be both Judge and Party it behoveth of Right that the King should have COMPANIONS for to hear and determine IN PARLIAMENTS all Writs and Plaints of the Wrongs of the King of the Queen and of their Children and of those especially who otherwise could not have common right concerning their wrongs These Companions are now called Counts after the Latine word Comites For the good Estate of the Realm King Alfred assembled the COUNTS or Earls and ordained by a Perpetual Law that twice a year or oftner they should assemble at London in Parliament to consult of the Government of the people of God c. By which Estate or Parliament many Laws and Ordinances were made which be there recites Bracton l. 1. c. 8. l. 2. c. 16. l. 3. c. 9. in Henry the 3d. his reign and Fleta l. 2. c. 2. p. 66. write thus in Edw. the first his reign in the same words Habet enim Rex cuâ—iaÌ„ suam in concilio suo in Parliamentis suis PRAESENTIBUS Praelatis COMITIBUS BARONIBUS PROCERIBUS aliis viris peritis ubi terminatae sunt dubitationes judiciorum novis injuriis emersis nova constituuntur remedia And l. 17. c. 17. he writes thus Rex in populo regendo superiores habet Videlicet Legem per quam est Rex Curiam suam to wit of Parliament videlicet COMITES BARONES Comites enim à Comitia dicuntur qui cum viderint Regem sine froeno Froenum sibi apponere TENENTVR ne clament subditi Domine Jesu Christe in Chamo froeno maxillas eorum constringe Sir Tho. Smith in his Commonwealth of England l. 2. c. 1. John Vowel and Ralph Holinshed vol. 1. c. 6. p. 173. Mr. Cambden in his Britannia p. 177. John Minshaw in his Dictionary Cowel in his Interpreter Title Parliament Powel in his Attorneys Accademy and others unanimously conclude That the Parliament consisteth of the KING the LORDS SPiRITUAL and TEMPORAL 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 Realm And that no Parliament is or can be holden without the King and Lords Mr. Crompton in his Jurisdiction of Courts affirms particularly of the High Court of Parliament f. 1. c. This Court is the highest Court of England in which the King himself sits 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 Spiritual as temporal and are severally summoned by the Kings writ at a certain day and place assigned The Chancellor 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 unles good cause be shewed or in case they depart without the Houses or Kings special 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 bind the subject without all their concurrent assents Sir Edward Cook not only in his Epistle before his ninth Report and Institutes on Littleton p. 109 110. But likewise in his 4. Institutes published by Order of the Commons themselves this present Parliament c. 1. p. 1 2. c. writes thus of the high and Honourable Court of Parliament This Court consisteth OF THE KINGS MAJESTIE sitting there as in his royal politick capacity and of the three Estates of the Realm viz. Of the Lords Spiritual Archbishops and Bishops being in number 24. who sit there in respect of their Counties or Baronies parcel of their Bishopricks which they hold also in their politick capacity and every one of these when the Parliament is to be holden ought ex debito Justitiae to have a writ of summons The LORDS TEMPORAL Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their dignities which they hold by descent 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 Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Boroughs All which are respectively elected by the Shires or Counties Cities and Boroughs 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 Realm and trusted for them and are in number at this time 403. He adds And it is observed that when there is best appearance there is the best successe in Parliament At the Parliament holden in the 7. year of H. 5. holden before the Duke of Bedford Guardian of England of the Lords Spiritual and Temporal 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 E. 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 body of the kingdom and doe sit in two Houses and of this Court of Parliament the King is Caput Principium Finis The Parl. cannot begin but by the Royal presence of the King either in person or representation by a Gardian of England or Commissioners both of them appointed under the great Seal 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 behalf of the King That they could not assent to any thing in Parliament that tended to the disinherison of the King and his Crown whereunto they were sworn And p. 35. he hath this special observation That it is observed by antient Parliament men out of Records that Parliaments have not succeeded well in five cases First when the King hath been in difference with his Lords with his Commons Secondly When any of the great Lords were at variance between themselves Thirdly When there was no good correspondence between the Lords and Commons Fourthly When there was no unity between the Commons themselves in all which our present Parliament is now most unhappy and so like to miscarry and succeed very ill Fifthly When there was no preparation for the Parliament before it began every of which he manifests by particular instances From all these and sundry other Authorities it is most evident and transparent That both the King himself and Lords ought of
and chief men in the Parliament together with the evident testimonie of the twelve Peers c. The reason is Because there was wont to be a cry or murmur in the Parliament for the Kings absence because his absence is hurtfull and dangerous to the whole Commonalty of the Parliament and Kingdom Neither indeed ought or may he be absent but only in the case aforesaid After which it follows The Archbishops Bishops and other chief of the Clergy ought to be summoned to come to the Parliament and also EVERY EARL 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 midst of the great bench and is bound to be present in the first and last day of Parliament And the Chancellort Treasurer and Barons of the Exchequer 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 afterwards the BARONS of England after them the EARLS Whereupon if the Barons of the Cinqueports be not come the Baronie from whence they are shall be amerced at an hundred marks and an Earl at one hundred pounds After the same manner it must be done to those who are Peers to Earls and Barons After which it relates the manner of placing the Earls Baron and Peers in Parliament Then adds The Parliament may be held and OUGHT every day to begin at one of the clock in the afternoon at which time the King is to be present at the Parliament and all the Péers of the Kingdome None of all the Peers of the Parliament may or ought to depart alone from the Parliament unless he have obtained and that in full Parliament leave from the King and all his Péers so to doe and that withall there be a remembrance kept in the Parliament roll of such Leave and Libertie granted And if any of the Peers during the term of the Parliament shall be sick or weak 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 find him sick then he may make a Proxie Of the Parliament the King is the Head the beginning and ending So this Treatise The Statute of 5 R. 2. Parl. 2. ch 4. enacts by Command of the King and Assent of the Prelates Lords and Eommons 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 accustomed within the Realm of England of old time And every person of the said Realm which from henceforth shall have the said Summons be he Archbishop Bishop Abbot Prior Duke Lord Baron Baronet Knight of the Shire Citizen of City Burgess of Burgh or other singular person or Commonalty do absent himself or come not at the said Summons except he may reasonably or honestly excuse himself to our Soveraign Lord the King he shall be amerced and otherwayes punished according as of old time hath béen used to be done within the said Realm in the said case Which relates unto and agrees expresly with that forecited out of Modus tenendi Parliamentum which took it out of this Act. If then all the Lords Peers in Parliament are bound to attend in Parliament being oft times there all called for by name and ought not to depart from it without the Kings and Houses leave under pain of Amercement and other punishment as this Statute resolves and 3 Ed. 3.19 Fitzh Coron 161. Stamford l. 3. c. 1. f. 153. Cook 4 Instit p. 15 16 17.43 28 E. 3. Nu. 1 2. 5 R. 2. n. 2. 8 H. 4. n. 55. and 31 H. 6. n. 45. Where fines were imposed on absent Lords most fully mamanifest then questionless they ought of right to sit in Parliament else it were the height of Injustice thus to fine them In the tenth year of King R. 2. this King absented himself from his Parliament then sitting at Westminster residing at Eltham about forty daies and refusing to come to the Parliament and yet demanding from them four Fifteens for maintenance of his Estate and outward Warres Whereupon the whole body of the Parliament made this answer That unless the King were present they would make therein no allowance Soon after they sent the Duke of Glocester and Bishop of Ely Commissioners to the King to Eltham who declared to him among other things in the Lords and Commons behalf how that by an old Ordinance they have an Act if the King absent himself 40 dayes not being sick but of his own mind not heeding the charge of his people nor their great pains and will not resort to the Parliament they may then lawfully return to their Houses And now sir said they you have been absent a longer time and yet refuse to come amongst us which is greatly to our discontent To which the King answered Well we do consider that our own people and Commons go about to rise against us wherefore we think we can do no better than to ask aid of our Cosen the French King and rather to submit us to him than unto our own 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 aâ—d the Kings wilfull absence Ranulf de Glanvil the first writer of our Common Laws in his Prologue to his book De legibus consuetuainibus Regni Angliae used in the reign of King H. the 2. under whom he flourished and his Predecessors writes thus of the Parliamentary Councils in that age and their Members power to enact Laws Leges Anglicanas licet non scriptas leges appellari non videtur absurdum cum hoc ipsum Lex sit quod Principi placet et legis habet vigorem eas scilicet quas super dubiis in Consilio desiniendis Procerum quidem Concilio et principis accidente authoritate constat esse promulgatas And lib. 13. cap. 32. f. 110. Cum quis itaque infra assisam Dom. Reg. id est infra tempus A Dom. Rege de consilio Procerum adhoc constitutum quod quandoque majus quandoque minus censetur So as the Parliaments under this King and his Ancestors consisted only of the King and Nobles who then made and enacted Laws by the Kings royal assent without any Knights Citizens or Burgesses elected by the people of which I find no mention in the Parliamentary Councils under
indignatione Postea vero ne oblivio tenorem responsionis Baronum deleret in scriptum taliter haec redacta Cum dominus Eboracensis Archiepiscopus et omnes Episcopi Angliae Abbates Priores per se vel per Procuratores suos necnon OMNES COMITES fere OMNES BARONES ANGLIAE ad mandatum domini Regis convenissent apud Westmonasterium die Martis proxima ante Purificationem beatae Mariae Anno Dom. 1242. Regni Henrici 3. Regis 26. audituri Domini Regis voluntatem et negocium pro quo ipsos mandaverat Et idem Dominus Rex transmittens ad eosdem dictum dominum Eboracensem et nobilem virum dominum Comitem Richarduum et dominum W. de Eboraco Praepositum de Beverlaco super voluntate Domini regis in negociis suis scilicet eisdem expositis per eosdem solennes nuncios omnes Magnates de regno suo rogasset de consilio ei dando et auxilio faciendo ad haereditatem suam jura sua perquirenda in partibus transmirinis quae spectabant ad Regnum suum Angliae tandem dicti Episcopi Abbates Priores Comites Barones magno inter eos tractatu praehabito inprimis Domino Regi per praedictos Magnates dederunt consilium videlicet Quod Dominus ipse Rex expectaret finem Treugarum inter eum et Regem Franciae initarum Et si forte idem Rex Franciae contra formam earundem treugarum aliquas fecisset interprisas tunc dictus Rex Angliae mitteret ad eum solennes nuncios ad rogandum monendum et inducendum ipsum Regem Franciae ut treugas initas teneret et interprisas emendaret si quae per ipsum vel per suos factae essent Quod si Rex Franciae facere contradiceret libenter ad hoc consilium apponerent pro posse suo de auxiliis ei dando Omnes ita unanimiter responderunt Similiter postquam fuerat Dominus eorum multoâ—ies ad instantiam suam ei auxilium dederunt Videlicet tertiam decimam mobilium suorum et postea quintam decimam et sextam decimam et quadragesimam Carucagium Hydagium et plura Scutagia et postea unum magnum Scutagium ad sororem suam Imperatricem maritandam Postea vero nondum quatuor annis elapsis petit ab eis iterum auxilium et tandem cum magna precum instantia obtinuit tricessimam quam ei concesserunt tali scilicet conditione quodilla exactio vel aliae precedentes amplius non traherentur in consequentiam Et inde fecit eis Chartam suam Et praeterea concessiâ— eis tun Quod omnes Libertates contentae in Magna Charta ex tunc in antea plenius tenerentur per totum regnum suum inde fecit eis quandam parvam Chartam suam quam adhunc habent in qua eaedem continentur Praeterea Dominus Rex concessit eis de voluntate sua et de consilio torius Barnagii sui quod tota pâ—cunia ex dicta tricesima proveniens salva deponeretur in Castris Domini Regis sub Custodia quatuor Magnatum Angliae scilicet Comitis Warranniae et aliorum per quorum visum et consilium pecunia illa expenderetur ad dicti Regis Regni utilitatem cum necesse esset Et quia Barnagium nescit nec audâ— it quod de dicta pecunia per visum vel consilium alicujus quatuor Magnatum praedictorum aliquid expendatur credunt firmiter bene intelligunt quod Dominus Rex adhuc totam habet illam pecuniam integram de qua nunc potest magnum habere auxilium Praeteria bene sciunt quod post tempus illud tot habuit escaetas scilicet Archiepiscopatum Cantuariensem plures Episcopatus Angliae ditiores terras Comitum Baronum militium de eo tenentium defunctorum quod solummodo de illis escaetis debet ipse habere grandem pecuniae summam si bene custodiatur Praeterea a tempore dictae tricessimae datae non cessaverant Justitiarii itinerantes itinerare per omnes partes Angliae tam de placitis forestae quam de omnibus aliis placitis ita quod omnes Comitatus Angliae omnia Hundreda Civitates Burgi fere omnes villae graviter amerciantur Unde solummodo de illo itinere habet Dominus Rex vel habere debuit maximam summam pecuniae si persolvatur bene colligatur Unde bene dicunt quod per illa amerciamenta per alia auxilia prius data omnes de Regno ita gravanâ—ur depauperantur quod parum aut nihil habent in bonis and may not we now more truly say so after so many years uncessant importable Taxes Excizes Impositions Contributions Exactions of all kinds without any interruption in far greater proportions than these amount to and all sequestrations sales of Delinquents and others estates not known in that age Et quia Dominus Rex nunquam post tricessimam datam nor our present Rulers after all their Protestations Declarations Remonstrances Votes Leagues and Covenants to preserve our Laws Liberties Properties Great Charters and the Petition of Right and all our contributions Excises Loans or publike faith c. Cartam suam de libertatibus tenuit imo plus solito postea gravavit as now per aliam Cartam eis concerâ—am quod Exactiones hujusmodi non traherentur in consequentiam responderunt eidem Domino Regi praecise Quod nullum ad praesens ei facerent auxilium A fit answer for all our Nobles and Commons in this age after so many years Taxes Imposts Excises far heavier than any complained of in that age Veruntamen quia Dominus eorum est sic se gerere poterit erga eos usque ad finem dictarum treugarum quod tunc bonum apponent consilium pro posse suo Et cum dicti Magnates Nuncii ipso Domino Regi nunciassent Responsum redeuntes ad Barnagium dixerunt quod in parte sufficiens Domino Regi dederunt responsum I have transcribed these memorable passages of this Parliament out of Matthew Paris thus largely in his own words for sundry reasons pertinent to my Theam 1. To prove that the Archbishops Bishops Abbots Peers Earls Barons Lords were the only Members of this all the former and most other succeeding Parliaments in Henry the 3 his reign this Historian who is most exact making mention of them only both in the summons to their debates in Parliament and this their Remonstrance in Parliament even in this case of ayds demanded and not of any Knights Citizens or Burgesses elected by the people of which there is not one syllable 2. To manifest that the Earls Lords and Barons of the Realm have most unanimously resolutely magnanimously opposed our Kings in Parliaments in their unjust designs and in Ayds Taxes demanded and earnestly begged importuned from them without any effect resisting our Kings therin to their faces and withstanding all their wiles pollicies King-crafts and private sollicitations perswasions
unless a Peer by birth or creation those who are called to it only by general or special Writs not being formerly for life or inheritance Peers Nobles or holding by Barony of the King being only Assistants to the Lords as the Judges and others usually are not Members having votes It is the opinion of Sir Edward Cook in his Institutes on Littleton That if the King call any Layman to the Vpper house of Parliament generally by his Writ which he there recites that this alone doth create him a Baron and Lord of Parliament in fee simple without the word heirs and ennoble both himself and his heirs after him so as to make them hereditary Barons And this is the received opinion of most Grandees of the Law relying only upon his bare Ipse dixit though sometimes mistaken in his Judgement and frequently in his Records and Presidents whereon hee grounds his Opinion although he cites no president nor record at all to make good his Assertion in this case But under the favour of this Great Oracle of Law I conceive this Opinion of his to be no Law at all but a meer mistake for these ensuing reasons 1. Because there is not one word or syllable in this general Writ of Summons that gives him either the Name Title Honor or Dignity of a Lord or Baron of the Realm Therefore it cannot in Law or reason create him such a one If he were a Knight an Esquire a Master or Gentleman or Judge when the Writ was directed to him it gives him only that Title and summons him only by it without stiling him a Lord Baron Earl Viscount or Peer of the Realm at all Therefore it cannot ennoble nor create him one much less ennoble his posterity and give him an hereditary Barony without the word heirs since the Writ is only personal directed to himself alone 2. Because the Kings end and intention in summoning him to Parliament by this Writ is not to ennoble and create him a Lord Peer or Baron much less to ennoble his Posterity after him but only to consult and treat with him and the Prelates Lords and Nobles of the Realm concerning the affairs there propounded As this clause of the Writ demonstrates which only must ennoble him and his heirs if any to come to the Parliament at such a day and place that so the King may VOBISCUM with him not his heirs cum Praelatis Magnatibus Proceribus dicti regni nostri colloquâ—um habere tractatum Which word VOBISCVM being distinguished from cum Praelatis Magnatibus Proceribus Regni can not possibly create him a Lord or Baron no more than a Prelate of the Realm the rather because the word Baro is not in the Writ Neither can the following clause create him one Viz. dictis die loco personaliter intersitis Nobiscum cum Praelatis Magnatibus Baronibus supradictis super dictis Negotiis tractaturis vestrumque Consilium impensuris because it neither gives him the name nor stile of a Lord or Nobleman much less of a Baron no more than of a Prelate and summons him not to be a Lord Earl Prelate or Baron of the Realm but to be personally present with them which he may be though a private person and no Lord and to treat and give his advice with them concerning the businesses there propounded the only end for which he is summoned not to be their fellow Peer Lord or Baron So that it is against all sence and reason to aver that such a general Writ as this can create himself much less his Posterity Lords or Barons of the Realm in perpetuity It is a rule in Law and oft resolved That the Kings grant shall not inure to two intents nor pass or give two things at once especially when one of them only is expressed the other not Therefore this writ of the King shall not-doe it to create the party summoned a Baron meerly by implication which is not expressed and to summon him to conferr treat and give his advice in Parliament which is the only thing intended and clearly expressed 3ly The Writ summons him only to that particular Parliament then to be held at one certain day and place not to any other much less to all future Parliaments to be held Therefore it cannot create him and his heirs hereditary Barons and Members of the Lords House no more than the Writ for electing Knights Citizens and Burgesses for that particular Parliament makes them and their posterity Knights Citizens and Burgesses of Parliament for perpetuity It being both contrary to the words and intention of the Writ to make him much less his heirs Members of all succeeding Parliaments to which they must still be summoned by New Writs 4ly No Lord or Baron is or can be legally created but of some particular place Town City or the like whereof he is stiled Earl Lord or Baron But the general writ of summons gives him no such particular stile or title of dignity confined to such a certain place Therefore it cannot create him either a Lord or Baron or if it doth it must be sine titulo which were absurd 5ly No Duke Earl when created Viscount Lord or Baron is or can be created a Peer of the Realm by the Kings Letters Patents for life in tayl or see simple without expresse words in the Patent creating him such a one for life or him and the heirs males of his body or his heirs in general Dukes Marquesses Viscounts Earls Lords or Barons of such a particular place as all their Patents whereof you have sundry Presidents in Mr. Seldens Titles of honour lib. 2. ch 5. throughout and our books of Heraldry plentifully manifest And in all late Patents of creation since 20 H. 8. of any Dukes Marquesses Earls Viscounts or Barons there is a special clause inserted enabling them and their heirs males and every of them to have hold and possess a seat and place in the Parliam of us our heirs and Successors within the Realm of England among other Dukes Marquesses Earls Viscounts Lords and Barons of the Realm as a Duke Marquesse Earl Viscount Lord or Baron as Mr. Selden and their Patents inform us and I have formerly touched p. 49. If then the king by his Letters Patents cannot create men Nobles and Peers of Parliament for life in tail or see simple without these special and particular clauses then by the self same reason he cannot create them such by his writ unlesse it hath such special words and clauses in it and not by the general writ of summons forementioned wherein there is not one clause or syllable tending to such a particular personal or hereditary creation The rather because Sir Edward Cook himself confesseth that the Creation by Letters Patents is the surer though by writ be the antienter way for he and his posterity may sufficiently be created and made Noble by Letters Patents though he to whom they
the most best Antiquaries and English Historians I have seen who Treat of our Parliaments except that Gross Impostor who composed that ridiculous Treatise stiled Modus tenendâ— Parliamentum when there was never any Parliament held in any age in England or Ireland in such manner as â—e there relates prescribes with Sir Edward Cook and some other injudicious Antiqâ—aries seduced by this pretended forged Antiquity have not presumed to derive the Antiquity of the Knights Citizens and Burgesses summons to and siâ—ting in our Parliaments higher than the Parliament held under Henry the 1. at Salisbury Anno Dom. 1116. the 16 year of his reign To which Polydor Virgil Hist Angl. An. 1116. Judge Dodridge and others in the Antiquity of the Parliamenâ—s of England p. 18 19 20 40 80 86 87. Holinshed in his Chronicle vol. 3. p. 38 39. John Speed in his History of Great Britain p. 438 439. referre their Original if not the beginning of Parliaments themselves But under these learned mens correction who produce no warrant from histories or records in that age for proof of what they affirme I dare confidently assert that there is nothing to be found in History or Record to warrant this their fancy but many direct evidences against it which I shall briefly clear being very pertinent to the present controversie and judicature of the Lords House 1. It is most clear that to this Parliamentary Council held at Salisbury Anno 16 H. 1. No Commons Knights Citizens elected by the people were called by this Kings Writs as some of these Authors with the Manuscript of Canterbury positively assert and others of them seem to incline unto but only the Lords spiritual and temporal of the Realm as Holinshed himself relates whom Speed stileth the Estates both Spiritual and Temporal This is evident by Eadmerus who then lived and thus records the proceedings of that convention under this King 13 Kal. Aprilis factus est Conventus Episcoporum Abbatum et Principum totius regni apud Serberiam cogente eos illuc sanctione Regis â—enrici Which Rog. de Hoved. thus seconds Comites et Barones totius Angliae apud Salisberiam convenerunt who as Mat. Paris and Mat. Westminster with them relate Jurarunt fidelitatem Willielmo filio suo Simeon Dunelmensis â—â—iles it Conventus Optimatum et Baronum totius Angliae wherein jussu Regis omnes Comites et Barones cum Clero totius Regni swore fealty to him and his Son as the Chronicle of Brompton also relates not any of our antient Historians making mention of any Commons Knights Burgesses but only of Bishops Abbots Earls Lords and Barons of the Realm there present at it In this Parliament after the Earls Barons and Great men had done homage to William the Kings Son and sworn allegiance to him the Cause and complaint between Ralph Archbishop of Canterbury and Thurstan elected Archbishop of York was there heard and debated which had been agitated between them a whole year before Thurstan being admonished by Ralph to make his subjection to the See of Canterbury and to receive his consecration from him after the ecclesiastical and usual manner Answered That he would willingly receive his consecration from him but he would by no means make that profession of subjection to the See of Canterbury which he exacted but only that which Pope Gregory and after him Pope Honorius the 6. had ordained who made this agreement between the two Archbishops of England Ut neuter alteri subjectionis professionem faceret nisi tantum ut qui prior ordinatus esset quamdiu viveret prior haberetur quod proprium est servorum Dei ut verahumilitate sibi invicem acclives sint nullus super alium primatus ambitionem exercere debet Sicut Dominus noster Verae humilitatis praedicator amator discipulos suos de hac re litigantes redarguens dixit eis Qui major est vestrum erit omnium minister Nullus siquidem post beatum Auguâ—â—inum â— qui non tam Archiepiscopus quam Apostolus Anglorum dicendus est Archiepiscoporum Cantuariensium primatum totius Angliae sibi vendicare praesumpsit usque ad Theodorum Archipraesulem cui propter singularem in Ecclesiastica Disciplina solertiam omnes Angliae Episcopi subjici consenserunt sicut Beda in Ecclesiastica Historia Angliae testatur Quamobrem Turstinus nullam aliam subjectionis professionem Cantuariensi Pontifici facere voluit nisi quam beatus Papa Gregorius instituiâ— Ralph on the other side pleaded the subjection of his predecessors made to his Predecessors Rex autem Henricus ubi advâ—rtit Turstinum in sua stare pervicatia aperte protestatus est illum aut morem antecessorum suorum tam in professione facienda quam in aliis dignitatis Ecclesiae Cantuariensis ex antiquo jure competentibus executurum aut Episcopatu Eboracensi cum benedictione funditus cariturum His auditis ille suo cordis consilio inpraemeditatus credens renunciavit Pontificatui spondens Regi Archiepiscopo se dum viveret illum non reclamaturum nec aliquam calumniam inde moturum qui cunque substitutus fuisset But Thurstan afterwards repenting of his rashness contrary to his agreement in Parliament going to the Pope against the Kings command to the Council at Rhemes was there consecrated Archbishop of York by Pope Calixtus himself contrary to his promise to the Kings agent and Canterburies who there publikely protested against his consecration without making any subjection to the See of Canterbury Whereupon the King prohibited Thurstan to return into England or any of his Dominions swearing that he should never return whiles he lived unless he would make his subjection to the See of Canterbury Which Oath he refused to violate at the Popes personal request to him though he then absolved him voluntarily from this Oath saying Quod dicit se quoniam Apostolicus est me à fide quam pollicitus sum absoluturum Si contra eandem fidem Thurstinum Eboraci recepero non videtur regiae honestati convenire hujusmodi absolutioni consentire Quis enim fidem suam cuivis polâ—câ—ntii amplius crederetur cum eam meo exemplo tam facile absolutione annihilari posse videret As in this famous Parliamentary Council of Salisbury so in all precedent and subsequent Great Councils and Conventions during the whole reign of king H. 1. the Prelates Earls Barons spiritual and temporal Lords were only summoned as Members not any Knights Citizens Burgesses or Commons elected by the people which I shall next make good In a Parliamentary Council in the 1. year of his reign Anno 1100. he was elected and crowned King of England abolished ill Laws confirmed King Edwards Laws and the Great Charter of Liberties under his Seal Communi Concilio Baronum regni Archiepiscoâ—is Episcopis Comitiâ—uâ— Proceribus Magnatibus et Optimatibus totius Regni Angliae there subscribing to his Charter then granted as witnesses See here p. 58
deceasing the King keeping his Court aâ— London at Pentecost Rex Regni Proceres atque Praesules ad incundum de Eboracensi Archiep consecratione Concilium Londinum convocavit Wherein caepit agere cum Episcopis et Regni Principibus quid esset agendum de consecratione electi Eccleâ—iae Eboracensi Where Anselms recited Letter being produced and read the Earl of Mellent demanded Which of the Bishops durst to receive that Letter without the assent and command of the King their Soveraign Lord Whereupon the Bishops perceiving that the Earl by this question was willing calumniam movere qua eos regiae Majestati obnoxios faceret remoti à multitudine habito consilio staruunt apud se suis omnibus si regia sententia hoc forte Comitis instinctu dictaret se malie dispoliari quam iis quae Anselmus de praesenti quaerela praeceperat non obtemperare Istis ergo firmato Consilio inter se they sent for Samson Bp. of Worcester to know his opinion thereinâ— who communing with them and telling them that himself was present when as his brother Thomas Archbishop of York Elect tum antiquis consuetudinibus tum invincibilibus allegationibus actus eandem pâ—ofessionem Lanfranco Archiepisco Cantuariensi cunctis suis successoribus fecit Thereupon simul omnes Episcopi ad Regem reversi sunt constanter literas quibus Comes sciscitatus fuerat se suscepisse contra eas nulla ratione quicquam acturos asserentes Ad quae cum idem Comes caput agitareâ— autumans jam in illos quasi de contemptu Regis crimen injiciendum dixit Rex Quicquid in iis aliorum sententia ferat de me constat quia cum Episcopis sentio nec vel ad horam excommunicationem Anselmi subjacere aliquatenus volo Quibus aâ—ditis gavisi sunt omnes Et agentes domino grates pariter conclama verunt Anselmum adesse et quam non poterat in corpore degens jâ—m mundo absâ—â—tem causam Ecclesiae suae determinaâ—e Deinde in laudibus eximii Principis demoratum est ac ut ipse dignitatem Primatus Ecclesiae Cantuariensis humiliari a nulâ—o permitteret postulatus siquidem in hoc dicunt consuetudines antiquae et earum confirmationes astipulatione totius regni sub magno Rege Willielmo factae necne privilegia quae his priota existunt ab Apostolica Sede ipsi Ecclesiae collata corrumperentur scinderentur annihilarentur Adquievit istis Rex jussit ipsarum quoque scripta Auctoritatum quae Ecclesia Canâ—uariensis habebat sub celeritate afferri allata recitari Quod ubi factum est intulit Quid amplius quaeritur Auctoritates privilegia Apostolicae Sedis quae in praesentia Patris Matris meae sub testimonio confirmatione Episcoporum Abbatum Procerum Regni definita sunt ut quasi de Epistola Anselmi penitus taceatur ego in quaestionem mitterem ego novis Ambagibus agitari permitterem Immo sciat Thomas se aut subjectionem obedientiam Ecclesiae Cantuariensi ejusque primatibus ut Antecessores sui professi sunt professurum aut Archiepiscopatui Eboracensi ex toto cessurum Fugat ergo quod vult Consideratis itaque Thomas auctoritatibus quibus Ecclesiam Dorobernensem niti circumvallari videbat spretis clericis suis quorum se Consilio credidisse sero dolebat se contra ipsas Auctoritates nolle stare sed morem Antecessorum suorum sequendo ipsis adquiescere Ecclesiam ipsam deinceps semper diligere velle dixit honorare Praecepit igitur Rex ut professio quam Thomas erat facturus in sui praesentia dictaretur scriberetur sigilloque suo nequid in ea quovis molimine antequam eam proficiendo Thomas legeret mutaretur servaretur inclusa Quod et factum est Dominica ergo die quae fuit IV. Kl. Julii convenâ—runt jubente Rege Richardus Londoniensis Willielmus Wintoniensis Radulphus Roffensis Herbertus Norwicensis Radulphus Cistrensis Radulphus Dunelmensis Herveus Pangornensis Episcopi in Ecclesia beati Pauli Londoniae pro consecratione Thomae Inter solitam ergo examinationem suo loco professionem de subjectione obedientia sanctae Ecclesiae Dorobernensi exhibenda Richardus Lundoniensis Episcopus qui Thomam erat sacraturus ab illo exegit Professio igitur sicut erat sigillata sibi coram omnibus oblata est factoque sigillo evoluta lecta ab eo est ita Ego Thomas Eboracensis Ecclesiae consecrandus Metropolitanus profiteor subjectionem Canonicam obedientiam sanctae Dorobernensi Ecclesiae ejusdem Ecclesiae Primati Canonice electo conseerato successoribus suis Canonice inthronizatis salva fidelitate Domini mei Regis Henrici Anglorum et salva obedientia ex parte mea tenenda quam Thomas Antecessor meus sanctae Romanae Ecclesiae ex parte sua professus est Intererat huic officio Prior Ecclesiae Dorobernensis Conradus nomine ex Monachis ejusdem loci quamplures qui pro hoc ipso quoniam res eos maxime respiciebat illo convenerant Lectam itaque professionem cum a Thoma sibi oblatam Richardus Antistes Londoniensis accipisset eam nominato Priori Fratribus tradidit dicens Hanc Fratres Domini mei in testimonium auctoritatis vestrae Elclesiae suscipite ipsam vobis factam in memoriam posteritatis servate Deinde a Radulpho Cicestrensi Episcopo dictum in populo est ipsam consecrationem ex recto et antiqua consuetudine debere fieri Cantuariae Et adjecit Verum quia ipsa Civitas defuncto Patre nostro Anselmo nunc quidem Pontifice caret vâ—sum Regi sacratisque ordinibus regni est atque Principibus â—am hic atque ab hujus sedis Episcopo prae aliis potissimum celebrandam eo intuitu ea ratione quod Episcopus Lundoniensis inter alios Episcopos est Decanus Ecclesiae Cantuariensis ideo speciali quadam dignitate caeteris anteponendus Ita ergo in Episcopatum Eboracensem Thomas consecâ—atus est suscipiens a Ministro quod susscipere detrectavit a Magistro Anno 1114. King Henry by the admonition of the Pope and prayers of the Monks of Canterbury and other and above all being moved by divine instinct Episcopos et Principes Angliae in unum apud Windeshoram fecit veniâ—e eorum consilium in constituendo Pontifice Cantuariensi volens habere The King first piâ—ched upon Faricius Abbot of Abendon who was there present for that end by the Kings command Animus tamen Episcoporum et quorundam Magnatum in aliud vergebat praeoptantium aut quemlibet Episcoporum de ordine Clericâ—li aut Clericum aliquem de Capella Regis in opus illud ascisci But when it was objected that there had been no Archbishop since Augustin but only one which was not of the Monastick order who for that presumption and other perverse things done by him was deposed by the Pope and therefore they ought not to subvert the antient
praesenti supersit His horumque similibus regali facundia editis praefaâ—us Petrus assensum praebere utile judicavit annuit Quapropter larga regis munificentia magnifice honoratus nullo modo se quicquam antiquae dignitatis derogaturum immo ut dignitatis ipsius gloria undecunque augmentaretur spoâ—pondit plena fide elaboraturum Pax itaque firma inter eos firmata est qui Legati officio fungi in tota Britannia venerat immunis ab omni officio tali cum ingenti pompa via qua venerat extra Angliam a Rege missus est At Canterbury he perused the antient privileges granted to the Prelates by the See of Rome touching their superiority over York Quibus ille perspectis atque perpensis testatus etiam ipse est Ecclesiam Cantuariensem grave nimis immoderatum praejudicium esse perpessam quatenus hoc velocius corrigeretur â—e modis omnibus opem adhibiturum pollicitus est Post haec Angliam egreditur By all these Parliamentary Councils and Proceedings in them and the Kings answer to this Legate it is most apparent from the testimony of Eadmorus present at most of them and then antient Hiâ—orians 1. That they all consisted during all the reign of King Henry the 1. of the King Bishops Abbots Earls Lords and Barons without any Knights Citizens Burgesses or Commons elected by the people 2ly That not only the legislative but judicial power or judicature of Parliament in all civil ecclesiastical and criminal causes debated or judged in them resided wholly in the King Prelates Earls Barons and Nobles which they joyntly and severally exercised by mutual consent as there was occasion 3ly That our Kings Prelates Nobles were then all very vigilant and zealous in opposing the Popes usurpations upon the antient Liberties Privileges Customs of the king kingdom and Church of England 4ly That those Antiquaries and others are much mistaken who affirm the Commons were called to the Parliament of 16 H. 1. as well as the Peers and Nobles and that since that time the authority of this Court hath stood setled and the COMMONALTY had their voice therein which the said H. 1. GRANTED TO THEM in love to the English Nation being a natural Englishman himself when as the Normans were upon terms of revolt from him to his Brother Robert Duke of Normandie it being clear by these Histories and all the Parliamentary Councils under King Henry the 1. and under Hen. the 2. King Ric. the 1. King John and Henry the 3. forecited and here ensuing that there were no Knights Citizens Burgesses or Commons elected by the people summoned to our Parliaments in their reigns succeeding Henry the 1. therefore not in his 5ly That the Opinion of Mr. Cambden Judge Dodridge Jo. Holland Sir Ro. Cotton Mr. Selden and others is true that the first Writ of Summons of any Knights Citizens Burgesses or Commons to Parliament now extant is no antienter than 49 H. 3. dors 10.11 That King Henry the 3. after the ending of the Barons wars appointed and ordained That all those Earls and Barons of the Realm to whom the King himself should vouchsafe to send his Writ of Summons should come to his Parliament and none else but such as should be chosen by the voice of the Burgesses and Freemen by other Writs of the king directed to them And that this being begun about the end of Hen. the 3. was perfected and continued by Edward the 1. and his Successors Which Holinshed Speed do likewise intimate in general terms So that upon due consideration of all Histories Records and judicious Antiquaries it is most apparent that the Commons had no place nor votes by election in our Parliaments in Hen. 1. his reign noâ— before the latter end of King H. 3. and Ed. 1. who perfected what his Father newly before him began in summoning them to Parliaments This being an irrefragable truth as I conceive the next thing to be considered of is this whether the Commons when thus called and admitted by H. 3. and E. 1. into our Parliaments had any share right or interest in the judicature of Parliaments then granted to them either as severed from or joyntly with the King and Lords And if any share or right at all therein at what time and in what cases was it granted or indulged to them With submission to better judgements I am clear of opinion that the King and Lords when they first called the Knights Citizens and Burgesses to Parliament never admitted them to any share or copartnership with them in the antient ordinary Judicial power of Parl. in civil or criminal causes brought before them by Writ Impeachment Petition or Articles of complaint as they were the supreme judicature and Court of Justice but reserved the judicial power and right of giving and pronouncing all Judgements in Parliament in such cases and ways of proceeding wholly to themselves admitting them only to share with them in their consultative Legislative and Tax imposing power as the Common Council of the Realm thereby in cases of Attainder by Act Bill or Ordinance a part of the Legislative not ordinary judicial authority of Parliament allowed them a voice and partnership with themselves and a share in reversing such Aâ—tainders by Act Bill or Ordinance by another Bill or Sentence but in no cases else except such alone wherein the King or Lords should voluntarily at their own pleasures not of meer right requite their concurrence with them The Arguments reasons inducing me to this opinion and irrefragably evincing it are these 1. The Form of the Writs for electing Knights Citizens Burgesses of Parliament with the retorns and Indentures annexed to them which are only ad faciendum consentiendum his quae tunc ibidem de Communi Concilio dicti regni contigerint ordinari Which gives them no judicial power in civil or criminal causes there adjudged as the Writs to the Lords doe give to them by these clauses Ibidem cum Praelatis Magnatibus Proceribus regni colloquium habere tractatum vobiscum c. colloquium habere tractare Personaliter intersitis Nobiscum ac cum Praelatis Magnatibus Proceribus super dictis negotiis tractaturi vestrumque consilium impensuri and usage custom time out of mind 2. Because when first summoned to our Parliaments they were never called nor admitted thereunto as Members of the Lords house or as persons equal to them in power nor admitted to sit in the same Chamber as Peers with them but as Members of an inferiour degree sitting in a distinct Chamber from them by themselves at first as they have done ever since which I have elsewhere proved against Sir Edward Cooks and others mistakes as Modus tenendi Parliamentum it self resolves if it be of any credit 3ly Because after their call to our Parliaments in 49 H. 3. they had scarce the Name nor Form of an House of Commons or Lower
omnes qui contra Regem cum Comite Simoni ' steterunt exhaeredicabantur quoram terras Rex suis sideli bus tradidit sineâ— mora pensatis meritis singulorum The Execution of this Sentence appears in the Patent Roll of 50 H. 3. m. 10. Schedula Where the Lands and Menors of Simon de Montfort and other Rebels adhering to him against the King are confiscated to the King and granted by him to sundry others there mentioned as the Lands of the Barons adhering to King Lewis against King John their native Soveraign were in like manner forfeited to and granted by him Claus 17 Johan Regis dors 7 10 11. By these two last Parliamentary presidents and proceedings against the Londoners Simon Montfort the Baronâ— and aâ— other his Confederates whether Peers or Commoners in case of Treason and Rebellion against the King to the forfeiting of their antient Customs and Liberties imprisoning and fining of their persons confiscation of their goods disinheriting them of their Lands and Freeholds by judgment and â—entence of the King and Lords it is undeniable that the King and Lords have an antient undoubted right to judge and censure both Peers and Commoners too in Parliament in cases of Treason and other misdemeanours there properly triable In the year 1266. King Henry the 3d. REGIONIS NOBILES assembling together at Westminster at Christmas to treat about setling the Peace of the realm after the accustomed manner there issued out an Edict against Earl Ferrers who was perpetually depriâ—ed of his Earldom according to the form of his Obligation for his Treason and rebellion against the King and Edward the Kings son was put in possession of two Counties or Earldoms to wit Derby and Leicester The same year after divers skirmishes between the disinherited Baroâ—s and persons and the Kings forces to settle a firm peace upon the Legates motion there was another Parliament held at Kenelworth wherein by the accord and consent of the King and Lords the persons disinherited whose Lands the King had confiscated for their Treason and Rebellion in the two former Parliaments were notwithstanding admitted upon their submission to the King for reasonable fines and compositions reduced to a certainty by Bishops and other Lords Commissioners both to their Pardons Liberties Charters and Inheritanceâ— 3. only excâ—pted their fines not exceeding 3. years value nor to be under one without any imprisonment or loss of Memberâ— as you may read at large in the accord between them and the King at Kenelworth printed in the Statutes at large See Par. 50 H. 3. dors 9. the Patent Charter and Claus Roâ—s of 50 51 52 53. of Henry the 3. and Claus 4 E. 1. m. 15. dâ—rso In the Parliament of 21 E. 1. John Archbishop of Yorke was impleaded and complained against for excommunicating the Bishop of Durham being juxta latus Regis per ipsius praecepâ—um against the dignity of the King and for imprisoning William of Willicon and John Rowman two of the Bishops servants in the Castle of Durham being excommunicated by him in his Ecclesiastical Court for the Wardship of certain Lands to which the Archbishop pretendâ—d a Right the Custody of which lands being a Temporal matter belonged not to Ecclesiastical cognisance The Archbishop protesâ—ing that although he ought not to answer for this matter in the Court of our Lord the King yet he was willing to answer And thereupon allegeth that the Bishop of Durham was his Subject and Suffragan and shews the whole matter and manner of the proceedings against him and his Servants in his Court and justifies the same To which Richard de Breelwell who prosecuted for the King answered that the Bishop of Durham was to be considered in a twofold estate one as a Bishop the often as an Earl in respect of his Temporalties and Tenements In which lâ—ter respect he was not subject to his Archiepiscopal Jurisdiction to which the Archbishop replied After much and â—ong debate it was adjudged and resolved by the Lords in Parliament that for this offence the Archbishop should be committed to prison and likewise agreed that in like cases it should ever be so this his Excommunication of them in his Ecclesiastical Court for a temporal matter being an high contempt against the King to the disinherison of his Crown and dignity Moreover he was adjudged to make his submission to the King and to pay a fine of 4000 maerks to the King for this offence The Archbishop hereupon makes his submission aend after much mediation to the King by his friends his imprisonment was remitted but the King would not abate one penny of his sine for the due payment whereof he was enforced presently to enter into a Recognisance and so dismissed The Record is very long worthy perusal but this is the summary of it Anno 1283. after the feast of St. Michael in PARLIAMENTO tento Salopiae David quondam frater Lewlini Principis Walliae per Potentiores Angliae judicatus judicialiter condemnatus ad caudas equorum per municipium Salopiae tractus et suspensus est visceribusque combustis corpus capite truncatum in quatuor partes est divisum quibus in Civitatibus Angliae Nobilioribus suspensis caput Londoniis super palum fixum est ad terrorem consimilium proditorum King Edward the 1. Ann. 1297. the 14. of his reign holding a Parliament at St. Edmonds where there was granted him an 8. part of the goods of Cities and Boroughs and a 12. part of the rest of the people the Clergy by reason of the Constitution of Pope Boniface made that year prohibiting under pain of Excommunication that no Taxes nor exactionâ— should by any means be exacted from the Clergy by secular Princes or payd by them of the goods of the Church denyed the King a Subsidy which he demanded of them to maintain his wars Whereupon the King that they might deliberate of a better answer deferred the business to another Parliament to be held at London the next day after St. Hillary An. 1298. The Parliament then assembling the Clergy therein persisted in their denyal of a Subsidy upon the foresaid ground The King thereupon by his Nobles advice excluded them from his protection and prohibited any Lawyers to plead for them in the Exchequer or before any other Regular Judge as being unworthy of his peace and seised all the goods movables and immovables of Clergy men found in Lay fees and confiscated them To redeem which Protection many of the Clergy by themselves and many by Mediators afterwards gave the King a fift part of their goods The King finding the Archbishop more rigid than the rest seised all his lands and commanded all his debts found in the Rolls of the Exchequer to be speedily levied on his goods For the same Archbishop by the assent of the Clergy had procured from the Pope an Inhibition Ne quis Clericorum Regi respiceret de bonis Ecclesiae The
iâ— regno Quid mihi suaderet vos prodere vel certe necare qui nihil lucri reciperem de vestra morte Nunquid hostes â—estri me ditiorem facerent in terra sua quam effectus sum in terra vestra et in natali solo Aut si regnum affectarem credendu â—ne est post vestram inteâ—fectinnem quod absit Dominos hujus Regni aquâ—nimiter ferre me posse Domini mei et patriae proâ—â—torem Deliâ—ere si placet fidem â—arâ—â—alia â—lerenâ—bus quia paratus sum more militis contra quemcunque mundi mihi in hac causa adversantem pugnare et meam innocentiam defendere et purgare Upon which and other words the King believed the Duke and received his excuses and committed the Frier at his request to the Custodie of the Lord John Holland usque ad diem quo causam diceret horum quae praeposuerat contra eum In ipsa nocte quae processit diem suae responsioniâ— the Frier was strangled and pressed to death by the said John and another Knight and the next day his dead corps was drawn through the street like a Traytor to take away the suspition of his unjust death Ipsi judices ipsi ministri ipsi tortores extiterunt Et hic fructus Parliamenti praesentis praeter hoc quod dominus Willielmus la Zouche quamvis gravissima detineretur aegritudine accersitus erat ad Parliamentum ad standium judicio Regis et Dominorum quia idem â—rater eum velut inventorem inceptorem et incentorem dixerat omnium quae scripserat extitisse Qui cum venisset lectica delatus quia propter guttam equitare non poterat compulsus est discinctus et discooperto capite ad haec omnia sibi objecta more latronum vel proditorum respondere Qui viriliter negavit objecta Sacramento firmans haec nunquam audisse vel hujusmodi cogitasse et ita demum absolutus est et domum redire permissus In this Parliament holden at Salisbury 7 R. 2. rot Parl. n. 11. to 16. John Cavendish a Fishmonger of London made his complaint first to the Commons and after to the Lords against Sir Michael de la Poole Chancellor of England demanding the Peace against him which THE LORDS granted after which he accused him for taking Bribes and delayes and injustice in a sute of his depending before him whereof he cleared himself by his own Oath and the Oaths of other witnesses sworn and examined before THE LORDS Whereupon the Lords being troubled with other weighty matters referred the Chancellors reparation for the Scandal to the ordering of the Judges The same Sir Michael de la Pole Earl of Suffolk and Chancellor of England in the Parliament of 10 R. 2. rot Parliamenti n. 6. to 18. was accused in full Parliament before THE KING BISHOPS LORDS by the Commons who exhibited sundry Articles against him recorded at large by Henry de Knyghton agreeing with the Parliament Roll. The effect of them was this That whiles he was Chancellor against his Oath to procure the profit of the King he had purchased lands and tenements of the King of great value at under rates and exchanged uncertainâ— customs and rents for good lands in deceipt of the King and for spending the Aids granted to the King the last Parliament to guard the Seas in another manner than they were granted whereby the Seas were not guarded and much mischief hapned to the Realm c. The Lords Commons refused to act any thing till the King came in person to Parliament and the Chancellor removed upon these Articles The Chancellor demanded of the LORDS 1. Whether he should answer these Articles without the Kings presence for things done whiles he was Chancellor for that he being Chancellor of England for the time represented the Kings person in Parliament during his absence thence Secondly Whether his Brother in Law Sir Richard Scroope might not answer for him whom he had by advice of his Counsel appointed to do it To which the LORDS answered and resolved It was honest and fit for him to answer for himself Whereupon he making protestation that he might adde to or diminish from his answer and that which might be honourable to him by advice of his Counsel the Lords granting thereunto He thereupon put in an answer and replication to all the Articles to which his Counsel added some things in making his defence The Commons replyed to his answer to w ch he by way of rejoyndâ—r replied and answered to them his defence sâ—eming very solid Yet the Commons upon his replication before judgement pressed the King then being in Parliament and she Lords that he might be committed for the grievous offences charged against him Whereupon he was arrested by the Kings command and committed to the custody of the Constable of England and after let to mainprise Ar last THE LORDS in full Parliament GAVE JUDGEMENT AGAINST HIM That for breach of his Oath all the Manors and lands which he had of the Kings gift contained in the Articles should be seised into the Kings hands to have them to him and his heirs for ever together with their mean profits and issues saving to him the name and Title of a Knight and Earl together with an annuity of 20 l. yearly granted him out of the profits of the County of Suffolk The like judgement was given against him for the lands exchanged by the King for the customs of Hull and the Priory of St. Anthony Walsingham addes That he was deprived likewise of his Chancellorship and adjudged worthy of death yet the Lords would not put him to death but sent him prisoner to Windsore Castle Rex autem non multo post annullavit quicquid in Parliamento statutum fuerat contra ipsum In the Parliament of 11 R. 2. rot Parl. â— 6 7. Thomas Duke of Gloucester kneeling before the King said that he understood the King was informed he went about to depose him and to make himself King Wherefore he offered to put himself upon his tryal in that behalf as the Lords of the Parliament would award Whereupon the King said in open Parliament that he thought the said Duke was nothing faulty and therefore held him excused After which all THE LORDS as well spiritual as temporal being in the Parliament claimed their liberties and franchises namely That all weightâ— matters in the same Parliament which should be after moved touching THE PEERS OF THE LAND ought to be discussed JUDGED AND DETERMINED BY THE M by the course of Parliament and not by the Civil Law nor yet by the Common Law of the Land used in other Couâ—ts of the Realm The which claim and liberties the King most willingly allowed and granted thereto in full Parliament After which Thomas Earl of Glocester Henry Earl of Derby Richard Earl of Arundel Thomas Earl of Warwick and Thomas Earl of Marshal Lords Appellants impeached Alexandâ—r Archbishop of York Robert de Vere
Earl of Ireland Mâ—chael de la Poole Earl of Suffolk Robert Tresylam Chief Justice Nicholas Bramber Knight and other of their adherents of High Treason against the King and his Realm The Articles they exhibited against them were 36 in number at large recorded in Henry de Knyghton de Eventibus Angliae l. 5. col 2713. to 2727. with the whole proceedings thereupon for which many were attainted condemned executed BY JUDGEMENT OF THE LORDS notwithstanding the Kings intercession for some of them to the LORDS they are likewise mentioned in the printed Statutes at large of 11 R. 2. c. 1 3 4. in Walsingham Hist Angliae p. 359 to 367. and other vulgar Historians I shall therefore for brevity refer you to them Exactum est juramentum a rege ad standum REGULATIONI PROCERUM et non solum a rege sed a cunctis regni incolis idem juramentum est expetitum In the Parliament of 14 R. 2. n. 14. The King and Lords without the Commons declared That in the 7 year of this King the Earldom of Richmond with the appartenances WERE ADJUDGED BY THE KING AND LORDS to be forfeited to the King by reason of the adherence of John Duke of Britain then Earl of Richmond to the French against his allegiance to the King and his father king Edward the 3. which judgement was not then enrolled in the Rolls of Parliament for certain causes known to the King and LORDS but was now inrolled and the lands granted to the Earl of Westmerland which King Henry the 4th would not revoke upon the Commons Petition to restore them to the Duke 1 H. 4. rot Parl. n. 78. In the Parliament of 17 R. 2. n. 11 Richard Earl of Arundel in the presence of the KING and LORDS accused the Duke of Lancastre of 5 particular misdemeanors In which when the King had justified him it was awarded by the King BY THE ASSENTS OF ALL THE LORDS that the Earl should in full Parliament make a formal submission to the Duke and crave pardon for his false accusation In the Parliament of 21 R. 2. rot Parl. n. 12. to 17. the Commons impeached Thomas Arundel Archbishop of Canterbury of high Treason for procuring the Duke of Glocester and others there named to accroach to themselves regal power and execute the Commission of 10 R. 2. when he was Chancellor praying that he might be kept under safe custody with a protestation of making for her accusations during the Parliament against him and others After which they prayed the King to give judgement against the Archbishop according to his desert who submitted himself to the Kings mercy Whereupon the KING LORDS and Sir Thomas Piercy the general Proctor for the Bishops in this case adjudged the fact of the Archbishop to be Treason and himself a Traytor and that thereupon he should be banished his temporalties seised and all his lands in proper possession or use together with his goods forfeited to the King and presenting the day and place of his departure into exile After this in the same Parliament of 21 R. 2. the Lords Appellant therein named accused the Duke of Glocester the Earls of Arundel and Warwick and others of High Treason for procuring the Commission in 10 R. 2. for raising forces and coming to the Kings person armed For accroching to themselves royal power and adjudging some to death and executing them as Traytors in the Parliament of 11 R. 2. For intending to surrender up their Homage and allegeance to the King and then to depose him and saying they had good cause to depose him c. Hereupon the Earl of Arundel being brought in custody to the Parliament before the Lords by the Kings command and assent of the Lords had his charge read and declared before him by the Duke of Lancaster Steward of England to which he pleaded his pardon which plea being disallowed because his pardon was revoked by this Parliament and he relying on it without any other plea the Lords appellants prayed judgement against him as convict of the Treasons aforesaid Whereupon the Duke of Lancaster by assent of the KING Bishops Earles and LORDS adjudged him convict of the Articles aforesaid and thereby a Traytor to the King and Realm and that he should be therefore hanged drawn and quartered and forfeit all his Lands in fee or fee-tayl which he had in the 10. year of this King with all his goods and chattels But for that he was come of Noble bloud the King pardoned his execution of hanging drawing and quartering and granted that he should be beheaded which was accordingly executed the same day on Tower hill by the Marshal of England The 28. of September the Earl of Warwick was brought ao his Trial in the same manner as the Earl of Arundel who confessed all the Articles submitted to the Kings grace and had the same judgement pronounced against him in the same manner as the Earl of Arundel But the King at the Lords Appellants and others requests pardoned his execution granted him his life and banished him into the Isle of Man The Duke of Norfolk by assent and Act of Parliament was tried in a Court Martial by the King Lords and some Knights for words spoken against the King and judgement was there given that he should be banished into Hungary and his lands forfeited to the King Within one year after such is the vicissitude of all worldly honour and power in the Parliament of 1 H. 4. Plac. Coron n. 1. to 11. at the prayer of the Commons the great Lords Appellants Edward Duke of Albemarl Tho. Duke of Surry John Duke of Exeter John Marquess Dorset John Earl of Salisbury and Thomas Earl of Glocester were all questioned and brought to their several answers before the King and Lords for their Acts and proceedings in the Parliament of 21 R. 2. the records whereof being read before them in Parliament they made their several answers and excuses thereunto whereupon the King and Lords after consultation thereupon ADJUDGED that the said Dukes Marques and Earls should lose their several Titles and Dignities of Dukes Marquess and Earls with all the honor thereunto belonging and that they should forfeit all the Lands and goods which they or any of them had given them at the death of the Duke of Glocester or since and that if they or any of them should adhere to the quarrel or person of King Richard lately deposed that then the same should be Treason The which Judgement was pronounced against them by William Thurning Chief Justice of the Kings Bench in Parliament by the Kings command but in the Parliament of 2 H. 4. rot Parl. n. 33. upon the Petition of the Lords and Commons to the King the Earls of Rutland and Somerset were pardoned and restored by the King in Parliament In the Parliament of 2 H. 4. n. 14. the Bishop of Norwich was accused by Sir Thomas Erpingham the Kings
by their Speaker acknowledge the right of judicature in the case of a Commoner to be only and wholly in the Lords even in a criminal cause and thereupon pray the Lords to give judgement against him upon their Impeachment which they did accordingly in their robes as Judges by the mouth of the Lord Keeper their Speaker In this very Parliament now sitting Decemb. 21. Jan. 14. Febr. 11. 1640. and July 6. 1641. The Commons House by their Members impeached Sir John Bramston Chief Justice of the Kings Bench Sir John Finch Chief Justice of the Common Pleas Sir Humphry Davenport Chief Baron Judge Berkly Judge Crawly Baron Weston and Baron Trever of high Treason and other misdemeanors for that they had trayterously and wickedly endeavoured to subvert the fundamental Laws and established Government of the Realm of England and instead thereof to introduce an arbitrary and tyrannical Government against Law which they had declared by trayterous words opinions and judgement in the point of SHIP MONY by their subscriptions and judgement given against them in the case of Mr. Hamden in the Exchequer Chamber Which Impeachments they transmitted to the Lords House praying THE LORDS to put them to answer the premises and upon their examinations and trial to give such judgement upon every of them as is agreeable to Law and Justice To avoid which judgement Sir John Finch fled the Realm and the rest of them made fines and compositions to the publike and were most of them removed from their Judges places After this the Lords themselves as Judges in Parliament passed several judgements and censures against Dr. John Pocklington for his Sunday no Sabbath and other Books and against Dr. Bray for licensing them In October 1643. The Lords fined and imprisoned Clement Walker Esq in the Tower for some scandalous words against the Lord Viscount Say a Member of he House of Peers After that the Lords alone without any Impeachment of the Commons on their privity imprisoned fined and censured one Morrice upon complaint of Sir Adam Littleton after a full hearing at which I was present for forging an Act of Parliament with four or five more of his confederates therein which was most clearly proved by Witnesses upon Oath whereby he would have defrauded Sir Adam of some Lands in Essex And at least one hundred more Commoners have been committed by THE LORDS this Parliament and fined by them for several offences Misdemeanors and Breaches of their Privileges as well as Lilburn and Overton yet none of them ever excepted against or demurred to their Jurisdiction nor did the Commons House ever yet except against them for these their proceedings as injurious or illegal but approved and applauded this their Justice Finally John Lilburn himself in his printed Pamphlet intituled Innocency and Truth justified p. 74 75. relates that on May 4. 1641. himself was accused of High Treason and brought before the Lords Barr for his life where one Littleton swore point-blank against him But he having Liberty given to speak for himself without any demurring to their Jurisdiction because we was a Commoner desired that his Witnesses might be heard to clear him was upon Mr. Andrews Oath acquitted at the Barr of the whole house And thereupon concludes I am resolved to speak well of those who have done me JUSTICE From all these punctual successive presidents impeachments and clear confessions of the Commons House themselves in many former and late Parliam and in this now sitting it is undeniable That the King and Lords joyntly and the Lords severally without the King have an indubitable right of Iudicature without the Commons vested in them not only over Peers themselves but likewise Commoners in all extraordinary criminal cases of Treason Felony Trespass and other Misdemeanors triable only in Parliament which hath been constantly acknowledged practised submitted to in all ages without dispute much more then have they such a just judicial rightfull power in cases of breach of their own privileges of which none are or can be Judges but themselves alone as Sir Edw. Cook resolves they being the supremest Court. And to deny them such a power is to make the Highest Court of Judicature in the Realm inferiour to the Kings Bench and all other Courts of Justice who have power to judge and try the persons causes of Commoners yea to commit and fine them for contempts and breaches of their Privileges as our Law books resolve and every mans experience can testifie The Lords right of Iudicature both over Peers and Commoners in criminal causes being thus fully evicted against the falseâ— ignorant pretences of illiterate Sectaries altogether unacquainted with our Histories and Records of Parliament which they never yet read nor understood there remains nothing but to answer some Authorities Presidents and Objections produced against it These presidents in Sir Edward Cooke Sir Robert Cotton and others are of 3 Sores 1. Such as are produced by them only to prove that the Commons have a Copartnership and joynt Authority with the King and Lords in the power and right of Judicature in our Parliaments 2ly Such as are objected to evidence they have a sole power of Judicature in themselves in some cases without the K. and Lords 3ly Such as are urged to prove they have no right of Judicature in Parliament in the cases of Commoners that are capital or criminal I shall propose and answer them all in order 1. Sir Edward Cook and Sir Robert Cotton produce these presidents to prove That the Commons have a Joint inâ—erest right and share with the King and Lords in the Iudicatory or Judicial power of Parliaments which I shall propound according to their Antiquity The 1. President alleged for it is that of Adomar Bishop of Winchester elect cited by Sir Robert Cotton in his Post-humous Discourse concerning the Power of the Peers Commons in Parliament in point of Iudicature who An. 44 H. 3. as affirms he was then exiled by the Ioint Sentence of the King Lords and COMMONS as appears by the Letter sent to Pope Alexander the 4th Si Dominus Rex et Regni Majores hoc vellent meaning Adomars revocation COMMUNITAS tamen ipsius ingressum jam nullatenus sustineret The Peers subsign this answer with their names and Peter de Moâ—tfort vice totius COMMUNITATIS as Speaker or Proctor of the Commons I answer under the favour of this renowned learned Antiquary that this president is full of gross mistakes For 1. Bishop Adomar was not banished the Realm at all either by King Lords or Commons but fled out of it voluntarily for fear to avoid the Barons who purâ—iâ—ed him with forces as Mat. Paris with others relate which the Nobles and Generality of the Barons in direct terms inform this Pope in another Letter sent together with this objected Maxime cum ipse a regno expuisus non extiterit sed sponte cesserit non ausus exhibitionem justiâ—iae quae
special Clause inserted into the Writs of Summons Nolumus autem quod tu seu aliquis alius Vicecomes regni nostri aut Apprentius aut aliquis alius homo ad Legem aliqualiter sit electus as appears by the Exem â—caâ—ron thereof in the Claus Roll of 5 H. 4. pars 2. m. 4 dorso in the Tower which I have viewed with mine own eyes by sundry transcripts thereof in Manuscripts and by this testimony of Thomas Walsingham who lived in writ the History of that time Direxit ergo Rex Brevia Vicecomit bus ne quosquam pro Comitatibus eligerent quovismodo milites qui in jure Regni vel docti fuissent vel Apprenticii sed tales omnino miâ—teren ur ad hoc nâ—gotium quoâ— constat ignorare cujusque juris methodum factumque est ita Whence he stiles it in his Margin PARLIAMENTUM INDOCTORUM No Lawyer being elected by reason of this Clause grounded on the forecited Ordinance Sir Edward Cook who is not only full of mistakes and mis-recitals of Records but most confident in them citing this passage of Walsingham thus bodly contradicts him But the Historian is deceived for there is no such Clause in these Writs but it was wrought by the Kings Letters by pretext of an Ordinance in the Lords House in 46 E. 3. when as the Writ it self in the Clause Roll concurring which Walsingham ascertains me that Sir Edward himself was deceived not the Historian by whom or upon what mis-information I know not And that he was so in truth we have his own expresse confession and testimony against himself within few leaves after At the Parliament holden at Coventry Anno 6 H. 4. the Parliament was summoned BY WRIT and by coâ—ler of the said Ordinance of Parliament in the Lords House in 46 E. 3. it was forbidden that no Lawyer should be chosen Knight Citizen or Burgess by reason whereof this Parliament was fruitless and never a good Law made thereat and therefore called Indoctum Parliamentum or Lack-latin Parliament And seeing these Writs were against Law ergo this Clause against Lawyers elections was in the Writs themselves Lawyers ever since for the great and good service of the Commonwealth have been eligible And then contradicting himself again in the very next lines he addes And albeit the prohibiting clause had been inserted in the Writ implying it was not yet bâ—iâ—g against Law Lawyers were of right eligible and might have been elected Knights Citizens or Burgesses in that Parliament of 6 H. 4. His reason is because Lawyers being eligible of Common right cannot be disabled by the said Ordinance of Parliament in the Lords House being no Act though Acts and Ordinances of Parl. are both the same in substance vigor as I have elsewhere proved at large against his New false Doctrine to the contrary Wherefore this Ordinance is still obligatory to practising Lawyers whiles they practise as well as to Sherifs whiles they are Sherifs unlesse they give over their practice sitting the Parl. to attend the service of the House which their practice makes them to neglect Clause 8 E. 2. m. 31. The chief Justice and other Officers of Ireland and R. de Burgo Earl of Vlton are sent for by Writ to come to the Parliament of England ad tractanduâ— cum Praelatis et Proceribus de regno nostro praedicto Claus 50 E. 3. part â— m. 23. Pro Hibernis de Hibernia venientibus ad Parliamentum Angilae there is a Writ directed to the Justices and Chancellor of Ireland Quod de Communitate Comitatuum Burgorum terrae praedictae faciatis habere per Breve de magno sigillo nostro hominibus ejusdem terrae nostrae praedictae regnum nostrum Angliae penes Concilium nostrum pro Communitate Comitatuum Burgorum ultimo venientibus videlicet euilibet eorum de Communitate Comitatus pro quo electus fuiâ— sive Civitatis sive Burgi rationabiles expensas suas c. Teste 25 Julii The Parliament ended the 10th of July By which Writ it is apparent That not only the great Officers and some Nobles but likewise knights and Burgesses were sometimes summoned and chosen in Ireland to come to this Parliament of England and had Writs for wages allowed them These varieties of the Kings writs for electing Knights and Burgesses summoning sometimes 4. sometimes 2. sometimes but one Knight out of a County most times 2 Citizens and Burgesses sometimes but one limiting the qualifications of their persons and summoning not only Great Officers and Peers but likewise Knights Citizens and Burgesses out of Ireland and particular persons by name amongst the Commons as in 32 Ed. 3. part 2. m. 32. dorso together with his making of new Burroughs by his Patents and authorizing them to send Burgesses to Parliam when they never sent any before there being now three times as many Burgesses of Parliament as there were in the reigns of King Edward the 1 2 and 3. as appears by the Writs in the Dorse of the Clause Rolls for their expences and wages are clear proofs and evidences that the King and his Council in the Lords House are the sole Judges of the elections of the Knights Citizens Burgesses of the Commons House and that they themselves have no power at all to seclude or eject any persons duly elected and sent thither by the Kings Writs though more or less than usual or from new erected Burroughs And if any City or Burrough which sends Members to the Commons House by the kings Charter or usage forfeit their Charters and Privileges for which the king seiseth them into his hands as in 49 H. 3. he seised Londons and others Liberties and Cambridges since he may deny to send them Writs to elect Citizens or Burgesses till their Franchises be restored and their Charters renewed and deny to grant them this liberty of Election any more if he please proceeding from his meer grace and grant to them at first and so to be restored out of Grace not Justice when forfeited by their default The Statute of 5 R. 2. Parl. 2. c. 4. The King willeth and commandeth it is assented to by the Prelates Lords and Commons That all persons which shall from henceforth receive the Summons of Parliament be he Archbishop Bishop Abbot Peer Duke Earl Baron Baronet knight of the Shire Citizen of the City Burgess of the Burgh or other singular person or Commonalty and come not at the said Summons except he may reasonably and honestly excuse himself to our Soveraign Lord the King he shall be amerced and otherwise punished as of old times hath been used to be done within this Realm Here the Excuse is to be made by the Knights Citizens Burgesses and Commons as well as Lords Spiritual and Temporal to THE KING not Commons House and if they cannot excuse themselves unto him then they are to be amerced as of old time have been used And that was never by the Commons House but
if that of Ingulphus with other our Historians and some Lawyers be true which Sir Edward Cook and Mr. Selden deny that King Alfred first divided the Realm into Counties as all grant he did into Hundreds and Tithings and erected Hundred Courts wherein Knights of the Shire were alwaies yet are and ought to be elected there could be no Knights of Shires at least if any Citizens or Burgesses to serve in Parliament before this division though there were Earls Dukes Barons before his reign who were present by the Kings summons not peoples elections at our Great Councils or Parliaments as Mr. Selden and Sir Henry Spelman undeniably manifest and I have elsewhere proved at large Their sitting voting judging therefore in Great Councils Parliaments being so antient clear and unquestionable ever since their first beginning til now and the sitting of Knights Citizens Burgesses by the peoples election in our antientest Great Councils Parliaments not so clearly evident by History or Records as theirs we must needs acknowledge subscribe to this their Right and Title or else deny the Knights Citizens Burgesses rights to sit vote in our Great Councils Parliaments rather than theirs who have not so antient nor clear a Title or right as they by many hundreds of years Fourthly This Right and Privilege of theirs is vested legally in them by the very Common Law and Custom of the Realm which binds all men By the unanimous consent of all our Ancestors and all the Commons of England from age to age assembled in Parliament since they sat in any Parliaments who alwaies consented to desired and never opposed the Lords sitting voting power or Judicature in Parliament and by Magna Charta it self signed and ratified by King John wherein it is expresly granted Ad habendum COMMUNE CONCILIVM REGNI de auxiliis assidendis de Scutagiis assidendis submoneri faciemus Archiepiscopos Episcopos Abbates Comites MAJORES BARONES REGNI singulatim per Literas nostras c. And in the Great Charter of King Henry the 3. they are first mentioned and provided for Hereupon King Henry the third not long after Magna Charta was granted and at the same time it was proclamed confirmed with a most solemn Excommunication in the presence of all the Lords and Commons by all the Bishops of England against the infringers thereof summoning a Parliament at London in the year 1255. to aid him in his warrs in Apulia the Earls and Barons absolutely refused to give him any assistance or answer at all for this reason Quod omnes Barones tunc temporis non fuerunt juxta tenorem Magnae Chartae suae vocati ideo sine Paribus suis tunc absentibus nullum voluerunt tunc responsum dare vel Auxilium concedere vel praestare That ALL THE BARONS were not summoned by him to this Parliament as they ought to be according to the tenor of Magna Charta whereupon they departing in discontent and refusing to sit longer the Parliament was first adjourned and at last dissolved And upon this very ground among others the Parliament of 21 R. 2. with all the Acts and proceeding therein were totally repealed and nulled by the Parliament of 1 H. 4. because the Lords who adhered to the King were summoned by him to the Parliament and some of the opposite party imprisoned impeached unsummoned and many of the Knights of the shire were elected only by the Kings nomination and Letters to the Sherifs And the Parliament it self kept by force viris armatis et sagittariis immensis brought out of Cheshire as an extraordinary guard quartered in the Kings Court at Westminster and about Charing Crosse and the Muse of which Grafton and other Historians write thus That they fell into so great pride of the Kings favour that they accounted the King to be as their fellow and they set the Lords at nought yet few or none of them were Gentlemen but taken from the plough and Cart and other Crafts And after these rustical people had a while courted they entred into so great a boldness that they would not let neither within nor without the Court to beat and slay the Kings good Subjects to take from them their victuals and pay for them little or nothing at their pleasure as our free-quarâ—erers do now falling at last to ravish mens wives and daughters And if any man fortuned to complain of them to the King he was soon rid out of the way no man knew how or or by whom so as they did what they listed the King not caring to doe justice upon them but favouring them in their mis-doings confiding in them and their guards against any others of the kingdom which gave the Lieges of his kingdom great matter of commotion and discontent The bringing up of which guard to Westminster to force and overawe the Parliament to effect his designs is one principle Article exhibited against him by the Parliament of 1 H. 4. wherein he was forced to resign his Crown and then deposed I pray God our new armed Guard and Courtiers at Whitehall and the Muse of as mean condition as those fall not by degrees to the self-same exorbitances contempt of the King Lords Parliament and oppression of the people to their general mutining and discontent In the Parliaments of 6 E. 3. N. 1. Parl. 2 N. 5.6 8 9 8 E. 3. N. 5. 15 E. 3. N. 4. 17 E. 3. N. 2. 20 E. 3. N. 5. 21 E. 3. N. 4. 22 E. 3. N. 1. 25 E. 3. N. 1. 29 E. 3. N. 4. 30 E. 3. N. 1. 37 E. 3. N. 1. 42 E. 3. N. 1. 50 E. 3. N. 1. 51 E. 3. N. 3. 1 R. 2. N. 1. 2 R. 2. N. 1. 3 R. 2. N. 1. 4 R. 2. N. 1. 5 R. 2. N. 65. 6 R. 2. N. 6. 7 R. 2. N. 1. 9 R. 2. N. 1. 8 H. 4. N. 54. We find in these Parliament Rolls that these Parliaments have been usualy prorogued adjourned from the days they were summoned to meet and have not saie nor acted at all because sundry of the Lords some Commons were not come but absent by reason of foul weather shortness of warning or other publique imployments all their personal presence in Parliament being reputed necessary and expedient And 20 R. 2. N. 8. The Commons themselves in Parliament required the King to send for such Bishops and Lords who were absent to come to tho Parliament before they would consult upon what the Chancellor propounded to them in the Kings name and behalf to consider of To recite no more antient presidents In the Parliament of 2 Caroll the Earl of Arundel not sitting in the Parliament being after his summons committed by the King to the Tower of London about his Sons mariage May 25. 1626. without the Lords privity and consent whereby their privileges were infringed and the House deprived of one of their Members presence thereupon the House of
Peers made this memorable Petition and Remonstrance of their Privileges to the King The humble Remonstrance and Petition of the Peers MAy it please your Majestie we the Peers of this Realm now assembled in Parliament finding the Earl of Arundel absent from his place amongst us his presence was therefore called for But thereupon a message was delivered us from your Majestie by the Lord Keeper That the Earl of Arundel was restrained for a misdemeanor which was personal to your Majesty and lay in the proper knowledge of your Majesty and had no relation to matter of Parliament This Message occasioned us to inquire into the Acts of our Ancestors and what in like cases they had done that so we might not erre in a dutifull respect to your Majesty and yet preserve our right and privileges of Parliament And after diligent search made both of all Stories Statutes and Records that might inform us in this case we find iâ— to be an undoubted Right and constant Privilege of Parliament That no Lord of Parliament sitting in Parliament or within the usual time of Privilege of Parliament is to be imprisoned or restrained without sentence or order of the House unlesse it be â—or Treason or Felony or for refusing to give surety for the Peace And to satisfie our selves the better we have heard all that could be aleged by your Majesties learned Counsel at Law that might any way infringe or weaken this claim of the Peers and to all that can be shewed or alleged so full satisfaction hath been given as that all the Peers in Parliament upon the question made of this Privilege have una voce consented that this is the undoubted right of the Peers and hath been inviolably enjoyed by them Wherefore we your Majesties loyal Subjects and humble Servants the whole body of the Peers in Parliament assembled most humbly beseech your Majesty that the Earl of Arundel a Member of this Body may presently be admitted by your gracious favour to come sit and serve your Majesty and the Commonwealth in the great affairs of this Parliament And we shall pray c. Upon which Remonstrance and Petition the King refusing to inlarge him thereupon the Lords to maintain their Privilege adjourned themselves on the 25 and 26 of May without doing any thing and upon the Kings refusal to release him they adjourned from May 26 till June 2. refusing to sit and so the Parliament dissolved in discontent his imprisonment in this case being a breach of privilege contrary to Magna Charta In this very Parliament the Lord Digby Earl of Bristol being omitted out of the summons of Parliament upon complaint to the Lords House was by order admitted to set therein as his Birthright from which he might not be debarred for want of Summons which ought to have been sent unto him ex debito Iustitiae as Sir Edward Cook in his 4 Institutes p. 1. The Act for ttriennial Parliaments and King John great Charter resolve And not long after the beginning of this Parliament upon the Kings accusation and impeachment of the Lord Kimbolton and the five Members of the Commons House both Houses adjourned and sate not as Houses till they had received satisfaction and restitution of those Members as the Journals of both Houses manifest it being an high breach of their Privileges contrary to the Great Charter If then the Kings bare not summoning of some Pears to Parliament who ought to sit there by their right of Perage or impeaching or imprisoning any Peer unjustly to disable them to sit personally in Parl. be a breach of Privilege of the fundamental Laws of the Realm and Magna Charta it self confirmed in above 40 successive Parliaments then the Lords right to sit vote and judge in Parliament is as firm and indisputable as Magna Charta can make it and consented to confirmed by all the Commons people and Parliaments of England that ever consented to Magna Charta though they be not eligible every Parliament by the Freeholders people as Knights and Burgesses ought to be and to deny this birthright and privilege of theits is to deny Magna Charta it self and this present Parliaments Declarations proceedings in the case of the Lord Kimbolton a Member of the House of Peers Fifthly The Treatise intituled The manner of holding Parliaments in England in Edward the Confessors time befose the Conquest rehearsed afterwards before William the Conquerour by the discreet men of the Kingdom and by himself approved and used in his time and in the times of his successors Kings of England if the Title be true and the Treatise so antient as Sir Edward Cook others now take it to be When as its mention of the Bishop of Carlisles usual place in Parliaments which Bishoprick was not founded till the year of our Lord 1132. or 1134. as Matthew Paris Matthew Westminster Roger Hoveden Godwin and others attest in the later end of Henry the first his reign Its menâ—ion of the Mayors of London other Cities and writs usually directed to them to elect two Citizens to serve in Parliament whereas London it self had no Mayor before the year 1208. being the 9. year of King John nor other Cities Mayors til divers years after nor can any Writs for electing Knights of Shires Citizens or Burgesses to serve in Parliament which it oft times writes of be produced before 49 H. 3. nor any Writs to levy their expences or wages for their Service in Parliaments which it recites be produced before the reign of King Edward the 1. Nor was the name of Parliament which it mentions and writes of so much as used by any Author before the later end of King Henry the 3. his reign after whose reign this Modus was certainly compiled towards the end of K. Richard the 2. or after as other passages in it evidence beyond all contradiction This magnified Treatise be it genuine or spurious determines thus of the Kings and Lords rights to be personally present in all Parliaments The King is bound by all means possible to be present at the Parliament unless he be detained or let there from by bodily sickness and then he may keep his Chamber yet so that he lye not without the Manour or Town where the Parliament is held and then he ought to send for twelve persons of the greatest and best of them that are summoned to the Parliament that is two Bishops two EARLS two BARONS two Knights of the Shire two Burgesses and two Citizens to look upon his person to testifie and witness his estate and in their presence he ought to make a Commission and give Authority to the Archbishop of the Place the Steward of England and Chief Justice that they joyntly and severally should begin the Parliament and continue the same in his name express mention being made in that Commission of the cause of his absence thence which ought to suffice and admonish the OTHER NOBLES
the Commons may sit alone as Cyphers but not as a Parliament or Council to vote impose or act any thing that is binding to the people since regularly they neither are nor ever yet were in any age no more a Parliament in any case without the King and Lords then the King and Lords alone are now a Parliament though antiently they were so of themselves without the Commons or the trunk of a man a perfect man without head or shoulders If 3. be joyntly impowred or commissioned to do any act by Commission Deed or Warrant any one or two of them can doe nothing without the third If many be in Commission of the Peace Sewers or the like three of the Quorum joyntly to act therein joyntly if any one of the three be absent or dead all the rest can doe nothing because their authority is joynt not single In Parliament it self if either house appoint a Committee of 3 5 or 7. to examine act or execute any thing if but one of this number be absent or put out the rest can doe nothing that is legal or valid even by course of Parliament neither can either House sit and vote as a House unlesse there be so many Members present as by the Law and custom of Parliament will make up an House as every mans experience can inform him If these Levellers then will absolutely cut off or exclude the King or Lords from the Parliament they absolutely null and dissolve it and the Act for continuing this Parliament cannot make nor continue the Commons alone together as a Parliament no more than the Lords or King alone without the Commons the King or either house alone being no Parliament but both conjoyned and enlivened with the Kings personal or representative presence The cutting off the head alone or of the head and shoulders altogether destroys and kills the body Politick and Parliament as well as the body natural If the King dies or resigns his Crown or be deposed the Parliament thereby is actually dissolved as it was resolved in the Parl. of 1 H. 4. n 1 2 3. 1 H. 5. n. 26. 4 E. 4.44 and Cooks 4 Institutes p. 46. The last Parliament of 21 Jac. dissolved by his death So if the Lords or Commons dissolve and leave their House without any adjournment or if the King by his Writ dismisse or dissolve either of the Houses the Parliament is thereby dissolved as the forecited Presidents and the latter clause of the writ for the election of Knights and Burgesses manifests And a new kind of Parliament consisting only of Commoners when the old one only within the Act for continuing this Parliament made up both of King Lords and Commons is dissolved neither will nor can be supported or warranted by the Letter or intention of this Law or any other Law custom or right whatsoever Ninthly All the Petitions of the Commons in all antient modern Parliaments to the King Peers for their redresse of grievances recorded in our antient Parliamentary Rolls The usual Prologue to most of our antient printed Statutes in the Statutes at large in Poulton The King at the request of the Commons of or by the assent of the Prelates Dukes Earls Barons and other great men there assembled hath ordained these things or Acts underwritten all Acts of Parliament now extant usually running in this form The King with the assent of the Lords Spiritual and Temporal in Parliament hath ordained And be it enacted by the Kings moct excellent Majesty the Lords Spiritual and Temporal in this present Parliament assembled The famous Petition of Right 3 Car. so much insisted on beginning thus Humbly shew unto our Soveraign Lord the King the Lords Spiritual and Temporal and Commons in Parliament assembled thus answered by the King Let right be done as is desired The Act for continuing this Parliament made by the King and Lords as well as by the Commons who never intended to exclude themselves out of this Parliament by that Act or that it should continue if either of them were quite dismembred from it with all Acts and Ordinances since Yea the very Protestation and Solemn League and Covenant taken by the Commons Lords and prescribed by them to all others throughout the three kingdoms which couple the Lords and Commons always together neither of them alone being able to make any binding Act nor Ordinance to the Subjects unlesse they both concurr and have the Kings royal assent thereto no more than one Member alone of the House can make a House and ranck the Lords always before the Commons and the King before them both so firmly hold forth establish the Lords and Kings undoubted Rights to sit and Vote in Parliament and decry this new invented Monopoly of a sole Parliament of Commons without King or Lords and that absolute Sovereign Power these Lilburnists new Lights have spied out and set up for them in Utopia that impudency it self would blush to vent such mad absurd irrational Frenzies and Paradoxes as these crack brain'd persons dare to publish and they may with as much truth and reason argue that one man is three that the Leggs and trunk of a man are a perfect man without head neck arms and shoulders or that the Leggs Ribs Bowels of the Body are and ought to be placed above the head neck shoulders as that the House of Commons are or ought to be an entire Parliament the sole Legislative Power the only Supreme Authority paramount both King and Lords who must not now have so much as a Negative voice to deny or contradict any of the Commons Votes or Ordinances though never so rash unjust dishonourable prejudicial or dangerous to the whole Kingdom as these new Dogmatists affirm Tenthly The Commons themselves in their joynt Declaration and Resolution with the Lords this Parliament concerning his Majesties late Proclamation 9 August 1642. printed by their special order declare and stile his House of Péers to be the Hereditary Counsellors of the Kingdom The like they declare in their Declaration of 16 January 1642. Mr. John Pym in his Speech at Guildhall in London 14 January 1642. made and printed by the Commons special order asserted That the Lords have an Hereditary interest in making Laws in this Kingdom The Commons House in their Remonstrance of the State of the Kingdom 15 December 1641. affirm That the Peers are the Kings Great Council That the King summoned the Great Council of Péers to meet at York the 24. of September and there declared a Parliament to begin the 3. of November following In which Parliament when the Lords and Commons met they add But what can we the Commons doe without the conjunction of the House of Lords and what conjunction can we expect there when the Bishops and Recusant Lords are so numerous and prevâ—lent thereby confessing that without the Lords concurrence who are the Great Council of the Realm the
Kings accusation at the Bar of the whole House And for my part I am resolved to speak well of those that have done me justice and not to doubt they will deny it me till such time as by experience I find they doe it And at that time he was so much for the Loâ—ds that he writes most disgracefully derogatorily of the Commons House and other his Confederates by his example tells them of their want of power injustice and illegal proceedings quarrels only with them and their Committees for their delays and injustice towards him telling them to their faces in many of his former and late printed Libels That they have no power at all to commit or examin him or any other Commons of England without the Lords nor yet to give or take an Oath That they are but a peece and lowest part of the Parliament not a Parliament alone That they can make no binding Votes Ordinances or Laws nor commit nor command any Commoner without the Lords and in one or two Pamphlets more he endeavours to prove them to be now no lawfull house of Commons at all nor would he ever acknowledge them to be so and that he would make no more conscience of cutting theirs and the Lords throats the Tyrants and Oppressors at Westminster than of killing so many Weasels and Polcats with many other like scurrilous and mutinous expressions His own printed Papers Petitions Actions therefore are an unanswerable confutation of his malicious coÌ„tradictions of their Authority and judicature since for their exemplary justice on him And he must either now re-acknowlege thâ—ir right of sitting voting judging in Parliament to be lawfull or else renounce his own former Petitions and addresses to them for justice retract all his former printed Papers asserting their judicature and extolling their justice yea disclaim their judgement for vacating his own sentence in the Starchamber their awarding him damages and passing an Order to recover them as meerly null and void being made before no lawfull nor competent Judges as now he writes since not elected by the Peoples Vote Let those his followers who admire him for his Law observe these his palpable invincible contradictions and be ashamed and afraid to follow such an ignorant erronious guide who writes only out of malice faction not of judgement as his contradictions evidence 13ly The Acts for preventing the inconveniencies happening by the long intermission of Parliaments And to prevent the inconveniences which may happen by the untimely adjourning proroging or dissolving the Parliament made this Parliament and assented to by the King at the Commons importunity confirm the Lords interest right to sit and Vote in Parliament beyond all dispute and give them now power to summon a Parliament themselves in some cases in default of the King his Chancellor and Officers 14ly The antient form still continued till this day of dismissing and dissolving Parliament the King licenseth THE LORDS and COMMONS TO DEPART HOME and TAKE THEIR EASE 37 E. 3. n. 34. 38 E. 3. n. 18. 40 E. 3. n. 16. 43 E. 3. n. 34. 45 E. 3. n. 8.13 47 E. 3. n. 7. and all Parliaments since proves their right of sitting in and attending the service of the Parliament in person without special license of the King dispencing with their absence during its continuance in despite of all ignorant cavils to the contrary The Kings license of them to depart being void and nugatory if not bound by Law to attend the Parliament in person as well as the Commons 15ly Finally this hereditary right of the English Barons Lords is demonstrated resolved in this very clause of their Patents of creation when first created Earls or Barons inserted into all Patents since 20 H. 2. and implyed by our Laws though not precisely mentioned in all the antient Patents of creation before Volentes per praesentes concedentes pro nobis haeredibus successoribus nostris quod praefotus A. Comes vel Baro c. S. haeredes sui masculi ut Comites vel Barones de S. in omnibus teneantur tractentur reputentur et eorum quilibet habeat teneat et possideat sedem et locum in Parlamentis nostris haeredum et successorum nostrorum inâ—ra regnum nostrum Angliae inter alios Comites vel Barones ut Comes vel Baro. Than which nothing than be more positive and direct in point I shall close up all the premises with two memorable Clauses in two writs of Summons to Parliament evidencing not only the undoubted right but absolute necessity of the Lords personal fitting voting and advising in our Parliaments In the Parliament held at York in the 6 year of King Edward the third the Archbishop of Canterbury with some other Bishops and Nobles being absent thereupon the Prelates Nobles Knights and Burgesses there present refused to act any thing and resolved they could conclude nothing by reason of their absence whereupon they prayed the King to adjourn the Parliament and by a new Writ to summon the Archbishop and all other Bishops and Lords then absent personally to appear at York on the day whereto the Parliament was adjourned under a penalty as is evident by these Clauses in the Writs of Summons then issued Rex é venerabili in Christo Patri eadem gratia Archiepiscopo Cantuar. c. Verum quia dictis negotiis in eodem Parliamento praepositis quae salvationem jurium Coronae nostrae regni nostri intimè contingunt Et nobis incidunt multum cordi per Praelatos Proceres Milites Comitatuum tunc ibidem praesentes deliberato consilio responsum existit quod in tam arduis negotiis sine vestri ac aliorum Prelat ac Magnat et Procerum prodictorum absentium praesentia consilium et assensum praebere non possunt nec debent Ita quod nobis cum instaâ— a suppli◠〈◊〉 Paâ—liam illud usque ad diem Mercurâ—iâ— octavâ—s Sancti Hilari prox iâ—de futur continuari seu proâ—ogari inteâ—im vos eâ— caeteros Prelatos et Proceres tunc absentes convocari faceremus Ac nos quanquam huâ—usmodi â—iâ—tio noâ—s dâ—mâ—sâ— eâ— periculosa plurimum videâ—tur eorum Petitioni in hac parte annuentes c. Parliamentum praedictum usque ad octav praedictas duximus continuandum seu prorogandum Ac Praelatis Magnatibus Militibus Civibus Burgensibus injâ—nximus quod tunc ibid. intersint quacunque excusatione cessante ac omnibus aliis praetermissis Ne igitur contingat quod absit dicta negotia ad nostri regni nostri damnum dedecus per vestri seu aliorum ABSENTIAM ulterius prorogari vobis in fide dilectione quibus nobis tenemini et sub periculo quod incumbit districte iniungendo mandamus quod omni excusatione cessanie sitis personaliter apud Ebor. in dictis Octab. nobiscum cum caeteris Praelatis Magnatibus dicti regni nostri super dictis negotiis tractaturus et
vestrum consilium impâ—nsurus Scientes quod si per VESTRAM ABSENTIAM CONTIGERIT dicta negotia quid absit ulterius retardari dissimulare non poterimus quin AD VOS EXINDE SICUT CONVENIT GRAVITER CAPIAMUS Teste Rege apud Ebor. 11 Die Decembris Eodem modo mandatum est 17 aliis Episcopis 13 Abbatibus 40 Magnatibus aliis And in another writ of Summons the same year to the same Archbishop of Canterbury there is this Clause inserted against making any Proxie Scientes pro certò quod nisi evidens et manifesta necessitas id exposcat non intendimus Procuratores seu Excusatores pro vobis admittere ea vice propter arduitatem negotiorum praedictorum Which Clause amongst other reasons was then inserted because the Clergy in a Parliament held at Eltham some two years before refused to grant this King an aid for the defence of Ireland by reason of the Archbishops absence from it adjourning their answer to this aid till they all and the Archbâ—shop assâ—mbled together in a future Convocation to be summoned by the Kings writ as the Claus Rol. An. 4 E. 3. m. 3. dorso recordâ— Thus the Bishops and Clergy refused to grant an aid to King Henry the 3. Anno 1232. and likewise another aid to the Pope Anno 1244. because many of the Bishops and Abbots who were summoned to the Parl. then held were not present Adding Tangunt ista Archiepiscopos necnon universos Angliae Praelatos cum ergo Archiepiscopi Episcopi alii Ecclesiarum Praelati sint Absentes in eorum praejuditiis respondere nec possumus nec debemus Ouia â—id â—cere praesumeâ—emus in prejuditium omnium Absentium fieret Praelatorum All excellenâ— Presidents both for the Lords and Commons in all succeeding ages not to vote or act any thing or grant any aids or Subsidies upon any occasion menace or intreaty whiles their Members who ought to be personally present are absent much more when forcibly secured or secluded by internal confederacy or external armed violence or the whole House of Peers sequestred or suppresâ—ed by factious seditious Levellers who now design their total and final extirpation out of their future New-modelled Parliaments Having thus impregnably evinced the Lords undoubted right to sit and vote in Parliament though they be not elective by the peoples voices as Knights and Burgesses are I shall next discover unto our illiterate Ignoramusses who oppose their right the justice good grounds and reasons of our Ancestors why they instituted the Lords to sit and vote in Parliament by right of their very Nobility and Peerage which will abundantly satisfie rational men and much confirm their right First the Nobles and Great Officers in all Kingdoms and in our Kingdom too in respect of their education birth experience imployments in military State-affairs have always been generally reputed the wisest most experienced Common wealths men best able to advise Counsel the King and kingdom in all matters of Government Peace or War as our Historians Antiquaries Polâ—tians Records acknowledge and attest whence they were antiently stiled Aeldermen Wisemen Magnates Optimates Sapientes Sapientissimi et Clarissimi viri Conspicui Clarique Viri Primates Nobiles c. in our Historians and Records our Parliaments in that respect being frequently stiled in antient times Concilium SAPIENTUM upon which Grounds our Kings Lords and Commons too when ever they recommended Councellors of State to the King in Parliament made choice of Lords and other Peers for for their Privy Councellors as most wise able discreet Therefore it was thought fit just and equal the King should ever summon them to the Parliament by his Writ without any election of the people for their own inherent wisdom excellency valour learning worth the Original cause of advancing enobling them at first as is expressed in their Patents and evident by these Scripture Texts Esth 1.13 14. Isay 19.11 12 13. Jer. 5.5 c. 10.7 c. 51.57 Dan. 2.48 c. 6.1 2 3. Gen. 41.39.40 Psal 105.21 22. compared together This ground of calling the Nobles to the Parliament is intimated in the very words of the summons Et ibidem VOBISCUM Colloquium habere tractare de arduis urgentibus Regni Ecclesiae Anglicanae negotiis VESTRUMQUE CONSILIUM IMPENSURI c. Et hoc nullatenus omittatis which clause recited in the Commons writs of election likewise implies them to be men of most wisdom and experience able to counsel and advise the King in all hit weighty arduous affairs both of the Kingdom and Church whence by Hereditary antient right they are THE KINGS GREAT COUNCEL and so acknowledged by the Commons themselves this last Parliament I could give many instances wherein the Commons in Parliament have extraordinarily applauded the Lords and Peers for their great wisdom and specially desired their wholsom Counsel as persons of greater wisdom and experience than themselves but for brevity sake I shall cite only these ensuing Records In the Parliament of 21 Edw 3. rot Parl. n. 4 5. Wil. de Thorp in the presence of the King Prelates Earls 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 days they should give answer to the King and his Counsel 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 Council and what shall be so amongst them determined they the Commons will thereto assent confirm 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 than themselves who confessed their inability therein and therefore submitted to assent to whatever the Nobles and Councel should therein advise Him 28 Edw. 3. n. 55 58. The Commons submit the whole businesse of the Treaty of peace with France to the order of the King and of his Nobles And 36 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 redress of grievances and publike affairs to the King prayed that unto the Wednesday ensuing their Articles may be committed to the Bishops Barons other wise men there named by them to be amended which the king grauted whereas the Lords exhibited their Articles apart 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
admittere dominus Eboracensis licet contra personam praesentatam nihil inveniret quod obsisteret sed solam inhibitionem vestram praetenderet Verum cum in incendio vicinae domus nostrarum immineat periculum vobis tanquam patri supplicamus quatenus tam praedictum Robertum quam nos omnes singulos praedicta libertate praesentandi Clericos nostros ad ecclesias nostras vacantes libere uti permittatis injungentes praedicto Archiepiscopo quod I. Clericum ad praedictam ecclesiam ab eodem praesentatum pro quo etiam preces effundimus devotas praesertim cum sit negotiis Regis regno nostro necessarius nisi aliquod canonicum obstiterit non obstante priori mandato vestro admittat Ut ex hoc nos ad propensiorem famulatum ecclesiae provocetis Ne cum sit jus advocationis praedictorum feudorum pro quibus Domino nostro militamus cogamur illius invocare subsidium qui jura libertates laicorum protegere â—enetur confovere Valete Anno 1140. In octavis vero Epiphaniae congregati sunt Londini Archiepiscopi et Episcopi cum multis aliis Magnatibus praesente etiam Legato reponentes querimoniam coram Rege in curia sua super variis injuriis oppressionibus quotidianis desolationibus illatis ecclesiae per iniquum Regis consilium contra suas chartas juramenta temere veniendo nec patitur suis pastoribus viduatas ecclesias respirare sed ut ab eisdem ecclesiastica bona variis argumentis extorqueat annis plurimis eas in manu sua detinet nec patitur electiones canonicas celebrari Super quibus injuriis illatis diatim multiplicatis omnes se asserunt vehemâ—ntâ—r admirari cum ipse Rex toties juraverit se jura ecclesiastica illibata conservare ipsomet audiente candelam tenente quod omnes Episcopi in violatores libertatum ecclesiasticarum simul sententiam fulminabant in cujus sententiae consummatione Rex ut alii candelam extinxit inclinandâ— Et erant contra Regem in querimonium Episcoporum capitula circiter 30. Et eotenus processum est quod lata sit iterum sententia terribiliter nimis in omnes Regis consiliaâ—ios qui ejus animum ad praedicta enormia conabantur inclinare In the Parliamentary Council held at Merton An. 1229. Anno 20 H. 3. cap. 9. All the Bishops to set up the Popes and their own Canons above the Common Law of England earnestly intreated the Lords that they would consent that those who were born before matrimony might be legitimare as well as those born after mariage as to hereditary succession because the Church held such for legitimate et omnes Comites et Barones una voce responderunt nolumus leges Angliae mutare quae hucusque usitatae sunt approbatae Upon which Sir Edw Cook observes That the Nobility of England have ever had the Laws sf England in great estimation and reverence as their best birthright Anno 1244. the 28 of Henry the third Pope Innocent sent one Martin his Legate into England with letters demanding a large contribution from the Prelates Abbats and Clergy to be speedily collected as he should direct which coming to the knowledge of all the Lords and Great men omnes ad Praelatos accesserunt ut uno per omnia consilio uterentur quia hoc negotium generalem statum Regni contingebat Whereupon all the Prelates by the Lords advice and encouragement denied to grant the Pope any aid at all sic soluto Concilio recesserunt Moreover this same year Romana Ecclesia rubore deposito tempore novi Papae Innocentii 4. non cessabat provisiones cotidianas redditus impudenter extorquere a via antecessorum suorum non exorbitando imo manum super omnes aggravando Exiit igitur murmur licet sero in cordibus Anglorum diu conceptum et retentum in manifestam querimoniam et quasi parturientes loqui non poterant amplius se continere Patientia enim eorum desidiosa erat humilitas infructuosa est imo potius damnosa et ipsa abutebatur Romana protervitas insatiabilis Et in unum convenientes totius Regni Nobiles Regem efficacissime super hoc conâ—enâ—rum asserentes se malle mori quam amplius tales enormitates tollerare Non enim eorum neque antecessorum suorum intentio fuit quando contulerint bona viris religiosis et aliis locis pia consideratione constructis ut ipsa ad aâ—bitrium Papae viris Italicis ignotis et eis quos noverant Simoniis usuris pollutos viciis multimodis quibus non est cura praedicatio vel hospitalitas Christi fidelibus impendenda contribuerent Rex igitur non mediocriter ad iram provocatus sciens ac sentiens talibus queremoniis inesâ—e veritatem scripsit Domino Papae verbis humilibus efficacissimis ut talia studeret paterna solicitudine corrigere The next year Anno 1245. This Martin violently seising on the lands and profits of divers Churches and religious persons prorerva injuriosa authoritate wherein the King protected him against all men whereby the condition of the Realm became most miserable thereupon urgente igitur necessitate totius Regni Angliae maxime praeceptum est ab ipso tempore EX PARTE ALIQUORUM MAGNATUM pro multiformi et incessabile oppressionne et depraedatione Regni dolentium et miserantium diligenter die nocte custoditis omnibus partibus Angliae PAPALES LITERAE quae quotidie ad emungendam pecuniam portabantur caperentur Wherupon the Governour of Dover took one of the Popes Posts laden with such Bulls and Letters to exact monies by divers means as he arrived at Dover and took away all his Bulls and Letters as he was commanded by the Lords imprisoning the Post in Dover Castle whom the King upon Martins complaint released causing the Letters and Bulls to be restored to him in perniciem Regni et Honoris sui Hereupon the Barons and Lords assembled at Laiton and Dunstable at Torneyes and from thence sent one Fulco to Martin residing in the New Temple at London commanding him presently to depart the Realm or else he and all his should be hewn in pieces within 3 days who thereupon repairing to the King for protection and demanding whether this were done by his direction The King answered no Sed BARONES MEI vix se continent quin consurgant in me eo quod tuas in Regno meo eorundem quae â—us modum excedunt depredationes injurias hactenus tolleravi Quorum etiam furorem vix compescui quin et in te iâ—ruentes te membratim non dilacerarent Upon which Martin demanding that the Marshal might convoy him safe to the Seaside â—â—ed with great hast and fear out of England After which the king coming to himself and discerning his Error by the advice of all the Nobility of the Realm there was an elegant Epistle written wherein the
over-execrable exactions of the Pope and the manifold exactions of his Legates and of certain men exercising an unheard of power were contained wherwith 6 Noble and discreet men elected by the Parliament and universality were sent to the Council of Lyons gravem super his SUPER EXACTIONE TRIBUTI IN QUOD NUNQUAM CONSENSIT REGNI UNIVERSITAS coram Concilio querimoniam reposituri et talium releuamen onerum importabilium Regno Angliae miserecorditer impendi rogaturi The Proxiâ—s of the Parliament and universality of England arriving at the Council of Lyons by William de Poweric their Proctor propounded their grievances complaining That in time of War a Tribute was injuriously extorted by the Court of Rome Quod nunquam Patres Nobilium Regni vel ipsi consenserunt nec consentiunt neque in futurum consentient unae sibi petunt exhiberi justit am cum remedio Ad quod Papa there present nec oculos elevans nec vocem verbum non respondit Thomas of Walsingham adds That the Messengers sent to the Council by the king de Consilio Praelatorum Comitum Baronum were purposely sent ut concessioni Regis Johannis de censu annuo pro Anglia Hibernia contradicerent eo quod de Regni assensu non processerat Sed et per Archiepiscopum Câ—ntuariensem fuerat reclamatum vice totius Regni Sed Papa hoc indigere morosa deliberatione respondens negotium posuit in suspenso This detestable Charter of King John being burnt amongst his writings in this Council as was reported in the Popes own Chamber there casually set on fire After w ch Poweric delivered to the Council the foresaid to the Pope concerning the manifold extortions innovations oppressions of the Church of Rome exercised in England there recorded at large and worthy perusal The close of which Epistle of all the Barons is this That although the King being a Catholike Prince c. would continue in the obedience of the See and Church of Rome and seek the increase of her honour and profit jure tamen Regio dignitateque Regia plenius conservatis Nos tamen qui in negotiis suis porâ—amus pondus dierum et aestum et quibus una cum ipso Domino Rege intendere conservationi Regni diligenter incumbi dictas oppressiones Deo et hominibus detestabiles gravamina nobis in oleribiliâ— non possumus aequanimiter tolerare nec per Dei gratiam amplius tolerabimus Placeat igitur Paternitati vestrae hanc â—upoâ—icationem nostram taliter exaudire quod a Magnatibus et universitate Regni Angliae tanquam a filiis in Christo chatissimis speciaâ—es gratias debeatis merito reportare The Pope refusing to give any answer or redress thereunto at last through their importunity be granted divers privileges to the Churches Prelates and Nation of England tenâ—ing towards a reformation of their grievances but yet contrary thereunto increased their grievances instead of redressing them whereupon Anno Dom. 1246. the 30 of Henry the 3. by the Nobles sollicitation Medio quadragessimae edicto Regio convocato convenit ad Parliamentum generalissimum totius Regni Anglicani totalis Nobilitas Londini videlicet Praelatorum tam Abbatuum et Priorum quam Episcoporum Comitum quoque Baronum without any Knights Citizens or Burgesses chosen by the people to represent them in it ut de statu Regni jam vaci lantis efficaciter prout exigit urgens necessitas contractarent Angebat enim eos gravamen intollerale a Curla Romana incessanter illatum quod non poterant sine Nota desidiae et imminenâ—e ruina tolerare quod Papa promissionis suae transgressor gravius quam ante eorum querimoniam manum diatim exasperans aggravabat et hoc quasi per contemptum c. These Grievances they drew up into 7. Articles which were read in and approved by the Parliament this being the tenor of them Gravatur regnum Angliae ex eo quod Dominus Papa non est contentus subsidio illo quod vocatur Denarius beati Petri sed à toto Clero Angliae gravem extorquet contributionem adhuc multa graviora nititur extorquere hoc facit sine domini Regis assensu vel consensu contra antiquas Consuetudines Libertates et regni jura et contra appellationem et contradictionem Procuratorum Regis Regni in generali Concilio factam Item gravatur Ecclesia et Regnum eo quod Patroni eccleâ—iarum ad eas cum vacaverint clericos idoneos praesentare non â—ossunt prout Dominus Papa eis per literas suas concessit sed â—onferuntur Ecclesiae Romanis qui penitus idioma regni ignorant in periculum animarum et extra Regnum pecuniam asportant illud ultra modum depauperando Item gravatur in Provisionibus à Domino Papa factis in pensionibus exigendis contra literarum suarum tenorem in quibus continetur quod ex omnibus retentionibus factis in Anglia non intendebat conferre nisi 12 beneficia post praedictarum literarum confectionem sed credimus multa plura Beneficia ab eodem postea esse collata et provisiones factas Item gravatur quod Italicus Italico succedit et quod Anglici extra Regnum in causis auctoritate Apostolica trahuntur contra Regni consuetudines contra jura scripta eo quod inter inimicos convenire non debent contra Indulgentias à praedecessoribus domini Papae Regi regno Angliae concessas Item gravatur ex multiplici adventu illius infamis nuncii NON OBSTANTE per quem Juramenti religio consuetudines antiquae Scripturarum vigor concessionum auctoritas statuta jura et privilegia debilitantur et evanescuut quod infiniti de regno Angliae oppressi sunt graviter afflicti nec se Dominus Papa versus Regnum Angliae in plenitudine suae potestatis revocanda curialiter ita vel moderate gerit prout Procuratoribus Regni ore tenus dederat in promissis Item gravatur in tallagiis generalibus collectis et assisis sine Regis assensu et voluntate factis contra appellationem et contradictionem Procuratorum Regis Universitatis Angliae Item gravatur eo quod in beneficiis Italicorum nec jura nec pauperum sustentatio nec hospitalitas nec divini verbi praedicatio nec ecclesiarum utilis ornatus nec animarum cura nec in ecclesiis divina sunt obsequia prout decet et moris est patriae sed in aedificiis suis parietes cum tectis corruunt et penitus lacerantur Upon the reading of these Articles all and every one agreed to send both solemn Letters and Messengers to the Pope and humbly to intreat him to remove these intollerable Grievances and yoaks of bondage all the Abbots and Priors by themselves the Bishops by themselves the King by himself and all the Earls and Barons by themselves in their own names and of the whole Clergy and people of England writing several Letters to the Pope for
in barr of the Writs of Summons directed to them because those writs themselves did ennoble and make them their posterity successors Peers of Parliament though they held no Lands by Barony 8ly it is undeniable by sundry presidents that the Kings general writs of Summons create none Lords or Peers of Parliament for life or Inheritance if they hold not by Barony which I shall evidence by these presidents in point To the Parliament of 49 H. 3. there were no less than 64 Abbots 36 Priors the Master of the Temple and 5. Deans of Cathedral Churches namely of York Exeter Salisbury Lincoln Bath and Wells summoned by general writs as the Bishops Earls Barons and other Nobles were yet this did not make themselves nor their Successors Barons or Peers of Parliament for neither of these Deans nor their successors were ever afterwards summoned to Parliament as they would and must have been had this writ made them or their successors Barons and Lords nor any of the Abbots or Priors but such only who held by Barony who were constantly summoned but those who then held not by Barony or Militare servitium if casually summoned to one Parliament were yet upon their complaints thereof omitted and discharged in the next as the Writs of Summons themselves attest and Mr. Selden manifests out of them Therefore the Writs did neither create them Barons for life much less their successors after them for then they should still have of right been summoned to succeeding Parliaments and ought not to have been discharged In the 18 of Ed. 2. A Writ of Summons was sent by the King Magistro Gilberto de Middleton Archidiacono Northampton Officiali Curiae Cantuariensis Magistro Roberto de Sancto Albano Decano de Arcubus London But no writ was ever directed to them afterwards but in this one Parliament only therefore it made them not Lords and Barons for life inheritance or succession The like is evident by the forecited presidents of the Abbots of St. James Leicester and other Priors So the Gardians of the Spiritualties of Bishops during the vacancy and their Vicars Generals during their absence beyond the Seas have been frequently summoned to Parliaments by writs But being summoned only as substitutes or in the right of the Bishops or Bishopricks it made them no Barons or Peers neither were they ever esteemed such heretofore or at this day as Mr. Selden informs us And as it was thus amongst Abbots Priors Deans and other Clergy-men that these writs made them not Barons for life nor yet in succession so by the selfsame Law and Reason they made no Laicks who held not by Barony such for life or inheritance Whence we find many such in the summons to Parliament of King Henry 3. Ed. 1 2 3. R. 2. H. 4 5 6. who were summoned once twice or thrice but never afterwards nor any of their name or posterity of which no other solid reason can be given but that these general writs of summons made them neither Barons for life nor inheritance no more than they did Abbots Priors or Clergymen For example I find Edmond Barstaff Robert de Crendon H. Huse Ader de Estlye Serton de Hansladorn and sundry others summoned by Writ to Parliament in 33 E. 1. Peter Corbet Andrew de Hamloe Henry Tregor Maurice de Buen Roger Banuent and some others in 13 E. 2. Simon Ward Henry Dandle William Blunt in 4 E. 3. Roger de Claudes Ralph de Bevil William de Kineston in 14 E. 3. Ralph Bulmer Thomas Bugworth in 22 E. 3. William de Ridehal in 27 E. 3. Robert de Colvil John de Kirton John de Wodhurst John Northwood John de Strivelin in the Parliament summons of 37. and one of them again of 38 E. 3. Henry Quarts in 6 H. 4. Henry Cuart in 7 H. 4. William Cheyney Chief Justice in 4. 6 H. 6. But neither of their persons nor any of their posterity were ever after summoned that I find to any other Parliaments as no doubt they would have been had those their writs of summons made them Lords and Barons In the Clause Roll of 5 E. 3. m. 12. dorso the King sent writs into Ireland to William de Burgh Earl of Ulster James de Botâ—ler Earl of Ormond William de Bremigham Knight and Walter de Burgh strictly enjoyning them with all speed to come over into England Nobiscum tractaturi vestrumque Consilium impensuri concerning his intended Voyage in person into Ireland and setting the peace and affairs therof and I read in the reign of King Henry 3. Edward the 1. 3. and other of our Kings that the King of Scots and his Nobles were oft summoned by Writs to our English Parliaments concerning the affairs of Scotland yet these writs made none of them Peers and Barons of our English Parliaments From all which I may safely conclude Sir Edward Cooks and others Opinions to be no Law but a clear mistake that a general writ of Summons doth or can create any who hold not by Barony Peers or Barons for life much less in fee or fee-tayl Therefore such may be afterwards elected Knights or Burgesses of Parliament and be Members of the Commons house and refuse to sit or serve in the Lords house upon summons without contempt or fine but no Baron or Peer of the Realm may be thus chosen or neglect his service in the Lords house Finally Mr. Cambden in his Britannia p. 120 122. Apologia p 11. and Mr. J. Selden in his Titles of Honour part 2. chap. 5. Sect. 31. p. 708. to 718. assert That as some Spiritual Barons who were conceived to be Barons by writ as well as by tenure though sometimes summoned to Parliament by writ were wholly omitted at length as not having of right Voice and Place with the rest because they held not by Barony So sundry of the Lesser Barons and Tenants in Capite holding only of the King as Vavasors by Knights service and not by an intire Barony were likewise excluded the Parliament and not summoned thereunto by King John Henry the 3. Edw. the 1. being not great and honourary Barons nor having estates sufficient to support that dignity and that as Mr. Selden conceites by some Law made not long before the Great Charter of King Iohn procured by MAJORES BARONES who foreseeing that their power and dignity might suffer much diminution if the new tenants in chief or Patentees of Escheated Baronies and the rest that were decayed should have equality with them and be indifferently Barons of the Kingdom every way as they were procured a Law in some of the Parliaments that preceded the Great Charter of King John by which themselves only should hereafter be properly stiled summoned as BARONS and the rest only Tenants in chief or Knights which Titles shold be given them as distinct names from Barons which could not but much lesen the dignity and honor of the rest
ut rex ipsis omnibus qui in eorum comitiva arma moverant literas patentes indemnitatis concederet ne pro transgressionibus transactis vel praesentibus a rege seu quovis alio futuris temâ—oribus punireâ—ur Ad haec dominus rex respondit quod Hugo le Spencer pater in suo negotio mare transierat Hugo junior in mari ad custodiendum quinque Portus prout ex officio renebatur qui de jure vel consuetudine exulare non debent ante responsa data per eosdem Adâ—câ— praeâ—ereâ— quod eorum petitio juris rationis fundamento carebat eo maxime quod dicti Hugo senior Hugo junior parati semper fuerant omnibus de se conquerentibus in forma juris respondere si probare possent eos in aliquo statuta terrae laesisse parati semper suerant legibus regni parere Postremo cum juramento addidit quod noluerit sacramentum violare ad quod astrictus fuerat in Coronatione sua concedendo literas pacis et indulgentiae tam notorie delinquentibus in suae personae contemptum et totius regni perturbationem et majestatis regiae laesionem Hiis auditis Proceres acti in â—uâ—iam confesâ—im ad arma rosiliunt milites quidam super armatura cotiâ—cas induerunt vocatas quarteloys Armigeri vero indumenta bendas habuerunâ— quibus indumentis expost induti tracti sunt suspensi plurimide procerum Comitiva Cum fastu igitur pompa nimia Barones Londonias adierunt hospitatique in suburbia civitatis manebant pacifice donec licentiam ingredi civitatem obtinuissent obtento a rege civitatis ingressu Magnates sicut prius in petitione sua fortiter perstiterunt Tandem interveniente regina praefatis episcopis laudabiliter mediantibus rex inductus est propter werrae periculum evitandum ut condescenderet votis petitionibus Procerum praedictorum Edictoque super hiis per comitem Herefordiae in aula Westmonasterii publicato Hugo senior in exilium actus est Sed Hugo junior in diversis locis latitans in Anglia in mari permansit The Clause Roll of 14 E. 2. m. 17. Schedula records the proceedings with this addition that King Edward the 2. having summoned the Lords to come to a Parliament with the rest of the Council at Glocester Humfry de Boun Roger de Mortimer and their confederates refused to come upon the Summons for fear of Hugh Spencer who was made Chamberlain in pleno Parliamento 12 E. 2. at York desiring that he might be committed and kept in safe custody till the Parliament for they weâ—e unwilling to come to him so long as he was with the King The King said he much wondred at this their carriage in regard Spencer was never questioned in any other Parliament since he was made Chamberlain for any misdemeanour ignorare non debetis nec potestis quod mandata nostra omnibus singulis ad Nos ad hujusmodi mandata nostra convenientibus protectâ—o desensio sunt debent secundum legem et consuetudinem Regni nostri As for removing Spencer from him which they desired he said it were unjust and of ill example aliis Ministris nostris sâ—ipsum amoveremas à Nobis totaliter sine causâ— Praefâ— uâ— vero Hugonem sive quemaâ—is alium Custodiae sine causa committere non possumus nec debemus cum hoc esset conira tenorem Magnae Chartae de libertatibus Angliae et contra Communem Legem Regni nostri ac contra Ordinationes made by himself and the Lords in Parliament Idem enim Hugo se protulit plane ac publice coram Nobis ad respondendum in Parliamento nostro alibi prout debuit querelis nostri siâ—gulorum aâ— ipso conqueretium volentium ad standum inde recto c. And thereupon he commands them to come and treat cum caeteris de Concilio at Oxford whereas it appears by the Dorse of this Roll he had formerly summoned them and the rest of the Council to Glocester whether these Earls refused to come Claus 15 E. 2. dorso 32. The whole proceedings against the Spencers in Parliamen are at large recorded but cancelled by order of the Parliament at York They were sent to every Court to be inrolled and the writ recites thar their judgement was per pares in praesentia Regis Soon after the same year the King summoned a Parliament at York on the 3. of September where this judgement against the Spencers was questioned as erronious and being referred to the consideration of the Provincial Council of Canterbury they conceived it to be erronice factum because the Spiritual Lords never assented to it neither could they doe it because it was Jndicium sanguinis for if they submitted not to the exile they were to be proceeded against as Enemies to the King and Realm After which the King and some of the Lords had the sentence read to them and they said It was erroniâ—ous The Earls of Richmond Pembroke and Arundel said They gave their voyces for fear of the other Noble mens power and the Judges said Consideratio praedicta fuit contra Legem consuetudinom regni The King writes down all this and then sends to some of the Bishops that were absent from the Council to know their minds 4 Januarii who concurring in judgement with the rest thereupon the Process Judgement and Act against the Spencers was nulled and made void before the King Lords and Commons who were consenting to it before 1. Because they were not called to it to make their defence 2ly Because the Lords Spiritual who were Peers assented not to it 3ly Because against MAGNA CHARTA the franchises of England Nullus liber homo utlagetur c. 4ly Because the Faults were not sufficiently proved 5ly Because the Lords in the Kings absence of their proper authority usurping to themselves royal power had given the judgement of his royal assent with the assent of the Lorâ—s and Commons without his privity and against his will The judgement and process of this repeal and nulling their sentence were sent by Writ into every County to proclaim and to null and cancel the first judgement A little before which Parliament Thomas Earl of Lancaster and sundry other Lords Knights and Gentlemen for adhering to him and levying war against the king were arraigned impeached before the Lords and commanded to be hanged drawn quartered and beheaded Comitum et Baronum Consilio as Walsingham relates without the Commons peculiar assent and accordingly executed Anno 1326. Hugh Spencer the younger notwithstanding the repeal of his exile being taken by the Kings forces was brought to Hereford and there arraigned publiquely before William Trussel a Judge His inditement is at large recorded in the Chronicle of Leicester and in Henry de Knyghton de Eventibus Angliae l. 3. c. 15. col 2547. c. beginning thus Hugo de Dispencere En Parlement nostre
the Attainders repealed by Bill afterwards In the Parliament of 25 H. 8. c. 12. Elizabeth Barkin Richard Master Edward Barkin and sundry others were attainted and condemned of High Treason John Fisher Bishop of Rochester Thomas Gold and others of misprission of High Treason by Act of Parliament In the Parliament of 28 H. 8. c. 7. Queen Anne George Lord Rochford Sir Henry Norris Sir Francis Weston William Breerton Esquire and Mark Sutton were convicted and attainted of High Treason and their lands forfeited by Bill In the Parliament of 32 H. 8. Thomas Lord Cornwell was convicted and attainted of High Treason by Bill against Law and the great Charter without ever being called to answer or any legal hearing for the Treasons therein expressed according â—o his own intentions to have thus proceeded against others without legal tryal In the Parliament of 33 H. 8. c. 21. Queen Katherine Jane Lady Rochford were convicted and attainted of High Treason by Bill to which Act the king was enabled to give his royal assent by Letters Patents signed by him under his hand with his great Seal notified and published in the HIGHER HOUSE to the Lords Spiritual and Temporal and the Commons there assembled without comming to the House in person to give his royal assent thereto In the Parliament of 2 3. Ed. 6. ch 17. Sir william Sharington Knight being indicted and attainted of High Treason for forging and coyning of mony called Testons his attainder was confirmed by Act of Parliament and his lands forfeited And ch 18 Sir Thomas Seymor Lord Seymor of Sudley and high Admiral of England for his trayterous aspiring to the Crown of this Realm and to be King of the same and for compassing and imagining by open Act to deprive the King of his royal estate and title of his Realms and for compassing and imagining the death of his Noblemen and most trayterously to take away and destroy all things which should have sounded to the let or impediment of this his most trayterous and ambitious enterprise as the Act recites and for other his misdemeanors innumerable untruths falshoods deceiptfull practises outrages against the King oppression manifest extortion upon the Subjects of the Realm was adjudged and attainted of high Treason by Bill and to sustain such pain of death and other forfeitures aes in cases of High Treason have been used being a Member so unnaturul unkind and corrupt and such a heynous offender of his Majesty and his Laws that he cannot nor may not conveniently be suffered to remain in the body of the Commonwealth but to the extreme danger of the Kings Highness being the head and of all the good Members of the same and of too pernicious and dangerous example that such a person so bound to his Majesty by sundry great benefits and so forgetfull of them and so cruelly and urgently continuing in his false and treacherous intents and purposes against his Highness and the whole estate of his Realm should remain among us In the Parliament of 1 Mariae ch 1. the Attainder of Queen Katherine is reversed by Bill and ch 16. the Attainders of John Duke of Northumberland Thomas Cranmer Archbishop of Canterbury William Marquess of Northampton John Earl of Warwick Sir Ambrose Dudley with other Knights and Gentlemen formerly convicted and attainted of Treason according to the Law of the Realm for their detestable and abominable Treasons in proclaiming and setting up Queen Jane to the peril and great danger of the person of Queen Mary and to the utter loss disherison and destruction of the Realm of England if God in his infinite goodness had not in due time revealed their trayterous intents as the Act recites at the Petition and with the assent of the Lords Spiritual and Temporal and Commons in Parliament were confirmed and ratified by a special Act. In the Parliament of 29 Eliz. c. 1. the Attainders of Thomas Lord Paget Sir Francis Englefield and sundry other Knights and Gentlemen who were lawfully indicted convicted and attainted of many unnatural detestable and abominable Treasons to the fearfull peril and danger of the destruction of the Queens Majesties person and of the Realm were confirmed by a special Act and ch 3. there is another Act to avoid fraudulent assurances made in certain cases by Traytors In the Parliament of 3 Jacobi ch 2. Sir Everâ—rd Digby Robert Winter Guy Fawkes Robert Catesâ—y and all the rest of the Gunpowder Traytors who undertook the execution of the most barbarous execrable and abominable Treason that could ever enter into the hearts of most wicked men by blowing up the Lords House of Parliament with the King Queen Prince Lords Spiritual and Temporal Judges Knights Citizens and Burgesses of Parliament therein assembled were attainted of High Treason and their former attainders and convictions confirmed by a special Act And in this very last Parliament the Earl of Strafford Lord Deputy of Ireland and William Laud Archbishop of Canterbury after judgement of high Treason upon their several impeachments and trials given against them by the Lords in their House were likewise attainted of Treason and their judgements ratified by a special Bill and Ordinance to which the Commons assented as well as the Lords their assents to Attainders by way of Act or Bill being so necessary that if the King in Parliament Wills that such a man shall be attainted of Treason and lose his lands and the Lords assent and nothing is spoken of the Commons in the Bill this is no Act nor good Attainder in Law and the petson shall be restored by the opinion of all the Judges 4 H. 7. f. 18. Broke Parliam 42. Fitz. 3.7 H. 7.14 11 H. 7.27 Broke Parliam 107. Plowden 79.32 H. 6.18 As the Commons in our English Parliaments have assented to all these and some other Bills and Acts of Attainder cited in Sir Edward Cooks 4 Institutes ch 1 2. and Mr. St. Johns Argument at Law concerning the Bill of Attainder of High Treason of Thomas Earl of Strafford printed by Order of the Commons House 1641. So I find that the Commons in Ireland have done the like in the Parliaments held in Ireland as the Printed Statutes of Ireland 28 H. 8. c. 1. for the Attainder of the Earl of Kildare and others of High Treason 11 Eliz. ch 1. for the Attainder of Shan O Neyle and others of High Treason of 13 Eliz ch 6. 7. for the Attainders of Fiâ—zgerald and others of High Treason Of 27 Eliz. ch 1. for the Attainders of Iames Eustace and others of High Treason of 28 Eliz. ch 8. 9. for the Attainders of the Earl of Desmond John Brown and others and of 11 Jacobi ch 4. for the Attainders of the Earl of Tyrone and others of High Treason for their several rebellions insurrections wars against their Soveraigns and other Treasons mentioned in these respective Acts abundantly evidence But yet the Commons assents to all these Bills
of Attainders in cases of high Treason did not institute them Judges of these persons nor give them any share in the judicial right and power of Parliaments 1. Because most of these persons thus attainted by Bill were Queens Dukes Earls Lords Barons and Peers of the Realm who were triable to be judged only by their Peers none else by the Common Law of England Magna Charta c. 29. and sundry other Acts not by the Commons who are not their Peers 2ly Because most of these parties thus attainted by those Bills were first attainted tried judged condemned in Parliament by the Lords alone as their proper Judges upon the complaints or impeachments of the Lords Appellants or of the Commons themselves or else before some other Judges upon indictments and legal tryals and those Acts did only confirm and ratifie their precedent attainders recited in them 3ly Because in many of these Acts the Commons did only petition that their Attainders might be ratified by Bill and the King and Lords assents thereto which was done at their request as Petioners not Judges 4ly Because their Judgements and Attainders passed formerly by the Lords and Judges were good in Law though thus ratified afterwards by Bill for the greater terror certainty and satisfaction and these Bills did pass no new Judgements and Attainders upon the parties but only ratifie the old and in cases where there was no precedent Attainder they attaint them only by vertue of their Legislative power without any indictment tryal or hearing of the parties themselves as Judges of them some of them being dead when attainted taking all the charges in the Bills pro confesso and notoriously true and proved such by some other precedent legal convictions and evidences 2ly There is a formal proper Judgement given in our Parliaments both in criminal and civil causes upon complaints Articles Petitions Impeachments Inditements Informations Writs Appeals Reports References and that either against or concerning Peers themselves or against or concerning Commoners and other Laicks or Clergy-men And in all such cases proceedings the King and Lords alone have a proper judiciary power or right of Judicature without the Commons vested in and executed by them which I shall abundantly evidence and make good by sundry memorable Presidents out of our Histories and Records in all ages not vulgarly known and for the most part never yet remembred by any who have wriâ—ten of our Parliaments and the proceedings in them whose Treatises are very slight unsatisfactory and in many things of this nature erronious I shall begin first with presidents concerning Ecclesiastical Temporal Lords alone proceeded against impeached judged censured in our Parliaments for sundry criminal causes Offences Treasons wherin the House of Commons can challenge no share or voice in the Judicature especially in the case of Temporal Lords who are such in their own right and sit in Parliament ratione Nobilitatis but the Lords alone and that by the express Letter and Resolution of the Great Chariers of King John and of King Henry 3. and Ed. 1. c. 14.29.15 E. 3. c. 2 3 4. and roâ— Parl. n. 6.8.11 R. 2. rot Parl. n. 6 7.5 H. 4. rot Parl. n. 12.28 H. 6. ror Parl. n. 51 52 53. 20 H. 6. c. 9.26 H. 8. c. 13.28 H. 8. c. 7.18.31 H. 8. c. 12.32 H. 8. c. 4.33 H. 8. c. 12 20 23.35 H. 8. c. 2.1 Ed. 6. cap. 12. 1 Mar. c. 6.1 2 Phil. Mar. c. 3.4 5 Phil. Mar. c. 4.1 Eliz. c. 1.5.5 Eliz. c. 11.13 Eliz. c. 1.14 Eliz. c. 1 2 3. 18 El. c. 1.23 El. c. 1 2.27 El. c. 2.3 E. 3.19 Fit Corone 16â— 1 H. 4.1.10 E. 4.6 Brooke Trial 142. Stamford l. 3. c. 1. f. 152.33 H. 8. Brookâ— Trial 142.34 H. 8. Bro Corone 172.13 H. 8.11 Br. Treasons 29.38 H. 8. Br. Treasons 2.33 Dyer 99.107.208.360 Cook 6 Rep. f. 52.9 Rep. f. 30.87 and Cooks 2 Instit f. 28 29 48 49 50. and his 3 Instit c. 1. 2. p. 27 28 29.30 31. All which declare enact resolve That the Peers of this Realm shall not be tried or proceeded against but only by the lawfull judgement and verdict of their Peers The Lords and Barons of Parliaments trial by Peers alone of their own rank being so essential that they cannot waive nor put themselves upon the trial of the Country by 12. ordinary Freeholders as was resolved in the Lord Dacres case Pa. 26 H. 8. Cooks 3 Institutes f. 30. much less then can they waive their Peerage it self and sit as Commoners in the Commons house as I have formerly proved The first president I meet with in our Histories of this nature is in the reign of Cassibelan the British King who having repulsed Julius Caesar upon his first landing in this Island and forced him to return into France Edictum fecit ut omnes Proceres Britanniae convenirent to the City of â—roynovant now London where Evelin nephew to Androgens Duke of Troynovant slaying Heralgas nephew to Cassibelan upon a sudden quarrel as they were playing together Cassibelan thereupon commanded Evelin to be brought before him talem sententiam quam Proceres regni judicarent subire which Androgeus opposing â—aying sese suam Curiam habere in illa diffiniri debere quicquid aliquis in homines suos clamaret thereupon Cassibelan threatned to waste his Country with fire and sword if he refused to deliver up his Nephew to justice to undergo the sentencâ— quam Proceres dictarent which he accordingly executed for refusing to put his Nephew upon the Trial and Judgement of the Nobles for this murder The next president I find is that of Wilfrid Archbishop of York who for refusing to divide his Bishoprick into two Bishopricks more and for endeavouring to perswade Queen Emburga to become a Nun and desert her husband Egfrid King of Northumberland was through that Queens malice and prosecution in two several Parliamentary Councils Anno 678. 692. twice deprived of his Archbishoprick and banished the Realm by King Egfrid Theodor Archbishop of Canterbury and the rest oâ— the Bishops and Nobles of the Realm assembled in these Councils and at last restored to his Archbishoprick again in another Council An. 705. by King Osred his will and consent About the year of our Lord 924. Elfred a Nobleman who opposed Aethelstans title and election to the Crown though in vain intended to seise upon him at Winchester and put out his eyes but his Treason being discovered he was apprehended and sent to Rome to purge himself thereof by Oath where he abjuring the fact before the Altar of St. Peter in the presence of Pope John the 10th fell down suddenly to the ground as dead and being thereupon carried away thence to the English School he there expired within 3 dayes after The Pope acquainting the King therewith and craving his advice what to do with him and whether he should have Christian burial the King thereupon
preserve to the King and his heirs for ever and Archbishop Becket amongst the rest The 11 Article was this Archiepiscopi Episcopi universae personae regni qui de rege tenent in capite habent possessiones suas de Domino Rege sicut Baroniam c. sicuâ— Barones caeteri debent interesse judiciis curiae Regis to wiâ— of his Court of Parliament as the protestation of the Archbishop and Prelates in the Parliament of 11 R. 2. rot Patl. n. 9.11 resolves it cum Baronibus quousque perveniatur in judicio ad diminutionem Membrorum vel ad mortem An unanswerable authority thaâ— rhe Barons and Peers in Parliament had antiently in the reigns of Henry the 1. and 2. and long before a judicial power even in criminal as well as canonical causes deserving loss of Member or death and that as well in cases of Commons as Peers It is observable that though according to this Article the Bishops in those days did not pronounce sentence nor were not actually present at the giving of judgement by the other Barons in cases of blood yet they took upon them the name of Barons and were present on that account at all the debates in criminal causes and gave their votes therein in our Parliamentary Councils absenting themselves only from the sentence and execution for which Petrus Blesensis Archdeacon of Bath under king Henry the 2. thus justly censures them Quidam Episcopi Regum munificentias eleemosinas antiquorum abusive BARONIAS REGALIA VOCANT in occasione turpissimae servitutis SEIPSOS BARONES appellant vereor ne de illis quereletur Dominus dicat Ipsi regnaverunt et non ex me Principes extiterunt ego non cognovi Scias te assumpsisse Pastoris officium NON BARONES Cerâ—e Joseph in Aegypto patrem suum fratres instruxit ut dicerent Pharoni viri pastores sumus Maluit eos profiteri Pastoris officium quam PRINCIPIS aut BARONIS c. Vacuum a secularibus oportet esse animum divinae servituâ—is obsequio consecratum c. Illud coelestem exasperat iram et plerisque discrimâ—n aeternae damnationis accumulat quod quidam Principes Sacerdotum et Seniores populi licet non dictent judicia sanguinis eadem tamen tractant disputando ac disceptando de illis seque adeo immunes a culpa reputant quod mortis aut truncationis Membrorum judicium decernentes a pronuntiatione duntaxat et executione paenalis sententiae se absentant The very words of this Article of Clarindon Sed quid hac simulatione perniciosius est Nunquid discutere diffinire licitum est quod pronunciare non licet Certe Saul de morte David multiplici machinatione tractabat let others observe it ut malitiam suam sub umbra innocentiae palliaret dicebat Non sit manus mea in eum sed sit super eum manus Philistinorum Sane quantum haec dissimulatio ipsum excusabat apud homines tantum apud Deum eundem damnabilius accusabat Expressa fimilitudinis forma in CONSITORIO illo in quo Christus ad mortem damnatus est Pharisaei Scribae dicebant Nobis non licet interficere quemquam cumque tamen clamarent dicentes crucifige sententiam in eo occisionis cruentae malignitate dictabant Quem occidebant gladio linguae publice protestabantur sibi occidere non licere eorumque iniquitas eo ipso detestabilior erat quia ut evaderent humanum judicium eam simulatione innocentiae occultebant Animabus praelatus es non corporibus nihil Praelato commune est cum Pilato Christi villicus es Vicarius Petri nec respondere oportet Coesari de commissa tibi jurisdictione sed Christo Quidam tamen per usurpatas seculi administrationes se vinculo curiali obnoxiant quasi renunciaverint suae privilegio dignitatis calculum durioris eventus expectant These Articles of Clarindon were not only sworn to but likewise subscribed and sealed by all the Bishops except Archbishop Becket who refused to sign or set his seal unto them unlesse the Pope would first confirm them by his Bill The King hereupon sent two Embassadors to Rome unto the Pope to crave his allowance of these Laws but Becket had so dealt with the Pope before hand who knew the cause to be more his own than Beckets that he rejected the sute and withall absolved Becket and the other Bishops from the Oath of allegiance they had taken to observe them Whereupon the King being highly offended with Becket summoned a Great Parliamentary Council of the Prelates and Nobles at Northampton wherein he demanded an account of 30000 l which came to Beckets hands during his Chancellorship which he excusing and refusing punctually to answer unto the PEERS and BISHOPS condemned all his moveables to the Kings mercy After which the Lords and Peers by joynt consent adjudged him guilty of perjury for not yeelding temporal obedience to the King according to his Oath taken at the Council of Clarindon The Bishops thenceforwards openly disclaiming all obedience to him as their Archbishop The next day whiles THE BISHOPS PEERS were consulting of some further course to be taken with him Becket caused to be sung before him at the Altar The Princes set and speak against me and the Ungodly persecute me c. And forthwith taking his silver Crosier in his hands a thing strange and unheard of before entred armed therewith into the Kings presence though earnestly disswaded from it by all who wished him well wherewith the King being inraged commanded the Peers there assembled in a Parliamentary Council to sit in judgement upon him as on a Traytor or perjured person who accordingly adjudged him both a Traytor and perjured Rebel and that he should be forthwith apprehended and cast into prison as such a one and forfeit all his goods and temporalties The Earls of Cornwal and Leicester who SATE AS JUDGES citing him forthwith to hear his sentence pronounced he immediately appealed to the See of Rome as holding them no competent Judges Whereupon all the Prelates and Nobles reviling him with the name of Traytor and perjured person he replyed That were it not for his function he would enter the duel or combate with them in the field to acquit himself from Treason and Perjury And so speeding away from them for fear of imprisonment and disguising himself under the name and habit of Dereman fled in a small Fisher boat into Flanders Thereupon the King seised all his goods and temporalties into his hands and sent Embassadors to the Earl of Flanders the French King and Pope praying them in no wise to suffer or foster within their Dominions one that was such a notorious Traytor to him The Proceedings against this Traytor Archbishop Becket In this Magnum et solenne Concilium held at Northampton Anno 1165. being very memorable and more fully relating the manner of our Parliamentary Process in that age and the
suis consentaneis rimens sibi post praedicti Comitis purgationem gravissimas de se suscitati querelas US QUE AD ALIUD PARLIAMENTUM praefatum diem procuravit prorogandum Unde tumultu ad tempus sedato Rex proprium adivit Palatium cum gaudio Articuli vero praetactarum culparum cum suis fabricatoribus plures sunt ultra modum transgressibiles si veri essent Sed quia incredibiles sunt nulla fulciuntur veritate ne mendaciorum scriptor dicerer aâ—t fabricator eos huic paginae non arbitror annotari Jmo qui eos siâ—ienter audire desiderat a mendacâ— mondaâ—iâ— exâ—auriet me in noc relinquens alium relatorem exquirat Anno 1261. Prince Edward returning out of France brought William de Valentia the Kings Brother-in-law with him lately banished out of the land who could then scarce obtain any admission into it but upon this condition Ut praestito in ingressu sacramento BARONUM PROVISIONI IN OMNIBUS OBEDIRET singulis contra eum dâ—posiâ—is quaerelis et deponendis si neceâ—se fuerit responderet Eadwardus vero super vanis Regis consiliis consiliariis edoctus eisdem valde iratus sponte se patris absentavit obtutibus fideliterut perjuraverat assensit Baronibus Inquisitis itaque diligenter praedictae contentionis fautoribus et cognitis unanimiter omnes cum Eadwardo conjurarunt quod nunquam regi consentirent in uno donec quoldam non nominandos a suo amoveret consilio Addentes quod per talium pacis perturbatorum suggestiones Rex saepe decipitur in praetacta papali absolutione juramenti sui to observe the provisions of the Barons made at Oxford provisio Regi regno salutaris infirmatur Unde revelato eorum secreto nunquam Rex talium consilio intermediante suo poterit BARONAGIO prout decet consentiâ— Comâ—â—es antem Gloverniae et Leicestriae pace sunt tunc firmissima confaederati simul cum Eadwardo aliis contestantes quod aut praedictorum perturbatocum a rege removerent consorrium aut guerâ—a viâ—iniore suscitanda alterutros se darent in interitum In pursuance whereof the Barons continued in arms so long till they forced the Kings ill Counsellors from him constrained him to reconfirm and assent to their provisions made at Oxford to banish all strangers out of the Realm and to put all his Castles into their hands Anno 1264. Richard King of Romans Prince Edward the Kings eldest Son caterique BARONES OMNES ET NOBILES praedicto regi Angliae constanter sincerae fidei devotionis operibus adhaerentes in their memorable Letter and answer immediately before the battle of Lewes Simoni de Monte forti Gilberto de Clara caeterisque universis singulis perfidiae suae complicibus who accused them of giving neither good nor faithfull Counsel to the King in their Letter then sent to them write thus in order to a legal trial in the Kings Court of Parliament by their Peers De hoc autem quod falso nobis imponitis quod nec fidâ—le nec bonum consilium regi Domino vestro damus nequaquam verum dicitis Et si vos domine Simon de Monte forti vel Gileberte de Clara velitis hoc idem IN CURIA DOMINI REGIS ASSERERE parati sumus securum veniendi ad dictam CURIAM procurare conductum nostrae super hoc innocentiae veritatem vestrum sicut PERFIDORUM PRODITORVâ—M mendacium declarare per ALIOS misprinted in some Copies alium NOBILITATE ET GENERE VOBIS PARES not parem relating to that of Magna Charta c. 29. Per legale judicium PARIUM SUORUM by which Peers only are legally triable In the year of our Lord 1265 being the 49 year of Henry the 3 his reign the Earl of Leicester Simon de Montefort and sundry other of the Barons being slain and the rest of them totally routed in the Battel of Evesham by Prince Edward thereupon the King being rescued out of their hands and restored to his royal authority summoned a Parliament at Winchester on the Nativity of the blessed Virgin In which Parliament REX ET REGNI MAGNATES ORDINARVNT as Mat. Westminster relates quod diâ—iores Civitatis Londinensis in carcerom truderentur quod Cives Civitas Londinensis Nota suis antiquis Privilegiis libertatibus privaretur OB SUAM REBELLIONEM quod stipites cathenas quibus Civitas fuerat roborata de medio tollerentur PRO EO QUOD Simoni de Montiforti Comiti Leicestriae IN REGIS CONTEMPTUM ET ETIAM DAMNUM REGNI FORTITER ADHAESERANT Capitunei etiam factionis contra Regem juxta voluntatem ejus plâ—ctendi carcere manciparentur Quod totum factum est Nam potentiores Civitatis apud Castrum Windesoram Carceri fuerunt mancipaâ—i qui post modo poena pecuniaria ad summam non modicam mulctabantur Libertas fuit civibus interdicta Turris London per stipites Cathenas Civitatis fortiâ—r facta Post hoâ— aprid Westmonasterium in festo Translatioâ—is Sancti Edwardi there was another Parliament held at London summoned by this Writ yet extant on Record Henricus Dei gratia Rex Angliae c. Cum post gravia turbationum discrâ—minadudum habita in regno nostro Carissimus filius Edwardus primogenitus noster pro pace in regno nostro assecurenda et firmanda obses traditus extitisset et jam sedata Benedictus Deus turbatione praedicta super deliberatione ejusdem salubriter providenda et plena securiâ—aâ—e et tranquillitate pacis ad honoâ—em Dei utilitatem totius regni nostri firmanda et totaliter complenda ac super quibusdam aliis regni nostri negoâ—â—is quae sine Consilio vestro et aliorum Praelatorum et Magnatum nostrorum nolumus expediri cuâ— eisdem traâ—tatum nos habere oportet Vobis mandamuâ— rogantes in fide et diâ—ectione quibuâ— Nobis teneminiâ— quod omni occasione postposita negotiis aliis praetertermissiâ— ad Nos Londoniis c. Nobiscum et cum Praedictis Praelatis et Magnatibus nosâ—ris quos ibid. vâ—c râ—cimus supeâ— praemiâ—is istis tracâ—a uri et Consil impensuri Et hoc sicut Nos et honorem nostrum ac veâ—â—rum necnon et communem regni nostri tranquillitatem diligitis nullatenus omittatis The Teste of this Writ to the Bishops bears date of Winchester where the former Parliament was held Decemb. 14. the Writs to the temporal Lords Abbots and Peers bâ—ar date at Woodstock the 24 of this Month there being no lesse than 64 Abbots 36 Priors the Master of the Temple and 4 Dears of Cathedral Churches summoned thereunto besides Knights and Burgesses now first summoned to that Parliament to settle peace most of them being VOLUNTARIE SUMMONITI and not bound of right to come not holding of the King by Barony In this Parl. by judgement of the King and Lords SENTENTIA EXHAEREDATIONIS IN REGIS ADVERSARIOS FEREBATUR '
Clergy being thus put out of the Kings Protection and thereby disabled to sue or sit in Parliament were secluded the Parliament house the King holding the Parliament with the Temporal Lords and Commons alone and making valid good Acts and Ordinances therein in this case without the Clergy as Bishop Jewel M. Crompton Dr. Bilson and others affirm which Dr. Standish averred he might lawfully doe before the Kings Council and a Committee of Lords and Commons in the Parliament of 7 H. 8. Keilwayes Reports f. 184. b. Sir Edward Cooke being of the selfâ—ame opinion in his 4 Institutes p. 25. citing other Presidents of this kind to prove that Acts may be made without the Bishops as 15 E. 2. Exilium Hugonis le Dispenser 3 Rich. 2. c. 3.7 Rich. 2. c. 12.11 R. 2. n. 9 10 11. 21 R. 2. n. 9 10. 1 H. 5. c. 7.6 H. 6. n. 27. Peter de Gaverston a deâ— oiâ— lascivious person for his misdemeanours and corrupting Prince Edward with whom he was educated from his infancy in the year 1306 in a Parliament then held by King Edw. the 1. assensu Communi Procerum fuerat exilio penpetuo condemnâ—tus This King was no sooner deaâ— and the Crown descending to King Edward the 2. but he presently recalled Gaverston from his exile against the will of the Lords made him Earl of Cornwall and gave him the Isle of Man An. 1307. the very first year of his reign He being more high in the Kings favoâ—r more glorious in his apparel and insolent in his behaviour than any other thereupon Anno 1309. Regni Proceres et Nobiliores videnâ—es se contemni Petrum de Gaveâ—on cunctis anteferri accessâ—runt ad Regem humiliter rogantes ut Baronum suorum vellet consiliis tractare Regni negotia quibus a pericuâ— sibi imminentibus non solum cautior sed tâ—tior esse possit Quorum votis facie tenus Rex annuitâ— Parliamentum Londini instituâ—t fiori ad quod omnes qui interesse debebant mark it venire mandavit The Parliament there assembling Anno 1310. Decreto Parliamenti ad Baronum instantiam Petrus deâ— Gaverâ—on in Hyberniam Exilio relegatur No sooner was the Parliament ended but the King caused special writs to be written and sealed in his own presence for recalling Gaverston from his exile and restoring him to his Lands which writs he took into his own hands for a time and then sent them to the Sheriffs with special command to see them duly executed under grievous penalties In these Writs he recites that Mounsieur Piers de Gaverston Earl of Cornwal was of late exiled out of ouâ— Realm against the Laws and Vsages of the said Realm which he was bound to keep and maintain by the Oath he took at his Coronation For which cause he did out of that common right and justice which was due to all his Subjects recall and restore him without the Lords against their wills as the writs in the Clause Rolls inform us Thomas of Walsingham thus relates the manner of it and ill consequence thereof to Gaverstons ruine in these words Soluto Parliamento cunctis gaudenter ad sua disced nâ—ibus rex remansit tristis cogitans disquirens cum privato suo concilio qualiter posset ipsum ab exilio revocare Suggestumque fuit 〈◊〉 qâ—od si sororeiâ— Comitis Gloverniae qui pro â—unc 〈◊〉 jâ—venis â—oâ—i 〈◊〉 sub tuâ— Regis praeâ—aâ—o Pet◠〈…〉 coâ—ugeâ— posset ipsum intrepide revocare 〈◊〉 hiâ—s audicis cum omni festinatione missis nuneilâ—â—â—cersivit eâ—m inter ipsum sororem Comicis fecit celebrati nuptiae licet multum Gomiâ—i displicerent Eâ—iâ—de Petrus superbiens plus solito regni nobiles vilipendit subsannabat Proceres mediocresque despexir Et quia Rex permiserat sibi facultaâ—em pene facienâ—i quâ—e vellet quantum ad ea quae respiciebant personam regiam caepit sicut prius thesaurum regis colligere negotiatoribus ultra mariniâ— accommo lare non ad usus quidem regios sed suos proprios Qui in tantum expilavit regem ut non haberet unde solveret expensas solitas domus suae Regina vero tantum rebus necessariis arctabâ—tur ut regi Franciae patri suo lachrymabiliter quereretur honore debito se privatam Barones igitur considerantes quod eorum tollerantia Petro malignandi praestabat auâ—atiam domino regi denunciaverunt assensu communi ut vel dictum Petrum a sua propelleret comitiva articulosque provisos effectui manciparet vel ipsâ— certe in eum tanquam perjurum insurgerent Durus videbatur hic sermo regi quia Petro carere nescivit sed plus periculi cernebat emergere si petitionibus Proceâ—um non obâ—emperaret Petrus igitur abjurat regnum regis plus â—ermissione quam beneplacito addita a Baronibus conditions quod si de caetero posset in veniri in Anglia vel aliqua terra regi subiecta caperetur et velut hostis publicâ—s damnaretur Igitur sub praemura conditione daâ—o sibi conductu Angliae regnum Iâ—gons desernit Franciam est ingressus Quo adito Rex Francorum jussit suis ut eum caperent si quo modo possent diligenteâ— cusâ—odirent nâ— direâ— in Angliam Proceres sicut prius turbaret filtâ—m Petrus de â—is praemonitus fugit in Flandâ—iam ibi quaeâ—iturus requiem nec invenit Tandem cum suis consortibus aâ—ienigenis redivit in Angliam de amicitra confisus Comitis Gloverniae cujus sororem duxerat in uxorem Parum ante festum natalis domini regis se presentavit obâ—utibus qui prae gaudio sui adventus juramenta pacta promissa negligens tanquam coeleste munus hilariter suscepit eum secum detinuit cum familia sua tota Anno 1311. post natale rumore vulgato de Petri reversione regni Magnates plebei conturbati sunt Qui necessitate ducti elegerunt sibi Thomam de Lancastria in ducem et defensorem ut periculis consulerent malis futuris Nobiliores vero regni de communis deâ—reti sententia miserunt honorabiles domino regi nuncios exorantes ut vel dictum Petrum eis traderet vel ut ordinatum fuerat ipsum regnum evacuare juberet Rex vero sinistro ductus consilio Baronum supplicationes parvipendens ab Eboraco recessit ad Novum Castrum Magnates proinde sub omni celeritate ad Novum Castrum iter arripuere Quod cum Rex audisset quasi proscriptus aut exul fugit cum dicto Petro Tynemutham et inde Scardeburgiam ubi habebatur castrum regale ubi praecepit Castellanis ut custodiam Petri susciperent castellum victualibus instaurarent rege se alias transferente nec opem ferre valente quin caperetur reduceretur usque ad villam de Dadington Ubi Comes Warwici Guido de bello campo fecit eum decollari tanquam legum regni subversorem publicum proditorem
son serement Auxint pur lour malveis covetise et par poiar roial a eux acroche ne susterent nostre seignor le roy doier ne droit fair ' as grandes de la terre sur la demonstrance que ilz fesoient a luy pur luy et pur eux de la disheritance de la corone et de eux touchant les terres que furent as templers Et issint par yoiar roial a eux accroche ont ils mesne nostre seignour le roy son counseil et ses prelatz que des choses touchant eux ou lour alies ount emprise et embrace par eux que droit ne poet estre fait forsquea lour volunte et a dammage et a dishonour de nostre dit seigneur et peryl de son serement et dishinheritaunce et destruction de plusours autres grandes du people de son royalme Et auxint de eslues as evesque abbes et priours que devoient de droit estre resceux de nostre seignour le roy lou ils sont en due maner estues ne poient approcher a nostre seignour le roy ne one luy parler de querer sa grace tanque ils avoient fait sine et fret Sir Hugh le fitz a sa volunte Ne nul que eust grant aquere de nostre seignour le roy ne poet a nul grant atteinder avantque ilz avoient faitfine a luy Estre ceo lou John de Lacchelegh et autres fuerent agardes a la prisone pur un trespas que ils avoient fait a la dame de Merk a damag ' de la dist dame de M. Centz marcz dont ils furent atteintz devant mon Sir Robert de Middyngle er ses compaignons Justices assignes a oier et terminer cel temps cel trespas et le dit John feust en la prison de Colcestre par la gard suisdit Sir Hugh le fitz accrochantz a luy roial poiar amesna le diâ— Iohn hors de la prison contre leye de la teâ—re eius que il avoir fait gree a la dit dame des damages avantditz et luy fist vender sa terre a luy et â—ever sur ceo un fine Claus 16 E. 2. m. 5. There is this memorable case recorded The King being at Bishops Thorpe near York held a Council with his Lords divers of which are there named concerning the Truce with Scotland inter quâ—s Nobiles Hen. de Bellamont Baro de Magno et secreto Concillo ipsi Domino Regi juratus vocatus fuit ibidem venit Being there preâ—ed by the King to give his advice herein quodam motu excessius animo quasi irreverents dicto Domino Regi saepe respondit quod sibi consulere noluit in hac parte Whereupon the King commanded him thence Upon which he went out of the Council and said He had rather be absent than there Upon which contemptuous carriage and words consideration being had by the Lords and Council by all the Iudges Barons of the Exchequer being there amongst others to wit as assistants in regard he was sworn and had taken the Oath of a privy Counsellor to the King being called in again Committitur Scalae Prisonae pro contemptu inobedientia praedictis After which he was let to mainprise and a truce being there concluded with the Scots thereupon the writs ad arma c. were revoked that were formerly iâ—sued to the Tenants by Escuage and Knights service In the Parliament held at Winchester Ann. 2 E. 3. Edmund Earl of Kent the Kings Uncle by the instigation and power of Roger Mortimer Earl of March was arrested impeached condemned and executâ—d for conspiring and attempting to rescue his Brother King Edward the 2. and saying he was alive after the time he was murdered which Treason was said to be manifestly proved by Letters found about him and by his own voluntary confession before the Coroner recorded in Walsingham and the Clause Roll of 4 E. 3. which Letters and confession were openly read in Parliament pur que oue le assent des Countz Barons et autres Grantz et Nobles â—n mesme le Parliament par agard dicelle estoiet le dit Count come Nostre Trayture et Traiture de Royalm adjudge a la mort as the King himself recites in his Writs and Letters to all Sherifs Claus 4 E. 3. m. 16. dorso Demorte Edmundi nuper Comitis Cantii publicanda commanding them to publish this as the cause and manner of his death and to arrest all those that said King Edward the 2. was alive or that the said Earl of Kent was otherwise put to death So that by this record being a Peer he was adjudged to death only by the Earls Barons Great men and Nobles in Parliament without the Commons not named in this record And therefore the Kings Letter to the Pope in 4 E. 3. relating the proceedings and judgement against the Earl in these words if truly recited Comitibus Magnatibus Baronibus aliis de COMMUNITATE dicti regni ad PARLIAMENTUM illud congregatis injunximus ut super hiis DISCERNERENT ET JUDICARENT quid rationi justitiae conveni et habentes prae oculis solum deum qui eum CONCORDI ET UNANIMI SENTENTIA tanquam reum criminis laesae Majestatis ADJUDICARENT ejus sententiae c. Objected by Sir Robert Cotton to prove the Commons to have a share and voice in judicatures in Parliament and that not in the case of a Commoner but this great Peer must needs be understood of an Attainder by Bill to confirm the judgement formerly given against him by the Earls Barons and Lords alone in this Parliament as in the case of the two Spencers not long before not of his original sentence given only by the Lords Barons and other Great men and Nobles as the Clause Roll and all Writs to the Sheriffs record Which the Parliament Roll in 4 E. 3. n. 11 12. doth likewise intimate where Earl Edmonds eldest Son and Margaret Countesse of this Earl of Kent by their Petitions prayed that THE RECORD or Bill against the said Earl might be reversed for errors therein appearing and he to be restored to blood and lands of his Father and she to her Dower which was granted and ordered by Parliament saying to the King the wardship of the same during his minority and thereupon it was further enacted That no Peer of the land nor other persons should be impeached for the death of the Earl of Kent but only the said Mortimer and 3 more then impeached and condemned of High Treason for his murder as well of the deposed Kings and that his Countess should have her Dower as Claus 5 E. 3. part 1. m. 24. assures us In the Parliament of 4 E. 3. rot Parl. n. 14. Edward the eldest Son of Edward Earl of Arundel condemned and beheaded without any legal trial by his
personâ— that would complain against him but that the Commons would not do but prayed he might answer their charge in general whereupon he answered every of the Charges against him and that very fully in open Parliament before the LORDS Yet notwithstanding the Bishops and Lords gave Iudgement against him in full Parliament that for his ill Counsel and Government against the profit of the King and Realm and namely for divers Chevisances to the Kings loss for procuring grants to the destruction of the Staple and Town of Calice and for divers impositions laid upon wools he should be committed to prison under the custody of the Marshal and make fine and ransom at the Kings pleasure Whereupon the Commons further required That he might lose all his Offices and be no longer of the Kings Council which the King granted After which this Lord found certain Lords and others of quality whose names are mentioned in a Schedule annexed to the Parliament roll to be his Mainpernors for the forth-comming of his body during the Parliament Upon which the Marshal offered him to be at large In the same Parliament 50 E. 3. rot Parl. n. 34. John Lord Nevil was accused that during the time he was of the Kings privy Council he bought certain debts due by the King to the Lady Ravensham and Simon Love a Merchant at under values and for receiving of the King more wages and for a longer time than was due for one hundred Souldiers in Britain Upon which he confessed he received 95 l. of the Lady for the obtaining of her debt only our of her meer good will which was not disproved The Charge touching Love he wholly denied Love thereupon being brought into the Parliament before the Lords wholly excuseth the Lord Nevil But because Love the day before had confessed the contrary unto two of the Knights of the Parliament he was committed to Prison by the LORDS To the receiving of Wages he fully cleared himself Notwithstanding the LORDS GAVE JUDGEMENT of imprisonment and of lâ—sâ— of Lands Goods and Offices against him and that he should make restituâ— of the 95 l. to the Ladies Executors These Judgement◠〈◊〉 the Commons importunity were so unjust that in the very next Parliament of 51 E. 3. rot Parl. n. 75. upon the prayer of certain Bishops Lords and the Commons themselves the Lord Latymer by the Kings grant and royal assent and the Authority of the Lords was restored to his Offices and Privy Counsellorship whereof he was deprived by them this Parliament upon untrue Suggestions Such partiality and injustice is there many times even in Parliaments themselves out of malice faction or affection In the Parliament of 7 R. 2. holden at Westminster the Monday next before the feast of All Saints rot Parl. n. 13.15 to 24. Ralph Nevil the martial Bishop of Norwich was accused in Parliament for not serving the King in his wars in Flanders for so long a time and with so many men and with a sufficient General as he promised whereby the Voyage was lost to the Kings dishonour and damage and for selling the Castle of Gravelin to the French for money which the Chancellor in open Parliament declared against him The Bishop answered thereunto in person albeit in this case he said he might have Counsel with this Protestation that he might at all times avoyd or amend his answer To which answer of his the Chancellor replied In conclusion upon debate THE KING AND LORDS resolved his answer to be no sufficient excuse of what was charged against him Whereupon the Chancellor by ASSENT OF THE LORDS concluded That although the King might pass on the Bishop as a Temporal Lord by reason he took upon him to serve him as a Souldier and had the Sword carried before him contrary to his profession yet for that time in regard he was a Bishop the King would spare to lay hands on or imprison his person as he might doe And therefore they ADJUDGED him to make fine and ransom to the King at his pleasure whereunto he should be compelled by the seisure of his temporalties And it was commanded that from thence the Sword should no more be carried before him In the same Parliament held this year about the feast of St. Martin in quo prout jam a multis consuevit temporibus nihil dignum memoria fuit actum praeter illud quod sedulo actitabatur as now in our age extortio videlicet pecuniae de clero et communi plebe ad sustentationem militibus werrae regalis Nondum Parliamentum finitum fuerat cum nova de partibus borealibus sunt allata de captione Castelli de Berwico per Scotos cujus custodiam Comes Northumbriae domibus Henricus Percey avito jure possedit Scoti namque mediante pecunia de quodam qui secundarie castri custodiam tunc habebat introitus castelli dolosenacti sunt Factum est ergo Duce procurante Johanne ut dicitur ut pro perditione dicti Castelli regalis Comeâ— Iudicium qui aderani Optimatum et regis sententiam daâ—ationis exciperet in eum publice promulgatam Cujus executionis vindicta per regem postea cito relaxâ—ta fuit quamvis id Duci ut dicitur displiceret Acta sunt haec 14 die Decembris in eodem Parliamento non obstante quod idem Comes ad dictum Parliamentum vocatâ—s fuerat per breve regium et ad custodiam suae patriae morari maluisset Haec ideirâ—o causa inter ipsum Ducem er Comitem postea irae et odii â—omitem ministravit At the Parliament held at Salisbury an Irish Frier Carmelite delivered a Schedule to the King conteining divers treacherous plots and Treasons against him by the Duke of Lancaster that he had resolved sodainly to kill oppress the King and seise upon the Kingdom setting down the time place and all other circumstances taking his Oath upon the Sacrament of Christs body that every word contained in that Schedule was true advising the King not to believe the Dukes excuses nor to deferr his judgement lest he should raise forces against him to effect his design or be deceitfully reconciled to him The King hereupon being young NON DOMINOS NON PARES REGNI super tantis negotiis ut disecrâ—erant qui◠〈…〉 coâ—sulait but two Câ—eras of his Chappel his accustomed Counsellors whiles the King and they were privately debating the business the Duke came in unto them whom the King beholding with a stern countenance and not receiving him with that honour as formerly he suspecting the King conceived something in his mind against him withdrew himself But by the Chaplains advice he was called in again and the Schedule delivered him to read Which having read he said with a great sign to the King Heu Domine mi cur fidem datis talibus dela toribus Cur de mea persona talia opinamini Nonne sum aâ—unculus vester Nonne tutor extiti Nonne post vos principalis
Vice-Chamberlain before the King and Lords of divers offences against the King who taking the accusation to be good because of the Bishops order and that he was of the kingâ— linage pardoned the said Bishop all his misprisions done against his person and reconciled the Bishop and Sir Thomas one to another And n. 30 31. all the Lords Temporal whose names are there recorded being 25. in number by assent of the King declared and ADJUDGED Thomas Holland late Earl of Kent John Holland late Earl of Huntingdon John Mountague late Earl of Salisbury Thomas le Despencer Sir Ralph Lumley Knight and divers others who were for their Rebellions and Treasons in levying war against the King taken slain or beheaded by certain of the Kings Subjects to be Traytors and that they should forfeit all such Lands as they had in fee the 5. of January the first year of the King or at any time after with all their goods and chattels The Record is Toutz les Seigneurs temporelz esteantz en Parlement per ussent du Roy declarerent et adjuggerent les ditz Thomas c. pur Trayteurs pur la leve de Guerre encountre lour Seignior le Roy nient obstant qils furent mortz sur le dâ—t leve de guerre sanz process de ley Lo here the Lords alone by the Kings assent declare and adjudge what is Treason both in the case of Lords and Commoners too and â—taint and give Judgement against them both without the Commons after their deaths without legal trial In the Parliament of 5 H. 4. rot Parl. n. 11 12 13 14. On Friday the 18 of February the Earl of Northumberland came before the King Lords and Commons in Parliament and by his Petition to the King acknowledged that he had done against his Lawes and allegeance and especially for gathering power giving of Liveries for which he put himself upon the Kings grace and prayed pardon the rather for that upon the Kings Letters he yielded himself and came to the King at York whereas he might have kept himself away Which Petition by the Kings command was delivered to the Justices to be examined and to have their counsel and advice therein Whereupon the LORDS made a Protestation que le Juggement appentient a â—ux tout soulement THAT THE JUDGEMENT APPERTAINED ONLY TO THEM And after the said Petition being read and considered before the King and the said Lords as Peers of Parliament aus queux teils juggemeâ—t apperteignent de deoit to whom such Iudgements appertained of right having had by the Kings command competent deliberation thereupon and having also heard and considered as well the Statute made in the 25. year of King Edward the Kings Grand father that now is concerning the Declaration of Treason as the Statutes of Liveries made in this Kings reign ADJUDGED That that which was done by the said Earl contained within his Petition was neither Treason nor Felony but Trespas for which the said Earl ought to make fine and ransom at the will of the King Whereupon the said Earl most humbly thanked our Lord the King and the said Lords his Peers of Parliament for their rightfull judgement and the Commoners for their good affections and dâ—ligence used and shewen in this behalf And the said Earl further prayed the King that in assurance of these matters to remove all jealousies and evil suspitions that he might be sworn a new in the presence of the King and of the Lords and Commons in Parliament and the said Earl took an Oath upon the Crosier of the Archbishop of Canterbury to be a faithfull and loyal liege to our Lord the King the Prince his Son and to the heirs of his body inheritable to the Crown according to the Laws of England Whereupon the king out of his grace pardoned him his fine and ransom for the trespass aforesaid After which num 17. the Lords Spiritual and Temporal humbly thanked the King sitting in his royal Throne in the white Chamber for his grace and pardon to the said Earl of his fine and ransom and likewise the Commons thankâ— the Lords Spiritual and Temporal for the good and just Iudgement they had given as Peers of Parliament to the said Earl From this memorable Record I shall observe First that though this Declaration of this Earls case was made by his Petition in the presence of the King Lords and Commons in Parliament according to the Statute of 25 E. 3. yet the Lords only by Protestation in presence of the King and Commons claimed to be the sole Iudges of it as Peers of Parliament and belonging to them OF RIGHT Secondly That this claim of theirs in this case was acknowledged and submitted to both by the King and Commons and thereupon the Lords only after serious consideration of the case and Statutes whereon it depended gave the definitive sentence and judgement in this case that it was neither Treason nor Felony but Trespass only c. Thirdly That the Earl thanked the King only for his grace the Lords for their just Iudgement and the Commons only for their good hearts and diligence having no share in the judgement though given by the Lords both in the Kings and their presence and that the Commons themselves returned special thanks to the Lords Spiritual and Temporal in Parliament for their good and just judgement Fourthly That this judgement of the Lordr only was final and conclusive both to the King and Commons who acquiesced in it In the Parliament of 2 H. 5. rot Parl. num 13 14. Thomas Mountague Earl of Salisbury son and heir of John Mountague Earl of Salisbury exhibited his petition in Parliament to reverse a judgement given against his said father in the Parliament at Westminster in the second year of King Henry the fourth rot Parl. n. 30 31. forecited wherein amongst others he was attainted of Treason by judgement of all the Temporal Lords in Parliament and thereupon he exhibited certain reversals of Judgements given in Parliament as making on his behalf to the Lords consideration reversed for some errors assigned in those judgements to wit one judgement given against Thomas heretofore Earl of Lancaster before King Edward the second at Pomfract the Monday before the feast of the Annunciation in the fifteenth year of his reign and another Judgement against Roger de Mortymer late Earl of March in the Parliament of King Edward the third the Monday after the feast of St. Katherine in the fourth year of his reign at Westminster Which Judgements being distinctly and openly readâ— and fully understood It seemed to the King and Lords that the case of the death and execution of the said John late Earl of Sarum and of the judgement aforesaid against him given is not nor was like to the case of the executing of the said Th. heretofore Earl of Lancaster nor to the case of the putting to death of Roger Earl of March nor to any judgement given against
inform us In the Parliament of 2. Caroli the Duke of Buckingham impeached the Earl of Bristol and the Earl of Bristol impeached this Duke before the Lords in sundry Articles for divers misdemeanours touching the Spanish match King Prince to seduce him in his religion praying judgment of the Lords thereupon against each other In the Parliament of 3. Caroli the Duke of Buckingham was accused and Impeached by the Commons before the Lords for sundry high Misdemeanors and the Parliament thereupon dissolved to prevent his censure In this very Parliament of King Charls now sitting Thomas Earl of Strafford was accused and impeached by the House of Commons of High Treason and other misdemeanors comprised in sundry Articles which they transmitted â—o the House of Lords desiring that he might be put to answer them and such proceedings examination trial and judgement thereupon had and given against him by the Lords as is agreeable to Law and Justice Hereupon he was openly tried in Westminster Hall before the House of Lords there sitting as his Judges where the House of Commons prosecuted and gave in Evidence against him sundry dayes and in conclusion demanded the Lords to give Iudgement against him in the Iudicial way After which they proceeded against him by way of Bill not to decline their Lordships Iustice in a Iudicial way but to husband time by preventing some doubts and as the speediest and soonest way Upon the passing of which Bill he was beheaded and executed as a Traytor On the 26 of February 1640. William Laud Archbishop of Canterbury was accused and impeached of High Treason by the House of Commons of 14. Articles then transmitted by them to the House of Lord The first whereof was this That he had trayterously endeavoured to subvert the fundamental Laws and Government of the Realm and instead thereof to introduce an Arbitrary and Tyrannical Government against Law And the last of them this That he had laboured to subvert the rights of Parliament and the ancient Course of Parliamentary proceeding which the New-modellers of our Parliaments more guilty hereof by many degrees than he may do well to consider Upon which they prayed from the Lords such proceedings examination trial and Iudgement against him as is agreeable to Law and Justice Upon these Articles he was brought to a publike Trial in the Lords House the 12. of March 1643. and after 17. whole dayes spent in his meer Trial and proof of the Charge against him and his defence thereto morning and evening and several other dayes spent in the hearing of him and his Council and the Commons Reply touching his Charge and the matters of Law whether the Charge prâ— against him amounted to High Treason the Lords upon most mature deliberation voted him Guilty of all the Articles and matters of fact charged against him and also of High Treason and thereupon passed an Ordinance for his Attainder by vertue whereof he was beheaded as a Traytor on Tower-Hill January 10. 1644. To these I might add the seveeal Articles of Impeachment transmitted by the House of Commons this Parliament to the Lords against Matthew Wren Bishop of Norwich the 20. of July 1641. against William Pierce Bishop of Bath and Wells and against the Bishops of Winchester Coventry and Litchfield Glocester Chichester Exeter St. Asaph Hereford Ely Bangor Bristol Rochester Peterborough and Landaffe August 4. 1641. requiring such proceedings from the Lords against them as to Law and Justice shall appertain All which are a superabundant impregnable Evidence of the Lords inherent Judicial power and right of Judicature in our English Parliaments even by the Commons House own Impeachments and acknowledgements against the Levellers pretences to the contrary By all these forecited presidents it is most apparent 1. That the King and Lords in our Parliaments in all ages both before and since the Commons admission to sit and vote in Parliaments have been the sole Judges of Ecclesiastical Peers and Lords in all criminal cases without the Commons 2ly That the Lords and Peers of the Realm except only in case of appealâ— both in and out of Parliament are triable only by their Peers And therefore the Trial condemnation and execution of any of them by Marshal Law or now misnamed High Courts of Justice by Commoners and others who are not their Peers is most illegal unjust and nought else but murther as the Parliaments of 1 H. 4. rot Parl. n. 45. of 1 E. 4. rot Parl. n. 18. resolve and as it was adjudged in the case of Thomas Earl of Lancaster Paâ—ch 39 E. 3. Coram Rege Rot. 92. Wiâ— Cooks 3. Institutes p. 52 53. Secondly The next and main question now conâ—roverted will be Whether the King House of Peers have any lawfull or sole power of Judicature in and over the persons of the Commons of England as well as over Peers in criminal causes misdemeanours offences or breaches of their Parliamentary privileges so farr as to fine imprison censure judge or condemn them in any kind without the House of Commons concurrent vote or judicature This the ignorant sottish Levellers Sectaries seduced by their blind guides John Lilburn and Overton peremptorily deny the contrary whereof I shall here infallibly make good to their perpetual shame and refutation by unanswerable Reasons and presidents in all ages 1. I have already manifested That the Parliament being the supremest Court of Judicature in the Realm must consequently have a lawfull Jurisdiction over all persons and members of the Realm whether Spiritual or Temporal Lords or Commons in all criminal and civil Causes proper for Parliaments to judge or punish That this power of judicature was originally and primitively vested in the King and Lords alone before there were any Knights Citizens Burgesses or Commons summoned to our Parliaments as is evident by the antient writers Glanvil Bracton Fleta Horn the Parliament of Clarindon Anno. 1164. and other forecited authorities and never transferred by them to the House of Commons upon or after their admission into our Parliaments but remaining intirely in the King and Lords as at first as the whole House of Commons acknowledge upon record 1 H. 4. rot parl n. 79. Therefore they may lawfully exercise this their judicial power and jurisdiction over the Commoners of England in all such causes now and hereafter and that of right as this record resolves they may do in positive terms 2ly Our Histories Law-books and Records agree that in ancient times our Earls who were called Comites or Counts from the word County had the chief Government and Rule of most of the Counties of this Realm under our King and that they and the Barons were the proper Judges of the Common people both in criminal and civil Causes in the Tourns County-Courts even by vertue of their Dignities and Offices as our Sheriffs are now in which Courts they did instruct the people in the Laws of the Land and administer Justice
against Sir Michael de la Pool Knight Lord Chancellor of England first before the Commons and afterward before the Lords which was granted Then he accused him BEFORE THE LORDS for bribery and injustice and that he entered into a bond of 10 l. to Iohn Ottard a Clerk to the said Chancellor which he was to give for his good success in the business in part of payment whereof he brought Herring and Sturgeon to Ottard and yet was delayed and could have no justice at the Chancellors hands Upon hearing the cause and examining witnesses upon Oath before THE LORDS the Chancellor was cleared The Chancellor thereupon required reparation for so great a slander the Lords being then troubled with other weighty matters let the Fishmonger to Bail and referred the matter to be ordered by the Judges who upon hearing the whole matter condemned Cavendish in three thousand marks for his slanderous complaint against the said Chancellor and adjudged him to prison till he had paid the same to the Chancellor and made fine and ransom to the King also which the Lords confirmed In the Parliament of 8 R. 2. n. 12. Walter Sybell of London was arrested and brought into the Parliament before the Lords at the sute of Robert de Veer Earl of Oxford for slandering him to the Duke of Lancaster and other Nobles for maintenance Walter denied not but that he said that certain there named recovered against him the said Walter and that by maintenance of the said Earl as he thought The Earl there present protested himself to be innocent and put himself upon the trial Walter thereupon was committed to Prison by the Lords and the next day he submitted himself and desired the Lords to be a mean for him saying he could not accuse him whereupon THE LORDS CONVICTED and FINED HIM FIVE HUNDRED MARKS TO THE SAID EARL for the which and for his fine and ransom to the King he was committed to prison BY THE LORDS A direct case in point By these two last Presidents of the Lords â—ining and imprisoning Cavendish and Syber two Commoners in Parliament for their standers and false accusacions only of two particular Peers and Members of their house it is most apparent the Lords now may most justly not only imprison but likewise fine both Lilburn and Overion for their most scandalous Libels against all the Members just Privileges Judicatory and Authority of the whole House of Peers which they have contemned vilisied oppugned and libelled against in the highest degree and most scurrillously abused reviled in sundry seditious Pamphlets to incite both the Army and whole Commonalty against them In the Parliament of 11 R. 2. the Duke of Glocester and other Lords came to London with great forces to secure themselves and remove the kings ill Counsellors and bring them to judgement whereupon the King for fear securing himself in the Tower of London and refusing to come to them at Westminster contrary to his faithfull promise the day before they sent him this threatning Message nisi venire maturaret juxta condictum quod eligerent alium sibi Regem qui vellet et deberet obtemperare consiliis Dominorum Wherewith being terrified he came unto them the next day Cui dixerunt PROCERES pro honore suo regni commodo oporterâ—â— ut Proditores susurrones adulatores et male fici detractores juratores à suo Palatio et Comitive etiam eliminarentur Whereupon they banished sundry Lords Bishops Clergy-men Knights and Ladies from the Court and imprisoned many other Knights Esquires and Lawyers to answer their offences in Parliament The first man proceeded against in Parliament was the Chief Justice Tresylian whom the Lords presently adjudged to be drawn and hanged The like Iuegement the Lords gave against Sir Nicholas Brambre Knight Sir Iohn Salisbury Sir Iames Burwâ—yes Iohn Beauchamp Iohn Blakes who were all drawn and hanged accordingly as Trayâ—ers one after another and Simon Burly beheaded after them by like judgement notwithstanding the Kings and Earl of Derbies intercessions for him to the Lords After their Execution Robert Belknapâ— John Holâ— Roger Fulthorp and William Burgh Justices were banished by the Lords sentence and their lands and chattels confiscated out of which they allowed them only a small annual pension to sustain their lives After which these Judgments against them were confirmed by Acts of Attainder as you may read in the Statutes at large of 11 R. 2. where their Crimes and Treasons are specified in Cokes 3 Institutes c. 2. p. 22 23. and in Knyghton Holinshed Fabian Speed Trussel with other Historians In the Parliament of 13 R. 2. n. 12. Upon complaint of the Bishop Dean and Chapter of Lincoln against the Mayor and Bayliffs thereof for injustice in keeping them from their rights and rents by reason of the franchises granted them which they abused Writs were sent to the Mayor and Baylifs to appear at a certain day before the Lords and to have full authority from the whole Comonalty to abide their determination therein At which day the Mayor and Bayliffs appearing in proper person for that they brought not full power with them from the said Commonalty they were anâ— goâ— by the Lords to be in contempt and so were the Mayor and Bayliffs of Cambridge for the self same cause this very Parliment n. 14. In the Parliament of 15 R. 2. n. 16. The Prior of Holland in Lancashire complained of a great riot done by Henry Treble John Greenboâ— and sundry others for entring into the Parsonage of Whitwâ—rke in Leicestershire thereupon John de Ellingham Serjeant at Armes by vertue of a Commission to him directed brought the said Treble and Greenbow the principle malefactors into the Parliament before the Lords who upon 〈◊〉 confessed the whole matter and were therefore committed to the Fleaâ— there to remain at the Kings pleasure after which they made a fine in the Chancery agreed with the Prior and found sureties for the Good behaviour whereupon they were dismissed The same Parliament n. 19. Sir Will. Bryan was by the King with the assent of the Lords committed prisoner to the lower during the Kings will and pleasure for purchasing a Bull from Rome to the Archbishops of Canterbury and York to excommunicate all such who had broken up his house and taken away divers Letters Privileges and Charters which Bull was adjudged prejudicial to the King his Councâ—l and in derogation of the Law Num. 20. Thomas Harding was committed to the Fleet by the King and Lords assent there to continue during the Kings pleasure for falsly accusing Sir John and Sir Ralph Sutton as well by mouth as writing of a conspiracy whereof upon hearing they were acquitted And n. 21. John Shadwell of Baghsteed in Sussex was likewise committed to the Fleet by THE LORDS there to remain during the Kings pleasure for misinforming of the Parliament that the Archbishop of Canterbury had excommunicated him and his neighbours wrongfully in his
spiritual Cour◠for a temporal cause belonging to the Crown and Common Law which was adjudged by the Lords upon examination to be untrue To passe by the accusation of Sir Philip Courtney of divers hainous matters oppressions dissensions before the King and Lords in the Parliament of 16 R. 2. n. 6.13 14. of which more anon In the Parliament of 17 R. 2. n. 20 21. John Duke of Lancastre Steward and Thomas Duke of Gloucester Constable of England complained to the King that Sir Thomas Talbot Knight with other his adherents conspired the deaths of the said Dukes in divers parts of Cheshire as the same was confessed and well known and prayed That the Parliament might judge of the fault Whereupon the King and the Lords in Parliament without the Commons adjudged the said fact to be open and High Treason And thereupon they awarded two Writs to the Sherifs of Yorks and of Derby to take the body of the said Sir Thomas retornable in the Kings Bench in the month of Easter next ensuing And open Proclamation was made in Westminster Hall That upon the Sherifs retorn and at the next coming in of the said Sir Thomas he should be convicted of Treason and incurr the loss and pain of the same and that all such who should receive him after the Proclamation should receive the like losse and pain In the Parliament of 20 R. 2. n. 15 16 23. Sir Thomas Haxey Clark was by the King Lords in Parl. adjudged to die as a Traytor and to forfeit all his Lands Goods Chattels Offices and Livings for exhibiting to the House of Commons a scandalous Bill against the King and his Court for moderating the outragious expences of his Court by Bishops and Ladies c. Upon the Bishops intercession the King spared his life and delivered him into the custody of the Archbishop to remain as his Prisoner In the Parliament of 21 R. 2. n. 19 20. Pl. Parl. n. 2. to 15. The Lords Appellants appealed Sir Tho Mortimer Knight of High Treason for raising war against the King accroaching royal power and purposing to surrender his homage and allegiance and depose the King Who flying into the parts of Ireland thereupon the Lords in Parliament assigned him a certain day to come and render himself to the Law or else to be adjudged and proceeded against as a Traytor and Proclamation thereof was made accordingly in England and Ireland to render himself within 3 months And that after that time all his Abettors and Aiders should be reputed for and forfeit as Traytors He not coming at the day The Duke of Lancaster Steward of England by assent of the Lords in Parliament adjudged him a Traytor and that he should forfeit all his Lands in fee and see tayl together with all his Goods and Chattels The like Judgement in like manner was in the same Parliament given against Sir John Cobham Knight for the like Treason Placit Coronaen 16. On the 22 day of March 22 R. 2. n. 27. The King by assent of the Lords adjudged Sir Robert Plesington Knight then dead a Traytor for levying war against him with the Duke of Glocester at Harrengary for which he should lose all his Lands in fee or fee tayl and all his goods And n. 28. Henry Bowht Clerk for being of Counsel with the Duke of Hereford in his device was adjudged by the King and Lords to die and forfeit as a Traytor after which his life was pardoned and he banished In the Parliament of 1 H. 4. n. 79. As the Commons acknowledged that the Iudgements in Parliament had always of right belonged to the King and Lords and not unto the Commons So therein the King and Lords alone without the Commons gave Judgement in sundry cases as Judges in Parliament 1. In Sir Thomas Haxey his case who in his own name presented a Petition in this Parliament a nostre tresedoute seigniour le ROY a LES SEIGNIORS DU PARLIAMENT shewing that in the last Parliament of 21 R. 2. that he delivered a Bill to the Commons of the said Parliament for the honour and profit of the said King and of all the Realm for which Bill at the will of the King he was by the King and Lords adjudged a Traytor and to forfeit all that he had praying that the record of the said Judgement with the dependants thereupon might be vacated and nulled by them in this present Parliament as erronious and that he might be restored to all his degrees farms estate goods chattels ferms pensions lands tenements rents offices advow sons and possessions whatsoever and their appurt and enjoy them to him and his heirs notwithstanding the said Iudgement or any grant made of them by the King The Commons House exhibited a Petition likewise on his behalf to the like effect adding that this judgement given against him for delivering this Bill to the Commons in Parliament was eneontre droit et la course quel avoit estre use devant in Parlement en anientesment des Customs de◠le◠Communes Upon which Petitions Nostre Seignior le ROY de Induis assent des touz les Seigniors esperituelz et temporelz ad ordinez et adjudges que le dit juggement renus vers le dit Thomas in Parlement soit de tout casses revorses repellez et adnullez et tenus pur nul force n'effect et que le dit Thomas soit restitut a ses nom et fame c. nient obstant mesme le juggement 2ly In the case of Judge Rickhill 1 H· 4. n. 92. On the 18 of November the Commons prayed the King that Sir William Rickhill late Just of the Common Bench arrested for a Confession he had taken of the Duke of Gloucester at Calice might be brought to answer for it devant les Seigniors du Parlement whereupon he was brought into Parliament before the Kings presence and all the Lords spiritual and temporal and Commons assembled in Parliament where Sir Walter Clapton Chief Justice of the Kings Bench by the kings command examined the said Sir William how and by what warrant he went to Calice to the said Duke of Glocester and upon what message Who answered that king Richard sent him a special Writ into Kent there recited verbatim commanding him by the faith and allegiance whereby he was obliged to him and under pain of forfeiting all he had to goe unto Caleys And that at Dover he received a Commission from the said king by the hand of the Earl Marshal to confer with the Duke of Glocester and to hear whatsoever he would say or declare unto him and to certifie the king thereof in proper person wherever he should be fully and distinctly under his Seal Whereupon he went thither and took the said Dukes Examination in writing according to the purport of the said Commission a Copy whereof the Duke himself received c Upon the hearing of his answer and defence
but by Bill The 8th President that may be objected is this Adam de Arleton or Tarlton Bishop of Hereford in a Parliament held at London Anno 1322. was apprehended by the Kings Officers and brought to the Bar to be arraigned for Treason and Rebellion in aiding the Mortimers and others in their wars with men and arms where having nothing to say for himself in defence of the crimes objected and standing mute for a space at last he flatly told the King That he was a Minister and Member of the Church of Christ and a consecrated Bishop though unworthy therefore I neither can nor ought to answer to such high matters without the consent of my Lord Archbishop of Canterbury my direct Judge next after the Pope and of the other Fathers the Bishops my PEERS At which saying the Archbishops and Bishops there present rose up and interceded to the King for their Colleague and when the King would not be intreated they all challenged the Bishop as a Member of the Church exempt from the Kings Justice and all secular judicature The King forced thereunto by their claimors delivered him to the Archbishops custody to answer elsewhere for these crimes Within few days after being apprehended again and brought to answer before the Kings royal Tribunal in the Kings Bench at Westminster for his Treasons the Archbishops of Canterbury York and Dublin hearing of Tarltons arraignment came with their Crosier staves carried before them accompanied with 10 Bishops more and a great company of men entred into the Court and by open violence rescued and took away the Bishop from the Bar before any answer made to his charge chasing away the Kings Officers and proclaiming openly That no man should lay violent hands on this Trayterly Bishop upon pain of excommunication and so departed The King exceedingly incensed at this High affront to Justice and himself commanded an Inquest to be impanelled and a lawfull inquiry to be made of the Treasons committed by the Bishop in his absence being thus rescued from Justice The Jury without fear of the King or any hatred of the Bishop found the Bishop guilty of all the Articles of Treason and Rebellion whereof he was indicted Whereupon the King banished the Bishop seised all his temporalties lands and goods But yet notwithstanding the Bishop by consent of all the Prelates was by strong hand kept in the Archbishops custody till he had reconciled him to the King After which by way of revenge he was a principal instrument of the Kings deposing and murther which having effected in the Parliament of 1 E. 3. 6. this Bishop petitions that the Indictment and Iudgement against him and the proceedings therein might be brought into Parliament and there nulled as erronious which was done accordingly Et quia recitatis et examinatis coram nobis et consilio nosâ—ro recordo et processu praedictis Et etiam coram Praelatis Comitibus Baronibus Magnatibus tota communitate regni nostri praesenti Parliamento nostro praesentibus compertum fuit quod in eisdem recordo et processu errores manifesti intervenerunt per assensum totius Parliamenti adnullatur and so he had restitution I answer that as this rescue of proceeding and judgement against this trayterous Bishop were singular So is this repeal and reversal of it as erronious before and by all the Commons and whole Parliament as well as King Prelates and Nobles and that no doubt at the special instance of this and all the other Bishops highly concerned in this cause Wherefore this one Swallow makes no Summer and proves no judicial authority joyntly with the King and Lords since they never joyned with them before nor since in reversing of any such error upon Judgement in the Kings Bench but only where an erronious Attainder by Bill in one Parliament was reversed by Bill in another The 9th is the Clause of King Edward the thirds Letter to the Pope in the 4th year of his reign already answered p. 274. The 10th is Sir John at Lees case 42 E. 3. n. 20. said to be ADJVDGED by the Lords and COMMONS I answer this Case is somewhat mâ—staken For the Record only mentions That the 21 day of May the King gave thanks to the Lords and Commons for their coming and aid granted on which day all the Lords and sundry of the Commons dined with the King After which dinner Sir Iohn at Lee was brought before the King LORDS COMMONS next aforesaid who dined with the King to answer certain objections made against him by William Latymer about the wardship of Robert Latymer that Sir John being of power had sent for him to London where by duresse of Imprisonment he inforced the said William to surrender his estate unto him which done some other Articles were objected against the said Sir John of which for that he could not sufficiently purge himself HE was committed to the Tower of London there to remain til he had made fine and ransom at the Kings pleasure and command given to the Constable of the Tower to keep him accordingly And then the said Lords and Commons departed After which he was brought before the Kings Councel at Westminster which COUNCEL ORDERED the said ward to be reseised into the Kings hands So as this record proves not that this judgment was given in the Parliament house nor that the Lords and Commons adjudged Sir Iohn but rather the King and his Councel in the presence of the Lords and Commons after the Parliament ended The 11 12 13. Are the cases of the Lord Latymer Lord Nevil and Richard Lyons forecited Here p. 283 284 350. which are nothing to purpose the Lords alone giving judgement in them without the Commons who did only impeach them and the King removing the Lord Latymer from his Council at their further request So that these 3. cases refute their opinions who object them The 14. is the Case of Weston and Gomines 1 R. 2. n. 38 39. In which the Lords alone gave the Judgement as I have proved p. 332 333 Therefore pointblank against the Objectors The 15. president is that of Iohn Kirby and Iohn Algar two Citizens of London in the Parliament of 3 R. 2. n. 18. who conceiving malice against John Imperial an Ambassador sent hither from the State of Genoa who had procured a Monopoly to furnish England with all such wares as come from the Levant keeping his staple at Southampton killed him in London upon a sudden quarrel picked with him for which they being committed this being a new and difficult case and the Judges being in doubt whether it were Treason or no it was thereupon propounded in Parliament according to the Statute of 25 E. 3. c. 2. like that of 25 E. 3. Parl. 2. of those who are born beyond the Seas 14 E. 3. c. 5. 13 E. 1. c. 24.32 E. 1. rot 17. 22. Claus 46 H. 3. n. 3. Claus 14
presidents are but few never judicially argued and rather connived at than approved by the King and Lords taken up with other more publike businesses therefore passing sub silentio they can make no Law rule or right as is resolved in Long. 5 E. 4. f. 110. Cooks 4. Reports f. 93 94. Slades case 6 Report f. 75. Druries case 5ly There are many express antient Presidents Statutes Judgements in most former Parliaments to the contrary sundry of them upon the Commons own Petitions and complaints which will over-ballance and controll these few late Presidents warranted by no old Records or Statutes whatsoever but contradicted by the constant practice of former ages To clear which truth beyond contradiction I shall shew you the very Original of the Commons summons to Parliament by the Kings writs out of meer grace not antient right or custom with the several varieties of Writs Statures touching elections of Knights Citizens Burgesses and chief cases resolved in Parliaments touching Elections breaches of Privileges relating to Members or their menial Servants that I finde upon record which will abundantly clear this point and refute these irregular puny presidents The original of our Parliaments as now constituted of King Lords and Commons is by several of our Historians Antiquaries and Writers referred to the 16. or 17. year of King Henry the 1. or at least to Henry the 2. his reign which I have already refuted by a particular list of all the Parliaments under them Yet many of this opinion affirm that the Commons were not constantly summoned to our Parliaments but only the Lords Spiritual and Temporal before the 49. of King Henry the 3. and beginning of Edward the 1. his reign neither had they a Speaker till 51 E. 3. Therefore no power of Judicature over their Members The first Writ I finde extant that savors of summoning Knights to Parliament is that in the 15. year of King Iohn wherein this King sent a Writ to the Sherif of Oxon in these words Rex Vicecomiti Oxon salutem Praecipimus tibi quod omnes Milites Ballivae tuae qui summoniti fuerunt esse apud Oxoniam ad Nos à die Omnium Sanctorum in 15. dies venire facias cum armis suis Corpora vero Baronum sine armis singulariter et IV. DISCRETOS MILITES DE COMITATU TUO illuc venire facias ad Nos ad eundem terminum AD LO QUENDUM NOBISCUN DE NEGOTIIS REGNI NOSTRI Teste meipso apud Witten 11 die Novembris Eodem modo scribitur omnibus Vicecomitibus This is no Writ of Summons to Parliament as some take it but rather to a Military Council as I conceive it For 1. There is no mention of any Bishops Abbots Priors Spiritual Lords Citizens or Burgesses summoned thereto but only of Barons without arms and Knights with arms 2ly Of all knights they had formerly summoned to appear there 3ly Of 4. not 2. discreet Knights out of every County and that not ad Parliamentum nostrum but ad Nos venire facias 4ly They were not to be elected by the people but immediately summoned elected and sent by the Sherifs themselves 5ly They were to come ad loquendum nobiscum not ad faciendum consentiendum hiis c. as the usual Writs of Summons for Knights of Shires are since without any power of Judicature to fine seclude or question one anothers elections or returns as now The very first express writ extant in History or Records that I can meet with upon search for the calling of Knights Citizens and Burgesses to Parliament is in 49 â—3 where the King after the battel of Evesham by his Writs summoned no less than 64 Abbots 36 Priors besides the Bishops and 5. Deans of Cathedrals and the Temporal Earls and Barons only 23. in number the rest being slain in the field or in actual rebellion After their Writs of Summons and name â—ollows this Writ or Note of summons for Knights Citizens and Burgesses and Barons of the Cinqueports Item mandatum est singulis Vicecomitibus per Angliam quod VENIRE not elâ—gi FACIANT duos Milites de Legalioribus Probioribus et discretioribus Militibus singulorum Comitatuum AD REGEM Londoniis in Octabis praedictis in forma supradicta Item in forma praedicta scribitur CIVIBUS Eborum Civâ—bus Lincoln caeteris Burgis Angliae quod mittant in forma praedict DUOS DE DISCRETIORIBUS LEGALIORIBVS PROBIORIBUS TAM CIVIBUS QUAM BURGENSIBUS SUIS Item in forma praedicta mandatuÌ„ est Baronibus et probis hominibus Quinque Portuum prout continetur in brevi inrotulato inferius Here the King 1. limited both the number and quality of the Knights Citizens and Burgesses when first summoned to our Parliaments 2ly He directed particular Writs to all Sherifs to summon not to elect by the choice of the Freeholders two of the legallest honestest discreetest Knights in their Counties which they alone were then to make choice of 3ly He sends particular Writs to some not all Cities and the rest of the Burroughs of England to send two of their discreetest legallest and honestest Citizens and so to the Cinqueports to send such Barons to this Parliament And if they returned any not thus qualified against the form of these Writs no doubt the King himself might refuse seclude them and he with his Lords were the sole Judges of their fitness for that service not they themselves to judge of their own or their fellow Members fitness or incapacity The first seclusion of any Knights Citizens and Burgesses in Parliament and electing others in their places was by the King himself with his Councils advice not by the Commons themselves for wilfull absence Claus 5 â— â— m. 26 dorso where divers Knights of Shires Citizens and Burgesses departing from the Parliament held at London without the Kings special license the King thereupon issued out Writs to the Sherifs of Yorkshire and other Counties to summon all such Knights Citizens and Burgesses within their Bayliwicks to return to the Parliament vel alios ad hoc idoneos loco ipsorum si ad hoc vacare non possunt eligere c. or to cause others who were fit to be elected in their places if they could not attend the Parliament with sufficient authority from the Counties Cities and Boroughs to consent to those things which should be ordained at the next Session of Parliament then prorogued to a certain day Here the King alone by his Writ takes authority to discharge those Knights Citizens and Burgesses who departed from the Parliament without his license and would or could not attend it without the Commons votes or assents and to command the Sherif to elect other sit persons in their places Claus 4 E. 3. m. 13 Dorso The King having issued out writs of Summons to Parliament dated Octob. 23. The 3 of November following he sent writs to all Sherifs to proclaim in all places That he being
4. n. 19 20 21. upon these and other Petitions of forcible disseisins and for imprisoning the Abbot of Meniham in Devonshire THE KING LORDS adjudged that this Sir Philip Courtney should be bound to his good behaviour and committed to the Tower for his contempt From which records it is evident First that Members of the Commons house may be complained and petitioned against for misdemeanors and put to answer before the King and Lords in Parliament and there fined and judged not before the Commons house and that this was the antient way of proceeding Secondly that the Commons cannot suspend or discharge any of their fellow-Commoners or Knights from sitting in Parliament but only the King and Lords in full Parliament in whom the power of Judicature rests much less then can they expell or eject any of their Members by their own authority without the King and Lords concurrent consents No more than one Justice of peace Committee-man or Militia-man can un-Justice or â—move another since Par in parem non habet Imperium neither in civil military ecclesiastical nor domestical affaiâ— Thirdly that the power of restoring readmitting aâ—ended Member of the Commons house belongs not to the Commons themselves but to the King and Lords to whom the Commons in this case addressed themselves by petition for Courtneys readmission after his submission of the complaints against him to the arbitrement of those Members to whom the King and Lords referred the same In the Parliament of 17 Rich. 2. num 23. It was accorded and resolved by the King and Lords at the Complaint petition request of the Commons that Roger Swinerton who was endited of the death of one of their companions Iohn de Ipstones Knight of the said Parliament for the County of Stafford slain in coming towards the said Parliament by the said Roger should not be delivered out of prison wherein he was detained for this cause by bail mainprise or any other manner until he had made answer thereunto and should be delivered by the Law The Commons alone by their own power having no authority to make such an order even for the murther of one of their own Members without the King and Lords who made this ordinance at their request I find this objected against King Richard the 2. in the Parliament of 1 H. 4. n. 37. That he frequently sent his Mandates to Sherifs to return certain persons named only by himself and not freely chosen by the people to be knights of Shires thereby to effect his own ends and oppress the people with Subsidies But yet I find not in all his reign any one Knight thus unduly returned questioned by the Commons or suspended the House much less ejected by them or by the King and Lords upon the Commons complaint thereof unto them A clear evidence they had then no such power to eject their Members for being unduly elected returned as how they use In the Parliament of 20 R. 2. n. 14 15 16 17. The King being highly offended with the Commons for receiving Haxyes Bill said that the Commons thereby had committed an offence against him his dignity and liberty the which he willed THE LORDS to declare the next day to the Commons Who thereupon delivering up the Bill came fort with before the King shewing themselves very sorrowfull declaring to him that they meant no harm and submitting themselves to the King herein most humbly craved his pardon Whereupon the Chancellor by the Kings commandment declared That the King held them excused and the King by mouth declared how many wayes they were bound unto him Lo here the whole House of Commons submit themselves to the King in the House of Lords as Judges of them and their misdemeanors in Parliament and crave pardon for offending him In the Parliament of 2 H. 4. n. 45 46. The Commons house petitioning the King that the Act for his moderation of the Statute against Provisions might be examined for as much as the time was recorded otherwise than was agreed by them The King granted thereunto by protestation that the same should be no example where after Examination by the Bishops and Lords they affirmed the same to be duly entred which the King also remembred Whereupon the COMMONS the same day for this their misinformation came into the Lords House and knéeling before the King beseeched the King to pardon them if happily they through ignorance had or should offend him which the King granted Here the Bishops and Lords are Judges of the Commons misinformation misentry of an Act and the King of their Offence against him in Parliament by this misinformation which he pardons them upon their humble submission and no doubt might have punished them for it by the Lords assent and advice had he pleased So farr are they from being Judges in Parliament that themselves may there be judged if they therein offend as all their Speakers usual protestations and petitions to the King when presented evidence That the Commons may have liberty of speech and that if any Members in the House of Commons in communication and reasoning should speak more largely than of duty they ought to doe that all such offences may be pardoned which the King may punish if there be cause unâ—eâ—â—â— he pardon it of record upon the Speakers Protestation before hand Sir Edward Cook himself as well as the Parliament Rolls and experience informs us of these particulars touching the Speakers of the Commons House in Parliament their chiefest Member 1. That though the Commons are to chuse their own Speaker and that by the kings special command and license to them in every Parliament since they had one not with due â— who likewise prescribes them the time when to present him yet the use is as in the Conge de eslâ—yer of a Bishop that the king doth name a discreet and learned man to them whom the Commons do eâ—ect pro formâ— only because he cannot be appointed for them without their election being their mouth and â—usted by them 2ly That after the Commons choice the King may refuse him 3ly That after he is chosen he must be presented to the king by the Commons in the Lordâ— House for his approbation and confirmation in that plaâ—s the Commons sending up some of their Members to acquaint the Lords Spiritual and Temporal that according to the Kings command they had chosen such a one their Speaker and are ready to present him at the â—me appointed 4ly That where he is thus presented he is in disable himself for so weighty a service and to make sutâ— to the King to be discharged and a more sufficient man chosen in his place To which I shall adde that upon this excuse the king may discharge him if he please and command the Commons to elect another as King Henry the â— did discharge Sir John Popham when presented Speaker to him by the Commons in the Parliament
or jurisdiction to enlarge him or to fine or imprison those who took him in Execution as of late times they have done And in this Parliament upon the petition and supplication of the Prelates and Clergy n. 32. the King by the assent and advice of the Lords enacted the Statute of 8 H. 6. c. 1. That the Clergy and their Attendants called to the Convocation by the Kings writ should have and enjoy for ever hereafter the same liberty and immunity in going coming and tarrying as the Great men and Commonalty of England called or to be called to the Kings Parliaments have used and enjoyed they complaining to the king that they and their servants coming to the Convocation were oftentimes and commonly arrested molested and inquieted Which they had no power to redress but only the King and Lords upon their complaints thereof In the Parliament of 18 H. 6. n. 13. It was shewed to the King and the Lords Spiritual Temporal that Gilbert Hore Sherif of the County of Cambridge upon the kings writ directed to him to chuse 2. knights for that shire had made no return of any knights for that County for certain reasons therein expressed Whereupon the King by advice and assent of the Lords Spiritual and Temporal not the Commons house alone as now nor yet joyntly with them ordered that a New writ for electing 2. knights for that County should be directed to him and that he should make proclamation that no person should come to the election with arms or arrayed in warlike manner in disturbance of the said election and breach of the kings peace A memorable president of the Kings and Lords Jurisdiction even in point of elections In the Parliament of 23 H. 6. n. 41. The Commons petitioned the king that by the advice and assent of the Lords Spiritual and Temporal and at their special request it might be enacted that every Member of the Lords and Commons house who should have any assault or affray made upon him being at the Parliament or going to or coming from thence might have the like remedy at Sir Thomas Parr knight had given him in this Parliament to wit upon petition of the Commons in his behalf to the King and Lords being the same as was enacted in Chedders case 11 H. 6. c. 11. before Whereunto the king answered The Statutes therefore made shall be observed In the Parliament of 31 H. 6. rot parl n. 25 26 27 28. we have this memorable famous case touching privilege of Parliament in their very Speakers own case resolved by the Lords Thomas Thorp chief Baron was chosen Speaker of the Parliament after his election and before the Parliament which was prorogued sat he was arrested and taken in execution at the sute of the Duke of York whereupon some of the Commons were sent up by the House to the king and Lords spiritual and temporal sitting in Parliament desiring that they might enjoy all their ancient and accustomed privileges in being free from arrests and propounded the case of Thomas Thorp their Speaker to them desiring his inlargement whereupon the said Lords spiritual aad temporal not intending to hurt or impeach the privilege of the Commons but equally after the course of Law to administer Justice and to have knowledge what the Law will weigh in that behalf declared to the Justices the premises and asked of them whether the said Thomas ought to be delivered from prison by force and vertue of the said privilege of Parliament or not To the which question the chief Justices in the name of all the Justices aforesaid communication and mature deliberation had among them answered and said That they ought not to answer that question for it hath not been used aforetime that the Justices should in any wise determine the privilege of this high Court of Parliament for it is so high and mighty in his nature that it may make that Law which is not and that that is Law it may make no Law and the determination and knowledge of their privilege belongeth to the Lords of the Parliament and not to the Justices But as for declaration of proceedings in the lower Courts in such cases as writs of Supersedoas of Privilege of Parliament be brought and delivered the said chief Justice said that there be many and divers Supersedeas of privileges of Parliament brought into the Courts but there is no general Supersedeas brought to furcease all Processes for if there should be it should seem that this high Court of Parliament that ministreth all Justice and equity should let the process of the common Laws and so it should put the party plainant without remedy for so much as actions at Common Law be not determined in this high Court of Parliament And if any person that is a Member of this high Court of Parliament be arrested in such cases as be not for Treason or Felony or surety of the Peace or for condemnation before the Parliament it is used that all such persons should be released of all such arrests and make an Attorney so that they may have the freedom and Liberty freely to attend upon the Parliament After which answer and Declaration it was throughly agréed assented and concluded by the Lords Spiritual and Temporal that the said Thomas according to the Law should remain still in prison for the causes abovesaid the privilege of the Parliament or that the same Sir Thomas was Speaker of the Parliament notwithstanding And that the premises should be opened and declared to them that were comen for the Commons of this land and they should be charged and commanded in the kings name that they with all goodly hast and speed proceed to the election of another Speaker The which premiâ—es for as much as they were matters of Law by the commandement of the Lords were opened and declared to the Commons by the mouth of Walter Moyle one of the kings Sergeants at Law in the presence of the Bishop of Ely accompanyed with other Lords in notable number and there it was commanded and charged to the said Commons by the said Bishop of Ely in the kings name that they should proceed to the election of another Speaker with all goodly hast and speed so that the matters for which the king called this his Parliament might be proceeded in and this Parliament take good and effectual conclusion and end Whereupon the Commons accordingly elected Thomas Charlton knight for their Speaker the next day and acquainted the Lords therewith and desired the kings approbation of their choice which was accorded unto by the king by assent of the Lords Lo here 1. the Lords Spiritual and Temporal are the sole Judges of the privilege of the very Speaker of the House of Commons who is here adjudged to remain in execution notwithstanding their petition for his enlargement 2ly The whole House of Commons could not then send for nor yet enlarge their own Speaker when imprisoned
LORDS and GREAT MEN as well Ecclesiastical as secular were present inquiry was made whether any were unjustly spoiled and deprived of their rights Whereupon it was shewed that Arch-Bishop Wulfred was unjustly deprived of his just Lordship and Jurisdiction near six years space and forced under pain of confiscation of his goods and banishment to convey three hundred Hydes of Land to him upon condition that he should bee restored to his full Archiepiscopal authority which condition was not performed After the Kings death Abbesse Kenedrytha his daughter and heir was summoned to this Council where the Arch-Bishop complained of the injuries done to himself and Christ-Church in Canterbury by her Father requiring reparations for them from the Abbesse if it were just Whereupon ALL THE COUNCIL held it just and DECREED BY AN UNANIMOUS DECREE that all the Lands and things taken away from the Arch-Bishop by her Father should bee restored together with the profits thereof lost for so long a space as also all the Books and Writings by the Abbesse being heir to the King which was accordingly performed by her King Bertulfus Anno 850. Holding a Great Council with the Prelates and Nobles of the whole Realme of Mercia upon the complaint of Siward and the Monks of Croyland of certain injuries maliciously done unto them by their adversaries in violating the Bounds and Priviledges of their Sanctuary to the great prejudice of their Abby Thereupon the King Prelates and Nobles in this Council for redress of this injury prescribed a Perambulation of their Bounds to be made by the Sheriffe of the County and to certifie the same unto them when made which was accordingly made certified to and confirmed by THE KING PRELATES and NOBLES in the Council held by them at Kingsbury in the year 851. as you may read at large in Ingulphus upon the petition of Abbot Siward After the death of King Edgar Anno 975. there being a great difference between the Nobles of the Realme about electing a new King some of them siding with Ethelred others with Edward his two Sons all the Bishops Abbots and NOBLES assembled in a great Parliamentary Council to debate and determine their rights and titles to the Crown Wherein they elected and crowned Edward the elder Brother King In this Council and two or three more succeeding it at Winchester and Calne the married Priests complained TO THE LORDS that they were unjustly expelled out of their Churches by the Monks and their prevailing party during King Edgars Reign to their dishonour and the great injury of the Nation desiring that the Monks might bee ejected and they restored to their Churches they anciently injoyed about which there were great contests and disputes in sundry Councils the King and LORDS inclining to restore them against Arch-Bishop Dunstans and other Monkish Prelates wills About the year 982. There was a Witenagemâ—t or Parliamentary Council held at London to which the DUKES PRINCES and NOBLES resorting from all parts Adelwold Bishop of Winchester complained that one Leofsi who had purchased Lands of him in the Isle of Ely not only refused to pay for them but also disseised him of three other Mannors The cause being opened and pleaded by the Bishop and the Lawyers flocking thither from all parts They ALL ADJUDGED that the Lands and Mannors should bee restored to the Bishop together with all his dammages and that Leofsi for this his rapine should also pay a fine and ransome to the King Queen Edgen in a civil cause and suit in the County Court between her and Goda appealed from that Court to King Ethelred and a Parliamentary Council at London Congregatis Principibus sapientibus Angliae In the time of St. Edward a suit between the Bishops of Winchester and Durham coram Principibus et Episcopis Regni in praesentia Regis ventilata finita est In the tenth year of King William the Conquerour Episcopi Comites et Barones Regni regia potestate ediversis Provincis ad universalem Synodum pro causis audiendis et tractandis convocati sunt as the Leger Book of Westminster records Hence I suppose it was that what we now call a Parliament was sometimes stiled by our ancient Historians in former ages MAGNUM PLACITUM because of the great Pleas and suits therein decided and judged BY THE KING and LORDS King William the first Anno 1071. held a great Council of his PRELATES and NOBLES at Winchester In hoc Conciliâ— dum caeteri trepidi ut pote Regis aegnâ—scentes animum ne suis honoribus privarentur venerandus Vir Wulstanus Wigorniensis Episcopus quamplures possessiones sui Episcopatus ab Aldredo Archiepiscopo duâ— Ã Wigorniensi Ecclesia ad Eboracensem transferretur sua potentia retentas qui eo tunc defuncto in Regiam potestatem devenerant constanter proclamabat JUSTITIAMQUE INDE FIERI tam AB IPSIS QUI CONCILIO PRAEERANT quam a Rege FLAGITABAT At quia Eboracensis Ecclesia non habens Pastorem qui pro ea loqueretur muta erat JUDICATUM EST ut ipsa querela sic remaneret quousque Archiepiscopo ibi constituto qui Ecclesiam defenderet dum esset qui ejus querelae responderet objectes responsis posset ebidenâ—us et Iustius Iudicium fieri sicque tunc a querela ad tempus remansit But Thomas being soon after consecrated Arch-Bishop of York thereupon reverendi Wulstani Wigorniensis Episcopi mota est iterum querela Archiepiscopo jam consecrato Thoma qui pro Eboracensi loqueretur Ecclesia in Concilio in loco qui vocatur Pedreda celebrato coram Rege ac Doroberniae Aâ—chiepiscopo Lanfranco Episcopis Abbatibus Comitibus Primatibus totius Regni Dei gratia adminieulante Terminaâ—um Cunctis siquidem machinationibus non veritate stipatis quâ—bus Thomas ejusque fautores Wigorniensem Ecclesiam deprimere Eboracensi Ecclesiae subjâ—cere aniliamque facere modis omnibus satagebant justo Dei judicio in scriptis evidentissim is detritis penitus annihillatis non solum vir Dei Wulstanus proclamatas expetitas possessiones accepit sed suam Ecclesiam Deo clamante Rege concedente ea libertate liberam suscepit qua primi fundatores ejus sanctus Rex Ethelredus Offa c. ipsam liberaverunt By which History it is apparent that the King and Lords in that age had the sole judicature in civil causes in the Parliaments then held and decided civil Titles and controversies therein between Bishops and spiritual as well as temporal persons In the year-Book of 21 Ed. 3. fol. 60. There is a recital that upon the complaint of the Abbot of St. Edmonds de Bery against the Bishop of Norwich for infringing the liberties of the Abby in the Reign of William the Conquerour in a Parliament held under him most likely in this Council of Pedreda it was ordained per le Râ—y et per Larchebesque de Canterbury et per touts les Auters Ebesques de
Lords gave him remedy by a Writ out of the Chancery Claus 14. E. 2. m. 12. in the Schedula there is a Judgement in Parliament by King Lords and Council touching the Abby of Abingdon and a composition formerly made between the Abbot Prior and monks thereof reversed nulled because inconvenient Claus 14. E. 2. m. 17. dorso there is a case concerning a reprisal brought by appeal out of the Chancery into the Parliament before the King Lords and Council and there heard and decided And Claus 15. E. 2. there are many cases and Writs touching Reprises In the Parliament of 1. E. 3. there were many Judgements given in sundry civil cases upon petitions To the King and his Council by the King Lords and Council extant in the bundle of Petitions and Claus Rolls of that year and those things that were proper for the Courts of Law and Chancery were referred to them to be there ended Claus 1. E. 3. m. 1. Upon the petition of Alice Gill and Robert Carder to the King Council and Parliament that they buying Corne in Abevil in France to transport to London it was arrested by the Baily of St. Valeric to the value of one hundred pounds at the suit of Will de Countepy of Crotye in Picardy and delivered to him against their wills because the Ship of the said Will was taken upon the Sea by the men of Bayon which ship the petitioners finding in the port of London had arrested by writ out of the Chancery directed to the Sheriffes of London until the said hundred pounds was paid them by the Merchant the King and Council ordered upon their petition that the ship might not be discharged till the 100 l. was satisfied that a Writ should be directed out of the Chancery to the Sheriffes of London to do Justice upon the contents in the Petition according to the Law of Merchants The like case of Reprise upon the Petition of Hugh Samson is in 1. E. 3. rot 5. In Claus 1. E. 3. part 1. m. 10. There is a Judgement given by the Lords and Council for the Bishop of Durham touching the Liberties and Royalties of his Bishoprick against the Kings revocation where in sundry Petitions and answers in former Parliament under King Edward the 2d are rehearsed wherein hee could have no right Mem. 12. there is a Judgement given by the Lords and Council in Parliament for the Bishop of York his prisage and preemption of wines next after the King in the Port of Hull and in Claus 1. E. 3. Pâ— 2. m. 11. Claus 4. E. 3. m. 9. remembred in the year Book of 6. E. 3. f. 50. So Claus 2. E. 3. m. 20. in Schedula there is Placitum in Parliamento before the King and his Council of the Dean and Chapter of Litchfield touching their Title to Camock Claus 14. E. 3. part 1. m. 41. Upon the Petition of the Bishop of Carlisle it was resolved by the Lords and Council in that and sundry other Parliaments in the Reign of this King and his Father non esse â—uri consonum that Churches and other things spiritual annexed to Archbishopricks and Bishopricks should belong to the King and Gardians of the temporalties but to the Gardians of the spiritualties and so ordered accordingly yea so was it resolved upon the Petition of the Bishop of Winchester to the King and his Council in the Parliament of Claus 1. E. 3. rot 9. dorso Where coram Rege et Magno Concilio concessum est et concordatum quod custodâ—s temporalium Episcopatus non se intromittant amplius temporibus vacationum hujusmodi fructibus Ecclesiarum de Estanmer Hamoldan annexed to the Bishoprick of Winchester In the Parliament of 14. E. 3. Sir Geoffry Stantens case upon his Petition to the King and Lords in Parliament the Justices of the Common Pleas came with the record of his case which had long depended before them in the Court of Common Pleas which being read and debated in the presence of all the LORDS Justices and others of the Kings Council their assistants in this case of Law they resolved that the Sonne being a stranger might aver that his Father who levyed the fine had nothing in the Lands and that the Wife in this case could not vouch her Husband And thereupon a Writ under the great Seal was sent to the Judges by the Lords order to give judgement accordingly Claus 35. E. 3. m. 40. A villain commits fellony and is attainted after that the Lord had seised his goods whereupon his goods were prized and seised on for the King notwithstanding the Lords seisure upon a Petition in Parliament It was resolved by the Lords and Council that it was just the goods should be restored to the Lord if they were not seised fraudulently to prevent the Kings seisure of them And a Writ of Restitution was thereupon awarded per ipsum Regem et per Petitionem in Parliamento In the 6. year of King Richard the 2d it was agreed between the Duke of Lancaster and the Scots in the Marches that for the benefit of both parties ut â—de caterâ— ipsi nee Anglici vexarenâ—ur per tot labores expensas sed singulis annis certi utriusque gentis destinarentur ad Parliamentum Regni utriusque qui et injurias acceptas proferrent in medium emendas acciparent secundum quantitatem damuâ—rum per Judicium Dominorum here the Lords both in the Parliament of England and Scotland are made sole Judges of injuries and dammages done by Scots or English upon one another in the Marches Quia vero Scoti ad Parliamentum Londoniis Anno 1383. supersederunt venire juxta conductum insuper damna interim plura Borealibus praesumpserunt inferre c. decretum est per Parliamentum ut frangenti fidem fides frangatur eidem Et concessae sunt Borealibus commissiones congregandi virtutem exercitus Scotis resistendi damna pro damnis inferendi quoties contingeret Scotos irrumpere vel hostili mâ—re partes illas intrare In the Parliament of 4. H. 4. n. 9. Upon the complaint of Sir Thomas Pomeroy and his Lady against Sir Philip Courtney and others forcible entry into several Lands and Mannors in the Country of Devon The King and Lords adjudged that the said Sir Thomas should enter into the said Mannors and Lands if his entry were lawful or bring his Assize without all delayes at his election In the Parliament of 5. H. 4. n. 41 42 43 44. in a case concerning Mannors and certain Lands in the County of Cornwal between the Prince and John Cornwal and the Countesse of Huntington his wife the King and Lords gave Iudgement that the Prince should â—e restored to the said Mannors and Lands being parcels of the Dutchey of Cornwal and that the Prince after seisin had should regrant them unto them which was done accordingly in Parliament In 6 H. 4 n. 28. Upon the Petition of
the Prior of Coventry the King granteth by Assent of the Bishops and Lords that no man do break the head of their Conduit nor cast any filth into their water called Sherbouâ—n on pain of ten pound and treble dammages to the Prior. In the Parliament of 9. H. 5. n. 12. Upon long debates of the Lords and Iustices it was resolved by them that the Abbot of Ramsy should have no prohibition against Walter Cook parson of Somersham who sued for Tithes of a Meadow called Crowland Mead in the hands of the Abbots Tenants In the great case of Precedency between the Earl Marshall and Earle of Warwick in the Parliament of 3. H. 6. n. 10 11. c. The Lords being to bee Iudges of the same suspended both of them from sitting in the house till their case was fully heard and they all voluntarily swore on the Gospel that they would uprightly judge the case leaving all affection In the Parliament of 11. H. 6. n. 32 33 34 35. Upon a Petition the King and Lords in Parliament adjudged the Dignity Seigniory Earledome of Arundel and the Castle and Lands thereunto belonging to John Earle of Arundel who proved his Title thereto by a deed of Entayle against the Title of John Duke of Norfolck who layed claim thereunto And in the Parliament of 39 H. 6. n. 10. to 33. The claime of the Duke of York and his Title to the Crown of England against the Title of King Henry the 6 th was exhibited to the Lords in full Parliament the Lords upon consultation willed it to be read amongst them but not to bee answered without the King The Lords upon long consultation declared this Title to the King who willed them to call his Justices Sergeants and Attorney to answer the same Who being called accordingly utterly refused to answer the same Order thereupon was taken That every Lord might therein freely utter his conceit without any impeachment to him In the end there were five objections made against the Dukes Title who put in an answer to every of them which done the Lords upon debate made this order and agreement between the King and Duke That the King should injoy the Crown of England during his life and the Duke and his heirs to succeed after him That the Duke and his two sons should bee sworne by no means to shorten the dayes or impaire the preheminence of the King during his life That the said Duke from thenceforth shall be reputed and stiled to bee the very Heir apparent to the Crown and shall injoy the same after the death or resignation of the said King That the said Duke shall have hereditaments allotted to him and his sons of the annual value of ten thousand marks That the compassing of the death of the said Duke shall bee Treason That all the Bishops and Lords in full Parliament shall swear to the Duke and to his heirs in forme aforesaid That the said Duke and his two sons shall swear to defend the Lords for this agreement The King by Assent of the Lords without the Commons agreeth to all the Ordinances and accords aforesaid and by the Assent of the Lords utterly repealeth the statute of intayle of the Crown made in 1. H. 4. so alwaies as hereafter there be no better Title proved for the defeating of their Title and this agreement by the King After all which the said Duke and the two Earles his sonnes came into the Parliament Chamber before the King and LORDS and sware to performe the award aforesaid with protestation if the King for his part duly observed the same the which the King promised to do All which was inrolled in the Parliament Rolls Lo here the Lords alone without the Commons judge and make an award between King Henry the 6th and the Duke of York in the highest point of right and title that could come in question before them even the right and title to the Crown of England then controverted and decided the King and Duke both submitting and assenting to their award and promising swearing mutually to perform it which award when made was confirmed by an Act passed that Parliament to which the Commons assented as they did to other Acts and Bills And here I cannot but take special notice of Gods admirable Providence and retaliating Justice in the translation of the Crown of England from one head family of the royal blood to another by blood force war treason and countenance of the Authority of the temporal and spiritual LORDS and COMMONS in Parliament in the two most signal presidents of King Edward and King Richard the 2 d. which some insist on to prove the Commons Copartnership with the Lords in the power of Judicature in our Parliaments the Histories of whose Resignations of their Regal Authority and subsequent depositions by Parliament I shall truly relate Anno 1326. the 19. of Ed. 2d Queen Isabel returning with her Son Prince Edward and some armed forces from beyond the Seas into England most of the Earles and Barons out of hatred to the Spencers and Kingâ— repaired to them and made up a very great army The King thereupon proclaimed that every man should resist oppose kill them except the Queen Prince and Earle of Kent which they should take prisoners if they could and neither hold any correspondency with them nor administer victuals nor any other assistance to them under pain of forfeiting their bodies estates But they prevailing and the King being deserted by most hee fled into Wales for shelter Whereupon Proclamation was made in the Queens army every day that the King should return and receive his Kingdome again if hee would conforme himself to his Leiges Quo non comparente Magnasâ—es Regni Hereâ—ordiae Concilium injeâ—unt in quo filius Regis Edwardus factus est Cusâ—os Angliae communi Decreto cui cuncti tanquam Regni custodi fidelitatem fecerunt per fidei sacramentum Deinde Episcopum Norwicensem fecerunt Cancellarium Episcopum vero Wintoniensem regni Thesaururium statuerunt Soon after the King himself with most of his evil Counsellors were taken prisoners being betrayed by the Welch in whom they most confided Hagh Spencer Simon Reding Baldoik and others of the Kings party being executed at Hereford Anno 1327. the King came to London about the feast of Epiphany where they were received with great joy and presents Then they held a Parliament wherein they all agreed the King was unworthy of the Crown and fit to be deposed for which end there were certain Articles drawn up against him which Adam de Orleton Bishop of Winchester thus relates in his Apology i Ea autem quae de Consilio et assensu omnium Praelatorum Comitum et Baronum et totius Communitatis dicti Regni concordata ordinata fuerunt contra dictum regem ad amotionem suam a regimine regni contenta sunt in instrumentis publicis Reverendo patre domino J. Dei
gratia nunc Cantuariensi electo tunc Wintoniensi Episcopo et Angliae Thesaurario câ—nceptis et dictatis manu magistri Willielmi de Mees Clerici sui Secretarii publici Notari conscriptis et in publâ—cam formam redactis Quam quidem concordiam ad mei excusationem duxi praesent bus inferendam quae talis est Accorde est qe sire Edward fiz aisne du roy ait le government del Roialme et soit rois Coronne par les Causes qe sensiwent 1. Primerment Pur ceo qe la persone ly Roy nest pas suffisaunt de governer Car en touz son temps ad il este mene et governe par autres qe ly ount mavoisement consaillez a deshoneur de ly et destruction de sâ—int Eglise et de tout son people saunz ceo qe il le vousist veer ou conustre le quel il sust bon ou mavoys ou remedie mettre ou faire le vousist quant il fuist râ—quis par les graunts et sages de sâ—n Roialme ou suffrir qe amende fuist faite 2. Item Par tout son temp 〈◊〉 se voloit doner a bon consail no le croire ne a bon governemeâ—t de son Roialm meys se ad done toux jours as ouraignes et occupationes nient covenables entre lessaunt lesploit des bosoignes de son Roialme Item Par defaute de bon governement ad il perdu le Roialme Descoce et autres terres et seignuries en Gascoygne Hytland les quex son pere li lessa en pees amiste ly Roy de Fraunce et detz moults des autres graunts 4. Item Par sa fierte qualte par mavoys consail ad il destruit seint Eglise les persones de seint Eglise tenuz en prisoun les uns Et les alires en destresce et auxint â—lusours graunts et nobles de la terre mys a hountose mâ—nt enprisâ—nez exulâ—tz disheritez 5. Item La ou il est tenuz par son serement a faire droit a toux il ne bad pas volu faire pur son propre profâ—it et convetise de ly de ces mavois conâ—saili es â—e ount este preâ— de ly Ne ad garde les autres pointz del serement qil fist a son corounement si com iâ— feust tenuz 6. Item Il deguerpist son Royalme et fist taunt come en ly fust qe son Roialme son poâ—ple fust perduz qe pys est pur la crualte de ly defaute de sa personne il est trove incorrigible sauntz esperaunce de amendement les quex choses fount si notoires qil ne poount estre desdiâ—z The form and instrument of his deposition is thus recorded by Ranulp Cistrensis and Henry de Knyghton Also that year in the Octaves of Twelfth day was made a Parliament at London There BY ORDINANCE with a solemn message is sent to the King that was in prison 3 Bishops 3 Earls 3 Barons 2 Abbots 2 Justices for to resign to the King that was then in warde the homage that was make to him some time for they would no longer have him for their Lord One of them Sir William Trussel Knight and PKOCURATOR OF ALL THE PARLIAMENT spake to the king in the name of all the other and said I William Trussel in the name of all men of the lond of Englond and of all the Parleament Procurator I resign to thee Edward the homage that was made to thee sometime And from this time forthward now following I defie thee and pryve thee of all ryal power and I shall never be tendant to thee as for King after this time Also this was openly cryed at London The true form of his deprivation is thus recorded in the Chronicle of Leycester and transcribed out of it by Henry de Kryghton in French Jeo William Trussel Procurator dez Prelatez Conrez et Barons et altrez Gentz en ma procuracye nomes Eyantal ceo ployne suffysant poure eâ— Homages et Fealtez au vous Edward Roy Dengleterre come al Roy avant ces â—enres de par lez ditz persones en ma procuracye nomes renk et rebaylle sus a vous Ed. et deliver et face quiâ—ez lez persones avant ditz en la meâ—lâ—our manere que ley et custome donnent E face protestacion en nom de eaux qils ne voillent deformes estre en vostre sâ—alâ—e ne en vostre lyance ne cleyment de vous come â—e Roy â—iens teniâ— Encz vous teignent de â—horse priveye persone sans nule manere de â—eale dignite Cum haec Rex audisset multum de fuis malefactis doluit rugitus et lamenta emittens eo quod per falsos et proditiosos consiliarios sic omni suo tempore ductus fuerat Thomas of Walsingham thus relates the proceeding Convenit etiam illuc tota regni Nobilitas citata per prius ad Parliamentum tenendum ibidem trastino dicti â—esti ubi cuncti centuerunt regem indignum diademate et propteâ— plures articulos deponendum er Edwardum filium ejus primogenitum in regem unanimiter eligendum Quod etiam consequenter factum fuit et electio in aulâ— magna Westmonasterii publice divulgare per quendam ex Magnatibus sapientem Cui electioni consensit populus universus Archiepiscopus vero Cantuariâ—e praesenti consensit electioni ut omnes Praelati Archiepiscopus quidem assumpto themate vox populi vox Dei sermonem feci populo exhortans omnes ut apud regem regum intercederent pro electo Facto sermone discessum esâ— Ut autem notuit Reginae filliâ—ni electio et viri dejectio plena dolore ut foris apparuit sere mente alienata fuit Edwardus quoque filius suus mateâ—no doâ—ori compassus juravit quod invito patre nunquem susciperet coronam regni Idcirco communi decreto ex parte totius regni tres Episcopi duo Comiteâ— et duo Abbates et de quolibet Comitatu regnitre milites ac etiam de Londoniis et aliis civitatibus et magnis villis ut praecipue de portubus de qualibet certus raimerus persoâ—arum missi sunt ad regem apud Kenelworth qui nunciaâ—ent electionem filii sui et requirerent diligenter quod renunciaret dignitati regiae et coronae et permitteret eundem filium suum regnare pro eo alioquin ipsi reddirent sibi homagia et procederent in praetactâ—s Rex autem ut haec audivit â—um stetu et ejâ—latu respondit quod multum doluit de eo quod sic demeruit erga populum sâ—i regni et ab omnibus qui aderant veniam precabatur Sed ex quo aliter elâ—e non potuit gratias egit quod filium suum primogenitum elegissent Nuncii vero ad Parliamentum Londonias rede untes cum regis responâ—o et insigniis plebem laetam fecerunt mox tota regni
and Wyrsâ—hipp that longed thereto and assoiled all your Leiges of her ligeance and obeisance that longed to yowe uppe the fourme that is contened in the same Renunciation and Cession whiche ye redde your self by your mouth and affermed it by zour othe and by your owne writing upon whiche ye made and ordeyned your Procuratours the Ersbysshopp of York and the Bisshopp of Hereford for to notifie and declare in your name thes Renunciation and Cession at Westmynstre to all the States and all the people that was ther gadyrd because of the Sommons foresayd the whiche thus don yesterday by thes Lordes your Procuratours and wele herde and understonden thes Renunciation and Cession ware pleinelith and frelith accepted and fullich agreed by all the States and people forsayd And over this Sire at the instance of all thes States and people ther ware certein Articles of defauts in your governance redde there and tho we le herd and plesnelich understonden to all the States forsayd hem thoght hem so trewe and so notorie and knowen that by the causes and as by mo other as thei sayd and havyng consideration to your owne wordes in your own Renunciation and Cession that ye were not worthy ne sufficient ne able for to govern for your owne demerites as it is more pleinerlich contened therin hem thoght that wos reasonable and cause for to depose yowe and her Commissaries that thei made and ordeined as it is of record ther declared and decreed and adjudged yowe for to be deposed and priveâ— and in dede deposed yowe and pryved yowe of the astate of Kyng and of the Lordsship contened in the Renunciation and Cession forsayd and of all the Dignite and Wyrsship and of all the administration that longed thereto And we Procuratours to all these States and people forsayd os we be charged by hem and by her auctorite giffen us and in her name yelde yowe uppe for all the States and people forsayd Homage Liege and Feaute and all Ligeance and all other Bondes Charges and Services that longe therto and that non of all tbes States and people fro this tyme forward ne here yowe feyth ne do yowe obeisance â—s to thar Kyng And he answered and sayd that he looked not therafter but he sayde that after all this he hoped that is Cosyn wolde bee good Lord to hym Joesdy le â—xiiij Doctober Lerecuesque de Canterbire chargea deper le Roy touz les Seigneurs Espirituales temporales toutz antres y estantz sur Leur Ligeance que ceo que lors serroit monstres on parlez illoeqe serroit tenuv consâ—il qil ne serroit ascunement discoverez a nully vivant Et pius apres demandez feust per le Count de Northumbr pur la seurte du Roy de touz Lestatz du Roialme Coment leure semble que serroit erdeignez de Richard nadgaires Roy pur Luy mettre saufegard Sauvant su vie quele le Roy voet que luy soit sauvez touz maners Surquoi responduz feust per toutz Les Signiars severalment examines dont les nomes si ensuent que leur semble qil serroit mys en sauso secregard en tiel Lien on nul concours dos gâ—ntz yad qil soit gardez perseures sufficientz persone que nul que este familier du dit nadgairs Roy soit ascunement entour sa persone que ceo soit fait en le pluis seâ—re manere que faire sa purra Les nomes des Seigneurs demandez assentez en La question suisditz cy ensuent Cestassavoir Lerceuesque de Canterbrie Lerceuesque Deuerwyck Leuesque de Londres Leuesque Dely. Leuesque de Nicholl Leuesque de Norwich Leuesque de Roucestre Leuesque de Sar. Leuesque Dexcestr Leuesque de Cicestr Leuesque de St. Asaph Leuesque de Cestr Leuesque de St. Davids Leuesque de Landafe Leuesque de Duresme Labbe de Westminster Labbe de St. Albon Labbe de St. Austyn Labbe de Bury Labbe de St. Doverwycke Labbe de Glocestr Labbe de Battaill Le Prince Le Duc de Nerwyck Le Count Darundell Le Count de Warr. Le Count de Staff Le Count de Northumbr Le Count de Suff. Le Count de Wircestr Le Sgr. de Roos Le Sgr. de Grey de Ruthin Le Sgr. de Cherleton Le Sgr. de Bardolf Le Sgr. de Willughby Le Sgr. de Furnival Le Sgr. de Ferrers Le Sgr. de Beaumont Le Sgr. de Berkeley Le Sgr. de Fitz Wauters Le Sgr. de Manley Le Sgr. de Scales Le Sgr. de Morley Le Sgr. de Burnell Le Sgr. de Lovell Le Sgr. de Camoi Le Sgr. de Seymore Le Sgr. de Crombwell Le Sgr. de Cobham Monsr Henr. Peircy Monsr Richard Scroop Le Sgr. Fitz Hugh Le Sgr. de Bergeueny Le Sgr. de Lomley Le Baron de Greystocks Le Baron de Hilton Monsr Thomas Erpingham Chambr Monsr Mayhew Gowinay Mr. Hall in his Chronicle fol. 10. and others relate that in this Parliament when it was demanded by the Kings friends what should be done with King Richard Thomas Menkes Bishop of Carlile which was a man both well learned and well stomacked rose up and said My Lords I require you take heed what answer you make to this question For think there is none of you worthy or meet to give judgement on so noble a Prince as King Richard is whom we haven taken for our Sovereigne and Liege Lord by the space of two and twenty years and I assure you there is not so ranck a traitour nor so arrant a theef nor so cruel a murderer which is apprehended and deteined in prison for his offence but hee shall be brought before the Justice to hear his judgement and yet you will proceed to the judgement of an annointed King and hear neither his answer nor excuse And I say that the Duke of Lancaster whom you call King hath more offended and more trespassed to King Richard and this Realme than the King hath either done to him or to us For it is manifestly known that the Duke was banished the Realme by King Richard and his council and by the judgement of his own Father for the space of ten years for what cause all you know and yet without license of King Richard hee is returned again into the Realme yea and that is worse hath taken upon him the name title and preheminence of a King And therefore I say and affirm that you do apparently wrong and manifest injury to proceed in any thing against King Richard without calling him openly to his answer and defence When the Bishop had ended he was incontinent by the Earl Marshal attached and committed to ward in the Abbey of S. Albanes And then it was concluded that King Richard should continue in a large prison and should be plentifully served of all things necessary both for viands apparel From the proceedings against
these 2. deposed Kings these 2. inferences have been made 1. That the Commons have a joynt interest with the Lords in the Judicature and Jugements in Parliament 2. That the Proceedings against our late condemned beheaded King are justifiable and warranted by them I answer that neiâ—her of these 2. Consequences are proved by them For 1. The Commons themselves in this Parliament of 1 H. 4. n. 79. immediately after King Râ—chards deposition confess That the Judicature and Judgements of Parliament belong only to the King and Lords not to the Commons 2ly The Commons neither in nor out of Parliament are may or ought to be the Judges of the meanest Lord or Peer of the Realm who are to be judged tried by their Peers alone as I have abundantly evidenced in the premises Much less then can they be lawful Judges of their Soveraign Lord and King who is a degree above all the Peers of highest dignity In the Parliament An 1260. Prince Edward as I have proved before would be tried only by 2. Kings because all the rest of the Earls and Barons were not his Peers neither could they be his Judges much less then can Peers or Commons be their Kings Judges Peers to ondemn or try him 3ly Our Law-books resolve That the King hath no Peers in his own Realm and Therefore he can neither be legally tried nor judged by the Peers themselves much less by the Commons in Parliament 4ly The Lawes of Hoel Dha King of Wales about the year 940. Lex 20. resolve Rex non poterit secundum legem in lite stare coram Judice suo agendo vel respondendo per dignitatem naturalem yea all the Lords and Commons of England in the Parliament of Lincoln Anno 29. E. 1. in their forecited Letter to the Pope p. 128. resolve That the Kings of England Ex praeeminentia status suae Regiae dignitatis ex consuetudine cunctis temporibus observata neque responderunt neque respondere debebant coram aliquo Iudice Ecclesiastico vel seculari supâ—r juribus suis in regno c. Much less then may or ought they to be put to answer criminally for their lives or Crowns before any Ecclesiastical or Temporal Judge Peers or Commons House or High Court of COMMONS 5ly The Statutes of 16 R. 2. c. 5. and of 25 H. 8. c. 19.21 thus declare resolve and the Archbishop of Canterbury in the Parliament of 16 R. 2. n. 20. protested against the Popes pretended Supremacy That the Crown of England hath been so free at all times that it hath been in subjection to no Realm or Person but immediatly subject to God and to none other in all things touching the Regality of the said Crown And the Statutes of 25 H. 8. c. 19 21 22. 26 H. 8 c. 1.3 27 H. 8. c. 15. 28 H. 8. c. 7.10 31 H. 8. c. 10.15 32 H. 8. c. 22.24 26. 33 H. 8. c. 29. 35 H. 8. c. 1.3.17 19. 37 H. 8. c. 17. 1 E. 6. c. 2. 1 Eliz. c. 1. 8 Eliz. c. 1. 3 Jac. c. 3 4. declare and enact The King to be the only Supreme Head Governor upon Earth both of the Church Realm of Engl. both of which recognize no Super or under God but only the King To affirm then that the Lords or Commons in Parliament may lawfully judge depose the King and deprive him of his Crown Regalities Head Life is to contradict repeal all these Statutes since the inferior Members can no more legally judge the Supreme head of the body politick than the head of the body natural or the Courrs in Westminster hall or Hundred Courts judge the High Court of Parliament and condemn repeal their Acts or Judgements 6ly Though Articles were drawn up against these two Kings pro forma yet neither of them was ever required or judicially summoned to make answer to them or heard or brought to trial before the Lords or Commons Barr or any other Tribunal or Court of Justice Whence the Bishop of Carlisle protested against it as most illegal unjust and trayterous Therefore neither the Lords nor Commons could be properly said their Iudges in this case and their Judgement without hearing or trial of them must needs be most erronious as well as Mortimers and the Earl of Arundels forecited 7ly The Lords and Commons resignation of their Homage to these 2. Kings when deposed shew that even then they esteâ—med them their Superiors Lords Homage being the most honourable and humble service that a franktenant may do to his Lord the tenant being ungirt his head uncovered kneeling down on both his knees before his Lord sitting covered and holding up his hands joyntly together between his Lords and the Kings hands when he doth his homage saying I become your man from this day forward of limb and of earthly worship and unto you shall be true and faithfull and bear faith for the tenements I hold of you And when done to any other Lord it is with a Saving the faith I owe unto our Soveraign Lord the King and his Heirs 8ly The Sentences of Deposition against them were given only by the Legislative power not JUDICIAL by way of Bill consented unto in the Parliament house by the Lords and Commons then sent to these Kings to their prisons and there read unto them by Committees and Proxies representing all the Estates in Parliament Therefore the reading of them to these Kings in their prisons was not properly a judgement neither did it constitute them who read it to them their Judges much less create the Commons Judges of these Kings 9ly All the Lords Spiritual Temporal and Commons concurred joyntly in this Act of resigning their Homage to these Kings to whom they were all joyntly obliged and in whom they had all a common interest Et quod tangit omnes ab omnibus debet approbari Therefore it is no warrant for the proceedings against our late King without the consents and against the Express Votes of the whole House of Lords and of the Majority of the Commons house 10ly The Lords alone without the Commons gave Judgement for the close and perpetual imprisonment of King Richard the 2. therefore they were his sole and proper Judges by way of Sentence his deposition being by the Legislative not Judicial power 11ly These Kings especially the later of them had no sentence of deposition nor proceedings against them til they had through fear or pusillanimity first resigned their Crowns and kingship as unfit to reign or govern any longer which was made the principal ground of their subsequent declaratory depositions by the Lords and Commons when they had reduced themselves into the condition of private men by their resignations These presidents therefore cannot justifie the late proceedings against an actual lawful hereditary King by a small party of the Commons house alone without the House of Peers or the Majority of their fellow-Members who never resigned his
rightfull Kings or their heirs or the Nobles and people of thâ—se Realm their possessions of the Crown being no expiation of their Treasons Regicides but an aggravation of them both in Law and Gospel account unable to secure their heads lives by their own Law and concession since the actual coronation unction and possession of the kings de Jure whom they murdered deposed against their Oaths allegeance duties could neither preserve their crowns persons nor lives from their violence and intrusion To omit he hanging up of Iohn of Leyden who crowned himself a king with his companions for Traytors at Munster An. 1535. with all antient domestick presidents of this kind among our British and Saxon kings it is very observable that in the Parliament of 1 E. 4. n. 17 18. Henry the 6. though king de facto together with his Queen Son Edward Prince of Wales the Duke of Somerset and sundry others were attainted of high Treason for killing Rich. Duke of York at Wakefield being only king de jure and declared heir and successor to the Crown after King Henry his death in the Pâ—rliament of 39 H. 6. n. 18. though never crowned and not to enjoy the possession of it during the reign of King Henry yet Henry the 6. his murder after his deposition was never inquired after though king de facto for sundry years and that by descent from 2. usurping ancestors nor yet reputed Treason After this king Richard the 3d. usurping the Crown and enjoying it as king de facto for 2. years 2. moneths and one day was yet slain in Bosworth field as an usurping bloudy Traytor stript naked to the skin without so much as a clout to cover his privy members all sprinkled over with mire and bloud then trussed like a Hogg or Calf behind a pursuivant and ignobly buried Sir William Catesby a Lawyer one of his Chief Counsellors with divers others were two dayes after beheaded at Leicester as Traytors notwithstanding he was king de facto and no doubt had not king Richard been slain in the field but taken alive he had been beheaded for a Traytor as well as his adherents being the principal Malefactor and they but his instruments So that his kingship and actual possession of the Crown by intrusion did neither secure himself nor his adherents from the guilt or punishment of High Treason nor yet the Act of Parliament which declared him true and lawfull King as well by inheritance and descent as election it being made by a packed Parliament of his own summoning and ratified only by his own royal assent which was so far from justifying that it did make his Treason more heinous in Gods and mens esteem it being a framing of mischief and acting Treason by a Law Psal 94.20 21. which God so much abhors that the Psalmist thence infers v. 23. And the Lord shall bring upon them their own iniquity and shall cut them off in their own wickedness yea the Lord our God shall cut them off as he did this Arch bloudy Traytor and his Complices though king de facto by a Law 9ly Since the Statute of 11 H. 7. c. 1. some clauses whereof making void any Act or Acts of future Parliaments and Legal process against it are meerly void unreasonable and nugatory as Sir Cook himself affirms of Statutes of the like nature there have been memorable Presidents Judgements in point against his and others false glosses on it in favour of Usurpers though King or Queen de facto and their Adherents against the lawfull Queen and heir to the Crown which I admire Sir Edward Cooke and other Grandees of the Law forgot or never took notice of though so late and memorable King Edward the 6. being sick and like to dye taking notice that his Sister Queen Mary was an obstinate Papist very likely to extirpate the Protestant Religion destroy that Reformation which he had established and usher in the Pope and Popery which he had totally abandoned by advice of his Council instituted and declared by his last will in writing and Charter under the Great Seal of England the Lady Jane of the bloud royal eldest Neice to King Henry the 8. a virtuous Lady and zealous Protestant without her privity or seeking to be his heir and Successor to the Crown immediately after his death for the better confirmation whereof all the Lords of his Privy Council most of the Bishops Great Officers Dukes Earls Nobles of the Realm all his Judges and Barons exept Hales the Serjeants and great Lawyers with the Mayor and Aldermen of London subscribed their Names and gave their full and free assents thereto wherupon immediately after King Edwards death July 9. 1553. Iane was publikely proclamed Qu. of this Realm with sound of trumpet by the Lords of the Council Bishops Judges Lord Mayor and Aldermen of London So as now she was a Queen de facto backed with a very colourable Title from King Edward himself his Council Nobles Judges and the other subscribers to it being likewise eldest Neece to King Henry the 8. of the bloud-royal For defence of her person and Title when proclamed Queen and to suppress Mary the right heir the Council speedily raised a great power of 8000 foot and 2000 horse of which the Duke of Suffolk was first made General being her Father but soon after the Duke of Northmberland by Commission from the whole Council in Queen Janes Name who marched with them to Cambridge and from thence to St. Edmunds Bury against the Lady Mary Queen only de jure not de facto But many of the Nobles and the generality of the people inclining to Queen Mary the right heir and resorting to her ayd to Fotheringham Castle thereupon the Council at London repenting their former doings to provide for their own safety on the 20. of June 1553. proclamed Mary Queen and the Duke of Northumberland hearing of it did the like in his Army who thereupon deserted him From which sodain alteration the Author of Rerum AnglicanaruÌ„ Annales printed Lond. 1616. l. 3. p. 106. hath this memorable observation Tali tamen constanti veneratione nos Angli legitimos Reges prosequimur ut ab eorum debito obsequio nullis fucis aut coloribus imo ne Religionis quidem obtentu nos divelli patiamur cujus rei Janae hic casus indicium poterit esse plane memorabile Quamvis enim Dominationis illius fundamenta validissima jacta fuissent cui et summa arte superstructum est quam primum tamen Regni vera et indubitata haeres se Civibus ostendit omnis haec accurata structura concidit illico quasi in ictu oculi dissipata est idque eorum praecipue opera quorum propter Religionis causam propensissimus favor Janae adfuturus sperabatur c. All the Martyrs Protestant Bishops and Ministers imprisoned and burnt by her humbly requiring and in the bowels of our Lord Jesus
this end â—ecorded in Matthew Paris that of the Lords being very memorable I shall here insert Sanctissimo Patri c. Devoti filii Comes Cornubiae R. S. de Monte Forti Comes Legrecestriae H. de Boun Comes Herefordiae Essexiae R. de Bigod Comes Norfolciae R. Comes Gloverniae Herefordiae R. Comes Wintoniae W. Comes Albemarliae Comes Oxoniensis alii totius Angliae Barones Proceres et Magnates ac Nobiles portuum maris habitatores necnon et Clerus et Populus universus salutem debitam tanto Pontifici in omnibus reverentiam Sic mater ecclesia tenetur filios suos confovere ipsos sub alas suas congregando ut filii sui non degenerent in obsequio matris suae sed pro matre si necesse fuerit manum suam mittant ad fortia arma et scutum assumentes pro defensione sua cuilibet discrimini se opponat de cujus uberibus lac sugunt consolationis et ad ipsius dependent ubera pietatis Mater enim filiorum uteri sui debet reminisci ne si secus fiat lactis pabulum subtrahendo videatur novercari Pater etiam à filiis suam subtrahens pietatem non Pater sed vitricus merito debet appellari cum filios naturales spurios deputat aut privignos Idcirco Pater reverende currus Israel et auriga ejus ad asylum vestrae pietatis recurrimus confidenter clamantes post vos Implorantes etiam humiâ—iter et devote quatenus ob spem retributionis divinae voces clamantium post vos dignemini misericorditer exaudire gravaminibus injuriis et oppressionibus regno Angliae domino nostro Regi multipliciter impositis ac illatis velitis salubre remedium adhibere Alioquin necesse est ut veniant scandala clamore populi tam Dominum Regem quam nos intollerabiliter impellente Quoniam nisi de gravaminibus domino Regi regno illatis Rex regnum citius liberentur Oportebit nos ponere murum pro domo Domini et Libertate regni Quod quidem ob Apostolicae sedis reverentiam hucusque facere distulimus nec ultra reditum nunciorum nostrorum qui propter hoc ad redem Apostolicam mittentur Dissimulare pocerimus quia regni Angliae tam Clero quam Populo qui talia nullatenus sustinebunt pro viribus nostris subveniamus Et nisi citius praedicta per vos corrigantur pro certo teneat Sanctitas vestra quod non immerito teneri potest quod tam Ecclesiae Romanae quam Domino regi tale periculum immanebit quod eidem remedium quod absit de facile non poterit adhiberi The King in the mean time by the Lords advice sent this Prohibition to the Clergy not to pay any Tax or Tallage to the Pope H. Dei gratia c. Venerabili in Christo tali Episcopo salutem Licet aliâs vobis scripserimus semel secundo tertio tam per literas nostras clausas quam patentes ne ad opus domini Papae vel alterius tallagium aliquod vel auxilium exigeritis à viris Religiosis clericis vel laicis cum nullum hujusmodi tallagium vel auxilium exigi possit vel consueverit sine magno praejudicio Regiae dignitatis quod nullo modo poterimus aut volumus sustinere Vos tamen mandatum nostrorum in hac parte coâ—emnentes contra provisionem per Magnates nostros tam Praelatos quam Comites et Barones factam in Concilio nostro Londoniensi concessam exactionem faciatis memoratam super quo miramur plurimum movemur praesertim cum facto vestro proprio non erubescitis contraire cum vos alii Praelati in praedicto Concilio communiter concesseritis quod nihil de exactione hujusmodi faceretis donec nuncii nostri vestri necnon aliorum Magnatum nostrorum totius universitatis regni nostri à curia Romana redirent qui pro liberatione oppressionum ad curiam illam sicut nostis fuerant specialiter destinati Vobis igitur mandatis inculcatis mandamus injungentes firmius districtius inhibentes ne ad exactionem praedicti tallagii vel auxilii faciendam aliquatenus procedatis sicut gaudere desideratis Baronia vestra possessionibus vestris quas in regno nostro tenetis Et si quid inde cepistis extra regnum nostrum asportari nullatenus permittatis sed illud salvo custodiri faciatis usque ad reditum nunciorum praedictorum indubitanter scituri quod si secus egeritis nos ad possessiones vestras manum gravaminis ultra quam credere velitis extendemus Hanc autem inhibitionem vobis in jungimus faciendam Archidiaconis officialibus vestris quam quidem pro libertate cleri populi facimus novit Deus c. The Messengers sent with these Letters to the Court of Rome returning thence thereupon the same year Die translationis beati Thomae Martyris habitum est MAGNUM CONCILIUM inter Regem et REGNI MAGNATES apud Wintoniam Wherein Nuncii memorati verba Papalia qui nihil mitigationis imo potius exasperationis tenorem continebant nunciantes affirmantes quod nec in gestu vel verbis Papalibus aliquid humilitatis vel moderationis super oppressionibus quibus tam Regnum quam Ecclesia Anglicana gravabatur et conquesta est poterant reperire Dixerat enim Papa illis aliquod optabile responsum expectantibus Rex Anglorum qui jam recalcitrat et Frederizar suum habet consilium ego vero meum habeo quod et sequar Et ex tunc vix aliquis Anglicus in Curia negotium aliquod poterat expedire imo velut scismatici repellabantur omnes probris lacessiti Haec autem cum audisset Dominus Rex cum Magnatibus suis commotus est vehementer merito praecepitque voce praeconia in omnibus Comitatibus per omnes villas et terras et congregationes publice acclatuari Ne quis per regnum Papali contributioni consentiret vel aliquid pecuniae in auxilium ejus transmitteret Quod factum est Illud autem cum audiâ—et Papa in vehementem iram excanduit iterato asperius Praelatis scripsit Anglicanis ut sub poena excommunicationis suspensionis infra festum Assumptionis nuncio suo apud novum Templum Londini commoranti de praedicto auxilio satisfacerent Et cum constanter pararetur dominus Rex stare pro regni et Ecclesiae liberatione comminationibus Comitis Richardi fratris sui et quorundam Episcoporum quorum principalis erat Wigorniensis cui a Domino Papa concessa fuit potestas terram etiam ut perhibebatur interdicendi fractus succubuit et perterritus Unde totus conatus tam Magnatum quam Episcoporum et spes de regni et ecclesiae Anglicanae liberatione miserabiliter non sine multorum cordium cruento dolore emarcuit adnihilatus et impune hiatibus Romanae a varitiae de memorata contributione
Premises THe Principal scope of the Precedent Plea for the Lords and House of Peers being only to justifie and ratifie their ancient just Right to sit and vote in all English Parliaments and Great Councils or State and their Judicial Authority in them without the Commons especially in Criminal Causes then only controverted contradicted by Lilbourne Overton their Disciples I reputed it both useful and necessary to superadde thereto some memorable Presidents in former ages which no Vulgar writers of our English Parliaments have remembred of the Kings and Lords Proceedings Judicature in Parliament in Civil and Ecclesiastical Causes of publick and private concernment as no way heterogeneal but homogeneal to my Theam to make this Plea more compleat and communicate some more knowledge of Parliamentary Affairs and Proceedings both to the Ignorant and Learned in this declining age wherein learning and learned men of publick spirits in all Professions are so much decayed and little Visible Probability left of any speedy reparations of this inestimable losse for want of publick encouragement I shall proceed herein only in a Chronological Method as I have done for the most part in the premises beginning with the ancientest president I meet with of this kind and so descending to succeeding ages About the year of Christ 536 Our famous Brittish victorious King Arthur by his Letters and Messengers summoned all the Kings Prelates Dukes and Nobles subject to him to meet at the City of Caerleon on the feast of Pentecost then to be new crowned and settle the peace and affairs of his Realmes whereupon there assembled at that time and place thirteen Kings three Archbishops and many Princes Dukes Consuls Earls and LORDS whose names are registred in Geoffry Monmouth whiles they were thus convened there arrived twelve men with letters from Lucius Tiberius procurator of the Roman Republick demanding in high language The Tribute of Brittain which the Senate command King Arthur to pay with the arrears injuriously detained because Julius Caesar had reserved it upon his conquest of Brittain and hee with other Romane Emperours had long received it summoning him likewise to appear at Rome in August the year following to satisfie the Senate for the injuries done them and submit to the sentence their Justice should pronounce or else denouncing war against him This Letter being publickly read before all the Kings Princes Dukes and Nobles present the King consulted with them craving their unanimous advise and sense concerning this business affirming That this Tribute was exacted ex irrationabili causa against all reason for he demanded it to be payd as due because it was paid to Julius Caesar and his successors who invited by the devisions of the old Brittains arrived with an Army in Brittain and By force and violence subjected the Country to their power shaken with domestick commotions Now because they obtained it in this manner vectigal ex eo injuste receperunt therefore they unjustly received tribute out of it Nihil enim quod vi violentia acquiritur juste ab â—llo possidetur qui violentiam intulit irrationabilem ergo causam praeâ—endit qua nos jure sibi tribitarios arbitratur For nothing which is acquired by force and violence is justly possessed by any man who hath offered the violence Therefore hee pretends An irrationable cause whereby hee reputes us to be Tributaries to him c. The whole Council upon debate fully assented to this opinion and promised the King their assistance against the Romans in this cause Whereupâ—n King Arthur returned this answer That he would by no mâ—ans render them tribute neither would he submit himself to their judgement concerning it nor repare to Rome c. An expresse resolution That Conquest by warr force and violence is no good just nor lawful but an unlawful and unjust Title to any Tributes or Possessions which these who now pretend they are Conquerors and us a meer conquered Nation and therefore they may impose what Taxes Excises Tributes Laws Executions they please upon us when as they were only raysed waged commissioned to defend preserve our Laws Liberties King Parliament and Kingdomes not to conquer or enslave them may do well to consider In the year of our Lord 799. King Kenulfus upon the petition and complaint of Athelardus Arch-Bishop of Canterbury consentientibus EPISCOPIS ET PRINCIPIBUS MEIS assembled in a Parliamentary Council restored four parcels of Lands to Christ-Church in Canterbury which King Offa heretofore had taken from this Church and conferred on his Officers Kenulfus King of Mercia calling a Provincial Council held at Cloveshe Anno Dom. 800. wherein all the Bishops Dukes Abbots and Nobles of every order were assembled complaint was made therein that after the death of Arch-Bishop Cuthhert Verheb and Osbert led by a malignant spirit stole away the evidences and writings of the Monastery of Cotham and all the Lands thereunto belonging given by King Athelbald to our Saviours Church in Canterbury and brought them to Kenulfus King of the West-Saxons who thereupon converted the said Monastery and Lands to his own use After which â—regwin and Jambert Arch-Bishops of Canterbury complained of this injurie done to the Church in sundry Councils both to King Kenulfus and Offa King of Mercia who took from Kenulfus the Monastery of Cotham with many other Lands and Towns and subjected them to the Realme of Mercia At last Kenulfus induced by late repentance restored the evidences and writings of the said Monastery together with a great summe of mony to the said Church to prevent the danger of an excommunication but King Offa as hee received the said Monastery without writings so hee retained them during his life and left them to descend to his heirs without any evidence after his death whereupon Athelardus the Arch-Bishop and other wise men of Christ-Church brought these Evidences and Writing touching Gotham into this Council of Clovesho where when they had been publickly read OMNIUM VOCE DECRETUM EST that it was just the Metropoliticall Church should bee restored to the said Monastery of which shee had been unjustly spoiled for so long a time Athelardus receiving also in this Council the dignities and possessions which King Offa had taken from Jamberâ— annuente ipso Rege as Gervasius records In a Council held at Clovesho Anno 813. Upon complaint of the Arch-Bishop of Canterbury the Arch-Bishoprick of Litchfield was dissolved and the Bishopricks annexed to it by King Offa taken from the See of Canterbury restored and reunited thereunto by the consent of King Kenulfus his Bishops Dukes and Nobles who writ a Letter to Pope Leo for that purpose unanimo consilio totius sanctae Synodi And in this Council also other lands were restored to the Bishop of Worcester and other controversies between Bishops concerning their Lands and Limits decided In another Council at Clovesho Anno 821. Wherein King Kenulfus Wulfred Arch-Bishop of Canterbury with the rest of the Bishops Abbots
Judg. 17.2 3 4. Exod. 22.1 to 16. Levit. 6.4 5. ch 24.17 to 22. ch 25.27 28. Judg. 11.12 13. 1 Sam. 12.3 4. 2 Sam. 9.7 ch 12.5 6. ch 19.9 to 43. 1 Sam. 7.13 14. 2 King 14.22 Ezra 1.7 8 9 10 11. ch 6.5 which warrant the judgement and restitution they then awarded together with this memorable Act of resumption of the Crown Lands Rents and Revenewes alienated and given away by King Stephen to many Lords and Soldiers to maintain his usurped Title to be just King Henry the 2d Anno 1155. Praecepit eacum omni integritate infra tempus certum a quibuscunque deteâ—toribus resignari in jus statumque pristinum revocari Quidam vero indies carâ—as quas a Rege Stephano vel extorserant vel obsequiis emerant quâ—bus tuti forent protulerunt pleading them in barre against the Kings resumption Quâ—bus fuit a Rege responsum and let those who have purchased or gotten any of the Crown Lands Rents Revenewes by gift or otherwise now remember it Quod carâ—ae Inbasoris praejudicium legitimo Principi minime facere deberent Primo ergo indignati deinde territi consternati aegre quidem sed integre Usurpata vel diu tanquam solido â—ure detenta omnia resignarunt their Charters being all adjudged voyd eisdemque instrumentis minime tuti esse potuerunt as Nubrigensis and Brompton inform us The great and long suit between William de Stutevill and William de Moubray which had continued many years in the Kings Courts concerning the Barony of Moubray was ended in a Parliamentary Council by a final award there made between them that William de Stutevil should release all his right and claim to the Barrony to William de Moubray hee giving him nine Knights fees and twelve pounds Annual Rent for this release cumque super hoc diu certatum esset tandem Anno 1200. the 2d of King Johns Reign concilio Regni et voluntate Regis pax finalis concordia facta est inter praedictos as Roger de Houeden relates who records the agreement at large King Henry the 3d. Anno 1236. in a Parliamentary Council held at York Consilio sultus Magnatum Regni ended the controversie between himself and Alexander King of Scots touching the Lands King John had granted him by his Charter in Northumberland ratified by the subscriptions and assents of his Nobles Earles and Barons Anno 1237. Rex scripsit omnibus Magnatibus suis to appear before him and the Popes Legat at York de arduis negociis regnum contingentibus tractaturis where the difference between King Henry the 3d. and the King of Scots summoned to be present at this Parliament touching his Lands in England were finally determined and a firme peace made between them the King of Scots being to receive three hundred pound lands a year in England sine castri constructione homagiumque Regi Angliae faceret faedus inter eos amicitiae sanciretur hoc se fideliter facturum Regi Angliae conservaturum juraret After this Anno 1244. King Henry summoning all the Bishops Abbots and lay Barons to present all their military Services to him marched with a great army to New-Castle against the Scots who had fortified two Castles harboured rebels against the King and made a peace with France against their former Covenant and League VVhere to avoid the effusion of Christian blood which will cry to God for vengeance congregata Vniversitate Angliae Nobilium apud memoratum castrum tractatum est diligenter super tam arduo negotio Concilio habito circa Assumptionem beatae Maria dligentissimâ— Wherein the NOBLES made an agreement between the Kings of England and Scotland Alexander King of Scots by his special Charter recorded in Matthew Paris promising and swearing for him and his Heirs to King Henry and his Heirs quod in perpetuum bonam fidem eis servabimus pariter amorem c. Most of the Prelates Earles and Barons of Scotland sealing the charter with their Seals and swearing to observe it inviolably as well as their King In the Parliaments of 18 20 21 31 33. Ed. 1. There were many Pleas and Actions for Lands Rents and civil things as well as criminal held before the King in Parliament and adjudged resolved in these Parliaments by assent of the King and advice of the Lords the Kings Judges and Council learned in the Laws there being a large Parchment Volume of them in the Tower of London where all may peruse them some of them being also entred on the dorse of the Clause Rolls of these years Pasche 21. E. 1. Banco Regis Northumberland Rot. 34. John le Machon a Merchant lent a great summe of mony to Alexander King of Scots who dying his Son and Successour refused upon petition to pay it Whereupon hee appealed to the King of England for right propter suum supremum Dominium Scotiae Thereupon the Sheriffs of Northumberland by the Kings command accompanied with four men of that County went into Scotland to the Scots King and there personally summoned him to appear in England before the King of England to answerr this Debt After which all parties making default at the day the Merchant was amerced The King of Scots afterward appeared before the King but at the first time refused to answer at last hee desired respite to bee given him that he might advise about it with his Council of Scotland promising to appear at the next Parliament and then to give his answer And in Placit coram Rege Trin. 21. E. 1. Scotia there is an Appeal to the King of England between subjects of Scotland in a civil cause tanquam superiori regni Scotiae Domino And Clauso 29. E. 1. dorso 10. there is a letter of all the Nobles in Parliament to the Pope de Jure Regis in regne Scotia forecited p. 127 128. and Claus 10. E. 3. dorso 9. The King of Scots is stiled Vassallus Domini Regis Anglia It appears by Claus 5. E. 2. M. 30. that in a Parliament held at Stanford 3. E. 2. a business touching Merchandize and a Robbery on the Sea was heard and decided before the King and Lords in Parliament between the Earle of Holland who sent over a Proctor about it and others Claus 8. E. 2. m. 15. The Petition of David Earle of Ascelos in Scotland by the Kings command was read in full Parliament before the Prelates Earles and Barones that hee might be restored to his inheritance in Scotland to which it was answered by all their Assents that his inheritance was forfeited by his Ancestors for offences by them committed c. but yet the King would give him some other Lands for it In Claus 12. E. 2. it appears that the Popes Legate came into the Parliament and petitioned the King and Lords for a Legacy given by the Bishop of Durham Patriark of Jerusalem lately dead for which the King by assent of the