but are enforced to petition the King and Lords for his enlargement 3ly The Lords in the kings name command the Commons to chuse and present another Speaker in his room and that with all speed which they accordingly did and then present him to the King and Lords for their approbation who allowed of their choice In the Parliament of 38 H. 6. n. 35. There were divers Knights of Counties Citizens and Burgesses named returned and accepted some of them without any due or free election some of them without any election at all against the course of the Kings Lawes and the Liberties of the Commons of the Realm by vertue of the Kings Letters without any other election and by the means and labours of divers seditious and evil disposed persons only to destroy certain of the great faithfull Lords and Nobles and other faithfull liege people of the Realm out of hatred malice greedy and unsatiable covetousness to gain their Lands Inheritances Possessions Offices and goods as the Statute of 39 H. 6. c. 1. relates The Commons were so farr from having power to exclude or confirm their elections themselves that they petitioned the King by advise and assent of the Lords That all such Knights Citizens and Burgesses as were thus returned to this Parliament by vertue of the Kings Letters without any other election should be good and that no Sherif for returning them might incurr the pain therefore provided by the Statute of 23 H. 6. c. 15. Which the King and Lords assented to at their request In the Parliament of 39 H. 6. n. 9. Walter Clerk one of the Burgesses of Parliament for Chippenham was arrested and imprisoned in the Fleet for divers debts due to the King and others upon a Capias Vilagatum whereupon the Commons complained thereof to the King and Lords by Petition and desired his release and rendred them an Act of Parliament ready drawn for that purpose to which Petition and Bill of theirs the King by the assent of the Lords Spiritual and Temporal assented And thereupon he was freed Not by the Commons power order or judgement but by the Kings and Lords advice and assents William Hyde a Burgess of Chippenham in Wiltshire being taken in Execution upon a Capias ad satisfaciendum and imprisoned in the kings Bench during the Parliament contrary to his privilege the Commons thereupon by a Petition praved the King that by advice and assent of the Lords Spiritual and Temporal he might be delivered for the present by a Writ of privilege out of the Chancery which the King by the advice and assent of the Lords granted saving the right of his Prosecutors to have execution upon him again after the Parliament ended 14 E. 4. n. 55. In the Parliament of 17 E. 4. n. 36. John at-Will a Burgess for Exeter was condemned in the Exchequer upon 8. several Informations during the Parliament at the prosecution of Iohn Taylor of the same Town upon complaint thereof by the Commons to the King and Lords in Parliament by Petition the King by advice and assent of the Lords Spiritual and Temporal ordered that he should have as many Supersedeas against the said Judgements and Informations as he pleased until his coming home from the Parliament In these last recited cases the Commons had no power at all to deliver or enlarge their own Members when imprisoned as of late years they have practised but always petitioned to the King and Lords for their release and relief who thereupon released and relieved them against the breaches of their privileges when they saw good cause Which cases I have examined by and transcribed out of the Parliament Rolls themselves in the Tower and not taken upon trust or the Abridgements of them which leave out the main ingredients the Commons Petitions to and advice and assent of the King and Lords expressed in the Rolls at large Richard Strode Gentleman one of the Burgesses of Parliament for the Burge of Plympton in Devonshire in the Parliament of 4 H. 8. for agreeing with the Commons house in putting out Bills against certain abuses of the Tinners being a Tinner himself by the malice of John Furse Tinner Under-Steward of the Stannâ—ries and his misinformation that the said Richard Strâ—de at the last Parliament heldâ—n at Westminster would have avoided and utterly destroyed all Liberties Privileges and Franchises concerning the Scanneâ—ies was upon 4. Bills thereof made by the said Furse presented and found guilty of the premises in 4. several Stannery Courts and condemned to forfeit 40 l. on every Bill to the King upon an Act and Ordinance made by the Tinners to which he was never warned nor called to make answer contrary to all Laws right reason and good conscience And one John Aguiâ—â—iam begging 20 l. of the said forfeiture from the King caused the said Richard to be taken and imprisoned in Lidford Castle in a dungeon and deep pit under ground where he was fed only with bread and water to the peril of his life and was to have irons laid upon him Upon which he petitioned the Parliament for remedy and that it might be ordained and enacted by the King the Lords Spiritual and Temporal that the condemnations against him for the said 160 l. in the Stanneries and every parcel thereof and judgements and executions had or to be had for the premises might be utterly void and of none effect against him which was done for him accordingly And moreover it was enacted That all sutes accusations condemnations executions fines amerciameuts punishments corrections grants charges and impositions put or had or hereafter to be put or had upon the said Richard to every other person or persons that were in this Parliament or that of any Parliament hereafter shall be for any Bill speaking reasoning or declaring of any matter or matters concerning the Parliament to be communed or treated of be utterly void and of none effect And that any person vexed or troubled or otherwise charged for any causes as aforesaid shall have an action of the case against every person or persons so vexing or troubling him contrary to this Ordinance and recover treble damages and costs And that no protection Essoign or wager of Law shall in the said action in any wise be admiâ—red nor received as you may read in the Statutes at large 4 H. 8. ch 8. intituled an act concerning Richard Strode The Commons themselves being unable to releive him in this high breach of privilege but by a petition to the King and Lords and a special Act of Parliament made for him In the Parliament of 34 H. 8. there fell out this famous case thus at large recorded by Holinshed and Crompton out of him In the Lent season whilst the Parliament yet continued one George Ferrers Gentleman servant to the king being elected a Burgess for the Town of Plimmouth in the County of Devon in going to the Parliament House was arrested in
the Commons may sit alone as Cyphers but not as a Parliament or Council to vote impose or act any thing that is binding to the people since regularly they neither are nor ever yet were in any age no more a Parliament in any case without the King and Lords then the King and Lords alone are now a Parliament though antiently they were so of themselves without the Commons or the trunk of a man a perfect man without head or shoulders If 3. be joyntly impowred or commissioned to do any act by Commission Deed or Warrant any one or two of them can doe nothing without the third If many be in Commission of the Peace Sewers or the like three of the Quorum joyntly to act therein joyntly if any one of the three be absent or dead all the rest can doe nothing because their authority is joynt not single In Parliament it self 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 legal 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 custom of Parliament will make up an House as every mans experience can inform 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 for continuing this Parliament cannot make nor continue the Commons alone together as a Parliament no more than 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 personal or representative presence The cutting off the head alone or of the head and shoulders altogether destroys and kills the body Politick and Parliament as well as the body natural If the King dies or resigns his Crown or be deposed the Parliament thereby is actually dissolved as it was resolved in the Parl. of 1 H. 4. n 1 2 3. 1 H. 5. n. 26. 4 E. 4.44 and Cooks 4 Institutes p. 46. The last Parliament of 21 Jac. dissolved by his death So if the Lords or Commons dissolve and leave their House without any adjournment or if the King by his Writ dismisse or dissolve either of the Houses 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 only of Commoners when the old one only within the Act for continuing this Parliament made up both of King Lords and Commons is dissolved neither will nor can be supported or warranted by the Letter or intention of this Law or any other Law custom or right whatsoever Ninthly All the Petitions of the Commons in all antient modern Parliaments to the King Peers for their redresse of grievances recorded in our antient Parliamentary Rolls The usual Prologue to most of our antient printed Statutes in the Statutes at large in Poulton The King at the request of the Commons of or by the assent of the Prelates Dukes Earls Barons and other great men there assembled hath ordained these things or Acts underwritten all Acts of Parliament now extant usually running in this form The King with the assent of the Lords Spiritual and Temporal in Parliament hath ordained And be it enacted by the Kings moct excellent Majesty the Lords Spiritual and Temporal in this present Parliament assembled The famous Petition of Right 3 Car. so much insisted on beginning thus Humbly shew unto our Soveraign Lord the King the Lords Spiritual and Temporal and Commons in Parliament assembled thus answered by the King Let right be done as is desired The Act for 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 very Protestation and Solemn League and Covenant taken by the Commons Lords and prescribed by them to all others throughout the three kingdoms which couple the Lords and Commons always together neither of them alone being able to make any binding Act nor Ordinance to the Subjects unlesse they both concurr and have the Kings royal assent thereto no more than one Member alone of the House can make a House and ranck the Lords always before the Commons and the King before them both so firmly hold forth establish the Lords and Kings undoubted Rights to sit and Vote in Parliament and decry this new invented Monopoly of a sole Parliament of Commons without King or Lords and that absolute Sovereign Power these Lilburnists new Lights have spied out and set up for them in Utopia that impudency it self would blush to vent such mad absurd irrational Frenzies and Paradoxes as these crack brain'd persons dare to publish and they may with as much truth and reason argue that one man is three that the Leggs and trunk of a man are a perfect man without head neck arms and shoulders or that the Leggs Ribs Bowels of the Body are and ought to be placed above the head neck shoulders as that the House of Commons are or ought to be an entire Parliament the sole Legislative Power the only Supreme Authority paramount both King and Lords who must not now have so much as a Negative voice to deny or contradict any of the Commons Votes or Ordinances though never so rash unjust dishonourable prejudicial or dangerous to the whole Kingdom as these new Dogmatists affirm Tenthly The Commons themselves in their joynt Declaration and Resolution with the Lords this Parliament concerning his Majesties late Proclamation 9 August 1642. printed by their special order declare and stile his House of Péers to be the Hereditary Counsellors of the Kingdom The like they declare in their Declaration of 16 January 1642. Mr. John Pym in his Speech at Guildhall in London 14 January 1642. made and printed by the Commons special order asserted That the Lords have an Hereditary interest in making Laws in this Kingdom The Commons House in their Remonstrance of the State of the Kingdom 15 December 1641. affirm That the Peers are the Kings Great Council That the King summoned the Great Council of Péers to meet at York the 24. of September and there declared a Parliament to begin the 3. of November following In which Parliament when the Lords and Commons met they add But what can we the Commons doe without the conjunction of the House of Lords and what conjunction can we expect there when the Bishops and Recusant Lords are so numerous and prevâ—lent thereby confessing that without the Lords concurrence who are the Great Council of the Realm the
the Attainders repealed by Bill afterwards In the Parliament of 25 H. 8. c. 12. Elizabeth Barkin Richard Master Edward Barkin and sundry others were attainted and condemned of High Treason John Fisher Bishop of Rochester Thomas Gold and others of misprission of High Treason by Act of Parliament In the Parliament of 28 H. 8. c. 7. Queen Anne George Lord Rochford Sir Henry Norris Sir Francis Weston William Breerton Esquire and Mark Sutton were convicted and attainted of High Treason and their lands forfeited by Bill In the Parliament of 32 H. 8. Thomas Lord Cornwell was convicted and attainted of High Treason by Bill against Law and the great Charter without ever being called to answer or any legal hearing for the Treasons therein expressed according â—o his own intentions to have thus proceeded against others without legal tryal In the Parliament of 33 H. 8. c. 21. Queen Katherine Jane Lady Rochford were convicted and attainted of High Treason by Bill to which Act the king was enabled to give his royal assent by Letters Patents signed by him under his hand with his great Seal notified and published in the HIGHER HOUSE to the Lords Spiritual and Temporal and the Commons there assembled without comming to the House in person to give his royal assent thereto In the Parliament of 2 3. Ed. 6. ch 17. Sir william Sharington Knight being indicted and attainted of High Treason for forging and coyning of mony called Testons his attainder was confirmed by Act of Parliament and his lands forfeited And ch 18 Sir Thomas Seymor Lord Seymor of Sudley and high Admiral of England for his trayterous aspiring to the Crown of this Realm and to be King of the same and for compassing and imagining by open Act to deprive the King of his royal estate and title of his Realms and for compassing and imagining the death of his Noblemen and most trayterously to take away and destroy all things which should have sounded to the let or impediment of this his most trayterous and ambitious enterprise as the Act recites and for other his misdemeanors innumerable untruths falshoods deceiptfull practises outrages against the King oppression manifest extortion upon the Subjects of the Realm was adjudged and attainted of high Treason by Bill and to sustain such pain of death and other forfeitures aes in cases of High Treason have been used being a Member so unnaturul unkind and corrupt and such a heynous offender of his Majesty and his Laws that he cannot nor may not conveniently be suffered to remain in the body of the Commonwealth but to the extreme danger of the Kings Highness being the head and of all the good Members of the same and of too pernicious and dangerous example that such a person so bound to his Majesty by sundry great benefits and so forgetfull of them and so cruelly and urgently continuing in his false and treacherous intents and purposes against his Highness and the whole estate of his Realm should remain among us In the Parliament of 1 Mariae ch 1. the Attainder of Queen Katherine is reversed by Bill and ch 16. the Attainders of John Duke of Northumberland Thomas Cranmer Archbishop of Canterbury William Marquess of Northampton John Earl of Warwick Sir Ambrose Dudley with other Knights and Gentlemen formerly convicted and attainted of Treason according to the Law of the Realm for their detestable and abominable Treasons in proclaiming and setting up Queen Jane to the peril and great danger of the person of Queen Mary and to the utter loss disherison and destruction of the Realm of England if God in his infinite goodness had not in due time revealed their trayterous intents as the Act recites at the Petition and with the assent of the Lords Spiritual and Temporal and Commons in Parliament were confirmed and ratified by a special Act. In the Parliament of 29 Eliz. c. 1. the Attainders of Thomas Lord Paget Sir Francis Englefield and sundry other Knights and Gentlemen who were lawfully indicted convicted and attainted of many unnatural detestable and abominable Treasons to the fearfull peril and danger of the destruction of the Queens Majesties person and of the Realm were confirmed by a special Act and ch 3. there is another Act to avoid fraudulent assurances made in certain cases by Traytors In the Parliament of 3 Jacobi ch 2. Sir Everâ—rd Digby Robert Winter Guy Fawkes Robert Catesâ—y and all the rest of the Gunpowder Traytors who undertook the execution of the most barbarous execrable and abominable Treason that could ever enter into the hearts of most wicked men by blowing up the Lords House of Parliament with the King Queen Prince Lords Spiritual and Temporal Judges Knights Citizens and Burgesses of Parliament therein assembled were attainted of High Treason and their former attainders and convictions confirmed by a special Act And in this very last Parliament the Earl of Strafford Lord Deputy of Ireland and William Laud Archbishop of Canterbury after judgement of high Treason upon their several impeachments and trials given against them by the Lords in their House were likewise attainted of Treason and their judgements ratified by a special Bill and Ordinance to which the Commons assented as well as the Lords their assents to Attainders by way of Act or Bill being so necessary that if the King in Parliament Wills that such a man shall be attainted of Treason and lose his lands and the Lords assent and nothing is spoken of the Commons in the Bill this is no Act nor good Attainder in Law and the petson shall be restored by the opinion of all the Judges 4 H. 7. f. 18. Broke Parliam 42. Fitz. 3.7 H. 7.14 11 H. 7.27 Broke Parliam 107. Plowden 79.32 H. 6.18 As the Commons in our English Parliaments have assented to all these and some other Bills and Acts of Attainder cited in Sir Edward Cooks 4 Institutes ch 1 2. and Mr. St. Johns Argument at Law concerning the Bill of Attainder of High Treason of Thomas Earl of Strafford printed by Order of the Commons House 1641. So I find that the Commons in Ireland have done the like in the Parliaments held in Ireland as the Printed Statutes of Ireland 28 H. 8. c. 1. for the Attainder of the Earl of Kildare and others of High Treason 11 Eliz. ch 1. for the Attainder of Shan O Neyle and others of High Treason of 13 Eliz ch 6. 7. for the Attainders of Fiâ—zgerald and others of High Treason Of 27 Eliz. ch 1. for the Attainders of Iames Eustace and others of High Treason of 28 Eliz. ch 8. 9. for the Attainders of the Earl of Desmond John Brown and others and of 11 Jacobi ch 4. for the Attainders of the Earl of Tyrone and others of High Treason for their several rebellions insurrections wars against their Soveraigns and other Treasons mentioned in these respective Acts abundantly evidence But yet the Commons assents to all these Bills
the said Thomas and Roger as aforesaid but that the judgement and declaration had and given against the said John late Earl of Sarum were a good just and legal Declaration and Iudgement Per quod consideratum suit in praesenti Parliamento per praedictos Dominos tunc ibidem existentes de assensu diâ— Domini nostri Regis quod praefatus nunc Comes Sarum nihil capiat per petitionem aut prosecutionem suam praedictam Et ulterius tam Domini spirituales quam temporales supradicti judicium et Declarationem pradicta versus dictum Joannem quondam Comitem Sarum ut praemittitur habita sive reddita de assensu ipsius Domini Regis affirmarunt fore et esse bona justa et legalia et ea pro hujusmodi ex abundanti decreverunt et adjudicarunt tuuc ibidem This is all that is mentioned in that Parliament Roll concerning this businesse Sir Edw. Cook who hath an excellent faculty above all others I have yet met with in mistaking mis-reciting and perversing Records and Law-books too oft times which he had no leisure to peruse which I desire all Lawyers and others to take notice of who deem all he writes to be Oracle lest they be seduced by him in his 4 Institutes p. 23. affirms with confidence That in this Rot. Parl. 2. H. 5. n. 13. Error was assigned to reverse this judgement that the Lords gave judgement without Petition or assent of the COMMONS citing it to prove that the COMMONS have a power of judicature together with the LORDS But under his favour I can assure ye Reader 1. That there is no such error at all either mentioned or intended in this Record nor any one syllable tending to that purpose 2ly The Petition mentions no error at all in this judgement but only remembers two presidents of judgement formerly reversed the first in the case of Thomas Earl of Lancaster in 15 E. 2. which judgement was given against him at Pomfret Castle which was afterwards reversed as Sir Edward Cooke himself informs us in his 3 Institutes c. 7. p. 52 53. in Pas 39 E. 3. Coram rege rot 92. for this only reason Qua contra Chartam de libertatibus cum dictus Thomas fuit unus PARIVM MAGNATUM Regni non imprisonetur c. nec dictus Rex super eum ibit nec super eum mittet nisi per legale judicium PARIUM SUORVM c. tamen tempore pacis absque juramento seu responsione seu legale judicio PARIUM SUORUM c. adjudicatus est morti The other was the judgement given against Roger Mortymer in the Parliament of 4 E. 3. reversed for the like reason in the Parliament of 28 E. 3. n. 10 11 12. forecited being condemned and executed by the Lords without any arraignment hearing trial or answer against the Great Charter Now these two Presidents are pointblank against this pretended error alleged by Sir Edward Cook That the Lords gave judgement without the assent of the Commons and it had been very improper for them to allege the reversal of them for want of a legal tryal by their Peers to prove that the Commons who are no Peers should have assented to the Earl of Salisburies judgement and because they did it not it was Error and reversible These presidents therefore might have minded him of his gross mistake 3ly The King and Lords upon consideration declared and adjudged these two cases and judgements upon perusal of them not to be like the case of the Earl of Salisbury who being slain in rebellion and actual war against the king could not be personally arraigned and condemned as the other two might and ought to have been and therefore the judgement given against him in this case by the King and Lords in Parliament who were his Peers was a good just and legal judgement and no ways against the great Charter 4ly The Commons themselves in the Parliament o 13 H. 4. rot Parl. n. 19. acknowledged this judgement to be good without their assents by their Petition to the Kâ—ng that John Lumly whose Father was attainted of Treason by it together with the Earl of Salisbury might be restored to blood and lands by Act of Parliament and the Kings grace notwithstanding this judgement of Treason against them Which the King by assent of the Lords Spiritual and Temporal consented unto 5 ly In the Parliament of 3 E. 4. n. 31 32. this judgement was made void and repealed out of the Kings Grace by a special act of Parliament and the heir restored but the judgement not reversed for any Error 6ly Had there been any such Error assigned as is alleged yet the King and Lords upon solemn debate and deliberation over-ruled and adjudged it to be no Error at all as he pretends it and thereupon abated the Petition and adjudged the Judgement and Declaration given by the Lords alone with the Kings assent in 2 H. 4. without the Commons Petition or assent to be GOOD JUST AND LEGAL reconfirming it a new on Record as such Therfore it was a gross oversight in him to assign and print it as an Error and a President of the Commons House or both Houses power of judicatures together when as it is a most undeniable double Parliamentary resolution of the Kings and Lords sole right of judicature of their declaring and judging in Parliament what is Treason and what not within the Statute of 25 E. 1. without the Commons assent or privity and an unanswerable refutation of his sole opinion to the contrary in his 3 Institutes c. 2. p. 22. which he opposeth against not only these two Parliamentary resolutions but likewise against 5 H. 4. n. 11 12.15 and 17 R. 2. rot Parl. n. 20. there quoted by him By this you may judge how little credit is to be given to Sir Edwards quotations and authority in matters concerning Parliamentary Judgements and Records In the Parliament of 28 H. 6. rot Parl. n. 14. to 53. The Commons generally accusing William de la Pool Duke of Suffolk to the King and Lords he thereupon required of the king that he might be specially accused and heard to answer to that which many men reported of him to be an untrue man making therewith a protestation of his manifold good services in the wars and as a Privy Counsellor for sundry years and so asking God mercy as he had been true to the King and his Realm required his purgation The 26 of January the Commons required that for this his Confession he might be committed to ward The Lords and Judges upon consultation thought there was no good cause for that unlesse some special matter were objected against him The 28 day of January the Speaker declared that the said Duke as it was said had sold the Realm to the French who had prepared to come hither and for his own defence had furnished Wallingford Castle with all warlike necessaries upon whose request the said Duke was then
the Prior of Coventry the King granteth by Assent of the Bishops and Lords that no man do break the head of their Conduit nor cast any filth into their water called Sherbouâ—n on pain of ten pound and treble dammages to the Prior. In the Parliament of 9. H. 5. n. 12. Upon long debates of the Lords and Iustices it was resolved by them that the Abbot of Ramsy should have no prohibition against Walter Cook parson of Somersham who sued for Tithes of a Meadow called Crowland Mead in the hands of the Abbots Tenants In the great case of Precedency between the Earl Marshall and Earle of Warwick in the Parliament of 3. H. 6. n. 10 11. c. The Lords being to bee Iudges of the same suspended both of them from sitting in the house till their case was fully heard and they all voluntarily swore on the Gospel that they would uprightly judge the case leaving all affection In the Parliament of 11. H. 6. n. 32 33 34 35. Upon a Petition the King and Lords in Parliament adjudged the Dignity Seigniory Earledome of Arundel and the Castle and Lands thereunto belonging to John Earle of Arundel who proved his Title thereto by a deed of Entayle against the Title of John Duke of Norfolck who layed claim thereunto And in the Parliament of 39 H. 6. n. 10. to 33. The claime of the Duke of York and his Title to the Crown of England against the Title of King Henry the 6 th was exhibited to the Lords in full Parliament the Lords upon consultation willed it to be read amongst them but not to bee answered without the King The Lords upon long consultation declared this Title to the King who willed them to call his Justices Sergeants and Attorney to answer the same Who being called accordingly utterly refused to answer the same Order thereupon was taken That every Lord might therein freely utter his conceit without any impeachment to him In the end there were five objections made against the Dukes Title who put in an answer to every of them which done the Lords upon debate made this order and agreement between the King and Duke That the King should injoy the Crown of England during his life and the Duke and his heirs to succeed after him That the Duke and his two sons should bee sworne by no means to shorten the dayes or impaire the preheminence of the King during his life That the said Duke from thenceforth shall be reputed and stiled to bee the very Heir apparent to the Crown and shall injoy the same after the death or resignation of the said King That the said Duke shall have hereditaments allotted to him and his sons of the annual value of ten thousand marks That the compassing of the death of the said Duke shall bee Treason That all the Bishops and Lords in full Parliament shall swear to the Duke and to his heirs in forme aforesaid That the said Duke and his two sons shall swear to defend the Lords for this agreement The King by Assent of the Lords without the Commons agreeth to all the Ordinances and accords aforesaid and by the Assent of the Lords utterly repealeth the statute of intayle of the Crown made in 1. H. 4. so alwaies as hereafter there be no better Title proved for the defeating of their Title and this agreement by the King After all which the said Duke and the two Earles his sonnes came into the Parliament Chamber before the King and LORDS and sware to performe the award aforesaid with protestation if the King for his part duly observed the same the which the King promised to do All which was inrolled in the Parliament Rolls Lo here the Lords alone without the Commons judge and make an award between King Henry the 6th and the Duke of York in the highest point of right and title that could come in question before them even the right and title to the Crown of England then controverted and decided the King and Duke both submitting and assenting to their award and promising swearing mutually to perform it which award when made was confirmed by an Act passed that Parliament to which the Commons assented as they did to other Acts and Bills And here I cannot but take special notice of Gods admirable Providence and retaliating Justice in the translation of the Crown of England from one head family of the royal blood to another by blood force war treason and countenance of the Authority of the temporal and spiritual LORDS and COMMONS in Parliament in the two most signal presidents of King Edward and King Richard the 2 d. which some insist on to prove the Commons Copartnership with the Lords in the power of Judicature in our Parliaments the Histories of whose Resignations of their Regal Authority and subsequent depositions by Parliament I shall truly relate Anno 1326. the 19. of Ed. 2d Queen Isabel returning with her Son Prince Edward and some armed forces from beyond the Seas into England most of the Earles and Barons out of hatred to the Spencers and Kingâ— repaired to them and made up a very great army The King thereupon proclaimed that every man should resist oppose kill them except the Queen Prince and Earle of Kent which they should take prisoners if they could and neither hold any correspondency with them nor administer victuals nor any other assistance to them under pain of forfeiting their bodies estates But they prevailing and the King being deserted by most hee fled into Wales for shelter Whereupon Proclamation was made in the Queens army every day that the King should return and receive his Kingdome again if hee would conforme himself to his Leiges Quo non comparente Magnasâ—es Regni Hereâ—ordiae Concilium injeâ—unt in quo filius Regis Edwardus factus est Cusâ—os Angliae communi Decreto cui cuncti tanquam Regni custodi fidelitatem fecerunt per fidei sacramentum Deinde Episcopum Norwicensem fecerunt Cancellarium Episcopum vero Wintoniensem regni Thesaururium statuerunt Soon after the King himself with most of his evil Counsellors were taken prisoners being betrayed by the Welch in whom they most confided Hagh Spencer Simon Reding Baldoik and others of the Kings party being executed at Hereford Anno 1327. the King came to London about the feast of Epiphany where they were received with great joy and presents Then they held a Parliament wherein they all agreed the King was unworthy of the Crown and fit to be deposed for which end there were certain Articles drawn up against him which Adam de Orleton Bishop of Winchester thus relates in his Apology i Ea autem quae de Consilio et assensu omnium Praelatorum Comitum et Baronum et totius Communitatis dicti Regni concordata ordinata fuerunt contra dictum regem ad amotionem suam a regimine regni contenta sunt in instrumentis publicis Reverendo patre domino J. Dei
though amiable delightfull in themselves and gratefull to all true Philopaters Philologers and learâ—ed Nobles Statesmen Lawyers Scholars in this degenerous age wherein all sorts of Learning and insight in Records or Parliamentary Antiquities are very much decayed will yet be very displeasing to some sorts of ignorant heady extravagant persons who love darkness more than light because their deeds are evil but more especially to the Anabaptistical Levellers Lilburnians innovating Publicans and Republicans much like the Chaldeans of old a bitter and hasty Nation lately marching through the breâ—th of the Land to possesâ— the dwelling places that are not theirs they are terrible and dreadfull their judgement and dignity proceedeth of themselves they are all for violence they scoff at KINGS AND PRINCES ARE A SCORN UNTO THEM as appears by their late Votes Declarations Engagements not only against Kings and Kingship but the whole House of Lords and to â—lliterate self-conceited Lawyers and ignorant Members of the Commons House who deem that House and its Committees if not every Member of it the only Supream Judges and Judicature of the Realm paramount our Kings Lords Laws Liberties Great Charters and all other Courts of Justice having an absolute arbitrary unlimited power to act vote and determine what they please without appeal or consult which this Plea irrefragably disproves as a most gross and dangerous mistake for which they will frown upon it if not â—ate and prosecute me as their Enemy But the Sun must not cease from shining because weak and sore Eyes will be offended with its splendor nor seasonable truths of most publike concernment be concealed smothered in time of greatest need because ignorant erronious sottish â—air-braind Levellers or Innovator will be displeased with and storm against them they being always Sweet and lovely in themselves yea precious to the best of men and will prove victorious in conclusion though clouded suppressed maligned for the preâ—ent yea he who by the publication of such truths rebukes wise ingenuous mens extravagant actions and opinions for the present shall afterwards find more favour with them when they come to know themselves and their mistakes by meditating on the truths revealed to them heâ— he that flattereth them with his lips in their exorbitant actions or erronious opinions I shall therefore recommend this Plea for the Lords and all the truths therein discovered asserted to the omnipotent â—rotection and effectual blessing both of THE LORD OF LORDS and GOD OF TRUTH whose Eyes are upon the TRUTH in this sad age of Errors Falshoods Lies Fraud and desperate Hypocrisie wherein truth is fallen in the Streets and he that dares boldly assert it is reputed mad and maketh himself a prey And shall leave it as a lasting monument to posterity of my Cordial affection to the antient Parliamentary proceedings Lords Peers Laws Liberties Properties Great Charters of the English Nation and my sincere endeavours to plead their cause in the worst of times against all their Antagonists and professed Enemies though never so numerous and formidable albeit to my own private prejudice Whatever the Reader shall find wanting in this Plea relating to the Constitution Summons Proceedings of our antient English Parliaments in general or to the power Judicature Rights privileges transactions of our Kings Lords or House of Com. in Parl. in particular you may read at leisure in my Preface and Tables to An Exact Abridgement of the Records in the Tower of London from the reign of King Edward the 2. to Richard the 3. and in the Abridgement it self collected by that famous Antiquarie Sir Robert Cotton lately published which will better instruct the Readers in all Parliamentary affairs than all the slight unsatisfactory Treatises of our Parliaments hitherto published except this Plea which I humbly submit to the friendly Imbrace and impartial Censure of every Judicious Reader especially of my own profession for whom it is most proper whose general ignorance and mistakes in Parliament Antiquities proceedings and matters of the Crown hath brought some disparagement upon the function and led others into dangerous publike Errors which that this Plea may wipe off and rectifie hereafter for the common benefit ease settlement re-establishment of our late dissipated Parliaments and confused distracted Nations shall be the Vote and dayly prayer of Thy unfeigned Friend and his Countries publike unmercenary Servant WILLIAM PRYNNE Lincolns-Inne 6 Decemb. 1657. A Plea for the LORDS AND HOUSE of PEERS OR A short yet full and necessary Vindication of the Judiciary and Legislative Power of the House of Peers and the Hereditary just Right of the Lords and Barons of this Realm to sit vote judge in the high Court of Parliament THe treasonable destructive design of divers dangerous Anabaptists Levellers Agitators in the Army City Countrey and of Lilburn Overton their Champions Ring-leaders in this Seditious Plot to dethrone the King unlord the Lords new-model the House of Commons extirpate Monarchâ— suppress the House of Peers and subvert Parliaments the only obstacles to their pretended Polarchy Anarchy are now so legible in their many late printed Petitions Lâ—bels Pamphlets so visible in their actings and publike proceedings that it rather requires our diligence and expedition to prevent than hesitancy to doubt or dispute them they positively protesting against yea denying both King and Monarchy in their late printed Pamphlets Remonstrances with the Power Judicature of the House of Peers and their undoubted just Hereditary right to vote act or sit in Parliament because they are not elecâ—ed by the people as Knights and Burgesses are asserting That they are no natural issues of our Laws 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 Kingdom OUGHT TO ARISE meer arbitrary Tyrants Vsurpers an illegitimate and illegal power and Judicatory who act and Vote in our affairs but as INTRUDERS who ought of right not to judge censure or imprison any Commoner of England even for libelling against them refusing to appear before them reviling and contemning them and their Authority to their faces at their very Barr as Lilburn Overton boast and print they did or breaking any of their undoubted Privileges To accomplish this their design 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 down stiling and proclaming the Commons in their Petitions and Pamphlets The ONLY Supreme legal Judicatory of the Land who ought BY RIGHT to judge the Lords and their proceedings from whom they appeal for right and reparations against the House of Peers affirming That in the Commons House alone resides the formal and legal Supreme Power of England who ONLY are chosen by the People and THEREFORE IN THEM ONLY
praesenti supersit His horumque similibus regali facundia editis praefaâ—us Petrus assensum praebere utile judicavit annuit Quapropter larga regis munificentia magnifice honoratus nullo modo se quicquam antiquae dignitatis derogaturum immo ut dignitatis ipsius gloria undecunque augmentaretur spoâ—pondit plena fide elaboraturum Pax itaque firma inter eos firmata est qui Legati officio fungi in tota Britannia venerat immunis ab omni officio tali cum ingenti pompa via qua venerat extra Angliam a Rege missus est At Canterbury he perused the antient privileges granted to the Prelates by the See of Rome touching their superiority over York Quibus ille perspectis atque perpensis testatus etiam ipse est Ecclesiam Cantuariensem grave nimis immoderatum praejudicium esse perpessam quatenus hoc velocius corrigeretur â—e modis omnibus opem adhibiturum pollicitus est Post haec Angliam egreditur By all these Parliamentary Councils and Proceedings in them and the Kings answer to this Legate it is most apparent from the testimony of Eadmorus present at most of them and then antient Hiâ—orians 1. That they all consisted during all the reign of King Henry the 1. of the King Bishops Abbots Earls Lords and Barons without any Knights Citizens Burgesses or Commons elected by the people 2ly That not only the legislative but judicial power or judicature of Parliament in all civil ecclesiastical and criminal causes debated or judged in them resided wholly in the King Prelates Earls Barons and Nobles which they joyntly and severally exercised by mutual consent as there was occasion 3ly That our Kings Prelates Nobles were then all very vigilant and zealous in opposing the Popes usurpations upon the antient Liberties Privileges Customs of the king kingdom and Church of England 4ly That those Antiquaries and others are much mistaken who affirm the Commons were called to the Parliament of 16 H. 1. as well as the Peers and Nobles and that since that time the authority of this Court hath stood setled and the COMMONALTY had their voice therein which the said H. 1. GRANTED TO THEM in love to the English Nation being a natural Englishman himself when as the Normans were upon terms of revolt from him to his Brother Robert Duke of Normandie it being clear by these Histories and all the Parliamentary Councils under King Henry the 1. and under Hen. the 2. King Ric. the 1. King John and Henry the 3. forecited and here ensuing that there were no Knights Citizens Burgesses or Commons elected by the people summoned to our Parliaments in their reigns succeeding Henry the 1. therefore not in his 5ly That the Opinion of Mr. Cambden Judge Dodridge Jo. Holland Sir Ro. Cotton Mr. Selden and others is true that the first Writ of Summons of any Knights Citizens Burgesses or Commons to Parliament now extant is no antienter than 49 H. 3. dors 10.11 That King Henry the 3. after the ending of the Barons wars appointed and ordained That all those Earls and Barons of the Realm to whom the King himself should vouchsafe to send his Writ of Summons should come to his Parliament and none else but such as should be chosen by the voice of the Burgesses and Freemen by other Writs of the king directed to them And that this being begun about the end of Hen. the 3. was perfected and continued by Edward the 1. and his Successors Which Holinshed Speed do likewise intimate in general terms So that upon due consideration of all Histories Records and judicious Antiquaries it is most apparent that the Commons had no place nor votes by election in our Parliaments in Hen. 1. his reign noâ— before the latter end of King H. 3. and Ed. 1. who perfected what his Father newly before him began in summoning them to Parliaments This being an irrefragable truth as I conceive the next thing to be considered of is this whether the Commons when thus called and admitted by H. 3. and E. 1. into our Parliaments had any share right or interest in the judicature of Parliaments then granted to them either as severed from or joyntly with the King and Lords And if any share or right at all therein at what time and in what cases was it granted or indulged to them With submission to better judgements I am clear of opinion that the King and Lords when they first called the Knights Citizens and Burgesses to Parliament never admitted them to any share or copartnership with them in the antient ordinary Judicial power of Parl. in civil or criminal causes brought before them by Writ Impeachment Petition or Articles of complaint as they were the supreme judicature and Court of Justice but reserved the judicial power and right of giving and pronouncing all Judgements in Parliament in such cases and ways of proceeding wholly to themselves admitting them only to share with them in their consultative Legislative and Tax imposing power as the Common Council of the Realm thereby in cases of Attainder by Act Bill or Ordinance a part of the Legislative not ordinary judicial authority of Parliament allowed them a voice and partnership with themselves and a share in reversing such Aâ—tainders by Act Bill or Ordinance by another Bill or Sentence but in no cases else except such alone wherein the King or Lords should voluntarily at their own pleasures not of meer right requite their concurrence with them The Arguments reasons inducing me to this opinion and irrefragably evincing it are these 1. The Form of the Writs for electing Knights Citizens Burgesses of Parliament with the retorns and Indentures annexed to them which are only ad faciendum consentiendum his quae tunc ibidem de Communi Concilio dicti regni contigerint ordinari Which gives them no judicial power in civil or criminal causes there adjudged as the Writs to the Lords doe give to them by these clauses Ibidem cum Praelatis Magnatibus Proceribus regni colloquium habere tractatum vobiscum c. colloquium habere tractare Personaliter intersitis Nobiscum ac cum Praelatis Magnatibus Proceribus super dictis negotiis tractaturi vestrumque consilium impensuri and usage custom time out of mind 2. Because when first summoned to our Parliaments they were never called nor admitted thereunto as Members of the Lords house or as persons equal to them in power nor admitted to sit in the same Chamber as Peers with them but as Members of an inferiour degree sitting in a distinct Chamber from them by themselves at first as they have done ever since which I have elsewhere proved against Sir Edward Cooks and others mistakes as Modus tenendi Parliamentum it self resolves if it be of any credit 3ly Because after their call to our Parliaments in 49 H. 3. they had scarce the Name nor Form of an House of Commons or Lower
vote down the Lord Mayor and Aldermen and reverse their Orders and Judgements in their Court upon appeals unto them They being in nature of Grand Jury men and the General Inquisitors of the Realm to inquire of present and impeach transmit delinquents of all sorts in Parliament to the Lords House their only Judges Cooks 4. Instit p. 24. 3ly That the King and House of Lords are now of right and still ought to be the only true and proper Judges of all Parliamentary Causes and Controversies Civil Ecclesiastical or Criminal whether they concern Peers Clergymen or Commoners as they were originally before any Knights Citizens or Burgesses summoned to them To clear this from all Scruples and avoid mistakes I must inform you that there is a twofold way of proceeding and judgeing in Parliaments The 1. extraordinary and extrajudicial by way of Bill Act or Ordinance by the Legislative power alone such Bills Acts Ordinances ratifying only the precedent judgements of the Lords passed against Malefactors being not any proper actual Judgements in their own name This is evident by one of the first cases wherin the Commons after their admission into our Parliaments were made parties to a Judgement by way of Bill In the Parliament of 15 E. 2. there were sundry Articles of High Treason in accroaching royal Power in divers cases c. as likewise of misdemeanour and Breach of the Great Charter exhibited against the 2. Hugh Spencers both privy Counsellors of the realm which upon examination were found true BY THE EARLS BARONS OTHER PEERS OF THE LAND Parquoy NOVS PIERS DE LATERRE COUNTS BARONS en la presence nostre SEIGNOUR LE ROY AGARD que Sir Hugh le Despenser le Fitz Sir Hugh le Despenser le piere soient disheritz a touts jours come disheritours de la corone enemies du roy de son people que ilz soient de tout exiles hors du royalme Dangliterre sans retourner in nul temps si ceo ne soit de assent nostre Seignor le Roy de lassent DES PRELATS COUNTS ET BARONS et ceo en parlement duement somons Et les donons port a Dover nul parte aillours a voyder a passer hors du royalm Dangliterre enter cy la feast de sainct John le Baptist prochein avenir cest jour accompte Et si lesâ— it Sir Hugh Sir Hugh demurgent en le royalme Dangliterre oustre le dit jour que done lour est de voyder de passer come desuis est dist ou que apres le dit jour retournet adonques soit fait de eux come de enemies de roy de roialme This judgement being given against them in Parliament only by the Peers Earls and Barons in the presence of the King as the Close of the Act for their banishment and Clause Roll of that year recite thereupon there was an Act drawn up wherein all the Articles and the judgement given against them are recited for confirmation of this Judgement wherein the Prelates and Commons were made parties though not to the judgement it self beginning thus Al honeur de deiu c. luy monstrent Prelates Counts Barons et les autres Pieres de la terre COMMON de Royalm contre Sir Hugh c. To which Act the King much against his will to prevent a warr consented The History of the Lords proceedings against these Spencers is thus related by Walsingham There falling out a difference between Hugh Spencer the younger and Earl of Hereford about lands which Spencer purchased of William de Brews which the Earl desired to buy and had first contracted for but Spencer by his power at Court bought from him the Earl thereupon being much incensed complained of this injury to Thomas Earl of Lancaster qui allicientes caeteros pene cunctos Comites Barones in partem suam conjurationem fecerunt maximum ad vivendum moriendum pro justitia regni proditores pro viribus destruendis praecipue utrunque Hugonem de Spencer patrem scilicet atque filium quos odio inexorabili perstringebant eo maxime quia regem ducebant pro suae voluntatis arbitrio in tantum quod nec Comes nec Baro nec Episcopus quicquam valuit expedire in Curia sine horum consilio vel favore Omnium ergo livore persequebantur qui omnibus pene dominabantur quo plus crevit eorum gloria eo amplius contra illos crevit invidia quae semper accrescit abundantia aliorum Igitur Barones duce Thoma de Lancastria apud Shirborn in Elmedon convenerunt faederati prout dicitur juramentis astricti ad prosequendum propositum usque ad corporis animae divisionem Sed tamen pene cuncti praeâ—er Thomam de Lancastria Humfridum Comitem de Herefordia paucos alios ante finem negotii retrorsum abierunt prae timore mortis sese Regi dediderunt sed haec inferius plenius videbuntur Cumque Barones ut praefertur apud Shirburnam convenissent quosdam artirulos proscriptionem dictorum Hugonis Hugoniâ— composuerunt sed tamen vias juris et aequitatis in hac parte penitus omiserunt suorum pro tempore exequentes impetus animorum Nam illorum bona qui illis vel amicitia vel affinitate juncti fuerant furibunde invadebant capientes castra per violentiam vastantes praedia per malitiam perimentes famulos reperâ—os iâ— custodiis eorundem dolentes ob hoc tantummodo quod eorum personas capere quos oderunt minime potuerunt praedicta furia de die in diem vires sumente Barones vexillis explicatis ad sanctum Albanum veniunt per viam deripientes ubique victualiâ— pauperes terrae gravantes In hac comitiva fuerant quidam qui propter inveteratum odium monasterium sancti Albani dictique loci Monachos se gravaturos devoverant Sed tamen disponente Deo qui neminem temptari permittit supra vires horum magister autor tantae malitiae in villa de Alysbury priusquam ad sanctum AlbanuÌ„ attingeret morbo percussus irremediabili propriis seipsum descerpit manibus post duos dies miserabiliter expiravit Caeteri tam formidabili tremefacti vindicta casum pro miracuâ—o reputantes ab executione voti illiciti timore magis quam amore destiterunâ— Magnates vero apud sanctum Albanum cum suis armatis exercitibus per triduum perhen inâ—ntes miserunt solennes ad Regem nuncios Londoniis commorantem Londoniensem Sarisburiensem Eliensem Herefordensem Cicistrensem Praesules qui tunc apud sanctum Albanum convenerant pro pace reformanda mandantes ut dominus rex non solum suam vacuaret curiam sed regnum suum de regni Proditoribus Hugone Hugone le Spencer per communitatem terrae in multis condemnatis articulis exiliumque meritum subire permitteret si diligeret regni pacem Petierunâ— Barones insuper
made and if he do not he shall be attainted of the said deed and pay to the party grieved his double damages to be taxed by the Judges of the said Bench for the time being or by Enquest if need be and also he shall make fine and ransom at the kings will which was accordingly executed as appears by 8 H. 4. f. 13 14. And moreover it is accorded in the same Parliament that likewise it be done in time to come in case like By which Petition and Act it is most apparent 1. That the King and Lords have the sole power of judging and punishing the breaches of Privilege of Parliament by batteries wounding or imprisonment and that both in the cases of Knights Citizens and Burgesses and of their menial seruants in such and the like cases 2ly That this Act gives the Commons no power at all to punish any man for breach of privilege in like case but only prescribes a certain remedy for time to come by imprisonment action double damages fine and ransom at the kings pleasure in the Kings Bench not Commons House or Parliament who are not fit to be troubled with such particular cases of privileges which would interrupt the more publike affairs Hence THE KING willing to provide for the ease and tranquillity of them that came to his Parliaments and Councils by his commandment hath ordained and established upon the Commons Petition by the Statute of 11 H. 6. c. 13. That the self same remedy proceeding damages and punishment shall be had in the Kings Bench not Commons House or Parliament as was prescribed in 5 H. 4. c. 6. against any person that shall doe any assault or affray to any Lord Spiritual or Temporal Knight of the Shire Citizen or Burgesse coming to the Kings Parliament or Council by his command How then the Commons can judge or determine such violation of privileges now against these Statutes and presidents and create themselves Judges of them transcends both my Law and reason In the Parliament of 7 H. 4. as I find in a special note though not in the Parliament Roll Sir John Tibetot the Speaker prayed que plest le Roy Seigniors That it would please THE KING AND LORDS that Robert Clifford companion of Richard Chiderough chosen knights for the County of Kent might appear for them both and doe all in both their names as if both of them were present in Parliament which the king and Lords assented to In the Parliaments of 8 H. 4. n. 83. 139. and of 11 H. 4. n. 54. Upon Petitions and complaints of the Commons to the king and Lords there were two Statutes made to prevent the abuses and false retorns of Sherifs touching the Elections of knights of Shires to inflict penalties on them by a Law which formerly were arbitrary at the kings and Lords discretion 7 H. 4. c. 15. and 11 H. 4. c. 1. The penalty inflicted by these Acts on the Sherif for a false return contrary to these Acts is only 100 l. fine to the king and such undue retorns are from thenceforth to be examined and tryed not by the Commons alone by information without Oath as now but by the Justices assigned to take assizes and that by Enquest and due examination upon trial before the said Justices which is likewise afterwards ratified by the Statutes of 6 H. 6. c. 4. 8 H. 6. c. 7. 32 H. 6. c. 15. wherof if the Sherif be found guilty he shall forfeit 100 l. to the king and the knights of Counties unduly returned shall lose their wages of the Parliament of old time accustoned not be turned out by a Committee of Privileges and others chosen in their places by the Commons Order as now And the Statutes of 1 H. 5. c 1. 6 H. 6. c. 4. 8 H. 6. c. 7. 12 H. 6. c. 2. 32 H. 6.15 touching elections of knights Citizens and Burgesses made since the former do not alter this Law nor give the House of Commons the least power or authority to judge or determin the legality or illegality of any elections but leave this to the King and Lords to redress as at first before their making and give the knights duly chosen but not returned 100 l. damages against the Sherif and Citizens and Burgesses 40 l. against Mayors and Baylifs who make false returns by way of action of Debt in the kings Courts at Westminster where the parties must sue for relief or in the Starchamber before the Kings Lords and Council as in Bronkers case Trin. 1. Eliz. not in the Commons house as these Statutes and presidents in our Law-books Dyer f. 113.168 Plowden f. 118. to 131. Old Book of Eniries f. 446 447. resolve How then the Commons are now becom sole Judges of all false returns and elections and that per legem et consuetudinem Parliamenti against all these Acts and presidents let Sir Edward Cooke and others resolve me and the intelligent when they are able not by the objected late arbitrary presidents which are of no value but by antient usage and Law of our Parliaments and solid reason which cannot be produced for to justifie these late Innovations and extravagances It is most true that in the cases of undue elections and breaches of privilege of the Commons house Members or Servants the King and Lords were antiently sole Judges not the Commons in any one case and that upon the Commons own Petitions as the premises evidence and I shall fully manifest by these ensuing punctual presidents In the Parliament of 8 H. 6. n. 39. The Commons petitioned the King for a Law to be made to prevent the manifold tumults uproars at and disorders in the election of knights of the shire by the vulgar rabble and meaner sort of people of small or no estate most busie and tumultuous in them having then a voice that the King by advice and assent of the Lords Spiritual and Temporal would seclude all from having voices at such elections for the future but freeholders who held 40 s. freehold by the year above all reprisals more than 40 l. a year now or upwards Which the King and Lords assented to and the Statute of 8 H. 6. c. 7. was hereupon made agreeable to this petition with that of 10 H. 6 c. 2. by like Petition in pursuance of it In this very Parliament of 8 H. 6. rot parl n. 57. One William Lake servant to William Mildred a Burgess of London was taken in execution for a Debt and committed Prisoner to the Fleet contrary to the privilege of the Commons house whereupon the Commons petitioned the King that by the advice and assent of the Lords Spiritual and Temporal at the special request of the Commons he might be enlarged which the King and Lords assenting unto gave order for his release and authorized the Chancellor to appoint certain Commissioners to take him again in Execution after the Parliament ended The Commons not then claiming the least power
House it self without any report at all of their proceedings to the House authorizing Committees to secure imprison close imprison cashire banish condemn execute many persons sequester confiscate sell dispose their Inheritances Offices Lands Tenements Benefices real and personal estates to deprive them of their callings professions to search and break up their houses by Soldiers and others without any legal sworn Officers day and night to seize their Letters Papers Horses Arms Plate Money yea debts in other mens hands at pleasure to indemnifie and stay their legal actions sutes Judgements at Law and null their executions at their pleasures yea to commit them till they released all sutes actions Judgements and paid costs and damages to those they justly sued and recovered against to adde affliction to affliction and cruelty oppression to injustice These are the bitter fruits of Commons usurped judicature whereof there are thousands of most sad presidents which may hereafter be objected to prove the sole Power of Judicature to reside of right not in the K. or House of Lords but in the Commons House alone and every of their Committees especially for Examinations Plundered Ministers Sequestrations Indempnity Haberdashers and Goldsmiths Halls Privileges sales of Delinquents the Kings Queens Princes Lands and Estates Excise the Army Navy and the like yea in their new created High Courts of Justice who have acted as absolute arbitrary unlimited lawlesse Courts of justice in the highest degree to the subversion destruction of the antient Liberties Freeholds Properties Great Charters and fundamental Laws of the Nation in general and of thousands of the highest lowest degree of English Freemen in particular with as much ground of reason Warrant from the many late Presidents of this Nature as these here objected to prove a soâ—e right of â—udicature in the Commons House in cases of undue elections retorns misdemeanors privileges relating to their Members and their seruants Which strang exorbitant Presidents and Proceedings if they should be made Patterns for future Parliaments and Committees I shall desire all sober minded men to consider of the dangerous consequences of them thus notably expressed by the late King in his Answer concerning the Ordinance for imposing and levying the 20th part of mens estutes 29 November 1642. After this Ordinance and Declaration t is not in any sober mans power to believe himself worth any thing or that there is such a thing as Law Liberty Property left in England under the jurisdiction of these men and the same power that robs them now of the twentieth part of their estates hath by that but made a claim and entituled it self to the other nineteen whne it shall be thought fit to hasten the general ruine Sure if the minds of all men be not stubbornly prepared for servitude they will look on this Ordinance as the greatest prodigie of Arbitrary power and tyranny that any age hath brought forth in any Kingdom other grievances and the greatest have been conceived intollerable rather by the logick and consequence than by the pressure it self this at once sweeps away all that the wisdom and justice of Parliaments have provided for them Is their property in their estates so carefully looked to by their ancestors and so amply established by Us against any possibility of Invasion from the Crown which makes the meanest Subject as much a Lord of his own as the greatest Peer to be valued or considered here is a twentieth part of every mans estate or so much more as four men will please to call the twentieth part taken away at once and yet a power left to take a twentieth still of that which remains and this to be levied by such circumstances of severity as no Act of Parliament ever consented too Is their liberty which distinguishes subjects from slaves and in which this freeborn Nation hath the advantage of all Christendom dear to them they shall not only be imprisoned in such places of this kingdom a latitude of judgement no Court can challenge to it self in any cases but for so long time as the Committee of the House of Commons for Examination shall appoint and Order the House of Commons it self having never assumed or in the least degree pretended to a power of Judicature having no more authority to administer an Oath the only way to discover and find out the truth of facts than to cut off the heads of any our Subjects and this Committee being so far from being a part of the Parliament that it is destructive to the whole by usurping to it self all the power of King Lords and Commons All who know any thing of Parliament know that a Committee of either House ought not by Law to publish their own results neither are their conclusions of any force without the confirmation of the House which hath the same power of controling them as if the matter had never been debated but that any Committee should be so contracted as this of examination a stile no Committee ever bore before this Parliament as to exclude the Members of the House who are equally trusted by their Country from being present at the Counsels is so monstrous to the privileges of Parliament that it is no more in the power of any man to give up that freedom than of himself to order that from that time the place for which he serves shall never more send a Knight or Burgesse to the Parliament and in truth is no lesse than to alter the whole frame of government to pull up Parliaments by the roots and to commit the lives liberties and estates of all the people of England to the arbitrary power of a few unqualified persons who shall dispose thereof according to their discretion without account to any rule or authority whatsoever Are their friends their wives and children the greatest blessings of peace and comforts of life pretious to them would their penury and imprisonments be lesse grievous by those cordials they shall be divorced from them banished and shall no longer remain within the Cities of London and Westminster the Suburbs and the Counties adjacent and how far those adjacent Counties shall extend no man knows The 3 sort of Presidents and Objections are such as Lilburn and Overton insist on to prove That the King and Lords have no power at all to judge or censure Commoners in our Parliament The only Record they insist on is the Lords own Protestation in 4 E. 3. n. 2. 6. in the case of Sir Simon Bareford which because I have already fully answered p. 323 324 325. and cleared by sundry subsequent presidents and there being no one president in any Parliament since to contradict it I shall wholly pretermit and proceed to their objections which are only two The first and principall objections whereon they most insist and rely is the Statute of Magna Charta chap. 29. That no Free-man shall be imprisoned outlawed exiled or any other may destroyed Nor we shall not passe
Monarchy Royalty Principality Nobility yea Titles of Honour and Nobility as Kings Princes Dukes Lords c. are of Divine institution Col. 1.16 Rom. 13.1 2. Eph. 3.10 yea as antient almost as the world it self universally received approved among all Nations whatsoever under heaven and honoured with special privileges as not only all eminent Authors and experience manifest but these ensuing Scripture Texts Gen. 12.15 c. 14. â— to 10. c. 17.6.16 c. 20.2 c. 21 22 23. c. 25.16 c. 26.1.8.26.26 c. 36.15 16 17 18 29 30 31 to 43. c. 9.1 2. c. 41.40 to 47. c. 47.22 26. Exod. 1.8 Numb 20.14 c. c. 21.1 18 21 33. c. 22.7.10.14 15 40. c. 23.17 c. 2 3 10. c. 16.2 c. 27.2 c. 32.2 Deut. 17.14.15 16. Josh 1.16 17 18. c. 5.1 c. 5.1 c. 8 9 10 11 12. Judg. 9.6 18. 1 Sam. 8.5 9. 2 Sam. 11.2 1 Kin 4.34 c. 10.15 23 29. c. 20.19 c. 23.22 Iob 3.14 c. 36.7 Psal 2.2.10 Psal 62.12.14.29 Ps 72.10 11. Ps 102.15 Ps 136.17 18. Ps 138.4 Prov. 8.15 16. Prov. 30.31 Eccl. 10.16 17. Judg. 3.5 c. 16.8 1 Sam. 5.11 c. 29.2.6 7. Jer. 25.18 to 27. Dan. 4.36 c. 5.9 10 13. c. 6.27 Mat. 8.9 Mar. 6.21 c. 10.42 1 Cor. 8.5 Rom. 13.1 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 Levellers and Lilburnists to consider and study with the others forecited it will be a meer folly and madnesse in any man to prove Antipodes to this institution of God Nature Nations to run quite contrary to all men and to level the head neck shoulders to the feet the tallest Cedars to the lowest Shrubs the roof of every building to the foundation stones the Sun Moon Stars Heavens to the very Earth 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 Powers for there is no power but of God the powers that be are ordained of God whosoever therefore resisteth much more oppugneth abolisheth the Power resisteth oppugneth abolisheth THE ORDINANCE OF GOD. and they that resist oppugne or endeavour to abolish these powers shall receive to themselves DAMNATION for Rulers are not a terrour to good works but to the evil wherefore YE MUST NEEDS BE SUBJECT NOT ONLY FOR WRATH but likewise 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 just higher Powers theâ—ues tribute to whom tribute custom to whom custom fear to whom fear HONOUR to whom HONOUR IS DUE which Saint Peter likewise seconds almost in the self 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 Judicatory Privileges of the Right Honourable House of Peers much lesse to Revile and Libel against their lawfull power persons Judicature as now you doe to the infinite Scandal of your Schismatical faction and Religion it self which you professe only in shew but deny in deeds and practice I shall close up this Plea with these ensuing Presidents of Power given by Act of Parliament to the Lords of the Kings Council to answer those Petitions and redresse those grievances which were not answered nor redressed sitting the Parliament after the Parliaments themselves were ended and that at the Commons special requests Parl. 15 H. 6. n. 33. Iâ—eâ— lavantdir 27 iour de Marcz un auâ—â—e petition fuist baillez a nostre Seignior le Roy en mesme le Parlement per les Comunes dicel le tenour de quell petition ey eâ—suitâ— Please au Roi nostro Soverayn Seignior considerer comet plusours petitions ount estez baillez et exhibitez a vestre tresnoble haâ—tesse par les Comunes de cest present Parliament pur ent avoir covenable remedie et unquore ment determinâ—z d'ordenier per advis des Seigniors Esperituelx et temporelx assent des Comunes avantaitz que les ditz petitions purront estre deliveres a les Seigniors de vestre tressage Counseill lez queâ—x appellez a eux les Justices et autres gentz aprisez en vâ—stre ley si besaigne y foit aiant poair par auctoritee du dit Parlement pâ—r entre cy et la fest del Nativite de Seint Johan Baptiste prouohein avenir doier et terminer les dites petitions et que Ycelle ensi terminez del advis et assent suis ditz puâ—runi estre enactez enrollez et mys de Recorde de mesme vestre Parlement La quell petition lev en mesme le Parlement et entenditz del advis et assentdes Seigniors Espirituelx temporelx en le die Parlement adonqes esteantz fuit restonduz a icell en manere ensuant Le Roi le voet Et postea videlicet vicessimo secâ—ndo die Junii tunc proxime sequenti omnes et singulae Petitiones quae Domino nostro Regi per Comunes Parliamenti praedicti pro congruo remedio inde auctoritate ejusdem Parliamenti habend libertatae et exhibitae minimeque ante dissolutionnem Parliamenti praedicti determinatae fuerunt certis Dominis de Consilio Regis subscriptis videlicet carissimo Avunculo Regis Humfrido Duci Gloucestriae ac venerabilibus patribus Johanni Archiepiscopo Ebor. Johanni Bathon et Wellen Cancellario Angliae Willielmo Lincoln Episcopo necnon et Radulpho Cromwell Militi Thesaur Angl. Waltero Hungerford Militi et Magistro Willielmo Lyndwode Custodi privati figilli Dom. Dom. Regis apud Westm. in Camera stellata preatextu auctoritatis praedictae aexhibitae fuerunt et libertatae qui quidem Domini appellatis sibi prius Justiciariis ac aliis peritis in lege tam communes quam spirituales Petitiones subscript de petitionibus antedictis coram eos legi fecerunt easque auctoritate praed in forma qua in indorsamento earundem Petitionum continetur determinaverunt quarum quidem petitionum tenores una cum responsionibus earundem inferius hic sequuntur The like was enacted and done in the Parliaments of 1 H. 6. n. 21. 4 H. 6. n. 21. 8 H. 6. n. 45. 8 H. 6. n. 69. Since then the Lords at the Commons request were thus auâ—horized to be Judges Answerers Reformers of their Petitions and Grievances in Parliament which could not be there answered redressed during the Parliaments sitting even after those Parliaments determined much more must they be the only proper Judges Answerers and Redressers of them in our Parliaments whiles they continued sitting and those who are proper Judges of their Petitions and Estates in Parliament must by the self-same reason be admitted to be the proper Iudges of their persons likewise in all cases proper for Parliamentary Conusance maugre all pretences to the contrary A Supplement to the
Writs to divers Officers Governours and Ministers of divers other Citees and to many Shires and Burroughs of the seid Realm to make fals untrue and injust proclamations against our seid Soveraign and Liege Lord K. Ed. the 4th by the name of Ed. late E. of March to provoke and excite his destruction And also by his Letters signed with his hand directed unto the seid Dukes of Excester and Somerset and other Lords refused and denied to keep and observe the seid accord convention and agreement and by the same writing falsifying his promise departed from the same Convention and accord afore either the same our Soveraign Lord or the seid noble Prince his Fader any thing did or attempted to the contrary of the same convention and concord for their partie Be it declared and juged by the seid advis assent and authorite the premises considered that the seid Usurper Henry late called Henry the sixth agenst good faith troth conscience and his honour brake the seid Convention and concord and departed therefrom of wilfull malice long afore the seid fourth day of March as by the matters afore declared it appeareth sufficiently And that the breche thereof on his partie discharged our seid Soveraign Lord of all things that should or might charge him to the keeping thereof in any Article or point after the seid breche And that he was then at his freedom and liberty to use his said right and title of the seid Crownes and to enter into the exercise thereof and of the Royal power dignite and preheminence longing thereunto as he lawfully did in manere and fourm above specified the seid convention and concord and the Acte thereupon made or any thing therein conteined notwithstanding And over this it be declared and juged by the seid advis assent and authorite that the seid agreement concord and Act in all things which been in any wise repugnant or contrary to the seid right title entree state seasen and possession of our Soveraign Lord King Edward the fourth in and to the Crown Royal estate dignite and Lordship above said be void and of no force ne effect And that it be Ordeyned and stablished by the seid assent advis and authorite that every person having any parcel of the seid Castles Manors Lands Honours tenements rents services possessions or hereditaments aboveseid the which were given in exchange or in recompence of or for any other Manors Castles lands tenements rents advowsons fee-farms reversions or any other possessions or enheritaments given to the seid Henry late Earl of Derby to the seid Henry his son late called King Henry the fifth or to the seid Henry his son late called King Henry the sixth or to any other person or persones to or for their or any of their use at their or any of their desire or to perform execute their or any of their wille mowe entre And that they and their heirs and successors entre into the same Manors Castles Lands tenements rents services possessions advowsons or hereditaments so given And them have hold keep joy occupy and inherit of like estate as the giver or givers thereof had them at the time of the gift thereof made though it be so that in any of the Letters Patents or gifts made of any of the premises no mention be made of any recompence or eschange Qua quidem petitione in Parliamento praedicto lecta audita plenius intellecta de avisamento assensu Dominorum Spiritualium Temporalium in eodem Parliam existen ad requisitionem Communitatis praedictae respondebatur eidem modo forma hic Inferius annotatis The King by the advice and assent of the Lords Spiritual and Temporal in this present Parliament assembled at the request of the Commyns being in the same agreeth and assenteth to this Petition and it accepteth with certain moderations provisions and exceptions by his Highness thereupon made and in schedules written and in the same Parliament delivered the tenours of which hereunder follow c. Convenit cum Recordo This Judgement censure repeal in full Parliament of the deposition and proceeding against King Richard the 2. upon the Commons own Petition by this Act never yet reversed as most wicked treasonable unrighteous against Gods Laws and Mans crying for vengeance in Gods hearing in heaven and exemplarily punished upon the whole kingdom Nation and Henry the 4. his posterity on earth with the sad intestine warres miseries that attended it are sufficient arguments of its unlawfulness detestableness against all those who deem it just or allege it for a president to justifie their extravagances of a more execrable and transcendent Nature 16ly It is very observable that Roger Mortimer Earl of March who had the chief hand in deposing murthering King Edward the 2. after he was deposed was in the Parliament of 4 E. 3. condemned and executed for it as a Traytor without any legal trial all his lands confiscated and Queen Isabel her self who concurred with him like to be questioned for her life and abridged in her maintenance Moreover King Richard the 2. Granchild and next heir to King Edward the 3. who imprisoned deposed and invaded his Fathers throne though somewhat against his will was imprisoned deposed proceeded against in the self same manner as Edw. the 2. was by his very president and soon after murdered like as Edw. the 2. was by King Henry the 4. After which king Henry the 4. his Granchild Henry the 6. was also in the self same manner imprisoned deposed attainted of high Treason with his Queen and Adherents in the Parliament of 1 Edw. 4. n. 8. to 33. and at last murdered by Edw. the 4. his procurement to secure the Crown to himself and his Posterity Yet no sooner was King Edw. the 4. dead but his own Brother Richard Duke of Gloucester who by his instigation murdered King Henry the 6. with his own hands procuring himselâ— to be Protector of his son King Edw. the 5. then young getting his Brother and him into his custody by treachery perjury and hypocrisie caused them both to be barbarously murdered to set the Crown on his own head which he most ambitiously aspired after yet seemed unwilling to embrace till enforced to accept it by a Petition and Declaration drawn up by his own Instruments presented to him in the name of the Lords Spiritual and Temporal and Commons of the Realm of England wherein he branded his Brother king Edw. the fourth his marriage as illegal and his issue as illegitimate aspersed his Life and Government as one by whom the Laws of God of Gods Church of the Land and of nature and also the laudable Customs and Liberties of England wherein every English man is inheritor were broken subverted contemned against all reason and justice So that the Land was ruled by self-will and pleasure fear and dread all manner of Equity and Law laid apart and despised so that no man was sure of
should be holden once every year or more often if need be to redress divers mischiefs and grievances which daily happen especially delayes in Judgements and sutes at Law through difficulty or diversity of Opinions among the Judges To prevent which the Statute of 14 E. 3. c. 5. enacts that from henceforth at every Parliament shall be chosen a Prelate two Earls and two Barons which shall have Commission and power of the King to hear by Petition delivered to them the complaints of them that will complain of such delayes and grievances and to cause the records of such Judgements to be brought before them and to hear the cause and reasons of such delayes and by the assistance and advice of the Chancellor Treasurer Justices of both Benches and as many other of the Kings Council as shall seem convenient shall proceed to take a good award and make a good judgement therein And that the Judges shall proceed hastily to give Judgement according to their determination And in case it seemeth to them the difficulty be so great that it may not well be determined without the assent of the Parliament that the said Prelate Earls and Barons shall present the tenor or tenors of the said record or cause to the next Parliament and there shall be a final accord taken what judgement ought to be given in his case And according to this award shall be commanded to the Judges before whom the plea did depend that they shall proceed to give Judgement without delay And to begin to give remedy upon this Ordinance it was assented that a Commission and power be made to the Archbishop of Canterbury the Earls of Arundel and Huntington the Lord of Wake and the Lord Raufe Basset to endure till the next Parliament After which I find this Commission made in pursuance of this Ordinance Edwardus Dei gratia c. authorizing the Bishop of Chichester the Earls of Huntingdon and Devonshire and Tho. Wake of Lidell and Thomas de Berkley Barons assigned to hear querelas omnium qui se de gravaminibus dilationibus sibi factis coram Iustic et aliis conqueri voluerint per avisamentum Cancell Thes Iustic de atroque Banco aliis dâ— Consilio Regis according to the Ordinance made in Parliament 14 Ed. 3. c. 5. that Unus Praelatus Duo Comites et Duo Barones should have Commission and power to hear and determine such complaints Test Rege apud Westm nono die Iunii There is this Petition of the Commons to the King for declaring Treasons in 25 E. 3. Rot. Parl. n. 17. Item come les Iustices nostre Seignior le Roy assignez en diversâ—es Countees ajuggent les gentz que sont empeschez devant eux come Traiteurs pur diverses Causes desconues a la Comune estre Treason que please a nostre Seignior le Roy per son Counseâ—l eâ— per les Grantz et sâ—ges de la terre declarer les pointz de Treason en cest present Parlament Quant aâ—la Petition touchant Treason nostre Seignior le Roy ad Fait declarer les Articles de Y celle en maneâ— que ensuit as in the Statute of 25 E. 3. c. â— By which Petition Act and the like Petition in 21 E. 3. n. 15. it is apparent That the Right of declaring Judging what is High Treason in Parliament belongs originally to the King himself by the advise of his Councel Great men and Sages of the Land and not unto the Commons House at whose request the KING then made a Declaration of the Articles of Treason as in this Statute by his Nobles Councils and Iudges advice Therefore the Declaration of all other Treasons in particular cases not within this Statute belongs wholly to the King Lords Council and Judges in the Lords House not to the Commons alone or joyntly with them within the later branch of this Act as well as the Treasons within the body thereof viz. Because that many other like cases of Treason may happen in time to come which a man cannot imagin nor declare at this present time it is accorded that if any other case supposed Treason which is not before specified shall happen de novel before any Iustice the Iustice shall demurâ— without going to Iudgement of the Treason tanque per devant le ROY EN SON PARLEMENT soit le case monstre et declare de que leceo doit estre a jugge Treason ou autre Felony Against the Opinion of Sir Edward Cooks 3 Institutes p. 22. The Commons having no power at all to declare and judge what shall be Treason in such new particular cases but only when a New Treason is made or declared for the future by Bill or Act of Parliament wherein their concurrence is necessary as in all new Acts concerning Treasons since 25 E. 3. as is evident by Mr. Sr. Iohns Argument at Law this very last Parliament at the Attainder of Thomas Earl of Strafford and Mr. Samuel Browns Argument at the Lords House Bar to prove and satisfie the Lords House that he and Archbishop Laud were guilty of High Treason upon the Articles of their several Impeachments exhibited and proved against them of which the Lords and King alone were the proper Iudges but the Commons only their Impeachers and Prosecutors in the Iudicial way of Parliamentary Proceedings as I have formerly evidenced Therefore all the late Votes knacks Declarations of the Commons House alone before or without the Kings House of Lords Declarations Resolutions of sundry things to be high Treason and divers persons to be Traytors upon bare informations suggestions though not within the Letter of 25 E. 3. c. 2. are but meer illegal innovations extravagancies yea Nullities in Law fit to be eternally exploded especially by Lawyers the chiefest Innovators Promoters of them rather out of ignorance or rashnesse than Prudence Law or solid Iudgement for which they can produce no presidents in former ages In the year 1392. the 15 of King Rich. the 2. we have this memorable President of the Lords Iudicature together with the King assembled in a Great Councel without the Commons in the case of the Mayor Sherifs Citizens and City of London thus related by Walsingham at large Misit Rex ad Cives Londoniarum petens ab eis mutuo mille libras cui procaciter et ultra quam decuit restiterunt Sed quendam Lumbardom volentem accommodare regi dictam summam male tractaveâ—unt veâ—beraverunt er paulominus occiderunt Quae cum Rex â—udisset iâ—aâ—us est valde et convocaas omnes regnipene Majorâ—s apperuit proterviam civium Londoniarum et de praesumptione conqueritur eorundem Qui omnes infesti Civibus propter diversas causas consulunt ut reprimatur citius eorum insolentia et superbia destruatur Eranc quippe tunc inter omnes fere nationes gentium clarissimi arrogantissimi et avarissimi ac male creduli in deum traditiones avitas Lolardorum sustentatores