Committees and proceedings contrary to the rules of Law and Iustice to right all grieved Petitioners especially such who have waited at least seven yeares space at your doores for reparations relieve poore starved Ireland and raise up the almost lost honor power freedome and reputation of Parliaments by acting Honorably and heroically like your selves without any feare favour hatred or selfe-ends and confining your selves the Commons House to the ancient bounds and rules of Parliamentary Iurisdiction and proceedings and to excell all others as farre in Iustice Goodnesse and publike resolutions as you do in Greatnesse and Authority Which that you may effectually performe shall be the the prayer of Your Lordships in all humble Service W. PRYNNE A PLEA For the LORDS OR A short yet full and necessary Vindication of the Judiciary and Legislative Power of the House of Peeres and the Hereditary just Right of the Lords and Barons of this Realme to sit vote and judge in the high Court of Parliament THe treasonable and destructive designe of divers dangerous Anabaptists Levellers Agitators in the Army City Countrey and of Lilburne Overton their Champions and Ring-leaders in this Seditious Plot to dethrone the King unlord the Lords new-modell the House of Commons extirpate Monarchy suppresse the House of Peers and subvert Parliaments the onely obstacles to their pretended Polarchy and Anarchy are now so legible in their many late printed Petitions Libells Pamphlets and visible in their actings and publike proceedings that it rather requires our diligence and expedition to prevent then hesitancy to doubt or dispute them they positively protesting against and denying both King and Monarchy in their a A Remonstrance of many thousand aâ—zens to their own House of Commons p. 6. the just mans Justification p. 10. Regall Tyranny Discovered A Declaration from his Excellency and the Generall Counsell of the Army Ian. 11. 1647. p. 7. Speeches c. at a Conference newly published by Walker printed verbatim out of Dolman the Iesuit his Booke condemned Pamphlets and Remonstrances with the Power and Judicature of the House of Peers and their undoubted just Hereditary right to Vote act or sit in Parliament because they are not elected by the people as Knights and Burgesses are asserting b Lilburnes Iust Man in Bonds p. 1 2. A Pearl in a Dunghill The Free-mans Freedome Vindicated An Anatomy of the Lords Tyranny his Argument and Plea before the Committee against the Lords Authority his Petition to the Commons his Letters to Henry Martin Overtons Arrow of Defiance shot into the Prerogative Bowells of the House of Lords his Petition and Appeale A Defiance against Arbitrary Vsurpation The Agreement of the People and Petitions wherein it was presented to the House of Commons An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 192. to 204. That they are no naturall issues of our Lawes but the Exorbitances and Mushromes of Prerogative the Wenns of just Government the Sons of Conquest and usurpation not of choice and election intruded upon us by power not made by the people from whom ALL POWER PLACE and OFFICE that is just in this Kingdome OUGHT TO ARISE meere arbitrary Tyrants Vsurpers an illegitimate and illegall power and Judicatory who act and Vote in our affaires but as INTRUDERS who ought of right not to judge censure or imprison any Commoner of England even for libelling against them refusing to appeare before them reviling and contemning them and their Authòrity to their faces at their very Barre as Lilburne Overton bost and print they did or breaking any of their undoubted Priviledges And to accomplish this their designe the better they endeavour by their most impudent flattery to ingage the House of Commons against the House of Peers the better to pull them downe stiling and proclaming them in their c Overtons Petition and Appeal to the High and mighty States the Knights and Burgesses in Parliament assembled Englands legall Soveraigne Power The Râ—monstrance of many thousands to their own House of Commons A printed Petition now in agitation of many Freeborne people to the only Supreme Power of this Realme the Commons in Parliament assembled The Anatomy of the Lords Tyranny An Alarum to the House of Lords See M. Edwards Gangraena part 3. p. 154. to 204. Petitions and Pamphlets The ONLY Supreme legall Judicatory of the Land who ought BY RIGHT to judge the Lords and their proceedings from whom they appeale for right and reparations against the House of Peeres affirming That in the Commons House alone resides the formall and legall Supreme Power of England who ONELY are chosen by the people and THEREFORE IN THEM ONELY is the power of binding the whole Nation by making altering or abolishing Lawes without the Kings or Lords concurrent assents to whom they now absolutely deny any Negative voice making the Commons a compleat Independent Parliament of themselves and therefore present all their Petitions and addresses to them alone without any acknowledgement or notice of the House of Peers to whom they deny any right or title to sit or vote in Parliament unlesse they will first divest themselves of their Peerage and Barons right of Session and submit to stand for the next Knights and Burgesses place in the House of Commons that shall fall void where if they may have any voice or influence the meanest Cobler Tinker Weaver or Water-man shall be elected a Knight or Burgesse sooner then the best and greatest Peer and John of Leyden preferred before King or Prince Charles Sic Sceptra ligonibus aequanti which Petitions and Pamphlets of theirs have so puffed and bladdered up many Novices and raw Parliament-men in the Commons House unacquainted with the bounds proceedings and originall Constitution of Parliaments and the Lawes and Customes of England that they begin to act vote and dispose of the Army Navy c. without and against the Lords not expecting their concurrence contrary to all former proceedings of Parliament the Lords just Priviledges and their own Solemne League and Covenant to maintaine them which may prove destructive to both Houses the Parliament Kingdome and oppressive to their Representatives the people who generally dislike it if not timely redressed and breeds such a deadly feud between the Houses as may ruine them both and the Kingdome to boot The end of these Anabaptists Levellers and Lilburnians being only to * See M. Edwards Gangraena part 3. where this is fully demonstrated destroy the Parliament by setting both Houses at variance they inveighing as bitterly against the power proceedings Ordinances Votes Power Members undue Elections and unequall Constitutions of the House of Commons as the Lords and therefore have so earnestly pressed in their d Lilburnes Letter to a friend Innocency and Truth justified and his late Letters to Cromwell Martin Sir Thomas Fairfax and others Englands Birthright Englands lamentable Slavery Another word to the wise Comparata Comparandis Liberty against Slavery The
right to award Judgement in these cases without the King or them then which a fuller and clearer proofe cannot be desired In the self-same Parliament 1. R. â— num 41 42 43. Dame Alice Piers was brought before THE LORDS and charged by Sir Richard le Scrope with sundry misdemeanors which she denied hereupon divers Witnesses were examined against her Whereupon JVDGEMENT WAS GIVEN BY THE LORDS AGAINST HER that she should be banished and forfeit all her lands goods and tenements whatsoevèr To this Judgement neither King nor Commons were parties but the Lords only To these I might adde the cases of c See the doom of 〈◊〉 and treachery 〈◊〉 14 15. where the record is transcribed Sir William de Eleuham Sir Thomas Trivet Sir Henry de Ferriers and Sir William Farnden Knights and Robert Fitz Ralph Esquire Rot. Parl. 7. R. 2. num 24. sentenced and condemned by judgement of the Lords in Parliament pronounced by the Chancellour for selling the Castle of Burbugh with the armes and ammâ—nition in it to the Kings enemies without the Kings license 21. R. 2. Parl. Rot. Plac. Coronae num 27. where Sir Robert Pleasington is adjudged a Traytor after his death by the King by â—SSENT OF THE LORDS and num 15. 16. Sir Thomas Mortimers case num 17. Sir John Cobhams case * 31. H. 6. n. 45. 64. 65. â— 3. n. 16. to â—8 and num 28. Henry Bonoits case condemned in like manner of treason by the Lords with hundreds of Presidents more I shall only cite three more at large which are punctuall In the Parliament of 8. R. 2. n. 12. Walter Sybell of London was arrested and brought into the Parliament before the Lords at the suit of Robert de Veer Earl of Oxford for slandering him to the Duke of Lancaster and other Nobles for maintenance Walter denied not but that he said that certain there named recovered against him the said Walter and that by maintenance of the said Earl as he thought The Earl there present protested himself to be innocent and put himself upon the triall Walter thereupon was committed to Prison by the Lords and the next day he submitted himself and desired the Lords to be a mean for him saying he could not accuse him whereupon THE LORDS CONVICTED and FINED HIM FIVE HVNDRED MARKS TO THE SAID EARL for the which and for his fine and ransome he was committed to prison BY THE LORDS A direct case in point In the second Parliament in 7. R. 2. num 13. to 19. Iohn Cavendish a Fishmonger of London accused Michael de la Pool Knight Lord Chaâ—cellour of England first before the Commons and afterward before the Lords for bribery and injustice and that he entereâ—â—â—nto a Bond of x. l. to Iohn Ottard a Clerk to the said Chancellour which he was to give for his good successe in the businesse in part of payment wâ—â—â—eof he brâ—ught Herring and Sturgeon to Ottard and ye was delayed aâ—d could have no justice at the Chancellours hâ—nds and upon hearing he cause and examining wiâ—â— oâ—fes upon Oath before THE LORDS the Chancellour was cleared The Chancellour thereupon required reparation for so great a slander the Lords being then troubled with other weighty matters let the Fish-monger to Bail and referred the matter to be ordered by the Judges who upon hearing the whole matter condemned Cavendish in three thousand marks for his slanderous complaint against the said Chancellour and adjudged him to prison till he had paid the same to the Chancellour and made fine and ransome to the King also which the Lords confirmed In the Parliament of 15. R. 2. nu 21. Iohn Stradwell of Begsteed in the County of Sussex was committed to the fleet by JVDGEMENT OF THE LORDS there to remain during the Kings pleasure for that he informed the Parliament that the Archbishop of Canterbury had excommunicated him and his neighbours wrongfully for a temporall cause appertaining to the Crown and Common Law whâ—ch was ADIVDGED BY THE LORDS upon examination and hearing to BE VNTRVE These three eminent Presidents to which many more might be added of the Lords fining and imprisoning meere Commons only for slandering Peeres of Parliament even by false accusations against them in Parliament by way of complaint will â—â—stify the Lords proceedings against Lilburn and Ovâ—rton for their professed Libells both against their Persons and Jurisdictions too To proceed to latter times in Parliaments of 18. and 21. Jacobi and 3. Car. not only the Lord * Cook 4. Instit p. 23. Chancellour Bacon and the Earl of Middlesex Lord Treasurer upon complaint of the Commons were censured and judged by the Lords alone but likewise Sir Giles Mompesson Sir Iohn Michell and Dr Manwering all Commoners JUDICIALLY SENTENCED Doctor Pocklinton and Doctor Bray even for erroneous Books and Sermons were sentenced this Parliament by the Lords alone since these Master Clement Walker Esquire was imprisoned in the Tower and fined by the Lords for some words pretended to be spoken against the Lord Say and within these few moneths onâ— Morrice and foure or five more of his confederates were censured fined and imprâ—soned by the Lords alone for forging an Act of Parliament upon Sir Adam Littletons complaint with all the Commons privity or consents and above one hundred Commoner more have been imprisoned by them or fined this very Session of Parliament for breach of Priviledge contempts or misdemeanours by the Lords alone without the Commons yet no demurrer nor exceptions were taken by them or the Commons to their Iurisdiction who applauded this their Justice in some of these cases From all these cleare confessions of the Commons themselves in Parliament and punctuall presidents in print in former late Parliaments and in this now sitting it is undeniable That the King and Lords joyntly and the Lords severally without the King have an indubitable right of Judicature without the Commonâ— vested in them not only of Peers themselves but likewise of Câ—mmoners in all extraordinary cases of Treason Felony Trespasse and other Misdemeanors triable only in Parliament which hath been constantly acknowledged practised and submitted to without dispute much more then have they such a just and rightfull power in case of breach of their owne priviledges of d Cooke 4 Instit p. 15. which none are or can be Judges but themselves alone And to deny them such a power is to make the Highest Court of Iudicature in the Realme inferiour to the Kings Bench and all other Courts of Justice who have power to judge and try the persons and causes of Commoners and to commit and fine them for contempts and breaches of Priviledges as our e See Brooke and Ashes Tables Tit. Contempts Fines pur Contempt Imprisonment Law bookes resolve and every mans experience can testifie The Lords right of Judicature being thus fully evicted against the false and ignorant pretences of illiterate Sectaries altogether unacquainted with our Histories and Records of Parliament
which they never yet read nor understood there remaines nothing but to answer some Presidents and Objections The Principall president insisted on by Lilburne Object 1. is the Protestation of the Lords in the case of * Cooke 2. Instit p. 50. Sir Simon Beresford 4. E. 3. nu 6. which I have already fully answered retorted and shall therefore here pretermit The second is Sir Edward Cookes Authority Object 2. and the presidents cited by him in his 4. Institutes p. 23. 24. of Judicature in Parliament where thus he writes It is to be knowne THAT THE LORDS IN THEIR HOUSE HAVE POWER OF JUDICATURE And the Commons in their House have power of Judicature and both Houses together have power of Judicature But the handling thereof according to the weight and worth of the matter would require a whole Treatise of it selfe and to say the truth it is best understood by reading the Judgements and Records of Parliament at large and the Journalls of the House of the Lords and the Booke of the Clerke of the House of Commons which is a Record as it is affirmed by Act of Parliament in An. 6. H. 8. c. 16. To which he addes these marginall Notes Vide Placita in Parlians Anno 33. E. 1. rot 33. Nicholas Seagrave adjudgâ— Par Praelatos COMITES BARONES ET ALIOS DE CONCILIO At the Parliament at Yorke Ap. 12. E. 3. Consideratum est per Praelatos Comites BARONES ET COMMVNITATEM ANGLIAE the Lord Audleys care At the Parliament at Westm 15. E. 2 Hugh le pier adjuge per les SEIGNIEURS COMMONS Rot. Parl. 50. E. 3. n. 34. Lord Nevils case Then he aâ—des See Rot. Claus 1 R. 2. n. 5. 8. 38. â—0 A tresage Councell le Roy Les SEIGNIORS COMMONS c. Rot. Parl. 2. H. 5. nu 1â— Errâ—ra sinned THAT THE LORDS gave Judgement WITâ—OVT PETITION OR ASâ—â—NT OF THE COMMONS Rot. Parl. 28. H. 6. nu 10. and many others in the Reigne of King H. 6. and Kin E. 4. And of later times see divers notable Judgements at the prosecution of the Commons By THE LORDS at the Parliaments â—â—â—den 18. and 21. Iac. Regis against Sir Giles Mompesson Sir Iohn Michell Viscount St. Albon Lord Chancellor of England the Earle of Middlesex Lord Treasurer of England whereby the due proceedings of Iudicature in such Caces doth appeare Then hee cites the cases of * 8. Eliz. Thomas Long * 23 Eliz. Arthur Hall * 2. Aâ—â—â—l 1. Maâ—â—â— and Muncton censured by the House of Commons only and by them fined and imprisoned without the Lords Aâ—d concludes thus If any Lord of Parliament spirituall or temporall have committed any Oppression Bribery extortion or the like the HOUSE OF COMMONS BEING THE GENERALL INQUISITORS OF THE REALME comming out of all parts thereof may examine the same and if they find by the Vote of the House the charge to be true then they TRANSMIT THE SAME TO THE LORDS WITH THE WITNESSES and PROOFES From which passages of his some ignorantly have concluded That the Lords have no power of Judicature without but only joyntly with the Commons That all Commoners ought to be judged only by the Commons not by the Lords and That the Commons have a sole power of Judicature in cases of Commoners and the Lords no power but joyntly with them or upon their preceding Petitions and impeachments neither in case of Commoners nor Peers I answer that Sir Edward Cookes words are much mistaken and rightly understood warrant no such inferences but the contrary For first he clearely confesseth in direct termes That the Lords in their House have a power of judicature even without the Commons ha he deâ—med particularly in whose and in what cases out of the Judgements Records and Journals of Parliament at large to which he refers the Reader a being best understood by reading them which warrant the Lords judging fining imprisoning and condemning to death not only of Peers but of Commoners themselves without the Commons as I have fully manifested their could no such inference have been made Secondly â—e addeâ— That the Commons in their House have a power of Judicature From whence Lilburne and others inferre That they are and ought to be the sole Judges of all Commoners and not the Lords in all cases triable in Parliament But this is a most grosse mistake Sir Edward Cooke confining this Judicature of theirs only to these three câ—ses First to matters and abuse concerning elections of Knights Citizens and Burgesses being Members of the Commons House the judgment and determination whereof the Commons alone of late times only have usually taken upon them without the Lords which he proves by Thomas Longs case 8. Eliz. and no greater antiquities of which elections the King and Lords in former times have been sole Judges for which I shall cite some memorable records worthy the Lords and â—â—mmons consideration who now take upon them to suspend ejeâ—â— Judge their own Members elections without the Kings or Lords concurrence or privity a practice not heard of in former ages and of late originall In the Parliament holden at Westminster 5. H. 4. Rot. Parl. num 38. Thomas Thorpe his case Item because that the writ of summons of Parliament returned by the Sheriffe of Roteland was not sufficiently nor duely returned as the Commons conceived the said Commons prayed our Lord THE KING and THE LORDS IN PARLIAMENT that this matter might be duly examined in Parliament and that in case their shall be default found in this matter that such a punishment might be inflicted which might become exemplary to others to offend againe in the like manner Whereupon our said Lord the King IN FULL PARLIAMENT commanded THE LORDS IN PARLIAMENT TO EXAMINE THE SAID MATTER and to doe therein AS TO THEM SHOULD SEEME BEST IN THEIR DISCRETIONS And thereupon the SAID LORDS caused to come BEFORE THEM IN PARLIAMENT as well the said Sheriffe as William One by who was returned by the said Sheriffe for one of the Knights of the said County and Thomas Thorpe who was elected in full Countie to be one of the Knights of the said Shire for the said Parliament and not returned by the said Sheriffe And the said parties being duely examined and their reasons well considered in the said Parliament IT WAS AGREED BY THE SAID LORDS that because the said Sheriffe had not made a sufficient returne of the said writ THAT HE SHALL AMEND THE SAID RETURN and THAT HE SHALL RETURN THE SAID THOMAS FOR ONE OF THE SAID KNIGHTS as he was elected in the said Countie for the Parliament and moreover that the said Sheriffe for this default SHALL BE DISCHARGED OF HIS OFFICE and COMMITTED PRISONER TO THE FLEET and that he should MAKE FINE and RANSOME AT THE KINGS PLEASURE Loe here the Lords in Parliament at the Commons request and by the Kings command examining and giving judgement in case of undue election even without the
Commons An attendent on Sir Tho. Brooke chosen one of the Knights to serve in Parliament for the County of Somerset being grievously beaten by one Iohn Savage was upon a petition of the Commons relieved against this breach of Priviledge by * Ordinance or Act of Parliament 8. H. 4. 23. 14. made by consent of the King and Lords which is printed in 5. H. 4. c. 6. And in like maner Richard Strode Burgesse of Plimton was relieved against breaches of his priviledges as a Parliament man by a speciall act of Parliament assented unto by the King and Lords upon the Commons petition An. 4. H. 8. c. 6. the Commons alone being then unable to relieve them or punish these breaches by their owne authority as of late they presume to doe without King or Lords Quo Jure having not the power of Judicature vested in them I am yet to learne being contrary to the practice and presidents of all ancient Parliaments before our present age and the Statute of 11. H. 6. c. 11. provided for this very purpose which presents another remedy out of Parliament and not in only the Commons house In the Parliament of 16. R. 2. n. 6. The Wednesday after the Parliament began Sir Philip Courtenay returned by the Sheriffe of Devon for one of the Knights for that County came before the King in full Parliament and sayd that he understood how certaine people had accused and slandered him to the King and Lords as well by Bill as by mouth of heinous matters and therefore prayed TO BE DISCHARGED OF THE SAID IMPLOYMENT untill the said accusations and complaints were tried and found true or not true and because his said prayer seemed honest TO THE KING and THE LORDS THE KING GRANTED HIM HIS REQUEST and DISCHARGED HIM IN FULL PARLIAMENT AND the Monday following at the instance and prayer of the COMMONS the KING GRANTED THAT HE SHOULD BE RESTORED and REMITTED TO HIS PLACE according to the returne of the said Sheriffe for to counsell and doe that which belonged unto his office and after because he had been good and treatable with those who had complained upon him and condescended to a good treaty he was restored in full Parliament to his good same The charge against him is expressed in the same Parliament rol num 13. 14. where two Petitions preferred against him to THE KING and LORDS IN PARLIAMENT for putting Thomas Peutyngdon forcibly out of possession of the Manor of Bygelogâ— without just cause Richard Somestre out of other lands detaining them from them he being so powerfull in the County that no poore man durst to sue him Which Petitions were referred by consent in Parliament to certaine Arbitrators to determine From which record it is evident First that Members of the Commons house may be complained and petitioned against for misdeameanours and put to answer before the King and Lords in Parliament and there fined and judged not before the Commons house and that this was the antient way of proceeding Secondly that the Commons cannot suspend or discharge any of their fellow-Commoners or Knights from sitting in Parliament but only the King and Lords in full Parliament in whom the power of Judicature rests much lesse then can they expell or eject any of their members by their owne authority without the Kings and Lords concurrence and consents Thirdly that the power of restoring and readmitting a suspended Member of the Commons house belongs not to the Commons themselves but to the King and Lords to whom the Commons themselves in this case addressed themselves by petitinn for Courtneys readmission unto his office after his submission of the complaints against him to the arbitriment of those Members to whom the King and Lords referred the same In the Parliament of 17. R. 2. n. 23. It was accorded by the King and Lords at the request of the Commons that Roger Swinerton who was endited of the death of one of their companions John de Ipstones Knight of the said Parliament for the County of Stafford slain in coming towards the said Parliament by the said Roger should not be delivered out of prison wherein he was detained for this cause by bail mainprise or any other manner untill he had made answer thereunto and should be delivered by the Law the Commons alone by their own power having no authority to make such an order even for the murther of one of their own Members without the King and Lords who made this order at their request In the Parliament of 35. Eliz. when Sir Edward Cook was Speaker of the Commons House there fell out some questions in the Commons House about the Amendment of a mistake in the return of the Burgesse of Southwark * 5. R. 2. c. 4 8. H. 4. c. 14. 11. H. 4. c. 16. H. 6 c. 4. 8. H. 6. c. 7. 32. H. 6. c. 15 Ploud tol 11. 8 c. and after long debate it was resolved that the House could not amend it but the Lord Keeper in Chancery where the return was of Record if he thought it amendable by Law and that Masten Speaker should wait upon the Lord Keeper about it which he did who advised with the Iudges concerning it as appeares by the Journall And the Statutes made for redresse of abuse of Elections of Knights and Burgesses were made by the King and Lords upon the Commons petitions as appeares by 8. H. 4. n 83 1 9. 11. H. 4. n. 54. Neither of all which statutes gives the House of Commons alone any power of Iudicature to judge the right of Elections or punish abuses committed in them but leaves them to the Lords judicature as at first and gives the party injured an action at Law against the Sheriffe and â—others for false returns Secondly Sir Edmund Cooks words extend only matters of misdemeanor of any Members of the House of Commons committed in or against the House it self of which theâ— now though not anciently are the sole judges without the Lords which he proves by Arthur Halls case Thirdly to breaches of Priviledges of the Commons House alone in striking or arresting any of the Members or their priviledged servants which he proves by Munctons case and 11. H. 6. c. 11. 5. H. 4. c. 6. the two latter proving the contrary Yet in this case of breach of priviledge even in arresting the Commons Members and servants the Commons house were noâ— anciently the sole Judges as now In the Parliament of H. 6. n. 25. 26. 27. 28. Thomas Thorp chief Baron was chosen Speaker of the Parliament and after his election and before the Parliament which was proroged he was arrested and taken in execution at the suit of the Duke of York whereupon some of the Commons were sent up by the House to the King and Lords spirituall and temporall sitting in Parliament desiring that they might enjoy all their ancient and accustomed Priviledges in being free from arrests and propounded the case of Thomas Thorp
thâ—â—r Speaker to them desiring his inlargement whereupon the said Lords spirituall and temporall not intending to hurt or impeach the priviledge of the Commons but equally after the Courts of law to administer Justice and to have knowledge what the Law will weigh in that behalf declared to the Justices the premises and asked of them whether the said Thomas ought to be delivered from prison by force and vertue of the said priviledge of Parliament or not To the which question the chief Justices in the name of all the Justices aforesaid communication and mature deliberation had among them answered and said that they ought not to answer to that question for it hath not been used aforetime that the Iustices should in any wise determine the priviledge of this high Court of Parliam for it is so high and mighty in his nature that it may make that law which is not and that that is law it may make no law and the determination and knowledge of that priviledge belongeth to the Lords of the Parliament and not to the Iustices but as for declaration of proceedings in the lower Courts in such cases as writs of Supersedeas of Priviledge of Parliament be brought and delivered the said chief Iustice said that there be many and divers Supersedeas of priviledges of Parliament brought into the Courts but there is no generall Supersedeas â—rought to surâ—eâ—se all Processes for if there should be it should seem that this High Court of Parliament that ministreth all Justice and equitity should let the processe of the common Lawes and so it should put the party plainant without remedy for so much as * Vpon this ground 1. R. 2. n. 20. 87. 114. 2. R. 2. n. 8. 49. 5. R. 2. n. 44. 13 R. 2. n. 10. 30. 33. 15. R. 2. n. 9. 17. R. 2. n. 10 We find the Commons and Parliament very zealous to maintain the Common Law and referring causes and petitions to it when proper for it and unproper for the Parliament actions at Common Law be not determined in this High Court of Parliament And if any Person that is a Member of this High Court of Parliament be arrested in such cases as be not for Treason or Felony or surety of the Peace or for condemnation before the Parliament it is used that all such persons should be released of all such arrests and make an Attorney so that they may have the freedome and Liberty freely to attend upon the Parliament After which answer and Declaration it was throughly agreed assentted and concluded by the Lords spirituall and temporall that the said Thomas according to the law should remain still in Prison for the causes abovesaid the priviledge of the Parliament or that the same Sir Thomas was Speaker of the Parliament notwithstanding And that the premises should be opened and declared to them that were comâ—â— for the Commons of this land and they should be charged and commanded in the Kings name that they with all goodly hast and speed proceed to the election of another Speaker The which premises for as much as they were matters of Law by the commandements of the Lords were opened and declared to the Commons by the mouth of Walter Mâ—yle one of the Kings Sergeants at Law in the presence of the Bishop of Ely accompanied with other Lords in notable number and there it was commanded and charged to the said Commons by the said Bishop of Ely in the Kings name that they should proceed to the election of another Speaker with all goodly hast and speed so that the matters for which the King called this his Parliament might be proceeded in and this Parliament took good and effectuall conclusion and end VVhereupon thâ— Commons accordingly elected Thomas Charlton Knight for their Speaker the next day and acquainted the Lords therewith and desired the Kings approbation of their choice which was accorded unto by the King In the Parliament of 39. H. 6. n. 9. Walter Clerke one of the Burgesses of Parliament for Chippenham was arrested and imprisoned in the Fleet for divers debts to the King and others upon a Capias Uâ—lagatâ—m whereupon the Commons complained thereof to the King and Lords and desired his release and tendred them an Act of Parliament ready drawn for that purpose to which Petition and Biâ—â— of theirs the King by the ASSENT OF THE LORDS SPIRITUALL and TEMPORALL assented And thereupon hee was freed In like maner Richard Chedder In the Parliament of 35. Eliz. Thomas Fitz-Herbert of Staffordshire was elected a Burgesse of Parliament and two houres after before the Indenture returned the Sheriffe tooke him in upon a Capiâ—â— Utlagatum Whereupon he petitioned the House that he might have a Writ of Priviledge and be enlarged After many dayes debate and Argument of this case in the House by sundry Lawyers and Sir Edward Cooke then Speaker it was agreed That no Writ of Priviledge could in this case be returned into the House of Commons being but a Member of Parliament and no Court of Record but only into the Chancery or House of Peers And that this being a point of Law it was meet the Iudges should be advised with and determine it not the House And at last he was outed of his Priviledge by the Houses resolution In 28. H. 8. Dyer 60. The case of Trewinnerd a Commoner in point of Priviledge of Parliament concerning an arrest was argued and debated before the Judges in the Kings Bench And so was Chedders case in 8. H. 4. 12. 13. So as the Commons only are not the sole Judges of such Priviledge as many now concerve but the House of Peers and Kings Councell and Judges as well as they In these three cases only and no other that I find Sir Edward Cooke admits the Commons to be sole Iudges now though not anciently without the Lords Therefore to extend it generally to all or any other cases of Commoners but these is to pervert his words and extend them farre beyond his meaning Now Lilburnes Overtons Cases are none of these but directly under the Lords sole Iudicature because infringements of their Priviledges of which the Lords only are the Iudges as the Commons pretend they are of their Priviledges as his following passages manifest Thirdly hee addes that both Houses together have power of Indicature but determines not in what cases nor in what way of Judicature which hath caused the Objectâ—rs mistake But the Judgements Records and Iournals of Parliament to which he refers and the cases he cites in the Margin will affoyle this doubt and cleare his meaning which is this First That in attainders and judgements of High Treason Felony or other Misdemeaners in Parliament where the proceedings are not by way of tryall and ordinary Judicature but by * See 31. H 6. n. 45. 64. 38. H. 6. n. 9. to 36. Bill or Act of Parliament there both Houses together and the King too joyntly with them have the power of
to make such Knights Citizens and Burgesses lawfull Members of Parliament and to represent the Commons of England without any election of the people the Laws made by our Ancestors in Parliament See Littleton Fitz-Herbert Brut. Ashly Tit. VVarranty Obligat Covenant c. obliging their posterity whiles unrepealed as well as their Warranties Obligations Statutes Feofements Morgages and alienations of their Lands as the Objectors must acknowledge therefore they must of necessity grant their present sitting voting and judging too in Parliament to be lawfull because thus warranted by the Lawes and Customes of the Realme 4. If all Power in Government and right of sitting judging and making Lawes or Ordinances in Parliament be founded upon the immediate free election of all those that are to be Governed and of necessity that all those who are to be subject and they ought to be represented by those who have power in Government the Summe of f See M. Edwards his Gangraena part 3. p. 142. to 162. Lilburnes Overtons and the Levellers reasons against the Lords Iurisdiction then it will of necessity follow that the orders Votes Ordinances and Lawes made by or consented to by the Knights Citizens and Burgesses in Parliament ought not to bind any Ministers Women Children Infants Servants Strangers Freeholders Citizens Burgesses Artificers or others who cannot well or properly be represented but by persons of their owne sex degrees trades and callings and so every sex trade calling in each County and Corporation in England should send Members of their own to Parliament to represent them but only such Freeholders and Burgesses who had voices in and gave free consent to their Elections not any who have no voyces by Law or dissented from those elected and returned yea then it will necessarly follow that those Counties Cities and Burroughs whose Members have been injuriously impeached suspended driven away or thrust out of the House of Commons by the objectors and the Armies practise and violence contrary to all former presidents are absolutely free exempted and not bound by any Votes or Ordinances made or taxes imposed by the Commons House because they have no Members to represent them residing in Parliament and that those Counties and Burroughs whose Knights and Burgesses are dead or absent are no wayes obliged by any Votes Ordinances or Grants in Parliament And then how few in the Kingdome will or ought to yeeld obedience to any the Acts Ordinances or Votes of this present Parliament or to any Mayors Sheriffes Aldermen or Heads of Houses made by their Votes and Authority usually made by election heretofore or to any Iudges Justices Governours Generalls Captains or other Military Officers made by their Commission or appointment without the generality of the peoples Votes or consent especially when above halfe or three full parts of the Members were absent or driven from both Houses by the Objectors violence and menaces These Answers premised I shall now proceed to the proofe of the Lords undeniable Right and Authority to sit Vote and give Judgement in Parliament though not actually elected and called by the people as Knights and Burgesses are 1. It is evident by the Histories Republikes of most ancient and modern Kingdomes and Republikes in the world that their Princes Nobles Peers and great Officers of State have by the Originall Fundamentall Lawes and Institutions by right of their very g 31. H. 8 c. 10 See M. Seldens Titles of Honor Cassanaeus Catalogus Gloriae Mundi Alanso Lopez in Nobiliario and others who write of Nobility Cambd. Brit. of the Noâ—â—lity and Courts of Iustice in England Nobility Peerage and great Offices without any particular election of the people a just right and title to sit consult Vote enact Lawes and give Iudgement in all their Generall Assemblies of State Parliaments Senates Diets Councells as might be mainfested by particular instances in the Kingdomes Republikes Parliaments Diets and Generall Assemblies of the Iewes Egyptians Grecians Romans Persians Ethiopians Germans French Goths Vandalls Hungarians Bohemians Polonians Russians Swedes Scythians Tartars Moores Indians Spaniards Portugalls Danes Saxons Scots Irish and many others And to deny the like priviledge to our English Peers and Nobles which all Nobles Peers in all other Kingdomes Nations Republikes anciently have done and yet doe constantly enjoy without exceptions or dispute is a grosse unjury injustice and over-sight yea a great dishonor both to our Nobility and Nation Secondly By and in the very primitive constitution of our English Parliaments it was unanimously agreed by the Kingdomes and peoples generall consents that our Parliaments should be constituted and made up not of Knights and Burgisses onely elected by * E. H 6. c. 7. 10. H. 6. c. 2. 32 H. 6 c. 15. Crumpton Jurisdict p. 1. 2. 3. Cooke 4 Instit c. 1. Freeholders and Burgesses not by the generality of the vulgar people who would now claime and usurpe this right of election but likewise of the King the Supream Member by whose h Cooke Instit c. 1. n. 1. 10. Modus Tenendi Parliamentum Crompton Jurisdiction of Courts Tit. Parliament M. Seldens Tit. of Honour par 2. c. 5. writs the Parliaments were to be sommoned and by the Lords Peers Barons ecclesiasticall and civill and great Officers of the Realme who ought of right to sit vote make Lawes and give Judgement in Parliament by vertue of their Peerage Baronries and Offices without any election of the people the Commons themselves being no Parliament judicatory or Law-givers alone without the King and Lords as Modus tenendi Parliamentorum Sir Edward Cooke in his 4. Institutes ch 1. Mr. Seldens Titles of Honor part 2. ch 5. Vowell Camden Sir Thomas Smith Cowell Minshaw Crompton with others who have written of our English Parliaments assert and all our Parliament Rolls Statutes and i 33. H. 6. 16. Br. Parliam 4. 39. E 3. 7. 35. 11. H. 7 27. Br Parl. 107. 4. H. 7. 18. 7 H. 7. 14 Crumptons Iurisd f. 9. Co. 4. Institutes n 15 35. Fit f. 20. Dyer 92. Iudge Huttons Argument of Mr. Hamdens case p 32. 33. Law-bookes resolve without whose threefold concurrent assents there is or can be no Act of Parliament made Thirdly This right of theirs is confirmed by prescription and custome from the very first beginning of Parliaments in this Kingdome till this present their being no one president to be found in History or Record of any one Parliament held in this Island since it was a Kingdome without the King personally or representatively present by a Protector Custos or Regni Commissioners as he ought to be or without Lords and Peeres anciently stiled Aldermen Heretockes Senators Wisemen Nobles Princes Earles Counts Dukes c. by our Historians who make mention of their resorting to fitting voting and judging in our Parliaments Generall Assemblies and Councels under those Titles without the peoples Election long before the Conquerors time in the anciented Parliaments and Councels we read of
hill unto the Gallows at Tiburn there kenelled his bowels laid before him and after he should be hanged beheaded and quartered and his head sent to Calayes where the murther was committed and his quarters sent to other places where the King should please and thereupon command was given to the Marshall of England to make execution accordingly and it was so done the same day Lo here the Lords in Parliament gâ—ve judgement against a Commoner in case of a murther done at Calayes and so not triable at the Kings Bench but in Parliament and passe a judgement of High treason on him for murthering of a great Peere only And which is most remarkable all the Commons In this very Parliaments of 1 H. 4. nu 70. Nov 3. made their Protestation and further remonstrated to the King Nota. Com LES JVGGEMENTS DV PARLEMENT APEIRTEIGNENT SOVLEMENT AV ROY ET AS SEIGNEIVRS ET NIENT AS COMMVNES how the judgement of the Parl. appertained ONLY TO THE KING and TO THE LORDS and NOT VNTO THE COMMONS except in case it should please the King OF HIS SPECIALL GRACE to shew unto them the said JVDGEMENTS purcase de eux que null record soit fait in Parlement encoutreles ditz Communes quill soit ou serront parties ascunes juggements donez ouadoues en Apres in Parlement Whereunto it was answered by the Archbish of Canterbury by the Kings command how the said Commoners are petitioners and demanders and that THE KING THE LORDS de tont temps ont eves et aueront DE DROIT LES JVGGEMENT EN PARLEMENT en manere come me me les communes ount monstres HAVE ALVVAYES HAD AND SHALL HAVE OF RIGHT THE JVDGEMENTS IN PARLIAMENT in manner as the Commons themselves have declared except in making Statutes or in making Grants and Subsidies or such things for the common profit of the Realm wherein the King will have especially their advice and assent and that this order of proceeding shall be held and kept IN ALL TIMES TO COME By which record in Parliament it is apparent by the House of Commons own confession First that the Judgements in Parliament even in cases of Commoners appertain ONLY TO THE KING and LORDS in the affirmative Secondly that they appertain NOT TO THE COMMONS in the negative Thirdly that the King and LORDS HAVE ALWAYES HAD and ENJOYED THE RIGHT of Judgements in Parliament Fourthly that they should alwayes hold and enjoy this Right IN ALL TIMES TO COME Fifthly that the Commons speciall advise and assent was and is required by the King in Parliament only in making of Statutes Grants and Subsidies and such like things for the common profit of the Realm So full and punctuall a Parliamentary decision of the present controversie as is uncapable of any answer or evasion In the Parliament Roll of 17. y See Cook 3. Instit c. 2. p. 22. R. 2. num 20. 21. John Duke of Gayen and of Lancaster Steward of England and Thomas Duke of Glocester Constable of England the Kings Uncles complained to the King that Thomas Talbot Knight a Commoner and no Peere with other his adherents conspired the death of the said Duke in divers parts of Cheshire as the same was confessed and well known and prayed that the Parliament might judge of the faulâ— to wit whether it were treason according to the clause of the Statute of 25 E. 3. c. 2. It is accorded that if any other case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without any going to judgement of the Treason till the cause be shewed and declared before the King and His Parliament whether it ought to be judged Treason or Felony whereupon the KING and THE LORDS IN THE PARLIAMENâ— without the Commons though in case of a Commoner ADJVDGED THE SAME FACT TO BE OPEN and HIGH TREASON and thereupon they award two writs the one to the Sheriffes of Darby to take the body of the said Sir Thomas retornable in the Kings Bench in the moneth of Easter then next following and open Proclamation was made in Westminster Hall upon the Sheriffes return and the next coming in of the said Sir Thomas that the same Thomas SHOVLD BE CONVICTED OF TREASON and incurre the losse and pain of the same and that all such as should receive him after the same Proclamation should incurre the same losse and paine Sir z 3. Instit p. 22. Edward Cooke relating this Judgement addes his own opinion at the end That this judgement wanting the assent of the Commons was no Declaration of Treason within the Act of 25. E. â— because it was not by the King and his Parliament according to this Act but by the King and Lords ONLY But the record of Parliament and the Judges and Commons then admitted it to be good and processe issued out and judgement was given accordingly the parties concerned taking no such exceptions to it See 21. R. 2. n. 15. 16. So that this Record is a pregnant evidence That the King and Lords are the sole Judges in Parliament in the case of Commoners even in declaring and judging what is or what is not treason within the Statute of 25. E. 3. because the Commons are no Iudges in Parliament and so cannot Iudge or declare unles in a legislative way by Act of Parliament what is Treason or Pelony but the King and Lords alone To put this out of question I shall cite one notable record more to this purpose a Cooke 3. Instit p. 22. c. 1. p. 10. In the Parliament of 5. H. 4. 11. 12. on the 8. of February the Earle of Northumberland came before the King Lords and Commons in Parliament and by his Petition to the King acknowledged that he had done against his Lawes and alegiance and especially for gather of power and giving of Liveries for which he put himselfe upon the Kings grace and prayed pardon the rather for that upon the Kings Letters he yielded himselfe and came to the King at Yorke whereas he might have kept himselfe away Which Petition by the Kings command was delivered to the Justices to be examined and to have their counsell and advice therein Whereupon the LORDS made a Protestation que le Juggement appertient aeux tout soulement THAT THE JUDGEMENT APPERTAINED ONLY TO THEM And after the said Petition being read and considered before the King and the said Lords as Peers of Parliament a queux tells â—uggementz apperteignent DE DROIT TO WHOM SUCH JUDGEMENT APPERTAINED OF RIGHT having had by the Kings command competent deliberation thereupon and having also heard and considered as well the Statute made in the 25. yeare of King Edward the Kings Grand-father that now is concerning the Declaration of treason as the Statutes of Liveries made in this Kings raigne ADJUDGED that that which was done by the said Earle contained within his Petition was neither Treason nor Felony but Trespas for which
the said Earle ought to make fine and ransome at the will of the King Whereupon the said Earle most humbly thanked our Lord the King and the sayd Lords his Peers of Parliament FOR THEIR RIGHTFULL JUDGEMENT and the Commoners for their good affectious and diligence used and shewen in this behalfe And the said Earle further prayed the King that in assurance of these matters to remove all jealousies and evill suspitions that he might be sworn a new in the presence of the King the Lords and Commons in Parliament and the said Earle tooke an Oath upon the Crosier of the Archbishop of Canterbury to be a faithfull and loyall lige to our Lord the King the Prince his sonne and to the heires of his body inheritable to the Crown according to the Lawes of England Whereupon the King out of his grace pardoned him his fine and rausome for the trespas aforesaid After which num 17. the Lords spirituall and temporall humbly thanked the King sitting in his royall Throne in the white Chamber for his grace and pardon to the said Earle of his fine and ransome and likewise the Commons thanked THE LORDS SPIRITUALL and TEMPORALL FOR THE GOOD and JUST JUDGEMENT THEY HAD GIVEN AS PEERS OF PARLIAMENT TO THE SAID EARLE From this memorable record I shall observe First that though this Declaration of this Earles case was made by his Petition in the presence of the King Lords and Commons in Parliament according to the Statnte of 25. E. 3. yet the Lords only by Protestation in presence of the King and Commons claimed to be THE SOLE JUDGES OF IT as Peers of Parliament and belonging to them OF RIGHT Sâ—condly That this claime of theirs in this case was acknowledged and submitted to both by the King and Commons and thereupon the Lords only after serious consideration of the case and Statutes whereon it depended gave the definitive sentence and judgement in this case that it was neither Treason nor Felony but Trespas only c. Thirdly That the Earle thanked the King only for his grace the Lords FOR THEIR JUST JUDGEMENT and the Commons only for their good hearts and diligence having no share in the judgement though given by the Lords both in the Kings and their presence and that the Commons themselves returned speciall thanks to the Lords spirituall and temporall on Parliament for their good and just judgement Fourthly That this judgement of the Lords only was finall and conclusive both to the King and Commons who aquiesced in it All that can be objected to evade this President Object is that this Judgement was given in case of a Peer wherein the Lords only are the Judges by Magna Charta c. 29. but not of a Commoner which is the question I answer Answ that though this judgement of theirs was in case only of an Earle who was a Peer triable * See Cooke 2. Inslit on Maâ—na Charta c. 29. only by his Peers yet the King Lords in this Parliament the very same day gave Judgement of High Treason against Henry and Thomw Peircy one of them no Peer and OTHERS who were in their companie who were but Commoners and no Peers for levying warre against the King and that without the Commons as is evident by the Parliament Roll of 5. H. 4. nu 15. Et anxy mesme le vendreay AIVGGES PAR LE ROY ET SEIGNEIURS EN PARLEMENT que levier de guerre fait per les ditz Mounsieur Henry Mounsieur Thomas furont tenuz pur treason ceo si bien de eux mesmes come DE AUTERS qui fueront en lour compaigne au temps de dit lever which quite takes off this Objection Seâ— Mr. Prynnes Doome of Cowardice and Treacherie p. 2. 3. 4. 5. c. where these records are cited at large verbatim To put all out of question I shall instance in some few ancient prefidents more which are full and punctuall In the Parliament of 1. R. 2. num 38. 39. 40. The Commons prayed that all those Captaines who had rendred or lost Castles or Townes through default might be put to answer it in this Parliament and severely punished according to their deserts BY AWARD or Judgement OF THE LORDS and BARONS to eschew the evill examples they had given to other Governours of Townes and Castles Whereupon Sir Alexander de Buxton Constable of the Tower was commanded to bring BEFORE THE LORDS IN PARLIAMENT William de Weston and Lord of Gomynes both of them Commoners on Friday the 27. of November to answer such Articles as should be surmised against them on the Kings behalfe Being brought BEFORE THE LORDS in full Parliament they were severally articled against at the command of THE LORDS by Sir Richard le Scrop Knight Steward of the Kings House and their severall Articles and answers to them in writing being read before THE LORDS Which done the Constable was commanded to bring them againe before THE LORDS on Saturday next ensuing being the 20. of November on which day it was shewed unto them severally by the said Steward by THE LORDS COMMAND That THE LORDS OF THE PARLIAMENT whose names are particularly mentioned in the Roll had met together and considered of their respective answers and that IT SEEMED TO THE LORDS AFORESAID that the said William had delivered up the Castle of Outherwycke to the Kings enemies without any duresse or want of victuals contrary to his alleagiance and undertaking safely to keep it and therefore THE LORDS ABOVE NAMED SITTING IN FUL PARLIAMENT ADJVDGE you TO DEATH THAT you SHAL BE DRAWN and HANGED But because our Lord the King is not informed of the manner of the Judgement the exâ—cution of it shall be respited till the King be thereof inâ—ormed Aâ—ter which Judgemeâ—t given it was shewed to the said John Lord of Gomynes by the 〈◊〉 Steward how the said LORDS had assembled and considered of his answer and THAT â—â—â—â—â—EEMED TO THE LORD sitting in full Parliament that without duresse or default of victualls or other necessaries for the defence of the Town or Castle of Arde and without the Kings command hee had evilly delivered and â—urrendred them to the Kings Enemies by his own default against all apparance of right or reason against his undertaking safely to keep the same Wherefore THE LORDS aforesaid here in full Parliament ADJUDE YOU TO DEATH And because you are a Gentleman and a Baronet and have served the Kings Grandfather in his Warrs and are no Leigeâ—man of our Lord the King you shall be beheaded without having OTHER JUDGEMENT And because that our Lord the King is not yet informed of the manner of this Judgement the execution thereof shall be put in respite untill our Lord the King be informed thereof Loe here two expresse Judgements given in Parliament by the Lords alone without King or Commons in case of Treason even against Commoners themselves And an expresse acknowledgement of the Commons of the Lords
awarded him to the custody of the Marshall and to make fine and ransome at the Kings pleasure Whereupon the Commons REQUIRED by way of petition that he might lose all his Offices and no longer be of the Kings Councell which the King granted The Commons not joyning at all with the Lords in his judgement neither could they so joyne he being a Peer And for the Lord Nevill in that Parliament num 33. he was only accused not judged by the Commons Sixthly The case of 2. H. 5. rot Parl. num 15. that Error is there assigned that the Lords gave judgement without Petition or assent of the Commons is a grosse mistake For the record only recites That Thomas Mountague Earle of Salisbury Sonne and Heire of Iohn Mountague Earle of Salisbury exhibited his petition in Parliament to reverse a judgement given against his said father in the Parliament at Westminster in the second year of King Henry the fourth Whereupon he exhibited certaine reversals of Judgements given in Parliament as making on his behalfe to the Lords consideration reversed for some errors assigned in those jadgements to wit one judgement given against Thomas heretofore Earle of Lancaster before King Edward the second at Pomfract the monday before the feast of the Annuntiation in the fifteenth yeare of his reigne and another Judgement against Roger de Mortymer late Earle of March in the Parliament of King Edward the third the Monday after the Feast of St. Katherine in the fourth yeare of his reigne at Westminster Which judgements being distinctly and openly read and fully understood Jo seemed TO THE KING and LORDS that the case of the death and execution of the said John late Earle of Sarum and of the judgement aforesaid against him given is not nor was like to the case of the executing of the said Thomas heretofore Earle of Lancaster nor to the case of the killing of Roger Earle of March nor to any judgement given against the said Thomas and Roger as aforesaid but that the judgement and declaration had and given against the said Iohn late Earle of Sarum WERE A GOOD JUST and LEGALL DECLARATION and JUDGEMENT Per quod CONSIDERATUM FUIT in praesenti Parliamento PER PRAEDICTOS DOMINOS tunc ibidem existentes DE ASSINSU dicti Domini nostri Regis quod praefatus nunc COMES Sarum NIHIL CAPIAT PER PETITIONEM aut prosecutionem suam praedictam Et ulterius TAM DOMINI SPIRITUALES QUAM TEMPORALE supradicti JUDICIUMET DECLARATIONEM praedicta versus dictum Ioannem quondam Comitem Sarum ut praemâ—ttitur habita five reddita DE ASSENSU IPSIUS DOMINI REGIS AFFIRMARUNT FORE ET ESSE BONA JUSTA ET REGALIA et ea pro hujusmodi EX ABUNDANTI DISCREVERUNT ADJUDICARUNT TUNC IBIDEM This is all that is mentioned in this Parliament Roll concerning this businesse It appeares by the Parliament Roll of 2 H. 4. num 30. That Thomas Holland Earl of Kent Iohn Holland Earle of huntingdoâ— Iohn Mountagne Earle of Sarum Thomas Lord de Dispencer and Ralph omely Knight were impeached of high treason before the King and Lords in Parliament for levying actuall Warre against the King to destroy the King and his Subjects and for this taken and beheade and hereupon ALL â—â—E LORDS TEMPORALL BEING IN PARLIAMENT BY ASSENT OF THE KING DECLARED AND ADJVDGED all the said persons TRAITORS for leavying Warre against the King and that as Traytors they should forfeit all the lands they had in fee simple the 5 day of Jannary the first yeare of the raigne of the King or after according to the Law of the Land with all their goods and chattells notwithstanding they were slaine upon the said levying of Warre without processe of Law So this Record To reverse this judgement was this Petition of Thomas Earle oâ— Sarisbury in 2. H. 5. exhibited without the errour assigned as appeares by the Parâ—iament roll but if it were that the Lords only gave Judgement without Petition or assent of the Commons as Sir Edward Cooke imagins 〈◊〉 the King and Lords who upon solemned bate over-ruled the errour abuses and Petitions and found this judgâ—ment and Declaration of 2. H. 4. given by the Lords alone with the Kings assent without the Commons TO BE GOOD JVST and LEGALL as they did ex abundâ—nti is a most undeniable proofe of the King and Lords sole right of JVDGEING and DECLARING HIGH TREASON in Parliament without the Commons as well in case of Commoners as Lords Ralph Lomely being but a Commoner and Knight though the rest were Peers and yet all joyntly adjudged Traytors and declared such only by the King and Lords without the Commons and the Judgement assured to be good by the Commons who in the Parliament of 13. H. 4. num 19. Petitioned the Iohn Lomley might be restored by act of Parliament and made capable to inherit his fathers lands thus attainted to which the King by ASSENT OF THE LORDS SPIRITVALL and TEMPORALL consented Seventhly the Parliament Roll of 28. H. 6. num 18. c. containes onely an Impeachment of High Treason against the King and other great misdemeanors against the Kingdome and wrongs to particular persons comprised by way of Articles in two distinct Bills brought up by the Commons and presented by William Tresham their Speaker to the King in the Lords House the 7. day of February against William de la Pole Duke of Suffolke to which they desired the Duke might give in his Answer by a certaine day which he did absolutly denying the Treason against the King and denying and excusing himselfe of the rest without putting himselfe upon the Tryall of his Peeres The Chiefe Iustice thereupon the 14. day of March by the Kings command asked this Question of the LORDS WHAT ADVISE THEY WOULD GIVE THE KING what is to doe futrher in this matter which advise was deferred till Monday then next following whereon nothing was done in that matter On Tuesday the 17. of March the King sent for all the Lords Spirituall and Temporall then being in Towne being 42. in all into his Inner Chamber within his Palace of Westminster where when they were all assembled hee then sent for the Duke thither who comming into the Kings presence kneeled downe and continued kneeling till the Chancellour of England had delivered the Kings command to him and demanded of him what he said to the Commons Articles not having put himselfe upon his Peerage Whereupon the Duke denyed all the Articles touching the Kings Person and state of the Realme as false and scandalous And so not departing from his said Answers submitted himselfe wholly to the Kings Rule and Governance without putting himselfe upon his Peerage Where thus the Chancellour told him That as touching the great and horrible things contained in the first Bill the King holdeth him neither declared nor charged And as touching the second Bill containing misprisons which are not criminall the King by force of his submission by his owne advise and
Arraignement of Persecution The Ordinance against Tythes unmounted See Mr. Edwards Gangrana part 3. p. 209. to 204. Pamphlets and by some late e See the severall Remonstrances from his Excellency and the Army from June till December last The agreement of the people the grand Designe Putâ—ey Projects Remonstrances and Engagements from their Confederates and Agitators in the Army a speedy period and dissolution of this Parliament and a new modelling and more equall distribution of Members in the very House of Commons for the future All which Petitions Papers Remonstrances and Pamphlets of theirs tending to the utter subversion of Parliaments the fundamentall Lawes and Government of the Kingdome and introduction of all arbitrary popular Polarchy and Tyranny are rather to be ranked among and more agreeable to the Earle of Straffords and Canterburies Treasons which they exceed by many degrees then to be sleighted or countenanced as they are the keeping up of the honour of Peers and rights and Priviledges of both Houses within their just bounds without interfeiring or incroachment upon one another or invading the peoples just Liberties and Rights being the onely meanes of their and our preservation settlement security upon which consideration I shall endeavour as briefly and fully as I may to vindicate the undoubted Right of the Lords and Peers of this Realme to sit and vote in Parliament notwithstanding they are not elected by the people and make good the right and power of Judicature as well of Commoners as Peers against all cavills of the Anabaptisticall Levellers Lilburnians Sectariâ—s Agitators and I hope so farre to silence and stop their mouthes if not convince their judgements that they shall never be able to reply again hereto The sum of all they object against the Lords right of sitting voting and judging in Parliament is this 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 That they sit there only by Patent the Kings will Tenure or descent not onely by the Peoples free Election as the Knights Citizens and Burgesses doe That the people never intrusted nor invested them with any power but the King they represent themselves onely not the Commons and the Sonnes onely of Conquest brought in by the Conquerour of Usurpation not of Choice and Election 1. To this I answer first That our Earls Barons Nobles and Archbishops Bishops and Abbots too who held by Barony sate anciently in all our Parliaments and Generall Counsells and Assemblies many hundred yeares before the Conquest by right of Peerage and Tenure as now they doe as Modus tenendi Parliamentum g Epist to his 9. Report Institutes on Litleton p. 110 4. Institutes c. 1. Sir Edward Cook Vowell h M. Seldens Titles of Honour part 2. ch 5. where this is abundantly manifested Spelmaâ—ni Concil tâ—m 1. Truth triumpâ—ing over Falshood antiquity over Novelty p. 36 c. The Freeholders Grand inquest p. 4. to 20. and others write and our Historians record therefore this is a grosse mistake That they are the Sonnes of Conquest introduced by the Conquerour the rather because in all Empires and Kingdomes in the world though free and never conquered their Princes Nobles Lords and great Officers of State have ever sate in all their Parliaments Senates and Generall Counsells of State by reason of their Honors and places only without any popular Elections as is cleare by these Texts of Scripture 1 Chron. 13. 1 2. c. 28. 1 2. c. c. 29. 1. 6. 24. 2 Chron. 1 2 3. c. 5. 3. 4. c. c. 23. 2. 3. 20. 21. c. 30. 2. 3. 6. 12. c. 34. 29. 30. c. 35. 7. 8. Neh. 9. 38. c. 10. Esther 1. 13. to 22. Dan. 3. 2. 3. 2 Chro. 29. 30. c. 32. 3. Ezra 9. 1. c. 10. 8. 1 Sam. 5. 8. c. 29. 3. to 10. Psa 68. 27. Prov. 8. 15 16. Isa 19. 11. 12. 13. Jer. 17. 25. c. 26. 11. 16. c. 36. 12. 14. c. 37. 14. 15. c. 38. 4. 25. 27. Dan. 6. 1. 6 7. Jonah 3. 7. Psa 2. 2. Isa 1. 23. 26. compared together and by all Historians and Polititians testimonies 2. Secondly that they sit there onely by the Kings Patent is false for first many Peeres and Nobles have been created in and by i See M. Seldens Titles of Honour p. 2. ch 5. 14. â— 3. c. 35. 9. R. 2. n. 16. 20. R. 2. n. 80 1. H. 4. â— 81. with many more Parliament at the Commons and Peoples earnest Petitions and by Patents confirmed in Parliament of which there are many Presidents Secondly though the Kings Writ or Patent create others of them Peers and Baroâ—'s without the peoples consent yet the Lawes and Statutes of the Realme made by the Commons consents and approved by the people allow the King this power and authorize and k 5. R. 2. Stat. 2. c. 4 31. H. 8. c. 10. enjoyne Lords and Barons to sit in Parliament when thus created if there be no just exceptions taken to them by the Houses therefore though they are created Lords and Peers and sit in Parliament by the Kings Patent and Writ onely by way of instrument and conveyance yet originally and really they are made and sit there by the Lawes and Statutes of the Realme to which all the people have consented of which more hereafter Thirdly all ancient and new Cities and Burroughs who send Citizens and Burgesses to Parliament and the Divisions of Counties were originally created and invested with this power to elect Citizens Burgesses and Knights for the Parliament l Lâ—e Lit. c. 10. Sect. 162 164. Cook Ibidem 49. Ass 8. only by the Kings Letters Patents and Charters not by the peoples election and choice and none of them do or can choose or send Knights Citizens and Burgesses to Parliament m Cook 4. Instit c. 1. Crâ—mptons Jurisdiction of Couâ—ts c. 1. 1. R. 1. c 4. 8. H. 4 c. 14 8. H. 5. c. 7. 32. H. 6. c. 15 14 H. 5. c 3 l. 1. H. 7 12 2 H. 7. 13. a. 5. H 7. 9. H. 7. 12. 14 H. 6. 12. 7. â— 4. 14 15. â— 4 15. Cooâ— 1. 〈◊〉 250. a. without the Kings Writ directed to them but onely by power and vertue of it therefore if the Lords sitting in Parliament be illegall and unwarrantable because they sit onely by Patent and Writs from the King the sitting of Knights Citizens and Burgesses must be so too because they are elected only by the Kings Writ and enabled to elect and choose them only by his Patents the power of * creating Cities Burroughs and Knights being originally in the King as well as the power of creating Lords and Barons 3. Thirdly that the generall election of the people is not absolutely necessarie nor essentiall to the making of a King Magistrate Counseller of State Peer or member of Parliament
at all because some of the Lords were not come by reason of foule weather shortnesse of warning or other publike imployments all their personall presence in Parliament being reputed necessary and expedient And 20. R. 2. N. 8. The Commons themselves in Parliament required the King to SEND FOR SUCH BISHOPS and LORDS WHO WERE ABSENT to come to the Parliament before they would consult of what the Chancellor propounded to them in the Kings name and behalfe to consider of To recite no more ancient Presidents in the Parliament of 2. Caroli the Earle of Arundell sitting in the Parliament being committed by the King to the Tower of London about his sonnes marriage May 25 1626. without the Houses privity and consent whereby their Priviledges were infringed and the House deprived of one of their Members presence thereupon the Houses of Peeres adjourned themselves on the 25 and 26. of May without doing any thing and upon the Kings refusall to release him they adjourned from May 26. till June 2. refusing to sit and so that Parliament disolved in discontent his imprisonment in this case being a breach of Priviledge contrary to Magna Charta 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 * An Exact collection part 1. 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 Priviledges contrary to the Great Charter If then the Kings bare not summoning of some Peares to Parliament who ought to sit there by their right of Perage or impeaching or imprisoning any Peere unjustly to disable them to sit personally in Parliament be a breach of the fundamentall Lawes of the Realme and of Magna Charta it selfe confirmed in above 40. succeeding Parliaments then the Lords right to sit vote and Judge in Parliament is as firme and indisputable as Magna Charta can make it and consented to and confirmed by all the Commons people and Parliaments of England that ever consented to Magna Charta though they be not eligiable every Parliament by the freeholders people as Knights and Burgesses ought to be and to deny this birth-right and Priviledge of theirs is to deny Magna Charta it selfe and this present Parliaments Declarations and proceedings in the case of the Lord Kimbolton a member of the House of Peers Fifthly The ancient Treatise intituled * See Cooke â— Justit p. 12. for the Antiquity and for the Authority of this Treatise The manner of holding Parliaments in England in Edward the Confessors time before the Conquest rehearsed afterwards before William the Conqueror by the discreet men of the Kingdome and by himselfe 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 ancient as many now take it to be determines thus of the Kings and Lords right to be personally present in all Parliaments The King IS bound by all meanes possible TO BE PRESENT AT THE PARLIAMENT unlesse he be detained or let there from by BODILY SICKNESSE and then he may keep his Chamber yet so THAT HELYE NOT WITHOUT THE MANOUR OR TOWNE WHERE THE PARLIAMENT IS HELD and then he ougth to send for twelve persons of the greatest and best of them that are summoned to the Parliament that is two Bishops two EARLES two BARONS two Knights of the Shire two Burgesses and two Citizens to looke upon his person to testifie and witnesse his estate and in their presence he ought to make a Commission and give Authority to the Archbishops of the Peace the steward of England and Cheife Justice that they joyntly and severally should begin the Parliament and continue the same in his name expresse mention being made in that Commission of the cause of his absence then which ought to suffice and admonish the OTHER NOBLES cheife men in the Parliament together with the evident testimony of the twelve Peers of theirs The reason is BECAVSE THERE WAS WONT TO BE A CRY OR MURMVR IN THE PARLIAMENT FOR THE KINGS ABSENCE BECAUSE HIS ABSENCE IS HURTFULL and DANGEROUS TO THE WHOLE COMMONALTY OF THE PARLIAMENT and KINGDOME WHEN THE KING SHALL BE ABSENT FROM HIS PARLIAMENT Neither indeed OUGHT OR MAY HE BE ABSENT BUT ONELY IN THE CASE AFORESAID After which it followes The Archbishops Bishops and other cheife of the Clergy ought to be summoned to come to the Parliament and Also EVERY EARLE 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 miâ—st of the great bench and is bound to be present in the first and last day of Parliament And the Chancellors Treasurer and Barons of the Eschequer 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 after wards the BARONS of England after them the EARLES Whereupon if the Barons of the Cinqueports be not come the Barony from whence they are shall be amerced at an hundred markes and an Earle at one hundred pounds After the same manner it must be done to those who are Peers to Earles and Barons After which it relates the manner of place of the Earles Barons and Peers in Parliament Then addes The Parliament may be held and OVGHT every day to begin at one of the clocke in the afternoone at which time THE KING IS TO BE PRESENT AT THE PARLIAMENT and ALL THE PEERS OF THE KINGDOME None of all the Peers of the Parliament MAY OR OUGHT TO DEPART alone from the Parliament unlesse he have obtained and that in full Parliament leave from the KING and of ALL HIS PEERS so to doe and that with all there be a remembrance kept in the Parliament roll of such leave and Liberty granted And if any of the Peers during the terme of the Parliament shal be sick or weake 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 finde him sicke then he may make a Proxy Of the Parliament the King is the Head the beginning and ending So this ancient Treatise The Statute of 5. R. 2. Parl. 2. ch 4. enacts by COMMAND of the King and ASSENT of the Prelates LORDS and COMMONS 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 ACCVSTOMED within the Realme of England OF OLD TIME And every person of the said Realme which from henceforth shall have the
said Sommons be he Archbishop Bishop Abbot Prior DUKE LORD BARON Baronet Knight of the Shire Citizen of City Burgesse of Burgh or other singular person or Commonalty do absent himselfe or come not at the said Summons except he may reasonably or honestly excuse himself to our Soveraigne Lord THE KING HE SHALL BE AMERCED and OTHERWAYES PVNISHED ACCORDING AS OF OLD TIME HATH BEEN USED TO BE DONE within the said Realme in the SAID CASE Which relates unto and agrees expresly with that forecited out of Modus tenendi Parliamentum If then all the Judges and Peares in Parliament are bound to attend the Parliament not to depart without the Kings and Houses leave under paine of Amercement and other punishment as this Statute resolves and 3. Ed. 3. 19. Fit 2. Câ—ron 161. Stamford l 3. c. 1. f. 153. Cooke Instit p. 15. 16. 17. 43 18. E. 3. Mo. 1. 2 8. and 31. H. 6. n. 46. What fine were imposed on absent Lords manifest then questionlesse they ought of right to sit in Parliament else it were the height of Injustice thus to fine them In the tenth yeare of King â— * Grafâ—oâ—â— Cron. p. ◠〈◊〉 350. 2. this King absented himselfe from his Parliament then sitting at Westminster residing at Eltham about forty dayes and refusing to come to the Parliament and yet demanding from them foure fifteenes for maintenance of his Estate and outward Wars Whereupon the whole body of the Parliament made this answer THAT VNLESSE THE KING WERE PRESENT THEY WOULD MAKE THEREIN NO ALLOWANCE Soone after they sent the Duke of Gloucester and Bishop of Ely Commissioners to the King to Eltham who declared to him among other things in the Lords and Commons behalfe how that by AN OLD ORDINANCE THEY HAVE AN ACT if the King absent himselfe 40. dayes not being sicke but of his owne minde not heeding the charge of his people nor their great paines and will not resort to the Parliament they may then lawfully returne to their Houses And now sir said they you have beene absent a longer time and yet refuse to come amongst us which is greatly to our discontent To which the King answered Well we doe consider that our owne people and Commons goe about to rise against vs wherefore we thinke wee can doe no better then to aske ayd of our Cosen the French King and rather to submit us to him then unto our owne subjects The Lords answered Sir that Counsell is not best but a way rather to bring you into danger c. By whose good perswasions the King was appeased and Promised to come to the Parliament and condiscend to their Petitions and according to his appointment he came and so the Parliament proceeded which else had dissolved by the Lords departure thence in discontent and the Kings wilfull absence Andrew Horne in his Mirrour of Justices in the raigne of King Edward the first writes That our Saxon Kings divided the Realme into 38 Counties over which they set so many Counts or Earles and though the King ought to have no Peers in his land but PARLIAMENTS all Writs and Plaints of the Moneys of the King Queene and their Children and of those especially who otherwise could not have common right of their wrongs These Companions are now called Counts after the latine word Comites For to the Estates of the Realme King Alfred assembled the COVNTS or Earles and ordained by a Perpetuall Law that twice a yeare or oftner they should assemble at London in Parliament to consult of the Government of the people of God Fleta l. 2. c. 2. p. 66. writes thus in the same Kings raigne Habet enim Rex curiam suam in concilio suo in Parliamentis suis PRAESENTIBUS Praelatis COMITIBUS BARONIBUS PROCERIBUS alijs viris peritis vbi terminatae sunt dubitationes judiciorum moris injuriis eversis nova constituuntur remedia And l. 17. c. 17. he writes thus Rex in populo regendo superiores habet Vidilicet legem perfactus est Rex Curiam suam to wit of Parliament videlicet COMITES BARONES Comites enim a Comitia dicuntur qui cum viderint Regem sine froeno Froenum sibi apponere TENENTVR ne clament sabditi Domine Jesu Christe in Chamo froeno maxillas eorum constringe Sir Thomas Smith in his Common-wealth of England * Bracton l. 2. c. 〈◊〉 l. 3. c 9. 〈◊〉 the like in the same words in Henry the 3. his reigne l. 2. c. 1. John Vowel and Ralph Hollinshed vol. 1. c. 6. p. 173. Mr. Cambden in his Britania p. 177. John Minshew in his Dictionary vuell in his Interpreter Title Parliament Powell in his Attornyes Academy and others unanimously conclude That the Parliament consisteth of the KING the LORDS SPIRITVALL and TEMPORALL and the Commons which STATES represent the body of all England which make but one assembly or Court called the Parliament and is of all other the Highest and greatest Authority and hath the most high and absolute power of the Realme And that no Parliament is or can be holden without the King and Lords Mr. Crompton in his Jurisdiction of Courts affirmes particularly of the High Court of Parliament f. 1. c. This Court is the highest Court of England in which the King himself fits in person and comes there at the beginning and end of the Parliament and AT ANY OTHER TIME WHEN HE PLEASETH ORDERING THE PARLIAMENT To this Court come ALL THE LORDS OF PARLIAMENT as well spirituall aâ— temporall and are severally summoned by the Kings writ at a certaine day and place assigned The Chancellour of England and other great officers or Judges are there likewise present together with the Knights Citizens and Burgesses who all ought to be personally present or else to be amerced and otherwise punished if they come not being summoned unlesse good cause be shewed or in case they depart without the Houses or Kings speciall license after their appearance before the Sessions ended And he resolves that the King Lords and Commons doe all joyntly make up the Parliament and that no Law nor Act of Parliament can be made to binde the subject without all their concurrent assents Sir Edward Cooke not onely in his Epistle before his ninth Report and Institutes on Littleton p. 109. 110. But likewise in his 4. Institutes published by Order of this present Parliament c. 1. p. 1. 2 c writes thus of the high Honorable Court of Parliament This Court consisteth OF THE KINGS MAJESTIE sitting there as in his royall politick capacity and of the three Estates of the Realme viz. Of the Lords Spirituall Archbishops and Bishops being in number 24. who sit there in respect of their Counties or Barronies parcell of their Bishopricks which they hold also in their politick capacity and every one of these when the Parliament is to be holden ought exdebito Justitiae to have a writ of summons The LORDS TEMPORALL Dukes Marquesses Earles
of the arduous and â—rgent affaires of the Realme and Church of England as the first clause of the writ Carolus c. quia c. pro quibusdam arduis 〈◊〉 negotiis Nos Statum defensionem Regni nostri Angliae â—â—â—lâ—siae Anglicanae concernent quiddam Parliamentum nostrum teneri â—â—â—â—â—avimus ibidem cum Praelatis MAGNATIBUS PROCERIBUS dicti Regni nostri COLLOQUIUM HABERIET TRACTARE Tibi praecipimus And the Commons are summoned to performe and consent to those things which shall there happen to be ordained by this Com. Coun. of the Kingdom c. And if they are thus summoned not to treat amongst themselves as an independent and intire Parliament but to confirme and consent to what the King Prelates Great men and Peers the Common Councell of the Realm shall ordaine about such affaires as they must of necessity admit the King Lords and Peers to be altogether as essentiall yea more principall eminent Members of Parliament though not elective as the Knights Burgesses who are but summoned to consent to performe what shall happen there by common advise to ordaine or at least to consult and advise with them as their inferiors not to over-rule them as their superiors and the only Supream power in the Kingdom and if they will totally exclude either King or Lords from Parliament who are distinct essentiall Members of it as well as the Commons and have always been so reputed untill now the Commons may sit alone as Cyphers but not as a Parliament to vote or act any thing that is binding to the people since though in extraordinary cases for the saving of the Kingdome they may securely use extraordinary meanes proceedings yet regularly they are no more a Parliament without the King Lords theÌ„ the King or Lords alone are a Parliament without the Commons or the trunke of a man a perfect man without a head or shoulders If * Dyer 61. 62. Cooke 5 Report f. 90. 91. 94. 120. 121. v. 1. Rep. 111. 173 19. R. 8. 9. Br. executors 3. 15 11. 7. 12. 3. be joyntly impowred or commissioned to doe any act by Commission Deed or Warrant any one or two of them can do nothing without the 3d. If many be in Commission of the Peace Sewers or the like and three of the Quorum joyntly act there joyntly if any one of the three be absent all the rest can do nothing In Parliament it selfe 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 legall 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 custome of Parliament will make up an House as every mans experience can informe 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 â—or câ—ntinuing this Parliament cannot make nor continue the Commons alone together as a Parliament no more then 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 personall or representative presence The cutting of the head alone or of the head and shoulders altogether destroyes and kills the body Politicke and Parliament as well as the body naturall If the King dies or resignes his Crowne or be deposed the Parliament thereby is actually dissolved as it was resolved in the Parliament of 1. H. 4. n. 1. 2. 3. and 4. F. 4. 44. And so if the Lords or Commons dissolve and leave their House without any adjournment 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 onely of Commoners when the old one onely within the Act for continuing this Parliament made up both of King Lords and Commons is dissolved neither will or can be supported or warranted by the letter or intention of this Law Ninthly All the Petitions of the Commons in all Parliaments since the Conquest to the King or Peeres for their redresse of grivances recorded in many ancient Parliament Roules All Acts of Parliament extant usually runne in this forme * Cooke 4. Instit c. 1. The King with the assent of the Lords Spirituall and Temporall in Parliament hath ordained and be it enacted by the Kings most Excellent Majesty the Lords Spirituall and temporall in this present Parliament assembled The famous Petition of Right 3. Car. so much insisted on beginning thus Humbly shew unto our Soveraigne Lord the King the Lords spirituall and Temporall and Commons in Parliament assembled thus answered by the King Let right be done as is desired The Act of 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 Protestation Solemne League and Covenant taken by the Commons and Lords prescribed by them to all others throughout the three Kingdomes which couple the Lords and Commons alwaies together neither of them alone being able to make any binding Ordinance to the subjects unlesse they both concurre no more than one Member alone of either House can make a House and ranck the Lords alwaies before the Commons and the King before them both so firmely hold forth establish the Lords and Kings undoubted Right to sit and Vote in Parliament and decry this new mounted Monopoly of a sole Parliament of Commons without King or Lords that absolute Soveraigne Power these new Lights have spied out and set up for them in Vtopia that impudency it selfe would blush to vent such mad absurd irrationall Frenzies and Paradoxes as these crackbrain'd persons dare to publish and they may with as much truth reason argue that one man is three that the Leggs and trunke of a man are a perfect man without head necke armes and shoulders or that the Leggs and Body are and ought to be placed above the head neck and shoulders as that the House of Commons are or ought to be an entire Parliament the sole Legislative Power the onely Supreame Authority paramount both King Lords who must not have now so much as a Negative voyce to deny or contradict any of the Commons Votes or Ordinances though never so rash unjust dishonorable prejudiciall or dangerous to the whole Kingdome Tenthly These very Sectaries and Levellers themselves have acknowledged and asserted this Right of Power of the Lords all along this Parliament till of late c See innocency and truth justified p. 74. 75. Mr. Edwards Gangraena part
3. p. 156 157. where his words contradictions in this kinde are receited at larg as appeares by their severall Petitions and Complaints to them upon sundry occasions heretofore by their resorting to them for Justice against Strafford Canterbury and others Yea John Liburne himselfe till his late quarrell with them not onely acknowledged their very power of Judicature but highly applauded their Justice in his owne cause Petitioning and suing to them not onely for reversall of the sentence against him in Starchamber but likewise for dammages and reparations against his Prosecutors â—leading his cause by his Counsell before them as his proper Judges who thereupon by Judgement of the House vacated the Decree against him as illegall voted him Dammages and passed him an Ordinance for the recovery and levying thereof all which he himselfe both published in sundry of his printed Pamphlets wherein he acknowledgeth and extolleth their Justice Take but one passage for all in his Innocency and Truth justified p. 74. 75. If I be transmitted up to the Lords and confidently beleeve I shall get forward out of the former experiences of that Justice that I have found there and I will instance two particulars First when I was a Prisoner in the Fleet and secondly May the fourth one thousand sixe hundred forty one The King accused mee of High Treason and before the Lords barre was I brought for my life where although one Littleton servant to the Prince swore point blanke against mee yet had I free liberty to * He did not then demurr to their Jurisdiction speake for my selfe in the open House And upon my desire that Master Andrewes also might declare upon his Oath what hee knew about my businesse it was done And his Oath being absolutely contradictory to Master Littletons I was both freed from Littletons malice and the Kings accusation at the Barre of the whole House And for my part * Nota. I AM RESOLVED TO SPEAKE WELL OF THOSE THAT HAVE DONE ME JUSTICE and not to doubt THEY WILL DENY IT MEE till such time as by experience I finde they doe it And at that time he was so much for the Lords that he writes most disgracefully derogatorily of the Commons and other his Confederates by his example and of their want of power injustice and proceedings d His â—etter to a friend-Innocency and truth justified His â—etters to the Generall Hen. Martin L. G. Cromwell Englands Birthright See Mr. Edw. Gangraena part 3. p. 146. to 228. quarrells onely with them and their Committees for their delayes 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 examine him or any other Commoner 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 Lawes nor commit nor command any Commoner without the Lords and in one or two Pamphlets he endeavours to prove them to be now no lawfull House of Commons at all nor would hee ever acknowledge them to be so and that he would make no more conscience of cutting theirs and the Lords throates the Tyrants and Oppressors at Westminster then of killing so many Weasels and Polcats with many other like scurrilous and mutinous expressions His owne printed Papers Petitions and Actions therefore are an unanswerable confutation of his malicious contradictions of their Authority and judicature since for their exemplary justice on him and he must either now re-acknowledge their right of sitting voting and judging in Parliament to be lawfull or else renounce his owne former Petitions and addresses to them for justice retract all his former printed Papers asserting their Power and judicature and extolling their justice yea disclaime their judgment for vacating his owne Sentence in the Starchamber their awarding him Dammages and passing an Ordinance to recover them as meerly null and voyd being made before no lawfull or competent Judges as now he writes since not elected by the peoples Votes And let those his followers who admire him for his Law observe these his palpable and invincible contradictions and be ashamed and afraid to follow such an ignorant and erronious guide who writes onely out of malice and faction not of judgement as his contradictions evidence 11ly The Acts for preventing the inconveniences 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 confirme the Lords interrest and right to sit and Vote in Parliament beyond all dispute and give them anâ—w power to summone a Parliament themselves in some cases â—â— ly The ancient forme still continued till this day of dismissing Parliaments and dissolving them by the Kings licensive 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 speciall licence of the King during its continuance in dispite of all ignorant cavils to the contrary Having thus impregnably evinced the Lords undoubted right to sit and vote in Parliament though they be not elective by the peoples voyces as Knights and Burgesses are I shall next discover unto our illiterate Ignoramusses who oppose this their right the justice and good grounds and reasons of our Ancestors why they instituted the Lords and Peers to sit and vote in Parliament by right of their Nobility and Peerage which will abundantly satisfie rationall men and much confirme their right First the Nobles and Great Officers in all Kingdomes and in our Kingdome too in respect of their education birth experience and imployment in State-affaires have alwayes been generally reputed the wisest and best experienced Common-wealths men best able to advise and Councell the King and Kingdome in all matters of Government Peace or War as our Historians Antiquaries Polititians and Records acknowledge and attest whence they were antiently stiled e Mr. Seldenâ— Titles of honour part 3. ch 5. Sir Edward Cookes Epistle to the 9. Report and â— Instit p. 120. 4. Instit p. 2. Cambdens Brit. p. 177. Spelmanni Concil Tom. 1. Aeldermen Wisemen Magnates Optimates Sapientes Sapientissimi Clarissimi viri Conspicui Clarique viri Primates Nobiles c. in our Historians and Records and our Parliaments in that respect are frequently stiled in ancient times Consilium SAPIENTVM upon which Grounds our Kings and * 1. E. 3. n. 36. 55 56. 45 E. 3. n. 15 16. 50 E. 3. n. 10. to 14. 1 R. 2. n. 10. to 27 47 50 51. 112 113. 17 R. 2. c. 1
Spencers who seduced the King and oppressed the people and principall Pillars of our Laws Liberties as our m Walsingham Holingshed Daniel Speed Stow Grafton Fabian Baker Historians relate at large procured thâ—se ill Counsellours to be removed from the King even by force of Arms. In 10 11 22. of K. Rich. 2. the Lords were the principall opposers of the Kings ill Counsellours and Tyranny and protectors of the Laws and peoples Liberties to the losse of some of their lives hâ—ads and estates as our Statutes and Rolls of Parliament in those years and n Walsingham Trussle Fabian Holingshed Grafton Speed Stow. Historians witnesse whence Walsingham writing of the Duke of Gloucester's death murthered by the Kings command at Calice who was the principall Anti-royalist and head of all the Barons useth this expression Thus died this â—â—st of men the Son and Earl of a King in quo posita fuere spes solatium TOTIVS REGNI COMMVNITATIS in whom the hope and solace of the Common-wealth of the whole Kingdom were placed who resented his death so highly that in the Parl of 1 H. 4. Hall who had a hand in his murder was condemned and executed for a Traytor and his Head and Quarters hung up in severall places and K. Richard among other Articles deposed for causing him to be murthered Since then our Peâ—trs and Nobles have been alwaies persons of greatest valour power estate interest most able and forwards to preserve the Laws and peoples Liberties which they have upon all occasions defended with the hazard and losse of their Lives Liberties and Estates and upon this ground were thought meet by the wisdome of our Ancestors to enjoy this priviledge of sitting voting and judging in Parliament by vertue of their Peerage and Baronnies And since we must all acknowledge that the Lords were the chiefe instruments of calling this present Parliament and were therefore in the Act for Trienniall Parliaments principally intrusted to summon and hold all future Parliaments in the Kings and Lord Chancellours or Lord Keepers defaulâ—â— and were very active in suppressing the Star-chamber High-Commission Councel-Table Prelats and other grievances and those who first appeared in the Wars against the King and his party to the great encouragement of others witnesse the deceased Lord Generall Essex Brooke Bedford Stamford Willâ—ngh by Lincolne 〈◊〉 Manchester Roberts and others it would be the extremity of folly ingratitude and injustice to deny our Peeres this Priviledge and Honour now which their Ancestors have purchased at so deare a rate and a meanes to dis-ingage them for ever from the Commons and Republike for such an high dishonour and affront Thirdly our o See Master Sâ—ldâ—us Titles of Honour Part 2 chap. 5. and Coke 4. instit p. 1. Nobles are persons of greater Estates Families Fortunes then others and have more to keep and lose then other ordinary Commoners and therefore have greater interest in the Common-wealth and State-affaires then they And therefore our Ancestors thought it meet and just that they should have this priviledge among others above ordinary Commoners to be present in all our Parliaments by Writ onely and that of right ex debitâ— justitiae and not by election as Knights Citizens and Burgesses are being persons of meaner estate and quality and present in Parliament onely in the right of others who elect them not in their owne right as the Lords are whose estates anciently were far more worth then many whole Burroughes put together and their families retainers and followers far more in number And so their engagements to maintaine the Lawes Liberties and Properties of the Subject greater then inferiour mens Fourthly It is one principall property of Members of Parliament to be p Coke 4. Inst p. 3. constant stout inflexible and not to be bowed or turned from the right and publike good by feare favour promises rewards Now Peeres of noble birth and education and more generous heroick spirits then the vulgar sort of men are not so apt to be over-awed with regall threats terrified with menaces tempted with honours preferments and wealth which they already injoy in a higher proportion then others nor seduced with rewards and private ends from the common good and interest wherein their honour wealth and safety are imbarqued as ordinary Commoners and men of meaner ranke and fortunes as experience of former Ages and this present manifests Therefore it was thought just and reasonable by our Ancestors these Nobles in this regard should sit in Parliament in their owne rights * Modus tenendi Parliam Vowel Coke 4 Inst c. 1. without the peoples election and to leave the people to elect such other persons to represent and vote for them in Parliament in whom they most confided Fiftly our Peeres in Parliament * 12 R. 2. c. 1â— 23 H. 6. c. 11. 9 H. 6. c. 16. 31 H. 8. c. 11. 50 E. 3. n. 209. 1 R. 2. n. â— 37. though they serve for the common good of the whole Kingdome which have alwayes trusted in them in matters of counsel Judicature and making Laws yet they represent up persons but themselves onely and beare their owne expences 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 Citizâ—ns and Burgesses who serve for and represent them and therefore ought in reason right and justice to be elected by them And therefore they may as well argue That our Nobles ought to be elected by the people to their Lands and Estates which descend unto them from their Ancestors not from the common people as to sit in Parlâ—ament by the peoples election onely to represent themselves in their own right not the people in theirs And that the Knights of the Shire ought to be elected to their dignity of Knighthood which the King onely confers on them and to their Lands and Freeholds which they enjoy in their owne right because they are elected by the Free-holders to sit in Parliament in their right who elected them not their owne alone which Barons doe not By all which premisses it is most apparent That our Lords and Barons sitting and voting in Parliament who if you take them poll by poll have in all ages been more able Parliament men and States-men in all respects then the Commons though chosen by the people who alwayes make choice of the best and wisest men as experience manifests is not onely just and lawfull in respect of Right and Title but originally instituted upon such grounds of Reason and Policy as no rationall nor 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 and Encroachments both of King and Commons one upon the other keep both of them within their just and ancient bounds for the Kingdomes peace
safety The rather for that the very Act made this Parliament for the preventing of inconveniences happening through the long intermission of Parliaments not onely enacts but requires all the Lords and Barons of this Realme to meet and sit in every Parliament under a penalty but likewise prescribes an Oath to the Lord Keeper and Commissioners of the Great Seale under severe penalties to send forth Writs of Summons to Parliament to them all and in his default enabled and enjoyned the Peeres of the Realme or any twelve or more of them to issue forth Writs of Summons to Parliament under the Great Seale of England for the electing of Knights Citizens and Burgesses which Act will be meerly void and nugatory if their Votes and Right of sit in Parliament be denyed or the House of Peeres reduced to the House of Commons which this very Statute doth distinguish The Kings and Lords sole right of Judicature in Parliament without Commons cleerly evidenced The Lords Jurisdiction and undoubted Right to sit and Vote in Parlâ—ament being cleerly evicted and undâ—â—â—ably manifested by the Premises I shall next proceed to make good their Jurisdiction and lawfull Right of Judicature never questioned nor disputed till of late without the Commons concurrence To avoid mistakes and clear all scruples you must take notice that there is a two-fold proceeding in Parliament by way of Judicature and Censure First by Bill of Attainder and therein the King Lords and Commons must all concurre because such Judgement is given extrajudicially only by the Legislative power wherein the Commons have of Right a Vote and consent as well as the King and Lords and in this course of proceedings the King and Lords alone can doe nothing judicially without the Commons no more then make an Act of Parliament without them Of this kindâ— of Judgement and Attainder by Bill wherein the King Lords and Commons joyntly concurre there are sundry presidents both in cases Trespas Felony Treason and the like in our printed Statutes 1 H. 4. c. 6. compared with 9 H. 4. Exilium Hugonis de Spencer 15 E. 2. 1 E. 3. prologue and c. 2. 11 R. 2. c. 1 2 3. 5 6 7. 21 R. 2. c. 10 11 12. 9 H. 6. c. 3. 19 H. 6. c. 1. 3â— H. 6. c. 1. 25 H. 8. c. 12. 28 H. â— c. â—8 33. H. â— c. 21. 32 H. 8. c. 25. 2 and 3 E. â— c. 17 18. 1 Mar. c. 1. 16. â—â— Eliz. c. 1. 3. 3 Jac. c. 2. to which the Attaindors of the Earl of Strafford by Bill and Arch-bishop of Canterbury this very Parliament may be added Besides other presidents in the q See Plac. Coronae in Parl. 33 E. 1. Rot. 17. 22 John de Segraves case Plac. Corenae in Parl. 21 R. 2. n. 1. to 27 31 H. 6. n. 45. 64. 38 H 6. n. 9. to 26. Parliament Rolls many of which are cited by Sir Edward Cooke in his 3 Institutes c. 1. â— and M. S. John in his Argument as Law concerning the Bill of Attainder of High Treason of Thomas Earl of Strafford printed by Order of the Commons House Anno 1641. The like Presidents are extant in the Statutes of Ireland 28 H. 8. c. 1. for the Attainder of the Earl of Kildare and others 11 Eliz. c. 1. For the Attainder of Shan◠〈◊〉 and others â—3 Eliz. c. 6 and 7. For the Attainders of John 〈◊〉 Gerald and others An. 27 Eliz c. 1. For the attainder of James Eustuce and others 28 Eliz. c. 8 9. For the Attainders of the E. of Resmond John Brown and others 11 Jac. c. 4. For the Attainder of the Earl of Tyroâ—â— and others Secondly there is a formall Judgement given in Parliament in Causes civill and criminall upon Writs Petitionsâ— Indictments informations or Impeachments and that either against or between Peers themselves or against or between Commons who are â—â— Peers in both which the Lords have a proper Judiciary power without the Commons That they have such a legall and sole Judicatory in the case of Peers is * Cookes Instit on Magna Charta c. 14. 29. 3 Instit c. 1 2. 1 H. 4. 1. Stamf. l. 3. c. 1. 10. E. 4. 6. Bro. Triall 142. Treason 33. 29. 13 H. 8. 11. acknowledged by all who neither may nor ought by Law to be cryed or judge for any Treason or criminall cause unlesse in cases of †10 E. 4. 6. Coronae 34. Cooke 2. Instit p. 49. Triall Bro. 142. Appeale at the suit of the subject but only by the lawfull judgement of their Peers by the expresse provision of r Ch. 14. 29. 20 H. 6. c. 9. 26 H. 8. c. 12. 1 El. c. 1. 5. 5 El. c. 11. and diverse other Statutes See Ashes Tables Coâ—onae 84. Challenge 65. and 8. Magna Charta with sundry other Statutes and by the very Common Law This right of theirs in case of Peers is cleerly evident by the Judgement given in against Earl Goodwin in a Parliament under K. Edward the Confessor before the Conquest An. 1052. recited at large in M. Seldens Titles of Honour Part 2. c. 5. p. 634 635. in the Tryall of Roger Earle of Hereford in the 8. yeare of William the Conqueror who was sued and found guilty of Treason by his Peers Cooke 2. Institut p. 50. by the Judgement given in the Parliament of Northampton against Becket Arch-bishop of Canterbury which you may read at large in Stephanides * M. Selden by the answer of Will. du Breose to K. Johns Ministers Paratus sum ero Domino meo sine obsedibus satisfacere secundum Judicium Curiae suae BARONVM Parium meorum Which right of theirs is asserted by Sir E. Cook himself and proved at large in his 2 Institutes on Magna Charta c. 14. 29. in his 3 Institutes c. 2. where p. 31. he writes thus A Peer of the Parl being indicted of Treason or Felony or of misprision and duly transmitted to the Lords may be arraigned thereof in the upper House of Parl. As FREQUENTLY IN PARL †Titles of Honouâ— Part 2. c. 5. p. 705. 706 707. ROLLS IT DOTH APPEAR As Rot. Parl. 21 R. 2 Plac. Cor. nu 2 to 7. the Earl of Arundels case Rot. Parl. 5 H. 4. nu 11 12. 13. H. 6. nu 49. Earl of Dovers case 28 H. 6. nu 19. 50 51 52. Duke of Suffolks case To which might be added 7 R. 2. nu 22 c. The Bishop of Norwich case for delivering Gravelin to the Enemy Placita Corona in Parl. 21 R. 2. num 1 to 26. Rot. Parl. 50 E. 3. nu 27. The Lord Latymers case 2 H. 6. Rot. Parl. nu 18. The Impeachments of the Commons this Parliament against the E. of Strafford and Arch-bishop of Canterbury who were prosecuted by the Commons not tryed only by and before the Lords as their proper Judges and Peers See 4 E. 3. nu 14. 15 E. 3. nu 6. 8. 44 45. 51. 17