have shewed it unto them as indeed it was not then usuall But I shall aske the Gentleman whether he will justifie all the proceedings in that Cause as standing with the Common Justice of the Realme Certainly it would be now by many thought very hard for a person in custody to be first examined privately upon his own Oath to accuse himself and then without being further proceeded with by Law to have the Judgement in effect of a Traitor for killing a Person apparently not within the Statute of 25 Edw. 3. doubtlesse so farre as it appeares to me this may be one of those Presidents whereof Sir Edward Cooke aufereat oblivio si potest si non utcunque silentium tegat Of which opinion the Commons it seemes were who however they let it then passe he not pleading the priviledge of a Commoner yet took care it should not be so any more And it is observable that they desire no such Accusation should be received in Parliament but in His Majesties other Courts Come ad este fait use anciennement en temps de vos tres nobles progenitors c. Which affirmation is indeed as much as is stood upon viz. That it was not the use to try a Commoner in Parliament 17. His second proof 1 Hen. 4. nu 79. Where the Commons affirme Iudgements in Parliament pertaine onely to the King and Lords c. You may see the record at large in his book pag. 37. and M. Lylburnes called the Lawes funerall pag. 16. and sets in the Margint nota and pag. 38. That it is so full and punctuall a Parliamentary decision as is uncapeble of any answer or evasion To this if I should answer that it was no Act of Parliament and therefore bindeth not in succession nor is now by consequence of any force I followed no lesse Lawyer then Sir Edward Cooke but I confesse that passage seemes to me a Declaration of what of right did in any Parliament belong to the Lords and Commons and therefore to be more then temporary I shall therefore say that this President must extend onely to such things which were of the cogniscance of the Parliament and proper for that Judicature not of things did no way at all appertain unto that Court Rot. Parl. 13 Rich. 2. nu 10. after hearing a very long case the Record notes Ysembla as Seignieurs du Parlement que la dite petition n' estoit pas petition du Parlement einz que la matiere enycelle compris dent este tryepar la come ley Certainly they seeme not to have been Judges in that case nor in another Petition Rot. Parl. 16 Rich. 2. nu 32. To which the Answer is Suent a Roy purce que ceste petition n' est pas petition del Parlement Rot Parl. 10. Hen. 6. nu 35. The Commons affirme matters touching a mans Inheritance are not examinable in Parliament and 32 Hen. 6. nu 27. a President himself remembers page 51. it is expresly said Actions at Common-law be not determined in the High Court of Parliament By all which it is manifest those words that Judgements perteine to the King and Lords must be understood of such things whose decision is proper and perteine legally onely to the Parliament such was that 27 Hen. 6. nu 18. touching placing the Lords in Parliament and that was given 1 Hen. 4. in Parliament against the King himself of which the Commons seeme to have had no knowledge 1 Hen. 4. nu 145. which when the like came again in question Rot. Parl. 39 Hen. 6. nu 12. in the case of the Title of the Duke of York The Lords in Parliament charge the Iudges sadly to advise touching it who the 20 of October Answer That they were the Kings Iustices to determine matters in Law between party and party That this was above the Law and passed their Learning that the decision of it perteined to the Lords of the Kings blood and the Peerage of the Land and therefore they desired to be excused of giving Councell in that matter Now indeed in such cases I shall not deny but the King and they may be Judges Yet whatever that priviledge is in judging when they make a Law to binde the Subject concerning any thing of that nature to that the Commons are parties as well as the Lords See 7 Hen. 4. cap. 2. 25 Hen. 8. cap. 22. 28 Hen. 8. cap. 7. 35 Hen. 8. cap. 1. 18. To his next president of 17 Rich. 2. nu 20 21. touching Tho Talbots conspiring the death's of the Dukes of Lancaster and Glocester I have Answered before nu 12. That it was by the Lords onely referred to the Common-law 19. His next president is that of the Earl of Northumberland 5 Hen. 4. nu 12. which being no Commoner is nothing to the purpose as himself consesseth page 29. and page 41. Onely touching the Protestation of the Lords it is apparent they then had an opinion the King would have tryed him a Lord by the Judges without them who were his Peeres And for the Kings giving Judgement against Henry and Thomas Percy he well knowes there was no person then Judged or brought into Judgement onely an opinion of the King and Lords delivered upon a desire of the Archbishop of Canterbury who conceived himself and the Duke of York in some suspition of having adhered to Hotspur and the Earl of Worcester whom the Earl of Northumberland then newly cleared by them did free from having had any complyance with them Yet so as the King and Lords did affirme the warre formerly raised by them should be held Treason So indeed judgeing no man but delivering an opinion that a War raised by two whereof one was slaine in Fight the other beheaded the next day at Shrewesbury should be held Treason of which there was little question His next President is that of Weston and Gomenis to which though I have answered before nu 15. in the case of Hall their offences having been committed beyond the Seas and therefore not Tryable by an ordinary way in England and now taken away by Statute Yet it is apparent that Judgement was an Act of Parliament passing at the request of the Commons by the assent of the Lords and stopt till the King could be informed 20. His next is that of Alice Perers against whom Iudgement of Banishment and forfeiture of Land was given by the Lords without the King or Commons This is the onely President that hath most colour of truth and to his purpose in all his Book And whether she a person that laboured then under the publique hate for her many leud carriages might not have somewhat acted against her not fit to be observed at other times I cannot tell it appearing by record the Law on which that Judgement was grounded of the 50 Ed. 3. did passe without ever calling her to answer But for my part I doe affirme this
me to defend those mens Actions whom I neither know nor their carriages but their Cause and that too no farther then as it hath reference to the liberty of a Commoner of England being judged by the Lords Yet I cannot but say I have heard they have been great and long sufferers and by the English proverb we may give Loosers leave to speak such being the frailty of humane nature that laesa patientia fit furor Neither are they alone involved in the case There is a noble Knight and four grave Aldermen who have been Magistrates in one of the famous Cities of Europe who all of them have put out their Protestations in Print which he found perhaps more difficult to confute then to neglect But for their refusing to Answer and contemning the Lords Authority to their faces at the Bar. To this I must needes say that for my part I did never hear that refusing to Answer in a Court and demurring to the excesses of any Court was ever reputed a Contempt of the lawfull jurisdiction of that Court we all remember when certaine Gentlemen refused to Answer in the Star-chamber and pleaded against the Jurisdiction of that Court Yet neither the King nor the Lords excepted against their so doing And in the end their demurrer was allowed It is no contempt to affirme a Court hath not Authority in an especiall case that is to be determined by the Law to which every man is to submit And in a case of Imprisonment without any limitation of time certainely the Law ought be very clear that deprives a free-subject of that liberty is so much to be prised And if a Subject may not demurre to the Jurisdiction of any Court every Court may enlarge it's Jurisdiction and pretend what dormant Rules and Priviledges it pleaseth upon all occasions and become a faction of Tyrants over the People they being disabled to defend themselves from such encroachments and demurre to their Jurisdictions when they exceede their limits A Demurrer is a Dilatory plea not a contempt 10. For their appealing from their Iudicature in case of breach of Priviledge of which themselves alone and no others are or can be Iudges I answer the thing now in Question is whether they have a Priviledge to Judge Commoners It is said in Master Justice Huttons Argument that every Prerogative of the King containes in it self matter of prescription and by consequence is not against any established Law So may I say of the Priviledges of either House that they are such as are not against any Statute Law And that the continuall practice of all Ages hath made known to the world but more to themselves and therefore they are the Judges of them But if a question be of their Priviledges or it be doubtfull whether they can doe a thing or not Their Judgement is not to be received tanquam ex tripode they delivering it not by Inspiration but by Inquisition and therefore are bound to certifie themselves by all humane meanes whatsoever of the truth of every circumstance as by hearing the Kings Learned Councell the opinion of Judges Presidents of former Parliaments Practice of other Courts in the like cases and such like And this was the manner of their proceedings 32 H. 6. when though the Justices after mature deliberation had among themselves resolved they ought not to determine the Priviledges of the High Court of Parliament Yet the chief Justice shewed the example of other Courts on which they grounded their Sentence according to Law And yet that case was in the point of their Speaker a principall Member of the Commons and of a difference between him and the Duke of York one too of the House of Lords Neither may they extend their Priviledges farther then the Law warrants to which purpose there is of late years a notable President Henry Lord Cromwell having an Attachment served on him out of the Chancery for not obeying an Injunction contrary to the auntient Priviledge and Immunity time out of memory to the Lords of Parliament whereof the said Lord Cromwell prayed remedy The Lords having examined the case in Parliament in the presence of the Iudges and others the Queens learned Councell and upon hearing of their opinions it not appearing unto them that the said Attachment was warranted by the Common Law Custome of the Realme or by any Statute or President of the Chancery they did order the said Lord Cromwell should be discharged from the said Attachment Yet with this proviso That if at any time during this Parliament or hereafter in any other Parliament there shall be shewed sufficient matter That by the Queens Prerogative or by the Common Law or Custume of the Realme or by any Statute Law or sufficient President the person of any the Lords of Parliament in the like case is or ought to be attached or is attachable then from thenceforth that to take place which shall be so shewed or warranted c. by which it is manifest the priviledges of the Lords are and must be regulated by Law and by the opinions of the Judges and Lawyers and the practice of other Courts are to be known before any resolution taken And it may be farther observed that when any of the Houses have concluded on a Priviledge without that mature care it hath not continued of which for the Lords House there is a strong President 15 Ed. 3. where the Prelates Earls and Barons affirming with one consent that the Peers of the land ne deivent estre aresnez in menez en jugement si non en Parlement par lour Peres c. The Judges opposing it lasted not long being taken away as the printed Book shews the same year or certainly the Parliament next following And for the House of Commons to speak of later times that House having signified to my Lord Keeper That by the auntient Liberties of that House no Member of it ought to be served with a Sub pena out of Chancery The Lord Keeper did not onely refuse to recall his Sub pena but told the Messengers sent unto him he should not submit to any opinion of that House touching their Priviledges unlesse they could shew the same to have been allowed likewise in Chancery And of the same opinion was Egerton 39 Eliz. By all which it is evident the Law and perpetuall Custome must be the foundation of all their Priviledges 11. Neither the Voting in one or both Houses a right of doing a thing or the having somtimes exercised what they concluded upon prove it justly done or that they have by Law a Priviledge to doe it if stood upon or that it ought to be It is now generally held No Member of either House can be Bayle for any before the Lords without leave of the House whereof they are Members yet the 13 Rich. 2. the Bishops of Lincolne and Norwich undoubtedly of the Lords House and Iohn de Nevill and Levell Members
in the printed Book The gentleman cites this President I entreat him to peruse the Roll again and tell me if there can be possibly one more punctuall against the Lords judging a Commoner A servant attending a Member comming to Parliament is wounded The Lords and Commons doe not so much as attempt to Try and Censure the doer of it and the Judgement given is by Act of Parliament lesse then what both Lords and Commons hold but sufficient And the Party is allowed his Tryall by Jury in an ordinary Court of Justice 13. The 28. Hen. 6. The Commons impeached the Duke of Suffolk who waived his Peeres and the King gave Judgement but during the sitting of that Parliament The Lords being assembled in the Star-chamber in Councell the 28 of Novemb. Will Talboyes Esquire and others arrayed with Iacks Salets Swerds and Glaives in manner of Warre attempted to have slaine one of the Lords of Parliament and of His Majesties privy Councell there Assembled which being one of the most odious riots had been seen in the Kings time The Commons then sitting declare their detestation of the fact and impeach the said Talboyes and desire he may being then imprisoned in the Tower of London remaine there for 12 moneths and to answer the same in His Majesties Court in presence of his Justice but the thing desired being not altogether according to the course of the Common-law the Subjects undoubted birth-right was denied by the King and stopt and no proceedings against him in Parliament ever thought on I should be tedious to repeat the Examples of Murthers Riots Rapes and other misdemeanours complained of in Parliament and yet the Lords not at all attempting to Judge the offenders being a Commoner but onely to provide a faire Tryall should be had in the Kings Bench or other ordinary Courts of Common-law against him and sometimes by Statute desire to increase the punishment at the Common-law which had been vain had it been in their power Arbitrarily to have censured the Offender Such as would see them may amongst others read Rot. Parl. 13 Rich. 2. nu 11. 11 Hen. 4. nu 37 38. 11 Hen. 6. nu 12. 43. 15 Hen. 6. nu 13 14 15. 18 Hen. 6. nu 28. 23 Hen. 6. nu 42. And here I thought to have ended the Presidents I have observed in this case but that of Cambridge comes so fit that though it have been touched by others formerly I cannot but set it down somewhat more fully Unto Rich. 2. There was a great complaint in Parliament against the Major Baylifs and Cominaltee of Cambridge for some complyance in a late commotion against the University the Commons of that Town in their defence by their Councell plead against the Jurisdiction of the Court Que ceste Court n'ent doit avoir coniscance ne Iurisdiction The Lords moved affirme if they will give no other Answer they will proceed against them as men that know not what to say In the end a middle course is taken The Major and Citizens submit themselves to the Kings Ordinance touching onely their Franchises by vertue of which submission the King by the assent of the Lords seized the Franchises of the said Town And in the end committed to the Chancellor and Schollers the cognizance and punishment of defaults in the Assize of Bread Wine and Beer and of Flesh Fish c. And the rest of all the Franchises bestowed on the Major and Bayliffes againe This Ordinance gave no content to the Commonalty there who often molested the Schollars indicting them on true and sometimes on feined pretences Whereupon the Chancellor and Schollars about 7 yeares after framed a Petition to the Parliament against them which was sent down to the Major and Bayliffes of Cambridge commanding them to appear before the King and His Councell the next day after Candlemas with sufficient instructions and power to Answer all things for the Cominalty there under the Common-seal of the Town At which time the Major and Bayliffes came into Parliament but the Cominalty would not give them Authority to answer for them whereupon nothing was done of which contempt there is no question but we should have found some prosecution in that or some following Parliament but that not submitting the Lords knew they had no power to Try and Judge them being Commoners 14. And to speak seriously if the Lords may Try a Commoner they may Judge any mans title to his Lands for no Law limiting the extent of their power but that being Arbitrary it may reach to all causes whithersoever they will stretch it and so Westminster Hall sit quiet And the Subject of England hath not desired an illimited power no not in the two Houses and have therefore moderated Parliaments that they should not subvert the Lawes of the Land See 1 Hen. 4. cap. 14. 4 Hen. 4. cap. â—3 sometimes by expresse words determining that some things cannot be done in Parliament as that any should be impeached there of that concerns his Franktenement or hereditament c. Rot. Parl. 10 Hen. 6. nu 35. And as there is no limit of their power so being directed by nothing but their will either in judging what is an Offence or punishing of it they alone or with the Commons may alter the Law for ubi non est lex non est transgressio Rom. 4. 15. And if they can question and punish a man at their wills for that is neither Malum in se nor Malum prohibitum that is for that is no offence either by the Common or Statute Law a man may suffer by Fine Imprisonment or farther for that the Law takes no notice to be an Offence which is contrary to Magna Charta cap. 29. and a plain change of the Law which cannot be made but by the King and the three Estates in Parliament 15. Having thus shewed the Antiquity continuance inconvenience if otherwise of this Law There remaines onely to answer some presidents the Gentleman hath alledged as if the Practice had beene alwayes othrewise of all which though I might affirme with my Lord Cooke in Slades case lib. 4. fol. 94. that being never questioned nor confirmed by Judgements given when the case was stood upon they ought not to be regarged yet I shall shew him not one of them is at all to purpose every circumstance considered His first then is that of John Hall who killed the Duke of Glocester at Calice whose case yet he confesseth was not Tryable but in Parliament 16. Whether the King Lords had not cognizance of the fact of a Commoner so hainous not Tryable by the CoÌ„mon Law as this was not is a question I wil not now dispute That being absolutely taken away by Statut. Besides I am not satisfied this was not by Act of Parliament with the Commons consent for at the end of the Roll they thank the King for his just Judgement who yet never is read to