from the doctrine, worship or discipline publicly held forth, as aforesaid, shall not be restrained from, but shall be protected in, the profession of their faith and exercise of religion, according to their consciences, in any place except such as shall be set apart for the public worship; where we provide not for them, unless they have leave, so as they abuse not this liberty to the civil injury of others, or to actual disturbance of the public peace on their parts. Nevertheless, it is not intended to be hereby provided, that this liberty shall necessarily extend to Popery or Prelacy. 4. That all laws, ordinances, statutes, and clauses in any law, statute, or ordinance to the contrary of the liberty herein provided for, in the two particulars next preceding concerning religion, be, and are hereby, repealed and made void.

"Tenthly. It is agreed, that whosoever shall, by force of arms, resist the orders of the next or any future Representative (except in case where such Representative shall evidently render up, or give, or take away the foundations of common right, liberty, and safety, contained in this Agreement), he shall forthwith, after his or their such resistance, lose the benefit and protection of the laws, and shall be punishable with death, as an enemy and traitor to the nation." 33

The trial of the King, which began the day when the Agreement was presented, afforded an excuse for the postponement of the consideration of the latter which was never resumed. Cromwell soon acquired sufficient strength to abandon it. And Lilburne with some of his fellow agitators was, on March 28th, 1649, again imprisoned in the Tower, whence he sent forth a hurricane of pamphlets attacking the arbitrary proceedings of the Rump Parliament. 85 A third Agreement of the People sent by him to the soldiers contained the following article which was subsequently included in the charges of treason made against him:

"And all laws made, or that shall be made, contrary to any part of this Agreement are hereby made null and void." 36

Another mutiny arose, but was promptly quelled, and discipline in the army finally restored. To silence Lilburne and the rest a new law of treason was enacted by the Rump Parliament:

"That if any person shall maliciously or advisedly publish, by writing, printing or openly declaring that the said government is tyrannical, usurped, or unlawful; or that the Commons in Parliament assembled are not the supreme authority of this nation, or shall plot, contrive or en

33 Gardiner's Documents of the Puri

tan Revolution, pp. 279-281.

34 Borgeaud, pp. 91, 92.

The names of a number of them

are given by Borgeaud.

36 An Agreement of the Free People of England, tendered as a Peace offering to the distressed Nation. London, May 1, 1649. (British Museum, 552 [23].) Howell's State Trials, vol. iv, p. 1363.

66

deavour to stir up or raise force against the present government, or for the perversion or alteration of the same, and shall declare the same by any open deed; that then every such offence shall be taken, deemed, and adjudged by the authority of the present Parliament to be High Treason.” 37 The act also made it treason for a civilian to try to stir up a mutiny in the army. Nothing daunted, Lilburne, while in the Tower proceeded to break the law by a number of publications. He was indicted for high treason under the statute on account of his publication of “A Salva Libertate"; "An Impeachment of High Treason against Oliver Cromwell and his son-in-law John Ireton Esqrs., late members of the late forcibly dissolved House of Commons, presented to public view by lieut. colonel John Lilburne, close prisoner in the Tower of London, for his real, true, and zealous affection to the Liberties of this nation"; "An Outery of the Young-men and Apprentices of London, or an Inquisition after the lost fundamental laws and liberties of England, directed Aug. 29, 1649, in an Epistle to the private Soldiers of the Army, especially all those that signed the solemn Engagement at Newmarket Heath the 5th of June, 1647, but more especially the private Soldiers of the General's regiment of horse, that helped to plunder and destroy the honest and true-hearted Englishmen, traitorously defeated at Burford, the 15th of May, 1649"; "A Preparative to an Hue and Cry after Sir Arthur Haslerig"; and "The legal and fundamental Liberties of the People of England, revived, asserted and vindicated." The first of these books he had given to the lieutenant of the Tower as a protest against a warrant to bring him before the Attorney-General. "The Outery of the Apprentices" he had given to some soldiers. In these books he had deliberately violated the statute by speaking of "the present tyrannical and arbitrary, new erected, robbing government"; saying on the first page of one :

38

"I have fully, both by law and reason, undeniably and unanswerably proved that the present Juncto sitting at Westminster are no Parliament at all in any sense, either upon the principles of law or reason, but are a company of usurping tyrants and destroyers of your laws, liberties, freedoms and proprieties, sitting by virtue of the power and conquest of the sword." 39

He had also said:

"Granting that the Parliament hath power to erect a court of justice to administer the law, provided that the judges consist of persons that are

87 Acts of May 14, 1649, and July 7, 1649; Howell's State Trials, vol. iv, pp. 1347-1351.

38 Impeachment of High Treason against Oliver Cromwell.

89 Ibid., p. 1.

not members of Parliament, and provided the power they give them be universal, that is to say, to administer the law to all the people of England indefinitely, who are all equally born free alike, and not to two or three particular persons solely; the last of which for them to do is unjust, and altogether out of their power.'' 40

Lilburne's wife and family petitioned for a suspension of the proceedings, that they might have time to persuade him to make submission. He would, however, make no propositions, except first to submit the case to twelve judges, one to be selected by himself, the rest by his adversaries; then that he be released under a promise to emigrate to the West Indies within six months,

"Provided, that all those that are free and willing to go along with me of what quality soever, may have free liberty at their pleasure to go, and provided, seeing many of those I know willing to undertake the journey, are made very poor by reason of their sufferings in the present distractions, may have all such monies justly paid unto them, as is owing them, either upon arrears, for faithful service already done, or for monies lent to the public, that so they may be the better enabled for their journey, they engaged thereupon to go; and provided, that other that are willing to go, and are so very poor, that they cannot transplant themselves, may have from the public some reasonable allowance for that end, this being the land of their nativity, where by the law of nature, they may challenge a subsistence; and therefore it is but just, seeing their company and principles are a burthen and trouble to the men in present power, that they should make their willingness (for peace-sake), able to transport themselves into a desart, where, with industry, and the blessing of God thereupon, they may expect a livelihood, and this, with the engagement of the present power, for a peaceable protection while we stay here in England, and for their assistance for a reasonable convoy in some part of our journey, I will engage in security, I will not act against their power, during my stay in England, directly or indirectly; but for me to engage singly to go alone, seeing I know no plantation already planted; but I would sooner chuse, to be cut in pieces in England, than engage to go to it: therefore particularly I shall not engage, without terms above said, come life, come death, to which I shall stand.” 41

Finally, moved by the tears and importunities of his wife, he petitioned:

"That my Trial, (so suddenly intended) may for some reasonable time be suspended, that so I may have time to hear and consider what many of

40 Lilburne, The legal and fundamental Liberties of the People of England revived, asserted and vindicated. See

also his Picture of the Council of State. 41 Howell's State Trials, vol. iv, p.

1426.

them say they have to offer by way of reason and argument, to persuade me to what at present my conscience is not convinced of. And I should likewise be desirous, if your house should judge convenient, that some competent number of gentlemen of your house might be permitted to debate with me those particulars, wherein I have appeared most to differ with other men's judgments: whereby possibly rational arguments may be so strongly urged, as peradventure may give such satisfaction as may tend to the reconciling many differences and distractions; upon the knowledge of the acceptance of which, during all that time of suspension of trial, I do hereby faithfully promise not in the least to disturb those that shall grant me this favour, being not so apt to make disturbance as is conceived."

1942

At his trial, in October, 1649, though barely thirty years of age and without legal training, he conducted his defense single-handed against bench and bar in a most masterly manner. The court-room was packed with his friends, who influenced the jury by expressions of their sympathy, so loud that several companies of soldiers were brought to the neighborhood to keep order. He so continually complained of the unfairness of the prosecution, that he put both the prosecutors and the judges, throughout the case, upon the defensive. His arguments in favor of his demand that counsel should be allowed him in the defense of a criminal prosecution, as they would have been in a civil action, were a just arraignment of the barbarous system of criminal jurisprudence that then prevailed. He refused to admit the publication of the books, although frequently asked about the facts, justifying himself against the criticisms of his prosecutors for this action by the example of Christ before Pilate. His concluding argument consisted of technical objections to the proof of his publication of the books, combined with complaints about the injustice of his treatment, and reference to his services in the cause of religious freedom. The peroration was as follows:

"I have almost done, Sir; only once again I claim that as my right which you have promised. That I should have counsel to matter of law; and if you give me but your own promise, which is my undoubted right by your own law, I fear not for my life; But if you again shall deny both these legal privileges, I shall desire my jury to take notice, that I aver you rob me of the benefit of the law, and go about to murder me, without and against law and therefore, as a free-born Englishman, and as a true Christian that now stands in the sight and presence of God,with an upright heart and conscience, and with a chearful countenance, cast my life, and the lives of all the honest freemen of England, into the hands of God, and

42 Howell's State Trials, vol. iv, pp. 1432, 1433.

his gracious protection, and into the care and conscience of my honest jury and fellow-citizens; who I again declare by the law of England, are the conservators and sole judges of my life, having inherent in them alone the judicial power of the law, as well as fact: you judges that sit there being no more, if they please, but cyphers to pronounce the sentence, or their clerks to say Amen to them: being at the best in your original, but the Norman Conqueror's intruders. And therefore, you gentlemen of the Jury are my sole Judges, the keepers of my life, at whose hands the Lord will require my blood, in case you leave any part of my Indictment to the cruel and bloody men. And therefore I desire you to know your power, and consider your duty both to God, to me, to your own selves, and to your country: And the gracious assisting Spirit and Presence of the Lord God Omnipotent, the Governor of heaven and earth, and all things therein contained, go along with you, give counsel and direct you, to do that which is just, and for his glory."

"The people with a loud voice cried, Amen, Amen, and gave an extraordinary great hum; which made the Judges look something untowardly about them, and caused major-general Skippon to send for three more fresh companies of foot-soldiers.” 43

The jury brought in a verdict of not guilty, which was greeted with popular applause and bonfires in the streets. Notwithstanding this, he was returned to the Tower and kept there imprisoned ten days longer, till he was released upon the warrant of Bradshaw.**

Shortly afterwards Lilburne was elected to the London Common Council, but his election was set aside, upon which he said; "I have been judged by man, but God will judge between Cromwell and me; then for a while dropped politics and set up as a soap-boiler.46

45

For two years Lilburne continued this trade, which he combined with that of a promoter of private claims before Parliament. He then excited the hostility of Parliament by his conduct in the prosecution of a claim for his uncle George Lilburne and Josiah Primate against Sir Arthur Haslerig, about a colliery in the County of Durham, which they claimed Haslerig had taken from them by force. The Committee reported in favor of Haslerig; whereupon the House voted acquitting Haslerig, determining the petition to be false, malicious and scandalous, directing it to be burnt by the common hangman, fining Primate and Col. Lilburne seven thousand pounds each, part of

48 Howell's State Trials, vol. iv, p. 1395.

44 Ibid., p. 1406.

45 Gardiner's Puritan Commonwealth and Protectorate, vol. i, p. 198.

46"The project of the wild levelling

representative is at an end since John Lilburne turned off the trade of statemending to take up that of soap-boiling." Merc. Politicus, June 12, 1650, quoted in Gardiner's Commonwealth and Protectorate, vol. i, p. 199, note 1.