A Plea, or Protest, MADE By VVILLIAM PRYNNE, Esquire, AND By him sent unto J. M. Knight, one of the eleven impeached Members.

Wherein he declares the injustice and illegality of the Lords, Commons; and Grandees of the Armies Proceedings against him.

Whereunto is annexed the Case of A. B. (a Citizen of London, and a free Commoner of England) truly stated, in re­ference to a pretended impeachment of Treason depending in the House of Peers against him: With an Answer to certain Que­res framed thereupon: Unto which is annexed the Answer of the said A. B. unto the Lords assembled in Parliament in point of Law, in reference to the said pretended Impeachment; in which it is fully proved, that the House of Lords (by the known and declared Law of England) hath not the least Iurisdiction in the world over any Commoner whatsoever in any case whatsoever: With a full An­swer to all their Presidents in such cases; And that it is not safe for the said A. B. to kneel at the Lords Barre, because it is a stooping and submitting to their Jurisdiction.

Published for the common good of all honest Englishmen, By Lionel Hurbin Gentleman, March 17. 1647.

Printed for Iah. Hornish. 1648.

The Protestation of J. M. Knight of the Bath, to the Articles of high Treason, dr [...]wn up by M. William Prynne of Lincolnes Inne Esquire, and sent by him unto the foresaid J. M. for his le­gall Plea, Protest and Answer to his Impeachment at the Lords Barre.

ALl advantages of exception to the incertainty and illegality of the Articles exhibited against this Defendent in the name of the Commons assembled in Parliament, in maintenance of their accusation and impeachment of high Treason against him, to this Defendent now and at all times hereafter saved, when he shall be legally charged and proceeded against in a full and free Parliament: He this Defendent, not by way of Answer, Plea, or Demurrer, but of Protestation onely, saith, that as he cannot acknowledge all or any of the said Articles to be true in any part thereof in manner and forme as they are exhibited, being no wayes conscious to himselfe of any crime of High Treason, much lesse of levying any new or actuall Warre against the King and Parliament, in whose faithfull service and defence he hath during these late unhappy troubles, spent most of his time, and engaged a great part of his estate, without any recom­pence or salary; so in discharge of his duty to the Parliament and Kingdome, and performance of his solemne League and Covenant in point of conscience towards God, he is now further necessitated most solemnly to protest, that both Houses of Parliament for the space of seven months last past, and at the time when the Articles of his present Impeachment were Voted in the House of Commons, transmitted to the Lords House, and he this Defendent ordered to put in his Answer thereunto, were and ever since have been and still are under the open actuall horrid force, power, menaces, Guards and Garrisons of Sir Thomas Fairfax, and the Army under his Command, who refused to disband, according to the Houses Votes and Ordinances, marched up in a body against them to Westminster, contrary to their expresse Or­ders and Commands, impeached, suspended divers, and forced away the major part of their Members, constrained them by menacing Declara­tions, and their approaches towards the Houses to retract many Votes and Ordinances pass [...]d in both Houses when free and full, and to make divers new Votes, Orders, and Ordinances, against their wills and judge­ments, quite contrary thereunto, and have since got the Command of [Page 2] the Tower of London into their hands, and erected new Garrisons of horse and foot at White-hall, and the Mues, and placed armed Guards upon both Houses, to intimidate and force them to carry on their pro­jects and designes, and Vote what they and their Confederates shall prescribe: In which regard he this Defendent humbly conceives, that the House of Commons are utterly disabled and made uncapable to exhibite, Vote, and transmit, and the House of Peers (divers of whose Members have been lately since the said force impeached, suspended, imprisoned, and kept out of the House upon the selfe-same pretended false Articles which are charged against this Defendent, of purpose to deprive them of their Votes, as is conceived) put into an absolute in­capacity for the present to receive and prosecute these Articles of Impeachment of High Treason against this Defendent, the rather for that the respective Parliaments of 15. E. 3. 21. R. 2. 11. H. 4. 31. H. 6. & 39. H. 6. and both Houses in this present Parliament assembled in their Ordinance of the 20. of August last, have solemnely adjudged and re­solved, that all Acts of Parliaments, Attainders, Impeachments, Votes, Orders and Ordinances of one or both Houses of Parliament, made and passed whiles the Parliament and Houses were under any actuall force and menaees, (especially of an whole mutinous Army marching up against them, and quartering and erecting new Garrisons round a­bout them) are meerly void in Law, and ought to be so reputed and declared; and that more especially in this Defendents case, who was originally impeached and prosecuted in the Commons House with ten other eminent Members, in the name of Sir Thomas Fairfax and the Army under his Command, and by their menaces, force, and vio­lence, suspended, and ejected out of the Commons House, whereof he was lately an actuall and still is a rightfull Member, without any legall Triall, or any witnesses or proofe legally examined against him, or being once admitted to his lawfull defence by the Army and their Confederates meer arbitrary power and party in the House, who have no lawfull Authority to suspend or eject their Fellow-Members, who have every way the selfe-same and as good right to sit and continue in the House as themselves; and therefore whiles both Houses continue under this force and power of the Army, and whiles above halfe their Members are forcibly suspended, ejected, restrained or forced to ab­sent themselves, this Defendent can neither in honour, justice, nor conscience acknowledge them, nor either of them to be in any le­gall capacy to exhibite, receive or prosecute any Charge or Impeach­ment [Page 3] against him, untill they be totally freed from the Armies Wardship and over-ruling power, and all their unjustly impeached, suspended, ejected and absent Members restored to their ancient Freedome of vo­ting and sitting in the Houses, without any Guards or over-awing Forces to terrifie or daunt them. And moreover, this Defendent by Protestation onely averreth, that the Speaker of the House of Com­mons and trust of those Members in it who were chiefe compilers and contrivers of these Articles against him, and the Speaker of the House of Peers, with nine other Peers who now pretend and are most likely to be his Judges, did in or about the 4. day of August now last past, contrary to their trust and duty, not onely desert their service and at­tendance in the Houses and fly to the Army without just cause, whiles divers other Members of both Houses continued sitting, but likewise enter into and subscribe a solemne Engagement to live and die with the Army in this cause, and to prosecute your Petitioner and others who then continued sitting in the Houses, who in pursuit of that En­gagement, have exhibited these Articles against this Defendent, and thereby absolutely disabled themselves being pre-engaged parties to give any Vote at all, or prosecute this Impeachment in the Commons House, or to be indifferent competent Judges thereof in the House of Peers, who have no proper conusance of expresse Treasons triable by Verdict and Indictment at the Common-Law, and not in Parlia­ment, it being against Magna Charta, ch. 29. 25. E. 3. c. 2. 4. 28. E. 3. c. 3. 37. E. 3. c. 8. 42. E. 3. c. 3. The Petition of Right, 3. Caroli, and sundry o­ther Statutes. Upon which just grounds and considerations, he this Defendent by this his Protestation absolutely protests against all and every of the said Articles as null and void in Law, to which he is bound to give no present Answer in Parliament, and to except against all those Members of either House who have subscribed the Engagement to the Army, as being incompetent prosectors and Judges in his pub­like cause; and therefore he this Defendent humbly appeales from an empty, forced, and over-awed, to a full and free Parliament, where he shall be alwaies ready to answer all such crimes properly triable in and by Parliament, as shall be objected against him in a due and legall way, not triable elsewhere by Indictment, Jury and the ordinary course of the Common-Law in other Courts of Justice, as this pretended levy­ing of Warre is, both by Common and Statute-Law; and therefore this Defendent for the reasons aforesaid, humbly prayeth to bee excused from giving any further or other answer to this void impeachment, till [Page 4] this his solemne Protestation shall be debated and over-ruled in a full and free Parliament exempted from the Armies Jurisdiction, Ward­ship and over-awing force.

Courteous Reader, Thou art desired to take notice, that the reason wherefore the forementioned Plea and Protest of Mr William Prynne is now printed, is because since he sent it to the foresaid Knight (which will be punctually and fully proved he did, if he shall deny it) he hath since published a large Plea, to justifie the Lords Jurisdiction over Commoners in Criminall Cases, and thereby done as much as in him lies to the height, to animate and incourage the House of Lords to proceed to adjudge, condemne and execute the foresaid Knight, and the four Aldermen of London, now Prisoners in the Tower, and who now stand impeached before the Lords Barre by the House of Com­mons (being forced thereunto by the over-awing power of the Gran­dees of the Army) of high Treason; But I desire any rationall man in England (but especially all those that wish well to the foresaid Priso­ners) seriously to consider, whether a more mischievous malicious and destroying action could be done, to destroy the Lives, Liberties and E­states of the foresaid Prisoners by the most malicious adversarie they have in England, then that illegall and desperate Plea made by their much pretended friend Mr. Prynne, who thereby hath (if I have any judgement) stab'd them and there Liberties (as much as in him lies) to the very heart, but what should be the reason of his so unseasonable publishing of the foresaid desperate Plea at this very nick of time when they are all upon their trialls, and their lives and Estates thereby at stake, and absolutely in danger to be destroyed, if they stoope and sub­mit to their Jurisdiction (as is undeniably evinced in the following case of A. B.) I am not able to render, unlesse it be because the foresaid Knight would not follow his advise in delivering the foresaid Protest, which he of purpose sent unto him for that end, the which if any rati­onall man please to compare with his foresaid Plea, he shall find it an absolute answer to the chief things in it, and a contradiction of it, and which in the following lines so much, as concernes the Lords Jurisdicti­on over Commoners is fully answered.

The Case of A. B. truly stated, &c.

THe two Houses of Parliament the 26. of July 1647. were petiti­oned by the City for the Militia as the Houses had established to them for one yeare in May before; and notwithstanding had been the 23. of July (at the desire of the Army) altered and put into such hands as they desired. This Petition was seconded (though not with the knowledge of the City) by another from the Apprentices and others who came tumultuously upon the Houses, and prevailed for re-esta­blishment of the Committee of Militia as in May before.

The day following, being the 27. of July the Houses sate, and ad­journed till Friday following: upon Friday, after long waiting, and much inquiry made for the Speakers, it appeared they were gone to the Army, and deserted the Houses, whereupon both Houses chose new Speakers, and proceeded as before, and endeavoured to provide for the safety of the Parliament, City and Kingdome; and in order thereunto gave order to Committees formerly named to that purpose: where­upon the Army, with the former Speakers, & divers others, viz. 9. of the House of Lords that now sit, and 58 or thereabouts of the House of Commons, marched up towards the Parliament and City in a hostile manner, notwithstanding the Houses then sitting ordered the Army not to march towards the City, nor nearer it then 40 miles; which Orders were sent and delivered to the Generall and Commissioners of Parlia­ment resident in the Army, to which they yeelded no obedience, but contrarily marched nearer the City; and upon the third of August last the Army published their Declaration against the City and Parliament then sitting, pretending the Houses were no Houses of Parliament, but a company of Lords and Gentlemen assembled together, assuming to themselves a Parliamentary power, and all they that acted therein, or upon their Orders, they acted without any authority of Parliament; the Army avowing those that had left the Houses as invested with the Parliaments Authority; and that the Army would onely act upon, and according to their Councell: and this the Army ingaged to make good with their lives and fortunes.

This Declaration the said Speakers and Members upon the 4. of Au­gust [Page 6] entred an Ingagement under their hands, to make good with their lives and fortunes: And upon these grounds the Army and they joyne and march upon the Parliament and City, and accordingly the 6. of August, the said Speaker and Members in an hostile manner came up with a part of the Army to the Houses, and there the Speaker and Members tooke their seats as before, and have ever since with that force, or some other part of the Army attending them, continued sitting.

Upon the said 6. of August they appoint a Committee (another Committee then the Houses had appointed in the absence of Speaker and Members) to examine the force upon the Houses, the 26. of July, 1647. and that day or immediately after, endeavoured to passe a Vote for the owning of the Engagement entred into by the Speaker and Members as aforesaid with the Army, which would not then passe, as also a Vote for the nulling of all Ordinances, &c. betwixt the 26. of July, the day of the force, and the 6. of August, the day the Army put the Speaker into their Chaires as aforesaid, which many severall daies passed in the Negative; both these Votes and many more to this purpose which first passed in the House of Lords, consisting then of the engaged Lords, and from day to day renewed by those Lords, and sent down to the House of Commons for their concurrence.

And at length by meanes of more force, and a Remonstrance from the Army of the 17. of August, the Vote was passed, and being obtain­ed, divers of both Houses of Parliament, and of the City of London were examined upon, questioned, impeached and imprisoned, and for their very obedience to and acting upon the Order and Ordinances of the House of Parliament, (who sate in the absence of the rest and are allowed to be Houses of Parliament by that Order, wherein all they did in that time is declared to be null) are ordered to be brought to their Triall upon pretended treason and misdemeanour, amongst which A. B. is one, and is to be tried by those very Lords (if he submit there­to) who entred this Engagement, and who if they condemne not A. B. and the rest upon the said treason and misdemeanours, make them­selves guilty for their thus acting and engaging with the Army against the Houses as aforesaid, and so will bring a condemnation upon their own heads.

All which premised and considered, I frame three Quaeres.

[Page 7] 1. Query. Whether it be safe for A. B. questioned by the House of Commons, and the Army, to submit to any triall by the engaged Lords, who by their engagement have passed judgement upon him already, which they are to make good with their lives and fortunes, and must as the case lies condemne themselves or him. To which I answer negatively for these ensuing reasons.

1. Ans. Its not to be supposed, that the Lords will declare themselves Traitors; and warre being Levied by A. B. and them, each against other, the fact of one or the other, must necessarily be included in the Stat. of 25. Ed. 3. where levying warre against the King is declared treason.

2. A. The quality of A. B. his supposed fact is so prejudged treason by the Commons already, and who have so transmitted it to the Lords, as that the Lords, dare not dissent, least the House of Commons and the Army should fall furiously upon them and incline to abolish their vsurped juris­diction over Commoners or any other ways to be revenged of them, and therefore in case A. B. submit to a triall by those Lords the hopes of his life solely depends upon the defect of evidence as to the matter of fact.

3. A. The Interest of those Lords, and of the Army Grandees whom they are obliged to serve, is to excute exmpelary punishment upon some that resisted the Army, otherwise their reputation with the people will be utterly lost; and therefore if A. B. put himselfe upon a triall by the Lords, assuredly they must and will lay Load upon him to the purpose.

2. Query. If the first be not safe, then secondly what is A. B. his safest Plea, whether to the Lords none Iurisdiction of his cause, being against Magna Charta the Petition of Right, &c. by the authority of, which the Commoners of England are only to be tryed by their equalls. Or to the incompetencie of judging in this case being both judges and parties.

A. Its not safe for A. B. to plead that the Lords are incompetent Iudges because they are parties, and the reasons are.

First, Because that Plea, is not only an implicit acknowledgment of their jurisdiction over Commoners, but also a tacit confession of the matter of fact, for the very Plea implies a mutuall Levying warre, else they could not be parties.

Second, Because that Plea, is not valid in Law, for the King sits by his Deputies in all Courts of justice, and yet he is in Law a party.

Third, Because that Plea lies onely, as to the equity of the Laws, nd there­fore admitts of the exercise of the judiciall power about it, and so the Com­mons which transmitted A. B. unto the Lords, and the Lords themselves [Page 8] must be judges of the validity of the Plea, and it cannot be supposed that either the Commons or the Lords, will take that dishonour to themselves to reverse their former judgement: and so consequently the House of Commons acknowledge the Injury they have offered to A. B. by impri­soning him, &c. And the House of Lords also acknowledge the wrong they have done to the Lord Willoughby and the rest of the seven impeached Lords by restraining them, &c.

There remaines therefore no secure Plea to A. B. but to the non-juris­diction of the Lords over Commons.

3. Query. If the first or second, be judged the safest Plea, then in the third place when is the proper time of pleading.

A. 1. The only proper time is to begin, when the Lords send their first warrant to bring A. B. up to their Barre, before them to answer to the im­peachment, and this to be done by a salvo to his Liberty put into the Liev. of the Tower, in the nature of that which Sir Iohn Maynard sent to Col. Tich­hurne the 17 Feb. 1647. which you may read in Print it the 36 and 37 Pages of his case truly stated.

2. But secondly, at the least A. B. must refuse to kneele at the Lords Bar, because it is a cleare acknowledgment of their jurisdiction over him; and this appeares by these insuing reasons.

First, Because kneeling at their Barre, is the only distinguishing note be­tween those who come to their Bar; only by a bare Summons, or for witnesses, &c. and those which comes to their Bar as Deliquents, the first of which they never require to kneele, but only the second, viz. Those which they look upon as Delinquents; therefore whosoever kneeles at their Bar, acknowledgeth the Lords power and jurisdiction over him, to Summon him to their Bar as a Delinquent, and there to judge and condemne him.

Second, The Lords claime to that adoration by kneeling, extends to no other then those Delinquents which are under their jurisdiction, and that only as they are Delinquents.

Third, Its evident by the constant practise, of all such as are not looked upon as Delinquents, comming to their Bar; that kneeling is no note of Civill respect, it being never required of them, nor performed by them; and therefore by consequence must be a symptome of delinquency per­formed only by those that stoope to their jurisdiction over them to try them therefore.

Fourth, Its very observable that in the ordinary Courts of justice, no man [Page 9] holds up his hand at the Bar but a Delinquent, that is a person adjudged a Delinquent (and under their jurisdiction) by a Iury of twelve men, com­monly called the Grand Iury; and though some pretend kneeling in Law to be only an act of reverence, that implies honour and power, yet it is evi­dent that all persons, appearing before the ordinary Courts of justice, in civill causes, from whom equall honour is due to them, and over whom they have power of jurisdiction, yet I say all such as appeare before them in civill causes, are not required to hold up their hands at the Barre, but only those that are as before esteemed and judged Delinquents; so in the like manner no more are any required to kneele at the Lords Barre, but only those they judge Delinquents, by vertue of which kneeling they do ipso facto acknowledge and grant them a jurisdiction over them.

Fifth, Now considering that kneeling is a stooping to the Lords juris­diction, and also an acknowledgment of Delinquency, therefore whoso­ever kneels at the Lords Barre, doth acknowledge himselfe a Delinquent, and also before his legall Iudges, therefore it is undeniable, that after kneel­ing no plea against their jurisdiction can be legally admitted after such an undeniable submission to it; for in ordinary Courts though any priviledge of being an officer, &c. in another Court might legally exempt the party, to be tryed from the jurisdiction of an other Court that will try him, if he claime and challenge his priviledge, before he sloop unto their jurisdiction, yet in case he shall first doe any act that acknowledge their jurisdiction over him, before he claime and challenge his priviledge; no Plea by him against their jurisdiction will be admitted afterward.

The answere of the foresaid A. B. a Citizen of London, and a free Commoner of England, to the Lords in Parliament Assem­bled, upon the commands of the said Lords, that A. B. should returne an answer to a scroule or paper called by them Ar­ticles of Impeachment, &c. against the said A. B.

THe said A. B. saving and reserving to himselfe intire, his native liber­ty as a commoner of England, not to answer unto any Charge, Im­peachment, or Indictment, by whomsoever exhibtied against him, before any persons unto whom the cognizance of the crimes of Commoners, and their trialls doth not legally, and properly pertaine: yet protesting against all indeavoures and desires of avoiding, or escaping a just and legall tryall for any [Page 10] crime, or offence whatsoever, whereof he now pretendedly stands suspected and charged, and declaring his willingnesse, and readinesse now, or any time hereafter, to answer to any crime that either is, or shall be, legally ob­jected against him befo [...]e any Cou [...]t, that by vertue of an established law, hath jurisdiction over him, he the said A. B: saith. That in case he were to be suspected for Treason Felony, or any other crime, there could be no legall just proceedings to bring him to answer, but by presenement, or indictment of good and lawfull men of the neighbourhood where such Treasonable, Fe­lonous, or other criminall deeds are done; which is undeniably evident by the petition of Right made in the third of the present King, and the act for the abolishing of ship money and the other act for the abolishing the Starr-Chamber made this present Parliament anno 17.Which five acts you may read in L. C. Ioh. Lilburns book called peoples prerogative. p. 1. 2. 3. 4. & 22. 23. 24. 25. 26. 27. of the King.

The very expresse words of the last, of which are, that, Whereas by the Great Charter many times con­firmed in Parliament, It is enacted that no freeman shall be taken or imprisonned, or diffeised of his free hold, or Liberties, or free customes, or be out lawed or exiled, or otherwise destroyed, and that the King will not passe upon him, nor condemne him, but by lawfull judgement of his Peers, or by the Law of the Land; And by another stature made in the fift yeere of the Raigne of King Edward the third, It is inacted, that no man shall be attached by any accusation nor fore-judged of life or li [...], nor his Lands, Tenements, goods nor Cattells seised into the Kings hands, against the forme of the Great Charter, and the Law of the Land; And by a statute made in the twenty five yeere of the raigne of the same King Edward the third, It is accorded, assented, and established, that none shall be taken hy Petition, or suggestion made to the King, or to his counsell, unlesse it be by indictment, or presentment of good and lawfull people of the same neighbourhood where such deeds be done, in due manner, or by processe where such deeds be done, in due manner, or by processe made by writt originall at the common law; and that none be put out of his franchise or freehold, unlesse he duly brought to answer, and fore-judged of the same by the course of the Law, and if any thing be done against the same, it shall be redressed and holden for none. And by an other statute made in the twenty eight yeere of the same King Edward the third. It is amongst other things inacted, That no [Page 11] man of what estate or condition soever he be, shall be put out of his Lands o [...] Tenements, nor taken nor imprisoned, nor disinherit­ed nor put to death,So that in time of peace, for a generall or any other, that hath commission of Marshall au [...]hority, to hang, or other­wise execute any man by col­lour of Marshall Law, this saith Sir Edward Cooke 3 part in­slit. fo 52 is absolute murdes: yeas there he fur [...]her saith Th. Earle of Lancaster being taken in an open infurrection (or rebellion) was by judgement of Marshall law put to dea [...]h the 14 Ed. 4. this [saith he] was adjudged to be unlawfull, and he gives this reason for it, because he was not tried by the declared law of the Land [which is every Englishmans birthright] the Courts of Iustice being all open, where-according to the aocustomed manner it was dispenced, see fo. ibid. 86 87. and 2 part fo. 529. see the petition of Right and William Thomsons plea a free commoner of England now condemned by Marshall Law, by the Generall, &c. to be [shot to death] printed in the 45. 46. 47. 48. 49 50 pages of the forementioned booke, called the peoples prerogative without being brought to answer by due processe of Law. And by another statute made in the fourty two yeers of the raigne of the said King Edward the third. It is inacted that no man be put to answer without pre­sentment before Iustices, or matter of record, or by due processe or write originall according to the old law of the Land, and if any thing be done to the contrary, it shall be void in Law, and holden for error.

And the said A. B. further saith. That for the better securing of the subjects lives, Liber­tie, names and estates, the Law hath provided that in the legall proceedings aforesaid, to bring any person accused to answer, the informer or accuser shall not only be known, but also bound by the justices to prosecute his suggestion, that thereby the party accused may have due re­parations in case of scandall: and to that intent was it inacted by the statutes of the 37 Ed. 3, 18. and 38. Ed. 3. 9.

That [...]f any shall make suggestion to the King, of any crime committed by any other, the same per­son shall be sent with the suggestion to the Chan­celler, &c. and there to finde surety to persue his suggestion, which if he cannot prove, he shall be imprisoned, and there remaine untill he hath satis­fied the party accused of his damages and slander; And the statutes of the 1. Ed. 6. 12 and 5 and 6. Ed. 6. 11. hath provided, that no man shall be indicted of treason, unlesse he be accused by two lawfull and sufficient witnesses, or shall without violence con­fesse the same.

And the statute of the 1. & 2. of Phillip and Mary chap. 10. enacts, that no man for any crime that is called Treason should be tried, but at the Common Law. And he the said A. B. further saith that both your Lordships, and [Page 12] the House of Commons in the whole stream of all your Declarations, de­clare unto the whole Kingdome, that you will preserve the subjects Liberties and freedomes, and the just and fundamentall Lawes of the Land, and in parti­cular in your late printed Votes of 27. Jan. last, although you declare to lay the King aside, and make no more addresses to him, yet you there de­clare; to maintaine and preserve the Lawes of the Land, and to Governe the people thereby.

And he the said A. B. further saith, that the not finding any indict­ment or presentment of him, for any reall or supposed crime, by good and lawfull men of any neighbourhood, where such supposed crime was commited, he ought not to be put to answer at all, neither can he with safety to himselfe, or to the Commons of England, or to the Lawes and Liberties thereof, answer your Lordships any further then meerly to point of juris­diction, viz. That your Lordships by the knowue and declared Law of this Land hath not the least jurisdiction in the world over him, or any Commoner of England whatsoever in any case whatsoever.

And therefore he the said A. B. positively sai [...]h, that in case he were le­gally indicted for Treason, or any other crime whatsoever, the case comes not under the cognizance of this honourable House; for the said A. B. being a Commoner of England; ought expressely by the established Lawes of the Land, to be tryed in some ordinary Court of Iustice, before a Iudge or Iudges, sworne, impartially to execute the Law, notwithstanding the commands of any power in England to the contrary, and the sworne jury of Commoners his Peers or equalls (viz. a Grand jury and pet­ty juryAs appreares by the 22 Ed. 3. fol. 20 &. 32 H. 6. fol. 26. & 14 H. 7. fol. 19. and no otherwise. These are the ex­presse words of the 29 chap. of Magna Charta, Nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, &c. That is, neither the King in his own person, nor any of his Justices, Iudges or Courts, shall try or condemne any man but by due course and processe of Law, by the See Sir Edward Cookes ex­position of the words pre­pares, in his exposition of the 14 & 29. chap. of Magna Charta. 2 part. insti. fol. 28, 29, 46. 48. 50. where he positively saith, that Peers signifie equals, or men of his own condition, and not freemen in opposition to Villaines, as Mr. Will. Prin would simply and ignorantly, ex­pound it, in the 62 pag of his late Erronious and illegall plea for the Lords jurisdiction over Commoners, and so make the Lords by Magna Charta Peers to Commoners, because they are both free-men and not Villaines; although that learned Lawyer, Sir Ed. Cooke in the first part insti. fo. 156. ecxpresly saith, a Peere of the Realme shall not be impanelled in any case upon the jury of a Commoner, because he is not his equall. lawfull judgement of a jury of twelve men of [Page 13] his Peers or equalls (viz men of his owne condition) according to the Law of the Land; and the same is further inacted and co [...]firmed by the 24 Ed. 3. 1 & 2 chap. where it is expressely inacted. That if any statute, judge­ment or decree be made or given contrary to this good law of Magna Charta, it shall (ipso facto) be holden for none, and so not in the least valid or binding, but meerly void, and null in Law, which just and good law of the Great Charter hath been at least forty times confirmed in full and free Parliament; And the said 29 chap. of Magna Charta, and the other statutes made in ex­position of it before recited, were and now stand strongly confirmed by this present Parliament, in the two fore-mentioned Acts for abolishing Ship-money and the Court of Starre chamber.

And the said A. B. further saith, that as the intent of the Law was, that all tryals might be equall and impartiall, and as free from will, pleasure and arbitrarinesse as possible could be, so it is founded upon these impregnable grounds of reason, justice and equity.

First, the Iury are to be of the neighbourhood where any such crime is committed, and some ought to be of the same Hundred,See 1 part insti. lib. 2. chap. 11. Sect. 193. fol. 125. and chap. 12. Sect. 234 fo. 155. & 157. & the 13 Ed. 138. & 28. E. 1 cha 9. for the Law presumes that such may have some cognizance of the fact, or of some circumstances thereof or of the party ac­cused, whose condition and manner of conver­sation is much to be regarded, for the discover­ing his intention in any fact supposed to be Treason or Fellony, &c. and the rule of the law is, Actus non facit reum, nisi mens fit rea.

Secondly, The Iury that passes upon any Commoner one day, may them­selves be in a condition, to be tryed by him another day as one of their jury: and hereby they are bound to indifferencie, and impartiality, considering it may be their own case.

Thirdly, The party accused may challenge of except against the Iurers: either against the Array, if the Sheriffe or Bailiffe impannelling the jury, be wholy disingaged, and indifferent as to the cause, and the parties prosecuring:See ut surpra & fol. 156. 158. or against the Polls, And in case of Treason he may chal­lenge 35. peremptorily upon his dislike, without rendring the least cause,See 1 part insti. lib. 2 chap: 12. Sect. 234. fo. 156. & 3 part fo. 27. 32. 33. 227. and as many more as he can render any reason for his iust chal­lenge; As in case he can challenge any for a Baron or Lord of Parliament, [...] [Page 12] [...] [Page 13] [Page 14] who as Sir Ed. Cooke saith shall not be impannelled in any case, 1 part inst. to. 156. or for defect in [...]state, or other abilit [...]es or for disaffection, or partiallity, or for any infamous crime, And hereby the Iudges of the party accused, may certainly be indifferent equall and impartiall

Fourthly, The matter of fact is only entrusted in the Iury, and the matter of Law to the Iudge for the preventing of all errours, confederacies, or par­tiallity.

The Iudge is sworne to do justice to all according to law, without re­spect of persons,Read his Oath at large made in the 18 Ed. 3. an 1344. and printed in Pultons col. of statute fol. 144 and L. C. Iohn Lilburnes booke called the peoples prerogative pag 10. and the Iury are sworne to find according to their evidence.

Now the said A. B. further saith, That from these reasons whereupon the Law recited was made and inacted, it is cleare and evident, that the tryall of any commoner pertaines not to this House, In the least; who the Law of England were never appointed to be the executors thereof in any case whatsoever.

The Members of this House cannot be of the neighbourhood where the crimes of all Com­meners are committed, and cannot be presumed to have any cognizance of the facts, or parties of­fending, neither do they allow themselves to be tryed by commoners, so as to be bound to in­differencie and impartiallity, from the know­ledge that the Commoners whom they try, may possible be of a IuryAnd heare it is worth obser­vation, that if a difference or controversie for land, or money, &c. happen between a Peere of Parliament and a Commoner the jury who is to end the controveresi may by law be ordinary freeholders so one single Knight be re­turned amongst them 1 part inst. lib. 3 chap 12. Sect. 134. to. 156. and the same holds in attainder of treason or Felo­ny 17 Ed 2 attaint 69 & 3 part insti. fol. 26. there must be an indictment of Peeres for reason by twelve men of the neighbourhood where the offence was com­mitted and ofter they are to receive a tryall or judgement by twelve Peers at least. H. 4. fol. 19, ct 13 H 8 fol. 12, 10. E. 3. fol, 46, [...] 3 a part insti. fol. 28. and the one must not be changed no more the than other and in confirmation thereof, that which was done after the condemnation of Sir Simon de Berisford, is famous, it is to be found Rot. Parl. 4. Ed. 3. Num. 2. And in the Rolls of Chancery it was enacted (or at least adjudged) That albeit the Lords and Peers of the Realme, as Judges of the Parliament, in the presence of the King had taken upon them to give judgement in case of Treason and Felony, of such as were not Peers of the Realme, that after that time no Peers should give Judgement upon others then upon themselves, accord­ing to Law. And A. B. further saith, that though this Record should be granted to be no Act, yet it is a solemne Judgment of the House of Lords, and therefore binding to themselves, who ingeniously confesse, They can not, nor shall not hereafter judge Commoners, because it is against the Law of the land for them so to do. for their tryall in a short time, neither can the said A. B. nor any other Commoner whom this House would try, challenge in the case of treason thirty five of the Members thereof, for the whole house a mounts very seldome to that number, neither will this House allow him the said A. B. to challenge any one Lord or Member thereof, though he should alleadge disaffection, partiallity, or that he is an engaged party, an examiner or prosecuter se­cretly, or openly, neither is any Member of this House, sworn to judge according to Law, or in matter of fact according to evidence.

[Page 15] And the said A. B. further saith, that Magna Charta before recited, be­ing not onely a Statute, but also a Declaration of the Common Law, [...]o Custome or presidents can be of any force in Law against it; for if your House can make presidents against both common and Statute Law, to con­demne one Commoner of England either in his life, liberty or estate, by the same right you may condemne a hundred, a thousand, yea the whole House of Commons it selfe, who by this account are but meere cyphers, and all the Judges in Westminster Hall &c. are but cyphers, yea and all the Lawes in England stand but for meere cyphers; and the said A. B. and all the rest of the Commons of England are thereby the perfectest slaves this day upon the face of the earth, and the end of all Government in clearly overthrowne, viz. the weale and safety of the people; and no law left in England but your Lordships will and pleasures for any man in the King­dome to hold or preserve any thing he possesseth by, whether it be life, li­berty or estate, and so the absolutest subversion of liberty and property is brought in amongst us that can be in the world. And therefore the said A. B. resolvedly saith, that if your Lordships shall shew him as many pre­sidents as will fill your House, that you have in all ages adjudged and con­demned Commonors at your Barre, yet he values them to more in com­parison to the severall Acts of Parliament, and the common Law of the Land, (which is right reason, which is above Acts, and the Law and rule to make Acts by) that he hath before cited [which are point-blank against your Lordships Jurisdiction ever Commoners] then he values the wind that blowes: And the said A. B. further saith, that if your Lordships can make and create presidents to destroy so many scores of Acts of Parliament, which have for many hundred yeares confirmed the 29 Chapter of Magna Charta, [when they have been the fullest and freest] and which legally [Page 16] are in force, and unrepealed to this houre, [yea and pluck up the funda­mentall common Law of England by the very roots] then why do your Lordships cozen, blinde, deceive, and delude the people of England, in suffering the King and the House of Commons nominally to beare the name of coadjutors with you in making Lawes?

And the said A. B. further saith, that seeing both the Statute and Com­mon Law is so expresly against your Lordships exercising Jurisdiction over Commoners, that though some by force, feare or ignorance, have stooped or submitted to your Lordships Jurisdiction, yet in Law submission is to no effect, nor no strength to the judgement, where the matter is coram non Judice, and though in former time there was no demurrer or exception to your Lordships Jurisdiction over Commoners, yet now there is, and therefore the forecited Lawes and Judgement are exception in law sufficient of themselves, to me or any other Commoner whatsoever, that shall make use of them; and for your Lordships to claime a jurisdiction over me a Commoner, from no legaller a ground then because your predecessors have granted it before you, is to set up an argument to justifie all the wic­kednesse in the world: and as sound an argument it is, both in Law and rea­son, for the present Judges in Westminster Hal to say, that it is legall and just for them to adjudge, that the King hath a true and legall all right in all the peoples proprieties, because there predecessors adjudged it so in the late Case of Ship-money, or that the present King may at his will and pleasure chop off all your Lordships heads, because his predecessor Richard the third did serve some of your Lordships predecessors so in the Tower of London.

And therefore the said A. B. conclusively saith, that the ignorance, feare or neglect of some Commoners to challenge at your Lordships hands their fundamentall and native rights and freedomes, to be tried only by their Peers or equalls according to the forementioned Lawes, doth not nor can­not prejudice any other Commoner whatsoever, which shall challenge as I now doe; his right and freedome according to the expresse and declared Law of the Land, and whatsoever presidents Judgements or Dcrees have been, wherein this honourable House have exercised a Judgement or jurisdiction over Commoners, they are all expresly declared errors, and to be holden for nought, by this present Parliament in its purity, virginity, and freedome, in that forementioned Act, for abolishing the Starchamber Court, wherein the foremen­tioned 29. chap. of Magna Charta and 28. Ed. 3. 3. and 42. Ed. 3. 3. &c. confirmed, which Statutes enact, that all free men shall have triall for their lives liberties and estates by their Peers equalls according to the common or old Law of the Land, and have also these words, That whatsoever shall be [Page 17] done contrary shall be void in Law and holden for error. And the same doth the Petition of Right made in the 3. of the King, which is every branch, ar­ticle, and Prayer of it, confirmed this present Parliament the 17 of the King in that excellent forementioned Act, for the abolishing of Ship-money.

And the said A. B. saith, inasmuch as the Statutes above recited have re­ference to the punishment of offenders, they are not to be taken by con­struction, but onely in and according to the letter thereof: and therefore are as binding to your Lordships House, and the House of Commons both, till they be legally abrogated, as they are to the meanest man in England. And forasmuch as it is plaine and without scruple, that the Lawes and Sta­tutes before recited, do absolntely restraine this honourable House from exercising over him the said A. B. or any o­ther Commoner of England, any the least jurisdiction in any case whatsoeverWhich is unanswerably pro­ved, as well by reason and ar­gument, as positive Law, in that strong and singular. Dis­course called the Lawes Sub­version, or Sir Iohn May­nard Case truly stated, pag. 23, 24, 25, 26, 27, 28., for the fore-recited Lawes expresly againe and againe say, that no Commoner shall be pas­sed upon, adjudged or condemned, but by the lawfull judgement of his Peers, or equals, according to the due course of the Law of the Land; and the said A. B. is very confident, that there is not, nor never was, since the the great Charter was made one established Law, or Act of Parliament ever made in England, that ever gave the House of Peers (in Writs of Errour, or any other case whatsoever) any Jurisdiction or power of pas­sing Judgement upon Commoners, and therefore all and every the Judge­ments and Decrees, that your Lordships have made and given (especially since the late Act for abolishing of the Starre-Chamber) are thereby de­clared to be ipso facto, erroneous, and null, and void in Law, and your Lord­ships liable (if not at the Common-Law, yet undoubtedly in the next free Parliament) to make legall satisfaction to all those persons, that by any of your Judgements, Decrees, Sentences, or Orders of Imprison­ments, you have most illegally and without the least shadow or colour of Law wronged.

And therefore he the said A. B. being a Commoner, doth hereby protest against submission to any triall before your Lordships, as not being his legall Judges: And he the said A. B. doth also claime the be­nefit of all the knowne and declared Lawes of the Land, which is his undoubted Birth-right, and appeale to his proper Judges, according [Page 17] to the said Lawes, viz. two Juries of 24. legall menThe reason wherefore the Iury is put in before the Iudge, is to erect a common errour amongst the people of England, viz. that the Iudge hath more power in him, then the Iury; when as in­deed and in truth (if a man without offence may so say) the Iury is as it were the God Almighty, and the Iudge is but as the Minister or Priest to pronounce and de­clare the sentence and judg­ment of God Almighty. of England, his peers or equalls, and the Judges appointed for to be the executors of the Law in the Kings Bench, or elswhere in the County where his pretended crime was com­mitted, and the said A. B. out of love and re­spect to your Lordships & his native Liberties earnestly entreats your Lordships seriously to consider, that in the foresaid Act for abolishing the Star-Chamber, the Judges therof are accu­sed, That they have not kept themselves to the points limited by the Statute that gave them their power, and Iurisdiction, but have under­taken to punish where no Law doth warrant, and to make Decrees for things having no such Authority, and to inflict heavier punishments then by any Law is warranted, and therefore saith the Act, the Proceedings, Censures and Decrees of that Court, have by experience been found to be an in­tolerable burthen to the Subject, and a meanes to introduce an arbitrary power and Government, (for which it was totally abolished,) all which with much more the said A. B. confidently averres, may be justly and truly said of your Lordships, in that you have fined, imprisoned, and murdered those that by Law you have not the least Jurisdiction in the world over, and therefore in common reason, equity and justice, better de­serve to be totally abolished,Which is undeniably pro­ved by Lievt. Col. John Lil­burnes printed Speech, that he made at the open Barre of the House of Commons against the Lords, Ian. 19. 1647. p. 13, 14, 15, 16, 17. then the said Court of Star-Chamber.


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