the said Earle ought to make fine and ransome at the will of the King Whereupon the said Earle most humbly thanked our Lord the King and the sayd Lords his Peers of Parliament FOR THEIR RIGHTFULL JUDGEMENT and the Commoners for their good affectious and diligence used and shewen in this behalfe And the said Earle further prayed the King that in assurance of these matters to remove all jealousies and evill suspitions that he might be sworn a new in the presence of the King the Lords and Commons in Parliament and the said Earle tooke an Oath upon the Crosier of the Archbishop of Canterbury to be a faithfull and loyall lige to our Lord the King the Prince his sonne and to the heires of his body inheritable to the Crown according to the Lawes of England Whereupon the King out of his grace pardoned him his fine and rausome for the trespas aforesaid After which num 17. the Lords spirituall and temporall humbly thanked the King sitting in his royall Throne in the white Chamber for his grace and pardon to the said Earle of his fine and ransome and likewise the Commons thanked THE LORDS SPIRITUALL and TEMPORALL FOR THE GOOD and JUST JUDGEMENT THEY HAD GIVEN AS PEERS OF PARLIAMENT TO THE SAID EARLE From this memorable record I shall observe First that though this Declaration of this Earles case was made by his Petition in the presence of the King Lords and Commons in Parliament according to the Statnte of 25. E. 3. yet the Lords only by Protestation in presence of the King and Commons claimed to be THE SOLE JUDGES OF IT as Peers of Parliament and belonging to them OF RIGHT Sâ—condly That this claime of theirs in this case was acknowledged and submitted to both by the King and Commons and thereupon the Lords only after serious consideration of the case and Statutes whereon it depended gave the definitive sentence and judgement in this case that it was neither Treason nor Felony but Trespas only c. Thirdly That the Earle thanked the King only for his grace the Lords FOR THEIR JUST JUDGEMENT and the Commons only for their good hearts and diligence having no share in the judgement though given by the Lords both in the Kings and their presence and that the Commons themselves returned speciall thanks to the Lords spirituall and temporall on Parliament for their good and just judgement Fourthly That this judgement of the Lords only was finall and conclusive both to the King and Commons who aquiesced in it All that can be objected to evade this President Object is that this Judgement was given in case of a Peer wherein the Lords only are the Judges by Magna Charta c. 29. but not of a Commoner which is the question I answer Answ that though this judgement of theirs was in case only of an Earle who was a Peer triable * See Cooke 2. Inslit on Maâ—na Charta c. 29. only by his Peers yet the King Lords in this Parliament the very same day gave Judgement of High Treason against Henry and Thomw Peircy one of them no Peer and OTHERS who were in their companie who were but Commoners and no Peers for levying warre against the King and that without the Commons as is evident by the Parliament Roll of 5. H. 4. nu 15. Et anxy mesme le vendreay AIVGGES PAR LE ROY ET SEIGNEIURS EN PARLEMENT que levier de guerre fait per les ditz Mounsieur Henry Mounsieur Thomas furont tenuz pur treason ceo si bien de eux mesmes come DE AUTERS qui fueront en lour compaigne au temps de dit lever which quite takes off this Objection Seâ— Mr. Prynnes Doome of Cowardice and Treacherie p. 2. 3. 4. 5. c. where these records are cited at large verbatim To put all out of question I shall instance in some few ancient prefidents more which are full and punctuall In the Parliament of 1. R. 2. num 38. 39. 40. The Commons prayed that all those Captaines who had rendred or lost Castles or Townes through default might be put to answer it in this Parliament and severely punished according to their deserts BY AWARD or Judgement OF THE LORDS and BARONS to eschew the evill examples they had given to other Governours of Townes and Castles Whereupon Sir Alexander de Buxton Constable of the Tower was commanded to bring BEFORE THE LORDS IN PARLIAMENT William de Weston and Lord of Gomynes both of them Commoners on Friday the 27. of November to answer such Articles as should be surmised against them on the Kings behalfe Being brought BEFORE THE LORDS in full Parliament they were severally articled against at the command of THE LORDS by Sir Richard le Scrop Knight Steward of the Kings House and their severall Articles and answers to them in writing being read before THE LORDS Which done the Constable was commanded to bring them againe before THE LORDS on Saturday next ensuing being the 20. of November on which day it was shewed unto them severally by the said Steward by THE LORDS COMMAND That THE LORDS OF THE PARLIAMENT whose names are particularly mentioned in the Roll had met together and considered of their respective answers and that IT SEEMED TO THE LORDS AFORESAID that the said William had delivered up the Castle of Outherwycke to the Kings enemies without any duresse or want of victuals contrary to his alleagiance and undertaking safely to keep it and therefore THE LORDS ABOVE NAMED SITTING IN FUL PARLIAMENT ADJVDGE you TO DEATH THAT you SHAL BE DRAWN and HANGED But because our Lord the King is not informed of the manner of the Judgement the exâ—cution of it shall be respited till the King be thereof inâ—ormed Aâ—ter which Judgemeâ—t given it was shewed to the said John Lord of Gomynes by the 〈◊〉 Steward how the said LORDS had assembled and considered of his answer and THAT â—â—â—â—â—EEMED TO THE LORD sitting in full Parliament that without duresse or default of victualls or other necessaries for the defence of the Town or Castle of Arde and without the Kings command hee had evilly delivered and â—urrendred them to the Kings Enemies by his own default against all apparance of right or reason against his undertaking safely to keep the same Wherefore THE LORDS aforesaid here in full Parliament ADJUDE YOU TO DEATH And because you are a Gentleman and a Baronet and have served the Kings Grandfather in his Warrs and are no Leigeâ—man of our Lord the King you shall be beheaded without having OTHER JUDGEMENT And because that our Lord the King is not yet informed of the manner of this Judgement the execution thereof shall be put in respite untill our Lord the King be informed thereof Loe here two expresse Judgements given in Parliament by the Lords alone without King or Commons in case of Treason even against Commoners themselves And an expresse acknowledgement of the Commons of the Lords
Committees and proceedings contrary to the rules of Law and Iustice to right all grieved Petitioners especially such who have waited at least seven yeares space at your doores for reparations relieve poore starved Ireland and raise up the almost lost honor power freedome and reputation of Parliaments by acting Honorably and heroically like your selves without any feare favour hatred or selfe-ends and confining your selves the Commons House to the ancient bounds and rules of Parliamentary Iurisdiction and proceedings and to excell all others as farre in Iustice Goodnesse and publike resolutions as you do in Greatnesse and Authority Which that you may effectually performe shall be the the prayer of Your Lordships in all humble Service W. PRYNNE A PLEA For the LORDS OR A short yet full and necessary Vindication of the Judiciary and Legislative Power of the House of Peeres and the Hereditary just Right of the Lords and Barons of this Realme to sit vote and judge in the high Court of Parliament THe treasonable and destructive designe of divers dangerous Anabaptists Levellers Agitators in the Army City Countrey and of Lilburne Overton their Champions and Ring-leaders in this Seditious Plot to dethrone the King unlord the Lords new-modell the House of Commons extirpate Monarchy suppresse the House of Peers and subvert Parliaments the onely obstacles to their pretended Polarchy and Anarchy are now so legible in their many late printed Petitions Libells Pamphlets and visible in their actings and publike proceedings that it rather requires our diligence and expedition to prevent then hesitancy to doubt or dispute them they positively protesting against and denying both King and Monarchy in their a A Remonstrance of many thousand aâ—zens to their own House of Commons p. 6. the just mans Justification p. 10. Regall Tyranny Discovered A Declaration from his Excellency and the Generall Counsell of the Army Ian. 11. 1647. p. 7. Speeches c. at a Conference newly published by Walker printed verbatim out of Dolman the Iesuit his Booke condemned Pamphlets and Remonstrances with the Power and Judicature of the House of Peers and their undoubted just Hereditary right to Vote act or sit in Parliament because they are not elected by the people as Knights and Burgesses are asserting b Lilburnes Iust Man in Bonds p. 1 2. A Pearl in a Dunghill The Free-mans Freedome Vindicated An Anatomy of the Lords Tyranny his Argument and Plea before the Committee against the Lords Authority his Petition to the Commons his Letters to Henry Martin Overtons Arrow of Defiance shot into the Prerogative Bowells of the House of Lords his Petition and Appeale A Defiance against Arbitrary Vsurpation The Agreement of the People and Petitions wherein it was presented to the House of Commons An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 192. to 204. That they are no naturall issues of our Lawes but the Exorbitances and Mushromes of Prerogative the Wenns of just Government the Sons of Conquest and usurpation not of choice and election intruded upon us by power not made by the people from whom ALL POWER PLACE and OFFICE that is just in this Kingdome OUGHT TO ARISE meere arbitrary Tyrants Vsurpers an illegitimate and illegall power and Judicatory who act and Vote in our affaires but as INTRUDERS who ought of right not to judge censure or imprison any Commoner of England even for libelling against them refusing to appeare before them reviling and contemning them and their Authòrity to their faces at their very Barre as Lilburne Overton bost and print they did or breaking any of their undoubted Priviledges And to accomplish this their designe the better they endeavour by their most impudent flattery to ingage the House of Commons against the House of Peers the better to pull them downe stiling and proclaming them in their c Overtons Petition and Appeal to the High and mighty States the Knights and Burgesses in Parliament assembled Englands legall Soveraigne Power The Râ—monstrance of many thousands to their own House of Commons A printed Petition now in agitation of many Freeborne people to the only Supreme Power of this Realme the Commons in Parliament assembled The Anatomy of the Lords Tyranny An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 154. to 204. Petitions and Pamphlets The ONLY Supreme legall Judicatory of the Land who ought BY RIGHT to judge the Lords and their proceedings from whom they appeale for right and reparations against the House of Peeres affirming That in the Commons House alone resides the formall and legall Supreme Power of England who ONELY are chosen by the people and THEREFORE IN THEM ONELY is the power of binding the whole Nation by making altering or abolishing Lawes without the Kings or Lords concurrent assents to whom they now absolutely deny any Negative voice making the Commons a compleat Independent Parliament of themselves and therefore present all their Petitions and addresses to them alone without any acknowledgement or notice of the House of Peers to whom they deny any right or title to sit or vote in Parliament unlesse they will first divest themselves of their Peerage and Barons right of Session and submit to stand for the next Knights and Burgesses place in the House of Commons that shall fall void where if they may have any voice or influence the meanest Cobler Tinker Weaver or Water-man shall be elected a Knight or Burgesse sooner then the best and greatest Peer and John of Leyden preferred before King or Prince Charles Sic Sceptra ligonibus aequanti which Petitions and Pamphlets of theirs have so puffed and bladdered up many Novices and raw Parliament-men in the Commons House unacquainted with the bounds proceedings and originall Constitution of Parliaments and the Lawes and Customes of England that they begin to act vote and dispose of the Army Navy c. without and against the Lords not expecting their concurrence contrary to all former proceedings of Parliament the Lords just Priviledges and their own Solemne League and Covenant to maintaine them which may prove destructive to both Houses the Parliament Kingdome and oppressive to their Representatives the people who generally dislike it if not timely redressed and breeds such a deadly feud between the Houses as may ruine them both and the Kingdome to boot The end of these Anabaptists Levellers and Lilburnians being only to * See M. Edwards Gangraena part 3. where this is fully demonstrated destroy the Parliament by setting both Houses at variance they inveighing as bitterly against the power proceedings Ordinances Votes Power Members undue Elections and unequall Constitutions of the House of Commons as the Lords and therefore have so earnestly pressed in their d Lilburnes Letter to a friend Innocency and Truth justified and his late Letters to Cromwell Martin Sir Thomas Fairfax and others Englands Birthright Englands lamentable Slavery Another word to the wise Comparata Comparandis Liberty against Slavery The
to make such Knights Citizens and Burgesses lawfull Members of Parliament and to represent the Commons of England without any election of the people the Laws made by our Ancestors in Parliament See Littleton Fitz-Herbert Brut. Ashly Tit. VVarranty Obligat Covenant c. obliging their posterity whiles unrepealed as well as their Warranties Obligations Statutes Feofements Morgages and alienations of their Lands as the Objectors must acknowledge therefore they must of necessity grant their present sitting voting and judging too in Parliament to be lawfull because thus warranted by the Lawes and Customes of the Realme 4. If all Power in Government and right of sitting judging and making Lawes or Ordinances in Parliament be founded upon the immediate free election of all those that are to be Governed and of necessity that all those who are to be subject and they ought to be represented by those who have power in Government the Summe of f See M. Edwards his Gangraena part 3. p. 142. to 162. Lilburnes Overtons and the Levellers reasons against the Lords Iurisdiction then it will of necessity follow that the orders Votes Ordinances and Lawes made by or consented to by the Knights Citizens and Burgesses in Parliament ought not to bind any Ministers Women Children Infants Servants Strangers Freeholders Citizens Burgesses Artificers or others who cannot well or properly be represented but by persons of their owne sex degrees trades and callings and so every sex trade calling in each County and Corporation in England should send Members of their own to Parliament to represent them but only such Freeholders and Burgesses who had voices in and gave free consent to their Elections not any who have no voyces by Law or dissented from those elected and returned yea then it will necessarly follow that those Counties Cities and Burroughs whose Members have been injuriously impeached suspended driven away or thrust out of the House of Commons by the objectors and the Armies practise and violence contrary to all former presidents are absolutely free exempted and not bound by any Votes or Ordinances made or taxes imposed by the Commons House because they have no Members to represent them residing in Parliament and that those Counties and Burroughs whose Knights and Burgesses are dead or absent are no wayes obliged by any Votes Ordinances or Grants in Parliament And then how few in the Kingdome will or ought to yeeld obedience to any the Acts Ordinances or Votes of this present Parliament or to any Mayors Sheriffes Aldermen or Heads of Houses made by their Votes and Authority usually made by election heretofore or to any Iudges Justices Governours Generalls Captains or other Military Officers made by their Commission or appointment without the generality of the peoples Votes or consent especially when above halfe or three full parts of the Members were absent or driven from both Houses by the Objectors violence and menaces These Answers premised I shall now proceed to the proofe of the Lords undeniable Right and Authority to sit Vote and give Judgement in Parliament though not actually elected and called by the people as Knights and Burgesses are 1. It is evident by the Histories Republikes of most ancient and modern Kingdomes and Republikes in the world that their Princes Nobles Peers and great Officers of State have by the Originall Fundamentall Lawes and Institutions by right of their very g 31. H. 8 c. 10 See M. Seldens Titles of Honor Cassanaeus Catalogus Gloriae Mundi Alanso Lopez in Nobiliario and others who write of Nobility Cambd. Brit. of the Noâ—â—lity and Courts of Iustice in England Nobility Peerage and great Offices without any particular election of the people a just right and title to sit consult Vote enact Lawes and give Iudgement in all their Generall Assemblies of State Parliaments Senates Diets Councells as might be mainfested by particular instances in the Kingdomes Republikes Parliaments Diets and Generall Assemblies of the Iewes Egyptians Grecians Romans Persians Ethiopians Germans French Goths Vandalls Hungarians Bohemians Polonians Russians Swedes Scythians Tartars Moores Indians Spaniards Portugalls Danes Saxons Scots Irish and many others And to deny the like priviledge to our English Peers and Nobles which all Nobles Peers in all other Kingdomes Nations Republikes anciently have done and yet doe constantly enjoy without exceptions or dispute is a grosse unjury injustice and over-sight yea a great dishonor both to our Nobility and Nation Secondly By and in the very primitive constitution of our English Parliaments it was unanimously agreed by the Kingdomes and peoples generall consents that our Parliaments should be constituted and made up not of Knights and Burgisses onely elected by * E. H 6. c. 7. 10. H. 6. c. 2. 32 H. 6 c. 15. Crumpton Jurisdict p. 1. 2. 3. Cooke 4 Instit c. 1. Freeholders and Burgesses not by the generality of the vulgar people who would now claime and usurpe this right of election but likewise of the King the Supream Member by whose h Cooke Instit c. 1. n. 1. 10. Modus Tenendi Parliamentum Crompton Jurisdiction of Courts Tit. Parliament M. Seldens Tit. of Honour par 2. c. 5. writs the Parliaments were to be sommoned and by the Lords Peers Barons ecclesiasticall and civill and great Officers of the Realme who ought of right to sit vote make Lawes and give Judgement in Parliament by vertue of their Peerage Baronries and Offices without any election of the people the Commons themselves being no Parliament judicatory or Law-givers alone without the King and Lords as Modus tenendi Parliamentorum Sir Edward Cooke in his 4. Institutes ch 1. Mr. Seldens Titles of Honor part 2. ch 5. Vowell Camden Sir Thomas Smith Cowell Minshaw Crompton with others who have written of our English Parliaments assert and all our Parliament Rolls Statutes and i 33. H. 6. 16. Br. Parliam 4. 39. E 3. 7. 35. 11. H. 7 27. Br Parl. 107. 4. H. 7. 18. 7 H. 7. 14 Crumptons Iurisd f. 9. Co. 4. Institutes n 15 35. Fit f. 20. Dyer 92. Iudge Huttons Argument of Mr. Hamdens case p 32. 33. Law-bookes resolve without whose threefold concurrent assents there is or can be no Act of Parliament made Thirdly This right of theirs is confirmed by prescription and custome from the very first beginning of Parliaments in this Kingdome till this present their being no one president to be found in History or Record of any one Parliament held in this Island since it was a Kingdome without the King personally or representatively present by a Protector Custos or Regni Commissioners as he ought to be or without Lords and Peeres anciently stiled Aldermen Heretockes Senators Wisemen Nobles Princes Earles Counts Dukes c. by our Historians who make mention of their resorting to fitting voting and judging in our Parliaments Generall Assemblies and Councels under those Titles without the peoples Election long before the Conquerors time in the anciented Parliaments and Councels we read of
at all because some of the Lords were not come by reason of foule weather shortnesse of warning or other publike imployments all their personall presence in Parliament being reputed necessary and expedient And 20. R. 2. N. 8. The Commons themselves in Parliament required the King to SEND FOR SUCH BISHOPS and LORDS WHO WERE ABSENT to come to the Parliament before they would consult of what the Chancellor propounded to them in the Kings name and behalfe to consider of To recite no more ancient Presidents in the Parliament of 2. Caroli the Earle of Arundell sitting in the Parliament being committed by the King to the Tower of London about his sonnes marriage May 25 1626. without the Houses privity and consent whereby their Priviledges were infringed and the House deprived of one of their Members presence thereupon the Houses of Peeres adjourned themselves on the 25 and 26. of May without doing any thing and upon the Kings refusall to release him they adjourned from May 26. till June 2. refusing to sit and so that Parliament disolved in discontent his imprisonment in this case being a breach of Priviledge contrary to Magna Charta And not long after the beginning of this Parliament upon the Kings accusation and impeachment of the Lord Kimbolton and the five Members of the Commons House * An Exact collection part 1. both Houses adjourned and sate not as Houses till they had received satisfaction and restitution of those Members as the Journals of both Houses manifest it being an high breach of their Priviledges contrary to the Great Charter If then the Kings bare not summoning of some Peares to Parliament who ought to sit there by their right of Perage or impeaching or imprisoning any Peere unjustly to disable them to sit personally in Parliament be a breach of the fundamentall Lawes of the Realme and of Magna Charta it selfe confirmed in above 40. succeeding Parliaments then the Lords right to sit vote and Judge in Parliament is as firme and indisputable as Magna Charta can make it and consented to and confirmed by all the Commons people and Parliaments of England that ever consented to Magna Charta though they be not eligiable every Parliament by the freeholders people as Knights and Burgesses ought to be and to deny this birth-right and Priviledge of theirs is to deny Magna Charta it selfe and this present Parliaments Declarations and proceedings in the case of the Lord Kimbolton a member of the House of Peers Fifthly The ancient Treatise intituled * See Cooke â— Justit p. 12. for the Antiquity and for the Authority of this Treatise The manner of holding Parliaments in England in Edward the Confessors time before the Conquest rehearsed afterwards before William the Conqueror by the discreet men of the Kingdome and by himselfe approved and used in his time and in the times of his Successors Kings of England if the Title be true and the Treatise so ancient as many now take it to be determines thus of the Kings and Lords right to be personally present in all Parliaments The King IS bound by all meanes possible TO BE PRESENT AT THE PARLIAMENT unlesse he be detained or let there from by BODILY SICKNESSE and then he may keep his Chamber yet so THAT HELYE NOT WITHOUT THE MANOUR OR TOWNE WHERE THE PARLIAMENT IS HELD and then he ougth to send for twelve persons of the greatest and best of them that are summoned to the Parliament that is two Bishops two EARLES two BARONS two Knights of the Shire two Burgesses and two Citizens to looke upon his person to testifie and witnesse his estate and in their presence he ought to make a Commission and give Authority to the Archbishops of the Peace the steward of England and Cheife Justice that they joyntly and severally should begin the Parliament and continue the same in his name expresse mention being made in that Commission of the cause of his absence then which ought to suffice and admonish the OTHER NOBLES cheife men in the Parliament together with the evident testimony of the twelve Peers of theirs The reason is BECAVSE THERE WAS WONT TO BE A CRY OR MURMVR IN THE PARLIAMENT FOR THE KINGS ABSENCE BECAUSE HIS ABSENCE IS HURTFULL and DANGEROUS TO THE WHOLE COMMONALTY OF THE PARLIAMENT and KINGDOME WHEN THE KING SHALL BE ABSENT FROM HIS PARLIAMENT Neither indeed OUGHT OR MAY HE BE ABSENT BUT ONELY IN THE CASE AFORESAID After which it followes The Archbishops Bishops and other cheife of the Clergy ought to be summoned to come to the Parliament and Also EVERY EARLE and BARON and their PEERS OUGHT TO BE SUMMONED and COME TO THE PARLIAMENT c. Touching the beginning of the Parliament The Lord the King shall sit in the miâ—st of the great bench and is bound to be present in the first and last day of Parliament And the Chancellors Treasurer and Barons of the Eschequer and justices were wont to record the defaults made in Parliament according to the order following In the third day of the Parliament the Barons of the Cinqueports shall be called and after wards the BARONS of England after them the EARLES Whereupon if the Barons of the Cinqueports be not come the Barony from whence they are shall be amerced at an hundred markes and an Earle at one hundred pounds After the same manner it must be done to those who are Peers to Earles and Barons After which it relates the manner of place of the Earles Barons and Peers in Parliament Then addes The Parliament may be held and OVGHT every day to begin at one of the clocke in the afternoone at which time THE KING IS TO BE PRESENT AT THE PARLIAMENT and ALL THE PEERS OF THE KINGDOME None of all the Peers of the Parliament MAY OR OUGHT TO DEPART alone from the Parliament unlesse he have obtained and that in full Parliament leave from the KING and of ALL HIS PEERS so to doe and that with all there be a remembrance kept in the Parliament roll of such leave and Liberty granted And if any of the Peers during the terme of the Parliament shal be sick or weake so as he is not able to come to the Parliament then he ought three dayes together send such as may excuse him to the Parliament or else two Peers must go and view him and if they finde him sicke then he may make a Proxy Of the Parliament the King is the Head the beginning and ending So this ancient Treatise The Statute of 5. R. 2. Parl. 2. ch 4. enacts by COMMAND of the King and ASSENT of the Prelates LORDS and COMMONS in Parliament That all and singular persons and Commonalties which from henceforth shall have the Summons of the Parliament shall come from henceforth to the Parliament in the manner AS THEY BE bound TO DOE and hath been ACCVSTOMED within the Realme of England OF OLD TIME And every person of the said Realme which from henceforth shall have the
Viscounts and Barons who sit there by reason of their dignities which they hold by discent or creation And likewise EVERY ONE OF THESE being of full age OUGHT TO HAVE a writ of summons EX DEBITO JUSTITIAE The third estate are the Commons of the Realme whereof there bee Knights of Shires or Counties Citizens of Cities Burgesses of Burro All which are respectively by the Shires or Counties Cities Buroughs by force of the Kings writ Ex debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realme and trusted for them and are in number at this time 493. Headed And it is observed that when there is best appeareance there is the best succession in Parliament At the Parliament holden in the 7. yeare of H. 5. holden before the Duke of Bedford Guardian of England of the Lords Spirituall Temporall there appeared but 30. in all at which Parliament there was but one Act of Parliament passed and that of no great weight In An. 50. H. 3. ALL THE LORDS APPEARED IN PERSON and not one by Proxy at which Parliament as appeareth by the Parliament Roll so many excellent things were sped and done that it was called Bonum Parliamentum And the King and these three estates are the great Corporation or the body of the Kingdome doe sit in two Houses of this Court of Parliament the King is Caput Principium Finis The Parliament cannot begin but by the Royall Presence of the King either in person or representation by a Guardian of England or Commissioners both of them appointed under the great Seale of England c. And 42. E. 3. Rot. Parl. num 7. It is declared by the Lords and Commons in full Parliament upon demand made of them on the behalfe of the King That they could not assent to any thing in Parliament that tended to the disinherison of the King and his Crowne whereunto they were sworne And p. 35. he hath this speciall observation That it is oâ—served by ancient Parliament men out of Record that Parliaments have not succeeded well in five cases First when the King hath beene in diffeâ—ence with his Lords and with his Commons Secondly When any of the great Lords were at variance betweene themselves Thirdly When there was no good correspondence between the Lords and Commons Fourthly When there was no vnity between the Commons themselves in all which our present Parliament is now most unhappy and so like to miscarry and succeede very ill Fiftly When there was no preparation for the Parliament before it began every of which hee manifests by particular instances From all these and sundry z Judge Hâ—â—rons Argument of Mr. Hampdens case p. 32. 33. Daltons office of Sherriffs other Authorities it is most evident transparent That both the King himselfe and Lords ought of right to be present in Parliament and ever have been so as well as the Commons and neither of them to be excluded since they all make up but one Parliament ought of right and duty to be present at and no Lords and Commons to depart from it without speciall leave under paine of amercement and other penalties because no binding Law can be passed without their joynt consents And that the Commons alone are no more a Parliament of themselves without the King and Lords than the Common Councell of London are an intire Corporation without the Lord Major Aldermen or the Covent without the Abbot the Chapter without the Deane or the leggs or belly a perfect man without the head or neck Sixtly The ancient and constant forme of endorsing Bills in Parliament begun in the Commons House in all Parliaments since the Houses first divided 33. H. 6. 17. Brooke Parliament 4 Cromptons jurisdiction of Courts f. 8. Mr. Hackuel of the manner of passing Bills in Parliament unanswerably demonstrates the Commons of Englands acknowledgment of the Lords right to fit vote assent or disassent to Bills in Parliament viz. SOIT'BAYLE A SEIGNEURS let it be delivered or sent up to the Lords Yea the Commons constant sending up of their own Members with Messages to the Lords and receiving Messages from them and intertaining frequent conferences with them in matters where their opinions differ in which conferences the Lords usually adhere to their dissents unlesse the Commons giveth emsatisfaction and convince them and the Lords oft times convince the Commons so farre as to consent to their alterations of Bills Ordinances Votes and oft to lay them quite afide is an unquestionable argument of their Right to sit and vote in Parliament and of their Negative Voyce too All which would prove but a meer absurdity and superfluity if the Commons in all ages and now too were not convinced that the Lords had as good right to sit and vote in Parliament and a Negative and dissenting voyce as well as they never once questioned or doubted till within this yeare or two by some seditious Disciples of Lilburnes and Overtons entering who endeavoured to evade their justice on them Seventhly This just Right of the Lords is expresly and notably confirmed by all the Commons of England in the Parliament of 31. H. 8. c. 10. concerning the placing and sitting of the Lords and Great Officers of State in the Parliament House made by the Commons consent It being in vaine to make such a Law continuing still till this very day both in force and use if they had no lawfull right to fit and vote in Parliament because they are not elective as Knights and Burgesses are And by the Statute of 39. H. 6. c. 1. made at the Commons own Petition to repeale the Parliament and all proceedings of it held at Coventry the yeare before by practice of some seditious persons of purpose to destroy some of the great Nobles faithfull and Lawfull Lords and Estates meerly out of malice and greedy and unsatiable coveteousnesse to possesse themselves of their lands possessions Offices and goods whereby many great Injuries Enormities and Inconveniences well nigh to the ruine decay and universall subvertion of the Kingdome ensued The very designe of our Lilburnists Sectaries and Levellers now out of particular malice and coveteousnesse to share the Lords and all rich Commoners lands and estates between them being poore and indigent covetuous people for the most part scarce forty of them worth one groat at least before these times This apparent Right of theirs is undeniably ratified and acknowledged not only by the very words of the writs by which the Lords themselves are summoned to the Parliament but even of the writs for election of Knights and Burgesses the forme and substance whereof are ancient and can receive NO ALTERATION NOR ADDITION but by Act of Parliament as b Institutes 4 p. 10. Sir Edward Cooke resolves By this writ the Prelates Nobles and others of the Realme are summoned to the Parliament there to treat and conferre with the King
3. p. 156 157. where his words contradictions in this kinde are receited at larg as appeares by their severall Petitions and Complaints to them upon sundry occasions heretofore by their resorting to them for Justice against Strafford Canterbury and others Yea John Liburne himselfe till his late quarrell with them not onely acknowledged their very power of Judicature but highly applauded their Justice in his owne cause Petitioning and suing to them not onely for reversall of the sentence against him in Starchamber but likewise for dammages and reparations against his Prosecutors â—leading his cause by his Counsell before them as his proper Judges who thereupon by Judgement of the House vacated the Decree against him as illegall voted him Dammages and passed him an Ordinance for the recovery and levying thereof all which he himselfe both published in sundry of his printed Pamphlets wherein he acknowledgeth and extolleth their Justice Take but one passage for all in his Innocency and Truth justified p. 74. 75. If I be transmitted up to the Lords and confidently beleeve I shall get forward out of the former experiences of that Justice that I have found there and I will instance two particulars First when I was a Prisoner in the Fleet and secondly May the fourth one thousand sixe hundred forty one The King accused mee of High Treason and before the Lords barre was I brought for my life where although one Littleton servant to the Prince swore point blanke against mee yet had I free liberty to * He did not then demurr to their Jurisdiction speake for my selfe in the open House And upon my desire that Master Andrewes also might declare upon his Oath what hee knew about my businesse it was done And his Oath being absolutely contradictory to Master Littletons I was both freed from Littletons malice and the Kings accusation at the Barre of the whole House And for my part * Nota. I AM RESOLVED TO SPEAKE WELL OF THOSE THAT HAVE DONE ME JUSTICE and not to doubt THEY WILL DENY IT MEE till such time as by experience I finde they doe it And at that time he was so much for the Lords that he writes most disgracefully derogatorily of the Commons and other his Confederates by his example and of their want of power injustice and proceedings d His â—etter to a friend-Innocency and truth justified His â—etters to the Generall Hen. Martin L. G. Cromwell Englands Birthright See Mr. Edw. Gangraena part 3. p. 146. to 228. quarrells onely with them and their Committees for their delayes and injustice towards him telling them to their faces in many of his former and late printed Libels That they have no power at all to commit or examine him or any other Commoner of England without the Lords nor yet to give or take an Oath That they are but a peece and lowest part of the Parliament not a Parliament alone That they can make no binding Votes Ordinances or Lawes nor commit nor command any Commoner without the Lords and in one or two Pamphlets he endeavours to prove them to be now no lawfull House of Commons at all nor would hee ever acknowledge them to be so and that he would make no more conscience of cutting theirs and the Lords throates the Tyrants and Oppressors at Westminster then of killing so many Weasels and Polcats with many other like scurrilous and mutinous expressions His owne printed Papers Petitions and Actions therefore are an unanswerable confutation of his malicious contradictions of their Authority and judicature since for their exemplary justice on him and he must either now re-acknowledge their right of sitting voting and judging in Parliament to be lawfull or else renounce his owne former Petitions and addresses to them for justice retract all his former printed Papers asserting their Power and judicature and extolling their justice yea disclaime their judgment for vacating his owne Sentence in the Starchamber their awarding him Dammages and passing an Ordinance to recover them as meerly null and voyd being made before no lawfull or competent Judges as now he writes since not elected by the peoples Votes And let those his followers who admire him for his Law observe these his palpable and invincible contradictions and be ashamed and afraid to follow such an ignorant and erronious guide who writes onely out of malice and faction not of judgement as his contradictions evidence 11ly The Acts for preventing the inconveniences happening by the long intermission of Parliaments And to prevent the inconveniences which may happen by the untimely adjourning proroging or dissolving the Parliament made this Parliament and assented to by the King at the Commons importunity confirme the Lords interrest and right to sit and Vote in Parliament beyond all dispute and give them anâ—w power to summone a Parliament themselves in some cases â—â— ly The ancient forme still continued till this day of dismissing Parliaments and dissolving them by the Kings licensive THE LORDS and COMMONS TO DEPART HOME and TAKE THEIR EASE 37. E. 3. n. 34. 38. E. 3. n. 18. 40. E. 3. n. 16. 43. E. 3. n. 34. 45. E. 3. n. 8. 13. 47. E. 3. n. 7. and all Parliaments since proves their right of sitting in and attending the service of the Parliament in person without speciall licence of the King during its continuance in dispite of all ignorant cavils to the contrary Having thus impregnably evinced the Lords undoubted right to sit and vote in Parliament though they be not elective by the peoples voyces as Knights and Burgesses are I shall next discover unto our illiterate Ignoramusses who oppose this their right the justice and good grounds and reasons of our Ancestors why they instituted the Lords and Peers to sit and vote in Parliament by right of their Nobility and Peerage which will abundantly satisfie rationall men and much confirme their right First the Nobles and Great Officers in all Kingdomes and in our Kingdome too in respect of their education birth experience and imployment in State-affaires have alwayes been generally reputed the wisest and best experienced Common-wealths men best able to advise and Councell the King and Kingdome in all matters of Government Peace or War as our Historians Antiquaries Polititians and Records acknowledge and attest whence they were antiently stiled e Mr. Seldenâ— Titles of honour part 3. ch 5. Sir Edward Cookes Epistle to the 9. Report and â— Instit p. 120. 4. Instit p. 2. Cambdens Brit. p. 177. Spelmanni Concil Tom. 1. Aeldermen Wisemen Magnates Optimates Sapientes Sapientissimi Clarissimi viri Conspicui Clarique viri Primates Nobiles c. in our Historians and Records and our Parliaments in that respect are frequently stiled in ancient times Consilium SAPIENTVM upon which Grounds our Kings and * 1. E. 3. n. 36. 55 56. 45 E. 3. n. 15 16. 50 E. 3. n. 10. to 14. 1 R. 2. n. 10. to 27 47 50 51. 112 113. 17 R. 2. c. 1
witnesse Ingulph Beda Huntingdon Mathew Westminster Florentâ—us Wigorniensis Malmesbury Hector Boetius Speed and other in their Histories Antiquitates Ecclesiae Britanicae Spelmanni Concilia Tom 1. Sir Edward Cooke in his Preface to the 9. Report and fourth Institut c. 1. and above all others Mr. Seldens Titles of Honor. part 2. c. 5. Truth triumphing over falsehood Antiquity over Novelty p. 56. to 90. and Mr. Lambert in his Archaion there being little or no mention at all of any Knights of Sbires Citizens or Burgesses in any of our Parliaments and Councels before the Conquest or in the Conquerors time and his next Successors but of Earles Barons Nobles Archbishops and Bishops onely for the most part whom Sir Edward Cooke and others conceive were comprehended under the names of Sapientum or wise men Seniores populi extending to Peers too as they confesse or at least wise under these phrases k Spelman C. p. 194. praesentibus omnibus Ordinibus illius Gentis cum vtris quibusdam Militaribus rather Souldiers than Knights of which we finde mention in the Councel of Beâ—henceld l Spelman Ibid p. 21â— An. 697. or omnium Sapientum Seniorum POPVLORVM totius Regni coupled with these pre-eminent Titles of Omnium Aldermannorum Principum Procerum Comitum who met together in a generall Councell under King Jue An. 713. Or m Spelman p. 318. cujuscunque Ordinis viros in the Conncell of Cloveskro An. 800. which expressions we finde are now and then mentioned in some ancient Councels and Parliaments though rarely And if that of n Hist p. 870. Ingulph and other our Historians and some Lawyers be true which o First institut f. 108. Sir Edward Cooke and p Titles of Honour part 2. â— 5. sec 3. p. 614 615. c. Mr. Selden deny that King Alfred first divided the Realme into Counties as all grant he did into Hundreds and Tithings and erected Hundred Courts wherein Knights of the Shire were alwayes yet are ought to be elected there could be no Knights of Shires at least if any Citizens or Burgesses to serve in Parliament before this division though there were Earles Dukes and Barons before his raigne who were present by the Kings summons not peoples elections at our Parliaments and Generall Councels as q Titles of Honour 2. chap. 5. sec 2. 3. 4. 5. Mr. Selden and r Glossarium Tit. Comitis Comitatus Sir Henry Spelman undeniably manifest Their sitting voting and judging therefore in Parliament being so ancient cleare and unquestionable ever since their first beginning till now and the sitting of Knights Citizens and Burgesses by the peoples election in our ancientest Parliaments and Councells not so cleare and evident by History or Records as theirs we must needs acknowledge and subscribe to their Right and Title or else deny the Knights Citizens and Burgesses rights in Parliament rather than theirs who have not so ancient nor cleare a Title or right as they Fourthly This Right and Priviledge of theirs is vested legally in them by the very Common-Law and Custome of the Realme which binds all men the unanimous consent of all our Ancestors all the Commons of England from age to age assembled in Parliament since we had any Parliaments who alwaies consented to desired and never once opposed the Lords sitting voting power or Judicature in Parliament and by Magna Charta it selfe wherein they are first mentioned and provided for Hereupon King Henry the third not long after Magna Charta was granted and at the same time it was proclamed and confirmed with a most solemne Excommunication in the presence of all the Lords and Commons by all the Bishops of England against the infringers thereof summoning a Parliament at London in the yeare 1255. to ayde him in his warrs in Apulia the Earles and Barrons absolutely refused to give him any assistance at all not onely because he had undertaken that warre without their advice but also for this reason Å¿ Math. Paris An. 1255. p. 884 885. Daniel p. 172 That ALL THE BARONS were not summoned by him to this Parliament AS THEY OUGHT TO BE ACCORDING TO THE TENOR OF MAGNA CHARTA whereupon they departing in discontent and refusing to sit longer the Parliament was disolved t Mr. St. Johns Speech concerning Shipmony p. 33. 1. H. 4. n. 21. 22 25. 36. And upon this very ground among others the Parliament of 21 R. 2. with all the Acts and proceedings therein were repealed and nulled by the Parliament of 1. H. 4. because the Lords who adhered to their King were summoned by him to the Parliament and some of the opposite party imprisoned impeached and omitted and many Knights of the shire were onely elected by the Kings nomination Letters to the Sheriffes And the Parliament it self kept by force viris armatis sagittarijs minensis brought out of Cheshire as an extraordinary guard quartered in the Kings Court at Westminster and about Charing Crosse and the Muse of which u Chron p 389. 390. Grafton and other Historians writes thus That they fell suddenly into so great pride of the Kings favour that THEY ACCOVNTED THE KING TO BE AS THEIR FELLOW and THEY SET THE LORDS AT NOVGHT yet few or none of them were Gentlemen but taken from the plough and Cart and other Crafts And after these rusticall people had a while courted they entred into so great a boldnesse that they would not let neither within nor without the Court to beat and slay the Kings good subjects to take from them their victualls and pay for them little or nothing at their pleasure as our free-quarterers doe now falling at last to ravish mens wives and daughters And if any man fortuned to complaine of them to the King he was soone rid out of the way no man knew how or by whom so as they did what they listed the King not caring to doe justice upon them but favoring them in their misdoings confiding in them and their guards against any others of the Kingdome which gave Lieges of his Kingdome great matter of commotion and discontent The bringing up of which guard to Westminster to force and overawe the Parliament to effect his owne designes is one principle Article exhibited against him by the Parliament for which he was deposed I pray God our New armed Guard and Courtiers at Whithall and the Muse of as meane condition as those fall not by degrees to the selfesame exorbitances contempt of the King Lords Parliament and oppression of the people to their generall mutining and discontent In the Parliament of 6 E. 3 N 1. Parl. 2. N. 5. 6. 8. 9. and most of the ensuing Parliaments in this Kings reigne and in divers Parliaments in Ric. 2. Henry 4. c. 5. 6. was found in the Parliament Roules that the Parliaments have beene proroged and adjourned from the dayes they were summoned to meet and have not sate nor acted
said Sommons be he Archbishop Bishop Abbot Prior DUKE LORD BARON Baronet Knight of the Shire Citizen of City Burgesse of Burgh or other singular person or Commonalty do absent himselfe or come not at the said Summons except he may reasonably or honestly excuse himself to our Soveraigne Lord THE KING HE SHALL BE AMERCED and OTHERWAYES PVNISHED ACCORDING AS OF OLD TIME HATH BEEN USED TO BE DONE within the said Realme in the SAID CASE Which relates unto and agrees expresly with that forecited out of Modus tenendi Parliamentum If then all the Judges and Peares in Parliament are bound to attend the Parliament not to depart without the Kings and Houses leave under paine of Amercement and other punishment as this Statute resolves and 3. Ed. 3. 19. Fit 2. Câ—ron 161. Stamford l 3. c. 1. f. 153. Cooke Instit p. 15. 16. 17. 43 18. E. 3. Mo. 1. 2 8. and 31. H. 6. n. 46. What fine were imposed on absent Lords manifest then questionlesse they ought of right to sit in Parliament else it were the height of Injustice thus to fine them In the tenth yeare of King â— * Grafâ—oâ—â— Cron. p. ◠〈◊〉 350. 2. this King absented himselfe from his Parliament then sitting at Westminster residing at Eltham about forty dayes and refusing to come to the Parliament and yet demanding from them foure fifteenes for maintenance of his Estate and outward Wars Whereupon the whole body of the Parliament made this answer THAT VNLESSE THE KING WERE PRESENT THEY WOULD MAKE THEREIN NO ALLOWANCE Soone after they sent the Duke of Gloucester and Bishop of Ely Commissioners to the King to Eltham who declared to him among other things in the Lords and Commons behalfe how that by AN OLD ORDINANCE THEY HAVE AN ACT if the King absent himselfe 40. dayes not being sicke but of his owne minde not heeding the charge of his people nor their great paines and will not resort to the Parliament they may then lawfully returne to their Houses And now sir said they you have beene absent a longer time and yet refuse to come amongst us which is greatly to our discontent To which the King answered Well we doe consider that our owne people and Commons goe about to rise against vs wherefore we thinke wee can doe no better then to aske ayd of our Cosen the French King and rather to submit us to him then unto our owne subjects The Lords answered Sir that Counsell is not best but a way rather to bring you into danger c. By whose good perswasions the King was appeased and Promised to come to the Parliament and condiscend to their Petitions and according to his appointment he came and so the Parliament proceeded which else had dissolved by the Lords departure thence in discontent and the Kings wilfull absence Andrew Horne in his Mirrour of Justices in the raigne of King Edward the first writes That our Saxon Kings divided the Realme into 38 Counties over which they set so many Counts or Earles and though the King ought to have no Peers in his land but PARLIAMENTS all Writs and Plaints of the Moneys of the King Queene and their Children and of those especially who otherwise could not have common right of their wrongs These Companions are now called Counts after the latine word Comites For to the Estates of the Realme King Alfred assembled the COVNTS or Earles and ordained by a Perpetuall Law that twice a yeare or oftner they should assemble at London in Parliament to consult of the Government of the people of God Fleta l. 2. c. 2. p. 66. writes thus in the same Kings raigne Habet enim Rex curiam suam in concilio suo in Parliamentis suis PRAESENTIBUS Praelatis COMITIBUS BARONIBUS PROCERIBUS alijs viris peritis vbi terminatae sunt dubitationes judiciorum moris injuriis eversis nova constituuntur remedia And l. 17. c. 17. he writes thus Rex in populo regendo superiores habet Vidilicet legem perfactus est Rex Curiam suam to wit of Parliament videlicet COMITES BARONES Comites enim a Comitia dicuntur qui cum viderint Regem sine froeno Froenum sibi apponere TENENTVR ne clament sabditi Domine Jesu Christe in Chamo froeno maxillas eorum constringe Sir Thomas Smith in his Common-wealth of England * Bracton l. 2. c. 〈◊〉 l. 3. c 9. 〈◊〉 the like in the same words in Henry the 3. his reigne l. 2. c. 1. John Vowel and Ralph Hollinshed vol. 1. c. 6. p. 173. Mr. Cambden in his Britania p. 177. John Minshew in his Dictionary vuell in his Interpreter Title Parliament Powell in his Attornyes Academy and others unanimously conclude That the Parliament consisteth of the KING the LORDS SPIRITVALL and TEMPORALL and the Commons which STATES represent the body of all England which make but one assembly or Court called the Parliament and is of all other the Highest and greatest Authority and hath the most high and absolute power of the Realme And that no Parliament is or can be holden without the King and Lords Mr. Crompton in his Jurisdiction of Courts affirmes particularly of the High Court of Parliament f. 1. c. This Court is the highest Court of England in which the King himself fits in person and comes there at the beginning and end of the Parliament and AT ANY OTHER TIME WHEN HE PLEASETH ORDERING THE PARLIAMENT To this Court come ALL THE LORDS OF PARLIAMENT as well spirituall aâ— temporall and are severally summoned by the Kings writ at a certaine day and place assigned The Chancellour of England and other great officers or Judges are there likewise present together with the Knights Citizens and Burgesses who all ought to be personally present or else to be amerced and otherwise punished if they come not being summoned unlesse good cause be shewed or in case they depart without the Houses or Kings speciall license after their appearance before the Sessions ended And he resolves that the King Lords and Commons doe all joyntly make up the Parliament and that no Law nor Act of Parliament can be made to binde the subject without all their concurrent assents Sir Edward Cooke not onely in his Epistle before his ninth Report and Institutes on Littleton p. 109. 110. But likewise in his 4. Institutes published by Order of this present Parliament c. 1. p. 1. 2 c writes thus of the high Honorable Court of Parliament This Court consisteth OF THE KINGS MAJESTIE sitting there as in his royall politick capacity and of the three Estates of the Realme viz. Of the Lords Spirituall Archbishops and Bishops being in number 24. who sit there in respect of their Counties or Barronies parcell of their Bishopricks which they hold also in their politick capacity and every one of these when the Parliament is to be holden ought exdebito Justitiae to have a writ of summons The LORDS TEMPORALL Dukes Marquesses Earles
safety The rather for that the very Act made this Parliament for the preventing of inconveniences happening through the long intermission of Parliaments not onely enacts but requires all the Lords and Barons of this Realme to meet and sit in every Parliament under a penalty but likewise prescribes an Oath to the Lord Keeper and Commissioners of the Great Seale under severe penalties to send forth Writs of Summons to Parliament to them all and in his default enabled and enjoyned the Peeres of the Realme or any twelve or more of them to issue forth Writs of Summons to Parliament under the Great Seale of England for the electing of Knights Citizens and Burgesses which Act will be meerly void and nugatory if their Votes and Right of sit in Parliament be denyed or the House of Peeres reduced to the House of Commons which this very Statute doth distinguish The Kings and Lords sole right of Judicature in Parliament without Commons cleerly evidenced The Lords Jurisdiction and undoubted Right to sit and Vote in Parlâ—ament being cleerly evicted and undâ—â—â—ably manifested by the Premises I shall next proceed to make good their Jurisdiction and lawfull Right of Judicature never questioned nor disputed till of late without the Commons concurrence To avoid mistakes and clear all scruples you must take notice that there is a two-fold proceeding in Parliament by way of Judicature and Censure First by Bill of Attainder and therein the King Lords and Commons must all concurre because such Judgement is given extrajudicially only by the Legislative power wherein the Commons have of Right a Vote and consent as well as the King and Lords and in this course of proceedings the King and Lords alone can doe nothing judicially without the Commons no more then make an Act of Parliament without them Of this kindâ— of Judgement and Attainder by Bill wherein the King Lords and Commons joyntly concurre there are sundry presidents both in cases Trespas Felony Treason and the like in our printed Statutes 1 H. 4. c. 6. compared with 9 H. 4. Exilium Hugonis de Spencer 15 E. 2. 1 E. 3. prologue and c. 2. 11 R. 2. c. 1 2 3. 5 6 7. 21 R. 2. c. 10 11 12. 9 H. 6. c. 3. 19 H. 6. c. 1. 3â— H. 6. c. 1. 25 H. 8. c. 12. 28 H. â— c. â—8 33. H. â— c. 21. 32 H. 8. c. 25. 2 and 3 E. â— c. 17 18. 1 Mar. c. 1. 16. â—â— Eliz. c. 1. 3. 3 Jac. c. 2. to which the Attaindors of the Earl of Strafford by Bill and Arch-bishop of Canterbury this very Parliament may be added Besides other presidents in the q See Plac. Coronae in Parl. 33 E. 1. Rot. 17. 22 John de Segraves case Plac. Corenae in Parl. 21 R. 2. n. 1. to 27 31 H. 6. n. 45. 64. 38 H 6. n. 9. to 26. Parliament Rolls many of which are cited by Sir Edward Cooke in his 3 Institutes c. 1. â— and M. S. John in his Argument as Law concerning the Bill of Attainder of High Treason of Thomas Earl of Strafford printed by Order of the Commons House Anno 1641. The like Presidents are extant in the Statutes of Ireland 28 H. 8. c. 1. for the Attainder of the Earl of Kildare and others 11 Eliz. c. 1. For the Attainder of Shan◠〈◊〉 and others â—3 Eliz. c. 6 and 7. For the Attainders of John 〈◊〉 Gerald and others An. 27 Eliz c. 1. For the attainder of James Eustuce and others 28 Eliz. c. 8 9. For the Attainders of the E. of Resmond John Brown and others 11 Jac. c. 4. For the Attainder of the Earl of Tyroâ—â— and others Secondly there is a formall Judgement given in Parliament in Causes civill and criminall upon Writs Petitionsâ— Indictments informations or Impeachments and that either against or between Peers themselves or against or between Commons who are â—â— Peers in both which the Lords have a proper Judiciary power without the Commons That they have such a legall and sole Judicatory in the case of Peers is * Cookes Instit on Magna Charta c. 14. 29. 3 Instit c. 1 2. 1 H. 4. 1. Stamf. l. 3. c. 1. 10. E. 4. 6. Bro. Triall 142. Treason 33. 29. 13 H. 8. 11. acknowledged by all who neither may nor ought by Law to be cryed or judge for any Treason or criminall cause unlesse in cases of †10 E. 4. 6. Coronae 34. Cooke 2. Instit p. 49. Triall Bro. 142. Appeale at the suit of the subject but only by the lawfull judgement of their Peers by the expresse provision of r Ch. 14. 29. 20 H. 6. c. 9. 26 H. 8. c. 12. 1 El. c. 1. 5. 5 El. c. 11. and diverse other Statutes See Ashes Tables Coâ—onae 84. Challenge 65. and 8. Magna Charta with sundry other Statutes and by the very Common Law This right of theirs in case of Peers is cleerly evident by the Judgement given in against Earl Goodwin in a Parliament under K. Edward the Confessor before the Conquest An. 1052. recited at large in M. Seldens Titles of Honour Part 2. c. 5. p. 634 635. in the Tryall of Roger Earle of Hereford in the 8. yeare of William the Conqueror who was sued and found guilty of Treason by his Peers Cooke 2. Institut p. 50. by the Judgement given in the Parliament of Northampton against Becket Arch-bishop of Canterbury which you may read at large in Stephanides * M. Selden by the answer of Will. du Breose to K. Johns Ministers Paratus sum ero Domino meo sine obsedibus satisfacere secundum Judicium Curiae suae BARONVM Parium meorum Which right of theirs is asserted by Sir E. Cook himself and proved at large in his 2 Institutes on Magna Charta c. 14. 29. in his 3 Institutes c. 2. where p. 31. he writes thus A Peer of the Parl being indicted of Treason or Felony or of misprision and duly transmitted to the Lords may be arraigned thereof in the upper House of Parl. As FREQUENTLY IN PARL †Titles of Honouâ— Part 2. c. 5. p. 705. 706 707. ROLLS IT DOTH APPEAR As Rot. Parl. 21 R. 2 Plac. Cor. nu 2 to 7. the Earl of Arundels case Rot. Parl. 5 H. 4. nu 11 12. 13. H. 6. nu 49. Earl of Dovers case 28 H. 6. nu 19. 50 51 52. Duke of Suffolks case To which might be added 7 R. 2. nu 22 c. The Bishop of Norwich case for delivering Gravelin to the Enemy Placita Corona in Parl. 21 R. 2. num 1 to 26. Rot. Parl. 50 E. 3. nu 27. The Lord Latymers case 2 H. 6. Rot. Parl. nu 18. The Impeachments of the Commons this Parliament against the E. of Strafford and Arch-bishop of Canterbury who were prosecuted by the Commons not tryed only by and before the Lords as their proper Judges and Peers See 4 E. 3. nu 14. 15 E. 3. nu 6. 8. 44 45. 51. 17
Domino Rege in Parliamente sue at the end of each Parliam Roll wherein the King and Lords or only the King and Lords alone generally gave Iudgement of imprisonment fine banishment and death it self even against CoÌ„moners themselves without the Commons the thing now principally controverted and denied for proof whereof I shall cite some few punctuall presidents and records in stead of many which might be insisted on In the famous Parl held at Claredon x Mat. Paris p. 6 97. M. Seldens Titles of Honor part 2. c 5 p. 703. 705 under K. Hen. 2. 〈◊〉 D. 1164. there was a recognition made of all the ancient Customs of the Realm which all the Prelats Abbots Earls Barons and Nobles swore firmly to observe to the King and his Successors whereof this was one That the Arch-b Bishops and other Clergy men who held of the King in Capite by Barony Sicut caeteri Barones debent interesse JVDCIIS CVRIAE REGIS CVM BARONIBVS * Petrus Blesâ—sis De Instit Episcopi Bibl Patrum tom 12. par 2. p. 447 quousque perveniatur AD DIMINVTIONEM MEMBRORVM VEL AD MORTEM which proves the power and right of Iudicature even in those times and long before to be setled in the Barons as well in Parliament as in the Sheriffs Tourne and that in case of Commoners as Peers In the Parliament of 4. E. 3. num 1. 2. 3. 4. 5. Roger Mortimer Earle of March a Peer Sir Simon Bereford Knight of Councell and assistant to the said Earle John Mautravers Bose de Bayous and Iohn Deverall for being guilty of the death of Edward Earle of Kent Thomas Gournay VVilliam of Ocle for murthering King Edward the second after his deposition were attainted and condemned of High treason and some of them then in cuâ—â—odie accordingly executed by Iudgement of the Lords and Peeres alone who AS JUDGES OF THE LAW by the Kings consent gave judgement of death against them as the Parliament Rolls more largely relate It is true indeed that after these Judgements given the LORDS the same Parliament num 6. entred this Protestation * See Cooke 2. Instit p. 50. That alboit the Lords and Peers of the Realme AS JUDGES OF THE PARLIAMENT in the presence of the King had taken upon them to give Judgement of such who were NO PEERS OF THE REALM that he eafter NO PEERS should be compelled to give Judgement ON ANY OTHERS WHO WERE NOT THEIR PEERS according to the Law From this Protestation of the Lord which Lilburne principally insists on hee and * Cooke 2. Instit p. 50. some others conolude that the Peers in Parliament have no right at all to imprison fine judge or passe sentence of death against any Commoner for any offence no not for breach of their own Priviledges but only the Commons To which objection I answer First that this is no Act of Parliament as Sir Edwards Cooke mistakes but a bare Protestation of the Lords without Kings or Commonâ— assent and that neither the House of Commons nor the Commoners then attainted of Treason and judged to death by the Lords ever demurred or excepted against their Jurisdiction as Lilburne and Overton doe but acknowledged and submitted to it Secondly That in this very Protestation the Lords professe and justifie their right of BEING JVDGES in Parliament without admitting or acknowledging any joynt or sole right of Judicature with them in Parliament in the Commons Thirdly That this Protestation was meerly voluntary not in derogation but preservation of their own Honour and Peerage and the Parliaments too and the substance of it no more then this That the Lords in Parliament should not bee constrained against their wills by the Kings command and in his presence to give judgement of death in ordinary cases of treason or Felony in the high Court of Parliament against such who were no Peers who in such caseâ— * Magn. Ch. c. 29. 25. E. 3. c. 2. 4. 28. E. 3. c. 3. 37. E. 3. c. 8. 42. E. 3. c. 3. Cooke 2. Instit p. 50 51. by the Law might and ought to be tried in the Kings Courts at VVestminster or before the Iustices of Oyer and Terminer by a Iury of their equalls but onely in such cases which could not well be tried else-where and were proper for their Judgement in Parliament This is the whole summe and sence of their protestation To argue therefore from hence That they cannot passe sentence or judgement against any Commoners in any case proper for their Judicature in Parliament because they protested only against being COMPELLED to gâ—ve Judgement against such as were no Peers in cases triable else-where and not proper for their tribunall as the Objectors hence conclude is quite to mistake their meaning and to speak rather non-sence then reason or Law Fourthly This Protestation was made only against the Lords giving sentence in Felony and Treason and that in the Kings own presence in Parliament who usually pronounced the Judgement himself with the Lords assent and did not charge the Lords to pronounce it as here hee did not against sentencing fining and imprisoning any Commoner for rayling and Lybelling against their Persons Jurisdiction and proceedings refusing to answer and contemning their Authority to their faces at the Barre and appealing from their Judicature in case of breach of Priviledge of which themselves alone and no others are or can be Judges the case of Lilburne and Overton whose commitments are warranted by hundreds of Presidents in this and former Parliaments Therefore for them to apply this Protestation to their cases with which it hath no Analogy is a manifestation of their injudiciousnesse and folly rather then a justification of their Libellous Invectives against the Lords injustice Lastly this Protestation did not foreclose the Lords in this or future Parliaments to give Judgement against Commoners in other cases of Felony and Treason even without the Commons To prove this by some instances In the Parliament of 1. H. 4. Placita Coronae num 11. to 17. Iohn Hall being in custody of the Marshall of England and brought by him before the Lords in Parliament and there charged by him by VValter Clâ—pton Lord chiefe Justice by the Kings command with having a hand in the murther of the Duke of Glocester who was smothered to death with a featherbed at Calayes by King Richard the seconds command the whole relation whereof he confessed at large and put in writing before James Billing ford Clerk of the Crown which was read before the Lords upon reading whereof the King and ALL THE TEMPORALL LORDS IN PARLIAMâ—NT resolved that the said Iohn Hall by his own confession deserved to have as hard a death as they could adjudge him to because the Duke of Glocester was so high a Person and thereupon TOVTE LES SEIGNEIURS TEMPORELZ per assent du ROY ADJVGGERâ—Nâ— all the temporall Lords by assent of the King AJVDGED that the said Joh. Hall should be drawn from Tower
hill unto the Gallows at Tiburn there kenelled his bowels laid before him and after he should be hanged beheaded and quartered and his head sent to Calayes where the murther was committed and his quarters sent to other places where the King should please and thereupon command was given to the Marshall of England to make execution accordingly and it was so done the same day Lo here the Lords in Parliament gâ—ve judgement against a Commoner in case of a murther done at Calayes and so not triable at the Kings Bench but in Parliament and passe a judgement of High treason on him for murthering of a great Peere only And which is most remarkable all the Commons In this very Parliaments of 1 H. 4. nu 70. Nov 3. made their Protestation and further remonstrated to the King Nota. Com LES JVGGEMENTS DV PARLEMENT APEIRTEIGNENT SOVLEMENT AV ROY ET AS SEIGNEIVRS ET NIENT AS COMMVNES how the judgement of the Parl. appertained ONLY TO THE KING and TO THE LORDS and NOT VNTO THE COMMONS except in case it should please the King OF HIS SPECIALL GRACE to shew unto them the said JVDGEMENTS purcase de eux que null record soit fait in Parlement encoutreles ditz Communes quill soit ou serront parties ascunes juggements donez ouadoues en Apres in Parlement Whereunto it was answered by the Archbish of Canterbury by the Kings command how the said Commoners are petitioners and demanders and that THE KING THE LORDS de tont temps ont eves et aueront DE DROIT LES JVGGEMENT EN PARLEMENT en manere come me me les communes ount monstres HAVE ALVVAYES HAD AND SHALL HAVE OF RIGHT THE JVDGEMENTS IN PARLIAMENT in manner as the Commons themselves have declared except in making Statutes or in making Grants and Subsidies or such things for the common profit of the Realm wherein the King will have especially their advice and assent and that this order of proceeding shall be held and kept IN ALL TIMES TO COME By which record in Parliament it is apparent by the House of Commons own confession First that the Judgements in Parliament even in cases of Commoners appertain ONLY TO THE KING and LORDS in the affirmative Secondly that they appertain NOT TO THE COMMONS in the negative Thirdly that the King and LORDS HAVE ALWAYES HAD and ENJOYED THE RIGHT of Judgements in Parliament Fourthly that they should alwayes hold and enjoy this Right IN ALL TIMES TO COME Fifthly that the Commons speciall advise and assent was and is required by the King in Parliament only in making of Statutes Grants and Subsidies and such like things for the common profit of the Realm So full and punctuall a Parliamentary decision of the present controversie as is uncapable of any answer or evasion In the Parliament Roll of 17. y See Cook 3. Instit c. 2. p. 22. R. 2. num 20. 21. John Duke of Gayen and of Lancaster Steward of England and Thomas Duke of Glocester Constable of England the Kings Uncles complained to the King that Thomas Talbot Knight a Commoner and no Peere with other his adherents conspired the death of the said Duke in divers parts of Cheshire as the same was confessed and well known and prayed that the Parliament might judge of the faulâ— to wit whether it were treason according to the clause of the Statute of 25 E. 3. c. 2. It is accorded that if any other case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without any going to judgement of the Treason till the cause be shewed and declared before the King and His Parliament whether it ought to be judged Treason or Felony whereupon the KING and THE LORDS IN THE PARLIAMENâ— without the Commons though in case of a Commoner ADJVDGED THE SAME FACT TO BE OPEN and HIGH TREASON and thereupon they award two writs the one to the Sheriffes of Darby to take the body of the said Sir Thomas retornable in the Kings Bench in the moneth of Easter then next following and open Proclamation was made in Westminster Hall upon the Sheriffes return and the next coming in of the said Sir Thomas that the same Thomas SHOVLD BE CONVICTED OF TREASON and incurre the losse and pain of the same and that all such as should receive him after the same Proclamation should incurre the same losse and paine Sir z 3. Instit p. 22. Edward Cooke relating this Judgement addes his own opinion at the end That this judgement wanting the assent of the Commons was no Declaration of Treason within the Act of 25. E. â— because it was not by the King and his Parliament according to this Act but by the King and Lords ONLY But the record of Parliament and the Judges and Commons then admitted it to be good and processe issued out and judgement was given accordingly the parties concerned taking no such exceptions to it See 21. R. 2. n. 15. 16. So that this Record is a pregnant evidence That the King and Lords are the sole Judges in Parliament in the case of Commoners even in declaring and judging what is or what is not treason within the Statute of 25. E. 3. because the Commons are no Iudges in Parliament and so cannot Iudge or declare unles in a legislative way by Act of Parliament what is Treason or Pelony but the King and Lords alone To put this out of question I shall cite one notable record more to this purpose a Cooke 3. Instit p. 22. c. 1. p. 10. In the Parliament of 5. H. 4. 11. 12. on the 8. of February the Earle of Northumberland came before the King Lords and Commons in Parliament and by his Petition to the King acknowledged that he had done against his Lawes and alegiance and especially for gather of power and giving of Liveries for which he put himselfe upon the Kings grace and prayed pardon the rather for that upon the Kings Letters he yielded himselfe and came to the King at Yorke whereas he might have kept himselfe away Which Petition by the Kings command was delivered to the Justices to be examined and to have their counsell and advice therein Whereupon the LORDS made a Protestation que le Juggement appertient aeux tout soulement THAT THE JUDGEMENT APPERTAINED ONLY TO THEM And after the said Petition being read and considered before the King and the said Lords as Peers of Parliament a queux tells â—uggementz apperteignent DE DROIT TO WHOM SUCH JUDGEMENT APPERTAINED OF RIGHT having had by the Kings command competent deliberation thereupon and having also heard and considered as well the Statute made in the 25. yeare of King Edward the Kings Grand-father that now is concerning the Declaration of treason as the Statutes of Liveries made in this Kings raigne ADJUDGED that that which was done by the said Earle contained within his Petition was neither Treason nor Felony but Trespas for which
not reporting him to the advice of the Lords nor by way of judgement for he is not in place of judgement putteth you to his rule and governance that before the first of May next comming hee should absent himselfe out of the Kingdome of England and all other his Dominions in France or elsewhere for five yeares space and that hee nor no man for him should shew or waite any malice nor hate to any person of what degree soever of the Commons in the Parliament in no manner of wise for any thing done to him in this Parliament or elsewhere And forthwith Viscount Peamont in behalfe of the said LORDS both Spirituall and Temporall and BY THEIR ADVICE ASSENT AND DESIRE said and declared to the Kings Highnesse that this that so was decreed and done by his Excellencie concerning the person of the said Duke PROCEEDED NOT BY THâ—IR ADVICE AND COVNSELS but was done by the Kings owne demeanour and rule Wherefore they besought the King that this their saying MIGHT BE ENACTED IN THE PARLIAMENT ROLL FOR THEIR MORE DECLARATION HEREAFTER WITH THIS PROTESTATION THAT IT SHOVLD NOT BE NOR TVRNE IN PREJVDICE NOR DEROGATION OF THEM THEIR HEYRS NE OF THEIR SVCCESSOVRS IN TIME COMMING but that they may HAVE AND INJOY THEIR LIBERTY AS THEY OR ANY OF THEIR ANCESTORS PREDECESSORS HAD AND ENIOYED BEFORE THIS TIME This is the sum of this large record which makes nothing to the purpose for which it is cited that it is errour when both Houses joyne not in â—udgement For first here is nothing but an impeachment onely by the Commons of a Peere who ought to be tryed judged by his Peerage not by Commoners Secondly there was no judgement given in Parliament in this case but only a private Award made by the King out of the Parliament House in his owne Chamber in presence of the Lords Thirdly the Lords entred a speciall protestation against it as not made by their advice or consent Fourthly they enâ—er a speciall claime in the Parliament Roll for the preservation of their Right and Freedome of Peerage for hereafter both of being tryed and judged onely by their Peeres in Parliament and so an expresse resolution that they in Parliament are and ought to be Iudges not the Commons The last Records I have cited at large lest Sir Edward Cookes briefe quotation and mis-recitall of them should deceive the credulous or ignorant Reader Eighthly the cases of Sir Giles Monpesson Sir John Michell Viscount S. Alban and the Earle of Middlesex whom the Commons onely impeached and the Lords alone without the Commons votes or presence judged and sentenced are direct proofes that the power of Iudicature and Censure as well of impeached Commoners as Lords resides onely in the Lords House the Commons being but generall Inquisitors to search out and present both Lords and Commoners publike offences to the Lords to whom they transmit the charge and witnesses the Lords the onely Iudges to heare and determine the charge examine the witnesses upon oath and passe and record the sentence and see it executed and no more Iudges in the Parliament then the grand enquest are Iudges at the Assizes or Sessions The second and principall objection insisted upon by that Ignoramuâ— Object 2. Lilburne and his disciples the Levellers is the Statute of Magna Charta chap. 29. That no Free man shall be imprisoned outlawed exiled or any other way destroyed Nor we shall not passe upon him nor condemne him but BY THE LAWFVLL IVDGMENT OF HIS PEERES or BY THE LAW OF THE LAND Whence thus they argue The Lords in Parliament are not Commoners Peers but the Commons only therefore they cannot be judged in Parliament by the Lords but by the Commons alone and if Peers there judge Commoners it is a tyranny and usurpation even against Magna Charta it selfe though it be in case of priviledge To take away this grand seeming objection Answ and give it a satisfactory answer I say First in generall that there is scarce one Parliament ever since Magna Charta was first confirmed but the Lords have sentenced and given judgment against some Commoners capitally or penally in body or purse or both without the Commons and did so doubtlesse before Magna Charta was made as I have already manifested yet never did the Commons in any one of those Parliaments till this present complain of it as a violation of Magna Charta or a tyrannicall usurpation as Lilburne and Overton stile it but acknowledged it as a just right in the Lords even in 3. Caroli it selfe when the Petition of Right was passed in the Lords Iudgment and Sentence against Doctor Manwaring a Commoner impeached by the Commons And therefore for this one Ignoramus alone against the judgements of all the Commons in Parliament in all ages to averre this a breach of Magna Charta for imprisoning and fining him for the highest affront and breach of priviledge over offered to any Parliament is the extremity of ignorance malice and singularity Secondly I answer that the Statute of Magna Charta extendeth not to nor was ever intended of the high Court of Parliaments Iudgements and Proceedings but onely to the proceedings and Iudgements in the Kings great Courts of Iustice at Westminster Hall the Exchequer his Privy Councell and other inferiour Courts held before Judges Iustices of Assize and other Officers as is evident by comparing this objected Chapter with c. 11 12 13 14 18. 28 â—0 3â— 37. by the Statutes of 25. E. 3. Stat. 5. c. 4. 28. E. 3. c. 3. 37. E. 3. â— 18. 38. E. 3. c. 9. 42. E. 3. c. 3. 17. â—2 c. 6. and the Petition of Right it selfe 3. Caroli which so expound it there being never any complaint against the Parliament it selfe or House of Peeres in any age for breach of Magna Charta in censuring or imprisoning Commoners till now Therefore this misapplying of this Law to the Parliament and House of Peers is a grosse oversight Thirdly the very literall sence of this Law is much mistaken by the Objectors For that any Freeman of England is a Peer to another Freeman quatenus such a one within this Law though of an higher degree in point of honour dignity office and estate and this clause * 〈…〉 No Freeman shall be imprisoned and but by the lawfull judgement of his Peers extends onely to exclude villaines and those who are not Freeholders from being Iudges of Freemen and Freeholders in tryalls by Iury whence the Writs to the Sheriffes to summon Iurors require them alwayes to returne Liberos Legales homines not to exclude Lords or Peeres who are Freemen in the higest degree to be Iudges of Commoners who are Freemen So as the Argument from the true meaning of this Law can be but this villaines and those who are no Freemen are not to be Iudges or impannelled in Iuries to condemne Freemen because they are not their Peeres nor Freemen as well as they Therefore