Note: This is part of the Leveller Collection of Tracts and Pamphlets.
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T.137 [1648.02.17] John Lilburne, The Peoples Prerogative and Priviledges (17 February, 1648).
John Lilburne, The Peoples Prerogative and Priviledges, asserted and vindicated, (against all Tyranny whatsoever.) By Law and Reason. Being A Collection of the Marrow and Soule of Magna Charta, And of all the most principall Statutes made ever since to this present yeare, 1647. For the preservation of the peoples Liberties and properties. With cleare proofs and demonstrations, that now their Lawes and Liberties are nigher Subvertion, then they were when they first began to fight for them, by a present swaying powerfull Faction, amongst the Lords, Commons, and Army, that have already de facto, levelled our Lawes and Liberties to their Arbitrary and Tyrannicall Wills and pleasures, so that perfect Vassalage and Slavery (by force of Armes) in the nature of Turkish janisaries, or the Regiments of the Guards of France, is likely (to perpetuitie) to be setled, if the people doe not speedily look about them, and act vigorusly for the preventing of it. Compiled by Lievt. Col. John Lilburne, prerogative Prisoner in the Tower of London, and published by him for the instruction, information and benefit of all true hearted English-men.
London, Printed in the yeare, when some of the mercinary Officers and Souldiers of Sir Thomas Fairfaxes Army, that were pretendedly raised for to fight for the Liberties and Freedomes of England, avowedly drew their Swords at the House of Commons doore, to destroy those that really stood for their Lawes and Liberties, 1647.
This tract contains the following parts:
17 February, 1648
TT1, p. 593; Thomason E. 427. (4.).
To all the peaceable and well minded people of the Counties of Hartfordshire and Buckinghamshire, who desires present peace, freedome, justice, and the common right and good of all men, but more particularly, to all those honest Nown substantive men, that were the promoters and managers of that affectionate Petition for my self, and Mr. Richard Overton, to the House of Common, (about 12. moneths agoe, which is printed in the 10. and 11. pag of the second edition of our book called the Outcryes of oppressed Commons.) But in a most especiall manner to my honest friends, in and about Watford, that lately were in trouble severall Sessions at St. Albans, for not comming to their parish Church to heare Common prayer, &c.
WOrthy Gentlemen, and dearest Country-men. The sencible knowledge of the sufferings of you last named, by your severall times sending to me, and comming to me for advice, drew out my heart according to my weake talent, to bend my braines to the study of something that might be for the effectually future good of yours, (to whom I have so many indeared obligations,) and all the rest of your neighbours, which I here present unto your courteous acceptation in this following discourse, or small collection of Statutes, being necessitated to acquaint you, that J have not a little been tossed and tumbled by the mallice of corrupt minded men (who because their deeds are evill, and therefore cannot endure they should come to the view of the Sun) and the presses have been as much as I, or else you had some weeks ago had it presented in print to your view, but being (upon the 19. of Ian. last,) by the House of Commons clap. by the beeles for traiterous and seditious practises against the State, that is to say (as I interpret it) for my carnest and honest endeavouring to promote a righteous, iust, and gallant petition (for the good of my poore Country) which I sent unto you some weeks agoe with a letter, which letter is partly for my vindication, I am necessited bert to insert; which thus followeth virbatum.
WOrthy Gentlemen and deare Friends. The fervency of your love to me, and your endeavours for my freedome, by petitioning the Parliament, hath taken such deep impression upon my heart that I cannot but often renew my thankfull acknowledgement, and study to serve you in particular, while I endeavour to serve my whole Country in Generall. And truly the best service that I can doe you in this iuncture of time, in my opinion is to study your peace: For if the red Horse of Warre should againe enter into our gates, the paile Horse of famine will certainly tread upon his heeles, and then nothing can be expected but desolation, now the only effectuall meanes to establish your peace, is the healing of divisions and that only can be effected by uniting in the common principles of freedome and iustice, and for that end is the Petition which I have sent you framed, certainly if all the people did but heare the freedome which we petition for opened. And if you did informe them, that those you account the price of your blood, and that you should never disagree nor think any thing worth a war, if those principals of freedom & justice were setled, & if it were cleared to them of how great concernment it is to gaine the speedie settlement of those, if I say some paines were taken in this way, I am perswaded all people would ioyne together as one man, to cry uncessantly to the Parliament for establishing those foundations of iustice and freedome, that their peace might be secure to them.
O, my friends, that God would give you light and power, to see and endeavour after the things which belong to your peace and freedome, before they be hid from your eyes, there is now an opportunity and if this be neglected, I feare God will not betrust us with another, and in reason if we doe not act speedily and vigorously it will be impossible to prevent Warre and confusion. Now in your actings in this businesse, I desire if my advice might be of any weight with you.
First, that in such places as you cannot gaine liberty to have the Petition read on the first day in the week in the meeting house, there desire as great a meeting of the people some other day as you can get, and read the Petition, and explain it, and then select some active men as Trustees, to take care for gaining subscriptions. 2. Engage as many persons as possible you can, to come to London with the Petition, and to try resolutely to the Parliament, Iustice, Iustice, and we intend to give you notice when we intend here to deliver it, that at the same time you may come up. 3. If you can chuse an Agent to reside here at London constantly to give you constant Intelligence of all affaires and to send you books for your information, bought by a publique stock, which you should be trust with your Agent, J conceive this would be of great concernment to your peace and welfare. I have no more to trouble you with at present, but only to tender you the service of. London this 8th. of Janu. 1647.
Your most faithfull servant that now
againe earnestly desires you with all your might to promote
WHen Israel would turne their backs upon God, (who alone was their King, 1 Sam. 10. 19. & chap. 12. v. 12. 17. 19.) and be like all the Heathen and Pagan natitions round about them, to have a King to rule over them. Deut. 17. 14. God himself layes this expresse command upon them, that they shall in any wise set a King over themselves, from amongst their brethren, and that they shall not in any wise set a stranger over them, which is not their brother, but (saith God) he shall not multiply Horses to himself, nor cause the people to return to Ægypt (that is to say, to vassalage, slavery, or the house of bondage.) Neither shall he multiply wives to himself, that his heart turne not away, neither shall he greatly multiply to himself, silver & Gold.
And it shall be when he sitteth upon the Throne of his Kingdome, that he shall write him a copy of this law in a book, out of that which is before the Priests the Levits. And it shall be with him, and he shall read therein all the dayes of his life, that he might learne to feare the Lord his God, to keep all the words of this law, and these statutes and do them. That his heart be not lifted up above his brethren, (marke that well) and that he turne not aside from the commandement, to the right hand or to the left. Deut. 17, 15, 16, 17, 18, 19, 20.
Here is a cleare declaration by God himself, that Kings (the single greatest of Magistrates,) are not to walke (and act upon the people) by the rules of their own wills, but by the law of God, which is as binding to them as the meanest of the people, (and for my part I say and aver, that, that man (whether King or Parliament man) that declares himself to be lawlesse, was never in that condition of Gods creation but of the Divils (And pertinent to this purpose is the complaint of our antient English Lawyer Andrew Horne, in his Mirror of Iustice in English, ch. 5. Sect. the first, division the first, and second, pag. 225. where complaining of the abusions of the Common law, he saith, the first and chiefe abusion is, that the King is above the law, whereas he ought to be subiect to it, as it is contained in his oath. Which as Sir Richard Hutton, one of his own Iudges in his Argument in Mr. Iohn Hampdens case against Ship-money, pag. 32. (which argument was made before this Parliaments doctrine was broached) saith, that by the Kings Oath, he agrees to give consent to such lawes, as shall (in Parliament) be propounded for the profit and good of the Kingdome, and he further declares, that he is to rule and govern thereby, see also the petition of Right in the following pages, 1. 2, So that by this it clearely appeares, that in his own imagination, nor the opinion of his Iudges, he is neither omnipotent nor unlimited, but his office is an office of trust, conferred upon him for the good of the people. And therefore saith our forementioned Author (Andrew Horne ibim.) the second abuse of the common Law is, That whereas Parliaments ought to bee for the salvation of the soules of Trespassors, twice in the yeare at London, that they are there but very sildome, and at the pleasure of the King, for subsidies and collections of Treasure, &c. And the Act made the first yeare of this Parliament, in the 16. of the present King, called an Act for the preventing of inconveniences hapning by the long intermission of Parliaments, expresly saith.
Whereas by the Lawes and Statutes of this Realm, the Parliament ought to beholden at least once every yeare, for the redresse of Grievances &c. Which Lawes and Statutes are the 4. Ed. 3. 14. & 36. Ed. 3. 10. (which are printed virbatim in the following discourse, pag. 9. 12.) and which are expresly ratified and confirmed to be duly kept and observed. In which Acts the Parliament are prescribed their worke what to doe, which is to maintaine the Lawes, and redresse the mischiefes and grievances that dayly happen, but not in the least to our destroy Lawes, unlesse they give us letter for them, nor to make our mischiefes and grievances greater, nor to rob and poule the Kingdome of their treasure by taxations, Excize, &c. and then share it by thousands and ten thousands amongst themselves, which is expresly against the Lawes of the kingdome, for Fee [Editor: illegible word] in trust, (and they are no more at most,) by the Law of this Land, can give nothing to themselves, and therefore their sharing (as daily they doe) the Common wealths money amongst themselves, is no better then absolute state robbery, against whom an indictment, or an Action of recovery, (if not of death†, ought in equity and reason to lye as well as against robbing and cheating servants and stewards. And for them for ever to shelter themselves from the lash and stroak of justice, or for ever from being called to accompt, for all their Cheats, Robberies, and murthers, by getting the Kings hand to an Act to make them an everlasting Parliament, no more lyes in the Kings power Justly and legally to do, then to give them power to make usual absolute Vassels and Slaves, and to destroy all our Lawes, libertys and propertys, and when they have so done, then to cut the throats of all the men in England besides themselves, therefore it behoves the people to keep up the interest of a Parliament, but yet annually at least to chuse new Parliament men, to call their predicessors to a strick accompt, and for my part I conceive that not onely by the rules of equity and reason, but by the strength of the Law of the land, (which requires a Parliament to be chosen and held at least ouce every yeare) the people that are willing in the severall Sheires, Cities and Burrowes, may call home their Parliament men; and send new ones in their places to call them to accompt; and to make Laws to punnish such betrayers of their trust, as men, as full of unnaturalnesse, as those that murder and kill their owne fathers; which is an act abhorred even amongst bruts, and yet this very thing is acted upon us by the grandees amongst our trustees; who themselves have told us, that it is as old a law, as any is in the Kingdom, that the Kingdome never ought to be without a meanes to preserve it selfe, 1. part book decl. pag. 207. & pag. 690. And that those things which are evell in their owne nature, cannot be the subject of any command, or induce any obligation of obedience upon any man, by any authority whatsoever, 1. par book pecl. pag. 201. & pag. 150. And therefore, the conclusion that I draw from Gods subjecting of all men equally alike to his law, is by way of advice to all my Countrymen, earnestly to prosecute the obtaining the things desired in the 3 first heads of our great Petition especially (for promoting of which, I am lately as a trayter committed by the House of Commons) that the powers of King, Parliament and people may be destinctly and particularly declared and setled, that we may be no longer in confusion, by having the little ones to be subject to the punishment of the law, & the great ones to be (subject to none, but their lusts & the law of ther own wils, & therfore I do with confidence beleeve those expressions of my imprisoned Comrade Mr. Iohn Wildman in the 11. pag. of his late masculine English peace called truths triumph or treachery anatomized, where he saith, that he beleeves the freedome of this Nation will never be secured, until the extent of the power and trust of the peoples representatives, and the peoples reservations to themselves be clearly declared in reference to the Legislative power.
And for my particular, after the grand and superlative Apostacie of so tall a Caeder as Lievt. Gen. Cromwell† pretended to be, for the liberties and freedomes of the people of this nation? I shall never hereafter in state affaires, (for his sake) trust either my father, brother, or any other relations I have in the world, but shall always to all I converse with, inculcate the remembrance of that deare experienced truth or maxime, recorded in the margent of our forementioned large Petition, which is “That it hath been a maxime amongst the wisest Legislators that whosoever meanes to settle good lawes, must proceed in them with a sinister opinion of all mankind, and suppose that whosoever is not wicked, it is for want only of the opportunitie, And that no state can wisely be confident of any publique Ministers continuing good, longer then the rods is held over there heads.
Now as God hath made all men subject to his lawes alike, so in the.
Second place, he hath been very sure, positive, and plain in his lawes: see Gen. 2. 17. and 9. 5. 6. Ex. 20. see also the the 10. 11. 13. 14. pages of my Epistle to Iudge Reeves edition the 2. where these particulars are largely and pithly discursed.
But Iuglers, deceivers, deluders, and Tyrants’s study how to make their Lawes ambiguous and doubtfull, that so the people may continually be together by the eares, in the true understanding of them, that so the mysterious and jugling lawyers (who are the principall makers of them) may under pretence of opening them, continualy pick the peoples pockets, with a kind of Hocus Pocus or Clenly conveiance; and have made them so voluminous, that it shal be almost impossible for an ordinary man ever to reade them over, or if he doe reade them over yet, it shall be impossible for an ordinary braine to carry all the contradictions of them, one against another in his head.
Thirdly, God gave all his lawes, and the proceedings therein to his people, in their owne mother tongue, and commanded them to teach them to their Children and Servants (and that their Iudges that did execute them, should sit openly in the Gates) and judged it farre below, and beneath that Iustice that is inherant in him, to give his Lawes, or any proceedings in them; so unto his people, that it was impossible for the most of them, to know them, read seriously for proofe hereof. The forementioned pages of my Epistle to Iudg Reeves, for writing of which al my present troubles are come upon me.
But juglers, deceivers, deluders, and tyrants, will have their lawes not in the peoples mother tongue, but will have them put into Lattin, or French; that so the people that are governed by them, may never come to understand them,* that so their lives liberties and estates may be at the wills of those that ride and tyrannise over them, (as Mr. Daniel in his history well observes the people were in Will, the conquerours time,) and if possible they git their pleadings to be in English, as the people of this Kingdome did theirs (with much strugling in Edward the thirds time) as appeares by that remarkable statute of the 36. Ed. 3. chap. 15. printed in the following discourse page 12. yet they shall be fettered with this bondage, that their [Editor: illegible word] proces, and procedings shall be in Lattin, and that in such a hand, that not one lattin scholler in twenty shall reade them, and if any follow the command of God, to teach the people the understanding of their Lawes; O cry the knaves and tyrants like Bishop Gardiner in the book of Marters, open this doore and we are all destroyed; and therefore by any meanes suppresseall such schooles as Henry the third did those schooles, that were in his dayes set up to teach the people the knowledge of Magna Charta; as Sir Edward Cook well declares, in the 3. page of his proeme to his 2. part institutes. And therefore it is that those makke bate firebrand Lawyers in the House of Commons; have bin so transendently active, to burne and crush in peeces all such honest, and just petitions as have desired our lawes and proceepings therein, may be put into a short plain and easie to be understood method in the English tongue, yea and have made it their study, to grinde to powder the promoters of all such iust & honest, petition as they and their accomplisses lately did in Mr. Iohn Wildmans case and mine, and indeed to speak truly without feare, they are the grand supporters of all corrupt interests in the Kingdome, that make it their study to keepe the people in bondage, and vassolage, and therefore O ye Commons of Enland as one man cry out by petition, speedily to the Parliament; to throw them all out of the House as unsavery salt never to sit there any more unlesse as assistance, who I will maintaine it with my life, have been and still are, (for the preservation of their owne corrupt interest) no small instruments, in the by past and present subversion of our liberties; and occasion of the blood shed, and late warre in the Kingdome, and the main hinderers of the granting, setling and accomplishing, of those many just and righteous things that hath so often bin petitioned for to the Parliament, though hither to all in vaine. O therefore cry, and cry mightily against them as the vermine of the House and Common-wealth.
But because I have longed and still doe, to have this collection abroad, I shall draw towards a conclusion: and let my Country men here reape the benefit of the answer I sent to the querys of some of my friends, mentioned in the Epistle Dedicatory (which was the originall and principall occasion of my compiling this book) which thus followeth.
By the statute of Westminster the first, made in the 3. of Edward 1. chap. 26. (which you may reade verbatim in the 7. page of the following collection) their are no fees due from any free man of England to any Officer of Iustice whatsoever, but what they have immediatly from the publique treasure of the Kingdom, for ther sallories or wages; and it is against a Iudges Oath to take any: whose oath you may at large read in the 10. page following, read also that remarkable page in the merror of Iustice pag. 258. 233. for the proof of this, but especially read the marginall notes in the 69. page following and he that exacts any, shal by the formencioned statute pay back again twice as much &c. but it is true by some latter statues (as the 23. Hen. 6. chap. 10. which you may reade verbatim in the 18. 19. following pages) and 33. Hen. 6. 12. and 21. Hen. 7. 17. &c.) there are some small fees to be paid. And also Sir Edward Cook in the 1. part of his institutes (lib. 3. chap. 13. sect. 70. fol. 368.) saith such reasonable fees as have been allowed by the Courts of justice of an ancient time, to inferior ministers and attendants of Courts for their labour and attendance if it be asked and taken of the subject it is no extortion.
But there is none at all due for entring and recording of apperance, nor for the removing upon a Certionary.
But against Sir Edward Cooks opinion in this particular, I offer this to consideration, that by the Petition of right the King himselfe with all his Lords, cannot justifiably lay a penny upon; (nor take a penny from) the meanest man in England, without common consent in Parliament and if the King &c. the greater cannot doe it, then undeniably the Iudges or justices the lesser can much lesse doe it. And besides by the same right, that under pretence of dues or fees by their arbitrary wills and pleasures, they take one farthing from you or me, they may take a penny, yea a shilling, ye a pound, yea a thousand pound, and so ad infinitum, and so Levell and destroy al property of meum & tuum; [see for the power of an act of Parliament, the notable arguments of Iudg Hutten & Iudg Crooke in the case of ship money, but especialy the Parliaments votes annexed to those arguments] for which very thing divers of the Iudges in the case of ship money, were this very Parliament impeached of Treeson, and the Bishops for makeing their cannons by the Kings single authority to binde their Cleargies pursses without authority of Parliament, were for that and the like defunct of all their power†.
a. The presentment is often brought in English; but it it must be entred and recorded in lattin by the statute of the 16. Ed. 3. 15. which you may reade in the 12. following page and no processe is to be awarded, but if the presentment is entred and recorded in lattin; &c. the presentment must mention the offence, and so must the writ or processe, as clearly appeares in the last forementioned most notable and remarkable stature; see also Sir, Edward Cooks second part instituts upon the 29. chap, of Magna Charta fol. 51. 52. 53. see Vox plebis page 37. and the merror of Iustice chap. 5. sect. 1. division 98. page 238, nay the last author (in his 233. page division 71.) saith that it is abuse of the Common Law, that any plaint is received to be heard without sureties present, to testifie the plaint to be true.
3. The Iustices siting upon the bench, may verbally commit a man for an offence Iying under their cognizance, but there must be a Mittimus or Commitment entred upon Record: See the 14. Henry 7. fol, 8. in Sir, Thomas Greenes case. See also the 70. page of the following discourse.
4. The Iustices of peace cannot continue a man bound above two or three Sessions at most, and if they continue him more, they may as well continue him for thirteen, and so for thirteen score, for it is a vexation, and the Law gives him remedie, by an action of the case, against the Iustices, wherein they shall be fined to the King for the vexation, and pay damages to the partie Plaintiffe.
5. An Indictment for extortion, must be in the proper County before the Iustices of Oyer and Terminer, or Iustices of the peace.
6. Vpon an arrest, the Officer must declare at whose suit, for what, and what returne the processe hath, see the Countesse of Rutlands case of arrest, in the sixt part of Cookes Reports.
7. For a Plea against an Indictment, for not comming to Church to heare Common Prayer, &c. It is framed to your hand, in the 20, 21, 22, 23. pages of my large Epistle to Col. Henry Martin of the 31. of May, 1647. called Rash Oaths, to which I referre you.
8. Though you be committed justly and legally, be sure as soon as you are committed (if possible you can) proffer legall Baile, in person to those that commit you, but for this I wholly referre the Reader to the 70, 71, 72. pages of the following discourse, in which I have given some directions to my Country men, how to guide themselves by the rules of the Law of England, in all ordinary molestations that can befall them, by Knaves malicious men, or Tyrants, saving in the point of panniling of Iuries upon them, in case they come to any triall for their lives, &c. and for that point, I doe wholly referre the Reader to the 24, 25, 26. pages of my notable book called the Resolved mans resolution (where also the cheats and illegallities of Committees procedings are anotamised) and to the 1. part of Sir Edward Cooks Inst. lib. 2. chap. 12. Sect. 234, fo. 156, 157. and his 3. part fo. 32. 33. My labours herein I [Editor: illegible word] may find a courteous acceptation at the hands of my oppressed friends and Country-men, and I have my reward, and shall therein reioyce, and be incouraged for the future improvement of my poore talent to doe them further service.
From my causelesse captivitie in the Tower of
London, upon a now account, this 17, of Feb.
For upon the 19. of Ian. last, the House of Commons committed me to prison, as their prisoner, for treasonable and seditious practises against the state. And unto the power of the House in committing me J stooped, but at their doore desired to be committed by a legall Warrant, which by their own Law (published in Sir Edward Cooks institutes) Votes, and Ordinances, all warrants of commitments whatsoever ought expresly to containe the certaine particular case, wherefore a man is committed, and ought to conclude, and him safely to keep till he be delivered by due course of Law, and for the full proof of this, read the 68, 69. pages of the following discourse, and the 11, 12, 13, 14, 15. pages of Mr. Iohn Wildmans late defence, called Truths Triumph, or Treachery anotamised.
But if the Warrant be in generall words, and be also to keep him during their pleasure, and made by the Parliament, the prisoner is murthered and destroyed by such an imprisonment. For he must either stoop to their wills, and so betray his liberties and sin against his own soule, or else he must remaine in prison till he starve and rot, before any Iudge in Westminster Hall will grant him a Habeas Corpus to bring him up to the barre of Justice, either to receive his punishment according to Law, or else his liberties as uniustly imprisoned, and this made me the other day at the House of Commons, to contest for a legal warrant, before I would go to Prison; but that mercinary Turkish Ianisary, Col. Baxster laid violent hands upon me, telling me expresly he was not either to reason or dispute the Houses commands, but to obey them; & caused his Soldiers to draw their swords upon me, & in halling of me away by force & violence he stabed Magna Charta, & the Petition of Right & c. to the very heart and soule, & did asmuch as in him lyes, by that act destroy all our Lawes and liberties, for if authority must be backt with the sword, to put in execution all their unjust commands, then farwell all law and liberty forever, and accursed be the day, that ever the Parliament raised an Army to fight for the preservation of our lawes and liberties, if now they convert their power, and turne their swords and guns against us by force of armes to destroy our lawes and liberties.
6. Feb. 1647.
AT the Parliament begun at Westminster the seventeenth day of March. An. Dom. 1627. in the third yeare of the reigne of our most gracious Soveraigne Lord, Charles, by the grace of God, of England, Scotland, France, and Ireland, King, Defender of the Faith, & c. And there continued untill the 26. day of Iune following, and then prorogued unto the 20. day of October now next ensuing: To the high pleasure of Almighty God, and to the weale publique of this Realme, were enacted as followeth.
The petition Exhibited to his Majestie by the Lords Spirituall and Temporall, and Commons in this present Parliament assembled, concerning divers Rights and Liberties of the Subiect; with the Kings Majesties royall answer thereunto, in full Parliament
To the Kings most Excellent Majestie.
HVmbly sheweth unto our Soveraigne Lord the King, the Lords Spirituall and Temporall, and Commons in Parliament assembled, That whereas it is declared and inacted by a Statute made in the time of the reigne of King Ed. the first, commonly called Statutum de Tallagio non concedento,a That no tallage or aid shall be laid or levied by the King or his Heires in this Realme, without the good will and assent of the Arch Bishops, Bishops, Earles, Barons, Knights, Burgesses, and other the free men of the Commonalty of this Realme. And by authority of Parliament holden in the five and twentieth yeare of the reigne of King Edward the third,b it is declared and inacted. That from thenceforth no person should be compelled to make any loanes to the King against his will, because such loanes were against reason, and the franchise of the Land. And by other Lawes of this Realme it is provided, that none should be charged by any charge or imposition, called a Benevolence, nor by such like charge,c by which the Statutes before mentioned, and other the good Lawes and Statutes of this Realme, your Subjects have inherited this Freedome. That they should not be compelled to contribute to any tax, tallage, aid, or other like charge, nor set by common consent in Parliament. 1. R. 3. 2.
Yet never the lesse of late, divers Commissions, directed to sundry Commissioners in severall Counties, with instructions have issued; by meanes whereof your people have been in divers places assembled, and required to lend certaine summes of money unto your Majestie, and many of them upon their refusall so to do, have had an oath administred unto them, not warrantable by the Lawes or Statutes of this Realme,* and have been constrained to become bound to make appearance, and give attendance before your privie Councell, and in other places: and others of them have been therefore imprisoned, confined, and sundry other wayes molested and disquieted. And divers other charges have been laid and levied upon your people in severall Counties, by Lord Lievtenants, Deputy Lieutenants, Commissioners for Musters, Iustices of Peace, and others by command or direction from your Maiesty, or your privie Councell, against the Lawes and free customes of the Realme.*
And where also by the Statute called THE GREAT CHARTER OF THE LIBERTIES OF ENGLAND,d It is declared and enacted, That no freeman may be taken or imprisoned,St. 37. Ed. 3. 18. or be disseized of his Free hold, or Liberties, or his free Customs, or be outlawed or exiled, or in any manner distroyed, but by the lawfull iudgement of his PEERS, or by the Law of the Land.St. 38. Ed. 3. 9.
St. 42. Ed. 3. 3.And in the eight and twentieth yeare of the reigne of King Edward the third,e it was declared and enacted by authority of Parliament, That no man of what estate or condition that he be, should be put out of his Land, or Tenements, nor taken, nor imprisoned, nor disherited,St. 17. R. 2. 6. nor put to death without being brought to answer by due processe of Law.
Neverthelesse against the tenour of the said Statutes, and other the good Lawes and Statutes of your Realme to that end provided,f divers of your Subiects have of late been imprisoned without any cause shewed:* And when for their deliverance they were brought before your Iustices by your Majestics Writs of Habeas corpus, there to undergoe and receive as the Court should order, and their Keepers commanded to certifie the causes of their detainer, no cause was certified, but that they were detained by your Maiesties speciall command, signified by the Lords of your privie Councell, and yet were returned back to severall prisons without being charged with any thing to which they might make answer according to law.
And whereas of late great companies of Soldiers and Marriners have been dispersed into divers Counties of the Realme, and the inhabitants against their wills, have been compelled to receive them into their houses, and there to suffer them to sojourne, against the Lawes and Customes of this Realme,† and to the great grievance and vexation of the people.
And whereas also by authority of Parliament, in the five and twentieth yeare of the reigne of King Edw. the third,g it is declared and inacted, that no man should be fore iudged of life or limbe against the form of the Great Charter and the Law of the land; And by the said Great Charter, and other the Lawes and Statutes of this your Realme, no man ought to be adiudged to death, but by the Lawes established in this your Realme,h either by the Customs of the same Realme, or by acts of Parliament. And whereas no offender of what kind soever, is exempted from the proceedings to be used, and punishments to be inflicted by the Lawes and Statutes of this your Realme: Neverthelesse, of late divers Commissions under your Majestes great Seale have issued forth by which certaine persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the Iustice of Martiall Law, against such soldiers and Martiners, or other dissolute persons joyning with them, as should commit any murther, robberie, felony, mutinie, or other outrage or misdemeanor whatsoever, and by such summary course and order, as is agreeable to Martiall Law, and as is used in Armies in time of warre, to proceed to the tryall and condemnation of such offenders, and them to cause to be executed and put to death according to the Law Martiall.
By pretext whereof some of your Maiesties Subjects have been by some of the said Commissioners put to death, when and where, if by the Lawes and Statutes of the Land they had deserved death, by the same lawes and statutes also they might, and by no other ought to have been iudged and executed.†
And also sundry grievous offendors by colour thereof, claiming an exemption, have escaped the punishments due to them by the Lawes and Statutes of this your Realme, by reason that divers of your officers and Ministers of Iustice have uniustly refused, or forborne to proceed against such offendors according to the same Lawes and Statutes, upon pretence that the said of fendors were punishable only by Martiall law, and by authority of such Commissions as aforesaid, which Commissions and all other of like nature are wholly and directly contrary to the said Lawes and Statutes of this your Realme.
The Petition.They doe therefore humbly pray your most excellent Maiestie, that no man hereafter be compelled to make or yeeld any gift, loane, benevolence, tax, or such like charge, without common consent by act of Parliament. And that none be called to make answer, or take such oath, or to give attendance, or be confined, or other ways molested or disquieted concerning the same, or for refusal thereof. And that no Freeman, in any such manner as is before mentioned, be imprisoned or detained. And that your Maiestie would be pleased to remove the said Soldiers and Marriners, and that your people may not be so burthened in time to come. And that the foresaid Commissions for proceeding by Martiall Law, may be revoked and annulled. And that hereafter no Commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Maiesties Subiects be distroyed or put to death contrary to the lawes and franchise of the land.
All which they most humbly pray of your most excellent Maiesty, as their rights and liberties, according to the Lawes and Statutes of this Realme. And that your Maiestie would also vouchsafe to declare that the awards, doings and proceedings, to the prejudice of your people, in any of the premisses, shall not be drawn hereafter into consequence or example. And that your Maiestie would be also graciously pleased, for the future comfort and safety of your people, to declare your royall will and pleasure, That in the things aforesaid all your officers and Ministers shall serve you according to the Lawes and Statutes of this Realme,† as they tender the honour of your Maiestie, and the prosperity of this Kingdome.
THe King willeth that right be done, according to the Lawes and customes of the Realme; And that the Statutes be put in execution, that his Subiects may have no cause to complaine of any wrong or oppression, contrary to their iust Rights and Liberties, to the preservation whereof, he holds himself in conscience as well obliged, as of his Prerogative.
But this answer not giving satisfaction,† the King was againe petitioned unto, that he would give a full and satisfactory answer to their Petition in full Parliament.
My Lords and Gentlemen,
THe answer I have already given you, was made with so good deliberation, and approved by the iudgements of so many wise men, that I could not have imagined but that it should have given you full satisfaction; but to avoid all ambiguous interpretations, and to shew you that there is no doublenesse in my meaning, I am willing to please you in words, as well as in substance; Read your Petition, and you shall have an answer that I am sure will please you.
And then causing the Petition to be distinctly read by the Clerk of the Crowne, The clerke of the Parliament read the Kings answer thereunto in these words.
Soit droit fait come est desire. Which is in English, Let Right be done as is desired.
THis I am sure is full, yet no more then is granted you in my first Answer; for the meaning of that was, to confirme all your Liberties: knowing according to your own Protestations, that you neither meane, nor can hurt my Prerogative: And I assure you my Maxime is, That the peoples Liberty strengthens the Kings Prerogative, and that the Kings Prerogative is to defend the peoples Liberties.
Ye see now how ready I have shewed my self to satisfie your demands, so that J have done my part, wherefore if this Parliament have not a happy conclusion, the sinne is yours, I am free of it.
And on the last day of the Session, being Iune 26. 1628. His Maiesties speech to both Houses before his Royall assent to the Bils, was this.
My Lords and Gentlemen:
IT may see me strange that J come so suddainly to end this Session, therefore before I give my assent to the Bils, I will tell you the cause, THOUGH I MVST AVOW THAT I OWE AN ACCOVNT OF MY ACTIONS TO NONE BVT GOD ALONE. It is known to every one, that a while agoe the House of Commons gave me a Remonstrance, how acceptable every man may iudge, and for the merit of it I will not call that in question, for I am sure no wise man can justifie it.
Now since I am certainly informed, that a second Remonstrance is preparing for me to take away my profit of Tonnage and Peundage (one of the chiefe maintenance of the Crown) by alledging, that I have given away my right thereof, by my answer to your Petition.
This is so preiudiciall unto me, that I am forced to end this Session some few houres before I meant it, being willing not to receive any more Remonstrances, to which I must give aharsh answer.
And since I see that even the House of Commons begins already to make false Constructions of what I granted in your petition, lest it be worse interpreted in the Country, I will now make a declaration concerning the true intent thereof.
The profession of both Houses, in the time of hammering this petition, was no wayes to trench upon my Prerogative, saying they had neither intention nor power to hurt it.
Therefore it must needs be conceived, that I have granted no new, but only confirmed the ancient Liberties of my subiects. Yet to shew the clearenesse of my intentions, that I neither repent, nor meane to recede from any thing I have promised you, I doe here declare. That those things which have been done, whereby men had some cause to suspect the Liberty of the subiects to be trench’t upon (which indeed was the first and true ground of the petition) shall not hereafter be drawn into example of your prejudice: And in time to come (IN THE WORD OF A KJNG) you shall not have the like cause to complaine.
But as for Tonnage and Poundage, it is a thing I cannot want, and was never intended by you to aske, never meant (I am sure) by me to grant.
To conclude, I command you all that are here, to take notice of what I have spoken at this time, to be the true intent of what I granted you in your petition: But especially you, my Lords, the Iudges, for to you only, under me, belongs the interpretation of Lawes: for none of the Houses of Parliament, joynt or separate (what new doctrine soever may be raised) have any power, either to make or declare a Law without my consent.
This Petition of Right, with the foregoing answer unto it, you shall find printed verbation in the 1431, 1432, 1433, 1434. pages of Francis Pultons collection of the Statutes at large, printed Cum Privelegio, 1640. And unto this I shall annex divers of the most materiallest Statutes for the peoples liberty, so that those that have not 40. s. to lay out for the Book of Statutes, nor time to read it over, may for a few pence in this following Plea, or Collection read their chiefest freedomes, that the Statute law of England gives them, which I must confesse are very slender and short to what by nature and reason they ought to be, and so deare to come by, that they rather seeme bondages then freedomes, by reason of pleading them by Hackney, mercenary Lawyers, (whose riches and livelyhood are got by hood-winking the law, and breeding strife and contentions) among the People, and by the corruptions of the Iudges in all ages in executing of them, who continually rather serve the will and lust of the King, or other great men, that helpe them to their places, then the rules of either law, equity, reason, conscience, or justice, and the misery of the people of this Land it is, that there is so many Lawyers in the House of Commons the Law-makers, that it is a vain thing to expect while it is so, (especially they being suffered to plead causes before Judges of their own making, and being Parliament men, they dare not displease them, which brings in a manner all the fat & large grists in Eng. to their mills) a remedy or relief against all those inslaving & distroying abuses of the law, and the execution thereof; and slaves you are, and slaves you must be, doe the best you can, till you take a particular and effectuall course to provide a thorough remedie for these insufferable maladies, and if my advice may be of any weight with you, I desire you seriously to read and weigh it, as I have laid it down in my former bookes† and put it but in execution, and I am sure it will cure you. But to goe on to the main thing I intend, which is to give you the foregoing promised collection out of the foresaid book of Statutes at large, I shall begin with the 14. 26. 28. & 29. chaps. of Magna Charta, confirmed in the 9. yeare of Henry the third, which you shall find in the find book of Statutes, fol, 3. 4. which thus followeth, chap. 14.
St. 3. Ed. 1. 6. Regist fol. 86. 184. 187. V. N. B. fo. 47. Fitz. N. B. f. 75. a.A Free man 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 confinement. And a Merchant likewise saving to him his merchandise. And any others villaine then ours shall be likewise amerced, saving his wainage, if he fall into our mercy. And none of the said amerciaments, shall be assessed, but by the oath of honest and lawfull men of the vicinage. Earles and Barons shall not be amerced but by their PEERS, and after the manner of their offence. No man of the Church shall be amerced after the quantity of his spirituall Benefice, but after his lay tenements, and after the quantity of his offence. 3. Ed. 1. 6.Fitz Act. fur. left. 34. Br. Amercement. 2. 25. 33. 32. 53. 65. 10. H. 6. fo. 7. 7. H. 6. fo. 13. 19. Ed. 4. fo. 9. 21. Ed. 4. fo. 77. 28.Act. pl. 26. Cook l. 8. fo. 28, 59.
NOthing from hence shall be given for a [Editor: illegible word] of Inquisition, not taken of him that prayeth Inquisition of Life or Member, but it shall be granted freely, and not denyed, Stat. 3. Ed. 1. 11. Stat. 13. Ed. 1. 29. Regist. fo. 133. 134.
Fitz. Ley 78. Bro. Ley 37. Co. inst. fo. 168. a.NO Bailife from henceforth shall put any man to his open Law, not to an oath, upon his own bare saying without faithfull witnesses brought in for the same.
10. Ed. 4. fo. 6. Dyer fo. 104. Cook li. 5. fo. 64. lib. 10. fol. 74. lib. 11. fo. 99, Regist. fo. 186. Col. pla. fo. 456.NO Freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customes, or be outlawed, or exiled, or any otherwise distroyed, nor We will not passe upon him, nor condemne him, but by lawfull judgement of his PEERS, or by the law of the land. We will sell to no man, We will not deny or deferre to any man either justice or right. Stat. 2. Ed. 3, 8. Stat. 5. Ed. 3. 9. Stat. 14. Ed. 3, 14. 28. Ed. 3. 3. Stat. 11. R. 2. 10.
Cook li. 8. f. 38. 59.ANd because Elections ought to be free, the King commandeth upon, great forfeiture, that no man by force of Armes, nor by malice, or menacing shall disturbe any to make free Election St. 9. Ed. 2. 14.
Bro. Amerciamẽ: 6. 9. 11. 13. 20. 25. 27. 28. 31. 32. 35. 37. 39. 43. 44.ANd that no City, Borough, nor Town, nor any man be amerced without reasonable cause, and according to the quantity of his Trespasse, that is to say, every freeman, saving his freehold, a Merchant saving his Merchandise, a Villain saving his waynage and that by his or their PEERS. St. 9. H. 3, 14. V. N. B. fo. 47. Regist. fo. 187.
ANd forasmuch as Sheriffes, and other, which have taken and kept in prison persons detected of felony,Bro. Mainprise 11. 56. 78. and incontinent have let out by replevin, such as were not replevisable, and have kept in prison such as were replevisable, because they would gaine of the one party, and grieve the other: And forasmuch as before this time it was not determined, which persons were replevisable, and which not, but only those that were taken for the death of man, or by commandment of the King, or of his Iustices, or for the Forest: It is provided and by the King commanded,Dyer fo. 170. Fitz. Mainprise 1. 40. that such prisoners as before were outlawed, and they which have abiured the realm, provers and such as be taken with the maner, and those which have broken the Kings prison, theeves openly defamed and known,Bro. Mainprise 54, 57, 59, 60, 75, 78. and such as he appealed by provers, so long as the provers be living (if they be not of good name) and such as be taken for house burning feloniously done, or for false money,Cook li. 11. fo. 29. Fitz. Mainprise 39. or for counterfeiting the Kings seale, or persons excommunicate, taken at the request of the Bishop, or for manifest offences, or for treason touching the King himselfe, shall be in no wise replevisable by the common Writ, nor without writ. But such as be indicted of Larceny by Enquests taken before Sheriffes or Bailifes by their office, or of light suspition, or for petty Larceny, that amounteth not above the value of 12. pence, if they were not guilty of some other Larceny aforetime, or guilty of receit of felons, or of commandment or force,Bro. Main. 6. 9. 11. 19. 22. 30. 48. 50. 51, 53. 58, 63, 64. 73. 78, 91. 94. 97. or of aid of felony done, or guilty of some other trespasse, for which one ought not to lose life or member, and a man appealed by a prover after the death of the prover (if he be no common theefe nor defamed) shall from henceforth be let out by sufficient surety, wherof the Sheriffe will be answerable, and that without giving ought of their goods. And if the Sheriffe or any other, let any goe at large by surety that is not replevisable, if he be Sheriffe or Constable, or any other Baylife of fee, which hath keeping of prisons, and therefore be attainted, he shall lose his fee and office for ever. And if the under Shereffe, Constable,V. N. B. fo. 40. or Baylife of such as have fee for keeping of prisons, doe it contrary to the will of his Lord, or any other Baylife being not of fee, they shall have three yeares imprisonment, and make fine at the Kings pleasure. And if any withhold prisoners replevisable, after that they have offered sufficient surety,V. N. B. fo. 41. he shall pay a grievous amerciament to the King. And if he take any reward for the deliverance of such, he shall pay double to the prisoner, and also shall be in the great mercy of the King, St. 27. E. 1. 3. St. 3. H. 7. 31, & 2. P. &. M. 13.Regist. fo. 83. 268.
Rast. pla. fo. 317.ANd that no Sheriffe nor other the Kings Officer, take any reward to doe his office, but shall be paid of that which they take of the King, and he that so doth, shall yeeld twice as much, and shall be punished at the Kings pleasure. St. 23. H. 6. 10. 4. H. 3. 10.Cook Inst. 308. b.
ANd we will that if any judgement be given from henceforth contrary to the points of the Charters aforesaid by the Iustices, or by any other our Ministers that hold Plea before them against the points of the Charters, it shall be undone and holden for nought.
ANd we will that the same Charters shall be sent under our Seale to Cathedrall Churchers throughout our Ralme, there to remain, and shall be read before the people two times by the yeare. 28. Ed. 3. 1.
ANd that all Arch Bishops and bishops, shall pronounce the sentence of Excommunication against all those that by word, deed, or councell, doe contrary to the foresaid Charters, or that in any point break or undoe them, And that the said curses be twice a yeare denounced and published by the Prelates aforesaid. And if the same Prelates or any of them be remisse in the denunciation of the said sentences, the Arch Bishops of Canterbury and Yorke for the time being, shall compell and distrain them to the execution of their dutyes in forme aforesaid.
THat is to say, That from henceforth the great Charter of the Liberties of England granted to all the Commonalty of the Realme, and the Charter of the Forest in like manner granted, shall be observed, kept, and maintained in every point, in as ample wise as the King hath granted, renewed, and confirmed them by his Charters. And that the Charters be delivered to every Sheriffe of England, under the Kings Seale, to be read foure times in the yeare before the people in the full County that is to wit, the next County day after the Feast of St. Michael, and the next County day after Christmas, and at the next County after Easter, and at the next County after the Feast of St. Iohn. And for these two Charters to be firmely observed in every point and article (where before no remedy* was at the Common Law) there shall be chosen in every Shire Court by the Commonalty of the same Shire, three substantiall Men, Knights, or other lawfull, wise, and well disposed persons which shall be Iustices sworne and assigned by the Kings Letters Patents under the great Seale, to heare and determine (without any other Writ, but only their Commission) such Plaints as shall be made upon all those that commit or offend against any Point contained in the foresaid Charters, in the Shires where they be assigned, as well within Franchises as without: And as well for the Kings Officers out of their places, as for other: and to heare the Plaints from day to day without any delay, and to determine them, without allowing the delayes which be allowed by the Common Law. And the same Knights shall have power to punish all such as shall be attainted of any Trespasse done, contrary to any point of the foresaid Charters (where no remedy was before by the Common Law) as before is said, by Jmprisonment, or by ransome, or by Amerciament, according to the Trespasse, &c.
Stat. 9. E. 2. Stat. 14. E. 3. 7. 28. Ed. 1. 1. THe King hath granted unto his people, that they shall have election of their Sheriffes in every Shire (where the Shrivalty is not of fee) if they list. Chap. 13.
ANd for as much as the King hath granted the election of Sheriffes to the Commons of the Shire, the King will that they shall chuse such Sheriffes, that shall not charge them, and that they shall not put any Officer in authority for rewards or bribes. And such as shall not lodge too oft in one place, nor with poore persons or men of religion. St. 9. E. 2. The Statute of Sherifes.
WE will and grant for us and our heires, that all Clerkes and lay men of our land, shall have their lawes, liberties, and, free Customes as largely and wholly, as they have used to have the same, at any time when they had them best. And if any Statutes have been made by us or our ancestors, or any customes brought in contrary to them, or any manner article contained in this present Charter: we will and grant that such manner of statutes and customes shall be void and frustrate for evermore.
ANd for the more assurance of this thing we will and grant that all Arch Bishops and Bishops for ever, shall read this present Charter in their Cathedrall Churches twice in the year, and upon the reading hereof in every of their Parish Churches shall openly denounce accursed all those that willingly doe procure to be done any thing contrary to the tenour, force and effect of this present Charter in any point and article. In witnesse of which thing we have set our Seale to this present Charter, together with the Seales of the Arch Bishops. Bishops, &c. which voluntarily have sworn, that as much as in them is, they shall observe the tenour of this present Charter in all causes and articles, and shall extend their faithfull aid to the keeping thereof, &c.
ITem, the King will that no man from henceforth shall be charged to arme himself, otherwise then he was wont in the time of his progenitors Kings of England. And that no man be compelled to goe out of his shire, but where necessity requireth, and suddain comming of strange enemies into the Realme. And then it shall be done as hath been used in times past for the defence of the Realme. St. 15. Ed. 3. 7. St. 4. H. 4. 13. 25. Ed. 3. 8.
Item, it is accorded and established, that it shall not be commanded by the great Seale nor the little Seale, to disturb or delay common right: and that though such commandements do come, the Iustices shall not therefore leave to doe right in any point. St. 9. H. 3. 29. St. 5. Ed. 3. 9. St. 14. Ed. 3. 14.
33. Ed. 1. 30. 20. Ed. 3. 6. Fitz. N. S. fo. 251. 1. Ed. 3. 16. 18. Ed. 3. 2. 34. Ed. 3. 1. 13. R. 2. 7. ITem, it is ordained, that good and discreet persons, other then of the places, if they may be found sufficient, shall be assigned in all the Shires of England to take Assises, Iuries, and certifications, and deliver the Gaoles. And that the said Iustices shall take the Assises, Iuries, and certifications; and deliver the Gaols at the least three times a year, and more often if need be. Also there shal be assigned good and lawfull men in every County to keep the peace. And at the time, of the assignments, [Editor: illegible word] shall be made, that such as shall be indicted or taken by the said keepers of the Peace, shall not be let to mainprise by the Sheriffes nor by none other ministers, if they be not mainpernable by the Law. Not that such as shall be indicted, shall not be delivered but at the Common Law. And the Iustices assigned to deliver the Gaoles, shall have power to deliver the same Gaoles of those, that: shall be indicted before the keepers of the peace. And that the said keepers shall send their indictments before the Iustices, and they shall have power to inquire of Sheriffes, Gaolers, and other, in whose ward such indicted persons shall be, if they make deliverance or let to mainprise any so indicted, which be not mainpernable, and to punish the said Sheriffes, Gaolers, and others if they doe any thing against this Act.
ITem, whereas in times past Sheriffes and gaolers of Gaoles, would not receive theeves, persons appealed, indicted, or found with the maner, taken and attached by the Constables, and townships, without taking great fines and ransomes of them for their receit, whereby the said Constables and Townships have been unwilling to take theeves and felons, because of such extream charges, and the theeves and the felons the more incouraged to offend: It is inacted that the Sheriffes and Gaolers shall receive and safety keep in prison from henceforth such theeves and felons,3. E. 1. 26. 11. Ed. 4. fol. 4. 32. H. 6. 10. by the delivery of the Constables and townships, without taking any thing for the receipt. And the Iustices assigned to deliver the Gaole, shall have power to heare their complaints that will complain upon the Sheriffes and Gaolers in such case, and moreover to punish the Sheriffes and Gaolers of they be found guilty.
ITem, it is accorded, that a Parliament shall be holden every yeare once, and more often if need be Stat. 36. Ed. 3. 10.
ITem, because divers mischiefes have hapned, for that in divers places, as well as in the Chancery as in the Kings Bench, the common Bench, and in the Eschequer before the Iustices assigned, and other Iustices to heare and determine deputed, the judgements have been delayed, sometime by difficulty, and sometime by divers opinions of the Iudges, and sometime for some other cause: It is assented, established, and accorded, that from henceforth at every Parliament shall be chosen a Prelate, two Earles, and two Barons, which shall have commission and power of the King,2. H. 7. fo. 19 & 22. Ed. 3. fo. 3. to heare by petition delivered to them, the complaints of all those, that will complain them of such delayes or grievances done to them, and they shall have power to cause to come before them at Westminster, or else where the places of any of them shall be, the tenor of records and processes of such judgements so delayed, and to cause the same Iustices to come before them, which shall be then present to heare their cause and reasons of such delayes. Which cause and reason so heard, by good advice of themselves, the Chancellor, Treasurer, the Iustices of the one Bench and of the other, and other of the Kings Councell as many, and such as they shall thinke convenient, shall proceed to take a good accord, and make a good judgement. And according to the same accord so taken, the tenor of the said record, together with the judgement which shall be accorded, shall be remanded before the Iustices, before whom the plea did depend. And that they hastily goe to give judgement according to the same record. And in case it seemeth to them, that the difficultie be so great, that it may not well be determined, with our assent of the Parliament, that the said tenor or tenors shall be brought by the said Prelates, Earles, and Barons unto the next Parliament, and there shall be a finall accord taken, what judgement ought to be given in this case. And according to this accord, it shall be commanded to the Iudges, before whom the plea did depend, that they shall proceed to give judgement without delay. And to begin to doe remedy upon this ordinance: It is assented, that a commission and power shall be granted to the Arch-Bishop of Canterbury, the Earles of Arundell, and Huntington, the Lord of Wake, and the Lord Ralfe Basset, to endure till the next Parliament. And though the ministers have made an oath before this time, yet neverthelesse to remember them of the same oath: It is assented, that as well the chancellor, treasurer, keeper of the privieseale, the Iustices of the one Bench and of the other, the Chancellor, Barons of the Eschequer, as the Iustices assigned, and all they that doe meddle in the said places under them, by the advice of the same Arch-Bishop, Earles, and Barons, shall make an oath well and lawfully to serve the King and his people. And by the advice of said Prelate, Earls and Barons, be it ordained to increase the number of Ministers when need shal be, & them to diminish in the same manner. And so from time to time when officers shal be newly put in the said offices, they shal be sworn in the same maner, St. 27. El. 8 Regist. fo. 17. Rast. Pla. fo. 30.1.
YE shall sweare, that well and lawfully ye shall serve our Lord the King, and his people in the office of Iustice, and that lawfully ye shall councell the King in his businesse, and that ye shall not councell, nor assent to anything, which may turne him in damage or disherison by any maner, way, or colour. And that ye shall not know the damage or disherison of him, whereof ye shall not cause him to be warned by your selfe, or by other, and that ye shal doe equall Law, and execution of right to all his subjects, rich or poore, without having regard to any person. And that ye take not by your self or by other prively nor apartly, gift nor reward of gold nor silver, nor of any other thing which may turne to your profit, unlesse it be meat or drinke, and that of small value of any man that shall have any plea or processe hanging before you, as long as the same processe shall so be hanging, nor after for the same cause. And that ye take no fee, as long as ye shall be Iustice, nor robes of any man great or small, but of the King himself. And that ye give none advice nor councell to no man great nor small, in no case where the King is party. And in case that any of what estate or condition they be, come before you in your sessions with force and armes, or otherwise against the peace, or against the forme of the Statute thereof made, to disturb execution of the common law, or to menace the people,2, Ed. 3. 3. that they may not pursue the Law, that yee shall cause their bodies to be arrested and put in prison. And in case that be such, that yee cannot arrest them, that ye certifie the King of their names, and of their misprision hastily, so that he may therof ordain a convenable remedy. And that ye by your selfe nor by other, privily nor apertly, maintain any plea or quarrell hanging in the Kings Court, or elsewhere in the country. And that ye deny to no man common right, by the Kings letters, nor none other mans, not for none other cause, and in case any letters come to you, contrary to the law, that ye doe nothing by such letters, but certifie the King thereof, and proceed to execute the law, notwithstanding the same letters. And that yee shall doe and procure the profit of the King, and of his Crown, with all things where ye may reasonably doe the same. And in case ye be from henceforth found in default in any of the points aforesaid, ye shall be at the Kings will of body, land and goods, thereof to be done as shall please him, as God you help and all Saints.
FIrst, we have commanded all our Iustices, that they shall from henceforth doe equall Law and execution of right to all our subjects rich and poore, without having regard to any person, and without omitting to doe right for any letters or commandement, which may come to them from us, or from any other, or by any other cause. And if that any letters, writs, or commandements come to the Iustices, or to other deputed to doe law and right, according to the Usage of the Realm, in disturbance of the Law, or of the execution of the same, or of right to the parties, the Iustices and other aforesaid shall proceed and hold their Courts and processes where the pleas and matters be depending before them, as if no such Letters, Writs, or Commandements were come to them: And they shall certifie us and our Councell of such Commandements, which be contrary to the Law, as afore is said. And to the intent that our Iustices should doe even right to all people, in the manner aforesaid, without more favour shewing to one then to another, we have ordained and caused our said justices to be sworne, that they shall not from henceforth, as long as they shall be in office of Justice take fee nor robe of any man, but of our self, and that they shall take no gift nor reward by themselves, nor by other privily nor apertly of any man, that hath to doe before them by any way, except meat and drink, and that of small value, and that they shall give no councell to great men or small, in case where we be party, or which doe or may touch us in any point, upon pain to be at our will, body, Lands, and goods, to doe thereof as shall please us, in case they doe contrary. And for this cause we have increased the fees of the same our Iustices, in such manner as it ought reasonably to suffice them, St. 2. Ed. 3. 8. St. <11 class=""></11> R. 2. 10. Regist fo. 186.
ITem, it is accorded and assented, that no man shall be constrained to find men of Armes, hoblers nor Archers, other then those which hold by such services, if it be not by common assent and grant made in Parliament, St. 1. Ed. 3. 5. St. 4. H. 4. 13.
ITem, it is ordained and established, that the Sheriffe of the Counties shall be removed every yeare out of their offices,a. H. 7. fol. 5. so that no Sheriffe that hath been in his office by a yeare, shall abide in the same office the year next following. And that no Commission be made to him thereof, or renued for the same yeare following. St. 14. 8. 3. 7. 32. Ed. 3. 9. 23. H. 6. 8. Rast. pl. fo. 202.
ITem, because that Sheriffes and other ministers often doe array their panels in maner of Inquests of people procured and most far off from the Counties, which have no knowledge of the deed whereof the Inquest shall be taken, it is accorded that such panels shall be made of the next people, which shall not be suspect nor procured. And that the Sheriffes, Coroners, and other ministers, which doe against the same, shall be punished before the Iustices that take the said Inquest, according to the quantity of their Trespasse, as well against the King as against the party, for the quantity of the damage which he hath suffered in such maner. St. 31. B. 1. St. 28. E. 1. 9. 20. Ed. 3. 6. 42. Ed. 3. 11. Regist. fo. 178. Regist. pla. fo. 117.
Item, for the maintenance of the said Articles and Statutes and redresse of divers mischiefs and grievances which dayly happen, Parliament shall be holden every yeare, as an other time was ordained by a Statute. St. 4. Ed. 3. 14.
ITem, because it is often shewed to the King, by the Prelats, Dukes, Earles, Barons, and all the Comminalty, of the great mischiefes which have happened to divers of the Realme, because the Lawes, Customs, and Statutes of this Realme, be not commonly holden and kept in the same Realm for that they be pleaded, shewed & judged in the French tongue, which is much unknown in the said realm, so that the people which do implead or be impleaded in the Kings Court, and in the Courts of other have no knowledge nor understanding, of that which is said, for them or against them by their Serjeants & other Pleaders: And that reasonably the said Lawes and Customes the rather shal be perceived and known & better understood in the tongue used in the said Realm, & by so much every man of the said Realm may the better govern himself without offending of the Law, and the better keepe, save, & defend his heritage and possessions: and in divers regions and countryes, where the King, the Nobles, and other of the said Realm have been, good governance and full right is done to every person, because that their Lawes and Customes be learned and used in the tongue of the Country: The King desiring the good governance and tranquility of his people and to put out and eschew the harmes and mischiefs which do or may happen in this behalf, by the occasions aforesaid hath ordained, and established, by the assent aforesaid, that all Pleas which shall be pleaded in any Courts whatsoever before any of his Iustices whatsoever, or in his other places, or before any of his other minister whatsoever, or in the Courts and places of any other Lords whatsoever, within the Realme, shall be pleaded, shewed, defended, answered, debated, and iudged, in the English tongue, and that they be entred and inrolled in Latine.46 Ed. 3. fo. 21. Dyer fo. 2. 99. Cooke li. 8. fo. 163. li. 10. fo. 132. Co. inst. 304. And that the Lawes and Customes of the same Realme, Termes and Processes be holden and kept, as they be and have been before this time, and that by the ancient tearmes and formes of Pleaders, no man be prejudiced, so that the matter of the action be fully shewed in the Declaration and in the Writ. And it is accorded by the assent aforesaid, that this ordinance & Statue of pleading, begin and hold place at the fifteenth of St. Hillary next coming.
ITem, though it be contained in the great Charter, that no man be taken or imprisoned, nor put out of his freehold, without processe of the Law, never the lesse divers people make false suggestion to the King himselfe as wel for malice as otherwise, whereof the King is often grieved,St. 9. H. 3. 29. and divers of the Realm put in damage, against the forme of the same Charter: Wherefore it is ordained, that all they which make such Suggestions shall be sent with the same suggestions, before the Chancellor, Treasures and his grand Counsell,St. 38. Ed. 3. 9. and that they there finde surety to pursue their suggestions, and incurre the same paine that the other should have had if he were attainted, in case that his Suggestion be found evill. And that then processe of the Law be made aganst them without being taken and imprisoned against the form of the said Charter and other Statutes. St. 25. Edward. 3. 4. 42. Ed. 3. 3.
AT the Parliament of our Lord the King, holden at Westminster the first day of May, the two and fortieth yeare of his reigne: It is assented and accorded, That the great Charter, and the Charter of the Forest be holden and kept in all points, and if any Statute be made to the contrary, that shall be holden for none.
ITem, it is ordained and assented, That no man of Law shall be from henceforth Iustice of Assises, or of common deliverance Gaoles in his own Country. And that the chiefe Iustice of the common Bench be assigned amongst other to take such Assises, and deliver gaoles, but as to the chiefe Iustice of the Kings Bench it shall be, as for the most part of an hundred yeares last past was wont to be done, St. 13. H. 4. 2. 33. H. 8. 24.
ITem, at the complaint of the said Communalty made to our Lord the King in the Parliament, for that great disherison in times past was done of the people, and may be done by the false entring of pleas, rasing of Rolles, and changing of verdicts: It is accorded and assented, that if any Iudge or Clerke be of such default (so that by the same default there ensueth disherison of any of the parties,) sufficiently convict before the King and his Councell by the manner and forme, which to the same our Lord the King and his Councell shall seem reasonable, and within two yeares after such default made, if the partie grieved be of full age, and if he be within age, then within two years after that he shal come to his ful age, he shall be punished by fine and ransome at the Kings wit, and satisfie the party. And as to the restitution of the inheritance desired by the said Commons, the party grieved shall sue by Writ or otherwise according to the Law, if hee see it expedient for him. St. 8. H. 6. 82.
ITem, it is ordained and agreed, that in every Commission of the Iustices of Peace, there shall be assigned but six Iustices, with the Iustices of Assises, and that the said six Iustices shall keep their Sessions in every quarter of the yeare at the least, and by three dayes if need be, upon pain to be punished according to the discretion of the Kings Councell, at the suit of every man that will complain: And they shall inquire diligently among other things touching their offices, if the said Majors, Bailifes, Stewards, Constables and Gaolers have duly done execution of the said Ordinances of servants and labourers, beggars and vagabonds, and shall punish them that be punishable by the said paine of an hundred shillings, by the same paine, and they that be found in default, and which be not punishable by the same pain, shall be punished by their discretion. And every of the said Iustices shall take for their wages foure shillings† the day, for the time of their foresaid Sessions and their Clerke two shillings of the fines and amerciaments, rising and comming of the same Sessions, by the hands of the Sheriffes. And that the Lords of franchises, shall be contributary to the said wages, after the rate of their part of fines and amerciaments aforesaid. And that no Steward of any Lord be assigned, in any of the said Commissions. And that no association shall be made to the Iustices of the peace after their first Commission. And it is not the intent of this Statute, that the Iustices of the one Bench, or of the other, nor the Serjeants of the Law, in case that they shall be named in the said Commissions, shall be bound by force of this Statute, to hold the said Sessions foure times in the yeare, as the other Commissioners, the which be continually dwelling in the Country, but that they shall doe it, when they may best attend it.
ITem, at the grievous complaint made by the Commons to our Lord the King in this Parliament, of the excessive and superfluous number of Serjeants at Armes, and of many great extortions and oppressions done by them to the people: The King therefore doth will that they shall be discharged, and that of them and other there shall be taken of good and sufficient persons to the number of thirty, and no more from henceforth. And more over the King prohibiteth them to meddle with any thing that toucheth not their office. And that they doe no extortion nor oppression to the people, upon pain to loose their office, and to make a fine and ransome at the Kings pleasure, and full satisfaction to the party.
ITem, the King doth will and forbid, that no Lord, nor other of the Country, little or great, shall sit upon the Bench, with the Iustices, to take Assises in their Sessions in the Counties of England, upon great forfeiture to the King: and hath charged his said Iustices, that they shall not suffer the the contrary to be done.
ITem, whereas the Marshall of the Marshallsey of the Court of our Lord the Kings house, in the time of King Edward, grandfather of our Lord the King that now is, and before was wont to take the fees, which doe hereafter follow, that is to say, of every person that commeth by Capias to the said Court, foure pence: and if he be let to mainprise till his day, two pence more: and of every person which is impleaded of trespasse, and findeth two mainpernors to keep his day, till the end of the plea, to take for that cause two pence of the defendant: and of every person committed to prison by judgement of the Steward, in whatsoever manner the same be, foure pence: of every person delivered of felony, and of every felon let to mainprise by the Court foure pence: which fees were wont to be taken and paid in full Court, as the King hath well perceived by the complaint of the said Commons thereof made in the said Parliament: The same our Lord the King, to avoid all such wrongs and oppressions to be done to his people, against the good customes and usages made and used in the time of his progenitors, by the advice & assent of the Lords Spiritual & Temporal, & at the supplication of the said Commons hath ordained and established, that if the said Marshall or his Officers, under him, take other fees then above are declared, that the same Marshall and every of his Officers, shall loose their Offices, and pay treble damages to the party greeved, and that the party greeved have his suit before the Stewards of the said Court for the time being.
Also it is ordained and established, that no Servitor of Bills that beareth a staffe of the same Court, shall take for every mile from the same Court to the same place, where he shall do his service any more then one penny, and so for 12. miles twelve pence, and for to serve a Venire facias 12. homines, &c. or a Distringes out of the same Court, the double. And if any of the said Servitors of Bills doe the contrary, he shall be punished by imprisonment, and make a fine to the King after the discretion of the Stewards of the same Court, and also be forejudged the Court, and the same Steward shall have power to make proclamation at his comming to the said Court, in every Country from time to time of all the articles aforesaid, and thereof to execute punishment as afore is said. 9. R. 2 9.
ITem, where as well in plea reall as in plea personall after judgement given in the Courts of our Lord the King, the parties be made to come upon grievous pain, sometime before the King himself, sometime before the Kings Councell, and sometimes to the Parliament, to answer therof of new, to the great impoverishing of the parties aforesaid, and in the subverson of the Common law of the land:19. H. 6 fo. 39. Dyer fo. 315. 321. 376. it is ordained and established, that after judgement given in the Court of our Lord the King, the parties and their heires shall be thereof in peace, untill the judgement be undone by attaint or by error, if there be errors, as hath been used by the Law as in the time of the Kings progenitors.
ITem, because that many offenders doe daily beat, wound, imprison, and maime divers of the Kings liege people, and after purposely cut their tongues, or put out their eyes. It is ordained and stablished, that in such case the offenders that so cutteth tongues, or puts out the eyes of any the Kings liege people, and that duly proved, and found, that such deed was done of malice prepensed, they shall incur the pain of felony.
ITem, because that divers Constables of Castles, within the Realme of England be assigned to be Iustices of Peace, by Commission of our Lord the King, and by colour of the said commissions they take people to whom they beare evill will,Cook li. 9. fo. 119. and imprison them within the said Castles, till they have made fine and ransome with the said Constables for their deliverance: It is ordained and established, that none be imprisoned by any Iustice of the Peace, but only in the common Gaole: Saving to Lords and other (which have Gaoles) their franchise in this case.
FIrst, that the Statuts of the election of the Knights of the Shirs to come to the Parliament be holden and kept in all points: adioyning to the same, that the Knights of the Shires, which from henceforth shall be chosen in every Shire, be not chosen unlesse they be resident within the Shire where they shall be chosen,Rast. pl. fo. 446. the day of the date of the Writ of the summons of the Parliament. And that the Knights and Esquires and other which shall be choosers of those Knights of the Shires be also within the same Shires in manner and forme as is aforesaid. And moreover, it is ordained and established, that the Citizens and Burgesses of the Cities and Boroughs be chosen men, Citizens and Burgesses residant, dwelling and free of the same cities and boroughs, and no other in any wise. 7. H. 4. 15. 8, H. 6. 7. 10. H. 6. 2. 23. H. 6. 15.
FIrst, that the Iustices of the peace from henceforth to be made within the Counties of England, shall be made of most sufficient persons dwelling in the same counties, by the advice of the Chancellor and of the Kings Councell, without taking other persons dwelling in forain Counties to execute such office,1. Ed. 3. 16. 34. Ed. 3. 1. except the Lords and Iustices of Assises now named, and to be named by the King and his Councell. And except all the Kings chiefe Stewards of the Land and Seigniories of the Duchie of Lancaster, in the North parts and in the South, for the time being. 13. R. 2. 7.
ITem, the King considering the great mischiefes and disherisons, which daily happen through all the realm of England, as well in case of death of a man, as in case of freehold, and in other cases by them which passe in enquests in the said cases, which be common Iurors and other, that have but little to live upon, but by such inquests,2. H. 7. fo. 13. 10. H. 7. fo. 14. 9. H. 5. fo. 5. 10. H. 6. fo. 7. 8. 18. 7. H. 6. fo. 44. Dyer fo. 144 Cook Inst. part 1. 171. a. Rast. pl. fo. 117. and which have nothing to loose, because of their false oaths, whereby they offend their conscience the more largely: and willing thereof to have correction and amendment, hath ordained and established by assent of the Lords and Commons aforesaid, that no person shall be admitted to passe in any enquest upon tryall of the death of a man, nor in any enquest betwixt party and party, in plea reall, nor in plea personall, whereof the debt or the damage declared, amount to forty marks, if the same person have not Land, or Tenements of the yearly value of forty shillings, above all charges of the same, so that it be challenged by the party, that any such person so impanelled in the same cases, hath not Lands or tenements of the yearly value of forty shillings above the charges as afore is said. 28 Ed. 3. 13 8. H. 6. 29.
ITem, Whereas the election of Knights of Shires, to come to the Parliament of our Lord the King, in many Counties of the Realm of England, have now of late been made by very great outragious and excessive number of people, dwelling within the same Counties of the Realm of England, of the which most part was of people of small substance,* and of no value, whereof every of them pretended a voice equivalent,1. H. 9. 1. 10. H. 6. as to such elections to be made, with the most worthy Knights and Esquires dwelling within the same Counties, whereby manslaughters, riots, batteries, and divisions among the Gentlemen, and other peoples of the same Counties shall very likely rise and be, unlesse convenient and due remedy be provided in this behalf:2. 6. H. 6. 4. 11. H. 4. 2. 23. H. 6. 15. Raft. pl. fo. 440. Our Lord the King considering the premisses, hath provided, ordained, and established by authority of this present Parliament, that the Knights of the Shires to be chosen within the same Realm of England, to come to the Parliaments of our Lord the King, hereafter to be holden, shall be chosen in every County of the Realm of England, by people dwelling and resident in the same Counties, whereof every one of them shall have land or tenement, to the value of forty shillings by the year at least, above all charges, and that they which shall be so chosen shall be dwelling, and resident within the same Counties. And such as have the greatest number of them, that may EXPEND FORTY SHILLINGS by yeare, and above, as afore is said, shall be returned by the Sheriffes of every County Knights for Parliament, by Indentures sealed betwixt the said Sheriffes, and the said choosers so to be made. And every Sheriffe of the Realm of England shall have power by the said authority to examine upon the Evangelistes every such chooser, how much he may expend by the yeare: And if any Sheriffes return Knights, to come to the Parliament contrary to the said Ordinance the Iustices of Assises in their Seasions of Assises shall have power by the authority aforesaid, thereof to enquire. And if by enquest the same be found before the Iustices, and the Sheriffes there of be duly attainted that then the said Sheriffes shall imncurt the pain of an hundred pound, to be paid to our Lord the King, and also that he have imprisonment by a yeare, without being let to mainprise or baile, And that the Knights for the Parliament returned contrary to the said Ordinance, shall loose their wages. 10. H. 6. 2.
Provided alwayes, that he which cannot expend forty shillings by yeare, as afore is said, shall in no wise be chooser of the Knights for the Parliament. And that in every writ that shall hereafter goe forth to the Sheriffes, to choose Knights for the Parliament, mention be made of the said Ordinances.
ITem, whereas by Statutes made in the time of the Kings noble Progenitors, it was ordained,1. Ed. 3. 16 18. Ed. 3. 2. 13. R. 2. 7. 17. R. 2. 10. that in every County of England, Justices should be assigned of the most worthy of the same counties, to keep the peace, and to doe other things, as in the same Statutes fully is contained, which Statutes notwithstanding, now of late in many Counties of England the greatest number have been deputed and assigned, which before this were not wont to be, where of some be of small behaviour, by whom the people will not be governed nor ruled, and some for their necessity doe great extortion and oppression upon the people, whereof great inconveniences be likely to rise daily, if the King therefore does not provide remedy; The King willing against such inconveniences to provide remedy, hath ordained and established by authority aforesaid, That no Iustice of peace within the Realm of England in any County, shall be assigned or deputed, if he have not lands or tenements to the value of 20. l. by yeare: and if any be ordained hereafter to be Iustices of peace in any County, which hath not lands or tenements to the value aforesaid, that he there of shall give knowledge to the Chancellor of England for the time being, which shall put another sufficient in his place, and and if he give not the said knowledge (as before) within a moneth after, that he hath notice of such Commissions, or if he sit or make any warrant or precept by force of such Commissions, he shall incur the penalty of 20. l. and neverthelesse be put out of the Commission as before, and the King shall have the one half of the said penalty, and he that will sue for the King the other half, and he that will sue for the King, and for himself, shall have an action to demand the same penalty by writ of debt at the common Law.
Provided alwayes, that this Ordinance shall not extend to Cities, Towns, or Boroughs, which be Counties incorporate of themselves, nor to cities, towns, or boroughs, which have Iustices of peace of persons dwelling in the same by commission or warrant of the King, or of his progenitors. Provided also, that if there be not sufficient persons having lands & tenements to the value aforesaid, learned in the Law, and of good governance within any such County, that the Chancellor of England for the time being, shall have power to put other discreet persons learned in the Law, in such Commissions, though they have not lands or tenements to the value aforesaid, by his discretion. 27. H. 8. chap. 24.
ITem, it is ordained by the authority aforesaid, that the Statutes before this time made of Purveyors and buyers, shall be holden and kept, and put in due execution. And in case that any purveyor, buyer, or taker, will take and make purveyance, or buy any thing to the value of forty shillings,28. Ed. 3. 12. or under of any person, and make not ready payment in hand, that then it shall be lawfull to every of the Kings liege people to retain their goods and cattels, and to resist such purveyors and buyers, and in no wise suffer them to make any such purveyances, buyings, or takings: And to keep the peace better, every constable, tithingman, or chief pledge of every town or hamlet, where such takings or purveyances shall be made, shall be helping or assistant to the owner, or seller of such things, to be taken against the forme of this Ordinance, to make resistance in the manner aforesaid, in case that such constables, tithingmen, or chiefe pledges be required so to doe, upon pain to yeeld to the party so grieved the value of the things so taken with his double damages: and that none of the Kings liege people be put to losse or damage by the King or any officer for such resistance. And that none of the Kings officers shall cause to be arrested, vexed, or impleaded in the Court of the Marshalsey or elsewhere, any of the Kings liege people for such detaining, or not suffering to be done, upon paine to loose 20. l. the one moity thereof to the King, and the other moity to him which will in such case sue: and that the Iustices of peace in every County, shall have power by authority of this Ordinance, to inquire, hear, and determine as well at the suit of the King, as of him that will sue, of any thing done against this Ordinance, and thereof to make due punishment, and execution, and to award damages to the party plaintife, when any defendant is thereof duly convict, and that upon every action to be taken upon this Ordinance, every party defendant shall be put to answer unto it without the aid of the King, and in such actions to be taken, processe shall be made as in a writ of trespasse, done against the peace, and that in every Commission of Purveyors, buyers, or takers to be made, this Ordinance shall be contained and expressed. And moreover that this Ordinance among other Statutes of purveyors, buyers, or takers before this time made,2. H. 6. 2. 36. E. 3. 6. shall be sent to the Sherifes of every County of England to proclaim and deliver the said Statutes, and Ordinances in the manner and forme contained in the Statute of purveyors and buyers, made the first year of the reign of our said Lord the King, upon the paine contained in the Statute. And moreover the King will and commandeth, that the Statute made the 36. year of King Edward, late King of England, the third after the conquest, touching the purveyors of other persons then of the King, shall be put in due execution. 2. H. 4. 14.
ITem, the King considering the great perjury, extortion, and oppression, which be, and have been in this realme, by his Sherifes, under Sherifess and their Clerkes, Coroners, Stewards of franchises,20. H. 7. fo. 12. 21. H. 7. fo. 36. 4. H. 4. 5. Kel. fo. 108. 21. H. 7. fo. 16. Rast. pla. fo. 318. Coke. pla. 365. 3. E. 1. 26. Dyer. fo. 119. Bailifes and keepers of prisons, and other officers in divers counties of this realm, hath ordained by authority aforesaid, in eschewing of all such extortions, perjury, and oppression, that no Sherife shall let to farme in any manner his county, nor any of his Bailiwicks, Hundreds, nor wapentakes, nor that the said Sherifes, under Sheifes, bailiffes of Franchises, nor any other Bailiffe, shall return upon any writ or precept to them directed to be returned, any inquests in any panell thereupon to be made, any Bailiffes, officers, or servants to any of the officers aforesaid, in any panell by them so to be made, nor that any of the said Officers and Ministers, by occasion or under colour of their office, shall take any other thing by them, nor by any other person to their use, profit, or avail, of any person by them, or any of them, to be arrested, or attached, nor of any other of them, for the omitting of any arrest or, attachment to be made by their body, or of any person by them, or any of them, by force, or colour of their office arrested or attached for fine, fee, suit of prison, mainprise, letting to baile, or shewing any ease or favour to any such person so arrested or to be arrested for their reward or profit, but such as follow, that is to say. For the Sheriffe twenty pence, the Bailiffe that maketh the arrest or attachment foure pence, and the Gaoler, if the prisoner be committed to his Ward, foure pence. And that the Sheriffe, under Sheriffe, Sheriffes Clerke, Steward, or Bailiffe of Franchise, servant or Bailiffe, or Coroner shall not take any thing by colour of his office by him, nor by any other person to his use, of any person, for the making of any return or panell, and for the copy of any panell, but foure pence, and that the said Sheriffes and all other officers and Ministers aforesaid, shall let out of prison all manner of persons by them or any of them arrested, or being in their custody by force of any writ, bill, or warrant, in any action personall, or by cause of indictment of trespasse, upon reasonable sureties of sufficient persons, having sufficient within the counties where such persons be so let to bail or mainprise,Fitz. N. B. fo. 251. B. Plow. fo. 60. Coke. l. 10. fo. 101. 37. H. 6. fo. 1. Plow. fo. 60. Dyer fo. 118. 323. 364. 7. Ed. 4. fo. 5. Coke li. 3. fo. 59. li. 10. fo. 99. Rast. pla. fo. 371. 31. El. 9. Dyer fo. 25. to keep their dayes in such places as the said writs, bils, or warrants shall require. (Such person or persons which shall be in their Ward by condemnation, execution, Capias ut lagatum or excommunicatum, surety of the peace, and all such persons, which be or shall be committed to ward by speciall commandement of any Iustices, and vagabonds refusing to serve according to the forme of the Statute of Labourers only except.) And that no Sheriffe, nor any of his officers or Ministers aforesaid, that take or cause to be taken, or make any obligation for any cause aforesaid, or by colour of their office, but only to themselves, of any person, nor by any person, which shall be in their Ward by the course of the law, but by the name of their office, and upon condition writen, that the said prisoners shall appeare at the day contained in the said writ, bill or warrant, and in such places, as the said writs, bills, or warrants shall require. And if any of the said Sheriffes or other Officers or Ministers aforesaid, take any obligation in other form by colour of their offices, that it shall be void. And that he shall take no more for the making of any such Obligation, Warrant, or precept by them to be made, but foure pence. And also that every of the said Sheriffes shall make yearly a deputy in the Kings Courts of his Chancery, the Kings Bench, the Common Place, and in the Exchequer of Record, before that they shall return any Writs, to receive all manner of Writs and Warrants to be delivered to them: And that all Sheriffes, under Sheriffes, Clerkes, Bailiffes, Gaolers, Coroners, Stewards, Bailiffes of Franchises, or any other officers or ministers, which doe contrary to this Ordinance in any point of the same, shall loose to the party in this behalfe indamaged, or grieved his treble damages, and shall forfeit the summe of 40. l. at every time that they or any of them doe the contrary thereof in any point of the same, whereof the King shall have the one halfe to be imployed to the use of his house, and in no otherwise, and the party that will sue the other halfe. And that the Iustices of Assises in their Sessions, Iustices of the one Bench and of the other, and Iustices of the Peace in their County, shall have power to enquire, heare and determine of office without speciall Commission, of and upon all them that doe contrary to these Ordinances in any article or point of the same. And if the said Sheriffes return upon any person Cepi corpus or Reddidit se, that they shall be chargeable to have the bodies of the said persons at the dayes of the returns of the said Writs, Bills, or Warrants, in such form as they were before the making of this Act.
FOrasmuch as divers persons have been dayly arrested and imprisoned for suspection of Felony, somtime of malice, and sometime of a light suspection, and so kept in prison without baile or mainprise to their great vexation and trouble: Be it ordained and established by authority of this present Parliament, that every Iustice of peace in every Shire, City, or Town, shall have authority, and power by his or their discretion, to let such prisoners and persons so arrested, to Baile or Mainprise, in like forme as though the same prisoners or persons were indicted thereof of record before the same Iustices in their Sessions: and that Iustices of Peace have authority to enquire in their Sessions of all manner escapes of every person arrested and imprisoned for felony.Rep. 3. H. 7. 3. 1. & 2. P. & M. 13. 7. H. 4. fo. 47. 44. Ass. Pl. 14. 43. Ed. 3. fo. 24. And that no Sheriffe, under Sheriffe not Escheater, Bailiffe of franchise, nor any other person, take or seize the goods of any person arrested or imprisoned for suspition of felony, before that the same person so arrested and imprisoned, be convicted or attainted of such felony according to the Law, or else the same goods otherwise lawfully forfeited, upon pain to forfeit the double value of the goods so taken, to him that is so hurt in that behalfe, by action of debt to be pursued by like processe, judgement and execution, as is commonly used in other actions of debt sued at the Common law. And that no essoin, or protection be allowed in any such actions Nor that the defendant in any such action be admitted to wage or doe his Law.Cook li. 1 fo. 171. 26. Ass. pl. 32.
And be it further inacted by authority aforesaid, that if any person doe substract or withdraw any manner of tyths, obventions, profits, commodities, or other duties before mentioned, or any part of them contrary to the true meaning of this act, or of any other act heretofore made, that then the party so substracting, for withdrawing the same, may or shall be convented and sued in the Kings Ecclesiastical court,† by the party from whom the same shal be substracted or withdrawn, to the intent the Kings Iudge Ecclesiasticall shall and may, then and there, heare and determine the same according to the Kings Ecclesiasticall Lawes. And that it shall not be lawfull unto the Parson, Vicar, Proprietory, Owner, or other their Fermors, or deputies contrary to this act, to convent or sue such withholder of tithes, obventions, or other duties aforesaid, before any other Iudge, than Ecclesiasticall. And if any Arch-Bishop, Bishop, Chancellor, or other Iudge Ecclesiasticall, give any sentence in the foresaid causes of tithes, obventions, profits, emoluments and other duties aforesaid, or in any of them (and no appeale no prohibition hanging) and the party condemned doe not obey the said sentence, that then it shall be lawfull to every such Iudge Ecclesiasticall, to excommunicate the said party, so as afore condemned, and disobeying, in the which sentence of excommunication, if the said party excommunicate wilfully stand and endure still excommunicate, by the space of 40. dayes next after, upon denunciation and publication thereof, in the Parish Church, or the place, or Parish where the party so excommunicate is dwelling, or most abiding, the said Iudge Ecclesiasticall, may then at his pleasure signifie to the King in his court of Chancery, of the state and condition of the said party so ex communicate, and thereupon to require processe Deexcommunicate capiendo, to be awarded against every such person, as hath been so excommunicate.
3. Ed. 6. 12. 5. Ed. 6. 1.THat the Churches of the Queens Majesties Dominions may be served with Pastors of sound Religion: be it inacted by the authority of this Present Parliament, That every person under the degree of a Bishop, which doth, or shall pretend to be a Priest or Minister of Gods holy word and Sacrament, by reason of any other forme of institution, Consecration, or ordering, than the forme set forth by Parliament in the time of the late King of most worthy memory, King Edward the sixth, or now used in the reign of our most gracious Soveraign Lady, before the feast of the Nativity of Christ next following, shall in the presence of the Bishop or Guardian of the spiritualities of some one diocesse, where he hath, or shall have Ecclesiasticall living, declare his assent, anda subscribe to all the Articles of Religion, which only concerne the confession of the true Christian faith, and the doctrine of the Sacraments, comprised in a book imprinted, entituled, Articles, whereupon it was agreed by the Arch-Bishops, and Bishops of both Provinces, and the whole Clergie in the Convocation holden at London in the yeare of our Lord God, a thousand five hundred sixty and two, according to the computation of the Church of England, for the avoiding of the diversities of opinions, and for the establishing of consent touching true Religion, put forth by the Queens authority: and shall bring from such Bishop or Guardian of spiritualties, in writing under his seale authentick, a testimoniall of such assent and subscription, and openly on some Sunday in the time of some publique service afternoone, in every Church where by reason of any Ecclesiasticall living he ought to attend, read both the said testimonial, and the said Articles upon pain that every such person which shall not before the said Feast doe as is above appointed, shall beb (ipso facto) deprived, and all his Ecclesiasticall promotions shall be void, as if he then were naturally dead.
And that if any person Ecclesiasticall, or which shall have Ecclesiasticall living, shall advisedly maintaine or affirme any doctrine directly contrary or repugnant to any of the said Articles, and being convented before the Bishop of the Diocesse, or the Ordinary, or before the Queens Highnesse Commissioners in causes Ecclesiasticall, shall persist therein, or not revoke his error, or after such revocation eftsoones affirme such untrue doctrine: such maintaining or affirming, and persisting, or such eftsoon affirming, shall be just cause to deprive such person of his Ecclesiasticall promotions: And it shall be lawfull to the Bishop of the Diocesse, or the Ordinary, or the said Commissioners, to deprive such persons so persisting, or lawfully convicted of such eftsoones affirming, and upon such sentence of deprivation pronounced, he shall be indeed deprived.
And that no person, shall hereafter be admitted to any Benefice with Cure, except he then be of the age of three and twentie years at the least, and a Deacon, and shall first have subscribed the said Articles in presence of the Ordinary, and publikely read the same in the Parish Church of that benefice with declaration of his unfained assent to the same. And that every person after the end of this Session of Parliament to be admitted to a benefice with Cure, except that within two moneths after his induction, he doe publiquely read the said Articles in the same Church, whereof he shall have Cure, in the time of Common Prayer there, with declaration of his unfeined assent thereto, and be admitted to minister the Sacrament within one yeare after his induction, if he be not so admitted before, shall be upon every such default, ipso facto, immediately deprived.
And that no person now permitted by any dispensation or otherwise, shall retain any Benefice with cure, being under the age of one and twenty years, or not being Deacon at this least, of which shall not be admitted as is aforesaid, within one year next after the making of this act, or within six moneths after he shall accomplish the age of 24. yeares, on pain that such his dispensation shall be meerly void.
And that none shall be made Minister, or admitted to preach or administer the Sacraments, being under the age of 24. years, nor unlesse he first bring to the Bishop of that Diocesse from men known to the Bishop to be of sound Religion, a Testimoniall both of his honest life, and of his professing the doctrine expressed in the said Articles: nor unlesse he be able to answer and render to the Ordinary an accompt of his faith in Latine, according to the said Articles, or have speciall gift and ability to be a Preacher: nor shall be admitted to the order of Deacon or Ministry, unlesse he shall first subscribe to the said Articles.
And that none hereafter shall be admitted to any Benifice with Cure, of or about the value of thirty pounds yearly in the Queens Books, unlesse he shall then be a Batchelour of Divinity, or a Preacher lawfully allowed by some Bishop within this Realme, or by one of the Universities of Cambridge or Oxford.
And that all admissions to Benefices, Institutions, and inductions to be made of any person contrary to the forme or any provision of this Act, and all tolerations, dispensations, qualifications, and licences, whatsoever to be made to the contrary hereof, shall be meerly void in law, as if they never were.
Provided alway, that no title to conferre or present by(a) lapse, shall accrue upon any deprivation, ipso facto, but after six moneths after notice of such deprivation given by the Ordinary to the Patron.
FOrasmuch as all exactions, extortions and corruptions are odious, and prohibited, in all well governed Common-weales, Be it inacted, that no person, to whom any order or cause I shall be committed or referred, by any of the Kings Iudges, or Courts at Westminster, or any other Court shall directly or indirectly, or by any art, theft, colour or device, have, take, or receive, any money, fee, reward, covenant, obligation, promise, agreement, or any other thing, for his report or Certificate by writing, or otherwise, upon pain of the forfeiture of 100. l. for every such Report or Certificate, and to be deprived of his office and place in the same Court: the one moity of the said forfeitures to be our Soveraign Lord the King, his heires and successors, the other moity to the party grieved, which will sue for the same, at any time during the said suit, or within one yeare after the same cause discontinued or decreed, and in his default of such suit to him or them that will sue for the same, by originall Writ, Bill, plaint, or Information in his Majesties high Court of Star Chamber, or in any his Majesties Courts of Record at Westminster, in which suit, by Writ, Bill, plaint, or Information, no wager of Law, Essoin, Priviledge, Supersedeas, Protection, or any other delay, shall be suffered or admitted.
Provided neverthelesse, that it shall be lawfull for the Clerke to take for his paines for writing of every such Report or Certificate, 12. d. for the first side, and 2. for every side after, and no more, upon paine to forfeit 10. 2, for every peny taken over and above the said summe, to be had and recovered as aforesaid.
Having given you the most materiall Statutes, that I conceive at present makes for your most advantage, that I can find in the Statutes at large, I shall here insert three or foure Statutes made this present Parliament, that in my judgement is extraordinary well worth your knowledge and understanding, the first thus followes.
An Act for regulating of the Privie Councell, and for taking away the Court commonly called, the Star Chamber.
WHereas by the GREATa CHRTER many times confirmed in Parliament, It is inacted, that no freeman shall be taken or imprisoned or disseised of his free hold or Liberties or free Customes, or be Outlawed or exiled or otherwise destroyed, and that the King will not passe upon him, or condemne but by lawfull judgement of his Peers, or by the Law of the Land; And by another Statute made in theb fifth yeare of the Reigne of King Edward the third, It is inacted, That no man shall be attached by any accusation, nor fore-judged of life or lim, nor his Lands, Tenements, Goods, nor Chattels seised into the Kings hands against the forme of the GREAT CHARTER, and the law of the land. And by another Statute made in the five and twentieth yearc of the reigne of the same King Edward the third, It is accorded, assented and established, that none shall be taken by position, or suggestion made to the King or to his Councell, unlesse it be by Indictment or Presentment of good and lawfull people of the same Neighbourhood where such deeds be done, in due manner, or by Processe made by Writ originall at the Common Law, and that none he put out of his Franchise or Free-hold, unlesse he be by duty brought in, to answer, and fore-judged of the same by the course of the Law, and if any thing be done against the same, it shall be redressed and holden for none. And by another Statute made in the 28 yeard of the Reign of the same King Edward the third, It is amongst other things inacted, that no man of what estate or condition soever he be, shall be put out of his Lands or Tenements, nor taken nor imprisoned, nor disinherited, without being brought in to answer by due processe of Law. And by another Statute made in the 42. yearee of the Reign of the said King Edward the third. It is enacted that no man be put to answer without presentment before Iustices, 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 to the contrary, it shall be void in Law, and holden for error. And by another Statute made in the 36. year off the same King Edward the third, It is amongst other things inacted, That all Pleas which shall be pleaded in any courts before any the Kings Iustices, or in his other places, or before any of His other Ministers, or in the Courts and places of any other Lords within the Realm, shall be entred and enrolled in Latine. And whereas by the Statute made in the third yeare of King Henry the seventh, power is given to the Chancellour, the Lord Treasurer of England for the time being, and the Keeper of the Kings Privie Seale, or two of them, calling unto them a Bishop and a Temporall Lord of the Kings most honourable Councell, and the two chiefe Iustices of the Kings Bench and common Pleas for the time being, or other two Iustices in their absence to proceed, as in that Act is expressed, for the punishment of some particular offences therein mentioned. And by the Statute made in the one and twentieth yeare of King Henry the eighth, The President of the Councell is associated to ioyne with the Lord Chancellour and other Iudges in the said Statute, of the third of Henry the seveth mentioned, But the said Iudges have not kept themselves to the points limited by the said Statute, but have undertaken to punish where no law doth warrant, and to make Decrees for things having no such authority, and to inflict heavier punishments then by any law is warranted.
And forasmuch as all matters examinable, or determinable before the said Iudges, or in the Court commonly called the Star-Chamber, may have their proper remedy and redresse, and their due punishment, and correction by the Common Law of the Land, and in the ordinary course of justice elsewhere; And forasmuch as the reasons and motives inducing the erection and continuance of that Court doe now cease, and the proceedings, Censures, and Decrees of that Court, have by experience been found to be an intolerable burthen to the Subiect, and the meanes to introduce an Arbitrary power and Government, And forasmuch as the Councell Table, hath of late times assumed unto it self a power to intermeddle in Civill causes and matters, only of private interest between party and party, and have adventured to determine the Estates and Liberties of the Subiect, contrary to the Law of the Land, and the rights and priviledges of the Subiect, by which great and manifold mischiefes, and inconveniencies have arisen and hapned, and much incertainty by meanes of such proceedings hath been conceived concerning mens rights, and estates; For setling whereof, and preventing the like in time to come.
Be it Ordained and Enacted by Authority of this present Parliament. That the said Court commonly called the Star-Chamber, and all Iurisdiction, power, and authoritie, belonging unto, or exercised in the same Court, or by any of the Iudges, Officers, or Ministers thereof, be from the first day of August, in the yeare of our Lord God, 1641. clearly and absolutely dissolved, taken away, and determined, and that from the said first day of August, neither the Lord Chancellour, or Keeper of the great Seale of England, the Lord Treasurer of England, the Keeper of the Kings Privie Seale, or President of the Councell, nor any Bishop, Temporall Lord, Privie Councellor, or Iudge, or Iustice whatsoever, shall have any power, or authority to heare, examin, or determin any matter, or thing whatsoever, in the said Court commonly called the Star-Chamber, or to make, pronounce, or deliver any Iudgment, Sentence, Order, or Decree, or to doe any Iudiciall, or Ministeriall Act in the said Court; And that all and every Act, and Acts of Parliament, and all and every Article, clause and sentence in them, and every of them, by which any Jurisdiction, power, or authority is given, limited, or appointed unto the said Court commonly called the Star-Chamber, or unto all or any the Iudges, Officers, or Ministers thereof, or for any proceedings to be had, or made in the said Court, or for any matter, or thing to be drawn into question, examined, or determined there, shall for so much as concerneth the said Court of Star-Chamber, and the power and authority thereby given unto it, be from the said first day of August repealed, and absolutely revoked and made void.
And be it like wise enacted, That the like jurisdiction now used and exercised in the Court before the President, and Councell in the Marches of Wales, and also in the Court, before the President, and Councell established in the Northern parts: And also in the Court, commonly called the Court of the Duchy of Lancaster, held before the Chancellor, and Councell of that Court: And also in the Court of Exchequer, of the County Palatine of Chester, held before the Chamberlain and Councell of that Court; The like iurisdiction being exercised there, shall from the said first day of August 1641; be also repealed, and absolutely revoked and made void, any Law, prescription, custome, or usage, Or the said Statute made in the third yeare of King Henry the seventh; Or the Statute, made the one and twentieth of Henry the eighth, Or any Act, or Acts of Parliament heretofore had, or made to the contrary thereof in any wise notwithstanding; And that from henceforth no Court, Councell, or place of Iudicature shall be erected, ordained, constituted, or appointed within this Realm of England, or Dominion of Wales, which shall have, use, or exercise the same, or the like Iurisdiction, as is, or hath been used, practised, or exercised in the said Court of Star-Chamber.
Be it likewise declared, and enacted by authority of this present Parliament, That neither his Majestie, nor his Privie Councell, have, or ought to have any Iurisdiction, power or authority, by English Bill, Petition, Articles, Libell, or any other Arbitrary way whatsoever, to examine or draw into question, determine, or dispose of the Lands, Tenements, Hereditaments, Goods, or Chattels, of any the Subiects of this Kingdome; But that the same ought to be tryed, and determined in the ordinary Courts of Iustice, and by the ordinary course of the law.
And be it further provided, and enacted, That if any Lord Chancellor, or Keeper of the great Seale of England, Lord Treasurer, Keeper of the Kings privie Seale, President of the Councell, Bishop, Temporall Lord, Privie Councellor, Iudge, or Iustice whatsoever, shall offend or doe any thing contrary to the purport, true intent and meaning of this Law, Then he or they shall for such offence, forfeit the summe of five hundred pounds of lawfull money of England, unto any party grieved, his Executors, or Administrators, who shall really prosecute for the same, and first obtain judgement thereupon, to be recorded in any Court of Record at Westminster, by action of Debt, Bill, Plaint, or Information, wherein no Essoine, Protection, Wager of Law, Aid, Prayer, Priviledge, Injunction, or Order of restraint shall be in any wise, prayed, granted, or allowed, nor any more then one Imparlance. And if any person, against whom any such Iudgement, or Recovery shall be had as aforesaid, shall after such Iudgement, or Recovery offend again in the same, then he, or they for such offence, shall forfeit the summe of one thousand pounds, of lawfull money of England, unto any partie grieved, his Executors, or Administrators, who shall really prosecute for the same, and first obtaine Iudgement thereupon to be Recorded in any Court of Record at Westminster, by action of Debt, Bill, Plaint, or Information, in which no Essoine, Protection, Wager of Law, Aid, Prayer: Priviledge, Injunction, or Order of Restraint, shall be in any wise prayed, granted, or allowed nor any more then one Imparlance. And if any person against whom any such second Iudgement, or Recovery shall be had as aforesaid, shall after such Iudgement, or Recovery offend againe in the same kind, and shall bee thereof duly convicted, by Indictment, Information, or any other lawfull way, or meanes, that such persons so convicted, shall be from thenceforth disabled, and become by vertue of this Act incapable, Ipso facto, to beare his, and their said Office, and Offices respectively, and shall be likewise disabled to make any Gift, Grant, Conveyance, or other disposition of any his Lands, Tenements, Hereditaments, Goods, or Chattels, or to make any benefit of any Gift, Conveyance, or Legacy to his own use.
And every person so offending shall likewise forfeit and loose unto the party grieved, by any thing done contrary to the true intent and meaning of this Law, his trebble dammages, which he shall sustain, and be put unto by meanes, or occasion of any such Act, or thing done, the same to be recovered in any of His Majesties Courts of Record at Westminster, by Action of Debt, Bill, Plaint, or Information, wherein no Essoine, Protection, Wager of Law, Aid, Prayer, Priviledge, Injunction or Order of Restraint, shall be in any wise Prayed, Granted, or Allowed, nor any more then one Imparlance.
And be it also provided and enacted, That if any person shall hereafter be committed, restrained of his liberty, or suffer imprisonment by the Order or Decree of any such Court of Star-Chamber, or other Court aforesaid, now, or at any time hereafter having, or pretending to have the same or like jurisdiction, Power or Authority to commit, or imprison as aforesaid; Or by the Command or Warrant of the Kings Maiestie, his Heires or Successours in their own person, or by the Command or Warrant of the Councell-board, or any of the Lords, or other of his Majesties Privie Councell, that in every such case every person so committed, restrained of his libertie, or suffering imprisonment upon demand or motion made by his Councell, or other employed by him for that purpose, unto the Iudges of the Court of Kings Bench, or Common Pleas, in open Court, shall without delay, upon any pretence whatsoever, for the ordinary Fees usually paid for the same, have forthwith granted unto him a writ of Habeas Corpus to be directed generally unto all and every Sheriffs, Gaoler, Minister, Officer, or other person in whose custody the party so committed or restrained shall be, and the Sheriffs, Gaoler, Minister, Officer, or other person, in whose custody the party so committed or restrained shall be, shall at the return of the said writ and according to the command thereof, upon due and convenient notice thereof given unto him, at the charge of the party who requireth or procureth such Writ, and upon security by his own bond given, to pay the charge of carrying back the prisoner, if he shall be remanded by the Court, to which he shall be brought, as in like cases hath been used, such charges of bringing up and carrying back the prisoner, to be alwayes ordered by the Court, if any difference shall arise thereabout, bring or cause to be brought the body of the said party so committed, or restrained, unto and before the Iudges or Iustices of the said Court, from whence the same writ shall issue in open Court, and shall then likewise certifie the true cause of his deteinour, or imprisonment, and thereupon the Court within three Court dayes after such return made and delivered in open Court, shall proceed to examine or determine whether the cause of such Commitment appearing upon the said return be just and legall, or not, and shall thereupon doe what to justice shall appertain, either by delivering, bailing, or remanding the prisoner. And if any thing shall be otherwise wilfully done or omitted to be done by any Iudge, Justice, Officer, or other person afore mentioned, contrary to the direction and true meaning hereof, That then such person so offending shall forfeit to the party grieved, his trebble dammages, to be recovered by such meanes and in such manner, as is formerly in this Act limited and appointed for the like penaltie to be sued for and recovered.
Provided alwayes and be it enacted That this Act, and the severall Clauses therein contained shall be taken and expounded to extend only to the Court of Star-chamber, and to the said Courts holden before the President and Councell in the Marches of Wales, and before the President and Councell in the Northernparts; And also to the Court commonly called the Court of the Dutchy of Lancaster, holden before the Chancellor and Councell of that Court: And also in the Court of Exchequer of the County Palatine of Chester, held before the Chamberlain and Councell of that Court; And to all Courts of like Jurisdiction to be hereafter erected, ordained, constituted, or appointed as aforesaid, And to the warrants and Directions of the Councell board, and to the Commitments, restraints and imprisements of any person or persons made, commanded, or awarded by the Kings Majestie, his Heires or Successours in their own person, or by the Lords and others of the Privie Councell, and every one of them.
And lastly, provided, and be it enacted, That no person or persons shall be sued, impleaded, molested, or troubled, for any offence against this present Act, unlesse the party supposed to have to offended, shall be sued or impleaded for the same within of two yeares at the most after such time wherein the said offence shall be committed.
An Act for the declaring unlawfull and void the late proceedings touching Ship money, and for the vacating of all Records and Processe concerning the same.
VVHereas divers Writs of late time, issued under the Great Seal of England, commonly called Shipwrits, for the charging of the Ports, Towns, Cities, Boroughs, and Counties of this Realm respectively, to provide and furnish certain Ships for his Majesties service: And whereas upon the execution of the same Writs, and Returnes of Certioraries thereupon made, and the sending the same by Mittimus into the Court of Exchequer, Processe hath bin thence made against sundry persons pretended to be charged by way of contribution, for the making up of certain sums assessed for the providing of the said Ships, and in especiall in Easter Tearm, in the thirteenth yeare of the Reign of our Soveraign Lord the King that now is a Writ of Scire facias was awarded out of the Court of Exchequer, to the then Sheriffe of BUCKINGHAM-SHIRE, against IOHN HAMDEN Esquire to appeare and shew cause, why hee should not be charged with a certain summe so assessed upon him, upon whose appearance and demurrer to the proceedings therein, the Barons of the Exchequer, adiourned the same case into the Exchequer Chamber, where it was solemnly argued divers dayes and at length it was there agreed by the greater part of all the Justices of the Courts of Kings Bench, and Common Pleas, and of the Barons of the Exchequer there assembled, that the said Iohn Hambden should be charged with the said summe so as aforesaid assessed on him; The maine grounds and reasons of the said Iustices and Barons which so agreed, being that when the good and safety of the Kingdome in generall is concerned, and the whole Kingdome in danger, the King might by writ under the Great Seale of England, command all his Subjects of this his Kingdom, at their charge to provide and furnish such number of Ships with Men, Victualls, and Munition, and for such time as the King should think fit, for the defence and safegard of the Kingdome, from such danger and perill, and that by Law the King might compell the doing thereof, incase of refusall, or refractarinesse, and that the King is the sole Iudge both of the danger, and when, and how the same is to be prevented, & avoided, according to which grounds & reasons, at the Iustices of the said courts of Kings Bench, & Common Pleas, & the said Barons of the Exchequer having bin formerly consulted with by his Majestis command, had set their bands to an extraiudiciall opinion expressed to the same purpose, which opinion with their names thereunto was also by his Maiesties command inrolled in the Courts of Chancery, Kings Bench, Common Pleas, and Exchequer, and likewise entred among the Remembrances of the Court of Star-Chamber, and according to the said agreement of the said Iustices, and Barons, judgement was given by the Barons of the Exchequer, that the said IOHN HAMPDEN should be charged with the said summe so assessed on him; And whereas some other Actions and Processe depend, and have depended in the said Court of Exchequer, and in some other Courts against other persons, for the like kind of charge, grounded upon the said Writs, commonly called SHIPWRITS, all which Writs, and proceedings as aforesaid, were VTTERLY against the Law of the Land.
Be it therefore declared and enacted by the Kings most Excellent Maiestie, and the Lords and Commons in this present Parliament assembled, and by the authority of the same, That the said charge imposed upon the Subject, for the providing and furnishing of Ships, commonly called Ship-money, and the said extraiudiciall opinion of the said Iustices and Barons, and the said Writs, and every of them, and the said agreement or opinion of the greater part of the said Iustices and Barons, and the said Iudgement given against the said IOHN HAMPDEN were, and are contrary to, and against the Lawes and Statutes of this Realm, the right of property, the liberty of the Subiects, former resolutions in Parliament, and the PETITION OF RIGHT made in the third yeare of the Reign of his Maiestie that now is.
And it is further declared and enacted by the authority aforesaid, That all and every the Particulars prayed or desired in the said PETITION OF RIGHT, shall from henceforth be put in execution accordingly, and shall be firmly and strictly holden and observed, as in the same PETITION THEY ARE PRAYED AND EXPRESSED, and that all and every the Records and Remembrances of all and every the Iudgement, Inrolements, Entry and proceedings as aforesaid, and all and every the proceedings whatsoever, upon or by pretixt of colour of any of the said Writs, commonly called Shipwrits, and all and every the Dependents on any of them, shall be deemed and adiudged to all intents, constructions, and purposes to be utterly void and disannulled, and that all and every the said Iudgement, Inrolments, Entryes, Proceedings, and Dependents of what kind soever, shall be vacated and cancelled in such manner and forme as Records use to be that are vacated.
An Act for the prevention of vexatious proceedings touching the Order of Knighthood.
VVHereas upon pretext of an antient custome, or usage of this Realm of England, The men of full age being not Knights, and being seised of Lands or Rents, of the yearly value of forty pounds, or more (especially if their seising had so continued by the space of three years next past) might be compelled by the Kings writ, to receive or take upon them the order or dignity of Knighthood, or else to make Fine for the discharge or respite of the same; Severall Writs about the beginning of his Majesties reign issued out of the Court of Chancery, for Proclamations to be made in every County to that purpose, and for certifying the names of all such persons, and for summoning them personally to appeare in the Kings presence before a certain day, to be there ready to receive the said Order or Dignity: Vpon returne of which writs, and transmitting the same with their Returns into the Court of Exchequer, and upon other Writs for further inquiry of the names of such persons issuing out of the said Court of Exchequer, Processe by Distringas was thence made against a very great number of persons, many of which were altogether unfit, in regard either of estate or quality, to receive the said Order or Dignity, and very many were put to grievous Fines and other vexations for the same, although in truth it were not sufficiently known how, or in what sort, or where they, or any of them should, or might have addressed themselves for the receiving the said Order or Dignity, and for saving themselves thereby from the said Fines, Processe, and vexations: And whereas its most apparent that all and every such proceedings, in regard of the matter therein pretended, is altogether uselesse and unreasonable; May it therefore please your most Excellent Maiestie that it be by authority of Parliament declared and enacted.
And be it declared and enacted by the Kings most excellent Maiestie, and the Lords and Commons in this Parliament assembled, and by the authority of the same, That from henceforth no person or persons of what condition, quality, estate or degree so ever shall at any time be distrained or otherwise compelled by any writ, or processe of the Court of Chancery, or Court of Exchequer, or otherwise by any meanes whatsoever, to receive or take upon him or them respectively, the Order or Dignity of KNIGHTHOOD nor shall suffer or undergoe any fine, trouble, or molestation whatsoever, by reason or colour of his or their having not received, or not taken upon him or them the said order or dignity: And that all and every Writ or Processe whatsoever, and all and every proceeding which shall hereafter be had or made contrary to the intent of this Act, shall be deemed and adiudged to be utterly void: and that all and every Processe proceeding, and Charge now depending by reason or colour of the said pretended custome, or writs aforesaid, or of any the dependants thereof, shall from henceforth cease and stand, be and remain discharged and utterly void; Any former Law or Custome, or any pretence of any former Law or Custome, or any other matter whatsoever to the Contrary in any wise notwithstanding.
I shall conclude this collection at present with the Bill of Attainder, past against Thomas Earl of Strafford this present Parliament, as I find it printed in the 303. pag. of a book printed for Will. Cook at Furnifalls Inne gate in Holbourne 1641. called Speeches and Passages of this Parliament, from the 3. Novemb. 1640. to this instant Inne 1641. which thus followeth.
VVHereas the Knights, Citizens, and Burgesses of the House of Commons, in this present Parliament assembled, have, in the name of themselves, and of all the Commons of England, impeached Thomas, Earle of Strafford of high Treason, for endeavouring to subvert the Antient and Fundamentall Lawes and Government of his Maiesties Realms of England and Ireland, and to introduce an Arbitrary and Tyrannicall Government against Law in the said Kingdoms; and for exercising a tyrannous and exhorbitant power, over and against the Lawes of the said Kingdomes, over the Liberties, Estates, and Lives of his Maiesties Subiects; and likewise for having by his own authority, commanded the laying and asseising of Soldiers upon his Subiects in Ireland, against their consents, to compell them to obey his unlawfull commands and orders made upon paper Petitions, in causes between party and party, which accordingly was executed upon divers of his Maiesties Subiects in a warlike manner, within the said Realm of Ireland; and in so doing did LEVIE WARRE against the Kings Maiestie and his liege people in that Kingdome; And also for that he upon the unhappie Dissolution of the last Parliament did slander the House of Commons to his Maiestie, and did councell and advise his Maiestie, that he was loose and absolved from the rules of Government, and that he had an Army in Ireland, by which he might reduce this Kingdome; for which he deserves to undergoe the pains and forfeitures of high Treason.
And the said Earl hath been also an Incendiary of the wars, between the two Kingdoms of England and Scotland: all which offences have been sufficiently proved against the said Earle upon his impeachment.
Be it therefore enacted by the Kings most Excellent Maiesty, and by the Lords and Commons, in this present Parliament, and by authority of the same, that the said Earl of Strafford for the hainous crimes and offences aforesaid, stand, and be adiudged and attainted of high Treason, and shall suffer such pain of death, and incurre the forfeitures of his Goods, and Chattells, Lands, Tenements, and Hereditaments of any estate of free-hold or Inheritance in the said Kingdoms of England and Ireland, which the said Earl, or any other to his use, or in trust for him, have or had the day of the first sitting of this present Parliament, or at any time since.
Provided that no Iudge or Iudges, Iustice or Iustices whatsoever, shall adiudge or interpret any Act or thing to be Treason, nor in any other manner than he or they should or ought to have done before the making of this Act, and as if this Act had never been had or made. Saving alwayes unto all and singular persons and bodies, politique and corporall, their Heires and Successors, others then the said Earl and his Heires, and such as claim by, from, or under him, all such right, title, and interest, of, in, and to all and singular, such of the said Lands, Tenements, and Hereditaments, as he, they, or any of them, had before the first day of this present Parliament, any thing herein contained to the contrary notwithstanding.
Provided that the passing of this present act, and his Maiesties assent thereunto, shall not be any determination of this present Sessions of Parliament, but that this present Session of Parliament, and all Bills and matters whatsoever depending in Parliament, and not fully enacted or determined. And all Statutes and Acts of Parliament, which have their continuance untill the end of this present Session of Parliament, shall remain, continue, and be in full force, as if this Act had not been.
Now after these small collection of Statutes. I shall give you some generall heads of things that I conceive are very necessary for you to know, for the preservation of your lives, liberties, and estates, in this murdering robing plundering, and law and liberty destroying age, and because tythes are of such concernment to al the honest & nown substantive freemen of England; and so dayly a grievance to the conscientious and moral iust men of this Kingdome, by reason of the Priests and persons coveteous indeavouring to rob the people of there truly comeby goods, which they have no right unto, either by the Lawes of God, reason, equity or nature, against which that you may be the better fortified, I shall insert here the plea and answer of William Browne unto the bill of the parson of Stepny, with some marginall notes upon it, and some other things depending upon it. The plea thus followeth.
THe said defendant by protestation not confessing nor acknowledging any thing in the said bil of cõplaint material against the said defendant to be true, but rather devised & set forth of purpose to put him this defendant to wrongfull vexation costs and charges, and expences in Law; for plea saith, that by the plantifes own shewing forth, the complainant hath no just cause to sue this defendant upon his said bill in this honourable Court, neither is this defendant compellable to answer the same, for that the said complainant by his said bil alleadgeth and saith, that there is and time out of minde (where of the memory of man is not to the contrary) hath been an ancient custome and usage that the inhabitants of the said parish, have alwayes paid unto the Vicars of the said parish for the time being, a composition rate for milch Cowes, orchards, gardens, lands, and sowes, and oblations of poultry, as in the said bil of complaint is set forth, which if any such custome and usage be, the same is triable at the COMMON law,† and not in this honourable Court upon the said bill of Complaint: And therefore this Defendant humbly prayeth judgement of this honourable Court, whether he shall make any further answer to the said complainants, Bill of Complaints. Neverthelesse if he this Defendant shall be ordered to make any further, or other answer unto the said Complainants Bill of Complaint, then and not otherwise, this Defendant, all benefit and advantage of exception to the uncertainties & insufficiencies of the said Complainants said Bill, still to this Defendant now, and at all times hereafter saved, for further answer thereunto, this Defendant saith; That be verily beleeveth it to be true, that for some hundred of yeares while the Kingdome groaned under the Papall yoake, and was subiect to the Popes supremacie, Tyths and certaine manner of Tything and other oblations were exacted and taken by the PAPALL Bishops, Parsons, Vicars, and Curates of many Parishes, and of a great part of this Kingdome, untill the Popes supremacie and iurisdiction within this kingdome, and all appeale to the sea of Rome were abrogated and annulled by divers severall Statutes.* And this Defendant verily beleeveth, that the Popish Bishops, Parsons, and Vicars, and their substitutes, since retained and continued in the Church of England, did afterwards receive and take tythes, and certain manner of tything and other oblations of several parishes within this kingdome, for their wages, Cure and reading the Book of Common Prayer.† And this Defendant saith, that the said Inhabitants of the said Parish, in the said bill mentioned or any of them, did never pay or were ever accustomed to pay unto any Vicars of the said parish, the said composition for milch Cowes, Orchards, Gardens, Lands, and Sowes, or other oblations as in the said bill is, and set forth, or any other composition or rate for the same, but only to such Vicars thereof as were made and ordained Ministers by the Bishops, some or one of them.† And what composition or rate for milch Cowes, Orchards, Gardens, Lands or Sowes, or other oblations the said Inhabitants or any of them did pay unto any of the said Vicars for the time being of the said parish in the said Bill mentioned, since the abolishing of the Popes supremacie, the same was payed for officiating, reading the book of Common Prayer, and administring, the Sacraments, and preaching according to the Canons and constitutions of the Bishops and their Clergie, *And what composition rate for tythes or other oblations this Defendant or any of the said Inhabitants have payed unto the said Complainant, the same was unduly exacted by the Complainant, so as the said complainant hath no right nor title by colour of any such prescription or custome to have and demand the said composition rate, for the premises or any of them, on this Defendant, as in the said bill is set forth and demanded, for that by authority of this present Parliament the function and Ministrie of Bishops, Parsons, and Vicars are abrogated and avoided. *And likewise the book of Common prayer, and the administring of the Sacraments, and preaching according to the Bishops Canons and injuctions by authority of this present Parliament, utterly taken away and disannulled.† And this Defendant doth conceive no tyth or composition rate for tyth, nor any other oblations for Poultrie are due by law, but have been taken no otherwise then by Iewish or Popish institution,* and provision, as by the Statute made for the payment of tythes, and oblations, whereunto reference being had will appeare, the same being made only for the maintenance of the Popish and prelaticall Clergie and Ministrie and no other. And he this Defendant beleeveth is to be true, and hopeth to prove, that neither by the law of God nor man, any tyths, composition, rates for tyths, or other oblations for poultrie ought to be paid to any persons or Vicars or other Ecclesisticall Minister, or Ministers whomsoever, for this Defendant saith, that by the Parliaments Protestation made by authority of this present Parliament the 5. day of May, 1641. against popery and popish innovations, all Lawes, Customes, Acts and Ordinances for the payment of tyths or manner of tything, rare or composition for tyths or other oblation to any parson or Vicars of any parish within this Kingdome, their names and offices being Popish and Antichristian, the same having no foundation in the word of God are utterly void and null. And this Defendant denyeth that he ever did, nor now doth combin, practice, or confederate with the other Defendants named in the said Bill or any of them, or with any other person or persons whatsoever to wrong the said Complainant, as in the said Complainants bill is untruly suggested. And without that this defendant had & depastured within the said Parish, eight and twenty Cowes within the said parish, as in the Complainants bill is alledged, or that the Complainant is Debtor or Accountant to the King, or that the said Complainant is unlawfully intituled to have, receive, and take the Viccarage, tyth, or the composition, rate for tyth, and the said oblations as were formerly payed to the POPISH VICCARS, HIS PREDICESSORS if in case the same had been payed, as is the said bill is alledged. And without that any other matter or thing in the said bill of complaint contained materiall or effectuall to be answered unto, and not herein fully answered unto, confessed and avoided, traversed or denyed is true: therefore this Defendant humbly prayeth to be dismissed out of this honourable Court, with his reasonable costs and expences in this behalfe wrongfully had and sustained.
Mr. Fage Senior Councellor.
But what just proceeding Mr. Brown had upon this Plea before the present Barons of the Exchequer, his own Petition to themselves, and to the House of Commons against them, will very fully demonstrate, the first of which thus followeth.
THat Iosua Hoyle now Vicar of the Parish of Stepney, ever since he got the Vicarage hath been very troublesome, and vexatious, to your Petitioner, and other the Parishioners there, endeavouring by illegall, forcible and indirect wayes and meaness, to extort from them tythes, and certaine manner of tything, which by law he could not demand nor they compelled to pay, as by their learned councell, they are informed and hope to prove, if they may have the benefit of the Law, which is the inheritance of every free-borne, English-man.
That under colour of the Ordinance for tythes the said Mr. Hoyle did take from your petitioner goods of a considerable value, for which your petitioner hath no satisfaction.
That the said Mr. Hoyle the more to vex your petitioner, causelesly served your petitioner with a Subpena to answer a bill in the Court of exchequer for pretended tythes, and other duties to which Bill your petitioner in Michaelmas terme last, answered by advise of his Councel learned in the Law, divers other of the said parishioners being named defendants in the said Bill, but not served till Easter terme last, of purpose to put them to the more charges, and weary them out with Multiplicity of Suits, and unnecessary Expences in Law.
That the said Mr. Hoyle procured an Order of this Court that your Petitioner should shew cause by a certaine day in the last Terme why your petitioners Plea, and Answer, should not be taken of the file as scandalous, and your Petitioner ordered to pay cost, and make a further and better answer.
That your petitioner in obedience to the order of the Court by his councell Mr. Norbery and Mr. King, attended several dayes to shew cause for allowing his plea and answer, but when that cause was called upon, your petitioners Councellours were not suffered to shew forth to the Court the sufficiencie in Law of your petitioners said plea and answer, Baron Atkins telling your petitioners counsellers that Mr. Fage who subscrib’d the same, his hand should never be received again in that court, & further threatn’d your petitioners councellours saying that if they or any other Councellours should appeare in any such cause, should be debarred from pleading in that Court, whereupon though the said Mr. Norbery & Mr. King were prepared able and ready & had undertaken to maintain your petitioners said plea and answer to be good and sufficient in law, was so over awed by Baron Atkins that for feare to offend him and the Court they were silenced, and so without further debate, or Councel heard, your petitioners Plea was over ruled, and this Answer Judged scandalous, and insufficient, and your petitioner further; ordered to pay forty shillings cost, and make further answer.
That your petitioner is a free-man of England, and by the great Charter of Liberty ought to be under the protection of the Law, and ought not to be condemned unheard, neither agreeth it with the honour and justice of this Court to deny Councell to plead and open their Clyents cases as was done in your petitioners case, which your petitioner hopes you will rectifie and alow his Councel to be reheard, and to set forth the sufficiencie in Law, of his Plea and Answer, whereby your petitioner may not have cause, or occasion, to Appeale from this Court, or complaine of you to the Parliament for obstructing of Justice, which if your petitioner receive not timely redresse, and reliefe, in the Premises, he must be constrained to do.
That without ever any order, or further processe serving the said Mr. Hoyle for want of further answer hath prosecuted severall processes of contempts against your petitioner, and threatned to lay your petitioner in Goale, upon a Commssion of Rebellion for the same, and hath served your petitioner with a Subpena for forty shillings cost upon your petitioners first plea, and answer, which Mr. Hoyle will without doubt do, if your honour give not present order for stay of further proceedings upon the said last Subpena, and processe of contempt already taken out against your petitioner.
Your Petitioner therefore humbly prayeth, that you wil be pleased for the love and honour of justice and removeing the cause of your petitioners appeale from this Court and complaining of you, that you will give direction for stay of the said cost and proceedings upon the said processes of contempts against your petitioner, and that you wil declare and order that your Petitioners councel may be reheard without check or offence and allowed freely to shew out to the Court the sufficiencie in Law of your petitioners plea and answer to the end there may not be a failure of justice through you, and your petitioner left without relief or remedy, by being denied to be heard upon the mirit and equity of his cause according to Law, which in the worst of times, by the worst Iudges was never done to any either in the case of ship-money, or any other cause as Burton Prinn. and Bastwicks cases, all which your petitioner refereth to your honourable consideration.
And prayeth as before he hath prayed. &c.
THat Josua Hoyle, Vicar of the parish of Stepney aforesaid, in Michaelmas terme last, exhibited his bill in the Court of exchequer against your petitioner, and divers other parishioners there, for substraction of tythes, to which bill your petitioner by his learned councell pleaded and answered the same terme, but the said Mr. Hoyle obtained an order from that Court, for your petitioner to shew cause, why his plea, and answer should not be taken of the file as scandalous.
That your petitioner according to the order of that Court, the 18. May last, by his counsell Mr. NORBERY and Mr. KING offered to the Court to maintaine his said plea and answer, to be good and sufficient in Law, but Baron Atkins one of the Barons of that Court, would not suffer your petitioners councel to open your petitioners cause, in a threatning manner telling them, that the Councellour who subscribed your petitioners Plea and answer, should never be allowed in that Court, and if they (meaning Mr. NORBERY and Mr. KING) or any other Councellour did appeare in any such cause, they should never againe plead in that Court, and so your petitioners said councell were overawed, and silenced, that without further heareing, or debate, the Court adjudged your petitioners plea, and answer scandalous; and further ordered Mr. Fage who signed the same, his hand should never be allowed to any pleadings in that Court, and your petitioner to pay forty shillings cost to Mr. Hoyle as by the order in the Court in that cause will appeare, which doing of the said Baron Atkins and the said last recited Order are contrary to the rule of justice, and the great Charter of Liberty, wherein it is said Iustice and Right shall de denied to no man.
That the said Mr. Hoyle since, without ever serving the said Order upon your Petitioner, having procured severall processes of contempts against him, for want of further answer, and served him with a Subpena for the 40. s. cost, your petitioner thereupon having petitioned the Barons of that Court for justice, and to have libertie to show forth to the Court, the sufficiencie in law of the said plea and answer, which Mr. NORBERY and Mr. KING had before undertaken to your petitioner to doe, and offered to the Court if they might have been heard, (as they were not) to have maintained for good and sufficient in law, which petition here unto annexed, Baron Trevers having read and acquainted his Brother Atkins with the contents thereof, Baron Atkins replyed and said, let Brown complain if he will, I have done him justice, his businesse shall be no more heard. And thus your Petitioner being deprived, and destitute of all meanes of obtaining right and justice in that Court, is constrained for his own safetie, to for sake his own house and familie, and live as an exile and fugitive, Mr. Hoyle threatning to cast him into prison, upon the said Barons Order, which doubtlesse he will doe to your petitioners undoing, unlesse your petitioner be protected by the justice of this honourable house.
That your petitioner hath largely and many wayes manifested his good affection to the Parliament, in his free and voluntary gifts and contributions, over and above his abilitie, and by his ready payment of all taxes and assessements, having long voluntarily served the Parliament in this war against the enemy, to the often endangering his life, and the much impoverishing his estate, having lost 16. Horses in the Parliaments service, for which he hath not had one penny satisfaction, besides almost 200. l. due to him in Arrears for his service as a Wagoner.
That as your Petitioner is informed Mr. Hoyle by law, cannot sue your petitioner in any Court for substraction of Tyths, then in the Court Christian so called,* the same being now taken away by authority of Parliament.* And so Mr. Hoyle if in case the same were due, as they are not, he hath no meanes or the recovery of the same, but by the Ordinance of this present Parliament, which your petitioner did never oppose whensoever the said Mr. Hoyle did take your petitioners goods upon the same, as sometimes he did amounting to a considerable value.
Your Petitioner therefore humbly prayeth this honourable House will be pleased to take your Petitioner under protection, to stay the contempts and illegall proceedings of Mr. Hoyle in that Court against your petitioner, and to call the said Barons of the Exchequer, and in particular Baron Atkins before you, to answer this Petition, to the end according to your many Declarations, Promises, and Protestations, instice may not be obstructed, or your Petitioner denyed the benefit of the law, or priviledge of a free borne Denizon. And the said Barons receive such condigne punishment for their uniust dealing and proceedings against your Petitioner, as shall seeme meet and agreeable to the wisedome and iustice of this honourable House. The like not any of the Iudges in the worst of times durst ever doe, that ever your Petitioner heard of: And your Petitioner if he may be protected and allowed by this honourable House, to prosecute this Petition, he will give securitie to make good the contents thereof.
And as in duty bounden, your Petitioner
shall ever pray, &c. Will Brown.
Take notice and marke it well, that though tyths are by law to be sued for in Ecclesiasticall Courts only, yet trebble damages for none payment of tyths, are to be sued for by the same Statute of the 2. and 3. Ed. 6 13. in Civill Courts at the Common Law, and therefore the best plea to a bill of trebble damages, is that you owe the Parson, &c, no tyths at all, and put him to prove the first.
Here you see what gallant Iustice is to be found amongst the Iudges at Westminster Hall that the pleaders of honest causes cannot be suffered to presse the law freely for their Clyents, but must be threatned and commanded to hold their peaces before they have pressed fully either law or reason for those that hire them to be their mouths to doe it for them.
Is this to performe their oath? which you may read before, pag. 10. In which they sweare to doe equall law, and execution of right to all kinds of men, rich and poore, without having regard to any person, or persons whatsoever; And that they shall deny to no man common right, by the Kings letters, nor none other mans, nor for no other cause, and in case any letters or commands shall come to them, contrary to the law, that they shall doe nothing by such letters or commands, but proceed to execute the law not withstanding.
Or is not this their dealing, with Mr. Brown and his Councell a cleare demonstration of their breaking their Oaths? and absolutely forswearing themselves. And therefore seeing neither Mr. Brown, nor no man else that complains to the parliament against the injustice of the Iudges, can get the least justice against them, is not this, and other of their visible breaking of their Oaths a true and legall cause to indict them for perjury? upon which if conviction follow, they are ipso facto, disabled for ever to sit Iudges any more, or to be witnesses in any causes whatsoever, betwixt party and party.
For this is to be taken notice of, that if a Iury bring in a false verdict against the expresse evidence given in unto them, that thereupon by law, they are to have their houses rased down to the ground, and never to be built againe, their trees puld up by the roots, their ground to lye fallow and wast, without tillage or use, their names and their childrens to be infamous, reproachfull, and contemptable, &c. And therefore without doubt, the Iudges punishment for palpable injustice, must needs be much more then theirs. And an excellent piece of justice, and worth the highest commendation, it was in King Alfred, to hang 44. Iustices in one year as murtherers, for their false judgments*.
But seeing the Parsons, Vicars, & curates cannot recover their tyths by law, they have unjustly & illegally got up a custom, to come or send their illegall Agents into mens grounds or houses, to take away their goods and chattells, and men are so foolish as to let them, although by law, if any man under any pretence of authority whatever, shall dare to endeavour by force to come into a free-mans house, unlesse it be under pretence of Treason or Felony committed, or suspition of Treason, or Felony, or to serve an execution after Iudgement for the King, the free man may stand upon his guard, as against so many Theeves and Robbers; and if he shoot or kill them every one, I know nothing to the contrary, but they have their mends in their own hands, and they, or none for them, can iustly requre any of him or them, that so in his or their own legall defence destroyes them.
And if they take away your goods as usually they doe, you have your remedy at law by way of Replevie to get* your goods againe, putting in baile to the Sheriffe to answer the law against him that distrained your goods, & so you shall bring him to a tryal at law to prove his title or clame to your goods, and this I conceive to be cleare from the Statutes of Marle bridge, in the 52. H. 3. Anno 1267. Chap. 1, 2, 3, 4. 15, 21. and 3. 8. 3. Chap. 17. Compared with Sir Edward Cooks Exposition upon those severall Statutes, in the 2. part of his Institutes, fol. 103, 104, 105, 106, 107. 131, 132, 133. 139. 140, 141. 193, 194, and his discourse in his first part Justitutes, lib. 2. chap. 12. Sect. 219 fo. 143.
But that you may not rest in an implicite beliefe, I shall give you the fore mentioned Statutes verbatum, which thus followeth.
WHereas at the time of a commotion late stirred up within this Realme, and also sithence many great men, and divers other refusing to be justified by the King and his Court, like as they ought and were wont in the time of the Kings noble progenitors, and also in his time, but took great revenges and distresses of their neighbours, and of other, untill they had amends and fines at their own pleasure. And further some of them would not be iustified by the Kings Officers, nor would suffer them to make delivery of such distresses as they had taken of their own authority: It is provided, agreed, and granted, That all persons as well of high as of low estate, shall receive Iustice in the Kings Court. And none from henceforth shall take any such revenge or distresse of his own authority without award of our Court, though he have dammage or injury, whereby he would have amends of his neighbour either higher or lower. And upon the foresaid Article it is provided and granted, that if any from henceforth take such revenges of his own authority,11. H. 4. fo. 2. 47. Ed. 3. fo. 7. 18. Ed. 3. fo. 48. 41. Ed. 3. fo. 26. 17. Ed. 3. fo. 9. without award of the Kings Court, (as before is said) and be convict thereof, he shall be punnished by fine, and that according to the trespasse. And likewise if one neighbour take a distresse of another without award of the Kings Court, whereby he hath damage, he shall be punished in the same wise, and that after the quantitie of the trespasse. And neverthelesse sufficient and full amends shall be made to them that have sustained losse by such distresses.
41. E. 3. fo. 26. 47. E. 3. fo. 7. Fitz. Barre. 281. MOreover none (of what estate so ever he be) shall distrain any to come to his Court, which is not of his Fee, or upon whom he hath no Iurisdiction, by reason of Hundred, or Bayliwick, nor shall take Distresses out of the Fee or place where he hath no Baliwick or Iurisdiction. And he that offendeth against this Statute, shall be punished in like manner, and that according to the quantitie and qualitie of the Trespasse. 3. Ed. 1. 16. Regist fo. 97.
Fitz. Rascous 20. Bro Trespas 16. 384. Fitz. Dan. 10. Fitz. Heriot. 5. 5. H. 7. fo. 9. 9. H. 7. fo. 14. 10. H. 7. fo. 2. 10. Ed. 4. fo. 7. 9. H. 6. fo. 20. Fitz. Trespas 196. 3. Ed. 1. 17. Fitz. N. B. fo. 102. c. V. N. B. fol. 48. IF any, of what estate soever he be, will not suffer such Distresses as he hath taken, to be delivered by the Kings Officers, after the Law and Custome of the Realme, or will not suffer summons, Attachments, or Executions of Iudgements given in the Kings Court, to be done, according to the Law and Custome of the Realme, as is aforesaid, hee shall be punished in manner aforesaid, as one that will not obey the Law, and that according to the quantitie of the Offence. And if any, of what estate soever he be, distrain his Tenant for Services and Customes being due unto him, or for any other thing, for the which the Lord of the Fee hath cause to distraine, and after it is found, that the same services are not due, the Lord shall not therefore be punished by Fine, as in the cases as foresaid, if he doe suffer the Distresses to be delivered according to the Law and Custome of the Realme, but shall be amerced as hitherto hath been used, and the Tenant shall recover his damages against him.
Fitz. Barre. 120. 275. Fitz. Distresse 1, 2. 16. Fitz. Avowry 192. 30. Ass. pl. 38. 29. Ed. 3. fo. 23. Kel. fo. 50. 41. Ed. 3. fo. 26. 29. Ed. 3. fo. 24. 41. Ed. 3. fo. 26. 3. Ed. 1. 16. 1. & 2. Ph. & M. 12. 51. H. 3. 28. Ed. 1. 12.NOne from henceforth shall cause any distresse that he hath taken, to be driven out of the County where it was taken. And if one neighbour doe so to another of his own authority, and without judgement, he shall make fine (as above is said) as for a thing done against the Peace. Neverthelesse, if the Lord presume so to doe against his Tenant, he shall be grievously punished by amerciement. Moreover Distresses shall be reasonable, and not too great. And he that taketh great and unreasonable distresses, shall be grievously amerced for the excesse of such distresses. Regist. fo. 97.
IT shall be lawfull for no man from henceforth, for any manner of cause, to take Distresses out of his Fee, nor in the Kings high way, nor in the common street, but only to the King or his Officers, having speciall authority to doe the same.
Raft pla. fo. 216. Regist. fo. 98. 183. St. 9. Ed. 2. 9. Fitz. N. B. fo. 90. 173. Co. lib. 8. fo. 60. 7. H. 7. fo. 1. 22. Ed. 4. fo. 49. Fitz. Barre. [Editor: illegible word] Fitz. Trespas 188.NOne from henceforth (except our Lord the King) shall hold in his Court any Plea of false judgement, given in the Court of his Tenants: For such Plea specially belongeth to the Crown and Dignitie of our Lord the King Regist. fol. 15. V. N. B. fo. 16. Fitz. N. B. fo. 17. Raft. pla. fo. 342. Coke pla. fo. 395.
IT is provided also, that if the Beasts of any man be taken, and wrongfully withholden, the Sheriff, after complaint made to him thereof, may deliver them, without let or gainsaying of him that tooke the Beasts, if they were taken out of Liberties. And if the Beasts were taken within any Liberties,Fitz. briefe 511. 842. Fitz. Avowry 87. 221. 231. and the Bailiffes of the Libertie will not deliver them, then the Sheriffe, for default of those Bailiffes, shall cause them to be delivered, Regist. fo. 82. &c.
IT is provided also, that if any from henceforth take the Beasts of other, and cause them to be driven into a Castle or Fortresse, and there within the close of such Castle or Fortresse,Fitz. Faux Iudgment 7, 8. 10. 14. 26. 18. Ed. 3. ch. 6. doe withhold them against gage and pledges, whereupon the beasts be solemnly demanded by the Sheriff or by some other Bailiffe of the Kings at the suit of the plaintiffe, the Sheriffe or Bailiffe taking with him the power of the Shire or Bayliwick doe assay to make Replivin of the Beasts, from him that took them, or from his Lord, or from other being servants of the Lord (whatsoever they be) that are found in the place, whereunto the beasts were chased: if any deforce him of the deliverance of the Beasts, or that no man be found for the Lord or for him that tooke them, for to answer and make the deliverance,Dyer. fo. 245. Bro. Riot.. 2. 3. Bro. Parl. 198. Fitz. Return de Viscount 17. Co. Inst. 145. [Editor: illegible word] 3. Ed. 1. ch. 17. Fitz. N. B. fo. 68. V. N, B. fo. 44. after such time as the Lord or taken shall be admonished to make deliverance by the Sheriffe or Bailiffe, if he be in the Country, or neere, or there whereas he may be conveniently warned by the taker, or by any other of his to make deliverance, if he were out of the Countrey when the taking was, and did not cause the Beasts to be delivered incontinent, that the King for the trespasse and despite shall cause the said Castle or Fortresse to be beaten down without recovery: And all the damages that the Plaintife hath sustained in his beasts, or in his gainare, or any otherwise (after the first demand made by the Sheriffe or Bailiffe of the beasts) shall be restored to him double by the Lord, or by him that tooke the beasts, if he have whereof: and if he have not whereof, he shall have it of the Lord, at what time or in what manner the deliverance be made after that the Sheriffe or Bailiffe shall come to make deliverance. And it is to wit, that where the Sheriffe ought to return the Kings writ to the Bailife of the Lord of the Castle, or Fortresse,Bro. Riot. 2. 3. 52. H. 3. 3. 13. Ed. 1. 39. V. N. B. fo. 43. 44. Regist. fo. 85. 52. H. 3. 21. Regist. fol. 81. Fitz. N. B. fo. 68. F. or to any other to whom the return belongeth, if the Bailife of the Franchise will not make deliverance after that the Sheriffe hath made his return unto him, then shall the Sheriff doe his office without further delay, and upon the foresaid paines. And in like manner deliverance shall be made by Attachment of the plaintife made without writ, and upon the same paine. And this is to be intended in all places where the Kings writ lyeth. And if that be done in the Marches of Wales, or in any other place where the Kings Writs be not currant, the King which is soveraign Lord over all, shall doe right there unto such as will complain.
Now after this businesse of Tyths, which by the universall complaint against it all over the Kingdome, appeares to be an intollerable, and insupportable burthen, I shall a little open unto you, another mischiefe of far more dangerous consequence, and that is the subvertion of our fundamentall lawes and liberties; and the exercising of an Arbitrary, Tyrannicall government, which I find to be the principall crime laid to the charge of the late Earl of Strafford, for which he lost his head upon the Tower Hill at London, in the yeare 1641. And that it was his principall crime, appeares clearly to me by his Bill of Attainder, which you may read before, pag. 29. and by the first Article of his impeachment, which as I find it printed in the 117. pag. of a book called Speeches and Passages of this Parliament, from the 3. of Novemb. 1640. to Iune 1641. printed for Will Crook at Furnifalls Inne gate in Holbourne. 1641. The very words of which thus followeth.
That he the said Thomas Earl of Strafford, hath traiterously endeavoured to subvert the fundamentall lawes and government of the Realmes of England and Ireland, and in stead thereof to introduce an Arbitrary and Tyrannicall Government against law, which he hath declared by trayterous words, councells, and actions, and by giving His Majestie advice by force of Armes, to compell his loyall Subiects to submit thereunto.
Now whether this very traiterous crime of the Lord of Strafford, be not really acted since the warres ended, both by the present House of Lords, and by the present Grandees in the Army, I thinke is obvious to every knowing, rationall, understanding, unbiased mans eye in England; in that both of them have taken upon them to meddle with things not within their cognizance or jurisdiction, and to out men of their lives, liberties and properties, without any legall processe and proceeding, all the ordinary Courts of Iustice in England being open, where only and alone all causes whatsoever between party and parties desidable by the lawes of this land, are to be tryed and determined and no where else, it being as lawfull for a Iudge, Iustice of peace, or a Constable to make Laws, as for a House of Lords to execute Laws, their legall and proper work, at most upon their own usurped principalls being to make new laws & repeal old laws, to give their consent to raise mony for the preservation of the publique, and to see it be rightly disposed of, (but they themselves ought not in the least to finger it, much lesse by votes to give it to each other, it being contrary to the Law of England for Fefees in trust (which they would have us to believe they* are) to give any thing to themselves), to punish all male Administrators of Iustice, and to heare and redresse all appeales upon eronious judgements, given or made in any of the Courts in Westminster-Hall, or elsewhere.
Yet notwithstanding have they Arbitrarily and Tyrannically summoned and convened men before them (for things desireable, and determinable only at Common Law) without any due processe of Law, and have taken upon them, contrary to all law, Iustice equitie, and conscience, to be both Informers, Prosecutors, Witnesses, Parties, Iurie, and Iudges, and thereupon have past most illegall, arbitrary, and tyrannicall censures upon the free Commons of England, and thereupon have distroyed and outted them of their lives, liberties, properties, free holds and estates, when as by the fundamentall law of the Land, no Iudge whatsoever, can be Iudge of matter of Law and fact both, it being the proper right of the Iury of 12. men. of a mans Peers or Equalls to be Iudge of matter of fact, which must be proved by legall witnesses duly sworne, and not by the Complainer, Prosecutor, or Partie, and then the Iudge is only to be Iudge in matter of Law.
But in the first place I shal begin with the Grandees or Councel of war of the Armie, who have the most desperatest apostatised from their principles, that it is possible for men to do, and from their pretended patronising of the peoples liberties, and Arbitrarily, and Tyrannically have sought the ruine and utter destruction of all those amongst themselves, that have stuck close to the interest of the People, although they themselves made use of the very same persons and Principalls, to preserve themselves against that which they themselves called Tyranny in Mr. Hollis, and Sir Phillip Stapleton, &c. And that they have so done, I prove by the Pleas of Will. Thompson a late Corporall in the Army, Iohn Crosman a Trooper, John Engram late Capt. Lievt. of the Life Guard, and the Plea for the late Agents, made in Novemb. 1647. Which thus followeth.
First.THe arbitrary Government of the Army by Law Martiall (which is only necessary when an Army is marching against its enemy, or when no other Court of Iustice in a Land are open and free) was wholly dissolved at the Rendezvouz at New market, upon the 4. and 5. of Iune last, and this I prove by these following reasons.
1. They associated themselves only as a company of free Commons of England, to stand together upon the just principles, and law of nature and nations, to recover their own and all the peoples just rights and liberties, see the solemn Engagement upon Iune 4. The words are these We the Officers and Soldiers of the Army subscribing hereunto, doe hereby declare, agree, and promise to and with each other, that we shal not willingly disband, nor divide, nor suffer our selves to be disbanded nor divided, untill we have security, that we as private men or other the free-born people of England shall not remaine subject to the like oppression, iniury, or abuse as have been attempted. Compare the latter end of page the 4. with page 5. And upon their march towards London, in prosecution of his design, whereupon they associated, the General declared in his letter to the City, that they as English men insisted upon the settlement of the peace of the Kingdome, and the liberty of the Subject, which they had right to demand. See the letter from the Generall, and the Generall Officers at Royston upon Iune 10. page 2. 3. And in their further opening of their meaning and intentions in their agreeing together, or associating as before, they declared upon Iune 14. That they were not a mercenary Army, hired to serve the arbitrary power of a State, but continued in armes in judgement and conscience for the defence of their own and the peoples iust rights and liberties. Now the Army thus refusing to serve the Arbitrary power of the State and agreeing together as English men, to stand upon Principles of Right and Freedome, From hence.
1. Its cleare, that the Officers and Soldiers kept in a body, and so were an Army not by the wil of the State, but by their own mutuall Agreement.
2. From thence its as cleare that they not being an Army by the States will, they were not under those rules of Martiall Government, which were given by the will of the State to rule those which were a Military body or Army by their will and power.
3. From thence its also as cleare, as they continuing an Army at that time, not by the States will, power or Command, but their mutuall Agreement, they could be under no other government as an Army but such as they did constitute or appoint for themselves by mutuall agreement, and this leades to 22. Reason, proving the dissolution of the Armies government by Martiall Law.
4. The Soldiers with some Officers of the Army, having by mutual agreement gathered themselves into, or at least continued themselves a Military body or Army, to stand upon principles of right and freedom, did by the same mutual agreement with or engagement to each other frame, constitute or appoint, a forme of government for themselves in their prosecuting that iust design of common right and freedome so themselves and the nation.
The wordes of the Engagement, pag. 4. 5. are those. Wee doe hereby declare, agree, and promise to and with each other, that wee shall not willingly disband, nor divide, nor suffer our selves to be disbanded or divided without satisfaction in relation to our grievences and desires heretofore presented, and security that we as private men or other free borne people of England shall not remaine subject to the like oppression and iniury as have been attempted, and this satisfaction and security to be such as shall be agreed unto by a Councell to consist of these generall Officers of the Army (who have concurred with the Army in the promises) with two Commission Officers, and two Soldiers to be chosen for each Regiment, who have concurred and shall concurre with us in the promises and in this agreement. Hereby a new Councell was constituted contrary to all Martiall Law, and Discipline, by whom only they ingaged to be ordeered in their prosecution of the ends for which they associated, and by consequence seeing they continued an Army by their own wils, and only to prosecute those ends of common right and freedome, this Engagement to be ordered only by that new Councell in their prosecution of those ends, extends to a whole rule of them as an Army.
Now that this Councell was wholly new, and in a way diverse or different from all Martiall Courts or Councels of Warre, that ever the sun beheld in a mercenary Army, and as different from the Councell by which this Army was formerly governed appeares thus.
1. The Members of this Councell by which they ingaged to be ordered, are different wholly from the Members of all former Councells in the Army.
1. The quallity of them is different, none but such as concurred in disobeying the Parliament, and in the Principles of common right and freedome, upon which they stood, were to be Members of this Councell, neither the Generall, nor the Lievtenant Generall themselves were to be Members of this Councell unlesse they had concurred in owning the Regiments refusall to disband, and in their ingagement or association, and by consequenes they had been no Officers, as will appeare hereafter.
In this all the Orders of Warre and Martiall Lawes were broken, for if the Generall, Lievtenant Generall, and Commissary Gen. Ireton, had not concurred, they could not all have cashiered one Officer that did concurre, all the Soldiers had beene Engaged to oppose them, pay they could not have cashiered one Soldier that joyned in the Engagement, for they promised each to other, not to suffer themselves to be divided before the ends of their Engagements was accomplished.
2. The station of the Members of this new councel in this Army was different from the station of al Members of former Councels, by the Engagement there was to be two Soldiers in no office out of every Regiment to have voices equall to the Generall himself in all votes, a thing never practised nor heard of man Army serving the will of a State.
3. The number of the Members of this Councel is different from al customes and rules of Martiall Discipline.
In this Councel, there was to be but foure of every Regiment with the General Officers which concurred, thus this Councel differed from all Customes in any Army in respect of the Members whereof it was constituted.
2. This new Councell differed from the rules of Warre in the manner of its constitution, this was not to be constituted by the Gens. wil or according to the degrees or officer of men in the Army, but in a Parliamentary way by the Soldiers free election, the Gen. it bound from calling an Officer to the Councell unlesse he be chosen by his Regiment.
3. Reason, proving the dissolution of Martiall Government in the Army.
The Gen. in associating with the Soldiers did in the very Engagement, give away all his power of exercising Martial Disciplin, he engaged to them & they to him, that they would not suffer themselves to be disbanded or divided, till the ends of their uniting were obtained. Hereby he divested himselfe of his arbitrary power of cashlering Officers and Soldiers at his pleasure, the cashiering one Officer or Soldier which associated with the body of the Army in the engagement, is a disbanding, at deviding one part of the Army from another, which he & the Army mutually reciprocally engaged, neither to attempt nor suffer; likewise by this engagement he divested himself of power to command the Soldiers to march to what distance he pleaseth one from an other, this is, an other kinde of dividing the Army which he enaged neither to effect, nor suffer.
4. Reason, proving the dissolution of the Government of the Army, by Law Martiall.
The whole Army by agreement or joynt consent cashiered all Officers at New maker Heath, that would not associate with them, and engage to stand for common right and freedom, though against the Parliament, and so they booted divers Officers out of the field, unhorsed some and rent their cloathes, and be at them: & this in the face of the General which acts weare death by Martiall Law; but this was an actuall declaration that the Army did admit of Officer, by mutuall agreement onely, and therefore Government by law Martiall was dissolved unlesse it had been established by mutuall consent throughout the Army, for Officers at that time being only admitted by mutuall consent they could have no power, but what was betrusted to them by the Soldiers.
2. Plea, But in case the Government of the Army by Law Martiall had not been dissolved by a mutuall ingagement, yet the very being of peace did dissolve it, for in the Petition of* Right its declared if a person ought to be adjudged by Law Martiall except in time of Warre and that all Commissions given to execute Martiall Law, in time of peace are contrary to the Lawes and Statutes of the Kingdome, and it was the Parliaments complaint that Martiall Law, was then commanded to be executed upon Soldiers for robbery, mutiny, or murther.
And it was setled as the undoubted right of every Englishman, that he should be punishable only in the Ordinary Courts of justice, according to the Lawes and Statutes of the Kingdome. By all this it appeares that it is illegall and unjust for the Officers of the Army to try or punish any Agent, or other by Law Martial, upon pretence of Muteny or any other offence: the whole Army stand as Englishmen, and if they offend are not exempted from the proceeding against them, and punishments to he inflicted upon them, by the lawes, and statutes of the Kingdome, and therfore cannot in Iustice be subject also to law martiall, so that all Agents and Soldiers now accused for mutiny, for their late prosecution of publick freedome, according to the agreement of the people, without their Officers consent shall unworthily betray their owne and their Countryes Liberty, if they shall submit to be tryed in any other way then by the knowne Lawes and statutes of the Land.
The forementioned Plea of William Thompson (who was lately a Corporal in Colonell Whaleyes Regiment, and was formerly cashiered at the head thereof, and yet after that imprisoned and indeavoured to be hanged for his honesty) thus followeth.
Vindicated against all Arbitrary uniust Invaders of them, and in particular against those new Tyrants at Windsore, which would destroy both under the pretence of Marshall Law.
The just Declaration, Plea and Protestation of William Thompson, a free Commoner of England, unjustly imprisoned at Windsore.
Delivered to his Excellency Sir Thomas Fairfax, and that which is called his Councell of Warre, the 14. of December, 1647.
Unto which is annexed his Letter to the Generall, wherein the said Plea was inclosed. Also a Petition of the rest of his Fellow-Prisoners to his Excellency.
May it please your Excellency,
I Am by birth a free Commoner of England, and am thereby intailed or intituled unto an equall priviledge with your self, or the greatest men in England, unto the freedome and liberty of the Lawes of England, as the Parliament declares in their Declaration of the 23. of October, 1642. 1 part book Decl. pag. 660. And the 29. Chap. of Magna Charta expresly saith, ‘That no man shall be taken or imprisoned, or be disseised of his Freehold or Liberties, or free customes, or be outlawed or exiled, or any other wayes destroyed, nor past upon nor condemned, but by the lawfull Iudgement of his Peers (or Equalls) and that by due course, or processe of the Law of the Land†, which expresly saith, that no man shall he taken or restrained of his libertie, by petition or suggestion (made unto whomsoever in authority) unlesse is be by indictment or presentment of good and lawfull men where such deeds be done: and that no man whatsoever be put to answer (any crime whatsoever) without presentment before Iustices or matter of record, or by due processe and wrsit originall according to the old law of the land, and if anything from henceforth be done to the contrary it shall be void in law, and holden for* error.
Therefore Sir, for you who are a Generall of an Armie, and other of your Marshall Officers who are are no Civill Court of Iustice, nor authorized with the least legall power in the world to administer Iustice, and execute the law of the land, upon, or unto any of the Commoners of England, to dare or presume to restraine, imprison, trie or meddle with me as you have done, who am in no other capacitie in the world but barely and altogether as a Commoner of England, in the height of arbitrary tyranny, injustice and oppression, and an absolute destruction of the very fundamentall Lawes of England,* the bare endeavouring of which cost the Earl of Strafford his head. And what the doome of him is that destroyes the fundamentall Lawes of the Land, I shall give you out of the very words of your own friend Mr. St. Iohn, in his Argument of law concerning the Bill of Attainder of high Treason of Thomas Earl of Strafford, at a conference in a Committee of both Houses of Parliament printed by G.M. for John Bartlet at the signe of the gilt Cup neer St. Austins Gate in Pauls Church Yard. 1641, who in the 70. page thereof saith, That the destruction of the Lawes dissolves the arteries and ligaments that hold the body together he that takes away the Laws, takes not away the allegiance of one Subiect alone, but of the whole Kingdome it was (saith he) made treason by the Statute of the 13. Eliz. for her time, to affirme, that the Lawes of the Realme doe not bind the descent of the Crowne; no Law, no descent at all: No Laws, (saith he,) no Peerage, no ranks or degrees of men†; the same condition to all. It’s treason to kill a Iudge upon the Bench, this kills not the Iudge, but the Iudgement. And in page 71. he saith, Its felony to imbezell any of the Iudiciall Records of the Kingdome; this, (viz. the destruction of the law,) sweeps all away, and from all.
Its treason to counterfeit, a twenty shilling piece, here is a counterfeiting of the Law, we can call neither the counterfeit, not the true coyne our own.
Its treason to counterfeit the great Seale for an Acre of Land, no property hereby (viz. the destruction of the Law) is left to any Land at all: nothing treason now, either against King or Kingdom no law to punish it.
And therefore advise you as a friend to take heed that you goe no further on in your illegall, arbitrary, tyrannicall and law-destroying practises with and towards me, least when for your own lives you claime the benefit of the Law, you be answered in the words of your foresaid friend in pag. 72. “That he in vaine calls for the help of the Law, that walkes contrary unto Law, and from the Law of like for like; (he that would not have others to have law, why should he have any himself? why should not that be done to him, that himself would have done to another it is true, (saith he Ibid.) we give law to Hares and Deers because they be beasts of chase, but it was never accounted either crueltie or foule play to knock Foxes and Wolves on the head, as they can be found, because these be Beasts of Prey; the Warrener set, traps for Pooulcats and other vermin for preservation of the Warren.
And in pag. 76. he saith, in the 11. R. 2. Tresilian, And some other attainted of treason for delivering opinions in the subversion of the Law, and some other for plotting the like*.
But if you shall object, that you deale with me as you are a Generall and Officers of an Army by Marshall Law, for endeavouring to make mutinies or tumults in your Armie, or by blasting and defaming your reputations, and so drawing your Soldiers from their affection and obedience unto you.
I answer in the first place, there can in this Kingdome be no pretence for Martiall Law, but when the Kingdome is in a generall hurly burly and uproare, and an Armie or Armies of soldiers and enemies in the Field, prosecuting with the sword the destruction of the whole, and thereby stopping the regular and legall proceedings of the Courts of Iustice from punishing offenders and transgressors.
But now there being no Armie nor Armies of declared enemies in the field, nor no Garrisons in the possessions of any such men, nor no generall hurly-burlies and uproars by any such men in the Kingdome, but all such as are visibly subdued and quieted, and all Courts of justice open and free to punish offenders and transgressors; and therefore even to the Armie itselfe and the Officers and Soldiers therein, there is no reason or ground for exercising of Martiall Law, much lesse over Commoners that are not under the obedience of the Army, which is my case.
And that in time of peace, there neither is, nor can be any ground of exercising and executing of Martiall Law; I prove out of the Petition of Right, which was made in the third yeare of the present King, and is printed in Pultons Collection of the Statutes at large, fol. 1431, 1432.* which expresly saith, that by authority of Parliament, in the 25. year of the Reign of King Edward the 3. it is declared and enacted, “That no man shall be forejudged of life or limb against the forme of the great Charter and the law of the land, and by the said great Charter, and other the lawes and Statutes of this Realme, no man ought to be adiudged to death, but by the law established in this Realm†.
“And whereas no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the lawes and Statutes of this your Realme: Neverthelesse of late divers Commissions under your Maiesties great Seale have issued forth, by which certaine persons have been assigned and appointed Commissioners, with power and authority to proceed within the land, according to the iustice of MARTIALL LAW, against such Soldiers and Marriners, or other dissolute persons ioyning with them, as should commit any MVRDER, ROBBERIE, FELONIE, MVTINIE, or OTHER outrage or misdemeanor whatsoever, and by such summarie course and order, as is agreeable to Martiall Law, and as is used in Armies in time of Warre, to proceed to the tryall and condemnation of such offendors, and them to cause to be executed and put to death according to the Law Martial. By pretixt wherof your Maiesties Subiects have bin by some of the said Commissioners put to death, when and where, if by the lawes and Statutes of the land they had deserved death, by the same lawes and Statutes also they might, and by no OTHER ought to have been been iudged and executed†. And also sundry grievous offendors, by colour thereof claiming an exemption, have escaped the punishment due to them by the lawes and Statutes of this your Realm, by reason that divers of your Officers and Ministers of Justice have uniustly refused, or forborn to proceed against such offenders, according to the same laws and statutes, upon pretence that the said offendors were punishable only by Martiall Law, and by authority of such Commissioners as aforesaid. Which Commissions AND ALL ORDER OF LIKE NATURE, are wholly and directly contrary to the said lawes and Statutes of this your Realm.
Therefore Sirs, if you have any care of your own heads and lives, (though you have none of the Liberties and Freedomes of England) I againe as a friend advise you, to take heed what you doe unto me any further in your illegall, arbitrary, and tyrannicall way that hitherto you have proceeded with me; for I largely understand that Canterbury and Strafford were this Parliament questioned for their arbitrary and tyrannicall actions that they did and acted many years before, and the Lord Keeper Finch was by this Parliament questioned for actions that he did when he was Speaker of the House of Commons in the third of the present King, An. 1628. and forced to flie to save his head.
In the second place I answer, that if since the warres ended, it was or could be judged lawfull for your Excellencie and your Councell of Warre, to execute Marshall Law: yet you have divested your self of that power upon the 4. and 5. of June last, at Newmarket Heath, you owned the Souldiers and joyned with them, when they were put out of the States protection, and declared enemies, and further associated with them by a mutuall solemn ingagement, as they were a Company of free Commoners of England to stand with them according to the Law of Nature and Nations*, to recover your own and all the peoples Rights and Liberties, the words are these; We the Officers and Soldiers of the Army subscribing hereunto, doe hereby declare, agree and promise to and with each other, that we shall not willingly disband nor divide, nor suffer our selves to be disbandad nor divided untill we have security; that we as private men, or other the free borne people of England, shall not remain subiect to the like oppression, injury, or abuse as have been attempted.†
Hereby it appeares, that from this time you and the Souldiery kept in a body, and so were an Army, not by the States or Parliaments will, but by a mutuall Agreement amongst all the soldiers, and consequently not being an Armie by the Parliaments wills, they were not under those rules of Martiall Government which were given by the will of the Parliament and your Excellency could no longer exercise any such power over them, as was allowed you by those Martiall Lawes; nay, the Soldiers keeping in a body, and continuing an Army, only by mutuall consent, did by their mutuall Agreement or Ingagement, constitute a new kind of Councell, whereby they would be governed in their prosecution of those ends for which they associated, and made every Officer incapable of being in that Councell, which did not associate with them in that Ingagement. The words of the Agreement or Ingagement are these: “we doe hereby declare, agree, and promise, to and with each other, that we shall not willingly disband, nor divide, nor suffer ourselves to be disbanded or divided without satisfaction in relation to our grievances and desires heretofore presented, and securitie that we as private men or other the free-born people of England, shall not remain subject to the like oppression and injury as hath been attempted, and this satisfaction and security to be such as shall be, agreed unto by a councell to consist of those generall Officers of the Army, who have concurred with the Armie in the premises, with two Commission Officers, and TWO SOVLDIERS to be chosen for each Regiment, who have concurred, and shall concurre with us in the premises and is this Agreement.
So that your Excellency is so farre from having a power to exercise the old Martiall Discipline; that you would have been no Officer or Member of the Councell appointed to governe them, unlesse you had associated with them, and by that Association or mutuall Ingagement, the Soldiers were so far from allowing to their Generall, who ever it should have been (for at that time it was uncertaine) the power of exercising the old Martiall Discipline, that according to the Ingagement no Officer or Soldier can be rightly cashiered unlesse it be by the Councell constituted by that Engagement: so that your Excellency by your owne Engagement have put a period to your power of exercising your old Martiall Discipline, and whatsoever Discipline shall appear to the Army to be necessary, must be constituted by the mutuall consent of the Army, or their representatives, unlesse you and they will disclaim the Engagement at New market, and those principles upon which you then stood, *and yeeld up your selves to the Parliaments pleasure as their hirelings to serve their arbitrary power, like Turkish Janisaries.
In the third place I answer, that it is against reason, law, conscience, justice and equity, to subject me at one and the same time, or any other free Commoner of England, under the sting and power of two distinct Lawes, and such a bondage as is insupportable, and such a snare of intanglement, that no mans life whatsoever can be safe or secure under it, that I shall be liable to be questioned and destroyed by the common Law of the Kingdome, and then be at the wills of mercenarie Turkish Ianisaries (in case the common Law will not reach me) to be questioned and destroyed by an unjust arbitrary Martiall law; and if it can be justly proved against me that I have made any tumults, the Law and the ordinarie Courts of justice are open, by which and by no other rules and proceedings J ought to be tryed, and if it be said or can be proved, that I have belied or scandalized the Generall, to the taking away of his good name, &c. yet scandalum Magnatum is not to be tried by Martiall Law, nor yet either by the House of Commons, or the House of Lords, but only & alone (now the Star-Chamber is down) by an Action at comon Law†, by a Jurie of my equals, & no where else, it being a Maxime in Law, That wher remedy may be bad by an ordinary course in law, the party grieved shall never have his recourse to extraordinaries*: And besides for you to proceed with me, and to be both Parties, Jury and Iudges, is a thing that the Law abhorres†.
In the fourth and last place I answer, that the Parliament it selfe, neither by Act nor Ordinance can justly or warrantably destroy the fundamentall liberties and principles of the common Law of England,* it being a maxime in law and reason both, That all such Acts and Ordinances are ipso facto null and void in law, and bind not at all, but ought to be resisted and stood against to the death.
But for them to give you a power by Marshal Law, or under any other name or title whatever, by your arbitrary tyrannicall wills without due course and processe of Law, to take away the Life or Liberty of me, or any free Commoner of England whatsoever, yea, or any of your own Soaldiers in time of peace, when the Courts of Iustice are all open, and no visible declared enemie in Armes in the Kingdome ready to destroy it, is an absolute destroying of our fundamentall Liberties, and a rasing of the foundation of the Common Law of England.†
And therfore such a power of Arbitrary Marshal Law, cannot justly by the Parliament in time of peace, &c. be given unto you, (nor if it were) be justly or warantably executed by you.
And besides, both houses themselves by an Ordinance (unlesse they alter the whole constitution of this Kingdome) can take away the life of no free Commoner of England whatsoever, especially in time of peace.
And therefore that which is not within their owne power to do, they cannot by an Order or Ordinance grant power to Sir Thomas Fairfax &c. to do, it being a Maxime in nature, That beyond the power of being there is nor can be no being.
But it is in the power of the Parliament, or the two Houses, or the House of Commons themselves, as the present constitutions of this Kingdome stands, either by Order or Ordinance to take away the life of any free commoner of England.*
And therefore they cannot by an Ordinance or Order, especially in times of peace, give power to Sir Thomas Fairfax by Marshall Law, (unlesse they totally alter the Constitutions of the Kingdome) to take away the life or lives of any free Commoners of England, (which all Souldiers are as well as others,†) and therefore it is absolute murther in the Generall and the Councell of Warre, now to shoot to death, hang or destroy any Souldier or other Commoner what ever by Marshall Law, for which they may be indicted at the Kings Bench barre.
And therefore J doe the third time as a friend advise you, to cease your illegall, arbitrary, tyrannicall Marshall Law proceedings with me that am no Souldier, and so not under the least pretence of your Marshall Iurisdiction, least in time to come you pay as deare for your arbitrarie illegall proceedings with me as Sir Richard Empson and Mr. Edward Dudley Iustices did, who as Sir Edward Cook declares in his 2. and 4. part of his Institutes, where very officious and ready to execute that illegall Act of Parliament made “in the 11. H. 7. cap. 3. which gave power unto Iustices of Assize, as well as Iustices of the Peace (without any finding or presentment by the verdict of twelve men, being the ancient birthright of the Subject) upon a bare information for the King before them made, to have full power and authority by their discretions to heare and determine all Offences or contempts committed or done by any person, or persons against the form, ordinance, effect of any Statute made and not repealed, &c. by colour of which Act of Parliament, shaking (saith he) this fundamentall law (viz. the 29. Chapter of Magna Charta) it is not credible what horrible oppressions and exactions, to the undoing of infinite numbers of people, were committed by them, for which (though I cannot read they shot any man to death, and though they had an expresse Act of Parliament to beare them out, abundantly lesse questionable then an Ordinance for exercising Marshal Law) “they were both indicted of high treason both by the Common Law and Act of Parliament, and in the 2. yeare of Henry 8. they both lost their heads
Therefore from all the premises by way of conclusion, I draw up this protestation against you, that by the lawes and constitutions of this Kingdome, you have not the least Iudicative power in the world over me; therefore I cannot in the least give you any Honour, Reverence, or Respect, either in word, action, or gesture: and if you by force and compulsion compell me againe to come before you, I must and will by Gods assistance keep on my hat, and look upon you as acompany of Murderers, Robbers, and Theives, and doe the best I can to raise the Hue and Cry of the Kingdome against you, as a company of such lawlesse persons, and therefore if there be any Honour, Honesty, and Conscience in you, I require you as a free borne Englishman, to doe me justice and right, by a formall dismissing of me, and give me just reparation for my moneths unjust imprisonment by you, and for that losse of credit I have sustained thereby, that so things may goe no further; or else you will compell and necessitate me to study all wayes and means in the world to procure satisfaction from you, and if you have any thing to lay to my Charge, J am as an English man ready to answer you at the common Law of England, and in the meane time J shall subscribe my self
Your servant in your faithfull discharge
of your duty to your Masters
(the Commons of England) that pay you your wages,
From my arbitrary and most
illegall imprisonment in Windsore,
this 14. Decem. 1647.
To his Excellency Sir Thomas Fairfax Knight, Captaine. Generall of the Forces in the Nation for Importiall Justice and Libertie, these present.*
May it please your Excellency,
I Here present unto you a Declaration and Protestation against the illegall and unjust proceedings of your Councell of Warre against me, (I being a free Commoner of England) as in the presence of the just God, before whose Tribunall both you and I shall stand to give an account of all ungodly deeds committed against him. And so I rest,
Your Excellencies servant, if you are a true
servant to the most excellent God for justice
and righteousnesse in the earth, without respect of persons.
Decemb. 14. 1647.
To the right Honourable his Excellency Sir Thomas Fairfax Knight, Captain Generall of all the forces raised in the Kingdome of England.
The humble Petition of some of your Excellencies Officers and Soldiers being under the custodie of the Marshall Generall.
THat whereas there are misrepresentations of the intentions of the late Agents of the Army and their adherents, by men of corrupt minds, who would make all the end of your own and your Armies noble and valiant Atchievements (under the power of God) fruitlesse, and would destroy justice and righteousnesse from amongst men; and in stead of common good, and equal distribution of justice, would advance a particular selfish interest: & to accomplish their unworthy selfish ends, amongst many other scandals cast upon the late Agents, they have blazed abroad that they intended to murther the King, and that one of them should affirm it was lawfull: And whereas this was reported by one Lievt. Col. Henry Lilburne; it being altogether most abominable in our eyes, and detracts from the purity and righteousnesse of our Principles; tending only to make us odious to the people, for whose good alone we have run not only all former, but also those late hazzards.
We therefore desire that the said Lievt. Col. Henry Lilburne may be speedily sent for to testifie upon Oath (as in the presence of God) who used those words, where those words were used, and when: and what in particular the words were; That so, such a person may come under a publique cognizance, and your Excellencies faithfull servants and souldiers may free themselves and others from such aspertions.
And your Petitioners shall ever pray, &c.
Will. Thompson Commoner.
The forementioned plea of Iohn Crosseman, which with his own hands he delivered to the Generall himself, thus foloweth.
May it please your Excellency.
I Was convened the 16. December last before certaine of your Officers, that pretendedly called themselves a Court Marshall, who attempted to try me by Marshall Law, for certaine pretended crimes, specified in a paper by way of Articles, exhibited by a namelesse prosecuter, 20. dayes after I was a prisoner, only the said Articles were signed by Henry Whaley who calls himself Iudge Advocate. And the same day and time unto the said Officers I delivered in a paper under my hand intituled, Iohn Grosseman his Plea, against the proceedings of the Generall Officers, to punish him by Marshall Law. And after much debate by the said Officers upon the said Plea, the said Officers seemed to be unsatisfied with it, and therefore gave me time till this present Munday, the 20. day Decemb. 1647. to consider with my self, whether J would stand unto the said plea, or give in any other answer.
Having thereupon largely considered with my self upon the ends of our late taking up Armes, I can in my own conscience judge them to be no other, but for the destruction of all arbitrary, tyrannicall power in whomsoever, the preservation of our Lawes and Liberties, and the punishment of all those that have endeavoured the destruction of them. And having since the delivery of the said plea read the Petition of Right, from end, to end; And William Thompsons plea, delivered to your Excellency, &c. upon the 14. Decemb. 1647. now in print, intituled Englands Freedome, Souldiers Rights,† upon the deep and weighty consideration of all which, J am compelled, out of the sense of avoyding the being too justly esteemed by all understanding, rationall men, a traytor, and subverter of the Lawes and liberties of England, to stand unto my said Plea, without any further answer then this.
That the government of the Army by Law Marshall, is only necessary when the Kingdome is invaded by a forraign enemie, or in a generall hurly burly in it self, being ready to march against a declared professed enemie ready to destroy it with fire and Sword, and thereby shut up the legall administration of iustice upon Transgressors and Offenders in the ordinary course thereof.
But now there is no forraigne enemie upon the march against England, nor no generall Hurly Burly in the Kingdome by professed and declared enemies against the peace thereof ready to destroy it with fire and sword, but all at the present is visibly in peace and quietnesse, and the Courts of iustice all open to punish all manner of offenders whatsoever, (yea Souldiers in Armes that have taken the States pay*) who only in times of peace (as this is) are solely to be punished by the rules and proceedings of the known and declared law of England, and by no other rules whatsoever.
And therefore it being now time of peace, there is no need of Marshall Law, neither can your Excellency, nor any other under you upon any pretence whatsoever, derived from any power whatever, execute it upon paine of being esteemed and iustly iudged to be absolute executers of an Arbitrary and tyrannicall power, and grand destroyers of our Lawes and liberties, and so in time may receive the Earle of Straffords doome, one of whose principall crimes I understand was, That he in Ireland, in time of peace (when he was Generall of an Army on foot) shed the blood of Warre, by executing a Souldier by Marshall Law, when the Courts of iustice were open.
And therefore I doe absolutely protest against the name and power of your pretended Court Marshall. And doe further declare, that I iudge my self bound in conscience with all my might power, and strength, both by words, actions, and gestures, now I know so much as I doe, to oppose, as the case now stands, all Marshall Courts whatsoever, and to judge my self a Traytor to the lawes and liberties of England, if I should doe any action that might but seeme to support, or countenance that law and liberty destroying power of Marshall Law, and can neither esteem nor iudg him an honest, iust, & troubled English man, that now hereafter (so much in print being declared against it) either executes it, or stoops unto it, So with my humble service rendred to your Excellency, I commmend you to the tuition of the just and powerfull God, and rest,
From my uniust captivity and imprisonment in
Windsore, which is both against the
Law of England, and our Agreement at
New Market, (the 4. and 5. Iune last)
this 20. of Decemb. 1647.
Your honours faithfull servant
and Souldier to the death, so
you turn not the mouth of your
own Cannons against me to destroy me.
The forementioned Letter or Plea of Captain John Ingram, thus followeth.
May it please your Excellency,
I Was condemned the 20. Decemb. 1647. by divers Officers assembled together in the manner of a Court Marshall, for speaking before them my own Conscience and judgement with sobernesse, about Maior Cobits businesse. Now in justification of my self, I must declare unto your Excellencie, that in all Councells whatsoever, the members thereof ought without check, controule, molestation, or feare of ruine and destruction, freely to speak and declare the dictates of their iudgement and consciences. And undoubtedly the denyall thereof, would render all Councells whatsoever, uselesse and vaine. And its no lesse then the hight of tyranny in any prevailing partie in a Councell to usurp such a power, as by terrors, censures, or force, to stop the mouths of those who are of different opinions, and against whose arguments or saying they offer no reasons.
And its no Iesse against law, and justice, yea, the common light of nature, for the members of that Councell (who were the only offended parties, to assume to themselves to be prosecutors, witnesses, Iury and Judges, as they did in my case.
And therefore I am resolved in the strength of God, never to betray my innocencie, by acknowledging an offence according as the censure, of my accusers require, when my conscience beares me witnesse, that as in the sight of God I did my duty, so I doe freely declare, that I am still clearely satisfied. That since our association by mutuall Ingagement at New-Market to stand as free Commons of England, for common right and freedome. And since our constituting a new Councell to be our directer in the manner of prosecuting those publique ends of justice, right and freedome, there is no assembly, but that new constituted Councell only which is a competent Iudge of the Actions of any Member in the Armie, and in his prosecution of the ends aforesaid. And of this nature I conceive was Maior Cobits case.†
And I must further declare, that I am not only willing, but I account it my honour to be under your Excellencies conduct, so long as you shall act according to the first principles manifested in the Commission I received from your Excellency, according to the publique declaration of the Souldiery upon Triplo Heath, for Iustice, Iustice. And according to the Solemn Ingagement, neither shall any man be more obedient to your, Excellencies commands, tending to those ends, then my self.
But I must declare, that I clearely apprehend the highest injustice of executing Marshal Laws in time of peace, those lawes are appointed for cases of necessity and extremitie, when the Armie is marching against an enemie, and its then only justifiable, either because other Courts of justice are not open, or there cannot be a timely prosecution of offenders in those Courts. But when all other Courts of justice are open, and no enemie in the field to obstruct a free accesse to them, and when every Souldier is punishable in those Courts, and by the known lawes of the land for any crime or offence; I conceive common justice dictates Marshall Lawes to be null otherwise two Courts not subordinate each to other, claiming the iurisdiction over a Souldier supposedly offending, when the Known Lawes shall have acquitted him, he may suffer by the will of a Court Marshall. And therefore the Petition of Right complained of executing such Marshall Lawes in time of peace. Which Petition being granted, it remaineth as a valid Act of Parliament against it. And the Earle of Strafford was impeached of High Treason for proceeding against and condemning the Lord Mount Norris by Marshall Law,† though the sentence was not executed.
Upon all these considerations, I cannot but be confident that the justice and conscience which dwels in your Excellencie, will compell you to restraine the proceedings of that Assembly of Officers against me, who are my accusers. And I hope your Excellencie is so carefull of your honour and reputation in the peoples eyes, that you will not suffer my place to be taken from me, unlesse my declining from the ends for which I associated with the Armie can be proved against me, or else some crime which according to law and justice merits such a censure. And I am not yet conscious to my self of the least unfaithfullnesse, but doe remaine as ever,
Your Excellencies humble servant Iohn Ingram, whom
since they have cashiered because he was too honest and quick
sighted for them, and whom I heare hath a larger discourse
comming out against their unjust proceedings with him.
The proceedings of the Grandees at Windsore being so furious, unjust, and illegall as they were, in which they led the Generall on hoodwink as their stalking Horse, to the pits brink of his own ruine and destruction, and to the Apparent hazzard of shedding more innocent and precious blood, of extraordinary choice English men, and sweet Christians, and to the visible rooting up by the roots of the fundamentall lawes and liberties of England, and in its place set up and executed an arbitrary, tyrannicall government of Marshall Law: by the rules and justice of which, they might have as well, as justifiably, and as warrantably condemned to death all the free men of England, as those Souldiers they did. The serious meditating upon all which, perplexed my very spirit, and therefore I drew out my pen to make an assay upon the Generall, thereby if it were possible to stop those most desperate and unjust proceedings. The substance of which Letter thus followeth.
May it please your Excellency,
HAving heard that your Excellency should say there was a great deale of reason in your apprehension in Thompsons plea, And you wished the Officers would well weigh it, and returne an answer to It.
And being yesterday at the House of Commons doore, I met with divers of your Officers, and in particular with Quarter Master Generall Ireton, who in his discourse with me, was pleased to say, That the late Plea for the Agents was full of falsehoods and mistakes, and my self in discourse came close to him before many people, and proferred him to maintaine before any competent Iudges in England, upon the perill of a sufficient disgrace to prove by the genuine sense of your own Declarations, and the Lawes of England, that there was not a false nor mistaken sentence in it all.
Now may it please your Honour, having many Obligations, upon me to your particular selfe, not only as I am an English man, but also as a sufferer. And being much perplexed in my own spirit at those many late unworthy actions that are done, pretendedly by vertue of your Authority, by men of a powerfull and corrupt influence in your Armie, the disgrace and danger of which lyes very deep upon your selfe, which I am afraid in conclusion will cost you very deare, yea, the head upon your shoulders, if you persevere or suffer them to persevere in their late murthering, arbitrary, tyrannicall, illegall wayes; and therefore out of that reall and strong affection, that I truly beare unto your Excellency, J am compeld to propose and offer unto your Honour, that if you please under your hand to grant safe comming and going to my self and a friend or two, and indempnitie for our discourse, upon the debate, we will come and waite upon your Excellency at Windsore; And against all your Officers in and belonging to your Army, maintaine the legallity and rationality of every line and sentence of Thompsons Plea, and the Plea for the Agents (the printers faults excepted) your Excellency in your own person at the dispute, sitting as Moderator and Iudge. So with my heartiest and truest service presented to your Honour, I humbly take my leave of your Excellency, and rest.
From my most iliegall and unjust
Captivity, which I am confident
is continued by the powerfull
influence of some great Officers
in your Armie,* this 23.
As true and faithfull a servant to you, as any
you have in your Army, though an absolute
abhorrer and detestor of the late actions of
your pretended Councell of Warre.
I have assigned the prisoners at Windsore to waite upon your Excellency for an answer to this my Letter, and I desire further to let you know, that if your Officers be unwilling to imbrace my desires herein, It will be a cleare demonstration to your Excellency, and all the people of the whole Kingdome, that they have jugled with, deceived and deluded you, and brought you into life and honour destroying snares.
This letter of mine was delivered to the Generals own hands as I have been informed by some that was by, but I have not received the least answer unto it, which makes me conclude, that Cromwell and Ireton, and there under Creatures are convinct in their consciences, that there is not the least shaddow or ground in the world, for them in times of peace to execut Marshall Law, the full knowledge of which, they would not willingly the Generall should be possessed with, as it is probable at such a dispute as before I offer and am ready to performe, he might be, and so might be sorry, for that murder committed upon the Soldier, that was shot at Ware, for which I am sure Cromwell, Ireton, Paul Hobson, yea and my Brother Henry Lilburne (if he were one that had a hand in the causing of him to be shot) as well as all others that had, may by the Law of England be apprehended, indicted, and tryed as wilfull murderers; and I am sure in the eye of the Law of God or England, no plea can save their lives, in any one of whose condition, (in the eye of the Law, to be tyed to live in England) that had a hand in that mans willful murder I would not be for al the gold in England, and let me without contempt, give this advice to the two great forementioned Nimrods of the Army, (whose present power is bent to suppresse our fundamental laws and liberties, and to build up, and establish the highest of Tyranny and protect Tyrants) to turne over a new leafe and turne honest, if they have any graines thereof left within them, and bend not their parts and power, to plead for and protect the present tyrannicall House of Lords in their unjust usurpations, and to destroy me in my unjust imprisonment (which I know is only continued by their power and meanes) for doing my duty to my selfe, country, and posterity, to oppose them therein, least they necessitate and compell me for the preservation of my selfe, wife and children, to finde out a man that shall dare, in the hight of all there unlimited potency, and unbounded greatnesse, to indict them both for murderers, at the Kings bench barre, or elsewhere, and shall dare to indict the judges for perjury &c. if they shall dare to obey any command in England, that shall command them not to doe justice and right in that particular.
And now O unworthy and dishonourable Cromwell, (that I averre and will justifie to thy face) that brought and drew me into my first contest with the Earle of Manchester, and when thou hadest served thy ends of me, viz. to helpe to pull him downe from His Major Generall-ship) left me in the Bryers to be worried, and torne in peeces by him; and now keepest me in Prison (to the apparent hazard of my totall destruction) by thy power and influence, for being true to those principles of reason, truth and iustice, that I will iustifie to thy face, thou wast as high in as my selfe, when thou engaged me against Manchester, the Earle of Essex &c. though now thou art visably and desperately apostatized from them, to thy shame & eternall dishonour be it spoken, but seeeing (as my owne soule tells me) by thy meanes, I cannot get one dram of iustice, at the hands of the House of Commons, upon my complaint aganst the present tyrannicall usurping house of Lords, I here proclame an open defiance to thee as a professed enemy to the fundamentall lawes and liberties of my native country, to doe the worst they can do to me, a man in some sence almost devoured, by the Tyranny of thy fellow grand Tyrants in England, under which I have transendantly suffered this eleven yeares together, and therefore seeing that thou and the rest of thy Tyrannicall confederates in this present house of Lords, and their [Editor: illegible word] Speaker Sr. John, and Nat. Fines, &c. in the house of Commons necessituously compells me to [Editor: illegible word] [Editor: illegible word] straits and extremities as you do [Editor: illegible word] [Editor: illegible word] my own subsistance from me,* & yet according to Law, & the Iust custom of the Tower where I am Prisoner wil not allow me a subsistance according to my quality, out of the publique treasure, or those that most uniustly and illegally commited me, by meanes of which in the eye of reason I am likely shortly to perish, and be destroyed, yet in these great straits, in the might and Strength of God I say to thee O Cromwell, with an undaunted resolution, as the the three children did to that grand Tyrant Nebuchad-nezzar, when he was ready to throw them into the hot fiery furnace, O Cromwell I am not carefull for all thy greatnesse, to tell thee thy owne; and to let thee to know that the God whom I serve, is able to deliver me, from thy power, and greatnesse; But if not, be it known unto thee O Cromwell, that I will not serve thee nor worship or stand in feare of thy tyrannicall power, or that golden or painted Image, the present House of Lords, which in thy Imaginations and fancy thou hast lately set up, that so in time thou mayest be one thy selfe.
Now upon these Pleas and Protestations of the forementioned honest men, comming so thick upon them, with the gallant and heroicall carriage of divers of the other prisoners at Windsore, with the late thunders of Mr. Sidgwick and precious Mr. Saltmarsh, these new Tyrants the Grandees, had such a curb put into their mouth, that it so stopped the furiousnesse of their bloody and murthering Carreare, that they were (as my often Intelligence gives me to understand) confounded and amazed amongst themselves, and therefore set their Imps and underhand pentionary Agents at worke, to perswade the honest Agent Prisoners to close in love and union, with some litle kind of (though it were but seeming) reluctancy of spirit,† and then the Generalls almightinesse (in whom those sicofantising Grandees, place as great an omnipotency as ever the Courtiers or Cavialeers did in the King, the more to serve their wicked and desperate ends for this I dare confidently say, if his Excellency would not let his Creator Cromwell rid him, he should shortly and as scarcely charge him with as impeachment of Treason, and breach of trust, as ever he did the Earle of Manchester, by meanes of which, his Lordship hath of late been very tame and gentle to his greatnesse Lievt. Gen. Cromwell) should pardon all their iniquities, and passe by all their transgressions, and forthwith one of Ahabs fasts is called, that so they may more closely and cowardly smite with the fist of wickednesse, that being too much the apparent end of all their howling lamentations, Which God accounts but nothinge unto him, and without amendment of wayes and doing justice and iudgement, reliving the afflicted and oppressed, and breaking all the heavie yoaks, are odious and abommable in his sight Esay. 18. 4, 5, 6, 7. and Mic ah 5, 6, 7, 8.
And after the first (which was by their Diurnall Mercuries sufficiently blown and sounded over London) to salve up their own reputations and credits, which then was very much blasted, and to preserve their own; offering greatnesse, the tumbling down of which they were afraid of by the great Hatchets the State hath struck at their roots with, in their thundring discourse for the King and his answering of the late 4. bills before they were sent him, both of which were seminall demonstrations, to high and mighty Cromwell and Ireton, that the Scots would outbid them and get away their late admired and dotted upon darling the King from them,† and then spoil all their expected Court greatnesse, in wearing a welsh Gue Gue, the George and a bleue ribbin, with the title of (at least) Earl of Essex, and Lievtenant, or Generall Field Marshall of Ireland, and so perceiving thereby that the interest of the Scots was likely to be joyned with that of the Kings and so Royallisme and Presbytery would shortly swallow up forceable and factious Independency, especially if the interest of the honest Nown-Substantive Levellers (as the King their Quandum good Lord (in his message left at Hampton Court when they sent him to the Isle of Whight) lately christned them, as he had severall times done the Parliament, in his severall Declarations published the beginning of these warrs) should not be indeavoured to be united to them againe, that so now in their necessity and straights, they might once againe make close stooles of them to shit in, and when they had done, to throw them behind the doore (as formerly they had) as unfit to remaine in their fight till they needed them againe.
And therefore to kill two birds with one stone upon their fast they release the prisoners as the mind of God, when without doubt they had resolved it before, as the only expedient to reinbalm their justly lost reputation. And secondly as the only meanes to reimpinioante them into the good thoughts of those men, they and their late royall friends lately christned Levellers, and to add strength unto the last, the two chiefe of the Grandees Cromwell and Ireton, came to the Parliament to heighten them in their votes against the King, because he had forsaken his first love, and would not be content with that price that they would give him, to let them reign and rule under him, the which if he would have taken, no doubt but he might have com’d in to have joyntly with them oppressed and rid the people, but because it may be the Scots scared if he came in by the Grandees of the Army, they and hee might joyn together to chastise them for all their old former provocations given unto both, and therfore out of meer safety (it may be) to themselves outbid the Grandees to gaine the Kings affection, at which they are mad, and therefore to preserve their own greatnesse, and to gaine if it be possible, the lost affections of the honest Nown-Substantive Englishmen, they flie high both against him and the Scots, that so they may if possible induce them to joyne with them in a new war, (which is their interest and trade) without giving or offering unto the people the least valuable consideration for all the blood they have already lost, and are more amply like to loose upon the ingaging in a new warre, yea, or intending them any, which for my part I doe abhorre,† and shall disward, and hinder by all the interest I have in England, not to undertake, unlesse the antient hereditary, just and native right of all Englishmen indiffinently, be particularly and clearly holden out unto them, and secured with strong and good security, that so Englishmen as Englishmen may be united, and then when that is done, my heart blood I will venture against any interest in the world that shall fight against it. For to fight as hitherto we have done, to pull downe own sort of Tyrants to set up another as had if not worse then the former, I think is the greatest madnesse in the world.
Now having at present done with the Grandees of the Army, there being so much truly declared of them in that most notable book called Putney Protects, (the truth of which, the brazen facest of their Champions dare not with his pen deny, no not forsworne Lieutenant Edmond Chillington himself, their choice darling) that it here saves me a labour.
But before I come to touch upon the arbitrary tyrannicall proceedings of the present House of Lords, I shall first insert another piece of injustice (which should have come in before) of the Iudges in Westminster Hall, from whose grose and habituated injustice ariseth the principall miserie of this Nation, from age to age, who immediately before this Parliament, gave away all the estates of all the free men of England at one judgement to the King, for by the same right he by his wil could by his Ship-writs take six pence from us, he may take all we have, and by the same right he takes our estates, he may take all our lives. And if for that judgement they had all been hanged that had a hand in it, as by the practice of this Kingdome, in like or lesser cases, Iudges hath been, these that now survive them would have been wary so visibly to forsweare themselves by doing palpable iniustice as they doe. For the forementioned learned Author Andrew Horne in his merror of justice, pag. 238. devision 108. saith expresly. That it is an abuse, that Iustices and their Officers, who kill people by their false iudgement, be not destroyed as other murderers, which King Alfred caused to be done, who caused 44. Iustices in one year to be hanged as murderers for their false iudgements.
The case that I shall set down, is Mr. Henry Moores, my Quandum fellow prisoner in the Fleet, and the most lamentable and deplorable unjust dealing of the Iudges with him, you may briefly understand by his Petition which thus followeth.
The Humble Petition of Henry Moore Merchant.
That whereas your Petitioner in Hillary Tearm Anno 16. Caroli Regis, after a verdict, obtained a Iudgement in his Maiesties Court of Kings Bench of 7000. l. debt and 7. l. 12. d. dammages against Thomas Wright who afterwards was charged in execution for the same, in the custodie of Sir Iohn Lenthall Knight, then and yet Marshal of the said Court, and the said Wright being so in execution for Composition, offered your Petitioner above 8000. l. and security for the residue of the said debt, all the same appearing to be true by Records and by proceedings in Chancery under the Great Seale of England, but before any part thereof satisfied, the said Sir Iohn Lenthall suffered the said Wright to escape out of Execution.
Your Petitioner therefore in Hillary Terme 17. Caroli Regis. Ten dayes before the end of that Terme, caused an action of debt to be brought for the said 7007. li. 12 d. at your Petitioners suit for the said escape, and then filed a declaration against the said, Sir Iohn Lenthall for the same. But the said Sir Iohn to deprive your petitioner of the said debt, and all remedie for the same, in Trin. 18. Caroli Regis, notwithstanding your Petitioner had severall Rules against Sir Iohn Lenthall for judgement upon his declaration so filed in Hillary 17. He the said Sir Iohn Lenthall procured an Order to be made by Sir Iohn Brampston Knight, and Sir Thomas Mallet Knight in open Court, that your petitioners Declaration filed in Hillary 17. should be filed as of Easter Tearme the 18. contrary to justice, the law of this Kingdom, the libertie of the Subjuct, and the rules of the said Court, as your petitioner is advised. And for that your petitioner being so advised that the said Order doth utterly barre your petitioner of his said debt. Your Petitioner severall times publiquely in Court and otherwise moved the Iudges to alter the same, but could not prevaile, as appeareth by the Order of the said Court, and for that, that notwithstanding your petitioners earnest solicitation for his judgement due by the rules of the said Court for the space of above foure yeares together, and his great expence after 15. Orders made in the said Court, the now Iudges of the said Court, Mr. Iustice Bacon, and Mr. Iustice Roll hath confirmed the same, as appeareth by an Order by them made, per Hillar. 22. Caroli Regis now readie to be shewed.
In tender consideration of the premises, that your petitioner according to the Law filed his declaration in Hillary 17. when the prisoner was escaped and at liberty, and for that the said Iudges Order contrary to Law barreth your petitioner from prosecuting upon that declaration, and bindeth your petitioner to file his declaration as of Easter terme 18. Caroli, when the said Marshall aleadged that he had retaken the said prisoner again and that he was dead, and that your petitioners debt is destroyed by the said Iudges Order, to your petitioners dammage above 10000l. And for that other debts may be destroyed by the like. If men be barr’d from the benefit of their just Records duly fil’d as the petitioner is, contrary to the Lawes of the Kingdome, and the libertie of the Subiect, which appeares to be done (in this Cause) by the Orders themselves.
Your Petitioner humbly craveth releife according to his damages. And your Petitioner shall pray.
Which petition the said Moore delivered to Col. Henry Martin, and divers other Parliament men, but can not so much as get his petition read in† the House, upon whom he hath long attended, and still waiteth, & most earnestly, and deplorably cryeth out to be releived from this intollerable oppression, by which the said Moore is damnified (as in his printed complaints to the House he declares) above ten thousand pound, to the hazzard of his utter ruine.
Now I shal here crave the liberty, to insert the epittomy of my own cruel & barbarous sufferings, with this desire to al that reads it, seriously to consider that what hath befaln me, by the cruell tyrany of by past Tyrants and oppressors, if not strongly remedied and repaired, may for future be incouragement for the present Tyrants to inflict (when they dare for fear of being dismounted) the like if not worse upon the first Nown-Substantive Englishman, that shall resolutely stand in their way.* The summe of what I have here to insert, I shall lay down in the very words that I delivered in print to the Members of the House of Commons at the House doore, the 23. Novemb. last, which thus followeth.
MY exceeding urgent necessities, and my extraordinary sufferings by your neglect in doing me justice and right, according to your many oaths and declarations, presseth me above measure still to play the part of the poore importunate widdow, mentioned in the Gospel, and to resolve whatever befalls and never to give over till I have attained her end, viz. Iustice.
You may please truly to take notice (and the rather because many of you are new Members that in the year 1637. and 1638. I suffered a most barbarous sentence by the Star Chamber, occasioned by two false oaths sworne against me by Edmond Chillington,† now a Lievtenant under Col. Whaly, and by my refusing to answer interrogatories against my self, in executing of which sentence the 18. of April 1638. I was tyed to a Cart-tayle at Fleet bridge, and whipt through the streets to Westminster, and had given me above the number of 500. stripes, with a threefold knotted corded whip, the weeles made in my back thereby being bigger then Tobacco pipes, &c. And set two houres upon the Pillory bare head in an extraordinary hot day, and a gag put into my mouth above an houre, to the almost renting of my jawes in sunder. See my printed relation of my businesse before the Lords bar the 13. Feb. 1645. where all this with much more is proved upon Oath.
And upon that very day, 10. Iudges of the said Star Chamber made an Order to murther and starve me,* the very words of which Order being, that the said Iohn Lilburn shall be laid along with irons on his hands and leggs, in the wards of the Fleet, where the basest and meanest sort of prisoners are used to be put and that the Warden of the Fleet, take especiall care to hinder the resort of any persons what soever unto him, and particularly, that he be not supplyed with money from any friend. And yet they not any for them during all my imprisonment never allowed me the value of one farthing taken to live upon, but executed the said Order upon me with so much barbaritie, that my pining, tormenting condition, was a thousand times worse, and lesse to be indured, then any sudden death whatever, under which without doubt I had perished, had it not been for the timely rellese of this Parliament, by which said sufferings I was rob’d of a profitable trade, in the flower of my dayes.
And being by you set at liberty the first weeke of your sitting, I was by the malice of one Littleton a Courtier, by the Kings especiall command arrested of high Treason, and the 4. May 1641. by the Kings own direction, I received a kind of an Arraignment at the Lords bar, where the said Littleton most falsely swore point blanke against me, to the apparant hazzard of my life and being if he had not been contradicted by the oath of his own friend Mr. Andrewes a Counceller, upon which day and at that very time, the House of Commons were so sencible of my sad and suffering condition, that they were pleased upon the report of Mr Francis Rouse to make these Votes for me.
Resolved upon the question, That the sentence of the Star Chamber given against Iohn Lilburne, is illegall and against the liberty of the Subiect, and also bloody, wicked, cruell, barbarous, and tyrannicall.
Resolved upon the question, that reparations ought to be given to Mr Lilburne, for his imprisonment, sufferings and losses sustained by that illegall sentence.
And yet I never had to this houre one penny of reparations, although J dare safely say it, I have spent above a thousand pound one way and another in following you therefore, above the space of seaven yeares, which is alonger time, for any thing, I can read of in Scripture, then ever the importunate widow followed the unrighteous Iudge (that neither feared God nor reverenced man) and yet obtained justice at his hands.
That upon my deliverance, by the assistance of one of my friends, I betook my self to a trade for my livelyhood, and of my own and my foresaid friend, stockt it with almost 1500. l. ready money, and the late wars comming on, at the desires of many eminent men of this Kingdome my then choice friends, I left my trade, and in iudgement and conscience girded my sword unto my thigh, with an honest resolution to spend my heart blood for the preservation of the lawes and liberties of my native country, which then the Parliament by their Declarations, made me and the Kingdome believe was endeavoured to be destroyed by the King and his evill Councell. And having like a man of undaunted resolution adventured my life at Edgehill and Brainford, with good and advantagious successes to the Parliament, though with ill to my self, being to a good value plundered at both places, and at the last taken prisoner, where by the inhumaine barbaritie of severall Lords and others, I was divers times in danger after quarter given (before I came at Oxford) to be hung in pieces, being pinioned with my armes behind me, and tyed to another, and forced on foot through all the dirt and mire to march two dayes together. And being arrived a prisoner at Oxford Castle, J was visited by foure Lords, (viz. the Lord Newarke, now Marquesse of Dorchester the Lord Dunsmore, now Earle of Chichester, the Lord Mattravers now Earle of Arundell, and the Lord Andiver) as messengers from the King (as they told me) and in his name proferred whatever in reason I could desire, in his then prosperous condition, so J would forsake the Parliament, and my present principles, and desire his pardon which they all unanimously promised to get for me, but I told their Lordships they were mistaken in me if they thought I was to be courted out of my principles, and as for his Maiesties pardon I told them I scorned either the craving or accepting of it, having in obedience to the Parliaments then commands done nothing but what I did then believe was just and legall, and for which I would willingly lay my life down, and the desiring or accepting of a pardon would argue guiltinesse, which I told them I believed I had no need to confesse. Whereupon I was clapt in irons night and day, forcd to lye in my cloaths upon the flore, lockt up close in a Chamber, when I had not a penny of money about me, being lately plundered of all I had, and a centry set at my doore, that I could not speak with any of my fellow prisoners, to borrow a penny to buy me bread, by meanes of which I was exposed to the greatest of straights, and immediately in irons arraigned as a Traytor, before Sir Robert Heath, and Sir Thomas Gardner, &c. for levying war against the King, by authoritie from the Parliament, and I pleaded to my indictment, telling the Iudge, I girded my sword unto my thigh in judgement and conscience, by vertue of the greatest authority in the land, with a resolution to speed the last drop of my blood, for the preservation of the just lawes and liberties of my native country, being seduced thereunto by no flesh alive, acting not by an implicite faith, but upon principles of iudgement and understanding, in the defence whereof I told him I was then as ready to dye by a halter, as before I had been either by a Bullet or a Sword, and having escaped that danger of hanging by a letter of the Speakers of this House, threatning unto them, Lex taliones, As you may read in the first part book Decl. 802. 803.
I contracted there, by hard usage, a desperate and dangerous sicknesse, of which I lay speechlesse divers dayes, the inhumanity of the barbarous Marshall Smith, being such toward me, that he would neither suffer Phisitian, Apothecary, Surgion, nor Nurse to come neare me, and though some Gentlemen then in bonds with me, got a poore half starved Prisoner to looke to me, yet he was clapt up twice close Prisoner for helping me in those great straights, and I could not freely inioy his helpe, till I purchased it for money at the hands of one of Smiths cruell tormentors.
By which imprisonment (besides my large expences there) I lost at London in debets, &c. (my Debtors taking the advantage of my araignment for treason, would as they said pay us Traytors debts) about 600. l. every penny of which lay upon mine own particular shoulders. And comming out with the same Principles I went in, I be took my selfe to my sword againe, having refused here at London; divers places of ease profit & honour & with much resolution & integritie, in the midest of many discouragements, I fought under the Earle of Manchesters command so long, tell (by his and others visible apostatising from the first declared ends, and by the wickednesse, treachery basesse, and perfidiousnesse J found there) I had lost all my principles, and could not for all the world any longer kill Caveleeres, in whose service I was plundered the third time at Newarke, to the value almost of 100 l. besides many scores of pounds of my owne mony in that service I spent, more then ever there I received, there being due unto me at this day, for my arreares there, the greatest part of a thousand pounds, as I doubt not upon just and true grounds clearely when you please to make appear.
That at the laying down my command* J rigorously, with all the interest J had in England betook my selfe to an earnest prosecution to obtaine at the hands of your house, my iust and long expected and promised reparations from my cruell Star-Chamber Iudges, (one of which viz. old Sir Henry Vaine sits in your House at this day) in the following of which I met with such hard and unreasonable measure (not only from the hands of your house it self,* but also from its Committees, in being causlesly tossed and tumbled out of the hands of one Messenger to another, and from one Goale to an other) that it made me almost as weary of the Land of my nativity as ever the Israelites were of Aegipt when the cruell Tyrant Pharoah made them to make bricks without straw, especially when I considered that all this was done unto me by those for the saving alive, and preserving of whom, J had so often, freely, and resolutely, with my sword in my hand adventured my life, and in the dayes of their greatest straights and calamities been as faithfull to them, as ever Jonathan was to David, when he hazzarded ruine and distruction from his father for siding with him. Yea, and if it had then been in my power, could have done a thousand times more then I did, verily believing they would have performed their just Declarations to the Kingdome. But before the storm of your indignation was well blown over the fearcenesse of which had almost overwhelmed me, behold such a furious tempest the 10. of Iuly 1646. ariseth against me by the House of Lords, as if it would have blown me into an other Horzian, or have Metamorphased me into the shape and habit of a bruit beast, and have robbed me of all things that might give me the denomination of a man, LEVELLING thereby the Liberties and freedomes of all the Commons of England, unto their arbitrary, Lordly wills. And having about 18. moneths ago fled unto you (as justly I might) for shelter, protection, and justice against them, which by my severall Pleas before your Committees I have proved you ought long since to have afforded me; and having the 11. of this instant in halfe a sheete of Paper, presented (here at your doore, as now I doe to your hands) an abstract of the Lords tyrannicall; illegall dealing with me. And of all by way of Plea, I have for my selfe to say; with a desire to stand or fall under your Judgement there upon, which yet J cannot obtaine from you, and therefore referring you to that Abstract, and to my Grand Plea before Mr. Maynard upon the 20. October last, and my Additionall Plea annexed unto it, for all the particulars I crave and challenge at your hands as my right and due. I adjure you before Heaven and Earth, and before the Lord Yehovah, and his mighty and glorious Angells, without any more delay, to adjudge my cause betwixt the Lords and me, either to my justification or condemnation; and to doe me Justice and right by helping me to my owne, kept from me by you, and doe not by your 7. yeares delay of justice, lay more provocations upon me, then my strength and ability is able to beare, and then go about to distroy me, for my crying out of your oppression; when in the eye of reason I have no other remedie left me in this world but that, or to distroy my selfe, wife and Children, which even nature it self abhores or else to live upon the kindnesses of those, that in future time to my reproach shall (as some from whom I should little have expected it have lately done) hit me in the teeth with it, which makes the proffer of their courtesies a scorn unto me, and the thoughts of not being able to repay them againe; a burthen to my spirit. And therfore to conclude, let me in the bitternesse of my spirit, say unto you as the unrighteous Judge said unto himselfe, although by your actings towards me, you declare that you neither feare God, nor, reverence him, yet for my necessitie and pressing importunities sake, now at last to doe justice and right; for if I must dye by yours, and the Lords murthering oppression, I am resolved if I can helpe it, I will not dye alone, nor in a corner in silence. Therefore helpe me unto my owne, to leave subsistance unto my Wife and Children, that they may not beg their bread when I am dead and gone. And if nothing but my blood will serve my cruell adversaries, if they be men, I challenge the stoutest of them in England, hand to hand, with his sword in his hand like a man, to put a period to my dayes, being ready to answer any man in England, Lord or Commoner, that hath any thing to lay to my charge: Either.
First as a nationall man: Or,
Secondly, as a resolved man; Or,
Thirdly, as an English man.
In the last of which I shall desire no more favour then every Trayter, Rogue, or Murtherer, that is arraigned for his life at Newgate Sessions injoyes, viz. the benefit of the declared known law of England. And so at present I rest.
From my most illegall, starving,
and murthering tyrannical, imprisonment in
the Tower of London, this 23 Novem.
1647. going into the eight yeare of my
fruitlesse expecting justice from the deafe
and hard hearted house of Commons.
Your oppressed friend,
that loudly cryes out to you for iustice and
Be pleased to take notice, that divers hundreds of this halfe sheete of paper I delivered the day of the date of it to the Parliament mens own hands at their doore, and the Soldiers, and the by Standers, and while I was delivering them at there doore out came Mr Iohn Ashe the clothier to me, (a man that hath fingered about ten thousands pounds for his pretended losses of the States mony, besides what he hath got as Chair man to the Committe for composition at Gold Smiths Hall, which if common fame he not a lyar, hath been largely profitable to him, as well as other of the like places are said to be to others of his bespoted bretheren) and told me to this effect, that he had formerly honoured me for my great sufferings, but I had of late Ioyned with David Ienkins to destroy this Parliament, which he was pleased to say was the bases and foundation of the peace, and being of this distressed Commons wealth, for which I very well deserved to be executed, as he said; unto which, with a good resolution I replyed: (having my back against their house doore.) to this purpose: Sir, I scorne your words and charge, of joyning with Iudge Ienkins, or any other whatsoever, either to destroy the Parliament, or the Common wealth, for I am the same man in principles, that ever I was, and as true to mine, as Iudge Ienkins is to his, though you, and the most of the Members of your Home, be changed from yours, & Sir I tel you, that before ever I see Judg Jenkins face, I had law enough to deale with twenty such as you are, though I confesse I have lost nothing in that particular, by my acquaintance with him, but have gained, much by my imprisonment with him, in the knowledge of the Law, but Sir, I retort your owne words, back upon you, and averre that it is you, and such as you are, by that palpable injustice, that so acted by you, that will not only destroy this House, but hazzard the totall distruction of the whole Kingdome, for I my selfe have waited upon you seaven yeares for Iustice, to my large expence, but yet cannot obtain one dram of right, from your hands, although you can finde time enough to shaire the Common, wealths money amongst your selves, by thousands and ten thousands, & whereas you say, that I deserve to be executed, I would have you to know, I scorne your courtesie or mercy, and desire you from me to tell your house, that I am ready to answer the whole house or any particular Member in it according to the Law of the Kingdome, at any barre of Iustice in England, when and where they please, without craving or desiring the least drame of favour or Courtisie at their hands, and here upon the Gentleman went away as though he had had a flee in his Eare.
And by and by came out of the House an ancient man (as I was told, called Mr. Jenner) and he rufly demanded where the man was that delivered those bookes, one of which he had in his hand, and I having my back fast against their doore, and looking him full in the face, told him after this manner, that I was he, that not only delivered them, but also made them, and would justifie them to the death; saith he can you expect any good at our hands to give as such language as at the conclusion of it you doe? unto which I replyed; Sir, I wish you had not given me too much cause, by your delaying to doe me justice, and right, and tossing and tumbling as you have done from one Goale to another, to give you a great deale [Editor: illegible word] whereupon hee departed and left me, and I went on giveing away the aforesaid papers.
But now in regard I can neither obtaine law nor justice, at the hands of the House of Commons, either upon my Star-chamber Iudges, nor yet upon, nor against the present House of Lords, most barbarous, tyrannicall, arbitrary, and murdering dealing with me, and seeing it is clearely discovered every day more then other, and obvious in my apprehesion to every rational mans eye, that the designe of the present seeming sanctified swaying faction; (which who they principally are, I have named before) is totally to subject the freemen of this Kingdome to vassaledge and slavery, and subdue there fundamentall lawes and liberties, by crushing in peices (arbitrarily and tyrannically,) every cordial hearted and Noun-Substantive English man, that due peepe out in the least to owne his freedome and liberties, or stand for them, thereby demonstrating that they have learned their lesson well, from that old guilded Fox the Lord Say, whose maxime it is (if he be not wronged) that it is as dangerous to let the people know their liberties and freedomes, as to let a stomackt House know his strength, and therefore it is, that my Lord and the rest of his new factionated Independents (who in my Judgement are grown more tyrannicall already, then either the Episcopalls of old, or the late swaying Presbyterians I have so many Beagles and Cur-doggs; not only to snarl at, but to bite the shins of every man they can find out, that dare presume to write, print, or publish any light or information to the people; and if they hold on but a little longer as they have begun, it is to be feared they will make it death, as the great Turke doth, for any man to keep a printing presse. And seeing they have (in my eyes) laid aside the studying the Gospell of truth and peace, or practising any thing that is commended by it, and are totally studying and practising of Machiavell and are closing and dabbing with the interest of the publique Priests, to make the publique pulpits sound forth their rotten praises, and uphold their new confused Babell sandy interest, though in this book (by reason of the great distractions of the kingdome) I thought to have been very tender of the House of Commons and its committees: yet because slavery and tyranny is already got over the threshold, I must furnish my friends with some weapons to keep it out of the kitchine and Hall, least it get possession speedily of the whole house, and for that end I shall insert my Defiance to Tyrants in a plea, which thus followeth.
ALL Magistracy in England, is bounded by the known and declared Law of England,a and while they Act according to Law, I am bound to obey them, but when they leave the rules thereof, and walk by the arbitrarie rules of their own Will, they doe not act as Magistrates, but asb Tyrants; and cannot in such actings challenge any obedience, neither am I bound to yeeld it, but am in conscience and duty to myself and my native Country, therein to resist and withstand them, and if their Officers goe about by force and violence to Compell me to obey and stoop unto their arbitrary and illegall command; I may, and ought (if I will be true to my native and legall freedoms) by force to withstand him or them, in the same manner that I may withstand a man that comes to rob my house, or as I may withstand a man that upon the highway, by force and violence, would take my purse or life from me.c
And therefore all Warrants comming from any pretended or reall Committees of Lords and Commons to command me before them, that are not formed according to the Law of England, I ought not to obey, but withstand and resist upon paine of being by all ambiused understanding men of England esteemed, a betrayer and destroyer of the Lawe, and liberties of England, for the preservation of which, I ought to contest as Naboth did with King Ahab for his vineyard, 1 King. 21. 2, 3, 4, 13. And by the Law of England, no warrant or processe ought to issue out to summon up any man to any Court of Justice in England whatsoever, till a complaint by a certain prosecutor be filed or exhibited, in that Court of justice, from whence the warrant, processe, or Summons comes, which warrant, processe, or Summons ought expresly to containe the nature of the cause to which I am to answer, and the name of my prosecutor or complainants, or else it is not legall, and so not binding, but may and ought to be resisted by me, and the Court must be sure to have legall jurisdiction over the causes,
Secondly, All the Capacities that either the House of Commons or Lords can sit in, it.
First, Either as a Councell, and so are to be close, (and for any man whatsoever in the Capacitie to come, or offer to come in amongst them, that doe not belong unto them, is unwarrantable, and so punishable,d or else.
Secondly, As a Court of Iustice, to try and examine men in criminall causes, and in this capacitie they or any of their Committees ought alwayes to Sit open, for all peaceable men freely to behold and see,(e) or else I am not bound to go to any tryall with them, or answer them a word, and therefore in this sense most illegall is the close Committee of Lords and Commons, for examining those (they call) London Agents, or any other whatsoever.
And Thirdly, that Close Committee is most illegall, being a mixture of Lords with Commons, seeing the Lords are none of their or my Peers and Equalls by Law, and so cannot, nor ought not to be there, to be my examiners, tryers or Judges, and a traytor I am to the lawes and liberties of England, if I stoop or submit to the jurisdiction or power of such a mixt Committee.f
Thirdly, It is contrary to Law, and expresly against the Petition of right, either for this Committee of Lords and Commons; or any other Court of justice or Committee whatsoever, to force mee or any man to answer to interrogatories against my self, or my neer relations.
Fourthly, Neither can they legally go about to try or punish me, for any crime that is triable or punishable at Common law.g
Fiftly, and if in case there be no Law extant, to punish their Pretended London Agents for doing their duty in prosecuting those iust things, that the Parliament hath often declared is the right and due of all the free men in England, they ought to goe free from punishment, for where there is no Law, there can (saith the Apostle Paul) be no transgression,h but if that Committee or any other power in England shall Commit me, or any Commoner in England to prison, for disobeying their illegall and Arbitrary Orders, it is more then by Law they can doe, neither ought I to goe to prison, but by force and violence (which I cannot resist) and I ought to see that the warrant be legall in the form of it, that is to say, that it be under hand and seale, and that he or they in law have power to commit me, and that the warrant contain the expresse cause wherefore I am committed, and also have a lawfull conclusion, viz., and him safety to keep untill he be delivered by due course of Law, and not during the pleasure of this House or Committee, or till this house or Committee doe further order, and I may and ought to read the warrant, and to have a copie of it, if I demand it, without saying any thing for it, and if I be committed for any crime not mentioned in the statute of 3. Ed. 1 Chap. 14. 4. I am Baileable, which I may and ought to tender in person to the parties that Commit me, either (if I have them by me)ik before I goe to prison, or else as soone as I am in prison, or as soon as I can conveniently get fit baile for me; and in case I be legally committed, both for power, matter and for me, and be kept in person after I have proffered baile (as before) I may bring my action of false imprisonment, and recover damages therefore: but besides know this, that there is not one farthing token due to the Serient as Armes or any other Officer whatsoever, that carries me to prison, neither is there one peny due to any Gaoler whatsoever for fees from me, but one bare groat at most; I and when I am in prison, I ought to be used with all civilitie and humanitie; for that great Lawyer, Sir Edw. Cook expresly saith, in That imprisonment must only be a safe custodie, not a punishment, and that a prison ought to be for keeping men safe to be duly tryed, according to the Law and custome of the Land, but not in the least to punish or destroy them, (or to remaine in it till the party committing please) and he further saith, in his exposition of the 26. chap. of Magna Charta, that the Law of the Land favouring the libertie and freedome of a man from imprisonment, and so highly hating the imprisonment of any man whatsoever, though committed or accused of heinous and odious crimes, that by law it self is not baileable, yet in such a case it allowes the prisoner the benefit of the Writ called de odio & aria, anciently called breve, de bono & Malo to purchase his liberty by, which (he saith) he ought to have out gratis, which writ is in force to this day, and therefore (he saith ibid.) that the Iustices of assize, Iustices of Oyer and Terminer, and of Gaole delivery have not suffered the prisoner to be long detained, but at their next comming have given the prisoner full and speedy iustice, by due tryall without detaining him long in prison. Nay (saith he) they have been so far from allowance of his detaining in prison without due tryall, that it was resolved in the case of the Abot of St. Albon, by the whole Court, that where the King had granted to the Abott of St. Albon, to have a Gaole, and to have a Gaole delivery, and divers persons were committed to that Gaole for felony, and because the Abott would not be at the cost to make deliverance, he detained them in prison long time without making lawfull deliverance, that the Abott had for that cause forfeited his franchise, and that the same might be seized into the Kings hand.lmn
And in case the party be committed to prison unjustly, and no Baile will be taken for him, he ought to require a Copy of his Mittimus, and to have it gratis, and if I should demand it and it would not be given me, I would not goe unlesse I were carried by force, by head and heeles, and then I would cry out Murder, Murder,o and doe the best I could to preserve my self till I had got a Copy of it; for many times, when; man comes into prison the dogged Gaoler will refuse to let me have it (which may be a great detrimnet to me) and if I stirre or busle for it, his will shall be a Law unto me, to durgean me, belt and fetter me, contrary to Law. It being (as Andrew Horne saith in his excellent book called the Mirrour of justice in English, Chap. 5. Sect. 1. devision 54. pag. 238.) an abuse of Law, that a prisoner is laden with irons, or put to paine before he be attainted of fellony, &c. And when J am thus in prison (committed by what authority soever) the first thing that J am to doe, is to send my friend (be he what he will be) as well a private understanding resolute man, as a Lawyer) for either myself, or any one I will appoint, may and ought to plead my cause before any Iudge in England, as well as any Lawyer in the kingdome, and neither ought by the Iudge to be forbidden, snub’d, or browbeaten) to the Chancery for a Habeas Corpus, if it be out of Tearm: for as Sir Edward Cook on the 29. chap. of Magna Charta wellp saith, the Chancery is a shop of iustice alwayes open, and never adiourned, so as the subiect being wrongfully imprisoned; may have justice for the liberty of his person as well in the Vacation time, as in the Tearme, but if it be Tearm time, it is most proper to move for the Habeas Corpus at the Kings bench barre, and if the Judges refuse to grant it unto you (it being your right by Law, as the Petition of right fully declare,q and the Iudges by their oath (before printed pag. 10. 36.) are bound to execute the Law impartially, without giving care in the least, to the unjust command of the Parliament, or any other against it) then you may by the Law indict the Iudge or Iudges for Perjury, and if then they shall deny you the benefit of the Law, I know no reason but you may conclude them absolute Tyrants, and that the foundation of Government is overturned, &c you (as the Parliament hath taught you) are left to the naturall remedy to preserve your selves which self preservation, they have declared no people can be deprived of; see their declarations, 1. part book decl. p. 207. 690. 728, 150.
From my arbitrary, tyrannicall, and
Murthering imprisonment, in the
Tower of London this 2. of Decemb.
Iohn Lilburne, in adversity and prosperity,
and in life and death, alwayes one
and the same for the liberties of himself,
and his native Country.
BVt while I was concluding this second edition of the London Agents plea, with the foreexpressed additions, newes is brought me that the committee of plundered Ministers, summons up Londoners, and commits them for non payment of Tythes; for whom I frame a Plea thus. That the houses of Parliament, have already made two Ordinances about tythes of the 8. of Novem. 1644. and the 9. of August 1647. and by those Ordinances referred the London-Parsons, or ministers in London, to get their tythes according to the statute of the 17. H. 8. 12. which statute authorised such, and such men to be Commissioners as are therin named, or any six of them to make a decree, which decree shall be as binding to the Londoners as an expresse act of Parliament, in which they give the Parsons two shillings nine-pence in the pound, for all houserents, &c. which the Londoners, are bound to pay unto their parsons, if the said decree had (as by the foresaid statute it ought to have been) entred upon record in the High Court of Chancery, which it never was nor is there to be found as M. Narborow the Lawyer, in Roben-hoods court in Bow-lane London proved by certificate under the Record-keepers hand, before Alderman Adams, when he was Lord Mayor of London; in a case betwine Parson Glendon of Barkins by Tower-hill, and one of his Parishoners, viz. Mr. Robert a Merchant, as I remember for I was by, and heard all the Plea.
And therefore the Parsons of London, can neither by Law nor those Ordinances, recover or justly require, one farthing token of Tythes from any Citizen of London.
And for the Committee of plundered Ministers, by any pretended authority that yet as visible, to take upon them to execute those Ordinances, or to compel the Citizens of London to pay tythes to their Parsons or Ministers, they have no more authority or right to due it, then a Thief hath upon the high way to rob me of my purse, or life, and for them by the Law of their owne will, to take upon them to send Summons to any Free-man of England, and to force them to come before them; & without due processe of* law, to pay so much money to the Parsons, upon any pretence whatsoever, and for unwillingnesse to pay, to commit him or them to prison, is a crime in my Judgement of as high a nature in subverting our fundamentall lawes and liberties, and seting up an Arbitrary Tyrannical government, as the Earle of Strafford was accused of; and lost his head for; and as wel do the actors in this arbitrary Committee deserve to dye for these actions, as Trayterous subverters of all lawes, as the Earle of Strafford did for his, against whom in the fift Article of his aditionall Impeachment of treason, it is alledged against him, That he did use and exercise a power, above and against; and to the subversion of the said fundamentall Lawes, extending such his power, to the goods, free-holds, inheritances liberties, and lives of the people.
And in the sixt Article of his said impeachment, it is laid unto his charge, as a transcendent treasonable crime, That the said Thomas Earle of Strafford, without any legall proceedings, and upon a paper Petiton of Richard Rolstone, did cause the said Lord Mount Norris, to be disseized and put out of possession of his free-hold and inheritance, without due processe of Law.
And in the seventh Article, he the said Earle is charged, That in the terme of holy Trinity, in the 13. yeare of his now Maiesties raigne, did cause a case commonly called the case of Tenures upon defective Titles, to be made and drawne up without any Iury or Tryall, or other legall Processe, without the consent of parties, by colour of which lawlesse proceedings, divers of his Maiesties subiects (and particularly the Lord Tho. Dillon) were outed of their possessions, and disseized of there free-hold, by colour of the same resolution without Legall proceedings, whereby many hundreds of his Maiesties Subiects were undone, and their Families utterly ruinated.
And in the 8. Article, he is impeached, That upon a petition of St. Iohn Gilford Knight, the first day of Febr. in the said 13. yeare of his Maiesties raigne, without any legall processe, mode a decree against Adam Viscount Loftus of Elie, and did cause the said Viscont to be imprisoned and kept close Prisoner, on pretence of disobedience to the said decree or order; and without any Legall proceedings, did in the same 13. yeare imprison. George Earle of Kildare against law thereby to inforce him to submit his Title to the Manner and Lordship of Castle Leigh (being of great yearly value) to the said Earle of Strafford, wil and pleasure, and kept him a yeare Prisoner for the said cause, two Monethes whereof he kept him close Prisoner,† & c.
Now the Parliament it selfe or the Members thereof, being as Sr. Edward Cook well declares (in his 4, part instituts, published for good Law, by their own speciall orders) as subject to the Law, as other men (saving in the freedome of arrests, that so their persons may not be hindred from the discharge of their trust in the house, which their Country hath suposed in them) and unto whom all it be repealled, it is a rule, as well as to any other man in England whatsoever, especially in all actions or differences betwixt party and party and that Parliament man that shall say, that any Committee of Parliament, or the whole houses is the Law, shewes and declares himselfe either ignorant of the Law, or a voluntary & wilfull deceiver: for what is within their breasts I neither can know, nor am bound to enquire after for to know or take notice of,* neither is any thing therein (till it be legally put in writing, legally debated, passed, and legally published) binding in the least unto me or of any man in England: and indeed to speake properly, the Parliaments worke is to repeale old Lawes, and to make new ones, to pull downe old Courts of Justice, and erect now ones, to make warre and conclude peace, to raise money, and see it rightly and providently disposed of (but themselves are not in the least to finger it†) it being their proper work to punish those that imbezle, and wast it, but if they should finger it and wast it, may not the Kingdom easily be cheated of its treasure, and also be left without meanes to punish them for it? and most dishonourable it is, and below the greatnesse of Legslators, to stoop to be executors of the law, and indeed it is most irrationall, and unjust they should, for if they doe me injustice I am robed and deprived of my remedie, and my Appeale, it being no where to be made but to them, whose worke it is to punish all male or evill administrators of justice: and therefore I wish they would seriously weigh their owne words in their declaration of the 17. of Aprill, 1646. 2. part book declaration, page 878. where to the whole Kingdome they declare that they will not nor any by colour of any authority derived from them, shall interrupt the ordinary course of justice in the severall Courts and Iudicatories of this Kingdome, nor intermeddle in cases of private interest, otherwhere determinable, unlesse it be in case of male administration of Iustice, wherein we shall see [say they] and provide, that right be done, and punishment inflicted, as there be occasion, according to the lawes of the kingdome, and the trust reposed in us.
And therefore seeing that by the law of their owne will, without due course or processe of Law, or any visible shadow or colour of Law; the Committe of plundered Ministers will Rob the Citizens of their proper goods, which is not in the least justifiable, for as Iudge Crook in the 61. pag. of his Argument in Mr. Hampdens Cause against ship money, saith, that the Law book called the Dr. and studient, chap. 5. pag. 8. setting down, that the Law doth vest the absolute, property of every mans goods in himself; and that they cannot be taken from him but by his (legall) consent, saith, that is the reason if they he taken from him, the party shall answer the full value thereof in damage, and so (saith Iudge Crook) I conceive that the party that doth this wrong to another, shall besides the damages to the party, be imprisoned and pay a fine to the King, which in the Kings bench is the tenth part of as much as he payeth to the party, so then if the King will punish the wrong of taking of Goods without consent between party and party, much more will be not by any prerogative take away any mans goods without his assent particular or generall.
But if they will either have your goods or your libertie from you by the Law of their own wills, be sure you play the Englishman, not foolishly or willingly to betray your liberty into their hands, but in this case, part with them as you would part with your purse to a Theefe that robs you upon the high way, for the forementioned Lawyer in the forementioned 8. pag. saith, that by the prime Laws of reason and nature (which are the Lawes of God) it is lawful for a man to defend himself against an unjust power, so he keep due distance, so that if they will have your goods, let them distraine for them, and then you may replivie them, and thereby at law try the title of their right, and if they will imprison your person, goe not but by force, and be sure to stand upon the legallity of the warrant, which that you may fully and truly understand the forme of it; I shall give you at large the words of Sir Edward Cook in the 2. part of his institutes, fol. 590, 591, 592. published by the Parliaments own authority for good law, who being expounding the Statute of breaking prison made in the first E. 2. upon the words, without cause, &c. fo. 590. expresly saith this act speaking of a cause, is to be intended of a lawfull cause; and therefore false imprisonment is not within this act.
Imprisonment is a restraint of a mans liberty, under the custodie of another, by lawfull warrant indeed or in law, lawfull warrant is, when the offence appeareth by matter of record, or when it doth not appeare by matter of Record.
By matter of Record, as when the party is taken upon an Jndictment at the suit of the King, at upon an appeale, at the suit of the party: when it doth not appeare by matter of Record, as when a felony is done, and the offender by a lawfull Mittimus is committed to the Gaole for the same. But between these two cases, there is a great diversitie: for in the first case, whether any felony were committed, or no, If the offender be taken by force of a Capias, the warrant is lawfull, and if he break prison, it is felony, albeit no felony were committed. But in the other case, if no felony be done at all, and yet he is committed to prison for a supposed Felony, and break prison, this is no felony, for there is no cause. And the words of this Act† are, unlesse the cause for which he was taken require such a iudgment, so as the cause must be just, and not feigned, for things feigned require no judgement.
If A. give B. a mortall wound, for which A. is committed to Prison, and breaketh prison, B. dyeth of the wound within the yeare, this death hath relation to the stroke, but because relations are but fictions in Law, and fictions are not here intended, this escape is no felony, 11. H. 4. 11. Plowd Coun. 408. Coler case.
Seeing the weight of this businesse, touching this point, to make the escape, either in the party, or in the Gaolers felony, dependeth upon the lawfulnesse of the Mittimus, it will be necessary to say somewhat 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 maketh the Mittimus, and is to be directed to the Gaoler or keeper of the Gaole or prison: Secondly, it must containe the case (as it expresly appeareth by this* Act, unlesse the cause for which he was taken, &c.) but not so certainly as an Indictment ought, and yet with such convenient certainly, as it may appeare judicially, that the offence require such a iudgement; as for high treason, to wit, against the person of our Lord the King; or for the counterfeiting 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 felony, to wit for the death of such a one, &c. or for Burglary or Robbery, &c. or for felony, for stealing of a Horse, &c. or the like, so as it may in such a generality appeare judicially, that the offence requires such a judgement.
And this is proved both by reason, and authority. By reason; first, for that it is in case of fellony, (which doth induce, or draw on the last punishment) and therefore ought to have convenient certainty, as it is aforesaid. Secondly, Also it must have convenient certainty, for that a voluntary escape is felony in the Gaoler. Thirdly, If the Mittimus should be good generally, (for felony) then, as the old rule is, (the ignorance of the Judge, should be the calamity of the innocent:) for the truth of the case may be that he did steale Charters of Land, or wood growing, or the like, which in law are no felonies and therefore in reason, in a case of so high nature, concerning the life of man, the convenient certainty ought to be shewed.
By Authority, the constant forme of the Jndictment, in that case for escape, either by the party, or voluntarily suffered by the Gaoler, is, That he was arrested for suspition of a certaine felony, namely, for the death of a certain man, M. N. feloniously slaine, or the like; for the Indictment must rehearse the effect of the Mittimus, which directly proveth, that the cause in such a generall certainty ought to be shewed, vid. 23. E. 3. fo. 48.
And if a man be indicted of treason, or indicted or apealed for felony, the Capias therupon, wherby the party is to be arrested, comprehendeth the cause (and therefore much more the Mittimus) whereby the party is to be arrested, having no such ground of Record, as the Capias hath; must pursuing the effect of the Capias, comprehend the case in convenient certainty, 21. E. 3. fol. 42. pl. 32. there ought to be a certain cause; and in the same leafe, pl. 35. in case of breaking of prison, the cause of the imprisonment ought to be shewed.
If a man be indicted (that he break prison feloniously, &c.) generally, it is not good, for the indictment ought to rehearse the specialty of the matter according to the statute. that he being imprisoned for felony, &c. brake Prison: We have quoted many other books, which though they bee not so certainly reported, as might have bin wished, yet the judicious Reader will gather fruit of them. But see before the exposition of Magna Charta, cap. 29. (by the Law of the Land) and observe well the Writ of Habeas Corpus, for a direct proofe, that the cause ought to be shewed.
Lastly, see, hereafter in the exposition of the Statute of Articuli cleri, the resolution of all the Judges of England; the answer to the 21. and 22. objections, which we will in no sort abridge for the excellency thereof; but referre you to the fountaines themselves.
Hereupon it appeareth, that the common Warant or Mittimus, to answer to such things as shall be obiected against him, is utterly against Law.
Now as the Mittimus must containe the cause, so the conclusion must be according to law; viz. The Prisoner safely to be kept, untill he be delivered by due order of Law, and not untill he that made it, shall give order or the like.
I had here an intent largely to have insisted upon the Lords tyrannicall exercise of their illegall usurpations, upon divers of the free Commons of England, besides my self, whom they have most Arbitrarily and tyrannically without all shaddow of Law (saving the lawlesse, unlimitted* tyranny of their own meer unbounded wills and pleasures) sent unto severall Gaoles in this Kingdome, but because my time hath been exceedingly prevented, and my intentions frustrated by those late stormes, and ungrounded, fluttering, bellowing, whirl-wind tempests, that hath lately been (most falsely, uniustly and maliciously) raised against me by an English Tertullus Orator, called Mr. Marsterson, the false and lying Sepheard of Shoreditch neer London; whose impeachment of me at the Lords and Commons Barre (of designing the destruction and overthrow of the present Parliament, although it hath made a great ecchoing and noise in the Kingdome) I no more valew then a blast of wind, but let malice it self in all its hight doe the worst it can.
Yet I say by these new stormes, I have been a little diverted from my purpose, in fully painting the Lords at present, and therefore because I judg it more then time to have this discourse abroad, I shall suspend the full execution of my intentions till my late speeches at the House of Commons barre come to the publique view, where I have drawn their Pictures as lively (I beleeve) as any picture drawer in England ever did.
And therefore I shall only at present confusedly fill up this spare paper, and I shall begin with my proposition which I sent to the Speaker of the House of Commons, which he caused to be read in their House, and which verbatum thus followeth.
Kingdome of England, Octob. 2. 1647.
I Grant the House of Lords according to the Statute of the 14. Ed. 3. chap. 5. to have in law a iurisdiction for redressing of grivances, either upon illegall delayes, or illegall iudgements given in any of the Courts at Westminster Hall, provided, they have the Kings particular Commission therefore, and all other the legall Punctilloes contained in that Statute, which jurisdiction and no other, seems to me to be confirmed by the Statutes of the 27. Eliz. chap. 8. and 31. Eliz. chap. 1.
But I positively deny, that the House of Lords, by the known and declared Law of England, have any originall Jurisdiction over any Commoner of England whatsoever, either for life, limb, liberty, or estate, which is the only and alone thing in controversie betwixt them and me. And this position I will in a publique assemely, or before both Houses, in law debate, with any 40. Lawyers in England that are practisers of the Law, and I will be content the Lords shall chuse them every man, and if after I have said for my self what I can, that any three of these forty Lawyers sworn to deliver their judgements according to the known law of England, give it under their hands against me, I will give ever my present contest with the Lords, and surrender my self up to the punishment and sentence of the present Lords and Commons.
Provided at this debate, I may have 6. or 10. of my own friends present to take in writing all that passeth thereupon. Witnesse my hand and seale in the presence of divers witnesses in the Tower of London, this 2. of October, 1647.
And to conclude this book, I shall only add a breviate of my grand Plea against the Lords, as I delivered it to the House of Commons, in half a sheet of paper the 11. Nov. which thus followeth.
[† ] For Andrew Horne declares p. 219. that it is an abuse of the common Law, that Iustices and their Officers, who kill people by false judgement, be not destroyed, as other murtherers, which King Alfrid caused to be done, who caused 44. Iustices in one yeare to be hanged as murtherers, for their false judgements, and page 241. he saith, that he hanged Arnold because he saved Boylife, who robbed the people by cullour of distresses, whereof some were by selling distresses, some by extortions of fines, &c.
[† ] See that notable discourse of him in Putney Projects, and also in a little book, called the Grand Design, and the justification of Sir Iohn Maynard prisoner in the Tower called the Royall Quarrell.
[* ] But saith the aincient Lawyer Andrew Horne, in his Mirror of justice, chap. 5. Sect 1. de. 3. page 225. it is an abuse of the common Law of England, that the Lawes and customes of the Realme, with their occasions are not put in writing, whereby they may be known, so as they might be knowne by all men.
[† ] See Mr. Nat. Fines his notable speech against the Bishops Cannons made 1640 and printed in a book called Speeches and passages presented for Will-Crook at Furnivals Inne gate in Holborne 1641. page 49. 50. 51. and the house of Commons vote Dec. 15. 1640. ibim. page 328. and the statute made this Parliament that abolished Eccelesiasticall Iurisdiction.
[a ] 34. Ed. 1. chap. 1.
[b ] 25. Ed. 3. Rot. Par.
[c ] 25. Ed. 1. 6. 1. Ed. 3. 6. 11. R. 2. 9. 1. R. 3. 2.
[* ] Oaths Ex Officio unlawfull.
[* ] All Magistracy in England is bounded by the law thereof.
[d ] 9. H. 3. 29.
[e ] 28. Ed. 3. 3.
[f ] 25. Ed. 3.
[* ] Imprisonment without cause shewed is illegall. See also Cooks 2. part institutes, upon the 29. chap. Magna Charta.
[† ] Compulsive billiting of Soldiers unlawfull, and it is very observable that the King at the time of this complaint had warres with France.
[g ] 25 Edw. 3. 9.
[h ] No man ought to be adiudged but by the established lawes. 9. H. 3. 29. 5. Ed. 3. 9. 25. Ed. 3: 4. 18. Ed. 3. 3.
[† ] Marshall law altogether unlawfull in England in times of peace especially, and therefore that Soldier of Col. Robert Lilburnes Regiment that was lately shot at the Rendezvouz neere Ware, was meerely murthered.
[† ] All the administrators of the law, are to execute their places according to the law and not otherwise.
[† ] And the reason was because in this his first answer be doth not grant that the things claimed in the Petition as they are laid down, are the lawes, rights, and liberties of England, and so had left it in the Iudges breasts to have given their Iudgements as well against as with the Petition, but his second answer, let right be done as is desired, is full to the purpose.
[† ] Especiall in the 2. Edition of my Plea in bar, to Iudge Reeves reprinted Aug. 1647. and called the iust mans iustification, & my book called the resolved mans resolution, pag. 19, 20. 21, 22. and my epistle to Mr. Martin of the 31. May, called rash oaths unwarrantable, pag. 27. 28. 48, 49, 50. See also Englands Birth Right, pag. 30. 31. 32, 33.
[* ] Chap. 8. and 13.
[† ] 36. Ed. 3. 12. 14. R. 2. 11. See also the wages of the Clerke of the peace, in the Statutes of 27. H. 8. 16. and 5. Eliz. 12. and 13. Eliz. 25.
[* ] This is a Statute of bondage and losse of liberty.
[† ] Suits for withholing of tyths shall bee in the Eccllesiasticall Court and no where else.
[a ] Dyer fo. 377.
[b ] Cook l. 6. fo. 29.
[a ] Dyer fo. 377. 346. 369. Co. ll. 6. fo. 29.
[a ] 9. H. 3. 29.
[b ] 5. E. 3. 9.
[c ] 25. E. 3. 4.
[d ] 28. E. 3. 3.
[e ] 42. Ed. 3. 3.
[f ] 36. Ed. 3.
[† ] This is a mistake of the councell that drew the plea, for tythes by the statute law of this Kingdome, are only recoverable in the ecclesiasticall courts, and not at the common law, as fully and clearly appeares by the 1 of Ed. 6. chap. 13: and the ecclesiasticall Iurisdiction is totally abolished by act of Parliament, this present Parliament anno Caroli Regis 17. so that by law the Parsons can recover no tythes.
[* ] Penalty for maintaining the authority of the Bishop of Rome 5. Eliz. chap. 1. Penalty to draw any subjects from their obedience to the King to the Roman religion. Idem.
[† ] The names, functions and stiles of Bishops are taken away. Ord. 9. Octob. 1646. and their Episcopall iurisdiction and power with their tythes, vicarages, personages, &c.
[* ] See the 13. Eliz. chap. 12.
[* ] Hierarchy exterpated root and branch, and government by Prelacy, whereof Vicars be part. See the Ordinances of the 9. of Octob. and the 16. Novemb. 1646 2. part book decl. fol. 922. 932. see also the Covenant.
[† ] See the Ordinances of the 3. Ian. 1644. and 23. August, 1645. Parl. Decl. 2. part fol. 715. 716.
[* ] Tyths are not due iure divino, and at this present there is no law to compell their payment Cook Rep. 2. Quen. d. Winchester.
[* ] 2. & 3. Ed. 6. 13. Coe. li. 2. fol. 43.
[* ] See the act of the 17. of C.R. for abolution of Ecclesiastical jurisdiction.
[* ] See Andrew Horns mirror of iustice in English, chap. 5. Sect. 1. pag. 239. 240. 241. 242. &c. printed for Mat. Walbank at Grays Inne gate, 1646 where all their crimes are set down, which book is most extraordinarily well worth your reading.
[* ] Which writs of Replevy, you may have out of the Cusiters office belonging to every County, but get at one and the same time a writ of Replevin, a writ of Alias and a writ of Pluries, which last Writ runs with a penaltie, and if the Sheriff doe not execute it, there lyes an attachment against him, and in case he return that the goods are sold, and gone before he could repleve them, or drove into another County, then you may have a Capias in witbernam to distrain and take the parties own goods, that caused the first goods to be distrained, or any of those that had a hand in distraining, and no supersedeas whatsoever will lye to controule, or dam the writ, or hinder the execution of it, which writs with all other in force, you may read in the Law book called the Register, by the help of which, you may make all the Parsons in England goe whistle for their Tyths Which Register doth very well deserve your care and pains by authority to be translated into English.
[* ] And it is but a bad belief, so I say and wil maintain it against all the procters of the present House of Lords have in England, that they have no more right to their pretended legislative power then a thiefe that by force take my purse from me. Nor no more right to be called the legislator of England, then a man to be called an honest womans husband, that by force and violence robs her of her virginitie, and so commits a rape upon her, and by threat to save her life compells her to hold her peace. And I desire all the Commons of England seriously to consider how the Lords that flow from William the Conquerers sword, and the meer will of his successors can rationally pretend to a legislative power, when in their joynt Declarations with the present House of Commons they have declared the King their Creator hath none, but is bound by his Coronation oath to pass all such lawes as the folk or Commons shall chuse, and what greater evill can there be in the world, then seeing that all legislative power in the nature of it is Arbitrary, that for life an arbitrary power should be placed in the Lords, and heriditary in their sons, be they fooles or knaves, therefore up with them by the roots, and let no power hereafter be exercised in England, but what acknowledgly flowes as a trust from the people, or their Representatives, and who are subiect as other men to the Lawes.
[* ] See Paultons collection of statutes p. 1431. 1432.
[† ] See Sir Edw. Cooks Exposition hereof in his 2. part Institut. fol. 46, 47, 50, 51.
[* ] See the 5. Ed. 3. 9. & 25. Ed. 3. 4. & 28. Ed. 3. 3. & 37. Ed. 3. 18. & 42. Ed. 3. 3. and the Petition of Right in the third of the King, and the Statutes that abolished the Starre-Chamber and Ship-money, made this present Parliament; and Lievtenant Col. Iohn Lilburnes Book called the Resolved mans Resolution, p. 2, 3, 8, 9. and his Grand Plea against the Lords, pag. 7, 8, 9.
[* ] Well saith Sir Edward Cook in the 2. part of his Institutes fol. 48. that every oppression against law by colour of any usurped authority, is a kind of destruction: for when any thing is forbidden; all that tends to it is also forbidden; and it is (saith he) the worst oppression that is done by colour of justice. See also Lib. 10. fo. 74. in the case of the Marshalsea.
[† ] And therefore you, with your dealings with me, that am meerly a free Commoner of England, and so not in the least under your Marshall Discipline (but solely and only under the discipline of the known declared, and established Lawes of England) by your arbitrary, tyrannicall actings upon me, have absolutely as much as in your lyes, destroyed the fundamentall Lawes of England, and therefore are as absolute Hedge breakers and Levellers as ever were in this Kingdome.
[* ] Read also to this purpose Mr. Iohn Pyms speech against the Earl of Strafford, the 12. of April, 1641. printed Iohn Bartlet, but especially p. 5. 6. 8. 9. 13. 18. 23. 24.
[* ] And in the 1. 2. 3. pages before.
[† ] See the 9. H. 3. 29. 5. Ed. 3. 9. & 25. Ed. 3. 4. & 28. Ed. 3. 3.
[† ] Yet it is very observable, that at the very time when this Martiall Law complained of was executed; the King had warres with France, a forraign enemie, but there is no such thing now; and therefore the Army, or the grand Officer; thereof have not the least shadow or pretence to execute it in the least, or to deale with me a free Commoner, as they have done.
[* ] See the late Plea for the Agents, printed before. pag. 42, 43, 44.
[† ] See the ingagement in the Armies book of Decl. pag. 24, 25, 26, 27.
[* ] And if you do what are you better then a company of Rebels & Traytors to the Parliament, for your then opposing their power, authority, orders, and ordinances.
[† ] As is cleare by the Statutes of 3. Ed. 1. 33. & 37. Ed. 3. 18. & 38. Ed. 3. 9. & 42. Ed. 3. 3. & 2. R. 2. 5. & 12 R. 211. 5 part Cookes reports. pag. 125. & 13. H. 7. Kelway & 11. Eliz. Dier. 285. & 30. Assiz. pla. 19. & Liev. Col. John Lilburnes Grand Plea of 20. October 1647. pag. 7. 8.
[* ] See Vox Plebis pag. 38. & Lievt. Col. Jo. Lilburnes Anatomie of the Lords Tyranny, pag 10.
[† ] See 8. H. 6. fol. 21. & Eliz. Dier 220. & Dr. Bonhams case, 8. part of Cooks Reports and Lievt. Col. Jo. Lilburnes grand Plea, pag. 10.
[* ] See Mr. Henry Martins answer to the Scotchpapers, called the Independency of England at the last end.
[† ] But besides all this I doe confidently believe, that the Parliament never gave power unto the Generall since the wars ended to execute Martiall Law, neither doe I believe that some chiefe Executors of Martiall Law, have any Legall Commission from the Parliament, who never that I could heare of, ever gave power unto the Generall of himself to make generall Officers: and besides, all the Parliament men that are Officers in the Army were, (as I have been groundedly told formerly) taken off by an Ordinance of both Houses, which was never repealed since.
[* ] See Sir E. Cooks 2 part institut. fo. 47, 48. & 3. part, fol. 22. and 4. part, fol. 23. 25. 48. 291. all of which bookes are published for good law to the Kingdom by 2. speciall Orders of the present House of Commons, as you may read in the last pa. of the second part institut. see also the Petition of Right.
[† ] See the Armies Declaration of the 14. Iune, 1647. Book of their Declarations, pag. 39. and their Letter from Royston to the Lord Mayor of London, of the 10. Iune. 1647. which the Printer hath neglected to print in their book of Declarations.
[* ] See 2. part Instit. fol. 51. & 4. part. fol. 41. 196. 197. but especially read their Jndictment virbatim set down ibid. fo. 198, 199.
[† ] Which you may read before, pag. 1, 2, 3, & 45, 46, 47, 48, 49, 50, 51.
[* ] For whom the Statute law in such a condition, hath appointed punishments to be inflicted upon them in the ordinary Courts of iustice, either for false musters, cheating the Soldiers of their pay, or for [Editor: illegible word] giving them leave to depart, or for the Souldiers going from their Cullours without lawfull leave, or for imbeasing Horse or Armes, &c. See the 18. H. 6. 19. and 2, and 3. Ed. 6. 2. and 4. and 5. P. and M. chap. 3. and 5. Eliz. 5. and 5. Iames. 25.
[† ] Whom those godly, pious and righteous Gentlemen of the Councell of Warre tryed for his life, for no other crime, but for his honesty, in prosecuting that just paper called The Agreement of the People, and his life was saved but by two voices, O malicious and bloody men!
[† ] See the 5. Article in the impeachment of the Earl of Strafford. See also the 15. and 19. Article of that Impeachment.
[* ] Viz. Lievt. Gen. Cromwell, & his politique Sonne in Law, Com. Gen. Ireton, who are I will maintaine it the principall supporters, upholders, abetters, preservers, and defenders of the usurping House of Lords, in all their usurpations, illegall oppressions, tyranny, and murthering crueltie, for which if there were any justice to be had, they deserved better to be impeached of High Treason, for subverters of our lawes and liberties, then the Earle of Strafford, did in that before their eyes, they have seen his severe punishment, and yet walk in his steps.
[* ] For the Parliament owes me for my just arreares, the greatest part of a 1000. pound and my Ordinance for 1000. l. reparations against my uniust Star-chamber Iudges, hath layd dorment in their house this two yeares, although since then, I know severall of there owne Members, to whom out of the publique money they have given 5000 l. a a peece unto that I will upon the losse of my life evidently make it good, never suffered one hundreth part, of that which I did before this Parliament, and yet I am told some of them have received all there 5000. pounds.
[† ] And then they and some of there Pencionary Imps, lyingly get their Diurnall Mercuries to print to the view of the whole Kingdome, that they all had acknowledged their faults, and cry’d peccavie, when as some of them that are named in the Diurnall so to doe, have told me that it is the falsest lye in the world, for they never did any such thing, but ever did and still doe abhorre the thoughts of such a base and wicked acknowledgement.
[† ] For opposing whose interest till the peoples liberties were first setled, they sought the ruine and destruction of all those in the Army that appeared against it.
[† ] Which is clearely evident, by both their pleading and plotting for the supportation of the Lords usurped Legislative power, which I will maintaine it against Cromwell and Ireton, they have no more right to, instrict justice, then a thiefe and robber hath to a purse which he takes by force upon the high way, which pretended legislative power alone, hath brought all the warrs upon this Kingdom, for if they at first had concurred to the Ordinance of the Militia, the King could never have been able to have raised an Army, and to continue an arbitrary power for life, and also hereditarily to their heires, be they fooles or knaves, is the greatest vassalage and bondage that can be, therefore I say again down with them.
[† ] It is worth the taking notice, the Speaker is Sir John Lenthalls brother, and it is almost grown to a common proverb in England, that Parliament mens neer Allyes as well as themselves are above the reach of all law and justice, which I am sure if they look not speedily well about them, will destroy them every man.
[* ] And it is the clearest demonstration to me in the world, that the present men in power alwayes intended to walk in the oppressive & tyranous ways of the Star-chamber, High commission, & councel board, in that they have done no man effective iustice or right that suffered by them, least their own Acts should be binding presidents to pay their own Acts should be binding Presidents, to pay themselves by in future times.
[† ] The substance of which, with my defence against them in open Star Chamber, and when I stood upon the Pillory at Westminster, you may largely read in the relation of my first sufferings, called The Christian mans tryall, reprinted by Will. Larner 1641. now dwelling at the black boy within Bishops. Gate.
[* ] Which Order you may read at the last end of my above mentioned relation.
[* ] Which I did upon this ground, at the first medalizing of Sir Tho. Fairfaxes Army, the Parliament voted that none should beare office in that new Modell but he that would take the Covenant, whereupon though I was profered better imployment then before I ever had, yet I told Lieu. Generall Cromwell whose white Boy then I was, that upon them tearmes I scorned to be so base as ever againe to draw my sword for the Parliament, for hitherto I had served them, faithfully and uprightly out of principles of Conscience, and not as a Mercenary, for their money, and what [Editor: illegible word] soever he was, that should grow iealous of me without a cause. I would never againe upon any tearmes in the world serve that Master any more. As for, the Covenant every Knave and Rascal that had no more conscience then a dog, would take either it or any other with whatsoever for his own advantage, and for his gaine and profit breake it as soon as he had taken it, but J told him, I for my part was compelled to be honest out of a principle of conscience, and not out of the force of Oaths. And besides I for my particular would never be such a Traytor to the lawes of my God, and to the liberties of my native Country, as to take such an insnaring, intangling, dishonourable Scotch Oath.
[* ] Who by Mr. Speakers meanes Commiteed me at eight a clock at night, without hearing me, though at your doore, or without seeing those that accused me, and afterward made an Order to arraign me for my life at Newgate Sessions, and yet releast me without telling me wherefore I was imprisoned. See my book called Innocency and Truth iustified.
[a ] See the Petition of right, and Sir Edw. Cooks 4. part institutes, Chap. high Court of Parliament.
[b ] See King Iames his speech to the Parl. at White Hal 1609. and 1. par. book Decl. pag. 150. and my book called the Outcryes of oppressed Commons. pag. 16, 17. 18. and my Epistle to Mr. Martin of the 31. May 1647. called Rash Oaths, pag. 56.
[c ] See Cooks 2. part inst. upon the 329. chap. of Magna Charta, fo. 52. 53. and fo. 590, 591. and regall Tyrany, p. 78. 79. 80, 81. and Vox Plebis, p. 37. and my plea before Mr. Martin of the 6. Novem. 1646. called an anatomy of the Lords tyrany, pag. 5. 7. 8.
[d ] See Cooks 2. part. inst. fol. 103. 104. & 4. part inst. Chap. High Court of Parlm. and the book called the manner of holding Parlmts. & Mr. Prinns relation of the triall of Col. Nath Fines. p. 13. and regall tirany, pag. 82, 83.
[e ] See 2. part inst. fol. 103, 104. and my book called the resolved mans resolution, p. 56. and regall tyrany p. 80, 82, 83. & Mr. Prinns relation of Col. Nath. Fines his tryall, p. 11, 12, 13.
[f ] See my grand plea, and my letter 11. Nov. 1647. to every Jndividuall Member of the House of Commons, See Sir Edw. Cooks exposition of the 14. and 29. Chap of Magna Charta in his 2. part inst. and regall tyranny, p. 43, 44, 72, 73, 74, 85, 86. and Vox Plebis, pag. 38, 39, 40, 41, 42. and my Epistle to the Lievt. of the Tower the 13. Ian. 1646. called the oppressed mans oppressions declared, p. 17. 18, 19.
[g ] See Vox Plebis, p. 38. my anatomy of the Lords tyrany, p. 10. and Thompsons plea against Marshall Law.
[h ] See Rom. 4. 15. Englands Birth right, p. 1. 2, 3, 4, and the resolved mans resolution, p. 24, 25, 26.
[i ] See the proofes in the third Maginall note at the letter C.
[k ] Which Statute you may read before, p. 6. and take notice of this, that all misdemeanore whatsoever are Baileable.
[l ] I See the 3. E. 1. c. 26. and 4. E. 3. 10. and 23. H. 6. 10. Rast. plea. fo. 31. 7. Vox Plebis. p. 55, 56. 57. and my late Epistle to C. West late Liev. of the Tower, called the oppressed mans oppressions declared, p. 3, 4. 1. part Cook inst. Lib. 3. chap. 13. Sect. 71. fol. 368. where he positively declared, it was the native & ancient, rights of all Englishmen, both by the Statute and Common Law of England, to pay no fees at all to any administrators of justice whatsoever, or any Clarke or Officer whatsoever officiating under them, who were only to receive their Fees, Wages, and Salleries of the King, out of the publique treasure. See also 2. part inst. fol. 74. 209. 210. The Publique treasure of the Kingdom being betrusted with the King for that and such ends: see also that excellent book in English, called the Mirror of justice, chap. 5. Sect. 1. pag. 231. and Iudge Huttons argument in Mr. Hamdens case against ship money, pag. 41.
[m ] See 1. part inst. lib. 3. Chap. 7. Sect. 438. fo. 260. and the 2. part fo. 43, 315, 590. see my book called the oppressed mans oppressions declared, p. 3. Vox plebis p. 47, 55. 56. and liberty vindicated against slavery, p. 14, 15, 16,
[n ] in his 2. part inst. fol. 42, 43. which is exceeding well worth your reading, see fo. 315, 316, 590, 591. see the mirror of justice in English, chap. 5. Sect. 1. devision 53, 54, 55, 57, 58. pag. 231.
[o ] Only this is to be taken notice of, that if I commit an offence before the view of a Iudge or Iustices sitting upon the Bench I ought to goe to prison with, or by his verball command, with any officer of the Court he shall Command me to goe with, only he ought to enter a Mittiter & send it after me when the Court riseth, and I may if I please proffer him baile to answer the Law when he Commits me, which he ought not to refuse, and if he doe, it is false imprisonment, if my pretended or reall crime were baileable, and my action I may have against him.
[p ] In his 2. part inst. fo. 52, 53. in which pages you may rend the very words of an Habeas Corpus, as also in the 79, 80, 81. pages of Regall tiranny, where you may have them in English, as well as Latin.
[q ] Vpon which Habeas Corpus, if you be brought up to the barre, you ought if wrongfully imprisoned, clearely to be discharged without baile, and with baile if justly imprisoned if your crime be baileable, or else the Iudge forsweares himself, for which you may indict him for perjury, and also have an action at Law for false imprisonment against him that falsely committed you, or they that forced you hither, yea, and in divers cases against the Gaoler himself, who ought not by law (upon their perills) to receive or detaine you, but by a legall warrant flowing from a legall power, as before I have more fully noted. See also 1. p. book decl. p. 201. And you are to know, that any house keeper that stand not committed of crimes, but are legall men, paying scot and lot (though they be no subsidie men) are good baile, and if refused, you have your action of false imprisonment against him that so doth, and you are further to know, that if the prisoner he in a Country Gaole, who is to be brought up to the Bar in Westminster Hall upon the Habeas Corpus, that he is only to beare his owne charges, but by law is not bound to beate the Gaolers, or to pay him any thing for bringing him.
[* ] And what due processe of Law is, you may read in the 2. part institutes upon the 29. Chap. of Magna Charta, and Vox Plebis pag. 11, 12, 14, 15. & c. and my book called The resolved mans resolution, page 3, 4, 5, 6. & c. and my grand plea against the Lords, and Thompsons plea against the new Tyrants at Windsore executing Marshall Law.
[† ] All which you may at large reade in the 123, 124, 125. pages of a book called Speeches and Passages printed for Wil. Cook. at Furnivalls-Inne gate in Holburn, 1641.
[* ] See Englands Birth-right p. 3, 4, 5, 6, 7, 8.
[† ] For the third Article in the first impeachment of the Earle of Strafford in the above said book page 118. runs thus; that the better to inrich and inable himselfe to go thorow with his traiterous designs, he hath detained a great part of his Maj revenue, without giving legal account and hath taken great sums out of the Exchequer, converting them to his own use, when his Maiesty was necessitated for his owne urgent occasions, and his Army had been a long time unpaid.
[† ] See Magna Charta, Chap. 29.
[* ] 25. E. 3. f. 42. B. Coron. 134. 32. li. 3. Coron. 248. 9. E. 4. f. 52.
[* ] 9. E. 4. f. 26. 41. ass. 5. 22. E. 3. Coron. 242, 243, 248. 43. E. ibid. 424. 3. H. 3. ibid. 312. 328. 333, 345. 346. 2. E. 3. fo. 1. 26. ass. 51. 22. E. 3. 13. 27. ass. 42. 27. ass. pag. 116. 15. E. 2. Coron. 38. 9. H. 4. 1. 10. H. 4. 7. 11. H. 4. 11. 8. E. 2. Coron. 422. 430. 431. 27. H. 6. 7. 39. H. 6. 33. 2. R. 3. cap. 3. 2. H. 5. cap. 7. 21. H. 7. 17.