be both Judge and Party it behoveth of Right that the King should have COMPANIONS for to hear and determine IN PARLIAMENTS all Writs and Plaints of the Wrongs of the King of the Queen and of their Children and of those especially who otherwise could not have common right concerning their wrongs These Companions are now called Counts after the Latine word Comites For the good Estate of the Realm King Alfred assembled the COUNTS or Earls and ordained by a Perpetual Law that twice a year or oftner they should assemble at London in Parliament to consult of the Government of the people of God c. By which Estate or Parliament many Laws and Ordinances were made which be there recites Bracton l. 1. c. 8. l. 2. c. 16. l. 3. c. 9. in Henry the 3d. his reign and Fleta l. 2. c. 2. p. 66. write thus in Edw. the first his reign in the same words Habet enim Rex cuâ—iaÌ„ suam in concilio suo in Parliamentis suis PRAESENTIBUS Praelatis COMITIBUS BARONIBUS PROCERIBUS aliis viris peritis ubi terminatae sunt dubitationes judiciorum novis injuriis emersis nova constituuntur remedia And l. 17. c. 17. he writes thus Rex in populo regendo superiores habet Videlicet Legem per quam est Rex Curiam suam to wit of Parliament videlicet COMITES BARONES Comites enim à Comitia dicuntur qui cum viderint Regem sine froeno Froenum sibi apponere TENENTVR ne clament subditi Domine Jesu Christe in Chamo froeno maxillas eorum constringe Sir Tho. Smith in his Commonwealth of England l. 2. c. 1. John Vowel and Ralph Holinshed vol. 1. c. 6. p. 173. Mr. Cambden in his Britannia p. 177. John Minshaw in his Dictionary Cowel in his Interpreter Title Parliament Powel in his Attorneys Accademy and others unanimously conclude That the Parliament consisteth of the KING the LORDS SPiRITUAL and TEMPORAL 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 Realm And that no Parliament is or can be holden without the King and Lords Mr. Crompton in his Jurisdiction of Courts affirms particularly of the High Court of Parliament f. 1. c. This Court is the highest Court of England in which the King himself sits 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 Spiritual as temporal and are severally summoned by the Kings writ at a certain day and place assigned The Chancellor 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 unles good cause be shewed or in case they depart without the Houses or Kings special 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 bind the subject without all their concurrent assents Sir Edward Cook not only in his Epistle before his ninth Report and Institutes on Littleton p. 109 110. But likewise in his 4. Institutes published by Order of the Commons themselves this present Parliament c. 1. p. 1 2. c. writes thus of the high and Honourable Court of Parliament This Court consisteth OF THE KINGS MAJESTIE sitting there as in his royal politick capacity and of the three Estates of the Realm viz. Of the Lords Spiritual Archbishops and Bishops being in number 24. who sit there in respect of their Counties or Baronies parcel of their Bishopricks which they hold also in their politick capacity and every one of these when the Parliament is to be holden ought ex debito Justitiae to have a writ of summons The LORDS TEMPORAL Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their dignities which they hold by descent 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 Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Boroughs All which are respectively elected by the Shires or Counties Cities and Boroughs 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 Realm and trusted for them and are in number at this time 403. He adds And it is observed that when there is best appearance there is the best successe in Parliament At the Parliament holden in the 7. year of H. 5. holden before the Duke of Bedford Guardian of England of the Lords Spiritual and Temporal 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 E. 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 body of the kingdom and doe sit in two Houses and of this Court of Parliament the King is Caput Principium Finis The Parl. cannot begin but by the Royal presence of the King either in person or representation by a Gardian of England or Commissioners both of them appointed under the great Seal 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 behalf of the King That they could not assent to any thing in Parliament that tended to the disinherison of the King and his Crown whereunto they were sworn And p. 35. he hath this special observation That it is observed by antient Parliament men out of Records that Parliaments have not succeeded well in five cases First when the King hath been in difference with his Lords with his Commons Secondly When any of the great Lords were at variance between themselves Thirdly When there was no good correspondence between the Lords and Commons Fourthly When there was no unity between the Commons themselves in all which our present Parliament is now most unhappy and so like to miscarry and succeed very ill Fifthly When there was no preparation for the Parliament before it began every of which he manifests by particular instances From all these and sundry other Authorities it is most evident and transparent That both the King himself and Lords ought of
London by a Proces out of the Kings Bench at the sute of one White for the sum of two hundred marks or thereabouts wherein he was late afore condemned as a surety for the debt of one Welden of Salisbury which arrest being signified to Sir Thomas Moile knight then Speaker of the Parliament and to the knights and Burgesses there order was taken that the Serjeant of the Parliament called S. I. should forthwith repair to the Counter in Bredstreet whither the said Ferrers was carried there to demand delivery of the Prisoner Therupon the Serjeant as he had in charge went to the Counter and declared to the Clerks there what he had in commandment but they and other Officers of the City were so far from obeying the said commandment as after many stout words they forcibly resisted the said Serjeant whereof ensued a fray within the Counter Gates between the said Ferrers and the said Officers not without hurt of either part so that the said Serjeant was driven to defend himself with his mace of arms and had the Crown thereof broken by bearing off a stroke and his man stroken down During this brawl the Sherifs of London called Rowland Hill and H. Suckley came thither to whom the Serjeant complained of this injury and required of them the delivery of the said Burgesse as afore but they bearing with their Officers made little account either of his complaint or of his message rejecting the same contemptuously with much proud language so as the Serjeant was forced to return without the Prisoner and finding the Speaker and all the knights and Burgesses set in their places declared unto them the whole cause as it fell out who took the same in so ill part that they altogether of whom there were not a few as well of the Kings privy Counsel as also of his privy Chamber would sit no longer without their Burgess but rose up wholly and repaired to the Vpper House where the whole case was declared by the mouth of the Speaker before Sir T. Audeley knight then Lord Chancellor of England and all the Lords and Judges there assembled who judging the contempt to be very great referred the punishment thereof to the order of the Common house They returning to their places again upon new debate of the Case took order that their Serjeant should eftsoon repair to the Sherifs of London and require delivery of the said Burgess without any writ â— warrant had for the same but only as afore Albeit the Lord Chancellor offered there to grant a Writ which they of the Common House refused being of a clear opinion that all commandements and other acts proceeding from the neather House were to be done and executed by their Serjeant without Writ only by shew of his Mace which was his warrant But before the Serjeants return into London the Sherifs having intelligence how hainously the matter was taken became somewhat more mild so as upon the said second demand they delivered the Prisoner without any denial But the Serjeant having then further in commandment from those of the neather House charged the said Sherifs to appear personally on the morrow by 8 of the clock before the Speaker in the neather House and to bring thither the Clerks of the Counter and such other of their Officers as were parties to the said affray and in like manner to take into his custody the said White which wittingly procured the said arrest in contempt of the privilege of the Parliament which commandment being done by the said Serjeant accordingly on the morrow the two Sherifs with one of the Clerks of the Counter which was the chief occasion of the said affray together with the said White appeared in the Common House where the Speaker charging them with their contempt and misdemeanor aforesaid they were compelled to make immediate answer without being admitted to any counsell Albeit Sir Ro. Cholmley then Recorder of L. and other the Counsel of the City then present offered to speak in the cause which were all put to silence and none suffered to speak but the parties themselves whereupon in the conclusion the said Sherifs and the same White were committed to the Tower of London and the said Clerk which was the occasion of the fray to a place there called Little Base and the Officers of L. which did the arrest called Tailer with 4 Officers more to Newgate where they remained from the 28 until the 30 of March and then they were delivered not without humble sute made by the Mayor of L. and other their friends And forasmuch as the said Ferrers being in execution upon â— condemnation of debt and set aâ— large by privilege of Parliament was not by Law â—o be brought again into execution and so the party without remedy for his debt as well against him as his principal debtor after long â—ebate of the same by the space of 9 or 10 days together at last they resolved upon an Act of Parliament to be made and to revive the execution of the said debt against the said Welden which was principal debtor and to discharge the said Ferrers But before this came to passe the Commons House was divided upon the question but in conclusion the Act passed for the said Ferrers who won by 14 voices The King being then advertised of all this proceeding called immediately before him the Lord Chancellor of England and his Judges with the Speaker of the Parliament and other the gravest persons of the neather House to whom he declared his opinion to this effect First commending their wisdom in maintaining the privileges of the House which he would not have to be infringed in any point alleged that he being head of the Parliament and attending in his own person upon the business thereof ought in reason to have privilege for him and all his Servants attending there upon him So that if the said Ferrers had been no Burgesse but only his servant that in respect thereof he was to have the privilege as well as any other For I understand quoth he that you not only for your own persons but also for your necessary servants even to your Cooks and Horse-keepers enjoy the said privilege insomuch as my Lord Chancellor here present hath informed us that he being Speaker of the Parliament the Cook of the Temple was arrested in L. and in execution upon a Statute of the staple And forasmuch as the said Cook during the Parliament served the Speaker in that office he was taken out of execution by the privilege of the Parliament and further we be informed by our Judges that wee at no time stand so highly in our estate Royal as in the time of Parliament wherein we as Head and you as Members are conjoyned and knit together into one body politick so as whatsoever offence or injury during that time is offered to the meanest Member of the House is to be judged as done against our person and the whole Court of
right duty to be personally present in Parl. 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 that no Lords Commons ought to depart from it without special leave under pain of amercement and other penalties That 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 Councel of London are an intire City or Corporation without the L. Mayor and Aldermen or the Covent without the Abbot the Chapter without the Dean or the legs or belly a perfect man without the head neck and heart Sixthly The antient and constant form of endorsing Bills in Parliament began in the Commons house in all Parliaments since the House of Commons unanswerably demonstrates the Commons of Englands acknowledgement of the Lords right to sit vote assent or dis-assent 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 their receiving Messages from them and entertaining frequent conferences with them in matters wherein their opinions differ in which conferences the Lords usually adhere to their dissents unlesse the Commons give them satisfaction and convince them and the Lords oft times convince the Commons so far as to consent to their alterations of Bills Ordinances Votes and to lay them quite aside is an unquestionable argument of their Right to sit and vote in Parliament and of their Negative voice too All which would prove but a meer absurdity 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 dissenting voice as well as they never once questioned nor doubted till within this year or two by some seditious disciples of Lilburns and Overtons tutoring 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 vain to make such a Law continuing still till this very day both in force and use if they had no lawfull right to sit and vote in Parliament because they are not elective as Knights and Burgesses are And likewise by the Statute of 39 H. 6. c. 1. made at the Commons own Petition to repeal the Parliament held at Coventry the year before and all procedings of it 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 covetousness to possesse themselves of their Lands possessions offices and goods whereby many great injuries Enormities and Inconveniences well nigh to the ruine decay and universal subversion of the kingdom ensued The very design of our Lilburnists Sectaries and Levellers now out of particular malice and covetousness to share the Lords and all rich Commoners lands and estates between them being poor indigent covetous people for the most part scarce forty of them worth one groat at least before these times and wars 8ly This apparent Right of theirs is undeniably ratified acknowledged by the very words of the Kings writs in all ages by which the Lords themselves are summoned to the Parliament running in this form Carolus c. Charissimo consaguineo suo Edwardo Com. Oxon. salutem Quia de advisamento consensu consilii nostri pro quibusdam arduis et urgentibus negotiis Nos statum et defensionem Regni nostri Angliae Ecclesiae Angli canae concernentibus quoddam Parliamentum nostrum apud Civitatem nostram Westmonasterium 12 die Novemb. prox futuro tenere ordinavimus et ibidem vobiscum cum Praelatis Magnatibus et Proceribus dicti regni nostri colloquium havere ettractare Vobis sub fide ligeantiis quibus nobis teneamur firmiter injungendo Mandamus quod consideratis dictorum negotiorum arduitate periculis minentibus cessante excusatione quacunque dictis die et loco personaliter inter sitis Nobiscum ac cum Praelatis Magnatibus Proceribus praedictis super dictis negotiis tractaturus vestrumque consilium impensurus sicut Nos et honorem nostrum ac salvationem et defensionem Regni et Ecclesiae praedictorum expeditionem que dictorum negotiorum diligitis nullatenus omittatis Teste c. Which writs firmly require and command their personal presence counsel and advise in all Parliaments without any excuse and that by the faith and allegiance which they owe to the King and as they doe tender the King and his honour the salvation and defence of the Realm and Church of England and the dispatch of the arduous and urgent businesses which concern them Which is likewise seconded expressed in the very words of all the writs for election of Knights and Burgesses the form and substance whereof are antient and can recive no alteration nor addition but by Act of Parliament as Sir Edward Cook resolves By this Writ the Prelates Great men Nobles of the Realm are summoned to the Parliament there to treat and confer with the King of the arduous and urgent affairs and defence of the King Realm and Church of England as the first Clause of the writ Carolus c. quia c. pro quibusdam arduis et urgentibus negotiis Nos Statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernent quoddam Parliamentum nostrum c. teneri ordinavimus ibidem cum Praelatis Magnatibus Proceribus dicti Regni nostri colloquium haberet tractare Tibi praecipimus And the Commons are summoned to perform and consent to those things which shall there happen to be ordained by this Common Council of the Kindom c. And if they are thus summoned not to treat amongst themselves as an independent intire Parliament but to confirm and consent to what the King Prelates Great men and Peers the Common Council of the Realm shall ordain about such affairs as they must of necessity admit the King Lords and Peers to be altogether as essential yea more principal eminent Members of Parliament though not elective as the Knights and Burgesses who are but summoned to consent to and perform what shall happen there by their common advise to be ordained or at least to consult and advise with them as their inferiours not to over-rule them as their superiours and the only Supream power authority in the Kingdom So if they will totally exclude either King or Lords from the Parliament who are distinct principal and essential Members of it as well as the Commons and have always been so reputed until now
the Attainders repealed by Bill afterwards In the Parliament of 25 H. 8. c. 12. Elizabeth Barkin Richard Master Edward Barkin and sundry others were attainted and condemned of High Treason John Fisher Bishop of Rochester Thomas Gold and others of misprission of High Treason by Act of Parliament In the Parliament of 28 H. 8. c. 7. Queen Anne George Lord Rochford Sir Henry Norris Sir Francis Weston William Breerton Esquire and Mark Sutton were convicted and attainted of High Treason and their lands forfeited by Bill In the Parliament of 32 H. 8. Thomas Lord Cornwell was convicted and attainted of High Treason by Bill against Law and the great Charter without ever being called to answer or any legal hearing for the Treasons therein expressed according â—o his own intentions to have thus proceeded against others without legal tryal In the Parliament of 33 H. 8. c. 21. Queen Katherine Jane Lady Rochford were convicted and attainted of High Treason by Bill to which Act the king was enabled to give his royal assent by Letters Patents signed by him under his hand with his great Seal notified and published in the HIGHER HOUSE to the Lords Spiritual and Temporal and the Commons there assembled without comming to the House in person to give his royal assent thereto In the Parliament of 2 3. Ed. 6. ch 17. Sir william Sharington Knight being indicted and attainted of High Treason for forging and coyning of mony called Testons his attainder was confirmed by Act of Parliament and his lands forfeited And ch 18 Sir Thomas Seymor Lord Seymor of Sudley and high Admiral of England for his trayterous aspiring to the Crown of this Realm and to be King of the same and for compassing and imagining by open Act to deprive the King of his royal estate and title of his Realms and for compassing and imagining the death of his Noblemen and most trayterously to take away and destroy all things which should have sounded to the let or impediment of this his most trayterous and ambitious enterprise as the Act recites and for other his misdemeanors innumerable untruths falshoods deceiptfull practises outrages against the King oppression manifest extortion upon the Subjects of the Realm was adjudged and attainted of high Treason by Bill and to sustain such pain of death and other forfeitures aes in cases of High Treason have been used being a Member so unnaturul unkind and corrupt and such a heynous offender of his Majesty and his Laws that he cannot nor may not conveniently be suffered to remain in the body of the Commonwealth but to the extreme danger of the Kings Highness being the head and of all the good Members of the same and of too pernicious and dangerous example that such a person so bound to his Majesty by sundry great benefits and so forgetfull of them and so cruelly and urgently continuing in his false and treacherous intents and purposes against his Highness and the whole estate of his Realm should remain among us In the Parliament of 1 Mariae ch 1. the Attainder of Queen Katherine is reversed by Bill and ch 16. the Attainders of John Duke of Northumberland Thomas Cranmer Archbishop of Canterbury William Marquess of Northampton John Earl of Warwick Sir Ambrose Dudley with other Knights and Gentlemen formerly convicted and attainted of Treason according to the Law of the Realm for their detestable and abominable Treasons in proclaiming and setting up Queen Jane to the peril and great danger of the person of Queen Mary and to the utter loss disherison and destruction of the Realm of England if God in his infinite goodness had not in due time revealed their trayterous intents as the Act recites at the Petition and with the assent of the Lords Spiritual and Temporal and Commons in Parliament were confirmed and ratified by a special Act. In the Parliament of 29 Eliz. c. 1. the Attainders of Thomas Lord Paget Sir Francis Englefield and sundry other Knights and Gentlemen who were lawfully indicted convicted and attainted of many unnatural detestable and abominable Treasons to the fearfull peril and danger of the destruction of the Queens Majesties person and of the Realm were confirmed by a special Act and ch 3. there is another Act to avoid fraudulent assurances made in certain cases by Traytors In the Parliament of 3 Jacobi ch 2. Sir Everâ—rd Digby Robert Winter Guy Fawkes Robert Catesâ—y and all the rest of the Gunpowder Traytors who undertook the execution of the most barbarous execrable and abominable Treason that could ever enter into the hearts of most wicked men by blowing up the Lords House of Parliament with the King Queen Prince Lords Spiritual and Temporal Judges Knights Citizens and Burgesses of Parliament therein assembled were attainted of High Treason and their former attainders and convictions confirmed by a special Act And in this very last Parliament the Earl of Strafford Lord Deputy of Ireland and William Laud Archbishop of Canterbury after judgement of high Treason upon their several impeachments and trials given against them by the Lords in their House were likewise attainted of Treason and their judgements ratified by a special Bill and Ordinance to which the Commons assented as well as the Lords their assents to Attainders by way of Act or Bill being so necessary that if the King in Parliament Wills that such a man shall be attainted of Treason and lose his lands and the Lords assent and nothing is spoken of the Commons in the Bill this is no Act nor good Attainder in Law and the petson shall be restored by the opinion of all the Judges 4 H. 7. f. 18. Broke Parliam 42. Fitz. 3.7 H. 7.14 11 H. 7.27 Broke Parliam 107. Plowden 79.32 H. 6.18 As the Commons in our English Parliaments have assented to all these and some other Bills and Acts of Attainder cited in Sir Edward Cooks 4 Institutes ch 1 2. and Mr. St. Johns Argument at Law concerning the Bill of Attainder of High Treason of Thomas Earl of Strafford printed by Order of the Commons House 1641. So I find that the Commons in Ireland have done the like in the Parliaments held in Ireland as the Printed Statutes of Ireland 28 H. 8. c. 1. for the Attainder of the Earl of Kildare and others of High Treason 11 Eliz. ch 1. for the Attainder of Shan O Neyle and others of High Treason of 13 Eliz ch 6. 7. for the Attainders of Fiâ—zgerald and others of High Treason Of 27 Eliz. ch 1. for the Attainders of Iames Eustace and others of High Treason of 28 Eliz. ch 8. 9. for the Attainders of the Earl of Desmond John Brown and others and of 11 Jacobi ch 4. for the Attainders of the Earl of Tyrone and others of High Treason for their several rebellions insurrections wars against their Soveraigns and other Treasons mentioned in these respective Acts abundantly evidence But yet the Commons assents to all these Bills
iâ— regno Quid mihi suaderet vos prodere vel certe necare qui nihil lucri reciperem de vestra morte Nunquid hostes â—estri me ditiorem facerent in terra sua quam effectus sum in terra vestra et in natali solo Aut si regnum affectarem credendu â—ne est post vestram inteâ—fectinnem quod absit Dominos hujus Regni aquâ—nimiter ferre me posse Domini mei et patriae proâ—â—torem Deliâ—ere si placet fidem â—arâ—â—alia â—lerenâ—bus quia paratus sum more militis contra quemcunque mundi mihi in hac causa adversantem pugnare et meam innocentiam defendere et purgare Upon which and other words the King believed the Duke and received his excuses and committed the Frier at his request to the Custodie of the Lord John Holland usque ad diem quo causam diceret horum quae praeposuerat contra eum In ipsa nocte quae processit diem suae responsioniâ— the Frier was strangled and pressed to death by the said John and another Knight and the next day his dead corps was drawn through the street like a Traytor to take away the suspition of his unjust death Ipsi judices ipsi ministri ipsi tortores extiterunt Et hic fructus Parliamenti praesentis praeter hoc quod dominus Willielmus la Zouche quamvis gravissima detineretur aegritudine accersitus erat ad Parliamentum ad standium judicio Regis et Dominorum quia idem â—rater eum velut inventorem inceptorem et incentorem dixerat omnium quae scripserat extitisse Qui cum venisset lectica delatus quia propter guttam equitare non poterat compulsus est discinctus et discooperto capite ad haec omnia sibi objecta more latronum vel proditorum respondere Qui viriliter negavit objecta Sacramento firmans haec nunquam audisse vel hujusmodi cogitasse et ita demum absolutus est et domum redire permissus In this Parliament holden at Salisbury 7 R. 2. rot Parl. n. 11. to 16. John Cavendish a Fishmonger of London made his complaint first to the Commons and after to the Lords against Sir Michael de la Poole Chancellor of England demanding the Peace against him which THE LORDS granted after which he accused him for taking Bribes and delayes and injustice in a sute of his depending before him whereof he cleared himself by his own Oath and the Oaths of other witnesses sworn and examined before THE LORDS Whereupon the Lords being troubled with other weighty matters referred the Chancellors reparation for the Scandal to the ordering of the Judges The same Sir Michael de la Pole Earl of Suffolk and Chancellor of England in the Parliament of 10 R. 2. rot Parliamenti n. 6. to 18. was accused in full Parliament before THE KING BISHOPS LORDS by the Commons who exhibited sundry Articles against him recorded at large by Henry de Knyghton agreeing with the Parliament Roll. The effect of them was this That whiles he was Chancellor against his Oath to procure the profit of the King he had purchased lands and tenements of the King of great value at under rates and exchanged uncertainâ— customs and rents for good lands in deceipt of the King and for spending the Aids granted to the King the last Parliament to guard the Seas in another manner than they were granted whereby the Seas were not guarded and much mischief hapned to the Realm c. The Lords Commons refused to act any thing till the King came in person to Parliament and the Chancellor removed upon these Articles The Chancellor demanded of the LORDS 1. Whether he should answer these Articles without the Kings presence for things done whiles he was Chancellor for that he being Chancellor of England for the time represented the Kings person in Parliament during his absence thence Secondly Whether his Brother in Law Sir Richard Scroope might not answer for him whom he had by advice of his Counsel appointed to do it To which the LORDS answered and resolved It was honest and fit for him to answer for himself Whereupon he making protestation that he might adde to or diminish from his answer and that which might be honourable to him by advice of his Counsel the Lords granting thereunto He thereupon put in an answer and replication to all the Articles to which his Counsel added some things in making his defence The Commons replyed to his answer to w ch he by way of rejoyndâ—r replied and answered to them his defence sâ—eming very solid Yet the Commons upon his replication before judgement pressed the King then being in Parliament and she Lords that he might be committed for the grievous offences charged against him Whereupon he was arrested by the Kings command and committed to the custody of the Constable of England and after let to mainprise Ar last THE LORDS in full Parliament GAVE JUDGEMENT AGAINST HIM That for breach of his Oath all the Manors and lands which he had of the Kings gift contained in the Articles should be seised into the Kings hands to have them to him and his heirs for ever together with their mean profits and issues saving to him the name and Title of a Knight and Earl together with an annuity of 20 l. yearly granted him out of the profits of the County of Suffolk The like judgement was given against him for the lands exchanged by the King for the customs of Hull and the Priory of St. Anthony Walsingham addes That he was deprived likewise of his Chancellorship and adjudged worthy of death yet the Lords would not put him to death but sent him prisoner to Windsore Castle Rex autem non multo post annullavit quicquid in Parliamento statutum fuerat contra ipsum In the Parliament of 11 R. 2. rot Parl. â— 6 7. Thomas Duke of Gloucester kneeling before the King said that he understood the King was informed he went about to depose him and to make himself King Wherefore he offered to put himself upon his tryal in that behalf as the Lords of the Parliament would award Whereupon the King said in open Parliament that he thought the said Duke was nothing faulty and therefore held him excused After which all THE LORDS as well spiritual as temporal being in the Parliament claimed their liberties and franchises namely That all weightâ— matters in the same Parliament which should be after moved touching THE PEERS OF THE LAND ought to be discussed JUDGED AND DETERMINED BY THE M by the course of Parliament and not by the Civil Law nor yet by the Common Law of the Land used in other Couâ—ts of the Realm The which claim and liberties the King most willingly allowed and granted thereto in full Parliament After which Thomas Earl of Glocester Henry Earl of Derby Richard Earl of Arundel Thomas Earl of Warwick and Thomas Earl of Marshal Lords Appellants impeached Alexandâ—r Archbishop of York Robert de Vere
committed to the Tower of London The 7 day of February the Commons by William Trussel their Speaker brought up and presented to the King and Lords in the Lords House a Bill against the said Duke containing an impeachment of several High Treasons committed by him against the King requiring of the Lords all their Articles therein to be enacted with prosecution therein The 9. of March they exhibited new articles of complaint against the Duke comprising sundry misdemeanors against the king and other persons which they require might be enrolled and that the Duke might answer to them The 9. of March the Duke was brought by the kings writ from the Tower into the Parliament Chamber before the King and Lords where the Articles were rehearsed to him who desired Copies of them which was granted And he for more ready answer was committed to certain Esquires to be kept in the Tower within the kings palace The 14 of March the Duke appeared before the K. Lords where on his knees he denied as untrue the 8 Articles of Treason and the same offered to prove as the King shall appoint The Chief Justice thereupon by the kings command asked this Question of the Lords what advise they would give the King what is to do further in this matter which advise was deferred till Monday then next following whereon nothing was done in that matter On Tuesday the 17 of March the king sent for all the Lords Spiritual and Temporal then being in Town being 24 in all into his Inner Chamber within his Palace of Westminster where when they were all assembled he then sent for the Duke thither who coming into the Kings presence kneeled down and continued kneeling till the Chancellor of England had delivered the kings command to him and demanded of him what he said to the Commons Articles not having put himself upon his Peerage Whereupon the Duke denied all the Articles touching the kings Person and state of the Realm as false and scandalous And so not departing from his said Answers submitted himself to the kings Rule and Governance without putting himself upon his Peerage Where thus the Chancellor told him That as touching the great and horrible crimes contained in the first Bill the king holdeth him neither declared nor charged And as touching the second Bill containing misprisions which are not criminal the king by force of his submission by his own advice and 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 coming he should absent himself out of the kingdom of England and all other his Dominions in France or elsewhere and that he nor no man for him should shew or wait 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 Beaumont in behalf of the said LORDS both spiritual and Temporal and by their advice assent and desire said and declared to the Kings Highness That this that so was decreed and done by his Excellency concerning the person of the said Duke proceeded not by their advice and Counsels but was done by the Kings own demeanoir 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 should not be nor turn in prejudice nor derogation of them their heirs ne of their successors in time coming but that they may have and enjoy their liberty as they or any of their Ancestors and Predecessors had and enjoyed before this time This is the sum of this large Record which makes nothing to the purpose for which Sir Edward Cook cites it in his 4 Institutes p. 25. That it is ERROR when both Houses joyn not in the Judgement For first here is nothing but an impeachment only by the Commons of a Peer who ought to be tryed judged only by his Peers 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 own Chamber in presence of the Lords Thirdly the Lords entred a special protestation against it as not made by their advice or consent Fourthly they enter a special claim in the Parliament Roll for the preservation of their Right and Freedom of Peerage for hereafter both of being tried and judged only by their Peers in Parliament and so an express resolution that the Peers in Parliament are and ought to be Judges especially of Peers not the Commons These Records of these cited at large lest Sir Edward Cooks brief quotation and mis-recital of them should deceive the credulous or ignorant Readers In the Parliament of 31 H. 6. rot Parl. n. 28. Thomas Earl of Devonshire was accused of Treason tried for and acquitted thereof by his Peers before Humfrey Duke of Buckingham Steward of England for the time being And for that the Duke of York thought the loyalty of the said Earl to be touched thereupon the said Earl protesting his Loyalty referred himself to further Trial as a Knight should doe upon which declaration THE LORDS in Parliament acquitted him as a loyal Subject Edward Duke of York with the Earls of March Warwick Salisbury Rutland John Lord Clinton and others were impeached and attainted by Judgement of the Lords in Parliament of High Treason for raising forces and levying war against King Henry the 6. and afterwards attainted by Bill in the Parliament of 38 H. 6. n. 7. to 26. In the Paâ—liamenr of 1 E. 4. n. 17. to 71. The Duke of Exeter Viscount Beamont the Earls of Pembroke Wilts and Devonshire the Lords Nevil Roos Gray Dacre Hungerford and others were first attainted and condemned of High Treason by THE LORDS and after by Bill for levying warr against King Edward the fourth The Duke of Somerset and others in the Parliament of 4 E. 4. n. 28. to 39. and John Vere Earl of Oxford with others in the Parliament of 14 E. 4. n. 34. to 41. were in the same manner for the same offence attainted of High Treason and their Lands forfeited To pretermit all other Attainders of this Nature in cases of High Treason in the reigns of Henry the 8. Edward the 6. Queen Mary Queen Elizabeth and King James both in our English and Irish Parliaments formerly touched p. 196 197 198 199. In the Parliaments of 18 21 Jacobi Sir Francis Bacon Viscount St. Alban Lord Chancellor of England and the Earl of Middlesex Lord Treasurer of England were impeached accused convicted of Bribery Corruption and other misdemeanors removed from their places fined Middlesex 50000 l. imprisoned made uncapable of any Office and thus censured by Iudgement of the Lords house as the Journals of those Parliaments
the Prior of Coventry the King granteth by Assent of the Bishops and Lords that no man do break the head of their Conduit nor cast any filth into their water called Sherbouâ—n on pain of ten pound and treble dammages to the Prior. In the Parliament of 9. H. 5. n. 12. Upon long debates of the Lords and Iustices it was resolved by them that the Abbot of Ramsy should have no prohibition against Walter Cook parson of Somersham who sued for Tithes of a Meadow called Crowland Mead in the hands of the Abbots Tenants In the great case of Precedency between the Earl Marshall and Earle of Warwick in the Parliament of 3. H. 6. n. 10 11. c. The Lords being to bee Iudges of the same suspended both of them from sitting in the house till their case was fully heard and they all voluntarily swore on the Gospel that they would uprightly judge the case leaving all affection In the Parliament of 11. H. 6. n. 32 33 34 35. Upon a Petition the King and Lords in Parliament adjudged the Dignity Seigniory Earledome of Arundel and the Castle and Lands thereunto belonging to John Earle of Arundel who proved his Title thereto by a deed of Entayle against the Title of John Duke of Norfolck who layed claim thereunto And in the Parliament of 39 H. 6. n. 10. to 33. The claime of the Duke of York and his Title to the Crown of England against the Title of King Henry the 6 th was exhibited to the Lords in full Parliament the Lords upon consultation willed it to be read amongst them but not to bee answered without the King The Lords upon long consultation declared this Title to the King who willed them to call his Justices Sergeants and Attorney to answer the same Who being called accordingly utterly refused to answer the same Order thereupon was taken That every Lord might therein freely utter his conceit without any impeachment to him In the end there were five objections made against the Dukes Title who put in an answer to every of them which done the Lords upon debate made this order and agreement between the King and Duke That the King should injoy the Crown of England during his life and the Duke and his heirs to succeed after him That the Duke and his two sons should bee sworne by no means to shorten the dayes or impaire the preheminence of the King during his life That the said Duke from thenceforth shall be reputed and stiled to bee the very Heir apparent to the Crown and shall injoy the same after the death or resignation of the said King That the said Duke shall have hereditaments allotted to him and his sons of the annual value of ten thousand marks That the compassing of the death of the said Duke shall bee Treason That all the Bishops and Lords in full Parliament shall swear to the Duke and to his heirs in forme aforesaid That the said Duke and his two sons shall swear to defend the Lords for this agreement The King by Assent of the Lords without the Commons agreeth to all the Ordinances and accords aforesaid and by the Assent of the Lords utterly repealeth the statute of intayle of the Crown made in 1. H. 4. so alwaies as hereafter there be no better Title proved for the defeating of their Title and this agreement by the King After all which the said Duke and the two Earles his sonnes came into the Parliament Chamber before the King and LORDS and sware to performe the award aforesaid with protestation if the King for his part duly observed the same the which the King promised to do All which was inrolled in the Parliament Rolls Lo here the Lords alone without the Commons judge and make an award between King Henry the 6th and the Duke of York in the highest point of right and title that could come in question before them even the right and title to the Crown of England then controverted and decided the King and Duke both submitting and assenting to their award and promising swearing mutually to perform it which award when made was confirmed by an Act passed that Parliament to which the Commons assented as they did to other Acts and Bills And here I cannot but take special notice of Gods admirable Providence and retaliating Justice in the translation of the Crown of England from one head family of the royal blood to another by blood force war treason and countenance of the Authority of the temporal and spiritual LORDS and COMMONS in Parliament in the two most signal presidents of King Edward and King Richard the 2 d. which some insist on to prove the Commons Copartnership with the Lords in the power of Judicature in our Parliaments the Histories of whose Resignations of their Regal Authority and subsequent depositions by Parliament I shall truly relate Anno 1326. the 19. of Ed. 2d Queen Isabel returning with her Son Prince Edward and some armed forces from beyond the Seas into England most of the Earles and Barons out of hatred to the Spencers and Kingâ— repaired to them and made up a very great army The King thereupon proclaimed that every man should resist oppose kill them except the Queen Prince and Earle of Kent which they should take prisoners if they could and neither hold any correspondency with them nor administer victuals nor any other assistance to them under pain of forfeiting their bodies estates But they prevailing and the King being deserted by most hee fled into Wales for shelter Whereupon Proclamation was made in the Queens army every day that the King should return and receive his Kingdome again if hee would conforme himself to his Leiges Quo non comparente Magnasâ—es Regni Hereâ—ordiae Concilium injeâ—unt in quo filius Regis Edwardus factus est Cusâ—os Angliae communi Decreto cui cuncti tanquam Regni custodi fidelitatem fecerunt per fidei sacramentum Deinde Episcopum Norwicensem fecerunt Cancellarium Episcopum vero Wintoniensem regni Thesaururium statuerunt Soon after the King himself with most of his evil Counsellors were taken prisoners being betrayed by the Welch in whom they most confided Hagh Spencer Simon Reding Baldoik and others of the Kings party being executed at Hereford Anno 1327. the King came to London about the feast of Epiphany where they were received with great joy and presents Then they held a Parliament wherein they all agreed the King was unworthy of the Crown and fit to be deposed for which end there were certain Articles drawn up against him which Adam de Orleton Bishop of Winchester thus relates in his Apology i Ea autem quae de Consilio et assensu omnium Praelatorum Comitum et Baronum et totius Communitatis dicti Regni concordata ordinata fuerunt contra dictum regem ad amotionem suam a regimine regni contenta sunt in instrumentis publicis Reverendo patre domino J. Dei
Picardy ready to be transported into England But when it was certainly certified that King Richard was dead and that their enterprise of his deliverance was frustrate and void the Army scattered and departed asunder But when the certainty of King Richards death was declared to the Aquitaynes and Gascons the most part of the wisest men of the Country fell into a bodily fear and into a deadly dread for some lamenting the instability of the English people judged them to be spotted with perpetual infamy and brought to dishonour and loss of their antient fame and glory for committing so hainous a crime and detestable an offence against their King and Soveraign Lord. The memory whereof they thought would never be buried or extincted Others feared the loste of their goods and liberties because they imagined that by this civil dissension and intestine division the Realm of England should so be vexed and troubled that their Country if the Frenchmen should invade it should be destitute and left void of all aid and succour of the English Nation But the Citizens of Burdeaux took this matter very sore at stomach because King Richard was born and brought up in their City lamenting and crying out that since â—he beginning of the world there was never a more detestable or more villanous or hainous act committed which being sad with sorrow and inflamed with melancholy said that untrue unnatural and unmercifull people had betrayed and slain contrary to all Law and Justice and honesty a good man a just Prince and lawfull Governour beseeching God devoutly on their knees to be the revenger and punisher of that detestable offence and notorious crime 15ly The proceedings against King Richard the 2. in the Parliament of 1 H. 4. were in the Parliament of 1 E. 4. n. 9 10 11 12. condemned as illegal the Tyrannous usurpation of Henry the 4th with his hainous murdering of King Richard the 2. at large set forth his reign declared by Act of Parliament to be an intrusion and meer usurpation for which he and the heirs of his body are utterly dis inabled as unworthy to enjoy any inheritance estate or profits within the Realm of England or Dominions of the same for ever and that by this memorable Petition of the Commons wherein the pedigree of King Edward the 4th and his title to the Crown are likewise fully set forth a Record most worthy the publike view being never yet printed to my knowledge Ex Rotulo Parliamenti tenti apud Westm anno primo Edwardi Quarti n. 8. Memorandum quod quaedam Petitio exhibita fuit praefato Domino Regi in praesenti Parliamento per praefatos Communes sub eo qui sequitur tenore verborum For as much as it is notary openly and evidently known that the right noble and worthy Prince Henry King of England the third had issue Edward his furst gotten Son born at Westminster in the 15 kalende of Juyll in the vigille of Seint Marce and Marcellian the year of our Lord M. C.C.XLV the which Edw. after the death of the said King Henry his Fader entituled and called King Edward the furst had issue his furst gotten Son entituled and called after the decease of the same Edward the furst his Fader King Edward the second which had issue the right noble and honourable Prince King Edward the third true and undoubted King of Englond and of France and Lord of Irelond which Edward the third had issue Edward his furst gotten Son Prince of Wales William Hatfield secund gotten Son Leonel third gotten Son Duke of Clarence John of Gaunt fourth gotten son Duke of Lancaster Edmund Langley the fifth gotten son Duke of York Thomas Wodestoks the sixth gotten son Duke of Gloucester and William Wyndesore the seventh gotten Son And the said Edward Prince of Wales which died in the life of the said King Edward the thurd his Fader had issue Richard which after the death of the same King Edward the third as Cousin and heir to him that is to say Son to the said Edward Prince of Wales Son unto the said King Edward the third succeeded him in royal estate and dignity lawfully entituled and called King Richard the secund and died without issue William Hatfield the secund gotten Son of the said King Edward the third died without issue the said Leonel Duke of Clarence the third gotten Son of the same King Edward had issue Phelip his only daughter and died And the same Phelip wedded unto Edmund Mortimer Earl of Marche had issue by the same Edmund Roger Mortymer Earl of Marche her Son and heir which Edmund and Phelip died the same Roger Earl of March had issue Edmund Mortymer Earl of March Roger Mortymer Anne and Alianore and died And also the same Edmund and Roger sons of the foresaid Roger and the said Alianore died without Issue And the same Anne wedded unto Richard Earl of Cambridge the Son of the said Edmund Langley the fifth gotten son of the said king Edward the third as it is afore specified had issue that right noble and famous Prince of full worthy memory Richard Plantagenet Duke of York And the said Richard Earl of Cambridge and Anne his Wife died And the same Rich. Du. of York had issue the right high and mighty Prince Edward our Liege and Soveraign Lord and died to whom as Cousin and heir to the said King Richard the Crown of the Realm of England and the royal power estate dignity preheminence and governance of the same Realm and the Lordship of Ireland lawfully and of right appertaineth of the which Crown Royal power estate dignity preheminence governance and Lordship the said King Richard the second was lawfully rightfully and justly seised and possessed and the same joyed in rest and quiet without interruption or molestation unto the time that Henry late Earl of Derby son of the said Iohn of Gaunt the fourth gotten son of the said King Edward the third and younger Brother of the said Leonel temerously agenst rightwisnes and Iustice by force and Arms agenst his faith and liegeaunce rered werre at Flynte in Wales agenst the said King Richard him took and enprisoned in the Tower of London of grete violence And the same King Richard so being in prison and living usurped and intruded upon the royal power estate dignity preheminence possessions and Lordships aforesaid taking upon him usurpously the Crown and name of K. and L. of the same Realm and Lordship And not therewith satisfied or content but more grievous thing attempting wickedly of unnatural unmanly and cruel tyranny the same King Richard King anointed crowned and consecrate and his Liege and most high Lord in the Earth agenst Gods Law Mans liegeance and Oth of fidelite with uttermost punicion attormenting murdred and destroyed with most vile hainous and lamentable death whereof the heavy exclamation in the doom of every Christian man soundeth into Gods hearing in Heaven not forgotten in the Earth specially in this
Christ beseeching all that fear God to behave themselves as obedient Subjects to the Queens Highness and the superiour powers which are ordained under her rather after their example to give their heads to the block than in any point to rebell against the Lords anointed Queen Mary in no point consenting to any Rebellion or sedition against her Highness but where they cannot obey but must disobey God there to submit themselves with all patience and humility to suffer as the will and pleasure of the higher powers shall adjudge Against the doctrine practice of some new Saints of this iron age who will ward off Christs wooden Cross with their iron swords and rather bring their Soveraigns heads to the block than submit their own heads unto it for their very Treasons and Rebellions against them So farr are they from believing practising the very first Alphabetical Lesson of our Saviours prescription and real Christanity Mat. 16.24 If any man will come after me let him deny himself and take up his cross and follow me The Duke of Northumberland for that he was appointed General of the Army in this Quarrel of the Lady Jane though Queen de facto was arrested of High Treason together with 3. of his Sons the Marquess of Northampton the Earl of Huntindon with sundry Knights Gentlemen and sent prisoners to the Tower of London The 16. of August next following the said Duke and Nobles were publikely arraigned of High Treason in Westminster hall before Thomas Duke of Norfolk High Steward of England being brought to the bar the D. used great reverence to his Judges professing his faith and allegiance to the Queens Majesty whom he confessed he had grievously offeâ—ded saying that he meant not to speak any thing in defence of his face but would first understand the opinion of the Court in 2. points 1. Whether a man doing any Act or thing by authority of the Princes Councel and by Warrant of the Great Seal of England and nothing doing without the same may be charged with TREASON for doing any thing by such Warrant Which question was grounded on this very Statute of 11 H. 7. c. 1. 2. Whether any such persons as were equally culpable in that crime and those by whose Letters and Commandment he was directed in all his doings might be his Iudges or passe upon his Tryal as his PEERS To the 1. was answered mark it That the Great Seal he had for his Wâ—rrant was not the Seal of the Lawfull Qu. of the Realm nor pâ—ssed by her Authority but the Seal of an Vsurper and therefore could be no Warrant to him To the 2. That if any were as deeply to be touched in that Case as himself yet so long as no attainder was of Record against them they were nevertheless persons able in Law to pass upon any tryal and not to be challenged therefore but at the Princes pleasure After which the Duke and the rest of the Lords using but few words declaring their earnest repentance and imploring the Queens mercy confessed this Indictment of Treason and thereupon had Iudgement passed upon them as Traytors And the Duke with Sir Iohn Gates and Sir Thomas Palmer were accordingly executed on Tower Hill August 22. confessing the Iustice both of their Iudgement and Execution as TRAYTORS and not justifying themselves by the Act of 11 H. 7. After this Archbishop Cranmer though at first he refused to subscribe K. Eds. will to dis-inherit Queen Mary alleging many reasons against it yet was committed Prisoner to the Tower indicted arraigned condemned of High Treason in November following for aiding the Earl of Northumb. with Horse and Men against Queen Mary And Queen Jane herself though Queen de facto meerly passive not active in this case never aspiring after the Crown being proclaimed Queen against her will with the Lord Guyldsord her husband were both indicted arraigned condemned of High Treason and accordingly executed as Traytors Feb. 12. 1 Mariae the one for usurpation of the royal Estate AS QVEEN OF ENGLAND the other as principal adherent to her in that case both of them confessing that BY THE LAW THEY WERE JUSTLY CONDEMNED After which the Duke of Suffolk her father and sundry others were condemned of High Treason executed upon the same account and that by the judgement of all the several Peers Nobles Judges Lawyers and Great Officers of Engl. though guilty of the same crime seconded with the Judgement of the whole Parl. of 1 Mar. c. 16. which confirmed their Attainders as JUST and LEGAL notwithstanding the Statute of 11 H. 7. c. 1. which extends only to indemnifie those Subjects who doe their true duty and service of allegiance to their King and Soveraign Lord which none certainly do who adhere and joyn with an apparent Usurper in possession against their lawfull undoubted King and Soveraign Lord as they here adjudged and the Parliaments of 1 4 and 14 of King Edward the 4th long before no Acts of Parliament whatsoever being able to secure Usurpers Titles though Kings de facto to themselves or their posterity or to save their own or their adherents Heads from the block or their estates from confiscation as the recited tragical Presidents and Judgements prove against the absurd opinions of many Grandees of the Law in great reputation who take all Sir Edward Cooks and others Dotages for Oracles and well deserve a part in Ignoramus for being ignorant of these late notorious Judgements and authorities against their erronious opinions wherewith they seduce their silly Clyents and young Students of the Law to their great peril for whose better information I have the larger insisted on this point to rectifie this dangerous capital mistake which may hazard both their lives estates and souls to boot And so much in answer to the objected Presidents of Edward and Richard the 2d to prove the Commons Right of Judicature in Parliaments c. As good an evidence as that grave Sir E. Cook produceth to prove this House of Commons who had no Journal Book till â— Ed. 6. to be a distinct Court of Iudicature because upon signification of the Kings pleasure to the Speaker they do and may prorogue or adjourn themselves and are not prorogued adjourned by the House of Lords By which reason he might prove every Committee of the Lords or Commons House to be a distinct Court because they may adjourn and prorogue themselves without the House and all Commissioners for examination of Witnesses Charitable uses the petty Sessions of Justices of Peace all Country Committees Archdeacons and other visitors all Auditors of Accounts Arbitrators Referrees c. to be Courts because they may all adjourn themselves from one day and place to another when as their presenting of their own Speakers in and the Kings calling them into the Lords House at the beginning and end of every Parliament or Session and at the passing of Bills and their dissolution in the Lords
though amiable delightfull in themselves and gratefull to all true Philopaters Philologers and learâ—ed Nobles Statesmen Lawyers Scholars in this degenerous age wherein all sorts of Learning and insight in Records or Parliamentary Antiquities are very much decayed will yet be very displeasing to some sorts of ignorant heady extravagant persons who love darkness more than light because their deeds are evil but more especially to the Anabaptistical Levellers Lilburnians innovating Publicans and Republicans much like the Chaldeans of old a bitter and hasty Nation lately marching through the breâ—th of the Land to possesâ— the dwelling places that are not theirs they are terrible and dreadfull their judgement and dignity proceedeth of themselves they are all for violence they scoff at KINGS AND PRINCES ARE A SCORN UNTO THEM as appears by their late Votes Declarations Engagements not only against Kings and Kingship but the whole House of Lords and to â—lliterate self-conceited Lawyers and ignorant Members of the Commons House who deem that House and its Committees if not every Member of it the only Supream Judges and Judicature of the Realm paramount our Kings Lords Laws Liberties Great Charters and all other Courts of Justice having an absolute arbitrary unlimited power to act vote and determine what they please without appeal or consult which this Plea irrefragably disproves as a most gross and dangerous mistake for which they will frown upon it if not â—ate and prosecute me as their Enemy But the Sun must not cease from shining because weak and sore Eyes will be offended with its splendor nor seasonable truths of most publike concernment be concealed smothered in time of greatest need because ignorant erronious sottish â—air-braind Levellers or Innovator will be displeased with and storm against them they being always Sweet and lovely in themselves yea precious to the best of men and will prove victorious in conclusion though clouded suppressed maligned for the preâ—ent yea he who by the publication of such truths rebukes wise ingenuous mens extravagant actions and opinions for the present shall afterwards find more favour with them when they come to know themselves and their mistakes by meditating on the truths revealed to them heâ— he that flattereth them with his lips in their exorbitant actions or erronious opinions I shall therefore recommend this Plea for the Lords and all the truths therein discovered asserted to the omnipotent â—rotection and effectual blessing both of THE LORD OF LORDS and GOD OF TRUTH whose Eyes are upon the TRUTH in this sad age of Errors Falshoods Lies Fraud and desperate Hypocrisie wherein truth is fallen in the Streets and he that dares boldly assert it is reputed mad and maketh himself a prey And shall leave it as a lasting monument to posterity of my Cordial affection to the antient Parliamentary proceedings Lords Peers Laws Liberties Properties Great Charters of the English Nation and my sincere endeavours to plead their cause in the worst of times against all their Antagonists and professed Enemies though never so numerous and formidable albeit to my own private prejudice Whatever the Reader shall find wanting in this Plea relating to the Constitution Summons Proceedings of our antient English Parliaments in general or to the power Judicature Rights privileges transactions of our Kings Lords or House of Com. in Parl. in particular you may read at leisure in my Preface and Tables to An Exact Abridgement of the Records in the Tower of London from the reign of King Edward the 2. to Richard the 3. and in the Abridgement it self collected by that famous Antiquarie Sir Robert Cotton lately published which will better instruct the Readers in all Parliamentary affairs than all the slight unsatisfactory Treatises of our Parliaments hitherto published except this Plea which I humbly submit to the friendly Imbrace and impartial Censure of every Judicious Reader especially of my own profession for whom it is most proper whose general ignorance and mistakes in Parliament Antiquities proceedings and matters of the Crown hath brought some disparagement upon the function and led others into dangerous publike Errors which that this Plea may wipe off and rectifie hereafter for the common benefit ease settlement re-establishment of our late dissipated Parliaments and confused distracted Nations shall be the Vote and dayly prayer of Thy unfeigned Friend and his Countries publike unmercenary Servant WILLIAM PRYNNE Lincolns-Inne 6 Decemb. 1657. A Plea for the LORDS AND HOUSE of PEERS OR A short yet full and necessary Vindication of the Judiciary and Legislative Power of the House of Peers and the Hereditary just Right of the Lords and Barons of this Realm to sit vote judge in the high Court of Parliament THe treasonable destructive design of divers dangerous Anabaptists Levellers Agitators in the Army City Countrey and of Lilburn Overton their Champions Ring-leaders in this Seditious Plot to dethrone the King unlord the Lords new-model the House of Commons extirpate Monarchâ— suppress the House of Peers and subvert Parliaments the only obstacles to their pretended Polarchy Anarchy are now so legible in their many late printed Petitions Lâ—bels Pamphlets so visible in their actings and publike proceedings that it rather requires our diligence and expedition to prevent than hesitancy to doubt or dispute them they positively protesting against yea denying both King and Monarchy in their late printed Pamphlets Remonstrances with the Power Judicature of the House of Peers and their undoubted just Hereditary right to vote act or sit in Parliament because they are not elecâ—ed by the people as Knights and Burgesses are asserting That they are no natural issues of our Laws 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 Kingdom OUGHT TO ARISE meer arbitrary Tyrants Vsurpers an illegitimate and illegal power and Judicatory who act and Vote in our affairs but as INTRUDERS who ought of right not to judge censure or imprison any Commoner of England even for libelling against them refusing to appear before them reviling and contemning them and their Authority to their faces at their very Barr as Lilburn Overton boast and print they did or breaking any of their undoubted Privileges To accomplish this their design 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 down stiling and proclaming the Commons in their Petitions and Pamphlets The ONLY Supreme legal Judicatory of the Land who ought BY RIGHT to judge the Lords and their proceedings from whom they appeal for right and reparations against the House of Peers affirming That in the Commons House alone resides the formal and legal Supreme Power of England who ONLY are chosen by the People and THEREFORE IN THEM ONLY
and chief men in the Parliament together with the evident testimonie of the twelve Peers c. The reason is Because there was wont to be a cry or murmur in the Parliament for the Kings absence because his absence is hurtfull and dangerous to the whole Commonalty of the Parliament and Kingdom Neither indeed ought or may he be absent but only in the case aforesaid After which it follows The Archbishops Bishops and other chief of the Clergy ought to be summoned to come to the Parliament and also EVERY EARL 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 midst of the great bench and is bound to be present in the first and last day of Parliament And the Chancellort Treasurer and Barons of the Exchequer 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 afterwards the BARONS of England after them the EARLS Whereupon if the Barons of the Cinqueports be not come the Baronie from whence they are shall be amerced at an hundred marks and an Earl at one hundred pounds After the same manner it must be done to those who are Peers to Earls and Barons After which it relates the manner of placing the Earls Baron and Peers in Parliament Then adds The Parliament may be held and OUGHT every day to begin at one of the clock in the afternoon at which time the King is to be present at the Parliament and all the Péers of the Kingdome None of all the Peers of the Parliament may or ought to depart alone from the Parliament unless he have obtained and that in full Parliament leave from the King and all his Péers so to doe and that withall there be a remembrance kept in the Parliament roll of such Leave and Libertie granted And if any of the Peers during the term of the Parliament shall be sick or weak 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 find him sick then he may make a Proxie Of the Parliament the King is the Head the beginning and ending So this Treatise The Statute of 5 R. 2. Parl. 2. ch 4. enacts by Command of the King and Assent of the Prelates Lords and Eommons 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 accustomed within the Realm of England of old time And every person of the said Realm which from henceforth shall have the said Summons be he Archbishop Bishop Abbot Prior Duke Lord Baron Baronet Knight of the Shire Citizen of City Burgess of Burgh or other singular person or Commonalty do absent himself or come not at the said Summons except he may reasonably or honestly excuse himself to our Soveraign Lord the King he shall be amerced and otherwayes punished according as of old time hath béen used to be done within the said Realm in the said case Which relates unto and agrees expresly with that forecited out of Modus tenendi Parliamentum which took it out of this Act. If then all the Lords Peers in Parliament are bound to attend in Parliament being oft times there all called for by name and ought not to depart from it without the Kings and Houses leave under pain of Amercement and other punishment as this Statute resolves and 3 Ed. 3.19 Fitzh Coron 161. Stamford l. 3. c. 1. f. 153. Cook 4 Instit p. 15 16 17.43 28 E. 3. Nu. 1 2. 5 R. 2. n. 2. 8 H. 4. n. 55. and 31 H. 6. n. 45. Where fines were imposed on absent Lords most fully mamanifest then questionless they ought of right to sit in Parliament else it were the height of Injustice thus to fine them In the tenth year of King R. 2. this King absented himself from his Parliament then sitting at Westminster residing at Eltham about forty daies and refusing to come to the Parliament and yet demanding from them four Fifteens for maintenance of his Estate and outward Warres Whereupon the whole body of the Parliament made this answer That unless the King were present they would make therein no allowance Soon after they sent the Duke of Glocester and Bishop of Ely Commissioners to the King to Eltham who declared to him among other things in the Lords and Commons behalf how that by an old Ordinance they have an Act if the King absent himself 40 dayes not being sick but of his own mind not heeding the charge of his people nor their great pains and will not resort to the Parliament they may then lawfully return to their Houses And now sir said they you have been absent a longer time and yet refuse to come amongst us which is greatly to our discontent To which the King answered Well we do consider that our own people and Commons go about to rise against us wherefore we think we can do no better than to ask aid of our Cosen the French King and rather to submit us to him than unto our own 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 aâ—d the Kings wilfull absence Ranulf de Glanvil the first writer of our Common Laws in his Prologue to his book De legibus consuetuainibus Regni Angliae used in the reign of King H. the 2. under whom he flourished and his Predecessors writes thus of the Parliamentary Councils in that age and their Members power to enact Laws Leges Anglicanas licet non scriptas leges appellari non videtur absurdum cum hoc ipsum Lex sit quod Principi placet et legis habet vigorem eas scilicet quas super dubiis in Consilio desiniendis Procerum quidem Concilio et principis accidente authoritate constat esse promulgatas And lib. 13. cap. 32. f. 110. Cum quis itaque infra assisam Dom. Reg. id est infra tempus A Dom. Rege de consilio Procerum adhoc constitutum quod quandoque majus quandoque minus censetur So as the Parliaments under this King and his Ancestors consisted only of the King and Nobles who then made and enacted Laws by the Kings royal assent without any Knights Citizens or Burgesses elected by the people of which I find no mention in the Parliamentary Councils under
est satisfactum The Pope hereupon taking more boldness than before to trample the English Prelates Clergy under his feet fleece them imperiose solito imperiofius Praelatis Angliae demandavit ut in Anglia omnes beneficiati in suis beneficiis residentiam facientes tertiam partem bonorum suorum Domino Papae conferrent non facientes residentiam dimidiam multis adjectis durissimis conditionibus praedictum mandatum restringentibus per illum verbum et adjectionem detestabilem NON OBSTANTE quae omnem extinguit justitiam praehabitam The Bishops assembling in convocation to exact it the King thereupon by his Nobles advice and instigation sent Sir John de Lexeton a Knight and Lawrence St. Marin his Clark to them strictly commanding them in the kings behalf not to consent by any means to this contribution demanded by the Pope to the desolation of the English kingdom The next year 1247. Vrgente Papali mandato redivivo de importabili contributione Papali praetacta ad quam Episcopi in generali Concilio Clerum infeliciter obligarent fecit Dominus Rex MAGNATES SUOS nec non et Angliae Archidiaconos per scripta sua Regia Londini convocari Quo cum pervenissent die ptaefixo Episcopi omnes sese gratis absentarunt ne viderentur propriis factis eminus adversari Sciebant enim corda omnium usque ad animae amaritudinem sauciri Convenerunt tunc ibidem Archidiaconi Angliae nec non et totius regni Cleri pars non minima CUM IPSIS MAGNATIBUS conquerentes communiter super intolerabilibus frequentibus exactionibus Domini Papae pro quibus Dominus Rex non mediocriter compatiendo tristabatur Res enim publica periclatabatur et commune negotium regni totius agebatur imminebat tam populi quam cleri inanis desolatio et cunctis temporibus inaudita After long consultation the King and Nobles by common advise resolved to send a remonstrance of all their grievances together with Letters in the name of the whole Parliament and kingdom to the Pope and his Cardinals speedily to redress them which Letters they sealed with the Common Seal of the City of London thereby obtained some shew of redress of their grievances which the Nobles further prosecuted and complained of in another Parliament the selfsame year Dominus Rex comperiens regnum suum enormiter undique periclitari by the Popes exactions taxes oppositions jussit OMNEM TOTIUS REGNI NOBILITATEM CONVOCARI ut de statu ipsius tam manifeste periclitantis Oxoniae contrectarent Praelatos autem ad hoc Parliamentum vocavit anxius quia videbat eos tam frequenter per Papulâ—s extortiones depauperari quod frequentia consuetudinem regni ruinam manifeste minabatur Sperabatur igitur communiter aliquod salubre Ecclesiae et universitati ibi statuendum quod tamen omnes fefellit through the Prelates and Clergies cowardise and the kings overmuch compliance with the Pope the Nobles only continuing constant in their oppositions against these papal exactions and enormities being more zealous for the Churches Clergies Prelates liberties against the Popes intolerable exactions oppressions incroachments than they themselves and the only persons who manfully and constantly maintained them when the King Prelates and Clergy through fear cowardise and treachery betrayed and deserted them Anno 1264. Pope Urban being much incensed against the BARONS spoiling the goods of Ecclesiastical persons who were Aliens advanced by his provisions said That he desired to live no longer but till he had subdued the English whereupon he sent a Legate towards England a great Person to wit Sabin a Bishop Cardinal to interdict the Land and excommunicate THE BARONS the oppugners of his Provisions But when he would have entred England he found he could not safely do it by reason of the Barons resistance Whereupon citing some Bishops of the Realm first to Ambayonne and afterwards to Bononia Sententiam excommunicationis et interdictionis super Civitatem Londoniae et 5. Portus necnon quasdam personas illustres ET NOBILES REGNI fulminatum commisit exequendam At illi Sententiam illam contra justitiam illatam attendentes appellarunt ad Papam ad meliora tempora vel ad generale Concilium necnon et supremuÌ„ judiceÌ„ certis de causis et rationibus commendabilibus Quae postea appellatio in Anglia congregato apud Radingum Concilio recitata est et ab Episcopis et Clero approbata et executa Interdictum autem licet inviti suscipientes a Legato praedicti Episcopi secum detulerunt Sed cum applicuissent Doveriae scrutinio ex more in portu facto intâ—â—â—eptum est a Civibus et in minutias dilaneatum jactatur in mare So little did they then regard and so much detest and scorn the Popes unjust Interdict in so just a cause An. 2 E. 1. Rot. Fin. m. 9. in Sched Cook 4 Inst p. 13. Pope Gregory by his Letters demanding the rent of 1000. marks by the year of K. Ed. the 1. reserved for England upon his regranting the Realm to King John the king writ thus to him Se sine PRAELATIS ET PROCERIBUS REGNI NON POSSE RESPONDERE quod jurejurando in coronatione sua fuit astrictus QVOD JURA REGNI SUI SERVARET ILLIBATA nec aliquid quod Diadema tangit Regni ejusdem absque ipsorum requisitus consilio facere And the Parliament being ended he could doe nothing without them who afterwards gallantly opposed his usurpations as will appear by this following president King Edward the 1. in the 29. year of his reign being summoned by the Pope by himself or his Proctors to declare his right to the Realm of Scotland in his Court at Rome where he should receive justice concerning it The King thereupon called a Parliament to consult about it where he refused to return any answer by himself but committed it to the Earls and other Lords of the Land to return the Pope an answer thereunto Who making a large and learned Historical Remonstrance of the subjection of Scotland and her Kings to the Kings of England and of their Homage done to them in all ages as their Soveraign Lords sent it to the Pope with this notable Letter signed as Mat. Westminster and Sir Edward Cook inform us with no less than 100 Seals of Arms of Earls and Barons in the name of the whole Parliament and Kingdom Sancta Romana Ecclesia per cujus ministerium fides Catholica in suis artibus cum ea ut firmiter credimus et teneamus maturitate procedit quod nulli praejudicare sed singulorum jura conservari velit illaesa Sane convocato nuper per Serenissimum Dominum nostrum Edwardum Dei gratia regem Angliae illustrem Parliamento apud Lincolniam generali idem Dominus noster quasdam literas Apostolicas quas super certis negotiis conditionem et statum Regni ex vestra parte receperat in medio exhiberi ac
and otherwise punished for their contempt because bound therto by their voluntary acceptance of such a special Patent and dignity But if they be summoned only by a general Writ against their wills being no Lords of Parl. by special Patent or Writ before this doth neither make the one nor other Barons nor ennâ—ble their heirs males or successors nor oblige them to serne nor subject them to any fine for contempt for then the King by his Writ might summon all the Knights Esquires Gentlemen and any other Commoner Freeman Lawyer Clergy man of the Realm to the Lords House as a Member at his pleasure and fine them for a contempt in not appearing and thereby increase that House in infinitum and make it a mungril House of all sorts of degrees and professions of men instead of aâ— House of Lords to its utter subversion against the fundamental constitution and privilege of that House Therefore such Writs of summons must be void and null in Law as well as the Patent to Abbot Banham as Sir Ed. Cook asserts it for that he was neither Baro nor held per Baroniam Now whereas he asserts That Knights and Esquires who hold not by Barony cannot refuse when summoned by Writ to serve the King in Parliament but yet Abbots and other regular Prelates that hold not by Barony may because they are dead in Law as to secular affairs and therefore not capable to have voice in Parliament unless they hold by Barony and were called by Writ This reason of the difference is most absurd and unreasonable For 1. They are both Subjects to the king alike and so both equally obliged to serve and counsel him in Parliament 2ly If their tenures by Barony could make them capable to have place and voice in Parliament though dead in Law quoad secularia then much more the kings and the kingdoms need of their presence counsel and advice in Parliament touching the weighty affairs concerning himself and the defence and preservation of the Realm and Church of England when specially summoned by his writ to Parliament 3ly Though they were dead in some sence only in respect of their natural capacities to the world yet in their politick capacities they were not so but secular still to sue purchase advise c. as well as Laymen in the right of their Houses 4ly Parliaments being always summoned as well to advise of Ecclesiastical things touching the Church as of temporal things concerning the Realm of England their being dead to the world quoad secularia could no more enable them to refuse to serve in Parliament then Laymen quoad Ecclesiastica negotia therein treated of which concerned the Church and Laymen according to the doctrine in Popish times might as well refuse to serve in Parliament when summoned because they were no Ecclesiastical or religious persons who were properly to consult of the affairs of the Church of England as religious persons be exempted from and refuse to serve therein because dead to the world quoad secularia negotia concerning the King and Realm of England there debated and consulted of 4ly The true and only ground then why such Abbots Priors and all other Clergy men who held not by Barony might refuse to serve in the Lords House of Parliament when summoned by Writ was this that they held not of the King by Barony and upon this ground alone the Abbot of St. James without Northampton summoned to Parliament by Writ Anno 12 Ed. 2. upon his Proctors appearance and Petitions for him in Parliament recorded at large by Mr. Selden out of the Leger-book of the Abby worthy perusal being most full in point was discharged from his attendance his name struck out of the Roll and Register of the Chancery by the Chancellor and his Council as not one of the list of those who ought to be summoned for this very reason because NON TE NET PER BARONIAM nec de Rege in capite sed tantum in puram perpetuam Eleemosynam nec ipse Abbas nec Predecessores sui unquam in Cancellaria irrotulari fuerunt except only in 49 H. 3. m. 10. Schedula voluntarie nec ad Parliamentum citati hucusque VNDE PETIT habuit remedium And upon the self same reason the Abbot of Leicester and his successors were by special Patent in 26 E. 3. de veniendo ad Parliam Consilia nostra et haeredâ—m nostrorum de caetero quieti sint et exempti in perpetuum hough this Abbots predecessors had formerly been summoned to and sate in Parliaments interpolatis vicibus but noâ— continuè because idem Abbas aliquas terras senteâ—ementa de Nobis per Baroniam seis aâ—o modo non tenet per quod ad Parliamenta seu Consilia nostra venire teneatur The King reciting this as the only ground of his exemption and thereupon Nolentes Abbatâ—m indebite sic vexari granted him and his successors this Patent of Exemption upon which his name was cancelled in the Clause Roll of 25 E. 3. part 1. m. 5. dorso and this written in the margin against it Abbas Leicestriae cancellatur quia habet cartam Regis quod non compellatur venire ad Parliamentum And that of Dors Claus 11 E. 3. par 2. m. 11. 13 E. 3. par 2. m. 28. 1. cited by Mr. Selden Sir Edw. Coke in his Margin mentioned in a Bill in Parliament Que toutes les religioses que teignont per Barony sayent tenus de venier au Parlament is also direct iâ— point That those who hold not by Barony are not bound to serve in Parl. be they Religious persons or Lay persons who are not Peers or Lords of Parliament upon general writs of summons such Summons of them being AN UNDUE VEXATION OF THEM as King Edward stiles it in his Patent unless they voluntarily appear upon such a Summons as this Patent informs us those who were summoned in 49 H. 3. all did This reason therefore exempting all Abbots Peers and religious persons from service and attendance in the Lords House in Parliaments though summoned thereto by writ must necessarily exempt all Knights and Laymen from it there being the self same ground justice equity for it in both yea the selfsame unjustice vexation mischief to both and by consequence the selfsame Law And if this be Law as these Presidents Judgements Records expresly resolve it to be beyond contradiction Then it inevitably follows that the General writ of Summons to Parliament alone doth neither create the persons summoned to it nor their heirs or successors Barons Lords or Peers of the Realm unless they hold by Barony no although they sit once or twice in Parliaments by vertue of them or interpolatis vicibus but not continue as the Abbots of Leicester did for then they could not allege or plead their not holding Lands of the King in Barony or any other tenure binding them to sit and serve in Parliament
in barr of the Writs of Summons directed to them because those writs themselves did ennoble and make them their posterity successors Peers of Parliament though they held no Lands by Barony 8ly it is undeniable by sundry presidents that the Kings general writs of Summons create none Lords or Peers of Parliament for life or Inheritance if they hold not by Barony which I shall evidence by these presidents in point To the Parliament of 49 H. 3. there were no less than 64 Abbots 36 Priors the Master of the Temple and 5. Deans of Cathedral Churches namely of York Exeter Salisbury Lincoln Bath and Wells summoned by general writs as the Bishops Earls Barons and other Nobles were yet this did not make themselves nor their Successors Barons or Peers of Parliament for neither of these Deans nor their successors were ever afterwards summoned to Parliament as they would and must have been had this writ made them or their successors Barons and Lords nor any of the Abbots or Priors but such only who held by Barony who were constantly summoned but those who then held not by Barony or Militare servitium if casually summoned to one Parliament were yet upon their complaints thereof omitted and discharged in the next as the Writs of Summons themselves attest and Mr. Selden manifests out of them Therefore the Writs did neither create them Barons for life much less their successors after them for then they should still have of right been summoned to succeeding Parliaments and ought not to have been discharged In the 18 of Ed. 2. A Writ of Summons was sent by the King Magistro Gilberto de Middleton Archidiacono Northampton Officiali Curiae Cantuariensis Magistro Roberto de Sancto Albano Decano de Arcubus London But no writ was ever directed to them afterwards but in this one Parliament only therefore it made them not Lords and Barons for life inheritance or succession The like is evident by the forecited presidents of the Abbots of St. James Leicester and other Priors So the Gardians of the Spiritualties of Bishops during the vacancy and their Vicars Generals during their absence beyond the Seas have been frequently summoned to Parliaments by writs But being summoned only as substitutes or in the right of the Bishops or Bishopricks it made them no Barons or Peers neither were they ever esteemed such heretofore or at this day as Mr. Selden informs us And as it was thus amongst Abbots Priors Deans and other Clergy-men that these writs made them not Barons for life nor yet in succession so by the selfsame Law and Reason they made no Laicks who held not by Barony such for life or inheritance Whence we find many such in the summons to Parliament of King Henry 3. Ed. 1 2 3. R. 2. H. 4 5 6. who were summoned once twice or thrice but never afterwards nor any of their name or posterity of which no other solid reason can be given but that these general writs of summons made them neither Barons for life nor inheritance no more than they did Abbots Priors or Clergymen For example I find Edmond Barstaff Robert de Crendon H. Huse Ader de Estlye Serton de Hansladorn and sundry others summoned by Writ to Parliament in 33 E. 1. Peter Corbet Andrew de Hamloe Henry Tregor Maurice de Buen Roger Banuent and some others in 13 E. 2. Simon Ward Henry Dandle William Blunt in 4 E. 3. Roger de Claudes Ralph de Bevil William de Kineston in 14 E. 3. Ralph Bulmer Thomas Bugworth in 22 E. 3. William de Ridehal in 27 E. 3. Robert de Colvil John de Kirton John de Wodhurst John Northwood John de Strivelin in the Parliament summons of 37. and one of them again of 38 E. 3. Henry Quarts in 6 H. 4. Henry Cuart in 7 H. 4. William Cheyney Chief Justice in 4. 6 H. 6. But neither of their persons nor any of their posterity were ever after summoned that I find to any other Parliaments as no doubt they would have been had those their writs of summons made them Lords and Barons In the Clause Roll of 5 E. 3. m. 12. dorso the King sent writs into Ireland to William de Burgh Earl of Ulster James de Botâ—ler Earl of Ormond William de Bremigham Knight and Walter de Burgh strictly enjoyning them with all speed to come over into England Nobiscum tractaturi vestrumque Consilium impensuri concerning his intended Voyage in person into Ireland and setting the peace and affairs therof and I read in the reign of King Henry 3. Edward the 1. 3. and other of our Kings that the King of Scots and his Nobles were oft summoned by Writs to our English Parliaments concerning the affairs of Scotland yet these writs made none of them Peers and Barons of our English Parliaments From all which I may safely conclude Sir Edward Cooks and others Opinions to be no Law but a clear mistake that a general writ of Summons doth or can create any who hold not by Barony Peers or Barons for life much less in fee or fee-tayl Therefore such may be afterwards elected Knights or Burgesses of Parliament and be Members of the Commons house and refuse to sit or serve in the Lords house upon summons without contempt or fine but no Baron or Peer of the Realm may be thus chosen or neglect his service in the Lords house Finally Mr. Cambden in his Britannia p. 120 122. Apologia p 11. and Mr. J. Selden in his Titles of Honour part 2. chap. 5. Sect. 31. p. 708. to 718. assert That as some Spiritual Barons who were conceived to be Barons by writ as well as by tenure though sometimes summoned to Parliament by writ were wholly omitted at length as not having of right Voice and Place with the rest because they held not by Barony So sundry of the Lesser Barons and Tenants in Capite holding only of the King as Vavasors by Knights service and not by an intire Barony were likewise excluded the Parliament and not summoned thereunto by King John Henry the 3. Edw. the 1. being not great and honourary Barons nor having estates sufficient to support that dignity and that as Mr. Selden conceites by some Law made not long before the Great Charter of King Iohn procured by MAJORES BARONES who foreseeing that their power and dignity might suffer much diminution if the new tenants in chief or Patentees of Escheated Baronies and the rest that were decayed should have equality with them and be indifferently Barons of the Kingdom every way as they were procured a Law in some of the Parliaments that preceded the Great Charter of King John by which themselves only should hereafter be properly stiled summoned as BARONS and the rest only Tenants in chief or Knights which Titles shold be given them as distinct names from Barons which could not but much lesen the dignity and honor of the rest
And if so then questionless such who hold not by an intire Barony and are not Majores Barones by Patent or Inheritance now cannot be created such by a meer general writ of summons neither can the King by his general writ create or make them such against this antient Law and usage ever since And the Earls Lords and Great honorary Barons who excluded all such from sitting in Parliament with them as Barons and their Peers then may much more exclude and refuse to admit such into their house or to sit with them if summoned now because their dignity honor power would suffer much diminution thereby and the King might by writ at any time call so many to their House as might overtop overâ—ote and alter their very Constitution as an House of Peers I shall close up this point of the Lords sole right to sit in Parliament with one or two memorable presidents In the 7. year of King Edward 2. as Walsingham stories in quindena Paschae per Regis brevia citatae sunt generaliter omnes Parliamentales personae pro Parliamento teuendo Londoniis Sed multis Proceribus praetendentes impedimenti causas nihil hâ—c vice factum suâ—t So Anno 1316. King Edward in the 9th year of his reign celebravit Concilium apud Clarindon sed Magnates noluerunt interesse Whereupon nothing was there effected The Lords presence being held then so necessary that by reason of the absence of divers of them upon some real or pretended impediments though all legally summoned by the Kings writs nothing was done or concluded by those who met who held themselves no compleat or legal Parliament without them Whereas in the Parliament of 5 E. 2. some of the Judges and Assistants departing from the Lords and divers Knights Citizens and Burgesses from the Commons house without license yet the Lords continuing all together and making Ordinances for regulating the Kings house and Revenues the Parliament still continued and these special writs were sent to recall the Judges and Lords Assistants quod redeant exinde et sine licentia nostra speciali durante Parliamento praedicto non recedatis Et hoc sicut indignationem nostram vitare volueritis nullo modo omittaris Teste Rege apud Haddely 12 Septemb. PER CONSILIUM And this general writ was sent to the Sheriff of Yorkeshire and all other Sheriffs of England to summon all the Knights Citizens and Burgesses in their several Counties to return thither or else to elect other fit persons in their places Praecipimus tibi firmiter injungentes quod illos Milites Cives Burgenses de Balliva tua quos nuper ad praesens Parliamentum nostrum apud London inchoatum de mandato nostro venire fecisti et qui ab eodem Parliamento certis de causis recesserunt quod redeant exinde c. vel alios ad hoc idoneos loco ipsorum SI AD HOC VACARE NON POSSUNT usque ad Westmonasterium ad dictum Parliamentum quod ibidem duximus continuandum c. proxime futur ad ultimum cum sufficienti potestate Comitatus tui Civitatum Burgorum praedictororum ad consentiendum hiis quae tunc ibidem contigerint ordinari c. Teste Rege apud London xi die Octobris This Parliament being thus continued Claus 5 E. 2. m. 25. Special license was granted to some LORDS to goe home who made Proxies to other Lords to supply their places by these words Deputamus in loco nostro in Parliamento and this in the Writ of Prorogation This I hope will suffice to convince all Levellers and Gainsayers of the LORDS undoubted antient Hereditary just Right and Title to sit vote in all ENGLISH PARLIAMENTS though not elected by the people SECTION II. Wherein the Lords House sole Right of Judicature in Parliament without the Commons is fully cleared by Presidents Histories Records in all ages and undeniable Reasons and that both in Criminal Civil Ecclesiastical Causes of all sorts as well in cases of Commoners and Clergymen as Temporal Peers persons of the highest degree proper for Parliament IT is the General confession resolution assertion both of Lawyers Law-books the Parliament and Statute of 31 H. 8. c. 10. and all who have written of our Parliaments That the Parliament of England is the antientest honourablest highest Court and Supremest Judicature in the Realm to whose Judicature all other Courts Persons Subjects of the Realm are subject accountable for all Injuries Oppressions Crimes Wrongs Corruptions Errors Abuses Grievances Misdemeanors Treasons Contempts Frauds false Judgments and matters of publike or privat concernment not properly triable remediable or punishable in other inferior Courts of Justice and that Court to whom all Appeals concerning Misproceedings Errors or Injustice in other Courts or places ought to be made and from whose Injustice and Sentence there is no appeal but only to another Parliament as in the case of General Councils as Divines assert there is no appeal but to another general Council in Ecclesiastical affairs concerning the Universal Church or matters of Faith This being an unquestionable Principle and Truth the sole Question will be in what House or Persons in Parliament this Supreme Judicatory or judicial power resides Whether in the King alonâ— or Lords alone or King and Lords jointly or in the House of Commons alone never made a question â—il now by Lilburn and Overton or in the King and House of Peers not separate from but joyntly with the Commons House And for my part I conceive it resides wholly and solely in the King and House of Lords not in the House of Commons which hath no part nor share therein singly considered in it self nor yet joyntly with the King and Lords but only in some special cases and proceedings as when and where the King and Lords voluntarily require their concurrence or where the judgement and proceedings in Parliament are by way of Bill or Act of Parliament or when a judgement passed or confirmed by Bill or Act to which the Commons consent was requisite is to be altered or reversed but in no cases else that I can find To make this ouâ— beyond contradiction it must be necessarily granted by all and cannot be gainsaid or disproved by any that this Supreme power of Judicature hath been vested in our Great Councils and Parliaments even from their beginning and original institution it being the antientest as well as highest and honourablest of all other Courts That it had this Soveraign Jurisdiction vested in and exercised by it both under our British Saxon Danish and Norman Kings I have elsewhere evidenced and shall anon make good by undeniable presidents Now the Great Parliamentary Councils under them consisted only of the King the Ecclesiastical and Temporal Lords Earls Barons Nobles without any Commons House or Knights of Shires Citizens or Burgesses elected by the people as I have already touched and manifested more fully in other Treatises yea
kingdom being ad omne scelus paratus Anno Dom. 1102. There was a GENERAL Council held in the Church of St. Peters in Westminster on the Westside of London Communi assensu Episcoporum et Abbatum et Principum totius regni huic conventui affuerunt Anselmo Archiepiscopo petente a Rege PRIMATES REGNI quatenus quicquid ejusdem Concilii auctoritate dâ—cerneretur VTRIUSQUE ORDINIS concordi cura sollicitudine tatum servaretur sic enim necesse erat Iâ— this Council the Sin of Symony was first of all condemned by the authority of the holy Fathers and Wido Abbot of Pescore Wimundus of Tavestock and Baldwin of Ramsy Godric of Burgh Haymo of Cernel Egelric of Midleton being therein convicted of Simony were removed and deposed for it by this Council and Richard Abbot of Ely Robert of St Edmonds and the Abbot of Miscelen deposed for other particular crimes and offenceâ— Aâ—oâ— which the King being much incensed against Anselm and other Bishops for refusing to consecrate those Bishops whom the King invested with a staff and ring the King and Anselm having a hot contest about it at Canterbury Ne ipse perdendo suorum jura Anâ—ecessorum ipsis vilior esset Anselm requested the King â— deferr â—he business till Easter ut audâ—to Episcoporum Regniâ—ue Primatum Concilio qui modo non assunt respondeâ—m hiâ— which the â—ing consenting to at Easter communis Concilit vocem unam accepit that he should goe to Rome to the Pope to procure a repeal of the Canon made against investiâ—ures and that as the Kings Embassador Regis preces Regnique negotia Apostolicis auribus expositurus Anselm undertaking the journey to Rome like an Arch-Traytor so incensed the Pope against investitures and the King That William Warenast the kings Embassador telling him Hâ— knâ—w the King would rather lose his Crown than this Privilege of Investitures The Pope thereto replyed Yea let him lose his head also if he will whilst I live he shall never appoint any Bishop in his Realm but I will resist hâ—m what I may The King hereupon by the advise of his Nobles prohibited Anselm to return into England and seised all his Temporalties and â—oods moveable and unmoveable into his hands keeping him in exile for 9 years space after which he was conditionally restored at the mediation of the Kings Sister Adela Anno 1106. Robert Duke of Normandy was first adjudged to a shamefull cruel death and after that to have his eyes pulled out and he kept perpetual Prisoner and Earl Morton with others adjudged to perpetual prison BY THE PEERS for taking up arms against King Henry the 1. King Stephen having against his own the Bishops and Nobles Oaths to King Henry and Maude usurped the Crown Anno 1199. There were divers rumours spread abroad that Robert Earl of Normandy and Mawde would invade England and that Roger Bishop of Salisbury and Alexander his Nephew Bishop of Lincoln who were very powerfull wealthy and had built fortified and furnished divers strong and stately Castles would upon the Empress landing surrender them to her and revolt from Stephen to her party Paternorum scilicet beneficiorum memoria inducti being both advanced and inriched by her father Whereupon the Nobles oft times wished Stephen to compell them speedily to resign their Castles to him least he repented too late for not doing it when they were in the Enemies power Thereupon the King on the 8 of July apud Oxenford FACTO CONVENTU MAGNATUM summoned both these Bishops to this Parliamentary Assembly to which Bishop Roger was very unwilling to come having a great reluctancy in his mind against it whereupon he excused his coming by reason of his age and infirmity but that would not be admitted come he must and did When these Bishops came to Oxford there fell out a sudden quarrel between the servants of the Bishops and the servants of Alan Earl of Britain as they sate together at the Table the Bishops men quarrelling with the Earls and falling first a fighting with one another with their fists and at last with their swords a sore fray was made divers being wounded on either side and one slain the Earls servants being put to slight by the Bishops The K. taking this occasion Conveniri jussit Episcopis ut Curiae suae satisfacerent de hoc quod homines eorum pacem ipsius exturbassent Modus fatisfactionis foret ut claves castellorum suorum quasi fidei vadis traderent The Bishops said they were ready to give the King satisfaction but delaying the surrendring of their Castles he commanded them to be more strictly watched lest they should depart and the king carrying the Bishop of Salisbury with him besieged his Castles till they were surrendred to him by composition This act of the king was variously interpreted and very iâ—l resented by all the Bishops who thereupon revolted from him first in their affections and then by their actions to Mande when she arived and elected declared her right heir to the Crown Henry Bishop of Winchester the Popes Legat though King Stephens own Brother publikely to the Kings face as well as privately affirmed Si Episâ—opi tramitem Justitiae in aliquo transgrederentur non esse Regis sed Canonum judicium sine publico et Ecclesiastico Concilio illos nulla possessione privare debuisse Regem id non ex rectitudinis zelo sed commodi sui compendio fecisse qui Castella non Ecclesiis ex quarum sumptibus et in quarum terris constructa erat reddiderâ—t sed Laicis eisdemque parum religiosis contradiderit c. Quapropter vigorem Canonum experiendum ratus CONCILIIO quod quarto Calend Septembris celebraturus erat Wintoniae fratrem Stephanum incunctanter adesse praecepit Dicto die omnes fere Episcopi Angliae cum Theobaldo ARCHIEPISCOPO Cantuariensis venerunt Wintoniam In which Councâ—l the Bp. of Winchester first reading his Legats Commission in England granted him by the Pope and then relating the great indignity done by King Stephen to those Bishops by imprisoning their persons and seising their Castles against the Canons demanded the Archbishops and Bishops advice what to do therein concluding Se ad executionem Concilii nec pro Regis amicitia qui sibi frater erat nec pro damno possessionum nec etiam pro capitis periculo defuturum Rex causae suae non diffâ—sus Comites in Concilium misit quaerens cur vocatus esset Responsum est à Legato in compendio Non debere illum qui se Christi fidei subjectum meminisset indignari si à ministris Christi ad satisfactioneÌ„ vocatus esset tanti reatus conscius quantum nostra secula nunquam vidissent c. Consulte vero in praesentiarum Rex faceret si rationem facti sui redderet vel Canonicum judicium subiret Ex debito etiam oportere ut Ecclesiae faveret cujus sinu exceptus non manu militum in regnum promotus fuisset
dominum nostrum jam elapso irae tempore haec innotuisse Praeterea si aliquid â—iolentiae ipsi Henrico intuleritis ecce Episcopus Londinonsis qui spiritualem et alii amici ejus militares qui vindictam exercebunt materialem et sic in magna parte cessavit Extunc igitur procurante efficaciter Comite Richardo et Episcopâ— memorato mitius actum est cum eo Dictum enim est domino Regi secretius quod mirum est quod aliquis ei curat servire cum eis post ministerium etiam mortem nititur inferre Promissa igitur quadam pecuniae summa a mortis discrimine recessit liberatus After which he paying to the King 2000 marks for a fine and being reconciled to the King ad Curiam est reversus immemor laqueorum quos evaserat Here we have 1. A corrupt Judge accused of bribery by others and by the King of rebellion and sedition and that before the Lords in Parliament 2ly A Proclamation for all that were grieved to complain against him 3ly A rash unjust sentence given against him by the King himself for any man that would to kill him with impunity 4ly the Lords opposition and contradiction of this sentence and its execution as unjust and dangerous 5ly A remission of his sentence by the Lords mediation and a fine imposed and paid to the King for his offences In the 49 year of King Henry the 3. at the Parliament held at Winchester divers Commoners as well as Lords were attainted and condemned of High Treason for levying war against the King their persons imprisoned their lands and goods confiscated and the liberties of the City of London forfeited by judgement of the Lords Anno â—290 King Edward the 1. held a Parliament at London at which time Rex auditis multorum queremoniâ—â— fere Justiciarios omnes de falsitate deprehensos a suo Officio deposuit puniens eos juxta demerita grâ—vi mâ—a by the advice of his Lords in Parliament It appears by the Clause Roll of 5 E. 2. m. 22. dorso and Rot. Finium 5 E. 2. m. 11. in Schedula that in a Parliament held at Stamford 3 E. 2. the Commons of England exhibited sundry Articles of complaint to the King Amongst others that they were not used as they ought to be by THE GREAT CHARTER in taking Prises and Purveyances without mony c. That the King by his Ministers took ijs of every Tun of wine and ijs a cloth from Merchants aliens and 3 d. pur aver de poys to the damage of his people and hinderance of trade which new Impositions being against Law the King promised to redress for the future and to content himself with the Prises and Customs antiently due They likewise complained of the abuses oppressions and extravagances of Purveyors Constables of Castles and Escheators and abuses of Protections and Pardons granted by the King to Murderers and other Malefactors to their incouragement whereto redress was promised In their 6. Article they complained That the Knights Citizens and Burgesses of Parliament came up with divers Petitions for matters not remediable at the Common Law and could not finde to whom to deliver them Whereunto was answered The King willed that in his Parliaments for time to come certain persons should be appointed to receive Petitions and that they should be delivered TO HIS COUNCIL as was used in the time of his Father and examined and answered by him with their advice Whence we find in all our Parliament Rolls ever since in the beginning of every Parliament certain persons nominated by the King and Lords being Members or Assistants of the Lords house to receive the several Petitions of England Ireland Scotland Gascoigne Iersey Gernsey Alderney and other Isles and other persons of the LORDS House appointed to trie examin and answer them in the Kings name and behalf as he by their advice shall think meet and sundry Petitions of Grievances of all kinds presented to them and answered accordingly by the King and Lords in every Parliament as well by the whole house of Commons as by particular Counties Cities Corporations and private Persons a most clear Evidence that the King and Lords are the sole Judges of all criminal and civil causes and Grievances of the Commons in Parliament since they thus constantly petition them for redress and that the Commoners are only Petitioners not Judges as the Parliament roll of 1 H. 4. n. 79. resolves in direct terms Claus 8 E. 2. m. 7. dors The Chaplains of the House of Converts exhibited a Petition in Parliament against Adam de Osgodby the Keeper thereof for putting them out of their lodgings and placing his Clerks therein they being founded by King H. 3. to pray and sing Masses for his and his ancestors Souls and not to lodge the Clerks of the Chancery Upon consideration of the Petition by the Lords and Councel in Parliament it was referred to the Chancellor to examin and determine tanquam principali Custodi omnium Hospitalium et Domorum de eleemosyna Domini Regis fundatorum ut ipfe inde faceret quod de jure esset faciendum He sends a Commission to the House to inquire the truth of the complaint and finds the Complaint unjust and that the Keeper of the House was falsly charged and that especially by William de Okelines being one of the Chaplins Whereupon consideratum est per Cancellarium quod Willielmus idem nihil haberet de contentis in petitione sua praedicta sed quod committeretur ad custodiam suam pro falsâ— querela sua castigandus juxta discretionem dicti custodis Pasch 8 E. 2. Norfolk The Archdeacon of Norfolk was accused for citing the Countess of Warren being the Kings Neece and divorced from her husband to the damage of the King 2000 l. and it was adjudged by the Lords in Parliament against the Archdeacon quod nec citatio nec summonitio fieri debet versus eot qui sunt de sanguine Regis quia illis Major reverentia debita est and therefore he was fined About the year 1316. when the Northumberland Soldiers like some in this age raised against the Scots de tyronâ—bus facti sunt Tyranni de defensoribus destructores de propugnatoribus proditores c. one John Tanner said openly that he was heir of England Therefore at Northampton before the King and Lords he was proved false and hanged and drawn See more of him in Fabians Chronicle part 7. Anno 1314. p. 169. who relates that he reported he was son to King Edward the 1. but was stoln out of his cradle by a false nurse and Edward who was anothers son laid in the cradle for him and that he had a Fiend in form of a Câ—t whom he served 3. years which assured him he should be King of England In the Parliament of 18. E. 1. the Prior of Trinity in London and Bago de Clare were attached brought into the Parliament there
special Clause inserted into the Writs of Summons Nolumus autem quod tu seu aliquis alius Vicecomes regni nostri aut Apprentius aut aliquis alius homo ad Legem aliqualiter sit electus as appears by the Exem â—caâ—ron thereof in the Claus Roll of 5 H. 4. pars 2. m. 4 dorso in the Tower which I have viewed with mine own eyes by sundry transcripts thereof in Manuscripts and by this testimony of Thomas Walsingham who lived in writ the History of that time Direxit ergo Rex Brevia Vicecomit bus ne quosquam pro Comitatibus eligerent quovismodo milites qui in jure Regni vel docti fuissent vel Apprenticii sed tales omnino miâ—teren ur ad hoc nâ—gotium quoâ— constat ignorare cujusque juris methodum factumque est ita Whence he stiles it in his Margin PARLIAMENTUM INDOCTORUM No Lawyer being elected by reason of this Clause grounded on the forecited Ordinance Sir Edward Cook who is not only full of mistakes and mis-recitals of Records but most confident in them citing this passage of Walsingham thus bodly contradicts him But the Historian is deceived for there is no such Clause in these Writs but it was wrought by the Kings Letters by pretext of an Ordinance in the Lords House in 46 E. 3. when as the Writ it self in the Clause Roll concurring which Walsingham ascertains me that Sir Edward himself was deceived not the Historian by whom or upon what mis-information I know not And that he was so in truth we have his own expresse confession and testimony against himself within few leaves after At the Parliament holden at Coventry Anno 6 H. 4. the Parliament was summoned BY WRIT and by coâ—ler of the said Ordinance of Parliament in the Lords House in 46 E. 3. it was forbidden that no Lawyer should be chosen Knight Citizen or Burgess by reason whereof this Parliament was fruitless and never a good Law made thereat and therefore called Indoctum Parliamentum or Lack-latin Parliament And seeing these Writs were against Law ergo this Clause against Lawyers elections was in the Writs themselves Lawyers ever since for the great and good service of the Commonwealth have been eligible And then contradicting himself again in the very next lines he addes And albeit the prohibiting clause had been inserted in the Writ implying it was not yet bâ—iâ—g against Law Lawyers were of right eligible and might have been elected Knights Citizens or Burgesses in that Parliament of 6 H. 4. His reason is because Lawyers being eligible of Common right cannot be disabled by the said Ordinance of Parliament in the Lords House being no Act though Acts and Ordinances of Parl. are both the same in substance vigor as I have elsewhere proved at large against his New false Doctrine to the contrary Wherefore this Ordinance is still obligatory to practising Lawyers whiles they practise as well as to Sherifs whiles they are Sherifs unlesse they give over their practice sitting the Parl. to attend the service of the House which their practice makes them to neglect Clause 8 E. 2. m. 31. The chief Justice and other Officers of Ireland and R. de Burgo Earl of Vlton are sent for by Writ to come to the Parliament of England ad tractanduâ— cum Praelatis et Proceribus de regno nostro praedicto Claus 50 E. 3. part â— m. 23. Pro Hibernis de Hibernia venientibus ad Parliamentum Angilae there is a Writ directed to the Justices and Chancellor of Ireland Quod de Communitate Comitatuum Burgorum terrae praedictae faciatis habere per Breve de magno sigillo nostro hominibus ejusdem terrae nostrae praedictae regnum nostrum Angliae penes Concilium nostrum pro Communitate Comitatuum Burgorum ultimo venientibus videlicet euilibet eorum de Communitate Comitatus pro quo electus fuiâ— sive Civitatis sive Burgi rationabiles expensas suas c. Teste 25 Julii The Parliament ended the 10th of July By which Writ it is apparent That not only the great Officers and some Nobles but likewise knights and Burgesses were sometimes summoned and chosen in Ireland to come to this Parliament of England and had Writs for wages allowed them These varieties of the Kings writs for electing Knights and Burgesses summoning sometimes 4. sometimes 2. sometimes but one Knight out of a County most times 2 Citizens and Burgesses sometimes but one limiting the qualifications of their persons and summoning not only Great Officers and Peers but likewise Knights Citizens and Burgesses out of Ireland and particular persons by name amongst the Commons as in 32 Ed. 3. part 2. m. 32. dorso together with his making of new Burroughs by his Patents and authorizing them to send Burgesses to Parliam when they never sent any before there being now three times as many Burgesses of Parliament as there were in the reigns of King Edward the 1 2 and 3. as appears by the Writs in the Dorse of the Clause Rolls for their expences and wages are clear proofs and evidences that the King and his Council in the Lords House are the sole Judges of the elections of the Knights Citizens Burgesses of the Commons House and that they themselves have no power at all to seclude or eject any persons duly elected and sent thither by the Kings Writs though more or less than usual or from new erected Burroughs And if any City or Burrough which sends Members to the Commons House by the kings Charter or usage forfeit their Charters and Privileges for which the king seiseth them into his hands as in 49 H. 3. he seised Londons and others Liberties and Cambridges since he may deny to send them Writs to elect Citizens or Burgesses till their Franchises be restored and their Charters renewed and deny to grant them this liberty of Election any more if he please proceeding from his meer grace and grant to them at first and so to be restored out of Grace not Justice when forfeited by their default The Statute of 5 R. 2. Parl. 2. c. 4. The King willeth and commandeth it is assented to by the Prelates Lords and Commons That all persons which shall from henceforth receive the Summons of Parliament be he Archbishop Bishop Abbot Peer Duke Earl Baron Baronet knight of the Shire Citizen of the City Burgess of the Burgh or other singular person or Commonalty and come not at the said Summons except he may reasonably and honestly excuse himself to our Soveraign Lord the King he shall be amerced and otherwise punished as of old times hath been used to be done within this Realm Here the Excuse is to be made by the Knights Citizens Burgesses and Commons as well as Lords Spiritual and Temporal to THE KING not Commons House and if they cannot excuse themselves unto him then they are to be amerced as of old time have been used And that was never by the Commons House but
House it self without any report at all of their proceedings to the House authorizing Committees to secure imprison close imprison cashire banish condemn execute many persons sequester confiscate sell dispose their Inheritances Offices Lands Tenements Benefices real and personal estates to deprive them of their callings professions to search and break up their houses by Soldiers and others without any legal sworn Officers day and night to seize their Letters Papers Horses Arms Plate Money yea debts in other mens hands at pleasure to indemnifie and stay their legal actions sutes Judgements at Law and null their executions at their pleasures yea to commit them till they released all sutes actions Judgements and paid costs and damages to those they justly sued and recovered against to adde affliction to affliction and cruelty oppression to injustice These are the bitter fruits of Commons usurped judicature whereof there are thousands of most sad presidents which may hereafter be objected to prove the sole Power of Judicature to reside of right not in the K. or House of Lords but in the Commons House alone and every of their Committees especially for Examinations Plundered Ministers Sequestrations Indempnity Haberdashers and Goldsmiths Halls Privileges sales of Delinquents the Kings Queens Princes Lands and Estates Excise the Army Navy and the like yea in their new created High Courts of Justice who have acted as absolute arbitrary unlimited lawlesse Courts of justice in the highest degree to the subversion destruction of the antient Liberties Freeholds Properties Great Charters and fundamental Laws of the Nation in general and of thousands of the highest lowest degree of English Freemen in particular with as much ground of reason Warrant from the many late Presidents of this Nature as these here objected to prove a soâ—e right of â—udicature in the Commons House in cases of undue elections retorns misdemeanors privileges relating to their Members and their seruants Which strang exorbitant Presidents and Proceedings if they should be made Patterns for future Parliaments and Committees I shall desire all sober minded men to consider of the dangerous consequences of them thus notably expressed by the late King in his Answer concerning the Ordinance for imposing and levying the 20th part of mens estutes 29 November 1642. After this Ordinance and Declaration t is not in any sober mans power to believe himself worth any thing or that there is such a thing as Law Liberty Property left in England under the jurisdiction of these men and the same power that robs them now of the twentieth part of their estates hath by that but made a claim and entituled it self to the other nineteen whne it shall be thought fit to hasten the general ruine Sure if the minds of all men be not stubbornly prepared for servitude they will look on this Ordinance as the greatest prodigie of Arbitrary power and tyranny that any age hath brought forth in any Kingdom other grievances and the greatest have been conceived intollerable rather by the logick and consequence than by the pressure it self this at once sweeps away all that the wisdom and justice of Parliaments have provided for them Is their property in their estates so carefully looked to by their ancestors and so amply established by Us against any possibility of Invasion from the Crown which makes the meanest Subject as much a Lord of his own as the greatest Peer to be valued or considered here is a twentieth part of every mans estate or so much more as four men will please to call the twentieth part taken away at once and yet a power left to take a twentieth still of that which remains and this to be levied by such circumstances of severity as no Act of Parliament ever consented too Is their liberty which distinguishes subjects from slaves and in which this freeborn Nation hath the advantage of all Christendom dear to them they shall not only be imprisoned in such places of this kingdom a latitude of judgement no Court can challenge to it self in any cases but for so long time as the Committee of the House of Commons for Examination shall appoint and Order the House of Commons it self having never assumed or in the least degree pretended to a power of Judicature having no more authority to administer an Oath the only way to discover and find out the truth of facts than to cut off the heads of any our Subjects and this Committee being so far from being a part of the Parliament that it is destructive to the whole by usurping to it self all the power of King Lords and Commons All who know any thing of Parliament know that a Committee of either House ought not by Law to publish their own results neither are their conclusions of any force without the confirmation of the House which hath the same power of controling them as if the matter had never been debated but that any Committee should be so contracted as this of examination a stile no Committee ever bore before this Parliament as to exclude the Members of the House who are equally trusted by their Country from being present at the Counsels is so monstrous to the privileges of Parliament that it is no more in the power of any man to give up that freedom than of himself to order that from that time the place for which he serves shall never more send a Knight or Burgesse to the Parliament and in truth is no lesse than to alter the whole frame of government to pull up Parliaments by the roots and to commit the lives liberties and estates of all the people of England to the arbitrary power of a few unqualified persons who shall dispose thereof according to their discretion without account to any rule or authority whatsoever Are their friends their wives and children the greatest blessings of peace and comforts of life pretious to them would their penury and imprisonments be lesse grievous by those cordials they shall be divorced from them banished and shall no longer remain within the Cities of London and Westminster the Suburbs and the Counties adjacent and how far those adjacent Counties shall extend no man knows The 3 sort of Presidents and Objections are such as Lilburn and Overton insist on to prove That the King and Lords have no power at all to judge or censure Commoners in our Parliament The only Record they insist on is the Lords own Protestation in 4 E. 3. n. 2. 6. in the case of Sir Simon Bareford which because I have already fully answered p. 323 324 325. and cleared by sundry subsequent presidents and there being no one president in any Parliament since to contradict it I shall wholly pretermit and proceed to their objections which are only two The first and principall objections whereon they most insist and rely is the Statute of Magna Charta chap. 29. That no Free-man shall be imprisoned outlawed exiled or any other may destroyed Nor we shall not passe
these 2. deposed Kings these 2. inferences have been made 1. That the Commons have a joynt interest with the Lords in the Judicature and Jugements in Parliament 2. That the Proceedings against our late condemned beheaded King are justifiable and warranted by them I answer that neiâ—her of these 2. Consequences are proved by them For 1. The Commons themselves in this Parliament of 1 H. 4. n. 79. immediately after King Râ—chards deposition confess That the Judicature and Judgements of Parliament belong only to the King and Lords not to the Commons 2ly The Commons neither in nor out of Parliament are may or ought to be the Judges of the meanest Lord or Peer of the Realm who are to be judged tried by their Peers alone as I have abundantly evidenced in the premises Much less then can they be lawful Judges of their Soveraign Lord and King who is a degree above all the Peers of highest dignity In the Parliament An 1260. Prince Edward as I have proved before would be tried only by 2. Kings because all the rest of the Earls and Barons were not his Peers neither could they be his Judges much less then can Peers or Commons be their Kings Judges Peers to ondemn or try him 3ly Our Law-books resolve That the King hath no Peers in his own Realm and Therefore he can neither be legally tried nor judged by the Peers themselves much less by the Commons in Parliament 4ly The Lawes of Hoel Dha King of Wales about the year 940. Lex 20. resolve Rex non poterit secundum legem in lite stare coram Judice suo agendo vel respondendo per dignitatem naturalem yea all the Lords and Commons of England in the Parliament of Lincoln Anno 29. E. 1. in their forecited Letter to the Pope p. 128. resolve That the Kings of England Ex praeeminentia status suae Regiae dignitatis ex consuetudine cunctis temporibus observata neque responderunt neque respondere debebant coram aliquo Iudice Ecclesiastico vel seculari supâ—r juribus suis in regno c. Much less then may or ought they to be put to answer criminally for their lives or Crowns before any Ecclesiastical or Temporal Judge Peers or Commons House or High Court of COMMONS 5ly The Statutes of 16 R. 2. c. 5. and of 25 H. 8. c. 19.21 thus declare resolve and the Archbishop of Canterbury in the Parliament of 16 R. 2. n. 20. protested against the Popes pretended Supremacy That the Crown of England hath been so free at all times that it hath been in subjection to no Realm or Person but immediatly subject to God and to none other in all things touching the Regality of the said Crown And the Statutes of 25 H. 8. c. 19 21 22. 26 H. 8 c. 1.3 27 H. 8. c. 15. 28 H. 8. c. 7.10 31 H. 8. c. 10.15 32 H. 8. c. 22.24 26. 33 H. 8. c. 29. 35 H. 8. c. 1.3.17 19. 37 H. 8. c. 17. 1 E. 6. c. 2. 1 Eliz. c. 1. 8 Eliz. c. 1. 3 Jac. c. 3 4. declare and enact The King to be the only Supreme Head Governor upon Earth both of the Church Realm of Engl. both of which recognize no Super or under God but only the King To affirm then that the Lords or Commons in Parliament may lawfully judge depose the King and deprive him of his Crown Regalities Head Life is to contradict repeal all these Statutes since the inferior Members can no more legally judge the Supreme head of the body politick than the head of the body natural or the Courrs in Westminster hall or Hundred Courts judge the High Court of Parliament and condemn repeal their Acts or Judgements 6ly Though Articles were drawn up against these two Kings pro forma yet neither of them was ever required or judicially summoned to make answer to them or heard or brought to trial before the Lords or Commons Barr or any other Tribunal or Court of Justice Whence the Bishop of Carlisle protested against it as most illegal unjust and trayterous Therefore neither the Lords nor Commons could be properly said their Iudges in this case and their Judgement without hearing or trial of them must needs be most erronious as well as Mortimers and the Earl of Arundels forecited 7ly The Lords and Commons resignation of their Homage to these 2. Kings when deposed shew that even then they esteâ—med them their Superiors Lords Homage being the most honourable and humble service that a franktenant may do to his Lord the tenant being ungirt his head uncovered kneeling down on both his knees before his Lord sitting covered and holding up his hands joyntly together between his Lords and the Kings hands when he doth his homage saying I become your man from this day forward of limb and of earthly worship and unto you shall be true and faithfull and bear faith for the tenements I hold of you And when done to any other Lord it is with a Saving the faith I owe unto our Soveraign Lord the King and his Heirs 8ly The Sentences of Deposition against them were given only by the Legislative power not JUDICIAL by way of Bill consented unto in the Parliament house by the Lords and Commons then sent to these Kings to their prisons and there read unto them by Committees and Proxies representing all the Estates in Parliament Therefore the reading of them to these Kings in their prisons was not properly a judgement neither did it constitute them who read it to them their Judges much less create the Commons Judges of these Kings 9ly All the Lords Spiritual Temporal and Commons concurred joyntly in this Act of resigning their Homage to these Kings to whom they were all joyntly obliged and in whom they had all a common interest Et quod tangit omnes ab omnibus debet approbari Therefore it is no warrant for the proceedings against our late King without the consents and against the Express Votes of the whole House of Lords and of the Majority of the Commons house 10ly The Lords alone without the Commons gave Judgement for the close and perpetual imprisonment of King Richard the 2. therefore they were his sole and proper Judges by way of Sentence his deposition being by the Legislative not Judicial power 11ly These Kings especially the later of them had no sentence of deposition nor proceedings against them til they had through fear or pusillanimity first resigned their Crowns and kingship as unfit to reign or govern any longer which was made the principal ground of their subsequent declaratory depositions by the Lords and Commons when they had reduced themselves into the condition of private men by their resignations These presidents therefore cannot justifie the late proceedings against an actual lawful hereditary King by a small party of the Commons house alone without the House of Peers or the Majority of their fellow-Members who never resigned his
Dantzick or Hamborough in France Spain Denmark or Germany within the Ward of Cheape London a suggestion never made before his time in or by any Law-Book or Record only to rob the Admiralty of its antient unquestionable right and Jurisdiction 3ly That the words of the Statute of 13 R. 2. c. 5. whereon Sir Edward Cook and other Judges ground their Prohibitions to the Admiralty That the Admirals and their deputies shall not meddle from henceforth with any thing done within the Realm of England but only of things done upon the Sea c. are clearly strained and construed by them directly against the words meaning and intent of the Law-makers and Commons Petition whereon it was made For the later clause but ONLY of things done upon the Sea is put in opposition and contradistinction to the precedent words with any thing done within the Realm of England or within the bodies of the Counties as well by land as by water as the Stat. of 15 R. 2. c. 3. 5 Eâ—l c. 5.27 Eliz. c. 11.25 E. 3. c. 2. directly interpret and explain the sense thereof And they strain and apply them to contracts made by Merchants and Mariners not within the Realm of England or bodies of the Counties thereof by land or water but beyond the seas and quite out of the Realm being no part of the Realm or within the body of any County of England or Kings Dominions Than which a greater Solecism and contradiction cannot be imagined against the scope and letter of these Statutes For by this construction they may likewise strain the very Oath of Supremacy That no foreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction power c. Ecclesiastical or Spiritual WITHIN THIS REALM With the Statute of 13 Eliz. ch 2. for the abolishing of the usurped Iurisdiction of the Bishop and See of Rome WITHIN THIS REALM and against raising sâ—dition bringing in Bulls Agnus Dei Crosses Pictures c. WITHIN THIS REALM and other the Dominions thereof to the punishment of all such as shall avetr that any forein Prince Person Prelate State Potentate or the Pope have or ought to have any Jurisdiction power or Authority OUT OF THIS REALM or the Dominions thereof or shall raise any sedition or vent Popes Bulls c. in any forein Kingdom or Country as France Spain Italy Poland Germany out of the Realm as if they had done it within this Realm of England 4ly That by the opinion resolution agreement of the Judges of the Kings Bench 1575. and of all the Judges of England whereof Hutton and Crook were 2. 4 Febr. 1632. Hiâ— 8. Caroli the original whereof I produced subscribed with all their hands If sute he commenced in the Court of Admiralty upon Contracts made and other things personal done beyond the Seas or upon the Sea no Prohibition is to be awarded contrary to Sir Edward Cooks opinion This being the Iudgment of all our Judges in former ages wherein no record or president could be produced of any such Prohibition from Richard the 1. till the later end of Queen Elizabeths or King James his reign The Lords upon my Argument were so fully satisfied in this point of Law that they all unanimously and immediately adjudged and ordered notwithstanding Iustice Bacons and Reeves opinions upon the late presidents to the contrary that the Rule for the Prohibition in the Kings Bench should be vacated and that the Delegates should proceed to Sentence in the cause which they did And so my Client got both Judgement and Execution soon after against these Sureties I might here very fitly inform our Levellers and their Confederates That the Lords in Parliament as they did antiently so since the Commons admission unto this Great Council have made not only some Acts for the Government of London without the Commons as in 17 R. 2. n. 25 26 27. Granted Ayds for themselves to the King and likewise for the Merchants by the Merchants consents confirmed Charters Patents in Parliament reversed attainders restored persons attainted and their heirs to Lands and bloud elected the Kings Great Officers Privy Counsellers and prescribed them Laws Rules Orders appointed a Protector during the Kings Minority limited his power and discharged him from his place without the Commons confirmed an imposition upon Cloth by the King against the Commons petition to take it off Ordered a Subsidy to be paid absolutely which the Commons granted but conditionally called receivers of Subsidies and Monies to account without the Commons and opposed the Commons encroachments upon their privileges as you may see in the Parliament Rolls of 13 E. 3. n. 5 6. Parl. 1. Parl. 2. n. 8.15 E. 3. n. 41.21 E. 3. n. 16. Par. 2 R. 2. n. 22. to 27.57 5 R. 2. n. 16. 5 H. 4. n. 51. to 58. 4 H. 6. n. 22. 6 H. 6. n. 22 23. 8 H. 6. n. 13.27 28.14 H. 6. n. 10. 31 H. 6. n. 34. In Claus 50 E. 3. m. 3. 4. De essendo in Parliamento there are writs directed to particular persons in this form Sis coram Nobis et cateris Proceribus et Magnatibus regni nostri Angliae in praesenti Parliamento without mentioning the Commons apud Westm convocato hac instante diâ— Sabbatâ— proxime post futur ad informandum Nosipsos Proceres et Magnates not the Commons super quibusdam de quibus per te volumus informari c. 4. Junii Per Concilium in Parliamento And for the Nobles of Ireland I find this Record Claus 2 E. 3. m. 17. Rex dilecto et fideli suo Johanni Darcy de Nevien Justiciario suo Hyberniae salutem Ex parte quorundam hominum de Hybernia Nobis exstitit supplicatum uâ— per statutum inde faciendum concedere volumus Quod omnes Hybernici qui voluerint legibus utantur Anglicanis ita quod necesse non habeant super hoc Cartas aliquas a Nobis imperrare Nos igitur certiorari volentes si sine aliquo praejudicio praemissis annuere valeamus vobis mandamus quod voluntatem Magnatum terrae illius not of the Commons in proximo Parliamento nostro ibidem tenendo super hoc cum diligentia praesentari facias de eo quod inde inveneritis una cum vestro consilio advisamento Nos distincte aperte cum celeritate qua potestis certificetis hoc Breve nostruÌ„ Nobis remittentes c. upon which Petition the use of the English Laws was afterwards granted as appears by Clause 5 E. 3. part 1. m. 25. But I shall close up this Plea and Supplement with a few Presidents more pertinent to demonstrate the Lords undoubted Right of Judicature Council and Advice in publike affairs both in and out of Parliament In the Parliaments of 5 E. 2. n. 31.4 E. 3. c. 14.36 E. 3. c. 10.50 E. 3. n. 181.1 R. 2. n. 35.2 R. 2. n. 5. It was enacted that a Parliament