the Judges of any crime committed in that Court and no other inferiour Court as hath been proved at large Also this latter Statute of 6 H. 8. 6 Hen. 8. ca. 16. A stricter law then 5. R. 2. seemeth to conclude all Delinquents that have not Licence as is before mentioned although the occasion of their absence be great and urgent affaires even in Law and conscience satisfactory Now to deny unto the Parliament the dispensation of Justice against Offenders in this kinde as it is too apparent and withall to protect them from the censure of that high and great Court surely I say no more it is a violation of their Lawes and Rights unto them anciently belonging But that I may answer all Objections Object it is urged by the adverse party that their departure from the service of the Parliament was forced by tumults and disorders of people not without just feare and perill of their lives and therefore their absence not within either of the Statures before named but justifiable by the rules of all Law and Conscience Sol. To which I answer because it seemeth materiall that first it must be granted that those Members so departing were Summoned to returne to the Service of the Houses and their Answers especially of divers of the House of Peeres were to this purpose That by their duty of Allegiance they were bound to attend the Kings Person or that they were commanded to attend his Person and therefore they held themselves excusable which was in effect a plaine deniall divers of which Answers I have seene in print Now it must needs be inferred from hence and it plainely appeares to any man not devoid of reason That if there had been really any such danger or cause as is objected Nota. they would have inserted the same in their Answers and so reasonable and certaine an Argument of their innocency would not have been omitted as on the contrary so high and contumacious a defence would not have been returned such an affront and contempt of Justice that even a Court of Pye-powders would not have suffered Also see their Answers what they are their Allegiance is the ground of them as if their attendance on the Kings Person warranted them to doe injustice to violate the Lawes of these Statutes before named Is this their Allegiance to the King Is not the Subjects Allegiance confired to the Lawes Is not the very Etimology of the word derived from thence Legiantia Allegiance the Etymology quasi legis essentia therefore their answers not legall Their answer noâ— legall because they infringe the law viz. 5. R. 2 6. H. 8. Tumult what it is as also the Objection of being driven from the Parliament frivolous for then they would have made use of it in their answers Further to question the word Tumult afore mentioned doe numbers of people with Petitions no way disturbing the Peace make in Law a Tumult Certainely no likewise it appeares by undeniable proofe that some of them were sollicited away from Parliament by Letters therefore the former allegation is idle For the Kings absence from the Parliament in what condition it stands The Kings absence from the Parliament by the ancient law how farre justifiable I will offer you one of the ancient Lawes of that pious Prince Edward Sir named the Confessor whose Lawes the Kings of this Nation at their Coronation sweate to observe and keep the words are these rendred in English The King ought to be present at his Parliament unlesse he be hindred by sicknesse and then he ought to be in the same Towne where the Parliament is held and his sicknesse ought to be certified by twelve Members of the Parliament a Committee for that purpose of the Lords and Commons Here appeares no cause of his absence but sicknesse justifiable and of this he himselfe is not the Judge it must be certified as you have heard What not perill of his life may some say Is that no just cause of His absence You heare the Law I have nothing to say to questions It seemes in those dayes there were no such unworthy and dishonourable thoughts in the mindes of men as to doubt the security of Parliaments unto the Regall Person since in judgement of Law if Tumults or Disorders shall happen in the Common-wealth Parliaments are best able to suppâ—â—se them and to protect both King and pâ—ople from injury and wrong Now Parliaments are the bane of Princes as they are now to â—â—ed they are now Corasives when as you see formerly they were the onely curers of all Diseases in the Body Politique The King formerly not any where safe but here now the King in His owne judgement safe any where but here flying from them as from His enemy when as it is not possible he should finde any where that which he desireth but under God even with them peace and security Be not deceived Great Prince neither fly them that pursue you not in any Hostile manner The Parliament follow you with humble Declarations and Petitions for Peace you mistake their sweet Compellations put up your Sword into the Sheath and let Peace be in our dwellings and amongst us I have a little deviated I will returne unto my selfe and I finde the King still absent notwithstanding all that hath been spoken and justifying the same Indeed there is a Statute in the time of King Henry the 8 via 33. H. 8. cap. 21. 33. H. 8. ca. 21. by which in the Kings absence from Parliament His Assent by his Letters Patents under the Great Seale shall be sufficient Here it may be alledged Object that the Kings absence from Parliament is warranted by this Statute I answer Sol. This is nothing to make the ancient Law afore recited ineffectuall for his absence here upon this Law standeth as it did before this Act not touched or medled with by this Act and therefore sicknesse continues still a cause of absence of the Kings Person from his Parliament and no other and where he might legally justifie his absence before this Statute he may still doe the same and no otherwaies And although that the use now of late times hath been Vse of no force against a law Vi. infra that the first and last day of Parliament is sufficient yet that is but use which is of no force against a Law in being as I conceive Further His Assent by this Act is limited it is onely to Acts of Parliament and no other assent is warranted Note also that to dis-assent to any matter trans-acted in Parliament it giveth him no power at all Thus you see Ex libro de ordine Parlia Editi tempâ—re Edvardi filij Regis Ethelâ— redi the Kings absence from his Parliament how it stands by the ancient Law of which I have an extract as also by latter Law you have heard likewise the absence of the Members of the Houses debated But we will Argumenti
Law they are meere estranged from any knowledge in this nature of any proceedings of each other interlocutory untill judgement given and then it must legally be brought before them Jurisdiction of Courts so that this Case is clearely meant of their joynt power wherein by custome as saith Sir Edward Cooke the Lords only proceed to reverse or affirme any Judgement upon errour no whit diminishing the Power and Authority of the House of Commons by this for divers matters may by custome be severally trans-acted by Persons having the same power and authority Transaction by one done by all representative and yet they are in Law trans-acted by all the Members or Judges of that Court representative How the opinion of Sir E. Cooke formerly is to be understood viz. according to their joynt power of Judicatuâ—e But I doubt not but the transcript of any Judgement in the Kings Bench may be commanded and that legally too into the House of Commons and that they may proceed thereupon either to affirme or reverse the Judgement and that by the power of that high Court as a severall and distinct Court of Justice from the House of Peeres this Case before remembred to be good Law notwithstanding but this I leave to the learned The House of Commons may take a Recognizance at a distinct court of Justice Now concerning the Recognizance before touched there is nothing expressed or implyed in this Case but that the House of Commons as a severall and distinct Court of Justice of it selfe may take a Recognizance there is no question of that for every Court of Record have that power unquestionably yea derivative Authority from Courts of Justice as Commissioners of Oier and Terminer are invested with this Authority Further The House of Commons may take a Recognizance according to their joynt power the House of Commons considered in relation to their joynt power may take a Recognizance for so saith good authority that reverend Judge Brooke in abridging the said Case of 1 H. 7. before cited Videtur quod tout un are his very words besides if there hath no such practise been or used in the House of Commons that is no proofe it is no argument from a non esse to a non posse an hundred presidents Sub silentio make not a Law it was never yet upon contestation so determined but of this sufficient Thus I hope I have cleared this false aspersion it plainely appearing that they are a High and Supreme Court of Justice joyntly and severally without the Kings personall presence The Assembly at Oxford no Parliament There hath of late been an Anti-parliament for so I may terme it erected at Oxford whereby they had thought to have weakened the power of this Parliament by Voting their proceedings as traiterous and illegall but alas these are poore shifts and evasions seeing there is an Act unto which they themselves this very Session have assented by which it appeares this Parliament cannot be held proroged or adjournied elsewhere without the consent of both Houses of Parliament now assembled so that this Assembly at Oxford is no Parliament and consequently their proceedings a meere nullity in judgement of Law and withall subject to severe Censure in regard they have assumed to themselves the Supreme Authority of the Kingdome without any warrant of Law so to doe and that spurious generation of Bastards or illegitimate Children which seeke to sever and divide the Power and Authority of this High Court by affirming any legall presence of this Assembly elsewhere the wise Salomons of this Parliament will in their due time bring to condigne punishment Well then they being in Parliament and a high Court of Justice without the Kingâ— personall presence Inferiour Courts may command Posse comitatus what question can be made of their power even as a Court of Justice to constraine and compell all persons yea even by force of Armes to submit to their supreme Authority and in case of resistance if inferiour Courts may command Posse Comitatus to execute their Processes and Injunctions as it is manifest they may for in one common Case of Replevin from the Court of Common Pleas the Sheriffe of the County as Minister to the Court of Justice if the party that hath taken a Distresse carry the same to a Fort or Castle to the end it may not be replevied he may command the power of the County to attend him and abate that Fortlet or Castle in case of resistance delivering by Replevin the Cattell to the owner Surely then the Parliament in case their Power be contemned and disobeyed may command Posse Regni and not onely Posse comitatus to bring all persons rebellious unto the Justice of that High Court there to receive according to their merits And thâ—s is the case of this present Parliament as I take it who have legally Summoned the Members of both Houses now absent to attend the Service of the Houses and they have not appeared but absolutely refused to obey the Summons Processe and Power of that Court which for my part what offence it is and where Censurable I leave it to the world to judge upon whâ—t hath been formerly spoken there being no absolute case of necessity to plead for their absence as I could ever yet perceive and the Lawes and Statutes of this Realme being peremptory in the mulct and penalty thereof The Kings presence representative by 33. H. 8. supra Now peradventure it is necessary to know in what the Royall Assent Personally or Representative is required and that is plaine in enacting any Law or Statute to make it perpetuall to oblige the people I conceive the Royall Assent must precede yet the Royall Assent cannot in Justice be denied neither with a Le Roy s'duisera suspended unlesse satisfactory reasons be given for the same unto the Parliament for the publike good as also the confirmation of them is no act of transcendent grace but of right and Justice as hath been formerly spoken The power of the Parliament to make Ordinances paralleld with this power in inferiour Courts Nay further it must be granted that as incident to this great Court they may make Ordinances to binde the people Sedente Parliamento without any royall assent unto which Ordinances although not grounded upon the positive Lawes of this Kingdome the people ought to yeeld obedience as well as to the Ordinances Ordinances binds untill definitive Judgement though not transacted in plena cur Orders and interlocutory Judgements in other Courts of Justice unrill definitive or finall Judgement which is for the most part in Plena curia when the Court is full but that other power is used although but part of the Court be then sitting and bindeth all persons untill finall Judgement it is also plaine that in other Courts their Orders Ordinances Ordinances binding though not grounded upon the positive Lawes and interlocutory Judgements are
gracia admit their Allegation true that they were driven from the Service of the Parliament by Tumults and disorders which no man will the premisses considered suppose yet the objection is still frivolous who shall judge them innocent or transgressors of the Law shall not the Parliament yes verily as it is manifestly proved by the former discourse so that in the confutation of this we doe but like Sysiphi saxâ—m voluere labour in vaine with multiplicity of words to answer a meere false and nugatory suggestion Object There is yet further opposition and that is upon the Statute 6 H. 8. before named That the penalty of that Law is but loâ—se of their wages in case any of the Members of the said House of Commons shall depart from the Service of the House without leave of the House accordingly as that Act hath appointed and so with losse of their wages upon the point that Statute is satisfied Sol. 6 H. 8. More penall abrogateth no former Law To which I answer First that Statute extendeth not to the House of Peeres neither doth it take away the mulct or penalty of any former Law or Statute made in that behalfe but addeth a further punishment to the crime abrogateth no former Law so that Fine Imprisonment and Arbitrary Censure continue still in their force and to conclude this point they are by one Statute or the other or by both transgressors of the Law and liable to the judgement of that supreme Judicatory The proceedings of the Paâ—liament not subject to any debate extrajudiciall nor to any debaâ—e judiciall but of it selfe Another right of Parliament is the sole trans-action of all matters even unto Judgement or the Royall Assent the proceedings of this High Court being not subject to any extrajudiciall debate of censure of any other Court or Authority whatsoever but onely of it selfe and within it selfe having supreme Authority and Jurisdiction and whereas I spake before of their power of preparing and trans-acting all matters unto the Royall Assent The transacting matters unto the Royall Assent doth not intend the royall assent Arbitrary I doe not intend the royall assent Arbitrary for the royall assent cannot in Justice be denyed to any Bills preferred by the wisedome of Parliament for the publike good neither can any absolute Negative voice no Prerogative negative voyce of the King in this nature be any prerogative to him justly pertaining although by a Proclamation bearing date at Oxford printed not long since his Majesty claimeth an absolute negative voyce in Parliament as his undoubted right And likewise in one of his Declarations he justifieth it as his right for this reason Object That if he should onely have a negative voyce in Parliament in matters of Grace and Favour and not in matters of right and Justice then matters of grace and savour would soone be brought within the compasse of right and justice if the Parliament shâ—ll so declare them they would soone interest the Republike in them also and so exclude him from any negative voyce at all To answer this I need say no more but this Sol. Matters of right and Justiâ—e and of graâ—e and favour legally differenâ—ed That these are thoughts dishonourable of a Parliament to make the head and fountaine of Justice a receptory of such impure streames as these injury and injustice besides these matters are in Law plainely and perspicuously differenced in the one viz. matters of Right and Justice the whole Kingdome is concerned not so in the other as being private on particular in their nature as Bills of Naturalization Indenization Generall pardon how speciall grant of Franchises on priviledges to Corporations or private persons generall pardons or particular for though the word generall be here used yet it operates but especially it extends onely to particular persons without you will make all the Kingdome delinquents unto Justice it includes genera singulorum at the most Generall statutes not nationall or publike not singula generum And so in Law divers Statutes are called generall Statutes of which the Judges are bound by Law to take notice of without speciall pleading and yet the Publique or the whole Kingdome are not concerned in them For my part I shall need to say little herein because it hath been formerly handled by others Arbitrary Goverment grounded upon the negative voice also I take it to be a truth as cleare as the noone day that upon this Structure all Arbitrary Government is founded and maintained which position standeth not with a mixt and Politique Government as this of our Nation is but with a Monarchicall where the will and pleasure of the Prince is a Law as is known sufficiently to the learned In inferiour Courts no negative voiâ—e no voice at all But a little to examine this particular and let us looke into the proceedings of inferiour Courts Hath he there any negative voyce It appeareth he is so farre from having any negative voyce that he hath no Vote at all but the voyce of the Law pronounced by the mouthes of the dispensers thereof the reverend Judges is that which obligeth both King and peopâ—e neither can it be disanulled by any verball Command of the King or any other extrajudiciall way although under â—he Great Seale of England although the Judgement be against the King himselfe Nay further I conceive the Law exerciseth a coersive power over all persons without exception the King as well as the people surely then the King hath no voyce negative yea the compulsary proceedings were the same anciently though now dis-used that is to say Writs issued forth against the King as against the Subject I have seene good Authority in print that the forme of the Writ in the times of Henry the 1. or thereabouts as I remember was thus Precipe â—enrico Regi c. the power of the Law was here supreme but of late times it is now by way of Petition if the Suit be against the Kings Servants or incumbent as in a Quare impedit or the like if judgement be once given as it is usuall the Kings right is bound and you see withall it is by Writ in that Case now if Judgement be given Judgement against the King by the posiâ—ive lawes and with all compulsary surely even at this day the Judgement is not illusory for every Judgement in its nature is an Act compulsary Et judicium rediliâ—us in invitum as the Lawyers say for execution may be demanded upon this Judgement and cannot in Justice be denyed though against the King These things thus premised I doe reiterate my former question where is now the Kings negative voyce surely in inferiour Courts he hath no voyce at all come we then to the right Court of Parliament Hath he it there without doubt he hath it not It is an Opinion exployded by all good meâ— unsound and rotten at the root if we but open it The