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School of Thought: 17th Century Natural Rights Theorists
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Agreements of the People the history of the second agreement 1 From John Lilburne, Legal Fundamental Liberties (1649) a - Arthur Sutherland Pigott Woodhouse, Puritanism and Liberty, being the Army Debates (1647-9) from the Clarke Manuscripts with Supplementary Documents [1938]

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Puritanism and Liberty, being the Army Debates (1647-9) from the Clarke Manuscripts with Supplementary Documents, selected and edited with an Introduction A.S.P. Woodhouse, foreword by A.D. Lindsay (University of Chicago Press, 1951).

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Agreements of the People the history of the second agreement1

From John Lilburne, Legal Fundamental Liberties (1649)a

And being come to London, myself and some other of my friends, by two messengers . . . , sent a message down2 to him [Cromwell] to Pontefract,b to be delivered to himself, and to debate it with him and bring his express answer back again speedily. The effect of which message was: that to our knowledge God had caused him to understand the principles of a just government under which the glory of God may shine forth by an equal distribution unto all men; that the obtaining of this was the sole intended end of the war; and that the war cannot be justified upon any other account than the defence of the people’s right unto that just government and their freedom under it.

His answer to which message, by Mr. Hunt, was principally directed to the Independents. Some of whom appointed a meeting at the Nag’s Head Tavern by Blackwell Hall . . . , and invited Mr. Wildman and myself, &c. thither. Whither we went accordingly, and . . . met with Colonel Tichborne,c Col. John White, Dr. Parker, Mr. Taylor, John Price, and divers others. Where we had a large debate of things, and where the just ends of the war were as exactly laid open by Mr. Wildman as ever I heard in my life. But towards the conclusion they plainly told us the chief things first to be done by the Army was first to cut off the King’s head, &c., and force and thoroughly purge, if not dissolve, the Parliament. All of which we were all against, and pressed to know the bottom of their centre and in what they would absolutely rest for a future settlement. And I plainly told them in these words or to this effect: It’s true, I look upon the King as an evil man in his actions, and divers of his party as bad, but the Army had cozened us the last year and fallen from all their promises and declarations, and therefore could not rationally any more be trusted by us, without good cautions and security. In which regard, although we should judge the King as arrant a tyrant as they supposed him, or could imagine him to be, and the Parliament as bad as they could make them; yet, there being no other balancing power in the kingdom against the Army but the King and Parliament, it was our interest to keep up one tyrant to balance another, till we certainly knew what that tyrant that pretended fairest would give us as our freedoms; that so we might have something to rest upon and not suffer the Army (so much as in us lay) to devolve all the government of the kingdom into their wills and swords (which were two things we, nor no rational man, could like), and leave no persons nor power to be a counter-balance against them. And if we should do this, our slavery for [the] future (I told them) might probably be greater than ever it was in the King’s time, and so our last error would be greater than our first. And therefore I pressed very hard for an Agreement amongst the people first, utterly disclaiming the thoughts of the other till this was done. And this (I told them) was not only my opinion, but I believe[d] it to be the unanimous opinion of all my friends with whom I most constantly conversed.

At which the gentlemen Independents were some of them most desperately choleric. But, my opinion being backed with the speeches of some others of my friends, we came calmly to choose out four and four of a side to debate and conclude of some heads towards the accomplishment of an Agreement of the People, and (as I remember) their four were Colonel Tichborne, Col. White, Dr. Parker, and Jo[hn] Price; and our four were Mr. William Walwyn, Lieut.-Col. Wetton, Mr. John Wildman, and myself. But John Price sent some of the company to tell us (after we were parted and some of us drinking a cup of wine below), he would not make one if Mr. Walwyn was one, for he had a prejudice against him. Unto which I replied, Mr. Walwyn had more honesty and integrity in his little finger than John Price had in all his body, and therefore no meeting for me, seeing John Price was so base, unless Mr. Walwyn was one though we had but two of a side! But the business being much debated and expostulated, Mr. Walwyn and John Price both (for peace’ sake) were at present laid aside; and according to appointment (as I remember) all the other six met the fifteenth of November 1648, being Wednesday, at the aforementioned Nag’s Head, and there after some debate unanimously agreed in these words, viz.: That in our conceptions the only way of settlement is:

1. That some persons be chosen by the Army to represent the whole body and that the well-affected in every county (if it may be) choose some persons to represent them, and those to meet at the headquarters.

2. That those persons ought not to exercise any legislative power, but only to draw up the foundations of a just government, and to propound them to the well-affected people in every county, to be agreed to. Which agreement ought to be above law, and therefore the bounds, limits, and extent of the people’s legislative deputies in parliament, contained in the Agreement, [ought] to be drawn up into a formal contract to be mutually signed by the well-affected people and their said deputies upon the days of their election respectively.

3. To prevent present confusion, the Parliament (if it be possible) may not be by force immediately dissolved, but that the day of its dissolution be inserted in that Agreement, by virtue whereof it shall be dissolved.

4. That this way of settlement (if it may be) should be mentioned in the Army’s first Remonstrance.

5. That the matter of the Petition of September 111 be the matter to be settled.

Which Agreement of ours (as I remember) was immediately sent away to the headquarters at St. Albans by Mr. Highlanda of Southwark, where (as it was afterwards told us) it was very well accepted and approved of by the great ones there. Whose high and mighty declaration2 (drawn by Ireton at Windsor when he pretended to lay down his commission) against the King, coming to our view, we made divers objections against many passages in it, but especially at divers lashes that tacitly at the beginning of it hinted at us, which, we told some of their friends, could not be put in with a spirit of peace towards us or intention of good to the nation in those good things we desired and propounded for it. But it was with many fair expressions salved up by them. Upon which we judged it requisite for some of us to go to Windsor to speak with Mr. Ireton, the steersman himself, and accordingly (as I remember) Lieut.-Col. Wetton, Mr. Petty, Mr. Wildman, and myself met there, and, having drawn up our thoughts in writing, we communicated them to Col. Tichborne, Col. White, Mr. Moyer, and divers others of the Independent Party. Who went with us to the Governor’s house; where we met with Mr. Peters, the grand journey- or hackney-man of the Army, and after we had acquainted him with our minds, we delivered him a copy of our paper containing distinctly the heads of what we desired, and entreated him to deliver them to Commissary Ireton, with whom we desired to discourse about them. Who sent us word, at such an hour he would come to our inn at the Garter, to speak with us about them. And accordingly he did, accompanied with a whole train of officers. And a large and sharp discourse we had, our principal difference lying ina his desire in the too strict restraining liberty of conscience and in keeping a power in the Parliament to punish where no visible law is transgressed, the unreasonableness of which was much spoken against by divers of the principal officers with him, but especially by Col. Harrison, who was then extreme fair and gilded. And so little satisfaction had we at that meeting from Ireton (the Army’s Alpha and Omega) that we despaired of any good from them and were in a manner resolved to come away in haste to London and acquaint our friends with our conceptions, and so improve our interests, forcibly, as much as we could, to oppose their intended designs. But Colonel Harrison coming to us again at ten o’clock according to our desire, we had a private and large discourse with him, and fully and effectually acquainted him with the most desperate mischievousness of their attempting to do these things without giving some good security to the nation for the future settlement of their liberties and freedoms, especially in frequent, free, and successive Representatives, according to their many promises, oaths, covenants and declarations—or else as soon as they had performed their intentions to destroy the King, which we fully understood they were absolutely resolved to do (yea, as they told us, though they did it by martial law), and also totally to root up the Parliament and invite so many members to come to them as would join with them to manage businesses till a new and equal Representative could by an agreement be settled, which, the chiefest of them protested before God, was the ultimate and chiefest of their designs and desires: I say, we pressed hard for security before they attempted these things in the least, lest when they were done we should be solely left to their wills and swords, by which, we told them, they might rule over us arbitrarily without declared laws as a conquered people and so deal with us as the poor slavish peasants in France are dealt with, who enjoy nothing that they can call their own. And besides we plainly told him: we would not trust their bare words in general only, for they had broke their promise once already both with us and the kingdom, and he that would break once would make no conscience of breaking twice if it served for his ends, and therefore they must come to some absolute particular compact with us, or else, some of us told him, we would post away to London and stir up our interest against them—yea, and spend our bloods to oppose them. To which he replied to this effect: it was true,a what we said, for he must ingenuously confess they had once broken with us and the kingdom, and therefore acknowledged it was dangerous trusting them upon generals again. But, saith he, we cannot stay so long from going to London with the Army as to perfect an Agreement, and without our speedy going we are all unavoidably destroyed. For (saith he) we fully understand that the treaty betwixt the King and Parliament is almost concluded upon, at the conclusion of which we shall be commanded by King and Parliament to disband. The which if we do, we are unavoidably destroyed for what we have done already, and if we do not disband they will by Act of Parliament proclaim us traitors and declare us to be the only hinderers of settling peace in the nation. And then (saith he) we shall never be able to fight with both the interest of King and Parliament, so that you will be destroyed as well as we. For we certainly understand that Major-General Browne, &c., are underhand preparing an army against us. And therefore I profess—I confess I know not well what to say to your reasons, they are so strong, but—our necessities are so great that we must speedily go or perish; and to go without giving you some content, is hazardable too.

Well, sir, said we, we have as much cause to distrust the Parliament-men as we have to distrust you; for we know what and how many large promises they have made to the kingdom and how little they have performed. And we also know what a temptation honour, power, and profit are even to those spirits that were pretty ingenuous and honest before. And when you have done your work and got, as you pretend, forty or fifty of the honestest members of the House to you, alas (said we), it will be a mock-power. Yet they may find such sweetness and delight in their pretended power that they may fly to your swords for their protection and bid us go shake our ears for our Agreement and go look [for] it where we can catch it. And therefore we will trust generals no more to your forty or fifty members of Parliament than to you. For it’s possible, if we leave the Agreement to their framing, they may frame us such a one as will do us no good, but rather make us slaves by our own consents if signed by us. And therefore we pressed him that we might agree upon a final and absolute judge of the matter and method of the Agreement, that so we might not spend months and years in dispute about it.

And therefore we would propound this unto him: that if their honest friends in the Parliament, as they called them, would choose four from amongst themselves, and the Army four from amongst themselves, and the Independents four from amongst themselves, we that were nicknamed Levellers would choose four from among ourselves; and these sixteen should draw up the Agreement finally without any more appeal to any other. And we for our parts, so far as all our interest in England extended, would be willing to acquiesce in, and submit to, the determinations of them, [the] sixteen, or the major part of them. And we would be willing the Presbyterian Party should be invited and desired to choose four more to be of equal authority with the other sixteen, provided they did it by the first day we should appoint to meet upon. Which proposition he approved of extraordinary well, and said, it was as just, as rational, and as equitable, as possibly could be, and said he doubted not but all interests would centre in it, and engaged to acquaint them with it. And so we parted very glad that we were likely to come to some fixed agreement for the future enjoyment of our dear-bought and hard-purchased freedoms.

And the next morning we went to the gentlemen Independents . . ., and we acquainted them with it, who liked it very well; and with whom we fixed a night for several distinct meetings in London, to choose our respective trustees for this work, and also appointed a day to meet at Windsor again about it. * * * So we went . . . to Commissary-General Ireton’s chamber to have his concurrence, which of all sides was taken for the concurrence of the whole Army—or at least for the powerful and governing part of it, he being in a manner both their eyes and ears. So . . . he . . . sent us out word by Colonel Harrison (as he averred to us) that he did absolutely and heartily agree to the foresaid proposition, which to avoid mistakes was again repeated. So we seemed joyful men of all sides, and appointed a day speedily to meet at Windsor about it, Master Holland again and again engaging for four Parliament-men, and Colonel Harrison, with Commissary Ireton, for four of the Army, as we Londoners had done for each of our tribe. And so to horse we went, and I overtook upon the road the whole gang of Independents, with whom I discoursed again, and acquainted them all fully with the absoluteness of our agreement. Which they acquainted their friends with in London; who chose Colonel Tichborne, Colonel John White, Master Daniel Taylor, and Master Price the scrivener. And for our party there was, by unanimous consent of the agents from our friends in and about London, at a verya large meeting, chosen Master William Walwyn, Master Maximilian Petty, Master John Wildman, and myself. And for the honest men of the Parliament, as they were called, they had several meetings at the Bell in Kings Street, and at Somerset House, where (as I was informed) they chose Colonel Henry Marten,a Colonel Alexander Rigby, Master Thomas Chaloner,b and Master Scot, with one or two more to supply the places of those of them that should be absent at any time about their occasions. So when we came to Windsor, the Army men had chosen Commissary-General Ireton, Sir William Constable, and (as I remember) Colonel Tomlinson, Colonel Baxter, Lieutenant-Colonel Kelsey, and Captain Parker, some two of the which last four should always make up the number. So we had a meeting in their Council Chamber at the Castle; where we were all of all sides present but only the Parliament-men, for whom only Colonel Marten appeared. And after a large discourse about the foundations of our Agreement we departed to our lodging. Where Colonel Marten and we four nicknamed Levellers locked ourselves up and went in good earnest to the consideration of our Agreement. But much was not done in it there because of their haste to London, to force and break up the Parliament—which journey at all was very much opposed by Mr. Walwyn and many reasons he gave against their march to London at all—the absolute dissolution of which their friends in the House would no ways admit of, although Ireton, Harrison, &c., commonly styled it then a parliament that had forfeited its trust, a mock-parliament, and [said] that if they did not totally dissolve it, but purge it, it would be but a mock-parliament and a mock-power however. For where have we, say they, either law, warrant or commission to purge it? Or can anything justify us in the doing it but the height of necessity to save the kingdom from a new war that they, with the conjunction with the King, will presently vote and declare for; and to procure a new and free Representative, and so successive and frequent free Representatives, which this present Parliament will never suffer, and without which the freedoms of the nation are lost and gone? And the doing of which can only justify before God and man our present and former extraordinary actings with and against legal authority, and so [escape rendering] all our fighting fruitless. And this was their open and common discourse, with more of the like nature, and [especially] to those that objected against their total dissolving or breaking the House and the illegality of their intended and declared trying of the King—which also was opposed by us till a new and unquestionable Representative was sitting. * * *

But to return to our acting to complete the Agreement. All parties chosen of all sides constantly met at Whitehall after the Army came to town, saving the Parliament-men failed—only Master Marten was most commonly there. And a long and tedious tug we had with Commissary-General Ireton only, yea sometimes whole nights together, principally about liberty of conscience and the Parliament’s punishing where no law provides. And very angry and lordly in his debates many times he was. But to some kind of an expedient in the first for peace’ sake we condescendeda to please him, and so came amongst the major part of the sixteen commissioners, according to our original agreement, to an absolute and final conclusion, and thinking all had been done as to any more debate upon it, and that it should without any more ado be promoted for subscriptions, first at the Council of War, and so in the regiments, and so all over the nation. But alas, poor fools! we were merely cheated and cozened (it being the principal unhappiness of some of us, as to the flesh, to have our eyes wide open to see things long before most honest men come to have their eyes open, and this is that which turns to our smart and reproach), and that which we commissioners feared at the first, viz., that no tie, promises, nor engagements were strong enough to [bind] the grand jugglers and leaders of the Army, was now made clearly manifest. For when it came to the Council1 there came the General, Cromwell, and the whole gang of creature-colonels and other officers, and spent many days in taking it all in pieces, and there Ireton himself showed himself an absolute king, if not an emperor, against whose will no man must dispute. And then shuttlecock Roe, their scout, Okey, and Major Barton (where Sir Hardress Waller sat president) begun in their open council to quarrel with us by giving some of us base and unworthy language; which procured them from me a sharp retortment of their own baseness and unworthiness into their teeth, and a challenge from myself into the field besides, seeing they were like to fight with us in the room in their own garrison. Which, when Sir Hardress in my ear reproved me for it, I justified it, and gave it him again for suffering us to be so affronted.2 And within a little time after, I took my leave of them for a pack of dissembling, juggling knaves amongst whom in consultation ever thereafter I should scorn to come (as I told some of them), for there was neither faith, truth, nor common honesty amongst them. And so away I went to those that chose and trusted me and gave publicly and effectually (at a set meeting appointed on purpose) to divers of them an exact account how they had dealt with us and cozened and deceived us, and so absolutely discharged myself for meddling or making any more with so perfidious a generation of men as the great ones of the Army were, but especially the cunningest of Machiavelians, Commissary Henry Ireton. And having an exact copy of what the greatest part of the foresaid sixteen had agreed upon, I only mended a clause in the first reserve about religion to the sense of us all but Ireton, and put an epistle to it of the 151 of December 1648, and printed it of my own accord,2 and the next day it came abroad. About which Mr. Price the scrivener and myself had a good sharp bout at Colonel Tichborne’s house within two or three days after. Where I avowed the publishing of it, and also putting my epistle to it of my own head and accord. And after that I came no more amongst them, but with other of my friends prepared a complaint against their dealing with us and a kind of protest against their proceedings; which with my own hand I presented to the General’s own hands at the Mews, the 28 of December 1648; . . . and which was immediately printed by Ja. and Jo. Moxon, for William Larner3 . . . . Within two or three days of the delivery of which I went towards my journey to Newcastle. . . .

And yet in . . . a Declaration . . . appointed by His Excellency and his Council of War to be . . . published, May 22, 1649, . . . and first printed at Oxford, and then reprinted at London, May 23, 1649, I find these very words, viz.:

‘The grounds and manner of the proceedings of these men that have so much pretended for the liberty of the people, have been as followeth.

‘There was a paper styled the Agreement of the People framed by certain select persons and debated at a general council of officers of the Army, to be tendered to the Parliament, and to be by them commended over to the people of the nation, it being hoped that such an expedient, if assented unto at least by the honest part of the people that had appeared for this common cause to which God hath so witnessed, it would have tended much to settlement and the composing of our differences—at least have fixed honest men to such grounds of certainty as might have kept them firm and entire in opposing the common enemy, and [in] stand[ing] united to public interest.

‘The General Council of the Army, and the other sorts of men going then under the name of Levellers (so baptized by yourselves at Putney), who by their last actings have made good the same which we then judged but an imputation, had, as now it appears, different ends and aims both in the matter and manner of their proceedings. That which was intended by those men was to have somewhat tendered as a test and coercion upon the people and all sorts of men and authorities in the land. That which these, to wit, the Council of the Army, aimed at was to make an humble representation of such things as were then likely to give satisfaction and unite, and might be remitted to men’s judgments to be owned or disowned as men were satisfied in their consciences, and as it should please God to let men see reason for their so doing; that so it might not be only called an Agreement, but through the freedom of it be one indeed, and receive its stamp of approbation from the Parliament, to whom it was humbly submitted.

‘Hereupon those other men took so much dissatisfaction that they forthwith printed and spread abroad their paper, which was different from that of the Army, using all possible means to make the same to pass—but with how little effect is very well known. And finding by the Army’s application to the Parliament that they were likely, according to their duty, to stand by and own them as the supreme authority of the nation, they have by all means essayed to vilipend that authority, presenting them to the people, in printed libels and otherwise, as worse tyrants than any who were before them.’

In which passage of the General’s and his Council I shall desire to observe these things . . .:

First, that they give a false and untrue narrative of the original occasion of that Agreement, to which by our importunate importunity they were necessitated, and drawn unto that little they did in it as a bear to the stake, as is truly by me before declared; and which, as the sequel shows, they undertook merely to quiet and please us (like children with rattles) till they had done their main work (viz., either in annihilating or purging the House, to make it fit for their purpose, and in destroying the King, unto both which they never had our consents in the least), that so they might have no opposition from us, but that we might be lulled asleep in a fool’s paradise with thoughts of their honest intentions till all was over, and then totally lay it aside, as they have done, as being then able to do what they pleased whether we would or no. For if they ever had intended an Agreement, why do they let their own lie dormant in the pretended Parliament ever since they presented it, seeing it is obvious to every knowing English eye that from the day they presented it, to this hour, they have had as much power over their own Parliament now sitting as any schoolmaster in England ever had over his boys? But to them it was presented (who scarce ought to meddle with it) on purpose that there, without any more stir about it, it might be lodged for ever. For, alas, an Agreement of the People is not proper to come from the Parliament, because it comes from thence rather with a command than anything else; for that it’s we, and not they, that really and in good earnest say it ought not to do, but to be voluntary. Besides, that which is done by one parliament, as a parliament, may be undone by the next parliament, but an Agreement of the People, begun and ended amongst the people, can never come justly within the Parliament’s cognizance to destroy; which the General (and the chief of his Council) knew well enough; and I dare safely say it upon my conscience, that an Agreement of the People upon foundations of just freedom gone through with, is a thing the General (and the chiefest of his Council) as much hates as they do honesty, justice and righteousness (which they long since abandoned), [and] against which in their own spirits they are absolutely resolved, I do verily believe, to spend their heart’s blood, and not to leave a man breathing in English air, if possibly they can, that thoroughly and resolutely prosecutes it; a new and just Parliament being more dreadful to them than the great Day of Judgment spoken so much of in the scripture. And although they have beheaded the King, yet I am confidently persuaded their enmity is such at the people’s liberties that they would sooner run the hazard of letting the Prince in, to reign in his father’s stead, than further really a just agreement, or endure the sight of a new Parliament rightly constituted. * * *

[As his next two points, Lilburne denies that his Foundations of Freedom post-dated the presentation of the Agreement to the Parliament and that this presentation was the ground of the Levellers’ dissatisfaction, and proceeds]:

Fourthly, they say we used all possible means to make ours pass, but with how little success, they say, is very well known. If they mean we used all possible means to make ours pass with them, it’s true; but the reason it had no better effect was because they had no mind to it; it was too honest for them. And I am sure, in the very epistle to it, it is declared that the principal reason of the printing of it is that the people might have an opportunity to consider the equity of it, and offer their reasons against anything therein contained. And this was all the means, after the printing of it, we used to make it pass. * * *

Fifthly, they say, we were troubled at their doing their duty in submitting to authority and owning the Parliament as the supreme authority of the nation; whenas, alas, it is as visible as the sun when it shines in its glory and splendour, that Korah, Dathan and Abiram of old were never such rebels against authority as the General and his Council are, nor the Anabaptists at Munster with John of Leyden and Knipperdollinga were never more contemners of authority; nor Jack Straw, nor Wat Tyler, nor all those famous men mentioned with a black pen in our histories and called rebels and traitors can never be put in any scale of equal balance, for all manner of rebellions and treasons against all sorts and kinds of magistracy, with the General and his Council. * * * For did any or all of them forementioned ever rebel against their advancers, promoters, and creators, as these have done two several times? Did ever any or all of them chop off (without all shadow of law) a king’s and nobles’ heads, ravish and force a parliament twice, nay raze the foundation of a parliament to the ground, and under the notion of performing a trust, break all oaths, covenants, protestations, and declarations, and make evidently void all the declared ends of the war? * * *

And as for their styling this their own junto, the supreme authority: I know the time not long since when that style to be given to the House of Commons single was accounted an abominable wickedness in the eye of the chiefest of them. Yea, I also know the time . . . that they were absolutely resolved and determined to pull up this their own Parliament by the roots, and not so much as to leave a shadow of it (frequently then calling it a mock-power, and a mock-parliament), yea, and had done it if we, and some in the House of our then friends, had not been the principal instruments to hinder them, we judging it then of two evils the least to choose rather to be governed by the shadow of a parliament till we could get a real and true one (which with the greatest protestations in the world they then promised and engaged with all their might speedily to effect) than simply, solely, and only by the wills of swordsmen, whom we had already found to be men of no very tender consciences. But to me it is no wonder that they own this for the supreme power, seeing they have totally in law, reason and justice broke the Parliament, and absolutely, by the hands of Tho[mas] Pride, set up indeed a mock-power and a mock-parliament, by purging out all those that they were any way jealous of, [and that] would not vote as they would have them, and suffering and permitting none to sit but, for the major part of them, a company of absolute schoolboys, that will, like good boys, say their lessons after them, their lords and masters, and vote as they would have them, and so be a screen . . . betwixt them and the people, with the name of parliament and the shadow and imperfect image of legal and just authority—to pick their pockets for them by assessments and taxations, and by their arbitrary and tyrannical courts and committees (the best of which is now become a perfect Star Chamber, High Commission and Council-board) make them their perfect slaves and vassals by their constant and continual breaking and abasing of their spirits. * * *

The Cavaliers . . . were most desperate mad at me in particular about the beheading of the late King, although I were as far as Newcastle when it was done, and refused to give my consent to be one of his judges (although I was solicited so to be before I went out of London); yea, although I avowedly declared myself at Windsor against the manner and time of their intended dealing with him, arguing there very stiffly that upon their own principles, which led them to look upon all legal authority in England as now broken, they could be no better than murderers in taking away the King’s life though never so guilty of the crimes they charged upon him. For as justice ought to be done, especially for blood, which they then principally charged upon him (so said I, and still say), it ought to be done justly. For in case another man murder me, and a day, a week, or a year after, my brother or friend, that is no legal magistrate, executes him therefor, yet this is murder in the eye of the law because it was done by a hand had no authority to do it. And therefore I pressed again and again, seeing themselves confessed all legal authority in England was broke, that they would stay his trial till a new and equal free Representative upon the Agreement of the well-affected people (that had not fought against their liberties, rights and freedoms) could be chosen and sit; and then either try him thereby or else by their judges sitting in the court called King’s Bench. But they at Windsor asked me how by law I could have him tried. I told them: the law of England expressly saith, ‘Whosoever murders or kills another shall die’; it doth not say, excepting the King . . .; and therefore where none is excepted, there all men are included in law. But the King is a man: ergo, he is included as well as I. Unto which it was objected, that it would hardly be proved that the King with his own hands killed a man. To which I answered: By the law of England, he that counsels or commissionates others to kill a man or men is as guilty of the fact as he or they that do it. And besides, the advantage of trying of the King by the rules of the law would be sufficient to declare that no man is born (or justly can be made) lawless, but that even magistrates, as well as people, are subject to the penal part of the law, as well as the directive part. And besides, to try him in an extraordinary way that hath no real footsteps nor paths in our law would be a thing of extraordinary ill precedent; for why not twenty upon pretended extraordinary cases as well as one? And why not a thousand as well as twenty? And extraordinary cases are easily made and pretended by those that are uppermost, though never so unjust in themselves. And besides, to try him in an extraordinary way when the law hath provided all the essentials of justice in an ordinary way . . . will nourish and increase in men that erroneous conceit, that magistrates, by the law of God, nature, and reason, are not—no, nor ought not to be—subject to the penal part of the laws of men, as well as the directive part of it; which is the bane, ruin, and destruction of all the commonwealths in the world. * * *

[1] For the first Agreement see Appendix, pp. 443-5.

[2] Early in November 1648.

[1] See above pp. 338-42.

[2] The Remonstrance of the Army (see Appendix, pp. 456-65).

[1] See Whitehall Debates, above pp. 125-69. For the Levellers’ protest at the time, see Appendix, pp. 472-4.

[2] Clarke MSS. contain no record of this incident.

[1] Epistle is dated the tenth (see below, p. 356). Another edition (McAlpin Collection, New York) is dated the fifteenth.

[2]Foundations of Freedom (see below, pp. 355-67).

[3]A Plea for Common Right and Freedom (see below, pp. 472-4).

[342. (a)]The Legall Fundamentall Liberties of the People of England Revived, Asserted, and Vindicated. Or, an epistle written the eighth day of june 1649, by Lieut. Colonel John Lilburn. * * * London, Printed in the grand yeer of hypocriticall and abominable dissimulation. 1649;

[(b)]Pomfret;

[(c)]Tichburn (later Tychburn, Titchburn).

[344. (a)]Hiland.

[345. (a)]at.

[346. (a)] +in.

[347. (a)]every.

[348. (a)]Martyn (later Martin);

[(b)]Challiner.

[349. (a)] + in.

[353. (a)]Neperdullion.