aime at an Arbitrary power to carry on their designes that the Lords without any presentment upon Oath or tryall by Iury may upon a bare information and examining of certaine Witnesses proceed against any Commoner whatsoever and that to deny this or not submit unto them is a breach of the Priviledge of the House of Peeres And a great Lawyer of late hath writ a Tract to justifie their Sentencing Fining and Imprisoning any Commoner and handling all who refuse to answer to them and by pen defend their so doing as contemners of their authority ignorant sottish Sectaries illiterate Ignoramus's altogether unacquainted with our Histories and Records c. To which I must needs say to answer once for all that this is not a sincere way of treating the matter in question to make the world beleeve there are none but such as contemne the authority of Parliament ignorant persons and the like which beleeve this when I dare boldly say of such as have studied and understand the question foure parts of five are of that opinion And himselfe pag. 45. holds their indubitable right of Judicature of Commoners to be but in extraordinary cases of Treason Felony Trespasse and Misdemeanors tryable onely in Parliament which if he shall be pleased to enumerate what they are that cannot elsewhere be tryed I shall not much differ with him but that the tryall of such offences might be proper for Parliament but such I confesse I know none And to make that a crime which no knowne Law calls a crime is against the Apostles definition of one Sinne is the Transgression of the Law and againe I had not knowne sinne but by the Law It is likewise against the Lawes of this Land 7. Before I passe farther it will not be amisse to agree upon the Question which is not Whether upon the Petition of the Commons and that passing the Lords House the King assenting to it a Commoner may not be condemned it being indeed then an Act of Parliament such were those of 50 E. 3. against Richard Lions William Ellis c. which were confirmed by the King at Eltham Neither if the King and Lords which I neither affirme nor deny can censure in some cases a man according to Law doth it therefore follow the Lords alone can cause a Commoner to be fined imprisoned or executed It being certaine the King for ratifying any such thing in Parliament must be present in his naturall capacity of which there needs no other instance then the last I mentioned of the 50 E. 3. when the King being sick sent for the Lords and Commons to Eltham which certain he had not done had there been any other practiced way for confirming what he intended to passe besides his owne presence before the Statute 33 H. 8. cap. 21. which yet enacts that every law confirmed in his absence shall be both under his Seale and signed with his hand of which the last is certainly personall Neither is it the Question Whether the Lords can judge such cases as come into their House according to the Statute 14 E. 3. c. 5. Stat. 1. or give Judgement upon a Writ of Error on a Cause legally brought thither out of the Kings Bench. Neither do I impugn but that their opinion is of great Authority in point of Law every circumstance rightly considered before their delivering of it of which an undoubted one I conceive to be the knowing what the Law is by the Judges or other who best understand the thing in question for if otherwise it is contrary to sense to imagine a few Lords of whom not many are usually skilled in the Lawes and being out of the House are but like other men should within those walls as it were by inspiration be the supreame Judicature of the Realme There must at the tryall of a Peere be at least 12. or above who have ever assisting them some of the Judges to advise the Lord Steward and them what the Law is who comming up to the House of Peeres may direct the Judges who have spent much time in studying it what the Law is This is so clear it needs no proof else I could shew where the opinion of the Judges not taken the Judgement of the Lords was soon made voide And in other where being given according to their sense it remaines Law to this day But the Question is whether the Lords alone upon a bare Information for a Triall by Jury they use not nor ever did to my knowledge without the King can Try and Censure any Commoner to his Detriment either in his Person or Estate 8. First And this I conceive they cannot being not certain to be de Vicineto Secondly Because in point of Life no Commoner can ever Try a Lord of Parliament Thirdly Because the party Accused cannot challenge any of the Lords his Tryers c. Fourthly Because it is expresly enacted 4 Edw. 3. that they should never have any power of so doing which because the Act it self is not Printed and is by some said to be onely a Protestation I will therefore for the clearing of it set down at large Concordia ne trahatur in consequentiam Et est affentu accorde par nostre Seignieur leRoy touz les grantz en plein Parlement que tout soit il que le ditz peres cōe juges du Parlemēt empristrent en la presence nostre Seign le Roy a faire a rendre les ditz jugemēts par assent du Roy sur aucuns de ceux que n'estoient pas lour peres ce par encheson de murdre de Seig. Liege destructiō de celui que fut si pres de sank Royall fitz du Roy que per tant les ditz peres q' ore sont ou les peres q' serront en temps avenir ne soient mes tenuz ne charges a rendre jugements sur autre que sur lur peres ne ace faire mes ayent les peres de la terre poer einz de ce pur touz jours soient dischargez quites que les avantditz jugementz ore rendez ne soient tret en ensample n'en consequence en temps avenir pur quoy les ditz Peres puissent estre charges desore a juger autres que lour peres contre la ley de la terre si au tiel eas aveine que Dieu defende An accord lest it should be drawne in consequence It is assented and agreed by our Lord the King and all the great men in full Parliament that however the said Peeres as Iudges of Parliament did undertake in the presence of our Lord the King to give and render the said Iudgements by assent of the King upon some of those who were not their Peeres and that by reason of the murder of our liege Lord and destruction of him who was so neere the Blood Royall and sonne of a King That notwithstanding the Peeres that now are
THE COMMONERS LIBERTY OR THE ENGLISH-MANS BIRTH-RIGHT COKE INST 2. PAG. 56. If any by colour of any authority where he hath not any in that particular case arrest or imprison any man or cause to be arrested or imprisoned this is against this Act viz. Magna Charta cap. 29. and it is most hatefull when it is done by countenance of Justice Ibid. pag. 56. L exest tutissima cassis Ibid. pag. 161. Dormiunt aliquando Leges moriuntur nunquam LONDON Printed for R. Royston at the Angel in Ivie-lane 1659. THE COMMONERS LIBERTY OR The English-man's Birth-right 1. THE Subjects of this Kingdom have ever esteemed amongst earthly blessings the greatest to have consisted in the due administration of Justice and therefore have on all occasions had recourse to their Princes for the confirmation and right execution of their Lawes the undoubted birth-right of every Englishman the surest sanctuary any can take and the strongest fortresse to protect the weakest 2. This made Aldred Arch-bishop of Yorke at the Coronation of the Conquerour take a solemne Oath of him That aequo jure Anglos quo Francos tractaret And the people still call for their old customes the Lawes of S. Edward and such like even to the granting of Magna charta by King Iohn quae ex parte maximâ leges antiquas regni consuetudines continebat And these are those we now call the Common Law which is no other then the common Custome of the Realme which is seldome at any time changed or taken away without some notable damage to the people 3. One of these ancient Customes is That no Freeman of England should be tryed or proceeded against nisi per legale judicium parium suorum by his Peeres that is his equals such who either in respect of his Nobility is of the Lords House or if he be Commoner of such as is capable of being of the House of Commons at least unlesse some Law have disabled him 4. The Originall of this Custome in England is for ought I know as Ancient as any Triall in this Nation no doubt long before the Conquest and since that time amongst the Lawes of Henry the First which were apparently for the most part drawn from the Customes of the Kingdom we find them speak as an undoubted Maxime that Unusquisque per pares suos judicandus est ejusdem Provinciae we now say de Vicineto peregrina vera judicia modis omnibus submovemus and in those times a man might challenge whom and as many as he would Iudices non debent esse nisi quos impetitus elegerit which must be understood for the tryall by Jury for other Judges as the chiefe Justice c. he might not except against According to this William de Brauce Anno 1208. affirmed he was ready to satisfie the King secundum judicium Curiae suae Baronum parium meorum saith he which was before Magna Charta And this Custome thus antient was at the first establishing of Magna Charta confirmed by expresse words in the 29. Chapter and ever since taken as a great injurie when any hath otherwise been proceeded against K. Iohn soon after the first grant of the Great Charter had recourse to the Pope against the Barons who takes notice their tryall ought to be in curia sua per pares eorum secundum leges consuetudines regni An. 1227. King Hen the 3. urging his brother to deliver a Mannor of his to one Waleran The Earl answered the Mannor belonged to him yet he was ready Curiae regiae subire judicium Magnatum terrae At which the King being very angry told him if he persisted in the refusal he should leave the Kingdome who with great resolution answered he would not sine judicio Parium suorum So An. 1234. one of the reasons the Earl Mareschall gives for his taking up of armes was that the King had severall times defied him cum semper saith he paratus essem in curia juri parere stare judicio parium meorum By all which and many more Examples which for brevity I here omit it hath ever been held an undoubted injury when any hath been proceeded against otherwise then per Pares in such cases as were of their cognizance 5. Some of the grounds of reason for avoiding all partiality on which this is built I shall hereafter touch though I can adde nothing to that is so learnedly done by other men Yet it will not be here amisse to shew that this ancient and fundamentall way of proceeding hath been never in any kind altered but to the intollerable detriment of the Subject The cause of making the Statute of 3 Hen. 7. cap. 1. is said to be for that by severall enormities in untrue demeanings of Sheriffs in making of Panells and other untrue returns little or nothing could be found but divers were almost utterly destroyed c. And therefore it doth enact that certaine Councellors there named should upon Bill or Information call before them the said misdoers and examine them and others by whom the truth might be knowne and to punish such as they should find defective after the forme and effect of Statutes thereof made c. Yet how intoller able a burthen the proceedings Censures Decrees of the Star-chamber were found to the Subject and the meanes to introduce an Arbitrary power every mans memory reacheth to and the Act for abolishing it sufficiently declares The 11 H. 7. cap. 3. authorized Iustices of Assize and of the Peace upon a bare information without any finding or presenting by verdict of twelve men to heare and determine all offences by colour of which Act shaking saith Sir Robert Coke the Fundamentall Law it is not credible what horrible oppressions were committed c. I might here remember the 31 H. 8. cap. 8. and the 34 H. 8. cap. 23. which altering that ancient and knowne try all by Jury were not long lived being both repealed the 1 E. 3. cap. 12. nor could the King by them work that Reformation he expected And whereas it is objected There must somewhere be an Arbitrary power I grant some must judge whether Laws to be made are for the good government of a Common-wealth that is the Parliament but not in the executing of them For Cum leges institutae fuerint non erit liberum arbitrium judicare de ipsis sed oportebit ipsum judicare de ipsas 6. Under this impartiall way of distributing equall justice to all men in receiving which certaine it is reasonable the highest Duke should be levell with the lowest beggar and is for ought I know the chiefest Levelling aymed at the Subjects of England have enjoyed great Peace and happynesse ever strugling against the exercise of any arbitrary power whatsoever But now of late when we are freed of the Star-chamber c. there is an opinion raised by some Grandees who are feared to
or hereafter shall be may be never held nor charged to give judgement on other then on their Peeres neither shall the Peeres of the Land ever have power to doe it but shall be for ever discharged and quitted from the doing of it And that the aforesaid judgments now rendred shall not in the future be drawne into example or consequence for the charging the said Peeres hereafter to judge other then their Peeres against the Lawes of the Land if the like case should happen which God forbid 9. I professe for my part I cannot imagine how it is possible for any thing to be penned more fully being a plaine Declaration what they had done was against Law and a provision for the future But because a learned Gentleman hath of late made an artificiall Discourse to blinde the world and take off the force of this Act of Parliament for such it was it will be necessary to examine what he opposeth against it 1. That this is no Act of Parliament but a bare Protestation without the Kings or Commons Assent And yet it is expresly said to be Assented to by our Lord the King and all the great Ones in full Parliament I desire to know whether any thing can passe in full Parliament to which the Commons are not Parties For the being but a bare Protestation the Title shewes the contrary which calls it an Accord which is a Compact an Agreement not of one party that dissents from others but of all parties concluding together what the Law is such a Compact or Agreement is a Law That the House of Commons nor the Commoners then Iudged ever demurred or excepted against the Lords Iurisdiction c. And yet it is plaine it was Assented unto by the King and Lords c. I shall desire to know of him whether ever any Assented to that no man desired Certainly some excepted against what was then done themselves could not for they agreed it should be so no more it must therefore necessarily follow the House of Commons or the Parties themselves did it and this may serve For that he saith a little after that this Protestation was meerely voluntary it should seeme then the Judgement given by the Lords was not voluntarily the King over ruling them And this Protest if it be no more is an exception against it somewhere 2. The Lords in that do professe and justifie their right of being Iudges in Parliament Which is not denyed the King and them in some cases but they doe likewise professe that it extends not to a Commoner 3. That this was that they might not be constrained by the Kings Command against their wills in his presence to give Iudgement in ordinary cases of Treason or Felony in the High Court of Parliament against such that by Law might and ought to be Tryed in the Kings Court at Westminster c. but onely in such cases which could not well be Tryed elsewhere c. This is in effect what lie sayes To which I am forced to desire him to tell me what those cases are that now cannot well be Tryed elsewhere And whether there are now in our Law any such cases as the Canonists and Casuists call casus reservati That cannot be Tryed by the ordinary Judicatories of the Law but must have recourse back to the Legislative power to be ventilated there ex post facto our Law being now a better disputed more compleat comprehensive Law then it was in Edw. 3. Raign This I should be glad to know from some that understand the Fountain and Reason of our Law as well as the Letter It is certaine that for above 200. years there is no example of proceeding against any Commoner in the House of Peers but by Act of Parliament during which time there was none of those cases fell out that could not well be Tryed elsewhere but by Judgement in the Lords House Whatsoever is an offence is punishable by Law and ought to be Tryed in His Majesties ordinary Courts of Justice The Statute of Marlebridge provides quod tam majores quam minores justiciam habeant recipiant in Curia domini Regis And to think that any one House or both which are not a full Court without the King hath power Arbitrarily to punish one no Member of their owne for that the Law takes not notice of to be a fault I know not how well it agrees with the rules of Justice and how farre distant from that so much complained of Arbitrary Power which I shall never think a Court of Parliament will ever desire to have or exercise whose jurisdiction the more high and absolute it is the more just and honourable ought the proceedings in it to be and to give example of Justice to other inferiour Courts for their being not constrained to give Iudgements against their wills c. That is true but it is likewise that they should never have power to doe it and an affirmance what they had done was against the Law of the Land 4. He affirmes this Protestation to have been made onely against the Lords giving Sentence in Felony and Treason and in the Kings owne presence who usually pronounced Sentence Himselfe with the Lords assent and did not charge to give it as here He did not against Sentencing Fining and Imprisoning any Commoner for railing and libelling against their Persons Iurisdictions and Proceedings c. All this hath no colour out of the Record or practice of other times and it being certain there was then Crime but onely Treason mentioned in that Act or Protestation as he calls it why is it not as well to bar their giving Judgement against a Commoner in other Causes as Felony which himself confesseth it reacheth to ubi lex non distinguit nec nos debemus distinguere For the Kings giving Judgement in Parliament with the Lords Assent I doe confesse Judgements there ought to be properly and punctually entred as given Par nostre Seignieur le Roy que est Soveraigne Iuge en toutz cas par les Seignieurs spirituels temporels avel ' assent de les comes de laterre ou a lour petition nemy par les Seignieurs temporelx seulement That is by our Lord the King who is Soveraign Judge in all Causes and by the Lords Spirituall and Temporall with the Assent of the Commons or at their Petition But it doth not follow that if otherwise they are invalid it being certaine there be many Judgements generally entred as given in the Kings presence by the Lords Spirituall and Temporall and that not held to be any cause of Exception Compare Rot. Parl. apud Lecest. 2. H. 5. nu 16. with Parl. apud Westmin nu 13. See likewise the Judgements against the Spencers 21 R. 2. nu Rot Parl. For Lilburnes and Overtons Railing and Libelling against the Persons and Jurisdictions of the Lords for my part I shall say nothing having not taken upon