A PLEA at large, For JOHN LILBƲRN Gentleman, now a priſoner in NEWGATE.Penned for his uſe and benefit, by a faithful and true well-wiſher to the Fundamental Laws, Liberties, and Freedoms of the antient free people of England; and expoſed to publick view, and the cenſure of the unbyaſſed and learned men in the Laws of England, Aug. 6. 1653.
JOhn Lilburn Gent. now priſoner at the Bar ſaith, That he having heard the Charge contained in the Indictment now read unto him at the Bar; for Plea thereunto he ſaith, That it appeareth by the Act of Parliament of Jan. 30. 1651. That upon the 15 of January 1651 a judgement was given in Parliament againſt one Lieut. Col. John Lilburn in the Act named, for high Crimes and Miſdemeanours by him committed; as by the ſame appears, for which the Fines and other puniſhments were promulgated againſt him, mentioned in the ſaid Act. But the ſaid John Lilburn now priſoner at the Bar ſaith, That the ſaid John Lilburn in the ſaid Act named, and he the now priſoner at the Bar, be not one and the ſelf ſame perſon, for that he the now priſoner at the Bar is a free-born Engliſh Gentleman, and never was legally Charged, Indicted, and convicted, either by the Parliament or any other Court of Judicature, being a Court of Record, in the Engliſh Nation, or Commonwealth. And he ſaith, that the Parliament being diſſolved, and by the Law of Parliament in all dubious caſes, there being no other way to render the ſenſe2 and meaning of the Parliament, being a body politick, but by Vote of Parliament he ſaith it is now impoſſible; if the Speaker himſelf, and all the individual members of the ſaid Parliament ſhould upon their oaths be produced at the Bar; yet it is impoſſible by all their oaths, in Law to prove the John Lilburn now priſoner at the Bar, to be that Lieut. Col. John Lilburn, that the ſaid Parliament in the ſaid Act of baniſhment meant, becauſe by the Law of Parliament there is no other way in all dubious caſes to render the ſenſe of Parliament, but by the ſolemn Vote of the Parliament fitting as a Parliament, and paſſing it thereupon as a body politick.
And the priſoner at the Bar further ſaith, Neither was there any Judgement given in Parliament againſt him the now priſoner at the Bar, for high Crimes and Miſdemeanours mentioned in the ſaid Act, upon the ſaid fifteenth of Jan. 1651. Votes and Reſolves being not in the leaſt any Judgements in Law, but at moſt only preparatives, to more ſerious, ſolemn, and judicious things that are to follow them; for what at moſt are they, or can they in Law be called or ſtiled? can they in any ſenſe be ſtiled Judgements? No, its impoſſible: becauſe they are no ſuch things in themſelves; for I reſolve to go to ſuch a place, on ſuch a day; and it may be within an hour after, I reſolve to the contrary; is this a Judgement? No: Vantrump the Dutch Admiral reſolved at the laſt Sea-fight, or the laſt ſea-fight before that, to beat the Engliſh Navy, but when he came throughly to try it, he was not able to do it: was therefore his reſolve a Judgement, or the act of beating the Engliſh Fleet ever the more done becauſe he reſolved it? No: and therefore John Lilburn Gent. the now priſoner at the Bar ſaith again, That a Reſolve at moſt is but a preparative to the doing or perfecting of a more ſolemn act: as for inſtance, a vicious man reſolves to lye with his neighbours wife, is that an act therefore ever the more done, becauſe he reſolves it? No: for it may be for all his reſolve he will never be able to accompliſh it, or do the act whiles he breaths. Again, the Lord himſelf in Exod. 32. reſolved to deſtroy and root out the children of Iſrael for making them a golden Calf, and worſhipping it, when Moſes was in the Mountain, yet that reſolve never came to a Judgement, nor never was executed. Again, David in the ſecond of Samuel and the ſeventeenth, reſolved to build God a houſe, yet God would not let it be done by him (becauſe he was a man of blood) but it was done by his ſon Solomon: was that reſolve therefore a Judgement; or ever the more to be eſteemed ſo, becauſe David reſolved it? no, not in the leaſt.
And the priſoner at the Bar further ſaith, that it is in Law, Equity or Reaſon impoſſible, that a Judgement in any legal Court of England ſhould be paſt againſt a free-born Engliſhman, and that man dayly forth coming, and never to hear, read, nor ſee any of the proceedings anteceding the ſaid Judgement: and never ſummoned by any legal proceſſes to any legal proceedings; nor called to any legal Bar whatſoever, and demanded (according to Law) what he could ſay for himſelf, why Judgement ſhould not be paſt againſt him. Neither did the priſoner John Lilburn now at the Bar, ever in all his life time, by kneeling at the Bar of the Parliament of the Commonwealth of England lately ſitting at Weſtminſter, ever acknowledge that the ſaid Parliament in Law ever had in all their life times, any the leaſt juriſdiction in the world, to ſentence him in any kinde, or to fine, impriſon or baniſh him, or any other free-born Engliſhman of England, though never ſo mean (that are none of their members or immediate officers) for any crimes whatſoever; which is not by Law in the leaſt within their power, upon any pretence whatſoever: As John Lilburn the priſoner at the Bar hath fully and undenyably proved by Law in his Plea (upon the Writ of Habeas Corpus) before the late Judges of the Kings Bench; viz.3 Judge Bacon and Judge Rolls, upon the eighth of May, 1648. as in that printed Law-Argument Entituled The Laws funeral, it is fully to be read, in pag. 8, 9, 10, 11. All crimes whatſoever being for him, onely and ſolely to be heard, determined, and judged at the Common Law and nowhere elſe, all treaſons being only to be tryed at the Common law, by a Jury of twelve legal men of the neighbourhood, as expreſly appeareth by the Statute of 1 Hen. 4. chap. 10. and the 1 of May chap. 1. & 2 of Mary chap. 10. and ſo are all miſdemeanours or breaches of peace, though it be in affronting, beating, or wounding (which is much more then by papers diſgracing) any Parliamentman, for thats expreſly to be tryed by the Kings (or now as it is called upper) bench, as clearly appears by the fifth of Hen. 4. chap. 6. and the 11. of Hen. 6. cha. 11. Yea although a Sheriff by law is to pay a hundred pound to the King, or now as they are called, To the Keepers of the Liberties of England, and to ſuffer a yeers impriſonment, &c. without Baile or Mainepriſe, for every falſe return of a Knight of the ſhire that he makes, yet by law, the Houſe of Commons in former time, were not in the leaſt to be Judges in this very buſineſs, ſo immediately concerning themſelves; but it ſhall be examined and tryed before the Juſtices of Aſſizes in the Seſſions of the Aſſize, as appeareth by the 8. of Hen. 6. chap. 7. and 23. Hen. 6. chap. 15. Yea the Parliament are not to puniſh thoſe that will not pay them their wages for their ſervice done in Parliament, but the refuſers are to be puniſhed by the legal adminiſters of the law in the ordinary of Courts of Juſtice, as appears by the 23. of Hen. 6. chap. 11. Yea the law of England, which is right reaſon, or as Sir Edward Cooke ſtiles it (in his ſecond part Inſtitutes, folio 179.) the abſolute perfection of reaſon; and which, as he ſaith, is the ſureſt ſanctuary that a man can take, and the ſtrongeſt fortreſs to protect the weakeſt of all; and therefore it is called the beſt birthright the Subjects hath, for thereby his goods, lands, wife, children, his body, life, honour, and eſtimation are protected from injury and wrong; for (ſaith he) to every one of us, there comes a greater inheritance by the law then by our parents, it being the Judges guide in all cauſes that come before them, in the wayes of right Juſtice, which never yet miſguided any man that certainly knew them, and truly followed them, 2 part. of the Lords Cooks Inſtitutes, fol. 56, 63, 97, 526. and the 4. part folio 41. yea and the law-book of Ed. 6. folio 36. with the arguments in the Law in the Court of Kings Bench, upon the Writ of Habeas Corpus in the caſes of Sir John Eliot, Sir Thomas Daniel, &c. pag. 11. in Michaelmas-terme, in the third of the late King Charles, calls the good old fundamental Laws of England, the great inheritance of every ſubject, and the inheritance of inheritances; without the injoyments of which inheritance, we have no inheritance at all. And therefore the ſaid Oracle of the Law of England, the Lord Cook, doth bitterly cry out of the unexpreſſible miſchief that accrues to the whole body of the people of England, when any fundamental maximes of their good old fundamental Laws are invaded or incroached upon, either by Parliament, or any other power whatſoever, as appears in his 2 part Inſtitutes folio 29, 46, 48, 51 74, 103, 104, 179, 210, 249, 529, 533, 534, 540. and 3. part fol. 208. & 4. part fol. 41, 196, 197 198. and the preface to the 4. part of the Lord Cookes Reports, where he ſaith the Laws of England conſiſt of three parts, the Common Laws, Cuſtomes, and Acts of Parliament; for any fundamental point of the ancient Common Laws and cuſtoms of the Realm it is a maxime in policy, and a tryal by experience, that the alteration of any of them is more dangerous: for that which hath been refined and perfected by all the wiſeſt men in former ſucceſſion of ages, and proved and approved by continual experience to be good and profitable for the Commonwealth, cannot without great hazard4 and danger to be altered or changed: ſee alſo that old Law-book, called The myrror of Juſtice, page 239.
And which law, as the author of the ancient and excellent law book, called the Doctor and Student, chap. 4.8. is grounded upon ſix foundation, or baſis, viz. the law of reaſon. Secondly, the Law of God. 3. Upon divers general cuſtomes of common utility. 4. On divers principals that be called maximes. 5. On divers particular cuſtomes. 6. On divers Statutes made by the Kings and the Common-councel of the Nation; all which do abhor arbitra•ineſs in the law-proceedings, eſpecially in criminal caſes; and eſpecially it abhors the arbitrary uncertain way of proceedings in Parliaments, the rules of which certainly no man in heaven or earth knoweth (the vileneſs, wickedneſs, and miſcheviouſneſs of which, is ſufficiently demonſtrated in the Lord Cravens late printed caſe.) And ſaith that worthieſt of Engliſh Lawyers Sir Edward Cook, in the Proeme to the third part of his Inſtitutes, It is a miſerable ſervitude or ſlavery, where the law is uncertaine or unknown; and therefore it is that the twenty ninth Chapter of Magna Charta, the Petition of Right, and the Act that aboliſhed the Star-Chamber, expreſly ſaith, That no freeman of England ſhall be taken or impriſoned, or diſſeized of his freehold, or liberties, or free cuſtomes, or be outlawed, or be exiled, but by lawful judgement (of a Jury of twelve ſworn men) of his equals (of the ſame neighbourhood) according to the law of the Land. And that none ſhall be taken (for any crime whatſoever, by any perſon or Court whatſoever) unleſs it be by Indictment or Preſentment of good and lawful people of the ſame neighbourhood, where ſuch Deeds be done, in due manner, or by Proceſs made by Writ original at the Common Law; and that none be put out of his franchiſe or freehold, unleſs he be duly brought in to anſwer, and adjudged of the ſame according to the courſe of the law; and if any thing be done (by any perſons, or courts whatſoever) againſt the tenour of the ſame, it ſhall be void in law, and holden for error: which two laſt Statutes of the Petition of Right, and the Act that abol•ſheth the Star-chamber, doth expreſly and nominally ratifie and confirme the Statute of the 42. of Edward the third, which according to the peoples true fundamental law of England, makes void and null all Acts of Parliament, Ordinances, Orders, Judgements, and Decrees whatſoever, made by any power whatſoever, that are contrary unto, or in diminution of the free people of Englands foreſaid liberties and freedoms of due Proceſs of Law. And the Petition of Right expreſly ſaith, No man whatſoever ſhall be any wayes puniſhed (eſpecially in criminal caſes) but according to the laws and Statutes already eſtabliſhed in the land. And thoſe alſo by the ſaid Petition of Right, and the Statute that aboliſhed the Star-chamber, are preciſely declared to be according to our good old native fundamental rights and liberties, or elſe they are ipſo facto null and void in law; this very thing (or the ſecuring thereof) alone, being the principal and chief declared cauſe of all the late Parliaments, and preſent armies bloodſhed and wars with the late King and his ſon, and without the inviolable preſervation of theſe our fundamental laws and liberties, it is impoſſible that any in the Army, from the higheſt to the loweſt, in the leaſt can acquit themſelves of being juſtly eſteemed, both before God and juſt men, real and wilful murderers of all thoſe perſons that they have ſtaine in the late civil wars; and if ſo, wo unto them when God makes inquiſition for innocent blood.
Neither indeed is he the now priſoner at the Bar guilty of any ſuch high crimes and miſdemeanors as is expreſſed in the ſaid Act; neither ever was he the now priſoner at the Bar in the leaſt duely and legally baniſhed and fined by the ſaid Act; nor yet is a Felon, nor guilty of felony in no manner of reſpect whatſoever, as by the ſaid Inditement5 now read unto him is ſuppoſed: neither can he rationally imagine that by the Parliament that is mentioned in the ſaid Act of the 30 of January 1651. for baniſhing one Lieutenant-Colonel John Lilburn, is in the leaſt meant the late Parliament of the Commonwealth of England ſitting at Weſtminſter, (eſpecially, becauſe it is not ſo therein expreſt) who had taken many Oaths, and paſt abundance of Declarations, and particularly that of the 9 of February 1648. inviolably to maintain the Fundamental Laws of the Land, in reference to the Peoples lives, liberties, and properties, with all things incident, appertaining, and belonging thereunto: But that rather it was ſome ignorant ſottiſh French Parliament ſitting at Paris or elſewhere in France, that underſtand nothing of the Laws, Liberties, and Freedoms of England; or that it was the malignant Cavalier Parliament lately ſitting at Oxford, in the Kings Quarters there, poſt-dating their Act, and thereby endeavouring by the ſaid Act to create ſuch a preſident as in the conſequence of it would deſtroy all the Laws, Liberties, and Properties of the free-born people of England, and thereby abſolutely ſet up the Kings will and prerogative above Law; the bare endeavouring of which, in the Earl of Strafford, hath been long ſince adjudged high treaſon. Or in the next place, it the authors of the ſaid monſtrous and illegal Act of Baniſhment be neither the ignorant Parliament of Paris, nor the Cavalier Parliament of Oxford, Then of neceſſity, in the third place, it cannot in charity and reaſon but be judged that the ſaid Act of Baniſhment was drawn up by Mr. Scobel the Parliaments Clerk, Mr. Hill their Chayr-man, and Mr. Prideaux their Attorney and Poſt-maſter-general, when they were all riding poſt, and ſo jumbled or ſhaken with faſt riding, that it was impoſſible for them to hold their pens to write right and true: and when they had framed it, then by ſome cunning artifice or inchantment of theirs, they preferred it to the ſaid Parliament, who in charity and common reaſon muſt needs be judged to paſs it when they were three quarters aſleep, againſt ſome ſilly natural fool called Lieutenant-Colonel John Lilburn, that could not be imagined ever in his life to have read any thing of Law or Reaſon, it being impoſſible (in the leaſt in reaſon to be conceived) that the late Supreme Authority, the Parliament of the Commonwealth of England ſitting at Weſtminſter, being onely by their own Declarations, but truſted to provide for the peoples weal, but not in the leaſt for their wo, would ever in their right wits, or not being three quarters aſleep, paſs ſuch an Act of Parliament againſt John Lilburn now priſoner at the Bar (who hath much read the Law, and very well underſtands the Fundamental Liberties of England, and hath hazardouſly adventured his life a thouſand cimes, for the inviolable preſerving of them) becauſe ſuch an Act of Parliament as the foreſaid Act of Parliament, is in the firſt place an Act of Parliament againſt common right, common equity, and common reaſon; and therefore is void and null in Law, and ought not to be executed, as appears by theſe following authorities, viz. 1 part of Dr. Bonham's Caſe, fol. 118. and the 8 of Edw. 3. fol. 3, 30, 33. F. Ceſſavit. 32 & 27 H. G. Annuity 41. and 1 Eliz. Dyer, 113. and 1 part Cook's Inſtitutes, lib. 2. Chap. 11. Sect. 209. fol. 140. and 4 Edw. 4.12. and 12 Edw. 4.18. and 1 H. 7.12, 13. and Plowd. Com. fol. 369. and Judge Jenkins learned works in the Law, printed for J. Giles, 1648. but particularly, by his Diſcourſe of Long Parliaments, p. 139, 140. and ſee alſo Mr. W. Prynne's notable book of the 16 of June 1649. called, A Legal Vindication of the Liberties of England againſt illegal Taxes, p. 11, 12, 13, &c. But eſpecially ſee a book intituled The Legal Fundamental Liberties of England revived, aſſerted, and vindicated, printed and reprinted in the yeer 1649 page 54, 55, 56, 57. yea an Act of Parliament that a man ſhall be judge in his own caſe, is a void Act in law, as appears in Hubberts Caſe, fol. 120. and by the 8 part of Cook's Reports, in Dr. Bonham's6 Caſe, and by the preſent Armies own Book of Declarations, p. 35, 52, 54, 59, 60, 61, 63, 132, 141, 142, 143, 144. yea, ſaith that learned Oracle of the Law of England Sir Edw. Cook, in the 4 part of his Inſtitutes, fol. 330. Where Reaſon ceaſeth, there the Law ceaſeth: for, ſeeing Reaſon is the very life and ſpirit of the Law it ſelf, the Law-giver is not to be eſteemed, to reſpect that which hath no reaſon, although the generality of the words, at the firſt ſight, or after the letter, ſeem otherwiſe. And ſaith the ſaid learned Author, in his firſt part Inſtitutes, fol. 140. All Cuſtoms and Preſcriptions, Acts of Parliament, Laws and Judgements, that be againſt Reaſon, are void and null in themſelves. And ſaith the Armies Sollicitor-General, John Cook, in the late Kings Caſe ſtated, p. 23. That by the law of England, any Act or Agreement againſt the Laws of God and Nature, is a meer nullity: for as a man hath no hand in making the Laws of God and Nature, no more hath he power to marre or alter them. And he cites the Earl of Leiceſter's adjudged Caſe for a proof. And in page 20 he alſo ſaith, that all the Judges in England cannot make one Caſe to be Law that is not Reaſon, no more then they can prove an hair to be white that is black: which if they ſhould ſo declare or adjudge, it is a meer nullity: for Law (ſaith he) must be Reaſon adjudged. And therefore ſaith he, page 8. That man or men that rules by luſt, and not by law, is or are creatures that were never of Gods making, nor of Gods approbation, but his permiſſion: and though ſuch men be ſaid to be gods on earth, 'tis in no other ſenſe then the devil is called the god of this world. And excellent to this very purpoſe is that ancient Law-book called The Doctor and Student, who in his ſecond Chapter, pag. 4. expreſly ſayth, Againſt the law of Nature (which he calls the Law of Reaſon) Preſcription, Statute, or Cuſtoms may not prevail: and if any be brought in againſt it, they be no Preſcriptions, Statutes, nor Cuſtoms, but things void, and againſt juſtice. And what this law of Nature or Reaſon is, he excellently ſheweth in the latter end of the fourth page, and the beginning of the fifth: and therefore in pag. 7. he expreſty ſaith, That to every good Law is required theſe properties, viz. That it be honeſt, right wiſe, poſſible in it ſelf, and after the cuſtom of the Country; convenient for the place and time, neceſſary, profitable, and alſo manifeſt that it be not captious by any dark ſentence, nor mixt with any private wealth, but all made for the common good: for (ſaith he) every mans law muſt be conſonant to the Law of God, otherwiſe they are not righteous nor obligatory. All which Judgements or Caſes in Law, in the equitable and rational part of them, are fully confirmed by that commonly reputed able Lawyer Serjeant John Bradſhaw, late Lord Preſident of the high Court of Juſtice againſt King Charles; who in his large Speech to him, and againſt him, printed in the ſecond Edition of his Tryal, and ſold by Peter Cole, Francis Tyton, and John Playford, 1650. from p. 52. to 70. And amongſt other paſſages in p. 55. he hath this: That the end of having Kings or any other Governours, it is for the enjoying of juſtice; that is the end. Now Sir, (ſaith he) if ſo be the King will go contrary to that end, or any other Governour will go contrary to the end of his Government, he muſt underſtand that he is but an Officer in truſt, and he or they ought to diſcharge that truſt, and they are to take order for the animadverſion and puniſhment of ſuch an offending Governour. And in p. 53. he tells the King, That as the Law is his ſuperiour, ſo alſo he tells him there is ſomething that is ſuperiour to the Law, and that is indeed the parent or author of the Law, and that is the people of England: for Sir, as they are thoſe that at the firſt (as other Countries have done) did chuſe to themſelves this form of Government, even for Juſtice ſake, that juſtice might be administred, that peace might be preſerved: ſo that Sir (ſaith he to the King) the people gave Laws to Governours, according to which they ſhould govern: and if thoſe Laws ſhould have proved inconvenient or prejudicial to the Publike, the People had a power in them, and reſerved to themſelves, to alter them as they ſhall ſee cauſe.
7Secondly, ſuch an Act of Parliament as the aforeſaid Act of Baniſhment, is not onely againſt common right, common equity, and common reaſon; but it is abſolutely deſtructive to the very ends of the peoples Truſt conferred upon the Parliament, and ſo the higheſt of treaſons that can be committed. And that it is deſtructive to the ends of the peoples Truſt, clearly appears by the Statutes of 4 Edw. 3. cap. 14 and 16 Edw. 3.10. which expreſly ſaith, that a Parliament at least ſhall be holden once every yeer; and that for the maintenance of the peoples Laws and Liberties, and the redreſs of divers miſchiefs and grievances that daily happen. And ſutable to theſe things are the ends contained in the Writs that ſummon them, and the intentions of thoſe that chuſe the Members and ſend them. And ſutable to this, is the end of the Parliaments ſitting, as the preſent General and his Army in many of their remarkable Declarations have fully declared, againſt the late 11 Members and their accomplices, yea and forced the late Parliament to raze out of their books and Records many wicked and unjuſt things, as they judged them to be, after the Parliament had ſolemnly paſt them, as Votes, Orders, Judgements, and Acts, yea and endeavoured very earneſtly to hang divers of thoſe as Traytors that had executed them, as particularly Alderman Adams, Alderman Langham, Alderman Bunce, with the Lord Maior Sir John Gayre, and divers others. But the greateſt grievances and miſchiefs in the world are by the aforeſaid miſchievous and unjuſt Baniſhing Act eſtabliſhed, ratified, and confirmed: for by it a man is condemned to loſe his liberty and eſtate, and the comforts of this life, and that without any the leaſt crime committed, or accuſation exhibited, or legal Proceſſes iſſued out, to ſummon the party to make any defence in the world, or ever calling or permitting him to ſpeak one word for himſelf; which is an Act or proceeding againſt the light and law of Nature, Reaſon, the Law of God, againſt the law of Honour, Conſcience, and common Honeſty; yea, a dealing worſe with the party, then ever the cruel Jews did with Chriſt, or then the bloody butchers Biſhop Gardner and Bonner did with the roſted Martyrs in Queen Mary's days, who always ſuffered them to have due proceſſes of Law, and to know and ſee their accuſers, and to have free liberty to ſpeak for themſelves; and never condemned them, but for tranſgreſſing a known and declared law in being. Yea, alſo dealing worſe with the party, then ever the bloody Gunpowder-Traytors were dealt with by King James, who always allowed them fair tryals in law, from the beginning to the end, at the Bar of Juſtice for their lives. Yea, it is a worſe dealing with the party, then ever the Parliament themſelves dealt with the bloodieſt and moſt maſſacring Traytors that ever were in Arms againſt them to cut their throats. Yea, the forementioned practice of the foreſaid moſt illegal and unrighteous Act of Baniſhment, is an Act and proceedings in the higheſt ſubverſion of the Fundamental Law and Liberty of England that can be invented or imagined; and by conſequence, if it may without the higheſt offence, or ſoloeciſm in Law be ſuppoſed, that his Excellencie the Lord Gen. Cromwel, Major-Gen. Hariſon, and the reſt of the Members of the late Supreme Authority of the Parliament of the Commonwealth of England ſitting at Weſtm. had any real finger in it, or were actors of it, they may and ought all of them, with all the reſt under them, that have executed any part of the aforeſaid unjuſt, injurious, illegal Act of Parliament, to be apprehended, indicted, and proceeded againſt at the Common Law, as Traytors, and ſubverters of the Fundamental Laws, Liberties, and Freedoms of the free-born people of England; as that learned man in the Laws of England, Sir Edward Cook, in the ſecond, third, and fourth Parts of his Inſtitutes (all three of which are publiſhed by two ſpecial Orders of the late Houſe of Commons, in anno 1641. for good Laws) doth declare and prove was dealt with by Empſon and Dudley8 in leſs caſes then the fore-recited unjuſt act of Baniſhment, and of which ſevere puniſhments thoſe Arbitrary and diſcretionary Judges, viz. Triſilian, Fulthrop, Belknap, Care, Holt, Burge, and Lockton, in Richard the ſeconds time ſufficiently taſted of; as alſo their arbitrary Accomplices, the then Lord Major of London, Sir Simon Burley, Sir William Ellinham, Sir John Salisbury, Sir Thomas Trevit, Sir James Barnis, and Sir Nicholas Dodgworth, ſome of whom were deſtroyed and hanged for ſetting their hands to Judgements in ſubverſion of the peoples fundamental Law and Liberties, in advancing the Kings will above the ſame; yea one of them was baniſhed therefore, although he had a Dagger held unto his very breſt to compel him to ſet his hand thereto. But the two firſt mentioned perſons caſes being the moſt remarkable, the priſoner at the Bar ſhall only at preſent inlarge upon theirs.
Which Caſe of Empſon and Dudley was thus: At the Parliament holden by King, Lords, and Commons, in Henry the ſevenths time, who was an undoubted lawful king of England, and by his marriage of his wife, the Lady Elizabeth, heir apparent to the Houſe of York, as himſelf was to the houſe of Lancaſter, had united the two claimes of Lancaſter and York, in himſelf, and in a pitcht battel had ſlaine King Richard the third the uſurper; and by reaſon of the extraordinary many troubles of his reign, and the ignorant Regal time in which he lived conſidered, he had a thouſand times more grounds to be arbitrary and diſcretionary in his proceedings with the people of England, then the late decapitated Parliament had; yet he ſummoned a free Parliament, who ſate peaceably and quietly, without the force or purging of ſouldiers; and after that ſeveral Juries, at Aſſizes and Seſſions, by corruption and ſavour, had refuſed to finde perſons that were judicially proved guilty before them of breach of penal laws, as in full and free Parliament by King, Lords and Commons, is avowedly declared, an Act of Parliament, (recorded in the fourth part of Cooks Inſtitutes, fol. 40. 41. ) in the 11. of Hen. 7. chap. 3. was paſſed by King, Lords, and Commons, in full and free Parliament, to enable the Juſtices of Aſſize in open Seſſions to be holden before them, and the Juſtices of the Peace in each County in England, upon information for the King before them to be made, to have full power and authority by their diſcretion (without tryals by Juries) to hear and determine all offences and contempts committed againſt penal laws; in all which arbitrary or diſcretional proceedings, murther, treaſon, and felony, was excepted out of their cognizance or juriſdiction; as alſo all other offences whereby any perſon ſhould loſe life, or member, or lands, goods, or chattels to the party complaining. By pretext of which Statute, ſaith the Lord Cook in his laſt recited folio, Empſon and Dudley (privy Councellors and Juſtices of Peace to Henry the ſeventh) did commit upon the ſubject inſufferable preſſures and oppreſſions, which yet at the higheſt was but the taking away ſome ſmall part of the perſons eſtates from them that they condemned. And therefore this Statute was juſtly ſoon after the deceaſe of Henry the ſeventh, repealed at the next Parliament after his deceaſe, by the Statute of the 1 Hen. 8. cha. 6. A good caveat, ſaith he, to Parliaments to leave all cauſes to be meaſured by the golden and ſtreight met-wand of the law, and not to the uncertaine and crooked cord of diſrcetion, for it is not almoſt credible to foreſee, ſaith he, when any maxime, or fundamental law of this realm is altered, as elſewhere in the fourth part of Lord Cooks Reports hath been obſerved, what dangerous inconveniences do follow; which moſt expreſly appeareth by this moſt unjuſt and ſtrange Act of 11 H. 7. for hereby not only Empſon and Dudley themſelves, but ſuch Juſtices of Peace (corrupt men) as they cauſed to be authorized, committed moſt grievous and heavy oppreſſions and exactions, grinding the face of the poor ſubjects by penal laws (be they9 never ſo obſolete or unfit for the time) by information onely, without any preſentment or trial by Jury, being the ancient birthright of the ſubject, but to hear and determine the ſame by their diſcretion, inflicting ſuch penalty, as the Statutes not repealed impoſed: theſe and other like actions and oppreſſions by, or by the means of Empſon and Dudley, and their inſtruments, brought infinite treaſures to the Kings Coffers, whereof the K•ng himſelf in the end, with great grief and compunction repenced, as in another place we have obſerved. This Statute of 11. H. 7. We have recited, and ſhewed the juſt inconveniences thereof, to the end that the l•ke ſhould never hereafter be attempted in any court of Parl•ament; and that others might avoid the fearful end of thoſe two time-ſervers, Emp•on and Dudley Qui corum v•ſtigia inſiſtant, corum exitus per•o•reſcan, that is, thoſe that follow their footſteps may fear the ſame deſtruction that they had, whoſe end in the third part of the Inſtitutes, fol. 208. and the fourth part, fol. 198, 199. may be ſeen, was ſeverally to be Indicted at common law (whoſe Indictments is there to be read) and convicted and executed as traitors, for ſubvert•ng the fundamental laws and liberties of England, viz. trials by Juries, which the Conqueſt of the Rom•n•, Saxons, D•n••, or Normans, could never blot out of the Kalender of Engliſh mens fundamental liberties, but hath from time to time, with the infinite hazards of their lives & bloods been preſerved, as the choiceſt of their Jewels, and as one of their chiefeſt fundamental rights; of whom the ſaid L. Cook in his expoſition of the 29 Ch. of Magn•Charta, in his 2 part Inſtit. fol. 51. upon the words of lex terrae, or the law of the land (where he plentifully ſhews, that no Engliſhman whatſoever, ought, for any Crime whatſoever, in any Court whatſoever, by any power or authority whatſoever, to be tryed but by juries, and due proceſs of law as is before ſhewed, expreſly ſaith, yet againſt the ancient & fundamental las•, & in the face thereof, I finde an Act of Parliament made, ſaith he, that as well juſtices of Aſſize, as Juſtices of Peace (without any finding or preſen•ment by the Verdict of twelve men) upon a bare information for the King, before them made, ſhould have full power and authority by their diſcretions, to hear and determine all offences and contempts committed or done by any perſon or perſons, againſt the forme, ordinance and effect of any Statute made and not repeal•d, &c. by colour of which Act, ſhaking this fundamental law, it is not cred•ble what horrible oppreſſions and exaction, to the undoing infinite numbers of people, were committed by Sir Richard Empſon knight, and Edmund Dudley, being Juſtices of the Peace, throughout England, upon this unjuſt and injurious Act (as commonly in like caſes•t falleth out) a new office was erected, and they made maſters of the Kings forfeitures. But at the Parliament, holden•n the firſt yeer of Henry the eighth, This Act of the 11. of H•nry the ſeventh is rejected, and made void, and repeater, and the reaſon thereof is yeelded, for that by force of the ſaid act it was manifeſtly•nown, that many ſiniſter and crafty feigned forged informations, had been purſued aga•nſt divers of the K•ngs ſubjects, to their great damage and wrong•ul vexations, and ill ſucceſs hereo•: and the fearful ends of the two oppreſſors, ſhould deter others from c•m••tt•ng the l•ke, and ſhould admoniſh Parliaments, that in ſtead of the ordinary and precious trial per legem terrae, by the law of the land, they bring not in abſolute an partial trial by diſcretion. And in the fourth part of his Inſtitutes, folio 37. he expreſly ſaith. That he findes an Attainder by Parliament of a ſubject (viz. Thomas Cromwel, then Earle of Eſſex) of high treaſon, who was committed to the Tower, and thereby forth coming to be heard, and yet was never called to anſwer in any of the Houſes of Parliament. Of the manner of which proceedings, he thus ſaith, Auſ••a〈◊〉, ſi poteſt, ſi non, ut cunque ſilontiam legat, That is, let the Parl•aments crime be buried in10 oblivion if it be poſſible, and if not, nevertheleſs yet let it give place to ſilence for the preſent; for ſaith he, The more high and abſolute the juriſdiction of Court is, the more juſt and honorable it ought to be in the proceeding, and to give examples of juſtice to inferior Courts. And fol. 38. He is confidently perſwaded, that the rehearſeal of this unjuſt Attainder will hereafter cauſe the Honorable Members of both Houſes of Parliament to be ſo tender of their duty in perſerving the fundamental Laws and Liberties of the people of England, as that never hereafter ſuch an unjuſt Attainder ſhall be brought, where the party is forth coming to condemn him without hearing of him. And conſonant unto this, is the Scripture, and the Law of God therein contained, as appears by the third of Gen verſ. 9. where God after Adam had tranſgreſſed his law, ſummons him before him to anſwer for himſelf, before he would paſs judgement againſt him. And when Sodom had abominably defiled its wayes with the height of wickedneſs, yet the juſt God of heaven and earth would not judge, condemne, or paſs ſentence againſt them, till he went down to ſee whether they have done altogether according to the cry that is come up againſt them or not and ſaith God, I will know, Gen. 18 and Deut. 17.6.11. and Chap. 20.15. God ſaith expreſly, One witneſs ſhall not riſe againſt a man for any iniquity, or for any ſin, in any ſin that he ſinneth; at the mouth of two witneſſes, or at the mouth of three witneſſes ſhall the matter be eſtabliſhed. And by the hand of Moſes he required the people of Iſrael to do according to the ſentence of the Law, and the judgement which ſhall be given thereupon, and not to decline from the law and the judgement which ſhall be given thereupon, and not to decline from the Law to the right hand or to the left. And ſuitable to this, is the judicial and legal proceedings of the great congregation of the children of Iſrael (conſiſting to the number of four thouſand able men) in the caſe of the Levite, and his raviſhed and ſlain concubine, who in their judicial proceedings in that caſe, firſt demanded of him how ſo great a wickedneſs came to be committed in Iſrael. And the concluſion, after their hearing and examining the cauſe, was, to conſider, conſult, and then to give ſentence. And ſaith Nicodemus that learned man in the law of God, againſt the Scribes and Phariſees in behalf of Chriſt, Doth our law judge any man before it hear him and know what he doth? John 7.51. And ſaith Feſtus the heathen Roman Governour in Judea, that had no other guide to walk by, but the light and Law of Nature, In the behalf of Paul, againſt his bloody enemies, It is not the manner of the Romans to deliver any one to dye, before that he which is accuſed have the accuſers face to face, and have licenſe to anſwer for himſelf concerning the crime laid againſt him, Acts 25.16. And ſaith righteous Paul, who writ the Oracles of God infallibly by the Spirit of God, Where there is no law, there is nor can be no tranſgreſſion, Rom. 4.15. But ſaith that judicious and learned Lawyer Sir Edward Cook in the third part of his Inſtitutes, folio 35. of Rhadamanthus, that cruel and wicked Judge of hell:
Firſt, he puniſheth before he hears (like the late Parliament) and when he doth hear the denial, then he compels the party accuſed by torture to confeſs it: but, ſaith he, far otherwiſe doth Almighty God proceed; for after that the guilty perſon is accuſed, he calls, he examines, and then judges or condemns, Luk. 16.1, 2. But in his fourth part Inſtitutes, he proceeds and goeth on, and ſaith in his laſt fore-recited folio, As evil was the proceedings in Parliament, in the ſecond of Henry the 6. Number 18. againſt Sir John Mortimer, the third ſon of Edmund the ſecond Earle of Marſh (deſcended from Lionel Duke of Clarence) who was Indicted of high treaſon, for certaine words, which Indictment (without any arraignment or pleading) being meerly feigned to blemiſh the title of the Mortimers, and withall being inſufficient11 in law, as by the ſame appeareth, was confirmed by authority of Parliament, and the ſaid Sir John being brought into the Parliament, without arraignment and anſwer, judgement in Parliament was given againſt him upon the ſaid Indictment, that he ſhould be carried to the Tower of London, and drawn through the City to Tiburn, and there hanged, drawn and quartered, his head to be ſet on London-bridge, his four quarters on the four gates of London, as by the Record of Parliament appeareth. And therefore, in the next folio, being folio 39. he ſaith, that whereas by order of Law, a man cannot be attainted of high treaſon, unleſs the offence be in law high treaſon: he ought not to be attained by general 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 honorable Court of Juſtice, and ought (as hath been ſaid) to give examples to inferior Courts. And further, to ſhew that Parliaments (which in their right conſtitution are the beſt conſervators of our laws and liberties) are erroneous things (when they walk by their own wills) and forſake their true and only guide, the fundamental laws of England) What need there any more inſtances then many of the Armies own Declarations, in ſeveral of which and their frequent diſcourſes they have declared the late Parliament a traiterous Parliament, breakers of their truſt, and imbroylers of the Nation in bloody wars, and ſubverters of the peoples liberties and freedomes; yea, and in the concluſion, the Lord General Cromwel himſelf, and Major Gen. Hariſon, with their own hands have pulled them out by the ears, and pluckt them up by the very roots, as final breakers of their truſt; and as a pack of the vileſt knaves and villaines that ever breathed in England, although they were fenced in, and about by an Act of Parliament made before the wars, by King, Lords, and Commons, in the ſeventeenth of the raigne of the late King (being in the yeer 1641) that they ſhould not be diſſolved, but by their own free and voluntary conſents. And alſo, ſince they changed the Kingdome into a Commonwealth, by two ſeveral Acts of Parliament of the 14. of May, 1649. and the 17. of July 1649. In which it is expreſly made high treaſon, for any Engliſhman, or men, by writing, printing, or words declaring, or by endeavouring to raiſe or ſtir up force to diſſolve the late Parliament, or their Councel of State, without their own conſents, or to ſay that the ſaid late Parliament or their Councel of State is tyrannical, uſurped, or unlawful, as by the ſaid Acts of Parliament, with reference thereunto being had, more at large doth appear (which Acts are printed in the firſt part of the trial or arraignment of the priſoner at the Bar, at Guild-hall, Oct. 1649. pag. 86, 87 ▪ 88, 89. the firſt of which Acts, viz. that of the 14. of May, 1649. thus followeth Verbatim.
An Act Declaring what offences ſhall be adjudged Treaſon.
WHereas the Parliament hath aboliſhed the the Kingly Office in England and Ireland, and in the Dominions and Territories thereunto belonging; and hath reſolved and declared, that the people ſhall for the future be govern•d by its own Repreſentatives, or national meetings in councel, choſen and intruſted by them for that purpoſe, hath ſe•tled the Government in the way of a Commonwealth and free State, without King or Houſe of Lords; Be it Enacted by this preſent Parliament, and by the Authority of the ſame, That if any perſon ſhall maliciouſly or adviſedly publiſh, by writing, printing, or openly declaring, That the ſaid Government is tyrannical, uſurped, or unlawful; or that the Commons12 in Parliament aſſembled are not the Supream Authority of this Nation; or ſhall plot, contrive, or indeavor o•ſtir up, or raiſe force againſt the preſent government, o•for the ſubverſion or alteration of the ſ•m•, and ſhall declare the ſame by any o••n de•d, that then every ſuch ofence ſhal be taken, deemed, and adjudged by the Authority of this Parliament to b•high treaſon. And whereas the Keepers of the liberties of England, and the councel of State, conſtruted, and•o be f•om time to time conſti•ut••by A••uo•…y of Parliam•nt are to be under the ſaid R•preſentatives in Parliament,•n•u•…for the ma•n•…ce of the ſaid government, with ſeveral powers and Authorities limited, given and appo•nt•d unto th•m by the Parliament; Be〈◊〉likewiſe Enacted by the authority aforeſaid, that•f any perſon ſhall maliciouſly and adviſedly•o or indeavor the ſubverſion of the ſaid Keepers of the liberties of England or the Counc•l of State, and the ſame ſhall declare by any op•n De•d, o•ſhall move any perſon o•p••ſons fo•the do•ng ther•of, or ſtir up the people to riſe againſt them, or eith•r of them, the•…or ei•her of〈◊〉au•horities, That then every ſum off•nc•and off•nces ſhall be tak•n, d••med and a clored to be high treaſon, And w••as the Parliam•n•for their juſt and lawful def•nce, hath raiſed, levied the Army and fo••es now under the command of Thomas Lord Fairfax, and are a•preſent neceſſitated, by reaſon of the manifold diſtractions with•n this commonwealth, and invaſions threatned from abroad,•o continue the ſame, which under God muſt be the inſtrumental means of preſerving the well-afflicted p•opl•of this Na••on in peace and ſafe•y, Be it further Enacted by the aut•o•i•y aforeſaid, that if any perſon,•o being an Officer, Souldier, o•Member of the Army, ſhall•o, contrive, o•indeavour to ſtir up any mutiny in the ſaid Army, or withdraw any Souldiers o•Officers from their obedience to their ſuper•ou•Officers, o•from the preſ•nt Governm•nt as afo••ſaid; o•ſhall procure, invite, and, o•aſſiſt any fo•raigners or ſtrangers to invade England o•Ireland: or ſhall adhere•o any forces raiſed by the enemies of the Parliamen•or Common wealth, o•keepers of the Liberty of England: Or if any perſon ſhall counterfeit the Great Seal of England (for the time being) uſed and appointed by authority of Parliament, That th•n every•uch offence and off•nces ſhall be taken, deemed, and declared by the authority of this Parliam•nt to be high-treaſon; and every ſuch perſon ſhall ſuffer pains of death, and alſo forfeit un•o the Keepers of the Liber•y of England, to and for the uſe of the Commonwealth, all and ſingular his and their lands, ten•m•n•s, and hereditament, goods and chattels, as in c•ſ•of high-treaſon hath been uſed by the Laws and Statutes of••is land to be forfeit and loſt. Provided always, that no perſons ſhall be indicted and arraign•d for any of the off•nces mentioned in this Act, unleſs ſuch offenders ſhall be indicted or proſecuted for the ſame within one yeer after the offence committed.
London, Printed by Edw. Husband & John Field, Printers to the Parl. of England. 1649
And the ſaid John Lilburn, now priſoner at the Bar, for further Plea ſaith, that for ſuppoſed violating thoſe two laſt fore-mentioned Acts of Parliament, and that but for ſuppoſed words, and for the ſuppoſed comp•ling, writing, and cauſed to be printed Arguments, founded and grounded upon the known and declared fundamental laws of England, received principles of Reaſon, and the Armies own pr•nted and publ•ſhed Declarations, he the ſaid John Lilburn, now priſoner at the bar, was arra•gned and•ndicted as a Traytor for his lite at Guild-hall London, in October 1649. and that principally by the inſt•gation and means of his Excellencie the preſent Lord General Cromwel: which Tryal was with that violence and fury, that the ſaid priſoner at the Bar was abſolutely denyed the declared benefit of the known laws of England, viz.13 the help of Counſel learned in the Law, and a copie of his Charge and Indictment, which were not denied, but granted to the Lord Mocqu••, that grand••ſh••be; and thoſe Arch-trayt•rs, as the yeare commonly called, Scraſſo•c, Can•••bury, Hamilton, and Cap•l, &c. which alſo was granted to the priſoner at Bar as his right by Law, when he was pr•••ner a•O•fo••, and a••agned by judge Heart, &c. for his l••as a traytor So that the ſaid John Lilburn now priſoner at the bar, conſidering, the ſeveral penalties declared to be due to any perſon or perſons whatſoever, that by force or otherwiſe ſhould but endeavour to diſſolve the late Parliament or their Councel of State,•e cannot either in Reaſon or Law ſee or apprehend which way his Excellency the ſaid Lord General Cromw•l, and Major General Ha•ſon, &c. if they continue and perſevere as they have begun, to execute the ſaid unjuſt and injurious Act of Parliament upon the ſaid Jo•n Lilbu•n priſoner at the Bar, (which is one of the moſt wickedſt and unjuſt that ever the Parliament in their lives made, and of the higheſt and moſt notorious acts of their breach of truſt that ever they committed, as is before fully proved) can•n the leaſt, either before God or men, acquit themſelves of being guilty of the higheſt of treaſon, both by the letter and equity of the two laſt fore-mentioned. Laws lately made in part by themſelves, but principally by their inſtigation, in forcibly diſſolving the late Parliament, againſt their own voluntary wills and conſents.
Therefore John Lilburn, the now priſoner at the bar, for further plea ſaith, That it is moſt juſt, equitable, and reaſonable, to indict, arraign, condemn, and execute the foreſaid declared Parliament Traytors, Olive•Cromwel Eſquire, Captain General, and Mr. Thomas Hariſon, commonly called Major-General Hariſon, before the priſoner at the bar be indicted, arraigned, condemned, and executed, for being a ſuppoſed Parliament felon, eſpecially conſidering their tran•greſſions is a fact committed after the declaring, printing, and divulging of a viſible and plain Law; and a•the priſoner at the Bar's ſuppoſed crime is for a fact done before there was a Law in being, as in ſearching into the bottom of the whole illegal proceedings aga•nſt him will eviden•ly appear. 2. The priſoner at the bar's tran•greſſion, at moſt, is but a ſuppoſed or a real ſcandal of one Member of Parliament, viz. Sir Arthur Haſlerig, in which at moſt he was but of Counſel for Mr. Pr•mate, upon a Petitionary Appeal; which Primate, at the open Bar of the Parliament, freed John Lilburne the now priſoner at the Bar from drawing his ſaid Petition at which the Parliament took the offence, and at whoſe Bar he avowedly layd the draw•ng of it upon another; and yet the priſoner at the Bar muſt be thought worthy to be baniſhed, and robbed by Sir Arthur Hazlerig of all his eſtate, that at the moſt was but an acceſſary to a ſcandal, and Primate the principal, that owned the Petition for his, and juſtified the printing of it by his own order, hath no ſuch puniſhment at all inflicted upon him n•nor yet his Coun•el that he avowed drew it. But the crime of the ſaid Oliver Cromwel Lord General, and Major-Gen. Hariſon, in forcibly d•ſſolving the Parliament, is not onely a ſcandalizing of one Member of Parliament, but of all the Members thereof, as a pack of Rogues, and traytors to their truſt, and thereby fit for nothing, but to be knockt on the head by the enraged people where-ever they meet them, and as unſavoury ſalt, that is good for nothing, but to be pluckt our by the ears, and pluckt up by the roots, and thrown to the dunghil. 3. The Parliaments Laws were either good and juſt, or they were not If good and juſt, why were they that made them pluckt up by the roots, and diſſolved without their free conſents, and that by their hired ſervants, that had no power either in Law or from the people ſo to do, and upon whom out of the peoples moneys they have beſtowed many thouſand pounds gratuities? If they were wicked and unjuſt, why is the baſeſt and vileſt of them endeavoured to be executed14 upon the priſoner at the Bar for ſuppoſed Felony, and that principally by the means of thoſe, that both by the letter and equity of the ſaid Parliaments Laws, are guilty of higheſt of treaſons, in diſſolving the Parliament by force of Arms, without their own free conſents; and who have been, and yet are, the only & principal proſecutors of me the priſoner at the Bar for his life, for returning into the land of his Nativity (againſt the Fundamental Laws & Liberties, which in all his days he never committed the leaſt tranſgreſſion) after he was forced, by reaſon of Sir Arthur Hazlerig's robbing him of all his eſtate, for divers months together, to borrow all the money that bought him bread, and after he had continued about a yeer & a half in conſtant danger of his life, of being murdered beyond the Seas, by the hands of the mad or ranting Cavaliers, by the cunning artifice and deſignes of the penſioned Agents of ſome of the principalleſt of thoſe that moſt in Parliament ſtudied his Baniſhment, yet in which Act that they pretend to baniſh one Lieut. Col. John Lilburn by, there is no crime of Law at all in Law layd unto the ſayd Lieut. Col. John Lilburn's charge (generals being no crimes in law, nor ſignifie nothing, as fully appears by the Lord Cook's ſecond part of his Inſtitutes, fol. 52, 315, 318, 590, 591, 615, 616. and third part, fol. 12, 13, 14. and fourth part, fol. 39, 333, 334.) as appears by the Act it ſelf, which thus verbatim followeth.
An Act for the execution of a Judgement given in Parliament againſt Lieut. Col. JOHN LILBƲRNE.
WHereas upon the fifteenth day of January, in the yeer of our Lord One thouſand ſix hundred fifty one, Judgement was given in Parliament againſt the ſaid Lieut. Col. John Lilburn, for high Crimes and Miſdemeanours by him committed, relating to a falſe, malicious, and ſcandalous Petition heretofore preſented to the Parliament by one Joſiah Primate of London Leather ſeller, as by the due proceedings had upon the ſaid Petition, and the Judgement thereupon given, at large appeareth: Be it therefore Enacted by this preſent Parliament, and by the authority of the ſame, That the Fine of three thouſand pounds impoſed upon the ſaid John Lilburn to the uſe of the Commonwealth, by the Judgement aforeſaid, ſhall be forthwith levied by due Proces of Law to the uſe of the commonwealth accordingly. And be it further enacted, That the ſum of two thouſand pounds impoſed by the ſaid Judgement upon the ſaid John Lilburn, to be paid to James Ruſſel, Edw. Winſlow, William Molins, and Arthur Squib, in the ſaid Judgement named, that is to ſay, to each of them five hundred pounds for their damages, ſhall be forthwith paid accordingly: And that the ſaid Sir Arthur Hazlerig, James Ruſſel, Edw. Winſlow, William Molins, and Arthur Squib, their Executors and Adminiſtrators, ſhall have the like remedy and proceedings at Law reſpectively againſt the ſaid John Lilburn, his Heirs, Executors, Adminiſtrators and Aſſignes, for the recovery of the ſaid reſpective ſums ſo given to them by the ſaid Judgment, as if the ſaid reſpective ſums had been due by ſeveral Recognizances in the nature of a Statute-ſtaple acknowledged unto them ſeverally by the ſaid John Lilburn upon the ſaid 15 day of January 1651. And be it likewiſe enacted by the authority aforeſaid, that the ſaid John Lilburn ſhall within twenty days, to be accounted from the ſaid fifteenth day of January 1651. depart out of England, Scotland, Ireland, and the Iſlands, Territories, or Dominions thereof. And in caſe the ſaid John Lilburn, at any time after the expiration of the ſaid twenty days to be accounted as aforeſaid, ſhall be found or ſhall be remaining within England, Scotland, Ireland, or within any of the Iſlands, Territories, or Dominions thereof the ſaid John Lilburn ſhall be, and is hereby adjudged a Felon, and ſhall be executed as a Felon, without benefit of Clergie. And it is laſtly enacted by the Authority aforeſaid,〈◊〉all and〈…〉and perſons who ſhall after the expiration of the ſaid twenty days accordingly relieve,15 harbour, or conceal the ſaid John Lilburn, he being in England, Scotland, or Ireland, or any of the Territories, Iſlands, or Dominions thereof, ſhall be hereby adjudged acceſſary of Felony after the fact. And all Judges, Juſtices, Maiors, Bayliffs, Sheriffs, and all other Officers, as well Military as Civil, in their reſpective places, are hereby required to be aiding and aſſiſt•ng in apprehending the ſaid John Lilburn.
Fourthly, the priſoner at the Bar's return into England tends not in the leaſt to the diſturbance of the publike peace, quietneſs, or tranquillity of the Nation, nor to the deſtruction and overthrow of all the Peoples Fundamental liberties and freedoms; and therefore no reaſons at all can be drawn from publike utility or profit to try me John Lilburn now priſoner at the bar for his life as a Felon, upon the unjuſt letter of a void Act of Parliament. But as for the ſaid Generals, and the ſaid Major-General Hariſons diſſolving the late Parliament by force, againſt their own conſents, and thereby againſt ſeveral Acts of Parliament afore mentioned (partly of their own making) committing high-treaſon againſt the apparent letter of a known, printed, and declared Law, before their fact committed; out of which evil action (as it is in it ſelf ſimply conſidered) though it be granted, that that God that can and hath brought light out of darkneſs, and order out of confuſion, and good out of evil, may out of it, by his wiſdom, power, and omnipotencie, bring abundance of good to this poor nation of England; yet already it hath viſibly produced this grand miſchief and evil, viz. to give the ſaid General a colourable pretence of a Neceſſity of his own making and creating, to aſſume unto himſelf all the Civil powers in the Nation into his own hands; and thereby not onely to make ſlaves (if he pleaſe) of all his own private ſouldiers, in ſubjecting them to Tryals for their lives by Military or arbitrary Diſcipline in times of peace, when all the Courts of Juſtice for adminiſtring the Law are or ought to be open, which is expreſly againſt the Petition of Right, and the declared end wherefore the Wars were engaged in againſt the late King; but alſo of the free people of England, that have fought as heartily and faithfully for the preſervation of their Liberties and Freedoms as himſelf, who have already thereby loſt two of the chiefeſt of their fundamental rights and freedoms, viz.
Firſt, to have Taxes layd upon them by the General, with the advice of his Military Officers, all of whom at moſt are but the peoples hired and payd ſervants, to kill the Weaſels and Polecats that would deſtroy their Liberties; which is not onely contrary to the expreſs tenour of that moſt excellent Law (as the late Parliament, in their remarkable Declaration of March 17. 1648. calls it) of the Petition of Right, which expreſly ſayth, That no Taxes, Ayds, or Contributions whatever, ſhall by any perſon or perſons, or any Authority whatſoever, be layd or levyrd upon the people, but by common conſent of their choſen Deputies or Truſtees in Parliament aſſ•mbled for that end. See alſo the Lord Cooks 4 part Inſtitutes, chap. High Court of Parliament, fol. 14, 34. and by the Statute made in the late Parliament, in the 17 yeer (being anno 1641) of the late King, intituled, An Act for declaring unlawful and void the late proceedings touching Ship money. The Judgement of the Judges in that caſe is declared null and void, and againſt the right of Proprieties, although their judgements were grounded upon theſe plauſible Queſtions, viz. That when the good and ſafety of the Kingdom in general is concerned, and the whole Kingdom in danger, Whether the King might by writ under the Great Seal of England command all the Subjects of his Kingdom at their charge to provide and furniſh ſuch number of Ships, with Men, Victuals, and Munition, and for ſuch a time16 as the King ſhould think fit, for the defence and ſafeguard of the kingdom from ſuch peril and danger: and, Whether by Law the King might compel the doing thereof, in caſe of refuſal or••f•actari•ſs. And whether that the King (who was then a far more legal Magiſtrate then the Lord General Cromwel now is) were no•the ſol•judge both of the danger, and wi••n and•ow the ſame is to be prevented and avoided. According to which grounds and reaſons, all the juſtices of the ſaid Courts of K•ngs Bench, and Common pleas, and the ſaid Barons of the Exchequer, having been formerly con•ul••d with by his Majeſties command, had ſet their hands to an extrajudicial Opinion expreſſed to the ſame purpoſe, That he might: and yet notwithſtanding all this, thus decreed and adjudged by all the judges, all ſuch Ship-writes and all proceedings thereupon are by King, Lords, and Commons, in full, legal, and free Parliament, declared that they were and are contrary and againſt the Laws and Statutes of this Realm, and the Petition of Right made in the third yeer of the Reign of his Majeſty that then was. And it is there further declared and enacted by the Authority aforeſaid, That all and every the particulars prayed or deſired in the ſaid Petition of Right, ſhall from henceforth be put in execution accordingly, and ſhall be firmly and ſtrictly holden and obſerved, as in the ſame Petition they are prayed and expreſſed: And that all the ſaid Judgements and Proceedings about the ſaid Ship money be vacated and cancelled. One of the makers of which Law was the ſaid Oliver Cromwel, now Lord General, and alſo one of the impeachers of the ſaid Ship money-Judges of high-treaſon, for arbitrary ſubverters of the free people of England's fundamental Laws, Liberties, and Proprieties.
Secondly, the General, with whom of his Officers by his will he is pleaſed to joyn with him, hath not onely by their late forcible diſſolving of the late Parliament, aſſumed the whole Civil power of the Nation into his own hands; by means of which already, by his Declaration with the advice of his Office•s, of the 9 of June 1653. he hath arbitrarily layd a Tax of Sixſcore thouſand pounds per month upon the free people of England, by which all their proprieties are confounded and deſtroyed. For, by the ſame Rule that he lays Sixſcore thouſand pounds Tax a month upon the people, he may (when he pleaſeth) lay ſix Millions a month upon them, and ſo ad infinitum; and ingroſs into his own coffers and hands, and his Officers, not onely all the peoples treaſure, but alſo their whole lands and eſtates, as Joſeph did the ſlaviſh Egyptians unto Pharaoh, Gen 47. but that which is worſe, he hath not onely there by created a preſident to deſtroy all their proprieties, but his chuſing the people Legiſlators or Law-makers, (though it's poſſible the men may prove in their actions the juſteſt men in the Nation) and denying thoſe that never forfeited their Liberties in their lives, that inherent and natural right, he hath created a preſident to deſtroy their Laws, Liberties, and Lives, and abſolutely ſubject them to his will and mercy: which crimes put together, are in the eye of the Law the higheſt Treaſon that ever I read any tranſgreſſor in the Nation charged with, ever ſince it became a Politick Society or Nation, and an act that the higheſt of three Tyrants or Conquerors, either under the Romanes, Saxons, Danes, or Normans, durſt never attempt to put in execution: By means of which, he hath given away the juſt and honeſt Cauſe betwixt the King and Parliament, and done as much as in him hath to make all thoſe murderers that have ſince the beginning of the late Civil war engaged in the Parliament-quarrel againſt the late King, his actions as evidently as the•un declaring it was not in the leaſt for the ſecuring of the peoples incroached upon Liberties and Freedoms, that he and his accomplices took up Arms againſt the King for, but to pull him out of his Throne, ſlay him, and divide his inheritance amongſt him and his accomplices, and then to ſet up his luſt, will, and pleaſure, as the peoples ſtanding Laws. By which apparent, and in the face of the•un avowed practices of his, he hath all over the Chriſtian world brought more ſcorn and contempt upon the zealous profeſſion of God and godlineſs, and all the pretences of ſtrugling for Liberty and Freedom, then any one man that ever I read of•n all the Hiſtories of the world that ever my eyes were fixed upon: yea, and in the doing of the forementioned things, hath given in the face of the ſun the abſolute and perfect lye to himſelf, and all his many printed Declarations, both as he is to be conſidered as a Parliament-man, or as an Officer in Arms. And firſt, conſider him as a Parliament-man, how many Oaths, Covenants, Proteſtations, and Engagements, hath he formerly taken, to maintain the fundamental Laws and Liberties of the people of England; and alſo, after he had cauſed the Parliament to be purged over and over, again and again, and left none to ſit there, but thoſe that then pleaſed his tooth, and by their authority taken away the Kings life, and altered the form of Government nominally into a Commonwealth or free State, did not he and his ſaid friends or Councellors immediately after that publiſh a ſolemn Declaration of Febr. 9. 1648. in theſe very words verbatim.
A Declaration of the Parliament of England, for maintaining the Fundamental Laws of this Nation.
THe Parliament of England now aſſembled doth declare, That they are fully reſolved to maintain, and ſhall and will uphold, preſerve, and keep the fundamental Laws of this Nation, for and concerning the preſervation of the lives, properties, and liberties of the people, with all things incident thereunto, with the alterations touching Kings and Houſe of Lords already reſolved in this preſent Parliament, for the good of the people, and what ſhall be further neceſſary for the perfecting thereof; and do require and expect that all Judges, Juſtices, Sheriffs, and all Officers and miniſters of Juſtice for the time being, do adminiſter juſtice, and do proceed in their reſpective places and Offices accordingly: which reſolution, with the reaſons thereof, ſhall be hereafter publ•ſhed in a larger Declaration touching the ſame. And it is hereby ordered and appointed, that this Declaration ſhall be forthwith proclaimed in Weſtminſter-Hall, and at the Old Exchange: and the Judges in their reſpective Courts at Weſtminſter, and at the firſt ſitting thereof, are to cauſe this Declaration to be publikely read. And the Sheriffs in their ſeveral Counties are to cauſe this Declaration to be likewiſe publiſhed.
London, Printed by Edward Husbands.
Which ſaid Declaration was backed alſo with a large & pithy one, the 17 of March 1648. which expreſſeth the grounds and reaſons of their late proceedings, and ſetling the preſent Government in way of a Free State.
Yea, John Lilburn now priſoner at the bar for his further plea ſaith, That by the Act of the late Parliament intituled, An Act for the aboliſhing the Kingly Office in England and Ireland, and the Dominions thereunto belonging, it is there amongſt other things enacted and declared, that the Office of a King in this Nation ſhall not henceforth reſide in, or be exerciſed by any one ſingle perſon. And that no perſon whatſoever ſhall or may have or hold the office, ſtile, dignity, power, or authority of King of the ſaid Dominions, or any of them, upon pain of high treaſon againſt the Parliament and People of England, to all ſuch ſaid perſons, and to all their aiders, aſſiſters, comforters or abettors.
Now whether or no that the ſaid actions of laying Taxes, and chuſing the people Law makers, be not the abſolute exerciſing the office, dignity, power, and authority of the greateſt King that ever was in England, the priſoner at the Bar ſubmits it to the judgement of the learned Judges of the Law.
And in the laſt forementioned Act, it is further declared and averred, that by the aboliſhing of the Kingly Office, a moſt happie way is made for this Engliſh Nation to return to its juſt and ancient rights of being governed by its own Repreſentatives, or National Meetings in Councel, from time to time choſen and intruſted for that purpoſe by the people. And further it is therefore there reſolved and declared by the Commons aſſembled in Parliament, That they will put a period to the ſitting of this preſent Parliament, and diſſolve the ſame, as ſoon as may poſſibly ſtand with the ſafety of the people that hath betruſted them, & with what is abſolutely neceſſary for the preſerving and upholding the Government now ſetled in the way of a Commonwealth. And that they will carefully provide for the certain meeting chuſing & ſitting of the next and future Repreſentatives, with ſuch other circumſtances of freedom in choice, and equality in diſtribution of Members to be elected thereunto, as ſhall moſt conduce to the laſting freedom and good of this Commonwealth. And in ſeveral other Acts immediately made after the laſt forementioned Acts; and particularly thoſe two Acts of Parliament of the 14 of May and the 17 of June 1649. declaring what offences ſhall be judged treaſon, it is thus expreſſed: Whereas the Parliament hath aboliſhed the Kingly Office in England and Ireland, and in the dominions and territories thereunto belonging, and hath reſolved and declared that the people ſhall for the future be governed by its own Repreſentatives, or National Meetings in Councel, choſen and intruſted by them for that purpoſe.
And the Priſoner at the Bar for further plea in the ſecond place ſaith, that his Declarations as a Souldier or Commander to this purpoſe are ſo full as more cannot be ſaid; and particularly that remarkable Declaration of the 14 of June 1647. printed in the Armies Book of Declar. p. 36. 37. &c. in which 37. p. there he poſitively declares that the ſetling of the liberties, and freedoms, and peace of the Nation is the bleſſing of God, then which of all worldly things, nothing (ſay they) is more dear unto us, or more precious in our thoughts; we having hitherto thought all our preſent enjoments (whether of live or livelihood, or neareſt relations) a price but ſufficient to the puchaſe of ſo rich a bleſſing, that we and all the free-borne people of this Nation may ſit downe in quiet under our Vines, and under the glorious adminiſtration of juſtice and righteouſneſs, and in full poſſeſſion of thoſe fundamental rights and liberties, without which we can have little hopes (as to humane conſiderations) to enjoy either any comforts of life, or ſo much as life it ſelf, but at the pleaſures of ſome men ruling meerly according to will and power. And therein, pag. 43. they declared it is their earneſt deſire, that ſome determinate period of time may be ſet for the countinuance of this and future Parliaments, beyond which none ſhall continue, and upon which new Writs may of courſe iſſue out, and new Elections ſucceſſively take place, according to the intent of the Bil for triennial Parliaments; which Bill or Act being one of the firſt Laws paſt by the late Parliament, in the year 1640. Expreſly by name in divers places of it declares it is the undoubted right of the Freeholders, Citizens, and other Free-borne perſons of England, to elect ſuch perſons as they pleaſe for their Repreſentors in the Parliament or Common counſel of the Nation, as at large appears by the Act it ſelf, reference thereunto being had; Unto which the priſoner at the Bar for further confirmation referreth himſelf, and in his, and the Officers of the Armies large Declaration for tryal of the late King, dated at St. Albons November, 1948. they in page 14. 15. thus declare themſelves; that the ſum of the publique intereſt of the Nation, in relation to common right and freedom (which they there a vow to be the chief ſubject of their conteſt with the King) and in oppoſition to tyranny and injuſtice of Kings or others they judge to lye.
Firſt, that all matters of ſupream truſt or concernment to the ſafety and welfare of the whole, they have a common and ſupreme counſel of Parliament, and that (as to he common behalf, who cannot all meet together themſelves) to conſiſt of Deputies or Repreſentors freely choſen by them with as much equality as may be: and after in that Remonſtrance, they have made large Declarations of divers things for the good of the people of England, in pag. 65. they deſired that the Parliament would ſet ſome reaſonable and certain period to their power and ſitting; by which time (ſay they) That great and ſupream truſt repoſed in you, ſhall be returned in•o the hands of the people, from, and for whom you received it, that ſo you may give them ſatisfaction and aſſurance, that what you have contended for againſt the King (for which they have been put to ſo much trouble, coſt, and loſs of blood) hath been onely for their liberties, and common intereſt, and not for your owne perſonal intereſt.
And in the next page, being pag. 66. they vehemently preſs for the equal diſtribution of elections thereunto, to render the houſe of Commons as near as may be, an equal Repreſentative of the whole people electing; and they there alſo preſs, for the eſtabliſhing a certainty for the peoples meeting to elect, and for their full freedome in election, provided that none who have engaged, or ſhall engage in war againſt the right of Parliament and intereſt of the kingdome therein, or have adhered to the enemies thereof, may be capable of electing, or being elected (at leaſt during a competent number of years) nor any other who ſhall oppoſe, or not joyne in agreement to this ſettlement: and in the next pag. being 67. In their firſt head, they deſire liberty of entring diſſents in the ſaid Repreſentatives, that in caſe of corruption, or abuſe in theſe matters of higheſt truſt, the people may be in capacity to know who are free thereof, and who guilty, to the end onely the people may avoid the future truſting of ſuch: and ſutable to theſe heads and others of publique freedome there laid downe, the ſaid General Cromwel and the reſt of his Officers, concluded upon a plat-form of Government, for the ſecuring the future liberties and freedomes of the people in all the aforeſaid concernments; and intituled it, An Agreement prepared for the people of England, and the places there incorporated, which was with ſeriouſneſs preſented by Lieut. General Hamond, Col. Okey, and other Officers of the Army to the Parliament upon the 20 of January 1649. as the ſum of all they had been fighting for, and all that which they deſired to eſtabliſh for the future good of the Nation; as more at large doth appear by the printed Model of the ſaid agreement; reference thereunto being had, and unto which for further ſatisfaction the priſoner at the Bar refers himſelf.
And in the Generals laſt Declaration of April 22 laſt, p. 6. there he declares it his earneſt deſire to reform the Law, and adminiſter juſtice impartially, hoping thereby the people might forget Monarchy; and underſtanding their true intereſt in the election of ſucceſſive Parliaments, may have the Government ſetled upon a true Baſis.
And the priſoner at the Bar for further plea ſaith, That he cannot ſee or apprehend how the ſaid Lord General, or Major-General Hariſon, can, if they continue and perſevere as they have begun, to execute the ſaid unjuſt and injurious Act of Parliament upon the ſaid John Lilburn priſoner at the Bar (which is one of the moſt wicked and unjuſt that ever the Parliament in their lives made, and one of the higheſt and moſt notorious acts of their breach of truſt that ever they committed, as is before fully proved) can in the leaſt, either before God or man, acquit themſelves of being guilty of the higheſt Treaſons, both by the letter and equity of the two fore-mentioned Laws of the 14 of May and the 17 of June 1649. lately made in part by themſelves, but principally by their inſtigators, in forcibly diſſolving the late Parliament againſt their own voluntary wills and conſents; or how they can acquit themſelves in the leaſt, in the eyes of all the underſtanding people in England, to be juſtly eſteemed guilty of plucking up the Parliament by the roots, not in the leaſt for evil, oppreſſion, injuſtice, or breach of truſt they had committed againſt the Nation, or honeſt people thereof, (that never yet in the leaſt, upon their own principles, forfeited their Liberties and Freedoms) but onely becauſe they would deſtroy the Parliament, to have the power in their own hands, thereby to diſpoſe of all the lives, liberties, and proprieties of all the people of England, by then abſolute wills and pleaſures, and to deal worſe and in arbitrarily with the honeſt inhabitants thereof, then any Conqueror that every•n before them did, although themſelves, againſt the late King, have in The K•ng Caſ•ſtated, p. 22. by John Cook their own Atturney-General publikely declared, That Conqueſt is a Title o•Government fit to be exerciſed amongſt Bears and Wolves, but gol••n〈◊〉leaſt among men. And for any to aver us in England to be a conquered Nation, is not onely expreſly againſt the tenour of the Armies many and remarkable Declarations, but it is ſuch an averment, then which there can be none more pregnant and fruitful in Treaſon then it, as Mr. John•ym in his learned and rational printed Argument, by the ſpecial Order of the Houſe of Commons, the 29 of April 1641. againſt the Earl of Strafford, avers. And further, in pag. 6. ſaith, There are few Nations in the world that have not been conquered: and no doubt but the Conquerour may give what Laws he pleaſe to thoſe that are conquered; but if the ſucceeding pac•s and Agreements do not limit and reſtraine that right, what people can be ſecure? England hath been conquered, and Wales hath been conquered; and by this reaſon will be in little better caſe then Ireland: if the King by the right of a Conquerour give Lawes to his people, ſhall not the people by the ſame reaſon be reſtored to the right of the Conquered, to recover their liberty if they can? what can be more hurtfull, more pernicious to both, then ſuch propoſitions as theſe, which muſt needs be moſt truely averred, have no end of blood ſhed and murder, and all the miſeries beſides that tongue can expreſs, or heart can imagine? And it is impoſſible that ever the honeſt people of England ſhould intruſt (as in ſome meaſure they have done) the General and his Officers with the cuſtody, and preſervation of their lives, liberties, freedoms, and proprieties, with any the leaſt intention, that when they had ſubdued their common enemies, they ſhould ſubdue their fundamental laws and rights (for the preſervation of which, the only conteſt with the common enemy was begun) and then give them a law flowing from their uncertain diſcretionary wills and pleaſures. Sure I am, that righteous and juſt David calls thoſe ſons of Belial, and wicked men, that would go about to deprive thoſe that ſtayed with the ſtuff of an equal ſhare in the Conqueſt, even with thoſe that went out to fight, 1 Sam. 30.21, 22, 23, 24, 25. &c. And righteous and juſt Abraham, out of his affection to his brother Lot, ventured his life by fore of Arms, to redeem him from his captivity, and with him redeemed the people of the King of Sodom, and their goods, after they were overthrown in pitcht battel: after which valiant and friendly ſervice, the King of Sodom intreated of Abraham, to give him the perſons, and to take the goods to himſelf: unto which the righteous man anſwers (although the King of Sodom was an al•en and ſtranger to him and all his, and all that he had taken was by our preſent Chriſtian Souldiers Marſhal-law good priz) I have lift up my hand to the Lord (as the preſent General hath often done, and ſolemnly proteſted and ſworn, to make this Nation free and happy) the moſt high God, the poſſeſſor of heaven and earth, that I will not take from a thread even to a ſhoo-latchet, and that I will not take any thing that is thine, leſt thou ſhouldeſt ſay, I have made Abraham rich. And honeſt and Godly (not in word and ſhew, but•n real ſubſtantial actions) Nehemiah, when the cryes of the poor Jews and their wives were very great, by reaſon of the ſword and violence of their adverſaries, and the grinding oppreſſion of their Nobles and great men; Juſt Nehemiah was very angry when he heard the poor peoples cry, and rebuked the Nobles and Rulers for their oppreſſion, and ſet a great aſſembly againſt them; and ſaid unto them, It is not good that you do, ought you not to walk in the fear of our God, becauſe of the reproach of the heathen our enemies? and made them reſtore to the poor people their lands, their Vineyards, their Olive yards, and their houſes, &c. that they had taken by uſury, and oppreſſion from them, in the day of their ſtraites and calamity; and ſo far was that juſt and righteous ſoul in the day of their Warfare, and hot conteſt with their enemies for their liberties and freedomes, from going from a poor and mean condition, to be worth many thouſands a year amongſt them, and to exerciſe more then princely juriſdiction and Lordſhip over them by his will and pleaſures in robbing them of all their ancient, native, fundamental rights and freedomes, that he did the quite contrary: for, ſaith he, when the time came, I was appointed to be their Governour in the land of Judah, from the 20 year to the 32 year of Artaxerxes the King; that is, twelve years I and my Brethren have not eat the bread of the Governours; but the former Governours that had been before me, were chargeable unto the people, and had taken of them bread and wine; beſides forty Shekels of Silver; yea even their ſervants bare rule over the people; but ſo did not I, becauſe of the fear of God; yea alſo I continued in the work of this Wall; neither bought we any land, and all my ſervants were gathered theither unto the Work. Moreover, there were at my Table 150 of the Jewes and Rulers; beſides thoſe that came unto us from among the heathen that are about us: yet for all this required not I the bread or the Govenour, becauſe the bondage was heavy upon the people his brethren and country-men, and therefore in the cleanneſs of his heart, and the integrity of his ſoul he cryes out, Think upon me my God for good, according to all that I have done for this people.
And ſure I am that worthy man in his age, Mr. John Pym in his foreſaid excellent ſpeeches, page 22. ſaith, That ſuch Treaſons as the ſubverſion of fundamental laws, violating of liberties, can never be good or juſtifiable by any circumſtance or occaſion, and therefore by how much the more a truſt is upon a man, or generation of men, by ſo much the more it makes their crime in this kinde to be the more capital and haynous. Therefore to conclude, though John Lilburn the priſoner at the Bar, could and might urge many things more againſt the Parliaments legalleſt power, in all manner of ſpecial acts; or acts of Attainders, the arguments againſt which are excellently ſet down in that rational and highly to be commended plea in law, intituled The laws ſubverſion (pag. 32.) or Sir John Maynards caſe truely ſtated in 1648. by John Houlden Gentleman; and to ſay that a freeman of England by Law may be tryed by a Bill of Attainder, is irrational and unjuſt; for ſuch a proceeding is no tryal, but rather a ſentence, and it is no act of juriſdiction, but an act of the legiſlative power, but no ſentence can be paſt againſt an offender, but by ſome fore-declared viſible, known rule or law; of which the ſuppoſed offender, either actually had, or might have had knowledge. The Law ſaith, invincible ignorance of the Law excuſeth a toto from the whole offence; but ſurely then no judgement can be paſſed juſtly upon any man by a law that was not in being, when his ſuppoſed offence was committed in that caſe; though the fact were in it ſelf evil, yet it were not judicially evil, if no law in the Nation were extent againſt it: and ſo by conſequence a law to puniſh a perſon in that caſe, were a law to deſtroy an innocent man: and whoſoever ſhall duely we•gh the law-giving power, ſhall finde that the eſſential properties of that power is to reſpect things or actions that are to come, not by-paſt, and their no jurisdictions in the leaſt as to puniſh man whatſoever that is not of them; for if my crime whatſoever, which in part is already touched upon in the former part of the Priſoners Plea at the Bar, and alſo the abſolute Irrationality and Illegality, of their making a particular law, or their ſett•ng up of a particular Court, for a particular man: which are notably and rationally diſcuſſed upon, in the ſe•ond Edition of the book Intituled, The Picture of the Councel of State, pag. 45. and the ſecond Ed•tion of The L•gal, Fundamental Liberties of England rec•iv•d, aſſerted, and vindicated, pag. 71 72, 73. For though a Parliament hath power to levie what mony they judge convenient upon the people, by a general tax for common ſafety of the Nation, which Act both by Law and reaſon they may do; yet they cannot in law equity, or reaſon lay all tax upon one, two, or three men alone, and ſo make them bear all the charges of the publick, even ſo though Parliaments may paſs Acts for the good of the People, to adminiſter law indifferently to all the people of England alike, without exception of perſons; yet they can neither by law nor reaſon, paſs a particular Act of Parliament on purpoſe to deſtroy or condemn one, two, or three individual perſons, and which ſhall not in his extent or intention reach any body elſe, becauſe ſuch an Act is againſt common reaſon, common equity, all Engliſh men or people being all borne free equally alike, and the liberties and freedomes thereof being equally intailed to all alike without exception of perſons, and theref•…•…e in common reaſon not to be burthened with an Iron yoak of a particular Act of Parliament, when the univerſalities goeth ſcotfree in that particular
Yea, he might urge many Arguments lawful to prove, that the Parliament was no Parliament: when they paſt the ſaid Act of Baniſhment, but were long before diſſolved, and that by their owne conſents, when the late Parliament took upon them the exerciſe of regality, and the diſſolution of Kingſhip, and the houſe of Lords, as it is notaly endeavoured to be proved, in the late diſcourſe of the Armies champions: as for particularly, one licenſed to be printed for Giles Calvert, and another by Richard Moon at the ſsven ſters in Pauls Church yard; and that it was long ſince diſſolved, by that learned man in the Law of England, Judge Jenkins, renders many reaſons in Law to prove it, as in his works printed for J. Gyles, are to be read, p. 19. 20. 26. 27. 48. 49. 50. 96. 139. 140. 142. 147. But much more full to prove its abſolute diſſolution long ſince, is Mr. Will. Prynne Barreſter at Law, In his Law-Arguments of the 16 of June, 1649. called A Legal vindication of the Liberties of England againſt illegal Taxes and pretended Acts of Parliament, p. 3, 4, 5, 6, &c. and p. 44, 45, 46, &c.
And that the Parl. Acts long ſince in Law diſſolved, the priſoner at the Bar for further plea ſaith, The death of tde King in law indiſpenſibly diſſolved the late Parl. as appears by the expreſs Judgement of the Parl. of 1 H. 4. Rot. Parl. Num. 1. and the Parl. of 14 H. 4. & 1 H. 5. Rot. Parl. N. 26. and 4 part Cooks Iaſt. f. 46. (which book was publiſhed for good Law by two ſpecial Orders of the Houſe of Commons, in an. 1641) and 4 E. 4. 44 b. For the Writ of Summons of the late Parliament, that was directed to the Sheriffs, by vertue of which men were choſen for the laſt Parl. runs in theſe words: King Charles being to have conference and treaty with and upon ſuch a day, about or concerning (as the words of the Triennial Act hath it) and high and urgent affairs, concerning his Majeſtie, the State, and the defence of the kingdom, and Church of England. But how it's poſſible for a Parl. to confer or treat with King Charles now he is dead, is not to be imagined. See 2 H. 5. Cook tit. Parl. 3. and therefore the whole current of the Law of England (yea Reaſon it ſelf) from the beginning to the end, is expreſly, that the Kings death doth ipſo facto diſſolve this late Parliament, though it had been all the time before never ſo entire and unqueſtionable to that very hour. And it muſt needs be ſo, he being in Law, yea and by the authority of this very Parl. ſtiled, The Head, the Beginning, and End of Parliaments. See Cooks 1 part Inſtit. f. 109. b. 110. a. and 4 part Inſt. f. 1, 2, 3. and Mr. Pym's fore-mentioned Speech againſt Strafford, p. 8. and the Lord St. Jo•ns Argum. againſt Strafford, p. 12, 70, 71. and therefore as a Parl. in Law cannot begin without the Kings preſence in it, either by perſon, or repreſentation, Cook ibid. in part 4. fol. 6. ſee alſo Rot. Parl. 25 E. 3. N. 10. ſo it is poſitively diſſolved by his death: for thereby not onely the true declared, but intended end of their aſſembling (which was to treat and confer with King Charles) is ceaſed. See 1 Edw. 6. cap. 7. Cooks 7 Rep. 30, 30. and Dyer 156. & 4 E. 4. f. 43, 44. & 1 E. 5. f. 1. Brooks Commiſſion, 19, 21. and thereby a final end is put unto all the means that are appointed to attain unto the end, and therefore it is as impoſſible for the late Parliament, or any Parliament ſummoned by the King, to be the Parliament in law after his death, as it is for a Parl. to make King Charles alive again. The Kings Writ that ſummoned this Parl. is the baſis in Law, and foundation of this Parl. If the foundation be deſtroyed, the Parl. falls: but the foundation of it, in every circumſtance, is deſtroyed; and therefore the thing built upon that foundation muſt needs fall: it is a Maxime both in Law and Reaſon. But if it be objected, the law of neceſſity required the continuance of the Parliament againſt the letter of the Law. The Priſoner at the Bar anſwers; firſt, its neceſſary to conſider, whether the men that would have it continue as long as they pleaſe, or after it is in Law diſſolved, be not thoſe that have created the neceſſities on purpoſe, that by the colour thereof, they may make themſelves great and potent; and if ſo, then that objection hath no weight, nor by any rules of Juſtice can they be allowed to gain this advantage by their own fault, as to make that a ground of their juſtification, which is a great part of their offence, and that it is true in it ſelf, is ſo obvious to every unbyaſſed knowing eye, it needs no illuſtration. Secondly I anſwer, There can be no neceſſity be pretended, that can be juſtifiable for breach of truſts that are conferred on purpoſe for the redreſs of miſchiefs and grievances, yea to the ſubverſions of Laws and liberties. I am ſure Mr. Pym by the Parliaments command and order told the Earl of Strafford ſo, when he objected the like, and that he was the Kings Counſellor, and might not be queſtion for any thing he adviſed according to his conſcience. But ſaith Mr. Pym p. 11. he that will have the priviledges of a Counſel, muſt keep within the juſt bounds of a Counſellor, thoſe matters are the proper ſubjects of counſel, wihch in their times and occaſions may be good or beneficial to the King or Commonwealth. But ſuch Teaſons as theſe, the ſubverſion of the Laws, violation of liberties, they can never be good or juſtifiable by any circumſtances or occaſions; and therefore ſaith he, his being a Counſellor maketh his fault much more hainous, as being committed againſt a great truſt: and in page 12. he anſwers another excuſe of his which was, that what he did, he did with a good intention. Its true, ſaith Mr. Pym, Some matters that are hurtful and dangerous may he accompanied with ſuch circumſtances, as may make it appear uſeful and convenient, and in all ſuch caſes good intentions will juſttifie evil counſel; but where the matters prepounded are evil in their own nature, ſuch as the matters are with which the Earl of Strafford is charged, viz. to break a publick ſaith to ſubvert laws and Government; they can never be juſtified by any intentions, how ſpecious or good ſoever they pretended; ſee in Mr. Steels anſwer to Duke Hambletons objection in the like caſe, in his caſe ſtated, pag. 12. 13. 14.
The priſoner at the Bar ſhall cloſe all at preſent with this plea, viz. that although by the ſaid unjuſt Act of Baniſhment the Act it ſelf doth authorize all Judges, Maiors, Sheriffs, Bayliffs, and all other Officers, as well Military as Civil, in their reſpective places to be aiding and aſſiſting in apprehending, viz. the ſaid baniſhed Lieut. Col. John Lilburn; yet it authorizeth none of them in the leaſt to arraign, try, condemn, and execute the ſaid John Lilburn mentioned in the ſaid Act: and therefore by reaſon of the inſufficiencie of the ſaid Act in that very particular, although John Lilburn Gent. now priſoner at the bar were that Lieut. Col. John Lilburn mentioned in the ſaid Act of Baniſhment, (as with confidence, for the juſt and legal reaſons at the beginning of this Plea mentioned, he doth a vow he is not) yet in regard the Parliament is diſſolved that made the ſaid Act, which in reaſon (by reaſon of the ſaid inſufficiency of the ſaid Act) cannot otherwiſe be ſuppoſed, but as they paſt the Act of Baniſhment themſelves againſt the John Lilburn therein mentioned and meant; ſo they reſolve to o reſerve onely to themſelves the final judging and condemning of him; which cannot be now without their ſitting again: And that in ſpecial and extraordinary acts of Parliament (as the aforeſaid Act of Baniſhment is) there ought in law to be plain, evident, and full words, (eſpecially when it doth concern life) to demonſtrate and expreſs who ſhall finally put the ſaid Acts in execution. And that this is Law, the ſame Parliament that made the foreſaid Act of Baniſhment doth in ſeveral Acts ſince fully juſtifie this the priſoner at the Bar's averment of ſeveral of their Acts of Parliament, as particularly that of Aug. 2. 1650. intituled, An Act to prohibit all commerce and traffique between England and Scotland, and enjoyn the departure of the Scots ou•of this Commonwealth. In the Preamble or beginning of which, the miſchievous deſignes of the Scotiſh nation are declared, and their compelling of England to make war upon them. In the body of which Act it is declared (for the raking off, as the Act ſaith, all pretence of ignorance) and enacted, That all and every perſon or perſons within this Commonwealth (of England) or the Dominions thereof, that ſhall from and after the 5 of Auguſt 1641 uſe, hold, or maintain any correſpondency or intelligence with any perſon or perſons of the Scotiſh nation, &c. or ſhall abet, aſſiſt, countenance, or encourage the ſaid Scotiſh nation, or any other per•on or perſons adhering to them, in their war againſt the Parliament and Commonwealth of England; or ſhall go o•ſend, or cauſe to be ſent or conveyed any men, mon•ys, horſe, arms, ammunition, or other fu•niture of war, plate, goods, or merchandiſe, or other ſupply whatſoever, in•o Scotland, or any ports or places thereof, &c. all and every ſuch perſon or perſons ſo offending, (without ſuch licenſe as is therein mentioned) ſhall be adjudged as Traytors to this Commonwealth, and ſhall undergo all the pains, penalties, and forfeitures, as in caſe of high-tr•aſon. And although the Scots were at preſent as great enemies to the Parliament, as the Parl. could imagine any perſons in the world could be, and the offences aforementioned of any of them againſt this nation as criminous, and the time as arbitrary a time (being a time of war) as could be imagined; yet the Parliament would be ſo juſt, even to ſtrangers and aliens, and people or a forraign nation, as not to leave them arbitrary for their tranſgreſſions, to be puniſhed by whom were pleaſed firſt to lay hold of it; but in ample and plain words fixeth upon the perſons that are to do it or execute it; therefore the Act expreſly ſaith, The ſame offences ſhall be enquired of, tryed, judged, and determined by the Commiſſioners for the high Court of Juſtice lately eſtabliſhed, in ſuch manner and form as other offences already reſerved to the power and cognizance of that Court are to be hdard and determined. And in the ſecond part of the Act, the makers of it come to declare it treaſon for any perſon or perſons of the Scotiſh nation (without ſuch licenſe as is therein mentioned) to be found within the Lines of Communication after Aug. 10. 1631. And in the third place, the matter of the ſaid Act makes it high treaſon for any perſon or perſons of the Scotiſh nation (without licenſe as is therein mentioned) to ſtay within the limits of the Commonwealth after Sept. 1. 1651. Yet the priſoner at the bar, as he ſaith before, doth now avow, that the ſaid Parl. that made the ſaid Act, would be ſo juſt men unto ſtrangers and aliens, and people of a forraign nation, as not to leave them arbitrary for their tranſgreſſions, to be puniſhed by whom were pleaſed firſt to lay hold on them; but in ample and plain words fixeth upon the perſons that are to do it, or execute it: and therefore the Act again expreſly ſaith, That the ſaid offences and treaſons ſhall be proceeded againſt by the ſaid Commiſſioners of the high Court of Juſtice, who are required to give Judgement and Sentence of death againſt offenders. And every perſon and perſons ſo found guilty of the ſaid offences, ſhall ſuffer the pains of death as traytors and enemies, in ſuch manner as the ſaid Commiſſioners ſhall adjudge and appoint. And the ſame ample and full words as in that ſpecial Act for ſuppreſſing of Inceſt, Adultery, &c. which by plain and evident words doth refer the puniſhment of the offenders therein named to the next Aſſizes or Goal-delivery to be held for the ſaid County where the fact is committed. And the very ſelf-ſame particular words are in the Act intituled An Act againſt ſeveral atheiſtical, blaſphemous, and execrable Opinions derogatory to the honour of God, and deſtructive to humane ſociety, to refer the puniſhment of all the tranſgreſſors thereof at common law before the Juſtices of Aſſize or Goal-delivery, as by the Acts themſelves doth more fully appear; unto which the priſoner at the bar for more ſafety referreth himſelf.
And laſtly, the priſoner at the bar for his final plea ſaith, That Lieut. Col. John Lilburn indicted in the ſaid Indictment now read, is none of the priſoner at the bar's name, and ſo he is not the party mentioned in the ſaid Indictment now read.
All which premiſes he is ready to prove for good Law: and therefore humbly prays the judgement of the Court before he put himſelf upon any further Tryal.