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
have shewed it unto them as indeed it was not then usuall But I shall aske the Gentleman whether he will justifie all the proceedings in that Cause as standing with the Common Justice of the Realme Certainly it would be now by many thought very hard for a person in custody to be first examined privately upon his own Oath to accuse himself and then without being further proceeded with by Law to have the Judgement in effect of a Traitor for killing a Person apparently not within the Statute of 25 Edw. 3. doubtlesse so farre as it appeares to me this may be one of those Presidents whereof Sir Edward Cooke aufereat oblivio si potest si non utcunque silentium tegat Of which opinion the Commons it seemes were who however they let it then passe he not pleading the priviledge of a Commoner yet took care it should not be so any more And it is observable that they desire no such Accusation should be received in Parliament but in His Majesties other Courts Come ad este fait use anciennement en temps de vos tres nobles progenitors c. Which affirmation is indeed as much as is stood upon viz. That it was not the use to try a Commoner in Parliament 17. His second proof 1 Hen. 4. nu 79. Where the Commons affirme Iudgements in Parliament pertaine onely to the King and Lords c. You may see the record at large in his book pag. 37. and M. Lylburnes called the Lawes funerall pag. 16. and sets in the Margint nota and pag. 38. That it is so full and punctuall a Parliamentary decision as is uncapeble of any answer or evasion To this if I should answer that it was no Act of Parliament and therefore bindeth not in succession nor is now by consequence of any force I followed no lesse Lawyer then Sir Edward Cooke but I confesse that passage seemes to me a Declaration of what of right did in any Parliament belong to the Lords and Commons and therefore to be more then temporary I shall therefore say that this President must extend onely to such things which were of the cogniscance of the Parliament and proper for that Judicature not of things did no way at all appertain unto that Court Rot. Parl. 13 Rich. 2. nu 10. after hearing a very long case the Record notes Ysembla as Seignieurs du Parlement que la dite petition n' estoit pas petition du Parlement einz que la matiere enycelle compris dent este tryepar la come ley Certainly they seeme not to have been Judges in that case nor in another Petition Rot. Parl. 16 Rich. 2. nu 32. To which the Answer is Suent a Roy purce que ceste petition n' est pas petition del Parlement Rot Parl. 10. Hen. 6. nu 35. The Commons affirme matters touching a mans Inheritance are not examinable in Parliament and 32 Hen. 6. nu 27. a President himself remembers page 51. it is expresly said Actions at Common-law be not determined in the High Court of Parliament By all which it is manifest those words that Judgements perteine to the King and Lords must be understood of such things whose decision is proper and perteine legally onely to the Parliament such was that 27 Hen. 6. nu 18. touching placing the Lords in Parliament and that was given 1 Hen. 4. in Parliament against the King himself of which the Commons seeme to have had no knowledge 1 Hen. 4. nu 145. which when the like came again in question Rot. Parl. 39 Hen. 6. nu 12. in the case of the Title of the Duke of York The Lords in Parliament charge the Iudges sadly to advise touching it who the 20 of October Answer That they were the Kings Iustices to determine matters in Law between party and party That this was above the Law and passed their Learning that the decision of it perteined to the Lords of the Kings blood and the Peerage of the Land and therefore they desired to be excused of giving Councell in that matter Now indeed in such cases I shall not deny but the King and they may be Judges Yet whatever that priviledge is in judging when they make a Law to binde the Subject concerning any thing of that nature to that the Commons are parties as well as the Lords See 7 Hen. 4. cap. 2. 25 Hen. 8. cap. 22. 28 Hen. 8. cap. 7. 35 Hen. 8. cap. 1. 18. To his next president of 17 Rich. 2. nu 20 21. touching Tho Talbots conspiring the death's of the Dukes of Lancaster and Glocester I have Answered before nu 12. That it was by the Lords onely referred to the Common-law 19. His next president is that of the Earl of Northumberland 5 Hen. 4. nu 12. which being no Commoner is nothing to the purpose as himself consesseth page 29. and page 41. Onely touching the Protestation of the Lords it is apparent they then had an opinion the King would have tryed him a Lord by the Judges without them who were his Peeres And for the Kings giving Judgement against Henry and Thomas Percy he well knowes there was no person then Judged or brought into Judgement onely an opinion of the King and Lords delivered upon a desire of the Archbishop of Canterbury who conceived himself and the Duke of York in some suspition of having adhered to Hotspur and the Earl of Worcester whom the Earl of Northumberland then newly cleared by them did free from having had any complyance with them Yet so as the King and Lords did affirme the warre formerly raised by them should be held Treason So indeed judgeing no man but delivering an opinion that a War raised by two whereof one was slaine in Fight the other beheaded the next day at Shrewesbury should be held Treason of which there was little question His next President is that of Weston and Gomenis to which though I have answered before nu 15. in the case of Hall their offences having been committed beyond the Seas and therefore not Tryable by an ordinary way in England and now taken away by Statute Yet it is apparent that Judgement was an Act of Parliament passing at the request of the Commons by the assent of the Lords and stopt till the King could be informed 20. His next is that of Alice Perers against whom Iudgement of Banishment and forfeiture of Land was given by the Lords without the King or Commons This is the onely President that hath most colour of truth and to his purpose in all his Book And whether she a person that laboured then under the publique hate for her many leud carriages might not have somewhat acted against her not fit to be observed at other times I cannot tell it appearing by record the Law on which that Judgement was grounded of the 50 Ed. 3. did passe without ever calling her to answer But for my part I doe affirme this
in the printed Book The gentleman cites this President I entreat him to peruse the Roll again and tell me if there can be possibly one more punctuall against the Lords judging a Commoner A servant attending a Member comming to Parliament is wounded The Lords and Commons doe not so much as attempt to Try and Censure the doer of it and the Judgement given is by Act of Parliament lesse then what both Lords and Commons hold but sufficient And the Party is allowed his Tryall by Jury in an ordinary Court of Justice 13. The 28. Hen. 6. The Commons impeached the Duke of Suffolk who waived his Peeres and the King gave Judgement but during the sitting of that Parliament The Lords being assembled in the Star-chamber in Councell the 28 of Novemb. Will Talboyes Esquire and others arrayed with Iacks Salets Swerds and Glaives in manner of Warre attempted to have slaine one of the Lords of Parliament and of His Majesties privy Councell there Assembled which being one of the most odious riots had been seen in the Kings time The Commons then sitting declare their detestation of the fact and impeach the said Talboyes and desire he may being then imprisoned in the Tower of London remaine there for 12 moneths and to answer the same in His Majesties Court in presence of his Justice but the thing desired being not altogether according to the course of the Common-law the Subjects undoubted birth-right was denied by the King and stopt and no proceedings against him in Parliament ever thought on I should be tedious to repeat the Examples of Murthers Riots Rapes and other misdemeanours complained of in Parliament and yet the Lords not at all attempting to Judge the offenders being a Commoner but onely to provide a faire Tryall should be had in the Kings Bench or other ordinary Courts of Common-law against him and sometimes by Statute desire to increase the punishment at the Common-law which had been vain had it been in their power Arbitrarily to have censured the Offender Such as would see them may amongst others read Rot. Parl. 13 Rich. 2. nu 11. 11 Hen. 4. nu 37 38. 11 Hen. 6. nu 12. 43. 15 Hen. 6. nu 13 14 15. 18 Hen. 6. nu 28. 23 Hen. 6. nu 42. And here I thought to have ended the Presidents I have observed in this case but that of Cambridge comes so fit that though it have been touched by others formerly I cannot but set it down somewhat more fully Unto Rich. 2. There was a great complaint in Parliament against the Major Baylifs and Cominaltee of Cambridge for some complyance in a late commotion against the University the Commons of that Town in their defence by their Councell plead against the Jurisdiction of the Court Que ceste Court n'ent doit avoir coniscance ne Iurisdiction The Lords moved affirme if they will give no other Answer they will proceed against them as men that know not what to say In the end a middle course is taken The Major and Citizens submit themselves to the Kings Ordinance touching onely their Franchises by vertue of which submission the King by the assent of the Lords seized the Franchises of the said Town And in the end committed to the Chancellor and Schollers the cognizance and punishment of defaults in the Assize of Bread Wine and Beer and of Flesh Fish c. And the rest of all the Franchises bestowed on the Major and Bayliffes againe This Ordinance gave no content to the Commonalty there who often molested the Schollars indicting them on true and sometimes on feined pretences Whereupon the Chancellor and Schollars about 7 yeares after framed a Petition to the Parliament against them which was sent down to the Major and Bayliffes of Cambridge commanding them to appear before the King and His Councell the next day after Candlemas with sufficient instructions and power to Answer all things for the Cominalty there under the Common-seal of the Town At which time the Major and Bayliffes came into Parliament but the Cominalty would not give them Authority to answer for them whereupon nothing was done of which contempt there is no question but we should have found some prosecution in that or some following Parliament but that not submitting the Lords knew they had no power to Try and Judge them being Commoners 14. And to speak seriously if the Lords may Try a Commoner they may Judge any mans title to his Lands for no Law limiting the extent of their power but that being Arbitrary it may reach to all causes whithersoever they will stretch it and so Westminster Hall sit quiet And the Subject of England hath not desired an illimited power no not in the two Houses and have therefore moderated Parliaments that they should not subvert the Lawes of the Land See 1 Hen. 4. cap. 14. 4 Hen. 4. cap. â—3 sometimes by expresse words determining that some things cannot be done in Parliament as that any should be impeached there of that concerns his Franktenement or hereditament c. Rot. Parl. 10 Hen. 6. nu 35. And as there is no limit of their power so being directed by nothing but their will either in judging what is an Offence or punishing of it they alone or with the Commons may alter the Law for ubi non est lex non est transgressio Rom. 4. 15. And if they can question and punish a man at their wills for that is neither Malum in se nor Malum prohibitum that is for that is no offence either by the Common or Statute Law a man may suffer by Fine Imprisonment or farther for that the Law takes no notice to be an Offence which is contrary to Magna Charta cap. 29. and a plain change of the Law which cannot be made but by the King and the three Estates in Parliament 15. Having thus shewed the Antiquity continuance inconvenience if otherwise of this Law There remaines onely to answer some presidents the Gentleman hath alledged as if the Practice had beene alwayes othrewise of all which though I might affirme with my Lord Cooke in Slades case lib. 4. fol. 94. that being never questioned nor confirmed by Judgements given when the case was stood upon they ought not to be regarged yet I shall shew him not one of them is at all to purpose every circumstance considered His first then is that of John Hall who killed the Duke of Glocester at Calice whose case yet he confesseth was not Tryable but in Parliament 16. Whether the King Lords had not cognizance of the fact of a Commoner so hainous not Tryable by the CoÌ„mon Law as this was not is a question I wil not now dispute That being absolutely taken away by Statut. Besides I am not satisfied this was not by Act of Parliament with the Commons consent for at the end of the Roll they thank the King for his just Judgement who yet never is read to