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
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
praesenti supersit His horumque similibus regali facundia editis praefaâ—us Petrus assensum praebere utile judicavit annuit Quapropter larga regis munificentia magnifice honoratus nullo modo se quicquam antiquae dignitatis derogaturum immo ut dignitatis ipsius gloria undecunque augmentaretur spoâ—pondit plena fide elaboraturum Pax itaque firma inter eos firmata est qui Legati officio fungi in tota Britannia venerat immunis ab omni officio tali cum ingenti pompa via qua venerat extra Angliam a Rege missus est At Canterbury he perused the antient privileges granted to the Prelates by the See of Rome touching their superiority over York Quibus ille perspectis atque perpensis testatus etiam ipse est Ecclesiam Cantuariensem grave nimis immoderatum praejudicium esse perpessam quatenus hoc velocius corrigeretur â—e modis omnibus opem adhibiturum pollicitus est Post haec Angliam egreditur By all these Parliamentary Councils and Proceedings in them and the Kings answer to this Legate it is most apparent from the testimony of Eadmorus present at most of them and then antient Hiâ—orians 1. That they all consisted during all the reign of King Henry the 1. of the King Bishops Abbots Earls Lords and Barons without any Knights Citizens Burgesses or Commons elected by the people 2ly That not only the legislative but judicial power or judicature of Parliament in all civil ecclesiastical and criminal causes debated or judged in them resided wholly in the King Prelates Earls Barons and Nobles which they joyntly and severally exercised by mutual consent as there was occasion 3ly That our Kings Prelates Nobles were then all very vigilant and zealous in opposing the Popes usurpations upon the antient Liberties Privileges Customs of the king kingdom and Church of England 4ly That those Antiquaries and others are much mistaken who affirm the Commons were called to the Parliament of 16 H. 1. as well as the Peers and Nobles and that since that time the authority of this Court hath stood setled and the COMMONALTY had their voice therein which the said H. 1. GRANTED TO THEM in love to the English Nation being a natural Englishman himself when as the Normans were upon terms of revolt from him to his Brother Robert Duke of Normandie it being clear by these Histories and all the Parliamentary Councils under King Henry the 1. and under Hen. the 2. King Ric. the 1. King John and Henry the 3. forecited and here ensuing that there were no Knights Citizens Burgesses or Commons elected by the people summoned to our Parliaments in their reigns succeeding Henry the 1. therefore not in his 5ly That the Opinion of Mr. Cambden Judge Dodridge Jo. Holland Sir Ro. Cotton Mr. Selden and others is true that the first Writ of Summons of any Knights Citizens Burgesses or Commons to Parliament now extant is no antienter than 49 H. 3. dors 10.11 That King Henry the 3. after the ending of the Barons wars appointed and ordained That all those Earls and Barons of the Realm to whom the King himself should vouchsafe to send his Writ of Summons should come to his Parliament and none else but such as should be chosen by the voice of the Burgesses and Freemen by other Writs of the king directed to them And that this being begun about the end of Hen. the 3. was perfected and continued by Edward the 1. and his Successors Which Holinshed Speed do likewise intimate in general terms So that upon due consideration of all Histories Records and judicious Antiquaries it is most apparent that the Commons had no place nor votes by election in our Parliaments in Hen. 1. his reign noâ— before the latter end of King H. 3. and Ed. 1. who perfected what his Father newly before him began in summoning them to Parliaments This being an irrefragable truth as I conceive the next thing to be considered of is this whether the Commons when thus called and admitted by H. 3. and E. 1. into our Parliaments had any share right or interest in the judicature of Parliaments then granted to them either as severed from or joyntly with the King and Lords And if any share or right at all therein at what time and in what cases was it granted or indulged to them With submission to better judgements I am clear of opinion that the King and Lords when they first called the Knights Citizens and Burgesses to Parliament never admitted them to any share or copartnership with them in the antient ordinary Judicial power of Parl. in civil or criminal causes brought before them by Writ Impeachment Petition or Articles of complaint as they were the supreme judicature and Court of Justice but reserved the judicial power and right of giving and pronouncing all Judgements in Parliament in such cases and ways of proceeding wholly to themselves admitting them only to share with them in their consultative Legislative and Tax imposing power as the Common Council of the Realm thereby in cases of Attainder by Act Bill or Ordinance a part of the Legislative not ordinary judicial authority of Parliament allowed them a voice and partnership with themselves and a share in reversing such Aâ—tainders by Act Bill or Ordinance by another Bill or Sentence but in no cases else except such alone wherein the King or Lords should voluntarily at their own pleasures not of meer right requite their concurrence with them The Arguments reasons inducing me to this opinion and irrefragably evincing it are these 1. The Form of the Writs for electing Knights Citizens Burgesses of Parliament with the retorns and Indentures annexed to them which are only ad faciendum consentiendum his quae tunc ibidem de Communi Concilio dicti regni contigerint ordinari Which gives them no judicial power in civil or criminal causes there adjudged as the Writs to the Lords doe give to them by these clauses Ibidem cum Praelatis Magnatibus Proceribus regni colloquium habere tractatum vobiscum c. colloquium habere tractare Personaliter intersitis Nobiscum ac cum Praelatis Magnatibus Proceribus super dictis negotiis tractaturi vestrumque consilium impensuri and usage custom time out of mind 2. Because when first summoned to our Parliaments they were never called nor admitted thereunto as Members of the Lords house or as persons equal to them in power nor admitted to sit in the same Chamber as Peers with them but as Members of an inferiour degree sitting in a distinct Chamber from them by themselves at first as they have done ever since which I have elsewhere proved against Sir Edward Cooks and others mistakes as Modus tenendi Parliamentum it self resolves if it be of any credit 3ly Because after their call to our Parliaments in 49 H. 3. they had scarce the Name nor Form of an House of Commons or Lower
inform us In the Parliament of 2. Caroli the Duke of Buckingham impeached the Earl of Bristol and the Earl of Bristol impeached this Duke before the Lords in sundry Articles for divers misdemeanours touching the Spanish match King Prince to seduce him in his religion praying judgment of the Lords thereupon against each other In the Parliament of 3. Caroli the Duke of Buckingham was accused and Impeached by the Commons before the Lords for sundry high Misdemeanors and the Parliament thereupon dissolved to prevent his censure In this very Parliament of King Charls now sitting Thomas Earl of Strafford was accused and impeached by the House of Commons of High Treason and other misdemeanors comprised in sundry Articles which they transmitted â—o the House of Lords desiring that he might be put to answer them and such proceedings examination trial and judgement thereupon had and given against him by the Lords as is agreeable to Law and Justice Hereupon he was openly tried in Westminster Hall before the House of Lords there sitting as his Judges where the House of Commons prosecuted and gave in Evidence against him sundry dayes and in conclusion demanded the Lords to give Iudgement against him in the Iudicial way After which they proceeded against him by way of Bill not to decline their Lordships Iustice in a Iudicial way but to husband time by preventing some doubts and as the speediest and soonest way Upon the passing of which Bill he was beheaded and executed as a Traytor On the 26 of February 1640. William Laud Archbishop of Canterbury was accused and impeached of High Treason by the House of Commons of 14. Articles then transmitted by them to the House of Lord The first whereof was this That he had trayterously endeavoured to subvert the fundamental Laws and Government of the Realm and instead thereof to introduce an Arbitrary and Tyrannical Government against Law And the last of them this That he had laboured to subvert the rights of Parliament and the ancient Course of Parliamentary proceeding which the New-modellers of our Parliaments more guilty hereof by many degrees than he may do well to consider Upon which they prayed from the Lords such proceedings examination trial and Iudgement against him as is agreeable to Law and Justice Upon these Articles he was brought to a publike Trial in the Lords House the 12. of March 1643. and after 17. whole dayes spent in his meer Trial and proof of the Charge against him and his defence thereto morning and evening and several other dayes spent in the hearing of him and his Council and the Commons Reply touching his Charge and the matters of Law whether the Charge prâ— against him amounted to High Treason the Lords upon most mature deliberation voted him Guilty of all the Articles and matters of fact charged against him and also of High Treason and thereupon passed an Ordinance for his Attainder by vertue whereof he was beheaded as a Traytor on Tower-Hill January 10. 1644. To these I might add the seveeal Articles of Impeachment transmitted by the House of Commons this Parliament to the Lords against Matthew Wren Bishop of Norwich the 20. of July 1641. against William Pierce Bishop of Bath and Wells and against the Bishops of Winchester Coventry and Litchfield Glocester Chichester Exeter St. Asaph Hereford Ely Bangor Bristol Rochester Peterborough and Landaffe August 4. 1641. requiring such proceedings from the Lords against them as to Law and Justice shall appertain All which are a superabundant impregnable Evidence of the Lords inherent Judicial power and right of Judicature in our English Parliaments even by the Commons House own Impeachments and acknowledgements against the Levellers pretences to the contrary By all these forecited presidents it is most apparent 1. That the King and Lords in our Parliaments in all ages both before and since the Commons admission to sit and vote in Parliaments have been the sole Judges of Ecclesiastical Peers and Lords in all criminal cases without the Commons 2ly That the Lords and Peers of the Realm except only in case of appealâ— both in and out of Parliament are triable only by their Peers And therefore the Trial condemnation and execution of any of them by Marshal Law or now misnamed High Courts of Justice by Commoners and others who are not their Peers is most illegal unjust and nought else but murther as the Parliaments of 1 H. 4. rot Parl. n. 45. of 1 E. 4. rot Parl. n. 18. resolve and as it was adjudged in the case of Thomas Earl of Lancaster Paâ—ch 39 E. 3. Coram Rege Rot. 92. Wiâ— Cooks 3. Institutes p. 52 53. Secondly The next and main question now conâ—roverted will be Whether the King House of Peers have any lawfull or sole power of Judicature in and over the persons of the Commons of England as well as over Peers in criminal causes misdemeanours offences or breaches of their Parliamentary privileges so farr as to fine imprison censure judge or condemn them in any kind without the House of Commons concurrent vote or judicature This the ignorant sottish Levellers Sectaries seduced by their blind guides John Lilburn and Overton peremptorily deny the contrary whereof I shall here infallibly make good to their perpetual shame and refutation by unanswerable Reasons and presidents in all ages 1. I have already manifested That the Parliament being the supremest Court of Judicature in the Realm must consequently have a lawfull Jurisdiction over all persons and members of the Realm whether Spiritual or Temporal Lords or Commons in all criminal and civil Causes proper for Parliaments to judge or punish That this power of judicature was originally and primitively vested in the King and Lords alone before there were any Knights Citizens Burgesses or Commons summoned to our Parliaments as is evident by the antient writers Glanvil Bracton Fleta Horn the Parliament of Clarindon Anno. 1164. and other forecited authorities and never transferred by them to the House of Commons upon or after their admission into our Parliaments but remaining intirely in the King and Lords as at first as the whole House of Commons acknowledge upon record 1 H. 4. rot parl n. 79. Therefore they may lawfully exercise this their judicial power and jurisdiction over the Commoners of England in all such causes now and hereafter and that of right as this record resolves they may do in positive terms 2ly Our Histories Law-books and Records agree that in ancient times our Earls who were called Comites or Counts from the word County had the chief Government and Rule of most of the Counties of this Realm under our King and that they and the Barons were the proper Judges of the Common people both in criminal and civil Causes in the Tourns county-County-Courts even by vertue of their Dignities and Offices as our Sheriffs are now in which Courts they did instruct the people in the Laws of the Land and administer Justice
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
trenches and those within prepared to defend their walls and Bulwarks Then the Archbishop and all the Bishops with burning Papers smote Falcatius himself and all within the Castle with the sword of Excommunication The King commanded all warlike engines to be brought and gave many assaults to the Castle to win it by force since they refused to render it many were slain and wounded on both sides At last after many weeks siege the Kings soldiers entring the Castle by force those within it being unable to hold out any longer rendred themselves to the Kings mercy who putting them in close custody and chains commanded 24 of the Knights and Souldiers who stouted it most against him even when the siege was ended QVI OMNES SVSPENDIO ADJUDICATI SVNT to be hanged that day Matthew Westminster writes there were near one hundred of them hanged up Henry Braibroc being then restored to the King safe and sound rendred him many thanks In the mean time the King sent an armed Troop to seek out and apprehend Falcatius and bring him prisoner to him who having notice thereof fled into Wales for shelter The K. thereupon swore that if he took the Castle by force he would hang up all who were within it And withall seised upon all Falcatius his Manors Lands Corn goods and chattels throughout England as confiscated At last Falcatius hearing that the Castle was taken and his Brother and souldiers hanged came to the King to Bedford under the conâ—uct of Alexander Bishop of Coventry and there casting himself at the Kings feet humbly implored his mercy in respect of the many great and costly services he had done in his father and himself in time of warr Tum Rex per Consilium of his Nobles and Barons tradidit illum Casteliis Terris et rebus omnibus spoliatum sub custodia Euâ—châ— Londoni 〈◊〉 Eâ—iscopi donec quid de illo ageret esset sententialiter deâ—nitum Et sic quasi in momento idim Falcatius de duissimo pauperimus effectus multis et maxime nocentibus poterit fieri in exemplum Regi autem pro maximis laboribus et expensis in the siege of this Castle tam à Clericis quam à â—nicis concessum est per totam Angliam Carucagium de qualibet caruca duo solidi argenti MAGNATIBUS item concessit Rex scutagium scilicet de scuto quolibet duas marcas sterlingorum et sic omnes ad propria recesserunt Castellum quoque illud fecit Rex complanari et redigi in acervos A most memorable example of regal and Parliamentary Justice upon insolent contemners of Law Justice and Justices the whole Parliament turning Souldiers and continuing together at the Siege of this Castle above two Months space till they had taken the Castle and Malefactors by force and done execution on both And an eminent president of the Ks. Lords Jurisdiction in causes both of Commoners and Souldiers as well as Peers and Nobles Henry de Bathonia a learned Knight most skilfull in the Laws of the Realm one of the Kings Justices and special Counsellors in the year 1251 the 35 of Henry the 3. was most grievously defamed and accused of bribery and corruption in the Office of his Justiceship wherein he feared not treacherously to empty other mens purses to fill his own growing thereby in a short time extraordinary rich in Rents Monies Gold and Silver being instigated thereunto by his wife whereby adeo turpibus per fas et nefas emolumentis inhiabat ut in una sola itinaratione Justiciaria dicebatur plusquam ducentas libratas terrae sibi appropriare Whereupon appellatus est de infidelitate et proditione by Philip de Arci Knight coram Rege et Curia Regis And attached for to answer it John Mansell the Kings Chief Justice profered to bayl him and to be his Manucaptor ut staret Justitiae but he could not be heard the King being so incensed that he answered he would take no Clergy-man for his bayl in such a case reputing it to be HIGH TREASON at last by the Bishop of Londons others mediation intercession he was bayled by 24 Knights and delivered to their custody pro ipso Hen. responsionem justificationem rite et judicialiter statuto termino facturum After which by gifts and large promises he earnestly sollicited his friends to intercede for him with the King â—nd procure his pardon or else if they could not effect it to stand constantly for him in the day of peril armis si necesse sicut et equis communiti which they by unanimous consent promised to doe The King being privily informed thereof majori iracundia accensus omnia munera et verba reconciliationis praecise refutabat jurans quod per medium judicii districti necessario fuerat transiturus Upon this he by intreaties and gifts procured Earl Richard to mediate to the King for him adjungens sub tremendi judicii attestatione quod si Dominus Rex mortem suam imo etiam exhaeredationem procuraret totum regnum in ipsum Regem insurgeret tota perturbaretur quod si fieret cum sub sint aliae causae maxime alienigenarum injustae dominationes Anglorum oppressiones non sedaretur schisma ventilatum The Earl hereupon most effectually interceded for him and the peace of the Realm but could not mitigate the Kings wrath and indignation In March there was a great Parliament held at London where Henry was appointed to appear and answer who came thither guarded with a great multitude of Souldiers of his Wives and his own kinred and friends Whereupon the King being highly incensed he was on every side grievously assaulted and accused by his adversaries and by the King more heavily than the rest imponens eidem inter caetera quod totum regnum perturbavit et Barnagium universum contra ipsum Regem exasperavit unde seditio generalis imminebat Fecit igitur acclamari voce praeconia Londini et in curia ut si quis aliquid habere actionis vel querelae adversus Henricam de Bathonia veniret ad curiam ante Regis praesentiam ubi plene exaudiretur Insurrexerunt igitur multi queruli contra eum ita quod unus etiam sociorum suorum scilicet Justitiarius palam protestaretur quod unum facinerosum convictum incarceratum abirâ— permisit impunitum sine judicio opimis respectus muneribus quod factum est in Regis praejudicium Justitiariorum comitum suorum periculum et discrimen Rex igitur magis inde provocatus ascendit superius exclamavitque dicens Si quis Henricum de Bathonia acciderit quietus sit a morte ejus quietum eum protestor sic propere recessit Rex Et fuerunt ibi multi qui in ipsum Henricum hostiliter irruissent nisi Domini Johannis Mansel prudentia eorum impetum temperans refranasset Dixit enim Domini mei et amici non est necesse quod in iuâ—a praprepere dicitur prosequamur Poenitebit forte
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
3. Stat. 5. c. 4. because contrary to Magna Charta it self as he now expounds it Let him therefore unriddle assoyl this his own Dilemma or for ever hold his tongue and pen from publishing such absurdities to seduce poor people as he hath done to exasperate them to clamour against the Lords for being more favourable in their censure of him than his transcendent Libels and contempts against them deserved Fifthly This Statute is in the disjunctive by the Lawfull Judgement of his Peers OR BY THE LAW OF THE LAND which this Ignoramus observes not Now by the Law of the Land every inferiour Court of Justice may fine and imprison men for contempts or misdemeanors against them and their authority therefore the Lords in Parliament being the highest Tribunal may much more do it and have ever done it even by this express clause of Magna Charta and the Law and Custom of Parliament as well as they may give judgements in writs of Error against or for Commons without the Commons consent as himself doth grant yea and by the Kings concurrent assent declare what is Treason and what not within the Statute of 25 E. 3. c. 20. in the cases of Commoners as well as Lords without the Commons as they did in the forecited cases of William de Weston and Lord of Gomines 1 R. 2. n. 38 39 40. Of William Thorp 25 E. 3. n. 10. Of Thomas Haxey 20 R. 2. n. 15 16.23 Of Sir Thomas Talbot 13 R. 2. n. 20 21. Of Sir Robert Plesington and Henry Bowhert 22 R. 2. Plac. Coronae in Parliamento n. 27 28. Of John Hall 1 H. 4. Plac. Coronae in Parl. n. 11. to 17. Of Sir Ralph Lumley and others 4 H. 4. n. 15. 19 20 21. Of Sir John Oldcastle 5 H. 5. n. 11. and of Sir John Mortymer 2 H. 6. n. 18. as the Commons and Judges in all those Parliaments agreed without contradiction against the erronious opinion of Sir Edward Cooke to the contrary in his 3. Institutes p. 22. Sixthly It is granted by Lilburn that by this express Law No Freeman of England ought to be judged or censured but only by his Peers and that Commoners are no Peers to Nobles nor Noblemen Peers to Commoners Then by what Law or reason dared he to publish to the world That the House of Commons are the Supreme Power within this Realm and THAT BY RIGHT THEY ARE THE LORDS JUDGES certainly this is a Note beyond Ela a direct contradiction to Magna Charta in this very clause wherein he placeth his strength and subverts his very ground-work against the Lords Jurisdiction in their censure of him For if the House of Commons be by right the Lords Iudges then by Magna Charta c. 29. they are and ought to be their Peers and if the Commons be the Lords Peers then the Lords must be the Commons Peers too and if so then they may lawfully be his Judges even by Magna Charta because here he grants them to be no other than his Peers Lo the head of this great Goliah of the Philistin Levellers cut off with his own sword and Magna Charta for ever vindicated from his ignorant and sottish contradictory Glosses on it Now to convict him of his Errour in affirming the House of Commons to be by right the Lords Judges I might inform him as I have formerly proved at large that Magna Charta it self c. 14. 29. and Sir Edward Cook his chief Author in his commentary on them are express against him that in the Parliament of 15 E. 3. ch 2. in print it was enacted That whereas before this time the Peers of the Land have been arrested and imprisoned and their Temporalties Lands and Tenements Goods and Chattels seised into the Kings hands and some put to death without Iudgement of their Péers that no Peer of the Land Officer or other by reason of his office nor of things touching his office nor by other cause shall be brought in judgement to lose his Temporalties Lands Tenements Goods Chattels nor to be arrested or imprisoned outlawed exiled nor forejudged nor put to answer nor to be judged but by award of the said Péers in Parliament which privilege of theirs was both enjoyed and claimed in Parliament 4 E. 3. n. 14 15 E. 3. n. 6 8 44 49 51. 17 E. 3. n. 22. 18 E. 3. n. 7. to 16. 10 R. 2. n. 7 8. 11 R. 2. n. 7 c. and sundry other Parliament Rolls See Cook 4. Instit p. 15. 17 E. 3. 19. Cromptons Jurisdiction of Courts f. 4. 12 13. Stamford f. 151 152. This Paradox therefore of his is against all Statutes Law-Books Presidents whatsoever and Magna Charta it self And as false an assertion as that the Subjects are the Judges of their Soveraign the Servants of their Masters the children of their Parents the Wiâ—es of their Husbands the Soldiers of their General and the feet and lower members of the Head The second only Objection more of moment is this If the House of Peers may without the Commons fine and imprison Commoners then if their fine and imprisonment be unjust and illegal they shall be remediless there being no superior Court to appeal unto which will be an intollerable slavery and grievance not to be indured among free-born people I answer first That no injustice shall or ought to be presumed in the highest Court of Justice till it be apparently manifested Secondly If any such censure be given the party as in Chancery upon just grounds shewed may Petition the House of Peers for a review and new hearing of the cause which they in justice neither will nor can deny and if they do then the party grieved may petition the house of Commons to intercede in his behalf to the Peers for a rehearing but for them to discharge free any Commoner judicially censured by the Lords I have hitherto met with no president in former Parliaments nor power in the house of Commons to doe it who cannot reverse Erronious judgements in any inferiour Courts by writ of Error but the Lords alone much less then the judgements of the Higher House of Peers which is paramount them Thirdly I conceive the House of Peers being the Superior Authority and only Judicatory in Parliament may relieve or release any Commoners unjustly imprisoned or censured by the Commons house or any of their Committees and ought in justice to doe it or else there will be the same mischief or a greater in admitting the house of Commons to be Judges of Commoners if there be no appeal from them to the Lords in case their sentences be illegal or unjust Thirdly This mischief is but rare and you may object the same against a sentence given or Law made in Parliament by the King and both Houses because there is no appeal from it but only to the next or some other Parliament that shall be summoned by petition in the nature of a Writ of
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
should be holden once every year or more often if need be to redress divers mischiefs and grievances which daily happen especially delayes in Judgements and sutes at Law through difficulty or diversity of Opinions among the Judges To prevent which the Statute of 14 E. 3. c. 5. enacts that from henceforth at every Parliament shall be chosen a Prelate two Earls and two Barons which shall have Commission and power of the King to hear by Petition delivered to them the complaints of them that will complain of such delayes and grievances and to cause the records of such Judgements to be brought before them and to hear the cause and reasons of such delayes and by the assistance and advice of the Chancellor Treasurer Justices of both Benches and as many other of the Kings Council as shall seem convenient shall proceed to take a good award and make a good judgement therein And that the Judges shall proceed hastily to give Judgement according to their determination And in case it seemeth to them the difficulty be so great that it may not well be determined without the assent of the Parliament that the said Prelate Earls and Barons shall present the tenor or tenors of the said record or cause to the next Parliament and there shall be a final accord taken what judgement ought to be given in his case And according to this award shall be commanded to the Judges before whom the plea did depend that they shall proceed to give Judgement without delay And to begin to give remedy upon this Ordinance it was assented that a Commission and power be made to the Archbishop of Canterbury the Earls of Arundel and Huntington the Lord of Wake and the Lord Raufe Basset to endure till the next Parliament After which I find this Commission made in pursuance of this Ordinance Edwardus Dei gratia c. authorizing the Bishop of Chichester the Earls of Huntingdon and Devonshire and Tho. Wake of Lidell and Thomas de Berkley Barons assigned to hear querelas omnium qui se de gravaminibus dilationibus sibi factis coram Iustic et aliis conqueri voluerint per avisamentum Cancell Thes Iustic de atroque Banco aliis dâ— Consilio Regis according to the Ordinance made in Parliament 14 Ed. 3. c. 5. that Unus Praelatus Duo Comites et Duo Barones should have Commission and power to hear and determine such complaints Test Rege apud Westm nono die Iunii There is this Petition of the Commons to the King for declaring Treasons in 25 E. 3. Rot. Parl. n. 17. Item come les Iustices nostre Seignior le Roy assignez en diversâ—es Countees ajuggent les gentz que sont empeschez devant eux come Traiteurs pur diverses Causes desconues a la Comune estre Treason que please a nostre Seignior le Roy per son Counseâ—l eâ— per les Grantz et sâ—ges de la terre declarer les pointz de Treason en cest present Parlament Quant aâ—la Petition touchant Treason nostre Seignior le Roy ad Fait declarer les Articles de Y celle en maneâ— que ensuit as in the Statute of 25 E. 3. c. â— By which Petition Act and the like Petition in 21 E. 3. n. 15. it is apparent That the Right of declaring Judging what is High Treason in Parliament belongs originally to the King himself by the advise of his Councel Great men and Sages of the Land and not unto the Commons House at whose request the KING then made a Declaration of the Articles of Treason as in this Statute by his Nobles Councils and Iudges advice Therefore the Declaration of all other Treasons in particular cases not within this Statute belongs wholly to the King Lords Council and Judges in the Lords House not to the Commons alone or joyntly with them within the later branch of this Act as well as the Treasons within the body thereof viz. Because that many other like cases of Treason may happen in time to come which a man cannot imagin nor declare at this present time it is accorded that if any other case supposed Treason which is not before specified shall happen de novel before any Iustice the Iustice shall demurâ— without going to Iudgement of the Treason tanque per devant le ROY EN SON PARLEMENT soit le case monstre et declare de que leceo doit estre a jugge Treason ou autre Felony Against the Opinion of Sir Edward Cooks 3 Institutes p. 22. The Commons having no power at all to declare and judge what shall be Treason in such new particular cases but only when a New Treason is made or declared for the future by Bill or Act of Parliament wherein their concurrence is necessary as in all new Acts concerning Treasons since 25 E. 3. as is evident by Mr. Sr. Iohns Argument at Law this very last Parliament at the Attainder of Thomas Earl of Strafford and Mr. Samuel Browns Argument at the Lords House Bar to prove and satisfie the Lords House that he and Archbishop Laud were guilty of High Treason upon the Articles of their several Impeachments exhibited and proved against them of which the Lords and King alone were the proper Iudges but the Commons only their Impeachers and Prosecutors in the Iudicial way of Parliamentary Proceedings as I have formerly evidenced Therefore all the late Votes knacks Declarations of the Commons House alone before or without the Kings House of Lords Declarations Resolutions of sundry things to be high Treason and divers persons to be Traytors upon bare informations suggestions though not within the Letter of 25 E. 3. c. 2. are but meer illegal innovations extravagancies yea Nullities in Law fit to be eternally exploded especially by Lawyers the chiefest Innovators Promoters of them rather out of ignorance or rashnesse than Prudence Law or solid Iudgement for which they can produce no presidents in former ages In the year 1392. the 15 of King Rich. the 2. we have this memorable President of the Lords Iudicature together with the King assembled in a Great Councel without the Commons in the case of the Mayor Sherifs Citizens and City of London thus related by Walsingham at large Misit Rex ad Cives Londoniarum petens ab eis mutuo mille libras cui procaciter et ultra quam decuit restiterunt Sed quendam Lumbardom volentem accommodare regi dictam summam male tractaveâ—unt veâ—beraverunt er paulominus occiderunt Quae cum Rex â—udisset iâ—aâ—us est valde et convocaas omnes regnipene Majorâ—s apperuit proterviam civium Londoniarum et de praesumptione conqueritur eorundem Qui omnes infesti Civibus propter diversas causas consulunt ut reprimatur citius eorum insolentia et superbia destruatur Eranc quippe tunc inter omnes fere nationes gentium clarissimi arrogantissimi et avarissimi ac male creduli in deum traditiones avitas Lolardorum sustentatores
Citizens Burgesses and Knights for the Parliament only by our Kings Letters and Charters not by the Peoples inherent Right of Election since none of them doe or can choose or send Knights Citizens or Burgesses to Parliament without the Kings Charters authorizing them and his Wrâ— to elect them first directed to them but only by power and vertue of them Therefore if the Lords sitting in Parliament be illegal unwarrantable because they sit only by Patents and Writs from the King the sitting of Knights Citizens Burgesses must be so too because they are elected only by the Kings Writ and the people enabled to elect them only by his Patents the power of creating Counties Cities Boroughs Knights being originally in the King as well as the power of creating Lords and Barons 3 Thirdly that the general election of the people is not absolutely necessary nor essential to the making of a Lawfull King Magistrate Counseller of State Peer Member of Parliament nor yet of a Minister as the Objectors falsly pretend who take it for granted as an infallible truth and Maxim of State For then it will necessarily ensue from hence 1. That God himself is no lawfull King or Governour over all the World and creatures in it because not chosen or elected by the General Voice of the Creatures and Mankind to be King over them and because the greatest part of men reject his Yoak Laws Government Exod. 5.2 Psal 2.1 2 3 4. Lu. 1.14.27 yet the Lord still reigneth as a Lawfull King over them by his own Right of Creatorship and Godhead Psal 95.3.5 Ps 96.10 Ps 97.1 Ps 99.1 Ps 100.3 Ps 103.15 Jer. 10.7 Dan. 4.32.34 Ps 10.16 Psal 22.28 Ps 48.7 2ly That Jesus Christ himself who is a King by birth-right Sonship and inheritance only being born King of the Jews sitting upon the throne of David his Father and reigning over the house of Jacob for ever by vertue of his Sonship only as Mat. 2.2 Lu. 1.32 33. Ps 2.6 7 8. Heb. 1.5 8 9. Acts 13.22 23 33. Ezech. 34.23 24. c. 37.24 25. Mar. 11.9.10 Isa 3.6 7. c. 11.1 2 c. Jer. 33. 15 17 20 21. c. 23.5 6. c. 30.4 Hos 3.5 Rev. 2.2 c. resolve was not chosen King â—is Saints Church Subjects people but chuseth them to be his Leiges John 15.16 Eph. 1.4 1 Pet. 2.9 Rev. 17.14 Deut. 14.2 Ps 132.13 Psal 135.4 shall upon this account be no lawfull King or Governor over his Saints Church and Subjects but a meer Usurper Intruder Tyrant over them as they stile Kings by Birthright not popular Election which is the highest blasphemy to affirm 3ly Then it will likewise inevitably follow That neither Moses Joshua Nehemiah Saul David Solomon nor any of the pious Kings of Juda nor Christ himself and other Kings who came to the Crown by Gods immediate designation or by descent birth-right and lineal succession were just lawfull Governors or Kings which none dare averr That the 70. Elders the Princes Nobles chief Captains Judges and Rulers under Moses and their Kings with other Governours and the Jewish Sanhedrim were no lawfull Judges Magistrates Counsellers of State or Members of their general Congregations Parliaments assemblies since we read of none of them chosen by the people but only designed by God himself or made created such by their Kings Governours who both called and summoned them to their general congregations assemblies judicatures as the premised texts and others evidence That Joseph Mordecai Daniel Shadrac Mesec Abednego were no lawfull Rulers or Magistrates because made such even by Heathen Kings not by the peoples choice And that none of the Levites Priests High Priests or Prophets under the Law were lawfull because none of them that we read of were made Levites Priests High Priests or Prophets by the peoples own choice but by descent and succession in the selfsame Tribe or by Gods own immediate call and appointment as John Baptist Christ himself the Apostles the 70 Disciples and others under the Gospel were made Ministers Apostles Evangelists preaching Elders without the peoples call yet our opposites dare not deny their Ministry and Apostleship to be lawfull being not of men but by Gods and Christs own call without the peoples Fourthly then it will from hence also follow that all Hereditarie Kingdoms which Politicians and Divines generally hold the best of Governments being the title of Christ himself to his kingdom all Patents Commissions in all Empires Kingdoms States of the world creating Princes Dukes Earls Lords and such like Titles of Honour whereby they are inabled in all Christian kingdoms to sit vote in their Parliaments and Assemblies of State for making Privy Counsellers Judges Justices and other Magistrates are void null illegal and so all the Laws Orders Ordinances made Acts done and Judgments given by them are void or erroneous because they were not chosen called to these publike places Counsels Judicatures by the people but by Emperors Kings and Supreme Governours of 〈◊〉 and what a confusion such a Paradox as this would â—â—eed in all our Realms in all States Kingdoms of the world let wise men consider and those fools too who make this Objection 5. Fifthly if there be no lawfull Authority in any State but from the Peoples immediate election then it will necessarily follow that Sir Thomas Fairfax is no lawfull General his Officers Councell of Warr no lawfull Officers or Councel yea Colonell and Lieutenant Colonell Lilburn no lawfull Colonel or Lieutenant-Colonel and ought not to use or retain these titles as they doe because none of them were called chosen to those places by the People or common Souldiers but made such by Commission from the Parliament General or Lords alone 6. Sixthly This paradox of theirs touching the peoples choice call to inable Peers to sit in Parliament or bear any office of Magistracy or Judicature is warranted by no law of God in old or new Testament both which contradict it by no Laws or Statutes of these Kingdoms Nations which absolutely disclaim it and enact the contrarie by no Original Law of Nature which as all Polititians and Divines assert and the Scripture manifests at first gave everie Father a Magistratical and Judicial rule power over his children progeny Family and made him a King Prince Lord over them without either their choice or call the Father and first-born of the family being both the King Prince Lord over it and Priest to it from the Creation till the Law was given as is generally acknowledged by all Divines as God himself is King over all the earth world as Creator and Father thereof 7ly It is very observable that God himself expresly denied to his own people Israel the free election of their Kings and Supreme Governors reserving the choice of them only to himself as his own Prerogative witness that notable text of
Deut. 17.14 15. When thou art come into the Land which the Lord thy God giveth thee and shalt possess it and dwell therein and shalt say I will set a King over me like as all the Nations that are about me Thou shalt in any wise set him King over thee WHOM THE LORD THY GOD SHALL CHUSE not the people Upon which account when the Israelites grew wearie of the Government of Samuel and his Sons all the Elders of Israel gathered themselves together and came to Samuel unto Ramah and said unto him Behold thou art old and thy Sons walk not in thy wayes Make or Give thou us a King to judge us like all the Nations not taking upon themselves the power to nominate and elect their very first King but referring the choice to Samuel himself Who thereupon prayed unto the Lord for direction therein After he prayed God commanded him to hearken to the voice of the people and to make them a King 1 Sam. 8.4 to the end yet such a one as God himself not Samuel or the people should appoint For soon after God told Samuel that to morrow about this time he would send him a man out of the Tribe of Benjamin and thou shalt anoint him to be Captain over my people Israel whereupon Saul coming to him at that time when Samuel saw him The Lord said unto him Behold the man whom I spake to thee of this same shall reign over my people then Samuel took a horn of oyl and powred it upon his head and kissed him and said Is it not BECAUSE THE LORD HATH ANOINTED THEE KING OVER HIS INHERITANCE Who being afterwards brought forth before all the people assembled at Mizpeh Samuel said to all the people See ye HIM WHOM THE LORD not I or you HATH CHOSEN that there is none like him among all the people Upon which all the people shouted and said GOD SAVE THE KING 1 Sam. 9.16 17. c. 10.1.17.23 24. So that God himself not Samuel nor the people elected and made Saul King over his own people which is further evident by the 1 Sam. 15.17.35 After which God rejecting Saul from being King he both elected appointed and anointed David to be King over Israel 1 Sam. 16.1.12 13. Psalm 78 70 71. 2 Sam. 7.8 1 Chron. 28.4 Whereupon all the Tribes after Sauls death came to David to Hebron made a League with him and anointed him King before the Lord upon this account that the Lord had said unto him Thou shalt feed my people Israel and thou shalt be a Captain over Israel 2 Sam. 5.1 2 3. acknowledging therby the choice of their King to be Gods peculiar right not theirs After which God himself to manifest the choice of their Kings to be not in the people but in his own disposal being but his Vicegerents Substitutes and sitting upon his throne to be Kings for the Lord their God 2 Chron. 9.8 Isay 44.28 Acts 13.22 setled the inheritance of the Crown and Kingdom of Israel in David his Sons and posterity for ever appointing Solomon his Son immediately to succeed him and making him King over his people as is evident by the 2 Sam. 7.8 to the end 1 Kings 5.5 c. 6.12 c. 8.20 1 Chron. 22.20 c. 28.4 5 6 7. 2 Chron. 1.8 9. c. 2.11 Psal 89.3 4 20. to 38 2 Chr. 23.3 c. 6 16. c. 7.18 1 Kings 15.4 5. Jer. 33.15.17.20 21. c. 23.5 6. c. 30.9 Ezech. 34.23 24. c. 37.24 29. Hos 3.5 Lu. 1.32 33. Upon which account afterwards when the ten Tribes revolted from Rehoboam and the House of David against Gods institution and made Jeroboam their King God thereupon chargeth it upon them as a high incroachment upon his prerogative in these terms Hosea 8.4 They have set up Kings but not by me they have made Princes and I knew it not And hereupon Abijah heir by hereditarie succession to David thus charged Jeroboam and all Israel with rebellion against God and Rehoboam therein 2 Chron. 13 5 6 7 8. Ought you 〈◊〉 to know THAT THE LORD GOD OF ISRAâ—â—AVE THE KINGDOM OVER ISRAEL TO â—D FOR EVER EVEN UNTO HIM AND TO HIS SONS BY A COVENANT OF SALT But Jeroboam the Son of Nebat the Servant of Solomon the Son of David is risen up AND HATH REBELLED AGAINST HIS LORD And there are gathered unto him vain men the children of Belial and have strengthned themselves against Rehoboam the Son of Solomon when Rehoboam was young and tender hearted And now you think TO WITHSTAND THE KINGDOM OF THE LORD IN THE HANDS OF THE SON OF David and ye have a great multitude c. O children of Israel fight ye not against the Lord God of your Fathers for YOV SHALL NOT PROSPER And God smote Jeroboam and all Israel before Abijah the right heir and Judah and God delivered them into their hand And Abijah and his people slew them with a great slaughter So there fell down slain of Israel five hundred thousand chosen men The greatest slaughter we ever read of in one battel in sacred or prophane Histories If then God allowed not the free election and nomination of Kings and Supreme Governours to his own people of Israel their Tribes or Elders but reserved it only to himself as his own peculiar prerogative which they might not intrude upon without high presumption and exemplarie punishments as the forecited Scriptures with Iudges 2.20 Acts 13.20 21 22 23. undeniably evidence By what Law of God or Nature any other vulgar rabble or people of God can now challenge this as their proper birthright and natural inherent due to elect all their Kings all their Supreme or subordinate Officers and all Peers of Parliament especially in an hereditarie kingdom transcends my reason to comprehend unless they will blasphemously tax God himself for injuring his own peculiar people in usurping upon and depriving them of this their Natural right and freedom 8ly The Scripture is most express and positive That it is God who removeth Kings and setteth up Kings Dan. 2.28 That the God of Heaven setteth up kingdoms and Kings That the most high ruleth in the kingdoms of men and giveth them to whomsoever he will Dan. 2.44 c. 4.25.34 35. That promotion cometh neither from the East nor from the West nor from the South but God not the people is the Judge he pulleth down one and setteth up another Psa 75 6 7. He looseth the bond of Kings and girdeth their loins with a girdle He powreth contempt upon Princes and weakneth the strength of the mighty Job 12.18 19. Whereunto God adds Prov. 8.15 16. By me Kings reign and Princes decree Justice By me Princes rule and Nobles and all the Judges of the earth Hereupon Samuel used this speech to King Saul 1 Sâ—m 15.26.28 The LORD hath rejected thee from being King over Israel The LORD hath rent the kingdom of Israel from thee this day and hath given it to a neighbour of thine better than thou Yea the Apostle Rom.
this King who as some erroniously assert first summoned Knights Citizens and Burgesses to our Parliaments In the Parliamentary Councel at Clarindon under King H. the 2. An. 1164. Jo. de Oxonia by the Kings command there present sate President Presentibus etiam Archiepâ—scopis Episcopis Abbatibus Prioribus Comitibus Baronibus et Proceribus regni wherein they made a Recognition of the customs and liberties of his Grandfather King Henry the 1. and other his Ancestors which ought to be observed by all persons within the Realm by reason of the discords often happening between the Clergy and temporal Justices and great men of the Realm These they reduced to 16 Articles very much ecclipsing the Popes and Bishops ecclesiastical Jurisdiction This Recognition the Archbishops Bâ—shops Abbots Priors Clergy cum Comitibus Proceribus et Baronibus cunctis una voce firmly promised in the word of truth bona fide to observe and keep to the King and his heirs for ever without male engin The 11 of these Articles runs thus Archiepiscopi et Episcopi sicut caeteri Barones debent interesse Iudiciis Curiae to wit of Parliament cum Baronibus quousque perveniatur in judicio ad dâ—minutioneÌ„ membrorum vel ad mortem Which proves the judicial power of Parliaments to be then only in the Lords and Barons In the year 1170. the 16 of Henry â— on the Feast of St. Bernard Rex magnum celebravit Concilium Londoniis cum Principibus et Magnatibus curiae suae de coronatione Henrici filii sui So Hoveden Anno 1172. Rex Angliae Henricus convocatis regui Primoribus apud Northamptoniam renoveâ—unt Assisâ—m Clarindoniae eamque praecepit observari In the year 1175. King Henry the second and his son held a great Council at York where the agreement between him and the King of Scots there present with most of his Bishops Abbots and Nobles was read and confirmed before the King and his Son the Arehbishop of York the Bishop of Durham Comitibus Baronibus Angliae The sâ—me year Rex magnum congregavit coneslium â—pud Windeshores in octavis Sancti Michaelis praesentibus Rege filio Richardo Cant. Archiepiscopo Episcopis Angliae Laurentâ—o Dubliâ—ensi Archiepiscopo Praesentibus eâ—iâ—m Comitibus et Baronibus Angliae In which some controversies in Ireland were ceâ—cided In the year 1176. King Henry coming to Noâ—ingham on the feast of Sr. Pauls conversion ibi celebravit Magnum Concilium de statute regni sui et coram rege filio suâ— Archiepiscopis Episcopis Comitibus et Baronibus Regnâ— sui Communi omnium Concilio divisit regnum suum in sex partes per quarum singuâ—aâ— tres Justiciarios itinerantes constituit whose names Commissions and Articles are there at large recorded And the same year this King held another Great Council at London in which the King Consilio universorum Episcoporum Comitum et Baronum Regni concessit Regi Siciliae filiam suam In the year 1177. King Henry the 2. summoned a Great Councâ—l to determin the great Controversy between Sanctius King of Navarr and Alphonsus King of Castile whose Advocates propounding and debating their cases in the presence of the King and of his Bishops Earls and Barons the King habito cum Episcopis Comitibus et Baronibus nostris cum deiiberatione consilio drew up by their advice an award between them under his great Seal recorded at large in Hoveden who writes Comites et Barones Regalis Curiae Angliae adjudicaverunt plenariam utrique parti supradictae quae in jure petita fuerâ—nt fieri restitutionem The like they did in the Council of Northampton in other cases held the same year Anno 1188. King Henry the 2. on the 3d of February held a Parliamentary Council at Gaintington about 8 or 10. miles from Northampton where convenerunt unà cum Rege PRAESULES ET PRINCIPES REGNI de defensione sacrosanctae terrae Jerosolymae tractaturi where after long debate they made 8. Statutes concerning that voyage The very same year the Kings of England and France on the 10. of February came to a conference about their Voyage to Jerusalem cum Archiepiscopis Comitibus et Baronibus Regnorum suorum as they had formerly done in the same manner and place An. 1173. and as they did afterwards An. 1189. Cum Archiepiscopis Episcopis et Baronibus suis So as during King Henry the seconds whole reign we read of no Knights Citizens and Burgesses electcted by the people present in our Parliamentary Councils but only the King Prelates Earls Barons and Nobles alwaies mentioned by name and Judges in them Only I find this one expression in Hoveden An. 1188. Rex statim apud Gaintington congregavit Magnum Concilium Episcoporum Abbatum Comitum et Baronum et aliorum multorum tam Clericorum quam Laicorum but that these were Knights Citizens and Burgesses elected by the people and not persons particularly summoned and nominated by the King himself to be Assessors Collectors of the Tenths there to receive their instructions for it which is most probable cannot be thence inferred ubi in publica audientia recitari fecit omnia supradicta capitula quae constituerat de Cruce capienda et tunc Dominus Rex misit servientes suos Clericos Laicos per singulos Comitatus Angliae ad Decim as colligendas most likely the aliorum muliorum tam Clericorum quam Laicorum present at this great Council secundum praedictam Ordinationem in terris suis transmarinis constitutam to wit at Cenomanum ubi consilio suorum to wit of the Archbishops Bishops Earls and Barons there with him ordinavit quod unusquisque decimam redditorum et mobilium suorum in eleemo sinam dabit ad subventionem terrae Jerosolymitanae hoc anno exceptis armis equis vestibus militum c. Sed de singulis urbibus totius Angliae fecit elegi omnes ditiores videlicet de Londonio 200 de Eboraco 100 de aliis Urbibus secundum quantitatem numerum eorum fecit omnes sibi praesentari diebus locis statutis de quibus caepit Decimam mobilium suorum secundum aestimationem virorum fidelium qui noverant redditus et mobilia eorum Si quos autem invenisset rebelles statim fecit eos in carcerari et in vinculis teneri donec ultimum quadrantem persolverent similiter fecit de Judaeis terrae suae unde inaestimabilem sibi acquisivit pecuniam Andrew Horn in his Mirrour of Justices in the reign of King Edward the first writes That our Saxon Kings divided the Realm of England after it was turned into an heritage into 38 Counties over which they set so many Counts or Earls and although the King ought to have no Peers in his land yet for that if the King should do wrong to or offend any of his people neither he nor any of his Commissaries ought to
Commons can do nothing at all in Parliament since all Laws Ordinances Taxes Votes that are valid and binding to the people must pass Both Houses and have the Lords as well as Commons assent as they resolve in sundry printed Remâ—nstrances Declarations mentioning Both Houses of Parliament â—nd their concurrence to all things therein concluded and the King likewise in his The Lords and Commons in their Declaration of the 5th of August 1645. to the High and Mighty States General of the United Provinces printed in A Collection of Ordinances of Parliament p. 699 700. complain thus to them of this misinformation of their Ambassadors June 20. 1645. The Lower House hath caused the Chamber where they sit in to be hanged with Tapistry which was heretofore never so It is said it is done that the Lords changing their Chamber shall come and sit in the House of Commons and so to be both together reduced into one body and the better agree by number of Votes When heretofore the Parliament was full then the Lords Chamber did consist of about 126. or more Votes and the Lower House of above 500 Votes and they have alwayes been in several Houses and the one could not conclude anything for a Resolution of the King unless the other House did also consent but now the King is absent and the Vpper House should now be melted into the Lower and in the Common Assembly of about 26 Lords which are now here and some 200 Commoners so the most Votes should rule and Ordain all matters Thus much we are told and that it tends to shun many disputes and hindrances which happen in their resolution every day The Lords remain constant to maintain their Rights and say this is to take away all their Right and prerogative taking away their House and so to bring all the power under the Commons â—o which Misinformation the Commons and Lords too returned this Answer to the States My Lords the Commons are charged with endeavour of altering the fundamentals of Parliament by taking away the House of Péers and melting it into the House of Commons when as there was never any debate in the House of Commons concerning aâ—y such matter nor was the same ever intended or desired by the said House After this the whole House of Commons in their Declaration of the 17 Aprilis 1646. of their true Intentions concerning the antient and fundamental Government of the Kingdom thus positively declared to all the world That our true and real Intentions are and our endeavours shall be to maintain the antient and fundamental Government of the Kingdom By King Lords and Commons that we have only desired that with the consent of the King such powers may be setled in the two Houses without which we can have no assurance but that the like or greater mischiefs which God hath hitherto delivered us from may break out again and engage us in a second and more destructive warr Seeing then the very Commons House themselves in these and sundry other printed Declarations have so fully so frequently declared resolved the Lords antient undoubted Hereditarie right and interest to sit vote and assent unto all Laws Ordinances Proceedings in Parliament as the Great Council and Counsellors of the kingdom and acknowledged this their Privilege and the House of Peers to be a part of the fundamental Constitution and Government of this kingdom which they are resolved to maintain and not to alter and that they never intended nor desired much less endevoured the altering the fundamentals of Government by taking away the House of Lords How any Commoners Levellers or others can now dare to question deny or oppugn this their hereditary fundamental right of Peerage or attempt the actual abolishing of the House of Peers without the highest Impudency Treachery Absurdity and incurring the Crime of a New Gun-powder Treason to blow up the House of Lords afresh which the old Jesuitical Popish Gun-powder Traytors only attempted but could not accomplish transcends my understanding to comprehend 11ly The General Council of the Officers of the Army in their Declaration made at Windsore about January 1647. presented to the Lords House by Sir Hardress Waller asserted The hereditary Legal Right of the Lords and their House in Parliament and the Armies fixed resolution to uphold and maintain them and their Privileges with their swords And if John Lilburns printed Letter to the Speaker July 8 1648. p. 26 27. may be credited Lieutenant General Cromwell himself protested to him and others at the Lord Whartons house and that upon his conscience in the sight of God That the Lords had as true a Right to their Legislative and Iurisdictive power over the Commons as he had to the coat on his back and that he and the Army would support the same How dare then any Levellers or Officers in the Army or elsewhere to question or attempt to abolish this their undoubted right to sit vote and exercise a legislative and Juridical Jurisdiction in Parliament and that over Commons themselves in cases which concern their Peerage and in cases not triable properly elswhere but only in Parliament 12. Twelfthly These very Sectaries and Levellers themselves have acknowledged asserted this Right Power of the Lords all along this Parliament till of late as appears by their several Petitions and Complains to them upon sundry occasions heretofore by their resorting to them for Justice against Strafford Canterbury and others Yea Jo. Lilburn himself till his late quarrel with them not only acknowledged their very power of Judicature but highly applauded their Justice in his own cause Petitioning and suing to them not onely for reversal of the sentence against him in Starchamber but likewise for damages and reparations against his Prosecutors pleading his cause by his Counsel before them as his proper Judges who thereupon by judgement of the House vacated the Decree against him as illegal voted him Damages and passed him an Ordinance for the recovery and levying thereof all which he himself hath published in sundry of his printed Pamphlets wherein he acknowledgeth and extolleth their Justice Take but one passage for all in his Innocency and Truth justified p. 74 75. If I be transmitted up to the Lords I confidently believe I shall get forward out of the former experiences of their Justice there I will instance two particulars First when I was a Prisoner in the Fleet and secondly May the fourth one thousand six hundred forty one The King accused me of High Treason and before the Lords Bar was I brought for my life where although one Littleton servant to the Prince swore point blank against me yet had I free liberty to speak for my self in the open House And upon my desire that Master Andrews also might declare upon his Oath what he knew about my business it was done And his Oath being absolutely contradictory to Master Littletons I was both freed from Littletons malice and the
est satisfactum The Pope hereupon taking more boldness than before to trample the English Prelates Clergy under his feet fleece them imperiose solito imperiofius Praelatis Angliae demandavit ut in Anglia omnes beneficiati in suis beneficiis residentiam facientes tertiam partem bonorum suorum Domino Papae conferrent non facientes residentiam dimidiam multis adjectis durissimis conditionibus praedictum mandatum restringentibus per illum verbum et adjectionem detestabilem NON OBSTANTE quae omnem extinguit justitiam praehabitam The Bishops assembling in convocation to exact it the King thereupon by his Nobles advice and instigation sent Sir John de Lexeton a Knight and Lawrence St. Marin his Clark to them strictly commanding them in the kings behalf not to consent by any means to this contribution demanded by the Pope to the desolation of the English kingdom The next year 1247. Vrgente Papali mandato redivivo de importabili contributione Papali praetacta ad quam Episcopi in generali Concilio Clerum infeliciter obligarent fecit Dominus Rex MAGNATES SUOS nec non et Angliae Archidiaconos per scripta sua Regia Londini convocari Quo cum pervenissent die ptaefixo Episcopi omnes sese gratis absentarunt ne viderentur propriis factis eminus adversari Sciebant enim corda omnium usque ad animae amaritudinem sauciri Convenerunt tunc ibidem Archidiaconi Angliae nec non et totius regni Cleri pars non minima CUM IPSIS MAGNATIBUS conquerentes communiter super intolerabilibus frequentibus exactionibus Domini Papae pro quibus Dominus Rex non mediocriter compatiendo tristabatur Res enim publica periclatabatur et commune negotium regni totius agebatur imminebat tam populi quam cleri inanis desolatio et cunctis temporibus inaudita After long consultation the King and Nobles by common advise resolved to send a remonstrance of all their grievances together with Letters in the name of the whole Parliament and kingdom to the Pope and his Cardinals speedily to redress them which Letters they sealed with the Common Seal of the City of London thereby obtained some shew of redress of their grievances which the Nobles further prosecuted and complained of in another Parliament the selfsame year Dominus Rex comperiens regnum suum enormiter undique periclitari by the Popes exactions taxes oppositions jussit OMNEM TOTIUS REGNI NOBILITATEM CONVOCARI ut de statu ipsius tam manifeste periclitantis Oxoniae contrectarent Praelatos autem ad hoc Parliamentum vocavit anxius quia videbat eos tam frequenter per Papulâ—s extortiones depauperari quod frequentia consuetudinem regni ruinam manifeste minabatur Sperabatur igitur communiter aliquod salubre Ecclesiae et universitati ibi statuendum quod tamen omnes fefellit through the Prelates and Clergies cowardise and the kings overmuch compliance with the Pope the Nobles only continuing constant in their oppositions against these papal exactions and enormities being more zealous for the Churches Clergies Prelates liberties against the Popes intolerable exactions oppressions incroachments than they themselves and the only persons who manfully and constantly maintained them when the King Prelates and Clergy through fear cowardise and treachery betrayed and deserted them Anno 1264. Pope Urban being much incensed against the BARONS spoiling the goods of Ecclesiastical persons who were Aliens advanced by his provisions said That he desired to live no longer but till he had subdued the English whereupon he sent a Legate towards England a great Person to wit Sabin a Bishop Cardinal to interdict the Land and excommunicate THE BARONS the oppugners of his Provisions But when he would have entred England he found he could not safely do it by reason of the Barons resistance Whereupon citing some Bishops of the Realm first to Ambayonne and afterwards to Bononia Sententiam excommunicationis et interdictionis super Civitatem Londoniae et 5. Portus necnon quasdam personas illustres ET NOBILES REGNI fulminatum commisit exequendam At illi Sententiam illam contra justitiam illatam attendentes appellarunt ad Papam ad meliora tempora vel ad generale Concilium necnon et supremuÌ„ judiceÌ„ certis de causis et rationibus commendabilibus Quae postea appellatio in Anglia congregato apud Radingum Concilio recitata est et ab Episcopis et Clero approbata et executa Interdictum autem licet inviti suscipientes a Legato praedicti Episcopi secum detulerunt Sed cum applicuissent Doveriae scrutinio ex more in portu facto intâ—â—â—eptum est a Civibus et in minutias dilaneatum jactatur in mare So little did they then regard and so much detest and scorn the Popes unjust Interdict in so just a cause An. 2 E. 1. Rot. Fin. m. 9. in Sched Cook 4 Inst p. 13. Pope Gregory by his Letters demanding the rent of 1000. marks by the year of K. Ed. the 1. reserved for England upon his regranting the Realm to King John the king writ thus to him Se sine PRAELATIS ET PROCERIBUS REGNI NON POSSE RESPONDERE quod jurejurando in coronatione sua fuit astrictus QVOD JURA REGNI SUI SERVARET ILLIBATA nec aliquid quod Diadema tangit Regni ejusdem absque ipsorum requisitus consilio facere And the Parliament being ended he could doe nothing without them who afterwards gallantly opposed his usurpations as will appear by this following president King Edward the 1. in the 29. year of his reign being summoned by the Pope by himself or his Proctors to declare his right to the Realm of Scotland in his Court at Rome where he should receive justice concerning it The King thereupon called a Parliament to consult about it where he refused to return any answer by himself but committed it to the Earls and other Lords of the Land to return the Pope an answer thereunto Who making a large and learned Historical Remonstrance of the subjection of Scotland and her Kings to the Kings of England and of their Homage done to them in all ages as their Soveraign Lords sent it to the Pope with this notable Letter signed as Mat. Westminster and Sir Edward Cook inform us with no less than 100 Seals of Arms of Earls and Barons in the name of the whole Parliament and Kingdom Sancta Romana Ecclesia per cujus ministerium fides Catholica in suis artibus cum ea ut firmiter credimus et teneamus maturitate procedit quod nulli praejudicare sed singulorum jura conservari velit illaesa Sane convocato nuper per Serenissimum Dominum nostrum Edwardum Dei gratia regem Angliae illustrem Parliamento apud Lincolniam generali idem Dominus noster quasdam literas Apostolicas quas super certis negotiis conditionem et statum Regni ex vestra parte receperat in medio exhiberi ac
elect such other persons to represent assent and vote for them in Parliament in whom they most confided Sixthly our Peers in Parliament though they there serve for the good of the whole Kingdom which hath always trusted to them in matters of Counsel Judicature and making Laws yet they represent no persons but themselves only or their families Tenants Friends and Allies which depend upon them and bear their own expences which are so great and chargeable that the Abbot of St. James without Northampton in the Parliament of 12 E. 2. and the Abbot of Leicester in the the 26 of E. 3. being summoned to Parliament petitioned and procured themselves and their successors to be exemped from any future summons to and attendance in the Lords House as Barons of the Realm both because they held no lands of the King by Barony but only in frank almoign and their Predecessors had not formerly or usually been summoned to Parliaments sed vicibus interpolatis only And likewise because it would tend to the great grievance and loss of them and their houses and much impoverish them by reason of the great expence it would bring upon them One Peer and his retinue expending more every Parliament than the wages of 40 or 50 Knights and Burgesses amount to Wherefore there is no shadow of reason why the people should elect them since they doe not represent them nor pay them wages as they doe to their Knights Citizens Burgesses who serve for and represent them Wherefore their Levelling Oppugners may as well argue That our Nobles ought to be elected by the people to their Honors Lands Estates which descend unto them from their Ancestors not from the common people as that they ought to sir in Parliament by the peoples election only to represent themselves in their own right not the people And that the Knights of the Shire ought to be elected to their dignity of Knighthood which the King only confers on them or to their Lands and Freeholds which they enjoy in their own right because they are elected by the Free-holders to sit in Parliament in their right who elected them nor their own alone which Barons doe not 7ly On these grounds the suppressing debasing captivity or slaughter of the Princes Lords and Nobles of a kingdom or Nation is by God himself defined to be an immediate forerunner concomitant cause of the Kingdoms Nations ruine and slavery and a matter of great lamentation Ezech. 19.1.14 c. 17.12 Lam. 1.6 c. 2.2 c. 5.12 Prov. 19.10 c. 30.21.22 Eccl. 10.5 7. Isay 3.4 c. c. 34.11 12 13. c. 40.23 c. 43.28 Jer. 4.9 c. 27.20 c. 29. c. 25.18 19. c. 50.35.41 51 55. c. 52.16 Hos 7.16 Amos 2.15 c. 2.2 3. 2 Kings 24.14 Mich. 3.7 2 Chron. 24.23 Jer. 24.8 9. And the continuing of Kings Princes and Nobles in honour and power in any kingdom and nation are reputed and resolved by God to be the greatest honour happiness defence safety and preservation of that kingdom and people Jer. 17.24 25. c. 22.4 Eccles 10.17 Jer. 30.21 Psal 68.27 28. Prov 8.15 16. Isay 32.1 1. Chron. 23.2 c. c. 28.1 c. c. 29.24 25. Gen. 17.6.16 c. 35.11 2 Sam. 11 12. 1 Chron. 14.2 c. 28.4 5. c. 2 Chron. 2.11 c. 9.8 1 Kings 11.32 36. 2 Chron. 21.6 7. 2 King 8.18 19. 1 Kings 15 45. 2 Chron. 23.3.11.20 21. c. 9.26.27 Numb 24.7 Ezech. 37 22 29. Mich. 2.13 c. 4.8 Therfore they cannot be rejected suppressed by us now without apparent danger ruine and desolation to our kingdom whatever frantick Levellers and others fancy to the contrary who would be more than Kings and Lords themselves over the Nation could they once suppress both King and Lords as they design and endeavour By all which premises it is most apparent That our Lords and Barons sitting voting in Parliament who if you take them poll by poll have in all ages been more able Parliament-men States-men in all respects than the Commons though chosen by the people who alwayes make not choice of the best and wisest men as experience manifests is not only just lawfull in respect of Right and Title but originally instituted upon such grounds of Reason Justice Equity Policy as no rational understanding man can dislike or contradict but must subscribe to as necessary and convenient and so still to be continued supported in this their Right and Honour to moderate the Excesses Encroachments both of King and Commons one upon the other and keep both of them within their just and antient bounds for the kingdoms peace and safety The rather for that the very Act made this Parliament for the preventing of inconveniences happening through the long intermission of Parliaments not only enacts and requires ALL the Lords and Barons of this Realm to meet and sit in every Parliament under a penalty but likewise prescribes an Oath to the Lord Keeper and Commissioners of the Great Seal under severe penalties to send forth Writs of Summons to Parl. TO THEM ALL and in their default enables and enjoyns the Peers of the Realm or any twelve or more of them to issue forth Writs of Summons to Parliament under the Great Seal of England for the electing of Knights Citizens and Burgesses which Act will be meerly void and nugatory if their Votes and Right to sit in Parliament be denyed or the House of Peers reduced to the House of Commons which this very Statute doth distinguish Now whereas our whimsical Lilburnists and Levellers object that the Lords have no right to sit or vote in our Parliaments because they are not elected as Knights and Burgesses by the people under which Notion alone when thus elected they will admit them a place and vote in the Commons house but not otherwise I must inform these Ignoramusses that by the Laws Statutes of our Realm and the custom resolution of our Parliaments the Earls Lords and Barons of the Realm are altogether uncapable of being elected Knights or Burgesses to serve in Parliament and their elections as such meerly void and null in Law to all intents This is most apparent 1. By the very words of the writs of Summons to the Lords whereby they are summoned Nobiscum cum caeteris Praelatis Magnatibus et Proceribus dicti Regni nostri colloquium habere tractare c. vestrumque consilium impensuri c. not to treat conferr and consult with the Knights Citizens and Burgesses 2. By the express words of the Writs for the electing of Knights Citizens and Burgesses which have the same clause and then enjoyn the Sherifs to cause to be elected and returned duos Milites magis idoâ—eos discretos Comitatus praedicti de qualibet Civitate duos Cives de quolibet Burgo duos Burgenses de discretioribus magis sufficientibus c. ad faciendum et consentiendum hiis quae tunc c. Which disables them to elect any Lords or
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
in summo silentio Rex autem interius cum Principibus sedens pro tribunali Euntes ait DISCERNITE QUID PERJURUS CONTUMAX PRODITOR DEBEAT SUSTINERE Itur JUDICATUR Et a quo vel qualiter pronunciandum esset JUDICIUM informatur Processerunt tandem a Rege Comites Barones cum turba multa quorum primi praecipui erant Robertus Leicestriae Reginaldus Comes Cornubiae Qui cum Archiepiscopo quasi improperantes retulissent quae et quanta ei bona Dominus Rex contuliâ—set tandem Comes Leicestriae qui erat dux verbi caepit subâ—iliter inflectere sermones quasi ad judicium Curiae in Archiepiscopum proferendum Praeâ—entiens hoc Archiepiscopus mox non expectaâ—o judicio surgit protestans non esse eorum Archipraeâ—ulem suum judicare de crimine Non est inquit in eum ferenda sententia qui judicem superiorem appellavit etiam si Laico liceret Episcopum judicare Unde tibi Comes Leicestriae potestate mihi a Deo collata ut filio Ecclesiae praecipio ne in patrem tuum spiritualem judicium proferre praesumas Verum mox improperatum et inclamatum a nonnullis est quod tanquam Perjurus et Proditor a Curia discederet Ipse vero sic se vertens et austero vultu respiciens râ—spondit quod nisi ordo sacerdotalis obstaret et si sibi fas esset in armis bellicis a Perjurio Proditione se contra ipsos defenderet His dictis a Curia discessit et per aulam transiens probris multis a Curialibus affectus est Cum autem januam clausam repperisser et jâ—nitor puero â—erberando intendisset accurrens quispiam clavem repperit januam apperuit patrem demisit sic pater patriae manus impiorum evasit c. King Richard the 1. Anno 1189. going to the holy Warrs made William Longchamp Bishop of Ely not only his Chancellor and Chief Justice but the chief Protector and Guardian of the whole Realm who having obtained a Legatine Power also from the Pope and getting the Militia with most of the Kings Castles into his hand proved a most unsufferable Tyrant to the Nobility Gentry Laity and Clergy so oppressing domineering over their persons Liberties Estates imprisoning taxing disseising spoyling them of their Offices Castles Lands Privileges Estates at his pleasure and over-awing them with Troops of Horse Garrisons New Governors set over and quartered in every County and with his great Guards of armed horse which he constantly kept about his person that Earl John the Kings brother the Nobility Prelates and People being no longer able to indure his exorbitant insolency intollerable Pride Oppressions Rapines Exactions and transcendent Tyranny raised great forces against him to regulate his Excesses and bring him to Justice Whereupon he being somewhat terrified in the 2. year of King Richard the 1. Anno 1191. Earl John and the Bishops with the Prelates Earls and Nobles of the Realm assembled in a kind of Parliamentary Council came to an agreement touching the future settlement reformation Peace and Government of the Realm and preventing all future tyranny and oppression which was drawn up in writing published subscribed and sworn to be inviolably observed both by the Earl John and Chancellor and by 14. other Earls and Barons on either side One of the Articles of this Agreement recorded at large by Roger de Hoveden was this Concessum est quod Episcopi Abbates Comites Barones Vavasores et liberi tenentes non ad voluntatem Justiciarium vel Ministrorum Domini Regis de terris catallis suis disseisientur sed judicio Curiae domini Regis secundum legitimas consuetudines et Assisas Regni tractabuntur vel per mandatum domini Regis agreeable to Magna Charta c. 29. No sooner had the Chancellor taken his Oath but his forein forces he had privily sent for ariving in England he presently violated it and played the Tyrant worse than before commanding the Kings own Brother Geoffry Archbishop of York to be apprehended at Dover in the very Church dragged out violently in his Archiepiscopal robes from the Altar and then thorough the dirty streets in the sight of all the people who cried out after the Chancellors servants who thus abused him O ignavi quare ita ducitis illum quid mali fecit Archiepiscopus est Regis filius Regisque frater But they taking no notice of their clamors carryed him to Dover Castle and there kept him Prisoner till he was thence released by Earl Johns command The Archbishop coming to London complained to Earl John the Bishops and other Nobles of the injury done to him by the Chancellor ut Cancellurius juri staret in CURIA REGIS super injuria illa quam Archiepiscopo Eboracensi feâ—erat et Hugoni Dunelmensi Episcopo Quod cum ipse Cancellarius facere de die in diem distulit Eodem tempore ad instantium Comitis Johannis Convenerunt apud pontem de Loedone inter Radingum Wyndleshores die Sabbathi pâ—oxime post festum Sancti Michaelis ad Colloquium MAGNATES ANGLIAE de arduis magnis Regis regni negotiis tractaturi The next day the Archbishop and Bishops who all came to this Parliamentary Assembly meeting at Reading excommunicated all those who were aiding and assenting to the imprisonment of the Archbishop After which Comes Johannis Archiepiscopus Rothomagensis Episcopi Principes Regni statueruâ—t illi diem peremptorium apud Ridinges Ad diem autem illum venerunt illuc COMES Moretonii fere omnes Episcopi Comites Barones Regni Et post diem peremptorium moram fecerunt ibi expectantes adventum Cancellarii sed ipse venire noluit nec nuntium mittere Deinde Comes Johannes et Episcopi Barones qui cum eo erant paraverunt se Londoniâ—s ire ut ibi in Majorâ— audientia Londinensium fruerentur consilie quid eis faciendum esset de Cancellario qui sic conturbaverat regnum juri stare noluit The Chancellor hereupon flying from Windeshores into the Tower of London for shelter Comes Johannes fere omnes Episcopi Comites BARONES Angliae eadem die scil 3. die post octavas Sancti Michaelis intraverunt Londonias Et in crastino praedistus Johannis frater Regis Archiepiscopus Rothomagensis omnes Episcopi Comites Barones cives Londinenses cum illis convenerunt in atrio Ecclesiae Sancti Pauli where sitting together as in a Great Parliamentary Council and Court post longos tractatus Ricardo regi fidelitatem juraverunt Imprimis Comos Johannis deinde duo Archiepiscopi et omnes Episcopi quotquot convenerunt Comites Barones Deinde die Jovis proximo habitum est Colloquium in Orientali parte turris Londinensis praesentibus MAGNATIBUS praedictis Accusabant praedictum Cancellarium in multis praecipue in injuriis quas fecit Domino Eboracensi Archiepiscopo Domino Dunelmensi Episcopo
Clergy being thus put out of the Kings Protection and thereby disabled to sue or sit in Parliament were secluded the Parliament house the King holding the Parliament with the Temporal Lords and Commons alone and making valid good Acts and Ordinances therein in this case without the Clergy as Bishop Jewel M. Crompton Dr. Bilson and others affirm which Dr. Standish averred he might lawfully doe before the Kings Council and a Committee of Lords and Commons in the Parliament of 7 H. 8. Keilwayes Reports f. 184. b. Sir Edward Cooke being of the selfâ—ame opinion in his 4 Institutes p. 25. citing other Presidents of this kind to prove that Acts may be made without the Bishops as 15 E. 2. Exilium Hugonis le Dispenser 3 Rich. 2. c. 3.7 Rich. 2. c. 12.11 R. 2. n. 9 10 11. 21 R. 2. n. 9 10. 1 H. 5. c. 7.6 H. 6. n. 27. Peter de Gaverston a deâ— oiâ— lascivious person for his misdemeanours and corrupting Prince Edward with whom he was educated from his infancy in the year 1306 in a Parliament then held by King Edw. the 1. assensu Communi Procerum fuerat exilio penpetuo condemnâ—tus This King was no sooner deaâ— and the Crown descending to King Edward the 2. but he presently recalled Gaverston from his exile against the will of the Lords made him Earl of Cornwall and gave him the Isle of Man An. 1307. the very first year of his reign He being more high in the Kings favoâ—r more glorious in his apparel and insolent in his behaviour than any other thereupon Anno 1309. Regni Proceres et Nobiliores videnâ—es se contemni Petrum de Gaveâ—on cunctis anteferri accessâ—runt ad Regem humiliter rogantes ut Baronum suorum vellet consiliis tractare Regni negotia quibus a pericuâ— sibi imminentibus non solum cautior sed tâ—tior esse possit Quorum votis facie tenus Rex annuitâ— Parliamentum Londini instituâ—t fiori ad quod omnes qui interesse debebant mark it venire mandavit The Parliament there assembling Anno 1310. Decreto Parliamenti ad Baronum instantiam Petrus deâ— Gaverâ—on in Hyberniam Exilio relegatur No sooner was the Parliament ended but the King caused special writs to be written and sealed in his own presence for recalling Gaverston from his exile and restoring him to his Lands which writs he took into his own hands for a time and then sent them to the Sheriffs with special command to see them duly executed under grievous penalties In these Writs he recites that Mounsieur Piers de Gaverston Earl of Cornwal was of late exiled out of ouâ— Realm against the Laws and Vsages of the said Realm which he was bound to keep and maintain by the Oath he took at his Coronation For which cause he did out of that common right and justice which was due to all his Subjects recall and restore him without the Lords against their wills as the writs in the Clause Rolls inform us Thomas of Walsingham thus relates the manner of it and ill consequence thereof to Gaverstons ruine in these words Soluto Parliamento cunctis gaudenter ad sua disced nâ—ibus rex remansit tristis cogitans disquirens cum privato suo concilio qualiter posset ipsum ab exilio revocare Suggestumque fuit 〈◊〉 qâ—od si sororeiâ— Comitis Gloverniae qui pro â—unc 〈◊〉 jâ—venis â—oâ—i 〈◊〉 sub tuâ— Regis praeâ—aâ—o Pet◠〈…〉 coâ—ugeâ— posset ipsum intrepide revocare 〈◊〉 hiâ—s audicis cum omni festinatione missis nuneilâ—â—â—cersivit eâ—m inter ipsum sororem Comicis fecit celebrati nuptiae licet multum Gomiâ—i displicerent Eâ—iâ—de Petrus superbiens plus solito regni nobiles vilipendit subsannabat Proceres mediocresque despexir Et quia Rex permiserat sibi facultaâ—em pene facienâ—i quâ—e vellet quantum ad ea quae respiciebant personam regiam caepit sicut prius thesaurum regis colligere negotiatoribus ultra mariniâ— accommo lare non ad usus quidem regios sed suos proprios Qui in tantum expilavit regem ut non haberet unde solveret expensas solitas domus suae Regina vero tantum rebus necessariis arctabâ—tur ut regi Franciae patri suo lachrymabiliter quereretur honore debito se privatam Barones igitur considerantes quod eorum tollerantia Petro malignandi praestabat auâ—atiam domino regi denunciaverunt assensu communi ut vel dictum Petrum a sua propelleret comitiva articulosque provisos effectui manciparet vel ipsâ— certe in eum tanquam perjurum insurgerent Durus videbatur hic sermo regi quia Petro carere nescivit sed plus periculi cernebat emergere si petitionibus Proceâ—um non obâ—emperaret Petrus igitur abjurat regnum regis plus â—ermissione quam beneplacito addita a Baronibus conditions quod si de caetero posset in veniri in Anglia vel aliqua terra regi subiecta caperetur et velut hostis publicâ—s damnaretur Igitur sub praemura conditione daâ—o sibi conductu Angliae regnum Iâ—gons desernit Franciam est ingressus Quo adito Rex Francorum jussit suis ut eum caperent si quo modo possent diligenteâ— cusâ—odirent nâ— direâ— in Angliam Proceres sicut prius turbaret filtâ—m Petrus de â—is praemonitus fugit in Flandâ—iam ibi quaeâ—iturus requiem nec invenit Tandem cum suis consortibus aâ—ienigenis redivit in Angliam de amicitra confisus Comitis Gloverniae cujus sororem duxerat in uxorem Parum ante festum natalis domini regis se presentavit obâ—utibus qui prae gaudio sui adventus juramenta pacta promissa negligens tanquam coeleste munus hilariter suscepit eum secum detinuit cum familia sua tota Anno 1311. post natale rumore vulgato de Petri reversione regni Magnates plebei conturbati sunt Qui necessitate ducti elegerunt sibi Thomam de Lancastria in ducem et defensorem ut periculis consulerent malis futuris Nobiliores vero regni de communis deâ—reti sententia miserunt honorabiles domino regi nuncios exorantes ut vel dictum Petrum eis traderet vel ut ordinatum fuerat ipsum regnum evacuare juberet Rex vero sinistro ductus consilio Baronum supplicationes parvipendens ab Eboraco recessit ad Novum Castrum Magnates proinde sub omni celeritate ad Novum Castrum iter arripuere Quod cum Rex audisset quasi proscriptus aut exul fugit cum dicto Petro Tynemutham et inde Scardeburgiam ubi habebatur castrum regale ubi praecepit Castellanis ut custodiam Petri susciperent castellum victualibus instaurarent rege se alias transferente nec opem ferre valente quin caperetur reduceretur usque ad villam de Dadington Ubi Comes Warwici Guido de bello campo fecit eum decollari tanquam legum regni subversorem publicum proditorem
Communi Iudicio Which he more amply relates in his History of England p. 69. to 77. Here we have judgement of banishment given against Gaverston by the Lords in Parliament 3. several times the 1. whiles a Commoner the two later whiles an Earl as an Enemy to the Realm and publike Traytor and a Sentence of death denounced against him in case he returned which was accordingly executed on him by the common Sentence of the Lords A Convincing proof of their Jurisdiction in criminal Causes both over Commoners and Peers His second banishment by the Lords was ratified by a Bill as the Spencers was to which the Commons gave their Assent as they did to two Acts in the Parliament of 7 Edward the 2. printed in Totles Magna Charta part 2. f. 43 44. Ne quis occasionetur pro reditu as also pro morte Petri de Gaverston made by the Grant and Assent of the King Archbishops Bushops Abbots Priors Earls and Barons ET TOUTE LA COMMVNALTIE de nostre Royalm By which Bill his Lands were all forfeited and giveâ— to the King as appears by Claus 1.2 E. 2. m. 5. where Hugh de Audeley the younger and Margaret his wife petitioned A nostre Seigneur la Roy son Counscil PRELATES COUNTS BARONS de la terre The Petition was for the Earldom of Cornwall after the death of Peter de Gaverston to whom it was given in general tayl Margaret being his daughter and heir because THE GREAT CHARTER wills that after the death of a Baron his heir shall have his heritage and mariage and the Statute of Westminster 2. wills That heirs in tayl shall not be prejudiced by the deed fine or feofment of their Ancestors and the GREAT CHARTER also wills That no man shall be outed of his freehold without the award and judgement of the Law of the Land Afterwards upon debate of this Petition pro eo quod recordatum fuit by the LORDS AND COMMONS that it had been AGREED BY THEM that all things given by the King to Gaverston and Margaret should be revoked per quod in hoc Parliamento modo per praefatos Praelatos Comiteâ— Barones et totain Communitatem Regni cousideratum est that the Earldom and all the rest of his Landâ— should remain in the King that all Charters of it should be repealed all enrolments cancelled quod est adjudicatum intretur ad Scaccarium et ad utrumque Câ—riâ—m there to be inrolled also And there is a writ directd to the Treasurer and Barons and Chief Justices of both Benches to inrol it in this Roll. This judgement being by way of Bill in pursuance of the former Bill for his attainder had the Commons assent thereto as well as the Lords though the Petiâ—ion here was directed only to the King and Lords for restitution not to the Commons who could not be Gaverstons proper Judges in Parliament being a Peer but only by way of Bill of Attainder In the 15 year of King Ed. 2. the two Sir Hugh Spencers Father and Son were articled against impeached and condemned of High Treason by the Lords in Parliament and exiled by their judgement without the Prelates or Commons who only consented to the Act for their banishment after the judgement given of which at large before to which I shall here annexe the Arricles of their impeachment being very memorable Alhonnour de Dieu de sainct esglise et de nostre seignour le roy et au profite de luy et de son royalmâ— a peace de quiete maintenir en son people et pur meinteynment de lestate de la Corone luy monstrent Praelates Counâ—z et Barons et les autres Pieres de la terre common du royalme contresir Hugh le Despenser le fitz et Sir Hugh le Despenser le Pier que come le dit sire Hugh le Despenser le fitz au Parlement Deverwike fuit nosme et assentu destre en lossice du Chamberlain nostre seignor le roy de servir en cel office come afferoit An quel parlement fuit auxi assentu que certeins Prelates et â—u res Grandes du roialme demorerent pres de roy par sâ—isons de lan pur meulx counseiler nostre seignor le roy sans queux nul grosse bosoigne ne se deveroit fair le dit sir Hugh le fitz attreit a luy syr Hugh son pier que ne fuit nient assentu ne accorde en parlement a demourer ensi pres de roy enter eux deux acroachant a eux royal power sur le roy fes ministers le guyment de son royalme a dishor our du roy emblemisement de sa corone et destruction du royalme des grandes et du people et sesoient les maluesiees desâ—us escriptes en compassant deâ—â—oigner le coer nostre seignour le roy des Piers de la terre pur avoir eux soule governance de la terre En primes que sir Hugh le Dispenser le fitz feusi coruce vers le roy et sur ceo coruce fist un bille sur la quel bille il voillet auoir en aliance de sir John Gyffarde de Brymmesfeld sir Richard de Greye et dautre davoir mesne le roy par aspertee de faire sa volunte issent que en luy ne temist mye que il ne â—e euâ—t fair â—a tenure de la bille sensuit sous escript Homage serement de ligeance est pluis par reson de la corone que per reason de person le roy pluis se lie a la corone que a la person ceo piere que avant que â—estate de la corone soit descendu nul ligeance est a la person regardant Dont si le roy par case ne se meisne par reasone en droit de la corone les leiges sont lies per sâ—rement fait a la corone de remeuer le roy et le state de la corone par reason auâ—rement ne serroit le serement tenus Ore fait a demander coment lem doit amesner le roy ou par suite de ley ou par aspertee par suite de ley ne luy poet home pas redresser â—ar il navera pas juge si ceo ne soit depart le roy En quel case si la volunte le roy ne soit accordant a reason si naveroit il forsque errour maintenue confirme Dont il covient pur le serement lauuer et quant le roy ne voet chose redresser oustre que est pur le common people malueis et damageous pur la corone a judger est que la chose soit ousle par aspertee que il est lie par â—on serement de governer son people ses lieges ses liege â—ont lies de govern en eide de luy en defaut de luy Et auxint par lour covin
Earl of Ireland Mâ—chael de la Poole Earl of Suffolk Robert Tresylam Chief Justice Nicholas Bramber Knight and other of their adherents of High Treason against the King and his Realm The Articles they exhibited against them were 36 in number at large recorded in Henry de Knyghton de Eventibus Angliae l. 5. col 2713. to 2727. with the whole proceedings thereupon for which many were attainted condemned executed BY JUDGEMENT OF THE LORDS notwithstanding the Kings intercession for some of them to the LORDS they are likewise mentioned in the printed Statutes at large of 11 R. 2. c. 1 3 4. in Walsingham Hist Angliae p. 359 to 367. and other vulgar Historians I shall therefore for brevity refer you to them Exactum est juramentum a rege ad standum REGULATIONI PROCERUM et non solum a rege sed a cunctis regni incolis idem juramentum est expetitum In the Parliament of 14 R. 2. n. 14. The King and Lords without the Commons declared That in the 7 year of this King the Earldom of Richmond with the appartenances WERE ADJUDGED BY THE KING AND LORDS to be forfeited to the King by reason of the adherence of John Duke of Britain then Earl of Richmond to the French against his allegiance to the King and his father king Edward the 3. which judgement was not then enrolled in the Rolls of Parliament for certain causes known to the King and LORDS but was now inrolled and the lands granted to the Earl of Westmerland which King Henry the 4th would not revoke upon the Commons Petition to restore them to the Duke 1 H. 4. rot Parl. n. 78. In the Parliament of 17 R. 2. n. 11 Richard Earl of Arundel in the presence of the KING and LORDS accused the Duke of Lancastre of 5 particular misdemeanors In which when the King had justified him it was awarded by the King BY THE ASSENTS OF ALL THE LORDS that the Earl should in full Parliament make a formal submission to the Duke and crave pardon for his false accusation In the Parliament of 21 R. 2. rot Parl. n. 12. to 17. the Commons impeached Thomas Arundel Archbishop of Canterbury of high Treason for procuring the Duke of Glocester and others there named to accroach to themselves regal power and execute the Commission of 10 R. 2. when he was Chancellor praying that he might be kept under safe custody with a protestation of making for her accusations during the Parliament against him and others After which they prayed the King to give judgement against the Archbishop according to his desert who submitted himself to the Kings mercy Whereupon the KING LORDS and Sir Thomas Piercy the general Proctor for the Bishops in this case adjudged the fact of the Archbishop to be Treason and himself a Traytor and that thereupon he should be banished his temporalties seised and all his lands in proper possession or use together with his goods forfeited to the King and presenting the day and place of his departure into exile After this in the same Parliament of 21 R. 2. the Lords Appellant therein named accused the Duke of Glocester the Earls of Arundel and Warwick and others of High Treason for procuring the Commission in 10 R. 2. for raising forces and coming to the Kings person armed For accroching to themselves royal power and adjudging some to death and executing them as Traytors in the Parliament of 11 R. 2. For intending to surrender up their Homage and allegeance to the King and then to depose him and saying they had good cause to depose him c. Hereupon the Earl of Arundel being brought in custody to the Parliament before the Lords by the Kings command and assent of the Lords had his charge read and declared before him by the Duke of Lancaster Steward of England to which he pleaded his pardon which plea being disallowed because his pardon was revoked by this Parliament and he relying on it without any other plea the Lords appellants prayed judgement against him as convict of the Treasons aforesaid Whereupon the Duke of Lancaster by assent of the KING Bishops Earles and LORDS adjudged him convict of the Articles aforesaid and thereby a Traytor to the King and Realm and that he should be therefore hanged drawn and quartered and forfeit all his Lands in fee or fee-tayl which he had in the 10. year of this King with all his goods and chattels But for that he was come of Noble bloud the King pardoned his execution of hanging drawing and quartering and granted that he should be beheaded which was accordingly executed the same day on Tower hill by the Marshal of England The 28. of September the Earl of Warwick was brought ao his Trial in the same manner as the Earl of Arundel who confessed all the Articles submitted to the Kings grace and had the same judgement pronounced against him in the same manner as the Earl of Arundel But the King at the Lords Appellants and others requests pardoned his execution granted him his life and banished him into the Isle of Man The Duke of Norfolk by assent and Act of Parliament was tried in a Court Martial by the King Lords and some Knights for words spoken against the King and judgement was there given that he should be banished into Hungary and his lands forfeited to the King Within one year after such is the vicissitude of all worldly honour and power in the Parliament of 1 H. 4. Plac. Coron n. 1. to 11. at the prayer of the Commons the great Lords Appellants Edward Duke of Albemarl Tho. Duke of Surry John Duke of Exeter John Marquess Dorset John Earl of Salisbury and Thomas Earl of Glocester were all questioned and brought to their several answers before the King and Lords for their Acts and proceedings in the Parliament of 21 R. 2. the records whereof being read before them in Parliament they made their several answers and excuses thereunto whereupon the King and Lords after consultation thereupon ADJUDGED that the said Dukes Marques and Earls should lose their several Titles and Dignities of Dukes Marquess and Earls with all the honor thereunto belonging and that they should forfeit all the Lands and goods which they or any of them had given them at the death of the Duke of Glocester or since and that if they or any of them should adhere to the quarrel or person of King Richard lately deposed that then the same should be Treason The which Judgement was pronounced against them by William Thurning Chief Justice of the Kings Bench in Parliament by the Kings command but in the Parliament of 2 H. 4. rot Parl. n. 33. upon the Petition of the Lords and Commons to the King the Earls of Rutland and Somerset were pardoned and restored by the King in Parliament In the Parliament of 2 H. 4. n. 14. the Bishop of Norwich was accused by Sir Thomas Erpingham the Kings
Vice-Chamberlain before the King and Lords of divers offences against the King who taking the accusation to be good because of the Bishops order and that he was of the kingâ— linage pardoned the said Bishop all his misprisions done against his person and reconciled the Bishop and Sir Thomas one to another And n. 30 31. all the Lords Temporal whose names are there recorded being 25. in number by assent of the King declared and ADJUDGED Thomas Holland late Earl of Kent John Holland late Earl of Huntingdon John Mountague late Earl of Salisbury Thomas le Despencer Sir Ralph Lumley Knight and divers others who were for their Rebellions and Treasons in levying war against the King taken slain or beheaded by certain of the Kings Subjects to be Traytors and that they should forfeit all such Lands as they had in fee the 5. of January the first year of the King or at any time after with all their goods and chattels The Record is Toutz les Seigneurs temporelz esteantz en Parlement per ussent du Roy declarerent et adjuggerent les ditz Thomas c. pur Trayteurs pur la leve de Guerre encountre lour Seignior le Roy nient obstant qils furent mortz sur le dâ—t leve de guerre sanz process de ley Lo here the Lords alone by the Kings assent declare and adjudge what is Treason both in the case of Lords and Commoners too and â—taint and give Judgement against them both without the Commons after their deaths without legal trial In the Parliament of 5 H. 4. rot Parl. n. 11 12 13 14. On Friday the 18 of February the Earl of Northumberland came before the King Lords and Commons in Parliament and by his Petition to the King acknowledged that he had done against his Lawes and allegeance and especially for gathering power giving of Liveries for which he put himself upon the Kings grace and prayed pardon the rather for that upon the Kings Letters he yielded himself and came to the King at York whereas he might have kept himself away Which Petition by the Kings command was delivered to the Justices to be examined and to have their counsel and advice therein Whereupon the LORDS made a Protestation que le Juggement appentient a â—ux tout soulement THAT THE JUDGEMENT APPERTAINED ONLY TO THEM And after the said Petition being read and considered before the King and the said Lords as Peers of Parliament aus queux teils juggemeâ—t apperteignent de deoit to whom such Iudgements appertained of right having had by the Kings command competent deliberation thereupon and having also heard and considered as well the Statute made in the 25. year of King Edward the Kings Grand father that now is concerning the Declaration of Treason as the Statutes of Liveries made in this Kings reign ADJUDGED That that which was done by the said Earl contained within his Petition was neither Treason nor Felony but Trespas for which the said Earl ought to make fine and ransom at the will of the King Whereupon the said Earl most humbly thanked our Lord the King and the said Lords his Peers of Parliament for their rightfull judgement and the Commoners for their good affections and dâ—ligence used and shewen in this behalf And the said Earl further prayed the King that in assurance of these matters to remove all jealousies and evil suspitions that he might be sworn a new in the presence of the King and of the Lords and Commons in Parliament and the said Earl took an Oath upon the Crosier of the Archbishop of Canterbury to be a faithfull and loyal liege to our Lord the King the Prince his Son and to the heirs of his body inheritable to the Crown according to the Laws of England Whereupon the king out of his grace pardoned him his fine and ransom for the trespass aforesaid After which num 17. the Lords Spiritual and Temporal humbly thanked the King sitting in his royal Throne in the white Chamber for his grace and pardon to the said Earl of his fine and ransom and likewise the Commons thankâ— the Lords Spiritual and Temporal for the good and just Iudgement they had given as Peers of Parliament to the said Earl From this memorable Record I shall observe First that though this Declaration of this Earls case was made by his Petition in the presence of the King Lords and Commons in Parliament according to the Statute of 25 E. 3. yet the Lords only by Protestation in presence of the King and Commons claimed to be the sole Iudges of it as Peers of Parliament and belonging to them OF RIGHT Secondly That this claim of theirs in this case was acknowledged and submitted to both by the King and Commons and thereupon the Lords only after serious consideration of the case and Statutes whereon it depended gave the definitive sentence and judgement in this case that it was neither Treason nor Felony but Trespass only c. Thirdly That the Earl thanked the King only for his grace the Lords for their just Iudgement and the Commons only for their good hearts and diligence having no share in the judgement though given by the Lords both in the Kings and their presence and that the Commons themselves returned special thanks to the Lords Spiritual and Temporal in Parliament for their good and just judgement Fourthly That this judgement of the Lordr only was final and conclusive both to the King and Commons who acquiesced in it In the Parliament of 2 H. 5. rot Parl. num 13 14. Thomas Mountague Earl of Salisbury son and heir of John Mountague Earl of Salisbury exhibited his petition in Parliament to reverse a judgement given against his said father in the Parliament at Westminster in the second year of King Henry the fourth rot Parl. n. 30 31. forecited wherein amongst others he was attainted of Treason by judgement of all the Temporal Lords in Parliament and thereupon he exhibited certain reversals of Judgements given in Parliament as making on his behalf to the Lords consideration reversed for some errors assigned in those judgements to wit one judgement given against Thomas heretofore Earl of Lancaster before King Edward the second at Pomfract the Monday before the feast of the Annunciation in the fifteenth year of his reign and another Judgement against Roger de Mortymer late Earl of March in the Parliament of King Edward the third the Monday after the feast of St. Katherine in the fourth year of his reign at Westminster Which Judgements being distinctly and openly readâ— and fully understood It seemed to the King and Lords that the case of the death and execution of the said John late Earl of Sarum and of the judgement aforesaid against him given is not nor was like to the case of the executing of the said Th. heretofore Earl of Lancaster nor to the case of the putting to death of Roger Earl of March nor to any judgement given against
committed to the Tower of London The 7 day of February the Commons by William Trussel their Speaker brought up and presented to the King and Lords in the Lords House a Bill against the said Duke containing an impeachment of several High Treasons committed by him against the King requiring of the Lords all their Articles therein to be enacted with prosecution therein The 9. of March they exhibited new articles of complaint against the Duke comprising sundry misdemeanors against the king and other persons which they require might be enrolled and that the Duke might answer to them The 9. of March the Duke was brought by the kings writ from the Tower into the Parliament Chamber before the King and Lords where the Articles were rehearsed to him who desired Copies of them which was granted And he for more ready answer was committed to certain Esquires to be kept in the Tower within the kings palace The 14 of March the Duke appeared before the K. Lords where on his knees he denied as untrue the 8 Articles of Treason and the same offered to prove as the King shall appoint The Chief Justice thereupon by the kings command asked this Question of the Lords what advise they would give the King what is to do further in this matter which advise was deferred till Monday then next following whereon nothing was done in that matter On Tuesday the 17 of March the king sent for all the Lords Spiritual and Temporal then being in Town being 24 in all into his Inner Chamber within his Palace of Westminster where when they were all assembled he then sent for the Duke thither who coming into the Kings presence kneeled down and continued kneeling till the Chancellor of England had delivered the kings command to him and demanded of him what he said to the Commons Articles not having put himself upon his Peerage Whereupon the Duke denied all the Articles touching the kings Person and state of the Realm as false and scandalous And so not departing from his said Answers submitted himself to the kings Rule and Governance without putting himself upon his Peerage Where thus the Chancellor told him That as touching the great and horrible crimes contained in the first Bill the king holdeth him neither declared nor charged And as touching the second Bill containing misprisions which are not criminal the king by force of his submission by his own advice and not reporting him to the advice of the Lords nor by way of judgement for he is not in place of judgement putteth you to his Rule and Governance that before the first of May next coming he should absent himself out of the kingdom of England and all other his Dominions in France or elsewhere and that he nor no man for him should shew or wait any malice nor hate to any person of what degree soever of the Commons in the Parliament in no manner of wise for any thing done to him in this Parliament or elsewhere And forthwith Viscount Beaumont in behalf of the said LORDS both spiritual and Temporal and by their advice assent and desire said and declared to the Kings Highness That this that so was decreed and done by his Excellency concerning the person of the said Duke proceeded not by their advice and Counsels but was done by the Kings own demeanoir and rule Wherefore they besought the King that this their saying might be enacted in the Parliament Roll for their more declaration hereafter with this protestation that it should not be nor turn in prejudice nor derogation of them their heirs ne of their successors in time coming but that they may have and enjoy their liberty as they or any of their Ancestors and Predecessors had and enjoyed before this time This is the sum of this large Record which makes nothing to the purpose for which Sir Edward Cook cites it in his 4 Institutes p. 25. That it is ERROR when both Houses joyn not in the Judgement For first here is nothing but an impeachment only by the Commons of a Peer who ought to be tryed judged only by his Peers not by Commoners Secondly there was no judgement given in Parliament in this case but only a private Award made by the King out of the Parliament House in his own Chamber in presence of the Lords Thirdly the Lords entred a special protestation against it as not made by their advice or consent Fourthly they enter a special claim in the Parliament Roll for the preservation of their Right and Freedom of Peerage for hereafter both of being tried and judged only by their Peers in Parliament and so an express resolution that the Peers in Parliament are and ought to be Judges especially of Peers not the Commons These Records of these cited at large lest Sir Edward Cooks brief quotation and mis-recital of them should deceive the credulous or ignorant Readers In the Parliament of 31 H. 6. rot Parl. n. 28. Thomas Earl of Devonshire was accused of Treason tried for and acquitted thereof by his Peers before Humfrey Duke of Buckingham Steward of England for the time being And for that the Duke of York thought the loyalty of the said Earl to be touched thereupon the said Earl protesting his Loyalty referred himself to further Trial as a Knight should doe upon which declaration THE LORDS in Parliament acquitted him as a loyal Subject Edward Duke of York with the Earls of March Warwick Salisbury Rutland John Lord Clinton and others were impeached and attainted by Judgement of the Lords in Parliament of High Treason for raising forces and levying war against King Henry the 6. and afterwards attainted by Bill in the Parliament of 38 H. 6. n. 7. to 26. In the Paâ—liamenr of 1 E. 4. n. 17. to 71. The Duke of Exeter Viscount Beamont the Earls of Pembroke Wilts and Devonshire the Lords Nevil Roos Gray Dacre Hungerford and others were first attainted and condemned of High Treason by THE LORDS and after by Bill for levying warr against King Edward the fourth The Duke of Somerset and others in the Parliament of 4 E. 4. n. 28. to 39. and John Vere Earl of Oxford with others in the Parliament of 14 E. 4. n. 34. to 41. were in the same manner for the same offence attainted of High Treason and their Lands forfeited To pretermit all other Attainders of this Nature in cases of High Treason in the reigns of Henry the 8. Edward the 6. Queen Mary Queen Elizabeth and King James both in our English and Irish Parliaments formerly touched p. 196 197 198 199. In the Parliaments of 18 21 Jacobi Sir Francis Bacon Viscount St. Alban Lord Chancellor of England and the Earl of Middlesex Lord Treasurer of England were impeached accused convicted of Bribery Corruption and other misdemeanors removed from their places fined Middlesex 50000 l. imprisoned made uncapable of any Office and thus censured by Iudgement of the Lords house as the Journals of those Parliaments
shall prove by most clear and infallible evidences and presidents as well antient as modern Our Noble King Alfred as he ordained for the good estate of the Realm that the Earls and Noble thereof by a perpetual custom should twice every year or oftner in times of Peace assemble together in Parliament at London to govern the people of England and keep them from sinne as Andr. Horn informs us in his Mirrour of Justices c. 1. p. 10. So the same Author records c. 5. p. 296 297 c. That this royal Justiciary who took a short account each year of all his Judges proceedings in his Parliaments condemned and hanged up in one year about An. 890 as I conjecture no lesse than 44 of his Judges and Justices as Murderers for executing his Subjects and putting them to death against Law without any legal cause or sufficient evidence or tryal by a Jury of their Peers and imprisoned fined punished others of them in the self same kind as they had injuriously imprisoned fined and punished his Subjects against Law and that no doubt by the advise and assent of his Nobles in Parliament upon complaint of their injustice and corruption the proper Court for punishment of such Offenders whose names and causes recorded at large by this Author shew them to be all Commoners and no Peers of the Realm Anno 1096. William de Anco and William de Alderi were hanged for Treason against William Rufus by judgment of the Lords in a Parliament at Salisbury King Henry the 2. Anno 1166. holding a Council at Oxfâ—quidam pravi dogmatis seminatores tracti sunt IN JUDICIUM praesente Rege et Episcopis Regni quos à fide Catholica devios et in examine superatos facies cauteriata notabiles cunctis exposuit qui expulsi sunt à regno These Hereticks thus branded in the face and banished the Realm by the judgement of the King and this Council ae Nubrigensis informs us were above 30. men and women who came out of Germany into England under one Gerard their Captain stiled Publicans who went about the Country to spread their errors but at last being detected they were apprehended and cast into prison and then brought before the King and a Council of his Bishops where being convicted of Heresie they were adjudged by the K. to be publikely whipped branded in the face and then banished the Realm Hujus severitatis pius rigor non peste illa quae jam irrepserat Angliae regnum purgavit verum etiam ne ulterius irreperet incusso haereticis terrore praecavit as Nubrigensis observes In the year 1224. the 8. of King Henry the 3. his reign the King requiring a restitution and resumption of his Castles and Lords detained from him by some Nobles and others who at last for fear of the Bishops excommunication against such as detained them and disturbed the peace of the Realm and also of the Kings power and justice much against their wills reddiderunt singuli Castella et municipia et honores et custodias Regi quae ad coronam spectare videbantur Thereupon Falcatius de Breut a Norman born a Soldier under King John in the Barons wars trusting on the Kings and other great mens favors fortified the Castle of Bedford situated on another mans ground and presuming on his friends and his own military power and wealth gained in the wars he feared not violently and unjustly to take away the Freeholds lands and possessions of divers of his neighbours and more epecially he disseised 52. Freemen in the Manor of Luiton of their Freeholds and Tenements without judgement and appropriated their Common pastures to himself Whereof complaint bing afterwards made to King Henry the 3. Anno 1224. the King assigned Martin de Pateshulle Thomas de Multon Henry de Braibroc and certain other Justices to take the recognition of the parties complaining of these disseisins by an Assise of Novel disseisin and to do them Justice Who having received their recognitions according to custom the said Falcatius was condemned to pay them costs and damages for the spoils done in the said Tenements to which the Plaintifs were judicially restored Which Falcatius taking very impatiently being likewise amerced one hundred pounds to the King for every of the said Tenements for his forcible entry into them he in a great fury commanded his Garison souldiers in the Castle of Bedford to march armed to Dunstaple where the Justices Itinerant sate and gave judgement against him and to take and bind them in chains and carry them to Bedford Castle and there detain them close prisoners in the Dungeon The Justices having notice thereof fled thence with all speed some one way some another but Henry de Braibroc flying was at unwares taken by the Souldiers who used him very inhumanly then carryed him prisoner to Bedford Castle and there kept him prisoner King Henry at that time was at Northampton where he held a Parliamentary Council Cum Archiepiscopis Episcopis Comitibus Baronibus et aliis multis de regni negotiis tractaturi voluit erim Rex uti consilio MAGNATUM SUORUM de terris transmarinis quas Rex Francorum paulatim occupaverat but it hapned otherwise than he hoped For the rumor of this act of Falcatius being divulged the wife of the said Henry Braibroc came to the King at Northampton et audiente univerâ—o Concilio de viro suo cum lachrymis querulans deposuit Quod Rex factum minus indigne ferens quaesi vit Consilium a Clero simul et Populo to wit the Spiritual and Temporal Lords Clerus Regni Populus when single being frequently used for the Lords Spiritual and Temporal both in Matthew Paris Hoveden Bromton and others not for the inferiour Clergy and Commons house not then in being as some Antiquaries mistake quid sibi super tanta injuria foret agendum At omnes una voce concilium Regi dederunt quatenus sine mora et omnibus aliis praetermissis negotiis in manâ— valida et armata ad Castrum praedictum procedens tantam temeritatem studeat vindicare Cumque Domino Regi placuisset SENTENTIA ipso jubente omnes ad arma quam citius convolantes ad castellum praedictum de Bedeford tam Clorus quam Populus pervenerunt The whole Parliament marching in person to execute this their Sentence upon these transcendent military Malefactors Hereupon the King sending Messengers to the Commanders of the Castle required entrance to be given to him and commanded Henry Braibroc his Justice to be rendered But William de Brent Brother of Falcatius and the rest within it answered the Messengers that they would not render the Castle nor Justice unless they had a command from their Lord Falcatius and especially for this reason quod Regi de Homagio vel fidelitate non tenebantur astricti With which answer the King being much incensed commanded the Castle to be presently encompassed with military
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
spiritual Cour◠for a temporal cause belonging to the Crown and Common Law which was adjudged by the Lords upon examination to be untrue To passe by the accusation of Sir Philip Courtney of divers hainous matters oppressions dissensions before the King and Lords in the Parliament of 16 R. 2. n. 6.13 14. of which more anon In the Parliament of 17 R. 2. n. 20 21. John Duke of Lancastre Steward and Thomas Duke of Gloucester Constable of England complained to the King that Sir Thomas Talbot Knight with other his adherents conspired the deaths of the said Dukes in divers parts of Cheshire as the same was confessed and well known and prayed That the Parliament might judge of the fault Whereupon the King and the Lords in Parliament without the Commons adjudged the said fact to be open and High Treason And thereupon they awarded two Writs to the Sherifs of Yorks and of Derby to take the body of the said Sir Thomas retornable in the Kings Bench in the month of Easter next ensuing And open Proclamation was made in Westminster Hall That upon the Sherifs retorn and at the next coming in of the said Sir Thomas he should be convicted of Treason and incurr the loss and pain of the same and that all such who should receive him after the Proclamation should receive the like losse and pain In the Parliament of 20 R. 2. n. 15 16 23. Sir Thomas Haxey Clark was by the King Lords in Parl. adjudged to die as a Traytor and to forfeit all his Lands Goods Chattels Offices and Livings for exhibiting to the House of Commons a scandalous Bill against the King and his Court for moderating the outragious expences of his Court by Bishops and Ladies c. Upon the Bishops intercession the King spared his life and delivered him into the custody of the Archbishop to remain as his Prisoner In the Parliament of 21 R. 2. n. 19 20. Pl. Parl. n. 2. to 15. The Lords Appellants appealed Sir Tho Mortimer Knight of High Treason for raising war against the King accroaching royal power and purposing to surrender his homage and allegiance and depose the King Who flying into the parts of Ireland thereupon the Lords in Parliament assigned him a certain day to come and render himself to the Law or else to be adjudged and proceeded against as a Traytor and Proclamation thereof was made accordingly in England and Ireland to render himself within 3 months And that after that time all his Abettors and Aiders should be reputed for and forfeit as Traytors He not coming at the day The Duke of Lancaster Steward of England by assent of the Lords in Parliament adjudged him a Traytor and that he should forfeit all his Lands in fee and see tayl together with all his Goods and Chattels The like Judgement in like manner was in the same Parliament given against Sir John Cobham Knight for the like Treason Placit Coronaen 16. On the 22 day of March 22 R. 2. n. 27. The King by assent of the Lords adjudged Sir Robert Plesington Knight then dead a Traytor for levying war against him with the Duke of Glocester at Harrengary for which he should lose all his Lands in fee or fee tayl and all his goods And n. 28. Henry Bowht Clerk for being of Counsel with the Duke of Hereford in his device was adjudged by the King and Lords to die and forfeit as a Traytor after which his life was pardoned and he banished In the Parliament of 1 H. 4. n. 79. As the Commons acknowledged that the Iudgements in Parliament had always of right belonged to the King and Lords and not unto the Commons So therein the King and Lords alone without the Commons gave Judgement in sundry cases as Judges in Parliament 1. In Sir Thomas Haxey his case who in his own name presented a Petition in this Parliament a nostre tresedoute seigniour le ROY a LES SEIGNIORS DU PARLIAMENT shewing that in the last Parliament of 21 R. 2. that he delivered a Bill to the Commons of the said Parliament for the honour and profit of the said King and of all the Realm for which Bill at the will of the King he was by the King and Lords adjudged a Traytor and to forfeit all that he had praying that the record of the said Judgement with the dependants thereupon might be vacated and nulled by them in this present Parliament as erronious and that he might be restored to all his degrees farms estate goods chattels ferms pensions lands tenements rents offices advow sons and possessions whatsoever and their appurt and enjoy them to him and his heirs notwithstanding the said Iudgement or any grant made of them by the King The Commons House exhibited a Petition likewise on his behalf to the like effect adding that this judgement given against him for delivering this Bill to the Commons in Parliament was eneontre droit et la course quel avoit estre use devant in Parlement en anientesment des Customs de◠le◠Communes Upon which Petitions Nostre Seignior le ROY de Induis assent des touz les Seigniors esperituelz et temporelz ad ordinez et adjudges que le dit juggement renus vers le dit Thomas in Parlement soit de tout casses revorses repellez et adnullez et tenus pur nul force n'effect et que le dit Thomas soit restitut a ses nom et fame c. nient obstant mesme le juggement 2ly In the case of Judge Rickhill 1 H· 4. n. 92. On the 18 of November the Commons prayed the King that Sir William Rickhill late Just of the Common Bench arrested for a Confession he had taken of the Duke of Gloucester at Calice might be brought to answer for it devant les Seigniors du Parlement whereupon he was brought into Parliament before the Kings presence and all the Lords spiritual and temporal and Commons assembled in Parliament where Sir Walter Clapton Chief Justice of the Kings Bench by the kings command examined the said Sir William how and by what warrant he went to Calice to the said Duke of Glocester and upon what message Who answered that king Richard sent him a special Writ into Kent there recited verbatim commanding him by the faith and allegiance whereby he was obliged to him and under pain of forfeiting all he had to goe unto Caleys And that at Dover he received a Commission from the said king by the hand of the Earl Marshal to confer with the Duke of Glocester and to hear whatsoever he would say or declare unto him and to certifie the king thereof in proper person wherever he should be fully and distinctly under his Seal Whereupon he went thither and took the said Dukes Examination in writing according to the purport of the said Commission a Copy whereof the Duke himself received c Upon the hearing of his answer and defence
every temporal Lord being in full Parliament examined touching the answer of the said Sir William and the matters and evidences which they had examined said severally that the said William had done his message well and legally and that in the person of the said William there was no fault nor evil touching the said message nor any thing that he did to the person of the said Duke Whereupon Walter Clapton Chief Justice of the Kings Bench by command of the king adjudged and declared that the said William should be fully excused and acquitted for ever in time to come touching this matter 3ly The last day of this Parliament it was agreed by the King and Lords that all the remembrances called Raggemans or Blantâ—es Charters lately sealed in the City of London and divers Counties Cities and Burroughs of England should be sent to the City of London and from every County City and Burrough from whence they came and Writs sent to every of them rehearsing That the king held all the resiants and Inhabitants in them for his good and loyal Subjects and that no confession by them made comprised in the said remembrances are nor shall be in derogation of the estate of any such person and that the same remembrances shall be burnt and destroyed in the most open place of the said Counties Cities and Burroughs and if any thing remain of record in any Court or place the king wills that it shall be cancelled and totally adnulled revoked and repealed and held for no record and of no force nor value for time to come 4ly The 19th of November in the said Parliament Placita Coronae coram Domino Rege in Parliamento suo c. Anno regni Regis Henrici quarti post Conquestum primo n. 17. The Commons prayed she King that rhe pursute arrest and judgements made against Sir William le Scropâ— knight Henry Green knight and John Bassy knight might be affirmed and held good Whereupon Sir Richard Scroop humbly prayed the King that nothing which should be done in this Parliament might turn to his or his Childrens dis-inherison Of which Sir Richard it was demanded whether the said pursute arrest and judgements were good or not who answered that he feared not to say and must confesse that when they were made thâ—y were good and profitable for the King and Realm and that his Son was one of them for which he was very sorrowfull Whereupon the king rehearsed that he claimed the Realm and Crown of England with all their members and appurietenances as heir of the bloud by the right line of king Henry the 3d. and although through the right which God had sent him by the aid of his Parents and friends he recovered the said Realm which was at the point to be undone by default of government and defesance of the Laws and customs of the Realm yet it was not his will that any should think that by way of Conquest he would disinherit any man of his heritage franchise or other right which he ought to have nor out any man of that which he had or should have by the good Laws or Customs of the Realm except these who had been against the good purpose and common profit of the Realm of which only the King held the said Sir William Henry and John for such and guilty of all the evil which had come upon the Realm and therefore he would have and hold all the Lands and Tenements they had within the Realm of England or elsewhere by conquest Whereupon fuist demande de touts les Seigniors temporellez lour advys de les pursuite arreste juggem 〈◊〉 suiâ—diâ—z Les queux Seigniors touz de â—ne accorde disorent que mesmes les pursuite arreste juggement quinâ—que fuist fait come defuist dit uist bons et les affirmente Piur bons et profitables 5ly In the case of John Hall 1 H. 4. Placita Coronae n. 11 to 17. who being in custody of the Marshal of Englana was brought by him before the Lords in Parliament and there charged before them by Walter Clapton Lord Chief Justice by the King command with having a hand in the murther of the Duke of Glocester who was smothered to death with a Featherbed at Calues by king Richard the seconds command the whole transaction whereof he confessed at large and put in writing before James Billingford Clerk of the Crown which was read before the Lords upon reading thereof the King and all the temporal Lords in Parliament resolved that the said John Hall by his own confession deserved to have as hard a death as they could adjudge him to because the Duke of Glocester was so high a Person and thereupon toutes les Seigneiors temporelz per assent du Roy adjuggerent all the temporal Lords by assent of the King ADJVDGED that the said Jo. Hall should be drawn from Tower hill unto the Gallows at Tiburn and there bowelled and his bowels laid before him and after he should be hanged beheaded and quartered and his head sent to Calice where the murther was committed and his quarters sent to other places where the king should please and thereupon command was given to the Marshal of England to make execution accordingly and it was so done the same day Lo here the Lords in Parliament gave judgement against a Commoner in case of a murther done at Calice and so not â—riable in the Kings Bench but in Parliament and passe a Judgement of High Treason on him for murthering of a great Peer only In the Parliament of 2 H. 4. rot Parl. n. 23 24. The Commons shewed to the King that William Bagot had been impeached of many horrible deeds and misprisions the which if they had been true the Commons supposed the the King aad ths Lords would have had good notice thereof for that they had made many examinations thereof whiles the said William was in distress And therefore the said Commons prayed the King that the said Sir William being in Flanders and no offence found in his person upon the slanders in his impeachment aforesaid that he would be pleased to restore him to his lands To which prayer was answered in the Kings behalf that although the said Sir William upon the said impeachment made the last Parliament was put to his answer before the King and the Lords and there pleaded a general Charter of pardon against which Charter it seemed to all the Lords then present that the said Sir William ought not to be impeached nor put to answer by the King on his part for that the said Sir William was not attainted of any impeachment suggested against him and that the King had done him justice in this behalf therefore he would in the same manner doe him justice in the residue at the Commons request A most full proof of the Kings and Lords judicial power in Parliaments even in case of a Commoner The same Parliament 2. H. 4. num 29. William
Sautre being condemned of Heresie in the Convocation by Archbishop Arundel and the Clergy thereupon by order and advice of the Temporal Lords without the Prelates who must not have their hands in blood though they gave the Sentence that he should be burned or the Commons there issued out a Writ to the Sherifs of London for the burning of Sautre as an Heretick accordingly burnt thereon being the first writ of this Nature issued by the Lords alone in the Kings name before the Statute of Heresie was made and passed in this Parliament In the same Parliament of 2 H. 4. n. 30. The Temporal Lords by assent of the King adjudged and declared Sir Ralph Lumly Knight and others Traytors for levying war in sundry parts to destroy the K. his people and that they should forfeit all their lands in fee goods and chattels though they were slain in the field not arraigned nor indicted by reason thereof In the Parliament of 4 H. 4. n. 19 20 21. Sir Philip Courtney being complained against and convicted of a forcible entry into Lands and for a forcible imprisonment of the Abbot of Mâ—nthaem in Devonshire and two of his Monks was upon hearing and examination adjudged by the King and Lords to be bound to his good behaviour and for his contempt committed to the Tower of London prisoner Anno 1403. Henry Percy the younger confederating with Thomas Percy Earl of Worcester to raise forces â—nd rebel against the King sent Letters to the people of every County propositum quod assumpserant non esse contra suam ligeantiam et fidelit tem quam regi fecerant nec ab aliunde exercitum congregasse nisi pro salvatione personarum suarum reipublicae meliori guvernatione Quia census et Tallagia Regi concessa pro salva regni custodia covertebantur ut dixerunt in usus indebitos et inutiliter consumebantur praeterea querebantur quod propter aemulorum dilationes pessimas rex eis insensus fuerat ut non auderent personaliter venire ad ejus praesentiaem donec Praelati regnique Barones regi supplicassent pro eisdem ut coram Rege permitterentur declarare suam innocentiam per Pares suos legaliter justificari Plures igitur visis his literis collaudabant tantum virorum solertiam extollebant fidem quam erga Rempublicam praetendebant Having raised great forces against the King by this means which the kings forces encountred at Shrewsbury in a pitched battel Henry Percy and sundry of his adherents were there slain in the field and the rest routed For which levying of war in the Parliament of of 5 H. 4. n. 15. the said Henry Percy and his Coâ—federaâ—es were declared and adjudged Traytors by the King and Lords in full Parliament and their Lands goods and chaâ—tels confiscated In the same Parliament n. 18. At the Petition of the Commons The Lords â—enâ—ed and ordered that the Kings Confessor the Abbot of Dore Mr Richard Durham and Crosby of the Chamber should be removed out of the Kings house and Court whereupon 3. of them appearing before the King and Lords in Parliament the King though he excused them yet charged them to depart from his house for that they were hated of the people In the Parliament of 13 H. 4. n. 12 13. The Lord Roos complained against Robert Thirwit one of the Justices of the Kings Bench for withholding from him and his Tenants Common of Pasture and Turbâ—ry in Warbie in Lincolnshire and lying in wait with 500 men for the Lord Roos Thirwit before the King and Lords confessed his fault and submitted himself to their Order who appointed 3. Lords to end the difference who made an award between them that Thirwit shouâ—d confess his fault to the Lord Roos crave his pardon and tender him amends In the Parliament of 5 H. 5. n. 11. Sir John Oldcastle knight being outlawed of Treason in the Kings bench and excommunicated before the Archbishop of Canterbury for Heresie was brought before THE LORDS and having heard his conviction made no answer nor excuse thereto Upon which Record and Process THE LORDS ADJUDGED that he should be taken as a Traytor to the King and Realm carried to the Tower of London from thence drawn through the City to the new Gallows in St. Gyles without Temple-barr and there hanged and burned hanging which was accordingly executed Sir Iohn Mortymer knight being committed to the Tower upon supposition of Treason done against King Henry the 5. in the 1. year of H. 6. brake out of the Tower for which breach he was indicted of Treason being afterwards apprehended he was brought into the Parliament of 2 H. 6. n. 18. and upon the same Indictment then confirmed by assent of Parliament JUDGEMENT was given against him BY THE LORDS that he should be carried to the Tower drawn through London to Tiburn there to be hanged drawn and quartered his head to be set on London-bridge and his four quarters on the four Gates of London In the Parliament of 38 H. 6. n. 20 2â— 22. Sir William Oldham knight and Thomas Vaughan Esquire were attainted of Treason by the LORDS and in the Parliaments of 1 E. 4. n. 19. to 31. 4 E. 4. n. 28. to 38. â—4 E. 4. n. 34. to 40. sundry Knights Esquires Citizens and Commoners are attainted of Treason by the Lords for levying warr and holding forts against the King then after by Bill whose names are overtedious to reherse which you may peruse at leisure in the Exact Abridgement of the Records in the Tower To omit all other presidents of this Nature in the reigns of King H. 7.8 Ed. 6. Qu. Mary and Qu. Elizabeth of Commoners censured in and by the Lords house in Criminal causes upon impeachments complaints petitions which those who please may find recorded in the Journals of the Lords house I shall recite only some few Presidents more of late and present times In the Parliaments of 18. 21 Iacobi Sir Giles Mompesson and Sir Iohn Michel upon complaints and impeachments by the Commons for promoting Monopoliâ—s Corruption and other Misdemeanors were fined imprisoned by Judgement of the Lords House and Sir Giles degraded of his knighthood In the Parliament of 3. Carolâ— the Commons impeached Roger Manwaring Dr. of Divinity for preaching and printing Seditious and dangerous Sermons and sent up this Declaration against him to the Lords June 14. 1628. For the more effectual prevention of the apparent ruine and destruction of this kingdom which must necessarily ensue if the good and fundamental Laws and customs therein established should be brought into contempt and violated and that form of government thereby altered by which it hath been so long maintained in peace and happiness And to the honour of our Soveraign Lord the King and for the preservation of his Crown and Dignity the Commons in this present Parliament assembled do by this their Bill shew and
declare against Roger Manwaring Clerk Dr. in Divinity that whereas by the Laws and Statutes of this Realm the Free Subjects of England doe undoubtedly inherit this right and liberty not to be compelled to contribute to any tax tallage aid or to make any Loans not set or imposed by common consent by Act of Parliament and divers of his Majesties loving Subjects relying upon the said Laws and Customs did in all humility refuse to lend such sums of mony as without authority of Parliament were lately required of them Nevertheless he the said Roger Manwaring in contempt and contrary to the Laws of this Realm hath lately preached in his Majesties presence two several Sermons That is the 4. day of July last one of the said Sermons and upon the 29. day of the same moneth the other of the same Sermons Both which Sermons he hath since published in print in a Book entituled Religion and Allegeance and with a wicked and malicious intention to seduce and misguide the conscience of the Kings most excellent Majesty touching the observation of the Laws and Customs of this kingdom and of the rights and liberties of the Subjects to incense his royal displeasure against his good Subjects so refusing to subvert scandalize and impeach the good Laws and Government of this Realm and the Authority of the High Court of Parliament to avert his Majesties mind from calling of Parliaments to alienate his royal heart from his people and to cause jealousies sedition and division in the kingdom He the said Roger Manwaring doth in the said Sermons and book perswade the kings most excellent Majesty First That his Majesty is not bound to keep and observe the good Laws and Customs of the Realm concerning the rights and liberties of the Subjects aforementioned and this his royal will and command in imposing loans taxes and other aids upon his people without common consent in Parliament doth so far bind the Subjects of this Realm that they cannot refuse the same without peril of eternal damnation Secondly That those his Majesties loving Subjects which refused the loan aforementioned in such manner as is before recited did therein offend the Law of God against his Majesties supream authority and by so doing became guilty of impiety disloyaltâ—e rebellion and dis-obedience and lyable to many other taxes and censures which he in the several parts of his book doth most fasly and malitiously lay upon them Thirdly That authority of Parliament is not necessary for raising of aids and subsidies that the slow proceedings of such assemblies are not fit for the supply of the urgent necessities of the estate but rather apt to produce sundry impedimenâ—s to the just designs of Princes and to give them occasion of displeasure and discontent All which the Commons are ready to prove not only by the general scope of the same Sermons and books but likewise by several clauses aspersions and sentences therein contained and that he the said Roger Manwaring by preaching and publishing the Sermons and book aforementioned did most unlawfully abuse his holy function instituted by God in his Church for the guiding of the consciences of all his servants and chiefly of soveraign Princes and Magistrates and for the maintenance of peace and concord betwixt all men especially between the King and his People and hath thereby most grievously offended against the Crown and dignity of his Majesty and against the prosperity and good government of this estate and Commonwealth And the said Commons by protestation saving to themselves the liberty of exhibiting of any other accusation at any time hereafter or impeachment againg the said Roger Manwaring and also of replying to the answers which he said Roger shall make unto any of the matters contained in this present bill of complaint and of offering further proof of the premises or of any of them as the cause according to the course of the Parliament shall require Do pray that the said Roger Manwaring mâ—y be put to answer to all and every the premisses and that such proceeding examinatâ—on trial judgement and exemplary punishment may be thereupon had and executed as is agreeable to Law and Justice On June the 14 1628. the Lords sending a message to the House of Commons that they were ready to give judgement against Manwaring if the House of Commons would demand it Thereupon they went with the Speaker up to the Lords House having agreed he should demand judgement in these words which he then used at the Lords Bar The Knights Citizens and Burgesses of the House of Commons have impeached Roger Manwaring of sundry misdemeanors and your Lordships having taken consideration thereof they doe now by me their Speaker demand judgement against them Which upon reading his impeachment and full proof thereof out of his Sermons in his presence was done accordingly The Judgement was given and pronounced by the Lord Keeper all the LORDS being in their Robes and Manwaring at the Bar it was delivered in these words Whereas Roger Manwaring Doctor in Divinity hath been impeached by the House of Commons for misdemeanors of a high nature in preaching two Sermons before his Majestie in Summer which since are published in print in a Book intituled Religion and Allegiance and in another Sermon preached in the Parish of St. Giles in the Fields the 4th of May last And their Lordships have considered of the said Manwarings answer thereunto expressed with tears and grief for his offence most humbly craving pardon therefore of the Lords and Commons yet neverthelesse for that it can be no satisfaction for the great offence wherewith he is charged by the said Declaration which doth evidently appear in the very words of the said Sermons their Lordships have proceeded to judgement against him and therfore this High Court doth adjudge First That Dr. Manwaring shall be imprisoned during the pleasure of the House 2ly That he de fined at 1000 l. to the King 3ly That he shall make such submission and acknowledgement of his offences as shall be set down by a Committee in writing both at the Bar and in the House of Commons 4ly That he shall be suspended for the time of 3 years from the exercise of the Ministery and in the mean time a sufficient preaching Minister shall be provided out of his living to serve the Cure this suspension and this provision of a preaching Minister shall be done by the Ecclesiastical Jurisdiction 5ly That he shall be for ever disabled to preach at the Court hereafter 6ly That he shall be hereafter disabled to have any Ecclesiastical dignity or secular Office 7ly That his said Book is worthy to be burnt and that for the better effecting of this his Majesty may be moved to grant a Proclamation to call in the said Books that they may be all burnt accordingly in London and both Universities and for the inhibiting the permitting therof upon a great penalty Here we have a most direct president where the whole House of Commons
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
singulis secundum Iuramenta Regis et Procerum debebatur expectare 2. The reason why he thus sled was to avoid the Justice of THE KING LORDS as they in plain terms inform the Pope without any mention of the Commons 3ly This expulsion is said to be in 44 H. 3. or rather in 41. as Mat. Paris and others inform us An. 1458. And that is at least 5. or 8. years before any Commons Knights and Burgesses were summoned to our Parliaments by Sir Robert Cottons Mr. Seldens and others confessions and that by the Writ in 49 H. 3. Rot. Claus m. 10. dorso Therefore if the Commons had any vote in his banishment it was 5. or 8. years before they were admitted into our Parliaments and so a Banishment not in but out of Parliament 4ly This Letter to Pope Alexander begins thus Sanctissimo Patri in Christo Alexandro c. COMMUNITAS COMITUM PROCERUM MAGNATUM ALIORUMQUE REGNI ANGLIAE and it is subscribed joyntly by 6. Earls and 5. Noblemen whereof Petrus de Montfort is the last VICE TOTIUS COMMUNITATIS to wit Communitas Comitum Procerum Magnatum aliorumque Regni Angliae who writ the Letter mentioned in the beginning thereof not of the Commons House contradistinct from the Earls Nobles Great-men and Barons of the Realm praesentibus literis sigilla nostra apposuimus in testimonium praedictorum not by the 10 first Earls and Nobles in behalf of themselves the Earls Lords and great men of the Realm and by Peter de Montford as Speaker or Proctor of the Commons who as Sir Robert Cotton himself acknowledgeth had no Speaker aâ— all in 6 E. 3. An. 1332. being at least 74. years after this Letter nor yet till 51 E. 3. rot Parl. n. 87. for ought appears by History or Record being 119. years after this Letter Wherefore this president consisting of so many mistakes as I have more largely proved in my Preface to Sir Robert Cottons Exact Abridgement of the Records in the Tower makes nothing at all for the Commons joynt Right of Judicature with the King and Lord The rather because the Communitas in the objected clause of the Letter is not meant of the Commons in Parliament but the Communitas or Universitas Regni popularis etsi non Nobiles as Mat. Paris stiles them or popular rabble of Commons out of Parliament The 2. president is that of Sir Nicholas Segrave 33 E. 1. rot 33. Cooks 3. Institutes p. 7. 4 Instit p. 23. in the margin Who being charged in Parliament in presence of the King Earls Barons and OTHERS OF THE KINGS COUNCEL not the Commons or Burgesses but the Iudges and Kings learned Councel at Law or his Privy Council who were assistants to the Lords as I conceive which Sir Edward Cook mistaking would have to express the Commons in Parliament then and there present that the King in the wars of Scotland being among his enemies Nicholas Seagrave his leigeman who held of the King by Homage and fealty and served him for his aid in that warr did maliciously move discord and contention without cause with John de Crombewell charging him with many enormous crimes and offered to prove it upon his body To whom the said John answered that he would answer him in the Kings Court c. and thereupon gave him his faith After which Nicholas withdrew himself from the Kings hast and aid leaving the King in danger of his enemies and adjourned the said John to defend himself in the Court of the King of France and prefixed him a certain day and so as much as in him was subjected and submitted the Dominion of the King and kingdom to the subjection of the King of France and to effect this he took his journey towards Dover to passe over into France All which he confessed and submitted himself therein de alto et Basso to the Kings pleasure And hereupon the King willing HABERE AVISAMENTUM to have the advise of the EALS BARONS LORDS magnatum and OTHERS OF HIS COUNCEL enjoyned them upon the Homage fealty and allegiance wherewith they were obliged to him quod ipsi sideliter CONSULERENT that they should faithfully ADVISE HIM what punishment should be inflicted for such a fact thus confessed Qui omnes habito super hoc diligenti tractatu et avisamento c. Who all having had thereupon diâ—igent debate and advise having considered and understood all things contained in the said fact DICUNT not by way of Judgement judicially pronounced but of answer to the Kings question propounded and as their opinion of the cause Said that this fact deserved losse of life members c. So as this offence notes Sir Edward Cooke was then adjudged in Parliament to be High Treason But under his favour First here was no judgement at all given against the party himself but only an opinion and advice touching this case not pending judicially in Parliament by way of Inditement or impeachment but voluntarily proposed by the King in answer to the kings question and so it can be no proof of any actual proper judicature vested in both Houses Secondly For ought appears this question was only propounded to the Earls Lords Barons and the Kings Council that assisted them and so only to the House of Peers not to the Commons and answered resolved only by them aliorum de Concilio suo not expressing nor including the Commons as I apprehend being never so intitled in any Parliament Records for ought I can find That these alii de Concilio were not the Commons as Sir Edward Cook insinuates but the Kings Justices and Judges who attended them is most clear by this passage of Matthew Westminster who lived and writ the story of it at that time in these words Sub illo quoque tempore Nicholaus de Segrave unus de praestantioribus de regno pro tali causa arrestatus fuerat coram rege Alius quidam Johannis de Cromâ—ewell ipsum de proditione arguerat Ille autem in defensionem obtulit se duello Rex propter bella sua noluit ista pati ille vero non licentiatuâ— et contra prohibitionem Regis mare transivit persequens accusatorem ipso Rege adhuc inter hostiles acies constituto Ideirco reputaâ— eum Rex in judicio vitae suae contemptorem nec per ipsum stare quin Rex ab hostibus interiret Et ille in gratiam Regis se submisit Cui Rex justitiam fieri volo in judicio Proinde JUSTITIARII mark it not the Commons TRIDUO SUPER HOC CONSULTANTES responderunt regi hujusmodi hominem reum esse mortis et omnia bona sua mobilia et immobilia regii juris esse Veruntamen propter generositatem sanguinis addiderunt non hunc in regis contemptum Angliam egressum fuisse sed propter iram se de suo criminatore vindicandi Regis autem esse posse facere misericordiam cum eodem Quibus Rex O
but by Bill The 8th President that may be objected is this Adam de Arleton or Tarlton Bishop of Hereford in a Parliament held at London Anno 1322. was apprehended by the Kings Officers and brought to the Bar to be arraigned for Treason and Rebellion in aiding the Mortimers and others in their wars with men and arms where having nothing to say for himself in defence of the crimes objected and standing mute for a space at last he flatly told the King That he was a Minister and Member of the Church of Christ and a consecrated Bishop though unworthy therefore I neither can nor ought to answer to such high matters without the consent of my Lord Archbishop of Canterbury my direct Judge next after the Pope and of the other Fathers the Bishops my PEERS At which saying the Archbishops and Bishops there present rose up and interceded to the King for their Colleague and when the King would not be intreated they all challenged the Bishop as a Member of the Church exempt from the Kings Justice and all secular judicature The King forced thereunto by their claimors delivered him to the Archbishops custody to answer elsewhere for these crimes Within few days after being apprehended again and brought to answer before the Kings royal Tribunal in the Kings Bench at Westminster for his Treasons the Archbishops of Canterbury York and Dublin hearing of Tarltons arraignment came with their Crosier staves carried before them accompanied with 10 Bishops more and a great company of men entred into the Court and by open violence rescued and took away the Bishop from the Bar before any answer made to his charge chasing away the Kings Officers and proclaiming openly That no man should lay violent hands on this Trayterly Bishop upon pain of excommunication and so departed The King exceedingly incensed at this High affront to Justice and himself commanded an Inquest to be impanelled and a lawfull inquiry to be made of the Treasons committed by the Bishop in his absence being thus rescued from Justice The Jury without fear of the King or any hatred of the Bishop found the Bishop guilty of all the Articles of Treason and Rebellion whereof he was indicted Whereupon the King banished the Bishop seised all his temporalties lands and goods But yet notwithstanding the Bishop by consent of all the Prelates was by strong hand kept in the Archbishops custody till he had reconciled him to the King After which by way of revenge he was a principal instrument of the Kings deposing and murther which having effected in the Parliament of 1 E. 3. 6. this Bishop petitions that the Indictment and Iudgement against him and the proceedings therein might be brought into Parliament and there nulled as erronious which was done accordingly Et quia recitatis et examinatis coram nobis et consilio nosâ—ro recordo et processu praedictis Et etiam coram Praelatis Comitibus Baronibus Magnatibus tota communitate regni nostri praesenti Parliamento nostro praesentibus compertum fuit quod in eisdem recordo et processu errores manifesti intervenerunt per assensum totius Parliamenti adnullatur and so he had restitution I answer that as this rescue of proceeding and judgement against this trayterous Bishop were singular So is this repeal and reversal of it as erronious before and by all the Commons and whole Parliament as well as King Prelates and Nobles and that no doubt at the special instance of this and all the other Bishops highly concerned in this cause Wherefore this one Swallow makes no Summer and proves no judicial authority joyntly with the King and Lords since they never joyned with them before nor since in reversing of any such error upon Judgement in the Kings Bench but only where an erronious Attainder by Bill in one Parliament was reversed by Bill in another The 9th is the Clause of King Edward the thirds Letter to the Pope in the 4th year of his reign already answered p. 274. The 10th is Sir John at Lees case 42 E. 3. n. 20. said to be ADJVDGED by the Lords and COMMONS I answer this Case is somewhat mâ—staken For the Record only mentions That the 21 day of May the King gave thanks to the Lords and Commons for their coming and aid granted on which day all the Lords and sundry of the Commons dined with the King After which dinner Sir Iohn at Lee was brought before the King LORDS COMMONS next aforesaid who dined with the King to answer certain objections made against him by William Latymer about the wardship of Robert Latymer that Sir John being of power had sent for him to London where by duresse of Imprisonment he inforced the said William to surrender his estate unto him which done some other Articles were objected against the said Sir John of which for that he could not sufficiently purge himself HE was committed to the Tower of London there to remain til he had made fine and ransom at the Kings pleasure and command given to the Constable of the Tower to keep him accordingly And then the said Lords and Commons departed After which he was brought before the Kings Councel at Westminster which COUNCEL ORDERED the said ward to be reseised into the Kings hands So as this record proves not that this judgment was given in the Parliament house nor that the Lords and Commons adjudged Sir Iohn but rather the King and his Councel in the presence of the Lords and Commons after the Parliament ended The 11 12 13. Are the cases of the Lord Latymer Lord Nevil and Richard Lyons forecited Here p. 283 284 350. which are nothing to purpose the Lords alone giving judgement in them without the Commons who did only impeach them and the King removing the Lord Latymer from his Council at their further request So that these 3. cases refute their opinions who object them The 14. is the Case of Weston and Gomines 1 R. 2. n. 38 39. In which the Lords alone gave the Judgement as I have proved p. 332 333 Therefore pointblank against the Objectors The 15. president is that of Iohn Kirby and Iohn Algar two Citizens of London in the Parliament of 3 R. 2. n. 18. who conceiving malice against John Imperial an Ambassador sent hither from the State of Genoa who had procured a Monopoly to furnish England with all such wares as come from the Levant keeping his staple at Southampton killed him in London upon a sudden quarrel picked with him for which they being committed this being a new and difficult case and the Judges being in doubt whether it were Treason or no it was thereupon propounded in Parliament according to the Statute of 25 E. 3. c. 2. like that of 25 E. 3. Parl. 2. of those who are born beyond the Seas 14 E. 3. c. 5. 13 E. 1. c. 24.32 E. 1. rot 17. 22. Claus 46 H. 3. n. 3. Claus 14
special Clause inserted into the Writs of Summons Nolumus autem quod tu seu aliquis alius Vicecomes regni nostri aut Apprentius aut aliquis alius homo ad Legem aliqualiter sit electus as appears by the Exem â—caâ—ron thereof in the Claus Roll of 5 H. 4. pars 2. m. 4 dorso in the Tower which I have viewed with mine own eyes by sundry transcripts thereof in Manuscripts and by this testimony of Thomas Walsingham who lived in writ the History of that time Direxit ergo Rex Brevia Vicecomit bus ne quosquam pro Comitatibus eligerent quovismodo milites qui in jure Regni vel docti fuissent vel Apprenticii sed tales omnino miâ—teren ur ad hoc nâ—gotium quoâ— constat ignorare cujusque juris methodum factumque est ita Whence he stiles it in his Margin PARLIAMENTUM INDOCTORUM No Lawyer being elected by reason of this Clause grounded on the forecited Ordinance Sir Edward Cook who is not only full of mistakes and mis-recitals of Records but most confident in them citing this passage of Walsingham thus bodly contradicts him But the Historian is deceived for there is no such Clause in these Writs but it was wrought by the Kings Letters by pretext of an Ordinance in the Lords House in 46 E. 3. when as the Writ it self in the Clause Roll concurring which Walsingham ascertains me that Sir Edward himself was deceived not the Historian by whom or upon what mis-information I know not And that he was so in truth we have his own expresse confession and testimony against himself within few leaves after At the Parliament holden at Coventry Anno 6 H. 4. the Parliament was summoned BY WRIT and by coâ—ler of the said Ordinance of Parliament in the Lords House in 46 E. 3. it was forbidden that no Lawyer should be chosen Knight Citizen or Burgess by reason whereof this Parliament was fruitless and never a good Law made thereat and therefore called Indoctum Parliamentum or Lack-latin Parliament And seeing these Writs were against Law ergo this Clause against Lawyers elections was in the Writs themselves Lawyers ever since for the great and good service of the Commonwealth have been eligible And then contradicting himself again in the very next lines he addes And albeit the prohibiting clause had been inserted in the Writ implying it was not yet bâ—iâ—g against Law Lawyers were of right eligible and might have been elected Knights Citizens or Burgesses in that Parliament of 6 H. 4. His reason is because Lawyers being eligible of Common right cannot be disabled by the said Ordinance of Parliament in the Lords House being no Act though Acts and Ordinances of Parl. are both the same in substance vigor as I have elsewhere proved at large against his New false Doctrine to the contrary Wherefore this Ordinance is still obligatory to practising Lawyers whiles they practise as well as to Sherifs whiles they are Sherifs unlesse they give over their practice sitting the Parl. to attend the service of the House which their practice makes them to neglect Clause 8 E. 2. m. 31. The chief Justice and other Officers of Ireland and R. de Burgo Earl of Vlton are sent for by Writ to come to the Parliament of England ad tractanduâ— cum Praelatis et Proceribus de regno nostro praedicto Claus 50 E. 3. part â— m. 23. Pro Hibernis de Hibernia venientibus ad Parliamentum Angilae there is a Writ directed to the Justices and Chancellor of Ireland Quod de Communitate Comitatuum Burgorum terrae praedictae faciatis habere per Breve de magno sigillo nostro hominibus ejusdem terrae nostrae praedictae regnum nostrum Angliae penes Concilium nostrum pro Communitate Comitatuum Burgorum ultimo venientibus videlicet euilibet eorum de Communitate Comitatus pro quo electus fuiâ— sive Civitatis sive Burgi rationabiles expensas suas c. Teste 25 Julii The Parliament ended the 10th of July By which Writ it is apparent That not only the great Officers and some Nobles but likewise knights and Burgesses were sometimes summoned and chosen in Ireland to come to this Parliament of England and had Writs for wages allowed them These varieties of the Kings writs for electing Knights and Burgesses summoning sometimes 4. sometimes 2. sometimes but one Knight out of a County most times 2 Citizens and Burgesses sometimes but one limiting the qualifications of their persons and summoning not only Great Officers and Peers but likewise Knights Citizens and Burgesses out of Ireland and particular persons by name amongst the Commons as in 32 Ed. 3. part 2. m. 32. dorso together with his making of new Burroughs by his Patents and authorizing them to send Burgesses to Parliam when they never sent any before there being now three times as many Burgesses of Parliament as there were in the reigns of King Edward the 1 2 and 3. as appears by the Writs in the Dorse of the Clause Rolls for their expences and wages are clear proofs and evidences that the King and his Council in the Lords House are the sole Judges of the elections of the Knights Citizens Burgesses of the Commons House and that they themselves have no power at all to seclude or eject any persons duly elected and sent thither by the Kings Writs though more or less than usual or from new erected Burroughs And if any City or Burrough which sends Members to the Commons House by the kings Charter or usage forfeit their Charters and Privileges for which the king seiseth them into his hands as in 49 H. 3. he seised Londons and others Liberties and Cambridges since he may deny to send them Writs to elect Citizens or Burgesses till their Franchises be restored and their Charters renewed and deny to grant them this liberty of Election any more if he please proceeding from his meer grace and grant to them at first and so to be restored out of Grace not Justice when forfeited by their default The Statute of 5 R. 2. Parl. 2. c. 4. The King willeth and commandeth it is assented to by the Prelates Lords and Commons That all persons which shall from henceforth receive the Summons of Parliament be he Archbishop Bishop Abbot Peer Duke Earl Baron Baronet knight of the Shire Citizen of the City Burgess of the Burgh or other singular person or Commonalty and come not at the said Summons except he may reasonably and honestly excuse himself to our Soveraign Lord the King he shall be amerced and otherwise punished as of old times hath been used to be done within this Realm Here the Excuse is to be made by the Knights Citizens Burgesses and Commons as well as Lords Spiritual and Temporal to THE KING not Commons House and if they cannot excuse themselves unto him then they are to be amerced as of old time have been used And that was never by the Commons House but
4. n. 19 20 21. upon these and other Petitions of forcible disseisins and for imprisoning the Abbot of Meniham in Devonshire THE KING LORDS adjudged that this Sir Philip Courtney should be bound to his good behaviour and committed to the Tower for his contempt From which records it is evident First that Members of the Commons house may be complained and petitioned against for misdemeanors and put to answer before the King and Lords in Parliament and there fined and judged not before the Commons house and that this was the antient way of proceeding Secondly that the Commons cannot suspend or discharge any of their fellow-Commoners or Knights from sitting in Parliament but only the King and Lords in full Parliament in whom the power of Judicature rests much less then can they expell or eject any of their Members by their own authority without the King and Lords concurrent consents No more than one Justice of peace Committee-man or Militia-man can un-un-Justice or â—move another since Par in parem non habet Imperium neither in civil military ecclesiastical nor domestical affaiâ— Thirdly that the power of restoring readmitting aâ—ended Member of the Commons house belongs not to the Commons themselves but to the King and Lords to whom the Commons in this case addressed themselves by petition for Courtneys readmission after his submission of the complaints against him to the arbitrement of those Members to whom the King and Lords referred the same In the Parliament of 17 Rich. 2. num 23. It was accorded and resolved by the King and Lords at the Complaint petition request of the Commons that Roger Swinerton who was endited of the death of one of their companions Iohn de Ipstones Knight of the said Parliament for the County of Stafford slain in coming towards the said Parliament by the said Roger should not be delivered out of prison wherein he was detained for this cause by bail mainprise or any other manner until he had made answer thereunto and should be delivered by the Law The Commons alone by their own power having no authority to make such an order even for the murther of one of their own Members without the King and Lords who made this ordinance at their request I find this objected against King Richard the 2. in the Parliament of 1 H. 4. n. 37. That he frequently sent his Mandates to Sherifs to return certain persons named only by himself and not freely chosen by the people to be knights of Shires thereby to effect his own ends and oppress the people with Subsidies But yet I find not in all his reign any one Knight thus unduly returned questioned by the Commons or suspended the House much less ejected by them or by the King and Lords upon the Commons complaint thereof unto them A clear evidence they had then no such power to eject their Members for being unduly elected returned as how they use In the Parliament of 20 R. 2. n. 14 15 16 17. The King being highly offended with the Commons for receiving Haxyes Bill said that the Commons thereby had committed an offence against him his dignity and liberty the which he willed THE LORDS to declare the next day to the Commons Who thereupon delivering up the Bill came fort with before the King shewing themselves very sorrowfull declaring to him that they meant no harm and submitting themselves to the King herein most humbly craved his pardon Whereupon the Chancellor by the Kings commandment declared That the King held them excused and the King by mouth declared how many wayes they were bound unto him Lo here the whole House of Commons submit themselves to the King in the House of Lords as Judges of them and their misdemeanors in Parliament and crave pardon for offending him In the Parliament of 2 H. 4. n. 45 46. The Commons house petitioning the King that the Act for his moderation of the Statute against Provisions might be examined for as much as the time was recorded otherwise than was agreed by them The King granted thereunto by protestation that the same should be no example where after Examination by the Bishops and Lords they affirmed the same to be duly entred which the King also remembred Whereupon the COMMONS the same day for this their misinformation came into the Lords House and knéeling before the King beseeched the King to pardon them if happily they through ignorance had or should offend him which the King granted Here the Bishops and Lords are Judges of the Commons misinformation misentry of an Act and the King of their Offence against him in Parliament by this misinformation which he pardons them upon their humble submission and no doubt might have punished them for it by the Lords assent and advice had he pleased So farr are they from being Judges in Parliament that themselves may there be judged if they therein offend as all their Speakers usual protestations and petitions to the King when presented evidence That the Commons may have liberty of speech and that if any Members in the House of Commons in communication and reasoning should speak more largely than of duty they ought to doe that all such offences may be pardoned which the King may punish if there be cause unâ—eâ—â—â— he pardon it of record upon the Speakers Protestation before hand Sir Edward Cook himself as well as the Parliament Rolls and experience informs us of these particulars touching the Speakers of the Commons House in Parliament their chiefest Member 1. That though the Commons are to chuse their own Speaker and that by the kings special command and license to them in every Parliament since they had one not with due â— who likewise prescribes them the time when to present him yet the use is as in the Conge de eslâ—yer of a Bishop that the king doth name a discreet and learned man to them whom the Commons do eâ—ect pro formâ— only because he cannot be appointed for them without their election being their mouth and â—usted by them 2ly That after the Commons choice the King may refuse him 3ly That after he is chosen he must be presented to the king by the Commons in the Lordâ— House for his approbation and confirmation in that plaâ—s the Commons sending up some of their Members to acquaint the Lords Spiritual and Temporal that according to the Kings command they had chosen such a one their Speaker and are ready to present him at the â—me appointed 4ly That where he is thus presented he is in disable himself for so weighty a service and to make sutâ— to the King to be discharged and a more sufficient man chosen in his place To which I shall adde that upon this excuse the king may discharge him if he please and command the Commons to elect another as King Henry the â— did discharge Sir John Popham when presented Speaker to him by the Commons in the Parliament
made and if he do not he shall be attainted of the said deed and pay to the party grieved his double damages to be taxed by the Judges of the said Bench for the time being or by Enquest if need be and also he shall make fine and ransom at the kings will which was accordingly executed as appears by 8 H. 4. f. 13 14. And moreover it is accorded in the same Parliament that likewise it be done in time to come in case like By which Petition and Act it is most apparent 1. That the King and Lords have the sole power of judging and punishing the breaches of Privilege of Parliament by batteries wounding or imprisonment and that both in the cases of Knights Citizens and Burgesses and of their menial seruants in such and the like cases 2ly That this Act gives the Commons no power at all to punish any man for breach of privilege in like case but only prescribes a certain remedy for time to come by imprisonment action double damages fine and ransom at the kings pleasure in the Kings Bench not Commons House or Parliament who are not fit to be troubled with such particular cases of privileges which would interrupt the more publike affairs Hence THE KING willing to provide for the ease and tranquillity of them that came to his Parliaments and Councils by his commandment hath ordained and established upon the Commons Petition by the Statute of 11 H. 6. c. 13. That the self same remedy proceeding damages and punishment shall be had in the Kings Bench not Commons House or Parliament as was prescribed in 5 H. 4. c. 6. against any person that shall doe any assault or affray to any Lord Spiritual or Temporal Knight of the Shire Citizen or Burgesse coming to the Kings Parliament or Council by his command How then the Commons can judge or determine such violation of privileges now against these Statutes and presidents and create themselves Judges of them transcends both my Law and reason In the Parliament of 7 H. 4. as I find in a special note though not in the Parliament Roll Sir John Tibetot the Speaker prayed que plest le Roy Seigniors That it would please THE KING AND LORDS that Robert Clifford companion of Richard Chiderough chosen knights for the County of Kent might appear for them both and doe all in both their names as if both of them were present in Parliament which the king and Lords assented to In the Parliaments of 8 H. 4. n. 83. 139. and of 11 H. 4. n. 54. Upon Petitions and complaints of the Commons to the king and Lords there were two Statutes made to prevent the abuses and false retorns of Sherifs touching the Elections of knights of Shires to inflict penalties on them by a Law which formerly were arbitrary at the kings and Lords discretion 7 H. 4. c. 15. and 11 H. 4. c. 1. The penalty inflicted by these Acts on the Sherif for a false return contrary to these Acts is only 100 l. fine to the king and such undue retorns are from thenceforth to be examined and tryed not by the Commons alone by information without Oath as now but by the Justices assigned to take assizes and that by Enquest and due examination upon trial before the said Justices which is likewise afterwards ratified by the Statutes of 6 H. 6. c. 4. 8 H. 6. c. 7. 32 H. 6. c. 15. wherof if the Sherif be found guilty he shall forfeit 100 l. to the king and the knights of Counties unduly returned shall lose their wages of the Parliament of old time accustoned not be turned out by a Committee of Privileges and others chosen in their places by the Commons Order as now And the Statutes of 1 H. 5. c 1. 6 H. 6. c. 4. 8 H. 6. c. 7. 12 H. 6. c. 2. 32 H. 6.15 touching elections of knights Citizens and Burgesses made since the former do not alter this Law nor give the House of Commons the least power or authority to judge or determin the legality or illegality of any elections but leave this to the King and Lords to redress as at first before their making and give the knights duly chosen but not returned 100 l. damages against the Sherif and Citizens and Burgesses 40 l. against Mayors and Baylifs who make false returns by way of action of Debt in the kings Courts at Westminster where the parties must sue for relief or in the Starchamber before the Kings Lords and Council as in Bronkers case Trin. 1. Eliz. not in the Commons house as these Statutes and presidents in our Law-books Dyer f. 113.168 Plowden f. 118. to 131. Old Book of Eniries f. 446 447. resolve How then the Commons are now becom sole Judges of all false returns and elections and that per legem et consuetudinem Parliamenti against all these Acts and presidents let Sir Edward Cooke and others resolve me and the intelligent when they are able not by the objected late arbitrary presidents which are of no value but by antient usage and Law of our Parliaments and solid reason which cannot be produced for to justifie these late Innovations and extravagances It is most true that in the cases of undue elections and breaches of privilege of the Commons house Members or Servants the King and Lords were antiently sole Judges not the Commons in any one case and that upon the Commons own Petitions as the premises evidence and I shall fully manifest by these ensuing punctual presidents In the Parliament of 8 H. 6. n. 39. The Commons petitioned the King for a Law to be made to prevent the manifold tumults uproars at and disorders in the election of knights of the shire by the vulgar rabble and meaner sort of people of small or no estate most busie and tumultuous in them having then a voice that the King by advice and assent of the Lords Spiritual and Temporal would seclude all from having voices at such elections for the future but freeholders who held 40 s. freehold by the year above all reprisals more than 40 l. a year now or upwards Which the King and Lords assented to and the Statute of 8 H. 6. c. 7. was hereupon made agreeable to this petition with that of 10 H. 6 c. 2. by like Petition in pursuance of it In this very Parliament of 8 H. 6. rot parl n. 57. One William Lake servant to William Mildred a Burgess of London was taken in execution for a Debt and committed Prisoner to the Fleet contrary to the privilege of the Commons house whereupon the Commons petitioned the King that by the advice and assent of the Lords Spiritual and Temporal at the special request of the Commons he might be enlarged which the King and Lords assenting unto gave order for his release and authorized the Chancellor to appoint certain Commissioners to take him again in Execution after the Parliament ended The Commons not then claiming the least power
Parliament which prerogative of the Court is so great as our learned Counsel informeth us as all Acts and Processes coming out of any other inferiour Courts must for the tiime cease and give place to the highest And touching the party it was a great presumption in him knowing our servant to be one of this House and being warned thereof before would nevertheless prosecute this matter out of time and therefore was well worthy to have lost his debt which I would not wish and thereforefore doe commend your equity that having lost the same by Law have restored him to the same against him who was his debtor and this may be a good example to other not to attempt any thing against the privilege of this Court but to take the time better Whereupon Sir Edward Montague then Lord chief Justice very gravely declared his opinion confirming by divers reasons all that the King had said which was assented unto by all the residue none speaking to the contrary The Act indeed passed not the higher House for the Lords had not time to consider of it by reason of the dissolution of the Parliament From this President I shall observe 1. That this is the first President that the Commons house ever sent their Serjeant to demand a Member imprisoned without first acquainting the King and Lords whereupon the Serjeant was thus resisted affronted 2ly That upon the Serjeants report of this resistance and contempt the Commons house did not undertake to punish it themselves though there were many of the Kings privy Council then of and in it but according to former presidents went and complained thereof in rhe Lords house praying them to redress and punish it 3ly That all the Lords and Judges there assembled judged the contempt to be very great 4ly That thereupon being busied with other weighty publike affairs they by special order referred the examination punishment thereof to the Commons House 5ly That thereupon the Commons by vertue of this special reference from the Lords not by their own inherent authority or Jurisdiction sent for the delinquent parties examined the contempt imprisoned the Sherifs of London and White in the Tower and the under Officers in Newgate 6ly That afterwards they acquainted the King and Lords with their proceedings who approved and commended the same 7ly That they would have confirmed part of their judgement by an Act to discharge Ferrers of the execution and not to revive it after the Parliament which passed but by 14. voices and never passed the Lords house who would not assent thereto All which particulars unanswerably evidence that the judgement and punishment of contempts and breaches of privilege of the Commons house and their Members belong wholly and solely to the Lords not to the Commons house at all unless by special order and reference from the Lords to the House of Commons who are to be informed of their proceedings and censures upon such a reference and to ratifie them by their assents or some Act of Parliament Therefore the conclusion of Crompton from this president and Dyer f. 60. which hath not a syllable to this effect That any Knight Burgess Baron of the 5. Ports or others called to the Parliament of the King shall have privilege of Parliament during the Parliament or Session of it so that he who arrests any of them during that term shall be imprisoned in the Tower by the Nether House of which he is and shall be put to a fine and the Kéeper also if he will not deliver him when the Serjeant at Arms shall come for him by command of the House is but a meâ—r mistake And the late objected Presidents have been grounded only upon his Authority and the mistaking or misapplying of Ferrers case W. Trewynnard a Burgess of Parliament in 35 H. 8. the very next year after this case of Ferrers was taken in execution upon an Exigent grounded on a Capias ad saâ—isfaciendum by the Sherif of Cornwal upon a complaint thereof to the King and Lords in Parliament there issued a Writ of Privilege in the Kings name during the Sessions of Parliament to R. Chamond then Sherif of Cornwal to release him reciting that he was a Burgess and likewise the Custom of the privilege of Parliament whereupon he was released the personal attendance of every Member being so necessary in Parliament that he ought not to be absent for any business because he is a necessary Member and therefore ought to be privileged from arrests Now the Parliament consisting of 3. parts to wiâ— of the King as chief Head the Lords the chief and principal Members of the Body and the Commons the Inferiour Members making up one body of Parliament as Chief Justice Dyer there resolves these inferior Members have no means to relieve themselves when their persons are arrested but by complaint to the Head or Chief and principal Members of this body as in all other Corporations where the Mayor Recorder Aldermen Justices and chief Officers are the only Judges not the Commons to hear and determine all injuries done to any Commoner Pasch 1. 2. Phil. Mariae Rot. 16. B.R. The Attorney General in the Kings and Queens name exhibited an Information against 34. Knights Citizens Burgesses of the Commons House for absenting themselves and departing from the Parliament then held without the Kings and Queens special license contrary to their Prohibition and in manifest contempt of the said King Queen and Parliament and to the great detriment of the state of the Commonwealth of this Realm and the ill example of others The Great Lawyer Edmond Plowden being one pleaded he was present at the Parl. from the very beginning of it to the end and that he departed not from it which he was ready to verify as the Court should direct and prayed judgement to be discharged Edward Harford another of them pleaded a special license to depart whereupon his prosecution was stayed but so that Process â—ill issued against the rest The Commons house therefore iâ— Q. Maries reign were not reâ—ted sole Judges of their own Members in cases of departure from Parliament in contempt to the publike prejudice and ill example of others as now they deem themselves by Sir Edward Cooks new-invented Law and Custom of Parliaments In the Parliament of 18 Eliz. Feb. 22. A report was made to the Commons House by a Committee appointed to consider how Mr. Halls man then a Member and imprisoned against his privilege might be released that the Committee found no President for setting at large by the Mace any person in arrest but only by Writ of Privilege And that by divers presidents and records perused by the Committee every Knights Citizen or Burgess requiring privilege for his Servant hath used to take a Corporal Oâ—th before the Lord Chancellor that the paâ—ty for whom such Writ is prayed came up with him and was his servant at the time of the arrest made Whereupon Mr.
2. c. 4. 7 H. 4. c. 15. 11 H. 4. c. 1. 1 H. 5. c. 1. 6 H. 6. c. 4. 8 H. 6. c. 7. 10 H. 6. c. 2. 11 H. 6. c. 11. 23 H. 6. c. 15. which cite Our Lord the King willeth commandeth and Ordaineth or hath Ordained by advice and assent of the Lords Spiritual and Temporal upon complaint or at the special request of the Commons to shew that they are only Petitioners not Judges nor Ordainers in all or any of them give them not the least title of Jurisdiction in cases of elections or privileges And therefore according to the resolution of all the Judges Hill 2. Jacobi in the case of Penal Statutes Cook 7 Rep. f. 37. That the prosecution of penal Statutes cannot by law be granted to any nor be prosecuted or executed in any other order or manner of proceeding than by the Acts themselves is prescribed and provided the Commons cannot against the Letter and provision of all those Acts be Judges of them in any other manner or order than they prescribe As for their proceedings in the Committee of Privileges touching Elections since they have interposed in them as they have been very irregular illegal in respect all the Witnesses they examin touching them are unsworn and give their testimonies without Oath upon which they Ground their Votes So they are for the most part very partial and for that cause it is usually stiled The Committee of Affections he that can make the most Friends and strongest party being sure to carry the election for the most part both at the Committee and in the House though never so foul as I could instance in many cases of late times and more especially in the case of the Election of Cirencester 1647. too foul to blot my paper with For their suspending secluding ejecting their own Members I have sufficiently manifested its illegality long since in my Ardua Regni being a late dangerous president began within our memories the sad effects and consequences where of we now discern by these dangerous gradations 1. The Commons began to seclude one another upon pretence of undue elections and retornes in Queen Elizabeths reign but not before which they have since continued and that rather to strengthen or weaken a party in the House then to rectifie undue elections and retorns which a good Act would easily do 2ly In the later and last Parliaments of King Charls they began to seclude Projectors though duly elected 3ly They proceeded to suspend and eject such who were royallists and adhered to the late Kings party 4ly They proceeded to imprison and eject those Members whom the Army Offices impeached or disliked as opposite to their designs 5ly The Minority of the House at last by the power of the Army secured secluded expelled the Majority and 50 or 60. near 400 Members and made themselves the Commons House without them 6ly They then proceeded to vote down and seclude both King and House of Lords then voted themselves to be the Parliament of England sole Legislators and supream authority of the Nation without either King or House of Lords or majority of their fellow Members prescribing an Engagement under strictest penalties against K. House of Lords to seclude them from all future Parliaments 7ly Hereupon the Army Officers and Souldiers who made continued them an absolute Parliament and first of all subscribed the Engagement to be true and faithfull to them without King and House of Lords at last by Divine Justice against their very engagements to them secluded suppressed them all as they had done the King Lords and their fellow Members and declared them to be actually dissolved and no longer to be a Parl. or the supreme authority of the Nation 8ly They then proceeded to chuse and nominate a Parliament at Whitehall alone without the peoples election and then one part of them without the rest resigned their new soveraign power and secluded dissolved the residue and turned them out of doors 9ly They then proceeded to a New model of Parliaments wherein they disabled most of the Freeholders Citizens and Burgesses of England to be either Electors or elected Members contrary to their privilege and all former laws for elections appointed those they stiled the Council of State at Whitehall to seclude what Members they pleased though duly chosen according to their new ill-tuned instruments before or without any examination or reason rendred for their seclusion to the secluded Members or their Electors for their new created Parliaments by which means they secluded whom and how many they pleased in all their late conventions And most of those Reipublican Members and some cashiered Army Officers who were most active in securing secluding their fellow Members in December 1648. and in voting down the King and House of Lordspunc who may now justly say as Adoâ—bezâ—eh once did in another case Judg. 1.8 As I have done unto-others so God hath requited me being secluded secured cashiered dissolved and some of them sent prisoners to remote Castles as they secluded and thus imprisoned my self with other their fellow Members without cause and most justly branded in several Pamplets and Declarations for a CORRVPT PARTY carrying on their own ends to perpetuate themselves in their late Parliamentary and supream Authority never answering the ends which God his people and the whole Nation expected from them but exercizing an arbitrary power at Committees and elsewhere over them likely to swallow up the antient Liberties and Properties of the People to increase their vexations c. as they had most unjustly taxed the secluded Members 1648. for A CORRVPT MAJORITY acting contrary to their trusts Which I desire them now seriously to lay to heart and to acknowlege Gods Soveraign Justice therein 10ly Their new Major Generals in their last elections prescribed to all Countries and to most Cities Burroughs by letters lists of names sent to them what persons they must elect secluding those they elected which were not in their lists and caused Sherrifs to return many they nominated though never elected but protested against by those who were to chuse them rather to carry on private interests designs than the private or publike good Laws Liberties Properties Peace Ease of the Nation from importable Taxes Excizes Slaverie and armed guards and to set up private Conventicles Parties instead of free publike English Parliaments duly elected and constituted These the sad effects of this Innovation and Usurpation of the Commons over their own Members by the objected Presidents which by Divine Justice have made all their new modelled Conventions abortive successess yea to end in sudden confusions and unexpected dissolutions ever since Besides from this their late fining imprisoning and judging of their fellow Members in the House they proceeded in the last long Parl. to make almost every Committee of the Commons House a most arbitrary tyrannical Court of Justice independent on the
Premises THe Principal scope of the Precedent Plea for the Lords and House of Peers being only to justifie and ratifie their ancient just Right to sit and vote in all English Parliaments and Great Councils or State and their Judicial Authority in them without the Commons especially in Criminal Causes then only controverted contradicted by Lilbourne Overton their Disciples I reputed it both useful and necessary to superadde thereto some memorable Presidents in former ages which no Vulgar writers of our English Parliaments have remembred of the Kings and Lords Proceedings Judicature in Parliament in Civil and Ecclesiastical Causes of publick and private concernment as no way heterogeneal but homogeneal to my Theam to make this Plea more compleat and communicate some more knowledge of Parliamentary Affairs and Proceedings both to the Ignorant and Learned in this declining age wherein learning and learned men of publick spirits in all Professions are so much decayed and little Visible Probability left of any speedy reparations of this inestimable losse for want of publick encouragement I shall proceed herein only in a Chronological Method as I have done for the most part in the premises beginning with the ancientest president I meet with of this kind and so descending to succeeding ages About the year of Christ 536 Our famous Brittish victorious King Arthur by his Letters and Messengers summoned all the Kings Prelates Dukes and Nobles subject to him to meet at the City of Caerleon on the feast of Pentecost then to be new crowned and settle the peace and affairs of his Realmes whereupon there assembled at that time and place thirteen Kings three Archbishops and many Princes Dukes Consuls Earls and LORDS whose names are registred in Geoffry Monmouth whiles they were thus convened there arrived twelve men with letters from Lucius Tiberius procurator of the Roman Republick demanding in high language The Tribute of Brittain which the Senate command King Arthur to pay with the arrears injuriously detained because Julius Caesar had reserved it upon his conquest of Brittain and hee with other Romane Emperours had long received it summoning him likewise to appear at Rome in August the year following to satisfie the Senate for the injuries done them and submit to the sentence their Justice should pronounce or else denouncing war against him This Letter being publickly read before all the Kings Princes Dukes and Nobles present the King consulted with them craving their unanimous advise and sense concerning this business affirming That this Tribute was exacted ex irrationabili causa against all reason for he demanded it to be payd as due because it was paid to Julius Caesar and his successors who invited by the devisions of the old Brittains arrived with an Army in Brittain and By force and violence subjected the Country to their power shaken with domestick commotions Now because they obtained it in this manner vectigal ex eo injuste receperunt therefore they unjustly received tribute out of it Nihil enim quod vi violentia acquiritur juste ab â—llo possidetur qui violentiam intulit irrationabilem ergo causam praeâ—endit qua nos jure sibi tribitarios arbitratur For nothing which is acquired by force and violence is justly possessed by any man who hath offered the violence Therefore hee pretends An irrationable cause whereby hee reputes us to be Tributaries to him c. The whole Council upon debate fully assented to this opinion and promised the King their assistance against the Romans in this cause Whereupâ—n King Arthur returned this answer That he would by no mâ—ans render them tribute neither would he submit himself to their judgement concerning it nor repare to Rome c. An expresse resolution That Conquest by warr force and violence is no good just nor lawful but an unlawful and unjust Title to any Tributes or Possessions which these who now pretend they are Conquerors and us a meer conquered Nation and therefore they may impose what Taxes Excises Tributes Laws Executions they please upon us when as they were only raysed waged commissioned to defend preserve our Laws Liberties King Parliament and Kingdomes not to conquer or enslave them may do well to consider In the year of our Lord 799. King Kenulfus upon the petition and complaint of Athelardus Arch-Bishop of Canterbury consentientibus EPISCOPIS ET PRINCIPIBUS MEIS assembled in a Parliamentary Council restored four parcels of Lands to Christ-Church in Canterbury which King Offa heretofore had taken from this Church and conferred on his Officers Kenulfus King of Mercia calling a Provincial Council held at Cloveshe Anno Dom. 800. wherein all the Bishops Dukes Abbots and Nobles of every order were assembled complaint was made therein that after the death of Arch-Bishop Cuthhert Verheb and Osbert led by a malignant spirit stole away the evidences and writings of the Monastery of Cotham and all the Lands thereunto belonging given by King Athelbald to our Saviours Church in Canterbury and brought them to Kenulfus King of the West-Saxons who thereupon converted the said Monastery and Lands to his own use After which â—regwin and Jambert Arch-Bishops of Canterbury complained of this injurie done to the Church in sundry Councils both to King Kenulfus and Offa King of Mercia who took from Kenulfus the Monastery of Cotham with many other Lands and Towns and subjected them to the Realme of Mercia At last Kenulfus induced by late repentance restored the evidences and writings of the said Monastery together with a great summe of mony to the said Church to prevent the danger of an excommunication but King Offa as hee received the said Monastery without writings so hee retained them during his life and left them to descend to his heirs without any evidence after his death whereupon Athelardus the Arch-Bishop and other wise men of Christ-Church brought these Evidences and Writing touching Gotham into this Council of Clovesho where when they had been publickly read OMNIUM VOCE DECRETUM EST that it was just the Metropoliticall Church should bee restored to the said Monastery of which shee had been unjustly spoiled for so long a time Athelardus receiving also in this Council the dignities and possessions which King Offa had taken from Jamberâ— annuente ipso Rege as Gervasius records In a Council held at Clovesho Anno 813. Upon complaint of the Arch-Bishop of Canterbury the Arch-Bishoprick of Litchfield was dissolved and the Bishopricks annexed to it by King Offa taken from the See of Canterbury restored and reunited thereunto by the consent of King Kenulfus his Bishops Dukes and Nobles who writ a Letter to Pope Leo for that purpose unanimo consilio totius sanctae Synodi And in this Council also other lands were restored to the Bishop of Worcester and other controversies between Bishops concerning their Lands and Limits decided In another Council at Clovesho Anno 821. Wherein King Kenulfus Wulfred Arch-Bishop of Canterbury with the rest of the Bishops Abbots
was again resolved in another Parliamentary Assembly held that year by King Henry the first the Bishops Abbots Great men and Nobles of the Realme as you read before p. 173. Anno 1109. there sprung up another â—ot contest between Arch-Bishop Anselme and Thomas Elect of York about the oath of subjection and canonical obedience which was again debated and after Anselmes death again debated and finally setled in another Parliamentary Council by the King Bishops Nobles and Barons of the Realme of which at large before p. 174 175 176 177. The same Debate coming again between Ralph Arch-Bishop of Canterbury and Thurstan of York after his returne from Exile Anno 1121. was again concluded omnium Concilio Episcoporum Principum Procerum Regni p. 180. After many years intestine bloody wars between the perjured Usurper King Stephen Mawde and Duke Henry her Son for the Crown of England Anno 1153. apud Walingford in conventu Episcoporum et aliorum Regni Optimatum there was a final accord made between Stephen and Henry touching the inheritance and descent of the Crown that Stephen should adopt and constitute Henry for his son heir and successor to the Crown of England immediately after his death which Stephen should enjoy during his life yet so as that Henry should bee chief Justice and Ruler of the Kingdome under him This accord made between them by the Prelates Earles and Barons of the Realme was ratified by King Stephens Charter and subscribed by all the Bishops Earles and Barons in their Parliamentary Council at Walingford The difference and suit between King Henry the 2d and Roderic King of Conact in Ireland touching his Kingship Royalties Dominions Services Homage Loyalty and Tribute to King Henry were heard decided and a final agreement made between them in a great Parliamentary COUNCIL held at Windeshores Anno 1175. wherein King Henry the 2d and his Son with the Arch-bishops Bishops Earles and Barons of England without any Commons were present who made and subscribed this agreement recorded at large in Houeden where you may peruse it King Henry the 2d Anno 1177. Celebrato generali CONCILIO apud Northampton after the feast of St. Hilary by the advice of his Nobles restored to Robert Earl of Leicester all his Lands on this side and beyond the Sea as hee had them fifteen daies before the Warre except the Castles of Mounsorel and Pasci Hee likewise therein restored to Hugh Earle of Chester all the lands which hee had fifteen daies before the warre and gave to William de Abbine Son of William Earle of Arundel in the County of Southsex And in the same Council Deane Guido resigned into the hand of Richard Arch-Bishop of Canterbury the deanery of Walteham and all his right which hee had in the Church of Walteham quietum clamavit simpliciter absolute similiter fecerunt canonici seculares de Walteham de praebendis suis resignantes eas in manis Archiepiscopi sed Dominus Rex dedit eis inde plenariam recompensationem ad Domini Cantuariensis Archiepiscopi aestimationem Deinde Dominus Rex authoritate Papae Domini instituit in eadem Ecclesia de Walteham canonicos regulares de diversis domibus Angliae sumptos constituit Walterum de Garent canonicum sumptum de Ecclesia de Osencie Abbatem primum super congregationem illam magnis redditibus domibus pulcherrimis dotavit illos And then hee expelled the Nunnes out of the Monastery of Ambresbury for their incontinency and distributed them into other Nunneries there to bee kept more strictly under restraint and gave the Abby of Ambresbury to the Abbesse and house of Frum Everoit to hold it for ever Sanctius King of Navar and Alfonso King of Castile in the year 1177. submitted the differences between them concerning certain Lands Territories Towns and Castles to the determination of King Henry the 2d who thereupon summoned a Parliamentary Council of his Bishops Earles Nobles and Barons to hear and decide it by their advice Wherein the case being propounded debated and opened before them by the Ambassadours and Advocates of both Kings appeared to be this That King Sanctius during the minority of King Alphonsus an Orphant his Nephew Pupil and innocent from any crime unjustly and forcedly took from him without any demand hearing or Title divers Territories Towns and Lands there specified which his Ancestors had enjoyed and of right descended to him which hee forcibly detained Whereof hee demanded restitution and dammages On the other side Sanctius complained that Alphonsus the Emperour Father of this Alphonsus had by force of armes unjustly dispossessed his Grandfather of the Kingdome of Navarre after whose death Garsias his Nephew and next heir by the help of his friends and subjects recovered the greatest part thereof from the Emperour but not all Who dying leaving his Son Alphonso an infant with whom Sanctius made a league for ten years Alphonso during the League took by force of armes divers Castles Towns and Lands from Sanctius being his inheritance who thereupon demanded restitution both of the Castles Towns Lands and Territories taken from his Grandfather by Alphonsus his Father and from himself by Alphonsus together with the maine profit of the latter quia sine ordine judiciario ejectus est King Henry having fully heard their cases by the Advice and Assent of his Bishops Earles and Barons adjudged that both these Kings should make mutual restitution of what had been forcibly taken from either party together with the mean profits and dammages for part of them by an award and judgement under his Great Seal subscribed by all his Bishops Earles and Barons which recites super quaerelis vero praetaxatis de castellis terris cum omnibus terris pertinentis suis hinc inde violenter et injuste ablatis cum nichil contra Violentiam utrinque objectam à parte alterutra alteri responderetur nec quicquam quo minus restitutiones quas petebant faciendas essent alligaretur Plenariam utrinque parti supradictorum quae in jure petita erant fieri restitutionem adjudicabimus A clear Parliamentary resolution and judgement in point That Territories Lands Towns Castles injuriously taken by one King from another by force of armes and warre without just Title to them ought in Law and Justice to bee restored to the right heirs and owners of them and that Conquest and the longest Sword are no good Titles in Law or conscience against the right heir or inheriter which I desire those Sword-men and Lawyers who now pretend us a conquered Nation determine Conquest or the longest Sword a just Title to the Crowns Lands Revenues Offices Inheritances Houses Estates of other men now sadly to consider together with the sacred Texts Hab. 7. Micha 2.1 2 3 4 5. Job 20.10 18 19 20. Obad. 10. to 17. Ezek. ch 19. 35. Isa 33.1 1 King 21.1 to 25. Matth. 21.33 to 41. Luk. 20.14 to 17. ch 19.8
the Prior of Coventry the King granteth by Assent of the Bishops and Lords that no man do break the head of their Conduit nor cast any filth into their water called Sherbouâ—n on pain of ten pound and treble dammages to the Prior. In the Parliament of 9. H. 5. n. 12. Upon long debates of the Lords and Iustices it was resolved by them that the Abbot of Ramsy should have no prohibition against Walter Cook parson of Somersham who sued for Tithes of a Meadow called Crowland Mead in the hands of the Abbots Tenants In the great case of Precedency between the Earl Marshall and Earle of Warwick in the Parliament of 3. H. 6. n. 10 11. c. The Lords being to bee Iudges of the same suspended both of them from sitting in the house till their case was fully heard and they all voluntarily swore on the Gospel that they would uprightly judge the case leaving all affection In the Parliament of 11. H. 6. n. 32 33 34 35. Upon a Petition the King and Lords in Parliament adjudged the Dignity Seigniory Earledome of Arundel and the Castle and Lands thereunto belonging to John Earle of Arundel who proved his Title thereto by a deed of Entayle against the Title of John Duke of Norfolck who layed claim thereunto And in the Parliament of 39 H. 6. n. 10. to 33. The claime of the Duke of York and his Title to the Crown of England against the Title of King Henry the 6 th was exhibited to the Lords in full Parliament the Lords upon consultation willed it to be read amongst them but not to bee answered without the King The Lords upon long consultation declared this Title to the King who willed them to call his Justices Sergeants and Attorney to answer the same Who being called accordingly utterly refused to answer the same Order thereupon was taken That every Lord might therein freely utter his conceit without any impeachment to him In the end there were five objections made against the Dukes Title who put in an answer to every of them which done the Lords upon debate made this order and agreement between the King and Duke That the King should injoy the Crown of England during his life and the Duke and his heirs to succeed after him That the Duke and his two sons should bee sworne by no means to shorten the dayes or impaire the preheminence of the King during his life That the said Duke from thenceforth shall be reputed and stiled to bee the very Heir apparent to the Crown and shall injoy the same after the death or resignation of the said King That the said Duke shall have hereditaments allotted to him and his sons of the annual value of ten thousand marks That the compassing of the death of the said Duke shall bee Treason That all the Bishops and Lords in full Parliament shall swear to the Duke and to his heirs in forme aforesaid That the said Duke and his two sons shall swear to defend the Lords for this agreement The King by Assent of the Lords without the Commons agreeth to all the Ordinances and accords aforesaid and by the Assent of the Lords utterly repealeth the statute of intayle of the Crown made in 1. H. 4. so alwaies as hereafter there be no better Title proved for the defeating of their Title and this agreement by the King After all which the said Duke and the two Earles his sonnes came into the Parliament Chamber before the King and LORDS and sware to performe the award aforesaid with protestation if the King for his part duly observed the same the which the King promised to do All which was inrolled in the Parliament Rolls Lo here the Lords alone without the Commons judge and make an award between King Henry the 6th and the Duke of York in the highest point of right and title that could come in question before them even the right and title to the Crown of England then controverted and decided the King and Duke both submitting and assenting to their award and promising swearing mutually to perform it which award when made was confirmed by an Act passed that Parliament to which the Commons assented as they did to other Acts and Bills And here I cannot but take special notice of Gods admirable Providence and retaliating Justice in the translation of the Crown of England from one head family of the royal blood to another by blood force war treason and countenance of the Authority of the temporal and spiritual LORDS and COMMONS in Parliament in the two most signal presidents of King Edward and King Richard the 2 d. which some insist on to prove the Commons Copartnership with the Lords in the power of Judicature in our Parliaments the Histories of whose Resignations of their Regal Authority and subsequent depositions by Parliament I shall truly relate Anno 1326. the 19. of Ed. 2d Queen Isabel returning with her Son Prince Edward and some armed forces from beyond the Seas into England most of the Earles and Barons out of hatred to the Spencers and Kingâ— repaired to them and made up a very great army The King thereupon proclaimed that every man should resist oppose kill them except the Queen Prince and Earle of Kent which they should take prisoners if they could and neither hold any correspondency with them nor administer victuals nor any other assistance to them under pain of forfeiting their bodies estates But they prevailing and the King being deserted by most hee fled into Wales for shelter Whereupon Proclamation was made in the Queens army every day that the King should return and receive his Kingdome again if hee would conforme himself to his Leiges Quo non comparente Magnasâ—es Regni Hereâ—ordiae Concilium injeâ—unt in quo filius Regis Edwardus factus est Cusâ—os Angliae communi Decreto cui cuncti tanquam Regni custodi fidelitatem fecerunt per fidei sacramentum Deinde Episcopum Norwicensem fecerunt Cancellarium Episcopum vero Wintoniensem regni Thesaururium statuerunt Soon after the King himself with most of his evil Counsellors were taken prisoners being betrayed by the Welch in whom they most confided Hagh Spencer Simon Reding Baldoik and others of the Kings party being executed at Hereford Anno 1327. the King came to London about the feast of Epiphany where they were received with great joy and presents Then they held a Parliament wherein they all agreed the King was unworthy of the Crown and fit to be deposed for which end there were certain Articles drawn up against him which Adam de Orleton Bishop of Winchester thus relates in his Apology i Ea autem quae de Consilio et assensu omnium Praelatorum Comitum et Baronum et totius Communitatis dicti Regni concordata ordinata fuerunt contra dictum regem ad amotionem suam a regimine regni contenta sunt in instrumentis publicis Reverendo patre domino J. Dei
gratia nunc Cantuariensi electo tunc Wintoniensi Episcopo et Angliae Thesaurario câ—nceptis et dictatis manu magistri Willielmi de Mees Clerici sui Secretarii publici Notari conscriptis et in publâ—cam formam redactis Quam quidem concordiam ad mei excusationem duxi praesent bus inferendam quae talis est Accorde est qe sire Edward fiz aisne du roy ait le government del Roialme et soit rois Coronne par les Causes qe sensiwent 1. Primerment Pur ceo qe la persone ly Roy nest pas suffisaunt de governer Car en touz son temps ad il este mene et governe par autres qe ly ount mavoisement consaillez a deshoneur de ly et destruction de sâ—int Eglise et de tout son people saunz ceo qe il le vousist veer ou conustre le quel il sust bon ou mavoys ou remedie mettre ou faire le vousist quant il fuist râ—quis par les graunts et sages de sâ—n Roialme ou suffrir qe amende fuist faite 2. Item Par tout son temp 〈◊〉 se voloit doner a bon consail no le croire ne a bon governemeâ—t de son Roialm meys se ad done toux jours as ouraignes et occupationes nient covenables entre lessaunt lesploit des bosoignes de son Roialme Item Par defaute de bon governement ad il perdu le Roialme Descoce et autres terres et seignuries en Gascoygne Hytland les quex son pere li lessa en pees amiste ly Roy de Fraunce et detz moults des autres graunts 4. Item Par sa fierte qualte par mavoys consail ad il destruit seint Eglise les persones de seint Eglise tenuz en prisoun les uns Et les alires en destresce et auxint â—lusours graunts et nobles de la terre mys a hountose mâ—nt enprisâ—nez exulâ—tz disheritez 5. Item La ou il est tenuz par son serement a faire droit a toux il ne bad pas volu faire pur son propre profâ—it et convetise de ly de ces mavois conâ—saili es â—e ount este preâ— de ly Ne ad garde les autres pointz del serement qil fist a son corounement si com iâ— feust tenuz 6. Item Il deguerpist son Royalme et fist taunt come en ly fust qe son Roialme son poâ—ple fust perduz qe pys est pur la crualte de ly defaute de sa personne il est trove incorrigible sauntz esperaunce de amendement les quex choses fount si notoires qil ne poount estre desdiâ—z The form and instrument of his deposition is thus recorded by Ranulp Cistrensis and Henry de Knyghton Also that year in the Octaves of Twelfth day was made a Parliament at London There BY ORDINANCE with a solemn message is sent to the King that was in prison 3 Bishops 3 Earls 3 Barons 2 Abbots 2 Justices for to resign to the King that was then in warde the homage that was make to him some time for they would no longer have him for their Lord One of them Sir William Trussel Knight and PKOCURATOR OF ALL THE PARLIAMENT spake to the king in the name of all the other and said I William Trussel in the name of all men of the lond of Englond and of all the Parleament Procurator I resign to thee Edward the homage that was made to thee sometime And from this time forthward now following I defie thee and pryve thee of all ryal power and I shall never be tendant to thee as for King after this time Also this was openly cryed at London The true form of his deprivation is thus recorded in the Chronicle of Leycester and transcribed out of it by Henry de Kryghton in French Jeo William Trussel Procurator dez Prelatez Conrez et Barons et altrez Gentz en ma procuracye nomes Eyantal ceo ployne suffysant poure eâ— Homages et Fealtez au vous Edward Roy Dengleterre come al Roy avant ces â—enres de par lez ditz persones en ma procuracye nomes renk et rebaylle sus a vous Ed. et deliver et face quiâ—ez lez persones avant ditz en la meâ—lâ—our manere que ley et custome donnent E face protestacion en nom de eaux qils ne voillent deformes estre en vostre sâ—alâ—e ne en vostre lyance ne cleyment de vous come â—e Roy â—iens teniâ— Encz vous teignent de â—horse priveye persone sans nule manere de â—eale dignite Cum haec Rex audisset multum de fuis malefactis doluit rugitus et lamenta emittens eo quod per falsos et proditiosos consiliarios sic omni suo tempore ductus fuerat Thomas of Walsingham thus relates the proceeding Convenit etiam illuc tota regni Nobilitas citata per prius ad Parliamentum tenendum ibidem trastino dicti â—esti ubi cuncti centuerunt regem indignum diademate et propteâ— plures articulos deponendum er Edwardum filium ejus primogenitum in regem unanimiter eligendum Quod etiam consequenter factum fuit et electio in aulâ— magna Westmonasterii publice divulgare per quendam ex Magnatibus sapientem Cui electioni consensit populus universus Archiepiscopus vero Cantuariâ—e praesenti consensit electioni ut omnes Praelati Archiepiscopus quidem assumpto themate vox populi vox Dei sermonem feci populo exhortans omnes ut apud regem regum intercederent pro electo Facto sermone discessum esâ— Ut autem notuit Reginae filliâ—ni electio et viri dejectio plena dolore ut foris apparuit sere mente alienata fuit Edwardus quoque filius suus mateâ—no doâ—ori compassus juravit quod invito patre nunquem susciperet coronam regni Idcirco communi decreto ex parte totius regni tres Episcopi duo Comiteâ— et duo Abbates et de quolibet Comitatu regnitre milites ac etiam de Londoniis et aliis civitatibus et magnis villis ut praecipue de portubus de qualibet certus raimerus persoâ—arum missi sunt ad regem apud Kenelworth qui nunciaâ—ent electionem filii sui et requirerent diligenter quod renunciaret dignitati regiae et coronae et permitteret eundem filium suum regnare pro eo alioquin ipsi reddirent sibi homagia et procederent in praetactâ—s Rex autem ut haec audivit â—um stetu et ejâ—latu respondit quod multum doluit de eo quod sic demeruit erga populum sâ—i regni et ab omnibus qui aderant veniam precabatur Sed ex quo aliter elâ—e non potuit gratias egit quod filium suum primogenitum elegissent Nuncii vero ad Parliamentum Londonias rede untes cum regis responâ—o et insigniis plebem laetam fecerunt mox tota regni
and Wyrsâ—hipp that longed thereto and assoiled all your Leiges of her ligeance and obeisance that longed to yowe uppe the fourme that is contened in the same Renunciation and Cession whiche ye redde your self by your mouth and affermed it by zour othe and by your owne writing upon whiche ye made and ordeyned your Procuratours the Ersbysshopp of York and the Bisshopp of Hereford for to notifie and declare in your name thes Renunciation and Cession at Westmynstre to all the States and all the people that was ther gadyrd because of the Sommons foresayd the whiche thus don yesterday by thes Lordes your Procuratours and wele herde and understonden thes Renunciation and Cession ware pleinelith and frelith accepted and fullich agreed by all the States and people forsayd And over this Sire at the instance of all thes States and people ther ware certein Articles of defauts in your governance redde there and tho we le herd and plesnelich understonden to all the States forsayd hem thoght hem so trewe and so notorie and knowen that by the causes and as by mo other as thei sayd and havyng consideration to your owne wordes in your own Renunciation and Cession that ye were not worthy ne sufficient ne able for to govern for your owne demerites as it is more pleinerlich contened therin hem thoght that wos reasonable and cause for to depose yowe and her Commissaries that thei made and ordeined as it is of record ther declared and decreed and adjudged yowe for to be deposed and priveâ— and in dede deposed yowe and pryved yowe of the astate of Kyng and of the Lordsship contened in the Renunciation and Cession forsayd and of all the Dignite and Wyrsship and of all the administration that longed thereto And we Procuratours to all these States and people forsayd os we be charged by hem and by her auctorite giffen us and in her name yelde yowe uppe for all the States and people forsayd Homage Liege and Feaute and all Ligeance and all other Bondes Charges and Services that longe therto and that non of all tbes States and people fro this tyme forward ne here yowe feyth ne do yowe obeisance â—s to thar Kyng And he answered and sayd that he looked not therafter but he sayde that after all this he hoped that is Cosyn wolde bee good Lord to hym Joesdy le â—xiiij Doctober Lerecuesque de Canterbire chargea deper le Roy touz les Seigneurs Espirituales temporales toutz antres y estantz sur Leur Ligeance que ceo que lors serroit monstres on parlez illoeqe serroit tenuv consâ—il qil ne serroit ascunement discoverez a nully vivant Et pius apres demandez feust per le Count de Northumbr pur la seurte du Roy de touz Lestatz du Roialme Coment leure semble que serroit erdeignez de Richard nadgaires Roy pur Luy mettre saufegard Sauvant su vie quele le Roy voet que luy soit sauvez touz maners Surquoi responduz feust per toutz Les Signiars severalment examines dont les nomes si ensuent que leur semble qil serroit mys en sauso secregard en tiel Lien on nul concours dos gâ—ntz yad qil soit gardez perseures sufficientz persone que nul que este familier du dit nadgairs Roy soit ascunement entour sa persone que ceo soit fait en le pluis seâ—re manere que faire sa purra Les nomes des Seigneurs demandez assentez en La question suisditz cy ensuent Cestassavoir Lerceuesque de Canterbrie Lerceuesque Deuerwyck Leuesque de Londres Leuesque Dely. Leuesque de Nicholl Leuesque de Norwich Leuesque de Roucestre Leuesque de Sar. Leuesque Dexcestr Leuesque de Cicestr Leuesque de St. Asaph Leuesque de Cestr Leuesque de St. Davids Leuesque de Landafe Leuesque de Duresme Labbe de Westminster Labbe de St. Albon Labbe de St. Austyn Labbe de Bury Labbe de St. Doverwycke Labbe de Glocestr Labbe de Battaill Le Prince Le Duc de Nerwyck Le Count Darundell Le Count de Warr. Le Count de Staff Le Count de Northumbr Le Count de Suff. Le Count de Wircestr Le Sgr. de Roos Le Sgr. de Grey de Ruthin Le Sgr. de Cherleton Le Sgr. de Bardolf Le Sgr. de Willughby Le Sgr. de Furnival Le Sgr. de Ferrers Le Sgr. de Beaumont Le Sgr. de Berkeley Le Sgr. de Fitz Wauters Le Sgr. de Manley Le Sgr. de Scales Le Sgr. de Morley Le Sgr. de Burnell Le Sgr. de Lovell Le Sgr. de Camoi Le Sgr. de Seymore Le Sgr. de Crombwell Le Sgr. de Cobham Monsr Henr. Peircy Monsr Richard Scroop Le Sgr. Fitz Hugh Le Sgr. de Bergeueny Le Sgr. de Lomley Le Baron de Greystocks Le Baron de Hilton Monsr Thomas Erpingham Chambr Monsr Mayhew Gowinay Mr. Hall in his Chronicle fol. 10. and others relate that in this Parliament when it was demanded by the Kings friends what should be done with King Richard Thomas Menkes Bishop of Carlile which was a man both well learned and well stomacked rose up and said My Lords I require you take heed what answer you make to this question For think there is none of you worthy or meet to give judgement on so noble a Prince as King Richard is whom we haven taken for our Sovereigne and Liege Lord by the space of two and twenty years and I assure you there is not so ranck a traitour nor so arrant a theef nor so cruel a murderer which is apprehended and deteined in prison for his offence but hee shall be brought before the Justice to hear his judgement and yet you will proceed to the judgement of an annointed King and hear neither his answer nor excuse And I say that the Duke of Lancaster whom you call King hath more offended and more trespassed to King Richard and this Realme than the King hath either done to him or to us For it is manifestly known that the Duke was banished the Realme by King Richard and his council and by the judgement of his own Father for the space of ten years for what cause all you know and yet without license of King Richard hee is returned again into the Realme yea and that is worse hath taken upon him the name title and preheminence of a King And therefore I say and affirm that you do apparently wrong and manifest injury to proceed in any thing against King Richard without calling him openly to his answer and defence When the Bishop had ended he was incontinent by the Earl Marshal attached and committed to ward in the Abbey of S. Albanes And then it was concluded that King Richard should continue in a large prison and should be plentifully served of all things necessary both for viands apparel From the proceedings against
Picardy ready to be transported into England But when it was certainly certified that King Richard was dead and that their enterprise of his deliverance was frustrate and void the Army scattered and departed asunder But when the certainty of King Richards death was declared to the Aquitaynes and Gascons the most part of the wisest men of the Country fell into a bodily fear and into a deadly dread for some lamenting the instability of the English people judged them to be spotted with perpetual infamy and brought to dishonour and loss of their antient fame and glory for committing so hainous a crime and detestable an offence against their King and Soveraign Lord. The memory whereof they thought would never be buried or extincted Others feared the loste of their goods and liberties because they imagined that by this civil dissension and intestine division the Realm of England should so be vexed and troubled that their Country if the Frenchmen should invade it should be destitute and left void of all aid and succour of the English Nation But the Citizens of Burdeaux took this matter very sore at stomach because King Richard was born and brought up in their City lamenting and crying out that since â—he beginning of the world there was never a more detestable or more villanous or hainous act committed which being sad with sorrow and inflamed with melancholy said that untrue unnatural and unmercifull people had betrayed and slain contrary to all Law and Justice and honesty a good man a just Prince and lawfull Governour beseeching God devoutly on their knees to be the revenger and punisher of that detestable offence and notorious crime 15ly The proceedings against King Richard the 2. in the Parliament of 1 H. 4. were in the Parliament of 1 E. 4. n. 9 10 11 12. condemned as illegal the Tyrannous usurpation of Henry the 4th with his hainous murdering of King Richard the 2. at large set forth his reign declared by Act of Parliament to be an intrusion and meer usurpation for which he and the heirs of his body are utterly dis inabled as unworthy to enjoy any inheritance estate or profits within the Realm of England or Dominions of the same for ever and that by this memorable Petition of the Commons wherein the pedigree of King Edward the 4th and his title to the Crown are likewise fully set forth a Record most worthy the publike view being never yet printed to my knowledge Ex Rotulo Parliamenti tenti apud Westm anno primo Edwardi Quarti n. 8. Memorandum quod quaedam Petitio exhibita fuit praefato Domino Regi in praesenti Parliamento per praefatos Communes sub eo qui sequitur tenore verborum For as much as it is notary openly and evidently known that the right noble and worthy Prince Henry King of England the third had issue Edward his furst gotten Son born at Westminster in the 15 kalende of Juyll in the vigille of Seint Marce and Marcellian the year of our Lord M. C.C.XLV the which Edw. after the death of the said King Henry his Fader entituled and called King Edward the furst had issue his furst gotten Son entituled and called after the decease of the same Edward the furst his Fader King Edward the second which had issue the right noble and honourable Prince King Edward the third true and undoubted King of Englond and of France and Lord of Irelond which Edward the third had issue Edward his furst gotten Son Prince of Wales William Hatfield secund gotten Son Leonel third gotten Son Duke of Clarence John of Gaunt fourth gotten son Duke of Lancaster Edmund Langley the fifth gotten son Duke of York Thomas Wodestoks the sixth gotten son Duke of Gloucester and William Wyndesore the seventh gotten Son And the said Edward Prince of Wales which died in the life of the said King Edward the thurd his Fader had issue Richard which after the death of the same King Edward the third as Cousin and heir to him that is to say Son to the said Edward Prince of Wales Son unto the said King Edward the third succeeded him in royal estate and dignity lawfully entituled and called King Richard the secund and died without issue William Hatfield the secund gotten Son of the said King Edward the third died without issue the said Leonel Duke of Clarence the third gotten Son of the same King Edward had issue Phelip his only daughter and died And the same Phelip wedded unto Edmund Mortimer Earl of Marche had issue by the same Edmund Roger Mortymer Earl of Marche her Son and heir which Edmund and Phelip died the same Roger Earl of March had issue Edmund Mortymer Earl of March Roger Mortymer Anne and Alianore and died And also the same Edmund and Roger sons of the foresaid Roger and the said Alianore died without Issue And the same Anne wedded unto Richard Earl of Cambridge the Son of the said Edmund Langley the fifth gotten son of the said king Edward the third as it is afore specified had issue that right noble and famous Prince of full worthy memory Richard Plantagenet Duke of York And the said Richard Earl of Cambridge and Anne his Wife died And the same Rich. Du. of York had issue the right high and mighty Prince Edward our Liege and Soveraign Lord and died to whom as Cousin and heir to the said King Richard the Crown of the Realm of England and the royal power estate dignity preheminence and governance of the same Realm and the Lordship of Ireland lawfully and of right appertaineth of the which Crown Royal power estate dignity preheminence governance and Lordship the said King Richard the second was lawfully rightfully and justly seised and possessed and the same joyed in rest and quiet without interruption or molestation unto the time that Henry late Earl of Derby son of the said Iohn of Gaunt the fourth gotten son of the said King Edward the third and younger Brother of the said Leonel temerously agenst rightwisnes and Iustice by force and Arms agenst his faith and liegeaunce rered werre at Flynte in Wales agenst the said King Richard him took and enprisoned in the Tower of London of grete violence And the same King Richard so being in prison and living usurped and intruded upon the royal power estate dignity preheminence possessions and Lordships aforesaid taking upon him usurpously the Crown and name of K. and L. of the same Realm and Lordship And not therewith satisfied or content but more grievous thing attempting wickedly of unnatural unmanly and cruel tyranny the same King Richard King anointed crowned and consecrate and his Liege and most high Lord in the Earth agenst Gods Law Mans liegeance and Oth of fidelite with uttermost punicion attormenting murdred and destroyed with most vile hainous and lamentable death whereof the heavy exclamation in the doom of every Christian man soundeth into Gods hearing in Heaven not forgotten in the Earth specially in this
Gulielmus Nubrigensis relates Qâ—cunque Rege tyrannice occiderat eo ipso personam et potestatem Regiam induens suo quoque occisori tandem post modicum fortunam inveteratae consuetudinis lege relicturus Quippe ut dicitur à centum retrò annis et eo amplius cum Regum ibidem numerosa successio fuerit Nullus eorum senio aut morbo vitam finivit fed omnes ferro interiere suis interfectoribus tanquam legitimis successoribus regni fastigium relinquentes ut scilicet omnes qui tanto tempore ibidem imperasse noscuntur illud quod Scriptum est respicere videatur OCCIDISTI INSUPER ET POS SEDISTI Wherefore to prevent the dangerous Consequences of these false Glosses on the Statutes of 25 E. 3. c. 2. 11 H. 7. c. 1. I shall lay down these infallible grounds 1. That all publike Laws are and ought to be founded in Justice righteousnes and common honesty for the preserving securing the lives persons estates of all men especially of lawful Kings and Supreme Magistrates from all violence invasion force disseisins usurpations conspiracies assassinations being against all rules of Law and Justice Exod. 20.12 to 18. c. 21 22. 23. Mat. 5.17 to 48. c. 7. 12. Deut. 4.18 Psal 19.8.9 Ps 119.7.106 137 138·160 167. Rom. 7.12 Deut. 6.25 Ps 33.5 Ps 45.7 Ps 72.2 Ps 74.15 Prov. 8.18 Prov. 24.21 Rom. 13.1 to 7. Lu. 20.25 Tit. 3.1 2 3. 1 Tim 1.9 10. Job 20.19 c. 24.2 Mich. 2.1 2 3 4. Jer. 6.7 c. 20.8 c. 22.3.17 Ezech. 45. c. Hab. 1 2. to 10. Lu. 3.14 Whence Cicero thus defines Law Lex est ratio summa insita in natura quae jubet ea justa quae facienda sunt prohibe que contraria Therefore these 2. Statutes were purposely made for those great ends and ought to be interpreted onely for the best advantage of Lawfull Kings and their adherents not for the indemnity impunity encouragement of Traytors Rebels Intruders Usurpers 2ly What Tully writes of the Roman Senators we ought to doe the same of our English Parliaments and Legislators Ea virtute et sapientia majores nostri fuerunt ut legibus scribendis nihil sibi aliud quam salutem atque utilitatem reipublicae proponerent Whence he there inferrs A Legibus nihil convenit arbitrari nisi quod reipublicae conducat proficisci quoniam ejus causa sunt comparatae Therefore these Laws are to be interpreted for the best security safety preservation of the lawfull heads of the Commonwealth and their rightfull heirs and loyal dutifull subjects not for their destruction and the indemnity security of Usurpers Traytors Rebels aspiring after their Crowns Thrones Assassinations to the publike ruine 3ly All the branches of the Statute of 25 E. 3. c. 2. made at the special request of the Lords and Commons and that by a lawful King at that season declare this Statute to be meant only of a lawful King whiles living whether in or out of actual possession of the Realm not of a bare Usurper in possession without right as Sir Edward Cooke expounds it else it will necessarily follow That it shall be no Treason at all to compasse or imagine the death of the King de jure if once dispossessed for a time by Violence and Treason or of his Queen or eldest son and heir or to violate his Queen or eldest daughter not married or to levy war against the lawfull King in his Realm or to be adherent to his Enemies within the Realm or elsewhere or to counterfeit his Great or Privy Seal or mony c. But high Treason in all these particulars in relation only to the Vsurper in possession without and against all right and Title which would put all our rightful Kings and Supreme Governors into a farr worser sadder condition than their Trayterous Vsurpers and into a worse plight than every Disseisee or lawfull heir intruded upon by abatement or dispossessed by torcions unjust or forcible entries for which our Common and Statute Laws have provided many speedy and effectual means of recovering their possessions and Damages too against Disseisorâ— Abators Intruders on their Inheritances Freeholds for exemplary punishment fining imprisonment of the Disseisors Abaters but no means of recovery at all for our dishinherited disposseâ—ed Kings or their heirs against Intruders Vsurpers of their Crowns nor punishments against them their Confederates or Adherents if our Laws concerning Treasons extend not unto them though Kings de jure but only to Usurpers de facto et non de jure and if the Statute of 11 H. 7. exempt them from all kinds of penalties forfeitures by the lawfull King when he regains possession of the Crown as some now expound them 4ly It is resolved both by our Statutes Judges Law-books over and over That there is no Inter-regnum in our hereditary kingdom or any other That so soon as the rightfull hereditary King dies the Crown and Realm immediatly descend unto and are actually vested in the person and possession of the right heir before either he be actually proclaimed or crowned King and that it is high Treason to attempt any thing against his Person or royal authority before his Coronation because he is both King de jure de facto too as was adjudged in Watsons and Clerks case Hill 1. Jacobi Hence upon the death of King Henry the 3. though Prince Edward his heir was absent out of the Realm in the holy wars where he received a dangerous wound by an assassinate and was not certainly known to be alive yet all the Nobility Clergy and people going to the high Altar at Westminster swore fealty and allegeance to him as their King appointed a New Seal and Officers under him qui thesauram Regis pacem regni fideliter custodirent Sicque pax Novi Regis Edwardi in cunctis finibus regni proclamatur Edwardo fidelitatem Jurantes qui si viveret penitus ignorarunt Besides it is both enacted resolved in our Statutes Lawbooks That Nullum tempus occurrit Regi and that when the King is once in legal possession of his Crown Lands or any Lands holden of him by reason of his Praerogative he who enters or intrudes uppon them shall gain no freehold thereby yea if the Kings Tenant dieth and his heir enter into the lands his ancestors held of the King before that he hath done his homage and received seisin of the King though he hath a right of inheritance to the Lands by Law yet he shall gain no freehold and if he die yet his wife shall not be indowed because he gained no freehold by his entry but only a naked possessioÌ„ much les then shal a meer Intruder gain any Freeheld or interest in the Crown or Crown lands it self to the prejudice of the rightfull King or his heirs This is most evident by the sacred presidents of K. David still King when unjustly dispossessed driven out of his
kingdom by his unnatural Son Absolon who made himself King de facto who was yet a traytor with all his Adherents and came to a tragical end 2. Sam. c. 15. to c. 20. by the case of Adonijah the Vsurper and his Adherents slain and degraded as Traytors and of the Usurper Athaliah who had near 7. years possession of the Throne and slew all the bloud royal but Ioash yet was shee dispossessed slain as a murderer traytor usurper and Ioash the right heir set upon the Throne and crowned King by Jehoiada the high Priest the Captains and Rulers of the host and Officers people of the Land who all rejoyced and the City was quiet after that they had slain Athaliah with the sword 2 Kings 11. 2 Chro. c. 23. And as this was Gods Law amongst the Jews So it was the antient Law of England under the antient Britons as is evident by the case of the Usurper Vortigern who afâ—er his Usurpation of the Crown by the murther of two rightfull Kings Constantine and Constance and near 20 years possession by usurpation the Britons calling in and crowning Aurelius Ambrosius the right heir for their lawfull King he was prosecuted by him as a Traytor both to his Father and Brother whom he caused to be murdered to gain the Crown besieged assaulied and burnt to death in the Castle of Genorium in Wales with all his adherents that were in it This Law continued not onely under our Saxon Kings but English too as is evident by the case of Qu. Maud reputed a lawfull Queen notwithstanding the usurpation Coronation and actual possession of King Stephen in her absence all whose grants of the Crown lands were resumed by her Son King Henry the 2. and King Stephens Charters and Grants of them resolved null and void against King Henry because made by a Usurper and Invader of the Crown King John in the year 1216. was renounced by most of his Nobles Barons people who elected crowned and swore allegeance to Lewes as their King and dispossessed King John of all or most of the Realm who thereupon at his death cum summa mentis amaritudine maledicens non valedicens omnibus Baronibus suis pauper omni thesauro destitutus nec etiam tantillum terrae in pace â—inens ut vere JOHANNIS EXTORRIS diceretur ex hac vita miserrime transmigravit Henricum primogenitum suum REGNI CONSTITUENS HAEREDEM Yet no sooner was he dead though Lewes was K. de facto and that by the Barons own election who called him in and crowned him but Gualo the Popes Legat and many of the Nobles and People asâ—embling at Glocester there crowned Henry his Son for their true and lawfull King at Glocester cogente necessitate quoniam Westmonasterium ubi locus est ex consuetudine regiae consecrationis deputatus tunc ab inimicis suis suit obsessum After his Coronation he received the homages and fealties of all the Bishops Earls Barons and others present at his Coronation Sicque Nobiles Universi Castellani eo multo fidelius quam regi Johanni adhaeserunt quia propria patris iniquitas UT CUNCTIS VIDEBATUR filio non debuit imputari After which most of the Nobles and English deserting Lewes submitted themselves to Henry as their lawfull Soveraign routed the French forces besieged Lewes in London forced him to swear that he would depart the Realm and never to return more into it during his life and presently restore all the Lands and Castles he had taken in England by warr and resign them to King Henry Which he accordingly performed Most of the Barons who adhered to Lewes and submitted themselves to King Henry were by agreement restored to all their rights inheritances and Liberties But some Bishops Abbots Priors Secular Canons and many Clergy-men qui Ludovico Baronibus consilium praestuerant et favorem and continued obstinare were excepted out of the composition between King Henry and Lewes and thereupon deprived of their livings goods and forced to make fines and compositions for adhering to the Usurper Lewes though King de facto for a season Therefore a King de facto gets neither a legal freehold against the King de Jure or his heirs nor can he indemnify his adherents against his Justice who are still Traytors by adhering to him though crowned and the King de jure may punish them as such 5ly Since the Statute of 25 E. 3. which altered not the Law in this point before it in the Parliaments of 1 E. 4. roâ— Parl. n. 8. to 37.4 E. 3. n. 28. to 41.14 E. 4. n. 34 35 36. King Henry the 6. himself though king de facto for 39. years and that by Act of Parliament and a double descent from Henry the 4th and 5th Usurpers and Intruders together with his Queen and sundry Dukes Earls Barons Nobles Knights Gentlemen who adhered to him in his wars against Richard Duke of Yorke and Edward the 4th King de jure were all attainted of high Treason all their lands goods chattels forfeited some of them executed as Traytors for adhering to Henry the 6. and assisting him in his wars against Edward the 4th king only de jure it being adjudged High Treason within the Statute of 25 E. 3. against Sir Edward Cooks fond opinion to the contrary As for the Year-book of 9 E. 4. f. 1. b. that the King de jure when restored to the Crown may punish Treason against the king de facto who usurped on him either by levying warr against him or compassing his death it was so farr from being reputed Law in any age being without and against all Presidents or in King Edward the fourths reign that those who levied war against Henry the 6. were advanced rewarded as loyal Subjects not punished as Traytors for it by King Edward the 4th when actually King It being not only a disparagement contradiction to the Justice Wisdom Title Policy and dangerous to the person safety of any King de jure to punish any of his Lieges Subjects for attempting the destroying deposing of an Vsuper of his Crown and Archtraytor to his person but an owning of that Usurper as a lawfull King against whom high Treason might be legally committed and a great discouragement to all loyal Subjects for the future to aid him against any Intruders that should attempt or invade his Throne for fear of being punished as Traytors for this their very loyalty and zeal unto his safety Moreover all the gifts grants made by Henry the 4 5 6. themselves or in and by any pretenced Parliaments under them were nulled declared void and resumed they being but meer Usurpers and kings de facto not de jure 6ly It is the judgement resolution of learned Polititians Historians Civilians Canonists Divines as well Protestants as Papists Jesuites and of some Levellers in this age that it is no Offence Murther Treason at all by the Laws of God
or men but a just lawfull commendable heroick righteous and meritorious action to kill destroy dethrone or wage warr against a professed Tyrant especially such a one who invades his lawfull Soveraigns Throne Crown by perjury treason force regicide expulsion deposition or assassination of his rightfull undoubted Soveraign against his duty and allegiance without any colour of just Title to the Crown And this they hold unquestionable when done either by command or commission from the King de jureâ— or his rightfull heir or successor though out of actual possession or out of meer loyalty and duty to restore them to the just possession of their Thrones or to free their Native Country from the miseries oppressions wars murders bloudsheds and apparent destruction occasioned by his Usurpation of the Crown which is warranted by the presidents of Athaliah 2 Kings 11. 2 Chron. 23. and of Zimri 1 Kings 16.8 to 23. recorded in Scripture with hundreds of examples in other Histories of all antient and modern Empires kingdomâ— Besides when the usurping King de facto is removed dead destroyed and the king de jure or his right heir restored by way of remitter to the actual possession of the Crown in disaffirmance of the usurpers right and possession they are in the selfsame plight and condition in Law as if they had never been usurped upon or dispossessed of the Throne Therefore the King de jure can neither in Law nor Justice when remitted punish any such attempt against the king de facto as Treason it being no Treason in it self and the Usurper no lawfull king at all but the very worst and greatest of Traytors whiles a Usurper So that 9 E. 4. f. 1. b. can be no Law at all but a most gross absurdity 7ly It is a Principle in Law that no Disseisor Trespassor or Wrong-doer shall apportion or take advantage of his own wrong in the case of a common person much less then shall the Usurper of the actual possession of his lawfull Soveraigns Crown being the highest Offender Traytor Wrong-doer take advantage to secure himself or his adherents by his wrongfull trayterous possession against the Statute of 25. E. 3. or the ax of Justice The rather because this Statute was made and the Treasons therein specified declared and enacted to be Treason by King Edward the 3. and most of of those Lords who in the Parliament of 4 E. 3. but 21. years before at this Kings request and by his assent declared adjudged condemned executed Roger Mortimer and his Complices as Traytors guilty of HIGH TREASON for murdering King Edward the 2. his father after he was deposed in Parliament because he was still king de jure though not de facto Therefore they most undoubtedly resolved the king de jure though not regnant to be a King within that Act not the king de facto without right or title as Sir Edward Cooke erroniously asserts 8ly If the imagining or compassing the death or deposing or imprisoning of the King declared by overt act or rearing war against him or adhering to his enemies by any ambitious Usurper be High Treason within this Act for which he and his adherents shall lose their lives lands estates and suffer as Traytors though he never actually kill depose imprison or dispossess the King of his actual Regal power as the Council of Calchuth An. 787. cap. 3. The Council of Aenham An. 1009. cap. 26. with all our antient Laws Lawbooks Lawyers cited by Sir Edw Cook in his 3. Instit c. 1 2. the Statutes of 25 E. 3. all our other Acts concerning Treason and the forecited Judgements Presidents in Parliament with others in Queen Elizabeths reign abundantly evidence Then it is much more High Treason in the highest degree within the letter intention of all these Laws actually to usurp and get possession of the Crown by levying warr against and imprisoning degrading expelling banishing or murdering the lawful King himself and depriving him or his right heir of the possession of the Crown there being a complication of all the highest Treasons involved in an actual usurpation and a greater damage prejudice to the King kingdom than in a successless attempt alone which proves abortive and is quickly ended And if so then such an Arch-Traytors actual usurpation of the Crown must by consequence be so far from indemnifying him or mitigating or expiating his Treasons that it doth aggravate them to the highest pitch and expose him and his adherents to the highest penalties though king de facto and that both by the Law of God himself as is evident by the cases of Athaliah and of Baasha who conspiring against and slaying his Soveraign Nadab son of Jeroboam and then reigning in his stead smote all the House of Jeroboam not leaving to him any that breathed according to the saying of the Lord yet because he provoked God to aâ—ger with the works of his hands in being like the House of Jeroboam and BECAUSE HE KILLED HIM his son Elah who reigned in his stead two years was by Gods retaliating Justice slain by Zimri who reigning in his stead assoon as he sat on the Throne slew all the house of Baasha so that he left him not one that pissed against the wall neither of his kinsfolks nor of his Friends according to the word of the Lord which he spake against Baasha by Jehu the prophet When Zimri had thus reigned by Usurpation bloudshed but 7. days all the people of Israel that were incamped against Gibethon hearing that Zimri had conspired and also slain the King made Omri Captain of the host king over Israel that day in the camp who presently all marched from Gibethon to Tirzah besieged Zimri in it where he was burnt with fire in the Kings house and died for his sins and THE TREASON which he wrought All these Usurpers though kings de facto and Gods special instruments to punish and cut off other evil Kings and their families who usurped the Crown of Israel and kept the 10. revolting Tribes from the house of David to whom God had annexed them at first till rent from it by Jeroboams rebellion for Solomons sin were yet Traytors still in Gods and mens account and thus exemplarily slain and punished as such The like Examples we find in the Gothish and Spanish Histories every such actual Invader of the Crown qui regem nece attractaverit aut potestate Regni exuerit aut praesumptione tyrannica regni fastigium usurpaverit being condemned and for ever accursed excommunicated with the highest Anathema that can be inflicted by the 4. Council of Toledo can 74. and also by the 5. Can. 2 3 4 5 6. The like presidents we find in the Histories of the Roman Emperors of the kings of Denmark Poland France Scotland and other Realmes where Usurpers of the Crown though in actual possession have been oft times slain and executed as the archest Traytors by the
Dantzick or Hamborough in France Spain Denmark or Germany within the Ward of Cheape London a suggestion never made before his time in or by any Law-Book or Record only to rob the Admiralty of its antient unquestionable right and Jurisdiction 3ly That the words of the Statute of 13 R. 2. c. 5. whereon Sir Edward Cook and other Judges ground their Prohibitions to the Admiralty That the Admirals and their deputies shall not meddle from henceforth with any thing done within the Realm of England but only of things done upon the Sea c. are clearly strained and construed by them directly against the words meaning and intent of the Law-makers and Commons Petition whereon it was made For the later clause but ONLY of things done upon the Sea is put in opposition and contradistinction to the precedent words with any thing done within the Realm of England or within the bodies of the Counties as well by land as by water as the Stat. of 15 R. 2. c. 3. 5 Eâ—l c. 5.27 Eliz. c. 11.25 E. 3. c. 2. directly interpret and explain the sense thereof And they strain and apply them to contracts made by Merchants and Mariners not within the Realm of England or bodies of the Counties thereof by land or water but beyond the seas and quite out of the Realm being no part of the Realm or within the body of any County of England or Kings Dominions Than which a greater Solecism and contradiction cannot be imagined against the scope and letter of these Statutes For by this construction they may likewise strain the very Oath of Supremacy That no foreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction power c. Ecclesiastical or Spiritual WITHIN THIS REALM With the Statute of 13 Eliz. ch 2. for the abolishing of the usurped Iurisdiction of the Bishop and See of Rome WITHIN THIS REALM and against raising sâ—dition bringing in Bulls Agnus Dei Crosses Pictures c. WITHIN THIS REALM and other the Dominions thereof to the punishment of all such as shall avetr that any forein Prince Person Prelate State Potentate or the Pope have or ought to have any Jurisdiction power or Authority OUT OF THIS REALM or the Dominions thereof or shall raise any sedition or vent Popes Bulls c. in any forein Kingdom or Country as France Spain Italy Poland Germany out of the Realm as if they had done it within this Realm of England 4ly That by the opinion resolution agreement of the Judges of the Kings Bench 1575. and of all the Judges of England whereof Hutton and Crook were 2. 4 Febr. 1632. Hiâ— 8. Caroli the original whereof I produced subscribed with all their hands If sute he commenced in the Court of Admiralty upon Contracts made and other things personal done beyond the Seas or upon the Sea no Prohibition is to be awarded contrary to Sir Edward Cooks opinion This being the Iudgment of all our Judges in former ages wherein no record or president could be produced of any such Prohibition from Richard the 1. till the later end of Queen Elizabeths or King James his reign The Lords upon my Argument were so fully satisfied in this point of Law that they all unanimously and immediately adjudged and ordered notwithstanding Iustice Bacons and Reeves opinions upon the late presidents to the contrary that the Rule for the Prohibition in the Kings Bench should be vacated and that the Delegates should proceed to Sentence in the cause which they did And so my Client got both Judgement and Execution soon after against these Sureties I might here very fitly inform our Levellers and their Confederates That the Lords in Parliament as they did antiently so since the Commons admission unto this Great Council have made not only some Acts for the Government of London without the Commons as in 17 R. 2. n. 25 26 27. Granted Ayds for themselves to the King and likewise for the Merchants by the Merchants consents confirmed Charters Patents in Parliament reversed attainders restored persons attainted and their heirs to Lands and bloud elected the Kings Great Officers Privy Counsellers and prescribed them Laws Rules Orders appointed a Protector during the Kings Minority limited his power and discharged him from his place without the Commons confirmed an imposition upon Cloth by the King against the Commons petition to take it off Ordered a Subsidy to be paid absolutely which the Commons granted but conditionally called receivers of Subsidies and Monies to account without the Commons and opposed the Commons encroachments upon their privileges as you may see in the Parliament Rolls of 13 E. 3. n. 5 6. Parl. 1. Parl. 2. n. 8.15 E. 3. n. 41.21 E. 3. n. 16. Par. 2 R. 2. n. 22. to 27.57 5 R. 2. n. 16. 5 H. 4. n. 51. to 58. 4 H. 6. n. 22. 6 H. 6. n. 22 23. 8 H. 6. n. 13.27 28.14 H. 6. n. 10. 31 H. 6. n. 34. In Claus 50 E. 3. m. 3. 4. De essendo in Parliamento there are writs directed to particular persons in this form Sis coram Nobis et cateris Proceribus et Magnatibus regni nostri Angliae in praesenti Parliamento without mentioning the Commons apud Westm convocato hac instante diâ— Sabbatâ— proxime post futur ad informandum Nosipsos Proceres et Magnates not the Commons super quibusdam de quibus per te volumus informari c. 4. Junii Per Concilium in Parliamento And for the Nobles of Ireland I find this Record Claus 2 E. 3. m. 17. Rex dilecto et fideli suo Johanni Darcy de Nevien Justiciario suo Hyberniae salutem Ex parte quorundam hominum de Hybernia Nobis exstitit supplicatum uâ— per statutum inde faciendum concedere volumus Quod omnes Hybernici qui voluerint legibus utantur Anglicanis ita quod necesse non habeant super hoc Cartas aliquas a Nobis imperrare Nos igitur certiorari volentes si sine aliquo praejudicio praemissis annuere valeamus vobis mandamus quod voluntatem Magnatum terrae illius not of the Commons in proximo Parliamento nostro ibidem tenendo super hoc cum diligentia praesentari facias de eo quod inde inveneritis una cum vestro consilio advisamento Nos distincte aperte cum celeritate qua potestis certificetis hoc Breve nostruÌ„ Nobis remittentes c. upon which Petition the use of the English Laws was afterwards granted as appears by Clause 5 E. 3. part 1. m. 25. But I shall close up this Plea and Supplement with a few Presidents more pertinent to demonstrate the Lords undoubted Right of Judicature Council and Advice in publike affairs both in and out of Parliament In the Parliaments of 5 E. 2. n. 31.4 E. 3. c. 14.36 E. 3. c. 10.50 E. 3. n. 181.1 R. 2. n. 35.2 R. 2. n. 5. It was enacted that a Parliament
E. 3. n. 1.10 R. 2.17 R. 2. n. 6.7 8 H. 4. n. 66 67. some of the valiantest wisest discreetest Spiritual and Temporal LORDS were by Petition of the Commons and special Order of the Lords in Parl. placed about these Kings to BE THEIR PRIVY COVNSELLORS to advise counsel them and manage all the Great affairs of the Realm under them so in this Parliament they exhibited this Petition to the like eâ—â—ect Primerement que plese a nostre dit Seigniour le Roy ordeigner et assigner en cest present Parlement les pluis vaillantz sages et discretes Seigniours espirituelx et temporelx de son roialme pur estre de son counseil en eid et supportation del bone et substancial gouvernance et la bien de Roy et de Roialme et que les ditz Seigniours de counseill et les Justices de Roi soient overtement jurez eny cest present parlement de eux bien et loialment en lour counseill et faitz acquiter pur le bien de Roy et de Royalm en toutz pointz saunz favour pur affection ou affinite faire a ascune manere de persone Et que plese nostre dit Seigniour le Roy en presence de toutz les Estates de parlement comander les ditz Seigniours et Justices sur lour foy et ligeance que lui devont qils feront pleyne justice et droit ouelment a chescuny sanz tarians si bonement come ils purront sanz ascun commandement on charge de queconque persone a contrarie Le Roy le voet was the answer which was answered See the like Petitions afterwards in 1 H. 6. n. 26.2 H. 6. n. 15 16.8 H. 6. n. 27 28.11 H. 6. n. 41. I shall conclude with these 2. memorable late presidents In the Parliament of 8 Eliz. upon the death of Thomas Williams Esquire Speaker of the Commons house Richard Onstoe Esquire the Quâ—ens Sollicitor first chosen a Member of the Commons house and after called by Writ to attend the Lordâ— House as an Assistant at the request of the Commons to the Queen and Lords was sent down again to the Commons house without any new election and there chosen and presented by them for their Speaker and allowed of by the Queen and Lords So in the Parliâ—ment of 23 Eliz. upon the Queens making John Bell Esq then Speaker chief Baron of the Exchequer Iohn Popham Esq then Queens Sollicitor called from the Commons house to the Lords as an Assistant by writ at the Commons request to the Queen and Lords was remitted to them again upon his old without any new election and thâ— chosen presented accepted for their Speaker Which 2. late presidents infallibly prove 1. That the King hath an absolute power over any Members of the Commons house upon a just occasion to call them thence by writ to be Assistants to the Lords house or else to create them Peers and call them to be Members of the Lords house as he did Sir Francis Seymore Mr. Arthur Capell and others created Lords the last long Parliament 2ly That the calling of any to the Lords house from the Commons by writ as Assistants only doth not totally disable them to be Members of the Commons house again the self-same or the next Parliament but that upon the Commons Petion and assent of the King and Lords they may be remanded to the Commons house and be Members and Speakers thereof again but not by the Commons votes or order but only by the Kings with the Lords assent who may refuse to remand them if they please A very pregnant argument chat the power of removing judging suspending approving readmitting Members of the Commons house upon Elections or Misdemeanors belongs not of right to the Commons house but to the King and House of Peers as I have formerly evidenced Admitâ—ing then that the Commons have de facto gained exercised this privilege of late years to judge suspend or eject their own Members in such cases without the King and House of Peers yet having most grosly abused it of late to the ruine subversion of Parliaments I must conclude with the Canonists Privilegium meretur amittere qui abutitur potestate Jer. 6.16 Thus saith the Lord Stand ye in the wayes and see and ask for the old pathes where is the good way and walk therein and ye shall find rest for your souls But they said We will not walk therein Prov. 24.21 22. My son fear thou the Lord and the King and meddle not with those who are given to change For their Calamity shall rise suddenly and who knoweth the ruine of them both Jer. 21.3 4. c. 17.25 27. Thus saith the Lord Execute ye judgement and deliver the spoiled out of the hands of the Oppressor and do no wrong do no violence to the stranger the fatherless nor the widdow neither shed innocent bloud in this place For if ye do this thing indeed then shall there enter into the Gates of this House KINGS PRINCES sitting upon the Throne of David riding in chariots and on horses they and their PRINCES the men of Iudah and the inhabitants of Ierusalem and this City shall remain for ever But if you will not hearken unto me c. then will I kindle a fire in the gates thereof and it shall devour the PALACES of Ierusalem and it shall not be quenched FINIS An Omission in pag. 30 l. 7. RAnulph de Glanvil Chief Justice under King Henry the 2. In his Tractatus de Legibus et Consuetudinibus Regni Angliae written in the 33 year of his reign hath this memorable passage relating to the Parliamentary Councils in that age l. 2. c. 7. Est autem magna Assisa REGALE QVODDAM BENEFICIUM CLEMENTIA PRINCIPIS DE CONSILIO PROCERUM POPVLIS INDVLTUM to wit in a Parliamentary Council of the King and Lords without any Commons quo vitae hominum et status integritati tam salubriter consulitur ut in jure quod quis de libero soli tenemento possidet retinendo duellâ— casum declinare possunt homines ambiguum c. Ex aequitate autem maxiâ— prodita est LEGALIS ISTA INSTITUTIO Jus enim quod post multas longas dilationes vix evincitur per duellum per beneficium ISTIUS CONSTITUTIONIS commodius et acceleratius expeditur By which it is evident that the Grand Assize was no original Processe or Trial at the Common Law but a legal institution and beneficial constitution proceeding from the Grace of the Prince and indulged to the People BY THE COUNSEL OF THE LORDS assembled together in a Parliamentary Council which Lib. 2. c. 9. Glanvil stiles Recordum per Assisam DE CONSILIO REGNI inde factum for the speedier and better recovery of their freeholds without endangering their lives by a Duel to recover them which was fuller of delays but less certain and more unjust than a recovery by verdict in this new
it was shewed to the said John Lord of Gomynes by the said Steward how the said LORDS had assembled and considered of his answer and THAT IT SEEMED TO THE LORDS sitting in full Parliament that without duresse or default of victuals or other necessaries for the defence of the Town Castle of Arde and without the Kings Command he had evilly delivered and surrendred them to the Kings Enemies by his own default against all appearance of right or reason contrary to his undertaking safely to keep the same Wherefore THE LORDS aforesaid here in full Parlia-ADJUDGE YOU TO DEATH And because you are a Gentleman and a Baronet and have served the Kings Grandfather in his wars and are no Liege man of our Lord the King you shall be beheaded without having OTHER JUDGEMENT And because that our Lord the King is not yet informed of the manner of this Judgement the execution thereof shall be put in respite until our Lord the King be informed thereof Loe here two express Judgements given in Parliament by the LORDS alone without King or Commons in case of Treason even against Commoners themselves And an express acknowledgement by the Commons of the Lords right to award Iudgement in these cases without the King or them than which a fuller and clearer proof cannot be desired In the Parliament of 2 R. 2. n. 34 35. Sir Robert Howard knight was committed prisoner to the Tower upon the complaint of the Lady Nevil by the Lords in Parliament for a forcible imprisonment of her daughter to which he was accessory that she might not prosecute a divorce in Court Christian In the 50 year of King Edward the 3. in the Parliament called the good Parliament Sir John Anneslee Knight accused Thomas Katrington Esquire of Treason for selling the Castle of St. Saviour in the Isle of Constantine to the French for an inestimable sum of money cum nec defensio sibi nec victualia defuissent whereupon he was taken and imprisoned but in King Edwards sickness enlarged by the Lord Latymers means as was reported In the Parliament held at London Anno 1380. the 3. of R n. 2. he was again accused by Sir John Anneslee and there resolved that being a Treason done beyond Sea not in England it ought to be tried by duel before the Constable or Marshal of the Realm Whereupon a day of battel was appointed in the Court at Westminster the 7. of June and lists set up On which day in the morning they fought the battel in the presence of the KING Nobles and Commons of the Realm which Walsingham at large describes till both of them were tyred and lay tumbling on the ground where the Esquire got upon the Knight as if he had conquered him Others said the Knight would rise again and vanquish the Esquire Interea Rex pacem clamari prâ—cepit et militem erigâ— The Knight refused to be lifted up as the Esquire was desiring he might be laid upon him again for he was well and would gain the victory if he were laid upon him again When he could not obtain his request being lifted up he went chearfully to the King without help when as the Esquire could neither stand nor go but as two held him up and thereupon was set in a chair to rest himself The Knight when he came before the King rogavis Eum et Proceres ut sibi illam concederunt gratiam ut itâ—rum in loco quo prius posset reponi et armiger super eum Rex vero et Proceres cum vidissent miliâ—em tam animose â—am vivide bellum repetere et insuper magnam summam auri offerre publice ut id posset effici decreverunt eum iterum reponendum armigerum super eum modo universaliter servato quo â—acuerant ante prostrati But the Esquire in the mean time in a swoun fell out of the chair as dead between the hands of those who stood by him Whereupon many running to him chafed him with wine and water but could not recover him till they pulled off his arms Quod factum et Militem victorem probavit Arm gerum esse victum After some space the Esquire reviving opened his eyes and began to lift up his head and to look terribly on every one that stood round about him which the knight being informed of went presently to him in his arms which he never put off and speaking to him et Proditorem et falsum appellans quaerit si iterum audeat Duellum repetere Ille verò nec sensum nec spiritum habente respondendi â—lamatum est pugnam finitam et ut quisque ad propria remearet The Squire was carried to his bed senceless and died the next morning Here we have a Duel ordered by Parliament and the King and Lords Iudges in it not the Commons for a Treason done beyond the Seas not triable here by Law In the Parliament of 4 R. 2. n. 17. to 26. Sir Ralph Ferrers being arested for suspition of Treason on the borders of Scotland was brought into the Parliament before the Lords to answer the same where divers Letters under his hand and Seal as was pretended were produced and read against him sent to the Lord Admiral of France and other French Officers informing them that he in the behalf of the French had made a League and alliance with the Scots and desiring them to make payment of the monies promised him and of his own fee and inviting the French to invade England c. with discoveries of the Kings designs against the French and answers to them Sir Ralph desired Counsel in this case which was denied him These Letters were found by a beggar besides London divers of his familiars were called into the Parliament house before the Lords and likewise the beggar and the whole matter strictly examined The Letters sent by Sir Ralph to the parties beyond Seas and certain Letters sent by them in answer to his were all sealed together and all of one hand and the Seal larger than the Seal of the said Sir Ralph whereupon they seemed to be forged by some of his Enemies for his overthrow himself being once or twice urged to answer Whether the Letters were his or no answered that he did not remember they were his own Letters and that he was ready to approve as the Lords should think fit having formerly offered combate with any that would justifie it from which he was put In conclusion the Lords thought him to be innocent whereupon he was delivered to 4. Earls and 2. Lords who became pledges body for body to answer when he should be called between that and the next Parliament and so he was inlarged The Letters and his Seal were delivered to Sir John Cavendish Chief Justice of England and the beggar being thought privy to this falshood was committed to prison by THE LORDS In the Parliament of 5 R. 2. n. 44 45. Richard Clindow Esquire exhibited a Bill to
the King wherein he accused Sir William Cogan knight for extorting 300 l. by menaces from the Prior of St. Iohns Sir William appearing upon Summons prayed Counsel which was denied for that it concerned Treason whereupon he pleaded Not Guilty After which the same Parliament n. 46. to 61. The Mayor Baylifs and Commonalty of Cambridge were accused before the King and Lords that in the late insurrection they confederating with other Malefactors did break open the Treasury of the University of Cambridge burn sundry Charters of the University and compel the Chancellor and Scholars under their common Seal to release to the said Mayor and Burgesses all manner of Liberties real and personal actions and also to become bound to them in great sums of money Whereupon special writs were directed to the Mayor Baylifs and Commonalty to appear in Parliament to answer the premises The Mayor and Baylifs appear in person and plead that they 〈◊〉 not privy to any such act but if any thing was done it was by compulsion by others which the Kings learned Counsel disproved whereupon they pleaded Not Guilty The Commonalty appeared by Attorney and delivered in the Release and Bond of the University complained of under their Seal which were ordered to be cancelled After which the Chancellor and Scholars of the University exhibited Articles against the Mayor and Baylifs shewing their whole carriage and discourse in this tumult Upon reading whereof it was demanded of them in the Kings behalf What they could say why their Liberties lately confirmed should not be seised into the Kings hands as forfeited They thereupon required a Copy of the Articles Councel and respite to answer To the Copy of the Bill it was answered by the Lords that seeing they had heard it read it should suffice for by Law they ought to have no Copy For Councel it was said That to such articles if any were wherein Councel was to be had they should have it otherwise not Wherfore they were then appointed to answer to no crime or offence but only to their Liberties To which they answered by their Council That this Court ought not to have any Conusance or Jurisdiction of them for certain causes then alleged But at last they were ordered to say what they could otherwise they would give Iudgement against them as those who had nothing to say Whereupon they pleaded they did nothing but by Duress and constraint of the Rebels At last after many dilatory shifts touching their Liberties they wholly submitted themselves to the Kings mercy and grace saving their answer to other matters The KING therefore by the assent of the Prelates and Lords in Parliament â—o is the Rolâ— seised their Liberties into his hands as forfeited and by assent of the Lords and Prelates in Parliament granted to the Chancellor and Scholars the Assise and correction of bread weights measures and forestallers and fines thereof within the Town and Subâ—rbs of Cambridge which the Townsmen had before The King Lords and Prelates being Judges and giving the Judgement in this case of Commoners as the record a â—ge attests Walsingham relates that in a Parliament holden at London this year about the feast of St. John upon the Petition of the knights of Shires John Straw Captain of those in the insurrection at Bury and Myldenhale tractationi et suspentioni ADJUDICATUR to wit by the King and Lords licet multi putassent eum fuisse pecunia redimendum In the 7. year of R. 2. Rege vocante congregati sunt multi de Nobilibus Regni apud Rading to restrain the seditious motions of John de Northampton late Mayor of London qui ingenia facinora nisus est de quibus et convictus est ibidem his familiar Clerk accusing him both of divers practises and designes projected by him as well to the prejudice of the King as of the whole City of London and objecting them against him When Judgement was to be given against him in the Kings presence he pleaded that such a Judgement ought not to be given against him in the absence of the Duke his Lord whereby he raised a sinister suspition as well in the people AS NOBLES against the Duke of Lancaster The Justice who was to pronounce the Judgement told him He ought to refute his charge by Duel or by the Laws of the Realm to submit himself to drawing hanging and quartering At which when he stood mute and said nothing DECRETVM EST ut perpetuo carceri tradiretur et eâ—us bona regis usibus confisâ—arentur ut Londonias non appropinquaret per centum miliaria in vita sua whereupon he was sent prisoner to Tyntagel Castle in Cornwall and his goods seised on by the Kings Officers In the Parliament of 7 R. 2. holden at Westminster the Monday next before the feast of All Saints num 17. Bryers Cressingham and Iohn Spicâ—worth Esquires were accused before the LORDS for surrendring the Castle of Drinkham in Flanders to the kings enemies for money without consent of the kings Lieutenant Spickworth proved that the same was not in his custody and thereupon he was discharged Cressingham pleaded that he yeelded the same upon necessity without money and submitted himself to the Lords order who thought this no good cause and therefore committed him to prison The same Parliament n. 24 25. Sir William de Elinsham Sir Thomas Trivet Sir Henry de Ferriers and Sir William Farnden knights and Robert Fitz-Ralph Esquire were accused before the Lords in Parliament for selling the Castle of Burburgh with all the arms ammunition and provisions therein to the French the kings enemies for sundry summs of gold received by them of the French without authority from the king or his Lieutenant who pleaded they surrendred it for salvation of themselves and their people c. After all their excuses made they were upon consideration adjudged insufficient by the Lords and the Chancellor by their order pronounced this Judgement against them That they should repay all the monies they received from the Enemy to the King be committed to prison ransomed at the Kings will and moreover that Sir Will. de Farnden being the greatest Offender should be at the Kings mercy both for body and goods to do with them as he pleaseth In this Parliament there was a Duel fought between John Walsh an English Esquire and one of Navarr who accoused him of Treason against the King and Realm effectually but yet falsly out of envy Walsh having layen with his wife whiles he was under Captain of Cherburgh as he afterwards confessed This Dueâ— was fought within the lists in the presence of the King and Nobles of the Realm where this Navarrois being vanquished by Walsh REGALI JVDICIO tractus et suspensus est quanquam Regina et plures alii pro eo preces sedulas porrexissent In the 2. of Parliament of 7 R. 2. n. 13.10 19. John Cavendish a Fishmonger of London praying Surety of the peace