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
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
it was shewed to the said John Lord of Gomynes by the said Steward how the said LORDS had assembled and considered of his answer and THAT IT SEEMED TO THE LORDS sitting in full Parliament that without duresse or default of victuals or other necessaries for the defence of the Town Castle of Arde and without the Kings Command he had evilly delivered and surrendred them to the Kings Enemies by his own default against all appearance of right or reason contrary to his undertaking safely to keep the same Wherefore THE LORDS aforesaid here in full Parlia-ADJUDGE YOU TO DEATH And because you are a Gentleman and a Baronet and have served the Kings Grandfather in his wars and are no Liege man of our Lord the King you shall be beheaded without having OTHER JUDGEMENT And because that our Lord the King is not yet informed of the manner of this Judgement the execution thereof shall be put in respite until our Lord the King be informed thereof Loe here two express Judgements given in Parliament by the LORDS alone without King or Commons in case of Treason even against Commoners themselves And an express acknowledgement by the Commons of the Lords right to award Iudgement in these cases without the King or them than which a fuller and clearer proof cannot be desired In the Parliament of 2 R. 2. n. 34 35. Sir Robert Howard knight was committed prisoner to the Tower upon the complaint of the Lady Nevil by the Lords in Parliament for a forcible imprisonment of her daughter to which he was accessory that she might not prosecute a divorce in Court Christian In the 50 year of King Edward the 3. in the Parliament called the good Parliament Sir John Anneslee Knight accused Thomas Katrington Esquire of Treason for selling the Castle of St. Saviour in the Isle of Constantine to the French for an inestimable sum of money cum nec defensio sibi nec victualia defuissent whereupon he was taken and imprisoned but in King Edwards sickness enlarged by the Lord Latymers means as was reported In the Parliament held at London Anno 1380. the 3. of R n. 2. he was again accused by Sir John Anneslee and there resolved that being a Treason done beyond Sea not in England it ought to be tried by duel before the Constable or Marshal of the Realm Whereupon a day of battel was appointed in the Court at Westminster the 7. of June and lists set up On which day in the morning they fought the battel in the presence of the KING Nobles and Commons of the Realm which Walsingham at large describes till both of them were tyred and lay tumbling on the ground where the Esquire got upon the Knight as if he had conquered him Others said the Knight would rise again and vanquish the Esquire Interea Rex pacem clamari prâ—cepit et militem erigâ— The Knight refused to be lifted up as the Esquire was desiring he might be laid upon him again for he was well and would gain the victory if he were laid upon him again When he could not obtain his request being lifted up he went chearfully to the King without help when as the Esquire could neither stand nor go but as two held him up and thereupon was set in a chair to rest himself The Knight when he came before the King rogavis Eum et Proceres ut sibi illam concederunt gratiam ut itâ—rum in loco quo prius posset reponi et armiger super eum Rex vero et Proceres cum vidissent miliâ—em tam animose â—am vivide bellum repetere et insuper magnam summam auri offerre publice ut id posset effici decreverunt eum iterum reponendum armigerum super eum modo universaliter servato quo â—acuerant ante prostrati But the Esquire in the mean time in a swoun fell out of the chair as dead between the hands of those who stood by him Whereupon many running to him chafed him with wine and water but could not recover him till they pulled off his arms Quod factum et Militem victorem probavit Arm gerum esse victum After some space the Esquire reviving opened his eyes and began to lift up his head and to look terribly on every one that stood round about him which the knight being informed of went presently to him in his arms which he never put off and speaking to him et Proditorem et falsum appellans quaerit si iterum audeat Duellum repetere Ille verò nec sensum nec spiritum habente respondendi â—lamatum est pugnam finitam et ut quisque ad propria remearet The Squire was carried to his bed senceless and died the next morning Here we have a Duel ordered by Parliament and the King and Lords Iudges in it not the Commons for a Treason done beyond the Seas not triable here by Law In the Parliament of 4 R. 2. n. 17. to 26. Sir Ralph Ferrers being arested for suspition of Treason on the borders of Scotland was brought into the Parliament before the Lords to answer the same where divers Letters under his hand and Seal as was pretended were produced and read against him sent to the Lord Admiral of France and other French Officers informing them that he in the behalf of the French had made a League and alliance with the Scots and desiring them to make payment of the monies promised him and of his own fee and inviting the French to invade England c. with discoveries of the Kings designs against the French and answers to them Sir Ralph desired Counsel in this case which was denied him These Letters were found by a beggar besides London divers of his familiars were called into the Parliament house before the Lords and likewise the beggar and the whole matter strictly examined The Letters sent by Sir Ralph to the parties beyond Seas and certain Letters sent by them in answer to his were all sealed together and all of one hand and the Seal larger than the Seal of the said Sir Ralph whereupon they seemed to be forged by some of his Enemies for his overthrow himself being once or twice urged to answer Whether the Letters were his or no answered that he did not remember they were his own Letters and that he was ready to approve as the Lords should think fit having formerly offered combate with any that would justifie it from which he was put In conclusion the Lords thought him to be innocent whereupon he was delivered to 4. Earls and 2. Lords who became pledges body for body to answer when he should be called between that and the next Parliament and so he was inlarged The Letters and his Seal were delivered to Sir John Cavendish Chief Justice of England and the beggar being thought privy to this falshood was committed to prison by THE LORDS In the Parliament of 5 R. 2. n. 44 45. Richard Clindow Esquire exhibited a Bill to
Realm of Englond which therefore hath suffered the charge of intollerable persecution punicion and tribulation whereof the like hath not been seen or heard in any other Christian Realm by any memory or Record Then being on Live the said Edmund Mortymer Earl of March son and heir of the said Roger son and heir of the said Philip daughter and heir of the said Leonel the third Son of the said King Edward the third To the which Edmund after the decease of the said King Richard the right and title of the same Crown and Lordship then by law custom and conscience descended and belonged and of right belongeth at this time unto our said Liege and Soveraign Lord King Edward the fourth as Cousin and heir to the said King Richard in manner and form abovesaid Our said Soveraign and Liege Lord King Edward the fourth according to his right and title of the said Crown and Lordship after the decease of the said right noble and famous Prince Richard Duke of York his fader in the name of Jesu to his pleasure and loving the fourth day of the Month of March last past took upon him to use his right and title to the said Realm of Englond and Lordship and entred into the exercise of the royal estate dignity preheminence and power of the same Crown and to the reign and governance of the said Realm of Englond and Lordship And the same fourth day of March amoved Henry late called King Henry the sixth son to Henry son to the said Hen. late E. of Derby son to the said John of Gaunt from the occupation usurpation intrusion reign and governance of the same Realm of Englond and Lordship to the universal comfort and consolation of all his Subgetts and Liegemen plentevously joyed to be amoeved and departed from the obeysance and governance of the unrightwise usurpour in whose time not plenty Pees Justice good governance pollicy and vertuouse conversatien but unrest inwaâ—d warr and trouble unright wiseness shedding and effusion â—f innocent bloud abuse of the Laws partiality riot extortion murder rape and vitious living have been the guiders and leaders of the noble Realm of Englond in antient time among all Christian realms laudably reputed of great honour worship and nobly drad of all outward Lands then being the lauâ—ier of honour prowess and worthiness of all other Realms in the time of the said usurpation fallen from that renown unto misery wretchedness desolation shamefull and sorrowfull decline And to live under the obeysance governance and tuition of their true right wise and natural Leige and Soveraign Lord. The Commons being in this present Parliament having sufficient and evident knowledge of the said unrightwise usurpation and intrusion by the said Henry late Earl of Derby upon the said Crown of Englond knowing also certainly without doubt or ambiguity the right and title of our said Soveraign Lord thereunto true and that by Gods Law Mans Law and the Law of Nature he and none other is and ought to be their true right wise and natural Liege and Soveraign Lord. And that he was in right from the death of the said Noble and famous Prince his Fader very just King of the said Realm of Englond And the said 4. day of March in lawfull possession of the same Realm with the royal power preheminence estate and dignity belonging to the Crown thereof and of the said Lordship take accept and repute and will for ever take accept and repute the said Edward the fourth their Soveraign and liege Lord and him and his heirs to be Kings of Englond and none other according to his said right and title And beseech the same their said Liege and Soveraign Lord King Edward the fourth that by the advice and assent of the Lords Spiritual and Temporal being in this present Parlement and by authority of the same his right and title to the said Crown afore specified be declared taken accepted and reputed true and rightwise the same right and title to abide and remain of Record perpetually by the said advice assent and authority And that it be declared and judged by the said advice assent and authority that the said Henry late Earl of Derby for the said rearing of warr against the said King Richard then his Soveraign Lord and the violent taking imprisoning unrightwise usurpation intrusion and horrible cruel murder of him agenst his faith and ligeance wickedly and unjustly offended and hurted the Royal Majesty of his said Soveraign Lord. And that the same Henry unrightwisely agenst Law conscience and custom of the said Realm of Englond usurped upon the said Crown and Lordship And that he and also Henry late called King Henry the fifth his son and the said Henry late called King Henry the sixth the son of the said Henry late called King Henry the fifth occupied the said Realm of Englond and Lordship of Irelond and exercise the governance thereof by unrightwise intrusion and usurpation and in none other wise And that the taking of possession and entry into the exercise of the Royal Estate dignity reign and governance of the said Realm of Englond and Lordship of Irelond of our said Soveraign Liege Lord King Edward the fourth the said fourth day of March and the amotion of the said Henry late called King Henry the sixth from the exercise occupation usurpation intrusion reign and governance of the same Realm and Lordship done by our said Soveraign and Liege Lord King Edward the fourth the said fourth day of March was and is rightwise lawfull and according to the Laws and customs of the said Realm and so ought to be taken holden reputed and accepted And over that that our said Soveraign and Liege Lord King Edward the fourth the said fourth day of March was lawfully seised and possessed of the said Crown of Englond in his said right and title and from thenceforth have to him and his heirs Kings of Englond all such Manors Castles Lordships honours lands tenements rents services fees feefarms rents Knights fees advowsons gifts of Offices to give at his pleasure fairs markets issues fines and amerciaments liberties franchises prerogatives escheats customs reversions remainders and all other hereditaments with her appurtenance whatsoever they be in Englond Wales and Irelond and in Caleys and the Marches thereof as the said King Richard had in the feast of Sr. Matthew the Apostle the 23. year of his reign in the right and title of the said Crown of Englond and Lordship of Irelond and should after his decease have descended to the said Edmund Mortimer Earl of March son of the said Roger Mortimer Earl of March as to the next heir of bloud of the same King Richard after his death if the said usurpation had not been committed or after the decease of the same Edmund to his next heir of blood by the Law and custom of the said Realm of Englond the Manors Castles Honors Lordships lands tenements
possessions and hereditaments with their appurtenances which come to the hands of the said King Richard by forfeiture by force of an Act made in a Parlement holden at Westminster the 21. year of his reign except the said Commons beseeching our said Liege Lord to have and take all only the issues and revenues of all the said Castles Manors Lordships Honors lands tenements rents services and of other the premises aforesaid with their appurtenances except afore except from the said fourth day of the said moneth of March and not afore Saving to every of the liegemen and subjects of our said Soveraign and liege Lord King Edward the fourth such lawfull title and right as he or any other to his use had in any of the premises the said third day of March other than he had either of the grant of the said Henry late Earl of Derby called King Henry the fourth the said Henry his son or the said Henry late called King Henry the sixth or by authority of any pretenced Parlement holden in any of their dayes And that it be ordained declared and stablished by the assent advice and authority aforesaid That all Statutes Acts and Ordinances heretofore made in and for the hurt destruction and avoyding of the said right and title of the said King Richard or of his heirs to ask claim or have the Crown Royal power estate dignity preheminence governance exercise possessions and Lordship abovesaid be voyd and be taken holden â—nd reputed voyd and for nought adnulled repealed revoked and of no force value or effect And furthermore consideration and respect had to the horrible detestable cruel and inhuman tyranny by the said Henry late Earl of Derby against his faith and ligeance done and committed to the said King Richard his rightwise true and natural Liege and Soveraign Lord the unright wise and unlawfull usurpation and intrusion of the same Henry upon the said Crown of Englond and Lordship of Irelond the great intollerable hurt prejudice and derogation that thereby followed to the said Edmund Mortymer Earl of March next heir of blood of the said King Richard time of his death and to the heirs of the said Edmund and the great and excessive damage that by the said usurpations and the continuance thereof hath grown to the said Realm of Englond and to the politique and peaceable governance thereof by inward wars moved and grounded by occasion of the said Vsurpation It be therefore Ordeined declared and stablished by the advice assent and authority aforesaid for the more stablishing of the assured and undoubted inward rest and tranquility of the said Realm of Englond And for the avoyding of the said usurpation and intrusion very cause and ground of the tribulation persecution and adversity thereof that the said Henry late Earl of Derby the heirs of his body coming be from henceforth unabled and taken and holden from henceforth unable and unworthy the premises considered to have joy occupy hold or inherit any estate dignity preheminence enheritaments or possessions within the Realm of Englond Wales or Irelond aforesaid or in Caleys or the Marches thereof And sith that the Crown Royal estate dignity and Lordship above rehearsed of right appertained to the said Noble Prince Richard Duke of York And that the said Usurper late called King Henry the sixth that understanding to the intent that in his opinion he might the more surely stand and continue in his usurpation and intrusion of and in the same Crown Royal estate dignities and Lordship evermore intended and laboured continually by subtile imaginations frauds deceipts and exorbitant means to the extreme and final destruction of the same noble Prince Richard and his issue And for the execution of this malicious and damnable purpose therein in a preâ—ence Parliament by him and his usurped authority holden at Coventree the 38 year of his usurped Reign without cause lawfull or reasonable declared and judged the same noble Prince Richard and the Noble Lords his Sons that is to wit Edward then Earl of March and now the King our Soveraign Lord abovesaid and Edmund Earl of Ruthland to be his Rebels and Enemies them and all their issue dis-inheriting of all name state title and preheminence tenements possessions and enheritaments for evermore cruelly wickedly and unjustly and agenst all humanity right and reason whereby the said noble Prince Richard and his sons above named were compelled by the dread of death to absent them for a time out of this Realm of Englond the natural land of their birth unto their intollerable hurt prejudice heavinesse and discomfort And where after these the said noble Prince Richard Duke of York using the benefice of the Law of Nature and sufficiently accompanied for his defence and recovery of his right to the said Crown of the said Realm came thereunto not then having any Lord therein above him but God And in the time of a Parliament holden by the said Henry late called King Henry the sixth the sixth day of October the 39 year of his said usurped reign intended to use his right and to enter into the exercise of the royal powers dignitees and Lordships abovesaid as it was lawfull and according to Law reason and justice him so to doe and thereupon shewed opened declared and proved his right and title to the said Crown to fore the Lords Spiritual and temporal and Commons being in the same Parlitment by antient matters of sufficient and notable Record undefaisible whereunto it could not be answered or replyed by any matter that of right ought to have deferred him then from the possession thereof yet nevertheless for the tender zeal love and affection that the same Duke bare of Godly and blessed vertues and natural disposition to the restfull governance and pollicy of the same Realm and the Common wele thereof which he loved all his life desired and preferred afore all other things earthly though all the seid Lords spiritual and temporal after long and mature deliberation by them had by good advice upon the said right and title and the authorities and Records proving the same the answers thereunto gives and the replâ—cations to the same made knew the same right and title true by them and the seid Commons so declared accepted and admitted in the same Parliament Iâ— liked him at the grete instance desire and request of the seid Lords solemnply and many times unto him made to assent and grant unto a convention concord and agreement between the seid Henry late called King Henry the sixth on that opâ—party and him on that other upon the seid right and title by the same late called King by the advice and assent of the seid Lords Spiritual and Temporal and Commons being in the seid Parliament auctorized in the same comprehending among other that the seid Vsurper late called King Henry the sixt understanding certainly the seid title of the said Richard Duke of York just lawfull true and sufficient by the
A Plea for the LORDS AND HOUSE of PEERS OR A full necessary seasonable enlarged Vindication of the just antient hereditary Right of the Earls Lords Peers and Barons of this Realm to sit vote judge in all the PARLIAMENTS of ENGLAND Wherein their Right of Session and Sole Power of Judicature without the Commons House in Criminal Civil Ecclesiastical causes as well of Commons as Peers Yea in cases of Elections Breach of Privilege misdemeanors of the Commons themselves are irrefragably evidenced by solid reasons punctual Authorities memorable Presidents out of Histories and Records in all ages most of them not extant in any Writers of our Parliaments Whose Errors are here rectified the Seditious Anti-Parliamentary Pamphlets Libels of Lilbourn Overton and other Levellers against the Lords House and Right of judging Commoners fully refuted and larger Discoveries made of the Proceedings Iudgements of the Lords in Parliament in Criminal Civil causes Elections Breaches of Privilege of their Gallantry in gaining maintaining preserving the Great Charters Laws Liberties Properties of the Nation and oppugning all Regal Papal Vsurpations Exactions Oppressions illegal Ayds Taxes required or imposed and of the Commons first summons to and just Power in Parliaments than in any former Publications whatsoever By William Prynne Esquire a Bencher of Lincolnes Inne Prov. 22.28 Remove not the antient Land-mark which thy Fathers have set LONDON Printed for Henry Brome at the sign of the Gun in Ivie Lane and Edward Thomas at the Adam and Eve in Little Britain 1659. To all the truly Honourable Heroick Lords and Peers of the Realm of England who are real Patriots of Religion their Countries Fundamental Liberties Properties Great Charters Laws against all arbitrary Tyranny Encroachments illegal unnecessary Taxes and Oppressions Right Honourable THough true Nobility alwayes founded in vertue and real piety needs no other tutelar Deity or Apologie but it self amongst those ingenious Spirits who are able to discern or estimate its worth yet the iniquity of our degenerated Age and the frenzie of the intoxicated ignorant vulgar is such that it now requires the assistance of the ablest Advocates to plead its cause and vindicate the just Rights Privileges of the House of Peers against the licentious Quills Tongues of lawlesse sordid Sectaries and Mechanick Levellers who having got the Sword and reines into their hands plant all their batteries and force against them crying out like those Babylonian Levellers of old against the House of Lords Rase it Rase it even to the foundation thereof and lay it for ever â—ver with the very dust beholding all true Honor worth and Nobleness shining forth in your Honors heroick Spirits with a malignant aspect because they despair of ever enjoying the least spark therof in themselves and prosecuting you with a deadly hatred because better greater than ever they have hopes to be unless they can through Treachery and violence make themselves the onely Grandees by debasing your highest Dignity to the lowest Peasantry and making the meanest Commoners your Compears This dangerous seditious Design hath ingaged me the unablest of many out of my great affection to Royalty and real Nobility and a deep sence of the present kid tottering condition of our Kingdom Parliament the very pillars and foundations whereof are now not only shaken but almost quite subverted voluntarily without any Fee at all to become your Honors Advocate to plead your Cause and vindicate your undoubted hereditary right of sitting voting judging in our Parliaments of which they strenuously endeavour to plunder both your Lordships and your posterities and to publish these subitane Collections to the world now enlarged with many pertinent Additions to still the madness of the seduced vulgar whom Ignoramus Lilburn Overton Walwin and their Confederates have laboured to mutinie against your Parliamentary Jurisdiction treading upon Princes as upon mortar and as the Potter treadeth the clay in their illiterate seditious Pamphlets whose Arguments Pretences Presidents Objections Allegations I have here refuted by Scripture Histories Antiquities and Parliament-Rolls the ignorance whereof joyned with their malice is the principal occasion of their error in this kind And truly were all our Parliament Rolls Pleas Iournals faithfully transcribed and published in print to the eyes of the world as most of our Statutes are by authority of both Houses of Parliament a work as worthy their undertaking and as beneficial for the publike as any I can recommend unto their care it would not only preserve them from imbezelling and the hazards of fire and warr to which they are now subject but likewise eternally silence refute the Sectaries Levellers ignorant false Allegations against your Honors Parliamentary Jurisdiction and Judicatur resolve clear all or most doubts that can arise concerning the tower jurisdiction privileges of both or either Houses keep both of them within their due bounds the exceeding whereof is dangerous grievous to the people except in cases of absolute real present urgent not pretended necessity for the saving of a Kingdom whiles that necessity continues and no longer chalk oâ—â— the â—miâ—ent regular way of proceeding in all kinds of Parliamentary affairs whatsoever whether of warr or peace Trade or Government Privileges or Taxes and in all civil or criminal causes and all matters whatsoever concerning King or Subject Natives or Foreiners over-rule reconcile most of the present differences between the King and Parliament House and House Members and Members clear many doubts rectifie some gross mistakes in our printed Statutes Law-Books and ordinary Historians add much light lustre ornament to our English Annals the Common Statute Laws and make all Lawyers all Members of both Houses far more able than now they are to manage and carry on all businesses in Parliament when they shall upon every occasion almost have former presidents ready at hand to direct them there being now very few Members in either House Lords Lawyers or others well read or versed in antient Parliament Rollâ— Pleas Iournals or Histories relating to them the ignorance whereof is a great Remora to their proceedings yea oft times a cause of dangerous incroachments of new Iurisdictions over the Subjects persons estates not usual in former Parliaments of some great mistakes and deviations from the antient methodical Rules and Tracts of parliament now almost quite forgotten and laid aside by new unexperienced ignorant Parliament Members who think they may do what they please to the publike prejudice injury of posterity and subversion of our Fundamental Laws Rights Liberties in the highest degree by new erected arbitrary Committees exercising an absolute tyrannical power over the Persons Liberties Estates Freeholds both of Lords themselves and all English Freemen Your Lordships helping hand to the speedy furthering of such a necessary publike work and your industrious magnanimous unanimous imitation of the memorable heroick presidents of your Noble progenitors in gaining regaining enlarging confirming perpetuating to posterity the successive Grand Charters of our Liberties when
ever violated in oppugning all arbitrary tyrannical Proceedings Taxes Oppressions Encroachments ill Counsellors and bad Instruments both of Kings and Popes themselves in inflicting exemplary punishments upon all Traytors Enemies to the publike both in our Parliaments and the Field too when there was occasion the principal whereof I have here presented to your view in a Chronical method will be a great accession to your Honour the best vindication of your antient undoubted Parliamentary Jurisdiction Right Power Judicature against all Opposites till the accomplishment whereof I shall humbly recommend this enlarged Plea in your Honors defence to your Noble Patronage who can pitch upon no better nor readier means to support your declining Honor and Authority or to re-indear your selves in the Peoples affections than in these distracted dangerous stormy times to ingage all your interest power activity speedily to settle secure Gods Glory Truth Worship the publike Laws Peace Liberty Safety of the Kingdom against all open Opposers and secret Underminers of them to unburthen the people of their long-continued heavy Taxes the Souldiers insolencies free-quarters to redress all pressing grievances all oppressing arbitrary Committees proceedings contrary to the rules of Law and Iustice to right all grieved Petitioners especially such who have waited at least seven years space at your doors for reparations to relieve poor starved Ireland raise up the almost lost honor power freedom reputation of Parliaments by acting honourably heroically like your selves without any fear favour hatred or self-ends by confining your selves with the Commons House to the antient bounds rules of Parliamentary Jurisdiction proceedings and by endeavouring to excel all others as farr in Iustice Goodness and publike resolutions as you do in Greatness and Authority Which that you may effectually perform as it is the principal scope of this Plea for your Lordships which whether you stand fall or by way of Remitter recover your antient rights again after a violent discontinuance of them for a season will remain as a lasting Monument to all Posterity of your undubitable just Right to sit and judge in all English Parliaments So it shall be the constant prayer of Your Lordships devoted Servant WILLIAM PRYNNE From my Study in Lincolns Inne 7. Junii 1647. To the Ingenuous READER THis Plea for the LORDS and House of PEERS was first suddenly compiled and published by me in the year 1647 when Lilburn Overton with their Iesuitical and Anabaptistical levelling Confederates endeavoured by sundry seditious Pamphlets libels Petitions then printed dispersed in the City Army Country to extirpate the Lords and House of Peers together with the King and Monarchy by engaging the vulgar Rabble Souldiers and Commons to suppresse pull down or cast off their superiour just antient legal authority over them not only against the expresse Laws of God and the Realm their own Oaths of Supremacy Allegiance Protestation Covenant but the very Law of Nature it self universally received amongst all Nations whatsoever Haec enim lex Naturae apud omnes Gentes recepta est quam nullum tempus delebit UT SUPERIORES INFERIORIBUS IMPERENT Which Law these unnatural Bedlams would now quite obliterate endeavouring to set up that Aâ—axy disorder in Government which Solomon and God himself by him so much complain of Eccles 10.5 6 7. There is AN EVIL I have seen under the Sun as AN ERROR that proceedeth from the Ruler Folly or persons of mean fortune parts birth is set in high dignity and the rich set in low place I have seen Servants upon Horses and Princes walking as Servants upon the earth Which disorder he thus censures Prov. 19.10 Delight is not seemlâ— for a fool much lesse for a Servant to have rule over Princes The sad effects whereof he thus relates Prov. 30.21 22. For three things the Earth is disquieted and for a fourth which it cannot bear the 〈◊〉 and chief whereof is this For a Servant when he reigneth To which David subjoyns another ill consequence Psal 12.8 The ungodly walk on every side when the vilest of the Sons of men are exalted which the Chaldâ— paraphrase thus glosseth In circuitu improbi ambulant tanquam sanguisugae qui sugunt sanguinem filiorum hominum the peasantry when exalted above the antient Nobility and Gentry being usually both intollerably proud insolent cruel bloâ—dy according to the old observation of Claudians and others Asperius humili nihil est cum surgit in altum Cuncta ferit dum cuncta timet desaevit in omnes Vt se posse putent nec bellua tetrior ulla Quam servi rabies in libera collâ— furentis Agnoscit gemitus et paenae parcere nescit This was experimentally verified not only in Wil. Langhamp heretofore and other particular persons advanced from low degree to places of greatest honour but in the popular insurrections of John Cade Jack Straw Wat Tyler and others who intended to murther the King destroy the Nobles Judges Prelates Lawyers and chief Gent. they could meet with than to seise upon their lands estates and make themselves Kings Lords in their steads and share the Kingdom Government between them and by the Anabaptists proceedings of like Nature at Munster and other places in Germany whom the present Levellers of this sect would doubtlesse imitate could they get but sufficient power into their hands My absence in the Country whiles this Plea was printing caused many material mistakes of words and one grosse mutilated transposition in Cheddars case in its first Edition p. 48 52. which I could not correct most of the Books being dispersed before I could get an Errata printed and the small time I had to compile it necessitated me to omit many material Records Presidents Histories pertinent to this Argument Whereupon to right my self with the Lords whose cause I pleaded and the Readers I soon after resolved to publish a corrected much inlarged Impression thereof but other publike Imployments and publications retarding it and the whole House of Lords some few Months after being forcibly suppressed my self with sundry other Members of the Comunions House secured secluded and after that dispersed and sent close prisoners by Mr. Bradshaws illegal Warrants unto several remote Castles without any hearing or cause expressed or recompence for the Injuries damages thereby sustained this much augmented Plea hath lyen dormant ever since and had never been awaked to walk abroad in publike had not the late loud unexpected Votes at Westm of a NEW KING AND HOUSE OF LORDS under the Name Notion of ANOTHER HOUSE passed by some who had lately c suppressed decryed engaged against them both as uselesse dangerous oppressive burthensom tyrannical c. revived and raised it out of the Grave of Oblivion The Subject matters principally debated and vindicated in it are only two First That all the Dukes Marquesses Earls Viscounts Barons Lords of England have an undoubted antient just Right Privilege to sit vote in all Parliaments
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
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
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
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
Liberties from vassalage to the Norman yoke assembling all the Commons of Kent to Canterbury informed them That they were born freemen that the name of bondage was never heard amongst them that nothing but servitude attended them if they unworthily submitted to the insolency of the invading Enemy as others had done And thereupon exhorted them manfully to fight for the Laws and Liberties of their County chusing rather to end an unhappy life by fighting valiantly for them in the field than to undergoe an unaccustomed yoke of bonduge or to be reduced from their known Liberties to an unknown and unsure slavery After which the Archbishop and Abbot chusing rather to dye in battel than to behold the misery and slavery of their Native Country became the Captains of the Kentish Army which they raised and by a Stratagem invironing Duke William and his whole Army at Swanscomb they procured this Grant and Concession from him That all the people of Kent should for ever enjoy their antient Liberties without diminution and use the Laws and antient Customs of their Country they being resolved as Stigand told the Duke rather to part with their lives than them Liberty being the proper badge of Kentishmen After which Duke William marching to London to be Crowned King Cumque â—eracta victoria Tyranni nomen exhorrescens et legitimi Principis personam induere Gestiens à Stigando tunc temporis Canâ—uariensi Episcopo consecrari deposceret Ille out of an heroick gallant English Christian spirit Viro ut aiâ—bâ—t Cruento et alienâ— juris Invasori manus imponere nullatenus adquievit Whereupon he was crowned by Aldred Archbishop of York King William for this his stoutness and opposition in defence of his Countries Laws and Liberties under a pretence of honor first carried him with him into Normandy as a Prisoner at large afterwards upon feigned pretences caused him to be deprived of his Archbishoprick and then shut him up Prisoner in the Castle of Winchester where he soon after died of grief or famine having scarce enough allowed him to keep soul and life together Such a curb and terror was he to him whiles he lived in place and power that he could not carry on his designs against the English to captivate or enslave them till he was removed out of the way of this Conqueror who came to the Crown by the effusion of so much Christian bloud that Gulielmus Neubrigensis gives this censure of it and let all other invaders of the Crown by bloud observe it Sane quod idem Christianos innoxios hostiliter Christianus impetiit et tanto sibi sanguine Christianum Regnum paravit quantae apud homines gloriae tantae etiam apud Deum noxae fuit Whence Stigand refused to crown him Simon Monâ—eâ—ort Earl of Leicester the greatest Pillar and General of the Barons in the wars against King Henry the 3d for the preservation corroboration of Magna Charta the Liberties and Properties of the People was so terrible to this extravagant oppressive King frequently violating both his Great Charters Laws Oaths That being perswaded to enter into his house in a tempest of thunder and lightning which he very much feared the Earl courteously meeting him and saying Why do you fear tht tempest is now past the King thereunto replyed not jestingly but seriously with a stern countenance I fear thundring and lightning above measure but by the head of God I tremble more at thee than at all the thundring and lightning in the world Being afterwards slain in the Battel of Eusham in defence of his Countries Liberties Rishanger gives this Encomium of him Thus this magnificent Earl Simon ended his dayes who not only bestowed his estate but his person and life also for relief of oppressions of the poor for the asserting of Justice and the Rights of the Realm A sufficient Ground for such Nobles and their Posterity to sit and Vote as Peers in Parliament without the peoples election In the 3 4 14 15 of K. Edw. 2. his reign Tho. Earl of Lancaster and other potent wealthy Barons were the chief Sticklers against Gaverston and the Spencers who seduced the King oppressed the people and were the principal Pillars of our Laws Liberties as our Historians relate at large procuring those ill Counsellors to be banished and removed from the King even by force of Arms. In 10 11 22. of King Rich. 2. the Duke of Gloucester the Earl of Arundel and other potent Lords were the principal opposers of the Kings ill Counsellors Tyranny the chief protectors of the Laws and peoples Liberties to the loss of some of their lives heads estates as our Statutes the Rolls of Parliament in those years and Historians witness whence Walsingham writing of the Duke of Glocester's death murthered by the Kings command at Calice who was the principal Anti-royalist and head of all the Barons useth this expression Thus died this best of men the Son and Uncle of a King in quo posita fuere spes solatium TOTIVS REGNI COMMUNITATIS in whom the hope and solace of the Commonalty of the whole kingdom were placed who resented his death so highly that in the Parl. of 1 H. 4. Hall who had a hand in his murder was condemned and executed for a Traytor his Head Quarters hung up in several places and K. Richard among other Articles deposed for causing him to be murthered Since then our Peers and Nobles as the premised Examples abundantly evidence have been alwaies persons of greatest valour power estate interest most able forwards to oppose the Tyranny Exactions of our Kings and to preserve the Great Charters of our Liberties first gained since preserved and transmitted to us by their valour bloud counsel cate with our other Laws which they have upon all occasions manfully defended with the hazard loss of their lives Liberties Estates and upon this ground were thought meet by the wisdom of our Ancestors to merit and enjoy this privilege of sitting voting judging in Parliament by vertue of their Peerage and Baronies And since we must all acknowledge that the Lords assembled in a Great Council by the King at York as the Commons themselves acknowledge and remonstrate Exact Collection p. 13. were the chief instruments of calling this present Parliament and were therefore in the Act for Triennial Parliaments principally intrusted to summon and hold all future Parliaments in the Kings Lord Chancellors or Lord Keepers defaults Being also very active in suppressing the Star-chamber High Commission Councel-Table Prelats and other grievances and those who fitst appeared in the Wars against the King and his party in defence of our Laws Liberties Religion Parliaments Privileges to the great encouragement of others witnesse the deceased Lord General Essex Brooke Bedford Stamford Willougbie Lincoln Denbigh Manchester Roberts and others it would be the extremity of folly ingratitude and injustice to deny our Peers this hereditary Right Privilege Honour now w ch
est satisfactum The Pope hereupon taking more boldness than before to trample the English Prelates Clergy under his feet fleece them imperiose solito imperiofius Praelatis Angliae demandavit ut in Anglia omnes beneficiati in suis beneficiis residentiam facientes tertiam partem bonorum suorum Domino Papae conferrent non facientes residentiam dimidiam multis adjectis durissimis conditionibus praedictum mandatum restringentibus per illum verbum et adjectionem detestabilem NON OBSTANTE quae omnem extinguit justitiam praehabitam The Bishops assembling in convocation to exact it the King thereupon by his Nobles advice and instigation sent Sir John de Lexeton a Knight and Lawrence St. Marin his Clark to them strictly commanding them in the kings behalf not to consent by any means to this contribution demanded by the Pope to the desolation of the English kingdom The next year 1247. Vrgente Papali mandato redivivo de importabili contributione Papali praetacta ad quam Episcopi in generali Concilio Clerum infeliciter obligarent fecit Dominus Rex MAGNATES SUOS nec non et Angliae Archidiaconos per scripta sua Regia Londini convocari Quo cum pervenissent die ptaefixo Episcopi omnes sese gratis absentarunt ne viderentur propriis factis eminus adversari Sciebant enim corda omnium usque ad animae amaritudinem sauciri Convenerunt tunc ibidem Archidiaconi Angliae nec non et totius regni Cleri pars non minima CUM IPSIS MAGNATIBUS conquerentes communiter super intolerabilibus frequentibus exactionibus Domini Papae pro quibus Dominus Rex non mediocriter compatiendo tristabatur Res enim publica periclatabatur et commune negotium regni totius agebatur imminebat tam populi quam cleri inanis desolatio et cunctis temporibus inaudita After long consultation the King and Nobles by common advise resolved to send a remonstrance of all their grievances together with Letters in the name of the whole Parliament and kingdom to the Pope and his Cardinals speedily to redress them which Letters they sealed with the Common Seal of the City of London thereby obtained some shew of redress of their grievances which the Nobles further prosecuted and complained of in another Parliament the selfsame year Dominus Rex comperiens regnum suum enormiter undique periclitari by the Popes exactions taxes oppositions jussit OMNEM TOTIUS REGNI NOBILITATEM CONVOCARI ut de statu ipsius tam manifeste periclitantis Oxoniae contrectarent Praelatos autem ad hoc Parliamentum vocavit anxius quia videbat eos tam frequenter per Papulâ—s extortiones depauperari quod frequentia consuetudinem regni ruinam manifeste minabatur Sperabatur igitur communiter aliquod salubre Ecclesiae et universitati ibi statuendum quod tamen omnes fefellit through the Prelates and Clergies cowardise and the kings overmuch compliance with the Pope the Nobles only continuing constant in their oppositions against these papal exactions and enormities being more zealous for the Churches Clergies Prelates liberties against the Popes intolerable exactions oppressions incroachments than they themselves and the only persons who manfully and constantly maintained them when the King Prelates and Clergy through fear cowardise and treachery betrayed and deserted them Anno 1264. Pope Urban being much incensed against the BARONS spoiling the goods of Ecclesiastical persons who were Aliens advanced by his provisions said That he desired to live no longer but till he had subdued the English whereupon he sent a Legate towards England a great Person to wit Sabin a Bishop Cardinal to interdict the Land and excommunicate THE BARONS the oppugners of his Provisions But when he would have entred England he found he could not safely do it by reason of the Barons resistance Whereupon citing some Bishops of the Realm first to Ambayonne and afterwards to Bononia Sententiam excommunicationis et interdictionis super Civitatem Londoniae et 5. Portus necnon quasdam personas illustres ET NOBILES REGNI fulminatum commisit exequendam At illi Sententiam illam contra justitiam illatam attendentes appellarunt ad Papam ad meliora tempora vel ad generale Concilium necnon et supremuÌ„ judiceÌ„ certis de causis et rationibus commendabilibus Quae postea appellatio in Anglia congregato apud Radingum Concilio recitata est et ab Episcopis et Clero approbata et executa Interdictum autem licet inviti suscipientes a Legato praedicti Episcopi secum detulerunt Sed cum applicuissent Doveriae scrutinio ex more in portu facto intâ—â—â—eptum est a Civibus et in minutias dilaneatum jactatur in mare So little did they then regard and so much detest and scorn the Popes unjust Interdict in so just a cause An. 2 E. 1. Rot. Fin. m. 9. in Sched Cook 4 Inst p. 13. Pope Gregory by his Letters demanding the rent of 1000. marks by the year of K. Ed. the 1. reserved for England upon his regranting the Realm to King John the king writ thus to him Se sine PRAELATIS ET PROCERIBUS REGNI NON POSSE RESPONDERE quod jurejurando in coronatione sua fuit astrictus QVOD JURA REGNI SUI SERVARET ILLIBATA nec aliquid quod Diadema tangit Regni ejusdem absque ipsorum requisitus consilio facere And the Parliament being ended he could doe nothing without them who afterwards gallantly opposed his usurpations as will appear by this following president King Edward the 1. in the 29. year of his reign being summoned by the Pope by himself or his Proctors to declare his right to the Realm of Scotland in his Court at Rome where he should receive justice concerning it The King thereupon called a Parliament to consult about it where he refused to return any answer by himself but committed it to the Earls and other Lords of the Land to return the Pope an answer thereunto Who making a large and learned Historical Remonstrance of the subjection of Scotland and her Kings to the Kings of England and of their Homage done to them in all ages as their Soveraign Lords sent it to the Pope with this notable Letter signed as Mat. Westminster and Sir Edward Cook inform us with no less than 100 Seals of Arms of Earls and Barons in the name of the whole Parliament and Kingdom Sancta Romana Ecclesia per cujus ministerium fides Catholica in suis artibus cum ea ut firmiter credimus et teneamus maturitate procedit quod nulli praejudicare sed singulorum jura conservari velit illaesa Sane convocato nuper per Serenissimum Dominum nostrum Edwardum Dei gratia regem Angliae illustrem Parliamento apud Lincolniam generali idem Dominus noster quasdam literas Apostolicas quas super certis negotiis conditionem et statum Regni ex vestra parte receperat in medio exhiberi ac
seriose nobis fecit exponi Quibus auditis diligenter intellectis ita sensibus admiranda quam hactenus inaudita in eis audivimus contineri Scimus enim Pater sanctissime et notorium in partibus nostris ac nonnullis aliis non ignotum quod à prima institutione Regni Angliae Reges ejusdem regni tam temporibus Britonum quam Anglorum superius directum Dominium regni Scotiae habuerunt in possessione vel capitanei superioritatis et recti Dominii ipsius Scotiae successivis temporibus habuerunt nec ullis temporibus ipsum regnum in temporalibus pertinuit vel pertinet quovismodo ad Ecclesiam supradictam Quinimo idem Regnum Scotiae dicti Regni nostri Regibus Angliae atque sibi faeodale extitit ab antâ—quo Nec etiam Reges Scotorum Regnum aliis quam Regibus Angliae subfuerunt vel subjici consueverunt neque Reges Angliae super juribus suis in regno praedicto aut aliis suis temporalibus coram aliquo judice ecclesiastico vel saeculari ex Praeeminentia status suae Regiae dignitatis et consuetudinis cunctis temporibus irrefragabiliter observatae responderunt aut respondere debebant Vnde habito tractatu et deliberatione diligenti super contentis in Literis vestris memoratis communis concors unanimus omnium nostrum et singulorum consensus fuit et erit inconcusse Deo propitio in futurum quod praefatus Dominus noster Rex super juribus Regni Scotiae aut aliis suis temporalibus nullatenus respondeat judicialiter coram Vobis nec judicium subeat quoquo modo aut jura sua praedicta in dubium quaestionis deducat nec ad praesentiam vestram Procuratores aut nuncios ad hoc mittat praecipue cum praemissa cederent manifeste in exhaeredationem juris coronae Regni Angliae et Regiae dignitatis ac subversionem Status ejusdem Regni notoriam necnon ad praejudicium Libertatis Consuetudinum et Legum paternarum ad quarum obfervationem et defensionem debito praestiti juramenti astringimux et quae manutenebimus toto posse totisque viribus cum Dei auxilio defendemus Nec enim permittimus nec aliqualiter permittemus sicut non possumus praemissa tam insolita tam indebita praejudicialia alias inaudita praelibatum dominum regem etiam si vellet facere seu modo quolibet attemptare Quapropter sanctitati vestrae humiliter supplicamus quatenus eundem nostrum dominum Regem qui inter alios Principes orbis terrae Catholicum se exhibet et Romanae Ecclesiae devotum jura sua Libertates et Consuetudines et leges praedictas abique diminutione et inquietudine pacifics pofâ—idere as illibata persistere benignius permittatis A most noble heroical loyal magnanimous Resolution of all the English Peers to their King and Country even against the Popes incroachments on them though then their Ghostly Father Anno 1307. King Edward the 1. held a Parliament ar Carlisle in quae per Majores regni graves deposita sunt querimoniae de oppressionibus Ecclesiarum et Monasteriorum multiplicibus extortionibus pecuniarum per Clericum Domini Papae Magistrum Gulihelmum de Testa noviter in regnum inductis praeceptumque est eidem clerico DE ASSENSU COMITUM BARONUM ne de caetero talia exequatur Ordinatum etiam erat quod pro remedio super hiis obtinendo ad dominum Papam assignati mitterentur Nuncii I shall close up this point with one memorable example more Anno 1312. there being a great difference between King Edward the 2. and his Nobles about his recalling Peter Gaverston after a double exile by sentence of the Lords in parliament who took up arms to expell him by force and desired the King to confirm and execute certain Ordinances they had made else they would by strong hand compell him thereunto hereupon the Popes two Legates then in England came with the rest of the Prelats of England and Earl of Glocester to St. Albans to mediate a Peace between the King and Lords from whence they sent their Clerks to Warhamstede where the Barons then lay with their Army cum Literis summi Pontificis eis pro pace roganda directis Magnates audientes extraneos eis Literas apportate ipsos quidem pacifice receperunt sed literas recipere noluerunt dicentes se non esse literatos sed armis militia exercitatos et ideo videre literas non curarunt Tunc qui missi fuerant requisierunt si placeret eis habere colloquium cum Dominis suis Domini Papae nunciis qui pro pace reformanda personaliter accedere cupiebant Ad haec PROCERES responderunt Se in regno multos habere probos literatos Episcopos quorum consiliis uti volebant et non exâ—rancorum quibus non esset cognita causa commotionis suae praeciseque dixerunt se nullo modo permissuros ut aliquis alienigena vel forensis intromitteret de factis suis aut quibuscunque negotiis eos tangentibus infra Regnum So much did the Lords then slight the Popes Letters and Legates Nuncii Domini Papae tali modo perterriti in crastino summo manè iter versus Londonias maturarunt qui apud Sanctum Albanum loci commoditate illecti moram traxisse per Mensem vel amplius cogitaverant And so intermedled no more therein The same year Henry de Lacy Earl of Lincoln lying upon his death-bed used this Speech to Thomas Earl of Lancaster his Son-in-law heir to 5. Earldoms Quomodo Deus eum prae cunctis in regno ditaverit honoraverit gloriae fecerat abundare Quapropter ait et Deum diligere te et honorare prae caeteris obligaris Cernis Sanctam Ecclesiam Anglicanam honorabilem quondam et liberam per Romanorum Oppressiones Regum hujus regni injustas Exactiones proh dolor ancillatam Vides plebem regni Tributis Tallagiis apporiatam de conditione Libertatis in servitutem actam a true character of our times after all our wars for Liberty and Property Cernis regni Nobilitatem quandoque toti Christianitati venerabilem jam ab alienigenis in terra propria vilipensam Adjuro te igitur per nomen Christi ut virum induas exurgas et eriges te ad honorem Dei Ecclesiae et patriae liberationem adhibeasque tibi virum strenuum nobilem prudentem Guidonem Warwicensem Comitem cum necesse fuerit de regni tractare negotiis qui consilio praeeminet et maturitate pollet Non verearis insurgentes adversantes tibi dimicaturo pro veritate Si his meis monitis acquieveris in aeternum honorem gloriam consequeris Whereupon this Earl pro relevanda sanctae matris Ecclesiae oppressione et recuperanda regni debita libertate confederated with divers other Earls and Nobles who electing him for their General regni Nobilium communi decreti sententia Then they sent Messengers to the K. to
banish Peter Gâ—verston which he refusing to doe they pursued him with their arms cut off his head slighted the Popes Letters and Nuncios regulated his Extortions and enforced the King to confirm the Ordinances they made for the redress of all grievances both in Church and State with the Great Charter Laws and Liberties of the Church and people in whose defence and quarrel this Earl afterwards lost his life To these I could annex many other such like Letters resolutions oppositions of our Earls Lords Barons in Parliament against the Popes Usurpations Encroachments upon the Crowns Royalties of our Kings and Liberties Laws Customs of our Kingdom as 21 E. 3. rot Parl. n. 63.40 E. 3. rot Parl. n. 8. Cooks 4 Institutes p. 13 14.50 E. 3. rot Parl. n. 85. to 108. 27 E. 3. c. 1. 38 E. 3. c. 4. 16 R. 2. c. 5. wherein every one of the Lords temporal in Parliament answered and averred by himself severally and joyntly with the rest That neither King John nor any other could put himself or his Realm or people into subjection or Tribute unto the Pope without their common assents That the submission he made to the Pope was without their assents and against his Oath at his Coronation That if the Pope by process or otherwise would attempt to enforce the King or his Subjects to render him the Services and annual Tribute for England and Ireland granted him by King John they would resist and oppose him with all their power And moreover That they will stand with the Kings Crown and Royalty in all cases of the Popes usurpations clearly in derogation of the Kings Crown in all other cases which shall be attempted against the said Crown and Royalty in all points with all their power whose Gallantry loyalty stoutness have been the chief means under God to enfranchise our Kings kingdoms Church from the manifold Antichristian Tyrannies Usurpations Oppressions Taxes Vassallages Slavery of domineering Popes in all ages as the premises with other instances sufficiently evidence And upon this ground it was by reason of the Popes incessant Usurpations in former times upon the Royalties Rights Liberties both of the Crown Realm and Church of England that the Nobles in our Parliaments were in the very Writs of Summons ever called thereunto to consult and treat with the King Prelats Lords and Great men of the Realm of certain weighty and arduous affairs concerning the State and Defence of the Realm ET ECCLESIAE ANGLICANAE and the Church of England the Defence of the Church as well as Realm against the Popes incroachments being one chief business of our Lords and Greatmen in our Parliaments which now it seems is no part of our New-modelled Parliaments as some stile them there beieg neither DEI GRATIA nor Statum defensionem ECCLESIAE ANGLICANAE to be found in any of their New Writs that I have seen which had been an impious insufferable omission in all former ages This Clause engaging our Peers so stoutly to resist the Pope as the premises demonstrate which good service of theirs hoth in common Justice reason equity merited a Place and Vote for them and their Posterities in all our English Parliaments without any popular election Before I proceed to the next reason of our Lords sitting in Parliament I shall earnestly importune yea adjure all the antient Earls Barons Nobles and Great men of our Realm with all who have lately been or pretend to be any Knights Citizens Burgesses of real or pretended Parliaments our late and present swaying Grandees and all Lawyers Gentlemen Freemen of our English Nation seriously to review and cordially to ponder all the forecited memorable presidents of their Noble Gallant publike spirited Ancestors here recited and bundled up together for their information reformation and undelayed imitation in this and the precedent reason both in procuring regaining reestablishing the Great Charters of our fundamental Liberties Rights Properties Freedom with solemn New publications Excommunications Execrations Oaths Confederacies Penalties Laws Edicts for their own and their Posterities benefit In denying opposing resisting all unreasonable or illegal Aids Subsidies Tenths demanded intreated of or exacted from them by our Kings upon real or pretended Necessities Wants Wars or defence by Sea and Land their bold frequent unanimous magnanimous reprehensions of our Kings and their evil Counsellors to their faces for their Exorbitances Misgovernment Exactions Oppressions Violations of their Great Charter Laws Liberties Privileges Oaths Promises and unnecessary Warrs or Expences without their publike Counsel or advice in their resolute inflexible unanimous resolutions oppositions both in and out of Parliaments against all illegal Papal Encroachments Usurpations Exactions on the Rights Privileges of the Crown Kingdom Church Parliament Clergy People upon every fresh occasion and in their vigilant indefatigable zeal earnest care diligence with the hazard of their Limbs Lives Liberties Estates and effusion of their bloud for the publike Liberty Freedom Ease weal good Government of the Nation according to those wholsom Charters Laws and Ordinances which they procured for that end with much industry strife and opposition in many successive Parliaments And then let them all with confusion of face consternation of spirit and grief of heart seriously consider how stupendiously monstrously and incredibly they have all for near ten years last past most desperately apostatized degenerated both from the Heroick Noble Gallant Memorable Presidents Practices Courage Zeal of these their Renowned Ancestors in every of these particulars and from their own Praiseworthy Actions Remonstrances Councils Parliamentary and Military proceedings of like Nature under our two last Kings out of unworthy un-English unchristian Cowardize Fear Self-love Sluggishness Sottishness Supineness after all their late solemn publike Protestations Remonstrances Declarations Vows Oaths Leagues Covenants near ten years bloudy intestine Wars the overprodigal expence of many Millions of Treasure and whole Oceans of precious Christian Protestant English bloud for the real or at least pretended Defence alone and maintaining secuting those antient undoubted Fundamental Great Charters Laws Liberties Properties Privileges and Rights of Parliament exempting us from all future arbitrary tyrannical illegal Exactions Taxes Excises Imposts Imprisonments restraints exiles and executions which they have now all most ignobly submitted to without the least manly publike or private Opposition contradiction or care activity to break off those iron yoaks of bondage and intollerable perpetual burdens which some Impudent Intruders and new Aegyptian Tax-masters have most illegally imposed on them as if they were all resolved to renounce all their former Great Charters Laws Liberties Privileges and Rights of English Nobles Parliamentmen Freemen and to becom the basest bondslaves under heaven So that if these our Nobles Ancestors should now rise from the dead they might justly stand amazed at this their ignoble slavish cowardize and universal degeneracy yea disclaim them as spurious and none of their heroick English progeny and they all may justly demand this Question from themselves
elect such other persons to represent assent and vote for them in Parliament in whom they most confided Sixthly our Peers in Parliament though they there serve for the good of the whole Kingdom which hath always trusted to them in matters of Counsel Judicature and making Laws yet they represent no persons but themselves only or their families Tenants Friends and Allies which depend upon them and bear their own expences which are so great and chargeable that the Abbot of St. James without Northampton in the Parliament of 12 E. 2. and the Abbot of Leicester in the the 26 of E. 3. being summoned to Parliament petitioned and procured themselves and their successors to be exemped from any future summons to and attendance in the Lords House as Barons of the Realm both because they held no lands of the King by Barony but only in frank almoign and their Predecessors had not formerly or usually been summoned to Parliaments sed vicibus interpolatis only And likewise because it would tend to the great grievance and loss of them and their houses and much impoverish them by reason of the great expence it would bring upon them One Peer and his retinue expending more every Parliament than the wages of 40 or 50 Knights and Burgesses amount to Wherefore there is no shadow of reason why the people should elect them since they doe not represent them nor pay them wages as they doe to their Knights Citizens Burgesses who serve for and represent them Wherefore their Levelling Oppugners may as well argue That our Nobles ought to be elected by the people to their Honors Lands Estates which descend unto them from their Ancestors not from the common people as that they ought to sir in Parliament by the peoples election only to represent themselves in their own right not the people And that the Knights of the Shire ought to be elected to their dignity of Knighthood which the King only confers on them or to their Lands and Freeholds which they enjoy in their own right because they are elected by the Free-holders to sit in Parliament in their right who elected them nor their own alone which Barons doe not 7ly On these grounds the suppressing debasing captivity or slaughter of the Princes Lords and Nobles of a kingdom or Nation is by God himself defined to be an immediate forerunner concomitant cause of the Kingdoms Nations ruine and slavery and a matter of great lamentation Ezech. 19.1.14 c. 17.12 Lam. 1.6 c. 2.2 c. 5.12 Prov. 19.10 c. 30.21.22 Eccl. 10.5 7. Isay 3.4 c. c. 34.11 12 13. c. 40.23 c. 43.28 Jer. 4.9 c. 27.20 c. 29. c. 25.18 19. c. 50.35.41 51 55. c. 52.16 Hos 7.16 Amos 2.15 c. 2.2 3. 2 Kings 24.14 Mich. 3.7 2 Chron. 24.23 Jer. 24.8 9. And the continuing of Kings Princes and Nobles in honour and power in any kingdom and nation are reputed and resolved by God to be the greatest honour happiness defence safety and preservation of that kingdom and people Jer. 17.24 25. c. 22.4 Eccles 10.17 Jer. 30.21 Psal 68.27 28. Prov 8.15 16. Isay 32.1 1. Chron. 23.2 c. c. 28.1 c. c. 29.24 25. Gen. 17.6.16 c. 35.11 2 Sam. 11 12. 1 Chron. 14.2 c. 28.4 5. c. 2 Chron. 2.11 c. 9.8 1 Kings 11.32 36. 2 Chron. 21.6 7. 2 King 8.18 19. 1 Kings 15 45. 2 Chron. 23.3.11.20 21. c. 9.26.27 Numb 24.7 Ezech. 37 22 29. Mich. 2.13 c. 4.8 Therfore they cannot be rejected suppressed by us now without apparent danger ruine and desolation to our kingdom whatever frantick Levellers and others fancy to the contrary who would be more than Kings and Lords themselves over the Nation could they once suppress both King and Lords as they design and endeavour By all which premises it is most apparent That our Lords and Barons sitting voting in Parliament who if you take them poll by poll have in all ages been more able Parliament-men States-men in all respects than the Commons though chosen by the people who alwayes make not choice of the best and wisest men as experience manifests is not only just lawfull in respect of Right and Title but originally instituted upon such grounds of Reason Justice Equity Policy as no rational understanding man can dislike or contradict but must subscribe to as necessary and convenient and so still to be continued supported in this their Right and Honour to moderate the Excesses Encroachments both of King and Commons one upon the other and keep both of them within their just and antient bounds for the kingdoms peace and safety The rather for that the very Act made this Parliament for the preventing of inconveniences happening through the long intermission of Parliaments not only enacts and requires ALL the Lords and Barons of this Realm to meet and sit in every Parliament under a penalty but likewise prescribes an Oath to the Lord Keeper and Commissioners of the Great Seal under severe penalties to send forth Writs of Summons to Parl. TO THEM ALL and in their default enables and enjoyns the Peers of the Realm or any twelve or more of them to issue forth Writs of Summons to Parliament under the Great Seal of England for the electing of Knights Citizens and Burgesses which Act will be meerly void and nugatory if their Votes and Right to sit in Parliament be denyed or the House of Peers reduced to the House of Commons which this very Statute doth distinguish Now whereas our whimsical Lilburnists and Levellers object that the Lords have no right to sit or vote in our Parliaments because they are not elected as Knights and Burgesses by the people under which Notion alone when thus elected they will admit them a place and vote in the Commons house but not otherwise I must inform these Ignoramusses that by the Laws Statutes of our Realm and the custom resolution of our Parliaments the Earls Lords and Barons of the Realm are altogether uncapable of being elected Knights or Burgesses to serve in Parliament and their elections as such meerly void and null in Law to all intents This is most apparent 1. By the very words of the writs of Summons to the Lords whereby they are summoned Nobiscum cum caeteris Praelatis Magnatibus et Proceribus dicti Regni nostri colloquium habere tractare c. vestrumque consilium impensuri c. not to treat conferr and consult with the Knights Citizens and Burgesses 2. By the express words of the Writs for the electing of Knights Citizens and Burgesses which have the same clause and then enjoyn the Sherifs to cause to be elected and returned duos Milites magis idoâ—eos discretos Comitatus praedicti de qualibet Civitate duos Cives de quolibet Burgo duos Burgenses de discretioribus magis sufficientibus c. ad faciendum et consentiendum hiis quae tunc c. Which disables them to elect any Lords or
Barons being no such Knights Citizens or Burgesses as the writ enjoyns them to elect and return 3. By all the Statutes for electing Knights Citizens and Burgesses recorded in Rastall Tit. Parliament the Lords being not within their words or intention 4. By the Great Charter of King John and express Statutes of 5 R. 2. Stat. 2. c. 4.31 H. 8. c. 10. Rot. Par. n. 10. which disable them to sit amongst the Commons but only in the Lords house among their Peers 5. By the very words of the Patents of their Creation which authorize and prescribe all Dukes Earls Viconts Barons in direct terms Quod in omnibus tenerentur tractentur et reputentur ut Duces Comites Barones quod haeredes sui masculi et eorum quilibet habeat teneat possideat sedem locum et vocem in Parliamentis publilicis Comitiis et Consiliis nostris Haeredum et Successorum nostrorum infra Regnum nostrum Angliae inter alios Duces Comites et Barones not amongst the Knights Citizens and Burgesses ut Duces Comites et Barones Parliamentorum Publicorum Comitiorum et Consiliorum not as Knights Citizens or Burgesses 6. By Sir Edward Cooks 4 Institutes p. 46 47. and Mr. Seldens Titles of Honour p. 736 737. who resolve That a Baron or Lord of Parliament is not eligible to be a Knight Citizen or Burgess of the House of Commons as was resolved in the case of Thomas Camoyes who was not only a Baronet but also a Baron and Lord of Parliament The Lord Camoyes being elected by the Freeholders of the County of Surrey for one of the Knights of the Shire to serve in Parliament for them Anno 7 R. 2. thereupon the King by advice of Council declared his election to be null and void in Law and commanded a new election of some other fit person to be made in his place by this memorable Writ extant on record Rex Vicecomiti Surriae salutem Quia ut accepimus tu Thomam Camoyes Chivaler qui Baronettus est sicut quamplures antecessorum suorum extiterunt ad essendum unum Militum venientium ad proximum Parliamentum nostrum pro Communitate Comitatus praedicti de assensu ejusdem Comitatus eligisti Nos advertentes quod hujusmodi Baronetti ante haec tempora in Milites Comitatus ratione alicujus Parliamenti elegi minime consueverunt ipsum de officio Militis ad dictum Parliamentum pro communitate Comitatus praedicti venturi exonerari volumus Et ideo tibi praecipimus quod quendam aâ—ium Misi em idoneum et discretum gladio cinctum in loco ipsius Thomae elegi et eum ad diem et locum Parliamenti praedicti venire facias cum plena et sufficienti potestate ad consentiendum hiis quae in Parliamento praedicto sicut juxta renorem prioris Brevis nostri tibi pro electione hujusmodi militum directi et nomen ejus Nobis Sciri facias Teste Rege apud Westmonasterium octavo die Octobris 7ly Both Houses of Parliament in their Remonstrance of Nov. 2. 1642. declare and publish in print to all the World This to be so clear and fundamental a privilege of Parliament That no Member of either House of Parliament is to be taken away or detained from the service of the House whereof he is a Member until such time as that House hath satisfaction concerning the cause and the cause be heard in Parliament first and dismissed from it That the whole freedom of Parlament dependeth upon it For who seeth not that by this means under false pretences of crimes and accusations such or so many Members of both or either Houses of Parliament may be taken out of it at any time by any persons to serve a turn and to make a MAJOR PART of whom they will at pleasure So as the freedom of Parliament dependeth in a great part on this privilege yea without it the whole Body of the Parliament will be destroyed by depriving it of its Members by degrees some at one time and others at another time as both Houses further remonstrate in their Declaration of October 23. 1642. Which as it infallibly demonstrates that the Lords House or Members cannot be taken away or taken from them against their wils without the destruction subversion of the whole Parliament of which they are chief Members the Judicial power of Parliaments residing principally in that House if not wholly So it likewise clearly resolves that no Peer or Member of the Lords House can be elected a Member of the Commons house For if the election of the Freeholders Citizens or Burgesses of any County City or Borough of a Duke Earl Lord or Baron of the Realm to be a Knight Citizen or Burgess in Parliament should be valid in Law to make them legal actual Members of the Commons house it would then lie in their powers to un-Peer un-Lord and degrade any Nobleman yea all the Earls Peers Lords Barons of the Realm and their Posterity at their pleasures to reduce them and the whole House of Peers into the Commons inferiour house and so quite dissolve the Lords House in high affront dishonor of the Lords and their House and of the Kings Soveraign royal Authority the fountain of all Honor and that without any legal trial or Judgment by their Peers or just cause of degradation on their parts against the express words and meaning of Magna Charta c. 29. And if any Lords upon such Elections should so far degenerate debase or degrade themselves as to accept thereof and ignobly sit and vote as Members of the Commons House both they and their posteritieâ— for such an ignoble act meritoriously deserved to be for ever degraded from their Nobility and secluded from all future sitting in the Lords House as Peers becoming thereby the very shame scorn scandal of Nobility fit only to be ranked with the basest Peasants to whom these Levellers would now equallize them Yea it would be now no less than wilfull perjury in any Freeholders Citizens Burgesses to elect them Knights or Burgesses and in themselves to accept of such Elections when chosen and in the whole House of Peers and Commons too once to permit allow approve or connive at such elections after their late Protestation Vow and Solemn League and Covenant to maintain to their power the Rights Privileges of Parliament and both Houses of Parliament whereof this is an unquestionable Right and Privilege That no Member of the Lords House should be elected a Knight Citizen Burgess or brought down from thence to sit only as a Commoner in the Commons House so long as he continues a Peer or Member of the Lords House a distinct House from and superior to the Commons House in all ages as its Title of the Lower House and their standing alwayes bare before the Lords with other evidences demonstrate nor any Knight Citizen or Burgess a true real Member of the House of Peers
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
were first made never sate in Parliament Whereas this writ hath no operation or effect to enoble him or his posterity unless and until he actually sit in Parliament for if he die before he sit or sit not at all neither he nor his issue are Noble This distinction and concession of his contradicts his former opinion That the Writ it self doth not ennoble the person and his heirs for if it did then he and they should be ennobled by it though he died before he â—aâ—e in Parliament because they are thus ennobled by Letters Patents which create them Nobles or Peers and make them actually such though they never sit in Parliament 7ly Sir Edward Cook in his 4 Institutes p. 44 45. thus resolves If the King by his Writ calleth any Knight or Esquire to be a Lord of the Parliament he cannot refuse to serve the King there in communi illo confilio for the good of his Country But if the King had called an Abbot Peer or other regular Prelate by Writ to the Parliament to the Common Council of the Realm if he held not of the King per Baroniam he might refuse to sit in Parliament because quoad secularia he was mortuus in lege and therefore not capable to have a voice or place in Parliament unless he did hold per Baroniam and were to that Common Council called by Writ which made him capable And though such a Prelate regular had been often called by Writ and had de facto had place and voice in Parliament yet if in rei veritate he hold not per Baroniam HE OUGHT TO BE DISCHARGED OF THAT SERVICE AND TO SIT NO MORE For that the Abby of Leicester was founded by Robert Fitz Robert Earl of Leicester albeit the Patronage came to the Crown by the forfeiture of Simon de Mountford Earl of Leicester yet being of a Subjects foundation it could not be holden per Baroniam therefore the Abbot had no capacity to be called to the Parliament and thereupon the King did grant Quod idem Abbas successores sui de veniendo ad Parliamentum Concilia nostra vel haeredum nostrorum quieâ—i sint exonerati in perpetuum But all these Cases abovesaid and others that might be remembred touching this point as little Rivers do flow from the fountain of Modus tenendi Parliamentum where it is said Ad Parliamentum summoneri venire debent ratione tenurae suae omnes singuli Archiepiscopi Episcopi Abbates Barones Priores alii Majores Cleri qui tenent PER COMITATUM VEL BARONIAM ratione hujusmodi tenurae nulli minores nisi eorum praesentia necessaria utilis reputetur To which purpose he likewise cites the Act of Parliament of 10 H. 2. called the Assize of Clarindon and the Great Charter of King John in the 17 year of his reign here forecited p. 21 30 31. For Modus tenendi Parliamentum here so much magnified I have already p. 20 sufficiently discovered it to be a late forgery and imposture out of the very Treatise it self by undeniable proofs which I wonder Sir Ed. Cook Mr. Agar and other pretended judicious Antiquaries observed nor being so obvious yet though it be an imposture and erronious in other things I shall grant it true in this particular here cited As to the point in controversie had Sir Ed. Cook here thus distinguished in the case of Laymen Knights Esquires as he doth in case of Abbots Priors and Religious persons that if the King had by his Writ called any Laymen Knight ot Esquire to the Lords House of Parliament by his general Writ who held of him in fee or fee tayl per Baroniam and was a Baron by tenure that this had enobled him and his posterity as Barons he could not refuse to serve the King as a Baron in this Common Councel for the good of his Country his opinion might have passed for good Law For such who had lands in fee or fee tayl of the King by an intire Barony being Barons and Peers of the Realm by their very tenures ought of right by the express words of the Statute of Clarindon the Great Charter of King John and by the Common Law and Custom of the Realm to be summoned as Barons by the Kings special writs directed to them to all Parliaments and great Councils of the Realm by vertue of their Tenures as well as Bishops Abbots Peers and other regular Prelates who held by Barony yet the writ in this case doth not make them and their heirs Barons by writ nor give them a right to sit and vote in Parliament but only declare them and their heirs to be Barons and to sit there as Barons by their Tenure not by vertue of the Writ it self But if the King by this general Writ summon any Layman Knight or Esquire to the Lords House who holds not by Barony this doth no more make him a Lord or Baron in perpetuity to him and his heirs nor no more oblige him or his heirs to sit there than Abbots but that they may refuse to serve in Parliam if he were no Peer before being not obliged by any Law to sit and serve therein as a Baron or Member of the House of Peers by the Writ alone which doth not bind an Abbot Prior or regular Prelate or ennoble him and his Successors to be Peers and Barons of the Realm though they hold only by Frankalmoign not by Barony the Tenure By Barony being that alone which obligeth both of them to sit and serve in Parliament unlesse they be created Dukes Earls Viscounts Lords Peers or Barons by Patent or else by a special Wrir wherein the estate and dignity of a Baron is both created and limited as in the Writ that created Sir Henry de Bromflet Baron of Vescey in the 27 year of King Henry the 6 where after the Nullatenus omittatiâ— this Clâ—se is inserted Volumus enim vos haeredes vestros maâ—culos de corpore vestro legitime exeuntes BARONES DE UESCY EXISTERE Teste c. If a Layman who holds not by Barony be created a Duke Earl Baron or other Peer of the Realm for life in tayl or in fee by Letters Patents or an Abbot or Prior who holds not by Barony and his Successors be created Lords of Parliament by a special Patent of the King as Richard Banham Abbot of Tavestoke and his Successors were bâ— King Hen. the 8. to whom the King granâ—ed by special words Ut eorum quilibet qui pro tempore fuerit Abbâ—s sit erit unus de Spiritualâ—bus religiosis DOMINIS PARLIAMENTI NOSTRI haeredum successorum nostrorum gaudendo honoreâ— Privilegio libertaribus ejusdem This obligeth them to appear and serve in Parliament upon every Writ of Summons and they their heirs males and Successors cannot refuse to serve or voluntarily absent themselves without cause or license under pain of being fined
And if so then questionless such who hold not by an intire Barony and are not Majores Barones by Patent or Inheritance now cannot be created such by a meer general writ of summons neither can the King by his general writ create or make them such against this antient Law and usage ever since And the Earls Lords and Great honorary Barons who excluded all such from sitting in Parliament with them as Barons and their Peers then may much more exclude and refuse to admit such into their house or to sit with them if summoned now because their dignity honor power would suffer much diminution thereby and the King might by writ at any time call so many to their House as might overtop overâ—ote and alter their very Constitution as an House of Peers I shall close up this point of the Lords sole right to sit in Parliament with one or two memorable presidents In the 7. year of King Edward 2. as Walsingham stories in quindena Paschae per Regis brevia citatae sunt generaliter omnes Parliamentales personae pro Parliamento teuendo Londoniis Sed multis Proceribus praetendentes impedimenti causas nihil hâ—c vice factum suâ—t So Anno 1316. King Edward in the 9th year of his reign celebravit Concilium apud Clarindon sed Magnates noluerunt interesse Whereupon nothing was there effected The Lords presence being held then so necessary that by reason of the absence of divers of them upon some real or pretended impediments though all legally summoned by the Kings writs nothing was done or concluded by those who met who held themselves no compleat or legal Parliament without them Whereas in the Parliament of 5 E. 2. some of the Judges and Assistants departing from the Lords and divers Knights Citizens and Burgesses from the Commons house without license yet the Lords continuing all together and making Ordinances for regulating the Kings house and Revenues the Parliament still continued and these special writs were sent to recall the Judges and Lords Assistants quod redeant exinde et sine licentia nostra speciali durante Parliamento praedicto non recedatis Et hoc sicut indignationem nostram vitare volueritis nullo modo omittaris Teste Rege apud Haddely 12 Septemb. PER CONSILIUM And this general writ was sent to the Sheriff of Yorkeshire and all other Sheriffs of England to summon all the Knights Citizens and Burgesses in their several Counties to return thither or else to elect other fit persons in their places Praecipimus tibi firmiter injungentes quod illos Milites Cives Burgenses de Balliva tua quos nuper ad praesens Parliamentum nostrum apud London inchoatum de mandato nostro venire fecisti et qui ab eodem Parliamento certis de causis recesserunt quod redeant exinde c. vel alios ad hoc idoneos loco ipsorum SI AD HOC VACARE NON POSSUNT usque ad Westmonasterium ad dictum Parliamentum quod ibidem duximus continuandum c. proxime futur ad ultimum cum sufficienti potestate Comitatus tui Civitatum Burgorum praedictororum ad consentiendum hiis quae tunc ibidem contigerint ordinari c. Teste Rege apud London xi die Octobris This Parliament being thus continued Claus 5 E. 2. m. 25. Special license was granted to some LORDS to goe home who made Proxies to other Lords to supply their places by these words Deputamus in loco nostro in Parliamento and this in the Writ of Prorogation This I hope will suffice to convince all Levellers and Gainsayers of the LORDS undoubted antient Hereditary just Right and Title to sit vote in all ENGLISH PARLIAMENTS though not elected by the people SECTION II. Wherein the Lords House sole Right of Judicature in Parliament without the Commons is fully cleared by Presidents Histories Records in all ages and undeniable Reasons and that both in Criminal Civil Ecclesiastical Causes of all sorts as well in cases of Commoners and Clergymen as Temporal Peers persons of the highest degree proper for Parliament IT is the General confession resolution assertion both of Lawyers Law-books the Parliament and Statute of 31 H. 8. c. 10. and all who have written of our Parliaments That the Parliament of England is the antientest honourablest highest Court and Supremest Judicature in the Realm to whose Judicature all other Courts Persons Subjects of the Realm are subject accountable for all Injuries Oppressions Crimes Wrongs Corruptions Errors Abuses Grievances Misdemeanors Treasons Contempts Frauds false Judgments and matters of publike or privat concernment not properly triable remediable or punishable in other inferior Courts of Justice and that Court to whom all Appeals concerning Misproceedings Errors or Injustice in other Courts or places ought to be made and from whose Injustice and Sentence there is no appeal but only to another Parliament as in the case of General Councils as Divines assert there is no appeal but to another general Council in Ecclesiastical affairs concerning the Universal Church or matters of Faith This being an unquestionable Principle and Truth the sole Question will be in what House or Persons in Parliament this Supreme Judicatory or judicial power resides Whether in the King alonâ— or Lords alone or King and Lords jointly or in the House of Commons alone never made a question â—il now by Lilburn and Overton or in the King and House of Peers not separate from but joyntly with the Commons House And for my part I conceive it resides wholly and solely in the King and House of Lords not in the House of Commons which hath no part nor share therein singly considered in it self nor yet joyntly with the King and Lords but only in some special cases and proceedings as when and where the King and Lords voluntarily require their concurrence or where the judgement and proceedings in Parliament are by way of Bill or Act of Parliament or when a judgement passed or confirmed by Bill or Act to which the Commons consent was requisite is to be altered or reversed but in no cases else that I can find To make this ouâ— beyond contradiction it must be necessarily granted by all and cannot be gainsaid or disproved by any that this Supreme power of Judicature hath been vested in our Great Councils and Parliaments even from their beginning and original institution it being the antientest as well as highest and honourablest of all other Courts That it had this Soveraign Jurisdiction vested in and exercised by it both under our British Saxon Danish and Norman Kings I have elsewhere evidenced and shall anon make good by undeniable presidents Now the Great Parliamentary Councils under them consisted only of the King the Ecclesiastical and Temporal Lords Earls Barons Nobles without any Commons House or Knights of Shires Citizens or Burgesses elected by the people as I have already touched and manifested more fully in other Treatises yea
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
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
Seignour le Roy que ore est tenue a Westminstre lanquinzisme per examinent dez Praelates Contes Barones et tote la commune de Realm fuist notoriement trove que vostre piere vous Hugh fuâ—stez agardez TRAYTOURS enmys del Realm pur quel par assent commandment nostre Seigniour le Roy vostre Piere vous Hugh fuistez exules del Realm sanz james revenir si ceo ne fuist par lassent commmandment nostre Seignious le Roy ceo en playne Parlement duement al ceo summounz And for his returning into England against this Act and his manifold murders oppressions and misdemeanors since there recited at large he was condemned to be hanged drawn bowelled quartered and beheaded which was executed accordingly December 8. and his head fixed on a Poll and set upon London bridge The Repeal of the Spencers exile was not long after repealed and the Act for their exile re-confirmed in the Parliament of 1 E. 3. ch 1 2. in the Statutes at large which recites That they were exiled disinherited and banished out of the Realm by the Commons assent and award of the Peers and Commons of the Realm and by the assent of King Edward as Traytors and Enemies of the King and of his Realm And that he by the Common Counsel of the Prelates Earls Barons and other Great men and of the Commonalty of the Realm in his Parliament holden at Westminster did ordain and establish That the repeal of the said Exile which was made by Duress and force should be adnulled fâ—r evermore and the same exile made by the award of THE PEERS AND COMMONS BY THE KINGS ASSENT as aforesaid shall stand in its strength in all points after the tenour of every Article therein contained But this Act of repeal by the like power and assent was repealed as erronious and the heir of the Spencers restored to blood and Lands by the Parliament of 21 R. 2. Rot. Parl. u. 35. to 57. And that whole Parliament again repealed and nulled by 1 H. 4. c. 3. Cooks 4 Instit p. 25. This was the issue of this very first Attainder wherein the Commons concurred with the Lords being carried by force and power on all hands in those turbulent times In the Parliament of 11 R. 2. ch 1 2 3 4 5 6 7. in the Statutes at large Alexander Archbishop of York Robert de Vere Duke of Ireland Michael de la Pale Earl of Suffolk Robert Tresylien chief Justice R. Belknap with sundry other Judges Lawyers Knights Gentlemen Clergymen and other Commons and Prelates were impeached by the Duke of Glocester and other Lords Appellants of High Treason in 36 Articles thereupon attainted condemned judgement of death banishment forfeiture of their lands and estates given against them in Parliament by the Lords without the Commons After which the Lords exhibited a Petition to the King for the confirmation of the said Attainders and forfeiture Whereupon the King considering the matâ—er of the said Petition to be true at the request of the said Commons of the assent of the Prelates Dukes Earls Barons and all others of this present Parliament granted the request of the said COMMONS in all points after the form of the said Petition And moreover of the assent aforesaid passed sundry Acts touching their Attainders Judgements Exiles and forfeitures which all may peruse at leisure in the Statutes at large In the Parliament of 21 R. 2. upon the Petition of the Commons by the like assent c. 2. to 12. in the Statutes at large these Attainders Judgemens forfeitures and the whole Parliament of 11 R. 2. were repealed as erronious and nulled Yet after by the Parliam of 1 H. 4. c. 3. the Parl. of 21 R. 2. is nulled and that of 11 R. 2. revived and confirmed with all the attainders and Judgements therein given In the Parliament of 9 H. 6. c. 8. Owen Glendor formerly endited and attainted of high Treason for his grand insurrections and rebellions by the assent of the Lords spiritual and temporal and of the Kingâ— at the special request of the Commons was by special Act declared a Traytor and all manner of Indictments Inquisitions Processes Records Judgements Ordinances Statutes made against him authorized established for Law by assent of the Lords and Commons in Parliament In the Parliament of 29 H. 6. c. 1. The King by the advice of the Lords spiritual temporal and at the request of his Commons by a special Act attainted John Cade of several High Treasons for traytorously imanâ—ging the Kings death the destruction and subversion of this Realm in gathering and levying great numbers of the Kings people and them exciting to make insurrection against the King his regalty crown and dignity and to make and levy war falsly and trayterously against the King for which they confiscated all his Lands Tenements rents and possessions to the king corrupt and disable his blood for ever and enact him to be called a false Traytor within the Realm for ever And in 31 H. 6. c. 1. with the advise and assent of the Lords and at the request of the Commons it is ordained established that the said John Cade shall be reputed had named and declared a false Traytor to the king and all indictments and proceedings had and made under the power of his Tyranny were clearly repealed and adnulled for ever and to be of no effect but void in Law and put in oblivion and destroyed for ever as purposed against God and Conscience and the Kings royal estate and preheminence and also dishonourable and unreasonable In the Parliament held Anno 38 H. 6. rot Parl. n. 5. to 26. Richard Duke of York with sundry other Lords and Commons were attainted of High Treason by Bill for conspiring and levying war againâ—t the King And in the Parliament of 1 E. 4. rot Parl. n. 12 17. to 37 King Henry the 4 H. the 6 Queen Margaret Edward Prince of Wales Henry Duke of Somerset the Earl of Devonshire with sundry other Knights Esquires and Gentlemen Priests and Yeomen were attainted of High Treason by Bills for levying war against king Edward the 4. In the Parliament of 4 E. 4. rot Parl. n. 2. to 39. the Duke of Somerset Henry Beauford Sir Ralph Piercie with sundry other Knights Esquires and Gentlemen were attainted of High Treason by Bill for levying war against the king most of which attainders in the Parliaments of 12 E. 4. rot Parl. n. 15. to 36.13 E. 4. n. 45.14 E. 4. n 45.27 28 29 31 32.17 E. 4. n. 19 20 21 22. E. 4. n. 23 were repealed by Bills and the parties or their heirs restored to blood and Lands In the Parliaments of 14 E. 4. rot Parl. n. 34 35 36 37. Sir Richard and Sir Robert Wells John Vere Earl of Oxford Sir Thomas Vere with sundry more Knights and Gentlemen were attainted by Bill of High Treason for Levying war against the king and some of
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
ill counsellors about him neglecting hating banishing his own Nobles and natural Subjects as Traytors without any just cause or legal trial and subverting confounding their Lawes Liberties Justice c. 2ly To manifest the proceedings impeachments in these Parliaments against the Earls and Nobles refusing to appear at these Parliaments upon the Kings these successive Writs of Summons his outlawing them of high Treason and spoiling burning seising their houses Lands thereupon being adjudged by the Lords in Parliament to be illegal and afterwards reversed as unjust and against the Law Claus 18. H. 3. m. 19. 3ly To manifest that the Lords in Parliament would not act any thing in the absence of these eminent Lords refusing to appear 4ly To evidence the Sentence and Justice of the King and Lords against these ill Counsellors Aliens and Traytors to the Publique whom they caused to be removed from the King Court Kingdom put from their publike Trusts and Offices called to an account publikely arraigned before the King himself and his Justices by whom they were imprisoned their lands confiscated and better Counsellors of State and Judges put into their places Anno 1240. Accusatus est graviter Comes Cantiae Hubertus de Burgo CORAM REGE ET CURIA TOTA London ubi post multâ—s disceptationes ut iraâ—undia Regis quae immoderate nimis conâ—â—â— ipsum excanduerat quiesceret ADJUDICAâ—UM EST ut quatuor Castra sua Charissima scilicet Blancum Castrum Grosmunt Scenefrithz Haetfeild Domino Regiâ— resignaret ut caetera sibi cum Regis benevolentia in pace remanerent Anno 1258. The Nobles complained in Parliamnnt of the Kings advancing his half Brothers who were aliens swaying all things and impoverishing the Realm and of their intollerable pride insolency and injuries and the Earl of Leicester particularly complained to the Parliament of William de Valentia non tamâ—n Regi sed universitati praecordialiter est conquestus exigens instanter sibi justitiam adhiberi The same year the Great men and Nobles of the Land Videntes Regnum undique desolatum tum exactionibus tallagiis tam Curiae Romanae quam Regis quam etiam alienigenarum praecipue Pictavensium elatione praesumptuosa fivore regio in regno nimium in sublimi provecta tantas in Anglia Dominationes sibi usurpantium magisteria â—ost Pentecosten apud Oxon. COLLOQUIUM GENERALE CELEBRAVERUNT being summoned to this Parliament by the Kings Writ super hiis necnon status regni meliorationâ— efficaciter exquisite tractaturi Quo non sine armis equis electissimis muniti venerunt ut si Rex alienigenae suiâ— provisionibus statutis sponte contemnerent assentire vigore opposito cogerentur aut ipsi alienigeni universaliter sine morae regnum Angliae poenitus evacuarent Quas quidem provisiones Oxon. stat necnon ET MAGNAM CHARTAM TAM DE LIBERTATIBUS ET DE FORESTA tandem Domino Rege ad suorum PROCERUM observantiam statutorum inclinato per queÌ„dam de suis militibus tactis sacrosanctis jurameÌ„tum praestante 24 prudentium virorum Nationis Anglicanae quos ad Regni gubernationem sub eodem duxerint inter se eligendos consilio se commendavit considerationâ— His igitur pâ—ractis fidelitatem Regi regni ET AD CONSIDERATIONEM SUORUM PARIUM STARE omnes quotquot in regno commorare vellent fecerunt jurare The Nobles in this Parliament required that all the Poictovines might surrender up all the Castles they held in England into the Kings hands Whereupon they peremptorily swore by the passion and wounds of Christ that they would never doe it whiles they breathed Whereupon the Earl of Leicester said to William of Vairencia the most insolent of them all That he should either surrender up the Castles he held of the Kings without delay VEL CAPUT AMITTERET on he should lose his head Similiter ALII COMITES ET BARONES DICEBANT etiam constructissime assertione consistentes The Poictovines being very much terrified with these words not knowing what to doe and fearing to fly to any Castle lest they should there be besieged and soon taken or starved by the Lords fled secretly and speedily from the Parliament to Winchester not sparing their horses sides and setting spies upon hills and Towers to observe whether the Barons pursued them who hearing of their flight commanding all their followers to arm themselves and dissolving the Parliament without adjourning it to any certain day pursued them to Winchester where the King and Nobles holding another PARLIAMENT the Poictovines JUDIDIUM EXPECTARE NOLENTES nec ausi exhibitionem JUSTITIAE quae singulis secundum juramentum REGIS PROCERUM debebatur expestare being the sole judges of them in Parliam for their exorbitant offences they presently fled out of the Realm beyond the Sea to avoid their sentence Hereupon Significatum est literatorie ad multos etiam quos praedicti Pictavienses impudentur offenderant ut â—nerelam super hoc reponeâ—res ostenderent Maguatibus Regni daâ—a sibi a dictis Regis fratribus illata eas querelas dilucidantes constanter moras sequerentur ut sibi omnia secundum quod jus dictaret restituerentur Sed quia instabat tempus messium considerantes simultatem et instantes labores forte inutiles sequi renuerunt donec majorem cernerent opportunitatem The Lords in Parliament being willing to award them damages and reparations against the Kings own Brothers in Law upon complaint and clear proof of the injuries and damages they sustained by them Anno 1260. There falling out a great difference between King Henry the 3. and Prince Edward his Son Simon Earl of Leicester and other Nobles thereupon Convocato in praesentia Regis apud sanctum Paulum BARONAGIO habitoque prius tractatâ— de Eadwardo super injuriis Regi ut dicebatur illatis paratus est idem Eadwardus se omnium objectorum probare immunem et ad duorum Regum scil Patris sui et Avunculi provisionem in emendatione facienda se dare tractabilem dicens Omnes alios Barones et Comites sibi de jure non esse Pares nec suas in eum exercere discussiones Unde dâ—cuâ—a hinc inde veritate omniumque relatorum falsitate probata pacificato Regi concordatus est filius multiplicatis de jure inimicorum confusionibus Concordato itaque Eadwardo Regi et Reginae et aliis amicis mox querela subsequitur de Comite Leicestriae Simoâ—e super pluribus injuriis tam citra mare quam ultra contra Regem ut dicebatur perpetratis Praefixo igitur die ad respondendum se de objectis expurgandum idem Comes ad dictum diem licet breviorem paratus est quantotiens petitis satisfacere et ad discutiendam super oppositis veritatem omnium transmarinorum quam cismarinorum arbitrio obtemperare exceptis quinque tantum minutis tam suae quam Eadwardi discordiae seminatoribus Qâ—o audito Comes Gloverniae cum
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
Communi Iudicio Which he more amply relates in his History of England p. 69. to 77. Here we have judgement of banishment given against Gaverston by the Lords in Parliament 3. several times the 1. whiles a Commoner the two later whiles an Earl as an Enemy to the Realm and publike Traytor and a Sentence of death denounced against him in case he returned which was accordingly executed on him by the common Sentence of the Lords A Convincing proof of their Jurisdiction in criminal Causes both over Commoners and Peers His second banishment by the Lords was ratified by a Bill as the Spencers was to which the Commons gave their Assent as they did to two Acts in the Parliament of 7 Edward the 2. printed in Totles Magna Charta part 2. f. 43 44. Ne quis occasionetur pro reditu as also pro morte Petri de Gaverston made by the Grant and Assent of the King Archbishops Bushops Abbots Priors Earls and Barons ET TOUTE LA COMMVNALTIE de nostre Royalm By which Bill his Lands were all forfeited and giveâ— to the King as appears by Claus 1.2 E. 2. m. 5. where Hugh de Audeley the younger and Margaret his wife petitioned A nostre Seigneur la Roy son Counscil PRELATES COUNTS BARONS de la terre The Petition was for the Earldom of Cornwall after the death of Peter de Gaverston to whom it was given in general tayl Margaret being his daughter and heir because THE GREAT CHARTER wills that after the death of a Baron his heir shall have his heritage and mariage and the Statute of Westminster 2. wills That heirs in tayl shall not be prejudiced by the deed fine or feofment of their Ancestors and the GREAT CHARTER also wills That no man shall be outed of his freehold without the award and judgement of the Law of the Land Afterwards upon debate of this Petition pro eo quod recordatum fuit by the LORDS AND COMMONS that it had been AGREED BY THEM that all things given by the King to Gaverston and Margaret should be revoked per quod in hoc Parliamento modo per praefatos Praelatos Comiteâ— Barones et totain Communitatem Regni cousideratum est that the Earldom and all the rest of his Landâ— should remain in the King that all Charters of it should be repealed all enrolments cancelled quod est adjudicatum intretur ad Scaccarium et ad utrumque Câ—riâ—m there to be inrolled also And there is a writ directd to the Treasurer and Barons and Chief Justices of both Benches to inrol it in this Roll. This judgement being by way of Bill in pursuance of the former Bill for his attainder had the Commons assent thereto as well as the Lords though the Petiâ—ion here was directed only to the King and Lords for restitution not to the Commons who could not be Gaverstons proper Judges in Parliament being a Peer but only by way of Bill of Attainder In the 15 year of King Ed. 2. the two Sir Hugh Spencers Father and Son were articled against impeached and condemned of High Treason by the Lords in Parliament and exiled by their judgement without the Prelates or Commons who only consented to the Act for their banishment after the judgement given of which at large before to which I shall here annexe the Arricles of their impeachment being very memorable Alhonnour de Dieu de sainct esglise et de nostre seignour le roy et au profite de luy et de son royalmâ— a peace de quiete maintenir en son people et pur meinteynment de lestate de la Corone luy monstrent Praelates Counâ—z et Barons et les autres Pieres de la terre common du royalme contresir Hugh le Despenser le fitz et Sir Hugh le Despenser le Pier que come le dit sire Hugh le Despenser le fitz au Parlement Deverwike fuit nosme et assentu destre en lossice du Chamberlain nostre seignor le roy de servir en cel office come afferoit An quel parlement fuit auxi assentu que certeins Prelates et â—u res Grandes du roialme demorerent pres de roy par sâ—isons de lan pur meulx counseiler nostre seignor le roy sans queux nul grosse bosoigne ne se deveroit fair le dit sir Hugh le fitz attreit a luy syr Hugh son pier que ne fuit nient assentu ne accorde en parlement a demourer ensi pres de roy enter eux deux acroachant a eux royal power sur le roy fes ministers le guyment de son royalme a dishor our du roy emblemisement de sa corone et destruction du royalme des grandes et du people et sesoient les maluesiees desâ—us escriptes en compassant deâ—â—oigner le coer nostre seignour le roy des Piers de la terre pur avoir eux soule governance de la terre En primes que sir Hugh le Dispenser le fitz feusi coruce vers le roy et sur ceo coruce fist un bille sur la quel bille il voillet auoir en aliance de sir John Gyffarde de Brymmesfeld sir Richard de Greye et dautre davoir mesne le roy par aspertee de faire sa volunte issent que en luy ne temist mye que il ne â—e euâ—t fair â—a tenure de la bille sensuit sous escript Homage serement de ligeance est pluis par reson de la corone que per reason de person le roy pluis se lie a la corone que a la person ceo piere que avant que â—estate de la corone soit descendu nul ligeance est a la person regardant Dont si le roy par case ne se meisne par reasone en droit de la corone les leiges sont lies per sâ—rement fait a la corone de remeuer le roy et le state de la corone par reason auâ—rement ne serroit le serement tenus Ore fait a demander coment lem doit amesner le roy ou par suite de ley ou par aspertee par suite de ley ne luy poet home pas redresser â—ar il navera pas juge si ceo ne soit depart le roy En quel case si la volunte le roy ne soit accordant a reason si naveroit il forsque errour maintenue confirme Dont il covient pur le serement lauuer et quant le roy ne voet chose redresser oustre que est pur le common people malueis et damageous pur la corone a judger est que la chose soit ousle par aspertee que il est lie par â—on serement de governer son people ses lieges ses liege â—ont lies de govern en eide de luy en defaut de luy Et auxint par lour covin
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
Peers by Roger Moâ—timers power and procurement Anno 18 E. 2. petitioned that he might be restored to his Fathers blood lands and goods considering the said Earl was unduly put to death being not tried by his Peers according to the Law the grand Charter But for that the said Attainder was afterwards confirmed by Parliament he amended his Petition and prayed in such wise to be restored of the Kings meer grace Whereupon he was restored to all his Fathers lands and to Arundel Castle saving to the King all such lands as were given to this Earl by King Ed. 1. whereupon he did homage to the King in Parliament and had livery of the king of all his lands per assensum of the Lords as iâ— recorded in rot Fin. An. 3 E. 3. m. 14. Claus 4 E. 3. in dorso and Claus 5 E. 3. part 1. m. 2 3. In this Parliament of 4 E. 3. n. 6. The Lords claim to be JUDGES OF THEIR PEERS IN THAT FUTURE PARLIAMENTS in cases of Treason c. And n. 1. Roger Mortimer Ear of March who had formerly condemned and beheaded other Peers without any legal trial by their Peers and deposed murdered King Edward the 2. was by divine retaliation arrested at the Parliament held at Nottingham by the Kings command then sent Prisoner to the Tower impeached attainted condemned and executed himself as a Traytor without any hearing or personal defence BY THE LORDS AND PEERS AS JUDGES OF PARLIAMENT by the Kings assent The Articles of his Treasons Felonies and other misdemeanors entre in that Parliament Roll scarce legible now were read before the Lords against him and other of his companions The Articles against him are thus related by Walsingham Causae quae imponebantur eidem proue accepimus istae fuere writes Walsingham Prima causa quod fuit consentiers morâ— Regis Edwardi in castro de Berkley Secundo impositum ei fuit quod ipse impedivit honorem Regis et regni apud Stannyparke ubi Scoti fugerunt qui capi intersici potuerunt Tertio quod ipse accepit 20 millia mercarum a Scotis illas tunc permisit evadere turpem pacem postmodum inter Scotos et Regem ju venem sieri procuravit et super hoc Chartam Regis sieri fecit eisdem Et etiam illud vile matrimonium contractum inter sororem Regis et David filium Roberti de Brus consummari consuluit procuravit Quarto quod male consumpsit totam pecuniam in the sarris patris hujus Regis et Domini Hugonis de Spencer inventum et omnia bona regni postquam Angliam regina intravit suae dispositioni subjecit ita quod ipse Regina abundabant Dominus Rex egebat Quinto quod appropriavit sibi custodias et maritagia nobiliora per totam Angliam Et quod fuit malus Consiliarius Regis Reginae matris et nimis secretus cum ea ut dâ— aliis taceamus These with other Articles mentioned in the Parliament Roll being read thereupon Les ditz COUNTZ BARONS ET PIERS COME JUGGES DU PARLIAMENT as the Parliament Roll it self recites per assent du Roy in mesme le Parliament agarderent et ajugerent que le dit Roger COME TRAYTOUR ET ENEMY du ROY et du ROYALME fuist trâ—yne et pendis Upon which sentence without being called to answer the Earl Marshal by the Kings and Lords command assisted with the Mayor and Sherifs of London and the Constable of the Tower executed him the Thursday next after the first day of the Parliament Ubi mortis excepit sententiam trastus suspensus apud Elmes super communi furca latronum as Walsingham relates The Articles of this Regicides impeachment being very memorable and somewhat larger than those in Walsingham scarce legible in the Parliament Roll of 4 E. 3. I shall here present you with together with the manner of his apprehension and judgement out of Henry de Knyghton King Edward perceiving the great malice and cruelty of Queen Isabel his Mother and Mortymer that they occasioned many seditions favoured the Scots to the great dishonour of the King and Kingdom destroyed the King her Husband Et quanta mala eorum consilio auxilio exercebantur in regno qu â—ntaque mala opera eorum somento velâ—bantur by the secret advice of his friends resolved to separate them from one another to prevent greater mischiefs Nam in tantum invalescebant in terra quod totum regnum in periclitando labi videbatur Deinde Rex tenuit CONCILILM SUUM apud Notyngham in quindena Michaelis cum pene omnibus Magnatibus regni In quo Rex saniori consilio de eorum fraude et malitia saluâ—râ—us edoctus vidensque periculum tam praeteritum quam in posterum â—am in praesenti per dictos Isabellam et le Mortymer evidenter imminens graviter in corde condolens suscepit sicque die Veneris in crastino sancti Lucae Rex cum electa comitiva in obscuro noctis perrâ—xit per quendam viam subterraneam de villa Notynghamiae usque in castellum et venit ad cameram matris suae Isabelâ—ae et invenit ibi prope eam in alia camera Rogerum de Mortymer et Episcopum Lincolniensem Henricum Et statim Rex jussit Rogerum apprehendi et in securam custodiam usque in crastinum poni In crastino fecit apprehendere omnes suos adhaerentes perâ— tam villam dispersos Et statim misit omnes Londonias videlicet le Mortymer Et duos filios ejus scilicet Galfridum Edmundum milises et Dominum Oliverum de Byngam Dominum Simonem de Berforde Et in captione Rogeri Mortymere occisus est Dominus Hugo de Tryplyngton miles et senescallus familiae regis per dictum Rogerum Mortymer in ingressu regis in camera eorum Isabella mater regis ad udicata est perdere omnes terras suas et cum difficultate evasâ—t dampnationem ad mortem eo quod er at mater regis et ob reverentiam regis dilata est sententia Et ordinatum est singulis annis caperet de cista domini regis ad sustentationem suam tria millia mercarum et maneâ—et in uno certo loco ubi rex pro ea disponere vellet Magnates regui imposuerunt contra Rogerum Mortymer Articulos sequentes Primerment que parla on ordenee fuist al parliment de Londrez proscheyne apres la coronnement nostre seignour le roy que quatres Eveskes quatre Contes et vj. Barones dustent estre pres du roy pour la conseyller issint que tote foitz quatre y fuissent Cest assavoir une Eveske une Conte et dieux Barons a meynez que nule grosse bosoigne soit faite sanz lour assent que chescuâ—e respondist dez ces fetz pur son temps la dit Roger nyent eyant regarde al dit assent accrocha a luy real pouare le governement
de la foy le roy en cellez paâ— Pâ—r la ou le roy devoit pluis ost par reson avoyre vengee loure mort de pardonee contre fourme de parlement Ensy le dit Roger compassa devoyre destrut lez noryes le roy et lez secrettez le roy de queuz il se pluis aâ—ya Et susmyt al roy en presence la reyne sa miere et dez eveskes de Nichole et de Salusberye et autres de counsaile le roy qe lez avanditez secretez le roye luy exciterent destre la covygne dez enmys par de lay en destruccion de sa miere et del avant dite Roger La quela chose il affirma tant sour le Roy que le parole le Roye ne poet creu Et cele vendurdi deinz la nute qils estoient prisez a la myt nyt suant donke pur lez caulez susescriptes et molt dez autrez choses que ne sont pas ore a dyre touz si fist le dit roy prendre en la manere par eide et avisement dez priveez et nuriicz come il vous ad souent monstres Tunc propter causas subscriptas et multas alias quae jam non sunt recitandae ad praesens Rex praecepit Comitibus Baronibus et caeteris Magnatibus regui justum judicium ferre super praedicto Rogero Mortymere Qui omnes adinvicem consulentes venerunt dicentes quod omnes et singuli articuli superius de dicto Rogero attestati veri sunt et notorii et omni populo terrae cogniti et praecipuè articulus tangens mortem regis apud Berkeleye unde respiciatum est et adjudicatum quod praedictus Rogerus ut proditor et inimicus regis et regni distrastus sit et suspensus tertio kalend Septembris apud Londonias Cujus corpus duobus diebus et duabus noctibus nudum pendebat super furcas By these Articles it is evident 1. that it was adjudged high Treason in him to murther King Edward the 2. after his resignation of and deposition from the Crown by his own and a Parliaments consent How much more then to destroy murther him when an actual lawfull King when never deposed without and against his Parliaments consents and contrary to their resolutions protestations Covenants Oaths 2ly That to come with armed forces to any Parliament to over-awe force menace terrifie thereby and drive away any of the Members thereof from it and compel the rest to comply with or not to oppose what this armed party propounds or to put any Nobleman to death is a high and treasonable offence That Lords and other Members may justly depart from Parliament without doing any thing when there is any such force upon them Let Lilburn and others guilty of such Treasons sadly consider them and take timely warning by this president In the Parliament of 28 E. 3. n. 7. to 14. Roger Mortimer of Wigorn Cosin and heir to this executed Roger required by his Petition that the Act of his Attainder in the Parliament of 4 E. 3. n. 1. might be examined and for manifest Errors therein reversed whereupon the record was brought into Parliament and all the Articles Proceedings and Circumstances of his Judgement at large recited Which being read it was alleged that the judgment was defective erronious in all points not for the substance of his Charge for that the said Earl was put to death and disinherited by the Lords as Judges oâ— Parliament by the Kings command Sans nulle accusement et sans estre mesne au juggement au en respons without any accusation and without being brought to Judgement or to answer for which causes it was prayed That the said Statute and Judgement might be reversed and annulled For which causes Nostre Seignour le Roy et les dits Prelates Prince Duks Countz et Barons per accord des Chivalers des Counts et des ditz Comunes reâ—ellent et anientissent et pur erroigne et irrâ—t ajudgent les Records et Iuggements suis dits This Judgement whose reversal is also recited in Claus 28 E. 3. m. 7. 29 E. 3. rot Parl. n. 29. though given in Parliament being erronious and void in Law because given without any lawful accusation trial answer and arraignment of the party against the Great Charter and Law of the Laud which ought to be observed not violated by the Lords or Parliament it self in their Judicial proceedings In this Parliament of 28 E. 3. â— 13. Richard Earl of Arundel by Petition shewed that in the Parliament of 1 E. 3. touching the attaindâ— of Edmund Earl oâ— Arundel his Father a Statute was made without forfeiture albeit he was put to death and prayed that he may now be taken as heir of his Father and that Act reversed as erronious which being read and duly considered 〈◊〉 suâ—ceâ— oue bon deliberation et auys a graunt 〈◊〉 nostre Seigniour le Roy Prelates Prince Duk◠〈◊〉 Barons 〈…〉 il apiert clerement que le dit Edmund fuist non 〈…〉 a la mert et que parols recites eu le dit Statute touchant la mort et destruction de dit Edmund sont voydes erroignes et nulles Pur quoi nostre Seignior le Roy et les ditz Prelates Prince Dukes Countz eâ— Barons per accord des Chivalars des Counteâ— et des dites Commune ajuggent et agardent que la recitation et quelque est en le dit Statute touchant la mort et destruction du dit Edmund sont Voides erroignes et nulles c. et soint anientez et pur nul toutz a toutz jours The said Edmund being put to death without due proces or trial by his PEERS according to the Law of the Land and the Great Charter Therfore the Act confirming this erronious attainder was thus reversed repealed and nulled In these two last Records it is observable First that the King and Lords debated adjudged these Judgements and attainders to be erronious but because they were confirmed by Act of Parliament the assent of the Knights of Shires and Commons was required and had to their reversal as well as to the nulling and repealing of other publike Acts. In the Parliament of 50 E. 3. rot Parl. n. 21. to 31. William Lâ—d Latymer was accused by the Commons for divers oppressions by him done to the Kings people both during his command in Britain and also in the time that he was Chamberlain to the King and of his Council in levying divers sums of money for victuate and ransoms amounting to many thousand pounds for which he never accounted For the loss of sundry Foâ—s and Towns in Normandy and Brittain to the Enemy of which he had the command and partaking with Richard Lions in those illegal Impositions and misdemeanours whereof he was then impeached by them Whereunto the Lord Latymer saving the tryal of his Peers offered to answer any particular
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
the said Thomas and Roger as aforesaid but that the judgement and declaration had and given against the said John late Earl of Sarum were a good just and legal Declaration and Iudgement Per quod consideratum suit in praesenti Parliamento per praedictos Dominos tunc ibidem existentes de assensu diâ— Domini nostri Regis quod praefatus nunc Comes Sarum nihil capiat per petitionem aut prosecutionem suam praedictam Et ulterius tam Domini spirituales quam temporales supradicti judicium et Declarationem pradicta versus dictum Joannem quondam Comitem Sarum ut praemittitur habita sive reddita de assensu ipsius Domini Regis affirmarunt fore et esse bona justa et legalia et ea pro hujusmodi ex abundanti decreverunt et adjudicarunt tuuc ibidem This is all that is mentioned in that Parliament Roll concerning this businesse Sir Edw. Cook who hath an excellent faculty above all others I have yet met with in mistaking mis-reciting and perversing Records and Law-books too oft times which he had no leisure to peruse which I desire all Lawyers and others to take notice of who deem all he writes to be Oracle lest they be seduced by him in his 4 Institutes p. 23. affirms with confidence That in this Rot. Parl. 2. H. 5. n. 13. Error was assigned to reverse this judgement that the Lords gave judgement without Petition or assent of the COMMONS citing it to prove that the COMMONS have a power of judicature together with the LORDS But under his favour I can assure ye Reader 1. That there is no such error at all either mentioned or intended in this Record nor any one syllable tending to that purpose 2ly The Petition mentions no error at all in this judgement but only remembers two presidents of judgement formerly reversed the first in the case of Thomas Earl of Lancaster in 15 E. 2. which judgement was given against him at Pomfret Castle which was afterwards reversed as Sir Edward Cooke himself informs us in his 3 Institutes c. 7. p. 52 53. in Pas 39 E. 3. Coram rege rot 92. for this only reason Qua contra Chartam de libertatibus cum dictus Thomas fuit unus PARIVM MAGNATUM Regni non imprisonetur c. nec dictus Rex super eum ibit nec super eum mittet nisi per legale judicium PARIUM SUORVM c. tamen tempore pacis absque juramento seu responsione seu legale judicio PARIUM SUORUM c. adjudicatus est morti The other was the judgement given against Roger Mortymer in the Parliament of 4 E. 3. reversed for the like reason in the Parliament of 28 E. 3. n. 10 11 12. forecited being condemned and executed by the Lords without any arraignment hearing trial or answer against the Great Charter Now these two Presidents are pointblank against this pretended error alleged by Sir Edward Cook That the Lords gave judgement without the assent of the Commons and it had been very improper for them to allege the reversal of them for want of a legal tryal by their Peers to prove that the Commons who are no Peers should have assented to the Earl of Salisburies judgement and because they did it not it was Error and reversible These presidents therefore might have minded him of his gross mistake 3ly The King and Lords upon consideration declared and adjudged these two cases and judgements upon perusal of them not to be like the case of the Earl of Salisbury who being slain in rebellion and actual war against the king could not be personally arraigned and condemned as the other two might and ought to have been and therefore the judgement given against him in this case by the King and Lords in Parliament who were his Peers was a good just and legal judgement and no ways against the great Charter 4ly The Commons themselves in the Parliament o 13 H. 4. rot Parl. n. 19. acknowledged this judgement to be good without their assents by their Petition to the Kâ—ng that John Lumly whose Father was attainted of Treason by it together with the Earl of Salisbury might be restored to blood and lands by Act of Parliament and the Kings grace notwithstanding this judgement of Treason against them Which the King by assent of the Lords Spiritual and Temporal consented unto 5 ly In the Parliament of 3 E. 4. n. 31 32. this judgement was made void and repealed out of the Kings Grace by a special act of Parliament and the heir restored but the judgement not reversed for any Error 6ly Had there been any such Error assigned as is alleged yet the King and Lords upon solemn debate and deliberation over-ruled and adjudged it to be no Error at all as he pretends it and thereupon abated the Petition and adjudged the Judgement and Declaration given by the Lords alone with the Kings assent in 2 H. 4. without the Commons Petition or assent to be GOOD JUST AND LEGAL reconfirming it a new on Record as such Therfore it was a gross oversight in him to assign and print it as an Error and a President of the Commons House or both Houses power of judicatures together when as it is a most undeniable double Parliamentary resolution of the Kings and Lords sole right of judicature of their declaring and judging in Parliament what is Treason and what not within the Statute of 25 E. 1. without the Commons assent or privity and an unanswerable refutation of his sole opinion to the contrary in his 3 Institutes c. 2. p. 22. which he opposeth against not only these two Parliamentary resolutions but likewise against 5 H. 4. n. 11 12.15 and 17 R. 2. rot Parl. n. 20. there quoted by him By this you may judge how little credit is to be given to Sir Edwards quotations and authority in matters concerning Parliamentary Judgements and Records In the Parliament of 28 H. 6. rot Parl. n. 14. to 53. The Commons generally accusing William de la Pool Duke of Suffolk to the King and Lords he thereupon required of the king that he might be specially accused and heard to answer to that which many men reported of him to be an untrue man making therewith a protestation of his manifold good services in the wars and as a Privy Counsellor for sundry years and so asking God mercy as he had been true to the King and his Realm required his purgation The 26 of January the Commons required that for this his Confession he might be committed to ward The Lords and Judges upon consultation thought there was no good cause for that unlesse some special matter were objected against him The 28 day of January the Speaker declared that the said Duke as it was said had sold the Realm to the French who had prepared to come hither and for his own defence had furnished Wallingford Castle with all warlike necessaries upon whose request the said Duke was then
committed to the Tower of London The 7 day of February the Commons by William Trussel their Speaker brought up and presented to the King and Lords in the Lords House a Bill against the said Duke containing an impeachment of several High Treasons committed by him against the King requiring of the Lords all their Articles therein to be enacted with prosecution therein The 9. of March they exhibited new articles of complaint against the Duke comprising sundry misdemeanors against the king and other persons which they require might be enrolled and that the Duke might answer to them The 9. of March the Duke was brought by the kings writ from the Tower into the Parliament Chamber before the King and Lords where the Articles were rehearsed to him who desired Copies of them which was granted And he for more ready answer was committed to certain Esquires to be kept in the Tower within the kings palace The 14 of March the Duke appeared before the K. Lords where on his knees he denied as untrue the 8 Articles of Treason and the same offered to prove as the King shall appoint The Chief Justice thereupon by the kings command asked this Question of the Lords what advise they would give the King what is to do further in this matter which advise was deferred till Monday then next following whereon nothing was done in that matter On Tuesday the 17 of March the king sent for all the Lords Spiritual and Temporal then being in Town being 24 in all into his Inner Chamber within his Palace of Westminster where when they were all assembled he then sent for the Duke thither who coming into the Kings presence kneeled down and continued kneeling till the Chancellor of England had delivered the kings command to him and demanded of him what he said to the Commons Articles not having put himself upon his Peerage Whereupon the Duke denied all the Articles touching the kings Person and state of the Realm as false and scandalous And so not departing from his said Answers submitted himself to the kings Rule and Governance without putting himself upon his Peerage Where thus the Chancellor told him That as touching the great and horrible crimes contained in the first Bill the king holdeth him neither declared nor charged And as touching the second Bill containing misprisions which are not criminal the king by force of his submission by his own advice and not reporting him to the advice of the Lords nor by way of judgement for he is not in place of judgement putteth you to his Rule and Governance that before the first of May next coming he should absent himself out of the kingdom of England and all other his Dominions in France or elsewhere and that he nor no man for him should shew or wait any malice nor hate to any person of what degree soever of the Commons in the Parliament in no manner of wise for any thing done to him in this Parliament or elsewhere And forthwith Viscount Beaumont in behalf of the said LORDS both spiritual and Temporal and by their advice assent and desire said and declared to the Kings Highness That this that so was decreed and done by his Excellency concerning the person of the said Duke proceeded not by their advice and Counsels but was done by the Kings own demeanoir and rule Wherefore they besought the King that this their saying might be enacted in the Parliament Roll for their more declaration hereafter with this protestation that it should not be nor turn in prejudice nor derogation of them their heirs ne of their successors in time coming but that they may have and enjoy their liberty as they or any of their Ancestors and Predecessors had and enjoyed before this time This is the sum of this large Record which makes nothing to the purpose for which Sir Edward Cook cites it in his 4 Institutes p. 25. That it is ERROR when both Houses joyn not in the Judgement For first here is nothing but an impeachment only by the Commons of a Peer who ought to be tryed judged only by his Peers not by Commoners Secondly there was no judgement given in Parliament in this case but only a private Award made by the King out of the Parliament House in his own Chamber in presence of the Lords Thirdly the Lords entred a special protestation against it as not made by their advice or consent Fourthly they enter a special claim in the Parliament Roll for the preservation of their Right and Freedom of Peerage for hereafter both of being tried and judged only by their Peers in Parliament and so an express resolution that the Peers in Parliament are and ought to be Judges especially of Peers not the Commons These Records of these cited at large lest Sir Edward Cooks brief quotation and mis-recital of them should deceive the credulous or ignorant Readers In the Parliament of 31 H. 6. rot Parl. n. 28. Thomas Earl of Devonshire was accused of Treason tried for and acquitted thereof by his Peers before Humfrey Duke of Buckingham Steward of England for the time being And for that the Duke of York thought the loyalty of the said Earl to be touched thereupon the said Earl protesting his Loyalty referred himself to further Trial as a Knight should doe upon which declaration THE LORDS in Parliament acquitted him as a loyal Subject Edward Duke of York with the Earls of March Warwick Salisbury Rutland John Lord Clinton and others were impeached and attainted by Judgement of the Lords in Parliament of High Treason for raising forces and levying war against King Henry the 6. and afterwards attainted by Bill in the Parliament of 38 H. 6. n. 7. to 26. In the Paâ—liamenr of 1 E. 4. n. 17. to 71. The Duke of Exeter Viscount Beamont the Earls of Pembroke Wilts and Devonshire the Lords Nevil Roos Gray Dacre Hungerford and others were first attainted and condemned of High Treason by THE LORDS and after by Bill for levying warr against King Edward the fourth The Duke of Somerset and others in the Parliament of 4 E. 4. n. 28. to 39. and John Vere Earl of Oxford with others in the Parliament of 14 E. 4. n. 34. to 41. were in the same manner for the same offence attainted of High Treason and their Lands forfeited To pretermit all other Attainders of this Nature in cases of High Treason in the reigns of Henry the 8. Edward the 6. Queen Mary Queen Elizabeth and King James both in our English and Irish Parliaments formerly touched p. 196 197 198 199. In the Parliaments of 18 21 Jacobi Sir Francis Bacon Viscount St. Alban Lord Chancellor of England and the Earl of Middlesex Lord Treasurer of England were impeached accused convicted of Bribery Corruption and other misdemeanors removed from their places fined Middlesex 50000 l. imprisoned made uncapable of any Office and thus censured by Iudgement of the Lords house as the Journals of those Parliaments
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
fined a 1000 l. to Edmond Earl of Cornwal and 2000 marks to the Abbot of Westminster and committed to the Tower of London by JUDGEMENT of the King Earls Barons and Iustices in full Parliament for citing and attaching the said Earl of Cornwal in Westminster hall to appear before the Archbishop sitting the Parliament whereof he was a Peer against his Privilege and the privilege of Sanctuary granted to the Abbot of Westminst and remained prisoners there till they put in Sureties and paid the 1000 l. fine to the Earl notwithstanding their plea of ignorance of these their Privileges In the Parliament of 4 E. 3. n. 2 3 4 5 6. Sir Simon Bereford knight John Mautravers Boso de Bayons John Deverall Thomas de Gournay and William of Ocle confederates with Roger Mortimer Earl of March in all his Treasons and misdoings for which he was then impeached and condemned and guilty of the murders of King Edward the 2. after his deposition in Berkley Castle and of the Earl of Kent his Brother were attainted and condemned of High Treason by the Lords Barons Péers in Parliament as Iudges of Parliament though they were Commoners and not their Péers whom they were not at all obliged to judge as Péers adjudging them by the Kings assent as Traytors and Enemies of the King and his Realm to be drawn and hanged Whereupon Sir Simon being in Custody was executed by the Marshal and Proclamation made by the Kings writs by the Lords order to apprehend the others with promise of great rewards to those who should apprehend them that they might be executed and if they could not take them alive to bring in their heads for which thty should receive the reward of 500 l. from the King It is true indeed that after these Judgements given the Lords the same Parliament entred this special Protestation in the Parliament Roll n. 6. against being forced to give Judgement in such cases against those who were not their Peers which Sir Edward Cook stiles an Act of Parliament though it be no such thing but a voluntary Protestation of the Lords with the Kings assent It is assented and agreed by our Lord the King and all the Great men in full Parliament that albeit the said Péers as Iudges of Parliament took upon them in the presence of our Lord the King to make and render the said Judgements by assent of the King upon some of those who were not at all their Peers and that by reason of the murder of our Leige Lord and destruction of him who was so near of the bloud royal and son of a King that thereby the PEERS which now are o◠the Péers which shall be in time to come shall not be bound or charged to render Iudgements upon others who are not their Péers nor yet to doe it but upon the Péers of the Land but that they shall from henceforth be for ever acquitted thereof And that the said Iudgements now rendered shall not be drawn into example nor consequence for time to come whereby the said Peers may be charged hereafter to adjudge others than their Peers against the Law of the Land if such another case should happen which God defend From this Protestation of the Lords which Lilburn principally insists on he and some others conclude that the Peers in Parliament have no right at all to imprison fine judge or pass sentence of death against any Commoner for any offence no not for breach of their own Privileges but only the Commons To which Objection I answer First that this is no Act of Parliam as Sir E. Cook mistakes but a bare Protestation of the Lords alone assented to by the King without the Commons assent which no wayes impeacheth the Lords right of judicature Secondly that neither the House of Commons nor the Commoners then attainted of Treason and adjudged to death by the Lords ever demurred or excepted against their Jurisdiction as Lilburn and Overton doe but acknowledged and submitted to it Thirdly That in this very Protestation the Lords profess and justifie their right of BEING JVDGES in Parliament without admitting or acknowledging any Joynt or sole right of Judicature with them in the Commons Fourthly That this Protestation was meerly voluntary not in derogation but preservation of their own Honour Right Peerage and the Parliaments privileges too The substance of it is no more than this That the Lords should not be constrained against their wills by the Kings command and in his presence to give judgement of death in ordinary cases of Treason or Felony in the high Court of Parliament or elsewhere out of it against such who were no Peers who in such cases by the Law might and ought to be tried in the Kings Courts at Westminster or before the Iustices of Oyer and Terminer by a Iury of their equals but only in cases which could not well be tried elsewhere and were proper for their Judgement in Parliament they fearing that by this president in Parliament they might be sworn and impannelled on Juries in cases of Treason committed by Commoners against the Great Charter c. 29. and the Privilege of their Peerage which exempted them being sworn or put into Juries as Fitz. Nat. brev f. 165.48 E. 3. f. 30. Exemption 6.48 Ass 6.27 H. 8. f. 22. b. This is the whole summ and sence of their protestation To argue therefore from hence That they cannot pass sentence or judgement against any Commoners in any case proper for their Judicature in Parliament because they protested only against being COMPELLED to give Iudgement against such as were no Peers in cases triable elsewhere and not proper for their tribunal as the Objectors hence conclude is quite to mistake their meaning end to speak rather non-sence than reason or Law Fifthly This Protestation was made only against the Lords giving sentence in Felony and Treason and that in the Kings own presence in Parliam who usually pronounced the judgment himself or by some other with the Lords assent did not charge the Lords to pronounce it as here not against sentencing fining imprisoning any Commoner for rayling and libelling against their Persons Jurisdiction and procedings or refusing to answer and contemning their Authority to their faces at the barr or appealing from their Judicature in case of breach of Privilege of which themselves alone and no others are or can be Judges the cases of Lilburn and Overton whose commitments are warranted by hundreds of Presidents in this and former Parliaments Therefore for them to apply this Protestation to their cases with which it hath no Analogy is a manifestation of their injudiciousness and folly rather than a justification of their Libellous Invectives against the Lords injustice Sixthly The Lords gave judgement against all these persons by the Kings command in their absence without any Indictment hearing Trial witnesses heard or examined against them face to face or due process or Law against the Great Charter
and Law of the Land And this was the main reason of this their Protestation as the close of it shews to prevent such dangerous presidents for the future Upon which ground the Judgements they then gave against Roger Mortymer John Mautravers were reversed in the Parliament of 21 E. 3. n. 65.28 E. 3. n. 8. to 16. Lastly This Protestation did not foreclose the Lords in this or future Parliaments to give Judgement against Commoners in other cases of Felony and Treason even without the Commons which I shall prove by some other instances In the Parliament of 4 Ed. 3. n. 16. Sir Thomas Berkeley Knight was arraigned and tried by a Jury for Treason as being guilty of the death of King Edward the 2. committed to his custody who pleaded not guilty and was tried in full Parliament before the King by a Jury and by them acquitted Which case being rare and memorable I shall here insert the whole Record Thomas de Berkele Miles venit coram Domino Rege in pleno Parliamento suo praedicto et allocutus hoc Quod eum Dominus Edwardus nuper Rex Angliae pater Domini Regis nunc in custodia ipsius Thomae et cujusdam Johanuis Mautravors nuper extitit collatus ad salvo custodiendum in castro ipsius Thomae apud Berkele in Com. Gloucestriae et in eodem castro in custodia ipsorum Thomae Johannis murdratus extitit et interfectus qualiter se velit de morte ipsius Regis acquietare Dicit quod nunquam fuit consentiens auxilians seu procurans ad mortem suam nec unquam scivit de morte sua usquam in praesenti Parliamento isto et de hoc paratus est acquietare se prout CURIA REGIS consideraverit Et super hoc quaefitus est ab eo ex quo ipse est Dominus castri praedicti et idem Dominus Rex in custodia ipsorum Thomae Johannis extitit liberatus ad salvo custodiend ipsi custodiam ipsius Regis recepeâ—unt et acceptarunt quali er se excusare possit quin de morte ipsius Regis respondere debeat Et praedictus Thomas dicit quod verum est quod ipse est Dominus Castri praedicti et quod ipse simul cum Johanne Mautravers custodiam ipsius Regis recepit ad salvo custodiend ut praedictum est Sed dicit quod eo tempore quo dicitur ipsum Dominum Regem esse murdratum et interfectum fuit ipse taliter tanta infirmitate apud Bradeley extra Castrum praedictum detentus quod ei currebat memoriae Et super hoc dictum est ei quod ex quo cognovit quod ipse simul cum dicto Johanne custodiam ipsius Domini Regis obtinuit ut praedictum est et ipse custodes et ministros sub se posuit ad custodiam de eo faciendam si per aliquam infirmitatem excusari posset quin respondere debuit in hac parte Et praedictus Thomas dicit quod ipse posuit sub se tales custodes et ministros in castro praedicto pro custodia facienda a quibus ipse se confidebat ut de seipso qui custodiam ipsius Regis simul cum praedicto Johanne Mautravers inde habuerunt unde dicit quod ipse de morte ipsius Domini Regis auxilio assensu seu procuratione mortis suae in nullo est inde culpabilis Et de hoc de bono et malo ponit se suâ—er patriam Ideo venerint inde Juratores coram Domino Rege in Parliamento suo apud Westm in Octabis Sancti Hilarii proxime futuri c. Ad quam diem venit praedictus Thomas coram Domino Rege in pleno Parliamento ac similiter Juratores scil Johannes Darci Iohannes de Wisham Willielmus Trussell Rogerus de Swyneuerton Constantius de Morâ—imer Iohannes de sancto Phileberto Richardus de Rivers Petrus Hussey Iohannis de Dynton Richardus de la Rivere Robertus Dabenhate Richardus de Corveyes omnes milites Qui dicunt super Sacramentum suum quod praedictus Thomas de Berkelie in nullo est culpabilis praedicti Domini Edwardi Regis Patris Domini Regis nunc nec de assensu auxilio seu procuratione mortis ejusdem Et dicunt quod tempore mortis ejusdem Domini Edwardi Regis patris Domini Regis nunc fuit ipse tali infirmitate gravatus apud Bradely extra castrum suum praedictum quod de viâ—a ejus desperabatur Ideo idem Thomas inde quietus Juratores quaesiti si idem Thomas unquam substraxit se occasione praedicta dicunt quod non Et quia idem Thomas posuit custodes et ministros sub se scil Thomam de Gourney et Willielmum de Ocle ad custodiam de ipso Domino Rege faciendam per quod idem Dominus Rex extitit murdratus et interfectus datus est ei dies coram Domino Rege nunc in proximo Parliamento suo de audiendo JUDICIO SUO c. Et praedictus Thomas de Berkelei interim committitur Radulpho de Nevill Mareschallo hospitii Domini Regis c. It is observable that though Edward the 2. was murdered after he was deposed by this Parliament yet he is still â—â—lled a King in this Indictment and record and his murder adjudged Treason in those who did it After his acquittal he put in Mainpernors to appear in the next Parliament Where appearing he and his Mainpernors were discharged but yet himself ordered to appear again the ensuing Parliament as appears by the Parliament Roll of 5 E. 3. n. 16. William Thorp Chief Justice of the Kings Bench and one of the Justices of Assize in the County of Lincoln in the 23 year of Ed. the 3. against his Oath took 10 l. of Richard Saltley 20 l. of Hildebrand of Beresward 40 l. of Gilbert Holliland 40 l. and 10 l. of Ro. Daldorby to stay an Exigent upon an Indictment of diverse felonies that should have issued against them Whereupon he was indicted before the Earls of Arundel Warwick and Huntingdon the Lord Gray and Lord Burghers Anno 24 E. 3. to whom the King by Commission referred the examination of the businesse before whom he could not deny but confessed the Bribery Ideo consideratum est per dictos Justiciarios assignatos ad judicandum secundum voluntatem Regis et secundum regale posse suum quod quia praedictus Willielmus Thorpâ— qui sacramentum Domini Regis quod erga populum suum habuit custodiendum fregit malitiose false et rebelliter in quantum in ipso fuit ex causis supradictis ipsum Willielmum expresse cognitis ideo SUSPENDATUR et quod omnia terra et tenementa bona et catalla sua remaneant forisfacta The King by a writ under the privy Seal stayed his execution and sent him Prisoner to the Tower In the Parliament of 25 Ed. 3. nu 10. command was given that the record of this Judgement
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
singulis secundum Iuramenta Regis et Procerum debebatur expectare 2. The reason why he thus sled was to avoid the Justice of THE KING LORDS as they in plain terms inform the Pope without any mention of the Commons 3ly This expulsion is said to be in 44 H. 3. or rather in 41. as Mat. Paris and others inform us An. 1458. And that is at least 5. or 8. years before any Commons Knights and Burgesses were summoned to our Parliaments by Sir Robert Cottons Mr. Seldens and others confessions and that by the Writ in 49 H. 3. Rot. Claus m. 10. dorso Therefore if the Commons had any vote in his banishment it was 5. or 8. years before they were admitted into our Parliaments and so a Banishment not in but out of Parliament 4ly This Letter to Pope Alexander begins thus Sanctissimo Patri in Christo Alexandro c. COMMUNITAS COMITUM PROCERUM MAGNATUM ALIORUMQUE REGNI ANGLIAE and it is subscribed joyntly by 6. Earls and 5. Noblemen whereof Petrus de Montfort is the last VICE TOTIUS COMMUNITATIS to wit Communitas Comitum Procerum Magnatum aliorumque Regni Angliae who writ the Letter mentioned in the beginning thereof not of the Commons House contradistinct from the Earls Nobles Great-men and Barons of the Realm praesentibus literis sigilla nostra apposuimus in testimonium praedictorum not by the 10 first Earls and Nobles in behalf of themselves the Earls Lords and great men of the Realm and by Peter de Montford as Speaker or Proctor of the Commons who as Sir Robert Cotton himself acknowledgeth had no Speaker aâ— all in 6 E. 3. An. 1332. being at least 74. years after this Letter nor yet till 51 E. 3. rot Parl. n. 87. for ought appears by History or Record being 119. years after this Letter Wherefore this president consisting of so many mistakes as I have more largely proved in my Preface to Sir Robert Cottons Exact Abridgement of the Records in the Tower makes nothing at all for the Commons joynt Right of Judicature with the King and Lord The rather because the Communitas in the objected clause of the Letter is not meant of the Commons in Parliament but the Communitas or Universitas Regni popularis etsi non Nobiles as Mat. Paris stiles them or popular rabble of Commons out of Parliament The 2. president is that of Sir Nicholas Segrave 33 E. 1. rot 33. Cooks 3. Institutes p. 7. 4 Instit p. 23. in the margin Who being charged in Parliament in presence of the King Earls Barons and OTHERS OF THE KINGS COUNCEL not the Commons or Burgesses but the Iudges and Kings learned Councel at Law or his Privy Council who were assistants to the Lords as I conceive which Sir Edward Cook mistaking would have to express the Commons in Parliament then and there present that the King in the wars of Scotland being among his enemies Nicholas Seagrave his leigeman who held of the King by Homage and fealty and served him for his aid in that warr did maliciously move discord and contention without cause with John de Crombewell charging him with many enormous crimes and offered to prove it upon his body To whom the said John answered that he would answer him in the Kings Court c. and thereupon gave him his faith After which Nicholas withdrew himself from the Kings hast and aid leaving the King in danger of his enemies and adjourned the said John to defend himself in the Court of the King of France and prefixed him a certain day and so as much as in him was subjected and submitted the Dominion of the King and kingdom to the subjection of the King of France and to effect this he took his journey towards Dover to passe over into France All which he confessed and submitted himself therein de alto et Basso to the Kings pleasure And hereupon the King willing HABERE AVISAMENTUM to have the advise of the EALS BARONS LORDS magnatum and OTHERS OF HIS COUNCEL enjoyned them upon the Homage fealty and allegiance wherewith they were obliged to him quod ipsi sideliter CONSULERENT that they should faithfully ADVISE HIM what punishment should be inflicted for such a fact thus confessed Qui omnes habito super hoc diligenti tractatu et avisamento c. Who all having had thereupon diâ—igent debate and advise having considered and understood all things contained in the said fact DICUNT not by way of Judgement judicially pronounced but of answer to the Kings question propounded and as their opinion of the cause Said that this fact deserved losse of life members c. So as this offence notes Sir Edward Cooke was then adjudged in Parliament to be High Treason But under his favour First here was no judgement at all given against the party himself but only an opinion and advice touching this case not pending judicially in Parliament by way of Inditement or impeachment but voluntarily proposed by the King in answer to the kings question and so it can be no proof of any actual proper judicature vested in both Houses Secondly For ought appears this question was only propounded to the Earls Lords Barons and the Kings Council that assisted them and so only to the House of Peers not to the Commons and answered resolved only by them aliorum de Concilio suo not expressing nor including the Commons as I apprehend being never so intitled in any Parliament Records for ought I can find That these alii de Concilio were not the Commons as Sir Edward Cook insinuates but the Kings Justices and Judges who attended them is most clear by this passage of Matthew Westminster who lived and writ the story of it at that time in these words Sub illo quoque tempore Nicholaus de Segrave unus de praestantioribus de regno pro tali causa arrestatus fuerat coram rege Alius quidam Johannis de Cromâ—ewell ipsum de proditione arguerat Ille autem in defensionem obtulit se duello Rex propter bella sua noluit ista pati ille vero non licentiatuâ— et contra prohibitionem Regis mare transivit persequens accusatorem ipso Rege adhuc inter hostiles acies constituto Ideirco reputaâ— eum Rex in judicio vitae suae contemptorem nec per ipsum stare quin Rex ab hostibus interiret Et ille in gratiam Regis se submisit Cui Rex justitiam fieri volo in judicio Proinde JUSTITIARII mark it not the Commons TRIDUO SUPER HOC CONSULTANTES responderunt regi hujusmodi hominem reum esse mortis et omnia bona sua mobilia et immobilia regii juris esse Veruntamen propter generositatem sanguinis addiderunt non hunc in regis contemptum Angliam egressum fuisse sed propter iram se de suo criminatore vindicandi Regis autem esse posse facere misericordiam cum eodem Quibus Rex O
diu consultati sed inconsulti Equidem meum est posse et velle conferre gratiam cui voluero miserebor Nec propter vos amplius quam pro cane Quis in gratiam meam se submisit repulsam passus est Veruntamen vestrum judicium in scriptura redigatur et pro lege amodo teneatur Proinde dictus miles ad carcerem ducebatur ne impunitas armareâ— audaciam et rigor caeteris timorem incuteret contemnendi Et post paucos dies elaborantibus multis nobilioâ—ibus regni et ostendentibus se 30 suis paribus cinctis gladiis corpus pro corpore et bona pro bonis una in solidum quoquo die Rex eum vocaverit nec adesset liberatus est et per regem cunctis facultatibus suis restitutus So this Historian which compared with the Record infallibly proves that this resolution was given by the Earls Barons Lords and Judges advice who were the only aliorum de Concilio as assistants to the Lords then in all matters of Law as now they are not the Commons of which there is no mention in the records or this Historian that they were parties to it And this is likewise evident by the case of Margery the Wife of Thomas Weyland an abjured Judge in the Parliament of 19 E. 1. Cooks 1. Institutes f. 133. n. Where the Barons of the Exchequer and Justices of the Kings Courts were called to advise and assist the King and his Council of Lords in Parliament in a difficulty of Law therein to be resolved by their advice And therfore it follows that the LORDS ONLY IN THAT AGE were the Judges even of Commoners cases Thirdly Admit the Commons were included yet it proves only a right of advising and delivering their opinions with the Lords when required by the King not of judging or pronouncing sentence Fourthly Sir Edward Cook citing this president to prove That both Houses together have power of judicature must grant that even in 33 E. 1. there were two distinct Houses of Parliament who upon special occasions as now at conferences c. met and advised together and therefore the division of the Houses was before Edward the third his reign and very probable as antient as the summoning of Knights Citizens and Burgesses to the Parliament which some make as antient as King Henry the first or King Henry the 2. others not before King Henry the third in the 49 year his reign Father to King Edward the first So as this president makes quite against the Levellers and Lilburnians designs and opinions The 3 and 4. Presidents are those of Hugh Audley his Wife Claus 12 E. 2. m. 5. of Gaverston and the two Spencers Exiles 15 E. 2. forecited wherein the Commons gave their assents to the attainders and exiles of Gaverston and the Spencers and to the reversal of them But this I have already proved to be only by way of Bills not judicature by the legislative not judicial power of Parliament and that they were judicially condemned only by the Lords therefore these are nothing to the purpose and against the Objectors The 5. and 6. are the depositions of King Ed. the 2. and Richard the 2. for their mis-government wherin the Commons had a joynt vote and concurrence with the Lords which I shall hereafter answer in the supplement p. 429. to 460. The seventh President is that of Eliz. Burgh Widow in the Parliament of 1 E. 3. rot Parl. n. 11. who complained by Petition to the King that in the reign of King Edward the 2. she was by his Writ commanded to come unto him to Yorke and there by Hugh Spencer the younger and Robert Baldock and William Cliff his instruments inforced by duresse to enter into an Obligation to this effect that if she received any who were contrary to the King or maried any man without the Kings consent or if she gave any lands or tenements which she held in fee or in dower to any man living without the Kings license that for any of these she should forfeit all her Lands Tenements Goods and Chattels to the King as appeared by the transcript of the Bond annexed to her Bill whereupon she prayed Grace and remedy against this duresse and acquittance of our Lord the King from this Obligation Hereupon a Writ was sent to the Clerk of the Privy Seal in whose custody the Obligation was to bring it without delay Coram Concilio nostro in Parliamento ad faciendum inde ulteriut quod per idem Concilium nostrum contige it ordinari which being brought and delivered accordingly the 5 of March and deliberately read in full Parliament and agreeing with the transcript annexed to her Petition in all things Pur ceo que avys est as Archievesques Evesques Counts BARONS auires Grandes et a TOVTELA COMMONALTIE de la terre que lo dit escrit est fait contre ley de la terre enconter tout manere de reason si fuist le dit escrit PER AGARD DEL PARLIAMENT dampne illeoques livera ala dit Elizabeth I answer 1. That this judgement was given only in a civil case touching an Obligation made by duress not in a criminal 2ly That this Petition was directed only to the King and his Council not to the Commons in Parliament and the businesse heard before them 3ly That this being a Common case there being then many Petitions and complaints that Parliament of bonds of this nature the Commons joyning with the King and Lords in this judgement of Parliament in her case was only by way of Bill not in an ordinary way of judgement they exhibiting passing a Bill for that purpose as well as a Petition as is clear by the words of the Roll and by the printed Statute of 1 E. 3. c. 3. That fines sales and gifts of land and recognizances of debt made by force and duress to this Sir Hugh Spencer Robert Baldocke c. or to any of them be defeated And Parl. 2. ch 15. Whereas many of the Realm in the time of the Kings Father that now is by means of his false and evil Counsellors have been excited by divers to bind themselves to come to the K. with force and arms whensoever they should be sent for upon pain of life and limb and to forfeit all that ever they might forfeit by vertue of which writings divers of his land have been often destroyed The King considering that such writings were made to the Kings dishonour sithence that every man is bound to doe to the King as to his Liege Lord all that pertaineth to him without any manner of writing will that from henceforth no such writing be made And that such as be made by the sight of the Chancellor and Treasurer shall be shewed to the King and the K. shall cause all such as be made against right reason to be cancelled So that this main president meerly falls to the ground being
E. 2. dors 17. 17 E. 3. n. 24.21 E. 3. n. 60.40 E. 3. n. 14 15.14 E. 3. n. 30 31.1 R. 2. n. 95.1 E. 3. f. 6 7.39 E. 3.21 a. 40 E. 3.34 b. Cook 8 Rep. f. 158.3 Instit p. 6 7.4 Instit p. 67 c. 2 Instit p. 408. West 2. c 24. and Bracton l. 2. c. 16 l. 3. c. 9. Fletae l. 2. c. 6. resolving that all difficult causes are to be declared to and determined in and by Parliaments This case being examined and debated by and between the Lords and Commons was afterwards there declared bâ—fore the King and determined and agreed That this fact and murder is Treason and a crime against the Kings Majesty in which case no privilege of Clergy ought to be allowed to any man Whereupon 7 R. 2. rot 8. Kirby and Algar were attainted of High Treason in the Kings Bench and executed as Traitors Walsingham writes this Parliament was held at Northampton against the consent of most of the Realm but especially against the will of the Londoners that so revenge might be taken upon Kirkeby for this murder they fearing that if the Parliament were held at London the Londoners would not suffer him to be executed without some danger to those who condemned him whereupon he was condemned drawn and executed at Northampton To this I answer first That Kirby and Algar were not impeached arraigned tried or condemned in Parliament for this Treason but in the Kings Bench for if they had the Lords only had judged and given sentence against rhem as in all the premised cases 2ly Their case being new was thought fit to be propounded to the Commons by the Kings direction as well as to the Lords who upon debate agreed it to be Treason 3ly When it had been debated it was declared and finally resolved and agreed before the King in full Parliament and that by Bill and the Legislative not Judicial power as Mr. Sâ— John informs us Therefore it makes nothing for the Commons right and power of Judicature which after all these presidents all the Commons in the Parliament of 1 H. 4. n. 79. confess to have been alwayes of right in the King and Lords and not in them which sways away all the forecited presidents at once as impertinent and misapplied For the presidents of 21 R. 2. n. 29. 2 H. 5. n. 13 28 H. 6 n. 19. misrecited by Sir E. Cook 4 Instit p. 23. 3 Inst p. 22. they are already answered p. 296 297 299 344. And for those of Sir Giles Mompesson Sir Iohn Michel Viscount St. Alban and the Earl of Middlesex himself confesseth and I have here cleared p. 303 304. that the notable Iudgements against them were given by the Lords at the prosecution of the Commons who were only their prosecutors not Iudges These are all the Presidents I finde that are objected to give the Commons a share with the King and Lords in the Judicature in our Parliaments which evince it not but clearly disprove it The 2. sort of Presidents insisted on by Sir Ed. Cook are to prove a Judicial Authority in the House of Commons alone without the Lords in cases of their own Members and Servants in matters of elections breach of Privilege or misdemeanors in the Commons house for which they have imprisoned and sometimes fined Serjeants Baylifs Sherifs committed their own Members adjudged their elections void suspended excluded ejected them the house The 1. ease is that of Muncton 2 Aprilis 1 Mariae committed by the Commons to the Tower for striking William Iohnson a Burgess The 2. of Thomas Lucy 8 Eliz. removed out of the House for giving 4 l. to the Mayor of Westbury to be chosen a Burgess and the Maior fined and imprisoned The 3 of Arthur Hall 23. Eliz. who for discovering and publishing the Conferences of the House and writing a Book to the dishonour of the house was committed to prison These matters were examined and adjudged in the House of Commons Secundum legâ—m Consuetudinem Parliamenti and he thereupon committed to the Tower for 6. Moneths fined 500 marks and expelled the House And in that Parliament 18 Martii a fine was assesâ—ed by the House on every Member that was absent without leave To these alleged by Sir Edw. Cooke I shall superadd the ensuing Sir Robert Brandling was committed to the Tower 27 Eliz. for striking Witheâ—ington a Burgess 3 Jacobi one was fined for causing a Members Servant to be arrested though he claimed his privilege 12 Jacobi Locke and More were ordered by the Commons to ride both on one horse with their faces to the horses tail for arresting a Servant of Mr. Whitlocks then a Member against his privilege which was accordingly executed In 2 Caroli Sir George Hastings being elected knight for Leicestershire and he then being arrested his witnesses had their charges given them against the Sherif and he fined In the Parliament of 3. Caroli Sir Thomas Savils case 29. April 1628. Thomson Sherif and Henloe Alderman of York for abuses in the election were ordered to be committed to the Serjeant of the House during the pleasure of the Commons House to acknowledge their offences at the Barr on their knees and pay all due fees and to make a submission in York In 3. Caroli Mr. John Baber was suspended the house about billetting Souldiers In 3. Car. the Commons house committed Mr. Laughton and Mr. Trelawny to the Tower during pleasure and Sir William Wray and Mr. Edward Trelawny to the Serjeant at Arms and ordered them to make a submission acknowledgement of their offences in the House at the Bar and in the County at the Assises they kneeling at the Barr all the while the Speaker pronounced the Judgement against them for writing menacing Letters to Sir John Elliot and Mr. Coriton and to others of the County of Cornwall disturbing their election and contemning the warrant of the House when sent for In this Parliament of 17 Caroli now sitting the Commons house turned out sundry Members who were Projectors and voted out many others for Delinquency ordering New elections in their places without the King or Lord. I answer 1. That all these objected presidents are of very puny date within time of memory therefore unable to create a Law or custom of Parliament or any right of sole Judicature in the Commons House 2ly They were all made by the Commons themselves unfit Judges in their own cases much less over one another being all of equal Authority and so unable to seclude imprison or fine one another no more than one Judge or Justice to fine imprison or uncommission another since Par in parem non habet imperium 3ly They are all against Law because coram non Judice the Commons House having no right or power of Judicature much less of sole Judicature in our Parliaments but only the King and Lords as I have formerly proved by reasons and presidents in all ages 4ly These
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
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
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
ut parvulus parvulus enim non sapit nisi placentia adulatoria arguentem secundum veritatem non diligit ymmo odit supra modum Quondam autem veritus fuerat subpeditata ut nullus auderet loqui satis constat per hoc patet quod ille qui regnabat sapiebat ut parvulus vir enim non sapit talia set sapientiam unde per Dei gratiam dici poterit de isto viro quod scribitur Eccl. ix Beatus vir qui in sapientia morabitur sicut enim puer diligit vanitatem ita vir sapit veritatem sapientiam veritas ergo intrabit adulatio recedat quae tot mala in regno nostro fecerunt quia vir dominabitur populo qui veritatem sapit non qui vanitatem vel adulationem Tertio dicitur Cogitabam ut parvulus parvulus enim solum studet facere omnia voluntarie non ex ratione cum igitur puer regnat voluntas sola regnat ratio eâ—ulat ubi vero voluntas regnat ratio recessit constantia fugata est ita imminet magnum periculum ab isto periculo liberati sumus quia vir dominabitur ille scilicet qui dicit non sicut parvulus set sicut ratione perfectus Non veni facere voluntatem meam set ejus qui misit me scilicet Dei ideo de viro isto non solum dicemus quod in sapientia morabitur set eciam ut vir non ut puer in sensu cogitabit circumspectionem Dei id est circumquaque diligenter aspicit ut Dei voluntas non sua fiat ita loco pueri voluntarie lascivientis vir modo dominabitur in populo iste vir est talis quod dicetur Regnabit Rex sapiens erit faciet judicium justitium interra Qua collatione completa dictus Dominus Rex Henricus ad ponendum suorum subditorum animos in quiete dixit publice tunc ibidem haec verba Sires I thank God and yowe Spirituel and Temporel and all the estates of the Lond and do yowe to wyte it es noght my will that no man thynk that be waye of conquest I wold disherit any man of his heritage franches or other ryghts that hym aght to have to put him out of that that he has and has had by the gude Lawes and Customes of the Rewme Except thos personâ— that has been agan the gude purpose and the common profit of the Rewme Et protinus hoc attento quod per prius vacante sede regali per cessionem depositionem praedictas cessavit omnis potestas quorumcunque Justiciariorum Vicecomitum aliorium Officiariorum ubique per regnum ne exhibitio justitiae in gravamen populi dilationis incommodo subjaceret suos officiarios principales ac eciam Justiciarios deputavit ibidem juramento consueto Regi praestito per singulos eorundem Et fuit ilico de dicti Regis mandato publice proclamatum ibidem quod die Lunae proximo post festum sancti Michaelis Parliamentum ibidem teneri celebrari deberet quodque die Lunae proximo extunc sequente videlicet in festo sancti Edwardi Coronatio dicti Regis fieret apud Westmonasterium quod omnes illi qui vendicare voluerint aliquod servitium se in dicta Coronatione facturos eo praetextu aliquid sibi deberi venirent ad Albam aulam palacii coram Senescallo Constabulario Marescallo Angliae die Sabbati proximo ante diem Parliamenti praedicti quod in ea parte justum fuerit petituri quibus plena justitia fierit in petitis Quantum autem ad abbreviationem assignationis diei Parliamenti praedicti fuerat pro parte dicti Regis protestatio talis facta videlicet quod non erat intentionis suae ut statibus regni sui praejudicium afferatur exinde nec quod hoc trahatur de caetero in exemplum quinymmo quod abbreviatio illa fiebat tantummodo pro commodo utilitate regni specialiter ut quorumcunque ligeorum suorum parcatur laboribus expensis quodque super gravaminibus populi celere possit remedium adhiberi Quibus omnibus sic peractis Rex desede sua regali surgens populum vultu hillari benigno respiciens abinde populo congaudente recessit in Alba aula praedicta convivium regni Proceribus ac generosis illuc in multitudine maxima congregatis eodem die solempnissime celebravit ET POSTMODUM die Mercurii proximo extunc sequente dicti Procuratores ut praemittitur deputati ad praesentiam dicti Richardi nuper Regis infra dictam Turrim existentis prout eis injunctum fuerat accesserunt praefatus Dominus Willielmus Thirnyng Justiciarius pro se dictis sociis comprocuratoribus suis nomine omnium statuum populi praedictorum admissionem dictae renunciationis ac modum causam formam sententiae depositionis hujusmodi eidem Ricardo notificavit ac plenius declaravit statim homagium fidelitatem eidem Ricardo nuper Regi ut praemittitur facta resignavit reddidit sub hiis verbis Les paroles qe William Thirnyng parla a monsire Richard nadgaires Roy d' Engleterre a le Toure de Londres en sa Chambre le Mesqerdy procheyn apres le fest de Seint Michell larchaunchel sensuent SIRE It is wele knowe to yowe that ther was a Parlement somond of all the States of the Reaume for to be at Westmynstre and to begynne on the Tuesday in the morne of the fest of Seint Michell the Archaungell that was yesterday by cause of the whiche Sommons all the States of this lond were there gadyrd the whiche States hole made thes same persones that ben comen here to yowe now her Procuratours and gafen hem full auctorite and power and charged hem for to say the wordes that we sall say to yowe in her name and on thair behalve that is to wytten the Bysshop of Seint Assa for Ersbisshoppes and Bisshoppes the Abbot of Glastenbury for Abbots and Priours and all other men of holy Chirche Seculers and Rewelers the Erle of Gloucestre for Dukes and Erles the Lord of Berkeley for Barones and Barnerettes Sir Thomas Irpyngham Chamberleyn for all the Bachilers and Commons of this Lond be south Sire Thomas Grey for all the Bachilers and Commons by north and my Felawe Johan Markham and me for to come wyth hem for all thes States and so Syre thes wordes and the doyng that we sall say to yowe is not onlyâ—h our wordes bot the wordes and the doynges of all the States of this Lond and our charge and in her name And he answered and said that he wyst welâ— that we wold noght say but as we were charged Sire ye remembre yowe wele that on Moneday in the fest of Seint Michell the Archaungell ryght here in this Chambre and in what presence ye renounsed and cessed of the state of Kyng and of Lordesship and of all the Dignite
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
Picardy ready to be transported into England But when it was certainly certified that King Richard was dead and that their enterprise of his deliverance was frustrate and void the Army scattered and departed asunder But when the certainty of King Richards death was declared to the Aquitaynes and Gascons the most part of the wisest men of the Country fell into a bodily fear and into a deadly dread for some lamenting the instability of the English people judged them to be spotted with perpetual infamy and brought to dishonour and loss of their antient fame and glory for committing so hainous a crime and detestable an offence against their King and Soveraign Lord. The memory whereof they thought would never be buried or extincted Others feared the loste of their goods and liberties because they imagined that by this civil dissension and intestine division the Realm of England should so be vexed and troubled that their Country if the Frenchmen should invade it should be destitute and left void of all aid and succour of the English Nation But the Citizens of Burdeaux took this matter very sore at stomach because King Richard was born and brought up in their City lamenting and crying out that since â—he beginning of the world there was never a more detestable or more villanous or hainous act committed which being sad with sorrow and inflamed with melancholy said that untrue unnatural and unmercifull people had betrayed and slain contrary to all Law and Justice and honesty a good man a just Prince and lawfull Governour beseeching God devoutly on their knees to be the revenger and punisher of that detestable offence and notorious crime 15ly The proceedings against King Richard the 2. in the Parliament of 1 H. 4. were in the Parliament of 1 E. 4. n. 9 10 11 12. condemned as illegal the Tyrannous usurpation of Henry the 4th with his hainous murdering of King Richard the 2. at large set forth his reign declared by Act of Parliament to be an intrusion and meer usurpation for which he and the heirs of his body are utterly dis inabled as unworthy to enjoy any inheritance estate or profits within the Realm of England or Dominions of the same for ever and that by this memorable Petition of the Commons wherein the pedigree of King Edward the 4th and his title to the Crown are likewise fully set forth a Record most worthy the publike view being never yet printed to my knowledge Ex Rotulo Parliamenti tenti apud Westm anno primo Edwardi Quarti n. 8. Memorandum quod quaedam Petitio exhibita fuit praefato Domino Regi in praesenti Parliamento per praefatos Communes sub eo qui sequitur tenore verborum For as much as it is notary openly and evidently known that the right noble and worthy Prince Henry King of England the third had issue Edward his furst gotten Son born at Westminster in the 15 kalende of Juyll in the vigille of Seint Marce and Marcellian the year of our Lord M. C.C.XLV the which Edw. after the death of the said King Henry his Fader entituled and called King Edward the furst had issue his furst gotten Son entituled and called after the decease of the same Edward the furst his Fader King Edward the second which had issue the right noble and honourable Prince King Edward the third true and undoubted King of Englond and of France and Lord of Irelond which Edward the third had issue Edward his furst gotten Son Prince of Wales William Hatfield secund gotten Son Leonel third gotten Son Duke of Clarence John of Gaunt fourth gotten son Duke of Lancaster Edmund Langley the fifth gotten son Duke of York Thomas Wodestoks the sixth gotten son Duke of Gloucester and William Wyndesore the seventh gotten Son And the said Edward Prince of Wales which died in the life of the said King Edward the thurd his Fader had issue Richard which after the death of the same King Edward the third as Cousin and heir to him that is to say Son to the said Edward Prince of Wales Son unto the said King Edward the third succeeded him in royal estate and dignity lawfully entituled and called King Richard the secund and died without issue William Hatfield the secund gotten Son of the said King Edward the third died without issue the said Leonel Duke of Clarence the third gotten Son of the same King Edward had issue Phelip his only daughter and died And the same Phelip wedded unto Edmund Mortimer Earl of Marche had issue by the same Edmund Roger Mortymer Earl of Marche her Son and heir which Edmund and Phelip died the same Roger Earl of March had issue Edmund Mortymer Earl of March Roger Mortymer Anne and Alianore and died And also the same Edmund and Roger sons of the foresaid Roger and the said Alianore died without Issue And the same Anne wedded unto Richard Earl of Cambridge the Son of the said Edmund Langley the fifth gotten son of the said king Edward the third as it is afore specified had issue that right noble and famous Prince of full worthy memory Richard Plantagenet Duke of York And the said Richard Earl of Cambridge and Anne his Wife died And the same Rich. Du. of York had issue the right high and mighty Prince Edward our Liege and Soveraign Lord and died to whom as Cousin and heir to the said King Richard the Crown of the Realm of England and the royal power estate dignity preheminence and governance of the same Realm and the Lordship of Ireland lawfully and of right appertaineth of the which Crown Royal power estate dignity preheminence governance and Lordship the said King Richard the second was lawfully rightfully and justly seised and possessed and the same joyed in rest and quiet without interruption or molestation unto the time that Henry late Earl of Derby son of the said Iohn of Gaunt the fourth gotten son of the said King Edward the third and younger Brother of the said Leonel temerously agenst rightwisnes and Iustice by force and Arms agenst his faith and liegeaunce rered werre at Flynte in Wales agenst the said King Richard him took and enprisoned in the Tower of London of grete violence And the same King Richard so being in prison and living usurped and intruded upon the royal power estate dignity preheminence possessions and Lordships aforesaid taking upon him usurpously the Crown and name of K. and L. of the same Realm and Lordship And not therewith satisfied or content but more grievous thing attempting wickedly of unnatural unmanly and cruel tyranny the same King Richard King anointed crowned and consecrate and his Liege and most high Lord in the Earth agenst Gods Law Mans liegeance and Oth of fidelite with uttermost punicion attormenting murdred and destroyed with most vile hainous and lamentable death whereof the heavy exclamation in the doom of every Christian man soundeth into Gods hearing in Heaven not forgotten in the Earth specially in this
advis and assent of the Lords Spiritual and Temporal and Commyns in the seid Parliament assembled and by authorite of the same declared approved ratified confirmed and accepted the seid title just good lawfull and true and thereunto gave his assent and agrreement of his free will and liberty And over that by the seid advis and auctorite declared affirmed and reputed the seid Richard Duke of York very true and rightfull heir to the Crowns Royal estate and dignite of the Realms of Englond France and Lordship of Irelond aforeseid And that according to the worship and reverence thereto belonging he should be taken accepted and repuâ—ed in worship and reverence by all the Estates and persons of the seid Realm of Englond The seid Usurper late called King Henry the sixth saving and reserving to himself the seid Crowns Realms royal estate dignite and preheminence of the same and the seid Lordship of Ireland during his life natural And further more by the same advice and authotiâ—e would consented and agreed that after his decease or when it should please him to lay from him the seid Crowns estate dignity and Lordship or thereof ceâ—â—ede the seid Richard Duke of York and his heirs should immediately succeed him in the seid Crowns Royal Estate dignity and Lordship and them then have and enjoy any Act of Parliament Statute Ordinance or any thing to the contrary made or interruption or discontinuance of possession notwithstanding And if any person or persons from thenceforâ—h imagined or compaced the death of the seid Richard Duke of York it be deemed and judged high Treason in manner and form as it is specified in the seid Act And that the seid Noble Prince Richard Duke of York by way and consideration of recompence for his abstaining for a time of the exercise of the seid royal power of the benigne and noble disposition that he bare to the said Common wele and to the rest and tronquillity of the seid Realm should have Castles Mannors lands and tenements to the value of 10 Mil. Marc. whereof the Earldom and City of Chester was parcel assigned to the said Duke by special Act made in the seid Parliament the which Earldom and City the seid Duke gave among other unto our seid Soveraign Lord then being Earl of March as parcel of Manors Lordships lands and tenements of the yearly value of 3 Mil. Marc. which by vertue of the seid convention and concord and the Act thereof made was given unto him for the sustentation of his estate abiding and persevering like a true Christian and honourable Prince in full purpose to keep and observe the seid Convention and concord for his party trusting verily that the seid Usurper Henry late called King Henry the sixth would have truly faithfully justly keped and observed for his party the same convention and concord inviolable as by Law reason Princely honour and duty he was bounden to doe and not have departed and varied from such convention made of so high and so great authority as it was made whereunto neither our seid Soveraign Lord ne the seid noble Prince assented but without prejudice of the seid right and ritle as it is plainly specified in the sâ—id Act made upon the seid convencion and Concord and under protestation and condition that the seid Usurpour shuld kepe and perform without fraude or male ingyne all things therein contained for his seid party declared openly by their mouths in the presens and heryng of the said Lords in the seid Parliament and therein enacted of Record at the grete instaunce and prayer of the same Usurpour late called King Henry the sixth And at the solempne request of all the seid Lords for the tender and special zele love and affection that he bare to the rest of the seid Realm and to the Commyn wele and policy thereof toke his viage of good blessed and vertuous intent and disposition toward the North parties of the said Realm to repress and subdue certain riots rebellions insurrections and commotions there begun And the premises notwithstanding the seid Henry Usurpour late called King Henry the sixth continuing in his old rancour malice using the fraud and malicious disceit and dissimulation agenst trouth and conscience that accord not with the honour of eny cristen Prince to th entent that the said Agrement concord and Act shuld take no due effect And into the frustacion of the same in the matiers and things above reherced that is to say that neither the seid Richard Duke shuld have ne enjoy the same Castells Manoirs lands and tenements name title reverence and worship above reherced neither he ne his sons and heirs succeed in the seid Corones Royal estate dignity lordship after the tenure fourm and effect of the said agreement concord and Act with all subtil imaginacions and disceitful ways and means to him possible intended and covertely laboured excited and procured the final destruction murdre and death of the said Richard Duke and of his Sons that is to sey of our seid new Soveraign Lord King Edward the fourth then Earl of March and of the noble Lord Edmund Earl of Ruthlande And for the execution of his dampnable and malicious purpose by writing and other messages moeved excited and stirred thereunto the Dukes of Excester and Somerset and other Lords being then in the North parties of this Realm whereupon at Wakefeld in the Shire of York the seid Duke of Somerset falsely and traiterously the same Noble Prince Duke of York on Teiusday the 30 day of Decemb. last passed horribly cruelly traiterously murdered And also the worthy and good Lords Edmund Earl of Ruthland Brother of our seid Soveraign Lord and Richard Earl of Salesbury And not therwith content of their insatiable malice after that they were dede made them to beheaded with abhomynable cruelte and horrible despite agenst all humanite and nature of Nobles And after that the same Henry Usurpour gretely and wonderfuly joying the seid dolorous and piteous murder of the same noble Prince and worthy Lords to the Realm an heavy and a lamentable sorrow and lost forthwith and oftentimes after openly declared to divers Lords of the same Realm That he would not in any wise kepe the seid Convencioun and accord ne the act thereof made and to the infraccion and violatiation of the said convention and concord not only sent Letters made under his prive Seal unto certain Knights and Squiers commaunding and charging them by the same to spoil and disseise our seid Soveraign Lord by the name of Earl of March of his possession of the seid Earldom and Citee of Chester whereof he was lawfully possessed and seased by vertue and reason of the seid Convencion and Concord but also of extreme violence utter and final breche of his party of the seid convencions and concord sent out writs under his Seal to the Mayer Aldermen and Commonalte of the Citee of London bering date the 22 day of Feverere last past and other like
Christ beseeching all that fear God to behave themselves as obedient Subjects to the Queens Highness and the superiour powers which are ordained under her rather after their example to give their heads to the block than in any point to rebell against the Lords anointed Queen Mary in no point consenting to any Rebellion or sedition against her Highness but where they cannot obey but must disobey God there to submit themselves with all patience and humility to suffer as the will and pleasure of the higher powers shall adjudge Against the doctrine practice of some new Saints of this iron age who will ward off Christs wooden Cross with their iron swords and rather bring their Soveraigns heads to the block than submit their own heads unto it for their very Treasons and Rebellions against them So farr are they from believing practising the very first Alphabetical Lesson of our Saviours prescription and real Christanity Mat. 16.24 If any man will come after me let him deny himself and take up his cross and follow me The Duke of Northumberland for that he was appointed General of the Army in this Quarrel of the Lady Jane though Queen de facto was arrested of High Treason together with 3. of his Sons the Marquess of Northampton the Earl of Huntindon with sundry Knights Gentlemen and sent prisoners to the Tower of London The 16. of August next following the said Duke and Nobles were publikely arraigned of High Treason in Westminster hall before Thomas Duke of Norfolk High Steward of England being brought to the bar the D. used great reverence to his Judges professing his faith and allegiance to the Queens Majesty whom he confessed he had grievously offeâ—ded saying that he meant not to speak any thing in defence of his face but would first understand the opinion of the Court in 2. points 1. Whether a man doing any Act or thing by authority of the Princes Councel and by Warrant of the Great Seal of England and nothing doing without the same may be charged with TREASON for doing any thing by such Warrant Which question was grounded on this very Statute of 11 H. 7. c. 1. 2. Whether any such persons as were equally culpable in that crime and those by whose Letters and Commandment he was directed in all his doings might be his Iudges or passe upon his Tryal as his PEERS To the 1. was answered mark it That the Great Seal he had for his Wâ—rrant was not the Seal of the Lawfull Qu. of the Realm nor pâ—ssed by her Authority but the Seal of an Vsurper and therefore could be no Warrant to him To the 2. That if any were as deeply to be touched in that Case as himself yet so long as no attainder was of Record against them they were nevertheless persons able in Law to pass upon any tryal and not to be challenged therefore but at the Princes pleasure After which the Duke and the rest of the Lords using but few words declaring their earnest repentance and imploring the Queens mercy confessed this Indictment of Treason and thereupon had Iudgement passed upon them as Traytors And the Duke with Sir Iohn Gates and Sir Thomas Palmer were accordingly executed on Tower Hill August 22. confessing the Iustice both of their Iudgement and Execution as TRAYTORS and not justifying themselves by the Act of 11 H. 7. After this Archbishop Cranmer though at first he refused to subscribe K. Eds. will to dis-inherit Queen Mary alleging many reasons against it yet was committed Prisoner to the Tower indicted arraigned condemned of High Treason in November following for aiding the Earl of Northumb. with Horse and Men against Queen Mary And Queen Jane herself though Queen de facto meerly passive not active in this case never aspiring after the Crown being proclaimed Queen against her will with the Lord Guyldsord her husband were both indicted arraigned condemned of High Treason and accordingly executed as Traytors Feb. 12. 1 Mariae the one for usurpation of the royal Estate AS QVEEN OF ENGLAND the other as principal adherent to her in that case both of them confessing that BY THE LAW THEY WERE JUSTLY CONDEMNED After which the Duke of Suffolk her father and sundry others were condemned of High Treason executed upon the same account and that by the judgement of all the several Peers Nobles Judges Lawyers and Great Officers of Engl. though guilty of the same crime seconded with the Judgement of the whole Parl. of 1 Mar. c. 16. which confirmed their Attainders as JUST and LEGAL notwithstanding the Statute of 11 H. 7. c. 1. which extends only to indemnifie those Subjects who doe their true duty and service of allegiance to their King and Soveraign Lord which none certainly do who adhere and joyn with an apparent Usurper in possession against their lawfull undoubted King and Soveraign Lord as they here adjudged and the Parliaments of 1 4 and 14 of King Edward the 4th long before no Acts of Parliament whatsoever being able to secure Usurpers Titles though Kings de facto to themselves or their posterity or to save their own or their adherents Heads from the block or their estates from confiscation as the recited tragical Presidents and Judgements prove against the absurd opinions of many Grandees of the Law in great reputation who take all Sir Edward Cooks and others Dotages for Oracles and well deserve a part in Ignoramus for being ignorant of these late notorious Judgements and authorities against their erronious opinions wherewith they seduce their silly Clyents and young Students of the Law to their great peril for whose better information I have the larger insisted on this point to rectifie this dangerous capital mistake which may hazard both their lives estates and souls to boot And so much in answer to the objected Presidents of Edward and Richard the 2d to prove the Commons Right of Judicature in Parliaments c. As good an evidence as that grave Sir E. Cook produceth to prove this House of Commons who had no Journal Book till â— Ed. 6. to be a distinct Court of Iudicature because upon signification of the Kings pleasure to the Speaker they do and may prorogue or adjourn themselves and are not prorogued adjourned by the House of Lords By which reason he might prove every Committee of the Lords or Commons House to be a distinct Court because they may adjourn and prorogue themselves without the House and all Commissioners for examination of Witnesses Charitable uses the petty Sessions of Justices of Peace all Country Committees Archdeacons and other visitors all Auditors of Accounts Arbitrators Referrees c. to be Courts because they may all adjourn themselves from one day and place to another when as their presenting of their own Speakers in and the Kings calling them into the Lords House at the beginning and end of every Parliament or Session and at the passing of Bills and their dissolution in the Lords
should be holden once every year or more often if need be to redress divers mischiefs and grievances which daily happen especially delayes in Judgements and sutes at Law through difficulty or diversity of Opinions among the Judges To prevent which the Statute of 14 E. 3. c. 5. enacts that from henceforth at every Parliament shall be chosen a Prelate two Earls and two Barons which shall have Commission and power of the King to hear by Petition delivered to them the complaints of them that will complain of such delayes and grievances and to cause the records of such Judgements to be brought before them and to hear the cause and reasons of such delayes and by the assistance and advice of the Chancellor Treasurer Justices of both Benches and as many other of the Kings Council as shall seem convenient shall proceed to take a good award and make a good judgement therein And that the Judges shall proceed hastily to give Judgement according to their determination And in case it seemeth to them the difficulty be so great that it may not well be determined without the assent of the Parliament that the said Prelate Earls and Barons shall present the tenor or tenors of the said record or cause to the next Parliament and there shall be a final accord taken what judgement ought to be given in his case And according to this award shall be commanded to the Judges before whom the plea did depend that they shall proceed to give Judgement without delay And to begin to give remedy upon this Ordinance it was assented that a Commission and power be made to the Archbishop of Canterbury the Earls of Arundel and Huntington the Lord of Wake and the Lord Raufe Basset to endure till the next Parliament After which I find this Commission made in pursuance of this Ordinance Edwardus Dei gratia c. authorizing the Bishop of Chichester the Earls of Huntingdon and Devonshire and Tho. Wake of Lidell and Thomas de Berkley Barons assigned to hear querelas omnium qui se de gravaminibus dilationibus sibi factis coram Iustic et aliis conqueri voluerint per avisamentum Cancell Thes Iustic de atroque Banco aliis dâ— Consilio Regis according to the Ordinance made in Parliament 14 Ed. 3. c. 5. that Unus Praelatus Duo Comites et Duo Barones should have Commission and power to hear and determine such complaints Test Rege apud Westm nono die Iunii There is this Petition of the Commons to the King for declaring Treasons in 25 E. 3. Rot. Parl. n. 17. Item come les Iustices nostre Seignior le Roy assignez en diversâ—es Countees ajuggent les gentz que sont empeschez devant eux come Traiteurs pur diverses Causes desconues a la Comune estre Treason que please a nostre Seignior le Roy per son Counseâ—l eâ— per les Grantz et sâ—ges de la terre declarer les pointz de Treason en cest present Parlament Quant aâ—la Petition touchant Treason nostre Seignior le Roy ad Fait declarer les Articles de Y celle en maneâ— que ensuit as in the Statute of 25 E. 3. c. â— By which Petition Act and the like Petition in 21 E. 3. n. 15. it is apparent That the Right of declaring Judging what is High Treason in Parliament belongs originally to the King himself by the advise of his Councel Great men and Sages of the Land and not unto the Commons House at whose request the KING then made a Declaration of the Articles of Treason as in this Statute by his Nobles Councils and Iudges advice Therefore the Declaration of all other Treasons in particular cases not within this Statute belongs wholly to the King Lords Council and Judges in the Lords House not to the Commons alone or joyntly with them within the later branch of this Act as well as the Treasons within the body thereof viz. Because that many other like cases of Treason may happen in time to come which a man cannot imagin nor declare at this present time it is accorded that if any other case supposed Treason which is not before specified shall happen de novel before any Iustice the Iustice shall demurâ— without going to Iudgement of the Treason tanque per devant le ROY EN SON PARLEMENT soit le case monstre et declare de que leceo doit estre a jugge Treason ou autre Felony Against the Opinion of Sir Edward Cooks 3 Institutes p. 22. The Commons having no power at all to declare and judge what shall be Treason in such new particular cases but only when a New Treason is made or declared for the future by Bill or Act of Parliament wherein their concurrence is necessary as in all new Acts concerning Treasons since 25 E. 3. as is evident by Mr. Sr. Iohns Argument at Law this very last Parliament at the Attainder of Thomas Earl of Strafford and Mr. Samuel Browns Argument at the Lords House Bar to prove and satisfie the Lords House that he and Archbishop Laud were guilty of High Treason upon the Articles of their several Impeachments exhibited and proved against them of which the Lords and King alone were the proper Iudges but the Commons only their Impeachers and Prosecutors in the Iudicial way of Parliamentary Proceedings as I have formerly evidenced Therefore all the late Votes knacks Declarations of the Commons House alone before or without the Kings House of Lords Declarations Resolutions of sundry things to be high Treason and divers persons to be Traytors upon bare informations suggestions though not within the Letter of 25 E. 3. c. 2. are but meer illegal innovations extravagancies yea Nullities in Law fit to be eternally exploded especially by Lawyers the chiefest Innovators Promoters of them rather out of ignorance or rashnesse than Prudence Law or solid Iudgement for which they can produce no presidents in former ages In the year 1392. the 15 of King Rich. the 2. we have this memorable President of the Lords Iudicature together with the King assembled in a Great Councel without the Commons in the case of the Mayor Sherifs Citizens and City of London thus related by Walsingham at large Misit Rex ad Cives Londoniarum petens ab eis mutuo mille libras cui procaciter et ultra quam decuit restiterunt Sed quendam Lumbardom volentem accommodare regi dictam summam male tractaveâ—unt veâ—beraverunt er paulominus occiderunt Quae cum Rex â—udisset iâ—aâ—us est valde et convocaas omnes regnipene Majorâ—s apperuit proterviam civium Londoniarum et de praesumptione conqueritur eorundem Qui omnes infesti Civibus propter diversas causas consulunt ut reprimatur citius eorum insolentia et superbia destruatur Eranc quippe tunc inter omnes fere nationes gentium clarissimi arrogantissimi et avarissimi ac male creduli in deum traditiones avitas Lolardorum sustentatores
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
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