to them in all ordinary Civil and criminal causes For prooâ— whereof you may peruse at leisure M. Seldens Titles of Honour Part 2. c 5. Sect. 5. Sir Edw. Cooks Institutes on Magna Charta c. 35. His 4. Institutes c. 53. the Laws of King Edgar and Edward there cited Spelmanni Glossarium Tit. Comites Mr. Lambards Archaion f. 135. Horns Mirrour of Justices c. 1. Sect. 2 3. If then they were Judges of the Commons and people in every County by reason of their Honours Dignities even in antientest times in ordinary Causes there is great right and reason too they should be their Judges also in all their extraordinary causes as well criminal as civil even in Parliament 3ly The Lords Peers and great Officers of State in respect of their education learning experience in all proceedings of Justice and Law are more able fit to be Iudges of Commons in Parliament than ordinary Citizens and Burgesses especially if chosen out of the Cities and Boroughs themselves for which they serve as antiently they were and still ought to be by the Statutes of 1 H. 5. c. 1. 32 H. 6. c. 15. and by the very purports of the writs for their election at this very day de qualibet Civitate Com. praedict DVOS CIVES de quolibet Burgo DUOS BVRGENSES who have better knowledg skill in Merchandise and their several Trades than in matters of Judicature or Law Therefore the Right of Judicature was thought meet even after the Commons admission to our Parliaments to be still lodged and vested in the House of Peers as before who are the ablest and fittest of the two rather than in the Commons House 4ly Since the division of the Houses one from another if ever they sate together which cannot be proved the House of Peers are dis-ingaged and indifferent parties between the King and Commons and so fittest of all to he Judges between them as the Mirrour of Justices c. 1. resolves so it hath been stil furnished with the ablest Temporal and Spiritual persons for their Assistants in judgement and advice to wit with all the Judges of the Realm Barons of the Exchequer of the Coyâ— the Kings learned Counsel the Masters of the Chancery who are Civilians or Lawyers the Master of the Rolls the Principal Secretaries of State with other eminent persons for parts and learning and the Procuratores Gleri all which are called by Writ to assist and give their attendance in the upper House of Parliament where they have no voices but are to give their counsel and advice only to the Lords when they require their assistance especially in cases of Law and Judicature For proof whereof you may consult the Statutes of 31 H. 8. c. 10. The Register of Writs f. 261. Fitz. Nat. Brev. f. 229. a. b. M. Seldens Titles of Honor part 2. c. 5. Sir Edw. Cooks 4 Instit p. 4 5 6 44 45 46. and the Parliament Rolls and Authorities there cited by them seconded by our present experience Now the House of Peers being thus assisted with the advice of all the Judges of England the Kings learned Counsel and others ablest to advise them in all Criminal Civil or Ecclesiastical matters cases that come before them were in this regard thought fittest by our Ancestors and the Commons themselves who have no such assistants to have the principal and sole power of Judicature in all civil and criminal causes as well of Commoners as Peers that are proper for the Parliaments Judicature by way of censure or redress 5ly There can be no judgement given in any of the Kings Courts in Criminal causes but where the King is personally or representatively present sitting upon the Tribunal and where the proceedings are Coram Rege And therefore in the end of most antient Parliament Rolls we find the Title of Placita Coronae CORAM DOMINO REGE IN PARLIAMENTO SUO c. as in 4 E. 3. 21 R. 2. 1 H. 4. and other Parliaments Now as the Kings person is represented Judgements given Justice executed in all Criminal and Civil cases in the Kings Bench Eyres Goal Deliveries Oyers and Terminers and all his other Courts by his Judges and Justices in his absence So is it represented in our Parl. in the Lords house by his Commissioners and the Lords and Judgements given Justice executed by them in al criminal civil causes and no ways by the Commons who neither sit nor judge in the House of Peers Therefore the House of Peers only noâ— the Commons are the true and proper judicatoâ—y where the King the supream judge fits usually in Person and alwayes in representation in his absence 6ly There can be no legal trial or Judgement given in Parliament in Criminal causes or others without examination of witnesses upon Oath as in all other Courts of justice But the House of Peers alone have power to give and examine witnesses upon Oath and the whole House of Commons no such power but to take Informations without Oath which neither they nor their Committees can administer unless by special Order and Commission from the King or Lords Therefore the power of judicature in Parliament even in Commoners cases is inherent only in the House of Peers and not in the Commons House 7ly It is a rule both of Law and justice that no man can be an informer prosecutor and judge too of the persons prosecuted informed against it being contrary to all grounds of justice therefore he ought to complain and petition to others for Justice But the Commons in all ancient Parliaments and in this present have been informers and prosecutors in nature of a Grand Inquest to which some compare them being summoned from all parts of the kingdom to present publike Grievances and Delinquents to the King and Peers for their redress and thereupon have alwayes petitioned complained to the King and Lords for Iustice against all other Delinquents and offenders in Parliament not judged them themselves witness their many impeachments accusations complaints sent up and prosecuted by them in former Parliaments and this to the Lords not only against Peers but Commoners of which there are hundreds of presidents this very Parliament Therefore the House of Lords hath the proper right of judicatory vested in them even in Cases of Commoners not the Commons who are rather Informers Prosecutors and Grand Jury men to inform impeach than Judges to hear censure determine and give judgement as is resolved in 1 H. 4. n. 79. 8ly Those who are proper Judges in any Court of Justice whiles the cause is judging sit in their Robes and that covered on the Bench not stand bare at the bar sweat and examine the witnesses in the cause not produce them or manage the evidence and when the cause is fully heard argue and debate the businesse between themselves and then give the definitive sentence But in all cases that are to be tried and judged in Parl. the
and Law of the Land And this was the main reason of this their Protestation as the close of it shews to prevent such dangerous presidents for the future Upon which ground the Judgements they then gave against Roger Mortymer John Mautravers were reversed in the Parliament of 21 E. 3. n. 65.28 E. 3. n. 8. to 16. Lastly This Protestation did not foreclose the Lords in this or future Parliaments to give Judgement against Commoners in other cases of Felony and Treason even without the Commons which I shall prove by some other instances In the Parliament of 4 Ed. 3. n. 16. Sir Thomas Berkeley Knight was arraigned and tried by a Jury for Treason as being guilty of the death of King Edward the 2. committed to his custody who pleaded not guilty and was tried in full Parliament before the King by a Jury and by them acquitted Which case being rare and memorable I shall here insert the whole Record Thomas de Berkele Miles venit coram Domino Rege in pleno Parliamento suo praedicto et allocutus hoc Quod eum Dominus Edwardus nuper Rex Angliae pater Domini Regis nunc in custodia ipsius Thomae et cujusdam Johanuis Mautravors nuper extitit collatus ad salvo custodiendum in castro ipsius Thomae apud Berkele in Com. Gloucestriae et in eodem castro in custodia ipsorum Thomae Johannis murdratus extitit et interfectus qualiter se velit de morte ipsius Regis acquietare Dicit quod nunquam fuit consentiens auxilians seu procurans ad mortem suam nec unquam scivit de morte sua usquam in praesenti Parliamento isto et de hoc paratus est acquietare se prout CURIA REGIS consideraverit Et super hoc quaefitus est ab eo ex quo ipse est Dominus castri praedicti et idem Dominus Rex in custodia ipsorum Thomae Johannis extitit liberatus ad salvo custodiend ipsi custodiam ipsius Regis recepeâ—unt et acceptarunt quali er se excusare possit quin de morte ipsius Regis respondere debeat Et praedictus Thomas dicit quod verum est quod ipse est Dominus Castri praedicti et quod ipse simul cum Johanne Mautravers custodiam ipsius Regis recepit ad salvo custodiend ut praedictum est Sed dicit quod eo tempore quo dicitur ipsum Dominum Regem esse murdratum et interfectum fuit ipse taliter tanta infirmitate apud Bradeley extra Castrum praedictum detentus quod ei currebat memoriae Et super hoc dictum est ei quod ex quo cognovit quod ipse simul cum dicto Johanne custodiam ipsius Domini Regis obtinuit ut praedictum est et ipse custodes et ministros sub se posuit ad custodiam de eo faciendam si per aliquam infirmitatem excusari posset quin respondere debuit in hac parte Et praedictus Thomas dicit quod ipse posuit sub se tales custodes et ministros in castro praedicto pro custodia facienda a quibus ipse se confidebat ut de seipso qui custodiam ipsius Regis simul cum praedicto Johanne Mautravers inde habuerunt unde dicit quod ipse de morte ipsius Domini Regis auxilio assensu seu procuratione mortis suae in nullo est inde culpabilis Et de hoc de bono et malo ponit se suâ—er patriam Ideo venerint inde Juratores coram Domino Rege in Parliamento suo apud Westm in Octabis Sancti Hilarii proxime futuri c. Ad quam diem venit praedictus Thomas coram Domino Rege in pleno Parliamento ac similiter Juratores scil Johannes Darci Iohannes de Wisham Willielmus Trussell Rogerus de Swyneuerton Constantius de Morâ—imer Iohannes de sancto Phileberto Richardus de Rivers Petrus Hussey Iohannis de Dynton Richardus de la Rivere Robertus Dabenhate Richardus de Corveyes omnes milites Qui dicunt super Sacramentum suum quod praedictus Thomas de Berkelie in nullo est culpabilis praedicti Domini Edwardi Regis Patris Domini Regis nunc nec de assensu auxilio seu procuratione mortis ejusdem Et dicunt quod tempore mortis ejusdem Domini Edwardi Regis patris Domini Regis nunc fuit ipse tali infirmitate gravatus apud Bradely extra castrum suum praedictum quod de viâ—a ejus desperabatur Ideo idem Thomas inde quietus Juratores quaesiti si idem Thomas unquam substraxit se occasione praedicta dicunt quod non Et quia idem Thomas posuit custodes et ministros sub se scil Thomam de Gourney et Willielmum de Ocle ad custodiam de ipso Domino Rege faciendam per quod idem Dominus Rex extitit murdratus et interfectus datus est ei dies coram Domino Rege nunc in proximo Parliamento suo de audiendo JUDICIO SUO c. Et praedictus Thomas de Berkelei interim committitur Radulpho de Nevill Mareschallo hospitii Domini Regis c. It is observable that though Edward the 2. was murdered after he was deposed by this Parliament yet he is still â—â—lled a King in this Indictment and record and his murder adjudged Treason in those who did it After his acquittal he put in Mainpernors to appear in the next Parliament Where appearing he and his Mainpernors were discharged but yet himself ordered to appear again the ensuing Parliament as appears by the Parliament Roll of 5 E. 3. n. 16. William Thorp Chief Justice of the Kings Bench and one of the Justices of Assize in the County of Lincoln in the 23 year of Ed. the 3. against his Oath took 10 l. of Richard Saltley 20 l. of Hildebrand of Beresward 40 l. of Gilbert Holliland 40 l. and 10 l. of Ro. Daldorby to stay an Exigent upon an Indictment of diverse felonies that should have issued against them Whereupon he was indicted before the Earls of Arundel Warwick and Huntingdon the Lord Gray and Lord Burghers Anno 24 E. 3. to whom the King by Commission referred the examination of the businesse before whom he could not deny but confessed the Bribery Ideo consideratum est per dictos Justiciarios assignatos ad judicandum secundum voluntatem Regis et secundum regale posse suum quod quia praedictus Willielmus Thorpâ— qui sacramentum Domini Regis quod erga populum suum habuit custodiendum fregit malitiose false et rebelliter in quantum in ipso fuit ex causis supradictis ipsum Willielmum expresse cognitis ideo SUSPENDATUR et quod omnia terra et tenementa bona et catalla sua remaneant forisfacta The King by a writ under the privy Seal stayed his execution and sent him Prisoner to the Tower In the Parliament of 25 Ed. 3. nu 10. command was given that the record of this Judgement
by their Speaker acknowledge the right of judicature in the case of a Commoner to be only and wholly in the Lords even in a criminal cause and thereupon pray the Lords to give judgement against him upon their Impeachment which they did accordingly in their robes as Judges by the mouth of the Lord Keeper their Speaker In this very Parliament now sitting Decemb. 21. Jan. 14. Febr. 11. 1640. and July 6. 1641. The Commons House by their Members impeached Sir John Bramston Chief Justice of the Kings Bench Sir John Finch Chief Justice of the Common Pleas Sir Humphry Davenport Chief Baron Judge Berkly Judge Crawly Baron Weston and Baron Trever of high Treason and other misdemeanors for that they had trayterously and wickedly endeavoured to subvert the fundamental Laws and established Government of the Realm of England and instead thereof to introduce an arbitrary and tyrannical Government against Law which they had declared by trayterous words opinions and judgement in the point of SHIP MONY by their subscriptions and judgement given against them in the case of Mr. Hamden in the Exchequer Chamber Which Impeachments they transmitted to the Lords House praying THE LORDS to put them to answer the premises and upon their examinations and trial to give such judgement upon every of them as is agreeable to Law and Justice To avoid which judgement Sir John Finch fled the Realm and the rest of them made fines and compositions to the publike and were most of them removed from their Judges places After this the Lords themselves as Judges in Parliament passed several judgements and censures against Dr. John Pocklington for his Sunday no Sabbath and other Books and against Dr. Bray for licensing them In October 1643. The Lords fined and imprisoned Clement Walker Esq in the Tower for some scandalous words against the Lord Viscount Say a Member of he House of Peers After that the Lords alone without any Impeachment of the Commons on their privity imprisoned fined and censured one Morrice upon complaint of Sir Adam Littleton after a full hearing at which I was present for forging an Act of Parliament with four or five more of his confederates therein which was most clearly proved by Witnesses upon Oath whereby he would have defrauded Sir Adam of some Lands in Essex And at least one hundred more Commoners have been committed by THE LORDS this Parliament and fined by them for several offences Misdemeanors and Breaches of their Privileges as well as Lilburn and Overton yet none of them ever excepted against or demurred to their Jurisdiction nor did the Commons House ever yet except against them for these their proceedings as injurious or illegal but approved and applauded this their Justice Finally John Lilburn himself in his printed Pamphlet intituled Innocency and Truth justified p. 74 75. relates that on May 4. 1641. himself was accused of High Treason and brought before the Lords Barr for his life where one Littleton swore point-blank against him But he having Liberty given to speak for himself without any demurring to their Jurisdiction because we was a Commoner desired that his Witnesses might be heard to clear him was upon Mr. Andrews Oath acquitted at the Barr of the whole house And thereupon concludes I am resolved to speak well of those who have done me JUSTICE From all these punctual successive presidents impeachments and clear confessions of the Commons House themselves in many former and late Parliam 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 Iudicature without the Commons vested in them not only over Peers themselves but likewise Commoners in all extraordinary criminal cases of Treason Felony Trespass and other Misdemeanors triable only in Parliament which hath been constantly acknowledged practised submitted to in all ages without dispute much more then have they such a just judicial rightfull power in cases of breach of their own privileges of which none are or can be Judges but themselves alone as Sir Edw. Cook resolves they being the supremest Court. And to deny them such a power is to make the Highest Court of Judicature in the Realm inferiour to the Kings Bench and all other Courts of Justice who have power to judge and try the persons causes of Commoners yea to commit and fine them for contempts and breaches of their Privileges as our Law books resolve and every mans experience can testifie The Lords right of Iudicature both over Peers and Commoners in criminal causes being thus fully evicted against the falseâ— ignorant pretences of illiterate Sectaries altogether unacquainted with our Histories and Records of Parliament which they never yet read nor understood there remains nothing but to answer some Authorities Presidents and Objections produced against it These presidents in Sir Edward Cooke Sir Robert Cotton and others are of 3 Sores 1. Such as are produced by them only to prove that the Commons have a Copartnership and joynt Authority with the King and Lords in the power and right of Judicature in our Parliaments 2ly Such as are objected to evidence they have a sole power of Judicature in themselves in some cases without the K. and Lords 3ly Such as are urged to prove they have no right of Judicature in Parliament in the cases of Commoners that are capital or criminal I shall propose and answer them all in order 1. Sir Edward Cook and Sir Robert Cotton produce these presidents to prove That the Commons have a Joint inâ—erest right and share with the King and Lords in the Iudicatory or Judicial power of Parliaments which I shall propound according to their Antiquity The 1. President alleged for it is that of Adomar Bishop of Winchester elect cited by Sir Robert Cotton in his Post-humous Discourse concerning the Power of the Peers Commons in Parliament in point of Iudicature who An. 44 H. 3. as affirms he was then exiled by the Ioint Sentence of the King Lords and COMMONS as appears by the Letter sent to Pope Alexander the 4th Si Dominus Rex et Regni Majores hoc vellent meaning Adomars revocation COMMUNITAS tamen ipsius ingressum jam nullatenus sustineret The Peers subsign this answer with their names and Peter de Moâ—tfort vice totius COMMUNITATIS as Speaker or Proctor of the Commons I answer under the favour of this renowned learned Antiquary that this president is full of gross mistakes For 1. Bishop Adomar was not banished the Realm at all either by King Lords or Commons but fled out of it voluntarily for fear to avoid the Barons who purâ—iâ—ed him with forces as Mat. Paris with others relate which the Nobles and Generality of the Barons in direct terms inform this Pope in another Letter sent together with this objected Maxime cum ipse a regno expuisus non extiterit sed sponte cesserit non ausus exhibitionem justiâ—iae quae
or jurisdiction to enlarge him or to fine or imprison those who took him in Execution as of late times they have done And in this Parliament upon the petition and supplication of the Prelates and Clergy n. 32. the King by the assent and advice of the Lords enacted the Statute of 8 H. 6. c. 1. That the Clergy and their Attendants called to the Convocation by the Kings writ should have and enjoy for ever hereafter the same liberty and immunity in going coming and tarrying as the Great men and Commonalty of England called or to be called to the Kings Parliaments have used and enjoyed they complaining to the king that they and their servants coming to the Convocation were oftentimes and commonly arrested molested and inquieted Which they had no power to redress but only the King and Lords upon their complaints thereof In the Parliament of 18 H. 6. n. 13. It was shewed to the King and the Lords Spiritual Temporal that Gilbert Hore Sherif of the County of Cambridge upon the kings writ directed to him to chuse 2. knights for that shire had made no return of any knights for that County for certain reasons therein expressed Whereupon the King by advice and assent of the Lords Spiritual and Temporal not the Commons house alone as now nor yet joyntly with them ordered that a New writ for electing 2. knights for that County should be directed to him and that he should make proclamation that no person should come to the election with arms or arrayed in warlike manner in disturbance of the said election and breach of the kings peace A memorable president of the Kings and Lords Jurisdiction even in point of elections In the Parliament of 23 H. 6. n. 41. The Commons petitioned the king that by the advice and assent of the Lords Spiritual and Temporal and at their special request it might be enacted that every Member of the Lords and Commons house who should have any assault or affray made upon him being at the Parliament or going to or coming from thence might have the like remedy at Sir Thomas Parr knight had given him in this Parliament to wit upon petition of the Commons in his behalf to the King and Lords being the same as was enacted in Chedders case 11 H. 6. c. 11. before Whereunto the king answered The Statutes therefore made shall be observed In the Parliament of 31 H. 6. rot parl n. 25 26 27 28. we have this memorable famous case touching privilege of Parliament in their very Speakers own case resolved by the Lords Thomas Thorp chief Baron was chosen Speaker of the Parliament after his election and before the Parliament which was prorogued sat he was arrested and taken in execution at the sute of the Duke of York whereupon some of the Commons were sent up by the House to the king and Lords spiritual and temporal sitting in Parliament desiring that they might enjoy all their ancient and accustomed privileges in being free from arrests and propounded the case of Thomas Thorp their Speaker to them desiring his inlargement whereupon the said Lords spiritual aad temporal not intending to hurt or impeach the privilege of the Commons but equally after the course of Law to administer Justice and to have knowledge what the Law will weigh in that behalf declared to the Justices the premises and asked of them whether the said Thomas ought to be delivered from prison by force and vertue of the said privilege of Parliament or not To the which question the chief Justices in the name of all the Justices aforesaid communication and mature deliberation had among them answered and said That they ought not to answer that question for it hath not been used aforetime that the Justices should in any wise determine the privilege of this high Court of Parliament for it is so high and mighty in his nature that it may make that Law which is not and that that is Law it may make no Law and the determination and knowledge of their privilege belongeth to the Lords of the Parliament and not to the Justices But as for declaration of proceedings in the lower Courts in such cases as writs of Supersedoas of Privilege of Parliament be brought and delivered the said chief Justice said that there be many and divers Supersedeas of privileges of Parliament brought into the Courts but there is no general Supersedeas brought to furcease all Processes for if there should be it should seem that this high Court of Parliament that ministreth all Justice and equity should let the process of the common Laws and so it should put the party plainant without remedy for so much as actions at Common Law be not determined in this high Court of Parliament And if any person that is a Member of this high Court of Parliament be arrested in such cases as be not for Treason or Felony or surety of the Peace or for condemnation before the Parliament it is used that all such persons should be released of all such arrests and make an Attorney so that they may have the freedom and Liberty freely to attend upon the Parliament After which answer and Declaration it was throughly agréed assented and concluded by the Lords Spiritual and Temporal that the said Thomas according to the Law should remain still in prison for the causes abovesaid the privilege of the Parliament or that the same Sir Thomas was Speaker of the Parliament notwithstanding And that the premises should be opened and declared to them that were comen for the Commons of this land and they should be charged and commanded in the kings name that they with all goodly hast and speed proceed to the election of another Speaker The which premiâ—es for as much as they were matters of Law by the commandement of the Lords were opened and declared to the Commons by the mouth of Walter Moyle one of the kings Sergeants at Law in the presence of the Bishop of Ely accompanyed with other Lords in notable number and there it was commanded and charged to the said Commons by the said Bishop of Ely in the kings name that they should proceed to the election of another Speaker with all goodly hast and speed so that the matters for which the king called this his Parliament might be proceeded in and this Parliament take good and effectual conclusion and end Whereupon the Commons accordingly elected Thomas Charlton knight for their Speaker the next day and acquainted the Lords therewith and desired the kings approbation of their choice which was accorded unto by the king by assent of the Lords Lo here 1. the Lords Spiritual and Temporal are the sole Judges of the privilege of the very Speaker of the House of Commons who is here adjudged to remain in execution notwithstanding their petition for his enlargement 2ly The whole House of Commons could not then send for nor yet enlarge their own Speaker when imprisoned
and chief men in the Parliament together with the evident testimonie of the twelve Peers c. The reason is Because there was wont to be a cry or murmur in the Parliament for the Kings absence because his absence is hurtfull and dangerous to the whole Commonalty of the Parliament and Kingdom Neither indeed ought or may he be absent but only in the case aforesaid After which it follows The Archbishops Bishops and other chief of the Clergy ought to be summoned to come to the Parliament and also EVERY EARL and BARON and their PEERS OUGHT TO BE SUMMONED and COME TO THE PARLIAMENT c. Touching the beginning of the Parliament The Lord the King shall sit in the midst of the great bench and is bound to be present in the first and last day of Parliament And the Chancellort Treasurer and Barons of the Exchequer and Justices were wont to record the defaults made in Parliament according to the order following In the third day of the Parliament the Barons of the Cinqueports shall be called and afterwards the BARONS of England after them the EARLS Whereupon if the Barons of the Cinqueports be not come the Baronie from whence they are shall be amerced at an hundred marks and an Earl at one hundred pounds After the same manner it must be done to those who are Peers to Earls and Barons After which it relates the manner of placing the Earls Baron and Peers in Parliament Then adds The Parliament may be held and OUGHT every day to begin at one of the clock in the afternoon at which time the King is to be present at the Parliament and all the Péers of the Kingdome None of all the Peers of the Parliament may or ought to depart alone from the Parliament unless he have obtained and that in full Parliament leave from the King and all his Péers so to doe and that withall there be a remembrance kept in the Parliament roll of such Leave and Libertie granted And if any of the Peers during the term of the Parliament shall be sick or weak so as he is not able to come to the Parliament then he ought three dayes together send such as may excuse him to the Parliament or else two Peers must go and view him and if they find him sick then he may make a Proxie Of the Parliament the King is the Head the beginning and ending So this Treatise The Statute of 5 R. 2. Parl. 2. ch 4. enacts by Command of the King and Assent of the Prelates Lords and Eommons in Parliament That all and singular persons and Commonalties which from henceforth shall have the Summons of the Parliament shall come from henceforth to the Parliament in the manner as they be bound to doe and hath been accustomed within the Realm of England of old time And every person of the said Realm which from henceforth shall have the said Summons be he Archbishop Bishop Abbot Prior Duke Lord Baron Baronet Knight of the Shire Citizen of City Burgess of Burgh or other singular person or Commonalty do absent himself or come not at the said Summons except he may reasonably or honestly excuse himself to our Soveraign Lord the King he shall be amerced and otherwayes punished according as of old time hath béen used to be done within the said Realm in the said case Which relates unto and agrees expresly with that forecited out of Modus tenendi Parliamentum which took it out of this Act. If then all the Lords Peers in Parliament are bound to attend in Parliament being oft times there all called for by name and ought not to depart from it without the Kings and Houses leave under pain of Amercement and other punishment as this Statute resolves and 3 Ed. 3.19 Fitzh Coron 161. Stamford l. 3. c. 1. f. 153. Cook 4 Instit p. 15 16 17.43 28 E. 3. Nu. 1 2. 5 R. 2. n. 2. 8 H. 4. n. 55. and 31 H. 6. n. 45. Where fines were imposed on absent Lords most fully mamanifest then questionless they ought of right to sit in Parliament else it were the height of Injustice thus to fine them In the tenth year of King R. 2. this King absented himself from his Parliament then sitting at Westminster residing at Eltham about forty daies and refusing to come to the Parliament and yet demanding from them four Fifteens for maintenance of his Estate and outward Warres Whereupon the whole body of the Parliament made this answer That unless the King were present they would make therein no allowance Soon after they sent the Duke of Glocester and Bishop of Ely Commissioners to the King to Eltham who declared to him among other things in the Lords and Commons behalf how that by an old Ordinance they have an Act if the King absent himself 40 dayes not being sick but of his own mind not heeding the charge of his people nor their great pains and will not resort to the Parliament they may then lawfully return to their Houses And now sir said they you have been absent a longer time and yet refuse to come amongst us which is greatly to our discontent To which the King answered Well we do consider that our own people and Commons go about to rise against us wherefore we think we can do no better than to ask aid of our Cosen the French King and rather to submit us to him than unto our own subjects The Lords answered Sir that Counsell is not best but a way rather to bring you into danger c. By whose good perswasions the King was appeased and promised to come to the Parliament and condiscend to their Petitions and according to his appointment he came and so the Parliament proceeded which else had dissolved by the Lords departure thence in discontent aâ—d the Kings wilfull absence Ranulf de Glanvil the first writer of our Common Laws in his Prologue to his book De legibus consuetuainibus Regni Angliae used in the reign of King H. the 2. under whom he flourished and his Predecessors writes thus of the Parliamentary Councils in that age and their Members power to enact Laws Leges Anglicanas licet non scriptas leges appellari non videtur absurdum cum hoc ipsum Lex sit quod Principi placet et legis habet vigorem eas scilicet quas super dubiis in Consilio desiniendis Procerum quidem Concilio et principis accidente authoritate constat esse promulgatas And lib. 13. cap. 32. f. 110. Cum quis itaque infra assisam Dom. Reg. id est infra tempus A Dom. Rege de consilio Procerum adhoc constitutum quod quandoque majus quandoque minus censetur So as the Parliaments under this King and his Ancestors consisted only of the King and Nobles who then made and enacted Laws by the Kings royal assent without any Knights Citizens or Burgesses elected by the people of which I find no mention in the Parliamentary Councils under
And if so then questionless such who hold not by an intire Barony and are not Majores Barones by Patent or Inheritance now cannot be created such by a meer general writ of summons neither can the King by his general writ create or make them such against this antient Law and usage ever since And the Earls Lords and Great honorary Barons who excluded all such from sitting in Parliament with them as Barons and their Peers then may much more exclude and refuse to admit such into their house or to sit with them if summoned now because their dignity honor power would suffer much diminution thereby and the King might by writ at any time call so many to their House as might overtop overâ—ote and alter their very Constitution as an House of Peers I shall close up this point of the Lords sole right to sit in Parliament with one or two memorable presidents In the 7. year of King Edward 2. as Walsingham stories in quindena Paschae per Regis brevia citatae sunt generaliter omnes Parliamentales personae pro Parliamento teuendo Londoniis Sed multis Proceribus praetendentes impedimenti causas nihil hâ—c vice factum suâ—t So Anno 1316. King Edward in the 9th year of his reign celebravit Concilium apud Clarindon sed Magnates noluerunt interesse Whereupon nothing was there effected The Lords presence being held then so necessary that by reason of the absence of divers of them upon some real or pretended impediments though all legally summoned by the Kings writs nothing was done or concluded by those who met who held themselves no compleat or legal Parliament without them Whereas in the Parliament of 5 E. 2. some of the Judges and Assistants departing from the Lords and divers Knights Citizens and Burgesses from the Commons house without license yet the Lords continuing all together and making Ordinances for regulating the Kings house and Revenues the Parliament still continued and these special writs were sent to recall the Judges and Lords Assistants quod redeant exinde et sine licentia nostra speciali durante Parliamento praedicto non recedatis Et hoc sicut indignationem nostram vitare volueritis nullo modo omittaris Teste Rege apud Haddely 12 Septemb. PER CONSILIUM And this general writ was sent to the Sheriff of Yorkeshire and all other Sheriffs of England to summon all the Knights Citizens and Burgesses in their several Counties to return thither or else to elect other fit persons in their places Praecipimus tibi firmiter injungentes quod illos Milites Cives Burgenses de Balliva tua quos nuper ad praesens Parliamentum nostrum apud London inchoatum de mandato nostro venire fecisti et qui ab eodem Parliamento certis de causis recesserunt quod redeant exinde c. vel alios ad hoc idoneos loco ipsorum SI AD HOC VACARE NON POSSUNT usque ad Westmonasterium ad dictum Parliamentum quod ibidem duximus continuandum c. proxime futur ad ultimum cum sufficienti potestate Comitatus tui Civitatum Burgorum praedictororum ad consentiendum hiis quae tunc ibidem contigerint ordinari c. Teste Rege apud London xi die Octobris This Parliament being thus continued Claus 5 E. 2. m. 25. Special license was granted to some LORDS to goe home who made Proxies to other Lords to supply their places by these words Deputamus in loco nostro in Parliamento and this in the Writ of Prorogation This I hope will suffice to convince all Levellers and Gainsayers of the LORDS undoubted antient Hereditary just Right and Title to sit vote in all ENGLISH PARLIAMENTS though not elected by the people SECTION II. Wherein the Lords House sole Right of Judicature in Parliament without the Commons is fully cleared by Presidents Histories Records in all ages and undeniable Reasons and that both in Criminal Civil Ecclesiastical Causes of all sorts as well in cases of Commoners and Clergymen as Temporal Peers persons of the highest degree proper for Parliament IT is the General confession resolution assertion both of Lawyers Law-books the Parliament and Statute of 31 H. 8. c. 10. and all who have written of our Parliaments That the Parliament of England is the antientest honourablest highest Court and Supremest Judicature in the Realm to whose Judicature all other Courts Persons Subjects of the Realm are subject accountable for all Injuries Oppressions Crimes Wrongs Corruptions Errors Abuses Grievances Misdemeanors Treasons Contempts Frauds false Judgments and matters of publike or privat concernment not properly triable remediable or punishable in other inferior Courts of Justice and that Court to whom all Appeals concerning Misproceedings Errors or Injustice in other Courts or places ought to be made and from whose Injustice and Sentence there is no appeal but only to another Parliament as in the case of General Councils as Divines assert there is no appeal but to another general Council in Ecclesiastical affairs concerning the Universal Church or matters of Faith This being an unquestionable Principle and Truth the sole Question will be in what House or Persons in Parliament this Supreme Judicatory or judicial power resides Whether in the King alonâ— or Lords alone or King and Lords jointly or in the House of Commons alone never made a question â—il now by Lilburn and Overton or in the King and House of Peers not separate from but joyntly with the Commons House And for my part I conceive it resides wholly and solely in the King and House of Lords not in the House of Commons which hath no part nor share therein singly considered in it self nor yet joyntly with the King and Lords but only in some special cases and proceedings as when and where the King and Lords voluntarily require their concurrence or where the judgement and proceedings in Parliament are by way of Bill or Act of Parliament or when a judgement passed or confirmed by Bill or Act to which the Commons consent was requisite is to be altered or reversed but in no cases else that I can find To make this ouâ— beyond contradiction it must be necessarily granted by all and cannot be gainsaid or disproved by any that this Supreme power of Judicature hath been vested in our Great Councils and Parliaments even from their beginning and original institution it being the antientest as well as highest and honourablest of all other Courts That it had this Soveraign Jurisdiction vested in and exercised by it both under our British Saxon Danish and Norman Kings I have elsewhere evidenced and shall anon make good by undeniable presidents Now the Great Parliamentary Councils under them consisted only of the King the Ecclesiastical and Temporal Lords Earls Barons Nobles without any Commons House or Knights of Shires Citizens or Burgesses elected by the people as I have already touched and manifested more fully in other Treatises yea
constricti usque ad lachtymarum compuncti sunt effusionem Rex autem confessus est in veritate quod compulsus ab Episcopo Wintoniensi et Petro de Rivallis aliis Consiliariis suis jussit figillum suum apponi in quibusdam literis sibi praesentatis sed tenorem eorum se nunquam audisse cum juramento affirmavit Ad hoc responâ—um Archiepiscopus dixit Scrutamini Rex conscientiam vestram quia omnes illi qui literas illas mitti procuraverunt et hujus proditionis conscii fuerunt rei sunt de morte Marescalli ac si illum propriis manibus occidissent Tunc Rex HABITO CONSILIO fecit vocari per literas Episcopum Wintoniensâ—m Petrum de Rivallis Stephanum de Segrave et Robertum de Passeleve ut venirent ad festum Sancti Johannis ratiocinium reddituri de thesauris suis receptis pariter expensis sed et de sigillo suo quod male tractaverant ipso penitus ignorante mandavit ut tunc venirent RESPONSURI ET JURI PARITURI Sed illi proprias conscientias habentes suspectas in omnibus ex una parte Regem ex altera fratres et amicos metuebant Marescalli cujus necem procurasse videbantur Unde ad pacem Ecclesiae confugients Episcopus et Petrus de Rivallis in Ecclesia Cathedrali apud Wintoniam latitabant a conspectu hominum sese penitus subtrahentes Stephanus vero de Segrave in Ecclesia Sanctae Mariae in Abbatia Canonicorum apud Legecestriam delituit et qui prius a clericatu ad militiam per arrogantiam confugerat ad clericatus officium reversus coronam quam reliquerat inconsulto Episcopo revocavit Robertus quoque Passeleue ad latibulum divertit incognitum c. Sed revera ad Novum templum â—e infirmum simulans in quodam secreto celatus cellario laâ—itabat more tectus leporino Tandem Aedmundus Cant. Episcopus impetravit a Rege ut sub salvo conductu ipsius et Episcoporum possunt ad diem certum coram illo â—enite ut omnis in regno dissentionis occasio sopiretur Statuit igitur illis diem Rex pridie Idus Julii apud Westmonasterium ubi sub protectione Archiepiscopi et Episcoporum ad Regis praesentiam sunt producti Petrus de Rivallis primus in causam vocatuâ— apparuit coram Rege in habitu clericali cum tonsura et lata corona Regemâ—ue reverenter salutavit cum Iusticiariis suâ—s in Banco sedentem Quam Rex torvo respiciens oculo O PRODITOR inquit per iniquum consilium tuum sigillum meum ignorans apposui literis de proditione Comitis Mareschalli Per tuum etiam pravum consilium ipsum et alios de regno meo homines naturales et eorum animos à me pariter amorem averti Per pravum etiam consilium tuum et complicum tuorum guerram contra illos movi in jacturam irrestauribilem et regni opprobrium per quam guerram thesaurum meum et vitam multorum illustrium simul et honorem meum amisi lamentabiliter Exigit igitur Rex praeterea ratiocinium de thesauro suo et custodia puerorum nobilium et escheatarum cum aliis proventibus multis quae ad Coronam spectabant Cumque haec et alia multa Rex ab eo sub proditionis nomine exigisset nihil omnino de objectis sibi criminibus negavit sed coram Rege in terram corruens per haec verba ejus misericordiam imploravit Domine Rex inquit nutritus sum a vobis et in bonis temporalibus dives factus ne confundes hominem quem creasti sed concede saâ—tem tempus deliberandi ut de rebus exactis competenter vobis valeam reddere rationem Cui Rex Mittam te iu Turrim Londinensem ut ibi deliberes donec mihi satisfacias praevia ratione Ad haec Petrus Domine Clericus sum nec debeo incarcerari vel sub Laicorum custodia deputari Respondit Rex Te ut laicum hactenus gessisti a te agitur ut Laico cui meum commisi thesaurum exigo Veruntamen eâ—â—e pro sens est Archiepiscopus qui si pro te fidiâ—ubere voluerit tradam te illi ut miâ—i â—â—tisfaciâ—t de exactionibus supradictis Ad quod cum siluiâ—seâ— Archiepiscopus misit Rex praedictum Petrum in Turrim memoratam accipieâ—s in manus suas omnes laioas possessiones ejus quia sub habitu clericali lâ—ica erat induius gestans anelaâ—ium ad lumbare quod clenicum non decebat Et tunc Pâ—tâ—us fleâ—it amare scilicet ingredieâ—s nâ— ioulum â— ducendus ad turrim supradictam Fuit autem in ea die Jovis et sâ—quenti die Veneris Et tunc ab Archiepiscopo liberatus apud Wintoniam perductus est et in ecclesia dimissus cathedrali Apparuit autem eadem die in Regis praesentia Stephaphanus de Segrave veniens sub protectione Archiepiscopi de rebus sibi impositis resâ—onsuâ—uâ— Qui cum staret in judicio Juri pariturus increpavit eum Rex sub nomine nequissimi proditoris de domnibus articulis de quibus increpaveâ—at Petrum de Rivallis hoc etiam adâ—iciens quod consilium dederat et ut Hubertum de Burgo ab officiâ— Justiciarii amoveret incarceraret patibulo suspenderet Nobilâ—s de regno exilio relegaret Cumque haec alia multa ei imposuisset slagitia exegit ab eo ratiocium de ossicio Justiciarii quod sub eo ministraverat post Hubertum de Burgo de rebus receptis pariter et â—xpensis Super his autem Archiepiscopus et Episcopi impetraverunt inducias a Rege usque ad festum S. Michaelis ut deliberandi tempus haberet De pravis quoque consiliis sibi imputatis alios altiores eo medios scilicet intâ—r Regem et eum quibus necesse habuit immediate respondere nepote Wâ—lierum Carleolensem Petrum de Rivalliâ— non me redarguat Et sic de aliis umbonem fâ—oiens recessit in alios crimen retorquendo Et sic absdondit se iterum Robertus Passeleue The King made Hugh de Pateshulle an honest and faithfull man chief Justice of England much against his will in Passeleues place And at the Archbishops request in the same Parliament restored to Gilbert Brother and heir to murdered Richard Earl Marshal all his inheritance both in England and Ireland received his homage knighted and gave him the rod of his Marshals Court as the manner is to hold that office as well and freely as his ancestors enjoyed it And so this Civil warr and Combustion between the King and his Nobles was fully reconciled I have transcribed this History and these Parliamentary proceedings at large out of Matthew Paris First to manifest the Gallantry Courage Zeal Vigilancy Unanimity of our Nobles Lords Barons and Prelates in that age in opposing reprehending the King himself to his face and threatning to depose and excommunicate him both in and out of Parliament for entertaining foreigners and
ill counsellors about him neglecting hating banishing his own Nobles and natural Subjects as Traytors without any just cause or legal trial and subverting confounding their Lawes Liberties Justice c. 2ly To manifest the proceedings impeachments in these Parliaments against the Earls and Nobles refusing to appear at these Parliaments upon the Kings these successive Writs of Summons his outlawing them of high Treason and spoiling burning seising their houses Lands thereupon being adjudged by the Lords in Parliament to be illegal and afterwards reversed as unjust and against the Law Claus 18. H. 3. m. 19. 3ly To manifest that the Lords in Parliament would not act any thing in the absence of these eminent Lords refusing to appear 4ly To evidence the Sentence and Justice of the King and Lords against these ill Counsellors Aliens and Traytors to the Publique whom they caused to be removed from the King Court Kingdom put from their publike Trusts and Offices called to an account publikely arraigned before the King himself and his Justices by whom they were imprisoned their lands confiscated and better Counsellors of State and Judges put into their places Anno 1240. Accusatus est graviter Comes Cantiae Hubertus de Burgo CORAM REGE ET CURIA TOTA London ubi post multâ—s disceptationes ut iraâ—undia Regis quae immoderate nimis conâ—â—â— ipsum excanduerat quiesceret ADJUDICAâ—UM EST ut quatuor Castra sua Charissima scilicet Blancum Castrum Grosmunt Scenefrithz Haetfeild Domino Regiâ— resignaret ut caetera sibi cum Regis benevolentia in pace remanerent Anno 1258. The Nobles complained in Parliamnnt of the Kings advancing his half Brothers who were aliens swaying all things and impoverishing the Realm and of their intollerable pride insolency and injuries and the Earl of Leicester particularly complained to the Parliament of William de Valentia non tamâ—n Regi sed universitati praecordialiter est conquestus exigens instanter sibi justitiam adhiberi The same year the Great men and Nobles of the Land Videntes Regnum undique desolatum tum exactionibus tallagiis tam Curiae Romanae quam Regis quam etiam alienigenarum praecipue Pictavensium elatione praesumptuosa fivore regio in regno nimium in sublimi provecta tantas in Anglia Dominationes sibi usurpantium magisteria â—ost Pentecosten apud Oxon. COLLOQUIUM GENERALE CELEBRAVERUNT being summoned to this Parliament by the Kings Writ super hiis necnon status regni meliorationâ— efficaciter exquisite tractaturi Quo non sine armis equis electissimis muniti venerunt ut si Rex alienigenae suiâ— provisionibus statutis sponte contemnerent assentire vigore opposito cogerentur aut ipsi alienigeni universaliter sine morae regnum Angliae poenitus evacuarent Quas quidem provisiones Oxon. stat necnon ET MAGNAM CHARTAM TAM DE LIBERTATIBUS ET DE FORESTA tandem Domino Rege ad suorum PROCERUM observantiam statutorum inclinato per queÌ„dam de suis militibus tactis sacrosanctis jurameÌ„tum praestante 24 prudentium virorum Nationis Anglicanae quos ad Regni gubernationem sub eodem duxerint inter se eligendos consilio se commendavit considerationâ— His igitur pâ—ractis fidelitatem Regi regni ET AD CONSIDERATIONEM SUORUM PARIUM STARE omnes quotquot in regno commorare vellent fecerunt jurare The Nobles in this Parliament required that all the Poictovines might surrender up all the Castles they held in England into the Kings hands Whereupon they peremptorily swore by the passion and wounds of Christ that they would never doe it whiles they breathed Whereupon the Earl of Leicester said to William of Vairencia the most insolent of them all That he should either surrender up the Castles he held of the Kings without delay VEL CAPUT AMITTERET on he should lose his head Similiter ALII COMITES ET BARONES DICEBANT etiam constructissime assertione consistentes The Poictovines being very much terrified with these words not knowing what to doe and fearing to fly to any Castle lest they should there be besieged and soon taken or starved by the Lords fled secretly and speedily from the Parliament to Winchester not sparing their horses sides and setting spies upon hills and Towers to observe whether the Barons pursued them who hearing of their flight commanding all their followers to arm themselves and dissolving the Parliament without adjourning it to any certain day pursued them to Winchester where the King and Nobles holding another PARLIAMENT the Poictovines JUDIDIUM EXPECTARE NOLENTES nec ausi exhibitionem JUSTITIAE quae singulis secundum juramentum REGIS PROCERUM debebatur expestare being the sole judges of them in Parliam for their exorbitant offences they presently fled out of the Realm beyond the Sea to avoid their sentence Hereupon Significatum est literatorie ad multos etiam quos praedicti Pictavienses impudentur offenderant ut â—nerelam super hoc reponeâ—res ostenderent Maguatibus Regni daâ—a sibi a dictis Regis fratribus illata eas querelas dilucidantes constanter moras sequerentur ut sibi omnia secundum quod jus dictaret restituerentur Sed quia instabat tempus messium considerantes simultatem et instantes labores forte inutiles sequi renuerunt donec majorem cernerent opportunitatem The Lords in Parliament being willing to award them damages and reparations against the Kings own Brothers in Law upon complaint and clear proof of the injuries and damages they sustained by them Anno 1260. There falling out a great difference between King Henry the 3. and Prince Edward his Son Simon Earl of Leicester and other Nobles thereupon Convocato in praesentia Regis apud sanctum Paulum BARONAGIO habitoque prius tractatâ— de Eadwardo super injuriis Regi ut dicebatur illatis paratus est idem Eadwardus se omnium objectorum probare immunem et ad duorum Regum scil Patris sui et Avunculi provisionem in emendatione facienda se dare tractabilem dicens Omnes alios Barones et Comites sibi de jure non esse Pares nec suas in eum exercere discussiones Unde dâ—cuâ—a hinc inde veritate omniumque relatorum falsitate probata pacificato Regi concordatus est filius multiplicatis de jure inimicorum confusionibus Concordato itaque Eadwardo Regi et Reginae et aliis amicis mox querela subsequitur de Comite Leicestriae Simoâ—e super pluribus injuriis tam citra mare quam ultra contra Regem ut dicebatur perpetratis Praefixo igitur die ad respondendum se de objectis expurgandum idem Comes ad dictum diem licet breviorem paratus est quantotiens petitis satisfacere et ad discutiendam super oppositis veritatem omnium transmarinorum quam cismarinorum arbitrio obtemperare exceptis quinque tantum minutis tam suae quam Eadwardi discordiae seminatoribus Qâ—o audito Comes Gloverniae cum
Lords only sit upon the Bench and that covered and in their Parliamentary Robes the badges of Judicature but the Commons stand and that bare at the Bar without any robes at all the Lords only swear examine the witnesses and judge of their testimony the Commons only produce the witnesses presse and manage the evidence and when the buâ—nesse is fully heard the Lords only debate the cause among themselves and give the final Sentence Judgement without the Commons though sometimes in their presence and that both in cases of Commoners and Peers Therefore the Lords and House of Peers are sole Judges in Parliament not the Commons 9ly The Commons themselves in all ages since admitted into our Parliaments have always presented their Petitions in Parliament to the King and Lords alone for redress of all Grievances wrongs misdemeanours abuses whatsoever publike or private criminal or civil ecclesiastical marine or military And the Lords House alone have in all antient Parlaments appointed particular persons of their House to receive al Petitions Triers of them to hear and answer them by their advice and the kings assent when necessary which Triers of Petitions had power given to call the Lord Chancellor Treasurer Chamberlain Judges kings Servants and others to this assistance prescribing where when their Petitions should be presented examined redressed at all our Parliament Rolls aâ—est and Sir Edward Cook himself relates There being few or no Petitions at all presented by any to the Commons before â—â— H. 7. c. 19. 4 H. 7. c. 6. These Petitions then presented to them and all ever since with all in this present Parliament being only to this end that they upon the examination of the truth matters complaints grievances mentioned in them might transmit and represent them in the name of the Commons House to the Lords House for to give full redress relief and judgement on them to the Petitioners not for the Commons themselves to judge finally determine them or give relief upon them without the Lords as all the transmissions of private and publike Petitions by the Commons to the Lords heretofore and in this Parliment in the cases of Dr. Layton Dr. Bastwick Mr. Burton Mr. Walker my self and of Lilburns own Petition against his censure attest Therefore the Judicature of our Parliaments must wholy rest and intirely reside in the Lords House as well in all Criminal as civil cases both of Commoners and Lords 10ly The surest badge and highest evidence of the right and exercise of Juridical and Judicial Authority in Parliament is the examination affirmation control repeal nulling adjudging and finall determining all Errors in Judgements Decrees Proceedings all Misprisions Abuses Corruptions grievances whatsoever of Judges Justices in all other Courts of Justice Civil Ecclesiastical Marine or military Now the Lords-alone in Parliament upon Wtits of Error Appeals Complaints Petitions c examine confirm repeal null redresse and finally determine all Errors misprisions in Judgements Decrees Proceedings and all Abuses Corruptions Grievances whatsoever in all other Courts of Justice whether Civil as the Kings Bench Chancery Exchequer Chamber Common Pleas Exchequer Court of Wards Courts of Requests Stanneries c. or Ecclesiastical as the High Commission Archbishops Consistories the Convocation and the Admiralty Court Marshal Council Table Star-chamber and in former Parliaments as is evident by sundry presidents in former ages and in this present Parliament of King CHARLS in the cases of Dr. Layton Dr. Bastwick Mr. Burton Lilburn himself Mr. Grafton Alderman Chambers Mr. Rolls Sir Rob Howard Alderman Langham and Limry Mr. Johns and le Gay with sundry others But more especially in cases of Writs of Error brought in Parliament by Peers or Commoners upon any Erronious judgements touching their real or personal estates lives limbs liberties persons upon Indictments or Attainders In all which writs the King and Lords only are sole judges without the Commoners and the returns of the proceedings upon such Writs are only before the Lords in the Vpper House secundum legem et consuetudinem Parliaments So Sir Edward Cook himself expresly resolves in direct terms in his 4 Institutes p. 21 22 23. And 22 E. 3.3 Fitz Error 8 Br. 3.1 H. 7.20 21 22. Br. Error 137. Old Book of Entries p. 302.16 E. 3. Fitz. Brev. 651.21 E. 3.46 Br. Error 65.29 E. 3.24.39 Ass 18.42 Ass 22.7 H. 6.28 8 H. 5. Fitz. Error 88.19 H. 6.12.35 H. 6.19.37 H. 6.16.11 H. 4.65.9 E. 4.3.2 R. 3.22.37 H. 8.14 15 25. Dyer f. 62.196 201 315 375. intimate as much This is most clear by the Writs of Error Judgements and Proceedings on them in the Parliament House before and by the Lords alone mentioned in the Parliament Rolls themselves as 14 E. 1. roâ— Parl. 1.4 E. 3. n. 13 14.21 E. 3. n. 65 66.28 E. 3. n. 8. to 14.50 E. 3. n. 38.1 R. 2. n. 28 29 105.2 R. 2. n. 31 32 33 37 38. Parl. 2. and Parl. 1. n. 21. to 27.3 R. 2. n. 19.20 21 22.6 R. 2. n. 17.7 R. 2. n. 20 21.8 R. 2. n. 13 14 15 16.13 R. 2. n. 16 17 15 R. 2. n. 22 23 24.16 R. 2. n. 17 18.17 R. 2. n. 17.19 â—8 R. 2. n. 11 12 13.20 R. 2. n. â—6 21 R. 2. n. 25 55. to 66 71.1 H. 4. n. 91 92.2 H. 4. n. 38 39 40.4 H. 4. n. 26.5 H. 4. n. 40.6 H. 4. n. 31.1 H. 5. n. 19.2 H. 5. n. 13 14.3 H. 5. n. 19. with sundry Writs of Error in succeeding Parliaments and this now sitting adjudged determined by the King and Lords alone without the privity or interposition of the Commons A truth so clear that Lilburn himself in his Argument against the Lords jurisdiction confesseth iâ— If then the Lords House be the soâ—e Judges in all Writs of Error and Appeals from all other Courts of Justice concerning the Lands Tenements Goods Estates Liberties Members Lines Attainders of all English Freeholders and Commoners whatsoever notwithstanding the Statute of Magna Charta ch 29. No Freeman shall be â—aken or imprisoned c. neither will we pass upon him nor condemn him but by the lawfull judgement of his Peers c. the grand and principal objection against the Lords Judicature in Cases of Commoners then by the self same reason they are their lawfull Judges and may regally proceed against them in all other criminal or Civil causes especially in cases of breach of their own Privileges wherein they are the sole and only Judges since no other Court can judge of nor yet punish them as Sir Ed. Cook resolves being properly triable only in Paâ—liament as contempt against all other Courts are punishable and triable by themselves alone the present cases of Lilburne and Overton Now that they are and alwayes have been so de facto unless by way of Bill of Attainder or in such extraordinary cases when their concurrence hath been desired even in criminal cases misdemeanors and offences of Commons as well as Peers I
diu consultati sed inconsulti Equidem meum est posse et velle conferre gratiam cui voluero miserebor Nec propter vos amplius quam pro cane Quis in gratiam meam se submisit repulsam passus est Veruntamen vestrum judicium in scriptura redigatur et pro lege amodo teneatur Proinde dictus miles ad carcerem ducebatur ne impunitas armareâ— audaciam et rigor caeteris timorem incuteret contemnendi Et post paucos dies elaborantibus multis nobilioâ—ibus regni et ostendentibus se 30 suis paribus cinctis gladiis corpus pro corpore et bona pro bonis una in solidum quoquo die Rex eum vocaverit nec adesset liberatus est et per regem cunctis facultatibus suis restitutus So this Historian which compared with the Record infallibly proves that this resolution was given by the Earls Barons Lords and Judges advice who were the only aliorum de Concilio as assistants to the Lords then in all matters of Law as now they are not the Commons of which there is no mention in the records or this Historian that they were parties to it And this is likewise evident by the case of Margery the Wife of Thomas Weyland an abjured Judge in the Parliament of 19 E. 1. Cooks 1. Institutes f. 133. n. Where the Barons of the Exchequer and Justices of the Kings Courts were called to advise and assist the King and his Council of Lords in Parliament in a difficulty of Law therein to be resolved by their advice And therfore it follows that the LORDS ONLY IN THAT AGE were the Judges even of Commoners cases Thirdly Admit the Commons were included yet it proves only a right of advising and delivering their opinions with the Lords when required by the King not of judging or pronouncing sentence Fourthly Sir Edward Cook citing this president to prove That both Houses together have power of judicature must grant that even in 33 E. 1. there were two distinct Houses of Parliament who upon special occasions as now at conferences c. met and advised together and therefore the division of the Houses was before Edward the third his reign and very probable as antient as the summoning of Knights Citizens and Burgesses to the Parliament which some make as antient as King Henry the first or King Henry the 2. others not before King Henry the third in the 49 year his reign Father to King Edward the first So as this president makes quite against the Levellers and Lilburnians designs and opinions The 3 and 4. Presidents are those of Hugh Audley his Wife Claus 12 E. 2. m. 5. of Gaverston and the two Spencers Exiles 15 E. 2. forecited wherein the Commons gave their assents to the attainders and exiles of Gaverston and the Spencers and to the reversal of them But this I have already proved to be only by way of Bills not judicature by the legislative not judicial power of Parliament and that they were judicially condemned only by the Lords therefore these are nothing to the purpose and against the Objectors The 5. and 6. are the depositions of King Ed. the 2. and Richard the 2. for their mis-government wherin the Commons had a joynt vote and concurrence with the Lords which I shall hereafter answer in the supplement p. 429. to 460. The seventh President is that of Eliz. Burgh Widow in the Parliament of 1 E. 3. rot Parl. n. 11. who complained by Petition to the King that in the reign of King Edward the 2. she was by his Writ commanded to come unto him to Yorke and there by Hugh Spencer the younger and Robert Baldock and William Cliff his instruments inforced by duresse to enter into an Obligation to this effect that if she received any who were contrary to the King or maried any man without the Kings consent or if she gave any lands or tenements which she held in fee or in dower to any man living without the Kings license that for any of these she should forfeit all her Lands Tenements Goods and Chattels to the King as appeared by the transcript of the Bond annexed to her Bill whereupon she prayed Grace and remedy against this duresse and acquittance of our Lord the King from this Obligation Hereupon a Writ was sent to the Clerk of the Privy Seal in whose custody the Obligation was to bring it without delay Coram Concilio nostro in Parliamento ad faciendum inde ulteriut quod per idem Concilium nostrum contige it ordinari which being brought and delivered accordingly the 5 of March and deliberately read in full Parliament and agreeing with the transcript annexed to her Petition in all things Pur ceo que avys est as Archievesques Evesques Counts BARONS auires Grandes et a TOVTELA COMMONALTIE de la terre que lo dit escrit est fait contre ley de la terre enconter tout manere de reason si fuist le dit escrit PER AGARD DEL PARLIAMENT dampne illeoques livera ala dit Elizabeth I answer 1. That this judgement was given only in a civil case touching an Obligation made by duress not in a criminal 2ly That this Petition was directed only to the King and his Council not to the Commons in Parliament and the businesse heard before them 3ly That this being a Common case there being then many Petitions and complaints that Parliament of bonds of this nature the Commons joyning with the King and Lords in this judgement of Parliament in her case was only by way of Bill not in an ordinary way of judgement they exhibiting passing a Bill for that purpose as well as a Petition as is clear by the words of the Roll and by the printed Statute of 1 E. 3. c. 3. That fines sales and gifts of land and recognizances of debt made by force and duress to this Sir Hugh Spencer Robert Baldocke c. or to any of them be defeated And Parl. 2. ch 15. Whereas many of the Realm in the time of the Kings Father that now is by means of his false and evil Counsellors have been excited by divers to bind themselves to come to the K. with force and arms whensoever they should be sent for upon pain of life and limb and to forfeit all that ever they might forfeit by vertue of which writings divers of his land have been often destroyed The King considering that such writings were made to the Kings dishonour sithence that every man is bound to doe to the King as to his Liege Lord all that pertaineth to him without any manner of writing will that from henceforth no such writing be made And that such as be made by the sight of the Chancellor and Treasurer shall be shewed to the King and the K. shall cause all such as be made against right reason to be cancelled So that this main president meerly falls to the ground being
House it self without any report at all of their proceedings to the House authorizing Committees to secure imprison close imprison cashire banish condemn execute many persons sequester confiscate sell dispose their Inheritances Offices Lands Tenements Benefices real and personal estates to deprive them of their callings professions to search and break up their houses by Soldiers and others without any legal sworn Officers day and night to seize their Letters Papers Horses Arms Plate Money yea debts in other mens hands at pleasure to indemnifie and stay their legal actions sutes Judgements at Law and null their executions at their pleasures yea to commit them till they released all sutes actions Judgements and paid costs and damages to those they justly sued and recovered against to adde affliction to affliction and cruelty oppression to injustice These are the bitter fruits of Commons usurped judicature whereof there are thousands of most sad presidents which may hereafter be objected to prove the sole Power of Judicature to reside of right not in the K. or House of Lords but in the Commons House alone and every of their Committees especially for Examinations Plundered Ministers Sequestrations Indempnity Haberdashers and Goldsmiths Halls Privileges sales of Delinquents the Kings Queens Princes Lands and Estates Excise the Army Navy and the like yea in their new created High Courts of Justice who have acted as absolute arbitrary unlimited lawlesse Courts of justice in the highest degree to the subversion destruction of the antient Liberties Freeholds Properties Great Charters and fundamental Laws of the Nation in general and of thousands of the highest lowest degree of English Freemen in particular with as much ground of reason Warrant from the many late Presidents of this Nature as these here objected to prove a soâ—e right of â—udicature in the Commons House in cases of undue elections retorns misdemeanors privileges relating to their Members and their seruants Which strang exorbitant Presidents and Proceedings if they should be made Patterns for future Parliaments and Committees I shall desire all sober minded men to consider of the dangerous consequences of them thus notably expressed by the late King in his Answer concerning the Ordinance for imposing and levying the 20th part of mens estutes 29 November 1642. After this Ordinance and Declaration t is not in any sober mans power to believe himself worth any thing or that there is such a thing as Law Liberty Property left in England under the jurisdiction of these men and the same power that robs them now of the twentieth part of their estates hath by that but made a claim and entituled it self to the other nineteen whne it shall be thought fit to hasten the general ruine Sure if the minds of all men be not stubbornly prepared for servitude they will look on this Ordinance as the greatest prodigie of Arbitrary power and tyranny that any age hath brought forth in any Kingdom other grievances and the greatest have been conceived intollerable rather by the logick and consequence than by the pressure it self this at once sweeps away all that the wisdom and justice of Parliaments have provided for them Is their property in their estates so carefully looked to by their ancestors and so amply established by Us against any possibility of Invasion from the Crown which makes the meanest Subject as much a Lord of his own as the greatest Peer to be valued or considered here is a twentieth part of every mans estate or so much more as four men will please to call the twentieth part taken away at once and yet a power left to take a twentieth still of that which remains and this to be levied by such circumstances of severity as no Act of Parliament ever consented too Is their liberty which distinguishes subjects from slaves and in which this freeborn Nation hath the advantage of all Christendom dear to them they shall not only be imprisoned in such places of this kingdom a latitude of judgement no Court can challenge to it self in any cases but for so long time as the Committee of the House of Commons for Examination shall appoint and Order the House of Commons it self having never assumed or in the least degree pretended to a power of Judicature having no more authority to administer an Oath the only way to discover and find out the truth of facts than to cut off the heads of any our Subjects and this Committee being so far from being a part of the Parliament that it is destructive to the whole by usurping to it self all the power of King Lords and Commons All who know any thing of Parliament know that a Committee of either House ought not by Law to publish their own results neither are their conclusions of any force without the confirmation of the House which hath the same power of controling them as if the matter had never been debated but that any Committee should be so contracted as this of examination a stile no Committee ever bore before this Parliament as to exclude the Members of the House who are equally trusted by their Country from being present at the Counsels is so monstrous to the privileges of Parliament that it is no more in the power of any man to give up that freedom than of himself to order that from that time the place for which he serves shall never more send a Knight or Burgesse to the Parliament and in truth is no lesse than to alter the whole frame of government to pull up Parliaments by the roots and to commit the lives liberties and estates of all the people of England to the arbitrary power of a few unqualified persons who shall dispose thereof according to their discretion without account to any rule or authority whatsoever Are their friends their wives and children the greatest blessings of peace and comforts of life pretious to them would their penury and imprisonments be lesse grievous by those cordials they shall be divorced from them banished and shall no longer remain within the Cities of London and Westminster the Suburbs and the Counties adjacent and how far those adjacent Counties shall extend no man knows The 3 sort of Presidents and Objections are such as Lilburn and Overton insist on to prove That the King and Lords have no power at all to judge or censure Commoners in our Parliament The only Record they insist on is the Lords own Protestation in 4 E. 3. n. 2. 6. in the case of Sir Simon Bareford which because I have already fully answered p. 323 324 325. and cleared by sundry subsequent presidents and there being no one president in any Parliament since to contradict it I shall wholly pretermit and proceed to their objections which are only two The first and principall objections whereon they most insist and rely is the Statute of Magna Charta chap. 29. That no Free-man shall be imprisoned outlawed exiled or any other may destroyed Nor we shall not passe
upon him nor condemn him but by the lawfull judgement of his Peers or by the Law of the Land Whence thus they argue The Lords in Parliament are not Commoners Peers but the Commons only therefore they cannot be judged in Parliament by the Lords but by the Commons alone and if Peers there judge Commoners it is a tyranny and usurpation even against Magna Charta it self though it be in case of privilege To take away this grand seeming Objection and give it a satisfactory answer I say First in general that there is scarce one Parliament ever since Magna Charta was first confirmed but the Lords have sentenced and given Judgement against some Commoners capitally or penally in body purse or both without the Commons and did so doubtlesse before Magna Charta was made as I have already manifested yet never did the Commons in any one of those Parliaments till this present complain of it as a violation of Magna Charta or a tyrannical usurpation as Lilburn and Overton stile it but acknowledged ir as a just right in the Lords even in 3 Caroli it self when the Petition of Right was passed in the Lords Judgement and Sentence against Dr Manwaring a Commoner impeached by the Commons in Parliament And therfore for this Ignoramus alone against the judgment of the Commons in Parl. in all ages to averr this a breach of Magna Charta for imprisoning and sining him for the highest affront and breach of privilege ever offered to any Parl. is the extremity of ignorance malice singularity Secondly I answer That the Statute of Magna Charta extendeth not to nor was ever intended of the high Court of Parliaments Judgements Proceedings but only to and of the Proceedings Judgements in the Kings great Courts of Justice at Westminster Hall the Exchequer his Privy Council and other inferior Courts held before Judges Justices of Assise and other Officers as is evident by comparing this objected Chapter with c. 11 12 13 14 18 28 30 34 37. by the Statutes of 25 E. 3. Stat. 5. c. 4. 28 E. 3. c. 3. 37 E. 3. c. 18. 38 E. 3. c. 9. 42 E. 3. c. 2. 17 R. 2. c. 6. and the Petition of Right it self 3. Caroli which so expound it there being never any complaint against the Parliament it self or House of Peers in any age for breach of Magna Charta in censuring or imprisoning Commoners till now Therefore this misapplying of this Law to the Parl. and House of Peers is a gross oversight Thirdly the very literal sence of this Law is much mistaken by the Objectors The main scope whereof is this That no man should be deprived of his Freehold Liberties Limbs life or outlawed exiled or otherwise destroyed without legal process in due form of Law in Courts of Justice not by meer force violence injustice arbitrary and tyrannical power or martial Law nor being brought to his legal trial or answer And that none should pass upon them in any trials for freehold or life but only English Freemen Now in respect of Freedom any every Freeman of England is a Peer to another Freeman quatenus such a one within this Law though of an higher degree in point of honour dignity office estate as Knights Esquires Gentlemen Yeomen Citizens Merchants these as Freemen are all Peers one to another and may pass upon each other in Juries both in civil and criminal causes and this clause No Freemâ—n shall be imprisoned c. but by the lawfull judgement of his Peers extends only to villains and those who are not Freeholders from being Iudges of Freemen and Freeholders in trials by Jury whence the Writs to the Sherifs to summon Jurors require them alwayes to return Liberos Legales homines not to exclude Lords or Peers who are Freemen in the highest degree to be Judges of Commoners who are Freemen So as the Argument from the true meaning of this Law can be but this in respect of the persons quality who are to give judgement Villains and those who are no Freemen are not to be Judges of or impannelled in Juries to condemn Freemen because they are not their Peers nor Freemen as well as they Therefore Lords who are Freemen of the highest degree may not give judgement against Commoners who are Freemen Very learned nonsence We all know that the Lord Chancellor of England Lord Keeper Lord Treasurer Master of the Court of Wards and some of the Judges of the Kings Courts in Westminster Hall in former times with the Chief Justiciar and Justices in Eyre were antiently and of late too as the Earl of Holland and others Peers of the Realm not Commoners and that all the Peers of the Realm are in Commissions of Oyer and Terminer and of the Peace yet did we never hear of any Commoner demurring or pleading thus to any of their Jurisdictions in Chancery Kings Bench the Exchequer Chamber Eyres Assises or Sessions Sir I am a Commoner and you are a Peer of the Realm but no Commoner as I am besides you sit here only in the Kings right doing all in his name and representing his person who is not my Peer but Sovereign Therefore you ought not to judge my cause condemn my person nor give any sentence for or against me it being contrary to Magna Charta which enacts That no freeman should be judged or passed upon or condemned but by the lawfull judgement of his Peers Certainly no person was ever yet so mad or sottish to make such a Plea before Ignoramus Lilburn And if Lords Peers may judge the persons causes of Commoners in the Chancery Kings Bench Exchequer Court of Wards Eyres and at Assises Sessions without any violation of this clause in Magna Charta though they are exempted to be impannelled or serve in Juries in cases of Commoners as Commoners in Juries to try them much more may the House of Peers in Parliament doe it who are certainly Peers to Commoners as Freemen though Commoners be not Peers to them as Lords within the meaning of Magna Charta chap. 29. Fourthly If the Lords in Parliament cannot meddle with or give judgement in Commoners causes without breach of this clause in Magna Charta then why did Lilburn himself sue and petition to the Lords as the only competent Judges to reverse his sentence in Star Chamber and give him damages because it was against this very Chapter of Magna Charta If Lords cannot give judgement in the case of Commoners as now he holds without express violation of this Law then himself in petitioning the Lords to relieve him against the Star-Chamber sentence because contrary to this very Law and Chapter of Magna Charta was a great a violator of it as his Star-Chamber censurers and his sentence in Star-chamber remains still unreversed because the Lords examining reversing of it they being no Commoners as he is but Peers was Coram non judice and meerly void by the Statute of 25 E.
Christ beseeching all that fear God to behave themselves as obedient Subjects to the Queens Highness and the superiour powers which are ordained under her rather after their example to give their heads to the block than in any point to rebell against the Lords anointed Queen Mary in no point consenting to any Rebellion or sedition against her Highness but where they cannot obey but must disobey God there to submit themselves with all patience and humility to suffer as the will and pleasure of the higher powers shall adjudge Against the doctrine practice of some new Saints of this iron age who will ward off Christs wooden Cross with their iron swords and rather bring their Soveraigns heads to the block than submit their own heads unto it for their very Treasons and Rebellions against them So farr are they from believing practising the very first Alphabetical Lesson of our Saviours prescription and real Christanity Mat. 16.24 If any man will come after me let him deny himself and take up his cross and follow me The Duke of Northumberland for that he was appointed General of the Army in this Quarrel of the Lady Jane though Queen de facto was arrested of High Treason together with 3. of his Sons the Marquess of Northampton the Earl of Huntindon with sundry Knights Gentlemen and sent prisoners to the Tower of London The 16. of August next following the said Duke and Nobles were publikely arraigned of High Treason in Westminster hall before Thomas Duke of Norfolk High Steward of England being brought to the bar the D. used great reverence to his Judges professing his faith and allegiance to the Queens Majesty whom he confessed he had grievously offeâ—ded saying that he meant not to speak any thing in defence of his face but would first understand the opinion of the Court in 2. points 1. Whether a man doing any Act or thing by authority of the Princes Councel and by Warrant of the Great Seal of England and nothing doing without the same may be charged with TREASON for doing any thing by such Warrant Which question was grounded on this very Statute of 11 H. 7. c. 1. 2. Whether any such persons as were equally culpable in that crime and those by whose Letters and Commandment he was directed in all his doings might be his Iudges or passe upon his Tryal as his PEERS To the 1. was answered mark it That the Great Seal he had for his Wâ—rrant was not the Seal of the Lawfull Qu. of the Realm nor pâ—ssed by her Authority but the Seal of an Vsurper and therefore could be no Warrant to him To the 2. That if any were as deeply to be touched in that Case as himself yet so long as no attainder was of Record against them they were nevertheless persons able in Law to pass upon any tryal and not to be challenged therefore but at the Princes pleasure After which the Duke and the rest of the Lords using but few words declaring their earnest repentance and imploring the Queens mercy confessed this Indictment of Treason and thereupon had Iudgement passed upon them as Traytors And the Duke with Sir Iohn Gates and Sir Thomas Palmer were accordingly executed on Tower Hill August 22. confessing the Iustice both of their Iudgement and Execution as TRAYTORS and not justifying themselves by the Act of 11 H. 7. After this Archbishop Cranmer though at first he refused to subscribe K. Eds. will to dis-inherit Queen Mary alleging many reasons against it yet was committed Prisoner to the Tower indicted arraigned condemned of High Treason in November following for aiding the Earl of Northumb. with Horse and Men against Queen Mary And Queen Jane herself though Queen de facto meerly passive not active in this case never aspiring after the Crown being proclaimed Queen against her will with the Lord Guyldsord her husband were both indicted arraigned condemned of High Treason and accordingly executed as Traytors Feb. 12. 1 Mariae the one for usurpation of the royal Estate AS QVEEN OF ENGLAND the other as principal adherent to her in that case both of them confessing that BY THE LAW THEY WERE JUSTLY CONDEMNED After which the Duke of Suffolk her father and sundry others were condemned of High Treason executed upon the same account and that by the judgement of all the several Peers Nobles Judges Lawyers and Great Officers of Engl. though guilty of the same crime seconded with the Judgement of the whole Parl. of 1 Mar. c. 16. which confirmed their Attainders as JUST and LEGAL notwithstanding the Statute of 11 H. 7. c. 1. which extends only to indemnifie those Subjects who doe their true duty and service of allegiance to their King and Soveraign Lord which none certainly do who adhere and joyn with an apparent Usurper in possession against their lawfull undoubted King and Soveraign Lord as they here adjudged and the Parliaments of 1 4 and 14 of King Edward the 4th long before no Acts of Parliament whatsoever being able to secure Usurpers Titles though Kings de facto to themselves or their posterity or to save their own or their adherents Heads from the block or their estates from confiscation as the recited tragical Presidents and Judgements prove against the absurd opinions of many Grandees of the Law in great reputation who take all Sir Edward Cooks and others Dotages for Oracles and well deserve a part in Ignoramus for being ignorant of these late notorious Judgements and authorities against their erronious opinions wherewith they seduce their silly Clyents and young Students of the Law to their great peril for whose better information I have the larger insisted on this point to rectifie this dangerous capital mistake which may hazard both their lives estates and souls to boot And so much in answer to the objected Presidents of Edward and Richard the 2d to prove the Commons Right of Judicature in Parliaments c. As good an evidence as that grave Sir E. Cook produceth to prove this House of Commons who had no Journal Book till â— Ed. 6. to be a distinct Court of Iudicature because upon signification of the Kings pleasure to the Speaker they do and may prorogue or adjourn themselves and are not prorogued adjourned by the House of Lords By which reason he might prove every Committee of the Lords or Commons House to be a distinct Court because they may adjourn and prorogue themselves without the House and all Commissioners for examination of Witnesses Charitable uses the petty Sessions of Justices of Peace all Country Committees Archdeacons and other visitors all Auditors of Accounts Arbitrators Referrees c. to be Courts because they may all adjourn themselves from one day and place to another when as their presenting of their own Speakers in and the Kings calling them into the Lords House at the beginning and end of every Parliament or Session and at the passing of Bills and their dissolution in the Lords
House nor any Speaker of their Houâ—e that we find in History or Record till 51 E. 3. Therefore doubtlesse they had no judicial power or jurisdiction 4ly When they became a House and had a Speaker they could neither chuse their Speaker in any Parliament without a command to and license first granted them by the King Lord Chancellor or the person implyed by the King to shew the causes of summoning the Parliament who gave them a command to elect their Speaker and then to present him to the King and Lords for their approbation of him at the time prescribed them who had then power to allow or disallow their Speaker and to order them to elect another then or afterwards incase of unfitness sickness imprisonment or any other just ground or excuse as our Parl. Rolls and others attest If then the Commons can neither elect their own Speakers nor approve nor remove them but by the Kings and Lords approbation who may discharge them upon just grounds and order rhem to elect others in their places and that against their wills as in the case of Thorpe hereafter cited Then certainly the judicature in all other cases as well as this of their very Speakers and Members too resided still in the King and Lords and was not communicated to the Commons House 5ly The Commons House inability to administer an Oath to any person in any case which the Lords alone have power to doe in Parliament 6ly Their Petitions Articles of complaint and Impeachments in all Parliaments delivered and sent up to the Lords against Delinquents in Criminal causes as well of Commons as Peers Clergy men as secular persons and their praying the Lord to judge and give sentence against them 7ly Their prosecuting and giving in evidence against all sorts of Deliquents at the Lords Bar as accusers 8ly Their standing always in such cases and that bare headed in the Lords House as Prosecutors Informers Grand-Jurymen whiles the Lords alone fit and that covered and only give pronounce the iudgement and that in the Comons absence for the most part not presence 9ly Their having no voice or share at all in the hearing examining debating reversing erronious Judgements in other Courts upon Writs of Error brought in Parliament but the Lords alone 10ly The Kings Judges not sitting amongst them but only in the House of Peers to authorize and assist them in their judgements are all infallible arguments and clear irrefragable demonstrations that the Judicatory or judicial power of Parliaments was never communicated to the Commons House upon their first admittance into Parliament nor since but remained intirely fully in the King and Lords alone as it did before That this is so in truth I have the express acknowledgement and confession of the whole House of Commons themselves long since in the Parliament of 1 H. 4. rot Parl. n. 79. remaining on record to all Posterity with the Kings and Lords concurrent resolution both from the time of the Commons first admission and for all succeeding ages The Commons in this Parliament November 3. made their Protestation in the same manner they had done in the beginning of the Parliament and more over shewed to the King Come les Ioggementz du Parlement apperteignent soulement au Roy et Seignieur et nient as Communes c. That the Judgements of Parliament appertained only to the King and to the Lords and not unto the Commons And thereupon they praâ—ed the King out of his special grace to shew unto them the said Iudgements and the cause of them that so no Record migâ—t be made in Pâ—rliamenâ— against the said Commons which are or shall be parties to any judgement given or hereafter to be given in Parliament without that privity Whereunto the Archbishop of Canterbury gave them this answer by the Kings commandment That the Commons themselves are Petitioners and demanders Et que le Roy et les seigniours de tout temps ont eues et averont de droit les juggement in Parliament en manere come mesmes les Communes sont monstrez and that the King and Lords from all times have had for times past and shall have for time to come of right the Iudgements in Parliament in manner as the Commons themselves have shewed Saving that in Statutes to be made â—or in Grants and Subsidies or in such things as are to be doâ—e for the common profit of the REALM the KING will have especially their advice and assent By this memorable Record in Parliament it is apparent by the Commons own confession First That the Judgments in Parliament even in cases of Commoners themselves and Members of the Commons House as well as Peers appertain only to the King and to the Lords in the Affirmative Secondly That they appertain not to the Commons in the Negative Thirdly A Confession both of the Commons King and Lords That they have from all times in all ages before that Parliament appertained to the King and Lords and that of right not by usurpation or connivence Fourthly An express order and resolution that the King and Lord shall alwayes kéep and hold this their Right of Iudicature in all times to come without admitting the Commons to share therein upon this their Petition as not fit to be granted them Fifthly That if the Commons should be admitted at any time to be parties or privies to the Judgements in Parliaments as they then desired it would be meerly out of the Kings special Grace Sixthly That the special reasons ends of the Kings summoning the Commons to Parliaments at the first and ever since were only these especially 1. to have their advice in Statutes to be made 2. in Grants or Subsidies 3. in such things as are to be done for the common profit of the Realm not to give them the least share right or interest in the Judicature or Judgements of Parliament as it is the supremest Court of Justice The Judicial Power and the Judgements in Parliament being never transferred in part or whole by the King and Lords to the Commons House but intirely reserved to themselves as before their admission inâ—o our Parliaments as I have proved it follows inevitably from thence 1. That all Judgements given by the Commons House alone or by any of their Committees of Sequestrations Examinations plundered Ministers c. without the Lords are meerly void and null in Law being Coram non judice and may be justly questioned and vacated by the Lords upon appeal or complaint as Nullities 2. That the House of Commons have no more right or power to judge or vote down the Lords House or question or null their Judgements upon appeals to the Commons from them as Lilburn and Overton pretend they may than the Grand or Petty Jury have to Vote down the Judges and Justices of Assize or Sessions from the Bench or to reverse or repeal their Judgements and Orders Or the Common Council of London to
vote down the Lord Mayor and Aldermen and reverse their Orders and Judgements in their Court upon appeals unto them They being in nature of Grand Jury men and the General Inquisitors of the Realm to inquire of present and impeach transmit delinquents of all sorts in Parliament to the Lords House their only Judges Cooks 4. Instit p. 24. 3ly That the King and House of Lords are now of right and still ought to be the only true and proper Judges of all Parliamentary Causes and Controversies Civil Ecclesiastical or Criminal whether they concern Peers Clergymen or Commoners as they were originally before any Knights Citizens or Burgesses summoned to them To clear this from all Scruples and avoid mistakes I must inform you that there is a twofold way of proceeding and judgeing in Parliaments The 1. extraordinary and extrajudicial by way of Bill Act or Ordinance by the Legislative power alone such Bills Acts Ordinances ratifying only the precedent judgements of the Lords passed against Malefactors being not any proper actual Judgements in their own name This is evident by one of the first cases wherin the Commons after their admission into our Parliaments were made parties to a Judgement by way of Bill In the Parliament of 15 E. 2. there were sundry Articles of High Treason in accroaching royal Power in divers cases c. as likewise of misdemeanour and Breach of the Great Charter exhibited against the 2. Hugh Spencers both privy Counsellors of the realm which upon examination were found true BY THE EARLS BARONS OTHER PEERS OF THE LAND Parquoy NOVS PIERS DE LATERRE COUNTS BARONS en la presence nostre SEIGNOUR LE ROY AGARD que Sir Hugh le Despenser le Fitz Sir Hugh le Despenser le piere soient disheritz a touts jours come disheritours de la corone enemies du roy de son people que ilz soient de tout exiles hors du royalme Dangliterre sans retourner in nul temps si ceo ne soit de assent nostre Seignor le Roy de lassent DES PRELATS COUNTS ET BARONS et ceo en parlement duement somons Et les donons port a Dover nul parte aillours a voyder a passer hors du royalm Dangliterre enter cy la feast de sainct John le Baptist prochein avenir cest jour accompte Et si lesâ— it Sir Hugh Sir Hugh demurgent en le royalme Dangliterre oustre le dit jour que done lour est de voyder de passer come desuis est dist ou que apres le dit jour retournet adonques soit fait de eux come de enemies de roy de roialme This judgement being given against them in Parliament only by the Peers Earls and Barons in the presence of the King as the Close of the Act for their banishment and Clause Roll of that year recite thereupon there was an Act drawn up wherein all the Articles and the judgement given against them are recited for confirmation of this Judgement wherein the Prelates and Commons were made parties though not to the judgement it self beginning thus Al honeur de deiu c. luy monstrent Prelates Counts Barons et les autres Pieres de la terre COMMON de Royalm contre Sir Hugh c. To which Act the King much against his will to prevent a warr consented The History of the Lords proceedings against these Spencers is thus related by Walsingham There falling out a difference between Hugh Spencer the younger and Earl of Hereford about lands which Spencer purchased of William de Brews which the Earl desired to buy and had first contracted for but Spencer by his power at Court bought from him the Earl thereupon being much incensed complained of this injury to Thomas Earl of Lancaster qui allicientes caeteros pene cunctos Comites Barones in partem suam conjurationem fecerunt maximum ad vivendum moriendum pro justitia regni proditores pro viribus destruendis praecipue utrunque Hugonem de Spencer patrem scilicet atque filium quos odio inexorabili perstringebant eo maxime quia regem ducebant pro suae voluntatis arbitrio in tantum quod nec Comes nec Baro nec Episcopus quicquam valuit expedire in Curia sine horum consilio vel favore Omnium ergo livore persequebantur qui omnibus pene dominabantur quo plus crevit eorum gloria eo amplius contra illos crevit invidia quae semper accrescit abundantia aliorum Igitur Barones duce Thoma de Lancastria apud Shirborn in Elmedon convenerunt faederati prout dicitur juramentis astricti ad prosequendum propositum usque ad corporis animae divisionem Sed tamen pene cuncti praeâ—er Thomam de Lancastria Humfridum Comitem de Herefordia paucos alios ante finem negotii retrorsum abierunt prae timore mortis sese Regi dediderunt sed haec inferius plenius videbuntur Cumque Barones ut praefertur apud Shirburnam convenissent quosdam artirulos proscriptionem dictorum Hugonis Hugoniâ— composuerunt sed tamen vias juris et aequitatis in hac parte penitus omiserunt suorum pro tempore exequentes impetus animorum Nam illorum bona qui illis vel amicitia vel affinitate juncti fuerant furibunde invadebant capientes castra per violentiam vastantes praedia per malitiam perimentes famulos reperâ—os iâ— custodiis eorundem dolentes ob hoc tantummodo quod eorum personas capere quos oderunt minime potuerunt praedicta furia de die in diem vires sumente Barones vexillis explicatis ad sanctum Albanum veniunt per viam deripientes ubique victualiâ— pauperes terrae gravantes In hac comitiva fuerant quidam qui propter inveteratum odium monasterium sancti Albani dictique loci Monachos se gravaturos devoverant Sed tamen disponente Deo qui neminem temptari permittit supra vires horum magister autor tantae malitiae in villa de Alysbury priusquam ad sanctum AlbanuÌ„ attingeret morbo percussus irremediabili propriis seipsum descerpit manibus post duos dies miserabiliter expiravit Caeteri tam formidabili tremefacti vindicta casum pro miracuâ—o reputantes ab executione voti illiciti timore magis quam amore destiterunâ— Magnates vero apud sanctum Albanum cum suis armatis exercitibus per triduum perhen inâ—ntes miserunt solennes ad Regem nuncios Londoniis commorantem Londoniensem Sarisburiensem Eliensem Herefordensem Cicistrensem Praesules qui tunc apud sanctum Albanum convenerant pro pace reformanda mandantes ut dominus rex non solum suam vacuaret curiam sed regnum suum de regni Proditoribus Hugone Hugone le Spencer per communitatem terrae in multis condemnatis articulis exiliumque meritum subire permitteret si diligeret regni pacem Petierunâ— Barones insuper