more high and absolute the jurisdiction of Court is the more just and honorable it ought to be in the proceeding and to give examples of justice to inferior Courts And fol. 38. He is confidently perswaded that the rehearseal of this unjust Attainder will hereafter cause the Honorable Members of both Houses of Parliament to be so tender of their duty in perserving the fundamental Laws and Liberties of the people of England as that never hereafter such an unjust Attainder shall be brought where the party is forth coming to condemn him without hearing of him And consonant unto this is the Scripture and the Law of God therein contained as appears by the third of Gen vers 9. where God after Adam had transgressed his law summons him before him to answer for himself before he would pass judgement against him And when Sodom had abominably defiled its wayes with the height of wickedness yet the just God of heaven and earth would not judge condemne or pass sentence against them till he went down to see whether they have done altogether according to the cry that is come up against them or not and saith God I will know Gen. 18 and Deut. 17.6.11 and Chap. 20.15 God saith expresly One witness shall not rise against a man for any iniquity or for any sin in any sin that he sinneth at the mouth of two witnesses or at the mouth of three witnesses shall the matter be established And by the hand of Moses he required the people of Israel to do according to the sentence of the Law and the judgement which shall be given thereupon and not to decline from the law and the judgement which shall be given thereupon and not to decline from the Law to the right hand or to the left And suitable to this is the judicial and legal proceedings of the great congregation of the children of Israel consisting to the number of four thousand able men in the case of the Levite and his ravished and slain concubine who in their judicial proceedings in that case first demanded of him how so great a wickedness came to be committed in Israel And the conclusion after their hearing and examining the cause was to consider consult and then to give sentence And saith Nicodemus that learned man in the law of God against the Scribes and Pharisees in behalf of Christ Doth our law judge any man before it hear him and know what he doth John 7.51 And saith Festus the heathen Roman Governour in Judea that had no other guide to walk by but the light and Law of Nature In the behalf of Paul against his bloody enemies It is not the manner of the Romans to deliver any one to dye before that he which is accused have the accusers face to face and have license to answer for himself concerning the crime laid against him Acts 25.16 And saith righteous Paul who writ the Oracles of God infallibly by the Spirit of God Where there is no law there is nor can be no transgression Rom. 4.15 But saith that judicious and learned Lawyer Sir Edward Cook in the third part of his Institutes folio 35. of Rhadamanthus that cruel and wicked Judge of hell First he punisheth before he hears like the late Parliament and when he doth hear the denial then he compels the party accused by torture to confess it but saith he far otherwise doth Almighty God proceed for after that the guilty person is accused he calls he examines and then judges or condemns Luk. 16.1 2. But in his fourth part Institutes he proceeds and goeth on and saith in his last fore-recited folio As evil was the proceedings in Parliament in the second of Henry the 6. Number 18. against Sir John Mortimer the third son of Edmund the second Earle of Marsh descended from Lionel Duke of Clarence who was Indicted of high treason for certaine words which Indictment without any arraignment or pleading being meerly feigned to blemish the title of the Mortimers and withall being insufficient in law as by the same appeareth was confirmed by authority of Parliament and the said Sir John being brought into the Parliament without arraignment and answer judgement in Parliament was given against him upon the said Indictment that he should be carried to the Tower of London and drawn through the City to Tiburn and there hanged drawn and quartered his head to be set on London-bridge his four quarters on the four gates of London as by the Record of Parliament appeareth And therefore in the next folio being folio 39. he saith that whereas by order of Law a man cannot be attainted of high treason unless the offence be in law high treason he ought not to be attained by general 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 honorable Court of Justice and ought as hath been said to give examples to inferior Courts And further to shew that Parliaments which in their right constitution are the best conservators of our laws and liberties are erroneous things when they walk by their own wills and forsake their true and only guide the fundamental laws of England What need there any more instances then many of the Armies own Declarations in several of which and their frequent discourses they have declared the late Parliament a traiterous Parliament breakers of their trust and imbroylers of the Nation in bloody wars and subverters of the peoples liberties and freedomes yea and in the conclusion the Lord General Cromwel himself and Major Gen. Harison with their own hands have pulled them out by the ears and pluckt them up by the very roots as final breakers of their trust and as a pack of the vilest knaves and villaines that ever breathed in England although they were fenced in and about by an Act of Parliament made before the wars by King Lords and Commons in the seventeenth of the raigne of the late King being in the yeer 1641 that they should not be dissolved but by their own free and voluntary consents And also since they changed the Kingdome into a Commonwealth by two several Acts of Parliament of the 14. of May 1649. and the 17. of July 1649. In which it is expresly made high treason for any Englishman or men by writing printing or words declaring or by endeavouring to raise or stir up force to dissolve the late Parliament or their Councel of State without their own consents or to say that the said late Parliament or their Councel of State is tyrannical usurped or unlawful as by the said Acts of Parliament with reference thereunto being had more at large doth appear which Acts are printed in the first part of the trial or arraignment of the prisoner at the Bar at Guild-hall Oct. 1649. pag. 86 87 88 89. the first of which Acts viz. that of the 14. of May 1649. thus followeth
concerning themselves but it shall be examined and tryed before the Justices of Assizes in the Sessions of the Assize as appeareth by the 8. of Hen. 6. chap. 7. and 23. Hen. 6. chap. 15. Yea the Parliament are not to punish those that will not pay them their wages for their service done in Parliament but the refusers are to be punished by the legal administers of the law in the ordinary of Courts of Justice as appears by the 23. of Hen. 6. chap. 11. Yea the law of England which is right reason or as Sir Edward Cooke stiles it in his second part Institutes folio 179. the absolute perfection of reason and which as he saith is the surest sanctuary that a man can take and the strongest fortress to protect the weakest of all and therefore it is called the best birthright the Subjects hath for thereby his goods lands wife children his body life honour and estimation are protected from injury and wrong for saith he to every one of us there comes a greater inheritance by the law then by our parents it being the Judges guide in all causes that come before them in the wayes of right Justice which never yet misguided any man that certainly knew them and truly followed them 2 part of the Lords Cooks Institutes fol. 56 63 97 526. and the 4. part folio 41. yea and the law-book of Ed. 6. folio 36. with the arguments in the Law in the Court of Kings Bench upon the Writ of Habeas Corpus in the cases of Sir John Eliot Sir Thomas Daniel c. pag. 11. in Michaelmas-terme in the third of the late King Charles calls the good old fundamental Laws of England the great inheritance of every subject and the inheritance of inheritances without the injoyments of which inheritance we have no inheritance at all And therefore the said Oracle of the Law of England the Lord Cook doth bitterly cry out of the unexpressible mischief that accrues to the whole body of the people of England when any fundamental maximes of their good old fundamental Laws are invaded or incroached upon either by Parliament or any other power whatsoever as appears in his 2 part Institutes folio 29 46 48 51 74 103 104 179 210 249 529 533 534 540. and 3. part fol. 208. 4. part fol. 41 196 197 198. and the preface to the 4. part of the Lord Cookes Reports where he saith the Laws of England consist of three parts the Common Laws Customes and Acts of Parliament for any fundamental point of the ancient Common Laws and customs of the Realm it is a maxime in policy and a tryal by experience that the alteration of any of them is more dangerous for that which hath been refined and perfected by all the wisest men in former succession of ages and proved and approved by continual experience to be good and profitable for the Commonwealth cannot without great hazard and danger to be altered or changed see also that old Law-book called The myrror of Justice page 239. And which law as the author of the ancient and excellent law book called the Doctor and Student chap. 4.8 is grounded upon six foundation or basis viz. the law of reason Secondly the Law of God 3. Upon divers general customes of common utility 4. On divers principals that be called maximes 5. On divers particular customes 6. On divers Statutes made by the Kings and the Common-councel of the Nation all which do abhor arbitraâ—iness in the law-proceedings especially in criminal cases and especially it abhors the arbitrary uncertain way of proceedings in Parliaments the rules of which certainly no man in heaven or earth knoweth the vileness wickedness and mischeviousness of which is sufficiently demonstrated in the Lord Cravens late printed case And saith that worthiest of English Lawyers Sir Edward Cook in the Proeme to the third part of his Institutes It is a miserable servitude or slavery where the law is uncertaine or unknown and therefore it is that the twenty ninth Chapter of Magna Charta the Petition of Right and the Act that abolished the Star-Chamber expresly saith That no freeman of England shall be taken or imprisoned or disseized of his freehold or liberties or free customes or be outlawed or be exiled but by lawful judgement of a Jury of twelve sworn men of his equals of the same neighbourhood according to the law of the Land And that none shall be taken for any crime whatsoever by any person or Court whatsoever unless it be by Indictment or Presentment of good and lawful people of the same neighbourhood where such Deeds be done in due manner or by Process made by Writ original at the Common Law and that none be put out of his franchise or freehold unless he be duly brought in to answer and adjudged of the same according to the course of the law and if any thing be done by any persons or courts whatsoever against the tenour of the same it shall be void in law and holden for error which two last Statutes of the Petition of Right and the Act that abolâ—sheth the Star-chamber doth expresly and nominally ratifie and confirme the Statute of the 42. of Edward the third which according to the peoples true fundamental law of England makes void and null all Acts of Parliament Ordinances Orders Judgements and Decrees whatsoever made by any power whatsoever that are contrary unto or in diminution of the free people of Englands foresaid liberties and freedoms of due Process of Law And the Petition of Right expresly saith No man whatsoever shall be any wayes punished especially in criminal cases but according to the laws and Statutes already established in the land And those also by the said Petition of Right and the Statute that abolished the Star-chamber are precisely declared to be according to our good old native fundamental rights and liberties or else they are ipso facto null and void in law this very thing or the securing thereof alone being the principal and chief declared cause of all the late Parliaments and present armies bloodshed and wars with the late King and his son and without the inviolable preservation of these our fundamental laws and liberties it is impossible that any in the Army from the highest to the lowest in the least can acquit themselves of being justly esteemed both before God and just men real and wilful murderers of all those persons that they have staine in the late civil wars and if so wo unto them when God makes inquisition for innocent blood Neither indeed is he the now prisoner at the Bar guilty of any such high crimes and misdemeanors as is expressed in the said Act neither ever was he the now prisoner at the Bar in the least duely and legally banished and fined by the said Act nor yet is a Felon nor guilty of felony in no manner of respect whatsoever as by the said Inditement now read unto him is supposed neither can he rationally
the third the usurper and by reason of the extraordinary many troubles of his reign and the ignorant Regal time in which he lived considered he had a thousand times more grounds to be arbitrary and discretionary in his proceedings with the people of England then the late decapitated Parliament had yet he summoned a free Parliament who sate peaceably and quietly without the force or purging of souldiers and after that several Juries at Assizes and Sessions by corruption and savour had refused to finde persons that were judicially proved guilty before them of breach of penal laws as in full and free Parliament by King Lords and Commons is avowedly declared an Act of Parliament recorded in the fourth part of Cooks Institutes fol. 40. 41. in the 11. of Hen. 7. chap. 3. was passed by King Lords and Commons in full and free Parliament to enable the Justices of Assize in open Sessions to be holden before them and the Justices of the Peace in each County in England upon information for the King before them to be made to have full power and authority by their discretion without tryals by Juries to hear and determine all offences and contempts committed against penal laws in all which arbitrary or discretional proceedings murther treason and felony was excepted out of their cognizance or jurisdiction as also all other offences whereby any person should lose life or member or lands goods or chattels to the party complaining By pretext of which Statute saith the Lord Cook in his last recited folio Empson and Dudley privy Councellors and Justices of Peace to Henry the seventh did commit upon the subject insufferable pressures and oppressions which yet at the highest was but the taking away some small part of the persons estates from them that they condemned And therefore this Statute was justly soon after the decease of Henry the seventh repealed at the next Parliament after his decease by the Statute of the 1 Hen. 8. cha 6. A good caveat saith he to Parliaments to leave all causes to be measured by the golden and streight met-wand of the law and not to the uncertaine and crooked cord of disrcetion for it is not almost credible to foresee saith he when any maxime or fundamental law of this realm is altered as elsewhere in the fourth part of Lord Cooks Reports hath been observed what dangerous inconveniences do follow which most expresly appeareth by this most unjust and strange Act of 11 H. 7. for hereby not only Empson and Dudley themselves but such Justices of Peace corrupt men as they caused to be authorized committed most grievous and heavy oppressions and exactions grinding the face of the poor subjects by penal laws be they never so obsolete or unfit for the time by information onely without any presentment or trial by Jury being the ancient birthright of the subject but to hear and determine the same by their discretion inflicting such penalty as the Statutes not repealed imposed these and other like actions and oppressions by or by the means of Empson and Dudley and their instruments brought infinite treasures to the Kings Coffers whereof the Kâ—ng himself in the end with great grief and compunction repenced as in another place we have observed This Statute of 11. H. 7. We have recited and shewed the just inconveniences thereof to the end that the lâ—ke should never hereafter be attempted in any court of Parlâ—ament and that others might avoid the fearful end of those two time-servers Empâ—on and Dudley Qui corum vâ—stigia insistant corum exitus perâ—oâ— rescan that is those that follow their footsteps may fear the same destruction that they had whose end in the third part of the Institutes fol. 208. and the fourth part fol. 198 199. may be seen was severally to be Indicted at common law whose Indictments is there to be read and convicted and executed as traitors for subvertâ—ng the fundamental laws and liberties of England viz. trials by Juries which the Conquest of the Româ—nâ— Saxons Dâ—nâ—â— or Normans could never blot out of the Kalender of English mens fundamental liberties but hath from time to time with the infinite hazards of their lives bloods been preserved as the choicest of their Jewels and as one of their chiefest fundamental rights of whom the said L. Cook in his exposition of the 29 Ch. of Magnâ— Charta in his 2 part Instit fol. 51. upon the words of lex terrae or the law of the land where he plentifully shews that no Englishman whatsoever ought for any Crime whatsoever in any Court whatsoever by any power or authority whatsoever to be tryed but by juries and due process of law as is before shewed expresly saith yet against the ancient fundamental lasâ— in the face thereof I finde an Act of Parliament made saith he that as well justices of Assize as Justices of Peace without any finding or presenâ—ment by the Verdict of twelve men upon a bare information for the King before them made should have full power and authority by their discretions to hear and determine all offences and contempts committed or done by any person or persons against the forme ordinance and effect of any Statute made and not repealâ—d c. by colour of which Act shaking this fundamental law it is not credâ—ble what horrible oppressions and exaction to the undoing infinite numbers of people were committed by Sir Richard Empson knight and Edmund Dudley being Justices of the Peace throughout England upon this unjust and injurious Act as commonly in like cases â—t falleth out a new office was erected and they made masters of the Kings forfeitures But at the Parliament holden â—n the first yeer of Henry the eighth This Act of the 11. of Hâ—nry the seventh is rejected and made void and repeater and the reason thereof is yeelded for that by force of the said act it was manifestly â—nown that many sinister and crafty feigned forged informations had been pursued agaâ—nst divers of the Kâ—ngs subjects to their great damage and wrongâ—ul vexations and ill success hereoâ— and the fearful ends of the two oppressors should deter others from câ—mâ—â—ttâ—ng the lâ—ke and should admonish Parliaments that in stead of the ordinary and precious trial per legem terrae by the law of the land they bring not in absolute an partial trial by discretion And in the fourth part of his Institutes folio 37. he expresly saith That he findes an Attainder by Parliament of a subject viz. Thomas Cromwel then Earle of Essex of high treason who was committed to the Tower and thereby forth coming to be heard and yet was never called to answer in any of the Houses of Parliament Of the manner of which proceedings he thus saith Ausâ—â—a 〈◊〉 si potest si non ut cunque silontiam legat That is let the Parlâ—aments crime be buried in oblivion if it be possible and if not nevertheless yet let it give place to silence for the present for saith he The
have not been conquered and no doubt but the Conquerour may give what Laws he please to those that are conquered but if the succeeding pacâ—s and Agreements do not limit and restraine that right what people can be secure England hath been conquered and Wales hath been conquered and by this reason will be in little better case then Ireland if the King by the right of a Conquerour give Lawes to his people shall not the people by the same reason be restored to the right of the Conquered to recover their liberty if they can what can be more hurtfull more pernicious to both then such propositions as these which must needs be most truely averred have no end of blood shed and murder and all the miseries besides that tongue can express or heart can imagine And it is impossible that ever the honest people of England should intrust as in some measure they have done the General and his Officers with the custody and preservation of their lives liberties freedoms and proprieties with any the least intention that when they had subdued their common enemies they should subdue their fundamental laws and rights for the preservation of which the only contest with the common enemy was begun and then give them a law flowing from their uncertain discretionary wills and pleasures Sure I am that righteous and just David calls those sons of Belial and wicked men that would go about to deprive those that stayed with the stuff of an equal share in the Conquest even with those that went out to fight 1 Sam. 30.21 22 23 24 25. c. And righteous and just Abraham out of his affection to his brother Lot ventured his life by fore of Arms to redeem him from his captivity and with him redeemed the people of the King of Sodom and their goods after they were overthrown in pitcht battel after which valiant and friendly service the King of Sodom intreated of Abraham to give him the persons and to take the goods to himself unto which the righteous man answers although the King of Sodom was an alâ—en and stranger to him and all his and all that he had taken was by our present Christian Souldiers Marshal-law good priz I have lift up my hand to the Lord as the present General hath often done and solemnly protested and sworn to make this Nation free and happy the most high God the possessor of heaven and earth that I will not take from a thread even to a shoo-latchet and that I will not take any thing that is thine lest thou shouldest say I have made Abraham rich And honest and Godly not in word and shew but â—n real substantial actions Nehemiah when the cryes of the poor Jews and their wives were very great by reason of the sword and violence of their adversaries and the grinding oppression of their Nobles and great men Just Nehemiah was very angry when he heard the poor peoples cry and rebuked the Nobles and Rulers for their oppression and set a great assembly against them and said unto them It is not good that you do ought you not to walk in the fear of our God because of the reproach of the heathen our enemies and made them restore to the poor people their lands their Vineyards their Olive yards and their houses c. that they had taken by usury and oppression from them in the day of their straites and calamity and so far was that just and righteous soul in the day of their Warfare and hot contest with their enemies for their liberties and freedomes from going from a poor and mean condition to be worth many thousands a year amongst them and to exercise more then princely jurisdiction and Lordship over them by his will and pleasures in robbing them of all their ancient native fundamental rights and freedomes that he did the quite contrary for saith he when the time came I was appointed to be their Governour in the land of Judah from the 20 year to the 32 year of Artaxerxes the King that is twelve years I and my Brethren have not eat the bread of the Governours but the former Governours that had been before me were chargeable unto the people and had taken of them bread and wine besides forty Shekels of Silver yea even their servants bare rule over the people but so did not I because of the fear of God yea also I continued in the work of this Wall neither bought we any land and all my servants were gathered theither unto the Work Moreover there were at my Table 150 of the Jewes and Rulers besides those that came unto us from among the heathen that are about us yet for all this required not I the bread or the Govenour because the bondage was heavy upon the people his brethren and country-men and therefore in the cleanness of his heart and the integrity of his soul he cryes out Think upon me my God for good according to all that I have done for this people And sure I am that worthy man in his age Mr. John Pym in his foresaid excellent speeches page 22. saith That such Treasons as the subversion of fundamental laws violating of liberties can never be good or justifiable by any circumstance or occasion and therefore by how much the more a trust is upon a man or generation of men by so much the more it makes their crime in this kinde to be the more capital and haynous Therefore to conclude though John Lilburn the prisoner at the Bar could and might urge many things more against the Parliaments legallest power in all manner of special acts or acts of Attainders the arguments against which are excellently set down in that rational and highly to be commended plea in law intituled The laws subversion pag. 32. or Sir John Maynards case truely stated in 1648. by John Houlden Gentleman and to say that a freeman of England by Law may be tryed by a Bill of Attainder is irrational and unjust for such a proceeding is no tryal but rather a sentence and it is no act of jurisdiction but an act of the legislative power but no sentence can be past against an offender but by some fore-declared visible known rule or law of which the supposed offender either actually had or might have had knowledge The Law saith invincible ignorance of the Law excuseth a toto from the whole offence but surely then no judgement can be passed justly upon any man by a law that was not in being when his supposed offence was committed in that case though the fact were in it self evil yet it were not judicially evil if no law in the Nation were extent against it and so by consequence a law to punish a person in that case were a law to destroy an innocent man and whosoever shall duely weâ—gh the law-giving power shall finde that the essential properties of that power is to respect things or actions that are to come not by-past and their no jurisdictions in
imagine that by the Parliament that is mentioned in the said Act of the 30 of January 1651. for banishing one Lieutenant-Colonel John Lilburn is in the least meant the late Parliament of the Commonwealth of England sitting at Westminster especially because it is not so therein exprest who had taken many Oaths and past abundance of Declarations and particularly that of the 9 of February 1648. inviolably to maintain the Fundamental Laws of the Land in reference to the Peoples lives liberties and properties with all things incident appertaining and belonging thereunto But that rather it was some ignorant sottish French Parliament sitting at Paris or elsewhere in France that understand nothing of the Laws Liberties and Freedoms of England or that it was the malignant Cavalier Parliament lately sitting at Oxford in the Kings Quarters there post-dating their Act and thereby endeavouring by the said Act to create such a president as in the consequence of it would destroy all the Laws Liberties and Properties of the free-born people of England and thereby absolutely set up the Kings will and prerogative above Law the bare endeavouring of which in the Earl of Strafford hath been long since adjudged high treason Or in the next place it the authors of the said monstrous and illegal Act of Banishment be neither the ignorant Parliament of Paris nor the Cavalier Parliament of Oxford Then of necessity in the third place it cannot in charity and reason but be judged that the said Act of Banishment was drawn up by Mr. Scobel the Parliaments Clerk Mr. Hill their Chayr-man and Mr. Prideaux their Attorney and Post-master-general when they were all riding post and so jumbled or shaken with fast riding that it was impossible for them to hold their pens to write right and true and when they had framed it then by some cunning artifice or inchantment of theirs they preferred it to the said Parliament who in charity and common reason must needs be judged to pass it when they were three quarters asleep against some silly natural fool called Lieutenant-Colonel John Lilburn that could not be imagined ever in his life to have read any thing of Law or Reason it being impossible in the least in reason to be conceived that the late Supreme Authority the Parliament of the Commonwealth of England sitting at Westminster being onely by their own Declarations but trusted to provide for the peoples weal but not in the least for their wo would ever in their right wits or not being three quarters asleep pass such an Act of Parliament against John Lilburn now prisoner at the Bar who hath much read the Law and very well understands the Fundamental Liberties of England and hath hazardously adventured his life a thousand cimes for the inviolable preserving of them because such an Act of Parliament as the foresaid Act of Parliament is in the first place an Act of Parliament against common right common equity and common reason and therefore is void and null in Law and ought not to be executed as appears by these following authorities viz. 1 part of Dr. Bonham's Case fol. 118. and the 8 of Edw. 3. fol. 3 30 33. F. Cessavit 32 27 H. G. Annuity 41. and 1 Eliz. Dyer 113. and 1 part Cook 's Institutes lib. 2. Chap. 11. Sect. 209. fol. 140. and 4 Edw. 4.12 and 12 Edw. 4.18 and 1 H. 7.12 13. and Plowd Com. fol. 369. and Judge Jenkins learned works in the Law printed for J. Giles 1648. but particularly by his Discourse of Long Parliaments p. 139 140. and see also Mr. W. Prynne's notable book of the 16 of June 1649. called A Legal Vindication of the Liberties of England against illegal Taxes p. 11 12 13 c. But especially see a book intituled The Legal Fundamental Liberties of England revived asserted and vindicated printed and reprinted in the yeer 1649 page 54 55 56 57. yea an Act of Parliament that a man shall be judge in his own case is a void Act in law as appears in Hubberts Case fol. 120. and by the 8 part of Cook 's Reports in Dr. Bonham's Case and by the present Armies own Book of Declarations p. 35 52 54 59 60 61 63 132 141 142 143 144. yea saith that learned Oracle of the Law of England Sir Edw. Cook in the 4 part of his Institutes fol. 330. Where Reason ceaseth there the Law ceaseth for seeing Reason is the very life and spirit of the Law it self the Law-giver is not to be esteemed to respect that which hath no reason although the generality of the words at the first sight or after the letter seem otherwise And saith the said learned Author in his first part Institutes fol. 140. All Customs and Prescriptions Acts of Parliament Laws and Judgements that be against Reason are void and null in themselves And saith the Armies Sollicitor-General John Cook in the late Kings Case stated p. 23. That by the law of England any Act or Agreement against the Laws of God and Nature is a meer nullity for as a man hath no hand in making the Laws of God and Nature no more hath he power to marre or alter them And he cites the Earl of Leicester's adjudged Case for a proof And in page 20 he also saith that all the Judges in England cannot make one Case to be Law that is not Reason no more then they can prove an hair to be white that is black which if they should so declare or adjudge it is a meer nullity for Law saith he must be Reason adjudged And therefore saith he page 8. That man or men that rules by lust and not by law is or are creatures that were never of Gods making nor of Gods approbation but his permission and though such men be said to be gods on earth 't is in no other sense then the devil is called the god of this world And excellent to this very purpose is that ancient Law-book called The Doctor and Student who in his second Chapter pag. 4. expresly sayth Against the law of Nature which he calls the Law of Reason Prescription Statute or Customs may not prevail and if any be brought in against it they be no Prescriptions Statutes nor Customs but things void and against justice And what this law of Nature or Reason is he excellently sheweth in the latter end of the fourth page and the beginning of the fifth and therefore in pag. 7. he expresty saith That to every good Law is required these properties viz. That it be honest right wise possible in it self and after the custom of the Country convenient for the place and time necessary profitable and also manifest that it be not captious by any dark sentence nor mixt with any private wealth but all made for the common good for saith he every mans law must be consonant to the Law of God otherwise they are not righteous nor obligatory All which Judgements or Cases in Law in the equitable and rational part of
them are fully confirmed by that commonly reputed able Lawyer Serjeant John Bradshaw late Lord President of the high Court of Justice against King Charles who in his large Speech to him and against him printed in the second Edition of his Tryal and sold by Peter Cole Francis Tyton and John Playford 1650. from p. 52. to 70. And amongst other passages in p. 55. he hath this That the end of having Kings or any other Governours it is for the enjoying of justice that is the end Now Sir saith he if so be the King will go contrary to that end or any other Governour will go contrary to the end of his Government he must understand that he is but an Officer in trust and he or they ought to discharge that trust and they are to take order for the animadversion and punishment of such an offending Governour And in p. 53. he tells the King That as the Law is his superiour so also he tells him there is something that is superiour to the Law and that is indeed the parent or author of the Law and that is the people of England for Sir as they are those that at the first as other Countries have done did chuse to themselves this form of Government even for Justice sake that justice might be administred that peace might be preserved so that Sir saith he to the King the people gave Laws to Governours according to which they should govern and if those Laws should have proved inconvenient or prejudicial to the Publike the People had a power in them and reserved to themselves to alter them as they shall see cause Secondly such an Act of Parliament as the aforesaid Act of Banishment is not onely against common right common equity and common reason but it is absolutely destructive to the very ends of the peoples Trust conferred upon the Parliament and so the highest of treasons that can be committed And that it is destructive to the ends of the peoples Trust clearly appears by the Statutes of 4 Edw. 3. cap. 14 and 16 Edw. 3.10 which expresly saith that a Parliament at least shall be holden once every yeer and that for the maintenance of the peoples Laws and Liberties and the redress of divers mischiefs and grievances that daily happen And sutable to these things are the ends contained in the Writs that summon them and the intentions of those that chuse the Members and send them And sutable to this is the end of the Parliaments sitting as the present General and his Army in many of their remarkable Declarations have fully declared against the late 11 Members and their accomplices yea and forced the late Parliament to raze out of their books and Records many wicked and unjust things as they judged them to be after the Parliament had solemnly past them as Votes Orders Judgements and Acts yea and endeavoured very earnestly to hang divers of those as Traytors that had executed them as particularly Alderman Adams Alderman Langham Alderman Bunce with the Lord Maior Sir John Gayre and divers others But the greatest grievances and mischiefs in the world are by the aforesaid mischievous and unjust Banishing Act established ratified and confirmed for by it a man is condemned to lose his liberty and estate and the comforts of this life and that without any the least crime committed or accusation exhibited or legal Processes issued out to summon the party to make any defence in the world or ever calling or permitting him to speak one word for himself which is an Act or proceeding against the light and law of Nature Reason the Law of God against the law of Honour Conscience and common Honesty yea a dealing worse with the party then ever the cruel Jews did with Christ or then the bloody butchers Bishop Gardner and Bonner did with the rosted Martyrs in Queen Mary's days who always suffered them to have due processes of Law and to know and see their accusers and to have free liberty to speak for themselves and never condemned them but for transgressing a known and declared law in being Yea also dealing worse with the party then ever the bloody Gunpowder-Traytors were dealt with by King James who always allowed them fair tryals in law from the beginning to the end at the Bar of Justice for their lives Yea it is a worse dealing with the party then ever the Parliament themselves dealt with the bloodiest and most massacring Traytors that ever were in Arms against them to cut their throats Yea the forementioned practice of the foresaid most illegal and unrighteous Act of Banishment is an Act and proceedings in the highest subversion of the Fundamental Law and Liberty of England that can be invented or imagined and by consequence if it may without the highest offence or soloecism in Law be supposed that his Excellencie the Lord Gen. Cromwel Major-Gen Harison and the rest of the Members of the late Supreme Authority of the Parliament of the Commonwealth of England sitting at Westm had any real finger in it or were actors of it they may and ought all of them with all the rest under them that have executed any part of the aforesaid unjust injurious illegal Act of Parliament to be apprehended indicted and proceeded against at the Common Law as Traytors and subverters of the Fundamental Laws Liberties and Freedoms of the free-born people of England as that learned man in the Laws of England Sir Edward Cook in the second third and fourth Parts of his Institutes all three of which are published by two special Orders of the late House of Commons in anno 1641. for good Laws doth declare and prove was dealt with by Empson and Dudley in less cases then the fore-recited unjust act of Banishment and of which severe punishments those Arbitrary and discretionary Judges viz. Trisilian Fulthrop Belknap Care Holt Burge and Lockton in Richard the seconds time sufficiently tasted of as also their arbitrary Accomplices the then Lord Major of London Sir Simon Burley Sir William Ellinham Sir John Salisbury Sir Thomas Trevit Sir James Barnis and Sir Nicholas Dodgworth some of whom were destroyed and hanged for setting their hands to Judgements in subversion of the peoples fundamental Law and Liberties in advancing the Kings will above the same yea one of them was banished therefore although he had a Dagger held unto his very brest to compel him to set his hand thereto But the two first mentioned persons cases being the most remarkable the prisoner at the Bar shall only at present inlarge upon theirs Which Case of Empson and Dudley was thus At the Parliament holden by King Lords and Commons in Henry the sevenths time who was an undoubted lawful king of England and by his marriage of his wife the Lady Elizabeth heir apparent to the House of York as himself was to the house of Lancaster had united the two claimes of Lancaster and York in himself and in a pitcht battel had slaine King Richard
the bottom of the whole illegal proceedings agaâ—nst him will evidenâ—ly appear 2. The prisoner at the bar's tranâ—gression at most is but a supposed or a real scandal of one Member of Parliament viz. Sir Arthur Haslerig in which at most he was but of Counsel for Mr. Prâ—mate upon a Petitionary Appeal which Primate at the open Bar of the Parliament freed John Lilburne the now prisoner at the Bar from drawing his said Petition at which the Parliament took the offence and at whose Bar he avowedly layd the drawâ—ng of it upon another and yet the prisoner at the Bar must be thought worthy to be banished and robbed by Sir Arthur Hazlerig of all his estate that at the most was but an accessary to a scandal and Primate the principal that owned the Petition for his and justified the printing of it by his own order hath no such punishment at all inflicted upon him nâ— nor yet his Counâ—el that he avowed drew it But the crime of the said Oliver Cromwel Lord General and Major-Gen Harison in forcibly dâ—ssolving the Parliament is not onely a scandalizing of one Member of Parliament but of all the Members thereof as a pack of Rogues and traytors to their trust and thereby fit for nothing but to be knockt on the head by the enraged people where-ever they meet them and as unsavoury salt that is good for nothing but to be pluckt our by the ears and pluckt up by the roots and thrown to the dunghil 3. The Parliaments Laws were either good and just or they were not If good and just why were they that made them pluckt up by the roots and dissolved without their free consents and that by their hired servants that had no power either in Law or from the people so to do and upon whom out of the peoples moneys they have bestowed many thousand pounds gratuities If they were wicked and unjust why is the basest and vilest of them endeavoured to be executed upon the prisoner at the Bar for supposed Felony and that principally by the means of those that both by the letter and equity of the said Parliaments Laws are guilty of highest of treasons in dissolving the Parliament by force of Arms without their own free consents and who have been and yet are the only principal prosecutors of me the prisoner at the Bar for his life for returning into the land of his Nativity against the Fundamental Laws Liberties which in all his days he never committed the least transgression after he was forced by reason of Sir Arthur Hazlerig's robbing him of all his estate for divers months together to borrow all the money that bought him bread and after he had continued about a yeer a half in constant danger of his life of being murdered beyond the Seas by the hands of the mad or ranting Cavaliers by the cunning artifice and designes of the pensioned Agents of some of the principallest of those that most in Parliament studied his Banishment yet in which Act that they pretend to banish one Lieut. Col. John Lilburn by there is no crime of Law at all in Law layd unto the sayd Lieut. Col. John Lilburn's charge generals being no crimes in law nor signifie nothing as fully appears by the Lord Cook 's second part of his Institutes fol. 52 315 318 590 591 615 616. and third part fol. 12 13 14. and fourth part fol. 39 333 334. as appears by the Act it self which thus verbatim followeth An Act for the execution of a Judgement given in Parliament against Lieut. Col. JOHN LILBVRNE WHereas upon the fifteenth day of January in the yeer of our Lord One thousand six hundred fifty one Judgement was given in Parliament against the said Lieut. Col. John Lilburn for high Crimes and Misdemeanours by him committed relating to a false malicious and scandalous Petition heretofore presented to the Parliament by one Josiah Primate of London Leather seller as by the due proceedings had upon the said Petition and the Judgement thereupon given at large appeareth Be it therefore Enacted by this present Parliament and by the authority of the same That the Fine of three thousand pounds imposed upon the said John Lilburn to the use of the Commonwealth by the Judgement aforesaid shall be forthwith levied by due Proces of Law to the use of the commonwealth accordingly And be it further enacted That the sum of two thousand pounds imposed by the said Judgement upon the said John Lilburn to be paid to James Russel Edw. Winslow William Molins and Arthur Squib in the said Judgement named that is to say to each of them five hundred pounds for their damages shall be forthwith paid accordingly And that the said Sir Arthur Hazlerig James Russel Edw. Winslow William Molins and Arthur Squib their Executors and Administrators shall have the like remedy and proceedings at Law respectively against the said John Lilburn his Heirs Executors Administrators and Assignes for the recovery of the said respective sums so given to them by the said Judgment as if the said respective sums had been due by several Recognizances in the nature of a Statute-staple acknowledged unto them severally by the said John Lilburn upon the said 15 day of January 1651. And be it likewise enacted by the authority aforesaid that the said John Lilburn shall within twenty days to be accounted from the said fifteenth day of January 1651. depart out of England Scotland Ireland and the Islands Territories or Dominions thereof And in case the said John Lilburn at any time after the expiration of the said twenty days to be accounted as aforesaid shall be found or shall be remaining within England Scotland Ireland or within any of the Islands Territories or Dominions thereof the said John Lilburn shall be and is hereby adjudged a Felon and shall be executed as a Felon without benefit of Clergie And it is lastly enacted by the Authority aforesaid 〈◊〉 all and 〈…〉 and persons who shall after the expiration of the said twenty days accordingly relieve harbour or conceal the said John Lilburn he being in England Scotland or Ireland or any of the Territories Islands or Dominions thereof shall be hereby adjudged accessary of Felony after the fact And all Judges Justices Maiors Bayliffs Sheriffs and all other Officers as well Military as Civil in their respective places are hereby required to be aiding and assistâ—ng in apprehending the said John Lilburn 1651. Ordered by the Parliament That this Act be forthwith printed and published Hen. Scobel Cleric Parliamenti Fourthly the prisoner at the Bar's return into England tends not in the least to the disturbance of the publike peace quietness or tranquillity of the Nation nor to the destruction and overthrow of all the Peoples Fundamental liberties and freedoms and therefore no reasons at all can be drawn from publike utility or profit to try me John Lilburn now prisoner at the bar for his life as a Felon upon the unjust letter of a void
Verbatim An Act Declaring what offences shall be adjudged Treason WHereas the Parliament hath abolished the the Kingly Office in England and Ireland and in the Dominions and Territories thereunto belonging and hath resolved and declared that the people shall for the future be governâ—d by its own Representatives or national meetings in councel chosen and intrusted by them for that purpose hath seâ—tled the Government in the way of a Commonwealth and free State without King or House of Lords Be it Enacted by this present Parliament and by the Authority of the same That if any person shall maliciously or advisedly publish by writing printing or openly declaring That the said Government is tyrannical usurped or unlawful or that the Commons in Parliament assembled are not the Supream Authority of this Nation or shall plot contrive or indeavor oâ— stir up or raise force against the present government oâ— for the subversion or alteration of the sâ—mâ— and shall declare the same by any oâ—â—n deâ—d that then every such ofence shal be taken deemed and adjudged by the Authority of this Parliament to bâ— high treason And whereas the Keepers of the liberties of England and the councel of State construted and â—o be fâ—om time to time constiâ—utâ—â— by Aâ—â—uoâ—…y of Parliamâ—nt are to be under the said Râ—presentatives in Parliament â—n â—uâ—… for the maâ—nâ—…ce of the said government with several powers and Authorities limited given and appoâ—ntâ—d unto thâ—m by the Parliament Be 〈◊〉 likewise Enacted by the authority aforesaid that â—f any person shall maliciously and advisedly â—o or indeavor the subversion of the said Keepers of the liberties of England or the Councâ—l of State and the same shall declare by any opâ—n Deâ—d oâ— shall move any person oâ— pâ—â—sons foâ— the doâ—ng therâ—of or stir up the people to rise against them or eithâ—r of them theâ—… or eiâ—her of 〈◊〉 auâ—horities That then every sum offâ—ncâ— and offâ—nces shall be takâ—n dâ—â—med and a clored to be high treason And wâ—â—as the Parliamâ—nâ— for their just and lawful defâ—nce hath raised levied the Army and foâ—â—es now under the command of Thomas Lord Fairfax and are aâ— present necessitated by reason of the manifold distractions withâ—n this commonwealth and invasions threatned from abroad â—o continue the same which under God must be the instrumental means of preserving the well-afflicted pâ—oplâ— of this Naâ—â—on in peace and safeâ—y Be it further Enacted by the autâ—oâ—iâ—y aforesaid that if any person â—o being an Officer Souldier oâ— Member of the Army shall â—o contrive oâ— indeavour to stir up any mutiny in the said Army or withdraw any Souldiers oâ— Officers from their obedience to their superâ—ouâ— Officers oâ— from the presâ—nt Governmâ—nt as afoâ—â—said oâ— shall procure invite and oâ— assist any foâ—raigners or strangers to invade England oâ— Ireland or shall adhere â—o any forces raised by the enemies of the Parliamenâ— or Common wealth oâ— keepers of the Liberty of England Or if any person shall counterfeit the Great Seal of England for the time being used and appointed by authority of Parliament That thâ—n every â—uch offence and offâ—nces shall be taken deemed and declared by the authority of this Parliamâ—nt to be high-treason and every such person shall suffer pains of death and also forfeit unâ—o the Keepers of the Liberâ—y of England to and for the use of the Commonwealth all and singular his and their lands tenâ—mâ—nâ—s and hereditament goods and chattels as in câ—sâ— of high-treason hath been used by the Laws and Statutes of â—â—is land to be forfeit and lost Provided always that no persons shall be indicted and arraignâ—d for any of the offâ—nces mentioned in this Act unless such offenders shall be indicted or prosecuted for the same within one yeer after the offence committed Die Lunae 14 Maii 1649. Ordered by the Parliament That this Act be forthwith printed and published Hen. Scobel Cleric Parliamenti London Printed by Edw. Husband John Field Printers to the Parl. of England 1649 And the said John Lilburn now prisoner at the Bar for further Plea saith that for supposed violating those two last fore-mentioned Acts of Parliament and that but for supposed words and for the supposed compâ—ling writing and caused to be printed Arguments founded and grounded upon the known and declared fundamental laws of England received principles of Reason and the Armies own prâ—nted and publâ—shed Declarations he the said John Lilburn now prisoner at the bar was arraâ—gned and â—ndicted as a Traytor for his lite at Guild-hall London in October 1649. and that principally by the instâ—gation and means of his Excellencie the present Lord General Cromwel which Tryal was with that violence and fury that the said prisoner at the Bar was absolutely denyed the declared benefit of the known laws of England viz. the help of Counsel learned in the Law and a copie of his Charge and Indictment which were not denied but granted to the Lord Mocquâ—â— that grand â—â—shâ—â—be and those Arch-traytâ—rs as the yeare commonly called Scrassoâ—c Canâ—â—â—bury Hamilton and Capâ—l c. which also was granted to the prisoner at Bar as his right by Law when he was prâ—â—â—ner aâ— Oâ—foâ—â— and aâ—â—agned by judge Heart c. for his lâ—â— as a traytor So that the said John Lilburn now prisoner at the bar considering the several penalties declared to be due to any person or persons whatsoever that by force or otherwise should but endeavour to dissolve the late Parliament or their Councel of State â—e cannot either in Reason or Law see or apprehend which way his Excellency the said Lord General Cromwâ—l and Major General Haâ—son c. if they continue and persevere as they have begun to execute the said unjust and injurious Act of Parliament upon the said Joâ—n Lilbuâ—n prisoner at the Bar which is one of the most wickedst and unjust that ever the Parliament in their lives made and of the highest and most notorious acts of their breach of trust that ever they committed as is before fully proved can â—n the least either before God or men acquit themselves of being guilty of the highest of treason both by the letter and equity of the two last fore-mentioned Laws lately made in part by themselves but principally by their instigation in forcibly dissolving the late Parliament against their own voluntary wills and consents Therefore John Lilburn the now prisoner at the bar for further plea saith That it is most just equitable and reasonable to indict arraign condemn and execute the foresaid declared Parliament Traytors Oliveâ— Cromwel Esquire Captain General and Mr. Thomas Harison commonly called Major-General Harison before the prisoner at the bar be indicted arraigned condemned and executed for being a supposed Parliament felon especially considering their tranâ—gressions is a fact committed after the declaring printing and divulging of a visible and plain Law and aâ— the prisoner at the Bar's supposed crime is for a fact done before there was a Law in being as in searching into