8th who being a Member of the House of Commons and Imprisoned the House of Commons made an address to the King for his release when they could not do it by their own power Mr Speaker said I am to deliver unto you her Majesties commandement that for the better and more speedy dispatch of causes we should sit in the afternoon and that about this day sennight her Majesties pleasure is this Parliament shall be ended At a conference with the Lords their Lordships told the Commons they would not have their Judgment prejudicated and in that conference of the House of Commons stiled themselves the Lower House There was saith Justice Hussey a whole Alphabet of paenall Laws in the time of King Henry the 7th Mr Mountague said The praerogative Royall is now in Question which the law hath over allowed and Maintained Serjeant Heale speaking somewhat that displeased the Generality of the House they all made an humming and when he began to speak again they did the like whereupon the Speaker stood up and said It is a great disorder that this should be used for it is the antient use of this House for every man to be Silent when any one Speaketh and he that is Speaking should be Suffered to deliver his mind without interruption Sr Edward Hobby upon the debate of a bill brought in for the peoples more diligent repair to Church whether the Church-Wardens were the more proper to certifie the defalters said that when her Majestie did give us leave to chuse our Speaker She gave us leave to chuse one out of our own number Mr Onslow the Clark of the House of Commons in Parliament being Sick the House gave his man leave to officiate for him every Members contributing 12d apeice for his support In the case of Belgrave depending in the Court of Star-Chamber upon an Information brought by Sir Edward Coke her Majesties then Artorney General prosecuted by the Earl of Huntington for wearing his Livery to make himself a Member of the House of Commons in Parliament after several Motions Debates and Disputes in the House of Commons a Conference was concluded to be had with the Lords thereupon the rather for that it had been said that the Lords in Parliament were reported to have directed the said Bill to be exhibited in the Star-Chamber one of their House being concerned therein and a day appointed by the Lords accordingly which failing and revived again by a motion of one of the Members of the house of Commons in their own House and the matters limitted whereupon it should consist first touching the offence committed by Mr. Belgrave whether it was an Infringement of the Liberty of the House of Commons and for the first that the Commons would do nothing therein until a Conference with them for the 2d to know the reasons of their Lordships appointment of the Information and to bring it to some end Mr. Speaker at another day certifying a message from the Lords concerning some other matters Sir Edward Hobby said We attended the Lords that morning which was appointed touching the Information against Mr. Belgrave who in the end concluded that forasmuch as it concerneth them as the House of Commons Priviledges they desired some time to consult and they would send us word of their Resolutions and some days after a Copy of the Information against Belgrave was sent to the House of Peers unto them under the hand of the Clerk of the Star Chamber by them and Sir Edward Hobby with some Bills but nothing appeareth to have been done touching the said Information against Belgrave In the mean time a servant of Mr. Huddleston a Knight of the Shire for Cumberland being arrested in London upon a Writ of Execution the Plaintiff and Serjeants denying to release him because it was after Judgment they were upon complaint to the House committed to Prison the Serjeant released paying the Serjeant at Arms Fees and the Plaintiff paying them as well as his own was ordered to remain three days in the Serjeants Custody For a like Judgment was cited to have been given by the House of Commons in the case of the Baron of Wilton in that Parliament Upon Thursday December the 7th Sir Edward Hobby shewed that the Parliament was now in the wain and near ending and an order was taken touching the Information delivered to this house viz. the House of Commons in Mr. Belgraves case but nothing done therein and as it seemeth by not taking out the Process no Prosecution of the Cause is intended against the said Mr. Belgrave he thought it fit because the chief Scope of the said Information seemeth to be touching a dishonour offered to this House that it would please the House that it might be put to the question being the original and first horrid fashion of their afterward altogether course or manner of voting and making their own pretended Liberties whether he hath offended this House yea or no If he hath he desireth to be censured by you and if he hath not it will be a good motive to this Honourable House here present who are Judges in this Court and yet he might have remembred what long and learned debates and disputes there had lately been amongst themselves whether the Custom of that House was or had been in cases of grievance to proceed by Bill or Petition to the Queen and it was resolved that it was the most proper and dutiful way to proceed by Petition which was done accordingly in clearing the Gentleman of that offence when it came before them which had then no higher esteem in Sir Edward Hobbyes opinion than to be previous to an after disquisition which that Law and the Queens Writ and the Election of that part of the people that brought them thither neither did or could give them any greater authority than ad faciendum consentiendum to do and perform that which the King and Lords in Parliament should ordain to be done and performed and when all should be rightly considered was an offence too often by more than one or once since practised to procure a Membership indirectly in an House of Commons in Parliament committed by Mr. Belgrave that should as little have been countenanced as there was any just or legal Warrant for it wherein Mr. Comptroller said I know the Gentleman to be an honest Gentleman and a great Servant to his Prince and Countrey I think it very fit to clear him I wish it may be put to the Question I will be ready to vouch your sentence for his offence when it comes there but if any other matter appears upon opening the Cause with that we have nothing to do Mr. Secretary Cecil who had not long before said in the same House he was sorry to see such disorder and little do you know how for disorder this Parliament is taxed I am sorry I said not slandered I hoped that as this Parliament began gravely and with Judgment
that granted them and was to be vouched to warranty which was in common and ordinary matters very usual in our Laws and reasonable Customs and therefore to him only as the Grantor and Protector of their Parliament Priviledges and not to themselves the gratitude and acknowledment was only due And the House of Commons until this our present unruly Age or Century did not adventure to take upon themselves or endeavour by any pretended Authority of their own to punish any the violators of their aforesaid Priviledges but supplicated Aid of their Kings and Princes that were the donors and granters of them And therefore in the Raign of King Henry the fourth it was adjudged that as the Record witnesseth Videtur Cur. quod non For in Anno 8 H. 6. William Lark a Servant of William Wild Burgess of Parliament being arrested upon an Execution during the Parliament the Commons petitioned the King to give order for his discharge and that no Lords Knights Citizens or Burgesses nor their Servants coming to the Parliament may be Arrested during the Parliament unless it be for Treason Felony or Breach of the Peace The King granted the first part of the Petition Et quant al residue le Rei sa avisera The Commons prayed that Edmond Duke of Somerset Alice Poole the late Wife of William Poole Duke of Suffolk William Bishop of Chester Sir John Sutton Lord Dudley the Lord Hastings James de la Barre one of the Kings Secretaries and 20 or 22 Knights and Esquires particularly named amongst which was Thomas Kemp Clerk of the House of Commons which the Commons themselves and their own Clerk had not them found to be either a Liberty or Priviledge of their own to punish might be banished from the King during their Lives and not to come within twelve Miles of the Court for that the People do speak evil of them To which the King answered He is of his own meer motion contented that all shall depart unless only the Lords and a few of them whom he may not spare from his presence and they shall continue for one year to see if any can duly impeach them In Anno 31 H. 6. The Commons made a Request to the King and Lords that Thomas Thorp their Speaker and Walter Roil a member of their house who were in Prison might be set at liberty according to their Priviledges The next day after the Duke of York who was then a Rival for a long time but after a publick Competitor for the Crown and President of the Parliament came before the Lords not the Commons and shewed that in the vacation of the Parliament he had recovered damage against the said Thomas Thorp in an action of trespass by Verdict in the Exchequer for carrying away the goods of the said Duke out of Durham House for the which he remained in Execution and prayed that he might continue therein Wherein the Councel of the Judges being demanded they made Answer it was not their part to Judge of the Parliament which was Judge of the Law wherein surely they might rather have said what they should have most certainly have believed then as Sir Edward Coke did long after that the King was principium caput finis Parliamenti and only said that a general Supersedeas of Parliament there was but a special supersedeas in which case of special supersedeas every Member of the Commons House ought to enjoy the same unless in cases of Treason Felony Surety of the Peace or for a condemnation before the Parliament After which the Lords determined that the said Thomas Thorp should remain in execution and sent certain of themselves to the Commons who then had so little power to free themselves from Arrests and imprisonment as they could not deliver their own Speaker out of Prison but were glad to follow the direction of the King and Lords to chuse and present unto the King another Speaker the which they did and shortly after certain of the Commons were sent to the Lords to declare that they had in the place of the said Thomas Thorp chosen for their Speaker Thomas Charleton Esquire Walter Clark a Burgess of Chippenham in the County of Wilts being committed to the Prison of the Fleet for divers condemnations as well to the King as to others was discharged and set at Liberty at the Petition of the Commons to the King and Lords without Bail or Mainprise At the Petition of the Commons William Hill a Burgess of Chippenham aforesaid being in Execution in the Kings-Bench was delivered by a Writ of the Chancery saving the Plaintiffs right to have Execution after the Parliament ended It was enacted by the universal Vote and Judgment as well of the Commons as the Lords that John Atwil a Burgess for Exeter being condemned during the Parliament in the Exchequer upon 8 several informations at the suit of John Taylor of the same City shall have as many Supersedeas as he will until his returning home King Henry 8. in the case of Trewyniard a Burgess of Parliament imprisoned upon an Outlawry after Judgment caused him to be delivered by a Writ of Priviledge upon an Action brought against the Executors and a demurrer it was resolved by the Judges to be Legal George Ferrers Gent. servant of the King and a Burgesse of Parliament being arrested in London as he was going to the Parliament-house by a Writ out of the Court of Kings Bench in execution at the Suit of one White for the sum of 200 markes being the debt of one Walden which arrest being signifyed to Sir Tho. Moyle Knight Speaker of the House of Commons and to the Knight and Burgesses there an order was made that the Serjeant of the Mace attending the Parliament should go to the Compter and Demand the Prisoner which the Clerks and Officers refusing from stout words they fell to blows whereof ensued a fray not without hurt so as the said Serjeant was forced to defend himself with his Mace and had the Crown thereof broken off by bearing off a stroak and his Servant struck down which broil drawing thither the 2 Sheriffs of London who did not heed or value the Serjeants complaint and misusage so much as they ought but took their Officers parts so as the Serjeant returning without the Prisoner informed the Speaker of the House of Commons how rudely they had entertained him who took the same in so ill part that they all together some of whom were the Kings privy Councel as also of the Kings privy Chamber resolved to sit no longer without their Burgess but left their own house and went to the House of Peers and declared by the mouth of their Speaker before Sir Thomas Audley Knight then Lord Chancellor and all the Lords Judges there assembled the whole matter such no Estates they believed themselves to be who Judging the contempt to be very great referred the punishment thereof to
of Attorney which the after Clause Ira pro defiatu potestatis doth Intimate to be a thing so necessary as without it they might be rejected if it should be Insisted upon for surely the King that by his Writ for the Election gives the power and license to his Sheriffs to Elect Knights and Burgesses to come unto the Parliament is to have so much Controll and Power over it as to examine whether they were duly Elected and upon occasions of death undue Elections or other Incapacities to Cause new Elections to be made wherein although the House of Commons have in this our Century or an hundred years last past been willing to save the King and his Ministers of State a labour and upon the death or removall of a Member have usually sent their Warrant or Certificate to the Lord Chancellor or Keeper of the Great Seal of England or the Clark of the Crown for the Election of others the learned Lord Chancellor or Keeper Egerton scrupling such a kind of proceeding wished it might be otherwise and the President of Simon de Monforts Rebellious first institution of an House of Commons in his new unexampled kind of Parliament in the 49th year of the Reign of King Henry the 3 cannot be so racked or strained as to Warrant any such proceeding for even then when he was those Rebells prisoner for an Year and a Quarter they could not tell how to adventure upon such a kind of new and self authority yet it hath been by the permission and Indulgence of our Princes who have thereby too much given them the opportunity and advantage of making one evil action to be a Custom for all that have been but a little acquainted with our Laws and Records may without derogation to that part of the honourable Court of Parliament of which it hath been well observed and said in the Earl of Leicesters Case No man ought to Speak or think dishonourably of them believe that it is a matter particularly and especially only appropriate and belonging to the King and his Supreme authority and dignity and the Elections are so entrusted by the King to the care of the Sheriffs his Officers as in the Choice or election of Coroners or Verduters de assensu Comitatus by the assent or good likeing of the Common People of the County there is in the Conclusion of the Writ a Speciall Clause to Certifie the name of whom they had Chosen which if the King were not therein to give his allowance or refusall would be altogether Insignificant and to no Purpose And by his Sovereign power notwithstanding his approbation in such an Election it was never denyed to be lawfull and for the weal Publique that the King upon Information that the Coroner so Chosen was aliis detentus negotiis and could not attend the duty and employment of that office or was Surprized with a dead palsie or had not Laws Sufficient in the County or lived in the further part thereof so that he could not conveniently execute the said office or was elected Sheriff or a Verdurer in a forrest or that Quidam R. who was elected by the Sheriff de assensu ejusdem Comitatus was not a Knight as the statutes concerning the making or electing of Coroners directed and had not 5l per Annum Land of Freehold yet the Sheriff had elected him into that office to Command the Sheriff to chuse another in his Place de assensu Comitatus qui melius Scire possit ad illus intendere quod nomen ejus Scire faceret c. or when a Verdurer was adeo languidus semo confectus as he could not attend the execution of the office another should be elected in his place de assensu Comitatus nomen ejus scire faceret And it is not like to be any disparagement to the Judgement or knowledge of any man of the Law to acknowledge that the Writ of Conge de Eslire granted by the King to a Pryor and Covent to elect an Abbot or Dean and Chapter of a Diocess to elect a Bishop when the King hath before hand nominated the man by an especiall Clause takes care that he be regno Regi utilis fidelis and that after his election and the formality of the election by the Dean and Chapter dispatched there is a Writ de Regio assensu to Confirm that election followed by another to the Escheator to restore unto him the temporalities in the form following Rex dilecto fideli suo J. Justiciario suo Hiberniae salutem Cum dilecti nobis in Christo Decanas Capitulum Ecclesiae de B. vacante nuper Ecclesia sua praedicta per mortem bonae memoriae Lucae nuper Episcopi loci illius dilectum nobis in Christo M. J. Decanum Ecclesiae predictae in suum Episcopum elegerunt pastorem nobis per suas patentes literas Supplicaverunt ut Electioni Regium assensum adhibere dignaremur Nos licet idem Decanus Capitulum prius a nobis eligendi licentiam non postuleverint ut est moris volentes tamen eis hac vice gratiam facere specialem eidem Electioni Regium assensum Duxerimus adhibendum nolentes quod quamvis ipsi hujusmodi licentiam mini ne 〈…〉 runt molestentur in aliquo seu graventer volentes insuper eidem Electo ut ipsius parentur laboribus expensis gratiam facere uberiorem vobis dedimus potestatem quod si Contingat Electionem hujusmodi per loci Metropolitanum Canonicum Confirmari vobis inde per literas patentes loci ipsius Metropolitam nobis inde directas constiterit tunc fidelitatem ipsius Electi nobis debitam in hoc parte nostro nomine recipiatis ei temporalia Episcopatus illius prout moris est restitui faciatis vice nostra receptis prius ab Episcopo Electo literis suis factis Sigillo suo sigillo Capituli sui Signatis quod gratia nostra quam eidem Electo ad praesens ex mera liberalitate nostra fecimus nobis vel haeredibus nostris non Cedat in praejudicium c. T. c. And may remember that when the Papall Clergy were Culminated in their highest Zenith under the domineering power and Insolency of the Popes their Incouragers and Protectors and so high as upon the vacancy of Bishopricks or other dignified Ecclesiastick preferments they that sought for those places would hasten to Rome nd get Bulls of investiture from the Pope upon the Kings unwilling recommendation which though a politick fear had made King Henry the 8. for a Time to Condiscend unto yet he was Carefull to make the party so preferred to appear at his return before him either in person or by proxy and renounce every Clause in the Popes Letters or Bulls that might prove derogatory to his Crown and Prerogative or the Law of the Land and Swear Fealty and Allegeance unto him and thereupon Writs were ordered to be
records or Historians or even of our Neighbor nations find or make any but Fools or Knaves or Criminals of the highest nature believe that any Law was ever made in England or concerning any part of its dominions or teritories without their Kings regal Assent Will or Dictate untill that House of Commons made that most damnable ever to be abhorred wicked Vote or Order which they would have called a Law for the Murder of K. Charles the First Two of the principal Contrivers whereof Cromwell and Bradshaw have since had their Carcasses by a just Judgment of God thrown and buried under Tyburn a Common place of Execution for Theeves and Traytors the worst of Criminals and Malefactors in mankind but lest the over hast of the designs of those that would make a gain thereby should Gallop them into Errors of no small dangers or mischiess to the publique they may be pleased to take a little breath pause and consider the true meaning acceptation and extent of the words Constitute Convince Colloquium so often and necessarily used in the Writs and Mandates of our Kings and Princes in summoning or calling a part of their subjects unto their great Councels or Parliaments For Constituere convenire Significat conveniendo obligat se ad id quod jam debitum est sic constituere pecuniam est jam ante debitam absque stipulatione promittere Theophil in Sect de const non solum pro alio sed pro seipso quis recte constituat Sect. de constitut inst de act debitum autem oportet esse quod instituitur constituere possunt qui bona vel peculia habent cum libera administratione Gad. l. 182. de verb. res Signif constituimus nudo consensu eoque sufficiente ad actionem producendam Sect. 9. de just act constituere in dignitate munere Briss. ex F. C. constituere quaestionem est decernere ut judicetur Constitutio in generali nomine dicitur jus quod a principe conditur Theophil Sect. F. de jur natur Constitutum i. e. decretum Constitutus dies dies praefinitus Lex Lengobard si talis causa fuerit quam deliberare minime possit paenas constituat distringat hominem illum de judiciaria sua i. e. diem constituit lib. 1. 2. tit 21. And it was the duty and interest of the Commons Elected to come unto Parliament to consent unto such things as the Lords of whom they held their Lands and stood in great awe of to gain their loves or avoid their ill-wills should advise which with their Oath of Allegeance to the King their Superior Lord and their Homage and Fealty done to the Mesne Lord might perswade them to be as unwilling to forfeit their Lands as they would be to injure their Judgments and Consciences And though in some of the Writs for the wages of the Commons in Parliament assembled it hath by the mistaking or inadvertency of Clerks been sometimes said that they came and tarried ad consulend tractand yet the Tenor and intention of the most part of the Writs of Election for the Commons have been since the 21st Year of the Reign of King Edward the 1. as many as almost 20 for every one in the purpose Tenor and commanding part of it no more then ad faciend consentiend and sometimes ad loquendum and at another time ad audiendum faciendum upon which and no other account they came thither and were returned as Subjects not King-makers Law-makers Governours Disposers or Deposers and whilst they remained there or in veniendo redeundo and tarried at home were nor could be no otherwise then Subjects And in that and no other manner certainly did King Edward the 3d understand it when in a Parliament holden by him at Westminster in the 45th Year of his Reign there had been a great mistaking in the designed manner of levying an aid granted to the King of 22 s. and 3 d. out of every parish of England as hath been before mentioned Upon the examination whereof after the Parliament was dismissed the King and his Privy-Councel finding that that rate upon every Parish would fall much short of the summ intended and not supply the publique occasions did by an extraordinary special Writ directed to the Sheriff of every County command them to Summon only one Knight Citizen and Burgess of each County City and Borough serving in that Parliament especially named by the King in those Writs to avoid trouble and expences to appear at a Councel to be holden at Winchester to advise how to raise the intended summ of Money and directed the Sheriffs to enquire and return the number and names of all the Parishes Churches Chappell 's and Prebendaries within their respective Counties in the hands as well of Lay-men as of Clerks and Religious persons who accordingly meeting in the said Councel of Winton which continued sitting but 9 days as the Writ for the Knight of Southamton expresses and for Sussex Berks Oxon Wilts only for 11 days and to others in like proportions each of those Knights Citizens and Burgesses though they received their expences for going to tarrying at and returning from the Parliament at Westminster which granted that aid to the King and were specially again Summoned to that Councell to rectify their great mis-calculation in the aid intended and number of Parishes had their expences by the Kings Writs allowed unto them for that purpose for repairing to continuing at and going home from that Councell and in that and no other sense or manner did the Commons in that Parliament understand it Neither did the Commons in Parliament when upon the grant of the Lords in Parliament in the 13th year of the Reign of that King of the 10th Sheaf of all the corn in their demesnes except that of their bound Tenants the 1â—th fleece of wool and the â—0th lamb of their own Store to be paid in 2 years They made answer that they knew and tendred the Kings estate and were ready to aid the same only in this new device they durst not agree without further conference with their Countries and so praying respite untill another time they promised to travell their Countries think themselves to be Kings or Sovereigns over their fellow-Subjects or that they themselves were any other then Subjects And Sr Edward Coke having affirmed it to have been as it were a Law or Custom of Parliament hath likewise informed us that in the 42 year of the Reign of that King it being declared to the Parliament by the Arch-bishop of Canterbury that in a Treaty between the Kings Councel and David le Bruce of Scotland the last offer of the said David was that he was willing to have so as he might freely enjoy to him in fee the whole Realm of Scotland without any subjection or any other thing which might be accompted a perpetuall charge concerning which the Lords and Commons being willed to give their advice
be done for the shortness of time Eodem Anno Pray the Commons that where a man is attainted at the Suit of the Party for Trespass done against the Peer and the Trespasser taken and let by the Marshal and his Marshals to Mainprise or at large they be charged with the Damages To which the King answered To put an Issue to this Article in manner as they pray it would be to make a new Law the which the King is not advised yet to do The Commons do pray That the Issues and Amerciaments of the Green Wax be certainly expressed in the Estreats and that the Sheriffs be allowed in their Accompts for the Hundreds granted from the Crown which Petitions were referred to the next Parliament for that the King had no leisure or no intent to make Statutes thereof at any time The Roll of the Parliament of 34 E. 3. is lost In the 17th year of the said Kings Raign the Commons do pray the King to desire the Parliament to consider how he might gain the Arrears of the first year and be put in a way for to gain the second year of the said Aid with less grievance to the People But the Lords and Commons were so exasperated by the Excommunication threatened by the Archbishop of Canterbury against them all because the King would not admit him into the Parliament and that they required a Declaration to be first made and agreed upon that the Peers of the Land whether Officers or not be not bound to answer the Kings Suit but in Parliament and it was a whole week before the King would agree unto it All which time the Archbishop demanded entrance standing upon his right as primus Par Angliae and required to be admitted upon pain of Excommunication At the last the said Declaration being first agreed upon by a special Committee of the Lords the King granted it and presently upon the same day the Archbishop was admitted who demanded Tryal by his Peers But as touching the Aid for the King the Lords and Commons incensed by the Clergy flatly answered that if the conditions of the grant in Anno 14. were not performed they would pay none After which the Laity and the Clergy exhibited their Petitions as the manner then was severally but petitioning the one for the other as they never did since or before except in Anno 25. E. 1. when the Popish Clergy had put that great and Victorious King also to the like plunge and their Petitions being answered by the Kings Councel who were the standing Committee for that purpose but the Lords and Commons disliked thereof and obtained a Special Committee of themselves to consider of the same which being reported and well liked a Statute was made thereupon by a Committee of the Grands and Commons which being read before the King and Sealed with his great Seal and delivered to the Grands and Commons divers of the Kings Councel as the Treasurer some of the Justices of both Benches the Steward of his House and the Chamberlain were sworn upon the Cross of Canterbury to observe the same as much as to them belonged but yet the said Councellors Treasurer and Justices made their Protestation that they assented not to the making of the said Statute nor to the form thereof neither could they keep the same if they were contrary to the Laws and Usages of the Realm which they were sworn to observe which disorderly Parliament ending in May and the King intending not to suffer the said Statute to be put in Execution summoned his great Councel to meet at London in July following to Repeal the same but there were so many of the Praelates called thereunto although the Archbishop was omitted that he could not effect his desire therein wherefore he summoned another great Councel to meet at Westminster about Michaelmas following whereby the Assent of the Earls Barons and other wise men not warning any Praelates the said Statute was repealed In which Statute so Repealed there will appear to have been many inconveniences both to the King and his People if it had continued in force The 2d Chapter whereof touching Tryal by Peers swerved very much from the true meaning of Magna Charta cap. 26. Nullus liber homo c. For that appointeth his Tryal to be by his Peers but restrains it not unto any place whereas this limits the Tryals of the Peers of the Land to be in Parliament only which would be very inconvenient to the King to wait for a Parliament for every Offence and very troublesom to the Commons to be so often troubled thither and no way beneficial for the Temporal Lords for they whether in Parliament or out of Parliament were ever to be tried per Nobiles Pares The 4th Chapter had Clauses that the King should place New Officers when they fall but by accord of the Grands which shall be nearest in the Country which is directly against the dignity of the King to be thus limited in the choice of his Officers and prove as inconvenient to the Subject if those Grands should not be men of Merit That the King shall take all Offices except the Judges c. into his hands the 3d day of every Parliament and the Officers be put to answer every complaint and if they be attainted shall be judged by the Peers in Parliament and the King shall cause Execution to be pronounced and be done accordingly without dclay which is altogether unjust and against all Right and Reason and against the Law to put any man out of his place before Judgment and Conviction and against the Right and Dignity of the Crown to bind the King to Execute the judgment of the Peers And it is observable that it was not in the Petition but was added afterwards by the Committee who drew up the Answer to the same and so was the 4th Clause penned by the said Committee much more beneficial for the Subjects than was in the Petitions or Answers Which particulars well considered no man can blame the King for his dissimulation at that time and his Repeal of that Statute In the Parliament of 18 E. 3. where the King having summoned a former Parliament in the year before and therein pacified the Lords and Commons so well as they all agreed that the said Statute made in the 15th year of his Raign should be Repealed and taken away and loose the name of a Statute for as much as it is prejudicial and contrary to the Laws and Usages of the Realm and to the Rights and Praerogatives of the King But for that some Articles were comprised in the said Statute which were reasonable and according to the Law and Reason It was accorded by our Lord the King and his Commons that of such Articles and others accorded in this present Parliament a new Statute be made by the advice of the Justices and other Sages and held for ever And no Statute being made the Commons prayed
the Reign of King Henry the 3d included in the King and the Lords Spiritual and Temporal the Tenants and Knights Fees of the Lords Temporal and Spiritual not a few were not represented when with those and their dependancies they so over-powered King H. 3. in a Parliament at Oxford as to inforce him to yield unto those Provisions which afterwards proved to be the fatal Incentives of an ensuing bloody War and the Seminary of many Commotions and Contests betwixt some of our Succeeding Kings and their Subjects in their after Generations those only excepted being Tenants Paravail who held their Lands subordinately of the Tenants that were mean to those that held their Lands of the Lords Spiritual and Temporal the Majores Barones holding of the King in Capite with multitudes almost innumerable of Copy-holders Lease-holders Tenants at Will or Sufferance Villani or Bordarii le menu peuple et de busse condition were exempted by Order of Parliament as represented by them and no other and always used to be so the almost numberless Herd of Monks Fryers and Religious Persons and their Revenues Servants Tenants and Dependants were not nor could be represented but freed by the Kings Orders in Parliament from payment of the Commoners Wages that came to Parliament by two several necessary sorts of Priviledges and Immunities instead of many more which they claimed the Religious and Monastick People of the Nation with their very large Possessions and Revenues before the dissolution of them in the Reign of King Henry the 8th and King Edward the 6th being rationally to be accounted little less than a full 4th part of the Lands of the Kingdom the Secular Clergy always giving Subsidies apart by themselves being almost 10000 were represented by the Bishops or Convocation of the Clergy the Tenants in Antient demesne or of the great number of the Tenants of the Kings Annaent demesne proper and largely extended Royal Revenue that should be which before they were Granted or Aliened away by our Kings like Indulgent Common Parents to their almost every days craving Subjects and People or in Rewarding and Incouraging publick and great Services done or to be done for the Common-wealth or Publick good which were very large and diffusive through all the parts of the Nation and the Clerks of the Chancery Beneficiate as most of them Antiently were and the Judges Kings Council and Officers attending the Honourable House of Peers in the like condition and should be exempted although by length of Time Custom Indulgence or Permission they have been since the Original of the House of Commons in the 49th year of the Raign of King Henry the 3d. which was then no more than our Embrio and from thence discontinued until the 22d year of the Raign of King Edward the first charged and made contributary to publick Aids and Necessities and the largely Priviledged County Palatine of Lancaster having heretofore comprehended in it the three great Earldoms of Leicester Derby and Lincoln with their largely extended Revenues was not at the first represented but did forbear the sending of Members the remainder whereof is now a great part of the Kings Revenue the whole County Palatine of Chester with Wales and its Provinces had none until the Raign of King Henry the 8th nor the County Palatine of Durham and the Burrough of Newark upon Trent until some few years ago Arch-bishops Bishops Abbots Pryors Religious Men and Women and all that have hundreds of their own as very many have by Grant from the Crown are by the Statute of 42 H. 3. exempted from coming to the Sheriffs Torn or County Court and so not intended to be Electors or Elected The Kings very large should be Demesne Lands and Crown Revenue and that of the Lords Spiritual and Temporal and the many other before mentioned exempted And the Records of the House of Peers in Parliament have often told us that many times when the Commons gave Subsidies they did it by the Assent of the Lords Spitual and Temporal And as a very Learned Divine of the Church of England there being many Pseudo-Protestant Divines that are not of it hath well remarked there is no Subject of the Kingdom of England represented in Parliament by the Commons thereof but as subordinate to the King and to join with him and the Lords in their As-Assent and Approbation not against him or either of them in our Kings and Soveraign Princes making of Laws for the good of the Kingdom For Repraesentare is no more than locum implore autoritate vel vicaria potestate 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ita iotis est exhibere vi quà dam juris praesentiam ejus qui revera non est Budaeus definit esse repraesentationem per figuram facere imaginario visu rem ipsam repraesentare locum implere loco sistere loco praesentis sistere repraesentatio quaedam imaginaria And being but Commissioners special Attorneys or Procurators of some part of the Lay-Commonalty and Freeholders not of the Copy-holders Lease-holders Villains or Bondmen Servants or Apprentices could not by their Indentures Letters of Attorney or Procurations with any reason truth understanding or propriety of speech be believed to represent for them that never delegated or authorised them or to Act beyond the purpose or design of those that Elected sent or imployed them nor can make it to be any thing more than an aenigma or Riddle with some hidden and inveloped sense or meaning not to be comprehended in the genuine obvious or proper meaning sense or construction of the word Repraesent for who can without a great weakness failing or Error in his Judgment think that they could by any tentering or straining of the word make all the several kinds of people that sent them in obedience to the direction of their Kings Writs or Orders to impower them whilst they sate in the House of Commons in Parliament to Sentence Condemn Fine Arrest Imprison Banish or Sequester any of those that they pretended to represent when the Praedecessors of those that would be Masters of such a Latitude did in Parliament in the 42d year of the Raign of King Edward the third when a Tax or Aid was proposed for the King being the first and only end for which they were elected and sent make it their request to the King to give them leave to go home to their several Countries and places to advise before hand with those that sent them Otherwise the Pledges or Sureties which every Member of the House of Commons being to give their County and place whom they would represent as their Procurators or Attorneys are to be well heeded and cautiously taken for pledges or security well watched in their doings and not left to trick and purchase to themselves by unlawful Encroachments an Arbitrary and Illegal Soveraignty which the Laws of the Land never allowed them and their Masters the Counties and places that sent them
Conscience And may be likewise very prejudicial to the very ancient and honourable House of Peers in Parliament for these and many more to be added Reasons viz. Former Ages knew no Bills of Attainder by Act of Parliament after an Acquittal or Judgment in the House of Peers until that unhappy one in the Raign of King Charles the Martyr which for the unusualness thereof had aspecial Proviso inserted That it should not hereafter be drawn unto Examples or made use of as a Presidâ—â—t And proved to be so fatally mischievous to that blessed King himself and His three Kingdoms of England Scotland and Ireland as he bewailed in his excellent Soliloqâ—â—es and at his Death his consenting to such an Act and charged His late Majesty never to make Himself or â—is People to be partakers of any more such Mischief procuring State Errors The House of Commons if they will be Accusers wherein they may be often mistaken when they take it from others and have no power to examine upon Oath wild and envions Informations and at the same time a part of the Parliament subordinate to the King will in such an Act of Attainder be both Judge and Party which all the Laws in the World could never allow to be just And such a course if suffered must needs be derogatory and prejudicial to the Rights and Priviledges and Judicative Power of the Peers in Parliament unparallelled and unpresidented when any Judgments given by them shall by such a Bill of Attainder like a Writ of Error or as an Appeal from them to the House of Commons be enervated or quite altered by an Act of Attainder framed by the House of Commons whereby they which shall be freed or absolved by their Peers or by that Honourable and more wise Assembly shall by such a back or by-blow be condemned or if only Fined by the House of Peers may be made to forfeit their Estates and Posterities by the House of Commons or if condemned in the Upper House be absolved in the Lower who shall thereby grow to be so formidable as none of the Peerage or Kings Privy-Councel shall dare to displease them and where the dernier Ressort or Appeal was before and ought ever to be to the King in his House of Peers or without will thus be lodged in the House of Commons and of little avail will the Liberty of our Nobility be to be tryed by their own Peers when it shall be contre caeur and under the Control of the House of Commons Or that the Commons disclaiming as they ought any power or Cognisance in the matters of War and Peace should by a Bill of Attainder make themselves to be Judges and Parties against a Peer both of the Kings Privy Council and Great Council in Parliament touching Matters of that Nature For if the Commons in Parliament had never after their own Impeachments of a Peer or Commoner Petitioned the King to pardon the very Persons which they had Accused as they did in the Cases of Lyons and John Pechie in the 51 year of the Raign of King Edward the Third whom they had fiercely accused in Parliament but the year before the Objection that a Pardon ought not to be a Bar against an Impeachment might have had more force than it is like to have Neither would it or did it discourage the exhibiting any for the future no more than it did the many after Impeachments which were made by the Commons in several Parliaments Kings Raigns whereupon punishments severe enough ensued For if the very many Indictments and Informations at every Assizes and Quarter Sessions in the Counties and in the Court of Kings-Bench at Westminster in the Term time ever since the Usurpation and Raign of King Stephen and the Pardon 's granted shall be exactly searched and numbred the foot of the Accompt will plainly demonstrate that the Pardons for Criminal Offences have not been above or so many as one in every hundred or a much smaller and inconsiderable number either in or before the first or latter instance before Tryal or after and the Pardon 's granted by our Kings so few and seldom as it ought to be confest that that Regal Power only proper for Kings the Vicegerents of God Almighty not of the People hath been modestly and moderately used and that the multitude of Indictments and Informations and few Pardon 's now extant in every year will be no good Witnesses of such a causelesly feared discouragement And it will not be so easily proved as it is fancied that there ever was by our Laws or reasonable Customs anâ— Institution to preserve the Government by restraining the Prince against whom and no other the Contempt and Injury is immediately committed from pardoning offences against Him and in Him against the People to whose charge they are by God intrusted Or that there was any such Institution which would be worth the seeing if it could be found or heard of that it was the Chief to be taken care of or that without it consequently the Government it self would be destroyed To prove which groundless Institution the Author of those Reasons is necessitated without resorting as he supposeth to greater Antiquities to vouch to Warranty the Declaration of that excellent Prince King Charles the First of Blessed Memory made in that behalf when there was no Controversie or Question in agitation or debate touching the power of pardoning in his Answer to the nineteen Propositions of both Houses of Parliament wherein stating the several parts of this well regulated Monarchy he saith the King the House of Lords and the House of Commons have each particular Priviledges Wherein amongst those which belong to the King he reckons the power of pardoning if the Framer of those Reasons had dealt fairly and candidly and added the Words immediately following viz. And some more of the like kind are placed in the King And this kind of excellently tempered Monarchy having the power to preserve that Authority without which it would be disabled to protect the Laws in their Force and the Subjects in their Peace Liberties and Properties ought to have drawn unto him such a respect and reverence from the Nobility and Great Ones as might hinder the Ills of Division and Faction and cause such a Fear and Respect from the People as might impede Tumults and Violence But the design being laid and devised to tack and piece together such parcels of his said late Majesties Answer as might make most for the advantage of the Undertaker to take the Power of Pardoning from the Prince and lodge it in the People and do what they can to create a Soveraignty or Superiority in them which cannot consist with his Antient Monarchy and the Laws and reasonable Customs of the Kingdom the Records Annals and Histories Reason Common Sense and understanding thereof the long and very long approved usages of the Nation and Oaths of Allegiance and Supremacy of those that would now not only