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." 42

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 untowardiy 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.44

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

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

44 Ibid., p. 1406.

45 Gardiner's Puritan Commonwealth

and Protectorate, vol. i, p. 198.

46 4 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.

which was to be paid to Haslerig, and providing that Lilburne should be banished, and depart the kingdom within thirty days, and that in case of his return, he should be proceeded against as a felon, and suffer the pains of death accordingly. When summoned to the bar of the House to receive his sentence he refused to kneel and was accordingly ordered to withdraw. The House on January 30th, 1651, passed an act to carry out its judgment, which, after allowing Lilburne twenty days to leave the country, provided that in case after the expiration of that time he should be found there, "the said John Lilburne shall be, and is hereby adjudged a felon, and shall be executed as a felon without benefit of clergy." He accordingly went to Holland, but two years later returned to England to contest the validity of the law, when he was committed to Newgate and brought to trial. He filed several exceptions to the indictment upon the grounds that the description of the Parliament in the indictment was informal, that the act did not conform to the judgment upon him, and that the indictment did not set forth with sufficient specification that he was the John Lilburne described in the act. The most interesting exception was, however, that the act was void as contrary to the fundamental principles of law. This was as follows:

47

"Exception 2. The said Indictment is grounded upon the fore-recited act, intitled, An Act for the Execution of a Judgment given in Parliament against Lieut. col. John Lilburne'; and so relates only to some judgment supposed to be given in parliament against the said It. col. John Lilburne; and if no such judgment were given, the act were void, and the judgment also. Now it doth not appear that any judgment, for any crime whatsoever, was given in parliament against the said Lieut. col. John Lilburne.

"1. Before any judgment can be given in law against any Englishman, for any crime, there must be either an Indictment, presentment, or some information or accusation, against him, to that court that judgeth him, for some crime supposed to be committed by him. 2. The party accused must either appear before that court, or be out-lawed for not appearing. 3. If the party appears, he must either confess the crimes or misdemeanors whereof he is accused, or else plead to the indictment, presentment, or information, or accusation against him, and come to trial thereupon. And as some of these ought in law to precede a judgment against any Englishman, so also some of these afore-mentioned proceedings, in order to a lawful judgment, ought to be entered upon such record, wherein any such judgment is entered; and unless it doth appear upon the record, wherein any judgment is entered against any Englishman for any crime, that some

47 Howell's State Trials, vol. v, pp. 407-409.

such proceeding as abovesaid, hath been made before the judgment passed against him, the judgment is to be holden for erroneous and void, and ought so to be reputed. Now it doth not appear either by the said pretended act, as it is recited in the indictment, nor by any record of the supposed judgment produced, nor any otherwise, that there was any indictment, presentment, or information to the parliament of the Commonwealth of England against the said Lieut. col. John Lilburne; or even if there were, it doth not appear, that he ever appeared to the same, nor that he was ever outlawed for not appearing; neither doth any pleading by the said lieut. col. John Lilburne to any such indictment or information appear, nor any trial of him for the same. And therefore if any such pretended judgment be entered, as the said supposed act, and the Indictment of John Lilburne, prisoner at the bar, thereupon, doth relate unto, the same is erroneous and void in law; and by consequence the said indictment is void." 48

In his closing speech to the jury, he took the position that the act was void because unconstitutional; and upon that ground he was acquitted, as appears from the subsequent examination of the jurors before the Council of State, where several substantially admitted this, by saying that they voted for acquittal because they were judges of the law as well as the facts, although two or three claimed that their verdict was on the ground of insufficient proof that he was the Lilburne described in the statute.49

"Concerning the act whereupon he was indicted, this he said: It was a lye and a falsehood: an act that hath no reason in it, no law for it; it was done as Pharoah did; Resolved upon the question, that all the male children should be murdered. That if he died upon this Act, he died upon the same score that Abel did, being murdered by Cain. That the act was a void act, a printed thing, there being no one punctilio or clause in it, grounded on the law of England, and that it was an unjust, unrighteous, and treacherous act, and that he doubted not to shatter that act in pieces." 50

"As for all parliaments in general, he said parliaments were a delegated power, and ought to give a reason of all they do; and that it was not in their power (as he had proved in his plea at large, before the Lord Chief Justice Rolls and Mr. Justice Bacon, May 18, 1647;) nor had they the least jurisdiction, to sentence him, or any of the least free-born Englishman; unless it be their own members. That all crimes whatever were to be heard, determined, and judged at the Common-law, and no where else. Acts of Attainder were not lawful."

"For the Jury, he called them his honourable Jury, and said they were

48 Howell's State Trials, vol. v, pp. 438-439.

49 Ibid., pp. 446-450.

50 Ibid., p. 443.

the Keepers of the Liberties of England; and will make it appear that the Jury are the Judges of the Law, as well as of the Fact.

"Moreover he charged them to consider, Whether if I die on the Monday, the parliament on Tuesday may not pass such a sentence against every one of you twelve; and upon your wives and children, and all your relations; and then upon the rest of the city, and then upon the whole county of Middlesex, and then upon Hertfordshire, and so by degrees there be no people to inhabit England, but themselves? "51

This is the first case in the history of jurisprudence, where an act of a national legislature was disregarded as unconstitutional.

A large gathering of people was present at the trial resolved to rescue him by force if he were convicted. He seems to have been troubled no further, and it is said that Oliver Cromwell, who, though publicly his enemy, had reasons for not pushing him too far, subsequently paid him privately a pension equivalent to the pay of a lieutenantcolonel.5 52 He died in 1657, less than forty years of age, but so long as civil liberty is preserved the name of John Lilburne should not be forgotten.

51 Howell's State Trials, vol. v, pp. 443-444.

52 Oldmixon vol. ii, p. 419.