Barons being no such Knights Citizens or Burgesses as the writ enjoyns them to elect and return 3. By all the Statutes for electing Knights Citizens and Burgesses recorded in Rastall Tit. Parliament the Lords being not within their words or intention 4. By the Great Charter of King John and express Statutes of 5 R. 2. Stat. 2. c. 4.31 H. 8. c. 10. Rot. Par. n. 10. which disable them to sit amongst the Commons but only in the Lords house among their Peers 5. By the very words of the Patents of their Creation which authorize and prescribe all Dukes Earls Viconts Barons in direct terms Quod in omnibus tenerentur tractentur et reputentur ut Duces Comites Barones quod haeredes sui masculi et eorum quilibet habeat teneat possideat sedem locum et vocem in Parliamentis publilicis Comitiis et Consiliis nostris Haeredum et Successorum nostrorum infra Regnum nostrum Angliae inter alios Duces Comites et Barones not amongst the Knights Citizens and Burgesses ut Duces Comites et Barones Parliamentorum Publicorum Comitiorum et Consiliorum not as Knights Citizens or Burgesses 6. By Sir Edward Cooks 4 Institutes p. 46 47. and Mr. Seldens Titles of Honour p. 736 737. who resolve That a Baron or Lord of Parliament is not eligible to be a Knight Citizen or Burgess of the House of Commons as was resolved in the case of Thomas Camoyes who was not only a Baronet but also a Baron and Lord of Parliament The Lord Camoyes being elected by the Freeholders of the County of Surrey for one of the Knights of the Shire to serve in Parliament for them Anno 7 R. 2. thereupon the King by advice of Council declared his election to be null and void in Law and commanded a new election of some other fit person to be made in his place by this memorable Writ extant on record Rex Vicecomiti Surriae salutem Quia ut accepimus tu Thomam Camoyes Chivaler qui Baronettus est sicut quamplures antecessorum suorum extiterunt ad essendum unum Militum venientium ad proximum Parliamentum nostrum pro Communitate Comitatus praedicti de assensu ejusdem Comitatus eligisti Nos advertentes quod hujusmodi Baronetti ante haec tempora in Milites Comitatus ratione alicujus Parliamenti elegi minime consueverunt ipsum de officio Militis ad dictum Parliamentum pro communitate Comitatus praedicti venturi exonerari volumus Et ideo tibi praecipimus quod quendam aâ—ium Misi em idoneum et discretum gladio cinctum in loco ipsius Thomae elegi et eum ad diem et locum Parliamenti praedicti venire facias cum plena et sufficienti potestate ad consentiendum hiis quae in Parliamento praedicto sicut juxta renorem prioris Brevis nostri tibi pro electione hujusmodi militum directi et nomen ejus Nobis Sciri facias Teste Rege apud Westmonasterium octavo die Octobris 7ly Both Houses of Parliament in their Remonstrance of Nov. 2. 1642. declare and publish in print to all the World This to be so clear and fundamental a privilege of Parliament That no Member of either House of Parliament is to be taken away or detained from the service of the House whereof he is a Member until such time as that House hath satisfaction concerning the cause and the cause be heard in Parliament first and dismissed from it That the whole freedom of Parlament dependeth upon it For who seeth not that by this means under false pretences of crimes and accusations such or so many Members of both or either Houses of Parliament may be taken out of it at any time by any persons to serve a turn and to make a MAJOR PART of whom they will at pleasure So as the freedom of Parliament dependeth in a great part on this privilege yea without it the whole Body of the Parliament will be destroyed by depriving it of its Members by degrees some at one time and others at another time as both Houses further remonstrate in their Declaration of October 23. 1642. Which as it infallibly demonstrates that the Lords House or Members cannot be taken away or taken from them against their wils without the destruction subversion of the whole Parliament of which they are chief Members the Judicial power of Parliaments residing principally in that House if not wholly So it likewise clearly resolves that no Peer or Member of the Lords House can be elected a Member of the Commons house For if the election of the Freeholders Citizens or Burgesses of any County City or Borough of a Duke Earl Lord or Baron of the Realm to be a Knight Citizen or Burgess in Parliament should be valid in Law to make them legal actual Members of the Commons house it would then lie in their powers to un-Peer un-Lord and degrade any Nobleman yea all the Earls Peers Lords Barons of the Realm and their Posterity at their pleasures to reduce them and the whole House of Peers into the Commons inferiour house and so quite dissolve the Lords House in high affront dishonor of the Lords and their House and of the Kings Soveraign royal Authority the fountain of all Honor and that without any legal trial or Judgment by their Peers or just cause of degradation on their parts against the express words and meaning of Magna Charta c. 29. And if any Lords upon such Elections should so far degenerate debase or degrade themselves as to accept thereof and ignobly sit and vote as Members of the Commons House both they and their posteritieâ— for such an ignoble act meritoriously deserved to be for ever degraded from their Nobility and secluded from all future sitting in the Lords House as Peers becoming thereby the very shame scorn scandal of Nobility fit only to be ranked with the basest Peasants to whom these Levellers would now equallize them Yea it would be now no less than wilfull perjury in any Freeholders Citizens Burgesses to elect them Knights or Burgesses and in themselves to accept of such Elections when chosen and in the whole House of Peers and Commons too once to permit allow approve or connive at such elections after their late Protestation Vow and Solemn League and Covenant to maintain to their power the Rights Privileges of Parliament and both Houses of Parliament whereof this is an unquestionable Right and Privilege That no Member of the Lords House should be elected a Knight Citizen Burgess or brought down from thence to sit only as a Commoner in the Commons House so long as he continues a Peer or Member of the Lords House a distinct House from and superior to the Commons House in all ages as its Title of the Lower House and their standing alwayes bare before the Lords with other evidences demonstrate nor any Knight Citizen or Burgess a true real Member of the House of Peers
the Attainders repealed by Bill afterwards In the Parliament of 25 H. 8. c. 12. Elizabeth Barkin Richard Master Edward Barkin and sundry others were attainted and condemned of High Treason John Fisher Bishop of Rochester Thomas Gold and others of misprission of High Treason by Act of Parliament In the Parliament of 28 H. 8. c. 7. Queen Anne George Lord Rochford Sir Henry Norris Sir Francis Weston William Breerton Esquire and Mark Sutton were convicted and attainted of High Treason and their lands forfeited by Bill In the Parliament of 32 H. 8. Thomas Lord Cornwell was convicted and attainted of High Treason by Bill against Law and the great Charter without ever being called to answer or any legal hearing for the Treasons therein expressed according â—o his own intentions to have thus proceeded against others without legal tryal In the Parliament of 33 H. 8. c. 21. Queen Katherine Jane Lady Rochford were convicted and attainted of High Treason by Bill to which Act the king was enabled to give his royal assent by Letters Patents signed by him under his hand with his great Seal notified and published in the HIGHER HOUSE to the Lords Spiritual and Temporal and the Commons there assembled without comming to the House in person to give his royal assent thereto In the Parliament of 2 3. Ed. 6. ch 17. Sir william Sharington Knight being indicted and attainted of High Treason for forging and coyning of mony called Testons his attainder was confirmed by Act of Parliament and his lands forfeited And ch 18 Sir Thomas Seymor Lord Seymor of Sudley and high Admiral of England for his trayterous aspiring to the Crown of this Realm and to be King of the same and for compassing and imagining by open Act to deprive the King of his royal estate and title of his Realms and for compassing and imagining the death of his Noblemen and most trayterously to take away and destroy all things which should have sounded to the let or impediment of this his most trayterous and ambitious enterprise as the Act recites and for other his misdemeanors innumerable untruths falshoods deceiptfull practises outrages against the King oppression manifest extortion upon the Subjects of the Realm was adjudged and attainted of high Treason by Bill and to sustain such pain of death and other forfeitures aes in cases of High Treason have been used being a Member so unnaturul unkind and corrupt and such a heynous offender of his Majesty and his Laws that he cannot nor may not conveniently be suffered to remain in the body of the Commonwealth but to the extreme danger of the Kings Highness being the head and of all the good Members of the same and of too pernicious and dangerous example that such a person so bound to his Majesty by sundry great benefits and so forgetfull of them and so cruelly and urgently continuing in his false and treacherous intents and purposes against his Highness and the whole estate of his Realm should remain among us In the Parliament of 1 Mariae ch 1. the Attainder of Queen Katherine is reversed by Bill and ch 16. the Attainders of John Duke of Northumberland Thomas Cranmer Archbishop of Canterbury William Marquess of Northampton John Earl of Warwick Sir Ambrose Dudley with other Knights and Gentlemen formerly convicted and attainted of Treason according to the Law of the Realm for their detestable and abominable Treasons in proclaiming and setting up Queen Jane to the peril and great danger of the person of Queen Mary and to the utter loss disherison and destruction of the Realm of England if God in his infinite goodness had not in due time revealed their trayterous intents as the Act recites at the Petition and with the assent of the Lords Spiritual and Temporal and Commons in Parliament were confirmed and ratified by a special Act. In the Parliament of 29 Eliz. c. 1. the Attainders of Thomas Lord Paget Sir Francis Englefield and sundry other Knights and Gentlemen who were lawfully indicted convicted and attainted of many unnatural detestable and abominable Treasons to the fearfull peril and danger of the destruction of the Queens Majesties person and of the Realm were confirmed by a special Act and ch 3. there is another Act to avoid fraudulent assurances made in certain cases by Traytors In the Parliament of 3 Jacobi ch 2. Sir Everâ—rd Digby Robert Winter Guy Fawkes Robert Catesâ—y and all the rest of the Gunpowder Traytors who undertook the execution of the most barbarous execrable and abominable Treason that could ever enter into the hearts of most wicked men by blowing up the Lords House of Parliament with the King Queen Prince Lords Spiritual and Temporal Judges Knights Citizens and Burgesses of Parliament therein assembled were attainted of High Treason and their former attainders and convictions confirmed by a special Act And in this very last Parliament the Earl of Strafford Lord Deputy of Ireland and William Laud Archbishop of Canterbury after judgement of high Treason upon their several impeachments and trials given against them by the Lords in their House were likewise attainted of Treason and their judgements ratified by a special Bill and Ordinance to which the Commons assented as well as the Lords their assents to Attainders by way of Act or Bill being so necessary that if the King in Parliament Wills that such a man shall be attainted of Treason and lose his lands and the Lords assent and nothing is spoken of the Commons in the Bill this is no Act nor good Attainder in Law and the petson shall be restored by the opinion of all the Judges 4 H. 7. f. 18. Broke Parliam 42. Fitz. 3.7 H. 7.14 11 H. 7.27 Broke Parliam 107. Plowden 79.32 H. 6.18 As the Commons in our English Parliaments have assented to all these and some other Bills and Acts of Attainder cited in Sir Edward Cooks 4 Institutes ch 1 2. and Mr. St. Johns Argument at Law concerning the Bill of Attainder of High Treason of Thomas Earl of Strafford printed by Order of the Commons House 1641. So I find that the Commons in Ireland have done the like in the Parliaments held in Ireland as the Printed Statutes of Ireland 28 H. 8. c. 1. for the Attainder of the Earl of Kildare and others of High Treason 11 Eliz. ch 1. for the Attainder of Shan O Neyle and others of High Treason of 13 Eliz ch 6. 7. for the Attainders of Fiâ—zgerald and others of High Treason Of 27 Eliz. ch 1. for the Attainders of Iames Eustace and others of High Treason of 28 Eliz. ch 8. 9. for the Attainders of the Earl of Desmond John Brown and others and of 11 Jacobi ch 4. for the Attainders of the Earl of Tyrone and others of High Treason for their several rebellions insurrections wars against their Soveraigns and other Treasons mentioned in these respective Acts abundantly evidence But yet the Commons assents to all these Bills
Vice-Chamberlain before the King and Lords of divers offences against the King who taking the accusation to be good because of the Bishops order and that he was of the kingâ— linage pardoned the said Bishop all his misprisions done against his person and reconciled the Bishop and Sir Thomas one to another And n. 30 31. all the Lords Temporal whose names are there recorded being 25. in number by assent of the King declared and ADJUDGED Thomas Holland late Earl of Kent John Holland late Earl of Huntingdon John Mountague late Earl of Salisbury Thomas le Despencer Sir Ralph Lumley Knight and divers others who were for their Rebellions and Treasons in levying war against the King taken slain or beheaded by certain of the Kings Subjects to be Traytors and that they should forfeit all such Lands as they had in fee the 5. of January the first year of the King or at any time after with all their goods and chattels The Record is Toutz les Seigneurs temporelz esteantz en Parlement per ussent du Roy declarerent et adjuggerent les ditz Thomas c. pur Trayteurs pur la leve de Guerre encountre lour Seignior le Roy nient obstant qils furent mortz sur le dâ—t leve de guerre sanz process de ley Lo here the Lords alone by the Kings assent declare and adjudge what is Treason both in the case of Lords and Commoners too and â—taint and give Judgement against them both without the Commons after their deaths without legal trial In the Parliament of 5 H. 4. rot Parl. n. 11 12 13 14. On Friday the 18 of February the Earl of Northumberland came before the King Lords and Commons in Parliament and by his Petition to the King acknowledged that he had done against his Lawes and allegeance and especially for gathering power giving of Liveries for which he put himself upon the Kings grace and prayed pardon the rather for that upon the Kings Letters he yielded himself and came to the King at York whereas he might have kept himself away Which Petition by the Kings command was delivered to the Justices to be examined and to have their counsel and advice therein Whereupon the LORDS made a Protestation que le Juggement appentient a â—ux tout soulement THAT THE JUDGEMENT APPERTAINED ONLY TO THEM And after the said Petition being read and considered before the King and the said Lords as Peers of Parliament aus queux teils juggemeâ—t apperteignent de deoit to whom such Iudgements appertained of right having had by the Kings command competent deliberation thereupon and having also heard and considered as well the Statute made in the 25. year of King Edward the Kings Grand father that now is concerning the Declaration of Treason as the Statutes of Liveries made in this Kings reign ADJUDGED That that which was done by the said Earl contained within his Petition was neither Treason nor Felony but Trespas for which the said Earl ought to make fine and ransom at the will of the King Whereupon the said Earl most humbly thanked our Lord the King and the said Lords his Peers of Parliament for their rightfull judgement and the Commoners for their good affections and dâ—ligence used and shewen in this behalf And the said Earl further prayed the King that in assurance of these matters to remove all jealousies and evil suspitions that he might be sworn a new in the presence of the King and of the Lords and Commons in Parliament and the said Earl took an Oath upon the Crosier of the Archbishop of Canterbury to be a faithfull and loyal liege to our Lord the King the Prince his Son and to the heirs of his body inheritable to the Crown according to the Laws of England Whereupon the king out of his grace pardoned him his fine and ransom for the trespass aforesaid After which num 17. the Lords Spiritual and Temporal humbly thanked the King sitting in his royal Throne in the white Chamber for his grace and pardon to the said Earl of his fine and ransom and likewise the Commons thankâ— the Lords Spiritual and Temporal for the good and just Iudgement they had given as Peers of Parliament to the said Earl From this memorable Record I shall observe First that though this Declaration of this Earls case was made by his Petition in the presence of the King Lords and Commons in Parliament according to the Statute of 25 E. 3. yet the Lords only by Protestation in presence of the King and Commons claimed to be the sole Iudges of it as Peers of Parliament and belonging to them OF RIGHT Secondly That this claim of theirs in this case was acknowledged and submitted to both by the King and Commons and thereupon the Lords only after serious consideration of the case and Statutes whereon it depended gave the definitive sentence and judgement in this case that it was neither Treason nor Felony but Trespass only c. Thirdly That the Earl thanked the King only for his grace the Lords for their just Iudgement and the Commons only for their good hearts and diligence having no share in the judgement though given by the Lords both in the Kings and their presence and that the Commons themselves returned special thanks to the Lords Spiritual and Temporal in Parliament for their good and just judgement Fourthly That this judgement of the Lordr only was final and conclusive both to the King and Commons who acquiesced in it In the Parliament of 2 H. 5. rot Parl. num 13 14. Thomas Mountague Earl of Salisbury son and heir of John Mountague Earl of Salisbury exhibited his petition in Parliament to reverse a judgement given against his said father in the Parliament at Westminster in the second year of King Henry the fourth rot Parl. n. 30 31. forecited wherein amongst others he was attainted of Treason by judgement of all the Temporal Lords in Parliament and thereupon he exhibited certain reversals of Judgements given in Parliament as making on his behalf to the Lords consideration reversed for some errors assigned in those judgements to wit one judgement given against Thomas heretofore Earl of Lancaster before King Edward the second at Pomfract the Monday before the feast of the Annunciation in the fifteenth year of his reign and another Judgement against Roger de Mortymer late Earl of March in the Parliament of King Edward the third the Monday after the feast of St. Katherine in the fourth year of his reign at Westminster Which Judgements being distinctly and openly readâ— and fully understood It seemed to the King and Lords that the case of the death and execution of the said John late Earl of Sarum and of the judgement aforesaid against him given is not nor was like to the case of the executing of the said Th. heretofore Earl of Lancaster nor to the case of the putting to death of Roger Earl of March nor to any judgement given against
and Law of the Land And this was the main reason of this their Protestation as the close of it shews to prevent such dangerous presidents for the future Upon which ground the Judgements they then gave against Roger Mortymer John Mautravers were reversed in the Parliament of 21 E. 3. n. 65.28 E. 3. n. 8. to 16. Lastly This Protestation did not foreclose the Lords in this or future Parliaments to give Judgement against Commoners in other cases of Felony and Treason even without the Commons which I shall prove by some other instances In the Parliament of 4 Ed. 3. n. 16. Sir Thomas Berkeley Knight was arraigned and tried by a Jury for Treason as being guilty of the death of King Edward the 2. committed to his custody who pleaded not guilty and was tried in full Parliament before the King by a Jury and by them acquitted Which case being rare and memorable I shall here insert the whole Record Thomas de Berkele Miles venit coram Domino Rege in pleno Parliamento suo praedicto et allocutus hoc Quod eum Dominus Edwardus nuper Rex Angliae pater Domini Regis nunc in custodia ipsius Thomae et cujusdam Johanuis Mautravors nuper extitit collatus ad salvo custodiendum in castro ipsius Thomae apud Berkele in Com. Gloucestriae et in eodem castro in custodia ipsorum Thomae Johannis murdratus extitit et interfectus qualiter se velit de morte ipsius Regis acquietare Dicit quod nunquam fuit consentiens auxilians seu procurans ad mortem suam nec unquam scivit de morte sua usquam in praesenti Parliamento isto et de hoc paratus est acquietare se prout CURIA REGIS consideraverit Et super hoc quaefitus est ab eo ex quo ipse est Dominus castri praedicti et idem Dominus Rex in custodia ipsorum Thomae Johannis extitit liberatus ad salvo custodiend ipsi custodiam ipsius Regis recepeâ—unt et acceptarunt quali er se excusare possit quin de morte ipsius Regis respondere debeat Et praedictus Thomas dicit quod verum est quod ipse est Dominus Castri praedicti et quod ipse simul cum Johanne Mautravers custodiam ipsius Regis recepit ad salvo custodiend ut praedictum est Sed dicit quod eo tempore quo dicitur ipsum Dominum Regem esse murdratum et interfectum fuit ipse taliter tanta infirmitate apud Bradeley extra Castrum praedictum detentus quod ei currebat memoriae Et super hoc dictum est ei quod ex quo cognovit quod ipse simul cum dicto Johanne custodiam ipsius Domini Regis obtinuit ut praedictum est et ipse custodes et ministros sub se posuit ad custodiam de eo faciendam si per aliquam infirmitatem excusari posset quin respondere debuit in hac parte Et praedictus Thomas dicit quod ipse posuit sub se tales custodes et ministros in castro praedicto pro custodia facienda a quibus ipse se confidebat ut de seipso qui custodiam ipsius Regis simul cum praedicto Johanne Mautravers inde habuerunt unde dicit quod ipse de morte ipsius Domini Regis auxilio assensu seu procuratione mortis suae in nullo est inde culpabilis Et de hoc de bono et malo ponit se suâ—er patriam Ideo venerint inde Juratores coram Domino Rege in Parliamento suo apud Westm in Octabis Sancti Hilarii proxime futuri c. Ad quam diem venit praedictus Thomas coram Domino Rege in pleno Parliamento ac similiter Juratores scil Johannes Darci Iohannes de Wisham Willielmus Trussell Rogerus de Swyneuerton Constantius de Morâ—imer Iohannes de sancto Phileberto Richardus de Rivers Petrus Hussey Iohannis de Dynton Richardus de la Rivere Robertus Dabenhate Richardus de Corveyes omnes milites Qui dicunt super Sacramentum suum quod praedictus Thomas de Berkelie in nullo est culpabilis praedicti Domini Edwardi Regis Patris Domini Regis nunc nec de assensu auxilio seu procuratione mortis ejusdem Et dicunt quod tempore mortis ejusdem Domini Edwardi Regis patris Domini Regis nunc fuit ipse tali infirmitate gravatus apud Bradely extra castrum suum praedictum quod de viâ—a ejus desperabatur Ideo idem Thomas inde quietus Juratores quaesiti si idem Thomas unquam substraxit se occasione praedicta dicunt quod non Et quia idem Thomas posuit custodes et ministros sub se scil Thomam de Gourney et Willielmum de Ocle ad custodiam de ipso Domino Rege faciendam per quod idem Dominus Rex extitit murdratus et interfectus datus est ei dies coram Domino Rege nunc in proximo Parliamento suo de audiendo JUDICIO SUO c. Et praedictus Thomas de Berkelei interim committitur Radulpho de Nevill Mareschallo hospitii Domini Regis c. It is observable that though Edward the 2. was murdered after he was deposed by this Parliament yet he is still â—â—lled a King in this Indictment and record and his murder adjudged Treason in those who did it After his acquittal he put in Mainpernors to appear in the next Parliament Where appearing he and his Mainpernors were discharged but yet himself ordered to appear again the ensuing Parliament as appears by the Parliament Roll of 5 E. 3. n. 16. William Thorp Chief Justice of the Kings Bench and one of the Justices of Assize in the County of Lincoln in the 23 year of Ed. the 3. against his Oath took 10 l. of Richard Saltley 20 l. of Hildebrand of Beresward 40 l. of Gilbert Holliland 40 l. and 10 l. of Ro. Daldorby to stay an Exigent upon an Indictment of diverse felonies that should have issued against them Whereupon he was indicted before the Earls of Arundel Warwick and Huntingdon the Lord Gray and Lord Burghers Anno 24 E. 3. to whom the King by Commission referred the examination of the businesse before whom he could not deny but confessed the Bribery Ideo consideratum est per dictos Justiciarios assignatos ad judicandum secundum voluntatem Regis et secundum regale posse suum quod quia praedictus Willielmus Thorpâ— qui sacramentum Domini Regis quod erga populum suum habuit custodiendum fregit malitiose false et rebelliter in quantum in ipso fuit ex causis supradictis ipsum Willielmum expresse cognitis ideo SUSPENDATUR et quod omnia terra et tenementa bona et catalla sua remaneant forisfacta The King by a writ under the privy Seal stayed his execution and sent him Prisoner to the Tower In the Parliament of 25 Ed. 3. nu 10. command was given that the record of this Judgement
it was shewed to the said John Lord of Gomynes by the said Steward how the said LORDS had assembled and considered of his answer and THAT IT SEEMED TO THE LORDS sitting in full Parliament that without duresse or default of victuals or other necessaries for the defence of the Town Castle of Arde and without the Kings Command he had evilly delivered and surrendred them to the Kings Enemies by his own default against all appearance of right or reason contrary to his undertaking safely to keep the same Wherefore THE LORDS aforesaid here in full Parlia-ADJUDGE YOU TO DEATH And because you are a Gentleman and a Baronet and have served the Kings Grandfather in his wars and are no Liege man of our Lord the King you shall be beheaded without having OTHER JUDGEMENT And because that our Lord the King is not yet informed of the manner of this Judgement the execution thereof shall be put in respite until our Lord the King be informed thereof Loe here two express Judgements given in Parliament by the LORDS alone without King or Commons in case of Treason even against Commoners themselves And an express acknowledgement by the Commons of the Lords right to award Iudgement in these cases without the King or them than which a fuller and clearer proof cannot be desired In the Parliament of 2 R. 2. n. 34 35. Sir Robert Howard knight was committed prisoner to the Tower upon the complaint of the Lady Nevil by the Lords in Parliament for a forcible imprisonment of her daughter to which he was accessory that she might not prosecute a divorce in Court Christian In the 50 year of King Edward the 3. in the Parliament called the good Parliament Sir John Anneslee Knight accused Thomas Katrington Esquire of Treason for selling the Castle of St. Saviour in the Isle of Constantine to the French for an inestimable sum of money cum nec defensio sibi nec victualia defuissent whereupon he was taken and imprisoned but in King Edwards sickness enlarged by the Lord Latymers means as was reported In the Parliament held at London Anno 1380. the 3. of R n. 2. he was again accused by Sir John Anneslee and there resolved that being a Treason done beyond Sea not in England it ought to be tried by duel before the Constable or Marshal of the Realm Whereupon a day of battel was appointed in the Court at Westminster the 7. of June and lists set up On which day in the morning they fought the battel in the presence of the KING Nobles and Commons of the Realm which Walsingham at large describes till both of them were tyred and lay tumbling on the ground where the Esquire got upon the Knight as if he had conquered him Others said the Knight would rise again and vanquish the Esquire Interea Rex pacem clamari prâ—cepit et militem erigâ— The Knight refused to be lifted up as the Esquire was desiring he might be laid upon him again for he was well and would gain the victory if he were laid upon him again When he could not obtain his request being lifted up he went chearfully to the King without help when as the Esquire could neither stand nor go but as two held him up and thereupon was set in a chair to rest himself The Knight when he came before the King rogavis Eum et Proceres ut sibi illam concederunt gratiam ut itâ—rum in loco quo prius posset reponi et armiger super eum Rex vero et Proceres cum vidissent miliâ—em tam animose â—am vivide bellum repetere et insuper magnam summam auri offerre publice ut id posset effici decreverunt eum iterum reponendum armigerum super eum modo universaliter servato quo â—acuerant ante prostrati But the Esquire in the mean time in a swoun fell out of the chair as dead between the hands of those who stood by him Whereupon many running to him chafed him with wine and water but could not recover him till they pulled off his arms Quod factum et Militem victorem probavit Arm gerum esse victum After some space the Esquire reviving opened his eyes and began to lift up his head and to look terribly on every one that stood round about him which the knight being informed of went presently to him in his arms which he never put off and speaking to him et Proditorem et falsum appellans quaerit si iterum audeat Duellum repetere Ille verò nec sensum nec spiritum habente respondendi â—lamatum est pugnam finitam et ut quisque ad propria remearet The Squire was carried to his bed senceless and died the next morning Here we have a Duel ordered by Parliament and the King and Lords Iudges in it not the Commons for a Treason done beyond the Seas not triable here by Law In the Parliament of 4 R. 2. n. 17. to 26. Sir Ralph Ferrers being arested for suspition of Treason on the borders of Scotland was brought into the Parliament before the Lords to answer the same where divers Letters under his hand and Seal as was pretended were produced and read against him sent to the Lord Admiral of France and other French Officers informing them that he in the behalf of the French had made a League and alliance with the Scots and desiring them to make payment of the monies promised him and of his own fee and inviting the French to invade England c. with discoveries of the Kings designs against the French and answers to them Sir Ralph desired Counsel in this case which was denied him These Letters were found by a beggar besides London divers of his familiars were called into the Parliament house before the Lords and likewise the beggar and the whole matter strictly examined The Letters sent by Sir Ralph to the parties beyond Seas and certain Letters sent by them in answer to his were all sealed together and all of one hand and the Seal larger than the Seal of the said Sir Ralph whereupon they seemed to be forged by some of his Enemies for his overthrow himself being once or twice urged to answer Whether the Letters were his or no answered that he did not remember they were his own Letters and that he was ready to approve as the Lords should think fit having formerly offered combate with any that would justifie it from which he was put In conclusion the Lords thought him to be innocent whereupon he was delivered to 4. Earls and 2. Lords who became pledges body for body to answer when he should be called between that and the next Parliament and so he was inlarged The Letters and his Seal were delivered to Sir John Cavendish Chief Justice of England and the beggar being thought privy to this falshood was committed to prison by THE LORDS In the Parliament of 5 R. 2. n. 44 45. Richard Clindow Esquire exhibited a Bill to
the King wherein he accused Sir William Cogan knight for extorting 300 l. by menaces from the Prior of St. Iohns Sir William appearing upon Summons prayed Counsel which was denied for that it concerned Treason whereupon he pleaded Not Guilty After which the same Parliament n. 46. to 61. The Mayor Baylifs and Commonalty of Cambridge were accused before the King and Lords that in the late insurrection they confederating with other Malefactors did break open the Treasury of the University of Cambridge burn sundry Charters of the University and compel the Chancellor and Scholars under their common Seal to release to the said Mayor and Burgesses all manner of Liberties real and personal actions and also to become bound to them in great sums of money Whereupon special writs were directed to the Mayor Baylifs and Commonalty to appear in Parliament to answer the premises The Mayor and Baylifs appear in person and plead that they 〈◊〉 not privy to any such act but if any thing was done it was by compulsion by others which the Kings learned Counsel disproved whereupon they pleaded Not Guilty The Commonalty appeared by Attorney and delivered in the Release and Bond of the University complained of under their Seal which were ordered to be cancelled After which the Chancellor and Scholars of the University exhibited Articles against the Mayor and Baylifs shewing their whole carriage and discourse in this tumult Upon reading whereof it was demanded of them in the Kings behalf What they could say why their Liberties lately confirmed should not be seised into the Kings hands as forfeited They thereupon required a Copy of the Articles Councel and respite to answer To the Copy of the Bill it was answered by the Lords that seeing they had heard it read it should suffice for by Law they ought to have no Copy For Councel it was said That to such articles if any were wherein Councel was to be had they should have it otherwise not Wherfore they were then appointed to answer to no crime or offence but only to their Liberties To which they answered by their Council That this Court ought not to have any Conusance or Jurisdiction of them for certain causes then alleged But at last they were ordered to say what they could otherwise they would give Iudgement against them as those who had nothing to say Whereupon they pleaded they did nothing but by Duress and constraint of the Rebels At last after many dilatory shifts touching their Liberties they wholly submitted themselves to the Kings mercy and grace saving their answer to other matters The KING therefore by the assent of the Prelates and Lords in Parliament â—o is the Rolâ— seised their Liberties into his hands as forfeited and by assent of the Lords and Prelates in Parliament granted to the Chancellor and Scholars the Assise and correction of bread weights measures and forestallers and fines thereof within the Town and Subâ—rbs of Cambridge which the Townsmen had before The King Lords and Prelates being Judges and giving the Judgement in this case of Commoners as the record a â—ge attests Walsingham relates that in a Parliament holden at London this year about the feast of St. John upon the Petition of the knights of Shires John Straw Captain of those in the insurrection at Bury and Myldenhale tractationi et suspentioni ADJUDICATUR to wit by the King and Lords licet multi putassent eum fuisse pecunia redimendum In the 7. year of R. 2. Rege vocante congregati sunt multi de Nobilibus Regni apud Rading to restrain the seditious motions of John de Northampton late Mayor of London qui ingenia facinora nisus est de quibus et convictus est ibidem his familiar Clerk accusing him both of divers practises and designes projected by him as well to the prejudice of the King as of the whole City of London and objecting them against him When Judgement was to be given against him in the Kings presence he pleaded that such a Judgement ought not to be given against him in the absence of the Duke his Lord whereby he raised a sinister suspition as well in the people AS NOBLES against the Duke of Lancaster The Justice who was to pronounce the Judgement told him He ought to refute his charge by Duel or by the Laws of the Realm to submit himself to drawing hanging and quartering At which when he stood mute and said nothing DECRETVM EST ut perpetuo carceri tradiretur et eâ—us bona regis usibus confisâ—arentur ut Londonias non appropinquaret per centum miliaria in vita sua whereupon he was sent prisoner to Tyntagel Castle in Cornwall and his goods seised on by the Kings Officers In the Parliament of 7 R. 2. holden at Westminster the Monday next before the feast of All Saints num 17. Bryers Cressingham and Iohn Spicâ—worth Esquires were accused before the LORDS for surrendring the Castle of Drinkham in Flanders to the kings enemies for money without consent of the kings Lieutenant Spickworth proved that the same was not in his custody and thereupon he was discharged Cressingham pleaded that he yeelded the same upon necessity without money and submitted himself to the Lords order who thought this no good cause and therefore committed him to prison The same Parliament n. 24 25. Sir William de Elinsham Sir Thomas Trivet Sir Henry de Ferriers and Sir William Farnden knights and Robert Fitz-Ralph Esquire were accused before the Lords in Parliament for selling the Castle of Burburgh with all the arms ammunition and provisions therein to the French the kings enemies for sundry summs of gold received by them of the French without authority from the king or his Lieutenant who pleaded they surrendred it for salvation of themselves and their people c. After all their excuses made they were upon consideration adjudged insufficient by the Lords and the Chancellor by their order pronounced this Judgement against them That they should repay all the monies they received from the Enemy to the King be committed to prison ransomed at the Kings will and moreover that Sir Will. de Farnden being the greatest Offender should be at the Kings mercy both for body and goods to do with them as he pleaseth In this Parliament there was a Duel fought between John Walsh an English Esquire and one of Navarr who accoused him of Treason against the King and Realm effectually but yet falsly out of envy Walsh having layen with his wife whiles he was under Captain of Cherburgh as he afterwards confessed This Dueâ— was fought within the lists in the presence of the King and Nobles of the Realm where this Navarrois being vanquished by Walsh REGALI JVDICIO tractus et suspensus est quanquam Regina et plures alii pro eo preces sedulas porrexissent In the 2. of Parliament of 7 R. 2. n. 13.10 19. John Cavendish a Fishmonger of London praying Surety of the peace
spiritual Cour◠for a temporal cause belonging to the Crown and Common Law which was adjudged by the Lords upon examination to be untrue To passe by the accusation of Sir Philip Courtney of divers hainous matters oppressions dissensions before the King and Lords in the Parliament of 16 R. 2. n. 6.13 14. of which more anon In the Parliament of 17 R. 2. n. 20 21. John Duke of Lancastre Steward and Thomas Duke of Gloucester Constable of England complained to the King that Sir Thomas Talbot Knight with other his adherents conspired the deaths of the said Dukes in divers parts of Cheshire as the same was confessed and well known and prayed That the Parliament might judge of the fault Whereupon the King and the Lords in Parliament without the Commons adjudged the said fact to be open and High Treason And thereupon they awarded two Writs to the Sherifs of Yorks and of Derby to take the body of the said Sir Thomas retornable in the Kings Bench in the month of Easter next ensuing And open Proclamation was made in Westminster Hall That upon the Sherifs retorn and at the next coming in of the said Sir Thomas he should be convicted of Treason and incurr the loss and pain of the same and that all such who should receive him after the Proclamation should receive the like losse and pain In the Parliament of 20 R. 2. n. 15 16 23. Sir Thomas Haxey Clark was by the King Lords in Parl. adjudged to die as a Traytor and to forfeit all his Lands Goods Chattels Offices and Livings for exhibiting to the House of Commons a scandalous Bill against the King and his Court for moderating the outragious expences of his Court by Bishops and Ladies c. Upon the Bishops intercession the King spared his life and delivered him into the custody of the Archbishop to remain as his Prisoner In the Parliament of 21 R. 2. n. 19 20. Pl. Parl. n. 2. to 15. The Lords Appellants appealed Sir Tho Mortimer Knight of High Treason for raising war against the King accroaching royal power and purposing to surrender his homage and allegiance and depose the King Who flying into the parts of Ireland thereupon the Lords in Parliament assigned him a certain day to come and render himself to the Law or else to be adjudged and proceeded against as a Traytor and Proclamation thereof was made accordingly in England and Ireland to render himself within 3 months And that after that time all his Abettors and Aiders should be reputed for and forfeit as Traytors He not coming at the day The Duke of Lancaster Steward of England by assent of the Lords in Parliament adjudged him a Traytor and that he should forfeit all his Lands in fee and see tayl together with all his Goods and Chattels The like Judgement in like manner was in the same Parliament given against Sir John Cobham Knight for the like Treason Placit Coronaen 16. On the 22 day of March 22 R. 2. n. 27. The King by assent of the Lords adjudged Sir Robert Plesington Knight then dead a Traytor for levying war against him with the Duke of Glocester at Harrengary for which he should lose all his Lands in fee or fee tayl and all his goods And n. 28. Henry Bowht Clerk for being of Counsel with the Duke of Hereford in his device was adjudged by the King and Lords to die and forfeit as a Traytor after which his life was pardoned and he banished In the Parliament of 1 H. 4. n. 79. As the Commons acknowledged that the Iudgements in Parliament had always of right belonged to the King and Lords and not unto the Commons So therein the King and Lords alone without the Commons gave Judgement in sundry cases as Judges in Parliament 1. In Sir Thomas Haxey his case who in his own name presented a Petition in this Parliament a nostre tresedoute seigniour le ROY a LES SEIGNIORS DU PARLIAMENT shewing that in the last Parliament of 21 R. 2. that he delivered a Bill to the Commons of the said Parliament for the honour and profit of the said King and of all the Realm for which Bill at the will of the King he was by the King and Lords adjudged a Traytor and to forfeit all that he had praying that the record of the said Judgement with the dependants thereupon might be vacated and nulled by them in this present Parliament as erronious and that he might be restored to all his degrees farms estate goods chattels ferms pensions lands tenements rents offices advow sons and possessions whatsoever and their appurt and enjoy them to him and his heirs notwithstanding the said Iudgement or any grant made of them by the King The Commons House exhibited a Petition likewise on his behalf to the like effect adding that this judgement given against him for delivering this Bill to the Commons in Parliament was eneontre droit et la course quel avoit estre use devant in Parlement en anientesment des Customs de◠le◠Communes Upon which Petitions Nostre Seignior le ROY de Induis assent des touz les Seigniors esperituelz et temporelz ad ordinez et adjudges que le dit juggement renus vers le dit Thomas in Parlement soit de tout casses revorses repellez et adnullez et tenus pur nul force n'effect et que le dit Thomas soit restitut a ses nom et fame c. nient obstant mesme le juggement 2ly In the case of Judge Rickhill 1 H· 4. n. 92. On the 18 of November the Commons prayed the King that Sir William Rickhill late Just of the Common Bench arrested for a Confession he had taken of the Duke of Gloucester at Calice might be brought to answer for it devant les Seigniors du Parlement whereupon he was brought into Parliament before the Kings presence and all the Lords spiritual and temporal and Commons assembled in Parliament where Sir Walter Clapton Chief Justice of the Kings Bench by the kings command examined the said Sir William how and by what warrant he went to Calice to the said Duke of Glocester and upon what message Who answered that king Richard sent him a special Writ into Kent there recited verbatim commanding him by the faith and allegiance whereby he was obliged to him and under pain of forfeiting all he had to goe unto Caleys And that at Dover he received a Commission from the said king by the hand of the Earl Marshal to confer with the Duke of Glocester and to hear whatsoever he would say or declare unto him and to certifie the king thereof in proper person wherever he should be fully and distinctly under his Seal Whereupon he went thither and took the said Dukes Examination in writing according to the purport of the said Commission a Copy whereof the Duke himself received c Upon the hearing of his answer and defence
Sautre being condemned of Heresie in the Convocation by Archbishop Arundel and the Clergy thereupon by order and advice of the Temporal Lords without the Prelates who must not have their hands in blood though they gave the Sentence that he should be burned or the Commons there issued out a Writ to the Sherifs of London for the burning of Sautre as an Heretick accordingly burnt thereon being the first writ of this Nature issued by the Lords alone in the Kings name before the Statute of Heresie was made and passed in this Parliament In the same Parliament of 2 H. 4. n. 30. The Temporal Lords by assent of the King adjudged and declared Sir Ralph Lumly Knight and others Traytors for levying war in sundry parts to destroy the K. his people and that they should forfeit all their lands in fee goods and chattels though they were slain in the field not arraigned nor indicted by reason thereof In the Parliament of 4 H. 4. n. 19 20 21. Sir Philip Courtney being complained against and convicted of a forcible entry into Lands and for a forcible imprisonment of the Abbot of Mâ—nthaem in Devonshire and two of his Monks was upon hearing and examination adjudged by the King and Lords to be bound to his good behaviour and for his contempt committed to the Tower of London prisoner Anno 1403. Henry Percy the younger confederating with Thomas Percy Earl of Worcester to raise forces â—nd rebel against the King sent Letters to the people of every County propositum quod assumpserant non esse contra suam ligeantiam et fidelit tem quam regi fecerant nec ab aliunde exercitum congregasse nisi pro salvatione personarum suarum reipublicae meliori guvernatione Quia census et Tallagia Regi concessa pro salva regni custodia covertebantur ut dixerunt in usus indebitos et inutiliter consumebantur praeterea querebantur quod propter aemulorum dilationes pessimas rex eis insensus fuerat ut non auderent personaliter venire ad ejus praesentiaem donec Praelati regnique Barones regi supplicassent pro eisdem ut coram Rege permitterentur declarare suam innocentiam per Pares suos legaliter justificari Plures igitur visis his literis collaudabant tantum virorum solertiam extollebant fidem quam erga Rempublicam praetendebant Having raised great forces against the King by this means which the kings forces encountred at Shrewsbury in a pitched battel Henry Percy and sundry of his adherents were there slain in the field and the rest routed For which levying of war in the Parliament of of 5 H. 4. n. 15. the said Henry Percy and his Coâ—federaâ—es were declared and adjudged Traytors by the King and Lords in full Parliament and their Lands goods and chaâ—tels confiscated In the same Parliament n. 18. At the Petition of the Commons The Lords â—enâ—ed and ordered that the Kings Confessor the Abbot of Dore Mr Richard Durham and Crosby of the Chamber should be removed out of the Kings house and Court whereupon 3. of them appearing before the King and Lords in Parliament the King though he excused them yet charged them to depart from his house for that they were hated of the people In the Parliament of 13 H. 4. n. 12 13. The Lord Roos complained against Robert Thirwit one of the Justices of the Kings Bench for withholding from him and his Tenants Common of Pasture and Turbâ—ry in Warbie in Lincolnshire and lying in wait with 500 men for the Lord Roos Thirwit before the King and Lords confessed his fault and submitted himself to their Order who appointed 3. Lords to end the difference who made an award between them that Thirwit shouâ—d confess his fault to the Lord Roos crave his pardon and tender him amends In the Parliament of 5 H. 5. n. 11. Sir John Oldcastle knight being outlawed of Treason in the Kings bench and excommunicated before the Archbishop of Canterbury for Heresie was brought before THE LORDS and having heard his conviction made no answer nor excuse thereto Upon which Record and Process THE LORDS ADJUDGED that he should be taken as a Traytor to the King and Realm carried to the Tower of London from thence drawn through the City to the new Gallows in St. Gyles without Temple-barr and there hanged and burned hanging which was accordingly executed Sir Iohn Mortymer knight being committed to the Tower upon supposition of Treason done against King Henry the 5. in the 1. year of H. 6. brake out of the Tower for which breach he was indicted of Treason being afterwards apprehended he was brought into the Parliament of 2 H. 6. n. 18. and upon the same Indictment then confirmed by assent of Parliament JUDGEMENT was given against him BY THE LORDS that he should be carried to the Tower drawn through London to Tiburn there to be hanged drawn and quartered his head to be set on London-bridge and his four quarters on the four Gates of London In the Parliament of 38 H. 6. n. 20 2â— 22. Sir William Oldham knight and Thomas Vaughan Esquire were attainted of Treason by the LORDS and in the Parliaments of 1 E. 4. n. 19. to 31. 4 E. 4. n. 28. to 38. â—4 E. 4. n. 34. to 40. sundry Knights Esquires Citizens and Commoners are attainted of Treason by the Lords for levying warr and holding forts against the King then after by Bill whose names are overtedious to reherse which you may peruse at leisure in the Exact Abridgement of the Records in the Tower To omit all other presidents of this Nature in the reigns of King H. 7.8 Ed. 6. Qu. Mary and Qu. Elizabeth of Commoners censured in and by the Lords house in Criminal causes upon impeachments complaints petitions which those who please may find recorded in the Journals of the Lords house I shall recite only some few Presidents more of late and present times In the Parliaments of 18. 21 Iacobi Sir Giles Mompesson and Sir Iohn Michel upon complaints and impeachments by the Commons for promoting Monopoliâ—s Corruption and other Misdemeanors were fined imprisoned by Judgement of the Lords House and Sir Giles degraded of his knighthood In the Parliament of 3. Carolâ— the Commons impeached Roger Manwaring Dr. of Divinity for preaching and printing Seditious and dangerous Sermons and sent up this Declaration against him to the Lords June 14. 1628. For the more effectual prevention of the apparent ruine and destruction of this kingdom which must necessarily ensue if the good and fundamental Laws and customs therein established should be brought into contempt and violated and that form of government thereby altered by which it hath been so long maintained in peace and happiness And to the honour of our Soveraign Lord the King and for the preservation of his Crown and Dignity the Commons in this present Parliament assembled do by this their Bill shew and
rather by the King with the Lords assent in Parliament or by Indictment in the Kings Bench as Sir Edward Cook himself confesses and proves by the Cases of Segrave St. Amand and others Placitae In Parliamento Dom. Regis 33 E. 1. The Bishop of Winchesters Case Pas 3 E. 3. coram Rege Rot. 9. attached for a contempt in departing from the Parliament during its sitting without the Kings license and contrary to the Kings inhibition in contempt of the King who pleaded that this contempt ought to be corrected and amended in Parliament by the Peers and not else where in any inferiour Court. 3 E. 3.19 Fitz Corone 161. Stanford f. 153 3 and 4 Phil. and Mar. B. R. rot 39. is most clear by 31 H. 6. n. 45 46. where special fines are taxed on absent Lords by the Lords assent Therefore the Commons House cannot fine or tax their Members as now they doe since they never did it before this act and therefore are prohibited by it which restrains them to ancient usage before it In 7 R. 2. The Lord Thomas Camoyes a Peer of the Realm being elected Knight of the Shire for Surrey by the Freeholders of the County the King himself discharged him by special Writ and commanded the Sherif to cause another fit person to be elected in his place as I formerly proved p. 139 145. I read in Thomas of Walsingham that King Richard the 3. in the 11 year of his reign intending to call a Parliament summoned all the Sherifs of England to Nottingham Castle inquiring of them What power they could raise for him in every County against the Barons and charging them ut ipsi nullum Militem dâ— Pago vel Schira permitterent eligi nisi quem Rex et ejus Concilium elegissent who it seems gave them a list of the Names of those persons they should elect and return as the Major Generals have newly done Whereunto the Sherifs answered That all the Commons favoured the Lords neither was it in their power to raise any Army or Forces in this cause De Militibus eligendis dixerunt Communes velle tenere consuetudines usitatas quae volunt quod à Communibus Milites eligantur Whereupon they were dismissed Upon this the King soon after issuing out Writs to the Sherifs to elect Knights and Burgesses for the Parliament inserted this unusual Clause into them that they should chuse such Knights as were most fit and discreet and in the modern debates between the king and Lords most indifferent as the Writs themselves attest Rex Vic. Kanc. salutem quia de avisamento Consilii nostri pro quibusdum arduis urgentibus negotiis nos statum et defensionem Regni nostri Angliae ac Ecclesiae Anglicanae contingentibus quoddam Parliamenâ—um nostrum apud Westm in crastino purificationis beatae Maâ—iae prox futur teneri Ordinavimus et ibidem vobiscum ac cum Praelatis Magnatibus Proceribus Regni nostri Angliae colloquium habere tractatum tibi praecipimus firmiter injungentes quod de Comitatu tuo duos Milites gladiis cinctos magis idoneos et discretos Com. praed et in debatis modernis magis indifferentes c. T. R. apud Wyndesore xvii die Dec. Per ipsum Regem But the King being soon after informed by his Council that these Writs were contrary to the antient form of elections and contrary to the Liberty of the Lords and Commons hitherto obtained sent out new writs to all Sherifs of England to revoke and repeal this Innovating Clause before the Elections made Rex Vic. Kanc 〈…〉 licet nuper per breve nostrum inter caetera tibi praecâ—pimus firmiter injungentes quod de Comitatu tuo duos Milites gladiis cinctos magis idoneos et discretâ—s Com. prad et 〈◊〉 debatis â—dernis magis indifferentes eligi 〈…〉 Parliamentum nostrum quod apud Westm in Crist 〈◊〉 purifiecationis bâ—atae Mariae proâ— futur tenâ—re Ordiâ—avimuâ— ad eâ—sdem idem 〈◊〉 veâ—ire facereâ— Nos tamen attendentâ—s dictam clausulam in debatis modernis magis indifferentes contra formam electionis antiquitus usitatae ac contra libertatem Dominorum et Communitatis Regni nostri Angliae hactenus obtentam existere Volenâ—esque proinde praedictos Milites libere eligi modo et forma prout antiquitus fieri consuerit Tibi praecimus firmiter inâ—ungentes quod de Com. tuo praedicto duos milites gladiis cinctos magis idoneos discretos Com. praedicti prout hactenus fieri consuevit eligi eos ad pradictos diem locum venire fac dicta clausula non obstante caeteraque omnia et singula in dicto brevi nostre contenta fac exequaris juxta tenorem ejusdem dictam clausulam penitus omittens Et habeas ibi hoc breve et aliud breve T. R. apud Westm primo die Jan. Per ipsum Regem et Consillum Consimilia brevia diriguntur singulis Vicocomitibus per Angl. Ac carissimo Aqunâ—ulo R. Johanni Regi Castell et-Legionis Duci Lancastr vel ejus Cancellar in eodem Ducatu sub eadem daâ—a A clear evidence that neither the Sherifs nor Commons house had any power to repell this new Clause but the King himself which here he did by his Councilâ— Apples before any complain against it in Parliament In the Parliament of 16 R. 2. n. 6. c. The Wednesday after the Parliament began Sir Philip Courtney returned by the Sherif of Devon for one of the Knights for that County came before the King in full Parliament and said that he understood how certain 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 until 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 return of the said Sherif for to counsel and doe that which belonged unto his office and afâ—er 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 fame The charge against him is expressed in the same Parliament roll n. 13 14. where two Petitions are preferred against him to THE KING and LORDS IN PARLIAMENT for putting Thomas Pontyngdon forciblyout of possession of the Maâ—or of Bygeloge without just cause and Richard Somestre out of other lands detaining them from them he being so powerfull in the County that no poor man durst to sue him Which Petitions were referred by consent in Parliament to certain Arbitrators to determine In the Parliament of 4 H.
of 26 H. 6. n. â— upon his excuse Whereupon William Tresham was elected in his place presented to and approved by the King n. 7. 5ly That when he is elected and approved yet in case of sickness and infirmity he may be removed and another chosen and presented in his place and that upon the Commons special Petition to the king in his behalf out of his meer Grace to discharge him and accept of another Thus in the Parliament of 1 H. 4. n. 62 63 64. Sir John Cheyney Knight after his election and approbation was discharged and Sir John Dorew Knight elected presented and admitmitted by the Kings license to be Speaker in his room So in the Parliament of 1 H. 5. n. n. 7 9 10.11 Will. Sturton Esquire after he was chosen and allowed Speaker was removed for grievous sickness and John Doreward chosen in his place At the Parliament holden 15 H. 6. n. 10 27. Sir John Tirril knight was chosen and allowed yet removed for grievous sickness and William Beerell chosen in his place and that by the Kings special license and approbation to whom all those new Speakers were again presented by the Commons for his royal assent thereto 6ly That if he be altered by his Majesty by assent of the Council Lords as the entry is in the Parliament Rolls then he maketh a protestation or Petition to the king which consisteth of three parts 1. That the Commons in this Parliament may have freedom of speech as of right and custom they have used and all their antient and just Privileges and Liberties allowed them which the King usually granted with this caution That he hoped or doubted not That the Members would not speak any unfitting words or abuse this freedom and privilege for abuse whereof some have been committed Prisoners to the Tower by our Kings and Queens command 2ly That if he shall commit any Error in any thing he shall deliver in the name of the Commons no fault may be imputed to the Commons and that he may resort again to them for declaration of his good intent and that his Error may be pardoned 3ly That as often as necessity for his Majesties service and the good of the Common-wealth shall require he may by direction of the House of Commons have access to his Majesty If then the King hath the sole power and jurisdiction thus to nominate approve confirm disallow refuse discharge and remove the very Speakers of the Commons House themselves and not the Commons but by and with his special license grace and royal assent yea to grant them freedom of speech and their usual Privileges and liberties every Parliament upon their Petition and to pardon theirs and their Speakers Errors and that sitting in the Lords House with their assents then doubtlesse the king and Lords alone are the sole Judges of the Speakers and all other Members of the Commons House and have the sole power to judge of their undue elections retorns misdemeanors breaches of Privileges and all other matters concerning their Membership not the Commons And if they can neither constitute elect nor remove their own Speaker for sickness or any other cause without the kings privity and consent declared in the House of Lords much lesse can they suspend seclude or eject any Member out of the House when chosen and returned by the Freeholders Citizens or Burgesses as their Attorny or Trustee in equal power with themselves without the Kings or Lords consents for any pretext of unfitness or undue election And if the king as Sir Edward Cook grants and these presidents prove may discharge the Speaker from his Office for grievous sickness and inability to discharge it I mak no question but he may likewise upon the like Petition of the Commons or Speaker discharge him of his attendance in the House or any other Member for the self same reason and grant a Writ to elect another able and fitting person in his place according to the opinion of 38 H. 8. Brooks Parliament 7. and Crompton in his Jurisdiction of Courts f. 16. approved by the whole House of Commons and accordingly practised in 38 H. 8. against Sir Edward Cooks bare opinion without reason to the contrary In the Parliament holden at Westminster 5 H. 4. rot Parl. n. 38. Thomas Thorp his Case Item because that the Writ of Summons of Parliament returned by the Sherif of Roteland was not sufficiently nor duly 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 therâ— shall be default found in this matter that such a punishment might be inflicted which might become exemplary to others to offend again in the like manner Whereupon 〈◊〉 said Lord the King in full Parliament commanded the Lords in Parliament to examine the said matter and to do therein as to them should seem best in their discretions And thereupon the said Lords caused to come before them in Parliament as well the said Sherifs at William Oneby who was returned by the said Sherif for one of the Knights of the said County and Thomas Thorp 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 Sherif And the said parties being duly examined and their reasons well considered in the said Parliament it was agreed by the said Lords that because the said Sherif had not made a sufficienâ— return 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 County for the Parliament and moreover that the said Sherif for this default shall be discharged of his Office any committed Prisoner to the Fleeâ— and that he should make sins and ransome at the Kings pleasures â—oâ— here the Lords in Parliament at the Commons request and by the Kings command examine and give judgement in case of an undue election and retorn even without the Commons In this same Parliament Richard Cheddar Esquire a menial servant and attendant on Sir Thomas Brook chosen one of the Knights to serve in Parliament for the County of Somerset was horribly beaten wounded blemished and maimed by one John Savage Whereupon the Commons complained thereof to the King and Lords petitioning them for redress both in his particular case for the present and all others of that nature for the future that they might make fine at the Kings 〈◊〉 and render double damages to the party maimed whether Members of theirs Servants Whereupon it was ordained and established by the King and Lords that for as 〈…〉 deed was done within the time of the said Parliament that Proclamation be made where it was done that the said John appear and yield himself in the Kings Bench within a quarter of a year after the Proclamation
or jurisdiction to enlarge him or to fine or imprison those who took him in Execution as of late times they have done And in this Parliament upon the petition and supplication of the Prelates and Clergy n. 32. the King by the assent and advice of the Lords enacted the Statute of 8 H. 6. c. 1. That the Clergy and their Attendants called to the Convocation by the Kings writ should have and enjoy for ever hereafter the same liberty and immunity in going coming and tarrying as the Great men and Commonalty of England called or to be called to the Kings Parliaments have used and enjoyed they complaining to the king that they and their servants coming to the Convocation were oftentimes and commonly arrested molested and inquieted Which they had no power to redress but only the King and Lords upon their complaints thereof In the Parliament of 18 H. 6. n. 13. It was shewed to the King and the Lords Spiritual Temporal that Gilbert Hore Sherif of the County of Cambridge upon the kings writ directed to him to chuse 2. knights for that shire had made no return of any knights for that County for certain reasons therein expressed Whereupon the King by advice and assent of the Lords Spiritual and Temporal not the Commons house alone as now nor yet joyntly with them ordered that a New writ for electing 2. knights for that County should be directed to him and that he should make proclamation that no person should come to the election with arms or arrayed in warlike manner in disturbance of the said election and breach of the kings peace A memorable president of the Kings and Lords Jurisdiction even in point of elections In the Parliament of 23 H. 6. n. 41. The Commons petitioned the king that by the advice and assent of the Lords Spiritual and Temporal and at their special request it might be enacted that every Member of the Lords and Commons house who should have any assault or affray made upon him being at the Parliament or going to or coming from thence might have the like remedy at Sir Thomas Parr knight had given him in this Parliament to wit upon petition of the Commons in his behalf to the King and Lords being the same as was enacted in Chedders case 11 H. 6. c. 11. before Whereunto the king answered The Statutes therefore made shall be observed In the Parliament of 31 H. 6. rot parl n. 25 26 27 28. we have this memorable famous case touching privilege of Parliament in their very Speakers own case resolved by the Lords Thomas Thorp chief Baron was chosen Speaker of the Parliament after his election and before the Parliament which was prorogued sat he was arrested and taken in execution at the sute of the Duke of York whereupon some of the Commons were sent up by the House to the king and Lords spiritual and temporal sitting in Parliament desiring that they might enjoy all their ancient and accustomed privileges in being free from arrests and propounded the case of Thomas Thorp their Speaker to them desiring his inlargement whereupon the said Lords spiritual aad temporal not intending to hurt or impeach the privilege of the Commons but equally after the course 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 privilege 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 that question for it hath not been used aforetime that the Justices should in any wise determine the privilege of this high Court of Parliament 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 their privilege belongeth to the Lords of the Parliament and not to the Justices But as for declaration of proceedings in the lower Courts in such cases as writs of Supersedoas of Privilege of Parliament be brought and delivered the said chief Justice said that there be many and divers Supersedeas of privileges of Parliament brought into the Courts but there is no general Supersedeas brought to furcease all Processes for if there should be it should seem that this high Court of Parliament that ministreth all Justice and equity should let the process of the common Laws and so it should put the party plainant without remedy for so much as 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 freedom and Liberty freely to attend upon the Parliament After which answer and Declaration it was throughly agréed assented and concluded by the Lords Spiritual and Temporal that the said Thomas according to the Law should remain still in prison for the causes abovesaid the privilege 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 comen 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 premiâ—es for as much as they were matters of Law by the commandement of the Lords were opened and declared to the Commons by the mouth of Walter Moyle one of the kings Sergeants at Law in the presence of the Bishop of Ely accompanyed 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 take good and effectual conclusion and end Whereupon the 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 by assent of the Lords Lo here 1. the Lords Spiritual and Temporal are the sole Judges of the privilege of the very Speaker of the House of Commons who is here adjudged to remain in execution notwithstanding their petition for his enlargement 2ly The whole House of Commons could not then send for nor yet enlarge their own Speaker when imprisoned
l. 1. p. 7. †31 H. 6. c. 1. 39 H. 6. c. 1. (e) In Eutropium l. 1 p. 67. (f) Nubtigensis l. 4. c. 14. (g) See Walsingham Holinshed Speed Stowes Survey of London Trussel Grafton (h) Sleidens Comment l. 7.11 Munsteri Cosmogr l. 3. c. 142. David Chyrraeus Chron. Saxoniae l. 12 13 14. (i) See the Animadversions on the Welsh Remonstrance and answer to Killing no Murder * As at first propounded voted and urged at several conferences See their Declarations and Papers of Feb. and March 17 and 19 1648. (l) Polydor Virgil Speed Holinshed in Anno 1216. See here p. 165. Iudge Dodderidge Mr. Agar Mr. Cambden Joseph Holland in their Treatises of the Antiquity of the Parliaments of England p. 18 19 20 40. 85 87. Sir Walter Raleigh his Prerogative of the Parliaments of England p. 2 3. The Freeholders Grand Inquest p. 13 14. (m) 4 Institutes p. 12. * See Walsingham Hist Angl. Anno 1 H. 4. p. 402. DOMINI in praesenti Parliamento Regis ASSENSU IUDICANT DECERNUNT c. ulterius DOMINI TEMPORALES REGIS ASSENSU IUDICANT DECERNUNT c. (n) Exact Collection p. 321. * Here p. 147. to 161. (2) 1 Instit f. 9 b. 10 b. See 4 Instit p. 6 7. 44 45 46. (3) Seldens Titles of Honor p. 745 746 747 748 749. (4) See my 1. Table to an Exact abridgment c the writs of summons in that abridgement (5) An Exact abridgement p. 549 558 633 636 637 639 640 640. 645 648 649 655 660 661 668. * An Exact abridgement p. 637. Seldens Titles of Honor p. 745. (6) Fitz. N. Brev. f. 165. e. †Num. 16.22 c. 27.16 * Luke 19.42 * Walsingh Trussel Hall Fabian Holinshed Grafton Speed Baker Stow and others * Gal. 3.1 c. 4.15 †Hab. 1.6 9 10 †Ezech. 2.3 to 9. * Nihil est veritatis luce dulcius Cicero Ac. Quaest l. 3. †Prov. 28.23 (c) Deut. 10.17 Psal 136.3 1 Tim. 6.15 Rev. 17.14 c. 19.8 (d) Deut. 31.4 Psal 31.5 Ier. 5.3 Isay 56.24 15. (a) A Remonstrance of many thousand Citizens to their own House of Commons p. 6. The just mans Justification p. 10. Regal Tyranny Discovered A Declaration from his Excellency the General Councel of the Army Jan. 11. 1647. p. 7. Speeches c. at a Conference newly published by Walker printed verbatim out of Dolman the Jesuit his Book condemned formerly as treasonable (b) Regal Tyranny discovered Lilburns Just Man in Bonds p. 1 2. A Pearl in a Dunghil The Free-mans Freedom 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 Bowels of the House of Lords his Petition and Appeal 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. (c) Overtons Petition and Appeal to the High and Mighty States the Knights and Burgesses in Parliament assembled Englands legal Soveraign Power The Remonstrance of many thousands to their own House of Commons A printed Petition now in agitation of many Free-born people to the only Supreme Power of this Realm 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. * See M. Edwards Gangraena part 3. where this is fully demonstrated (d) Lilburns Letter to a friend Innocency Truth justified and his late Letters to Cromwell H. Martin Sir Thomas Fairfax and others Englands Birthright Englands lamentable Slavery Another word to the wise Comparata Comparandis Liberty against Slavery The Arraignment of Persecution The Ordinance against Tithes unmounted See M. Edwards Gangraena part 3. p. 109. to 204. (e) See the several Remonstrances from his Excellency and the Army from June til December last 1647. and since in November and January 1648. The Agreement of the people the grand Design Putney Projects (f) Overtons Defiance against all arbitrary usurpation of the House of Lords p. 5 6 15 17 18. his Arrow against all Tyrants p. 6.10 11 12. and others forecited a. b. * See my Historical Collection of the antient Parliaments and Great Councils of England (g) Epist to his 9. Report Institutes on Littleton p. 110.4 Instit c. 1. (h) M. Seldens Titles of Honour part 2. ch 5. where this is abundantly manifested Spelmanni Concil Tom. 1. Truth triumphing over Falshood Antiquity over Novelty p. 36 c. The Freeholders Grand Inquest p. 4. to 20. * See 1 Chro. 19.3 2 Chron 12. c. 6. c. 24.17 c. 32.3 Num. 10.4 Josh 9.15 c. c. 17.4 Num. 32.2 c. 21. (i) See M. Seldens Titles of Honour p. 2. ch 5. 14 E. 3. n. 35. 9 R. 2. n. 16. 20 R. 2. n. 16. 20 R 2. n. 80. 1 H. 4. n. 81. Cooks 3. Instit f. 9.16 with many more (k) 5 R. 2. Star 2. c. 4. 31 H. 8. c. 10. (l) See Litt. c. 10. Sect. 162 164. Cook Ibidem 49 Ass 8. (m) Cook 4. Instit c. 1. Cromptons Jurisdiction of Courts c. 1. * 1 R. 2. c. 4. 8 H. 4. c. 14. 8 H. 5. c. 7. 32 H. 6. c. 15. 1 H. 5. c. 3. ◠1 H. 7.12 2 H. 7.3 2. 5 H. 7. 9 H. 7. 12. 14 H. 6.12 7 E. 4.14 15 E. 15. Cook 1. Instit 250. a. Brook Tit. Parliament Corporations * Psal 47.2 6 7. Ps 95.3 Psal 98.6 Psal 103.19 (n) Exod. 3. 4. 7. (o) Deut. 3 28. Num. 27.16 to 23. Deut. 31.3 to 9.14.23 c. 34 9. Iosh 1. (p) Neh. c. 2. c. (q) 1 Sam. 9.16 c. 10.1.21 Acts 13.21 (r) Psal 78.70 71 72. 1 Sam. 16.2 Sam. 7 8. Acts 13.22 (ſ) 1 Chron. 23.1 c. 28.5 6. 2 Chr. 1.8 (t) 2 Chron. 14.1 c. 17.1 c. 28.27 c. 29. 1. Acts 13.20 21 22. * 2 Sam. 7.12 Psal 132.11 12. 2 Sam. 10.1 1 Kings 14 20.35 c. 15.8.24 c. 16.6.28 c. 22.40 2. Kings 1.17 c. 3.27 c. 8.24 c. 10.35 c. 12.21 c. 13.3.24 c. 14.16.29 c. 15 7.22.38 c. 16.20 c. 19.37 c. 20.21 c. 21.26 c. 24.6 1 Chron. 29.28 2 Chron. 12.16 c. 14.1 c. 17.1 c. 21.1 c. 22.1 c. 23.3 c. 24.27 c. 1.23 c. 27.9 c. 28.27 c. 32.33 c. 33.20.25 c. 36. 1 Jer. 22.11 Isay 19.11 c. 37.38 Matth. 2.2 (v) Num. 11.16 17 24 25 26 27. (x) 1 Chron. 18.15.16 17 c. 26.29 30 31 32. c. 27. c. 28 1. Exod. 18.25 26. 2 Chron. 19.5 to 7. * Iudg. 3.9.15 c. 2.16 Acts 13.20 Num. 27.15 to 23. Exod. 18.25 26. Num. 1.4 to 18. 1 Sam. 8.1 1 Chron. 26.30 32. 2 Chr. 19.5 to the end (y] Gen. 40.40 41 c. Exod. 18.25 Psal 105.21 Acts 8.10 (z) Esther 8. 10 [a] Dan. 2.48 49. [b]
of England without any election by or Commission from the people with the true grounds thereof 2ly That the judicial power Judicature and Jugdements in Parliament belong wholly and soly to the King and House of Lords not to the Commons House and that in all criminal civil or ecclesiastical causes whatsoever proper for Parliaments to decide both in the Cases of Commoners and Clergy men as well as Peers who are onely triable both in and out of Parliaments by their Peers here plentifully evinced In debating these two points I have briefly proved the Antiquity of our Lords and Nobles sitting â—oting in all Parliamentary Great Councils both under our British Saxon Danish Norman and English Kings before any Knights Citizens or Burgesses were admitted into our Councils or Parliaments which having more particularly demonstrated by undeniable presidents in my Historical Collection of all the antient Great Councils and Parliaments of England in my Antiquity triumphing over Novelty p. 9 10.55 to 85. and in my 1 2 3. parts of an Historical Seasonable Vindication and Collection of the fundamental Rights Privileges Laws c. of all English Freemen printed 1655. 1656. 1657. wherein all the Great Councils and Parliamentary assemblies from Brute to William the Conquerer are Chronologically collected and epitomized I shall referr the Reader thereunto for full satisfaction of the Antiquity of our Parliamentary Councils and the Lords constant sitting voting judging in them 2ly Because many of our late Historians Antiquaries Lawyers and others derive our Parliament as now constituted and the calling of Knights Citizens and Burgesses to them from the Parliamentary Council held at Salisbury in the 16. year of King Henry the 1. or at least from King Henry the 2. his reign which the forged Imposture stiled Modus tenendi Parliamentum and Sir Edward Cook seduced by it would advance as high as Edward the Confessor as if there had been Knights Citizens and Burgesses usually summoned to all Parliaments in his reign and ever since I have herein given you an account out of our antientest and best Historians of all the Parliaments and Proceedings in them both under King Henry the 1. 2. and most others under their immediate Successors infallibly proving there were no Knights Citizens and Burgesses in the Parliaments held under either of them and that their first summons to Parliaments for ought appears was but in 49 H. 3. not before since which they have been usually summoned but yet in a various manner 3ly I have evidenced by many memorable Histories Presidents Records in all ages the most whereof were never mentioned by any who have formerly written of Parliaments that the Judicature in our Parliaments resides solely in the King and House Lords not only in all Criminal cases of Lords Peers Commons and in all Civil and ecclesiastical businesses Appeals and Writs of Error there descided but likewise in all cases of Elections breach or allowance of privilege of Parliament and misdemeanours relating to the House of Commons themselves their Speakers Members and menial Servants To which I shall only add That the late King in his printed Answer to the 19. Propositions of both Houses June 1642. thus declares That the LORDS being trusted with a Iudicatory power are an excellent Screen and Bank between the Prince and People to assist each against any incroachments of the other and by just judgements to preserve that Law which ought to be the Rule betwéen every one of the thrée 4ly I have herein for the benefit of all Students Professors of the Law and others who take all Sir Edward Cooks Opinions Records for undoubted Oracles without examination and swallow down all his mistakes discovered many of his gross Errors oversights misrecitals and pervertings of Records in matters relating to our Parliaments evidenced his much magnified Modus tenendi Parliamentum to be a meer late Imposture full of mistakes concerning the Antiquity and Judicature of the Commons House and refuted Sir Edward Cooks mistaken Law as in other points so in this That the Kings general writ of summons to any Knight or Esquire to the House of Lords by the name of Knight or Esquire without any special clause of creating him a Baron or Lord in the Writ doth neither ennoble himself nor his heirs nor make them Lords and Barons though they sit in the Lords House as he asserts it doth unless they held by Barony of the King before and were Barons by their Tenure the general writs of summons stiling them only Knights and Esquires as before not Lords or Barons and having no clause in them that will amount to the creation of a Lord much less of a Baron which Title or word Baron is not mentioned in the Writ nor doth it affix their Lordship or Barony to any particular place as all Writs and Patents that create men Lords or Barons use to do For the further clearing of this point you may observe that the writs of summons in the Clause Rolls do sometimes stile the persons summoned Barons thus all or most of the writs of summons from 25. E. 3. to 1 E. 4. are directed Willielmo Baroni de Graystocke Chivaler Radulpho Johanni Radulpho Baroni de Graystocke Sometimes the writs stile them Lords as Johanni Talbot Domino de Furnival in 4 H. 5 c. In Ann 25 27 28 29 31 33 38 H. 6. and 2 E. 4. the writs are Henrico Peircy DOMINO de Poymiger DOMINO de Poynings DOMINO de FERRARIIS de Groby Thomae DOMINO de Roos Richardo Woodvil Militi DOMINO de Rivers Roberto Hungerford Mil DOMINO de Mollings Willielmo Beuchamp DOMINO de Sto Amando Jacobo de Fynes DOMINO de Say et Seal Edwardo Gray Mil. DOMINO de Groby H. DOMINO de Poynings Johanni Sturton Mil. DOMINO de Sturton Johanni DOMINO de Clinton Edoardo Nevil DOMINO de Burgaveny Willielmo Bourchier Mil. DOMINO de Fitzwarren Henrico Bromflet DOMINO de VESSEY Thomae Grey DOMINO de Richmond Tho. Percie Mil. DOMINO de Egremont Ricardo Wells DOMINO de Willoughby Mil Richardo Fynes DOMINO de Dacre Though in most antient and later writs the word Dominus is omitted and the name of the Barony only used Somtimes there is a special clause of Creation in the writ it self as in Clause 27 H. 6. m. 26. dorso Henrico Bromfleet Mil creaâ—ing him the heirs males of his body lawfully begotten Barons of Vessey These writs which thus stile thâ— Barons Lords create them such by special clauses as patents doe will make those Knights and Esquires Lords or Barons who were none before but a General writ which terms them only Knights or Esquires and gives them neither the Title of Lords or Barons nor creates them such cannot make themselves or their posterity Lords or Barons unless they held by Barony and then they are Barons only by Tenure not Writ This is clear as I conceive by the
heretofore or to any Judges Justices Governours Generals Captains or other Militarie Officers made by their Commissions or appointment without the generality of the peoples Votes or consent especially when above half or three full parts of the Members were absent or driven from both Houses by the Objectors violence and menaces These Answers premised which have cut off the head of the Objectors Goliah and chief Argument against the Lords sitting in Parliament I shall now proceed to the proof of the Lords undeniable Right and Authority to sit Vote and give Judgement in our Parliaments though not actually elected nor sent to them by the people as Knights and Burgesses are 1. It is evident by the Histories Records of most antient and modern Kingdoms and Republikes in the world that their Princes Nobles Peers and great Officers of State have by their Original Fundamental Laws and Institutions by right of their very Nobility Peerage and great Offices without any particular election of the people a just right and title to sit consult Vote enact Laws and give Judgement in all their General Assemblies of State Parliaments Diets Councels as might be manifested by particular instances in the Kingdoms Republikes Parliaments Diets and General Assemblies of the Jews Aegyptians Grecians Romans Persians Ethiopians Germans French Goths Vandals Hungarians Bohemians Polonians Russians Swedes Scythians Tartars Moors Indians Spaniards Portugals Danes Saxons Scots Irish and many others Hence Dionysius Halicarnasseus Antiquitatum Romanorum l. 2. Sect. 2. affirms That both hereditary and elective Kings even in the antientest times CONSILIUM HABEBANT QUOD EX OPTIMATIbVS CONSTABAT had a Council which consisted of Nobles and Great men as Homer and the most antient Poets attest Neque ut nostro seculo Regum priscorum dominatus erat nimium sui juris neque ab unius sententia pendebat Now to deny the like privilege to our English Peers and Nobles which all Nobles Peers in all other Kingdoms Nations Republikes antiently have enjoyed and yet doe constantly enjoy without exceptions or dispute is a gross injury injustice over-sight yea a great dishonour both to our Nobility and Nation Secondly By and in the very primitive constitution of our English Parliaments for many hundred years together there were no Knights nor Burgesses at all but only the King and his Nobles after which when elected Knights gestes were first sent to Parliament about 49 H. 3. it was granted by the Kings grace and unanimously agreed by the kingdoms peoples general consents that our Parliaments should alwayes be constituted and made up not of Knights and Burgesses only elected only by Freeholders Burgesses not by the generality of the vulgar people who would now claim usurp this right of Election but likewise of the King the Supreme Member by whose writs the Parliaments were and ought to be alwayes summoned and of the Lords Peers Barons ecclesiastical civil and great Officers of the Realm who ought of right to sit vote make Laws and give Judgement in Parliament by vertue of their Peerage Baronies Offices without any election of the people the Commons themselves being no Parliament judicatorie or Law-givers alone without the King and Lords as Modus tenendi Parliamentorum Sir Ed. Cook in his 4. Institutes ch 1. Mr. Seldens Titles of Honour part 2. ch 5. Vowell Cambden Sir Thomas Smith Cowell Minshaw Crompton with others who have written of our English Parliaments assert and all our Parliament Rolls Statutes Law-books resolve without whose threefold concurrent assents there is or can be no legal Act nor Ordinance of Parliament made since the Commons admission to vote in Parliament and assent to Bills which was but of later times out of the Kings frâ—e Grace Thirdly This right of theirs is confirmed by prescription and custom from the very first beginning of Parliaments in this kingdom till this present there being no president to be found in History or Record of any one Parliament held in this Island since it was a kingdom without the King personally or representatively present by a Protector Custos Regni Commissioners as he ought to be or without Lords and Peers antiently stiled Aldermen Heretockes Senators Wisemen Princes Dukes Earls Counts Nobles Great men c. by our Historians who make mention of their constant resorting to sitting voting judging in our General Assemblies and Parliamentary Councils under these Titles without the peoples Election for many hundreds of years before the Conquerors time in the antientest Parliamentary Councils we read of under the Britons and Saxons witness Beda Ingulphus Geoffry Monmouth Huntingdon Matthew Westminster Florentius Wigorniensis Malmsbury Hector Boetius Speed and others in their Histories Antiquitates Ecclesiae Britannicae Spelmanni Concilia Tom 1. Mr. Lambard his Archaion Sir Edward Cook in his Preface to the 9. Report and fourth Institut c. 1. M. Seldens Titles of Honor part 2. c. 5. which I have largely manifested in my Truth triumphing over Falshood Antiquity over Novelty p. 56. to 90. My Historical Collection of the antient Great Councils Parliaments c there being little if any express or direct mention at all of any Knights of Shires Citizens or Burgesses in any of our Parliamentarie Councils before the Conquest or in the Conquerors time nor yet in the reigns of King William Rufus Henry the 1. Stephen Henry 2. Richard 1. King John or first part of the reign of Henry the 3d the first direct Writ of Summons for any Knights Burgesses or Commons to our Parliaments now extant being that of Clause 49 H. 3. m. 10 11. dorso before which no evident testimony can be produced for their sitting or voting in any great Councils or Parliaments as Members but onely out of the Spurious pretended antient though in truth late ridiculous Treatise stiled Modus tenendi Parliamentum on which Sir Edward Cook and others most rely And whereas some conclude that even in the antient Saxon Great Councils the Commons were usually present as Members being comprehended under the Titles of Sapientes Seniores populi Aeldermanni c. which in the dialect of those times signifie rather Lords and Great Men than Commons or Burgesses as all accord or at least wise under these phrases praesentibus omnibus Ordinibus illius Gentis cum viris quibusdam Militaribus rather Soldiers than knights of which we find mention in the Council of Bechenceld Ann. 697. or omnium Sapientum Seniorum POPULORUM totius Regni coupled with these pre-eminent Titles of Omnium Aldermannorum Principum Procerum Comitum who met together in a General Council under Ine Anno 713. Or cujuscunque Ordinis viros in the Council of Clovesho An. 800. which expressions are now and then mentioned in some antient Councils and Parliaments though rarely yet these are rather conjectural or probable than direct or punctual proofs of what they assert whenas the Lords Title to sit and vote in them is most direct and infallible And
were first made never sate in Parliament Whereas this writ hath no operation or effect to enoble him or his posterity unless and until he actually sit in Parliament for if he die before he sit or sit not at all neither he nor his issue are Noble This distinction and concession of his contradicts his former opinion That the Writ it self doth not ennoble the person and his heirs for if it did then he and they should be ennobled by it though he died before he â—aâ—e in Parliament because they are thus ennobled by Letters Patents which create them Nobles or Peers and make them actually such though they never sit in Parliament 7ly Sir Edward Cook in his 4 Institutes p. 44 45. thus resolves If the King by his Writ calleth any Knight or Esquire to be a Lord of the Parliament he cannot refuse to serve the King there in communi illo confilio for the good of his Country But if the King had called an Abbot Peer or other regular Prelate by Writ to the Parliament to the Common Council of the Realm if he held not of the King per Baroniam he might refuse to sit in Parliament because quoad secularia he was mortuus in lege and therefore not capable to have a voice or place in Parliament unless he did hold per Baroniam and were to that Common Council called by Writ which made him capable And though such a Prelate regular had been often called by Writ and had de facto had place and voice in Parliament yet if in rei veritate he hold not per Baroniam HE OUGHT TO BE DISCHARGED OF THAT SERVICE AND TO SIT NO MORE For that the Abby of Leicester was founded by Robert Fitz Robert Earl of Leicester albeit the Patronage came to the Crown by the forfeiture of Simon de Mountford Earl of Leicester yet being of a Subjects foundation it could not be holden per Baroniam therefore the Abbot had no capacity to be called to the Parliament and thereupon the King did grant Quod idem Abbas successores sui de veniendo ad Parliamentum Concilia nostra vel haeredum nostrorum quieâ—i sint exonerati in perpetuum But all these Cases abovesaid and others that might be remembred touching this point as little Rivers do flow from the fountain of Modus tenendi Parliamentum where it is said Ad Parliamentum summoneri venire debent ratione tenurae suae omnes singuli Archiepiscopi Episcopi Abbates Barones Priores alii Majores Cleri qui tenent PER COMITATUM VEL BARONIAM ratione hujusmodi tenurae nulli minores nisi eorum praesentia necessaria utilis reputetur To which purpose he likewise cites the Act of Parliament of 10 H. 2. called the Assize of Clarindon and the Great Charter of King John in the 17 year of his reign here forecited p. 21 30 31. For Modus tenendi Parliamentum here so much magnified I have already p. 20 sufficiently discovered it to be a late forgery and imposture out of the very Treatise it self by undeniable proofs which I wonder Sir Ed. Cook Mr. Agar and other pretended judicious Antiquaries observed nor being so obvious yet though it be an imposture and erronious in other things I shall grant it true in this particular here cited As to the point in controversie had Sir Ed. Cook here thus distinguished in the case of Laymen Knights Esquires as he doth in case of Abbots Priors and Religious persons that if the King had by his Writ called any Laymen Knight ot Esquire to the Lords House of Parliament by his general Writ who held of him in fee or fee tayl per Baroniam and was a Baron by tenure that this had enobled him and his posterity as Barons he could not refuse to serve the King as a Baron in this Common Councel for the good of his Country his opinion might have passed for good Law For such who had lands in fee or fee tayl of the King by an intire Barony being Barons and Peers of the Realm by their very tenures ought of right by the express words of the Statute of Clarindon the Great Charter of King John and by the Common Law and Custom of the Realm to be summoned as Barons by the Kings special writs directed to them to all Parliaments and great Councils of the Realm by vertue of their Tenures as well as Bishops Abbots Peers and other regular Prelates who held by Barony yet the writ in this case doth not make them and their heirs Barons by writ nor give them a right to sit and vote in Parliament but only declare them and their heirs to be Barons and to sit there as Barons by their Tenure not by vertue of the Writ it self But if the King by this general Writ summon any Layman Knight or Esquire to the Lords House who holds not by Barony this doth no more make him a Lord or Baron in perpetuity to him and his heirs nor no more oblige him or his heirs to sit there than Abbots but that they may refuse to serve in Parliam if he were no Peer before being not obliged by any Law to sit and serve therein as a Baron or Member of the House of Peers by the Writ alone which doth not bind an Abbot Prior or regular Prelate or ennoble him and his Successors to be Peers and Barons of the Realm though they hold only by Frankalmoign not by Barony the Tenure By Barony being that alone which obligeth both of them to sit and serve in Parliament unlesse they be created Dukes Earls Viscounts Lords Peers or Barons by Patent or else by a special Wrir wherein the estate and dignity of a Baron is both created and limited as in the Writ that created Sir Henry de Bromflet Baron of Vescey in the 27 year of King Henry the 6 where after the Nullatenus omittatiâ— this Clâ—se is inserted Volumus enim vos haeredes vestros maâ—culos de corpore vestro legitime exeuntes BARONES DE UESCY EXISTERE Teste c. If a Layman who holds not by Barony be created a Duke Earl Baron or other Peer of the Realm for life in tayl or in fee by Letters Patents or an Abbot or Prior who holds not by Barony and his Successors be created Lords of Parliament by a special Patent of the King as Richard Banham Abbot of Tavestoke and his Successors were bâ— King Hen. the 8. to whom the King granâ—ed by special words Ut eorum quilibet qui pro tempore fuerit Abbâ—s sit erit unus de Spiritualâ—bus religiosis DOMINIS PARLIAMENTI NOSTRI haeredum successorum nostrorum gaudendo honoreâ— Privilegio libertaribus ejusdem This obligeth them to appear and serve in Parliament upon every Writ of Summons and they their heirs males and Successors cannot refuse to serve or voluntarily absent themselves without cause or license under pain of being fined
Earl of Ireland Mâ—chael de la Poole Earl of Suffolk Robert Tresylam Chief Justice Nicholas Bramber Knight and other of their adherents of High Treason against the King and his Realm The Articles they exhibited against them were 36 in number at large recorded in Henry de Knyghton de Eventibus Angliae l. 5. col 2713. to 2727. with the whole proceedings thereupon for which many were attainted condemned executed BY JUDGEMENT OF THE LORDS notwithstanding the Kings intercession for some of them to the LORDS they are likewise mentioned in the printed Statutes at large of 11 R. 2. c. 1 3 4. in Walsingham Hist Angliae p. 359 to 367. and other vulgar Historians I shall therefore for brevity refer you to them Exactum est juramentum a rege ad standum REGULATIONI PROCERUM et non solum a rege sed a cunctis regni incolis idem juramentum est expetitum In the Parliament of 14 R. 2. n. 14. The King and Lords without the Commons declared That in the 7 year of this King the Earldom of Richmond with the appartenances WERE ADJUDGED BY THE KING AND LORDS to be forfeited to the King by reason of the adherence of John Duke of Britain then Earl of Richmond to the French against his allegiance to the King and his father king Edward the 3. which judgement was not then enrolled in the Rolls of Parliament for certain causes known to the King and LORDS but was now inrolled and the lands granted to the Earl of Westmerland which King Henry the 4th would not revoke upon the Commons Petition to restore them to the Duke 1 H. 4. rot Parl. n. 78. In the Parliament of 17 R. 2. n. 11 Richard Earl of Arundel in the presence of the KING and LORDS accused the Duke of Lancastre of 5 particular misdemeanors In which when the King had justified him it was awarded by the King BY THE ASSENTS OF ALL THE LORDS that the Earl should in full Parliament make a formal submission to the Duke and crave pardon for his false accusation In the Parliament of 21 R. 2. rot Parl. n. 12. to 17. the Commons impeached Thomas Arundel Archbishop of Canterbury of high Treason for procuring the Duke of Glocester and others there named to accroach to themselves regal power and execute the Commission of 10 R. 2. when he was Chancellor praying that he might be kept under safe custody with a protestation of making for her accusations during the Parliament against him and others After which they prayed the King to give judgement against the Archbishop according to his desert who submitted himself to the Kings mercy Whereupon the KING LORDS and Sir Thomas Piercy the general Proctor for the Bishops in this case adjudged the fact of the Archbishop to be Treason and himself a Traytor and that thereupon he should be banished his temporalties seised and all his lands in proper possession or use together with his goods forfeited to the King and presenting the day and place of his departure into exile After this in the same Parliament of 21 R. 2. the Lords Appellant therein named accused the Duke of Glocester the Earls of Arundel and Warwick and others of High Treason for procuring the Commission in 10 R. 2. for raising forces and coming to the Kings person armed For accroching to themselves royal power and adjudging some to death and executing them as Traytors in the Parliament of 11 R. 2. For intending to surrender up their Homage and allegeance to the King and then to depose him and saying they had good cause to depose him c. Hereupon the Earl of Arundel being brought in custody to the Parliament before the Lords by the Kings command and assent of the Lords had his charge read and declared before him by the Duke of Lancaster Steward of England to which he pleaded his pardon which plea being disallowed because his pardon was revoked by this Parliament and he relying on it without any other plea the Lords appellants prayed judgement against him as convict of the Treasons aforesaid Whereupon the Duke of Lancaster by assent of the KING Bishops Earles and LORDS adjudged him convict of the Articles aforesaid and thereby a Traytor to the King and Realm and that he should be therefore hanged drawn and quartered and forfeit all his Lands in fee or fee-tayl which he had in the 10. year of this King with all his goods and chattels But for that he was come of Noble bloud the King pardoned his execution of hanging drawing and quartering and granted that he should be beheaded which was accordingly executed the same day on Tower hill by the Marshal of England The 28. of September the Earl of Warwick was brought ao his Trial in the same manner as the Earl of Arundel who confessed all the Articles submitted to the Kings grace and had the same judgement pronounced against him in the same manner as the Earl of Arundel But the King at the Lords Appellants and others requests pardoned his execution granted him his life and banished him into the Isle of Man The Duke of Norfolk by assent and Act of Parliament was tried in a Court Martial by the King Lords and some Knights for words spoken against the King and judgement was there given that he should be banished into Hungary and his lands forfeited to the King Within one year after such is the vicissitude of all worldly honour and power in the Parliament of 1 H. 4. Plac. Coron n. 1. to 11. at the prayer of the Commons the great Lords Appellants Edward Duke of Albemarl Tho. Duke of Surry John Duke of Exeter John Marquess Dorset John Earl of Salisbury and Thomas Earl of Glocester were all questioned and brought to their several answers before the King and Lords for their Acts and proceedings in the Parliament of 21 R. 2. the records whereof being read before them in Parliament they made their several answers and excuses thereunto whereupon the King and Lords after consultation thereupon ADJUDGED that the said Dukes Marques and Earls should lose their several Titles and Dignities of Dukes Marquess and Earls with all the honor thereunto belonging and that they should forfeit all the Lands and goods which they or any of them had given them at the death of the Duke of Glocester or since and that if they or any of them should adhere to the quarrel or person of King Richard lately deposed that then the same should be Treason The which Judgement was pronounced against them by William Thurning Chief Justice of the Kings Bench in Parliament by the Kings command but in the Parliament of 2 H. 4. rot Parl. n. 33. upon the Petition of the Lords and Commons to the King the Earls of Rutland and Somerset were pardoned and restored by the King in Parliament In the Parliament of 2 H. 4. n. 14. the Bishop of Norwich was accused by Sir Thomas Erpingham the Kings
against Judge Thorp should be brought into the Parliament and there read openly BEFORE THE LORDS to have every of their advice concerning it whether this Iudgement were legal or not et nullo contradicente all the Lords affirmed the judgement to be legal and good considering that he against his Oath received Bribes And therefore it was agreed by all the Lords that if the like case should hereafter happen the King might take to him such Nobles as he should think meet and therein do according to his pleasure Provided this judgement should not be drawn into example against any other Officers who should break their Oaths but only against those qui praedictum Sacramentum fecerunt of Justices et fregerunt et habent leges Regales Angl. ad custod Here the Lords were sole Judges of the Judge who was a Commoner and gave judgement against him without the Commons yea declare the Law in this new case both in and out of Parliament In the Parliament of 21 E. 3. n. 68. The Commons by divers Bills complained to the Lords of divers extortions grievances prejudices done to the King and Commons by John Wattenham and Walter de Cheriton Merchants who desired the King would command them to come before THE COUNCIL LORDS in Parliament to answer what should be objected and clear themselves In the Parliament of 50 E. 3. n. 17 18 19 20. The Commons accused Richard Lyons Merchant of London of divers deceits extortions and misdemeanors whiles he was farmer of the Customs and last subsidy for transporting wools and staple Commodities procuring new Impositions on staple ware for buying debts from the Kings Creditors at under rates and making the King to pay the whole for taking of bribes and defrauding the King To some of which charges he answered and to the rest submitted himself to the King touching Body Lands and Goods Whereupon THE LORDS adjudged him to prison during the Kings will that his lands tenements and goods should be seised to the Kings use that Commissions should issue throughout all England to inquire of his Extortions whiles farmer of the subsidies and that he should be disfranchised Upon this Judgement in the Fine Roll of 50 E. 3. m. 19 21 22. there issued out writs for the arresting and selling the goods of Richard Lyons to the Kings use which were his on the 19 of March certis de causis coram Nobis et Concilio nostro in praesenti Parliamento nostro propositis c. per Concilium in Parliamento The same Parliament 50 E. 3. n. 31 32. William Ellis of great Yarmouth was accused by the Commons of sundry extortions whiles he was Deputy Farmer of the kings subsidie to Richard Lyons To which he seemed sufficiently to answet yet was BY THE LORDS adjudged to prison and to make a fine at the Kings pleasure Ibidem Num. 33. Iohn Peach of London was impeached by the Commons for procuring a license under the Great Seal that he only might sell sweet wines in London by colour whereof he took 4 s. 4 d. of every man for every Tun thereof sold which he justified he lawfully might doe Notwithstanding JUDGEMENT was given against him by THE LORDS that he should be committed during the Kings pleasure and make recompense to all parties grieved Num 37. Adam de Bury was accused of divers deceits and wrongs done by him whiles Mayor of Callice and Captain of Bellingham Being sent for to come to the Parliament he came not nor could he be found Thereupon the Lords agreed that all his goods and chattels should be arrested and so they were All these Commons were first impeached by the Commons and thus judged and censured by THE LORDS in this GOOD PARLIAMENT as Historians and others stile it And in the Commons petitions therein there are divers Petitions of Grievances from sundry Counties Towns persons complaining of wrongs and grievances presented to the King and Lords for redresse of oppressions extortions Monolies c. In the Parliament of 1 R. 2. n. 41 42 43. Dame Alice Pâ—etrees was brought before THE LORDS by Sir Richard Scroop Knight and there charged for pursuing matters at the Court contrary to an Order made in the Parliament of 50 E. 3. n. 35. and procuring King Edward to restore Richard Lyons to his lands and goods c. she denied she pursued any such thing for singular gain against that Ordinance whereupon diverse Officers Counsellers and Secretaries of king Edward 3. were examined against her who proved she made such pursutes and that for private gain in their conceits Whereupon the Lords alone without the Commons gave Iudgement against her that she should be banished according to the order aforesaid and forfeit all her Lands Goods and Tenements to the King The same Parliament 1 R 2. n. 32 33. The Lords committed William Fitz-Hugh Goldfiner and Citizen of London to the Tower for refusing to averr a Petition exhibited by him in the name of the poor Commonalty of that mystery complaining against John Chichester and John Bolcham of the same mystery of divers oppressions done by them to the said Commonalty In this very Parliament of 1 R. 2. n. 38 39 40. The Commons prayed that all those Captains who had rendred or lost Castles or Towns 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 evil examples they had given to other Governors of Towns 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 behalf 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 several Articles and answers to them in writing read before THE LORDS Which done the Constable was commanded to bring them again 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 Onâ—herwycke to the Kings enemies without any duress or want of victuals contrary to his allegiance and undertaking safely to keep it and therefore the Lords above-named sitting in full Parliament adjudge you to death that you shall be drawn hanged But because our Lord the King is not informed of the manner of the Judgement the execution of it shall be respited till the king be thereof informed After which Judgement given
against Sir Michael de la Pool Knight Lord Chancellor of England first before the Commons and afterward before the Lords which was granted Then he accused him BEFORE THE LORDS for bribery and injustice and that he entered into a bond of 10 l. to Iohn Ottard a Clerk to the said Chancellor which he was to give for his good success in the business in part of payment whereof he brought Herring and Sturgeon to Ottard and yet was delayed and could have no justice at the Chancellors hands Upon hearing the cause and examining witnesses upon Oath before THE LORDS the Chancellor was cleared The Chancellor thereupon required reparation for so great a slander the Lords being then troubled with other weighty matters let the Fishmonger to Bail and referred the matter to be ordered by the Judges who upon hearing the whole matter condemned Cavendish in three thousand marks for his slanderous complaint against the said Chancellor and adjudged him to prison till he had paid the same to the Chancellor and made fine and ransom to the King also which the Lords confirmed In the Parliament of 8 R. 2. n. 12. Walter Sybell of London was arrested and brought into the Parliament before the Lords at the sute of Robert de Veer Earl of Oxford for slandering him to the Duke of Lancaster and other Nobles for maintenance Walter denied not but that he said that certain there named recovered against him the said Walter and that by maintenance of the said Earl as he thought The Earl there present protested himself to be innocent and put himself upon the trial Walter thereupon was committed to Prison by the Lords and the next day he submitted himself and desired the Lords to be a mean for him saying he could not accuse him whereupon THE LORDS CONVICTED and FINED HIM FIVE HUNDRED MARKS TO THE SAID EARL for the which and for his fine and ransom to the King he was committed to prison BY THE LORDS A direct case in point By these two last Presidents of the Lords â—ining and imprisoning Cavendish and Syber two Commoners in Parliament for their standers and false accusacions only of two particular Peers and Members of their house it is most apparent the Lords now may most justly not only imprison but likewise fine both Lilburn and Overion for their most scandalous Libels against all the Members just Privileges Judicatory and Authority of the whole House of Peers which they have contemned vilisied oppugned and libelled against in the highest degree and most scurrillously abused reviled in sundry seditious Pamphlets to incite both the Army and whole Commonalty against them In the Parliament of 11 R. 2. the Duke of Glocester and other Lords came to London with great forces to secure themselves and remove the kings ill Counsellors and bring them to judgement whereupon the King for fear securing himself in the Tower of London and refusing to come to them at Westminster contrary to his faithfull promise the day before they sent him this threatning Message nisi venire maturaret juxta condictum quod eligerent alium sibi Regem qui vellet et deberet obtemperare consiliis Dominorum Wherewith being terrified he came unto them the next day Cui dixerunt PROCERES pro honore suo regni commodo oporterâ—â— ut Proditores susurrones adulatores et male fici detractores juratores à suo Palatio et Comitive etiam eliminarentur Whereupon they banished sundry Lords Bishops Clergy-men Knights and Ladies from the Court and imprisoned many other Knights Esquires and Lawyers to answer their offences in Parliament The first man proceeded against in Parliament was the Chief Justice Tresylian whom the Lords presently adjudged to be drawn and hanged The like Iuegement the Lords gave against Sir Nicholas Brambre Knight Sir Iohn Salisbury Sir Iames Burwâ—yes Iohn Beauchamp Iohn Blakes who were all drawn and hanged accordingly as Trayâ—ers one after another and Simon Burly beheaded after them by like judgement notwithstanding the Kings and Earl of Derbies intercessions for him to the Lords After their Execution Robert Belknapâ— John Holâ— Roger Fulthorp and William Burgh Justices were banished by the Lords sentence and their lands and chattels confiscated out of which they allowed them only a small annual pension to sustain their lives After which these Judgments against them were confirmed by Acts of Attainder as you may read in the Statutes at large of 11 R. 2. where their Crimes and Treasons are specified in Cokes 3 Institutes c. 2. p. 22 23. and in Knyghton Holinshed Fabian Speed Trussel with other Historians In the Parliament of 13 R. 2. n. 12. Upon complaint of the Bishop Dean and Chapter of Lincoln against the Mayor and Bayliffs thereof for injustice in keeping them from their rights and rents by reason of the franchises granted them which they abused Writs were sent to the Mayor and Baylifs to appear at a certain day before the Lords and to have full authority from the whole Comonalty to abide their determination therein At which day the Mayor and Bayliffs appearing in proper person for that they brought not full power with them from the said Commonalty they were anâ— goâ— by the Lords to be in contempt and so were the Mayor and Bayliffs of Cambridge for the self same cause this very Parliment n. 14. In the Parliament of 15 R. 2. n. 16. The Prior of Holland in Lancashire complained of a great riot done by Henry Treble John Greenboâ— and sundry others for entring into the Parsonage of Whitwâ—rke in Leicestershire thereupon John de Ellingham Serjeant at Armes by vertue of a Commission to him directed brought the said Treble and Greenbow the principle malefactors into the Parliament before the Lords who upon 〈◊〉 confessed the whole matter and were therefore committed to the Fleaâ— there to remain at the Kings pleasure after which they made a fine in the Chancery agreed with the Prior and found sureties for the Good behaviour whereupon they were dismissed The same Parliament n. 19. Sir Will. Bryan was by the King with the assent of the Lords committed prisoner to the lower during the Kings will and pleasure for purchasing a Bull from Rome to the Archbishops of Canterbury and York to excommunicate all such who had broken up his house and taken away divers Letters Privileges and Charters which Bull was adjudged prejudicial to the King his Councâ—l and in derogation of the Law Num. 20. Thomas Harding was committed to the Fleet by the King and Lords assent there to continue during the Kings pleasure for falsly accusing Sir John and Sir Ralph Sutton as well by mouth as writing of a conspiracy whereof upon hearing they were acquitted And n. 21. John Shadwell of Baghsteed in Sussex was likewise committed to the Fleet by THE LORDS there to remain during the Kings pleasure for misinforming of the Parliament that the Archbishop of Canterbury had excommunicated him and his neighbours wrongfully in his
informed of divers oppressions and injuries done to sundry people of his Realm by divers of his Officers and Ministers and likewise by some of his Counsellors by reason of his tender age to his damage and dishonour which things he would not suffer and desired to redresse that thereupon any persons which would complain of any oppressions durances and grievances done to them against right and the Laws and Usages of this Realm should repair to Westminster the next Parliament and there shew their plaints to him and such as he should appoint where they should receive convenient speedy remedy Then follows this Clause And because before these times some of the Knights who have come to Parliament for the Commnalties of Counties have been people of covyne and maintainers of false quarrels and have not suffered that good men should declare the grievances of the Common people nor their things which ought to have been redressed in Parliament to the great damage of us and our people We command and charge you that you cause to be chosen by the common assent of the County two of the most loyal or lawfull and most sufficient Knights or Sergeants of the said County who are not at all suspected of any crime nor common maintainers of Parties to be at the said Parliament according to the form of our Writ which you have received And this you may not fail to doe as you will eschew our grievous indignation Here the King by a special Writ takes care to prevent the election of Knights of Shires that were any way guilty of crime or maintenance as in former times had been used and that the loyallesâ— and most sufficient Knights or Esquires in the County should be elected by common consent because when once duly chosen and returned by the Counties as their lawfull Proxies and Attornies and impowred by them as such neither the King nor Lords could justly seclude or eject them much less the Commons House as they have ejected Projectors other Members of late times having no such authority given them by their Writs or retâ—rns but only to assent to such things as by the Common advice of the King Lords and Commons shall be there agreed concerning the King Church and Realm and being all of equal rank and power as Attornie Proctors for the Counties Cities and Burroughs for which they serve can no more discharge or eject one another than one Attorny Proctor Grand Jury-man Juror Justice of Peace Judge Commissioner or Executor discharge or remove another of his Colleagues equally impowred intrusted with them by the parties they represent To omit the summoning of sundry Merchants to attend the Parliament and Council to be advised and treated with upon sundry occasions in the Clause Rolls of 11 12 13 14. and 16 Edw. 3. Claus 26 E. 3. m. 14. dors there is a Parliamentary Council summoned to wit two Knights are by the Writ to be chosen and sent out of every Counry and but one Burgess out of every Burrough Claus 27 E. 3. m. 12. dorso Summonitio Concilii the Writ commands only one Knight to be chosen and sent out of every County but 2 Citizens and Burgesses out of every City and Burrough And the Prologue of the printed Statute of the Staple made therein 27 Ed. 3. recites that there was in it only of every County one Knight for all the County according to the limitation in the Writ Claus 45 E. 3. m. 29. The Parliament having granted a Subsidy to the King payable out of every parish and then departing the King for the better and speedier levying thereof desired the advice of the Commons yet would not put them to the trouble to meet all together And therefore issued out Writs to summon one Knight out of every County and one Citizen and Burgess out of every City Borough that had been of the former Parliament to meet together at Winchester Who meeting accordingly had their expences allowed them Dors 22. Here the King summons only half the Commons House to compleat what the whole had granted without the other moity for their greater ease and saving expences In the Parliament of 46 E. 6. n. 13 14. There was this Ordinance made and read Because that men of Law which pursue divers businesses in the Court of the Kings for particular persons with whom they are of Counsel procure and make divers Petitions to be preferred in Parliament in the name of the Commons which nothing concern them but only those singular persons or those whom they cause to put them in as also Sherifs which are common Officers to the people and ought to reside upon their Office to doe right to every man are named and have been before thâ—se hours retorned Knights of Shires in Parliaments by the same Sherifs It is agreed and assented in this Parliament that from henceforth no man of Law pursuing businesses in the Courts of the King nor Sherif for the time that he is Sherif shall be returned or accepted Knights of Shires and that those who are men of Law and Sherifs now returned to Parliament shall have no wages But THE KING WILL that Knights and SERJEANTS of the best esteem in the Country shall be henceforth returned Knights in Parliament and that they shall be chosen in full County Sir Edward Cook inform us That this Ordinance was made in the Lords house to wit by the King and Lords without the Commons as he insinuates If so then the K. Lords alone in that age had the sole power 1. of disabling secluding unfitting Members as practising Lawyers and Sherifs to be elected knights of Shires for the future 2ly of depriving them of wages though elected for that Parliament before the Ordinance made but not of ejecting them out of the House when duly elected because till now there was no Law or Ordinance against their choice 3ly Of rejecting and refusing to accept such for knights if elected and returned after this Ordinance as the words no accepted chivalers des Countees superadded too ne â—oient returnez imply 4ly By vertue of this Ordiâ—ance all Sherifs of Counties have been not only disabled but prohibited to be elected knights Members of the Commons House by this special Clause inserted into all writs for elections Nolumus autem quod tu vel aliquis alius Vicecomes ALIQUALITER SIT ELECTUS Now the Writ being the sole authority and ground for all elections prescribing the Freeholders to elect 2 of the most discreet fit sufficient persons and precisely inhibiting the election of any Sherifs in any sort either for Knights Citizens or Burgesses by vertue of this Ordinance The elections of such are meerly void and the King and Lords may justly seclude them if eâ—ected and retorned whiles Sherifs 5ly As Sherifs have been secluded by this Clause and Ordinance ever since so in the Parliament of 6 H. 4. All Apprentices and other men at Law were likewise secluded by this
London by a Proces out of the Kings Bench at the sute of one White for the sum of two hundred marks or thereabouts wherein he was late afore condemned as a surety for the debt of one Welden of Salisbury which arrest being signified to Sir Thomas Moile knight then Speaker of the Parliament and to the knights and Burgesses there order was taken that the Serjeant of the Parliament called S. I. should forthwith repair to the Counter in Bredstreet whither the said Ferrers was carried there to demand delivery of the Prisoner Therupon the Serjeant as he had in charge went to the Counter and declared to the Clerks there what he had in commandment but they and other Officers of the City were so far from obeying the said commandment as after many stout words they forcibly resisted the said Serjeant whereof ensued a fray within the Counter Gates between the said Ferrers and the said Officers not without hurt of either part so that the said Serjeant was driven to defend himself with his mace of arms and had the Crown thereof broken by bearing off a stroke and his man stroken down During this brawl the Sherifs of London called Rowland Hill and H. Suckley came thither to whom the Serjeant complained of this injury and required of them the delivery of the said Burgesse as afore but they bearing with their Officers made little account either of his complaint or of his message rejecting the same contemptuously with much proud language so as the Serjeant was forced to return without the Prisoner and finding the Speaker and all the knights and Burgesses set in their places declared unto them the whole cause as it fell out who took the same in so ill part that they altogether of whom there were not a few as well of the Kings privy Counsel as also of his privy Chamber would sit no longer without their Burgess but rose up wholly and repaired to the Vpper House where the whole case was declared by the mouth of the Speaker before Sir T. Audeley knight then Lord Chancellor of England and all the Lords and Judges there assembled who judging the contempt to be very great referred the punishment thereof to the order of the Common house They returning to their places again upon new debate of the Case took order that their Serjeant should eftsoon repair to the Sherifs of London and require delivery of the said Burgess without any writ â— warrant had for the same but only as afore Albeit the Lord Chancellor offered there to grant a Writ which they of the Common House refused being of a clear opinion that all commandements and other acts proceeding from the neather House were to be done and executed by their Serjeant without Writ only by shew of his Mace which was his warrant But before the Serjeants return into London the Sherifs having intelligence how hainously the matter was taken became somewhat more mild so as upon the said second demand they delivered the Prisoner without any denial But the Serjeant having then further in commandment from those of the neather House charged the said Sherifs to appear personally on the morrow by 8 of the clock before the Speaker in the neather House and to bring thither the Clerks of the Counter and such other of their Officers as were parties to the said affray and in like manner to take into his custody the said White which wittingly procured the said arrest in contempt of the privilege of the Parliament which commandment being done by the said Serjeant accordingly on the morrow the two Sherifs with one of the Clerks of the Counter which was the chief occasion of the said affray together with the said White appeared in the Common House where the Speaker charging them with their contempt and misdemeanor aforesaid they were compelled to make immediate answer without being admitted to any counsell Albeit Sir Ro. Cholmley then Recorder of L. and other the Counsel of the City then present offered to speak in the cause which were all put to silence and none suffered to speak but the parties themselves whereupon in the conclusion the said Sherifs and the same White were committed to the Tower of London and the said Clerk which was the occasion of the fray to a place there called Little Base and the Officers of L. which did the arrest called Tailer with 4 Officers more to Newgate where they remained from the 28 until the 30 of March and then they were delivered not without humble sute made by the Mayor of L. and other their friends And forasmuch as the said Ferrers being in execution upon â— condemnation of debt and set aâ— large by privilege of Parliament was not by Law â—o be brought again into execution and so the party without remedy for his debt as well against him as his principal debtor after long â—ebate of the same by the space of 9 or 10 days together at last they resolved upon an Act of Parliament to be made and to revive the execution of the said debt against the said Welden which was principal debtor and to discharge the said Ferrers But before this came to passe the Commons House was divided upon the question but in conclusion the Act passed for the said Ferrers who won by 14 voices The King being then advertised of all this proceeding called immediately before him the Lord Chancellor of England and his Judges with the Speaker of the Parliament and other the gravest persons of the neather House to whom he declared his opinion to this effect First commending their wisdom in maintaining the privileges of the House which he would not have to be infringed in any point alleged that he being head of the Parliament and attending in his own person upon the business thereof ought in reason to have privilege for him and all his Servants attending there upon him So that if the said Ferrers had been no Burgesse but only his servant that in respect thereof he was to have the privilege as well as any other For I understand quoth he that you not only for your own persons but also for your necessary servants even to your Cooks and Horse-keepers enjoy the said privilege insomuch as my Lord Chancellor here present hath informed us that he being Speaker of the Parliament the Cook of the Temple was arrested in L. and in execution upon a Statute of the staple And forasmuch as the said Cook during the Parliament served the Speaker in that office he was taken out of execution by the privilege of the Parliament and further we be informed by our Judges that wee at no time stand so highly in our estate Royal as in the time of Parliament wherein we as Head and you as Members are conjoyned and knit together into one body politick so as whatsoever offence or injury during that time is offered to the meanest Member of the House is to be judged as done against our person and the whole Court of
Hall was moved to repair to the Lord Keeper and make such Oath which he did and then had a Writ of privilege In the Parliament of 23 Eliz. 21 Jan. Saturday Mr. Paul Wentworth moved for a publike Fast and for a Sermon every morning at 7. a clock before the House sate The House upon debate were divided about the Fast 115. were for and 100. against it It was thereupon ordered That as many of the House as conveniently could should on Sunday fortnight after assemble and meet together in the Temple Church there to hear preaching and joyn together in prayer with humiliation and fasting for the assistance of Gods spirit in all their consultations during this Parliament and for the preservation of the Queens Majesty and her Realm and the Preachers to be appointed by the privy Council that were of the House that they may be discreet not medling with Innovation or unquietness This Order being made by the Commons alone without the Lords and Queens privities assents the Queen being informed thereof sent a Message to the House by Master Vice-chamberlain a Member of it That her Highness had great admiration of the rashness of this House in committing such an apparent contempt of her express command not to meddle with her person the State or Church-government as to put in execution such an Innovation without her privity or pleasure first known Thereupon the Vice-chamberlain moved the House to make humble submission to her Majesty acknowledging the said offence and contempt craving the remission of the same with a full purpose to forbear the committing of the like hereafter Upon which by consent of the WHOLE HOUSE Mr. Vice-chamberlain carried this their submission to her Majesty as being the Judge and punisher of their misdemeanors even in the House it self though caried by majority of Voices In the Parliament of 28 Eliz. the Commons questioning the chusing and returning of the knights of the Shire for Norfolk the Queen said She was sorry the Commons medled therewith being a thing impertinent for that House to deal withall it belonging only to the Office of the Lord Chancellor from whom the Writs issue and to whom they are returned In the Parliament of 35 Eliz. Mr. Peter Wentworth and Sir Henry Bromley delivered a petition to the Lord Keeper desiring the Lords of the Vpper House to be suppliants with them of the Lower House unto her Majesty for intayling the succession of the Crown whereof a Bill was ready drawn by them The Queen being highly displeased therewith as contrary to her former strict command charged the LORDS of her COUNCIL to call the parties before them which they did and after Speech with them commanded them to forbear the Parliament and not to go out of their lodgings after which Mr. Wentworth was committed by them to the Tower Sir Henry Bromley with Mr. Richard Stevens and Mr. Welch to whom Sir Henry had imparted the matter were committed to the Fleet sitting the Parliament And when Mr. Wrâ—th moved in the House that they might be humble suters to her Majesty that she would be pleased to set at liberty those Members of the House that were restrained It was answered by all the Privy Counsellors there present That her Majesty committed him for causes best known to her self and to press her Highness with this sute would but hinder them whose good as foughtâ— That the House must not call the Queen to account for what she doth of her royal Authority That the causes for which they are restrained may be high and dangerous That her Majesty liketh no such questions neither doth it become the House to search into these matters In the same Parliament M. Morrice Attorny of the Court of Wards by a Serjeant at Arms was taken out of the Commons House Febr. 28. and committed to prison by the Queens command for delivering in a Bill against the abuses of the Bishops on Tuesday Febr. 27. against which many Members spake that it should not be read The Queen hearing of it sent for Sir Edward Cooke then Speaker the same day giving him in command with her own mouth to signifie to the House her dislike of the said Bill preferred by Mr. Morrice and charging him upon his Allegiance if any such Bill he exhibited not to read it Adding It is in me and my power to call Parliaments it is in my power to end and determine them it is in my power to assent or dissent to any thing done in Parliament Lo here several Members of the Commons House imprisoned by the Queens command by the Lords of her Council for disobeying her express commands in her Speech in medling in matters of State and Ecclesiastical affaires which she had forbidden them to do So farr was the Commons house then from being the Judges or sole Judges of their own Members privileges speeches or actions in the House it self even in this good Queens late reign of blessed memory In the same Parliament of 35 Eliz. when Sir Edward 〈◊〉 was Speaker of the Commons House there fell out a question in the Commons House about the Amendment of a mistake in the 〈◊〉 of the Burgess of Southwark and after long debate it was resolved that the House could not amend it but the Lâ— Keeper in Chancery â—here the return was of record if he thought it amendable by Law and that Master Speaker should wait upon the Lord Keeper about it which he did who advised with the Judges concerning it as appears by the Journal In the same Parliament Thomas Fitz-Herbert of Staffordshire was elected a Burgess of Parliament and two hours after before the Indenture returned the Sherif took him prisoner upon a Capias Utlagatum Whereupon he petitioned the House that he might have a Writ of Privilege and be enlarged After many dayes debate and Arguments of this case in the House by sundry Lawyers and Sir Edward Cooke then Speaker it was agreed That no Writ of Privilege 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 Judges should be advised with and determine it not the House And at last he was outed of his privilege by the Houses resolution These forecited presidents in all ages will sufficiently prove the late objected presidents for the Commons sole Judicial Authority and Jurisdiction in cases of Privilege and Elections and the suspending ejecting fining secluding imprisoning their own Members and such who violate their privileges or make false returns to be a meer late Groundless Innovation if not Usurpation upon the King House of Peers and Chancellors of England no ways grounded on the Law and custom of Parliaments as Sir Edward Cooke mistakes but point-blank against them both and that the Statutes concerning Elections and attendance or absence of Knights and Burgesses as 5 R.
3. Stat. 5. c. 4. because contrary to Magna Charta it self as he now expounds it Let him therefore unriddle assoyl this his own Dilemma or for ever hold his tongue and pen from publishing such absurdities to seduce poor people as he hath done to exasperate them to clamour against the Lords for being more favourable in their censure of him than his transcendent Libels and contempts against them deserved Fifthly This Statute is in the disjunctive by the Lawfull Judgement of his Peers OR BY THE LAW OF THE LAND which this Ignoramus observes not Now by the Law of the Land every inferiour Court of Justice may fine and imprison men for contempts or misdemeanors against them and their authority therefore the Lords in Parliament being the highest Tribunal may much more do it and have ever done it even by this express clause of Magna Charta and the Law and Custom of Parliament as well as they may give judgements in writs of Error against or for Commons without the Commons consent as himself doth grant yea and by the Kings concurrent assent declare what is Treason and what not within the Statute of 25 E. 3. c. 20. in the cases of Commoners as well as Lords without the Commons as they did in the forecited cases of William de Weston and Lord of Gomines 1 R. 2. n. 38 39 40. Of William Thorp 25 E. 3. n. 10. Of Thomas Haxey 20 R. 2. n. 15 16.23 Of Sir Thomas Talbot 13 R. 2. n. 20 21. Of Sir Robert Plesington and Henry Bowhert 22 R. 2. Plac. Coronae in Parliamento n. 27 28. Of John Hall 1 H. 4. Plac. Coronae in Parl. n. 11. to 17. Of Sir Ralph Lumley and others 4 H. 4. n. 15. 19 20 21. Of Sir John Oldcastle 5 H. 5. n. 11. and of Sir John Mortymer 2 H. 6. n. 18. as the Commons and Judges in all those Parliaments agreed without contradiction against the erronious opinion of Sir Edward Cooke to the contrary in his 3. Institutes p. 22. Sixthly It is granted by Lilburn that by this express Law No Freeman of England ought to be judged or censured but only by his Peers and that Commoners are no Peers to Nobles nor Noblemen Peers to Commoners Then by what Law or reason dared he to publish to the world That the House of Commons are the Supreme Power within this Realm and THAT BY RIGHT THEY ARE THE LORDS JUDGES certainly this is a Note beyond Ela a direct contradiction to Magna Charta in this very clause wherein he 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 Iudges then by Magna Charta c. 29. they are and ought to be their Peers and if the Commons be the Lords Peers then the Lords must be the Commons Peers too and if so then they may lawfully be his Judges even by Magna Charta because here he grants them to be no other than his Peers Lo the head of this great Goliah of the Philistin Levellers cut off with his own sword and Magna Charta for ever vindicated from his ignorant and sottish contradictory Glosses on it Now to convict him of his Errour in affirming the House of Commons to be by right the Lords Judges I might inform him as I have formerly proved at large that Magna Charta it self c. 14. 29. and Sir Edward Cook his chief Author in his commentary on them are express against him that in the Parliament of 15 E. 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 Temporalties Lands and Tenements Goods and Chattels seised into the Kings hands and some put to death without Iudgement of their Péers 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 Temporalties Lands Tenements Goods Chattels nor to be arrested or imprisoned outlawed exiled nor forejudged nor put to answer nor to be judged but by award of the said Péers in Parliament which privilege 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. 18 E. 3. n. 7. to 16. 10 R. 2. n. 7 8. 11 R. 2. n. 7 c. and sundry other Parliament Rolls See Cook 4. Instit p. 15. 17 E. 3. 19. Cromptons Jurisdiction of Courts f. 4. 12 13. Stamford f. 151 152. This Paradox therefore of his is against all Statutes Law-Books Presidents whatsoever and Magna Charta it self And as false an assertion as that the Subjects are the Judges of their Soveraign the Servants of their Masters the children of their Parents the Wiâ—es of their Husbands the Soldiers of their General and the feet and lower members of the Head The second only Objection more of moment is this If the House of Peers may without the Commons fine and imprison Commoners then if their fine and imprisonment be unjust and illegal they shall be remediless there being no superior Court to appeal unto which will be an intollerable slavery and grievance not to be indured among free-born people I answer first That no injustice shall or ought to be presumed in the highest Court of Justice till it be apparently manifested Secondly If any such censure be given the party as in Chancery upon just grounds shewed may Petition the House of Peers for a review and new hearing of the cause which they in justice neither will nor can deny and if they do then the party grieved may petition the house of Commons to intercede in his behalf to the Peers for a rehearing but for them to discharge free any Commoner judicially censured by the Lords I have hitherto met with no president in former Parliaments nor power in the house of Commons to doe it who cannot reverse Erronious judgements in any inferiour Courts by writ of Error but the Lords alone much less then the judgements of the Higher House of Peers which is paramount them Thirdly I conceive the House of Peers being the Superior Authority and only Judicatory in Parliament may relieve or release any Commoners unjustly imprisoned or censured by the Commons house or any of their Committees and ought in justice to doe it or else there will be the same mischief or a greater in admitting the house of Commons to be Judges of Commoners if there be no appeal from them to the Lords in case their sentences be illegal or unjust Thirdly This mischief is but rare and you may object the same against a sentence given or Law made in Parliament by the King and both Houses because there is no appeal from it but only to the next or some other Parliament that shall be summoned by petition in the nature of a Writ of
Lords gave him remedy by a Writ out of the Chancery Claus 14. E. 2. m. 12. in the Schedula there is a Judgement in Parliament by King Lords and Council touching the Abby of Abingdon and a composition formerly made between the Abbot Prior and monks thereof reversed nulled because inconvenient Claus 14. E. 2. m. 17. dorso there is a case concerning a reprisal brought by appeal out of the Chancery into the Parliament before the King Lords and Council and there heard and decided And Claus 15. E. 2. there are many cases and Writs touching Reprises In the Parliament of 1. E. 3. there were many Judgements given in sundry civil cases upon petitions To the King and his Council by the King Lords and Council extant in the bundle of Petitions and Claus Rolls of that year and those things that were proper for the Courts of Law and Chancery were referred to them to be there ended Claus 1. E. 3. m. 1. Upon the petition of Alice Gill and Robert Carder to the King Council and Parliament that they buying Corne in Abevil in France to transport to London it was arrested by the Baily of St. Valeric to the value of one hundred pounds at the suit of Will de Countepy of Crotye in Picardy and delivered to him against their wills because the Ship of the said Will was taken upon the Sea by the men of Bayon which ship the petitioners finding in the port of London had arrested by writ out of the Chancery directed to the Sheriffes of London until the said hundred pounds was paid them by the Merchant the King and Council ordered upon their petition that the ship might not be discharged till the 100 l. was satisfied that a Writ should be directed out of the Chancery to the Sheriffes of London to do Justice upon the contents in the Petition according to the Law of Merchants The like case of Reprise upon the Petition of Hugh Samson is in 1. E. 3. rot 5. In Claus 1. E. 3. part 1. m. 10. There is a Judgement given by the Lords and Council for the Bishop of Durham touching the Liberties and Royalties of his Bishoprick against the Kings revocation where in sundry Petitions and answers in former Parliament under King Edward the 2d are rehearsed wherein hee could have no right Mem. 12. there is a Judgement given by the Lords and Council in Parliament for the Bishop of York his prisage and preemption of wines next after the King in the Port of Hull and in Claus 1. E. 3. Pâ— 2. m. 11. Claus 4. E. 3. m. 9. remembred in the year Book of 6. E. 3. f. 50. So Claus 2. E. 3. m. 20. in Schedula there is Placitum in Parliamento before the King and his Council of the Dean and Chapter of Litchfield touching their Title to Camock Claus 14. E. 3. part 1. m. 41. Upon the Petition of the Bishop of Carlisle it was resolved by the Lords and Council in that and sundry other Parliaments in the Reign of this King and his Father non esse â—uri consonum that Churches and other things spiritual annexed to Archbishopricks and Bishopricks should belong to the King and Gardians of the temporalties but to the Gardians of the spiritualties and so ordered accordingly yea so was it resolved upon the Petition of the Bishop of Winchester to the King and his Council in the Parliament of Claus 1. E. 3. rot 9. dorso Where coram Rege et Magno Concilio concessum est et concordatum quod custodâ—s temporalium Episcopatus non se intromittant amplius temporibus vacationum hujusmodi fructibus Ecclesiarum de Estanmer Hamoldan annexed to the Bishoprick of Winchester In the Parliament of 14. E. 3. Sir Geoffry Stantens case upon his Petition to the King and Lords in Parliament the Justices of the Common Pleas came with the record of his case which had long depended before them in the Court of Common Pleas which being read and debated in the presence of all the LORDS Justices and others of the Kings Council their assistants in this case of Law they resolved that the Sonne being a stranger might aver that his Father who levyed the fine had nothing in the Lands and that the Wife in this case could not vouch her Husband And thereupon a Writ under the great Seal was sent to the Judges by the Lords order to give judgement accordingly Claus 35. E. 3. m. 40. A villain commits fellony and is attainted after that the Lord had seised his goods whereupon his goods were prized and seised on for the King notwithstanding the Lords seisure upon a Petition in Parliament It was resolved by the Lords and Council that it was just the goods should be restored to the Lord if they were not seised fraudulently to prevent the Kings seisure of them And a Writ of Restitution was thereupon awarded per ipsum Regem et per Petitionem in Parliamento In the 6. year of King Richard the 2d it was agreed between the Duke of Lancaster and the Scots in the Marches that for the benefit of both parties ut â—de caterâ— ipsi nee Anglici vexarenâ—ur per tot labores expensas sed singulis annis certi utriusque gentis destinarentur ad Parliamentum Regni utriusque qui et injurias acceptas proferrent in medium emendas acciparent secundum quantitatem damuâ—rum per Judicium Dominorum here the Lords both in the Parliament of England and Scotland are made sole Judges of injuries and dammages done by Scots or English upon one another in the Marches Quia vero Scoti ad Parliamentum Londoniis Anno 1383. supersederunt venire juxta conductum insuper damna interim plura Borealibus praesumpserunt inferre c. decretum est per Parliamentum ut frangenti fidem fides frangatur eidem Et concessae sunt Borealibus commissiones congregandi virtutem exercitus Scotis resistendi damna pro damnis inferendi quoties contingeret Scotos irrumpere vel hostili mâ—re partes illas intrare In the Parliament of 4. H. 4. n. 9. Upon the complaint of Sir Thomas Pomeroy and his Lady against Sir Philip Courtney and others forcible entry into several Lands and Mannors in the Country of Devon The King and Lords adjudged that the said Sir Thomas should enter into the said Mannors and Lands if his entry were lawful or bring his Assize without all delayes at his election In the Parliament of 5. H. 4. n. 41 42 43 44. in a case concerning Mannors and certain Lands in the County of Cornwal between the Prince and John Cornwal and the Countesse of Huntington his wife the King and Lords gave Iudgement that the Prince should â—e restored to the said Mannors and Lands being parcels of the Dutchey of Cornwal and that the Prince after seisin had should regrant them unto them which was done accordingly in Parliament In 6 H. 4 n. 28. Upon the Petition of
ut parvulus parvulus enim non sapit nisi placentia adulatoria arguentem secundum veritatem non diligit ymmo odit supra modum Quondam autem veritus fuerat subpeditata ut nullus auderet loqui satis constat per hoc patet quod ille qui regnabat sapiebat ut parvulus vir enim non sapit talia set sapientiam unde per Dei gratiam dici poterit de isto viro quod scribitur Eccl. ix Beatus vir qui in sapientia morabitur sicut enim puer diligit vanitatem ita vir sapit veritatem sapientiam veritas ergo intrabit adulatio recedat quae tot mala in regno nostro fecerunt quia vir dominabitur populo qui veritatem sapit non qui vanitatem vel adulationem Tertio dicitur Cogitabam ut parvulus parvulus enim solum studet facere omnia voluntarie non ex ratione cum igitur puer regnat voluntas sola regnat ratio eâ—ulat ubi vero voluntas regnat ratio recessit constantia fugata est ita imminet magnum periculum ab isto periculo liberati sumus quia vir dominabitur ille scilicet qui dicit non sicut parvulus set sicut ratione perfectus Non veni facere voluntatem meam set ejus qui misit me scilicet Dei ideo de viro isto non solum dicemus quod in sapientia morabitur set eciam ut vir non ut puer in sensu cogitabit circumspectionem Dei id est circumquaque diligenter aspicit ut Dei voluntas non sua fiat ita loco pueri voluntarie lascivientis vir modo dominabitur in populo iste vir est talis quod dicetur Regnabit Rex sapiens erit faciet judicium justitium interra Qua collatione completa dictus Dominus Rex Henricus ad ponendum suorum subditorum animos in quiete dixit publice tunc ibidem haec verba Sires I thank God and yowe Spirituel and Temporel and all the estates of the Lond and do yowe to wyte it es noght my will that no man thynk that be waye of conquest I wold disherit any man of his heritage franches or other ryghts that hym aght to have to put him out of that that he has and has had by the gude Lawes and Customes of the Rewme Except thos personâ— that has been agan the gude purpose and the common profit of the Rewme Et protinus hoc attento quod per prius vacante sede regali per cessionem depositionem praedictas cessavit omnis potestas quorumcunque Justiciariorum Vicecomitum aliorium Officiariorum ubique per regnum ne exhibitio justitiae in gravamen populi dilationis incommodo subjaceret suos officiarios principales ac eciam Justiciarios deputavit ibidem juramento consueto Regi praestito per singulos eorundem Et fuit ilico de dicti Regis mandato publice proclamatum ibidem quod die Lunae proximo post festum sancti Michaelis Parliamentum ibidem teneri celebrari deberet quodque die Lunae proximo extunc sequente videlicet in festo sancti Edwardi Coronatio dicti Regis fieret apud Westmonasterium quod omnes illi qui vendicare voluerint aliquod servitium se in dicta Coronatione facturos eo praetextu aliquid sibi deberi venirent ad Albam aulam palacii coram Senescallo Constabulario Marescallo Angliae die Sabbati proximo ante diem Parliamenti praedicti quod in ea parte justum fuerit petituri quibus plena justitia fierit in petitis Quantum autem ad abbreviationem assignationis diei Parliamenti praedicti fuerat pro parte dicti Regis protestatio talis facta videlicet quod non erat intentionis suae ut statibus regni sui praejudicium afferatur exinde nec quod hoc trahatur de caetero in exemplum quinymmo quod abbreviatio illa fiebat tantummodo pro commodo utilitate regni specialiter ut quorumcunque ligeorum suorum parcatur laboribus expensis quodque super gravaminibus populi celere possit remedium adhiberi Quibus omnibus sic peractis Rex desede sua regali surgens populum vultu hillari benigno respiciens abinde populo congaudente recessit in Alba aula praedicta convivium regni Proceribus ac generosis illuc in multitudine maxima congregatis eodem die solempnissime celebravit ET POSTMODUM die Mercurii proximo extunc sequente dicti Procuratores ut praemittitur deputati ad praesentiam dicti Richardi nuper Regis infra dictam Turrim existentis prout eis injunctum fuerat accesserunt praefatus Dominus Willielmus Thirnyng Justiciarius pro se dictis sociis comprocuratoribus suis nomine omnium statuum populi praedictorum admissionem dictae renunciationis ac modum causam formam sententiae depositionis hujusmodi eidem Ricardo notificavit ac plenius declaravit statim homagium fidelitatem eidem Ricardo nuper Regi ut praemittitur facta resignavit reddidit sub hiis verbis Les paroles qe William Thirnyng parla a monsire Richard nadgaires Roy d' Engleterre a le Toure de Londres en sa Chambre le Mesqerdy procheyn apres le fest de Seint Michell larchaunchel sensuent SIRE It is wele knowe to yowe that ther was a Parlement somond of all the States of the Reaume for to be at Westmynstre and to begynne on the Tuesday in the morne of the fest of Seint Michell the Archaungell that was yesterday by cause of the whiche Sommons all the States of this lond were there gadyrd the whiche States hole made thes same persones that ben comen here to yowe now her Procuratours and gafen hem full auctorite and power and charged hem for to say the wordes that we sall say to yowe in her name and on thair behalve that is to wytten the Bysshop of Seint Assa for Ersbisshoppes and Bisshoppes the Abbot of Glastenbury for Abbots and Priours and all other men of holy Chirche Seculers and Rewelers the Erle of Gloucestre for Dukes and Erles the Lord of Berkeley for Barones and Barnerettes Sir Thomas Irpyngham Chamberleyn for all the Bachilers and Commons of this Lond be south Sire Thomas Grey for all the Bachilers and Commons by north and my Felawe Johan Markham and me for to come wyth hem for all thes States and so Syre thes wordes and the doyng that we sall say to yowe is not onlyâ—h our wordes bot the wordes and the doynges of all the States of this Lond and our charge and in her name And he answered and said that he wyst welâ— that we wold noght say but as we were charged Sire ye remembre yowe wele that on Moneday in the fest of Seint Michell the Archaungell ryght here in this Chambre and in what presence ye renounsed and cessed of the state of Kyng and of Lordesship and of all the Dignite
Christ beseeching all that fear God to behave themselves as obedient Subjects to the Queens Highness and the superiour powers which are ordained under her rather after their example to give their heads to the block than in any point to rebell against the Lords anointed Queen Mary in no point consenting to any Rebellion or sedition against her Highness but where they cannot obey but must disobey God there to submit themselves with all patience and humility to suffer as the will and pleasure of the higher powers shall adjudge Against the doctrine practice of some new Saints of this iron age who will ward off Christs wooden Cross with their iron swords and rather bring their Soveraigns heads to the block than submit their own heads unto it for their very Treasons and Rebellions against them So farr are they from believing practising the very first Alphabetical Lesson of our Saviours prescription and real Christanity Mat. 16.24 If any man will come after me let him deny himself and take up his cross and follow me The Duke of Northumberland for that he was appointed General of the Army in this Quarrel of the Lady Jane though Queen de facto was arrested of High Treason together with 3. of his Sons the Marquess of Northampton the Earl of Huntindon with sundry Knights Gentlemen and sent prisoners to the Tower of London The 16. of August next following the said Duke and Nobles were publikely arraigned of High Treason in Westminster hall before Thomas Duke of Norfolk High Steward of England being brought to the bar the D. used great reverence to his Judges professing his faith and allegiance to the Queens Majesty whom he confessed he had grievously offeâ—ded saying that he meant not to speak any thing in defence of his face but would first understand the opinion of the Court in 2. points 1. Whether a man doing any Act or thing by authority of the Princes Councel and by Warrant of the Great Seal of England and nothing doing without the same may be charged with TREASON for doing any thing by such Warrant Which question was grounded on this very Statute of 11 H. 7. c. 1. 2. Whether any such persons as were equally culpable in that crime and those by whose Letters and Commandment he was directed in all his doings might be his Iudges or passe upon his Tryal as his PEERS To the 1. was answered mark it That the Great Seal he had for his Wâ—rrant was not the Seal of the Lawfull Qu. of the Realm nor pâ—ssed by her Authority but the Seal of an Vsurper and therefore could be no Warrant to him To the 2. That if any were as deeply to be touched in that Case as himself yet so long as no attainder was of Record against them they were nevertheless persons able in Law to pass upon any tryal and not to be challenged therefore but at the Princes pleasure After which the Duke and the rest of the Lords using but few words declaring their earnest repentance and imploring the Queens mercy confessed this Indictment of Treason and thereupon had Iudgement passed upon them as Traytors And the Duke with Sir Iohn Gates and Sir Thomas Palmer were accordingly executed on Tower Hill August 22. confessing the Iustice both of their Iudgement and Execution as TRAYTORS and not justifying themselves by the Act of 11 H. 7. After this Archbishop Cranmer though at first he refused to subscribe K. Eds. will to dis-inherit Queen Mary alleging many reasons against it yet was committed Prisoner to the Tower indicted arraigned condemned of High Treason in November following for aiding the Earl of Northumb. with Horse and Men against Queen Mary And Queen Jane herself though Queen de facto meerly passive not active in this case never aspiring after the Crown being proclaimed Queen against her will with the Lord Guyldsord her husband were both indicted arraigned condemned of High Treason and accordingly executed as Traytors Feb. 12. 1 Mariae the one for usurpation of the royal Estate AS QVEEN OF ENGLAND the other as principal adherent to her in that case both of them confessing that BY THE LAW THEY WERE JUSTLY CONDEMNED After which the Duke of Suffolk her father and sundry others were condemned of High Treason executed upon the same account and that by the judgement of all the several Peers Nobles Judges Lawyers and Great Officers of Engl. though guilty of the same crime seconded with the Judgement of the whole Parl. of 1 Mar. c. 16. which confirmed their Attainders as JUST and LEGAL notwithstanding the Statute of 11 H. 7. c. 1. which extends only to indemnifie those Subjects who doe their true duty and service of allegiance to their King and Soveraign Lord which none certainly do who adhere and joyn with an apparent Usurper in possession against their lawfull undoubted King and Soveraign Lord as they here adjudged and the Parliaments of 1 4 and 14 of King Edward the 4th long before no Acts of Parliament whatsoever being able to secure Usurpers Titles though Kings de facto to themselves or their posterity or to save their own or their adherents Heads from the block or their estates from confiscation as the recited tragical Presidents and Judgements prove against the absurd opinions of many Grandees of the Law in great reputation who take all Sir Edward Cooks and others Dotages for Oracles and well deserve a part in Ignoramus for being ignorant of these late notorious Judgements and authorities against their erronious opinions wherewith they seduce their silly Clyents and young Students of the Law to their great peril for whose better information I have the larger insisted on this point to rectifie this dangerous capital mistake which may hazard both their lives estates and souls to boot And so much in answer to the objected Presidents of Edward and Richard the 2d to prove the Commons Right of Judicature in Parliaments c. As good an evidence as that grave Sir E. Cook produceth to prove this House of Commons who had no Journal Book till â— Ed. 6. to be a distinct Court of Iudicature because upon signification of the Kings pleasure to the Speaker they do and may prorogue or adjourn themselves and are not prorogued adjourned by the House of Lords By which reason he might prove every Committee of the Lords or Commons House to be a distinct Court because they may adjourn and prorogue themselves without the House and all Commissioners for examination of Witnesses Charitable uses the petty Sessions of Justices of Peace all Country Committees Archdeacons and other visitors all Auditors of Accounts Arbitrators Referrees c. to be Courts because they may all adjourn themselves from one day and place to another when as their presenting of their own Speakers in and the Kings calling them into the Lords House at the beginning and end of every Parliament or Session and at the passing of Bills and their dissolution in the Lords
Citizens Burgesses and Knights for the Parliament only by our Kings Letters and Charters not by the Peoples inherent Right of Election since none of them doe or can choose or send Knights Citizens or Burgesses to Parliament without the Kings Charters authorizing them and his Wrâ— to elect them first directed to them but only by power and vertue of them Therefore if the Lords sitting in Parliament be illegal unwarrantable because they sit only by Patents and Writs from the King the sitting of Knights Citizens Burgesses must be so too because they are elected only by the Kings Writ and the people enabled to elect them only by his Patents the power of creating Counties Cities Boroughs Knights being originally in the King as well as the power of creating Lords and Barons 3 Thirdly that the general election of the people is not absolutely necessary nor essential to the making of a Lawfull King Magistrate Counseller of State Peer Member of Parliament nor yet of a Minister as the Objectors falsly pretend who take it for granted as an infallible truth and Maxim of State For then it will necessarily ensue from hence 1. That God himself is no lawfull King or Governour over all the World and creatures in it because not chosen or elected by the General Voice of the Creatures and Mankind to be King over them and because the greatest part of men reject his Yoak Laws Government Exod. 5.2 Psal 2.1 2 3 4. Lu. 1.14.27 yet the Lord still reigneth as a Lawfull King over them by his own Right of Creatorship and Godhead Psal 95.3.5 Ps 96.10 Ps 97.1 Ps 99.1 Ps 100.3 Ps 103.15 Jer. 10.7 Dan. 4.32.34 Ps 10.16 Psal 22.28 Ps 48.7 2ly That Jesus Christ himself who is a King by birth-right Sonship and inheritance only being born King of the Jews sitting upon the throne of David his Father and reigning over the house of Jacob for ever by vertue of his Sonship only as Mat. 2.2 Lu. 1.32 33. Ps 2.6 7 8. Heb. 1.5 8 9. Acts 13.22 23 33. Ezech. 34.23 24. c. 37.24 25. Mar. 11.9.10 Isa 3.6 7. c. 11.1 2 c. Jer. 33. 15 17 20 21. c. 23.5 6. c. 30.4 Hos 3.5 Rev. 2.2 c. resolve was not chosen King â—is Saints Church Subjects people but chuseth them to be his Leiges John 15.16 Eph. 1.4 1 Pet. 2.9 Rev. 17.14 Deut. 14.2 Ps 132.13 Psal 135.4 shall upon this account be no lawfull King or Governor over his Saints Church and Subjects but a meer Usurper Intruder Tyrant over them as they stile Kings by Birthright not popular Election which is the highest blasphemy to affirm 3ly Then it will likewise inevitably follow That neither Moses Joshua Nehemiah Saul David Solomon nor any of the pious Kings of Juda nor Christ himself and other Kings who came to the Crown by Gods immediate designation or by descent birth-right and lineal succession were just lawfull Governors or Kings which none dare averr That the 70. Elders the Princes Nobles chief Captains Judges and Rulers under Moses and their Kings with other Governours and the Jewish Sanhedrim were no lawfull Judges Magistrates Counsellers of State or Members of their general Congregations Parliaments assemblies since we read of none of them chosen by the people but only designed by God himself or made created such by their Kings Governours who both called and summoned them to their general congregations assemblies judicatures as the premised texts and others evidence That Joseph Mordecai Daniel Shadrac Mesec Abednego were no lawfull Rulers or Magistrates because made such even by Heathen Kings not by the peoples choice And that none of the Levites Priests High Priests or Prophets under the Law were lawfull because none of them that we read of were made Levites Priests High Priests or Prophets by the peoples own choice but by descent and succession in the selfsame Tribe or by Gods own immediate call and appointment as John Baptist Christ himself the Apostles the 70 Disciples and others under the Gospel were made Ministers Apostles Evangelists preaching Elders without the peoples call yet our opposites dare not deny their Ministry and Apostleship to be lawfull being not of men but by Gods and Christs own call without the peoples Fourthly then it will from hence also follow that all Hereditarie Kingdoms which Politicians and Divines generally hold the best of Governments being the title of Christ himself to his kingdom all Patents Commissions in all Empires Kingdoms States of the world creating Princes Dukes Earls Lords and such like Titles of Honour whereby they are inabled in all Christian kingdoms to sit vote in their Parliaments and Assemblies of State for making Privy Counsellers Judges Justices and other Magistrates are void null illegal and so all the Laws Orders Ordinances made Acts done and Judgments given by them are void or erroneous because they were not chosen called to these publike places Counsels Judicatures by the people but by Emperors Kings and Supreme Governours of 〈◊〉 and what a confusion such a Paradox as this would â—â—eed in all our Realms in all States Kingdoms of the world let wise men consider and those fools too who make this Objection 5. Fifthly if there be no lawfull Authority in any State but from the Peoples immediate election then it will necessarily follow that Sir Thomas Fairfax is no lawfull General his Officers Councell of Warr no lawfull Officers or Councel yea Colonell and Lieutenant Colonell Lilburn no lawfull Colonel or Lieutenant-Colonel and ought not to use or retain these titles as they doe because none of them were called chosen to those places by the People or common Souldiers but made such by Commission from the Parliament General or Lords alone 6. Sixthly This paradox of theirs touching the peoples choice call to inable Peers to sit in Parliament or bear any office of Magistracy or Judicature is warranted by no law of God in old or new Testament both which contradict it by no Laws or Statutes of these Kingdoms Nations which absolutely disclaim it and enact the contrarie by no Original Law of Nature which as all Polititians and Divines assert and the Scripture manifests at first gave everie Father a Magistratical and Judicial rule power over his children progeny Family and made him a King Prince Lord over them without either their choice or call the Father and first-born of the family being both the King Prince Lord over it and Priest to it from the Creation till the Law was given as is generally acknowledged by all Divines as God himself is King over all the earth world as Creator and Father thereof 7ly It is very observable that God himself expresly denied to his own people Israel the free election of their Kings and Supreme Governors reserving the choice of them only to himself as his own Prerogative witness that notable text of
Peers made this memorable Petition and Remonstrance of their Privileges to the King The humble Remonstrance and Petition of the Peers MAy it please your Majestie we the Peers of this Realm now assembled in Parliament finding the Earl of Arundel absent from his place amongst us his presence was therefore called for But thereupon a message was delivered us from your Majestie by the Lord Keeper That the Earl of Arundel was restrained for a misdemeanor which was personal to your Majesty and lay in the proper knowledge of your Majesty and had no relation to matter of Parliament This Message occasioned us to inquire into the Acts of our Ancestors and what in like cases they had done that so we might not erre in a dutifull respect to your Majesty and yet preserve our right and privileges of Parliament And after diligent search made both of all Stories Statutes and Records that might inform us in this case we find iâ— to be an undoubted Right and constant Privilege of Parliament That no Lord of Parliament sitting in Parliament or within the usual time of Privilege of Parliament is to be imprisoned or restrained without sentence or order of the House unlesse it be â—or Treason or Felony or for refusing to give surety for the Peace And to satisfie our selves the better we have heard all that could be aleged by your Majesties learned Counsel at Law that might any way infringe or weaken this claim of the Peers and to all that can be shewed or alleged so full satisfaction hath been given as that all the Peers in Parliament upon the question made of this Privilege have una voce consented that this is the undoubted right of the Peers and hath been inviolably enjoyed by them Wherefore we your Majesties loyal Subjects and humble Servants the whole body of the Peers in Parliament assembled most humbly beseech your Majesty that the Earl of Arundel a Member of this Body may presently be admitted by your gracious favour to come sit and serve your Majesty and the Commonwealth in the great affairs of this Parliament And we shall pray c. Upon which Remonstrance and Petition the King refusing to inlarge him thereupon the Lords to maintain their Privilege adjourned themselves on the 25 and 26 of May without doing any thing and upon the Kings refusal to release him they adjourned from May 26 till June 2. refusing to sit and so the Parliament dissolved in discontent his imprisonment in this case being a breach of privilege contrary to Magna Charta In this very Parliament the Lord Digby Earl of Bristol being omitted out of the summons of Parliament upon complaint to the Lords House was by order admitted to set therein as his Birthright from which he might not be debarred for want of Summons which ought to have been sent unto him ex debito Iustitiae as Sir Edward Cook in his 4 Institutes p. 1. The Act for ttriennial Parliaments and King John great Charter resolve And not long after the beginning of this Parliament upon the Kings accusation and impeachment of the Lord Kimbolton and the five Members of the Commons House both Houses adjourned and sate not as Houses till they had received satisfaction and restitution of those Members as the Journals of both Houses manifest it being an high breach of their Privileges contrary to the Great Charter If then the Kings bare not summoning of some Pears to Parliament who ought to sit there by their right of Perage or impeaching or imprisoning any Peer unjustly to disable them to sit personally in Parl. be a breach of Privilege of the fundamental Laws of the Realm and Magna Charta it self confirmed in above 40 successive Parliaments then the Lords right to sit vote and judge in Parliament is as firm and indisputable as Magna Charta can make it and consented to confirmed by all the Commons people and Parliaments of England that ever consented to Magna Charta though they be not eligible every Parliament by the Freeholders people as Knights and Burgesses ought to be and to deny this birthright and privilege of theits is to deny Magna Charta it self and this present Parliaments Declarations proceedings in the case of the Lord Kimbolton a Member of the House of Peers Fifthly The Treatise intituled The manner of holding Parliaments in England in Edward the Confessors time befose the Conquest rehearsed afterwards before William the Conquerour by the discreet men of the Kingdom and by himself approved and used in his time and in the times of his successors Kings of England if the Title be true and the Treatise so antient as Sir Edward Cook others now take it to be When as its mention of the Bishop of Carlisles usual place in Parliaments which Bishoprick was not founded till the year of our Lord 1132. or 1134. as Matthew Paris Matthew Westminster Roger Hoveden Godwin and others attest in the later end of Henry the first his reign Its menâ—ion of the Mayors of London other Cities and writs usually directed to them to elect two Citizens to serve in Parliament whereas London it self had no Mayor before the year 1208. being the 9. year of King John nor other Cities Mayors til divers years after nor can any Writs for electing Knights of Shires Citizens or Burgesses to serve in Parliament which it oft times writes of be produced before 49 H. 3. nor any Writs to levy their expences or wages for their Service in Parliaments which it recites be produced before the reign of King Edward the 1. Nor was the name of Parliament which it mentions and writes of so much as used by any Author before the later end of King Henry the 3. his reign after whose reign this Modus was certainly compiled towards the end of K. Richard the 2. or after as other passages in it evidence beyond all contradiction This magnified Treatise be it genuine or spurious determines thus of the Kings and Lords rights to be personally present in all Parliaments The King is bound by all means possible to be present at the Parliament unless he be detained or let there from by bodily sickness and then he may keep his Chamber yet so that he lye not without the Manour or Town where the Parliament is held and then he ought to send for twelve persons of the greatest and best of them that are summoned to the Parliament that is two Bishops two EARLS two BARONS two Knights of the Shire two Burgesses and two Citizens to look upon his person to testifie and witness his estate and in their presence he ought to make a Commission and give Authority to the Archbishop of the Place the Steward of England and Chief Justice that they joyntly and severally should begin the Parliament and continue the same in his name express mention being made in that Commission of the cause of his absence thence which ought to suffice and admonish the OTHER NOBLES
and chief men in the Parliament together with the evident testimonie of the twelve Peers c. The reason is Because there was wont to be a cry or murmur in the Parliament for the Kings absence because his absence is hurtfull and dangerous to the whole Commonalty of the Parliament and Kingdom Neither indeed ought or may he be absent but only in the case aforesaid After which it follows The Archbishops Bishops and other chief of the Clergy ought to be summoned to come to the Parliament and also EVERY EARL and BARON and their PEERS OUGHT TO BE SUMMONED and COME TO THE PARLIAMENT c. Touching the beginning of the Parliament The Lord the King shall sit in the midst of the great bench and is bound to be present in the first and last day of Parliament And the Chancellort Treasurer and Barons of the Exchequer and Justices were wont to record the defaults made in Parliament according to the order following In the third day of the Parliament the Barons of the Cinqueports shall be called and afterwards the BARONS of England after them the EARLS Whereupon if the Barons of the Cinqueports be not come the Baronie from whence they are shall be amerced at an hundred marks and an Earl at one hundred pounds After the same manner it must be done to those who are Peers to Earls and Barons After which it relates the manner of placing the Earls Baron and Peers in Parliament Then adds The Parliament may be held and OUGHT every day to begin at one of the clock in the afternoon at which time the King is to be present at the Parliament and all the Péers of the Kingdome None of all the Peers of the Parliament may or ought to depart alone from the Parliament unless he have obtained and that in full Parliament leave from the King and all his Péers so to doe and that withall there be a remembrance kept in the Parliament roll of such Leave and Libertie granted And if any of the Peers during the term of the Parliament shall be sick or weak so as he is not able to come to the Parliament then he ought three dayes together send such as may excuse him to the Parliament or else two Peers must go and view him and if they find him sick then he may make a Proxie Of the Parliament the King is the Head the beginning and ending So this Treatise The Statute of 5 R. 2. Parl. 2. ch 4. enacts by Command of the King and Assent of the Prelates Lords and Eommons in Parliament That all and singular persons and Commonalties which from henceforth shall have the Summons of the Parliament shall come from henceforth to the Parliament in the manner as they be bound to doe and hath been accustomed within the Realm of England of old time And every person of the said Realm which from henceforth shall have the said Summons be he Archbishop Bishop Abbot Prior Duke Lord Baron Baronet Knight of the Shire Citizen of City Burgess of Burgh or other singular person or Commonalty do absent himself or come not at the said Summons except he may reasonably or honestly excuse himself to our Soveraign Lord the King he shall be amerced and otherwayes punished according as of old time hath béen used to be done within the said Realm in the said case Which relates unto and agrees expresly with that forecited out of Modus tenendi Parliamentum which took it out of this Act. If then all the Lords Peers in Parliament are bound to attend in Parliament being oft times there all called for by name and ought not to depart from it without the Kings and Houses leave under pain of Amercement and other punishment as this Statute resolves and 3 Ed. 3.19 Fitzh Coron 161. Stamford l. 3. c. 1. f. 153. Cook 4 Instit p. 15 16 17.43 28 E. 3. Nu. 1 2. 5 R. 2. n. 2. 8 H. 4. n. 55. and 31 H. 6. n. 45. Where fines were imposed on absent Lords most fully mamanifest then questionless they ought of right to sit in Parliament else it were the height of Injustice thus to fine them In the tenth year of King R. 2. this King absented himself from his Parliament then sitting at Westminster residing at Eltham about forty daies and refusing to come to the Parliament and yet demanding from them four Fifteens for maintenance of his Estate and outward Warres Whereupon the whole body of the Parliament made this answer That unless the King were present they would make therein no allowance Soon after they sent the Duke of Glocester and Bishop of Ely Commissioners to the King to Eltham who declared to him among other things in the Lords and Commons behalf how that by an old Ordinance they have an Act if the King absent himself 40 dayes not being sick but of his own mind not heeding the charge of his people nor their great pains and will not resort to the Parliament they may then lawfully return to their Houses And now sir said they you have been absent a longer time and yet refuse to come amongst us which is greatly to our discontent To which the King answered Well we do consider that our own people and Commons go about to rise against us wherefore we think we can do no better than to ask aid of our Cosen the French King and rather to submit us to him than unto our own subjects The Lords answered Sir that Counsell is not best but a way rather to bring you into danger c. By whose good perswasions the King was appeased and promised to come to the Parliament and condiscend to their Petitions and according to his appointment he came and so the Parliament proceeded which else had dissolved by the Lords departure thence in discontent aâ—d the Kings wilfull absence Ranulf de Glanvil the first writer of our Common Laws in his Prologue to his book De legibus consuetuainibus Regni Angliae used in the reign of King H. the 2. under whom he flourished and his Predecessors writes thus of the Parliamentary Councils in that age and their Members power to enact Laws Leges Anglicanas licet non scriptas leges appellari non videtur absurdum cum hoc ipsum Lex sit quod Principi placet et legis habet vigorem eas scilicet quas super dubiis in Consilio desiniendis Procerum quidem Concilio et principis accidente authoritate constat esse promulgatas And lib. 13. cap. 32. f. 110. Cum quis itaque infra assisam Dom. Reg. id est infra tempus A Dom. Rege de consilio Procerum adhoc constitutum quod quandoque majus quandoque minus censetur So as the Parliaments under this King and his Ancestors consisted only of the King and Nobles who then made and enacted Laws by the Kings royal assent without any Knights Citizens or Burgesses elected by the people of which I find no mention in the Parliamentary Councils under
the Commons may sit alone as Cyphers but not as a Parliament or Council to vote impose or act any thing that is binding to the people since regularly they neither are nor ever yet were in any age no more a Parliament in any case without the King and Lords then the King and Lords alone are now a Parliament though antiently they were so of themselves without the Commons or the trunk of a man a perfect man without head or shoulders If 3. be joyntly impowred or commissioned to do any act by Commission Deed or Warrant any one or two of them can doe nothing without the third If many be in Commission of the Peace Sewers or the like three of the Quorum joyntly to act therein joyntly if any one of the three be absent or dead all the rest can doe nothing because their authority is joynt not single In Parliament it self if either house appoint a Committee of 3 5 or 7. to examine act or execute any thing if but one of this number be absent or put out the rest can doe nothing that is legal or valid even by course of Parliament neither can either House sit and vote as a House unlesse there be so many Members present as by the Law and custom of Parliament will make up an House as every mans experience can inform him If these Levellers then will absolutely cut off or exclude the King or Lords from the Parliament they absolutely null and dissolve it and the Act for continuing this Parliament cannot make nor continue the Commons alone together as a Parliament no more than the Lords or King alone without the Commons the King or either house alone being no Parliament but both conjoyned and enlivened with the Kings personal or representative presence The cutting off the head alone or of the head and shoulders altogether destroys and kills the body Politick and Parliament as well as the body natural If the King dies or resigns his Crown or be deposed the Parliament thereby is actually dissolved as it was resolved in the Parl. of 1 H. 4. n 1 2 3. 1 H. 5. n. 26. 4 E. 4.44 and Cooks 4 Institutes p. 46. The last Parliament of 21 Jac. dissolved by his death So if the Lords or Commons dissolve and leave their House without any adjournment or if the King by his Writ dismisse or dissolve either of the Houses the Parliament is thereby dissolved as the forecited Presidents and the latter clause of the writ for the election of Knights and Burgesses manifests And a new kind of Parliament consisting only of Commoners when the old one only within the Act for continuing this Parliament made up both of King Lords and Commons is dissolved neither will nor can be supported or warranted by the Letter or intention of this Law or any other Law custom or right whatsoever Ninthly All the Petitions of the Commons in all antient modern Parliaments to the King Peers for their redresse of grievances recorded in our antient Parliamentary Rolls The usual Prologue to most of our antient printed Statutes in the Statutes at large in Poulton The King at the request of the Commons of or by the assent of the Prelates Dukes Earls Barons and other great men there assembled hath ordained these things or Acts underwritten all Acts of Parliament now extant usually running in this form The King with the assent of the Lords Spiritual and Temporal in Parliament hath ordained And be it enacted by the Kings moct excellent Majesty the Lords Spiritual and Temporal in this present Parliament assembled The famous Petition of Right 3 Car. so much insisted on beginning thus Humbly shew unto our Soveraign Lord the King the Lords Spiritual and Temporal and Commons in Parliament assembled thus answered by the King Let right be done as is desired The Act for continuing this Parliament made by the King and Lords as well as by the Commons who never intended to exclude themselves out of this Parliament by that Act or that it should continue if either of them were quite dismembred from it with all Acts and Ordinances since Yea the very Protestation and Solemn League and Covenant taken by the Commons Lords and prescribed by them to all others throughout the three kingdoms which couple the Lords and Commons always together neither of them alone being able to make any binding Act nor Ordinance to the Subjects unlesse they both concurr and have the Kings royal assent thereto no more than one Member alone of the House can make a House and ranck the Lords always before the Commons and the King before them both so firmly hold forth establish the Lords and Kings undoubted Rights to sit and Vote in Parliament and decry this new invented Monopoly of a sole Parliament of Commons without King or Lords and that absolute Sovereign Power these Lilburnists new Lights have spied out and set up for them in Utopia that impudency it self would blush to vent such mad absurd irrational Frenzies and Paradoxes as these crack brain'd persons dare to publish and they may with as much truth and reason argue that one man is three that the Leggs and trunk of a man are a perfect man without head neck arms and shoulders or that the Leggs Ribs Bowels of the Body are and ought to be placed above the head neck shoulders as that the House of Commons are or ought to be an entire Parliament the sole Legislative Power the only Supreme Authority paramount both King and Lords who must not now have so much as a Negative voice to deny or contradict any of the Commons Votes or Ordinances though never so rash unjust dishonourable prejudicial or dangerous to the whole Kingdom as these new Dogmatists affirm Tenthly The Commons themselves in their joynt Declaration and Resolution with the Lords this Parliament concerning his Majesties late Proclamation 9 August 1642. printed by their special order declare and stile his House of Péers to be the Hereditary Counsellors of the Kingdom The like they declare in their Declaration of 16 January 1642. Mr. John Pym in his Speech at Guildhall in London 14 January 1642. made and printed by the Commons special order asserted That the Lords have an Hereditary interest in making Laws in this Kingdom The Commons House in their Remonstrance of the State of the Kingdom 15 December 1641. affirm That the Peers are the Kings Great Council That the King summoned the Great Council of Péers to meet at York the 24. of September and there declared a Parliament to begin the 3. of November following In which Parliament when the Lords and Commons met they add But what can we the Commons doe without the conjunction of the House of Lords and what conjunction can we expect there when the Bishops and Recusant Lords are so numerous and prevâ—lent thereby confessing that without the Lords concurrence who are the Great Council of the Realm the
Kings accusation at the Bar of the whole House And for my part I am resolved to speak well of those that have done me justice and not to doubt they will deny it me till such time as by experience I find they doe it And at that time he was so much for the Loâ—ds that he writes most disgracefully derogatorily of the Commons House and other his Confederates by his example tells them of their want of power injustice and illegal proceedings quarrels only with them and their Committees for their delays and injustice towards him telling them to their faces in many of his former and late printed Libels That they have no power at all to commit or examin him or any other Commons of England without the Lords nor yet to give or take an Oath That they are but a peece and lowest part of the Parliament not a Parliament alone That they can make no binding Votes Ordinances or Laws nor commit nor command any Commoner without the Lords and in one or two Pamphlets more he endeavours to prove them to be now no lawfull house of Commons at all nor would he ever acknowledge them to be so and that he would make no more conscience of cutting theirs and the Lords throats the Tyrants and Oppressors at Westminster than of killing so many Weasels and Polcats with many other like scurrilous and mutinous expressions His own printed Papers Petitions Actions therefore are an unanswerable confutation of his malicious coÌ„tradictions of their Authority and judicature since for their exemplary justice on him And he must either now re-acknowlege thâ—ir right of sitting voting judging in Parliament to be lawfull or else renounce his own former Petitions and addresses to them for justice retract all his former printed Papers asserting their judicature and extolling their justice yea disclaim their judgement for vacating his own sentence in the Starchamber their awarding him damages and passing an Order to recover them as meerly null and void being made before no lawfull nor competent Judges as now he writes since not elected by the Peoples Vote Let those his followers who admire him for his Law observe these his palpable invincible contradictions and be ashamed and afraid to follow such an ignorant erronious guide who writes only out of malice faction not of judgement as his contradictions evidence 13ly The Acts for preventing the inconveniencies happening by the long intermission of Parliaments And to prevent the inconveniences which may happen by the untimely adjourning proroging or dissolving the Parliament made this Parliament and assented to by the King at the Commons importunity confirm the Lords interest right to sit and Vote in Parliament beyond all dispute and give them now power to summon a Parliament themselves in some cases in default of the King his Chancellor and Officers 14ly The antient form still continued till this day of dismissing and dissolving Parliament the King licenseth THE LORDS and COMMONS TO DEPART HOME and TAKE THEIR EASE 37 E. 3. n. 34. 38 E. 3. n. 18. 40 E. 3. n. 16. 43 E. 3. n. 34. 45 E. 3. n. 8.13 47 E. 3. n. 7. and all Parliaments since proves their right of sitting in and attending the service of the Parliament in person without special license of the King dispencing with their absence during its continuance in despite of all ignorant cavils to the contrary The Kings license of them to depart being void and nugatory if not bound by Law to attend the Parliament in person as well as the Commons 15ly Finally this hereditary right of the English Barons Lords is demonstrated resolved in this very clause of their Patents of creation when first created Earls or Barons inserted into all Patents since 20 H. 2. and implyed by our Laws though not precisely mentioned in all the antient Patents of creation before Volentes per praesentes concedentes pro nobis haeredibus successoribus nostris quod praefotus A. Comes vel Baro c. S. haeredes sui masculi ut Comites vel Barones de S. in omnibus teneantur tractentur reputentur et eorum quilibet habeat teneat et possideat sedem et locum in Parlamentis nostris haeredum et successorum nostrorum inâ—ra regnum nostrum Angliae inter alios Comites vel Barones ut Comes vel Baro. Than which nothing than be more positive and direct in point I shall close up all the premises with two memorable Clauses in two writs of Summons to Parliament evidencing not only the undoubted right but absolute necessity of the Lords personal fitting voting and advising in our Parliaments In the Parliament held at York in the 6 year of King Edward the third the Archbishop of Canterbury with some other Bishops and Nobles being absent thereupon the Prelates Nobles Knights and Burgesses there present refused to act any thing and resolved they could conclude nothing by reason of their absence whereupon they prayed the King to adjourn the Parliament and by a new Writ to summon the Archbishop and all other Bishops and Lords then absent personally to appear at York on the day whereto the Parliament was adjourned under a penalty as is evident by these Clauses in the Writs of Summons then issued Rex é venerabili in Christo Patri eadem gratia Archiepiscopo Cantuar. c. Verum quia dictis negotiis in eodem Parliamento praepositis quae salvationem jurium Coronae nostrae regni nostri intimè contingunt Et nobis incidunt multum cordi per Praelatos Proceres Milites Comitatuum tunc ibidem praesentes deliberato consilio responsum existit quod in tam arduis negotiis sine vestri ac aliorum Prelat ac Magnat et Procerum prodictorum absentium praesentia consilium et assensum praebere non possunt nec debent Ita quod nobis cum instaâ— a suppli◠〈◊〉 Paâ—liam illud usque ad diem Mercurâ—iâ— octavâ—s Sancti Hilari prox iâ—de futur continuari seu proâ—ogari inteâ—im vos eâ— caeteros Prelatos et Proceres tunc absentes convocari faceremus Ac nos quanquam huâ—usmodi â—iâ—tio noâ—s dâ—mâ—sâ— eâ— periculosa plurimum videâ—tur eorum Petitioni in hac parte annuentes c. Parliamentum praedictum usque ad octav praedictas duximus continuandum seu prorogandum Ac Praelatis Magnatibus Militibus Civibus Burgensibus injâ—nximus quod tunc ibid. intersint quacunque excusatione cessante ac omnibus aliis praetermissis Ne igitur contingat quod absit dicta negotia ad nostri regni nostri damnum dedecus per vestri seu aliorum ABSENTIAM ulterius prorogari vobis in fide dilectione quibus nobis tenemini et sub periculo quod incumbit districte iniungendo mandamus quod omni excusatione cessanie sitis personaliter apud Ebor. in dictis Octab. nobiscum cum caeteris Praelatis Magnatibus dicti regni nostri super dictis negotiis tractaturus et
vestrum consilium impâ—nsurus Scientes quod si per VESTRAM ABSENTIAM CONTIGERIT dicta negotia quid absit ulterius retardari dissimulare non poterimus quin AD VOS EXINDE SICUT CONVENIT GRAVITER CAPIAMUS Teste Rege apud Ebor. 11 Die Decembris Eodem modo mandatum est 17 aliis Episcopis 13 Abbatibus 40 Magnatibus aliis And in another writ of Summons the same year to the same Archbishop of Canterbury there is this Clause inserted against making any Proxie Scientes pro certò quod nisi evidens et manifesta necessitas id exposcat non intendimus Procuratores seu Excusatores pro vobis admittere ea vice propter arduitatem negotiorum praedictorum Which Clause amongst other reasons was then inserted because the Clergy in a Parliament held at Eltham some two years before refused to grant this King an aid for the defence of Ireland by reason of the Archbishops absence from it adjourning their answer to this aid till they all and the Archbâ—shop assâ—mbled together in a future Convocation to be summoned by the Kings writ as the Claus Rol. An. 4 E. 3. m. 3. dorso recordâ— Thus the Bishops and Clergy refused to grant an aid to King Henry the 3. Anno 1232. and likewise another aid to the Pope Anno 1244. because many of the Bishops and Abbots who were summoned to the Parl. then held were not present Adding Tangunt ista Archiepiscopos necnon universos Angliae Praelatos cum ergo Archiepiscopi Episcopi alii Ecclesiarum Praelati sint Absentes in eorum praejuditiis respondere nec possumus nec debemus Ouia â—id â—cere praesumeâ—emus in prejuditium omnium Absentium fieret Praelatorum All excellenâ— Presidents both for the Lords and Commons in all succeeding ages not to vote or act any thing or grant any aids or Subsidies upon any occasion menace or intreaty whiles their Members who ought to be personally present are absent much more when forcibly secured or secluded by internal confederacy or external armed violence or the whole House of Peers sequestred or suppresâ—ed by factious seditious Levellers who now design their total and final extirpation out of their future New-modelled Parliaments Having thus impregnably evinced the Lords undoubted right to sit and vote in Parliament though they be not elective by the peoples voices as Knights and Burgesses are I shall next discover unto our illiterate Ignoramusses who oppose their right the justice good grounds and reasons of our Ancestors why they instituted the Lords to sit and vote in Parliament by right of their very Nobility and Peerage which will abundantly satisfie rational men and much confirm their right First the Nobles and Great Officers in all Kingdoms and in our Kingdom too in respect of their education birth experience imployments in military State-affairs have always been generally reputed the wisest most experienced Common wealths men best able to advise Counsel the King and kingdom in all matters of Government Peace or War as our Historians Antiquaries Polâ—tians Records acknowledge and attest whence they were antiently stiled Aeldermen Wisemen Magnates Optimates Sapientes Sapientissimi et Clarissimi viri Conspicui Clarique Viri Primates Nobiles c. in our Historians and Records our Parliaments in that respect being frequently stiled in antient times Concilium SAPIENTUM upon which Grounds our Kings Lords and Commons too when ever they recommended Councellors of State to the King in Parliament made choice of Lords and other Peers for for their Privy Councellors as most wise able discreet Therefore it was thought fit just and equal the King should ever summon them to the Parliament by his Writ without any election of the people for their own inherent wisdom excellency valour learning worth the Original cause of advancing enobling them at first as is expressed in their Patents and evident by these Scripture Texts Esth 1.13 14. Isay 19.11 12 13. Jer. 5.5 c. 10.7 c. 51.57 Dan. 2.48 c. 6.1 2 3. Gen. 41.39.40 Psal 105.21 22. compared together This ground of calling the Nobles to the Parliament is intimated in the very words of the summons Et ibidem VOBISCUM Colloquium habere tractare de arduis urgentibus Regni Ecclesiae Anglicanae negotiis VESTRUMQUE CONSILIUM IMPENSURI c. Et hoc nullatenus omittatis which clause recited in the Commons writs of election likewise implies them to be men of most wisdom and experience able to counsel and advise the King in all hit weighty arduous affairs both of the Kingdom and Church whence by Hereditary antient right they are THE KINGS GREAT COUNCEL and so acknowledged by the Commons themselves this last Parliament I could give many instances wherein the Commons in Parliament have extraordinarily applauded the Lords and Peers for their great wisdom and specially desired their wholsom Counsel as persons of greater wisdom and experience than themselves but for brevity sake I shall cite only these ensuing Records In the Parliament of 21 Edw 3. rot Parl. n. 4 5. Wil. de Thorp in the presence of the King Prelates Earls Barons and Commons declared that the Parliament was called for two causes The first concerning the wars which the King had undertaken by the consent of the Lords and Commons against his Enemies of France The second how the Peace of England may be kept Whereupon the King would the Commons should consult together and that within four days they should give answer to the King and his Counsel what they think therein On the fourth day the Commons declare That they are not able to counsel any thing touching the point of War wherefore they desire in that behalf to be excused And that the King will thereof advise with his Nobles and Council and what shall be so amongst them determined they the Commons will thereto assent confirm and establish By which it is evident the Commons then reputed the Nobles more wise and able to advise the King in matters of war than themselves who confessed their inability therein and therefore submitted to assent to whatever the Nobles and Councel should therein advise Him 28 Edw. 3. n. 55 58. The Commons submit the whole businesse of the Treaty of peace with France to the order of the King and of his Nobles And 36 Edw. 3. n. 6. The LORDS only advise the king touching Truce or War with Scotland In the first Parliament of 15 Edw. 3. n. 11. the Commons having delivered in divers Articles concerning the redress of grievances and publike affairs to the King prayed that unto the Wednesday ensuing their Articles may be committed to the Bishops Barons other wise men there named by them to be amended which the king grauted whereas the Lords exhibited their Articles apart to the king and the Bishops their Articles apart in this Parliament and protested that they ought not to answer but in open Parliament by and with their
indignatione Postea vero ne oblivio tenorem responsionis Baronum deleret in scriptum taliter haec redacta Cum dominus Eboracensis Archiepiscopus et omnes Episcopi Angliae Abbates Priores per se vel per Procuratores suos necnon OMNES COMITES fere OMNES BARONES ANGLIAE ad mandatum domini Regis convenissent apud Westmonasterium die Martis proxima ante Purificationem beatae Mariae Anno Dom. 1242. Regni Henrici 3. Regis 26. audituri Domini Regis voluntatem et negocium pro quo ipsos mandaverat Et idem Dominus Rex transmittens ad eosdem dictum dominum Eboracensem et nobilem virum dominum Comitem Richarduum et dominum W. de Eboraco Praepositum de Beverlaco super voluntate Domini regis in negociis suis scilicet eisdem expositis per eosdem solennes nuncios omnes Magnates de regno suo rogasset de consilio ei dando et auxilio faciendo ad haereditatem suam jura sua perquirenda in partibus transmirinis quae spectabant ad Regnum suum Angliae tandem dicti Episcopi Abbates Priores Comites Barones magno inter eos tractatu praehabito inprimis Domino Regi per praedictos Magnates dederunt consilium videlicet Quod Dominus ipse Rex expectaret finem Treugarum inter eum et Regem Franciae initarum Et si forte idem Rex Franciae contra formam earundem treugarum aliquas fecisset interprisas tunc dictus Rex Angliae mitteret ad eum solennes nuncios ad rogandum monendum et inducendum ipsum Regem Franciae ut treugas initas teneret et interprisas emendaret si quae per ipsum vel per suos factae essent Quod si Rex Franciae facere contradiceret libenter ad hoc consilium apponerent pro posse suo de auxiliis ei dando Omnes ita unanimiter responderunt Similiter postquam fuerat Dominus eorum multoâ—ies ad instantiam suam ei auxilium dederunt Videlicet tertiam decimam mobilium suorum et postea quintam decimam et sextam decimam et quadragesimam Carucagium Hydagium et plura Scutagia et postea unum magnum Scutagium ad sororem suam Imperatricem maritandam Postea vero nondum quatuor annis elapsis petit ab eis iterum auxilium et tandem cum magna precum instantia obtinuit tricessimam quam ei concesserunt tali scilicet conditione quodilla exactio vel aliae precedentes amplius non traherentur in consequentiam Et inde fecit eis Chartam suam Et praeterea concessiâ— eis tun Quod omnes Libertates contentae in Magna Charta ex tunc in antea plenius tenerentur per totum regnum suum inde fecit eis quandam parvam Chartam suam quam adhunc habent in qua eaedem continentur Praeterea Dominus Rex concessit eis de voluntate sua et de consilio torius Barnagii sui quod tota pâ—cunia ex dicta tricesima proveniens salva deponeretur in Castris Domini Regis sub Custodia quatuor Magnatum Angliae scilicet Comitis Warranniae et aliorum per quorum visum et consilium pecunia illa expenderetur ad dicti Regis Regni utilitatem cum necesse esset Et quia Barnagium nescit nec audâ— it quod de dicta pecunia per visum vel consilium alicujus quatuor Magnatum praedictorum aliquid expendatur credunt firmiter bene intelligunt quod Dominus Rex adhuc totam habet illam pecuniam integram de qua nunc potest magnum habere auxilium Praeteria bene sciunt quod post tempus illud tot habuit escaetas scilicet Archiepiscopatum Cantuariensem plures Episcopatus Angliae ditiores terras Comitum Baronum militium de eo tenentium defunctorum quod solummodo de illis escaetis debet ipse habere grandem pecuniae summam si bene custodiatur Praeterea a tempore dictae tricessimae datae non cessaverant Justitiarii itinerantes itinerare per omnes partes Angliae tam de placitis forestae quam de omnibus aliis placitis ita quod omnes Comitatus Angliae omnia Hundreda Civitates Burgi fere omnes villae graviter amerciantur Unde solummodo de illo itinere habet Dominus Rex vel habere debuit maximam summam pecuniae si persolvatur bene colligatur Unde bene dicunt quod per illa amerciamenta per alia auxilia prius data omnes de Regno ita gravanâ—ur depauperantur quod parum aut nihil habent in bonis and may not we now more truly say so after so many years uncessant importable Taxes Excizes Impositions Contributions Exactions of all kinds without any interruption in far greater proportions than these amount to and all sequestrations sales of Delinquents and others estates not known in that age Et quia Dominus Rex nunquam post tricessimam datam nor our present Rulers after all their Protestations Declarations Remonstrances Votes Leagues and Covenants to preserve our Laws Liberties Properties Great Charters and the Petition of Right and all our contributions Excises Loans or publike faith c. Cartam suam de libertatibus tenuit imo plus solito postea gravavit as now per aliam Cartam eis concerâ—am quod Exactiones hujusmodi non traherentur in consequentiam responderunt eidem Domino Regi praecise Quod nullum ad praesens ei facerent auxilium A fit answer for all our Nobles and Commons in this age after so many years Taxes Imposts Excises far heavier than any complained of in that age Veruntamen quia Dominus eorum est sic se gerere poterit erga eos usque ad finem dictarum treugarum quod tunc bonum apponent consilium pro posse suo Et cum dicti Magnates Nuncii ipso Domino Regi nunciassent Responsum redeuntes ad Barnagium dixerunt quod in parte sufficiens Domino Regi dederunt responsum I have transcribed these memorable passages of this Parliament out of Matthew Paris thus largely in his own words for sundry reasons pertinent to my Theam 1. To prove that the Archbishops Bishops Abbots Peers Earls Barons Lords were the only Members of this all the former and most other succeeding Parliaments in Henry the 3 his reign this Historian who is most exact making mention of them only both in the summons to their debates in Parliament and this their Remonstrance in Parliament even in this case of ayds demanded and not of any Knights Citizens or Burgesses elected by the people of which there is not one syllable 2. To manifest that the Earls Lords and Barons of the Realm have most unanimously resolutely magnanimously opposed our Kings in Parliaments in their unjust designs and in Ayds Taxes demanded and earnestly begged importuned from them without any effect resisting our Kings therin to their faces and withstanding all their wiles pollicies King-crafts and private sollicitations perswasions
in electing Members both in antient Boroughs and Counties by subjecting them to new imprisonments forfeiteres of Estate life and trials by Marshal Law in sundry particulars against this Charter instead of easing them of their long-continued illegal Taxes Excises Imposts Imprisonments Confinements c. confirming their former Liberties Franchises Properties Parliamentary privileges punishing the manifold high violations of them with those ill Councellers Projectors who were the chief contrivers of these intollerable grievances and resuming the antitient dissipated Lands Revenues of the Crown which should defray al publik ordinary expences yea how instrumental some of them have been to promote the desperate designs Practises Conspiracies of the Pope and Jesuits themselves now swarming amongst us under sundry disguises to ruine both our Kings Parliaments Church and State is so experimentally visible and well known to them all that I hope the consideration thereof compared with the forecited Presidents of our noble Ancestors and Parliamenâ—s will strike such a confusion of face such a compunction of heart into them for this their degeneracy Apostacy and breach of publike trust that they will now at last to regain their own lost reputations publikely renounce and abhor their former Exorbitances and study to equalize out act those their heroick predecesors by regaining re-establishing our lost Great Charters Laws Properties Liberties Parliaments privileges Peerage and make us once more a free thereby a happy and united Kingdom Church Nation that so they may be deemed worthy to sit vote in our future Parliaments It is storied of our renowned victorious warlike King Edward the 1. that in a Parliament held at Westminster in July 1297. he ascended upon a wooden scaffold before the great hall there with his Son Prince Edward the Archbishop of Canterbury and Earl of Warwick and there before all the people standing by erumpentibus lach ymis veniam de commissis humiliter postulavit dicens se minus bene tranquilliter quam Regem deceret ipsos rexisse portiunculas facultatum suarum quas sibi dederaut seu quas ministri ejus ipso inscio extorserant ideo acceptasse ut in â—urâ—osos hostium conatus sitientium sanguinem Anglicanum sumpta Rei publicae particula massa quietius possidendo potentius expugnaret Et addens ecce expositurus meipsum discrimini propter vos peto si rediero suscipiatis me velut in presentia habetis ABLATA OMNIA REDDAM VOBIS c. If our late or present all-swaying Governors Officers Swordmen will now make but the self same ingenuous acknowledgement as he before all the people that they have not governed them so well and peaceably as they should have done and became them to do that they and their Officers have much oppressed extorted from them not small but great sums of Money by undue and exorbitant means against their wills though with a publike intention to conquer those Enemies more effectually who thirsted after English blood for whose safety they are still ready to adventure their lives That they have sought their own wealth advantage honour preferment more than the publike or peoples welfare thereupon shall with weeping eyes humbly beg pardon of the whole Nation and those particular persons they have any ways ruined or oppressed and promise them full reparation of their injuries and what ever they have unjustly taken from them as this noble King Edw. did and confirm and enlarge all their Great Charters Laws Liberties as fully as freely as he then did upon his Nobles importunity they may then expect that reciprocal Love and dutifull respect to them as the Archbishop with the people then promised to King Edward and his Son with stretched out hands and be deemed worthy to sit and vote in Parliament notwithstanding their former miscarriages exorbitant arbitrary Ordinances and Provisions of which if they repent not I fear in conclusion what Matthew Westminster records of the Barons provisions at Oxon. Lewes and London will be recorded of them to Posterity Haec de provisionibus imo DE PRODITIONIBUS Oxon Lewens Londini dicta sufficiant quae variis aequitatis justitiae fictionibus dealbatae intus autem plenae Versutiae Provisores suos pessime prodiderunt which some of our late swaying republican Legislators have already found true by sad experience Fourthly our Nobles are persons of greater Estates Families Fortunes than others contribute most to all publike Taxes charges and have more to keep and lose than other ordinary Commoners and therefore in respect of themselves their families kinred tenants reretainers allies have greater interest in the Common-wealth and State affairs than they We see by Common experience in all kingdoms Nations and our own Realm that mens great estates innoble and inable them to bear publike Titles Places of Honour Dignity Trust Power as to be Lords Knights Esq Privy Counsellors Justices Sherifs Mayors Aldermen and the like which persons of mean fortunes unable to support these Dignities Offices places of trust and expence likewise are uncapable or unable to bear or manage Wherefore our Ancestors thought it meet just equal that they should have this privilege among others above ordinary Commoners to be present in all our Parliaments by Patent and Tenure only and that of right ex debito justitiae not by election as Knights Citizens and Burgesses are being persons of meaner estate quality and present in Parliament only in the right of others who elect them not in their own rights as the Lords are whose estates antiently were and still are far more worth yea their publike payment greater than many whole Burroughs put together and their families retainers followers far more in number And so their engagements to maintain the Laws Liberties properties of the Subject farr greater than inferiour mens Upon which ground all Barons and Peers of the Realm in cases of debt and executions are free from arrests of their bodres because by reason of their estates and Dignities the Law intends they have lands and assets to satisfie all their debts Fifthly It is one principal property of Members of Parliament to be constant stout inflexible and not to be bowed or turned from the right the publike good or liberties by fear favour promises rewards Now Peers of noble birth education and more generous heroick spirits than the vulgar sort of men are not so apt to be over-awed with regal threats terrified with menaces tempted with honours preferments wealth which they already injoy in a higher proportion than others nor seduced with rewards and privat ends from the common good and interest wherein their honour wealth safety are imbarqued as ordinary Commoners and men of meaner rank and fortunes are which experience of former ages and this present manifests Therefore it was thought just and reasonable by our Ancestors that the Nobles in this regard should sit in all our Parliaments in their own rights without the peoples election and to leave the people to
elect such other persons to represent assent and vote for them in Parliament in whom they most confided Sixthly our Peers in Parliament though they there serve for the good of the whole Kingdom which hath always trusted to them in matters of Counsel Judicature and making Laws yet they represent no persons but themselves only or their families Tenants Friends and Allies which depend upon them and bear their own expences which are so great and chargeable that the Abbot of St. James without Northampton in the Parliament of 12 E. 2. and the Abbot of Leicester in the the 26 of E. 3. being summoned to Parliament petitioned and procured themselves and their successors to be exemped from any future summons to and attendance in the Lords House as Barons of the Realm both because they held no lands of the King by Barony but only in frank almoign and their Predecessors had not formerly or usually been summoned to Parliaments sed vicibus interpolatis only And likewise because it would tend to the great grievance and loss of them and their houses and much impoverish them by reason of the great expence it would bring upon them One Peer and his retinue expending more every Parliament than the wages of 40 or 50 Knights and Burgesses amount to Wherefore there is no shadow of reason why the people should elect them since they doe not represent them nor pay them wages as they doe to their Knights Citizens Burgesses who serve for and represent them Wherefore their Levelling Oppugners may as well argue That our Nobles ought to be elected by the people to their Honors Lands Estates which descend unto them from their Ancestors not from the common people as that they ought to sir in Parliament by the peoples election only to represent themselves in their own right not the people And that the Knights of the Shire ought to be elected to their dignity of Knighthood which the King only confers on them or to their Lands and Freeholds which they enjoy in their own right because they are elected by the Free-holders to sit in Parliament in their right who elected them nor their own alone which Barons doe not 7ly On these grounds the suppressing debasing captivity or slaughter of the Princes Lords and Nobles of a kingdom or Nation is by God himself defined to be an immediate forerunner concomitant cause of the Kingdoms Nations ruine and slavery and a matter of great lamentation Ezech. 19.1.14 c. 17.12 Lam. 1.6 c. 2.2 c. 5.12 Prov. 19.10 c. 30.21.22 Eccl. 10.5 7. Isay 3.4 c. c. 34.11 12 13. c. 40.23 c. 43.28 Jer. 4.9 c. 27.20 c. 29. c. 25.18 19. c. 50.35.41 51 55. c. 52.16 Hos 7.16 Amos 2.15 c. 2.2 3. 2 Kings 24.14 Mich. 3.7 2 Chron. 24.23 Jer. 24.8 9. And the continuing of Kings Princes and Nobles in honour and power in any kingdom and nation are reputed and resolved by God to be the greatest honour happiness defence safety and preservation of that kingdom and people Jer. 17.24 25. c. 22.4 Eccles 10.17 Jer. 30.21 Psal 68.27 28. Prov 8.15 16. Isay 32.1 1. Chron. 23.2 c. c. 28.1 c. c. 29.24 25. Gen. 17.6.16 c. 35.11 2 Sam. 11 12. 1 Chron. 14.2 c. 28.4 5. c. 2 Chron. 2.11 c. 9.8 1 Kings 11.32 36. 2 Chron. 21.6 7. 2 King 8.18 19. 1 Kings 15 45. 2 Chron. 23.3.11.20 21. c. 9.26.27 Numb 24.7 Ezech. 37 22 29. Mich. 2.13 c. 4.8 Therfore they cannot be rejected suppressed by us now without apparent danger ruine and desolation to our kingdom whatever frantick Levellers and others fancy to the contrary who would be more than Kings and Lords themselves over the Nation could they once suppress both King and Lords as they design and endeavour By all which premises it is most apparent That our Lords and Barons sitting voting in Parliament who if you take them poll by poll have in all ages been more able Parliament-men States-men in all respects than the Commons though chosen by the people who alwayes make not choice of the best and wisest men as experience manifests is not only just lawfull in respect of Right and Title but originally instituted upon such grounds of Reason Justice Equity Policy as no rational understanding man can dislike or contradict but must subscribe to as necessary and convenient and so still to be continued supported in this their Right and Honour to moderate the Excesses Encroachments both of King and Commons one upon the other and keep both of them within their just and antient bounds for the kingdoms peace and safety The rather for that the very Act made this Parliament for the preventing of inconveniences happening through the long intermission of Parliaments not only enacts and requires ALL the Lords and Barons of this Realm to meet and sit in every Parliament under a penalty but likewise prescribes an Oath to the Lord Keeper and Commissioners of the Great Seal under severe penalties to send forth Writs of Summons to Parl. TO THEM ALL and in their default enables and enjoyns the Peers of the Realm or any twelve or more of them to issue forth Writs of Summons to Parliament under the Great Seal of England for the electing of Knights Citizens and Burgesses which Act will be meerly void and nugatory if their Votes and Right to sit in Parliament be denyed or the House of Peers reduced to the House of Commons which this very Statute doth distinguish Now whereas our whimsical Lilburnists and Levellers object that the Lords have no right to sit or vote in our Parliaments because they are not elected as Knights and Burgesses by the people under which Notion alone when thus elected they will admit them a place and vote in the Commons house but not otherwise I must inform these Ignoramusses that by the Laws Statutes of our Realm and the custom resolution of our Parliaments the Earls Lords and Barons of the Realm are altogether uncapable of being elected Knights or Burgesses to serve in Parliament and their elections as such meerly void and null in Law to all intents This is most apparent 1. By the very words of the writs of Summons to the Lords whereby they are summoned Nobiscum cum caeteris Praelatis Magnatibus et Proceribus dicti Regni nostri colloquium habere tractare c. vestrumque consilium impensuri c. not to treat conferr and consult with the Knights Citizens and Burgesses 2. By the express words of the Writs for the electing of Knights Citizens and Burgesses which have the same clause and then enjoyn the Sherifs to cause to be elected and returned duos Milites magis idoâ—eos discretos Comitatus praedicti de qualibet Civitate duos Cives de quolibet Burgo duos Burgenses de discretioribus magis sufficientibus c. ad faciendum et consentiendum hiis quae tunc c. Which disables them to elect any Lords or
unless a Peer by birth or creation those who are called to it only by general or special Writs not being formerly for life or inheritance Peers Nobles or holding by Barony of the King being only Assistants to the Lords as the Judges and others usually are not Members having votes It is the opinion of Sir Edward Cook in his Institutes on Littleton That if the King call any Layman to the Vpper house of Parliament generally by his Writ which he there recites that this alone doth create him a Baron and Lord of Parliament in fee simple without the word heirs and ennoble both himself and his heirs after him so as to make them hereditary Barons And this is the received opinion of most Grandees of the Law relying only upon his bare Ipse dixit though sometimes mistaken in his Judgement and frequently in his Records and Presidents whereon hee grounds his Opinion although he cites no president nor record at all to make good his Assertion in this case But under the favour of this Great Oracle of Law I conceive this Opinion of his to be no Law at all but a meer mistake for these ensuing reasons 1. Because there is not one word or syllable in this general Writ of Summons that gives him either the Name Title Honor or Dignity of a Lord or Baron of the Realm Therefore it cannot in Law or reason create him such a one If he were a Knight an Esquire a Master or Gentleman or Judge when the Writ was directed to him it gives him only that Title and summons him only by it without stiling him a Lord Baron Earl Viscount or Peer of the Realm at all Therefore it cannot ennoble nor create him one much less ennoble his posterity and give him an hereditary Barony without the word heirs since the Writ is only personal directed to himself alone 2. Because the Kings end and intention in summoning him to Parliament by this Writ is not to ennoble and create him a Lord Peer or Baron much less to ennoble his Posterity after him but only to consult and treat with him and the Prelates Lords and Nobles of the Realm concerning the affairs there propounded As this clause of the Writ demonstrates which only must ennoble him and his heirs if any to come to the Parliament at such a day and place that so the King may VOBISCUM with him not his heirs cum Praelatis Magnatibus Proceribus dicti regni nostri colloquâ—um habere tractatum Which word VOBISCVM being distinguished from cum Praelatis Magnatibus Proceribus Regni can not possibly create him a Lord or Baron no more than a Prelate of the Realm the rather because the word Baro is not in the Writ Neither can the following clause create him one Viz. dictis die loco personaliter intersitis Nobiscum cum Praelatis Magnatibus Baronibus supradictis super dictis Negotiis tractaturis vestrumque Consilium impensuris because it neither gives him the name nor stile of a Lord or Nobleman much less of a Baron no more than of a Prelate and summons him not to be a Lord Earl Prelate or Baron of the Realm but to be personally present with them which he may be though a private person and no Lord and to treat and give his advice with them concerning the businesses there propounded the only end for which he is summoned not to be their fellow Peer Lord or Baron So that it is against all sence and reason to aver that such a general Writ as this can create himself much less his Posterity Lords or Barons of the Realm in perpetuity It is a rule in Law and oft resolved That the Kings grant shall not inure to two intents nor pass or give two things at once especially when one of them only is expressed the other not Therefore this writ of the King shall not-doe it to create the party summoned a Baron meerly by implication which is not expressed and to summon him to conferr treat and give his advice in Parliament which is the only thing intended and clearly expressed 3ly The Writ summons him only to that particular Parliament then to be held at one certain day and place not to any other much less to all future Parliaments to be held Therefore it cannot create him and his heirs hereditary Barons and Members of the Lords House no more than the Writ for electing Knights Citizens and Burgesses for that particular Parliament makes them and their posterity Knights Citizens and Burgesses of Parliament for perpetuity It being both contrary to the words and intention of the Writ to make him much less his heirs Members of all succeeding Parliaments to which they must still be summoned by New Writs 4ly No Lord or Baron is or can be legally created but of some particular place Town City or the like whereof he is stiled Earl Lord or Baron But the general writ of summons gives him no such particular stile or title of dignity confined to such a certain place Therefore it cannot create him either a Lord or Baron or if it doth it must be sine titulo which were absurd 5ly No Duke Earl when created Viscount Lord or Baron is or can be created a Peer of the Realm by the Kings Letters Patents for life in tayl or see simple without expresse words in the Patent creating him such a one for life or him and the heirs males of his body or his heirs in general Dukes Marquesses Viscounts Earls Lords or Barons of such a particular place as all their Patents whereof you have sundry Presidents in Mr. Seldens Titles of honour lib. 2. ch 5. throughout and our books of Heraldry plentifully manifest And in all late Patents of creation since 20 H. 8. of any Dukes Marquesses Earls Viscounts or Barons there is a special clause inserted enabling them and their heirs males and every of them to have hold and possess a seat and place in the Parliam of us our heirs and Successors within the Realm of England among other Dukes Marquesses Earls Viscounts Lords and Barons of the Realm as a Duke Marquesse Earl Viscount Lord or Baron as Mr. Selden and their Patents inform us and I have formerly touched p. 49. If then the king by his Letters Patents cannot create men Nobles and Peers of Parliament for life in tail or see simple without these special and particular clauses then by the self same reason he cannot create them such by his writ unlesse it hath such special words and clauses in it and not by the general writ of summons forementioned wherein there is not one clause or syllable tending to such a particular personal or hereditary creation The rather because Sir Edward Cook himself confesseth that the Creation by Letters Patents is the surer though by writ be the antienter way for he and his posterity may sufficiently be created and made Noble by Letters Patents though he to whom they
and otherwise punished for their contempt because bound therto by their voluntary acceptance of such a special Patent and dignity But if they be summoned only by a general Writ against their wills being no Lords of Parl. by special Patent or Writ before this doth neither make the one nor other Barons nor ennâ—ble their heirs males or successors nor oblige them to serne nor subject them to any fine for contempt for then the King by his Writ might summon all the Knights Esquires Gentlemen and any other Commoner Freeman Lawyer Clergy man of the Realm to the Lords House as a Member at his pleasure and fine them for a contempt in not appearing and thereby increase that House in infinitum and make it a mungril House of all sorts of degrees and professions of men instead of aâ— House of Lords to its utter subversion against the fundamental constitution and privilege of that House Therefore such Writs of summons must be void and null in Law as well as the Patent to Abbot Banham as Sir Ed. Cook asserts it for that he was neither Baro nor held per Baroniam Now whereas he asserts That Knights and Esquires who hold not by Barony cannot refuse when summoned by Writ to serve the King in Parliament but yet Abbots and other regular Prelates that hold not by Barony may because they are dead in Law as to secular affairs and therefore not capable to have voice in Parliament unless they hold by Barony and were called by Writ This reason of the difference is most absurd and unreasonable For 1. They are both Subjects to the king alike and so both equally obliged to serve and counsel him in Parliament 2ly If their tenures by Barony could make them capable to have place and voice in Parliament though dead in Law quoad secularia then much more the kings and the kingdoms need of their presence counsel and advice in Parliament touching the weighty affairs concerning himself and the defence and preservation of the Realm and Church of England when specially summoned by his writ to Parliament 3ly Though they were dead in some sence only in respect of their natural capacities to the world yet in their politick capacities they were not so but secular still to sue purchase advise c. as well as Laymen in the right of their Houses 4ly Parliaments being always summoned as well to advise of Ecclesiastical things touching the Church as of temporal things concerning the Realm of England their being dead to the world quoad secularia could no more enable them to refuse to serve in Parliament then Laymen quoad Ecclesiastica negotia therein treated of which concerned the Church and Laymen according to the doctrine in Popish times might as well refuse to serve in Parliament when summoned because they were no Ecclesiastical or religious persons who were properly to consult of the affairs of the Church of England as religious persons be exempted from and refuse to serve therein because dead to the world quoad secularia negotia concerning the King and Realm of England there debated and consulted of 4ly The true and only ground then why such Abbots Priors and all other Clergy men who held not by Barony might refuse to serve in the Lords House of Parliament when summoned by Writ was this that they held not of the King by Barony and upon this ground alone the Abbot of St. James without Northampton summoned to Parliament by Writ Anno 12 Ed. 2. upon his Proctors appearance and Petitions for him in Parliament recorded at large by Mr. Selden out of the Leger-book of the Abby worthy perusal being most full in point was discharged from his attendance his name struck out of the Roll and Register of the Chancery by the Chancellor and his Council as not one of the list of those who ought to be summoned for this very reason because NON TE NET PER BARONIAM nec de Rege in capite sed tantum in puram perpetuam Eleemosynam nec ipse Abbas nec Predecessores sui unquam in Cancellaria irrotulari fuerunt except only in 49 H. 3. m. 10. Schedula voluntarie nec ad Parliamentum citati hucusque VNDE PETIT habuit remedium And upon the self same reason the Abbot of Leicester and his successors were by special Patent in 26 E. 3. de veniendo ad Parliam Consilia nostra et haeredâ—m nostrorum de caetero quieti sint et exempti in perpetuum hough this Abbots predecessors had formerly been summoned to and sate in Parliaments interpolatis vicibus but noâ— continuè because idem Abbas aliquas terras senteâ—ementa de Nobis per Baroniam seis aâ—o modo non tenet per quod ad Parliamenta seu Consilia nostra venire teneatur The King reciting this as the only ground of his exemption and thereupon Nolentes Abbatâ—m indebite sic vexari granted him and his successors this Patent of Exemption upon which his name was cancelled in the Clause Roll of 25 E. 3. part 1. m. 5. dorso and this written in the margin against it Abbas Leicestriae cancellatur quia habet cartam Regis quod non compellatur venire ad Parliamentum And that of Dors Claus 11 E. 3. par 2. m. 11. 13 E. 3. par 2. m. 28. 1. cited by Mr. Selden Sir Edw. Coke in his Margin mentioned in a Bill in Parliament Que toutes les religioses que teignont per Barony sayent tenus de venier au Parlament is also direct iâ— point That those who hold not by Barony are not bound to serve in Parl. be they Religious persons or Lay persons who are not Peers or Lords of Parliament upon general writs of summons such Summons of them being AN UNDUE VEXATION OF THEM as King Edward stiles it in his Patent unless they voluntarily appear upon such a Summons as this Patent informs us those who were summoned in 49 H. 3. all did This reason therefore exempting all Abbots Peers and religious persons from service and attendance in the Lords House in Parliaments though summoned thereto by writ must necessarily exempt all Knights and Laymen from it there being the self same ground justice equity for it in both yea the selfsame unjustice vexation mischief to both and by consequence the selfsame Law And if this be Law as these Presidents Judgements Records expresly resolve it to be beyond contradiction Then it inevitably follows that the General writ of Summons to Parliament alone doth neither create the persons summoned to it nor their heirs or successors Barons Lords or Peers of the Realm unless they hold by Barony no although they sit once or twice in Parliaments by vertue of them or interpolatis vicibus but not continue as the Abbots of Leicester did for then they could not allege or plead their not holding Lands of the King in Barony or any other tenure binding them to sit and serve in Parliament
in barr of the Writs of Summons directed to them because those writs themselves did ennoble and make them their posterity successors Peers of Parliament though they held no Lands by Barony 8ly it is undeniable by sundry presidents that the Kings general writs of Summons create none Lords or Peers of Parliament for life or Inheritance if they hold not by Barony which I shall evidence by these presidents in point To the Parliament of 49 H. 3. there were no less than 64 Abbots 36 Priors the Master of the Temple and 5. Deans of Cathedral Churches namely of York Exeter Salisbury Lincoln Bath and Wells summoned by general writs as the Bishops Earls Barons and other Nobles were yet this did not make themselves nor their Successors Barons or Peers of Parliament for neither of these Deans nor their successors were ever afterwards summoned to Parliament as they would and must have been had this writ made them or their successors Barons and Lords nor any of the Abbots or Priors but such only who held by Barony who were constantly summoned but those who then held not by Barony or Militare servitium if casually summoned to one Parliament were yet upon their complaints thereof omitted and discharged in the next as the Writs of Summons themselves attest and Mr. Selden manifests out of them Therefore the Writs did neither create them Barons for life much less their successors after them for then they should still have of right been summoned to succeeding Parliaments and ought not to have been discharged In the 18 of Ed. 2. A Writ of Summons was sent by the King Magistro Gilberto de Middleton Archidiacono Northampton Officiali Curiae Cantuariensis Magistro Roberto de Sancto Albano Decano de Arcubus London But no writ was ever directed to them afterwards but in this one Parliament only therefore it made them not Lords and Barons for life inheritance or succession The like is evident by the forecited presidents of the Abbots of St. James Leicester and other Priors So the Gardians of the Spiritualties of Bishops during the vacancy and their Vicars Generals during their absence beyond the Seas have been frequently summoned to Parliaments by writs But being summoned only as substitutes or in the right of the Bishops or Bishopricks it made them no Barons or Peers neither were they ever esteemed such heretofore or at this day as Mr. Selden informs us And as it was thus amongst Abbots Priors Deans and other Clergy-men that these writs made them not Barons for life nor yet in succession so by the selfsame Law and Reason they made no Laicks who held not by Barony such for life or inheritance Whence we find many such in the summons to Parliament of King Henry 3. Ed. 1 2 3. R. 2. H. 4 5 6. who were summoned once twice or thrice but never afterwards nor any of their name or posterity of which no other solid reason can be given but that these general writs of summons made them neither Barons for life nor inheritance no more than they did Abbots Priors or Clergymen For example I find Edmond Barstaff Robert de Crendon H. Huse Ader de Estlye Serton de Hansladorn and sundry others summoned by Writ to Parliament in 33 E. 1. Peter Corbet Andrew de Hamloe Henry Tregor Maurice de Buen Roger Banuent and some others in 13 E. 2. Simon Ward Henry Dandle William Blunt in 4 E. 3. Roger de Claudes Ralph de Bevil William de Kineston in 14 E. 3. Ralph Bulmer Thomas Bugworth in 22 E. 3. William de Ridehal in 27 E. 3. Robert de Colvil John de Kirton John de Wodhurst John Northwood John de Strivelin in the Parliament summons of 37. and one of them again of 38 E. 3. Henry Quarts in 6 H. 4. Henry Cuart in 7 H. 4. William Cheyney Chief Justice in 4. 6 H. 6. But neither of their persons nor any of their posterity were ever after summoned that I find to any other Parliaments as no doubt they would have been had those their writs of summons made them Lords and Barons In the Clause Roll of 5 E. 3. m. 12. dorso the King sent writs into Ireland to William de Burgh Earl of Ulster James de Botâ—ler Earl of Ormond William de Bremigham Knight and Walter de Burgh strictly enjoyning them with all speed to come over into England Nobiscum tractaturi vestrumque Consilium impensuri concerning his intended Voyage in person into Ireland and setting the peace and affairs therof and I read in the reign of King Henry 3. Edward the 1. 3. and other of our Kings that the King of Scots and his Nobles were oft summoned by Writs to our English Parliaments concerning the affairs of Scotland yet these writs made none of them Peers and Barons of our English Parliaments From all which I may safely conclude Sir Edward Cooks and others Opinions to be no Law but a clear mistake that a general writ of Summons doth or can create any who hold not by Barony Peers or Barons for life much less in fee or fee-tayl Therefore such may be afterwards elected Knights or Burgesses of Parliament and be Members of the Commons house and refuse to sit or serve in the Lords house upon summons without contempt or fine but no Baron or Peer of the Realm may be thus chosen or neglect his service in the Lords house Finally Mr. Cambden in his Britannia p. 120 122. Apologia p 11. and Mr. J. Selden in his Titles of Honour part 2. chap. 5. Sect. 31. p. 708. to 718. assert That as some Spiritual Barons who were conceived to be Barons by writ as well as by tenure though sometimes summoned to Parliament by writ were wholly omitted at length as not having of right Voice and Place with the rest because they held not by Barony So sundry of the Lesser Barons and Tenants in Capite holding only of the King as Vavasors by Knights service and not by an intire Barony were likewise excluded the Parliament and not summoned thereunto by King John Henry the 3. Edw. the 1. being not great and honourary Barons nor having estates sufficient to support that dignity and that as Mr. Selden conceites by some Law made not long before the Great Charter of King Iohn procured by MAJORES BARONES who foreseeing that their power and dignity might suffer much diminution if the new tenants in chief or Patentees of Escheated Baronies and the rest that were decayed should have equality with them and be indifferently Barons of the Kingdom every way as they were procured a Law in some of the Parliaments that preceded the Great Charter of King John by which themselves only should hereafter be properly stiled summoned as BARONS and the rest only Tenants in chief or Knights which Titles shold be given them as distinct names from Barons which could not but much lesen the dignity and honor of the rest
And if so then questionless such who hold not by an intire Barony and are not Majores Barones by Patent or Inheritance now cannot be created such by a meer general writ of summons neither can the King by his general writ create or make them such against this antient Law and usage ever since And the Earls Lords and Great honorary Barons who excluded all such from sitting in Parliament with them as Barons and their Peers then may much more exclude and refuse to admit such into their house or to sit with them if summoned now because their dignity honor power would suffer much diminution thereby and the King might by writ at any time call so many to their House as might overtop overâ—ote and alter their very Constitution as an House of Peers I shall close up this point of the Lords sole right to sit in Parliament with one or two memorable presidents In the 7. year of King Edward 2. as Walsingham stories in quindena Paschae per Regis brevia citatae sunt generaliter omnes Parliamentales personae pro Parliamento teuendo Londoniis Sed multis Proceribus praetendentes impedimenti causas nihil hâ—c vice factum suâ—t So Anno 1316. King Edward in the 9th year of his reign celebravit Concilium apud Clarindon sed Magnates noluerunt interesse Whereupon nothing was there effected The Lords presence being held then so necessary that by reason of the absence of divers of them upon some real or pretended impediments though all legally summoned by the Kings writs nothing was done or concluded by those who met who held themselves no compleat or legal Parliament without them Whereas in the Parliament of 5 E. 2. some of the Judges and Assistants departing from the Lords and divers Knights Citizens and Burgesses from the Commons house without license yet the Lords continuing all together and making Ordinances for regulating the Kings house and Revenues the Parliament still continued and these special writs were sent to recall the Judges and Lords Assistants quod redeant exinde et sine licentia nostra speciali durante Parliamento praedicto non recedatis Et hoc sicut indignationem nostram vitare volueritis nullo modo omittaris Teste Rege apud Haddely 12 Septemb. PER CONSILIUM And this general writ was sent to the Sheriff of Yorkeshire and all other Sheriffs of England to summon all the Knights Citizens and Burgesses in their several Counties to return thither or else to elect other fit persons in their places Praecipimus tibi firmiter injungentes quod illos Milites Cives Burgenses de Balliva tua quos nuper ad praesens Parliamentum nostrum apud London inchoatum de mandato nostro venire fecisti et qui ab eodem Parliamento certis de causis recesserunt quod redeant exinde c. vel alios ad hoc idoneos loco ipsorum SI AD HOC VACARE NON POSSUNT usque ad Westmonasterium ad dictum Parliamentum quod ibidem duximus continuandum c. proxime futur ad ultimum cum sufficienti potestate Comitatus tui Civitatum Burgorum praedictororum ad consentiendum hiis quae tunc ibidem contigerint ordinari c. Teste Rege apud London xi die Octobris This Parliament being thus continued Claus 5 E. 2. m. 25. Special license was granted to some LORDS to goe home who made Proxies to other Lords to supply their places by these words Deputamus in loco nostro in Parliamento and this in the Writ of Prorogation This I hope will suffice to convince all Levellers and Gainsayers of the LORDS undoubted antient Hereditary just Right and Title to sit vote in all ENGLISH PARLIAMENTS though not elected by the people SECTION II. Wherein the Lords House sole Right of Judicature in Parliament without the Commons is fully cleared by Presidents Histories Records in all ages and undeniable Reasons and that both in Criminal Civil Ecclesiastical Causes of all sorts as well in cases of Commoners and Clergymen as Temporal Peers persons of the highest degree proper for Parliament IT is the General confession resolution assertion both of Lawyers Law-books the Parliament and Statute of 31 H. 8. c. 10. and all who have written of our Parliaments That the Parliament of England is the antientest honourablest highest Court and Supremest Judicature in the Realm to whose Judicature all other Courts Persons Subjects of the Realm are subject accountable for all Injuries Oppressions Crimes Wrongs Corruptions Errors Abuses Grievances Misdemeanors Treasons Contempts Frauds false Judgments and matters of publike or privat concernment not properly triable remediable or punishable in other inferior Courts of Justice and that Court to whom all Appeals concerning Misproceedings Errors or Injustice in other Courts or places ought to be made and from whose Injustice and Sentence there is no appeal but only to another Parliament as in the case of General Councils as Divines assert there is no appeal but to another general Council in Ecclesiastical affairs concerning the Universal Church or matters of Faith This being an unquestionable Principle and Truth the sole Question will be in what House or Persons in Parliament this Supreme Judicatory or judicial power resides Whether in the King alonâ— or Lords alone or King and Lords jointly or in the House of Commons alone never made a question â—il now by Lilburn and Overton or in the King and House of Peers not separate from but joyntly with the Commons House And for my part I conceive it resides wholly and solely in the King and House of Lords not in the House of Commons which hath no part nor share therein singly considered in it self nor yet joyntly with the King and Lords but only in some special cases and proceedings as when and where the King and Lords voluntarily require their concurrence or where the judgement and proceedings in Parliament are by way of Bill or Act of Parliament or when a judgement passed or confirmed by Bill or Act to which the Commons consent was requisite is to be altered or reversed but in no cases else that I can find To make this ouâ— beyond contradiction it must be necessarily granted by all and cannot be gainsaid or disproved by any that this Supreme power of Judicature hath been vested in our Great Councils and Parliaments even from their beginning and original institution it being the antientest as well as highest and honourablest of all other Courts That it had this Soveraign Jurisdiction vested in and exercised by it both under our British Saxon Danish and Norman Kings I have elsewhere evidenced and shall anon make good by undeniable presidents Now the Great Parliamentary Councils under them consisted only of the King the Ecclesiastical and Temporal Lords Earls Barons Nobles without any Commons House or Knights of Shires Citizens or Burgesses elected by the people as I have already touched and manifested more fully in other Treatises yea
the most best Antiquaries and English Historians I have seen who Treat of our Parliaments except that Gross Impostor who composed that ridiculous Treatise stiled Modus tenendâ— Parliamentum when there was never any Parliament held in any age in England or Ireland in such manner as â—e there relates prescribes with Sir Edward Cook and some other injudicious Antiqâ—aries seduced by this pretended forged Antiquity have not presumed to derive the Antiquity of the Knights Citizens and Burgesses summons to and siâ—ting in our Parliaments higher than the Parliament held under Henry the 1. at Salisbury Anno Dom. 1116. the 16 year of his reign To which Polydor Virgil Hist Angl. An. 1116. Judge Dodridge and others in the Antiquity of the Parliamenâ—s of England p. 18 19 20 40 80 86 87. Holinshed in his Chronicle vol. 3. p. 38 39. John Speed in his History of Great Britain p. 438 439. referre their Original if not the beginning of Parliaments themselves But under these learned mens correction who produce no warrant from histories or records in that age for proof of what they affirme I dare confidently assert that there is nothing to be found in History or Record to warrant this their fancy but many direct evidences against it which I shall briefly clear being very pertinent to the present controversie and judicature of the Lords House 1. It is most clear that to this Parliamentary Council held at Salisbury Anno 16 H. 1. No Commons Knights Citizens elected by the people were called by this Kings Writs as some of these Authors with the Manuscript of Canterbury positively assert and others of them seem to incline unto but only the Lords spiritual and temporal of the Realm as Holinshed himself relates whom Speed stileth the Estates both Spiritual and Temporal This is evident by Eadmerus who then lived and thus records the proceedings of that convention under this King 13 Kal. Aprilis factus est Conventus Episcoporum Abbatum et Principum totius regni apud Serberiam cogente eos illuc sanctione Regis â—enrici Which Rog. de Hoved. thus seconds Comites et Barones totius Angliae apud Salisberiam convenerunt who as Mat. Paris and Mat. Westminster with them relate Jurarunt fidelitatem Willielmo filio suo Simeon Dunelmensis â—â—iles it Conventus Optimatum et Baronum totius Angliae wherein jussu Regis omnes Comites et Barones cum Clero totius Regni swore fealty to him and his Son as the Chronicle of Brompton also relates not any of our antient Historians making mention of any Commons Knights Burgesses but only of Bishops Abbots Earls Lords and Barons of the Realm there present at it In this Parliament after the Earls Barons and Great men had done homage to William the Kings Son and sworn allegiance to him the Cause and complaint between Ralph Archbishop of Canterbury and Thurstan elected Archbishop of York was there heard and debated which had been agitated between them a whole year before Thurstan being admonished by Ralph to make his subjection to the See of Canterbury and to receive his consecration from him after the ecclesiastical and usual manner Answered That he would willingly receive his consecration from him but he would by no means make that profession of subjection to the See of Canterbury which he exacted but only that which Pope Gregory and after him Pope Honorius the 6. had ordained who made this agreement between the two Archbishops of England Ut neuter alteri subjectionis professionem faceret nisi tantum ut qui prior ordinatus esset quamdiu viveret prior haberetur quod proprium est servorum Dei ut verahumilitate sibi invicem acclives sint nullus super alium primatus ambitionem exercere debet Sicut Dominus noster Verae humilitatis praedicator amator discipulos suos de hac re litigantes redarguens dixit eis Qui major est vestrum erit omnium minister Nullus siquidem post beatum Auguâ—â—inum â— qui non tam Archiepiscopus quam Apostolus Anglorum dicendus est Archiepiscoporum Cantuariensium primatum totius Angliae sibi vendicare praesumpsit usque ad Theodorum Archipraesulem cui propter singularem in Ecclesiastica Disciplina solertiam omnes Angliae Episcopi subjici consenserunt sicut Beda in Ecclesiastica Historia Angliae testatur Quamobrem Turstinus nullam aliam subjectionis professionem Cantuariensi Pontifici facere voluit nisi quam beatus Papa Gregorius instituiâ— Ralph on the other side pleaded the subjection of his predecessors made to his Predecessors Rex autem Henricus ubi advâ—rtit Turstinum in sua stare pervicatia aperte protestatus est illum aut morem antecessorum suorum tam in professione facienda quam in aliis dignitatis Ecclesiae Cantuariensis ex antiquo jure competentibus executurum aut Episcopatu Eboracensi cum benedictione funditus cariturum His auditis ille suo cordis consilio inpraemeditatus credens renunciavit Pontificatui spondens Regi Archiepiscopo se dum viveret illum non reclamaturum nec aliquam calumniam inde moturum qui cunque substitutus fuisset But Thurstan afterwards repenting of his rashness contrary to his agreement in Parliament going to the Pope against the Kings command to the Council at Rhemes was there consecrated Archbishop of York by Pope Calixtus himself contrary to his promise to the Kings agent and Canterburies who there publikely protested against his consecration without making any subjection to the See of Canterbury Whereupon the King prohibited Thurstan to return into England or any of his Dominions swearing that he should never return whiles he lived unless he would make his subjection to the See of Canterbury Which Oath he refused to violate at the Popes personal request to him though he then absolved him voluntarily from this Oath saying Quod dicit se quoniam Apostolicus est me à fide quam pollicitus sum absoluturum Si contra eandem fidem Thurstinum Eboraci recepero non videtur regiae honestati convenire hujusmodi absolutioni consentire Quis enim fidem suam cuivis polâ—câ—ntii amplius crederetur cum eam meo exemplo tam facile absolutione annihilari posse videret As in this famous Parliamentary Council of Salisbury so in all precedent and subsequent Great Councils and Conventions during the whole reign of king H. 1. the Prelates Earls Barons spiritual and temporal Lords were only summoned as Members not any Knights Citizens Burgesses or Commons elected by the people which I shall next make good In a Parliamentary Council in the 1. year of his reign Anno 1100. he was elected and crowned King of England abolished ill Laws confirmed King Edwards Laws and the Great Charter of Liberties under his Seal Communi Concilio Baronum regni Archiepiscoâ—is Episcopis Comitiâ—uâ— Proceribus Magnatibus et Optimatibus totius Regni Angliae there subscribing to his Charter then granted as witnesses See here p. 58
ut rex ipsis omnibus qui in eorum comitiva arma moverant literas patentes indemnitatis concederet ne pro transgressionibus transactis vel praesentibus a rege seu quovis alio futuris temâ—oribus punireâ—ur Ad haec dominus rex respondit quod Hugo le Spencer pater in suo negotio mare transierat Hugo junior in mari ad custodiendum quinque Portus prout ex officio renebatur qui de jure vel consuetudine exulare non debent ante responsa data per eosdem Adâ—câ— praeâ—ereâ— quod eorum petitio juris rationis fundamento carebat eo maxime quod dicti Hugo senior Hugo junior parati semper fuerant omnibus de se conquerentibus in forma juris respondere si probare possent eos in aliquo statuta terrae laesisse parati semper suerant legibus regni parere Postremo cum juramento addidit quod noluerit sacramentum violare ad quod astrictus fuerat in Coronatione sua concedendo literas pacis et indulgentiae tam notorie delinquentibus in suae personae contemptum et totius regni perturbationem et majestatis regiae laesionem Hiis auditis Proceres acti in â—uâ—iam confesâ—im ad arma rosiliunt milites quidam super armatura cotiâ—cas induerunt vocatas quarteloys Armigeri vero indumenta bendas habuerunâ— quibus indumentis expost induti tracti sunt suspensi plurimide procerum Comitiva Cum fastu igitur pompa nimia Barones Londonias adierunt hospitatique in suburbia civitatis manebant pacifice donec licentiam ingredi civitatem obtinuissent obtento a rege civitatis ingressu Magnates sicut prius in petitione sua fortiter perstiterunt Tandem interveniente regina praefatis episcopis laudabiliter mediantibus rex inductus est propter werrae periculum evitandum ut condescenderet votis petitionibus Procerum praedictorum Edictoque super hiis per comitem Herefordiae in aula Westmonasterii publicato Hugo senior in exilium actus est Sed Hugo junior in diversis locis latitans in Anglia in mari permansit The Clause Roll of 14 E. 2. m. 17. Schedula records the proceedings with this addition that King Edward the 2. having summoned the Lords to come to a Parliament with the rest of the Council at Glocester Humfry de Boun Roger de Mortimer and their confederates refused to come upon the Summons for fear of Hugh Spencer who was made Chamberlain in pleno Parliamento 12 E. 2. at York desiring that he might be committed and kept in safe custody till the Parliament for they weâ—e unwilling to come to him so long as he was with the King The King said he much wondred at this their carriage in regard Spencer was never questioned in any other Parliament since he was made Chamberlain for any misdemeanour ignorare non debetis nec potestis quod mandata nostra omnibus singulis ad Nos ad hujusmodi mandata nostra convenientibus protectâ—o desensio sunt debent secundum legem et consuetudinem Regni nostri As for removing Spencer from him which they desired he said it were unjust and of ill example aliis Ministris nostris sâ—ipsum amoveremas à Nobis totaliter sine causâ— Praefâ— uâ— vero Hugonem sive quemaâ—is alium Custodiae sine causa committere non possumus nec debemus cum hoc esset conira tenorem Magnae Chartae de libertatibus Angliae et contra Communem Legem Regni nostri ac contra Ordinationes made by himself and the Lords in Parliament Idem enim Hugo se protulit plane ac publice coram Nobis ad respondendum in Parliamento nostro alibi prout debuit querelis nostri siâ—gulorum aâ— ipso conqueretium volentium ad standum inde recto c. And thereupon he commands them to come and treat cum caeteris de Concilio at Oxford whereas it appears by the Dorse of this Roll he had formerly summoned them and the rest of the Council to Glocester whether these Earls refused to come Claus 15 E. 2. dorso 32. The whole proceedings against the Spencers in Parliamen are at large recorded but cancelled by order of the Parliament at York They were sent to every Court to be inrolled and the writ recites thar their judgement was per pares in praesentia Regis Soon after the same year the King summoned a Parliament at York on the 3. of September where this judgement against the Spencers was questioned as erronious and being referred to the consideration of the Provincial Council of Canterbury they conceived it to be erronice factum because the Spiritual Lords never assented to it neither could they doe it because it was Jndicium sanguinis for if they submitted not to the exile they were to be proceeded against as Enemies to the King and Realm After which the King and some of the Lords had the sentence read to them and they said It was erroniâ—ous The Earls of Richmond Pembroke and Arundel said They gave their voyces for fear of the other Noble mens power and the Judges said Consideratio praedicta fuit contra Legem consuetudinom regni The King writes down all this and then sends to some of the Bishops that were absent from the Council to know their minds 4 Januarii who concurring in judgement with the rest thereupon the Process Judgement and Act against the Spencers was nulled and made void before the King Lords and Commons who were consenting to it before 1. Because they were not called to it to make their defence 2ly Because the Lords Spiritual who were Peers assented not to it 3ly Because against MAGNA CHARTA the franchises of England Nullus liber homo utlagetur c. 4ly Because the Faults were not sufficiently proved 5ly Because the Lords in the Kings absence of their proper authority usurping to themselves royal power had given the judgement of his royal assent with the assent of the Lorâ—s and Commons without his privity and against his will The judgement and process of this repeal and nulling their sentence were sent by Writ into every County to proclaim and to null and cancel the first judgement A little before which Parliament Thomas Earl of Lancaster and sundry other Lords Knights and Gentlemen for adhering to him and levying war against the king were arraigned impeached before the Lords and commanded to be hanged drawn quartered and beheaded Comitum et Baronum Consilio as Walsingham relates without the Commons peculiar assent and accordingly executed Anno 1326. Hugh Spencer the younger notwithstanding the repeal of his exile being taken by the Kings forces was brought to Hereford and there arraigned publiquely before William Trussel a Judge His inditement is at large recorded in the Chronicle of Leicester and in Henry de Knyghton de Eventibus Angliae l. 3. c. 15. col 2547. c. beginning thus Hugo de Dispencere En Parlement nostre
Seignour le Roy que ore est tenue a Westminstre lanquinzisme per examinent dez Praelates Contes Barones et tote la commune de Realm fuist notoriement trove que vostre piere vous Hugh fuâ—stez agardez TRAYTOURS enmys del Realm pur quel par assent commandment nostre Seigniour le Roy vostre Piere vous Hugh fuistez exules del Realm sanz james revenir si ceo ne fuist par lassent commmandment nostre Seignious le Roy ceo en playne Parlement duement al ceo summounz And for his returning into England against this Act and his manifold murders oppressions and misdemeanors since there recited at large he was condemned to be hanged drawn bowelled quartered and beheaded which was executed accordingly December 8. and his head fixed on a Poll and set upon London bridge The Repeal of the Spencers exile was not long after repealed and the Act for their exile re-confirmed in the Parliament of 1 E. 3. ch 1 2. in the Statutes at large which recites That they were exiled disinherited and banished out of the Realm by the Commons assent and award of the Peers and Commons of the Realm and by the assent of King Edward as Traytors and Enemies of the King and of his Realm And that he by the Common Counsel of the Prelates Earls Barons and other Great men and of the Commonalty of the Realm in his Parliament holden at Westminster did ordain and establish That the repeal of the said Exile which was made by Duress and force should be adnulled fâ—r evermore and the same exile made by the award of THE PEERS AND COMMONS BY THE KINGS ASSENT as aforesaid shall stand in its strength in all points after the tenour of every Article therein contained But this Act of repeal by the like power and assent was repealed as erronious and the heir of the Spencers restored to blood and Lands by the Parliament of 21 R. 2. Rot. Parl. u. 35. to 57. And that whole Parliament again repealed and nulled by 1 H. 4. c. 3. Cooks 4 Instit p. 25. This was the issue of this very first Attainder wherein the Commons concurred with the Lords being carried by force and power on all hands in those turbulent times In the Parliament of 11 R. 2. ch 1 2 3 4 5 6 7. in the Statutes at large Alexander Archbishop of York Robert de Vere Duke of Ireland Michael de la Pale Earl of Suffolk Robert Tresylien chief Justice R. Belknap with sundry other Judges Lawyers Knights Gentlemen Clergymen and other Commons and Prelates were impeached by the Duke of Glocester and other Lords Appellants of High Treason in 36 Articles thereupon attainted condemned judgement of death banishment forfeiture of their lands and estates given against them in Parliament by the Lords without the Commons After which the Lords exhibited a Petition to the King for the confirmation of the said Attainders and forfeiture Whereupon the King considering the matâ—er of the said Petition to be true at the request of the said Commons of the assent of the Prelates Dukes Earls Barons and all others of this present Parliament granted the request of the said COMMONS in all points after the form of the said Petition And moreover of the assent aforesaid passed sundry Acts touching their Attainders Judgements Exiles and forfeitures which all may peruse at leisure in the Statutes at large In the Parliament of 21 R. 2. upon the Petition of the Commons by the like assent c. 2. to 12. in the Statutes at large these Attainders Judgemens forfeitures and the whole Parliament of 11 R. 2. were repealed as erronious and nulled Yet after by the Parliam of 1 H. 4. c. 3. the Parl. of 21 R. 2. is nulled and that of 11 R. 2. revived and confirmed with all the attainders and Judgements therein given In the Parliament of 9 H. 6. c. 8. Owen Glendor formerly endited and attainted of high Treason for his grand insurrections and rebellions by the assent of the Lords spiritual and temporal and of the Kingâ— at the special request of the Commons was by special Act declared a Traytor and all manner of Indictments Inquisitions Processes Records Judgements Ordinances Statutes made against him authorized established for Law by assent of the Lords and Commons in Parliament In the Parliament of 29 H. 6. c. 1. The King by the advice of the Lords spiritual temporal and at the request of his Commons by a special Act attainted John Cade of several High Treasons for traytorously imanâ—ging the Kings death the destruction and subversion of this Realm in gathering and levying great numbers of the Kings people and them exciting to make insurrection against the King his regalty crown and dignity and to make and levy war falsly and trayterously against the King for which they confiscated all his Lands Tenements rents and possessions to the king corrupt and disable his blood for ever and enact him to be called a false Traytor within the Realm for ever And in 31 H. 6. c. 1. with the advise and assent of the Lords and at the request of the Commons it is ordained established that the said John Cade shall be reputed had named and declared a false Traytor to the king and all indictments and proceedings had and made under the power of his Tyranny were clearly repealed and adnulled for ever and to be of no effect but void in Law and put in oblivion and destroyed for ever as purposed against God and Conscience and the Kings royal estate and preheminence and also dishonourable and unreasonable In the Parliament held Anno 38 H. 6. rot Parl. n. 5. to 26. Richard Duke of York with sundry other Lords and Commons were attainted of High Treason by Bill for conspiring and levying war againâ—t the King And in the Parliament of 1 E. 4. rot Parl. n. 12 17. to 37 King Henry the 4 H. the 6 Queen Margaret Edward Prince of Wales Henry Duke of Somerset the Earl of Devonshire with sundry other Knights Esquires and Gentlemen Priests and Yeomen were attainted of High Treason by Bills for levying war against king Edward the 4. In the Parliament of 4 E. 4. rot Parl. n. 2. to 39. the Duke of Somerset Henry Beauford Sir Ralph Piercie with sundry other Knights Esquires and Gentlemen were attainted of High Treason by Bill for levying war against the king most of which attainders in the Parliaments of 12 E. 4. rot Parl. n. 15. to 36.13 E. 4. n. 45.14 E. 4. n 45.27 28 29 31 32.17 E. 4. n. 19 20 21 22. E. 4. n. 23 were repealed by Bills and the parties or their heirs restored to blood and Lands In the Parliaments of 14 E. 4. rot Parl. n. 34 35 36 37. Sir Richard and Sir Robert Wells John Vere Earl of Oxford Sir Thomas Vere with sundry more Knights and Gentlemen were attainted by Bill of High Treason for Levying war against the king and some of
suis consentaneis rimens sibi post praedicti Comitis purgationem gravissimas de se suscitati querelas US QUE AD ALIUD PARLIAMENTUM praefatum diem procuravit prorogandum Unde tumultu ad tempus sedato Rex proprium adivit Palatium cum gaudio Articuli vero praetactarum culparum cum suis fabricatoribus plures sunt ultra modum transgressibiles si veri essent Sed quia incredibiles sunt nulla fulciuntur veritate ne mendaciorum scriptor dicerer aâ—t fabricator eos huic paginae non arbitror annotari Jmo qui eos siâ—ienter audire desiderat a mendacâ— mondaâ—iâ— exâ—auriet me in noc relinquens alium relatorem exquirat Anno 1261. Prince Edward returning out of France brought William de Valentia the Kings Brother-in-law with him lately banished out of the land who could then scarce obtain any admission into it but upon this condition Ut praestito in ingressu sacramento BARONUM PROVISIONI IN OMNIBUS OBEDIRET singulis contra eum dâ—posiâ—is quaerelis et deponendis si neceâ—se fuerit responderet Eadwardus vero super vanis Regis consiliis consiliariis edoctus eisdem valde iratus sponte se patris absentavit obtutibus fideliterut perjuraverat assensit Baronibus Inquisitis itaque diligenter praedictae contentionis fautoribus et cognitis unanimiter omnes cum Eadwardo conjurarunt quod nunquam regi consentirent in uno donec quoldam non nominandos a suo amoveret consilio Addentes quod per talium pacis perturbatorum suggestiones Rex saepe decipitur in praetacta papali absolutione juramenti sui to observe the provisions of the Barons made at Oxford provisio Regi regno salutaris infirmatur Unde revelato eorum secreto nunquam Rex talium consilio intermediante suo poterit BARONAGIO prout decet consentiâ— Comâ—â—es antem Gloverniae et Leicestriae pace sunt tunc firmissima confaederati simul cum Eadwardo aliis contestantes quod aut praedictorum perturbatocum a rege removerent consorrium aut guerâ—a viâ—iniore suscitanda alterutros se darent in interitum In pursuance whereof the Barons continued in arms so long till they forced the Kings ill Counsellors from him constrained him to reconfirm and assent to their provisions made at Oxford to banish all strangers out of the Realm and to put all his Castles into their hands Anno 1264. Richard King of Romans Prince Edward the Kings eldest Son caterique BARONES OMNES ET NOBILES praedicto regi Angliae constanter sincerae fidei devotionis operibus adhaerentes in their memorable Letter and answer immediately before the battle of Lewes Simoni de Monte forti Gilberto de Clara caeterisque universis singulis perfidiae suae complicibus who accused them of giving neither good nor faithfull Counsel to the King in their Letter then sent to them write thus in order to a legal trial in the Kings Court of Parliament by their Peers De hoc autem quod falso nobis imponitis quod nec fidâ—le nec bonum consilium regi Domino vestro damus nequaquam verum dicitis Et si vos domine Simon de Monte forti vel Gileberte de Clara velitis hoc idem IN CURIA DOMINI REGIS ASSERERE parati sumus securum veniendi ad dictam CURIAM procurare conductum nostrae super hoc innocentiae veritatem vestrum sicut PERFIDORUM PRODITORVâ—M mendacium declarare per ALIOS misprinted in some Copies alium NOBILITATE ET GENERE VOBIS PARES not parem relating to that of Magna Charta c. 29. Per legale judicium PARIUM SUORUM by which Peers only are legally triable In the year of our Lord 1265 being the 49 year of Henry the 3 his reign the Earl of Leicester Simon de Montefort and sundry other of the Barons being slain and the rest of them totally routed in the Battel of Evesham by Prince Edward thereupon the King being rescued out of their hands and restored to his royal authority summoned a Parliament at Winchester on the Nativity of the blessed Virgin In which Parliament REX ET REGNI MAGNATES ORDINARVNT as Mat. Westminster relates quod diâ—iores Civitatis Londinensis in carcerom truderentur quod Cives Civitas Londinensis Nota suis antiquis Privilegiis libertatibus privaretur OB SUAM REBELLIONEM quod stipites cathenas quibus Civitas fuerat roborata de medio tollerentur PRO EO QUOD Simoni de Montiforti Comiti Leicestriae IN REGIS CONTEMPTUM ET ETIAM DAMNUM REGNI FORTITER ADHAESERANT Capitunei etiam factionis contra Regem juxta voluntatem ejus plâ—ctendi carcere manciparentur Quod totum factum est Nam potentiores Civitatis apud Castrum Windesoram Carceri fuerunt mancipaâ—i qui post modo poena pecuniaria ad summam non modicam mulctabantur Libertas fuit civibus interdicta Turris London per stipites Cathenas Civitatis fortiâ—r facta Post hoâ— aprid Westmonasterium in festo Translatioâ—is Sancti Edwardi there was another Parliament held at London summoned by this Writ yet extant on Record Henricus Dei gratia Rex Angliae c. Cum post gravia turbationum discrâ—minadudum habita in regno nostro Carissimus filius Edwardus primogenitus noster pro pace in regno nostro assecurenda et firmanda obses traditus extitisset et jam sedata Benedictus Deus turbatione praedicta super deliberatione ejusdem salubriter providenda et plena securiâ—aâ—e et tranquillitate pacis ad honoâ—em Dei utilitatem totius regni nostri firmanda et totaliter complenda ac super quibusdam aliis regni nostri negoâ—â—is quae sine Consilio vestro et aliorum Praelatorum et Magnatum nostrorum nolumus expediri cuâ— eisdem traâ—tatum nos habere oportet Vobis mandamuâ— rogantes in fide et diâ—ectione quibuâ— Nobis teneminiâ— quod omni occasione postposita negotiis aliis praetertermissiâ— ad Nos Londoniis c. Nobiscum et cum Praedictis Praelatis et Magnatibus nosâ—ris quos ibid. vâ—c râ—cimus supeâ— praemiâ—is istis tracâ—a uri et Consil impensuri Et hoc sicut Nos et honorem nostrum ac veâ—â—rum necnon et communem regni nostri tranquillitatem diligitis nullatenus omittatis The Teste of this Writ to the Bishops bears date of Winchester where the former Parliament was held Decemb. 14. the Writs to the temporal Lords Abbots and Peers bâ—ar date at Woodstock the 24 of this Month there being no lesse than 64 Abbots 36 Priors the Master of the Temple and 4 Dears of Cathedral Churches summoned thereunto besides Knights and Burgesses now first summoned to that Parliament to settle peace most of them being VOLUNTARIE SUMMONITI and not bound of right to come not holding of the King by Barony In this Parl. by judgement of the King and Lords SENTENTIA EXHAEREDATIONIS IN REGIS ADVERSARIOS FEREBATUR '
Clergy being thus put out of the Kings Protection and thereby disabled to sue or sit in Parliament were secluded the Parliament house the King holding the Parliament with the Temporal Lords and Commons alone and making valid good Acts and Ordinances therein in this case without the Clergy as Bishop Jewel M. Crompton Dr. Bilson and others affirm which Dr. Standish averred he might lawfully doe before the Kings Council and a Committee of Lords and Commons in the Parliament of 7 H. 8. Keilwayes Reports f. 184. b. Sir Edward Cooke being of the selfâ—ame opinion in his 4 Institutes p. 25. citing other Presidents of this kind to prove that Acts may be made without the Bishops as 15 E. 2. Exilium Hugonis le Dispenser 3 Rich. 2. c. 3.7 Rich. 2. c. 12.11 R. 2. n. 9 10 11. 21 R. 2. n. 9 10. 1 H. 5. c. 7.6 H. 6. n. 27. Peter de Gaverston a deâ— oiâ— lascivious person for his misdemeanours and corrupting Prince Edward with whom he was educated from his infancy in the year 1306 in a Parliament then held by King Edw. the 1. assensu Communi Procerum fuerat exilio penpetuo condemnâ—tus This King was no sooner deaâ— and the Crown descending to King Edward the 2. but he presently recalled Gaverston from his exile against the will of the Lords made him Earl of Cornwall and gave him the Isle of Man An. 1307. the very first year of his reign He being more high in the Kings favoâ—r more glorious in his apparel and insolent in his behaviour than any other thereupon Anno 1309. Regni Proceres et Nobiliores videnâ—es se contemni Petrum de Gaveâ—on cunctis anteferri accessâ—runt ad Regem humiliter rogantes ut Baronum suorum vellet consiliis tractare Regni negotia quibus a pericuâ— sibi imminentibus non solum cautior sed tâ—tior esse possit Quorum votis facie tenus Rex annuitâ— Parliamentum Londini instituâ—t fiori ad quod omnes qui interesse debebant mark it venire mandavit The Parliament there assembling Anno 1310. Decreto Parliamenti ad Baronum instantiam Petrus deâ— Gaverâ—on in Hyberniam Exilio relegatur No sooner was the Parliament ended but the King caused special writs to be written and sealed in his own presence for recalling Gaverston from his exile and restoring him to his Lands which writs he took into his own hands for a time and then sent them to the Sheriffs with special command to see them duly executed under grievous penalties In these Writs he recites that Mounsieur Piers de Gaverston Earl of Cornwal was of late exiled out of ouâ— Realm against the Laws and Vsages of the said Realm which he was bound to keep and maintain by the Oath he took at his Coronation For which cause he did out of that common right and justice which was due to all his Subjects recall and restore him without the Lords against their wills as the writs in the Clause Rolls inform us Thomas of Walsingham thus relates the manner of it and ill consequence thereof to Gaverstons ruine in these words Soluto Parliamento cunctis gaudenter ad sua disced nâ—ibus rex remansit tristis cogitans disquirens cum privato suo concilio qualiter posset ipsum ab exilio revocare Suggestumque fuit 〈◊〉 qâ—od si sororeiâ— Comitis Gloverniae qui pro â—unc 〈◊〉 jâ—venis â—oâ—i 〈◊〉 sub tuâ— Regis praeâ—aâ—o Pet◠〈…〉 coâ—ugeâ— posset ipsum intrepide revocare 〈◊〉 hiâ—s audicis cum omni festinatione missis nuneilâ—â—â—cersivit eâ—m inter ipsum sororem Comicis fecit celebrati nuptiae licet multum Gomiâ—i displicerent Eâ—iâ—de Petrus superbiens plus solito regni nobiles vilipendit subsannabat Proceres mediocresque despexir Et quia Rex permiserat sibi facultaâ—em pene facienâ—i quâ—e vellet quantum ad ea quae respiciebant personam regiam caepit sicut prius thesaurum regis colligere negotiatoribus ultra mariniâ— accommo lare non ad usus quidem regios sed suos proprios Qui in tantum expilavit regem ut non haberet unde solveret expensas solitas domus suae Regina vero tantum rebus necessariis arctabâ—tur ut regi Franciae patri suo lachrymabiliter quereretur honore debito se privatam Barones igitur considerantes quod eorum tollerantia Petro malignandi praestabat auâ—atiam domino regi denunciaverunt assensu communi ut vel dictum Petrum a sua propelleret comitiva articulosque provisos effectui manciparet vel ipsâ— certe in eum tanquam perjurum insurgerent Durus videbatur hic sermo regi quia Petro carere nescivit sed plus periculi cernebat emergere si petitionibus Proceâ—um non obâ—emperaret Petrus igitur abjurat regnum regis plus â—ermissione quam beneplacito addita a Baronibus conditions quod si de caetero posset in veniri in Anglia vel aliqua terra regi subiecta caperetur et velut hostis publicâ—s damnaretur Igitur sub praemura conditione daâ—o sibi conductu Angliae regnum Iâ—gons desernit Franciam est ingressus Quo adito Rex Francorum jussit suis ut eum caperent si quo modo possent diligenteâ— cusâ—odirent nâ— direâ— in Angliam Proceres sicut prius turbaret filtâ—m Petrus de â—is praemonitus fugit in Flandâ—iam ibi quaeâ—iturus requiem nec invenit Tandem cum suis consortibus aâ—ienigenis redivit in Angliam de amicitra confisus Comitis Gloverniae cujus sororem duxerat in uxorem Parum ante festum natalis domini regis se presentavit obâ—utibus qui prae gaudio sui adventus juramenta pacta promissa negligens tanquam coeleste munus hilariter suscepit eum secum detinuit cum familia sua tota Anno 1311. post natale rumore vulgato de Petri reversione regni Magnates plebei conturbati sunt Qui necessitate ducti elegerunt sibi Thomam de Lancastria in ducem et defensorem ut periculis consulerent malis futuris Nobiliores vero regni de communis deâ—reti sententia miserunt honorabiles domino regi nuncios exorantes ut vel dictum Petrum eis traderet vel ut ordinatum fuerat ipsum regnum evacuare juberet Rex vero sinistro ductus consilio Baronum supplicationes parvipendens ab Eboraco recessit ad Novum Castrum Magnates proinde sub omni celeritate ad Novum Castrum iter arripuere Quod cum Rex audisset quasi proscriptus aut exul fugit cum dicto Petro Tynemutham et inde Scardeburgiam ubi habebatur castrum regale ubi praecepit Castellanis ut custodiam Petri susciperent castellum victualibus instaurarent rege se alias transferente nec opem ferre valente quin caperetur reduceretur usque ad villam de Dadington Ubi Comes Warwici Guido de bello campo fecit eum decollari tanquam legum regni subversorem publicum proditorem
personâ— that would complain against him but that the Commons would not do but prayed he might answer their charge in general whereupon he answered every of the Charges against him and that very fully in open Parliament before the LORDS Yet notwithstanding the Bishops and Lords gave Iudgement against him in full Parliament that for his ill Counsel and Government against the profit of the King and Realm and namely for divers Chevisances to the Kings loss for procuring grants to the destruction of the Staple and Town of Calice and for divers impositions laid upon wools he should be committed to prison under the custody of the Marshal and make fine and ransom at the Kings pleasure Whereupon the Commons further required That he might lose all his Offices and be no longer of the Kings Council which the King granted After which this Lord found certain Lords and others of quality whose names are mentioned in a Schedule annexed to the Parliament roll to be his Mainpernors for the forth-comming of his body during the Parliament Upon which the Marshal offered him to be at large In the same Parliament 50 E. 3. rot Parl. n. 34. John Lord Nevil was accused that during the time he was of the Kings privy Council he bought certain debts due by the King to the Lady Ravensham and Simon Love a Merchant at under values and for receiving of the King more wages and for a longer time than was due for one hundred Souldiers in Britain Upon which he confessed he received 95 l. of the Lady for the obtaining of her debt only our of her meer good will which was not disproved The Charge touching Love he wholly denied Love thereupon being brought into the Parliament before the Lords wholly excuseth the Lord Nevil But because Love the day before had confessed the contrary unto two of the Knights of the Parliament he was committed to Prison by the LORDS To the receiving of Wages he fully cleared himself Notwithstanding the LORDS GAVE JUDGEMENT of imprisonment and of lâ—sâ— of Lands Goods and Offices against him and that he should make restituâ— of the 95 l. to the Ladies Executors These Judgement◠〈◊〉 the Commons importunity were so unjust that in the very next Parliament of 51 E. 3. rot Parl. n. 75. upon the prayer of certain Bishops Lords and the Commons themselves the Lord Latymer by the Kings grant and royal assent and the Authority of the Lords was restored to his Offices and Privy Counsellorship whereof he was deprived by them this Parliament upon untrue Suggestions Such partiality and injustice is there many times even in Parliaments themselves out of malice faction or affection In the Parliament of 7 R. 2. holden at Westminster the Monday next before the feast of All Saints rot Parl. n. 13.15 to 24. Ralph Nevil the martial Bishop of Norwich was accused in Parliament for not serving the King in his wars in Flanders for so long a time and with so many men and with a sufficient General as he promised whereby the Voyage was lost to the Kings dishonour and damage and for selling the Castle of Gravelin to the French for money which the Chancellor in open Parliament declared against him The Bishop answered thereunto in person albeit in this case he said he might have Counsel with this Protestation that he might at all times avoyd or amend his answer To which answer of his the Chancellor replied In conclusion upon debate THE KING AND LORDS resolved his answer to be no sufficient excuse of what was charged against him Whereupon the Chancellor by ASSENT OF THE LORDS concluded That although the King might pass on the Bishop as a Temporal Lord by reason he took upon him to serve him as a Souldier and had the Sword carried before him contrary to his profession yet for that time in regard he was a Bishop the King would spare to lay hands on or imprison his person as he might doe And therefore they ADJUDGED him to make fine and ransom to the King at his pleasure whereunto he should be compelled by the seisure of his temporalties And it was commanded that from thence the Sword should no more be carried before him In the same Parliament held this year about the feast of St. Martin in quo prout jam a multis consuevit temporibus nihil dignum memoria fuit actum praeter illud quod sedulo actitabatur as now in our age extortio videlicet pecuniae de clero et communi plebe ad sustentationem militibus werrae regalis Nondum Parliamentum finitum fuerat cum nova de partibus borealibus sunt allata de captione Castelli de Berwico per Scotos cujus custodiam Comes Northumbriae domibus Henricus Percey avito jure possedit Scoti namque mediante pecunia de quodam qui secundarie castri custodiam tunc habebat introitus castelli dolosenacti sunt Factum est ergo Duce procurante Johanne ut dicitur ut pro perditione dicti Castelli regalis Comeâ— Iudicium qui aderani Optimatum et regis sententiam daâ—ationis exciperet in eum publice promulgatam Cujus executionis vindicta per regem postea cito relaxâ—ta fuit quamvis id Duci ut dicitur displiceret Acta sunt haec 14 die Decembris in eodem Parliamento non obstante quod idem Comes ad dictum Parliamentum vocatâ—s fuerat per breve regium et ad custodiam suae patriae morari maluisset Haec ideirâ—o causa inter ipsum Ducem er Comitem postea irae et odii â—omitem ministravit At the Parliament held at Salisbury an Irish Frier Carmelite delivered a Schedule to the King conteining divers treacherous plots and Treasons against him by the Duke of Lancaster that he had resolved sodainly to kill oppress the King and seise upon the Kingdom setting down the time place and all other circumstances taking his Oath upon the Sacrament of Christs body that every word contained in that Schedule was true advising the King not to believe the Dukes excuses nor to deferr his judgement lest he should raise forces against him to effect his design or be deceitfully reconciled to him The King hereupon being young NON DOMINOS NON PARES REGNI super tantis negotiis ut disecrâ—erant qui◠〈…〉 coâ—sulait but two Câ—eras of his Chappel his accustomed Counsellors whiles the King and they were privately debating the business the Duke came in unto them whom the King beholding with a stern countenance and not receiving him with that honour as formerly he suspecting the King conceived something in his mind against him withdrew himself But by the Chaplains advice he was called in again and the Schedule delivered him to read Which having read he said with a great sign to the King Heu Domine mi cur fidem datis talibus dela toribus Cur de mea persona talia opinamini Nonne sum aâ—unculus vester Nonne tutor extiti Nonne post vos principalis
committed to the Tower of London The 7 day of February the Commons by William Trussel their Speaker brought up and presented to the King and Lords in the Lords House a Bill against the said Duke containing an impeachment of several High Treasons committed by him against the King requiring of the Lords all their Articles therein to be enacted with prosecution therein The 9. of March they exhibited new articles of complaint against the Duke comprising sundry misdemeanors against the king and other persons which they require might be enrolled and that the Duke might answer to them The 9. of March the Duke was brought by the kings writ from the Tower into the Parliament Chamber before the King and Lords where the Articles were rehearsed to him who desired Copies of them which was granted And he for more ready answer was committed to certain Esquires to be kept in the Tower within the kings palace The 14 of March the Duke appeared before the K. Lords where on his knees he denied as untrue the 8 Articles of Treason and the same offered to prove as the King shall appoint The Chief Justice thereupon by the kings command asked this Question of the Lords what advise they would give the King what is to do further in this matter which advise was deferred till Monday then next following whereon nothing was done in that matter On Tuesday the 17 of March the king sent for all the Lords Spiritual and Temporal then being in Town being 24 in all into his Inner Chamber within his Palace of Westminster where when they were all assembled he then sent for the Duke thither who coming into the Kings presence kneeled down and continued kneeling till the Chancellor of England had delivered the kings command to him and demanded of him what he said to the Commons Articles not having put himself upon his Peerage Whereupon the Duke denied all the Articles touching the kings Person and state of the Realm as false and scandalous And so not departing from his said Answers submitted himself to the kings Rule and Governance without putting himself upon his Peerage Where thus the Chancellor told him That as touching the great and horrible crimes contained in the first Bill the king holdeth him neither declared nor charged And as touching the second Bill containing misprisions which are not criminal the king by force of his submission by his own advice and not reporting him to the advice of the Lords nor by way of judgement for he is not in place of judgement putteth you to his Rule and Governance that before the first of May next coming he should absent himself out of the kingdom of England and all other his Dominions in France or elsewhere and that he nor no man for him should shew or wait any malice nor hate to any person of what degree soever of the Commons in the Parliament in no manner of wise for any thing done to him in this Parliament or elsewhere And forthwith Viscount Beaumont in behalf of the said LORDS both spiritual and Temporal and by their advice assent and desire said and declared to the Kings Highness That this that so was decreed and done by his Excellency concerning the person of the said Duke proceeded not by their advice and Counsels but was done by the Kings own demeanoir and rule Wherefore they besought the King that this their saying might be enacted in the Parliament Roll for their more declaration hereafter with this protestation that it should not be nor turn in prejudice nor derogation of them their heirs ne of their successors in time coming but that they may have and enjoy their liberty as they or any of their Ancestors and Predecessors had and enjoyed before this time This is the sum of this large Record which makes nothing to the purpose for which Sir Edward Cook cites it in his 4 Institutes p. 25. That it is ERROR when both Houses joyn not in the Judgement For first here is nothing but an impeachment only by the Commons of a Peer who ought to be tryed judged only by his Peers not by Commoners Secondly there was no judgement given in Parliament in this case but only a private Award made by the King out of the Parliament House in his own Chamber in presence of the Lords Thirdly the Lords entred a special protestation against it as not made by their advice or consent Fourthly they enter a special claim in the Parliament Roll for the preservation of their Right and Freedom of Peerage for hereafter both of being tried and judged only by their Peers in Parliament and so an express resolution that the Peers in Parliament are and ought to be Judges especially of Peers not the Commons These Records of these cited at large lest Sir Edward Cooks brief quotation and mis-recital of them should deceive the credulous or ignorant Readers In the Parliament of 31 H. 6. rot Parl. n. 28. Thomas Earl of Devonshire was accused of Treason tried for and acquitted thereof by his Peers before Humfrey Duke of Buckingham Steward of England for the time being And for that the Duke of York thought the loyalty of the said Earl to be touched thereupon the said Earl protesting his Loyalty referred himself to further Trial as a Knight should doe upon which declaration THE LORDS in Parliament acquitted him as a loyal Subject Edward Duke of York with the Earls of March Warwick Salisbury Rutland John Lord Clinton and others were impeached and attainted by Judgement of the Lords in Parliament of High Treason for raising forces and levying war against King Henry the 6. and afterwards attainted by Bill in the Parliament of 38 H. 6. n. 7. to 26. In the Paâ—liamenr of 1 E. 4. n. 17. to 71. The Duke of Exeter Viscount Beamont the Earls of Pembroke Wilts and Devonshire the Lords Nevil Roos Gray Dacre Hungerford and others were first attainted and condemned of High Treason by THE LORDS and after by Bill for levying warr against King Edward the fourth The Duke of Somerset and others in the Parliament of 4 E. 4. n. 28. to 39. and John Vere Earl of Oxford with others in the Parliament of 14 E. 4. n. 34. to 41. were in the same manner for the same offence attainted of High Treason and their Lands forfeited To pretermit all other Attainders of this Nature in cases of High Treason in the reigns of Henry the 8. Edward the 6. Queen Mary Queen Elizabeth and King James both in our English and Irish Parliaments formerly touched p. 196 197 198 199. In the Parliaments of 18 21 Jacobi Sir Francis Bacon Viscount St. Alban Lord Chancellor of England and the Earl of Middlesex Lord Treasurer of England were impeached accused convicted of Bribery Corruption and other misdemeanors removed from their places fined Middlesex 50000 l. imprisoned made uncapable of any Office and thus censured by Iudgement of the Lords house as the Journals of those Parliaments
diu consultati sed inconsulti Equidem meum est posse et velle conferre gratiam cui voluero miserebor Nec propter vos amplius quam pro cane Quis in gratiam meam se submisit repulsam passus est Veruntamen vestrum judicium in scriptura redigatur et pro lege amodo teneatur Proinde dictus miles ad carcerem ducebatur ne impunitas armareâ— audaciam et rigor caeteris timorem incuteret contemnendi Et post paucos dies elaborantibus multis nobilioâ—ibus regni et ostendentibus se 30 suis paribus cinctis gladiis corpus pro corpore et bona pro bonis una in solidum quoquo die Rex eum vocaverit nec adesset liberatus est et per regem cunctis facultatibus suis restitutus So this Historian which compared with the Record infallibly proves that this resolution was given by the Earls Barons Lords and Judges advice who were the only aliorum de Concilio as assistants to the Lords then in all matters of Law as now they are not the Commons of which there is no mention in the records or this Historian that they were parties to it And this is likewise evident by the case of Margery the Wife of Thomas Weyland an abjured Judge in the Parliament of 19 E. 1. Cooks 1. Institutes f. 133. n. Where the Barons of the Exchequer and Justices of the Kings Courts were called to advise and assist the King and his Council of Lords in Parliament in a difficulty of Law therein to be resolved by their advice And therfore it follows that the LORDS ONLY IN THAT AGE were the Judges even of Commoners cases Thirdly Admit the Commons were included yet it proves only a right of advising and delivering their opinions with the Lords when required by the King not of judging or pronouncing sentence Fourthly Sir Edward Cook citing this president to prove That both Houses together have power of judicature must grant that even in 33 E. 1. there were two distinct Houses of Parliament who upon special occasions as now at conferences c. met and advised together and therefore the division of the Houses was before Edward the third his reign and very probable as antient as the summoning of Knights Citizens and Burgesses to the Parliament which some make as antient as King Henry the first or King Henry the 2. others not before King Henry the third in the 49 year his reign Father to King Edward the first So as this president makes quite against the Levellers and Lilburnians designs and opinions The 3 and 4. Presidents are those of Hugh Audley his Wife Claus 12 E. 2. m. 5. of Gaverston and the two Spencers Exiles 15 E. 2. forecited wherein the Commons gave their assents to the attainders and exiles of Gaverston and the Spencers and to the reversal of them But this I have already proved to be only by way of Bills not judicature by the legislative not judicial power of Parliament and that they were judicially condemned only by the Lords therefore these are nothing to the purpose and against the Objectors The 5. and 6. are the depositions of King Ed. the 2. and Richard the 2. for their mis-government wherin the Commons had a joynt vote and concurrence with the Lords which I shall hereafter answer in the supplement p. 429. to 460. The seventh President is that of Eliz. Burgh Widow in the Parliament of 1 E. 3. rot Parl. n. 11. who complained by Petition to the King that in the reign of King Edward the 2. she was by his Writ commanded to come unto him to Yorke and there by Hugh Spencer the younger and Robert Baldock and William Cliff his instruments inforced by duresse to enter into an Obligation to this effect that if she received any who were contrary to the King or maried any man without the Kings consent or if she gave any lands or tenements which she held in fee or in dower to any man living without the Kings license that for any of these she should forfeit all her Lands Tenements Goods and Chattels to the King as appeared by the transcript of the Bond annexed to her Bill whereupon she prayed Grace and remedy against this duresse and acquittance of our Lord the King from this Obligation Hereupon a Writ was sent to the Clerk of the Privy Seal in whose custody the Obligation was to bring it without delay Coram Concilio nostro in Parliamento ad faciendum inde ulteriut quod per idem Concilium nostrum contige it ordinari which being brought and delivered accordingly the 5 of March and deliberately read in full Parliament and agreeing with the transcript annexed to her Petition in all things Pur ceo que avys est as Archievesques Evesques Counts BARONS auires Grandes et a TOVTELA COMMONALTIE de la terre que lo dit escrit est fait contre ley de la terre enconter tout manere de reason si fuist le dit escrit PER AGARD DEL PARLIAMENT dampne illeoques livera ala dit Elizabeth I answer 1. That this judgement was given only in a civil case touching an Obligation made by duress not in a criminal 2ly That this Petition was directed only to the King and his Council not to the Commons in Parliament and the businesse heard before them 3ly That this being a Common case there being then many Petitions and complaints that Parliament of bonds of this nature the Commons joyning with the King and Lords in this judgement of Parliament in her case was only by way of Bill not in an ordinary way of judgement they exhibiting passing a Bill for that purpose as well as a Petition as is clear by the words of the Roll and by the printed Statute of 1 E. 3. c. 3. That fines sales and gifts of land and recognizances of debt made by force and duress to this Sir Hugh Spencer Robert Baldocke c. or to any of them be defeated And Parl. 2. ch 15. Whereas many of the Realm in the time of the Kings Father that now is by means of his false and evil Counsellors have been excited by divers to bind themselves to come to the K. with force and arms whensoever they should be sent for upon pain of life and limb and to forfeit all that ever they might forfeit by vertue of which writings divers of his land have been often destroyed The King considering that such writings were made to the Kings dishonour sithence that every man is bound to doe to the King as to his Liege Lord all that pertaineth to him without any manner of writing will that from henceforth no such writing be made And that such as be made by the sight of the Chancellor and Treasurer shall be shewed to the King and the K. shall cause all such as be made against right reason to be cancelled So that this main president meerly falls to the ground being
presidents are but few never judicially argued and rather connived at than approved by the King and Lords taken up with other more publike businesses therefore passing sub silentio they can make no Law rule or right as is resolved in Long. 5 E. 4. f. 110. Cooks 4. Reports f. 93 94. Slades case 6 Report f. 75. Druries case 5ly There are many express antient Presidents Statutes Judgements in most former Parliaments to the contrary sundry of them upon the Commons own Petitions and complaints which will over-ballance and controll these few late Presidents warranted by no old Records or Statutes whatsoever but contradicted by the constant practice of former ages To clear which truth beyond contradiction I shall shew you the very Original of the Commons summons to Parliament by the Kings writs out of meer grace not antient right or custom with the several varieties of Writs Statures touching elections of Knights Citizens Burgesses and chief cases resolved in Parliaments touching Elections breaches of Privileges relating to Members or their menial Servants that I finde upon record which will abundantly clear this point and refute these irregular puny presidents The original of our Parliaments as now constituted of King Lords and Commons is by several of our Historians Antiquaries and Writers referred to the 16. or 17. year of King Henry the 1. or at least to Henry the 2. his reign which I have already refuted by a particular list of all the Parliaments under them Yet many of this opinion affirm that the Commons were not constantly summoned to our Parliaments but only the Lords Spiritual and Temporal before the 49. of King Henry the 3. and beginning of Edward the 1. his reign neither had they a Speaker till 51 E. 3. Therefore no power of Judicature over their Members The first Writ I finde extant that savors of summoning Knights to Parliament is that in the 15. year of King Iohn wherein this King sent a Writ to the Sherif of Oxon in these words Rex Vicecomiti Oxon salutem Praecipimus tibi quod omnes Milites Ballivae tuae qui summoniti fuerunt esse apud Oxoniam ad Nos à die Omnium Sanctorum in 15. dies venire facias cum armis suis Corpora vero Baronum sine armis singulariter et IV. DISCRETOS MILITES DE COMITATU TUO illuc venire facias ad Nos ad eundem terminum AD LO QUENDUM NOBISCUN DE NEGOTIIS REGNI NOSTRI Teste meipso apud Witten 11 die Novembris Eodem modo scribitur omnibus Vicecomitibus This is no Writ of Summons to Parliament as some take it but rather to a Military Council as I conceive it For 1. There is no mention of any Bishops Abbots Priors Spiritual Lords Citizens or Burgesses summoned thereto but only of Barons without arms and Knights with arms 2ly Of all knights they had formerly summoned to appear there 3ly Of 4. not 2. discreet Knights out of every County and that not ad Parliamentum nostrum but ad Nos venire facias 4ly They were not to be elected by the people but immediately summoned elected and sent by the Sherifs themselves 5ly They were to come ad loquendum nobiscum not ad faciendum consentiendum hiis c. as the usual Writs of Summons for Knights of Shires are since without any power of Judicature to fine seclude or question one anothers elections or returns as now The very first express writ extant in History or Records that I can meet with upon search for the calling of Knights Citizens and Burgesses to Parliament is in 49 â—3 where the King after the battel of Evesham by his Writs summoned no less than 64 Abbots 36 Priors besides the Bishops and 5. Deans of Cathedrals and the Temporal Earls and Barons only 23. in number the rest being slain in the field or in actual rebellion After their Writs of Summons and name â—ollows this Writ or Note of summons for Knights Citizens and Burgesses and Barons of the Cinqueports Item mandatum est singulis Vicecomitibus per Angliam quod VENIRE not elâ—gi FACIANT duos Milites de Legalioribus Probioribus et discretioribus Militibus singulorum Comitatuum AD REGEM Londoniis in Octabis praedictis in forma supradicta Item in forma praedicta scribitur CIVIBUS Eborum Civâ—bus Lincoln caeteris Burgis Angliae quod mittant in forma praedict DUOS DE DISCRETIORIBUS LEGALIORIBVS PROBIORIBUS TAM CIVIBUS QUAM BURGENSIBUS SUIS Item in forma praedicta mandatuÌ„ est Baronibus et probis hominibus Quinque Portuum prout continetur in brevi inrotulato inferius Here the King 1. limited both the number and quality of the Knights Citizens and Burgesses when first summoned to our Parliaments 2ly He directed particular Writs to all Sherifs to summon not to elect by the choice of the Freeholders two of the legallest honestest discreetest Knights in their Counties which they alone were then to make choice of 3ly He sends particular Writs to some not all Cities and the rest of the Burroughs of England to send two of their discreetest legallest and honestest Citizens and so to the Cinqueports to send such Barons to this Parliament And if they returned any not thus qualified against the form of these Writs no doubt the King himself might refuse seclude them and he with his Lords were the sole Judges of their fitness for that service not they themselves to judge of their own or their fellow Members fitness or incapacity The first seclusion of any Knights Citizens and Burgesses in Parliament and electing others in their places was by the King himself with his Councils advice not by the Commons themselves for wilfull absence Claus 5 â— â— m. 26 dorso where divers Knights of Shires Citizens and Burgesses departing from the Parliament held at London without the Kings special license the King thereupon issued out Writs to the Sherifs of Yorkshire and other Counties to summon all such Knights Citizens and Burgesses within their Bayliwicks to return to the Parliament vel alios ad hoc idoneos loco ipsorum si ad hoc vacare non possunt eligere c. or to cause others who were fit to be elected in their places if they could not attend the Parliament with sufficient authority from the Counties Cities and Boroughs to consent to those things which should be ordained at the next Session of Parliament then prorogued to a certain day Here the King alone by his Writ takes authority to discharge those Knights Citizens and Burgesses who departed from the Parliament without his license and would or could not attend it without the Commons votes or assents and to command the Sherif to elect other sit persons in their places Claus 4 E. 3. m. 13 Dorso The King having issued out writs of Summons to Parliament dated Octob. 23. The 3 of November following he sent writs to all Sherifs to proclaim in all places That he being
special Clause inserted into the Writs of Summons Nolumus autem quod tu seu aliquis alius Vicecomes regni nostri aut Apprentius aut aliquis alius homo ad Legem aliqualiter sit electus as appears by the Exem â—caâ—ron thereof in the Claus Roll of 5 H. 4. pars 2. m. 4 dorso in the Tower which I have viewed with mine own eyes by sundry transcripts thereof in Manuscripts and by this testimony of Thomas Walsingham who lived in writ the History of that time Direxit ergo Rex Brevia Vicecomit bus ne quosquam pro Comitatibus eligerent quovismodo milites qui in jure Regni vel docti fuissent vel Apprenticii sed tales omnino miâ—teren ur ad hoc nâ—gotium quoâ— constat ignorare cujusque juris methodum factumque est ita Whence he stiles it in his Margin PARLIAMENTUM INDOCTORUM No Lawyer being elected by reason of this Clause grounded on the forecited Ordinance Sir Edward Cook who is not only full of mistakes and mis-recitals of Records but most confident in them citing this passage of Walsingham thus bodly contradicts him But the Historian is deceived for there is no such Clause in these Writs but it was wrought by the Kings Letters by pretext of an Ordinance in the Lords House in 46 E. 3. when as the Writ it self in the Clause Roll concurring which Walsingham ascertains me that Sir Edward himself was deceived not the Historian by whom or upon what mis-information I know not And that he was so in truth we have his own expresse confession and testimony against himself within few leaves after At the Parliament holden at Coventry Anno 6 H. 4. the Parliament was summoned BY WRIT and by coâ—ler of the said Ordinance of Parliament in the Lords House in 46 E. 3. it was forbidden that no Lawyer should be chosen Knight Citizen or Burgess by reason whereof this Parliament was fruitless and never a good Law made thereat and therefore called Indoctum Parliamentum or Lack-latin Parliament And seeing these Writs were against Law ergo this Clause against Lawyers elections was in the Writs themselves Lawyers ever since for the great and good service of the Commonwealth have been eligible And then contradicting himself again in the very next lines he addes And albeit the prohibiting clause had been inserted in the Writ implying it was not yet bâ—iâ—g against Law Lawyers were of right eligible and might have been elected Knights Citizens or Burgesses in that Parliament of 6 H. 4. His reason is because Lawyers being eligible of Common right cannot be disabled by the said Ordinance of Parliament in the Lords House being no Act though Acts and Ordinances of Parl. are both the same in substance vigor as I have elsewhere proved at large against his New false Doctrine to the contrary Wherefore this Ordinance is still obligatory to practising Lawyers whiles they practise as well as to Sherifs whiles they are Sherifs unlesse they give over their practice sitting the Parl. to attend the service of the House which their practice makes them to neglect Clause 8 E. 2. m. 31. The chief Justice and other Officers of Ireland and R. de Burgo Earl of Vlton are sent for by Writ to come to the Parliament of England ad tractanduâ— cum Praelatis et Proceribus de regno nostro praedicto Claus 50 E. 3. part â— m. 23. Pro Hibernis de Hibernia venientibus ad Parliamentum Angilae there is a Writ directed to the Justices and Chancellor of Ireland Quod de Communitate Comitatuum Burgorum terrae praedictae faciatis habere per Breve de magno sigillo nostro hominibus ejusdem terrae nostrae praedictae regnum nostrum Angliae penes Concilium nostrum pro Communitate Comitatuum Burgorum ultimo venientibus videlicet euilibet eorum de Communitate Comitatus pro quo electus fuiâ— sive Civitatis sive Burgi rationabiles expensas suas c. Teste 25 Julii The Parliament ended the 10th of July By which Writ it is apparent That not only the great Officers and some Nobles but likewise knights and Burgesses were sometimes summoned and chosen in Ireland to come to this Parliament of England and had Writs for wages allowed them These varieties of the Kings writs for electing Knights and Burgesses summoning sometimes 4. sometimes 2. sometimes but one Knight out of a County most times 2 Citizens and Burgesses sometimes but one limiting the qualifications of their persons and summoning not only Great Officers and Peers but likewise Knights Citizens and Burgesses out of Ireland and particular persons by name amongst the Commons as in 32 Ed. 3. part 2. m. 32. dorso together with his making of new Burroughs by his Patents and authorizing them to send Burgesses to Parliam when they never sent any before there being now three times as many Burgesses of Parliament as there were in the reigns of King Edward the 1 2 and 3. as appears by the Writs in the Dorse of the Clause Rolls for their expences and wages are clear proofs and evidences that the King and his Council in the Lords House are the sole Judges of the elections of the Knights Citizens Burgesses of the Commons House and that they themselves have no power at all to seclude or eject any persons duly elected and sent thither by the Kings Writs though more or less than usual or from new erected Burroughs And if any City or Burrough which sends Members to the Commons House by the kings Charter or usage forfeit their Charters and Privileges for which the king seiseth them into his hands as in 49 H. 3. he seised Londons and others Liberties and Cambridges since he may deny to send them Writs to elect Citizens or Burgesses till their Franchises be restored and their Charters renewed and deny to grant them this liberty of Election any more if he please proceeding from his meer grace and grant to them at first and so to be restored out of Grace not Justice when forfeited by their default The Statute of 5 R. 2. Parl. 2. c. 4. The King willeth and commandeth it is assented to by the Prelates Lords and Commons That all persons which shall from henceforth receive the Summons of Parliament be he Archbishop Bishop Abbot Peer Duke Earl Baron Baronet knight of the Shire Citizen of the City Burgess of the Burgh or other singular person or Commonalty and come not at the said Summons except he may reasonably and honestly excuse himself to our Soveraign Lord the King he shall be amerced and otherwise punished as of old times hath been used to be done within this Realm Here the Excuse is to be made by the Knights Citizens Burgesses and Commons as well as Lords Spiritual and Temporal to THE KING not Commons House and if they cannot excuse themselves unto him then they are to be amerced as of old time have been used And that was never by the Commons House but
4. n. 19 20 21. upon these and other Petitions of forcible disseisins and for imprisoning the Abbot of Meniham in Devonshire THE KING LORDS adjudged that this Sir Philip Courtney should be bound to his good behaviour and committed to the Tower for his contempt From which records it is evident First that Members of the Commons house may be complained and petitioned against for misdemeanors 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 less then can they expell or eject any of their Members by their own authority without the King and Lords concurrent consents No more than one Justice of peace Committee-man or Militia-man can un-Justice or â—move another since Par in parem non habet Imperium neither in civil military ecclesiastical nor domestical affaiâ— Thirdly that the power of restoring readmitting aâ—ended Member of the Commons house belongs not to the Commons themselves but to the King and Lords to whom the Commons in this case addressed themselves by petition for Courtneys readmission after his submission of the complaints against him to the arbitrement of those Members to whom the King and Lords referred the same In the Parliament of 17 Rich. 2. num 23. It was accorded and resolved by the King and Lords at the Complaint petition request of the Commons that Roger Swinerton who was endited of the death of one of their companions Iohn 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 until 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 ordinance at their request I find this objected against King Richard the 2. in the Parliament of 1 H. 4. n. 37. That he frequently sent his Mandates to Sherifs to return certain persons named only by himself and not freely chosen by the people to be knights of Shires thereby to effect his own ends and oppress the people with Subsidies But yet I find not in all his reign any one Knight thus unduly returned questioned by the Commons or suspended the House much less ejected by them or by the King and Lords upon the Commons complaint thereof unto them A clear evidence they had then no such power to eject their Members for being unduly elected returned as how they use In the Parliament of 20 R. 2. n. 14 15 16 17. The King being highly offended with the Commons for receiving Haxyes Bill said that the Commons thereby had committed an offence against him his dignity and liberty the which he willed THE LORDS to declare the next day to the Commons Who thereupon delivering up the Bill came fort with before the King shewing themselves very sorrowfull declaring to him that they meant no harm and submitting themselves to the King herein most humbly craved his pardon Whereupon the Chancellor by the Kings commandment declared That the King held them excused and the King by mouth declared how many wayes they were bound unto him Lo here the whole House of Commons submit themselves to the King in the House of Lords as Judges of them and their misdemeanors in Parliament and crave pardon for offending him In the Parliament of 2 H. 4. n. 45 46. The Commons house petitioning the King that the Act for his moderation of the Statute against Provisions might be examined for as much as the time was recorded otherwise than was agreed by them The King granted thereunto by protestation that the same should be no example where after Examination by the Bishops and Lords they affirmed the same to be duly entred which the King also remembred Whereupon the COMMONS the same day for this their misinformation came into the Lords House and knéeling before the King beseeched the King to pardon them if happily they through ignorance had or should offend him which the King granted Here the Bishops and Lords are Judges of the Commons misinformation misentry of an Act and the King of their Offence against him in Parliament by this misinformation which he pardons them upon their humble submission and no doubt might have punished them for it by the Lords assent and advice had he pleased So farr are they from being Judges in Parliament that themselves may there be judged if they therein offend as all their Speakers usual protestations and petitions to the King when presented evidence That the Commons may have liberty of speech and that if any Members in the House of Commons in communication and reasoning should speak more largely than of duty they ought to doe that all such offences may be pardoned which the King may punish if there be cause unâ—eâ—â—â— he pardon it of record upon the Speakers Protestation before hand Sir Edward Cook himself as well as the Parliament Rolls and experience informs us of these particulars touching the Speakers of the Commons House in Parliament their chiefest Member 1. That though the Commons are to chuse their own Speaker and that by the kings special command and license to them in every Parliament since they had one not with due â— who likewise prescribes them the time when to present him yet the use is as in the Conge de eslâ—yer of a Bishop that the king doth name a discreet and learned man to them whom the Commons do eâ—ect pro formâ— only because he cannot be appointed for them without their election being their mouth and â—usted by them 2ly That after the Commons choice the King may refuse him 3ly That after he is chosen he must be presented to the king by the Commons in the Lordâ— House for his approbation and confirmation in that plaâ—s the Commons sending up some of their Members to acquaint the Lords Spiritual and Temporal that according to the Kings command they had chosen such a one their Speaker and are ready to present him at the â—me appointed 4ly That where he is thus presented he is in disable himself for so weighty a service and to make sutâ— to the King to be discharged and a more sufficient man chosen in his place To which I shall adde that upon this excuse the king may discharge him if he please and command the Commons to elect another as King Henry the â— did discharge Sir John Popham when presented Speaker to him by the Commons in the Parliament
made and if he do not he shall be attainted of the said deed and pay to the party grieved his double damages to be taxed by the Judges of the said Bench for the time being or by Enquest if need be and also he shall make fine and ransom at the kings will which was accordingly executed as appears by 8 H. 4. f. 13 14. And moreover it is accorded in the same Parliament that likewise it be done in time to come in case like By which Petition and Act it is most apparent 1. That the King and Lords have the sole power of judging and punishing the breaches of Privilege of Parliament by batteries wounding or imprisonment and that both in the cases of Knights Citizens and Burgesses and of their menial seruants in such and the like cases 2ly That this Act gives the Commons no power at all to punish any man for breach of privilege in like case but only prescribes a certain remedy for time to come by imprisonment action double damages fine and ransom at the kings pleasure in the Kings Bench not Commons House or Parliament who are not fit to be troubled with such particular cases of privileges which would interrupt the more publike affairs Hence THE KING willing to provide for the ease and tranquillity of them that came to his Parliaments and Councils by his commandment hath ordained and established upon the Commons Petition by the Statute of 11 H. 6. c. 13. That the self same remedy proceeding damages and punishment shall be had in the Kings Bench not Commons House or Parliament as was prescribed in 5 H. 4. c. 6. against any person that shall doe any assault or affray to any Lord Spiritual or Temporal Knight of the Shire Citizen or Burgesse coming to the Kings Parliament or Council by his command How then the Commons can judge or determine such violation of privileges now against these Statutes and presidents and create themselves Judges of them transcends both my Law and reason In the Parliament of 7 H. 4. as I find in a special note though not in the Parliament Roll Sir John Tibetot the Speaker prayed que plest le Roy Seigniors That it would please THE KING AND LORDS that Robert Clifford companion of Richard Chiderough chosen knights for the County of Kent might appear for them both and doe all in both their names as if both of them were present in Parliament which the king and Lords assented to In the Parliaments of 8 H. 4. n. 83. 139. and of 11 H. 4. n. 54. Upon Petitions and complaints of the Commons to the king and Lords there were two Statutes made to prevent the abuses and false retorns of Sherifs touching the Elections of knights of Shires to inflict penalties on them by a Law which formerly were arbitrary at the kings and Lords discretion 7 H. 4. c. 15. and 11 H. 4. c. 1. The penalty inflicted by these Acts on the Sherif for a false return contrary to these Acts is only 100 l. fine to the king and such undue retorns are from thenceforth to be examined and tryed not by the Commons alone by information without Oath as now but by the Justices assigned to take assizes and that by Enquest and due examination upon trial before the said Justices which is likewise afterwards ratified by the Statutes of 6 H. 6. c. 4. 8 H. 6. c. 7. 32 H. 6. c. 15. wherof if the Sherif be found guilty he shall forfeit 100 l. to the king and the knights of Counties unduly returned shall lose their wages of the Parliament of old time accustoned not be turned out by a Committee of Privileges and others chosen in their places by the Commons Order as now And the Statutes of 1 H. 5. c 1. 6 H. 6. c. 4. 8 H. 6. c. 7. 12 H. 6. c. 2. 32 H. 6.15 touching elections of knights Citizens and Burgesses made since the former do not alter this Law nor give the House of Commons the least power or authority to judge or determin the legality or illegality of any elections but leave this to the King and Lords to redress as at first before their making and give the knights duly chosen but not returned 100 l. damages against the Sherif and Citizens and Burgesses 40 l. against Mayors and Baylifs who make false returns by way of action of Debt in the kings Courts at Westminster where the parties must sue for relief or in the Starchamber before the Kings Lords and Council as in Bronkers case Trin. 1. Eliz. not in the Commons house as these Statutes and presidents in our Law-books Dyer f. 113.168 Plowden f. 118. to 131. Old Book of Eniries f. 446 447. resolve How then the Commons are now becom sole Judges of all false returns and elections and that per legem et consuetudinem Parliamenti against all these Acts and presidents let Sir Edward Cooke and others resolve me and the intelligent when they are able not by the objected late arbitrary presidents which are of no value but by antient usage and Law of our Parliaments and solid reason which cannot be produced for to justifie these late Innovations and extravagances It is most true that in the cases of undue elections and breaches of privilege of the Commons house Members or Servants the King and Lords were antiently sole Judges not the Commons in any one case and that upon the Commons own Petitions as the premises evidence and I shall fully manifest by these ensuing punctual presidents In the Parliament of 8 H. 6. n. 39. The Commons petitioned the King for a Law to be made to prevent the manifold tumults uproars at and disorders in the election of knights of the shire by the vulgar rabble and meaner sort of people of small or no estate most busie and tumultuous in them having then a voice that the King by advice and assent of the Lords Spiritual and Temporal would seclude all from having voices at such elections for the future but freeholders who held 40 s. freehold by the year above all reprisals more than 40 l. a year now or upwards Which the King and Lords assented to and the Statute of 8 H. 6. c. 7. was hereupon made agreeable to this petition with that of 10 H. 6 c. 2. by like Petition in pursuance of it In this very Parliament of 8 H. 6. rot parl n. 57. One William Lake servant to William Mildred a Burgess of London was taken in execution for a Debt and committed Prisoner to the Fleet contrary to the privilege of the Commons house whereupon the Commons petitioned the King that by the advice and assent of the Lords Spiritual and Temporal at the special request of the Commons he might be enlarged which the King and Lords assenting unto gave order for his release and authorized the Chancellor to appoint certain Commissioners to take him again in Execution after the Parliament ended The Commons not then claiming the least power
Parliament which prerogative of the Court is so great as our learned Counsel informeth us as all Acts and Processes coming out of any other inferiour Courts must for the tiime cease and give place to the highest And touching the party it was a great presumption in him knowing our servant to be one of this House and being warned thereof before would nevertheless prosecute this matter out of time and therefore was well worthy to have lost his debt which I would not wish and thereforefore doe commend your equity that having lost the same by Law have restored him to the same against him who was his debtor and this may be a good example to other not to attempt any thing against the privilege of this Court but to take the time better Whereupon Sir Edward Montague then Lord chief Justice very gravely declared his opinion confirming by divers reasons all that the King had said which was assented unto by all the residue none speaking to the contrary The Act indeed passed not the higher House for the Lords had not time to consider of it by reason of the dissolution of the Parliament From this President I shall observe 1. That this is the first President that the Commons house ever sent their Serjeant to demand a Member imprisoned without first acquainting the King and Lords whereupon the Serjeant was thus resisted affronted 2ly That upon the Serjeants report of this resistance and contempt the Commons house did not undertake to punish it themselves though there were many of the Kings privy Council then of and in it but according to former presidents went and complained thereof in rhe Lords house praying them to redress and punish it 3ly That all the Lords and Judges there assembled judged the contempt to be very great 4ly That thereupon being busied with other weighty publike affairs they by special order referred the examination punishment thereof to the Commons House 5ly That thereupon the Commons by vertue of this special reference from the Lords not by their own inherent authority or Jurisdiction sent for the delinquent parties examined the contempt imprisoned the Sherifs of London and White in the Tower and the under Officers in Newgate 6ly That afterwards they acquainted the King and Lords with their proceedings who approved and commended the same 7ly That they would have confirmed part of their judgement by an Act to discharge Ferrers of the execution and not to revive it after the Parliament which passed but by 14. voices and never passed the Lords house who would not assent thereto All which particulars unanswerably evidence that the judgement and punishment of contempts and breaches of privilege of the Commons house and their Members belong wholly and solely to the Lords not to the Commons house at all unless by special order and reference from the Lords to the House of Commons who are to be informed of their proceedings and censures upon such a reference and to ratifie them by their assents or some Act of Parliament Therefore the conclusion of Crompton from this president and Dyer f. 60. which hath not a syllable to this effect That any Knight Burgess Baron of the 5. Ports or others called to the Parliament of the King shall have privilege of Parliament during the Parliament or Session of it so that he who arrests any of them during that term shall be imprisoned in the Tower by the Nether House of which he is and shall be put to a fine and the Kéeper also if he will not deliver him when the Serjeant at Arms shall come for him by command of the House is but a meâ—r mistake And the late objected Presidents have been grounded only upon his Authority and the mistaking or misapplying of Ferrers case W. Trewynnard a Burgess of Parliament in 35 H. 8. the very next year after this case of Ferrers was taken in execution upon an Exigent grounded on a Capias ad saâ—isfaciendum by the Sherif of Cornwal upon a complaint thereof to the King and Lords in Parliament there issued a Writ of Privilege in the Kings name during the Sessions of Parliament to R. Chamond then Sherif of Cornwal to release him reciting that he was a Burgess and likewise the Custom of the privilege of Parliament whereupon he was released the personal attendance of every Member being so necessary in Parliament that he ought not to be absent for any business because he is a necessary Member and therefore ought to be privileged from arrests Now the Parliament consisting of 3. parts to wiâ— of the King as chief Head the Lords the chief and principal Members of the Body and the Commons the Inferiour Members making up one body of Parliament as Chief Justice Dyer there resolves these inferior Members have no means to relieve themselves when their persons are arrested but by complaint to the Head or Chief and principal Members of this body as in all other Corporations where the Mayor Recorder Aldermen Justices and chief Officers are the only Judges not the Commons to hear and determine all injuries done to any Commoner Pasch 1. 2. Phil. Mariae Rot. 16. B.R. The Attorney General in the Kings and Queens name exhibited an Information against 34. Knights Citizens Burgesses of the Commons House for absenting themselves and departing from the Parliament then held without the Kings and Queens special license contrary to their Prohibition and in manifest contempt of the said King Queen and Parliament and to the great detriment of the state of the Commonwealth of this Realm and the ill example of others The Great Lawyer Edmond Plowden being one pleaded he was present at the Parl. from the very beginning of it to the end and that he departed not from it which he was ready to verify as the Court should direct and prayed judgement to be discharged Edward Harford another of them pleaded a special license to depart whereupon his prosecution was stayed but so that Process â—ill issued against the rest The Commons house therefore iâ— Q. Maries reign were not reâ—ted sole Judges of their own Members in cases of departure from Parliament in contempt to the publike prejudice and ill example of others as now they deem themselves by Sir Edward Cooks new-invented Law and Custom of Parliaments In the Parliament of 18 Eliz. Feb. 22. A report was made to the Commons House by a Committee appointed to consider how Mr. Halls man then a Member and imprisoned against his privilege might be released that the Committee found no President for setting at large by the Mace any person in arrest but only by Writ of Privilege And that by divers presidents and records perused by the Committee every Knights Citizen or Burgess requiring privilege for his Servant hath used to take a Corporal Oâ—th before the Lord Chancellor that the paâ—ty for whom such Writ is prayed came up with him and was his servant at the time of the arrest made Whereupon Mr.
Picardy ready to be transported into England But when it was certainly certified that King Richard was dead and that their enterprise of his deliverance was frustrate and void the Army scattered and departed asunder But when the certainty of King Richards death was declared to the Aquitaynes and Gascons the most part of the wisest men of the Country fell into a bodily fear and into a deadly dread for some lamenting the instability of the English people judged them to be spotted with perpetual infamy and brought to dishonour and loss of their antient fame and glory for committing so hainous a crime and detestable an offence against their King and Soveraign Lord. The memory whereof they thought would never be buried or extincted Others feared the loste of their goods and liberties because they imagined that by this civil dissension and intestine division the Realm of England should so be vexed and troubled that their Country if the Frenchmen should invade it should be destitute and left void of all aid and succour of the English Nation But the Citizens of Burdeaux took this matter very sore at stomach because King Richard was born and brought up in their City lamenting and crying out that since â—he beginning of the world there was never a more detestable or more villanous or hainous act committed which being sad with sorrow and inflamed with melancholy said that untrue unnatural and unmercifull people had betrayed and slain contrary to all Law and Justice and honesty a good man a just Prince and lawfull Governour beseeching God devoutly on their knees to be the revenger and punisher of that detestable offence and notorious crime 15ly The proceedings against King Richard the 2. in the Parliament of 1 H. 4. were in the Parliament of 1 E. 4. n. 9 10 11 12. condemned as illegal the Tyrannous usurpation of Henry the 4th with his hainous murdering of King Richard the 2. at large set forth his reign declared by Act of Parliament to be an intrusion and meer usurpation for which he and the heirs of his body are utterly dis inabled as unworthy to enjoy any inheritance estate or profits within the Realm of England or Dominions of the same for ever and that by this memorable Petition of the Commons wherein the pedigree of King Edward the 4th and his title to the Crown are likewise fully set forth a Record most worthy the publike view being never yet printed to my knowledge Ex Rotulo Parliamenti tenti apud Westm anno primo Edwardi Quarti n. 8. Memorandum quod quaedam Petitio exhibita fuit praefato Domino Regi in praesenti Parliamento per praefatos Communes sub eo qui sequitur tenore verborum For as much as it is notary openly and evidently known that the right noble and worthy Prince Henry King of England the third had issue Edward his furst gotten Son born at Westminster in the 15 kalende of Juyll in the vigille of Seint Marce and Marcellian the year of our Lord M. C.C.XLV the which Edw. after the death of the said King Henry his Fader entituled and called King Edward the furst had issue his furst gotten Son entituled and called after the decease of the same Edward the furst his Fader King Edward the second which had issue the right noble and honourable Prince King Edward the third true and undoubted King of Englond and of France and Lord of Irelond which Edward the third had issue Edward his furst gotten Son Prince of Wales William Hatfield secund gotten Son Leonel third gotten Son Duke of Clarence John of Gaunt fourth gotten son Duke of Lancaster Edmund Langley the fifth gotten son Duke of York Thomas Wodestoks the sixth gotten son Duke of Gloucester and William Wyndesore the seventh gotten Son And the said Edward Prince of Wales which died in the life of the said King Edward the thurd his Fader had issue Richard which after the death of the same King Edward the third as Cousin and heir to him that is to say Son to the said Edward Prince of Wales Son unto the said King Edward the third succeeded him in royal estate and dignity lawfully entituled and called King Richard the secund and died without issue William Hatfield the secund gotten Son of the said King Edward the third died without issue the said Leonel Duke of Clarence the third gotten Son of the same King Edward had issue Phelip his only daughter and died And the same Phelip wedded unto Edmund Mortimer Earl of Marche had issue by the same Edmund Roger Mortymer Earl of Marche her Son and heir which Edmund and Phelip died the same Roger Earl of March had issue Edmund Mortymer Earl of March Roger Mortymer Anne and Alianore and died And also the same Edmund and Roger sons of the foresaid Roger and the said Alianore died without Issue And the same Anne wedded unto Richard Earl of Cambridge the Son of the said Edmund Langley the fifth gotten son of the said king Edward the third as it is afore specified had issue that right noble and famous Prince of full worthy memory Richard Plantagenet Duke of York And the said Richard Earl of Cambridge and Anne his Wife died And the same Rich. Du. of York had issue the right high and mighty Prince Edward our Liege and Soveraign Lord and died to whom as Cousin and heir to the said King Richard the Crown of the Realm of England and the royal power estate dignity preheminence and governance of the same Realm and the Lordship of Ireland lawfully and of right appertaineth of the which Crown Royal power estate dignity preheminence governance and Lordship the said King Richard the second was lawfully rightfully and justly seised and possessed and the same joyed in rest and quiet without interruption or molestation unto the time that Henry late Earl of Derby son of the said Iohn of Gaunt the fourth gotten son of the said King Edward the third and younger Brother of the said Leonel temerously agenst rightwisnes and Iustice by force and Arms agenst his faith and liegeaunce rered werre at Flynte in Wales agenst the said King Richard him took and enprisoned in the Tower of London of grete violence And the same King Richard so being in prison and living usurped and intruded upon the royal power estate dignity preheminence possessions and Lordships aforesaid taking upon him usurpously the Crown and name of K. and L. of the same Realm and Lordship And not therewith satisfied or content but more grievous thing attempting wickedly of unnatural unmanly and cruel tyranny the same King Richard King anointed crowned and consecrate and his Liege and most high Lord in the Earth agenst Gods Law Mans liegeance and Oth of fidelite with uttermost punicion attormenting murdred and destroyed with most vile hainous and lamentable death whereof the heavy exclamation in the doom of every Christian man soundeth into Gods hearing in Heaven not forgotten in the Earth specially in this
advis and assent of the Lords Spiritual and Temporal and Commyns in the seid Parliament assembled and by authorite of the same declared approved ratified confirmed and accepted the seid title just good lawfull and true and thereunto gave his assent and agrreement of his free will and liberty And over that by the seid advis and auctorite declared affirmed and reputed the seid Richard Duke of York very true and rightfull heir to the Crowns Royal estate and dignite of the Realms of Englond France and Lordship of Irelond aforeseid And that according to the worship and reverence thereto belonging he should be taken accepted and repuâ—ed in worship and reverence by all the Estates and persons of the seid Realm of Englond The seid Usurper late called King Henry the sixth saving and reserving to himself the seid Crowns Realms royal estate dignite and preheminence of the same and the seid Lordship of Ireland during his life natural And further more by the same advice and authotiâ—e would consented and agreed that after his decease or when it should please him to lay from him the seid Crowns estate dignity and Lordship or thereof ceâ—â—ede the seid Richard Duke of York and his heirs should immediately succeed him in the seid Crowns Royal Estate dignity and Lordship and them then have and enjoy any Act of Parliament Statute Ordinance or any thing to the contrary made or interruption or discontinuance of possession notwithstanding And if any person or persons from thenceforâ—h imagined or compaced the death of the seid Richard Duke of York it be deemed and judged high Treason in manner and form as it is specified in the seid Act And that the seid Noble Prince Richard Duke of York by way and consideration of recompence for his abstaining for a time of the exercise of the seid royal power of the benigne and noble disposition that he bare to the said Common wele and to the rest and tronquillity of the seid Realm should have Castles Mannors lands and tenements to the value of 10 Mil. Marc. whereof the Earldom and City of Chester was parcel assigned to the said Duke by special Act made in the seid Parliament the which Earldom and City the seid Duke gave among other unto our seid Soveraign Lord then being Earl of March as parcel of Manors Lordships lands and tenements of the yearly value of 3 Mil. Marc. which by vertue of the seid convention and concord and the Act thereof made was given unto him for the sustentation of his estate abiding and persevering like a true Christian and honourable Prince in full purpose to keep and observe the seid Convention and concord for his party trusting verily that the seid Usurper Henry late called King Henry the sixth would have truly faithfully justly keped and observed for his party the same convention and concord inviolable as by Law reason Princely honour and duty he was bounden to doe and not have departed and varied from such convention made of so high and so great authority as it was made whereunto neither our seid Soveraign Lord ne the seid noble Prince assented but without prejudice of the seid right and ritle as it is plainly specified in the sâ—id Act made upon the seid convencion and Concord and under protestation and condition that the seid Usurpour shuld kepe and perform without fraude or male ingyne all things therein contained for his seid party declared openly by their mouths in the presens and heryng of the said Lords in the seid Parliament and therein enacted of Record at the grete instaunce and prayer of the same Usurpour late called King Henry the sixth And at the solempne request of all the seid Lords for the tender and special zele love and affection that he bare to the rest of the seid Realm and to the Commyn wele and policy thereof toke his viage of good blessed and vertuous intent and disposition toward the North parties of the said Realm to repress and subdue certain riots rebellions insurrections and commotions there begun And the premises notwithstanding the seid Henry Usurpour late called King Henry the sixth continuing in his old rancour malice using the fraud and malicious disceit and dissimulation agenst trouth and conscience that accord not with the honour of eny cristen Prince to th entent that the said Agrement concord and Act shuld take no due effect And into the frustacion of the same in the matiers and things above reherced that is to say that neither the seid Richard Duke shuld have ne enjoy the same Castells Manoirs lands and tenements name title reverence and worship above reherced neither he ne his sons and heirs succeed in the seid Corones Royal estate dignity lordship after the tenure fourm and effect of the said agreement concord and Act with all subtil imaginacions and disceitful ways and means to him possible intended and covertely laboured excited and procured the final destruction murdre and death of the said Richard Duke and of his Sons that is to sey of our seid new Soveraign Lord King Edward the fourth then Earl of March and of the noble Lord Edmund Earl of Ruthlande And for the execution of his dampnable and malicious purpose by writing and other messages moeved excited and stirred thereunto the Dukes of Excester and Somerset and other Lords being then in the North parties of this Realm whereupon at Wakefeld in the Shire of York the seid Duke of Somerset falsely and traiterously the same Noble Prince Duke of York on Teiusday the 30 day of Decemb. last passed horribly cruelly traiterously murdered And also the worthy and good Lords Edmund Earl of Ruthland Brother of our seid Soveraign Lord and Richard Earl of Salesbury And not therwith content of their insatiable malice after that they were dede made them to beheaded with abhomynable cruelte and horrible despite agenst all humanite and nature of Nobles And after that the same Henry Usurpour gretely and wonderfuly joying the seid dolorous and piteous murder of the same noble Prince and worthy Lords to the Realm an heavy and a lamentable sorrow and lost forthwith and oftentimes after openly declared to divers Lords of the same Realm That he would not in any wise kepe the seid Convencioun and accord ne the act thereof made and to the infraccion and violatiation of the said convention and concord not only sent Letters made under his prive Seal unto certain Knights and Squiers commaunding and charging them by the same to spoil and disseise our seid Soveraign Lord by the name of Earl of March of his possession of the seid Earldom and Citee of Chester whereof he was lawfully possessed and seased by vertue and reason of the seid Convencion and Concord but also of extreme violence utter and final breche of his party of the seid convencions and concord sent out writs under his Seal to the Mayer Aldermen and Commonalte of the Citee of London bering date the 22 day of Feverere last past and other like
should be holden once every year or more often if need be to redress divers mischiefs and grievances which daily happen especially delayes in Judgements and sutes at Law through difficulty or diversity of Opinions among the Judges To prevent which the Statute of 14 E. 3. c. 5. enacts that from henceforth at every Parliament shall be chosen a Prelate two Earls and two Barons which shall have Commission and power of the King to hear by Petition delivered to them the complaints of them that will complain of such delayes and grievances and to cause the records of such Judgements to be brought before them and to hear the cause and reasons of such delayes and by the assistance and advice of the Chancellor Treasurer Justices of both Benches and as many other of the Kings Council as shall seem convenient shall proceed to take a good award and make a good judgement therein And that the Judges shall proceed hastily to give Judgement according to their determination And in case it seemeth to them the difficulty be so great that it may not well be determined without the assent of the Parliament that the said Prelate Earls and Barons shall present the tenor or tenors of the said record or cause to the next Parliament and there shall be a final accord taken what judgement ought to be given in his case And according to this award shall be commanded to the Judges before whom the plea did depend that they shall proceed to give Judgement without delay And to begin to give remedy upon this Ordinance it was assented that a Commission and power be made to the Archbishop of Canterbury the Earls of Arundel and Huntington the Lord of Wake and the Lord Raufe Basset to endure till the next Parliament After which I find this Commission made in pursuance of this Ordinance Edwardus Dei gratia c. authorizing the Bishop of Chichester the Earls of Huntingdon and Devonshire and Tho. Wake of Lidell and Thomas de Berkley Barons assigned to hear querelas omnium qui se de gravaminibus dilationibus sibi factis coram Iustic et aliis conqueri voluerint per avisamentum Cancell Thes Iustic de atroque Banco aliis dâ— Consilio Regis according to the Ordinance made in Parliament 14 Ed. 3. c. 5. that Unus Praelatus Duo Comites et Duo Barones should have Commission and power to hear and determine such complaints Test Rege apud Westm nono die Iunii There is this Petition of the Commons to the King for declaring Treasons in 25 E. 3. Rot. Parl. n. 17. Item come les Iustices nostre Seignior le Roy assignez en diversâ—es Countees ajuggent les gentz que sont empeschez devant eux come Traiteurs pur diverses Causes desconues a la Comune estre Treason que please a nostre Seignior le Roy per son Counseâ—l eâ— per les Grantz et sâ—ges de la terre declarer les pointz de Treason en cest present Parlament Quant aâ—la Petition touchant Treason nostre Seignior le Roy ad Fait declarer les Articles de Y celle en maneâ— que ensuit as in the Statute of 25 E. 3. c. â— By which Petition Act and the like Petition in 21 E. 3. n. 15. it is apparent That the Right of declaring Judging what is High Treason in Parliament belongs originally to the King himself by the advise of his Councel Great men and Sages of the Land and not unto the Commons House at whose request the KING then made a Declaration of the Articles of Treason as in this Statute by his Nobles Councils and Iudges advice Therefore the Declaration of all other Treasons in particular cases not within this Statute belongs wholly to the King Lords Council and Judges in the Lords House not to the Commons alone or joyntly with them within the later branch of this Act as well as the Treasons within the body thereof viz. Because that many other like cases of Treason may happen in time to come which a man cannot imagin nor declare at this present time it is accorded that if any other case supposed Treason which is not before specified shall happen de novel before any Iustice the Iustice shall demurâ— without going to Iudgement of the Treason tanque per devant le ROY EN SON PARLEMENT soit le case monstre et declare de que leceo doit estre a jugge Treason ou autre Felony Against the Opinion of Sir Edward Cooks 3 Institutes p. 22. The Commons having no power at all to declare and judge what shall be Treason in such new particular cases but only when a New Treason is made or declared for the future by Bill or Act of Parliament wherein their concurrence is necessary as in all new Acts concerning Treasons since 25 E. 3. as is evident by Mr. Sr. Iohns Argument at Law this very last Parliament at the Attainder of Thomas Earl of Strafford and Mr. Samuel Browns Argument at the Lords House Bar to prove and satisfie the Lords House that he and Archbishop Laud were guilty of High Treason upon the Articles of their several Impeachments exhibited and proved against them of which the Lords and King alone were the proper Iudges but the Commons only their Impeachers and Prosecutors in the Iudicial way of Parliamentary Proceedings as I have formerly evidenced Therefore all the late Votes knacks Declarations of the Commons House alone before or without the Kings House of Lords Declarations Resolutions of sundry things to be high Treason and divers persons to be Traytors upon bare informations suggestions though not within the Letter of 25 E. 3. c. 2. are but meer illegal innovations extravagancies yea Nullities in Law fit to be eternally exploded especially by Lawyers the chiefest Innovators Promoters of them rather out of ignorance or rashnesse than Prudence Law or solid Iudgement for which they can produce no presidents in former ages In the year 1392. the 15 of King Rich. the 2. we have this memorable President of the Lords Iudicature together with the King assembled in a Great Councel without the Commons in the case of the Mayor Sherifs Citizens and City of London thus related by Walsingham at large Misit Rex ad Cives Londoniarum petens ab eis mutuo mille libras cui procaciter et ultra quam decuit restiterunt Sed quendam Lumbardom volentem accommodare regi dictam summam male tractaveâ—unt veâ—beraverunt er paulominus occiderunt Quae cum Rex â—udisset iâ—aâ—us est valde et convocaas omnes regnipene Majorâ—s apperuit proterviam civium Londoniarum et de praesumptione conqueritur eorundem Qui omnes infesti Civibus propter diversas causas consulunt ut reprimatur citius eorum insolentia et superbia destruatur Eranc quippe tunc inter omnes fere nationes gentium clarissimi arrogantissimi et avarissimi ac male creduli in deum traditiones avitas Lolardorum sustentatores