He complained, that notwithstanding courts of justice ought to be open and free to all people, and no man tried in holes and corners, yet at his entrance the gates were shut and guarded.
He said he had been summoned before a committee of parliament, on much the same pretence he was brought before this court, and there he refused to proceed, till by their special order their doors were thrown wide open; and said if he were not allowed the same privilege here, he should rather die than proceed further; and that they might have no jealousy of his escape, he had engaged to the Lieutenant of the Tower to be his true and faithful prisoner, to come and go back peaceably; and if he should be separated from him by force or accident, to return to him as soon as he had liberty; and he believed the Lieutenant did not scruple it.
Lord Keble. Mr. Lilburne, look behind you, and see whether the door stands open.
He said he was satisfied as to that; but in the next place he said, by the act made for abolishing the Star-Chamber in 1641, all statutes made against magna charta were declared to be void; and consequently that of the First of Edw. III. which erected these extraordinary commissions of Oyer and Terminer was repealed, as being against the subject's indubitable right declared in magna charta, viz.: that no Englishman should be subjected to any other trial but at the ordinary assizes, sessions or goal-deliveries.
He added, that this was the opinion of the House of Commons (when they were in their purity, and acted in defence of the liberties of the subject) as appeared by the arguments of Mr. Hyde, published in a book, called Speeches and Passages of Parliament, from p. 409 to 417, who was commissioned from the then House of Commons to complain of the special commission of Oyer and Terminer, exercised in the five northern counties, as unjust in the foundation, and inconsistent with the liberties granted by magna charta; though the frequent insurrections of those counties, in Henry Eighth's time (after the suppression of abbeys) was then an extraordinary reason for erecting that court; and therefore if they were then illegal in those aggravating circumstances and dangers, much more must it be so now, to try him
