ne conseiller ceque serroit affaire en tiel cas Et sur ce prierent a nostre Seigneur le Roi quils poierent ent aver avisement tanque au prochein Parlement la quelle priere le Roi ottroia sur ce prierent outre que nostre Seigneur le Roi feist au dit Esmon sa bone grace a quoi il respond quil lui voloit faire mes cella grace vendroit de lui mesmes Sir Thomas de Berkeley who Sir William Dugdale in his Book of the Baronage of England found and believes to have been a Baron being called to account by the King for the murder of his Father King Edward the Second to whose custody at his Castle of Barkeley he was committed not claiming his Peerage but pleading that he was at the same time sick almost to death at Bradely some miles distant and had committed the custody and care of the King unto Thomas de Gourney William de Ocle ad eum salvo custodiendi and was not guilty of the murder of the King or any ways assenting thereunto Et de illo posuit se super Patriam had a Jury of twelve Knights sworn and impannelled in Parliament who acquitted him thereof but finding that he had committed the custody of the King to the aforesaid Thomas de Gournay William de Ocle and that the King extitit murderatus a further day was given to the said Sir Thomas de Berkeley de audiendo Judicio suo in prox Parliamento and he was in the interim committed to the custody of Ralph de Nevil Steward of the Kings Houshold At which next Parliament Prierent les Prelatz Countes Barons a nostre Seigneur le Roi on the behalf of the said Sir Thomas de Berkeley that he would free him of his Bayl or Mainprize whereupon the King charging the said Prelats Counts and Barons to give him their advice therein Le quel priere fust ottroia puis granta nostre Seigneur le Roi de rechef a leur requeste que le dit Mons'r Thomas ses Mainpernors fusseient delivres discharges de lure mainprise si estoit Jour donne a dit Thomas de estre en prochein Parlement which proved to be a clear Dismission for no more afterwards appeareth of that matter Neither after a fierce Impeachment in the said Parliament of 21 R. 2. against Thomas Arundel Archbishop of Canterbury and Chancellor of England of High Treason upon which he was by that injuried Prince condemned and banished when as the Record saith Les dits Countz prierent au Roi ordenir tiel Jugement vers le dit Ercevesque come le cas demande le Roi sur ceo Recorda en le dit Parlement que le dit Ercevesque avoit este devant lui en presence de certeines Seigneurs confessor que en la use de la dite Commission il sey mesprise lui mist en la grace du Roi surquoi the Judgment was given against the said Archbishop that he should be banished and forfeit all his Lands Goods and Estate when in the first year of the Reign of the usurping King H. 4. that Archbishop not tarrying long in Exile the minds of the Commons became so setled on the prevailing side there was so small or no opposition made by them against him as the Duke of York and Earl of Northumberland and others of the Blood of the said Archbishop of Canterbury did in Parliament pray the King that the said Archbishop might have his recovery against Roger Walden for sundry Wasts and Spoils done by him in the Lands of the said Archbishoprick which the King granted and thanked them for their motion The Bishop of Exeter Chancellor of England at the assembling of the Parliament taking his Text out of the Prophecy of Ezekiel Rexerit unus omnibus alledging the power that ought to be in Soveraign Kings and Princes whereby to govern and the Obedience in Subjects to obey and that all alienations of his Kingly Priviledges and Prerogatives were reassumable and to be Repealed by his Coronation-Oath Pour quoi le Roi ad fut assembler le Estatz de Parlement a cest faire pour estre enformer si ascun droitz de sa Corone soient sustretz ou amemuser a fin que par leur bon advis discretion tiel remedie puisse estre mis que le Roi puisse esteer en sa libertie ou poir Comme ses Progenitors ont este devant lui duissent de droit non obstante ascun ordinance au contraire ainsi le Roi as Tener Et les governera whereupon the Commons made their Protestation and prayed the King that it might be Inrolled that it was not their intente ou volunte to Impeach or Accuse any Person in that Parliament sans congie du Roi And thereupon the Chancellor by the Kings command likewise declared That Nostre Seigneur le Roi considerant coment plusieurs hautes offenses mesfaits on t estre faitz par le People de son Roialme en contre leur ligeance l' Estat nostre Seigneur le Roi la loie de la terre devant ces heures dont son People estiet en grant perill danger de leie leur corps biens voullant sur ce de sa royalle benignite monstre faire grace a son dit People a fyn quilz ayent le greindre corage volonte de bien faire de leure mieux porter devots le Roi en temps avenir si voet grante de faire ease quiete salvation de son dit People une generalle Pardon a ces liges forspries certaines pointz limitez par le samant la suite al partie forspris cyn quont persones queux plaira au Roi nomer tour ceux qui serront Empecher en ce present Parlement dit austre que le dit Roi voet que plein droit Justice soyent faitz a Chascun de ses liges qui en violent complandre en cest Parlement ad ordiner assigner Receivers Triers des Petitions en cest Parlement And did in pursuance thereof in full Parliament excuse the Duke of York the Bishop of Worcester Sir Richard le Scroop then living William late Archbishop of Canterbury Alexander late Archbishop of York Thomas late Bishop of Exeter and Michael late Abbot of Walton then being dead of the Execution and intent of the Commission made in the Tenth year of his Reign as being assured of their Loyalty and therefore by Parliament restored them to their good Name And it is more than a little probable that the Prelates Counts and Barons in that Honourable House of Peers in Parliament did well understand that the King was a fit and the only person to Petition unto for that Pardon Discharge or Dismission amounting to a Pardon and did not think it to be either legal or rational
pardoning where they were to gain so much by Attainders Fines and Forfeitures And therefore panick vain Fears such as in constantem virum cadere non possunt should not be permitted to affright our better to be imployed Imaginations unless we had a mind to be as wise as a small and pleasant Courtier of King Henry the Eighths who would never endure to pass in a Boat under London-Bridge lest it should fall upon his Head because it might once happen to do so Our Magna Charta's and all our Laws which ordain no man to be condemned or punished without Tryal by his Peers do allow it where it is by Confession Outlawry c. and no Verdict Did never think it fit that Publick Dangers such as Treason should tarry where Justice may as well be done otherwise without any precise Formalities to be used therein For although it may be best done by the advice of the Kings greatest Council the Parliament there is no Law or reasonable Custom of England either by Act of Parliament or without that restrains the King to do it only in the time of Parliament When the Returns Law-Days and Terms appointed and fixt have ever given place to our Kings Commissions of Oyer and Terminer Inquiries c. upon special and emergent occasions And notwithstanding it will be always adviseable that Kings should be assisted by their greatest Council when it may be had yet there is no Law or Act of Parliament extant or any right reason or consideration to bind Him from making use of His ordinary Council in a Case of great and importunate necessity for the Tryal of Peers by their Peers before a Lord High Steward attended by the Kings learned Judges of the Law For Cases of Treason Felony and Trespass being excepted out of Parliament first and last granted and indulged Priviledges by our and their Kings and Princes there can be no solid Reason or cogent Argument to perswade any man that the King cannot for the preservation of Himself and His People in the absence or interval of Parliaments punish and try Offenders in Cases of Treason without which there can be no Justice Protection or Government if the Power of the King and Supreme Magistrate shall be tyed up by such or the like as may happen Obstructions So until the Honourable House of Commons can produce some or any Law Agreement Pact Concession Liberty or Priviledge to Sit and Counsel the King whether he will or no as long as any of their Petitions remain unanswered which they never yet could or can those grand Impostures and Figments of the Modus tenendi Parliamenta and the supposed Mirror of Justice being as they ought to be rejected when the Parliament Records will witness that many Petitions have for want of time most of the ancient Parliaments not expending much of it been adjourned to be determined in other Courts as in the Case of Staunton in 14 E. 3. and days have been limited to the Commons for the exhibiting of their Petitions the Petitions of the Corbers depended all the Reigns of King Edward the First and Second until the eleventh year of Edward the Third which was about sixty six years and divers Petitions not dispatched have in the Reign of King Richard the Second been by the King referred to the Chancellor and sometimes with a direction to call to his assistance the Justices and the Kings Serjeants at Law and the Commons themselves have at other times prayed to have their Petitions determined by the Councel of the King or by the Lord Chancellor And there will be reason to believe that in Cases of urgent necessity for publick safety the King is ought to be at liberty to try punish great and dangerous Offenders without His Great Council of Parliament The Petitions in Parliament touching the pardoning of Richard Lyons John Peachie Alice Peirce c. and a long process of William Montacute Earl of Salisbury were renewed and repeated again in the Parliament of the first of Richard the Second because the Parliament was ended before they could be answered Anno 1. of King Richard the Second John Lord of Gomenez formerly committed to the Tower for delivering up of the Town of Ardes in that Kings time of which he took upon him the safe keeping in the time of King Edward the Third and his excuse being disproved the Lords gave Judgment that he should dye but in regard he was a Gentleman and a Baronet and had otherwise well served should be beheaded and Judgment respited until the King should be thereof fully informed and was thereupon returned again to the Tower King Henry the Second did not tarry for the assembling a Parliament to try Henry de Essex his Standard-bearer whom he disherited for throwing it down and affrighting his Host or disheartning it 16 E. 2. Henry de bello monte a Baron refusing to come to Parliament upon Summons was by the King Lords and Council and the Judges and Barons of the Exchequer then assisting committed for his contempt to Prison Anno 3 E. 3. the Bishop of Winchester was indicted in the Kings-Bench for departing from the Parliament at Salisbury Neither did Henry the Eight forbear the beheading of His great Vicar-General Cromwell upon none or a very small evidenced Treason until a Parliament should be Assembled The Duke of Somerset was Indicted of Treason and Felony the second of December Anno 3 4 Edwardi 6. sitting the Parliament which began the fourth day of November in the third year of His Reign and ended the first day of February in the fourth was acquitted by his Peers for Treason but found guilty of Felony for which neglecting to demand his Clergy he was put to Death In the Reign of King Philip and Queen Mary thirty nine of the House of Commons in Parliament whereof the famous Lawyer Edmond Plowden was one were Indicted in the Court of Kings-Bench for being absent without License from the Parliament Queen Elizabeth Charged and Tryed for Treason and Executed Mary Queen of Scots her Feudatory without the Advice of Parliament and did the like with Robert Earl of Essex her special Favourite for in such Cases of publick and general Dangers the shortest delays have not seldom proved to be fatally mischievous And howsoever it was in the Case of Stratford Archbishop of Canterbury in the fifteenth year of the Reign of King Edward the Third declared that the Peers de la terre ne doivent estre arestez ne mesnez en Jugement Si non en Parlement par leur Pairres yet when there is no Parliament though by the Common-Law their Persons may not then also be Arrested at a common persons Suit they may by other ways be brought to Judgment in any other Court And Charges put in by the Commons in the House of Peers against any of the Peers have been dissolved with it For Sir Edward Coke hath declared it to be according to
the Law and reasonable Customs of England followed by the modern practice that the giving any Judgment in Parliament doth not make is a Session and that such Bills as passed in either or both Houses and had no Royal Assent unto them must at the next Assembly begin again for every Session of Parliament is in Law where any Bill hath gained the Royal Assent or any Record upon a Writ of Error brought in the House of Peers hath been certified is and hath been accompted to have been a Session And although some of this later quarrelling Age have Espoused an Opinion too much insisted upon that an Impeachment brought by the House of Commons against any one makes the supposed Offence until it be Tryed unpardonable A Reason whereof is undertaken to be given because that in all Ages it hath been an undoubted Right of the Commons to Impeach before the Lords any Subject for Treason or any Crime whatsoever And the Reason of that Reason is supposed to be because great Offences complained of in Parliament are most effectually determined in Parliament Wherein they that are of that Opinion may be intreated to take into their more serious consideration That there neither is nor ever was any House or Members of Commons in Parliament before the Imprisonment of King H. 3. by a Rebellious part of his Subjects in the Forty ninth year of his Reign or any kind of fair or just evidence for it Factious designing and fond conjectures being not amongst good Patriots or the Sons of Wisdom ever accompted to be a sufficient or any evidence Nor was the House of Lords from its first and more ancient original intituled under their King to a Judicative Power to their Kings in common or ordinary Affairs but in arduis and not in all things of that nature but in quibusdam as the King should propose and desire their advice concerning the Kingdom and Church in matters of Treason or publick concernments and did understand themselves and that high and honourable Court to be so much forbid by Law ancient usage and custom to intermeddle with petty or small Crimes or Matters as our Kings have ever since the sixth year of the Reign of King Edward the first ordained some part of the Honourable House of Peers to be Receivers and Tryers of Petitions of the Members of the House of Commons themselves and others directed to the King to admit what they found could have no remedy in the ordinary Courts of Justice and reject such as were properly elsewhere to be determined with an Indorsement of non est Petitio Parliamenti Which may well be believed to have taken much of its reason and ground from a Law made by King Canutus who began his Reign about the year of our Lord 1016. Nemo de injuriis alterius Regi queratur nisi quidem in Centuria Justitiam consequi impetrare non poterit For certainly if it should be otherwise the reason and foundation of that highest Court would not be as it hath been hitherto always understood to be with a Cognisance only de quibusdam arduis matters of a very high nature concerning the King and the Church But it must have silenced all other Courts and Jurisdictions and have been a continual Parliament a Goal-delivery or an intermedler in Matters as low as Court Leets or Baron and County Courts and a Pye-Powder Court And the words of any Crime whatsoever do not properly signifie great Offences and that all great Offences do concern the Parliament is without a Key to unlock the Secret not at all intelligible when it was never instituted or made to be a Court for common or ordinary Criminals For the House of Commons were never wont to take more upon them than to be Petitioners and Assenters unto such things as the King by the advice of His Lords Spiritual and Temporal should ordain and obey and endeavour to perform them And an Impeachment of the House of Commons cannot be said to be in the Name or on the behalf of all the People of England for that they never did or can represent the one half of them and if they will be pleased to examine the Writs and Commissions granted by our Kings for their Election and the purpose of the Peoples Election of them to be their Representatives Substitutes or Procurators it will not extend to accuse Criminals for that appertained to the King himself and His Laws care of Justice and the Publick the Common People had their Inferiour Courts and Grand Juries Assises and Goal-Deliveries to dispatch such Affairs without immediately troubling Him or His Parliament and the tenour and purpose of their Commissions and Elections to Parliament is no more than ad faciendum consentiendum iis to obey and perform such things as the King by the advice of His Lords Spiritual and Temporal should in Parliament ordain For although where the Wife or Children of a Man murdered shall bring an Appeal the King is debarred from giving a Pardon because by our Saxon Laws derived from the Laws of God they are not to be disturbed in that satisfaction which they ought to have by the loss or death of the Man murdered Yet the publick Justice will not be satisfied without the party offending be Arraigned and brought to Judgment for it if the party that hath right to Appeal should surcease or be bought off so as an Appeal may be brought after or before the King hath Indicted and an auter foitz acquit in the one case will not prejudice in the other and where the Matter of Fact comes to be afterwards fully proved and the Appeal of a Wife or Children of a Bastard called filius populi quia nullius filius where only the King is Heir cannot vacate or supersede an Indictment of the Kings Neither is an Appeal upon a Crime or in criminal Matters in the first instance to be at all pursued in Parliament by the Statute made in the First year of the Reign of King H. 4. the words whereof are Item for many great inconveniencies and mischiefs that often have happened by many Appeals made within the Realm of England to the great afflictions and calamities of the Nation as it afterwards happened by the Lancastrian Plots and Designs in that mischievous Appeal in Anno 11 of King Richard the Second before this time It is ordained and stablished from henceforth That all the Appeals to be made of things done out of the Realm shall be tryed and determined before the Constable and Marshal of England for the time being And moreover it is accorded and assented That no Appeals be from henceforth made or in any wise pursued in Parliament in any time to come And therefore that allegation that the House of Peers cannot reject the Impeachment of the Commons because that Suit or Complaint of the Commons can be determined no where else will want a better foundation an Impeachment of the House of