Gulielmus Nubrigensis relates Qâ—cunque Rege tyrannice occiderat eo ipso personam et potestatem Regiam induens suo quoque occisori tandem post modicum fortunam inveteratae consuetudinis lege relicturus Quippe ut dicitur à centum retrò annis et eo amplius cum Regum ibidem numerosa successio fuerit Nullus eorum senio aut morbo vitam finivit fed omnes ferro interiere suis interfectoribus tanquam legitimis successoribus regni fastigium relinquentes ut scilicet omnes qui tanto tempore ibidem imperasse noscuntur illud quod Scriptum est respicere videatur OCCIDISTI INSUPER ET POS SEDISTI Wherefore to prevent the dangerous Consequences of these false Glosses on the Statutes of 25 E. 3. c. 2. 11 H. 7. c. 1. I shall lay down these infallible grounds 1. That all publike Laws are and ought to be founded in Justice righteousnes and common honesty for the preserving securing the lives persons estates of all men especially of lawful Kings and Supreme Magistrates from all violence invasion force disseisins usurpations conspiracies assassinations being against all rules of Law and Justice Exod. 20.12 to 18. c. 21 22. 23. Mat. 5.17 to 48. c. 7. 12. Deut. 4.18 Psal 19.8.9 Ps 119.7.106 137 138·160 167. Rom. 7.12 Deut. 6.25 Ps 33.5 Ps 45.7 Ps 72.2 Ps 74.15 Prov. 8.18 Prov. 24.21 Rom. 13.1 to 7. Lu. 20.25 Tit. 3.1 2 3. 1 Tim 1.9 10. Job 20.19 c. 24.2 Mich. 2.1 2 3 4. Jer. 6.7 c. 20.8 c. 22.3.17 Ezech. 45. c. Hab. 1 2. to 10. Lu. 3.14 Whence Cicero thus defines Law Lex est ratio summa insita in natura quae jubet ea justa quae facienda sunt prohibe que contraria Therefore these 2. Statutes were purposely made for those great ends and ought to be interpreted onely for the best advantage of Lawfull Kings and their adherents not for the indemnity impunity encouragement of Traytors Rebels Intruders Usurpers 2ly What Tully writes of the Roman Senators we ought to doe the same of our English Parliaments and Legislators Ea virtute et sapientia majores nostri fuerunt ut legibus scribendis nihil sibi aliud quam salutem atque utilitatem reipublicae proponerent Whence he there inferrs A Legibus nihil convenit arbitrari nisi quod reipublicae conducat proficisci quoniam ejus causa sunt comparatae Therefore these Laws are to be interpreted for the best security safety preservation of the lawfull heads of the Commonwealth and their rightfull heirs and loyal dutifull subjects not for their destruction and the indemnity security of Usurpers Traytors Rebels aspiring after their Crowns Thrones Assassinations to the publike ruine 3ly All the branches of the Statute of 25 E. 3. c. 2. made at the special request of the Lords and Commons and that by a lawful King at that season declare this Statute to be meant only of a lawful King whiles living whether in or out of actual possession of the Realm not of a bare Usurper in possession without right as Sir Edward Cooke expounds it else it will necessarily follow That it shall be no Treason at all to compasse or imagine the death of the King de jure if once dispossessed for a time by Violence and Treason or of his Queen or eldest son and heir or to violate his Queen or eldest daughter not married or to levy war against the lawfull King in his Realm or to be adherent to his Enemies within the Realm or elsewhere or to counterfeit his Great or Privy Seal or mony c. But high Treason in all these particulars in relation only to the Vsurper in possession without and against all right and Title which would put all our rightful Kings and Supreme Governors into a farr worser sadder condition than their Trayterous Vsurpers and into a worse plight than every Disseisee or lawfull heir intruded upon by abatement or dispossessed by torcions unjust or forcible entries for which our Common and Statute Laws have provided many speedy and effectual means of recovering their possessions and Damages too against Disseisorâ— Abators Intruders on their Inheritances Freeholds for exemplary punishment fining imprisonment of the Disseisors Abaters but no means of recovery at all for our dishinherited disposseâ—ed Kings or their heirs against Intruders Vsurpers of their Crowns nor punishments against them their Confederates or Adherents if our Laws concerning Treasons extend not unto them though Kings de jure but only to Usurpers de facto et non de jure and if the Statute of 11 H. 7. exempt them from all kinds of penalties forfeitures by the lawfull King when he regains possession of the Crown as some now expound them 4ly It is resolved both by our Statutes Judges Law-books over and over That there is no Inter-regnum in our hereditary kingdom or any other That so soon as the rightfull hereditary King dies the Crown and Realm immediatly descend unto and are actually vested in the person and possession of the right heir before either he be actually proclaimed or crowned King and that it is high Treason to attempt any thing against his Person or royal authority before his Coronation because he is both King de jure de facto too as was adjudged in Watsons and Clerks case Hill 1. Jacobi Hence upon the death of King Henry the 3. though Prince Edward his heir was absent out of the Realm in the holy wars where he received a dangerous wound by an assassinate and was not certainly known to be alive yet all the Nobility Clergy and people going to the high Altar at Westminster swore fealty and allegeance to him as their King appointed a New Seal and Officers under him qui thesauram Regis pacem regni fideliter custodirent Sicque pax Novi Regis Edwardi in cunctis finibus regni proclamatur Edwardo fidelitatem Jurantes qui si viveret penitus ignorarunt Besides it is both enacted resolved in our Statutes Lawbooks That Nullum tempus occurrit Regi and that when the King is once in legal possession of his Crown Lands or any Lands holden of him by reason of his Praerogative he who enters or intrudes uppon them shall gain no freehold thereby yea if the Kings Tenant dieth and his heir enter into the lands his ancestors held of the King before that he hath done his homage and received seisin of the King though he hath a right of inheritance to the Lands by Law yet he shall gain no freehold and if he die yet his wife shall not be indowed because he gained no freehold by his entry but only a naked possessioÌ„ much les then shal a meer Intruder gain any Freeheld or interest in the Crown or Crown lands it self to the prejudice of the rightfull King or his heirs This is most evident by the sacred presidents of K. David still King when unjustly dispossessed driven out of his
right duty to be personally present in Parl. and ever have been so as well as the Commons and neither of them to be excluded since they all make up but one Parliament that no Lords Commons ought to depart from it without special leave under pain of amercement and other penalties That no binding Law can be passed without their joynt consents And that the Commons alone are no more a Parliament of themselves without the King and Lords than the Common Councel of London are an intire City or Corporation without the L. Mayor and Aldermen or the Covent without the Abbot the Chapter without the Dean or the legs or belly a perfect man without the head neck and heart Sixthly The antient and constant form of endorsing Bills in Parliament began in the Commons house in all Parliaments since the House of Commons unanswerably demonstrates the Commons of Englands acknowledgement of the Lords right to sit vote assent or dis-assent to Bills in Parliament viz. Soit Bayle a Seigneurs let it be delivered or sent up to the Lords Yea the Commons constant sending up of their own Members with Messages to the Lords their receiving Messages from them and entertaining frequent conferences with them in matters wherein their opinions differ in which conferences the Lords usually adhere to their dissents unlesse the Commons give them satisfaction and convince them and the Lords oft times convince the Commons so far as to consent to their alterations of Bills Ordinances Votes and to lay them quite aside is an unquestionable argument of their Right to sit and vote in Parliament and of their Negative voice too All which would prove but a meer absurdity superfluity if the Commons in all ages and now too were not convinced that the Lords had as good right to sit and vote in Parliament and a Negative dissenting voice as well as they never once questioned nor doubted till within this year or two by some seditious disciples of Lilburns and Overtons tutoring who endeavoured to evade their justice on them Seventhly This just right of the Lords is expresly and notably confirmed by all the Commons of England in the Parliament of 31 H. 8. c. 10. concerning the placing and sitting of the Lords and great Officers of State in the Parliament House made by the Commons consent it being in vain to make such a Law continuing still till this very day both in force and use if they had no lawfull right to sit and vote in Parliament because they are not elective as Knights and Burgesses are And likewise by the Statute of 39 H. 6. c. 1. made at the Commons own Petition to repeal the Parliament held at Coventry the year before and all procedings of it by practice of some seditious persons of purpose to destroy some of the great Nobles faithfull and lawfull Lords and Estates meerly out of malice and greedy and unsatiable covetousness to possesse themselves of their Lands possessions offices and goods whereby many great injuries Enormities and Inconveniences well nigh to the ruine decay and universal subversion of the kingdom ensued The very design of our Lilburnists Sectaries and Levellers now out of particular malice and covetousness to share the Lords and all rich Commoners lands and estates between them being poor indigent covetous people for the most part scarce forty of them worth one groat at least before these times and wars 8ly This apparent Right of theirs is undeniably ratified acknowledged by the very words of the Kings writs in all ages by which the Lords themselves are summoned to the Parliament running in this form Carolus c. Charissimo consaguineo suo Edwardo Com. Oxon. salutem Quia de advisamento consensu consilii nostri pro quibusdam arduis et urgentibus negotiis Nos statum et defensionem Regni nostri Angliae Ecclesiae Angli canae concernentibus quoddam Parliamentum nostrum apud Civitatem nostram Westmonasterium 12 die Novemb. prox futuro tenere ordinavimus et ibidem vobiscum cum Praelatis Magnatibus et Proceribus dicti regni nostri colloquium havere ettractare Vobis sub fide ligeantiis quibus nobis teneamur firmiter injungendo Mandamus quod consideratis dictorum negotiorum arduitate periculis minentibus cessante excusatione quacunque dictis die et loco personaliter inter sitis Nobiscum ac cum Praelatis Magnatibus Proceribus praedictis super dictis negotiis tractaturus vestrumque consilium impensurus sicut Nos et honorem nostrum ac salvationem et defensionem Regni et Ecclesiae praedictorum expeditionem que dictorum negotiorum diligitis nullatenus omittatis Teste c. Which writs firmly require and command their personal presence counsel and advise in all Parliaments without any excuse and that by the faith and allegiance which they owe to the King and as they doe tender the King and his honour the salvation and defence of the Realm and Church of England and the dispatch of the arduous and urgent businesses which concern them Which is likewise seconded expressed in the very words of all the writs for election of Knights and Burgesses the form and substance whereof are antient and can recive no alteration nor addition but by Act of Parliament as Sir Edward Cook resolves By this Writ the Prelates Great men Nobles of the Realm are summoned to the Parliament there to treat and confer with the King of the arduous and urgent affairs and defence of the King Realm and Church of England as the first Clause of the writ Carolus c. quia c. pro quibusdam arduis et urgentibus negotiis Nos Statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernent quoddam Parliamentum nostrum c. teneri ordinavimus ibidem cum Praelatis Magnatibus Proceribus dicti Regni nostri colloquium haberet tractare Tibi praecipimus And the Commons are summoned to perform and consent to those things which shall there happen to be ordained by this Common Council of the Kindom c. And if they are thus summoned not to treat amongst themselves as an independent intire Parliament but to confirm and consent to what the King Prelates Great men and Peers the Common Council of the Realm shall ordain about such affairs as they must of necessity admit the King Lords and Peers to be altogether as essential yea more principal eminent Members of Parliament though not elective as the Knights and Burgesses who are but summoned to consent to and perform what shall happen there by their common advise to be ordained or at least to consult and advise with them as their inferiours not to over-rule them as their superiours and the only Supream power authority in the Kingdom So if they will totally exclude either King or Lords from the Parliament who are distinct principal and essential Members of it as well as the Commons and have always been so reputed until now
proximam post Ascentionem multiplicabantur contra Regem variae diatim querimoniae eo quod promissa sua non observabat contemnens claves Ecclesiae ET CHARTAE SUAE MAGNAE TOTIES REDEMPTAE TENOREM Fratres quoque suos uterinos intollerabiliter contra jus regni et legem ut naturales terrae erexit nec sinebat aliquod brâ—ve exire de Cancellaria contra eos c. REDARGUâ—US EST INSUPER REX quod omnes alienos promovet et locupletat et suos in subversionem totius Regni despicet et depraedatur Et ipse tam egenus est cum alii abundent quod thesauri expers jura Regni nequit revocare imo nec Wallensium quae sunt hominum quisquiliae injurias propulsare et ut brevibus concludatur Excessus Regis tractatus exigit speciales Rex autem ad se reversus cum veritatem redargutionis intellexisset licet sero humiliavit se asserens iniquo consilio saepius suisse fascinatum promisitque sub magni juramenti obtestatione super altare et feretrum S. Edwardi quod pristinos errores planè et plenè corrigens suis naturalibus benigne obsecundaret Sed crebras transgressiones praecedentes se penitus incredibilem reddiderunt quia nesciebant adhuc Magnates quomodo suum Prothea tenere voluissent quia arduum erat negoâ—ium et difficile dilatum est Parliamentum usque ad festum Sancti Barnabae apud Oxoniam diligenter celebrandum Interim Optimates Angliae utpote Gloverniae Legrecestriae et Herefordiae comites Comes Marescallus et alii praeclari viri sibi praecaventes providentes confaederati sunt quia pedicas et laqueos alienorum vehementer formidabant et Regis retiacula suspecta nimis habuerant veniebant cum equitibus et armatis et comitatu copioso communitâ— Parlamento autem Oxoniae incipiente solidabatur Magnatum et consilium immutabile exigendo constantissime UT DOMINUS REX CHARTAM LIBERTATUM ANGLIAE quam Johannis Râ—x pater suus Anglis confecit confectam concessit quamque idem Johannes renere juravit FIRMITER TENE AT ET CONSERVET quamque idem Rex Henricus multoties concesserat et tenere juraverat ejusque infractores ab omnibus Angliae Episcopis in praesentia sua et totius Baronagii horribiliter â—ecit excommunicare ipse unus fuerat excommunicantium Exigebant insuper sibi fieri Justiciarium qui justitiam faceret injuriam patientibus aequanimiter divitibus et pauperibus Quaedam etiam alia Regnum contingentia petebant ad communem Regis regni utilitatem pacem simul honestatem Quorum consiliis et provisionibus necessariiâ— Dominum Regem frequenter et constantissime consulendo rogitabant obtemperare jurantes fide mediante et mutuo dextras exhibentes quod non omitterent propositum persequi pro pecuniae vel terrarum amissione vel etiam pro vita et morte sua et suorum Quod Rex recognoscens graviter juravit consiliis eorum obsecundare et Edwardus filius ejus eodem est juramento astrictus After which they expelled and chased away all the Aliens about the King Et ita terminatur Parliamentum apud Oxoniam fine terminato et certo non opposito Hereupon there issued out sundry Writs and Commissions for reformation of abuses and punishing offences against the Great Charter recorded in Rot. Claus 42 H. 3. m. 1. 3.6 and that PER CONSILIVM MAGNATUM as those Records attest Rot. Pat. An. 43 H. 3. m. 10. n. 41. n. 15. there is a large Letters Patents of the King recorded in French declaring the good Government that should be for the future the due observation of Magna Charta the Kings faithful promise inviolably to keep the same according to his Oath and promises and that every man injured might freely sue and complain against or arrest the King or any other And Rot. Pat. An. 44 H. 3 m. 4. Schedula m. 5.9 There are Writs and Letters of the King to the Sherifs of every County to the same or like effect All by the advice or procurement of the Nobles Anno 1263. the 47. of King Henryes reign the King and Nobles to procure peace and reconciliation between them submitted themselves to the arbitrement of Lewes King of France touching the Provisions made at Oxford about which they had great contests and differences who solemnly pronounced Sentence for the King against the Barons of England Statuâ—is Oxoniae Provisionibus Ordinationibus et obligationibus penitus annullatis Hoc excepto quod Antiquae Chartae Regis Iohannis Angliae universitati concessae per illam Sententiam in nullo intendebat penitus derogare Quae quidem exceptio Comitem Leicestriae et caeteris qui habeant sensus exercitatos compulit in proposito tenere firmiter Statuta Oxoniae quae fundata fuerant super illam Chartam Where upon they taking up arms wasting and pillaging the Kings Manors Lands and adherents the King in the 48. year of his reign mediantibus viris honoratis paci Baronum acquievit ad tempus ut Provisiones Oxoniae inviolabiliter observarentur which Provisions the King confirmed by his Patents recorded at large in the Tower Rot. Pat. An. 47 H. 3 pars 1. m. 7. n. 25. and pars 2. nu 2. Rot. Pat. 48 H. 3. pars 2. m. 3. Rot. Pat. 46 H. 3. m. 18. Pat. 49 H. 3. m. 10.15 18. Claus 49 H. 3. m. 4.5 Claus 50 H. 3. m. 1. dorso There are several Patents Commissions Proclamations procured by the Lords from the King for the reading proclaming and inviolable keeping of the Great Charter and Franchises of the Realm and reformation of Grievances contrary thereunto overtedious to transcribe and the Agreements between rhe King and Barons touching the same King Edward the 1. in the 25. year of his reign by his own regal Authority without grant in Parliament raised the Custom of Woolls to 40 s. upon every sack which he levied whereas before they payed onely half a mark a sack And likewise summoned some Nobles and all those who held of him by Knights service with all others who had lands to the value of 20 l. or upwards a year to be ready with rheir horses and arms at London on the feast of S Peters ad Vincula to pass over with him into Flanders to serve there in the Wars at the Kings wages Hereupon the Earles Marshal and of Hereford with other Nobles refused to goe inâ—o Flanders and drew up this Notable Petition or rather Remonstrance to the King against this unjust Imposition forein service and other Grievances against the Great Charter and their Liberties which they sent to Winchelsey by Messengers ex parte Comitum sui regni as Walsingham relates Haec sunt nocumenta quae Archiepiscopi Episcopi Abbates et Priores Comites et Barones et tota terrae Communitas monstrant Domino nostro Regi et humiliter rogant eum ut ad honorem suum
ad ipsum Regem confirmationem omnium istorum sub sigillo suo tanquam ab eo qui 〈…〉 â—tus erat cedendum malitiae temporis censuit obtinuerunt Pro eonfirmatione et harum rerum omnium dedit populus Anglicanus Regi denarium nonum bonorum suorum Clerus vero Cantuariensis Decimum et Clerus Eboracensis Quintum qui propiordamno fuit So Walsingham truly relates the History of this transaction These Statutes thus obtained by the Earls and Barons from the King are printed in our Statutes at large with the excommunication of the Prelates then denounced against the infringers of them in Rastals Abridgement of Statutes Sir Edward Cooks 2 Institut p. 527. to 537. being thus intituled Confirmationes Chartarum de Libertatibus Angliae et Forestae et Statutum de Tallagio non concedondo made both in the 25 year of Edward 1. not in the 34 as our Statute books and Sir Edward Cook misdate the latter of rhem The differences between the King these Earls and Nobles touching these liberties with his confirmation of them and the aid granted him for the same are likewise recorded in the Patent Roll of 25 Ed. 2. par 2. m. 6 7 9. And Claus 25 E. 1. m. 2.5.14.18.76 dors there are sundry Writs and Proclamations sent to all the Sherifs for the keeping of Magna Charta in all its articies and to the Bishops to excommunicate the Infringers of them agreeing with Walsinghams relation Anno 1299. the 26 of King Edward the first the king holding a Parliament at York the foresaid Earls because the Confirmation of the Charters forementioned was made in a forein land requested that for their greater security they might be again confirmed by the King in England which the Bishop of Durham and three Earls engaged he should doe upon his return out of Scotland with victory Whereupon this King the next year being the 27 of his reign holding a Parâ—iament at London Ubi rogatus a Comitibus saepe dictis ut Chartarum confirmationem renovaret secundum quod in Scotia promiserat post aliquas dilationes instantiae eorum acquievit hac additione Salvo jure Coronae nostrae infine adjecta Quam cum audissent Comites cum displicentia ad propria recesserunt sed revocatis ipsis ad quindenam Paschae ad votum eorum absolute omnia sunt Concessa And thereupon the Statutes intituled Articuli super Chartas 28 E. 1. in our printed Statutes and Cooks 2 Institutes whereas it should rather be 27. were then made and published by these Earls and Nobles procurement and Writs sent to all the Sherifs De quibusdam Articulis in MAGNA CHARTA contentis Chartae de Foresta Henrici Patris nostrae observandis Rot. Claus 27. E. 1 m. 17. And Pat. 28 E. 1. m. 14. Commissions are sent into all Counties de Artic. in mag Chart. content Stat. Regis apud Winton edita observandis and that whosoever did not observe every Article should be punished per imprisonamentum redemptionem vel amerciamentum secundum quod transgressio exigeret there being no certain way of punishment before ordained And Claus 28 E. m. 7 8. There are Writs sent to every Sherif to read proclaim magna Charta in his County 4 times every year to proclaim Articulos super Chartas à Rege populo concessos But the Execution of the Articles of the Forest being deferred notwithstanding these Proclamations thereupon King Edward held a Parliament at Stanford the 29 year of his reign ad quod convenerunt Comites et Barones cum eqnis et armis eo prout dicebatur proposito ut executionem Chartae de Foresta hactenus dilatam extorquerent ad plenum Rex autem eorum instamiam importunitatem attendens eorum voluntati in omnibus condescendit To omit all other Presidens these forecited abundantly evidence the gallantry stoutness heroical courage care vigilancy of the Lords in all our Parliamentary Councils to maintain and defend the fundamental Liberties Properties Great Charters of the Realm and to perpetuate them to posterity without the least violation to vindicate re-establish them when infringed and to withstand oppose all unjust aids taxes subsidies when either demanded levied exacted by our Kings though in cases of pretented or real necessity to supply their wants maintain their wars and protect the Realm from forein enemies I shall only produce three of four Historical Presidents more demonstrating what great Curbs Remoraes Obstacles some particular potent Noblemen of great estates alliance publike spirits have been to the exorbitant arbitrary wills power proceedings of our Kings who most endeavoured openly to subvert or cunningly to undermine our publike Laws and Liberties Mat. Paris speaking of the death of Geoffry Fitz-Peeter one of the greatest Peers of that age writes thus of him This year Anno 1218. Geoffry Fitz-Peeter Chief Justice of all England a man of great power and authority TO THE GREATEST DETRIMENT OF THE KINGDOM ended his dayes the 2. day of Octob. ERAT autem FIRMISSIMA REGNI COLUMNA for he was the most firm pillar of the Kingdom as being a Nobleman expert in the Laws furnished with treasures rents and all sort of goods and confederated to all the great men of England by blood or friendship whence the King without love did fear him above all men for he governed the reigns of the Kingdom Whereupon after his death England was become like a ship in a storm without an helm The beginning of which tempest was the death of Hubert Archbishop of Canterbury a magnificent and faithfull man neither could England breath again after the death of these two When K. John heard of Fitz-Peeters death turning to those who sate about him He said By Gods feet now am I first King and Lord of England He had therefore from thenceforth more free power to break his Oaths and Covenants which he had made with the said Geoffry for the peoples Liberty and Kingdoms peace Such Pillars and Staies are great and stout Peers to a Kingdom and Curbs to tyrannical Kings which caused Vortigern the British Kingâ— who usurped the Crown with the treacherous murder of his Soveraign Nobiles deprimere et moribus et sanguine ignobiles extollere quod maximè regiae honestati contrarium est to secure his throne thereby against their predominant power as other Usurpers and Tyrants since have done Therfore of meer Right they ought to have a place and voice in Parliaments for the very Kingdoms safety and welfare without the peoples election William Duke of Normandy having slain the Usurper King Harold with many thousands of Englishmen in the field routed his whole Army and caused the City of London and most parts of England to subject themselves unto him as their Soveraign out of base fear thereupon Stigand Archbishop of Canterbury and Eglesine Abbot of St. Augustine chief Peers of the Realm and Lords and Governors of Kent to preserve themselves their Country Laws and
elect such other persons to represent assent and vote for them in Parliament in whom they most confided Sixthly our Peers in Parliament though they there serve for the good of the whole Kingdom which hath always trusted to them in matters of Counsel Judicature and making Laws yet they represent no persons but themselves only or their families Tenants Friends and Allies which depend upon them and bear their own expences which are so great and chargeable that the Abbot of St. James without Northampton in the Parliament of 12 E. 2. and the Abbot of Leicester in the the 26 of E. 3. being summoned to Parliament petitioned and procured themselves and their successors to be exemped from any future summons to and attendance in the Lords House as Barons of the Realm both because they held no lands of the King by Barony but only in frank almoign and their Predecessors had not formerly or usually been summoned to Parliaments sed vicibus interpolatis only And likewise because it would tend to the great grievance and loss of them and their houses and much impoverish them by reason of the great expence it would bring upon them One Peer and his retinue expending more every Parliament than the wages of 40 or 50 Knights and Burgesses amount to Wherefore there is no shadow of reason why the people should elect them since they doe not represent them nor pay them wages as they doe to their Knights Citizens Burgesses who serve for and represent them Wherefore their Levelling Oppugners may as well argue That our Nobles ought to be elected by the people to their Honors Lands Estates which descend unto them from their Ancestors not from the common people as that they ought to sir in Parliament by the peoples election only to represent themselves in their own right not the people And that the Knights of the Shire ought to be elected to their dignity of Knighthood which the King only confers on them or to their Lands and Freeholds which they enjoy in their own right because they are elected by the Free-holders to sit in Parliament in their right who elected them nor their own alone which Barons doe not 7ly On these grounds the suppressing debasing captivity or slaughter of the Princes Lords and Nobles of a kingdom or Nation is by God himself defined to be an immediate forerunner concomitant cause of the Kingdoms Nations ruine and slavery and a matter of great lamentation Ezech. 19.1.14 c. 17.12 Lam. 1.6 c. 2.2 c. 5.12 Prov. 19.10 c. 30.21.22 Eccl. 10.5 7. Isay 3.4 c. c. 34.11 12 13. c. 40.23 c. 43.28 Jer. 4.9 c. 27.20 c. 29. c. 25.18 19. c. 50.35.41 51 55. c. 52.16 Hos 7.16 Amos 2.15 c. 2.2 3. 2 Kings 24.14 Mich. 3.7 2 Chron. 24.23 Jer. 24.8 9. And the continuing of Kings Princes and Nobles in honour and power in any kingdom and nation are reputed and resolved by God to be the greatest honour happiness defence safety and preservation of that kingdom and people Jer. 17.24 25. c. 22.4 Eccles 10.17 Jer. 30.21 Psal 68.27 28. Prov 8.15 16. Isay 32.1 1. Chron. 23.2 c. c. 28.1 c. c. 29.24 25. Gen. 17.6.16 c. 35.11 2 Sam. 11 12. 1 Chron. 14.2 c. 28.4 5. c. 2 Chron. 2.11 c. 9.8 1 Kings 11.32 36. 2 Chron. 21.6 7. 2 King 8.18 19. 1 Kings 15 45. 2 Chron. 23.3.11.20 21. c. 9.26.27 Numb 24.7 Ezech. 37 22 29. Mich. 2.13 c. 4.8 Therfore they cannot be rejected suppressed by us now without apparent danger ruine and desolation to our kingdom whatever frantick Levellers and others fancy to the contrary who would be more than Kings and Lords themselves over the Nation could they once suppress both King and Lords as they design and endeavour By all which premises it is most apparent That our Lords and Barons sitting voting in Parliament who if you take them poll by poll have in all ages been more able Parliament-men States-men in all respects than the Commons though chosen by the people who alwayes make not choice of the best and wisest men as experience manifests is not only just lawfull in respect of Right and Title but originally instituted upon such grounds of Reason Justice Equity Policy as no rational understanding man can dislike or contradict but must subscribe to as necessary and convenient and so still to be continued supported in this their Right and Honour to moderate the Excesses Encroachments both of King and Commons one upon the other and keep both of them within their just and antient bounds for the kingdoms peace and safety The rather for that the very Act made this Parliament for the preventing of inconveniences happening through the long intermission of Parliaments not only enacts and requires ALL the Lords and Barons of this Realm to meet and sit in every Parliament under a penalty but likewise prescribes an Oath to the Lord Keeper and Commissioners of the Great Seal under severe penalties to send forth Writs of Summons to Parl. TO THEM ALL and in their default enables and enjoyns the Peers of the Realm or any twelve or more of them to issue forth Writs of Summons to Parliament under the Great Seal of England for the electing of Knights Citizens and Burgesses which Act will be meerly void and nugatory if their Votes and Right to sit in Parliament be denyed or the House of Peers reduced to the House of Commons which this very Statute doth distinguish Now whereas our whimsical Lilburnists and Levellers object that the Lords have no right to sit or vote in our Parliaments because they are not elected as Knights and Burgesses by the people under which Notion alone when thus elected they will admit them a place and vote in the Commons house but not otherwise I must inform these Ignoramusses that by the Laws Statutes of our Realm and the custom resolution of our Parliaments the Earls Lords and Barons of the Realm are altogether uncapable of being elected Knights or Burgesses to serve in Parliament and their elections as such meerly void and null in Law to all intents This is most apparent 1. By the very words of the writs of Summons to the Lords whereby they are summoned Nobiscum cum caeteris Praelatis Magnatibus et Proceribus dicti Regni nostri colloquium habere tractare c. vestrumque consilium impensuri c. not to treat conferr and consult with the Knights Citizens and Burgesses 2. By the express words of the Writs for the electing of Knights Citizens and Burgesses which have the same clause and then enjoyn the Sherifs to cause to be elected and returned duos Milites magis idoâ—eos discretos Comitatus praedicti de qualibet Civitate duos Cives de quolibet Burgo duos Burgenses de discretioribus magis sufficientibus c. ad faciendum et consentiendum hiis quae tunc c. Which disables them to elect any Lords or
and otherwise punished for their contempt because bound therto by their voluntary acceptance of such a special Patent and dignity But if they be summoned only by a general Writ against their wills being no Lords of Parl. by special Patent or Writ before this doth neither make the one nor other Barons nor ennâ—ble their heirs males or successors nor oblige them to serne nor subject them to any fine for contempt for then the King by his Writ might summon all the Knights Esquires Gentlemen and any other Commoner Freeman Lawyer Clergy man of the Realm to the Lords House as a Member at his pleasure and fine them for a contempt in not appearing and thereby increase that House in infinitum and make it a mungril House of all sorts of degrees and professions of men instead of aâ— House of Lords to its utter subversion against the fundamental constitution and privilege of that House Therefore such Writs of summons must be void and null in Law as well as the Patent to Abbot Banham as Sir Ed. Cook asserts it for that he was neither Baro nor held per Baroniam Now whereas he asserts That Knights and Esquires who hold not by Barony cannot refuse when summoned by Writ to serve the King in Parliament but yet Abbots and other regular Prelates that hold not by Barony may because they are dead in Law as to secular affairs and therefore not capable to have voice in Parliament unless they hold by Barony and were called by Writ This reason of the difference is most absurd and unreasonable For 1. They are both Subjects to the king alike and so both equally obliged to serve and counsel him in Parliament 2ly If their tenures by Barony could make them capable to have place and voice in Parliament though dead in Law quoad secularia then much more the kings and the kingdoms need of their presence counsel and advice in Parliament touching the weighty affairs concerning himself and the defence and preservation of the Realm and Church of England when specially summoned by his writ to Parliament 3ly Though they were dead in some sence only in respect of their natural capacities to the world yet in their politick capacities they were not so but secular still to sue purchase advise c. as well as Laymen in the right of their Houses 4ly Parliaments being always summoned as well to advise of Ecclesiastical things touching the Church as of temporal things concerning the Realm of England their being dead to the world quoad secularia could no more enable them to refuse to serve in Parliament then Laymen quoad Ecclesiastica negotia therein treated of which concerned the Church and Laymen according to the doctrine in Popish times might as well refuse to serve in Parliament when summoned because they were no Ecclesiastical or religious persons who were properly to consult of the affairs of the Church of England as religious persons be exempted from and refuse to serve therein because dead to the world quoad secularia negotia concerning the King and Realm of England there debated and consulted of 4ly The true and only ground then why such Abbots Priors and all other Clergy men who held not by Barony might refuse to serve in the Lords House of Parliament when summoned by Writ was this that they held not of the King by Barony and upon this ground alone the Abbot of St. James without Northampton summoned to Parliament by Writ Anno 12 Ed. 2. upon his Proctors appearance and Petitions for him in Parliament recorded at large by Mr. Selden out of the Leger-book of the Abby worthy perusal being most full in point was discharged from his attendance his name struck out of the Roll and Register of the Chancery by the Chancellor and his Council as not one of the list of those who ought to be summoned for this very reason because NON TE NET PER BARONIAM nec de Rege in capite sed tantum in puram perpetuam Eleemosynam nec ipse Abbas nec Predecessores sui unquam in Cancellaria irrotulari fuerunt except only in 49 H. 3. m. 10. Schedula voluntarie nec ad Parliamentum citati hucusque VNDE PETIT habuit remedium And upon the self same reason the Abbot of Leicester and his successors were by special Patent in 26 E. 3. de veniendo ad Parliam Consilia nostra et haeredâ—m nostrorum de caetero quieti sint et exempti in perpetuum hough this Abbots predecessors had formerly been summoned to and sate in Parliaments interpolatis vicibus but noâ— continuè because idem Abbas aliquas terras senteâ—ementa de Nobis per Baroniam seis aâ—o modo non tenet per quod ad Parliamenta seu Consilia nostra venire teneatur The King reciting this as the only ground of his exemption and thereupon Nolentes Abbatâ—m indebite sic vexari granted him and his successors this Patent of Exemption upon which his name was cancelled in the Clause Roll of 25 E. 3. part 1. m. 5. dorso and this written in the margin against it Abbas Leicestriae cancellatur quia habet cartam Regis quod non compellatur venire ad Parliamentum And that of Dors Claus 11 E. 3. par 2. m. 11. 13 E. 3. par 2. m. 28. 1. cited by Mr. Selden Sir Edw. Coke in his Margin mentioned in a Bill in Parliament Que toutes les religioses que teignont per Barony sayent tenus de venier au Parlament is also direct iâ— point That those who hold not by Barony are not bound to serve in Parl. be they Religious persons or Lay persons who are not Peers or Lords of Parliament upon general writs of summons such Summons of them being AN UNDUE VEXATION OF THEM as King Edward stiles it in his Patent unless they voluntarily appear upon such a Summons as this Patent informs us those who were summoned in 49 H. 3. all did This reason therefore exempting all Abbots Peers and religious persons from service and attendance in the Lords House in Parliaments though summoned thereto by writ must necessarily exempt all Knights and Laymen from it there being the self same ground justice equity for it in both yea the selfsame unjustice vexation mischief to both and by consequence the selfsame Law And if this be Law as these Presidents Judgements Records expresly resolve it to be beyond contradiction Then it inevitably follows that the General writ of Summons to Parliament alone doth neither create the persons summoned to it nor their heirs or successors Barons Lords or Peers of the Realm unless they hold by Barony no although they sit once or twice in Parliaments by vertue of them or interpolatis vicibus but not continue as the Abbots of Leicester did for then they could not allege or plead their not holding Lands of the King in Barony or any other tenure binding them to sit and serve in Parliament
in barr of the Writs of Summons directed to them because those writs themselves did ennoble and make them their posterity successors Peers of Parliament though they held no Lands by Barony 8ly it is undeniable by sundry presidents that the Kings general writs of Summons create none Lords or Peers of Parliament for life or Inheritance if they hold not by Barony which I shall evidence by these presidents in point To the Parliament of 49 H. 3. there were no less than 64 Abbots 36 Priors the Master of the Temple and 5. Deans of Cathedral Churches namely of York Exeter Salisbury Lincoln Bath and Wells summoned by general writs as the Bishops Earls Barons and other Nobles were yet this did not make themselves nor their Successors Barons or Peers of Parliament for neither of these Deans nor their successors were ever afterwards summoned to Parliament as they would and must have been had this writ made them or their successors Barons and Lords nor any of the Abbots or Priors but such only who held by Barony who were constantly summoned but those who then held not by Barony or Militare servitium if casually summoned to one Parliament were yet upon their complaints thereof omitted and discharged in the next as the Writs of Summons themselves attest and Mr. Selden manifests out of them Therefore the Writs did neither create them Barons for life much less their successors after them for then they should still have of right been summoned to succeeding Parliaments and ought not to have been discharged In the 18 of Ed. 2. A Writ of Summons was sent by the King Magistro Gilberto de Middleton Archidiacono Northampton Officiali Curiae Cantuariensis Magistro Roberto de Sancto Albano Decano de Arcubus London But no writ was ever directed to them afterwards but in this one Parliament only therefore it made them not Lords and Barons for life inheritance or succession The like is evident by the forecited presidents of the Abbots of St. James Leicester and other Priors So the Gardians of the Spiritualties of Bishops during the vacancy and their Vicars Generals during their absence beyond the Seas have been frequently summoned to Parliaments by writs But being summoned only as substitutes or in the right of the Bishops or Bishopricks it made them no Barons or Peers neither were they ever esteemed such heretofore or at this day as Mr. Selden informs us And as it was thus amongst Abbots Priors Deans and other Clergy-men that these writs made them not Barons for life nor yet in succession so by the selfsame Law and Reason they made no Laicks who held not by Barony such for life or inheritance Whence we find many such in the summons to Parliament of King Henry 3. Ed. 1 2 3. R. 2. H. 4 5 6. who were summoned once twice or thrice but never afterwards nor any of their name or posterity of which no other solid reason can be given but that these general writs of summons made them neither Barons for life nor inheritance no more than they did Abbots Priors or Clergymen For example I find Edmond Barstaff Robert de Crendon H. Huse Ader de Estlye Serton de Hansladorn and sundry others summoned by Writ to Parliament in 33 E. 1. Peter Corbet Andrew de Hamloe Henry Tregor Maurice de Buen Roger Banuent and some others in 13 E. 2. Simon Ward Henry Dandle William Blunt in 4 E. 3. Roger de Claudes Ralph de Bevil William de Kineston in 14 E. 3. Ralph Bulmer Thomas Bugworth in 22 E. 3. William de Ridehal in 27 E. 3. Robert de Colvil John de Kirton John de Wodhurst John Northwood John de Strivelin in the Parliament summons of 37. and one of them again of 38 E. 3. Henry Quarts in 6 H. 4. Henry Cuart in 7 H. 4. William Cheyney Chief Justice in 4. 6 H. 6. But neither of their persons nor any of their posterity were ever after summoned that I find to any other Parliaments as no doubt they would have been had those their writs of summons made them Lords and Barons In the Clause Roll of 5 E. 3. m. 12. dorso the King sent writs into Ireland to William de Burgh Earl of Ulster James de Botâ—ler Earl of Ormond William de Bremigham Knight and Walter de Burgh strictly enjoyning them with all speed to come over into England Nobiscum tractaturi vestrumque Consilium impensuri concerning his intended Voyage in person into Ireland and setting the peace and affairs therof and I read in the reign of King Henry 3. Edward the 1. 3. and other of our Kings that the King of Scots and his Nobles were oft summoned by Writs to our English Parliaments concerning the affairs of Scotland yet these writs made none of them Peers and Barons of our English Parliaments From all which I may safely conclude Sir Edward Cooks and others Opinions to be no Law but a clear mistake that a general writ of Summons doth or can create any who hold not by Barony Peers or Barons for life much less in fee or fee-tayl Therefore such may be afterwards elected Knights or Burgesses of Parliament and be Members of the Commons house and refuse to sit or serve in the Lords house upon summons without contempt or fine but no Baron or Peer of the Realm may be thus chosen or neglect his service in the Lords house Finally Mr. Cambden in his Britannia p. 120 122. Apologia p 11. and Mr. J. Selden in his Titles of Honour part 2. chap. 5. Sect. 31. p. 708. to 718. assert That as some Spiritual Barons who were conceived to be Barons by writ as well as by tenure though sometimes summoned to Parliament by writ were wholly omitted at length as not having of right Voice and Place with the rest because they held not by Barony So sundry of the Lesser Barons and Tenants in Capite holding only of the King as Vavasors by Knights service and not by an intire Barony were likewise excluded the Parliament and not summoned thereunto by King John Henry the 3. Edw. the 1. being not great and honourary Barons nor having estates sufficient to support that dignity and that as Mr. Selden conceites by some Law made not long before the Great Charter of King Iohn procured by MAJORES BARONES who foreseeing that their power and dignity might suffer much diminution if the new tenants in chief or Patentees of Escheated Baronies and the rest that were decayed should have equality with them and be indifferently Barons of the Kingdom every way as they were procured a Law in some of the Parliaments that preceded the Great Charter of King John by which themselves only should hereafter be properly stiled summoned as BARONS and the rest only Tenants in chief or Knights which Titles shold be given them as distinct names from Barons which could not but much lesen the dignity and honor of the rest
assembled a Council of the Nobles of his Realm at whose inteaty he granted him Christian burial but for this his Treason they confiscated all his Lands great and small to the King who by their consent granted them all to the Abbey of Malmsbury by his Charter wherein he recites Elfreds Treason death and the judgement given against him by the Nobles adding Sciant Sapientes regionis nostrae non has praefatas terras me in iuste rapuisse rapinamque Deo dedicasse sed sic eas accepi quemadmodum judicaverunt omnes Optimates regni Anglorum et sic adjudicata est mihi tota possessio ejus in Magnis et Modicis Here we have a direct judgement given against Elfred after his death by all the Nobles of the Realm assembled in a Parliamentary Council for Treason against the King for which they adjudged he should forfeit all his Lands to the King whose seisure of them by this legal judgement was no rapine but a just and legal perquisite which he in gratitude dedicated unto God Anno 985. as some or 986. as others relate King Ethelred banished Alfric Duke of Mercia out of the Realm the cause and manner thereof not expressed by our Historians is thus recited in King Ethelreds Charter to the Abbot of Abingdon in the Leiger book of Abingdon f. 91. that Alfric had forcibly ravished and taken away Willemetrant and Syrene from a widdow named Eadfeild for which he was banished after which being recalled and made one of the Kings Admirals against the Danes Anno 992· he played the Traytor and revolted to the Danes as our Historians record for which Treason as that Charter recites quia cum Ducatu suo contra Regem Ethelredum reus exstitit omnes possessiones ejus Regis ditioni subactae sunt and that by the Lords judgement given in a COUNCIL at CIRENCESTER stiled Synodale Concilium ad quod omnes Optimates mei simul in unum convenerint et eundem Aâ—fricun Majestatis reum de hâ—c patria profugum expuâ—erunt by whose Judgement as he seised his Dukedom and Lands there adjudged to be forfeited for his Treason it is likewise probable he caused the Eyes of Algarus son of this Traytor Alfric to be put out Anâ—o 993. when this Council at Cirencester was held as I conjecture In a great Parliamentary Council held at Oxford Anno 1015. King Ethelred caused some Nobles of the Danish race whereof Sygeforth and Morcar were chief to be suddenly and secreâ—ly slain and put to death as being noted and accused of Treason and Perfidiousness towards the King who thereupon seised upon their Earldoms Lands and Goods King Cnute Anno 1017. by his precepts assembled all the Bishops Dukes Princes and Nobles of the English Nation in a Great Parliamentary Council at London where they all swore allegeance and homage to Cnute as their King totally rejected abjured Edmond Ironsides Sons and Brothers right heirs to the Crown against their former Oaths of Allegiance to them and by wicked advice adâ—udged Prince Edwin to be banished the Realm and Edmond Ironsides Sons to be sent beyond the seas to be slain by the Barbarians for which by divine retaliation â—he chiefest of them within one year after were slain or banished the Realm by King Cnute whom they endeavoured to ingratiate and secure by this their unjust sentence The Chronicle of Bromton Caxton in his Chronicle and Mr. Selden record this memorable proceeding in an Appeal of Treason against Earl Godwin in a Parliamentary Council held about the year 1043. Godwin Earl of Kent being enforced to fly into Denmark to preserve his life for the murder of Prince Alfred Brother to King Edward the Confessor hearing of Edwards piety and mercy resolved to return into England humbly to implore his mercy and grace that he might regain his lands then confiscated for it having provided all things for his journy he put to Sea arived in England and posted to London where the King then held a Parliamentary Council wiâ—h all his Nobles Comes Godwinus usque Londonias ubi Rex et omnes regni Magnates ad Parliamentum tunc fuerant properavit rogans ibi et petens amicos consanguineos suos qui post Regem majores terrae fuerunt ut gratiam et amicitiam à Rege sibi perquirere studerent Qui super hoc consilio inter eos deliberato ipsum coram Rege pro gratâ—a obtinenda secum duxerunt Sed statim cum Rex eum intuitus esset De proditione et morte Alfredi fratris sui ipsum appellavit in haec verba Proditor Godwine ego te appello de morte Alfredi fratris mei quem proditionaliter occidisti Cui Godwinus se excusando respondit Domine mi Rex salva reverentia et gratia vestra pace dominatione fratrem vestrum unnquam prodidi veloccidi unde super hoc pono me in consideratione Curiae vestrae Tunc dâ—xit Rex Karissimi Domini Comites et Barones terrae qui estâ—s homines meâ— liget modo hic congregaâ—â— appelâ—um meum responsumque Godwini audistiâ— Volo quod inter nos in ista appellatione rectum judiciam decernatis et debitam justitiam faciatis Comitibus vero et Baronibus super hoc ad in vicem tractantibus quidâ—m inter eos de justo judicio faciendo diversimodo sentiebant Alii enim aâ—cebant Quod nunquam per homagium servitium seu fidelitatem Godwinus Regi exstitit alligatus et ideo Proditor suus non fuit quod ipsum etiam manibus fuis non occiderat Alii vero dixerunt Quod Comes nec Baro nec aliquis Regi subditus bellum contra Regem in appellatione sua-de Lege potest vadiare sed in toto ponere in misericordia suâ— et emendas sibi ofâ—erâ—e competentes Tunc Leofricus Consul Cestriae probus homo quoad Deum seculum dixit Comes Godwinus post Regem homo melioris parentelae totius Angliae et dedicere non potest quin per consilium suum Alfredus frater Regis interemptus fuit unde per me considero qúod ipsemet filius suus et nos omnes 12. Comites qui amici et consanguinei sui sumuâ— coram Rege humiliter procedamus onerati cum tanto auro et argento quantum inter brachia sua quilibet nostrum poterit bajulare illud sibi pro suâ— transgresin afferendo et suppliciter deprecando ut ipse malevolentiam suam rancorem et iram Comiâ—i con onet et acceâ— t is homagio suo fidelitate terras suas sibi integre restituat eâ— retradat Illi auâ—em omnes sub ista forma thesauro se onerantes et ad Regem accedâ—ntes seriem modum considerationis eorum sibi demonstrâ—bant Quorum considerationi Rex contradâ—cere nolens quicquid judicaverant per omnia ratificavit Concordia igitur sub isto modo inter eos facta Comes statim reobtinuit integreterras
omnes qui contra Regem cum Comite Simoni ' steterunt exhaeredicabantur quoram terras Rex suis sideli bus tradidit sineâ— mora pensatis meritis singulorum The Execution of this Sentence appears in the Patent Roll of 50 H. 3. m. 10. Schedula Where the Lands and Menors of Simon de Montfort and other Rebels adhering to him against the King are confiscated to the King and granted by him to sundry others there mentioned as the Lands of the Barons adhering to King Lewis against King John their native Soveraign were in like manner forfeited to and granted by him Claus 17 Johan Regis dors 7 10 11. By these two last Parliamentary presidents and proceedings against the Londoners Simon Montfort the Baronâ— and aâ— other his Confederates whether Peers or Commoners in case of Treason and Rebellion against the King to the forfeiting of their antient Customs and Liberties imprisoning and fining of their persons confiscation of their goods disinheriting them of their Lands and Freeholds by judgment and â—entence of the King and Lords it is undeniable that the King and Lords have an antient undoubted right to judge and censure both Peers and Commoners too in Parliament in cases of Treason and other misdemeanours there properly triable In the year 1266. King Henry the 3d. REGIONIS NOBILES assembling together at Westminster at Christmas to treat about setling the Peace of the realm after the accustomed manner there issued out an Edict against Earl Ferrers who was perpetually depriâ—ed of his Earldom according to the form of his Obligation for his Treason and rebellion against the King and Edward the Kings son was put in possession of two Counties or Earldoms to wit Derby and Leicester The same year after divers skirmishes between the disinherited Baroâ—s and persons and the Kings forces to settle a firm peace upon the Legates motion there was another Parliament held at Kenelworth wherein by the accord and consent of the King and Lords the persons disinherited whose Lands the King had confiscated for their Treason and Rebellion in the two former Parliaments were notwithstanding admitted upon their submission to the King for reasonable fines and compositions reduced to a certainty by Bishops and other Lords Commissioners both to their Pardons Liberties Charters and Inheritanceâ— 3. only excâ—pted their fines not exceeding 3. years value nor to be under one without any imprisonment or loss of Memberâ— as you may read at large in the accord between them and the King at Kenelworth printed in the Statutes at large See Par. 50 H. 3. dors 9. the Patent Charter and Claus Roâ—s of 50 51 52 53. of Henry the 3. and Claus 4 E. 1. m. 15. dâ—rso In the Parliament of 21 E. 1. John Archbishop of Yorke was impleaded and complained against for excommunicating the Bishop of Durham being juxta latus Regis per ipsius praecepâ—um against the dignity of the King and for imprisoning William of Willicon and John Rowman two of the Bishops servants in the Castle of Durham being excommunicated by him in his Ecclesiastical Court for the Wardship of certain Lands to which the Archbishop pretendâ—d a Right the Custody of which lands being a Temporal matter belonged not to Ecclesiastical cognisance The Archbishop protesâ—ing that although he ought not to answer for this matter in the Court of our Lord the King yet he was willing to answer And thereupon allegeth that the Bishop of Durham was his Subject and Suffragan and shews the whole matter and manner of the proceedings against him and his Servants in his Court and justifies the same To which Richard de Breelwell who prosecuted for the King answered that the Bishop of Durham was to be considered in a twofold estate one as a Bishop the often as an Earl in respect of his Temporalties and Tenements In which lâ—ter respect he was not subject to his Archiepiscopal Jurisdiction to which the Archbishop replied After much and â—ong debate it was adjudged and resolved by the Lords in Parliament that for this offence the Archbishop should be committed to prison and likewise agreed that in like cases it should ever be so this his Excommunication of them in his Ecclesiastical Court for a temporal matter being an high contempt against the King to the disinherison of his Crown and dignity Moreover he was adjudged to make his submission to the King and to pay a fine of 4000 maerks to the King for this offence The Archbishop hereupon makes his submission aend after much mediation to the King by his friends his imprisonment was remitted but the King would not abate one penny of his sine for the due payment whereof he was enforced presently to enter into a Recognisance and so dismissed The Record is very long worthy perusal but this is the summary of it Anno 1283. after the feast of St. Michael in PARLIAMENTO tento Salopiae David quondam frater Lewlini Principis Walliae per Potentiores Angliae judicatus judicialiter condemnatus ad caudas equorum per municipium Salopiae tractus et suspensus est visceribusque combustis corpus capite truncatum in quatuor partes est divisum quibus in Civitatibus Angliae Nobilioribus suspensis caput Londoniis super palum fixum est ad terrorem consimilium proditorum King Edward the 1. Ann. 1297. the 14. of his reign holding a Parliament at St. Edmonds where there was granted him an 8. part of the goods of Cities and Boroughs and a 12. part of the rest of the people the Clergy by reason of the Constitution of Pope Boniface made that year prohibiting under pain of Excommunication that no Taxes nor exactionâ— should by any means be exacted from the Clergy by secular Princes or payd by them of the goods of the Church denyed the King a Subsidy which he demanded of them to maintain his wars Whereupon the King that they might deliberate of a better answer deferred the business to another Parliament to be held at London the next day after St. Hillary An. 1298. The Parliament then assembling the Clergy therein persisted in their denyal of a Subsidy upon the foresaid ground The King thereupon by his Nobles advice excluded them from his protection and prohibited any Lawyers to plead for them in the Exchequer or before any other Regular Judge as being unworthy of his peace and seised all the goods movables and immovables of Clergy men found in Lay fees and confiscated them To redeem which Protection many of the Clergy by themselves and many by Mediators afterwards gave the King a fift part of their goods The King finding the Archbishop more rigid than the rest seised all his lands and commanded all his debts found in the Rolls of the Exchequer to be speedily levied on his goods For the same Archbishop by the assent of the Clergy had procured from the Pope an Inhibition Ne quis Clericorum Regi respiceret de bonis Ecclesiae The
iâ— regno Quid mihi suaderet vos prodere vel certe necare qui nihil lucri reciperem de vestra morte Nunquid hostes â—estri me ditiorem facerent in terra sua quam effectus sum in terra vestra et in natali solo Aut si regnum affectarem credendu â—ne est post vestram inteâ—fectinnem quod absit Dominos hujus Regni aquâ—nimiter ferre me posse Domini mei et patriae proâ—â—torem Deliâ—ere si placet fidem â—arâ—â—alia â—lerenâ—bus quia paratus sum more militis contra quemcunque mundi mihi in hac causa adversantem pugnare et meam innocentiam defendere et purgare Upon which and other words the King believed the Duke and received his excuses and committed the Frier at his request to the Custodie of the Lord John Holland usque ad diem quo causam diceret horum quae praeposuerat contra eum In ipsa nocte quae processit diem suae responsioniâ— the Frier was strangled and pressed to death by the said John and another Knight and the next day his dead corps was drawn through the street like a Traytor to take away the suspition of his unjust death Ipsi judices ipsi ministri ipsi tortores extiterunt Et hic fructus Parliamenti praesentis praeter hoc quod dominus Willielmus la Zouche quamvis gravissima detineretur aegritudine accersitus erat ad Parliamentum ad standium judicio Regis et Dominorum quia idem â—rater eum velut inventorem inceptorem et incentorem dixerat omnium quae scripserat extitisse Qui cum venisset lectica delatus quia propter guttam equitare non poterat compulsus est discinctus et discooperto capite ad haec omnia sibi objecta more latronum vel proditorum respondere Qui viriliter negavit objecta Sacramento firmans haec nunquam audisse vel hujusmodi cogitasse et ita demum absolutus est et domum redire permissus In this Parliament holden at Salisbury 7 R. 2. rot Parl. n. 11. to 16. John Cavendish a Fishmonger of London made his complaint first to the Commons and after to the Lords against Sir Michael de la Poole Chancellor of England demanding the Peace against him which THE LORDS granted after which he accused him for taking Bribes and delayes and injustice in a sute of his depending before him whereof he cleared himself by his own Oath and the Oaths of other witnesses sworn and examined before THE LORDS Whereupon the Lords being troubled with other weighty matters referred the Chancellors reparation for the Scandal to the ordering of the Judges The same Sir Michael de la Pole Earl of Suffolk and Chancellor of England in the Parliament of 10 R. 2. rot Parliamenti n. 6. to 18. was accused in full Parliament before THE KING BISHOPS LORDS by the Commons who exhibited sundry Articles against him recorded at large by Henry de Knyghton agreeing with the Parliament Roll. The effect of them was this That whiles he was Chancellor against his Oath to procure the profit of the King he had purchased lands and tenements of the King of great value at under rates and exchanged uncertainâ— customs and rents for good lands in deceipt of the King and for spending the Aids granted to the King the last Parliament to guard the Seas in another manner than they were granted whereby the Seas were not guarded and much mischief hapned to the Realm c. The Lords Commons refused to act any thing till the King came in person to Parliament and the Chancellor removed upon these Articles The Chancellor demanded of the LORDS 1. Whether he should answer these Articles without the Kings presence for things done whiles he was Chancellor for that he being Chancellor of England for the time represented the Kings person in Parliament during his absence thence Secondly Whether his Brother in Law Sir Richard Scroope might not answer for him whom he had by advice of his Counsel appointed to do it To which the LORDS answered and resolved It was honest and fit for him to answer for himself Whereupon he making protestation that he might adde to or diminish from his answer and that which might be honourable to him by advice of his Counsel the Lords granting thereunto He thereupon put in an answer and replication to all the Articles to which his Counsel added some things in making his defence The Commons replyed to his answer to w ch he by way of rejoyndâ—r replied and answered to them his defence sâ—eming very solid Yet the Commons upon his replication before judgement pressed the King then being in Parliament and she Lords that he might be committed for the grievous offences charged against him Whereupon he was arrested by the Kings command and committed to the custody of the Constable of England and after let to mainprise Ar last THE LORDS in full Parliament GAVE JUDGEMENT AGAINST HIM That for breach of his Oath all the Manors and lands which he had of the Kings gift contained in the Articles should be seised into the Kings hands to have them to him and his heirs for ever together with their mean profits and issues saving to him the name and Title of a Knight and Earl together with an annuity of 20 l. yearly granted him out of the profits of the County of Suffolk The like judgement was given against him for the lands exchanged by the King for the customs of Hull and the Priory of St. Anthony Walsingham addes That he was deprived likewise of his Chancellorship and adjudged worthy of death yet the Lords would not put him to death but sent him prisoner to Windsore Castle Rex autem non multo post annullavit quicquid in Parliamento statutum fuerat contra ipsum In the Parliament of 11 R. 2. rot Parl. â— 6 7. Thomas Duke of Gloucester kneeling before the King said that he understood the King was informed he went about to depose him and to make himself King Wherefore he offered to put himself upon his tryal in that behalf as the Lords of the Parliament would award Whereupon the King said in open Parliament that he thought the said Duke was nothing faulty and therefore held him excused After which all THE LORDS as well spiritual as temporal being in the Parliament claimed their liberties and franchises namely That all weightâ— matters in the same Parliament which should be after moved touching THE PEERS OF THE LAND ought to be discussed JUDGED AND DETERMINED BY THE M by the course of Parliament and not by the Civil Law nor yet by the Common Law of the Land used in other Couâ—ts of the Realm The which claim and liberties the King most willingly allowed and granted thereto in full Parliament After which Thomas Earl of Glocester Henry Earl of Derby Richard Earl of Arundel Thomas Earl of Warwick and Thomas Earl of Marshal Lords Appellants impeached Alexandâ—r Archbishop of York Robert de Vere
dominum nostrum jam elapso irae tempore haec innotuisse Praeterea si aliquid â—iolentiae ipsi Henrico intuleritis ecce Episcopus Londinonsis qui spiritualem et alii amici ejus militares qui vindictam exercebunt materialem et sic in magna parte cessavit Extunc igitur procurante efficaciter Comite Richardo et Episcopâ— memorato mitius actum est cum eo Dictum enim est domino Regi secretius quod mirum est quod aliquis ei curat servire cum eis post ministerium etiam mortem nititur inferre Promissa igitur quadam pecuniae summa a mortis discrimine recessit liberatus After which he paying to the King 2000 marks for a fine and being reconciled to the King ad Curiam est reversus immemor laqueorum quos evaserat Here we have 1. A corrupt Judge accused of bribery by others and by the King of rebellion and sedition and that before the Lords in Parliament 2ly A Proclamation for all that were grieved to complain against him 3ly A rash unjust sentence given against him by the King himself for any man that would to kill him with impunity 4ly the Lords opposition and contradiction of this sentence and its execution as unjust and dangerous 5ly A remission of his sentence by the Lords mediation and a fine imposed and paid to the King for his offences In the 49 year of King Henry the 3. at the Parliament held at Winchester divers Commoners as well as Lords were attainted and condemned of High Treason for levying war against the King their persons imprisoned their lands and goods confiscated and the liberties of the City of London forfeited by judgement of the Lords Anno â—290 King Edward the 1. held a Parliament at London at which time Rex auditis multorum queremoniâ—â— fere Justiciarios omnes de falsitate deprehensos a suo Officio deposuit puniens eos juxta demerita grâ—vi mâ—a by the advice of his Lords in Parliament It appears by the Clause Roll of 5 E. 2. m. 22. dorso and Rot. Finium 5 E. 2. m. 11. in Schedula that in a Parliament held at Stamford 3 E. 2. the Commons of England exhibited sundry Articles of complaint to the King Amongst others that they were not used as they ought to be by THE GREAT CHARTER in taking Prises and Purveyances without mony c. That the King by his Ministers took ijs of every Tun of wine and ijs a cloth from Merchants aliens and 3 d. pur aver de poys to the damage of his people and hinderance of trade which new Impositions being against Law the King promised to redress for the future and to content himself with the Prises and Customs antiently due They likewise complained of the abuses oppressions and extravagances of Purveyors Constables of Castles and Escheators and abuses of Protections and Pardons granted by the King to Murderers and other Malefactors to their incouragement whereto redress was promised In their 6. Article they complained That the Knights Citizens and Burgesses of Parliament came up with divers Petitions for matters not remediable at the Common Law and could not finde to whom to deliver them Whereunto was answered The King willed that in his Parliaments for time to come certain persons should be appointed to receive Petitions and that they should be delivered TO HIS COUNCIL as was used in the time of his Father and examined and answered by him with their advice Whence we find in all our Parliament Rolls ever since in the beginning of every Parliament certain persons nominated by the King and Lords being Members or Assistants of the Lords house to receive the several Petitions of England Ireland Scotland Gascoigne Iersey Gernsey Alderney and other Isles and other persons of the LORDS House appointed to trie examin and answer them in the Kings name and behalf as he by their advice shall think meet and sundry Petitions of Grievances of all kinds presented to them and answered accordingly by the King and Lords in every Parliament as well by the whole house of Commons as by particular Counties Cities Corporations and private Persons a most clear Evidence that the King and Lords are the sole Judges of all criminal and civil causes and Grievances of the Commons in Parliament since they thus constantly petition them for redress and that the Commoners are only Petitioners not Judges as the Parliament roll of 1 H. 4. n. 79. resolves in direct terms Claus 8 E. 2. m. 7. dors The Chaplains of the House of Converts exhibited a Petition in Parliament against Adam de Osgodby the Keeper thereof for putting them out of their lodgings and placing his Clerks therein they being founded by King H. 3. to pray and sing Masses for his and his ancestors Souls and not to lodge the Clerks of the Chancery Upon consideration of the Petition by the Lords and Councel in Parliament it was referred to the Chancellor to examin and determine tanquam principali Custodi omnium Hospitalium et Domorum de eleemosyna Domini Regis fundatorum ut ipfe inde faceret quod de jure esset faciendum He sends a Commission to the House to inquire the truth of the complaint and finds the Complaint unjust and that the Keeper of the House was falsly charged and that especially by William de Okelines being one of the Chaplins Whereupon consideratum est per Cancellarium quod Willielmus idem nihil haberet de contentis in petitione sua praedicta sed quod committeretur ad custodiam suam pro falsâ— querela sua castigandus juxta discretionem dicti custodis Pasch 8 E. 2. Norfolk The Archdeacon of Norfolk was accused for citing the Countess of Warren being the Kings Neece and divorced from her husband to the damage of the King 2000 l. and it was adjudged by the Lords in Parliament against the Archdeacon quod nec citatio nec summonitio fieri debet versus eot qui sunt de sanguine Regis quia illis Major reverentia debita est and therefore he was fined About the year 1316. when the Northumberland Soldiers like some in this age raised against the Scots de tyronâ—bus facti sunt Tyranni de defensoribus destructores de propugnatoribus proditores c. one John Tanner said openly that he was heir of England Therefore at Northampton before the King and Lords he was proved false and hanged and drawn See more of him in Fabians Chronicle part 7. Anno 1314. p. 169. who relates that he reported he was son to King Edward the 1. but was stoln out of his cradle by a false nurse and Edward who was anothers son laid in the cradle for him and that he had a Fiend in form of a Câ—t whom he served 3. years which assured him he should be King of England In the Parliament of 18. E. 1. the Prior of Trinity in London and Bago de Clare were attached brought into the Parliament there
every temporal Lord being in full Parliament examined touching the answer of the said Sir William and the matters and evidences which they had examined said severally that the said William had done his message well and legally and that in the person of the said William there was no fault nor evil touching the said message nor any thing that he did to the person of the said Duke Whereupon Walter Clapton Chief Justice of the Kings Bench by command of the king adjudged and declared that the said William should be fully excused and acquitted for ever in time to come touching this matter 3ly The last day of this Parliament it was agreed by the King and Lords that all the remembrances called Raggemans or Blantâ—es Charters lately sealed in the City of London and divers Counties Cities and Burroughs of England should be sent to the City of London and from every County City and Burrough from whence they came and Writs sent to every of them rehearsing That the king held all the resiants and Inhabitants in them for his good and loyal Subjects and that no confession by them made comprised in the said remembrances are nor shall be in derogation of the estate of any such person and that the same remembrances shall be burnt and destroyed in the most open place of the said Counties Cities and Burroughs and if any thing remain of record in any Court or place the king wills that it shall be cancelled and totally adnulled revoked and repealed and held for no record and of no force nor value for time to come 4ly The 19th of November in the said Parliament Placita Coronae coram Domino Rege in Parliamento suo c. Anno regni Regis Henrici quarti post Conquestum primo n. 17. The Commons prayed she King that rhe pursute arrest and judgements made against Sir William le Scropâ— knight Henry Green knight and John Bassy knight might be affirmed and held good Whereupon Sir Richard Scroop humbly prayed the King that nothing which should be done in this Parliament might turn to his or his Childrens dis-inherison Of which Sir Richard it was demanded whether the said pursute arrest and judgements were good or not who answered that he feared not to say and must confesse that when they were made thâ—y were good and profitable for the King and Realm and that his Son was one of them for which he was very sorrowfull Whereupon the king rehearsed that he claimed the Realm and Crown of England with all their members and appurietenances as heir of the bloud by the right line of king Henry the 3d. and although through the right which God had sent him by the aid of his Parents and friends he recovered the said Realm which was at the point to be undone by default of government and defesance of the Laws and customs of the Realm yet it was not his will that any should think that by way of Conquest he would disinherit any man of his heritage franchise or other right which he ought to have nor out any man of that which he had or should have by the good Laws or Customs of the Realm except these who had been against the good purpose and common profit of the Realm of which only the King held the said Sir William Henry and John for such and guilty of all the evil which had come upon the Realm and therefore he would have and hold all the Lands and Tenements they had within the Realm of England or elsewhere by conquest Whereupon fuist demande de touts les Seigniors temporellez lour advys de les pursuite arreste juggem 〈◊〉 suiâ—diâ—z Les queux Seigniors touz de â—ne accorde disorent que mesmes les pursuite arreste juggement quinâ—que fuist fait come defuist dit uist bons et les affirmente Piur bons et profitables 5ly In the case of John Hall 1 H. 4. Placita Coronae n. 11 to 17. who being in custody of the Marshal of Englana was brought by him before the Lords in Parliament and there charged before them by Walter Clapton Lord Chief Justice by the King command with having a hand in the murther of the Duke of Glocester who was smothered to death with a Featherbed at Calues by king Richard the seconds command the whole transaction whereof he confessed at large and put in writing before James Billingford Clerk of the Crown which was read before the Lords upon reading thereof the King and all the temporal Lords in Parliament resolved that the said John Hall by his own confession deserved to have as hard a death as they could adjudge him to because the Duke of Glocester was so high a Person and thereupon toutes les Seigneiors temporelz per assent du Roy adjuggerent all the temporal Lords by assent of the King ADJVDGED that the said Jo. Hall should be drawn from Tower hill unto the Gallows at Tiburn and there bowelled and his bowels laid before him and after he should be hanged beheaded and quartered and his head sent to Calice where the murther was committed and his quarters sent to other places where the king should please and thereupon command was given to the Marshal of England to make execution accordingly and it was so done the same day Lo here the Lords in Parliament gave judgement against a Commoner in case of a murther done at Calice and so not â—riable in the Kings Bench but in Parliament and passe a Judgement of High Treason on him for murthering of a great Peer only In the Parliament of 2 H. 4. rot Parl. n. 23 24. The Commons shewed to the King that William Bagot had been impeached of many horrible deeds and misprisions the which if they had been true the Commons supposed the the King aad ths Lords would have had good notice thereof for that they had made many examinations thereof whiles the said William was in distress And therefore the said Commons prayed the King that the said Sir William being in Flanders and no offence found in his person upon the slanders in his impeachment aforesaid that he would be pleased to restore him to his lands To which prayer was answered in the Kings behalf that although the said Sir William upon the said impeachment made the last Parliament was put to his answer before the King and the Lords and there pleaded a general Charter of pardon against which Charter it seemed to all the Lords then present that the said Sir William ought not to be impeached nor put to answer by the King on his part for that the said Sir William was not attainted of any impeachment suggested against him and that the King had done him justice in this behalf therefore he would in the same manner doe him justice in the residue at the Commons request A most full proof of the Kings and Lords judicial power in Parliaments even in case of a Commoner The same Parliament 2. H. 4. num 29. William
diu consultati sed inconsulti Equidem meum est posse et velle conferre gratiam cui voluero miserebor Nec propter vos amplius quam pro cane Quis in gratiam meam se submisit repulsam passus est Veruntamen vestrum judicium in scriptura redigatur et pro lege amodo teneatur Proinde dictus miles ad carcerem ducebatur ne impunitas armareâ— audaciam et rigor caeteris timorem incuteret contemnendi Et post paucos dies elaborantibus multis nobilioâ—ibus regni et ostendentibus se 30 suis paribus cinctis gladiis corpus pro corpore et bona pro bonis una in solidum quoquo die Rex eum vocaverit nec adesset liberatus est et per regem cunctis facultatibus suis restitutus So this Historian which compared with the Record infallibly proves that this resolution was given by the Earls Barons Lords and Judges advice who were the only aliorum de Concilio as assistants to the Lords then in all matters of Law as now they are not the Commons of which there is no mention in the records or this Historian that they were parties to it And this is likewise evident by the case of Margery the Wife of Thomas Weyland an abjured Judge in the Parliament of 19 E. 1. Cooks 1. Institutes f. 133. n. Where the Barons of the Exchequer and Justices of the Kings Courts were called to advise and assist the King and his Council of Lords in Parliament in a difficulty of Law therein to be resolved by their advice And therfore it follows that the LORDS ONLY IN THAT AGE were the Judges even of Commoners cases Thirdly Admit the Commons were included yet it proves only a right of advising and delivering their opinions with the Lords when required by the King not of judging or pronouncing sentence Fourthly Sir Edward Cook citing this president to prove That both Houses together have power of judicature must grant that even in 33 E. 1. there were two distinct Houses of Parliament who upon special occasions as now at conferences c. met and advised together and therefore the division of the Houses was before Edward the third his reign and very probable as antient as the summoning of Knights Citizens and Burgesses to the Parliament which some make as antient as King Henry the first or King Henry the 2. others not before King Henry the third in the 49 year his reign Father to King Edward the first So as this president makes quite against the Levellers and Lilburnians designs and opinions The 3 and 4. Presidents are those of Hugh Audley his Wife Claus 12 E. 2. m. 5. of Gaverston and the two Spencers Exiles 15 E. 2. forecited wherein the Commons gave their assents to the attainders and exiles of Gaverston and the Spencers and to the reversal of them But this I have already proved to be only by way of Bills not judicature by the legislative not judicial power of Parliament and that they were judicially condemned only by the Lords therefore these are nothing to the purpose and against the Objectors The 5. and 6. are the depositions of King Ed. the 2. and Richard the 2. for their mis-government wherin the Commons had a joynt vote and concurrence with the Lords which I shall hereafter answer in the supplement p. 429. to 460. The seventh President is that of Eliz. Burgh Widow in the Parliament of 1 E. 3. rot Parl. n. 11. who complained by Petition to the King that in the reign of King Edward the 2. she was by his Writ commanded to come unto him to Yorke and there by Hugh Spencer the younger and Robert Baldock and William Cliff his instruments inforced by duresse to enter into an Obligation to this effect that if she received any who were contrary to the King or maried any man without the Kings consent or if she gave any lands or tenements which she held in fee or in dower to any man living without the Kings license that for any of these she should forfeit all her Lands Tenements Goods and Chattels to the King as appeared by the transcript of the Bond annexed to her Bill whereupon she prayed Grace and remedy against this duresse and acquittance of our Lord the King from this Obligation Hereupon a Writ was sent to the Clerk of the Privy Seal in whose custody the Obligation was to bring it without delay Coram Concilio nostro in Parliamento ad faciendum inde ulteriut quod per idem Concilium nostrum contige it ordinari which being brought and delivered accordingly the 5 of March and deliberately read in full Parliament and agreeing with the transcript annexed to her Petition in all things Pur ceo que avys est as Archievesques Evesques Counts BARONS auires Grandes et a TOVTELA COMMONALTIE de la terre que lo dit escrit est fait contre ley de la terre enconter tout manere de reason si fuist le dit escrit PER AGARD DEL PARLIAMENT dampne illeoques livera ala dit Elizabeth I answer 1. That this judgement was given only in a civil case touching an Obligation made by duress not in a criminal 2ly That this Petition was directed only to the King and his Council not to the Commons in Parliament and the businesse heard before them 3ly That this being a Common case there being then many Petitions and complaints that Parliament of bonds of this nature the Commons joyning with the King and Lords in this judgement of Parliament in her case was only by way of Bill not in an ordinary way of judgement they exhibiting passing a Bill for that purpose as well as a Petition as is clear by the words of the Roll and by the printed Statute of 1 E. 3. c. 3. That fines sales and gifts of land and recognizances of debt made by force and duress to this Sir Hugh Spencer Robert Baldocke c. or to any of them be defeated And Parl. 2. ch 15. Whereas many of the Realm in the time of the Kings Father that now is by means of his false and evil Counsellors have been excited by divers to bind themselves to come to the K. with force and arms whensoever they should be sent for upon pain of life and limb and to forfeit all that ever they might forfeit by vertue of which writings divers of his land have been often destroyed The King considering that such writings were made to the Kings dishonour sithence that every man is bound to doe to the King as to his Liege Lord all that pertaineth to him without any manner of writing will that from henceforth no such writing be made And that such as be made by the sight of the Chancellor and Treasurer shall be shewed to the King and the K. shall cause all such as be made against right reason to be cancelled So that this main president meerly falls to the ground being
LORDS and GREAT MEN as well Ecclesiastical as secular were present inquiry was made whether any were unjustly spoiled and deprived of their rights Whereupon it was shewed that Arch-Bishop Wulfred was unjustly deprived of his just Lordship and Jurisdiction near six years space and forced under pain of confiscation of his goods and banishment to convey three hundred Hydes of Land to him upon condition that he should bee restored to his full Archiepiscopal authority which condition was not performed After the Kings death Abbesse Kenedrytha his daughter and heir was summoned to this Council where the Arch-Bishop complained of the injuries done to himself and Christ-Church in Canterbury by her Father requiring reparations for them from the Abbesse if it were just Whereupon ALL THE COUNCIL held it just and DECREED BY AN UNANIMOUS DECREE that all the Lands and things taken away from the Arch-Bishop by her Father should bee restored together with the profits thereof lost for so long a space as also all the Books and Writings by the Abbesse being heir to the King which was accordingly performed by her King Bertulfus Anno 850. Holding a Great Council with the Prelates and Nobles of the whole Realme of Mercia upon the complaint of Siward and the Monks of Croyland of certain injuries maliciously done unto them by their adversaries in violating the Bounds and Priviledges of their Sanctuary to the great prejudice of their Abby Thereupon the King Prelates and Nobles in this Council for redress of this injury prescribed a Perambulation of their Bounds to be made by the Sheriffe of the County and to certifie the same unto them when made which was accordingly made certified to and confirmed by THE KING PRELATES and NOBLES in the Council held by them at Kingsbury in the year 851. as you may read at large in Ingulphus upon the petition of Abbot Siward After the death of King Edgar Anno 975. there being a great difference between the Nobles of the Realme about electing a new King some of them siding with Ethelred others with Edward his two Sons all the Bishops Abbots and NOBLES assembled in a great Parliamentary Council to debate and determine their rights and titles to the Crown Wherein they elected and crowned Edward the elder Brother King In this Council and two or three more succeeding it at Winchester and Calne the married Priests complained TO THE LORDS that they were unjustly expelled out of their Churches by the Monks and their prevailing party during King Edgars Reign to their dishonour and the great injury of the Nation desiring that the Monks might bee ejected and they restored to their Churches they anciently injoyed about which there were great contests and disputes in sundry Councils the King and LORDS inclining to restore them against Arch-Bishop Dunstans and other Monkish Prelates wills About the year 982. There was a Witenagemâ—t or Parliamentary Council held at London to which the DUKES PRINCES and NOBLES resorting from all parts Adelwold Bishop of Winchester complained that one Leofsi who had purchased Lands of him in the Isle of Ely not only refused to pay for them but also disseised him of three other Mannors The cause being opened and pleaded by the Bishop and the Lawyers flocking thither from all parts They ALL ADJUDGED that the Lands and Mannors should bee restored to the Bishop together with all his dammages and that Leofsi for this his rapine should also pay a fine and ransome to the King Queen Edgen in a civil cause and suit in the County Court between her and Goda appealed from that Court to King Ethelred and a Parliamentary Council at London Congregatis Principibus sapientibus Angliae In the time of St. Edward a suit between the Bishops of Winchester and Durham coram Principibus et Episcopis Regni in praesentia Regis ventilata finita est In the tenth year of King William the Conquerour Episcopi Comites et Barones Regni regia potestate ediversis Provincis ad universalem Synodum pro causis audiendis et tractandis convocati sunt as the Leger Book of Westminster records Hence I suppose it was that what we now call a Parliament was sometimes stiled by our ancient Historians in former ages MAGNUM PLACITUM because of the great Pleas and suits therein decided and judged BY THE KING and LORDS King William the first Anno 1071. held a great Council of his PRELATES and NOBLES at Winchester In hoc Conciliâ— dum caeteri trepidi ut pote Regis aegnâ—scentes animum ne suis honoribus privarentur venerandus Vir Wulstanus Wigorniensis Episcopus quamplures possessiones sui Episcopatus ab Aldredo Archiepiscopo duâ— Ã Wigorniensi Ecclesia ad Eboracensem transferretur sua potentia retentas qui eo tunc defuncto in Regiam potestatem devenerant constanter proclamabat JUSTITIAMQUE INDE FIERI tam AB IPSIS QUI CONCILIO PRAEERANT quam a Rege FLAGITABAT At quia Eboracensis Ecclesia non habens Pastorem qui pro ea loqueretur muta erat JUDICATUM EST ut ipsa querela sic remaneret quousque Archiepiscopo ibi constituto qui Ecclesiam defenderet dum esset qui ejus querelae responderet objectes responsis posset ebidenâ—us et Iustius Iudicium fieri sicque tunc a querela ad tempus remansit But Thomas being soon after consecrated Arch-Bishop of York thereupon reverendi Wulstani Wigorniensis Episcopi mota est iterum querela Archiepiscopo jam consecrato Thoma qui pro Eboracensi loqueretur Ecclesia in Concilio in loco qui vocatur Pedreda celebrato coram Rege ac Doroberniae Aâ—chiepiscopo Lanfranco Episcopis Abbatibus Comitibus Primatibus totius Regni Dei gratia adminieulante Terminaâ—um Cunctis siquidem machinationibus non veritate stipatis quâ—bus Thomas ejusque fautores Wigorniensem Ecclesiam deprimere Eboracensi Ecclesiae subjâ—cere aniliamque facere modis omnibus satagebant justo Dei judicio in scriptis evidentissim is detritis penitus annihillatis non solum vir Dei Wulstanus proclamatas expetitas possessiones accepit sed suam Ecclesiam Deo clamante Rege concedente ea libertate liberam suscepit qua primi fundatores ejus sanctus Rex Ethelredus Offa c. ipsam liberaverunt By which History it is apparent that the King and Lords in that age had the sole judicature in civil causes in the Parliaments then held and decided civil Titles and controversies therein between Bishops and spiritual as well as temporal persons In the year-Book of 21 Ed. 3. fol. 60. There is a recital that upon the complaint of the Abbot of St. Edmonds de Bery against the Bishop of Norwich for infringing the liberties of the Abby in the Reign of William the Conquerour in a Parliament held under him most likely in this Council of Pedreda it was ordained per le Râ—y et per Larchebesque de Canterbury et per touts les Auters Ebesques de
was again resolved in another Parliamentary Assembly held that year by King Henry the first the Bishops Abbots Great men and Nobles of the Realme as you read before p. 173. Anno 1109. there sprung up another â—ot contest between Arch-Bishop Anselme and Thomas Elect of York about the oath of subjection and canonical obedience which was again debated and after Anselmes death again debated and finally setled in another Parliamentary Council by the King Bishops Nobles and Barons of the Realme of which at large before p. 174 175 176 177. The same Debate coming again between Ralph Arch-Bishop of Canterbury and Thurstan of York after his returne from Exile Anno 1121. was again concluded omnium Concilio Episcoporum Principum Procerum Regni p. 180. After many years intestine bloody wars between the perjured Usurper King Stephen Mawde and Duke Henry her Son for the Crown of England Anno 1153. apud Walingford in conventu Episcoporum et aliorum Regni Optimatum there was a final accord made between Stephen and Henry touching the inheritance and descent of the Crown that Stephen should adopt and constitute Henry for his son heir and successor to the Crown of England immediately after his death which Stephen should enjoy during his life yet so as that Henry should bee chief Justice and Ruler of the Kingdome under him This accord made between them by the Prelates Earles and Barons of the Realme was ratified by King Stephens Charter and subscribed by all the Bishops Earles and Barons in their Parliamentary Council at Walingford The difference and suit between King Henry the 2d and Roderic King of Conact in Ireland touching his Kingship Royalties Dominions Services Homage Loyalty and Tribute to King Henry were heard decided and a final agreement made between them in a great Parliamentary COUNCIL held at Windeshores Anno 1175. wherein King Henry the 2d and his Son with the Arch-bishops Bishops Earles and Barons of England without any Commons were present who made and subscribed this agreement recorded at large in Houeden where you may peruse it King Henry the 2d Anno 1177. Celebrato generali CONCILIO apud Northampton after the feast of St. Hilary by the advice of his Nobles restored to Robert Earl of Leicester all his Lands on this side and beyond the Sea as hee had them fifteen daies before the Warre except the Castles of Mounsorel and Pasci Hee likewise therein restored to Hugh Earle of Chester all the lands which hee had fifteen daies before the warre and gave to William de Abbine Son of William Earle of Arundel in the County of Southsex And in the same Council Deane Guido resigned into the hand of Richard Arch-Bishop of Canterbury the deanery of Walteham and all his right which hee had in the Church of Walteham quietum clamavit simpliciter absolute similiter fecerunt canonici seculares de Walteham de praebendis suis resignantes eas in manis Archiepiscopi sed Dominus Rex dedit eis inde plenariam recompensationem ad Domini Cantuariensis Archiepiscopi aestimationem Deinde Dominus Rex authoritate Papae Domini instituit in eadem Ecclesia de Walteham canonicos regulares de diversis domibus Angliae sumptos constituit Walterum de Garent canonicum sumptum de Ecclesia de Osencie Abbatem primum super congregationem illam magnis redditibus domibus pulcherrimis dotavit illos And then hee expelled the Nunnes out of the Monastery of Ambresbury for their incontinency and distributed them into other Nunneries there to bee kept more strictly under restraint and gave the Abby of Ambresbury to the Abbesse and house of Frum Everoit to hold it for ever Sanctius King of Navar and Alfonso King of Castile in the year 1177. submitted the differences between them concerning certain Lands Territories Towns and Castles to the determination of King Henry the 2d who thereupon summoned a Parliamentary Council of his Bishops Earles Nobles and Barons to hear and decide it by their advice Wherein the case being propounded debated and opened before them by the Ambassadours and Advocates of both Kings appeared to be this That King Sanctius during the minority of King Alphonsus an Orphant his Nephew Pupil and innocent from any crime unjustly and forcedly took from him without any demand hearing or Title divers Territories Towns and Lands there specified which his Ancestors had enjoyed and of right descended to him which hee forcibly detained Whereof hee demanded restitution and dammages On the other side Sanctius complained that Alphonsus the Emperour Father of this Alphonsus had by force of armes unjustly dispossessed his Grandfather of the Kingdome of Navarre after whose death Garsias his Nephew and next heir by the help of his friends and subjects recovered the greatest part thereof from the Emperour but not all Who dying leaving his Son Alphonso an infant with whom Sanctius made a league for ten years Alphonso during the League took by force of armes divers Castles Towns and Lands from Sanctius being his inheritance who thereupon demanded restitution both of the Castles Towns Lands and Territories taken from his Grandfather by Alphonsus his Father and from himself by Alphonsus together with the maine profit of the latter quia sine ordine judiciario ejectus est King Henry having fully heard their cases by the Advice and Assent of his Bishops Earles and Barons adjudged that both these Kings should make mutual restitution of what had been forcibly taken from either party together with the mean profits and dammages for part of them by an award and judgement under his Great Seal subscribed by all his Bishops Earles and Barons which recites super quaerelis vero praetaxatis de castellis terris cum omnibus terris pertinentis suis hinc inde violenter et injuste ablatis cum nichil contra Violentiam utrinque objectam à parte alterutra alteri responderetur nec quicquam quo minus restitutiones quas petebant faciendas essent alligaretur Plenariam utrinque parti supradictorum quae in jure petita erant fieri restitutionem adjudicabimus A clear Parliamentary resolution and judgement in point That Territories Lands Towns Castles injuriously taken by one King from another by force of armes and warre without just Title to them ought in Law and Justice to bee restored to the right heirs and owners of them and that Conquest and the longest Sword are no good Titles in Law or conscience against the right heir or inheriter which I desire those Sword-men and Lawyers who now pretend us a conquered Nation determine Conquest or the longest Sword a just Title to the Crowns Lands Revenues Offices Inheritances Houses Estates of other men now sadly to consider together with the sacred Texts Hab. 7. Micha 2.1 2 3 4 5. Job 20.10 18 19 20. Obad. 10. to 17. Ezek. ch 19. 35. Isa 33.1 1 King 21.1 to 25. Matth. 21.33 to 41. Luk. 20.14 to 17. ch 19.8
Judg. 17.2 3 4. Exod. 22.1 to 16. Levit. 6.4 5. ch 24.17 to 22. ch 25.27 28. Judg. 11.12 13. 1 Sam. 12.3 4. 2 Sam. 9.7 ch 12.5 6. ch 19.9 to 43. 1 Sam. 7.13 14. 2 King 14.22 Ezra 1.7 8 9 10 11. ch 6.5 which warrant the judgement and restitution they then awarded together with this memorable Act of resumption of the Crown Lands Rents and Revenewes alienated and given away by King Stephen to many Lords and Soldiers to maintain his usurped Title to be just King Henry the 2d Anno 1155. Praecepit eacum omni integritate infra tempus certum a quibuscunque deteâ—toribus resignari in jus statumque pristinum revocari Quidam vero indies carâ—as quas a Rege Stephano vel extorserant vel obsequiis emerant quâ—bus tuti forent protulerunt pleading them in barre against the Kings resumption Quâ—bus fuit a Rege responsum and let those who have purchased or gotten any of the Crown Lands Rents Revenewes by gift or otherwise now remember it Quod carâ—ae Inbasoris praejudicium legitimo Principi minime facere deberent Primo ergo indignati deinde territi consternati aegre quidem sed integre Usurpata vel diu tanquam solido â—ure detenta omnia resignarunt their Charters being all adjudged voyd eisdemque instrumentis minime tuti esse potuerunt as Nubrigensis and Brompton inform us The great and long suit between William de Stutevill and William de Moubray which had continued many years in the Kings Courts concerning the Barony of Moubray was ended in a Parliamentary Council by a final award there made between them that William de Stutevil should release all his right and claim to the Barrony to William de Moubray hee giving him nine Knights fees and twelve pounds Annual Rent for this release cumque super hoc diu certatum esset tandem Anno 1200. the 2d of King Johns Reign concilio Regni et voluntate Regis pax finalis concordia facta est inter praedictos as Roger de Houeden relates who records the agreement at large King Henry the 3d. Anno 1236. in a Parliamentary Council held at York Consilio sultus Magnatum Regni ended the controversie between himself and Alexander King of Scots touching the Lands King John had granted him by his Charter in Northumberland ratified by the subscriptions and assents of his Nobles Earles and Barons Anno 1237. Rex scripsit omnibus Magnatibus suis to appear before him and the Popes Legat at York de arduis negociis regnum contingentibus tractaturis where the difference between King Henry the 3d. and the King of Scots summoned to be present at this Parliament touching his Lands in England were finally determined and a firme peace made between them the King of Scots being to receive three hundred pound lands a year in England sine castri constructione homagiumque Regi Angliae faceret faedus inter eos amicitiae sanciretur hoc se fideliter facturum Regi Angliae conservaturum juraret After this Anno 1244. King Henry summoning all the Bishops Abbots and lay Barons to present all their military Services to him marched with a great army to New-Castle against the Scots who had fortified two Castles harboured rebels against the King and made a peace with France against their former Covenant and League VVhere to avoid the effusion of Christian blood which will cry to God for vengeance congregata Vniversitate Angliae Nobilium apud memoratum castrum tractatum est diligenter super tam arduo negotio Concilio habito circa Assumptionem beatae Maria dligentissimâ— Wherein the NOBLES made an agreement between the Kings of England and Scotland Alexander King of Scots by his special Charter recorded in Matthew Paris promising and swearing for him and his Heirs to King Henry and his Heirs quod in perpetuum bonam fidem eis servabimus pariter amorem c. Most of the Prelates Earles and Barons of Scotland sealing the charter with their Seals and swearing to observe it inviolably as well as their King In the Parliaments of 18 20 21 31 33. Ed. 1. There were many Pleas and Actions for Lands Rents and civil things as well as criminal held before the King in Parliament and adjudged resolved in these Parliaments by assent of the King and advice of the Lords the Kings Judges and Council learned in the Laws there being a large Parchment Volume of them in the Tower of London where all may peruse them some of them being also entred on the dorse of the Clause Rolls of these years Pasche 21. E. 1. Banco Regis Northumberland Rot. 34. John le Machon a Merchant lent a great summe of mony to Alexander King of Scots who dying his Son and Successour refused upon petition to pay it Whereupon hee appealed to the King of England for right propter suum supremum Dominium Scotiae Thereupon the Sheriffs of Northumberland by the Kings command accompanied with four men of that County went into Scotland to the Scots King and there personally summoned him to appear in England before the King of England to answerr this Debt After which all parties making default at the day the Merchant was amerced The King of Scots afterward appeared before the King but at the first time refused to answer at last hee desired respite to bee given him that he might advise about it with his Council of Scotland promising to appear at the next Parliament and then to give his answer And in Placit coram Rege Trin. 21. E. 1. Scotia there is an Appeal to the King of England between subjects of Scotland in a civil cause tanquam superiori regni Scotiae Domino And Clauso 29. E. 1. dorso 10. there is a letter of all the Nobles in Parliament to the Pope de Jure Regis in regne Scotia forecited p. 127 128. and Claus 10. E. 3. dorso 9. The King of Scots is stiled Vassallus Domini Regis Anglia It appears by Claus 5. E. 2. M. 30. that in a Parliament held at Stanford 3. E. 2. a business touching Merchandize and a Robbery on the Sea was heard and decided before the King and Lords in Parliament between the Earle of Holland who sent over a Proctor about it and others Claus 8. E. 2. m. 15. The Petition of David Earle of Ascelos in Scotland by the Kings command was read in full Parliament before the Prelates Earles and Barones that hee might be restored to his inheritance in Scotland to which it was answered by all their Assents that his inheritance was forfeited by his Ancestors for offences by them committed c. but yet the King would give him some other Lands for it In Claus 12. E. 2. it appears that the Popes Legate came into the Parliament and petitioned the King and Lords for a Legacy given by the Bishop of Durham Patriark of Jerusalem lately dead for which the King by assent of the
possessions and hereditaments with their appurtenances which come to the hands of the said King Richard by forfeiture by force of an Act made in a Parlement holden at Westminster the 21. year of his reign except the said Commons beseeching our said Liege Lord to have and take all only the issues and revenues of all the said Castles Manors Lordships Honors lands tenements rents services and of other the premises aforesaid with their appurtenances except afore except from the said fourth day of the said moneth of March and not afore Saving to every of the liegemen and subjects of our said Soveraign and liege Lord King Edward the fourth such lawfull title and right as he or any other to his use had in any of the premises the said third day of March other than he had either of the grant of the said Henry late Earl of Derby called King Henry the fourth the said Henry his son or the said Henry late called King Henry the sixth or by authority of any pretenced Parlement holden in any of their dayes And that it be ordained declared and stablished by the assent advice and authority aforesaid That all Statutes Acts and Ordinances heretofore made in and for the hurt destruction and avoyding of the said right and title of the said King Richard or of his heirs to ask claim or have the Crown Royal power estate dignity preheminence governance exercise possessions and Lordship abovesaid be voyd and be taken holden â—nd reputed voyd and for nought adnulled repealed revoked and of no force value or effect And furthermore consideration and respect had to the horrible detestable cruel and inhuman tyranny by the said Henry late Earl of Derby against his faith and ligeance done and committed to the said King Richard his rightwise true and natural Liege and Soveraign Lord the unright wise and unlawfull usurpation and intrusion of the same Henry upon the said Crown of Englond and Lordship of Irelond the great intollerable hurt prejudice and derogation that thereby followed to the said Edmund Mortymer Earl of March next heir of blood of the said King Richard time of his death and to the heirs of the said Edmund and the great and excessive damage that by the said usurpations and the continuance thereof hath grown to the said Realm of Englond and to the politique and peaceable governance thereof by inward wars moved and grounded by occasion of the said Vsurpation It be therefore Ordeined declared and stablished by the advice assent and authority aforesaid for the more stablishing of the assured and undoubted inward rest and tranquility of the said Realm of Englond And for the avoyding of the said usurpation and intrusion very cause and ground of the tribulation persecution and adversity thereof that the said Henry late Earl of Derby the heirs of his body coming be from henceforth unabled and taken and holden from henceforth unable and unworthy the premises considered to have joy occupy hold or inherit any estate dignity preheminence enheritaments or possessions within the Realm of Englond Wales or Irelond aforesaid or in Caleys or the Marches thereof And sith that the Crown Royal estate dignity and Lordship above rehearsed of right appertained to the said Noble Prince Richard Duke of York And that the said Usurper late called King Henry the sixth that understanding to the intent that in his opinion he might the more surely stand and continue in his usurpation and intrusion of and in the same Crown Royal estate dignities and Lordship evermore intended and laboured continually by subtile imaginations frauds deceipts and exorbitant means to the extreme and final destruction of the same noble Prince Richard and his issue And for the execution of this malicious and damnable purpose therein in a preâ—ence Parliament by him and his usurped authority holden at Coventree the 38 year of his usurped Reign without cause lawfull or reasonable declared and judged the same noble Prince Richard and the Noble Lords his Sons that is to wit Edward then Earl of March and now the King our Soveraign Lord abovesaid and Edmund Earl of Ruthland to be his Rebels and Enemies them and all their issue dis-inheriting of all name state title and preheminence tenements possessions and enheritaments for evermore cruelly wickedly and unjustly and agenst all humanity right and reason whereby the said noble Prince Richard and his sons above named were compelled by the dread of death to absent them for a time out of this Realm of Englond the natural land of their birth unto their intollerable hurt prejudice heavinesse and discomfort And where after these the said noble Prince Richard Duke of York using the benefice of the Law of Nature and sufficiently accompanied for his defence and recovery of his right to the said Crown of the said Realm came thereunto not then having any Lord therein above him but God And in the time of a Parliament holden by the said Henry late called King Henry the sixth the sixth day of October the 39 year of his said usurped reign intended to use his right and to enter into the exercise of the royal powers dignitees and Lordships abovesaid as it was lawfull and according to Law reason and justice him so to doe and thereupon shewed opened declared and proved his right and title to the said Crown to fore the Lords Spiritual and temporal and Commons being in the same Parlitment by antient matters of sufficient and notable Record undefaisible whereunto it could not be answered or replyed by any matter that of right ought to have deferred him then from the possession thereof yet nevertheless for the tender zeal love and affection that the same Duke bare of Godly and blessed vertues and natural disposition to the restfull governance and pollicy of the same Realm and the Common wele thereof which he loved all his life desired and preferred afore all other things earthly though all the seid Lords spiritual and temporal after long and mature deliberation by them had by good advice upon the said right and title and the authorities and Records proving the same the answers thereunto gives and the replâ—cations to the same made knew the same right and title true by them and the seid Commons so declared accepted and admitted in the same Parliament Iâ— liked him at the grete instance desire and request of the seid Lords solemnply and many times unto him made to assent and grant unto a convention concord and agreement between the seid Henry late called King Henry the sixth on that opâ—party and him on that other upon the seid right and title by the same late called King by the advice and assent of the seid Lords Spiritual and Temporal and Commons being in the seid Parliament auctorized in the same comprehending among other that the seid Vsurper late called King Henry the sixt understanding certainly the seid title of the said Richard Duke of York just lawfull true and sufficient by the
House is a stronger argument to prove them no Court at all at least of Judicature than their adjournment or prorogation of themselves to evidence them to be a distinct Court from the House of Lords Should I here subjoyn to the premises all the cases extant in the Lords Iournals and Parliament Records evidencing the Lords real Jurisdiction proceedings and Judicature in civil causes in the reigns of King Ed. the 4. Richard the 3. Henry the 7. and 8. Queen Mary Queen Elizabeth King Iames and King Charles I should be over tedious to the Readers I shall therefore only trouble you with 2 cases more In the Parliament of 18 Elizabeth there arose a question about place and precedency in the case of the Lord de la Ware upon debate thereof in the Lords House ALL THE LORDS except the Lord Windesore ADIUDGED that he should have place next after the Lord Wilâ—oughbie of Erisbe And the Lord Keeper was appointed to acquaint the Queens Majesty with this determination of the Peers and to know her pleasure concerning the same In the last long Parliament Pasch 20 Caroli this cale of Note and Consequence was adjudged by the Lords against the late resolutions of some Judges touching the Jurisdiction of the Admiralty Court between Fairfax and le Gay and Mr. Johns a London Merchant In Lent Vacation 1638. Mr. Iohns libelled in the Admiralty against one Hooper for 26000 weight of Barbadoes Tobacco sold to him at St. Maloes in France in partibus transmarinis infra jurisdictionem Admiraltatis Angliae by one Bâ—les factor to Hooper for fraight due unto him by Hooper for his Ship called the William and Anne whereof Iohns was owner without alleging that this sale and contract was made super altum mare Fairfax and le Gay became sureties for Hooper in the Admiralty Iohns had a sentence against Hooper in the Admiralty upon this Libel who soon after became a Bankrupt Whereupon Fairfax and le Gay his sureties appealed to the Delegates to avoid the sentence and execution against them and then moved in the Kings Bench for a Prohibition to stay the sute suggesting the contract to be made at St. Maloes upon the land and not super altum Mare and so not within the Jurisdiction of the Admiralty Upon which they procured a rule to stay the Proceeding Whereupon Johns petitioned the House of Lords for relief against this rule and that the Delegates might proceed to give sentence upon the Appeal that so he might have execution against the sureties Hooper being a Bankrupt for above one hundred thousand pounds and all his estate sold so as his debt would be wholly lost if he should be deprived of the benefit of his sentence to which the sureties were liable Upon his Petition this point in Law amongst others whereon the hinge of his case turned was argued at the Lords Bar by Mr. Serjeant Rolls Mr. Maynard for Fairfax and le Gay and by my self for Johns Whether the Admirals Court had any true antient legal Jurisdiction of Contracts made at St. Maloes and other parts beyond the Seas between Merchants and Mariners touching their Merchandise and marine affairs upon the Land as well as on the Sea The Sureties Counsel argued confidently they had not upon the Statutes of 13 R. 2. c. 5.15 R. 2. c. 3. 2 H. 4. c. 14. and the Presidents cited in Sir Ed. Cooks 4 Instit. p. 124. and c. 22. of the Court of Admiralty and in Hubberts Reports â— 331 But I argued to the contrary and clearly proved by the Laws of Oleron Lex 1 2 6 8 9 10 15 16 22 23. made in the reign of King Richard the 1. Anno 1190. ratified under the Seal of that Island by that King confirmed and used by Henry 3. Edw. 1. and practised ever since as the Law of the land in the Court of Admiralty as Sir Edward Cook himself asserts and by the notable Record of 22 E. 1. in Cooks 4 Institutes p. 142 143 144. and Seldens Mare Clausum l. 2. c. 28 f. 275. the Black Book of the Admiralty the Parliament Roll of 4 H. 4. n. 47. for confirmation of the Laws of Oleron 1. That the Admiralty in all ages since King Rich. the 1. â—ill the making of these Statutes and ever since till Hill 2 Jacobi C. B. between Tomlinson Plaintif and Philips Defendant had held Jurisdiction of such contracts between Merchants and Mariners made upon the land in forein parts as well as on the Sea as the Marshal had always used to hold plea of Contracts and deeds of Arms Warr Treasons Murders and Felonies out of the Realm which cannot be determined by the Common Law And that without any Prohibiâ—ion granted to stay the proceedings in all that large tract of time both before and since these Statutes 2ly That these Acts were made only to restrain the Admirals Incroachments of Jurisdiction in Contracts Pleas Quarels other things made or done by Landor Water within the Bodie of the Counties of this Realm or in any Port Harbor Haven or Creek within the Counties the Conusance whereof properly belonged to the Kings Courts or to the Courts of Cities Burroughs and other Lords and to confine them only to such contracts and things within the Realm whereof the Sea is a part being under the Kings Dominion and Lordship as are made or done upon the Sea not upon the Land oâ— Water in any Haven Port River Creek within the precinct of any County but not to debar them in the least degree of their antient undoubted jurisdiction they always had and exercised de Jure without complaint or restraint in contracts of Merchants and Mariners made upon the Land in forein parts beyond the Seas of which the Kings Common Law Courts and the Courts of other Cities Burroughs Ports Lords never had nor could have the least Jurisdiction since out of the Realm and no Jury de Vicineto could be thence awarded or summoned to try the Contract in England which I proved by the Parliament Rolls and Commons Petitions whereon these Statutes were grounded being most express in point as 13 R. 2. Rot. Paerl n. 41.14 R. 2. n. 37.15 R. 2. n. 30.2 H. 4. n. 89.4 H. 4. â— 47.11 H. 4. n. 61. compared with 27 E. 3. c. 13.2 R. 2. c. 4.32 H. 8. c. 14.5 Eliz. c. 5.27 Eliz. c. 27. which so interpret it and by most of the Cases cited by Edward Cook in his Chapter of Admiralty extending only to contracts made within the body of any County within the Realm not in any forein parts on the Land or Sea without or beyond the Realm whereof the Comon Law Courts had never Jurisdiction before Sir Sir Edw. Cooke was Chief Justice and that by a meer fiction and false contradictory surmise contrary to truth reason Justice Law and the Letter of Charterparts and Contracts themselves viz. that they were made at St. Maloes Burdeaux Sevil