was an act of Parliament That the King was party to the Judgement is clear by nu 43. Et est l' intention du Roy des Seignieurs ore ordeignez assentuz en mesme le Parlement c. The Question then is of the Commons of whom there appeares nothing in the Roll but if there be not it doth not follow they did not assent unto it and so made it a compleat Act. Many things doubtlesse past formerly in Parliaments which are not found Recorded And some Statutes to this day Lawes are no where enrolled of which see Sir Edward Cooke Instit. 4. pag. 51. But for the Commons being parties to this Judgement it is so certaine as Walsingham who then lived relates it was expresly at their pursuite In eo Parlamento saies he fuere péne omnes milites cum Petro de la Mare c. hii itaque resumentes petitiones suas eo loco quo prius dimiserant institerant pro bannitione illius Aliciae Peres c. quae quamvis plures ex dominis omnes legis peritos Angliae pecunia corrupisset Diligentia tamen sapientia praedictorum militum ore suo convicta proscribitur omnibus bonis suis mobilibus immobilibus fisco Regio judicatis which relation agreeing with the Record in every thing but where it is more full there can be no doubt of the truth of it nor that this was other then an Act of Parliament 21. The next President is of some who delivered Burbugh Casttle in Rich. 2. time but this he insists not upon as indeed it makes not to the purpose and may receive the same answer Hall Weston and Gomenis before did But for Sir Thomas Mortimer and Sir Iohn Cobham it is certaine the Commons did not onely Impeach them but joyned with the King and Lords in all things concerned them Insomuch as though the Lords had Accused in that Parliament severall Lords Yet the Commons in Parliament Impeached and joyned in whatsoever was done against any Commoner So that nothing past but by the concurrence of the King and the three Estates which is an Act of Parliament 22. For the Fining and Imprisoning of Walter Sibel of London for slandering the Earl of Oxford that is true but before they did so the said Sibel gratiae domini Regis humiliter se submisit and refused to prosecute his accusation against the Earl upon whose submission this Sentence passed as that before of Cambridge nu 13. 23. For that of Iohn Cavendish accusing Michael de la Poole Chancellor of England whom the Lords put over to the Judges It is certain if the Lords have power to Fine and Imprison a Commoner they cannot delegate it to the Judges nor they who are the Kings Agents in administration of Justice Fine any man as Deputies to them but in doing so must proceed after an ordinary course of Law and therefore either that Record of 7 Rich. 2. is imperfect or it was done as the former upon Cavendishes submission who did in part deny his first Accusation of the Chancellor himself turning it onely on his Clark And for the Lords Fining a Commoner I am confident there never was any one penny paid unlesse voluntarily of any summe so imposed by them though perhaps they may at some time have attempted the doing it which I doe the rather assure my self of because the House of Peeres having an intent really to punish by Fine certain Members of their own House for negligently attending there a thing certainly proper for their cogniscance they attempted no meanes to lay so small a summe as an 100l. on an Arch-bishop and Duke an 100 markes on every Bishop and Earle excepting three and fourty pounds on every Abbot and Barron but by Act of Parliament nor to levy it but by expresly providing in that Act those summes should be raised on their lands and goods by processe out of the Exchequer From whence I cannot but inferre that if they would not venture conceiving it would be stood upon the Fining a Lord for a default punishable by the Lords House but by an Act which expresly tooke care how it should be come by much lesse are they alone by Law left at large in their Censure of a Commoner or have any power to levy any summe they set on him But where he sayes the Lords in this case had witnesses examined upon Oath before them I am not resolved the Chancellours Clark protesting his Lords innoceny Sur. non serment and others examined Sur lour liegeances a dire verite doth necessarily inferre the giving an Oath but if any thinke otherwise I will not contend No more then for his last President that the King and Lords for so is the Record not the Lords alone as by him Cited might not commit a Commoner perhaps for some small time for slandring a Peer The Question is not whether they have done it Malto facta sunt quae si in judicium vocentur fieri non debent Besides I am not satisfied but the King and His Councell which none can deny the Lords to be might by the Statute 12 Rich. 2. cap. 11. on his confession as it seemes this was imprison a man for slandering a person of that esteeme the Arch-bishp was and thus I have done with all his elder Presidents 24. For those of the 18 Iocobi and since I will onely say that the course of Trying men in the Lords House having layen asleep if ever practist for about two hundred yeares then firfi renewed many might be ignorant of their owne right nor know how to plead to it And it is certaine some of those Presidents he mentions have never been executed neither were they done without Kings Concurrence in so much as all was done by an united Vote if put in execution Another President I have met with is that it appeares by 6 Rich. 2. cap. 1. Stat. 2. that certaine men were Indited Arraigned or Appealed of High TREASON in Parliament next before And therefore that it is plaine Commoners may be Tryed even for TREASON in Parliament But it is cleare there is no such thing can be gathered either by the Printed Act here spoken of or by the Roll of either Parliament on any thing else more then that there was a Pardon then granted to severall persons and these words in the Point As in the same Parliament is more fully contained must have reference to the pardon granted which doth appeare in the Roll not to the Arraigning which is no where found in it There may now be expected that I speak somewhat If a Subject should be opprest by an illegall Sentence of the Lords how he is to be rectified for non debet esse defectus Iusticia and for any Court Spirituall or Temporall exceeding their power against any Statute In the like case a Prohibition or Supersedeas out of the Kings Bench lies though the
as it seemes of the Commons did Bayle certain persons during the sitting of the Parliament There is no priviledge more certain then that a Member of the House of Commons may not on any occasion be molested by Suite Yet it is clear by the Statute 23 Hen. 6. any man may be sued even before the Judges of Assize on a supposition he was falsly returned for that Statute limits him that shall be injured to bring his action against the person returned within three moneths And it is certain some Parl. did then last above that time And the Knight of Devon was proceeded against in the House of Peeres during his being of the House of Commons But to speak of later times who would not conclude it a certaine priviledge of the House of Commons to have called any one of their Members out of the Lords House and especially the Solicitor they having done it both to Onslow and Popham the 8 and 23 Eliz. Yet attempting it the 31 Eliz. the Lords refused to transmit the Solliciter unto them The 2 of Rich. the 2. the Lords affirme though what was desired by the Commons had been used in the three last Sessions yet it was not the Custome of Parliament By all which it is manifest a thing stood upon sometimes practised and allowed is not certainly a Priviledge of Parliament or to have been justly done if opposed and this goes very farre in answering all M. Prins Presidents of which more hereafter Lastly saies he This Protestation did not foreclose the Lords in this or future Parliaments to give Iudgement against Commoners in other Cases of Felony and Treason even without Commons And yet the Act doth expresly say That as they should not be charged So they should not at all ever have power to give such Iudgement And their now doing it should not be drawn into Example for the future And thus I have answered all his Exceptions against this Law Onely where he makes in so few lines two Exclamations against such as hold this a Law and think to justifie themselves by it of shewing their non-sence rather then reason and Law their injudiciousnesse and folly rather then justification c. I am forced to reply a person of Integrity and Judgement ought not with such sharpnesse raise envyagainst any that defend themselves by Law Nonsence Folly and Injudiciousnesse are words of relation and that which seemes Nonsence to him may be of great weight in others Judgement But if any should make an Appeal whether to affirme with these men this is a Law made in pursuance of the Common right of the Realm and in affirmation of Magna Charta is neerer Nonsence then to call that a Protestation which by its own nature imports some disagreeing is in plaine words stiled an Agreement or nigher Folly then the affirming that to have past without the Kings Concurrence he is expresly said to have assented unto or more Injudicious then to think the Commons not to have been parties to what was agreed in full Parliament or lesse Reason then to say that Law not to barre the Lords in future which clearly provides they should never hereafter have power to judge a Commoner I do not know I say if any should thus appeal who could be met with would not think this Gentlemans Interpretation farther off reason then the very letter of the Law Interpretari legem est dare rationabilem intellectum sive sensum praecipientis praecepti Neither could he any way tearme this raising murmuring or playing the Bethlehem thus to have his own words retorted on him for my part I am confident the Gentleman would never have alleaged this Record and many other Authorities I have met with in his workes had he thought any would have examined the truth of his sayings or had he any other way to weaken what must of necessity be inferred from them but by such viperine glosses And now it will not be unfit to see this as it is undoubtedly a Law how it hath been practist on all occasions in which he is so confident there is hundreds of Presidents to the contrary of what is pretended by it viz. That no man especially claiming that right for if otherwise they may be thought to have submitted to the Triall vigilantibus non dormientibus jura subveniunt being a Commoner ought ever to be tryed otherwise then by a Jury 12. First then in the same Parliament of Edw. 3. Wherein this Statute or Declaration of the Law was made Sir Thomas Berkley Knight in whose Castle Edw. 2. was destroyed was questioned for the said Murther and pleaded not guilty and put himself upon his Country whereupon there was a Jury summoned to appear Coram domino rege in Parliamento suo apud Westminster in Octabis sancti Hillarii prox ' futur Some two moneths after who found him not guilty The Record remembers all the Jurors names and gives the reasons of their Verdict and this is the onely Commoner I ever read of Tryed by Jury in Parliament Which as it doth enough prove the Lords cannot Try a Commoner but that his Tryall must be by men of his own condition per pares so the never being on any occasion at any time after exercised shewes it ought to have been there it being certain the King cannot as here sit personally to Judge any in case of Felony and Treason In the case of the Genovesa slaine by one Kirkby however the killing him was adjudged Treason in Parliament Yet the proceedings against him that did it was in the Kings Bench where Kirkby was Tryed by a Jury and found guilty So likewise in that himself alleages 17 Rich. 2. in the case of Thomas Talbot however the King and Lords adjudged the case Treason yet for his Tryall he was onely to render himself into the Kings Bench there to remain till it should be ordained par advis du Roy son conseil how he should be further proceeded against which was not in Parliament In breach of Priviledge they have not heretofore took upon them to Judge a Commoner otherwise then to seek a Law for the punishing of him 5 Hen. 4. Richard Cheddre a meniall Servant of Sir Thomas Brook comming to the Parliament was wounded by one Iohn Sallage or Savage the Commons nor the Lords never at all goe about the punishing the said Savage but petition the King would be pleased to ordein such sufficient remedy as may terrifie others viz. 1. That if any kill'd or murther'd one so comming as an additionall to what he was by Law to suffer he might lose his hand 2. But if he wounded or beat any that he should be imprisoned a year and sined to the King 3 That His Majesty would absteine from granting any Pardon without the agreement of the Party But to these the King doth not consent and allowes the offender his Tryall in the Kings Bench as is to be seen
in the printed Book The gentleman cites this President I entreat him to peruse the Roll again and tell me if there can be possibly one more punctuall against the Lords judging a Commoner A servant attending a Member comming to Parliament is wounded The Lords and Commons doe not so much as attempt to Try and Censure the doer of it and the Judgement given is by Act of Parliament lesse then what both Lords and Commons hold but sufficient And the Party is allowed his Tryall by Jury in an ordinary Court of Justice 13. The 28. Hen. 6. The Commons impeached the Duke of Suffolk who waived his Peeres and the King gave Judgement but during the sitting of that Parliament The Lords being assembled in the Star-chamber in Councell the 28 of Novemb. Will Talboyes Esquire and others arrayed with Iacks Salets Swerds and Glaives in manner of Warre attempted to have slaine one of the Lords of Parliament and of His Majesties privy Councell there Assembled which being one of the most odious riots had been seen in the Kings time The Commons then sitting declare their detestation of the fact and impeach the said Talboyes and desire he may being then imprisoned in the Tower of London remaine there for 12 moneths and to answer the same in His Majesties Court in presence of his Justice but the thing desired being not altogether according to the course of the Common-law the Subjects undoubted birth-right was denied by the King and stopt and no proceedings against him in Parliament ever thought on I should be tedious to repeat the Examples of Murthers Riots Rapes and other misdemeanours complained of in Parliament and yet the Lords not at all attempting to Judge the offenders being a Commoner but onely to provide a faire Tryall should be had in the Kings Bench or other ordinary Courts of Common-law against him and sometimes by Statute desire to increase the punishment at the Common-law which had been vain had it been in their power Arbitrarily to have censured the Offender Such as would see them may amongst others read Rot. Parl. 13 Rich. 2. nu 11. 11 Hen. 4. nu 37 38. 11 Hen. 6. nu 12. 43. 15 Hen. 6. nu 13 14 15. 18 Hen. 6. nu 28. 23 Hen. 6. nu 42. And here I thought to have ended the Presidents I have observed in this case but that of Cambridge comes so fit that though it have been touched by others formerly I cannot but set it down somewhat more fully Unto Rich. 2. There was a great complaint in Parliament against the Major Baylifs and Cominaltee of Cambridge for some complyance in a late commotion against the University the Commons of that Town in their defence by their Councell plead against the Jurisdiction of the Court Que ceste Court n'ent doit avoir coniscance ne Iurisdiction The Lords moved affirme if they will give no other Answer they will proceed against them as men that know not what to say In the end a middle course is taken The Major and Citizens submit themselves to the Kings Ordinance touching onely their Franchises by vertue of which submission the King by the assent of the Lords seized the Franchises of the said Town And in the end committed to the Chancellor and Schollers the cognizance and punishment of defaults in the Assize of Bread Wine and Beer and of Flesh Fish c. And the rest of all the Franchises bestowed on the Major and Bayliffes againe This Ordinance gave no content to the Commonalty there who often molested the Schollars indicting them on true and sometimes on feined pretences Whereupon the Chancellor and Schollars about 7 yeares after framed a Petition to the Parliament against them which was sent down to the Major and Bayliffes of Cambridge commanding them to appear before the King and His Councell the next day after Candlemas with sufficient instructions and power to Answer all things for the Cominalty there under the Common-seal of the Town At which time the Major and Bayliffes came into Parliament but the Cominalty would not give them Authority to answer for them whereupon nothing was done of which contempt there is no question but we should have found some prosecution in that or some following Parliament but that not submitting the Lords knew they had no power to Try and Judge them being Commoners 14. And to speak seriously if the Lords may Try a Commoner they may Judge any mans title to his Lands for no Law limiting the extent of their power but that being Arbitrary it may reach to all causes whithersoever they will stretch it and so Westminster Hall sit quiet And the Subject of England hath not desired an illimited power no not in the two Houses and have therefore moderated Parliaments that they should not subvert the Lawes of the Land See 1 Hen. 4. cap. 14. 4 Hen. 4. cap. â—3 sometimes by expresse words determining that some things cannot be done in Parliament as that any should be impeached there of that concerns his Franktenement or hereditament c. Rot. Parl. 10 Hen. 6. nu 35. And as there is no limit of their power so being directed by nothing but their will either in judging what is an Offence or punishing of it they alone or with the Commons may alter the Law for ubi non est lex non est transgressio Rom. 4. 15. And if they can question and punish a man at their wills for that is neither Malum in se nor Malum prohibitum that is for that is no offence either by the Common or Statute Law a man may suffer by Fine Imprisonment or farther for that the Law takes no notice to be an Offence which is contrary to Magna Charta cap. 29. and a plain change of the Law which cannot be made but by the King and the three Estates in Parliament 15. Having thus shewed the Antiquity continuance inconvenience if otherwise of this Law There remaines onely to answer some presidents the Gentleman hath alledged as if the Practice had beene alwayes othrewise of all which though I might affirme with my Lord Cooke in Slades case lib. 4. fol. 94. that being never questioned nor confirmed by Judgements given when the case was stood upon they ought not to be regarged yet I shall shew him not one of them is at all to purpose every circumstance considered His first then is that of John Hall who killed the Duke of Glocester at Calice whose case yet he confesseth was not Tryable but in Parliament 16. Whether the King Lords had not cognizance of the fact of a Commoner so hainous not Tryable by the CoÌ„mon Law as this was not is a question I wil not now dispute That being absolutely taken away by Statut. Besides I am not satisfied this was not by Act of Parliament with the Commons consent for at the end of the Roll they thank the King for his just Judgement who yet never is read to
have shewed it unto them as indeed it was not then usuall But I shall aske the Gentleman whether he will justifie all the proceedings in that Cause as standing with the Common Justice of the Realme Certainly it would be now by many thought very hard for a person in custody to be first examined privately upon his own Oath to accuse himself and then without being further proceeded with by Law to have the Judgement in effect of a Traitor for killing a Person apparently not within the Statute of 25 Edw. 3. doubtlesse so farre as it appeares to me this may be one of those Presidents whereof Sir Edward Cooke aufereat oblivio si potest si non utcunque silentium tegat Of which opinion the Commons it seemes were who however they let it then passe he not pleading the priviledge of a Commoner yet took care it should not be so any more And it is observable that they desire no such Accusation should be received in Parliament but in His Majesties other Courts Come ad este fait use anciennement en temps de vos tres nobles progenitors c. Which affirmation is indeed as much as is stood upon viz. That it was not the use to try a Commoner in Parliament 17. His second proof 1 Hen. 4. nu 79. Where the Commons affirme Iudgements in Parliament pertaine onely to the King and Lords c. You may see the record at large in his book pag. 37. and M. Lylburnes called the Lawes funerall pag. 16. and sets in the Margint nota and pag. 38. That it is so full and punctuall a Parliamentary decision as is uncapeble of any answer or evasion To this if I should answer that it was no Act of Parliament and therefore bindeth not in succession nor is now by consequence of any force I followed no lesse Lawyer then Sir Edward Cooke but I confesse that passage seemes to me a Declaration of what of right did in any Parliament belong to the Lords and Commons and therefore to be more then temporary I shall therefore say that this President must extend onely to such things which were of the cogniscance of the Parliament and proper for that Judicature not of things did no way at all appertain unto that Court Rot. Parl. 13 Rich. 2. nu 10. after hearing a very long case the Record notes Ysembla as Seignieurs du Parlement que la dite petition n' estoit pas petition du Parlement einz que la matiere enycelle compris dent este tryepar la come ley Certainly they seeme not to have been Judges in that case nor in another Petition Rot. Parl. 16 Rich. 2. nu 32. To which the Answer is Suent a Roy purce que ceste petition n' est pas petition del Parlement Rot Parl. 10. Hen. 6. nu 35. The Commons affirme matters touching a mans Inheritance are not examinable in Parliament and 32 Hen. 6. nu 27. a President himself remembers page 51. it is expresly said Actions at Common-law be not determined in the High Court of Parliament By all which it is manifest those words that Judgements perteine to the King and Lords must be understood of such things whose decision is proper and perteine legally onely to the Parliament such was that 27 Hen. 6. nu 18. touching placing the Lords in Parliament and that was given 1 Hen. 4. in Parliament against the King himself of which the Commons seeme to have had no knowledge 1 Hen. 4. nu 145. which when the like came again in question Rot. Parl. 39 Hen. 6. nu 12. in the case of the Title of the Duke of York The Lords in Parliament charge the Iudges sadly to advise touching it who the 20 of October Answer That they were the Kings Iustices to determine matters in Law between party and party That this was above the Law and passed their Learning that the decision of it perteined to the Lords of the Kings blood and the Peerage of the Land and therefore they desired to be excused of giving Councell in that matter Now indeed in such cases I shall not deny but the King and they may be Judges Yet whatever that priviledge is in judging when they make a Law to binde the Subject concerning any thing of that nature to that the Commons are parties as well as the Lords See 7 Hen. 4. cap. 2. 25 Hen. 8. cap. 22. 28 Hen. 8. cap. 7. 35 Hen. 8. cap. 1. 18. To his next president of 17 Rich. 2. nu 20 21. touching Tho Talbots conspiring the death's of the Dukes of Lancaster and Glocester I have Answered before nu 12. That it was by the Lords onely referred to the Common-law 19. His next president is that of the Earl of Northumberland 5 Hen. 4. nu 12. which being no Commoner is nothing to the purpose as himself consesseth page 29. and page 41. Onely touching the Protestation of the Lords it is apparent they then had an opinion the King would have tryed him a Lord by the Judges without them who were his Peeres And for the Kings giving Judgement against Henry and Thomas Percy he well knowes there was no person then Judged or brought into Judgement onely an opinion of the King and Lords delivered upon a desire of the Archbishop of Canterbury who conceived himself and the Duke of York in some suspition of having adhered to Hotspur and the Earl of Worcester whom the Earl of Northumberland then newly cleared by them did free from having had any complyance with them Yet so as the King and Lords did affirme the warre formerly raised by them should be held Treason So indeed judgeing no man but delivering an opinion that a War raised by two whereof one was slaine in Fight the other beheaded the next day at Shrewesbury should be held Treason of which there was little question His next President is that of Weston and Gomenis to which though I have answered before nu 15. in the case of Hall their offences having been committed beyond the Seas and therefore not Tryable by an ordinary way in England and now taken away by Statute Yet it is apparent that Judgement was an Act of Parliament passing at the request of the Commons by the assent of the Lords and stopt till the King could be informed 20. His next is that of Alice Perers against whom Iudgement of Banishment and forfeiture of Land was given by the Lords without the King or Commons This is the onely President that hath most colour of truth and to his purpose in all his Book And whether she a person that laboured then under the publique hate for her many leud carriages might not have somewhat acted against her not fit to be observed at other times I cannot tell it appearing by record the Law on which that Judgement was grounded of the 50 Ed. 3. did passe without ever calling her to answer But for my part I doe affirme this