of Justice where the cause dependeth And saith Bracton the King can doe nothing but what he can doe by Law So as saith the Lord Cooke the command of the King is as much as to say as by the Kings Courts of justice for all matters of Judicature and proceedings in Law are distributed to the Courts of Justice and the King doth judge by his Justices 8 H. 4. fol. 19. 24. H. 8. chap. 12. and regularly no man ought to be attached by his body but either by proces of Law that is as hath been said by the Kings Writs or by Indidctment or lawfull warrant as by many Acts of Parliament is manifestly inacted and declared which are but expositions of Magna Charta and all Statutes made contrary to Magna Charta which is Lex terrae from the making whereof untill 42 Ed. 3. are declared and inacted to be void and therefore if this Act of Westminster 1. concerning the extrajudiciall commandement of the King bee against Magna Charta it is void and all resolutions of Judges concerning the coÌ„mandement of the King are to be understood of judiciall proceedings a part insti fo 186.187 Therefore Mr. Justice Bacon it is to no purpose for you to tell me I am committed by a higher Court and therefore you cannot legally deliver mee for I aver unto you and have already sufficiently proved it that I am commitmitted contrary to Law and Justice and therefore you being Judges of the Law and not of Presidents grounded upon will and pleasure You are to take notice of nothing but Law and therefore I demand and require my liberty at your hands as my undoubted right and due by Law which you can neither in justice honour nor conscience deny unto me But admit the Lords to be a superiour Court of justice to the Kings Bench in some cases yet if they walke beyond their bounds and limits set them by the Law and meddle with that which by Law they have no Jurisdiction of in that case they are no Court of Justice either to you or me but a company of despisers and contemners of the Law all whose actions and decrees made and done in such cases are but meere affronts unto the Law and unvalid and unbinding either to you or me or any other man in England in disobedience to which they by Law are not capable of a contempt or affront nor cannot legally punish any in such a case either with fine or imprisonment as for instance First if a court of SESSIONS which is a Court in many cases by Law questions me for my Freehould and I give them contemptuous words for medling with that which they have no Jurisdiction of they by Law can neither fine nor imprison me therefore Secondly the same holds good in the COMMON PLEAS which is an unquestionable administrative Court of Justice in divers cases yet if they go about to hold plea of murder before them if the party refuse to answere them It is in Law no contempt of the Court And if the Court shall therefore fine and imprison him it is illegall erronious and unbinding because in Law they have no Jurisdiction of such cases Thirdly and pertinent to this purpose is BAGGS CASE in the 11. Part of Cooks Reports who being summoned before the Mayer of Plimoth in open Court called him cozening Knave and bade him come kisse c. For which the Mayor Disfranchised him and it was resolved in Law that the the Disfranchisment was illegall and the reason of is was because it was not according to Law for that the Mayor in Law had no power to doe it Fourthly sutable to this is the complaint of ARCHBISHOP BANCROFT and the Judges answer to it which said Archbishop in his 22. Article to the Lords of the Privie Counsell in the 3. of King James complaines against the Judges of the Courts of Justice in Westminster Hall for affronting the actions proceedings and Censures of the High Commission Court which was erected by Act of Parliament viz. 1 Eliz. and had power by King Iames his Letters Patents to Fine and IMPRISON and yet as he complaines as you may read 2 Part. instit fo 615. 4 Part. instit fol. 335. The Judges were growne to that innovating humor of late that whereas certaine lewd persons two for example one for notorious Adultery and other intollerable contempts and another for abusing of a Bishop of this Kingdome by threatning speeches and sundry rayling tearmes no way to be endured were thereupon fined and imprisoned by the High Commissioners till they should enter into bonds to performe further orders of the said Court the one was delivered by HABEAS CORPVS out of the Kings Bench and the other by a WRIT out of the Common Pleas and sundry other prohibition have been likewise awarded to His Majesties said Commissioners upon these suggestions that they had no authority to fine or imprison any man c. Which practices and doings the Judges in their answers thereunto justifie to be legall and no more then that which they are bound unto by their Oath for that the high Commission had gone beyond the legall power of their jurisdiction having no power by law to fine and imprison in those cases and therefore the Law being the surest Sanctuary that a man can take and the strongest fortresse to protect the weakest of all it ought not to be denied to the meanest man that demands it against the greatest seeming legall oppressor that act of violence or wrong being most hatefull of all others when it is done by uncontinuance of justice and therefore that man which legally indeavours deliverance from it ought from the judges of the Law by Magna Charta to have it freely without sale fully without any deniall and speedily without delay in which regard the aforesaid Judges did not only justifie their forementioned legall practice but also fall very foule upon the Arch-Bishop c. for taxing the Judges and Iustice of the Kingdom confidently averâ—ing that for lesse scandalls then his c. in taxing the Iustice of the Kindow divers have been severely punished And Sir Edward Cooke in the 4 part of his institutes Chap. of the high Commission Court in causes Ecclesiasticall fo 331.332.333.334 335. instances divers others that for notable Ecclesiasticall crimes were fined and imprisoned by the high Commissioners and upon demanding their right from the Judges of the Courts of Justice in Weslminster Hall they were relieved and released by them by the strength of those nerves and sinewes of the Law Prohibitions and Habeas Corpusses But above all the rest that he there mensions Iohn Simpsons case in the 42. Eliz. is the most remarkable to my purpose which Simpson being accused for committing adultery with the Wife of Edward Fuste over which case by Law the high Commissioners had Iurisdiction whereupon the high Commissioners issued out there warrent to Richard Butler Constable of Aldrington in the County of Northamton for
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
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.
am that the dealings of the Lords and Commons with me demonstrated by their orders of committments flowes not from any power given them either by the Law of the Laud nor from the Indentures betwixt them and their chusers no nor yet from any word or clause in the Writ of there summons or Elections and therefore fourthly it must flow from there CROOKED IVSTS DEPRAVED VVILLS and ARBITRARY PLEASVRES by which with naked faces they declare themselves to be limitted by no boundary unaccountable and obnoxius to no censures for any possible abuse whatsoever that can becommitted by them for by these committments they evidently declare there is no rule whereby to measure the rectitude or obliquitie justice or injustice of their Government and actions and by consequence they are under an impossibilitie to render an account of their wayes and doings and so by consequence the people of England are in the absolutest road way of perfect slavery that is upon the earth this the Parliament or the Lords and Commons would have the World to beleive they abhord in the King as appeares by there last declaration against him in which they shew the reasons of their votes not to make or to receive any addresses to or from him for in Page 12 they sâ—y the King hath laid a fit foundation for all tiranny by that most destructive maxime of his viz. that he oweth no account of his actions to any but to God alone but by the warrants of my coÌ„mitments it seemes this wicked and heathenish Maxim is Iudged by the makers thereof not to be to sweete a morsell for their own Pallets though in their said declaration they judge it to sweet for the Kings and therefore to conclude this point if this honorable Court of Justice the Judges whereof are sworne to Judge according to the Law and not lust will nor pleasure will Judge these arbitrary Committments of mine to be legal then I make my humble desire unto you the Judges thereof that you would cousen and deceive the people of the Kingdome no longer by assuming unto your selves the name of Judges of the Law but rather translate your Titles into the name of Judges of lust will and pleasure that so the people may expect the legall administration of the Law no longer from you and so I have done with the Fift and last ingredient to a legall Mittimus Now Mr. Justice Bacon seeing it is objected both by you and Mr. Justice Roll that my Commitment from the Lords is rather a Sentence Judgement or Decree hen a bare Mittimus and therefore being a judgement by the Lords a higher Court for 7. yeares imprisonment I cannot be delivered by this Court which being inferiour to it cannot reverse it nor be Judges of it To which Mr. Justice Bacon I answere First I doe not seeke unto you at present for reversement of my Sentence which is 4000. l. fine and perpetuall disfranchisement of the Liberties of an Englishman as well as seven yeares imprisonment But I come unto you as Judges of the Law who are sworne impartially to doe me Law and Justice notwithstanding any command whatsoever by any whatsoever to the contrary for my personall liberty which is my undoubted right by Law for any thing that judicially appeares before you upon the Warrants of my commitments For I have already fully proved unto you there is not legally the least crime in the world laid unto my charge and therefore no rules in Law for you to send me backe againe to prison But secondly I answer that I have already proved the Lords are none of my legall Judges and therefore all their proceedings with me from first to last are corum non judici Yea even their Sentence and Commitment it selfe for being it is against the 29. Chap. of Magna Charta it is void and null in Law which expressely saith That no Freeman shall be taken or imprisoned or be dissesed of his Freehould or Liberties or free Customes or be Outlawed or exiled or any otherwise destroyed nor past upon nor condemned by the lawfull judgement of his equals or by the Law of the Land which Law of the Land is expounded by the Statute of the 25. Ed. 3.4 37. Ed. 3.18 and Sir Edward Goke in his 2. part instit fo 50.51 to be by due Processe of Law viz That none shall be taken and past upon c. by Petition or suggestion made to our Lord the King or to his Counsell undesse it be by indictment or presentment of good and lawfull men where such deeds be done in due manner or by Writ originall at the Common Law being brought in to answere by due Processes according to the common and olde Law of the Land all which c. is confirmed by the Statute that abolished the Starre-Chamber this present Parliament 17. C. R. and all Acts Ordinances Orders Judgements and Decrees made contrary thereunto or in diminution thereof are thereby declared ipso facto to be null and voide in Law and are to be holden for errors and false judgements which totally barrs and overthtowes all Presidents whatsoever to the contrary yea although the Lords had a million of them And excellent to this purpose is Sir Edward Cookes Commentary upon the 3. Ed. 1. chap. 15 but especially his Commentary upon these words viz. Or Commandement of the King First faith he the King being a body politique cannot command but by matter of Record for the King commands and the Law commands are all one for the King must command by matter of record according unto the Law Secondly When any Judiciall Act is by Act of Parliament referred to the King it is understood to be done in some Court of Justice according to the Law And the opinion of Gascoine Chiefe Justice is notable in this point that the King hath committed all his power judicall to divers Courts some in one Court some in another c. and because some Courts as the Kings Bench are Coram Rege and some coram Justiciariis therefore the Act saith by the commandernent of the King or his Justices Hussey Chiefe Justice reported that Sir John Markham said to King Ed. 4. that the King could not arrest any man for suspition of Treason or Fellony as any of his Subjects might because if the King did wrong the party could not have his action if the King command me to arrest a man and accordingly I doe arrest him hee shall have his action of false imprisonment against me albeit he was in the Kings presence resolved by the whole Court in 16. H. 6. which authority might be a good warrant to defend his said opinion to Ed. 4. The words of the Statute of the 1 R. 2. chap. 12. are unlesse it be by the Writ or other commandement of the King and it was resolved by all the Judges of England that the King cannot doe it by any commandement but by Writ or by order or Rule of some of his Courts
me that now before them I had said for my self because my adversaries were transcendantly pocent who by their wills and pleasures had in some kind destroyed men of more power and greatnesse then all the Lawyers at the Bar and therefore Sir though I am acquainted with some Lawyers that sometimes plead at this Bar. yet peradventure my respects and obligations may be such unto them that it cannot stand with honour justice or conscience for me to desire them to plead my cause seeing I am confident they cannot do it with safety and for me to expect that from them or put that upon them that in mine owne conscience I do verily believe will be their ruine in their practise and lively hoods when I am not able in any reasonable manner to requite them I should in my owne thoughts render my selfe the basest and unworthiess of men Whereupon Mr. Justice Bacon begun to speake and to make a kind of reply or answer unto divers of the things I had infisted upon and told me that Sir Edward Cooke in the 4. Part of his instituts whom he did see I had very much studied saith That no inferiour Court could meddle to question Judgements of Parliament and after a pretty large speech told me I was committed upon a centence from a Superiour Court whose judgements by Law they neither were able nor could controule and therefore must of necessity remand me back again and after he had done I replyed Sir it is true the Judgements of Parliament is not to be questioned by inferiour Courts alwaies provided they meddle with that which by Law appertaines to the Judgement of the Parliament which the executing of Lawes in the Originall Judgeing and desiding of deferences doth not the least And besides Mr. Justice Bacon you doe not I hope in Law Judge the Lords House singly or the House of Commons single to be the Parliament true it is sir severall statutes in Queene Elizabeths time as the 27. Chap. 8. 31. ch 1. provides That if any find himselfe agreeved by false judgements in the inferior Courts he shall if he please by a Writ of Error sue in the high Court of Parliament which I cannot beleeve in Law is meant the Lords House *âŽ* And it is the most irrationall thing in the world to say that legally no Law can be binding but that which is made by the consent of the King Lords and Commons and yet to prefor a single judgement of the Lords made without all forme shaddow colour or pretence of Law above all the Acts of Parliament made for 3. or 400. yeares together for this I will offer to all the Lawyers in England and challeng them to shew me one Statute or a peece of a Statute to justifie the Lords proceedings against me in Law and I will be willing to lose my head and to bee cut in ten thousand peeces and besides it is most irrationall for the Lords who never pertended to any power but what they derived from the King to immagine or go about to make the world beleeve that they can by their wills destroy all the Lawes of England as in their dealing with me they have done when the King their fountain of power can doe no Judiciall action but by his Courts of Justice and that in the legall method manner or processe of the Law although by Law a thousand times more is given and instated into him then unto all the Lords of England and for the truth of this see the 2. part inst f. 168 186. 187 yea if the King imprison me illegally by his owne Warrant either in matter or form I have my remedy against him at law as appears by the Act that abolished the Star-Chamber and therefore it is the height of erationally to conceive or say that the Lords will shall be Lord Paramount above the will of the King their Fountain and Creator and the power of the Law which is above Him from whom they derive all they have or can pretend vnto and I am sure the law tells me that in the Courts of Justice which is established and bounded by the law and is administred adjudged and executed by sundry Judges and Ministers of the Law is betrusted a full and ample power for tryall of property of lands and goods and for the conservation of the people of this Realm in peace and quietnesse but I am sure by the Judges remitting of me back to prison there is a failer of Justice which the Law abhors and an insufficiency in the Law to deliver me from destruction by lust will and pleasure and therefore without dispute slaves are the people of Eng. in the highest and slaves they must continue if they spedily rouse not up their spirits stand stifly for their rights single for the further and due examination of the said judgement in such manner as is used in erroneous judgments in the Court of Kings Bench but the law gives not the Parliament much lesse the single House of Lords the least cognizance in the world originally to meddle with any thing betwixt party and party and if they doe I am sure by the law in force at this day it is corum non judicii but the Lords originally summoned me to their Bar be for any charge exhibited or any indictment proferred or any visible complanant or prosecutor appearing and their high commission and Spanâ—sh Iâ— quisition-like examined me upon interrogatories and so committed me to prison for which they have no shadow of ground in law Whereupon Mr. Justice Roll stept up confirmed that which his Brother Bacon had already said telling me that the Chancery and the Court of Admirals proceedings were diverse from those statutes I had alleadged as well as the proceedings in Parliament were and yet were Lex terrae and it is positively said he the law of the Land that an inferiour court as ours is cannot reverse the judgment of a superiour Court as the Lords are which we must of necessity do if we should release you which we cannot doe if we would without medling with the merit of the cause from the beginning and then the way ought to be by writ of Errour which said he will not lye in this Court in a Judgment given in the Lords House and therefore you must rest content it had been well for you you had pleaded these things before the Lords in your plea there aaginst their jurisdiction Sir said I I did so and they sent me to prison therfore not only so but in Newgate close imprisoned me therefore and would not suffer my wife to come into the Prison yard so much as to speak with me I also appealed to the House of Commons and solely put my selfe upon their Justice and Judgement but I sound them for almost these two years together deaf both unto Justice Law and reason and now as my last legall refuge I come to you after I have been almost two years in
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
ch 8. and freedom from arrests for them and their servants c. during the sitting of Parliament which the Law supposeth not to be long much less seven years which is a destruction to our fundamental rights viz. Annual Parliaments or at least Annual Elections as appears by the 4. Edw. 3. cha 14. 36. Ed. 3. ch 10. both which are confirmed this present Parliament by the triennial act in 16. Car. Rex and yet if any Parliament-mans servant be imprisoned the House of Commons themselves by Law cannot deliver him but it must be by a Writ out of Chancery and the member must make oath that the party for whom the Writ of priviledg is prayed for was his servant at the time of the arrest made all which appears in the Case of one Mr Hall the 22. of Feb. 18. Eliz. whose servant being arrested and imprisoned a Committee of the House reported to the House they could find no presidents for the delivery of him but in the way before mentioned whereupon Mr Hall was appointed by the House to go to the Lord Keeper and to do accordingly And if they cannot deliver one that belongs to themselves and priviledged by the Law of Parliament but not by the known declared Law of the Land nor punish him themselves that in the execution of the Common Law of England broke their priviledges much less in Reason and Justice can they commit or release one that is far remote from them and doth not by priviledg belong unto them the last of which is my present case and therefore no colour in Law hath the House of Commons to commit me to prison And as for the House of Lords the Petition of Right expresly saith That no man ought to be adjudged to death c. but by the established Laws of the Land and the express established Law of the Land is That no Freeman shall be taken or imprisoned or be deseised of his freehold or liberties or free customs or be out-lawed or exiled nor condemned or any otherwise destroyed but by the lawful judgment of his Peers viz a Jury of his Equals of the same neighbourhood where the crime is committed being brought in to answer by due process of Law by Indictment Presentment or Writ original according to the course of Common Law but the Lords are none of my Peers or Equals and therefore are none of my legal Judges nor have not the least Jurisdiction in any case whatsoever in the world over me And though they should have a thousand presidents to shew they have exercised Jurisdiction in the like case of mine they are worth nothing because they are all and every of them against the 29 Chap. of Magna Charta and are therefore expresly declared by the Statute that abolished the Star Chamber 17. Car. Rex this present Parliament to be null and voyd in Law and to be holden for Errors and false Judgments And as for presidents against the Lords and Commons Jurisdiction in my particular case one president against them is of more consequence then a thousand for them and the reason is evident because as Sir Edward Cook often declares all Courts of Judicature are bottomed upon the Law of the Land and it cannot be supposed that any Court can be miscognizant or ignorant of its proper Jurisdiction And for the Lords they have confessed in the 4. of Edw. 3. Rot. Parl. 2. in the case of Sir Simon De Berisford that it is against the Law for Peers to try Commoners and have promised and enacted or at least ordained that they neither shall nor will do the like again though that occasion were superlative viz. about the absolute murther of King Edward the second And Secondly although the Maior c. of the Corporation of Cambridg were by the Kings Writ out of Chancery summoned before King Richard the second in full Parliament and there impeached of horrible Treason committed and acted in levying War against their soveraign Lord and King and being expresly within the Statute of Treasons made in the 25 of Edward the 3. Cha. 2. And though they surrendred up the Charters of Cambridg in open Parliament unto the will and pleasure of the King as forfeited into his hands by their Treason and Rebellion yet as to the point of Treason they by their Councel expresly pleaded that the King and his Lords assembled in Parliament had no Cognizance or Jurisdiction there to medle with Treasons committed by them and saith the Record which under the Register or Record Keepers hand of the Tower I have to shew unto your Honor if you please to have it read they alledged divers reasons therefore and the King and the Lords by their silence allowed of their plea as good in Law and let them go without any punishment there for their notorious Treasons as appeareth Rot. Parl. 5. Rich. 2. membrana 9. num 45.58 59. which is supposed in reason they would never have done if their own consciences and knowledg had not told them that by Law they had not the least Jurisdiction in the world over Commoners in any case whatsoever For if not in Treason the highest then much less in misdemeanors the inferiorest which is the most that ever they layd to my charge And if the King and Lords have not Jurisdiction over Commoners much less the Lords without the King and much less that House of Lords that hath layd the King their fountain of power and honor aside as unfit to be addressed unto any more and yet have not essentially or avowedly altered the Government of the Kingdom seeing by their Writ of summons and all their own Declarations they own nor challenge no power unto themselves but what they derive from him and therefore by their own principles and by the Law it self they have unpowered themselves and totally overthrown and destroyed their Jurisdiction and now cannot legally or rationally be called a Court of Justice or a House of Parliament in any sence as clearly appears by the 4 part Instit chapt High Court of Parliament fo 1.366.46 the King being in Law as Sir Edward Cook there declares the head the beginning and the ending of the Parliament and in reason it is impossible where there is no primitive there should be any derivative and therefore I do positively conclude that the Lords have both by Law and Reason unpowered themselves and destroyed their House from being a House in any sence and therefore have not the least shadow or colour of Jurisdiction over me or any Commoner of England And besides I find in the time of this present Parliament many Presidents of the House of Commons in putting out their extraordinary necessitated power to redeem and rescue the Commons of England out of the devouring paws of the Lords illegal and usurped a Here Judg Bacon interrupted me and told me they could not suffer the Lords to be arraigned before them in that manner that I did and therefore pressed
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
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
where there is no law there can be no transgression Rom. 4.15 he ought not to be attainted by generall words of high treason by authority of Parliament as sometime hath been used but the high treason ought to be specially expressed seeing that the Court of Parliament is the highest and most honourablest Court of Justice and ought as hath been said to give example to inferiour Courts And besides all this seemes to me to be clearly and evidently held forth by those 2. notable statutes viz. The Petition of Right 3. Car. Rex the Act that abolished the Starre-Chamber in 17. Car. Rex So that from all that hath been said to this 4. head alone I am confident I may in Law challenge my liberty and freedom from your honours hands without bayle as my undoubted and unquestionable right by Law and which you neither can nor ought by Law to denye unto me seeing that by both the Warrants of my Commitments I am rendred a just and an innocent man there being by them not the least pretence of a legall crim laid unto my Charge for Generalls is as is already fully proved no Charge nor crimes in Law And also hath been so adjudged and declared by the present two Houses of Parliament as if it were requisite I could particulerâ—â—se fully unto you 3. instances at present I shall only give you viz. the 5. Members and the Lord Kimbolton and the Lord Major Pennington and the late 11. Members whose cases you may reade 1 part Booke Decler pag. 38. 77. 201. 845. but being I am here principally to pleade Law and not Ordinances I shall forbeare to inlarge my selfe thereupon and yet before I conclude shall with your Honours leave speake a few words to the fift and last ingredient to make a Mittimus lawfull Viz. That it have a legall conclusion in these words and him safely to keepe untill he be delivered by due course of Law and not for 7. yeares nor untill the party committing doth further order which legall conclusion is wanting in both my Commitments and therefore illegall Which most desperate CoÌ„mitments being illegall in all the 5 essentialls I may call and doe call them impoysoned Arrowes shot through the principall vitall of Englands liberty but here both the Judges interrupted me to the purpose and would not let me goe on with my Retorick so that I was necessitated for leare I should not be suffered to plead my conclusion which I looked upon to be the strength of all my work therefore was forced to skip over divers leaves to the objection and the cheife authors of them not deserving to be named or stiled the patrons of their Country no not so much as well wishers to the liberties thereof for here is Law equitie and Justice dethroned and absolute will or blinde lust challinging the proper imperiall seate of England the Commitments drawes the black line over the name of Englands Freedom yea the line of confusion upon the Kingdom if the Parliament or both Houses shall thus actually avow that they are to governe loose without the restraint of any lawes mocking the Kingdome thereby in making Judges to execute the Law yea and absolved from all Laws of government as though it were in their power to dispose of the persons of all the people of England at there will and pleasure the granting or challenging of which can be no lesse then the absolute distroying of all the mutuall relations and dependancy in a Kingdom or common wealth yea the levelling of all termes of destinction betwixt ruler ruled yea hereby the very foundation of property of meum tuum is totally overturned no man can call any thing he possesseth his owne for my person is nearer to me then my Estate and he that at his will may dispose of my person may much more at his will and pleasure dispose of my Estate And therefore Mr. Justice Bacon this manner of imprisoning is no better then a two edged sword whereby the liberties of England is mortally wounded if not actually cut in peeces and the Prime Authors of these Commitments in the eye of God and all rationall men deserve the highest exempliariest of punishments in thus subverting the very bases and foundations of government so unavoydably imbroyling the Kingdom a new in Warrs to preserve themselves from totall vassellage or distruction especially considering that they themselves have done these things after they themselves have chopt off the heads of Straford and Canterbury for the very same things and therefore by the strength of reason if there were no other law in being they deserve their own executed punishment Againe the Law never instituted a Goale for punishment and destruction but for a place of safe keeping of a criminall person that could find no better bayle where he ought to be kept and intreated with all humanitie civillity and respect till he be brought to a speedy tryall all Goales in England by Law being to be delivered 3. times a yeare at least or more oftener if neede require * 1 part instit lib. 3. ch 7. Sect. 438. fo 260. and 2. part instit fo 42.43.115.186.189.315 and 3. E. 1. ch 25. But I have been almost two yeares in prison and never to this houre had any legall Crime laid unto my Charge nor cannot be suffered to come to a legall Tryall though to my extraordinary expences toyle hazard and trouble I have indeavoured it withall my might but cannot be admitted to have any benifit of the law which I do averre is the highest of tiranny being kept in Goale in a languishing condition worse then anysuddaine death being ever dying and yet not dead And therefore I do positively averre that the Arbitratiness of the Conclusions of my Commitmants is that wich strikes the Fatall Stroke through the heart Roote of Freedome and Justice yea it overturnes overturnes the Foundations of the Kingdome this very sivgle act if drawne into president hath a seminall vertue in it whereby is contained in its selfe all the distinct species of injustice whereof the Sun was ever yet spectator Yes this arbitrary Commitment doth Ipse facto enervate yea evanuate null all established lawes of the land renders all rowles records no better then waist papers fit for nothing but to light Tobacco Pipes for to what purpose serves Magna Charta the Petition of right and other wholsom Lawes which say no man shall be imprisoned past upon c. or any other wayes destroyed but by the Lawfull Iudgement of his equalls or by due processe of Law when as the rule to punish supposed or reall transgressors shall be mens wills lusts as in my case by my Commitments c. it is so that if 500. men shall assume and arrogate to themselves the absolute dominion over the people of the Land then it may be England shall have 500. distixct lusts unto which they must conforme their actions And sure I
attaching and arresting of the body of the said Simpson which in Law is an imprisonment upon the attachment of his body and the Constable takes on William Iohnson servant of the said FVSTE to assist him in the serving of his Warrant which warrrant the Coxstable served upon him and read it unto him notwithstanding the Said SIMPSON resisted him and in his owne dofence shewed him slew the the said Iohnson that came in aide of the said Constables for which he was as a wilfull murderer Committed to Northampton Goale and indicted before the Judge by the coroners inquest of wilfull murder supposeing the said Warrant to Lawfull but the matter being very mighty the Justices of assise thought not good to proceed against him at those assises but deferred it till the next assises at what time after this long time of deliberation and upon conference with other judges of the law it was resolved that the statute of the 1 Eliz. gave no power to the high commissioners to make any warrant to arrest the body of Simpson in that case but that they ought to have proceeded by citation And therefore going beyond there legall power although by the Queens letters patents expresse authority is given to the high comissioners to send for the body of any offender c. Simpson in killing the said IOHNSON had committed no wilfull murder but only defended himselfe and his liberties and so it was found by the Jury he acquitted of murder From all which I observe first that all Iudges of all Courts of Justice in England are bound toact within the compasse of there jurisdiction given them by Law 2 I observe that the Iudges of any Court going beyond their legall Iurisdiction may and ought by Law to be resisted which resistance is no contempt of the law not punishable by it 3 That the Iudges of the Law are bound in duty and concience by Law to judge all causes that comes before them according to Law which both the single order of the Lords and the single order of the Commons is inferiour or in subordination unto as well as the royall letters pattents of â—â—e King or Queen which yet those Noble Iudges according to Law threw behind their backs and acquitted the said SIMPSON of Murder inkilling of IONHSON in his doing actions in pursuance and by vertue of the authority of the said Letters Pattents And therefore much more ought you to acquit and set my body at liberty without any more adoe from the Lords 7. yeares imprisonment being their imprisonment of me though grounded upon their decree or Judgement is contrary to the expresse declared and constant received fundamentall Lawes of England and though divers men in former ages have been so sottish or fearfull to part with their legall Liberties to the Lords and have stooped unto their Iudgements Orders and Decrees yet that is no prejudice or hinderance unto me from the injoyment of mine who now demands them at your hands as my right by Law 4. And lastly seeing as is before undeniably proved that the King the Major is the primitive and the Lords the Minor are but the derivative and seeing it is before also fully proved that the Letters Pattents of the King the primative is not to be set in compitition with the Law it will strongly and undeniably follow that the orders of the single Lords who are but the derivitive cannot keepe me in prison contrary to the Law but that they ought by you without any further delay being illegall in themselves to be judged so by you as well as the King or Queenes Letters Patents were by your predecessours and my body by you to be set at liberty though it hath seemingly affronted their orders as well as the life of the said SIMPSON was saved by your predecessours although he had slaine the said IOHNSON in affront of their superiours Letters Patents and not to necessitate me for my reliefe and preservation to SIMPSONS remedy which though bloody in it selfe yet is justifiable by Law and reason by which I may defend my liberties and life against all those that in the executing of urjust illegall orders and decries would rob me of them and if in my own defence to save my life I be necessitated and compelled to destroy him or them that without Law would keep me in prison and so destroy me by famine or by sicknesse c. his life be upon his owne score for in such a case I am free from his Blood and therefore Mr. Iustice Bacon to wind up all I shall conclude in the words of learned Sir Edward Cooke in his epilogue to the 4 part of this institutes which I read thur And you honourable and reverent Judges that do sit in the high tribunals and courts or sâ—ates of Justice feare not to do right to all and to deliver your oppinions Iustly according to the Laws for feare is nothing but a betraying of the succors that reason should afford And if you shall sincerely execute Justice be assured of three things First though some may maligne you yet God will give you his blessing Secondly that though thereby you may offend great men and favourites yet you shall have the favourable kindnesse of the Almighty and be his favourites And lastly that in so doing against all scandalous complaints and pragmaticall devises against you God will defend you as with a shield for the Lord will give a blessing unto the righteous and with his favourable kindnesse he will defend him as with a shield And now dear Sir having done with my set speech being often as before I declare interrupted by both the Judges and compelled to skip over divers remarkable things in it as I have before also noted and declared which in my judgement was not fairely not justly done of the Judges unto me who ought to have given me freedom of speech * As the Lords in 1641. did give me and the Commons in Ian. last as you May reade in my Whip for the Lords pag. 10. 11. 19. and then to have judged what I said so as soone as I had done with a conge made unto them both though I confesse I spoke most commonly to Mr. Justice Bacon because I judged him to be the corum or the senior I said now Sir I have done and shall submit what I have said and pleaded unto your Judgements and Consciences desiring that if you conceive the businesse to be of that weight that it requires any more debate that you will take the time of 2. or 3. seriously to consider of it whereupon Judge Bacon asked me if I had any counsell to maintain what I had said and I told him no neither did I need any for I was able enough my self to do it and did offer him not only in Law but with my life to make it good professing unto him that I was very consident that Lawyer was not in England that durst or would say one quarter of that 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