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
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
Act of Parliament But as for the said Generals and the said Major-General Harisons dissolving the late Parliament by force against their own consents and thereby against several Acts of Parliament afore mentioned partly of their own making committing high-treason against the apparent letter of a known printed and declared Law before their fact committed out of which evil action as it is in it self simply considered though it be granted that that God that can and hath brought light out of darkness and order out of confusion and good out of evil may out of it by his wisdom power and omnipotencie bring abundance of good to this poor nation of England yet already it hath visibly produced this grand mischief and evil viz. to give the said General a colourable pretence of a Necessity of his own making and creating to assume unto himself all the Civil powers in the Nation into his own hands and thereby not onely to make slaves if he please of all his own private souldiers in subjecting them to Tryals for their lives by Military or arbitrary Discipline in times of peace when all the Courts of Justice for administring the Law are or ought to be open which is expresly against the Petition of Right and the declared end wherefore the Wars were engaged in against the late King but also of the free people of England that have fought as heartily and faithfully for the preservation of their Liberties and Freedoms as himself who have already thereby lost two of the chiefest of their fundamental rights and freedoms viz. First to have Taxes layd upon them by the General with the advice of his Military Officers all of whom at most are but the peoples hired and payd servants to kill the Weasels and Polecats that would destroy their Liberties which is not onely contrary to the express tenour of that most excellent Law as the late Parliament in their remarkable Declaration of March 17. 1648. calls it of the Petition of Right which expresly sayth That no Taxes Ayds or Contributions whatever shall by any person or persons or any Authority whatsoever be layd or levyrd upon the people but by common consent of their chosen Deputies or Trustees in Parliament assâ—mbled for that end See also the Lord Cooks 4 part Institutes chap. High Court of Parliament fol. 14 34. and by the Statute made in the late Parliament in the 17 yeer being anno 1641 of the late King intituled An Act for declaring unlawful and void the late proceedings touching Ship money The Judgement of the Judges in that case is declared null and void and against the right of Proprieties although their judgements were grounded upon these plausible Questions viz. That when the good and safety of the Kingdom in general is concerned and the whole Kingdom in danger Whether the King might by writ under the Great Seal of England command all the Subjects of his Kingdom at their charge to provide and furnish such number of Ships with Men Victuals and Munition and for such a time as the King should think fit for the defence and safeguard of the kingdom from such peril and danger and Whether by Law the King might compel the doing thereof in case of refusal or â—â—fâ—actariâ—ss And whether that the King who was then a far more legal Magistrate then the Lord General Cromwel now is were noâ— the solâ— judge both of the danger and wiâ—â—n and â—ow the same is to be prevented and avoided According to which grounds and reasons all the justices of the said Courts of Kâ—ngs Bench and Common pleas and the said Barons of the Exchequer having been formerly conâ—ulâ—â—d with by his Majesties command had set their hands to an extrajudicial Opinion expressed to the same purpose That he might and yet notwithstanding all this thus decreed and adjudged by all the judges all such Ship-writes and all proceedings thereupon are by King Lords and Commons in full legal and free Parliament declared that they were and are contrary and against the Laws and Statutes of this Realm and the Petition of Right made in the third yeer of the Reign of his Majesty that then was And it is there further declared and enacted by the Authority aforesaid That all and every the particulars prayed or desired in the said Petition of Right shall from henceforth be put in execution accordingly and shall be firmly and strictly holden and observed as in the same Petition they are prayed and expressed And that all the said Judgements and Proceedings about the said Ship money be vacated and cancelled One of the makers of which Law was the said Oliver Cromwel now Lord General and also one of the impeachers of the said Ship money-Judges of high-treason for arbitrary subverters of the free people of England's fundamental Laws Liberties and Proprieties Secondly the General with whom of his Officers by his will he is pleased to joyn with him hath not onely by their late forcible dissolving of the late Parliament assumed the whole Civil power of the Nation into his own hands by means of which already by his Declaration with the advice of his Officeâ—s of the 9 of June 1653. he hath arbitrarily layd a Tax of Sixscore thousand pounds per month upon the free people of England by which all their proprieties are confounded and destroyed For by the same Rule that he lays Sixscore thousand pounds Tax a month upon the people he may when he pleaseth lay six Millions a month upon them and so ad infinitum and ingross into his own coffers and hands and his Officers not onely all the peoples treasure but also their whole lands and estates as Joseph did the slavish Egyptians unto Pharaoh Gen 47. but that which is worse he hath not onely there by created a president to destroy all their proprieties but his chusing the people Legislators or Law-makers though it 's possible the men may prove in their actions the justest men in the Nation and denying those that never forfeited their Liberties in their lives that inherent and natural right he hath created a president to destroy their Laws Liberties and Lives and absolutely subject them to his will and mercy which crimes put together are in the eye of the Law the highest Treason that ever I read any transgressor in the Nation charged with ever since it became a Politick Society or Nation and an act that the highest of three Tyrants or Conquerors either under the Romanes Saxons Danes or Normans durst never attempt to put in execution By means of which he hath given away the just and honest Cause betwixt the King and Parliament and done as much as in him hath to make all those murderers that have since the beginning of the late Civil war engaged in the Parliament-quarrel against the late King his actions as evidently as the â—un declaring it was not in the least for the securing of the people 's incroached upon Liberties and Freedoms that he and his accomplices took up Arms
against the King for but to pull him out of his Throne slay him and divide his inheritance amongst him and his accomplices and then to set up his lust will and pleasure as the peoples standing Laws By which apparent and in the face of the â—un avowed practices of his he hath all over the Christian world brought more scorn and contempt upon the zealous profession of God and godliness and all the pretences of strugling for Liberty and Freedom then any one man that ever I read of â—n all the Histories of the world that ever my eyes were fixed upon yea and in the doing of the forementioned things hath given in the face of the sun the absolute and perfect lye to himself and all his many printed Declarations both as he is to be considered as a Parliament-man or as an Officer in Arms. And first consider him as a Parliament-man how many Oaths Covenants Protestations and Engagements hath he formerly taken to maintain the fundamental Laws and Liberties of the people of England and also after he had caused the Parliament to be purged over and over again and again and left none to sit there but those that then pleased his tooth and by their authority taken away the Kings life and altered the form of Government nominally into a Commonwealth or free State did not he and his said friends or Councellors immediately after that publish a solemn Declaration of Febr. 9. 1648. in these very words verbatim A Declaration of the Parliament of England for maintaining the Fundamental Laws of this Nation THe Parliament of England now assembled doth declare That they are fully resolved to maintain and shall and will uphold preserve and keep the fundamental Laws of this Nation for and concerning the preservation of the lives properties and liberties of the people with all things incident thereunto with the alterations touching Kings and House of Lords already resolved in this present Parliament for the good of the people and what shall be further necessary for the perfecting thereof and do require and expect that all Judges Justices Sheriffs and all Officers and ministers of Justice for the time being do administer justice and do proceed in their respective places and Offices accordingly which resolution with the reasons thereof shall be hereafter publâ—shed in a larger Declaration touching the same And it is hereby ordered and appointed that this Declaration shall be forthwith proclaimed in Westminster-Hall and at the Old Exchange and the Judges in their respective Courts at Westminster and at the first sitting thereof are to cause this Declaration to be publikely read And the Sheriffs in their several Counties are to cause this Declaration to be likewise published Die Veneris 9 February 1648. Ordered by the Commons assembled in Parliament That this Declaration be forthwith printed and published and that the Members of this House do take care to disperse the said Declaration into the several Counties with all speed H. Scobel Cler. Parl. D. Com. London Printed by Edward Husbands Which said Declaration was backed also with a large pithy one the 17 of March 1648. which expresseth the grounds and reasons of their late proceedings and setling the present Government in way of a Free State Yea John Lilburn now prisoner at the bar for his further plea saith That by the Act of the late Parliament intituled An Act for the abolishing the Kingly Office in England and Ireland and the Dominions thereunto belonging it is there amongst other things enacted and declared that the Office of a King in this Nation shall not henceforth reside in or be exercised by any one single person And that no person whatsoever shall or may have or hold the office stile dignity power or authority of King of the said Dominions or any of them upon pain of high treason against the Parliament and People of England to all such said persons and to all their aiders assisters comforters or abettors Now whether or no that the said actions of laying Taxes and chusing the people Law makers be not the absolute exercising the office dignity power and authority of the greatest King that ever was in England the prisoner at the Bar submits it to the judgement of the learned Judges of the Law And in the last forementioned Act it is further declared and averred that by the abolishing of the Kingly Office a most happie way is made for this English Nation to return to its just and ancient rights of being governed by its own Representatives or National Meetings in Councel from time to time chosen and intrusted for that purpose by the people And further it is therefore there resolved and declared by the Commons assembled in Parliament That they will put a period to the sitting of this present Parliament and dissolve the same as soon as may possibly stand with the safety of the people that hath betrusted them with what is absolutely necessary for the preserving and upholding the Government now setled in the way of a Common-wealth And that they will carefully provide for the certain meeting chusing sitting of the next and future Representatives with such other circumstances of freedom in choice and equality in distribution of Members to be elected thereunto as shall most conduce to the lasting freedom and good of this Commonwealth And in several other Acts immediately made after the last forementioned Acts and particularly those two Acts of Parliament of the 14 of May and the 17 of June 1649. declaring what offences shall be judged treason it is thus expressed Whereas the Parliament hath abolished 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 governed by its own Representatives or National Meetings in Councel chosen and intrusted by them for that purpose And the Prisoner at the Bar for further plea in the second place saith that his Declarations as a Souldier or Commander to this purpose are so full as more cannot be said and particularly that remarkable Declaration of the 14 of June 1647. printed in the Armies Book of Declar. p. 36. 37. c. in which 37. p. there he positively declares that the setling of the liberties and freedoms and peace of the Nation is the blessing of God then which of all worldly things nothing say they is more dear unto us or more precious in our thoughts we having hitherto thought all our present enjoments whether of live or livelihood or nearest relations a price but sufficient to the puchase of so rich a blessing that we and all the free-borne people of this Nation may sit downe in quiet under our Vines and under the glorious administration of justice and righteousness and in full possession of those fundamental rights and liberties without which we can have little hopes as to humane considerations to enjoy either any comforts of life or so much as life it self but at the
the least as to punish man whatsoever that is not of them for if my crime whatsoever which in part is already touched upon in the former part of the Prisoners Plea at the Bar and also the absolute Irrationality and Illegality of their making a particular law or their settâ—ng up of a particular Court for a particular man which are notably and rationally discussed upon in the seâ—ond Edition of the book Intituled The Picture of the Councel of State pag. 45. and the second Edâ—tion of The Lâ—gal Fundamental Liberties of England recâ—ivâ—d asserted and vindicated pag. 71 72 73. For though a Parliament hath power to levie what mony they judge convenient upon the people by a general tax for common safety of the Nation which Act both by Law and reason they may do yet they cannot in law equity or reason lay all tax upon one two or three men alone and so make them bear all the charges of the publick even so though Parliaments may pass Acts for the good of the People to administer law indifferently to all the people of England alike without exception of persons yet they can neither by law nor reason pass a particular Act of Parliament on purpose to destroy or condemn one two or three individual persons and which shall not in his extent or intention reach any body else because such an Act is against common reason common equity all English men or people being all borne free equally alike and the liberties and freedomes thereof being equally intailed to all alike without exception of persons and therefâ—…â—…e in common reason not to be burthened with an Iron yoak of a particular Act of Parliament when the universalities goeth scotfree in that particular Yea he might urge many Arguments lawful to prove that the Parliament was no Parliament when they past the said Act of Banishment but were long before dissolved and that by their owne consents when the late Parliament took upon them the exercise of regality and the dissolution of Kingship and the house of Lords as it is notaly endeavoured to be proved in the late discourse of the Armies champions as for particularly one licensed to be printed for Giles Calvert and another by Richard Moon at the ssven sters in Pauls Church yard and that it was long since dissolved by that learned man in the Law of England Judge Jenkins renders many reasons in Law to prove it as in his works printed for J. Gyles are to be read p. 19. 20. 26. 27. 48. 49. 50. 96. 139. 140. 142. 147. But much more full to prove its absolute dissolution long since is Mr. Will. Prynne Barrester at Law In his Law-Arguments of the 16 of June 1649. called A Legal vindication of the Liberties of England against illegal Taxes and pretended Acts of Parliament p. 3 4 5 6 c. and p. 44 45 46 c. And that the Parl. Acts long since in Law dissolved the prisoner at the Bar for further plea saith The death of tde King in law indispensibly dissolved the late Parl. as appears by the express Judgement of the Parl. of 1 H. 4. Rot. Parl. Num. 1. and the Parl. of 14 H. 4. 1 H. 5. Rot. Parl. N. 26. and 4 part Cooks Iast f. 46. which book was published for good Law by two special Orders of the House of Commons in an 1641 and 4 E. 4. 44 b. For the Writ of Summons of the late Parliament that was directed to the Sheriffs by vertue of which men were chosen for the last Parl. runs in these words King Charles being to have conference and treaty with and upon such a day about or concerning as the words of the Triennial Act hath it and high and urgent affairs concerning his Majestie the State and the defence of the kingdom and Church of England But how it 's possible for a Parl. to confer or treat with King Charles now he is dead is not to be imagined See 2 H. 5. Cook tit Parl. 3. and therefore the whole current of the Law of England yea Reason it self from the beginning to the end is expresly that the Kings death doth ipso facto dissolve this late Parliament though it had been all the time before never so entire and unquestionable to that very hour And it must needs be so he being in Law yea and by the authority of this very Parl. stiled The Head the Beginning and End of Parliaments See Cooks 1 part Instit f. 109. b. 110. a. and 4 part Inst f. 1 2 3. and Mr. Pym's fore-mentioned Speech against Strafford p. 8. and the Lord St. Joâ—ns Argum. against Strafford p. 12 70 71. and therefore as a Parl. in Law cannot begin without the Kings presence in it either by person or representation Cook ibid. in part 4. fol. 6. see also Rot. Parl. 25 E. 3. N. 10. so it is positively dissolved by his death for thereby not onely the true declared but intended end of their assembling which was to treat and confer with King Charles is ceased See 1 Edw. 6. cap. 7. Cooks 7 Rep. 30 30. and Dyer 156. 4 E. 4. f. 43 44. 1 E. 5. f. 1. Brooks Commission 19 21. and thereby a final end is put unto all the means that are appointed to attain unto the end and therefore it is as impossible for the late Parliament or any Parliament summoned by the King to be the Parliament in law after his death as it is for a Parl. to make King Charles alive again The Kings Writ that summoned this Parl. is the basis in Law and foundation of this Parl. If the foundation be destroyed the Parl. falls but the foundation of it in every circumstance is destroyed and therefore the thing built upon that foundation must needs fall it is a Maxime both in Law and Reason But if it be objected the law of necessity required the continuance of the Parliament against the letter of the Law The Prisoner at the Bar answers first its necessary to consider whether the men that would have it continue as long as they please or after it is in Law dissolved be not those that have created the necessities on purpose that by the colour thereof they may make themselves great and potent and if so then that objection hath no weight nor by any rules of Justice can they be allowed to gain this advantage by their own fault as to make that a ground of their justification which is a great part of their offence and that it is true in it self is so obvious to every unbyassed knowing eye it needs no illustration Secondly I answer There can be no necessity be pretended that can be justifiable for breach of trusts that are conferred on purpose for the redress of mischiefs and grievances yea to the subversions of Laws and liberties I am sure Mr. Pym by the Parliaments command and order told the Earl of Strafford so when he objected the like and that he was the Kings Counsellor and
A PLEA at large For JOHN LILBVRN Gentleman now a prisoner in NEWGATE Penned for his use and benefit by a faithful and true well-wisher to the Fundamental Laws Liberties and Freedoms of the antient free people of England and exposed to publick view and the censure of the unbyassed and learned men in the Laws of England Aug. 6. 1653. JOhn Lilburn Gent. now prisoner at the Bar saith That he having heard the Charge contained in the Indictment now read unto him at the Bar for Plea thereunto he saith That it appeareth by the Act of Parliament of Jan. 30. 1651. That upon the 15 of January 1651 a judgement was given in Parliament against one Lieut. Col. John Lilburn in the Act named for high Crimes and Misdemeanours by him committed as by the same appears for which the Fines and other punishments were promulgated against him mentioned in the said Act. But the said John Lilburn now prisoner at the Bar saith That the said John Lilburn in the said Act named and he the now prisoner at the Bar be not one and the self same person for that he the now prisoner at the Bar is a free-born English Gentleman and never was legally Charged Indicted and convicted either by the Parliament or any other Court of Judicature being a Court of Record in the English Nation or Commonwealth And he saith that the Parliament being dissolved and by the Law of Parliament in all dubious cases there being no other way to render the sense and meaning of the Parliament being a body politick but by Vote of Parliament he saith it is now impossible if the Speaker himself and all the individual members of the said Parliament should upon their oaths be produced at the Bar yet it is impossible by all their oaths in Law to prove the John Lilburn now prisoner at the Bar to be that Lieut. Col. John Lilburn that the said Parliament in the said Act of banishment meant because by the Law of Parliament there is no other way in all dubious cases to render the sense of Parliament but by the solemn Vote of the Parliament fitting as a Parliament and passing it thereupon as a body politick And the prisoner at the Bar further saith Neither was there any Judgement given in Parliament against him the now prisoner at the Bar for high Crimes and Misdemeanours mentioned in the said Act upon the said fifteenth of Jan. 1651. Votes and Resolves being not in the least any Judgements in Law but at most only preparatives to more serious solemn and judicious things that are to follow them for what at most are they or can they in Law be called or stiled can they in any sense be stiled Judgements No it s impossible because they are no such things in themselves for I resolve to go to such a place on such a day and it may be within an hour after I resolve to the contrary is this a Judgement No Vantrump the Dutch Admiral resolved at the last Sea-fight or the last sea-fight before that to beat the English Navy but when he came throughly to try it he was not able to do it was therefore his resolve a Judgement or the act of beating the English Fleet ever the more done because he resolved it No and therefore John Lilburn Gent. the now prisoner at the Bar saith again That a Resolve at most is but a preparative to the doing or perfecting of a more solemn act as for instance a vicious man resolves to lye with his neighbours wife is that an act therefore ever the more done because he resolves it No for it may be for all his resolve he will never be able to accomplish it or do the act whiles he breaths Again the Lord himself in Exod. 32. resolved to destroy and root out the children of Israel for making them a golden Calf and worshipping it when Moses was in the Mountain yet that resolve never came to a Judgement nor never was executed Again David in the second of Samuel and the seventeenth resolved to build God a house yet God would not let it be done by him because he was a man of blood but it was done by his son Solomon was that resolve therefore a Judgement or ever the more to be esteemed so because David resolved it no not in the least And the prisoner at the Bar further saith that it is in Law Equity or Reason impossible that a Judgement in any legal Court of England should be past against a free-born Englishman and that man dayly forth coming and never to hear read nor see any of the proceedings anteceding the said Judgement and never summoned by any legal processes to any legal proceedings nor called to any legal Bar whatsoever and demanded according to Law what he could say for himself why Judgement should not be past against him Neither did the prisoner John Lilburn now at the Bar ever in all his life time by kneeling at the Bar of the Parliament of the Commonwealth of England lately sitting at Westminster ever acknowledge that the said Parliament in Law ever had in all their life times any the least jurisdiction in the world to sentence him in any kinde or to fine imprison or banish him or any other free-born Englishman of England though never so mean that are none of their members or immediate officers for any crimes whatsoever which is not by Law in the least within their power upon any pretence whatsoever As John Lilburn the prisoner at the Bar hath fully and undenyably proved by Law in his Plea upon the Writ of Habeas Corpus before the late Judges of the Kings Bench viz. Judge Bacon and Judge Rolls upon the eighth of May 1648. as in that printed Law-Argument Entituled The Laws funeral it is fully to be read in pag. 8 9 10 11. All crimes whatsoever being for him onely and solely to be heard determined and judged at the Common Law and nowhere else all treasons being only to be tryed at the Common law by a Jury of twelve legal men of the neighbourhood as expresly appeareth by the Statute of 1 Hen. 4. chap. 10. and the 1 of May chap. 1. 2 of Mary chap. 10. and so are all misdemeanours or breaches of peace though it be in affronting beating or wounding which is much more then by papers disgracing any Parliamentman for that 's expresly to be tryed by the Kings or now as it is called upper bench as clearly appears by the fifth of Hen. 4. chap. 6. and the 11. of Hen. 6. cha 11. Yea although a Sheriff by law is to pay a hundred pound to the King or now as they are called To the Keepers of the Liberties of England and to suffer a yeers imprisonment c. without Baile or Maineprise for every false return of a Knight of the shire that he makes yet by law the House of Commons in former time were not in the least to be Judges in this very business so immediately
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 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-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
might not be question for any thing he advised according to his conscience But saith Mr. Pym p. 11. he that will have the priviledges of a Counsel must keep within the just bounds of a Counsellor those matters are the proper subjects of counsel wihch in their times and occasions may be good or beneficial to the King or Commonwealth But such Teasons as these the subversion of the Laws violation of liberties they can never be good or justifiable by any circumstances or occasions and therefore saith he his being a Counsellor maketh his fault much more hainous as being committed against a great trust and in page 12. he answers another excuse of his which was that what he did he did with a good intention It s true saith Mr. Pym Some matters that are hurtful and dangerous may he accompanied with such circumstances as may make it appear useful and convenient and in all such cases good intentions will justtifie evil counsel but where the matters prepounded are evil in their own nature such as the matters are with which the Earl of Strafford is charged viz. to break a publick saith to subvert laws and Government they can never be justified by any intentions how specious or good soever they pretended see in Mr. Steels answer to Duke Hambletons objection in the like case in his case stated pag. 12. 13. 14. The prisoner at the Bar shall close all at present with this plea viz. that although by the said unjust Act of Banishment the Act it self doth authorize all Judges Maiors Sheriffs Bayliffs and all other Officers as well Military as Civil in their respective places to be aiding and assisting in apprehending viz. the said banished Lieut. Col. John Lilburn yet it authorizeth none of them in the least to arraign try condemn and execute the said John Lilburn mentioned in the said Act and therefore by reason of the insufficiencie of the said Act in that very particular although John Lilburn Gent. now prisoner at the bar were that Lieut. Col. John Lilburn mentioned in the said Act of Banishment as with confidence for the just and legal reasons at the beginning of this Plea mentioned he doth a vow he is not yet in regard the Parliament is dissolved that made the said Act which in reason by reason of the said insufficiency of the said Act cannot otherwise be supposed but as they past the Act of Banishment themselves against the John Lilburn therein mentioned and meant so they resolve to o reserve onely to themselves the final judging and condemning of him which cannot be now without their sitting again And that in special and extraordinary acts of Parliament as the aforesaid Act of Banishment is there ought in law to be plain evident and full words especially when it doth concern life to demonstrate and express who shall finally put the said Acts in execution And that this is Law the same Parliament that made the foresaid Act of Banishment doth in several Acts since fully justifie this the prisoner at the Bar's averment of several of their Acts of Parliament as particularly that of Aug. 2. 1650. intituled An Act to prohibit all commerce and traffique between England and Scotland and enjoyn the departure of the Scots ouâ— of this Commonwealth In the Preamble or beginning of which the mischievous designes of the Scotish nation are declared and their compelling of England to make war upon them In the body of which Act it is declared for the raking off as the Act saith all pretence of ignorance and enacted That all and every person or persons within this Commonwealth of England or the Dominions thereof that shall from and after the 5 of August 1641 use hold or maintain any correspondency or intelligence with any person or persons of the Scotish nation c. or shall abet assist countenance or encourage the said Scotish nation or any other perâ—on or persons adhering to them in their war against the Parliament and Commonwealth of England or shall go oâ— send or cause to be sent or conveyed any men monâ—ys horse arms ammunition or other fuâ—niture of war plate goods or merchandise or other supply whatsoever inâ—o Scotland or any ports or places thereof c. all and every such person or persons so offending without such license as is therein mentioned shall be adjudged as Traytors to this Commonwealth and shall undergo all the pains penalties and forfeitures as in case of high-trâ—ason And although the Scots were at present as great enemies to the Parliament as the Parl. could imagine any persons in the world could be and the offences aforementioned of any of them against this nation as criminous and the time as arbitrary a time being a time of war as could be imagined yet the Parliament would be so just even to strangers and aliens and people or a forraign nation as not to leave them arbitrary for their transgressions to be punished by whom were pleased first to lay hold of it but in ample and plain words fixeth upon the persons that are to do it or execute it therefore the Act expresly saith The same offences shall be enquired of tryed judged and determined by the Commissioners for the high Court of Justice lately established in such manner and form as other offences already reserved to the power and cognizance of that Court are to be hdard and determined And in the second part of the Act the makers of it come to declare it treason for any person or persons of the Scotish nation without such license as is therein mentioned to be found within the Lines of Communication after Aug. 10. 1631. And in the third place the matter of the said Act makes it high treason for any person or persons of the Scotish nation without license as is therein mentioned to stay within the limits of the Commonwealth after Sept. 1. 1651. Yet the prisoner at the bar as he saith before doth now avow that the said Parl. that made the said Act would be so just men unto strangers and aliens and people of a forraign nation as not to leave them arbitrary for their transgressions to be punished by whom were pleased first to lay hold on them but in ample and plain words fixeth upon the persons that are to do it or execute it and therefore the Act again expresly saith That the said offences and treasons shall be proceeded against by the said Commissioners of the high Court of Justice who are required to give Judgement and Sentence of death against offenders And every person and persons so found guilty of the said offences shall suffer the pains of death as traytors and enemies in such manner as the said Commissioners shall adjudge and appoint And the same ample and full words as in that special Act for suppressing of Incest Adultery c. which by plain and evident words doth refer the punishment of the offenders therein named to the next Assizes or Goal-delivery to be held for the said County where the fact is committed And the very self-same particular words are in the Act intituled An Act against several atheistical blasphemous and execrable Opinions derogatory to the honour of God and destructive to humane society to refer the punishment of all the transgressors thereof at common law before the Justices of Assize or Goal-delivery as by the Acts themselves doth more fully appear unto which the prisoner at the bar for more safety referreth himself And lastly the prisoner at the bar for his final plea saith That Lieut. Col. John Lilburn indicted in the said Indictment now read is none of the prisoner at the bar's name and so he is not the party mentioned in the said Indictment now read All which premises he is ready to prove for good Law and therefore humbly prays the judgement of the Court before he put himself upon any further Tryal July 13. 1653. John Lilburn Gentleman