free people: Seeing those men that now sit at Westminster, and pretendedly stile themselves the Parliament of England, and who are as they say (although most falsely) in the Declaration for a free state, dated March 17, 1648, page 27, intrusted and authorized by the consent of all the people of England, whose representatives they are; make it their chiefest and principallest work continually to part and share amongst themselves all the great, rich, and profitable places of the nation; as also the nation's public treasure and lands; and will not ease our intolerable oppressions, no not so much as of late receive our popular petitions." The truth of the words of the last passage of this extract sent the sting of the libel home. 1 2 The language of many passages produced from Lilburne's 1 State Trials, vol. iv. p. 1365. In addition to the specimens already given of the language used by Lilburne, I will add here a few more examples. From "The Apprentices' Out-cry" the Attorney-General ordered the clerk to read the following passages: "But even our Parliament, the very marrow and soul of all the people's native rights put down, and the name and power thereof transmitted to a picked party of your forcible selecting, and such as your officers, our lords and riders, have often stiled no better than a mock parliament, a shadow of a parliament, a seeming authority, or the like, pretending the continuance thereof, but till a new and equal representative by mutual agreement of the free people of England, could be elected; although Low for subserviency to their exaltation and kingship, they prorogue and perpetuate the same, in the name, and under colour thereof, introducing a Privy Council, or, as they call it, a Council of State, of superintendency and suppression to all future parlia- "We are compelled to do the utmost we can for our own preservation and the preservation of the land of our nativity, and never by popular petitions, &c., address ourselves to the men sitting at Westminster any more, or to take any more notice of them, than as 1649.] LILBURNE EXCEPTS TO COL. PUREFOY AS A WITNESS. 221 publications was clearly enough treason according to the new laws of treason of May and July last, which new laws going beyond the law of treasons of Edward the Third made bare words treason. The charge of stirring up mutiny in the army was not established farther than that written words such as I have quoted, addressed to the soldiers specially, have a tendency to stir up mutiny. Moreover the Attorney-General and the Court appear not to have considered the case against the prisoner strong on this point, and to have felt the force of Lilburne's observation in his defence: "the testimony doth not reach to accuse me of any evil or malicious counsel given them [three soldiers whom he met accidentally] or any aggravations of spirit, as though I did incense them against their officers, thereby to stir them up to mutiny and rebellion. For truly I have made it my work, to be as sparing of my discourse as I could be, in the company of any belonging to the army; yea, and to shun coming nigh the place, if I can avoid it, where they are.' When Colonel Purefoy was sworn as a witness against the prisoner, Lilburne said:"Under favour but one word, I crave but one word, I have an exception. First, Colonel Purefoy is one of those that call themselves the keepers of the liberties of England; and for committing crimes against them I am indicted, and he is one of them and therefore a party, and in that respect in law he can be no witness against me. It would have been very hard for the king to have been a witness against that man that was indicted for committing crimes against him, such a thing in of so many tyrants and usurpers," page 11, in State Trials, vol. iv. pp. 1353, 1354. From "The Preparative to a Hue-and-Cry after Sir Arthur Haselrig"-"That those men that now sit at Westminster are no parliament either upon the principles of law or reason." Page 2, in the margin.-State Trials, vol. iv. p. 1354. 1 State Trials, vol. iv. p. 1384. all his reign was never known." To this the AttorneyGeneral's answer was:- "Mr. Lilburne, you are mistaken; Colonel Purefoy is a Member of Parliament, he is none of the keepers of the liberties of England." This is a strange assertion on the part of the Attorney-General, when the writ of the Parliament ran thus-" Custodes Libertatis Angliæ, auctoritate Parliamenti Vicecomiti salutem." 2 Does not this prove that the members of the Parliament in the aggregate and the Custodes Libertatis Angliæ in the aggregate were identical? and that each member of Parliament was a member of this body constituting the sovereign in England at that time. Lilburne also showed that one of the publications specified in the indictment, namely his "Agreement of the People," which, as has been shown, was very different in some things (though similar in many others) from Ireton's "Agreement of the People," bore a date anterior to the date of any of those new acts under which he was indicted, and therefore was not within the compass of it.3 When the Attorney-General had ended his address to the jury, the foreman said, "We desire the Act of Treasons to make use of." "Lilburne. I beseech you hear me a few words: they desire to have it along with them. Sir, with your favour, I shall humbly crave liberty to speak a few words: I shall keep me close to that which is my right and my duty, and that is to the matter of law in my indictment. There are many things put into the indictment by the testimonies of witnesses now sworn, that are pretended to be acted in several counties. Whether that be according to law, or no, I do not know whether you will judge it so or no; but 1 State Trials, vol. iv. p. 1342. 7 Martii, 1648. 3 State Trials, vol. iv. p. 1388. sure I am, if either those express statutes that I have already cited to the jury, or the third part of Coke's Institutes, be law, I ought not to be tried for treason but by a jury of the next neighbourhood, in the self-same county the fact is pretended to be committed in. And therefore it is very questionable to me, whether my indictment be legal, for that it chargeth me with facts of treason committed in three several counties; and that being matter of law, I desire counsel to argue that point, in the first place. There are also a great many things arise out of the matter of fact that will be points of law likewise. There were never two clear and positive witnesses to one fact sworn against me; but to most of the particular [alleged] treasons there is but one a-piece; and I cannot yield that to be legal, but questionable in law, which I desire counsel to dispute. I know not of any of all the books fixed upon me, but the "Outery," that hath two plain witnesses to it; and yet it is not sworn that I am the author of it. The state of the fact is this: that I was at the printer's before the copy was taken away; and that I gave one of those books to a soldier. To sum up the notes of the matter of fact that thereon hath been endeavoured to be proved, is too hard a task to be done by me immediately; and therefore I conceive it but just for you to assign me counsel, to agree with the counsel against me what are the points of fact upon the proof, from which the points of law are to be deducted. This, with a larger privilege, was granted by one of your own brother judges to Major Rolfe last year, as his right by law; and I do again appeal to Mr. Justice Nichols, then one of Rolfe's counsel, for the truth of this. I pray speak, sir; is it not true?" [But the judge sitting "as if" says the contemporary report, "he had neither life nor soul," Lilburne went on: ]- "I hope, sir, it doth not enter into your thoughts presently to put me to an undigested extemporary answer to so large an indictment as that is that hath been read against me, that it is impossible for any man, if his brain were as big as the biggest magazine in London, to carry it in his head. I hope you do not lie upon the catch, to weary and tire me out, by putting more upon me than a horse is able to endure; and then go about to hang me, because I, through tiredness, want bodily strength and abilities to make and pronounce my defence."1 "Free yourself To this the answer of the Court wasfrom the matter of fact, if you can, and then make it appear that from the matter of fact law arises. But if you do not first make out this, which is the issue upon the point, to answer the matter of fact, we cannot allow you any counsel." "Lilburne. There is Judge Nichols, that I understand was one of Major Rolfe's counsel and I understand from Mr. Maynard's own mouth, that he and Mr. Maynard were by Baron Wyld assigned of Rolfe's counsel, in case of the highest treason that the law of England ever knew, and that before the grand inquest found the indictment; and that Mr. Maynard, &c. had liberty as Major Rolfe's counsel, by Baron Wyld's order, to stand in the Court, not only to hear the witnesses sworn, but also to hear the words of their testimony, then caused by the judge to be given in open Court. And there being but two witnesses to two facts contained in the indictment, Mr. Maynard, upon the allegation of the two statutes of Edward the 6th, that requires two witnesses to the proof of every fact of treason, and that to be plain and clear, overthrew Rolfe's indictment in law, that it was never found; and so saved the 1 State Trials, vol. iv. pp. 1373-1375. |