which they never yet read nor understood there remaines nothing but to answer some Presidents and Objections The Principall president insisted on by Lilburne Object 1. is the Protestation of the Lords in the case of * Cooke 2. Instit p. 50. Sir Simon Beresford 4. E. 3. nu 6. which I have already fully answered retorted and shall therefore here pretermit The second is Sir Edward Cookes Authority Object 2. and the presidents cited by him in his 4. Institutes p. 23. 24. of Judicature in Parliament where thus he writes It is to be knowne THAT THE LORDS IN THEIR HOUSE HAVE POWER OF JUDICATURE And the Commons in their House have power of Judicature and both Houses together have power of Judicature But the handling thereof according to the weight and worth of the matter would require a whole Treatise of it selfe and to say the truth it is best understood by reading the Judgements and Records of Parliament at large and the Journalls of the House of the Lords and the Booke of the Clerke of the House of Commons which is a Record as it is affirmed by Act of Parliament in An. 6. H. 8. c. 16. To which he addes these marginall Notes Vide Placita in Parlians Anno 33. E. 1. rot 33. Nicholas Seagrave adjudgâ— Par Praelatos COMITES BARONES ET ALIOS DE CONCILIO At the Parliament at Yorke Ap. 12. E. 3. Consideratum est per Praelatos Comites BARONES ET COMMVNITATEM ANGLIAE the Lord Audleys care At the Parliament at Westm 15. E. 2 Hugh le pier adjuge per les SEIGNIEURS COMMONS Rot. Parl. 50. E. 3. n. 34. Lord Nevils case Then he aâ—des See Rot. Claus 1 R. 2. n. 5. 8. 38. â—0 A tresage Councell le Roy Les SEIGNIORS COMMONS c. Rot. Parl. 2. H. 5. nu 1â— Errâ—ra sinned THAT THE LORDS gave Judgement WITâ—OVT PETITION OR ASâ—â—NT OF THE COMMONS Rot. Parl. 28. H. 6. nu 10. and many others in the Reigne of King H. 6. and Kin E. 4. And of later times see divers notable Judgements at the prosecution of the Commons By THE LORDS at the Parliaments â—â—â—den 18. and 21. Iac. Regis against Sir Giles Mompesson Sir Iohn Michell Viscount St. Albon Lord Chancellor of England the Earle of Middlesex Lord Treasurer of England whereby the due proceedings of Iudicature in such Caces doth appeare Then hee cites the cases of * 8. Eliz. Thomas Long * 23 Eliz. Arthur Hall * 2. Aâ—â—â—l 1. Maâ—â—â— and Muncton censured by the House of Commons only and by them fined and imprisoned without the Lords Aâ—d concludes thus If any Lord of Parliament spirituall or temporall have committed any Oppression Bribery extortion or the like the HOUSE OF COMMONS BEING THE GENERALL INQUISITORS OF THE REALME comming out of all parts thereof may examine the same and if they find by the Vote of the House the charge to be true then they TRANSMIT THE SAME TO THE LORDS WITH THE WITNESSES and PROOFES From which passages of his some ignorantly have concluded That the Lords have no power of Judicature without but only joyntly with the Commons That all Commoners ought to be judged only by the Commons not by the Lords and That the Commons have a sole power of Judicature in cases of Commoners and the Lords no power but joyntly with them or upon their preceding Petitions and impeachments neither in case of Commoners nor Peers I answer that Sir Edward Cookes words are much mistaken and rightly understood warrant no such inferences but the contrary For first he clearely confesseth in direct termes That the Lords in their House have a power of judicature even without the Commons ha he deâ—med particularly in whose and in what cases out of the Judgements Records and Journals of Parliament at large to which he refers the Reader a being best understood by reading them which warrant the Lords judging fining imprisoning and condemning to death not only of Peers but of Commoners themselves without the Commons as I have fully manifested their could no such inference have been made Secondly â—e addeâ— That the Commons in their House have a power of Judicature From whence Lilburne and others inferre That they are and ought to be the sole Judges of all Commoners and not the Lords in all cases triable in Parliament But this is a most grosse mistake Sir Edward Cooke confining this Judicature of theirs only to these three câ—ses First to matters and abuse concerning elections of Knights Citizens and Burgesses being Members of the Commons House the judgment and determination whereof the Commons alone of late times only have usually taken upon them without the Lords which he proves by Thomas Longs case 8. Eliz. and no greater antiquities of which elections the King and Lords in former times have been sole Judges for which I shall cite some memorable records worthy the Lords and â—â—mmons consideration who now take upon them to suspend ejeâ—â— Judge their own Members elections without the Kings or Lords concurrence or privity a practice not heard of in former ages and of late originall In the Parliament holden at Westminster 5. H. 4. Rot. Parl. num 38. Thomas Thorpe his case Item because that the writ of summons of Parliament returned by the Sheriffe of Roteland was not sufficiently nor duely returned as the Commons conceived the said Commons prayed our Lord THE KING and THE LORDS IN PARLIAMENT that this matter might be duly examined in Parliament and that in case their shall be default found in this matter that such a punishment might be inflicted which might become exemplary to others to offend againe in the like manner Whereupon our said Lord the King IN FULL PARLIAMENT commanded THE LORDS IN PARLIAMENT TO EXAMINE THE SAID MATTER and to doe therein AS TO THEM SHOULD SEEME BEST IN THEIR DISCRETIONS And thereupon the SAID LORDS caused to come BEFORE THEM IN PARLIAMENT as well the said Sheriffe as William One by who was returned by the said Sheriffe for one of the Knights of the said County and Thomas Thorpe who was elected in full Countie to be one of the Knights of the said Shire for the said Parliament and not returned by the said Sheriffe And the said parties being duely examined and their reasons well considered in the said Parliament IT WAS AGREED BY THE SAID LORDS that because the said Sheriffe had not made a sufficient returne of the said writ THAT HE SHALL AMEND THE SAID RETURN and THAT HE SHALL RETURN THE SAID THOMAS FOR ONE OF THE SAID KNIGHTS as he was elected in the said Countie for the Parliament and moreover that the said Sheriffe for this default SHALL BE DISCHARGED OF HIS OFFICE and COMMITTED PRISONER TO THE FLEET and that he should MAKE FINE and RANSOME AT THE KINGS PLEASURE Loe here the Lords in Parliament at the Commons request and by the Kings command examining and giving judgement in case of undue election even without the
Lords who are Freemen of the higest degree may not give judgement against Commoners who are Freemen very learned nonsence we all know that the Lord Chancellour of England Lord Keeper Lord Treasurer Master of the Court of Wards and some of the Iudges of the Kings Courts in Westminster Hall in former times with the Chiefe Iusticâ—ar and Iustices in Eyre were anciently and of late too as the Earle of Holland and others Peeres of the Realme not Commoners and that all the Peeres of the Realme are in Commissions of Oyer and Terminer and of the Peace yet did wee never heare of any Commoner demurring or pleading thus to any of their Jurisdictions in Chancery Kings Beâ—ch the Exchequer Chamber Eyres Assises or Sessions Sir I am a Commoner and you are a Peer of the Realme but no Commoner as I am besides you sit here onely in the Kings right doing all in his name and representing his person who is not any Peer but Soveraigne Therefore you ought not to judge my cause not condemne my person nor give any sentence for or against mee it being contrary to Magna Charta which enacts That no freeman should be judged or pressed upon or condemned but by the lawfull judgement of his Peers Certainly no person was ever yet so mad or sottish to make such a Plea before Ignoramus Lilburne And if Lords and Peers may judge the persons and causes of Commoners in the Cancery Kings Bench Exchequer Court of Wards Eyre and at Assises and Sâ—ssions without any violation of this clause in Magna Charta much more may the House of Peers in Parliament doe it who are certainly Peers to Commoners though Commoners be not Peers to them within the meaning of Magna Charta ch 29. Forthly If the Lords in Parliament cannot meddle with or give judgement in Commoners cause without breach of this clause in Magna Charta then why did b See his Innocency and truth justified Lilburne himselfe sue and petition to the Lords as the onely competent Iudges to reverse his sentence in Star-Chamber and give him dammages because it was against this very Chapter of Magna Charta If Lords cannot give judgement in the case of Commoners as now he holds without expresse violation of this Law then hâ—mselfe in petitioning the Lords to relieve him against the Starre Chamber Sentence because contrary to this very Law and Chapter of Magna Charta was as great a violation of it as his Starr-Chamber censure and his sentence in Starre-Chamber remaines still unreversed because the Lords examining and reversing of it they being no Commoners as hee is but Peers was Coram non judice and meerly void by the Statute of 25. E. 3. Stâ—t 5. â— 4. because contrary to Magna Charta it selfe as hee now expounds it Let him therefore unriddle and assoyle thiâ— his owne Dilemma or for ever hold his tongue and pen from publishing such absurdities to seduce poore people as he hath donâ— and exaâ—perate them to clamour against the Lords for being more favourable in their censure of him then his transcendent Libels and contempts against them deserved Fifthly This Statute is in the dis-junctive by the Lawfull of his Peers OR BY THE LAW OF THE LAND which this Ignoramus observes not 〈…〉 Now by theâ— Law of the Land every Inferiour Court of justice may fine and imprison men for contempts and misdemeanors against them and their authority therefore the Lords in Parliament being the highest and supreamed Tribunall may much more doe it and have ever done it even by this exprâ—â—â—e clause of Magna Charta the Law and Custome of Parliament as well as they may give c 〈…〉 judgements in writs of Errour againster for Commons without the Commons consent as himselfe â—oth grant Fifthly It is granted by Lilburne that by this expresse Law â—o fâ—eeman of England ought to be judged or censured but onely by his Peers and that Commoners are no Peers to Noblâ—men nor Noblemen Peerâ— to Commoners Then by what Law of reason dared he to publish to the world d 〈…〉 That the House of Commons are the Suâ—reme Power within this Realme and THAT BY RIGHT THEY ARE THE LORDS JVDGES certainly this is a Note beyond Ela a direct contradiction to Magna Charta in this very clause wherein hee placeth his strength and subverts his very ground work against the Lords jurisdiction in their censure of him For if the House of Commons be by right the Lords â—udges then by Magna Charta c. 29. they are and ought to bee their Peers and if the Commons bee the Lords Peers then the Lords must bee the Commons Peers too and if so then they may lawfully be his judges even by Magna Charta because here he grants them to bee no other then his Peers Loe the head of this great Goliah of the Philistin Levellers cut off with his owne sword and Magna Charta for ever vindicated from his ignorant and â—â—ttish contradictory Glosses on it and to convict him of his Errour in affirming the House of Commons to bee by right the Lords judges I might informe him that Magna Charta it selfe â— 1. 20 and Sir Edward Cooke his chiefe Authour in his commentary on them are expresse against him that in the Parliament of 15. c. 3. ch 2. in print it was enacted That whereas before this time the Peers of the Land have been arrested and imprisoned and their Temporalities Lands and Tenements Goods and 〈◊〉 seised in the Kings hards and some put to death WITHOVT IVDGEMENT OF THEIR PEERS that NO PEER OF THE LAND Officer or other by reason of his office nor of things touching his office nor by other cause shall be brought in judgement to lose his Temporalities Lands Tenements Goods Chattels nor to bee arrested or imprisoned outlawed exiled nor forejudged nor put to answer NOR TO BE IVDGED BVT BY AWARD OF THE SAID PEERS IN PARLIAMENT which Priviledge of theirs was both enjoyed and claimed in Parliament 4. E. 3. n. 14. 15. E. 3. n. 6. 8. 44. 49. 51. 17. E. 3. n. 22. 28. F. 3. n. 7. â—0 16. 10 R. 2. n. 7. 8. c. and sundry other Parliament Rolls e See Cook 4. Instit p. 15. â—7 E. 3. 19. And in 11. R. 2. n. 7. All the Lords in this Parliament as well Spirituall as Temporall claimed this their liberty and franchise that all weighty matters in the same Parliament to be after moved TOVCHING THE PEERS OF THE LAND ought to bee determined and judged and discussed BY THE COVRSE OF THE PARLIAMENT and not by the Civill Law nor BY THE COMMON LAWES used in other inferiour Courts of the Relame The which claime and liberty the King most willingly allowed and granted thereto IN FVLL PARLIAMENT And hereupon in the Parliament of 14. R. 2. n. 13. The King and LORDS without the Commons ADIVDGED the Earledome and Seigniory of Richmond to bee forfeited by reason that Iohn Duke of Brâ—â—tany then
Committees and proceedings contrary to the rules of Law and Iustice to right all grieved Petitioners especially such who have waited at least seven yeares space at your doores for reparations relieve poore starved Ireland and raise up the almost lost honor power freedome and reputation of Parliaments by acting Honorably and heroically like your selves without any feare favour hatred or selfe-ends and confining your selves the Commons House to the ancient bounds and rules of Parliamentary Iurisdiction and proceedings and to excell all others as farre in Iustice Goodnesse and publike resolutions as you do in Greatnesse and Authority Which that you may effectually performe shall be the the prayer of Your Lordships in all humble Service W. PRYNNE A PLEA For the LORDS OR A short yet full and necessary Vindication of the Judiciary and Legislative Power of the House of Peeres and the Hereditary just Right of the Lords and Barons of this Realme to sit vote and judge in the high Court of Parliament THe treasonable and destructive designe of divers dangerous Anabaptists Levellers Agitators in the Army City Countrey and of Lilburne Overton their Champions and Ring-leaders in this Seditious Plot to dethrone the King unlord the Lords new-modell the House of Commons extirpate Monarchy suppresse the House of Peers and subvert Parliaments the onely obstacles to their pretended Polarchy and Anarchy are now so legible in their many late printed Petitions Libells Pamphlets and visible in their actings and publike proceedings that it rather requires our diligence and expedition to prevent then hesitancy to doubt or dispute them they positively protesting against and denying both King and Monarchy in their a A Remonstrance of many thousand aâ—zens to their own House of Commons p. 6. the just mans Justification p. 10. Regall Tyranny Discovered A Declaration from his Excellency and the Generall Counsell of the Army Ian. 11. 1647. p. 7. Speeches c. at a Conference newly published by Walker printed verbatim out of Dolman the Iesuit his Booke condemned Pamphlets and Remonstrances with the Power and Judicature of the House of Peers and their undoubted just Hereditary right to Vote act or sit in Parliament because they are not elected by the people as Knights and Burgesses are asserting b Lilburnes Iust Man in Bonds p. 1 2. A Pearl in a Dunghill The Free-mans Freedome Vindicated An Anatomy of the Lords Tyranny his Argument and Plea before the Committee against the Lords Authority his Petition to the Commons his Letters to Henry Martin Overtons Arrow of Defiance shot into the Prerogative Bowells of the House of Lords his Petition and Appeale A Defiance against Arbitrary Vsurpation The Agreement of the People and Petitions wherein it was presented to the House of Commons An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 192. to 204. That they are no naturall issues of our Lawes but the Exorbitances and Mushromes of Prerogative the Wenns of just Government the Sons of Conquest and usurpation not of choice and election intruded upon us by power not made by the people from whom ALL POWER PLACE and OFFICE that is just in this Kingdome OUGHT TO ARISE meere arbitrary Tyrants Vsurpers an illegitimate and illegall power and Judicatory who act and Vote in our affaires but as INTRUDERS who ought of right not to judge censure or imprison any Commoner of England even for libelling against them refusing to appeare before them reviling and contemning them and their Authòrity to their faces at their very Barre as Lilburne Overton bost and print they did or breaking any of their undoubted Priviledges And to accomplish this their designe the better they endeavour by their most impudent flattery to ingage the House of Commons against the House of Peers the better to pull them downe stiling and proclaming them in their c Overtons Petition and Appeal to the High and mighty States the Knights and Burgesses in Parliament assembled Englands legall Soveraigne Power The Râ—monstrance of many thousands to their own House of Commons A printed Petition now in agitation of many Freeborne people to the only Supreme Power of this Realme the Commons in Parliament assembled The Anatomy of the Lords Tyranny An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 154. to 204. Petitions and Pamphlets The ONLY Supreme legall Judicatory of the Land who ought BY RIGHT to judge the Lords and their proceedings from whom they appeale for right and reparations against the House of Peeres affirming That in the Commons House alone resides the formall and legall Supreme Power of England who ONELY are chosen by the people and THEREFORE IN THEM ONELY is the power of binding the whole Nation by making altering or abolishing Lawes without the Kings or Lords concurrent assents to whom they now absolutely deny any Negative voice making the Commons a compleat Independent Parliament of themselves and therefore present all their Petitions and addresses to them alone without any acknowledgement or notice of the House of Peers to whom they deny any right or title to sit or vote in Parliament unlesse they will first divest themselves of their Peerage and Barons right of Session and submit to stand for the next Knights and Burgesses place in the House of Commons that shall fall void where if they may have any voice or influence the meanest Cobler Tinker Weaver or Water-man shall be elected a Knight or Burgesse sooner then the best and greatest Peer and John of Leyden preferred before King or Prince Charles Sic Sceptra ligonibus aequanti which Petitions and Pamphlets of theirs have so puffed and bladdered up many Novices and raw Parliament-men in the Commons House unacquainted with the bounds proceedings and originall Constitution of Parliaments and the Lawes and Customes of England that they begin to act vote and dispose of the Army Navy c. without and against the Lords not expecting their concurrence contrary to all former proceedings of Parliament the Lords just Priviledges and their own Solemne League and Covenant to maintaine them which may prove destructive to both Houses the Parliament Kingdome and oppressive to their Representatives the people who generally dislike it if not timely redressed and breeds such a deadly feud between the Houses as may ruine them both and the Kingdome to boot The end of these Anabaptists Levellers and Lilburnians being only to * See M. Edwards Gangraena part 3. where this is fully demonstrated destroy the Parliament by setting both Houses at variance they inveighing as bitterly against the power proceedings Ordinances Votes Power Members undue Elections and unequall Constitutions of the House of Commons as the Lords and therefore have so earnestly pressed in their d Lilburnes Letter to a friend Innocency and Truth justified and his late Letters to Cromwell Martin Sir Thomas Fairfax and others Englands Birthright Englands lamentable Slavery Another word to the wise Comparata Comparandis Liberty against Slavery The
this to the Lords not only against Peers but Commoners of which there are hundreds of presidents this very Parl Therefore the House of Lords hath the proper right of judicatory vested in them not the Commons who are rather informers prosecutors and Grand-Jury men to inform and impeach then Judges to hear censure or determine Seventhly those who are proper Judges in any Court of justice whiles the cause is judging sit in their * 25 E. 3. c. 2. 20 R 2. c. 3. 6 R. 2. c. 5. 14 H. 6. c. 3. â— R. 2. c. 3. 2 R. 2. c. 10. Robes covered on the bench not stand bare at the bar swear examine the witnesses in the cause not produce them or manage the evidence when the cause is fully heard argue and debate the businesse between themselves and give the definitive sentence But in cases that are to be tried judged in Parl the Lords only sit covered and in their Robes upon the Bench but the Comons stand bare at the Bar the Lords only swear and examine the witnesses and judge of their testimony the Commons only u Coke 4. Instit p. 24. produce the witnesses or presse and manage the evidence and when the businesse is fully heard the Lords only debate the businesse among themselves and give the finall Sentence and Judgment without the CoÌ„mons and that both in cases of Comoners and Peers Therefore the Lords or house of Peers are sole Judges in Parl not the CoÌ„mons And that they are and alwaies have been so de facto unlesse by way of Bil of Attainder or in such extraordinary cases when their concurrence hath been desired I shall prove by most clear and infallible evidence To pretermit the * Mr. Seldens Titles of Honor part 7. c. 5 p. 632 633 705 706. judgment of the Earls Barons in Parl in the case of Earl Goodwin for the murther of Alfred in K. Edw. Conf. reign before the Conquest and the judgment of the Barons the Lords in Parl against Tho Becket Arch-b of Can. in K. Hen. 2. raign cited by M. Selden of which you may chuse the same with the punctuall authority of Andr. Horne in his Mirror of Justices c. 1. § 2. forecited First in Pleas of the Crown and other Common Pleas plainly â—â—able in Parl as well between CoÌ„moners as Peers the Pleas have been exhibited heard and judgement given upon them by the King and Lords joyntly or the King alone by which the Lords assent or by the Lords themselves without the CoÌ„mons as is evident by the Parli Rolls and Pleas in Parl in K. Ed. 1. 2. 3. 4. Ric. 2. Hen. 4. 5. 6. where there are hundreds of instances to confirm it some of them printed in Sir Edw. Cokes 3 Instit c. 1 2. and M. St Johns Argument in Law upon the Bill of Attainder against the Earl of Strafford Secondly in all * 18 E. 1. rot Parl. t. 4 E. 3. n. 13. 21 E. 3. n. 65. 28 E. 3. n. 11 12. 50 E. 3. n. 48. 1 R. 2. n. 28 29 104. 2 R. 2. n. 36 37 31 32 33. Parl. 2. n. 21 to 27. 3 R. 2. n. 19 20 21. 7 R. 2. Parl. 2. n. 23 24. 8 R. 2. n. 14 15. 13 R. 2. n. 15 16. 15 R. 2. 22 23. 17 R. 2. n. 13 14 15 19. 18 R. 2. n. 11 10 16. 21 R. 2. n. 25 55 to 66. 1 H. 4. n. 91. 2 H. 4 n. 47 48. 5 H. 4. n. 40. 6 H. 4. n. 31 61 62. 3 H. 5. n. 19. 10 H. 6. n. 51. Writs of Error brought in Parl by Peers or CoÌ„moners to reverse any erroneous judgements touching their reall or personall Estates lives or attainders The KING LORDS ONLY ARE JUDGES and the proceedings upon such Writs are ONLY BEFORE THE LORDS IN THE UPPER House secundum Legem coâ—suetudinem Parliamenti So Sr Ed. Coke in direct terms in his 4. Instit p. 21 22 23. where he produceth divers presidents of such writs of Error out of the Parl Rolls and present experience manifests as much in all the the writs of Error brought this Parl adjudged and determined by the King and Lords alone without the privity of interposition of the CoÌ„mons A truth so clear that Lilburne himself in his Argument against the Lords Jurisidiction confesseth it and the Parl Rolls quoted in the Margine with sundry others resolve past all dispute If then the Lords be the sole Judges in all writs of Error concerning the goods estates free-holds inheritances lives and attainders of the Commoners of England notwithstanding the statute of Magna Charta c. 29. No Free-man shall be taken or imprisoned or disseised of his Free-holder Liberties of Free-customes nor outlawed nor exiled neither will we passe upon him nor condemn him but by THE LAWFUL IUDGMENT OF HIS PEERS c. the grand and principall objection against their Iudicature then by the self-same reason they are and may lawfully proceed against them in all other civill or criminall causes especially breaches of ther own priviledges of which themselves are the sole and only Iudges the cases of Lilburne and Overton properly triable in Parliament Thirdly in all Petitions and complaints against CoÌ„moners for redresse of grievances the King and Lords are the sole and proper Tuns and Judges not the CoÌ„moners as appears by all the Parl Rolls in former times wherein we find in the beginning of every Parl some Assistants of the Lords house appointed by them to be receivers of the Petitions of England Ireland Wales Scotland others appointed receivers of the Petitions of Gascoyne other parts beyond the Seas and the Isles of Jersy and Gernsey c. And some Lords appointed tryers of those Petitions who had power given them to call the L d Chancellor Treasurer Steward Chamberlain the Judges Kings Serjeants and others to their assistance prescribing also by what day the Petitions should all be exhibited and the place where they should be examined All particular persons usually presenting all their grievances and petitions immediately to the King Lords without any addresse to the CoÌ„mons by Petitions as now of late there being no Petitions of record in the Parl Rolls addressed immediately and originally to the Commons that I can find And towards the end of the Parl Rolls there is this Title usually The Petitions of the CoÌ„moners containing all Petitions of the CoÌ„mons house for redresse of publick or particular injuries and grievances presented to the King in the Lords house and answered by the King alone with the consent of the Prelats Counts Barons with which answers the Commons rested satisfied whether granted or denied as ofttimes they were Of which you may read somthing in Sr E. Cokes 4. Instit p. 16. more in the Records themselves Fourthly in all criminal causes in Parl by way of accusation impeachment or indictment the King Lords were the proper Judges as is evident by Placita Coronae coram
A PLEA for the LORDS OR A short yet full and necessary Vindication of the Judiciary and Legislative Power of the House of Peeres And the Hereditary just Right of the LORDS and BARONS of this Realme to sit vote and judge in the high Court of PARLIAMENT Against the late seditious Anti-Parliamentary printed Petitions Libells and Pamphlets of Anabaptists Levellers Agitators Lilburne Overton and their dangerous Confederates who endeavour the utter subversion both of Parliaments King and Peers to set up an Arbitrary Polarchy and Anarchy of their own new-modelling By WILLIAM PRYNNE Esquire a Well-wisher to both Houses of Parliament and the Republike now exceedingly shaken and indangered in their very Foundations Prov. 22. 28. Remove-not the ancient land-mark which thy fathers have set Prov. 22. 21. My sonne feare thou the Lord and the King and meddle not with those who are given to change for their calamity shall rise suddenly and who knoweth the ruine of them both LONDON Printed for Michael Spark at the blue Bible in Green-Arbor 164â— To all truly Honourable and Heroick Lords and Peeres of the Realme of England who are reall Patriots of Religion and their Countrey Right Honourable THough true Nobility alwayes founded in a Omnes pari forte nascimur solâ virtute distinguimur Minucius Feliâ— Octoâ— p. 123. Nobilitas sola est ac unica virtus Iuvenal Satyr 8. vertue and reall piety needs no other tutelar Deity or Apologie but it selfe amongst those b Omnes boni semper Nobilitati favemus qâ—ia utile est reipub Nobiles Homines esse dignos Majoribus suis quia valet apud nos clarorum Hominum bene derepub meritorum memoria otiam mortuorum Ciâ—ero Orat. pro P. Sex ingenious Spirits who are able to discerne or estimate its worth yet the iniquity of our degenerated Age and the frenzie of the intoxicated ignorant vulgar is such that it now requires the assistance of the ablest Advocates to plead its cause and vindicate the just Rights and Priviledges of the House of Peeres against the c Liâ—burne Overton and others licentious Quills and Tongues of lawlesse sordid Sectaries and Mechanick Levellers who having got the Sword and reines into their hands plant all their batteries and force against them crying out like those Babylonian Levellers of old d Psal 137. 7. against the House of Peeres Rase it Rase it even to the foundation thereof and lay it for ever levell with the very dust beholding all true Honor worth and Noblenesse shining forth in your Honors heroick Spirits with a malignant aspect because they despaire of ever enjoying the least spark thereof in themselves and prosecuting you with a deadly hatred because better and greater then ever they have hopes to be unlesse they can through trechery and violence make themselves the onely Grandees by debasing your highest Dignity to the lowest Peasantry and making the meanest Commoners your Compeers This dangerous seditious Designe hath ingaged me the unablest of many out of my great affection to reall Nobility and to the present totâ—ering condition of our Kingdome and Parliament the very pillars and foundations whereof are now not onely shaken but almost quite subverted without any Fee at all to become your Honors Advocate and voluntarily to plead your Cause and vindicate your undoubted right of sitting voting and judging in our Parliaments of which they strenuously endeavour to plunder both you and your posterities and to publish these subitane indigested Collections to the world to still the * Psal 65. 7. madnesse of the seduced vulgar whom Ignoramus Lilburne Overton Walwin and their Confederates have laboured to mutinie against your Parliamentary Iurisdiction * Isa 4 1. 25. treading upon Princes as upon mortar and as the Potter treadeth the clay in their illiterate seditious Pamphlets which I have here refuted by Scripture Histories Antiquities and Parliament-Rolls the ignorance whereof joyned with their malice is the principall occasion of their error in this kinde And truly were all our Parliament-Rolls Pleas Iournals faithfully transcribed and published in print to the eye of the world as most of our Statutes are by authority of both Houses of Parliament a work as worthy their undertaking as beneficiall for the Publike as any I can recommend unto their care it would not only preserve them from imbezelling and the hazards of fire and war to which they are now subject but likewise eternally silence refute the Sectaries and Levellers ignorant false Allegations against your Honors Parliamentary Iurisdictâ—on and Iudicature resolve and cleare all or most doubts that can arise concerning the power jurisdiction and priviledges of both or either House keepe both of them within due bounds the exceeding whereof is dangerous and grievous to the People except in cases of absolute necessity for the saving of a Kingdome whiles that necessity continues and no longer chalke out the ancient regular way of proceedings in all Parliamentary affaires whatsoever whether of warre or peace civill or criminall concerning King or Subject Natives or Forraigners over-rule and reconcile most of the present differences between the King and Parliament House and House Members and Members cleare many doubts and rectifie some grosse mistakes in printed Statutes Law-Books and our ordinary Historians add much light lustre and ornament to our English Annals and the Common Law and make all Lawyers and the Members of both Houses farre more able then now they are to mannage and carry on all businesses in Parliament when they shall upon every occasion almost have former presidents ready at hand to direct them there being now very few Members in either House well read or versed in ancient Parliament Rolls Pleas or Journalls the ignorance whereof is a great Remora to their proceedings and oft times a cause of dangerous incroachments of new Iurisdiction over the Subjects persons and estates not usuall in former Parliaments and of some great mistakes and deviations from the ancient methodicall Rules and Tracts of Parliament now almost quite forgotten and laid aside by raw unexperienced Parliament-men to the publike prejudice and injury of posterity Your Lordships helping hand to the speedy furthering of such a necessary publike worke will be a great accession to your Honor the best vindication of your Parliamentary Jurisdiction Right Power and Judicature against all Opposites till the accomplishment whereof I shall humbly recommend this short Plea in your Honors defence to your Noble Patronage who can pitch upon no better or readier meanes to support your Honor and Authority and to indeare your selves in the Peoples affections then in these distracted dangerous stormy times to ingage all your interest power and activity speedily to settle and secure Gods Glory Truth Worship and the publike Safety of the Kingdome against all open Opposers and secret Underminers of them to unburthen the People of their heavy Taxes the Souldiers insolencies and free quarter to redresse all pressing grievances all oppressing arbitrary
witnesse Ingulph Beda Huntingdon Mathew Westminster Florentâ—us Wigorniensis Malmesbury Hector Boetius Speed and other in their Histories Antiquitates Ecclesiae Britanicae Spelmanni Concilia Tom 1. Sir Edward Cooke in his Preface to the 9. Report and fourth Institut c. 1. and above all others Mr. Seldens Titles of Honor. part 2. c. 5. Truth triumphing over falsehood Antiquity over Novelty p. 56. to 90. and Mr. Lambert in his Archaion there being little or no mention at all of any Knights of Sbires Citizens or Burgesses in any of our Parliaments and Councels before the Conquest or in the Conquerors time and his next Successors but of Earles Barons Nobles Archbishops and Bishops onely for the most part whom Sir Edward Cooke and others conceive were comprehended under the names of Sapientum or wise men Seniores populi extending to Peers too as they confesse or at least wise under these phrases k Spelman C. p. 194. praesentibus omnibus Ordinibus illius Gentis cum vtris quibusdam Militaribus rather Souldiers than Knights of which we finde mention in the Councel of Beâ—henceld l Spelman Ibid p. 21â— An. 697. or omnium Sapientum Seniorum POPVLORVM totius Regni coupled with these pre-eminent Titles of Omnium Aldermannorum Principum Procerum Comitum who met together in a generall Councell under King Jue An. 713. Or m Spelman p. 318. cujuscunque Ordinis viros in the Conncell of Cloveskro An. 800. which expressions we finde are now and then mentioned in some ancient Councels and Parliaments though rarely And if that of n Hist p. 870. Ingulph and other our Historians and some Lawyers be true which o First institut f. 108. Sir Edward Cooke and p Titles of Honour part 2. â— 5. sec 3. p. 614 615. c. Mr. Selden deny that King Alfred first divided the Realme into Counties as all grant he did into Hundreds and Tithings and erected Hundred Courts wherein Knights of the Shire were alwayes yet are ought to be elected there could be no Knights of Shires at least if any Citizens or Burgesses to serve in Parliament before this division though there were Earles Dukes and Barons before his raigne who were present by the Kings summons not peoples elections at our Parliaments and Generall Councels as q Titles of Honour 2. chap. 5. sec 2. 3. 4. 5. Mr. Selden and r Glossarium Tit. Comitis Comitatus Sir Henry Spelman undeniably manifest Their sitting voting and judging therefore in Parliament being so ancient cleare and unquestionable ever since their first beginning till now and the sitting of Knights Citizens and Burgesses by the peoples election in our ancientest Parliaments and Councells not so cleare and evident by History or Records as theirs we must needs acknowledge and subscribe to their Right and Title or else deny the Knights Citizens and Burgesses rights in Parliament rather than theirs who have not so ancient nor cleare a Title or right as they Fourthly This Right and Priviledge of theirs is vested legally in them by the very Common-Law and Custome of the Realme which binds all men the unanimous consent of all our Ancestors all the Commons of England from age to age assembled in Parliament since we had any Parliaments who alwaies consented to desired and never once opposed the Lords sitting voting power or Judicature in Parliament and by Magna Charta it selfe wherein they are first mentioned and provided for Hereupon King Henry the third not long after Magna Charta was granted and at the same time it was proclamed and confirmed with a most solemne Excommunication in the presence of all the Lords and Commons by all the Bishops of England against the infringers thereof summoning a Parliament at London in the yeare 1255. to ayde him in his warrs in Apulia the Earles and Barrons absolutely refused to give him any assistance at all not onely because he had undertaken that warre without their advice but also for this reason Å¿ Math. Paris An. 1255. p. 884 885. Daniel p. 172 That ALL THE BARONS were not summoned by him to this Parliament AS THEY OUGHT TO BE ACCORDING TO THE TENOR OF MAGNA CHARTA whereupon they departing in discontent and refusing to sit longer the Parliament was disolved t Mr. St. Johns Speech concerning Shipmony p. 33. 1. H. 4. n. 21. 22 25. 36. And upon this very ground among others the Parliament of 21 R. 2. with all the Acts and proceedings therein were repealed and nulled by the Parliament of 1. H. 4. because the Lords who adhered to their King were summoned by him to the Parliament and some of the opposite party imprisoned impeached and omitted and many Knights of the shire were onely elected by the Kings nomination Letters to the Sheriffes And the Parliament it self kept by force viris armatis sagittarijs minensis brought out of Cheshire as an extraordinary guard quartered in the Kings Court at Westminster and about Charing Crosse and the Muse of which u Chron p 389. 390. Grafton and other Historians writes thus That they fell suddenly into so great pride of the Kings favour that THEY ACCOVNTED THE KING TO BE AS THEIR FELLOW and THEY SET THE LORDS AT NOVGHT yet few or none of them were Gentlemen but taken from the plough and Cart and other Crafts And after these rusticall people had a while courted they entred into so great a boldnesse that they would not let neither within nor without the Court to beat and slay the Kings good subjects to take from them their victualls and pay for them little or nothing at their pleasure as our free-quarterers doe now falling at last to ravish mens wives and daughters And if any man fortuned to complaine of them to the King he was soone rid out of the way no man knew how or by whom so as they did what they listed the King not caring to doe justice upon them but favoring them in their misdoings confiding in them and their guards against any others of the Kingdome which gave Lieges of his Kingdome great matter of commotion and discontent The bringing up of which guard to Westminster to force and overawe the Parliament to effect his owne designes is one principle Article exhibited against him by the Parliament for which he was deposed I pray God our New armed Guard and Courtiers at Whithall and the Muse of as meane condition as those fall not by degrees to the selfesame exorbitances contempt of the King Lords Parliament and oppression of the people to their generall mutining and discontent In the Parliament of 6 E. 3 N 1. Parl. 2. N. 5. 6. 8. 9. and most of the ensuing Parliaments in this Kings reigne and in divers Parliaments in Ric. 2. Henry 4. c. 5. 6. was found in the Parliament Roules that the Parliaments have beene proroged and adjourned from the dayes they were summoned to meet and have not sate nor acted
at all because some of the Lords were not come by reason of foule weather shortnesse of warning or other publike imployments all their personall presence in Parliament being reputed necessary and expedient And 20. R. 2. N. 8. The Commons themselves in Parliament required the King to SEND FOR SUCH BISHOPS and LORDS WHO WERE ABSENT to come to the Parliament before they would consult of what the Chancellor propounded to them in the Kings name and behalfe to consider of To recite no more ancient Presidents in the Parliament of 2. Caroli the Earle of Arundell sitting in the Parliament being committed by the King to the Tower of London about his sonnes marriage May 25 1626. without the Houses privity and consent whereby their Priviledges were infringed and the House deprived of one of their Members presence thereupon the Houses of Peeres adjourned themselves on the 25 and 26. of May without doing any thing and upon the Kings refusall to release him they adjourned from May 26. till June 2. refusing to sit and so that Parliament disolved in discontent his imprisonment in this case being a breach of Priviledge contrary to Magna Charta And not long after the beginning of this Parliament upon the Kings accusation and impeachment of the Lord Kimbolton and the five Members of the Commons House * An Exact collection part 1. both Houses adjourned and sate not as Houses till they had received satisfaction and restitution of those Members as the Journals of both Houses manifest it being an high breach of their Priviledges contrary to the Great Charter If then the Kings bare not summoning of some Peares to Parliament who ought to sit there by their right of Perage or impeaching or imprisoning any Peere unjustly to disable them to sit personally in Parliament be a breach of the fundamentall Lawes of the Realme and of Magna Charta it selfe confirmed in above 40. succeeding Parliaments then the Lords right to sit vote and Judge in Parliament is as firme and indisputable as Magna Charta can make it and consented to and confirmed by all the Commons people and Parliaments of England that ever consented to Magna Charta though they be not eligiable every Parliament by the freeholders people as Knights and Burgesses ought to be and to deny this birth-right and Priviledge of theirs is to deny Magna Charta it selfe and this present Parliaments Declarations and proceedings in the case of the Lord Kimbolton a member of the House of Peers Fifthly The ancient Treatise intituled * See Cooke â— Justit p. 12. for the Antiquity and for the Authority of this Treatise The manner of holding Parliaments in England in Edward the Confessors time before the Conquest rehearsed afterwards before William the Conqueror by the discreet men of the Kingdome and by himselfe approved and used in his time and in the times of his Successors Kings of England if the Title be true and the Treatise so ancient as many now take it to be determines thus of the Kings and Lords right to be personally present in all Parliaments The King IS bound by all meanes possible TO BE PRESENT AT THE PARLIAMENT unlesse he be detained or let there from by BODILY SICKNESSE and then he may keep his Chamber yet so THAT HELYE NOT WITHOUT THE MANOUR OR TOWNE WHERE THE PARLIAMENT IS HELD and then he ougth to send for twelve persons of the greatest and best of them that are summoned to the Parliament that is two Bishops two EARLES two BARONS two Knights of the Shire two Burgesses and two Citizens to looke upon his person to testifie and witnesse his estate and in their presence he ought to make a Commission and give Authority to the Archbishops of the Peace the steward of England and Cheife Justice that they joyntly and severally should begin the Parliament and continue the same in his name expresse mention being made in that Commission of the cause of his absence then which ought to suffice and admonish the OTHER NOBLES cheife men in the Parliament together with the evident testimony of the twelve Peers of theirs The reason is BECAVSE THERE WAS WONT TO BE A CRY OR MURMVR IN THE PARLIAMENT FOR THE KINGS ABSENCE BECAUSE HIS ABSENCE IS HURTFULL and DANGEROUS TO THE WHOLE COMMONALTY OF THE PARLIAMENT and KINGDOME WHEN THE KING SHALL BE ABSENT FROM HIS PARLIAMENT Neither indeed OUGHT OR MAY HE BE ABSENT BUT ONELY IN THE CASE AFORESAID After which it followes The Archbishops Bishops and other cheife of the Clergy ought to be summoned to come to the Parliament and Also EVERY EARLE and BARON and their PEERS OUGHT TO BE SUMMONED and COME TO THE PARLIAMENT c. Touching the beginning of the Parliament The Lord the King shall sit in the miâ—st of the great bench and is bound to be present in the first and last day of Parliament And the Chancellors Treasurer and Barons of the Eschequer and justices were wont to record the defaults made in Parliament according to the order following In the third day of the Parliament the Barons of the Cinqueports shall be called and after wards the BARONS of England after them the EARLES Whereupon if the Barons of the Cinqueports be not come the Barony from whence they are shall be amerced at an hundred markes and an Earle at one hundred pounds After the same manner it must be done to those who are Peers to Earles and Barons After which it relates the manner of place of the Earles Barons and Peers in Parliament Then addes The Parliament may be held and OVGHT every day to begin at one of the clocke in the afternoone at which time THE KING IS TO BE PRESENT AT THE PARLIAMENT and ALL THE PEERS OF THE KINGDOME None of all the Peers of the Parliament MAY OR OUGHT TO DEPART alone from the Parliament unlesse he have obtained and that in full Parliament leave from the KING and of ALL HIS PEERS so to doe and that with all there be a remembrance kept in the Parliament roll of such leave and Liberty granted And if any of the Peers during the terme of the Parliament shal be sick or weake so as he is not able to come to the Parliament then he ought three dayes together send such as may excuse him to the Parliament or else two Peers must go and view him and if they finde him sicke then he may make a Proxy Of the Parliament the King is the Head the beginning and ending So this ancient Treatise The Statute of 5. R. 2. Parl. 2. ch 4. enacts by COMMAND of the King and ASSENT of the Prelates LORDS and COMMONS in Parliament That all and singular persons and Commonalties which from henceforth shall have the Summons of the Parliament shall come from henceforth to the Parliament in the manner AS THEY BE bound TO DOE and hath been ACCVSTOMED within the Realme of England OF OLD TIME And every person of the said Realme which from henceforth shall have the
said Sommons be he Archbishop Bishop Abbot Prior DUKE LORD BARON Baronet Knight of the Shire Citizen of City Burgesse of Burgh or other singular person or Commonalty do absent himselfe or come not at the said Summons except he may reasonably or honestly excuse himself to our Soveraigne Lord THE KING HE SHALL BE AMERCED and OTHERWAYES PVNISHED ACCORDING AS OF OLD TIME HATH BEEN USED TO BE DONE within the said Realme in the SAID CASE Which relates unto and agrees expresly with that forecited out of Modus tenendi Parliamentum If then all the Judges and Peares in Parliament are bound to attend the Parliament not to depart without the Kings and Houses leave under paine of Amercement and other punishment as this Statute resolves and 3. Ed. 3. 19. Fit 2. Câ—ron 161. Stamford l 3. c. 1. f. 153. Cooke Instit p. 15. 16. 17. 43 18. E. 3. Mo. 1. 2 8. and 31. H. 6. n. 46. What fine were imposed on absent Lords manifest then questionlesse they ought of right to sit in Parliament else it were the height of Injustice thus to fine them In the tenth yeare of King â— * Grafâ—oâ—â— Cron. p. ◠〈◊〉 350. 2. this King absented himselfe from his Parliament then sitting at Westminster residing at Eltham about forty dayes and refusing to come to the Parliament and yet demanding from them foure fifteenes for maintenance of his Estate and outward Wars Whereupon the whole body of the Parliament made this answer THAT VNLESSE THE KING WERE PRESENT THEY WOULD MAKE THEREIN NO ALLOWANCE Soone after they sent the Duke of Gloucester and Bishop of Ely Commissioners to the King to Eltham who declared to him among other things in the Lords and Commons behalfe how that by AN OLD ORDINANCE THEY HAVE AN ACT if the King absent himselfe 40. dayes not being sicke but of his owne minde not heeding the charge of his people nor their great paines and will not resort to the Parliament they may then lawfully returne to their Houses And now sir said they you have beene absent a longer time and yet refuse to come amongst us which is greatly to our discontent To which the King answered Well we doe consider that our owne people and Commons goe about to rise against vs wherefore we thinke wee can doe no better then to aske ayd of our Cosen the French King and rather to submit us to him then unto our owne subjects The Lords answered Sir that Counsell is not best but a way rather to bring you into danger c. By whose good perswasions the King was appeased and Promised to come to the Parliament and condiscend to their Petitions and according to his appointment he came and so the Parliament proceeded which else had dissolved by the Lords departure thence in discontent and the Kings wilfull absence Andrew Horne in his Mirrour of Justices in the raigne of King Edward the first writes That our Saxon Kings divided the Realme into 38 Counties over which they set so many Counts or Earles and though the King ought to have no Peers in his land but PARLIAMENTS all Writs and Plaints of the Moneys of the King Queene and their Children and of those especially who otherwise could not have common right of their wrongs These Companions are now called Counts after the latine word Comites For to the Estates of the Realme King Alfred assembled the COVNTS or Earles and ordained by a Perpetuall Law that twice a yeare or oftner they should assemble at London in Parliament to consult of the Government of the people of God Fleta l. 2. c. 2. p. 66. writes thus in the same Kings raigne Habet enim Rex curiam suam in concilio suo in Parliamentis suis PRAESENTIBUS Praelatis COMITIBUS BARONIBUS PROCERIBUS alijs viris peritis vbi terminatae sunt dubitationes judiciorum moris injuriis eversis nova constituuntur remedia And l. 17. c. 17. he writes thus Rex in populo regendo superiores habet Vidilicet legem perfactus est Rex Curiam suam to wit of Parliament videlicet COMITES BARONES Comites enim a Comitia dicuntur qui cum viderint Regem sine froeno Froenum sibi apponere TENENTVR ne clament sabditi Domine Jesu Christe in Chamo froeno maxillas eorum constringe Sir Thomas Smith in his Common-wealth of England * Bracton l. 2. c. 〈◊〉 l. 3. c 9. 〈◊〉 the like in the same words in Henry the 3. his reigne l. 2. c. 1. John Vowel and Ralph Hollinshed vol. 1. c. 6. p. 173. Mr. Cambden in his Britania p. 177. John Minshew in his Dictionary vuell in his Interpreter Title Parliament Powell in his Attornyes Academy and others unanimously conclude That the Parliament consisteth of the KING the LORDS SPIRITVALL and TEMPORALL and the Commons which STATES represent the body of all England which make but one assembly or Court called the Parliament and is of all other the Highest and greatest Authority and hath the most high and absolute power of the Realme And that no Parliament is or can be holden without the King and Lords Mr. Crompton in his Jurisdiction of Courts affirmes particularly of the High Court of Parliament f. 1. c. This Court is the highest Court of England in which the King himself fits in person and comes there at the beginning and end of the Parliament and AT ANY OTHER TIME WHEN HE PLEASETH ORDERING THE PARLIAMENT To this Court come ALL THE LORDS OF PARLIAMENT as well spirituall aâ— temporall and are severally summoned by the Kings writ at a certaine day and place assigned The Chancellour of England and other great officers or Judges are there likewise present together with the Knights Citizens and Burgesses who all ought to be personally present or else to be amerced and otherwise punished if they come not being summoned unlesse good cause be shewed or in case they depart without the Houses or Kings speciall license after their appearance before the Sessions ended And he resolves that the King Lords and Commons doe all joyntly make up the Parliament and that no Law nor Act of Parliament can be made to binde the subject without all their concurrent assents Sir Edward Cooke not onely in his Epistle before his ninth Report and Institutes on Littleton p. 109. 110. But likewise in his 4. Institutes published by Order of this present Parliament c. 1. p. 1. 2 c writes thus of the high Honorable Court of Parliament This Court consisteth OF THE KINGS MAJESTIE sitting there as in his royall politick capacity and of the three Estates of the Realme viz. Of the Lords Spirituall Archbishops and Bishops being in number 24. who sit there in respect of their Counties or Barronies parcell of their Bishopricks which they hold also in their politick capacity and every one of these when the Parliament is to be holden ought exdebito Justitiae to have a writ of summons The LORDS TEMPORALL Dukes Marquesses Earles
Viscounts and Barons who sit there by reason of their dignities which they hold by discent or creation And likewise EVERY ONE OF THESE being of full age OUGHT TO HAVE a writ of summons EX DEBITO JUSTITIAE The third estate are the Commons of the Realme whereof there bee Knights of Shires or Counties Citizens of Cities Burgesses of Burro All which are respectively by the Shires or Counties Cities Buroughs by force of the Kings writ Ex debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realme and trusted for them and are in number at this time 493. Headed And it is observed that when there is best appeareance there is the best succession in Parliament At the Parliament holden in the 7. yeare of H. 5. holden before the Duke of Bedford Guardian of England of the Lords Spirituall Temporall there appeared but 30. in all at which Parliament there was but one Act of Parliament passed and that of no great weight In An. 50. H. 3. ALL THE LORDS APPEARED IN PERSON and not one by Proxy at which Parliament as appeareth by the Parliament Roll so many excellent things were sped and done that it was called Bonum Parliamentum And the King and these three estates are the great Corporation or the body of the Kingdome doe sit in two Houses of this Court of Parliament the King is Caput Principium Finis The Parliament cannot begin but by the Royall Presence of the King either in person or representation by a Guardian of England or Commissioners both of them appointed under the great Seale of England c. And 42. E. 3. Rot. Parl. num 7. It is declared by the Lords and Commons in full Parliament upon demand made of them on the behalfe of the King That they could not assent to any thing in Parliament that tended to the disinherison of the King and his Crowne whereunto they were sworne And p. 35. he hath this speciall observation That it is oâ—served by ancient Parliament men out of Record that Parliaments have not succeeded well in five cases First when the King hath beene in diffeâ—ence with his Lords and with his Commons Secondly When any of the great Lords were at variance betweene themselves Thirdly When there was no good correspondence between the Lords and Commons Fourthly When there was no vnity between the Commons themselves in all which our present Parliament is now most unhappy and so like to miscarry and succeede very ill Fiftly When there was no preparation for the Parliament before it began every of which hee manifests by particular instances From all these and sundry z Judge Hâ—â—rons Argument of Mr. Hampdens case p. 32. 33. Daltons office of Sherriffs other Authorities it is most evident transparent That both the King himselfe and Lords ought of right to be present in Parliament and ever have been so as well as the Commons and neither of them to be excluded since they all make up but one Parliament ought of right and duty to be present at and no Lords and Commons to depart from it without speciall leave under paine of amercement and other penalties because no binding Law can be passed without their joynt consents And that the Commons alone are no more a Parliament of themselves without the King and Lords than the Common Councell of London are an intire Corporation without the Lord Major Aldermen or the Covent without the Abbot the Chapter without the Deane or the leggs or belly a perfect man without the head or neck Sixtly The ancient and constant forme of endorsing Bills in Parliament begun in the Commons House in all Parliaments since the Houses first divided 33. H. 6. 17. Brooke Parliament 4 Cromptons jurisdiction of Courts f. 8. Mr. Hackuel of the manner of passing Bills in Parliament unanswerably demonstrates the Commons of Englands acknowledgment of the Lords right to fit vote assent or disassent to Bills in Parliament viz. SOIT'BAYLE A SEIGNEURS let it be delivered or sent up to the Lords Yea the Commons constant sending up of their own Members with Messages to the Lords and receiving Messages from them and intertaining frequent conferences with them in matters where their opinions differ in which conferences the Lords usually adhere to their dissents unlesse the Commons giveth emsatisfaction and convince them and the Lords oft times convince the Commons so farre as to consent to their alterations of Bills Ordinances Votes and oft to lay them quite afide is an unquestionable argument of their Right to sit and vote in Parliament and of their Negative Voyce too All which would prove but a meer absurdity and superfluity if the Commons in all ages and now too were not convinced that the Lords had as good right to sit and vote in Parliament and a Negative and dissenting voyce as well as they never once questioned or doubted till within this yeare or two by some seditious Disciples of Lilburnes and Overtons entering who endeavoured to evade their justice on them Seventhly This just Right of the Lords is expresly and notably confirmed by all the Commons of England in the Parliament of 31. H. 8. c. 10. concerning the placing and sitting of the Lords and Great Officers of State in the Parliament House made by the Commons consent It being in vaine to make such a Law continuing still till this very day both in force and use if they had no lawfull right to fit and vote in Parliament because they are not elective as Knights and Burgesses are And by the Statute of 39. H. 6. c. 1. made at the Commons own Petition to repeale the Parliament and all proceedings of it held at Coventry the yeare before by practice of some seditious persons of purpose to destroy some of the great Nobles faithfull and Lawfull Lords and Estates meerly out of malice and greedy and unsatiable coveteousnesse to possesse themselves of their lands possessions Offices and goods whereby many great Injuries Enormities and Inconveniences well nigh to the ruine decay and universall subvertion of the Kingdome ensued The very designe of our Lilburnists Sectaries and Levellers now out of particular malice and coveteousnesse to share the Lords and all rich Commoners lands and estates between them being poore and indigent covetuous people for the most part scarce forty of them worth one groat at least before these times This apparent Right of theirs is undeniably ratified and acknowledged not only by the very words of the writs by which the Lords themselves are summoned to the Parliament but even of the writs for election of Knights and Burgesses the forme and substance whereof are ancient and can receive NO ALTERATION NOR ADDITION but by Act of Parliament as b Institutes 4 p. 10. Sir Edward Cooke resolves By this writ the Prelates Nobles and others of the Realme are summoned to the Parliament there to treat and conferre with the King
3. p. 156 157. where his words contradictions in this kinde are receited at larg as appeares by their severall Petitions and Complaints to them upon sundry occasions heretofore by their resorting to them for Justice against Strafford Canterbury and others Yea John Liburne himselfe till his late quarrell with them not onely acknowledged their very power of Judicature but highly applauded their Justice in his owne cause Petitioning and suing to them not onely for reversall of the sentence against him in Starchamber but likewise for dammages and reparations against his Prosecutors â—leading his cause by his Counsell before them as his proper Judges who thereupon by Judgement of the House vacated the Decree against him as illegall voted him Dammages and passed him an Ordinance for the recovery and levying thereof all which he himselfe both published in sundry of his printed Pamphlets wherein he acknowledgeth and extolleth their Justice Take but one passage for all in his Innocency and Truth justified p. 74. 75. If I be transmitted up to the Lords and confidently beleeve I shall get forward out of the former experiences of that Justice that I have found there and I will instance two particulars First when I was a Prisoner in the Fleet and secondly May the fourth one thousand sixe hundred forty one The King accused mee of High Treason and before the Lords barre was I brought for my life where although one Littleton servant to the Prince swore point blanke against mee yet had I free liberty to * He did not then demurr to their Jurisdiction speake for my selfe in the open House And upon my desire that Master Andrewes also might declare upon his Oath what hee knew about my businesse it was done And his Oath being absolutely contradictory to Master Littletons I was both freed from Littletons malice and the Kings accusation at the Barre of the whole House And for my part * Nota. I AM RESOLVED TO SPEAKE WELL OF THOSE THAT HAVE DONE ME JUSTICE and not to doubt THEY WILL DENY IT MEE till such time as by experience I finde they doe it And at that time he was so much for the Lords that he writes most disgracefully derogatorily of the Commons and other his Confederates by his example and of their want of power injustice and proceedings d His â—etter to a friend-Innocency and truth justified His â—etters to the Generall Hen. Martin L. G. Cromwell Englands Birthright See Mr. Edw. Gangraena part 3. p. 146. to 228. quarrells onely with them and their Committees for their delayes and injustice towards him telling them to their faces in many of his former and late printed Libels That they have no power at all to commit or examine him or any other Commoner of England without the Lords nor yet to give or take an Oath That they are but a peece and lowest part of the Parliament not a Parliament alone That they can make no binding Votes Ordinances or Lawes nor commit nor command any Commoner without the Lords and in one or two Pamphlets he endeavours to prove them to be now no lawfull House of Commons at all nor would hee ever acknowledge them to be so and that he would make no more conscience of cutting theirs and the Lords throates the Tyrants and Oppressors at Westminster then of killing so many Weasels and Polcats with many other like scurrilous and mutinous expressions His owne printed Papers Petitions and Actions therefore are an unanswerable confutation of his malicious contradictions of their Authority and judicature since for their exemplary justice on him and he must either now re-acknowledge their right of sitting voting and judging in Parliament to be lawfull or else renounce his owne former Petitions and addresses to them for justice retract all his former printed Papers asserting their Power and judicature and extolling their justice yea disclaime their judgment for vacating his owne Sentence in the Starchamber their awarding him Dammages and passing an Ordinance to recover them as meerly null and voyd being made before no lawfull or competent Judges as now he writes since not elected by the peoples Votes And let those his followers who admire him for his Law observe these his palpable and invincible contradictions and be ashamed and afraid to follow such an ignorant and erronious guide who writes onely out of malice and faction not of judgement as his contradictions evidence 11ly The Acts for preventing the inconveniences happening by the long intermission of Parliaments And to prevent the inconveniences which may happen by the untimely adjourning proroging or dissolving the Parliament made this Parliament and assented to by the King at the Commons importunity confirme the Lords interrest and right to sit and Vote in Parliament beyond all dispute and give them anâ—w power to summone a Parliament themselves in some cases â—â— ly The ancient forme still continued till this day of dismissing Parliaments and dissolving them by the Kings licensive THE LORDS and COMMONS TO DEPART HOME and TAKE THEIR EASE 37. E. 3. n. 34. 38. E. 3. n. 18. 40. E. 3. n. 16. 43. E. 3. n. 34. 45. E. 3. n. 8. 13. 47. E. 3. n. 7. and all Parliaments since proves their right of sitting in and attending the service of the Parliament in person without speciall licence of the King during its continuance in dispite of all ignorant cavils to the contrary Having thus impregnably evinced the Lords undoubted right to sit and vote in Parliament though they be not elective by the peoples voyces as Knights and Burgesses are I shall next discover unto our illiterate Ignoramusses who oppose this their right the justice and good grounds and reasons of our Ancestors why they instituted the Lords and Peers to sit and vote in Parliament by right of their Nobility and Peerage which will abundantly satisfie rationall men and much confirme their right First the Nobles and Great Officers in all Kingdomes and in our Kingdome too in respect of their education birth experience and imployment in State-affaires have alwayes been generally reputed the wisest and best experienced Common-wealths men best able to advise and Councell the King and Kingdome in all matters of Government Peace or War as our Historians Antiquaries Polititians and Records acknowledge and attest whence they were antiently stiled e Mr. Seldenâ— Titles of honour part 3. ch 5. Sir Edward Cookes Epistle to the 9. Report and â— Instit p. 120. 4. Instit p. 2. Cambdens Brit. p. 177. Spelmanni Concil Tom. 1. Aeldermen Wisemen Magnates Optimates Sapientes Sapientissimi Clarissimi viri Conspicui Clarique viri Primates Nobiles c. in our Historians and Records and our Parliaments in that respect are frequently stiled in ancient times Consilium SAPIENTVM upon which Grounds our Kings and * 1. E. 3. n. 36. 55 56. 45 E. 3. n. 15 16. 50 E. 3. n. 10. to 14. 1 R. 2. n. 10. to 27 47 50 51. 112 113. 17 R. 2. c. 1
2. 13 R. 2. n. 6 7. 17 R. 2. n. 17 18. 8 H. 4. n. 31. to 92. 11 H. 4. n. 14. 28. 39. 44. 13 H. 4. n. 11. Commons too when ever they recommended Councellors of State to the King in Parliament made choice of f See the Soveraigne Power of Parliaments part 1. and 2. Lords and other Peers for their Privy Councellors and therefore it was thought fit just and equall the King should ever summon them to the Parliament by his Writ without any election of the people Mr. Pryns Truth Triumphing over falshood p. 56. to 70. Stat. de 4 E. 1. c. 2. Lambert Archaion for their own inherent wisdome excellency and worth the Originall cause of advancing and ennobling them at first as is expressed in their Patents and evident by these Scripture texts Esth 1. 13 14. Isay 59. 11 12 13. Jer. 5. 5. c. 10. 7. c. 51. 57. Dan. 2. 48. c. 6. 1 2 3. Gen. 41. 39 40. Psal 101. 21 22. compared together This ground of calling the Nobles to the Parliament is intimated in the very words of the summons Et ibidem VOBIS CUM Coloquium habere tractare de arduis urgentibus Regni Ecclesiae Anglicanae negociis VESTRUM QUE CONSILIUM IMPENSUR c. Et hoc nullatenus omittatis which implies them to be men of wisdome and experience able to counsell and advise the King in all his weighty and arduous affaires both of the Kingdome and Church I could give many instances wherein the Commons in Parliament have extraordinarily applauded the Lords and Peers for their great wisdome and especially desired their wholesome Counsell as persons of greater wisdome and experience then themselves but for brevity sake I shall cite onely two Records one of them most sutable to the present deplorable condition of our State and worthy imitation In the Parliament of 21 Edw. 3. no. 45. William de Thorpe in the presence of the King Prelates Earles Barons and Commons declared that the Parliament was called for two causes The first concerning the Wars which the King had undertaken by the consent of the Lords and Commons against His Enemies of France The second how the Peace of England may be kept Whereupon the King would the Commons should consult together and that within four daies they should give answer to the King and His Counsell what they think therein On the fourth day the Commons declare THAT THEY ARE NOT ABLE TO COUNSEL ANY THING TOUCHING THE POINT OF WAR wherefore they desire in that behalf to be excused And that the King will thereof ADVISE WITH HIS NOBLES AND COUNCEL and what shall be so amongst them determined they the Commons will thereto assent confirme and establish By which it is evident the Commons then reputed the Nobles more wise and able to advise the King in matters of War then themselves who confessed their inability herein and therefore submitted to assent to whatever the Nobles and Councel should therein advise Him 28 Edw. 3. n. 55. The Commons submit the whole businesse of the Treaty of Peace with France TO THE ORDER OF THE KING AND OF HIS NOBLES And â—6 Edw. 3. n. 6. The LORDS only advise the King touching Truce or War with Scotland In the first Parliament of 15 Edw. 3. n. 11. the Commons having delivered in divers Articles concerning the redresse of grievances and publick affaires to the King prayed that unto the Wednesday ensuing their Articles may be committed to certain BISHOPS BARONS AND OTHER WISE MEN there named BY THEM TO BE AMENDED which the King granted whereas the Lords exhibited their Articles 〈◊〉 to the King and the Bishops their Articles apart in this Parliament and protested that they ought not to answer but in open Parliament BY AND WITH THEIR PEERES without joyning with the Commons num 6 7 18 c. 26 27 35 37. which course they held in most following Parliaments I shall conclude with one President more most suitable to the present deplorable condition of our State and worthy imitation In the Parliament of 5 Hen. 4. Rot. Parl. num 9. 10. The Commons having presented to the King in Parliament divers grievances in the ill managing of His Revenues the decay of His Castles Houses and Parks the great poverty and pressures of His Subjects and danger of the Enemies thereupon they most intirely and cordially prayed the King to consider the eminent perils of all parts of the Realm by reason of the Enemies and Rebels of which they had news from day to day and that as the case then stood if such mischiefs were not speedily and graciously remedied and reformed in this Parliament it might fall out upon sodain arivall of Enemies or by some other means this Parliament must of necessity be departed from by all and dissolved so as the Lords and Commons should never re-assemble again to redresse the said Mischiefs and others which God defend And therefore that it would please the King considering the HIGH WISDOMES AND DISCRETIONS OF THE LORDS and that THEY HAD KNOWLEDGE OF MANY PERILS AND MATTERS which could not be so clearly known to the King that he would now in this present Parliament charge ALL HIS LORDS Spirituall and Temporall upon the faith they principally owe to God and the faith Homage and Allegiance which they owe to our Lord the King himself for the aid and salvation of themselves and of all the Realm that the said Lords WOULD COUNSEL and shew Him their advice and WHOLSOME COUNSEL IN THIS BEHALF SEVERALLY INTIRELY without dissimulation or adulation having regard to the great mischiefs and necessity aforesaid And thereupon our Lord the King most graciously with His own mouth in full Parliament charged and commanded as well the Lords as the said Commons that they should do their diligence and shew unto Him their good and wholsome Counsels in this behalf for the aid of Him and all His Realm And after the said Commons in the same Parliament made request to the said Lords that seeing the King had given them such a charge and command and that in so high a manner of Record that they would do their diligence well and loyally to persever the same without any courtesie made between them in any manner as they would answer before the most High and before our Lord the King and to all the Realm in time to come and that the Commons themselves thereupon would do the like on their party Which if both Lords and Commons would now cordially and sincerely promise and ingage to do without self-ends or interests we might see our Church and Kingdome speedily setled in a peaceable and happy condition In brief the Lords in the very Writ touching Knights and Burgesses are stiled The Common Councell of the Kingdome and the Knights Citizens and Burgesses are called to inform and assent to that which they and their King shall Ordain and 5 Ric. 2. Parl. 2. n. 3. 6 R. 2. n. 8 9 11 26.
and Parl. 2. R. 2. n. 7 9. they are called the GREAT COUNCEL OF LORDS by waging of their extraordinary wisdome and abilities And therefore most fit to sit vote and judge in Parliament Secondly The Lords and great Officers of the Realme as such were ever reputed persons of greatest Valour Courage Power in regard of their great interests Estates allies and retainers and so best able to withstand and redresse all publike grievances and enchroachments of the King upon their owne and the peoples Liberties in defence whereof they have in ancient times been alwayes most ready and active to spend not only their estates but blood and lives for wherewith they have redeemed and preserved those Liberties and Freedomes we now enjoy and contend for And in this regard our ancesters in point of wisdome policy and right thought meet that they should alwayes be sommoned to and bear chief sway in our Parliaments in respect of their Peerage Power and Nobility only without the peoples election This reason of their sitting in Parliament we find expresly recorded in Bracton l. 2. c. 16. fol. 34. and in Fleta l. 1. c. 17. The King say they hath a Superiour namely God also the Law by which He is made a King likewise His Count to wit THE EARLS BARONS because they are called Counts as being the KINGS FELLOWS and he who hath a Fellow hath A MASTER And therefore if the King shal be without a bridle that is without a Law debent ei fraenum imponere THEY OUGHT TO IMPOSE A BRIDLE ON HIM c. which the Commons being persons of lesse power and interest were unable to do Andrew Horn in his Mirrour of Justice ch 1. § 2 3. renders the like reason In all the contest and Wars between K. John Hen. 3. Edw. 2. Rich. 2. concerning Magna Charta and the Liberties of the Subjects the Lords Barons were the Ring-leaders and chief Opposers of these Kings Usurpations and Encroachments on the people as all our g See Mat. Paris Matthew Westminster Walsingham Huntingdon Holings head Polythronicon Coxton Grimsâ—on Stow Speed Trussell Baker Martin Daniel How and the Soveraign Power of Parliaments Kingdomes part 1 2. 3. 10 R. 2. c. 1 2. 11 R. 2. c. 1. to 7. 21 R. 4. c. 7. to 13. â— H. 4. c. 2. for proof hereof Histories and Records relate whence they stile the Wars in their times THE BARONS WARS and before this the Nobles were the principall Actors in resisting the Tyranny of K. Sigebert and K. Bernard and disthroning them for their misdemeanors as is clear by Mat. Westminster in his Flores Historiarum an 756. 758. To give some brief hints to clear this truth An. Dom. 1214. In the 16. year of h Mat. Paris Hist Angl. p. 233. to 282. Daniel p. 140. to 144. Speed p. 558. to 567. K. John a Parliament held at Pauls July 16. the Charter of Liberties granted to the people by K. Hen. 1. being read and confirmed THE BARONS swore in the Arch-bishops presence that if need were they would spend thier blood And afterwards at St. Edmonds Bury the BARONS swore upon the High Altar That if K. John refused to confirm and restore to them those Liberties the Rights of the Kingdom they would make War upon Him and withdraw themselves from His allegiance till he had ratified them all by His Charter under Seal Which they accordingly performed Tota Angliae Nobilitas in unum collecta all the NOBILITY OF ENGLAND COLLECTED INTO ONE appeared in this defence of their own and the peoples Rights and Liberties against the King whereupon it was afterwards enacted That there should be 25 BARONS chosen by the LORDS not Commons who should to their utmost power cause the Great Charter confirmed by K. John to be duly observed That if either the King or His Justicier should transgresse the same or offend in any one Article 4. of the said BARONS should immediately repaire to Him and require redresse of the same without delay which if not done within forty daies after that then the said 4. BARONS and the rest should distrain and seize upon the Kings Castles Lands and Goods till amends was made according to their arbitration Such confidence and power was then reposed in the BARONS alone i Hist Angl. p. 233. Mat. Paris speaking of the death of Geoffry Fitz-Peeter one of the greatest Peers of that age writes thus of him This year an 1214. Geoffry Fitz-Peeter Justiciary of all England a man of great power and authority TO THE GREATEST DETRIMENT OF THE KINGDOM ended his daies the 2 day of Octob. ERAT autem FIRMISSIMA REGNI COLVMNA for he was the most firm pillar of the Kingdom as being a Nobleman expert in the Laws furnished with treasures rents and all sort of goods and confederated to all the great men of England by blood or friendship whence the King without love did fear him above all men for he governed the raynes of the Kingdom Whereupon after his death England was become like a ship in a storm without an helm The beginning of which tempest was the death of Herbert Arch-bishop of Canterbury a magnificent and faithfull man neither could England breath again after the death of these two When K. John heard of Fitz-Peeters death turning to those who sate about him He said By Gods feet now am I first King and Lord of England He had therefore from thenceforth more free power to break His Oaths and Covenants which He had made with the said Geoffry for the peoples Liberty and Kingdoms peace Such Pillars and Staies are great and stout Peers to a Kingdom Curb to tyrannicall Kings and therefore of meeâ— Right ought to have a place and voice in Parliaments for the very Kingdoms safety and welfare without the peoples election In the 43 year of K. Hen. 3. his reign k Mat. Paris p. 952. 953. Speed p. 636. Daniel p. 178. The Barons of England entred into a solemn Oath of Association upon the Evangelist to be faithful and diligent to reform the Kingdom of England hitherto by the counsel of wicked persons overmuch disordered and eff ectually to expel the Rebels and disturbers of the same which Oath they made Richard Earl of Cornwall to take as wel as others In these Barons wars for the Subjects Liberties many hundred Lords and Barons spent both their blood lives and estates and among others Simon Mulford Earl of Leicester the greatest Pillar of the Barons slain in the batail of Eusham of whoâ— l In his Continuation of Mat. Paris p. 968. Daniel p. 178. Râ—shing â—r thus writes Thus this magnificent Earl Simon ended his daies who not only bestowed his estate but his person and life also for relief of oppression of the poor for the asserting of Justice and the Right of the Realm In the 3 4 14 15. of K. Edw. 2. his raign the Barons were the chief Sticklers against Gaveston and the
the said Earle ought to make fine and ransome at the will of the King Whereupon the said Earle most humbly thanked our Lord the King and the sayd Lords his Peers of Parliament FOR THEIR RIGHTFULL JUDGEMENT and the Commoners for their good affectious and diligence used and shewen in this behalfe And the said Earle further prayed the King that in assurance of these matters to remove all jealousies and evill suspitions that he might be sworn a new in the presence of the King the Lords and Commons in Parliament and the said Earle tooke an Oath upon the Crosier of the Archbishop of Canterbury to be a faithfull and loyall lige to our Lord the King the Prince his sonne and to the heires of his body inheritable to the Crown according to the Lawes of England Whereupon the King out of his grace pardoned him his fine and rausome for the trespas aforesaid After which num 17. the Lords spirituall and temporall humbly thanked the King sitting in his royall Throne in the white Chamber for his grace and pardon to the said Earle of his fine and ransome and likewise the Commons thanked THE LORDS SPIRITUALL and TEMPORALL FOR THE GOOD and JUST JUDGEMENT THEY HAD GIVEN AS PEERS OF PARLIAMENT TO THE SAID EARLE From this memorable record I shall observe First that though this Declaration of this Earles case was made by his Petition in the presence of the King Lords and Commons in Parliament according to the Statnte of 25. E. 3. yet the Lords only by Protestation in presence of the King and Commons claimed to be THE SOLE JUDGES OF IT as Peers of Parliament and belonging to them OF RIGHT Sâ—condly That this claime of theirs in this case was acknowledged and submitted to both by the King and Commons and thereupon the Lords only after serious consideration of the case and Statutes whereon it depended gave the definitive sentence and judgement in this case that it was neither Treason nor Felony but Trespas only c. Thirdly That the Earle thanked the King only for his grace the Lords FOR THEIR JUST JUDGEMENT and the Commons only for their good hearts and diligence having no share in the judgement though given by the Lords both in the Kings and their presence and that the Commons themselves returned speciall thanks to the Lords spirituall and temporall on Parliament for their good and just judgement Fourthly That this judgement of the Lords only was finall and conclusive both to the King and Commons who aquiesced in it All that can be objected to evade this President Object is that this Judgement was given in case of a Peer wherein the Lords only are the Judges by Magna Charta c. 29. but not of a Commoner which is the question I answer Answ that though this judgement of theirs was in case only of an Earle who was a Peer triable * See Cooke 2. Inslit on Maâ—na Charta c. 29. only by his Peers yet the King Lords in this Parliament the very same day gave Judgement of High Treason against Henry and Thomw Peircy one of them no Peer and OTHERS who were in their companie who were but Commoners and no Peers for levying warre against the King and that without the Commons as is evident by the Parliament Roll of 5. H. 4. nu 15. Et anxy mesme le vendreay AIVGGES PAR LE ROY ET SEIGNEIURS EN PARLEMENT que levier de guerre fait per les ditz Mounsieur Henry Mounsieur Thomas furont tenuz pur treason ceo si bien de eux mesmes come DE AUTERS qui fueront en lour compaigne au temps de dit lever which quite takes off this Objection Seâ— Mr. Prynnes Doome of Cowardice and Treacherie p. 2. 3. 4. 5. c. where these records are cited at large verbatim To put all out of question I shall instance in some few ancient prefidents more which are full and punctuall In the Parliament of 1. R. 2. num 38. 39. 40. The Commons prayed that all those Captaines who had rendred or lost Castles or Townes through default might be put to answer it in this Parliament and severely punished according to their deserts BY AWARD or Judgement OF THE LORDS and BARONS to eschew the evill examples they had given to other Governours of Townes and Castles Whereupon Sir Alexander de Buxton Constable of the Tower was commanded to bring BEFORE THE LORDS IN PARLIAMENT William de Weston and Lord of Gomynes both of them Commoners on Friday the 27. of November to answer such Articles as should be surmised against them on the Kings behalfe Being brought BEFORE THE LORDS in full Parliament they were severally articled against at the command of THE LORDS by Sir Richard le Scrop Knight Steward of the Kings House and their severall Articles and answers to them in writing being read before THE LORDS Which done the Constable was commanded to bring them againe before THE LORDS on Saturday next ensuing being the 20. of November on which day it was shewed unto them severally by the said Steward by THE LORDS COMMAND That THE LORDS OF THE PARLIAMENT whose names are particularly mentioned in the Roll had met together and considered of their respective answers and that IT SEEMED TO THE LORDS AFORESAID that the said William had delivered up the Castle of Outherwycke to the Kings enemies without any duresse or want of victuals contrary to his alleagiance and undertaking safely to keep it and therefore THE LORDS ABOVE NAMED SITTING IN FUL PARLIAMENT ADJVDGE you TO DEATH THAT you SHAL BE DRAWN and HANGED But because our Lord the King is not informed of the manner of the Judgement the exâ—cution of it shall be respited till the King be thereof inâ—ormed Aâ—ter which Judgemeâ—t given it was shewed to the said John Lord of Gomynes by the 〈◊〉 Steward how the said LORDS had assembled and considered of his answer and THAT â—â—â—â—â—EEMED TO THE LORD sitting in full Parliament that without duresse or default of victualls or other necessaries for the defence of the Town or Castle of Arde and without the Kings command hee had evilly delivered and â—urrendred them to the Kings Enemies by his own default against all apparance of right or reason against his undertaking safely to keep the same Wherefore THE LORDS aforesaid here in full Parliament ADJUDE YOU TO DEATH And because you are a Gentleman and a Baronet and have served the Kings Grandfather in his Warrs and are no Leigeâ—man of our Lord the King you shall be beheaded without having OTHER JUDGEMENT And because that our Lord the King is not yet informed of the manner of this Judgement the execution thereof shall be put in respite untill our Lord the King be informed thereof Loe here two expresse Judgements given in Parliament by the Lords alone without King or Commons in case of Treason even against Commoners themselves And an expresse acknowledgement of the Commons of the Lords
right to award Judgement in these cases without the King or them then which a fuller and clearer proofe cannot be desired In the self-same Parliament 1. R. â— num 41 42 43. Dame Alice Piers was brought before THE LORDS and charged by Sir Richard le Scrope with sundry misdemeanors which she denied hereupon divers Witnesses were examined against her Whereupon JVDGEMENT WAS GIVEN BY THE LORDS AGAINST HER that she should be banished and forfeit all her lands goods and tenements whatsoevèr To this Judgement neither King nor Commons were parties but the Lords only To these I might adde the cases of c See the doom of 〈◊〉 and treachery 〈◊〉 14 15. where the record is transcribed Sir William de Eleuham Sir Thomas Trivet Sir Henry de Ferriers and Sir William Farnden Knights and Robert Fitz Ralph Esquire Rot. Parl. 7. R. 2. num 24. sentenced and condemned by judgement of the Lords in Parliament pronounced by the Chancellour for selling the Castle of Burbugh with the armes and ammâ—nition in it to the Kings enemies without the Kings license 21. R. 2. Parl. Rot. Plac. Coronae num 27. where Sir Robert Pleasington is adjudged a Traytor after his death by the King by â—SSENT OF THE LORDS and num 15. 16. Sir Thomas Mortimers case num 17. Sir John Cobhams case * 31. H. 6. n. 45. 64. 65. â— 3. n. 16. to â—8 and num 28. Henry Bonoits case condemned in like manner of treason by the Lords with hundreds of Presidents more I shall only cite three more at large which are punctuall In the Parliament of 8. R. 2. n. 12. Walter Sybell of London was arrested and brought into the Parliament before the Lords at the suit of Robert de Veer Earl of Oxford for slandering him to the Duke of Lancaster and other Nobles for maintenance Walter denied not but that he said that certain there named recovered against him the said Walter and that by maintenance of the said Earl as he thought The Earl there present protested himself to be innocent and put himself upon the triall Walter thereupon was committed to Prison by the Lords and the next day he submitted himself and desired the Lords to be a mean for him saying he could not accuse him whereupon THE LORDS CONVICTED and FINED HIM FIVE HVNDRED MARKS TO THE SAID EARL for the which and for his fine and ransome he was committed to prison BY THE LORDS A direct case in point In the second Parliament in 7. R. 2. num 13. to 19. Iohn Cavendish a Fishmonger of London accused Michael de la Pool Knight Lord Chaâ—cellour of England first before the Commons and afterward before the Lords for bribery and injustice and that he entereâ—â—â—nto a Bond of x. l. to Iohn Ottard a Clerk to the said Chancellour which he was to give for his good successe in the businesse in part of payment wâ—â—â—eof he brâ—ught Herring and Sturgeon to Ottard and ye was delayed aâ—d could have no justice at the Chancellours hâ—nds and upon hearing he cause and examining wiâ—â— oâ—fes upon Oath before THE LORDS the Chancellour was cleared The Chancellour thereupon required reparation for so great a slander the Lords being then troubled with other weighty matters let the Fish-monger to Bail and referred the matter to be ordered by the Judges who upon hearing the whole matter condemned Cavendish in three thousand marks for his slanderous complaint against the said Chancellour and adjudged him to prison till he had paid the same to the Chancellour and made fine and ransome to the King also which the Lords confirmed In the Parliament of 15. R. 2. nu 21. Iohn Stradwell of Begsteed in the County of Sussex was committed to the fleet by JVDGEMENT OF THE LORDS there to remain during the Kings pleasure for that he informed the Parliament that the Archbishop of Canterbury had excommunicated him and his neighbours wrongfully for a temporall cause appertaining to the Crown and Common Law whâ—ch was ADIVDGED BY THE LORDS upon examination and hearing to BE VNTRVE These three eminent Presidents to which many more might be added of the Lords fining and imprisoning meere Commons only for slandering Peeres of Parliament even by false accusations against them in Parliament by way of complaint will â—â—stify the Lords proceedings against Lilburn and Ovâ—rton for their professed Libells both against their Persons and Jurisdictions too To proceed to latter times in Parliaments of 18. and 21. Jacobi and 3. Car. not only the Lord * Cook 4. Instit p. 23. Chancellour Bacon and the Earl of Middlesex Lord Treasurer upon complaint of the Commons were censured and judged by the Lords alone but likewise Sir Giles Mompesson Sir Iohn Michell and Dr Manwering all Commoners JUDICIALLY SENTENCED Doctor Pocklinton and Doctor Bray even for erroneous Books and Sermons were sentenced this Parliament by the Lords alone since these Master Clement Walker Esquire was imprisoned in the Tower and fined by the Lords for some words pretended to be spoken against the Lord Say and within these few moneths onâ— Morrice and foure or five more of his confederates were censured fined and imprâ—soned by the Lords alone for forging an Act of Parliament upon Sir Adam Littletons complaint with all the Commons privity or consents and above one hundred Commoner more have been imprisoned by them or fined this very Session of Parliament for breach of Priviledge contempts or misdemeanours by the Lords alone without the Commons yet no demurrer nor exceptions were taken by them or the Commons to their Iurisdiction who applauded this their Justice in some of these cases From all these cleare confessions of the Commons themselves in Parliament and punctuall presidents in print in former late Parliaments and in this now sitting it is undeniable That the King and Lords joyntly and the Lords severally without the King have an indubitable right of Judicature without the Commonâ— vested in them not only of Peers themselves but likewise of Câ—mmoners in all extraordinary cases of Treason Felony Trespasse and other Misdemeanors triable only in Parliament which hath been constantly acknowledged practised and submitted to without dispute much more then have they such a just and rightfull power in case of breach of their owne priviledges of d Cooke 4 Instit p. 15. which none are or can be Judges but themselves alone And to deny them such a power is to make the Highest Court of Iudicature in the Realme inferiour to the Kings Bench and all other Courts of Justice who have power to judge and try the persons and causes of Commoners and to commit and fine them for contempts and breaches of Priviledges as our e See Brooke and Ashes Tables Tit. Contempts Fines pur Contempt Imprisonment Law bookes resolve and every mans experience can testifie The Lords right of Judicature being thus fully evicted against the false and ignorant pretences of illiterate Sectaries altogether unacquainted with our Histories and Records of Parliament
awarded him to the custody of the Marshall and to make fine and ransome at the Kings pleasure Whereupon the Commons REQUIRED by way of petition that he might lose all his Offices and no longer be of the Kings Councell which the King granted The Commons not joyning at all with the Lords in his judgement neither could they so joyne he being a Peer And for the Lord Nevill in that Parliament num 33. he was only accused not judged by the Commons Sixthly The case of 2. H. 5. rot Parl. num 15. that Error is there assigned that the Lords gave judgement without Petition or assent of the Commons is a grosse mistake For the record only recites That Thomas Mountague Earle of Salisbury Sonne and Heire of Iohn Mountague Earle of Salisbury exhibited his petition in Parliament to reverse a judgement given against his said father in the Parliament at Westminster in the second year of King Henry the fourth Whereupon he exhibited certaine reversals of Judgements given in Parliament as making on his behalfe to the Lords consideration reversed for some errors assigned in those jadgements to wit one judgement given against Thomas heretofore Earle of Lancaster before King Edward the second at Pomfract the monday before the feast of the Annuntiation in the fifteenth yeare of his reigne and another Judgement against Roger de Mortymer late Earle of March in the Parliament of King Edward the third the Monday after the Feast of St. Katherine in the fourth yeare of his reigne at Westminster Which judgements being distinctly and openly read and fully understood Jo seemed TO THE KING and LORDS that the case of the death and execution of the said John late Earle of Sarum and of the judgement aforesaid against him given is not nor was like to the case of the executing of the said Thomas heretofore Earle of Lancaster nor to the case of the killing of Roger Earle of March nor to any judgement given against the said Thomas and Roger as aforesaid but that the judgement and declaration had and given against the said Iohn late Earle of Sarum WERE A GOOD JUST and LEGALL DECLARATION and JUDGEMENT Per quod CONSIDERATUM FUIT in praesenti Parliamento PER PRAEDICTOS DOMINOS tunc ibidem existentes DE ASSINSU dicti Domini nostri Regis quod praefatus nunc COMES Sarum NIHIL CAPIAT PER PETITIONEM aut prosecutionem suam praedictam Et ulterius TAM DOMINI SPIRITUALES QUAM TEMPORALE supradicti JUDICIUMET DECLARATIONEM praedicta versus dictum Ioannem quondam Comitem Sarum ut praemâ—ttitur habita five reddita DE ASSENSU IPSIUS DOMINI REGIS AFFIRMARUNT FORE ET ESSE BONA JUSTA ET REGALIA et ea pro hujusmodi EX ABUNDANTI DISCREVERUNT ADJUDICARUNT TUNC IBIDEM This is all that is mentioned in this Parliament Roll concerning this businesse It appeares by the Parliament Roll of 2 H. 4. num 30. That Thomas Holland Earl of Kent Iohn Holland Earle of huntingdoâ— Iohn Mountagne Earle of Sarum Thomas Lord de Dispencer and Ralph omely Knight were impeached of high treason before the King and Lords in Parliament for levying actuall Warre against the King to destroy the King and his Subjects and for this taken and beheade and hereupon ALL â—â—E LORDS TEMPORALL BEING IN PARLIAMENT BY ASSENT OF THE KING DECLARED AND ADJVDGED all the said persons TRAITORS for leavying Warre against the King and that as Traytors they should forfeit all the lands they had in fee simple the 5 day of Jannary the first yeare of the raigne of the King or after according to the Law of the Land with all their goods and chattells notwithstanding they were slaine upon the said levying of Warre without processe of Law So this Record To reverse this judgement was this Petition of Thomas Earle oâ— Sarisbury in 2. H. 5. exhibited without the errour assigned as appeares by the Parâ—iament roll but if it were that the Lords only gave Judgement without Petition or assent of the Commons as Sir Edward Cooke imagins 〈◊〉 the King and Lords who upon solemned bate over-ruled the errour abuses and Petitions and found this judgâ—ment and Declaration of 2. H. 4. given by the Lords alone with the Kings assent without the Commons TO BE GOOD JVST and LEGALL as they did ex abundâ—nti is a most undeniable proofe of the King and Lords sole right of JVDGEING and DECLARING HIGH TREASON in Parliament without the Commons as well in case of Commoners as Lords Ralph Lomely being but a Commoner and Knight though the rest were Peers and yet all joyntly adjudged Traytors and declared such only by the King and Lords without the Commons and the Judgement assured to be good by the Commons who in the Parliament of 13. H. 4. num 19. Petitioned the Iohn Lomley might be restored by act of Parliament and made capable to inherit his fathers lands thus attainted to which the King by ASSENT OF THE LORDS SPIRITVALL and TEMPORALL consented Seventhly the Parliament Roll of 28. H. 6. num 18. c. containes onely an Impeachment of High Treason against the King and other great misdemeanors against the Kingdome and wrongs to particular persons comprised by way of Articles in two distinct Bills brought up by the Commons and presented by William Tresham their Speaker to the King in the Lords House the 7. day of February against William de la Pole Duke of Suffolke to which they desired the Duke might give in his Answer by a certaine day which he did absolutly denying the Treason against the King and denying and excusing himselfe of the rest without putting himselfe upon the Tryall of his Peeres The Chiefe Iustice thereupon the 14. day of March by the Kings command asked this Question of the LORDS WHAT ADVISE THEY WOULD GIVE THE KING what is to doe futrher 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 Spirituall and Temporall then being in Towne being 42. in all into his Inner Chamber within his Palace of Westminster where when they were all assembled hee then sent for the Duke thither who comming into the Kings presence kneeled downe and continued kneeling till the Chancellour of England had delivered the Kings command to him and demanded of him what he said to the Commons Articles not having put himselfe upon his Peerage Whereupon the Duke denyed all the Articles touching the Kings Person and state of the Realme as false and scandalous And so not departing from his said Answers submitted himselfe wholly to the Kings Rule and Governance without putting himselfe upon his Peerage Where thus the Chancellour told him That as touching the great and horrible things contained in the first Bill the King holdeth him neither declared nor charged And as touching the second Bill containing misprisons which are not criminall the King by force of his submission by his owne advise 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 comming hee should absent himselfe out of the Kingdome of England and all other his Dominions in France or elsewhere for five yeares space and that hee nor no man for him should shew or waite any malice nor hate to any person of what degree soever of the Commons in the Parliament in no manner of wise for any thing done to him in this Parliament or elsewhere And forthwith Viscount Peamont in behalfe of the said LORDS both Spirituall and Temporall and BY THEIR ADVICE ASSENT AND DESIRE said and declared to the Kings Highnesse that this that so was decreed and done by his Excellencie concerning the person of the said Duke PROCEEDED NOT BY THâ—IR ADVICE AND COVNSELS but was done by the Kings owne demeanour and rule Wherefore they besought the King that this their saying MIGHT BE ENACTED IN THE PARLIAMENT ROLL FOR THEIR MORE DECLARATION HEREAFTER WITH THIS PROTESTATION THAT IT SHOVLD NOT BE NOR TVRNE IN PREJVDICE NOR DEROGATION OF THEM THEIR HEYRS NE OF THEIR SVCCESSOVRS IN TIME COMMING but that they may HAVE AND INJOY THEIR LIBERTY AS THEY OR ANY OF THEIR ANCESTORS PREDECESSORS HAD AND ENIOYED BEFORE THIS TIME This is the sum of this large record which makes nothing to the purpose for which it is cited that it is errour when both Houses joyne not in â—udgement For first here is nothing but an impeachment onely by the Commons of a Peere who ought to be tryed judged by his Peerage not by Commoners Secondly there was no judgement given in Parliament in this case but only a private Award made by the King out of the Parliament House in his owne Chamber in presence of the Lords Thirdly the Lords entred a speciall protestation against it as not made by their advice or consent Fourthly they enâ—er a speciall claime in the Parliament Roll for the preservation of their Right and Freedome of Peerage for hereafter both of being tryed and judged onely by their Peeres in Parliament and so an expresse resolution that they in Parliament are and ought to be Iudges not the Commons The last Records I have cited at large lest Sir Edward Cookes briefe quotation and mis-recitall of them should deceive the credulous or ignorant Reader Eighthly the cases of Sir Giles Monpesson Sir John Michell Viscount S. Alban and the Earle of Middlesex whom the Commons onely impeached and the Lords alone without the Commons votes or presence judged and sentenced are direct proofes that the power of Iudicature and Censure as well of impeached Commoners as Lords resides onely in the Lords House the Commons being but generall Inquisitors to search out and present both Lords and Commoners publike offences to the Lords to whom they transmit the charge and witnesses the Lords the onely Iudges to heare and determine the charge examine the witnesses upon oath and passe and record the sentence and see it executed and no more Iudges in the Parliament then the grand enquest are Iudges at the Assizes or Sessions The second and principall objection insisted upon by that Ignoramuâ— Object 2. Lilburne and his disciples the Levellers is the Statute of Magna Charta chap. 29. That no Free man shall be imprisoned outlawed exiled or any other way destroyed Nor we shall not passe upon him nor condemne him but BY THE LAWFVLL IVDGMENT OF HIS PEERES or BY THE LAW OF THE LAND Whence thus they argue The Lords in Parliament are not Commoners Peers but the Commons only therefore they cannot be judged in Parliament by the Lords but by the Commons alone and if Peers there judge Commoners it is a tyranny and usurpation even against Magna Charta it selfe though it be in case of priviledge To take away this grand seeming objection Answ and give it a satisfactory answer I say First in generall that there is scarce one Parliament ever since Magna Charta was first confirmed but the Lords have sentenced and given judgment against some Commoners capitally or penally in body or purse or both without the Commons and did so doubtlesse before Magna Charta was made as I have already manifested yet never did the Commons in any one of those Parliaments till this present complain of it as a violation of Magna Charta or a tyrannicall usurpation as Lilburne and Overton stile it but acknowledged it as a just right in the Lords even in 3. Caroli it selfe when the Petition of Right was passed in the Lords Iudgment and Sentence against Doctor Manwaring a Commoner impeached by the Commons And therefore for this one Ignoramus alone against the judgements of all the Commons in Parliament in all ages to averre this a breach of Magna Charta for imprisoning and fining him for the highest affront and breach of priviledge over offered to any Parliament is the extremity of ignorance malice and singularity Secondly I answer that the Statute of Magna Charta extendeth not to nor was ever intended of the high Court of Parliaments Iudgements and Proceedings but onely to the proceedings and Iudgements in the Kings great Courts of Iustice at Westminster Hall the Exchequer his Privy Councell and other inferiour Courts held before Judges Iustices of Assize and other Officers as is evident by comparing this objected Chapter with c. 11 12 13 14 18. 28 â—0 3â— 37. by the Statutes of 25. E. 3. Stat. 5. c. 4. 28. E. 3. c. 3. 37. E. 3. â— 18. 38. E. 3. c. 9. 42. E. 3. c. 3. 17. â—2 c. 6. and the Petition of Right it selfe 3. Caroli which so expound it there being never any complaint against the Parliament it selfe or House of Peeres in any age for breach of Magna Charta in censuring or imprisoning Commoners till now Therefore this misapplying of this Law to the Parliament and House of Peers is a grosse oversight Thirdly the very literall sence of this Law is much mistaken by the Objectors For that any Freeman of England is a Peer to another Freeman quatenus such a one within this Law though of an higher degree in point of honour dignity office and estate and this clause * 〈…〉 No Freeman shall be imprisoned and but by the lawfull judgement of his Peers extends onely to exclude villaines and those who are not Freeholders from being Iudges of Freemen and Freeholders in tryalls by Iury whence the Writs to the Sheriffes to summon Iurors require them alwayes to returne Liberos Legales homines not to exclude Lords or Peeres who are Freemen in the higest degree to be Iudges of Commoners who are Freemen So as the Argument from the true meaning of this Law can be but this villaines and those who are no Freemen are not to be Iudges or impannelled in Iuries to condemne Freemen because they are not their Peeres nor Freemen as well as they Therefore