House nor any Speaker of their Houâ—e that we find in History or Record till 51 E. 3. Therefore doubtlesse they had no judicial power or jurisdiction 4ly When they became a House and had a Speaker they could neither chuse their Speaker in any Parliament without a command to and license first granted them by the King Lord Chancellor or the person implyed by the King to shew the causes of summoning the Parliament who gave them a command to elect their Speaker and then to present him to the King and Lords for their approbation of him at the time prescribed them who had then power to allow or disallow their Speaker and to order them to elect another then or afterwards incase of unfitness sickness imprisonment or any other just ground or excuse as our Parl. Rolls and others attest If then the Commons can neither elect their own Speakers nor approve nor remove them but by the Kings and Lords approbation who may discharge them upon just grounds and order rhem to elect others in their places and that against their wills as in the case of Thorpe hereafter cited Then certainly the judicature in all other cases as well as this of their very Speakers and Members too resided still in the King and Lords and was not communicated to the Commons House 5ly The Commons House inability to administer an Oath to any person in any case which the Lords alone have power to doe in Parliament 6ly Their Petitions Articles of complaint and Impeachments in all Parliaments delivered and sent up to the Lords against Delinquents in Criminal causes as well of Commons as Peers Clergy men as secular persons and their praying the Lord to judge and give sentence against them 7ly Their prosecuting and giving in evidence against all sorts of Deliquents at the Lords Bar as accusers 8ly Their standing always in such cases and that bare headed in the Lords House as Prosecutors Informers Grand-Jurymen whiles the Lords alone fit and that covered and only give pronounce the iudgement and that in the Comons absence for the most part not presence 9ly Their having no voice or share at all in the hearing examining debating reversing erronious Judgements in other Courts upon Writs of Error brought in Parliament but the Lords alone 10ly The Kings Judges not sitting amongst them but only in the House of Peers to authorize and assist them in their judgements are all infallible arguments and clear irrefragable demonstrations that the Judicatory or judicial power of Parliaments was never communicated to the Commons House upon their first admittance into Parliament nor since but remained intirely fully in the King and Lords alone as it did before That this is so in truth I have the express acknowledgement and confession of the whole House of Commons themselves long since in the Parliament of 1 H. 4. rot Parl. n. 79. remaining on record to all Posterity with the Kings and Lords concurrent resolution both from the time of the Commons first admission and for all succeeding ages The Commons in this Parliament November 3. made their Protestation in the same manner they had done in the beginning of the Parliament and more over shewed to the King Come les Ioggementz du Parlement apperteignent soulement au Roy et Seignieur et nient as Communes c. That the Judgements of Parliament appertained only to the King and to the Lords and not unto the Commons And thereupon they praâ—ed the King out of his special grace to shew unto them the said Iudgements and the cause of them that so no Record migâ—t be made in Pâ—rliamenâ— against the said Commons which are or shall be parties to any judgement given or hereafter to be given in Parliament without that privity Whereunto the Archbishop of Canterbury gave them this answer by the Kings commandment That the Commons themselves are Petitioners and demanders Et que le Roy et les seigniours de tout temps ont eues et averont de droit les juggement in Parliament en manere come mesmes les Communes sont monstrez and that the King and Lords from all times have had for times past and shall have for time to come of right the Iudgements in Parliament in manner as the Commons themselves have shewed Saving that in Statutes to be made â—or in Grants and Subsidies or in such things as are to be doâ—e for the common profit of the REALM the KING will have especially their advice and assent By this memorable Record in Parliament it is apparent by the Commons own confession First That the Judgments in Parliament even in cases of Commoners themselves and Members of the Commons House as well as Peers appertain only to the King and to the Lords in the Affirmative Secondly That they appertain not to the Commons in the Negative Thirdly A Confession both of the Commons King and Lords That they have from all times in all ages before that Parliament appertained to the King and Lords and that of right not by usurpation or connivence Fourthly An express order and resolution that the King and Lord shall alwayes kéep and hold this their Right of Iudicature in all times to come without admitting the Commons to share therein upon this their Petition as not fit to be granted them Fifthly That if the Commons should be admitted at any time to be parties or privies to the Judgements in Parliaments as they then desired it would be meerly out of the Kings special Grace Sixthly That the special reasons ends of the Kings summoning the Commons to Parliaments at the first and ever since were only these especially 1. to have their advice in Statutes to be made 2. in Grants or Subsidies 3. in such things as are to be done for the common profit of the Realm not to give them the least share right or interest in the Judicature or Judgements of Parliament as it is the supremest Court of Justice The Judicial Power and the Judgements in Parliament being never transferred in part or whole by the King and Lords to the Commons House but intirely reserved to themselves as before their admission inâ—o our Parliaments as I have proved it follows inevitably from thence 1. That all Judgements given by the Commons House alone or by any of their Committees of Sequestrations Examinations plundered Ministers c. without the Lords are meerly void and null in Law being Coram non judice and may be justly questioned and vacated by the Lords upon appeal or complaint as Nullities 2. That the House of Commons have no more right or power to judge or vote down the Lords House or question or null their Judgements upon appeals to the Commons from them as Lilburn and Overton pretend they may than the Grand or Petty Jury have to Vote down the Judges and Justices of Assize or Sessions from the Bench or to reverse or repeal their Judgements and Orders Or the Common Council of London to
Vice-Chamberlain before the King and Lords of divers offences against the King who taking the accusation to be good because of the Bishops order and that he was of the kingâ— linage pardoned the said Bishop all his misprisions done against his person and reconciled the Bishop and Sir Thomas one to another And n. 30 31. all the Lords Temporal whose names are there recorded being 25. in number by assent of the King declared and ADJUDGED Thomas Holland late Earl of Kent John Holland late Earl of Huntingdon John Mountague late Earl of Salisbury Thomas le Despencer Sir Ralph Lumley Knight and divers others who were for their Rebellions and Treasons in levying war against the King taken slain or beheaded by certain of the Kings Subjects to be Traytors and that they should forfeit all such Lands as they had in fee the 5. of January the first year of the King or at any time after with all their goods and chattels The Record is Toutz les Seigneurs temporelz esteantz en Parlement per ussent du Roy declarerent et adjuggerent les ditz Thomas c. pur Trayteurs pur la leve de Guerre encountre lour Seignior le Roy nient obstant qils furent mortz sur le dâ—t leve de guerre sanz process de ley Lo here the Lords alone by the Kings assent declare and adjudge what is Treason both in the case of Lords and Commoners too and â—taint and give Judgement against them both without the Commons after their deaths without legal trial In the Parliament of 5 H. 4. rot Parl. n. 11 12 13 14. On Friday the 18 of February the Earl of Northumberland came before the King Lords and Commons in Parliament and by his Petition to the King acknowledged that he had done against his Lawes and allegeance and especially for gathering power giving of Liveries for which he put himself upon the Kings grace and prayed pardon the rather for that upon the Kings Letters he yielded himself and came to the King at York whereas he might have kept himself away Which Petition by the Kings command was delivered to the Justices to be examined and to have their counsel and advice therein Whereupon the LORDS made a Protestation que le Juggement appentient a â—ux tout soulement THAT THE JUDGEMENT APPERTAINED ONLY TO THEM And after the said Petition being read and considered before the King and the said Lords as Peers of Parliament aus queux teils juggemeâ—t apperteignent de deoit to whom such Iudgements appertained of right having had by the Kings command competent deliberation thereupon and having also heard and considered as well the Statute made in the 25. year of King Edward the Kings Grand father that now is concerning the Declaration of Treason as the Statutes of Liveries made in this Kings reign ADJUDGED That that which was done by the said Earl contained within his Petition was neither Treason nor Felony but Trespas for which the said Earl ought to make fine and ransom at the will of the King Whereupon the said Earl most humbly thanked our Lord the King and the said Lords his Peers of Parliament for their rightfull judgement and the Commoners for their good affections and dâ—ligence used and shewen in this behalf And the said Earl further prayed the King that in assurance of these matters to remove all jealousies and evil suspitions that he might be sworn a new in the presence of the King and of the Lords and Commons in Parliament and the said Earl took an Oath upon the Crosier of the Archbishop of Canterbury to be a faithfull and loyal liege to our Lord the King the Prince his Son and to the heirs of his body inheritable to the Crown according to the Laws of England Whereupon the king out of his grace pardoned him his fine and ransom for the trespass aforesaid After which num 17. the Lords Spiritual and Temporal humbly thanked the King sitting in his royal Throne in the white Chamber for his grace and pardon to the said Earl of his fine and ransom and likewise the Commons thankâ— the Lords Spiritual and Temporal for the good and just Iudgement they had given as Peers of Parliament to the said Earl From this memorable Record I shall observe First that though this Declaration of this Earls case was made by his Petition in the presence of the King Lords and Commons in Parliament according to the Statute of 25 E. 3. yet the Lords only by Protestation in presence of the King and Commons claimed to be the sole Iudges of it as Peers of Parliament and belonging to them OF RIGHT Secondly That this claim 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 Trespass only c. Thirdly That the Earl thanked the King only for his grace the Lords for their just Iudgement 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 special thanks to the Lords Spiritual and Temporal in Parliament for their good and just judgement Fourthly That this judgement of the Lordr only was final and conclusive both to the King and Commons who acquiesced in it In the Parliament of 2 H. 5. rot Parl. num 13 14. Thomas Mountague Earl of Salisbury son and heir of John Mountague Earl 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 rot Parl. n. 30 31. forecited wherein amongst others he was attainted of Treason by judgement of all the Temporal Lords in Parliament and thereupon he exhibited certain reversals of Judgements given in Parliament as making on his behalf to the Lords consideration reversed for some errors assigned in those judgements to wit one judgement given against Thomas heretofore Earl of Lancaster before King Edward the second at Pomfract the Monday before the feast of the Annunciation in the fifteenth year of his reign and another Judgement against Roger de Mortymer late Earl of March in the Parliament of King Edward the third the Monday after the feast of St. Katherine in the fourth year of his reign at Westminster Which Judgements being distinctly and openly readâ— and fully understood It seemed to the King and Lords that the case of the death and execution of the said John late Earl of Sarum and of the judgement aforesaid against him given is not nor was like to the case of the executing of the said Th. heretofore Earl of Lancaster nor to the case of the putting to death of Roger Earl 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 John late Earl of Sarum were a good just and legal Declaration and Iudgement Per quod consideratum suit in praesenti Parliamento per praedictos Dominos tunc ibidem existentes de assensu diâ— Domini nostri Regis quod praefatus nunc Comes Sarum nihil capiat per petitionem aut prosecutionem suam praedictam Et ulterius tam Domini spirituales quam temporales supradicti judicium et Declarationem pradicta versus dictum Joannem quondam Comitem Sarum ut praemittitur habita sive reddita de assensu ipsius Domini Regis affirmarunt fore et esse bona justa et legalia et ea pro hujusmodi ex abundanti decreverunt et adjudicarunt tuuc ibidem This is all that is mentioned in that Parliament Roll concerning this businesse Sir Edw. Cook who hath an excellent faculty above all others I have yet met with in mistaking mis-reciting and perversing Records and Law-books too oft times which he had no leisure to peruse which I desire all Lawyers and others to take notice of who deem all he writes to be Oracle lest they be seduced by him in his 4 Institutes p. 23. affirms with confidence That in this Rot. Parl. 2. H. 5. n. 13. Error was assigned to reverse this judgement that the Lords gave judgement without Petition or assent of the COMMONS citing it to prove that the COMMONS have a power of judicature together with the LORDS But under his favour I can assure ye Reader 1. That there is no such error at all either mentioned or intended in this Record nor any one syllable tending to that purpose 2ly The Petition mentions no error at all in this judgement but only remembers two presidents of judgement formerly reversed the first in the case of Thomas Earl of Lancaster in 15 E. 2. which judgement was given against him at Pomfret Castle which was afterwards reversed as Sir Edward Cooke himself informs us in his 3 Institutes c. 7. p. 52 53. in Pas 39 E. 3. Coram rege rot 92. for this only reason Qua contra Chartam de libertatibus cum dictus Thomas fuit unus PARIVM MAGNATUM Regni non imprisonetur c. nec dictus Rex super eum ibit nec super eum mittet nisi per legale judicium PARIUM SUORVM c. tamen tempore pacis absque juramento seu responsione seu legale judicio PARIUM SUORUM c. adjudicatus est morti The other was the judgement given against Roger Mortymer in the Parliament of 4 E. 3. reversed for the like reason in the Parliament of 28 E. 3. n. 10 11 12. forecited being condemned and executed by the Lords without any arraignment hearing trial or answer against the Great Charter Now these two Presidents are pointblank against this pretended error alleged by Sir Edward Cook That the Lords gave judgement without the assent of the Commons and it had been very improper for them to allege the reversal of them for want of a legal tryal by their Peers to prove that the Commons who are no Peers should have assented to the Earl of Salisburies judgement and because they did it not it was Error and reversible These presidents therefore might have minded him of his gross mistake 3ly The King and Lords upon consideration declared and adjudged these two cases and judgements upon perusal of them not to be like the case of the Earl of Salisbury who being slain in rebellion and actual war against the king could not be personally arraigned and condemned as the other two might and ought to have been and therefore the judgement given against him in this case by the King and Lords in Parliament who were his Peers was a good just and legal judgement and no ways against the great Charter 4ly The Commons themselves in the Parliament o 13 H. 4. rot Parl. n. 19. acknowledged this judgement to be good without their assents by their Petition to the Kâ—ng that John Lumly whose Father was attainted of Treason by it together with the Earl of Salisbury might be restored to blood and lands by Act of Parliament and the Kings grace notwithstanding this judgement of Treason against them Which the King by assent of the Lords Spiritual and Temporal consented unto 5 ly In the Parliament of 3 E. 4. n. 31 32. this judgement was made void and repealed out of the Kings Grace by a special act of Parliament and the heir restored but the judgement not reversed for any Error 6ly Had there been any such Error assigned as is alleged yet the King and Lords upon solemn debate and deliberation over-ruled and adjudged it to be no Error at all as he pretends it and thereupon abated the Petition and adjudged the Judgement and Declaration given by the Lords alone with the Kings assent in 2 H. 4. without the Commons Petition or assent to be GOOD JUST AND LEGAL reconfirming it a new on Record as such Therfore it was a gross oversight in him to assign and print it as an Error and a President of the Commons House or both Houses power of judicatures together when as it is a most undeniable double Parliamentary resolution of the Kings and Lords sole right of judicature of their declaring and judging in Parliament what is Treason and what not within the Statute of 25 E. 1. without the Commons assent or privity and an unanswerable refutation of his sole opinion to the contrary in his 3 Institutes c. 2. p. 22. which he opposeth against not only these two Parliamentary resolutions but likewise against 5 H. 4. n. 11 12.15 and 17 R. 2. rot Parl. n. 20. there quoted by him By this you may judge how little credit is to be given to Sir Edwards quotations and authority in matters concerning Parliamentary Judgements and Records In the Parliament of 28 H. 6. rot Parl. n. 14. to 53. The Commons generally accusing William de la Pool Duke of Suffolk to the King and Lords he thereupon required of the king that he might be specially accused and heard to answer to that which many men reported of him to be an untrue man making therewith a protestation of his manifold good services in the wars and as a Privy Counsellor for sundry years and so asking God mercy as he had been true to the King and his Realm required his purgation The 26 of January the Commons required that for this his Confession he might be committed to ward The Lords and Judges upon consultation thought there was no good cause for that unlesse some special matter were objected against him The 28 day of January the Speaker declared that the said Duke as it was said had sold the Realm to the French who had prepared to come hither and for his own defence had furnished Wallingford Castle with all warlike necessaries upon whose request the said Duke was then
3. Stat. 5. c. 4. because contrary to Magna Charta it self as he now expounds it Let him therefore unriddle assoyl this his own Dilemma or for ever hold his tongue and pen from publishing such absurdities to seduce poor people as he hath done to exasperate them to clamour against the Lords for being more favourable in their censure of him than his transcendent Libels and contempts against them deserved Fifthly This Statute is in the disjunctive by the Lawfull Judgement of his Peers OR BY THE LAW OF THE LAND which this Ignoramus observes not Now by the Law of the Land every inferiour Court of Justice may fine and imprison men for contempts or misdemeanors against them and their authority therefore the Lords in Parliament being the highest Tribunal may much more do it and have ever done it even by this express clause of Magna Charta and the Law and Custom of Parliament as well as they may give judgements in writs of Error against or for Commons without the Commons consent as himself doth grant yea and by the Kings concurrent assent declare what is Treason and what not within the Statute of 25 E. 3. c. 20. in the cases of Commoners as well as Lords without the Commons as they did in the forecited cases of William de Weston and Lord of Gomines 1 R. 2. n. 38 39 40. Of William Thorp 25 E. 3. n. 10. Of Thomas Haxey 20 R. 2. n. 15 16.23 Of Sir Thomas Talbot 13 R. 2. n. 20 21. Of Sir Robert Plesington and Henry Bowhert 22 R. 2. Plac. Coronae in Parliamento n. 27 28. Of John Hall 1 H. 4. Plac. Coronae in Parl. n. 11. to 17. Of Sir Ralph Lumley and others 4 H. 4. n. 15. 19 20 21. Of Sir John Oldcastle 5 H. 5. n. 11. and of Sir John Mortymer 2 H. 6. n. 18. as the Commons and Judges in all those Parliaments agreed without contradiction against the erronious opinion of Sir Edward Cooke to the contrary in his 3. Institutes p. 22. Sixthly It is granted by Lilburn that by this express Law No Freeman of England ought to be judged or censured but only by his Peers and that Commoners are no Peers to Nobles nor Noblemen Peers to Commoners Then by what Law or reason dared he to publish to the world That the House of Commons are the Supreme Power within this Realm and THAT BY RIGHT THEY ARE THE LORDS JUDGES certainly this is a Note beyond Ela a direct contradiction to Magna Charta in this very clause wherein he 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 Iudges then by Magna Charta c. 29. they are and ought to be their Peers and if the Commons be the Lords Peers then the Lords must be the Commons Peers too and if so then they may lawfully be his Judges even by Magna Charta because here he grants them to be no other than his Peers Lo the head of this great Goliah of the Philistin Levellers cut off with his own sword and Magna Charta for ever vindicated from his ignorant and sottish contradictory Glosses on it Now to convict him of his Errour in affirming the House of Commons to be by right the Lords Judges I might inform him as I have formerly proved at large that Magna Charta it self c. 14. 29. and Sir Edward Cook his chief Author in his commentary on them are express against him that in the Parliament of 15 E. 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 Temporalties Lands and Tenements Goods and Chattels seised into the Kings hands and some put to death without Iudgement of their Péers 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 Temporalties Lands Tenements Goods Chattels nor to be arrested or imprisoned outlawed exiled nor forejudged nor put to answer nor to be judged but by award of the said Péers in Parliament which privilege 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. 18 E. 3. n. 7. to 16. 10 R. 2. n. 7 8. 11 R. 2. n. 7 c. and sundry other Parliament Rolls See Cook 4. Instit p. 15. 17 E. 3. 19. Cromptons Jurisdiction of Courts f. 4. 12 13. Stamford f. 151 152. This Paradox therefore of his is against all Statutes Law-Books Presidents whatsoever and Magna Charta it self And as false an assertion as that the Subjects are the Judges of their Soveraign the Servants of their Masters the children of their Parents the Wiâ—es of their Husbands the Soldiers of their General and the feet and lower members of the Head The second only Objection more of moment is this If the House of Peers may without the Commons fine and imprison Commoners then if their fine and imprisonment be unjust and illegal they shall be remediless there being no superior Court to appeal unto which will be an intollerable slavery and grievance not to be indured among free-born people I answer first That no injustice shall or ought to be presumed in the highest Court of Justice till it be apparently manifested Secondly If any such censure be given the party as in Chancery upon just grounds shewed may Petition the House of Peers for a review and new hearing of the cause which they in justice neither will nor can deny and if they do then the party grieved may petition the house of Commons to intercede in his behalf to the Peers for a rehearing but for them to discharge free any Commoner judicially censured by the Lords I have hitherto met with no president in former Parliaments nor power in the house of Commons to doe it who cannot reverse Erronious judgements in any inferiour Courts by writ of Error but the Lords alone much less then the judgements of the Higher House of Peers which is paramount them Thirdly I conceive the House of Peers being the Superior Authority and only Judicatory in Parliament may relieve or release any Commoners unjustly imprisoned or censured by the Commons house or any of their Committees and ought in justice to doe it or else there will be the same mischief or a greater in admitting the house of Commons to be Judges of Commoners if there be no appeal from them to the Lords in case their sentences be illegal or unjust Thirdly This mischief is but rare and you may object the same against a sentence given or Law made in Parliament by the King and both Houses because there is no appeal from it but only to the next or some other Parliament that shall be summoned by petition in the nature of a Writ of
praesenti supersit His horumque similibus regali facundia editis praefaâ—us Petrus assensum praebere utile judicavit annuit Quapropter larga regis munificentia magnifice honoratus nullo modo se quicquam antiquae dignitatis derogaturum immo ut dignitatis ipsius gloria undecunque augmentaretur spoâ—pondit plena fide elaboraturum Pax itaque firma inter eos firmata est qui Legati officio fungi in tota Britannia venerat immunis ab omni officio tali cum ingenti pompa via qua venerat extra Angliam a Rege missus est At Canterbury he perused the antient privileges granted to the Prelates by the See of Rome touching their superiority over York Quibus ille perspectis atque perpensis testatus etiam ipse est Ecclesiam Cantuariensem grave nimis immoderatum praejudicium esse perpessam quatenus hoc velocius corrigeretur â—e modis omnibus opem adhibiturum pollicitus est Post haec Angliam egreditur By all these Parliamentary Councils and Proceedings in them and the Kings answer to this Legate it is most apparent from the testimony of Eadmorus present at most of them and then antient Hiâ—orians 1. That they all consisted during all the reign of King Henry the 1. of the King Bishops Abbots Earls Lords and Barons without any Knights Citizens Burgesses or Commons elected by the people 2ly That not only the legislative but judicial power or judicature of Parliament in all civil ecclesiastical and criminal causes debated or judged in them resided wholly in the King Prelates Earls Barons and Nobles which they joyntly and severally exercised by mutual consent as there was occasion 3ly That our Kings Prelates Nobles were then all very vigilant and zealous in opposing the Popes usurpations upon the antient Liberties Privileges Customs of the king kingdom and Church of England 4ly That those Antiquaries and others are much mistaken who affirm the Commons were called to the Parliament of 16 H. 1. as well as the Peers and Nobles and that since that time the authority of this Court hath stood setled and the COMMONALTY had their voice therein which the said H. 1. GRANTED TO THEM in love to the English Nation being a natural Englishman himself when as the Normans were upon terms of revolt from him to his Brother Robert Duke of Normandie it being clear by these Histories and all the Parliamentary Councils under King Henry the 1. and under Hen. the 2. King Ric. the 1. King John and Henry the 3. forecited and here ensuing that there were no Knights Citizens Burgesses or Commons elected by the people summoned to our Parliaments in their reigns succeeding Henry the 1. therefore not in his 5ly That the Opinion of Mr. Cambden Judge Dodridge Jo. Holland Sir Ro. Cotton Mr. Selden and others is true that the first Writ of Summons of any Knights Citizens Burgesses or Commons to Parliament now extant is no antienter than 49 H. 3. dors 10.11 That King Henry the 3. after the ending of the Barons wars appointed and ordained That all those Earls and Barons of the Realm to whom the King himself should vouchsafe to send his Writ of Summons should come to his Parliament and none else but such as should be chosen by the voice of the Burgesses and Freemen by other Writs of the king directed to them And that this being begun about the end of Hen. the 3. was perfected and continued by Edward the 1. and his Successors Which Holinshed Speed do likewise intimate in general terms So that upon due consideration of all Histories Records and judicious Antiquaries it is most apparent that the Commons had no place nor votes by election in our Parliaments in Hen. 1. his reign noâ— before the latter end of King H. 3. and Ed. 1. who perfected what his Father newly before him began in summoning them to Parliaments This being an irrefragable truth as I conceive the next thing to be considered of is this whether the Commons when thus called and admitted by H. 3. and E. 1. into our Parliaments had any share right or interest in the judicature of Parliaments then granted to them either as severed from or joyntly with the King and Lords And if any share or right at all therein at what time and in what cases was it granted or indulged to them With submission to better judgements I am clear of opinion that the King and Lords when they first called the Knights Citizens and Burgesses to Parliament never admitted them to any share or copartnership with them in the antient ordinary Judicial power of Parl. in civil or criminal causes brought before them by Writ Impeachment Petition or Articles of complaint as they were the supreme judicature and Court of Justice but reserved the judicial power and right of giving and pronouncing all Judgements in Parliament in such cases and ways of proceeding wholly to themselves admitting them only to share with them in their consultative Legislative and Tax imposing power as the Common Council of the Realm thereby in cases of Attainder by Act Bill or Ordinance a part of the Legislative not ordinary judicial authority of Parliament allowed them a voice and partnership with themselves and a share in reversing such Aâ—tainders by Act Bill or Ordinance by another Bill or Sentence but in no cases else except such alone wherein the King or Lords should voluntarily at their own pleasures not of meer right requite their concurrence with them The Arguments reasons inducing me to this opinion and irrefragably evincing it are these 1. The Form of the Writs for electing Knights Citizens Burgesses of Parliament with the retorns and Indentures annexed to them which are only ad faciendum consentiendum his quae tunc ibidem de Communi Concilio dicti regni contigerint ordinari Which gives them no judicial power in civil or criminal causes there adjudged as the Writs to the Lords doe give to them by these clauses Ibidem cum Praelatis Magnatibus Proceribus regni colloquium habere tractatum vobiscum c. colloquium habere tractare Personaliter intersitis Nobiscum ac cum Praelatis Magnatibus Proceribus super dictis negotiis tractaturi vestrumque consilium impensuri and usage custom time out of mind 2. Because when first summoned to our Parliaments they were never called nor admitted thereunto as Members of the Lords house or as persons equal to them in power nor admitted to sit in the same Chamber as Peers with them but as Members of an inferiour degree sitting in a distinct Chamber from them by themselves at first as they have done ever since which I have elsewhere proved against Sir Edward Cooks and others mistakes as Modus tenendi Parliamentum it self resolves if it be of any credit 3ly Because after their call to our Parliaments in 49 H. 3. they had scarce the Name nor Form of an House of Commons or Lower
ut rex ipsis omnibus qui in eorum comitiva arma moverant literas patentes indemnitatis concederet ne pro transgressionibus transactis vel praesentibus a rege seu quovis alio futuris temâ—oribus punireâ—ur Ad haec dominus rex respondit quod Hugo le Spencer pater in suo negotio mare transierat Hugo junior in mari ad custodiendum quinque Portus prout ex officio renebatur qui de jure vel consuetudine exulare non debent ante responsa data per eosdem Adâ—câ— praeâ—ereâ— quod eorum petitio juris rationis fundamento carebat eo maxime quod dicti Hugo senior Hugo junior parati semper fuerant omnibus de se conquerentibus in forma juris respondere si probare possent eos in aliquo statuta terrae laesisse parati semper suerant legibus regni parere Postremo cum juramento addidit quod noluerit sacramentum violare ad quod astrictus fuerat in Coronatione sua concedendo literas pacis et indulgentiae tam notorie delinquentibus in suae personae contemptum et totius regni perturbationem et majestatis regiae laesionem Hiis auditis Proceres acti in â—uâ—iam confesâ—im ad arma rosiliunt milites quidam super armatura cotiâ—cas induerunt vocatas quarteloys Armigeri vero indumenta bendas habuerunâ— quibus indumentis expost induti tracti sunt suspensi plurimide procerum Comitiva Cum fastu igitur pompa nimia Barones Londonias adierunt hospitatique in suburbia civitatis manebant pacifice donec licentiam ingredi civitatem obtinuissent obtento a rege civitatis ingressu Magnates sicut prius in petitione sua fortiter perstiterunt Tandem interveniente regina praefatis episcopis laudabiliter mediantibus rex inductus est propter werrae periculum evitandum ut condescenderet votis petitionibus Procerum praedictorum Edictoque super hiis per comitem Herefordiae in aula Westmonasterii publicato Hugo senior in exilium actus est Sed Hugo junior in diversis locis latitans in Anglia in mari permansit The Clause Roll of 14 E. 2. m. 17. Schedula records the proceedings with this addition that King Edward the 2. having summoned the Lords to come to a Parliament with the rest of the Council at Glocester Humfry de Boun Roger de Mortimer and their confederates refused to come upon the Summons for fear of Hugh Spencer who was made Chamberlain in pleno Parliamento 12 E. 2. at York desiring that he might be committed and kept in safe custody till the Parliament for they weâ—e unwilling to come to him so long as he was with the King The King said he much wondred at this their carriage in regard Spencer was never questioned in any other Parliament since he was made Chamberlain for any misdemeanour ignorare non debetis nec potestis quod mandata nostra omnibus singulis ad Nos ad hujusmodi mandata nostra convenientibus protectâ—o desensio sunt debent secundum legem et consuetudinem Regni nostri As for removing Spencer from him which they desired he said it were unjust and of ill example aliis Ministris nostris sâ—ipsum amoveremas à Nobis totaliter sine causâ— Praefâ— uâ— vero Hugonem sive quemaâ—is alium Custodiae sine causa committere non possumus nec debemus cum hoc esset conira tenorem Magnae Chartae de libertatibus Angliae et contra Communem Legem Regni nostri ac contra Ordinationes made by himself and the Lords in Parliament Idem enim Hugo se protulit plane ac publice coram Nobis ad respondendum in Parliamento nostro alibi prout debuit querelis nostri siâ—gulorum aâ— ipso conqueretium volentium ad standum inde recto c. And thereupon he commands them to come and treat cum caeteris de Concilio at Oxford whereas it appears by the Dorse of this Roll he had formerly summoned them and the rest of the Council to Glocester whether these Earls refused to come Claus 15 E. 2. dorso 32. The whole proceedings against the Spencers in Parliamen are at large recorded but cancelled by order of the Parliament at York They were sent to every Court to be inrolled and the writ recites thar their judgement was per pares in praesentia Regis Soon after the same year the King summoned a Parliament at York on the 3. of September where this judgement against the Spencers was questioned as erronious and being referred to the consideration of the Provincial Council of Canterbury they conceived it to be erronice factum because the Spiritual Lords never assented to it neither could they doe it because it was Jndicium sanguinis for if they submitted not to the exile they were to be proceeded against as Enemies to the King and Realm After which the King and some of the Lords had the sentence read to them and they said It was erroniâ—ous The Earls of Richmond Pembroke and Arundel said They gave their voyces for fear of the other Noble mens power and the Judges said Consideratio praedicta fuit contra Legem consuetudinom regni The King writes down all this and then sends to some of the Bishops that were absent from the Council to know their minds 4 Januarii who concurring in judgement with the rest thereupon the Process Judgement and Act against the Spencers was nulled and made void before the King Lords and Commons who were consenting to it before 1. Because they were not called to it to make their defence 2ly Because the Lords Spiritual who were Peers assented not to it 3ly Because against MAGNA CHARTA the franchises of England Nullus liber homo utlagetur c. 4ly Because the Faults were not sufficiently proved 5ly Because the Lords in the Kings absence of their proper authority usurping to themselves royal power had given the judgement of his royal assent with the assent of the Lorâ—s and Commons without his privity and against his will The judgement and process of this repeal and nulling their sentence were sent by Writ into every County to proclaim and to null and cancel the first judgement A little before which Parliament Thomas Earl of Lancaster and sundry other Lords Knights and Gentlemen for adhering to him and levying war against the king were arraigned impeached before the Lords and commanded to be hanged drawn quartered and beheaded Comitum et Baronum Consilio as Walsingham relates without the Commons peculiar assent and accordingly executed Anno 1326. Hugh Spencer the younger notwithstanding the repeal of his exile being taken by the Kings forces was brought to Hereford and there arraigned publiquely before William Trussel a Judge His inditement is at large recorded in the Chronicle of Leicester and in Henry de Knyghton de Eventibus Angliae l. 3. c. 15. col 2547. c. beginning thus Hugo de Dispencere En Parlement nostre
of Attainders in cases of high Treason did not institute them Judges of these persons nor give them any share in the judicial right and power of Parliaments 1. Because most of these persons thus attainted by Bill were Queens Dukes Earls Lords Barons and Peers of the Realm who were triable to be judged only by their Peers none else by the Common Law of England Magna Charta c. 29. and sundry other Acts not by the Commons who are not their Peers 2ly Because most of these parties thus attainted by those Bills were first attainted tried judged condemned in Parliament by the Lords alone as their proper Judges upon the complaints or impeachments of the Lords Appellants or of the Commons themselves or else before some other Judges upon indictments and legal tryals and those Acts did only confirm and ratifie their precedent attainders recited in them 3ly Because in many of these Acts the Commons did only petition that their Attainders might be ratified by Bill and the King and Lords assents thereto which was done at their request as Petioners not Judges 4ly Because their Judgements and Attainders passed formerly by the Lords and Judges were good in Law though thus ratified afterwards by Bill for the greater terror certainty and satisfaction and these Bills did pass no new Judgements and Attainders upon the parties but only ratifie the old and in cases where there was no precedent Attainder they attaint them only by vertue of their Legislative power without any indictment tryal or hearing of the parties themselves as Judges of them some of them being dead when attainted taking all the charges in the Bills pro confesso and notoriously true and proved such by some other precedent legal convictions and evidences 2ly There is a formal proper Judgement given in our Parliaments both in criminal and civil causes upon complaints Articles Petitions Impeachments Inditements Informations Writs Appeals Reports References and that either against or concerning Peers themselves or against or concerning Commoners and other Laicks or Clergy-men And in all such cases proceedings the King and Lords alone have a proper judiciary power or right of Judicature without the Commons vested in and executed by them which I shall abundantly evidence and make good by sundry memorable Presidents out of our Histories and Records in all ages not vulgarly known and for the most part never yet remembred by any who have wriâ—ten of our Parliaments and the proceedings in them whose Treatises are very slight unsatisfactory and in many things of this nature erronious I shall begin first with presidents concerning Ecclesiastical Temporal Lords alone proceeded against impeached judged censured in our Parliaments for sundry criminal causes Offences Treasons wherin the House of Commons can challenge no share or voice in the Judicature especially in the case of Temporal Lords who are such in their own right and sit in Parliament ratione Nobilitatis but the Lords alone and that by the express Letter and Resolution of the Great Chariers of King John and of King Henry 3. and Ed. 1. c. 14.29.15 E. 3. c. 2 3 4. and roâ— Parl. n. 6.8.11 R. 2. rot Parl. n. 6 7.5 H. 4. rot Parl. n. 12.28 H. 6. ror Parl. n. 51 52 53. 20 H. 6. c. 9.26 H. 8. c. 13.28 H. 8. c. 7.18.31 H. 8. c. 12.32 H. 8. c. 4.33 H. 8. c. 12 20 23.35 H. 8. c. 2.1 Ed. 6. cap. 12. 1 Mar. c. 6.1 2 Phil. Mar. c. 3.4 5 Phil. Mar. c. 4.1 Eliz. c. 1.5.5 Eliz. c. 11.13 Eliz. c. 1.14 Eliz. c. 1 2 3. 18 El. c. 1.23 El. c. 1 2.27 El. c. 2.3 E. 3.19 Fit Corone 16â— 1 H. 4.1.10 E. 4.6 Brooke Trial 142. Stamford l. 3. c. 1. f. 152.33 H. 8. Brookâ— Trial 142.34 H. 8. Bro Corone 172.13 H. 8.11 Br. Treasons 29.38 H. 8. Br. Treasons 2.33 Dyer 99.107.208.360 Cook 6 Rep. f. 52.9 Rep. f. 30.87 and Cooks 2 Instit f. 28 29 48 49 50. and his 3 Instit c. 1. 2. p. 27 28 29.30 31. All which declare enact resolve That the Peers of this Realm shall not be tried or proceeded against but only by the lawfull judgement and verdict of their Peers The Lords and Barons of Parliaments trial by Peers alone of their own rank being so essential that they cannot waive nor put themselves upon the trial of the Country by 12. ordinary Freeholders as was resolved in the Lord Dacres case Pa. 26 H. 8. Cooks 3 Institutes f. 30. much less then can they waive their Peerage it self and sit as Commoners in the Commons house as I have formerly proved The first president I meet with in our Histories of this nature is in the reign of Cassibelan the British King who having repulsed Julius Caesar upon his first landing in this Island and forced him to return into France Edictum fecit ut omnes Proceres Britanniae convenirent to the City of â—roynovant now London where Evelin nephew to Androgens Duke of Troynovant slaying Heralgas nephew to Cassibelan upon a sudden quarrel as they were playing together Cassibelan thereupon commanded Evelin to be brought before him talem sententiam quam Proceres regni judicarent subire which Androgeus opposing â—aying sese suam Curiam habere in illa diffiniri debere quicquid aliquis in homines suos clamaret thereupon Cassibelan threatned to waste his Country with fire and sword if he refused to deliver up his Nephew to justice to undergo the sentencâ— quam Proceres dictarent which he accordingly executed for refusing to put his Nephew upon the Trial and Judgement of the Nobles for this murder The next president I find is that of Wilfrid Archbishop of York who for refusing to divide his Bishoprick into two Bishopricks more and for endeavouring to perswade Queen Emburga to become a Nun and desert her husband Egfrid King of Northumberland was through that Queens malice and prosecution in two several Parliamentary Councils Anno 678. 692. twice deprived of his Archbishoprick and banished the Realm by King Egfrid Theodor Archbishop of Canterbury and the rest oâ— the Bishops and Nobles of the Realm assembled in these Councils and at last restored to his Archbishoprick again in another Council An. 705. by King Osred his will and consent About the year of our Lord 924. Elfred a Nobleman who opposed Aethelstans title and election to the Crown though in vain intended to seise upon him at Winchester and put out his eyes but his Treason being discovered he was apprehended and sent to Rome to purge himself thereof by Oath where he abjuring the fact before the Altar of St. Peter in the presence of Pope John the 10th fell down suddenly to the ground as dead and being thereupon carried away thence to the English School he there expired within 3 dayes after The Pope acquainting the King therewith and craving his advice what to do with him and whether he should have Christian burial the King thereupon
son serement Auxint pur lour malveis covetise et par poiar roial a eux acroche ne susterent nostre seignor le roy doier ne droit fair ' as grandes de la terre sur la demonstrance que ilz fesoient a luy pur luy et pur eux de la disheritance de la corone et de eux touchant les terres que furent as templers Et issint par yoiar roial a eux accroche ont ils mesne nostre seignour le roy son counseil et ses prelatz que des choses touchant eux ou lour alies ount emprise et embrace par eux que droit ne poet estre fait forsquea lour volunte et a dammage et a dishonour de nostre dit seigneur et peryl de son serement et dishinheritaunce et destruction de plusours autres grandes du people de son royalme Et auxint de eslues as evesque abbes et priours que devoient de droit estre resceux de nostre seignour le roy lou ils sont en due maner estues ne poient approcher a nostre seignour le roy ne one luy parler de querer sa grace tanque ils avoient fait sine et fret Sir Hugh le fitz a sa volunte Ne nul que eust grant aquere de nostre seignour le roy ne poet a nul grant atteinder avantque ilz avoient faitfine a luy Estre ceo lou John de Lacchelegh et autres fuerent agardes a la prisone pur un trespas que ils avoient fait a la dame de Merk a damag ' de la dist dame de M. Centz marcz dont ils furent atteintz devant mon Sir Robert de Middyngle er ses compaignons Justices assignes a oier et terminer cel temps cel trespas et le dit John feust en la prison de Colcestre par la gard suisdit Sir Hugh le fitz accrochantz a luy roial poiar amesna le diâ— Iohn hors de la prison contre leye de la teâ—re eius que il avoir fait gree a la dit dame des damages avantditz et luy fist vender sa terre a luy et â—ever sur ceo un fine Claus 16 E. 2. m. 5. There is this memorable case recorded The King being at Bishops Thorpe near York held a Council with his Lords divers of which are there named concerning the Truce with Scotland inter quâ—s Nobiles Hen. de Bellamont Baro de Magno et secreto Concillo ipsi Domino Regi juratus vocatus fuit ibidem venit Being there preâ—ed by the King to give his advice herein quodam motu excessius animo quasi irreverents dicto Domino Regi saepe respondit quod sibi consulere noluit in hac parte Whereupon the King commanded him thence Upon which he went out of the Council and said He had rather be absent than there Upon which contemptuous carriage and words consideration being had by the Lords and Council by all the Iudges Barons of the Exchequer being there amongst others to wit as assistants in regard he was sworn and had taken the Oath of a privy Counsellor to the King being called in again Committitur Scalae Prisonae pro contemptu inobedientia praedictis After which he was let to mainprise and a truce being there concluded with the Scots thereupon the writs ad arma c. were revoked that were formerly iâ—sued to the Tenants by Escuage and Knights service In the Parliament held at Winchester Ann. 2 E. 3. Edmund Earl of Kent the Kings Uncle by the instigation and power of Roger Mortimer Earl of March was arrested impeached condemned and executâ—d for conspiring and attempting to rescue his Brother King Edward the 2. and saying he was alive after the time he was murdered which Treason was said to be manifestly proved by Letters found about him and by his own voluntary confession before the Coroner recorded in Walsingham and the Clause Roll of 4 E. 3. which Letters and confession were openly read in Parliament pur que oue le assent des Countz Barons et autres Grantz et Nobles â—n mesme le Parliament par agard dicelle estoiet le dit Count come Nostre Trayture et Traiture de Royalm adjudge a la mort as the King himself recites in his Writs and Letters to all Sherifs Claus 4 E. 3. m. 16. dorso Demorte Edmundi nuper Comitis Cantii publicanda commanding them to publish this as the cause and manner of his death and to arrest all those that said King Edward the 2. was alive or that the said Earl of Kent was otherwise put to death So that by this record being a Peer he was adjudged to death only by the Earls Barons Great men and Nobles in Parliament without the Commons not named in this record And therefore the Kings Letter to the Pope in 4 E. 3. relating the proceedings and judgement against the Earl in these words if truly recited Comitibus Magnatibus Baronibus aliis de COMMUNITATE dicti regni ad PARLIAMENTUM illud congregatis injunximus ut super hiis DISCERNERENT ET JUDICARENT quid rationi justitiae conveni et habentes prae oculis solum deum qui eum CONCORDI ET UNANIMI SENTENTIA tanquam reum criminis laesae Majestatis ADJUDICARENT ejus sententiae c. Objected by Sir Robert Cotton to prove the Commons to have a share and voice in judicatures in Parliament and that not in the case of a Commoner but this great Peer must needs be understood of an Attainder by Bill to confirm the judgement formerly given against him by the Earls Barons and Lords alone in this Parliament as in the case of the two Spencers not long before not of his original sentence given only by the Lords Barons and other Great men and Nobles as the Clause Roll and all Writs to the Sheriffs record Which the Parliament Roll in 4 E. 3. n. 11 12. doth likewise intimate where Earl Edmonds eldest Son and Margaret Countesse of this Earl of Kent by their Petitions prayed that THE RECORD or Bill against the said Earl might be reversed for errors therein appearing and he to be restored to blood and lands of his Father and she to her Dower which was granted and ordered by Parliament saying to the King the wardship of the same during his minority and thereupon it was further enacted That no Peer of the land nor other persons should be impeached for the death of the Earl of Kent but only the said Mortimer and 3 more then impeached and condemned of High Treason for his murder as well of the deposed Kings and that his Countess should have her Dower as Claus 5 E. 3. part 1. m. 24. assures us In the Parliament of 4 E. 3. rot Parl. n. 14. Edward the eldest Son of Edward Earl of Arundel condemned and beheaded without any legal trial by his
Lords only sit upon the Bench and that covered and in their Parliamentary Robes the badges of Judicature but the Commons stand and that bare at the Bar without any robes at all the Lords only swear examine the witnesses and judge of their testimony the Commons only produce the witnesses presse and manage the evidence and when the buâ—nesse is fully heard the Lords only debate the cause among themselves and give the final Sentence Judgement without the Commons though sometimes in their presence and that both in cases of Commoners and Peers Therefore the Lords and House of Peers are sole Judges in Parliament not the Commons 9ly The Commons themselves in all ages since admitted into our Parliaments have always presented their Petitions in Parliament to the King and Lords alone for redress of all Grievances wrongs misdemeanours abuses whatsoever publike or private criminal or civil ecclesiastical marine or military And the Lords House alone have in all antient Parlaments appointed particular persons of their House to receive al Petitions Triers of them to hear and answer them by their advice and the kings assent when necessary which Triers of Petitions had power given to call the Lord Chancellor Treasurer Chamberlain Judges kings Servants and others to this assistance prescribing where when their Petitions should be presented examined redressed at all our Parliament Rolls aâ—est and Sir Edward Cook himself relates There being few or no Petitions at all presented by any to the Commons before â—â— H. 7. c. 19. 4 H. 7. c. 6. These Petitions then presented to them and all ever since with all in this present Parliament being only to this end that they upon the examination of the truth matters complaints grievances mentioned in them might transmit and represent them in the name of the Commons House to the Lords House for to give full redress relief and judgement on them to the Petitioners not for the Commons themselves to judge finally determine them or give relief upon them without the Lords as all the transmissions of private and publike Petitions by the Commons to the Lords heretofore and in this Parliment in the cases of Dr. Layton Dr. Bastwick Mr. Burton Mr. Walker my self and of Lilburns own Petition against his censure attest Therefore the Judicature of our Parliaments must wholy rest and intirely reside in the Lords House as well in all Criminal as civil cases both of Commoners and Lords 10ly The surest badge and highest evidence of the right and exercise of Juridical and Judicial Authority in Parliament is the examination affirmation control repeal nulling adjudging and finall determining all Errors in Judgements Decrees Proceedings all Misprisions Abuses Corruptions grievances whatsoever of Judges Justices in all other Courts of Justice Civil Ecclesiastical Marine or military Now the Lords-alone in Parliament upon Wtits of Error Appeals Complaints Petitions c examine confirm repeal null redresse and finally determine all Errors misprisions in Judgements Decrees Proceedings and all Abuses Corruptions Grievances whatsoever in all other Courts of Justice whether Civil as the Kings Bench Chancery Exchequer Chamber Common Pleas Exchequer Court of Wards Courts of Requests Stanneries c. or Ecclesiastical as the High Commission Archbishops Consistories the Convocation and the Admiralty Court Marshal Council Table Star-chamber and in former Parliaments as is evident by sundry presidents in former ages and in this present Parliament of King CHARLS in the cases of Dr. Layton Dr. Bastwick Mr. Burton Lilburn himself Mr. Grafton Alderman Chambers Mr. Rolls Sir Rob Howard Alderman Langham and Limry Mr. Johns and le Gay with sundry others But more especially in cases of Writs of Error brought in Parliament by Peers or Commoners upon any Erronious judgements touching their real or personal estates lives limbs liberties persons upon Indictments or Attainders In all which writs the King and Lords only are sole judges without the Commoners and the returns of the proceedings upon such Writs are only before the Lords in the Vpper House secundum legem et consuetudinem Parliaments So Sir Edward Cook himself expresly resolves in direct terms in his 4 Institutes p. 21 22 23. And 22 E. 3.3 Fitz Error 8 Br. 3.1 H. 7.20 21 22. Br. Error 137. Old Book of Entries p. 302.16 E. 3. Fitz. Brev. 651.21 E. 3.46 Br. Error 65.29 E. 3.24.39 Ass 18.42 Ass 22.7 H. 6.28 8 H. 5. Fitz. Error 88.19 H. 6.12.35 H. 6.19.37 H. 6.16.11 H. 4.65.9 E. 4.3.2 R. 3.22.37 H. 8.14 15 25. Dyer f. 62.196 201 315 375. intimate as much This is most clear by the Writs of Error Judgements and Proceedings on them in the Parliament House before and by the Lords alone mentioned in the Parliament Rolls themselves as 14 E. 1. roâ— Parl. 1.4 E. 3. n. 13 14.21 E. 3. n. 65 66.28 E. 3. n. 8. to 14.50 E. 3. n. 38.1 R. 2. n. 28 29 105.2 R. 2. n. 31 32 33 37 38. Parl. 2. and Parl. 1. n. 21. to 27.3 R. 2. n. 19.20 21 22.6 R. 2. n. 17.7 R. 2. n. 20 21.8 R. 2. n. 13 14 15 16.13 R. 2. n. 16 17 15 R. 2. n. 22 23 24.16 R. 2. n. 17 18.17 R. 2. n. 17.19 â—8 R. 2. n. 11 12 13.20 R. 2. n. â—6 21 R. 2. n. 25 55. to 66 71.1 H. 4. n. 91 92.2 H. 4. n. 38 39 40.4 H. 4. n. 26.5 H. 4. n. 40.6 H. 4. n. 31.1 H. 5. n. 19.2 H. 5. n. 13 14.3 H. 5. n. 19. with sundry Writs of Error in succeeding Parliaments and this now sitting adjudged determined by the King and Lords alone without the privity or interposition of the Commons A truth so clear that Lilburn himself in his Argument against the Lords jurisdiction confesseth iâ— If then the Lords House be the soâ—e Judges in all Writs of Error and Appeals from all other Courts of Justice concerning the Lands Tenements Goods Estates Liberties Members Lines Attainders of all English Freeholders and Commoners whatsoever notwithstanding the Statute of Magna Charta ch 29. No Freeman shall be â—aken or imprisoned c. neither will we pass upon him nor condemn him but by the lawfull judgement of his Peers c. the grand and principal objection against the Lords Judicature in Cases of Commoners then by the self same reason they are their lawfull Judges and may regally proceed against them in all other criminal or Civil causes especially in cases of breach of their own Privileges wherein they are the sole and only Judges since no other Court can judge of nor yet punish them as Sir Ed. Cook resolves being properly triable only in Paâ—liament as contempt against all other Courts are punishable and triable by themselves alone the present cases of Lilburne and Overton Now that they are and alwayes have been so de facto unless by way of Bill of Attainder or in such extraordinary cases when their concurrence hath been desired even in criminal cases misdemeanors and offences of Commons as well as Peers I
against Judge Thorp should be brought into the Parliament and there read openly BEFORE THE LORDS to have every of their advice concerning it whether this Iudgement were legal or not et nullo contradicente all the Lords affirmed the judgement to be legal and good considering that he against his Oath received Bribes And therefore it was agreed by all the Lords that if the like case should hereafter happen the King might take to him such Nobles as he should think meet and therein do according to his pleasure Provided this judgement should not be drawn into example against any other Officers who should break their Oaths but only against those qui praedictum Sacramentum fecerunt of Justices et fregerunt et habent leges Regales Angl. ad custod Here the Lords were sole Judges of the Judge who was a Commoner and gave judgement against him without the Commons yea declare the Law in this new case both in and out of Parliament In the Parliament of 21 E. 3. n. 68. The Commons by divers Bills complained to the Lords of divers extortions grievances prejudices done to the King and Commons by John Wattenham and Walter de Cheriton Merchants who desired the King would command them to come before THE COUNCIL LORDS in Parliament to answer what should be objected and clear themselves In the Parliament of 50 E. 3. n. 17 18 19 20. The Commons accused Richard Lyons Merchant of London of divers deceits extortions and misdemeanors whiles he was farmer of the Customs and last subsidy for transporting wools and staple Commodities procuring new Impositions on staple ware for buying debts from the Kings Creditors at under rates and making the King to pay the whole for taking of bribes and defrauding the King To some of which charges he answered and to the rest submitted himself to the King touching Body Lands and Goods Whereupon THE LORDS adjudged him to prison during the Kings will that his lands tenements and goods should be seised to the Kings use that Commissions should issue throughout all England to inquire of his Extortions whiles farmer of the subsidies and that he should be disfranchised Upon this Judgement in the Fine Roll of 50 E. 3. m. 19 21 22. there issued out writs for the arresting and selling the goods of Richard Lyons to the Kings use which were his on the 19 of March certis de causis coram Nobis et Concilio nostro in praesenti Parliamento nostro propositis c. per Concilium in Parliamento The same Parliament 50 E. 3. n. 31 32. William Ellis of great Yarmouth was accused by the Commons of sundry extortions whiles he was Deputy Farmer of the kings subsidie to Richard Lyons To which he seemed sufficiently to answet yet was BY THE LORDS adjudged to prison and to make a fine at the Kings pleasure Ibidem Num. 33. Iohn Peach of London was impeached by the Commons for procuring a license under the Great Seal that he only might sell sweet wines in London by colour whereof he took 4 s. 4 d. of every man for every Tun thereof sold which he justified he lawfully might doe Notwithstanding JUDGEMENT was given against him by THE LORDS that he should be committed during the Kings pleasure and make recompense to all parties grieved Num 37. Adam de Bury was accused of divers deceits and wrongs done by him whiles Mayor of Callice and Captain of Bellingham Being sent for to come to the Parliament he came not nor could he be found Thereupon the Lords agreed that all his goods and chattels should be arrested and so they were All these Commons were first impeached by the Commons and thus judged and censured by THE LORDS in this GOOD PARLIAMENT as Historians and others stile it And in the Commons petitions therein there are divers Petitions of Grievances from sundry Counties Towns persons complaining of wrongs and grievances presented to the King and Lords for redresse of oppressions extortions Monolies c. In the Parliament of 1 R. 2. n. 41 42 43. Dame Alice Pâ—etrees was brought before THE LORDS by Sir Richard Scroop Knight and there charged for pursuing matters at the Court contrary to an Order made in the Parliament of 50 E. 3. n. 35. and procuring King Edward to restore Richard Lyons to his lands and goods c. she denied she pursued any such thing for singular gain against that Ordinance whereupon diverse Officers Counsellers and Secretaries of king Edward 3. were examined against her who proved she made such pursutes and that for private gain in their conceits Whereupon the Lords alone without the Commons gave Iudgement against her that she should be banished according to the order aforesaid and forfeit all her Lands Goods and Tenements to the King The same Parliament 1 R 2. n. 32 33. The Lords committed William Fitz-Hugh Goldfiner and Citizen of London to the Tower for refusing to averr a Petition exhibited by him in the name of the poor Commonalty of that mystery complaining against John Chichester and John Bolcham of the same mystery of divers oppressions done by them to the said Commonalty In this very Parliament of 1 R. 2. n. 38 39 40. The Commons prayed that all those Captains who had rendred or lost Castles or Towns 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 evil examples they had given to other Governors of Towns 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 behalf 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 several Articles and answers to them in writing read before THE LORDS Which done the Constable was commanded to bring them again 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 Onâ—herwycke to the Kings enemies without any duress or want of victuals contrary to his allegiance and undertaking safely to keep it and therefore the Lords above-named sitting in full Parliament adjudge you to death that you shall be drawn hanged But because our Lord the King is not informed of the manner of the Judgement the execution of it shall be respited till the king be thereof informed After which Judgement given
upon him nor condemn him but by the lawfull judgement of his Peers 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 self though it be in case of privilege To take away this grand seeming Objection and give it a satisfactory answer I say First in general that there is scarce one Parliament ever since Magna Charta was first confirmed but the Lords have sentenced and given Judgement against some Commoners capitally or penally in body 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 tyrannical usurpation as Lilburn and Overton stile it but acknowledged ir as a just right in the Lords even in 3 Caroli it self when the Petition of Right was passed in the Lords Judgement and Sentence against Dr Manwaring a Commoner impeached by the Commons in Parliament And therfore for this Ignoramus alone against the judgment of the Commons in Parl. in all ages to averr this a breach of Magna Charta for imprisoning and sining him for the highest affront and breach of privilege ever offered to any Parl. is the extremity of ignorance malice singularity Secondly I answer That the Statute of Magna Charta extendeth not to nor was ever intended of the high Court of Parliaments Judgements Proceedings but only to and of the Proceedings Judgements in the Kings great Courts of Justice at Westminster Hall the Exchequer his Privy Council and other inferior Courts held before Judges Justices of Assise and other Officers as is evident by comparing this objected Chapter with c. 11 12 13 14 18 28 30 34 37. by the Statutes of 25 E. 3. Stat. 5. c. 4. 28 E. 3. c. 3. 37 E. 3. c. 18. 38 E. 3. c. 9. 42 E. 3. c. 2. 17 R. 2. c. 6. and the Petition of Right it self 3. Caroli which so expound it there being never any complaint against the Parliament it self or House of Peers in any age for breach of Magna Charta in censuring or imprisoning Commoners till now Therefore this misapplying of this Law to the Parl. and House of Peers is a gross oversight Thirdly the very literal sence of this Law is much mistaken by the Objectors The main scope whereof is this That no man should be deprived of his Freehold Liberties Limbs life or outlawed exiled or otherwise destroyed without legal process in due form of Law in Courts of Justice not by meer force violence injustice arbitrary and tyrannical power or martial Law nor being brought to his legal trial or answer And that none should pass upon them in any trials for freehold or life but only English Freemen Now in respect of Freedom any every 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 estate as Knights Esquires Gentlemen Yeomen Citizens Merchants these as Freemen are all Peers one to another and may pass upon each other in Juries both in civil and criminal causes and this clause No Freemâ—n shall be imprisoned c. but by the lawfull judgement of his Peers extends only to villains and those who are not Freeholders from being Iudges of Freemen and Freeholders in trials by Jury whence the Writs to the Sherifs to summon Jurors require them alwayes to return Liberos Legales homines not to exclude Lords or Peers who are Freemen in the highest degree to be Judges of Commoners who are Freemen So as the Argument from the true meaning of this Law can be but this in respect of the persons quality who are to give judgement Villains and those who are no Freemen are not to be Judges of or impannelled in Juries to condemn Freemen because they are not their Peers nor Freemen as well as they Therefore Lords who are Freemen of the highest degree may not give judgement against Commoners who are Freemen Very learned nonsence We all know that the Lord Chancellor of England Lord Keeper Lord Treasurer Master of the Court of Wards and some of the Judges of the Kings Courts in Westminster Hall in former times with the Chief Justiciar and Justices in Eyre were antiently and of late too as the Earl of Holland and others Peers of the Realm not Commoners and that all the Peers of the Realm are in Commissions of Oyer and Terminer and of the Peace yet did we never hear of any Commoner demurring or pleading thus to any of their Jurisdictions in Chancery Kings Bench the Exchequer Chamber Eyres Assises or Sessions Sir I am a Commoner and you are a Peer of the Realm but no Commoner as I am besides you sit here only in the Kings right doing all in his name and representing his person who is not my Peer but Sovereign Therefore you ought not to judge my cause condemn my person nor give any sentence for or against me it being contrary to Magna Charta which enacts That no freeman should be judged or passed 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 Lilburn And if Lords Peers may judge the persons causes of Commoners in the Chancery Kings Bench Exchequer Court of Wards Eyres and at Assises Sessions without any violation of this clause in Magna Charta though they are exempted to be impannelled or serve in Juries in cases of Commoners as Commoners in Juries to try them much more may the House of Peers in Parliament doe it who are certainly Peers to Commoners as Freemen though Commoners be not Peers to them as Lords within the meaning of Magna Charta chap. 29. Fourthly If the Lords in Parliament cannot meddle with or give judgement in Commoners causes without breach of this clause in Magna Charta then why did Lilburn himself sue and petition to the Lords as the only competent Judges to reverse his sentence in Star Chamber and give him damages 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 express violation of this Law then himself in petitioning the Lords to relieve him against the Star-Chamber sentence because contrary to this very Law and Chapter of Magna Charta was a great a violator of it as his Star-Chamber censurers and his sentence in Star-chamber remains still unreversed because the Lords examining reversing of it they being no Commoners as he is but Peers was Coram non judice and meerly void by the Statute of 25 E.