A Defiance to Tyrants. OR THE ARAIGNMENT OF TWO ILLEGALL COMMITTEES. viz. The close Committee of Lords and Commons appointed ro examine the London Agents. And the Committee of Plundered Ministers.
In two Pleas Made by L. C. JOHN LILBVRNE Prerogative Prisoner in the Tower of London.
Wherein is clearely Declared the unjustness, arbitrariness, and absolute unlawfulness of the late Proceedings of that close Committee of Lords and Commons against the said London Agents.
AND ALSO, Proving all the proceedings of the Committee of Plundered Ministers in summoning and imprisoning severall Citizens of London, for refusing to pay Tythes, to bee an absolute subversion of the fundamentall Lawes of the Land, and Treason of as high a nature as any the Earle of Strafford lost his head for; They making their Will a Law unto the Kingdome; There being no Law at all in the Kingdome, whereby the London-Priests can claime Tythes, or recover them from any of their Parishoners.
LONDON, Printed for the information of all men, that are not willing to be Priest-ridden and to be slaves to Tyrannie and oppression, Jan. 1648.
A PLEA Made by L. Col. IOHN LILBVRNE, Prerogative Prisoner in the Tower of London, the second of Decem. 1647. Against the proceedings of the close and illegall Committee, of Lords and Commons appointed to examine these that are called London Agents, with divers large additions; unto which is annexed-a Plea for the said Citizens of London against the Committee for plundered Ministers, for their illegall imprisoning them for refusing to pay Tithes.
ALL Magistracy in England, is bounded by the known and declared Law of England See the Petition of right and Sr. Edw Cooke, 4. part [...]nstitutes, Chap. high Court of Parliament. and while they Act according to Law, I am bound to obey them, but when they leave the rules thereof, and walk by the arbitrary rules of their owne wills, they do not act as Magistrates, but asSee King Iames his speeches the Parl. at Wh [...] Hall. 1 [...]9. and 1 p. book Decl. p. 150. & my Book called the out crye of oppressed Commons. p. 16. 17. 18, and my Epistle to Mr. Martin of the 31. May. 1647. called Rash Oaths & p. 56. Tyrants, and cannot in such actings challenge any obedience, neither am I bound to yeeld it, but am tied in conscience and duty to my selfe and my native Countrey therein to resist and withstand them, and if their Officers goe about by force and violence to Compell mee to obey and stoop unto their arbitra [...]y and illegall command; I may, and ought, (if I will be true to my native and legall freedomes) by force to withstand him or them, in the same manner that I may withstand a man that comes to rob my house, or as I may withstand a man, that upon the high way by force and violence would take my purse or life from me.
And therefore all Warrants comming from any pretended or reall Committees of Lords and Commons to command me before them, that are not formed according to the Law of England, I ought not to obey, but withstand and resist upon paine of being by all the unbiased understanding men of England esteemed a betrayer and destroyer of the Lawes and liberties of England, for the preservation of which I ought to contest as Naboth did with King Ahab for his vineyard, 1 King. 21. 2, 3, 4, 13. And by the Law of England, no warrant or precesse ought to issue out to summon up any man to any Court of Iustice of England whatsoever, till a complains by a certaine prosecutor be filed or exhibited, in that Court of justice, from whence the warrant, processe or Summons comes, which warrant, processe, or Summons ought expresly to containe the Nature of the Cause to which I am to answere,See Cooke 2 part institute [...] upon the 29. Chap. of Magna Charta. fo. 52. 53. & 590. 591. & regall tirany, p. 78. 79. 80. 81. & vox plebis, p. 37. & my plea before Mr. Marten of the sixt. Nov. 1646. called an anotomy of the Lords tirany, p. 5. 7. 8. and the name of my prosecutor or complainants, or else it is not legall, and so not binding, but may and ought to be resi [...]ed by mee, and the Court must be sure to have legall jurisdiction over the causes.
Secondly, All the Capacities that either the house of Commons or Lords can sit in, is.
First, either as a Councell, and so are to be close, (and for any man whatsoever in that capacitie to come, or offer to come in amongst them, that do not belong unto them, is unwarrantable, and so punishable See Cooks 2 part. instl. fol. 103. 104. & 4 part insti. Chap. High Court of Parlm. and the book called the manner of holding Parlmes. Mr. Prime relation of the triall of Coll. Nath. Fin [...]s, p. 13. & rega [...] tirany. p. 82. 83. or else,
Secondly, as a Court of justice, to try and examine men in criminall causes, and in this capacitie they or any of their Committees ought alwayes to Sit open, for all peaceable [Page] men freely to behold and see, See 2 part institutes, fol. 103. 104. & my Book called the resolued mans resolution, p. 56 and regall tyrannie p 81. 82, 83. and Mr. Prims relalation of Col. Nath. Finis his tryall. p. 11, 12, 13. or else I am not bound to goe to any triall with them, or answer them a word, and therefore in this sence most illegall is the close Committee of Lords and Commons, for examining those (they call) London Agents, or any other whatsoever.
And, Thirdly, that close Committee is most illegall, being a mixture of Lords with Commons, seeing the Lords are none of their or my Peers and equall by Law, and so cannot; nor ought not to be there to be my examiners, tryers, or Iudges, and a traitor I am to the Lawes and liberties of England, if I stoop or submitt to the Iu [...]sdiction or power of such a mixt Committee. See my gran plea and my letter 11. Nov, 1647 to every Indviduall Member of the house of Commons. See Sr. Edw. Cooks exposition of the 14 and 29 Chap. of Magna Charta in his 2 part institutes & regall tyrannie p. 43, 44, 72, 73, 74, 85, 86. & vox plebis p. 38. 39, 40, 41. 42, and my apistle to the L. of the Tower the 30. Ian. 1646. called the opressed mans opressions declared pa. 17, 18, 19.
Thirdly, it is contrary to Law, and expresly against the Petition of right, either for this Committee of Lords and Commons; or any other Court of Iustice or Committee whatsoever, to force me or any man to answer to interrogatories against my selfe, or my neer relations
Fourthly, Neither can they legally goo about to try or punish the for any crime that is triable or punishable at Common Law.See vox plebis p. 38. my Anatomy of the Lords tyrannie. p. 10. and Thompsons plea against Marshall Law.
Fifthly, and if in case there be no Law exta [...]t to punish their pretended London Agents for doing their duty in prosecuting those just things, that the Parl. hath often declared is the right and due, of all the free men in England, they ought to goe free from punishment; for where there is no Law there can (saith the Apostle Paul) be no transgressionRom. 4.15. Englands birth-right p. 1, 2, 3, 4. & the resolved mans resolution p. 24, 25, 26. but if that Committee or any other power in England shall Commit mee, or any Commoner in England to prison for disobeying their illegall and Arbitary Orders, it is more then by Law they can do; neither ought I to goe to prison, but by force and violence (which I cannot resist) and I ought to see that the warrant be legall in the forme of [...]t, that is to say, that it be under hand and seale, and that he or they in law, have power to Commit me, and that the warrant containe the expresse cause wherefore I am Committed, and also have a Lawfull conclusion, viz: and him safely to keep untill he be delivered by due course of Law, and not during the pleasure of this house or Committee, or till this house or Cooumittee do further Order See the proves in the third Marginall note at the leter [...] c. and I may & ought to read the Warrant, and to have a copy of it, if I demand it, without paying any thing for it; and if I be Committed for any Crime not mentioned in the Statute of Ed. 3. Cap. 15.which Statute you may read before p 6 & take notice of this, that all misdemeanours whatsoever are bailable. I am Bail [...]ble, which I may and ought to tender in person to the parties that Commit me, either (if I have them by me) befo [...]e I goe to prison, or else at soone as I am in prison, or as soone as I can conveniently get fit baile for me; and in Case I be legally Committed, both for power Mattet and forme, and be kept in prison after I have proffered [...]aile (as before) I may bring my action of false imprisonmont and recover damages therefore: but besides knowe this, that there is not one farthing token due to the Serjant at arms or any other Officer whatsoever, that carries me, to prison, neither is there one peny due to any Goaler whatsoever for fees from me but one bare gro [...]e at most;See the 3 E 1 Chap. 26 & 4 E. 3, 10, & 23. H. 6, 10 & Rast. plea fo. 31 7. vox plebis p. 55, [...], 57, & my late Epistle to Col. West late Leift of the Tower called the oppressed mans oppression declared p. 3, 4. 1 part Cooks insti. Lib. 3, chap. 13, Sect, 701. fol. 368. where he positively declares is was the native and ancient rights of all English men, both by the statute and common Law of England, to pay no fees at all to any administrators of Iustice whatsoever, or any Clearke or officer whatsoever, officiating under them, who were onely to receive there Fees, Wages, and Salleries of the King, out of the Publique treasure. See also a part institutes fol. 74. 209, 210. the Publique treasure of the Kingdome being betrusted with the King for that and such ends: see also that excellnt booke in English, called the Mirror of Iustice Chap. 5. Sect. [...] pag 231, and Iudge Huttons argument in Mr. Hamdens case against ship mony, pag. 41, and when I am in prison, I ought to be used with all civillity and humantie: for that great Lawyer, Sir Edward Cook expresly saith,See 1 part institutes lib, 3, Chap, 7, Sect. 438 fo 260 & the 2 part fo. 43, 315, 590. see my book called the oppressed mans oppressions declared p, 3 vox plebis p 47, 55 56. & liberty vindicated against slavery p, 14, 15, 16. That imprisonment must onely be safe custody, not a punishment, and that a prison ought to be for keeping men safe to be duly tryed, according to the Law and custome of the land but not in the least to punish or destroy them, (or to remaine in it till the party committing please:) and he further saith, in his exposition of the 26 Chap. of Magna Charta.in his 2 part ins [...]it [...]tes fol. 42, 43. which is exceding well worth your reading see fo. 315, 316. 590, 591 see the mirrour of Iustice in English Chap, 5, Sect 1 devision, 53, 54, 55, 57, 58, pag 231. that the Law of the Land favouring the libertie and freedome of a man from imprisonment, and so highly hating the imprisonment of any man whatsoever, though Committed or accused of heinous and odious crimes that by Law it self is not bailable, yet in such a case it alowes the prisoner the benefit of the Write called de odio & aria anciently called breve, de bono & Malo to purchase his liberty by, which [Page] [he saith] he ought to have out gratis, which Write is in force to this day, and therefore [he saith ibid:] that the Iustices of assise, Iustices of Oyer and Termimer, and of Goale delivery have not suffered the prisoner to be long det [...]ined, but at their next comming have given the prisoner full and speedy Iustice, by due tryall without detaining him long in prison. Nay [saith he] they have been so farre from allowance of his detaining in prison without due tryall, that it was resolved in the case of the Abott of St. Albon by the whole Court, that where the King had granted to the Abott of St. Albon, to have a Goale, and to have a Goale delivery, and divers persons were committed to that Goale for fellony, and because the Abott would not be at the cost to make deliverance, he detained them in prison long time without making lawfull deliverance, that the Abbot had for that cause forfeited his franchise and that the same might he seized into the Kings hand.
And in case the party be Committed to prison unjustly, and no Baile will be taken for him, he ought to require a Copy of his Mittimus and to have it gratis, and if I should demand it and it would not be given me, I would not goe unlesse I were Carried by Force, by head and he [...]ls, and then I would cry our Murder, Murder, only this is to be taken notice of, that if I commit an offence before the view of a Iudge or Iustices sitting upon the Bench I ought to goe to prison with or by his verball command, with any officer of the Court he shall Command me to goe with, only he ought to enter a Mittiter and send it after me when the Court riseth, and I may if I please proffer him baileto answere the Law when he Commit [...] me, which he ough not to refuse and if he do, it is fals imprisonment if my pretended or reall crime were bailable and my action I may have against him. end do the best I could to preserve my selfe tell I had got a Copy of it; for many times, when a man comes to prison the dogged Gaolers will refuse to let me have it [which may be a great detriment unto me] and if I stirre or bussle for it, his will shall be a Law unto me, to dungion me, boalt and fetter me, contrary to Law It being [as, Andrew Horne saith in his excellent booke called the Mirrour of Iustice in English, Chap. 5. Sect. 1 devision 54 page 231] an abuse of Law that a prisoner is laden with [...]rone, or put to p [...]ine before he be adtained of fellony. &c. And when I am thus in prison [committed by what authority soever] the first thing that I am to doe is to send my friend [be he what he will be] as well a private understanding resolute man, as a Lawyer] for either my selfe or any one I will appoint, may, and ought to plead my cause before any Iudge in England, as well as any Lawyer in the Kingdome, and neither ought by the Iudge to be forbidden, snub'd or browbeaten] to the Chancery for a habeas corpous, if it be out of terme: for as Sr. Edw. Cooke on the 29 Chap. of Magna Charta wellin his 2 part institutes fo. 52. 53. in which pages you may read the very words of an habeas Corpus as also in the 79 80. 81. pages of Regall tirany where you may have them in English, as well as Latin, saith the Chancery is a shop of Iustice alwayes open, and never adjourned, so as the subject being wrongfully imprisoned; may have Iustice for the Liberty of his person as well in the Vacation time, as in the Tea [...]me, but if it be Tearme time it is most proper to move for the habias corpus at the Kings bench barre, and if the Iudges refuse to grant it unto you [it being your right by Law as the Petition of Right fully declaresupon which habeas corpus, if you be brought up to the barr, you ought if wrongfully imprisoned, clearely to be discharged without baile, & with baile if justly imprisoned if your crime be bailable or else the Iudge forsweares himselfe for which you may indict him for perjury and also have an [...] action at Law for false imprisonment against him that falsly committed you, or they that forced you hither, yee & in diverse cases against the Iaylor himselfe, who ought not by Law [upon their perills] to receive or detaine you, but by a legall warrant flowing from a legall power, as before I have more fully noted. see also 1 p. book decla. pa, 205 and the Iudges by their oath [before printed page 10. 34.] are bound to execute the Law impartially without giving care in the le [...]st to the unjust command of the parl. or any other against it, then you may by the Law indict the Iudge or Iudges for perjury, and if then they shall deny you the benefit of the Law, I know no reason but you may conclude them absolute tirants, and that the foundation of Goverment is over turned and you [as the Parliam. hath taught you] are left to the naturall remedy to preserve, your selves which selfe preservation they have declared no people can be deprived of; see their declarations 1 part booke declar. pag. 207. 6, 90, 728, 150.
Murthering imprisonment in the
Tower of London this 2 of Dec.
1647.
and in life and death, always one
and the same for the liberties of himselfe
and his native Country.
Postcript.
BUt while I was concluding this second edition of the London Agents plea, with the fore-expressed additions, newes is brought me that the Committee of plundred Ministers, summons up Londoners and commits them for none payment of Tythes; for whom I frame a Plea thus. That the houses of Parliament, have already made two Ordinances about Tythes of the 8. of Novem. 1644. and the 9. of August, 1647. & by those Ordinances referred the London-Parsons, or Ministers in London, to get their Tyhes according to the statute of the 37. H. 8. 12. which Statute authoriseth such, and such men to be Commissioners therein nominated, or any six of them to make a decree, which decree shall be as binding to the Londoners as an expresse act of Parliament, in which they give the Parsons two shillings nine-pence in the pound, for all house rents, &c. which the Londoners are bound to pay unto their Parsons, if the said Decree had (as by the foresaid Statute it ought to have been) entered upon record in the High Court of Chancery, which it never was nor is not there to be found as Mr. Narborow the Lawyer in Roben-Hoods Court in Bow-Lane London, proved by Certificate under the record Keepers hand, before Alderman Adams, when he was Lord Major of London; in a case betwixt Parson Glendon of Barkins by Tower-Hill, and one of his Parishoners, viz. Mr. Roberts a Marchant, as I remember, for I was by and heard all the Plea.
And therefore the Parsons of London, can neither by law nor those Ordinances, recover or justly require, one farthing token of tythes from any Citizen of London.
And for the Committee of plundered Ministers by any pretended authority that yet is visible, to take upon them to execute those Ordinances, or to compell the Citizens of London to pay tythes to their Parsons or Ministers, they have no more authority, or right to do it, then a Theefe hath upon the high way to Rob me of my Purse, or life, and for them by the Law of their own will, to take upon them to send Summons to any freeman of England, and to force them to come before them; and without due processe ofAnd what due processe of Law is, you may read in the 2 part instituts upon the 29 Chap. of Magna Charta, and vox plebis pag. 11, 12, 14, 15, &c. and my booke called The resolued mans resolution, page 3, 4, 5, 6, &c. and my grand Plea against the Lords, and Thompsons Plea against the new [...]irants at Windsors executing Marshall Law. Law; to pay so much money to the Parsons, upon any pretence whatsoever, & for unwillingnesse to pay, to commit him or them [...]o Prison, is a crime in my judgement of as high a nature in subverting our fundamentall Lawes and liberties, and se [...]ng up an Arbitrary Tirannicall Government, as the Earle of Straford was accused of; and lost his head for: and as well doe the actors in this arbitrary Committee deserve to die for these actions, as traiterous subvertors of our lawes, as the Earle of Straford did for his; against whom in the fift Article of his additionall impeachment of treason, it is alledged, against him, That hee did use and exercise a [...]ower, above, and against; and to the subversion of the said fundamentall Lawes, extending such his power, to the goods, free-holds, inheritances, liberties, and lives of the people.
And in the sixt Article of his said impeachment it is laid unto his charge, as a transcendent treasonable crime, That the said Thomas Earle of Strafford, without any legall proceedings, and upon a paper Petition of Richard Rolstone, did cause the said Lord Mo [...]nt Norris, to be disseized and put out of possession of his free-hold & inheritance, without due processe of Law.
And in the seventh Article, he the said Earle is charged, That in the terme of holy Trinity, in the 13 yeare of his now Majesties raigne, did cause a case, commonly called the case of Tenures upon defective Titles, to be made and drawne up without any Iury or tryall or other legall processe, without the consent of parties, by colour of which lawlesse procedings, divers of his Majesties subjects (and particularly the Lord Tho: Dil [...]on) were out [...]ed of there possessions and disseized of there free-hold by colour of the same resolution, without legall preceedings, whereby many hundreds of his Majesties subjects were undone and their families utterly ruinated.
And in the 8. Article, he is impeached, That upon a petition of Sr Iohn Gilford Knight, the first day of Febr. in the said 13 yeare of his Majesties raigne, without any legall processe, made a decree against Adam Viscount Loftus of Elie, and did cause the said Viscount to be imprisoned and kept close prisoner, on pretence of disobedience to the said decree or order; & without any Legall proceedings, aid in the same 13 yeare imprison, George Earle of Kildare against law, thereby to inforce him to submit his [Page] [...]itle to the manner and Lordship of Castle L [...]igh (being of great [...]early value) to the said Earl of Strafords will and pleasure, and [...]pt him a yeare a prisoner for the said cause, [...]e moneths wher [...] he kept him close prisoner All which charges you may at larg reade in the 123, 124, 125 pages, of a book called Speeches and Pallages, printed for W. Cooke, a Furnivah-Inne gate in Holborne, 1641., &c.
Now the Parliament it selfe or the Members thereof, being as Sr. Edward Cooke well declares (In his 4 part in [...]i [...]ts, published for good Law by their owne speciall orders) as subject to the Law, as other men (saving in the freedome of arrests, that so their persons may not be hindred from the discharge of their trust in the house, which their Country hath reposed in them) and unto whome till it be repealed, it is a rule, as well as to any other m [...]n in England whatsoever, especially in all actions or differences betwixt party and party; and that Parliament man that [...]hall say, that any Committee of Parliament, or the whole house is the Law, shews, and declares himselfe either ignorant of the Law, or a voluntary and willfull deceiver: for what is within their breasts I neither can know, nor any [...]nd to inquire after for to know or take notice of,see Englands birthright p 3. 4. 5, 6, 7, 8. neither is any thing therein (till it be legally put in writting, legally debated, passed, and legally published) binding in the least unto me or [...]ny man in England: and indeed to speak properly, the Parliaments worke is to repeale old Laws and to make new ones, to pull down old courts of justice and erect new ones, to make warre and and conclude peace, to raise money and see it rightly and providently disposed of (but themselves are not in the least to finger itfor the third Article in the first impeachment of the Earle of Straford in the abovesaid book pag 118 runs thus; that the better to inrich and in able himselfe to to go thorow with his traiterous designes, he hath detained a great part of his Majesties revenue, without giving legall account, and hath taken great summs out of the Exchequer, converting them to his owne use when his Majesty was necessitated for his owne urgent occasions, and his armie had been along time unpayd.) it being their proper work to punish those [...]at imbezle and wast it, but if they should finger it and wast it, may not the Kingdome easily be chetted of its treasure, and also be left without meanes to pun [...]ish them for it [...] and most dishonorable it is, and below the greatnesse of Legislators a sloop to be executors of the Law, and indeed it is most irrationall and unjust they [...]ould, for if they doe me injustice I am rob'd and deprived of my remedy, and my appeale it being no where to be made, but to them, whose worke it is to punish all [...]ile or evill administrators of justice: and therefore I wish they would seriously [...]igh there own words in their declaration of the 17 of Aprill, 1646. 2 part booke declarations pag 878. where to the whole Kingdome they declare, that they will [...], nor any by colour of any author it, derived from them, shall interrupt the ordinary cause of justice in the severa [...]l Courts and Iudicatories of this Kingdome, nor inter [...]eddle in cases of private interest, other where determinable, unlesse it be in case of [...]ale administration of Iustice, wherein we shall see [say they] and provide, that [...]ight be done, and punishment inflicted, [...]s there shall be occasion, according to [...] Lawes of the Kingdome, and the t [...]ul [...] reposed in us.
And therefore seeing that by the Law of their owne will, without due course [...] processe of Law, or any visible shadow or colour of Law; the Committee of plun [...]ed Ministers will Rob the Citizens of their proper goods, which is not in the least [...]iable, for as Iudge Crook in the sixty, first pag of his Argument in Mr. Hampdens [...]ause against ship money, saith, that the Law book called the [...]r. [...]nd stud [...]ers Chap 5. pag. 8 setting dowre, that the [...] doth vest the absolute, propertie of every wans go [...]ds [...]h [...]u self [...]; and that they [...] he taken from him [...]ut by [...] [...]s (legall) consent, saith, that [...]s the reason, if they be t [...]en f [...]om h [...]m, the party shall answere the full value, thereof in damage, and so (saith judge Crooke) I conceive that the party that doth this wrong to an other, shall be [...]des the damages to the party, be imprisonn [...]d and pay a [...] K [...]ng, which in the Kings-bench it the tenth part [...]asmuch she payeth to the party, so then if the King w [...]ll pu [...]nish the wrong of taking of Goods without consent be [...]eu party and party, much more will he not by any prerogat [...]ve take away any mans goods without his assent particular or generall.
But if they will either have your goods or your libertie from you by the Law of their own will [...], be sure you play [...] Englishmen, not foolishly or Willingly to bettary your liberty into their hands, but in this case, part with them at [...] would part with your purse to a Theese that robs you upon the high way, for the forementioned Lawyer in the mentioned 8 pag. saith, that by the prime Laws of reason and nature (which are the Laws of God) it is lawfull for m [...]n to defend himselfe against a [...] un [...]st power, so hee keep one distance, so that if they will have your goods, let [...]em distraine for them, and then you may replevy them, and thereby at law try the title of their right, and it they [...]ll imprison your person, go not but by force, & be sure to stand upon the legality of the warrant, which that you may [...]lly and truly understand the forme of it; I shall give you at large the words of Sr. Edward Cooke in the 2 part of his [...] fol. 590, 591, 592 published by the Parliaments owne authority for good Law, who being expounding the [...]tatute of breaking prison, made in the 1. E. 2. upon the words, without cause, &c. fo 590. expresly saith, this act speaking [...] a cause is to be intended of a lawfull cause; and therefore false imprisonment is not within this act.
Imprisonment is a restraint of a mans liberty; under the custody of another, by lawfull warrant in deed or Law [...]wfull warrant is, when the offence appeareth by matter of record, or when it doth not appeare by matter of Record,
By matter of Record, as when the party is taken upon an Inditement at the suite of the King, or upon an Appeal at the suite of the Party: when it doth not appeare by matter of Record, as when a felony is done, and the offend [...] by a lawfull Mitimus is committed to the Goale for the same. But between these two cases, there is a great diver [...] ty: For in the first case, whether any Felony were committed, or no, If the offender be taken by force of a Copia [...] the warrant is Lawfull; and if he breake Prison, it is a felony albeit no felony were committed. But in the the othe [...] case, if no felony be done at all, and yet he is committed to prison for a supposed Felony, and breake Prison, this no Felony, for there is no cause. And the words of this Act, areSee Magna Charta Chap. 1 [...] [...]ilesse the cause for which he was taken require such a judgement] so as the cause must be just, and not [...]eigned; for things feigned require no judgement.
If A. give B. a mortall wound, for which A. is committed to Prison, and breaketh Prison, B dyeth of the woun [...] within the yeare, this death hath relation to the stroke; but because relations are but fictions in Law, and fictions are not here entended, this escape is no folony, 11 H. 4 11 Plowd. co [...]. 401 Cole [...] case.
Seeing the weight of this businesse, touching this point, to make the escape, either in the party, or in the Goale [...] felony, dependeth upon the lawfullnesse of the Mitimu, it will be necessary to say somewhat 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 maketh the Mitimus, and to be directed to the Goaler or keeper of the Goale or Prison: Secondly, It must containe the case [as it expresly appeareth by this Act [b] unless the cause for which he was taken &c] but not so certainly as an Inditement ought,25 E. 3 42. B. Coron. 134. 32. E. 3. Coron. 248. 9. E. 4. 52. and yet with such convenient certainty, as it may appeare judicially, that the offence requires such a judgement; as for high treason, to w [...]t, against th [...] person of our Lord the King; or for the counterfit [...]g of he money of our Lord the King; or for Petty Treason; namely, for the [...]eath of such a one, being his master; or for felony, to w [...]t, for the death of such a one, &c. or fo [...] Burglary or Rober [...], &c. or for fellony, for Stealing of a Horse, &c. or the like, so as it may in such a Generalli [...] appeare judicially, that the offence requires such a judgement.
And this is proved both by reason, and authority. By reason; first, for that it is in case of felony [ [...] which doth induce, or draw on the last Punishment] and therefore ought to have convenient certainty, as at i [...] aforesaid Secondly, Also it must have convenient certainty, for that a voluntary escape is felony in the Goaler. Thirdly, I the Mit [...]mus should be good generally [for felony] then, as the old rule is, [the ignorance of the Iudge shoul [...] be the calamity of the innocent:] for the truth of the case may be, that he did steale Charters of Land, or woo [...] Growing, or the like, which in Law are no felonies; and therefore in reason, a case of so high a nature concerning the life of man, the convenient certainty ought to be shewed.
By Authority, The constant forme of the inditement, in that case for escape, either by the Party, or voluntarily suffered by the Goaler, is, That he was arrested [for suspicion of a certaine felony, namely, for the death of a certa [...]ne man, M [...]N feloniously slaine, or the like; for the inditement must rehearse the effect of the Mitimus, which directly proveth, that the cause in such a g [...]nerall certainty ought to be shewed. vid 25 E. 3. fol 42.
Also if a man be indited of Treason, or indited or appealed for Felony, the Capias thereupon, whereby the part is to be arrested, comprehendeth the cause (and therefore much more the Mittimus) where the party it t [...] be arrested, having no such ground of Record, as the Capias hath; must, pursuing the effect of the Capi [...]s, comprehend the case inconvenient certaintie, 25 E. 3. fol. 42. Pl. 32. there ought to be a certaine cause; and in the sa [...] leafe, Pl. 35. in case of breaking of Prison, the cause of the Imprisonment ought to be shewed.
If a man bee indited (that hee breake Prison feloniously, &c.) generally, it is not good; for the inditeme [...] ought to rehearse the specialtie of the matter according to the Statute, that he being Imprisoned for felony, & [...] brake Prison: We have quoted many other bookes, which though they be not certainly reported,9 E. 4. 26 41. ass 5. 22. E. 3. Coron. 242, 243, 248 43. E. ibid. 424. 3 E. 3. ibid. 3 [...]2, 328, 333, 345, 346 2 E. 3. fol. 1. 26. ass. 51 22 E. 3. 13. 27. ass. 42. 27. ass. pag. 116. 15 E 2. Coron. 38. 9 H. 4. 1. 10 H 4, 7. 11. H. 4, 11. 8 E. 2. Coron. 422, 430, 431. 27 H. 6. 6, 7. 36 H. 6, 33. 1 K. 3. cap. 3. 2 H. 5. cap. 7. 21 H. 7, 17. as might have been wished, yet the judicious Reader will ga [...] fruit of them. But see before the exposition of Magna Chrata, Chap. 29. [by t [...] law of the Land] and observe well the words of the Writ of Habeas Corpus, fo [...] direct proofe, that the cause ought to be shewed.
Lastly, see, hereafter in the exposition of the Statute of Articulicleri, the re [...]u [...] tion of all the Iudges of England; the answer to the 21 and 22 objections, which will in no sort abridge for the Excellency thereof; but referre you to the fountain themselves.
Hereupon it appeareth, that the common Warrant or Mitimus, to answer to [...] things as sh [...]ll be objected against him, is utterly against law.
Now as the Mitimus must containe the cause, so the conclusion must be according to law; viz. The Prisoner safely to be keepe, untill he be delivered by due order Law, and not untill he that made it, shall give order or the like.