try me or any Commoner whatsoever in any criminall cause either for life limb liberty or estate But contrary hereunto as incroachers and usurpers upon my freedomes and liberties they lately and illegally endeavoured to try me a Commoner at their Barre For which I under my hand and seale protested to their faces against them as violent and illegall incroachers upon the Rights and Liberties of me and all the Commons of England a copy of which c. I herewith in print send you And at their Barre I openly appealed to my competent proper legall Tryers and Judges the Commons of England assembled in Parliament For which their Lordships did illegally arbitrarily and tyrannically commit me to prison into your custody Which Protestation and Papers and matters therein contained doe falsly and scandalously and maliciously charge the Peeres in Parliament with tyranny usurpation perjury injustice and breach of the great trust in them reposed and are a high breach of the Priviledges of Parliament And are high offences against the Lawes and Statutes of this Kingdome and doe tend to the great scandall of the said Peeres and the authority with which they are intrusted to stir up differences between the said Peeres and other the Subjects of this Realme Natha Finch Vpon which Articles he refusing to hear them read as concerning their proceedings against him to be illegall and that as a Commoner of England they had no jurisdiction over him they proceeded to sentence him as followeth Iuly 10. 1646. JT is to be remembred that the 10. day of Iuly in the 22. Year of the Raign of our Soveraign Lord King Charles Sir Nath. Finch Knight His Majesties Serjeant at Law did deliver in before the Lords assembled in Parliament at VVestminster certain Articles against Lieutenant-Colonell Iohn Lilburn for high Crimes and Misdemeanours done and committed by him together with certain Bookes and Papers thereunto annexed Which Articles aad the said Bookes and Papers thereunto annexed are filed among the Records of Parliament The tenour of which Articles followeth in these words Which Articles being by the command of the Lords then and there assembled in Parliament read It was then and there that is to say the said 10. day of July by their Lordships ordered That the said John Lilburn be brought to the Bar of this House the 11. day of the said July to answer the said Articles That thereupon their Lordships might proceed therein according as to Justice should appertain At which day aforesaid the 11. day of July Anno Dom. 1646. the said John Lilburn according to the said Order was brought before the Peers then assembled and sitting in Parliament to answer the said Articles And the said John Lilburn being thereupon required by the said Peers in Parliament to kneel at the Bar of the said house as is used in such Cases and to hear his said Charge read to the end that he might be inabled to make defence thereunto The said John Lilburn in contempt and scorn of the said high Court did not only refuse to kneel at the said Bar but did also in a contemptuous manner then and there at the open Barre of the said House openly and contemptuously refuse to heare the said Articles read and used divers contemptuous words in high derogation of the Justice Dignity and Power of the said Court And the said Charge being neverthelesse then and there read the said John Lilburn was then and there by the said Lords assembled in Parliament demanded what Answer or Defence he would make thereunto the said Iohn Lilburn persisting in his obstinate and contemptuous behaviour did peremptorily and absolutely refuse to make any Defence or Answer to the said Articles and did then and there in high contempt of the said Court and of the Peers there assembled at the open Bar of the said House of Peers affirme that they were Usurpers and unrighteous Judges and that he would not answer the said Articles and used divers other insolent and contemptuous speeches against their Lordships and that high Court Whereupon the Lords assembled in Parliament taking into their serious consideration the said contemptuous carriage and words of the said John Lilburn to the great affront and contempt of this high and honourable Court and the Justice Authority and Dignity therof It is therefore this present 11. day of Iuly ordered and adjudged by the Lords assembled in Parliament That the said Iohn Lilburn be Fined And the said Iohn Lilburn by the Lords assembled in PARLIAMENT for his said contempt is Fined to the Kings Majesty in the summe of two thousand pounds And it is further ordered and adjudged by the said Lords assembled in Parliament That the said Iohn Lilburn for his said contempts be and stand committed to the Tower of London during the pleasure of the said House And further the said Lords assembled in Parliament taking into consideration the said contemptuous refusall of the said Iohn Lilburn to make any Defence or Answer to the said Articles did declare That the said Iohn Lilburn ought not thereby to escape the Justice of the House But the said Articles and the Offences thereby charged to have been committed by the said Iohn Lilburn ought thereupon to be taken as consessed Wherefore the Lords assembled in Parliament taking the premises into consideration and for that it appeares by the said Articles That the said Iohn Lilburn hath not onely maliciously published severall scandalous and libellous passages of a very high nature against the Peers of Parliament therein particularly named and against the Peerage of this Realm in generall But contrived and contemptuously published and openly at the Barre of the House delivered certain scandalous Papers to the high contempt and scandall of the Dignity Power and Authority of this House All which offences by the peremptory refusall of the said Iohn Lilburn to answer or make any Defence to the said Articles stands confessed by the said Lilburn as they are in the said Articles charged It is therefore the said Day and Year last above-mentioned further ordered and adjudged by the Lords assembled in Parliament upon the whole matter in the said Articles contained I. That the said Iohn Lilburn be Fined to the Kings Majesty in the summe of two thousand pounds II. And that he stand and be imprisoned in the Tower of London by the space of 7. years now next ensuing III. And further that he the said Iohn Lilburn from henceforth stand and be uncapable to bear any Office or Place in Military or in Civill-Government in Church or Common-Wealth during his life Die Sabbathi 11. Julii 1646. ORdered by the Lords in Parliament That Iohn Lilburn being sentenced by this House shall for his high Contempt and Misdemenors done to this High Court according to the said Sentence stand committed to the Tower of London for the space of 7. Years next after the date hereof And that the Lieutenant of the said Tower of London his Deputy or Deputies are to keep
persons only but also of the persons of men not plevisable and indicted insomuch that they ought not to be oppressed by their Judges or Goalers upon pain of Felony This caused our Author to complain in the time of King Edward the first that those good Lawes were 〈◊〉 in these words It is an abuse that Goalers are suffered to spoyle and oppresse their prisoners or to take ought from them save their Armour and Weapons Nu. 52. It is an abusion that prisoners are put in Irons or to other pain before they are attainted of Felony Nu. 5. It is an abusion to imprison any other man then he that is indicted or appealed of Felony in case he want not pledges or mainpernours pag. 289 And that this was the Law is very clear for that King Alfred did cause Fourty four Justices in one year to be hanged for breach of these Lawes And more particularly the Suitors of Cirencester for that they did detain a man so long in prison that offered to acquit himselfe that he died there as you may find pag. 301. whereby you may clearly perceive that the Liberties of the Subjects of England as touching their persons are not grounded meerly upon Magna Charta but are of a more ancient foundation even in the originall Lawes of the Nation the Statute of Magna Charta being onely a Declaration or Confirmation of those former Lawes which by Divine right and Nature we inherit As Sir Edward Cook in his Proeme to the second part of his Institutes observes These Lawes were gathered and observed amongst others in an intire volume by King EDWARD the Confessor And though that William the Conquerour came in by the Sword yet at the petition of the Lords and Commons of this Realme he confirmed these Lawes unto us for the sake of King Edward that devised unto him the Kingdome as witnesse Matth. Paris and William of Malmesbury which were afterwards confirmed by King Henry the first and enlarged by Henry the second in his Constitutions made at Clarendon and after much blood spent between King John and his Barons concerning them re-established at Running Mead neere Stanes and lastly brought to a full growth and made publique by King Henry the third in the ninth yeare of his reigne though he sought afterwards to avoid both that of his father King John upon pretence of dures of imprisonment and his own by nonage Yet neverthelesse God so ordaining in the 20. year of his reigne he did confirm and compleat the said Charter for a perpetual establishment of liberty to all free-born Englishmen and their heirs for ever ordaining Quod contravenientes per Dominuns Regem cum convicti fuerint graviter puniantur Which is that those that went against these lawes when they were convicted should bee grievously punished by our Lord the King And in the 52. yeare of his reign by the Stat. of Marleb c. 5. this Charter was confirmed by Act of Parliament and hath since been not lesse then 33. times confirmed and established and commanded to be put in execution by severall Parliaments since held This Charter of our Liberties or Freemans Birth-right that cost so much blood of our Ancestors and was so long in the Forge before it could be fashioned being no lesse then 200. yeares under persecution before it was brought to perfection is that brazen wall and impregnable Bulwark that defends the Common liberty of England from all illegall destructive Arbitrary Power whatsoever be it either by Prince or State endeavoured And because it imports us so much we shall recite the words of this Charter as to our present purpose of the vindication of our liberties both of persons estates And first ch 14. it runs thus A Freeman shall not be amerced for a small fault but after the manner of the fault and for a great fault after the greatnesse thereof saving to him his contentment and a Merchant saving to him likewise his Merehandise And none of the said amercements shall be assessed but by oath of honest and lawful men of the vicinage This part of the charter was made in affirmance of the Common Law as appeares by Glanvil l. 9. c. 11. where he useth these words Est autem miserico dia domini Regis qua quio per juramentum legalium hominum de vicineto eatenus amerciandus est ne quis de suo honorabili contenemento amittet In English thus The amercements or mercy of the King ought to be such whereby a man is to be amerced by the oath of lawfull men of the neighbourhood or County in such manner that he may not lose any thing of that countenance or subsistence together with and by reason of his Free-hold For so is the sense of the word taken in the Statute of 1. Edw. 3. cap. 4. and vet n. Br. fol. 11. The Armour and weapons and profession of a Souldier is his countenance And the books of a Scholler So Sir Edward Cook 2. part of Instit pag. 28. Amercements ought to be assessed by the equals of him that is amerced So is the expresse Book of 7. H. 6. fo 12. in Dett Fitz. Herbert Nat. Brev. fol. 73. And in case where a man is amerced he ought not to be imprisoned as appeares 11. H. 4. fol. 55. The intent of which clause of the Great Charter is That no man should be tried but by his Equals as more fully appeares cap. 29. where it is thus enacted No Freeman shall be taken or imprisoned or disseised of his Free-hold or Liberties or free Customes or be out-lawed or exiled or any otherwise destroyed nor we will not passe upon him nor condemne him but by lawfull judgement of his PEERES or by the law of the land In these few words lies conched the liberty of the whole English Nation This word liber Homo or free Man extends to all manner of English people as appears Stamf. Pl. Coron pag. 152. In these words of this Charter before recited there are these 6. particulars First That no man shall be taken or imprisoned but by the law of the land Secondly That no man shall be disseised dispossessed sequestred or put out of his Free-hold that is lands or lively-hood liberties or free Customes but by the Law of the Land Thirdly No man shall bee Out-lawed but by the Law of the Land Fourthly No man shall bee exiled but according to the Law of the Land Fifthly That no man shall be in any sort destroyed unlesse it bee by the law of the land Sixthly No man shall be condemned but by a lawfull judgement of his Peeres or by the law of the land Where first it is to be noted that these words By lawfull judgement of his Peeres or By the law of the land are Synonyma's or words of equall signification and that the law of the land and lawfull judgement of Peeres are the proprium quarto modo or essentiall qualities of this Chapter of our great Charter being communicable omni
protection of the law aâ—d not to be permitted to sue for a mans right or to bee staied by injunction or pronibition so that a man cannot proceed All which causes are illegall and contrary to this clause of the great Charter For every man ought to bee permitted to goe to triall judgement and execution in his cause according to the course of the law of the land And if he faile in his suit he shall pay costs and be amerced pro falso clamore Which amencement ought to bee reasonable salvo contenemento that he be not destroyed as is before declared Which payment of destruction is the fourth particular and now comes to be handled The words of the great Charter are That no man shall be any way destroyed but by judgement of his equals or according to the law of the land This word destruere amongst the Grammarians est idem quod penitus evertere diruere to destroy is all one as utterly to overthrow and demolish To destroy a man is to forejudge a man of life limb or liberty to dis-herit to put to torture or death any man without lawfull tryall due preparation to his defence or by SURREPTITIOUS IUDGEMENT All which are contrary to the law of the land It is the Genus of all the former particulars it is the most pernicious extent of all arbitrary power there have been to many examples of it Thomas Earl of Lancaster in the 14. E. 2. was destroyed that is adjudged to dye as a Traytor without lawfull try all of his Peers And afterwards Henry Earl of Lancaster his brother was restored First because that he was not arraigned and put to answer Secondly because that contrary to this Charter of Liberties the said Thomas being one of the Peers of the Realm without answer or lawfull judgment of his Peers he was put to death Such like proceedings were had in the case of John of Gaunt as appears P. 39. Coram Rege and in the E. of Aruudels case Rot. Par. 4. E. 3. Nu. 13. and in Sir John Alees case 4. E. 3. Nu. 2. Such was the destruction committed upon the Lord Hastings in the Tower of London by K. Richard the 3. who sware he would not dye before he saw his head off and thereupon caused him to be executed without tryall answer or lawfull conviction such was the destruction of the Lord Rivers and many other of sad remembrance but above all that Attainder of Thomas Cromwell Earl of Essen who was attainted of high Treason as appears Rot. Part. 32. H. 8. being committed to the Tower of London and forth-coming to be heard and yet never called to answer in any of the Houses of Parliament they sitting which we hope shal never be more drawn into president but wish with a clearned sage in the Law Quod auferat oblivio si potest si non utcunque silentium tegat which is let oblivion take away the memory of so foul a fact if it can if it cannot let silence cover it For the more high and honourable the Court is the more just and honourable it ought to be in the proceeding and to give example of Justice to inferiour Courts for these destructores subditorum dom Regis the destroyers of the free-born people of the Kingdom were ever-odious and hatefull to the subject and severe pains appointed for them as appears by the Statute of Kenelworth Par. 16. and by the old Statute of Rag-man and that this kind of destroying the Kings people is utterly against the Law of the Land is most evident not only by the great Charter but also by the Statute of 5. c. 3. c. 9. and 28. E. 3. c. 3. afore-mentioned and by the ancient Lawes of the Land as appears by Horn in his Mirrour of Justice c 2. sect 3. We proceed now to Exile which is the fifth particular The great Charter runs thus No man shall be exiled but by the Law of the Land Exile or banishment is of two sorts The one a voluntary which is at the Common-Law and that is when a man would abjure the Realm for a Fellony committed by him having taken sanctuary to avoid the punishment of death chusing rather perpetuall banishment then to put himself to the hazard of his life by a legall tryall for his offence as Stamf. Pl. Cor. p. 117. The other is when a man is inforced to banishment which is only legally done by Act of Parliament as appeares by the Statute of Westrn 1. cap. 20 35. El. c. 1. and 39. El. c. 4. and by that Judgment or Statute of banishment made of the two Spencers 15. E. 2. called Exilium Hugonis le-Despencer patris filii for though there was an Order or Ordinance made in the Lords house Anno 6. E. 3. Nu. 6. That such learned men in the Law as should be sent as Justices or otherwise to serue in Ireland should have no excuse yet saith Sir Edw. Cooke 2. part Instit p. 48. That Order or Ordinance being no Act of Parliament it did not bind the subject so that we that are the free-born subjects of England cannot at this day be enforced or compelled to depart the Realme or be exiled or banished from our native Country but by Act of Parliament And from this we passe to examine what is to be esteemed a lawfull Judgment of our Peers and what is here in this Charter meant by the Law of the Land This Great Charter was penned in Latine the words are thus Nec super eum ibimus nec super eummittemus nisi per legale judicium Parium suorum which are more emphatically in the Latine then in our English Translations of this Charter for the Translations render it We will not passe upon nor condemn any man but by the lawfull judgment of his Peers or by the Law of the Land whereas the words in the Latine import That the King shall not in his own person when he is personally present in his high Court of Parliament or any other of his Courts of Justice cause any man to be otherwise tryed or condemned then by lawfull judgment of his Peers or the law of the Land nec super eum mittemus that is That no Judges Commissioners or Justices of the King shall by force of any Writ or Commission from the King under the Great Seal in his absence arraign try or condemn any man but by the lawfull judgment of his Peers or by the law of the Land Now this legale judicium parium suorum or lawfull judgment of a mans Peers is and hath alwayes had a two-fold construction in law the one is When a Lord of the Parliament hath committed treason or felony or other capitall offence whereby he is indictable at the Kings Suite there he by vertue of this Charter ought to be tryed by his Peers that is such as are Lords of Parliament that sit there by reason of their Nobility for no Noble-man that is not a Lord of
the Parliament or any other that sits in the Lords house by Writ Et non ratione nobiliatis can be a tryer of a Lord of the Parliament or challenge this priviledge of tryall in case of Treason Fellony or other capitall offence But a Noble-man of the Parliament shall not have this priviledge either upon an Indictment of Praemunire or upon an Appeale of Fellony at the suit of the party or in any Civill-Action either concerning the right of Lands or of other Possessions or in any personall Action brought by a Common-person against a Lord of the Parliament as appeares unto us by the Bookes of 1. H. 4. f. 1 13. H. 8. f. 12. 10. E. 4. fol. 6. This tryall of Noble-men by their Peers at the Kings Suit is not upon Oath as in the case of common persons for the Peers are not sworn before the Lord Steward before whom this tryall must bee had but they are to be charged by the Lord Steward super fidelitatibus ligeantiis Dom. Regi debitis that is upon their faith and allegeance due to the King and if they acquit the Peer or Noble-man upon whom they passe the Entry is Willelmus Comes E. cateri Antedicti pares instâ—nter super fidelitatibus ligeantiis dicto Dâ—m Regi debitis per praefaruÌ„ SenescalluÌ„ ab inferiori usque ad supremum separatim examinati dicunt quod Wil. Dom. Dacre nox est Culp and so was the Entry in the case of the Lord Dacres 26. H. 8. Spilmans Reports and Cookes Instit 3. part p. 30. If a Noble-man be indicted of Treason Felony or Murder and cannot be found he shall be outlawed by the Coroners of the County and in case of Clergy no Noble-man shall have more priviledge then a common-person where it is not specially provided for them by Act of Parliament as by Stamford pl. Cor. p. 130. is made manifest out of all which we gather that a Nobleman hath this priviledge of tryal as well per lege terra as by this Charter and that anciently legale judicium parium or lawfull tryall of Peers for all manner of persons aswell Noblemen as Commons was vere-dictum duodecim proborum legalium hominum de vicineto a verdict of 12. good and lawfull men of the Neighbour-hood that is of the Commons of England so still remains saving only in this excepted case by the Great Charter which shewes that there can be no legale judicium or lawfull judgment but it must be per legem terrae or according to the Law of the Land which is the other branch of this judgment as to the Commons of England Now to prove that legale judicium parium or lawfull judgment of a mans Peers or Equals is by verdict of 12. men and not otherwise for the word Peers vinvocally signifies both Let us consult both the judgment of Parliaments in this point and the fundamentall lawes of the Land And first for the opinions of Parliaments in this point we finde that by the statute of 25. E. 3. c. 4. None shall be taken by petition or suggestion made to our Lord the King or to his Councell unlesse it be by indictment or presentment of his good and lawfull people of the same neighbour-hood 42. E. 3. c. 3. It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices or matter of Record or by due processe and Writ originall according to the old law of the Land and if any thing be done froÌ„ henceforth contrary it shall be void in law and holden for errour and to say one word for all there are above 50 statutes now in print and in force that warrant this tryall or legale judicium parium suorum or tryall by a mans Equals or Peers made since the Great Charter in severall cases the citing of which statutes for prolixity we avoid And that this manner of tryall was the old law of the Land wee are here to make it appear that this manner of tryall is according to the law of the Land and that there is none other wherein we are to observe this distinction that this legale judicium or lawfull judgment is two-fold The one is of the matter of Fact The other is of matter of Law That which is of matter of Fact is to be tryed per legale indicium parium or a lawfull tryall of a mans Peers That which is of matter of Law is to be tryed by the Judges or Justices of the Land authorized thereunto by the Kings lawfull Commissions To prove that there is no other lawfull Judgment of our Peeres or Equals As touchiug the matter of Fact we are to examine the foundation of this Common-wealth and the originall constitutions thereof We find that King Alfred having reduced this Kingdome of England into an Entire-Monarchy divided it into 38. Counties and each County into severall Hundred and Mannors The Counties were put under the government of Earles who substituted under them Viscounts or Sheriffes for the quiet government of the people the Hundreds and Mannors subordinately under the severall Lords of them The Sheriffes had two Courts to wit the Sheriffes-Tourn and the County-Court The first for offences against the peace of the Land The latter for entry and determination of civill-causes between party and party In the first indictment or presentment of offences was made per-Enquest that is by Juries In the second the Free-suiters that is men of the neighbor-hood The like was done in the leets or viewes of Frankepledge and Hundred-Courts in the Hundreds The like proceedings was in the Leets and Court-Barons of Mannors in those Courts There was no condemnation or judgment given but by the Enquirie of good and lawfull men of the neighbor-hood This every book of the Law tells us for more particular satisfaction read Horn f. 8. and fore-ward These Courts were formed after the modell of the greater Courts of the Realme the Kings-Bench and Common-pleas where greater jurisdiction was as to the matter to be enquired of but no variation originally in the manner of proceeding only the jurisdiction of the Court of Kings-Bench and Common-Pleas in tryals of actions ad dampnum 40. s. flowed over the whole Kingdome The other Courts were confined to their severall limits and might not exceed 40. s. damages these were the originall Courts of the Kingdome and the legale judicium parium or lawfull judgment of Peers was only tryall by Jury of Equals before this great Charter From which tryals this clause is inserted into it and by an inviolable right of law continues in force even to this day as every free subject of England by experience knowes and as every book of our law proves into us the verdict of the Jury in criminall causes being the judgment of Attainder and in civill causes a condemnation as Stamford pl. Cor. p 44. and ali other bookes prove And to leave every man without
by him contrived and caused to be printed and published intituled The just Mans justification Or A Lettnr by way of Plea in Bar hath falsly and scandalously in certain Passages of the said Book affirmed and published concerning the said Earle of Manchester and his demeanour in his said Office and Imployment And touching the complaint by the said Lilburn alledged to be made by him and others to the said Earle relating to the said Earle as followeth Pa. 2. I complained to the Earle of Manchester thereof being both his Generall and mine And at the same time divers Gentlemen of the Committee of Lincoln as Mr Archer c. having Articles of a very high nature against him pressed my Lord meaning the said Earl to a triall of him at a Councell of warre And at the very same time the Major Aldermen and Town-Clerk of Boston came to Lincoln to my Lord meaning the said Earle with Articles of a superlative nature against King their Governor but could not get my Lord meaning the said Earle to let us enjoy justice at a Councel of War according to all our expectations as of right we ought to have had which at present saved his head upon his shoulders And page 8. and 9. of that Book did affirm these words viz We could not at all prevaile the reason of which I am not able to render unlesse it were that his two Chaplaines Lee and Garter prevailed with the Earle meaning the said Earle of Manchesters two Chaplains Ash and Goode to cast a Clergie-mist over their Lords meaning the said Earles eyes that he should not bee able to see any deformity in Colonell King II. THe said Iohn Lilbure within three moneths last past in a certaine book by him contrived and caused to be printed and published hereunto annexed intituled The Free-mans Freedom vindicated or A true Relation of the cause and manner of Lieu. Colonell Iohn Lilburns present imprisonment in Newgate being thereunto arbitrarily and illegally committed by the House of Peeres June 11. 1646. for his delivering in at their open Barre under his hand and seal his Protestation against their incroaching upon the common liberties of all the Commons of England in endeavouring to try him a Commoner of England in a criminall cause contrary to the expresse tenor and form of the 29 chapter of the great Charter of England And for making his legall and just appeale to his competent proper and legall Tryers and Judges the Commons of England in Parliament assembled did falsly and scandalously in the eighth page of that Book publish and affirm concerning the said Earle of Manchester these false and scandalous words I clearly perceive the hand of Ioab to be in this namely my old back-friend the Earle of Manchester the fountain as I conceive of all my present troubles who would have hanged me for taking a Castle from the Cavaliers in Yorkeshire but is so closely glu'd in in interest to that party that hee protected from justice Colonel King one of his own Officers for his good service in treacherously delivering or betraying Crowland to the Cavaliers and never called nor that I could heare desired to call to account his Officer or Officers that basely cowardly and treacherously betrayed and delivered Lincoln last up to the enemy without striking one stroke or staying till so much as a Troop of Horse or a Trumpetter came to demand it His Lordships head hath stood it seems too long upon his shoulders that makes him he cannot be quiet till Lieu. Generall Cromwels charge against him fully proved in the House of Commons be revived which is of as high a nature I beleeve as ever any charge given in there The Epitomy of which I have by me and his Lordship may live shortly to see it in print by my meanes And the said Iohn Lilburne in the Book and page last mentioned in scandall and dishonour to Henry Earle of Stamford a Peere of this Kingdome and late a Commander of Forces of the Parliament maketh this scandalous expression concerning the said Earle of Stamford viz. And for my Lord of Stamford at present I desire him to remember but one Article made at the delivery of Exceter which it may be may in time coole his furious endeavour to inflame the free people of England III. VVHereas the said Iohn Lilburne upon the 10. day of Iune last past by vertue of the Order of the Peeres assembled in this present Parliament was brought to the Barre of the House of Peeres then sitting in Parliament to answer concerning the said Book in the said first Article mentioned the said Iohn Lilburne falsly and maliciously intending to scandalize and dishonour the Peeres assembled in Parliament and their just rights and authorities did then and there in contempt of the said House of Peeres at the open Barre of the said House the Peeres then sitting in the said House in Parliament openly deliver a certain paper hereunto annexed under his hand and seale intituled The Protestation Plea and Defence of Lieu. Colonell John Lilburne given to the Lords at their Barre the 11. of June 1646. with his appeale to his competent proper and legall Tryers and Judges the Commons of England assembled in Parliament which paper is hereunto annexed and since caused the same to be printed and published In which paper among other scandals therein contained he published and affirmed concerning the Lords in Parliament these words following Viz. Therefore my Lords you being as you are called Peeres meerly made by prerogative and never intrusted of improved by the Commons of England And in another place thereof concerning their Lordships and their proceedings in Parliament did protest and publish these words following I doe here at your open Barre protest against all your present proceedings with me in this pretended criminall cause as unjust and against the tenor and form of the great Charter which all you have sworn inviolably to observe and caused the Commons of England to doe the same And therefore my Lords I doe hereby declare and am resolved as in duty bound to God my selfe countrey and posterity to maintain my legall liberties to the last drop of my blood against all opposers whatsoever having so often in the field c. adventured my life there-for and doe from you and your Barre as incroachers and usurping Judges appeale to the Barre and Tribunall of my competent proper and legall Tryers and Judges the Commons of England assembled in Parliament And in pursuance of his said malicious and illegall practice did afterwards contrive and publish a scandalous and libellous letter hereunto likewise annexed directed to Mr. Wollaston Keeper of Newgate or his Deputy wherein among other things he hath caused to be inserted and published these words concerning the Peeres in Parliament viz. Their Lordships sitting by vertue of Prerogative-patents and not by election or consent of the people have as Magna Charta and other good lawes of the Land tell me nothing to doe to
man is to be tryed per legale judicium parium suorum by the lawfull judgment of his Peers which Statute gives the Lords of Parliament a jurisdiction over their Peers which cannot be taken from them and as the Lords have a jurisdiction over their Peers so have the Commons over their Peers viz. all the Commons of England for as Sir Edw Cook 2. part of his Institutes pag. 29. in his Coment upon Magna Charta c. 14. observes that the generall division of persons by the Law of England is either into the Nobility of the Peerage or Lords house or the Commons of the Realm for as every of the Nobles is a Peer to each other though they have severall Names of Dignity as Dukes Marquisses Earles Viscounts and Barons so of the Commons of the Realme each Commoner is a Peer or Equall to another though they be of severall Degrees as Knights Esquites Citizens Gentlemen Yeomen and Rurgesses and this distinction we find likewise in Bracton c. 2. sol 36. and both these Jurisdictions do belong to both Houses naturali equitate by a naturall right or equity as hereafter more plainly will be demonstrated and according to this Jurisdiction have the Commons themselves given judgment upon a Commoner as in the case of Thomas Longe cited by Sir Edward Cooke vbi supra p. 23. and recorded in the Journall Book of the House of Commons 8. Eliz. Onslow Speaker f. 19. and in the case of Arthur Hall 23 Eliz. f. 14. Popham Attorney General Speaker and divers others Now that the Lords and Commons have a joynt Jurisdiction or power of Judicature over both Lords and Commons is manifest by the Judgments given against the Lord Audley at the Parliament held at Yorke Anno 12. 22 Consideratum est per Praelatos Comites Barones communitatem Angliae and in 15. E. 2. the Judgment given against the Spencers both Earles Hugh the Father and Hugh the Son who were adjudged to exile by the Lords and Commons and Sir John Alees adjudged by the Lords and Commons as appeares 42. E. 3. Nu. 20. Rot Parl. and of late time in the cases of Sir Giles Mompesson the Lord Viscount of St. Alban and the Earl of Middlesex in 18. 21. Iacob Regis In all which Judgements the Kings consent was concurrent which gave those Judgments life and efficacy Having thus distinguished the severall and joynt Jurisdiction of both Houses it will bee necessary to shew whence these have sprung and how they are grown It appears by the old Treatise de modo tenendi Parliamentum which was made before the Conquest and presented to the Conquerour who held a Parliament in that forme as appeares by the book of 21. E. 3. f. 60. That both Houses of Parliament sate together and were but in effect one House and so continued long after the Conquest till 5. and 6. E. 3. as appears by the Parliament Rolls of 5. E. 3. Nu. 3. and 6. E. 3. and by the 4. part of Sir Edward Cookes Instit p. 2. and as may be gathered by the Preamble to the Statute of Marlebridge made 52. H. 3. Westm the first 3. E. 1. Westm 2. 13 E. 1 the Statute of Yorke made 12. E. 2. and others which mention that the Prelates Earles Barons and Commonalty of the Realm were called together whereby we may infer that they sate as one House to consult of the weighty affaires of this Kingdom from whence we collect that the Lords had whilest they sate as one House no particular jurisdiction nor the Commons any to themselves alone but their jurisdiction was joynt being mixt of both their powers and communicative to all alike of both Kingdoms and this appeares cleerly by the case of the Lord Audley 12. E. 2. and the cause of the Spencers 15. E. 2. afore cited and by the case of Nicholas Segrave adjudged in Parliament as appears Placit Parliament 33. E. 1. Rot. 33. per Praelatos Comites Barones alios de consilio by the Prelates Earles Barons and others of the Councell that is the Parliament and more plainly by that spoken by Sir Edward Cook 2 part of his Instit p. 50. And though of antient time saith he the Lords and Peers of the Realm used in Parliament to give judgment in case of Treason and Fellony against those that were no Lords of Parliament Yet at the suit of the Lords it was enacted that albeit the Lords and Peers of the Realm as Judges of the Parliament in the presence of the King had taken upon them to give judgment in case of Treason and Fellony of such as were not Peers of the Realm that hereafter no Peers shall be driven to give judgment on any others then on their Peers according to the Law And he cites Rot. Parl. 4. E. 3. Nu. 6. to maintain this assertion of his But to conclude more strongly we find it recorded in 4. E. 3. Rot. 2. and inrolled in Chancery in the cause of Sir Simon de Berisford who was adjudged as an accessary to Roger Mortimer of the murder of King Ed 2. in these very words viz. And it is assented and agreed by our Lord the King and all the Grandees in full Parliament that albeit the said Peers as Judges of Parliament took upon them in the presence of our Lord the King to make and give the said judgment by the assent of the King upon some of them which were not their Peers and that by reason of the murder of their liege Lord and the destruction of him which was so neare of the Blood-Royall and Son of a King that therefore the said Peeres which now are or the Peeres which shall be for the time to come be not bound or charged to give judgment upon others then upon their Peers nor shall do it But let the Peers of the land have power but of that forever they be discharged and acquitted and that the aforesaid judgment now given be not drawn into example or consequence for the time to come by which the said Peeres may be charged hereafter to judge others then their Peers against the Law of the Land if any such case happen which God defend All which afore-mentioned presidents and judgments were made and given before the separation of the two Houses whilest they sate together Out of which we collect and gather that the Lords had no particular jurisdiction to themselves or of themselves before the division separation of the Pouses and that it was against the Law of the Land for the Peers before this separation to judge a Commoner in any case whatsoever Nay that their hands are bound by their assent never to judge any in future which Sir Ed Cork saith was enacted So that joyning the one consideration with the other it is most cleer that the Peers at this day cannot judge a Commoner no not if the King joyn with them especially in case of life or free-hold for in the book of 4 H. 7.
VOX PLEBIS OR The Peoples Out-cry Against Oppression Injustice and Tyranny Wherein the Liberty of the Subject is asserted Magna Charta briefly but pithily expounded Lieutenant Colonell LILBURNES Sentence published and refuted Committees arraigned Goalers condemned and remedies provided .. ISAI 10. 1. 2. Woe unto them that decree unrighteous Decrees and that write grievousnesse which they have prescribed To turn away the needy from judgoment and to take away the right from the poore of my people that Widowes may be their prey and that they may rob the Fatherlesse JER 22. 15. 16. 17. Shalt thou reign because thou closest thy selfe in Cedar Did not thy Father eat and drinke and doe judgement and justice and then it was well with him He judged the cause of the poore and needy then it was well with him was not this to know me saith the Lord But thine eyes and thine heart are not but for thy covetousnesse and for to shed innocent blood and for oppression and violence to doe it London printed 1646. in the sitting of Parliament during which time the Presse ought to be free and open as the Parliament declared to the Bishops at the beginning thereof ALL States in the beginning are venerable That Republique which would keâ—p it selfe from ruine is above all other things to keep their Religion uncorrupted and their Lawes from violation 〈◊〉 or as true Religion is the tie of the Conscience to obedience and observation of just Lawes especially such as have their foundation in Divine Authority So are good Lawes the civill sanctions or sinewes of a Common-wealth that bind the members thereof together by the execution of justice and piety in a perpetuall bond of peace and tranquillity So that if either Religion be neglected or the Lawes violated the ruine of that Common-wealth must needs be neere where such defects are found But where Religion is held in due reverenee and the ancient Lawes of that Common-wealth are inviolably kept the Governors of such a State shall easily keep their Common-wealth religious and consequently virtuous and united Now there is no better way to make the Subjects of a State good and to incline them to virtue then that those that sit at the Helm of that State and have the government thereof should hold forth cleare examples of piety and justice in their own lives and actions to the people under their government especially in the administration of Lawes For as hunger and poverty make men laborious so Lawes duly administred make them good and good examples proceed from good education and good education from the due observance of setled Lawes Of all humane Lawes there is none more fit to be observed then those that concern our Lives and Liberties For those that concern our Lives they are most carefully with the greatest piety and circumspection to be executed since if our lives bee taken away by injustice death being ultimum supplicium the last punishment in this world our injuries are remedilesse and irrecoverable Therefore we may irrefragably conclude That Governours of a State ought to be very wary in judging of matters of life and not in one tittle to deviate or depart from the known Lawes of the Land lest by committing of irrepairable wrongs upon the persons of their innocent subjects they draw Gods irrecoÌ„cileable vengeance upon themselves in that day when he shall visit the Judges of the earth and make inquisition for the blood of his people spilt by injustice violence and oppression which hee will surely doe according to his own everlasting promise and eternall decree to be executed upon all States to the end of the world And as he did execute it upon Ahab and his posterity and upon Jezebel his wife for the unjust taking laway of the blood of Naboth as you may read 1 Kings 21. chap. 2 Kings 9. chap. concerning Jehoram and Iezebel and in divers other instances evidenced unto us by the holy Scriptures That which Samuel said unto Agag King of the Amalekites As thy sword hath made other women childlesse so shall thy mother be childlesse among other women hath a perpetuall morall use in Gods justice For we may finde a thousand examples where those Princes or States which have sold the blood of their people at a low rate have made but the market for their enemies to buy of theirs at the same price For it was never yet seen that those that dipt their hands in innocent blood went dry to their graves the blood that is unjustly spilt being not again gathered up from the ground by repetance These medicines ministred to the dead have but dead rewards Now as the Lawes concerning life or proceedings therein ought not to be Arbitrary much more concerning liberty For that the laws that concern the liberty of the subject in respect of their object which is the whole body of the people are far more large then those which concern life which lawes are onely relative to offenders and guilty persons and not directly to the whole people and therefore with the more tender regard to the subject to be executed Wherefore all manner of proceedings whatsoever which are Arbitrary and that tend to the taking away of our liberty are most dangerous destructive to the State where such are put in execution For Governours of CoÌ„mon-wealths ought to know this That at the same instant they begin to break the Lawes and to execute an Arbitrary power upon the peoples liberties at that very instant they begin to lose their State For by so doing the Governours draw the Odium of the people upon them and incite the people to find out and invent wayes unusuall and of innovation to free themselves from their oppressors and the execution of such tyrannicall power It is a most sure Rule in State policy That all the Lawes that are made infavour of liberty spring first from the disagreement of the people with their Governours Whosoever therefore sits at the Helme of a State bee it either a Common-wealth or Principality should consider before they execute any Arbitrary power upon the peoples liberties what contrary times by the ill effects of it may come upon them and what men in their troubles they may stand in need of and therefore should live with them alwayes in such manner that upon any accident chancing they may find them ready and willing to serve their occasions For in a Common-wealth well governed it is to be desired That nothing should chance which may call in the use of extraordinary courses For though an extraordinary way in some particular case doe good yet the example proves of ill consequence and will stirre the peoples minds to Jealousie and Commotions especially when it concernes the publique liberty and with that deep impression that having once freed themselves from the oppression of their Governours it commonly falls out that the State determines with the lives of the Governours For the people bite more fiercely after they have recovered
confirmed by the Petition of Right in the 3. year of this King Now for remedy against any man that will infringe this Charter to the injury of any free-man that ought to have benefit of it the party grieved may have an Action vpon the great Charter against the party offending as was brought against the Prior of Oswin P. 2. H. 8. Rot. 538. in Banco Regis and we find in the Register-Book of witnesses fol. 64. a Writ directed to the Sheriffe Adcapiend impugnatores Juris Regis ad ducendum cos ad Gaolam de Newgate to apprehend the opposers of the Kings Charter and to bring them to the Goal of Newgate or the party grieved may indict the Offendor at the Kings Suit for going contra formam Magnae Chartae whereof we find a President in Sheffields case Pasch 3. H. 8. B. R. Or the party grieved may bring his Writ de Odio Astutia de homine Replegiando or Habeas Corpus as appeares by the Register f. 77. and by the Statute of Wesim 2. c. 29. and by the Statute of Glouc. c. 9. as his case shall require Having thus dissected the severall branches of this Great Charter which most eminently concern our publike liberty the birth-right of the free born subjects of England and stated the question thereof We will now with all due regard to the house of Peers examine that judgment or sentece pronounced against that impregnable Bulwark of the common-liberty Lieutenant Col. John Lilburn and the proceedings leading thereunto by the Rules of this lawful judgment or law of the land mentioned in the great Charter professing that as we will be tender not willing to derogate at all from any lawful power jurisdiction or priviledge of that honourable house so we will be as careful in preserving and maintaining our liberties swerving neither on the one side nor on the other from the true narrative of the fact nor the literal declaration of the order sentence as it hath been represented unto us And first we shal shew out of what fountain all the troubles of this worthy Gentleman have sprung which is no other then from his fidelity and love to his Country they have been all occasioned by his prosecution of Col. Edw. King upon certain Articles exhibited against this Colonel to the honourable house of Commons in Aug. 1644. which yet hang there undetermined and which charge the said Colonel with disloyalty infidelity treachery and breach of trust to the Parliament to whom he was a sworn servant and entertained in their pay To prevent this Gentlemans prosecution Col. King did by undue meanes cause him to bee imprisoned July 19. 1645. where being removed to Newgate he remained till the 14. of March 1645. upon which day upon Mr. Recorders motion in the house of Commons hee was enlarged there being nothing objected against him and was by Col. King afterwards caused to be arrested April 14. 1646. as he was going to prosecute and pursue this Colonell for the Publike good and for matters contained in those Articles and to follow his other businesse depending in Parliament For Interest Reipublice ut puniantur rei ne per omissionem unius multi atrociora perpetrent slagitia as Cicero saith It is profitable for the Common-wealth that guilty persons bee punished least by omission of the punishment of one many men by that ill example may be encouraged to commit more heinous offences This Arrest was illegal and a breach of priviledge of Parliament to the house of Commons who were originally possessed of the Cause for all suitors in any Court of Justice at Westrn ought to have the protection and priviledge of that Court where they sue against any that shall arrest them in any other Court for the same matters Eundo morando rediendo which is going thither staying there returning homeward from their prosecution as by 27. H 6. Fitzh pr. 4. and divers other Bookes appears and being put to plead by this unjust provocation to that action he wrote that letter or booke to Mr. Justice Reeve the 6. of June 1646. whereat the great offence is taken and upon which his grand charge was grounded the proceeding was very quick for the 10. of Iune there was a Warrant directed to the Gentleman-Usher attending the Lords house or his Deputy from the Lords to summon him to appeare before their Lordships the next day being the 11. he was summoned and the same day he appeared before the Lords Bar and being brought to the Bar was asked whether he wrote that letter or booke to Iustice Reeve here is an examination ore tenus not usual in Parliament but frequent in Star-Chamber and being earnestly prest in it the same 11. day of Iune he delivered in a paper containing his plea and defence whereupon the same day he was committed by their Lordships prisoner to Newgate for delivering in his plea and defence which they in their Warrant call a scandalous and contemptuous paper being in truth but a recital and declaration of the Lawes Statutes of England that made for his defence and a declaratory of the liberties of all the Commons of England which by law they ought to enjoy and by nature is their proper and free birth-right and the 16. of the same moneth he presented his Petition to the honourable house of Commons against their Lordships proceedings being in the nature of an Appeale to the Commons as his proper and onely Iudges The 22. of June the Lords sent an Order to the Keeper of Newgate to bring Mr. Lilburn againe to their Bar the next day because he refused to kneel at their Barre was the next day being the 23. of June committed close prisoner to Newgate and not permitted to have Pen Ink or Paper and none to have accesse to him in any kind but only his Keeper untill that Court should take further order Where he remained in this condition till the Tenth day of Iuly 1646. which day Serjeant Nathaniel Finch delivered into the said house of Lords certain Articles with certain Bookes and Papers annexed against the said Lieutenant-Colonel JOHN LILBVRN which you have word for word here printed July the tenth 1646. The Charge against Lieutenant-Colonel JOHN LILBVRN as followeth ARTICLES Exhibited before the Lords in Parlia-ment assembled by Nathanael Finch Knight and one of his Majesties Ser-geants at Law against Lieu. Colonell John Lilburne for high Crimes and Misdemeanors done and committed by him I. VVHereas rhe Right Honorable Edward Earle of Manchester by the space of divers yeares last past hath been and yet is one of the Peeres of this Realm And where as the said Earle was by Ordinance of Parliament appointed Generall of divers Forces raised by the Parliament the said Iohn Lilburne intending to scandalize and dishonour the said Earle and to raise discord between the said Earle and other the subjects of this Realm He the said Iohn Lilburne in a certain Book hereunto annexed and
him in safe custody accordingly And that he doth take care that the said Lilburn do neither contriue publish or spread any seditious or libellous Pamphlets against both or either of the Houses of Parliament To the Lieutenant of the Tower of London his Deputy or Deputies And because this Sentence was conceived not to be severe enough by the Lieutenant of the Tower hee did procure an Order dated Die Mercurii 15. Julii 1646. which followes in these words Die Mercurii 15. Iulii 1646. ORdered by the Lords in Parliament assembled That none shall speak with John Lilburn now a prisoner in the Tower of London but in the presence and hearing of his Keeper And that when he shall desire to take the Ayre within the Tower his Keeper shall constantly goe with him forth and back and stay with him till he return to his Lodging and that if his wife desire to come to him she shall reside with him and not go in and out during his imprisonment in the said Tower And lastly it is Ordered That this restraint of speaking with the said Lilburn shall be taken off when he shall give good Bayle to this House not to contrive write or publish any scandalous or libellous Pamphlets or Papers against both or either of the Houses of Parliament Die Mercurii 16. Septem 1646. IT is this day Ordered by the Lords in Parliament assembled That the Lieutenaut of the Tower of London his Deputy and all others imployed him shall permit and suffer the wife of Lieutenant-Colonell Iohn Lilburn to come to him and reside with him when and as often as he shall desire any former Order of this House notwithstanding Iohn Brown Cler. Parliamentorum We will not say their Lordships are unjust in this Sentence yet we hope it shall not be accounted scandall to them if we say and make it appear that they have erred therein both in manner of proceeding and in substance of matter or point of jurisdiction both of the person and cause for we do presume that their Lordships will not presume an infallibility of Judgment it being a quality incompatible to or with any sublunary creatures and wee finde by our bookes of 21. E. 3. f 46. that a Parliament may and hath erred And first we shall declare their Lordships errour in their manner of proceeding against this worthy Patriot wherein we shall observe That the 10. of Iune he was summoned to attend their Lordships in their house The 11. of Iune he appeared and was then committed by their Lordships to Newgate The 16. of the same moneth he appealed to the Right Honourable House of Commons The 22. their Lordships sent to the Keeper of Newgate to bring him to their Bar And thereupon the 43 day he was committed close prisoner to Newgate being brought by the Keeper of Newgate where he remained close prisoner till the 16 of Iuly At which time his Charge was brought into the Lords House and not before Wherein we are first to note that he was summoned and committed a moneth before his Charge brought in and after his appeal and for that cause made close prisoner 18. dayes before any Charge recorded against him All which proceedings are erroneous and principally in these two points First because he was summoned before his Charge was recorded for regularly both in Law and Equity the Declaration or Bill ought to be filed or recorded before any Writ or Processe ought to issue against the Defendant or Party accused either in civill or criminall causes and the Writor Processe ought to contain the matter of the Declaration or Bill as in a Writ of Right These words Quid clamat tenere import a Count or Declaration recorded so a Writ of Warrantia Diei contains the substance of the Count in a Monstraverunt the Plaintiffs title is set forth by the Writ Nay in every Writ at Common-Law the Writ doth by these words ut dicitur or by some other Emphaticall word contained in the body of the Writ import that a Declaration or Count is filed registred or recorded before the Writ doth issue and this appears clearly in every Writ set forth by the Register and Fitzherberts Natura brevium Nay every English Bill either in Chancery Exchequer or Star-Chamber doth pray that Processe of Sub-paena be awarded against the Defendant which proves that processe ought not to be awarded against any man out of any Court till his charge bee recorded against him in the same Court If this was so in the Justice of the Star-Chamber in criminal causes we hope their Lordships will not condemne it as an Injustice in themselves to follow the same Rules of Right Reason Law and Equity Secondly their Lordships proceedings against him after his Appeal made to the honourable house of Commons were void in Law for by the Appeal to the proper jurisdiction the Lords were outed of their jurisdiction or Connusans of the Plea sublata causa tollitur effectus the Cause being removed by the Appeale their judgment thereby was determined or at least suspended being but the effect of the cause before them till such time as the Appeal is determined the Appeal being a supersedas to their Lordships further legall proceedings in the same cause and wherein they ought not to have proceeded without the privity licence and direction of the house of Commons and therefore all their proceedings since Mr. Lilburns Ap. peal presented to and accepted by the house of Commons are Coram non judice and therefore void and erroneous We shall not deny the Lords house to be a Court of Justice and that of Record too and of the highest degree in the Kingdom co-operating with the honourablt House of Commons but when they are distinct and apart in their severall operations and judgments we do conceive that they neither have a legislative nor unlimitted power of judicature in themselves neither can they proceed to determine any thing out of the way of the known Lawes by any arbitrary or discretionary Rules where there is a known Law in the case Sir Edw Cook doth well set forth the distinct powers of Judicatures of both houses in his 4. part of Institutes p. 23. It is to be known saith he that the Lords in their house have power of Judicature and both Houses together have power of Iudicature which is thus to be understood That the Lords have power of Iudicature over their Members alone viz. their Peers the Nobility of England that sit in the Lords House The Commons have power of Iudicature over all the Commons of England by themselves alone and the Lords and Commons joyning have power of Iudicature over both Peers Lords and Commons That this is true is manifest by the Lord Dacres case p. 26 H. 8. reported by Iustice Spilman where it was resolved that a Noble-man of Parliament cannot wave his tryall by his Peers and put himselfe upon the tryall of the Country for by the Statute of Magna Charta c. 29 every
f. 10. Be tit Parl. 42. We find that in Parliament the King would that I. S. shouldbe attainted and lose his Land and the Lords did agree and nothing was spoken of the Commons and this by all the Judges was held no good attainder or judgment and therefore he was restored to his Lands for there can be no attainder by Parliament but by Act of Parliament that is by judgment of both Houses and consent of the King for the King as Sir Edward Cook saith is of the Parliament caput principium finis the head the beginning and the end But some will say that the Lords have a Judicature a-part from the Commons which they have long used It is true they have and it is only in some particular cases and their power is given them by Act of Parliament by the stature of 14. E. 3. c. 5. in case of delay of Justice difficulty of judgment or cases of errours and is confirmed unto them by the stature of 25. El. c. 8. and 31. El. c. 1. But we cannot find by any of our bookes in Law and wee are confident no man can shew us that the Lords by themselves apart or without the assistance and without judgment of the Commons did hold plea in any of those cases before that statute of 14. E. 3. For the first cases that we find of any proceedings in those cases before the Lords were in 16. E. 3. Fitzh tit briefe 561. and in 24. E. 3. f. 46. 22. E. 3. Fitz. error 8. and other bookes out of which good notes may be drawn to fortifie our assertions withall if need in so plain a case did require By all which cases and presidents we may assuredly conclude That the Lords in their House have no jurisdiction over the Commons in any other cases then delay of Justice difficulty of Judgment or matter of Errour as aforesaid And this is agreeable to the statute of 25. E. 3. c. 4. Where it is accorded assented and established that from hence-forth none shall be taken by petition or suggestion made to our Lord the King or to his Councell unlesse it be by indictment or presentment of his good and lawfull people of the same neighborhood or by processe made by Writ originall at the common-law and to the other statutes afore-mentioned and bindes the House of Peers as well as any other Court of Judicature at Westminster as they are of the Kings Councell and sit by vertue of the Kings writ and Commission as they have often by their own Declarations manifested If it be objected that their Lordships being a Court of Judicature are only to proceed secundum legem consuetudinem Parliamenti according to the Law and Custome of the Parliament We answer that we grant that it must be secundum legem according to law which is according to the Great Charter and the laws before cited and as touching the custome of Parliament we say that the Lords house cannot have any pretence by custome to judge a Commoner of England since that it appeares by the presidents afore-mentioned namely Sir Simon de Berisfords case which was 4. E. 3. and by that of the same date cited out of Sir Edward Cooke that before the division of the Houses it was enacted and assented that the Peers for the time to come should not judge a Commoner as being against Law as aforesaid And therefore that Custome being against Law and prohibited by Act of Parliament must needs be void in Law For no Custome that is against Law or an Act of Parliament is valid in Law Neither can they have any good Custom by usage of such power since the division of th Houses though they have actually judged Commoners it being within time of memory since the Houses were divided that is to say since the time of King Richard the first which is the limitation of prescriptions and since which time no good custome can bee grounded the contrary appearing by matter of Record as aforesaid And albeit they have judged Commoners it makes not for them for a facto ad jus non valer argumentum because they have done it in fact therefore they may now do it of right followes not For if those Commoners that were judged by them did not stand upon their priviledge nor demand an exemption from the judgment of the Lords they did only lose to themselves the particular benefit of Appeale for vigilantibus non dormientibus jura subveniunt the lawes only assist those that claime the benefit of them not those that pray not in aid of them and such presidents ought not to be cited in prejudice of others that are more watchfull over their liberties But wee have another objestion made that there is matter of scandall against a Peer of that House contained in Mr. Lilburres Charge and therefore fit to be examined there We acknowledge the Earl of Manchester to be a person of great honour and will not blemish him as he stands unheard with a supposition of his being guilty But neverthelesse we conceive that it would not have lessened his honour to have preferred some Information in the Kings Bench or brought some Action at Common-Law upon some of the statutes de scandalis magnatum for the supposed slander contained in the bookes written by Mr. Lilburn whereunto Mr. Lilburn might have pleaded his lawfull plea either by may of justification or deniall as his case would require him In both which cases Mr. Lilburn should have been tryed by a Jury of 12 honest men Commoners his equals and my Lord have avoyded any suspition of being partiall in his own cause as it is said in the book of 8. H. 6. f. 14. Br. Coâ—â—sans 27. of the Chancellour of Oxford or that he went about by this so sudden and summary proceeding to hinder or fore-stall the evidence that might bee against him in his own cause and Mr. Lilburn had had a legall way for his defence for if he had justified the supposed scandall and proved it it had bin no scandal the Jury must have acquitted him if he had pleaded not guilty and for the words proved against him he must have paid dammage to the Earle as the Jury should have assessed And this had been and is the only way of tryal in such a case and is according to the statute of Magna Charta and the Law of the Land and it is a Maxime in Law That where remedy may bee had by an ordinary course in Law the partie grieved shall never have his recourse to extraordinaries Therefore if a man should say of the Lord Chancellor or Lord Keeper of the Great Seal that he was a corrupt Judge and that he gave a corrupt judgment in such a Cause depending before him upon an English Bill in Chancery The Lord Chancellor or Lord Keepers remedy against that person for this scandal is upon these statutes and not by an English Bill in Chancery before himself to be
proved only by witnesses or the Parliament sitting by the Parliament and not by a Jury being matter of Fact tryable by the course of the common-law Neither doe we conceive that this scandall reflects upon that noble Earl â—f it be so as he is a Member of the Lords house but as a Generall of an Army which employment he had as well from the Commons as the Lords and the rather since one of the Commons is as capable as a Peer of the Lords house of such a Command Therefore we conclude as to the matter and manner of proceeding this sentence upon the Lieutenant-Colonell may be taken to be erroneous both concerning the nature of the cause and the jurisdiction of the Court in respect of the Defnedants priviledge not to be judged by the Lords House being a Commoner of England unlesse the Commons had first enquired of the offence and had transmitted it to the Lords House upon a vote made in their House by information or impeachment together with the proofs taken by them in the Cause but especially after an Appeal made to the House of Commons as his proper Judges But we meet with another objection which is that part of this sentence is for words and contempts acted after his summons to the Lords House and at his appearing there one of which was for not kneeling at the Lords Barre for that we conceive that if hee through the tendernesse of Conscience not to offend God by kneeling to any other power did refuse to kneel at their Barre though it be a custome for those that are brought thither as Delinquents so to do We cannot conceive that to bee a contempt but rather an obedience to him 〈◊〉 he ought to obey rather then men As touching the no hearing of his Charge read it was after his Appeal Plea and Defence delivered in which if that were just and now rest to be determined by the honourable House of Commons and by them so adjudged there could be no contempt in that And therefore till his Appeale be determined wee conceive that part of his Sentence might well have been spared As touching the contemptuous words by him uttered against the proceedings of that honourable Court though we cannot excuse it a toto yet a tanto we may in that they were rather words of heat proceeding from him upon deniall of his Plea and Defence which was his appeale to the honourable House of Commons as his proper Judges and rather issuing from him out of a sence of his conceived injury then a spirit of calumny towards their Lordships We are of opinion that in that sence they might have produced a more mild sentence then to have been his utter ruine since by that sentence he is to have 7. yeares imprisonment the age of a man in the eye of the Law and be made incapable of bearing any Office Military or Civill in the Army or Common-Wealth and to be fined 4000. l. which we think is more then he is able to pay wheras by the statute of Magna Charta liber homo non amercietur pro parvo delicto nisi secundum modum illius delicti pro magno delicto secundum magnitudinem illius delicti salvo sibi contenemento suo If his offence were great yet hee ought to be amerced so as his free-hold contenement or countenance may be saved to him and not to be disabled in his Calling or lodged in the Tower during his life where he now remains Having brought this indomitable Champion for our liberties to the Tower of London wee will shew you his entertainment there He was brought by the Warders to the Lieutenant alias dictus Col. Francis West the Gaoler or chiefe Keeper of the Prison of the Tower of London for so his title is in the capacity of receiving and keeping of the Prisoners committed to his charge This Lieutenant or Goaler after some pause upon reading of the Warrant of Commitment sent him to lodge at a Warders house for his further punishment where he is to pay neere 20. s. a weeke for his lodgeing providing himselfe dyet The Lieutenant forbad his Keeper to let any body at first to come to speake with him and forgetting the rule of Gods word whom God hath joyned together let no man separate or keepe asunder upon this pretence that by the Lords sentence and his Warrant he could not keepe that worthy Patriot from informing the people of their liberties which the said Goaler or Lieutenant called writing of scandalous bookes against the Lords unlesse he kept his wife and his friends from him notwithstanding that Lieutenant Collonel Lilburne offered to engage his word to the said Gaoler not to write any word-book or letter either of or concerning both or either House of Parliament or any thing else of publike concernment so he might have his wife and Children and friends admitted to him according to law and right answer was thereupon made by the same Gaoler That unlesse his wife would stay with him and remaine with him as a close prisoner to be kept within the Tower he cold not permit her to come to him to stay with him or speake with him but in the presence of his keeper the first time that ever we heard that the innocent wife was to be imprisoned and punished for the Husbands offence having at that time no warrant to restraine either his wives or friends coming to him but to colour such his illegall uncharitable and unchristianlike dealings he goes to the Lords and procutes order from them as a superstructure upon the former sentence to keepe this worthy Gentlemans wife from him and not to permit her to stay with him or to speake with him but in the presence of his Keeper O horrible and unheard of Cruelty and barbarisme did not God make woman of man that she might be an helper unto him meete for him Gen. 1. 18. did not God ordaine them to be one flesh did not our blessed Saviour say that God from the begining had made them male and female and that after their marriage they are no more twaine but one flesh doth he not command and is it not an ordinance indispensable That what God hath joyned together let no man put asunder Matth. 19 4 5 6. By what power or authority doth this Goaler take upon him to dispense with nay to change the immutable laws of God our maker and of our Saviour and Redeemer If ye have faith in him doth not our blessed Saviour tell the wicked Jews when they tempted him with this questistion Is it lawfull for a man to put away his wife THAT IT WAS NOT LAWFVLL And that Moses suffered the Jewes through the hardnesse of their hâ—arts to put away their wives But from the beginning it was not so If this were hardnesse of heart for a man to put away his wife though with her coÌ„sent how much more and how much greater hardnesse of heart is it that a woman innocent and