'On the 150th page'
[John Lilburne, an untitled broadsheet of August 1645]
In the 150th page of the book called An exact collection of the parliament's remonstrances, declarations, etc. (published by special order of the House of Commons, 24 March, 1642) we find there a question answered fit for all men to take notice of in these times.
QUESTION. Now in our extreme distractions when foreign forces threaten, and probably are invited, and a malignant and popish party at home offended the devil has cast a bone and raised a contestation between the king and parliament touching the militia. His majesty claims the disposing of it to be in him by the right of law; the parliament saith, rebus sic stantibus, and nolenti Rege: the ordering of it is in them.
ANSWER. Which question may receive its solution by this distinction: that there is in laws an equitable, and a literal, sense. His majesty (let it be granted) is entrusted by law with the militia, but it's for the good and preservation of the republic against foreign invasions or domestic rebellions. For it cannot be supposed that the parliament would ever by law entrust the king with the militia against themselves, or the commonwealth that entrusts them, to provide for their weal, not for their woe. So that when there is certain appearance or grounded suspicion that the letter of the law shall be improved against the equity of it (that is, the public good, whether of the body real or representative) then the commander going against its equity, gives liberty to the commanded to refuse obedience to the letter. For the law, taken abstract from its original reason and end, is made a shell without a kernel, a shadow without a substance, and a body without a soul. It is the execution of laws according to their equity and reason which (as I may say) is the spirit that gives life to authority. The letter kills.
Nor need this equity be expressed in the law, being so naturally implied and supposed in all laws that are not merely imperial, from that analogy which all bodies politic hold with the natural whence all government and governors borrow a proportionable respect. And therefore when the militia or an army is committed to the general, it is not with any express condition that he shall not turn the mouths of his cannons against his own soldiers. For that is so naturally and necessarily implied that it's needless to be expressed; insomuch as if he did attempt or command such a thing against the nature of his trust and place, it did ipso facto estate the army in a right of disobedience except we think that obedience binds men to cut their own throats, or at least their companions'.
And indeed if this distinction be not allowed, then the legal and mixed monarchy is the greatest tyranny. For if laws invest the king in an absolute power and the letter be not controlled by the equity, then, whereas other kings that are absolute monarchs and rule by will and not by law are tyrants perforce, those that rule by law and not by will have hereby a tyranny conferred upon them legally, and so the very end of laws, which is to give bounds and limits to the exorbitant wills of princes, is by the laws themselves disappointed: for they hereby give corroboration and much more justification to an arbitrary tyranny, by making it legal, not assumed which laws are ordained to cross, not countenance. And therefore is the letter (where it seems absolute) always to receive qualification from the equity, else the foresaid absurdity must follow.
It is confessed by all rational men that the parliament has a power to annul a law, and to make a new law, and to declare a law; but known laws in force, and unrepealed by them, are a rule as long as they so remain for all the commons of England whereby to walk; and upon rational grounds are conceived to be binding to the very parliament themselves as well as others. And though by their legislative power they have authority to make new laws, yet no freeman of England is to take notice (or can he) of what they intend till they declare it; neither can they as is conceived justly punish any man for walking closely to the known and declared law, though it cross some pretended privilege of theirs, remaining only in their own breasts.
For where there is no law declared, there can be no transgression. Therefore it is very requisite that the parliament would declare their privileges to the whole commons of England, that so no man may through ignorance (by the parliament's default) run causelessly into the hazard of the loss of their lives, liberties, or estates. For here it is acknowledged by themselves that their power is limited by those that betrust them, and that they are not to do what they list but what they ought, namely, to provide for the people's weal and not for their woe: so that unknown privileges are as dangerous as unlimited prerogatives being both of them secret snares, especially for the best-affected people.
It is the greatest hazard and danger that can be run unto, to desert the only known and declared rule, the laying aside whereof brings in nothing but will and power, lust and strength, and so the strongest to carry all away. For it is the known, established, declared and unrepealed law that tells all the freemen of England that the knights and burgesses chosen according to law and sent to make up the parliament, are those that all the commons of England (who send and choose them) are to obey.
But take away this declared law, and where will you find the rule of obedience? And if there be no rule of obedience, then it must necessarily follow that if a greater and stronger number come to a parliament sitting, and tell them that they are more and stronger than themselves and therefore they shall not make laws for them, but they will rather make laws for them must they not needs give place? Undoubtedly they must.
Yea, take away the declared, unrepealed law, and then where is meum et tuum and liberty, and property? But (you will say) the law declared binds the people but is no rule for a parliament sitting who are not to walk by a known law. It is answered: it cannot be imagined that ever the people would be so sottish as to give such a power to those whom they choose for their servants. For this were to give them a power to provide for their woe but not for their weal, which is contrary to their own foregoing maxim. Therefore doubtless that man is upon the most solid and firm ground that has both the letter and equity of a known, declared and unrepealed law on his side, though his practice do cross some pretended privilege of parliament.
And whereas by an act made this present parliament, Anno 17 Caroli Regis (entitled An act for regulating of the Privy Council, and for taking away the court commonly called the Star Chamber) it is there declared that 'the proceedings, censures, and decrees' of the Star Chamber 'have by experience been found to be an intolerable burden to the subject and the means to introduce an arbitrary power and government', and that the Council Table 'have adventured to determine of the estates, and liberties of the subject, contrary to the law of the land and the rights and privileges of the subject'. Which laws are there recited, as first, Magna Carta, and the 5 Ed. III cap. 9 and 25 Ed. III cap. 4 and 28 Ed. III cap. 3 the last of which saith that 'it is accorded, assented and established, that none shall be taken by petition or suggestion made to the king or his council, unless it be by indictment, or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law, and that none be put out of his franchise or freehold, unless he be duly brought in to answer and forejudged of the same by the course of the law'. And by another statute made in the 42 Ed. III cap. 3, it is there enacted that 'no man be put to answer without presentment before justices, or matter of record, or by due process and writ original according to the old law of the land'.
Therefore for the subjects' good and welfare in future time, it is enacted: 'that from henceforth no court, council, or place of judicature shall be erected, ordained, constituted, or appointed within this realm of England, or dominion of Wales, which shall have, use, or exercise the same, or the like jurisdiction, as is, or has been used, practised, or exercised in the said Court of Star Chamber'.
From the equity and letter of which law, it is desired that our learned lawyers would answer these ensuing queries.
First, whether the letter and equity of this law do not bind the very parliament themselves during the time of their sitting, in the like cases here expressed, to the same rules here laid down? Which, if it should be denied, then secondly: whether the parliament itself, when it is sitting, be not bound to the observation of the letter and equity of this law, when they have to do with freemen that in all their actions and expressions have declared faithfulness to the commonwealth?
And, if this be denied, then thirdly: whether ever God made any man lawless? Or whether ever the commonwealth when they choose the parliament, gives them a lawless unlimited power, and at their pleasure to walk contrary to their own laws and ordinances before they have repealed them?
Fourthly, whether it be according to law, justice or equity, for the parliament to imprison or punish a man for doing what they command him, and by oath enjoin him?
Fifthly, whether it be legal, just or equal, that when free men do endeavour according to their duty, oath and Protestation to give in information to the parliament of treason acted and done by Sir John Lenthall against the state and kingdom and long since communicated to several members of the House of Commons, but by them concealed and smothered, and now by God's providence brought upon the stage again and during the time that inquisition is made of it before the Committee of Examinations, before any legal charge be fixed upon Sir John Lenthall, or he required to make any answer or defence, that he shall be present to out-face, discourage and abuse the informers and witnesses in the face of the committee, without any check or control from them? And sometimes, while they are sitting about the examination of his treason, that he shall sit down beside them with his hat on, as if he were one of them, and that he shall enjoy from the committee ten times more favour and respect than the just, honest, and legal informers against him, who by some of the committee themselves while they are sitting, are threatened, jeered, nicknamed and otherways most shamefully abused?
Yea, and the friends of the informers for the state are kept without doors and the friends of the accused admitted to come in always without control; and during the examination of the information, that the committee shall refuse to remove the informers out of Sir John Lenthall's custody of King's Bench to another prison, although they have been truly informed that he has set instruments on work to murder them, and also importuned to remove them?
Sixthly, whether it be not most agreeable to law, justice and equity, that seeing Sir John Lenthall having so many friends in the house concerned in the business, that he should not rather be tried by the same Council of War in London where Sir John Hotham and his son were, than at the parliament his principal crime being against the law martial, as theirs was.
London, 30 August 1645
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