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
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
me to defend those mens Actions whom I neither know nor their carriages but their Cause and that too no farther then as it hath reference to the liberty of a Commoner of England being judged by the Lords Yet I cannot but say I have heard they have been great and long sufferers and by the English proverb we may give Loosers leave to speak such being the frailty of humane nature that laesa patientia fit furor Neither are they alone involved in the case There is a noble Knight and four grave Aldermen who have been Magistrates in one of the famous Cities of Europe who all of them have put out their Protestations in Print which he found perhaps more difficult to confute then to neglect But for their refusing to Answer and contemning the Lords Authority to their faces at the Bar. To this I must needes say that for my part I did never hear that refusing to Answer in a Court and demurring to the excesses of any Court was ever reputed a Contempt of the lawfull jurisdiction of that Court we all remember when certaine Gentlemen refused to Answer in the Star-chamber and pleaded against the Jurisdiction of that Court Yet neither the King nor the Lords excepted against their so doing And in the end their demurrer was allowed It is no contempt to affirme a Court hath not Authority in an especiall case that is to be determined by the Law to which every man is to submit And in a case of Imprisonment without any limitation of time certainely the Law ought be very clear that deprives a free-subject of that liberty is so much to be prised And if a Subject may not demurre to the Jurisdiction of any Court every Court may enlarge it's Jurisdiction and pretend what dormant Rules and Priviledges it pleaseth upon all occasions and become a faction of Tyrants over the People they being disabled to defend themselves from such encroachments and demurre to their Jurisdictions when they exceede their limits A Demurrer is a Dilatory plea not a contempt 10. For their appealing from their Iudicature in case of breach of Priviledge of which themselves alone and no others are or can be Iudges I answer the thing now in Question is whether they have a Priviledge to Judge Commoners It is said in Master Justice Huttons Argument that every Prerogative of the King containes in it self matter of prescription and by consequence is not against any established Law So may I say of the Priviledges of either House that they are such as are not against any Statute Law And that the continuall practice of all Ages hath made known to the world but more to themselves and therefore they are the Judges of them But if a question be of their Priviledges or it be doubtfull whether they can doe a thing or not Their Judgement is not to be received tanquam ex tripode they delivering it not by Inspiration but by Inquisition and therefore are bound to certifie themselves by all humane meanes whatsoever of the truth of every circumstance as by hearing the Kings Learned Councell the opinion of Judges Presidents of former Parliaments Practice of other Courts in the like cases and such like And this was the manner of their proceedings 32 H. 6. when though the Justices after mature deliberation had among themselves resolved they ought not to determine the Priviledges of the High Court of Parliament Yet the chief Justice shewed the example of other Courts on which they grounded their Sentence according to Law And yet that case was in the point of their Speaker a principall Member of the Commons and of a difference between him and the Duke of York one too of the House of Lords Neither may they extend their Priviledges farther then the Law warrants to which purpose there is of late years a notable President Henry Lord Cromwell having an Attachment served on him out of the Chancery for not obeying an Injunction contrary to the auntient Priviledge and Immunity time out of memory to the Lords of Parliament whereof the said Lord Cromwell prayed remedy The Lords having examined the case in Parliament in the presence of the Iudges and others the Queens learned Councell and upon hearing of their opinions it not appearing unto them that the said Attachment was warranted by the Common Law Custome of the Realme or by any Statute or President of the Chancery they did order the said Lord Cromwell should be discharged from the said Attachment Yet with this proviso That if at any time during this Parliament or hereafter in any other Parliament there shall be shewed sufficient matter That by the Queens Prerogative or by the Common Law or Custume of the Realme or by any Statute Law or sufficient President the person of any the Lords of Parliament in the like case is or ought to be attached or is attachable then from thenceforth that to take place which shall be so shewed or warranted c. by which it is manifest the priviledges of the Lords are and must be regulated by Law and by the opinions of the Judges and Lawyers and the practice of other Courts are to be known before any resolution taken And it may be farther observed that when any of the Houses have concluded on a Priviledge without that mature care it hath not continued of which for the Lords House there is a strong President 15 Ed. 3. where the Prelates Earls and Barons affirming with one consent that the Peers of the land ne deivent estre aresnez in menez en jugement si non en Parlement par lour Peres c. The Judges opposing it lasted not long being taken away as the printed Book shews the same year or certainly the Parliament next following And for the House of Commons to speak of later times that House having signified to my Lord Keeper That by the auntient Liberties of that House no Member of it ought to be served with a Sub pena out of Chancery The Lord Keeper did not onely refuse to recall his Sub pena but told the Messengers sent unto him he should not submit to any opinion of that House touching their Priviledges unlesse they could shew the same to have been allowed likewise in Chancery And of the same opinion was Egerton 39 Eliz. By all which it is evident the Law and perpetuall Custome must be the foundation of all their Priviledges 11. Neither the Voting in one or both Houses a right of doing a thing or the having somtimes exercised what they concluded upon prove it justly done or that they have by Law a Priviledge to doe it if stood upon or that it ought to be It is now generally held No Member of either House can be Bayle for any before the Lords without leave of the House whereof they are Members yet the 13 Rich. 2. the Bishops of Lincolne and Norwich undoubtedly of the Lords House and Iohn de Nevill and Levell Members