MUch admired Aristotle (Tutor to the greatest Empe­rour Alexander the great) was of opinion, that the Lawes, [...]. Pol [...]. l. 3. c. 10. p. 10 [...]. 2 [...]. not Kings, Princes, or Magistrates, be they one or more or never so good▪ ought to be sole [...]ords or Rulurs of the Common-wealth, and that Princes and Governours ought to governe by the Lawes, and can [...]ot co [...]mand what the Lawes do not command, and [...]n his judgement those who command that the Law should rule, command th [...]t God should rule but he that commands a man to be a Prince, i. e. to be an absolute Ruler, commands that [...]th a man and beast should be Prince [...] ▪ for [...] and the lust of the mind are br [...]tish affect [...]ons [...] b [...]th Mag [...]strates and the very best of me [...], out the Law [...] a constant a [...]d quiet mind, and reason, [...]o [...]d of all [...] and desire: answerable to this opinion have [...] proceeded in their first Constitution of their Governm [...] ▪ Pelitius saith, that King­domes See [...]. Hist. 6. p. [...]2 [...]. were first erected and [...] on the worthiest men by the free voluntary joynt [...]sent of the people, and founded a [...]d co [...]fi [...]med be Customes and Lawes of each Coun­try, a [...]d th [...]efo [...]e they o [...]l [...]ged their King to conforme their Government unto the Law [...]s established; so Dioderus Si [...]ulus testifies of the Egyptians, that their Kings See Hist. [...]bl. l. [...]. Sect. 20. p. 61, 62, 63. were bound to conforme the Regiment of their Kingdomes and their lives and families to the Lawes establ [...]shed, and were obnoxious to sensures in case of defaults, and Zeneph [...] testifies the same of the Lacedemontans, and zer. d [...] Lace­dem. Repub. p. 690. Licurgu [...] being little lesse then an Oracle in his time, took an Oath every moneth to govern the Kingdome according to the Lawes [...]nacted, and M. T. Ci­cero informes us of the famous Romane State, that the people gave Lawes to all their Magistrates, by which they should order their Government, thus much may be deduced from these words, Imperium in Magistratibus, Authoritatem in S [...] ­ [...]at [...], [...]. pro Rabino. potestatent in plebe, Majestatem in populo, command was in the Magistrates, Authority in the Senate, power in the men [...]all people, and majesty in the people in generall, so Livy hath these words frequently, [...] decre [...], populus jussit, the [Page 2] Senate hath decreed the people commanded, and whoever hath leisure to read Purc [...] pilgrimage and voyages, Peter Martyrs Jud. Hist. Boemus de m [...]ribus Gentium, Strabo, and such other Histories, shall find that the Athenians, Persians, Corin­thians, Medes, and Germanes, Swe [...]es, D [...]nes, &c. prescribed to all their Governours, Lawes and Rules whereb [...] to govern and reserved to themselves Soveraigne power to prescribe farther Lawes and limits to their Kings and M [...]gistrates, and to call them to a publike accompt for their off [...]ces and mis­government, and thus A [...]drew Horne See Me [...]rour of Justice, [...]. 21 p. [...]. an ancient Lawyer informes us, that when the forty Saxon Princes, which for some time r [...]led this Nation, chose to themselves a King, they made him sweare at his [...]n [...]garation, that he should govern the people by rules of Law without regard to the person of any, and that he should be obedient to suffer right as well as any of the people, and at the Coronation of Kings unto this day there is an Oath appointed wherein they s [...]eare See Parlia­ment Dec. of Sep 2. [...] 42. 1 part bo [...]k Dec. p. 712. 713. to keep the Lawes and Customes then established, and to grant and de­fend all such rightfull Lawes as the Commons of the Realme shall choose.

And without controversie this concurrent practise of the Nations in obliging all Magistrates to govern by Lawes only, was founded upon impreg [...]ble reason and equity.

Every Nation is but a rude ind [...]gested, Chaos a deformed lump untill Lawes or rules of Government be established, Lawes are the vi [...] plistica or formatrix that formes the princi­pall vitalls, the heart, the bra [...]ne, the liver of the Common­wealth, as it is such the Law [...]s of every people puts the diffe­rence (as to them) between things judicial [...], just and unju [...], good and evill, the Lawes are the only measure and boundary of every mans right, interest and property, without such rules of Government every mans right to any thing is equall, and every mans t [...]tle to Magistracy or rule r [...]ns parallel with o­ther, therefore when the Lawes of a people are destroyed, and Magistrates exercise dominion over them, as being loose and absolved from all Lawes or Rules of Government, and obnoxious to no censures, then all things returne to confusion, and every mans depraved will become [...] a law to himselfe, and as many as he can subdue by his sword, then iust, envy, malice, covetousnesse and ambition supply the place of Law, and most men must be subject to their Dictates and decisions, th [...] [Page 3] faction, and private interest, exalt and abase, destroy and save alive at their pleasures, then distractions, commotions and bloody massacres overspead the face of a people, and no se­curity remaines to the estates, liberties or lives of the people, more then to the wild beasts of the Forrest.

Now what pu [...]blind eye cannot discerne Englands fa [...]e in this Glasse, are not our Lawes subverted and turned into arbi­trary Decrees and resolutions, every day rising and every day withering like M [...]shromes, and are we not governed by those who conceive themselves absolved from all Lawes or Rules of Government, [...]a are we not governed Jure vago & inc [...], by a leaden [...] Rule, to wh [...]ch we cannot square our obedi­ence, but in [...]st writ untill the Grandees that guide the Legi­slative power, measure our actions for us, or apply the Rule, m [...] we not complaine with the French-men in Lewis the e­leventh▪ tim [...]s that will is law, and law is will, what is now more common then a transgression without a Law, an accu­sation without an Accuser, and imprisonment without a cause rendered, a sentence without a legall Judge, and [...] con­demnation without a legall hearing or triall; who can pro­mise himse [...]fe the least safety either in his life o [...] liberty, unles [...]e h [...]s mind and conscience be ta [...]quam [...]? as a pure table wherein the prevailing faction may freely en­grave the determinations of their wills. I shall not for present endanger the Readers ey [...]s with an uncessant e [...]iux of brinish tea [...]s by relating many of th [...] do [...]efull tragedies really acted upon our Libert [...]s; I shall ooe [...] give you an im­partiall narrative of Sir Iohn Maynards Ca [...]e, and of the wounds which our liberties have received there [...].

And least any shou [...]d view his Case with an e [...] whose pure Christal line humour is vi [...]at [...] with prejud [...], i. [...]me give you a Character of the Gentleman.

1. Sir Iohn was bred a Courtier, and had [...] least the favou­rable aspect, to say no more, of King Iames and the present King Charles▪ yet his priv [...]te ingagements to the Court and his interest there, was to more to h [...]m when the interest of his Countrey stood in comp [...]tition with the Courts, then the [...] wyths 10 Sampson▪ he appeared with undaunted courage with the first that arose to vindicate the Parliaments and the peoples cause, be lent [...]10. pound upon the first Propositions.

[Page 4] 2. As he began with the first, so he persevered without w [...] ­vering when the Parliament was in its most despicable condi­tion, and their Army at the lowest ebbe, when the Army was new moulded, and Sir Thomas Fairfax elected General [...] his endeavours to promote that designe were eminent, he lent 1000. l. and procured 3000. l. more by his influence upon his friends towards that 8000. l. which necessity then required.

[...]. For his demea [...] our in Parliament, there is a cloud of wit­nesses, that according to the Dictates of his cons [...]ence, his en­deavours for common justice were eminent, but above all he was exemplary in opposing the Members mutuall gifts each to other out of the publike treasury, be often inculca­ted that it was illegall that F [...]ofees in trust for the people as the [...] were, should dispose of the publike Treasury amongst themselves, and that it was contrary to their Declarations, and destr [...]ctive to the Souldiery and the desol [...]te Widdowes and Orphans, and that it rendered them infamous, a reproach and scorne amongst all the people and to the adjacent Countreyes▪ if I did not much affect mode [...]y in parties which are Compe­titors, I would in large this Character.

But that which kind led the indignation of L. G. Cromwell and Commissary Gen. Iret [...]n against Sir Iohn, was his declaim­ing against the partiality, ambition, cove [...]ousnesse and injustice of the Grande [...] of the Army, he testified his dislike of that notable peece of injustice that L. G. Cromwells son Ireton being the puny Colonell in the Army should upon the day of Nase­by Battell be advanced above all the Colonells to be Commis­sary Generall, and he imputed it to this injustice that Commis­sary Generall Iretons Regiment, first turned their backs in that Battell, and likewise he testified with some bitternesse his abhorrency of the unworthinesse of some genera [...]l Officers in the Army which lurked in a Wind mill a [...] Nafeby Battell, viz. L. G. Ha [...]mond, Sco [...]t-Master Gen. Wa [...]sen, Muster M. Generall Stanes, and he was a constant sharp Antagonist to the Inde­pendent party, wherein he only followed the Dictates of his cons [...]ence. This without con [...]toversie was the reason, that Sir John was one of the 11. Members impeached by the Army, for L. G. Cromwell confessed at Colebrook that they had no­thing against him, this will be proved by witnesses, but who­soever shall observe the Armies impeachment of the 11. Mem­bers will discerne that there is nothing against Sir Iohn in any [Page 5] of the Articles, unlesse it be where they mingle his name with others, to c [...] ­lour over their conspiracie against him; but Sir Iohn being an active man in the opposite party, there was a necessity to remove such an obstructer of their Empire. And for the Articles of Treason now against him for levying war, I only desire to acquaint the Reader▪ that Sir John offered to produce two Members of Parliament, and other Witnesses, to prove that he was at his house in Su [...]rey five miles from London, when the London-ingagement, vo­ted by the Parliament to be treason, was prosecuted, and likewise when the [...]ult happened which offered force and violence to the Parliament, neither had he set in Parliament during the absence of those Members which fled to the Army, had he not [...]een commanded to attend the House, and by Ordi­nance of Parliament appointed to be of the Committee of Safety.

Now to the stating of his Case.

First, about the [...] of Septemb. last a Warrant issued forth by Order of the House under the Speakers hand, to bring the body of Sir John Maynard to answer to such things as should be objected against him. In the first s [...]ep of their pro [...]eedings, to q [...]estion and prosecute Sir Iohn, they deviated totally from the paths of Law and Justice; and it's no wonder all the progresse towards his [...] is so irregular, the foundation of their proceedings against him is hid upon will, pleasure, or a supposition of an absolute unlimited dominion, if the Law should be acknowledged to be the measure of their proceedings, it's beyond dispute, that the body of no Englishman can be legally arrested, [...] by vertue of any Warrant, wherein some cause is not expressed, [...]d that with [...] certainty and particularity, that it may appeare judicially that the arrest is [...]st: these are the expresse words of Ma [...] Chart [...], That no man shall be t [...]k [...]n, that i [...] arrested▪ or attached, or restrained of his liber­t [...], unl [...]sse it be b [...] i [...]ctment or presentment, &c. and therefore Sir Edward C [...] ▪ f [...]ith, 2. Part. Instit. [...]l. 391. that a Warrant to restraine any person of his liberty, to answer to such things as sh [...]ll be objected against him, is utterly illegall▪ and that very legall Warrant must have a lawfull cause of the per­sons restra [...]nt con [...]ned in it; and if the Law had not thus provided, we we [...] absolute vass [...]l [...]s to the wilis of Magistrates, they might at their plea­sure i [...]u [...] fo [...]th a Warrant to command the person of any man, 30. or 40. [...] distan [...] from [...]hem to be brought before them, to answer such things as shall be objected against him, and when he appeares there may be nothing materiall against him, or no crime p [...]rtaining to the cognizance of that per­son or Court that issued out the W [...]rant, and yet again the same person through private malice might be [...] by the like Warrant, and again also [...] his estate be conf [...]med, or his [...]ad [...] destroyed by such molestations and expences incident [...], and upon the like Warrant every Justice of the Peace might vexe and m [...]iest whom they please: therefore the Law permits [...]or the h [...]hest [...] in England to command [...] [Page 6] despicable Englishman to attend him, or be arrested or brought before him without a legall cause, and his office or authority specified in the Warrant or Processe, and upon this accompt the Parliament declared, July 26. 1642. that it's against the Lawes and Liberties of England, that any of the Subjects should be commanded by the King to attend him at his pleasure, first Booke Tarl. Decl. p. 4 [...]. Now who can distinguish between an absolute command to attend a Court, or Magistrate, and a Warrant to appear before them, with­out a lawfull cause specified? But though the axe is laid to the root of Eng­lands Liberties, by this first Warrant to appeare before them, yet I wish this first stroake had been con [...]ound [...]d with the last, b [...]t they proceeded to cut in sunder the p [...]me roots of [...]reedome.

Secondly, Sir Iohn Maynard obeying M. Speakers illegall Warrant, and at­t [...]nding the Hous [...], M. Miles Corbet made his report concerning him from the Committee, and produced some papers, pretending they were written by Sir John, and thereupon M. Corbet examined Sir J [...]hn upon interrogatories, as whether those papers were written or subscribed by him, and this interroga­tory they doubled and redoubled: Observe reader how they wander in the devious crooked wa [...]es of injustice, when they have fors [...]en the paths of righteousnesse; see the deformity and obliquity of their actions, when they refuse to measure them by the rules of the Lawes established. Was it possible 5. years since to have possessed any ingenious man, that this Parliament would have deviated so far from the rules of law and justice, yea the common light of nature, as to examine any man upon interrogatories against himself in a criminall case? would any have believed that this Parliament should have de­generated so far, as to indeavour to compell a man to destroy himself? Is it not a [...]ddle surpassing all, that this monstro [...]s age hath produced, that this Parliament, that hath deemed the Starre-Chamber and the Councell Table [...] names worthy to be a curse and a by-word [...]o posterity, because of their cru­elty in censuring men for refusing to answer interrogatories, that this Parl. I say, s [...]ould urgently presse Sir Io. Maynard to answer interrogatories against himself in this criminall case? Is it credi [...]le that this Parl. who complained in their first Remonstrance of the state of the Kingdome (1. part Book Dec. p. 8.) [...] upon the people? or that th [...]s [...] [...]ct of [...] ▪ is [...] [...]redible▪ I say, that they [...] [...]ands have destro [...]ed, who c [...]n [...] rather [...]mpute these proceedings to the [...] [...]ohn it seems, resented [...] to answer M. Corbe [...] redoubled Que [...]es, ave [...]ring [...] had better taught him then to [...]st [...] own destruction. I wi [...]h Sir Iohn had kept his ground, [...] defia [...]ce to the in [...]ade [...]s of Englands Liberties in this particular, with as muc [...] [...] hath since manifested in some other particulars of [...] importance: but by [...] estooped beneath h [...]mse [...]fe; F [...]rb [...] their importunity [...]ee ans [...]red their interrogatories negetively, That ne [...]er [...]e papers pr [...]c [...]d, nor th [...] [...]me sub­ [...]

[Page 7] Sir Iohn Maynard humbly moved for a Copy of the Charge brought 3. Liber­ty in­ [...]rieged. into the H [...]use against [...]i [...] b [...] Mr. Corbet, and time and Lib [...]rty to exa­m [...] his own w [...]t [...]ss [...]s by whom [...]e [...]ffered to p [...]v [...] the falsity of the most m [...]ria [...]l things obj [...]cted against him.

But such was the rigour of the prosecute [...]s and Ju [...]e (for they went one a [...]d the same) that Magna Charta, P [...]i [...]n of Right, the Stat­tute o [...] 37. [...]dw: 3. 18. and the Statute 38. Edw: 3. and the 42. Edw: 3 3. not one, [...]o [...]all of these, could either by their glittering bea [...]es of Ju­stice a [...]lu [...] them, or by an awfu [...]l Majesty constraine them, to preserve inviolate this Na [...]ive Liber [...]y, though the recited sta [...]ute say expresly, that no man shal [...] be taken &c. nor disfrienged of his Free-h [...]uld; but by the lawfull Judgement of his Peers, or by the Law of the Land: that is, by being brought to answer by due proces [...]e of Comm [...]n Law: now who is ignorant that it's contrary to all the p [...]edings at Com­mon Law, to have a Charge in an English Court, a [...]d yet to be denied a Copy, whereupon to returne answer, or to be denied Councell in th [...] [...] of Law? was it ever known, that the m [...]st infam [...]s se [...]n was denyed Cou [...]cell at the Kings Be [...]ch Barre, if [...] pleaded the insuffi [...] ­cenc [...]y of the indictment in Law? and [...] more u [...] a [...]swerable reason that Sir Iohn should have had a Copy of the House of Com­mons Charge, being it is an English Court, and C [...]u [...]cell also as­signed him upon his Pica, that the Charge against him was not leg [...]ll.

Notwithstanding all these ir [...]eguler arbitrary proceedings, the House 4. Liber­ty in­ [...]rierged. being reduced to about [...]. pas [...]d Judgement upon Sir Iohn Maynord, t [...]t he should be expelled the House.

Observe how th [...] foundation of Englands Freedom is subverted, this Gentleman, a Commo [...]er of England, is dis [...]eized of his c [...]o [...]sest Franchises, or Liberties, the place of highest trust, contrary to the esta­blished Lawes. This Censure is passed upon him wit [...]o [...] one witnesse being heard in op [...]n Court, either pr [...] or co [...], a [...]d the Gentleman that made the report from the Committee onely named one witnesse (which he said he could produce) as to any particular objected against him: Now by the Statute of 5. Edw: 6. C. 11. It is provided that no man should thenceforth be indicted for any Tre [...]so [...] that then was, or from that time should b [...], from Iune then next ensuing, per­petrated, committed, or done, unlesse the offender be thereof accused by two lawfull accusers, except the party shall without violence con­lesse [Page 8] the same, yet here you see a Judgement in Parliament passed against S [...]r Iohn for the pret [...]nded c [...]ym [...]s which they stile T [...]ason, although there was a pretence but of one acc [...]er, or witnesse to any [...]

2. This Judgement is passed against this Gentleman, before his Pica to the legali [...]y of the Charge was freely a [...]gued by Councell, and j [...]stly determi [...]ed; whereas comm [...]n reason dictates that the matter of [...]ct come [...] not in question untill the Charge or accasation, be it as it [...]ught [...]o be, by perscentment or indictment, un [...]il I see the legality of that be determined. Now if the C [...]mmone [...]s of England may be disleized of their ch [...]isest Freedoms and priviledges, contrary to the known Law, yet to the universall Commands of nature; what Basis or foundation of Freedom remaines firme? what security to the life of any Commo­ner of England, more then the good will of the prevailing party.

But a further progresse was made towards subversion, of our Liber­ties. 5. Liber­ty in­frienged A further Judgement was passed against Sir Iohn Maynard. viz. That he [...] to the Tower, to remaine a prisener there, during the pleasu [...]e of the H [...]n [...].

There was no cause specified of this censure, either in the Clarkes Book, or in the Warrant, or Mittimus directed to the Lieutenant of the Tower.

Here is the impoysoned arrow shot through the principall Vitall of Englands Liberty, here is equity, Law, and Justice de [...]hroned, and abso­lute will, or blind lust challenging the proper imperiall seat of England. This Commitment drawes the black line over the name of English Fre­dom, yea the line of confusion upon the K [...]ngdom. If the Supreame Authority shall thus actually a [...]ow, that they are to Governe, [...]ose and dis [...]olve all Laws of Government▪ This was decla­red in the Pa [...]l [...]a­ment [...] first Re­mōstra [...]ce of the state of the Kingdom, to be the grand de­signe of [...] to absolve the Go­vernment [...]to [...] all restrai [...]t [...] [...]aw [...]s, and persons, and estates to di [...]pose of the persons of the people at their pleasure; then all mutuall relations and dependency of a Kingdome, and all the tearmes of destinction between Rulers and ruled, may be [...] the foundations of property are overtur­ned, and no man [...] thing his own: but himself, and what e­ver he injoyes is at the pleasure of others. This mannes of imprisoning this Gentlman is a two edged sword, whereby our Liberties are mortal­ly wounded.

1. Here is an imprisonment without a cause expressed, and whats such a Commitment lesse th [...]n a virtuall publicke Declaration, that you shall be destroyed in your Liberties, reputes, estates, and your lives in­d [...]ngered because we will. Though their should be a just legall cause of imprisoning any man; yet if it be not expressed in the Order or War­rant: our Liberty is no lesse sub [...]erted, then if their were no c [...]l [...]ur, o [...] pretence of a crime in the least punctilio; the rule of the Law is, inter [...]on apparentia [...]t non existentia eadem est ratio, there [...]s no difference be­tween things that are not, and things that appeare not; Its invincib [...]y avident, that our persons are absolute vassals to the wills of Governors, if a warrant for the imprisoning any man without a cause specified there­in should be allowed as just or Legall.

[Page 10] Sir Edward Cooke in the 2, part [...], fo. 591. averrs, that its the speciall thing required to make a mi [...]ti [...]s Legall, that the cause be ex­pressed with such convenient certainty, and may appeare Iudicially, that the offence requires such a Iudgment as imprisonment; Therefore the crime of a supposed off [...]nder imprisoned, must be in some sort particularized in the Mittimus, according to that of Festus, Act. 25. 26. 27. H [...] [...]ought for some certaine crime to insert into Pauls Mittimus, whereby he should be sent to Cesar; For saith he, it seems unreasonable to send a prisoner and not witha [...]l to signifie the crimes laid against him. And this is the true intent of Magna Carta, c. 29. wherein it saith, that no man shall be taken, or imprisoned without persentment, or Indictment &c. I could multiply reasons in this particular. As 1. from the indictment of an offendo [...] which ought to rehearse the effect of the Mittimus, and therein the particular crime, must be expressed. A second taken from the forms of the Habeas corpus, which ought not to be denyed to any offendor out of the Kings-Bench, or out of the Chancery, the words are these.

This Writ is to be directed to the Goaler, or Sheriffe detaining the prisoner, wherein he is commanded to bring the body of A. B. with the cause of his detention to receive, and suffer what the Court shall Order according to the Law. Now the Goaler is to returne his War­rant to the Court, by vertue whereof he keeps any men prisoner, and if there be not a Legall cause and authority expressed, its false imprison­ment, and the Goaler may be indicted So Cookes Exp [...]. of Magna Charta. 2. part Iust. p. 55. for it, upon the [...]. of Magna Charta, or an action of false imprisonment lyes against him: and let it be observed that a generall criminall head, as treason, felony, &c. is no legall cause to be incerced into the Mittimus, its no sufficient return by the Goaler of the cause of his detaining a prisoner; for the Court can passe no Judgement upon an offendor, neither can any indictment be grounded upon such a Mittimus, wherin the crime is expressed only i [...] such a generallity.

The second wound which out Liberties have received by this Gen­tlemans imprisonm [...]nt, is by this Order to detain him during pleasure, O this! this. I say strikes the fatall stroke to freedom and Justice: this o­verturns, overturns, overturns the foundations of the Kingdom; this [Page 10] one Act, if approved or drawn into presiden, hath a seminall vertu [...] wherby it contai [...]ed in it; self all the distinct species of injustice where­of the s [...] was ever ye [...] spectatours.

1. T [...]is imprisoning without c [...]use specified, during pleasure, if [...]t shall be av [...]w [...]d by Parliam [...]nt, doth ipso fa [...]t [...] enervate yea evacuate, & null a [...]l established Laws of the La [...]d; it renders all Rol [...]s and Records, no better then wa [...]te papers to l [...]ght Tobacco; to what purpose serves Magna Ch [...]rta, the Pet [...]tion of Right and other wholsome Laws, which say no man shall be imprisoned passed upon &c. or any way [...]s destroyed; but by the Iudgement of his equals or by due pr [...]cesse [...]t law.

Again, i [...] we shall be destroyed of our liberies at the ple [...]sures & during the pleasures of corrup [...] men, and if any Englishman may be detained a prisoner, during the pleasures of others, of what use are those Lawes that provide a Habeas Corpus, should be granted out of the Kings Bench, or Chancery; whereby the Goalers commanded, that the person of any complaining of injust imprisonment, be brought before the Judges, with the cause of his restraint, that as Sir Edw. Cooke saith, if he be impri­soned [...] 2. [...] 55 [...] contrary to the Law of the Land, they may by vertue of Magna Charta deliver him, and if it be doubtfull and under consideration, he may be bayled.

This was also resolved by all the Iudges of England, that upon complaint of any prisoner they ought to send the Kings writs [...]or his body, and [...] 2. [...] p. [...] to be cert [...]fied of the particular c [...]use, and that in case they shall find no legall cause of his imprisonment, they ought and are bound by oath to deliver him; but of what use are these Lawes, and D [...]clarations of Law, if persons may be detained in prison, be it justly or u [...]justly, during the pleasures of any number of men whatsoever? I must prof [...]sse, I know no other use of the Lawes then to sh [...]w the bouldnesse and presumption of injustice, that dare tram [...]le upon the Lawes and L [...]berties of the people, when they are most solemnly and eviden [...]ly declared.

2. This Commitmen [...] during pleasure, establisheth the wills or lusts of m [...]n: as the rule whereby to punish transgressours: suppose they be reall [...]ffendors that are imprisoned, yet if they must be disseized of their Li­berties, Trade [...], and other Imployments, during the pleasures of men, then their punishment is measured by the rule of their p [...]easure: and if men shall be censured in case of supposed or reall offences according to the pleasures of others, then those mens wills or pleasures, must neces­sarily also be the rule wher [...]by the [...]ffences must be measured, as to the [Page 12] degrees, ye [...], whereby all the actions of men shall be tryed, whether they be just, or u [...]just, good, or evill, and in case 500. shall assume and arrogate to thems [...]lve [...], the abs [...]lu [...]e Dominion ever us, that it may be England shall have 500. di [...]nct lusts, unto which they must conforme their actions.

3. This Commitment during pleasure, supposeth the perso [...]s exerci­sing that authority, to be unaccountable and ob [...]ious to [...]o censures, for any possible ab [...]se of their power; If their pl [...]a [...]u [...]e be the supreame rule, whereby they shall judge of the peoples actions, and ce [...]su [...]e them to the losse of their Liberties and dearest injoyments, then there is no rule whereby to measure the recti [...]de or obliquity, [...]ustice, or injustice of their Government, and by cons [...]q [...]ence they are under an imp [...]ssibi­lity to render an accompt of their wayes: this the Parliament ab [...]orred in the King, as appeares by their last Declaration, shewing the reason of their Votes, not to make nor receive any addresses to, or from the King, p. 12. they say the King hath layd a fit foundation for all Tyranny, by that most distructive maxime, viz. that he o [...]es an acc [...]mpt of his [...], to none but to God alone; but whether this principle be esteemed by the present Grande [...]s that over-awe the Parliament, too sweet a morsell for any pallate, except their own: I will not determine.

4. This impriso [...]ing during pleasure expeseth the Liberties. Estates, (if not the lives) and all the people to perpetuall uncertain [...]y; who can perfect [...], soresee what construction the ruling Gen [...]lemen shal please to put upon the most innoc [...]nt actions, and inten [...]i [...]ns of any which are not blessed with the [...]r graci [...]us aspect? [...]ow plausibly and with what facility may they at least question their actions▪ and upon what faire pretences may they commit them to p [...]s [...]ns? and if this shall remaine during their pleasures, they solely depend upon the uncertain, inconstent wills of a [...]ew G [...]andees; for the enjoyment of their Liberties, Trades, and [...]: o [...] howev [...]r upon the least pretence of a transgression, any man sha [...]l be imprisoned during pleasure▪ by the heads of the present faction or by their i [...]fl [...]ce upon the Parliament, and th [...]n his Liberty is lost for ever, and it may be his Family there by utterly ruined, being under an impossibility of regai [...]ing his freedom, unles [...]e he can please and satisfi [...], either by c [...]eeping and cringing, or otherwise, the ambitious [...]umours or corrupt wills of those sta [...]ists. I might here also oportu [...]e­ly discover the abhorancy of perpetuall imprisenment, or during the pleasure of any m [...]n manifested in the Statute and Common Law, and [Page 13] likewise what exquisite care the Law hath taken for the Li­berties of mens persons, by the Law of the Land, be [...]ore the [...]que [...]t: as app [...]ares by the Lawes of Ethel [...]ed, a man was ba [...]leable for any offerce▪ untill he was co [...]victed, and Sir [...]ward C [...]ke saith, that by t [...]e Common Law, a man accused or indicted of Treason, or of any F [...]lony whatsoever, was bayleable upon [...] surety; for the Goale was only his pledge that could [...]i [...]d none, and though some sta [...]u [...]es have since ab [...]dged that liberty; yet the writs deodio & atia, still in force to helps such to bayle, as are accused of Fe [...]ny, and the care taken, that every man may have an Habeas Corpus, by impo­sing an Oath upon the Judges, and providing remedies, in case any should refuse to obey the writ of Habeas Corpus, those things I say manifest the tendernesse of the Law, to every mans liberty, and it's a obhorency of long tedious or perpatu­all imprisonment at pleasure, and the Law never intended, neither doth allow imprisonment to be a punishment; but only a safe Custody See Corke 1. part. in­stit. Li. 3. ca. 7. sect. 438. fo. 260. untill the ordirary appointed times of Tryall.

But I find it objected by some, that the Parliament is above Lawes, and statutes, yea, Magna Charta it selfe, and cannot be confined within their bounds▪ in their imprisoning supposed off [...]ders and there [...]ore may imprison anyn an during pleasure: this I confeste is the opinion of the faithful & valiant sufferour Mr. Prin in his Soveraign power of Parliaments. 4. part p. 27.

Answ. I concelve this to be a grosse mistake, confounding the legislative power with the power judiciall, and executive of the Lawes: its unquestio [...]able, that the law-giving power of the Parliament is suptean [...]e to all th [...] Statutes enacted by [...]ormer Parliament [...], [...]h [...]y may at pleasure alter and rep [...]ale them, either totally or in part [...]ct th [...]s law-giving power is not absolutely supreame to Magna Charta, who'ly at their pleasure; this great Charter hath [...] consideration, either as it is in part a Statut [...] Law, and so it is subject to the pleasure of the Parlia­ment, to be altered, repealed, or confi [...]med, or as it is a Decla­r [...]ion of [...]e common Law, or of comm [...]n reason and equity, and thus t [...]s not pr [...]st [...]e at the secte of the Parliaments will. In the trust comm [...]t [...]ed by the people to the Parliament, to be [Page 14] legis [...]a [...]or; it is [...]aturally▪ and necessarily implyed and supposed; that common reason [...]nd equity should be a law to their; a [...]d thence it is received as [...]n und [...]b [...]e maxim that comm [...] [...] may annull an Act o [...] P [...]rli [...]ment; but whilst Sta [...]u [...]e [...]ws, are not [...]e­pealed by v [...]r [...]ue of the legislitive power, I supp [...] they are as obligatory t [...] the Parliament; either joy [...]ly, or i [...]parately con­sidered as to the meanest C [...]m [...]n [...]r in England.

And for their Judiciall power in declari [...]g the Law in particu­lar cases before them, I conceive they are not, even in that, pure­ly unlimitted, or absolut [...]: they a [...]e li [...]i [...]t [...]d, as to the Laws wherein that Judicia [...]l power is to b [...] ex [...]c [...]sed; the pe [...]all laws being in their own nature declara [...]ive, [...] not the object of that powe [...]; [...]uch laws ought to be taken in the letter o [...]ely, not by consequence or const [...]uction, otherwise they should [...]pl [...]y a contradiction to themselves; for b [...]ing who [...]ly declarative as they are p [...]nall, they should yet not be declarative, and its [...]n un­doubted maxime, that D [...]us non potest c [...]ntradictoria▪ God him­self cannot do things contradict [...]y, and I hope Parliaments are more mode [...]t then to challenge a power supreame to his.

2. The Parliament is limited in their Judiciall power, in decla­ring the Law where Laws may be taken by way of consequence, eq [...]ity or construction: therein common reason is also a Law to these Judges of the Law.

And for the Parliaments power in executing the Law, which is their power of imprisoning and censuring [...]ffendors; either they are to [...]ally subjected to the Law, and ob [...]eged to proceed according to Law, or else they cannot judge m [...]n as transgressors. Its only then that men can be Ju [...]ged transgress [...]r [...], when by a measuring their actions by the Laws, they are found to have walked contrary to, or swerved from the Law; But let it be ob­serv [...]d, if the Parliament cla [...]ms a power to imprison, as being [...]r [...]sted to be Executors of the Law, then it implyes a con­tradiction, to say that power of theirs is above the Law, or that they are not oblieged to proceed in every pun [...]ilio, ac­cording to the declared Law; for if there be the least abberrati­on from the Law in their censuring or imprisoning any man, they do not put the the Law in Execution, but execute their law­lesse wills.

[Page 15] B [...]t I would inquire whether the Parliaments imprisoning [...]y m [...], be an act of their Jurisdiction [...]ver hi [...]? If so, the [...] [...] the name of that power be weighed [...], a Declarati­on of the Law; N [...]w [...] implies another contradiction, to say that the Parliament have ex [...]cised [...] [...]sdiction [...]ver [...] imprisoning him above, [...]nd [...] unto Law▪ [...]ither can i [...] be he [...]e said that the particular order [...] Parliament for imprison­ing a [...]y man is a Law, and so is [...], [...] declaring the [...]aw for it is u [...]terly [...] with [...]e nature [...] the Legisl [...]tive power to be Judge of what hath been do [...], and should it be admit­ [...], that actions pa [...] might be Judged otherwise, then by the rules of distributive Justice est [...]blished in a society of people o [...] Kingdom, the very foundations of the society or Kingdom were over turned; for the compact or Agreement of the people to in habit together upon such and such tearmes, and to be ob­lieged to deale each with other according to such Rules; this compact I say were [...]ull, and the people were no more [...] body politick, but a confused ga [...]hering together of people, eve­ry one without obligation to other; and therefore the Parlia­ment reputed it a most unworthy scandall, when the King ac­cused them, that they disposed of the subjects lives, and fortunes by [...] own Votes, [...]ntrary to the known Laws of the Land. Se [...] the Re [...]. of Sep. 2. 1 642. 1 pa [...]t Tooke D [...]la p. 693. Upon these grounds I shall presume to conclude, that a name is want­ing to that Aut [...]ity of Parliament, whereby they imprison, o [...] censure any man, contrary to the Laws in f [...]rce when his [...]ffence is [...].

And [...]ow having helped you to the fi [...]st s [...]a [...]e in the Tra [...] ­gedy, [...] could [...] to withdraw, and secretly [...]ff [...]r [...] [...]era [...]e to the memory of Englands Freedome. However Courte us R [...]a­der) let thy thoughts [...], and imagine si [...]. Ioh [...] Ma [...]d ly­ing [...]mant in the [...]ower 2 [...] weeks, [...] wi [...]h th [...] chaines of [...]enant Generall [...]omwels [...]lea [...]u [...]e, but behold t [...]y [...]a [...]ive Liberties [...] with him, and I b [...]seech the vi [...]w [...] s [...]me [...]; [...]lse th [...] [...] speedily [...].

[...] c [...]s [...], should be made a [...] may b [...] [...] of the ruling faction, [...] not [Page 16] what to answer the Objections of you know not wh [...].

2. You may be [...] of y [...]ur own sword, i. [...]. to [...] [...]r­pasely to in [...] you to [...] y [...]u [...]ay be [...] by [...] a [...] to a [...] Oa [...] Fx [...] [...].

3. By th [...] [...] you may be cha [...]ed [...] a pre­tended [...] be st [...]pp [...]d [...] as [...] o ave li­berty to [...] he best▪ that P [...]a sh [...]ll mee [...] wi [...] deafe ea [...]e [...] your Judges, and throu [...] [...] Lawyers brains, shall be ex [...]racted to compose [...], a [...]d [...] with the name of a Charge; yet you shall not be admitted to have Coun [...]el to open, and plead the [...] and insufficiency of [...]e Charge; bu [...] Judgment shall be pas [...]ed against you, without [...]gning, [...]b [...]ting▪ or kea [...]ing the Plea.

4. By this precedent you may be sentenced to the losse of your best F [...]anchises and Freehold [...]; your places of trust, upon a [...] affidavit that a single witnesse can be produced to accuse you o [...] a pretended crime [...] the very light of nature, which averts one man [...] dentall to be of as much validity, as one [...] accusation. That light I say, shall be extinguished at the pleasure of the ru­ling faction, to make you an [...]ffender, and bring you under their lash: and thus your lives shall be exposed to hazzard, at the plea­sure of every malitious informer, though suborned thereunto by others.

5. By this precedent, your Liberty and Lives may be re [...] from you at the pleasure of every person in power, a paper where­in no c [...]ime, [...]er suspition of a crime shall be specified: shall be a Warrant sufficien [...] for your imprisonment; it shall be sufficient to say its [...] will, that the body of such a one be detained in pri­son, and you shall scarce dare to aske for what offence.

6. By this p [...]ecedent, your imprisonment be it never so un­just, so [...] may be everlasting; you may be a prisoner to the pleasure, or during the pleasure of those in power▪ you may be aspersed or scandalized, and colourably Committed into prison, and that must be your perpetnall Mansion; [Page 17] there your Names and Reputations must perish, and [...]o doore of possibility shall be open to come to a Legall Tryall for your first Vi [...]dication▪ or d [...]liverance; and this shall be the rea­son viz. Ten are committed during pleasure: thus by the ma [...]c [...] of the ruling faction, you may in a m [...]ment be dispoyled of a [...] your comfort [...] by being a Prisoner without hope unlesse you can please your enemies.

O that every Englishman would hea [...]ken to the groues of our dying Liberties! If the prevailing-Faction be suffered to make much further p [...]ogresse in these paths of injustice and A [...]bittari­nesse, there will be no [...]treat: they post on in their j [...]urney to­wards an obsclu [...]e d [...]minion, [...] [...]acilis cescensus averni, sed [...] re [...] ce­ [...]e [...]gradum hic laber hoc opus [...]st; who shall bring them back or obstruct their way, if we sit still untill their journey be [...]ea [...] fini­shed? O that the daily subversion of our Lawes might be discer­ned before all those hands of union and s [...]i [...]y be dissolved! Those measures and [...]nctions of right and prop [...]rty be con [...]e [...]nded, and this quondum beautifull Nation, become a rude deformed [...]! Bel [...]ve it Reader, if Sir Iohn Maynard peresh, or suffer in this illegall [...] man [...]er (suppose him the greatest [...]ff [...]n­der) no man shortly shall have better evidence for his Life, La [...]ds, or Liberties, then the fav [...]urable aspect of the present aspi [...]g Faction.

But if the impoding danger to your Liberties a [...]d your in [...]en­ded V [...]age be not sufficient [...]. I shall give you a fur­ther acc [...]mp [...], how near the [...] is complea [...]ng, wherein the wils of [...] mighty sword men, sha [...]l [...]it as our supreame Lords, makin [...] the [...] of whom they please their [...].

L. G. [...] a [...]d [...]is adherents, seemed [...] for twenty W [...]ks, with [...] destruction of Sir Iohn Mayra [...]d in his [...], and [...], but then their [...]di nation boyled [...] strength against him, and his life must become a [...] to their pl [...]a [...]u [...]es; therefore a cabinet counse [...]l must be called, to adv [...]se th [...] most expedient way to execute those [...], but it be [...]g the result of the consultation, that no [...], they resolved to preceed with [...]m [...]s they [...]ad be [...] ▪ according [...] their w [...]ls a [...]d pleasures: and [Page 17] therefore an accusation must be framed against him, whereof the Law is ignnoant, they call it Articles of Impeachment of high trea­son agai [...]st Sir Iohn Maynard and to convince the world that the strongest bands of Law, cannot stand the edge of our champions swords, they appointed Iudges of Sir Iohn Maynard, as il [...]egall as the accusation, they transmitted his case to the Lords Barre.

Hereupon the Lords directed a paper to the Lieuetenant of the Tower, commanding him to b [...]ing in Sir Iohn Maynard on Feb. 5. last past, the Coppy whereof here followeth.

[Page 18] But it seems this Gentleman was t [...]ght by his sufferings to un­derstand his [...]wn a [...]d his Count [...]ies freed [...]me [...], [...]hen [...]t the fi [...]st encounter with his e [...]mies: he was satisfied t [...]at the Lords [...]ad no [...] over the Commone [...]s of E [...]gla [...], and therefore reputed himself [...]bliged to give them a modest humble caution, not to subvert the fundamentall lawes of the Kingdom, by [...]s [...]mi [...]g a power of judicature over him being a Commo [...], and for this purpose, upon [...]b. th [...] 4th▪ [...]e d [...]patched [...] en­sui [...] Letters.

But those Lords whereof the House is now [...], not [...] deny [...]edience to the commands of the sword men and their c [...]mplices: pe [...]sisted in their Order to the [...]cutenant of the Tower, and Sir [...]ohn Maynard was on Feb 15 brought to their [...]atte, but a command was given, that the * door of their H [...]se should be shut, and that no man should be [...] accesse to hear: 6. [...] in [...]rin­ged. and though Sir Iohn Maynards Lady, children, and friends, pres­sed hard at the door, yet Mr. F [...]e Gent [...]eman [...] of the black rod, repelled them by violence; hereupon Sir Iohn May­nard [...]u [...]bly moved, that according to the practice of a [...] Cou [...]ts of Justice, the d [...]rs might be open, and all might have free ac­cesse to hear the proceedings.

But the speaker delivered the sense of the House, that [...] com­pany m [...]st come in, before sir Iohn Maynard [...] charge was read.

Thereupon Sir Iohn Maynard with reverence and respe [...]t▪ be­s [...]ught their Lordships, that in respect to their own Honour, the [...] of the House, and that which was of more value then both, [...] ▪ the preservation of the Law, their Lordships would permit all whatsoever to hear: Its a cause (said he) of [...]igh [...] [...]t, for it involves the Liberty of all the Free-born peo­ple of England.

And I beleeve your Lorships cannot be ignorant what Bookes, [...] speeches are dayly uttered against you, as invaders of the peoples [...] rights and freedomes: you are traduced to be a [...] ▪ a Councel-table, [...] worse: even a spanish inquisition, and that [Page 21] all things are carried by faction: al [...] the Orders and commo [...] rules of Just [...]ce bei [...]g dayly broken: [...]ea its said you exercised a higher [...] t [...] [...] and more arbit [...]ry power at present, then was practis [...]d by any others in the worst of [...]; but (saith hee) I have [...] severall occ [...]sion [...] to vindicate the Hon­ [...]ur of th [...]s house; [...] Lordships will pr [...]f [...]t your selves a court of [...]; yet keep your doores shut whereas I hav [...] q [...]shed such reports) your Lordships will [...]ake them truth and [...]dent to a [...] the people.

But as the Lords had no [...]u [...]idiction over him, so they wou [...]d [...] it to all men they would excercise no Iurisdict­ion: t [...]y would not declare the Law concerning him, but their wil [...]: & so they kept dores shut, it may be they esteem themselves supreame to the stat▪ of Ma [...]bridge 52 H. 3. [...]: 1. which ex­presly saith, its provided that all persons of all degrees should receive Justice in the Kings Courts. i. [...]. the c [...]uses of all persons shall be heard ordered, and determined openly in the Kings Court before the Judges, [...]here no man ought to be ex­cluded or denyed free accesse, & the reason of this is imp [...]e, nable.

First, all proceedings are only particular declarations of the Law, its intended that the Law should be understood by every man and therefore it was ordained that Magna Chatta should be publikely read 4. times or twice at the least in every cathed [...]ll &c. And of ould the Kings writ issued out at the end of every Parliament to the Sh [...]e [...]ffe of every Countie commanding him to proclaim and publish all the Acts made by the [...]. in all places throughout his Bayliwick: and to this purpose records are kept of the proceedings of the Courts of Iustice, that they might be visible to al men; for Laws not pro­mulgated or declared are no Lawes. Therefore the deniall of free accesse of people to any Court of Justice subverts the very being of the Lawes as much as is possible to such a Court.

2. The just and prime rationall [...]nd of proceedings against offenders is subverted, when theire proceedings are not as pub­like & open as possib [...]; he punishment which the law ordain to be executed upon offenders is not the end of the penall Lawes, but for the peoples profit [...] that they by the cogniz [...]ce of the matter and manner of their offences might more clearly [Page 22] distinguish between good and ev [...]l [...], and know how to order their wayes without occasion of off [...]ce to t [...]e sta [...]e; a [...] als [...], that the j [...]st [...] th [...]ir trans­gressi [...]ns may [...] inclinatio [...]s of ot [...]ers to the [...] that of Sene [...]a Ad vindictu [...] [...] and that [...] re­n [...]i en [...]m [...]. W [...] [...]ug [...]t not to co [...] to t [...]e [...] as to matter [...]f d [...]g [...]t, but [...] man pu [...]sh [...] beca [...]se the Law is tran [...]g [...]d, [...] not be transgressed, & d [...]b [...]les it is [...]epugnan [...] to the na [...]e of man to b [...] satisfied in inflicting pu­nishment upon any man as it is pun [...]ish [...]ent; but the b [...]ames of Iustice shou [...]d be totally [...]clipsed, if Courts of Iustice should be permitted to be priuate in their proceedings.

3. An us [...]full medium unto I [...]stice and regular proceedings is re [...]cted when proceedings against [...]all or supposed offenders are not publike▪ any learned man saith Sir Edward Co [...]ke in 3 parts [...]nstitutes p. 29 that is present may inform the court for the b [...]nefit of the prisoner of any thing that may make there proceed­ings [...], and is i [...] n [...]t necessary then that all men should have free accesse to Courts of Iustice that there may be the most perfect means to dispose it imp [...]rtially? answerable to this rea­s [...]n is the custom of England: all [...] of Iustice ever have been [...]eld op [...]nly and publikely, as appeares by all Courts in West­minster, a [...]d all Assises an [...] sessions wherein all off [...]nders have open [...]ryall.

Its [...] to n [...] f [...]ld the misc [...]i [...]s that might ensue in case an [...] Court of [...]ustice shou [...]d be permi [...]ted, to proc [...]ed against any off [...]nder priva [...]ly with their d [...]o [...]es shut: no man should know but the Cour [...] themselves, wh [...]ther either Law, or will were p [...]t in executi [...]n; wh [...]the [...] [...] [...]ccused, were gu [...]lty or innoc [...]n [...]: the O [...]ficers o [...] a [...] might exercise what [...], they might extract [...] of C [...]mes f [...]om them by terrours and to [...]ures, [...] them for triuiall [...]ffences: n [...] [...]an could t [...]y whetne [...] c [...]ns [...]res w [...]re p [...]op [...]rtionable to their cri [...]es.

[Page] B [...]t though Sir I. Maynard deservs in my opinion re [...]pect [...]nd as­sistance, for vindicating this Liberty of England▪ that all Courts of justice should be open; yet I believe it will be found upon due exa­mination that he was in a mistake, i [...] he suppo [...]ed the Lord [...] [...]o be a Court o [...] Just [...]ce in any re [...]pect as to Comm [...]ners: and it may be▪ the Lords dep [...]ment shall evi [...] this; they w [...]u [...]d n [...]t assume to them el [...]c [...] the forme or appear [...]nce of a Court of justice by s [...]ing openly; but to proceed to the Narra [...]ive.

Sir Iohn Maynard standing as a prisoner at the Ba [...], the Speaker re [...]manded h [...]m to kn [...]el and hear his Charge. But Sir Iohn understan­ding tha [...] kneeling at t [...]ei [...] Bar, either according to re [...]on▪ or the custome▪ w [...]uld [...]ave been a [...], that he stood as an [...]f [...]nder be [...]ore hi [...] Judges upon his tryal [...], he re [...]u [...]ed to kneele and with all humil [...]ty answered thu [...]. I am prostrate at your Lordships feet in re­spect [...] Liberty of England in fr [...]nged viz the Lords claiming a jurisdiction over Comme [...]ers, and v [...]ndicated by Sir Joh. Maynard. of [...]our persons, but if I should kneele to he [...] an impeachine [...]t from th [...] H [...]use. I should acknowledge my [...]fa D [...]li [...]quent under your [...]uris­d [...]t [...]on and through me, the liberties of all the Commons of [...]ngland wou [...] be wen [...]ded and destroyed: By the Law of the La [...] ▪ every free man ought to be tryed by his equals▪ and not ot [...]erwise; and this your Lord [...]p [...] Pred [...]cessory co [...]fessed in the case of Sir Simo [...] [...]e Be [...]e [...]ford; [...] K [...]ng Ed. 3.

H [...]re [...]nno [...]u [...] ob [...]erve how the Common [...] of England [...] i [...]g [...]ged to Sir Iohn Maynard, for v [...]ndicating this [...]heir fundamen­tal [...] [...]berty, t [...]at the Lords have no jurisdiction over C [...]mmoners: had n [...]t t [...]e Lords r [...]c [...]ived a repu [...]e in this assault upon England [...] [...] [...]hey had taken all our liberti [...]s c [...]ptive▪ and the name of [...] England might have been u [...]erly abo [...]ish [...]d; [...] the [...] shew my wishes of pr [...]perity to [...]r [...]o [...]n Maynard i [...] t [...]s g [...]ll [...]nt [...], and t [...]ough I care not trust so great a cause, up [...]n [...]e p [...]tron [...]ge [...] rude a p [...]n▪ yet I hope the world wi [...]l [...]ee by m [...] weak Es [...]ay, to prove the Lords have no jur [...]d [...]ct [...]n over C [...]mmon [...]r [...] ▪ [...]nd that a [...]ull stream of reason and justice tuns on Sir Iohn Maynard si [...]e.

Now for the c [...]arer u [...]rstanding thema [...]ter in question▪ I shall pre [...]e two or t [...]r [...]e th [...]gs.

First it is an [...] Maxime, that the esta [...]es, liberties▪ and fi [...]es of the peop [...]e o [...] Englan [...] ▪ ou [...]t not to be dispo [...]ed o [...]en rary See the [...] ma [...]e 17. Ca [...]oli printed togethe [...] [...] to the esta [...]l [...]shed Laws of the L [...]nd; this you shall find averre [...] by the Act made this pre [...]en [...] Par [...]o abo [...]ish [...]ng the Star-chamber, is▪ that they had n [...]t [...] themselvs to the poin [...]s limited by the stat [...] of [...]. 1. H. 8. from w [...]nce they had their power, but pun [...]shed where no [Page 24] law did warrant: And that was the reason that was rendered for the abolishing the CouncelTable▪ viz. That they had determined of the E­states and liberties of the people contrary to the Law. Now the estates of the people are disposed of contrary to law two wayes, 1. Either, when they are disposed of, or judged by persons not authorized there­unto by Law; Or, 2. when they are disposed of by an illegall judg­ment, passed by legall Judges.

So then all persons judging the Commons of England must have a juri [...]diction over them by vertue o [...] some Law; and who [...]oever sub­mi [...]s to the cen [...]ures o [...], or try [...]ls by any other, becomes gui [...]ty of the hig [...]est treacher [...] against Englands freedome.

All legall [...]uri [...]dictions over the people are either primitive or deri­vative and delegate [...] powe [...] by Comm [...]ss [...]on from the pr [...]mitive: Be­ware hereof confounding jur [...]sdiction with the [...]e [...]islative power: Ju­risdiction 2. Pre­mise. be it either derived from jus & d [...]ctio, or as Sir Edw. Co [...]e will have it from juris [...] [...]. c. the power of the law, yet its proper­ly a declaring of the law▪ or a putting laws established in execution, & doth not include the making of Laws.

Now the primitive jurisdiction is undoubtedly in the people, all just power either legisl [...]tive or jurisdictive, to make or execute laws was scunded upon a compact with them, all men being by n [...]ure equal each to other, and the supream derivative jurisdiction resides in one or more persons, which most immediatly represent the people and are entrusted with their power. Now if any persons should be permited to assume to themselvs a jurisd [...]c [...]ion, notwithstanding all the various jurisdictions of Courts would be con [...]ounded, and no security would remain to the life or [...]ib [...]rty of any man.

This pr [...]m [...]sed▪ I a [...]er▪ that th [...] Lords have no just Commission to exerci [...] any jurisd [...]ction [...]ver Commoners in [...]ny case whatsoever; there is none to pass [...] such a Commission, but eit [...]er the people imme­diatly, and I suppose none will plead, that the L [...]rds were ever elected by the peop [...]e, and a compact passed, that they should exercise such or such juri [...]d [...]ction over them; Or, 2. such a Commission must p [...]s [...]e from the Deputies of the People in Par [...] ▪ and then it must appeare by [...]me Act of Par [...] f [...]r which [...]here is no co [...]ourab [...]e plea, as I shal pre­sently cleer: as for the King▪ its indisput [...]ble tha [...] it transcends his power to give them a Commission [...]o exe [...]ci [...]e the least juri [...]d [...]ction: The esta [...]es, liberties, and lives of the people must be disposed of by Law▪ which i [...], by Courts estab [...]ished by Law, and according to the Law; and its confessed on all hands, that the K [...]ng cannot make Lawes, and therefore cannot impower any with a jurisdiction over the peo­ [...] [...]

[Page 25] To proceed then to proofs, th [...]t such a jurisdiction was never gi­ven to t [...]e Lords by Parl. That of M [...]g. Charta may suffice for all, c. 29 its said. No Freeman shall be taken or impri [...]oned [...] [...]sseised of his Free hold [...] Li [...]er [...]ies or Customes, or [...] or exi [...]ed▪ or any wayes destroyed▪ nor we will not passe [...] on him nor c [...]ndemn him but by the law [...]ull ju [...]gment of hi [...] [...] the law of t [...]e Land.

B [...] the jud [...]ment of [...]is peers is h [...]re mea [...] [...]e verdict of 12. of his Equals, and observe the latitude o [...] this, [...] ex [...]ends to a [...]l cases whatso­ever; not only to cr [...]minall ca [...]es, but [...]o a [...] ca [...]e [...] o [...] con [...]rover [...]e▪ a­bout me [...]m [...] tuu [...] ▪ all is co [...]t [...]n [...]d u [...]der be [...] words Free-Folds, L [...]berties, [...]r Free-cu [...]tomes: whatever any man p [...]ssesse its to be com­prehended under the n [...]n [...]f Free [...]o [...]d. or a Liberty or Free-hold. and yet i [...] this shou [...]d seem de [...]c [...]tive, [...]e n [...]xt word [...] would supply, if we will not passe upon any man neque bimu [...] n [...]que m [...]ttem [...] &c. [...]aith the Latine▪ that is, nei [...]her the King nor any justice, or C [...]u [...] ▪ shall try any [...]ree m [...]n but by his Equals: [...]o that by law, the Lords are total­ly excluded [...]rom intermedling with the tryal [...] of any Commoner in any case w [...]at [...]oever.

And to his agrees the Statu [...]e of 25. Ed. 3. c. 4 42. Ed. [...]. c 3. and there are [...] S [...]a [...]utes in force, [...]ew in print▪ enacted since Magra Charta which ordains the tryall of all Commoners to bee by the [...] Equals on [...] and t [...]e same Charter, and many of those Statutes particularly are confirmed by the Pe [...]tion of Right 3▪ Car. and by the Acts in d [...] this [...]re [...]ent Parl [...]ament for the a [...]ol [...]sh [...]ng the Stat cham­ber, and [...] [...]a [...]le, n [...] the [...]an [...]n Lawes; so that whilest those Laws re in force the Lord House is incapable to be made Iudges of any Comm [...]er.

But it se [...]m [...]s this liberty of the Commons of England was some­times invaded [...]y the Lords and Sir E. Cook 2. part of Inst. [...]. p. 50, [...]ai [...]h, that i [...] w [...]s enacted at the [...] of the Lords▪ that herea [...]ter no Peeres should be droven to give judgment on any other [...] then on their Peers according to the Law and he cites Rot. Parl. 4. E. 3, [...]. 6. 10 ma [...]ntaine his asser [...]ion, and its recorded in 4. E. 3. Rot. 2 in Sir S [...]mon de Bere [...]ords case, who was adjudged as an accessary to Roger Mor [...]imer, in the murder of King Ed. 2 in these words.