told them I was willing to give the Lords as much Jurisdiction without dispute as they desired to Judg condemn and destroy one another so they would not meddle with me nor my fellow Commoners and I was confident if the Lords distinctly as a single House had any Jurisdiction at all in Law it was but over themselves and as much of which as they please to take I am willing without dispute to grant them the second place That the House of Commons have no judgment or Jurisdiction by Law clearly appears by their own confession in the roul of Parlialiament in the 1. H. 4. Membr 14. Num. 79. which this present April I had under Mr. William Riley the Record-Keepers hand which at the Bar I am ready to produce and which thus in English verbatim followeth The third day of November the Commons made their Protestation in manner as they made it at the beginning of the Parliament and over and above declare to the King That forasmuch as the Judgment of Parliament belongs only to the King and to the Lords and not to the Commons unless it please the King of his grace especially shewed them that the said Iudgment was for their ease and no record shall be made in Parliament against the said Commons that they are or shall be parties to any judgments given or to be given hereafter in Parliament To which was answered by the Archbishop of Canterbury by the Kings command that the said Commons shall be Petitioners and Demanders and that the King and the Lords at all times have had and shall have by right the Iudgment in Parliament in manner as the said Commons have shewed unless it be in Statute affairs or in grants and subsidies or in such things and affairs for common profit of the Kings Realms the King will have their especial advice and assent and that this Order be kept in all times to come And so much at present for the 2d essential of a warrant And now I come to give a touch and but a touch only upon the third ingredient to make a mittimus lawful and that is that it be under hand and seal expressing the office and place of him which makes it unless the party be committed in the sight of the Judg sitting in open Court but there is no seal to mine and therefore it is illegal for I was not in the view of my pretended Judges when they committed me But Mr. Justice Bacon I come to the fourth thing upon which at present as one of the principal essentials I shall stifflly stand which is That the warrants of my Commitments both from Lords and Commons now returned before you are illegal there being nothing but generals laid unto my charge by them which is no charge nor crime in Law and therefore both my warrants wanting a legal and a particular cause in them there is no colour in Law to keep my body in prison by vertue of them Now to prove that Generals are no crimes nor charges in Law though the dayly and continual practises of all the Courts of Iustice in England prove it yet for illustration sake I shall crave leave to alledg some legal Authorities And in the First place I shall begin with the Judgement of Sir Edward Cooke upon the Statute of breaking of prisons made 1 Ed. 2. who in his 2. part institutes fo 591. expresly saith seeing the weight of this businesse touching this point to make an escape either in the party or in the Gealours Fellony dependeth upon the lawfulnesse of the Mittimus it will be necessary to say somwhat hereof First it must be in writing in the name and under the seale of him that makes the same expressing his Office place and authority by force whereof he makes the Mittimus and it is to be directed to the Goaler or Keeper of the Goale or Prison Secondly it must containe the cause as it expresly appeareth by this Act * 25. Ed. 3. Coran 134. and 32. Ed. 3. Coram 248. and 9. Ed. 4. fol. 52. unlesse the cause for which he was taken c. but not so certainly as an indictment ought and yet with such convenient certainty as it may appeare judicially that the offence requires such a judgement as for High-Treason to wit AGAINST THE PERSON OF OVR LORD THE KING or for the counterfetting of the money of our Lord the King or for petty Treason namely for the death of such a one being his Master or for Fellony to wit for the death of such a one c. or for blurgary or robbery c. or for Fellony for stealing of a horse c. or the like so as it may in such a generality appeare judicially that the offence required such a judgement and he there further goes on gives divers arguments reasons scites abundance of law authorities to prove that a particular cause ought by Law to be expressed in every Mittimus or Warrant of Commitment My second proofe to prove generalls are no charge in Law is the deliberate and resolved opinion of all the Judges of England in the 3 yeare of King Iames which was a time of full peace wherein the law had its free currant without the threates of Marciall or the checks of Prerogative arbitrary power and therefore the Judgement is of more weight who in their answer to the 22. object on or article of Archbishop Bancroft and to the whole Clergy of England hath those very words we do not neither will we in any wise impugne the Ecclesiasticall authority in any thing that appertaineth unto it but if any by the Ecclesiasticall authority commit any man to prison upon complaint unto us that he is imprisoned without just cause we are to send to have the body and to be certified the cause and if they will not certifie unto us the particular cause but generally without expressing any particular cause whereby it may appeare unto as to be matter of ecclesiasticall cognizance and his imprisonment be just then we do and ought to deliver him and this say the Judges is the Clergies â—ault and not ours and although some of us have dealt with them to make some such particular Certificate to us whereby we may be able to judge upon it as by Law they ought to do yet they will by no meanes do it and therefore their errour is the cause of the thing they complaine of and no fault in us for if we see not a just cause of the parties imprisonment by them then we ought and are bound by Oath to deliver him and sutable to this is their answer to the Clergies 21. Article which Articles and answers are recorded in 2. part instit fo 614.615.616 My 3. proofe to prove that Generalls are no crimes in Law is out of the 4. part instit fo 39. where the Lord Cooke expresly saith That a man by law cannot be attainted of High-Treason unlesse the offence be in Law high treason for
convert all my zeale to presse all the Commons of England out of all the Counties thereof to hasten up to Westminster to the Lords House and there at their dore susser the Lordn to bore them through their cares as their Vass is and slaves being heir actions clearly and dayly declare they never intended them any freedom Law or Justice and absolutely it is a vaine thing and time meerely lost from their hands to expect any so Judge Roll concluded and said they were upon their Oathes and as Judges of the Law they could do no other bat remand me to prison againe unto which ipaciently stooped and came away but had much ados to get out of the Hall by reason of the extraordinary crowde And the next day sending to see what was entered in the booke about me the Clarke or Regester sents me a paper in these words Munday after five weekes of Easter in the 24. of King Charles Tower of London Iohn Lilburne Gentleman brought here into the Court upon an Habeas Corpus by Robert Titchburne Esquire Lieutenant of the Tower of London and the returne of the said Habeas Corpus being read he being committed by the Lords and Commons in this Parliament of England assembled it is ordered that he shall be remitted O superlative Justice was ever any man committed or remanded to prison before by those Judges that in open Court declare he hath been already almost 2. yeares in prison for nothing and now also they have no crime to lay to his charge which is my case but to draw to a conclusion I desire to fulfill my promise and give you a sight of the returne which thus followeth J Robert Titchbourne Esquire Keeper of the Tower of London according to a shore Writ of our Lord the King to this scedule annexed certifie That Iohn Lilbourne Gentleman in the said Writ mentioned was committed and is detained in my custody by vertue of an Order made the eleveth day of Iuly 1646 by the Lords in the present Parliament of England assembled and then sitting the tenour and scope of which Order followeth in these words Die Sabbati undecimo Iulii 1646. ORdered by the Lords in Parl. assembled That John Lilburn being sentenced by this House shall for his high contempt and misdemeanour done to this high Court according to the said sentence stand committed to the Tower of London for the space of 7. yeares next after the date hereof And that the Lioutenant of the said Tower of London his deputy or deputies are to keepe him in safe custody accordingly And that he do take care that the said L. C. John Lilburn do neither contrive publish or sptead any seditious or libellous Pamph lets against both or either Houses of Parliament Iohn Brawne Cler. Parl. To the Lieutenant of the Tower of London his Deputy or Deputies And further I certifie our Lord the King that afterward to wit upon the 18. day of Ian. 1647. It was ordained by the Commons in the said Parl. assembled as followeth in these words Die Martis 18. Ian. 1647. Resolved c. That the Licutenant of the Tower be hereby required to bring up to the Bar of this House to morrow morning at nine of the Clock L. Coll. Iohn Lilburne his Prisoner Hen. Elsynge Clar. Parl. D. Com. By vertue of which I the said Rob Tichbourn the said Iohn Lilbourn brought up to the laid House of Commons in the said Parl assembled by whâ—â—â— afterward the said Iohn Lilburne was againe committed to wit upon the 19. day of Jan. 1647. to my custody and in like manner is detained by vertue of an order made by the said Commons in Parliament assembled the tenour of which order followeth in these words By vertue of an Order of the House of Common these are to require you to receive from the Sergeant at Armes or his Debutie the body of L. Col John Lilbourne into the Tower of London and him there to detaine in safe Custody as your Prisoner in Order to his tryall according to Law be being committed for treasonable and seditions practices against the state and for so doing this shall be your warrant Dated Jan. 19. 1647. Wil. Lenthall Spâ—â—â—â—â— To the Lieutenant of the Tower of London The said Iohn Lilburn is also detained in my Custodie by vertue of another Order made by the said CoÌ„mons in the said Parl assembled the tenour of which Order follovveth inthese words Die Martis 18 April 1648. Resolved c that the 4. Aldermen of London Col Lilburne for Iohn May and do continue in the Tovvervv thout being removed from thence H. Elsing Cler. Parl. D. C. These are the causes of the keeping and detaining the said Iohn Lilburne in my enstody whose bodie before our Lord the King at the day and place in the said vvrit contained I have ready as by the said vvrit is commanded Robert Titchburne Keeper of the Tovver of Lonodn So deare friend with my service presented to you I rest yours faithfully John Lilburne Tower the 15. of May. 1648. FINIS
ch 8. and freedom from arrests for them and their servants c. during the sitting of Parliament which the Law supposeth not to be long much less seven years which is a destruction to our fundamental rights viz. Annual Parliaments or at least Annual Elections as appears by the 4. Edw. 3. cha 14. 36. Ed. 3. ch 10. both which are confirmed this present Parliament by the triennial act in 16. Car. Rex and yet if any Parliament-mans servant be imprisoned the House of Commons themselves by Law cannot deliver him but it must be by a Writ out of Chancery and the member must make oath that the party for whom the Writ of priviledg is prayed for was his servant at the time of the arrest made all which appears in the Case of one Mr Hall the 22. of Feb. 18. Eliz. whose servant being arrested and imprisoned a Committee of the House reported to the House they could find no presidents for the delivery of him but in the way before mentioned whereupon Mr Hall was appointed by the House to go to the Lord Keeper and to do accordingly And if they cannot deliver one that belongs to themselves and priviledged by the Law of Parliament but not by the known declared Law of the Land nor punish him themselves that in the execution of the Common Law of England broke their priviledges much less in Reason and Justice can they commit or release one that is far remote from them and doth not by priviledg belong unto them the last of which is my present case and therefore no colour in Law hath the House of Commons to commit me to prison And as for the House of Lords the Petition of Right expresly saith That no man ought to be adjudged to death c. but by the established Laws of the Land and the express established Law of the Land is That no Freeman shall be taken or imprisoned or be deseised of his freehold or liberties or free customs or be out-lawed or exiled nor condemned or any otherwise destroyed but by the lawful judgment of his Peers viz a Jury of his Equals of the same neighbourhood where the crime is committed being brought in to answer by due process of Law by Indictment Presentment or Writ original according to the course of Common Law but the Lords are none of my Peers or Equals and therefore are none of my legal Judges nor have not the least Jurisdiction in any case whatsoever in the world over me And though they should have a thousand presidents to shew they have exercised Jurisdiction in the like case of mine they are worth nothing because they are all and every of them against the 29 Chap. of Magna Charta and are therefore expresly declared by the Statute that abolished the Star Chamber 17. Car. Rex this present Parliament to be null and voyd in Law and to be holden for Errors and false Judgments And as for presidents against the Lords and Commons Jurisdiction in my particular case one president against them is of more consequence then a thousand for them and the reason is evident because as Sir Edward Cook often declares all Courts of Judicature are bottomed upon the Law of the Land and it cannot be supposed that any Court can be miscognizant or ignorant of its proper Jurisdiction And for the Lords they have confessed in the 4. of Edw. 3. Rot. Parl. 2. in the case of Sir Simon De Berisford that it is against the Law for Peers to try Commoners and have promised and enacted or at least ordained that they neither shall nor will do the like again though that occasion were superlative viz. about the absolute murther of King Edward the second And Secondly although the Maior c. of the Corporation of Cambridg were by the Kings Writ out of Chancery summoned before King Richard the second in full Parliament and there impeached of horrible Treason committed and acted in levying War against their soveraign Lord and King and being expresly within the Statute of Treasons made in the 25 of Edward the 3. Cha. 2. And though they surrendred up the Charters of Cambridg in open Parliament unto the will and pleasure of the King as forfeited into his hands by their Treason and Rebellion yet as to the point of Treason they by their Councel expresly pleaded that the King and his Lords assembled in Parliament had no Cognizance or Jurisdiction there to medle with Treasons committed by them and saith the Record which under the Register or Record Keepers hand of the Tower I have to shew unto your Honor if you please to have it read they alledged divers reasons therefore and the King and the Lords by their silence allowed of their plea as good in Law and let them go without any punishment there for their notorious Treasons as appeareth Rot. Parl. 5. Rich. 2. membrana 9. num 45.58 59. which is supposed in reason they would never have done if their own consciences and knowledg had not told them that by Law they had not the least Jurisdiction in the world over Commoners in any case whatsoever For if not in Treason the highest then much less in misdemeanors the inferiorest which is the most that ever they layd to my charge And if the King and Lords have not Jurisdiction over Commoners much less the Lords without the King and much less that House of Lords that hath layd the King their fountain of power and honor aside as unfit to be addressed unto any more and yet have not essentially or avowedly altered the Government of the Kingdom seeing by their Writ of summons and all their own Declarations they own nor challenge no power unto themselves but what they derive from him and therefore by their own principles and by the Law it self they have unpowered themselves and totally overthrown and destroyed their Jurisdiction and now cannot legally or rationally be called a Court of Justice or a House of Parliament in any sence as clearly appears by the 4 part Instit chapt High Court of Parliament fo 1.366.46 the King being in Law as Sir Edward Cook there declares the head the beginning and the ending of the Parliament and in reason it is impossible where there is no primitive there should be any derivative and therefore I do positively conclude that the Lords have both by Law and Reason unpowered themselves and destroyed their House from being a House in any sence and therefore have not the least shadow or colour of Jurisdiction over me or any Commoner of England And besides I find in the time of this present Parliament many Presidents of the House of Commons in putting out their extraordinary necessitated power to redeem and rescue the Commons of England out of the devouring paws of the Lords illegal and usurped a Here Judg Bacon interrupted me and told me they could not suffer the Lords to be arraigned before them in that manner that I did and therefore pressed
me to cease all such expressions unto which I replied Mr Justice Bacon I cannot make my legal defence for my self unless I speak against the non-Jurisdiction of the Lords but to shew my respect to you I shall avoyd all harsh words as much as the weightiness of my business will suffer and therefore Mr Justice Bacon I humbly intreat you I may be suffered to go on and then when I have done pass your Judgment upon my defence so I went on Jurisdiction over them as appears First in Colonel Edward King of Lincolnshire committed by the Lords to the Fleet by the power and interest of his then professed adversarie the Lord Willoughby of Parham and upon his appeal to the House of Commons in high affront to the Lords pretended Jurisdiction they released him out of the Fleet about the year 1644. Secondly Captain Macy belonging to Colonel Manwaring of the City of London being upon his guard at the Works seised upon divers letters of the Scotch Commissioners and broke them open about which the Commissioners grievously complained to the Lords who thereupon clapt the said Captain by the heels in the Fleet and my self with divers others being Solicitors for the Captain to the House of Commons they honorably to him and in high contempt of the Lords usurpations delivered him out of prison about the year 1645. and were upon debate to give him a large sum of money for his unjust sufferings Thirdly upon the Lords committing and censuring of me I appealed to the House of Commons and they received my Appeal and ordered me my liberty De die in diem to follow my Appeal which in my understanding is in Law a supersedias both to their Commitment and Judgment Fourthly Mr Richard Overton who affronted the Lords as much as any man that ever came before them and protested to their faces against their Jurisdiction over Commoners and appealed to the House of Commons for Justice against them and after that appealed to all the Commons of England and particularly to the General and the whole Army and yet notwithstanding the Lords approved of his protestation c. against them by delivering him by their special order out of the prison of Newgate without over-ruling him or punishing him or his stooping to them Fifthly his Wife and his brother Thomas Overton walking in some measure in his steps were justified therein by the House of Commons in receiving their Appeals yea and by the Lords themselves by delivering them without any punishment or judgment out of prison and without any their stooping or submitting to them Sixthly these very proceedings were the case of Mr William Larner Book-seller his brother and maid so that laying all the premises together it is undeniably evident that the present House of Lords have not the least Jurisdiction in the world over me or the meanest Commoner of England in any case whatsoever for if not in Treason the highest much less in Misdemeanors the lowest and therefore all their fines upon b Here I was necessitated by reason of the Judges often falling foul upon me to express my self in general words in this manner and therefore all their fines upon any of the Commons of England for not obeying their Warrants or Orders in order to tryals before them and refusing to kneel at their Bat in contempt of their Jurisdiction are illegal and null and voyd in Law and all those Goalers Officers or Ministers that put them in execution are subject in Law to make the party molested satisfaction for their wrongful molestation Sir John Maynard Sir John Gayer Alderman Adams Alderman Langham and Alderman Bunce for refusing to kneel at their Bar are illegal and voyd and null in law and reason both for all the Lords proceedings with them from first to last are coram non Judice and the Lieutenant of the Tower c. liable at Law to make them satisfaction for his unwarrantable executing of their illegal and unbinding Orders and Warrants upon them And indeed to speak the truth of the arbitrary and tyrannical proceedings of the House of Lords they are so illegal and irrational c Here again the Judges interrupted me and told me they must not hear such language of the Lords and therfore prest me to keep close to my exceptions against the return or else they could not let me go on so after I had expostulated it pretty well with them and being in an extream longing desire to come to the main pinch of the business very well knowing I had a smooth but yet a sharp sting for them in the conclusion I told them at their commands I would at present so far obey them as skip over part of my matter and did it to the next line where you shall find this mark ☞ that to set them up in the way they have lately gone in is to pull down all the Judicatures of the Kingdom and to destroy all the Laws of the Land in the destruction of which there is a perfect levelling of meum tuum which is totolly overthrown thereby and it is also a re-edifying of an arbitrary tyrannical unlimited and unbounded Government worse then Empsons and Dudleys Straffords or Canterburies for which yet they all lost their lives many stories higher then ever the Star-Chamber High Commission or Councel Table were which yet were arbitrary enough as appears by the Acts made 17. Car. Rex for abolishing them and indeed it behoves all the rich men of England well to look about them in reference to the Lords For if a company of men by vertue of their being made Peers by the King or his will and prerogative may at their pleasure and wills without all shadow of Law or Justice fine one Commoner of England more then he either is or ever was worth as they have done me upon whom they have set a fine of 4000 l. by the same rule of right reason and Justice they may at their pleasures rob all the rich men of England by Fines of all that ever they are worth yea and by the same reason and justice share it and divide it amongst themselves and so have better places abundantly of it then ever the Earl of Dorset had by being a privy Counsellor and Judg of the Star-Chamber which yet if some that well knew him belie him not was worth many thousand pounds per annum to him in an underhand way and besides if the Lords can persevere and hold on as they have lately begun the King was very unwise to call a Parliament and of and from them to seek for subsidies seeing the workmanship of his own hands the Lords by vertue of their having his prerogative stamp upon them is able to fine by their wills a Commoner of England more then he is worth and therefore may much more legally fine all the Commoners of England at their pleasure a quarter half three quarters or all they are worth and so fill the Kings or their own
of Justice where the cause dependeth And saith Bracton the King can doe nothing but what he can doe by Law So as saith the Lord Cooke the command of the King is as much as to say as by the Kings Courts of justice for all matters of Judicature and proceedings in Law are distributed to the Courts of Justice and the King doth judge by his Justices 8 H. 4. fol. 19. 24. H. 8. chap. 12. and regularly no man ought to be attached by his body but either by proces of Law that is as hath been said by the Kings Writs or by Indidctment or lawfull warrant as by many Acts of Parliament is manifestly inacted and declared which are but expositions of Magna Charta and all Statutes made contrary to Magna Charta which is Lex terrae from the making whereof untill 42 Ed. 3. are declared and inacted to be void and therefore if this Act of Westminster 1. concerning the extrajudiciall commandement of the King bee against Magna Charta it is void and all resolutions of Judges concerning the coÌ„mandement of the King are to be understood of judiciall proceedings a part insti fo 186.187 Therefore Mr. Justice Bacon it is to no purpose for you to tell me I am committed by a higher Court and therefore you cannot legally deliver mee for I aver unto you and have already sufficiently proved it that I am commitmitted contrary to Law and Justice and therefore you being Judges of the Law and not of Presidents grounded upon will and pleasure You are to take notice of nothing but Law and therefore I demand and require my liberty at your hands as my undoubted right and due by Law which you can neither in justice honour nor conscience deny unto me But admit the Lords to be a superiour Court of justice to the Kings Bench in some cases yet if they walke beyond their bounds and limits set them by the Law and meddle with that which by Law they have no Jurisdiction of in that case they are no Court of Justice either to you or me but a company of despisers and contemners of the Law all whose actions and decrees made and done in such cases are but meere affronts unto the Law and unvalid and unbinding either to you or me or any other man in England in disobedience to which they by Law are not capable of a contempt or affront nor cannot legally punish any in such a case either with fine or imprisonment as for instance First if a court of SESSIONS which is a Court in many cases by Law questions me for my Freehould and I give them contemptuous words for medling with that which they have no Jurisdiction of they by Law can neither fine nor imprison me therefore Secondly the same holds good in the COMMON PLEAS which is an unquestionable administrative Court of Justice in divers cases yet if they go about to hold plea of murder before them if the party refuse to answere them It is in Law no contempt of the Court And if the Court shall therefore fine and imprison him it is illegall erronious and unbinding because in Law they have no Jurisdiction of such cases Thirdly and pertinent to this purpose is BAGGS CASE in the 11. Part of Cooks Reports who being summoned before the Mayer of Plimoth in open Court called him cozening Knave and bade him come kisse c. For which the Mayor Disfranchised him and it was resolved in Law that the the Disfranchisment was illegall and the reason of is was because it was not according to Law for that the Mayor in Law had no power to doe it Fourthly sutable to this is the complaint of ARCHBISHOP BANCROFT and the Judges answer to it which said Archbishop in his 22. Article to the Lords of the Privie Counsell in the 3. of King James complaines against the Judges of the Courts of Justice in Westminster Hall for affronting the actions proceedings and Censures of the High Commission Court which was erected by Act of Parliament viz. 1 Eliz. and had power by King Iames his Letters Patents to Fine and IMPRISON and yet as he complaines as you may read 2 Part. instit fo 615. 4 Part. instit fol. 335. The Judges were growne to that innovating humor of late that whereas certaine lewd persons two for example one for notorious Adultery and other intollerable contempts and another for abusing of a Bishop of this Kingdome by threatning speeches and sundry rayling tearmes no way to be endured were thereupon fined and imprisoned by the High Commissioners till they should enter into bonds to performe further orders of the said Court the one was delivered by HABEAS CORPVS out of the Kings Bench and the other by a WRIT out of the Common Pleas and sundry other prohibition have been likewise awarded to His Majesties said Commissioners upon these suggestions that they had no authority to fine or imprison any man c. Which practices and doings the Judges in their answers thereunto justifie to be legall and no more then that which they are bound unto by their Oath for that the high Commission had gone beyond the legall power of their jurisdiction having no power by law to fine and imprison in those cases and therefore the Law being the surest Sanctuary that a man can take and the strongest fortresse to protect the weakest of all it ought not to be denied to the meanest man that demands it against the greatest seeming legall oppressor that act of violence or wrong being most hatefull of all others when it is done by uncontinuance of justice and therefore that man which legally indeavours deliverance from it ought from the judges of the Law by Magna Charta to have it freely without sale fully without any deniall and speedily without delay in which regard the aforesaid Judges did not only justifie their forementioned legall practice but also fall very foule upon the Arch-Bishop c. for taxing the Judges and Iustice of the Kingdom confidently averâ—ing that for lesse scandalls then his c. in taxing the Iustice of the Kindow divers have been severely punished And Sir Edward Cooke in the 4 part of his institutes Chap. of the high Commission Court in causes Ecclesiasticall fo 331.332.333.334 335. instances divers others that for notable Ecclesiasticall crimes were fined and imprisoned by the high Commissioners and upon demanding their right from the Judges of the Courts of Justice in Weslminster Hall they were relieved and released by them by the strength of those nerves and sinewes of the Law Prohibitions and Habeas Corpusses But above all the rest that he there mensions Iohn Simpsons case in the 42. Eliz. is the most remarkable to my purpose which Simpson being accused for committing adultery with the Wife of Edward Fuste over which case by Law the high Commissioners had Iurisdiction whereupon the high Commissioners issued out there warrent to Richard Butler Constable of Aldrington in the County of Northamton for
me that now before them I had said for my self because my adversaries were transcendantly pocent who by their wills and pleasures had in some kind destroyed men of more power and greatnesse then all the Lawyers at the Bar and therefore Sir though I am acquainted with some Lawyers that sometimes plead at this Bar. yet peradventure my respects and obligations may be such unto them that it cannot stand with honour justice or conscience for me to desire them to plead my cause seeing I am confident they cannot do it with safety and for me to expect that from them or put that upon them that in mine owne conscience I do verily believe will be their ruine in their practise and lively hoods when I am not able in any reasonable manner to requite them I should in my owne thoughts render my selfe the basest and unworthiess of men Whereupon Mr. Justice Bacon begun to speake and to make a kind of reply or answer unto divers of the things I had infisted upon and told me that Sir Edward Cooke in the 4. Part of his instituts whom he did see I had very much studied saith That no inferiour Court could meddle to question Judgements of Parliament and after a pretty large speech told me I was committed upon a centence from a Superiour Court whose judgements by Law they neither were able nor could controule and therefore must of necessity remand me back again and after he had done I replyed Sir it is true the Judgements of Parliament is not to be questioned by inferiour Courts alwaies provided they meddle with that which by Law appertaines to the Judgement of the Parliament which the executing of Lawes in the Originall Judgeing and desiding of deferences doth not the least And besides Mr. Justice Bacon you doe not I hope in Law Judge the Lords House singly or the House of Commons single to be the Parliament true it is sir severall statutes in Queene Elizabeths time as the 27. Chap. 8. 31. ch 1. provides That if any find himselfe agreeved by false judgements in the inferior Courts he shall if he please by a Writ of Error sue in the high Court of Parliament which I cannot beleeve in Law is meant the Lords House *âŽ* And it is the most irrationall thing in the world to say that legally no Law can be binding but that which is made by the consent of the King Lords and Commons and yet to prefor a single judgement of the Lords made without all forme shaddow colour or pretence of Law above all the Acts of Parliament made for 3. or 400. yeares together for this I will offer to all the Lawyers in England and challeng them to shew me one Statute or a peece of a Statute to justifie the Lords proceedings against me in Law and I will be willing to lose my head and to bee cut in ten thousand peeces and besides it is most irrationall for the Lords who never pertended to any power but what they derived from the King to immagine or go about to make the world beleeve that they can by their wills destroy all the Lawes of England as in their dealing with me they have done when the King their fountain of power can doe no Judiciall action but by his Courts of Justice and that in the legall method manner or processe of the Law although by Law a thousand times more is given and instated into him then unto all the Lords of England and for the truth of this see the 2. part inst f. 168 186. 187 yea if the King imprison me illegally by his owne Warrant either in matter or form I have my remedy against him at law as appears by the Act that abolished the Star-Chamber and therefore it is the height of erationally to conceive or say that the Lords will shall be Lord Paramount above the will of the King their Fountain and Creator and the power of the Law which is above Him from whom they derive all they have or can pretend vnto and I am sure the law tells me that in the Courts of Justice which is established and bounded by the law and is administred adjudged and executed by sundry Judges and Ministers of the Law is betrusted a full and ample power for tryall of property of lands and goods and for the conservation of the people of this Realm in peace and quietnesse but I am sure by the Judges remitting of me back to prison there is a failer of Justice which the Law abhors and an insufficiency in the Law to deliver me from destruction by lust will and pleasure and therefore without dispute slaves are the people of Eng. in the highest and slaves they must continue if they spedily rouse not up their spirits stand stifly for their rights single for the further and due examination of the said judgement in such manner as is used in erroneous judgments in the Court of Kings Bench but the law gives not the Parliament much lesse the single House of Lords the least cognizance in the world originally to meddle with any thing betwixt party and party and if they doe I am sure by the law in force at this day it is corum non judicii but the Lords originally summoned me to their Bar be for any charge exhibited or any indictment proferred or any visible complanant or prosecutor appearing and their high commission and Spanâ—sh Iâ— quisition-like examined me upon interrogatories and so committed me to prison for which they have no shadow of ground in law Whereupon Mr. Justice Roll stept up confirmed that which his Brother Bacon had already said telling me that the Chancery and the Court of Admirals proceedings were diverse from those statutes I had alleadged as well as the proceedings in Parliament were and yet were Lex terrae and it is positively said he the law of the Land that an inferiour court as ours is cannot reverse the judgment of a superiour Court as the Lords are which we must of necessity do if we should release you which we cannot doe if we would without medling with the merit of the cause from the beginning and then the way ought to be by writ of Errour which said he will not lye in this Court in a Judgment given in the Lords House and therefore you must rest content it had been well for you you had pleaded these things before the Lords in your plea there aaginst their jurisdiction Sir said I I did so and they sent me to prison therfore not only so but in Newgate close imprisoned me therefore and would not suffer my wife to come into the Prison yard so much as to speak with me I also appealed to the House of Commons and solely put my selfe upon their Justice and Judgement but I sound them for almost these two years together deaf both unto Justice Law and reason and now as my last legall refuge I come to you after I have been almost two years in
of the hands of those that are to strong and mighty for thim and that they shall judge righteously betwixt a man and his brother his neighbour in justifying of the righteous and condemning of the wicked without wresting judgement or respecting persons but that with judgement they shall beare the small as well as the great and above all that the Judges shall not be afraid of the face of man for saith he ye Judge not for man but for the Lord who is with yon in judgement and therefore saith he take heed and d ee it for there is no iniquitie with the Lord nor respect of persons nor taking (a) Exod. 18 21. 23.2.6.8 Deut. 1.16.17 ch 16.19 25.1 2 Chro. 19.6.7 of gifts And as God is thus delighted in doing Justice and Judgement so on the contrary side he hath declared he asmuch abhorres those that turne Judgement into wormwoode and ganle and leaves of righteousnesse in the earth and commits mighty sinnes in afflicting the just in taking of bribes and turning aside the poore in the gate from their right (b) Esa 1.23.24 Jer. 5.28.29 22.16.17.18 Amos 5.12 6 12 14. Mic. 3.9.11 Zek. 8.16 17. And that Sir which adds unto my gladnesse is this that now I stand not before Arbitrary Judges which judge themselves bounded by no law or rules either of God or man but are left loose unto the reines of their depraved corrupt lusts and wills by vertue of which I have not a little beene tossed and tumbled from Gacle to Gaole and not for some few houres dayes weekes or Moneths but for some yeares without having any legall crime laid to my charge or ever been brought out unto any Legall triall But Mr. Bacon here I stand before you who are sworne and proper Judges of the Law Yee of the Law of England with that learned Lawyer Sir Edward Coke often stiles a Law of righteousnesse and mercy especially to Prisoners in my case (c) 1 Part. insti Sect. 438. fo 260. 2 Part. instit so 42 43.46.55.56.115.186.189 190.526 4. Part. instit so 168. who have been almost this two yeres imprisoned First By the House of Lords and then Secondly By the House of Commons for nothing as clearely appeares unto you by my Warrants of Commitments which onely charge me with generals and generalls are no charge nor crimes in (d) 2 Part instit so 52.53.315.318.591.615.616 and 1 Hart Book declar pag. 38. 77. 201. 845. and the Votes upon the impeachment of the 11. Members and the Petition of right 3 C. R. and the Act that abolished the Star-Chamber 17. C. R. Printed in my Booke called The Peoples Prerogative Pag. 22. 23. 24. 25. 26. Law but if they were as they are not Yet those viz. the Lords and Commons that made them were never betrusted by the Law to be the executors of the (e) See the 14. and 29. Chapters of Magna Charta and the exposition upon them 2 Part. instit fol. 29.46 c. and the Petition of Right and the Act that abolished the Star-Chamber and Rot. Parl. 5. R. 2. num 45. Rot. Parl. 1. H. 4 Mumb. 14. numb 79. 5. H. 4. chap. 6. 11. H. 6. chap. 11. 23. H. 6. chap. 11. 15. 4. H. 8. chap. 8. 1 2 P. M. chap. 10. 4 Part. instit fol. 25. and 1. Part Booke Decl. pag. 48. 278. Law And therefore Mr. Justice Bacon with all honourable and due respects upon your Office and persons I desire with asmuch brevity as I can to make my defence against both the Warrants of my commitments and I shall crave leave to observe this Method First although I grant that the House of Commons and the House of Lords have by the Law and Custome of England their proportionable power and interest in the making and repealing of Lawes yet I do averre that neither devided nor conjoyned they are not in the least betrusted to execute the Law but your honours and the rest of the sworne Judges Justices of the Peace and the Constables c. are by Law betrusted to be the sole and only executors of it And that no Commoner of England is to be restrained of his liberty by Petition or suggestion to the King or to his Councell unlesse it be by indictement (f) 5. Ed. 3. ch 9. 25. E. 3. ch 4. 37. Ed. 3 ch 18. 38. E. 3. ch 9. 42. Ed. 3. ch 3. 11. R. 2. ch 6. 2. part instit fo 46. and Petition of Right and the Act that abolished the Starre-Chamber or presentment of good and lawfull men where such deedes be done and no Commoner of England is to be past upon to lose either life limbe liberty or estate but by legall Tryall by a Grand Iury and Petty Iury of his peers or equalls which Sir Edward Cooke calles the ancient and undoubted Birth-right of an Englishman 4 part insti fol. 41. before a sworne Iudge of the Law in the ordinary Courts of Justice the proofes to be in cases of Treason c. by two sufficient witnesses at least plaine and upon their Oathes (g) See the 14. and 29. Chapter of Magna Charta and 2. part instit fo 29.46.50 and the Petition of Right and the Act that abolished the Starre-Chamber and the case of the Corporation of Cambridge Rot. Parl. 5. R. 2. Num. 45. and the notable Plea of A. B. a Citizen of London pag. 24. and 5. part insti fo 25. and 1. Ed. 6. ch 12. and 5. and 6. E. 6. ch 11. and 13. Eliz. ch 1. And Mr. Iustice Bacon by Law a Lord of the Parliament is not so much as to be of the Jury of a Commoner as learned Sir Edward Cooke declared 1 part insti sect 234. fo 156. and if by Law he cannot be of his Jury much losse can he be his absolute Iury and Iudge both And also by the Act that abolisheth the Starre Chamber this present Parliament 17. Car. Rex it is firmly and strongly inacted that all Lawes Orders Ordinances Iudgements and Decrees made in deminution of the 29. Cha. of Magna Charta and the Lawes before recited are and shall be null and void in Law and holden for errour and therefore at present to conclude this point about jurisdiction I shall winde it up with Sir Edward Cookes words in his proeme to his 4. part institutes viz. That the bounds of all Courts are necessary to be known for as the Body of a man is best ordered when every particular Member exerciseth its proper duty so the body of the Common-wealth is best governed when every severall Court of justice exempteth his proper jurisdiction But saith he if the eye whose duty is to see the hand to worke the feete to go shall usurpe and increach one upon anothers workes as for example the hands or feet the office of the eye to see and the like
where there is no law there can be no transgression Rom. 4.15 he ought not to be attainted by generall words of high treason by authority of Parliament as sometime hath been used but the high treason ought to be specially expressed seeing that the Court of Parliament is the highest and most honourablest Court of Justice and ought as hath been said to give example to inferiour Courts And besides all this seemes to me to be clearly and evidently held forth by those 2. notable statutes viz. The Petition of Right 3. Car. Rex the Act that abolished the Starre-Chamber in 17. Car. Rex So that from all that hath been said to this 4. head alone I am confident I may in Law challenge my liberty and freedom from your honours hands without bayle as my undoubted and unquestionable right by Law and which you neither can nor ought by Law to denye unto me seeing that by both the Warrants of my Commitments I am rendred a just and an innocent man there being by them not the least pretence of a legall crim laid unto my Charge for Generalls is as is already fully proved no Charge nor crimes in Law And also hath been so adjudged and declared by the present two Houses of Parliament as if it were requisite I could particulerâ—â—se fully unto you 3. instances at present I shall only give you viz. the 5. Members and the Lord Kimbolton and the Lord Major Pennington and the late 11. Members whose cases you may reade 1 part Booke Decler pag. 38. 77. 201. 845. but being I am here principally to pleade Law and not Ordinances I shall forbeare to inlarge my selfe thereupon and yet before I conclude shall with your Honours leave speake a few words to the fift and last ingredient to make a Mittimus lawfull Viz. That it have a legall conclusion in these words and him safely to keepe untill he be delivered by due course of Law and not for 7. yeares nor untill the party committing doth further order which legall conclusion is wanting in both my Commitments and therefore illegall Which most desperate CoÌ„mitments being illegall in all the 5 essentialls I may call and doe call them impoysoned Arrowes shot through the principall vitall of Englands liberty but here both the Judges interrupted me to the purpose and would not let me goe on with my Retorick so that I was necessitated for leare I should not be suffered to plead my conclusion which I looked upon to be the strength of all my work therefore was forced to skip over divers leaves to the objection and the cheife authors of them not deserving to be named or stiled the patrons of their Country no not so much as well wishers to the liberties thereof for here is Law equitie and Justice dethroned and absolute will or blinde lust challinging the proper imperiall seate of England the Commitments drawes the black line over the name of Englands Freedom yea the line of confusion upon the Kingdom if the Parliament or both Houses shall thus actually avow that they are to governe loose without the restraint of any lawes mocking the Kingdome thereby in making Judges to execute the Law yea and absolved from all Laws of government as though it were in their power to dispose of the persons of all the people of England at there will and pleasure the granting or challenging of which can be no lesse then the absolute distroying of all the mutuall relations and dependancy in a Kingdom or common wealth yea the levelling of all termes of destinction betwixt ruler ruled yea hereby the very foundation of property of meum tuum is totally overturned no man can call any thing he possesseth his owne for my person is nearer to me then my Estate and he that at his will may dispose of my person may much more at his will and pleasure dispose of my Estate And therefore Mr. Justice Bacon this manner of imprisoning is no better then a two edged sword whereby the liberties of England is mortally wounded if not actually cut in peeces and the Prime Authors of these Commitments in the eye of God and all rationall men deserve the highest exempliariest of punishments in thus subverting the very bases and foundations of government so unavoydably imbroyling the Kingdom a new in Warrs to preserve themselves from totall vassellage or distruction especially considering that they themselves have done these things after they themselves have chopt off the heads of Straford and Canterbury for the very same things and therefore by the strength of reason if there were no other law in being they deserve their own executed punishment Againe the Law never instituted a Goale for punishment and destruction but for a place of safe keeping of a criminall person that could find no better bayle where he ought to be kept and intreated with all humanitie civillity and respect till he be brought to a speedy tryall all Goales in England by Law being to be delivered 3. times a yeare at least or more oftener if neede require * 1 part instit lib. 3. ch 7. Sect. 438. fo 260. and 2. part instit fo 42.43.115.186.189.315 and 3. E. 1. ch 25. But I have been almost two yeares in prison and never to this houre had any legall Crime laid unto my Charge nor cannot be suffered to come to a legall Tryall though to my extraordinary expences toyle hazard and trouble I have indeavoured it withall my might but cannot be admitted to have any benifit of the law which I do averre is the highest of tiranny being kept in Goale in a languishing condition worse then anysuddaine death being ever dying and yet not dead And therefore I do positively averre that the Arbitratiness of the Conclusions of my Commitmants is that wich strikes the Fatall Stroke through the heart Roote of Freedome and Justice yea it overturnes overturnes the Foundations of the Kingdome this very sivgle act if drawne into president hath a seminall vertue in it whereby is contained in its selfe all the distinct species of injustice whereof the Sun was ever yet spectator Yes this arbitrary Commitment doth Ipse facto enervate yea evanuate null all established lawes of the land renders all rowles records no better then waist papers fit for nothing but to light Tobacco Pipes for to what purpose serves Magna Charta the Petition of right and other wholsom Lawes which say no man shall be imprisoned past upon c. or any other wayes destroyed but by the Lawfull Iudgement of his equalls or by due processe of Law when as the rule to punish supposed or reall transgressors shall be mens wills lusts as in my case by my Commitments c. it is so that if 500. men shall assume and arrogate to themselves the absolute dominion over the people of the Land then it may be England shall have 500. distixct lusts unto which they must conforme their actions And sure I