if that of Ingulphus with other our Historians and some Lawyers be true which Sir Edward Cook and Mr. Selden deny that King Alfred first divided the Realm into Counties as all grant he did into Hundreds and Tithings and erected Hundred Courts wherein Knights of the Shire were alwaies yet are and ought to be elected there could be no Knights of Shires at least if any Citizens or Burgesses to serve in Parliament before this division though there were Earls Dukes Barons before his reign who were present by the Kings summons not peoples elections at our Great Councils or Parliaments as Mr. Selden and Sir Henry Spelman undeniably manifest and I have elsewhere proved at large Their sitting voting judging therefore in Great Councils Parliaments being so antient clear and unquestionable ever since their first beginning til now and the sitting of Knights Citizens Burgesses by the peoples election in our antientest Great Councils Parliaments not so clearly evident by History or Records as theirs we must needs acknowledge subscribe to this their Right and Title or else deny the Knights Citizens Burgesses rights to sit vote in our Great Councils Parliaments rather than theirs who have not so antient nor clear a Title or right as they by many hundreds of years Fourthly This Right and Privilege of theirs is vested legally in them by the very Common Law and Custom of the Realm which binds all men By the unanimous consent of all our Ancestors and all the Commons of England from age to age assembled in Parliament since they sat in any Parliaments who alwaies consented to desired and never opposed the Lords sitting voting power or Judicature in Parliament and by Magna Charta it self signed and ratified by King John wherein it is expresly granted Ad habendum COMMUNE CONCILIVM REGNI de auxiliis assidendis de Scutagiis assidendis submoneri faciemus Archiepiscopos Episcopos Abbates Comites MAJORES BARONES REGNI singulatim per Literas nostras c. And in the Great Charter of King Henry the 3. they are first mentioned and provided for Hereupon King Henry the third not long after Magna Charta was granted and at the same time it was proclamed confirmed with a most solemn Excommunication in the presence of all the Lords and Commons by all the Bishops of England against the infringers thereof summoning a Parliament at London in the year 1255. to aid him in his warrs in Apulia the Earls and Barons absolutely refused to give him any assistance or answer at all for this reason Quod omnes Barones tunc temporis non fuerunt juxta tenorem Magnae Chartae suae vocati ideo sine Paribus suis tunc absentibus nullum voluerunt tunc responsum dare vel Auxilium concedere vel praestare That ALL THE BARONS were not summoned by him to this Parliament as they ought to be according to the tenor of Magna Charta whereupon they departing in discontent and refusing to sit longer the Parliament was first adjourned and at last dissolved And upon this very ground among others the Parliament of 21 R. 2. with all the Acts and proceeding therein were totally repealed and nulled by the Parliament of 1 H. 4. because the Lords who adhered to the King were summoned by him to the Parliament and some of the opposite party imprisoned impeached unsummoned and many of the Knights of the shire were elected only by the Kings nomination and Letters to the Sherifs And the Parliament it self kept by force viris armatis et sagittariis immensis brought out of Cheshire as an extraordinary guard quartered in the Kings Court at Westminster and about Charing Crosse and the Muse of which Grafton and other Historians write thus That they fell into so great pride of the Kings favour that they accounted the King to be as their fellow and they set the Lords at nought yet few or none of them were Gentlemen but taken from the plough and Cart and other Crafts And after these rustical people had a while courted they entred into so great a boldness that they would not let neither within nor without the Court to beat and slay the Kings good Subjects to take from them their victuals and pay for them little or nothing at their pleasure as our free-quarâ—erers do now falling at last to ravish mens wives and daughters And if any man fortuned to complain of them to the King he was soon rid out of the way no man knew how or or by whom so as they did what they listed the King not caring to doe justice upon them but favouring them in their mis-doings confiding in them and their guards against any others of the kingdom which gave the Lieges of his kingdom great matter of commotion and discontent The bringing up of which guard to Westminster to force and overawe the Parliament to effect his designs is one principle Article exhibited against him by the Parliament of 1 H. 4. wherein he was forced to resign his Crown and then deposed I pray God our new armed Guard and Courtiers at Whitehall and the Muse of as mean condition as those fall not by degrees to the self-same exorbitances contempt of the King Lords Parliament and oppression of the people to their general mutining and discontent In the Parliaments of 6 E. 3. N. 1. Parl. 2 N. 5.6 8 9 8 E. 3. N. 5. 15 E. 3. N. 4. 17 E. 3. N. 2. 20 E. 3. N. 5. 21 E. 3. N. 4. 22 E. 3. N. 1. 25 E. 3. N. 1. 29 E. 3. N. 4. 30 E. 3. N. 1. 37 E. 3. N. 1. 42 E. 3. N. 1. 50 E. 3. N. 1. 51 E. 3. N. 3. 1 R. 2. N. 1. 2 R. 2. N. 1. 3 R. 2. N. 1. 4 R. 2. N. 1. 5 R. 2. N. 65. 6 R. 2. N. 6. 7 R. 2. N. 1. 9 R. 2. N. 1. 8 H. 4. N. 54. We find in these Parliament Rolls that these Parliaments have been usualy prorogued adjourned from the days they were summoned to meet and have not saie nor acted at all because sundry of the Lords some Commons were not come but absent by reason of foul weather shortness of warning or other publique imployments all their personal presence in Parliament being reputed necessary and expedient And 20 R. 2. N. 8. The Commons themselves in Parliament required the King to send for such Bishops and Lords who were absent to come to tho Parliament before they would consult upon what the Chancellor propounded to them in the Kings name and behalf to consider of To recite no more antient presidents In the Parliament of 2 Caroll the Earl of Arundel not sitting in the Parliament being after his summons committed by the King to the Tower of London about his Sons mariage May 25. 1626. without the Lords privity and consent whereby their privileges were infringed and the House deprived of one of their Members presence thereupon the House of
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
Earl of Ireland Mâ—chael de la Poole Earl of Suffolk Robert Tresylam Chief Justice Nicholas Bramber Knight and other of their adherents of High Treason against the King and his Realm The Articles they exhibited against them were 36 in number at large recorded in Henry de Knyghton de Eventibus Angliae l. 5. col 2713. to 2727. with the whole proceedings thereupon for which many were attainted condemned executed BY JUDGEMENT OF THE LORDS notwithstanding the Kings intercession for some of them to the LORDS they are likewise mentioned in the printed Statutes at large of 11 R. 2. c. 1 3 4. in Walsingham Hist Angliae p. 359 to 367. and other vulgar Historians I shall therefore for brevity refer you to them Exactum est juramentum a rege ad standum REGULATIONI PROCERUM et non solum a rege sed a cunctis regni incolis idem juramentum est expetitum In the Parliament of 14 R. 2. n. 14. The King and Lords without the Commons declared That in the 7 year of this King the Earldom of Richmond with the appartenances WERE ADJUDGED BY THE KING AND LORDS to be forfeited to the King by reason of the adherence of John Duke of Britain then Earl of Richmond to the French against his allegiance to the King and his father king Edward the 3. which judgement was not then enrolled in the Rolls of Parliament for certain causes known to the King and LORDS but was now inrolled and the lands granted to the Earl of Westmerland which King Henry the 4th would not revoke upon the Commons Petition to restore them to the Duke 1 H. 4. rot Parl. n. 78. In the Parliament of 17 R. 2. n. 11 Richard Earl of Arundel in the presence of the KING and LORDS accused the Duke of Lancastre of 5 particular misdemeanors In which when the King had justified him it was awarded by the King BY THE ASSENTS OF ALL THE LORDS that the Earl should in full Parliament make a formal submission to the Duke and crave pardon for his false accusation In the Parliament of 21 R. 2. rot Parl. n. 12. to 17. the Commons impeached Thomas Arundel Archbishop of Canterbury of high Treason for procuring the Duke of Glocester and others there named to accroach to themselves regal power and execute the Commission of 10 R. 2. when he was Chancellor praying that he might be kept under safe custody with a protestation of making for her accusations during the Parliament against him and others After which they prayed the King to give judgement against the Archbishop according to his desert who submitted himself to the Kings mercy Whereupon the KING LORDS and Sir Thomas Piercy the general Proctor for the Bishops in this case adjudged the fact of the Archbishop to be Treason and himself a Traytor and that thereupon he should be banished his temporalties seised and all his lands in proper possession or use together with his goods forfeited to the King and presenting the day and place of his departure into exile After this in the same Parliament of 21 R. 2. the Lords Appellant therein named accused the Duke of Glocester the Earls of Arundel and Warwick and others of High Treason for procuring the Commission in 10 R. 2. for raising forces and coming to the Kings person armed For accroching to themselves royal power and adjudging some to death and executing them as Traytors in the Parliament of 11 R. 2. For intending to surrender up their Homage and allegeance to the King and then to depose him and saying they had good cause to depose him c. Hereupon the Earl of Arundel being brought in custody to the Parliament before the Lords by the Kings command and assent of the Lords had his charge read and declared before him by the Duke of Lancaster Steward of England to which he pleaded his pardon which plea being disallowed because his pardon was revoked by this Parliament and he relying on it without any other plea the Lords appellants prayed judgement against him as convict of the Treasons aforesaid Whereupon the Duke of Lancaster by assent of the KING Bishops Earles and LORDS adjudged him convict of the Articles aforesaid and thereby a Traytor to the King and Realm and that he should be therefore hanged drawn and quartered and forfeit all his Lands in fee or fee-tayl which he had in the 10. year of this King with all his goods and chattels But for that he was come of Noble bloud the King pardoned his execution of hanging drawing and quartering and granted that he should be beheaded which was accordingly executed the same day on Tower hill by the Marshal of England The 28. of September the Earl of Warwick was brought ao his Trial in the same manner as the Earl of Arundel who confessed all the Articles submitted to the Kings grace and had the same judgement pronounced against him in the same manner as the Earl of Arundel But the King at the Lords Appellants and others requests pardoned his execution granted him his life and banished him into the Isle of Man The Duke of Norfolk by assent and Act of Parliament was tried in a Court Martial by the King Lords and some Knights for words spoken against the King and judgement was there given that he should be banished into Hungary and his lands forfeited to the King Within one year after such is the vicissitude of all worldly honour and power in the Parliament of 1 H. 4. Plac. Coron n. 1. to 11. at the prayer of the Commons the great Lords Appellants Edward Duke of Albemarl Tho. Duke of Surry John Duke of Exeter John Marquess Dorset John Earl of Salisbury and Thomas Earl of Glocester were all questioned and brought to their several answers before the King and Lords for their Acts and proceedings in the Parliament of 21 R. 2. the records whereof being read before them in Parliament they made their several answers and excuses thereunto whereupon the King and Lords after consultation thereupon ADJUDGED that the said Dukes Marques and Earls should lose their several Titles and Dignities of Dukes Marquess and Earls with all the honor thereunto belonging and that they should forfeit all the Lands and goods which they or any of them had given them at the death of the Duke of Glocester or since and that if they or any of them should adhere to the quarrel or person of King Richard lately deposed that then the same should be Treason The which Judgement was pronounced against them by William Thurning Chief Justice of the Kings Bench in Parliament by the Kings command but in the Parliament of 2 H. 4. rot Parl. n. 33. upon the Petition of the Lords and Commons to the King the Earls of Rutland and Somerset were pardoned and restored by the King in Parliament In the Parliament of 2 H. 4. n. 14. the Bishop of Norwich was accused by Sir Thomas Erpingham the Kings
the Prior of Coventry the King granteth by Assent of the Bishops and Lords that no man do break the head of their Conduit nor cast any filth into their water called Sherbouâ—n on pain of ten pound and treble dammages to the Prior. In the Parliament of 9. H. 5. n. 12. Upon long debates of the Lords and Iustices it was resolved by them that the Abbot of Ramsy should have no prohibition against Walter Cook parson of Somersham who sued for Tithes of a Meadow called Crowland Mead in the hands of the Abbots Tenants In the great case of Precedency between the Earl Marshall and Earle of Warwick in the Parliament of 3. H. 6. n. 10 11. c. The Lords being to bee Iudges of the same suspended both of them from sitting in the house till their case was fully heard and they all voluntarily swore on the Gospel that they would uprightly judge the case leaving all affection In the Parliament of 11. H. 6. n. 32 33 34 35. Upon a Petition the King and Lords in Parliament adjudged the Dignity Seigniory Earledome of Arundel and the Castle and Lands thereunto belonging to John Earle of Arundel who proved his Title thereto by a deed of Entayle against the Title of John Duke of Norfolck who layed claim thereunto And in the Parliament of 39 H. 6. n. 10. to 33. The claime of the Duke of York and his Title to the Crown of England against the Title of King Henry the 6 th was exhibited to the Lords in full Parliament the Lords upon consultation willed it to be read amongst them but not to bee answered without the King The Lords upon long consultation declared this Title to the King who willed them to call his Justices Sergeants and Attorney to answer the same Who being called accordingly utterly refused to answer the same Order thereupon was taken That every Lord might therein freely utter his conceit without any impeachment to him In the end there were five objections made against the Dukes Title who put in an answer to every of them which done the Lords upon debate made this order and agreement between the King and Duke That the King should injoy the Crown of England during his life and the Duke and his heirs to succeed after him That the Duke and his two sons should bee sworne by no means to shorten the dayes or impaire the preheminence of the King during his life That the said Duke from thenceforth shall be reputed and stiled to bee the very Heir apparent to the Crown and shall injoy the same after the death or resignation of the said King That the said Duke shall have hereditaments allotted to him and his sons of the annual value of ten thousand marks That the compassing of the death of the said Duke shall bee Treason That all the Bishops and Lords in full Parliament shall swear to the Duke and to his heirs in forme aforesaid That the said Duke and his two sons shall swear to defend the Lords for this agreement The King by Assent of the Lords without the Commons agreeth to all the Ordinances and accords aforesaid and by the Assent of the Lords utterly repealeth the statute of intayle of the Crown made in 1. H. 4. so alwaies as hereafter there be no better Title proved for the defeating of their Title and this agreement by the King After all which the said Duke and the two Earles his sonnes came into the Parliament Chamber before the King and LORDS and sware to performe the award aforesaid with protestation if the King for his part duly observed the same the which the King promised to do All which was inrolled in the Parliament Rolls Lo here the Lords alone without the Commons judge and make an award between King Henry the 6th and the Duke of York in the highest point of right and title that could come in question before them even the right and title to the Crown of England then controverted and decided the King and Duke both submitting and assenting to their award and promising swearing mutually to perform it which award when made was confirmed by an Act passed that Parliament to which the Commons assented as they did to other Acts and Bills And here I cannot but take special notice of Gods admirable Providence and retaliating Justice in the translation of the Crown of England from one head family of the royal blood to another by blood force war treason and countenance of the Authority of the temporal and spiritual LORDS and COMMONS in Parliament in the two most signal presidents of King Edward and King Richard the 2 d. which some insist on to prove the Commons Copartnership with the Lords in the power of Judicature in our Parliaments the Histories of whose Resignations of their Regal Authority and subsequent depositions by Parliament I shall truly relate Anno 1326. the 19. of Ed. 2d Queen Isabel returning with her Son Prince Edward and some armed forces from beyond the Seas into England most of the Earles and Barons out of hatred to the Spencers and Kingâ— repaired to them and made up a very great army The King thereupon proclaimed that every man should resist oppose kill them except the Queen Prince and Earle of Kent which they should take prisoners if they could and neither hold any correspondency with them nor administer victuals nor any other assistance to them under pain of forfeiting their bodies estates But they prevailing and the King being deserted by most hee fled into Wales for shelter Whereupon Proclamation was made in the Queens army every day that the King should return and receive his Kingdome again if hee would conforme himself to his Leiges Quo non comparente Magnasâ—es Regni Hereâ—ordiae Concilium injeâ—unt in quo filius Regis Edwardus factus est Cusâ—os Angliae communi Decreto cui cuncti tanquam Regni custodi fidelitatem fecerunt per fidei sacramentum Deinde Episcopum Norwicensem fecerunt Cancellarium Episcopum vero Wintoniensem regni Thesaururium statuerunt Soon after the King himself with most of his evil Counsellors were taken prisoners being betrayed by the Welch in whom they most confided Hagh Spencer Simon Reding Baldoik and others of the Kings party being executed at Hereford Anno 1327. the King came to London about the feast of Epiphany where they were received with great joy and presents Then they held a Parliament wherein they all agreed the King was unworthy of the Crown and fit to be deposed for which end there were certain Articles drawn up against him which Adam de Orleton Bishop of Winchester thus relates in his Apology i Ea autem quae de Consilio et assensu omnium Praelatorum Comitum et Baronum et totius Communitatis dicti Regni concordata ordinata fuerunt contra dictum regem ad amotionem suam a regimine regni contenta sunt in instrumentis publicis Reverendo patre domino J. Dei
Peers made this memorable Petition and Remonstrance of their Privileges to the King The humble Remonstrance and Petition of the Peers MAy it please your Majestie we the Peers of this Realm now assembled in Parliament finding the Earl of Arundel absent from his place amongst us his presence was therefore called for But thereupon a message was delivered us from your Majestie by the Lord Keeper That the Earl of Arundel was restrained for a misdemeanor which was personal to your Majesty and lay in the proper knowledge of your Majesty and had no relation to matter of Parliament This Message occasioned us to inquire into the Acts of our Ancestors and what in like cases they had done that so we might not erre in a dutifull respect to your Majesty and yet preserve our right and privileges of Parliament And after diligent search made both of all Stories Statutes and Records that might inform us in this case we find iâ— to be an undoubted Right and constant Privilege of Parliament That no Lord of Parliament sitting in Parliament or within the usual time of Privilege of Parliament is to be imprisoned or restrained without sentence or order of the House unlesse it be â—or Treason or Felony or for refusing to give surety for the Peace And to satisfie our selves the better we have heard all that could be aleged by your Majesties learned Counsel at Law that might any way infringe or weaken this claim of the Peers and to all that can be shewed or alleged so full satisfaction hath been given as that all the Peers in Parliament upon the question made of this Privilege have una voce consented that this is the undoubted right of the Peers and hath been inviolably enjoyed by them Wherefore we your Majesties loyal Subjects and humble Servants the whole body of the Peers in Parliament assembled most humbly beseech your Majesty that the Earl of Arundel a Member of this Body may presently be admitted by your gracious favour to come sit and serve your Majesty and the Commonwealth in the great affairs of this Parliament And we shall pray c. Upon which Remonstrance and Petition the King refusing to inlarge him thereupon the Lords to maintain their Privilege adjourned themselves on the 25 and 26 of May without doing any thing and upon the Kings refusal to release him they adjourned from May 26 till June 2. refusing to sit and so the Parliament dissolved in discontent his imprisonment in this case being a breach of privilege contrary to Magna Charta In this very Parliament the Lord Digby Earl of Bristol being omitted out of the summons of Parliament upon complaint to the Lords House was by order admitted to set therein as his Birthright from which he might not be debarred for want of Summons which ought to have been sent unto him ex debito Iustitiae as Sir Edward Cook in his 4 Institutes p. 1. The Act for ttriennial Parliaments and King John great Charter resolve And not long after the beginning of this Parliament upon the Kings accusation and impeachment of the Lord Kimbolton and the five Members of the Commons House both Houses adjourned and sate not as Houses till they had received satisfaction and restitution of those Members as the Journals of both Houses manifest it being an high breach of their Privileges contrary to the Great Charter If then the Kings bare not summoning of some Pears to Parliament who ought to sit there by their right of Perage or impeaching or imprisoning any Peer unjustly to disable them to sit personally in Parl. be a breach of Privilege of the fundamental Laws of the Realm and Magna Charta it self confirmed in above 40 successive Parliaments then the Lords right to sit vote and judge in Parliament is as firm and indisputable as Magna Charta can make it and consented to confirmed by all the Commons people and Parliaments of England that ever consented to Magna Charta though they be not eligible every Parliament by the Freeholders people as Knights and Burgesses ought to be and to deny this birthright and privilege of theits is to deny Magna Charta it self and this present Parliaments Declarations proceedings in the case of the Lord Kimbolton a Member of the House of Peers Fifthly The Treatise intituled The manner of holding Parliaments in England in Edward the Confessors time befose the Conquest rehearsed afterwards before William the Conquerour by the discreet men of the Kingdom and by himself approved and used in his time and in the times of his successors Kings of England if the Title be true and the Treatise so antient as Sir Edward Cook others now take it to be When as its mention of the Bishop of Carlisles usual place in Parliaments which Bishoprick was not founded till the year of our Lord 1132. or 1134. as Matthew Paris Matthew Westminster Roger Hoveden Godwin and others attest in the later end of Henry the first his reign Its menâ—ion of the Mayors of London other Cities and writs usually directed to them to elect two Citizens to serve in Parliament whereas London it self had no Mayor before the year 1208. being the 9. year of King John nor other Cities Mayors til divers years after nor can any Writs for electing Knights of Shires Citizens or Burgesses to serve in Parliament which it oft times writes of be produced before 49 H. 3. nor any Writs to levy their expences or wages for their Service in Parliaments which it recites be produced before the reign of King Edward the 1. Nor was the name of Parliament which it mentions and writes of so much as used by any Author before the later end of King Henry the 3. his reign after whose reign this Modus was certainly compiled towards the end of K. Richard the 2. or after as other passages in it evidence beyond all contradiction This magnified Treatise be it genuine or spurious determines thus of the Kings and Lords rights to be personally present in all Parliaments The King is bound by all means possible to be present at the Parliament unless he be detained or let there from by bodily sickness and then he may keep his Chamber yet so that he lye not without the Manour or Town where the Parliament is held and then he ought to send for twelve persons of the greatest and best of them that are summoned to the Parliament that is two Bishops two EARLS two BARONS two Knights of the Shire two Burgesses and two Citizens to look upon his person to testifie and witness his estate and in their presence he ought to make a Commission and give Authority to the Archbishop of the Place the Steward of England and Chief Justice that they joyntly and severally should begin the Parliament and continue the same in his name express mention being made in that Commission of the cause of his absence thence which ought to suffice and admonish the OTHER NOBLES
Liberties from vassalage to the Norman yoke assembling all the Commons of Kent to Canterbury informed them That they were born freemen that the name of bondage was never heard amongst them that nothing but servitude attended them if they unworthily submitted to the insolency of the invading Enemy as others had done And thereupon exhorted them manfully to fight for the Laws and Liberties of their County chusing rather to end an unhappy life by fighting valiantly for them in the field than to undergoe an unaccustomed yoke of bonduge or to be reduced from their known Liberties to an unknown and unsure slavery After which the Archbishop and Abbot chusing rather to dye in battel than to behold the misery and slavery of their Native Country became the Captains of the Kentish Army which they raised and by a Stratagem invironing Duke William and his whole Army at Swanscomb they procured this Grant and Concession from him That all the people of Kent should for ever enjoy their antient Liberties without diminution and use the Laws and antient Customs of their Country they being resolved as Stigand told the Duke rather to part with their lives than them Liberty being the proper badge of Kentishmen After which Duke William marching to London to be Crowned King Cumque â—eracta victoria Tyranni nomen exhorrescens et legitimi Principis personam induere Gestiens à Stigando tunc temporis Canâ—uariensi Episcopo consecrari deposceret Ille out of an heroick gallant English Christian spirit Viro ut aiâ—bâ—t Cruento et alienâ— juris Invasori manus imponere nullatenus adquievit Whereupon he was crowned by Aldred Archbishop of York King William for this his stoutness and opposition in defence of his Countries Laws and Liberties under a pretence of honor first carried him with him into Normandy as a Prisoner at large afterwards upon feigned pretences caused him to be deprived of his Archbishoprick and then shut him up Prisoner in the Castle of Winchester where he soon after died of grief or famine having scarce enough allowed him to keep soul and life together Such a curb and terror was he to him whiles he lived in place and power that he could not carry on his designs against the English to captivate or enslave them till he was removed out of the way of this Conqueror who came to the Crown by the effusion of so much Christian bloud that Gulielmus Neubrigensis gives this censure of it and let all other invaders of the Crown by bloud observe it Sane quod idem Christianos innoxios hostiliter Christianus impetiit et tanto sibi sanguine Christianum Regnum paravit quantae apud homines gloriae tantae etiam apud Deum noxae fuit Whence Stigand refused to crown him Simon Monâ—eâ—ort Earl of Leicester the greatest Pillar and General of the Barons in the wars against King Henry the 3d for the preservation corroboration of Magna Charta the Liberties and Properties of the People was so terrible to this extravagant oppressive King frequently violating both his Great Charters Laws Oaths That being perswaded to enter into his house in a tempest of thunder and lightning which he very much feared the Earl courteously meeting him and saying Why do you fear tht tempest is now past the King thereunto replyed not jestingly but seriously with a stern countenance I fear thundring and lightning above measure but by the head of God I tremble more at thee than at all the thundring and lightning in the world Being afterwards slain in the Battel of Eusham in defence of his Countries Liberties Rishanger gives this Encomium of him Thus this magnificent Earl Simon ended his dayes who not only bestowed his estate but his person and life also for relief of oppressions of the poor for the asserting of Justice and the Rights of the Realm A sufficient Ground for such Nobles and their Posterity to sit and Vote as Peers in Parliament without the peoples election In the 3 4 14 15 of K. Edw. 2. his reign Tho. Earl of Lancaster and other potent wealthy Barons were the chief Sticklers against Gaverston and the Spencers who seduced the King oppressed the people and were the principal Pillars of our Laws Liberties as our Historians relate at large procuring those ill Counsellors to be banished and removed from the King even by force of Arms. In 10 11 22. of King Rich. 2. the Duke of Gloucester the Earl of Arundel and other potent Lords were the principal opposers of the Kings ill Counsellors Tyranny the chief protectors of the Laws and peoples Liberties to the loss of some of their lives heads estates as our Statutes the Rolls of Parliament in those years and Historians witness whence Walsingham writing of the Duke of Glocester's death murthered by the Kings command at Calice who was the principal Anti-royalist and head of all the Barons useth this expression Thus died this best of men the Son and Uncle of a King in quo posita fuere spes solatium TOTIVS REGNI COMMUNITATIS in whom the hope and solace of the Commonalty of the whole kingdom were placed who resented his death so highly that in the Parl. of 1 H. 4. Hall who had a hand in his murder was condemned and executed for a Traytor his Head Quarters hung up in several places and K. Richard among other Articles deposed for causing him to be murthered Since then our Peers and Nobles as the premised Examples abundantly evidence have been alwaies persons of greatest valour power estate interest most able forwards to oppose the Tyranny Exactions of our Kings and to preserve the Great Charters of our Liberties first gained since preserved and transmitted to us by their valour bloud counsel cate with our other Laws which they have upon all occasions manfully defended with the hazard loss of their lives Liberties Estates and upon this ground were thought meet by the wisdom of our Ancestors to merit and enjoy this privilege of sitting voting judging in Parliament by vertue of their Peerage and Baronies And since we must all acknowledge that the Lords assembled in a Great Council by the King at York as the Commons themselves acknowledge and remonstrate Exact Collection p. 13. were the chief instruments of calling this present Parliament and were therefore in the Act for Triennial Parliaments principally intrusted to summon and hold all future Parliaments in the Kings Lord Chancellors or Lord Keepers defaults Being also very active in suppressing the Star-chamber High Commission Councel-Table Prelats and other grievances and those who fitst appeared in the Wars against the King and his party in defence of our Laws Liberties Religion Parliaments Privileges to the great encouragement of others witnesse the deceased Lord General Essex Brooke Bedford Stamford Willougbie Lincoln Denbigh Manchester Roberts and others it would be the extremity of folly ingratitude and injustice to deny our Peers this hereditary Right Privilege Honour now w ch
Socii autem praedicti Cancellarii quos Rex associaver at illi in regimine regni accusâ—bant eum in multis dicentes quod ipse spretis illorum consiliis omnia negotia regni cum impetu voluntaria dispositione faciebat Archiepiscopus vero Rothomagensis Willielmus Marescallus Comes de Strogoil ostenderunt coram populo literas Domini Regis figillatas per quas Dominus Rex mandavit à Messana quod ipsi associarentur Cancellario in regimine regni ut et Cancellarius sine illorum consilâ—o aliorum assignatorum nihil de negoâ—io regis ac regni tractaret et ut praedictus Cancellarius si ipse quodâ—unque â—n detrimentum Regni vel sine consilâ—o praedictorum fecisset deponeretur et loco illius institueretur Rothomagensis Archiepiscopus Placuâ— ergo Johanni fratri Regis omnibus Episcopis et Comitibus et Baronibus Regni as Judges civibus Londoniarum which Matthew Paris and others mention not but only Hoveden and that as auditors spectators and approvers of their Sentence quod Cancellarius ille deponeretur et deposuerunt eum in loco illâ—us instituerunt Rothomagensem Archiepiscopum qui nihil operari voluit in regimine regni nisi per voluntatem â—t assensum Sociorum suorum assignatorum per Consilium Baronum Scaccarii Hugh de Nuvant Bishop of Coventry in his Epistle de Dejectione Eliensis Episcopi Regis Cancellarii writes of him that by reason of his intollerable Tyranny and Oppression Per totam insulam a Laicis publiâ—e proclamaâ—ur Pereat qui perdere cuncta festinat opprimatur ne omnes opprimat and then thus relates the manner and grounds of his deprivarion Mane ergo habito Concilio cum omnibus fere Magnatibus Regni praesente Domino Johanne fratre Regis Rothomagenâ—i Eboracensi Archiepiscopis Episcopis et prusentibus Dunelmensi Londinensi Wintonensi Bathoniensi Ronensi Noâ—wiceâ—si Lincoâ—niensi Herefordensi Menevensi Coventrensi factoque Consilio coram omni populo totius Civitâ—tis praesenâ—â—ustuâ—aâ—is Dâ—mini Regis apprebantibus Consilio universorum statuitur ne talis de caeâ—ero in Regno Anglâ—ae aâ—mineâ—ur per quâ—m Ecclesia Dei ad ignominiam populus ad inopram erat redactus ut enâ—m caetera omiâ—tam ipse et ganeones sui totum regnum exhauserant nec viro baliheus nec foeminae monile remansâ—t nec annulus nobili nec quodlibaet preciosum etiam alicui Judaeo The saurum quoque Regis exaninaverat prorsus ut in omnibus scriniis vel sacellis nihil praeter claves de toto illo biennio posset inveniri They likewise made him take a solemn Oath to deliver up all the Kings Castles to them and to give pledges to perform it and banished him the realm Deinde praedicti Justitiarii et omnes Episcopi et Comites Barones Angliae in communi scripto mandaverunt Regi qualiter Cancellarius suus regnum Angliae the sauros suos destruxerat ot qualiter ipse per Commune Concilium regni ejectus est To which Gulielmus Nubâ—igensis subjoyns Tyranno igitur qui regnum turbaverat propulsato EPISCOPI OPTIMATES cum JOHANNE Londoniis congregati de regni ordinatione tractare caeperunt Et primo quidem ab omnibus Regis Richardi propter Christum pereginantis fidelitate jurata regni administrationem Rothomagensi Archiepiscopo DECRETO COMMUNI tradiderunt amotisque Ministris tyrannicis provinciarum regimen melius ordinari voluerant Quibus actis Anglia in cunctis finibus suis pacem recepit decenri sub novis caepit recteribus moderamine gubernari malis plurimis quae sub tyranno pullulaverant atque viguerant pariter cum ipso eliminatis A happy Publike change and Parliamentary reformation worthy our imitation In the year of our Lord 1193. Earl John conspiring with the French King to deprive king Richard his brother of his Crown kingdom and Dominions seising many of his Castles beyond the Seas profering the Emperour great â—ums of money not to release him being then his prisoner and endeavouring to get possession of the Realm of England Anno 1194. Venit in Angliam Adam de Sincto Edmundo clericus et familiaris Comitis Johannis miâ—sus ab eo in Angliam cum literis ad castella sua munienda contra fratrem suum Who coming to the lodging of Hubert Archbishop of Canterbury and boasting much of the prosperity of his Lord and what Castles the French King had delivered to him as he sate at dinner to the great ofâ—ence of the Archbishop and others thereupon after dinner Adam returning to his lodging in London Major Londoniarum injecit manus in eum tenuit caeâ—it omnia brevia sua in quibus mandata Comitis Johannis continebantur tradidit ea Cantuariensi Archiepiscopo Qui in crastino convocatis coram eo Episcopis Comitibus et Baronibus Regni ostendit eâ—s â—eras Comiâ—is â—ohannis earum â—enorem statim per Commune Concilium Regni definitum est quod Comes Johannes diâ—eâ—â—retur de omnibus tenementis suis in Anglia ut Castella sua obsiderentur for this his Treason factum est ita Eodem die Hubertus Cantuariensis Archiepiscopus Hugo Lincolniensis Richardus Londoniensis Gilbertus Roffensis Godefridus Wintoniensis Wigorniensis Herefordensis Episcopi Henricus Exoniensis electus Abbates et Clerici multi Cantuariensis dioeceseos convenerunt in capella Monachorum infirmorum apud Westmonasterium et sententiam anathematis tulerunt iâ— Comitem Johannim et in omnes fautores ejus et consiliarios qui pacem et regnum Regis Angliae turbaverunt vel turbarent nisi relicta hostilitate ad satisfactionem venirent After which they appointed what persons should besiege and reduce Earl Johns Castles who vigorously executed their commands King Richard soon after being enlarged returning into England summoned a Great Parliamentary Council at Nottingham the proceedings whereof against Earl John and others are thus recorded by Roger de Hoveden Tricesima die mensis Martu â—eria quarta Richardus Rex Angliae celebravit primâ—m CONCILII SUI diem apud Nâ—tingham cui interfuerunt Alienor regina mater ejus et Hubertus Cantuariensis Archiepiscopus qui in dextris Regis sedebat in Concilio ilio et Gaufridus Eboracensis Archiepiscopus qui a sinistris ejus sedebat et Hugo Dunelmensis et Hugo Lincolniensis et Wâ—llielmus Eliensis regis Cancellarius et Willielmus Herefordensis Henrious Wigorniensis et Henricus Exoniensis et Johannes Candidae Casae Episcopi Et Comes David frater Regis Seotiae Hamelinus Comes de Warenna Ranulfus Comes Cestriae et Willielmus Comes de Ferreres Willielmus Comes de Salisberia Rogerus Bigot Eodem die Rex disseisivit Gyrardum de Canvilla de Castello Vicecomitatu Lincolniensi et Hugonem Bardulf de Vicecomitatu Eboracensis sciriae et de Castello Eboraci et de Scardeburâ— de
custodia de Westmerland for their disloyalty towards him et omnia supradicta disposuit venditioni c. Tricesima prima die mensis Maii Rex Angliae celebravit secundum diem Concilii â—ui in quo ipse petiit sibi fieri judicium de Comite Iohanne fratre suo quod contra fidelitatem quam ei juraveraâ— Castella sua occupaverat et tertas suas transmarinas et cismarinas destâ—uxeraâ— et foedus cum inimico suo Rege Franciae contra eum inierat Similiter de Hugone de Nunant Coventrensi Episcopo SIBI FIERI JUDICIUM postulavit qui secreti sui conscium eum reliquerat et Regi Franciae et Comiti Johanni inimicis suis adhaeserat omne malum in perniciem regni sui machinans ET JUDICATUM EST quod Comes Johannes et Episcopus Coventrensis citarentur si intra quadraginta dies non venerint nec juri steterint JUDICAVERUNT COMITEM JOHANNEM DEMERUISSE REGNUM Episcopum Coventrensem subjacere judicio Episcoporum in eo quod ipse Episcopus eraâ— et JVDICIO LAICORVM in eo quod ipse Vicecomes Regis extiterat Secunda die mensis Aprilis Sabbato celebravit diem quarâ—um ultimum Concilii sui in quo omnes tam Cleriâ—i quam Laici qui volebant sibi conqueri de Archiepisc Eboracensi fecerunt queremonias multas de rapinis et injustis exactionibus sed Archiepiscopus Eboracensis nullum eis dedit responsum Deinde per consilium et machinaâ—ionem Cancellarii ut dicitur Girardus de Camvilla fuit retatus de receptatione praedonum qui rapuerunt bona Mercatorâ—m euntium ad nundinas de Stanford et ab eo recesserunt ad rapinam illam faciendam et de rapina illa redierunt ad eum Praeterea appellaverunt eum DE LAESIONE REGIAE MAJESTATIS in eo quod ipse ad vocationem Juâ—titiarium Regis venire noluit nec juri stare de praedicta receptatione rapâ—orum neque eoâ— ad justitiam regis producere Sed respondit Se esse hominem Comitis Johannis et velle in curia sua juristare Praeâ—erea appellaverunt eum quod ipse fuit â—n viet adjutorio cum Comite Johanne et aliis inimicis Regis ad Castella Regis de Notingham et de Tikehill capienda Girardus vero de Camvilla negavit omnia quae objiciebantur ei ab illis et illi dederunt vadium de prosequendo et Girardus dedit vadium defendendo se per unum de liberis hominibus suis A clear evidence of the form of proceedings in our Parliamentary Councils in that age against Traytors and other Offenders there impeached accused in criminal causes and of the Lords antient undisputable right to give judgment therein both in case of Peers as Earl John the Bishop of Chichester and Archbishop of York then were and in case of Commoners Girard de Camvil as I take it being then no Peer or Baron of this Realm but only a Servant to Earl John though afterwards in King Johns reign I finde him numbred amongst the Barons who were Witnesses to the homage and Oath of Allegiance made by William King of Scots to King John Earl John soon afâ—er coming to his Brother King Richard caâ—â— himself down at his feet and with many tears confessing his folly ill counsel and practices against him craved his pardon whereupon he received him into his favour and presently restored his lands which he had seised into his hands as forfeited by the Parliaments sentence denounced against him for his treason The Pope in the year 1208. having interdicted the whole Realm of England King John thereupon fearing that he would likewise excommunicate him and absolve his Nobles from their Allegiance to him to preserve his royalties sent a Company of armed Soldiers to all the Potent Nobles of the Realm and especially to those he suspected exacting Hostages from them that so if they should afterwards be absolved from their allegiance he might reduce them to due obedience Many submitted to the Kings commands and delivered some their Sons others their Nephews others their Kinsmen for hostages to the Messengers Who at last coming to William de Brause a Noble man and requiring pledges from him as they had done from others found a repulse For Matilda his wife out of a womanish procacity taking the word out of her husbands mouth answered the Messengers I will not deliver my children into the hands of your Lord King John because he most dishonourably slew his Nephew Arthur whom he ought to have honourably kept and preserved Which her Husband hearing rebuked her saying That she had spoken like one of the foolish women against our Lord the King for if I have offended him in any thing I am and will be ready to answer my Lord and that without hostages SECUNDUM JUDICIVM CVRIAE SUAE ET BARONUM PARIUM MEORUM assignato die loco The Barons in that age being to be judged and tried only by their Peers and that in the Kings Court of Parliament for any offences against the King not by the Commons or any inferiour persons In the year of Christ 1233. King Henry the 3. removing most of his English great Officers and Councellors from his Court and placing Poicâ—o â—es and Aliens in their room by whole Counsel he was wholly swâ—yed misguided especially by Peter de Rivallis qui homines Angliae naturales Nobiles totis viribus opprimebant proditores eos vocabant quos etiam de proditions apud Regem â—ccusabant â—neâ—aurorum â—eâ—iam suorum Rexeis custodias cum â—egibus patâ—ii judiciiâ— commisit Quid plura Judicia commitâ—ntur injustis leges exlegibus justicia injâ—riosis Et eum NOBILES de regno in regno de oppressionibus sibi irrogatis coram Rege causam deponerent Petro Episcopo impedience non fuit qui eis justitiam exhiberet c. Cumque his consimâ—â—ibus injuriis RICHARDUS COMES regni MARESCHALLUS viderâ—t tam NOBILES quam igâ—bbiles opâ—rimere iâ—ra regni penitus deponere zelo justitiae provocatus associatis sibi quibusdam Magnatibus ad Regem audacter accessit increpans eum audientibus multis quod per pravum Consilium advocarat extraneos Piâ—taviense no pressionem râ—gni hominum suorum de regno naturaliâ—m LEGUM PARITER AC LIBERTATUM Unde Regem humiliter â—ogabat uâ— tales excessus corrigere festinarer per quos Coronae suae regni sui subversio imminebaâ— Affirmabat insuper quod si hoc emendarc distugerer IPSE ET CAETERI DE REGNO MAGNATES tamdiu se ab ipsius consilio subtraherent quamdiu alienigenarum consortio frueretur Ad haec autem respondens Petrus Wintoniensis Episcopus dixit quod bene licuit Domino Regi extraneos quoscunque vellet vocare ad defensionem Regni sui Coronae etiam tot tales qui possent homines suos superbos rebelles ad debitum compellere famulatum
Peers by Roger Moâ—timers power and procurement Anno 18 E. 2. petitioned that he might be restored to his Fathers blood lands and goods considering the said Earl was unduly put to death being not tried by his Peers according to the Law the grand Charter But for that the said Attainder was afterwards confirmed by Parliament he amended his Petition and prayed in such wise to be restored of the Kings meer grace Whereupon he was restored to all his Fathers lands and to Arundel Castle saving to the King all such lands as were given to this Earl by King Ed. 1. whereupon he did homage to the King in Parliament and had livery of the king of all his lands per assensum of the Lords as iâ— recorded in rot Fin. An. 3 E. 3. m. 14. Claus 4 E. 3. in dorso and Claus 5 E. 3. part 1. m. 2 3. In this Parliament of 4 E. 3. n. 6. The Lords claim to be JUDGES OF THEIR PEERS IN THAT FUTURE PARLIAMENTS in cases of Treason c. And n. 1. Roger Mortimer Ear of March who had formerly condemned and beheaded other Peers without any legal trial by their Peers and deposed murdered King Edward the 2. was by divine retaliation arrested at the Parliament held at Nottingham by the Kings command then sent Prisoner to the Tower impeached attainted condemned and executed himself as a Traytor without any hearing or personal defence BY THE LORDS AND PEERS AS JUDGES OF PARLIAMENT by the Kings assent The Articles of his Treasons Felonies and other misdemeanors entre in that Parliament Roll scarce legible now were read before the Lords against him and other of his companions The Articles against him are thus related by Walsingham Causae quae imponebantur eidem proue accepimus istae fuere writes Walsingham Prima causa quod fuit consentiers morâ— Regis Edwardi in castro de Berkley Secundo impositum ei fuit quod ipse impedivit honorem Regis et regni apud Stannyparke ubi Scoti fugerunt qui capi intersici potuerunt Tertio quod ipse accepit 20 millia mercarum a Scotis illas tunc permisit evadere turpem pacem postmodum inter Scotos et Regem ju venem sieri procuravit et super hoc Chartam Regis sieri fecit eisdem Et etiam illud vile matrimonium contractum inter sororem Regis et David filium Roberti de Brus consummari consuluit procuravit Quarto quod male consumpsit totam pecuniam in the sarris patris hujus Regis et Domini Hugonis de Spencer inventum et omnia bona regni postquam Angliam regina intravit suae dispositioni subjecit ita quod ipse Regina abundabant Dominus Rex egebat Quinto quod appropriavit sibi custodias et maritagia nobiliora per totam Angliam Et quod fuit malus Consiliarius Regis Reginae matris et nimis secretus cum ea ut dâ— aliis taceamus These with other Articles mentioned in the Parliament Roll being read thereupon Les ditz COUNTZ BARONS ET PIERS COME JUGGES DU PARLIAMENT as the Parliament Roll it self recites per assent du Roy in mesme le Parliament agarderent et ajugerent que le dit Roger COME TRAYTOUR ET ENEMY du ROY et du ROYALME fuist trâ—yne et pendis Upon which sentence without being called to answer the Earl Marshal by the Kings and Lords command assisted with the Mayor and Sherifs of London and the Constable of the Tower executed him the Thursday next after the first day of the Parliament Ubi mortis excepit sententiam trastus suspensus apud Elmes super communi furca latronum as Walsingham relates The Articles of this Regicides impeachment being very memorable and somewhat larger than those in Walsingham scarce legible in the Parliament Roll of 4 E. 3. I shall here present you with together with the manner of his apprehension and judgement out of Henry de Knyghton King Edward perceiving the great malice and cruelty of Queen Isabel his Mother and Mortymer that they occasioned many seditions favoured the Scots to the great dishonour of the King and Kingdom destroyed the King her Husband Et quanta mala eorum consilio auxilio exercebantur in regno qu â—ntaque mala opera eorum somento velâ—bantur by the secret advice of his friends resolved to separate them from one another to prevent greater mischiefs Nam in tantum invalescebant in terra quod totum regnum in periclitando labi videbatur Deinde Rex tenuit CONCILILM SUUM apud Notyngham in quindena Michaelis cum pene omnibus Magnatibus regni In quo Rex saniori consilio de eorum fraude et malitia saluâ—râ—us edoctus vidensque periculum tam praeteritum quam in posterum â—am in praesenti per dictos Isabellam et le Mortymer evidenter imminens graviter in corde condolens suscepit sicque die Veneris in crastino sancti Lucae Rex cum electa comitiva in obscuro noctis perrâ—xit per quendam viam subterraneam de villa Notynghamiae usque in castellum et venit ad cameram matris suae Isabelâ—ae et invenit ibi prope eam in alia camera Rogerum de Mortymer et Episcopum Lincolniensem Henricum Et statim Rex jussit Rogerum apprehendi et in securam custodiam usque in crastinum poni In crastino fecit apprehendere omnes suos adhaerentes perâ— tam villam dispersos Et statim misit omnes Londonias videlicet le Mortymer Et duos filios ejus scilicet Galfridum Edmundum milises et Dominum Oliverum de Byngam Dominum Simonem de Berforde Et in captione Rogeri Mortymere occisus est Dominus Hugo de Tryplyngton miles et senescallus familiae regis per dictum Rogerum Mortymer in ingressu regis in camera eorum Isabella mater regis ad udicata est perdere omnes terras suas et cum difficultate evasâ—t dampnationem ad mortem eo quod er at mater regis et ob reverentiam regis dilata est sententia Et ordinatum est singulis annis caperet de cista domini regis ad sustentationem suam tria millia mercarum et maneâ—et in uno certo loco ubi rex pro ea disponere vellet Magnates regui imposuerunt contra Rogerum Mortymer Articulos sequentes Primerment que parla on ordenee fuist al parliment de Londrez proscheyne apres la coronnement nostre seignour le roy que quatres Eveskes quatre Contes et vj. Barones dustent estre pres du roy pour la conseyller issint que tote foitz quatre y fuissent Cest assavoir une Eveske une Conte et dieux Barons a meynez que nule grosse bosoigne soit faite sanz lour assent que chescuâ—e respondist dez ces fetz pur son temps la dit Roger nyent eyant regarde al dit assent accrocha a luy real pouare le governement
Vice-Chamberlain before the King and Lords of divers offences against the King who taking the accusation to be good because of the Bishops order and that he was of the kingâ— linage pardoned the said Bishop all his misprisions done against his person and reconciled the Bishop and Sir Thomas one to another And n. 30 31. all the Lords Temporal whose names are there recorded being 25. in number by assent of the King declared and ADJUDGED Thomas Holland late Earl of Kent John Holland late Earl of Huntingdon John Mountague late Earl of Salisbury Thomas le Despencer Sir Ralph Lumley Knight and divers others who were for their Rebellions and Treasons in levying war against the King taken slain or beheaded by certain of the Kings Subjects to be Traytors and that they should forfeit all such Lands as they had in fee the 5. of January the first year of the King or at any time after with all their goods and chattels The Record is Toutz les Seigneurs temporelz esteantz en Parlement per ussent du Roy declarerent et adjuggerent les ditz Thomas c. pur Trayteurs pur la leve de Guerre encountre lour Seignior le Roy nient obstant qils furent mortz sur le dâ—t leve de guerre sanz process de ley Lo here the Lords alone by the Kings assent declare and adjudge what is Treason both in the case of Lords and Commoners too and â—taint and give Judgement against them both without the Commons after their deaths without legal trial In the Parliament of 5 H. 4. rot Parl. n. 11 12 13 14. On Friday the 18 of February the Earl of Northumberland came before the King Lords and Commons in Parliament and by his Petition to the King acknowledged that he had done against his Lawes and allegeance and especially for gathering power giving of Liveries for which he put himself upon the Kings grace and prayed pardon the rather for that upon the Kings Letters he yielded himself and came to the King at York whereas he might have kept himself away Which Petition by the Kings command was delivered to the Justices to be examined and to have their counsel and advice therein Whereupon the LORDS made a Protestation que le Juggement appentient a â—ux tout soulement THAT THE JUDGEMENT APPERTAINED ONLY TO THEM And after the said Petition being read and considered before the King and the said Lords as Peers of Parliament aus queux teils juggemeâ—t apperteignent de deoit to whom such Iudgements appertained of right having had by the Kings command competent deliberation thereupon and having also heard and considered as well the Statute made in the 25. year of King Edward the Kings Grand father that now is concerning the Declaration of Treason as the Statutes of Liveries made in this Kings reign ADJUDGED That that which was done by the said Earl contained within his Petition was neither Treason nor Felony but Trespas for which the said Earl ought to make fine and ransom at the will of the King Whereupon the said Earl most humbly thanked our Lord the King and the said Lords his Peers of Parliament for their rightfull judgement and the Commoners for their good affections and dâ—ligence used and shewen in this behalf And the said Earl further prayed the King that in assurance of these matters to remove all jealousies and evil suspitions that he might be sworn a new in the presence of the King and of the Lords and Commons in Parliament and the said Earl took an Oath upon the Crosier of the Archbishop of Canterbury to be a faithfull and loyal liege to our Lord the King the Prince his Son and to the heirs of his body inheritable to the Crown according to the Laws of England Whereupon the king out of his grace pardoned him his fine and ransom for the trespass aforesaid After which num 17. the Lords Spiritual and Temporal humbly thanked the King sitting in his royal Throne in the white Chamber for his grace and pardon to the said Earl of his fine and ransom and likewise the Commons thankâ— the Lords Spiritual and Temporal for the good and just Iudgement they had given as Peers of Parliament to the said Earl From this memorable Record I shall observe First that though this Declaration of this Earls case was made by his Petition in the presence of the King Lords and Commons in Parliament according to the Statute of 25 E. 3. yet the Lords only by Protestation in presence of the King and Commons claimed to be the sole Iudges of it as Peers of Parliament and belonging to them OF RIGHT Secondly That this claim of theirs in this case was acknowledged and submitted to both by the King and Commons and thereupon the Lords only after serious consideration of the case and Statutes whereon it depended gave the definitive sentence and judgement in this case that it was neither Treason nor Felony but Trespass only c. Thirdly That the Earl thanked the King only for his grace the Lords for their just Iudgement and the Commons only for their good hearts and diligence having no share in the judgement though given by the Lords both in the Kings and their presence and that the Commons themselves returned special thanks to the Lords Spiritual and Temporal in Parliament for their good and just judgement Fourthly That this judgement of the Lordr only was final and conclusive both to the King and Commons who acquiesced in it In the Parliament of 2 H. 5. rot Parl. num 13 14. Thomas Mountague Earl of Salisbury son and heir of John Mountague Earl of Salisbury exhibited his petition in Parliament to reverse a judgement given against his said father in the Parliament at Westminster in the second year of King Henry the fourth rot Parl. n. 30 31. forecited wherein amongst others he was attainted of Treason by judgement of all the Temporal Lords in Parliament and thereupon he exhibited certain reversals of Judgements given in Parliament as making on his behalf to the Lords consideration reversed for some errors assigned in those judgements to wit one judgement given against Thomas heretofore Earl of Lancaster before King Edward the second at Pomfract the Monday before the feast of the Annunciation in the fifteenth year of his reign and another Judgement against Roger de Mortymer late Earl of March in the Parliament of King Edward the third the Monday after the feast of St. Katherine in the fourth year of his reign at Westminster Which Judgements being distinctly and openly readâ— and fully understood It seemed to the King and Lords that the case of the death and execution of the said John late Earl of Sarum and of the judgement aforesaid against him given is not nor was like to the case of the executing of the said Th. heretofore Earl of Lancaster nor to the case of the putting to death of Roger Earl of March nor to any judgement given against
committed to the Tower of London The 7 day of February the Commons by William Trussel their Speaker brought up and presented to the King and Lords in the Lords House a Bill against the said Duke containing an impeachment of several High Treasons committed by him against the King requiring of the Lords all their Articles therein to be enacted with prosecution therein The 9. of March they exhibited new articles of complaint against the Duke comprising sundry misdemeanors against the king and other persons which they require might be enrolled and that the Duke might answer to them The 9. of March the Duke was brought by the kings writ from the Tower into the Parliament Chamber before the King and Lords where the Articles were rehearsed to him who desired Copies of them which was granted And he for more ready answer was committed to certain Esquires to be kept in the Tower within the kings palace The 14 of March the Duke appeared before the K. Lords where on his knees he denied as untrue the 8 Articles of Treason and the same offered to prove as the King shall appoint The Chief Justice thereupon by the kings command asked this Question of the Lords what advise they would give the King what is to do further in this matter which advise was deferred till Monday then next following whereon nothing was done in that matter On Tuesday the 17 of March the king sent for all the Lords Spiritual and Temporal then being in Town being 24 in all into his Inner Chamber within his Palace of Westminster where when they were all assembled he then sent for the Duke thither who coming into the Kings presence kneeled down and continued kneeling till the Chancellor of England had delivered the kings command to him and demanded of him what he said to the Commons Articles not having put himself upon his Peerage Whereupon the Duke denied all the Articles touching the kings Person and state of the Realm as false and scandalous And so not departing from his said Answers submitted himself to the kings Rule and Governance without putting himself upon his Peerage Where thus the Chancellor told him That as touching the great and horrible crimes contained in the first Bill the king holdeth him neither declared nor charged And as touching the second Bill containing misprisions which are not criminal the king by force of his submission by his own advice and not reporting him to the advice of the Lords nor by way of judgement for he is not in place of judgement putteth you to his Rule and Governance that before the first of May next coming he should absent himself out of the kingdom of England and all other his Dominions in France or elsewhere and that he nor no man for him should shew or wait any malice nor hate to any person of what degree soever of the Commons in the Parliament in no manner of wise for any thing done to him in this Parliament or elsewhere And forthwith Viscount Beaumont in behalf of the said LORDS both spiritual and Temporal and by their advice assent and desire said and declared to the Kings Highness That this that so was decreed and done by his Excellency concerning the person of the said Duke proceeded not by their advice and Counsels but was done by the Kings own demeanoir and rule Wherefore they besought the King that this their saying might be enacted in the Parliament Roll for their more declaration hereafter with this protestation that it should not be nor turn in prejudice nor derogation of them their heirs ne of their successors in time coming but that they may have and enjoy their liberty as they or any of their Ancestors and Predecessors had and enjoyed before this time This is the sum of this large Record which makes nothing to the purpose for which Sir Edward Cook cites it in his 4 Institutes p. 25. That it is ERROR when both Houses joyn not in the Judgement For first here is nothing but an impeachment only by the Commons of a Peer who ought to be tryed judged only by his Peers not by Commoners Secondly there was no judgement given in Parliament in this case but only a private Award made by the King out of the Parliament House in his own Chamber in presence of the Lords Thirdly the Lords entred a special protestation against it as not made by their advice or consent Fourthly they enter a special claim in the Parliament Roll for the preservation of their Right and Freedom of Peerage for hereafter both of being tried and judged only by their Peers in Parliament and so an express resolution that the Peers in Parliament are and ought to be Judges especially of Peers not the Commons These Records of these cited at large lest Sir Edward Cooks brief quotation and mis-recital of them should deceive the credulous or ignorant Readers In the Parliament of 31 H. 6. rot Parl. n. 28. Thomas Earl of Devonshire was accused of Treason tried for and acquitted thereof by his Peers before Humfrey Duke of Buckingham Steward of England for the time being And for that the Duke of York thought the loyalty of the said Earl to be touched thereupon the said Earl protesting his Loyalty referred himself to further Trial as a Knight should doe upon which declaration THE LORDS in Parliament acquitted him as a loyal Subject Edward Duke of York with the Earls of March Warwick Salisbury Rutland John Lord Clinton and others were impeached and attainted by Judgement of the Lords in Parliament of High Treason for raising forces and levying war against King Henry the 6. and afterwards attainted by Bill in the Parliament of 38 H. 6. n. 7. to 26. In the Paâ—liamenr of 1 E. 4. n. 17. to 71. The Duke of Exeter Viscount Beamont the Earls of Pembroke Wilts and Devonshire the Lords Nevil Roos Gray Dacre Hungerford and others were first attainted and condemned of High Treason by THE LORDS and after by Bill for levying warr against King Edward the fourth The Duke of Somerset and others in the Parliament of 4 E. 4. n. 28. to 39. and John Vere Earl of Oxford with others in the Parliament of 14 E. 4. n. 34. to 41. were in the same manner for the same offence attainted of High Treason and their Lands forfeited To pretermit all other Attainders of this Nature in cases of High Treason in the reigns of Henry the 8. Edward the 6. Queen Mary Queen Elizabeth and King James both in our English and Irish Parliaments formerly touched p. 196 197 198 199. In the Parliaments of 18 21 Jacobi Sir Francis Bacon Viscount St. Alban Lord Chancellor of England and the Earl of Middlesex Lord Treasurer of England were impeached accused convicted of Bribery Corruption and other misdemeanors removed from their places fined Middlesex 50000 l. imprisoned made uncapable of any Office and thus censured by Iudgement of the Lords house as the Journals of those Parliaments
and Law of the Land And this was the main reason of this their Protestation as the close of it shews to prevent such dangerous presidents for the future Upon which ground the Judgements they then gave against Roger Mortymer John Mautravers were reversed in the Parliament of 21 E. 3. n. 65.28 E. 3. n. 8. to 16. Lastly This Protestation did not foreclose the Lords in this or future Parliaments to give Judgement against Commoners in other cases of Felony and Treason even without the Commons which I shall prove by some other instances In the Parliament of 4 Ed. 3. n. 16. Sir Thomas Berkeley Knight was arraigned and tried by a Jury for Treason as being guilty of the death of King Edward the 2. committed to his custody who pleaded not guilty and was tried in full Parliament before the King by a Jury and by them acquitted Which case being rare and memorable I shall here insert the whole Record Thomas de Berkele Miles venit coram Domino Rege in pleno Parliamento suo praedicto et allocutus hoc Quod eum Dominus Edwardus nuper Rex Angliae pater Domini Regis nunc in custodia ipsius Thomae et cujusdam Johanuis Mautravors nuper extitit collatus ad salvo custodiendum in castro ipsius Thomae apud Berkele in Com. Gloucestriae et in eodem castro in custodia ipsorum Thomae Johannis murdratus extitit et interfectus qualiter se velit de morte ipsius Regis acquietare Dicit quod nunquam fuit consentiens auxilians seu procurans ad mortem suam nec unquam scivit de morte sua usquam in praesenti Parliamento isto et de hoc paratus est acquietare se prout CURIA REGIS consideraverit Et super hoc quaefitus est ab eo ex quo ipse est Dominus castri praedicti et idem Dominus Rex in custodia ipsorum Thomae Johannis extitit liberatus ad salvo custodiend ipsi custodiam ipsius Regis recepeâ—unt et acceptarunt quali er se excusare possit quin de morte ipsius Regis respondere debeat Et praedictus Thomas dicit quod verum est quod ipse est Dominus Castri praedicti et quod ipse simul cum Johanne Mautravers custodiam ipsius Regis recepit ad salvo custodiend ut praedictum est Sed dicit quod eo tempore quo dicitur ipsum Dominum Regem esse murdratum et interfectum fuit ipse taliter tanta infirmitate apud Bradeley extra Castrum praedictum detentus quod ei currebat memoriae Et super hoc dictum est ei quod ex quo cognovit quod ipse simul cum dicto Johanne custodiam ipsius Domini Regis obtinuit ut praedictum est et ipse custodes et ministros sub se posuit ad custodiam de eo faciendam si per aliquam infirmitatem excusari posset quin respondere debuit in hac parte Et praedictus Thomas dicit quod ipse posuit sub se tales custodes et ministros in castro praedicto pro custodia facienda a quibus ipse se confidebat ut de seipso qui custodiam ipsius Regis simul cum praedicto Johanne Mautravers inde habuerunt unde dicit quod ipse de morte ipsius Domini Regis auxilio assensu seu procuratione mortis suae in nullo est inde culpabilis Et de hoc de bono et malo ponit se suâ—er patriam Ideo venerint inde Juratores coram Domino Rege in Parliamento suo apud Westm in Octabis Sancti Hilarii proxime futuri c. Ad quam diem venit praedictus Thomas coram Domino Rege in pleno Parliamento ac similiter Juratores scil Johannes Darci Iohannes de Wisham Willielmus Trussell Rogerus de Swyneuerton Constantius de Morâ—imer Iohannes de sancto Phileberto Richardus de Rivers Petrus Hussey Iohannis de Dynton Richardus de la Rivere Robertus Dabenhate Richardus de Corveyes omnes milites Qui dicunt super Sacramentum suum quod praedictus Thomas de Berkelie in nullo est culpabilis praedicti Domini Edwardi Regis Patris Domini Regis nunc nec de assensu auxilio seu procuratione mortis ejusdem Et dicunt quod tempore mortis ejusdem Domini Edwardi Regis patris Domini Regis nunc fuit ipse tali infirmitate gravatus apud Bradely extra castrum suum praedictum quod de viâ—a ejus desperabatur Ideo idem Thomas inde quietus Juratores quaesiti si idem Thomas unquam substraxit se occasione praedicta dicunt quod non Et quia idem Thomas posuit custodes et ministros sub se scil Thomam de Gourney et Willielmum de Ocle ad custodiam de ipso Domino Rege faciendam per quod idem Dominus Rex extitit murdratus et interfectus datus est ei dies coram Domino Rege nunc in proximo Parliamento suo de audiendo JUDICIO SUO c. Et praedictus Thomas de Berkelei interim committitur Radulpho de Nevill Mareschallo hospitii Domini Regis c. It is observable that though Edward the 2. was murdered after he was deposed by this Parliament yet he is still â—â—lled a King in this Indictment and record and his murder adjudged Treason in those who did it After his acquittal he put in Mainpernors to appear in the next Parliament Where appearing he and his Mainpernors were discharged but yet himself ordered to appear again the ensuing Parliament as appears by the Parliament Roll of 5 E. 3. n. 16. William Thorp Chief Justice of the Kings Bench and one of the Justices of Assize in the County of Lincoln in the 23 year of Ed. the 3. against his Oath took 10 l. of Richard Saltley 20 l. of Hildebrand of Beresward 40 l. of Gilbert Holliland 40 l. and 10 l. of Ro. Daldorby to stay an Exigent upon an Indictment of diverse felonies that should have issued against them Whereupon he was indicted before the Earls of Arundel Warwick and Huntingdon the Lord Gray and Lord Burghers Anno 24 E. 3. to whom the King by Commission referred the examination of the businesse before whom he could not deny but confessed the Bribery Ideo consideratum est per dictos Justiciarios assignatos ad judicandum secundum voluntatem Regis et secundum regale posse suum quod quia praedictus Willielmus Thorpâ— qui sacramentum Domini Regis quod erga populum suum habuit custodiendum fregit malitiose false et rebelliter in quantum in ipso fuit ex causis supradictis ipsum Willielmum expresse cognitis ideo SUSPENDATUR et quod omnia terra et tenementa bona et catalla sua remaneant forisfacta The King by a writ under the privy Seal stayed his execution and sent him Prisoner to the Tower In the Parliament of 25 Ed. 3. nu 10. command was given that the record of this Judgement
it was shewed to the said John Lord of Gomynes by the said Steward how the said LORDS had assembled and considered of his answer and THAT IT SEEMED TO THE LORDS sitting in full Parliament that without duresse or default of victuals or other necessaries for the defence of the Town Castle of Arde and without the Kings Command he had evilly delivered and surrendred them to the Kings Enemies by his own default against all appearance of right or reason contrary to his undertaking safely to keep the same Wherefore THE LORDS aforesaid here in full Parlia-ADJUDGE YOU TO DEATH And because you are a Gentleman and a Baronet and have served the Kings Grandfather in his wars and are no Liege man of our Lord the King you shall be beheaded without having OTHER JUDGEMENT And because that our Lord the King is not yet informed of the manner of this Judgement the execution thereof shall be put in respite until our Lord the King be informed thereof Loe here two express Judgements given in Parliament by the LORDS alone without King or Commons in case of Treason even against Commoners themselves And an express acknowledgement by the Commons of the Lords right to award Iudgement in these cases without the King or them than which a fuller and clearer proof cannot be desired In the Parliament of 2 R. 2. n. 34 35. Sir Robert Howard knight was committed prisoner to the Tower upon the complaint of the Lady Nevil by the Lords in Parliament for a forcible imprisonment of her daughter to which he was accessory that she might not prosecute a divorce in Court Christian In the 50 year of King Edward the 3. in the Parliament called the good Parliament Sir John Anneslee Knight accused Thomas Katrington Esquire of Treason for selling the Castle of St. Saviour in the Isle of Constantine to the French for an inestimable sum of money cum nec defensio sibi nec victualia defuissent whereupon he was taken and imprisoned but in King Edwards sickness enlarged by the Lord Latymers means as was reported In the Parliament held at London Anno 1380. the 3. of R n. 2. he was again accused by Sir John Anneslee and there resolved that being a Treason done beyond Sea not in England it ought to be tried by duel before the Constable or Marshal of the Realm Whereupon a day of battel was appointed in the Court at Westminster the 7. of June and lists set up On which day in the morning they fought the battel in the presence of the KING Nobles and Commons of the Realm which Walsingham at large describes till both of them were tyred and lay tumbling on the ground where the Esquire got upon the Knight as if he had conquered him Others said the Knight would rise again and vanquish the Esquire Interea Rex pacem clamari prâ—cepit et militem erigâ— The Knight refused to be lifted up as the Esquire was desiring he might be laid upon him again for he was well and would gain the victory if he were laid upon him again When he could not obtain his request being lifted up he went chearfully to the King without help when as the Esquire could neither stand nor go but as two held him up and thereupon was set in a chair to rest himself The Knight when he came before the King rogavis Eum et Proceres ut sibi illam concederunt gratiam ut itâ—rum in loco quo prius posset reponi et armiger super eum Rex vero et Proceres cum vidissent miliâ—em tam animose â—am vivide bellum repetere et insuper magnam summam auri offerre publice ut id posset effici decreverunt eum iterum reponendum armigerum super eum modo universaliter servato quo â—acuerant ante prostrati But the Esquire in the mean time in a swoun fell out of the chair as dead between the hands of those who stood by him Whereupon many running to him chafed him with wine and water but could not recover him till they pulled off his arms Quod factum et Militem victorem probavit Arm gerum esse victum After some space the Esquire reviving opened his eyes and began to lift up his head and to look terribly on every one that stood round about him which the knight being informed of went presently to him in his arms which he never put off and speaking to him et Proditorem et falsum appellans quaerit si iterum audeat Duellum repetere Ille verò nec sensum nec spiritum habente respondendi â—lamatum est pugnam finitam et ut quisque ad propria remearet The Squire was carried to his bed senceless and died the next morning Here we have a Duel ordered by Parliament and the King and Lords Iudges in it not the Commons for a Treason done beyond the Seas not triable here by Law In the Parliament of 4 R. 2. n. 17. to 26. Sir Ralph Ferrers being arested for suspition of Treason on the borders of Scotland was brought into the Parliament before the Lords to answer the same where divers Letters under his hand and Seal as was pretended were produced and read against him sent to the Lord Admiral of France and other French Officers informing them that he in the behalf of the French had made a League and alliance with the Scots and desiring them to make payment of the monies promised him and of his own fee and inviting the French to invade England c. with discoveries of the Kings designs against the French and answers to them Sir Ralph desired Counsel in this case which was denied him These Letters were found by a beggar besides London divers of his familiars were called into the Parliament house before the Lords and likewise the beggar and the whole matter strictly examined The Letters sent by Sir Ralph to the parties beyond Seas and certain Letters sent by them in answer to his were all sealed together and all of one hand and the Seal larger than the Seal of the said Sir Ralph whereupon they seemed to be forged by some of his Enemies for his overthrow himself being once or twice urged to answer Whether the Letters were his or no answered that he did not remember they were his own Letters and that he was ready to approve as the Lords should think fit having formerly offered combate with any that would justifie it from which he was put In conclusion the Lords thought him to be innocent whereupon he was delivered to 4. Earls and 2. Lords who became pledges body for body to answer when he should be called between that and the next Parliament and so he was inlarged The Letters and his Seal were delivered to Sir John Cavendish Chief Justice of England and the beggar being thought privy to this falshood was committed to prison by THE LORDS In the Parliament of 5 R. 2. n. 44 45. Richard Clindow Esquire exhibited a Bill to
against Sir Michael de la Pool Knight Lord Chancellor of England first before the Commons and afterward before the Lords which was granted Then he accused him BEFORE THE LORDS for bribery and injustice and that he entered into a bond of 10 l. to Iohn Ottard a Clerk to the said Chancellor which he was to give for his good success in the business in part of payment whereof he brought Herring and Sturgeon to Ottard and yet was delayed and could have no justice at the Chancellors hands Upon hearing the cause and examining witnesses upon Oath before THE LORDS the Chancellor was cleared The Chancellor thereupon required reparation for so great a slander the Lords being then troubled with other weighty matters let the Fishmonger to Bail and referred the matter to be ordered by the Judges who upon hearing the whole matter condemned Cavendish in three thousand marks for his slanderous complaint against the said Chancellor and adjudged him to prison till he had paid the same to the Chancellor and made fine and ransom to the King also which the Lords confirmed In the Parliament of 8 R. 2. n. 12. Walter Sybell of London was arrested and brought into the Parliament before the Lords at the sute of Robert de Veer Earl of Oxford for slandering him to the Duke of Lancaster and other Nobles for maintenance Walter denied not but that he said that certain there named recovered against him the said Walter and that by maintenance of the said Earl as he thought The Earl there present protested himself to be innocent and put himself upon the trial Walter thereupon was committed to Prison by the Lords and the next day he submitted himself and desired the Lords to be a mean for him saying he could not accuse him whereupon THE LORDS CONVICTED and FINED HIM FIVE HUNDRED MARKS TO THE SAID EARL for the which and for his fine and ransom to the King he was committed to prison BY THE LORDS A direct case in point By these two last Presidents of the Lords â—ining and imprisoning Cavendish and Syber two Commoners in Parliament for their standers and false accusacions only of two particular Peers and Members of their house it is most apparent the Lords now may most justly not only imprison but likewise fine both Lilburn and Overion for their most scandalous Libels against all the Members just Privileges Judicatory and Authority of the whole House of Peers which they have contemned vilisied oppugned and libelled against in the highest degree and most scurrillously abused reviled in sundry seditious Pamphlets to incite both the Army and whole Commonalty against them In the Parliament of 11 R. 2. the Duke of Glocester and other Lords came to London with great forces to secure themselves and remove the kings ill Counsellors and bring them to judgement whereupon the King for fear securing himself in the Tower of London and refusing to come to them at Westminster contrary to his faithfull promise the day before they sent him this threatning Message nisi venire maturaret juxta condictum quod eligerent alium sibi Regem qui vellet et deberet obtemperare consiliis Dominorum Wherewith being terrified he came unto them the next day Cui dixerunt PROCERES pro honore suo regni commodo oporterâ—â— ut Proditores susurrones adulatores et male fici detractores juratores à suo Palatio et Comitive etiam eliminarentur Whereupon they banished sundry Lords Bishops Clergy-men Knights and Ladies from the Court and imprisoned many other Knights Esquires and Lawyers to answer their offences in Parliament The first man proceeded against in Parliament was the Chief Justice Tresylian whom the Lords presently adjudged to be drawn and hanged The like Iuegement the Lords gave against Sir Nicholas Brambre Knight Sir Iohn Salisbury Sir Iames Burwâ—yes Iohn Beauchamp Iohn Blakes who were all drawn and hanged accordingly as Trayâ—ers one after another and Simon Burly beheaded after them by like judgement notwithstanding the Kings and Earl of Derbies intercessions for him to the Lords After their Execution Robert Belknapâ— John Holâ— Roger Fulthorp and William Burgh Justices were banished by the Lords sentence and their lands and chattels confiscated out of which they allowed them only a small annual pension to sustain their lives After which these Judgments against them were confirmed by Acts of Attainder as you may read in the Statutes at large of 11 R. 2. where their Crimes and Treasons are specified in Cokes 3 Institutes c. 2. p. 22 23. and in Knyghton Holinshed Fabian Speed Trussel with other Historians In the Parliament of 13 R. 2. n. 12. Upon complaint of the Bishop Dean and Chapter of Lincoln against the Mayor and Bayliffs thereof for injustice in keeping them from their rights and rents by reason of the franchises granted them which they abused Writs were sent to the Mayor and Baylifs to appear at a certain day before the Lords and to have full authority from the whole Comonalty to abide their determination therein At which day the Mayor and Bayliffs appearing in proper person for that they brought not full power with them from the said Commonalty they were anâ— goâ— by the Lords to be in contempt and so were the Mayor and Bayliffs of Cambridge for the self same cause this very Parliment n. 14. In the Parliament of 15 R. 2. n. 16. The Prior of Holland in Lancashire complained of a great riot done by Henry Treble John Greenboâ— and sundry others for entring into the Parsonage of Whitwâ—rke in Leicestershire thereupon John de Ellingham Serjeant at Armes by vertue of a Commission to him directed brought the said Treble and Greenbow the principle malefactors into the Parliament before the Lords who upon 〈◊〉 confessed the whole matter and were therefore committed to the Fleaâ— there to remain at the Kings pleasure after which they made a fine in the Chancery agreed with the Prior and found sureties for the Good behaviour whereupon they were dismissed The same Parliament n. 19. Sir Will. Bryan was by the King with the assent of the Lords committed prisoner to the lower during the Kings will and pleasure for purchasing a Bull from Rome to the Archbishops of Canterbury and York to excommunicate all such who had broken up his house and taken away divers Letters Privileges and Charters which Bull was adjudged prejudicial to the King his Councâ—l and in derogation of the Law Num. 20. Thomas Harding was committed to the Fleet by the King and Lords assent there to continue during the Kings pleasure for falsly accusing Sir John and Sir Ralph Sutton as well by mouth as writing of a conspiracy whereof upon hearing they were acquitted And n. 21. John Shadwell of Baghsteed in Sussex was likewise committed to the Fleet by THE LORDS there to remain during the Kings pleasure for misinforming of the Parliament that the Archbishop of Canterbury had excommunicated him and his neighbours wrongfully in his
Sautre being condemned of Heresie in the Convocation by Archbishop Arundel and the Clergy thereupon by order and advice of the Temporal Lords without the Prelates who must not have their hands in blood though they gave the Sentence that he should be burned or the Commons there issued out a Writ to the Sherifs of London for the burning of Sautre as an Heretick accordingly burnt thereon being the first writ of this Nature issued by the Lords alone in the Kings name before the Statute of Heresie was made and passed in this Parliament In the same Parliament of 2 H. 4. n. 30. The Temporal Lords by assent of the King adjudged and declared Sir Ralph Lumly Knight and others Traytors for levying war in sundry parts to destroy the K. his people and that they should forfeit all their lands in fee goods and chattels though they were slain in the field not arraigned nor indicted by reason thereof In the Parliament of 4 H. 4. n. 19 20 21. Sir Philip Courtney being complained against and convicted of a forcible entry into Lands and for a forcible imprisonment of the Abbot of Mâ—nthaem in Devonshire and two of his Monks was upon hearing and examination adjudged by the King and Lords to be bound to his good behaviour and for his contempt committed to the Tower of London prisoner Anno 1403. Henry Percy the younger confederating with Thomas Percy Earl of Worcester to raise forces â—nd rebel against the King sent Letters to the people of every County propositum quod assumpserant non esse contra suam ligeantiam et fidelit tem quam regi fecerant nec ab aliunde exercitum congregasse nisi pro salvatione personarum suarum reipublicae meliori guvernatione Quia census et Tallagia Regi concessa pro salva regni custodia covertebantur ut dixerunt in usus indebitos et inutiliter consumebantur praeterea querebantur quod propter aemulorum dilationes pessimas rex eis insensus fuerat ut non auderent personaliter venire ad ejus praesentiaem donec Praelati regnique Barones regi supplicassent pro eisdem ut coram Rege permitterentur declarare suam innocentiam per Pares suos legaliter justificari Plures igitur visis his literis collaudabant tantum virorum solertiam extollebant fidem quam erga Rempublicam praetendebant Having raised great forces against the King by this means which the kings forces encountred at Shrewsbury in a pitched battel Henry Percy and sundry of his adherents were there slain in the field and the rest routed For which levying of war in the Parliament of of 5 H. 4. n. 15. the said Henry Percy and his Coâ—federaâ—es were declared and adjudged Traytors by the King and Lords in full Parliament and their Lands goods and chaâ—tels confiscated In the same Parliament n. 18. At the Petition of the Commons The Lords â—enâ—ed and ordered that the Kings Confessor the Abbot of Dore Mr Richard Durham and Crosby of the Chamber should be removed out of the Kings house and Court whereupon 3. of them appearing before the King and Lords in Parliament the King though he excused them yet charged them to depart from his house for that they were hated of the people In the Parliament of 13 H. 4. n. 12 13. The Lord Roos complained against Robert Thirwit one of the Justices of the Kings Bench for withholding from him and his Tenants Common of Pasture and Turbâ—ry in Warbie in Lincolnshire and lying in wait with 500 men for the Lord Roos Thirwit before the King and Lords confessed his fault and submitted himself to their Order who appointed 3. Lords to end the difference who made an award between them that Thirwit shouâ—d confess his fault to the Lord Roos crave his pardon and tender him amends In the Parliament of 5 H. 5. n. 11. Sir John Oldcastle knight being outlawed of Treason in the Kings bench and excommunicated before the Archbishop of Canterbury for Heresie was brought before THE LORDS and having heard his conviction made no answer nor excuse thereto Upon which Record and Process THE LORDS ADJUDGED that he should be taken as a Traytor to the King and Realm carried to the Tower of London from thence drawn through the City to the new Gallows in St. Gyles without Temple-barr and there hanged and burned hanging which was accordingly executed Sir Iohn Mortymer knight being committed to the Tower upon supposition of Treason done against King Henry the 5. in the 1. year of H. 6. brake out of the Tower for which breach he was indicted of Treason being afterwards apprehended he was brought into the Parliament of 2 H. 6. n. 18. and upon the same Indictment then confirmed by assent of Parliament JUDGEMENT was given against him BY THE LORDS that he should be carried to the Tower drawn through London to Tiburn there to be hanged drawn and quartered his head to be set on London-bridge and his four quarters on the four Gates of London In the Parliament of 38 H. 6. n. 20 2â— 22. Sir William Oldham knight and Thomas Vaughan Esquire were attainted of Treason by the LORDS and in the Parliaments of 1 E. 4. n. 19. to 31. 4 E. 4. n. 28. to 38. â—4 E. 4. n. 34. to 40. sundry Knights Esquires Citizens and Commoners are attainted of Treason by the Lords for levying warr and holding forts against the King then after by Bill whose names are overtedious to reherse which you may peruse at leisure in the Exact Abridgement of the Records in the Tower To omit all other presidents of this Nature in the reigns of King H. 7.8 Ed. 6. Qu. Mary and Qu. Elizabeth of Commoners censured in and by the Lords house in Criminal causes upon impeachments complaints petitions which those who please may find recorded in the Journals of the Lords house I shall recite only some few Presidents more of late and present times In the Parliaments of 18. 21 Iacobi Sir Giles Mompesson and Sir Iohn Michel upon complaints and impeachments by the Commons for promoting Monopoliâ—s Corruption and other Misdemeanors were fined imprisoned by Judgement of the Lords House and Sir Giles degraded of his knighthood In the Parliament of 3. Carolâ— the Commons impeached Roger Manwaring Dr. of Divinity for preaching and printing Seditious and dangerous Sermons and sent up this Declaration against him to the Lords June 14. 1628. For the more effectual prevention of the apparent ruine and destruction of this kingdom which must necessarily ensue if the good and fundamental Laws and customs therein established should be brought into contempt and violated and that form of government thereby altered by which it hath been so long maintained in peace and happiness And to the honour of our Soveraign Lord the King and for the preservation of his Crown and Dignity the Commons in this present Parliament assembled do by this their Bill shew and
these 2. deposed Kings these 2. inferences have been made 1. That the Commons have a joynt interest with the Lords in the Judicature and Jugements in Parliament 2. That the Proceedings against our late condemned beheaded King are justifiable and warranted by them I answer that neiâ—her of these 2. Consequences are proved by them For 1. The Commons themselves in this Parliament of 1 H. 4. n. 79. immediately after King Râ—chards deposition confess That the Judicature and Judgements of Parliament belong only to the King and Lords not to the Commons 2ly The Commons neither in nor out of Parliament are may or ought to be the Judges of the meanest Lord or Peer of the Realm who are to be judged tried by their Peers alone as I have abundantly evidenced in the premises Much less then can they be lawful Judges of their Soveraign Lord and King who is a degree above all the Peers of highest dignity In the Parliament An 1260. Prince Edward as I have proved before would be tried only by 2. Kings because all the rest of the Earls and Barons were not his Peers neither could they be his Judges much less then can Peers or Commons be their Kings Judges Peers to ondemn or try him 3ly Our Law-books resolve That the King hath no Peers in his own Realm and Therefore he can neither be legally tried nor judged by the Peers themselves much less by the Commons in Parliament 4ly The Lawes of Hoel Dha King of Wales about the year 940. Lex 20. resolve Rex non poterit secundum legem in lite stare coram Judice suo agendo vel respondendo per dignitatem naturalem yea all the Lords and Commons of England in the Parliament of Lincoln Anno 29. E. 1. in their forecited Letter to the Pope p. 128. resolve That the Kings of England Ex praeeminentia status suae Regiae dignitatis ex consuetudine cunctis temporibus observata neque responderunt neque respondere debebant coram aliquo Iudice Ecclesiastico vel seculari supâ—r juribus suis in regno c. Much less then may or ought they to be put to answer criminally for their lives or Crowns before any Ecclesiastical or Temporal Judge Peers or Commons House or High Court of COMMONS 5ly The Statutes of 16 R. 2. c. 5. and of 25 H. 8. c. 19.21 thus declare resolve and the Archbishop of Canterbury in the Parliament of 16 R. 2. n. 20. protested against the Popes pretended Supremacy That the Crown of England hath been so free at all times that it hath been in subjection to no Realm or Person but immediatly subject to God and to none other in all things touching the Regality of the said Crown And the Statutes of 25 H. 8. c. 19 21 22. 26 H. 8 c. 1.3 27 H. 8. c. 15. 28 H. 8. c. 7.10 31 H. 8. c. 10.15 32 H. 8. c. 22.24 26. 33 H. 8. c. 29. 35 H. 8. c. 1.3.17 19. 37 H. 8. c. 17. 1 E. 6. c. 2. 1 Eliz. c. 1. 8 Eliz. c. 1. 3 Jac. c. 3 4. declare and enact The King to be the only Supreme Head Governor upon Earth both of the Church Realm of Engl. both of which recognize no Super or under God but only the King To affirm then that the Lords or Commons in Parliament may lawfully judge depose the King and deprive him of his Crown Regalities Head Life is to contradict repeal all these Statutes since the inferior Members can no more legally judge the Supreme head of the body politick than the head of the body natural or the Courrs in Westminster hall or Hundred Courts judge the High Court of Parliament and condemn repeal their Acts or Judgements 6ly Though Articles were drawn up against these two Kings pro forma yet neither of them was ever required or judicially summoned to make answer to them or heard or brought to trial before the Lords or Commons Barr or any other Tribunal or Court of Justice Whence the Bishop of Carlisle protested against it as most illegal unjust and trayterous Therefore neither the Lords nor Commons could be properly said their Iudges in this case and their Judgement without hearing or trial of them must needs be most erronious as well as Mortimers and the Earl of Arundels forecited 7ly The Lords and Commons resignation of their Homage to these 2. Kings when deposed shew that even then they esteâ—med them their Superiors Lords Homage being the most honourable and humble service that a franktenant may do to his Lord the tenant being ungirt his head uncovered kneeling down on both his knees before his Lord sitting covered and holding up his hands joyntly together between his Lords and the Kings hands when he doth his homage saying I become your man from this day forward of limb and of earthly worship and unto you shall be true and faithfull and bear faith for the tenements I hold of you And when done to any other Lord it is with a Saving the faith I owe unto our Soveraign Lord the King and his Heirs 8ly The Sentences of Deposition against them were given only by the Legislative power not JUDICIAL by way of Bill consented unto in the Parliament house by the Lords and Commons then sent to these Kings to their prisons and there read unto them by Committees and Proxies representing all the Estates in Parliament Therefore the reading of them to these Kings in their prisons was not properly a judgement neither did it constitute them who read it to them their Judges much less create the Commons Judges of these Kings 9ly All the Lords Spiritual Temporal and Commons concurred joyntly in this Act of resigning their Homage to these Kings to whom they were all joyntly obliged and in whom they had all a common interest Et quod tangit omnes ab omnibus debet approbari Therefore it is no warrant for the proceedings against our late King without the consents and against the Express Votes of the whole House of Lords and of the Majority of the Commons house 10ly The Lords alone without the Commons gave Judgement for the close and perpetual imprisonment of King Richard the 2. therefore they were his sole and proper Judges by way of Sentence his deposition being by the Legislative not Judicial power 11ly These Kings especially the later of them had no sentence of deposition nor proceedings against them til they had through fear or pusillanimity first resigned their Crowns and kingship as unfit to reign or govern any longer which was made the principal ground of their subsequent declaratory depositions by the Lords and Commons when they had reduced themselves into the condition of private men by their resignations These presidents therefore cannot justifie the late proceedings against an actual lawful hereditary King by a small party of the Commons house alone without the House of Peers or the Majority of their fellow-Members who never resigned his
should be holden once every year or more often if need be to redress divers mischiefs and grievances which daily happen especially delayes in Judgements and sutes at Law through difficulty or diversity of Opinions among the Judges To prevent which the Statute of 14 E. 3. c. 5. enacts that from henceforth at every Parliament shall be chosen a Prelate two Earls and two Barons which shall have Commission and power of the King to hear by Petition delivered to them the complaints of them that will complain of such delayes and grievances and to cause the records of such Judgements to be brought before them and to hear the cause and reasons of such delayes and by the assistance and advice of the Chancellor Treasurer Justices of both Benches and as many other of the Kings Council as shall seem convenient shall proceed to take a good award and make a good judgement therein And that the Judges shall proceed hastily to give Judgement according to their determination And in case it seemeth to them the difficulty be so great that it may not well be determined without the assent of the Parliament that the said Prelate Earls and Barons shall present the tenor or tenors of the said record or cause to the next Parliament and there shall be a final accord taken what judgement ought to be given in his case And according to this award shall be commanded to the Judges before whom the plea did depend that they shall proceed to give Judgement without delay And to begin to give remedy upon this Ordinance it was assented that a Commission and power be made to the Archbishop of Canterbury the Earls of Arundel and Huntington the Lord of Wake and the Lord Raufe Basset to endure till the next Parliament After which I find this Commission made in pursuance of this Ordinance Edwardus Dei gratia c. authorizing the Bishop of Chichester the Earls of Huntingdon and Devonshire and Tho. Wake of Lidell and Thomas de Berkley Barons assigned to hear querelas omnium qui se de gravaminibus dilationibus sibi factis coram Iustic et aliis conqueri voluerint per avisamentum Cancell Thes Iustic de atroque Banco aliis dâ— Consilio Regis according to the Ordinance made in Parliament 14 Ed. 3. c. 5. that Unus Praelatus Duo Comites et Duo Barones should have Commission and power to hear and determine such complaints Test Rege apud Westm nono die Iunii There is this Petition of the Commons to the King for declaring Treasons in 25 E. 3. Rot. Parl. n. 17. Item come les Iustices nostre Seignior le Roy assignez en diversâ—es Countees ajuggent les gentz que sont empeschez devant eux come Traiteurs pur diverses Causes desconues a la Comune estre Treason que please a nostre Seignior le Roy per son Counseâ—l eâ— per les Grantz et sâ—ges de la terre declarer les pointz de Treason en cest present Parlament Quant aâ—la Petition touchant Treason nostre Seignior le Roy ad Fait declarer les Articles de Y celle en maneâ— que ensuit as in the Statute of 25 E. 3. c. â— By which Petition Act and the like Petition in 21 E. 3. n. 15. it is apparent That the Right of declaring Judging what is High Treason in Parliament belongs originally to the King himself by the advise of his Councel Great men and Sages of the Land and not unto the Commons House at whose request the KING then made a Declaration of the Articles of Treason as in this Statute by his Nobles Councils and Iudges advice Therefore the Declaration of all other Treasons in particular cases not within this Statute belongs wholly to the King Lords Council and Judges in the Lords House not to the Commons alone or joyntly with them within the later branch of this Act as well as the Treasons within the body thereof viz. Because that many other like cases of Treason may happen in time to come which a man cannot imagin nor declare at this present time it is accorded that if any other case supposed Treason which is not before specified shall happen de novel before any Iustice the Iustice shall demurâ— without going to Iudgement of the Treason tanque per devant le ROY EN SON PARLEMENT soit le case monstre et declare de que leceo doit estre a jugge Treason ou autre Felony Against the Opinion of Sir Edward Cooks 3 Institutes p. 22. The Commons having no power at all to declare and judge what shall be Treason in such new particular cases but only when a New Treason is made or declared for the future by Bill or Act of Parliament wherein their concurrence is necessary as in all new Acts concerning Treasons since 25 E. 3. as is evident by Mr. Sr. Iohns Argument at Law this very last Parliament at the Attainder of Thomas Earl of Strafford and Mr. Samuel Browns Argument at the Lords House Bar to prove and satisfie the Lords House that he and Archbishop Laud were guilty of High Treason upon the Articles of their several Impeachments exhibited and proved against them of which the Lords and King alone were the proper Iudges but the Commons only their Impeachers and Prosecutors in the Iudicial way of Parliamentary Proceedings as I have formerly evidenced Therefore all the late Votes knacks Declarations of the Commons House alone before or without the Kings House of Lords Declarations Resolutions of sundry things to be high Treason and divers persons to be Traytors upon bare informations suggestions though not within the Letter of 25 E. 3. c. 2. are but meer illegal innovations extravagancies yea Nullities in Law fit to be eternally exploded especially by Lawyers the chiefest Innovators Promoters of them rather out of ignorance or rashnesse than Prudence Law or solid Iudgement for which they can produce no presidents in former ages In the year 1392. the 15 of King Rich. the 2. we have this memorable President of the Lords Iudicature together with the King assembled in a Great Councel without the Commons in the case of the Mayor Sherifs Citizens and City of London thus related by Walsingham at large Misit Rex ad Cives Londoniarum petens ab eis mutuo mille libras cui procaciter et ultra quam decuit restiterunt Sed quendam Lumbardom volentem accommodare regi dictam summam male tractaveâ—unt veâ—beraverunt er paulominus occiderunt Quae cum Rex â—udisset iâ—aâ—us est valde et convocaas omnes regnipene Majorâ—s apperuit proterviam civium Londoniarum et de praesumptione conqueritur eorundem Qui omnes infesti Civibus propter diversas causas consulunt ut reprimatur citius eorum insolentia et superbia destruatur Eranc quippe tunc inter omnes fere nationes gentium clarissimi arrogantissimi et avarissimi ac male creduli in deum traditiones avitas Lolardorum sustentatores
the Commons may sit alone as Cyphers but not as a Parliament or Council to vote impose or act any thing that is binding to the people since regularly they neither are nor ever yet were in any age no more a Parliament in any case without the King and Lords then the King and Lords alone are now a Parliament though antiently they were so of themselves without the Commons or the trunk of a man a perfect man without head or shoulders If 3. be joyntly impowred or commissioned to do any act by Commission Deed or Warrant any one or two of them can doe nothing without the third If many be in Commission of the Peace Sewers or the like three of the Quorum joyntly to act therein joyntly if any one of the three be absent or dead all the rest can doe nothing because their authority is joynt not single In Parliament it self if either house appoint a Committee of 3 5 or 7. to examine act or execute any thing if but one of this number be absent or put out the rest can doe nothing that is legal or valid even by course of Parliament neither can either House sit and vote as a House unlesse there be so many Members present as by the Law and custom of Parliament will make up an House as every mans experience can inform him If these Levellers then will absolutely cut off or exclude the King or Lords from the Parliament they absolutely null and dissolve it and the Act for continuing this Parliament cannot make nor continue the Commons alone together as a Parliament no more than the Lords or King alone without the Commons the King or either house alone being no Parliament but both conjoyned and enlivened with the Kings personal or representative presence The cutting off the head alone or of the head and shoulders altogether destroys and kills the body Politick and Parliament as well as the body natural If the King dies or resigns his Crown or be deposed the Parliament thereby is actually dissolved as it was resolved in the Parl. of 1 H. 4. n 1 2 3. 1 H. 5. n. 26. 4 E. 4.44 and Cooks 4 Institutes p. 46. The last Parliament of 21 Jac. dissolved by his death So if the Lords or Commons dissolve and leave their House without any adjournment or if the King by his Writ dismisse or dissolve either of the Houses the Parliament is thereby dissolved as the forecited Presidents and the latter clause of the writ for the election of Knights and Burgesses manifests And a new kind of Parliament consisting only of Commoners when the old one only within the Act for continuing this Parliament made up both of King Lords and Commons is dissolved neither will nor can be supported or warranted by the Letter or intention of this Law or any other Law custom or right whatsoever Ninthly All the Petitions of the Commons in all antient modern Parliaments to the King Peers for their redresse of grievances recorded in our antient Parliamentary Rolls The usual Prologue to most of our antient printed Statutes in the Statutes at large in Poulton The King at the request of the Commons of or by the assent of the Prelates Dukes Earls Barons and other great men there assembled hath ordained these things or Acts underwritten all Acts of Parliament now extant usually running in this form The King with the assent of the Lords Spiritual and Temporal in Parliament hath ordained And be it enacted by the Kings moct excellent Majesty the Lords Spiritual and Temporal in this present Parliament assembled The famous Petition of Right 3 Car. so much insisted on beginning thus Humbly shew unto our Soveraign Lord the King the Lords Spiritual and Temporal and Commons in Parliament assembled thus answered by the King Let right be done as is desired The Act for continuing this Parliament made by the King and Lords as well as by the Commons who never intended to exclude themselves out of this Parliament by that Act or that it should continue if either of them were quite dismembred from it with all Acts and Ordinances since Yea the very Protestation and Solemn League and Covenant taken by the Commons Lords and prescribed by them to all others throughout the three kingdoms which couple the Lords and Commons always together neither of them alone being able to make any binding Act nor Ordinance to the Subjects unlesse they both concurr and have the Kings royal assent thereto no more than one Member alone of the House can make a House and ranck the Lords always before the Commons and the King before them both so firmly hold forth establish the Lords and Kings undoubted Rights to sit and Vote in Parliament and decry this new invented Monopoly of a sole Parliament of Commons without King or Lords and that absolute Sovereign Power these Lilburnists new Lights have spied out and set up for them in Utopia that impudency it self would blush to vent such mad absurd irrational Frenzies and Paradoxes as these crack brain'd persons dare to publish and they may with as much truth and reason argue that one man is three that the Leggs and trunk of a man are a perfect man without head neck arms and shoulders or that the Leggs Ribs Bowels of the Body are and ought to be placed above the head neck shoulders as that the House of Commons are or ought to be an entire Parliament the sole Legislative Power the only Supreme Authority paramount both King and Lords who must not now have so much as a Negative voice to deny or contradict any of the Commons Votes or Ordinances though never so rash unjust dishonourable prejudicial or dangerous to the whole Kingdom as these new Dogmatists affirm Tenthly The Commons themselves in their joynt Declaration and Resolution with the Lords this Parliament concerning his Majesties late Proclamation 9 August 1642. printed by their special order declare and stile his House of Péers to be the Hereditary Counsellors of the Kingdom The like they declare in their Declaration of 16 January 1642. Mr. John Pym in his Speech at Guildhall in London 14 January 1642. made and printed by the Commons special order asserted That the Lords have an Hereditary interest in making Laws in this Kingdom The Commons House in their Remonstrance of the State of the Kingdom 15 December 1641. affirm That the Peers are the Kings Great Council That the King summoned the Great Council of Péers to meet at York the 24. of September and there declared a Parliament to begin the 3. of November following In which Parliament when the Lords and Commons met they add But what can we the Commons doe without the conjunction of the House of Lords and what conjunction can we expect there when the Bishops and Recusant Lords are so numerous and prevâ—lent thereby confessing that without the Lords concurrence who are the Great Council of the Realm the
Commons can do nothing at all in Parliament since all Laws Ordinances Taxes Votes that are valid and binding to the people must pass Both Houses and have the Lords as well as Commons assent as they resolve in sundry printed Remâ—nstrances Declarations mentioning Both Houses of Parliament â—nd their concurrence to all things therein concluded and the King likewise in his The Lords and Commons in their Declaration of the 5th of August 1645. to the High and Mighty States General of the United Provinces printed in A Collection of Ordinances of Parliament p. 699 700. complain thus to them of this misinformation of their Ambassadors June 20. 1645. The Lower House hath caused the Chamber where they sit in to be hanged with Tapistry which was heretofore never so It is said it is done that the Lords changing their Chamber shall come and sit in the House of Commons and so to be both together reduced into one body and the better agree by number of Votes When heretofore the Parliament was full then the Lords Chamber did consist of about 126. or more Votes and the Lower House of above 500 Votes and they have alwayes been in several Houses and the one could not conclude anything for a Resolution of the King unless the other House did also consent but now the King is absent and the Vpper House should now be melted into the Lower and in the Common Assembly of about 26 Lords which are now here and some 200 Commoners so the most Votes should rule and Ordain all matters Thus much we are told and that it tends to shun many disputes and hindrances which happen in their resolution every day The Lords remain constant to maintain their Rights and say this is to take away all their Right and prerogative taking away their House and so to bring all the power under the Commons â—o which Misinformation the Commons and Lords too returned this Answer to the States My Lords the Commons are charged with endeavour of altering the fundamentals of Parliament by taking away the House of Péers and melting it into the House of Commons when as there was never any debate in the House of Commons concerning aâ—y such matter nor was the same ever intended or desired by the said House After this the whole House of Commons in their Declaration of the 17 Aprilis 1646. of their true Intentions concerning the antient and fundamental Government of the Kingdom thus positively declared to all the world That our true and real Intentions are and our endeavours shall be to maintain the antient and fundamental Government of the Kingdom By King Lords and Commons that we have only desired that with the consent of the King such powers may be setled in the two Houses without which we can have no assurance but that the like or greater mischiefs which God hath hitherto delivered us from may break out again and engage us in a second and more destructive warr Seeing then the very Commons House themselves in these and sundry other printed Declarations have so fully so frequently declared resolved the Lords antient undoubted Hereditarie right and interest to sit vote and assent unto all Laws Ordinances Proceedings in Parliament as the Great Council and Counsellors of the kingdom and acknowledged this their Privilege and the House of Peers to be a part of the fundamental Constitution and Government of this kingdom which they are resolved to maintain and not to alter and that they never intended nor desired much less endevoured the altering the fundamentals of Government by taking away the House of Lords How any Commoners Levellers or others can now dare to question deny or oppugn this their hereditary fundamental right of Peerage or attempt the actual abolishing of the House of Peers without the highest Impudency Treachery Absurdity and incurring the Crime of a New Gun-powder Treason to blow up the House of Lords afresh which the old Jesuitical Popish Gun-powder Traytors only attempted but could not accomplish transcends my understanding to comprehend 11ly The General Council of the Officers of the Army in their Declaration made at Windsore about January 1647. presented to the Lords House by Sir Hardress Waller asserted The hereditary Legal Right of the Lords and their House in Parliament and the Armies fixed resolution to uphold and maintain them and their Privileges with their swords And if John Lilburns printed Letter to the Speaker July 8 1648. p. 26 27. may be credited Lieutenant General Cromwell himself protested to him and others at the Lord Whartons house and that upon his conscience in the sight of God That the Lords had as true a Right to their Legislative and Iurisdictive power over the Commons as he had to the coat on his back and that he and the Army would support the same How dare then any Levellers or Officers in the Army or elsewhere to question or attempt to abolish this their undoubted right to sit vote and exercise a legislative and Juridical Jurisdiction in Parliament and that over Commons themselves in cases which concern their Peerage and in cases not triable properly elswhere but only in Parliament 12. Twelfthly These very Sectaries and Levellers themselves have acknowledged asserted this Right Power of the Lords all along this Parliament till of late as appears by their several Petitions and Complains to them upon sundry occasions heretofore by their resorting to them for Justice against Strafford Canterbury and others Yea Jo. Lilburn himself till his late quarrel with them not only acknowledged their very power of Judicature but highly applauded their Justice in his own cause Petitioning and suing to them not onely for reversal of the sentence against him in Starchamber but likewise for damages and reparations against his Prosecutors pleading his cause by his Counsel before them as his proper Judges who thereupon by judgement of the House vacated the Decree against him as illegal voted him Damages and passed him an Ordinance for the recovery and levying thereof all which he himself hath published in sundry of his printed Pamphlets wherein he acknowledgeth and extolleth their Justice Take but one passage for all in his Innocency and Truth justified p. 74 75. If I be transmitted up to the Lords I confidently believe I shall get forward out of the former experiences of their Justice there I will instance two particulars First when I was a Prisoner in the Fleet and secondly May the fourth one thousand six hundred forty one The King accused me of High Treason and before the Lords Bar was I brought for my life where although one Littleton servant to the Prince swore point blank against me yet had I free liberty to speak for my self in the open House And upon my desire that Master Andrews also might declare upon his Oath what he knew about my business it was done And his Oath being absolutely contradictory to Master Littletons I was both freed from Littletons malice and the
exterminium et omnes Magni qui Stephano juramentum fecerunt MISERVM SORTITI SUNT FINEM In the 16. and 17. years of K. John An. Dom. 1214 1215. The Prelats Earls Nobles and Barons being assembled together in a great Parliamentary Council held at Pauls after at St. Edmunds there was produced and read before them a Charter of King Henry the 1. which the Barons received from Stephen Archbishop of Canterbury which Charter conteined certain Laws and Liberties of King Edward granted to the holy Church and the great men of the Realm with some other Liberties which the said King had added thereunto of his own grant Which being read thereupon the BARONS ALL swore in the Archbishops presenc that if need were they would spend their blood in its defence And afterwards at St. Edmonds Bury the BARONS swore upon the High Altar That if King John refused to confirm and restore to them those Liberties and Rights of the kingdom they would make War upon Him and withdraw themselves from his allegiance till he had ratified them all by his Charter under his Great Seal Which they accordingly performed The King promising to confirm their Liberties and the Charter of King Henry the 1. which the Barons publikely read in 3. of their Great Parliamentary Councils and yet deâ—aying the same thereupon all the Nobles and Barons assembled together at Stamford with their horses friends and followers amounting to many thousands resolving to force the King to grant and ratify the same Whereupon the King sent the Archbishop of Canterbury William Marshal Earl of Pembroke and other prudent men to the Earls and Barons to demand of them Quae essent Leges Libertates quas quaerâ—bant Who thereupon produced a schedule of them to the Messengers quae ex parte maxima Leges antiquas regni consuetudines continebat Capitula earum partim in Charta Regis Henrici 1. superius scripta sunt partimque ex Legibus Regis Edwardi antiquis excerptâ— The Barons affirming quod nisi Rex illas in continenti concederet et Sigilli munimine confirmaret ipsi per captionem Castrorum suorum terrarum possessionum IPSUM REGEM COMPELLERENT donec super praemissis satisfaceret competenter The Archbishop returning to the King and repeating the Articles and Liberties they demanded to him by heart when he understood their contents with great indignation and scorn answered Et quare cum istis iniquis exactionibus BARONES non postulant regnum Vana sunt iniquit et superstitiosa quae petunt nec aliquo rationis titulo fulciuntur Affirmavit tandem cum iuramento fuâ—ibundus quod nunquam tales illis concederet Libertates unde ipse efficeretur servus When the Archbishop and William Marshal the Earl could by no means induce the King to consent thereto they returned by his command to the Barons relating all that the King had said to them in order Whereupon tota Angliae Nobilitas in unum collecta all the Nobles of England collected together into one body constituted Robert Fitzwalter General of their Militia calling him MARESCALLV MEXERCITVS DEI ET ECCLESIAE SANCTAE and flying to their arms besieged several of the Kings Castles Who thereupon seeing himself generally deserted almost by all men and fearing the Barons would take his Castles without any resistance though he bare an inexorable hatred against the Barons in his heart yet thinking to be revenged of them singly afterwards when he could not do any thing against them all being united he sent Messengers to assure them quod pro bono pacis ad exaltationem Regni sui et honorâ—m Gratanter concederet Leges et Libertates quas petebant desiring them to appoint a fitting time and place for them to meet and conferr together and perform what they desired Whereupon the King all the Nobles and Barons meeting together at a Conference in Running Mead he after many debates granted them the Laws and Liberties they desired confirming them by his Charters under his Great Seal the Tenor whereof is at large recorded in Matthew Paris and in the Red Book of the Exchequer being almost the same in Terms with Magna Charta and Charta Forestae afterwards granted confirmed in 9 H. 3. printed in all our Statute Books and so needless to transcribe These Charters being sealed and confirmed by the King he at the Barons request sent Letters Patents through all the coasts of England firmly commanding all the Sheriffs of the whole Realm that they should cause all men of what condition soever within their Bayliwicks to swear that they would observe the foresaid Laws and Liberties and that to the best of their power they would constrain the King himself by the seising of his Castles to perform all the things aforesaid as they were conteined in his Charter In mean time the King sent Letters to Pope Innocent to vouchsafe to confirm the Liberties and Charters he had granted with his Bull. After which for their more inviolable observation it was concluded and enacted That there should be 25 BARONS chosen by the LORDS not Commons who should to their utmost power cause the Great Charter confirmed by K. John to be duly observed That if either the King or His Justicier should transgress the same or offend in any one Article 4 of the said Barons should immediately repair to Him and require redress of the same without delay which if not done within forty days after that then the said 4 BARONS and the rest should distrain and seize upon the Kings Castles Lands and Goods till amends was made according to their arbitration Rot. Patent Anno 17. Johannis Regis in the Tower m. 21 22. n. 23. Dorso Writs were sent to all the Sherifs Counties of England to swear all the people to those 25 Barons to aid and assist them in the premises under pain of seizing their lands into the Kings hands and confiscation of all their goods to him if they refused to take the Oath within 15 dayes And the City and Tower of London were put into the Barons hands till the King had performed his agreement with them Such confidence and power was then reposed in the BARONS alone In the Patent Roll of 16 Johannis Regis pars 1. dors 3· I find this memorable Grant to the Barons well explaining the Statute of Magna Charta c. 29 Sciatis quod concessimus BARONIBUS qui contra nos sunt quod eos nec homines suos capiemus nec dissaiseamus nec super eos per vim vel per arma ibimus nisi per legem Regni nostri vel judicio Parium suorum in curia nostra A very excellent Privilege Law Liberty purchased by the Barons industry inserted into K. Johns Great Charter soon after published ratifying it in these terms Comites Barones non amercientur nisi per Pares suos non nisi secundum modum delicti Nullus liber homo capiatur vel imprisonetur vel
banish Peter Gâ—verston which he refusing to doe they pursued him with their arms cut off his head slighted the Popes Letters and Nuncios regulated his Extortions and enforced the King to confirm the Ordinances they made for the redress of all grievances both in Church and State with the Great Charter Laws and Liberties of the Church and people in whose defence and quarrel this Earl afterwards lost his life To these I could annex many other such like Letters resolutions oppositions of our Earls Lords Barons in Parliament against the Popes Usurpations Encroachments upon the Crowns Royalties of our Kings and Liberties Laws Customs of our Kingdom as 21 E. 3. rot Parl. n. 63.40 E. 3. rot Parl. n. 8. Cooks 4 Institutes p. 13 14.50 E. 3. rot Parl. n. 85. to 108. 27 E. 3. c. 1. 38 E. 3. c. 4. 16 R. 2. c. 5. wherein every one of the Lords temporal in Parliament answered and averred by himself severally and joyntly with the rest That neither King John nor any other could put himself or his Realm or people into subjection or Tribute unto the Pope without their common assents That the submission he made to the Pope was without their assents and against his Oath at his Coronation That if the Pope by process or otherwise would attempt to enforce the King or his Subjects to render him the Services and annual Tribute for England and Ireland granted him by King John they would resist and oppose him with all their power And moreover That they will stand with the Kings Crown and Royalty in all cases of the Popes usurpations clearly in derogation of the Kings Crown in all other cases which shall be attempted against the said Crown and Royalty in all points with all their power whose Gallantry loyalty stoutness have been the chief means under God to enfranchise our Kings kingdoms Church from the manifold Antichristian Tyrannies Usurpations Oppressions Taxes Vassallages Slavery of domineering Popes in all ages as the premises with other instances sufficiently evidence And upon this ground it was by reason of the Popes incessant Usurpations in former times upon the Royalties Rights Liberties both of the Crown Realm and Church of England that the Nobles in our Parliaments were in the very Writs of Summons ever called thereunto to consult and treat with the King Prelats Lords and Great men of the Realm of certain weighty and arduous affairs concerning the State and Defence of the Realm ET ECCLESIAE ANGLICANAE and the Church of England the Defence of the Church as well as Realm against the Popes incroachments being one chief business of our Lords and Greatmen in our Parliaments which now it seems is no part of our New-modelled Parliaments as some stile them there beieg neither DEI GRATIA nor Statum defensionem ECCLESIAE ANGLICANAE to be found in any of their New Writs that I have seen which had been an impious insufferable omission in all former ages This Clause engaging our Peers so stoutly to resist the Pope as the premises demonstrate which good service of theirs hoth in common Justice reason equity merited a Place and Vote for them and their Posterities in all our English Parliaments without any popular election Before I proceed to the next reason of our Lords sitting in Parliament I shall earnestly importune yea adjure all the antient Earls Barons Nobles and Great men of our Realm with all who have lately been or pretend to be any Knights Citizens Burgesses of real or pretended Parliaments our late and present swaying Grandees and all Lawyers Gentlemen Freemen of our English Nation seriously to review and cordially to ponder all the forecited memorable presidents of their Noble Gallant publike spirited Ancestors here recited and bundled up together for their information reformation and undelayed imitation in this and the precedent reason both in procuring regaining reestablishing the Great Charters of our fundamental Liberties Rights Properties Freedom with solemn New publications Excommunications Execrations Oaths Confederacies Penalties Laws Edicts for their own and their Posterities benefit In denying opposing resisting all unreasonable or illegal Aids Subsidies Tenths demanded intreated of or exacted from them by our Kings upon real or pretended Necessities Wants Wars or defence by Sea and Land their bold frequent unanimous magnanimous reprehensions of our Kings and their evil Counsellors to their faces for their Exorbitances Misgovernment Exactions Oppressions Violations of their Great Charter Laws Liberties Privileges Oaths Promises and unnecessary Warrs or Expences without their publike Counsel or advice in their resolute inflexible unanimous resolutions oppositions both in and out of Parliaments against all illegal Papal Encroachments Usurpations Exactions on the Rights Privileges of the Crown Kingdom Church Parliament Clergy People upon every fresh occasion and in their vigilant indefatigable zeal earnest care diligence with the hazard of their Limbs Lives Liberties Estates and effusion of their bloud for the publike Liberty Freedom Ease weal good Government of the Nation according to those wholsom Charters Laws and Ordinances which they procured for that end with much industry strife and opposition in many successive Parliaments And then let them all with confusion of face consternation of spirit and grief of heart seriously consider how stupendiously monstrously and incredibly they have all for near ten years last past most desperately apostatized degenerated both from the Heroick Noble Gallant Memorable Presidents Practices Courage Zeal of these their Renowned Ancestors in every of these particulars and from their own Praiseworthy Actions Remonstrances Councils Parliamentary and Military proceedings of like Nature under our two last Kings out of unworthy un-English unchristian Cowardize Fear Self-love Sluggishness Sottishness Supineness after all their late solemn publike Protestations Remonstrances Declarations Vows Oaths Leagues Covenants near ten years bloudy intestine Wars the overprodigal expence of many Millions of Treasure and whole Oceans of precious Christian Protestant English bloud for the real or at least pretended Defence alone and maintaining secuting those antient undoubted Fundamental Great Charters Laws Liberties Properties Privileges and Rights of Parliament exempting us from all future arbitrary tyrannical illegal Exactions Taxes Excises Imposts Imprisonments restraints exiles and executions which they have now all most ignobly submitted to without the least manly publike or private Opposition contradiction or care activity to break off those iron yoaks of bondage and intollerable perpetual burdens which some Impudent Intruders and new Aegyptian Tax-masters have most illegally imposed on them as if they were all resolved to renounce all their former Great Charters Laws Liberties Privileges and Rights of English Nobles Parliamentmen Freemen and to becom the basest bondslaves under heaven So that if these our Nobles Ancestors should now rise from the dead they might justly stand amazed at this their ignoble slavish cowardize and universal degeneracy yea disclaim them as spurious and none of their heroick English progeny and they all may justly demand this Question from themselves
Barons being no such Knights Citizens or Burgesses as the writ enjoyns them to elect and return 3. By all the Statutes for electing Knights Citizens and Burgesses recorded in Rastall Tit. Parliament the Lords being not within their words or intention 4. By the Great Charter of King John and express Statutes of 5 R. 2. Stat. 2. c. 4.31 H. 8. c. 10. Rot. Par. n. 10. which disable them to sit amongst the Commons but only in the Lords house among their Peers 5. By the very words of the Patents of their Creation which authorize and prescribe all Dukes Earls Viconts Barons in direct terms Quod in omnibus tenerentur tractentur et reputentur ut Duces Comites Barones quod haeredes sui masculi et eorum quilibet habeat teneat possideat sedem locum et vocem in Parliamentis publilicis Comitiis et Consiliis nostris Haeredum et Successorum nostrorum infra Regnum nostrum Angliae inter alios Duces Comites et Barones not amongst the Knights Citizens and Burgesses ut Duces Comites et Barones Parliamentorum Publicorum Comitiorum et Consiliorum not as Knights Citizens or Burgesses 6. By Sir Edward Cooks 4 Institutes p. 46 47. and Mr. Seldens Titles of Honour p. 736 737. who resolve That a Baron or Lord of Parliament is not eligible to be a Knight Citizen or Burgess of the House of Commons as was resolved in the case of Thomas Camoyes who was not only a Baronet but also a Baron and Lord of Parliament The Lord Camoyes being elected by the Freeholders of the County of Surrey for one of the Knights of the Shire to serve in Parliament for them Anno 7 R. 2. thereupon the King by advice of Council declared his election to be null and void in Law and commanded a new election of some other fit person to be made in his place by this memorable Writ extant on record Rex Vicecomiti Surriae salutem Quia ut accepimus tu Thomam Camoyes Chivaler qui Baronettus est sicut quamplures antecessorum suorum extiterunt ad essendum unum Militum venientium ad proximum Parliamentum nostrum pro Communitate Comitatus praedicti de assensu ejusdem Comitatus eligisti Nos advertentes quod hujusmodi Baronetti ante haec tempora in Milites Comitatus ratione alicujus Parliamenti elegi minime consueverunt ipsum de officio Militis ad dictum Parliamentum pro communitate Comitatus praedicti venturi exonerari volumus Et ideo tibi praecipimus quod quendam aâ—ium Misi em idoneum et discretum gladio cinctum in loco ipsius Thomae elegi et eum ad diem et locum Parliamenti praedicti venire facias cum plena et sufficienti potestate ad consentiendum hiis quae in Parliamento praedicto sicut juxta renorem prioris Brevis nostri tibi pro electione hujusmodi militum directi et nomen ejus Nobis Sciri facias Teste Rege apud Westmonasterium octavo die Octobris 7ly Both Houses of Parliament in their Remonstrance of Nov. 2. 1642. declare and publish in print to all the World This to be so clear and fundamental a privilege of Parliament That no Member of either House of Parliament is to be taken away or detained from the service of the House whereof he is a Member until such time as that House hath satisfaction concerning the cause and the cause be heard in Parliament first and dismissed from it That the whole freedom of Parlament dependeth upon it For who seeth not that by this means under false pretences of crimes and accusations such or so many Members of both or either Houses of Parliament may be taken out of it at any time by any persons to serve a turn and to make a MAJOR PART of whom they will at pleasure So as the freedom of Parliament dependeth in a great part on this privilege yea without it the whole Body of the Parliament will be destroyed by depriving it of its Members by degrees some at one time and others at another time as both Houses further remonstrate in their Declaration of October 23. 1642. Which as it infallibly demonstrates that the Lords House or Members cannot be taken away or taken from them against their wils without the destruction subversion of the whole Parliament of which they are chief Members the Judicial power of Parliaments residing principally in that House if not wholly So it likewise clearly resolves that no Peer or Member of the Lords House can be elected a Member of the Commons house For if the election of the Freeholders Citizens or Burgesses of any County City or Borough of a Duke Earl Lord or Baron of the Realm to be a Knight Citizen or Burgess in Parliament should be valid in Law to make them legal actual Members of the Commons house it would then lie in their powers to un-Peer un-Lord and degrade any Nobleman yea all the Earls Peers Lords Barons of the Realm and their Posterity at their pleasures to reduce them and the whole House of Peers into the Commons inferiour house and so quite dissolve the Lords House in high affront dishonor of the Lords and their House and of the Kings Soveraign royal Authority the fountain of all Honor and that without any legal trial or Judgment by their Peers or just cause of degradation on their parts against the express words and meaning of Magna Charta c. 29. And if any Lords upon such Elections should so far degenerate debase or degrade themselves as to accept thereof and ignobly sit and vote as Members of the Commons House both they and their posteritieâ— for such an ignoble act meritoriously deserved to be for ever degraded from their Nobility and secluded from all future sitting in the Lords House as Peers becoming thereby the very shame scorn scandal of Nobility fit only to be ranked with the basest Peasants to whom these Levellers would now equallize them Yea it would be now no less than wilfull perjury in any Freeholders Citizens Burgesses to elect them Knights or Burgesses and in themselves to accept of such Elections when chosen and in the whole House of Peers and Commons too once to permit allow approve or connive at such elections after their late Protestation Vow and Solemn League and Covenant to maintain to their power the Rights Privileges of Parliament and both Houses of Parliament whereof this is an unquestionable Right and Privilege That no Member of the Lords House should be elected a Knight Citizen Burgess or brought down from thence to sit only as a Commoner in the Commons House so long as he continues a Peer or Member of the Lords House a distinct House from and superior to the Commons House in all ages as its Title of the Lower House and their standing alwayes bare before the Lords with other evidences demonstrate nor any Knight Citizen or Burgess a true real Member of the House of Peers
Seignour le Roy que ore est tenue a Westminstre lanquinzisme per examinent dez Praelates Contes Barones et tote la commune de Realm fuist notoriement trove que vostre piere vous Hugh fuâ—stez agardez TRAYTOURS enmys del Realm pur quel par assent commandment nostre Seigniour le Roy vostre Piere vous Hugh fuistez exules del Realm sanz james revenir si ceo ne fuist par lassent commmandment nostre Seignious le Roy ceo en playne Parlement duement al ceo summounz And for his returning into England against this Act and his manifold murders oppressions and misdemeanors since there recited at large he was condemned to be hanged drawn bowelled quartered and beheaded which was executed accordingly December 8. and his head fixed on a Poll and set upon London bridge The Repeal of the Spencers exile was not long after repealed and the Act for their exile re-confirmed in the Parliament of 1 E. 3. ch 1 2. in the Statutes at large which recites That they were exiled disinherited and banished out of the Realm by the Commons assent and award of the Peers and Commons of the Realm and by the assent of King Edward as Traytors and Enemies of the King and of his Realm And that he by the Common Counsel of the Prelates Earls Barons and other Great men and of the Commonalty of the Realm in his Parliament holden at Westminster did ordain and establish That the repeal of the said Exile which was made by Duress and force should be adnulled fâ—r evermore and the same exile made by the award of THE PEERS AND COMMONS BY THE KINGS ASSENT as aforesaid shall stand in its strength in all points after the tenour of every Article therein contained But this Act of repeal by the like power and assent was repealed as erronious and the heir of the Spencers restored to blood and Lands by the Parliament of 21 R. 2. Rot. Parl. u. 35. to 57. And that whole Parliament again repealed and nulled by 1 H. 4. c. 3. Cooks 4 Instit p. 25. This was the issue of this very first Attainder wherein the Commons concurred with the Lords being carried by force and power on all hands in those turbulent times In the Parliament of 11 R. 2. ch 1 2 3 4 5 6 7. in the Statutes at large Alexander Archbishop of York Robert de Vere Duke of Ireland Michael de la Pale Earl of Suffolk Robert Tresylien chief Justice R. Belknap with sundry other Judges Lawyers Knights Gentlemen Clergymen and other Commons and Prelates were impeached by the Duke of Glocester and other Lords Appellants of High Treason in 36 Articles thereupon attainted condemned judgement of death banishment forfeiture of their lands and estates given against them in Parliament by the Lords without the Commons After which the Lords exhibited a Petition to the King for the confirmation of the said Attainders and forfeiture Whereupon the King considering the matâ—er of the said Petition to be true at the request of the said Commons of the assent of the Prelates Dukes Earls Barons and all others of this present Parliament granted the request of the said COMMONS in all points after the form of the said Petition And moreover of the assent aforesaid passed sundry Acts touching their Attainders Judgements Exiles and forfeitures which all may peruse at leisure in the Statutes at large In the Parliament of 21 R. 2. upon the Petition of the Commons by the like assent c. 2. to 12. in the Statutes at large these Attainders Judgemens forfeitures and the whole Parliament of 11 R. 2. were repealed as erronious and nulled Yet after by the Parliam of 1 H. 4. c. 3. the Parl. of 21 R. 2. is nulled and that of 11 R. 2. revived and confirmed with all the attainders and Judgements therein given In the Parliament of 9 H. 6. c. 8. Owen Glendor formerly endited and attainted of high Treason for his grand insurrections and rebellions by the assent of the Lords spiritual and temporal and of the Kingâ— at the special request of the Commons was by special Act declared a Traytor and all manner of Indictments Inquisitions Processes Records Judgements Ordinances Statutes made against him authorized established for Law by assent of the Lords and Commons in Parliament In the Parliament of 29 H. 6. c. 1. The King by the advice of the Lords spiritual temporal and at the request of his Commons by a special Act attainted John Cade of several High Treasons for traytorously imanâ—ging the Kings death the destruction and subversion of this Realm in gathering and levying great numbers of the Kings people and them exciting to make insurrection against the King his regalty crown and dignity and to make and levy war falsly and trayterously against the King for which they confiscated all his Lands Tenements rents and possessions to the king corrupt and disable his blood for ever and enact him to be called a false Traytor within the Realm for ever And in 31 H. 6. c. 1. with the advise and assent of the Lords and at the request of the Commons it is ordained established that the said John Cade shall be reputed had named and declared a false Traytor to the king and all indictments and proceedings had and made under the power of his Tyranny were clearly repealed and adnulled for ever and to be of no effect but void in Law and put in oblivion and destroyed for ever as purposed against God and Conscience and the Kings royal estate and preheminence and also dishonourable and unreasonable In the Parliament held Anno 38 H. 6. rot Parl. n. 5. to 26. Richard Duke of York with sundry other Lords and Commons were attainted of High Treason by Bill for conspiring and levying war againâ—t the King And in the Parliament of 1 E. 4. rot Parl. n. 12 17. to 37 King Henry the 4 H. the 6 Queen Margaret Edward Prince of Wales Henry Duke of Somerset the Earl of Devonshire with sundry other Knights Esquires and Gentlemen Priests and Yeomen were attainted of High Treason by Bills for levying war against king Edward the 4. In the Parliament of 4 E. 4. rot Parl. n. 2. to 39. the Duke of Somerset Henry Beauford Sir Ralph Piercie with sundry other Knights Esquires and Gentlemen were attainted of High Treason by Bill for levying war against the king most of which attainders in the Parliaments of 12 E. 4. rot Parl. n. 15. to 36.13 E. 4. n. 45.14 E. 4. n 45.27 28 29 31 32.17 E. 4. n. 19 20 21 22. E. 4. n. 23 were repealed by Bills and the parties or their heirs restored to blood and Lands In the Parliaments of 14 E. 4. rot Parl. n. 34 35 36 37. Sir Richard and Sir Robert Wells John Vere Earl of Oxford Sir Thomas Vere with sundry more Knights and Gentlemen were attainted by Bill of High Treason for Levying war against the king and some of
of Attainders in cases of high Treason did not institute them Judges of these persons nor give them any share in the judicial right and power of Parliaments 1. Because most of these persons thus attainted by Bill were Queens Dukes Earls Lords Barons and Peers of the Realm who were triable to be judged only by their Peers none else by the Common Law of England Magna Charta c. 29. and sundry other Acts not by the Commons who are not their Peers 2ly Because most of these parties thus attainted by those Bills were first attainted tried judged condemned in Parliament by the Lords alone as their proper Judges upon the complaints or impeachments of the Lords Appellants or of the Commons themselves or else before some other Judges upon indictments and legal tryals and those Acts did only confirm and ratifie their precedent attainders recited in them 3ly Because in many of these Acts the Commons did only petition that their Attainders might be ratified by Bill and the King and Lords assents thereto which was done at their request as Petioners not Judges 4ly Because their Judgements and Attainders passed formerly by the Lords and Judges were good in Law though thus ratified afterwards by Bill for the greater terror certainty and satisfaction and these Bills did pass no new Judgements and Attainders upon the parties but only ratifie the old and in cases where there was no precedent Attainder they attaint them only by vertue of their Legislative power without any indictment tryal or hearing of the parties themselves as Judges of them some of them being dead when attainted taking all the charges in the Bills pro confesso and notoriously true and proved such by some other precedent legal convictions and evidences 2ly There is a formal proper Judgement given in our Parliaments both in criminal and civil causes upon complaints Articles Petitions Impeachments Inditements Informations Writs Appeals Reports References and that either against or concerning Peers themselves or against or concerning Commoners and other Laicks or Clergy-men And in all such cases proceedings the King and Lords alone have a proper judiciary power or right of Judicature without the Commons vested in and executed by them which I shall abundantly evidence and make good by sundry memorable Presidents out of our Histories and Records in all ages not vulgarly known and for the most part never yet remembred by any who have wriâ—ten of our Parliaments and the proceedings in them whose Treatises are very slight unsatisfactory and in many things of this nature erronious I shall begin first with presidents concerning Ecclesiastical Temporal Lords alone proceeded against impeached judged censured in our Parliaments for sundry criminal causes Offences Treasons wherin the House of Commons can challenge no share or voice in the Judicature especially in the case of Temporal Lords who are such in their own right and sit in Parliament ratione Nobilitatis but the Lords alone and that by the express Letter and Resolution of the Great Chariers of King John and of King Henry 3. and Ed. 1. c. 14.29.15 E. 3. c. 2 3 4. and roâ— Parl. n. 6.8.11 R. 2. rot Parl. n. 6 7.5 H. 4. rot Parl. n. 12.28 H. 6. ror Parl. n. 51 52 53. 20 H. 6. c. 9.26 H. 8. c. 13.28 H. 8. c. 7.18.31 H. 8. c. 12.32 H. 8. c. 4.33 H. 8. c. 12 20 23.35 H. 8. c. 2.1 Ed. 6. cap. 12. 1 Mar. c. 6.1 2 Phil. Mar. c. 3.4 5 Phil. Mar. c. 4.1 Eliz. c. 1.5.5 Eliz. c. 11.13 Eliz. c. 1.14 Eliz. c. 1 2 3. 18 El. c. 1.23 El. c. 1 2.27 El. c. 2.3 E. 3.19 Fit Corone 16â— 1 H. 4.1.10 E. 4.6 Brooke Trial 142. Stamford l. 3. c. 1. f. 152.33 H. 8. Brookâ— Trial 142.34 H. 8. Bro Corone 172.13 H. 8.11 Br. Treasons 29.38 H. 8. Br. Treasons 2.33 Dyer 99.107.208.360 Cook 6 Rep. f. 52.9 Rep. f. 30.87 and Cooks 2 Instit f. 28 29 48 49 50. and his 3 Instit c. 1. 2. p. 27 28 29.30 31. All which declare enact resolve That the Peers of this Realm shall not be tried or proceeded against but only by the lawfull judgement and verdict of their Peers The Lords and Barons of Parliaments trial by Peers alone of their own rank being so essential that they cannot waive nor put themselves upon the trial of the Country by 12. ordinary Freeholders as was resolved in the Lord Dacres case Pa. 26 H. 8. Cooks 3 Institutes f. 30. much less then can they waive their Peerage it self and sit as Commoners in the Commons house as I have formerly proved The first president I meet with in our Histories of this nature is in the reign of Cassibelan the British King who having repulsed Julius Caesar upon his first landing in this Island and forced him to return into France Edictum fecit ut omnes Proceres Britanniae convenirent to the City of â—roynovant now London where Evelin nephew to Androgens Duke of Troynovant slaying Heralgas nephew to Cassibelan upon a sudden quarrel as they were playing together Cassibelan thereupon commanded Evelin to be brought before him talem sententiam quam Proceres regni judicarent subire which Androgeus opposing â—aying sese suam Curiam habere in illa diffiniri debere quicquid aliquis in homines suos clamaret thereupon Cassibelan threatned to waste his Country with fire and sword if he refused to deliver up his Nephew to justice to undergo the sentencâ— quam Proceres dictarent which he accordingly executed for refusing to put his Nephew upon the Trial and Judgement of the Nobles for this murder The next president I find is that of Wilfrid Archbishop of York who for refusing to divide his Bishoprick into two Bishopricks more and for endeavouring to perswade Queen Emburga to become a Nun and desert her husband Egfrid King of Northumberland was through that Queens malice and prosecution in two several Parliamentary Councils Anno 678. 692. twice deprived of his Archbishoprick and banished the Realm by King Egfrid Theodor Archbishop of Canterbury and the rest oâ— the Bishops and Nobles of the Realm assembled in these Councils and at last restored to his Archbishoprick again in another Council An. 705. by King Osred his will and consent About the year of our Lord 924. Elfred a Nobleman who opposed Aethelstans title and election to the Crown though in vain intended to seise upon him at Winchester and put out his eyes but his Treason being discovered he was apprehended and sent to Rome to purge himself thereof by Oath where he abjuring the fact before the Altar of St. Peter in the presence of Pope John the 10th fell down suddenly to the ground as dead and being thereupon carried away thence to the English School he there expired within 3 dayes after The Pope acquainting the King therewith and craving his advice what to do with him and whether he should have Christian burial the King thereupon
against Judge Thorp should be brought into the Parliament and there read openly BEFORE THE LORDS to have every of their advice concerning it whether this Iudgement were legal or not et nullo contradicente all the Lords affirmed the judgement to be legal and good considering that he against his Oath received Bribes And therefore it was agreed by all the Lords that if the like case should hereafter happen the King might take to him such Nobles as he should think meet and therein do according to his pleasure Provided this judgement should not be drawn into example against any other Officers who should break their Oaths but only against those qui praedictum Sacramentum fecerunt of Justices et fregerunt et habent leges Regales Angl. ad custod Here the Lords were sole Judges of the Judge who was a Commoner and gave judgement against him without the Commons yea declare the Law in this new case both in and out of Parliament In the Parliament of 21 E. 3. n. 68. The Commons by divers Bills complained to the Lords of divers extortions grievances prejudices done to the King and Commons by John Wattenham and Walter de Cheriton Merchants who desired the King would command them to come before THE COUNCIL LORDS in Parliament to answer what should be objected and clear themselves In the Parliament of 50 E. 3. n. 17 18 19 20. The Commons accused Richard Lyons Merchant of London of divers deceits extortions and misdemeanors whiles he was farmer of the Customs and last subsidy for transporting wools and staple Commodities procuring new Impositions on staple ware for buying debts from the Kings Creditors at under rates and making the King to pay the whole for taking of bribes and defrauding the King To some of which charges he answered and to the rest submitted himself to the King touching Body Lands and Goods Whereupon THE LORDS adjudged him to prison during the Kings will that his lands tenements and goods should be seised to the Kings use that Commissions should issue throughout all England to inquire of his Extortions whiles farmer of the subsidies and that he should be disfranchised Upon this Judgement in the Fine Roll of 50 E. 3. m. 19 21 22. there issued out writs for the arresting and selling the goods of Richard Lyons to the Kings use which were his on the 19 of March certis de causis coram Nobis et Concilio nostro in praesenti Parliamento nostro propositis c. per Concilium in Parliamento The same Parliament 50 E. 3. n. 31 32. William Ellis of great Yarmouth was accused by the Commons of sundry extortions whiles he was Deputy Farmer of the kings subsidie to Richard Lyons To which he seemed sufficiently to answet yet was BY THE LORDS adjudged to prison and to make a fine at the Kings pleasure Ibidem Num. 33. Iohn Peach of London was impeached by the Commons for procuring a license under the Great Seal that he only might sell sweet wines in London by colour whereof he took 4 s. 4 d. of every man for every Tun thereof sold which he justified he lawfully might doe Notwithstanding JUDGEMENT was given against him by THE LORDS that he should be committed during the Kings pleasure and make recompense to all parties grieved Num 37. Adam de Bury was accused of divers deceits and wrongs done by him whiles Mayor of Callice and Captain of Bellingham Being sent for to come to the Parliament he came not nor could he be found Thereupon the Lords agreed that all his goods and chattels should be arrested and so they were All these Commons were first impeached by the Commons and thus judged and censured by THE LORDS in this GOOD PARLIAMENT as Historians and others stile it And in the Commons petitions therein there are divers Petitions of Grievances from sundry Counties Towns persons complaining of wrongs and grievances presented to the King and Lords for redresse of oppressions extortions Monolies c. In the Parliament of 1 R. 2. n. 41 42 43. Dame Alice Pâ—etrees was brought before THE LORDS by Sir Richard Scroop Knight and there charged for pursuing matters at the Court contrary to an Order made in the Parliament of 50 E. 3. n. 35. and procuring King Edward to restore Richard Lyons to his lands and goods c. she denied she pursued any such thing for singular gain against that Ordinance whereupon diverse Officers Counsellers and Secretaries of king Edward 3. were examined against her who proved she made such pursutes and that for private gain in their conceits Whereupon the Lords alone without the Commons gave Iudgement against her that she should be banished according to the order aforesaid and forfeit all her Lands Goods and Tenements to the King The same Parliament 1 R 2. n. 32 33. The Lords committed William Fitz-Hugh Goldfiner and Citizen of London to the Tower for refusing to averr a Petition exhibited by him in the name of the poor Commonalty of that mystery complaining against John Chichester and John Bolcham of the same mystery of divers oppressions done by them to the said Commonalty In this very Parliament of 1 R. 2. n. 38 39 40. The Commons prayed that all those Captains who had rendred or lost Castles or Towns through default might be put to answer it in this Parliament and severely punished according to their deserts BY AWARD or Judgement OF THE LORDS and BARONS to eschew the evil examples they had given to other Governors of Towns and Castles Whereupon Sir Alexander de Buxton Constable of the Tower was commanded to bring BEFORE THE LORDS IN PARLIAMENT William de Weston and Lord of Gomynes both of them Commoners on Friday the 27 of November to answer such Articles as should be surmised against them on the Kings behalf Being brought BEFORE THE LORDS in full Parliament they were severally articled against at the command of THE LORDS by Sir Richard le Scrop Knight Steward of the Kings House and their several Articles and answers to them in writing read before THE LORDS Which done the Constable was commanded to bring them again before THE LORDS on Saturday next ensuing being the 20 of November on which day it was shewed unto them severally by the said Steward by THE LORDS COMMAND That THE LORDS OF THE PARLIAMENT whose names are particularly mentioned in the Roll had met together and considered of their respective answers and that IT SEEMED TO THE LORDS AFORESAID that the said William had delivered up the Castle of Onâ—herwycke to the Kings enemies without any duress or want of victuals contrary to his allegiance and undertaking safely to keep it and therefore the Lords above-named sitting in full Parliament adjudge you to death that you shall be drawn hanged But because our Lord the King is not informed of the manner of the Judgement the execution of it shall be respited till the king be thereof informed After which Judgement given
the King wherein he accused Sir William Cogan knight for extorting 300 l. by menaces from the Prior of St. Iohns Sir William appearing upon Summons prayed Counsel which was denied for that it concerned Treason whereupon he pleaded Not Guilty After which the same Parliament n. 46. to 61. The Mayor Baylifs and Commonalty of Cambridge were accused before the King and Lords that in the late insurrection they confederating with other Malefactors did break open the Treasury of the University of Cambridge burn sundry Charters of the University and compel the Chancellor and Scholars under their common Seal to release to the said Mayor and Burgesses all manner of Liberties real and personal actions and also to become bound to them in great sums of money Whereupon special writs were directed to the Mayor Baylifs and Commonalty to appear in Parliament to answer the premises The Mayor and Baylifs appear in person and plead that they 〈◊〉 not privy to any such act but if any thing was done it was by compulsion by others which the Kings learned Counsel disproved whereupon they pleaded Not Guilty The Commonalty appeared by Attorney and delivered in the Release and Bond of the University complained of under their Seal which were ordered to be cancelled After which the Chancellor and Scholars of the University exhibited Articles against the Mayor and Baylifs shewing their whole carriage and discourse in this tumult Upon reading whereof it was demanded of them in the Kings behalf What they could say why their Liberties lately confirmed should not be seised into the Kings hands as forfeited They thereupon required a Copy of the Articles Councel and respite to answer To the Copy of the Bill it was answered by the Lords that seeing they had heard it read it should suffice for by Law they ought to have no Copy For Councel it was said That to such articles if any were wherein Councel was to be had they should have it otherwise not Wherfore they were then appointed to answer to no crime or offence but only to their Liberties To which they answered by their Council That this Court ought not to have any Conusance or Jurisdiction of them for certain causes then alleged But at last they were ordered to say what they could otherwise they would give Iudgement against them as those who had nothing to say Whereupon they pleaded they did nothing but by Duress and constraint of the Rebels At last after many dilatory shifts touching their Liberties they wholly submitted themselves to the Kings mercy and grace saving their answer to other matters The KING therefore by the assent of the Prelates and Lords in Parliament â—o is the Rolâ— seised their Liberties into his hands as forfeited and by assent of the Lords and Prelates in Parliament granted to the Chancellor and Scholars the Assise and correction of bread weights measures and forestallers and fines thereof within the Town and Subâ—rbs of Cambridge which the Townsmen had before The King Lords and Prelates being Judges and giving the Judgement in this case of Commoners as the record a â—ge attests Walsingham relates that in a Parliament holden at London this year about the feast of St. John upon the Petition of the knights of Shires John Straw Captain of those in the insurrection at Bury and Myldenhale tractationi et suspentioni ADJUDICATUR to wit by the King and Lords licet multi putassent eum fuisse pecunia redimendum In the 7. year of R. 2. Rege vocante congregati sunt multi de Nobilibus Regni apud Rading to restrain the seditious motions of John de Northampton late Mayor of London qui ingenia facinora nisus est de quibus et convictus est ibidem his familiar Clerk accusing him both of divers practises and designes projected by him as well to the prejudice of the King as of the whole City of London and objecting them against him When Judgement was to be given against him in the Kings presence he pleaded that such a Judgement ought not to be given against him in the absence of the Duke his Lord whereby he raised a sinister suspition as well in the people AS NOBLES against the Duke of Lancaster The Justice who was to pronounce the Judgement told him He ought to refute his charge by Duel or by the Laws of the Realm to submit himself to drawing hanging and quartering At which when he stood mute and said nothing DECRETVM EST ut perpetuo carceri tradiretur et eâ—us bona regis usibus confisâ—arentur ut Londonias non appropinquaret per centum miliaria in vita sua whereupon he was sent prisoner to Tyntagel Castle in Cornwall and his goods seised on by the Kings Officers In the Parliament of 7 R. 2. holden at Westminster the Monday next before the feast of All Saints num 17. Bryers Cressingham and Iohn Spicâ—worth Esquires were accused before the LORDS for surrendring the Castle of Drinkham in Flanders to the kings enemies for money without consent of the kings Lieutenant Spickworth proved that the same was not in his custody and thereupon he was discharged Cressingham pleaded that he yeelded the same upon necessity without money and submitted himself to the Lords order who thought this no good cause and therefore committed him to prison The same Parliament n. 24 25. Sir William de Elinsham Sir Thomas Trivet Sir Henry de Ferriers and Sir William Farnden knights and Robert Fitz-Ralph Esquire were accused before the Lords in Parliament for selling the Castle of Burburgh with all the arms ammunition and provisions therein to the French the kings enemies for sundry summs of gold received by them of the French without authority from the king or his Lieutenant who pleaded they surrendred it for salvation of themselves and their people c. After all their excuses made they were upon consideration adjudged insufficient by the Lords and the Chancellor by their order pronounced this Judgement against them That they should repay all the monies they received from the Enemy to the King be committed to prison ransomed at the Kings will and moreover that Sir Will. de Farnden being the greatest Offender should be at the Kings mercy both for body and goods to do with them as he pleaseth In this Parliament there was a Duel fought between John Walsh an English Esquire and one of Navarr who accoused him of Treason against the King and Realm effectually but yet falsly out of envy Walsh having layen with his wife whiles he was under Captain of Cherburgh as he afterwards confessed This Dueâ— was fought within the lists in the presence of the King and Nobles of the Realm where this Navarrois being vanquished by Walsh REGALI JVDICIO tractus et suspensus est quanquam Regina et plures alii pro eo preces sedulas porrexissent In the 2. of Parliament of 7 R. 2. n. 13.10 19. John Cavendish a Fishmonger of London praying Surety of the peace
spiritual Cour◠for a temporal cause belonging to the Crown and Common Law which was adjudged by the Lords upon examination to be untrue To passe by the accusation of Sir Philip Courtney of divers hainous matters oppressions dissensions before the King and Lords in the Parliament of 16 R. 2. n. 6.13 14. of which more anon In the Parliament of 17 R. 2. n. 20 21. John Duke of Lancastre Steward and Thomas Duke of Gloucester Constable of England complained to the King that Sir Thomas Talbot Knight with other his adherents conspired the deaths of the said Dukes in divers parts of Cheshire as the same was confessed and well known and prayed That the Parliament might judge of the fault Whereupon the King and the Lords in Parliament without the Commons adjudged the said fact to be open and High Treason And thereupon they awarded two Writs to the Sherifs of Yorks and of Derby to take the body of the said Sir Thomas retornable in the Kings Bench in the month of Easter next ensuing And open Proclamation was made in Westminster Hall That upon the Sherifs retorn and at the next coming in of the said Sir Thomas he should be convicted of Treason and incurr the loss and pain of the same and that all such who should receive him after the Proclamation should receive the like losse and pain In the Parliament of 20 R. 2. n. 15 16 23. Sir Thomas Haxey Clark was by the King Lords in Parl. adjudged to die as a Traytor and to forfeit all his Lands Goods Chattels Offices and Livings for exhibiting to the House of Commons a scandalous Bill against the King and his Court for moderating the outragious expences of his Court by Bishops and Ladies c. Upon the Bishops intercession the King spared his life and delivered him into the custody of the Archbishop to remain as his Prisoner In the Parliament of 21 R. 2. n. 19 20. Pl. Parl. n. 2. to 15. The Lords Appellants appealed Sir Tho Mortimer Knight of High Treason for raising war against the King accroaching royal power and purposing to surrender his homage and allegiance and depose the King Who flying into the parts of Ireland thereupon the Lords in Parliament assigned him a certain day to come and render himself to the Law or else to be adjudged and proceeded against as a Traytor and Proclamation thereof was made accordingly in England and Ireland to render himself within 3 months And that after that time all his Abettors and Aiders should be reputed for and forfeit as Traytors He not coming at the day The Duke of Lancaster Steward of England by assent of the Lords in Parliament adjudged him a Traytor and that he should forfeit all his Lands in fee and see tayl together with all his Goods and Chattels The like Judgement in like manner was in the same Parliament given against Sir John Cobham Knight for the like Treason Placit Coronaen 16. On the 22 day of March 22 R. 2. n. 27. The King by assent of the Lords adjudged Sir Robert Plesington Knight then dead a Traytor for levying war against him with the Duke of Glocester at Harrengary for which he should lose all his Lands in fee or fee tayl and all his goods And n. 28. Henry Bowht Clerk for being of Counsel with the Duke of Hereford in his device was adjudged by the King and Lords to die and forfeit as a Traytor after which his life was pardoned and he banished In the Parliament of 1 H. 4. n. 79. As the Commons acknowledged that the Iudgements in Parliament had always of right belonged to the King and Lords and not unto the Commons So therein the King and Lords alone without the Commons gave Judgement in sundry cases as Judges in Parliament 1. In Sir Thomas Haxey his case who in his own name presented a Petition in this Parliament a nostre tresedoute seigniour le ROY a LES SEIGNIORS DU PARLIAMENT shewing that in the last Parliament of 21 R. 2. that he delivered a Bill to the Commons of the said Parliament for the honour and profit of the said King and of all the Realm for which Bill at the will of the King he was by the King and Lords adjudged a Traytor and to forfeit all that he had praying that the record of the said Judgement with the dependants thereupon might be vacated and nulled by them in this present Parliament as erronious and that he might be restored to all his degrees farms estate goods chattels ferms pensions lands tenements rents offices advow sons and possessions whatsoever and their appurt and enjoy them to him and his heirs notwithstanding the said Iudgement or any grant made of them by the King The Commons House exhibited a Petition likewise on his behalf to the like effect adding that this judgement given against him for delivering this Bill to the Commons in Parliament was eneontre droit et la course quel avoit estre use devant in Parlement en anientesment des Customs de◠le◠Communes Upon which Petitions Nostre Seignior le ROY de Induis assent des touz les Seigniors esperituelz et temporelz ad ordinez et adjudges que le dit juggement renus vers le dit Thomas in Parlement soit de tout casses revorses repellez et adnullez et tenus pur nul force n'effect et que le dit Thomas soit restitut a ses nom et fame c. nient obstant mesme le juggement 2ly In the case of Judge Rickhill 1 H· 4. n. 92. On the 18 of November the Commons prayed the King that Sir William Rickhill late Just of the Common Bench arrested for a Confession he had taken of the Duke of Gloucester at Calice might be brought to answer for it devant les Seigniors du Parlement whereupon he was brought into Parliament before the Kings presence and all the Lords spiritual and temporal and Commons assembled in Parliament where Sir Walter Clapton Chief Justice of the Kings Bench by the kings command examined the said Sir William how and by what warrant he went to Calice to the said Duke of Glocester and upon what message Who answered that king Richard sent him a special Writ into Kent there recited verbatim commanding him by the faith and allegiance whereby he was obliged to him and under pain of forfeiting all he had to goe unto Caleys And that at Dover he received a Commission from the said king by the hand of the Earl Marshal to confer with the Duke of Glocester and to hear whatsoever he would say or declare unto him and to certifie the king thereof in proper person wherever he should be fully and distinctly under his Seal Whereupon he went thither and took the said Dukes Examination in writing according to the purport of the said Commission a Copy whereof the Duke himself received c Upon the hearing of his answer and defence
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
by their Speaker acknowledge the right of judicature in the case of a Commoner to be only and wholly in the Lords even in a criminal cause and thereupon pray the Lords to give judgement against him upon their Impeachment which they did accordingly in their robes as Judges by the mouth of the Lord Keeper their Speaker In this very Parliament now sitting Decemb. 21. Jan. 14. Febr. 11. 1640. and July 6. 1641. The Commons House by their Members impeached Sir John Bramston Chief Justice of the Kings Bench Sir John Finch Chief Justice of the Common Pleas Sir Humphry Davenport Chief Baron Judge Berkly Judge Crawly Baron Weston and Baron Trever of high Treason and other misdemeanors for that they had trayterously and wickedly endeavoured to subvert the fundamental Laws and established Government of the Realm of England and instead thereof to introduce an arbitrary and tyrannical Government against Law which they had declared by trayterous words opinions and judgement in the point of SHIP MONY by their subscriptions and judgement given against them in the case of Mr. Hamden in the Exchequer Chamber Which Impeachments they transmitted to the Lords House praying THE LORDS to put them to answer the premises and upon their examinations and trial to give such judgement upon every of them as is agreeable to Law and Justice To avoid which judgement Sir John Finch fled the Realm and the rest of them made fines and compositions to the publike and were most of them removed from their Judges places After this the Lords themselves as Judges in Parliament passed several judgements and censures against Dr. John Pocklington for his Sunday no Sabbath and other Books and against Dr. Bray for licensing them In October 1643. The Lords fined and imprisoned Clement Walker Esq in the Tower for some scandalous words against the Lord Viscount Say a Member of he House of Peers After that the Lords alone without any Impeachment of the Commons on their privity imprisoned fined and censured one Morrice upon complaint of Sir Adam Littleton after a full hearing at which I was present for forging an Act of Parliament with four or five more of his confederates therein which was most clearly proved by Witnesses upon Oath whereby he would have defrauded Sir Adam of some Lands in Essex And at least one hundred more Commoners have been committed by THE LORDS this Parliament and fined by them for several offences Misdemeanors and Breaches of their Privileges as well as Lilburn and Overton yet none of them ever excepted against or demurred to their Jurisdiction nor did the Commons House ever yet except against them for these their proceedings as injurious or illegal but approved and applauded this their Justice Finally John Lilburn himself in his printed Pamphlet intituled Innocency and Truth justified p. 74 75. relates that on May 4. 1641. himself was accused of High Treason and brought before the Lords Barr for his life where one Littleton swore point-blank against him But he having Liberty given to speak for himself without any demurring to their Jurisdiction because we was a Commoner desired that his Witnesses might be heard to clear him was upon Mr. Andrews Oath acquitted at the Barr of the whole house And thereupon concludes I am resolved to speak well of those who have done me JUSTICE From all these punctual successive presidents impeachments and clear confessions of the Commons House themselves in many former and late Parliam and in this now sitting it is undeniable That the King and Lords joyntly and the Lords severally without the King have an indubitable right of Iudicature without the Commons vested in them not only over Peers themselves but likewise Commoners in all extraordinary criminal cases of Treason Felony Trespass and other Misdemeanors triable only in Parliament which hath been constantly acknowledged practised submitted to in all ages without dispute much more then have they such a just judicial rightfull power in cases of breach of their own privileges of which none are or can be Judges but themselves alone as Sir Edw. Cook resolves they being the supremest Court. And to deny them such a power is to make the Highest Court of Judicature in the Realm inferiour to the Kings Bench and all other Courts of Justice who have power to judge and try the persons causes of Commoners yea to commit and fine them for contempts and breaches of their Privileges as our Law books resolve and every mans experience can testifie The Lords right of Iudicature both over Peers and Commoners in criminal causes being thus fully evicted against the falseâ— ignorant pretences of illiterate Sectaries altogether unacquainted with our Histories and Records of Parliament which they never yet read nor understood there remains nothing but to answer some Authorities Presidents and Objections produced against it These presidents in Sir Edward Cooke Sir Robert Cotton and others are of 3 Sores 1. Such as are produced by them only to prove that the Commons have a Copartnership and joynt Authority with the King and Lords in the power and right of Judicature in our Parliaments 2ly Such as are objected to evidence they have a sole power of Judicature in themselves in some cases without the K. and Lords 3ly Such as are urged to prove they have no right of Judicature in Parliament in the cases of Commoners that are capital or criminal I shall propose and answer them all in order 1. Sir Edward Cook and Sir Robert Cotton produce these presidents to prove That the Commons have a Joint inâ—erest right and share with the King and Lords in the Iudicatory or Judicial power of Parliaments which I shall propound according to their Antiquity The 1. President alleged for it is that of Adomar Bishop of Winchester elect cited by Sir Robert Cotton in his Post-humous Discourse concerning the Power of the Peers Commons in Parliament in point of Iudicature who An. 44 H. 3. as affirms he was then exiled by the Ioint Sentence of the King Lords and COMMONS as appears by the Letter sent to Pope Alexander the 4th Si Dominus Rex et Regni Majores hoc vellent meaning Adomars revocation COMMUNITAS tamen ipsius ingressum jam nullatenus sustineret The Peers subsign this answer with their names and Peter de Moâ—tfort vice totius COMMUNITATIS as Speaker or Proctor of the Commons I answer under the favour of this renowned learned Antiquary that this president is full of gross mistakes For 1. Bishop Adomar was not banished the Realm at all either by King Lords or Commons but fled out of it voluntarily for fear to avoid the Barons who purâ—iâ—ed him with forces as Mat. Paris with others relate which the Nobles and Generality of the Barons in direct terms inform this Pope in another Letter sent together with this objected Maxime cum ipse a regno expuisus non extiterit sed sponte cesserit non ausus exhibitionem justiâ—iae quae
but by Bill The 8th President that may be objected is this Adam de Arleton or Tarlton Bishop of Hereford in a Parliament held at London Anno 1322. was apprehended by the Kings Officers and brought to the Bar to be arraigned for Treason and Rebellion in aiding the Mortimers and others in their wars with men and arms where having nothing to say for himself in defence of the crimes objected and standing mute for a space at last he flatly told the King That he was a Minister and Member of the Church of Christ and a consecrated Bishop though unworthy therefore I neither can nor ought to answer to such high matters without the consent of my Lord Archbishop of Canterbury my direct Judge next after the Pope and of the other Fathers the Bishops my PEERS At which saying the Archbishops and Bishops there present rose up and interceded to the King for their Colleague and when the King would not be intreated they all challenged the Bishop as a Member of the Church exempt from the Kings Justice and all secular judicature The King forced thereunto by their claimors delivered him to the Archbishops custody to answer elsewhere for these crimes Within few days after being apprehended again and brought to answer before the Kings royal Tribunal in the Kings Bench at Westminster for his Treasons the Archbishops of Canterbury York and Dublin hearing of Tarltons arraignment came with their Crosier staves carried before them accompanied with 10 Bishops more and a great company of men entred into the Court and by open violence rescued and took away the Bishop from the Bar before any answer made to his charge chasing away the Kings Officers and proclaiming openly That no man should lay violent hands on this Trayterly Bishop upon pain of excommunication and so departed The King exceedingly incensed at this High affront to Justice and himself commanded an Inquest to be impanelled and a lawfull inquiry to be made of the Treasons committed by the Bishop in his absence being thus rescued from Justice The Jury without fear of the King or any hatred of the Bishop found the Bishop guilty of all the Articles of Treason and Rebellion whereof he was indicted Whereupon the King banished the Bishop seised all his temporalties lands and goods But yet notwithstanding the Bishop by consent of all the Prelates was by strong hand kept in the Archbishops custody till he had reconciled him to the King After which by way of revenge he was a principal instrument of the Kings deposing and murther which having effected in the Parliament of 1 E. 3. 6. this Bishop petitions that the Indictment and Iudgement against him and the proceedings therein might be brought into Parliament and there nulled as erronious which was done accordingly Et quia recitatis et examinatis coram nobis et consilio nosâ—ro recordo et processu praedictis Et etiam coram Praelatis Comitibus Baronibus Magnatibus tota communitate regni nostri praesenti Parliamento nostro praesentibus compertum fuit quod in eisdem recordo et processu errores manifesti intervenerunt per assensum totius Parliamenti adnullatur and so he had restitution I answer that as this rescue of proceeding and judgement against this trayterous Bishop were singular So is this repeal and reversal of it as erronious before and by all the Commons and whole Parliament as well as King Prelates and Nobles and that no doubt at the special instance of this and all the other Bishops highly concerned in this cause Wherefore this one Swallow makes no Summer and proves no judicial authority joyntly with the King and Lords since they never joyned with them before nor since in reversing of any such error upon Judgement in the Kings Bench but only where an erronious Attainder by Bill in one Parliament was reversed by Bill in another The 9th is the Clause of King Edward the thirds Letter to the Pope in the 4th year of his reign already answered p. 274. The 10th is Sir John at Lees case 42 E. 3. n. 20. said to be ADJVDGED by the Lords and COMMONS I answer this Case is somewhat mâ—staken For the Record only mentions That the 21 day of May the King gave thanks to the Lords and Commons for their coming and aid granted on which day all the Lords and sundry of the Commons dined with the King After which dinner Sir Iohn at Lee was brought before the King LORDS COMMONS next aforesaid who dined with the King to answer certain objections made against him by William Latymer about the wardship of Robert Latymer that Sir John being of power had sent for him to London where by duresse of Imprisonment he inforced the said William to surrender his estate unto him which done some other Articles were objected against the said Sir John of which for that he could not sufficiently purge himself HE was committed to the Tower of London there to remain til he had made fine and ransom at the Kings pleasure and command given to the Constable of the Tower to keep him accordingly And then the said Lords and Commons departed After which he was brought before the Kings Councel at Westminster which COUNCEL ORDERED the said ward to be reseised into the Kings hands So as this record proves not that this judgment was given in the Parliament house nor that the Lords and Commons adjudged Sir Iohn but rather the King and his Councel in the presence of the Lords and Commons after the Parliament ended The 11 12 13. Are the cases of the Lord Latymer Lord Nevil and Richard Lyons forecited Here p. 283 284 350. which are nothing to purpose the Lords alone giving judgement in them without the Commons who did only impeach them and the King removing the Lord Latymer from his Council at their further request So that these 3. cases refute their opinions who object them The 14. is the Case of Weston and Gomines 1 R. 2. n. 38 39. In which the Lords alone gave the Judgement as I have proved p. 332 333 Therefore pointblank against the Objectors The 15. president is that of Iohn Kirby and Iohn Algar two Citizens of London in the Parliament of 3 R. 2. n. 18. who conceiving malice against John Imperial an Ambassador sent hither from the State of Genoa who had procured a Monopoly to furnish England with all such wares as come from the Levant keeping his staple at Southampton killed him in London upon a sudden quarrel picked with him for which they being committed this being a new and difficult case and the Judges being in doubt whether it were Treason or no it was thereupon propounded in Parliament according to the Statute of 25 E. 3. c. 2. like that of 25 E. 3. Parl. 2. of those who are born beyond the Seas 14 E. 3. c. 5. 13 E. 1. c. 24.32 E. 1. rot 17. 22. Claus 46 H. 3. n. 3. Claus 14
E. 2. dors 17. 17 E. 3. n. 24.21 E. 3. n. 60.40 E. 3. n. 14 15.14 E. 3. n. 30 31.1 R. 2. n. 95.1 E. 3. f. 6 7.39 E. 3.21 a. 40 E. 3.34 b. Cook 8 Rep. f. 158.3 Instit p. 6 7.4 Instit p. 67 c. 2 Instit p. 408. West 2. c 24. and Bracton l. 2. c. 16 l. 3. c. 9. Fletae l. 2. c. 6. resolving that all difficult causes are to be declared to and determined in and by Parliaments This case being examined and debated by and between the Lords and Commons was afterwards there declared bâ—fore the King and determined and agreed That this fact and murder is Treason and a crime against the Kings Majesty in which case no privilege of Clergy ought to be allowed to any man Whereupon 7 R. 2. rot 8. Kirby and Algar were attainted of High Treason in the Kings Bench and executed as Traitors Walsingham writes this Parliament was held at Northampton against the consent of most of the Realm but especially against the will of the Londoners that so revenge might be taken upon Kirkeby for this murder they fearing that if the Parliament were held at London the Londoners would not suffer him to be executed without some danger to those who condemned him whereupon he was condemned drawn and executed at Northampton To this I answer first That Kirby and Algar were not impeached arraigned tried or condemned in Parliament for this Treason but in the Kings Bench for if they had the Lords only had judged and given sentence against rhem as in all the premised cases 2ly Their case being new was thought fit to be propounded to the Commons by the Kings direction as well as to the Lords who upon debate agreed it to be Treason 3ly When it had been debated it was declared and finally resolved and agreed before the King in full Parliament and that by Bill and the Legislative not Judicial power as Mr. Sâ— John informs us Therefore it makes nothing for the Commons right and power of Judicature which after all these presidents all the Commons in the Parliament of 1 H. 4. n. 79. confess to have been alwayes of right in the King and Lords and not in them which sways away all the forecited presidents at once as impertinent and misapplied For the presidents of 21 R. 2. n. 29. 2 H. 5. n. 13 28 H. 6 n. 19. misrecited by Sir E. Cook 4 Instit p. 23. 3 Inst p. 22. they are already answered p. 296 297 299 344. And for those of Sir Giles Mompesson Sir Iohn Michel Viscount St. Alban and the Earl of Middlesex himself confesseth and I have here cleared p. 303 304. that the notable Iudgements against them were given by the Lords at the prosecution of the Commons who were only their prosecutors not Iudges These are all the Presidents I finde that are objected to give the Commons a share with the King and Lords in the Judicature in our Parliaments which evince it not but clearly disprove it The 2. sort of Presidents insisted on by Sir Ed. Cook are to prove a Judicial Authority in the House of Commons alone without the Lords in cases of their own Members and Servants in matters of elections breach of Privilege or misdemeanors in the Commons house for which they have imprisoned and sometimes fined Serjeants Baylifs Sherifs committed their own Members adjudged their elections void suspended excluded ejected them the house The 1. ease is that of Muncton 2 Aprilis 1 Mariae committed by the Commons to the Tower for striking William Iohnson a Burgess The 2. of Thomas Lucy 8 Eliz. removed out of the House for giving 4 l. to the Mayor of Westbury to be chosen a Burgess and the Maior fined and imprisoned The 3 of Arthur Hall 23. Eliz. who for discovering and publishing the Conferences of the House and writing a Book to the dishonour of the house was committed to prison These matters were examined and adjudged in the House of Commons Secundum legâ—m Consuetudinem Parliamenti and he thereupon committed to the Tower for 6. Moneths fined 500 marks and expelled the House And in that Parliament 18 Martii a fine was assesâ—ed by the House on every Member that was absent without leave To these alleged by Sir Edw. Cooke I shall superadd the ensuing Sir Robert Brandling was committed to the Tower 27 Eliz. for striking Witheâ—ington a Burgess 3 Jacobi one was fined for causing a Members Servant to be arrested though he claimed his privilege 12 Jacobi Locke and More were ordered by the Commons to ride both on one horse with their faces to the horses tail for arresting a Servant of Mr. Whitlocks then a Member against his privilege which was accordingly executed In 2 Caroli Sir George Hastings being elected knight for Leicestershire and he then being arrested his witnesses had their charges given them against the Sherif and he fined In the Parliament of 3. Caroli Sir Thomas Savils case 29. April 1628. Thomson Sherif and Henloe Alderman of York for abuses in the election were ordered to be committed to the Serjeant of the House during the pleasure of the Commons House to acknowledge their offences at the Barr on their knees and pay all due fees and to make a submission in York In 3. Caroli Mr. John Baber was suspended the house about billetting Souldiers In 3. Car. the Commons house committed Mr. Laughton and Mr. Trelawny to the Tower during pleasure and Sir William Wray and Mr. Edward Trelawny to the Serjeant at Arms and ordered them to make a submission acknowledgement of their offences in the House at the Bar and in the County at the Assises they kneeling at the Barr all the while the Speaker pronounced the Judgement against them for writing menacing Letters to Sir John Elliot and Mr. Coriton and to others of the County of Cornwall disturbing their election and contemning the warrant of the House when sent for In this Parliament of 17 Caroli now sitting the Commons house turned out sundry Members who were Projectors and voted out many others for Delinquency ordering New elections in their places without the King or Lord. I answer 1. That all these objected presidents are of very puny date within time of memory therefore unable to create a Law or custom of Parliament or any right of sole Judicature in the Commons House 2ly They were all made by the Commons themselves unfit Judges in their own cases much less over one another being all of equal Authority and so unable to seclude imprison or fine one another no more than one Judge or Justice to fine imprison or uncommission another since Par in parem non habet imperium 3ly They are all against Law because coram non Judice the Commons House having no right or power of Judicature much less of sole Judicature in our Parliaments but only the King and Lords as I have formerly proved by reasons and presidents in all ages 4ly These
4. n. 19 20 21. upon these and other Petitions of forcible disseisins and for imprisoning the Abbot of Meniham in Devonshire THE KING LORDS adjudged that this Sir Philip Courtney should be bound to his good behaviour and committed to the Tower for his contempt From which records it is evident First that Members of the Commons house may be complained and petitioned against for misdemeanors and put to answer before the King and Lords in Parliament and there fined and judged not before the Commons house and that this was the antient way of proceeding Secondly that the Commons cannot suspend or discharge any of their fellow-Commoners or Knights from sitting in Parliament but only the King and Lords in full Parliament in whom the power of Judicature rests much less then can they expell or eject any of their Members by their own authority without the King and Lords concurrent consents No more than one Justice of peace Committee-man or Militia-man can un-Justice or â—move another since Par in parem non habet Imperium neither in civil military ecclesiastical nor domestical affaiâ— Thirdly that the power of restoring readmitting aâ—ended Member of the Commons house belongs not to the Commons themselves but to the King and Lords to whom the Commons in this case addressed themselves by petition for Courtneys readmission after his submission of the complaints against him to the arbitrement of those Members to whom the King and Lords referred the same In the Parliament of 17 Rich. 2. num 23. It was accorded and resolved by the King and Lords at the Complaint petition request of the Commons that Roger Swinerton who was endited of the death of one of their companions Iohn de Ipstones Knight of the said Parliament for the County of Stafford slain in coming towards the said Parliament by the said Roger should not be delivered out of prison wherein he was detained for this cause by bail mainprise or any other manner until he had made answer thereunto and should be delivered by the Law The Commons alone by their own power having no authority to make such an order even for the murther of one of their own Members without the King and Lords who made this ordinance at their request I find this objected against King Richard the 2. in the Parliament of 1 H. 4. n. 37. That he frequently sent his Mandates to Sherifs to return certain persons named only by himself and not freely chosen by the people to be knights of Shires thereby to effect his own ends and oppress the people with Subsidies But yet I find not in all his reign any one Knight thus unduly returned questioned by the Commons or suspended the House much less ejected by them or by the King and Lords upon the Commons complaint thereof unto them A clear evidence they had then no such power to eject their Members for being unduly elected returned as how they use In the Parliament of 20 R. 2. n. 14 15 16 17. The King being highly offended with the Commons for receiving Haxyes Bill said that the Commons thereby had committed an offence against him his dignity and liberty the which he willed THE LORDS to declare the next day to the Commons Who thereupon delivering up the Bill came fort with before the King shewing themselves very sorrowfull declaring to him that they meant no harm and submitting themselves to the King herein most humbly craved his pardon Whereupon the Chancellor by the Kings commandment declared That the King held them excused and the King by mouth declared how many wayes they were bound unto him Lo here the whole House of Commons submit themselves to the King in the House of Lords as Judges of them and their misdemeanors in Parliament and crave pardon for offending him In the Parliament of 2 H. 4. n. 45 46. The Commons house petitioning the King that the Act for his moderation of the Statute against Provisions might be examined for as much as the time was recorded otherwise than was agreed by them The King granted thereunto by protestation that the same should be no example where after Examination by the Bishops and Lords they affirmed the same to be duly entred which the King also remembred Whereupon the COMMONS the same day for this their misinformation came into the Lords House and knéeling before the King beseeched the King to pardon them if happily they through ignorance had or should offend him which the King granted Here the Bishops and Lords are Judges of the Commons misinformation misentry of an Act and the King of their Offence against him in Parliament by this misinformation which he pardons them upon their humble submission and no doubt might have punished them for it by the Lords assent and advice had he pleased So farr are they from being Judges in Parliament that themselves may there be judged if they therein offend as all their Speakers usual protestations and petitions to the King when presented evidence That the Commons may have liberty of speech and that if any Members in the House of Commons in communication and reasoning should speak more largely than of duty they ought to doe that all such offences may be pardoned which the King may punish if there be cause unâ—eâ—â—â— he pardon it of record upon the Speakers Protestation before hand Sir Edward Cook himself as well as the Parliament Rolls and experience informs us of these particulars touching the Speakers of the Commons House in Parliament their chiefest Member 1. That though the Commons are to chuse their own Speaker and that by the kings special command and license to them in every Parliament since they had one not with due â— who likewise prescribes them the time when to present him yet the use is as in the Conge de eslâ—yer of a Bishop that the king doth name a discreet and learned man to them whom the Commons do eâ—ect pro formâ— only because he cannot be appointed for them without their election being their mouth and â—usted by them 2ly That after the Commons choice the King may refuse him 3ly That after he is chosen he must be presented to the king by the Commons in the Lordâ— House for his approbation and confirmation in that plaâ—s the Commons sending up some of their Members to acquaint the Lords Spiritual and Temporal that according to the Kings command they had chosen such a one their Speaker and are ready to present him at the â—me appointed 4ly That where he is thus presented he is in disable himself for so weighty a service and to make sutâ— to the King to be discharged and a more sufficient man chosen in his place To which I shall adde that upon this excuse the king may discharge him if he please and command the Commons to elect another as King Henry the â— did discharge Sir John Popham when presented Speaker to him by the Commons in the Parliament
of 26 H. 6. n. â— upon his excuse Whereupon William Tresham was elected in his place presented to and approved by the King n. 7. 5ly That when he is elected and approved yet in case of sickness and infirmity he may be removed and another chosen and presented in his place and that upon the Commons special Petition to the king in his behalf out of his meer Grace to discharge him and accept of another Thus in the Parliament of 1 H. 4. n. 62 63 64. Sir John Cheyney Knight after his election and approbation was discharged and Sir John Dorew Knight elected presented and admitmitted by the Kings license to be Speaker in his room So in the Parliament of 1 H. 5. n. n. 7 9 10.11 Will. Sturton Esquire after he was chosen and allowed Speaker was removed for grievous sickness and John Doreward chosen in his place At the Parliament holden 15 H. 6. n. 10 27. Sir John Tirril knight was chosen and allowed yet removed for grievous sickness and William Beerell chosen in his place and that by the Kings special license and approbation to whom all those new Speakers were again presented by the Commons for his royal assent thereto 6ly That if he be altered by his Majesty by assent of the Council Lords as the entry is in the Parliament Rolls then he maketh a protestation or Petition to the king which consisteth of three parts 1. That the Commons in this Parliament may have freedom of speech as of right and custom they have used and all their antient and just Privileges and Liberties allowed them which the King usually granted with this caution That he hoped or doubted not That the Members would not speak any unfitting words or abuse this freedom and privilege for abuse whereof some have been committed Prisoners to the Tower by our Kings and Queens command 2ly That if he shall commit any Error in any thing he shall deliver in the name of the Commons no fault may be imputed to the Commons and that he may resort again to them for declaration of his good intent and that his Error may be pardoned 3ly That as often as necessity for his Majesties service and the good of the Common-wealth shall require he may by direction of the House of Commons have access to his Majesty If then the King hath the sole power and jurisdiction thus to nominate approve confirm disallow refuse discharge and remove the very Speakers of the Commons House themselves and not the Commons but by and with his special license grace and royal assent yea to grant them freedom of speech and their usual Privileges and liberties every Parliament upon their Petition and to pardon theirs and their Speakers Errors and that sitting in the Lords House with their assents then doubtlesse the king and Lords alone are the sole Judges of the Speakers and all other Members of the Commons House and have the sole power to judge of their undue elections retorns misdemeanors breaches of Privileges and all other matters concerning their Membership not the Commons And if they can neither constitute elect nor remove their own Speaker for sickness or any other cause without the kings privity and consent declared in the House of Lords much lesse can they suspend seclude or eject any Member out of the House when chosen and returned by the Freeholders Citizens or Burgesses as their Attorny or Trustee in equal power with themselves without the Kings or Lords consents for any pretext of unfitness or undue election And if the king as Sir Edward Cook grants and these presidents prove may discharge the Speaker from his Office for grievous sickness and inability to discharge it I mak no question but he may likewise upon the like Petition of the Commons or Speaker discharge him of his attendance in the House or any other Member for the self same reason and grant a Writ to elect another able and fitting person in his place according to the opinion of 38 H. 8. Brooks Parliament 7. and Crompton in his Jurisdiction of Courts f. 16. approved by the whole House of Commons and accordingly practised in 38 H. 8. against Sir Edward Cooks bare opinion without reason to the contrary In the Parliament holden at Westminster 5 H. 4. rot Parl. n. 38. Thomas Thorp his Case Item because that the Writ of Summons of Parliament returned by the Sherif of Roteland was not sufficiently nor duly returned as the Commons conceived the said Commons prayed our Lord the King and the Lords in Parliament that this matter might be duly examined in Parliament and that in case therâ— shall be default found in this matter that such a punishment might be inflicted which might become exemplary to others to offend again in the like manner Whereupon 〈◊〉 said Lord the King in full Parliament commanded the Lords in Parliament to examine the said matter and to do therein as to them should seem best in their discretions And thereupon the said Lords caused to come before them in Parliament as well the said Sherifs at William Oneby who was returned by the said Sherif for one of the Knights of the said County and Thomas Thorp who was elected in full Countie to be one of the Knights of the said Shire for the said Parliament and not returned by the said Sherif And the said parties being duly examined and their reasons well considered in the said Parliament it was agreed by the said Lords that because the said Sherif had not made a sufficienâ— return of the said Writ that he shall amend the said return and that he shall return the said Thomas for one of the said Knights as he was elected in the said County for the Parliament and moreover that the said Sherif for this default shall be discharged of his Office any committed Prisoner to the Fleeâ— and that he should make sins and ransome at the Kings pleasures â—oâ— here the Lords in Parliament at the Commons request and by the Kings command examine and give judgement in case of an undue election and retorn even without the Commons In this same Parliament Richard Cheddar Esquire a menial servant and attendant on Sir Thomas Brook chosen one of the Knights to serve in Parliament for the County of Somerset was horribly beaten wounded blemished and maimed by one John Savage Whereupon the Commons complained thereof to the King and Lords petitioning them for redress both in his particular case for the present and all others of that nature for the future that they might make fine at the Kings 〈◊〉 and render double damages to the party maimed whether Members of theirs Servants Whereupon it was ordained and established by the King and Lords that for as 〈…〉 deed was done within the time of the said Parliament that Proclamation be made where it was done that the said John appear and yield himself in the Kings Bench within a quarter of a year after the Proclamation
but are enforced to petition the King and Lords for his enlargement 3ly The Lords in the kings name command the Commons to chuse and present another Speaker in his room and that with all speed which they accordingly did and then present him to the King and Lords for their approbation who allowed of their choice In the Parliament of 38 H. 6. n. 35. There were divers Knights of Counties Citizens and Burgesses named returned and accepted some of them without any due or free election some of them without any election at all against the course of the Kings Lawes and the Liberties of the Commons of the Realm by vertue of the Kings Letters without any other election and by the means and labours of divers seditious and evil disposed persons only to destroy certain of the great faithfull Lords and Nobles and other faithfull liege people of the Realm out of hatred malice greedy and unsatiable covetousness to gain their Lands Inheritances Possessions Offices and goods as the Statute of 39 H. 6. c. 1. relates The Commons were so farr from having power to exclude or confirm their elections themselves that they petitioned the King by advise and assent of the Lords That all such Knights Citizens and Burgesses as were thus returned to this Parliament by vertue of the Kings Letters without any other election should be good and that no Sherif for returning them might incurr the pain therefore provided by the Statute of 23 H. 6. c. 15. Which the King and Lords assented to at their request In the Parliament of 39 H. 6. n. 9. Walter Clerk one of the Burgesses of Parliament for Chippenham was arrested and imprisoned in the Fleet for divers debts due to the King and others upon a Capias Vilagatum whereupon the Commons complained thereof to the King and Lords by Petition and desired his release and rendred them an Act of Parliament ready drawn for that purpose to which Petition and Bill of theirs the King by the assent of the Lords Spiritual and Temporal assented And thereupon he was freed Not by the Commons power order or judgement but by the Kings and Lords advice and assents William Hyde a Burgess of Chippenham in Wiltshire being taken in Execution upon a Capias ad satisfaciendum and imprisoned in the kings Bench during the Parliament contrary to his privilege the Commons thereupon by a Petition praved the King that by advice and assent of the Lords Spiritual and Temporal he might be delivered for the present by a Writ of privilege out of the Chancery which the King by the advice and assent of the Lords granted saving the right of his Prosecutors to have execution upon him again after the Parliament ended 14 E. 4. n. 55. In the Parliament of 17 E. 4. n. 36. John at-Will a Burgess for Exeter was condemned in the Exchequer upon 8. several Informations during the Parliament at the prosecution of Iohn Taylor of the same Town upon complaint thereof by the Commons to the King and Lords in Parliament by Petition the King by advice and assent of the Lords Spiritual and Temporal ordered that he should have as many Supersedeas against the said Judgements and Informations as he pleased until his coming home from the Parliament In these last recited cases the Commons had no power at all to deliver or enlarge their own Members when imprisoned as of late years they have practised but always petitioned to the King and Lords for their release and relief who thereupon released and relieved them against the breaches of their privileges when they saw good cause Which cases I have examined by and transcribed out of the Parliament Rolls themselves in the Tower and not taken upon trust or the Abridgements of them which leave out the main ingredients the Commons Petitions to and advice and assent of the King and Lords expressed in the Rolls at large Richard Strode Gentleman one of the Burgesses of Parliament for the Burge of Plympton in Devonshire in the Parliament of 4 H. 8. for agreeing with the Commons house in putting out Bills against certain abuses of the Tinners being a Tinner himself by the malice of John Furse Tinner Under-Steward of the Stannâ—ries and his misinformation that the said Richard Strâ—de at the last Parliament heldâ—n at Westminster would have avoided and utterly destroyed all Liberties Privileges and Franchises concerning the Scanneâ—ies was upon 4. Bills thereof made by the said Furse presented and found guilty of the premises in 4. several Stannery Courts and condemned to forfeit 40 l. on every Bill to the King upon an Act and Ordinance made by the Tinners to which he was never warned nor called to make answer contrary to all Laws right reason and good conscience And one John Aguiâ—â—iam begging 20 l. of the said forfeiture from the King caused the said Richard to be taken and imprisoned in Lidford Castle in a dungeon and deep pit under ground where he was fed only with bread and water to the peril of his life and was to have irons laid upon him Upon which he petitioned the Parliament for remedy and that it might be ordained and enacted by the King the Lords Spiritual and Temporal that the condemnations against him for the said 160 l. in the Stanneries and every parcel thereof and judgements and executions had or to be had for the premises might be utterly void and of none effect against him which was done for him accordingly And moreover it was enacted That all sutes accusations condemnations executions fines amerciameuts punishments corrections grants charges and impositions put or had or hereafter to be put or had upon the said Richard to every other person or persons that were in this Parliament or that of any Parliament hereafter shall be for any Bill speaking reasoning or declaring of any matter or matters concerning the Parliament to be communed or treated of be utterly void and of none effect And that any person vexed or troubled or otherwise charged for any causes as aforesaid shall have an action of the case against every person or persons so vexing or troubling him contrary to this Ordinance and recover treble damages and costs And that no protection Essoign or wager of Law shall in the said action in any wise be admiâ—red nor received as you may read in the Statutes at large 4 H. 8. ch 8. intituled an act concerning Richard Strode The Commons themselves being unable to releive him in this high breach of privilege but by a petition to the King and Lords and a special Act of Parliament made for him In the Parliament of 34 H. 8. there fell out this famous case thus at large recorded by Holinshed and Crompton out of him In the Lent season whilst the Parliament yet continued one George Ferrers Gentleman servant to the king being elected a Burgess for the Town of Plimmouth in the County of Devon in going to the Parliament House was arrested in
Picardy ready to be transported into England But when it was certainly certified that King Richard was dead and that their enterprise of his deliverance was frustrate and void the Army scattered and departed asunder But when the certainty of King Richards death was declared to the Aquitaynes and Gascons the most part of the wisest men of the Country fell into a bodily fear and into a deadly dread for some lamenting the instability of the English people judged them to be spotted with perpetual infamy and brought to dishonour and loss of their antient fame and glory for committing so hainous a crime and detestable an offence against their King and Soveraign Lord. The memory whereof they thought would never be buried or extincted Others feared the loste of their goods and liberties because they imagined that by this civil dissension and intestine division the Realm of England should so be vexed and troubled that their Country if the Frenchmen should invade it should be destitute and left void of all aid and succour of the English Nation But the Citizens of Burdeaux took this matter very sore at stomach because King Richard was born and brought up in their City lamenting and crying out that since â—he beginning of the world there was never a more detestable or more villanous or hainous act committed which being sad with sorrow and inflamed with melancholy said that untrue unnatural and unmercifull people had betrayed and slain contrary to all Law and Justice and honesty a good man a just Prince and lawfull Governour beseeching God devoutly on their knees to be the revenger and punisher of that detestable offence and notorious crime 15ly The proceedings against King Richard the 2. in the Parliament of 1 H. 4. were in the Parliament of 1 E. 4. n. 9 10 11 12. condemned as illegal the Tyrannous usurpation of Henry the 4th with his hainous murdering of King Richard the 2. at large set forth his reign declared by Act of Parliament to be an intrusion and meer usurpation for which he and the heirs of his body are utterly dis inabled as unworthy to enjoy any inheritance estate or profits within the Realm of England or Dominions of the same for ever and that by this memorable Petition of the Commons wherein the pedigree of King Edward the 4th and his title to the Crown are likewise fully set forth a Record most worthy the publike view being never yet printed to my knowledge Ex Rotulo Parliamenti tenti apud Westm anno primo Edwardi Quarti n. 8. Memorandum quod quaedam Petitio exhibita fuit praefato Domino Regi in praesenti Parliamento per praefatos Communes sub eo qui sequitur tenore verborum For as much as it is notary openly and evidently known that the right noble and worthy Prince Henry King of England the third had issue Edward his furst gotten Son born at Westminster in the 15 kalende of Juyll in the vigille of Seint Marce and Marcellian the year of our Lord M. C.C.XLV the which Edw. after the death of the said King Henry his Fader entituled and called King Edward the furst had issue his furst gotten Son entituled and called after the decease of the same Edward the furst his Fader King Edward the second which had issue the right noble and honourable Prince King Edward the third true and undoubted King of Englond and of France and Lord of Irelond which Edward the third had issue Edward his furst gotten Son Prince of Wales William Hatfield secund gotten Son Leonel third gotten Son Duke of Clarence John of Gaunt fourth gotten son Duke of Lancaster Edmund Langley the fifth gotten son Duke of York Thomas Wodestoks the sixth gotten son Duke of Gloucester and William Wyndesore the seventh gotten Son And the said Edward Prince of Wales which died in the life of the said King Edward the thurd his Fader had issue Richard which after the death of the same King Edward the third as Cousin and heir to him that is to say Son to the said Edward Prince of Wales Son unto the said King Edward the third succeeded him in royal estate and dignity lawfully entituled and called King Richard the secund and died without issue William Hatfield the secund gotten Son of the said King Edward the third died without issue the said Leonel Duke of Clarence the third gotten Son of the same King Edward had issue Phelip his only daughter and died And the same Phelip wedded unto Edmund Mortimer Earl of Marche had issue by the same Edmund Roger Mortymer Earl of Marche her Son and heir which Edmund and Phelip died the same Roger Earl of March had issue Edmund Mortymer Earl of March Roger Mortymer Anne and Alianore and died And also the same Edmund and Roger sons of the foresaid Roger and the said Alianore died without Issue And the same Anne wedded unto Richard Earl of Cambridge the Son of the said Edmund Langley the fifth gotten son of the said king Edward the third as it is afore specified had issue that right noble and famous Prince of full worthy memory Richard Plantagenet Duke of York And the said Richard Earl of Cambridge and Anne his Wife died And the same Rich. Du. of York had issue the right high and mighty Prince Edward our Liege and Soveraign Lord and died to whom as Cousin and heir to the said King Richard the Crown of the Realm of England and the royal power estate dignity preheminence and governance of the same Realm and the Lordship of Ireland lawfully and of right appertaineth of the which Crown Royal power estate dignity preheminence governance and Lordship the said King Richard the second was lawfully rightfully and justly seised and possessed and the same joyed in rest and quiet without interruption or molestation unto the time that Henry late Earl of Derby son of the said Iohn of Gaunt the fourth gotten son of the said King Edward the third and younger Brother of the said Leonel temerously agenst rightwisnes and Iustice by force and Arms agenst his faith and liegeaunce rered werre at Flynte in Wales agenst the said King Richard him took and enprisoned in the Tower of London of grete violence And the same King Richard so being in prison and living usurped and intruded upon the royal power estate dignity preheminence possessions and Lordships aforesaid taking upon him usurpously the Crown and name of K. and L. of the same Realm and Lordship And not therewith satisfied or content but more grievous thing attempting wickedly of unnatural unmanly and cruel tyranny the same King Richard King anointed crowned and consecrate and his Liege and most high Lord in the Earth agenst Gods Law Mans liegeance and Oth of fidelite with uttermost punicion attormenting murdred and destroyed with most vile hainous and lamentable death whereof the heavy exclamation in the doom of every Christian man soundeth into Gods hearing in Heaven not forgotten in the Earth specially in this
Christ beseeching all that fear God to behave themselves as obedient Subjects to the Queens Highness and the superiour powers which are ordained under her rather after their example to give their heads to the block than in any point to rebell against the Lords anointed Queen Mary in no point consenting to any Rebellion or sedition against her Highness but where they cannot obey but must disobey God there to submit themselves with all patience and humility to suffer as the will and pleasure of the higher powers shall adjudge Against the doctrine practice of some new Saints of this iron age who will ward off Christs wooden Cross with their iron swords and rather bring their Soveraigns heads to the block than submit their own heads unto it for their very Treasons and Rebellions against them So farr are they from believing practising the very first Alphabetical Lesson of our Saviours prescription and real Christanity Mat. 16.24 If any man will come after me let him deny himself and take up his cross and follow me The Duke of Northumberland for that he was appointed General of the Army in this Quarrel of the Lady Jane though Queen de facto was arrested of High Treason together with 3. of his Sons the Marquess of Northampton the Earl of Huntindon with sundry Knights Gentlemen and sent prisoners to the Tower of London The 16. of August next following the said Duke and Nobles were publikely arraigned of High Treason in Westminster hall before Thomas Duke of Norfolk High Steward of England being brought to the bar the D. used great reverence to his Judges professing his faith and allegiance to the Queens Majesty whom he confessed he had grievously offeâ—ded saying that he meant not to speak any thing in defence of his face but would first understand the opinion of the Court in 2. points 1. Whether a man doing any Act or thing by authority of the Princes Councel and by Warrant of the Great Seal of England and nothing doing without the same may be charged with TREASON for doing any thing by such Warrant Which question was grounded on this very Statute of 11 H. 7. c. 1. 2. Whether any such persons as were equally culpable in that crime and those by whose Letters and Commandment he was directed in all his doings might be his Iudges or passe upon his Tryal as his PEERS To the 1. was answered mark it That the Great Seal he had for his Wâ—rrant was not the Seal of the Lawfull Qu. of the Realm nor pâ—ssed by her Authority but the Seal of an Vsurper and therefore could be no Warrant to him To the 2. That if any were as deeply to be touched in that Case as himself yet so long as no attainder was of Record against them they were nevertheless persons able in Law to pass upon any tryal and not to be challenged therefore but at the Princes pleasure After which the Duke and the rest of the Lords using but few words declaring their earnest repentance and imploring the Queens mercy confessed this Indictment of Treason and thereupon had Iudgement passed upon them as Traytors And the Duke with Sir Iohn Gates and Sir Thomas Palmer were accordingly executed on Tower Hill August 22. confessing the Iustice both of their Iudgement and Execution as TRAYTORS and not justifying themselves by the Act of 11 H. 7. After this Archbishop Cranmer though at first he refused to subscribe K. Eds. will to dis-inherit Queen Mary alleging many reasons against it yet was committed Prisoner to the Tower indicted arraigned condemned of High Treason in November following for aiding the Earl of Northumb. with Horse and Men against Queen Mary And Queen Jane herself though Queen de facto meerly passive not active in this case never aspiring after the Crown being proclaimed Queen against her will with the Lord Guyldsord her husband were both indicted arraigned condemned of High Treason and accordingly executed as Traytors Feb. 12. 1 Mariae the one for usurpation of the royal Estate AS QVEEN OF ENGLAND the other as principal adherent to her in that case both of them confessing that BY THE LAW THEY WERE JUSTLY CONDEMNED After which the Duke of Suffolk her father and sundry others were condemned of High Treason executed upon the same account and that by the judgement of all the several Peers Nobles Judges Lawyers and Great Officers of Engl. though guilty of the same crime seconded with the Judgement of the whole Parl. of 1 Mar. c. 16. which confirmed their Attainders as JUST and LEGAL notwithstanding the Statute of 11 H. 7. c. 1. which extends only to indemnifie those Subjects who doe their true duty and service of allegiance to their King and Soveraign Lord which none certainly do who adhere and joyn with an apparent Usurper in possession against their lawfull undoubted King and Soveraign Lord as they here adjudged and the Parliaments of 1 4 and 14 of King Edward the 4th long before no Acts of Parliament whatsoever being able to secure Usurpers Titles though Kings de facto to themselves or their posterity or to save their own or their adherents Heads from the block or their estates from confiscation as the recited tragical Presidents and Judgements prove against the absurd opinions of many Grandees of the Law in great reputation who take all Sir Edward Cooks and others Dotages for Oracles and well deserve a part in Ignoramus for being ignorant of these late notorious Judgements and authorities against their erronious opinions wherewith they seduce their silly Clyents and young Students of the Law to their great peril for whose better information I have the larger insisted on this point to rectifie this dangerous capital mistake which may hazard both their lives estates and souls to boot And so much in answer to the objected Presidents of Edward and Richard the 2d to prove the Commons Right of Judicature in Parliaments c. As good an evidence as that grave Sir E. Cook produceth to prove this House of Commons who had no Journal Book till â— Ed. 6. to be a distinct Court of Iudicature because upon signification of the Kings pleasure to the Speaker they do and may prorogue or adjourn themselves and are not prorogued adjourned by the House of Lords By which reason he might prove every Committee of the Lords or Commons House to be a distinct Court because they may adjourn and prorogue themselves without the House and all Commissioners for examination of Witnesses Charitable uses the petty Sessions of Justices of Peace all Country Committees Archdeacons and other visitors all Auditors of Accounts Arbitrators Referrees c. to be Courts because they may all adjourn themselves from one day and place to another when as their presenting of their own Speakers in and the Kings calling them into the Lords House at the beginning and end of every Parliament or Session and at the passing of Bills and their dissolution in the Lords
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
E. 3. n. 1.10 R. 2.17 R. 2. n. 6.7 8 H. 4. n. 66 67. some of the valiantest wisest discreetest Spiritual and Temporal LORDS were by Petition of the Commons and special Order of the Lords in Parl. placed about these Kings to BE THEIR PRIVY COVNSELLORS to advise counsel them and manage all the Great affairs of the Realm under them so in this Parliament they exhibited this Petition to the like eâ—â—ect Primerement que plese a nostre dit Seigniour le Roy ordeigner et assigner en cest present Parlement les pluis vaillantz sages et discretes Seigniours espirituelx et temporelx de son roialme pur estre de son counseil en eid et supportation del bone et substancial gouvernance et la bien de Roy et de Roialme et que les ditz Seigniours de counseill et les Justices de Roi soient overtement jurez eny cest present parlement de eux bien et loialment en lour counseill et faitz acquiter pur le bien de Roy et de Royalm en toutz pointz saunz favour pur affection ou affinite faire a ascune manere de persone Et que plese nostre dit Seigniour le Roy en presence de toutz les Estates de parlement comander les ditz Seigniours et Justices sur lour foy et ligeance que lui devont qils feront pleyne justice et droit ouelment a chescuny sanz tarians si bonement come ils purront sanz ascun commandement on charge de queconque persone a contrarie Le Roy le voet was the answer which was answered See the like Petitions afterwards in 1 H. 6. n. 26.2 H. 6. n. 15 16.8 H. 6. n. 27 28.11 H. 6. n. 41. I shall conclude with these 2. memorable late presidents In the Parliament of 8 Eliz. upon the death of Thomas Williams Esquire Speaker of the Commons house Richard Onstoe Esquire the Quâ—ens Sollicitor first chosen a Member of the Commons house and after called by Writ to attend the Lordâ— House as an Assistant at the request of the Commons to the Queen and Lords was sent down again to the Commons house without any new election and there chosen and presented by them for their Speaker and allowed of by the Queen and Lords So in the Parliâ—ment of 23 Eliz. upon the Queens making John Bell Esq then Speaker chief Baron of the Exchequer Iohn Popham Esq then Queens Sollicitor called from the Commons house to the Lords as an Assistant by writ at the Commons request to the Queen and Lords was remitted to them again upon his old without any new election and thâ— chosen presented accepted for their Speaker Which 2. late presidents infallibly prove 1. That the King hath an absolute power over any Members of the Commons house upon a just occasion to call them thence by writ to be Assistants to the Lords house or else to create them Peers and call them to be Members of the Lords house as he did Sir Francis Seymore Mr. Arthur Capell and others created Lords the last long Parliament 2ly That the calling of any to the Lords house from the Commons by writ as Assistants only doth not totally disable them to be Members of the Commons house again the self-same or the next Parliament but that upon the Commons Petion and assent of the King and Lords they may be remanded to the Commons house and be Members and Speakers thereof again but not by the Commons votes or order but only by the Kings with the Lords assent who may refuse to remand them if they please A very pregnant argument chat the power of removing judging suspending approving readmitting Members of the Commons house upon Elections or Misdemeanors belongs not of right to the Commons house but to the King and House of Peers as I have formerly evidenced Admitâ—ing then that the Commons have de facto gained exercised this privilege of late years to judge suspend or eject their own Members in such cases without the King and House of Peers yet having most grosly abused it of late to the ruine subversion of Parliaments I must conclude with the Canonists Privilegium meretur amittere qui abutitur potestate Jer. 6.16 Thus saith the Lord Stand ye in the wayes and see and ask for the old pathes where is the good way and walk therein and ye shall find rest for your souls But they said We will not walk therein Prov. 24.21 22. My son fear thou the Lord and the King and meddle not with those who are given to change For their Calamity shall rise suddenly and who knoweth the ruine of them both Jer. 21.3 4. c. 17.25 27. Thus saith the Lord Execute ye judgement and deliver the spoiled out of the hands of the Oppressor and do no wrong do no violence to the stranger the fatherless nor the widdow neither shed innocent bloud in this place For if ye do this thing indeed then shall there enter into the Gates of this House KINGS PRINCES sitting upon the Throne of David riding in chariots and on horses they and their PRINCES the men of Iudah and the inhabitants of Ierusalem and this City shall remain for ever But if you will not hearken unto me c. then will I kindle a fire in the gates thereof and it shall devour the PALACES of Ierusalem and it shall not be quenched FINIS An Omission in pag. 30 l. 7. RAnulph de Glanvil Chief Justice under King Henry the 2. In his Tractatus de Legibus et Consuetudinibus Regni Angliae written in the 33 year of his reign hath this memorable passage relating to the Parliamentary Councils in that age l. 2. c. 7. Est autem magna Assisa REGALE QVODDAM BENEFICIUM CLEMENTIA PRINCIPIS DE CONSILIO PROCERUM POPVLIS INDVLTUM to wit in a Parliamentary Council of the King and Lords without any Commons quo vitae hominum et status integritati tam salubriter consulitur ut in jure quod quis de libero soli tenemento possidet retinendo duellâ— casum declinare possunt homines ambiguum c. Ex aequitate autem maxiâ— prodita est LEGALIS ISTA INSTITUTIO Jus enim quod post multas longas dilationes vix evincitur per duellum per beneficium ISTIUS CONSTITUTIONIS commodius et acceleratius expeditur By which it is evident that the Grand Assize was no original Processe or Trial at the Common Law but a legal institution and beneficial constitution proceeding from the Grace of the Prince and indulged to the People BY THE COUNSEL OF THE LORDS assembled together in a Parliamentary Council which Lib. 2. c. 9. Glanvil stiles Recordum per Assisam DE CONSILIO REGNI inde factum for the speedier and better recovery of their freeholds without endangering their lives by a Duel to recover them which was fuller of delays but less certain and more unjust than a recovery by verdict in this new
p. 30 31 33 34. (Å¿) See Modus tenendi Parliamentum Vowel Cowel Crompton Sir Thomas Smith Coke others 17 E. 3. n. 23. 21 E. 3. n. 7. 7 R. 2. n. 30 31. 9 R. 2. n. 13. 2 R. 1. pt 2. n. 27. 31 H. 6. n. 26 27 28. 28 H. 6. n. 6. * 1 H. 4. n. 79. See the Freeholders Grand Inquest p. 25. Cokes 4 Instit c. 1 5 6 7 8 10 11. * An exact abridgment p. 377.399 * 7 R. 2. par 2. n. 14. 1 R. 2. n. 31 32. * Littleton sect 21â— Coke ibid. 4 E. 3.7 2 H. 6.10 14 H. 4 8. 2 R. 2.29 5 H. 7 8. Bro. Challeng 23 42 71. (t) Cokes 4. Instit p. 24. * 50 E. 3. n. 5. to 37. 21 R. 2. n. 14 15 16. 28 H 6. n. 14 to 52. 31 H. 6. n. 45 64. 38 H. 6. n. 38. * 25 E. 3. c. 2. 20 R. 2. c. 3. 6 R. 2. c. 5. 14 H. 6. c. 3. 8 R. 2. c. 3. 2 R. 2. c. 10. (u) Coke 4 Instit p. 24. * See an Exact Abridgement of the Records of the Tower the Table to to it Tit. Commons Lords Parliaments Petitions Cooks 4. Inst p. 16. * See here p. 46 47. * Exact abridgement p. 66.85 86 123 156 164 176 177 168 169 282 300 301 304 305 331 543 344 348 352 353 359 363 369 372 373 393 408 418 429 440 535 539 546. (a) Cooks 1 Instit f. 110 a. (b) Cooks 3 Instit p. 224. (c) Walsingham Ypodig Neustr p. 93 94. Here p. 213. (d) Mat. Paris Hist Angl. p. 101. (e) Rerum Anglic. Hist l. 2. c. 13. See my Sword of Christian Magistracy supported p. 51 52. (f) Mat. Paris p. 308 309 310 318. Mat. Westm Ann. 1224. p. 119 127. * Querelas (g) Mat. Par. p. 785 788 793 794. (f) Mat. West anno 1265 p. 34. Mat. Paris p. 967. (k) Walsingh Ypodig Neust p. 72. Hist Angl. p. 15. Parl. 20 E. 1. f. 5. Cooks 3. Instit p. 145. Holinshed p. 284 285. (l) See An Exact abridgment of the Records in Tower title Petitions Commons Parliment in the Table Petitions of the Commons in the Abridgment it self (1) Walsingham Ypodig Neustr p. 102. (2) Polychro l. 7. c. 42. f. 312. Henry de Knyghton de Event Angliae l. 3. c. 14. col 2535. * Placita Parl. An. 18 Edw. 1. in the Parchment bnok in the Tower f. 2. b. 50 51. * 2 Instit p. 50. †The Earl of Kent King Edwards Brother †Cook 2 Instit p. 50. †Magn. Char. c. â—9 15 E. 3. c. 2.4 28 E. 3. c 3.37 E. 3. c. 8.42 E. 3. c 3. Cook 2 Instit p. 50 51. (1) Exact abridgement p. 8. (m) Exact abridgement p 10. (n) Rot. Parâ— 24 E. 3. pars 3. m. 2. dors Rot. Pat. 25 E. 3. part 1. m. 17. Cooks 3 Inst p. 223 224. Mr. S. â—0 argument against the Shipmony Iudges p. 22 23 14. (o) Exact abridgement p. 74. (t) Exact abridgement p. 67. (u) Exact abridgement p. 120. Henry de Knyghton de Event Angl. l. 5. col 2636. (x) Exact abridgement p. 122 123. (y) Exact abridgement p. 158. (y) Exact abridgement p. 157. (e) An Exact abridgement p. 157 158. And my Doom of Cowardise and Treachery p. 2 3 4 5. (1) An exact abridgment p. 176.177 (2) Walsingh Hist Angliae p. 245 246 247. Ypodig Neust p. 138. (3) An Exact abridgement p. 189 190. Walsingham Hist Angliae p. 154 155. (4) See an Exact abridgment p. 199.200 (5) Hist Angliae p. 328. (6) Walsingh Hist Angl. p 316. (7) An Exact abridgement p. 292 293 294. See nay Doom of Cowardise p. 14 15. Walsingham Hist Angl. p. 3â—3 (8) Walsingham Hist Angl. p. 337. (9) An Exact abridgement p. 299 300. (11) An Exact abridgement p. 304. (11) Henry de Knyghton de Eventib. Angliae l. 5. col 2535. to 2577. Walsingham Hist Angl. p. 364 365 366. Ypodig Neustr p. 146 147. (m) Exact abridgement p. 330 331. (n) Exact abridgement p. 342 343. (o) Exact abridgement p. 346 347 35â— 354 Cooks 3 Inwit p. 22. (p) Exact abridgement p. 361 362. (q) Exact abridgement p. 369 379 381. * Exact Col. p. 381. * See here p. 196 197. Rot. Parl. 1 H. 4. n. 90. * 1 H. 4. n. 104. * 1 H. 4. rot Parl. n. 93. * Exact abridgement p. 400 401. * See this case abridg'd in an exact abridgement p. 406. (z) Fox Acts Monum Vol. 1. p. 875. Fitz. Natur. Brev. f. 269. my Sword of Christian Magistracy supported p. 55 56. An Exact abridgement p. 407. (a) An Exact abridgement p. 407. (b) Walsingh Hist Angl. p. 404 405. (c) An Exact abridgment p. 407. (c) Walsingham Hist pâ— 409 410 411. See Holinshed Grafton Speed (e) An Exact abridgment p. 426 427. (f) An Exact abridgment p. 479. (g) An Exact abridgment p. 553 554. Waâ—singham Ypodig p. 181 to 184. Fox Acts Mon. Vol. 1. p. 726. to 772. (h) An Exact abridgment p. 568. (i) An Exact abridgment p. 662 663 670 671 677 679. (k) Cooks 4 Instâ— p. 23. (l) See the Lords and Commons Journals Diurnal Occurrences p. 15 16.19 39 191 to 264. Mr. St. Johns Speech and Declaration against them at a conference of both Houses The Speeches of Mr. Hide Mr. Waller Mr. Perpoint Mr. Hollis at their impeachments The 1 part of my legal and historical Vindication c. p. 36 37. (m) See here p. 36 37. (n) Cooks 4 Instit p. 15. (o) See Brook Ashes Tables Tit. Contempts Fines pur Contempt Imprisonment (p) In Cottoni Posthuma p. 348. (q) Hist Angl. P. 943 959. (r) Maâ— Paris Auctuarium Additamentorum Londini 1639. p. 222. (Å¿) Page 947. (11) An Exact abridgement of the Records in Tower p. 12 151. (u) Pag. 941 * See the Free-holders Grand Inquest p. 39 40 41 42. * See the Freeholders grand Inquest p. 39 40 41 42. †4 Inst p. 23. 3 Inst p. 7. 22. †Flores Hist pars 2. Anno 1305. p. 449 450. * offerentibus †The first Writ of summons now extant is but in 49 H. 3. Seld. Titles of Honour patt 2. c. 5. (e) Cook 4 Inst p. 21. Cottoni Posthuma p. 347. Sir Robert cottons Posthuma p. 348 349 (m) Walsingham Hist Angl. p. 98. to 106. Ypopig An. 1326 1327. Antiq. Eccles Brit. p. 227 228. Godwins Catalogue of Bishops p. 129 130. Fox acts and Monuments p. 342 p. 339 340. and Speeds Hist p. 679 680.681 685 686. See my Antipathy of the English Lordly Prelates c. p. 54 55 56 265 266 267. * Claus 1 E. 3. m. 13. Cottoni Posthuma p. 349. The Freeholders Grand Inquest p. 13 14 15. (n) See the Freeholders Grand Inquest p. 13 14 15. (o) Cooks 4. Instit p. 23. Cottoni Posthuma p. 249. (p) Cooks 3. Instit p. 23. Sir Robert Cottons Posthuma p. 249. (q) Cooks 3. Instit c. 1. p. 8. Mr. Sr Johns Argument sat Law at the