of the arduous and â—rgent affaires of the Realme and Church of England as the first clause of the writ Carolus c. quia c. pro quibusdam arduis 〈◊〉 negotiis Nos Statum defensionem Regni nostri Angliae â—â—â—lâ—siae Anglicanae concernent quiddam Parliamentum nostrum teneri â—â—â—â—â—avimus ibidem cum Praelatis MAGNATIBUS PROCERIBUS dicti Regni nostri COLLOQUIUM HABERIET TRACTARE Tibi praecipimus And the Commons are summoned to performe and consent to those things which shall there happen to be ordained by this Com. Coun. of the Kingdom c. And if they are thus summoned not to treat amongst themselves as an independent and intire Parliament but to confirme and consent to what the King Prelates Great men and Peers the Common Councell of the Realm shall ordaine about such affaires as they must of necessity admit the King Lords and Peers to be altogether as essentiall yea more principall eminent Members of Parliament though not elective as the Knights Burgesses who are but summoned to consent to performe what shall happen there by common advise to ordaine or at least to consult and advise with them as their inferiors not to over-rule them as their superiors and the only Supream power in the Kingdom and if they will totally exclude either King or Lords from Parliament who are distinct essentiall Members of it as well as the Commons and have always been so reputed untill now the Commons may sit alone as Cyphers but not as a Parliament to vote or act any thing that is binding to the people since though in extraordinary cases for the saving of the Kingdome they may securely use extraordinary meanes proceedings yet regularly they are no more a Parliament without the King Lords theÌ„ the King or Lords alone are a Parliament without the Commons or the trunke of a man a perfect man without a head or shoulders If * Dyer 61. 62. Cooke 5 Report f. 90. 91. 94. 120. 121. v. 1. Rep. 111. 173 19. R. 8. 9. Br. executors 3. 15 11. 7. 12. 3. be joyntly impowred or commissioned to doe any act by Commission Deed or Warrant any one or two of them can do nothing without the 3d. If many be in Commission of the Peace Sewers or the like and three of the Quorum joyntly act there joyntly if any one of the three be absent all the rest can do nothing In Parliament it selfe If either House appoint a Committee of 3. 5. or 7. to examine act or execute any thing if but one of this number be absent or put out the rest can doe nothing that is legall or valid even by course of Parliament neither can either House sit and vote as a House unlesse there be so many Members present as by the Law and custome of Parliament will make up an House as every mans experience can informe him If these Levellers then will absolutely cut off or exclude the King or Lords from the Parliament they absolutely null and dissolve it and the Act â—or câ—ntinuing this Parliament cannot make nor continue the Commons alone together as a Parliament no more then the Lords or King alone without the Commons the King or either House alone being no Parliament but both conjoyned and enlivened with the Kings personall or representative presence The cutting of the head alone or of the head and shoulders altogether destroyes and kills the body Politicke and Parliament as well as the body naturall If the King dies or resignes his Crowne or be deposed the Parliament thereby is actually dissolved as it was resolved in the Parliament of 1. H. 4. n. 1. 2. 3. and 4. F. 4. 44. And so if the Lords or Commons dissolve and leave their House without any adjournment the Parliament is thereby dissolved as the forecited presidents and the latter clause of the writ for the election of Knights and Burgesses manifests And a new kind of Parliament consisting onely of Commoners when the old one onely within the Act for continuing this Parliament made up both of King Lords and Commons is dissolved neither will or can be supported or warranted by the letter or intention of this Law Ninthly All the Petitions of the Commons in all Parliaments since the Conquest to the King or Peeres for their redresse of grivances recorded in many ancient Parliament Roules All Acts of Parliament extant usually runne in this forme * Cooke 4. Instit c. 1. The King with the assent of the Lords Spirituall and Temporall in Parliament hath ordained and be it enacted by the Kings most Excellent Majesty the Lords Spirituall and temporall in this present Parliament assembled The famous Petition of Right 3. Car. so much insisted on beginning thus Humbly shew unto our Soveraigne Lord the King the Lords spirituall and Temporall and Commons in Parliament assembled thus answered by the King Let right be done as is desired The Act of continuing this Parliament made by the King and Lords as well as by the Commons who never intended to exclude themselves out of this Parliament by that Act or that it should continue if either of them were quite dismembred from it with all Acts and Ordinances since Yea the Protestation Solemne League and Covenant taken by the Commons and Lords prescribed by them to all others throughout the three Kingdomes which couple the Lords and Commons alwaies together neither of them alone being able to make any binding Ordinance to the subjects unlesse they both concurre no more than one Member alone of either House can make a House and ranck the Lords alwaies before the Commons and the King before them both so firmely hold forth establish the Lords and Kings undoubted Right to sit and Vote in Parliament and decry this new mounted Monopoly of a sole Parliament of Commons without King or Lords that absolute Soveraigne Power these new Lights have spied out and set up for them in Vtopia that impudency it selfe would blush to vent such mad absurd irrationall Frenzies and Paradoxes as these crackbrain'd persons dare to publish and they may with as much truth reason argue that one man is three that the Leggs and trunke of a man are a perfect man without head necke armes and shoulders or that the Leggs and Body are and ought to be placed above the head neck and shoulders as that the House of Commons are or ought to be an entire Parliament the sole Legislative Power the onely Supreame Authority paramount both King Lords who must not have now so much as a Negative voyce to deny or contradict any of the Commons Votes or Ordinances though never so rash unjust dishonorable prejudiciall or dangerous to the whole Kingdome Tenthly These very Sectaries and Levellers themselves have acknowledged and asserted this Right of Power of the Lords all along this Parliament till of late c See innocency and truth justified p. 74. 75. Mr. Edwards Gangraena part
Committees and proceedings contrary to the rules of Law and Iustice to right all grieved Petitioners especially such who have waited at least seven yeares space at your doores for reparations relieve poore starved Ireland and raise up the almost lost honor power freedome and reputation of Parliaments by acting Honorably and heroically like your selves without any feare favour hatred or selfe-ends and confining your selves the Commons House to the ancient bounds and rules of Parliamentary Iurisdiction and proceedings and to excell all others as farre in Iustice Goodnesse and publike resolutions as you do in Greatnesse and Authority Which that you may effectually performe shall be the the prayer of Your Lordships in all humble Service W. PRYNNE A PLEA For the LORDS OR A short yet full and necessary Vindication of the Judiciary and Legislative Power of the House of Peeres and the Hereditary just Right of the Lords and Barons of this Realme to sit vote and judge in the high Court of Parliament THe treasonable and destructive designe of divers dangerous Anabaptists Levellers Agitators in the Army City Countrey and of Lilburne Overton their Champions and Ring-leaders in this Seditious Plot to dethrone the King unlord the Lords new-modell the House of Commons extirpate Monarchy suppresse the House of Peers and subvert Parliaments the onely obstacles to their pretended Polarchy and Anarchy are now so legible in their many late printed Petitions Libells Pamphlets and visible in their actings and publike proceedings that it rather requires our diligence and expedition to prevent then hesitancy to doubt or dispute them they positively protesting against and denying both King and Monarchy in their a A Remonstrance of many thousand aâ—zens to their own House of Commons p. 6. the just mans Justification p. 10. Regall Tyranny Discovered A Declaration from his Excellency and the Generall Counsell of the Army Ian. 11. 1647. p. 7. Speeches c. at a Conference newly published by Walker printed verbatim out of Dolman the Iesuit his Booke condemned Pamphlets and Remonstrances with the Power and Judicature of the House of Peers and their undoubted just Hereditary right to Vote act or sit in Parliament because they are not elected by the people as Knights and Burgesses are asserting b Lilburnes Iust Man in Bonds p. 1 2. A Pearl in a Dunghill The Free-mans Freedome Vindicated An Anatomy of the Lords Tyranny his Argument and Plea before the Committee against the Lords Authority his Petition to the Commons his Letters to Henry Martin Overtons Arrow of Defiance shot into the Prerogative Bowells of the House of Lords his Petition and Appeale A Defiance against Arbitrary Vsurpation The Agreement of the People and Petitions wherein it was presented to the House of Commons An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 192. to 204. That they are no naturall issues of our Lawes but the Exorbitances and Mushromes of Prerogative the Wenns of just Government the Sons of Conquest and usurpation not of choice and election intruded upon us by power not made by the people from whom ALL POWER PLACE and OFFICE that is just in this Kingdome OUGHT TO ARISE meere arbitrary Tyrants Vsurpers an illegitimate and illegall power and Judicatory who act and Vote in our affaires but as INTRUDERS who ought of right not to judge censure or imprison any Commoner of England even for libelling against them refusing to appeare before them reviling and contemning them and their Authòrity to their faces at their very Barre as Lilburne Overton bost and print they did or breaking any of their undoubted Priviledges And to accomplish this their designe the better they endeavour by their most impudent flattery to ingage the House of Commons against the House of Peers the better to pull them downe stiling and proclaming them in their c Overtons Petition and Appeal to the High and mighty States the Knights and Burgesses in Parliament assembled Englands legall Soveraigne Power The Râ—monstrance of many thousands to their own House of Commons A printed Petition now in agitation of many Freeborne people to the only Supreme Power of this Realme the Commons in Parliament assembled The Anatomy of the Lords Tyranny An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 154. to 204. Petitions and Pamphlets The ONLY Supreme legall Judicatory of the Land who ought BY RIGHT to judge the Lords and their proceedings from whom they appeale for right and reparations against the House of Peeres affirming That in the Commons House alone resides the formall and legall Supreme Power of England who ONELY are chosen by the people and THEREFORE IN THEM ONELY is the power of binding the whole Nation by making altering or abolishing Lawes without the Kings or Lords concurrent assents to whom they now absolutely deny any Negative voice making the Commons a compleat Independent Parliament of themselves and therefore present all their Petitions and addresses to them alone without any acknowledgement or notice of the House of Peers to whom they deny any right or title to sit or vote in Parliament unlesse they will first divest themselves of their Peerage and Barons right of Session and submit to stand for the next Knights and Burgesses place in the House of Commons that shall fall void where if they may have any voice or influence the meanest Cobler Tinker Weaver or Water-man shall be elected a Knight or Burgesse sooner then the best and greatest Peer and John of Leyden preferred before King or Prince Charles Sic Sceptra ligonibus aequanti which Petitions and Pamphlets of theirs have so puffed and bladdered up many Novices and raw Parliament-men in the Commons House unacquainted with the bounds proceedings and originall Constitution of Parliaments and the Lawes and Customes of England that they begin to act vote and dispose of the Army Navy c. without and against the Lords not expecting their concurrence contrary to all former proceedings of Parliament the Lords just Priviledges and their own Solemne League and Covenant to maintaine them which may prove destructive to both Houses the Parliament Kingdome and oppressive to their Representatives the people who generally dislike it if not timely redressed and breeds such a deadly feud between the Houses as may ruine them both and the Kingdome to boot The end of these Anabaptists Levellers and Lilburnians being only to * See M. Edwards Gangraena part 3. where this is fully demonstrated destroy the Parliament by setting both Houses at variance they inveighing as bitterly against the power proceedings Ordinances Votes Power Members undue Elections and unequall Constitutions of the House of Commons as the Lords and therefore have so earnestly pressed in their d Lilburnes Letter to a friend Innocency and Truth justified and his late Letters to Cromwell Martin Sir Thomas Fairfax and others Englands Birthright Englands lamentable Slavery Another word to the wise Comparata Comparandis Liberty against Slavery The
said Sommons be he Archbishop Bishop Abbot Prior DUKE LORD BARON Baronet Knight of the Shire Citizen of City Burgesse of Burgh or other singular person or Commonalty do absent himselfe or come not at the said Summons except he may reasonably or honestly excuse himself to our Soveraigne Lord THE KING HE SHALL BE AMERCED and OTHERWAYES PVNISHED ACCORDING AS OF OLD TIME HATH BEEN USED TO BE DONE within the said Realme in the SAID CASE Which relates unto and agrees expresly with that forecited out of Modus tenendi Parliamentum If then all the Judges and Peares in Parliament are bound to attend the Parliament not to depart without the Kings and Houses leave under paine of Amercement and other punishment as this Statute resolves and 3. Ed. 3. 19. Fit 2. Câ—ron 161. Stamford l 3. c. 1. f. 153. Cooke Instit p. 15. 16. 17. 43 18. E. 3. Mo. 1. 2 8. and 31. H. 6. n. 46. What fine were imposed on absent Lords manifest then questionlesse they ought of right to sit in Parliament else it were the height of Injustice thus to fine them In the tenth yeare of King â— * Grafâ—oâ—â— Cron. p. ◠〈◊〉 350. 2. this King absented himselfe from his Parliament then sitting at Westminster residing at Eltham about forty dayes and refusing to come to the Parliament and yet demanding from them foure fifteenes for maintenance of his Estate and outward Wars Whereupon the whole body of the Parliament made this answer THAT VNLESSE THE KING WERE PRESENT THEY WOULD MAKE THEREIN NO ALLOWANCE Soone after they sent the Duke of Gloucester and Bishop of Ely Commissioners to the King to Eltham who declared to him among other things in the Lords and Commons behalfe how that by AN OLD ORDINANCE THEY HAVE AN ACT if the King absent himselfe 40. dayes not being sicke but of his owne minde not heeding the charge of his people nor their great paines and will not resort to the Parliament they may then lawfully returne to their Houses And now sir said they you have beene absent a longer time and yet refuse to come amongst us which is greatly to our discontent To which the King answered Well we doe consider that our owne people and Commons goe about to rise against vs wherefore we thinke wee can doe no better then to aske ayd of our Cosen the French King and rather to submit us to him then unto our owne subjects The Lords answered Sir that Counsell is not best but a way rather to bring you into danger c. By whose good perswasions the King was appeased and Promised to come to the Parliament and condiscend to their Petitions and according to his appointment he came and so the Parliament proceeded which else had dissolved by the Lords departure thence in discontent and the Kings wilfull absence Andrew Horne in his Mirrour of Justices in the raigne of King Edward the first writes That our Saxon Kings divided the Realme into 38 Counties over which they set so many Counts or Earles and though the King ought to have no Peers in his land but PARLIAMENTS all Writs and Plaints of the Moneys of the King Queene and their Children and of those especially who otherwise could not have common right of their wrongs These Companions are now called Counts after the latine word Comites For to the Estates of the Realme King Alfred assembled the COVNTS or Earles and ordained by a Perpetuall Law that twice a yeare or oftner they should assemble at London in Parliament to consult of the Government of the people of God Fleta l. 2. c. 2. p. 66. writes thus in the same Kings raigne Habet enim Rex curiam suam in concilio suo in Parliamentis suis PRAESENTIBUS Praelatis COMITIBUS BARONIBUS PROCERIBUS alijs viris peritis vbi terminatae sunt dubitationes judiciorum moris injuriis eversis nova constituuntur remedia And l. 17. c. 17. he writes thus Rex in populo regendo superiores habet Vidilicet legem perfactus est Rex Curiam suam to wit of Parliament videlicet COMITES BARONES Comites enim a Comitia dicuntur qui cum viderint Regem sine froeno Froenum sibi apponere TENENTVR ne clament sabditi Domine Jesu Christe in Chamo froeno maxillas eorum constringe Sir Thomas Smith in his Common-wealth of England * Bracton l. 2. c. 〈◊〉 l. 3. c 9. 〈◊〉 the like in the same words in Henry the 3. his reigne l. 2. c. 1. John Vowel and Ralph Hollinshed vol. 1. c. 6. p. 173. Mr. Cambden in his Britania p. 177. John Minshew in his Dictionary vuell in his Interpreter Title Parliament Powell in his Attornyes Academy and others unanimously conclude That the Parliament consisteth of the KING the LORDS SPIRITVALL and TEMPORALL and the Commons which STATES represent the body of all England which make but one assembly or Court called the Parliament and is of all other the Highest and greatest Authority and hath the most high and absolute power of the Realme And that no Parliament is or can be holden without the King and Lords Mr. Crompton in his Jurisdiction of Courts affirmes particularly of the High Court of Parliament f. 1. c. This Court is the highest Court of England in which the King himself fits in person and comes there at the beginning and end of the Parliament and AT ANY OTHER TIME WHEN HE PLEASETH ORDERING THE PARLIAMENT To this Court come ALL THE LORDS OF PARLIAMENT as well spirituall aâ— temporall and are severally summoned by the Kings writ at a certaine day and place assigned The Chancellour of England and other great officers or Judges are there likewise present together with the Knights Citizens and Burgesses who all ought to be personally present or else to be amerced and otherwise punished if they come not being summoned unlesse good cause be shewed or in case they depart without the Houses or Kings speciall license after their appearance before the Sessions ended And he resolves that the King Lords and Commons doe all joyntly make up the Parliament and that no Law nor Act of Parliament can be made to binde the subject without all their concurrent assents Sir Edward Cooke not onely in his Epistle before his ninth Report and Institutes on Littleton p. 109. 110. But likewise in his 4. Institutes published by Order of this present Parliament c. 1. p. 1. 2 c writes thus of the high Honorable Court of Parliament This Court consisteth OF THE KINGS MAJESTIE sitting there as in his royall politick capacity and of the three Estates of the Realme viz. Of the Lords Spirituall Archbishops and Bishops being in number 24. who sit there in respect of their Counties or Barronies parcell of their Bishopricks which they hold also in their politick capacity and every one of these when the Parliament is to be holden ought exdebito Justitiae to have a writ of summons The LORDS TEMPORALL Dukes Marquesses Earles
Viscounts and Barons who sit there by reason of their dignities which they hold by discent or creation And likewise EVERY ONE OF THESE being of full age OUGHT TO HAVE a writ of summons EX DEBITO JUSTITIAE The third estate are the Commons of the Realme whereof there bee Knights of Shires or Counties Citizens of Cities Burgesses of Burro All which are respectively by the Shires or Counties Cities Buroughs by force of the Kings writ Ex debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realme and trusted for them and are in number at this time 493. Headed And it is observed that when there is best appeareance there is the best succession in Parliament At the Parliament holden in the 7. yeare of H. 5. holden before the Duke of Bedford Guardian of England of the Lords Spirituall Temporall there appeared but 30. in all at which Parliament there was but one Act of Parliament passed and that of no great weight In An. 50. H. 3. ALL THE LORDS APPEARED IN PERSON and not one by Proxy at which Parliament as appeareth by the Parliament Roll so many excellent things were sped and done that it was called Bonum Parliamentum And the King and these three estates are the great Corporation or the body of the Kingdome doe sit in two Houses of this Court of Parliament the King is Caput Principium Finis The Parliament cannot begin but by the Royall Presence of the King either in person or representation by a Guardian of England or Commissioners both of them appointed under the great Seale of England c. And 42. E. 3. Rot. Parl. num 7. It is declared by the Lords and Commons in full Parliament upon demand made of them on the behalfe of the King That they could not assent to any thing in Parliament that tended to the disinherison of the King and his Crowne whereunto they were sworne And p. 35. he hath this speciall observation That it is oâ—served by ancient Parliament men out of Record that Parliaments have not succeeded well in five cases First when the King hath beene in diffeâ—ence with his Lords and with his Commons Secondly When any of the great Lords were at variance betweene themselves Thirdly When there was no good correspondence between the Lords and Commons Fourthly When there was no vnity between the Commons themselves in all which our present Parliament is now most unhappy and so like to miscarry and succeede very ill Fiftly When there was no preparation for the Parliament before it began every of which hee manifests by particular instances From all these and sundry z Judge Hâ—â—rons Argument of Mr. Hampdens case p. 32. 33. Daltons office of Sherriffs other Authorities it is most evident transparent That both the King himselfe and Lords ought of right to be present in Parliament and ever have been so as well as the Commons and neither of them to be excluded since they all make up but one Parliament ought of right and duty to be present at and no Lords and Commons to depart from it without speciall leave under paine of amercement and other penalties because no binding Law can be passed without their joynt consents And that the Commons alone are no more a Parliament of themselves without the King and Lords than the Common Councell of London are an intire Corporation without the Lord Major Aldermen or the Covent without the Abbot the Chapter without the Deane or the leggs or belly a perfect man without the head or neck Sixtly The ancient and constant forme of endorsing Bills in Parliament begun in the Commons House in all Parliaments since the Houses first divided 33. H. 6. 17. Brooke Parliament 4 Cromptons jurisdiction of Courts f. 8. Mr. Hackuel of the manner of passing Bills in Parliament unanswerably demonstrates the Commons of Englands acknowledgment of the Lords right to fit vote assent or disassent to Bills in Parliament viz. SOIT'BAYLE A SEIGNEURS let it be delivered or sent up to the Lords Yea the Commons constant sending up of their own Members with Messages to the Lords and receiving Messages from them and intertaining frequent conferences with them in matters where their opinions differ in which conferences the Lords usually adhere to their dissents unlesse the Commons giveth emsatisfaction and convince them and the Lords oft times convince the Commons so farre as to consent to their alterations of Bills Ordinances Votes and oft to lay them quite afide is an unquestionable argument of their Right to sit and vote in Parliament and of their Negative Voyce too All which would prove but a meer absurdity and superfluity if the Commons in all ages and now too were not convinced that the Lords had as good right to sit and vote in Parliament and a Negative and dissenting voyce as well as they never once questioned or doubted till within this yeare or two by some seditious Disciples of Lilburnes and Overtons entering who endeavoured to evade their justice on them Seventhly This just Right of the Lords is expresly and notably confirmed by all the Commons of England in the Parliament of 31. H. 8. c. 10. concerning the placing and sitting of the Lords and Great Officers of State in the Parliament House made by the Commons consent It being in vaine to make such a Law continuing still till this very day both in force and use if they had no lawfull right to fit and vote in Parliament because they are not elective as Knights and Burgesses are And by the Statute of 39. H. 6. c. 1. made at the Commons own Petition to repeale the Parliament and all proceedings of it held at Coventry the yeare before by practice of some seditious persons of purpose to destroy some of the great Nobles faithfull and Lawfull Lords and Estates meerly out of malice and greedy and unsatiable coveteousnesse to possesse themselves of their lands possessions Offices and goods whereby many great Injuries Enormities and Inconveniences well nigh to the ruine decay and universall subvertion of the Kingdome ensued The very designe of our Lilburnists Sectaries and Levellers now out of particular malice and coveteousnesse to share the Lords and all rich Commoners lands and estates between them being poore and indigent covetuous people for the most part scarce forty of them worth one groat at least before these times This apparent Right of theirs is undeniably ratified and acknowledged not only by the very words of the writs by which the Lords themselves are summoned to the Parliament but even of the writs for election of Knights and Burgesses the forme and substance whereof are ancient and can receive NO ALTERATION NOR ADDITION but by Act of Parliament as b Institutes 4 p. 10. Sir Edward Cooke resolves By this writ the Prelates Nobles and others of the Realme are summoned to the Parliament there to treat and conferre with the King
hill unto the Gallows at Tiburn there kenelled his bowels laid before him and after he should be hanged beheaded and quartered and his head sent to Calayes where the murther was committed and his quarters sent to other places where the King should please and thereupon command was given to the Marshall of England to make execution accordingly and it was so done the same day Lo here the Lords in Parliament gâ—ve judgement against a Commoner in case of a murther done at Calayes and so not triable at the Kings Bench but in Parliament and passe a judgement of High treason on him for murthering of a great Peere only And which is most remarkable all the Commons In this very Parliaments of 1 H. 4. nu 70. Nov 3. made their Protestation and further remonstrated to the King Nota. Com LES JVGGEMENTS DV PARLEMENT APEIRTEIGNENT SOVLEMENT AV ROY ET AS SEIGNEIVRS ET NIENT AS COMMVNES how the judgement of the Parl. appertained ONLY TO THE KING and TO THE LORDS and NOT VNTO THE COMMONS except in case it should please the King OF HIS SPECIALL GRACE to shew unto them the said JVDGEMENTS purcase de eux que null record soit fait in Parlement encoutreles ditz Communes quill soit ou serront parties ascunes juggements donez ouadoues en Apres in Parlement Whereunto it was answered by the Archbish of Canterbury by the Kings command how the said Commoners are petitioners and demanders and that THE KING THE LORDS de tont temps ont eves et aueront DE DROIT LES JVGGEMENT EN PARLEMENT en manere come me me les communes ount monstres HAVE ALVVAYES HAD AND SHALL HAVE OF RIGHT THE JVDGEMENTS IN PARLIAMENT in manner as the Commons themselves have declared except in making Statutes or in making Grants and Subsidies or such things for the common profit of the Realm wherein the King will have especially their advice and assent and that this order of proceeding shall be held and kept IN ALL TIMES TO COME By which record in Parliament it is apparent by the House of Commons own confession First that the Judgements in Parliament even in cases of Commoners appertain ONLY TO THE KING and LORDS in the affirmative Secondly that they appertain NOT TO THE COMMONS in the negative Thirdly that the King and LORDS HAVE ALWAYES HAD and ENJOYED THE RIGHT of Judgements in Parliament Fourthly that they should alwayes hold and enjoy this Right IN ALL TIMES TO COME Fifthly that the Commons speciall advise and assent was and is required by the King in Parliament only in making of Statutes Grants and Subsidies and such like things for the common profit of the Realm So full and punctuall a Parliamentary decision of the present controversie as is uncapable of any answer or evasion In the Parliament Roll of 17. y See Cook 3. Instit c. 2. p. 22. R. 2. num 20. 21. John Duke of Gayen and of Lancaster Steward of England and Thomas Duke of Glocester Constable of England the Kings Uncles complained to the King that Thomas Talbot Knight a Commoner and no Peere with other his adherents conspired the death of the said Duke in divers parts of Cheshire as the same was confessed and well known and prayed that the Parliament might judge of the faulâ— to wit whether it were treason according to the clause of the Statute of 25 E. 3. c. 2. It is accorded that if any other case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without any going to judgement of the Treason till the cause be shewed and declared before the King and His Parliament whether it ought to be judged Treason or Felony whereupon the KING and THE LORDS IN THE PARLIAMENâ— without the Commons though in case of a Commoner ADJVDGED THE SAME FACT TO BE OPEN and HIGH TREASON and thereupon they award two writs the one to the Sheriffes of Darby to take the body of the said Sir Thomas retornable in the Kings Bench in the moneth of Easter then next following and open Proclamation was made in Westminster Hall upon the Sheriffes return and the next coming in of the said Sir Thomas that the same Thomas SHOVLD BE CONVICTED OF TREASON and incurre the losse and pain of the same and that all such as should receive him after the same Proclamation should incurre the same losse and paine Sir z 3. Instit p. 22. Edward Cooke relating this Judgement addes his own opinion at the end That this judgement wanting the assent of the Commons was no Declaration of Treason within the Act of 25. E. â— because it was not by the King and his Parliament according to this Act but by the King and Lords ONLY But the record of Parliament and the Judges and Commons then admitted it to be good and processe issued out and judgement was given accordingly the parties concerned taking no such exceptions to it See 21. R. 2. n. 15. 16. So that this Record is a pregnant evidence That the King and Lords are the sole Judges in Parliament in the case of Commoners even in declaring and judging what is or what is not treason within the Statute of 25. E. 3. because the Commons are no Iudges in Parliament and so cannot Iudge or declare unles in a legislative way by Act of Parliament what is Treason or Pelony but the King and Lords alone To put this out of question I shall cite one notable record more to this purpose a Cooke 3. Instit p. 22. c. 1. p. 10. In the Parliament of 5. H. 4. 11. 12. on the 8. of February the Earle of Northumberland came before the King Lords and Commons in Parliament and by his Petition to the King acknowledged that he had done against his Lawes and alegiance and especially for gather of power and giving of Liveries for which he put himselfe upon the Kings grace and prayed pardon the rather for that upon the Kings Letters he yielded himselfe and came to the King at Yorke whereas he might have kept himselfe away Which Petition by the Kings command was delivered to the Justices to be examined and to have their counsell and advice therein Whereupon the LORDS made a Protestation que le Juggement appertient aeux tout soulement THAT THE JUDGEMENT APPERTAINED ONLY TO THEM And after the said Petition being read and considered before the King and the said Lords as Peers of Parliament a queux tells â—uggementz apperteignent DE DROIT TO WHOM SUCH JUDGEMENT APPERTAINED OF RIGHT having had by the Kings command competent deliberation thereupon and having also heard and considered as well the Statute made in the 25. yeare of King Edward the Kings Grand-father that now is concerning the Declaration of treason as the Statutes of Liveries made in this Kings raigne ADJUDGED that that which was done by the said Earle contained within his Petition was neither Treason nor Felony but Trespas for which
Commons An attendent on Sir Tho. Brooke chosen one of the Knights to serve in Parliament for the County of Somerset being grievously beaten by one Iohn Savage was upon a petition of the Commons relieved against this breach of Priviledge by * Ordinance or Act of Parliament 8. H. 4. 23. 14. made by consent of the King and Lords which is printed in 5. H. 4. c. 6. And in like maner Richard Strode Burgesse of Plimton was relieved against breaches of his priviledges as a Parliament man by a speciall act of Parliament assented unto by the King and Lords upon the Commons petition An. 4. H. 8. c. 6. the Commons alone being then unable to relieve them or punish these breaches by their owne authority as of late they presume to doe without King or Lords Quo Jure having not the power of Judicature vested in them I am yet to learne being contrary to the practice and presidents of all ancient Parliaments before our present age and the Statute of 11. H. 6. c. 11. provided for this very purpose which presents another remedy out of Parliament and not in only the Commons house In the Parliament of 16. R. 2. n. 6. The Wednesday after the Parliament began Sir Philip Courtenay returned by the Sheriffe of Devon for one of the Knights for that County came before the King in full Parliament and sayd that he understood how certaine people had accused and slandered him to the King and Lords as well by Bill as by mouth of heinous matters and therefore prayed TO BE DISCHARGED OF THE SAID IMPLOYMENT untill the said accusations and complaints were tried and found true or not true and because his said prayer seemed honest TO THE KING and THE LORDS THE KING GRANTED HIM HIS REQUEST and DISCHARGED HIM IN FULL PARLIAMENT AND the Monday following at the instance and prayer of the COMMONS the KING GRANTED THAT HE SHOULD BE RESTORED and REMITTED TO HIS PLACE according to the returne of the said Sheriffe for to counsell and doe that which belonged unto his office and after because he had been good and treatable with those who had complained upon him and condescended to a good treaty he was restored in full Parliament to his good same The charge against him is expressed in the same Parliament rol num 13. 14. where two Petitions preferred against him to THE KING and LORDS IN PARLIAMENT for putting Thomas Peutyngdon forcibly out of possession of the Manor of Bygelogâ— without just cause Richard Somestre out of other lands detaining them from them he being so powerfull in the County that no poore man durst to sue him Which Petitions were referred by consent in Parliament to certaine Arbitrators to determine From which record it is evident First that Members of the Commons house may be complained and petitioned against for misdeameanours and put to answer before the King and Lords in Parliament and there fined and judged not before the Commons house and that this was the antient way of proceeding Secondly that the Commons cannot suspend or discharge any of their fellow-Commoners or Knights from sitting in Parliament but only the King and Lords in full Parliament in whom the power of Judicature rests much lesse then can they expell or eject any of their members by their owne authority without the Kings and Lords concurrence and consents Thirdly that the power of restoring and readmitting a suspended Member of the Commons house belongs not to the Commons themselves but to the King and Lords to whom the Commons themselves in this case addressed themselves by petitinn for Courtneys readmission unto his office after his submission of the complaints against him to the arbitriment of those Members to whom the King and Lords referred the same In the Parliament of 17. R. 2. n. 23. It was accorded by the King and Lords at the request of the Commons that Roger Swinerton who was endited of the death of one of their companions John de Ipstones Knight of the said Parliament for the County of Stafford slain in coming towards the said Parliament by the said Roger should not be delivered out of prison wherein he was detained for this cause by bail mainprise or any other manner untill he had made answer thereunto and should be delivered by the Law the Commons alone by their own power having no authority to make such an order even for the murther of one of their own Members without the King and Lords who made this order at their request In the Parliament of 35. Eliz. when Sir Edward Cook was Speaker of the Commons House there fell out some questions in the Commons House about the Amendment of a mistake in the return of the Burgesse of Southwark * 5. R. 2. c. 4 8. H. 4. c. 14. 11. H. 4. c. 16. H. 6 c. 4. 8. H. 6. c. 7. 32. H. 6. c. 15 Ploud tol 11. 8 c. and after long debate it was resolved that the House could not amend it but the Lord Keeper in Chancery where the return was of Record if he thought it amendable by Law and that Masten Speaker should wait upon the Lord Keeper about it which he did who advised with the Iudges concerning it as appeares by the Journall And the Statutes made for redresse of abuse of Elections of Knights and Burgesses were made by the King and Lords upon the Commons petitions as appeares by 8. H. 4. n 83 1 9. 11. H. 4. n. 54. Neither of all which statutes gives the House of Commons alone any power of Iudicature to judge the right of Elections or punish abuses committed in them but leaves them to the Lords judicature as at first and gives the party injured an action at Law against the Sheriffe and â—others for false returns Secondly Sir Edmund Cooks words extend only matters of misdemeanor of any Members of the House of Commons committed in or against the House it self of which theâ— now though not anciently are the sole judges without the Lords which he proves by Arthur Halls case Thirdly to breaches of Priviledges of the Commons House alone in striking or arresting any of the Members or their priviledged servants which he proves by Munctons case and 11. H. 6. c. 11. 5. H. 4. c. 6. the two latter proving the contrary Yet in this case of breach of priviledge even in arresting the Commons Members and servants the Commons house were noâ— anciently the sole Judges as now In the Parliament of H. 6. n. 25. 26. 27. 28. Thomas Thorp chief Baron was chosen Speaker of the Parliament and after his election and before the Parliament which was proroged he was arrested and taken in execution at the suit of the Duke of York whereupon some of the Commons were sent up by the House to the King and Lords spirituall and temporall sitting in Parliament desiring that they might enjoy all their ancient and accustomed Priviledges in being free from arrests and propounded the case of Thomas Thorp
thâ—â—r Speaker to them desiring his inlargement whereupon the said Lords spirituall and temporall not intending to hurt or impeach the priviledge of the Commons but equally after the Courts of law to administer Justice and to have knowledge what the Law will weigh in that behalf declared to the Justices the premises and asked of them whether the said Thomas ought to be delivered from prison by force and vertue of the said priviledge of Parliament or not To the which question the chief Justices in the name of all the Justices aforesaid communication and mature deliberation had among them answered and said that they ought not to answer to that question for it hath not been used aforetime that the Iustices should in any wise determine the priviledge of this high Court of Parliam for it is so high and mighty in his nature that it may make that law which is not and that that is law it may make no law and the determination and knowledge of that priviledge belongeth to the Lords of the Parliament and not to the Iustices but as for declaration of proceedings in the lower Courts in such cases as writs of Supersedeas of Priviledge of Parliament be brought and delivered the said chief Iustice said that there be many and divers Supersedeas of priviledges of Parliament brought into the Courts but there is no generall Supersedeas â—rought to surâ—eâ—se all Processes for if there should be it should seem that this High Court of Parliament that ministreth all Justice and equitity should let the processe of the common Lawes and so it should put the party plainant without remedy for so much as * Vpon this ground 1. R. 2. n. 20. 87. 114. 2. R. 2. n. 8. 49. 5. R. 2. n. 44. 13 R. 2. n. 10. 30. 33. 15. R. 2. n. 9. 17. R. 2. n. 10 We find the Commons and Parliament very zealous to maintain the Common Law and referring causes and petitions to it when proper for it and unproper for the Parliament actions at Common Law be not determined in this High Court of Parliament And if any Person that is a Member of this High Court of Parliament be arrested in such cases as be not for Treason or Felony or surety of the Peace or for condemnation before the Parliament it is used that all such persons should be released of all such arrests and make an Attorney so that they may have the freedome and Liberty freely to attend upon the Parliament After which answer and Declaration it was throughly agreed assentted and concluded by the Lords spirituall and temporall that the said Thomas according to the law should remain still in Prison for the causes abovesaid the priviledge of the Parliament or that the same Sir Thomas was Speaker of the Parliament notwithstanding And that the premises should be opened and declared to them that were comâ—â— for the Commons of this land and they should be charged and commanded in the Kings name that they with all goodly hast and speed proceed to the election of another Speaker The which premises for as much as they were matters of Law by the commandements of the Lords were opened and declared to the Commons by the mouth of Walter Mâ—yle one of the Kings Sergeants at Law in the presence of the Bishop of Ely accompanied with other Lords in notable number and there it was commanded and charged to the said Commons by the said Bishop of Ely in the Kings name that they should proceed to the election of another Speaker with all goodly hast and speed so that the matters for which the King called this his Parliament might be proceeded in and this Parliament took good and effectuall conclusion and end VVhereupon thâ— Commons accordingly elected Thomas Charlton Knight for their Speaker the next day and acquainted the Lords therewith and desired the Kings approbation of their choice which was accorded unto by the King In the Parliament of 39. H. 6. n. 9. Walter Clerke one of the Burgesses of Parliament for Chippenham was arrested and imprisoned in the Fleet for divers debts to the King and others upon a Capias Uâ—lagatâ—m whereupon the Commons complained thereof to the King and Lords and desired his release and tendred them an Act of Parliament ready drawn for that purpose to which Petition and Biâ—â— of theirs the King by the ASSENT OF THE LORDS SPIRITUALL and TEMPORALL assented And thereupon hee was freed In like maner Richard Chedder In the Parliament of 35. Eliz. Thomas Fitz-Herbert of Staffordshire was elected a Burgesse of Parliament and two houres after before the Indenture returned the Sheriffe tooke him in upon a Capiâ—â— Utlagatum Whereupon he petitioned the House that he might have a Writ of Priviledge and be enlarged After many dayes debate and Argument of this case in the House by sundry Lawyers and Sir Edward Cooke then Speaker it was agreed That no Writ of Priviledge could in this case be returned into the House of Commons being but a Member of Parliament and no Court of Record but only into the Chancery or House of Peers And that this being a point of Law it was meet the Iudges should be advised with and determine it not the House And at last he was outed of his Priviledge by the Houses resolution In 28. H. 8. Dyer 60. The case of Trewinnerd a Commoner in point of Priviledge of Parliament concerning an arrest was argued and debated before the Judges in the Kings Bench And so was Chedders case in 8. H. 4. 12. 13. So as the Commons only are not the sole Judges of such Priviledge as many now concerve but the House of Peers and Kings Councell and Judges as well as they In these three cases only and no other that I find Sir Edward Cooke admits the Commons to be sole Iudges now though not anciently without the Lords Therefore to extend it generally to all or any other cases of Commoners but these is to pervert his words and extend them farre beyond his meaning Now Lilburnes Overtons Cases are none of these but directly under the Lords sole Iudicature because infringements of their Priviledges of which the Lords only are the Iudges as the Commons pretend they are of their Priviledges as his following passages manifest Thirdly hee addes that both Houses together have power of Indicature but determines not in what cases nor in what way of Judicature which hath caused the Objectâ—rs mistake But the Judgements Records and Iournals of Parliament to which he refers and the cases he cites in the Margin will affoyle this doubt and cleare his meaning which is this First That in attainders and judgements of High Treason Felony or other Misdemeaners in Parliament where the proceedings are not by way of tryall and ordinary Judicature but by * See 31. H 6. n. 45. 64. 38. H. 6. n. 9. to 36. Bill or Act of Parliament there both Houses together and the King too joyntly with them have the power of
awarded him to the custody of the Marshall and to make fine and ransome at the Kings pleasure Whereupon the Commons REQUIRED by way of petition that he might lose all his Offices and no longer be of the Kings Councell which the King granted The Commons not joyning at all with the Lords in his judgement neither could they so joyne he being a Peer And for the Lord Nevill in that Parliament num 33. he was only accused not judged by the Commons Sixthly The case of 2. H. 5. rot Parl. num 15. that Error is there assigned that the Lords gave judgement without Petition or assent of the Commons is a grosse mistake For the record only recites That Thomas Mountague Earle of Salisbury Sonne and Heire of Iohn Mountague Earle of Salisbury exhibited his petition in Parliament to reverse a judgement given against his said father in the Parliament at Westminster in the second year of King Henry the fourth Whereupon he exhibited certaine reversals of Judgements given in Parliament as making on his behalfe to the Lords consideration reversed for some errors assigned in those jadgements to wit one judgement given against Thomas heretofore Earle of Lancaster before King Edward the second at Pomfract the monday before the feast of the Annuntiation in the fifteenth yeare of his reigne and another Judgement against Roger de Mortymer late Earle of March in the Parliament of King Edward the third the Monday after the Feast of St. Katherine in the fourth yeare of his reigne at Westminster Which judgements being distinctly and openly read and fully understood Jo seemed TO THE KING and LORDS that the case of the death and execution of the said John late Earle of Sarum and of the judgement aforesaid against him given is not nor was like to the case of the executing of the said Thomas heretofore Earle of Lancaster nor to the case of the killing of Roger Earle of March nor to any judgement given against the said Thomas and Roger as aforesaid but that the judgement and declaration had and given against the said Iohn late Earle of Sarum WERE A GOOD JUST and LEGALL DECLARATION and JUDGEMENT Per quod CONSIDERATUM FUIT in praesenti Parliamento PER PRAEDICTOS DOMINOS tunc ibidem existentes DE ASSINSU dicti Domini nostri Regis quod praefatus nunc COMES Sarum NIHIL CAPIAT PER PETITIONEM aut prosecutionem suam praedictam Et ulterius TAM DOMINI SPIRITUALES QUAM TEMPORALE supradicti JUDICIUMET DECLARATIONEM praedicta versus dictum Ioannem quondam Comitem Sarum ut praemâ—ttitur habita five reddita DE ASSENSU IPSIUS DOMINI REGIS AFFIRMARUNT FORE ET ESSE BONA JUSTA ET REGALIA et ea pro hujusmodi EX ABUNDANTI DISCREVERUNT ADJUDICARUNT TUNC IBIDEM This is all that is mentioned in this Parliament Roll concerning this businesse It appeares by the Parliament Roll of 2 H. 4. num 30. That Thomas Holland Earl of Kent Iohn Holland Earle of huntingdoâ— Iohn Mountagne Earle of Sarum Thomas Lord de Dispencer and Ralph omely Knight were impeached of high treason before the King and Lords in Parliament for levying actuall Warre against the King to destroy the King and his Subjects and for this taken and beheade and hereupon ALL â—â—E LORDS TEMPORALL BEING IN PARLIAMENT BY ASSENT OF THE KING DECLARED AND ADJVDGED all the said persons TRAITORS for leavying Warre against the King and that as Traytors they should forfeit all the lands they had in fee simple the 5 day of Jannary the first yeare of the raigne of the King or after according to the Law of the Land with all their goods and chattells notwithstanding they were slaine upon the said levying of Warre without processe of Law So this Record To reverse this judgement was this Petition of Thomas Earle oâ— Sarisbury in 2. H. 5. exhibited without the errour assigned as appeares by the Parâ—iament roll but if it were that the Lords only gave Judgement without Petition or assent of the Commons as Sir Edward Cooke imagins 〈◊〉 the King and Lords who upon solemned bate over-ruled the errour abuses and Petitions and found this judgâ—ment and Declaration of 2. H. 4. given by the Lords alone with the Kings assent without the Commons TO BE GOOD JVST and LEGALL as they did ex abundâ—nti is a most undeniable proofe of the King and Lords sole right of JVDGEING and DECLARING HIGH TREASON in Parliament without the Commons as well in case of Commoners as Lords Ralph Lomely being but a Commoner and Knight though the rest were Peers and yet all joyntly adjudged Traytors and declared such only by the King and Lords without the Commons and the Judgement assured to be good by the Commons who in the Parliament of 13. H. 4. num 19. Petitioned the Iohn Lomley might be restored by act of Parliament and made capable to inherit his fathers lands thus attainted to which the King by ASSENT OF THE LORDS SPIRITVALL and TEMPORALL consented Seventhly the Parliament Roll of 28. H. 6. num 18. c. containes onely an Impeachment of High Treason against the King and other great misdemeanors against the Kingdome and wrongs to particular persons comprised by way of Articles in two distinct Bills brought up by the Commons and presented by William Tresham their Speaker to the King in the Lords House the 7. day of February against William de la Pole Duke of Suffolke to which they desired the Duke might give in his Answer by a certaine day which he did absolutly denying the Treason against the King and denying and excusing himselfe of the rest without putting himselfe upon the Tryall of his Peeres The Chiefe Iustice thereupon the 14. day of March by the Kings command asked this Question of the LORDS WHAT ADVISE THEY WOULD GIVE THE KING what is to doe futrher in this matter which advise was deferred till Monday then next following whereon nothing was done in that matter On Tuesday the 17. of March the King sent for all the Lords Spirituall and Temporall then being in Towne being 42. in all into his Inner Chamber within his Palace of Westminster where when they were all assembled hee then sent for the Duke thither who comming into the Kings presence kneeled downe and continued kneeling till the Chancellour of England had delivered the Kings command to him and demanded of him what he said to the Commons Articles not having put himselfe upon his Peerage Whereupon the Duke denyed all the Articles touching the Kings Person and state of the Realme as false and scandalous And so not departing from his said Answers submitted himselfe wholly to the Kings Rule and Governance without putting himselfe upon his Peerage Where thus the Chancellour told him That as touching the great and horrible things contained in the first Bill the King holdeth him neither declared nor charged And as touching the second Bill containing misprisons which are not criminall the King by force of his submission by his owne advise and
Earle of Richmond adhered to the French against his Allegiance This Paradox therefore of his is against all Statutes Law-Books and Presidents whatsoever and Magna Charta it selfe There is onely one objection more of moment remaining Object 3. which is this If the House of Peers may without the Commons fine and imprison Commoners then if their fine and imprisonment be unjust and illegall they shall bee remedilesse there being no superiour Courr to appeale unto which will bee an intollerable slavery and grievance not to bee indured among free-borne people I answer Answ first that no injustice shall or ought to be presumed in the highest Court of Iustice till it bee apparantly manifested Secondly If any such censure be given the party as in Chancery upon just grounds shewed may Petition the House of Peers for a reveiw and new-hearing of the cause which they in justice neither will nor can deny and if they doe then the party grieved may petition the House ef Commons to interceed in his behalâ—e to the Peers for a rehearing but to discharge or free any Commoner judicially censured by the Lords I have hitherto met with no President in former Parliaments nor power in the House of Commons to doe it who cannot reverse Euroâ—ous judgements in any inferiour Courts by writ of Errour but the Lords alone much lesse then the judgements of the Higher House of Peers which is parâ—mount them Though I conceive the House of Peers being the Superiour Authority and onely Iudicatory in Parliament may relieve or release any Commoners unjustly imprisoned or censured by the Commons house or any of their Committees and ought in justice to doe it or else there will be the same mischiefe or a greater in admitting the House of Commons to bee judges of Commoners if there bee no appeale from them to the Lords in case their sentences bee illegall or unjust Thirdly This mischiefe is but rare Cook 4. instit p. 21 22. 4. â— 3. n. 14. Brook and Câ—nmptons jurisdiction and all Statutes for repealing former Parliaments Acts Iudgements or Attaindors and you may object the same against a sentence given or Law made in Parliament by the King and both Houses because there is no appeale from it or redresse of it but onely in the next Parliament that shall be summoned by petition And there is a greater greevance in ill publique Acts which concerne many then in â—â— judgements which concerne but one or two particular persons which yet cannot be repealed but by another Parliament as the Errours and decrees of one generall Counsell cannot bee rectified or reversed but by and till another Generall Counsell meets to doe it The same mischiefe was and is in Errous Iudgements and Decrees given in the Kings Bench Chancery and illegall commitments there for which there is no reliefe out of Parliament but towait till a Parliament be called Finally Hee that suffers by and under an unjust censure will have the comfort of a good Conscience to support him till he bee relieved and therefore he e Luk. â—1 19. 1 Pet 3. 14. He. â—0 32 33 34. must possesse his soule with Patience and rejoyce under his crosse and not raile murmur and play the Bedlam as Lilburne and his Companions Overton Larner and other Sectaries doe against our f â— Pet. 2. 15. to 21 c. 4. â—6 Iâ—â—â— 53. Saviours owne precept and example then God in his due season will g Psal 3â— 37. 46. relieve right them in a legall way whereas their impatience raving and libellous railing Pamphlets and Petitions not savouring of a Christian meek and humble spirit will but create them new troubles expose them unto just and heavy censures and rob them both of the comfort and glory of all their former suffrings against Law and Right Having answered these Objections I shall now earnestly desire all Lilburnes and Overtons seduced Disciples whether Members or others seriously to weigh and consider the premises that so they may see how grossely they have been deluded abused and misled by these two Ignes fatui or New-lights of the Law and Circumscribers of the Lords and Parliaments Iurisdictions which God knowes they no more know nor understand then Balams Asse as the premises demonstrate and I shall seriously adjure them if they have any grace shame or remainder of ingenuity left in them ingeniously to recant and publiquely to retract all their seditiouâ— rayling Libels and Scurrilous Invectives against the Lords undoubted Priviledges Iurisdiction and Iudicature which I have here unanswerably made good by undeniable Testimonies Histories Records and the grounds of policy and right reason which they are unable to gaine say to undeceive the many ignorant over-credulous poore soules they have corrupted and misled to the publique destrubance of our Kingdomes Peace Isay 9. 16. and let all their followers consider well of our Saviours caution Mat. 15. 14. If the blinde lead the blinde as these blinde-guides doe you both of them shall fall into the ditch and there perish together O consider therefore what I have here written to undeceive your judgements and reforme your practise consider that Dominion Principality Regality Magistracy and Nobility are founded in the very Law of Nature and Gods owne institution who subjected not onely all beasts and living creatures to the soveraigne Lordship of man to whom hee gave Dominion over them Gen. 1. 28 29. c. 9. 2 3 5. by vertue whereof men enjoy farre greater Priviledges then beasts but likewise one man unto another as i Gen. 3. 16. Exod. 20. 12. Ephes 5. 22. to 30. c. 6. 1. to 10. Rom. 13. 1 2 3. Tit. 3. 1. Col. 3. 20 22. 1 Pet. â— 13 14 18 c. 3. 15. Heb. 13. 17. Iosh 1. 16 17 18. Matth. 8 9. children to their Parents Wives to their Husbands Servants to their Masters Subjects to their Kings Princes Magistrates Souldiers to their Captaines Mariners to their Ship-Masters Schollers to their Tutors People to their Ministers which order if denied or disturbed will bring absolute and speedy confusion in all Families Corporations States Kingdomes Armies Garrisons Schooles Churches and dissolve all humane Societies which subsist by order and subordination onely to one another and seeing Monarchy Royalty Principality Nobility yea Titles of Honour and Nobility as Kings Princes Dukes Lords c. are as ancient almost as the world it selfe universally received approved among all Nations whatsoever under heaven See Mâ—stâ—r Seldens Titles of honour Dr. Huâ—â—â—â—es and others of Nobâ—lâ—ty Cataneâ—s Câ—ologus gloriae mundi and honoured with speciall Priviledges as not only all kâ— eminent Authours and experience manitest but these ensuing Scripture Texts Gen. 12. 15. c. 14. 1. to 10. c. 17. 6. 16. c. 20. 2. c. 21 22 23. c. 25. 16. c. 26. 1. 8. 26. c. 36. 15 16 17 18 29 30 31 to â—3 c. 9. 1 2. c. 41. 40 to 47. c. 47. 2â— 26. Exod. 1. 8. Numb 20. 14 c. c 21 1 1â— 21 33. c. 22. 7 10 14 15 40. c. 23. 17. c. 7. 2 3 10. c. 16. 2. c. 27. 2. c. 32. 2. Dent. 17. 14 15 16. Iosh 1. 16 17 18. c. 5. 1. c. 8. 9 10 11 12. Iudg. 9. 6 18. 1 Sam. 8. 5 6. 2 sam 11. 2. 1 Kin. 4. 34. c. 10 15 28 29. c. 20. 16. c. 23. 22. Iob. 3. 14. c. 36. 7. Psal 2. 2. 10. Ps 62. 12 14 29. Ps 72. 10. Ps 102. 15. Ps 136. 17 18. Ps 138. 4. Prov. 8. 15 16. Prov. 30. 31. Eccles 10 16 17. Iudg. 3. 5. c. 16. 8 1 Sam. 5. 11. c. 29. 2 6 7. Dan. 4. 36. c. 5. 9 10 23. c. 6. 27. Mat. 8. 9 Mar. 6. 21. c. 10. 42. 1 Cor. 8. 5. Rom. 61. 1 2 3 4. 1 Tim. 2. 1 2. Tit. 3. 1 2. 1 Pet. 2. 13 14 15. Acts 9. 27. which I wish our Sectaries Lovellers and Lilburnists to consider and study with the others forecited it will be a meer desperate folly and madnesse in any man to prove Antipodes to this instituiion of God Nature Nations to run quite contrary to all meu and to levell the head neck shoulders to the feet the tallect Cedars to the lowest Shruâ—s the roofe of every building to the foundation stones the Suâ—ne Moone Starres Heavens to the very Earth and center and even men themselves to the meanest beasts I shall therefore conclude with Saint Pauls serious admonition which these refractory persons have quite forgotten Rom. 13. 1 2 3. Let every soul be subject to the higher Power for there is no poâ—er but of God the powers that be are ordained of God whosoever therfore resisteth much more oppugneth abolisheth the Power resisteth oppugneth abolisheth THE ORDINANCE OF GOD and tâ—ey that resist oppugne or endeavour to abolish these powers shall receive to themselves DAMNATION for Rulers are not a terrour to good workes but to the evill and wherefore YE MVST NEEDS BE SVBIECT NOT ONLY FOR WRATH but also FOR CONSCIENCE SAKE And for this cause pay you tribute also for they are Gods Ministers attending continually on this very thing Render therefore to all such higher Powers their dues tribute to whom ribute custome to whom custome feare to whom feare HONOVR to whom HONOVR IS DUE which Saint Peter likewise seconds almost in the selfe-same words which you may doe well to peruse and study 1 Pet. 2. 12. to 20. and then you will never dare to question or dispute any more the Power Iudicatory Priviledges of the Right Honourable House of Peers much lesse to Revile and Libell against their persons as now you doe to the infinite Scandall of your Schismaticall faction and Religion it selfe which you professe onely in shew but deny in deed and practise FINIS
nor yet of a Minister as the Objectors falsly pretend who take it for granted as an infallible truth and Maxime of State for then it will follow that neither n Exod 3. 4. 7. Moses o Deut. 3. 28. Nuâ— 27. 16. 〈◊〉 23. Deut. 31. ◠〈◊〉 9. 14. 23. c. 34. 9. Ioshâ—â— Joshua p Neâ— c. 2. c. Nehemiah q 1 Sam 9. 16. c. 10. 1. 21. Saul r Psal 78. 70 71 72. 1 Sam. 1â— 2 Sam. 7 8. David Å¿ 1 Chron. 23. 1. c. 28. 5 6. 2 Chron. 1. 8. Solomon nor any of the t 2 Chron. 14 1. c. 17. 1. c. 28. 27. c. 29. 1. pious Kings of Juda who came to the Crown by Gods immediate designation or by descent succession were just lawful Governours or Kings which none dare aver That the v Num. 11. 16 17. 24 25 26 27. 70. Elders the Princes x 1 Chron. 18. 15 16 17. c. 26. 29 30 31 32 c. 27. c. 28. 1. 2 Chron. 19. 5. 〈◊〉 7. Nobles chief Captains Iudges and Rulers among the Jewes under Moses and their Kings and other Governours and the Jewish Sanhedrin were no lawfull Judges Magistrates Counsellers of State or Members of their generall Congregations Parliaments and assemblies since we read of none of them chosen by the people but onely designed by God himself or made and created such by Kings and Governours and by them called and summoned to their generall congregations assemblies and judicatures as the premised texts and others evidence That y Gen. 40. 40 41 c. Exod. 18. 25. Psal 105. 21. Acts 8. 10. Joseph z Esther 8. 10. Mordecai a Dan. 2. 48 49. Daniel Shadrac Mesec Abednego were no lawfull Rulers or Magistrates because made such even by Heathen Kings not by the peoples choice And that none of the Levites Priests High Priests or Prophets under the Law were lawfull because none of them that we read of made a Levite Priest High-Priest or Prophet by the peoples call but by b Exod. 40. Numb 1 3. 4 1 Chron. c. 23. c. â—5 29 26. 〈◊〉 2â— 13. Heb. 5. â— descent and succession in the selfesame Tribe or by Gods own immediate call and appointment as * Mat. 3. Iohn Baptist â‚ Isa 61. 1. c. 65. 1 Ioh. 20. 21. Heb. 5. 4 5. Christ the * Mar 10. Luke 9. 10. Mar. 28. 19 20. Iohn 20. 21. 1 Cor. 1. 17. Gal. 1. 1. Acts 8. 5. 14 15. â— Case Polit. l. 3. c. 2. Bodâ— de Repub. l. 2. c. 2 3. Ioan Mariana de Rege Regum Instit l. 1. c. 3 4. Apostles the 70. Disciples and others under the Gospell were made and created Ministers Apostles Evangelists and preaching Elders without the peoples call and yet our opposites dare not deny their Ministery and Apostleship to be lawfull being not of men but of Gods and Christs own call without the peoples Secondly then it will follow that all Hereditary Kingdomes which g Polititians and Divines generally hold the best of Governments all Patents and Commissions in all Empires Kingdomes and States of the world creating Princes Dukes Earls Lords and such like Titles of Honour whereby they are inabled in all Christian Kingdomes to sit in their Parliaments and Assemblies of State and for creating Privy Counsellors Judges Justices and other Magistrates are void null and illegall and so all the Lawes Orders Ordinances made Acts done and Judgements given by them d See M. Seldens Titles of Honor. are void and erroneous because they were not chosen and called to these places and publike Counsells and Judicatures by the people but by the Emperours Kings and Supreme Governours of State and what a confusion such a Paradox as this would breed in all our Kingdomes and in all States and Kingdomes in the world let wise men consider and those fools too who make this Objection 4. Fourthly if there be no lawfull Authority in any State but from the Peoples immediate election then it will necessarily follow that Sir Thomas Fairâ—ax is no lawfull Generall his Officers and Councell of Warre no lawfull Officers or Councell and Colonell and Lievtenant-Colonell Lilburne no lawfull Colonell or Lievtenant Colonell and ought not to use or retaine these titles as they do because none of them were called and chosen to those places by the People but made such by Commission from the Parliament 5. Fifthly This paradox of theirs touching the peoples choice and call to inable Peers to sit in Parliament or beare any office of Magistracy or Judicature is warranted by no law of God in old or new Testament both which contradict it by no Lawes or Statutes of these Kingdomes or Nations which absolutely disclaime it and enact the contrary by no prescription custome or usage which are all against it by no Originall Law of Nature which as all e Arist Polit. l. 1. Bodin de Repub. l. 1. c. 2. 3 4 5. D. Fâ—eld of the Church l. 1. c. 1 2. Polititians and Divines assert and the Scripture manifests gives every Father a Magisteriall and Judiciall rule and power over his children progeny Family and makes him a King Prince Lord over them without either their choice or call the Father and first-borne of the family being both the King Prince and Lord over it and Priest to it from the Creation till the Law was given as is generally acknowledged by all Divines 6. Sixthly I answer that a particular explicit actuall choice and election by the people of any to be Kings Magistrates Judges Ministers Peeres or Members of Parliament is neither necessary nor convenient to make them just and lawfull except onely when the Lawes of God of Nature of Nations or the Kingdome expresly require it but onely a generall implicit or tacit consent especially when the ancient Lawes of the Land continuing still in full force and the custome of the Kingdome time out of mind requires no such ceremony of the peoples particular election or call in which case the peoples dissent is of no validity till that Law custome be repealed by general consent of the King Lords and Commons in Parliament * Seldens Titles of Honour part 2. Cook 4. Instit c. â— Cambdens â—â—it Now the ancient Lawes Statutes Customs of the Kingdom enable all Lords who are Peers Barons of the Realm to sit in Parliament when ever summoned to it by the Kings Writ without any election of the people and if the Lawes and Customes of the Realme were that the King himselfe might call two Knights Citizens and Burgesses to Parliament such as himselfe should nominate in his writ out of every County City and Burrough without the Freeholders Citizens and Burgesses election of them by a common agreement and consent to such a Law and usage made by their Ancestors and submited and consented to for some ages without repeale this Law and Custome were sufficient
safety The rather for that the very Act made this Parliament for the preventing of inconveniences happening through the long intermission of Parliaments not onely enacts but requires all the Lords and Barons of this Realme to meet and sit in every Parliament under a penalty but likewise prescribes an Oath to the Lord Keeper and Commissioners of the Great Seale under severe penalties to send forth Writs of Summons to Parliament to them all and in his default enabled and enjoyned the Peeres of the Realme or any twelve or more of them to issue forth Writs of Summons to Parliament under the Great Seale of England for the electing of Knights Citizens and Burgesses which Act will be meerly void and nugatory if their Votes and Right of sit in Parliament be denyed or the House of Peeres reduced to the House of Commons which this very Statute doth distinguish The Kings and Lords sole right of Judicature in Parliament without Commons cleerly evidenced The Lords Jurisdiction and undoubted Right to sit and Vote in Parlâ—ament being cleerly evicted and undâ—â—â—ably manifested by the Premises I shall next proceed to make good their Jurisdiction and lawfull Right of Judicature never questioned nor disputed till of late without the Commons concurrence To avoid mistakes and clear all scruples you must take notice that there is a two-fold proceeding in Parliament by way of Judicature and Censure First by Bill of Attainder and therein the King Lords and Commons must all concurre because such Judgement is given extrajudicially only by the Legislative power wherein the Commons have of Right a Vote and consent as well as the King and Lords and in this course of proceedings the King and Lords alone can doe nothing judicially without the Commons no more then make an Act of Parliament without them Of this kindâ— of Judgement and Attainder by Bill wherein the King Lords and Commons joyntly concurre there are sundry presidents both in cases Trespas Felony Treason and the like in our printed Statutes 1 H. 4. c. 6. compared with 9 H. 4. Exilium Hugonis de Spencer 15 E. 2. 1 E. 3. prologue and c. 2. 11 R. 2. c. 1 2 3. 5 6 7. 21 R. 2. c. 10 11 12. 9 H. 6. c. 3. 19 H. 6. c. 1. 3â— H. 6. c. 1. 25 H. 8. c. 12. 28 H. â— c. â—8 33. H. â— c. 21. 32 H. 8. c. 25. 2 and 3 E. â— c. 17 18. 1 Mar. c. 1. 16. â—â— Eliz. c. 1. 3. 3 Jac. c. 2. to which the Attaindors of the Earl of Strafford by Bill and Arch-bishop of Canterbury this very Parliament may be added Besides other presidents in the q See Plac. Coronae in Parl. 33 E. 1. Rot. 17. 22 John de Segraves case Plac. Corenae in Parl. 21 R. 2. n. 1. to 27 31 H. 6. n. 45. 64. 38 H 6. n. 9. to 26. Parliament Rolls many of which are cited by Sir Edward Cooke in his 3 Institutes c. 1. â— and M. S. John in his Argument as Law concerning the Bill of Attainder of High Treason of Thomas Earl of Strafford printed by Order of the Commons House Anno 1641. The like Presidents are extant in the Statutes of Ireland 28 H. 8. c. 1. for the Attainder of the Earl of Kildare and others 11 Eliz. c. 1. For the Attainder of Shan◠〈◊〉 and others â—3 Eliz. c. 6 and 7. For the Attainders of John 〈◊〉 Gerald and others An. 27 Eliz c. 1. For the attainder of James Eustuce and others 28 Eliz. c. 8 9. For the Attainders of the E. of Resmond John Brown and others 11 Jac. c. 4. For the Attainder of the Earl of Tyroâ—â— and others Secondly there is a formall Judgement given in Parliament in Causes civill and criminall upon Writs Petitionsâ— Indictments informations or Impeachments and that either against or between Peers themselves or against or between Commons who are â—â— Peers in both which the Lords have a proper Judiciary power without the Commons That they have such a legall and sole Judicatory in the case of Peers is * Cookes Instit on Magna Charta c. 14. 29. 3 Instit c. 1 2. 1 H. 4. 1. Stamf. l. 3. c. 1. 10. E. 4. 6. Bro. Triall 142. Treason 33. 29. 13 H. 8. 11. acknowledged by all who neither may nor ought by Law to be cryed or judge for any Treason or criminall cause unlesse in cases of †10 E. 4. 6. Coronae 34. Cooke 2. Instit p. 49. Triall Bro. 142. Appeale at the suit of the subject but only by the lawfull judgement of their Peers by the expresse provision of r Ch. 14. 29. 20 H. 6. c. 9. 26 H. 8. c. 12. 1 El. c. 1. 5. 5 El. c. 11. and diverse other Statutes See Ashes Tables Coâ—onae 84. Challenge 65. and 8. Magna Charta with sundry other Statutes and by the very Common Law This right of theirs in case of Peers is cleerly evident by the Judgement given in against Earl Goodwin in a Parliament under K. Edward the Confessor before the Conquest An. 1052. recited at large in M. Seldens Titles of Honour Part 2. c. 5. p. 634 635. in the Tryall of Roger Earle of Hereford in the 8. yeare of William the Conqueror who was sued and found guilty of Treason by his Peers Cooke 2. Institut p. 50. by the Judgement given in the Parliament of Northampton against Becket Arch-bishop of Canterbury which you may read at large in Stephanides * M. Selden by the answer of Will. du Breose to K. Johns Ministers Paratus sum ero Domino meo sine obsedibus satisfacere secundum Judicium Curiae suae BARONVM Parium meorum Which right of theirs is asserted by Sir E. Cook himself and proved at large in his 2 Institutes on Magna Charta c. 14. 29. in his 3 Institutes c. 2. where p. 31. he writes thus A Peer of the Parl being indicted of Treason or Felony or of misprision and duly transmitted to the Lords may be arraigned thereof in the upper House of Parl. As FREQUENTLY IN PARL †Titles of Honouâ— Part 2. c. 5. p. 705. 706 707. ROLLS IT DOTH APPEAR As Rot. Parl. 21 R. 2 Plac. Cor. nu 2 to 7. the Earl of Arundels case Rot. Parl. 5 H. 4. nu 11 12. 13. H. 6. nu 49. Earl of Dovers case 28 H. 6. nu 19. 50 51 52. Duke of Suffolks case To which might be added 7 R. 2. nu 22 c. The Bishop of Norwich case for delivering Gravelin to the Enemy Placita Corona in Parl. 21 R. 2. num 1 to 26. Rot. Parl. 50 E. 3. nu 27. The Lord Latymers case 2 H. 6. Rot. Parl. nu 18. The Impeachments of the Commons this Parliament against the E. of Strafford and Arch-bishop of Canterbury who were prosecuted by the Commons not tryed only by and before the Lords as their proper Judges and Peers See 4 E. 3. nu 14. 15 E. 3. nu 6. 8. 44 45. 51. 17
which they never yet read nor understood there remaines nothing but to answer some Presidents and Objections The Principall president insisted on by Lilburne Object 1. is the Protestation of the Lords in the case of * Cooke 2. Instit p. 50. Sir Simon Beresford 4. E. 3. nu 6. which I have already fully answered retorted and shall therefore here pretermit The second is Sir Edward Cookes Authority Object 2. and the presidents cited by him in his 4. Institutes p. 23. 24. of Judicature in Parliament where thus he writes It is to be knowne THAT THE LORDS IN THEIR HOUSE HAVE POWER OF JUDICATURE And the Commons in their House have power of Judicature and both Houses together have power of Judicature But the handling thereof according to the weight and worth of the matter would require a whole Treatise of it selfe and to say the truth it is best understood by reading the Judgements and Records of Parliament at large and the Journalls of the House of the Lords and the Booke of the Clerke of the House of Commons which is a Record as it is affirmed by Act of Parliament in An. 6. H. 8. c. 16. To which he addes these marginall Notes Vide Placita in Parlians Anno 33. E. 1. rot 33. Nicholas Seagrave adjudgâ— Par Praelatos COMITES BARONES ET ALIOS DE CONCILIO At the Parliament at Yorke Ap. 12. E. 3. Consideratum est per Praelatos Comites BARONES ET COMMVNITATEM ANGLIAE the Lord Audleys care At the Parliament at Westm 15. E. 2 Hugh le pier adjuge per les SEIGNIEURS COMMONS Rot. Parl. 50. E. 3. n. 34. Lord Nevils case Then he aâ—des See Rot. Claus 1 R. 2. n. 5. 8. 38. â—0 A tresage Councell le Roy Les SEIGNIORS COMMONS c. Rot. Parl. 2. H. 5. nu 1â— Errâ—ra sinned THAT THE LORDS gave Judgement WITâ—OVT PETITION OR ASâ—â—NT OF THE COMMONS Rot. Parl. 28. H. 6. nu 10. and many others in the Reigne of King H. 6. and Kin E. 4. And of later times see divers notable Judgements at the prosecution of the Commons By THE LORDS at the Parliaments â—â—â—den 18. and 21. Iac. Regis against Sir Giles Mompesson Sir Iohn Michell Viscount St. Albon Lord Chancellor of England the Earle of Middlesex Lord Treasurer of England whereby the due proceedings of Iudicature in such Caces doth appeare Then hee cites the cases of * 8. Eliz. Thomas Long * 23 Eliz. Arthur Hall * 2. Aâ—â—â—l 1. Maâ—â—â— and Muncton censured by the House of Commons only and by them fined and imprisoned without the Lords Aâ—d concludes thus If any Lord of Parliament spirituall or temporall have committed any Oppression Bribery extortion or the like the HOUSE OF COMMONS BEING THE GENERALL INQUISITORS OF THE REALME comming out of all parts thereof may examine the same and if they find by the Vote of the House the charge to be true then they TRANSMIT THE SAME TO THE LORDS WITH THE WITNESSES and PROOFES From which passages of his some ignorantly have concluded That the Lords have no power of Judicature without but only joyntly with the Commons That all Commoners ought to be judged only by the Commons not by the Lords and That the Commons have a sole power of Judicature in cases of Commoners and the Lords no power but joyntly with them or upon their preceding Petitions and impeachments neither in case of Commoners nor Peers I answer that Sir Edward Cookes words are much mistaken and rightly understood warrant no such inferences but the contrary For first he clearely confesseth in direct termes That the Lords in their House have a power of judicature even without the Commons ha he deâ—med particularly in whose and in what cases out of the Judgements Records and Journals of Parliament at large to which he refers the Reader a being best understood by reading them which warrant the Lords judging fining imprisoning and condemning to death not only of Peers but of Commoners themselves without the Commons as I have fully manifested their could no such inference have been made Secondly â—e addeâ— That the Commons in their House have a power of Judicature From whence Lilburne and others inferre That they are and ought to be the sole Judges of all Commoners and not the Lords in all cases triable in Parliament But this is a most grosse mistake Sir Edward Cooke confining this Judicature of theirs only to these three câ—ses First to matters and abuse concerning elections of Knights Citizens and Burgesses being Members of the Commons House the judgment and determination whereof the Commons alone of late times only have usually taken upon them without the Lords which he proves by Thomas Longs case 8. Eliz. and no greater antiquities of which elections the King and Lords in former times have been sole Judges for which I shall cite some memorable records worthy the Lords and â—â—mmons consideration who now take upon them to suspend ejeâ—â— Judge their own Members elections without the Kings or Lords concurrence or privity a practice not heard of in former ages and of late originall In the Parliament holden at Westminster 5. H. 4. Rot. Parl. num 38. Thomas Thorpe his case Item because that the writ of summons of Parliament returned by the Sheriffe of Roteland was not sufficiently nor duely returned as the Commons conceived the said Commons prayed our Lord THE KING and THE LORDS IN PARLIAMENT that this matter might be duly examined in Parliament and that in case their shall be default found in this matter that such a punishment might be inflicted which might become exemplary to others to offend againe in the like manner Whereupon our said Lord the King IN FULL PARLIAMENT commanded THE LORDS IN PARLIAMENT TO EXAMINE THE SAID MATTER and to doe therein AS TO THEM SHOULD SEEME BEST IN THEIR DISCRETIONS And thereupon the SAID LORDS caused to come BEFORE THEM IN PARLIAMENT as well the said Sheriffe as William One by who was returned by the said Sheriffe for one of the Knights of the said County and Thomas Thorpe who was elected in full Countie to be one of the Knights of the said Shire for the said Parliament and not returned by the said Sheriffe And the said parties being duely examined and their reasons well considered in the said Parliament IT WAS AGREED BY THE SAID LORDS that because the said Sheriffe had not made a sufficient returne of the said writ THAT HE SHALL AMEND THE SAID RETURN and THAT HE SHALL RETURN THE SAID THOMAS FOR ONE OF THE SAID KNIGHTS as he was elected in the said Countie for the Parliament and moreover that the said Sheriffe for this default SHALL BE DISCHARGED OF HIS OFFICE and COMMITTED PRISONER TO THE FLEET and that he should MAKE FINE and RANSOME AT THE KINGS PLEASURE Loe here the Lords in Parliament at the Commons request and by the Kings command examining and giving judgement in case of undue election even without the
Spencers who seduced the King and oppressed the people and principall Pillars of our Laws Liberties as our m Walsingham Holingshed Daniel Speed Stow Grafton Fabian Baker Historians relate at large procured thâ—se ill Counsellours to be removed from the King even by force of Arms. In 10 11 22. of K. Rich. 2. the Lords were the principall opposers of the Kings ill Counsellours and Tyranny and protectors of the Laws and peoples Liberties to the losse of some of their lives hâ—ads and estates as our Statutes and Rolls of Parliament in those years and n Walsingham Trussle Fabian Holingshed Grafton Speed Stow. Historians witnesse whence Walsingham writing of the Duke of Gloucester's death murthered by the Kings command at Calice who was the principall Anti-royalist and head of all the Barons useth this expression Thus died this â—â—st of men the Son and Earl of a King in quo posita fuere spes solatium TOTIVS REGNI COMMVNITATIS in whom the hope and solace of the Common-wealth of the whole Kingdom were placed who resented his death so highly that in the Parl of 1 H. 4. Hall who had a hand in his murder was condemned and executed for a Traytor and his Head and Quarters hung up in severall places and K. Richard among other Articles deposed for causing him to be murthered Since then our Peâ—trs and Nobles have been alwaies persons of greatest valour power estate interest most able and forwards to preserve the Laws and peoples Liberties which they have upon all occasions defended with the hazard and losse of their Lives Liberties and Estates and upon this ground were thought meet by the wisdome of our Ancestors to enjoy this priviledge of sitting voting and judging in Parliament by vertue of their Peerage and Baronnies And since we must all acknowledge that the Lords were the chiefe instruments of calling this present Parliament and were therefore in the Act for Trienniall Parliaments principally intrusted to summon and hold all future Parliaments in the Kings and Lord Chancellours or Lord Keepers defaulâ—â— and were very active in suppressing the Star-chamber High-Commission Councel-Table Prelats and other grievances and those who first appeared in the Wars against the King and his party to the great encouragement of others witnesse the deceased Lord Generall Essex Brooke Bedford Stamford Willâ—ngh by Lincolne 〈◊〉 Manchester Roberts and others it would be the extremity of folly ingratitude and injustice to deny our Peeres this Priviledge and Honour now which their Ancestors have purchased at so deare a rate and a meanes to dis-ingage them for ever from the Commons and Republike for such an high dishonour and affront Thirdly our o See Master Sâ—ldâ—us Titles of Honour Part 2 chap. 5. and Coke 4. instit p. 1. Nobles are persons of greater Estates Families Fortunes then others and have more to keep and lose then other ordinary Commoners and therefore have greater interest in the Common-wealth and State-affaires then they And therefore our Ancestors thought it meet and just that they should have this priviledge among others above ordinary Commoners to be present in all our Parliaments by Writ onely and that of right ex debitâ— justitiae and not by election as Knights Citizens and Burgesses are being persons of meaner estate and quality and present in Parliament onely in the right of others who elect them not in their owne right as the Lords are whose estates anciently were far more worth then many whole Burroughes put together and their families retainers and followers far more in number And so their engagements to maintaine the Lawes Liberties and Properties of the Subject greater then inferiour mens Fourthly It is one principall property of Members of Parliament to be p Coke 4. Inst p. 3. constant stout inflexible and not to be bowed or turned from the right and publike good by feare favour promises rewards Now Peeres of noble birth and education and more generous heroick spirits then the vulgar sort of men are not so apt to be over-awed with regall threats terrified with menaces tempted with honours preferments and wealth which they already injoy in a higher proportion then others nor seduced with rewards and private ends from the common good and interest wherein their honour wealth and safety are imbarqued as ordinary Commoners and men of meaner ranke and fortunes as experience of former Ages and this present manifests Therefore it was thought just and reasonable by our Ancestors these Nobles in this regard should sit in Parliament in their owne rights * Modus tenendi Parliam Vowel Coke 4 Inst c. 1. without the peoples election and to leave the people to elect such other persons to represent and vote for them in Parliament in whom they most confided Fiftly our Peeres in Parliament * 12 R. 2. c. 1â— 23 H. 6. c. 11. 9 H. 6. c. 16. 31 H. 8. c. 11. 50 E. 3. n. 209. 1 R. 2. n. â— 37. though they serve for the common good of the whole Kingdome which have alwayes trusted in them in matters of counsel Judicature and making Laws yet they represent up persons but themselves onely and beare their owne expences Wherefore there is no shadow of reason why the people should elect them since they doe not represent them nor pay them wages as they doe to their Knights Citizâ—ns and Burgesses who serve for and represent them and therefore ought in reason right and justice to be elected by them And therefore they may as well argue That our Nobles ought to be elected by the people to their Lands and Estates which descend unto them from their Ancestors not from the common people as to sit in Parlâ—ament by the peoples election onely to represent themselves in their own right not the people in theirs And that the Knights of the Shire ought to be elected to their dignity of Knighthood which the King onely confers on them and to their Lands and Freeholds which they enjoy in their owne right because they are elected by the Free-holders to sit in Parliament in their right who elected them not their owne alone which Barons doe not By all which premisses it is most apparent That our Lords and Barons sitting and voting in Parliament who if you take them poll by poll have in all ages been more able Parliament men and States-men in all respects then the Commons though chosen by the people who alwayes make choice of the best and wisest men as experience manifests is not onely just and lawfull in respect of Right and Title but originally instituted upon such grounds of Reason and Policy as no rationall nor understanding man can dislike or contradict but must subscribe to as necessary and convenient and so still to be continued supported in this their Right and Honour to moderate the Excesses and Encroachments both of King and Commons one upon the other keep both of them within their just and ancient bounds for the Kingdomes peace
Iudicature and this is all which is proved by 15. E. 2. Hugh Spencers case who was judged and banished by an Act of Parliament intituled Exilium Hugonis le Spencer printed in old Magna Chartaes as Sir Edward Cooke himselfe reports in Calvins case 7. Report f. 11. b. and the Lord Audlyes case 12. E. 2. is the same the Commons having no right to judge them being Peers by the very * See Cooke 2. Instit f. 49. 50. 51. Statute of Magna Charta c. 29. but only the Peer except in a Legislative way by Act or Bill Secondly That in all cases of difficultie where the King shall please to demand the advise and opinions of both Houses of Parliament joyntly there both of them may and ought to joyne in delivering their opinions and Judgements of the case or thing propounded and this is all that * Cooke 3. Iâ—qâ— p 7. where is Case of â—â—grave is cited at large Sir Nicholas de Seagraves case proves 31. E. 1. rot 33. Who being charged in Parliament in presence of the King Earles Barons and OTHERS OF THE KINGS COUNCEL not the Commons or Burgesses but the Iudges and Kings learned Councell at Law * See the Free-holders Grand Inquest 2. 39. 40. 41. 42. and Privy Councell who were assistants to the Lords as I conceive and others of his Privy Councell which Sir Edward Cooke would have to expresse the Commons in Parliament then and there present that the King in the wars of Scotland being among his enemies Nicholas Seagrave his leigman who held of the King by Homage and fealty and served him for his ayd in that warre did maliciously move discord and contention without cause with John de Crombewell charging him with many enormous crimes and offered to prove it upon his body To whom the said John answered that hee would answer him in the Kings Court c. and thereupon gave him his faith After which Nicholas withdrew himselfe from the Kings host and ayd leaving the King in danger of his enemies and adjourned the said John to defend himselfe in the Court of the King of France and prefixed him a certaine day and so as much as in him was subjected and submitted the Dominion of the King and Kingdome to the subjection of the King of France and to effect this hee tooke his journey towards Dover to passe over into France All which he confessed and submitted himselfe therein de alto et basso to the Kings pleasure And hereupon the King willing HABERE AVISAMENIUM to have the advise of the EARLES BARONS LORDS magnatum and OTHERS OF HIS COUNCELL enjoyned them upon the Homage fealty and allegiance wherewith they were obliged to him quod ipsi fideliter CONSVLERENT they should faithfully ADVISE HIM what punishment should be inflicted for such a fact thus confessed Qui omnes habito super hoc diligenti tractatu avisamento c. Who all having had thereupon diligent debate and advise having considered and understood all things contained in the said fact DICVNT not by way of Iudgement judicially pronounced but of answer to the Kings question propounded and as their opinion of the cause Said that this fact DESERVES losse of life and members c. So as this offence notes Sir Edward Cooke was then adjudged in Parliament to be High Treason But under his favour First here was no Judgement at all given against the party himselfe but only an opinion and advise touching his case not pending judicially in Parliament by way of Inditement or Impeachment but voluntarily proposed by the King in answer to the Kings question and so it can be no proofe of any actuall proper Judicature vested in both Houses Secondly For ought appeares this question was only propounded to the Earles Lords Barons and the Kings Councell that assisted them and so only to the House of Peers not to the commons and answered resolved only by them * See the Freeholders grand Inquest p. 39. 40. 41. 42. aliorum de Concilio suo not expressing nor including the Commons as I apprehend being never so intitled in any Parliament Records for ought I can find And then it followes that the LORDS ONLY IN THAT AGE were the Judges even of Commoners cases Thirdly Admit the Commons were included yet it proves only a right of advising and delivering their opinions with the Lords when required by the King not of judging or pronouncing sentence Fourthly Sir Edward Cooke citing this president to prove That both Houses together have power of Iudicature must grant that even in 33. E. 1. there were two distinct Houses of Parliament who upon speciall occasions as now at conferences c. met and advised together and therefore the division of the Houses was before Edward the third his raigne and very probable as ancient as this summoning of Knights Citizens and Burgesses of the Parliament which some make no ancienter then King Henry the first or King Henry the third In the 40. yeare of his reigne Father to King Edward the first So as this president makes quite against the Levellers and Lilburnians designes The Freeholders Garnd Inquest p. 13. 14. 15. and opinions Fourthly Sir Iohn at Lees case 42. E. 3. num 20. said to be adjudged by the Lords and Commons is somewhat mistaken For the record only mentions That the 21 day of May the King gave thanks to the Lords and Commons for their coming and ayd granted on which day ALL THE LORDS SVNDRY OF THE COMMONS dined with the â—ing After which dinner Sir Iohn at Lee was brought before the King LORDS COMMONS next aforesaid who dined with the King to answer certaine objections made against him by William Latymer about the wardship of Robert Latymer that Sir John being of power had sent for him to London where by duresse of imprisonment he inforced the said William to surrender his estate unto him which done some other Articles were obâ—ected against the said Sir Iohn Of which for that he could not sufficiently purge himselfe HE was committed to the Tower of London there to remaine till he had made fine and ransome at the Kings pleasure and command given to the Constable of the Tower to keep him accordingly And then the said Lords and Commons departed After which he was brought before the Kings Councell at Westminster which COVNSELL ORDERED the said ward to be released into the Kings hands So as this record proves not this judgement was given in the Parliament house nor that the Lords and Commons adjudged Sir Iohn but rather the King and his Councell in the presence of the Lords and Commons Fifthly The judgement given against the Lord Latymer 15. E. 3. Parl. rot num 27. which was for his default in government against the profit of the King and Realm procuring of grants to the destruction of the Staple and Towne of Calayes and levying Impositions upon woolls was given in full Parliament BY THE BISHOPS and LORDS who