o● 〈…〉 ●ord a●d ●●struction o● him which was so ●eere of 〈◊〉 r●yall and ●on of a Kin● that therefore the 〈◊〉 Peeres which 〈…〉 be not bound orcharged to give judgem●n● upon o●●ers 〈◊〉 their Peers nor shall do it but let the Peers of the Land 〈◊〉 power but of that for ever they be discharged and 〈…〉 judgment ●ow given be not drawne 〈…〉 for the time to c●me by which ●e said 〈◊〉 ●ay ●e charge 〈…〉 to judge others then their Peeres aga●nst 〈…〉 of the Land ●f any suchcase happen Now 〈◊〉 hence ●● may ●e collected that it was against the law of the land for the Lords to ju●ge a Comm●ner in any case whatsoever and 〈◊〉 they were again b●●rd by their own 〈◊〉 ne●er to judg any 〈…〉 for Sir 〈…〉 a that was ●n●●ted But 〈◊〉 the law were 〈…〉 as to the L●●ds 〈…〉 can 〈◊〉 any juris●●●● 〈…〉 not receive it as a trust 〈…〉 which 〈…〉 a juri●d 〈…〉 them ●nd a● yet ●● never 〈…〉 law that ga●e th● 〈…〉 to the●r practi●e But 〈…〉 at the Lords●re the supream C●ur● of ●ustice in ca●es 〈…〉 ju●gmen● or ca●es of 〈◊〉 and 〈…〉 by Act of Par● by 〈…〉 th●● the Author of 〈…〉 upon 〈…〉 Sir 〈…〉 Lords I 〈…〉 c. and it may 〈…〉 th●t the lawes whereupon 〈…〉 of their 〈◊〉 ever him in criminall causes ●ever made such a distinction between causes criminall and civil ●nd that in case 〈◊〉 L●wes were invalid to exclude them from exercising any 〈…〉 of ●rrour and which conce●●es the ●ree●olds and liberties ●● Commoners then they are also invalide to restrain their exercising jurisdiction o●er him in cases criminall But because the stat● of Ed. 3. c●5 conceived to be ●h● b●sis of the Lords jurisdiction in cases of erronious judgements ●del●yes c. I shall un●●ld the meaning of that statute That stat● orda●ned that a 〈◊〉 2 Ear●●s●● B●rons should bee ch●s●n to receive Commissions from 〈◊〉 King to ●e are the Peti●●ons of those where ca●●●s w●r● d●●lar●d in any 〈◊〉 ●o that no judgement could ●e obtained and to in●uire 〈◊〉 jus●●ces of any court the reasons of such de●ai●s and by the advice o● t●e ●ustices of ●oth Ben●●es t● 〈…〉 and give judgement and remand the cause ●o the ●ustices to execu●e the ●ai● judgement 〈◊〉 if the case be 〈◊〉 it is to be transf●rred to Parliament That those 〈◊〉 were thus chosen by Parliament to prevent de●ayes of judgement should 〈◊〉 onely 〈◊〉 one Parliament until 〈◊〉 ther●fore P. A. B B of 〈◊〉 the Earle of 〈◊〉 ●● 〈◊〉 the Lord 〈…〉 were then 〈◊〉 ord●●ned to cont●●ue ●nti●l the n●●r Parliament Hereby it appeares this statute gives the house of Lords no power to 〈…〉 in cases upon ●●its of 〈◊〉 ●●ither d●●h it appeare that this sta●u●● 〈◊〉 been observed 〈…〉 Parliaments have ever 〈◊〉 ●●at time chosen 2 〈◊〉 2 Ba●ors ●● hear petitions in cases of 〈…〉 judgement ●ut the law hath provided that all the Iustices Ba●●●ns of the 〈…〉 being of the ●rd●r of the ●uoi●● or else the Lor● 〈…〉 and Lord 〈…〉 either by a speciall wr●● 〈…〉 determine 〈…〉 to be passed this is the 〈…〉 8. 31 El●● 1 A 〈…〉 would 〈◊〉 ●ow that 〈◊〉 of the Lords jurisdiction 〈…〉 upon this statute 1. 〈…〉 judgment 〈…〉 Lords ●●use are so much as 〈…〉 statute 2. T●e 〈…〉 ord●●ned to be c●o●en to he●re Petitioners in cases o● 〈…〉 judgment were to be c●osen by the Parliament 3. 〈…〉 if the case wherein judgment was 〈◊〉 were 〈…〉 Lords should 〈◊〉 it unto the next Parliament And as for the statute of 2● of E●iz c. 8. which th●y say confirmed ●●e stat of ●4 Ea. ●5 the very first clause says thus forasmuch as erroneous Judg●m●nts given in the Court called the Kings ●ench are onely to be re●●rmed by that high C●u●t of Pa●i●men● c. And then it makes that provis●ion which I mentioned be●●re by a wri● of errour from the Chancery and yet it leaves ●ha● plan●●●e at libe●●y to ●ue●n the high Court of Parliament to rever●e the 〈◊〉 Iudgement and so ●e stat of 31 ● d. c. 1. al●o conc●ud●s and Sir Ed. 〈◊〉 in the same place 4 part I●st p 20 21 where he a●●owes the 〈◊〉 ●o have ●urisd●ction over ●ommoners in cases of er●oneous Iudg●m●n●s and saith thus a party grieved upon a Petition to the King may