is hath upon several occasions been pleas'd graciously to declare That he holds Parliaments to be the best Method for healing the Distempers of the Kingdom and the only means to preserve the Monarchy in credit at home and abroad and he promises to rule the People by the Law. Hales that solid learned Divine in his Golden Remains cites Baldus for it Digna Vox est Majestate Regnantis Legibus alligatum Principem se prositeri And Learned Hooker that great Champion for the Discipline and for the Rites and Ceremonies of the Church in his Eccles Polity delivers his Opinion quite contrary to these Time-Servers Pag. 27. All publick Government says he of what kind soever seemeth evidently to have arisen from deliberate Advice Consultation and Composition between men That Composition signifies the Laws And pag. 28. he says further That the Power of making Laws to command whole Politick Societies of men belongs properly to the same entire Societies What can be said more in confutation of the Book that goes by the Name of Sir Rob. Filmers The Duke of Wittemberg at the Council held at Wormes when other Princes discours'd of many Priviledges and Conveniencies of their Lordships and Territories openly protested it to be his greatest Felicity That he could in aperto Campo in Sinu Subditorum suorum dormire Non eget Mauri jaculis nec arcu c. I shall further add only the Judgment of one or two of our most Famous and Learned Judges concerning this Matter Fortescu that was first Lord Chief Justice and afterwards Lord Chancellor in the Reign of H. 6. in his excellent Book in commendation of the Laws of England affirms this Doctrine Ad tutelam Legis Subditorum ac eorum Corporum Bonorum erectus Rex est Et ad hanc Potestatem a Populo effluxam ipse habet Sir E. C. in his 12. Rep. 64. delivered his Opinion freely in the Case of Prohibitions before the King and the Lords of the Council where there was a warm Debate between the Judges and Dr. Bancroft Archbishop of Canterbury And what Sir E. C. deliver'd for Law was with the clear consent of all the Justices of England and Barons of the Exchequer And there Sir E. C. says it was greatly marvell'd at that the Arch-Bishop durst inform the King That the King had an absolute Power and Authority by the Word of God to determine what Causes he pleas'd in his own Person And it is admirable to observe with what a true and honest Courage that grave Chief Justice Sir E. C. answer'd the King himself in that Debate When the King was pleas'd to say It was Treason to affirm that the King was under the Law The Chief Justice answer'd him with the Words of an ancient Judge and Author of our Law that is out of Bracton That the King was Sub Deo Lege And Fleta another of our ancient Authors in our Science useth Words to the same effect This Doctrine differs from some of our late Motto's in the Serjeants Rings Tacitus in his Annals gives this excellent Commendation of two of the best of the Roman Emperors Nerva and Trajan Res olim insociabiles miscuerunt Imperium Libertatem And that Author well observes it as the true Case and Condition of a People and a necessary Consequence Amissa Virtute pariter ac Libertate This Discourse of mine may seem to some to be a Digression but a man can never have a juster occasion for it than now and upon this Argument and Suit I make that my Apology which I learn from King James His Majesties Royal Grandfather in his Discourse of the Powder-Treason Which proves it the more seasonable There is a Time saith King James when no man ought to keep silence It hath says he been ever held as a general Rule in all well-govern'd Common-wealths whether Christian or Ethnicks That when either their Religion or their King or their Countrey was in any extream hazard no good Countrey-man ought then to with-hold either his Tongue or his Hand according to his Calling or Faculty from aiding to repel the Injury repress the Violence and avenge the Guilt upon the Authors To support the Power and Priviledge of the House of Commons as being an essential part of the Parliament it is absolutely necessary to make it out against these Innovators that the House of Commons have ever been a part of the Parliament and that they were long before 49 H. 3. Or otherwise they are but precarious in their power and priviledges and enjoy them but of Grace Every Priviledge is by Prescription says the Lord Dier fol. 60. a. med in Trewinnard's Case which I shall have occasion to mention more at large before I have done And in the same Dier fol. 70. in the Case of Withers and Iseham it is held That a man cannot prescribe to an Incident or Appendent nor indeed to any Power or Authority where the Principal Thing hath not had a perpetual continuance Therefore where the beginning of a thing is known there can be nothing belonging to it by Prescription In one of our late Kings Reigns the House of Commons in an Address of theirs made mention of their Priviledges as their ancient and undoubted Right and Inheritance But Offence was taken at it and they were told it had been better if they had said their Priviledges were deriv'd from the Grace and Permission of the King and his Ancestors Now I shall clearly prove that these Powers and Priviledges were indeed their ancient Right and Inheritance Which they cannot be unless that House or the Commons by their Representative have been ever from the beginning of the Governm ent a part and member of the Parliament I shall prove it out of several authentick Authors of the Law Historians and Antiquaries and by a multitude of Records and by divers Acts of Parliament which are all the sorts of Proof that can be in a Question of this Nature The Mirrour of the Justices of which Book Sir E. C. says That most of it was written before the Conquest as appears by the Book it self Tho. Horn a Learned man added much to it in the Reign of E. 1. in this Mirrour of the Justices c. 1. sect 3. It is said that King Alfred Ordain'd for a perpetual Usage That twice in the Year or oftner if need be the Parliament should assemble And to let you see of whom that Parliament did consist he tells us in the same Chapter by whom the Laws were then made It is says he among other things ordain'd that no King should change his Money nor impair it nor inhanse it nor make any Money but of Silver without the assent of the Lords and All the Commons Sir E. C. in his Preface to the 9th Rep. tells us That Tenants in Ancient Demesn because by their Tenure they were bound to Plow and Husband the Kings Demesnes before the Conquest And in the Conquerors
that the Defendant does Lupum auribus tenere And so the Judgment was arrested But we find that soon after when the Judges of that Court were chang'd the same Plaintiff brought a new Action for the same Cause And it was adjudged for the Plaintiff That the Action would lie but the Judges acknowledged it was the first Precedent I suppose it was upon pleading Not Guilty Perhaps the Court might have been of another Opinion had the Defendant pleaded specially and justified according to the Opinion of Judge Dodderidge The Case is Cro. Car. 15 Latch 79. The allowing of such Actions of Conspiracy or upon the Case or of Indictments or Informations for what is said or done in a Course of Justice and especially by way of Discovery of Treasons would prove of a mischievous Consequence And would be an occasion of multiplying Actions against the Parties to the Suits against Councel the Attorneys the Witnesses and so Suits would be infinite As in this present Case Should an Action be adjudg'd to lie against the Defendant for what he has acted by Authority of Parliament what a multitude of Actions would be stirred up by it If the Speaker be liable to this Information for what he has done by the same Reason he would be liable to the Actions of the several great Persons that are said to be defamed by the Printing of Dangerfields Narrative And if the Speaker be liable who acted but by Command of others and as their Minister how much more would all those Persons be ilable by whose Command he so acted And how many Narratives have there been printed wherein several great Persons were severely reflected on and how many Votes of the like Nature have there been Printed So that there would arise a Multitude of Suits In Sir Drue Druries Case 6. Rep. 74. The Justices in judging of that Case give a very good Rule and Caution They say That Judges ought to have good Consideration in all Cases depending before them not only of the present Cases but also of the Consequences What general Prejudice may ensue upon them either to the King or Subject The Case before you exceedingly requires that Consideration The Prejudice to the King will be that he will not be Safe for by this means Men will be discouraged from discovering Treasons The Subjects will receive Prejudice by the multitude of Suits that will arise by it This mas suffice to be said in maintaining the first Proposition That no Information or Action lies for what is said or done in a Course of Justice The Minor Proposition is That what is here done by the Defendant in this Case was done in a Course of Justice and in a Legal Proceeding and that in the highest Court of the Nation in the Court of Parliament and done according to the Law and Custom of Parliament This I must make out in the next Place In the making this out I am under a Necessity of speaking of the transcendent Power of the High Court of Parliament and I must assert these Positions following 1. That the House of Commons was originally and from the first Constitution of the Nation the Representative of one of the three Estates of the Realm and a part of the Parliament 2. That what is done by either House according to the Law and Usage of Parliament is properly and in the Judgment of Law the Act of the whole Parliament And that what concerns the One must of necessity concern the Whole not meerly by Consequence but by an immediate Concernment as being One and Entire 3. That what hath been acted in our present Case by the Defendant as Speaker and by the House of Commons whose Minister he was and by whose Command and Order he did What he did was done according to the Law and Usage of Parliament As to the first That the House of Commons was from the first Constitution of this Kingdom a part of the Parliament There has been an Opinion that hath been stifly maintained by some Divines and others of late That the House of Commons originally were no part of the Parliament at least not as now elected and consisting of Knights Citizens and Burgesses but that their Beginning was in the forty ninth Year of King Henry 3. when that King had given a total overthrow at the Battle of Evesham to Symon Montford Earl of Leicester and the Barons And that to ballance the Power of the Barons that King caused the Knights Citizens and Burgesses to be chosen and to make a Part of the Parliament And from hence some Unquiet Innovating Writers quorum res spes ex adulatione pendent and who would destroy Foundations and remove our Ancient Land-marks and the Ancient and Just Limits and Boundaries of Power and Authority Persons of necessitous Estates or of greedy and ambitious Appetites which drive them upon devising how to do some acceptable Service to those that maintain them Or at the best out of unsetled Judgments and too much Zeal which carries them to a contrary extream These Men conclude That therefore all the Power and Priviledge the House of Commons claims is not by Prescription but that they depend upon the King 's Royal Will and Pleasure and had their Original by his meer Concession and not by Ancient Inherent Right nor Original Constitution and therefore may be resumed at Pleasure It was one of the Articles against Dr. Manwaring in the Parliament 3 Car. 1. for which he was Impeached by the Commons and Sentenced by the Lords in Parliament That to Subvert Scandalize and Impeach the good Laws and Government of this Realm and the Authority of the High Court of Parliament and to avert his Majesties Mind from calling of Parliaments and to alienate his Royal Heart from his People he did in his Sermons and in his Books printed endeavour to persuade the King That his Majesty was not bound to observe the Laws of the Realm concerning the Rights and Liberties of the Subjects That Authority of Parliament was not necessary for raising of Aids and Subsidies His Sentence was Imprisonment during pleasure and but 1000l Fine for this high Offence not 20000l as hath been of late times He was to acknowledge his Offences as it should be set down by a Committee in writing at the Bars of both Houses He was suspended from his Ministry Disabled to preach at Court. His Books were to be call'd in and burnt in London and both the Universities Power limited by Law is safest It may be thought Potestas minor sed tutior diuturnior Ea demum tuta est Potentia quae viribus suis modum imponit To encounter these new and upstart Opinions I shall mention an Author or two whom all sober men reverence that are of a contrary Judgment to these new Authors And they are either Eminent Lawyer or Divines And I am the more encourag'd to do it because His Majesty that now
Time had divers Previledges which they claimed by Prescription and among others Not to contribute to the Wages of the Knights of the Shire Now the Priviledge must be as Ancient as their Tenure and Service for their Priviledge comes by reason of their Service and their Service is known by all to be before the Conquest in the time of Edward the Confessor and in the time of the Conquerour And it is expresly said by this Learned and Reverend Judge That these Tenants in Ancient Demesn claimed this by Prescription and it could not be so if the Wages of the Knights of the Shire had begun within Memory of Man or of any Record Therefore it clearly follows That Knights of the Shire to serve in Parliament and the paying Wages to them for their Service has been Time out of Mind and did not begin 49 H. 3. for that is within Time of Memory in a Legal Sence The same Argument is used by a Learned Lawyer and Antiquary Mr. Lambard in his Archion or Commentary upon the Courts of Justice fol. 57 and 239 and 245. where the maintains that the Parliament was used in the Saxons time and then consisted of the King Lords and Commons as in the time of King Ina. Anno 712. He does affirm That Burgesses were chosen to the Parliament before the Conquest fol. 257 258 265. Littleton's Tenures sect 164. says That the ancient Towns call'd Burroughts be the most ancient Towns that are in Engl. for the Towns that now are Cities or Counties in old time were Burroughs and call'd Burroughs for that of such old Towns came the Burgesses to the Parliament Sir E. C. in his Comment upon this Text of Littl. 1 Inst. 110. says it is called Parliamentum because every Member of that Court should Parler la Ment. Many Pretenders to Learning take upon them to censure Sir E. C. for this and some other like Etymologies as being ridiculous Let me do right to that Learned in the Law and which is more honest and worthy Chief Justice who lives in his useful Works and in that great Blessing from God a numerous and flourishing Posterity It is true Mentum is an ordinary Termination of divers words of the Neuter Gender and so it is if we will be strict in the Word Parliamentum But give me leave to say if it be ridiculous he is not the first nor the greatest that hath been guilty in this kind nor is it any proof of Illiterateness nor to be charg'd only upon the Profession of the Common Law as if it were an Absurdity peculiar to us For the Antiquity of the like Etymology it is of above a thousand years standing and for the Authority of it it is to be met with in the Imperial Laws of Justinian the Roman Emperor and the last of the Roman Emperors Even in the very Text of the Civil Law it makes the Etymology of Testamentum Ex eo appellatur says the Text quod Testatio mentis est Allusione quadam Etymologica ostendit rei vocis convenientiam says Vinius in his Comment fol. 270. Nomen ab officio convenienter habet And Vinius says further Estque hujusmodi allusiva derivandi ratio omnibus Auctoribus admodum familiaris In jocis Venustas delectat qualis est illa Ciceronis Fides quia fiat quod dictum est And Sir E. C. it may be was prompted to this Etymon from that ancient Author the Mirrour of Just. who in the place I before cited c. 1. sect 3. though he did not expresly mention the Word Parliament yet speaking of it under another Name he tells us what their Property is viz. A Parler la Ment. Thus much by way of Digression for the Vindication of that Honour of our Profession Sir E. C. to whom not only his own but all Posterity are highly oblig'd especially our Profession The Register of Writs fol. 261. Quod homines de antiquo Dominico non contribuant expensis Militum ad Parliamentum venientium This is the Title of the Writ The Writ it self runs thus viz. Monstraverunt Nobis says the King Homines Tenentes de Manerio de S. quod enim de antiquo Dominico Coronae Angliae ut dicitur quod licet ipsi eorum Antecessores Tenentes de eodem Manerio a tempore quo non extat Memoria semper hactenus quieti esse consueverunt de expensis Militum ad Parliamenta Nostra vel Progenitorum Nostrorum Regum Angliae pro Communitate dicti Comitatus venientium c. M. 11. H. 4. Fitzh Avowry Placito 52. which is said to be the first Case in our Year-Books concerning Wages to Knights of the Shire In a Replevin the Defendant avows as Under-Sheriff by vertue of a Fieri facias to levy the Wages of the Knights of the Shire and he took his Distress in a Town call'd Wotton Tremain for the Plaintiff pleads in Bar to the Avowry That W. temps d'ont c. never paid to the wages of the Knights of the Shire and so Issue is joyn'd upon that Prescription M. 14. H. 8. fol 3. in the Year-Book by Fineux Ch. J. The Parliament says he consists of the King the Lords and the Commons and they are by the Com. Law One Body Corporate Now that they cannot be at the Common Law but by Prescription I shall now proceed to prove it by several Records of Parliament that the Commons have ever been a part of the Parliament as constituted at this day of Knights Citizens and Burgesses Ex Rotulo Parliamenti anno 51. E. 3. Membr 5. num 45. Mr. Pryn's 4th part of a Register of Parliamentary Writs fol. 315. in Sir Rob. Cott. Abr. it is too short but at large in Mr. Pryn as before cited There is a Petition of the Commons to the King in French. Item For that of Common Right which is the same with the Common Law in the Language of the Acts of Parliament of the Realm Of every County of England there were and are chosen two Persons to be at the Parliament for the Commons of the Counties besides the Prelates Dukes Earls and Barons and such as hold by Barony and besides Cities and Burroughs who ought to chuse of themselves such as are to answer for them And such as are chosen for the Counties ought to have their accustomed Wages and to have Writs to the Sheriffs to levy them They pray that it be ordain'd this present Parliament that the Wages be Levied of all the Commons of the Counties as well within Franchises as without excepting within Cities and Boroughs and excepting of those that are summon'd by Writ meaning the Barons and their Tenants Resp. Soit fait come devant ad este use en cest Case This was in the time of K. E. 3. who was but the Fourth King in Succession from that K. H. 3. in whose Reign our new Authors would have our Knights Citizens and Burgesses to have their Original And the Kings Answer to
Nobilis in our times is generally restrain'd to Peers whom we call the Nobility our New Writers as Mr. Pryn and Sir Robert Filmer and several others ascribe all to the Earls and Barons and other Peers of our times which they read in the Translations of the Saxon Annals to be acted by those that are called Nobiles in those Annals Altho' in truth in those Saxon times they were acted by the middle sort of Persons as well as by those of the highest sort of Dignity under the King. Those Translators misled our new Authors For the Norman Writers translate the Word Thanes into Barones and these new Authors of ours whatever they find in these Translations to be related of the Barones they limit it as a Peculiar to our present Barons and so ascribe all judicial Power antiently used in Parliament to the Barons only And they bring those Historians and Translators for a Proof For Example The Saxon Title Thanes was in the Saxon times applyed to all Lords of Mannors But the Translators of the Saxon Annals translating the Title Thanes into Barones Our Innovators apply all that in Saxon Writers is said to be done by the Thanes that is all Lords of Mannors as peculiarly belonging to the Power of the Barons in our times Hence it is that Sir E. C. cautions us against taking Reports of Law from Historians in his Preface to the 3d. Rep. he calls it Chronicle Law. The Word Baro was not in use in England till the Normans times and the Root of it as Mr. Seld. and Camd. and Sir H. Spelm. teach us is from the Northern Language Barn which signifies the Male Sex as when we put Cases of Baron and Feme or it signifies a Freeholder hence come the Words Courts Baron Nomine Baronagii says Camd. Eliz. Edit Lond. An. 1600. fol. 137. omnes quodammodo Regni Ordines continebantur It comprehended the Gentry as well as the greatest Persons After this manner Godwin in his Roman Antiquities speaking of the Roman Magistrates Translates the Words Triumviri capitales into 3. High Sheriffs but this affords no Argument that what was done by the Triumviri among the Romans may therefore lawfully belong to the power of High Sheriffs among us And so the Words Proceres Magnates Optimates Nobiles and such like were not in the Writers of the Saxons times restrain'd to Men of the highest rank then such as our Earls and Barons are now but to all Persons of the better sort tho' not of the highest rank not only to Patricians and those of the Senatorian order but to those also that were Equestris ordinis Excluding none but the Ignota capita or sine Nomine turba such as the Romans styled Plebeians Magnates Proceres are said to make the Stat. of Mortmain but we all know that the Parliament that made it consisted then of King Lords and Commons The great Charter made 17 of K. John appears by the body of the Charter it self to have been made per Regem Barones liberos Homines totius Regni so that it is most plain it was not made by the King and the Barons only as Mr. Seld. observes in his Tit. of Honour fol. 709. and there he refers to the Close Rolle 17 Johannis dorso memb 22 Yet K. H. 3. speaking of this Meeting calls it Baronagium Angliae and rot claus 28 H. 3. Pars unica membr 12. dorso it is call'd Parliamentum de Runni-meade quod fuit inter Dominum Regem Johannem Barones suos Angliae As for the other gross mistake That the Power of making Laws rests only in the King as Sir Robert Filmer would have it which he proves from the Titles of Acts of Parliament and the Forms of those Acts being by way of Charter and Grant from our Kings in ancient times as that of Magna Charta DOMINVS REX CONCESSIT and the Stat. De donis conditionalibus DOMINVS REX statuit sure he was no Lawyer that used this Argument and he never read the Prince's Case Nor Sir E. C. 2. Inst. nor shall I need to labour in the consutation of this Errour the fallacy of it being so well known to every Man that wears a Gown As for that Stat of Mag. Char. whereby the King only seems to speak and all that is ordain'd by that Stat. runs in the language of the King's Concessions only yet we know the Stat. of 15 E. 3. c. 1. which confirms it says of it that it was ordain'd by the King Lords and Commons The Stat. of 28 E. 1. c. 8. and c. 13. hath these words viz. The King hath granted unto his People that they shall have Election of their Sheriffs every year if they list One would take this to be a most gracious Liberty and an high Condescension if it should be granted now adays And our Innovators would be apt to conclude from the words of this Act and from the Penning of it that the People once had this mighty Priviledge meerly as a Boon from the King and by virtue of his Grant. Whereas there is nothing more certain and clear than that the Freeholders who are often call'd the People and are the true Proprietors of the Nation and Land had originally and from the very first Constitution of the Nation the Election not only of all Sheriffs but of all other Magistrates Civil or Military that had any Authority over them under the King so that they had a mighty Freedom in the very Constitution of the Nation and this overthrows all the wild Fancies of Sir Robert Filmer and Dr. Heylin and some later Doctors as if all were deriv'd from meer Grace and Bounty and many other Deductions might be made from the knowledge of this The Freeholders had originally the Election of the Conservators of the Peace who are become out of date by introducing our present Justices of Peace who have their Power not by the Elect. of the Freeholders or are they of their Nomination as anciently but nominated by the King and have their Power by special Commission under the great Seal and how and by what means and in what tempered times this came about and that this freedom was gain'd from the Freeholders of England you may read in Mr. Lambard in his Eirenarcha fol. 16. 19. 20. 147. It was done by Act of Parliament in the beginning of K. E. 3d and in his Infancy when his Mother Q. Isabel ruled all The Freeholders originally and from all antiquity did likewise by Writ at the County-Court styled in pleno Folkmote chuse the Heretochii What were those that sounds like a strange word I will imitate our Norman or English Translators in the translation of the Saxon Annals and render it into the English style you may by that rule call them Lords Lieutenants or Deputy Lieutenants for the Saxon Laws tell you their duty or office they were the Ductores Exercitus See Lamb. de priscis Anglor Legibus in his ch de
argued that the Commons at the Common-Law which is ab initio were a part of the Parliament In the Case of Ferrers out of Crompt Jurisd of Courts fol. 8 9 10. for I keep within my proper Element and move in my Sphere and cite Authors of our own Science of the Common-Law K. H. the 8th call'd before him the Lord Chancellor the Judges the Speaker of the House of Commons and others and thus express'd himself before them viz. That he was inform'd by his Judges that he the King as Head and the two Houses as Members were knit together in one Body Politick so as whatsoever Offence or Injury during time of Parliament is offer'd to the meanest Member of the House is to be judged as done to the King's Person and the Whole Court of Parliament And Sir Edward Mountague the Ld. Ch. I. then present confirm'd all that the King had said and it was assented to by all the rest of the Judges Now if you bruise or pierce the hands and the House of Commons may well be compar'd to the hands for they have been the Liberal Hands and the Hands feed the Head the Head and all the rest of the Body must quickly be sensible In Trewinnard's Case Dier 60. and 61. The Priviledge of the Commons upon this very account is term'd the Priviledge of the Parliament and the Judgment given in that Case by the House of Commons is there said to be the Judgment of the most High Court of Parliament The Statute of 1 C. 1. saies the Parliament is the whole Body of the Realm By the two Records that I cited before out of the Office of Pleas in the Exchequer 12 E. 4. It appears in two several Cases of Priviledge the one concerning the Lords and the other concerning the Commons in both Cases the Priviledge was laid and claim'd as one entire Priviledge and so allow'd by the Judgment of that Court by advice of all the Judges of both Benches The Speaker of the House of Commons by the Rolls of Parliament which are the most proper proofs in a thing of this Nature is term'd the Speaker of the Parliament so it is in the Roll of 1 R. 2. in Sir Cotton's Abr. fol. 155 it was in the Reign of a King that was no favourer of Parliaments Sir John Bussey Speaker to the Parliament Sir Robert Cotton's Abr. 20. R. 2. num 14 and 15. 51 E. 3. num 87. Sir Robert Cotton's Abr. fol. 151. Sir Thomas Hungerford Speaker of the Parliament And so is the Speaker of the Commons styled in the Case of Ferrers in Crompton's Jurisd of Courts fol. 8 9 10. before cited In the Statute of 6 H. 8. C. 16. the Clerk of the House of Commons is called Clerk of the Parliament In the Case of Godsol and Sir Christ Heydon 12 in B. R. in Sergeant Roll's Rep. fol. It was affirm'd by Sir E. C. that in antient time all the Parliament sate together and the separation was at the desire of the Commons notwithstanding saies he they are but one house and he further affirms that he had seen a Record 30 H. 1. of their Degrees and Seats Having made it appear that the Parliament is one intire body and therefore mutually concern'd in Powers and Priviledges as to the Right and Title of them tho' dividod sometiems in the Exercise I shall proceed briefly to show what those Powers are in order to the proving that what in our Case is charg'd to be done by the Speaker by Order and Command of the Parliament for so I may now affirm is pursuant to their Power and Jurisdiction The Parliament hath three Powers 1. A Legislative in respect of which they are call'd the three Estates of the Realm 2. A Judicial in respect of this 't is call'd Magna Curia or the High Court of Parliament 3. A Counselling Power hence it is call'd Commune Concilium Regni For the proof of these I shall cite some few Antiquaries but chiefly some Authors of our Profession of the Law and those of the best Authority with us I shall mention them without observing any exact method because divers of them extend to more than one of these distinct Powers and some of them refer at once to all of them Sir Henry Spelman in his Glossary Tit. Gemotum which was the old Saxon word for a Parliament fol. 261. Convenere saies he Regni Principes tam Episcopi quam Magistratus there are those that now make up the House of Lords Liberique homines there are the Commons what is their proper Work and Power Consulitur de communi salute de pace bello This proves them the Commune Concilium Regni Learned Camden Quod Saxones olim Wittena Gemot nos Parliamentum recte dicicimus as to their Power Summam Sacro-sanctam authoritatem habet in legibus ferendis interpretandis in omnibus quae ad reipubl salutem spectant This shews their Legislature The Mirror of Justices this is an Authority in Law C. 1. fol. 9. saies Parliaments were institued Pur oyer terminer this is is the Supream Court of Oyer and Yerminer The Court of King's Bench is said to be above all Courts of Eire or Itinerant and if the King's Bench be adjourn'd into any County where the Eire is sitting the Eire ceases In praesentia Majoris c. But this Court is above the King's Bench and all Courts of Oyer and Terminer The King's Bench is the Highest Eire but this is according to Solomon's Hyperbole higher than the highest But what is the proper Subject of their Oyer and Terminer Our Antient Author who wrote some part of his Book before the Conquest tells us their work is to hear and determine les plaintes de tort le Roy de la reign de leur Enfans the King's Children so that they make an Impartial Enquiry but saies our Author further De eux specialment de queux torts lun ne poit aver autrement common droit this flies very high to prove their Judicial Power I forbear to English it It is the proper work of this Supream Court to deal with such Delinquents as are too high for this Court of the King's Bench or other ordinary Courts Against whom through their Potency or mighty Interest common right cannot be had it must be understood in ordinary Courts And the Writing and Printing of this was never taken to be a Scandal to the Government or to the Justice of the Nation For the Author speaks in the Person of the King himself and tells us that the High Court of Parliament is arm'd with a Power able to cope with and quell the most insolent Offenders When the Great Judge of all the Earth comes to make Inquisition for Blood and to Execute Judgment by the hands of this High Court. The lofty looks of man shall be humbled and the haughtiness of men shall be bowed down and made low To discourse of this Judgment
Knights and others of the House of Commons should not sit in the House till the Act for reversal of their Attainders were pass'd And the Reason is that it is not convenient that such as were attaint should be Judges and it might have been added in their own Case so that attainting by Bill or Reversing Attainders tho' by Bill is most properly a Judicial Act and the Members of the House of Commons are acknowledged to be Judges in that Case by all the Judges and by that Statute of 6 H. 8. C. 16. which I mention'd before to another purpose the Iournal of the House of Commons is call'd a Record I have formerly observ'd but to another purpose too that the Writs of Summons anciently for Electing Knights Citizens and Burgesses to Parliament did direct them in their Duty that they were to meet ad Consulendum Consilium impendere tho' of late Years this has been omitted and now advantage is taken of it Let us in the next place examin whether the matters acted in this Case by the House of Commons be Warranted by these Powers of the Parliament and have been done in pursuance of those Powers And upon Examination we shall find they have done nothing but what they had a full power to do and what is agreeable to the Law and Usage of Parliament It is set forth in the Plea and admitted by the Demurrer but we all know it to be true that there was an Horrid Devillish c Popish Plot. The Enquiry after which and the searching of it to the bottom and discovering all the Accomplices was Negotium Arduum and it did Regem Statum Regni specialiter tangere according to the Writ of Summons to Parliament For the Plea tells us the design of it viz. to Kill the King. 2ly To subvert the Government and the Laws to suppress the True Religion and to destroy the Professors of it The Plea shows that One great Lord was convicted of it by Impeachment of the Commons and attainted before the Lords The Kings Speech shows there was need of further Enquiry and that it was not as yet thoroughly done nor himself nor the two Houses safe and the King charges both Houses to make an Impartial Enquiry The word Impartial imports there might be some great Persons concern'd that might be apt to be favour'd And the Plea shows that both Houses accordingly made a strict and impartial Enquiry after the Conspiracy All this appears plainly to be the proper Work of a Parliament and his Majesty himself was of that Judgment and charged them to do their Duty in it And the Enquiry is the most proper Business of the House of Commons For this Reason they are commonly styl'd The Grand Inquest of the Nation tho' Sir Rob. Filmer's bold writing terms them so by way of Diminution and Contempt as if enquiry were their highest work This Inquiry of theirs is necessary in a Subserviency to all the several High Powers of that High Court. Namely in order to their Legislature or to the Exercise of their Power of Judicature Courts that have Power of Oyer and Terminer and to punish Great and Enormous Crimes are still by their Commissioners arm'd with a Power of Empannelling grand Inquests to make Enquiries in order to their Exercise of their Power of determining Or it may be in order to their Counselling Power for removal of great Officers or Favourites whereof I have given an Instance and the Parliament Rolls and Journals are full of them But still they first make Enquiry They enquire among themselves and every Grand Jury Man by his Oath is to impart his Knowledge in any thing Material to his Fellows But the most effectual Enquiry is most probably from without doors and without such enquiry things of great importance may lye conceal'd And the Defendants Plea shows some good effect of that Enquiry Diverse were convicted And one Tho. Dangerf deliver'd in an Information and that upon Oath and first to the Lords House so that it did not begin with the Commons but if it were so Infamous and Malicious why did not the Lords Reject it and Commit the Informer and punish him No they receiv'd it and Entred it of Record in their Journal The Reason was it was done in a Course of Legal proceeding they could not reject it being the proper Court of Justice for a thing of this Nature And the King had given it them in charge to enquire Nor do they by receiving of it give it any Countenance or Credit Then why should it be so heinous a thing in the House of Commons more than in the Lords Let us remember still they are but one Body and though they sever themselves for their better dispatch of their great Affairs and distribute the Work amongst them yet the Power by which they Act is Entire But why should any man divide and sever those that are Entire It concerns the Lords equally with the Commons But how comes it to concern the Speaker of the Commons so highly above the House it self who Acts meerly as a Minister and by Command of the House but that I reserve for a point distinct But perhaps it may be allow'd that what is done by either House in receiving Dangerfield's Information and entring of it in their Journals is Parliamentary enough But the Offence and Scandal arises first upon the publishing of it in print Now a word or two to that Let us consider how publick this Information of Dangerfield's was before the printing of it It was made very publick by being deliver'd at the Bar of the Lords the High Court of Parliament and indeed all Courts of Justice ought to be open and of easie Resort The Information of Dangerfield is first made a Record of that Court and to a Court of Record any person may resort as Sir E. C. tells us in his Preface to the 3d. Rep. and that it was the Ancient Law of England and is so declar'd by a General Act of Parliament 46 E. 3. C. which tho' a general Law is not in the printed Book of Statutes as I observ'd of another general and useful Act of Parliament before however it comes to pass In that Act of 46 E. 3. the Commons prayed that a Record of whatsoever is done in the King's Court ought in Reason to remain there for perpetual Evidence for all persons And they complain that of late the Court had refus'd to suffer the People to search and to have Exemplifications for evidence against the King or to his disadvantage Therefore they pray that search and Exemplification be made to any persons of any Record whatsoever though it concern the King or any other and make against the King or any other And the Answer is Le Roy le voet But then it was made more publick by being deliver'd in at the Bar of the House of Commons which ought to consist of about 500 Members who are suppos'd to
for an Information which is but the King's Suit the Reason being the same in both But it may perhaps be thought that in respect of the Persons concern'd in it this was too high a Flight and too bold an Attempt and that the height and eminence of some persons may exempt them from common Justice and from the Power even of a Parliament In answer to which I would observe that some Laws are more especially levell'd against the Highest Subjects By the Statute of W. 1. c. 5. The King forbids that nul haute homme no High or Great Man upon pain of grievous forseiture disturb Elections but Elections ought to be free The like may be observ'd in the Statute of W. 1. c. 35. Des hautes bommes c. And the greater the Persons are if they are in the rank of Subjects they must be subject to the King's Laws and they are the more proper for the undertaking and encounter of this High Court. It will not be Impar congressus I cited before the Mirror of Justices Chap. 1. Pag. 9. where it is said that Parliaments were ordained for to hear and determine in such wrongs and against such Persons especially against whom otherwise Common Right cannot be had I will cite no Historians to prove what hath been done in Antient Times within this very Kingdom of this Nature against the highest Subjects I will keep still within my own Sphere and cite none but Authorities in Law. And so keep my self in the way that belongs to me and so doing I am under the Protection of this Court and of the Law and may relye upon the performance of that Blessed Promise He will keep thee in all thy ways There must be no respect of Persons in doing Justice The great Judge of all the World gives it as a Rule and himself gives the Example God is no respecter of Persons The King was pleas'd to charge both Houses to make a strict and impartial Enquiry I shall cite two Authorities in Law that come to this point The first is in Case of a Brother and an Heir apparent too and of a Person that did after succeed in the Crown King Richard the 1st in his Magna Curia petiit sibi Judicium fieri de Comite Johanne fratre fuo qui contra fidelitatem quam ei juraverat Foedus contra eum cum inimico suo Rege Franciae inierat That was the Offence charg'd It may possibly be Objected that the King himself complain'd True but he complains to the proper Judicature This proves their Power Hunts Arguments for Bishops fol. 80. But what did the High Court do upon that Complaint They pronounc'd a very severe Sentence tho' it were but in the Nature of a mean process to make him appear and Answer Seld. Tit. of Hon. fol. 707. The Lords Order or adjudge that if John Earl of Moreton did not appear within 40 Days after Summons Judicaverunt Comitem Johannem demeruisse Regnum Let me remember you of a stronger and higher Case and I have it out of an Author of the Law too Crompt Jurisd of Courts in his Chapter of the Court of the King 's Bench. In a Case of Corpus cum Causa Whidden one of the Judges of the Court cited a Case that did happen in the time of Gascoign Ch. I. in the Reign of King H. 4. Gascoign committed the Prince of Wales who was afterwards our King H. the 5th to Prison for endeavouring to take away a Prisoner from the Bar of the King's Bench and the Prince humbly submitted and went to Prison and the King hearing of it commended it If the King's Bench being an Inferior Court to that high Court might soar so high how much more the highest Court of the Realm where the King sits in the Exaltation of his Orb and is in his greatest Splendor The King indeed is presum'd in Law to be in this Court which makes the style of its proceedings to be Coram Rege and some of our Kings have been said to have sate here But the King is in his High Court of Parliament per Eminentiam as K. H. 8. one of the highest and most resolute of our Kings said in the Case of Ferrers which I cited before to another Point That he was informed by his Judges who were all then present that he in no time stood so high in his State Royal as in the time of Parliament Then if we consider the Person whom the Ch. I. Gascoign Committed He was a continuing settled fixed Heir and then Prince of Wales whose Chair now stands Vacant in the Lord's House in time of Parliament and afterwards this Prince of Wales proved a Renowned King. Nescit Imperare qui nescit obtemperare The Sacred Scriptures tell us that the Heir differeth nothing from a Servant I may say also from a Subject until the time appointed of the Father Gal. 4. 1 3. What would the Author of the Sermon preach'd before the University have said in these Cases that I have cited He would have call'd them Unwarrantable Proceedings and would have affirm'd that the Persons thus proceeded against were too sacred to be touch'd with such unhallowed Hands This hath been the Bold Language from the Pulpit and the Press if the Title of the Book be true from a Cambr. Dr. Oblitus Professionis suae quae nil nisi lene suadet justum And the Author while he was guilty of gross Flattery on the one hand was not afraid to run into the other Extream of speaking Evil of Dignities on the other hand of one of the three Estates of the Realm of the Representative of the Great Body whereof he himself makes but a small inconsiderable Atome We know from certain and undoubted Histories of our own that in the time of King H. 8. greater Persons in the Account of the Law than the Prince of Wales and yet but Subjects of the King have been brought to Tryal and that before Lords Commissioners and however in other Respects their Cases might be very hard yet it was never doubted but they were Subject to the Law and Justice Now to proceed to my second Point wherein I shall be brief viz. That however the Matters Charged in the Attorney General 's Information are not to be imputed to the Defendant in this Case He being but the Minister or Mouth of the House and Acting only by their Order He is frequently in the Parliament Records styled the Mouth of the House whose Speaker he is Mr. Hakewell in his Treatise of Parliaments fol. 200. among the Catalogue of Speakers begins with Petrus de Mountf whom he makes Speaker 44 H. 3. of the House of Commons and he cites the Register of St. Albans for it Fol. 207. where it is said that Petrus de Mountford Vice totius Communitatis consented to the Judgment of Banishment of Adomar de Valence Bishop of Winchester and Sir Robert Cotton agrees with Mr. Hakewell in this
sacred Authority of any Court that it hath an absolute power that it is the highest Court in the Realm is acknowledged by our most Learned and gravest Writers and Historians for I would not wholly omit them though I do not need them but I relie only and put all the stress of my proofs and arguments upon my Authorities in Law. Cambden in his Britannia Summam sacrosanctam Authoritatem habet Parliamentum Knighton de eventibus Angliae l. 1. fo 2681. col 1 2. He calls it the Highest Court of the Realm So it is call'd in Trewinnard's Case in Dier 60 61. Sr. Thomas Smith in his Common-Wealth of England l. 2. c. 2. fo 50 51. In Comitiis Parliamentariis posita est omnis absolutae potestatis vis Sir R. Cotton in his Posthuma edit at Lond. pag. 345. cited by Mr. Pryn in his Preface to Sir Robert Cotton ' s Abr. The Parliament controlls all Inferior Courts and all Causes of difficulty cum aliqua dubitatio emergit referr it to the Parliament To shew their power and jurisdiction upon Erroneous proceedings in other Courts by authorities in Law which confirms one of my Reasons In Trewinnard's case it is said that though the Parliament erre it is not reversible in any other Court This is spoken in a case where the then occasion was upon a Judgment given only by the House of Commons in a case of Priviledge Agreeable to this is 21 E. 3. fo 46. Br. Abr. tit Error plac 65. in the latter end of that case and 7 H. 6. Br. Abr. tit Error plac 68. by Cottesmore and 1 H. 7. fo 19. Br. Error plac 137. Error in Parliament shall be revers'd in Parliament non aliter for there is not an higher Court. 1 H. 7. fo 19 20. By all the Judges in the Exchequer-Chamber for a Judgment in the King's-Bench Error must be sued in Parliament and as the Parliament shall correct the Judgments so they are to correct the Judges that give corrupt and dishonest Judgments These are the words and the opinions of the Lord chief Justice Vaughan in his Reports fo 139. in Bushel's case Such says he in all ages have been complained of to the King in the Star-Chamber which is a Court now dissolv'd by Parliament or to the Parliament He there mentions many Judges those 44. that were hang'd in King Alfred's time before the Conquest for corrupt judgments and those in the time of E. 1. E. 3. and R. 2. for their pernicious resolutions He vouches the Journals of Parliament and instances in the Judgment of Ship-money in the last King's time and the particular Judges impeach'd Sir E. C. in his 12 Rep. fol. 64. the words are spoken by Sir E. C. but as that Rep. says with the clear consent of all the Judges The King hath his Court that is to say in the Vpper House of Parliament in which he with his Lords is the Supreme Judge over all other Judges For if Error be in the Common-Pleas that may be revers'd in the King's-Bench and if the Court of King's-Bench erre that may be revers'd in the Upper House of Parliament by the King with the assent of the Lords Now though this is spoken of the Lords House only yet it must be again remembred that the Parliament as I prov'd before is one entire Body and that their power in the right of it is entire though as to the exercise of it it is distributed into parts and is divided Not can the House of Lords exercise any power as an House of Parliament or as a Court for Errors without the House of Commons be in being at the same time Both Houses must be Prorogu'd together and Dissolv'd together like the Twins of Hippocrates they live and die together and the one cannot be in being without the other also at the same time be in being too 2. Inst. 408. Matters of difficulty were heretofore usually Adjourn'd to Parliament but says he 't is now disused And 2. Inst. 599. Courts at variance properly complain to the Parliament 4. Inst. In the Chapter of the Court of the Kings-Bench Errors in the Kings-Bench in matters that concern their Jurisdiction and other Cases there excepted in the Act of 27 Eliz. Cap. 8. cannot be Revers'd but in the High Court of Parliament 4. Inst. Fol. 67. There is a Court Erected by the Statute of 14 E. 3. Cap. 5. Stat. 2. For redress of delays of Judgments in the Kings great Courts consisting of a Prelate Two Earls and Two Barons to be chosen in Parliament by that Statute If the Case before them be so difficult that it may not well be determin'd without assent of the Parliament it does not say by the House of Lords only then shall the tenor of the Record be brought by the said Prelate Earls and Barons into the next Parliament and there a final Judgment shall be given Si obscurum difficile sit Judicium ponantur judicia in respectu usque magnam curiam Rot. Parl. 14. E. 3. Num. ult Sir Jeffery Stanton's Case 25. E. 3. Cap. 2. The Chapter of Treason in the 2. Inst. Fol. 21. The Judge or Court in some Cases is to forbear going to Judgment till the Cause be shewed before the King and his Parliament whether it ought to be judged Treason or not That this Court proceeds by the ordinary Rules of the Common Law but that High Court of Parliament proceeds not by that Law but by a Law peculiar to that High Court which is called Lex Consuetudo Parliamenti and consists in the Customs Usages and Course of Parliament and therefore this Court nor no other inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament If this Court should take upon it to proceed in such cases it would justly be said of it as a thing very irregular Metiri se quemque suo modulo ac pede verum est Sir Rob. Cott. Abr. 20. R. 2. nu 14 15. Sir Tho. Haxey delivered a Bill to the Commons in Parliament for the honour and profit of the King and of all the Realm complaining of the outragious Expences of the Kings House and namely of Bishops and Ladies Here the Camb. Dr. I have before mention'd would take occasion again to complain of the sauciness of this Bill K. R. 2. was offended with the Commons for preferring this Bill to the King for it seems they had entertain'd this Information from a particular hand as was done in our Case from Dangerfield and they proceeded upon it K. R. 2. said it was an offence against his Dignity and Liberty and said he would be free therein And Sir John Bussey the Speaker to the Parliament as that Roll of Parliament calls him is charg'd to declare the Name of him who Exhibited that Bill By this it appears the King could not take notice of what was done in the Commons-House or deliver'd to them but by
his Treatise of the manner of Enacting Laws in Parliament Fol. 125. reports this Case of Thorp at large It is time now to come to higher Authorities that is to Resolutions of Parliament in this point And first the Resolution of the House of Commons in maintenance of their own Right or at least a claim of their Right I have it out of an Author that is very far from being a friend to the House of Commons and 't is a Clergy-man too I mean Dr. Heylin in the Life of Archbishop Laud Fol. 89. He reports that the House of Commons made a Protestation in 1621. against all Impeachments other than in the House for any thing there said or done Let me present you with the like claim made by the Lords which seems to run something in the form of an old Act of Parliament In Sir Rob. Cott. Abr. 11. R. 2. nu 7. In that Parliament all the Lords as well Spiritual as Temporal being present claimed their Liberties and Franchises viz. That all weighty matters in the same Parliament which should be afterwards moved touching the Peers of the Land ought to be determin'd judged and discussed by the Course of the Parliament and not by the Civil Law nor yet by the common Laws of the Land used in other more Courts of the Realm The which Claim and Liberties the King most willingly allow'd and granted thereto in full Parliament says that Roll. Now as I have before prov'd the Liberties and Franchises of the Parliament in the right of them are entire and due to both Houses for both make up the Parliament Mr. Seld. in his Title of Honour Fol. says That a thing granted in full Parliament signifies an Act of Parliament Now for an Act of Parliament full in the point and then I can go no higher It was in the Case of Richard Strode one of the Burgesses for Plympton in Devonshire in the Parliament of 4 H. 8. for agreeing with the Commons House in putting out Bills as it is reported there which seems to resemble the Printing or Publishing mention'd in our Case Those Bills so put out were against the Abuses of the Tinners who were a great and numerous Body of men who by these Bills took themselves to be scandalized and slandered After the Parliament was risen this Richard Strode for what he had so done in Parliament was presented and found guilty in the Stannary-Courts and condemn'd to forfeit 40. l. a moderate fine He was for this imprison'd in a Dungeon within a Castle and fed with Bread and Water When the Parliament met again he Petition'd the Parliament for remedy and that the Judgments had against him and the Executions might be made void which was done accordingly by Act of Parliament And it was further Enacted That all Suits Accusations Condemnations Executions Fines Amerciaments Punishments pass'd or had or thereafter to be pass'd or had upon the said Strode and to every other person that was in that Parliament thus far it is a private and particular Act but the reason of this and the Justice of it extends to all like Cases but then it goes farther Or that of any Parliament hereafter shall be for any Bill speaking reasoning or declaring of any matter concerning the Parliament to be communed or treated of these are very large and general words be utterly void and of none effect And it goes farther yet And that any person vexed or troubled or otherwise charged for any Cause as aforesaid shall have an Action of the Case against every person so vexing contrary to this Ordinance and recover treble damages and costs Here now is an Action given against one for what they shall do in a course of Justice But it is because it is suing in an inferior Court that has no jurisdiction in the matter This Act takes away all jurisdiction in such Parliament Cases from all other Courts I know that in the Case of Denzill Hollis afterwards the Lord Hollis Mr. Seld. and others 3 Car. I. the Judges being consulted upon some Questions propounded Res. That that Act of Strode's was a particular Act and extended to Strode only and no doubt it was a particular Act in a great part of it and in that part extended to Strode only But if the Judges meant that no part of that Act was a general Law then I must crave leave to say 1. That their opinion was extrajudicial it was delivered upon their being consulted with about Questions propounded to them and therefore hath not that weight And I must take the liberty to appeal to the very words of the Statute it self and to any man of reason and honesty to use his reason aright that shall read them and I must offer some reasons against their opinion and cite some good Authority in that point and then leave it to this Court to judge of it The words and persons and time mention'd in the latter part of that Act are general It speaks indeed first of Strode in particular but then it hath these words every other person It mentions that Parliament in particular but then it proceeds to speak of any Parliament that there-after shall be Then the things also are general that the Act extends to not onely to indemnifie Strode for what he had said or done in parliament but then the Indemnity extends to every other person for any Bill Speaking Reasoning or Declaring of any matter concerning the Parliament The words of the Royal Assent to this Bill are such as are constantly used only to general Acts viz. Le Roy veut whereas to a particular Act the Royal Answer is Soit droit fait al parties And this Act of 4 H. 8. is enrolled as general Acts use to be But a private or particular Act is always fil'd but never enroll'd for this latter distinction we shall find it in the Case 33 H. 6. fol. 17 18. for authority in this question Sir E. C. in his 4th Instit. fol. 19. holds this Act of 4 H. 8. in the latter part of it to be a general Act. It is indeed commonly said Boni Judicis est ampliare jurisdictionem But I take that to be better advice which was given by the Lord Chancellor Sir Francis Bacon to Mr. Justice Hutton upon the swearing him one of the Judges of the Court of Common-Pleas That he would take care to contain the jurisdiction of the Court within the ancient Mere-Stones without removing the mark I find but one Resolution in all our Books that I can meet with that seems to make against us in this point and maintains a jurisdiction in this Court for a Misdemeanor or Conspiracy suppos'd to be done by some particular Members of the House of Commons in the House in time of Parliament It is reported by Mr. Justice Croke in his Reports of the time of King Charles fol. 181. but it is more fully reported in a late Book entitled Memorials of the English
Affairs set out by a Learned Lawyer and the Son of a Judge and it is the Case that I lightly touch'd upon but now that of Mr. Hollis Selden c. The offence charg'd upon Mr. Denzill Hollis who was afterwards the Lord Hollis Mr. Selden Sir John Elliot Sir John Hobart and divers other Parliament-men was for a force used upon the then Speaker Sir John Finch afterwards Lord Keeper in keeping him in the Speaker's Chair against his will when he would have left it and pressing him to put a question which the King had forbidden him to put For this supposed offence after the Parliament was Dissolv'd these Parliament-men were first convened before the Council where they refus'd to answer the Charge it being for matters done in Parliament Then the Judges had Questions propounded to them to which they gave their resolution that for things done not in a Parliamentary way a Parliament-man may be punished after the Parliament is ended if he be not punished in Parliament otherwise as J. Croke said There would be a failure of Justice but that regularly he cannot be compell'd out of Parliament to answer things done in a Parliament in a Parliamentary course This Answer seems to be very oracular for it resolves that a Parliament-man shall not Answer for things done in Parliament in a Parliamentary course If it be done in a Parliamentary course what occasion can there be to answer for it But who shall judge what is a Parliamentary course but a Parliament not Judges of the Common-Law for the Parliamentary course differs from the Rules of the Common-Law But they refusing to answer at the Council-Board were committed close Prisoners to the Tower. After this Sir Robert Heath the King's Attorney preferr'd an Information in the Star-Chamber against them that was not proceeded in The Lord Keeper was under difficulties about it says the Author The Judges of the King's-Bench were to consult with the rest of the Judges in granting a Habeas Corpus for bailing the Prisoners The rest of the Judges would hear arguments so it was put off and delay'd as our Author reports it At last an Information was exhibited against them in the King's-Bench The Defendants pleaded to the jurisdiction of the Court their plea was over-rul'd and they refusing to plead over judgment was entred by nihil dicit and they fined and imprison'd Mr. J. Croke at the latter end of those Reports gives this further account of that Case that afterwards in the Parliament 17 Car. 1. It was Resolv'd by the House of Commons that those Parliament-men should have a recompence for their damages sustain'd for the services to the Commonwealth in the Parliament 3 Car. 1. If a Judge hath thought fit to report this it may be as fit for me to mention it I take that to be the first precedent or resolution given in any case for what was done in Parliament and it stands alone I have heard of none since that neither It seems to be directly against the provision made by it it is clearly within the Equity and Reason of it Strode's Act. I wish I could not say that even those times of 3 Car. 1. were not full of trouble It appears much by the difficulty the Judges seem'd to be at in the proceedings of that Case this detracts much from that veneration that otherwise is justly due to a Resolution so solemn as that of all the Judges The Lord Chancellor Bacon in his profound Book of the Advancement of Learning dislikes all Precedents that taste of the times and advises that Precedents should be deriv'd from good and moderate Times The only reason that I find given for that proceeding in the case of Denzill Hollis is that given by Mr. J. Croke viz. That otherwise there would be a failure of Justice This reason must be grounded either upon the Infrequenecy of Parliaments or upon an opinion that Parliaments will be partial in cases of their own Members As to the first of these the long intervals between Parliaments This under favour ought to be no reason especially to come from a Judges's mouth I have a great honour for the memory of that Reverend Judge who must needs know and ought to assert it That by the Law Parliaments ought to be very frequent and Judges ought to take part with the Law and to maintain it Before the Conquest as 't is untruly call'd by the Law Parliaments were to be held twice a year as appears by King Edgar's Laws c. 5. in Lamb. de priscis c. And the Mirror of Justice c. 1. Sect. 3. tells us that King Alfred ordain'd for a perpetual Usage that twice in the year and if need were oftner The Seniors or Earls should assemble themselves at London to speak their minds And 't is reckon'd among the Abusions as they are there term'd of the Common-Law That whereas Parliaments ought to be twice in the year for the salvation of the Souls of Trespassers and at London too that they are there but very seldom and at the pleasure of the King for Subsidies and Collections of treasure And by the Statute of 4 E. 3. c. 14. Parliaments ought to be once a year and oftner if need be I have heard a Civilian in the House of Commons give this construction to that short Act that the words If need be should referr to the Parliaments being once a year aswell as to the words and oftner and I never heard that any man was of that opinion but himself but I remember he himself laught when he spoke it but he was more laught at for that ridiculous exposition And should that sense be put upon it it would make the Law a very ridiculous thing indeed for then the short of it would be this That we should have a Parliament when there is need But to refute that fancy there is another Statute of the same King's time namely 36 E. 3. c. 10. which says that for redress of divers mischiefs and grievances which daily happen it s accorded that a Parliament shall be holden every year without any such restriction If need be And by the Act of 16 Car. 2. c. 1. These Acts are declared to be in force And farther it is Declared and Enacted That the holding of Parliaments shall not be discontinued above three years at the most Now how can any man say in Defiance of these Laws That there can be any long discontinuance of Parliaments His now Majesty has been pleased graciously to declare his Resolution often to meet his People in Parliaments and in the word of a King there is power Nay we have the King's Oath for it for he is sworn to observe the Law And eadem praesumitur esse mens Regis quae legis And it is an high presumption for any man to think or say otherwise For that other ground of that reason given by Mr. Justice Croke viz. That there would be a failure of Justice if
the jurisdiction of the Court. Et dicit quod si quis eorum speaking of the Lords of Parliament deliquerit erga Dominum Regem in Parliamento aliquo in parliamento debet corrigi emendari non alibi in minori curia quam in Parliamento Vnde non intendit quod Dominus Rex velit in curia hic de bujusmodi transgressione contemptu factis in Parliamento responderi Note the Plea as to the offence is very general not only restrain'd to the offence of absenting from the Parliament but to any trespass or offence in Parliament Si quis deliquerit And it would be a little improper to call absence from Parliament offence committed in Parliament for it looks like the quite contrary But in a just sence any offence committed by a Member relating to the Parliament though done out of the House is termed an Offence in Parliament So Printing any thing by Order of Parliament though it be done and executed in another place yet it may be said to be done by the Parliament and in Parliament if it be by their Order and in time of Parliament We may note further that this is a prosecution only against one particular Person for a particular Offence and Contempt charg'd upon him But in our Case the prosecution is against the very Speaker of the Parliament and is in effect a prosecution against the Parliament for it is against him for what he did by command and order of Parliament and sitting the Parliament And though the Attorney-General reply'd to the Bishops Plea that the King might sue in what Court he would yet the Bishop rejoins upon him and maintains his former Plea and there it rests so that as Sir E. C. observes that the Bishops Plea did stand and was never over-rul'd agreeable to the resolutions of former times So this I. may claim as an authority on our side And though Mr. Plowden the Lawyer to the like Information put in against him and others 1 and 2 Philip and Mary pleaded that he remain'd continually from the beginning to the end of the Parliament and travers'd the absence whereby he passes by the advantage of the Plea to the jurisdiction yet this is no Authority against us for he might think fit Renunciare juri pro se introducto having so true an occasions of clearing himself from that scandalous imputation of being absent from doing his duty in Parliament which certainly is a very high breach of Trust and he might be impatient of lying under it and therefore thought it best to traverse it to clear his Reputation in that point yet I must confess I should never have advis'd it nor was there any further prosecution against him I will mention but one most excellent Record more and it is a Record out of the Parliament Rolls 27 E. 3. Num. 9. Sir Cotton's Abridgem and with that I will Conclude I take it to be very pertinent and I am sure it is very seasonable Among the Petitions of the Commons One is They pray the King that he will require the Archbishop and all other of the Clergy to Pray for the Peace and good Government of the Land. And for the King 's good will towards the Commons The King's Answer is The same prayseth the King. And I wish with all my heart it were the Common-Prayer I have but one Prayer more to make and that is That this Court will allow the Defendant's Plea. A DISCOURSE Concerning the Ecclesiastical Jurisdiction IN THE Realm of England Occasioned by the Late COMMISSION IN Ecclesiastical Causes By Sir Robert Atkyns Kt. of the Honourable Order of the Bath and late One of the Judges of the Court of Common-Pleas LONDON Printed for Tim. Goodwin at the Maiden-Head against St. Dunstans Church in Fleet-street MDCLXXXIX A DISCOURSE Concerning the Ecclesiastical Jurisdiction IN THE Realm of England Occasioned by the Late COMMISSION IN Ecclesiastical Causes THE Preamble acknowledges That the King justly and rightfully is and ought to be Supream Head of the Church of England and is so recognised by the Clergy in their Convocations And it is Enacted That the King and his Successors shall be taken c. the only Supream Head in Earth of the Church of England And shall have and enjoy annexed to the Imperial Crown all Jurisdiction c. Authorities c. to the said Dignity of Supream Head of the same Church belonging And that the King and his Heirs and Successors Kings of this Realm shall have full Power and Authority from time to time to visit repress redress reform order correct restrain and amend all such Errors Heresies Abuses Offences Contempts and Enormities whatsoever they be which by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be reformed repressed ordered redressed c. Any Usage Custom foreign Laws foreign Authority Prescription or any thing to the contrary notwithstanding Note This Act doth not make the King to be the Supream Head of the Church of England but acknowledges that he ever hath been so as it is recited by the Statute made in the same Parliament of 26 H. 8. c. 3. the Act for the First-Fruits See the Preamble towards the latter Part being the first Paragraph See also the Oath prescribed by the Statute of 35 H. 8. cap. 1. for the Succession Paragraph the 11th in Mr. Keeble's Edition of the Statutes at large very full to this purpose to shew that the Act of 26 H. 8. cap. 1. gave the King no new Title but only acknowledged that he ever had a Right to it and that the Bishop of Rome had but usurped it And as the Act of 26 H. 8. cap. 1. gave the King no new Title so it gave him no new nor further Authority in Spiritual and Ecclesiastical things nor over Spiritual and Ecclesiastical Persons than what he had before Therefore it is to be enquir'd what jurisdiction or Authority the King had before the making of that Act and how the Ecclesiastical Jurisdiction was of right and duly before exercis'd and administred viz. in what Courts by what Rules Laws or Canons and by what Persons It is clear in Law that the King himself merely in his own Royal Person could never take to himself the Hearing of any Cause Ecclesiastical or Temporal and adjudg and determine the Cause himself For by the Law and Constitution of the Realm the King hath committed all his Power Judicial to divers Courts some in one Court some in another as is held in Sir Ed. Cokes 2d Institutes fol. 186. at the lower end of that folio and in the middle of fol. 187. All Matters of Judicature and Proceedings in Law are distributed to the Courts of Justice and the King doth judg by his Justices See the Reports that pass by the Name of Sir Ed. Cokes 12th Reports fol. 63. the Case of Prohibitions Which is true as to Ecclesiastical Causes as well as Temporal for every Man knows that there
or lawfully may be Reformed Redressed Corrected c. In Sir Edw. Cokes 12 Rep. fol. 49 It was Resolved Trin. 6. Jae Per totam Curiam in the Court of Common-Pleas there being then Five Judges of that Court Coke being Chief Justice That the High Commissioners by vertue of their Commission and that Act of Parliament ought to proceed according to Ecclesiastical Law. Secondly If their Commission gave them any Power which was not allowed or warranted by that Act of Parliament it was not Legal which proves that such Power cannot be exercis'd by a Commission under the Great Seal merely without an Act of Parliament See Drakes Case in Justice Croke's Reports of the time of King Charles fol. 220. There it is also Resolv'd That the King by his Commissioners cannot alter the Ecclesiastical Law nor the Proceedings of ☞ it And if the Word Lawfully had not been in that Act of 1. Eliz. yet it must have been so intended and the Judges of the Common Law who are proper Judges Expositors and Interpreters of Acts of Parliament would have so understood it as appears by the Resolution of the Judges in the Case in the same 12. Rep. of the Lord Coke fol. 84 85. and little regard therefore was given by the Judges to Commissions under the Great Seal which the Arch Bishop of Canterbury Abbot said had been made in like Cases in the Times of King Hen. VIII and Ed. VI. In the last Case ibidem fol. 85. the Chief Justice Coke says He had seen the Commission made to Cromwell by King Hen. VIII to be Vice-gerent and other Commissions to others by his appointment and he refers to the Commission at large inserted in his Book of Precedents See in the same 12. Rep. of Sir Edw. Coke f. 88. Excellent Rules to be observ'd upon such extraordinary Commissions viz. They ought to be solemnly read for they may possibly contain many things against the Law as the Commission in that Case mentioned did The Commissioners may every one of them require Copies of the Commission The Commissioners ought to Sit in an open Place and at certain Days Note also That such Commissions ought not to be kept secret but they ought to be Enrolled in the Chancery That the Subjects may be under a known Authority See Sir Coke's 4. Instit. fol. 332. the middle of that fol. And upon irregular and illegal Commissions in Ecclesiastical Causes the Remedy is by Prohibition out of the Courts at Westminster In the same 4 Instit. fol. 340. the Author hath this Note Nota Stephen Gardiner Bishop of Winchester was depriv'd at Lambeth by Commission from King Edward the VI. made to Ten Persons proceeding upon it ex Officio mero mixto vel promoto omni appellatione remotâ summarie de plano absque omni forma figura Judicii sola Facti Veritate inspecta The Author passes no Opinion upon it Quaere by what Law this was warranted It must be rare and extraordinary otherwise Sir Edw. Coke would not have so specially mention'd it but a Facto ad Jus non valet Argumentum Note That part of the Act of 1 Eliz. viz. the 18th Paragraph before verbatim transcribed viz. of the Queen Eliz. and her Successors granting such Letters Patents or Commissions in Ecclesiastical Causes is repealed by the Act made 16 Car. 1. cap. 11. See it in Mr. Keeble's Book of Statutes at large See the last Paragr or Clause in that Act of Repeal of 16 Car. 1. It is Enacted That no new Court shall be erected or appointed which shall have The like Power or Jurisdiction as the High Commissioners had or pretended to have but that all such Letters Patents Commissions and Grants and all Powers and Authorities thereby granted and all Acts Sentences and Decrees to be made by vertue or colour of them shall be Void Note The late Act of 13 Car. 2. cap. 12. in Mr. Keeble's Book of Statutes does declare that the Ordinary Power of Arch-Bishops and Bishops was not taken away by that Repealing Act of 17 Car. 1. cap. 11. as this last Act dates it But by this Act of 13 Car. 2. cap. 12. in the second Paragraph The aforesaid Repealing Act of 17 Car. 1. and all the Matters and Clauses therein contained excepting what concerns the High Commission Court or the new Erection of some such like Court by Commission are Repealed See the third Paragraph also of the Act of 13. Car. 2. That the High Commission Court shall not be Revived So that I conceive no such Commission nor Letters Patents can now be granted but the Repealing Act of 16 or 17 Car. 1. stands in force against it By what Law or Rules Cromwell in the Time of King Henry VIII and by what Instructions he acted does not appear the Commissions to make him Vicar General which was surely in Imitation of what had been used by the Pope in the time of his Usurpation or that of Vice-gerent in Ecclesiastical Matters which seems to be new and prime Impressionis are not now to be found of which Dr. Burnet in the History of the Reformation of the Church of England makes some probable conjectures fol. 181. and wherein consisted the difference between those two Authorities and Titles and the Commissions for the exercise of them is not easy to find out But the thing then principally design'd was to suppress the religious Houses belonging to the regular Clergy which were great Supports to the Popish Hierarchy not at all to impeach the Lawful Power and Jurisdiction of Episcopacy for we find at the same time as Cromwell's Commissions were in force and had been then but newly passed That Cranmer Arch-Bishop of Canterbury made his Metropolitical Visitation under which as I conceive most properly falls the Conusance of any contempt or abuse committed by any of his Suffragan Bishops if not in a Provincial Synod Archiepiscopi Jurisdictioni subsunt immediate suffraganti See Lind. Provin The exclusion of the Pope in the Time of King Hen. VIII made no diminution of the Power or Jurisdiction of the Clergy as to determining of Ecclesiastical Causes or making Canons Constitutions and other Synodical Acts as is rightly observ'd by Dr. Heylin in his Introduction to the History of Laud late Arch-Bishop of Canterbury upon this ground it is that to this day they exercise all manner of Ecclesiastical Jurisdiction in their own Names and under the distinct Seals of their Offices the Statutes that made some Alteration in the matter being all repealed See Dr. Heylin's Introduct aforesaid ibid. fol. 341. The Legislative Power in Matters Ecclesiastical continues in the Convocation for making Canons and Constitutions confirmed by the King and Parliament Discipline and the Admonition still resides in the Bishops and those under them In Case of any Irregularity in the Metropolitan Resort must doubtless be to the Head of the Church upon Earth the King as it was in the Case of Arch-Bishop Abbot who shooting at
a Deer unfortunately kill'd the Keeper and his Jurisdiction he being suspended was supplyed by Commission as you may read in Dr. Heylin of the Life of Arch-Bishop Laud in the 87th fol. of the Book it self but more fully fol. 170. The Bishop of London is next in Place and Dignity to the Metropolitans see his Priviledges ibid. 185. See Dr. Heylin's Judgment in the Work of Reforming the Church either in Doctrine or Exercise of the Discipline pertinent to the Matter now in hand but in Point of Law it would be no very difficult thing to discover him to be mistaken fol. 327. See the Power of the Metropolitan and of the Appeal from him to a Provincial Synod and a Stop put there and a ne ultra and that there is no Vicar upon Earth appointed to be the Supream Judge in Ecclesiastical Matters in the Opinion of the Council of Nice discours'd of by Dr. Stilling fleet in his Antiquities of the British Churches fol. 100. but still it must be understood that this fixed Power in the Ecclesiastical Judges and Courts in England is deriv'd from the Crown but now under the Crown setled in this Method not to be interrupted this is quoad Potestatem Jurisdictionis non Ordinis FINIS Introduction Time and Place not material unless the Defendant make them so by his Plea as here Plea. Conclusion of the Plea. Three Points First Point First Proposition Reason Authority The Town-Clerk of Athens The Party to a Suit. Lord Beauch Case A Difference Councellor Attorney Witness Juror Justa occasio lequendi The Minor Proposition The Commons as now elected have ever been a part of the Parliament Dr. Heylin in the Life of Archbishop Laud. Sir Rob. Filmer Dugd. in his Orig. Juridic Mr. Pryn in his Preface to Sir Rob. Cotton's Abr. as he conjectures Dr. Manwaring Pryns Plea for the Lords â—5â— King Charles the Second Fol. 32. Fol. 223. of his Works The Commons as now constituted began before 49 H. 3. Rushw. Hist. Collec Part 1. fol. 52. Proof that the House of Commons have ever been a part of the Parl. In his Pref. to his 10th Rep. Proof by Records of Parliament 51 E. 3. 5 H. 4. nu 71. 5 H. 4. na 74. Mr. Pryn ut supra fo 771. Addresses to the King ought to be with Reverence â—1 H. 6. Thorpes Case Exâ—hequor Records H. 12. E. 4. in the Exchequer E. 2. S. Albans 11 H. 4. num 59. Proof by Acts of Parliament 5 R. 2. Parl. 2. C. 4. 2 H. 5. pars 2da Numb 10. Historians and Antiquaries Et Populi Conventus Seld. Tit. of Hon. pag. 702. in a Case between the Arch-Bishop of York and the Bishop of Worc. Mag. Char. 9 H. 3. Object 1. Fol. 709. The Ancientest Writ of Summons that Mr. Selden had seen for a Peer was but 6 Johannis Tit. of Hon. 707 708. Mr. Pryn's Plea for the Lords fol. 113. but mis-paged 2. Object 49 H. 3. 28 E. 1. 35 E. 1. 15 E. 2. 31 E. 3. 18 E. 2. 18 E. 3. 26 E. 3. 1 H. 5. the Indenture return'd by the Sheriff of Wiltshire recites their trust in the same words and pursues the words of the Writ 2 H. 4. 25 H. 6. 16 E. 2. 27 H. 6. Object Pennings of Ancient Acts of Parliament Petitions for Freedom of Speech c. Tit. of Honout Fol. 603 604. Fol. 603. Fol. 176. The Freeholders grand Enquest fol. 40. 41. 28 E. 1. c. 8. 13. Elect. of Sheriffs The late E. of Clarend in his Answ. to Hobs. Petition of Right 3 Car. 1. Stat. of Provisors 25 E. 3. Mr. Pryn's Plea for the Lords 389 390. All three Estates one entire Body and Corporation 14 H. 8 3. Fineux Ch. Just. Ferrer ' s Case Crompt Jurisd Sir Pierce de la Mare This is contradicted by Mr. Pryn in his Preface to Sir Cotton's Abr. fol. 5 6. The Powers of Parliament Of the Power and Jurisdiiction of the Parliament Nothing acted in this present Case but what is within their Power The House of Commons the Grand Inquest of the Nation The printing Dangerfield's Information 46 E. 3. C. Search of Records must be Free. See the 1 st St. in such Cases of Reporting false News viz. W. 1. C. 34. the Reporter is only to be imprison'd till he have found out him of whom the word was moved So is 2 R. 2. C. 5. the Stat. de Scandalis Magnatum So is 12 R. 2. c. 11. Dier 155. The Lady Morirsons Case Crok 162. but more fully in Marshes Actions of Slander fol. 19. 20. If an action of Slander be brought for Reporting what another had said Slanderously the Pl. in his Declaration must aver that A. did never so report the Defendant may Plead that in truth A. did so report and it is a good Plea by Tanfield Leonards Rep. 1. P. 287. in an Indictment upon the Stat. of W. 1. C. 33. and 2 R. 2. c. 5. for reporting false News it was found billa vera as to the Defendant's reporting the false News but as to the maliciose seditiose Ignoramus and the Defendant therefore discharg'd The Persons too great to be so used John Earl of Moreton So called 1 Eliz C. 3. 4. H. 8. c. 8. the House of Commons call'd the Honourable House in the Petit. of Rich. Strode which is part of the Act. 2d Point Mr. Pryn E Contra in his Preface to Sir Rob. Cot. Abr. but nothing clear 1 â—ac c. 1. The like words Fol. 72. Med. Mr. Pryn. ibid. 388. A Resolve of all the Judges in the point Sir Rob. Cott. Abr. pag. 651. Mr. Pryn in his Plea for the Lords calls this a famous memorable Case and says he was then ch Baron A second Resolution of all the Judges in the point A Protestation of the Commons against Impeachments other than in the House c. The like Claim of the Lords and confirm'd by Act. An Act of Parliament in the point Pryn's Plea for the Lords fol. 401 at large 4 H. 8. c. 8. Memorials of the English Affairs fol. 12. See Rushw. Collect. 1 part pag. 672. Appendix to it pag. 44. The Resolution of the Commons in Irewinnard's Case is called the Judgment of the most high Court of Parliament If it had been clear that the King's-Bench could have punished it they would have begun with it there but they try'd the Council and the Star-Chamber first King Charles the Second Fol. 15. â— Iust. fol. 17. 26 H. 8. c. 1. * Sir Hen. Hebâ—i ' s Reports f. 63. It is said by the Judges of the Common-Pleas That the Power of Justice is in the King as Sovereign originally but afterwards setled in several Courts as the Light being first made by God was after setled in the great Bodies of the Sun and Moon And Sir E. 〈◊〉 4 Inst. f. 70. in the Chapter of the Court of Kings-Bench to the same effect * See the Original of Bishops Courts and Jurisdictions severed from the Hundred Court distinct from Provincial and national Synods and that there were then Ecclesiastical Laws the Chartter of K. William he 1st to Remigius then Bishop of Linc. Mr. Selden's Notes ad Eadmerum f. 167. * Sir Ed. Cokes 5. Rep. The Case of the Kings Ecclesiastical Law f. 40. * Not by extraordinary Commissions at the first instance but only gradually upon Appeales Sir John Davies Reports fol. 91. the Case of Premunire 4. Inst. 339. of Appeals This Statute was the ground for Commissions to hear and determine Spiritual Causes ad primam Instantiâ—m ☞ 4. Inst. 340. Dr. Burnet's Hist. of the Reformation 183. med folii * See Dr. Field of the Church fol. 511 512. The antient Canon requires the consent of 12 Bishops to censure judge and depose a Bishop * See Mr. Bagshaw's Arguments in Parliament against the Canons made by the Convocation 1640 fol. 19.