The LAWES Funerall. OR, An Epistle written by Lieutenant Col. JOHN LILBURN, Prisoner in the Tower of London, unto a friend of his, giving him a large rela­tion of his defence, made before the Judges of the Kings Bench, the 8. of May 1648. against both the illegall commitments of him by the House of Lords, and the House of Commons, and how that the Judges in open Court, were ne­cessitated to confesse, there is by neither of the commitments any crime in Law laid unto his Charge, yet though he was imprisoned for nothing, being committed by a superiour Court the Lords, and that upon a Sentence, they could not release him, but remanded him back again Prisoner unto the Tower, which is a full Declaration, there is no Law left in England now, but that the people thereof must be governed by the lust, will and pleasure of the House of Lords, &c. and though they deale never so unjustly with them, to the cause­lesse destruction of their Lives, Estates, and Families, yet the Judges of Eng­land (being in deed and in truth meere Ciphers) cannot remedy it, because it is done by their superiours, the House of Lords; wherefore the said Iohn Lil­burne doth declare his sorrowfulnesse in his great mistake, in zealously stirring up the people of England to stand up to maintain their Lawes, seeing they have none in being, but the will of the Lords, and therefore according to his promise, to the Judges in open Court; he provokes all the Commons of Eng­land out of all the Counties thereof, to hasten up to Westminster to the Lords house, and there suffer the Lords (who now have conquered and subdued all their Lawes) to bore them through their eares as their vassalls and slaves, if they can beare it with patience.

Proverbs 28.1.

The wicked flye when none pursueth; but the Righteous are as bold as a Lyon.

Deare Sir,

AT your earnest desire, I cannot chuse but give you, and the world, as perfect account as I can, of all that passed before the Judges of the Kings Bench, in reference to my selfe, upon Munday last, be­ing the 8. of this present May. And in the first place, I must in­treate you to take notice, of the reason or cause of my being there that day, which was upon my own earnest desire; for looking upon my selfe unavoidably in the roade way of destruction, in the continuance of my causelesse and arbitrary imprisonment, and finding the generality of the House of Com­mons, [Page 2](who should be the true and faithfull conservators of the Lawes and Li­berties of England) deafe unto Justice, and their eares and hearts sealed up a­gainst it, so that of them, I for my part may almost complain, as the Psalmist doth, they are all gone aside, they are altogether become filthy: there is none that do good, no not one; for they eat up the people as they eat bread, and call not upon the Lord. Psal. 14.3.4.

I say, at the serious consideration hereof, musing with my selfe what to do for my own preservation, and the preservation of my wife and little Children (which nature and the Law of God teacheth me to endeavour with all my might) who are all in the eye of reason unavoidably destroyed in my continu­ance in prison, and I was staved of in my own Conscience, from the use of extra­ordinary meanes for my deliverance, till I had attempted what the Judges of the law would do for me, whom I lookt upon as my last legall refuge, and supposed they might happily do me some good; but I durst not feede my thoughts with a­ny confident hopes of Justice from them, being they are created, and made Judges by the power and authority of my potent adversaries, and therefore must needes serve their ends, or else be thrown out of their places, yet I was resolved to put all the strength I had to the work; and for that end, I, the 4. of April last writ an effectuall letter to the Speaker of the House, & in print intitulled it, The Prisoners Plea for a Habeas Corpus, & therein print my Petitioned to the Judges of the Kings Bench, for my Habeas Corpus, and because Councell the last Teime had failed me, and durst not move for me; I was necessitated to write an­other Epistle the 7. of April 1648. to all the morall honest Englishmen, in and a­bout the City of London, whether Episcopall, Presbyterian, or those commonly called Sectaries, and in print intitulled it, The oppressed mans importunate and mournfull cryes, to be brought to the Barre of Justice, in which I earnestly intreat them the first day of the Tearme, being April the 19. 1648. to deliver my Peti­tion for me, and get me a Habeas Corpus, which now I thank them, divers of them did; and procured me a Habeas Corpus, which the Lieutenant of the Tower withstood, and did not carry up my body; whereupon I by a new Petition com­plained of him to the Judges, but they in my apprehension grew somwhat deafe; upon which I was necessitated the very present to write a rufling letter to Judge Roll, which in print is intituled,

Vpon which letter I had an Alias granted me, with a penalty of 40 l. which the Lieutenant obeyed, and accordingly upon Munday last, sent my body to Westminster, where I arrived betwixt 8. and 9. a Clock, and found both the Judges and my Grandee Adversary, Soliciter, Sr. Iohn, &c. very hard at whis­pering discourse, neare the Chancery Court, and upon the Judges going to the Bench, I stept to the Barre, and presently the Lieutenant of the Tower was cal­led to make a returne of his Habeas Corpus, whereupon his Servant Mr. Comport and my Keeper, made answer, here was the Prisoner Mr. Lilburne at the Barre, [Page 3]upon which the Judge asked him for the returne, and he told him he was but a Servant, and at the Command of the Lieutenant, had brought up the body of Mr. Lilburne, which was all the returne he had, and immediately the Lieutenant himselfe, as I conceive, gave in the returne, and then Mr. Iustice Bacon demanded of me, where my Councell was, and being standing up upon a high place before the Bench, with a loud voice I answered him, I had none, neither would I have any, but desired to cast the weight of my Cause upon my own abilities, which were sufficiently able to inable me to plead my cause my selfe before them; and therefore Sir, said I, (with a shrill voice) I crave and demand at your hands, as my naturall and undoubted right, the same benefit and priviledge that Paul al­wayes injoyed from the hands of the Pagan and Heathen Roman Judges, who alwayes gave him free liberty as his Right to plead his Cause before them, and to speake in the best manner he could for himselfe; but Sir, if you will not follow that just example of the Pagan Roman Judges, Then in the second place, I crave the same priviledge from you, that I injoyed from the hands of the Caviliers at Oxford, who when I stood before Judge Heath for my life, (being arrained in Irons for High-Treason, in levying Warre by the Parliaments Command against the King,) he nobly told me, he would give me the utmost priviledge that the Law of England would afford me, and further declared unto me, it was my right by Law to plead for my selfe, and say whatsoever I could for my selfe, which he freely without any interruption gave me leave to do; and Sir, I hope you will not be more unjust unto me, then the Pagan Roman Judges were to Paul, or the Caviliers to my selfe at Oxford, in denying me my priviledge to speake and plead for my selfe.

Whereupon Mr. Justice Bacon replied, and said, Sir, it is a favour that you are permitted to plead by councell. Sir, said I, by your favour, I doe not judge it so, and besides I desire Mr. Iustice Bacon, with all respect unto you, and desire to let you know: I do not com here to beg boones or courtisies at your hands, but I come here to claime my right, & do with confidence tell you Sir; that it is not only my undoubted naturall right, by the light and Law of nature; yea and by the ancient common Law of England to plead my owne cause my selfe, if I please, but it is also the naturall and undoubted right of every individuall Englishmen, yea and of every man, upon the face of the Earth, in what Countrey soever; and therefore, Sir, I demand from you, liberty to specke frealy for my selfe, not only by the Law of nature, but also by the ancient Common law of England, freely telling you that I Judge my cause of that consequence to my selfe, and all the Commons of England, that I will trust never a Lawyer in the Kingdome to plead for me, and therefore againe demand to as my right, leave to plead my selfe, the which if you will not grant me I have done, and haue no more to say to you, whereupon the Iudges commanded the lawyers to make me roome and called me closse to the Barr, where I did my respect unto them, and [Page 4]they caused the returne to be read, which consisted of my commitment from the Lords the 11 of Iuly 1646, & my commitment from the Commons. 19 Ian: 1647 and a late order of the commons to command the Lievetenant of the Tower, up­on removeall of his prisoners not to remove the 4 Aldermen, nor Sir Iohn May­nard, nor my selfe; which returne in the conclusion hereof I shall insert, and then as I conceive because some of the returne was latten, Iudge Bacon askt me if I understood it, and I said, yes, for I had cause enough given me so to doe; where­upon he begun to tell me I might easily perceive I was Committed by the Lords upon a Centence, and begun to amplifie their power, as a superior court, whose actions were not to be questioned or controled by the Judges of the Kings Bench, because they were inferior to them.

Unto which I replied. Sir, I desire the returne may be ordered to be entered upon record, and this I pressed diverse times, and desired that if the Lieute­nant had any thing to add to the returne, he might now speak, or else forthwith it might be made a record, and he thereby debarred of making additions to it which was accordingly done, and then I pressed to be hard, and said, Mr. Justice Bacon, I desire to keep you close to my businesse which is thus, I am in prison and having no crime laid unto my charge by those that do commit me, (as clearly appears unto your Honor by the returne, for generalls, you know better then I doe, are no charge nor crimes in Law,) and therefore according to the law I crave leave to make my exceptions against the return, & when I have done, I shall willingly submit my discourse, my cause, and my person to your Judge­ments and consciences; but I pray, heare what I can say for my selfe and my liber­ty, or if you will not command me silence, I will obey you; And then Mr. Justice Roll spoke like wise to the Lords power, and would also have staved me of from going on, but I prest still to be heard what I could say against the returne, and he prest me to keepe close unto it, and not be extravigant in medling with impertinences, but I told him, I did not know what he would judge impertinences, & therefore prest hard to be heard, telling him, if I spoke that which by Law I could not Justifie, they might the easier tript up my heales, but I assured him, I was an honorer of Magistracy, as being the chiefe meanes God had appointed to keepe the world in order, and therefore I was resolved to speak with all honour & respect both unto their office and persons; so I had leave granted to go on, and having my plea in a readinesse, writ, I put on my spectacles & held it before me as the Lawyers do there Briefes, and begun, and said as was contained in my paper which I shall give you, as I had pend it before I came to the barre, though I confes I had many bickering interruptions by both the Iudges, which in the best manner my memory will serve me, I shall note in the Magent, as I goe on with my discourse, which thus followeth.

Mr. Justice Bacon, I doe ingeniously confesse, that I judge Universall safety to be above all Law, and that it is the ouldest Law of any in the Kingdom, and there­fore [Page 5]I shall not dispute, in the least, the Parliaments irregular actions, that they were necessitated too, for common preservation in the height of the Warres, but the Warres being ended, as they themselves declare they are, (in their late Declaration against the Scotch Commissioners) and thereby the affaires of the Kingdome reduced into a more peaceable and hopefull condition then hereto­fore; wherefore I may now groundedly from the full streame of all their Decla­rations, and promises; expect, challenge, and looke for the absolute benefit of the Law, and the common justice of England, in the ordinary courts of Justice thereof; which they have declared, and promised they will not now enterrupt, (See their Declaration of the 17. of April, 1646. 2 Part. Book Declam. pag. 879 and their Ordinance, of none addresses to the King, in Ianuary last, where they promise the people, though they lay the King aside, yet they will notwithstan­ding governe them by the Law, and not to interrupt the ordinary course of Ju­stice, in the ordinary courts thereof; And therefore Mr. Justice Bacon, I am not a little glad that I stand before you at this Barre of Justice, which is boun­ded by the Law (where I never was before) for seeing that the great Judge of all the world, Stiles himselfe to be a God of judgement, Esa. 30.18. and fur­ther saith of himselfe, That I the Lord love judgement and hate robbery for burnt offerings. Esai. 61.8. and therefore layes his command upon Judges, those gods upon earth, Psal. 82.6. That they shall defend the Poore and Father­lesse, and doe justice to the afflicted and needy, and deliver them out of the hands of those that are to strong and mighty for thim; and that they shall judge righteously betwixt a man and his brother, & his neighbour, in justifying of the righ­teous, and condemning of the wicked, without wresting judgement, or respecting persons, but that with judgement they shall beare the small as well as the great; and above all, that the Judges shall not be afraid of the face of man; for saith he, ye Judge not for man, but for the Lord, who is with yon in judgement; and therefore (saith he) take heed and dee it, for there is no ini­quitie with the Lord, nor respect of persons, nor taking Exod. 18 21. & 23.2.6.8. Deut. 1.16.17. & ch. 16.19. & 25.1. & 2 Chro. 19.6.7. of gifts.

And as God is thus delighted in doing Justice, and Judgement, so on the contrary side, he hath declared, he asmuch abhorres those that turne Judgement into wormwoode and ganle, and leaves of righteousnesse in the earth, and commits mighty sinnes in afflicting the just, in taking of bribes, and turning aside the poore in the gate, from their right. Esa. 1.23.24. & Jer. 5.28.29. & 22.16.17.18. & Amos 5.12. & 6 12, 14. Mic. 3.9.11. & Zek. 8.16, 17.

And that, Sir, which adds unto my gladnesse is this, that now I stand not before Arbitrary Judges, which judge themselves bounded by no law, or rules, either of God or man, but are left loose unto the reines of their depraved, cor­rupt [Page 6]lusts and wills; by vertue of which, I have not a little beene tossed and tumbled from Gacle to Gaole, and not for some few houres, dayes, weekes or Moneths; but for some yeares: without having any legall crime laid to my charge, or ever been brought out unto any Legall triall; But Mr. Bacon, here I stand before you, who are sworne, and proper Judges of the Law, Yee of the Law of England, with that learned Lawyer, Sir Edward Coke, often stiles a Law of righteousnesse and mercy, espe­cially, to Prisoners in my case,1 Part. insti. Sect. 438. fo. 260. & 2 Part. instit. so. 42 43.46.55.56.115.186.189 190.526. & 4. Part. in­stit. so. 168. who have been almost this two yeres im­prisoned, First, By the House of Lords; and then Secondly, By the House of Commons, for nothing, as clearely ap­peares unto you by my Warrants of Commitments, which onely charge me with generals, and generalls are no charge, nor crimes in 2 Part instit. so. 52.53.315.318.591.615.616. and 1 Hart Book declar. pag. 38. 77. 201. 845. and the Votes up­on the impeachment of the 11. Members, and the Petition of right, 3 C. R. and the Act that abolished the Star-Chamber, 17. C. R. Printed in my Booke, called The Peoples Prerogative, Pag. 22. 23. 24. 25. 26. Law but if they were (as they are not) Yet those (viz. the Lords and Com­mons) that made them, were never betrusted by the Law, to be the execu­tors of the (e) Law.

And therefore, Mr. Justice Bacon, with all honourable and due respects upon your Office and persons, I desire with asmuch brevity as I can, to make my defence against both the Warrants of my commitments, and I shall crave leave to observe this Method.

First, although I grant that the House of Commons and the House of Lords, have by the Law and Custome of England, their proportionable power and in­terest in the making and repealing of Lawes: yet I do averre that neither devi­ded nor conjoyned, they are not in the least betrusted to execute the Law; but your honours, and the rest of the sworne Judges, Justices of the Peace, and the Constables, &c. are by Law betrusted to be the sole and only executors of it.

And that no Commoner of England, is to be restrained of his liberty, by Pe­tition [Page 7]or suggestion to the King, or to his Councell, unlesse it be by indictement, 5. Ed. 3. ch. 9. & 25. E. 3. ch. 4. & 37. Ed. 3 ch. 18. & 38. E. 3. ch. 9. & 42. Ed. 3. ch. 3. & 11. R. 2. ch. 6. & 2. part instit. fo. 46. and Petition of Right, and the Act that abolished the Starre-Chamber. or presentment of good and lawfull men, where such deedes be done, and no Commoner of England is to be past upon, to lose either life, limbe, liberty, or estate; but by legall Tryall by a Grand Iury, and Petty Iury of his peers or equalls, which Sir Edward Cooke calles the ancient and undoubted Birth­right of an Englishman, 4 part insti. fol. 41. before a sworne Iudge of the Law in the ordinary Courts of Justice, the proofes to be in cases of Treason, &c. by two sufficient witnesses at least, plaine and upon their Oathes, See the 14. and 29. Chap­ter of Magna Charta, and 2. part instit. fo. 29.46.50. and the Pe­tition of Right, and the Act that abolished the Starre-Chamber, and the case of the Corporation of Cambridge, Rot. Parl. 5. R. 2. Num. 45. and the notable Plea of A. B. a Citizen of London, pag. 24. and 5. part. insti. fo. 25. and 1. Ed. 6. ch. 12. and 5. and 6. E. 6. ch. 11. and 13. Eliz. ch. 1. And Mr. Iustice Bacon by Law, a Lord of the Parliament is not so much as to be of the Jury of a Commoner, as learned Sir Edward Cooke declared, 1 part. insti. sect. 234. fo. 156. and if by Law he cannot be of his Jury, much losse can he be his absolute Iury and Iudge both.

And also by the Act that abolisheth the Starre Chamber this present Parliament 17. Car. Rex. it is firmly and strongly in­acted, that all Lawes, Orders, Ordinances, Iudgements and Decrees, made in deminution of the 29. Cha. of Magna Charta, and the Lawes before recited, are and shall be null and void in Law, and holden for errour; and therefore at present to conclude this point about jurisdiction, I shall winde it up with Sir Edward Cookes words in his proeme to his 4. part institutes, viz. That the bounds of all Courts are necessa­ry to be known; for as the Body of a man is best ordered, when every particular Member exerciseth its proper duty; so the body of the Common-wealth is best governed, when every severall Court of justice exempteth his proper jurisdiction; But (saith he) if the eye, whose duty is to see, the hand to worke, the feete to go, shall usurpe, and increach one upon anothers workes, as for example, the hands or feet, the office of the eye to see, and the like; these should assuredly produce disorder and darknesse, and bring the whole body out of order, and in the end to distruction; so in the commonwealth, Justice being the main pre­server thereof, if one Court should, usurp or incroach upon another, it would intro­duce incertainty; subvert Iustice, and bring all things in the end to confusion.

But Sir, I shall at present in this place, spare the full opening of my plea, in this particular, and reserve it to the place most fit for it.

And therefore I shall infist upon the 2 part of my plea, which is, that the mat­ter [Page 8]and forme of my Warants of commitments are illegall, the legality of which ought, as Sir Edward Coke declares in his 2. part instit. (which is published by the present House of Commons for good law to the Kingdom, as appeares fol. ult.) who therein fol. 52.590.591. expressely saith, 5. things are essentiall in Law, to the making of a commitment lawfull, viz. 1. That is be by dur Processe or proceeding in Law. 2. That he or they that do commit have lawfull authority. 3. That this warrant or mittimus be lawfull, and that must be in writing under his hand and Seale. 4. The cause must be contained in the Warant or Mittimus, and that not in generall termes, but in particular, as for treason, then for what particular Treason; and of for fellony, then for what particular felony; and if for misde­meanours, then for what particular misdemeanour. 5. The Mittimus contai­ning a lawfull cause, must also have a lawfull conclusion: viz. and him safely to keep untill he be delivered by due course of Law, and not untill the party com­mitting please, or doth further order, or for 7. yeares; Now Mr. Justice Bacon, all and every of these particulars I doe averre, is wanting in both my Commit­ments. For, first, there was no due Processe of Law against me, no Bill filed, or Indictment preferred, nor no legall complaint exhibited against me, neither did I see any legall prosecutor, before I was originally committed, no, nor not to this present houre, although I have been almost two yeares in Prison; First, in Newgate; and then secondly in the Tower devorsed from my wife, debarred of my friends, deprived of pen, Inck and paper.

But I desire to cease this at present, and go on to the main things. And there­fore 2. I aver that by the known Law of this Land, neither of the Speakers of ei­ther House, nor neither House themselves, have the least shaddow or colour by any declared and known Law of England, to commit the meanest Commoner of England (that is not one of there members) to prison, either for treason the highest crime (for that is expresly to be tryed by the common Law, by people of the neighbourhood of the same condition, as appeares by the 25 Edward 3 chap. 2. and 1. & 2. Phillip & Mary Chap. 10.) yea, and it lyes not in the whole Parliaments power to punish any man, for any crimes which they shall call trea­sons, but what is cleerly declared, and fully expressed to be treason by the statute the 25 Edward 3 Chap. a as appeares by 1 H. 4 Chap 10. and the 1 M. Chap 1. Or for breach of the peace, although it be in affronting, beating or wounding of any Parliament man, (for that is expresly ta be tried in the Kings Bench. 5 H 4 Chap. 6. and 11 H. 6 Chap. 11) Yee although a sherife by law, is to pay 100 l. to the King, and to suffer a Years Imprisonment, &c. without Baile or mainprise; for every false returne of a Knight of the Shire, that he makes, yet by Law, neither Houses are to be Judges in this very businesse, so immediately concerning the House of Commons, but it shall be examined and tryed before the Justices of As­sises in the Sessions of Assise, 8. H. 6. Chap. 7. & 23. H. 6. Chap. 15. yea the Parl. or the House of Commons, are not to punish those that will not pay them their wages; for their service done in the Parl but the refusers are to be punished by the legall administrators of the Law in the or­dinarte Courts of Iustice, 23. H. 6, Chap. 11.

Now Sir, if the Parliament, or the two Houses either conjoyned or divided, can­not exercise executive Justice in these things so nighly concerning themselves, much less in things more remote, as my case is, who if I were guilty of the thing layd unto my Charge, yet they are only and alone tryable and punishable at the Com­mon Law, and not in an arbitrary uncertain way in either or both Houses, the rules of which certainly no man in heaven or earth knoweth; and saith that worthiest of English Lawyers Sir Edward Cook, in the Proem to the third part of his Institutes: It is a miserable servitude, or slavery, where the Law is uncertain or unknown.

And I know, you know, it is a received Maxim in Law, that the Parliament is not to medle with judging or punishing that which appertains and belongs to the Com­mon Law, but my pretended crimes have their punishments appointed by the Com­mon Law, and are there only to be tryed and punished, and therefore in the least be­longs not unto the Parliaments Cognisance or Jurisdiction: Nay, the Parliament men themselves, for Treason, Felony and breach of the Peace, are not priviledged in the least from tryals at Common Law, as appears by the fourth part Institutes, fol. 25. and the Lords and Commons confess the same in their Declarations, 1. part pag. 48. 278. The Common Law of England, which is right reason (or as Sir Ed­ward Cook stiles it, the absolute perfection of reason, 2 part Instit. fol. 179.) ha­teth all partiality or faction in tryals, which would unavoydably be, if the Law­makers should in any case be the Law-executioners; and besides the legal benefit of final appeals to the high Court of Parliament, (which I judg in Law to be the whole and intire Parliament and not a single House) would be hereby totally destroyed; for if they should be impowered by Law to be Executers of it, and should (as it is possible they may) do me wrong & injustice, I am thereby, by power, destroyd with out remedy, which the Law abhors; and therefore the wisdom and reason of the Law is such to betrust Judges that rationally are liable to an account in full Parliament, and them only to be sole Executors and Dispensers of the Law betwixt party and party; and not to betrust the whole Parliament, or any part of it, with the execu­ting of the Laws, but only to betrust them, as their fittest work, with a power to repeal those Laws that are amiss, and to establish and make better in their places. But the Laws, while they remain Laws and unrepealed, are as binding by Law to themselves, as the meanest men in England, and they have no priviledg of exempti­on from them, saving in freedom of speech within their respective Houses, (for which they have an act of Parliament to indempnifie them, as appears by the 4. H. 8. ch. 8.) and freedom from arrests for them and their servants &c. during the sitting of Parli­ament, which the Law supposeth not to be long; much less seven years, (which is a destruction to our fundamental rights, viz. Annual Parliaments (or at least An­nual Elections) as appears by the 4. Edw. 3. cha. 14. & 36. Ed. 3. ch. 10. both which are confirmed this present Parliament by the triennial act in (16. Car. Rex) and yet if any Parliament-mans servant be imprisoned, the House of Commons them­selves by Law cannot deliver him, but it must be by a Writ out of Chancery, and the member must make oath, that the party for whom the Writ of priviledg is prayed [Page 10]for, was his servant at the time of the arrest made; all which appears in the Case of one Mr Hall, the 22. of Feb. 18. Eliz. whose servant being arrested and impri­soned, a Committee of the House reported to the House, they could find no presi­dents for the delivery of him, but in the way before mentioned, whereupon Mr Hall was appointed by the House to go to the Lord Keeper, and to do accordingly.

And if they cannot deliver one that belongs to themselves, and priviledged by the Law of Parliament, (but not by the known & declared Law of the Land) nor punish him themselves, that in the execution of the Common Law of England broke their priviledges, much less in Reason and Justice can they commit or release one that is far remote from them, and doth not by priviledg belong unto them, the last of which is my present case; and therefore no colour in Law hath the House of Commons to commit me to prison.

And as for the House of Lords, the Petition of Right expresly saith, That no man ought to be adjudged to death &c. but by the established Laws of the Land; and the express established Law of the Land is, That no Freeman shall be taken, or im­prisoned, or be deseised of his freehold, or liberties, or free customs, or be out-lawed, or exiled, nor condemned, or any otherwise destroyed, but by the lawful judgment of his Peers, viz a Jury of his Equals, of the same neighbourhood where the crime is committed (being brought in to answer by due process of Law, by Indictment, Pre­sentment, or Writ original according to the course of Common Law) but the Lords are none of my Peers or Equals, and therefore are none of my legal Judges, nor have not the least Jurisdiction (in any case whatsoever) in the world over me.

And though they should have a thousand presidents, to shew they have exercised Jurisdiction in the like case of mine, they are worth nothing, because they are all and every of them against the 29 Chap. of Magna Charta; and are therefore ex­presly declared by the Statute that abolished the Star Chamber, 17. Car. Rex, this present Parliament, to be null and voyd in Law; and to be holden for Errors and false Judgments. And as for presidents against the Lords and Commons Jurisdicti­on in my particular case, one president against them is of more consequence then a thousand for them, and the reason is evident, because, as Sir Edward Cook often declares, all Courts of Judicature are bottomed upon the Law of the Land: and it cannot be supposed that any Court can be miscognizant or ignorant of its proper Jurisdiction. And for the Lords, they have confessed in the 4. of Edw. 3. Rot. Parl. 2. in the case of Sir Simon De Berisford, that it is against the Law for Peers to try Commoners, and have promised and enacted (or at least ordained) that they nei­ther shall, nor will do the like again, though that occasion were superlative, viz. about the absolute murther of King Edward the second. And

Secondly, although the Maior &c. of the Corporation of Cambridg were, by the Kings Writ out of Chancery, summoned before King Richard the second in full Parliament, and there impeached of horrible Treason, committed and acted in levying War against their soveraign Lord and King, and being expresly within the Statute of Treasons made in the 25 of Edward the 3. Cha. 2. And though they [Page 11]surrendred up the Charters of Cambridg in open Parliament, unto the will and pleasure of the King, as forfeited into his hands by their Treason and Rebellion, yet as to the point of Treason they by their Councel expresly pleaded, that the King and his Lords assembled in Parliament had no Cognizance or Jurisdiction there to medle with Treasons committed by them, and saith the Record, (which under the Register or Record Keepers hand of the Tower I have to shew unto your Honor, if you please to have it read) they alledged divers reasons therefore, and the King and the Lords by their silence allowed of their plea as good in Law, and let them go without any punishment there, for their notorious Treasons, as appeareth Rot. Parl. 5. Rich. 2. membrana: 9. num. 45.58, 59. which is supposed in reason they would never have done, if their own consciences and knowledg had not told them, that by Law they had not the least Jurisdiction in the world over Commoners in any case whatsoever: For if not in Treason the highest, then much less in misdemea­nors the inferiorest (which is the most that ever they layd to my charge.)

And if the King and Lords have not Jurisdiction over Commoners, much less the Lords without the King, and much less that House of Lords that hath layd the King, their fountain of power and honor, aside, as unfit to be addressed unto any more, (and yet have not essentially or avowedly altered the Government of the King­dom;) seeing by their Writ of summons and all their own Declarations, they own nor challenge no power unto themselves but what they derive from him, and therefore by their own principles, and by the Law it self, they have unpowered themselves and totally overthrown and destroyed their Jurisdiction, and now can­not legally or rationally be called a Court of Justice or a House of Parliament in any sence, as clearly appears by the 4 part Instit. chapt. High Court of Parliament fo. 1.366.46. the King being in Law, as Sir Edward Cook there declares, the head, the beginning, and the ending of the Parliament; and in reason it is impossible, where there is no primitive, there should be any derivative: and therefore I do positively conclude, that the Lords have both by Law and Reason unpowered themselves, and destroyed their House from being a House in any sence, and there­fore have not the least shadow or colour of Jurisdiction over me, or any Commoner of England.

And besides I find in the time of this present Parliament many Presidents of the House of Commons, in putting out their ex­traordinary & necessitated power to redeem and rescue the Commons of England out of the devouring paws of the Lords illegal and usurpedHere Judg Bacon interrupted me, and told me they could not suffer the Lords to be arraigned before them in that manner that I did, and therefore pressed me to cease all such expressi­ons, unto which I replied, Mr Ju­stice Bacon I cannot make my legal defence for my self, unless I speak a­gainst the non-Jurisdiction of the Lords, but to shew my respect to you, I shall avoyd all harsh words as much as the weightiness of my busi­ness will suffer; and therefore Mr Justice Bacon, I humbly intreat you I may be suffered to go on, and then when I have done, pass your Judgment upon my defence; so I went on. Jurisdiction over them, as appears, First in Colonel Edward King of Lincoln­shire, committed by the Lords to the Fleet, by the power and interest of his then pro­fessed adversarie the Lord Willoughby of Parham, and upon his appeal to the House of Commons, in high affront to the Lords [Page 12]pretended Jurisdiction, they released him out of the Fleet about the year 1644.

Secondly Captain Macy belonging to Colonel Manwaring of the City of Lon­don, being upon his guard at the Works, seised upon divers letters of the Scotch Commissioners, and broke them open, a­bout which the Commissioners grievously complained to the Lords, who thereupon clapt the said Captain by the heels in the Fleet, and my self with divers others being Solicitors for the Captain to the House of Commons, they honorably to him, and in high contempt of the Lords usurpations delivered him out of prison about the year 1645. and were upon de­bate to give him a large sum of money for his unjust sufferings.

Thirdly, upon the Lords committing and censuring of me, I appealed to the House of Commons, and they received my Appeal, and ordered me my liberty De die in diem, to follow my Appeal, which in my understanding, is in Law a super­sedias both to their Commitment and Judgment.

Fourthly, Mr Richard Overton, who affronted the Lords as much as any man that ever came before them, and protested to their faces against their Jurisdiction over Commoners, and appealed to the House of Commons for Justice against them, and after that appealed to all the Commons of England, and particularly to the General and the whole Army; and yet notwithstanding the Lords approved of his protestation &c. against them, by delivering him by their special order out of the prison of Newgate, without over-ruling him, or punishing him, or his stooping to them.

Fifthly, his Wife and his brother Thomas Overton, walking in some measure in his steps, were justified therein by the House of Commons, in receiving their Appeals; yea and by the Lords themselves, by delivering them without any pu­nishment or judgment out of prison, and without any their stooping or submitting to them. Sixthly, these very proceedings were the case of Mr William Larner Book-seller, his brother and maid; so that laying all the premises together, it is un­deniably evident, that the present House of Lords have not the least Jurisdiction in the world over me or the meanest Com­moner of England in any case whatsoever; (for if not in Treason the highest, much less in Misdemeanors the lowest); and therefore all their fines uponHere I was necessitated, by reason of the Judges often falling foul upon me, to express my self in general words, in this manner, and therefore all their fines upon any of the Com­mons of England, for not obeying their Warrants or Orders, in order to tryals before them, and refusing to kneel at their Bat in contempt of their Jurisdiction, are illegal, and null and voyd in Law, and all those Goalers, Officers or Ministers, that put them in execution, are subject in Law to make the party molested sa­tisfaction for their wrongful molesta­tion. Sir John Maynard, Sir John Gayer, Alderman Adams, Alderman Langham, and Alder­man Bunce, for refusing to kneel at their Bar, are illegal, and voyd and null in law and reason both, for all the Lords proceed­ings [Page 13]with them from first to last, are coram non Judice, and the Lieutenant of the Tower &c. liable at Law to make them satisfaction for his unwarrantable executing of their illegal and unbinding Orders and Warrants upon them: And indeed, to speak the truth of the arbitrary and tyrannical proceedings of the House of Lords, they are so illegal and irrational,Here again, the Judges interrupted me, and told me, they must not hear such language of the Lords, and ther­fore prest me to keep close to my ex­ceptions against the return, or else they could not let me go on; so af­ter I had expostulated it pretty well with them, and being in an extream longing desire to come to the main pinch of the business, very well knowing I had a smooth, but yet a sharp sting for them in the conclusi­on; I told them at their commands I would at present so far obey them, as skip over part of my matter, and did it to the next line where you shall find this mark ☞ that to set them up in the way they have lately gone in is to pull down all the Judicatures of the Kingdom, and to destroy all the Laws of the Land (in the destruction of which there is a perfect levelling of meum & tuum which is totolly overthrown thereby) and it is also a re-edifying of an arbitrary, tyranni­cal, unlimited and unbounded Government (worse then Empsons and Dudleys, Straf­fords or Canterburies, for which yet they all lost their lives) many stories higher then ever the Star-Chamber, High Commission, or Councel Table were, (which yet were arbitrary enough, as appears by the Acts made 17. Car. Rex, for abolishing them) and indeed it behoves all the rich men of England well to look about them in reference to the Lords: For if a company of men, by vertue of their being made Peers by the King or his will and prerogative, may at their pleasure and wills, without all shadow of Law or Justice, fine one Commoner of England more then he either is or ever was worth (as they have done me, upon whom they have set a fine of 4000 l.) by the same rule of right reason and Justice, they may, at their pleasures, rob all the rich men of England, by Fines, of all that ever they are worth; yea, and by the same reason and justice, share it and divide it amongst themselves, and so have better places abundantly of it then ever the Earl of Dorset had, by being a privy Counsellor and Judg of the Star-Chamber, which yet, if some that well knew him, belie him not, was worth many thousand pounds, per annum, to him in an underhand way; and besides, if the Lords can persevere, and hold on, as they have lately begun, the King was very unwise to call a Parliament, and of, and from them to seek for subsidies, seeing the workman­ship of his own hands, (the Lords, by vertue of their having his prerogative stamp upon them,) is able to fine by their wills, a Commoner of England more then he is worth, and therefore may much more legally fine all the Commoners of England at their pleasure, a quarter, half; three quarters, or all they are worth, and so fill the [Page 14]Kings (or their own) Cofers at their pleasure full, and get in to them all the money of England; therefore let rich men look about them in this particular, and in a se­cond regard also, more dangerous then this; forasmuch as it concerns life, let all men, I say, look well about them, for I am confident of this, that I suffer so much Bar­barism from Cromwel, and his Creatures, who are not willing to come to a tryal with me, for the Leiutenant of the Tower hath already denyed me the benefit of the Law of England, in not obeying my first Habeas Corpus, and would not suffer me without fresh strugling to come to a legal tryal, and thereby have before the sun convicted themselves of wickedness and unrighteous dealing with me, for saith Christ, John 3.20. Every one that doth evil hateth the light, neither commeth to the light, lest his deeds should be reproved or discovered; I say, I am confident I suf­fer so much from Cromwel &c. for opposing and throwing down the Lords Ty­ranny, which he did, and still (is evident) he doth intend to make the arbitrary (yet seeming legal) ax to chop off the head of every man in England, he hath a mind to destroy any otherwise then by wilful murder, as he did Richard Arnal at Ware: and having been under God, the chief Instrument to break him of that damnable and wicked design, he and his Creatures, therefore are as mad at me as so many mad men, &c. Although they have done so much already in destroying the Law, and setting up Arbitrary Tyranny, that I will make it good with my life, divers of them, viz. of the House of Lords, &c. better deserve Tower hill, therefore, then ever Srafford did; but what a company of foolish, silly Creatures are Cromwel, and his confede­rate Grandees, who would pretend to give those Commoners of England a tryal ac­cording to Law and Justice, whose lives they would take away by a tryal before the Lords,Here I began, and said, Sir, what an errational thing is it for the Lords to go about at their bar to try Com­moners for their lives, when as men that know the Law, &c. when as men that know the Law of England, fully knows, that if the present Lords were a true House of Lords, (as before I have fully proved they are not) yet they were not able legally to try one of themselves, for though the body of their House (in case they were twelve or eighteen, and under they cannot be) should be in the nature of a grand Jury, and petty Jury, and so the Judges of matter of Fact, yet they must have a Judg of matter of Law too, and that must be a Lord high Steward, which they neither have, nor are able legally to make, and therefore have no colour of power in Law to try one of themselves, much less a Commoner, that is none of their Peer or equal, whom the Law hath again and again expresly prohibited them to meddle with; but enough for the Lords at present, and now two things more distinctly for the House of Commons.

First, admit, they had a Jurisdiction in executing the Law, (which I have before already fully proved they have not) yet all Courts of Justice established by Law in England, are bound and tyed to Judg no man but by witnesses, sworn according to the Law, they being the evidence to the Jury and Judg, 3. part instit. fol. 163. But [Page 15]they never put Masterson, my accuser, to his oath, in his Information he delivered against me, (although he were but a single informer, never any man of all the large company besides himself appearing against me,) and therefore no shadow or co­lour for the House of Commons to adjudg or condemn me to prison thereupon, seeing no man whatsoever can be condemned by any Court in England without wit­nesses, sworn against him according to Law; but if he had delivered what he did deliver against me upon his oath, it had been never the legaller, because they have no power, nor never had to administer an oath, and therefore cannot by the Law of England in the least pretend any Jurisdiction over me in cases Criminal, or any power at all to commit me to prison; for where the Court hath no authority to hold plea of the Cause, there all proceedings are Coram non Judice, and there per­jury (though Masterson had sworn never so falsly) cannot be committed; and so against all reason, a man is left at liberty to say without fear of punishment what he please, because it being not in a Judicial Proceeding, no perjury can be commit­ted by Law; and that the House of Commons hath no power to administer an oath is evident, in that the Law gives them none, nor they never practised it; and there­fore, if they would now put it in use, they cannot legally of themselves now begin to do it: For as learned Cook saith in his Chapter of perjury, 3. part. instit. fol. 165. An oath is an affirmation or denyal of any thing lawful and honest, before one or more, that have authority to give the same for advancement of truth and right, calling Almighty God, the searcher of all hearts, to witness that his Testi­mony is true, so that (saith he) an oath is so sacred, and so deeply concerning the Consciences of Christian men, as the same cannot be administred to any, unless the same be allowed by the Common Law, or by some Act of Parliament; neither can any oath (saith he) allowed by the Common Law, or by Act of Parliament, be al­tered, but by Act of Parliament, no nor a new oath raised, and therefore he declares it to be a high contempt of the Law of England, for any man to administer an oath without warrant of Law, and to be punished by fine and imprisonment, and of allAnd here I skipped seven or eight lines to this mark ☞ oaths in use in England: This oath of Confirma­tion, for deciding and ending of Controver­sies, is the only and alone warrantable oath by the Law of God, Mat. 5.34, 35, 36, 37. and Heb. 6.16, 17. James 5.12. And as for other oaths, I know no use in the world of them, for those men that do not love things that are excellent, for the excellency inherent in them, will never love nor honor them for oaths sake.) But ☞ the House of Commons wanting a legal power to administer an oath, it is a clear demonstration and proof, that they have no power or Jurisdiction at all in Law, to decide Controversies betwixt a man and his neighbour, especially in times of peace, when all the ordinary Courts of Justice are open, and therefore have no shadow or colour in Law to adjudg or commit any man that is not a Member of them to prison.

And inBut all this president to avoid dis­putes I skipt over, for the Judges prest that the House of Commons owned the Lords Jurisdiction in some cases, to which I answered, I owned it as well as they, and told them I was wil­ling to give the Lords as much Juris­diction without dispute as they desi­red, to Judg, condemn and destroy one another, so they would not med­dle with me, nor my fellow Commo­ners: and I was confident, if the Lords distinctly, as a single House, had any Jurisdiction at all in Law, it was but over themselves, and as much of which as they please to take, I am willing without dispute to grant them. the second place, That the House of Commons have no judgment or Jurisdiction by Law, clearly appears by their own confession in the roul of Parlia­liament, in the 1. H. 4. Membr. 14. Num. 79. which this present April, I had under Mr. William Riley, the Record-Keepers hand, which at the Bar I am ready to pro­duce, and which thus in English verbatim, followeth.

The third day of November the Com­mons made their Protestation, in manner, as they made it at the beginning of the Parliament, and over and above declare to the King, That forasmuch as the Judg­ment of Parliament belongs only to the King, and to the Lords, and not to the Commons, unless it please the King, of his grace especially shewed them, that the said Iudgment was for their ease, and no re­cord shall be made in Parliament against the said Commons, that they are, or shall be, parties to any judgments given, or to be given hereafter in Parliament. To which was answered, by the Archbishop of Canterbury, by the Kings command, that the said Commons shall be Petitioners and Demanders, and that the King, and the Lords, at all times, have had, and shall have by right the Iudgment in Parliament; in manner, as the said Commons have shewed, unless it be in Statute affairs, or in grants and subsidies, or in such things and affairs for common profit of the Kings Realms, the King will have their especial advice and assent, and that this Order be kept in all times to come. And so much at present for the 2d essential of a warrant.

And now I come to give a touch, and but a touch only upon the third ingredient to make a mittimus lawful, and that is, that it be under hand and seal, expressing the office and place of him which makes it, unless the party be committed in the sight of the Judg, sitting in open Court, but there is no seal to mine, and therefore it is illegal, for I was not in the view of my pretended Judges when they committed me.

But Mr. Justice Bacon, I come to the fourth thing, upon which, at present, as one of the principal essentials, I shall stifflly stand, which is, That the warrants of my Commitments, both from Lords and Commons now returned before you are illegal, there being nothing but generals laid unto my charge by them, which is no charge nor crime in Law; and therefore, both my warrants wanting a legal and a particu­lar cause in them, there is no colour in Law to keep my body in prison by vertue of them. Now to prove that Generals are no crimes nor charges in Law, though the dayly and continual practises of all the Courts of Iustice in England prove it, yet for illustration sake. I shall crave leave to alledg some legal Authorities. And in the [Page 17]First place, I shall begin with the Judgement of Sir Edward Cooke upon the Statute of breaking of prisons, made 1 Ed. 2. who in his 2. part institutes fo. 591. expresly saith, seeing the weight of this businesse touching this point, to make an escape either in the party or in the Gealours Fellony dependeth upon the lawfulnesse of the Mittimus, it will be necessary to say somwhat hereof. First, it must be in writing, in the name, and under the seale of him that makes the same, expressing his Office, place, and authority; by force whereof he makes the Mittimus, and it is to be directed to the Goaler, or Keeper of the Goale or Prison. Secondly, it must containe the cause (as it expresly appeareth by this Act,25. Ed. 3. Coran. 134. and 32. Ed. 3. Coram. 248. and 9. Ed. 4. fol. 52. unlesse the cause for which he was taken, &c.) but not so certainly as an indictment ought, and yet with such convenient certainty, as it may appeare judicially, that the offence requires such a judgement; as for High-Treason, to wit, AGAINST THE PERSON OF OVR LORD THE KING; or for the counterfetting of the money of our Lord the King, or for petty Treason; namely, for the death of such a one, being his Master, or for Fellony to wit, for the death of such a one, &c. or for blurgary, or robbery, &c. or for Fellony; for stealing of a horse, &c. or the like, so as it may in such a generality appeare judicially, that the offence required such a judgement, and he there further goes on & gives divers ar­guments & reasons, & scites abundance of law authorities to prove, that a parti­cular cause, ought by Law to be expressed in every Mittimus or Warrant of Commitment.

My second proofe to prove generalls, are no charge in Law, is the deliberate and resolved opinion of all the Judges of England in the 3, yeare of King Iames, (which was a time of full peace; wherein the law had its free currant, without the threates of Marciall or the checks of Prerogative arbitrary power, and there­fore the Judgement is of more weight) who in their answer to the 22. object, on or article of Archbishop Bancroft, and to the whole Clergy of England, hath those very words, we do not, neither will we in any wise impugne the Ecclesiasti­call authority in any thing that appertaineth unto it, but if any by the Ecclesia­sticall authority, commit any man to prison, upon complaint unto us that he is imprisoned without just cause, we are to send to have the body, and to be cer­tified the cause, and if they will not certifie unto us the particular cause, but ge­nerally without expressing any particular cause whereby it may appeare unto as to be matter of ecclesiasticall cognizance, and his imprisonment be just then we do and ought to deliver him and this (say the Judges) is the Clergies [...]ault and not ours, and although some of us have dealt with them to make some such particular Certificate to us, whereby we may be able to judge upon it as by Law they ought to do, yet they will by no meanes do it, and therefore their errour is the cause of the thing they complaine of, and no fault in us, for if we see not a just cause of the parties imprisonment by them, then we ought and are [Page 16] [...] [Page 17] [...] [Page 18]bound by Oath to deliver him, and sutable to this is their answer to the Clergies 21. Article, which Articles and answers are recorded in 2. part instit. fo. 614.615.616. My 3. proofe to prove that Generalls are no crimes in Law, is out of the 4. part instit. fo. 39. where the Lord Cooke expresly saith, That a man by law can­not be attainted of High-Treason, unlesse the offence be in Law high treason (for where there is no law there can be no transgression, Rom. 4.15.) he ought not to be attainted by generall words of high treason by authority of Parlia­ment (as sometime hath been used) but the high treason ought to be specially expressed, seeing that the Court of Parliament is the highest and most ho­nourablest Court of Justice, and ought (as hath been said) to give example to inferiour Courts. And besides, all this seemes to me, to be clearly and evi­dently held forth by those 2. notable statutes, viz. The Petition of Right, 3. Car. Rex, & the Act that abolished the Starre-Chamber in 17. Car. Rex, So that from all that hath been said to this 4. head alone, I am confident, I may in Law chal­lenge my liberty and freedom from your honours hands without bayle, as my undoubted and unquestionable right by Law, and which you neither can, nor ought by Law to denye unto me, seeing that by both the Warrants of my Com­mitments, I am rendred a just and an innocent man, there being by them not the least pretence of a legall crim: laid unto my Charge, for Generalls is (as is already ful­ly proved) no Charge nor crimes in Law; And also hath been so adjudged and de­clared by the present two Houses of Parliament, as if it were requisite I could particuler [...]se fully unto you, & 3. instances at present, I shall only give you, viz. the 5. Members, and the Lord Kimbolton, and the Lord Major Pennington, and the late 11. Members, whose cases you may reade 1 part. Booke Decler. pag. 38. 77. 201. 845. but being I am here principally to pleade Law, and not Ordinances, I shall forbeare to inlarge my selfe thereupon, and yet before I conclude, shall with your Honours leave, speake a few words, to the fift and last ingredient to make a Mittimus lawfull.

Viz. That it have a legall conclusion, in these words, and him safely to keepe, un­till he be delivered by due course of Law, and not for 7. yeares, nor untill the party committing doth further order, which legall conclusion is wanting in both my Commitments, and therefore illegall.

Which most desperate Cōmitments being illegall in all the 5 essentialls, I may call and doe call them impoysoned Arrowes, shot through the principall vitall of Englands liberty; (but here both the Judges interrupted me to the purpose, and would not let me goe on with my Retorick, so that I was necessitated for leare I should not be suffered to plead my conclusion, which I looked upon to be the strength of all my work, & therefore was forced to skip over divers leaves to the objection,) and the cheife authors of them not deserving, to be named or stiled the patrons of their Country, no not so much as well wishers to the liber­ties [Page 19]thereof, for here is Law, equitie, and Justice dethroned, and absolute will, or blinde lust challinging the proper imperiall seate of England, the Commitments drawes the black line over the name of Englands Freedom, yea, the line of con­fusion upon the Kingdom, if the Parliament, or both Houses, shall thus actual­ly avow, that they are to governe loose without the restraint of any lawes (mock­ing the Kingdome thereby, in making Judges to execute the Law) yea, and absolved from all Laws of government, as though it were in their power to dis­pose of the persons of all the people of England at there will and pleasure, the granting or challenging of which, can be no lesse, then the absolute distroying of all the mutuall relations and dependancy in a Kingdom, or common wealth, yea, & the levelling of all termes of destinction betwixt ruler & ruled, yea hereby the very foundation of property of meum & tuum is totally overturned, & no man can call any thing he possesseth his owne; for my person is nearer to me then my Estate, and he that at his will may dispose of my person, may much more at his will and plea­sure dispose of my Estate, And therefore Mr. Justice Bacon this manner of im­prisoning, is no better then a two edged sword, whereby the liberties of Eng­land is mortally wounded, if not actually cut in peeces, and the Prime Au­thors of these Commitments in the eye of God, and all rationall men, deserve the highest & exempliariest, of punishments, in thus subverting the very bases and foundations of government, & so unavoydably imbroyling the Kingdom a new in Warrs, to preserve themselves from totall vassellage or distruction; especially, considering that they themselves have done these things, after they themselves have chopt off the heads of Straford and Canterbury for the very same things: and therefore by the strength of reason (if there were no other law in being) they deserve their own executed punishment. Againe, the Law never instituted a Goale for punishment and destruction, but for a place of safe keeping of a criminall person, that could find no better bayle, where he ought to be kept and intreated with all humanitie, civillity and respect, till he be brought to a speedy tryall; all Goales in England by Law being to be delive­red 3. times a yeare at least, or more oftener if neede require.1 part instit. lib. 3. ch. 7. Sect. 438. fo. 260. and 2. part. instit. fo. 42.43.115.186.189.315. and 3. E. 1. ch. 25. But I have been almost two yeares in prison, and never to this houre had a­ny legall Crime laid unto my Charge, nor can­not be suffered to come to a legall Tryall, though to my extraordinary expences, toyle, hazard, and trouble, I have indeavoured it withall my might; but cannot be ad­mitted to have any benifit of the law which I do averre is the highest of tiranny, being kept in Goale in a languishing condition worse then anysuddaine death, being ever dying and yet not dead.

And therefore I do positively averre, that the Arbitratiness of the Conclusions [Page 20]of my Commitmants, is that wich strikes the Fatall Stroke through the heart Roote of Freedome, and Justice; yea it overturnes overturnes the Founda­tions of the Kingdome, this very sivgle act, if drawne into president hath a semi­nall vertue in it, whereby is contained in its selfe, all the distinct species of inju­stice, whereof the Sun was ever yet spectator.

Yes, this arbitrary Commitment doth Ipse facto enervate, yea eva­nuate, & null all established lawes of the land, & renders all rowles & records, no better then waist papers, fit for nothing but to light Tobacco Pipes; for to what purpose serves Magna Charta, the Petition of right, and other wholsom Lawes; which say, no man shall be imprisoned, past upon &c. or any other wayes destroyed, but by the Lawfull Iudgement of his equalls, or by due pro­cesse of Law, when as the rule to punish supposed or reall transgressors, shall be mens wills & lusts, as in my case by my Commitments, &c. it is, so that if 500. men shall assume and arrogate to themselves the absolute dominion over the people of the Land, then it may be England shall have 500. distixct lusts unto which they must conforme their actions.

And sure I am, that the dealings of the Lords and Commons with me, demon­strated by their orders of committments, flowes not from any power given them, either by the Law of the Laud, nor from the Indentures betwixt them and their chu­sers, no nor yet from any word or clause in the Writ of there summons or Electi­ons; and therefore fourthly, it must flow from there CROOKED IVSTS, DE­PRAVED VVILLS, and ARBITRARY PLEASVRES, by which with naked faces they declare themselves to be limitted by no boundary, unac­countable and obnoxius to no censures for any possible abuse whatsoever that can becommitted by them, for by these committments they evidently declare there is no rule whereby to measure the rectitude or obliquitie, justice or in­justice of their Government and actions, and by consequence they are under an impossibilitie to render an account of their wayes and doings (and so by consequence, the people of England are in the absolutest road way of perfect slavery that is upon the earth) this the Parliament, or the Lords and Commons would have the World to beleive they abhord in the King, as appeares by there last declaration against him, in which they shew the reasons of their votes not to make or to receive, any addresses to, or from him, for in Page 12, they s [...]y the King hath laid a fit foundation for all tiranny, by that most de­structive maxime of his, viz. that he oweth no account of his actions to any but to God alone, but by the warrants of my cōmitments it seemes this wick­ed and heathenish Maxim, is Iudged by the makers thereof not to be to sweete a morsell for their own Pallets, though in their said declaration they judge it to sweet for the Kings, and therefore to conclude this point if this honorable Court of Justice, the Judges whereof are sworne to Judge according to the Law, and not lust, will nor pleasure, will Judge these arbitrary Committments of mine [Page 21]to be legal, then I make my humble desire unto you the Judges thereof, that you would cousen and deceive the people of the Kingdome no longer, by assum­ing unto your selves the name of Judges of the Law, but rather translate your Titles into the name of Judges of lust, will and pleasure, that so the people may expect the legall administration of the Law, no longer from you: and so I have done with the Fift, and last ingredient to a legall Mittimus. Now Mr. Justice Bacon, seeing it is objected both by you, and Mr. Justice Roll, that my Commitment from the Lords, is rather a Sentence, Judgement, or Decree, hen a bare Mittimus, and therefore being a judgement by the Lords, a higher Court, for 7. yeares imprisonment; I cannot be delivered by this Court, which be­ing inferiour to it, cannot reverse it, nor be Judges of it.

To which Mr. Justice Bacon, I answere, First, I doe not seeke unto you at present for reversement of my Sentence, which is 4000. l. fine, and perpetuall disfranchisement of the Liberties of an Englishman, as well as seven yeares im­prisonment: But I come unto you as Judges of the Law (who are sworne im­partially to doe me Law and Justice, notwithstanding any command whatsoever, by any whatsoever to the contrary,) for my personall liberty, which is my un­doubted right by Law, for any thing that judicially appeares before you, upon the Warrants of my commitments. For I have already fully proved unto you, there is not legally the least crime in the world laid unto my charge, and there­fore no rules in Law for you to send me backe againe to prison.

But secondly, I answer, that I have already proved the Lords are none of my legall Judges, and therefore all their proceedings with me from first to last, are corum non judici, Yea, even their Sentence and Commitment it selfe, for being it is against the 29. Chap. of Magna Charta, (it is void and null in Law) which expressely saith, That no Freeman shall be taken or imprisoned, or be dissesed of his Freehould, or Liberties, or free Customes, or be Outlawed, or exiled, or any otherwise destroyed, nor past upon, nor condemned by the lawfull judgement of his equals, or by the Law of the Land, which Law of the Land is expounded by the Statute of the 25. Ed. 3.4. & 37. Ed. 3.18. and Sir Ed­ward Goke in his 2. part instit. fo. 50.51. to be by due Processe of Law, viz: That none shall be taken and past upon. &c. by Petition or suggestion made to our Lord the King, or to his Counsell, undesse it be by indictment, or presentment of good and lawfull men, where such deeds be done, in due manner, or by Writ ori­ginall at the Common Law, being brought in to answere by due Processes, accor­ding to the common and olde Law of the Land, all which &c. is confirmed by the Statute that abolished the Starre-Chamber, this present Parliament, 17. C. R. and all Acts, Ordinances, Orders, Judgements and Decrees, made contra­ry thereunto, or in diminution thereof, are thereby declared, ipso facto, to be null, and voide in Law, and are to be holden for errors and false judgements, which totally barrs and overthtowes all Presidents whatsoever to the contra­ry, [Page 22]yea although the Lords had a million of them. (And excellent to this pur­pose, is Sir Edward Cookes Commentary upon the 3. Ed. 1. chap. 15 but espe­cially, his Commentary upon these words, viz. Or Commandement of the King, First, faith he, the King being a body politique, cannot command but by mat­ter of Record; for the King commands, and the Law commands, are all one, for the King must command by matter of record according unto the Law. Se­condly, When any Judiciall Act, is by Act of Parliament referred to the King, it is understood to be done in some Court of Justice, according to the Law. And the opinion of Gascoine, Chiefe Justice, is notable in this point, that the King hath committed all his power judicall to divers Courts, some in one Court, some in another, &c. and because some Courts, as the Kings Bench, are Coram Rege, and some coram Justiciariis, therefore the Act saith, by the commandernent of the King, or his Justices.

Hussey Chiefe Justice reported, that Sir John Markham said to King Ed. 4. that the King could not arrest any man for suspition of Treason, or Fellony, as any of his Subjects might, because if the King did wrong, the party could not have his action: if the King command me to arrest a man, and according­ly I doe arrest him, hee shall have his action of false imprisonment against me, albeit he was in the Kings presence; resolved by the whole Court in 16. H. 6. which authority might be a good warrant to defend his said opinion to Ed. 4.

The words of the Statute of the 1 R. 2. chap. 12. are, unlesse it be by the Writ, or other commandement of the King; and it was resolved by all the Judges of England, that the King cannot doe it by any commandement, but by Writ, or by order, or Rule of some of his Courts of Justice, where the cause dependeth.

And saith Bracton, the King can doe nothing, but what he can doe by Law; So as (saith the Lord Cooke) the command of the King, is as much as to say, as by the Kings Courts of justice; for all matters of Judicature, and procee­dings in Law, are distributed to the Courts of Justice, and the King doth judge by his Justices, 8 H. 4. fol. 19. & 24. H. 8. chap. 12. and regularly no man ought to be attached by his body, but either by proces of Law, that is, (as hath been said, by the Kings Writs, or by Indidctment, or lawfull warrant, as by many Acts of Parliament is manifestly inacted and declared, which are but expositions of Magna Charta, and all Statutes made contrary to Magna Charta, which is Lex terrae, from the making whereof untill 42 Ed. 3. are declared and inacted to be void, and therefore if this Act of Westminster 1. concerning the extrajudiciall commandement of the King bee against Magna Charta, it is void, and all resolutions of Judges concerning the cōmandement of the King, are to be understood of judiciall proceedings, a part insti. fo. 186.187.)

Therefore Mr. Justice Bacon, it is to no purpose for you to tell me, I am committed by a higher Court, and therefore you cannot legally deliver mee, [Page 23]for I aver unto you, and have already sufficiently proved it, that I am commit­mitted contrary to Law and Justice, and therefore you being Judges of the Law, and not of Presidents, grounded upon will and pleasure; You are to take notice of nothing but Law, and therefore I demand and require my liber­ty at your hands, as my undoubted right and due by Law, which you can neither in justice, honour, nor conscience deny unto me.

But admit the Lords to be a superiour Court of justice to the Kings Bench in some cases, yet if they walke beyond their bounds and limits set them by the Law, and meddle with that which by Law they have no Jurisdiction of, in that case they are no Court of Justice, either to you or me, but a company of despisers and contemners of the Law; all whose actions and decrees made and done in such cases, are but meere affronts unto the Law, and unvalid and unbinding, either to you, or me, or any other man in England; in disobedi­ence to which, they by Law are not capable of a contempt or affront, nor cannot legally punish any in such a case, either with fine or imprisonment, as for instance.

First, if a court of SESSIONS, (which is a Court in many cases by Law) questions me for my Freehould, and I give them contemptuous words for medling with that which they have no Jurisdiction of, they by Law can neither fine nor imprison me therefore.

Secondly, the same holds good in the COMMON PLEAS, which is an unquestionable administrative Court of Justice in divers cases, yet if they go about to hold plea of murder before them, if the party refuse to answere them, It is in Law no contempt of the Court, And if the Court shall therefore fine and imprison him, it is illegall, erronious, and unbinding, because in Law they have no Jurisdiction of such cases.

Thirdly, and pertinent to this purpose is BAGGS CASE, in the 11. Part of Cooks Reports, who being summoned before the Mayer of Plimoth. in open Court called him cozening Knave, and bade him come kisse, &c. For which the Mayor Disfranchised him, and it was resolved in Law, that the the Disfranchisment was illegall, and the reason of is was, because it was not according to Law, for that the Mayor in Law had no power to doe it.

Fourthly, sutable to this is the complaint of ARCHBISHOP BAN­CROFT, and the Judges answer to it, which said Archbishop in his 22. Article to the Lords of the Privie Counsell, in the 3. of King James, complaines against the Judges of the Courts of Justice in Westminster Hall, for affron­ting the actions, proceedings, and Censures of the High Commission Court, which was erected by Act of Parliament, viz. 1 Eliz. and had power by King Iames his Letters Patents to Fine, and IMPRISON, and yet as he com­plaines, (as you may read 2 Part. instit. fo. 615. & 4 Part. instit. fol. 335.) The Judges were growne to that innovating humor of late, that whereas certaine lewd persons, (two for example) one for notorious Adultery, and [Page 24]other intollerable contempts, and another for abusing of a Bishop of this Kingdome, by threatning speeches, and sundry rayling tearmes, no way to be endured, were thereupon fined and imprisoned by the High Commissio­ners, till they should enter into bonds to performe further orders of the said Court, the one was delivered by HABEAS CORPVS out of the Kings Bench, and the other by a WRIT out of the Common Pleas, and sun­dry other prohibition have been likewise awarded to His Majesties said Com­missioners upon these suggestions, that they had no authority to fine or impri­son any man, &c.

Which practices and doings the Judges in their answers thereunto, justifie to be legall, and no more then that which they are bound unto by their Oath, for that the high Commission had gone beyond the legall power of their jurisdiction, having no power by law to fine and imprison in those cases; and therefore, the Law, being the surest Sanctuary, that a man can take, and the strongest fortresse to protect the weakest of all, it ought not to be denied to the meanest man that demands it, against the greatest seeming legall oppressor, that act of violence or wrong, be­ing most hatefull of all others, when it is done by uncontinuance of justice, and there­fore that man which legally indeavours deliverance from it, ought from the judges of the Law by Magna Charta, to have it freely without sale, fully without any deniall, and speedily without delay, in which regard the aforesaid Judges, did not only justifie their forementioned legall practice, but also fall very foule up­on the Arch-Bishop &c. for taxing the Judges and Iustice of the Kingdom, confi­dently aver [...]ing, that for lesse scandalls then his, &c. in taxing the Iustice of the Kin­dow, divers have been severely punished, And Sir Edward Cooke in the 4 part of his institutes, Chap. of the high Commission Court, in causes Ecclesiasticall, fo. 331.332.333.334 335. instances divers others, that for notable Ecclesiasticall crimes, were fined and imprisoned by the high Commissioners, and upon demanding their right from the Judges of the Courts of Justice in Weslminster Hall, they were re­lieved and released by them, by the strength of those nerves and sinewes of the Law Prohibitions and Habeas Corpusses.

But above all the rest that he there mensions, Iohn Simpsons case in the 42. Eliz. is the most remarkable to my purpose, which Simpson being accused for com­mitting adultery with the Wife of Edward Fuste (over which case by Law the high Commissioners had Iurisdiction) whereupon the high Commissioners issued out there warrent to Richard Butler Constable of Aldrington in the County of Nor­thamton, for attaching and arresting of the body of the said Simpson, which in Law is an imprisonment upon the attachment of his body, and the Constable takes on Willi­am Iohnson servant of the said FƲSTE to assist him in the serving of his Warrant which warrrant the Coxstable served upon him and read it unto him, notwithstand­ing the Said SIMPSON resisted him, and in his owne dofence (shewed him) slew the the said Iohnson, that came in aide of the said Constables, for which he was as a wil­full [Page 25]murderer, Committed to Northampton Goale, and indicted before the Judge by the coroners inquest of wilfull murder, supposeing the said Warrant to Lawfull, but the matter being very mighty, the Justices of assise thought not good to proceed a­gainst him at those assises but deferred it till the next assises, at what time after this long time of deliberation, and upon conference with other judges of the law it was re­solved, that the statute of the 1 Eliz. gave no power to the high commissioners to make any warrant to arrest the body of Simpson in that case, but that they ought to have proceeded by citation, And therefore going beyond there legall power (although by the Queens letters patents, expresse authority is given to the high comissioners to send for the body of any offender, &c.) Simpson in killing the said IOHNSON, had committed no wilfull murder, but only de­fended himselfe and his liberties, and so it was found by the Jury, & he acquit­ted of murder.

From all which I observe, first, that all Iudges of all Courts of Justice in England, are bound toact within the compasse of there jurisdiction given them by Law.

2 I observe that the Iudges of any Court going beyond their legall Iurisdicti­on, may, and ought by Law to be resisted, which resistance is no contempt of the law, not punishable by it.

3 That the Iudges of the Law, are bound in duty and concience by Law to judge all causes that comes before them according to Law, which both the single or­der of the Lords, and the single order of the Commons, is inferiour, or in subor­dination unto, as well as the royall letters pattents of [...]e King or Queen, which yet those Noble Iudges according to Law, threw behind their backs, and acquit­ted the said SIMPSON of Murder, inkilling of IONHSON in his doing actions in pursuance, and by vertue of the authority of the said Letters Pattents, And therefore much more ought you to acquit and set my body at liberty without a­ny more adoe from the Lords 7. yeares imprisonment, being their imprisonment of me, though grounded upon their decree or Judgement, is contrary to the expresse declared and constant received fundamentall Lawes of England, and though di­vers men in former ages, have been so sottish or fearfull, to part with their legall Liberties to the Lords, and have stooped unto their Iudgements, Orders and Decrees, yet that is no prejudice or hinderance unto me, from the injoyment of mine, who now demands them at your hands as my right by Law.

4. And lastly, seeing as is before undeniably proved, that the King (the Major) is the primitive, and the Lords (the Minor) are but the derivative and seeing it is before also fully proved, that the Letters Pattents of the King, the primative, is not to be set in compitition with the Law, it will strongly and undeniably fol­low, that the orders of the single Lords, who are but the derivitive, cannot keepe me in prison contrary to the Law; but that they ought by you without any fur­ther delay, being illegall in themselves to be judged so by you, as well as the King [Page 26]or Queenes Letters Patents, were by your predecessours, and my body by you to be set at liberty, though it hath seemingly affronted their orders, as well as the life of the said SIMPSON, was saved by your predecessours, although he had slaine the said IOHNSON in affront of their superiours Letters Patents, and not to necessitate me for my reliefe and preservation to SIMPSONS remedy, which though bloody in it selfe, yet is justifiable by Law and reason, by which I may de­fend my liberties and life, against all those that in the executing of urjust illegall or­ders and decries would rob me of them and if in my own defence to save my life, I be necessitated and compelled to destroy him or them, that without Law would keep me in prison, and so destroy me by famine, or by sicknesse &c. his life be upon his owne score, for in such a case I am free from his Blood, and there­fore Mr. Iustice Bacon to wind up all, I shall conclude in the words of learned Sir Edward Cooke in his epilogue to the 4 part of this institutes which I read thur.

And you honourable and reverent Judges that do sit in the high tribunals and courts or s [...]ates of Justice, feare not to do right to all, and to deliver your oppinions Iustly according to the Laws: for feare is nothing but a betraying of the succors that reason should afford. And if you shall sincerely execute Justice, be assured of three things.

First, though some may maligne you, yet God will give you his blessing.

Secondly, that though thereby you may offend great men and favourites, yet you shall have the favourable kindnesse of the Almighty, and be his fa­vourites,

And lastly, that in so doing, against all scandalous complaints, and pragma­ticall devises against you, God will defend you as with a shield; for the Lord will give a blessing unto the righteous, and with his favourable kindnesse he will defend him as with a shield.

And now dear Sir, having done with my set speech, being often as before I de­clare, interrupted by both the Judges, and compelled to skip over divers remark­able things in it, as I have before also noted and declared, which in my judgement was not fairely not justly done of the Judges unto me, who ought to have given me freedom of speech,As the Lords in 1641. did give me, and the Commons in Ian. last, as you May reade in my Whip for the Lords, pag. 10. 11. 19. and then to have judged what I said; so as soone as I had done with a conge made unto them both, (though I confesse I spoke most commonly to Mr. Justice Bacon, be­cause I judged him to be the corum; or the seni­or) I said now Sir, I have done, and shall submit what I have said and pleaded unto your Judge­ments and Consciences, desiring that if you conceive the businesse to be of that weight, that it requires any more debate, that you will take the time of 2. or 3. [Page 27]seriously to consider of it: whereupon Judge Bacon asked me, if I had any coun­sell to maintain what I had said, and I told him no, neither did I need any; for I was able enough my self to do it, and did offer him not only in Law, but with my life to make it good; professing unto him, that I was very consident, that Lawyer was not in England, that durst, or would say, one quarter of that for me, that now before them I had said for my self, because my adversaries were transcendantly pocent, who by their wills and pleasures, had in some kind de­stroyed men of more power and greatnesse, then all the Lawyers at the Bar; and therefore Sir, though I am acquainted with some Lawyers, that sometimes plead at this Bar. yet peradventure, my respects and obligations may be such un­to them, that it cannot stand with honour, justice, or conscience, for me to desire them to plead my cause, seeing I am confident, they cannot do it with safety, and for me to expect that from them, or put that upon them, that in mine owne conscience I do verily believe will be their ruine in their practise and lively hoods, when I am not able in any reasonable manner to requite them, I should in my owne thoughts, render my selfe the basest and unworthiess of men.

Whereupon Mr. Justice Bacon, begun to speake and to make a kind of re­ply or answer, unto divers of the things I had infisted upon, and told me, that Sir Edward Cooke, in the 4. Part of his instituts, whom he did see I had very much studied, saith, That no inferiour Court could meddle to question Judgements of Parliament, and after a pretty large speech, told me, I was committed upon a centence from a Superiour Court, whose judgements by Law, they neither were able, nor could controule, and therefore must of necessity remand me back again, and after he had done, I replyed, Sir, it is true, the Judgements of Parlia­ment is not to be questioned by inferiour Courts, alwaies provided, they med­dle with that, which by Law appertaines to the Judgement of the Parliament, which the executing of Lawes, in the Originall Judgeing and desiding of de­ferences doth not the least; And besides, Mr. Justice Bacon, you doe not, I hope, in Law Judge the Lords House singly, or the House of Commons single, to be the Parliament; true it is sir, severall statutes in Queene Elizabeths time, as the 27. Chap. 8. & 31. ch. 1. provides, That if any find himselfe agreeved by false judgements in the inferior Courts, he shall, if he please, by a Writ of Error, sue in the high Court of Parliament (which I cannot be­leeve in Law is meant the Lords HouseAnd it is the most irrationall thing in the world, to say, that legally no Law can be binding, but that which is made by the con­sent of the King, Lords and Commons; and yet to prefor a single judgement of the Lords, made without all forme, shaddow, colour or pretence of Law; above all the Acts of Par­liament made for 3. or 400. yeares together, for this I will offer to all the Lawyers in England, and challeng them, to shew me one Statute, or a peece of a Statute, to justifie the Lords proceedings against me in Law, and I will be willing to lose my head, and to bee cut in ten thousand peeces; and besides, it is most irrationall for the Lords, who never pertended to any power, but what they deri­ved from the King, to immagine or go about to make the world beleeve, that they can by their wills destroy all the Lawes of England, (as in their dealing with me they have done) when the King their fountain of power, can doe no Judiciall action, but by his Courts of Justice; and that in the legall method, manner, or processe of the Law (although by Law a thousand times more is given and instated into him, then unto all the Lords of England) and for the truth of this, see the 2. part inst. f. 168, 186. 187). yea, if the King im­prison me illegally by his owne Warrant, ei­ther in matter or form, I have my remedy a­gainst him at law, as appears by the Act that abolished the Star-Chamber; and therefore, it is the height of erationally, to conceive, or say, that the Lords will, shall be Lord Para­mount, above the will of the King, their Fountain and Creator, and the power of the Law, which is above Him, from whom they derive all they have, or can pretend vnto; and I am sure the law tells me, that in the Courts of Justice, which is established and bounded by the law, and is administred, adjudged, and executed by sundry Judges and Ministers of the Law, is betrusted a full and ample power, for tryall of property of lands and goods, and for the conservation of the people of this Realm in peace and quietnesse; but I am sure by the Judges remitting of me back to prison there is a failer of Justice (which the Law abhors) and an insufficiency in the Law to deliver me from destruction, by lust, will and pleasure, and therefore without dispute slaves are the people of Eng. in the highest and slaves they must continue, if they spedily rouse not up their spirits & stand stifly for their rights. single) for the fur­ther and due examination of the said judgement, in such manner, [Page 28]as is used in erroneous judgments in the Court of Kings Bench; but the law gives not the Par­liament, much lesse the single House of Lords, the least cogni­zance in the world, originally to meddle with any thing betwixt party and party, and if they doe, I am sure by the law in force at this day, it is corum non judicii; but the Lords originally sum­moned me to their Bar, be for a­ny charge exhibited, or any in­dictment proferred, or any visi­ble complanant or prosecutor ap­pearing, and their high commission and Span [...]sh I [...] quisition-like, exa­mined me upon interrogatories, and so committed me to prison, for which they have no shadow of ground in law: Whereupon Mr. Justice Roll stept up, & con­firmed that which his Brother Bacon had already said, telling me, that the Chancery, and the Court of Admirals proceedings were diverse from those statutes I had alleadged, as well as the proceedings in Parliament were, and yet were Lex terrae, and it is positively (said he) the law of the Land, that an inferiour court as ours is, cannot reverse the judgment of a superiour Court, as the Lords are, which we must of necessity do, if we should re­lease you, which we cannot doe if we would, without medling with the merit of the cause from the beginning, and then the way ought to be by writ of Errour, which said he will not [Page 29]lye in this Court, in a Judgment given in the Lords House; and therefore you must rest content, & it had been well for you, you had pleaded these things before the Lords in your plea there a­aginst their jurisdiction; Sir, said I, I did so, and they sent me to prison therfore, & not only so, but in Newgate close imprisoned me therefore, and would not suffer my; wife to come into the Prison yard, so much as to speak with me; I also appealed to the House of Commons: and solely put my selfe upon their Justice and Judgement, but I sound them, for almost these two years together deaf, both un­to Justice, Law and reason; and now as my last legall refuge, I come to you, after I have been almost two years in Prison for nothing, as clearely appeares by the whole return, which only consists in generals, & generals are no crim [...] in Law; there­fore Sir, J beseech you, tell me whether the Law of England be so imperfect, that it hath provided no remedy, to preserve a man from destruction, by lust, will and pleasure, but if it have not, then Sir, I must ingenuously tell you, so much am I an Englishman, and free from the principals of slavery, that though I have suffered, and undergone with some kind of patience, almost two yeares imprisonment, without any cause, but onely by the power of lust, will, and pleasure, that I professe before you both, and this whole auditory, that were I this day put to my choise, I had rather chuse to combate one by one, with 20. of the stoutest men that steps upon English ground, though I were sure to bee cut in a thousand pieces thereby, then willingly to be Captived in Prison, two yeares longer, by the power of Lust, will and pleasure, without the hopes of any remedy but from those that tyrannize over mee, FOR TO BE A SLAVE IS BELOWE ME, or any man that is a man, but if this be good Law which you, declare unto me then, perfect slaves are we indeed.

Again Sir, is for that Law of Parliament you talk of, I had thought Eng­land had had but one Law to be governd by, & hat that had bin a visible and a declared Law, and not a Law in mens breasts, not to be knowne till they please to declare it, and then when they do, it shall every day crosse it self, and ebbe and slow ac­cording to successe. Sir, this is no Law at all, and therefore, here can bee no transgression against it, but if you mean a Law in being, but yet kept so close in holes and corners that none can come to see it, or read it, but only the executors of it, this is as bad as no Law at all, and as good living in Turky, as under such an unknown Law: But Sir, to lay aside all these dubious disputes about Ju­risdiction, and Parliament Laws, and Laws in the ordinary Courts of Justice; and suppose the Lords have a power of Jurisdiction in the present case to sentence me, if really I had committed a crime, and suppose (but no more) that you are an inferiour Court, and cannot legally reverse or take cognizance of [Page 31]their Judgments, yet I desire to keep you close to my return, which shew, clear­ly, that I am imprisoned for nothing, and thereby rondred an innocent and just man, and therefore I demand positively your judgments in that, whether it be so or no; And secondly, whether the Law hath not provided a remedy for me, and for my deliverance from under any power in England, in case I be imprisoned by them for nothing; unto which, as I remember, both the Judges spoke to it in the fore­going manner, and if I wrong them not (which I would be very leath to do) in the conclusion of their spaeches, both of them ingenuonsly confessed, that by my return it did appear. I was imprisoned without any crime in law, laid unto my charge, but yet being committed by a superiour Court the Lords, and that upon a sentence they could not in Law relieve me. Whereupon I earnestly pressed to be heard but a few words more, which was granted, and I very soberly said, Mr. Justice Bacon, I have been forth in service to fight for the Laws and Liberties of England, against those men that the Parliament made me and divers others believe, would have destroyed them, and I was I confesse, very zealous to presse others to do as I did; But Sir, had it then been told me by those that set me at work, or had I in my own breast believed i [...], that the issus of all our fightings should have beene contured in making the people of the Kingdom slaves, or that all our fighting should have contributed to nothing so much, as to inable a company of men sitting here at Westminster, called LORDS and COMMONS, arbytrarily by their lusts, wils, and pleasures, to have raigned and ruled over us, I would have been so far from killing of Cavaseers, that I would rather with my own hand; have beene my own executioner, then to have murdered men to satisfie the lusts of others: But seeing it is as it is, and that I have been so grosly mistaken in these mens pro­mises, oathes, Declarations, and ingagements, which now they judge as nothing, but have throwns them all behind their backes, I shall recant my error in be­leeving of them, and perswading others to doe i [...], and shall desire to be set­led in that which is truth, which is now to beleeve them noemore, and in­stead of being zelous to provoke the People to stand up for there Lawes at their commands, I shall be very sorry for that error or mistake, or I cleare­ly see thore is none in England of any more strength then a piece of soft wax, nor the People by there great Lordly promises, were never intended other then to be Vassels, and slave, Yea the most miserablist of slaves, b [...]ing first in sabjection to a Statute Law, and if they transgresse that, then the Judges of the Law are ready to distroy both life, and E­state therefore; secondly, to a Law of Ordi­nances, and if they transgesse that which is sufficiently contradicttory in it selfe, then they shall by one Arbitrary Committee, or o­ther hazard, the loss [...] of all they have, with out any witnesses sworne against them, or any Jury pinnelld, or it may be any complaint in writting preferrd against them, but they shall be distroyed by the will, and descration of the Committes, for such proceedings contrary to the fundamentall Law of the Land, both Dud­ley and E [...]son Privie Cou [...]cellers, were hanged, though they had an Act of Parliament to authe­rize their doings, as appears 2. part. insti. fo. 51.3. part insti. fo. 2 [...]8. and 4. part. insti. fo. 41.196.197.198. but yet if a man be never so observi­ant of both the Law, and Parliament Ordinan­ces, yet thirdly, Parliament Lords and Com­mons have a Law paramount above them both, and which as pleasure shall null them both, and neither of them shall be any protection unto you, and that it their law of will, lust and plea­sure, more exercised & put in use by them,, then both the former; so that of necessi [...]ie slaves in the highest are all Englishmen, now being under 3. distinct Lawes for their destruction; but can in­joy the benefit of never a one, for their preservation, and therefore for the Par­liament to make Judges of the Law, to executed, is but a mooking and chea­ting of the people; for they have left them none to execute, but have superse­ded it every line, with the Law of thir lusts, wills, and pleasures, for all their lying promises in all their Declarations to the contrary, & therefore all ye true hatted Englishmen, awake, awake, & looke wel about before the midnight of slave­ry sease upon you. and therefore Sir, I shall now convert all my zeale, to presse all the Com­mons of England out of all the Counties thereof, to ha­sten up to Westminster to the Lords House, and there at their dore susser the Lordn to [Page 23]bore them through their cares as their Vass is and slaves, being heir actions clearly and dayly de­clare, they never intended them any freedom, Law, or Justice, and absolutely it is a vaine thing, and time meerely lost from their hands to expect any; so Judge Roll, concluded and said they were upon their Oathes, and as Judges of the Law, they could do no other bat remand me to prison againe, unto which ipaciently stooped, and came away, but had much ados to get out of the Hall, by reason of the extraordinary crowde.

And the next day sending to see what was entered in the booke about me, the Clarke or Regester sents me a paper in these words.

Iohn Lilburne Gentleman brought here into the Court upon an Habe­as Corpus, by Robert Titchburne Esquire, Lieutenant of the Tower of London, and the returne of the said Habeas Corpus, being read, he being commit­ted by the Lords and Commons in this Parliament of England assembled, it is order­ed that he shall be remitted.

O superlative Justice, was ever any man committed or remanded to prison before? by those Judges that in open Court declare he hath been alrea­dy almost 2. yeares in prison for nothing? and now also they have no crime to lay to his charge, which is my case; but to draw to a conclu­sion, I desire to fulfill my promise, and give you a sight, of the returne which thus followeth.

J Robert Titchbourne Esquire, Keeper of the Tower of London, according to a shore Writ of our Lord the King, to this scedule annexed, certifie, That Iohn Lilbourne Gentleman, in the said Writ mentioned, was committed, and is de­tained in my custody, by vertue of an Order made the eleveth day of Iuly, 1646 by the Lords in the present Parliament of England, assembled, and then sitting, the tenour and scope of which Order followeth in these words.

ORdered by the Lords in Parl. assembled, That John Lilburn (being senten­ced by this House) shall for his high contempt and misdemeanour done to this high Court, according to the said sentence, stand committed to the Tower of London, for the space of 7. yeares next after the date hereof. And that the Liou­tenant of the said Tower of London, his deputy or deputies are to keepe him in safe custody accordingly; And that he do take care that the said L. C. John. Lilburn do neither contrive, publish, or sptead any seditious or libellous Pamph lets, a­gainst both or either Houses of Parliament.

Iohn Brawne, Cler. Parl.

To the Lieutenant of the Tower of London, his Deputy or Deputies.

And further I certifie our Lord the King, that afterward, to wit, upon the 18. day of Ian. 1647. It was ordained by the Commons in the said Parl. assembled, as followeth in these words. Die Martis 18. Ian. 1647. Resolved &c. That the Li­cutenant of the Tower be hereby required to bring up to the Bar of this House, to morrow morning at nine of the Clock L. Coll. Iohn Lilburne, his Prisoner.’

Hen. Elsynge, Clar. Parl. D. Com.

By vertue of which, I the said Rob: Tichbourn the said Iohn Lilbourn brought up to the laid House of Commons in the said Parl assembled, by wh [...] after­ward, the said Iohn Lilburne was againe committed, to wit, upon the 19. day of Jan. 1647. to my custody, and in like manner is detained by vertue of an or­der made by the said Commons in Parliament assembled, the tenour of which order followeth in these words.

By vertue of an Order of the House of Common, these are to require you to re­ceive from the Sergeant at Armes, or his Debutie. the body of L. Col John Lil­bourne, into the Tower of London, and him there to detaine in safe Custody, as your Prisoner, in Order to his tryall according to Law, be being committed for treasonable and seditions practices against the state, and for so doing, this shall be your warrant.

Wil. Lenthall Sp [...].

To the Lieutenant of the Tower of London.

The said Iohn Lilburn is also detained in my Custodie, by vertue of another Order made by the said Cōmons in the said Parl, assembled, the tenour of which Order follovveth inthese words Die Martis 18 April. 1648. Resolved, &c that the 4. Aldermen of London, Col Lilburne for Iohn May and, do continue in the Tovvervv thout being removed from thence.

H. Elsing. Cler. Parl. D. C.

These are the causes of the keeping and detaining the said Iohn Lilburne in my enstody, whose bodie before our Lord the King, at the day and place in the said vvrit contained, I have ready, as by the said vvrit is commanded

Robert Titchburne Keeper of the Tovver of Lonodn.
So deare friend, with my service presented to you, I rest,
yours faithfully, John Lilburne.
FINIS.

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