'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
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
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
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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