at all because some of the Lords were not come by reason of foule weather shortnesse of warning or other publike imployments all their personall 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 the Parliament before they would consult of what the Chancellor propounded to them in the Kings name and behalfe to consider of To recite no more ancient Presidents in the Parliament of 2. Caroli the Earle of Arundell sitting in the Parliament being committed by the King to the Tower of London about his sonnes marriage May 25 1626. without the Houses privity and consent whereby their Priviledges were infringed and the House deprived of one of their Members presence thereupon the Houses of Peeres adjourned themselves on the 25 and 26. of May without doing any thing and upon the Kings refusall to release him they adjourned from May 26. till June 2. refusing to sit and so that Parliament disolved in discontent his imprisonment in this case being a breach of Priviledge contrary to Magna Charta 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 * An Exact collection part 1. 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 Priviledges contrary to the Great Charter If then the Kings bare not summoning of some Peares to Parliament who ought to sit there by their right of Perage or impeaching or imprisoning any Peere unjustly to disable them to sit personally in Parliament be a breach of the fundamentall Lawes of the Realme and of Magna Charta it selfe confirmed in above 40. succeeding Parliaments then the Lords right to sit vote and Judge in Parliament is as firme and indisputable as Magna Charta can make it and consented to and confirmed by all the Commons people and Parliaments of England that ever consented to Magna Charta though they be not eligiable every Parliament by the freeholders people as Knights and Burgesses ought to be and to deny this birth-right and Priviledge of theirs is to deny Magna Charta it selfe and this present Parliaments Declarations and proceedings in the case of the Lord Kimbolton a member of the House of Peers Fifthly The ancient Treatise intituled * See Cooke â— Justit p. 12. for the Antiquity and for the Authority of this Treatise The manner of holding Parliaments in England in Edward the Confessors time before the Conquest rehearsed afterwards before William the Conqueror by the discreet men of the Kingdome and by himselfe 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 ancient as many now take it to be determines thus of the Kings and Lords right to be personally present in all Parliaments The King IS bound by all meanes possible TO BE PRESENT AT THE PARLIAMENT unlesse he be detained or let there from by BODILY SICKNESSE and then he may keep his Chamber yet so THAT HELYE NOT WITHOUT THE MANOUR OR TOWNE WHERE THE PARLIAMENT IS HELD and then he ougth to send for twelve persons of the greatest and best of them that are summoned to the Parliament that is two Bishops two EARLES two BARONS two Knights of the Shire two Burgesses and two Citizens to looke upon his person to testifie and witnesse his estate and in their presence he ought to make a Commission and give Authority to the Archbishops of the Peace the steward of England and Cheife Justice that they joyntly and severally should begin the Parliament and continue the same in his name expresse mention being made in that Commission of the cause of his absence then which ought to suffice and admonish the OTHER NOBLES cheife men in the Parliament together with the evident testimony of the twelve Peers of theirs The reason is BECAVSE THERE WAS WONT TO BE A CRY OR MURMVR IN THE PARLIAMENT FOR THE KINGS ABSENCE BECAUSE HIS ABSENCE IS HURTFULL and DANGEROUS TO THE WHOLE COMMONALTY OF THE PARLIAMENT and KINGDOME WHEN THE KING SHALL BE ABSENT FROM HIS PARLIAMENT Neither indeed OUGHT OR MAY HE BE ABSENT BUT ONELY IN THE CASE AFORESAID After which it followes The Archbishops Bishops and other cheife of the Clergy ought to be summoned to come to the Parliament and Also EVERY EARLE and BARON and their PEERS OUGHT TO BE SUMMONED and COME TO THE PARLIAMENT c. Touching the beginning of the Parliament The Lord the King shall sit in the miâ—st of the great bench and is bound to be present in the first and last day of Parliament And the Chancellors Treasurer and Barons of the Eschequer and justices were wont to record the defaults made in Parliament according to the order following In the third day of the Parliament the Barons of the Cinqueports shall be called and after wards the BARONS of England after them the EARLES Whereupon if the Barons of the Cinqueports be not come the Barony from whence they are shall be amerced at an hundred markes and an Earle at one hundred pounds After the same manner it must be done to those who are Peers to Earles and Barons After which it relates the manner of place of the Earles Barons and Peers in Parliament Then addes The Parliament may be held and OVGHT every day to begin at one of the clocke in the afternoone at which time THE KING IS TO BE PRESENT AT THE PARLIAMENT and ALL THE PEERS OF THE KINGDOME None of all the Peers of the Parliament MAY OR OUGHT TO DEPART alone from the Parliament unlesse he have obtained and that in full Parliament leave from the KING and of ALL HIS PEERS so to doe and that with all there be a remembrance kept in the Parliament roll of such leave and Liberty granted And if any of the Peers during the terme of the Parliament shal be sick or weake so as he is not able to come to the Parliament then he ought three dayes together send such as may excuse him to the Parliament or else two Peers must go and view him and if they finde him sicke then he may make a Proxy Of the Parliament the King is the Head the beginning and ending So this ancient Treatise The Statute of 5. R. 2. Parl. 2. ch 4. enacts by COMMAND of the King and ASSENT of the Prelates LORDS and COMMONS in Parliament That all and singular persons and Commonalties which from henceforth shall have the Summons of the Parliament shall come from henceforth to the Parliament in the manner AS THEY BE bound TO DOE and hath been ACCVSTOMED within the Realme of England OF OLD TIME And every person of the said Realme which from henceforth shall have the
said Sommons be he Archbishop Bishop Abbot Prior DUKE LORD BARON Baronet Knight of the Shire Citizen of City Burgesse of Burgh or other singular person or Commonalty do absent himselfe or come not at the said Summons except he may reasonably or honestly excuse himself to our Soveraigne Lord THE KING HE SHALL BE AMERCED and OTHERWAYES PVNISHED ACCORDING AS OF OLD TIME HATH BEEN USED TO BE DONE within the said Realme in the SAID CASE Which relates unto and agrees expresly with that forecited out of Modus tenendi Parliamentum If then all the Judges and Peares in Parliament are bound to attend the Parliament not to depart without the Kings and Houses leave under paine of Amercement and other punishment as this Statute resolves and 3. Ed. 3. 19. Fit 2. Câ—ron 161. Stamford l 3. c. 1. f. 153. Cooke Instit p. 15. 16. 17. 43 18. E. 3. Mo. 1. 2 8. and 31. H. 6. n. 46. What fine were imposed on absent Lords manifest then questionlesse they ought of right to sit in Parliament else it were the height of Injustice thus to fine them In the tenth yeare of King â— * Grafâ—oâ—â— Cron. p. ◠〈◊〉 350. 2. this King absented himselfe from his Parliament then sitting at Westminster residing at Eltham about forty dayes and refusing to come to the Parliament and yet demanding from them foure fifteenes for maintenance of his Estate and outward Wars Whereupon the whole body of the Parliament made this answer THAT VNLESSE THE KING WERE PRESENT THEY WOULD MAKE THEREIN NO ALLOWANCE Soone after they sent the Duke of Gloucester and Bishop of Ely Commissioners to the King to Eltham who declared to him among other things in the Lords and Commons behalfe how that by AN OLD ORDINANCE THEY HAVE AN ACT if the King absent himselfe 40. dayes not being sicke but of his owne minde not heeding the charge of his people nor their great paines and will not resort to the Parliament they may then lawfully returne to their Houses And now sir said they you have beene absent a longer time and yet refuse to come amongst us which is greatly to our discontent To which the King answered Well we doe consider that our owne people and Commons goe about to rise against vs wherefore we thinke wee can doe no better then to aske ayd of our Cosen the French King and rather to submit us to him then unto our owne subjects The Lords answered Sir that Counsell is not best but a way rather to bring you into danger c. By whose good perswasions the King was appeased and Promised to come to the Parliament and condiscend to their Petitions and according to his appointment he came and so the Parliament proceeded which else had dissolved by the Lords departure thence in discontent and the Kings wilfull absence Andrew Horne in his Mirrour of Justices in the raigne of King Edward the first writes That our Saxon Kings divided the Realme into 38 Counties over which they set so many Counts or Earles and though the King ought to have no Peers in his land but PARLIAMENTS all Writs and Plaints of the Moneys of the King Queene and their Children and of those especially who otherwise could not have common right of their wrongs These Companions are now called Counts after the latine word Comites For to the Estates of the Realme King Alfred assembled the COVNTS or Earles and ordained by a Perpetuall Law that twice a yeare or oftner they should assemble at London in Parliament to consult of the Government of the people of God Fleta l. 2. c. 2. p. 66. writes thus in the same Kings raigne Habet enim Rex curiam suam in concilio suo in Parliamentis suis PRAESENTIBUS Praelatis COMITIBUS BARONIBUS PROCERIBUS alijs viris peritis vbi terminatae sunt dubitationes judiciorum moris injuriis eversis nova constituuntur remedia And l. 17. c. 17. he writes thus Rex in populo regendo superiores habet Vidilicet legem perfactus est Rex Curiam suam to wit of Parliament videlicet COMITES BARONES Comites enim a Comitia dicuntur qui cum viderint Regem sine froeno Froenum sibi apponere TENENTVR ne clament sabditi Domine Jesu Christe in Chamo froeno maxillas eorum constringe Sir Thomas Smith in his Common-wealth of England * Bracton l. 2. c. 〈◊〉 l. 3. c 9. 〈◊〉 the like in the same words in Henry the 3. his reigne l. 2. c. 1. John Vowel and Ralph Hollinshed vol. 1. c. 6. p. 173. Mr. Cambden in his Britania p. 177. John Minshew in his Dictionary vuell in his Interpreter Title Parliament Powell in his Attornyes Academy and others unanimously conclude That the Parliament consisteth of the KING the LORDS SPIRITVALL and TEMPORALL and the Commons which STATES represent the body of all England which make but one assembly or Court called the Parliament and is of all other the Highest and greatest Authority and hath the most high and absolute power of the Realme And that no Parliament is or can be holden without the King and Lords Mr. Crompton in his Jurisdiction of Courts affirmes particularly of the High Court of Parliament f. 1. c. This Court is the highest Court of England in which the King himself fits in person and comes there at the beginning and end of the Parliament and AT ANY OTHER TIME WHEN HE PLEASETH ORDERING THE PARLIAMENT To this Court come ALL THE LORDS OF PARLIAMENT as well spirituall aâ— temporall and are severally summoned by the Kings writ at a certaine day and place assigned The Chancellour of England and other great officers or Judges are there likewise present together with the Knights Citizens and Burgesses who all ought to be personally present or else to be amerced and otherwise punished if they come not being summoned unlesse good cause be shewed or in case they depart without the Houses or Kings speciall license after their appearance before the Sessions ended And he resolves that the King Lords and Commons doe all joyntly make up the Parliament and that no Law nor Act of Parliament can be made to binde the subject without all their concurrent assents Sir Edward Cooke not onely in his Epistle before his ninth Report and Institutes on Littleton p. 109. 110. But likewise in his 4. Institutes published by Order of this present Parliament c. 1. p. 1. 2 c writes thus of the high Honorable Court of Parliament This Court consisteth OF THE KINGS MAJESTIE sitting there as in his royall politick capacity and of the three Estates of the Realme viz. Of the Lords Spirituall Archbishops and Bishops being in number 24. who sit there in respect of their Counties or Barronies parcell of their Bishopricks which they hold also in their politick capacity and every one of these when the Parliament is to be holden ought exdebito Justitiae to have a writ of summons The LORDS TEMPORALL Dukes Marquesses Earles
2. 13 R. 2. n. 6 7. 17 R. 2. n. 17 18. 8 H. 4. n. 31. to 92. 11 H. 4. n. 14. 28. 39. 44. 13 H. 4. n. 11. Commons too when ever they recommended Councellors of State to the King in Parliament made choice of f See the Soveraigne Power of Parliaments part 1. and 2. Lords and other Peers for their Privy Councellors and therefore it was thought fit just and equall the King should ever summon them to the Parliament by his Writ without any election of the people Mr. Pryns Truth Triumphing over falshood p. 56. to 70. Stat. de 4 E. 1. c. 2. Lambert Archaion for their own inherent wisdome excellency and worth the Originall cause of advancing and ennobling them at first as is expressed in their Patents and evident by these Scripture texts Esth 1. 13 14. Isay 59. 11 12 13. Jer. 5. 5. c. 10. 7. c. 51. 57. Dan. 2. 48. c. 6. 1 2 3. Gen. 41. 39 40. Psal 101. 21 22. compared together This ground of calling the Nobles to the Parliament is intimated in the very words of the summons Et ibidem VOBIS CUM Coloquium habere tractare de arduis urgentibus Regni Ecclesiae Anglicanae negociis VESTRUM QUE CONSILIUM IMPENSUR c. Et hoc nullatenus omittatis which implies them to be men of wisdome and experience able to counsell and advise the King in all his weighty and arduous affaires both of the Kingdome and Church I could give many instances wherein the Commons in Parliament have extraordinarily applauded the Lords and Peers for their great wisdome and especially desired their wholesome Counsell as persons of greater wisdome and experience then themselves but for brevity sake I shall cite onely two Records one of them most sutable to the present deplorable condition of our State and worthy imitation In the Parliament of 21 Edw. 3. no. 45. William de Thorpe in the presence of the King Prelates Earles Barons and Commons declared that the Parliament was called for two causes The first concerning the Wars which the King had undertaken by the consent of the Lords and Commons against His Enemies of France The second how the Peace of England may be kept Whereupon the King would the Commons should consult together and that within four daies they should give answer to the King and His Counsell what they think therein On the fourth day the Commons declare THAT THEY ARE NOT ABLE TO COUNSEL ANY THING TOUCHING THE POINT OF WAR wherefore they desire in that behalf to be excused And that the King will thereof ADVISE WITH HIS NOBLES AND COUNCEL and what shall be so amongst them determined they the Commons will thereto assent confirme and establish By which it is evident the Commons then reputed the Nobles more wise and able to advise the King in matters of War then themselves who confessed their inability herein and therefore submitted to assent to whatever the Nobles and Councel should therein advise Him 28 Edw. 3. n. 55. The Commons submit the whole businesse of the Treaty of Peace with France TO THE ORDER OF THE KING AND OF HIS NOBLES And â—6 Edw. 3. n. 6. The LORDS only advise the King touching Truce or War with Scotland In the first Parliament of 15 Edw. 3. n. 11. the Commons having delivered in divers Articles concerning the redresse of grievances and publick affaires to the King prayed that unto the Wednesday ensuing their Articles may be committed to certain BISHOPS BARONS AND OTHER WISE MEN there named BY THEM TO BE AMENDED which the King granted whereas the Lords exhibited their Articles 〈◊〉 to the King and the Bishops their Articles apart in this Parliament and protested that they ought not to answer but in open Parliament BY AND WITH THEIR PEERES without joyning with the Commons num 6 7 18 c. 26 27 35 37. which course they held in most following Parliaments I shall conclude with one President more most suitable to the present deplorable condition of our State and worthy imitation In the Parliament of 5 Hen. 4. Rot. Parl. num 9. 10. The Commons having presented to the King in Parliament divers grievances in the ill managing of His Revenues the decay of His Castles Houses and Parks the great poverty and pressures of His Subjects and danger of the Enemies thereupon they most intirely and cordially prayed the King to consider the eminent perils of all parts of the Realm by reason of the Enemies and Rebels of which they had news from day to day and that as the case then stood if such mischiefs were not speedily and graciously remedied and reformed in this Parliament it might fall out upon sodain arivall of Enemies or by some other means this Parliament must of necessity be departed from by all and dissolved so as the Lords and Commons should never re-assemble again to redresse the said Mischiefs and others which God defend And therefore that it would please the King considering the HIGH WISDOMES AND DISCRETIONS OF THE LORDS and that THEY HAD KNOWLEDGE OF MANY PERILS AND MATTERS which could not be so clearly known to the King that he would now in this present Parliament charge ALL HIS LORDS Spirituall and Temporall upon the faith they principally owe to God and the faith Homage and Allegiance which they owe to our Lord the King himself for the aid and salvation of themselves and of all the Realm that the said Lords WOULD COUNSEL and shew Him their advice and WHOLSOME COUNSEL IN THIS BEHALF SEVERALLY INTIRELY without dissimulation or adulation having regard to the great mischiefs and necessity aforesaid And thereupon our Lord the King most graciously with His own mouth in full Parliament charged and commanded as well the Lords as the said Commons that they should do their diligence and shew unto Him their good and wholsome Counsels in this behalf for the aid of Him and all His Realm And after the said Commons in the same Parliament made request to the said Lords that seeing the King had given them such a charge and command and that in so high a manner of Record that they would do their diligence well and loyally to persever the same without any courtesie made between them in any manner as they would answer before the most High and before our Lord the King and to all the Realm in time to come and that the Commons themselves thereupon would do the like on their party Which if both Lords and Commons would now cordially and sincerely promise and ingage to do without self-ends or interests we might see our Church and Kingdome speedily setled in a peaceable and happy condition In brief the Lords in the very Writ touching Knights and Burgesses are stiled The Common Councell of the Kingdome and the Knights Citizens and Burgesses are called to inform and assent to that which they and their King shall Ordain and 5 Ric. 2. Parl. 2. n. 3. 6 R. 2. n. 8 9 11 26.
and Parl. 2. R. 2. n. 7 9. they are called the GREAT COUNCEL OF LORDS by waging of their extraordinary wisdome and abilities And therefore most fit to sit vote and judge in Parliament Secondly The Lords and great Officers of the Realme as such were ever reputed persons of greatest Valour Courage Power in regard of their great interests Estates allies and retainers and so best able to withstand and redresse all publike grievances and enchroachments of the King upon their owne and the peoples Liberties in defence whereof they have in ancient times been alwayes most ready and active to spend not only their estates but blood and lives for wherewith they have redeemed and preserved those Liberties and Freedomes we now enjoy and contend for And in this regard our ancesters in point of wisdome policy and right thought meet that they should alwayes be sommoned to and bear chief sway in our Parliaments in respect of their Peerage Power and Nobility only without the peoples election This reason of their sitting in Parliament we find expresly recorded in Bracton l. 2. c. 16. fol. 34. and in Fleta l. 1. c. 17. The King say they hath a Superiour namely God also the Law by which He is made a King likewise His Count to wit THE EARLS BARONS because they are called Counts as being the KINGS FELLOWS and he who hath a Fellow hath A MASTER And therefore if the King shal be without a bridle that is without a Law debent ei fraenum imponere THEY OUGHT TO IMPOSE A BRIDLE ON HIM c. which the Commons being persons of lesse power and interest were unable to do Andrew Horn in his Mirrour of Justice ch 1. § 2 3. renders the like reason In all the contest and Wars between K. John Hen. 3. Edw. 2. Rich. 2. concerning Magna Charta and the Liberties of the Subjects the Lords Barons were the Ring-leaders and chief Opposers of these Kings Usurpations and Encroachments on the people as all our g See Mat. Paris Matthew Westminster Walsingham Huntingdon Holings head Polythronicon Coxton Grimsâ—on Stow Speed Trussell Baker Martin Daniel How and the Soveraign Power of Parliaments Kingdomes part 1 2. 3. 10 R. 2. c. 1 2. 11 R. 2. c. 1. to 7. 21 R. 4. c. 7. to 13. â— H. 4. c. 2. for proof hereof Histories and Records relate whence they stile the Wars in their times THE BARONS WARS and before this the Nobles were the principall Actors in resisting the Tyranny of K. Sigebert and K. Bernard and disthroning them for their misdemeanors as is clear by Mat. Westminster in his Flores Historiarum an 756. 758. To give some brief hints to clear this truth An. Dom. 1214. In the 16. year of h Mat. Paris Hist Angl. p. 233. to 282. Daniel p. 140. to 144. Speed p. 558. to 567. K. John a Parliament held at Pauls July 16. the Charter of Liberties granted to the people by K. Hen. 1. being read and confirmed THE BARONS swore in the Arch-bishops presence that if need were they would spend thier blood And afterwards at St. Edmonds Bury the BARONS swore upon the High Altar That if K. John refused to confirm and restore to them those Liberties the 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 Seal Which they accordingly performed Tota Angliae Nobilitas in unum collecta all the NOBILITY OF ENGLAND COLLECTED INTO ONE appeared in this defence of their own and the peoples Rights and Liberties against the King whereupon it was afterwards 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 transgresse the same or offend in any one Article 4. of the said BARONS should immediately repaire to Him and require redresse of the same without delay which if not done within forty daies 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 Such confidence and power was then reposed in the BARONS alone i Hist Angl. p. 233. Mat. Paris speaking of the death of Geoffry Fitz-Peeter one of the greatest Peers of that age writes thus of him This year an 1214. Geoffry Fitz-Peeter Justiciary of all England a man of great power and authority TO THE GREATEST DETRIMENT OF THE KINGDOM ended his daies the 2 day of Octob. ERAT autem FIRMISSIMA REGNI COLVMNA for he was the most firm pillar of the Kingdom as being a Nobleman expert in the Laws furnished with treasures rents and all sort of goods and confederated to all the great men of England by blood or friendship whence the King without love did fear him above all men for he governed the raynes of the Kingdom Whereupon after his death England was become like a ship in a storm without an helm The beginning of which tempest was the death of Herbert Arch-bishop of Canterbury a magnificent and faithfull man neither could England breath again after the death of these two When K. John heard of Fitz-Peeters death turning to those who sate about him He said By Gods feet now am I first King and Lord of England He had therefore from thenceforth more free power to break His Oaths and Covenants which He had made with the said Geoffry for the peoples Liberty and Kingdoms peace Such Pillars and Staies are great and stout Peers to a Kingdom Curb to tyrannicall Kings and therefore of meeâ— Right ought to have a place and voice in Parliaments for the very Kingdoms safety and welfare without the peoples election In the 43 year of K. Hen. 3. his reign k Mat. Paris p. 952. 953. Speed p. 636. Daniel p. 178. The Barons of England entred into a solemn Oath of Association upon the Evangelist to be faithful and diligent to reform the Kingdom of England hitherto by the counsel of wicked persons overmuch disordered and eff ectually to expel the Rebels and disturbers of the same which Oath they made Richard Earl of Cornwall to take as wel as others In these Barons wars for the Subjects Liberties many hundred Lords and Barons spent both their blood lives and estates and among others Simon Mulford Earl of Leicester the greatest Pillar of the Barons slain in the batail of Eusham of whoâ— l In his Continuation of Mat. Paris p. 968. Daniel p. 178. Râ—shing â—r thus writes Thus this magnificent Earl Simon ended his daies who not only bestowed his estate but his person and life also for relief of oppression of the poor for the asserting of Justice and the Right of the Realm In the 3 4 14 15. of K. Edw. 2. his raign the Barons were the chief Sticklers against Gaveston and the
this to the Lords not only against Peers but Commoners of which there are hundreds of presidents this very Parl Therefore the House of Lords hath the proper right of judicatory vested in them not the Commons who are rather informers prosecutors and Grand-Jury men to inform and impeach then Judges to hear censure or determine Seventhly those who are proper Judges in any Court of justice whiles the cause is judging sit in their * 25 E. 3. c. 2. 20 R 2. c. 3. 6 R. 2. c. 5. 14 H. 6. c. 3. â— R. 2. c. 3. 2 R. 2. c. 10. Robes covered on the bench not stand bare at the bar swear examine the witnesses in the cause not produce them or manage the evidence when the cause is fully heard argue and debate the businesse between themselves and give the definitive sentence But in cases that are to be tried judged in Parl the Lords only sit covered and in their Robes upon the Bench but the Comons stand bare at the Bar the Lords only swear and examine the witnesses and judge of their testimony the Commons only u Coke 4. Instit p. 24. produce the witnesses or presse and manage the evidence and when the businesse is fully heard the Lords only debate the businesse among themselves and give the finall Sentence and Judgment without the CoÌ„mons and that both in cases of Comoners and Peers Therefore the Lords or house of Peers are sole Judges in Parl not the CoÌ„mons And that they are and alwaies have been so de facto unlesse by way of Bil of Attainder or in such extraordinary cases when their concurrence hath been desired I shall prove by most clear and infallible evidence To pretermit the * Mr. Seldens Titles of Honor part 7. c. 5 p. 632 633 705 706. judgment of the Earls Barons in Parl in the case of Earl Goodwin for the murther of Alfred in K. Edw. Conf. reign before the Conquest and the judgment of the Barons the Lords in Parl against Tho Becket Arch-b of Can. in K. Hen. 2. raign cited by M. Selden of which you may chuse the same with the punctuall authority of Andr. Horne in his Mirror of Justices c. 1. § 2. forecited First in Pleas of the Crown and other Common Pleas plainly â—â—able in Parl as well between CoÌ„moners as Peers the Pleas have been exhibited heard and judgement given upon them by the King and Lords joyntly or the King alone by which the Lords assent or by the Lords themselves without the CoÌ„mons as is evident by the Parli Rolls and Pleas in Parl in K. Ed. 1. 2. 3. 4. Ric. 2. Hen. 4. 5. 6. where there are hundreds of instances to confirm it some of them printed in Sir Edw. Cokes 3 Instit c. 1 2. and M. St Johns Argument in Law upon the Bill of Attainder against the Earl of Strafford Secondly in all * 18 E. 1. rot Parl. t. 4 E. 3. n. 13. 21 E. 3. n. 65. 28 E. 3. n. 11 12. 50 E. 3. n. 48. 1 R. 2. n. 28 29 104. 2 R. 2. n. 36 37 31 32 33. Parl. 2. n. 21 to 27. 3 R. 2. n. 19 20 21. 7 R. 2. Parl. 2. n. 23 24. 8 R. 2. n. 14 15. 13 R. 2. n. 15 16. 15 R. 2. 22 23. 17 R. 2. n. 13 14 15 19. 18 R. 2. n. 11 10 16. 21 R. 2. n. 25 55 to 66. 1 H. 4. n. 91. 2 H. 4 n. 47 48. 5 H. 4. n. 40. 6 H. 4. n. 31 61 62. 3 H. 5. n. 19. 10 H. 6. n. 51. Writs of Error brought in Parl by Peers or CoÌ„moners to reverse any erroneous judgements touching their reall or personall Estates lives or attainders The KING LORDS ONLY ARE JUDGES and the proceedings upon such Writs are ONLY BEFORE THE LORDS IN THE UPPER House secundum Legem coâ—suetudinem Parliamenti So Sr Ed. Coke in direct terms in his 4. Instit p. 21 22 23. where he produceth divers presidents of such writs of Error out of the Parl Rolls and present experience manifests as much in all the the writs of Error brought this Parl adjudged and determined by the King and Lords alone without the privity of interposition of the CoÌ„mons A truth so clear that Lilburne himself in his Argument against the Lords Jurisidiction confesseth it and the Parl Rolls quoted in the Margine with sundry others resolve past all dispute If then the Lords be the sole Judges in all writs of Error concerning the goods estates free-holds inheritances lives and attainders of the Commoners of England notwithstanding the statute of Magna Charta c. 29. No Free-man shall be taken or imprisoned or disseised of his Free-holder Liberties of Free-customes nor outlawed nor exiled neither will we passe upon him nor condemn him but by THE LAWFUL IUDGMENT OF HIS PEERS c. the grand and principall objection against their Iudicature then by the self-same reason they are and may lawfully proceed against them in all other civill or criminall causes especially breaches of ther own priviledges of which themselves are the sole and only Iudges the cases of Lilburne and Overton properly triable in Parliament Thirdly in all Petitions and complaints against CoÌ„moners for redresse of grievances the King and Lords are the sole and proper Tuns and Judges not the CoÌ„moners as appears by all the Parl Rolls in former times wherein we find in the beginning of every Parl some Assistants of the Lords house appointed by them to be receivers of the Petitions of England Ireland Wales Scotland others appointed receivers of the Petitions of Gascoyne other parts beyond the Seas and the Isles of Jersy and Gernsey c. And some Lords appointed tryers of those Petitions who had power given them to call the L d Chancellor Treasurer Steward Chamberlain the Judges Kings Serjeants and others to their assistance prescribing also by what day the Petitions should all be exhibited and the place where they should be examined All particular persons usually presenting all their grievances and petitions immediately to the King Lords without any addresse to the CoÌ„mons by Petitions as now of late there being no Petitions of record in the Parl Rolls addressed immediately and originally to the Commons that I can find And towards the end of the Parl Rolls there is this Title usually The Petitions of the CoÌ„moners containing all Petitions of the CoÌ„mons house for redresse of publick or particular injuries and grievances presented to the King in the Lords house and answered by the King alone with the consent of the Prelats Counts Barons with which answers the Commons rested satisfied whether granted or denied as ofttimes they were Of which you may read somthing in Sr E. Cokes 4. Instit p. 16. more in the Records themselves Fourthly in all criminal causes in Parl by way of accusation impeachment or indictment the King Lords were the proper Judges as is evident by Placita Coronae coram
which they never yet read nor understood there remaines nothing but to answer some Presidents and Objections The Principall president insisted on by Lilburne Object 1. is the Protestation of the Lords in the case of * Cooke 2. Instit p. 50. Sir Simon Beresford 4. E. 3. nu 6. which I have already fully answered retorted and shall therefore here pretermit The second is Sir Edward Cookes Authority Object 2. and the presidents cited by him in his 4. Institutes p. 23. 24. of Judicature in Parliament where thus he writes It is to be knowne THAT THE LORDS IN THEIR HOUSE HAVE POWER OF JUDICATURE And the Commons in their House have power of Judicature and both Houses together have power of Judicature But the handling thereof according to the weight and worth of the matter would require a whole Treatise of it selfe and to say the truth it is best understood by reading the Judgements and Records of Parliament at large and the Journalls of the House of the Lords and the Booke of the Clerke of the House of Commons which is a Record as it is affirmed by Act of Parliament in An. 6. H. 8. c. 16. To which he addes these marginall Notes Vide Placita in Parlians Anno 33. E. 1. rot 33. Nicholas Seagrave adjudgâ— Par Praelatos COMITES BARONES ET ALIOS DE CONCILIO At the Parliament at Yorke Ap. 12. E. 3. Consideratum est per Praelatos Comites BARONES ET COMMVNITATEM ANGLIAE the Lord Audleys care At the Parliament at Westm 15. E. 2 Hugh le pier adjuge per les SEIGNIEURS COMMONS Rot. Parl. 50. E. 3. n. 34. Lord Nevils case Then he aâ—des See Rot. Claus 1 R. 2. n. 5. 8. 38. â—0 A tresage Councell le Roy Les SEIGNIORS COMMONS c. Rot. Parl. 2. H. 5. nu 1â— Errâ—ra sinned THAT THE LORDS gave Judgement WITâ—OVT PETITION OR ASâ—â—NT OF THE COMMONS Rot. Parl. 28. H. 6. nu 10. and many others in the Reigne of King H. 6. and Kin E. 4. And of later times see divers notable Judgements at the prosecution of the Commons By THE LORDS at the Parliaments â—â—â—den 18. and 21. Iac. Regis against Sir Giles Mompesson Sir Iohn Michell Viscount St. Albon Lord Chancellor of England the Earle of Middlesex Lord Treasurer of England whereby the due proceedings of Iudicature in such Caces doth appeare Then hee cites the cases of * 8. Eliz. Thomas Long * 23 Eliz. Arthur Hall * 2. Aâ—â—â—l 1. Maâ—â—â— and Muncton censured by the House of Commons only and by them fined and imprisoned without the Lords Aâ—d concludes thus If any Lord of Parliament spirituall or temporall have committed any Oppression Bribery extortion or the like the HOUSE OF COMMONS BEING THE GENERALL INQUISITORS OF THE REALME comming out of all parts thereof may examine the same and if they find by the Vote of the House the charge to be true then they TRANSMIT THE SAME TO THE LORDS WITH THE WITNESSES and PROOFES From which passages of his some ignorantly have concluded That the Lords have no power of Judicature without but only joyntly with the Commons That all Commoners ought to be judged only by the Commons not by the Lords and That the Commons have a sole power of Judicature in cases of Commoners and the Lords no power but joyntly with them or upon their preceding Petitions and impeachments neither in case of Commoners nor Peers I answer that Sir Edward Cookes words are much mistaken and rightly understood warrant no such inferences but the contrary For first he clearely confesseth in direct termes That the Lords in their House have a power of judicature even without the Commons ha he deâ—med particularly in whose and in what cases out of the Judgements Records and Journals of Parliament at large to which he refers the Reader a being best understood by reading them which warrant the Lords judging fining imprisoning and condemning to death not only of Peers but of Commoners themselves without the Commons as I have fully manifested their could no such inference have been made Secondly â—e addeâ— That the Commons in their House have a power of Judicature From whence Lilburne and others inferre That they are and ought to be the sole Judges of all Commoners and not the Lords in all cases triable in Parliament But this is a most grosse mistake Sir Edward Cooke confining this Judicature of theirs only to these three câ—ses First to matters and abuse concerning elections of Knights Citizens and Burgesses being Members of the Commons House the judgment and determination whereof the Commons alone of late times only have usually taken upon them without the Lords which he proves by Thomas Longs case 8. Eliz. and no greater antiquities of which elections the King and Lords in former times have been sole Judges for which I shall cite some memorable records worthy the Lords and â—â—mmons consideration who now take upon them to suspend ejeâ—â— Judge their own Members elections without the Kings or Lords concurrence or privity a practice not heard of in former ages and of late originall In the Parliament holden at Westminster 5. H. 4. Rot. Parl. num 38. Thomas Thorpe his case Item because that the writ of summons of Parliament returned by the Sheriffe of Roteland was not sufficiently nor duely 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 their shall be default found in this matter that such a punishment might be inflicted which might become exemplary to others to offend againe in the like manner Whereupon our said Lord the King IN FULL PARLIAMENT commanded THE LORDS IN PARLIAMENT TO EXAMINE THE SAID MATTER and to doe therein AS TO THEM SHOULD SEEME BEST IN THEIR DISCRETIONS And thereupon the SAID LORDS caused to come BEFORE THEM IN PARLIAMENT as well the said Sheriffe as William One by who was returned by the said Sheriffe for one of the Knights of the said County and Thomas Thorpe 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 Sheriffe And the said parties being duely examined and their reasons well considered in the said Parliament IT WAS AGREED BY THE SAID LORDS that because the said Sheriffe had not made a sufficient returne 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 Countie for the Parliament and moreover that the said Sheriffe for this default SHALL BE DISCHARGED OF HIS OFFICE and COMMITTED PRISONER TO THE FLEET and that he should MAKE FINE and RANSOME AT THE KINGS PLEASURE Loe here the Lords in Parliament at the Commons request and by the Kings command examining and giving judgement in case of undue election even without the
Iudicature and this is all which is proved by 15. E. 2. Hugh Spencers case who was judged and banished by an Act of Parliament intituled Exilium Hugonis le Spencer printed in old Magna Chartaes as Sir Edward Cooke himselfe reports in Calvins case 7. Report f. 11. b. and the Lord Audlyes case 12. E. 2. is the same the Commons having no right to judge them being Peers by the very * See Cooke 2. Instit f. 49. 50. 51. Statute of Magna Charta c. 29. but only the Peer except in a Legislative way by Act or Bill Secondly That in all cases of difficultie where the King shall please to demand the advise and opinions of both Houses of Parliament joyntly there both of them may and ought to joyne in delivering their opinions and Judgements of the case or thing propounded and this is all that * Cooke 3. Iâ—qâ— p 7. where is Case of â—â—grave is cited at large Sir Nicholas de Seagraves case proves 31. E. 1. rot 33. Who being charged in Parliament in presence of the King Earles Barons and OTHERS OF THE KINGS COUNCEL not the Commons or Burgesses but the Iudges and Kings learned Councell at Law * See the Free-holders Grand Inquest 2. 39. 40. 41. 42. and Privy Councell who were assistants to the Lords as I conceive and others of his Privy Councell which Sir Edward Cooke would have to expresse the Commons in Parliament then and there present that the King in the wars of Scotland being among his enemies Nicholas Seagrave his leigman who held of the King by Homage and fealty and served him for his ayd in that warre did maliciously move discord and contention without cause with John de Crombewell charging him with many enormous crimes and offered to prove it upon his body To whom the said John answered that hee would answer him in the Kings Court c. and thereupon gave him his faith After which Nicholas withdrew himselfe from the Kings host and ayd leaving the King in danger of his enemies and adjourned the said John to defend himselfe in the Court of the King of France and prefixed him a certaine day and so as much as in him was subjected and submitted the Dominion of the King and Kingdome to the subjection of the King of France and to effect this hee tooke his journey towards Dover to passe over into France All which he confessed and submitted himselfe therein de alto et basso to the Kings pleasure And hereupon the King willing HABERE AVISAMENIUM to have the advise of the EARLES BARONS LORDS magnatum and OTHERS OF HIS COUNCELL enjoyned them upon the Homage fealty and allegiance wherewith they were obliged to him quod ipsi fideliter CONSVLERENT they should faithfully ADVISE HIM what punishment should be inflicted for such a fact thus confessed Qui omnes habito super hoc diligenti tractatu avisamento c. Who all having had thereupon diligent debate and advise having considered and understood all things contained in the said fact DICVNT not by way of Iudgement judicially pronounced but of answer to the Kings question propounded and as their opinion of the cause Said that this fact DESERVES losse of life and members c. So as this offence notes Sir Edward Cooke was then adjudged in Parliament to be High Treason But under his favour First here was no Judgement at all given against the party himselfe but only an opinion and advise touching his case not pending judicially in Parliament by way of Inditement or Impeachment but voluntarily proposed by the King in answer to the Kings question and so it can be no proofe of any actuall proper Judicature vested in both Houses Secondly For ought appeares this question was only propounded to the Earles Lords Barons and the Kings Councell that assisted them and so only to the House of Peers not to the commons and answered resolved only by them * See the Freeholders grand Inquest p. 39. 40. 41. 42. aliorum de Concilio suo not expressing nor including the Commons as I apprehend being never so intitled in any Parliament Records for ought I can find And then it followes that the LORDS ONLY IN THAT AGE were the Judges even of Commoners cases Thirdly Admit the Commons were included yet it proves only a right of advising and delivering their opinions with the Lords when required by the King not of judging or pronouncing sentence Fourthly Sir Edward Cooke citing this president to prove That both Houses together have power of Iudicature must grant that even in 33. E. 1. there were two distinct Houses of Parliament who upon speciall occasions as now at conferences c. met and advised together and therefore the division of the Houses was before Edward the third his raigne and very probable as ancient as this summoning of Knights Citizens and Burgesses of the Parliament which some make no ancienter then King Henry the first or King Henry the third In the 40. yeare of his reigne Father to King Edward the first So as this president makes quite against the Levellers and Lilburnians designes The Freeholders Garnd Inquest p. 13. 14. 15. and opinions Fourthly Sir Iohn at Lees case 42. E. 3. num 20. said to be adjudged by the Lords and Commons is somewhat mistaken For the record only mentions That the 21 day of May the King gave thanks to the Lords and Commons for their coming and ayd granted on which day ALL THE LORDS SVNDRY OF THE COMMONS dined with the â—ing After which dinner Sir Iohn at Lee was brought before the King LORDS COMMONS next aforesaid who dined with the King to answer certaine 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 obâ—ected against the said Sir Iohn Of which for that he could not sufficiently purge himselfe HE was committed to the Tower of London there to remaine till he had made fine and ransome 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 Councell at Westminster which COVNSELL ORDERED the said ward to be released into the Kings hands So as this record proves not this judgement was given in the Parliament house nor that the Lords and Commons adjudged Sir Iohn but rather the King and his Councell in the presence of the Lords and Commons Fifthly The judgement given against the Lord Latymer 15. E. 3. Parl. rot num 27. which was for his default in government against the profit of the King and Realm procuring of grants to the destruction of the Staple and Towne of Calayes and levying Impositions upon woolls was given in full Parliament BY THE BISHOPS and LORDS who
Committees and proceedings contrary to the rules of Law and Iustice to right all grieved Petitioners especially such who have waited at least seven yeares space at your doores for reparations relieve poore starved Ireland and raise up the almost lost honor power freedome and reputation of Parliaments by acting Honorably and heroically like your selves without any feare favour hatred or selfe-ends and confining your selves the Commons House to the ancient bounds and rules of Parliamentary Iurisdiction and proceedings and to excell all others as farre in Iustice Goodnesse and publike resolutions as you do in Greatnesse and Authority Which that you may effectually performe shall be the the prayer of Your Lordships in all humble Service W. PRYNNE A PLEA For the LORDS OR A short yet full and necessary Vindication of the Judiciary and Legislative Power of the House of Peeres and the Hereditary just Right of the Lords and Barons of this Realme to sit vote and judge in the high Court of Parliament THe treasonable and destructive designe of divers dangerous Anabaptists Levellers Agitators in the Army City Countrey and of Lilburne Overton their Champions and Ring-leaders in this Seditious Plot to dethrone the King unlord the Lords new-modell the House of Commons extirpate Monarchy suppresse the House of Peers and subvert Parliaments the onely obstacles to their pretended Polarchy and Anarchy are now so legible in their many late printed Petitions Libells Pamphlets and visible in their actings and publike proceedings that it rather requires our diligence and expedition to prevent then hesitancy to doubt or dispute them they positively protesting against and denying both King and Monarchy in their a A Remonstrance of many thousand aâ—zens to their own House of Commons p. 6. the just mans Justification p. 10. Regall Tyranny Discovered A Declaration from his Excellency and the Generall Counsell of the Army Ian. 11. 1647. p. 7. Speeches c. at a Conference newly published by Walker printed verbatim out of Dolman the Iesuit his Booke condemned Pamphlets and Remonstrances with the Power and Judicature of the House of Peers and their undoubted just Hereditary right to Vote act or sit in Parliament because they are not elected by the people as Knights and Burgesses are asserting b Lilburnes Iust Man in Bonds p. 1 2. A Pearl in a Dunghill The Free-mans Freedome Vindicated An Anatomy of the Lords Tyranny his Argument and Plea before the Committee against the Lords Authority his Petition to the Commons his Letters to Henry Martin Overtons Arrow of Defiance shot into the Prerogative Bowells of the House of Lords his Petition and Appeale A Defiance against Arbitrary Vsurpation The Agreement of the People and Petitions wherein it was presented to the House of Commons An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 192. to 204. That they are no naturall issues of our Lawes but the Exorbitances and Mushromes of Prerogative the Wenns of just Government the Sons of Conquest and usurpation not of choice and election intruded upon us by power not made by the people from whom ALL POWER PLACE and OFFICE that is just in this Kingdome OUGHT TO ARISE meere arbitrary Tyrants Vsurpers an illegitimate and illegall power and Judicatory who act and Vote in our affaires but as INTRUDERS who ought of right not to judge censure or imprison any Commoner of England even for libelling against them refusing to appeare before them reviling and contemning them and their Authòrity to their faces at their very Barre as Lilburne Overton bost and print they did or breaking any of their undoubted Priviledges And to accomplish this their designe the better they endeavour by their most impudent flattery to ingage the House of Commons against the House of Peers the better to pull them downe stiling and proclaming them in their c Overtons Petition and Appeal to the High and mighty States the Knights and Burgesses in Parliament assembled Englands legall Soveraigne Power The Râ—monstrance of many thousands to their own House of Commons A printed Petition now in agitation of many Freeborne people to the only Supreme Power of this Realme the Commons in Parliament assembled The Anatomy of the Lords Tyranny An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 154. to 204. Petitions and Pamphlets The ONLY Supreme legall Judicatory of the Land who ought BY RIGHT to judge the Lords and their proceedings from whom they appeale for right and reparations against the House of Peeres affirming That in the Commons House alone resides the formall and legall Supreme Power of England who ONELY are chosen by the people and THEREFORE IN THEM ONELY is the power of binding the whole Nation by making altering or abolishing Lawes without the Kings or Lords concurrent assents to whom they now absolutely deny any Negative voice making the Commons a compleat Independent Parliament of themselves and therefore present all their Petitions and addresses to them alone without any acknowledgement or notice of the House of Peers to whom they deny any right or title to sit or vote in Parliament unlesse they will first divest themselves of their Peerage and Barons right of Session and submit to stand for the next Knights and Burgesses place in the House of Commons that shall fall void where if they may have any voice or influence the meanest Cobler Tinker Weaver or Water-man shall be elected a Knight or Burgesse sooner then the best and greatest Peer and John of Leyden preferred before King or Prince Charles Sic Sceptra ligonibus aequanti which Petitions and Pamphlets of theirs have so puffed and bladdered up many Novices and raw Parliament-men in the Commons House unacquainted with the bounds proceedings and originall Constitution of Parliaments and the Lawes and Customes of England that they begin to act vote and dispose of the Army Navy c. without and against the Lords not expecting their concurrence contrary to all former proceedings of Parliament the Lords just Priviledges and their own Solemne League and Covenant to maintaine them which may prove destructive to both Houses the Parliament Kingdome and oppressive to their Representatives the people who generally dislike it if not timely redressed and breeds such a deadly feud between the Houses as may ruine them both and the Kingdome to boot The end of these Anabaptists Levellers and Lilburnians being only to * See M. Edwards Gangraena part 3. where this is fully demonstrated destroy the Parliament by setting both Houses at variance they inveighing as bitterly against the power proceedings Ordinances Votes Power Members undue Elections and unequall Constitutions of the House of Commons as the Lords and therefore have so earnestly pressed in their d Lilburnes Letter to a friend Innocency and Truth justified and his late Letters to Cromwell Martin Sir Thomas Fairfax and others Englands Birthright Englands lamentable Slavery Another word to the wise Comparata Comparandis Liberty against Slavery The
Arraignement of Persecution The Ordinance against Tythes unmounted See Mr. Edwards Gangrana part 3. p. 209. to 204. Pamphlets and by some late e See the severall Remonstrances from his Excellency and the Army from June till December last The agreement of the people the grand Designe Putâ—ey Projects Remonstrances and Engagements from their Confederates and Agitators in the Army a speedy period and dissolution of this Parliament and a new modelling and more equall distribution of Members in the very House of Commons for the future All which Petitions Papers Remonstrances and Pamphlets of theirs tending to the utter subversion of Parliaments the fundamentall Lawes and Government of the Kingdome and introduction of all arbitrary popular Polarchy and Tyranny are rather to be ranked among and more agreeable to the Earle of Straffords and Canterburies Treasons which they exceed by many degrees then to be sleighted or countenanced as they are the keeping up of the honour of Peers and rights and Priviledges of both Houses within their just bounds without interfeiring or incroachment upon one another or invading the peoples just Liberties and Rights being the onely meanes of their and our preservation settlement security upon which consideration I shall endeavour as briefly and fully as I may to vindicate the undoubted Right of the Lords and Peers of this Realme to sit and vote in Parliament notwithstanding they are not elected by the people and make good the right and power of Judicature as well of Commoners as Peers against all cavills of the Anabaptisticall Levellers Lilburnians Sectariâ—s Agitators and I hope so farre to silence and stop their mouthes if not convince their judgements that they shall never be able to reply again hereto The sum of all they object against the Lords right of sitting voting and judging in Parliament is this f Overtons Defiance against all arbitrary usurpation of the House of Lords p. 5. 6 15. 17. 18. his Arrow against all Tyrants p. 6 10. 11. 12. and others forecited That they sit there only by Patent the Kings will Tenure or descent not onely by the Peoples free Election as the Knights Citizens and Burgesses doe That the people never intrusted nor invested them with any power but the King they represent themselves onely not the Commons and the Sonnes onely of Conquest brought in by the Conquerour of Usurpation not of Choice and Election 1. To this I answer first That our Earls Barons Nobles and Archbishops Bishops and Abbots too who held by Barony sate anciently in all our Parliaments and Generall Counsells and Assemblies many hundred yeares before the Conquest by right of Peerage and Tenure as now they doe as Modus tenendi Parliamentum g Epist to his 9. Report Institutes on Litleton p. 110 4. Institutes c. 1. Sir Edward Cook Vowell h M. Seldens Titles of Honour part 2. ch 5. where this is abundantly manifested Spelmaâ—ni Concil tâ—m 1. Truth triumpâ—ing over Falshood antiquity over Novelty p. 36 c. The Freeholders Grand inquest p. 4. to 20. and others write and our Historians record therefore this is a grosse mistake That they are the Sonnes of Conquest introduced by the Conquerour the rather because in all Empires and Kingdomes in the world though free and never conquered their Princes Nobles Lords and great Officers of State have ever sate in all their Parliaments Senates and Generall Counsells of State by reason of their Honors and places only without any popular Elections as is cleare by these Texts of Scripture 1 Chron. 13. 1 2. c. 28. 1 2. c. c. 29. 1. 6. 24. 2 Chron. 1 2 3. c. 5. 3. 4. c. c. 23. 2. 3. 20. 21. c. 30. 2. 3. 6. 12. c. 34. 29. 30. c. 35. 7. 8. Neh. 9. 38. c. 10. Esther 1. 13. to 22. Dan. 3. 2. 3. 2 Chro. 29. 30. c. 32. 3. Ezra 9. 1. c. 10. 8. 1 Sam. 5. 8. c. 29. 3. to 10. Psa 68. 27. Prov. 8. 15 16. Isa 19. 11. 12. 13. Jer. 17. 25. c. 26. 11. 16. c. 36. 12. 14. c. 37. 14. 15. c. 38. 4. 25. 27. Dan. 6. 1. 6 7. Jonah 3. 7. Psa 2. 2. Isa 1. 23. 26. compared together and by all Historians and Polititians testimonies 2. Secondly that they sit there onely by the Kings Patent is false for first many Peeres and Nobles have been created in and by i See M. Seldens Titles of Honour p. 2. ch 5. 14. â— 3. c. 35. 9. R. 2. n. 16. 20. R. 2. n. 80 1. H. 4. â— 81. with many more Parliament at the Commons and Peoples earnest Petitions and by Patents confirmed in Parliament of which there are many Presidents Secondly though the Kings Writ or Patent create others of them Peers and Baroâ—'s without the peoples consent yet the Lawes and Statutes of the Realme made by the Commons consents and approved by the people allow the King this power and authorize and k 5. R. 2. Stat. 2. c. 4 31. H. 8. c. 10. enjoyne Lords and Barons to sit in Parliament when thus created if there be no just exceptions taken to them by the Houses therefore though they are created Lords and Peers and sit in Parliament by the Kings Patent and Writ onely by way of instrument and conveyance yet originally and really they are made and sit there by the Lawes and Statutes of the Realme to which all the people have consented of which more hereafter Thirdly all ancient and new Cities and Burroughs who send Citizens and Burgesses to Parliament and the Divisions of Counties were originally created and invested with this power to elect Citizens Burgesses and Knights for the Parliament l Lâ—e Lit. c. 10. Sect. 162 164. Cook Ibidem 49. Ass 8. only by the Kings Letters Patents and Charters not by the peoples election and choice and none of them do or can choose or send Knights Citizens and Burgesses to Parliament m Cook 4. Instit c. 1. Crâ—mptons Jurisdiction of Couâ—ts c. 1. 1. R. 1. c 4. 8. H. 4 c. 14 8. H. 5. c. 7. 32. H. 6. c. 15 14 H. 5. c 3 l. 1. H. 7 12 2 H. 7. 13. a. 5. H 7. 9. H. 7. 12. 14 H. 6. 12. 7. â— 4. 14 15. â— 4 15. Cooâ— 1. 〈◊〉 250. a. without the Kings Writ directed to them but onely by power and vertue of it therefore if the Lords sitting in Parliament be illegall and unwarrantable because they sit onely by Patent and Writs from the King the sitting of Knights Citizens and Burgesses must be so too because they are elected only by the Kings Writ and enabled to elect and choose them only by his Patents the power of * creating Cities Burroughs and Knights being originally in the King as well as the power of creating Lords and Barons 3. Thirdly that the generall election of the people is not absolutely necessarie nor essentiall to the making of a King Magistrate Counseller of State Peer or member of Parliament
to make such Knights Citizens and Burgesses lawfull Members of Parliament and to represent the Commons of England without any election of the people the Laws made by our Ancestors in Parliament See Littleton Fitz-Herbert Brut. Ashly Tit. VVarranty Obligat Covenant c. obliging their posterity whiles unrepealed as well as their Warranties Obligations Statutes Feofements Morgages and alienations of their Lands as the Objectors must acknowledge therefore they must of necessity grant their present sitting voting and judging too in Parliament to be lawfull because thus warranted by the Lawes and Customes of the Realme 4. If all Power in Government and right of sitting judging and making Lawes or Ordinances in Parliament be founded upon the immediate free election of all those that are to be Governed and of necessity that all those who are to be subject and they ought to be represented by those who have power in Government the Summe of f See M. Edwards his Gangraena part 3. p. 142. to 162. Lilburnes Overtons and the Levellers reasons against the Lords Iurisdiction then it will of necessity follow that the orders Votes Ordinances and Lawes made by or consented to by the Knights Citizens and Burgesses in Parliament ought not to bind any Ministers Women Children Infants Servants Strangers Freeholders Citizens Burgesses Artificers or others who cannot well or properly be represented but by persons of their owne sex degrees trades and callings and so every sex trade calling in each County and Corporation in England should send Members of their own to Parliament to represent them but only such Freeholders and Burgesses who had voices in and gave free consent to their Elections not any who have no voyces by Law or dissented from those elected and returned yea then it will necessarly follow that those Counties Cities and Burroughs whose Members have been injuriously impeached suspended driven away or thrust out of the House of Commons by the objectors and the Armies practise and violence contrary to all former presidents are absolutely free exempted and not bound by any Votes or Ordinances made or taxes imposed by the Commons House because they have no Members to represent them residing in Parliament and that those Counties and Burroughs whose Knights and Burgesses are dead or absent are no wayes obliged by any Votes Ordinances or Grants in Parliament And then how few in the Kingdome will or ought to yeeld obedience to any the Acts Ordinances or Votes of this present Parliament or to any Mayors Sheriffes Aldermen or Heads of Houses made by their Votes and Authority usually made by election heretofore or to any Iudges Justices Governours Generalls Captains or other Military Officers made by their Commission or appointment without the generality of the peoples Votes or consent especially when above halfe or three full parts of the Members were absent or driven from both Houses by the Objectors violence and menaces These Answers premised I shall now proceed to the proofe of the Lords undeniable Right and Authority to sit Vote and give Judgement in Parliament though not actually elected and called by the people as Knights and Burgesses are 1. It is evident by the Histories Republikes of most ancient and modern Kingdomes and Republikes in the world that their Princes Nobles Peers and great Officers of State have by the Originall Fundamentall Lawes and Institutions by right of their very g 31. H. 8 c. 10 See M. Seldens Titles of Honor Cassanaeus Catalogus Gloriae Mundi Alanso Lopez in Nobiliario and others who write of Nobility Cambd. Brit. of the Noâ—â—lity and Courts of Iustice in England Nobility Peerage and great Offices without any particular election of the people a just right and title to sit consult Vote enact Lawes and give Iudgement in all their Generall Assemblies of State Parliaments Senates Diets Councells as might be mainfested by particular instances in the Kingdomes Republikes Parliaments Diets and Generall Assemblies of the Iewes Egyptians Grecians Romans Persians Ethiopians Germans French Goths Vandalls Hungarians Bohemians Polonians Russians Swedes Scythians Tartars Moores Indians Spaniards Portugalls Danes Saxons Scots Irish and many others And to deny the like priviledge to our English Peers and Nobles which all Nobles Peers in all other Kingdomes Nations Republikes anciently have done and yet doe constantly enjoy without exceptions or dispute is a grosse unjury injustice and over-sight yea a great dishonor both to our Nobility and Nation Secondly By and in the very primitive constitution of our English Parliaments it was unanimously agreed by the Kingdomes and peoples generall consents that our Parliaments should be constituted and made up not of Knights and Burgisses onely elected by * E. H 6. c. 7. 10. H. 6. c. 2. 32 H. 6 c. 15. Crumpton Jurisdict p. 1. 2. 3. Cooke 4 Instit c. 1. Freeholders and Burgesses not by the generality of the vulgar people who would now claime and usurpe this right of election but likewise of the King the Supream Member by whose h Cooke Instit c. 1. n. 1. 10. Modus Tenendi Parliamentum Crompton Jurisdiction of Courts Tit. Parliament M. Seldens Tit. of Honour par 2. c. 5. writs the Parliaments were to be sommoned and by the Lords Peers Barons ecclesiasticall and civill and great Officers of the Realme who ought of right to sit vote make Lawes and give Judgement in Parliament by vertue of their Peerage Baronries and Offices without any election of the people the Commons themselves being no Parliament judicatory or Law-givers alone without the King and Lords as Modus tenendi Parliamentorum Sir Edward Cooke in his 4. Institutes ch 1. Mr. Seldens Titles of Honor part 2. ch 5. Vowell Camden Sir Thomas Smith Cowell Minshaw Crompton with others who have written of our English Parliaments assert and all our Parliament Rolls Statutes and i 33. H. 6. 16. Br. Parliam 4. 39. E 3. 7. 35. 11. H. 7 27. Br Parl. 107. 4. H. 7. 18. 7 H. 7. 14 Crumptons Iurisd f. 9. Co. 4. Institutes n 15 35. Fit f. 20. Dyer 92. Iudge Huttons Argument of Mr. Hamdens case p 32. 33. Law-bookes resolve without whose threefold concurrent assents there is or can be no Act of Parliament made Thirdly This right of theirs is confirmed by prescription and custome from the very first beginning of Parliaments in this Kingdome till this present their being no one president to be found in History or Record of any one Parliament held in this Island since it was a Kingdome without the King personally or representatively present by a Protector Custos or Regni Commissioners as he ought to be or without Lords and Peeres anciently stiled Aldermen Heretockes Senators Wisemen Nobles Princes Earles Counts Dukes c. by our Historians who make mention of their resorting to fitting voting and judging in our Parliaments Generall Assemblies and Councels under those Titles without the peoples Election long before the Conquerors time in the anciented Parliaments and Councels we read of
Viscounts and Barons who sit there by reason of their dignities which they hold by discent or creation And likewise EVERY ONE OF THESE being of full age OUGHT TO HAVE a writ of summons EX DEBITO JUSTITIAE The third estate are the Commons of the Realme whereof there bee Knights of Shires or Counties Citizens of Cities Burgesses of Burro All which are respectively by the Shires or Counties Cities Buroughs by force of the Kings writ Ex debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realme and trusted for them and are in number at this time 493. Headed And it is observed that when there is best appeareance there is the best succession in Parliament At the Parliament holden in the 7. yeare of H. 5. holden before the Duke of Bedford Guardian of England of the Lords Spirituall Temporall there appeared but 30. in all at which Parliament there was but one Act of Parliament passed and that of no great weight In An. 50. H. 3. ALL THE LORDS APPEARED IN PERSON and not one by Proxy at which Parliament as appeareth by the Parliament Roll so many excellent things were sped and done that it was called Bonum Parliamentum And the King and these three estates are the great Corporation or the body of the Kingdome doe sit in two Houses of this Court of Parliament the King is Caput Principium Finis The Parliament cannot begin but by the Royall Presence of the King either in person or representation by a Guardian of England or Commissioners both of them appointed under the great Seale of England c. And 42. E. 3. Rot. Parl. num 7. It is declared by the Lords and Commons in full Parliament upon demand made of them on the behalfe of the King That they could not assent to any thing in Parliament that tended to the disinherison of the King and his Crowne whereunto they were sworne And p. 35. he hath this speciall observation That it is oâ—served by ancient Parliament men out of Record that Parliaments have not succeeded well in five cases First when the King hath beene in diffeâ—ence with his Lords and with his Commons Secondly When any of the great Lords were at variance betweene themselves Thirdly When there was no good correspondence between the Lords and Commons Fourthly When there was no vnity between the Commons themselves in all which our present Parliament is now most unhappy and so like to miscarry and succeede very ill Fiftly When there was no preparation for the Parliament before it began every of which hee manifests by particular instances From all these and sundry z Judge Hâ—â—rons Argument of Mr. Hampdens case p. 32. 33. Daltons office of Sherriffs other Authorities it is most evident transparent That both the King himselfe and Lords ought of right to be present in Parliament and ever have been so as well as the Commons and neither of them to be excluded since they all make up but one Parliament ought of right and duty to be present at and no Lords and Commons to depart from it without speciall leave under paine of amercement and other penalties because no binding Law can be passed without their joynt consents And that the Commons alone are no more a Parliament of themselves without the King and Lords than the Common Councell of London are an intire Corporation without the Lord Major Aldermen or the Covent without the Abbot the Chapter without the Deane or the leggs or belly a perfect man without the head or neck Sixtly The ancient and constant forme of endorsing Bills in Parliament begun in the Commons House in all Parliaments since the Houses first divided 33. H. 6. 17. Brooke Parliament 4 Cromptons jurisdiction of Courts f. 8. Mr. Hackuel of the manner of passing Bills in Parliament unanswerably demonstrates the Commons of Englands acknowledgment of the Lords right to fit vote assent or disassent to Bills in Parliament viz. SOIT'BAYLE A SEIGNEURS let it be delivered or sent up to the Lords Yea the Commons constant sending up of their own Members with Messages to the Lords and receiving Messages from them and intertaining frequent conferences with them in matters where their opinions differ in which conferences the Lords usually adhere to their dissents unlesse the Commons giveth emsatisfaction and convince them and the Lords oft times convince the Commons so farre as to consent to their alterations of Bills Ordinances Votes and oft to lay them quite afide is an unquestionable argument of their Right to sit and vote in Parliament and of their Negative Voyce too All which would prove but a meer absurdity and superfluity if the Commons in all ages and now too were not convinced that the Lords had as good right to sit and vote in Parliament and a Negative and dissenting voyce as well as they never once questioned or doubted till within this yeare or two by some seditious Disciples of Lilburnes and Overtons entering who endeavoured to evade their justice on them Seventhly This just Right of the Lords is expresly and notably confirmed by all the Commons of England in the Parliament of 31. H. 8. c. 10. concerning the placing and sitting of the Lords and Great Officers of State in the Parliament House made by the Commons consent It being in vaine to make such a Law continuing still till this very day both in force and use if they had no lawfull right to fit and vote in Parliament because they are not elective as Knights and Burgesses are And by the Statute of 39. H. 6. c. 1. made at the Commons own Petition to repeale the Parliament and all proceedings of it held at Coventry the yeare before by practice of some seditious persons of purpose to destroy some of the great Nobles faithfull and Lawfull Lords and Estates meerly out of malice and greedy and unsatiable coveteousnesse to possesse themselves of their lands possessions Offices and goods whereby many great Injuries Enormities and Inconveniences well nigh to the ruine decay and universall subvertion of the Kingdome ensued The very designe of our Lilburnists Sectaries and Levellers now out of particular malice and coveteousnesse to share the Lords and all rich Commoners lands and estates between them being poore and indigent covetuous people for the most part scarce forty of them worth one groat at least before these times This apparent Right of theirs is undeniably ratified and acknowledged not only by the very words of the writs by which the Lords themselves are summoned to the Parliament but even of the writs for election of Knights and Burgesses the forme and substance whereof are ancient and can receive NO ALTERATION NOR ADDITION but by Act of Parliament as b Institutes 4 p. 10. Sir Edward Cooke resolves By this writ the Prelates Nobles and others of the Realme are summoned to the Parliament there to treat and conferre with the King
Spencers who seduced the King and oppressed the people and principall Pillars of our Laws Liberties as our m Walsingham Holingshed Daniel Speed Stow Grafton Fabian Baker Historians relate at large procured thâ—se ill Counsellours to be removed from the King even by force of Arms. In 10 11 22. of K. Rich. 2. the Lords were the principall opposers of the Kings ill Counsellours and Tyranny and protectors of the Laws and peoples Liberties to the losse of some of their lives hâ—ads and estates as our Statutes and Rolls of Parliament in those years and n Walsingham Trussle Fabian Holingshed Grafton Speed Stow. Historians witnesse whence Walsingham writing of the Duke of Gloucester's death murthered by the Kings command at Calice who was the principall Anti-royalist and head of all the Barons useth this expression Thus died this â—â—st of men the Son and Earl of a King in quo posita fuere spes solatium TOTIVS REGNI COMMVNITATIS in whom the hope and solace of the Common-wealth 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 and his Head and Quarters hung up in severall places and K. Richard among other Articles deposed for causing him to be murthered Since then our Peâ—trs and Nobles have been alwaies persons of greatest valour power estate interest most able and forwards to preserve the Laws and peoples Liberties which they have upon all occasions defended with the hazard and losse of their Lives Liberties and Estates and upon this ground were thought meet by the wisdome of our Ancestors to enjoy this priviledge of sitting voting and judging in Parliament by vertue of their Peerage and Baronnies And since we must all acknowledge that the Lords were the chiefe instruments of calling this present Parliament and were therefore in the Act for Trienniall Parliaments principally intrusted to summon and hold all future Parliaments in the Kings and Lord Chancellours or Lord Keepers defaulâ—â— and were very active in suppressing the Star-chamber High-Commission Councel-Table Prelats and other grievances and those who first appeared in the Wars against the King and his party to the great encouragement of others witnesse the deceased Lord Generall Essex Brooke Bedford Stamford Willâ—ngh by Lincolne 〈◊〉 Manchester Roberts and others it would be the extremity of folly ingratitude and injustice to deny our Peeres this Priviledge and Honour now which their Ancestors have purchased at so deare a rate and a meanes to dis-ingage them for ever from the Commons and Republike for such an high dishonour and affront Thirdly our o See Master Sâ—ldâ—us Titles of Honour Part 2 chap. 5. and Coke 4. instit p. 1. Nobles are persons of greater Estates Families Fortunes then others and have more to keep and lose then other ordinary Commoners and therefore have greater interest in the Common-wealth and State-affaires then they And therefore our Ancestors thought it meet and just that they should have this priviledge among others above ordinary Commoners to be present in all our Parliaments by Writ onely and that of right ex debitâ— justitiae and not by election as Knights Citizens and Burgesses are being persons of meaner estate and quality and present in Parliament onely in the right of others who elect them not in their owne right as the Lords are whose estates anciently were far more worth then many whole Burroughes put together and their families retainers and followers far more in number And so their engagements to maintaine the Lawes Liberties and Properties of the Subject greater then inferiour mens Fourthly It is one principall property of Members of Parliament to be p Coke 4. Inst p. 3. constant stout inflexible and not to be bowed or turned from the right and publike good by feare favour promises rewards Now Peeres of noble birth and education and more generous heroick spirits then the vulgar sort of men are not so apt to be over-awed with regall threats terrified with menaces tempted with honours preferments and wealth which they already injoy in a higher proportion then others nor seduced with rewards and private ends from the common good and interest wherein their honour wealth and safety are imbarqued as ordinary Commoners and men of meaner ranke and fortunes as experience of former Ages and this present manifests Therefore it was thought just and reasonable by our Ancestors these Nobles in this regard should sit in Parliament in their owne rights * Modus tenendi Parliam Vowel Coke 4 Inst c. 1. without the peoples election and to leave the people to elect such other persons to represent and vote for them in Parliament in whom they most confided Fiftly our Peeres in Parliament * 12 R. 2. c. 1â— 23 H. 6. c. 11. 9 H. 6. c. 16. 31 H. 8. c. 11. 50 E. 3. n. 209. 1 R. 2. n. â— 37. though they serve for the common good of the whole Kingdome which have alwayes trusted in them in matters of counsel Judicature and making Laws yet they represent up persons but themselves onely and beare their owne expences Wherefore there is no shadow of reason why the people should elect them since they doe not represent them nor pay them wages as they doe to their Knights Citizâ—ns and Burgesses who serve for and represent them and therefore ought in reason right and justice to be elected by them And therefore they may as well argue That our Nobles ought to be elected by the people to their Lands and Estates which descend unto them from their Ancestors not from the common people as to sit in Parlâ—ament by the peoples election onely to represent themselves in their own right not the people in theirs And that the Knights of the Shire ought to be elected to their dignity of Knighthood which the King onely confers on them and to their Lands and Freeholds which they enjoy in their owne right because they are elected by the Free-holders to sit in Parliament in their right who elected them not their owne alone which Barons doe not By all which premisses it is most apparent That our Lords and Barons sitting and voting in Parliament who if you take them poll by poll have in all ages been more able Parliament men and States-men in all respects then the Commons though chosen by the people who alwayes make choice of the best and wisest men as experience manifests is not onely just and lawfull in respect of Right and Title but originally instituted upon such grounds of Reason and Policy as no rationall nor understanding man can dislike or contradict but must subscribe to as necessary and convenient and so still to be continued supported in this their Right and Honour to moderate the Excesses and Encroachments both of King and Commons one upon the other keep both of them within their just and ancient bounds for the Kingdomes peace
safety The rather for that the very Act made this Parliament for the preventing of inconveniences happening through the long intermission of Parliaments not onely enacts but requires all the Lords and Barons of this Realme to meet and sit in every Parliament under a penalty but likewise prescribes an Oath to the Lord Keeper and Commissioners of the Great Seale under severe penalties to send forth Writs of Summons to Parliament to them all and in his default enabled and enjoyned the Peeres of the Realme or any twelve or more of them to issue forth Writs of Summons to Parliament under the Great Seale of England for the electing of Knights Citizens and Burgesses which Act will be meerly void and nugatory if their Votes and Right of sit in Parliament be denyed or the House of Peeres reduced to the House of Commons which this very Statute doth distinguish The Kings and Lords sole right of Judicature in Parliament without Commons cleerly evidenced The Lords Jurisdiction and undoubted Right to sit and Vote in Parlâ—ament being cleerly evicted and undâ—â—â—ably manifested by the Premises I shall next proceed to make good their Jurisdiction and lawfull Right of Judicature never questioned nor disputed till of late without the Commons concurrence To avoid mistakes and clear all scruples you must take notice that there is a two-fold proceeding in Parliament by way of Judicature and Censure First by Bill of Attainder and therein the King Lords and Commons must all concurre because such Judgement is given extrajudicially only by the Legislative power wherein the Commons have of Right a Vote and consent as well as the King and Lords and in this course of proceedings the King and Lords alone can doe nothing judicially without the Commons no more then make an Act of Parliament without them Of this kindâ— of Judgement and Attainder by Bill wherein the King Lords and Commons joyntly concurre there are sundry presidents both in cases Trespas Felony Treason and the like in our printed Statutes 1 H. 4. c. 6. compared with 9 H. 4. Exilium Hugonis de Spencer 15 E. 2. 1 E. 3. prologue and c. 2. 11 R. 2. c. 1 2 3. 5 6 7. 21 R. 2. c. 10 11 12. 9 H. 6. c. 3. 19 H. 6. c. 1. 3â— H. 6. c. 1. 25 H. 8. c. 12. 28 H. â— c. â—8 33. H. â— c. 21. 32 H. 8. c. 25. 2 and 3 E. â— c. 17 18. 1 Mar. c. 1. 16. â—â— Eliz. c. 1. 3. 3 Jac. c. 2. to which the Attaindors of the Earl of Strafford by Bill and Arch-bishop of Canterbury this very Parliament may be added Besides other presidents in the q See Plac. Coronae in Parl. 33 E. 1. Rot. 17. 22 John de Segraves case Plac. Corenae in Parl. 21 R. 2. n. 1. to 27 31 H. 6. n. 45. 64. 38 H 6. n. 9. to 26. Parliament Rolls many of which are cited by Sir Edward Cooke in his 3 Institutes c. 1. â— and M. S. John in his Argument as Law concerning the Bill of Attainder of High Treason of Thomas Earl of Strafford printed by Order of the Commons House Anno 1641. The like Presidents are extant in the Statutes of Ireland 28 H. 8. c. 1. for the Attainder of the Earl of Kildare and others 11 Eliz. c. 1. For the Attainder of Shan◠〈◊〉 and others â—3 Eliz. c. 6 and 7. For the Attainders of John 〈◊〉 Gerald and others An. 27 Eliz c. 1. For the attainder of James Eustuce and others 28 Eliz. c. 8 9. For the Attainders of the E. of Resmond John Brown and others 11 Jac. c. 4. For the Attainder of the Earl of Tyroâ—â— and others Secondly there is a formall Judgement given in Parliament in Causes civill and criminall upon Writs Petitionsâ— Indictments informations or Impeachments and that either against or between Peers themselves or against or between Commons who are â—â— Peers in both which the Lords have a proper Judiciary power without the Commons That they have such a legall and sole Judicatory in the case of Peers is * Cookes Instit on Magna Charta c. 14. 29. 3 Instit c. 1 2. 1 H. 4. 1. Stamf. l. 3. c. 1. 10. E. 4. 6. Bro. Triall 142. Treason 33. 29. 13 H. 8. 11. acknowledged by all who neither may nor ought by Law to be cryed or judge for any Treason or criminall cause unlesse in cases of †10 E. 4. 6. Coronae 34. Cooke 2. Instit p. 49. Triall Bro. 142. Appeale at the suit of the subject but only by the lawfull judgement of their Peers by the expresse provision of r Ch. 14. 29. 20 H. 6. c. 9. 26 H. 8. c. 12. 1 El. c. 1. 5. 5 El. c. 11. and diverse other Statutes See Ashes Tables Coâ—onae 84. Challenge 65. and 8. Magna Charta with sundry other Statutes and by the very Common Law This right of theirs in case of Peers is cleerly evident by the Judgement given in against Earl Goodwin in a Parliament under K. Edward the Confessor before the Conquest An. 1052. recited at large in M. Seldens Titles of Honour Part 2. c. 5. p. 634 635. in the Tryall of Roger Earle of Hereford in the 8. yeare of William the Conqueror who was sued and found guilty of Treason by his Peers Cooke 2. Institut p. 50. by the Judgement given in the Parliament of Northampton against Becket Arch-bishop of Canterbury which you may read at large in Stephanides * M. Selden by the answer of Will. du Breose to K. Johns Ministers Paratus sum ero Domino meo sine obsedibus satisfacere secundum Judicium Curiae suae BARONVM Parium meorum Which right of theirs is asserted by Sir E. Cook himself and proved at large in his 2 Institutes on Magna Charta c. 14. 29. in his 3 Institutes c. 2. where p. 31. he writes thus A Peer of the Parl being indicted of Treason or Felony or of misprision and duly transmitted to the Lords may be arraigned thereof in the upper House of Parl. As FREQUENTLY IN PARL †Titles of Honouâ— Part 2. c. 5. p. 705. 706 707. ROLLS IT DOTH APPEAR As Rot. Parl. 21 R. 2 Plac. Cor. nu 2 to 7. the Earl of Arundels case Rot. Parl. 5 H. 4. nu 11 12. 13. H. 6. nu 49. Earl of Dovers case 28 H. 6. nu 19. 50 51 52. Duke of Suffolks case To which might be added 7 R. 2. nu 22 c. The Bishop of Norwich case for delivering Gravelin to the Enemy Placita Corona in Parl. 21 R. 2. num 1 to 26. Rot. Parl. 50 E. 3. nu 27. The Lord Latymers case 2 H. 6. Rot. Parl. nu 18. The Impeachments of the Commons this Parliament against the E. of Strafford and Arch-bishop of Canterbury who were prosecuted by the Commons not tryed only by and before the Lords as their proper Judges and Peers See 4 E. 3. nu 14. 15 E. 3. nu 6. 8. 44 45. 51. 17
the said Earle ought to make fine and ransome at the will of the King Whereupon the said Earle most humbly thanked our Lord the King and the sayd Lords his Peers of Parliament FOR THEIR RIGHTFULL JUDGEMENT and the Commoners for their good affectious and diligence used and shewen in this behalfe And the said Earle further prayed the King that in assurance of these matters to remove all jealousies and evill suspitions that he might be sworn a new in the presence of the King the Lords and Commons in Parliament and the said Earle tooke an Oath upon the Crosier of the Archbishop of Canterbury to be a faithfull and loyall lige to our Lord the King the Prince his sonne and to the heires of his body inheritable to the Crown according to the Lawes of England Whereupon the King out of his grace pardoned him his fine and rausome for the trespas aforesaid After which num 17. the Lords spirituall and temporall humbly thanked the King sitting in his royall Throne in the white Chamber for his grace and pardon to the said Earle of his fine and ransome and likewise the Commons thanked THE LORDS SPIRITUALL and TEMPORALL FOR THE GOOD and JUST JUDGEMENT THEY HAD GIVEN AS PEERS OF PARLIAMENT TO THE SAID EARLE From this memorable record I shall observe First that though this Declaration of this Earles case was made by his Petition in the presence of the King Lords and Commons in Parliament according to the Statnte of 25. E. 3. yet the Lords only by Protestation in presence of the King and Commons claimed to be THE SOLE JUDGES OF IT as Peers of Parliament and belonging to them OF RIGHT Sâ—condly That this claime 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 Trespas only c. Thirdly That the Earle thanked the King only for his grace the Lords FOR THEIR JUST JUDGEMENT 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 speciall thanks to the Lords spirituall and temporall on Parliament for their good and just judgement Fourthly That this judgement of the Lords only was finall and conclusive both to the King and Commons who aquiesced in it All that can be objected to evade this President Object is that this Judgement was given in case of a Peer wherein the Lords only are the Judges by Magna Charta c. 29. but not of a Commoner which is the question I answer Answ that though this judgement of theirs was in case only of an Earle who was a Peer triable * See Cooke 2. Inslit on Maâ—na Charta c. 29. only by his Peers yet the King Lords in this Parliament the very same day gave Judgement of High Treason against Henry and Thomw Peircy one of them no Peer and OTHERS who were in their companie who were but Commoners and no Peers for levying warre against the King and that without the Commons as is evident by the Parliament Roll of 5. H. 4. nu 15. Et anxy mesme le vendreay AIVGGES PAR LE ROY ET SEIGNEIURS EN PARLEMENT que levier de guerre fait per les ditz Mounsieur Henry Mounsieur Thomas furont tenuz pur treason ceo si bien de eux mesmes come DE AUTERS qui fueront en lour compaigne au temps de dit lever which quite takes off this Objection Seâ— Mr. Prynnes Doome of Cowardice and Treacherie p. 2. 3. 4. 5. c. where these records are cited at large verbatim To put all out of question I shall instance in some few ancient prefidents more which are full and punctuall In the Parliament of 1. R. 2. num 38. 39. 40. The Commons prayed that all those Captaines who had rendred or lost Castles or Townes 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 evill examples they had given to other Governours of Townes 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 behalfe 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 severall Articles and answers to them in writing being read before THE LORDS Which done the Constable was commanded to bring them againe 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 Outherwycke to the Kings enemies without any duresse or want of victuals contrary to his alleagiance and undertaking safely to keep it and therefore THE LORDS ABOVE NAMED SITTING IN FUL PARLIAMENT ADJVDGE you TO DEATH THAT you SHAL BE DRAWN and HANGED But because our Lord the King is not informed of the manner of the Judgement the exâ—cution of it shall be respited till the King be thereof inâ—ormed Aâ—ter which Judgemeâ—t given it was shewed to the said John Lord of Gomynes by the 〈◊〉 Steward how the said LORDS had assembled and considered of his answer and THAT â—â—â—â—â—EEMED TO THE LORD sitting in full Parliament that without duresse or default of victualls or other necessaries for the defence of the Town or Castle of Arde and without the Kings command hee had evilly delivered and â—urrendred them to the Kings Enemies by his own default against all apparance of right or reason against his undertaking safely to keep the same Wherefore THE LORDS aforesaid here in full Parliament ADJUDE YOU TO DEATH And because you are a Gentleman and a Baronet and have served the Kings Grandfather in his Warrs and are no Leigeâ—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 untill our Lord the King be informed thereof Loe here two expresse Judgements given in Parliament by the Lords alone without King or Commons in case of Treason even against Commoners themselves And an expresse acknowledgement of the Commons of the Lords
Commons An attendent on Sir Tho. Brooke chosen one of the Knights to serve in Parliament for the County of Somerset being grievously beaten by one Iohn Savage was upon a petition of the Commons relieved against this breach of Priviledge by * Ordinance or Act of Parliament 8. H. 4. 23. 14. made by consent of the King and Lords which is printed in 5. H. 4. c. 6. And in like maner Richard Strode Burgesse of Plimton was relieved against breaches of his priviledges as a Parliament man by a speciall act of Parliament assented unto by the King and Lords upon the Commons petition An. 4. H. 8. c. 6. the Commons alone being then unable to relieve them or punish these breaches by their owne authority as of late they presume to doe without King or Lords Quo Jure having not the power of Judicature vested in them I am yet to learne being contrary to the practice and presidents of all ancient Parliaments before our present age and the Statute of 11. H. 6. c. 11. provided for this very purpose which presents another remedy out of Parliament and not in only the Commons house In the Parliament of 16. R. 2. n. 6. The Wednesday after the Parliament began Sir Philip Courtenay returned by the Sheriffe of Devon for one of the Knights for that County came before the King in full Parliament and sayd that he understood how certaine people had accused and slandered him to the King and Lords as well by Bill as by mouth of heinous matters and therefore prayed TO BE DISCHARGED OF THE SAID IMPLOYMENT untill the said accusations and complaints were tried and found true or not true and because his said prayer seemed honest TO THE KING and THE LORDS THE KING GRANTED HIM HIS REQUEST and DISCHARGED HIM IN FULL PARLIAMENT AND the Monday following at the instance and prayer of the COMMONS the KING GRANTED THAT HE SHOULD BE RESTORED and REMITTED TO HIS PLACE according to the returne of the said Sheriffe for to counsell and doe that which belonged unto his office and after because he had been good and treatable with those who had complained upon him and condescended to a good treaty he was restored in full Parliament to his good same The charge against him is expressed in the same Parliament rol num 13. 14. where two Petitions preferred against him to THE KING and LORDS IN PARLIAMENT for putting Thomas Peutyngdon forcibly out of possession of the Manor of Bygelogâ— without just cause Richard Somestre out of other lands detaining them from them he being so powerfull in the County that no poore man durst to sue him Which Petitions were referred by consent in Parliament to certaine Arbitrators to determine From which record it is evident First that Members of the Commons house may be complained and petitioned against for misdeameanours 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 lesse then can they expell or eject any of their members by their owne authority without the Kings and Lords concurrence and consents Thirdly that the power of restoring and readmitting a suspended Member of the Commons house belongs not to the Commons themselves but to the King and Lords to whom the Commons themselves in this case addressed themselves by petitinn for Courtneys readmission unto his office after his submission of the complaints against him to the arbitriment of those Members to whom the King and Lords referred the same In the Parliament of 17. R. 2. n. 23. It was accorded by the King and Lords at the request of the Commons that Roger Swinerton who was endited of the death of one of their companions John 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 untill 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 order at their request In the Parliament of 35. Eliz. when Sir Edward Cook was Speaker of the Commons House there fell out some questions in the Commons House about the Amendment of a mistake in the return of the Burgesse of Southwark * 5. R. 2. c. 4 8. H. 4. c. 14. 11. H. 4. c. 16. H. 6 c. 4. 8. H. 6. c. 7. 32. H. 6. c. 15 Ploud tol 11. 8 c. and after long debate it was resolved that the House could not amend it but the Lord Keeper in Chancery where the return was of Record if he thought it amendable by Law and that Masten Speaker should wait upon the Lord Keeper about it which he did who advised with the Iudges concerning it as appeares by the Journall And the Statutes made for redresse of abuse of Elections of Knights and Burgesses were made by the King and Lords upon the Commons petitions as appeares by 8. H. 4. n 83 1 9. 11. H. 4. n. 54. Neither of all which statutes gives the House of Commons alone any power of Iudicature to judge the right of Elections or punish abuses committed in them but leaves them to the Lords judicature as at first and gives the party injured an action at Law against the Sheriffe and â—others for false returns Secondly Sir Edmund Cooks words extend only matters of misdemeanor of any Members of the House of Commons committed in or against the House it self of which theâ— now though not anciently are the sole judges without the Lords which he proves by Arthur Halls case Thirdly to breaches of Priviledges of the Commons House alone in striking or arresting any of the Members or their priviledged servants which he proves by Munctons case and 11. H. 6. c. 11. 5. H. 4. c. 6. the two latter proving the contrary Yet in this case of breach of priviledge even in arresting the Commons Members and servants the Commons house were noâ— anciently the sole Judges as now In the Parliament of H. 6. n. 25. 26. 27. 28. Thomas Thorp chief Baron was chosen Speaker of the Parliament and after his election and before the Parliament which was proroged he was arrested and taken in execution at the suit of the Duke of York whereupon some of the Commons were sent up by the House to the King and Lords spirituall and temporall sitting in Parliament desiring that they might enjoy all their ancient and accustomed Priviledges in being free from arrests and propounded the case of Thomas Thorp