not grounded alwaies upon the positive Laws but upon intervenient accidents arising upon materiall circumstances of time place or other emergent causes which Orders are held by the Sages of the Law agreeable unto equity and Justice although no expresse Law to warrant the same In Chancery many crosse Orders the one to the other in a cause there depending yea almost seeming contradictory yet in Law and conscience justifiable and he that shall disobey those Orders is accounted a rebell unto the Law the King and his royall Government Jurisdiction of Courts title Parliament as appeareth by the Writ of Rebellion usually in those cases issuing and Sir Edward Coke affirmeth this power of Ordinance antiently pertaining to this high Court of Parliament And I know not but they may proceed to definitive Judgement in Causes notwithstanding any thing that hath been formerly spoken The Power of Parliament to proceed unto finall Judgement in case of wilfull absence of any the Judges of this Court paâ—alleld with this power in inferiour Court The Court full in Judgement of the law without those Judges which are wilfully absent if any Members of the Houses who are by Law Judges of this high Court shall refuse to discharge the trust committed unto them as the case now is and wilfully by absence or delinquency make themselves uncapable and unworthy of that great service for then I conceive it cleere that the Court is full in Judgement of Law without them and under favour there is no Law in point but the remaining Judges may proceed by the same authority For to examine a little the course of inferiour Courts of Law if any one or two of the Judges of the Kings Bench or Common Pleas shall obstinately recede from that Court and deny his attendance there for the publike shall not the residue of the Judges transact all matters there depending Certainely they may and further they ought so to doe And although for conveniency or conformity or to the end the Judgement may be the more unquestionable being confirmed by the greater number the weighty matters are agitated and determined in Plena curia for the most part yet I take it cleere in case of absence especially wilfull or obstinate the remaining Court may debate and finally sentence all matters incident to their jurisdiction Indeed in some particular cases the chiefe Justice or Judge hath formerly had the sole power as concerning Writs of Errour viz. that the warrant for the issuing out the Writ of Errour to the Chancery ought to be under the Teste of the chiefe Justice of the Kings Bench No judiciall but ministeriall acts by law transacted solely by any one Judge in inferiour Courts vid. Supâ—a but that Case or any of the like nature I conceive are only ministeriall but if a Writ be once returned in Court and so the Cause there depending no doubt the remaining Judges may judicially heare and determine Now if so in these lower Courts we cannot dis-affirme the same in this eminent Tribunall the Parliament the Court being the moddell and patterne of all other Courts the Gnomon that points out the course of the Sunne the course of Justice and equity to all the other Courts there being no brightnesse or lustre of Justice in inferiour Courts but resides more fully and more aboundantly in that high Court of Parliament So that I conclude the Parliament may make Ordinances Orders give Judgement and Sentence definitively in all matters whatsoever without the Kings personall presence or any of the Members of either Houses their absence being such as is formerly declared and that upon the reason of Law in these rivâ—lets of Justice their latitude of power and the superlative authority considered in themselves and in their course of prâ—ceedings being not so much as intended to be here mentioned but onely by way of comparison or resemblance of the Law in inferiour Courts to make things more conspicuous not any waies to dishonour this Court as if it should emendicare justitiam begge or borrow the rules of Justice from inferiour Courts who arâ— but tanquam ancâ—lle like handmaids to this Lady and Queene of Justice as also it is done ea intentione to informe vulgar capacities per notiora nobis by things even subject unto sence to the end they might if possible be satisfied I should now enter into the proofe of the violation of this priviledge almost forgotten by this digression namely the transacting of matters belonging unto this high Court by the new erect and pretended Parliament at Oxford a greater violation in this particular then if any inferiour Court of Justice in this Kingdome had assumed or arrogated this authority The Assembly at Oxford unwarrantable by law even in their Session much more in their proceedings because this Assembly at Oxford have not so much as any colour of Law to warrant even their Session much lesse their proceedings the matters there trans-acted and adjudged in derogation and dishonour of this high Court being so many and numerous as also the extrajudiciall arraignement of the Votes and proceedings of this Parliament but I thinke it is manifest to all the world and no man ignorant thereof The many and weighty Remonstrances Declarations and Ordinances of this high Court decâ—ared and pronounced null and void at Oxford and elsewhere by Declarations of his Majesty extrajudicially framed Much might be spoken herein with much sorrow and peradventure not without offence therefore I will desist and close up my meditations on this particular protesting nothing but the delivery of the truth with meekenesse and moderation and my soule is full of heavinesse and lamentation that ever so unhappy an occasion should be ministred â—eseeching God if it may stand with his Will and Pleasure to heale all our wounds and to reconcile all differences with peace There is another right of Parliament yet behinde which requires me not to be silent as being of all one of the chiefest by breach of which the Sword is gone through our Land Armies of men have been raised whereby not only violation of Lawes Rights and Justice but even the destruction of all is at hand unlesse God in his mercy prevent it In briefe we have seene great forces raised and maintained by the King without any Law or authority to warrant the same being as I suppose misinformed and unadvised herein The Priviledge or right of Parliament it being directly against the right and power of Parliament which is this That no Armies of men can he raised by the King or any subordinate authority under him but as the positive Law hath prescribed unlesse by consent of Parliament And here peradventure it will be expected I should speake of the Militia of the Kingdome The Milita absolute or generall Vid. infra as being a matter at this time of the highest concernement but I will referre it to a distinct debate by it selfe as you shall perceive hereafter in this discourse
was no proceedings as in Civill in Parliament against any Members thereof in an ordinary course of Justice and therefore this Law was made somewhat to abridge this high priviledge namely in this that any Member offending shall be subject to the censure of that great Court in an ordinary course of Justice which before he was not but in an extraordinary way by Petition or the like in which condition he now stands as to civill actions To this I can give no positive answer but I rather incline to thinke that this Law was rather parcell of the priviledge it selfe or contemporary with it and no subsequent Law and so this collection formerly mentioned nor materiall Also I conceive that if this Law before objected shall be found subsequent to the priviledge of Parliament in this particular which for my part I doe not credit yet before this Act or Law delinquent Members thereof were not exempt from Justice but onely in a positive course of proceeding they were still subject to the censure of that high Court in an arbitrary way and so no Cesser or defect of Justice which were a thing of so honourable a Tribunell not to be imagined Thus you see the wisedome of the Law in the framing of these great priviledges in Criminall matters The Reason and ground of the Priviledge of the Parliament both in Criminall and Civill matters Nota. because both God and man require festinum remedium the offences being exorbitant Justice open and cannot be denyed even in an ordinary Course Also the House of Parliament being first acquainted therewith and their leave obtained Censure may be elsewhere not otherwise in civill actions not so but an utter cessation of necessity of ordinary course of Justice for if otherwise the Parliament would be filled with private Suits and Actions and many of them frivolous the many and weighty affaires of the Kingdome in the meane time neglected To conclude the Parliament you see hath that high Priviledge in Criminall matters communicated to no other Court of Justice The Priviledge of Parliament paralleld with the priviledge of inferiour Court in Civill matters but in Civill Actions there are some foot-steps of this great Priviledge in inferiour Courts In the Common Pleas a Writ of Priviledge or Supercedeas to stay proceedings against any member of that Court and if the parry hath cause of Action he ought to Sue in the Common Pleas parallel this case with the Priviledge of Parliament in Civill Actions you will finde it almost the same The Supersedeas or Writ of Priviledge removeth not the Cause no more is the Cause removed by clayming the priviledge of Parliament but a Cesset processus legis quousq c. If the Party hath cause of Action he must Sue in the Common Pleas Priviledge of Parliament in Civill Actions greater then of inferiour Courts so may he I take it in Parliament by Petition or otherwise as the pleasure of that Court will permit but not in any course of Justice ordinary as he may in the Common Pleas here the priviledge of Parliament exceedeth the priviledge of inferiour Courts Likewise in Common Pleas priviledge for Strangers Eundo redeundo concerning their Suits there and this extends as well to their persons to free them from Arrest as to their goods necessary for their Suit and Charges priviledges of Parliament I take the same I need not use repetition Now to hasten to an end of this the reason why the Law hath given unto this High Court this and many other priviledges is for the publike good to the end that Parliaments which are to the State Tanquam medicus aegro like the Phisitian to a sicke person should not be eluded or frustrated by suggestions of Crimes against any members thereof by the King or any persons whatsoever The very being of Parliaments depend upon the priviledge in Criminall matters being taken away from the service of the Houses tryed elsewhere by inferiour Courts for so they might take away all and consequently make a Parliament what they would and when they would which is a breach of so essentiall a priviledge that even the very being of Parliaments dependeth thereupon His Majesty in one of his Declarations saith Object That the Parliament themselves in the beginning of his Raigne in a Petition unto him presented by both Houses in the case of the Earle of Arundell acknowledged their priviledge not to extend to Treason Felony and the Peace the words are They finde it an undoubted right and constant priviledge of Parliament The priviledge of Parliament in expresse words by themselves presented to the King that no Member of Parliament sitting in the Parliament or within the usuall times of priviledge of Parliament is to be imprisoned or restrained without Order or Sentence of the House unlesse it be for Treason Felony or for refusing to give Sureties for the Peace I have faithfully and truly opened all matters that make any waies against me and so I will God willing throughout this whole Discourse let the Reader impartially judge Sol. Priviledge of the Parliament as large as before notwithstanding the words of this petition Although these words fore-going of this petition be very large and seeme much to abridge this privil dge yet upon true examination they doe not for the words That none shall be imprisoned or restrained c. plainely relate to civill actions or proceedings the words Unlesse in case of Treason c imply they shall be subject to imprisonment or restraint but note the words they doe not say of any inferiour Court but still the priviledge remaineth the same notwithstanding the words of this petition But here it may be objected that 〈◊〉 have left out that which makes most against me viz. these words Without order or sentence of the Houses implying cleerly that in Cases of Criminall the order and Sentence of the House is not requisite Sentence and Order of the Parliament an extraordinary course of Justice upon the words of this petition Nota. but they may be proceeded against without leave But marke the words and then judge it is plaine by their sence and meaning that in civill actions they cannot be proceeded against without sentence and order of Parliament no ordinary course of Justice The order of Parliament upon petition or the like is an extraordinary and Arbitrary course of Justice but in Criminall matters they may be censured without sentence and order of the House that is in an ordinary and positive way of Justice but this must be in the hâ—gh Court of Parliament it selfe and not else-where without their leave and so is the sence of these words to any rationall man well observing There is no power given to inferiour Courts by these words either expresse or implyed Nota. but the priviledge continueth the same it was nothing diminished by the words of this petition Further The positive law in inferiour Courts and the law of
Parliament inconsistent and differing yet both just in their proproper motion Vide postea if we should admit the tryall in inferiour Courts this mischiefe would follow that their Judgements might peradventure be legall yet not just it being lawfull for a man to open his Conscience here so farre without dread or feare in any matter touching the Common-wealth or any particular person in a Parliamentary way which in other Courts would be held a crime and by the positive Lawes of this Kingdome punishable This being so the vio ation of this priviledge rests to be proved and truly I am sorry to enter into the proofe of it it reflecting somewhat upon the Kings most excellent Majesty whose Royall Person I shall ever unfeignedly honour But surely it is the unhappinesse of Kings to be abused by evill Counsell and the errour is not to be imputed to the King but to his Ministers But since I must speake it is Soli lucem inferre to hold a Candle before the Sunne so evident it is it needeth no proofe at all for is not the breach of this priviledge in fresh memory when the now Members of both Houses should have been taken from them in an unusuall way I will not say by violence if they had been there present to the great feare and astonishment of that present Assembly but I will say no more as supposing this Act unjustifiable however not yet absolutely disclaimed for ought that I could ever yet see but his Majesty hath declared in print that he would proceed against them in an unquestionable way Vnquestionable way by these words not pronounced innocent but rather criminous A generall Declaration of the proceedings of this Parliament which words in what sence they may be taken I doe not for my part certainly know as being obscure to my understanding and not to all intents satisfactory which violation I take it hath been since pursued in his Majesties Declaration of the twelfth of August 1642. in offering to prefer an Iudictment upon the Statute of 25. E. 3. against divers Members of the House therein named and I take it his meaning is not in Parliament but of this I will speake no more Another right of Parliament is this That every Member of both Houses shall upon Summons come to the Parliament unser the paine of Amercement and other punishment as of old hath been used to be done as appeareth by the Statute of 5. R. 2. cap. 4. and also by the Statute made 6 H. 8. cap. 16. It is enacted that no Member of the House of Commons shall depart from the Service of the House without leave of the Speaker of the House of Commons and the Commons in Parliament Assembled which license shall be entred in the Booke of the Clarke of the Parliament upon Record under paine of losing those summes of Money which they should have had for their Wages by both which Statutes it doth appeare that departure from the House of Parliament without leave is a Crime and punishable of ancient times 5 R. 2. Of the Common Law declaratory for so it appeareeh by the first of these Statutes which was but declaratory of the Law formerly used and that the punishment was Fine and Imprisonment and sometimes Arbitrary appeareth by ancient Authority of Law But it may be objected Object that by a clause in the Statute of 5 R. 2. before named it is no Crime if the Member of Parliament so absenting himselfe can reasonably and honestly excuse himselfe to our Lord the King so that the King by this Statute is made the sole Judge of the offence and if the King License or Command the absence of any Member of either Houses it is sufficient To which I answer Sol. That the Statute is not to be intended in that sence that all Parliaments may be made frustrate and void at the will and pleasure of the King by his License or Command of the absence of any Member of Parliament without great cause for the same for that were not reasonable and honest as the words are Et veâ—ba accipienda cum effectu as the Law saith and otherwise the very essence of Parliaments would be shaken by such exposition But to make a full Answer to these words Our Lord the King before mentioned in the Statute are in Law taken for the King in his Politick Capacity not in his Personall and so it is no more then if the words had been to our Lord the King in his Court of Justice in his high Court of Parliament and so the Court of Justice is the Judge and not the King personally and so is the Law frequently takan for to give you an instance or two and that in a Statute Law as this is Merton cap. 3. Dominum Regem the Kings Court of Justice in the Statute of Merton cap. 3 are these words Statim capiantur in prisona Domini Regis detineanter quousque per Dominum regem vel alio modo deliberentur Here the words Dominum Regem our Lord the King are intended the Court of Justice of our Lord the King and not the Kings Person and so in the Statute of Marle-bridge Marl. cap. 8. Cum Domino â—ege the Kings Court of Justice Perceptum Domini regis perceptum curiâ— cap. 8. the words there are Et hoc per finem own Domino Rege faciend per transgressione c. Here cum Domino Rege is intended the Court of Chancery or Kings Bench and so is perceptum Domini Regis in that Statute taken for the command of the Kings Court of Justice and not for any other command of the King whatsoever In miserecordia Domini Res 1. curio Domini regis Statute enacts that Fine and ransome shall be made at the Kings pleasure intends the pleasure of his Court of Justice not his persons pleasure The Law is cleare in these Cases which are the very same in these words with the Statute 5 R. 2. before named Further because this objection seemeth great I will give you one instance more in a Statute latter then any of these the Statute of 25 E. 3. an Act so highly and worthily prised and much made use of at this time by the Kings Majesty the words are these Ou si home levira guerre counter nostre Seignior Le Roy en son Realme c. Here the words Nostre Siegnior Le Roy are taken for the Lawes of our Lord our King and by good judgement likewise as to me it seemeth not for any leavying War against his Person for that is included in the first branch of this Act Si home compassa ou imagine c. The Lawes and the Courts of Law or Justice intend the same thing therefore I conclude the words Our Lord the King must necessarily be meant in this Statute of 5. R. 2. the Kings Court of Justice or the Lawes of his Court of Justice to wit His high Court of Parliament who onely are
the Judges of any crime committed in that Court and no other inferiour Court as hath been proved at large Also this latter Statute of 6 H. 8. 6 Hen. 8. ca. 16. A stricter law then 5. R. 2. seemeth to conclude all Delinquents that have not Licence as is before mentioned although the occasion of their absence be great and urgent affaires even in Law and conscience satisfactory Now to deny unto the Parliament the dispensation of Justice against Offenders in this kinde as it is too apparent and withall to protect them from the censure of that high and great Court surely I say no more it is a violation of their Lawes and Rights unto them anciently belonging But that I may answer all Objections Object it is urged by the adverse party that their departure from the service of the Parliament was forced by tumults and disorders of people not without just feare and perill of their lives and therefore their absence not within either of the Statures before named but justifiable by the rules of all Law and Conscience Sol. To which I answer because it seemeth materiall that first it must be granted that those Members so departing were Summoned to returne to the Service of the Houses and their Answers especially of divers of the House of Peeres were to this purpose That by their duty of Allegiance they were bound to attend the Kings Person or that they were commanded to attend his Person and therefore they held themselves excusable which was in effect a plaine deniall divers of which Answers I have seene in print Now it must needs be inferred from hence and it plainely appeares to any man not devoid of reason That if there had been really any such danger or cause as is objected Nota. they would have inserted the same in their Answers and so reasonable and certaine an Argument of their innocency would not have been omitted as on the contrary so high and contumacious a defence would not have been returned such an affront and contempt of Justice that even a Court of Pye-powders would not have suffered Also see their Answers what they are their Allegiance is the ground of them as if their attendance on the Kings Person warranted them to doe injustice to violate the Lawes of these Statutes before named Is this their Allegiance to the King Is not the Subjects Allegiance confired to the Lawes Is not the very Etimology of the word derived from thence Legiantia Allegiance the Etymology quasi legis essentia therefore their answers not legall Their answer noâ— legall because they infringe the law viz. 5. R. 2 6. H. 8. Tumult what it is as also the Objection of being driven from the Parliament frivolous for then they would have made use of it in their answers Further to question the word Tumult afore mentioned doe numbers of people with Petitions no way disturbing the Peace make in Law a Tumult Certainely no likewise it appeares by undeniable proofe that some of them were sollicited away from Parliament by Letters therefore the former allegation is idle For the Kings absence from the Parliament in what condition it stands The Kings absence from the Parliament by the ancient law how farre justifiable I will offer you one of the ancient Lawes of that pious Prince Edward Sir named the Confessor whose Lawes the Kings of this Nation at their Coronation sweate to observe and keep the words are these rendred in English The King ought to be present at his Parliament unlesse he be hindred by sicknesse and then he ought to be in the same Towne where the Parliament is held and his sicknesse ought to be certified by twelve Members of the Parliament a Committee for that purpose of the Lords and Commons Here appeares no cause of his absence but sicknesse justifiable and of this he himselfe is not the Judge it must be certified as you have heard What not perill of his life may some say Is that no just cause of His absence You heare the Law I have nothing to say to questions It seemes in those dayes there were no such unworthy and dishonourable thoughts in the mindes of men as to doubt the security of Parliaments unto the Regall Person since in judgement of Law if Tumults or Disorders shall happen in the Common-wealth Parliaments are best able to suppâ—â—se them and to protect both King and pâ—ople from injury and wrong Now Parliaments are the bane of Princes as they are now to â—â—ed they are now Corasives when as you see formerly they were the onely curers of all Diseases in the Body Politique The King formerly not any where safe but here now the King in His owne judgement safe any where but here flying from them as from His enemy when as it is not possible he should finde any where that which he desireth but under God even with them peace and security Be not deceived Great Prince neither fly them that pursue you not in any Hostile manner The Parliament follow you with humble Declarations and Petitions for Peace you mistake their sweet Compellations put up your Sword into the Sheath and let Peace be in our dwellings and amongst us I have a little deviated I will returne unto my selfe and I finde the King still absent notwithstanding all that hath been spoken and justifying the same Indeed there is a Statute in the time of King Henry the 8 via 33. H. 8. cap. 21. 33. H. 8. ca. 21. by which in the Kings absence from Parliament His Assent by his Letters Patents under the Great Seale shall be sufficient Here it may be alledged Object that the Kings absence from Parliament is warranted by this Statute I answer Sol. This is nothing to make the ancient Law afore recited ineffectuall for his absence here upon this Law standeth as it did before this Act not touched or medled with by this Act and therefore sicknesse continues still a cause of absence of the Kings Person from his Parliament and no other and where he might legally justifie his absence before this Statute he may still doe the same and no otherwaies And although that the use now of late times hath been Vse of no force against a law Vi. infra that the first and last day of Parliament is sufficient yet that is but use which is of no force against a Law in being as I conceive Further His Assent by this Act is limited it is onely to Acts of Parliament and no other assent is warranted Note also that to dis-assent to any matter trans-acted in Parliament it giveth him no power at all Thus you see Ex libro de ordine Parlia Editi tempâ—re Edvardi filij Regis Ethelâ— redi the Kings absence from his Parliament how it stands by the ancient Law of which I have an extract as also by latter Law you have heard likewise the absence of the Members of the Houses debated But we will Argumenti