done to those fighting for the king and therefore gave them more privileges than were their right by law. This opinion of the Court is partly supported by Lilburne's own account of the use he made of the week's time allowed him to consult with counsel. "In which time," he said "being freed of my irons, and of my close imprisonment, and enjoying pen, ink, and paper at my pleasure, by special order from the other two gentlemen, I writ a letter to my wife, and in it inclosed another to your Speaker, and another to young Sir Henry Vane, then my familiar acquaintance; all which I sent in post-haste away to my wife by the hands of Captain Primrose's wife, which Captain Primrose was prisoner there; and his wife, who brought up the letter to my wife, is now in London. Which letter my wife delivered to the Speaker, &c. and by her importunate solicitation procured the declaration of Lex Talionis; the substance of which, in a letter from Mr. Speaker, my wife brought down to Oxford, and delivered to the Lord Heath's own hands upon the Sunday after the first day of our arraignment. And the third day before we were to appear again, my wife arrived at Oxford with the Speaker's letter, which she delivered to Judge Heath himself; which letter taking notice of our trial, threatened them with Lex Talionis, to do the like to their prisoners that they did to us, or any of us. And they having many of their great eminent men prisoners in the Tower and in Warwick Castle, and other places, did induce them to stop all further prosecution of Colonel Vivers, Captain Catesby, and myself. And if it had not been for this threatening letter, in all likelihood we had all three been condemned by a commission of Oyer and Terminer, and executed for my wife did hear Judge Heath say to some of his associates, at the reading of the letter, that as for all the threatening part of it, as to his

particular self, 'I value it not; but' said he, 'we must be tender of the lives of the lords and gentlemen that serve the king, and are in the custody of those at Westminster.' And that clause of Lex Talionis put a stop to our proceedings, and further trials at law."

Lilburne then desired that his solicitor might speak two or three words for him. But Mr. Sprat, his solicitor, beginning to speak, was stopped by the Court, Judge Jermin exclaiming "What impudent fellow is that, that dare be so bold as to speak in the Court without being called?" and proceeded to say that the Court would allow him counsel, "if matter of law, upon the proof of the fact, do arise but for any other counsel to be assigned you before that appear, is not by law warranted: we shall tread the rules of justice."

"Lord Keble. And this, Mr. Lilburne, I will promise you, that when there comes matter in law, let it be a lawyer, or yourself, he shall speak in your behalf; but before he cannot.

"Lilburne. Sir, the whole indictment, under favour, is matter of law; and the great question that will arise (admit the fact should be true, and admit it should be granted) is, Whether the words be treason in law, yea or no? And also it is matter of law in the indictment, whether the matter in the indictment be rightly alledged as to matter, time, and place. And it is matter of law in the indictment, where there are divers several pretended treasons committed in divers and several counties, put into one and the same indictment, whether that be legal, yea or no?

"Lord Keble. Upon proof of the matter of fact, you shall hear and know whether matter of law will arise; and till

1 State Trials, vol. iv. p. 1304.

the words be proved, we cannot say whether that be the

law that you suppose.

"Lilburne. Truly, sir, you promised me a fair trial, and that you would not take advantages of my ignorance in the law's formalities; but the Lord deliver me, and all true-hearted Englishmen, from such unjust and unrighteous proceedings as I find at your hands, who go about, I now clearly see, to destroy me by my ignorance, in holding me to a single and naked plea, which is purely as bad, if not worse, than all the prerogatives, in a more rigorous manner than they were used in his lifetime, to be thus pressed upon me at this day, after he hath lost his life for pretended tyranny and injustice; liberty and freedom in public declarations declared to the kingdom: I say, if there be justice and equity in this, I have lost my understanding; and the good Lord God of Heaven deliver me from all such justiciaries ! " 1

Then came some of the stereotyped eulogies by the Court on the excellence of the laws of England-that "the law of God is the law of England "-that "the laws of God, the laws of reason, and the laws of the land are all joined in the laws that you shall be tried by;"2-the truth of which may be judged of by the fact that this very law of which Lilburne justly complained and which the judges extolled was, after this country had been finally delivered from the tyranny of the Stuarts as well as that of those who destroyed the Stuarts but retained their instruments of tyranny, altered by a statute of William the Third, and that measure of justice was granted to persons indicted for high treason for which Lilburne had pleaded so well and so bravely in vain. When Lilburne found that he pleaded to

1 State Trials, vol. iv. pp. 1305, 1306.

3

2 State Trials, vol. iv. p. 1307.

3 7 W. 3, c. 3.

no purpose for counsel, for a little time to consult with them and to produce his witnesses, and for a copy of his indictment, he said: “Sir, I have no more to say. It is but a vain thing to spend any more words. Sir, I have cast up my account, and I know what it can cost me : I bless God I have learned to die, having always carried my life in my hand, ready to lay it down for above this twelve years together, having lived in the favour and bosoin of God; and I bless his name, I can as freely die as live."

In answer to Lilburne's further request for time to bring in his witnesses, some of whom he said lived eighty or a hundred miles off, and others were parliament men, and others officers of the army who would not come in without subpoenas, Keble replied, “For your witnesses, you should have brought them with you; we will give you leave to send for them; we will give you time to do this, and to consider with yourself what to say for yourself; you shall have till seven o'clock to-morrow morning." Accordingly the Court adjourned till the next morning, and the prisoner, after humbly thanking the Court for what favour he had already received, was remanded to the Tower.2

In order to render intelligible what follows it will be necessary to state here that general orders had been issued to the army Feb. 22, 1648 forbidding any private meetings of officers and soldiers, such as had been found useful to their commanders in 1647, to be held without previous permission from the Council of War. And a committee was appointed to consider of a way in which those might be punished who should endeavour to breed any discontent in the army, not being themselves members of the army.3 This last provision was expressly pointed against Lil

1 State Trials, vol. iv. pp. 1308, 1309.

2 State Trials, pp. 1312-1314. 3 Whitelock, Feb. 22.

burne, who was not then a member of the army, though he had been formerly, and had risen by his own merit as one of its best soldiers to the rank of lieutenant-colonel. And by the acts of the 14th of May 1649, and 17th July 1649, declaring what offences shall be adjudged treason, it was enacted "that if any person shall maliciously publish, by writing, printing, or openly declaring, that the present Government is tyrannical, usurped, or unlawful; or that the Commons in Parliament assembled are not the supreme authority of this nation;" and further, "if any person, not being an officer, soldier, or member of the army, shall plot, contrive, or endeavour to stir up any mutiny in the said army, or withdraw any soldiers or officers from their obedience to their superior officers, or from the present Government that every such offence shall be adjudged by the authority of this present Parliament to be High Treason."

On the second day of the trial, Friday the 26th of October, the prisoner was again brought to the bar, and his brother, Col. Robert Lilburne, his solicitor Mr. Sprat, and others of his friends standing beside him, the Court objected to this.

"Lord Keble. Mr. Lilburne, I will have nobody stand there, let all come out but one man.

"Lilburne. Here's none but my brother and my solicitor.

"Lord Keble.

Sir, your brother shall not stand by you there; I will only have one hold your papers and books, and the rest not to trouble you: wherefore the rest are to come out."

"1

The jury having been sworn, after Lilburne had challenged several who were set aside, Mr. Broughton 1 State Trials, vol. iv. p. 1315.