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
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
STATUTE provide not that remedy Compare Articulii super chartus chap. 3. 417. with the Register fol 185. 187 c. But this being a Superiour Court is a greater question in which there will fall out a great dispute how farre and in what sense the two Houses are the High Court of Parliament which I intend not at this time to enter into but will conclude remembring that true advise of Master Prinne That who shall so suffer shall have the comfort of a good Conscience to support him and God no doubt will in his good time finde some meanes to relieve him FINIS ERRATA Page 2 line 2. r. a Commoner ibid. l. 11. r. * Unusquisque c in marg adde * Leg. H. 1. c. 31. ibid. l. 28. r. per partes p. 4. l. 4. r. Sir Edward ibid. l. 16. dele ipsum de read oportebit judicare secundum ipsas p. 11. l. penult r. no crime p. 15. l. 23. dele by lin antepenult r. ni p. 18. l. 22. r. rayling p. 19. l. 20. r. ought not p. 21. l. penult r. hath been p. 22. l. 1. r. Quinto Rich. 2. a Mals de Pontif. in vita Aldred fo 154. b. 9. b Mat. Par. An. 1215. pag. 254. l. 20. c 2 〈◊〉 Accion sur le case 25. d Coke Inst. 2. p. 210. Coke Inst. 2. p. 29. e See M. Pyrus Plea for the Lords p. 29 f Leg. H. 1. cap. 70. cap. 87. g Leg. H. 1. cap. 5. * Mat. Par. An. 1208. p. 227. h Epist. Innocent 3. apud Mat. Par. p. 266 46. â— n. 1215. i M. Par. An. 1227. p. 337. k M. Par. An. 1234. 22. Edit 1640. l Inst. 2. p. 51. m Inst. 4. p. 43. n M. Pryns plea for the Lords pag. 18 30 36 45. 1 Ioh. 3. 4. Rom. 7. 7. o 50 Ed. 3. 〈◊〉 51. p Inst. 3. pag. 28. 30. pag. 29. n. 12. 13. The 4. Febr. 27 Elizab. there was onely 4. Earls 1. Viscount 18 Barons The 29 Elizab. 15 Febr. 3. Earles 1. Viscount 15 Barons q Rot. Parl. 15 Edw. 3. n. 42 50. Edw. 3. n. 48. See no. 10. r Rot Parl. die Lunae prox post festum sanctae Kathcrinae nu 6. M. Prins Plea for the Lords pag. 35. That the Commoners then judged did not demurre to their Iurisdiction argued their Ignorance but the 4 Aldermen Sir I. Maynard M. Lilburne Overton better understanding their ownright are not to be concluded by their lachesse and have demurred pag. 36. cap. 1. s Dyer so 60. t Rot. Parl. apud Lecester 2 H. 5. n. 16. u pag. 26. x Parl. apud Reding 32 H. 6. n. 27. c. y Iournall of the Lords House 14 El. Iune 30. z Rot. Parl. 15 Ed 3. n 7. n. 42. a Rot. Parl. 17. Ed. 3. n. 23. 27. b Iournal des Comes 27 Eli Feb. 10 11. c Rot. Parl. 13 Ric. 2. n. 16 17. d 23 H. 6. cap 15. e Rot. Parl. 16 Rich. 2. n. 6. 13 14. * Iournall of the Commons f Rot Parl. apud Glocest. 2 Rich. 2. n. 23. pag. 36. Vide pag. 66. g Rot. Parl. 4 Edw. 3. n. 16. h Rot. Parl. 3. Rich. 2. n. 18. Term. S. Hill 3 Ric. 2. Rot. 31â— i Rot. Parl. 17 Rich. 2. n. 20. k Rot. Parl. 5 Hen. 4. n. 78. cap. 6. l Plea for the Lords p. 48 m Rot. Parl. 29 H. 6. n. 5. 6. To be transmitted over and to have a fair Tryall in the Kings Bench was the continuall desire of Sir Iohn Maynard the 4 Aldermen Lieut Colonell Lilburne c. n Rot. Parl. in crastino Anim. n. 45. num 57. Rot. Parl. 13 Rich. 2. n. 14. o Fortescu cap. 9. fol. 25. b. Rot. Parl. 6 Hen. 6. nu 22. The King that dead is in his life ne might by his last will nor otherwise alter change or abrogue the Law without the consent of the three Estates c. p Plea for the Lords pag 36 37. q 1 H. 4. c. 14 r Cook Instit. 4. pag. 37. s Rot Parl. 1 H. 4. n. 144. t Rot. Parl. 1 H. 4. n. 79. Cooke Instit. 4. pag. 23. pag. 38. pag. 39. pag. 41. 42. pag. 42. u Rot. Parl. 51 Edw. 3. n. 89 x Rot. Parl. 50 Édw. 3. n. 45 y Rot. Parl. 1 Rich. 2. n. 43. z Walsing Histo. pag. 198. an 1377. 1. R. 2. nu 43. pag. 43. a Rot. plâ—cit Coro 21 Rich. 2. n. 15. 17. pag. 43. b Rot. Parl. 8 Rich. 2. n. 12. c Rot. Parl. post festum sancti marcae 7 Rich. 2 nu 13 pag. 43. d Rot Parl. 32 H. 6. nu 46. e Cook Instit. 4. p. 3 Edw. 3. Coro 161. f Rot. Parl. 7 Rich. 2. nu 14 post â—est S. Marti g Rot. Parl. 15 Rich. 2. n. 21. h Stat. 2. 6 Rich. 2. cap. 1. i Rot. Parl. in Octavis sancti Michael n. 16. et en tierce semaine de quaresme nu 17.
aime at an Arbitrary power to carry on their designes that the Lords without any presentment upon Oath or tryall by Iury may upon a bare information and examining of certaine Witnesses proceed against any Commoner whatsoever and that to deny this or not submit unto them is a breach of the Priviledge of the House of Peeres And a great Lawyer of late hath writ a Tract to justifie their Sentencing Fining and Imprisoning any Commoner and handling all who refuse to answer to them and by pen defend their so doing as contemners of their authority ignorant sottish Sectaries illiterate Ignoramus's altogether unacquainted with our Histories and Records c. To which I must needs say to answer once for all that this is not a sincere way of treating the matter in question to make the world beleeve there are none but such as contemne the authority of Parliament ignorant persons and the like which beleeve this when I dare boldly say of such as have studied and understand the question foure parts of five are of that opinion And himselfe pag. 45. holds their indubitable right of Judicature of Commoners to be but in extraordinary cases of Treason Felony Trespasse and Misdemeanors tryable onely in Parliament which if he shall be pleased to enumerate what they are that cannot elsewhere be tryed I shall not much differ with him but that the tryall of such offences might be proper for Parliament but such I confesse I know none And to make that a crime which no knowne Law calls a crime is against the Apostles definition of one Sinne is the Transgression of the Law and againe I had not knowne sinne but by the Law It is likewise against the Lawes of this Land 7. Before I passe farther it will not be amisse to agree upon the Question which is not Whether upon the Petition of the Commons and that passing the Lords House the King assenting to it a Commoner may not be condemned it being indeed then an Act of Parliament such were those of 50 E. 3. against Richard Lions William Ellis c. which were confirmed by the King at Eltham Neither if the King and Lords which I neither affirme nor deny can censure in some cases a man according to Law doth it therefore follow the Lords alone can cause a Commoner to be fined imprisoned or executed It being certaine the King for ratifying any such thing in Parliament must be present in his naturall capacity of which there needs no other instance then the last I mentioned of the 50 E. 3. when the King being sick sent for the Lords and Commons to Eltham which certain he had not done had there been any other practiced way for confirming what he intended to passe besides his owne presence before the Statute 33 H. 8. cap. 21. which yet enacts that every law confirmed in his absence shall be both under his Seale and signed with his hand of which the last is certainly personall Neither is it the Question Whether the Lords can judge such cases as come into their House according to the Statute 14 E. 3. c. 5. Stat. 1. or give Judgement upon a Writ of Error on a Cause legally brought thither out of the Kings Bench. Neither do I impugn but that their opinion is of great Authority in point of Law every circumstance rightly considered before their delivering of it of which an undoubted one I conceive to be the knowing what the Law is by the Judges or other who best understand the thing in question for if otherwise it is contrary to sense to imagine a few Lords of whom not many are usually skilled in the Lawes and being out of the House are but like other men should within those walls as it were by inspiration be the supreame Judicature of the Realme There must at the tryall of a Peere be at least 12. or above who have ever assisting them some of the Judges to advise the Lord Steward and them what the Law is who comming up to the House of Peeres may direct the Judges who have spent much time in studying it what the Law is This is so clear it needs no proof else I could shew where the opinion of the Judges not taken the Judgement of the Lords was soon made voide And in other where being given according to their sense it remaines Law to this day But the Question is whether the Lords alone upon a bare Information for a Triall by Jury they use not nor ever did to my knowledge without the King can Try and Censure any Commoner to his Detriment either in his Person or Estate 8. First And this I conceive they cannot being not certain to be de Vicineto Secondly Because in point of Life no Commoner can ever Try a Lord of Parliament Thirdly Because the party Accused cannot challenge any of the Lords his Tryers c. Fourthly Because it is expresly enacted 4 Edw. 3. that they should never have any power of so doing which because the Act it self is not Printed and is by some said to be onely a Protestation I will therefore for the clearing of it set down at large Concordia ne trahatur in consequentiam Et est affentu accorde par nostre Seignieur leRoy touz les grantz en plein Parlement que tout soit il que le ditz peres cōe juges du Parlemēt empristrent en la presence nostre Seign le Roy a faire a rendre les ditz jugemēts par assent du Roy sur aucuns de ceux que n'estoient pas lour peres ce par encheson de murdre de Seig. Liege destructiō de celui que fut si pres de sank Royall fitz du Roy que per tant les ditz peres q' ore sont ou les peres q' serront en temps avenir ne soient mes tenuz ne charges a rendre jugements sur autre que sur lur peres ne ace faire mes ayent les peres de la terre poer einz de ce pur touz jours soient dischargez quites que les avantditz jugementz ore rendez ne soient tret en ensample n'en consequence en temps avenir pur quoy les ditz Peres puissent estre charges desore a juger autres que lour peres contre la ley de la terre si au tiel eas aveine que Dieu defende An accord lest it should be drawne in consequence It is assented and agreed by our Lord the King and all the great men in full Parliament that however the said Peeres as Iudges of Parliament did undertake in the presence of our Lord the King to give and render the said Iudgements by assent of the King upon some of those who were not their Peeres and that by reason of the murder of our liege Lord and destruction of him who was so neere the Blood Royall and sonne of a King That notwithstanding the Peeres that now are
or hereafter shall be may be never held nor charged to give judgement on other then on their Peeres neither shall the Peeres of the Land ever have power to doe it but shall be for ever discharged and quitted from the doing of it And that the aforesaid judgments now rendred shall not in the future be drawne into example or consequence for the charging the said Peeres hereafter to judge other then their Peeres against the Lawes of the Land if the like case should happen which God forbid 9. I professe for my part I cannot imagine how it is possible for any thing to be penned more fully being a plaine Declaration what they had done was against Law and a provision for the future But because a learned Gentleman hath of late made an artificiall Discourse to blinde the world and take off the force of this Act of Parliament for such it was it will be necessary to examine what he opposeth against it 1. That this is no Act of Parliament but a bare Protestation without the Kings or Commons Assent And yet it is expresly said to be Assented to by our Lord the King and all the great Ones in full Parliament I desire to know whether any thing can passe in full Parliament to which the Commons are not Parties For the being but a bare Protestation the Title shewes the contrary which calls it an Accord which is a Compact an Agreement not of one party that dissents from others but of all parties concluding together what the Law is such a Compact or Agreement is a Law That the House of Commons nor the Commoners then Iudged ever demurred or excepted against the Lords Iurisdiction c. And yet it is plaine it was Assented unto by the King and Lords c. I shall desire to know of him whether ever any Assented to that no man desired Certainly some excepted against what was then done themselves could not for they agreed it should be so no more it must therefore necessarily follow the House of Commons or the Parties themselves did it and this may serve For that he saith a little after that this Protestation was meerely voluntary it should seeme then the Judgement given by the Lords was not voluntarily the King over ruling them And this Protest if it be no more is an exception against it somewhere 2. The Lords in that do professe and justifie their right of being Iudges in Parliament Which is not denyed the King and them in some cases but they doe likewise professe that it extends not to a Commoner 3. That this was that they might not be constrained by the Kings Command against their wills in his presence to give Iudgement in ordinary cases of Treason or Felony in the High Court of Parliament against such that by Law might and ought to be Tryed in the Kings Court at Westminster c. but onely in such cases which could not well be Tryed elsewhere c. This is in effect what lie sayes To which I am forced to desire him to tell me what those cases are that now cannot well be Tryed elsewhere And whether there are now in our Law any such cases as the Canonists and Casuists call casus reservati That cannot be Tryed by the ordinary Judicatories of the Law but must have recourse back to the Legislative power to be ventilated there ex post facto our Law being now a better disputed more compleat comprehensive Law then it was in Edw. 3. Raign This I should be glad to know from some that understand the Fountain and Reason of our Law as well as the Letter It is certaine that for above 200. years there is no example of proceeding against any Commoner in the House of Peers but by Act of Parliament during which time there was none of those cases fell out that could not well be Tryed elsewhere but by Judgement in the Lords House Whatsoever is an offence is punishable by Law and ought to be Tryed in His Majesties ordinary Courts of Justice The Statute of Marlebridge provides quod tam majores quam minores justiciam habeant recipiant in Curia domini Regis And to think that any one House or both which are not a full Court without the King hath power Arbitrarily to punish one no Member of their owne for that the Law takes not notice of to be a fault I know not how well it agrees with the rules of Justice and how farre distant from that so much complained of Arbitrary Power which I shall never think a Court of Parliament will ever desire to have or exercise whose jurisdiction the more high and absolute it is the more just and honourable ought the proceedings in it to be and to give example of Justice to other inferiour Courts for their being not constrained to give Iudgements against their wills c. That is true but it is likewise that they should never have power to doe it and an affirmance what they had done was against the Law of the Land 4. He affirmes this Protestation to have been made onely against the Lords giving Sentence in Felony and Treason and in the Kings owne presence who usually pronounced Sentence Himselfe with the Lords assent and did not charge to give it as here He did not against Sentencing Fining and Imprisoning any Commoner for railing and libelling against their Persons Iurisdictions and Proceedings c. All this hath no colour out of the Record or practice of other times and it being certain there was then Crime but onely Treason mentioned in that Act or Protestation as he calls it why is it not as well to bar their giving Judgement against a Commoner in other Causes as Felony which himself confesseth it reacheth to ubi lex non distinguit nec nos debemus distinguere For the Kings giving Judgement in Parliament with the Lords Assent I doe confesse Judgements there ought to be properly and punctually entred as given Par nostre Seignieur le Roy que est Soveraigne Iuge en toutz cas par les Seignieurs spirituels temporels avel ' assent de les comes de laterre ou a lour petition nemy par les Seignieurs temporelx seulement That is by our Lord the King who is Soveraign Judge in all Causes and by the Lords Spirituall and Temporall with the Assent of the Commons or at their Petition But it doth not follow that if otherwise they are invalid it being certaine there be many Judgements generally entred as given in the Kings presence by the Lords Spirituall and Temporall and that not held to be any cause of Exception Compare Rot. Parl. apud Lecest. 2. H. 5. nu 16. with Parl. apud Westmin nu 13. See likewise the Judgements against the Spencers 21 R. 2. nu Rot Parl. For Lilburnes and Overtons Railing and Libelling against the Persons and Jurisdictions of the Lords for my part I shall say nothing having not taken upon
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
as it seemes of the Commons did Bayle certain persons during the sitting of the Parliament There is no priviledge more certain then that a Member of the House of Commons may not on any occasion be molested by Suite Yet it is clear by the Statute 23 Hen. 6. any man may be sued even before the Judges of Assize on a supposition he was falsly returned for that Statute limits him that shall be injured to bring his action against the person returned within three moneths And it is certain some Parl. did then last above that time And the Knight of Devon was proceeded against in the House of Peeres during his being of the House of Commons But to speak of later times who would not conclude it a certaine priviledge of the House of Commons to have called any one of their Members out of the Lords House and especially the Solicitor they having done it both to Onslow and Popham the 8 and 23 Eliz. Yet attempting it the 31 Eliz. the Lords refused to transmit the Solliciter unto them The 2 of Rich. the 2. the Lords affirme though what was desired by the Commons had been used in the three last Sessions yet it was not the Custome of Parliament By all which it is manifest a thing stood upon sometimes practised and allowed is not certainly a Priviledge of Parliament or to have been justly done if opposed and this goes very farre in answering all M. Prins Presidents of which more hereafter Lastly saies he This Protestation did not foreclose the Lords in this or future Parliaments to give Iudgement against Commoners in other Cases of Felony and Treason even without Commons And yet the Act doth expresly say That as they should not be charged So they should not at all ever have power to give such Iudgement And their now doing it should not be drawn into Example for the future And thus I have answered all his Exceptions against this Law Onely where he makes in so few lines two Exclamations against such as hold this a Law and think to justifie themselves by it of shewing their non-sence rather then reason and Law their injudiciousnesse and folly rather then justification c. I am forced to reply a person of Integrity and Judgement ought not with such sharpnesse raise envyagainst any that defend themselves by Law Nonsence Folly and Injudiciousnesse are words of relation and that which seemes Nonsence to him may be of great weight in others Judgement But if any should make an Appeal whether to affirme with these men this is a Law made in pursuance of the Common right of the Realm and in affirmation of Magna Charta is neerer Nonsence then to call that a Protestation which by its own nature imports some disagreeing is in plaine words stiled an Agreement or nigher Folly then the affirming that to have past without the Kings Concurrence he is expresly said to have assented unto or more Injudicious then to think the Commons not to have been parties to what was agreed in full Parliament or lesse Reason then to say that Law not to barre the Lords in future which clearly provides they should never hereafter have power to judge a Commoner I do not know I say if any should thus appeal who could be met with would not think this Gentlemans Interpretation farther off reason then the very letter of the Law Interpretari legem est dare rationabilem intellectum sive sensum praecipientis praecepti Neither could he any way tearme this raising murmuring or playing the Bethlehem thus to have his own words retorted on him for my part I am confident the Gentleman would never have alleaged this Record and many other Authorities I have met with in his workes had he thought any would have examined the truth of his sayings or had he any other way to weaken what must of necessity be inferred from them but by such viperine glosses And now it will not be unfit to see this as it is undoubtedly a Law how it hath been practist on all occasions in which he is so confident there is hundreds of Presidents to the contrary of what is pretended by it viz. That no man especially claiming that right for if otherwise they may be thought to have submitted to the Triall vigilantibus non dormientibus jura subveniunt being a Commoner ought ever to be tryed otherwise then by a Jury 12. First then in the same Parliament of Edw. 3. Wherein this Statute or Declaration of the Law was made Sir Thomas Berkley Knight in whose Castle Edw. 2. was destroyed was questioned for the said Murther and pleaded not guilty and put himself upon his Country whereupon there was a Jury summoned to appear Coram domino rege in Parliamento suo apud Westminster in Octabis sancti Hillarii prox ' futur Some two moneths after who found him not guilty The Record remembers all the Jurors names and gives the reasons of their Verdict and this is the onely Commoner I ever read of Tryed by Jury in Parliament Which as it doth enough prove the Lords cannot Try a Commoner but that his Tryall must be by men of his own condition per pares so the never being on any occasion at any time after exercised shewes it ought to have been there it being certain the King cannot as here sit personally to Judge any in case of Felony and Treason In the case of the Genovesa slaine by one Kirkby however the killing him was adjudged Treason in Parliament Yet the proceedings against him that did it was in the Kings Bench where Kirkby was Tryed by a Jury and found guilty So likewise in that himself alleages 17 Rich. 2. in the case of Thomas Talbot however the King and Lords adjudged the case Treason yet for his Tryall he was onely to render himself into the Kings Bench there to remain till it should be ordained par advis du Roy son conseil how he should be further proceeded against which was not in Parliament In breach of Priviledge they have not heretofore took upon them to Judge a Commoner otherwise then to seek a Law for the punishing of him 5 Hen. 4. Richard Cheddre a meniall Servant of Sir Thomas Brook comming to the Parliament was wounded by one Iohn Sallage or Savage the Commons nor the Lords never at all goe about the punishing the said Savage but petition the King would be pleased to ordein such sufficient remedy as may terrifie others viz. 1. That if any kill'd or murther'd one so comming as an additionall to what he was by Law to suffer he might lose his hand 2. But if he wounded or beat any that he should be imprisoned a year and sined to the King 3 That His Majesty would absteine from granting any Pardon without the agreement of the Party But to these the King doth not consent and allowes the offender his Tryall in the Kings Bench as is to be seen
was an act of Parliament That the King was party to the Judgement is clear by nu 43. Et est l' intention du Roy des Seignieurs ore ordeignez assentuz en mesme le Parlement c. The Question then is of the Commons of whom there appeares nothing in the Roll but if there be not it doth not follow they did not assent unto it and so made it a compleat Act. Many things doubtlesse past formerly in Parliaments which are not found Recorded And some Statutes to this day Lawes are no where enrolled of which see Sir Edward Cooke Instit. 4. pag. 51. But for the Commons being parties to this Judgement it is so certaine as Walsingham who then lived relates it was expresly at their pursuite In eo Parlamento saies he fuere péne omnes milites cum Petro de la Mare c. hii itaque resumentes petitiones suas eo loco quo prius dimiserant institerant pro bannitione illius Aliciae Peres c. quae quamvis plures ex dominis omnes legis peritos Angliae pecunia corrupisset Diligentia tamen sapientia praedictorum militum ore suo convicta proscribitur omnibus bonis suis mobilibus immobilibus fisco Regio judicatis which relation agreeing with the Record in every thing but where it is more full there can be no doubt of the truth of it nor that this was other then an Act of Parliament 21. The next President is of some who delivered Burbugh Casttle in Rich. 2. time but this he insists not upon as indeed it makes not to the purpose and may receive the same answer Hall Weston and Gomenis before did But for Sir Thomas Mortimer and Sir Iohn Cobham it is certaine the Commons did not onely Impeach them but joyned with the King and Lords in all things concerned them Insomuch as though the Lords had Accused in that Parliament severall Lords Yet the Commons in Parliament Impeached and joyned in whatsoever was done against any Commoner So that nothing past but by the concurrence of the King and the three Estates which is an Act of Parliament 22. For the Fining and Imprisoning of Walter Sibel of London for slandering the Earl of Oxford that is true but before they did so the said Sibel gratiae domini Regis humiliter se submisit and refused to prosecute his accusation against the Earl upon whose submission this Sentence passed as that before of Cambridge nu 13. 23. For that of Iohn Cavendish accusing Michael de la Poole Chancellor of England whom the Lords put over to the Judges It is certain if the Lords have power to Fine and Imprison a Commoner they cannot delegate it to the Judges nor they who are the Kings Agents in administration of Justice Fine any man as Deputies to them but in doing so must proceed after an ordinary course of Law and therefore either that Record of 7 Rich. 2. is imperfect or it was done as the former upon Cavendishes submission who did in part deny his first Accusation of the Chancellor himself turning it onely on his Clark And for the Lords Fining a Commoner I am confident there never was any one penny paid unlesse voluntarily of any summe so imposed by them though perhaps they may at some time have attempted the doing it which I doe the rather assure my self of because the House of Peeres having an intent really to punish by Fine certain Members of their own House for negligently attending there a thing certainly proper for their cogniscance they attempted no meanes to lay so small a summe as an 100l. on an Arch-bishop and Duke an 100 markes on every Bishop and Earle excepting three and fourty pounds on every Abbot and Barron but by Act of Parliament nor to levy it but by expresly providing in that Act those summes should be raised on their lands and goods by processe out of the Exchequer From whence I cannot but inferre that if they would not venture conceiving it would be stood upon the Fining a Lord for a default punishable by the Lords House but by an Act which expresly tooke care how it should be come by much lesse are they alone by Law left at large in their Censure of a Commoner or have any power to levy any summe they set on him But where he sayes the Lords in this case had witnesses examined upon Oath before them I am not resolved the Chancellours Clark protesting his Lords innoceny Sur. non serment and others examined Sur lour liegeances a dire verite doth necessarily inferre the giving an Oath but if any thinke otherwise I will not contend No more then for his last President that the King and Lords for so is the Record not the Lords alone as by him Cited might not commit a Commoner perhaps for some small time for slandring a Peer The Question is not whether they have done it Malto facta sunt quae si in judicium vocentur fieri non debent Besides I am not satisfied but the King and His Councell which none can deny the Lords to be might by the Statute 12 Rich. 2. cap. 11. on his confession as it seemes this was imprison a man for slandering a person of that esteeme the Arch-bishp was and thus I have done with all his elder Presidents 24. For those of the 18 Iocobi and since I will onely say that the course of Trying men in the Lords House having layen asleep if ever practist for about two hundred yeares then firfi renewed many might be ignorant of their owne right nor know how to plead to it And it is certaine some of those Presidents he mentions have never been executed neither were they done without Kings Concurrence in so much as all was done by an united Vote if put in execution Another President I have met with is that it appeares by 6 Rich. 2. cap. 1. Stat. 2. that certaine men were Indited Arraigned or Appealed of High TREASON in Parliament next before And therefore that it is plaine Commoners may be Tryed even for TREASON in Parliament But it is cleare there is no such thing can be gathered either by the Printed Act here spoken of or by the Roll of either Parliament on any thing else more then that there was a Pardon then granted to severall persons and these words in the Point As in the same Parliament is more fully contained must have reference to the pardon granted which doth appeare in the Roll not to the Arraigning which is no where found in it There may now be expected that I speak somewhat If a Subject should be opprest by an illegall Sentence of the Lords how he is to be rectified for non debet esse defectus Iusticia and for any Court Spirituall or Temporall exceeding their power against any Statute In the like case a Prohibition or Supersedeas out of the Kings Bench lies though the