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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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