No Martial Law, BUT ADVICE For the Grand Inquests of London, and Middlesex, and may serve generally for the whole Kingdom. Written by a London Apprentice, on the behalf of his fellow Apprentices, 1648. Printed in the Year, 1648. No martial Law, etc. Gentlemen, LIfe and Liberty are the fevorites of Law, of these the King cannot (without breach of his Oath) deprive the meanest Subject but by legal proceeding, which only distinguish the lawfully executed Malefactor from the untimely murdered innocent. So tender is the Law over every man's life, so strict in preservation of her own rules, that if the Sheriff beheads him whom the Law condemned to be hanged, 'tis Stamf. plea, tit. felony, fo. 13. murder in the Sheriff, for the Sheriff not pursuing the judgement and warrant of the Law, doth contrary to the Law, and thereby murders him whom he should have executed: And surely that Law that is so tender over those, her own hand marked out for death, as not worthy to live is zealous over such as never transgressed her statutes. Offences deserving death are many, and many the manners of death, differenced only by the nature of the offence; yet for all offences, for all deaths there is but one trial. viz▪ By Peers, according to Mag. Chart. the Statutes of 5. Edw 3. and 28. Edw. 3. Mag. Chart. is that no man be imprisoned or diseised of his Freehold or Libertys or Customs, or be outlawed, or exiled, or otherwise destroyed, nor we will not pass upon him nor condemn him, but by lawful judgement of his Peers or Law of the Land. 5. Edw. 3. Cap. 9 is that no man shall be attached, nor forejudged of life or limb, contrary to the great Charter. 28. Edw. 3. cap. 3. is, no man shall be imprisoned, nor put to death, without being brought to answer by due process of Law. These statutes exclude all trials, but by Peers, as for Barons to be tried by Barons, Commoners by Commoners, which is our jury of twelve men, and Commoners cannot wave their Peers, to be tried by Barons, nor Barons theirs to be tried by Commoners, as was resolved in the Case of my Lord Dances. Much less may we wave 26. H. 8. the Common Law trials to be tried by Martial law, for that were to consent to self murder; for Sir Edw. Cook Cook 3 part of the Institutes fol. 52. saith, that if a Lieutenant, or any one that hath Commission to execute Martial law, put any man to death in time of peace, this is murder and against Mag. Chart. Times of peace with the ancient Romans were denoted by the shutting of Janus Temple. And with us by opening Westminster hall, the Chancery, the King's Bench, and Courts of justice: and therefore in the Case of Thomas 4. E 3. 39 Ed. 3. 42. Ed. 3. numb. 13. Co. 2. part of the Institutes fol. 48. Co. 3. part of Instit. fol. 52. Earl of Lancaster, who was taken in open Rebellion and put to death; in the Case of the Earl of Arrundell, John of Gaunt, and others, the proceed were adjudged unlawful because by Martial Law in time of peace, when the Chancery, the King's Bench, and other the King's Courts were open. If these though Military men and guilty of Crimes, the Common Law would punish with death, might not be condemned and executed by Martial law when the Chancery, King's Bench, and Courts of justice were open; how could we then in London condemn and execute by Martial law Mr. Tompkins a Gown-man, Mr. chaloner a Citizen while the Courts of justice were open, a Parliament sitting at Westminster, a Goal delivery in London? Nay while Mack Mahoon, and Mack Quire (Soldiers) were tried at Westminster by the Common Law condemned, executed by the Common Law: But the reason is apparent, for these men were charged with Rebellion against the King, a crime that the Common law doth punish with death; Mr. Tompkins and chaloner charged with what the Common law would justify, not call a crime; yet because policy (not justice) would that they should die, therefore the Martial law must hang whom the Common law would not. And upon the same reason Sir John Hotham and his Son, though Parliament men, were (without breach of Privilege) executed by Martial law: Whereupon a Cavalier said wittily, that it was the best piece of bad justice hath been done since the two houses reigned; for when contrary to law the Houses had justified them in treason for keeping Hull from the King, it was but fit to hang them when they would not be so honest as to restore Hull to the King: And here give me leave (though with digression) to observe to you what another observed to me upon their deaths: That as their first act being treason was by colour of Law yet against law justified as legal and they rewarded, so their second fact being lawful, was by colour of law yet against law, adjudged illegal, and they executed. And that their sufferings might in justice be referred to their first fact, on the same day the month they severally entered Hull, on the same day the month they severally died; for young Hotham outriding his Father first entered Hull, on new years day, 1641. But Sir John Hotham, whom age and six Wives had detarded, did not enter Hull until the second of January, 1641. and therefore on new year's day 1644. young Hotham was beheaded, and Sir John Hotham not until the second of January, Justus es domine & justa sunt judicia tua; but to return. When these men suffered, there was some shadow, some colour for Martial law: For then there was an opposite army on foot in the land, but now for these two years there hath been no Army, no enemy in the Land but the two Houses, and their Army, all Courts of justice at Westminster freely open, yet we have ou● fellow Subjects, some murdered, some imprisoned, others distreined, as Robert Arnoll of Colonel Lilbornes' Regiment executed, the fifteenth of November, 1647. William Tompson taken from the Parliament door by Lieutenant General Cromwell, and by him committed to White hall, and after by Martial law condemned to be shot to death. Mr. Pledwell in Fleetstreet hath his goods destrained by Martial power, while the Chancery is open, the King's Bench open; nay while the Parliament sits: that Parliament that condemned the Earl of Strafford, for sentencing to death (not executing) by Martial law, the Lord Mount Norris for billeting Soldiers and taking distresses by Martial law, etc. But beyond all these, is the Sabbath days work, the ninth of April, wherein the Lord Mayor and Commissioners for the Militia of London, out-acts all the illegallities of Strafford, all charged by Mr. Lilborne on Lieutenant General Cromwell, for the Lord Strafford put none to death, and while Mr. Cromwell a Martial Officer doth but execute Martial law upon Military men for breach of Military orders; the Lord Mayor a Civil Officer, draws out Military men, and power to execute a Civil not Military order, these do not sentence nor destraine, they kill their fellow Subjects; for while the Ordinance doth direct that such as profane the Lords day should pay five shillings, if above fourteen years of age, if under, their friends twelve pence, these shoot and kill without distinction, children of nine or ten years of age, & choose rather to commit murder on the Sabbath then permit children to play at Cat on the Lord's day. But to find whether these proceed (by military power) A brief and perfect relation of the ans. of the Earl of Straff. fol. 11. 12. Mr St. John's Argument. be actions of arbitrary, and tyrannical government; examine, and compare them with the charges against the Lord Strafford, where the condemning the Lord Mount Norris by Marshal Law, the billeting Soldiers upon Subjects against their will, and executing papar Orders by Marshal Law in time of peace, is adjudged by this present Parliament, a subvertion of our fundamental Laws, and an introducing of an Arbitrary, and Tyrannical government; next if ye examine, and compare them with the rule and dictate of our settled and known Law (to which all military proceed are opposite and destructive) and which if ye countenance, nay, if ye withstand not, ye are guilty of their past Facts, guilty of breaking the Protestation, the Solemn League & Covenant with God to maintain, and protect the King's person, his honour and estate, the rights, privileges, and liberties of the Subject; for all these are in the custody of the Law, and if the Law be not preserved all these are violated, the Law said Mr. Pym puts the difference Mr. Pym speech against the Lord Straf. between good and evil. just and unjust, our honours, lives, liberties, and estates are all in the keeping of the Law, without Law all men have a like property to every thing, and every man to nothing, for us therefore to execute, or permit to be executed, this Arbitrary, this Tyrannical government of Marshal Law, while the Chancery is open, the King's Bench open, and others, the Courts of justice open; we commit treason, murder, rapine, oppression, perjury, for saith Mr. Pym, Arbitrary government comprehends Mr. Pym speech against the Lord Straf. all offences: Treason by subverting the Laws, suppressing the old, and by force introducing a new government, nay, new Governors, Treason enforcing by Military Mr. St John Argument of Law against Lord Straff. powers, the King's person from Holmby to New Market; Treason in detaining by Military power the King's Person in prison, and forcing papers or aught else from his Person, much more in assaulting his Person, and surely where his Person is thus endangered, his Crown is not safe, his Honour nor Estate preserved, when by Martial Law we condemn and execute any man that may be tried by Common Law we murder him: For although the offence deserves death, yet dying by Martial Law which is illegal, we murder him whom the Law would have hanged. All freequarter is Martial oppession, all plunder, all distress by Soldiers, rapine and theft; all these against Magna Charta, against our Petition of Right, against our Protestation, against our selemne League and Covenant; because against our Rights and Previledges. You Gentlemen, are the eyes the ears, the tongues of the County to search out, to hear and to inform the Courts of justice of these Treasons, these Murders, these Rapines, these Thefts and Oppressions; if ye (Gentlemen) be silent in these Crimes, ye make yourselves not only guilty of the past facts, but of the like in the future, for the impunity of the first invites the second offence, which hath so multiplied these sins upon our Nation that custom hath almost made them lawful: Let therefore your inquiry be speedy and strict, not pitying the poor, be he Common Soldier or Apprentice, nor sparing the rich, be they the great Officers of the Army or Major or the Committee of Militia of the City, (who deserve chiefly to be indicted and executed for the late tumult) yours is only the cognizance and presentment of crimes, that done ye saved your own souls; the resolution and judgement of Law is the duty of the bench, which if the judge's neglect, sin is at their door, Mercy is the Kings, and lodge only in his bosom, and if any Rebel sons follow Ahitophels' advice and defile their Father's Concubine, may they want what they pretend to give mercy, and in their flight meet with Absalon's Oak, and Joabs' gentle dealing, while ye as faithful servants to your David return to your own houses, and sit under your own Vines and your own Figtrees. Per me John Whittington, near Dowgate. FINIS.