right to award Judgement in these cases without the King or them then which a fuller and clearer proofe cannot be desired In the self-same Parliament 1. R. â— num 41 42 43. Dame Alice Piers was brought before THE LORDS and charged by Sir Richard le Scrope with sundry misdemeanors which she denied hereupon divers Witnesses were examined against her Whereupon JVDGEMENT WAS GIVEN BY THE LORDS AGAINST HER that she should be banished and forfeit all her lands goods and tenements whatsoevèr To this Judgement neither King nor Commons were parties but the Lords only To these I might adde the cases of c See the doom of 〈◊〉 and treachery 〈◊〉 14 15. where the record is transcribed Sir William de Eleuham Sir Thomas Trivet Sir Henry de Ferriers and Sir William Farnden Knights and Robert Fitz Ralph Esquire Rot. Parl. 7. R. 2. num 24. sentenced and condemned by judgement of the Lords in Parliament pronounced by the Chancellour for selling the Castle of Burbugh with the armes and ammâ—nition in it to the Kings enemies without the Kings license 21. R. 2. Parl. Rot. Plac. Coronae num 27. where Sir Robert Pleasington is adjudged a Traytor after his death by the King by â—SSENT OF THE LORDS and num 15. 16. Sir Thomas Mortimers case num 17. Sir John Cobhams case * 31. H. 6. n. 45. 64. 65. â— 3. n. 16. to â—8 and num 28. Henry Bonoits case condemned in like manner of treason by the Lords with hundreds of Presidents more I shall only cite three more at large which are punctuall 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 suit 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 triall 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 HVNDRED MARKS TO THE SAID EARL for the which and for his fine and ransome he was committed to prison BY THE LORDS A direct case in point In the second Parliament in 7. R. 2. num 13. to 19. Iohn Cavendish a Fishmonger of London accused Michael de la Pool Knight Lord Chaâ—cellour of England first before the Commons and afterward before the Lords for bribery and injustice and that he entereâ—â—â—nto a Bond of x. l. to Iohn Ottard a Clerk to the said Chancellour which he was to give for his good successe in the businesse in part of payment wâ—â—â—eof he brâ—ught Herring and Sturgeon to Ottard and ye was delayed aâ—d could have no justice at the Chancellours hâ—nds and upon hearing he cause and examining wiâ—â— oâ—fes upon Oath before THE LORDS the Chancellour was cleared The Chancellour thereupon required reparation for so great a slander the Lords being then troubled with other weighty matters let the Fish-monger 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 Chancellour and adjudged him to prison till he had paid the same to the Chancellour and made fine and ransome to the King also which the Lords confirmed In the Parliament of 15. R. 2. nu 21. Iohn Stradwell of Begsteed in the County of Sussex was committed to the fleet by JVDGEMENT OF THE LORDS there to remain during the Kings pleasure for that he informed the Parliament that the Archbishop of Canterbury had excommunicated him and his neighbours wrongfully for a temporall cause appertaining to the Crown and Common Law whâ—ch was ADIVDGED BY THE LORDS upon examination and hearing to BE VNTRVE These three eminent Presidents to which many more might be added of the Lords fining and imprisoning meere Commons only for slandering Peeres of Parliament even by false accusations against them in Parliament by way of complaint will â—â—stify the Lords proceedings against Lilburn and Ovâ—rton for their professed Libells both against their Persons and Jurisdictions too To proceed to latter times in Parliaments of 18. and 21. Jacobi and 3. Car. not only the Lord * Cook 4. Instit p. 23. Chancellour Bacon and the Earl of Middlesex Lord Treasurer upon complaint of the Commons were censured and judged by the Lords alone but likewise Sir Giles Mompesson Sir Iohn Michell and Dr Manwering all Commoners JUDICIALLY SENTENCED Doctor Pocklinton and Doctor Bray even for erroneous Books and Sermons were sentenced this Parliament by the Lords alone since these Master Clement Walker Esquire was imprisoned in the Tower and fined by the Lords for some words pretended to be spoken against the Lord Say and within these few moneths onâ— Morrice and foure or five more of his confederates were censured fined and imprâ—soned by the Lords alone for forging an Act of Parliament upon Sir Adam Littletons complaint with all the Commons privity or consents and above one hundred Commoner more have been imprisoned by them or fined this very Session of Parliament for breach of Priviledge contempts or misdemeanours by the Lords alone without the Commons yet no demurrer nor exceptions were taken by them or the Commons to their Iurisdiction who applauded this their Justice in some of these cases From all these cleare confessions of the Commons themselves in Parliament and punctuall presidents in print in former late Parliaments and in this now sitting it is undeniable That the King and Lords joyntly and the Lords severally without the King have an indubitable right of Judicature without the Commonâ— vested in them not only of Peers themselves but likewise of Câ—mmoners in all extraordinary cases of Treason Felony Trespasse and other Misdemeanors triable only in Parliament which hath been constantly acknowledged practised and submitted to without dispute much more then have they such a just and rightfull power in case of breach of their owne priviledges of d Cooke 4 Instit p. 15. which none are or can be Judges but themselves alone And to deny them such a power is to make the Highest Court of Iudicature in the Realme inferiour to the Kings Bench and all other Courts of Justice who have power to judge and try the persons and causes of Commoners and to commit and fine them for contempts and breaches of Priviledges as our e See Brooke and Ashes Tables Tit. Contempts Fines pur Contempt Imprisonment Law bookes resolve and every mans experience can testifie The Lords right of Judicature being thus fully evicted against the false and ignorant pretences of illiterate Sectaries altogether unacquainted with our Histories and Records of Parliament
Iudicature and this is all which is proved by 15. E. 2. Hugh Spencers case who was judged and banished by an Act of Parliament intituled Exilium Hugonis le Spencer printed in old Magna Chartaes as Sir Edward Cooke himselfe reports in Calvins case 7. Report f. 11. b. and the Lord Audlyes case 12. E. 2. is the same the Commons having no right to judge them being Peers by the very * See Cooke 2. Instit f. 49. 50. 51. Statute of Magna Charta c. 29. but only the Peer except in a Legislative way by Act or Bill Secondly That in all cases of difficultie where the King shall please to demand the advise and opinions of both Houses of Parliament joyntly there both of them may and ought to joyne in delivering their opinions and Judgements of the case or thing propounded and this is all that * Cooke 3. Iâ—qâ— p 7. where is Case of â—â—grave is cited at large Sir Nicholas de Seagraves case proves 31. E. 1. rot 33. Who being charged in Parliament in presence of the King Earles Barons and OTHERS OF THE KINGS COUNCEL not the Commons or Burgesses but the Iudges and Kings learned Councell at Law * See the Free-holders Grand Inquest 2. 39. 40. 41. 42. and Privy Councell who were assistants to the Lords as I conceive and others of his Privy Councell which Sir Edward Cooke would have to expresse the Commons in Parliament then and there present that the King in the wars of Scotland being among his enemies Nicholas Seagrave his leigman who held of the King by Homage and fealty and served him for his ayd in that warre did maliciously move discord and contention without cause with John de Crombewell charging him with many enormous crimes and offered to prove it upon his body To whom the said John answered that hee would answer him in the Kings Court c. and thereupon gave him his faith After which Nicholas withdrew himselfe from the Kings host and ayd leaving the King in danger of his enemies and adjourned the said John to defend himselfe in the Court of the King of France and prefixed him a certaine day and so as much as in him was subjected and submitted the Dominion of the King and Kingdome to the subjection of the King of France and to effect this hee tooke his journey towards Dover to passe over into France All which he confessed and submitted himselfe therein de alto et basso to the Kings pleasure And hereupon the King willing HABERE AVISAMENIUM to have the advise of the EARLES BARONS LORDS magnatum and OTHERS OF HIS COUNCELL enjoyned them upon the Homage fealty and allegiance wherewith they were obliged to him quod ipsi fideliter CONSVLERENT they should faithfully ADVISE HIM what punishment should be inflicted for such a fact thus confessed Qui omnes habito super hoc diligenti tractatu avisamento c. Who all having had thereupon diligent debate and advise having considered and understood all things contained in the said fact DICVNT not by way of Iudgement judicially pronounced but of answer to the Kings question propounded and as their opinion of the cause Said that this fact DESERVES losse of life and members c. So as this offence notes Sir Edward Cooke was then adjudged in Parliament to be High Treason But under his favour First here was no Judgement at all given against the party himselfe but only an opinion and advise touching his case not pending judicially in Parliament by way of Inditement or Impeachment but voluntarily proposed by the King in answer to the Kings question and so it can be no proofe of any actuall proper Judicature vested in both Houses Secondly For ought appeares this question was only propounded to the Earles Lords Barons and the Kings Councell that assisted them and so only to the House of Peers not to the commons and answered resolved only by them * See the Freeholders grand Inquest p. 39. 40. 41. 42. aliorum de Concilio suo not expressing nor including the Commons as I apprehend being never so intitled in any Parliament Records for ought I can find And then it followes that the LORDS ONLY IN THAT AGE were the Judges even of Commoners cases Thirdly Admit the Commons were included yet it proves only a right of advising and delivering their opinions with the Lords when required by the King not of judging or pronouncing sentence Fourthly Sir Edward Cooke citing this president to prove That both Houses together have power of Iudicature must grant that even in 33. E. 1. there were two distinct Houses of Parliament who upon speciall occasions as now at conferences c. met and advised together and therefore the division of the Houses was before Edward the third his raigne and very probable as ancient as this summoning of Knights Citizens and Burgesses of the Parliament which some make no ancienter then King Henry the first or King Henry the third In the 40. yeare of his reigne Father to King Edward the first So as this president makes quite against the Levellers and Lilburnians designes The Freeholders Garnd Inquest p. 13. 14. 15. and opinions Fourthly Sir Iohn at Lees case 42. E. 3. num 20. said to be adjudged by the Lords and Commons is somewhat mistaken For the record only mentions That the 21 day of May the King gave thanks to the Lords and Commons for their coming and ayd granted on which day ALL THE LORDS SVNDRY OF THE COMMONS dined with the â—ing After which dinner Sir Iohn at Lee was brought before the King LORDS COMMONS next aforesaid who dined with the King to answer certaine objections made against him by William Latymer about the wardship of Robert Latymer that Sir John being of power had sent for him to London where by duresse of imprisonment he inforced the said William to surrender his estate unto him which done some other Articles were obâ—ected against the said Sir Iohn Of which for that he could not sufficiently purge himselfe HE was committed to the Tower of London there to remaine till he had made fine and ransome at the Kings pleasure and command given to the Constable of the Tower to keep him accordingly And then the said Lords and Commons departed After which he was brought before the Kings Councell at Westminster which COVNSELL ORDERED the said ward to be released into the Kings hands So as this record proves not this judgement was given in the Parliament house nor that the Lords and Commons adjudged Sir Iohn but rather the King and his Councell in the presence of the Lords and Commons Fifthly The judgement given against the Lord Latymer 15. E. 3. Parl. rot num 27. which was for his default in government against the profit of the King and Realm procuring of grants to the destruction of the Staple and Towne of Calayes and levying Impositions upon woolls was given in full Parliament BY THE BISHOPS and LORDS who
said Sommons be he Archbishop Bishop Abbot Prior DUKE LORD BARON Baronet Knight of the Shire Citizen of City Burgesse of Burgh or other singular person or Commonalty do absent himselfe or come not at the said Summons except he may reasonably or honestly excuse himself to our Soveraigne Lord THE KING HE SHALL BE AMERCED and OTHERWAYES PVNISHED ACCORDING AS OF OLD TIME HATH BEEN USED TO BE DONE within the said Realme in the SAID CASE Which relates unto and agrees expresly with that forecited out of Modus tenendi Parliamentum If then all the Judges and Peares in Parliament are bound to attend the Parliament not to depart without the Kings and Houses leave under paine of Amercement and other punishment as this Statute resolves and 3. Ed. 3. 19. Fit 2. Câ—ron 161. Stamford l 3. c. 1. f. 153. Cooke Instit p. 15. 16. 17. 43 18. E. 3. Mo. 1. 2 8. and 31. H. 6. n. 46. What fine were imposed on absent Lords manifest then questionlesse they ought of right to sit in Parliament else it were the height of Injustice thus to fine them In the tenth yeare of King â— * Grafâ—oâ—â— Cron. p. ◠〈◊〉 350. 2. this King absented himselfe from his Parliament then sitting at Westminster residing at Eltham about forty dayes and refusing to come to the Parliament and yet demanding from them foure fifteenes for maintenance of his Estate and outward Wars Whereupon the whole body of the Parliament made this answer THAT VNLESSE THE KING WERE PRESENT THEY WOULD MAKE THEREIN NO ALLOWANCE Soone after they sent the Duke of Gloucester and Bishop of Ely Commissioners to the King to Eltham who declared to him among other things in the Lords and Commons behalfe how that by AN OLD ORDINANCE THEY HAVE AN ACT if the King absent himselfe 40. dayes not being sicke but of his owne minde not heeding the charge of his people nor their great paines and will not resort to the Parliament they may then lawfully returne to their Houses And now sir said they you have beene absent a longer time and yet refuse to come amongst us which is greatly to our discontent To which the King answered Well we doe consider that our owne people and Commons goe about to rise against vs wherefore we thinke wee can doe no better then to aske ayd of our Cosen the French King and rather to submit us to him then unto our owne subjects The Lords answered Sir that Counsell is not best but a way rather to bring you into danger c. By whose good perswasions the King was appeased and Promised to come to the Parliament and condiscend to their Petitions and according to his appointment he came and so the Parliament proceeded which else had dissolved by the Lords departure thence in discontent and the Kings wilfull absence Andrew Horne in his Mirrour of Justices in the raigne of King Edward the first writes That our Saxon Kings divided the Realme into 38 Counties over which they set so many Counts or Earles and though the King ought to have no Peers in his land but PARLIAMENTS all Writs and Plaints of the Moneys of the King Queene and their Children and of those especially who otherwise could not have common right of their wrongs These Companions are now called Counts after the latine word Comites For to the Estates of the Realme King Alfred assembled the COVNTS or Earles and ordained by a Perpetuall Law that twice a yeare or oftner they should assemble at London in Parliament to consult of the Government of the people of God Fleta l. 2. c. 2. p. 66. writes thus in the same Kings raigne Habet enim Rex curiam suam in concilio suo in Parliamentis suis PRAESENTIBUS Praelatis COMITIBUS BARONIBUS PROCERIBUS alijs viris peritis vbi terminatae sunt dubitationes judiciorum moris injuriis eversis nova constituuntur remedia And l. 17. c. 17. he writes thus Rex in populo regendo superiores habet Vidilicet legem perfactus est Rex Curiam suam to wit of Parliament videlicet COMITES BARONES Comites enim a Comitia dicuntur qui cum viderint Regem sine froeno Froenum sibi apponere TENENTVR ne clament sabditi Domine Jesu Christe in Chamo froeno maxillas eorum constringe Sir Thomas Smith in his Common-wealth of England * Bracton l. 2. c. 〈◊〉 l. 3. c 9. 〈◊〉 the like in the same words in Henry the 3. his reigne l. 2. c. 1. John Vowel and Ralph Hollinshed vol. 1. c. 6. p. 173. Mr. Cambden in his Britania p. 177. John Minshew in his Dictionary vuell in his Interpreter Title Parliament Powell in his Attornyes Academy and others unanimously conclude That the Parliament consisteth of the KING the LORDS SPIRITVALL and TEMPORALL and the Commons which STATES represent the body of all England which make but one assembly or Court called the Parliament and is of all other the Highest and greatest Authority and hath the most high and absolute power of the Realme And that no Parliament is or can be holden without the King and Lords Mr. Crompton in his Jurisdiction of Courts affirmes particularly of the High Court of Parliament f. 1. c. This Court is the highest Court of England in which the King himself fits in person and comes there at the beginning and end of the Parliament and AT ANY OTHER TIME WHEN HE PLEASETH ORDERING THE PARLIAMENT To this Court come ALL THE LORDS OF PARLIAMENT as well spirituall aâ— temporall and are severally summoned by the Kings writ at a certaine day and place assigned The Chancellour of England and other great officers or Judges are there likewise present together with the Knights Citizens and Burgesses who all ought to be personally present or else to be amerced and otherwise punished if they come not being summoned unlesse good cause be shewed or in case they depart without the Houses or Kings speciall license after their appearance before the Sessions ended And he resolves that the King Lords and Commons doe all joyntly make up the Parliament and that no Law nor Act of Parliament can be made to binde the subject without all their concurrent assents Sir Edward Cooke not onely in his Epistle before his ninth Report and Institutes on Littleton p. 109. 110. But likewise in his 4. Institutes published by Order of this present Parliament c. 1. p. 1. 2 c writes thus of the high Honorable Court of Parliament This Court consisteth OF THE KINGS MAJESTIE sitting there as in his royall politick capacity and of the three Estates of the Realme viz. Of the Lords Spirituall Archbishops and Bishops being in number 24. who sit there in respect of their Counties or Barronies parcell of their Bishopricks which they hold also in their politick capacity and every one of these when the Parliament is to be holden ought exdebito Justitiae to have a writ of summons The LORDS TEMPORALL Dukes Marquesses Earles
the said Earle ought to make fine and ransome at the will of the King Whereupon the said Earle most humbly thanked our Lord the King and the sayd Lords his Peers of Parliament FOR THEIR RIGHTFULL JUDGEMENT and the Commoners for their good affectious and diligence used and shewen in this behalfe And the said Earle further prayed the King that in assurance of these matters to remove all jealousies and evill suspitions that he might be sworn a new in the presence of the King the Lords and Commons in Parliament and the said Earle tooke an Oath upon the Crosier of the Archbishop of Canterbury to be a faithfull and loyall lige to our Lord the King the Prince his sonne and to the heires of his body inheritable to the Crown according to the Lawes of England Whereupon the King out of his grace pardoned him his fine and rausome for the trespas aforesaid After which num 17. the Lords spirituall and temporall humbly thanked the King sitting in his royall Throne in the white Chamber for his grace and pardon to the said Earle of his fine and ransome and likewise the Commons thanked THE LORDS SPIRITUALL and TEMPORALL FOR THE GOOD and JUST JUDGEMENT THEY HAD GIVEN AS PEERS OF PARLIAMENT TO THE SAID EARLE From this memorable record I shall observe First that though this Declaration of this Earles case was made by his Petition in the presence of the King Lords and Commons in Parliament according to the Statnte of 25. E. 3. yet the Lords only by Protestation in presence of the King and Commons claimed to be THE SOLE JUDGES OF IT as Peers of Parliament and belonging to them OF RIGHT Sâ—condly That this claime of theirs in this case was acknowledged and submitted to both by the King and Commons and thereupon the Lords only after serious consideration of the case and Statutes whereon it depended gave the definitive sentence and judgement in this case that it was neither Treason nor Felony but Trespas only c. Thirdly That the Earle thanked the King only for his grace the Lords FOR THEIR JUST JUDGEMENT and the Commons only for their good hearts and diligence having no share in the judgement though given by the Lords both in the Kings and their presence and that the Commons themselves returned speciall thanks to the Lords spirituall and temporall on Parliament for their good and just judgement Fourthly That this judgement of the Lords only was finall and conclusive both to the King and Commons who aquiesced in it All that can be objected to evade this President Object is that this Judgement was given in case of a Peer wherein the Lords only are the Judges by Magna Charta c. 29. but not of a Commoner which is the question I answer Answ that though this judgement of theirs was in case only of an Earle who was a Peer triable * See Cooke 2. Inslit on Maâ—na Charta c. 29. only by his Peers yet the King Lords in this Parliament the very same day gave Judgement of High Treason against Henry and Thomw Peircy one of them no Peer and OTHERS who were in their companie who were but Commoners and no Peers for levying warre against the King and that without the Commons as is evident by the Parliament Roll of 5. H. 4. nu 15. Et anxy mesme le vendreay AIVGGES PAR LE ROY ET SEIGNEIURS EN PARLEMENT que levier de guerre fait per les ditz Mounsieur Henry Mounsieur Thomas furont tenuz pur treason ceo si bien de eux mesmes come DE AUTERS qui fueront en lour compaigne au temps de dit lever which quite takes off this Objection Seâ— Mr. Prynnes Doome of Cowardice and Treacherie p. 2. 3. 4. 5. c. where these records are cited at large verbatim To put all out of question I shall instance in some few ancient prefidents more which are full and punctuall In the Parliament of 1. R. 2. num 38. 39. 40. The Commons prayed that all those Captaines who had rendred or lost Castles or Townes through default might be put to answer it in this Parliament and severely punished according to their deserts BY AWARD or Judgement OF THE LORDS and BARONS to eschew the evill examples they had given to other Governours of Townes and Castles Whereupon Sir Alexander de Buxton Constable of the Tower was commanded to bring BEFORE THE LORDS IN PARLIAMENT William de Weston and Lord of Gomynes both of them Commoners on Friday the 27. of November to answer such Articles as should be surmised against them on the Kings behalfe Being brought BEFORE THE LORDS in full Parliament they were severally articled against at the command of THE LORDS by Sir Richard le Scrop Knight Steward of the Kings House and their severall Articles and answers to them in writing being read before THE LORDS Which done the Constable was commanded to bring them againe before THE LORDS on Saturday next ensuing being the 20. of November on which day it was shewed unto them severally by the said Steward by THE LORDS COMMAND That THE LORDS OF THE PARLIAMENT whose names are particularly mentioned in the Roll had met together and considered of their respective answers and that IT SEEMED TO THE LORDS AFORESAID that the said William had delivered up the Castle of Outherwycke to the Kings enemies without any duresse or want of victuals contrary to his alleagiance and undertaking safely to keep it and therefore THE LORDS ABOVE NAMED SITTING IN FUL PARLIAMENT ADJVDGE you TO DEATH THAT you SHAL BE DRAWN and HANGED But because our Lord the King is not informed of the manner of the Judgement the exâ—cution of it shall be respited till the King be thereof inâ—ormed Aâ—ter which Judgemeâ—t given it was shewed to the said John Lord of Gomynes by the 〈◊〉 Steward how the said LORDS had assembled and considered of his answer and THAT â—â—â—â—â—EEMED TO THE LORD sitting in full Parliament that without duresse or default of victualls or other necessaries for the defence of the Town or Castle of Arde and without the Kings command hee had evilly delivered and â—urrendred them to the Kings Enemies by his own default against all apparance of right or reason against his undertaking safely to keep the same Wherefore THE LORDS aforesaid here in full Parliament ADJUDE YOU TO DEATH And because you are a Gentleman and a Baronet and have served the Kings Grandfather in his Warrs and are no Leigeâ—man of our Lord the King you shall be beheaded without having OTHER JUDGEMENT And because that our Lord the King is not yet informed of the manner of this Judgement the execution thereof shall be put in respite untill our Lord the King be informed thereof Loe here two expresse Judgements given in Parliament by the Lords alone without King or Commons in case of Treason even against Commoners themselves And an expresse acknowledgement of the Commons of the Lords
which they never yet read nor understood there remaines nothing but to answer some Presidents and Objections The Principall president insisted on by Lilburne Object 1. is the Protestation of the Lords in the case of * Cooke 2. Instit p. 50. Sir Simon Beresford 4. E. 3. nu 6. which I have already fully answered retorted and shall therefore here pretermit The second is Sir Edward Cookes Authority Object 2. and the presidents cited by him in his 4. Institutes p. 23. 24. of Judicature in Parliament where thus he writes It is to be knowne THAT THE LORDS IN THEIR HOUSE HAVE POWER OF JUDICATURE And the Commons in their House have power of Judicature and both Houses together have power of Judicature But the handling thereof according to the weight and worth of the matter would require a whole Treatise of it selfe and to say the truth it is best understood by reading the Judgements and Records of Parliament at large and the Journalls of the House of the Lords and the Booke of the Clerke of the House of Commons which is a Record as it is affirmed by Act of Parliament in An. 6. H. 8. c. 16. To which he addes these marginall Notes Vide Placita in Parlians Anno 33. E. 1. rot 33. Nicholas Seagrave adjudgâ— Par Praelatos COMITES BARONES ET ALIOS DE CONCILIO At the Parliament at Yorke Ap. 12. E. 3. Consideratum est per Praelatos Comites BARONES ET COMMVNITATEM ANGLIAE the Lord Audleys care At the Parliament at Westm 15. E. 2 Hugh le pier adjuge per les SEIGNIEURS COMMONS Rot. Parl. 50. E. 3. n. 34. Lord Nevils case Then he aâ—des See Rot. Claus 1 R. 2. n. 5. 8. 38. â—0 A tresage Councell le Roy Les SEIGNIORS COMMONS c. Rot. Parl. 2. H. 5. nu 1â— Errâ—ra sinned THAT THE LORDS gave Judgement WITâ—OVT PETITION OR ASâ—â—NT OF THE COMMONS Rot. Parl. 28. H. 6. nu 10. and many others in the Reigne of King H. 6. and Kin E. 4. And of later times see divers notable Judgements at the prosecution of the Commons By THE LORDS at the Parliaments â—â—â—den 18. and 21. Iac. Regis against Sir Giles Mompesson Sir Iohn Michell Viscount St. Albon Lord Chancellor of England the Earle of Middlesex Lord Treasurer of England whereby the due proceedings of Iudicature in such Caces doth appeare Then hee cites the cases of * 8. Eliz. Thomas Long * 23 Eliz. Arthur Hall * 2. Aâ—â—â—l 1. Maâ—â—â— and Muncton censured by the House of Commons only and by them fined and imprisoned without the Lords Aâ—d concludes thus If any Lord of Parliament spirituall or temporall have committed any Oppression Bribery extortion or the like the HOUSE OF COMMONS BEING THE GENERALL INQUISITORS OF THE REALME comming out of all parts thereof may examine the same and if they find by the Vote of the House the charge to be true then they TRANSMIT THE SAME TO THE LORDS WITH THE WITNESSES and PROOFES From which passages of his some ignorantly have concluded That the Lords have no power of Judicature without but only joyntly with the Commons That all Commoners ought to be judged only by the Commons not by the Lords and That the Commons have a sole power of Judicature in cases of Commoners and the Lords no power but joyntly with them or upon their preceding Petitions and impeachments neither in case of Commoners nor Peers I answer that Sir Edward Cookes words are much mistaken and rightly understood warrant no such inferences but the contrary For first he clearely confesseth in direct termes That the Lords in their House have a power of judicature even without the Commons ha he deâ—med particularly in whose and in what cases out of the Judgements Records and Journals of Parliament at large to which he refers the Reader a being best understood by reading them which warrant the Lords judging fining imprisoning and condemning to death not only of Peers but of Commoners themselves without the Commons as I have fully manifested their could no such inference have been made Secondly â—e addeâ— That the Commons in their House have a power of Judicature From whence Lilburne and others inferre That they are and ought to be the sole Judges of all Commoners and not the Lords in all cases triable in Parliament But this is a most grosse mistake Sir Edward Cooke confining this Judicature of theirs only to these three câ—ses First to matters and abuse concerning elections of Knights Citizens and Burgesses being Members of the Commons House the judgment and determination whereof the Commons alone of late times only have usually taken upon them without the Lords which he proves by Thomas Longs case 8. Eliz. and no greater antiquities of which elections the King and Lords in former times have been sole Judges for which I shall cite some memorable records worthy the Lords and â—â—mmons consideration who now take upon them to suspend ejeâ—â— Judge their own Members elections without the Kings or Lords concurrence or privity a practice not heard of in former ages and of late originall In the Parliament holden at Westminster 5. H. 4. Rot. Parl. num 38. Thomas Thorpe his case Item because that the writ of summons of Parliament returned by the Sheriffe of Roteland was not sufficiently nor duely returned as the Commons conceived the said Commons prayed our Lord THE KING and THE LORDS IN PARLIAMENT that this matter might be duly examined in Parliament and that in case their shall be default found in this matter that such a punishment might be inflicted which might become exemplary to others to offend againe in the like manner Whereupon our said Lord the King IN FULL PARLIAMENT commanded THE LORDS IN PARLIAMENT TO EXAMINE THE SAID MATTER and to doe therein AS TO THEM SHOULD SEEME BEST IN THEIR DISCRETIONS And thereupon the SAID LORDS caused to come BEFORE THEM IN PARLIAMENT as well the said Sheriffe as William One by who was returned by the said Sheriffe for one of the Knights of the said County and Thomas Thorpe who was elected in full Countie to be one of the Knights of the said Shire for the said Parliament and not returned by the said Sheriffe And the said parties being duely examined and their reasons well considered in the said Parliament IT WAS AGREED BY THE SAID LORDS that because the said Sheriffe had not made a sufficient returne of the said writ THAT HE SHALL AMEND THE SAID RETURN and THAT HE SHALL RETURN THE SAID THOMAS FOR ONE OF THE SAID KNIGHTS as he was elected in the said Countie for the Parliament and moreover that the said Sheriffe for this default SHALL BE DISCHARGED OF HIS OFFICE and COMMITTED PRISONER TO THE FLEET and that he should MAKE FINE and RANSOME AT THE KINGS PLEASURE Loe here the Lords in Parliament at the Commons request and by the Kings command examining and giving judgement in case of undue election even without the
Commons An attendent on Sir Tho. Brooke chosen one of the Knights to serve in Parliament for the County of Somerset being grievously beaten by one Iohn Savage was upon a petition of the Commons relieved against this breach of Priviledge by * Ordinance or Act of Parliament 8. H. 4. 23. 14. made by consent of the King and Lords which is printed in 5. H. 4. c. 6. And in like maner Richard Strode Burgesse of Plimton was relieved against breaches of his priviledges as a Parliament man by a speciall act of Parliament assented unto by the King and Lords upon the Commons petition An. 4. H. 8. c. 6. the Commons alone being then unable to relieve them or punish these breaches by their owne authority as of late they presume to doe without King or Lords Quo Jure having not the power of Judicature vested in them I am yet to learne being contrary to the practice and presidents of all ancient Parliaments before our present age and the Statute of 11. H. 6. c. 11. provided for this very purpose which presents another remedy out of Parliament and not in only the Commons house In the Parliament of 16. R. 2. n. 6. The Wednesday after the Parliament began Sir Philip Courtenay returned by the Sheriffe of Devon for one of the Knights for that County came before the King in full Parliament and sayd that he understood how certaine people had accused and slandered him to the King and Lords as well by Bill as by mouth of heinous matters and therefore prayed TO BE DISCHARGED OF THE SAID IMPLOYMENT untill the said accusations and complaints were tried and found true or not true and because his said prayer seemed honest TO THE KING and THE LORDS THE KING GRANTED HIM HIS REQUEST and DISCHARGED HIM IN FULL PARLIAMENT AND the Monday following at the instance and prayer of the COMMONS the KING GRANTED THAT HE SHOULD BE RESTORED and REMITTED TO HIS PLACE according to the returne of the said Sheriffe for to counsell and doe that which belonged unto his office and after because he had been good and treatable with those who had complained upon him and condescended to a good treaty he was restored in full Parliament to his good same The charge against him is expressed in the same Parliament rol num 13. 14. where two Petitions preferred against him to THE KING and LORDS IN PARLIAMENT for putting Thomas Peutyngdon forcibly out of possession of the Manor of Bygelogâ— without just cause Richard Somestre out of other lands detaining them from them he being so powerfull in the County that no poore man durst to sue him Which Petitions were referred by consent in Parliament to certaine Arbitrators to determine From which record it is evident First that Members of the Commons house may be complained and petitioned against for misdeameanours and put to answer before the King and Lords in Parliament and there fined and judged not before the Commons house and that this was the antient way of proceeding Secondly that the Commons cannot suspend or discharge any of their fellow-Commoners or Knights from sitting in Parliament but only the King and Lords in full Parliament in whom the power of Judicature rests much lesse then can they expell or eject any of their members by their owne authority without the Kings and Lords concurrence and consents Thirdly that the power of restoring and readmitting a suspended Member of the Commons house belongs not to the Commons themselves but to the King and Lords to whom the Commons themselves in this case addressed themselves by petitinn for Courtneys readmission unto his office after his submission of the complaints against him to the arbitriment of those Members to whom the King and Lords referred the same In the Parliament of 17. R. 2. n. 23. It was accorded by the King and Lords at the request of the Commons that Roger Swinerton who was endited of the death of one of their companions John de Ipstones Knight of the said Parliament for the County of Stafford slain in coming towards the said Parliament by the said Roger should not be delivered out of prison wherein he was detained for this cause by bail mainprise or any other manner untill he had made answer thereunto and should be delivered by the Law the Commons alone by their own power having no authority to make such an order even for the murther of one of their own Members without the King and Lords who made this order at their request In the Parliament of 35. Eliz. when Sir Edward Cook was Speaker of the Commons House there fell out some questions in the Commons House about the Amendment of a mistake in the return of the Burgesse of Southwark * 5. R. 2. c. 4 8. H. 4. c. 14. 11. H. 4. c. 16. H. 6 c. 4. 8. H. 6. c. 7. 32. H. 6. c. 15 Ploud tol 11. 8 c. and after long debate it was resolved that the House could not amend it but the Lord Keeper in Chancery where the return was of Record if he thought it amendable by Law and that Masten Speaker should wait upon the Lord Keeper about it which he did who advised with the Iudges concerning it as appeares by the Journall And the Statutes made for redresse of abuse of Elections of Knights and Burgesses were made by the King and Lords upon the Commons petitions as appeares by 8. H. 4. n 83 1 9. 11. H. 4. n. 54. Neither of all which statutes gives the House of Commons alone any power of Iudicature to judge the right of Elections or punish abuses committed in them but leaves them to the Lords judicature as at first and gives the party injured an action at Law against the Sheriffe and â—others for false returns Secondly Sir Edmund Cooks words extend only matters of misdemeanor of any Members of the House of Commons committed in or against the House it self of which theâ— now though not anciently are the sole judges without the Lords which he proves by Arthur Halls case Thirdly to breaches of Priviledges of the Commons House alone in striking or arresting any of the Members or their priviledged servants which he proves by Munctons case and 11. H. 6. c. 11. 5. H. 4. c. 6. the two latter proving the contrary Yet in this case of breach of priviledge even in arresting the Commons Members and servants the Commons house were noâ— anciently the sole Judges as now In the Parliament of H. 6. n. 25. 26. 27. 28. Thomas Thorp chief Baron was chosen Speaker of the Parliament and after his election and before the Parliament which was proroged he was arrested and taken in execution at the suit of the Duke of York whereupon some of the Commons were sent up by the House to the King and Lords spirituall and temporall sitting in Parliament desiring that they might enjoy all their ancient and accustomed Priviledges in being free from arrests and propounded the case of Thomas Thorp
awarded him to the custody of the Marshall and to make fine and ransome at the Kings pleasure Whereupon the Commons REQUIRED by way of petition that he might lose all his Offices and no longer be of the Kings Councell which the King granted The Commons not joyning at all with the Lords in his judgement neither could they so joyne he being a Peer And for the Lord Nevill in that Parliament num 33. he was only accused not judged by the Commons Sixthly The case of 2. H. 5. rot Parl. num 15. that Error is there assigned that the Lords gave judgement without Petition or assent of the Commons is a grosse mistake For the record only recites That Thomas Mountague Earle of Salisbury Sonne and Heire of Iohn Mountague Earle 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 Whereupon he exhibited certaine reversals of Judgements given in Parliament as making on his behalfe to the Lords consideration reversed for some errors assigned in those jadgements to wit one judgement given against Thomas heretofore Earle of Lancaster before King Edward the second at Pomfract the monday before the feast of the Annuntiation in the fifteenth yeare of his reigne and another Judgement against Roger de Mortymer late Earle of March in the Parliament of King Edward the third the Monday after the Feast of St. Katherine in the fourth yeare of his reigne at Westminster Which judgements being distinctly and openly read and fully understood Jo seemed TO THE KING and LORDS that the case of the death and execution of the said John late Earle of Sarum and of the judgement aforesaid against him given is not nor was like to the case of the executing of the said Thomas heretofore Earle of Lancaster nor to the case of the killing of Roger Earle 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 Iohn late Earle of Sarum WERE A GOOD JUST and LEGALL DECLARATION and JUDGEMENT Per quod CONSIDERATUM FUIT in praesenti Parliamento PER PRAEDICTOS DOMINOS tunc ibidem existentes DE ASSINSU dicti Domini nostri Regis quod praefatus nunc COMES Sarum NIHIL CAPIAT PER PETITIONEM aut prosecutionem suam praedictam Et ulterius TAM DOMINI SPIRITUALES QUAM TEMPORALE supradicti JUDICIUMET DECLARATIONEM praedicta versus dictum Ioannem quondam Comitem Sarum ut praemâ—ttitur habita five reddita DE ASSENSU IPSIUS DOMINI REGIS AFFIRMARUNT FORE ET ESSE BONA JUSTA ET REGALIA et ea pro hujusmodi EX ABUNDANTI DISCREVERUNT ADJUDICARUNT TUNC IBIDEM This is all that is mentioned in this Parliament Roll concerning this businesse It appeares by the Parliament Roll of 2 H. 4. num 30. That Thomas Holland Earl of Kent Iohn Holland Earle of huntingdoâ— Iohn Mountagne Earle of Sarum Thomas Lord de Dispencer and Ralph omely Knight were impeached of high treason before the King and Lords in Parliament for levying actuall Warre against the King to destroy the King and his Subjects and for this taken and beheade and hereupon ALL â—â—E LORDS TEMPORALL BEING IN PARLIAMENT BY ASSENT OF THE KING DECLARED AND ADJVDGED all the said persons TRAITORS for leavying Warre against the King and that as Traytors they should forfeit all the lands they had in fee simple the 5 day of Jannary the first yeare of the raigne of the King or after according to the Law of the Land with all their goods and chattells notwithstanding they were slaine upon the said levying of Warre without processe of Law So this Record To reverse this judgement was this Petition of Thomas Earle oâ— Sarisbury in 2. H. 5. exhibited without the errour assigned as appeares by the Parâ—iament roll but if it were that the Lords only gave Judgement without Petition or assent of the Commons as Sir Edward Cooke imagins 〈◊〉 the King and Lords who upon solemned bate over-ruled the errour abuses and Petitions and found this judgâ—ment and Declaration of 2. H. 4. given by the Lords alone with the Kings assent without the Commons TO BE GOOD JVST and LEGALL as they did ex abundâ—nti is a most undeniable proofe of the King and Lords sole right of JVDGEING and DECLARING HIGH TREASON in Parliament without the Commons as well in case of Commoners as Lords Ralph Lomely being but a Commoner and Knight though the rest were Peers and yet all joyntly adjudged Traytors and declared such only by the King and Lords without the Commons and the Judgement assured to be good by the Commons who in the Parliament of 13. H. 4. num 19. Petitioned the Iohn Lomley might be restored by act of Parliament and made capable to inherit his fathers lands thus attainted to which the King by ASSENT OF THE LORDS SPIRITVALL and TEMPORALL consented Seventhly the Parliament Roll of 28. H. 6. num 18. c. containes onely an Impeachment of High Treason against the King and other great misdemeanors against the Kingdome and wrongs to particular persons comprised by way of Articles in two distinct Bills brought up by the Commons and presented by William Tresham their Speaker to the King in the Lords House the 7. day of February against William de la Pole Duke of Suffolke to which they desired the Duke might give in his Answer by a certaine day which he did absolutly denying the Treason against the King and denying and excusing himselfe of the rest without putting himselfe upon the Tryall of his Peeres The Chiefe Iustice thereupon the 14. day of March by the Kings command asked this Question of the LORDS WHAT ADVISE THEY WOULD GIVE THE KING what is to doe futrher 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 Spirituall and Temporall then being in Towne being 42. in all into his Inner Chamber within his Palace of Westminster where when they were all assembled hee then sent for the Duke thither who comming into the Kings presence kneeled downe and continued kneeling till the Chancellour of England had delivered the Kings command to him and demanded of him what he said to the Commons Articles not having put himselfe upon his Peerage Whereupon the Duke denyed all the Articles touching the Kings Person and state of the Realme as false and scandalous And so not departing from his said Answers submitted himselfe wholly to the Kings Rule and Governance without putting himselfe upon his Peerage Where thus the Chancellour told him That as touching the great and horrible things contained in the first Bill the King holdeth him neither declared nor charged And as touching the second Bill containing misprisons which are not criminall the King by force of his submission by his owne advise and
Committees and proceedings contrary to the rules of Law and Iustice to right all grieved Petitioners especially such who have waited at least seven yeares space at your doores for reparations relieve poore starved Ireland and raise up the almost lost honor power freedome and reputation of Parliaments by acting Honorably and heroically like your selves without any feare favour hatred or selfe-ends and confining your selves the Commons House to the ancient bounds and rules of Parliamentary Iurisdiction and proceedings and to excell all others as farre in Iustice Goodnesse and publike resolutions as you do in Greatnesse and Authority Which that you may effectually performe shall be the the prayer of Your Lordships in all humble Service W. PRYNNE A PLEA For the LORDS OR A short yet full and necessary Vindication of the Judiciary and Legislative Power of the House of Peeres and the Hereditary just Right of the Lords and Barons of this Realme to sit vote and judge in the high Court of Parliament THe treasonable and destructive designe of divers dangerous Anabaptists Levellers Agitators in the Army City Countrey and of Lilburne Overton their Champions and Ring-leaders in this Seditious Plot to dethrone the King unlord the Lords new-modell the House of Commons extirpate Monarchy suppresse the House of Peers and subvert Parliaments the onely obstacles to their pretended Polarchy and Anarchy are now so legible in their many late printed Petitions Libells Pamphlets and visible in their actings and publike proceedings that it rather requires our diligence and expedition to prevent then hesitancy to doubt or dispute them they positively protesting against and denying both King and Monarchy in their a A Remonstrance of many thousand aâ—zens to their own House of Commons p. 6. the just mans Justification p. 10. Regall Tyranny Discovered A Declaration from his Excellency and the Generall Counsell of the Army Ian. 11. 1647. p. 7. Speeches c. at a Conference newly published by Walker printed verbatim out of Dolman the Iesuit his Booke condemned Pamphlets and Remonstrances with the Power and Judicature of the House of Peers and their undoubted just Hereditary right to Vote act or sit in Parliament because they are not elected by the people as Knights and Burgesses are asserting b Lilburnes Iust Man in Bonds p. 1 2. A Pearl in a Dunghill The Free-mans Freedome Vindicated An Anatomy of the Lords Tyranny his Argument and Plea before the Committee against the Lords Authority his Petition to the Commons his Letters to Henry Martin Overtons Arrow of Defiance shot into the Prerogative Bowells of the House of Lords his Petition and Appeale A Defiance against Arbitrary Vsurpation The Agreement of the People and Petitions wherein it was presented to the House of Commons An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 192. to 204. That they are no naturall issues of our Lawes but the Exorbitances and Mushromes of Prerogative the Wenns of just Government the Sons of Conquest and usurpation not of choice and election intruded upon us by power not made by the people from whom ALL POWER PLACE and OFFICE that is just in this Kingdome OUGHT TO ARISE meere arbitrary Tyrants Vsurpers an illegitimate and illegall power and Judicatory who act and Vote in our affaires but as INTRUDERS who ought of right not to judge censure or imprison any Commoner of England even for libelling against them refusing to appeare before them reviling and contemning them and their Authòrity to their faces at their very Barre as Lilburne Overton bost and print they did or breaking any of their undoubted Priviledges And to accomplish this their designe the better they endeavour by their most impudent flattery to ingage the House of Commons against the House of Peers the better to pull them downe stiling and proclaming them in their c Overtons Petition and Appeal to the High and mighty States the Knights and Burgesses in Parliament assembled Englands legall Soveraigne Power The Râ—monstrance of many thousands to their own House of Commons A printed Petition now in agitation of many Freeborne people to the only Supreme Power of this Realme the Commons in Parliament assembled The Anatomy of the Lords Tyranny An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 154. to 204. Petitions and Pamphlets The ONLY Supreme legall Judicatory of the Land who ought BY RIGHT to judge the Lords and their proceedings from whom they appeale for right and reparations against the House of Peeres affirming That in the Commons House alone resides the formall and legall Supreme Power of England who ONELY are chosen by the people and THEREFORE IN THEM ONELY is the power of binding the whole Nation by making altering or abolishing Lawes without the Kings or Lords concurrent assents to whom they now absolutely deny any Negative voice making the Commons a compleat Independent Parliament of themselves and therefore present all their Petitions and addresses to them alone without any acknowledgement or notice of the House of Peers to whom they deny any right or title to sit or vote in Parliament unlesse they will first divest themselves of their Peerage and Barons right of Session and submit to stand for the next Knights and Burgesses place in the House of Commons that shall fall void where if they may have any voice or influence the meanest Cobler Tinker Weaver or Water-man shall be elected a Knight or Burgesse sooner then the best and greatest Peer and John of Leyden preferred before King or Prince Charles Sic Sceptra ligonibus aequanti which Petitions and Pamphlets of theirs have so puffed and bladdered up many Novices and raw Parliament-men in the Commons House unacquainted with the bounds proceedings and originall Constitution of Parliaments and the Lawes and Customes of England that they begin to act vote and dispose of the Army Navy c. without and against the Lords not expecting their concurrence contrary to all former proceedings of Parliament the Lords just Priviledges and their own Solemne League and Covenant to maintaine them which may prove destructive to both Houses the Parliament Kingdome and oppressive to their Representatives the people who generally dislike it if not timely redressed and breeds such a deadly feud between the Houses as may ruine them both and the Kingdome to boot The end of these Anabaptists Levellers and Lilburnians being only to * See M. Edwards Gangraena part 3. where this is fully demonstrated destroy the Parliament by setting both Houses at variance they inveighing as bitterly against the power proceedings Ordinances Votes Power Members undue Elections and unequall Constitutions of the House of Commons as the Lords and therefore have so earnestly pressed in their d Lilburnes Letter to a friend Innocency and Truth justified and his late Letters to Cromwell Martin Sir Thomas Fairfax and others Englands Birthright Englands lamentable Slavery Another word to the wise Comparata Comparandis Liberty against Slavery The
to make such Knights Citizens and Burgesses lawfull Members of Parliament and to represent the Commons of England without any election of the people the Laws made by our Ancestors in Parliament See Littleton Fitz-Herbert Brut. Ashly Tit. VVarranty Obligat Covenant c. obliging their posterity whiles unrepealed as well as their Warranties Obligations Statutes Feofements Morgages and alienations of their Lands as the Objectors must acknowledge therefore they must of necessity grant their present sitting voting and judging too in Parliament to be lawfull because thus warranted by the Lawes and Customes of the Realme 4. If all Power in Government and right of sitting judging and making Lawes or Ordinances in Parliament be founded upon the immediate free election of all those that are to be Governed and of necessity that all those who are to be subject and they ought to be represented by those who have power in Government the Summe of f See M. Edwards his Gangraena part 3. p. 142. to 162. Lilburnes Overtons and the Levellers reasons against the Lords Iurisdiction then it will of necessity follow that the orders Votes Ordinances and Lawes made by or consented to by the Knights Citizens and Burgesses in Parliament ought not to bind any Ministers Women Children Infants Servants Strangers Freeholders Citizens Burgesses Artificers or others who cannot well or properly be represented but by persons of their owne sex degrees trades and callings and so every sex trade calling in each County and Corporation in England should send Members of their own to Parliament to represent them but only such Freeholders and Burgesses who had voices in and gave free consent to their Elections not any who have no voyces by Law or dissented from those elected and returned yea then it will necessarly follow that those Counties Cities and Burroughs whose Members have been injuriously impeached suspended driven away or thrust out of the House of Commons by the objectors and the Armies practise and violence contrary to all former presidents are absolutely free exempted and not bound by any Votes or Ordinances made or taxes imposed by the Commons House because they have no Members to represent them residing in Parliament and that those Counties and Burroughs whose Knights and Burgesses are dead or absent are no wayes obliged by any Votes Ordinances or Grants in Parliament And then how few in the Kingdome will or ought to yeeld obedience to any the Acts Ordinances or Votes of this present Parliament or to any Mayors Sheriffes Aldermen or Heads of Houses made by their Votes and Authority usually made by election heretofore or to any Iudges Justices Governours Generalls Captains or other Military Officers made by their Commission or appointment without the generality of the peoples Votes or consent especially when above halfe or three full parts of the Members were absent or driven from both Houses by the Objectors violence and menaces These Answers premised I shall now proceed to the proofe of the Lords undeniable Right and Authority to sit Vote and give Judgement in Parliament though not actually elected and called by the people as Knights and Burgesses are 1. It is evident by the Histories Republikes of most ancient and modern Kingdomes and Republikes in the world that their Princes Nobles Peers and great Officers of State have by the Originall Fundamentall Lawes and Institutions by right of their very g 31. H. 8 c. 10 See M. Seldens Titles of Honor Cassanaeus Catalogus Gloriae Mundi Alanso Lopez in Nobiliario and others who write of Nobility Cambd. Brit. of the Noâ—â—lity and Courts of Iustice in England Nobility Peerage and great Offices without any particular election of the people a just right and title to sit consult Vote enact Lawes and give Iudgement in all their Generall Assemblies of State Parliaments Senates Diets Councells as might be mainfested by particular instances in the Kingdomes Republikes Parliaments Diets and Generall Assemblies of the Iewes Egyptians Grecians Romans Persians Ethiopians Germans French Goths Vandalls Hungarians Bohemians Polonians Russians Swedes Scythians Tartars Moores Indians Spaniards Portugalls Danes Saxons Scots Irish and many others And to deny the like priviledge to our English Peers and Nobles which all Nobles Peers in all other Kingdomes Nations Republikes anciently have done and yet doe constantly enjoy without exceptions or dispute is a grosse unjury injustice and over-sight yea a great dishonor both to our Nobility and Nation Secondly By and in the very primitive constitution of our English Parliaments it was unanimously agreed by the Kingdomes and peoples generall consents that our Parliaments should be constituted and made up not of Knights and Burgisses onely elected by * E. H 6. c. 7. 10. H. 6. c. 2. 32 H. 6 c. 15. Crumpton Jurisdict p. 1. 2. 3. Cooke 4 Instit c. 1. Freeholders and Burgesses not by the generality of the vulgar people who would now claime and usurpe this right of election but likewise of the King the Supream Member by whose h Cooke Instit c. 1. n. 1. 10. Modus Tenendi Parliamentum Crompton Jurisdiction of Courts Tit. Parliament M. Seldens Tit. of Honour par 2. c. 5. writs the Parliaments were to be sommoned and by the Lords Peers Barons ecclesiasticall and civill and great Officers of the Realme who ought of right to sit vote make Lawes and give Judgement in Parliament by vertue of their Peerage Baronries and Offices without any election of the people the Commons themselves being no Parliament judicatory or Law-givers alone without the King and Lords as Modus tenendi Parliamentorum Sir Edward Cooke in his 4. Institutes ch 1. Mr. Seldens Titles of Honor part 2. ch 5. Vowell Camden Sir Thomas Smith Cowell Minshaw Crompton with others who have written of our English Parliaments assert and all our Parliament Rolls Statutes and i 33. H. 6. 16. Br. Parliam 4. 39. E 3. 7. 35. 11. H. 7 27. Br Parl. 107. 4. H. 7. 18. 7 H. 7. 14 Crumptons Iurisd f. 9. Co. 4. Institutes n 15 35. Fit f. 20. Dyer 92. Iudge Huttons Argument of Mr. Hamdens case p 32. 33. Law-bookes resolve without whose threefold concurrent assents there is or can be no Act of Parliament made Thirdly This right of theirs is confirmed by prescription and custome from the very first beginning of Parliaments in this Kingdome till this present their being no one president to be found in History or Record of any one Parliament held in this Island since it was a Kingdome without the King personally or representatively present by a Protector Custos or Regni Commissioners as he ought to be or without Lords and Peeres anciently stiled Aldermen Heretockes Senators Wisemen Nobles Princes Earles Counts Dukes c. by our Historians who make mention of their resorting to fitting voting and judging in our Parliaments Generall Assemblies and Councels under those Titles without the peoples Election long before the Conquerors time in the anciented Parliaments and Councels we read of
Viscounts and Barons who sit there by reason of their dignities which they hold by discent or creation And likewise EVERY ONE OF THESE being of full age OUGHT TO HAVE a writ of summons EX DEBITO JUSTITIAE The third estate are the Commons of the Realme whereof there bee Knights of Shires or Counties Citizens of Cities Burgesses of Burro All which are respectively by the Shires or Counties Cities Buroughs by force of the Kings writ Ex debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realme and trusted for them and are in number at this time 493. Headed And it is observed that when there is best appeareance there is the best succession in Parliament At the Parliament holden in the 7. yeare of H. 5. holden before the Duke of Bedford Guardian of England of the Lords Spirituall Temporall there appeared but 30. in all at which Parliament there was but one Act of Parliament passed and that of no great weight In An. 50. H. 3. ALL THE LORDS APPEARED IN PERSON and not one by Proxy at which Parliament as appeareth by the Parliament Roll so many excellent things were sped and done that it was called Bonum Parliamentum And the King and these three estates are the great Corporation or the body of the Kingdome doe sit in two Houses of this Court of Parliament the King is Caput Principium Finis The Parliament cannot begin but by the Royall Presence of the King either in person or representation by a Guardian of England or Commissioners both of them appointed under the great Seale of England c. And 42. E. 3. Rot. Parl. num 7. It is declared by the Lords and Commons in full Parliament upon demand made of them on the behalfe of the King That they could not assent to any thing in Parliament that tended to the disinherison of the King and his Crowne whereunto they were sworne And p. 35. he hath this speciall observation That it is oâ—served by ancient Parliament men out of Record that Parliaments have not succeeded well in five cases First when the King hath beene in diffeâ—ence with his Lords and with his Commons Secondly When any of the great Lords were at variance betweene themselves Thirdly When there was no good correspondence between the Lords and Commons Fourthly When there was no vnity between the Commons themselves in all which our present Parliament is now most unhappy and so like to miscarry and succeede very ill Fiftly When there was no preparation for the Parliament before it began every of which hee manifests by particular instances From all these and sundry z Judge Hâ—â—rons Argument of Mr. Hampdens case p. 32. 33. Daltons office of Sherriffs other Authorities it is most evident transparent That both the King himselfe and Lords ought of right to be present in Parliament and ever have been so as well as the Commons and neither of them to be excluded since they all make up but one Parliament ought of right and duty to be present at and no Lords and Commons to depart from it without speciall leave under paine of amercement and other penalties because no binding Law can be passed without their joynt consents And that the Commons alone are no more a Parliament of themselves without the King and Lords than the Common Councell of London are an intire Corporation without the Lord Major Aldermen or the Covent without the Abbot the Chapter without the Deane or the leggs or belly a perfect man without the head or neck Sixtly The ancient and constant forme of endorsing Bills in Parliament begun in the Commons House in all Parliaments since the Houses first divided 33. H. 6. 17. Brooke Parliament 4 Cromptons jurisdiction of Courts f. 8. Mr. Hackuel of the manner of passing Bills in Parliament unanswerably demonstrates the Commons of Englands acknowledgment of the Lords right to fit vote assent or disassent to Bills in Parliament viz. SOIT'BAYLE A SEIGNEURS let it be delivered or sent up to the Lords Yea the Commons constant sending up of their own Members with Messages to the Lords and receiving Messages from them and intertaining frequent conferences with them in matters where their opinions differ in which conferences the Lords usually adhere to their dissents unlesse the Commons giveth emsatisfaction and convince them and the Lords oft times convince the Commons so farre as to consent to their alterations of Bills Ordinances Votes and oft to lay them quite afide is an unquestionable argument of their Right to sit and vote in Parliament and of their Negative Voyce too All which would prove but a meer absurdity and superfluity if the Commons in all ages and now too were not convinced that the Lords had as good right to sit and vote in Parliament and a Negative and dissenting voyce as well as they never once questioned or doubted till within this yeare or two by some seditious Disciples of Lilburnes and Overtons entering who endeavoured to evade their justice on them Seventhly This just Right of the Lords is expresly and notably confirmed by all the Commons of England in the Parliament of 31. H. 8. c. 10. concerning the placing and sitting of the Lords and Great Officers of State in the Parliament House made by the Commons consent It being in vaine to make such a Law continuing still till this very day both in force and use if they had no lawfull right to fit and vote in Parliament because they are not elective as Knights and Burgesses are And by the Statute of 39. H. 6. c. 1. made at the Commons own Petition to repeale the Parliament and all proceedings of it held at Coventry the yeare before by practice of some seditious persons of purpose to destroy some of the great Nobles faithfull and Lawfull Lords and Estates meerly out of malice and greedy and unsatiable coveteousnesse to possesse themselves of their lands possessions Offices and goods whereby many great Injuries Enormities and Inconveniences well nigh to the ruine decay and universall subvertion of the Kingdome ensued The very designe of our Lilburnists Sectaries and Levellers now out of particular malice and coveteousnesse to share the Lords and all rich Commoners lands and estates between them being poore and indigent covetuous people for the most part scarce forty of them worth one groat at least before these times This apparent Right of theirs is undeniably ratified and acknowledged not only by the very words of the writs by which the Lords themselves are summoned to the Parliament but even of the writs for election of Knights and Burgesses the forme and substance whereof are ancient and can receive NO ALTERATION NOR ADDITION but by Act of Parliament as b Institutes 4 p. 10. Sir Edward Cooke resolves By this writ the Prelates Nobles and others of the Realme are summoned to the Parliament there to treat and conferre with the King
and Parl. 2. R. 2. n. 7 9. they are called the GREAT COUNCEL OF LORDS by waging of their extraordinary wisdome and abilities And therefore most fit to sit vote and judge in Parliament Secondly The Lords and great Officers of the Realme as such were ever reputed persons of greatest Valour Courage Power in regard of their great interests Estates allies and retainers and so best able to withstand and redresse all publike grievances and enchroachments of the King upon their owne and the peoples Liberties in defence whereof they have in ancient times been alwayes most ready and active to spend not only their estates but blood and lives for wherewith they have redeemed and preserved those Liberties and Freedomes we now enjoy and contend for And in this regard our ancesters in point of wisdome policy and right thought meet that they should alwayes be sommoned to and bear chief sway in our Parliaments in respect of their Peerage Power and Nobility only without the peoples election This reason of their sitting in Parliament we find expresly recorded in Bracton l. 2. c. 16. fol. 34. and in Fleta l. 1. c. 17. The King say they hath a Superiour namely God also the Law by which He is made a King likewise His Count to wit THE EARLS BARONS because they are called Counts as being the KINGS FELLOWS and he who hath a Fellow hath A MASTER And therefore if the King shal be without a bridle that is without a Law debent ei fraenum imponere THEY OUGHT TO IMPOSE A BRIDLE ON HIM c. which the Commons being persons of lesse power and interest were unable to do Andrew Horn in his Mirrour of Justice ch 1. § 2 3. renders the like reason In all the contest and Wars between K. John Hen. 3. Edw. 2. Rich. 2. concerning Magna Charta and the Liberties of the Subjects the Lords Barons were the Ring-leaders and chief Opposers of these Kings Usurpations and Encroachments on the people as all our g See Mat. Paris Matthew Westminster Walsingham Huntingdon Holings head Polythronicon Coxton Grimsâ—on Stow Speed Trussell Baker Martin Daniel How and the Soveraign Power of Parliaments Kingdomes part 1 2. 3. 10 R. 2. c. 1 2. 11 R. 2. c. 1. to 7. 21 R. 4. c. 7. to 13. â— H. 4. c. 2. for proof hereof Histories and Records relate whence they stile the Wars in their times THE BARONS WARS and before this the Nobles were the principall Actors in resisting the Tyranny of K. Sigebert and K. Bernard and disthroning them for their misdemeanors as is clear by Mat. Westminster in his Flores Historiarum an 756. 758. To give some brief hints to clear this truth An. Dom. 1214. In the 16. year of h Mat. Paris Hist Angl. p. 233. to 282. Daniel p. 140. to 144. Speed p. 558. to 567. K. John a Parliament held at Pauls July 16. the Charter of Liberties granted to the people by K. Hen. 1. being read and confirmed THE BARONS swore in the Arch-bishops presence that if need were they would spend thier blood And afterwards at St. Edmonds Bury the BARONS swore upon the High Altar That if K. John refused to confirm and restore to them those Liberties the Rights of the Kingdom they would make War upon Him and withdraw themselves from His allegiance till he had ratified them all by His Charter under Seal Which they accordingly performed Tota Angliae Nobilitas in unum collecta all the NOBILITY OF ENGLAND COLLECTED INTO ONE appeared in this defence of their own and the peoples Rights and Liberties against the King whereupon it was afterwards enacted That there should be 25 BARONS chosen by the LORDS not Commons who should to their utmost power cause the Great Charter confirmed by K. John to be duly observed That if either the King or His Justicier should transgresse the same or offend in any one Article 4. of the said BARONS should immediately repaire to Him and require redresse of the same without delay which if not done within forty daies after that then the said 4. BARONS and the rest should distrain and seize upon the Kings Castles Lands and Goods till amends was made according to their arbitration Such confidence and power was then reposed in the BARONS alone i Hist Angl. p. 233. Mat. Paris speaking of the death of Geoffry Fitz-Peeter one of the greatest Peers of that age writes thus of him This year an 1214. Geoffry Fitz-Peeter Justiciary of all England a man of great power and authority TO THE GREATEST DETRIMENT OF THE KINGDOM ended his daies the 2 day of Octob. ERAT autem FIRMISSIMA REGNI COLVMNA for he was the most firm pillar of the Kingdom as being a Nobleman expert in the Laws furnished with treasures rents and all sort of goods and confederated to all the great men of England by blood or friendship whence the King without love did fear him above all men for he governed the raynes of the Kingdom Whereupon after his death England was become like a ship in a storm without an helm The beginning of which tempest was the death of Herbert Arch-bishop of Canterbury a magnificent and faithfull man neither could England breath again after the death of these two When K. John heard of Fitz-Peeters death turning to those who sate about him He said By Gods feet now am I first King and Lord of England He had therefore from thenceforth more free power to break His Oaths and Covenants which He had made with the said Geoffry for the peoples Liberty and Kingdoms peace Such Pillars and Staies are great and stout Peers to a Kingdom Curb to tyrannicall Kings and therefore of meeâ— Right ought to have a place and voice in Parliaments for the very Kingdoms safety and welfare without the peoples election In the 43 year of K. Hen. 3. his reign k Mat. Paris p. 952. 953. Speed p. 636. Daniel p. 178. The Barons of England entred into a solemn Oath of Association upon the Evangelist to be faithful and diligent to reform the Kingdom of England hitherto by the counsel of wicked persons overmuch disordered and eff ectually to expel the Rebels and disturbers of the same which Oath they made Richard Earl of Cornwall to take as wel as others In these Barons wars for the Subjects Liberties many hundred Lords and Barons spent both their blood lives and estates and among others Simon Mulford Earl of Leicester the greatest Pillar of the Barons slain in the batail of Eusham of whoâ— l In his Continuation of Mat. Paris p. 968. Daniel p. 178. Râ—shing â—r thus writes Thus this magnificent Earl Simon ended his daies who not only bestowed his estate but his person and life also for relief of oppression of the poor for the asserting of Justice and the Right of the Realm In the 3 4 14 15. of K. Edw. 2. his raign the Barons were the chief Sticklers against Gaveston and the
E. 3. nu 22. 23 E. 3. nu 7. to 17. The sole question men will be Whether the House of Peers have any lawfull power of Judicature in or â—ver the causes and Persons of the Commoners of England in matter civill or criminall so farre as to judge their Causes or censure fine imprison or condemne their persons in any case without the Commons This the ignorant sottish sectaries Levellers seduced by their blinde guides Lilburne and Overton peremptorily deny without the least shadow of truth or reason the contrary whereof I shall infallibly make good to their perpetuall shame and refutation First 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 Realmne under the King and that they and the Barons were the proper Judges of the common peoples Causes in the Tournes County-Courts County Barons even by vertue of their Dignities and Offices as our Sheriffes have now in which Courts they did instruct the people in the Lawes of the Land and administer Justice to them in all ordinary and criminall causes For proof whereof you may peruse at leasure M. Seldens Titles of Honour Part 2. c. 5. Sect. 5. Sir Edw. Cookes Institutes on Magna Charta c. 35. His 4. Institutes c. 53 Spelmanni Glossarium Tit. Comites M. Lamberts Archaion Hornes Mirrour of Justices c. 1. Sect. 2 3. If then they were Judges of the Commons and People in the Country by reason of their Honours Dignities even in ancientest times in ordinary Causes there was great right and reason too they should be so their Judges also in all their extraordinary causes as well criminall as civill Secondly The Lords Peers and great Officers of State in respect of their education learning and experience in all proceedings of Justice and State affaires are better able and more fit to be Judges of Parl then ordinary Citizens and Burgesses for the most part especially if chosen out of the Cities and Burroughes themselves for which they serve as anciently they were and still ought to be by the Statutes of 1 H. †7 R. 2. Parl. 2. n. 19 20. 17 R. 2. n. 17. 5. c. 1. 32 H. 6. c. 15. and the very purport of the writs for their election at the very day de qualibet Civitare Com. predict DVOS CIVES de quolibet Burgâ— DVOS BVRGENSES imports who have better knowledge and skill in Marchandice their severall Trades then in matters of Judicature Law or State Therefore the Right of Judicature was thought meet even by the Commons themselves to be lodged vested in the House of Peeres who are the 〈◊〉 and fittest of the two rather then in the Commons House as I shall prove anon Thirdly since the division of the Houses one from another which is very ancient and not certainly known when first made the House of Peers hath been ever furnished with the ablest Temporall and Spirituall persons for their Assistants in judgment and advice to wit all the Judges Å¿ See Modus tenendi Parliamentum Vowell Cowell Crompton Sir Thomas Smith Coke and others 17 E. 3. n. 23. 21 E. 3. n. 7. 7. R. 2. n. 30 31. 9 R. 2 n. 13. 2 R. 2. part 2. n. 27. 31 H. 6. n. 26 27 28. 28 H. 6. n. 6. of the Realm Barons of the Exâ—hequer of the Coyse the Kings learned Councell the Masters of the Chancery that are Courtiers or Lawyers the Master of the Rolls the Principall Secretaries of State and other eminent persons for parts and learning and the Procuratores Cleri all which are called by Writ to assist and give their attendance in the upper House of Parliament where they have no voices and are to give their counsel and advice only to the Lords when they require their assistance For proof whereof you may consult the Statutes of 31 H. 8. c. 10 Register 261. Fitz. Nat Bre 229. a. b. M. Seldens Titles of Honor p. 2. c. 5. Sir Edw. Cokes 4. Instit p. 4 5 6 44 45 46. and the Parl Rolls and Authorities there cited by them seconded by our present experience Now the House of Peers being thus assisted with the advice of all the Iudges of England the Kings learned Councell and other ablest to advise them in all Civill or Ecclesiasticall matters were and are in this regard thought fittest by our Ancestors and the Commons themselves in Parl 1 H. 4. n. 79 who have no such assistants to have the principall and sole power of Judicature in all or most civill or criminall causes between Commoner and Commoner that proper for the Parliaments Iudicature by way of relief redresse or censure Fourthly there can be no judgement given in any of the Kings Courts Sâ—e The Preeholders Grand Inquest p. 2 5. but when the King is personally or representatively present sitting upon the Tribunall and where the proceedings are CORAM REGE But the King sits personally and representatively present in the House of Peers not in the House of CoÌ„mons where nothing is said to be done Coram Rege And therefore in the end of most ancient Parl Rolls we find the Title Placita Corona CORAM DOMINO REGE IN PARLIAMENTO SVO c. Therefore the House of Peers only not the Commons are the true and proper judicatory whence the King the supream Judge sits usually in Person Fiftly there can be no legall triall or Judgement given in Parl without examination of witnesses upon oath as in all other Courts of justice But the House of Peers alone have power to give and examine witnesses upon * 7 R. 2. par 2â— n. 16. Oath and the whole House of Commons no such power but to take Informations without Oath which they nor their Committees cannot administer unlesse by Order and Commission from the Lords Therefore the power of judicature in Parl is inherent only in the House of Poers and not in the Commons House Sixtly it is a rule both of Law and common Justice * Littleton sect 212. Coke ibid. 4 E. 3 7. 2 H. 6. 10. 14 H. 4. 8. 2 R. 2. 29. 5 H. 7. 8. Bur. Challeng 23 42 71 that no man be an informer prosecutor and judge too of the persons prosecuted and informed against it being against all grounds of justice But the CoÌ„mons in all ancient and in this present Parl have been informers and prosecutors in nature of a t Cokes 4. Instit p. 24. Grand Inquest to which some compare them summoned from all parts of the Kingdom to present publick grievances and Delinquents to the King and Peers for their redresse witness their many impeachments accusations and complaints sent up and prosecuted by them in * 50 E. 3. n. 5. to 37. 21 R. 2. n. 14 15 16. 28 H. 6. n. 14 to 52 31 H. 6. n. 45 64. 38 H. 6. n. 38. former parl
this to the Lords not only against Peers but Commoners of which there are hundreds of presidents this very Parl Therefore the House of Lords hath the proper right of judicatory vested in them not the Commons who are rather informers prosecutors and Grand-Jury men to inform and impeach then Judges to hear censure or determine Seventhly those who are proper Judges in any Court of justice whiles the cause is judging sit in their * 25 E. 3. c. 2. 20 R 2. c. 3. 6 R. 2. c. 5. 14 H. 6. c. 3. â— R. 2. c. 3. 2 R. 2. c. 10. Robes covered on the bench not stand bare at the bar swear examine the witnesses in the cause not produce them or manage the evidence when the cause is fully heard argue and debate the businesse between themselves and give the definitive sentence But in cases that are to be tried judged in Parl the Lords only sit covered and in their Robes upon the Bench but the Comons stand bare at the Bar the Lords only swear and examine the witnesses and judge of their testimony the Commons only u Coke 4. Instit p. 24. produce the witnesses or presse and manage the evidence and when the businesse is fully heard the Lords only debate the businesse among themselves and give the finall Sentence and Judgment without the CoÌ„mons and that both in cases of Comoners and Peers Therefore the Lords or house of Peers are sole Judges in Parl not the CoÌ„mons And that they are and alwaies have been so de facto unlesse by way of Bil of Attainder or in such extraordinary cases when their concurrence hath been desired I shall prove by most clear and infallible evidence To pretermit the * Mr. Seldens Titles of Honor part 7. c. 5 p. 632 633 705 706. judgment of the Earls Barons in Parl in the case of Earl Goodwin for the murther of Alfred in K. Edw. Conf. reign before the Conquest and the judgment of the Barons the Lords in Parl against Tho Becket Arch-b of Can. in K. Hen. 2. raign cited by M. Selden of which you may chuse the same with the punctuall authority of Andr. Horne in his Mirror of Justices c. 1. § 2. forecited First in Pleas of the Crown and other Common Pleas plainly â—â—able in Parl as well between CoÌ„moners as Peers the Pleas have been exhibited heard and judgement given upon them by the King and Lords joyntly or the King alone by which the Lords assent or by the Lords themselves without the CoÌ„mons as is evident by the Parli Rolls and Pleas in Parl in K. Ed. 1. 2. 3. 4. Ric. 2. Hen. 4. 5. 6. where there are hundreds of instances to confirm it some of them printed in Sir Edw. Cokes 3 Instit c. 1 2. and M. St Johns Argument in Law upon the Bill of Attainder against the Earl of Strafford Secondly in all * 18 E. 1. rot Parl. t. 4 E. 3. n. 13. 21 E. 3. n. 65. 28 E. 3. n. 11 12. 50 E. 3. n. 48. 1 R. 2. n. 28 29 104. 2 R. 2. n. 36 37 31 32 33. Parl. 2. n. 21 to 27. 3 R. 2. n. 19 20 21. 7 R. 2. Parl. 2. n. 23 24. 8 R. 2. n. 14 15. 13 R. 2. n. 15 16. 15 R. 2. 22 23. 17 R. 2. n. 13 14 15 19. 18 R. 2. n. 11 10 16. 21 R. 2. n. 25 55 to 66. 1 H. 4. n. 91. 2 H. 4 n. 47 48. 5 H. 4. n. 40. 6 H. 4. n. 31 61 62. 3 H. 5. n. 19. 10 H. 6. n. 51. Writs of Error brought in Parl by Peers or CoÌ„moners to reverse any erroneous judgements touching their reall or personall Estates lives or attainders The KING LORDS ONLY ARE JUDGES and the proceedings upon such Writs are ONLY BEFORE THE LORDS IN THE UPPER House secundum Legem coâ—suetudinem Parliamenti So Sr Ed. Coke in direct terms in his 4. Instit p. 21 22 23. where he produceth divers presidents of such writs of Error out of the Parl Rolls and present experience manifests as much in all the the writs of Error brought this Parl adjudged and determined by the King and Lords alone without the privity of interposition of the CoÌ„mons A truth so clear that Lilburne himself in his Argument against the Lords Jurisidiction confesseth it and the Parl Rolls quoted in the Margine with sundry others resolve past all dispute If then the Lords be the sole Judges in all writs of Error concerning the goods estates free-holds inheritances lives and attainders of the Commoners of England notwithstanding the statute of Magna Charta c. 29. No Free-man shall be taken or imprisoned or disseised of his Free-holder Liberties of Free-customes nor outlawed nor exiled neither will we passe upon him nor condemn him but by THE LAWFUL IUDGMENT OF HIS PEERS c. the grand and principall objection against their Iudicature then by the self-same reason they are and may lawfully proceed against them in all other civill or criminall causes especially breaches of ther own priviledges of which themselves are the sole and only Iudges the cases of Lilburne and Overton properly triable in Parliament Thirdly in all Petitions and complaints against CoÌ„moners for redresse of grievances the King and Lords are the sole and proper Tuns and Judges not the CoÌ„moners as appears by all the Parl Rolls in former times wherein we find in the beginning of every Parl some Assistants of the Lords house appointed by them to be receivers of the Petitions of England Ireland Wales Scotland others appointed receivers of the Petitions of Gascoyne other parts beyond the Seas and the Isles of Jersy and Gernsey c. And some Lords appointed tryers of those Petitions who had power given them to call the L d Chancellor Treasurer Steward Chamberlain the Judges Kings Serjeants and others to their assistance prescribing also by what day the Petitions should all be exhibited and the place where they should be examined All particular persons usually presenting all their grievances and petitions immediately to the King Lords without any addresse to the CoÌ„mons by Petitions as now of late there being no Petitions of record in the Parl Rolls addressed immediately and originally to the Commons that I can find And towards the end of the Parl Rolls there is this Title usually The Petitions of the CoÌ„moners containing all Petitions of the CoÌ„mons house for redresse of publick or particular injuries and grievances presented to the King in the Lords house and answered by the King alone with the consent of the Prelats Counts Barons with which answers the Commons rested satisfied whether granted or denied as ofttimes they were Of which you may read somthing in Sr E. Cokes 4. Instit p. 16. more in the Records themselves Fourthly in all criminal causes in Parl by way of accusation impeachment or indictment the King Lords were the proper Judges as is evident by Placita Coronae coram
Domino Rege in Parliamente sue at the end of each Parliam Roll wherein the King and Lords or only the King and Lords alone generally gave Iudgement of imprisonment fine banishment and death it self even against CoÌ„moners themselves without the Commons the thing now principally controverted and denied for proof whereof I shall cite some few punctuall presidents and records in stead of many which might be insisted on In the famous Parl held at Claredon x Mat. Paris p. 6 97. M. Seldens Titles of Honor part 2. c 5 p. 703. 705 under K. Hen. 2. 〈◊〉 D. 1164. there was a recognition made of all the ancient Customs of the Realm which all the Prelats Abbots Earls Barons and Nobles swore firmly to observe to the King and his Successors whereof this was one That the Arch-b Bishops and other Clergy men who held of the King in Capite by Barony Sicut caeteri Barones debent interesse JVDCIIS CVRIAE REGIS CVM BARONIBVS * Petrus Blesâ—sis De Instit Episcopi Bibl Patrum tom 12. par 2. p. 447 quousque perveniatur AD DIMINVTIONEM MEMBRORVM VEL AD MORTEM which proves the power and right of Iudicature even in those times and long before to be setled in the Barons as well in Parliament as in the Sheriffs Tourne and that in case of Commoners as Peers In the Parliament of 4. E. 3. num 1. 2. 3. 4. 5. Roger Mortimer Earle of March a Peer Sir Simon Bereford Knight of Councell and assistant to the said Earle John Mautravers Bose de Bayous and Iohn Deverall for being guilty of the death of Edward Earle of Kent Thomas Gournay VVilliam of Ocle for murthering King Edward the second after his deposition were attainted and condemned of High treason and some of them then in cuâ—â—odie accordingly executed by Iudgement of the Lords and Peeres alone who AS JUDGES OF THE LAW by the Kings consent gave judgement of death against them as the Parliament Rolls more largely relate It is true indeed that after these Judgements given the LORDS the same Parliament num 6. entred this Protestation * See Cooke 2. Instit p. 50. That alboit the Lords and Peers of the Realme AS JUDGES OF THE PARLIAMENT in the presence of the King had taken upon them to give Judgement of such who were NO PEERS OF THE REALM that he eafter NO PEERS should be compelled to give Judgement ON ANY OTHERS WHO WERE NOT THEIR PEERS according to the Law From this Protestation of the Lord which Lilburne principally insists on hee and * Cooke 2. Instit p. 50. some others conolude that the Peers in Parliament have no right at all to imprison fine judge or passe sentence of death against any Commoner for any offence no not for breach of their own Priviledges but only the Commons To which objection I answer First that this is no Act of Parliament as Sir Edwards Cooke mistakes but a bare Protestation of the Lords without Kings or Commonâ— assent and that neither the House of Commons nor the Commoners then attainted of Treason and judged to death by the Lords ever demurred or excepted against their Jurisdiction as Lilburne and Overton doe but acknowledged and submitted to it Secondly That in this very Protestation the Lords professe and justifie their right of BEING JVDGES in Parliament without admitting or acknowledging any joynt or sole right of Judicature with them in Parliament in the Commons Thirdly That this Protestation was meerly voluntary not in derogation but preservation of their own Honour and Peerage and the Parliaments too and the substance of it no more then this That the Lords in Parliament should not bee 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 against such who were no Peers who in such caseâ— * Magn. Ch. c. 29. 25. E. 3. c. 2. 4. 28. E. 3. c. 3. 37. E. 3. c. 8. 42. E. 3. c. 3. Cooke 2. Instit p. 50 51. by the Law might and ought to be tried in the Kings Courts at VVestminster or before the Iustices of Oyer and Terminer by a Iury of their equalls but onely in such cases which could not well be tried else-where and were proper for their Judgement in Parliament This is the whole summe and sence of their protestation To argue therefore from hence That they cannot passe sentence or judgement against any Commoners in any case proper for their Judicature in Parliament because they protested only against being COMPELLED to gâ—ve Judgement against such as were no Peers in cases triable else-where and not proper for their tribunall as the Objectors hence conclude is quite to mistake their meaning and to speak rather non-sence then reason or Law Fourthly This Protestation was made only against the Lords giving sentence in Felony and Treason and that in the Kings own presence in Parliament who usually pronounced the Judgement himself with the Lords assent and did not charge the Lords to pronounce it as here hee did not against sentencing fining and imprisoning any Commoner for rayling and Lybelling against their Persons Jurisdiction and proceedings refusing to answer and contemning their Authority to their faces at the Barre and appealing from their Judicature in case of breach of Priviledge of which themselves alone and no others are or can be Judges the case of Lilburne 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 injudiciousnesse and folly rather then a justification of their Libellous Invectives against the Lords injustice 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 To prove this by some instances In the Parliament of 1. H. 4. Placita Coronae num 11. to 17. Iohn Hall being in custody of the Marshall of England and brought by him before the Lords in Parliament and there charged by him by VValter Clâ—pton Lord chiefe Justice by the Kings command with having a hand in the murther of the Duke of Glocester who was smothered to death with a featherbed at Calayes by King Richard the seconds command the whole relation whereof he confessed at large and put in writing before James Billing ford Clerk of the Crown which was read before the Lords upon reading whereof the King and ALL THE TEMPORALL LORDS IN PARLIAMâ—NT resolved that the said Iohn Hall by his own confession deserved to have as hard a death as they could adjudge him to because the Duke of Glocester was so high a Person and thereupon TOVTE LES SEIGNEIURS TEMPORELZ per assent du ROY ADJVGGERâ—Nâ— all the temporall Lords by assent of the King AJVDGED that the said Joh. Hall should be drawn from Tower
hill unto the Gallows at Tiburn there kenelled his bowels laid before him and after he should be hanged beheaded and quartered and his head sent to Calayes where the murther was committed and his quarters sent to other places where the King should please and thereupon command was given to the Marshall of England to make execution accordingly and it was so done the same day Lo here the Lords in Parliament gâ—ve judgement against a Commoner in case of a murther done at Calayes and so not triable at the Kings Bench but in Parliament and passe a judgement of High treason on him for murthering of a great Peere only And which is most remarkable all the Commons In this very Parliaments of 1 H. 4. nu 70. Nov 3. made their Protestation and further remonstrated to the King Nota. Com LES JVGGEMENTS DV PARLEMENT APEIRTEIGNENT SOVLEMENT AV ROY ET AS SEIGNEIVRS ET NIENT AS COMMVNES how the judgement of the Parl. appertained ONLY TO THE KING and TO THE LORDS and NOT VNTO THE COMMONS except in case it should please the King OF HIS SPECIALL GRACE to shew unto them the said JVDGEMENTS purcase de eux que null record soit fait in Parlement encoutreles ditz Communes quill soit ou serront parties ascunes juggements donez ouadoues en Apres in Parlement Whereunto it was answered by the Archbish of Canterbury by the Kings command how the said Commoners are petitioners and demanders and that THE KING THE LORDS de tont temps ont eves et aueront DE DROIT LES JVGGEMENT EN PARLEMENT en manere come me me les communes ount monstres HAVE ALVVAYES HAD AND SHALL HAVE OF RIGHT THE JVDGEMENTS IN PARLIAMENT in manner as the Commons themselves have declared except in making Statutes or in making Grants and Subsidies or such things for the common profit of the Realm wherein the King will have especially their advice and assent and that this order of proceeding shall be held and kept IN ALL TIMES TO COME By which record in Parliament it is apparent by the House of Commons own confession First that the Judgements in Parliament even in cases of Commoners appertain ONLY TO THE KING and LORDS in the affirmative Secondly that they appertain NOT TO THE COMMONS in the negative Thirdly that the King and LORDS HAVE ALWAYES HAD and ENJOYED THE RIGHT of Judgements in Parliament Fourthly that they should alwayes hold and enjoy this Right IN ALL TIMES TO COME Fifthly that the Commons speciall advise and assent was and is required by the King in Parliament only in making of Statutes Grants and Subsidies and such like things for the common profit of the Realm So full and punctuall a Parliamentary decision of the present controversie as is uncapable of any answer or evasion In the Parliament Roll of 17. y See Cook 3. Instit c. 2. p. 22. R. 2. num 20. 21. John Duke of Gayen and of Lancaster Steward of England and Thomas Duke of Glocester Constable of England the Kings Uncles complained to the King that Thomas Talbot Knight a Commoner and no Peere with other his adherents conspired the death of the said Duke in divers parts of Cheshire as the same was confessed and well known and prayed that the Parliament might judge of the faulâ— to wit whether it were treason according to the clause of the Statute of 25 E. 3. c. 2. It is accorded that if any other case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without any going to judgement of the Treason till the cause be shewed and declared before the King and His Parliament whether it ought to be judged Treason or Felony whereupon the KING and THE LORDS IN THE PARLIAMENâ— without the Commons though in case of a Commoner ADJVDGED THE SAME FACT TO BE OPEN and HIGH TREASON and thereupon they award two writs the one to the Sheriffes of Darby to take the body of the said Sir Thomas retornable in the Kings Bench in the moneth of Easter then next following and open Proclamation was made in Westminster Hall upon the Sheriffes return and the next coming in of the said Sir Thomas that the same Thomas SHOVLD BE CONVICTED OF TREASON and incurre the losse and pain of the same and that all such as should receive him after the same Proclamation should incurre the same losse and paine Sir z 3. Instit p. 22. Edward Cooke relating this Judgement addes his own opinion at the end That this judgement wanting the assent of the Commons was no Declaration of Treason within the Act of 25. E. â— because it was not by the King and his Parliament according to this Act but by the King and Lords ONLY But the record of Parliament and the Judges and Commons then admitted it to be good and processe issued out and judgement was given accordingly the parties concerned taking no such exceptions to it See 21. R. 2. n. 15. 16. So that this Record is a pregnant evidence That the King and Lords are the sole Judges in Parliament in the case of Commoners even in declaring and judging what is or what is not treason within the Statute of 25. E. 3. because the Commons are no Iudges in Parliament and so cannot Iudge or declare unles in a legislative way by Act of Parliament what is Treason or Pelony but the King and Lords alone To put this out of question I shall cite one notable record more to this purpose a Cooke 3. Instit p. 22. c. 1. p. 10. In the Parliament of 5. H. 4. 11. 12. on the 8. of February the Earle 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 alegiance and especially for gather of power and giving of Liveries for which he put himselfe upon the Kings grace and prayed pardon the rather for that upon the Kings Letters he yielded himselfe and came to the King at Yorke whereas he might have kept himselfe away Which Petition by the Kings command was delivered to the Justices to be examined and to have their counsell and advice therein Whereupon the LORDS made a Protestation que le Juggement appertient aeux 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 a queux tells â—uggementz apperteignent DE DROIT TO WHOM SUCH JUDGEMENT 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. yeare of King Edward the Kings Grand-father that now is concerning the Declaration of treason as the Statutes of Liveries made in this Kings raigne ADJUDGED that that which was done by the said Earle contained within his Petition was neither Treason nor Felony but Trespas for which
thâ—â—r Speaker to them desiring his inlargement whereupon the said Lords spirituall and temporall not intending to hurt or impeach the priviledge of the Commons but equally after the Courts of law to administer Justice and to have knowledge what the Law will weigh in that behalf declared to the Justices the premises and asked of them whether the said Thomas ought to be delivered from prison by force and vertue of the said priviledge of Parliament or not To the which question the chief Justices in the name of all the Justices aforesaid communication and mature deliberation had among them answered and said that they ought not to answer to that question for it hath not been used aforetime that the Iustices should in any wise determine the priviledge of this high Court of Parliam for it is so high and mighty in his nature that it may make that law which is not and that that is law it may make no law and the determination and knowledge of that priviledge belongeth to the Lords of the Parliament and not to the Iustices but as for declaration of proceedings in the lower Courts in such cases as writs of Supersedeas of Priviledge of Parliament be brought and delivered the said chief Iustice said that there be many and divers Supersedeas of priviledges of Parliament brought into the Courts but there is no generall Supersedeas â—rought to surâ—eâ—se all Processes for if there should be it should seem that this High Court of Parliament that ministreth all Justice and equitity should let the processe of the common Lawes and so it should put the party plainant without remedy for so much as * Vpon this ground 1. R. 2. n. 20. 87. 114. 2. R. 2. n. 8. 49. 5. R. 2. n. 44. 13 R. 2. n. 10. 30. 33. 15. R. 2. n. 9. 17. R. 2. n. 10 We find the Commons and Parliament very zealous to maintain the Common Law and referring causes and petitions to it when proper for it and unproper for the Parliament actions at Common Law be not determined in this High Court of Parliament And if any Person that is a Member of this High Court of Parliament be arrested in such cases as be not for Treason or Felony or surety of the Peace or for condemnation before the Parliament it is used that all such persons should be released of all such arrests and make an Attorney so that they may have the freedome and Liberty freely to attend upon the Parliament After which answer and Declaration it was throughly agreed assentted and concluded by the Lords spirituall and temporall that the said Thomas according to the law should remain still in Prison for the causes abovesaid the priviledge of the Parliament or that the same Sir Thomas was Speaker of the Parliament notwithstanding And that the premises should be opened and declared to them that were comâ—â— for the Commons of this land and they should be charged and commanded in the Kings name that they with all goodly hast and speed proceed to the election of another Speaker The which premises for as much as they were matters of Law by the commandements of the Lords were opened and declared to the Commons by the mouth of Walter Mâ—yle one of the Kings Sergeants at Law in the presence of the Bishop of Ely accompanied with other Lords in notable number and there it was commanded and charged to the said Commons by the said Bishop of Ely in the Kings name that they should proceed to the election of another Speaker with all goodly hast and speed so that the matters for which the King called this his Parliament might be proceeded in and this Parliament took good and effectuall conclusion and end VVhereupon thâ— Commons accordingly elected Thomas Charlton Knight for their Speaker the next day and acquainted the Lords therewith and desired the Kings approbation of their choice which was accorded unto by the King In the Parliament of 39. H. 6. n. 9. Walter Clerke one of the Burgesses of Parliament for Chippenham was arrested and imprisoned in the Fleet for divers debts to the King and others upon a Capias Uâ—lagatâ—m whereupon the Commons complained thereof to the King and Lords and desired his release and tendred them an Act of Parliament ready drawn for that purpose to which Petition and Biâ—â— of theirs the King by the ASSENT OF THE LORDS SPIRITUALL and TEMPORALL assented And thereupon hee was freed In like maner Richard Chedder In the Parliament of 35. Eliz. Thomas Fitz-Herbert of Staffordshire was elected a Burgesse of Parliament and two houres after before the Indenture returned the Sheriffe tooke him in upon a Capiâ—â— Utlagatum Whereupon he petitioned the House that he might have a Writ of Priviledge and be enlarged After many dayes debate and Argument of this case in the House by sundry Lawyers and Sir Edward Cooke then Speaker it was agreed That no Writ of Priviledge could in this case be returned into the House of Commons being but a Member of Parliament and no Court of Record but only into the Chancery or House of Peers And that this being a point of Law it was meet the Iudges should be advised with and determine it not the House And at last he was outed of his Priviledge by the Houses resolution In 28. H. 8. Dyer 60. The case of Trewinnerd a Commoner in point of Priviledge of Parliament concerning an arrest was argued and debated before the Judges in the Kings Bench And so was Chedders case in 8. H. 4. 12. 13. So as the Commons only are not the sole Judges of such Priviledge as many now concerve but the House of Peers and Kings Councell and Judges as well as they In these three cases only and no other that I find Sir Edward Cooke admits the Commons to be sole Iudges now though not anciently without the Lords Therefore to extend it generally to all or any other cases of Commoners but these is to pervert his words and extend them farre beyond his meaning Now Lilburnes Overtons Cases are none of these but directly under the Lords sole Iudicature because infringements of their Priviledges of which the Lords only are the Iudges as the Commons pretend they are of their Priviledges as his following passages manifest Thirdly hee addes that both Houses together have power of Indicature but determines not in what cases nor in what way of Judicature which hath caused the Objectâ—rs mistake But the Judgements Records and Iournals of Parliament to which he refers and the cases he cites in the Margin will affoyle this doubt and cleare his meaning which is this First That in attainders and judgements of High Treason Felony or other Misdemeaners in Parliament where the proceedings are not by way of tryall and ordinary Judicature but by * See 31. H 6. n. 45. 64. 38. H. 6. n. 9. to 36. Bill or Act of Parliament there both Houses together and the King too joyntly with them have the power of
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 comming hee should absent himselfe out of the Kingdome of England and all other his Dominions in France or elsewhere for five yeares space and that hee nor no man for him should shew or waite 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 Peamont in behalfe of the said LORDS both Spirituall and Temporall and BY THEIR ADVICE ASSENT AND DESIRE said and declared to the Kings Highnesse that this that so was decreed and done by his Excellencie concerning the person of the said Duke PROCEEDED NOT BY THâ—IR ADVICE AND COVNSELS but was done by the Kings owne demeanour 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 SHOVLD NOT BE NOR TVRNE IN PREJVDICE NOR DEROGATION OF THEM THEIR HEYRS NE OF THEIR SVCCESSOVRS IN TIME COMMING but that they may HAVE AND INJOY THEIR LIBERTY AS THEY OR ANY OF THEIR ANCESTORS PREDECESSORS HAD AND ENIOYED BEFORE THIS TIME This is the sum of this large record which makes nothing to the purpose for which it is cited that it is errour when both Houses joyne not in â—udgement For first here is nothing but an impeachment onely by the Commons of a Peere who ought to be tryed judged by his Peerage 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 owne Chamber in presence of the Lords Thirdly the Lords entred a speciall protestation against it as not made by their advice or consent Fourthly they enâ—er a speciall claime in the Parliament Roll for the preservation of their Right and Freedome of Peerage for hereafter both of being tryed and judged onely by their Peeres in Parliament and so an expresse resolution that they in Parliament are and ought to be Iudges not the Commons The last Records I have cited at large lest Sir Edward Cookes briefe quotation and mis-recitall of them should deceive the credulous or ignorant Reader Eighthly the cases of Sir Giles Monpesson Sir John Michell Viscount S. Alban and the Earle of Middlesex whom the Commons onely impeached and the Lords alone without the Commons votes or presence judged and sentenced are direct proofes that the power of Iudicature and Censure as well of impeached Commoners as Lords resides onely in the Lords House the Commons being but generall Inquisitors to search out and present both Lords and Commoners publike offences to the Lords to whom they transmit the charge and witnesses the Lords the onely Iudges to heare and determine the charge examine the witnesses upon oath and passe and record the sentence and see it executed and no more Iudges in the Parliament then the grand enquest are Iudges at the Assizes or Sessions The second and principall objection insisted upon by that Ignoramuâ— Object 2. Lilburne and his disciples the Levellers is the Statute of Magna Charta chap. 29. That no Free man shall be imprisoned outlawed exiled or any other way destroyed Nor we shall not passe upon him nor condemne him but BY THE LAWFVLL IVDGMENT OF HIS PEERES or BY THE LAW OF THE LAND Whence thus they argue The Lords in Parliament are not Commoners Peers but the Commons only therefore they cannot be judged in Parliament by the Lords but by the Commons alone and if Peers there judge Commoners it is a tyranny and usurpation even against Magna Charta it selfe though it be in case of priviledge To take away this grand seeming objection Answ and give it a satisfactory answer I say First in generall that there is scarce one Parliament ever since Magna Charta was first confirmed but the Lords have sentenced and given judgment against some Commoners capitally or penally in body or purse or both without the Commons and did so doubtlesse before Magna Charta was made as I have already manifested yet never did the Commons in any one of those Parliaments till this present complain of it as a violation of Magna Charta or a tyrannicall usurpation as Lilburne and Overton stile it but acknowledged it as a just right in the Lords even in 3. Caroli it selfe when the Petition of Right was passed in the Lords Iudgment and Sentence against Doctor Manwaring a Commoner impeached by the Commons And therefore for this one Ignoramus alone against the judgements of all the Commons in Parliament in all ages to averre this a breach of Magna Charta for imprisoning and fining him for the highest affront and breach of priviledge over offered to any Parliament is the extremity of ignorance malice and singularity Secondly I answer that the Statute of Magna Charta extendeth not to nor was ever intended of the high Court of Parliaments Iudgements and Proceedings but onely to the proceedings and Iudgements in the Kings great Courts of Iustice at Westminster Hall the Exchequer his Privy Councell and other inferiour Courts held before Judges Iustices of Assize and other Officers as is evident by comparing this objected Chapter with c. 11 12 13 14 18. 28 â—0 3â— 37. by the Statutes of 25. E. 3. Stat. 5. c. 4. 28. E. 3. c. 3. 37. E. 3. â— 18. 38. E. 3. c. 9. 42. E. 3. c. 3. 17. â—2 c. 6. and the Petition of Right it selfe 3. Caroli which so expound it there being never any complaint against the Parliament it selfe or House of Peeres in any age for breach of Magna Charta in censuring or imprisoning Commoners till now Therefore this misapplying of this Law to the Parliament and House of Peers is a grosse oversight Thirdly the very literall sence of this Law is much mistaken by the Objectors For that any Freeman of England is a Peer to another Freeman quatenus such a one within this Law though of an higher degree in point of honour dignity office and estate and this clause * 〈…〉 No Freeman shall be imprisoned and but by the lawfull judgement of his Peers extends onely to exclude villaines and those who are not Freeholders from being Iudges of Freemen and Freeholders in tryalls by Iury whence the Writs to the Sheriffes to summon Iurors require them alwayes to returne Liberos Legales homines not to exclude Lords or Peeres who are Freemen in the higest degree to be Iudges of Commoners who are Freemen So as the Argument from the true meaning of this Law can be but this villaines and those who are no Freemen are not to be Iudges or impannelled in Iuries to condemne Freemen because they are not their Peeres nor Freemen as well as they Therefore
Lords who are Freemen of the higest degree may not give judgement against Commoners who are Freemen very learned nonsence we all know that the Lord Chancellour of England Lord Keeper Lord Treasurer Master of the Court of Wards and some of the Iudges of the Kings Courts in Westminster Hall in former times with the Chiefe Iusticâ—ar and Iustices in Eyre were anciently and of late too as the Earle of Holland and others Peeres of the Realme not Commoners and that all the Peeres of the Realme are in Commissions of Oyer and Terminer and of the Peace yet did wee never heare of any Commoner demurring or pleading thus to any of their Jurisdictions in Chancery Kings Beâ—ch the Exchequer Chamber Eyres Assises or Sessions Sir I am a Commoner and you are a Peer of the Realme but no Commoner as I am besides you sit here onely in the Kings right doing all in his name and representing his person who is not any Peer but Soveraigne Therefore you ought not to judge my cause not condemne my person nor give any sentence for or against mee it being contrary to Magna Charta which enacts That no freeman should be judged or pressed upon or condemned but by the lawfull judgement of his Peers Certainly no person was ever yet so mad or sottish to make such a Plea before Ignoramus Lilburne And if Lords and Peers may judge the persons and causes of Commoners in the Cancery Kings Bench Exchequer Court of Wards Eyre and at Assises and Sâ—ssions without any violation of this clause in Magna Charta much more may the House of Peers in Parliament doe it who are certainly Peers to Commoners though Commoners be not Peers to them within the meaning of Magna Charta ch 29. Forthly If the Lords in Parliament cannot meddle with or give judgement in Commoners cause without breach of this clause in Magna Charta then why did b See his Innocency and truth justified Lilburne himselfe sue and petition to the Lords as the onely competent Iudges to reverse his sentence in Star-Chamber and give him dammages because it was against this very Chapter of Magna Charta If Lords cannot give judgement in the case of Commoners as now he holds without expresse violation of this Law then hâ—mselfe in petitioning the Lords to relieve him against the Starre Chamber Sentence because contrary to this very Law and Chapter of Magna Charta was as great a violation of it as his Starr-Chamber censure and his sentence in Starre-Chamber remaines still unreversed because the Lords examining and reversing of it they being no Commoners as hee is but Peers was Coram non judice and meerly void by the Statute of 25. E. 3. Stâ—t 5. â— 4. because contrary to Magna Charta it selfe as hee now expounds it Let him therefore unriddle and assoyle thiâ— his owne Dilemma or for ever hold his tongue and pen from publishing such absurdities to seduce poore people as he hath donâ— and exaâ—perate them to clamour against the Lords for being more favourable in their censure of him then his transcendent Libels and contempts against them deserved Fifthly This Statute is in the dis-junctive by the Lawfull of his Peers OR BY THE LAW OF THE LAND which this Ignoramus observes not 〈…〉 Now by theâ— Law of the Land every Inferiour Court of justice may fine and imprison men for contempts and misdemeanors against them and their authority therefore the Lords in Parliament being the highest and supreamed Tribunall may much more doe it and have ever done it even by this exprâ—â—â—e clause of Magna Charta the Law and Custome of Parliament as well as they may give c 〈…〉 judgements in writs of Errour againster for Commons without the Commons consent as himselfe â—oth grant Fifthly It is granted by Lilburne that by this expresse Law â—o fâ—eeman of England ought to be judged or censured but onely by his Peers and that Commoners are no Peers to Noblâ—men nor Noblemen Peerâ— to Commoners Then by what Law of reason dared he to publish to the world d 〈…〉 That the House of Commons are the Suâ—reme Power within this Realme and THAT BY RIGHT THEY ARE THE LORDS JVDGES certainly this is a Note beyond Ela a direct contradiction to Magna Charta in this very clause wherein hee placeth his strength and subverts his very ground work against the Lords jurisdiction in their censure of him For if the House of Commons be by right the Lords â—udges then by Magna Charta c. 29. they are and ought to bee their Peers and if the Commons bee the Lords Peers then the Lords must bee the Commons Peers too and if so then they may lawfully be his judges even by Magna Charta because here he grants them to bee no other then his Peers Loe the head of this great Goliah of the Philistin Levellers cut off with his owne sword and Magna Charta for ever vindicated from his ignorant and â—â—ttish contradictory Glosses on it and to convict him of his Errour in affirming the House of Commons to bee by right the Lords judges I might informe him that Magna Charta it selfe â— 1. 20 and Sir Edward Cooke his chiefe Authour in his commentary on them are expresse against him that in the Parliament of 15. c. 3. ch 2. in print it was enacted That whereas before this time the Peers of the Land have been arrested and imprisoned and their Temporalities Lands and Tenements Goods and 〈◊〉 seised in the Kings hards and some put to death WITHOVT IVDGEMENT OF THEIR PEERS that NO PEER OF THE LAND Officer or other by reason of his office nor of things touching his office nor by other cause shall be brought in judgement to lose his Temporalities Lands Tenements Goods Chattels nor to bee arrested or imprisoned outlawed exiled nor forejudged nor put to answer NOR TO BE IVDGED BVT BY AWARD OF THE SAID PEERS IN PARLIAMENT which Priviledge of theirs was both enjoyed and claimed in Parliament 4. E. 3. n. 14. 15. E. 3. n. 6. 8. 44. 49. 51. 17. E. 3. n. 22. 28. F. 3. n. 7. â—0 16. 10 R. 2. n. 7. 8. c. and sundry other Parliament Rolls e See Cook 4. Instit p. 15. â—7 E. 3. 19. And in 11. R. 2. n. 7. All the Lords in this Parliament as well Spirituall as Temporall claimed this their liberty and franchise that all weighty matters in the same Parliament to be after moved TOVCHING THE PEERS OF THE LAND ought to bee determined and judged and discussed BY THE COVRSE OF THE PARLIAMENT and not by the Civill Law nor BY THE COMMON LAWES used in other inferiour Courts of the Relame The which claime and liberty the King most willingly allowed and granted thereto IN FVLL PARLIAMENT And hereupon in the Parliament of 14. R. 2. n. 13. The King and LORDS without the Commons ADIVDGED the Earledome and Seigniory of Richmond to bee forfeited by reason that Iohn Duke of Brâ—â—tany then