confirmed by the Petition of Right in the 3. year of this King Now for remedy against any man that will infringe this Charter to the injury of any free-man that ought to have benefit of it the party grieved may have an Action vpon the great Charter against the party offending as was brought against the Prior of Oswin P. 2. H. 8. Rot. 538. in Banco Regis and we find in the Register-Book of witnesses fol. 64. a Writ directed to the Sheriffe Adcapiend impugnatores Juris Regis ad ducendum cos ad Gaolam de Newgate to apprehend the opposers of the Kings Charter and to bring them to the Goal of Newgate or the party grieved may indict the Offendor at the Kings Suit for going contra formam Magnae Chartae whereof we find a President in Sheffields case Pasch 3. H. 8. B. R. Or the party grieved may bring his Writ de Odio Astutia de homine Replegiando or Habeas Corpus as appeares by the Register f. 77. and by the Statute of Wesim 2. c. 29. and by the Statute of Glouc. c. 9. as his case shall require Having thus dissected the severall branches of this Great Charter which most eminently concern our publike liberty the birth-right of the free born subjects of England and stated the question thereof We will now with all due regard to the house of Peers examine that judgment or sentece pronounced against that impregnable Bulwark of the common-liberty Lieutenant Col. John Lilburn and the proceedings leading thereunto by the Rules of this lawful judgment or law of the land mentioned in the great Charter professing that as we will be tender not willing to derogate at all from any lawful power jurisdiction or priviledge of that honourable house so we will be as careful in preserving and maintaining our liberties swerving neither on the one side nor on the other from the true narrative of the fact nor the literal declaration of the order sentence as it hath been represented unto us And first we shal shew out of what fountain all the troubles of this worthy Gentleman have sprung which is no other then from his fidelity and love to his Country they have been all occasioned by his prosecution of Col. Edw. King upon certain Articles exhibited against this Colonel to the honourable house of Commons in Aug. 1644. which yet hang there undetermined and which charge the said Colonel with disloyalty infidelity treachery and breach of trust to the Parliament to whom he was a sworn servant and entertained in their pay To prevent this Gentlemans prosecution Col. King did by undue meanes cause him to bee imprisoned July 19. 1645. where being removed to Newgate he remained till the 14. of March 1645. upon which day upon Mr. Recorders motion in the house of Commons hee was enlarged there being nothing objected against him and was by Col. King afterwards caused to be arrested April 14. 1646. as he was going to prosecute and pursue this Colonell for the Publike good and for matters contained in those Articles and to follow his other businesse depending in Parliament For Interest Reipublice ut puniantur rei ne per omissionem unius multi atrociora perpetrent slagitia as Cicero saith It is profitable for the Common-wealth that guilty persons bee punished least by omission of the punishment of one many men by that ill example may be encouraged to commit more heinous offences This Arrest was illegal and a breach of priviledge of Parliament to the house of Commons who were originally possessed of the Cause for all suitors in any Court of Justice at Westrn ought to have the protection and priviledge of that Court where they sue against any that shall arrest them in any other Court for the same matters Eundo morando rediendo which is going thither staying there returning homeward from their prosecution as by 27. H 6. Fitzh pr. 4. and divers other Bookes appears and being put to plead by this unjust provocation to that action he wrote that letter or booke to Mr. Justice Reeve the 6. of June 1646. whereat the great offence is taken and upon which his grand charge was grounded the proceeding was very quick for the 10. of Iune there was a Warrant directed to the Gentleman-Usher attending the Lords house or his Deputy from the Lords to summon him to appeare before their Lordships the next day being the 11. he was summoned and the same day he appeared before the Lords Bar and being brought to the Bar was asked whether he wrote that letter or booke to Iustice Reeve here is an examination ore tenus not usual in Parliament but frequent in Star-Chamber and being earnestly prest in it the same 11. day of Iune he delivered in a paper containing his plea and defence whereupon the same day he was committed by their Lordships prisoner to Newgate for delivering in his plea and defence which they in their Warrant call a scandalous and contemptuous paper being in truth but a recital and declaration of the Lawes Statutes of England that made for his defence and a declaratory of the liberties of all the Commons of England which by law they ought to enjoy and by nature is their proper and free birth-right and the 16. of the same moneth he presented his Petition to the honourable house of Commons against their Lordships proceedings being in the nature of an Appeale to the Commons as his proper and onely Iudges The 22. of June the Lords sent an Order to the Keeper of Newgate to bring Mr. Lilburn againe to their Bar the next day because he refused to kneel at their Barre was the next day being the 23. of June committed close prisoner to Newgate and not permitted to have Pen Ink or Paper and none to have accesse to him in any kind but only his Keeper untill that Court should take further order Where he remained in this condition till the Tenth day of Iuly 1646. which day Serjeant Nathaniel Finch delivered into the said house of Lords certain Articles with certain Bookes and Papers annexed against the said Lieutenant-Colonel JOHN LILBVRN which you have word for word here printed July the tenth 1646. The Charge against Lieutenant-Colonel JOHN LILBVRN as followeth ARTICLES Exhibited before the Lords in Parlia-ment assembled by Nathanael Finch Knight and one of his Majesties Ser-geants at Law against Lieu. Colonell John Lilburne for high Crimes and Misdemeanors done and committed by him I. VVHereas rhe Right Honorable Edward Earle of Manchester by the space of divers yeares last past hath been and yet is one of the Peeres of this Realm And where as the said Earle was by Ordinance of Parliament appointed Generall of divers Forces raised by the Parliament the said Iohn Lilburne intending to scandalize and dishonour the said Earle and to raise discord between the said Earle and other the subjects of this Realm He the said Iohn Lilburne in a certain Book hereunto annexed and
try me or any Commoner whatsoever in any criminall cause either for life limb liberty or estate But contrary hereunto as incroachers and usurpers upon my freedomes and liberties they lately and illegally endeavoured to try me a Commoner at their Barre For which I under my hand and seale protested to their faces against them as violent and illegall incroachers upon the Rights and Liberties of me and all the Commons of England a copy of which c. I herewith in print send you And at their Barre I openly appealed to my competent proper legall Tryers and Judges the Commons of England assembled in Parliament For which their Lordships did illegally arbitrarily and tyrannically commit me to prison into your custody Which Protestation and Papers and matters therein contained doe falsly and scandalously and maliciously charge the Peeres in Parliament with tyranny usurpation perjury injustice and breach of the great trust in them reposed and are a high breach of the Priviledges of Parliament And are high offences against the Lawes and Statutes of this Kingdome and doe tend to the great scandall of the said Peeres and the authority with which they are intrusted to stir up differences between the said Peeres and other the Subjects of this Realme Natha Finch Vpon which Articles he refusing to hear them read as concerning their proceedings against him to be illegall and that as a Commoner of England they had no jurisdiction over him they proceeded to sentence him as followeth Iuly 10. 1646. JT is to be remembred that the 10. day of Iuly in the 22. Year of the Raign of our Soveraign Lord King Charles Sir Nath. Finch Knight His Majesties Serjeant at Law did deliver in before the Lords assembled in Parliament at VVestminster certain Articles against Lieutenant-Colonell Iohn Lilburn for high Crimes and Misdemeanours done and committed by him together with certain Bookes and Papers thereunto annexed Which Articles aad the said Bookes and Papers thereunto annexed are filed among the Records of Parliament The tenour of which Articles followeth in these words Which Articles being by the command of the Lords then and there assembled in Parliament read It was then and there that is to say the said 10. day of July by their Lordships ordered That the said John Lilburn be brought to the Bar of this House the 11. day of the said July to answer the said Articles That thereupon their Lordships might proceed therein according as to Justice should appertain At which day aforesaid the 11. day of July Anno Dom. 1646. the said John Lilburn according to the said Order was brought before the Peers then assembled and sitting in Parliament to answer the said Articles And the said John Lilburn being thereupon required by the said Peers in Parliament to kneel at the Bar of the said house as is used in such Cases and to hear his said Charge read to the end that he might be inabled to make defence thereunto The said John Lilburn in contempt and scorn of the said high Court did not only refuse to kneel at the said Bar but did also in a contemptuous manner then and there at the open Barre of the said House openly and contemptuously refuse to heare the said Articles read and used divers contemptuous words in high derogation of the Justice Dignity and Power of the said Court And the said Charge being neverthelesse then and there read the said John Lilburn was then and there by the said Lords assembled in Parliament demanded what Answer or Defence he would make thereunto the said Iohn Lilburn persisting in his obstinate and contemptuous behaviour did peremptorily and absolutely refuse to make any Defence or Answer to the said Articles and did then and there in high contempt of the said Court and of the Peers there assembled at the open Bar of the said House of Peers affirme that they were Usurpers and unrighteous Judges and that he would not answer the said Articles and used divers other insolent and contemptuous speeches against their Lordships and that high Court Whereupon the Lords assembled in Parliament taking into their serious consideration the said contemptuous carriage and words of the said John Lilburn to the great affront and contempt of this high and honourable Court and the Justice Authority and Dignity therof It is therefore this present 11. day of Iuly ordered and adjudged by the Lords assembled in Parliament That the said Iohn Lilburn be Fined And the said Iohn Lilburn by the Lords assembled in PARLIAMENT for his said contempt is Fined to the Kings Majesty in the summe of two thousand pounds And it is further ordered and adjudged by the said Lords assembled in Parliament That the said Iohn Lilburn for his said contempts be and stand committed to the Tower of London during the pleasure of the said House And further the said Lords assembled in Parliament taking into consideration the said contemptuous refusall of the said Iohn Lilburn to make any Defence or Answer to the said Articles did declare That the said Iohn Lilburn ought not thereby to escape the Justice of the House But the said Articles and the Offences thereby charged to have been committed by the said Iohn Lilburn ought thereupon to be taken as consessed Wherefore the Lords assembled in Parliament taking the premises into consideration and for that it appeares by the said Articles That the said Iohn Lilburn hath not onely maliciously published severall scandalous and libellous passages of a very high nature against the Peers of Parliament therein particularly named and against the Peerage of this Realm in generall But contrived and contemptuously published and openly at the Barre of the House delivered certain scandalous Papers to the high contempt and scandall of the Dignity Power and Authority of this House All which offences by the peremptory refusall of the said Iohn Lilburn to answer or make any Defence to the said Articles stands confessed by the said Lilburn as they are in the said Articles charged It is therefore the said Day and Year last above-mentioned further ordered and adjudged by the Lords assembled in Parliament upon the whole matter in the said Articles contained I. That the said Iohn Lilburn be Fined to the Kings Majesty in the summe of two thousand pounds II. And that he stand and be imprisoned in the Tower of London by the space of 7. years now next ensuing III. And further that he the said Iohn Lilburn from henceforth stand and be uncapable to bear any Office or Place in Military or in Civill-Government in Church or Common-Wealth during his life Die Sabbathi 11. Julii 1646. ORdered by the Lords in Parliament That Iohn Lilburn being sentenced by this House shall for his high Contempt and Misdemenors done to this High Court according to the said Sentence stand committed to the Tower of London for the space of 7. Years next after the date hereof And that the Lieutenant of the said Tower of London his Deputy or Deputies are to keep
by him contrived and caused to be printed and published intituled The just Mans justification Or A Lettnr by way of Plea in Bar hath falsly and scandalously in certain Passages of the said Book affirmed and published concerning the said Earle of Manchester and his demeanour in his said Office and Imployment And touching the complaint by the said Lilburn alledged to be made by him and others to the said Earle relating to the said Earle as followeth Pa. 2. I complained to the Earle of Manchester thereof being both his Generall and mine And at the same time divers Gentlemen of the Committee of Lincoln as Mr Archer c. having Articles of a very high nature against him pressed my Lord meaning the said Earl to a triall of him at a Councell of warre And at the very same time the Major Aldermen and Town-Clerk of Boston came to Lincoln to my Lord meaning the said Earle with Articles of a superlative nature against King their Governor but could not get my Lord meaning the said Earle to let us enjoy justice at a Councel of War according to all our expectations as of right we ought to have had which at present saved his head upon his shoulders And page 8. and 9. of that Book did affirm these words viz We could not at all prevaile the reason of which I am not able to render unlesse it were that his two Chaplaines Lee and Garter prevailed with the Earle meaning the said Earle of Manchesters two Chaplains Ash and Goode to cast a Clergie-mist over their Lords meaning the said Earles eyes that he should not bee able to see any deformity in Colonell King II. THe said Iohn Lilbure within three moneths last past in a certaine book by him contrived and caused to be printed and published hereunto annexed intituled The Free-mans Freedom vindicated or A true Relation of the cause and manner of Lieu. Colonell Iohn Lilburns present imprisonment in Newgate being thereunto arbitrarily and illegally committed by the House of Peeres June 11. 1646. for his delivering in at their open Barre under his hand and seal his Protestation against their incroaching upon the common liberties of all the Commons of England in endeavouring to try him a Commoner of England in a criminall cause contrary to the expresse tenor and form of the 29 chapter of the great Charter of England And for making his legall and just appeale to his competent proper and legall Tryers and Judges the Commons of England in Parliament assembled did falsly and scandalously in the eighth page of that Book publish and affirm concerning the said Earle of Manchester these false and scandalous words I clearly perceive the hand of Ioab to be in this namely my old back-friend the Earle of Manchester the fountain as I conceive of all my present troubles who would have hanged me for taking a Castle from the Cavaliers in Yorkeshire but is so closely glu'd in in interest to that party that hee protected from justice Colonel King one of his own Officers for his good service in treacherously delivering or betraying Crowland to the Cavaliers and never called nor that I could heare desired to call to account his Officer or Officers that basely cowardly and treacherously betrayed and delivered Lincoln last up to the enemy without striking one stroke or staying till so much as a Troop of Horse or a Trumpetter came to demand it His Lordships head hath stood it seems too long upon his shoulders that makes him he cannot be quiet till Lieu. Generall Cromwels charge against him fully proved in the House of Commons be revived which is of as high a nature I beleeve as ever any charge given in there The Epitomy of which I have by me and his Lordship may live shortly to see it in print by my meanes And the said Iohn Lilburne in the Book and page last mentioned in scandall and dishonour to Henry Earle of Stamford a Peere of this Kingdome and late a Commander of Forces of the Parliament maketh this scandalous expression concerning the said Earle of Stamford viz. And for my Lord of Stamford at present I desire him to remember but one Article made at the delivery of Exceter which it may be may in time coole his furious endeavour to inflame the free people of England III. VVHereas the said Iohn Lilburne upon the 10. day of Iune last past by vertue of the Order of the Peeres assembled in this present Parliament was brought to the Barre of the House of Peeres then sitting in Parliament to answer concerning the said Book in the said first Article mentioned the said Iohn Lilburne falsly and maliciously intending to scandalize and dishonour the Peeres assembled in Parliament and their just rights and authorities did then and there in contempt of the said House of Peeres at the open Barre of the said House the Peeres then sitting in the said House in Parliament openly deliver a certain paper hereunto annexed under his hand and seale intituled The Protestation Plea and Defence of Lieu. Colonell John Lilburne given to the Lords at their Barre the 11. of June 1646. with his appeale to his competent proper and legall Tryers and Judges the Commons of England assembled in Parliament which paper is hereunto annexed and since caused the same to be printed and published In which paper among other scandals therein contained he published and affirmed concerning the Lords in Parliament these words following Viz. Therefore my Lords you being as you are called Peeres meerly made by prerogative and never intrusted of improved by the Commons of England And in another place thereof concerning their Lordships and their proceedings in Parliament did protest and publish these words following I doe here at your open Barre protest against all your present proceedings with me in this pretended criminall cause as unjust and against the tenor and form of the great Charter which all you have sworn inviolably to observe and caused the Commons of England to doe the same And therefore my Lords I doe hereby declare and am resolved as in duty bound to God my selfe countrey and posterity to maintain my legall liberties to the last drop of my blood against all opposers whatsoever having so often in the field c. adventured my life there-for and doe from you and your Barre as incroachers and usurping Judges appeale to the Barre and Tribunall of my competent proper and legall Tryers and Judges the Commons of England assembled in Parliament And in pursuance of his said malicious and illegall practice did afterwards contrive and publish a scandalous and libellous letter hereunto likewise annexed directed to Mr. Wollaston Keeper of Newgate or his Deputy wherein among other things he hath caused to be inserted and published these words concerning the Peeres in Parliament viz. Their Lordships sitting by vertue of Prerogative-patents and not by election or consent of the people have as Magna Charta and other good lawes of the Land tell me nothing to doe to
proved only by witnesses or the Parliament sitting by the Parliament and not by a Jury being matter of Fact tryable by the course of the common-law Neither doe we conceive that this scandall reflects upon that noble Earl â—f it be so as he is a Member of the Lords house but as a Generall of an Army which employment he had as well from the Commons as the Lords and the rather since one of the Commons is as capable as a Peer of the Lords house of such a Command Therefore we conclude as to the matter and manner of proceeding this sentence upon the Lieutenant-Colonell may be taken to be erroneous both concerning the nature of the cause and the jurisdiction of the Court in respect of the Defnedants priviledge not to be judged by the Lords House being a Commoner of England unlesse the Commons had first enquired of the offence and had transmitted it to the Lords House upon a vote made in their House by information or impeachment together with the proofs taken by them in the Cause but especially after an Appeal made to the House of Commons as his proper Judges But we meet with another objection which is that part of this sentence is for words and contempts acted after his summons to the Lords House and at his appearing there one of which was for not kneeling at the Lords Barre for that we conceive that if hee through the tendernesse of Conscience not to offend God by kneeling to any other power did refuse to kneel at their Barre though it be a custome for those that are brought thither as Delinquents so to do We cannot conceive that to bee a contempt but rather an obedience to him 〈◊〉 he ought to obey rather then men As touching the no hearing of his Charge read it was after his Appeal Plea and Defence delivered in which if that were just and now rest to be determined by the honourable House of Commons and by them so adjudged there could be no contempt in that And therefore till his Appeale be determined wee conceive that part of his Sentence might well have been spared As touching the contemptuous words by him uttered against the proceedings of that honourable Court though we cannot excuse it a toto yet a tanto we may in that they were rather words of heat proceeding from him upon deniall of his Plea and Defence which was his appeale to the honourable House of Commons as his proper Judges and rather issuing from him out of a sence of his conceived injury then a spirit of calumny towards their Lordships We are of opinion that in that sence they might have produced a more mild sentence then to have been his utter ruine since by that sentence he is to have 7. yeares imprisonment the age of a man in the eye of the Law and be made incapable of bearing any Office Military or Civill in the Army or Common-Wealth and to be fined 4000. l. which we think is more then he is able to pay wheras by the statute of Magna Charta liber homo non amercietur pro parvo delicto nisi secundum modum illius delicti pro magno delicto secundum magnitudinem illius delicti salvo sibi contenemento suo If his offence were great yet hee ought to be amerced so as his free-hold contenement or countenance may be saved to him and not to be disabled in his Calling or lodged in the Tower during his life where he now remains Having brought this indomitable Champion for our liberties to the Tower of London wee will shew you his entertainment there He was brought by the Warders to the Lieutenant alias dictus Col. Francis West the Gaoler or chiefe Keeper of the Prison of the Tower of London for so his title is in the capacity of receiving and keeping of the Prisoners committed to his charge This Lieutenant or Goaler after some pause upon reading of the Warrant of Commitment sent him to lodge at a Warders house for his further punishment where he is to pay neere 20. s. a weeke for his lodgeing providing himselfe dyet The Lieutenant forbad his Keeper to let any body at first to come to speake with him and forgetting the rule of Gods word whom God hath joyned together let no man separate or keepe asunder upon this pretence that by the Lords sentence and his Warrant he could not keepe that worthy Patriot from informing the people of their liberties which the said Goaler or Lieutenant called writing of scandalous bookes against the Lords unlesse he kept his wife and his friends from him notwithstanding that Lieutenant Collonel Lilburne offered to engage his word to the said Gaoler not to write any word-book or letter either of or concerning both or either House of Parliament or any thing else of publike concernment so he might have his wife and Children and friends admitted to him according to law and right answer was thereupon made by the same Gaoler That unlesse his wife would stay with him and remaine with him as a close prisoner to be kept within the Tower he cold not permit her to come to him to stay with him or speake with him but in the presence of his keeper the first time that ever we heard that the innocent wife was to be imprisoned and punished for the Husbands offence having at that time no warrant to restraine either his wives or friends coming to him but to colour such his illegall uncharitable and unchristianlike dealings he goes to the Lords and procutes order from them as a superstructure upon the former sentence to keepe this worthy Gentlemans wife from him and not to permit her to stay with him or to speake with him but in the presence of his Keeper O horrible and unheard of Cruelty and barbarisme did not God make woman of man that she might be an helper unto him meete for him Gen. 1. 18. did not God ordaine them to be one flesh did not our blessed Saviour say that God from the begining had made them male and female and that after their marriage they are no more twaine but one flesh doth he not command and is it not an ordinance indispensable That what God hath joyned together let no man put asunder Matth. 19 4 5 6. By what power or authority doth this Goaler take upon him to dispense with nay to change the immutable laws of God our maker and of our Saviour and Redeemer If ye have faith in him doth not our blessed Saviour tell the wicked Jews when they tempted him with this questistion Is it lawfull for a man to put away his wife THAT IT WAS NOT LAWFVLL And that Moses suffered the Jewes through the hardnesse of their hâ—arts to put away their wives But from the beginning it was not so If this were hardnesse of heart for a man to put away his wife though with her coÌ„sent how much more and how much greater hardnesse of heart is it that a woman innocent and
the Parliament or any other that sits in the Lords house by Writ Et non ratione nobiliatis can be a tryer of a Lord of the Parliament or challenge this priviledge of tryall in case of Treason Fellony or other capitall offence But a Noble-man of the Parliament shall not have this priviledge either upon an Indictment of Praemunire or upon an Appeale of Fellony at the suit of the party or in any Civill-Action either concerning the right of Lands or of other Possessions or in any personall Action brought by a Common-person against a Lord of the Parliament as appeares unto us by the Bookes of 1. H. 4. f. 1 13. H. 8. f. 12. 10. E. 4. fol. 6. This tryall of Noble-men by their Peers at the Kings Suit is not upon Oath as in the case of common persons for the Peers are not sworn before the Lord Steward before whom this tryall must bee had but they are to be charged by the Lord Steward super fidelitatibus ligeantiis Dom. Regi debitis that is upon their faith and allegeance due to the King and if they acquit the Peer or Noble-man upon whom they passe the Entry is Willelmus Comes E. cateri Antedicti pares instâ—nter super fidelitatibus ligeantiis dicto Dâ—m Regi debitis per praefaruÌ„ SenescalluÌ„ ab inferiori usque ad supremum separatim examinati dicunt quod Wil. Dom. Dacre nox est Culp and so was the Entry in the case of the Lord Dacres 26. H. 8. Spilmans Reports and Cookes Instit 3. part p. 30. If a Noble-man be indicted of Treason Felony or Murder and cannot be found he shall be outlawed by the Coroners of the County and in case of Clergy no Noble-man shall have more priviledge then a common-person where it is not specially provided for them by Act of Parliament as by Stamford pl. Cor. p. 130. is made manifest out of all which we gather that a Nobleman hath this priviledge of tryal as well per lege terra as by this Charter and that anciently legale judicium parium or lawfull tryall of Peers for all manner of persons aswell Noblemen as Commons was vere-dictum duodecim proborum legalium hominum de vicineto a verdict of 12. good and lawfull men of the Neighbour-hood that is of the Commons of England so still remains saving only in this excepted case by the Great Charter which shewes that there can be no legale judicium or lawfull judgment but it must be per legem terrae or according to the Law of the Land which is the other branch of this judgment as to the Commons of England Now to prove that legale judicium parium or lawfull judgment of a mans Peers or Equals is by verdict of 12. men and not otherwise for the word Peers vinvocally signifies both Let us consult both the judgment of Parliaments in this point and the fundamentall lawes of the Land And first for the opinions of Parliaments in this point we finde that by the statute of 25. E. 3. c. 4. None shall be taken by petition or suggestion made to our Lord the King or to his Councell unlesse it be by indictment or presentment of his good and lawfull people of the same neighbour-hood 42. E. 3. c. 3. It is assented and accorded for the good governance of the Commons that no man be put to answer without presentment before Justices or matter of Record or by due processe and Writ originall according to the old law of the Land and if any thing be done froÌ„ henceforth contrary it shall be void in law and holden for errour and to say one word for all there are above 50 statutes now in print and in force that warrant this tryall or legale judicium parium suorum or tryall by a mans Equals or Peers made since the Great Charter in severall cases the citing of which statutes for prolixity we avoid And that this manner of tryall was the old law of the Land wee are here to make it appear that this manner of tryall is according to the law of the Land and that there is none other wherein we are to observe this distinction that this legale judicium or lawfull judgment is two-fold The one is of the matter of Fact The other is of matter of Law That which is of matter of Fact is to be tryed per legale indicium parium or a lawfull tryall of a mans Peers That which is of matter of Law is to be tryed by the Judges or Justices of the Land authorized thereunto by the Kings lawfull Commissions To prove that there is no other lawfull Judgment of our Peeres or Equals As touchiug the matter of Fact we are to examine the foundation of this Common-wealth and the originall constitutions thereof We find that King Alfred having reduced this Kingdome of England into an Entire-Monarchy divided it into 38. Counties and each County into severall Hundred and Mannors The Counties were put under the government of Earles who substituted under them Viscounts or Sheriffes for the quiet government of the people the Hundreds and Mannors subordinately under the severall Lords of them The Sheriffes had two Courts to wit the Sheriffes-Tourn and the County-Court The first for offences against the peace of the Land The latter for entry and determination of civill-causes between party and party In the first indictment or presentment of offences was made per-Enquest that is by Juries In the second the Free-suiters that is men of the neighbor-hood The like was done in the leets or viewes of Frankepledge and Hundred-Courts in the Hundreds The like proceedings was in the Leets and Court-Barons of Mannors in those Courts There was no condemnation or judgment given but by the Enquirie of good and lawfull men of the neighbor-hood This every book of the Law tells us for more particular satisfaction read Horn f. 8. and fore-ward These Courts were formed after the modell of the greater Courts of the Realme the Kings-Bench and Common-pleas where greater jurisdiction was as to the matter to be enquired of but no variation originally in the manner of proceeding only the jurisdiction of the Court of Kings-Bench and Common-Pleas in tryals of actions ad dampnum 40. s. flowed over the whole Kingdome The other Courts were confined to their severall limits and might not exceed 40. s. damages these were the originall Courts of the Kingdome and the legale judicium parium or lawfull judgment of Peers was only tryall by Jury of Equals before this great Charter From which tryals this clause is inserted into it and by an inviolable right of law continues in force even to this day as every free subject of England by experience knowes and as every book of our law proves into us the verdict of the Jury in criminall causes being the judgment of Attainder and in civill causes a condemnation as Stamford pl. Cor. p 44. and ali other bookes prove And to leave every man without
man is to be tryed per legale judicium parium suorum by the lawfull judgment of his Peers which Statute gives the Lords of Parliament a jurisdiction over their Peers which cannot be taken from them and as the Lords have a jurisdiction over their Peers so have the Commons over their Peers viz. all the Commons of England for as Sir Edw Cook 2. part of his Institutes pag. 29. in his Coment upon Magna Charta c. 14. observes that the generall division of persons by the Law of England is either into the Nobility of the Peerage or Lords house or the Commons of the Realm for as every of the Nobles is a Peer to each other though they have severall Names of Dignity as Dukes Marquisses Earles Viscounts and Barons so of the Commons of the Realme each Commoner is a Peer or Equall to another though they be of severall Degrees as Knights Esquites Citizens Gentlemen Yeomen and Rurgesses and this distinction we find likewise in Bracton c. 2. sol 36. and both these Jurisdictions do belong to both Houses naturali equitate by a naturall right or equity as hereafter more plainly will be demonstrated and according to this Jurisdiction have the Commons themselves given judgment upon a Commoner as in the case of Thomas Longe cited by Sir Edward Cooke vbi supra p. 23. and recorded in the Journall Book of the House of Commons 8. Eliz. Onslow Speaker f. 19. and in the case of Arthur Hall 23 Eliz. f. 14. Popham Attorney General Speaker and divers others Now that the Lords and Commons have a joynt Jurisdiction or power of Judicature over both Lords and Commons is manifest by the Judgments given against the Lord Audley at the Parliament held at Yorke Anno 12. 22 Consideratum est per Praelatos Comites Barones communitatem Angliae and in 15. E. 2. the Judgment given against the Spencers both Earles Hugh the Father and Hugh the Son who were adjudged to exile by the Lords and Commons and Sir John Alees adjudged by the Lords and Commons as appeares 42. E. 3. Nu. 20. Rot Parl. and of late time in the cases of Sir Giles Mompesson the Lord Viscount of St. Alban and the Earl of Middlesex in 18. 21. Iacob Regis In all which Judgements the Kings consent was concurrent which gave those Judgments life and efficacy Having thus distinguished the severall and joynt Jurisdiction of both Houses it will bee necessary to shew whence these have sprung and how they are grown It appears by the old Treatise de modo tenendi Parliamentum which was made before the Conquest and presented to the Conquerour who held a Parliament in that forme as appeares by the book of 21. E. 3. f. 60. That both Houses of Parliament sate together and were but in effect one House and so continued long after the Conquest till 5. and 6. E. 3. as appears by the Parliament Rolls of 5. E. 3. Nu. 3. and 6. E. 3. and by the 4. part of Sir Edward Cookes Instit p. 2. and as may be gathered by the Preamble to the Statute of Marlebridge made 52. H. 3. Westm the first 3. E. 1. Westm 2. 13 E. 1 the Statute of Yorke made 12. E. 2. and others which mention that the Prelates Earles Barons and Commonalty of the Realm were called together whereby we may infer that they sate as one House to consult of the weighty affaires of this Kingdom from whence we collect that the Lords had whilest they sate as one House no particular jurisdiction nor the Commons any to themselves alone but their jurisdiction was joynt being mixt of both their powers and communicative to all alike of both Kingdoms and this appeares cleerly by the case of the Lord Audley 12. E. 2. and the cause of the Spencers 15. E. 2. afore cited and by the case of Nicholas Segrave adjudged in Parliament as appears Placit Parliament 33. E. 1. Rot. 33. per Praelatos Comites Barones alios de consilio by the Prelates Earles Barons and others of the Councell that is the Parliament and more plainly by that spoken by Sir Edward Cook 2 part of his Instit p. 50. And though of antient time saith he the Lords and Peers of the Realm used in Parliament to give judgment in case of Treason and Fellony against those that were no Lords of Parliament Yet at the suit of the Lords it was enacted that albeit the Lords and Peers of the Realm as Judges of the Parliament in the presence of the King had taken upon them to give judgment in case of Treason and Fellony of such as were not Peers of the Realm that hereafter no Peers shall be driven to give judgment on any others then on their Peers according to the Law And he cites Rot. Parl. 4. E. 3. Nu. 6. to maintain this assertion of his But to conclude more strongly we find it recorded in 4. E. 3. Rot. 2. and inrolled in Chancery in the cause of Sir Simon de Berisford who was adjudged as an accessary to Roger Mortimer of the murder of King Ed 2. in these very words viz. And it is assented and agreed by our Lord the King and all the Grandees in full Parliament that albeit the said Peers as Judges of Parliament took upon them in the presence of our Lord the King to make and give the said judgment by the assent of the King upon some of them which were not their Peers and that by reason of the murder of their liege Lord and the destruction of him which was so neare of the Blood-Royall and Son of a King that therefore the said Peeres which now are or the Peeres which shall be for the time to come be not bound or charged to give judgment upon others then upon their Peers nor shall do it But let the Peers of the land have power but of that forever they be discharged and acquitted and that the aforesaid judgment now given be not drawn into example or consequence for the time to come by which the said Peeres may be charged hereafter to judge others then their Peers against the Law of the Land if any such case happen which God defend All which afore-mentioned presidents and judgments were made and given before the separation of the two Houses whilest they sate together Out of which we collect and gather that the Lords had no particular jurisdiction to themselves or of themselves before the division separation of the Pouses and that it was against the Law of the Land for the Peers before this separation to judge a Commoner in any case whatsoever Nay that their hands are bound by their assent never to judge any in future which Sir Ed Cork saith was enacted So that joyning the one consideration with the other it is most cleer that the Peers at this day cannot judge a Commoner no not if the King joyn with them especially in case of life or free-hold for in the book of 4 H. 7.