THE COMMONERS LIBERTY OR THE ENGLISH-MANS BIRTH-RIGHT COKE INST 2. PAG. 56. If any by colour of any authority where he hath not any in that particular case arrest or imprison any man or cause to be arrested or imprisoned this is against this Act viz. Magna Charta cap. 29. and it is most hatefull when it is done by countenance of Justice Ibid. pag. 56. L exest tutissima cassis Ibid. pag. 161. Dormiunt aliquando Leges moriuntur nunquam LONDON Printed for R. Royston at the Angel in Ivie-lane 1659. THE COMMONERS LIBERTY OR The English-man's Birth-right 1. THE Subjects of this Kingdom have ever esteemed amongst earthly blessings the greatest to have consisted in the due administration of Justice and therefore have on all occasions had recourse to their Princes for the confirmation and right execution of their Lawes the undoubted birth-right of every Englishman the surest sanctuary any can take and the strongest fortresse to protect the weakest 2. This made Aldred Arch-bishop of Yorke at the Coronation of the Conquerour take a solemne Oath of him That aequo jure Anglos quo Francos tractaret And the people still call for their old customes the Lawes of S. Edward and such like even to the granting of Magna charta by King Iohn quae ex parte maximâ leges antiquas regni consuetudines continebat And these are those we now call the Common Law which is no other then the common Custome of the Realme which is seldome at any time changed or taken away without some notable damage to the people 3. One of these ancient Customes is That no Freeman of England should be tryed or proceeded against nisi per legale judicium parium suorum by his Peeres that is his equals such who either in respect of his Nobility is of the Lords House or if he be Commoner of such as is capable of being of the House of Commons at least unlesse some Law have disabled him 4. The Originall of this Custome in England is for ought I know as Ancient as any Triall in this Nation no doubt long before the Conquest and since that time amongst the Lawes of Henry the First which were apparently for the most part drawn from the Customes of the Kingdom we find them speak as an undoubted Maxime that Unusquisque per pares suos judicandus est ejusdem Provinciae we now say de Vicineto peregrina vera judicia modis omnibus submovemus and in those times a man might challenge whom and as many as he would Iudices non debent esse nisi quos impetitus elegerit which must be understood for the tryall by Jury for other Judges as the chiefe Justice c. he might not except against According to this William de Brauce Anno 1208. affirmed he was ready to satisfie the King secundum judicium Curiae suae Baronum parium meorum saith he which was before Magna Charta And this Custome thus antient was at the first establishing of Magna Charta confirmed by expresse words in the 29. Chapter and ever since taken as a great injurie when any hath otherwise been proceeded against K. Iohn soon after the first grant of the Great Charter had recourse to the Pope against the Barons who takes notice their tryall ought to be in curia sua per pares eorum secundum leges consuetudines regni An. 1227. King Hen the 3. urging his brother to deliver a Mannor of his to one Waleran The Earl answered the Mannor belonged to him yet he was ready Curiae regiae subire judicium Magnatum terrae At which the King being very angry told him if he persisted in the refusal he should leave the Kingdome who with great resolution answered he would not sine judicio Parium suorum So An. 1234. one of the reasons the Earl Mareschall gives for his taking up of armes was that the King had severall times defied him cum semper saith he paratus essem in curia juri parere stare judicio parium meorum By all which and many more Examples which for brevity I here omit it hath ever been held an undoubted injury when any hath been proceeded against otherwise then per Pares in such cases as were of their cognizance 5. Some of the grounds of reason for avoiding all partiality on which this is built I shall hereafter touch though I can adde nothing to that is so learnedly done by other men Yet it will not be here amisse to shew that this ancient and fundamentall way of proceeding hath been never in any kind altered but to the intollerable detriment of the Subject The cause of making the Statute of 3 Hen. 7. cap. 1. is said to be for that by severall enormities in untrue demeanings of Sheriffs in making of Panells and other untrue returns little or nothing could be found but divers were almost utterly destroyed c. And therefore it doth enact that certaine Councellors there named should upon Bill or Information call before them the said misdoers and examine them and others by whom the truth might be knowne and to punish such as they should find defective after the forme and effect of Statutes thereof made c. Yet how intoller able a burthen the proceedings Censures Decrees of the Star-chamber were found to the Subject and the meanes to introduce an Arbitrary power every mans memory reacheth to and the Act for abolishing it sufficiently declares The 11 H. 7. cap. 3. authorized Iustices of Assize and of the Peace upon a bare information without any finding or presenting by verdict of twelve men to heare and determine all offences by colour of which Act shaking saith Sir Robert Coke the Fundamentall Law it is not credible what horrible oppressions were committed c. I might here remember the 31 H. 8. cap. 8. and the 34 H. 8. cap. 23. which altering that ancient and knowne try all by Jury were not long lived being both repealed the 1 E. 3. cap. 12. nor could the King by them work that Reformation he expected And whereas it is objected There must somewhere be an Arbitrary power I grant some must judge whether Laws to be made are for the good government of a Common-wealth that is the Parliament but not in the executing of them For Cum leges institutae fuerint non erit liberum arbitrium judicare de ipsis sed oportebit ipsum judicare de ipsas 6. Under this impartiall way of distributing equall justice to all men in receiving which certaine it is reasonable the highest Duke should be levell with the lowest beggar and is for ought I know the chiefest Levelling aymed at the Subjects of England have enjoyed great Peace and happynesse ever strugling against the exercise of any arbitrary power whatsoever But now of late when we are freed of the Star-chamber c. there is an opinion raised by some Grandees who are feared to
or hereafter shall be may be never held nor charged to give judgement on other then on their Peeres neither shall the Peeres of the Land ever have power to doe it but shall be for ever discharged and quitted from the doing of it And that the aforesaid judgments now rendred shall not in the future be drawne into example or consequence for the charging the said Peeres hereafter to judge other then their Peeres against the Lawes of the Land if the like case should happen which God forbid 9. I professe for my part I cannot imagine how it is possible for any thing to be penned more fully being a plaine Declaration what they had done was against Law and a provision for the future But because a learned Gentleman hath of late made an artificiall Discourse to blinde the world and take off the force of this Act of Parliament for such it was it will be necessary to examine what he opposeth against it 1. That this is no Act of Parliament but a bare Protestation without the Kings or Commons Assent And yet it is expresly said to be Assented to by our Lord the King and all the great Ones in full Parliament I desire to know whether any thing can passe in full Parliament to which the Commons are not Parties For the being but a bare Protestation the Title shewes the contrary which calls it an Accord which is a Compact an Agreement not of one party that dissents from others but of all parties concluding together what the Law is such a Compact or Agreement is a Law That the House of Commons nor the Commoners then Iudged ever demurred or excepted against the Lords Iurisdiction c. And yet it is plaine it was Assented unto by the King and Lords c. I shall desire to know of him whether ever any Assented to that no man desired Certainly some excepted against what was then done themselves could not for they agreed it should be so no more it must therefore necessarily follow the House of Commons or the Parties themselves did it and this may serve For that he saith a little after that this Protestation was meerely voluntary it should seeme then the Judgement given by the Lords was not voluntarily the King over ruling them And this Protest if it be no more is an exception against it somewhere 2. The Lords in that do professe and justifie their right of being Iudges in Parliament Which is not denyed the King and them in some cases but they doe likewise professe that it extends not to a Commoner 3. That this was that they might not be constrained by the Kings Command against their wills in his presence to give Iudgement in ordinary cases of Treason or Felony in the High Court of Parliament against such that by Law might and ought to be Tryed in the Kings Court at Westminster c. but onely in such cases which could not well be Tryed elsewhere c. This is in effect what lie sayes To which I am forced to desire him to tell me what those cases are that now cannot well be Tryed elsewhere And whether there are now in our Law any such cases as the Canonists and Casuists call casus reservati That cannot be Tryed by the ordinary Judicatories of the Law but must have recourse back to the Legislative power to be ventilated there ex post facto our Law being now a better disputed more compleat comprehensive Law then it was in Edw. 3. Raign This I should be glad to know from some that understand the Fountain and Reason of our Law as well as the Letter It is certaine that for above 200. years there is no example of proceeding against any Commoner in the House of Peers but by Act of Parliament during which time there was none of those cases fell out that could not well be Tryed elsewhere but by Judgement in the Lords House Whatsoever is an offence is punishable by Law and ought to be Tryed in His Majesties ordinary Courts of Justice The Statute of Marlebridge provides quod tam majores quam minores justiciam habeant recipiant in Curia domini Regis And to think that any one House or both which are not a full Court without the King hath power Arbitrarily to punish one no Member of their owne for that the Law takes not notice of to be a fault I know not how well it agrees with the rules of Justice and how farre distant from that so much complained of Arbitrary Power which I shall never think a Court of Parliament will ever desire to have or exercise whose jurisdiction the more high and absolute it is the more just and honourable ought the proceedings in it to be and to give example of Justice to other inferiour Courts for their being not constrained to give Iudgements against their wills c. That is true but it is likewise that they should never have power to doe it and an affirmance what they had done was against the Law of the Land 4. He affirmes this Protestation to have been made onely against the Lords giving Sentence in Felony and Treason and in the Kings owne presence who usually pronounced Sentence Himselfe with the Lords assent and did not charge to give it as here He did not against Sentencing Fining and Imprisoning any Commoner for railing and libelling against their Persons Iurisdictions and Proceedings c. All this hath no colour out of the Record or practice of other times and it being certain there was then Crime but onely Treason mentioned in that Act or Protestation as he calls it why is it not as well to bar their giving Judgement against a Commoner in other Causes as Felony which himself confesseth it reacheth to ubi lex non distinguit nec nos debemus distinguere For the Kings giving Judgement in Parliament with the Lords Assent I doe confesse Judgements there ought to be properly and punctually entred as given Par nostre Seignieur le Roy que est Soveraigne Iuge en toutz cas par les Seignieurs spirituels temporels avel ' assent de les comes de laterre ou a lour petition nemy par les Seignieurs temporelx seulement That is by our Lord the King who is Soveraign Judge in all Causes and by the Lords Spirituall and Temporall with the Assent of the Commons or at their Petition But it doth not follow that if otherwise they are invalid it being certaine there be many Judgements generally entred as given in the Kings presence by the Lords Spirituall and Temporall and that not held to be any cause of Exception Compare Rot. Parl. apud Lecest. 2. H. 5. nu 16. with Parl. apud Westmin nu 13. See likewise the Judgements against the Spencers 21 R. 2. nu Rot Parl. For Lilburnes and Overtons Railing and Libelling against the Persons and Jurisdictions of the Lords for my part I shall say nothing having not taken upon
in the printed Book The gentleman cites this President I entreat him to peruse the Roll again and tell me if there can be possibly one more punctuall against the Lords judging a Commoner A servant attending a Member comming to Parliament is wounded The Lords and Commons doe not so much as attempt to Try and Censure the doer of it and the Judgement given is by Act of Parliament lesse then what both Lords and Commons hold but sufficient And the Party is allowed his Tryall by Jury in an ordinary Court of Justice 13. The 28. Hen. 6. The Commons impeached the Duke of Suffolk who waived his Peeres and the King gave Judgement but during the sitting of that Parliament The Lords being assembled in the Star-chamber in Councell the 28 of Novemb. Will Talboyes Esquire and others arrayed with Iacks Salets Swerds and Glaives in manner of Warre attempted to have slaine one of the Lords of Parliament and of His Majesties privy Councell there Assembled which being one of the most odious riots had been seen in the Kings time The Commons then sitting declare their detestation of the fact and impeach the said Talboyes and desire he may being then imprisoned in the Tower of London remaine there for 12 moneths and to answer the same in His Majesties Court in presence of his Justice but the thing desired being not altogether according to the course of the Common-law the Subjects undoubted birth-right was denied by the King and stopt and no proceedings against him in Parliament ever thought on I should be tedious to repeat the Examples of Murthers Riots Rapes and other misdemeanours complained of in Parliament and yet the Lords not at all attempting to Judge the offenders being a Commoner but onely to provide a faire Tryall should be had in the Kings Bench or other ordinary Courts of Common-law against him and sometimes by Statute desire to increase the punishment at the Common-law which had been vain had it been in their power Arbitrarily to have censured the Offender Such as would see them may amongst others read Rot. Parl. 13 Rich. 2. nu 11. 11 Hen. 4. nu 37 38. 11 Hen. 6. nu 12. 43. 15 Hen. 6. nu 13 14 15. 18 Hen. 6. nu 28. 23 Hen. 6. nu 42. And here I thought to have ended the Presidents I have observed in this case but that of Cambridge comes so fit that though it have been touched by others formerly I cannot but set it down somewhat more fully Unto Rich. 2. There was a great complaint in Parliament against the Major Baylifs and Cominaltee of Cambridge for some complyance in a late commotion against the University the Commons of that Town in their defence by their Councell plead against the Jurisdiction of the Court Que ceste Court n'ent doit avoir coniscance ne Iurisdiction The Lords moved affirme if they will give no other Answer they will proceed against them as men that know not what to say In the end a middle course is taken The Major and Citizens submit themselves to the Kings Ordinance touching onely their Franchises by vertue of which submission the King by the assent of the Lords seized the Franchises of the said Town And in the end committed to the Chancellor and Schollers the cognizance and punishment of defaults in the Assize of Bread Wine and Beer and of Flesh Fish c. And the rest of all the Franchises bestowed on the Major and Bayliffes againe This Ordinance gave no content to the Commonalty there who often molested the Schollars indicting them on true and sometimes on feined pretences Whereupon the Chancellor and Schollars about 7 yeares after framed a Petition to the Parliament against them which was sent down to the Major and Bayliffes of Cambridge commanding them to appear before the King and His Councell the next day after Candlemas with sufficient instructions and power to Answer all things for the Cominalty there under the Common-seal of the Town At which time the Major and Bayliffes came into Parliament but the Cominalty would not give them Authority to answer for them whereupon nothing was done of which contempt there is no question but we should have found some prosecution in that or some following Parliament but that not submitting the Lords knew they had no power to Try and Judge them being Commoners 14. And to speak seriously if the Lords may Try a Commoner they may Judge any mans title to his Lands for no Law limiting the extent of their power but that being Arbitrary it may reach to all causes whithersoever they will stretch it and so Westminster Hall sit quiet And the Subject of England hath not desired an illimited power no not in the two Houses and have therefore moderated Parliaments that they should not subvert the Lawes of the Land See 1 Hen. 4. cap. 14. 4 Hen. 4. cap. â—3 sometimes by expresse words determining that some things cannot be done in Parliament as that any should be impeached there of that concerns his Franktenement or hereditament c. Rot. Parl. 10 Hen. 6. nu 35. And as there is no limit of their power so being directed by nothing but their will either in judging what is an Offence or punishing of it they alone or with the Commons may alter the Law for ubi non est lex non est transgressio Rom. 4. 15. And if they can question and punish a man at their wills for that is neither Malum in se nor Malum prohibitum that is for that is no offence either by the Common or Statute Law a man may suffer by Fine Imprisonment or farther for that the Law takes no notice to be an Offence which is contrary to Magna Charta cap. 29. and a plain change of the Law which cannot be made but by the King and the three Estates in Parliament 15. Having thus shewed the Antiquity continuance inconvenience if otherwise of this Law There remaines onely to answer some presidents the Gentleman hath alledged as if the Practice had beene alwayes othrewise of all which though I might affirme with my Lord Cooke in Slades case lib. 4. fol. 94. that being never questioned nor confirmed by Judgements given when the case was stood upon they ought not to be regarged yet I shall shew him not one of them is at all to purpose every circumstance considered His first then is that of John Hall who killed the Duke of Glocester at Calice whose case yet he confesseth was not Tryable but in Parliament 16. Whether the King Lords had not cognizance of the fact of a Commoner so hainous not Tryable by the CoÌ„mon Law as this was not is a question I wil not now dispute That being absolutely taken away by Statut. Besides I am not satisfied this was not by Act of Parliament with the Commons consent for at the end of the Roll they thank the King for his just Judgement who yet never is read to