Selected quad for the lemma: lord_n
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A96441
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No martial law, but advice for the grand inquests of London, and Middlesex, and may serve generally for the whole kingdome written by a London apprentice, on the behalfe of his fellow apprentices, 1648.
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Whittington, John.
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1648
(1648)
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Wing W2045A; ESTC R43949
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4,135
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9
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No Martiall Law BUT ADVICE For the Grand Inquests of London and Middlesex and may serve generally for the whole Kingdome Written by a London Apprentice on the behalfe of his fellow Apprentices 1648. Printed in the Yeare 1648. No martiall Law c. Gentlemen LIfe and Liberty are the fevorites of Law of these the King cannot without breach of his Oath deprive the meanest Subject but by legall proceeding which onely distinguish the lawfully executed Malefactor from the untimely murdered innocent So tender is the Law over every mans life so strict in preservation of her owne rules that if the Sheriffe beheads him whom the Law condemned to bee hanged t is Stamf. plea tit felony fo 13. murder in the Sheriffe for the Sheriffe not persuing the judgement and warrant of the Law doth contrary to the Law and thereby murders him whom he should have executed And surely that Law that is so tender over those her owne hand markt out for death as not worthy to live is zealous over such as never transgressed her statutes Offences deserving death are many and many the manners of death differenced onely by the nature of the offence yet for all offences for all deaths there is but one tryall viz By Peeres according to Mag. Chart. the Statutes of 5. Edw 3. and 28. Edw. 3. Mag. Chart. is that no man be imprisoned or diseised of his Freehold or Libertys or Customes or be outlawed or exiled or otherwise destroyed nor wee will not passe upon him nor condemne him but by lawfull judgement of his Peeres or Law of the Land 5. Edw. 3. Cap. 9. is that no man shall be attached nor forejudged of life or lym contrary to the great Charter 28. Edw. 3. cap. 3. is no man shall bee imprisoned nor put to death without beeing brought to answer by due processe of Law These statutes exclude all tryals but by Peeres as for Barons to be tryed by Barons Commoners by Commoners which is our jury of twelve men and Commoners cannot wave their Peeres to be tryed by Barrons nor Barrons theirs to bee tryed by Commoners as was resolved in the Case of my Lord Dances Much lesse may we wave 26. H. 8. the Common Law tryalls to be tryed by Martiall law for that were to consent to selfe murder for Sir Edw. Cooke Cooke 3 part of the Institutes fol. 52. saith that if a Lieftenant or any one that hath Commission to execute Martiall law put any man to death in time of peace this is murder and against Mag. Chart. Times of peace with the ancient Romans were denoted by the shutting of Janus Temple And with us by opening Westminster hall the Chancery the Kings Bench and Courts of justice and therefore in the Case of Thomas 4. E 3. 39. Ed. 3. 42. Ed. 3. numb 13. Co. 2. part of the Institutes fol. 48. Co. 3. part of Instit fol. 52. Earle of Lancaster who was taken in open Rebellion and put to death in the Case of the Earle of Arrundell John of Gaunt and others the proceedings were adjudged unlawfull because by Martiall Law in time of peace when the Chancery the Kings Bench and other the Kings Courts were open If these though Military men and guilty of Crimes the Common Law would punish with death might not bee condemned and executed by Martiall law when the Chancery Kings Bench and Courts of justice were open how could wee then in London condemne and execute by Martiall law Mr. Tompkins a Gowneman Mr. Challoner a Citizen while the Courts of justice were open a Parliament sitting at Westminster a Goale delivery in London Nay while Mack Mahoon and Mack Quier Souldiers were tryed at Westminster by the Common Law condemned executed by the Common Law But the reason is apparent for these men were charged with Rebellion against the King a crime that the Common law doth punish with death Mr. Tompkins and Challoner charged with what the Common law would justifie not call a crime yet because policy not justice would that they should dye therefore the Martiall law must hang whom the Common law would not And upon the same reason Sir John Hotham and his Son though Parliament men were without breach of Priviledge executed by Martiall law Whereupon a Cavaleer said wittily that it was the best peece of bad justice hath beene done since the two houses raigned for when contrary to law the Houses had justified them in treason for keeping Hull from the King it was but fit to hang them when they would not bee so honest as to restore Hull to the King And here give mee leave though with digression to observe to you what another observed to me upon their deaths That as their first act being treason was by colour of Law yet against law justified as legall and they rewarded so their second fact being lawfull was by colour of law yet against law adjudged illegall and they executed And that their sufferings might in justice bee referred to their first fact on the same day the moneth they severally entred Hull on the same day the moneth they severally dyed for young Hotham outriding his Father first entred Hull on new yeares day 1641. But Sir John Hotham whom age and six Wives had detarded did not enter Hull untill the second of January 1641. and therefore on new yeares day 1644. young Hotham was beheaded and Sir John Hotham not untill the second of January Justus es domine justa sunt judicia tua but to returne When these men suffered there was some shaddow some colour for Martiall law For then there was an opposite army on foot in the land but now for these two yeares there hath been no Army no enemy in the Land but the two Houses and their Army all Courts of justice at Westminster freely open yet wee have ouâ— fellow Subjects some murdered some imprisoned others distreined as Robert Arnoll of Collonell Lilbornes Râ—giment executed the fifteenth of November 1647. William Tompson taken from the Parliament doore by Lieftenant Generall Cromwell and by him committed to White hall and after by Martiall law condemned to be shot to death Mr. Pledwell in Fleetstreete hath his goods destrained by Martial power while the Chancery is open the Kings Bench open nay while the Parliament sits that Parliament that condemned the Earle of Strafford for sentencing to death not executing by Martiall law the Lord Mount Norris for billetting Souldiers and taking distresses by Martiall law c. But beyond all these is the Sabboth dayes worke the ninth of Aprill wherein the Lord Mayor and Commissioners for the Militia of London out-acts all the illegallities of Strafford all charged by Mr. Lilborne on Lieftenant Generall Cromwell for the Lord Strafford put none to death and while Mr. Cromwell a Martiall Officer doth but execute Martiall law upon Military men for breach of Military orders the Lord Mayor a Civill Officer drawes out Military men and power to execute a Civill not Military
order these doe not sentence nor destraine they kill their fellow Subjects for while the Ordinance doth direct that such as prophane the Lords day should pay five shillings if above fourteene yeares of age if under their friends twelve pence these shoot and kill without distinction children of nine or ten years of age choose rather to commit murther on the Sabboth then permit children to play at Cat on the Lords day But to finde whether these proceedings by millitary power A breefe and perfect relation of the ans of the Earle of Straff fol. 11. 12. Mr St. Johns Argument be actions of arbitrary and tyrannicall government examine and compare them with the charges against the Lord Strafford where the condemning the Lord Mount Norris by Marshall Law the billiting Souldiers upon Subjects against their will and executing papar Orders by Marshall Law in time of peace is adjudged by this present Parliament a subvertion of our fundamentall Lawes and an introducing of an Arbitrary and Tyrannicall government next if ye examine and compare them with the rule and dictate of our setled and knowen Law to which all military proceedings are opposite and distructive and which if ye countenance nay if ye withstand not ye are guilty of their past Facts guilty of breaking the Protestation the Solemn League Covenant with God to maintaine and protect the Kings person his honour and estate the rights priviledges and liberties of the Subject for all these are in the custody of the Law and if the Law be not preserved all these are violated the Law said Mr. Pym puts the difference Mr. Pym speech against the Lord Straf between good and evill just and unjust our honours lives liberties and estates are all in the keeping of the Law without Law all men have a like property to every thing and every man to nothing for us therefore to execute or permit to be executed this Arbitrary this Tyrannicall government of Marshall Law while the Chancery is open the Kings Bench open and others the Courts of justice open we commit treason murder rapine oppression perjury for saith Mr. Pym Arbitrary government comprehends Mr. Pym speech against the Lord Straf all offences Treason by subverting the Lawes suppressing the old and by force introducing a new government nay new Governours Treason inforcing by Millitary Mr. St John Argument of Law against Lord Straff powers the Kings person from Holmby to New Market Treason in detaining by Military power the Kings Person in prison and forcing papers or ought else from his Person much more in assaulting his Person and surely where his Person is thus indangered his Crowne is not safe his Honour nor Estate preserved when by Martiall Law wee condemne and execute any man that may be tryed by Common Law wee murâ—her him For although the offence deserves death yet dying by Martiall Law which is illegall wee murther him whom the Law would have hanged All free-quarter is Martiall oppession all plunder all distresse by Souldiers rapine and theft all these against Magna Charta against our Petition of Right against our Protestation against our selemne League and Covenant because against our Rights and Previledges You Gentlemen are the eyes the eares the tongues of the County to search out to heare and to informe the Courts of Iustice of these Treasons these Murders these Rapines these Thefts and Oppressions if yee Gentlemen be silent in these Crimes yee make your selves not onely guilty of the past facts but of the like in the future for the impunity of the first invites the second offence which hath so multiplyed these sins upon our Nation that custome hath almost made them lawfull Let therefore your inquiry be speedy and strict not pitying the poore be he Common Souldier or Apprentise nor sparing the rich be they the great Officers of the Army or Major or the Committee of Militia of the City who deserve chiefely to be indited and executed for the late tumult yours is onely the cognizance and presentment of crimes that done yee saved your owne soules the resolution and judgement of Law is the duty of the bench which if the Iudges neglect sin is at their doore Mercy is the Kings and lodge onely in his bosome and if any Rebel sons follow Ahitophels advice and defile their Fathers Concubine may they want what they pretend to give mercy and in their flight meete with Absalons Oake and Joabs gentle dealing while yee as faithfull servants to your David returne to your owne houses and sit under your owne Vines and your owne Fig-trees Per me John Whittington neere Dowgate FINIS