from the Council of State to the Parliament, and then not to be a true oath, or false copy? that is not to be borne, that a false copy should sell a gentleman's estate, and that a false copy should be recorded to stand to all eternity. After the Reply was made, every Judge in Court spoke what they in their judgment thought fit, for the better direction of the Jury; whereapon the Jury withdrew, and the next day brought in their Verdict, that they found the said Faulconer Guilty of the Perjury mentioned in the Indictment. The Order following was thereupon made, viz. By the Court. "The Defendant was this day brought into court, under the custody of the marshal of this court, upon an Indictment for Perjury, whereanto he had formerly pleaded Not Guilty; and the Jury thereupon being impannelled, and sworn, found him Guilty of the Perjury in the indictment mentioned. And thereupon the said Faulc ner is committed to the custody of the said marshal; there to remain, until," &c. 192. The Case of Captain JOHN STREATER, on an Habeas Corpus,' at the Upper Bench in Westminster-hall, Mich. & Hil. Terms: 5 CHARLES II. A. D. 1653. The Habeas Corpus was read: BY the Keepers of the Liberty of England by authority of parliament. To the Keeper of the Prison of the Gate-house in the Liberty of Westminster, in the county of Middlesex, or to his deputy, these, greeting. We command you that the body of John Streater, in the prison under your custody detained, as it is said, together with the day and cause of his taking and detaining, by whatsoever name the said John is called therein, you have before us A passage in Ludlow's Memoirs (vol. 2, to appear before him in council; which we all p. 114. Edinburgh edition, 1751), which, on did, except sir Henry Vane, who told the mesother accounts, is curious and interesting, has senger he should be at his house at Charingtransmitted to us the Narrative of a Conference cross on a certain day. Cromwell, as soon as between that sturdy republican and the master he saw the Lord President, required him to take whom he had unwittingly made for himself, ou a new commission for his office of Chief in which the practice of arbitrary imprison-Justice of Chester; which he refused, alledging ment and the right to the Habeas Corpus were very boldly spoken of: The usurper having governed, as he thought, long enough by virtue of the Instrument of Government, which, though drawn up by himself and his creatures, was now thought to lay too great a restraint opon his ambitious spirit; and resolving to rest satisfied with nothing less than the succession of his family to the crown, he attempted to make himself king. To this end he thought it necessary to cali a parliament; and that he might engage the army to assist him in all parts to procure such men to be chosen as would be fit for his purpose, he pretended that this assembly was called cly in order to raise money for the payment of the army and fleet, to confirm the authority of the Major Generals, and that of the Instrome of Government. By this means he obtained his desires in a great measure; especially in Scotland and Ireland, where all kinds of artifice, and in many places the most irregular courses, were taken to get such men returned as were proposed by the court. But knowing the people of England not to be of so mercenary-a spi rit; and that as they were better instructed in the principles of civil liberty, so they were not wanting in courage to assert it, he used his utmost endeavours to disable and incapacitate such men from being chosen whom he thought most likely to obstruct his designs. In order to this, he summoned the Lord President Bradshaw, sir Henry Vane, col. Rich, and myself, that he held that place by a grant from the par- He in the Upper-Bench at Westminster, Wednesday next, after the morrow of St. Martin; to undergo and receive those things which our said Court of Upper Bench shall then and there order concerning him in this part. And this you must not omit at your peril. And have you then this writ. Witness Henry Rolle at Westminster, the 12th of Novemb. in the year of our Lord 1653. 4 ، (By the Court.) Er. BROUGHTON.", 6 Capt. Streater. My lord, I desire that this Prideaux (Attorney General). Nothing. Judge. What do you say to it? I know not why you should be an enemy to me, who have been faithful to you in all your 'difficulties.' I understand not,' said he, 'what you mean by my difficulties. I am sure they were not so properly mine as those of the public; for, in respect to my outward condition, I have not much improved it; as these gentlemen,' pointing to his council, well know.' To which they seemed to assent, by rising from their chairs: and therefore I thought not fit to insist farther on that point; contenting myself to say, that it was from that duty which I owed to the public, whereof he expressed such a peculiar regard, that I durst not give the security he desired; because I conceived it to be against the liberty of the people, and contrary to the known law of England. For proof of this I produced an Act of Parliament for restraining the council-table from imprisoning any of the free-born people of England; and, in case they should do so, requiring the justices of the Upper Bench, upon the application of the aggrieved party, to grant his Habeas Corpus, and to give him considerable damages. To this act I supposed he gave his free vote; assuring him, that, for my own part, I durst not do any thing that should tend to the violation of it. But,' said he, did not the Army and Council ⚫ of State commit persons to prison?' I answered, That the Council of State did so, but it was people from the dread of the magistrate, unless both will do that which is just and good. You do well,' said he, to reflect on our fears; yet I would have you know, that what I do, pro'ceeds not from any motive of fear, but from a timely prudence to foresee and prevent danger: that, had I done as I should, I ought to have secured you immediately upon your coming into England, or at least when you desired to be freed from the engagement you had ⚫ given after your arrival: and therefore I now require you to give assurance not to act against the government.' I desired to be excused in that particular, reminding him of the reasons I had formerly given him for my refusal; adding, that I was in his power, and that he might use me as he thought fit. Pray then,' said he, what is it that you would have? May not every man be as good as he will? What can you desire more than you have? It were easy,' said I, 'to tell what we would have.' What is that, I pray?' said he. That which we fought for,' said I, that the nation might be governed by its own consent.' 'I am,' said he, as much for a government by consent as any man: but where shall we find that consent? Amongst the Prelatical, Presbyterian, Independent, Anabaptist, or Levelling parties? I answered, Amongst those of all sorts who had acted with fidelity and affection to 'the public.' Then he fell into the commenda- by virtue of an authority granted to them by tion of his own government, boasting of the 'the parliament; and if the army had someprotection and quiet which the people enjoyed 'times acted in that manner, it had been in under it, saying that he was resolved to keep time of war, and then only in order to bring the nation from being imbrued in blood. I said, the persons secured to a legal trial; whereas that I was of opinion too much blood had been it is now pretended that we live in a tine of already shed, unless there were a better account 'peace, and are to be governed by the known of it. 'You do well,' said he,' to charge us 'laws of the land.' A Justice of Peace,' said with the guilt of blood; but we think there is he, may commit, and shall not I?' He is,' 'a good return for what hath been shed; and said I, a legal officer, and authorized by the we understand what clandestine correspond-law to do so; which you could not be, though ences are carrying on at this time between the 'Spaniard and those of your party, who make ' use of your name, and affirm that you will ' own them and assist them.' 'I know not,' said I, what you mean by my party; and can truly say, that if any men have entered into an engagement with Spain, they have had no advice from me so to do; and that if they will use my name, I cannot help it.' Then, in a softer way, he told me, that he desired not to put any more hardships on me than on himself; that he had been always ready to do me all the good offices that lay in his power; and that he aimed at nothing by this proceeding, but the public quiet and security. Truly, Sir,' said I, 6 you were king; because, if you do wrong therein, no remedy can be had against you. Therefore, if I have offended against the law, 'I desire to be referred to a Justice of the Peace, that I may be proceeded with according to law; but if I have done nothing to deserve a restraint, that then I may have my liberty.' Whereupon being commanded to withdraw into a room next to the council chamber, I heard major general Lambert to advise, that I might be peremptorily required to give the security demanded. But Cromwell said, that the air of Ireland was good, that I had a house there; and therefore he thought it best to send me thither. Immediately after, Mr. Scobel, one Judge. It cannot be you are committed by the Parliament, and you must shew cause first. Streater. I am ready: I desire to speak to it now, both I and my counsel. Taisden. I was a Counsel for the first part of the Return, but not for this. Judge. What say you? Freeman. I desire he may have a copy of the Return. of the clerks of the council, came to me, and acquainted me, that I might return to my lodging. Where I had not been a quarter of an hour, before Mr. Strickland, one of the council, came to me, and pressed me earnestly to com ply. But I told him, that having contended for the liberty of others, I was not willing to give away my own, and to be made a precedent to the prejudice of my countrymen, because it was the pleasure of those that had the sword to have it so. ( Why,' said he, was it not the sword by which you kept Wardour-castle, and by which you acted during the whole course of the late war?' I had,' said I, the authority of the parliament to justify me in so doing. He answered, But they governed by 'the sword.' To which I replied, That indeed they made use of the sword to remove the obstructions that were in the way of the civil government, and exercised that power to vindicate and establish the law of the land; and that I was heartily sorry to see one who had been so forward in the cause of the public, not to discern any difference between a sword in the hands of a parliament to restore the people to their ancient rights, and a sword in the hands of a tyrant to rob and despoil them thereof. Here our discourse was interrupted by a messenger, who came from the council with an order from them, to require me to give the sccurity of 5,000l. within three days after the date of the order, not to do any thing prejudicial to the present government; and, in case of failure, to be taken into custody. Upon the receipt of it, I told the messenger, that having no power to resist, I must submit to their pleasure. day or two after the expiration of the time limited by the order for giving the demanded security, which I had not done, Serjeant Dendy came to me, with an order from the council, signed by Henry Lawrence, President, requiring and authorising him to take me into custody. Having shewn me the order, he desired me to make choice of a chamber; but, after some discourse with my near relations, who were then present, he was contented to let me remain at my lodgings. So having promised to return in a day or two, and in the mean time to advise with lieutenant general Fleetwood, he went away. The next day Cromwell, diverting himself with hunting at Hampton-court, asked my brother Thomas Ludlow, who was in the company, if he were not angry with him for committing me? and my brother answering, That it was not fit for him to judge concerning his ac-tions; he thereupon assured him, that he wished me as well as any of his own children; that his YOL. V. A Judge. Do so, and let him be here again on Friday next: let it be so. Streater. I desire, my lord, I may not be put to the trouble to sue for a new Habeas Corpus. [And then Mr. Streater not being permitted to speak any more, he was taken away by the marshal of the court of the Upper Bench, and carried to the Prison of the Upper Bench in Southwark.] desiring me to give security for my own carriage to the government, was designed by him as well for my good as for his own security, and that he would have him to engage for me: to which he most readily consented. The morning following, my brother came to me; and having acquainted me with what had passed between Cromwell and himself, I gave him thanks for his kind offer; but withal told him, that I would by no means desire that of him which I was not willing to do myself. Besides, I told him, that should it be granted that the thing were fit for him to do, yet it might prove a snare to him, and lay an obligation upon him to gratify the usurper in another way. However, after this discourse of Cromwel to my brother, and the conference of my relations with Serjeant Dendy, I ventured to accompany my father and mother Oldsworth, with my wife, into Essex." The following appears in the second volume of Thurloe's State l'apers, p. 680.: 'Engagement of John Streater. I, John Streater, do promise, that I will make good my promise to general John Disbrowe, which was, that I will not act or speak any thing to the disturbance of the Commonwealth, and the present government thereof; and that I will, upon notice given me, appear before the council, or any person the Lord Protector or his council shall appoint, there to answer any thing of misdemeanor that shall 'be charged against me. JoHN STREATER. October 18, 1654.' In witness whereof, we hereunto set our Hume, speaking of the crisis which preceded Cromwell's violent ejection of the Parliament in April 1653, relates the following anecdote: "By mutual altercation and opposition the breach became still wider between the Army and the Commonwealth. Cromwell, finding matters ripe for his purpose, called a Council of Officers, in order to come to a determination with regard to the public settlement. As he had here many friends, so had he also some opponents. Harrison having assured the Council, that the general sought only to pave the way for the government of Jesus and his saints, major Streater briskly replied, That Jesus ought to come quickly; for if he delayed it till after Christmas, he would come too late; he would find his place occupied." 2 B Colonel Barksted then appeared upon lieut. col. Lilburne's Habeas Corpus, and gave this following Reason for his not bringing the body of licut. col. Lilburne. "According to my orders, my lord, and the Return of the Habeas Corpus, I brought the body of lieut. col. John Lilburne on Monday to the court; at which time I was ordered to attend the court again with him here as this day. But this morning I received an order from the Council of State to the contrary: and here it is, my lord." Clerk. 'Wednesday Nov. 23. 'Whereas the body of Mr. John Lilburne, by an Order of Parliament, was committed to the Tower for the peace of the nation; and whereas there was an Order to the bringing of him forth thence to the Upper Bench this day: It is ordered by the Council of State, that they do not bring him, but that he there abide the pleasure of the house.' Lilburne's Couns. My lord, on Monday it was agreed that they should bring him again on Wednesday; and I have no instruction from my client, for I have no access to him, nor he to me. Judge. Well, pray advise with your client. Lilburne's Couns. My lord, I desire to have an Alias Habeas Corpus. Barksted. I have only learned, my lord, to obey orders, and I shall obey them. Judge. You do well. The Council of State have a reason for what they do in this busi ness. Lilburne's Couns. My lord, when must we attend at court? Judge. On Saturday. Gisen under my hand this 21st of November, To the Keeper of the Gatehouse, Upon the reading thereof in court, this Rule following was ordered to be entered. Wednesday next after eight days of St. Martin, 1653. The Gate-house, Westminster.' 'The Defendant was this day brought into this Court, by virtue of a Writ of Habeas Corpus, to undergo, &c. under the custody of the keeper of the prison of the Gate-house. And it is ordered by the Court, that the Habeas Corpus and the Return thereof be of the said Writ and Return, and that the said filed, and that the said Streater have copies 'Streater be committed to the custody of the 'marshal of this Court, and that he have the body of the said Streater in Court upon Friday next, upon the motion of Mr. Free man.-By the Court.' 6 The second Appearance of captain Streater, on Friday the 23d of November 1653, by virtue of an IIabeas Corpus, and the Rule aforesaid of the Court of Upper Bench of the 21st present. Captain Streater being at the bar, the clerk read the Return, which was only the Keeper's Answer to the Habeas Corpus, which requir eth him to shew cause why the prisoner is detained in prison. He in the Return citeth the Warrant, Order, or Mittimus for commitment, and certifieth that is the cause contained in them, and none other. The Return of the Habeas Corpus for cap-captain Streater what he had to say to the The Return being read, the judge asked tain Streater being filed, the cause of Imprison- Return, and who was his counsel. ment shewn in the return was grounded, upon two Warrants: first from the Council of State. Mr. Twisden, are counsel with me. Judge. What say you? These are to will and require you to take the Taisden. I was a counsel for the first part, 'body of Streater, and him you shall safely but not for the second, for publishing scanda 'keep prisoner in your prison of the Gate-lous Pamphlets. If there be no more in it, he house; he being committed for publishing of may be bailed. seditious Pamphlets against the State of which you are not to fail. And for so doing this shall be your sufficient warrant. Given at the Council of State sitting at White-hall, the 12th day of September, 1653. S. MOYER. R. TICHBURN, Presid. The second Warrant was signed by the Speaker, by order of the parliament. By virtue of an Order of Parliament, bearing date this present 21st day of November, these are to will and require you to receive and take into your custody the body of John Streater, and him to keep and retain in safe custody, until he shall be delivered by order of Parliament. Whereof you are not to fail, as you will answer the contrary at your peril. Judge. No, there is no more in it. What say you, Mr. Freeman ? Freeman. My lord, as to the second part of the Return, it is in these words: These are to will and require you to take into your custody the body of John Streater, and him safely keep, till he shall be delivered by order of Parliament.' My lord, every Return ought to have these two things in it; the Cause and have it in Magna Charta, p. 54. My lord, all how long he shall be a prisoner: and so you acts of parliament against the laws of the land, are in themselves void. The law is above the parliament. Judge. Good Sir, do not stand to repeat these things before us. Freeman. My lord, I do know it; they may pass their acts according to law, but not against law. The lord Dyer bath it so in his Reports. Judge. When we are in examination" of a prisoner, will you come and overthrow the acts | why a Habeas Corpus is to remove the body, of parliament ? Freeman. My lord, I refer it to your lordship's judgment, whether this gentleman ought to be kept in prison without cause shewn. Judge. What say you, Mr. Norbery? Norbury. My lord, we must look to see if the Return be true: if it be not, we have an action of the case against them that made it false. And though we will not say that is false, yet here is no offence recited at all. And, my lord, all the acts are the acts of this present parliament; and we look on them to be, or ought to be, for the liberty of the people. Judge. What have you to say to the second part of the Return? As to the first part of the Return, Mr. Prideaux said he should say nothing unto it; therefore the Judges advise captain Streater to speak to the second part of the Return. [Now for that the Argument that captain Streater had prepared to shew the insufficiency of the first part of the Return, may be of great use, and fit for public view, it is thought fit to be inserted here; and after it, his Argument upon the second part of the Return, the which he delivered with an audible voice at the bar, with the Attorney-General's Plea thereto, and the Judge's Judgment thereupon.] Captain Streater's ARGUMENT to the first Part of the Return. notwithstanding of special commands, saita, That Imprisonment is accounted in law a civil death, where a man is deprived of society, of wife, house, country, friends; and liveth with wicked and wretched men.' The writ of Habeas Corpus, and the benefit thereof by law (which is the undeniable right of every Englishman) is called The High Point, the only Point.' Nay the Commous of parliament of the 4th of the late king, in the Conference with the Lords, say that they had redeemed the body of liberty, by clearing this point: that is to say, That in case one be committed by virtue of special command, he shall have the bencht of the writ of Habeas Corpus to bring his body, with the cause, before the Judges of either Bench; where if it be found a lawful cause, he shall be remanded; if no cause, delivered; if it be doubtful, then to be bailed. 6 My lord, I shall make it evidently appear, when I come to make my Exceptions, that there is no lawful cause shewn in the Return to the Habeas Corpus why I should be a prisoner. With your lordship's favour, I shall speak one word or two of the law of England; I shall make use of it anon. It may not improperly be said, it is written by the Finger of God: it is not unlike (in that where indeed the perfection of it lieth) unto the laws of the Eternal Lawgiver; which is, it is as well binding to the lawgiver, as to those that are to give obedience unto it. My lord, I being brought to this bar by virtue of a Habeas Corpus, which requireth (by Anno 42 Edw. 3. chap. 3. No man shall virtue of the law, which is the supreme autho- be proceeded against, but according to the old rity of England, and only authority of parlia-law of the land: There shall be nothing done ments, and all courts of judicature) the cause to the contrary, if it be, it shall be void.' ought to be shewn why I am detained a prisoner upon the Return. The first part mentioneth a cause, though not a lawful cause: the second part sheweth no cause. If this serve not my turn, I am sure there be enough that speak the language I would have them, that say, Be it so and so enacted, and not otherwise. My lord, the intent in law of an Habeas First, I observe here they command law. God himself bindeth himself by his laws: he is as well bound, as he bindeth those several beings he gives laws unto, let them be eternal, moral or natural. If he maketh a promise, he performeth it: he must not, he doth not but perform it. If he create a world, and willeth it to continue, he must support it in its beauty and strength, and by his providence support the several beings in it. My lord, with these agree the learned Arguments of sir Edward Coke, sir Edward Littleton, and Mr. Selden; together with the Resolves of the Commons in parliament (1628) thereupon. And the second part of Institutes, fol. 52. The warrant or mittimus ought to contain a lawful cause.' The writ of Habeas Corpus is the Water of Life, to revive from the death of imprisonment. Sir Edward Coke in his third general reason My lord, Law is supreme; none ought to command contrary to law. It is not, that he or they are superior that command, that there fore they should be obeyed; no, it ought to be diligently enquired by the inferiors, whether superiors command law, or not; if not, they are not to be obeyed. For that this is not a rule amongst men, is the reason so much of absoluteness and tyranny is so much on foot in the world. Camerarius mentioned a story of Henry 2, of France, his committing to prison an Italian lackey, and shewing no cause of his commitment. The Judges visiting the prisoner, com |