of them hath its proper and peculiar jurisdiction The Chancery for Equity the Kings Bench for Pleas of the Crowne the Common pleas for reall actions and other matters of the Law The Exchequer for the Kings Revenues And every one of these Courts is circumscribed within its own bounds The Chancery unlesse it be in some particular cases warranted by custome hath not power to determine questions of Law nor the other three Courts matter of Equity The Common pleas not to intermeddle with the Pleas of the Crowne nor the Kings Bench unlesse occasioned by breach of the Kings peace with questions concerning title of Lands And none of them hath authority to extend beyond its bounds in any one particular All which is made good by authority and reason For authority it is resolved in the bookes of the Law that if the Judges of the Common pleas in an Appeale or Indictment for murder felony or other capitall crime condemne any person their proceedings are voide as done coram non Judice That person so condemned although guilty of the fact in the judgement of Law is not attainted nor his blood corrupted he forfeits not his estate and if executed although by the command of the Judges of that Court both Judge and executioner are guilty of felony and punishable as if done without that command If the Lord of a Leete hold his Court or the Sheriff his Turne at other times then custome doth warrant Or the Court of Marshalsey assume jurisdiction not made good by use their proceedings are void In all which cases the Officers or Ministers of those Courts are punishable for executing the commands of the Iudges thereof wherein the Law takes this difference viz. When a Court assumes power to determine that which it hath not Commission to determine and when it hath jurisdiction of the cause yet proceeds inverso ordine in the first as in the cases aforesaid The Minister is not excused or justified by the warrant of the Court In the latter the warrant or processe of the Court is a legall justification as thus If the Court of Common Pleas hold Plea without originall or award processe of Capias against a Peere and the like in these cases although the proceedings be illegall yet in regard the Court hath jurisdiction to determine the cause if it were regularly brought before them the processe or warrant of the Court is a good justification for the Minister thereof And this rule holds with all other Courts Assemblies and persons when they act or doe such things as they have not Commission for their proceedings are void So that the Laws of England admits not of Iudges but persons qualified to performe that office yet ability by it selfe is no Commission to make a Iudge The Judges of the Common Pleas are as learned in the Law and as able for their knowledge to determine Pleas of the Crowne as the Judges of the Kings bench but they have not the same authority The Court of Common Pleas hath not used it and consequently it is out of their Commission And that no Court ought to extend its owne bounds is made good by reason For if any Person Court or Assembly takes upon them in any one thing to execute that which their Commission extends not to by the same reason they may assume it in another and so in infinitum upon which it followeth that the power of that Court Person or Assembly is become boundlesse And if one Court Person or Assembly may inlarge its bounds the like reason holds with every Court Person and Assembly in the Kingdome and so a Parity introduced and consequently the whole Government subverted and destroyed In the next place it is considerable to know what Commission the Parliament the two Houses or either of them hath therein And first for the Commons house That Assembly hath no Commission from the King nor by Act of Parliament to Judge the Law and for Prescription they faile in all the foresaid three particulars for they cannot challenge any thing time out of mind The Assembly it self had its beginning after the Raign of K. Ric. 1. Secondly admit them to have been time out of mind they fail in the use for untill this Parliament they never executed or claimed any such thing Thirdly admit them to have been time out of mind and constantly to have used the power of Judicature yet it ought to be disallowed because not reasonable it is repugnant to the Rules of Law and justice that persons not fitly qualified should have power of Judicature By the constitutions of England controversies are decided thus The Plaintif exhibits his complaint in a Court of Justice and that in the Latin tongue The Defendant answereth in the same Court and Language out of which pleading the case ariseth which sometimes is questio facti and sometimes questio Juris If it be facti it is tried by a Jury sworn by authority of that Court where the suit depends and that cannot be the Members of the Commons house for besides the difficulty of the Language those Members cannot give an Oath and if it be matter of law the sworne Judge is to determine it but they are not sworn to doe justice And for the Lords house it is granted that in some things which custome and use hath made good the Members of that Assembly have power of Judicature for although that House as now it is formed and setled hath not been so auntient as to make a Prescription yet the Prelats the Peers and the Judges time out of mind have been frequently called together by the Kings of England and consulted with concerning making of Laws and other the affaires of the Common-wealth And amongst other things the Lords depending therein on the advice of the Judges have so auntiently as the beginning thereof cannot be made appear by licerse of the King upon Writs of Error reversed erronious Judgements given in the Kings bench But as the Lords have this authority by Prescription so they are excluded from all other power of judicature but that which custome and use doth warrant for Prescription is all the Commission they have Neither Grant from the King nor Act of Parliament they have for a Court of justice Now to give power to the Lords house or to the Commons house to inlarge their Commission or Jurisdiction the same inconveniences would thereupon ensue as by suffering other Courts to doe the like if the Members of the Commons house should at this day take upon them to give an Oath and this legally intitle them to it by the same reason they might as now the present Members of that Assembly in effect doth without King or Lords assume the whole Government And for the two Houses jointly they are not a Court of judicature they have therein no Commission at all neither from the King nor by Act of Parliament nor by Prescription And for the Parliament that is the King
and the two Houses that body cannot properly be said a Court of Justice The Office of a Judge is upon a Question depending before him to declare what the Law is but the office of the Parliament is only to make new laws By this it appears that neither the Members of the Lords house nor of the Commons house are qualified to be Judges of the Law nor have they either jointly or severally Commission for that purpose And lastly admit every Member of either house in Learning sufficiently qualified to make a Judge their composure considered they are not capable jointly to perform that Office they being two distinct bodies their proceedings severall and distinct it cannot be expected but they shall frequently differ in Opinion and judgment therefore were they never so learned should the King grant unto them power of judicature or should they have that authority given them by an Act of Parliament the Lawes of England would judge both that Grant and Statute absolutely void as a thing most incongruous against sense and reason Upon which it followeth that if the Lords House or the Commons house or both Houses jointly have or shall condemne any person for Treason Felony or other capitall offence try any title of Land tax the people with payments of money seise or confiscate the Subjects estates or the like be it by Order Ordinance or any other way all such proceedings are void done coram non Judice and consequently both the Members and all persons executing their commands therein are by the Lawes of England punishable as Murderers Felons or other transgressours because done without warrant or authority And how long soever they shall continue this power and how frequently soever it is used that alters not the case the Law is still the same it was Yet herein I doe not abridge the power and authority of the Peers of the Realme It is true when the King hath constituted a Lord high Steward and consented to the triall of a Peere for his life for a fact committed against the known Law such a Peere not only may but ought the Lords observing the rules of law to be tried by the Lords his Peers But there is no colour for the Lords or for the Commons or for both Houses jointly although the King should give way thereunto to try or judge any Commoner Every common person ought to be tried by his Peers too that is by a Jury of the Commons and that Iury by the Lawes of England ought to be of that County and neare that place where the fact is committed It is a Rule in our Law that in capitall offences Vbi quis delinquit ibi punietur persons dwelling near the place are most likely to have cognizance of the fact Besides by our law every free-born Subject of this Nation hath at his arraignment power and liberty to challenge Iurors impannelled for his triall But all such liberties are taken away by this usurpation of the Members Thus it appears that the Judges of every Court of Justice so far as their Commission extends and no other persons are Judges of Law But the Judges of no one Court are those unto whom the people are bound lastly to submit themselves for every Court of Justice in some respect is inferiour to another Court or power unto which appeales lie as in the case of a Writ of error and the like unlesse it be in the Exchequer Chamber when the cause regularly depends before the Judges of the Kings Bench the Common Pleas and the Barons of the Exchequer into which Chamber things of great weight and difficulty concerning matter of Law are usually transmitted And being there judicially determined from that sentence t◠conceive no appeale lies to any other Court by Writ of error That is the sentence and judgement of the Judges of the Realme yet from that judgement some persons are of opinion a Writ of errour lieth before the Lords in the upper House of Parliament But upon consideration had of the reason of the Law concerning the proceedings in Writs of error brought there I conceive it were to little purpose to permit any such appeale unto the Lords upon judgements given in the Exchequer Chamber before all the Judges of the Realme The power of the Lords House to reverse erronious judgements I conceive began thus The Court of the Kings Bench is the highest Court of Judicature wherein any suite of Law can legally and regularly be brought and therefore their proceedings not to be examined by any other ordinary Court of Justice every one of them being inferiour to it But the Judges of the Kings Bench are as subject to erre as the Judges of other Courts Therefore as requisite to have their proceedings examined Now in regard the Judges of the Realme were at all times at least assistant to the Lords House it was proper enough to have the errors of the Kings Bench reversed in that place And having had its beginning thus constant use and custome hath Legally intituled them unto it Therefore although peradventure it may have happened that some few particular Writs of errour have been brought in the Lords House upon judgements given in some other Courts I conceive the prescription which is all the Commission they have lieth only for the Kings Bench. And I am the more confirmed therein because the Law bookes mentioning the authority of the Lords House in reversing judgements do generally instance in the Kings Bench not naming other Courts Besides as the Lords House hath this jurisdiction by prescription the same use and custome requires these circumstances 1. That the Kings consent to prosecute a Writ of error be obtained because every judgement in the Kings Bench doth immediately concerne the King the jurisdiction of that Court being properly Pleas of the Crowne 2. That the Lords after the cause is brought before them proceed by the advice of the Judges which is indeed the essentiall part of the prescription To have a profession of Law Courts of judicature erected persons learned in that profession appointed Judges thereof it were most preposterous to have the proceedings of these Judges even in the most difficult points of the Law examined reversed and controlled by persons ignorant in that profession By the constitutions of England no man is capable to be a Judge unlesse he have understanding in the Law to performe that office Therefore shall the King grant to one who is most learned a Judges place to him and his heires as to his heires it were void and the same it were if such a grant were made by Act of Parliament And so consequently if the Lords should prescribe that time out of mind they and their predecessours Lords of the Parliament in Parliament time have without mentioning it to be with the advise and assistance of the Judges reversed erronious Iudgements given in the Kings Bench or in any other Court of Iustice it 〈◊〉 〈◊〉 be disallowed judged as an evil use
not consonant to the rules of Law or reason it were without any disparagement to their Lordships all one if not better when the question is whether the Iudges of the Court of Kings Bench erred in judgement to have it determined by casting of lots for whether right or wrong judgment were given if the Lords determine it it is but chance whether they pursue the Law or not And if by lot expence of money is saved Therefore cleare it is to examine a judgement given in the Exchequer Chamber by a writ of error brought in the Lords House is in effect for the same persons to judge whether themselves erred or not and so whether the Lords have or have not this power the Iudges of the Realme are still depended upon And in case the King and the two Houses make an Act of Parliament concerning the same thing when that Act is passed from them as before appears an appeale lieth by an action or suite at Law unto the Judges who have power to determine whether that Statute be binding or void and therefore clear and manifest it is that in matters of Law the last and finall sentence is the Iudges of the Realme But me thinks for a Nation which hath been governed so many hundreds of years by a known Law and under it so flourishing a people as the Subjects of England have been and yet not to be agreed who are the finall Judges of the Law is so grosse a thing as that all forraigne Nations hearing of it cannot but accompt us men to have lost our wits In every constitution it is oftentimes difficult even amongst the learned in the profession in some particular questions arising to determine what the Law is But not to know what persons have Authority to decide those questions is most ridiculous The Judges of the Law ought to be so conspicuous as that all persons even from the most learned unto the most ignorant may equally alike discerne the men Which considered I conceive it necessary not only for the information of the vulgar people of England which have herein been grosly deceived but for the Vindication and Honour of our own Nation and the Law established so farre to digresse as in a word to shew how this fond question was raised and controverted in this Kingdome which was thus This Nation is governed by a known Law that Law â—â—dgeth the King to be our onely Supream Governour gives power to the King with the assent of the two Houses and no other to alter that Law and to make new Lawes And to the Judges of the Realme it ascribes the power finally to declare the Law Now such whose aime is to usurp Soveraignty or to swallow the wealth of the Nation cannot hope to effect their ends by submitting to the known Law That were to commit a crime immediately submit themselves to the block Therefore they must either deceive the people by mis-informing them what the Law is else by strong hand to enforce upon them a new Law for their own purpose Now that the Members aime was at no lesse then all is too too apparent But at the beginning of these distractions they were not in a condition to force the people Therefore their Iudgements must be deceived Hereupon the Plot was that the Members in the opinion of the people should gaine the reputation of being the finall Judge of the Law which was effected thus The people by reason of some good Lawes obtained of the King by the Members procurement were inclinable to believe whatever they propounded Then the Members Voted Thus viz. That when the Lords and Commons declare what the Law of the Land is it is a high breach of Priviledge of Parliament to question it This being published and the people by Incendiaries spread throughout the Kingdome for that purpose by false Calumnies cast upon the King being grosly abused the Members work was in a manner finished Then they took upon them the power of the Militia declared that the Soveraigne power was not in the Kings Person but virtually in them And from thence what made for their advantage how grosse soever did but the Members declare it for Law and good enough Thus the Iustice seate even by a sleight became both disputed and usurped But now the Scales are turned The peoples understandings are enlightned they see how grosly they were misled They finde that whilst the Judges of the Realme declared the Law both King and Subject were preserved in their Persons lives and fortunes That by this usurpation the known Law is subverted and consequently that protection vanished But as the people have changed their opinions so have the Members framed a new Argument They have left the Word and betaken themselves to the Sword They having Armies to back them their will is now the Law and resolve whilst they can by force to hold it Thus we are fallen into a gulf of misery whereas had the people been but half so carefull to have found out the Truth as they were industrious to effect their owne destruction these calamities had been prevented When the difference first hapned between the King and the Members had not the people leaped into their own ruine but taken the least consideration thereof had they bethought themselves how they were to be rightly informed what the Law was they must have resolved that as we had a Law consequently there must so long have been a Judge of that Law But the Members neither exercised or pretended any such power one minute beyond the foresaid Vote And for Authority to make their pretence good none can be produced but that their own testimony in this their own case and in a thing of no lesse concernment then the gaining of the wealth of the whole Kingdome to their own use and enslaving the people to their owne pleasure Hereupon doubtlesse the people would have concluded that not the Members the Judges of the Realme were the men unto whom all persons were Obliged to submit for matter of Law But it is objected That this is too great a power for the Judges for say they those persons may and doe erre in Judgement and are subject to corruption as in that case of Ship-money Answer It is true the Iudges have erred and it being granted that in the case of Ship-mony they did erre and were corrupt too and that it cannot be expected but they shall againe and againe erre be corrupt yet until we have other Creatures then Men to make choise of for Iudges this Objection ought to be disallowed We finde the Members to be no Gods And for the weight of the businesse concluded to be too great for the Iudges I Answer that that power must be in some To have a Law without a Judge finally to end controversies were worse then to have no Law at all And to have a Law and a Judge of that Law who understands not the profession were a degree worse then
when the Law is only declared by Act of Parliament If the King and the two Houses declare that it is not by the Common Law of England Treason to kill or to attempt to kill the King the Queen or Prince or that it is not felony to steale or the like such declarations are of no effect they ought not they do not they cannot conclude the Judges And as every Statute may be judged by them whether it be binding or void so the meaning of the words thereof must be by the Judges expounded too It is the true sense which is the Law not the bare letter and this exposition is likewise the office of the Judges as is said before For example by a Statute made 1 Eliz. it is enacted that all leases made afterwards by any Bishop of his Church-lands exceeding 21. years or three lives shall to all intents and purposes be judged void and yet it hath been adjudged both in the Kings Bench and in the Common Pleas that a lease for an hundred years is not void against that Bishop himselfe who was lessor wherein the Judges expound the meaning of the Law-makers to be thus that their intent was onely for the benefit of the Successours not to releive any man against his owne Act therefore such leases made after the Statute exceeding twenty one years or three lives are voidable only by the successours if they please and adjudged not void against the lessour himselfe contrary to the expresse words of the Statute And in like manner are other infinite Acts of Parliament expounded by the Judges wherein it is a maxime in Law that their exposition of Statutes ought to be according to the rules of the Common Law by which it appears the Members are not the interpreters for they know not the rules of the Law Besides the Parliament cannot be the finall expounders of Statutes for these reasons 1. It appears before that it is not the bare letter but the true sence and meaning of the words which is the Law And the King and the two Houses cannot declare the meaning of those words but by Act of Parliament they cannot saith our Law otherwise speake what ever they Act or doe in any other way is extrajudiciall if the King and both Houses unanimously deliver an opinion without reducing it to an Act of Parliament concerning the meaning of a former Statute it is of no more nor greater force or effect then for the Judges of a Court of judicature to give their opinions in a point of Law in a case not judicially depending before them such an opinion binds not nor is pleadable in a Court of Justice And besides the absurd inconvenience and the impossibility to have an Act of Parliament to determine every question arising upon Statutes it may so happen as that the King and the two Houses can never give an end to one controversie For example suppose an Act be made to explaine the meaning of former Statute ambiguously penned the words of this Act must have a meaning too and may admit of severall interpretations as well as the former Act did and severall persons as they are therein concerned may differ in the exposition thereof and so irreconcileable as not to be ended without the authority of a Judge and this may fall out upon every Act of explanation upon explanation in infinitum and consequently by that way there cannot to the end of the world be a finall determination of the difference 2. The validity of every Statute and the exposition thereof at the will of every person concerned may regularly be brought before the Judges of the Law but cannot judicially depend before the Parliament For example every Statute is binding or void if binding it concerns the Subject in his person or estate and when it is put in execution the ministers or actors therein may at the will of him interrupted thereby be sued in the Court of Common Pleas or in some other Court of Justice by an action of trespasse by which suite what ever the Act of Parliament is both the validity of the Statute and the meaning of the words thereof is submitted to the Judges of that Court and to their judgement As suppose this case to arise upon the foresaid Statute of 23 H. 6. that one who hath continued Sheriff above one year by vertue of a Writ directed to the Sheriff of the same County doth arrest the body of A. who for this brings his action of trespasse in the Common Pleas in which the Sheriff justifies by vertue of the Writ A. replies pleads the Statute and shewes that the year was ended before the arrest upon which the Sheriff demurs in Law by these pleadings the whole fact is confessed on both sides the Sheriff doth acknowledge his year was out before the arrest and A. confesseth the arrest was by vertue of the Kings Writ directed to the Sheriff and so the question being matter of Law it is to be determined by the Judges of that Court wherein the sole doubt is whether that Statute be binding or void for if binding judgement ought to be given for the plaintife A. because the Statute being good the defendant was not Sheriff after his year ended when he made the arrest and so had no authority if void it ought to be given for the Sheriff for then the Law is not by it altered and so he was Sheriff at the time of the arrest although his year was out Now in this case no man can deny but that the Judges must give judgement else the Court of Common Pleas which were absurd to imagine hath not power to determine an action of trespasse and judgement being given as in this case it ought to be for the Sheriff because it is already resolved and received for a knowne truth that the foresaid Statute binds not the King this duty of the Subject to serve the King in person saith the booke being due by the Law of nature cannot be severed by Act of Parliament it is finall And so if it were enacted that a Member of the Commons House or any other subject by name should not be condemned or punished for murder who afterwards commits the fact for which being arraigned at the Kings Bench bar he pleades the Statute the Judges even against the expresse words and intent of that Act ought to give sentence of death And contrariwise if by Act of Parliament it were enacted that all Pardons for felony to be granted by the King should be judged void after which a subject commits felony obtaines the Kings pardon for it is arraigned at the bar and pleads this pardon it ought to be allowed being duely pleaded and the Justices in such case ought not to condemne but to acquit the prisoner And these judgements as to any appeale to the Parliament are finall they cannot be brought before the King and the two Houses by any suite or action at Law They cannot judicially determine any
therefore such Citizens and Burgesses should be tradesmen which appears both by the foresaid Statute made 1 H. 5. and the words of the Writs of Election By that Statute it is enacted that none shall be elected Citizens or Burgesses but freemen dwellers and Inhabitants in such Cities and Borough Townes And by a Statute made 23 H. 6. It is enacted that none shall be chosen a Knight of the Shire but Knights or notable Esquires or Gentlemen borne and shall be able to be Knights And no man to be such Knight which standeth in the degree of a Yeoman and under And the words of the Writs of Election are these For the Shire Duos Milites gladiis cinctos c. For a City Duos cives c. For a Borough Duos Burgenses c. And so both by Act of Parliament and by the Writ the Intent of the Law is declared to be that for the Shire Gentlemen for Cities and Boroughs Tradesmen are to be elected And the Members who serve for those Corporations are above four times the number of all the rest So that the Laws of England for electing Citizens and Burgesses being observed as they ought to be the far greater part of that Assembly must consist of Tradesmen and persons very unapt to judge the Law Yet more proper for that service for which they were intended then such as are at this present usually chosen Whilst the Statutes and the Laws of the Realme were therein observed we heard not of any tumultuous or disorderly proceedings in that House But of later times and especially since the beginning of King James His Reigne the Borough Townes by procurement of factious persons have more frequently chosen such who were so far from having knowledge in the Trades and Traffick of those Boroughes or being resident or dwelling there as that they never saw the Towne nor was the Burgesse ever seen of any one of his Electors yet contrary to the expresse negative words of the aforesaid Statute and direction of the Writ the Commons House declare those Elections Legall which shewes that these Members are very uncapable to understand the Law else a company of persons who have illegally without any due election by faction as aforesaid packed themselves into that body and accordingly resolved to observe no other Law but their owne will and so however whether learned or unlearned not fit to be Judges of the Realme or finally to declare the Law 2. All the Members of that House as well Knights as Burgesses are elected by the vulgar multitude and therefore were elections made according to the Laws of the Realme Popular elections sometime produce like unto themselves In somuch that it may happen that not one knowing man in the profession of the Law or one person literate shall be returned Member of that Assembly 3. Experience shewes it is most frequent as well for Knights of the Shire as for Burgesses to elect Infants and Children which are by that Assembly approved on and have equall Voice with the rest although by the Constitution of the Realme as experience sheweth they are so far from being admitted Judges of the Law as that none untill he be of the age of twenty one years is capable to be sworne of a Jury to try the least matter of fact 4. All differences in that House are decided thus First by debate the businesse is reduced to a head Then the Speaker puts the question then the Members Vote and the greater number carrieth it so that if the question be upon a point of Law the quality of the persons of that Assembly considered admitting them as learned as ordinarily they are returned the best which can be expected in such a case is That the major part who is the Judge in every question there may happen to concur in Vote with some few of their fellow Members who they hope understand the businesse And so at the best this Judge decides the controversie by implicite faith For it cannot be imagined that the greater number of that Assembly by any debate there had shall understand many questions of a Law which daily and frequently happen And for the Lords House the Members of that Assembly have no other authority to sit or Vote there but as Peers of the Realme and admit the King never to create a Peere of the Realme but a man of the greatest judgement it cannot be expected understanding should alwayes descend Upon which ground it is that a grant of a place of Judicature to one and his heires as to his heires is voide in Law and although the education of the Lords for the most part are fit for persons of Honour yet they are not qualified to Judge the Law Thus for the quality of the Persons Now for the Commission Admit every Member of each House in knowledge more profound then the most learned Judge that makes them not Judge of the Law If the most learned because so learned be a Judge it is far more difficult to find out the Judge then to know the Law it is like as well the ignorant as the learned would pretend to the greatest knowledge But that is not the rule to know a Judge he is distinguished from other men by his Commission It appears before that no Court Assembly or Person hath authority to determine any matter of Law but by Grant from the King by Act of Parliament or by prescription Even so it is for the power extent and jurisdiction of any such Court person or Assembly For as no man can have any authority but by Commission so none can claime greater or other power then is thereby granted For example If the Court be erected by the Kings grant the Patent declares what authority the Iudges have beyond which they have none If by Act of Parliament the Statute doth expresse what they have Jurisdiction of if by prescription Custome and use informe the Iudges what they have to do and for a prescription to make it good these three things must concur 1. It ought to be time out of mind which is not allowed by our Law If it can appear to have had its commencement since the Reigne of King R. 1. Secondly although it hath been ancient yet unlesse it have constantly and frequently practised without interruption it is not good Thirdly The thing it selfe claimed must in the judgement of the Law be reasonable otherwise be the usage time out of minde and how frequent soever it ought to be disallowed for malus usus abolendus The Chancery the Kings Bench the Common pleas and the Court of Exchequer are Courts of Justice The Iudges thereof have power of Judicature and although in some things their authority may be inlarged and in other things abridged by some particular Acts of Parliament they have their jurisdiction principally by prescription Custome and use is their Commission The said Courts were not erected by Patent nor by Parliament yet every one
that Suppose it granted that the Iudges in that case of Ship-mony gave Sentence by corruption whereby about 200000. l. per annum was drawn from the people To conclude hereupon that we must from henceforth have no more learned men chosen Iudges is extreame harsh It might as well be argued thus The Members of the two Houses have erred in Iudgement and have been corrupt ergo we ought to have no more Parliaments For as before appeares the Members of former Parliaments have most grosly erred And for these present Members they have not only erred but have been in the highest nature corrupt too First They erred in Iudgement by assuming the Iustice seat the Soveraign power of Government and so in infinite other particulars Then for corruption since these Authorities were by them arrogated twice twenty times 200000. l. per annum illegally and barbarously drawn from the people doth not stint them They have corruptly by one Vote not onely given themselves the wealth of the whole Nation but have likewise enslaved both King and People for their lives and fortunes to their owne will But clear it is no constitution can avoid every mischiefe it is the best Law which prevents the most inconveniencies therefore in this case that which can be done is to have persons who are learned in the profession made Iudges of the Law and all possible care taken that they doe Iustice and for that by our Law no man is capable of a Iudges place unlesse he have ability to execute the same And although he be sufficient for learning yet being advanced for bribes or rewards he is by Law likewise disabled to performe the office They are sworne to do right to all persons and although error in judgement is no crime yet corruption in the Iudge be it for bribes affection malice desire of preferment fear or any other cause is by our Law an offence of an high nature and and most severely punished Now if in stead of exalting themselves the Members had as they made some shew for a while made inquiry how and by whom the Judges were drawne as the Members alleadge to give that corrupt sentence and had presented the same to the King to the end not onely exemplary punishment might have been inflicted upon them but they put out of their places and new Iudges elected the Members had done like Parliament men that had pursued their Commission And so whilst the King the Parliament the Judges every Court and Assembly retaine their owne proper authority without clashing with or encroaching each upon other As by the Laws of England they ought to do both King and Subject are preserved in their just rights And this ought to be exactly observed notwithstanding the superiority or inferiority of any Court power person or Assembly because one Court in some respect is superiour to another that takes not away nor lesseneth the proper jurisdiction of the inferior Court Scarce any inferior Court but it hath some powers which the superior Court hath not For example The Court of CommonPleas hath power between party and party to determine reall actions which the Kings Bench hath not The Assembly of the Commons House cannot give an oath yet the meanest Court of Justice even a Court of Pipowders hath that power So that if it were admitted that the two Houses of Parliament were a Court of Justice as it is not And that it were the highest Court of that nature in this Kingdome that would not at all make good their pretence to be the finall Judge of the Law from whom no appeale should lie But by this Vote and practise of the Members all Courts of justice and rightfull powers in the Kingdome are put downe the Law totally subverted and all things reduced to their arbitrary power Upon the whole matter clear it is that the Judges of the aforesaid three Courts are the Judges of the Realme and the persons unto whom all the people of this Nation are bound lastly and finally to submit themselves for matter of Law But notwithstanding all this the same necessity which made the Members exclude the King from His negative Voice and so to usurpe a boundlesse power to make Laws enforceth them to arrogate the Justice seate too For it were to little purpose for them to declare it Treason for a Subject to speake to His King and infinite such like grosse contradictions both to reason and the knowne Law and yet permit the rightfull Judges to determine the same questions that were both to exalt themselves up and at the same instant to cast themselves downe againe But they tell us they are no such babies So long as the people will be fooled nothing is more certaine but Tyrants they will be to us their slaves In the next place it is shewed who ought to nominate and authorize the Judges of the Realme CHAP. VI. That the Judges of the Realme ought to be elected and authorized by the King of England for the time being and by none else THe legall authorizing of the Judges of the Law is of that importance as upon it depends the preservation of the people for no Law no government no Judge no Law and if authorized by an illegall Commission no Judge It appears before that when the Iudge extends beyond the bounds of his Commission his proceedings are void as done coram non Judice Upon the same grounds be the words of the Commission never so large if the authority be derived from such as have not power to grant it the whole Commission is voide Yet Mr. Pryn by the authority of the Commons House hath published a Treatise intituled thus The Parliaments right to elect Privy Councellors great Officers and Judges Wherein he endeavours to prove the two Houses by the Laws of England ought to elect the Iudges And proceeds thus Kings saith he were first elected by the people and as he beleeves the people at the first elected the Judges and great Officers and bound them by publike Laws which appears saith he by infinite Acts of Parliament regulating both the power of the King and His Officers That in ancient time Lieutenant Generals and Sheriffs were elected by the Parliament and people That the Coroners Majors Aldermen of Corporations Constables and other such like officers at this day are elected by the people Knights of Shires and Burgesses are elected by the Commons of the Realme That the King can neither elect a Commoner nor exclude a Member of either House to sit or Vote That the Parliament consists of Honourable wise grave and discreet persons That although the Kings have usually had the election of great officers and Judges it hath rather been by the Parliaments permission then Concession That the Judges and Officers of State are as well the Kingdomes as the Kings And saith that Mr. Bodin a grave Politician declares That it is not the right of electing great officers which prove the right of Soveraignty because it oft
of the Kings learned Councell and the Masters of the Chancery whom the King adviseth with as His great Councell It is the office of the Commons as likewise by this Writ appears to do and consent unto such things as the King the Prelates and Peeres agree upon The second are such as the King makes choice of to advise Him in matters of State and are sworne to secrecy And the third are the Judges of the Realme and others of the Long Robe whom the King elects and are sworne to advise Him in matters of Law Now whilst these Councellors keepe within their owne bounds and faithfully performe their severall duties the known Law is preserved and so every one protected But when they extend beyond their bounds confusion ensueth Absurd it were for a sick man concerning his Cure to advise with a Lawyer or for any one in point of Law to take advise of a Physitian So for the Privy Councellors to judge the Law for the Judges to determine matter of State And the like holds with the Members of the two Houses They are neither qualified nor have Commission either to intermeddle with the Law or the affaires of State otherwise then the King shall thinke fit to intrust them by asking them their advise wherein they are onely to deliver their opinions not to controle Therefore when the two Houses have passed a Bill for a new Law and have presented it to the King they have performed their duty it then rests in the King whether to make it a Law or not wherein it may be necessary for Him to take the advise of His Privy Councell His learned Councell or of both And I conceive that may be the reason why Kings have used to answer Bils which they passe not by these words le Roy le veili By these words of the Writ viz. Quia de advisamento assensu consilii nostri c. quoddam Parliamentum nostrum c. teneri ordinavimus c. It appears that the King depends upon His Councell in calling Parliaments which oftentimes is occasioned upon State-affaires such as requires the assembling of a Parliament yet not safe to reveale those reasons to the Parliament men And so the King by advise of His Privy Councell or His learned Councell may and oftentimes doth reject Bils presented unto Him by both Houses and yet not convenient to render His reasons to that multitude Therefore clear it is the men at Westminster have extended beyond their Commission and so all these Votes are absolutely invalid not binding either King or people The King notwithstanding these Votes is or whatever the Members shall or can Vote will and must be our only Supreame Governour And consequently these men at Westminster by breaking their bounds are themselves guilty of those things which in and by their declarations to the people they grossely and falsely aspersed their King with They have and do arrogate to use their owne words an arbitrary power without above against all the Courts of Justice the Parliament it selfe not excepted And thereby the knowne Law is subverted and consequently they are most palpably guilty of that crime for which they themselves condemned as a Traytor the late Earle of Strafford but for attempting to do and that upon a slender proof too Upon the whole matter it may with as much justice sense be said that there was yet never one King of England as to question whether the King for time being hath inherently in His person the Soveraigne power of Government But that man who hath taken consideration hereof and yet so absurdly peevish as to remaine unsatisfied of the Kings right herein the whole world must judge Him worse then out of his wits to give it unto the Members Suppose the Steward of a Lord or Commoner to claime property in the estate of his Master I presume the Houses would account him an unjust Judge who should determine the case on the Stewards behalfe upon his owne testimony So here the Members challenge not onely the Soveraignty due unto their Leige Lord and King but an authority arbitrary over King and people wherein they have not the least colour of proof more then their owne affirmation Besides when a witnesse although not a party contradicts himselfe his testimony becomes invalid But the Members solemnly upon their Oathes even this Parliament have declared the King their only Supreame Governour wherein they swore not for themselves but on anothers behalfe that is for the Kings Interest So that every prudent man in common sense and reason ought to beleeve that which these men have thus sworne for the King And absolutely to reject this their affirmation contrary to that Oath and for their owne advantage And so I conclude this point concurring with the Lords and Commons 1 Jacobi that the Imperiall Crowne of this Realme is by inherent birth-right descended and come to this our King Charls And that according to the Oathes of these Members and their predecessors in former Parliaments he is our onely Supreame Governour In the next place it is shewed that the Militia of the Kingdom is in the King CHAP. VIII That the Militia of the Kingdome by the knowne Laws of the Realme is inherent in the Crowne And at the absolute command of the King and none else IT appears before that the King is the onely Supreame Governour which of it selfe is sufficient to satisfie any man of judgement that the Militia of the Kingdome is likewise in Him yet Mr. Pryn by licence of the Commons House hath published a Treatise Intituled thus The Parliaments Interest in the Militia Whereby he endeavours to prove that the Members of the two Houses which he miscals the Parliament have the power over the Militia the Forts the Navie and Revenues of the Crown And begins thus It must saith he be granted that the power which His Majesty hath or His Predecessors enjoyed ever the Militia the Forts the Navie Ammunition and Revenues of the Crowne was originally granted to His Ancestors by the Parliament and Kingdomes free consent Answer The Militia the Forts the Navy Ammunition and Revenues of the Crowne saith M. Pryn were granted to the Kings Ancestors by the Parliament and Kingdomes free consent So that neither the Parliament nor the Kingdome by his owne confession made the grant nor who he meanes was this grantor himself cannot imagine However it is not worth the labour to make further inquiry thereof for most certaine it is never any such grant was made But admit that before the Kings Ancestors enjoyed them some persons had power and Interest therein and made a grant thereof to the Kings Ancestors It is as hard a taske thereby to prove that the Members have title to these things as to find out this imagined grantor who never yet was in esse The Argument is but thus The Militia the Forts the Navy Ammunition and Revenues of the Crowne were originally granted to the Kings Ancestors Ergo at
And although this rule be exactly observed yet once having declared himself he is every houre in danger of destruction For when a new faction gets up which is very frequent changing his note oftentimes preserves him not from an impeachment he is from thence but dandled as a whelp under a Lyons Paw when that party thinkes fit cru hed in pieces Now should some of the Judges of any Court of Justice in Westminster-Hall demean themselves in this manner with their fellow Judges no wise man would esteeme them to have the power of Judicature And why a part of the Members of either House should have this Priviledge more then they is beyond the reach of the Westminster-men to make it good By this it appears that the Members have not freedome of Speech and consequently no House of Parliament Fourthly admitting the Members had not been injuriously expulsed And had they been permitted freely to give their opinions yet these men at Westminster have disabled themselves to sit or Vote there which is proved thus Every Traytor Murderer and Felon by the Law of the Land is disabled to sit or vote in Parliament But these persons are Traytors Murderers and Felons Ergo. The Major needs no proof every one grants it And for the Minor Those men have not onely committed such facts as the Law judgeth Treason Murder and Felony but even making it their daily work are still constant to those their principles They as before appears actually Levyed War against their King which is Treason They have actually endeavoured to kill the King the Queen and Prince which is Treason They have counterfeited the Kings Great Seal which is Treason They have counterfeited His Mony which is Treason They have not onely denyed their King to be the Supreame Governour but have arrogated the power of Soveraignty to themselves which is Treason They have this Parliament declared it Treason to attempt to change the Law But themselves have actually subverted both Law and Religion And have reduced both King and people to their Arbitrary power which is Treason They have and still doe imprison the Person of their King which is Treason Then for Murder besides their owne consciences if they have any remorse inwardly gnawing the fatherlesse children and widdowes of those slaine on both sides in this unnaturall War raised and prosecuted by them against King and Kingdome in swarmes to testifie against them But this not all they doe still in colder bloud and in further abuse of Justice by pretext and colour of Law sometimes in their own names other while imitating the ordinary formes of Law by the mouths of their nominall mock Judges whose understandings and consciences by their foresaid Order and with bribes and rewards they have in vassalage condemne murder and put to death the Kings Loyall Subjects as Traytors and this principally for refusing to commit Treason And for felony That offence is included both in the crime of Treason and Murder but there needs not that help to prove them guilty thereof By the Law of England it is felony of death to steal goods exceeding the value of twelve pence But these persons in the nature of robbery have by force taken from King and People their whole livelihood Suppose 20 Troopers to make an Order that all persons passing through High-gate shall deliver unto them all such Money as shall be found about them If the Troopers by colour of this Order force the passengers to deliver their Money It were ridiculous to deny this to be robbery Yet if that Order made by the Troopers were binding the fact were lawfull So here those men at Westminster have ordered which they stile an Ordinance of Parliament that all the people of England shall give unto them the 5 part and the 20 part of their Estates That every man who eats or drinkes buyes or sels shall pay unto them a certaine summe by the name of Excise That every County and Towne shall likewise contribute unto them and their Souldiers vast summes of money That all the Kings Revenues shall be disposed of to them and to their use That all persons who shall oppose them herein shall be judged Traytors and forfeit unto these men their whole estates and fortunes And by colour of those Orders we see they do by force seize and take all to their owne use Now in regard the foresaid persons at Westminster have not power as before is proved to make such Laws it directly followeth that the forcing the King and people herein is unlawfull and consequently both King and Subject are robbed of their money and goods And their estates wrongfully detained from them But peradventure these incendiaries at Westminster will object that although they be guilty of those crimes yet untill they be judicially convict thereof it cannot be alleadged against them Answer First By their owne practice they have judged this point against themselves For as before appears without any legall conviction they have expulsed almost all their fellow-Members And that for supposed facts which if guilty of disabled not them to sit or vote in the house So that these Westminster-men having to the view of the world committed such facts as by law disables them to sit or vote to be judged no Members themselves must confesse is at the most but lex Talionis Secondly it may appear even in the judgment of Law that a man is guilty of treason murder or felony although not attainted or convicted thereof For example one calls another before any conviction of such a crime Traytor Murderer or Thief The Person thus charged brings his action of slaunder In this case if the Defendant justifie his words alleaging that the Plaintif committed such a fact which the law judgeth Treason Felony or Murder and at the triall proved it The Jury ought to acquit the Defendant of the slaunder yet still that Traytor Murderer or Felon is not convict of the fact Therefore clear it is a Traytor is a Traytor And the people may as well know him so to be and as lawfully so call him before attainder or conviction as to know a spade to be a spade and so call it Besides when a treason murder or felony is committed it is the proper office of every petty Constable and of every Justice of peace nay it is the duty of every honest Subject to apprehend the malefactor and to bring him to due punishment wherein neither priviledge of Parliament dignity of the Person or imployment of the Offender is any protection It is not only lawful but the duty of every honest English man to lay hands upon the Speakers of both Houses or upon any Peer or Parliament-man or any other having committed the crime of treason murder or felony or justly suspected for the same And consequently they ought to apprehend the aforesaid Westminster-men It is true that in the ordinary proceedings no man can be convict of treason murder or felony but by Act of Parliament or