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<DATE>2007-10-24</DATE>
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<NAME>Elspeth Healey</NAME>
<RESP>MURP</RESP>
</RESPSTMT>
<ITEM>Proofed text and corrected markup.</ITEM>
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<STC T="T">669.f.14[23]</STC>
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<VID>163011</VID>
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<DIV1 TYPE="letter">
<PB REF="1" MS="y">
<HEAD>The Copie of a Letter, Written to the General from Lieut. Col. <HI>Iohn Lilburn,</HI> M. <HI>Richard Overton,</HI> April 27. 1649.</HEAD>
<HEAD TYPE="sub">In behalf of M. Robert Lockwer, M. Geo. A&s;h, M. Jo&s;eph Hockley, M. Robert Osburn, M. Matthew Heyworth, M. Thomas Goodwin; all of them in Captain Savages Troup: who by the &s;aid Councel were adjudged to ca&s;t lots for their lives, and one of them to dy.</HEAD>
<ARGUMENT>
<P>In which it is by Law fully proved, that it is both <HI>Trea&s;on</HI> and <HI>Murder,</HI> for any General or Councel of War to execute any Souldier in time of Peace, by Martial Law.</P>
</ARGUMENT>
<OPENER>May it plea&s;e your Excellency,</OPENER>
<P>_WEE have not yet forgot your Solemn Engagement of <HI>June</HI> 5. 1647. whereby the Armies Continuance as an Army was in no wi&s;e by the Will of the State, but by their own mutual Agreement: And if their &s;tanding were removed from one Foundation to another (as is undeniable) then with the &s;ame they re|moved from one Authority to another; and the Ligaments and Bounds of the Fir&s;t were all Di&s;&s;olved, and gave place to the Second; and under, and from the head of their fir&s;t Station, <HI>viz.</HI> By the Will of the State, the Army derived their Government by Martial Law; which in Iudgment and Rea&s;on could be no longer binding then the Authority (which gave being thereto) was binding to the Army: For the denial of the Authority, is an Abrogation and Nulment of all Acts, Orders, or Ordinances by that Au|thority as to them: And upon this account, your Excellency with the Army, long proceeded upon the Con&s;titution of a new Councel and Government, contrary to all Martial Law and Di&s;cipline, by whom only the Army Engaged to be Or|dered in their pro&s;ecution of the ends, to wit, Their &s;everal Rights, both as Souldiers and Commoners, for which they a&s;|&s;ociated; Declaring, Agreeing, and Promi&s;ing each other, not to Disband, Divide, or &s;uffer them&s;elves to be Disbanded or Divided, without &s;atisfaction and &s;ecurity in relation to their Grievances and De&s;ires in behalf of them&s;elves and the Com|mon-wealth as &s;hould be agreed unto by their Councel of Agitators: And by vertue, and under Colour of this E&s;tabli&s;h|ment, all the Extraordinary Actions by your Excellency, your Officers, and the Army have pa&s;t: Your refu&s;al to Disband, di&s;purings the Orders of Parliament; Impeachment and Ejection of Eleven Members; your Fir&s;t and Second March up to London; your late violent Exclu&s;ion of the Major part of Members out of the Hou&s;e, and their impri&s;onment without Cau&s;e, &amp;c. which can no way be ju&s;tified from the Guilt of the highe&s;t Trea&s;on, but in the accompli&s;hment of a righteous end, <HI>viz.</HI> The enjoyment of the benefit of our Laws and Liberties which we hoped long ere this to have enjoyed from your hands; Yet when we con&s;ider and herewith compare many of your late carriages both towards the Souldiery and other Free People; and principally your Cruel Exerci&s;e of Martial Law, even to the Sentence and Execution of Death upon &s;uch of your Souldiers as &s;tand for the Rights of that Engagement, &amp;c. And not only &s;o, but again&s;t others not of the Ar|my; we cannot but look upon your defection and Apo&s;ta&s;ie in &s;uch dealings, as of mo&s;t dangerous Con&s;equence to all the Laws and Freedoms of the People.</P>
<P>And therefore, although there had never bin any &s;uch &s;olemn Engagement by the Army, as that of <HI>June</HI> 5. 1647. which with your Excellency in point of duty ought not to be of the meane&s;t obligation. We do prote&s;t again&s;t your Exerci&s;e of Martial Law, again&s;t any whom&s;oever, in times of Peace, where all Courts of Iu&s;tice are open, as the greate&s;t encroachment upon our Laws and Liberties that can be acted again&s;t us; And particularly, again&s;t the Tryal of the Souldiers of Captain <HI>Savages</HI> Troup ye&s;terday, by a Court Martial, upon the Articles of War, and &s;entencing of two of them to death; and for no other end (as we under&s;tand) but for &s;ome di&s;pute about their pay: And the rea&s;on of this our Prote&s;tation, is from the Petition of Right, made in the third yeer of the late King, which declareth, <HI>That no per&s;on ought to be judged by Law Martial, except in times of War; And that all Commi&s;&s;ions given to execute Martial Law in time of Peace, are contrary to the Laws and Statutes of the Land.</HI> And it was the Parliaments complaint, That Martial Law was then commanded to be executed upon Souldiers for Robbery, Mutiny, or Murder. Which Petition of Right, this pre&s;ent Parliament in their late Declarations of the 9. of Feb. and the 17. of March, 1648. commend as the mo&s;t excellente&s;t Law in England; and there promi&s;e to pre&s;erve inviolably, it, and all other the Fundamental Laws and Liberties, concerning the pre&s;ervation of the Lives, Pro|perties, and Liberties of the people, with all things incident thereunto. And the Exerci&s;e of Martial Law in Ireland, in time of Peace, was one of the chiefe&s;t Articles for which the Earl of Strafford lo&s;t his head; The &s;ame by this pre&s;ent Parliament being judged High Trea&s;on. And the Parliament it &s;elf, neither by Act nor Ordinance, can ju&s;tly or warrantably de&s;troy the Fundamental Liberties and Principles of the Common Law of England: It being a <HI>maxime</HI> in Law and Rea&s;on both, that all &s;uch Acts and Ordinances, are <HI>ip&s;o facto,</HI> null, and void in Law, and binds not at all, but ought to be re&s;i&s;ted, and &s;tood again&s;t to the death. And if the Supreme Authority may not pre&s;ume to do this, much le&s;s may You, or Your Officers pre&s;ume thereupon; For where Remedy may be had by an ordinary cour&s;e in Law, the Party grieved &s;hall never have his recour&s;e to extraordinaries. Whence it is evident, That it is the undoubted Right of every Engli&s;hman (Souldi|er or other) that he &s;hould be puni&s;hable onely in the ordinary Courts of Iu&s;tice, according to the Laws and Statutes of the Realm in the times of Peace, as now it is; and the extraordinary way by Courts Martial, in no wi&s;e to be u&s;ed.</P>
<P>Yea, the Parliaments Oracle, Sir <HI>Edward Cook,</HI> Declares in the third part of his <HI>In&s;titutes,</HI> Chap. of <HI>Murder, That for a General or other Officers of an Army, in time of Peace to put any man, although a Souldier, to death, by colour of Martial Law, it is ab&s;olute murder in that General, &amp;c.</HI> Therefore erecting of Martial Law now, when all Courts of Iu&s;tice are open, and &s;topping the free current of Law, which &s;ufficiently provides for the puni&s;hment of Souldiers as well as others, as appears by 18. <HI>H.</HI> 6. Chap. 19. and 2, &amp; 3. <HI>Ed.</HI> 6. Chap. 2. 4, &amp; 5. <HI>P.</HI> &amp; <HI>M.</HI> Chap. 3. &amp; 5. <HI>El.</HI> 5. &amp; 5. <HI>Jam.</HI> 25. is an ab&s;olute de&s;troying of our Fundamental Liberties, and the razing of the Foundation of the Common Law of England; the which out of Duty and Con&s;cience to the Rights and Freedoms of this Nation (which we value above our lives) and to leave You and your Councel without all excu&s;e, we were moved to repre&s;ent unto Your Excellency, Earne&s;tly pre&s;&s;ing, you well to con&s;ider what you do, before you proceed to the taking away the Lives of tho&s;e men by Martial Law; le&s;t the bloud of the Innocent (and &s;o palpable Subver&s;ion of the Laws and Liberties of England) bring the reward of ju&s;t vengeance after it upon you, as it did upon the Earl of Strafford: For innocent bloud God will not pardon; and what the people may do (in ca&s;e of &s;uch violent Subver&s;ion of their Rights) we &s;hall leave to Your Excellency to judge, and remain</P>
<CLOSER><DATELINE>From our Cau&s;ele&s;s, and unju&s;t, and Tyrannical Captivity in the Tower of 7 London, <DATE>April 27. 1649.</DATE></DATELINE>
<SIGNED>Your Excellencies humble Servants,
<LIST>
<ITEM>John Lilburn,</ITEM>
<ITEM>Richard Overton.</ITEM>
</LIST></SIGNED></CLOSER>
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