is hath upon several occasions been pleas'd graciously to declare That he holds Parliaments to be the best Method for healing the Distempers of the Kingdom and the only means to preserve the Monarchy in credit at home and abroad and he promises to rule the People by the Law. Hales that solid learned Divine in his Golden Remains cites Baldus for it Digna Vox est Majestate Regnantis Legibus alligatum Principem se prositeri And Learned Hooker that great Champion for the Discipline and for the Rites and Ceremonies of the Church in his Eccles Polity delivers his Opinion quite contrary to these Time-Servers Pag. 27. All publick Government says he of what kind soever seemeth evidently to have arisen from deliberate Advice Consultation and Composition between men That Composition signifies the Laws And pag. 28. he says further That the Power of making Laws to command whole Politick Societies of men belongs properly to the same entire Societies What can be said more in confutation of the Book that goes by the Name of Sir Rob. Filmers The Duke of Wittemberg at the Council held at Wormes when other Princes discours'd of many Priviledges and Conveniencies of their Lordships and Territories openly protested it to be his greatest Felicity That he could in aperto Campo in Sinu Subditorum suorum dormire Non eget Mauri jaculis nec arcu c. I shall further add only the Judgment of one or two of our most Famous and Learned Judges concerning this Matter Fortescu that was first Lord Chief Justice and afterwards Lord Chancellor in the Reign of H. 6. in his excellent Book in commendation of the Laws of England affirms this Doctrine Ad tutelam Legis Subditorum ac eorum Corporum Bonorum erectus Rex est Et ad hanc Potestatem a Populo effluxam ipse habet Sir E. C. in his 12. Rep. 64. delivered his Opinion freely in the Case of Prohibitions before the King and the Lords of the Council where there was a warm Debate between the Judges and Dr. Bancroft Archbishop of Canterbury And what Sir E. C. deliver'd for Law was with the clear consent of all the Justices of England and Barons of the Exchequer And there Sir E. C. says it was greatly marvell'd at that the Arch-Bishop durst inform the King That the King had an absolute Power and Authority by the Word of God to determine what Causes he pleas'd in his own Person And it is admirable to observe with what a true and honest Courage that grave Chief Justice Sir E. C. answer'd the King himself in that Debate When the King was pleas'd to say It was Treason to affirm that the King was under the Law The Chief Justice answer'd him with the Words of an ancient Judge and Author of our Law that is out of Bracton That the King was Sub Deo Lege And Fleta another of our ancient Authors in our Science useth Words to the same effect This Doctrine differs from some of our late Motto's in the Serjeants Rings Tacitus in his Annals gives this excellent Commendation of two of the best of the Roman Emperors Nerva and Trajan Res olim insociabiles miscuerunt Imperium Libertatem And that Author well observes it as the true Case and Condition of a People and a necessary Consequence Amissa Virtute pariter ac Libertate This Discourse of mine may seem to some to be a Digression but a man can never have a juster occasion for it than now and upon this Argument and Suit I make that my Apology which I learn from King James His Majesties Royal Grandfather in his Discourse of the Powder-Treason Which proves it the more seasonable There is a Time saith King James when no man ought to keep silence It hath says he been ever held as a general Rule in all well-govern'd Common-wealths whether Christian or Ethnicks That when either their Religion or their King or their Countrey was in any extream hazard no good Countrey-man ought then to with-hold either his Tongue or his Hand according to his Calling or Faculty from aiding to repel the Injury repress the Violence and avenge the Guilt upon the Authors To support the Power and Priviledge of the House of Commons as being an essential part of the Parliament it is absolutely necessary to make it out against these Innovators that the House of Commons have ever been a part of the Parliament and that they were long before 49 H. 3. Or otherwise they are but precarious in their power and priviledges and enjoy them but of Grace Every Priviledge is by Prescription says the Lord Dier fol. 60. a. med in Trewinnard's Case which I shall have occasion to mention more at large before I have done And in the same Dier fol. 70. in the Case of Withers and Iseham it is held That a man cannot prescribe to an Incident or Appendent nor indeed to any Power or Authority where the Principal Thing hath not had a perpetual continuance Therefore where the beginning of a thing is known there can be nothing belonging to it by Prescription In one of our late Kings Reigns the House of Commons in an Address of theirs made mention of their Priviledges as their ancient and undoubted Right and Inheritance But Offence was taken at it and they were told it had been better if they had said their Priviledges were deriv'd from the Grace and Permission of the King and his Ancestors Now I shall clearly prove that these Powers and Priviledges were indeed their ancient Right and Inheritance Which they cannot be unless that House or the Commons by their Representative have been ever from the beginning of the Governm ent a part and member of the Parliament I shall prove it out of several authentick Authors of the Law Historians and Antiquaries and by a multitude of Records and by divers Acts of Parliament which are all the sorts of Proof that can be in a Question of this Nature The Mirrour of the Justices of which Book Sir E. C. says That most of it was written before the Conquest as appears by the Book it self Tho. Horn a Learned man added much to it in the Reign of E. 1. in this Mirrour of the Justices c. 1. sect 3. It is said that King Alfred Ordain'd for a perpetual Usage That twice in the Year or oftner if need be the Parliament should assemble And to let you see of whom that Parliament did consist he tells us in the same Chapter by whom the Laws were then made It is says he among other things ordain'd that no King should change his Money nor impair it nor inhanse it nor make any Money but of Silver without the assent of the Lords and All the Commons Sir E. C. in his Preface to the 9th Rep. tells us That Tenants in Ancient Demesn because by their Tenure they were bound to Plow and Husband the Kings Demesnes before the Conquest And in the Conquerors
Time had divers Previledges which they claimed by Prescription and among others Not to contribute to the Wages of the Knights of the Shire Now the Priviledge must be as Ancient as their Tenure and Service for their Priviledge comes by reason of their Service and their Service is known by all to be before the Conquest in the time of Edward the Confessor and in the time of the Conquerour And it is expresly said by this Learned and Reverend Judge That these Tenants in Ancient Demesn claimed this by Prescription and it could not be so if the Wages of the Knights of the Shire had begun within Memory of Man or of any Record Therefore it clearly follows That Knights of the Shire to serve in Parliament and the paying Wages to them for their Service has been Time out of Mind and did not begin 49 H. 3. for that is within Time of Memory in a Legal Sence The same Argument is used by a Learned Lawyer and Antiquary Mr. Lambard in his Archion or Commentary upon the Courts of Justice fol. 57 and 239 and 245. where the maintains that the Parliament was used in the Saxons time and then consisted of the King Lords and Commons as in the time of King Ina. Anno 712. He does affirm That Burgesses were chosen to the Parliament before the Conquest fol. 257 258 265. Littleton's Tenures sect 164. says That the ancient Towns call'd Burroughts be the most ancient Towns that are in Engl. for the Towns that now are Cities or Counties in old time were Burroughs and call'd Burroughs for that of such old Towns came the Burgesses to the Parliament Sir E. C. in his Comment upon this Text of Littl. 1 Inst. 110. says it is called Parliamentum because every Member of that Court should Parler la Ment. Many Pretenders to Learning take upon them to censure Sir E. C. for this and some other like Etymologies as being ridiculous Let me do right to that Learned in the Law and which is more honest and worthy Chief Justice who lives in his useful Works and in that great Blessing from God a numerous and flourishing Posterity It is true Mentum is an ordinary Termination of divers words of the Neuter Gender and so it is if we will be strict in the Word Parliamentum But give me leave to say if it be ridiculous he is not the first nor the greatest that hath been guilty in this kind nor is it any proof of Illiterateness nor to be charg'd only upon the Profession of the Common Law as if it were an Absurdity peculiar to us For the Antiquity of the like Etymology it is of above a thousand years standing and for the Authority of it it is to be met with in the Imperial Laws of Justinian the Roman Emperor and the last of the Roman Emperors Even in the very Text of the Civil Law it makes the Etymology of Testamentum Ex eo appellatur says the Text quod Testatio mentis est Allusione quadam Etymologica ostendit rei vocis convenientiam says Vinius in his Comment fol. 270. Nomen ab officio convenienter habet And Vinius says further Estque hujusmodi allusiva derivandi ratio omnibus Auctoribus admodum familiaris In jocis Venustas delectat qualis est illa Ciceronis Fides quia fiat quod dictum est And Sir E. C. it may be was prompted to this Etymon from that ancient Author the Mirrour of Just. who in the place I before cited c. 1. sect 3. though he did not expresly mention the Word Parliament yet speaking of it under another Name he tells us what their Property is viz. A Parler la Ment. Thus much by way of Digression for the Vindication of that Honour of our Profession Sir E. C. to whom not only his own but all Posterity are highly oblig'd especially our Profession The Register of Writs fol. 261. Quod homines de antiquo Dominico non contribuant expensis Militum ad Parliamentum venientium This is the Title of the Writ The Writ it self runs thus viz. Monstraverunt Nobis says the King Homines Tenentes de Manerio de S. quod enim de antiquo Dominico Coronae Angliae ut dicitur quod licet ipsi eorum Antecessores Tenentes de eodem Manerio a tempore quo non extat Memoria semper hactenus quieti esse consueverunt de expensis Militum ad Parliamenta Nostra vel Progenitorum Nostrorum Regum Angliae pro Communitate dicti Comitatus venientium c. M. 11. H. 4. Fitzh Avowry Placito 52. which is said to be the first Case in our Year-Books concerning Wages to Knights of the Shire In a Replevin the Defendant avows as Under-Sheriff by vertue of a Fieri facias to levy the Wages of the Knights of the Shire and he took his Distress in a Town call'd Wotton Tremain for the Plaintiff pleads in Bar to the Avowry That W. temps d'ont c. never paid to the wages of the Knights of the Shire and so Issue is joyn'd upon that Prescription M. 14. H. 8. fol 3. in the Year-Book by Fineux Ch. J. The Parliament says he consists of the King the Lords and the Commons and they are by the Com. Law One Body Corporate Now that they cannot be at the Common Law but by Prescription I shall now proceed to prove it by several Records of Parliament that the Commons have ever been a part of the Parliament as constituted at this day of Knights Citizens and Burgesses Ex Rotulo Parliamenti anno 51. E. 3. Membr 5. num 45. Mr. Pryn's 4th part of a Register of Parliamentary Writs fol. 315. in Sir Rob. Cott. Abr. it is too short but at large in Mr. Pryn as before cited There is a Petition of the Commons to the King in French. Item For that of Common Right which is the same with the Common Law in the Language of the Acts of Parliament of the Realm Of every County of England there were and are chosen two Persons to be at the Parliament for the Commons of the Counties besides the Prelates Dukes Earls and Barons and such as hold by Barony and besides Cities and Burroughs who ought to chuse of themselves such as are to answer for them And such as are chosen for the Counties ought to have their accustomed Wages and to have Writs to the Sheriffs to levy them They pray that it be ordain'd this present Parliament that the Wages be Levied of all the Commons of the Counties as well within Franchises as without excepting within Cities and Boroughs and excepting of those that are summon'd by Writ meaning the Barons and their Tenants Resp. Soit fait come devant ad este use en cest Case This was in the time of K. E. 3. who was but the Fourth King in Succession from that K. H. 3. in whose Reign our new Authors would have our Knights Citizens and Burgesses to have their Original And the Kings Answer to
will make a Foelix tremble We have often heard it confidently said from the Pulpit That our Laws are like the Spiders Webs which catch the little Flies but the great ones break through them Now it is quite contrary with this great Court this great Court encounters only with great Offenders It is like the Imperial Eagle Aquila non capit Muscas it leaves them to this and other Inferiour Courts but that takes to task the Animalia Majora In the great Case Rot. Parl. 40 E. 3. num 7. King John had resign'd up the Crown of England to the Pope by the hand of Pandolphus his Legate and sordidly submitted to take the Crown at his hand again at a yearly Tribute In the Region of our noble King Edward the 3d. the Pope demanded his Rent and all the Arrears The Prelates Dukes Counts Barons and Commons resolv'd that neither the King nor any other could put the Realm nor the People thereof into subjection sans l'assent de eux This intimates that with their joint consent the Crown may be dispos'd of This was the highest Resolution in Law in one of the highest points in Law concerning the King's Claim of an Absolute Power and in a time when the Pope was in his height And the Commons join in the Resolution both against the Pope's and King John's pretence to a Despotick Power Sir Tho. Smith who was a Secretary of State in his Commonw l. 2. c. 2. fol. 50 51. In Comitiis Parliamentariis posita est omnis absolutae potestatis vis taking in the King as the Head of them as it ought to be understood this shows where the rightful absolute Power under Almighty God is And among other Magnalia he tells us Incerti Juris Controversias dirimunt This shews their transcendent Judicial Power they determine the greatest Disputes and Doubts in Law. They would quickly decide this Dispute and Controversie were it once before them without Argument This appears to be the proper business of a Parliament even from the Writ of Summons both to Lords and Commons for they did not Anciently differ in any thing material as I have abundantly shown already they are De Arduis Regni tractitare Concilium impendere here is their Councelling Power According to that Equitable Rule Quod omnes tangit ab omnibns tractari debet Their Legislative Power is most clearly set out by Bracton a Judge in the time of K. H. 3d. in whose latter times our Innovators would have the House of Commons to begin I cited him before Legis vigorem habet says he quicquid de Consilio de Consensu Magnatum Reipubl communi Sponsione anthoritate Regis praecedente juste fuerit definitum approbatum 5 H. 4. Num. 11. The Record there uses too gross a Word The Commons says the Roll require the King it should have been made it their Request to the King and the Lords accorded that four special Persons should be remov'd out of the Kings House This in some Ages as in the Reign of K. R. the 2d would have been thought a very high presumption and a sawcy thing to speak in the Language of the Pulpit and Press too from a late Cambr. Dr. and a Chaplain in Ordinary if the Title of the Print may be credited but said to be printed by the of that University A sawcy thing with their Prophane and Unhallowed Hands to presume to meddle in a thing so Sacred Thus says the late Printed Sermon But it was a Sacred or Consecrated thing indeed in this Roll of Parliament mention'd One of the 4 required to be remov'd out of the King's House where he was a Domestick was no less than the King's Confessor And it was not in the Reign of a R. the 2d or H. the 6th but of K. H. 4th one of our Wisest and most Active Valiant Kings But it may be thought that these four Persons were in some desperate Popish Plot of killing the King as the four we have heard of were No the King himself will resolve that Doubt That noble King said in answer to it He knew no cause wherefore they should be remov'd but only for that they were hated of the People And yet that great King charged those Four to depart from his House This proves their Councelling Power I might enumerate a vast multitude of Animalia Majora no small Flies that have in several Ages been catched in the Net or Webb of an Inquiry made by the House of Commons who fish only for such greater Fish such as we call the Pike who by Oppression live upon the smaller Fish and devour them The Commons to that end fish with a Net that has a wide and large Meshe such as le ts go the small Frye and compasses none but those of the largest size Such as the Lord Latimer in the time of E. 3. An. 50. Such as Michael de la Pool E. of Suff. and Lord Chancellour in 10. R. 2. Tho. Arundel Archbishop of Canterbury 21 R. 2. and such like William de la Pool D. of Suff. 28 H. 6. who were all impeach'd by the House of Commons in several Parliaments And I my self have seen a Lord Chief Justice of this Court while he was Lord Chief Justice and a Learned Man by leave from the House of Commons pleading before that House for himself and excusing what he had done in a Tryal that came before them in the West whereof Complaint was made to the House And he did it with that great Humility and Reverence and those of his own Profession and others were so far his Advocates as that the House desisted from any further prosecution In the the late Act of 13o. of his now Majesty for safety of his Royal Person there is a Proviso for the saving of the Just Antient Freedom and the Priviledge of either of the Houses of Parliament or any of their Members of debating any Matters or Business which shall be debated or propounded in either of the said Houses or at any Conferences or Committees of both or either of the said Houses or touching the Repeal or Alteration of any old or the preparing any new Laws or the Redressing of any publick Grievances I observ'd but now out of Trewinn Case in the Ld. Dier that the Judgment of the House of Commons in a Case of the priviledge of that House in that Report is called a Judgment of the most high Court of Parliament which proves they are not without a Judicial Power 3 H. 6. Sir Rob. Cott. Abr. fol. 574. The great Case between the E. of Warwick and the Earl Marshal for Precedency fol. 576. was determin'd by the King. By Advice and Consent of the Lords and Commons and yet one would have thought that a Case of Precedency between two Peers should have been a peculiar of the Lords In the Case of 1 H. 7. in the Year Books fol. 4. about reversing of Attainders it is advis'd by all the Judges that those
and at the Trial in giving of Evidence to the Jury he did indeed speak those Words but averr'd that they were pertinent to the Matter and were part of his Instruction It was resolv'd upon a Demurrer That the Plea was good the Words being pertinent though they were false And there is a further Reason given by the Court in that Case viz. The Words appear not to be spoken out of Malice And no Actions of this sort nor will any Indictment of this Nature lie unless there be Malice in the Defendant and where there is any justifiable occasion of speaking words that a man in discharge of his Function or Calling is led by the Subject-Matter of Discourse as a Preacher or Pleader or the like to speak words in such Case it shall be presumed they were not spoken out of Malice In the Case of an Attorney Sir E. C. in his 2d Instit. in his Exposition of the Stat. of Articuli super Chartas 28E 1. c. 10. tells us That in the very next year after the making of that Stat. viz. 29 E. I. Will. de Weston brought an Action of Conspiracy in the Kings Bench against William of Hempswell Parson of Newton and John of Malden Parson of Askerby for causing the Plaintiff to be cited before the Arch-Deacon of Linc. for a Trespass whereof he had been acquitted in the King 's Court. John of Malden pleaded That he was Communis Advocatus pro suo dando and so justify'd as an Attorney and it was found the Parson was Communis Advocatus and so not guilty of the Conspiracy In the Case of a Witness For what he says as a Witness or for what is said against him to disable him from being a Witness or to take off his Credit no Action of Slander will lie 35 H. 6. 14. In an Action of Conspiracy one of the Defendants justify'd as being a Witness to the Jury Crok 432. In the King's Bench Weston against Dobneet in an Action for Slander There was a Suit in the Spiritual Court and the Plaintiff that brought the Action of Slander was produced as a Witness in that Cause and the Defendant in that Suit in the Spiritual Court put in Exceptions against him That he had been perjur'd and therefore ought not to be used as a Witness Thereupon Weston the Witness brought this Action for that Slander And after Arguments the whole Court held that the Action of Slander did not lie for this manner of Slander because it was in a course of Justice and not ex Malicia In a Writ of Conspiracy One of the Defendants pleaded that he was one of the Indictors Judgment si Actio And the Plea is allow'd 20 H. 6 5. 33. Nay though it be not in a course of Justice in a Suit of Law yet if a man be in the doing of his Duty and in discharge of his Function and his lawful Calling and in discoursing of a Subject proper for his Function and enforcing of every mans duty of avoiding of any Sin and in pursuit of it tells a Story which he takes up upon trust and does not know it to be false and it prove at last to be utterly untrue and an innocent person is highly slandered by it yet he shall not be subject to an Action of Slander for it The occasion of speaking shall clear him from the Malice without which the Action will not lie In the Book of Martyrs written by Fox there is a Story of one Greenwood who lived in Suffolk that he had perjur'd himself before the Bishop of Norwich in testifying against a Martyr that was burnt in Queen Mary's time and says Fox this Greenwood afterwards by the just judgment of God had his Bowels rotted in him and so he died This Story by Fox in his Book of Martyrs was utterly false of Mr. Greenwood and after the Printing of that Book of Martyrs Mr. Greenwood was living in that very same Parish One Prist a Parson happen'd to be Presented to the Living of that Parish where this Mr. Greenwood then dwelt and 27. Eliz. in one of his first Sermons happen'd to inveigh against the Sin of Perjury to which his Text did lead him and the better to deter the People from the Sin of Perjury he told this Story out of Fox's Book of Martyrs and named the very Man Mr. Greenwood and Mr. Greenwood himself was then in the Church and heard this Story told of himself but the Preacher knew it not but thought the Story to be true Greenwood brings an Action of Slander against Prist the Preacher and upon the Trial of the Cause before the Lord Chief Justice Wray the Case appearing to be thus he directed the Jury to find for the Defendant for that it appear'd it was not done out of Malice And Ch. I. Popham affirm'd it to be good Law it being a Matter deliver'd after his occasion as Matter of Story This Case is cited by Sir E. C. in Sir Henry Mountagu's Case before mentioned Crook f. 90. With this agrees the Case of the Lord Cromwel against Denny a Vicar 4 Rep. 13. b. in an Action de Scand Magn. There is a Case in many Circumstances of it much resembling our Case It was the Case between Smith and Crashaw and others M. 20 in the Kings Bench in Sir Palmer's Rep. 315. An Action upon the Case is there brought against the Defendants for maliciously causing the Plaintiff to be indicted of Treason upon which Indictment the Grand Jury found an Ignoramus To this Action the Defendants pleaded Not Guilty and were found Guilty It was moved in Arrest of Judgment That to accuse one for Treason was not Actionable for the Safety of the King and State For if a Man be subject to an Action for it it will be a means that Treason shall be smothered and Men will not expose themselves to Actions by making such Discoveries J. Houghton held the Action would not lie upon an Ignoramus found for by that the Party is not acquitted but may be Indicted again and Convicted But he holds That if he be Indicted and upon Trial Legitimo modo acquietatus then he shall have an Action upon the Case in Nature of a Conspirary for now he is absolutely acquitted and cleared of the Accusation and never can be Indicted again for that particular Fact. Dodderidge agrees with Houghton and puts this Case If an Action of Conspiracy be brought against a Man For Indicting the Plaintiff of Treason The Defendant may Plead Specially and that is the safest way of Pleading That he heard the Plaintiff speak such and such Treasonable Words and that he thereupon complained to a Justice of Peace who committed the Plaintiff upon it and this says he shall excuse him Ley Chief Justice inclines too against the Action and gives a strong Reason Because says he it is Misprision to Conceal it and yet if we allow of this Action it shall be Dangerous too to discover it so
Knights and others of the House of Commons should not sit in the House till the Act for reversal of their Attainders were pass'd And the Reason is that it is not convenient that such as were attaint should be Judges and it might have been added in their own Case so that attainting by Bill or Reversing Attainders tho' by Bill is most properly a Judicial Act and the Members of the House of Commons are acknowledged to be Judges in that Case by all the Judges and by that Statute of 6 H. 8. C. 16. which I mention'd before to another purpose the Iournal of the House of Commons is call'd a Record I have formerly observ'd but to another purpose too that the Writs of Summons anciently for Electing Knights Citizens and Burgesses to Parliament did direct them in their Duty that they were to meet ad Consulendum Consilium impendere tho' of late Years this has been omitted and now advantage is taken of it Let us in the next place examin whether the matters acted in this Case by the House of Commons be Warranted by these Powers of the Parliament and have been done in pursuance of those Powers And upon Examination we shall find they have done nothing but what they had a full power to do and what is agreeable to the Law and Usage of Parliament It is set forth in the Plea and admitted by the Demurrer but we all know it to be true that there was an Horrid Devillish c Popish Plot. The Enquiry after which and the searching of it to the bottom and discovering all the Accomplices was Negotium Arduum and it did Regem Statum Regni specialiter tangere according to the Writ of Summons to Parliament For the Plea tells us the design of it viz. to Kill the King. 2ly To subvert the Government and the Laws to suppress the True Religion and to destroy the Professors of it The Plea shows that One great Lord was convicted of it by Impeachment of the Commons and attainted before the Lords The Kings Speech shows there was need of further Enquiry and that it was not as yet thoroughly done nor himself nor the two Houses safe and the King charges both Houses to make an Impartial Enquiry The word Impartial imports there might be some great Persons concern'd that might be apt to be favour'd And the Plea shows that both Houses accordingly made a strict and impartial Enquiry after the Conspiracy All this appears plainly to be the proper Work of a Parliament and his Majesty himself was of that Judgment and charged them to do their Duty in it And the Enquiry is the most proper Business of the House of Commons For this Reason they are commonly styl'd The Grand Inquest of the Nation tho' Sir Rob. Filmer's bold writing terms them so by way of Diminution and Contempt as if enquiry were their highest work This Inquiry of theirs is necessary in a Subserviency to all the several High Powers of that High Court. Namely in order to their Legislature or to the Exercise of their Power of Judicature Courts that have Power of Oyer and Terminer and to punish Great and Enormous Crimes are still by their Commissioners arm'd with a Power of Empannelling grand Inquests to make Enquiries in order to their Exercise of their Power of determining Or it may be in order to their Counselling Power for removal of great Officers or Favourites whereof I have given an Instance and the Parliament Rolls and Journals are full of them But still they first make Enquiry They enquire among themselves and every Grand Jury Man by his Oath is to impart his Knowledge in any thing Material to his Fellows But the most effectual Enquiry is most probably from without doors and without such enquiry things of great importance may lye conceal'd And the Defendants Plea shows some good effect of that Enquiry Diverse were convicted And one Tho. Dangerf deliver'd in an Information and that upon Oath and first to the Lords House so that it did not begin with the Commons but if it were so Infamous and Malicious why did not the Lords Reject it and Commit the Informer and punish him No they receiv'd it and Entred it of Record in their Journal The Reason was it was done in a Course of Legal proceeding they could not reject it being the proper Court of Justice for a thing of this Nature And the King had given it them in charge to enquire Nor do they by receiving of it give it any Countenance or Credit Then why should it be so heinous a thing in the House of Commons more than in the Lords Let us remember still they are but one Body and though they sever themselves for their better dispatch of their great Affairs and distribute the Work amongst them yet the Power by which they Act is Entire But why should any man divide and sever those that are Entire It concerns the Lords equally with the Commons But how comes it to concern the Speaker of the Commons so highly above the House it self who Acts meerly as a Minister and by Command of the House but that I reserve for a point distinct But perhaps it may be allow'd that what is done by either House in receiving Dangerfield's Information and entring of it in their Journals is Parliamentary enough But the Offence and Scandal arises first upon the publishing of it in print Now a word or two to that Let us consider how publick this Information of Dangerfield's was before the printing of it It was made very publick by being deliver'd at the Bar of the Lords the High Court of Parliament and indeed all Courts of Justice ought to be open and of easie Resort The Information of Dangerfield is first made a Record of that Court and to a Court of Record any person may resort as Sir E. C. tells us in his Preface to the 3d. Rep. and that it was the Ancient Law of England and is so declar'd by a General Act of Parliament 46 E. 3. C. which tho' a general Law is not in the printed Book of Statutes as I observ'd of another general and useful Act of Parliament before however it comes to pass In that Act of 46 E. 3. the Commons prayed that a Record of whatsoever is done in the King's Court ought in Reason to remain there for perpetual Evidence for all persons And they complain that of late the Court had refus'd to suffer the People to search and to have Exemplifications for evidence against the King or to his disadvantage Therefore they pray that search and Exemplification be made to any persons of any Record whatsoever though it concern the King or any other and make against the King or any other And the Answer is Le Roy le voet But then it was made more publick by being deliver'd in at the Bar of the House of Commons which ought to consist of about 500 Members who are suppos'd to
come from all parts of the Kingdom So that this was made very publick before this publishing of it in print Let me observe by the way that this Author of the Information Tho. Dangerfield was not sent for by the House of Commons but for any thing that appears applies himself to the House of Commons as he had before done to the Lords of his own accord so that this is far from malice or ill design The Commons order it to be entred in their Journal among other Informations that had been given them And besides they order this and several others to be Printed The Offence and Scandal is suppos'd by Mr. Att. Information to begin here what need was there of printing it I wish we could hear the House of Commons answering for themselves to this point they could it may be give a better account of it and a sufficient reason for the Printing of it But let it be observ'd they barely cause it to be Printed They do not give any Attestation or Credit to it but leave all that hear or read it to judge or believe as they think fit They do not make it their own by printing it without mention of the true Author they style it the Information of Tho. Dangerfield as indeed it was they do not adopt it their own as they had done had they left out the name of the Author Nay the Author himself had deliver'd it in a course of Justice and in the Highest Court of Justice i. e. before the Lords in Parliament If it were a Libell and Slander why did the Lords receive it and cause it to be entred of Record as they did Why did they not rather reject the Information and punish the Author If it were no Crime in the Author to deliver it to the Lords were it true or false Why should it be a Crime to Print it as being his and with his Name Whether the matter of that Information were true or false yet what is done by the House of Commons and by the Defendant as their Speaker is all true that is that Tho. Dangerfield had drawn up and was the Author of such an Information and this was true By the Statutes that punish the Reporters of false News the penalty is but Imprisonment till the first Author be brought forth and that is done in this Case The Author is avouch'd and his name is Printed with the Information and it is upon Record in the Lords House and he in person did present it to the Lords Besides if there can be any just reason or occasion assign'd for the Printing of it it shall never be ascrib'd to malice or ill design and without malice alledg'd this Information lies not Nor can a thing so dishonourable as malice and ill design be decently or justly conceiv'd or objected against so Great and Grave an Assembly why it is the Body of the whole Nation And can a whole Nation be in Reason suspected to harbour Malice and to have a Design against the Common-weal that is against themselves There may most probably and justly be this in the Case to induce the Printing this Narrative or Information of Dangerfield The Plot was very desperate and dangerous it was not yet fully discover'd and search'd to the bottom They were Commanded by the King to search further into it Besides it was the proper work of the House of Commons so to enquire as they were the Grand Inquest of the Nation Here was one positive Witness already that had sworn to these particulars before the Highest Court of Justice where the great Persons concern'd in it sate themselves as Members of the Lords House But one Witness alone though it were sufficient to make an Accusation yet it was not enough to make a Conviction in High Treason the Law requires two at least The House of Commons could not in Duty and Conscience to the King and Kingdom pass it by or let it sleep This Information tho' but from one man might possibly have given Courage to another Person or more than one to testify to the same particulars if there were any more that knew them to be true who were unwilling to be the first in the discovery not knowing but they might stand singly in it but finding the discovery already made and sworn to might then think it their Duty and be encouraged to appear also in it when it might probably be of effect and amount to a Legal Testimony The difficulty and the danger and discouragement lay upon the first Informer This Consideration might induce the House of Commons out of a Sense of their Duty to make a further and impartial enquiry as his Majesty had commanded them to make it yet if possible a little more publick in order to a fuller proof and Printing is but one way among many other of Publishing or Enquiring into any matter And of late years enquiry by Printing has been a most frequent practice and we meet with it every week and it is become the most ordinary way of making enquiries which run into all parts of the Nation And the Printing of publick Proceedings at Tryals has been generally of late practis'd by the Courts of Law or by the Judges of those Courts or by the chief of them But what has made this Information of Dangerfield's more publick than Mr. Attorney General 's preferring this Information against the Defedant Mr. Williams for causing it to be publish'd in Print Had it not been thus awaken'd again it might have slept in silence and have been Buried in Oblivion Tacitus the Roman Historian tells us in his Annals in the Life of Nero of one Fabricius Veiento who was accus'd for uttering slanderous Speeches against the Lords of the Senate and against the Priests in certain Books which he termed Codicello's which in our Dialect is the same with Libels or little Books Nero would have the hearing of the Cause himself and he was Convicted before him and was Condemn'd to Exile and his Books were Sentenced to be burnt Tacitus observes that before this Sentence for the burning of the Books there was little notice taken of these Books and few there were that read them but when once it grew dangerous to read them then they were much sought after But the very opening of that Information of Dangerfield here in this great Court and in so great an Audience which was of necessity and occasion'd by Mr. Attornies Information that recites it tho' Mr. Attorney never intended this ill consequence hath made the matter of it as publick as possibly can be And it must be observ'd that it never yet came so far as to a Tryal nor to have an Ignoramus found much less to an acquital modo legitimo in which case according to the Opinion of some Judges an Action of Conspiracy or upon the Case for a Slander will not lye as not being ripe for it till an Acquital by the same Reason it is not ready
sacred Authority of any Court that it hath an absolute power that it is the highest Court in the Realm is acknowledged by our most Learned and gravest Writers and Historians for I would not wholly omit them though I do not need them but I relie only and put all the stress of my proofs and arguments upon my Authorities in Law. Cambden in his Britannia Summam sacrosanctam Authoritatem habet Parliamentum Knighton de eventibus Angliae l. 1. fo 2681. col 1 2. He calls it the Highest Court of the Realm So it is call'd in Trewinnard's Case in Dier 60 61. Sr. Thomas Smith in his Common-Wealth of England l. 2. c. 2. fo 50 51. In Comitiis Parliamentariis posita est omnis absolutae potestatis vis Sir R. Cotton in his Posthuma edit at Lond. pag. 345. cited by Mr. Pryn in his Preface to Sir Robert Cotton ' s Abr. The Parliament controlls all Inferior Courts and all Causes of difficulty cum aliqua dubitatio emergit referr it to the Parliament To shew their power and jurisdiction upon Erroneous proceedings in other Courts by authorities in Law which confirms one of my Reasons In Trewinnard's case it is said that though the Parliament erre it is not reversible in any other Court This is spoken in a case where the then occasion was upon a Judgment given only by the House of Commons in a case of Priviledge Agreeable to this is 21 E. 3. fo 46. Br. Abr. tit Error plac 65. in the latter end of that case and 7 H. 6. Br. Abr. tit Error plac 68. by Cottesmore and 1 H. 7. fo 19. Br. Error plac 137. Error in Parliament shall be revers'd in Parliament non aliter for there is not an higher Court. 1 H. 7. fo 19 20. By all the Judges in the Exchequer-Chamber for a Judgment in the King's-Bench Error must be sued in Parliament and as the Parliament shall correct the Judgments so they are to correct the Judges that give corrupt and dishonest Judgments These are the words and the opinions of the Lord chief Justice Vaughan in his Reports fo 139. in Bushel's case Such says he in all ages have been complained of to the King in the Star-Chamber which is a Court now dissolv'd by Parliament or to the Parliament He there mentions many Judges those 44. that were hang'd in King Alfred's time before the Conquest for corrupt judgments and those in the time of E. 1. E. 3. and R. 2. for their pernicious resolutions He vouches the Journals of Parliament and instances in the Judgment of Ship-money in the last King's time and the particular Judges impeach'd Sir E. C. in his 12 Rep. fol. 64. the words are spoken by Sir E. C. but as that Rep. says with the clear consent of all the Judges The King hath his Court that is to say in the Vpper House of Parliament in which he with his Lords is the Supreme Judge over all other Judges For if Error be in the Common-Pleas that may be revers'd in the King's-Bench and if the Court of King's-Bench erre that may be revers'd in the Upper House of Parliament by the King with the assent of the Lords Now though this is spoken of the Lords House only yet it must be again remembred that the Parliament as I prov'd before is one entire Body and that their power in the right of it is entire though as to the exercise of it it is distributed into parts and is divided Not can the House of Lords exercise any power as an House of Parliament or as a Court for Errors without the House of Commons be in being at the same time Both Houses must be Prorogu'd together and Dissolv'd together like the Twins of Hippocrates they live and die together and the one cannot be in being without the other also at the same time be in being too 2. Inst. 408. Matters of difficulty were heretofore usually Adjourn'd to Parliament but says he 't is now disused And 2. Inst. 599. Courts at variance properly complain to the Parliament 4. Inst. In the Chapter of the Court of the Kings-Bench Errors in the Kings-Bench in matters that concern their Jurisdiction and other Cases there excepted in the Act of 27 Eliz. Cap. 8. cannot be Revers'd but in the High Court of Parliament 4. Inst. Fol. 67. There is a Court Erected by the Statute of 14 E. 3. Cap. 5. Stat. 2. For redress of delays of Judgments in the Kings great Courts consisting of a Prelate Two Earls and Two Barons to be chosen in Parliament by that Statute If the Case before them be so difficult that it may not well be determin'd without assent of the Parliament it does not say by the House of Lords only then shall the tenor of the Record be brought by the said Prelate Earls and Barons into the next Parliament and there a final Judgment shall be given Si obscurum difficile sit Judicium ponantur judicia in respectu usque magnam curiam Rot. Parl. 14. E. 3. Num. ult Sir Jeffery Stanton's Case 25. E. 3. Cap. 2. The Chapter of Treason in the 2. Inst. Fol. 21. The Judge or Court in some Cases is to forbear going to Judgment till the Cause be shewed before the King and his Parliament whether it ought to be judged Treason or not That this Court proceeds by the ordinary Rules of the Common Law but that High Court of Parliament proceeds not by that Law but by a Law peculiar to that High Court which is called Lex Consuetudo Parliamenti and consists in the Customs Usages and Course of Parliament and therefore this Court nor no other inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament If this Court should take upon it to proceed in such cases it would justly be said of it as a thing very irregular Metiri se quemque suo modulo ac pede verum est Sir Rob. Cott. Abr. 20. R. 2. nu 14 15. Sir Tho. Haxey delivered a Bill to the Commons in Parliament for the honour and profit of the King and of all the Realm complaining of the outragious Expences of the Kings House and namely of Bishops and Ladies Here the Camb. Dr. I have before mention'd would take occasion again to complain of the sauciness of this Bill K. R. 2. was offended with the Commons for preferring this Bill to the King for it seems they had entertain'd this Information from a particular hand as was done in our Case from Dangerfield and they proceeded upon it K. R. 2. said it was an offence against his Dignity and Liberty and said he would be free therein And Sir John Bussey the Speaker to the Parliament as that Roll of Parliament calls him is charg'd to declare the Name of him who Exhibited that Bill By this it appears the King could not take notice of what was done in the Commons-House or deliver'd to them but by
his Treatise of the manner of Enacting Laws in Parliament Fol. 125. reports this Case of Thorp at large It is time now to come to higher Authorities that is to Resolutions of Parliament in this point And first the Resolution of the House of Commons in maintenance of their own Right or at least a claim of their Right I have it out of an Author that is very far from being a friend to the House of Commons and 't is a Clergy-man too I mean Dr. Heylin in the Life of Archbishop Laud Fol. 89. He reports that the House of Commons made a Protestation in 1621. against all Impeachments other than in the House for any thing there said or done Let me present you with the like claim made by the Lords which seems to run something in the form of an old Act of Parliament In Sir Rob. Cott. Abr. 11. R. 2. nu 7. In that Parliament all the Lords as well Spiritual as Temporal being present claimed their Liberties and Franchises viz. That all weighty matters in the same Parliament which should be afterwards moved touching the Peers of the Land ought to be determin'd judged and discussed by the Course of the Parliament and not by the Civil Law nor yet by the common Laws of the Land used in other more Courts of the Realm The which Claim and Liberties the King most willingly allow'd and granted thereto in full Parliament says that Roll. Now as I have before prov'd the Liberties and Franchises of the Parliament in the right of them are entire and due to both Houses for both make up the Parliament Mr. Seld. in his Title of Honour Fol. says That a thing granted in full Parliament signifies an Act of Parliament Now for an Act of Parliament full in the point and then I can go no higher It was in the Case of Richard Strode one of the Burgesses for Plympton in Devonshire in the Parliament of 4 H. 8. for agreeing with the Commons House in putting out Bills as it is reported there which seems to resemble the Printing or Publishing mention'd in our Case Those Bills so put out were against the Abuses of the Tinners who were a great and numerous Body of men who by these Bills took themselves to be scandalized and slandered After the Parliament was risen this Richard Strode for what he had so done in Parliament was presented and found guilty in the Stannary-Courts and condemn'd to forfeit 40. l. a moderate fine He was for this imprison'd in a Dungeon within a Castle and fed with Bread and Water When the Parliament met again he Petition'd the Parliament for remedy and that the Judgments had against him and the Executions might be made void which was done accordingly by Act of Parliament And it was further Enacted That all Suits Accusations Condemnations Executions Fines Amerciaments Punishments pass'd or had or thereafter to be pass'd or had upon the said Strode and to every other person that was in that Parliament thus far it is a private and particular Act but the reason of this and the Justice of it extends to all like Cases but then it goes farther Or that of any Parliament hereafter shall be for any Bill speaking reasoning or declaring of any matter concerning the Parliament to be communed or treated of these are very large and general words be utterly void and of none effect And it goes farther yet And that any person vexed or troubled or otherwise charged for any Cause as aforesaid shall have an Action of the Case against every person so vexing contrary to this Ordinance and recover treble damages and costs Here now is an Action given against one for what they shall do in a course of Justice But it is because it is suing in an inferior Court that has no jurisdiction in the matter This Act takes away all jurisdiction in such Parliament Cases from all other Courts I know that in the Case of Denzill Hollis afterwards the Lord Hollis Mr. Seld. and others 3 Car. I. the Judges being consulted upon some Questions propounded Res. That that Act of Strode's was a particular Act and extended to Strode only and no doubt it was a particular Act in a great part of it and in that part extended to Strode only But if the Judges meant that no part of that Act was a general Law then I must crave leave to say 1. That their opinion was extrajudicial it was delivered upon their being consulted with about Questions propounded to them and therefore hath not that weight And I must take the liberty to appeal to the very words of the Statute it self and to any man of reason and honesty to use his reason aright that shall read them and I must offer some reasons against their opinion and cite some good Authority in that point and then leave it to this Court to judge of it The words and persons and time mention'd in the latter part of that Act are general It speaks indeed first of Strode in particular but then it hath these words every other person It mentions that Parliament in particular but then it proceeds to speak of any Parliament that there-after shall be Then the things also are general that the Act extends to not onely to indemnifie Strode for what he had said or done in parliament but then the Indemnity extends to every other person for any Bill Speaking Reasoning or Declaring of any matter concerning the Parliament The words of the Royal Assent to this Bill are such as are constantly used only to general Acts viz. Le Roy veut whereas to a particular Act the Royal Answer is Soit droit fait al parties And this Act of 4 H. 8. is enrolled as general Acts use to be But a private or particular Act is always fil'd but never enroll'd for this latter distinction we shall find it in the Case 33 H. 6. fol. 17 18. for authority in this question Sir E. C. in his 4th Instit. fol. 19. holds this Act of 4 H. 8. in the latter part of it to be a general Act. It is indeed commonly said Boni Judicis est ampliare jurisdictionem But I take that to be better advice which was given by the Lord Chancellor Sir Francis Bacon to Mr. Justice Hutton upon the swearing him one of the Judges of the Court of Common-Pleas That he would take care to contain the jurisdiction of the Court within the ancient Mere-Stones without removing the mark I find but one Resolution in all our Books that I can meet with that seems to make against us in this point and maintains a jurisdiction in this Court for a Misdemeanor or Conspiracy suppos'd to be done by some particular Members of the House of Commons in the House in time of Parliament It is reported by Mr. Justice Croke in his Reports of the time of King Charles fol. 181. but it is more fully reported in a late Book entitled Memorials of the English
offences committed in Parliament were not punishable in the Kings-Bench namely because Parliaments will be partial in Cases of their own Members This carries with it a very high reflection upon that great and solemn Assembly to entertain a thought so mean and so dishonourable of the Supreme Court of the Nation that the Court which is to Correct the Errors of all other Courts and is the last resort of the Nation that they should be guilty of Injustice and Partiality No Man that is a lover of his Country or a friend to his own true and honest Interest will harbour a dishonourable thought of that great Assembly I am apter to think that the reporter of that Case did mistake when he charg'd that worthy and reverend Judge Mr. Just. Croke with the offering of that for a Reason I find the most Reverend of our Judges speaking with the greatest Reverence of that Supreme Court. Besides the Learned Lord Chief Justice Sir Edw. Coke who often expresses his great veneration for them Hear what the Ch. Just. Brook and Just. Saunders say of that Assembly in Plowd Comment in the Case of Hill and Grange Fo. 175. a. towards the lower end of that Folio Injustice say they may not be presum'd of a Parliament And in the Earl of Leicester's Case in the same Comment Fol. 398. towards the end of the Folio The Parliament is a Court of very high Honour and Justice of which no man ought to imagine a thing dishonourable I do agree that an offence committed in Parliament is a very high offence but the higher it is the more proper it is for their Judicature and that Court is arm'd with a power to punish the highest offences and the highest offenders But to take it out of their hands and to make it determinable in any other Court is a disparagement to that Grave and Supreme Court. We easily agree that a Parliament may Erre for they are not Infallible but the Law hath provided a Remedy against those Errors and a way to Reform them A subsequent Parliament may Reform the Errors of a preceding Parliament as I have prov'd by several Authorities But to say they will be partial or unjust or corrupt or do any thing out of malice is to raise a scandal upon the whole Nation whose Representative they are I will make no difficulty to affirm That if any offence whatever be committed in the Parliament by any particular Members as this was accounted a Force or Riot in the Case of Denzill Hollis and Selden and others committed upon the Speaker it is an high infringement of the right and privilege of Parliament for any Person or Court to take the least notice of it till the House it self either has punish'd the Offender or referr'd them to a due or proper course of punishment To do otherwise would be to make the highest Court an Offender and to charge them with Injustice Nay their right and privilege so far extends that not only what is done in the very House sitting the Parliament but whatever is done relating to them or in pursuance of their Order during the Parliament and sitting the Parliament is no where else to be punish'd but by themselves or a succeeding Parliament although done out of the House as in the case of Ferrers It any shall imagine as Mr. Pryn does and others that of later times the Parliament have encroach'd more power than anciently belong'd to them I have already answer'd this objection by shewing how large a power they exercis'd of old and see what is further mentioned in Lamb. Archion 57. viz. That King H. 3. was told by his Lords Spiritual and Temporal that of ancient time the Creating and Deposing of all the Judges and great Officers belong'd to the Parliament I do not deny but some sort of Orders by them made are no longer in force than while the Parliament sits but then what is done after the Parliament is risen is not to be said to be done by their Order for then it ceases to be their Order This must be understood of matters Executory not as to things executed by their Order during Parliament However this Case of Denzill Hollis comes not home to our present Case but 't is wonderfully short of it This was an Offence charg'd only upon some Particular Members and it cannot be denied but particular persons even in the Parliament may misdemean themselves and they are to be punish'd by the Parliament but no where else But in our Case that which makes the Offence and for which the Information is brought by the Kings Attorney is what is done by the whole House of Commons and by virtue of their express Order Although as I have already observ'd the Information it self does not expresly own it yet the demurrer to the Defendant's Plea which sets it all forth does most plainly avow it And this I am sure is without any colour of precedent and never was attempted till this time If any Man will extenuate or justify this way of proceeding by saying that this was not for any thing done in the House but a matter done out of the House viz. the Printing and Publishing was abroad in the Printing-House and in the Streets and spreading them abroad throughout the Kingdom Yet this will not salve it for the Defendant did what he did as Speaker and not in his private Capacity And it was done by order of the whole House and sitting the Parliament so that this Information does directly question the Parliament it self and Arraigns their power and actings for I have fully prov'd that what the Defendant has done is not his Act but indeed the Acting of the whole House of Commons And I have also prov'd that the Two Houses as to the right of the power that they claim and use is but one and they are intire though they may divide in the exercise of that power So that it is a matter of the highest concernment to the Nation that possibly can be Sir E. C. in his Fourth Inst. in his Chapter of the High Court of Parliament mentions Two Cases only and some other beginnings of a Prosecution against such as absented themselves from Parliament and departed from it without Licence but they had no effect as he affirms but only against Six timorous Burgesses where Thirty nine Members were inform'd against who ad redimendam vexationem submitted to Fines but he could not find that ever they paid any The first of the Two Cases is that of the Bishop of Winchester it is in the Year-Book of 3 E. 3. Fol. 18 and 19. Fitz. H. Abr. tit Coron plac 161. And he affirms that those are all the Cases that he can find concerning this matter The suit against the Bishop was by original Writ in the Kings-Bench and it charges him with a Trespass and Contempt in departing from the Parliament without the Kings Licence The Bishop there pleads as the Defendant does in this Case to
or lawfully may be Reformed Redressed Corrected c. In Sir Edw. Cokes 12 Rep. fol. 49 It was Resolved Trin. 6. Jae Per totam Curiam in the Court of Common-Pleas there being then Five Judges of that Court Coke being Chief Justice That the High Commissioners by vertue of their Commission and that Act of Parliament ought to proceed according to Ecclesiastical Law. Secondly If their Commission gave them any Power which was not allowed or warranted by that Act of Parliament it was not Legal which proves that such Power cannot be exercis'd by a Commission under the Great Seal merely without an Act of Parliament See Drakes Case in Justice Croke's Reports of the time of King Charles fol. 220. There it is also Resolv'd That the King by his Commissioners cannot alter the Ecclesiastical Law nor the Proceedings of ☞ it And if the Word Lawfully had not been in that Act of 1. Eliz. yet it must have been so intended and the Judges of the Common Law who are proper Judges Expositors and Interpreters of Acts of Parliament would have so understood it as appears by the Resolution of the Judges in the Case in the same 12. Rep. of the Lord Coke fol. 84 85. and little regard therefore was given by the Judges to Commissions under the Great Seal which the Arch Bishop of Canterbury Abbot said had been made in like Cases in the Times of King Hen. VIII and Ed. VI. In the last Case ibidem fol. 85. the Chief Justice Coke says He had seen the Commission made to Cromwell by King Hen. VIII to be Vice-gerent and other Commissions to others by his appointment and he refers to the Commission at large inserted in his Book of Precedents See in the same 12. Rep. of Sir Edw. Coke f. 88. Excellent Rules to be observ'd upon such extraordinary Commissions viz. They ought to be solemnly read for they may possibly contain many things against the Law as the Commission in that Case mentioned did The Commissioners may every one of them require Copies of the Commission The Commissioners ought to Sit in an open Place and at certain Days Note also That such Commissions ought not to be kept secret but they ought to be Enrolled in the Chancery That the Subjects may be under a known Authority See Sir Coke's 4. Instit. fol. 332. the middle of that fol. And upon irregular and illegal Commissions in Ecclesiastical Causes the Remedy is by Prohibition out of the Courts at Westminster In the same 4 Instit. fol. 340. the Author hath this Note Nota Stephen Gardiner Bishop of Winchester was depriv'd at Lambeth by Commission from King Edward the VI. made to Ten Persons proceeding upon it ex Officio mero mixto vel promoto omni appellatione remotâ summarie de plano absque omni forma figura Judicii sola Facti Veritate inspecta The Author passes no Opinion upon it Quaere by what Law this was warranted It must be rare and extraordinary otherwise Sir Edw. Coke would not have so specially mention'd it but a Facto ad Jus non valet Argumentum Note That part of the Act of 1 Eliz. viz. the 18th Paragraph before verbatim transcribed viz. of the Queen Eliz. and her Successors granting such Letters Patents or Commissions in Ecclesiastical Causes is repealed by the Act made 16 Car. 1. cap. 11. See it in Mr. Keeble's Book of Statutes at large See the last Paragr or Clause in that Act of Repeal of 16 Car. 1. It is Enacted That no new Court shall be erected or appointed which shall have The like Power or Jurisdiction as the High Commissioners had or pretended to have but that all such Letters Patents Commissions and Grants and all Powers and Authorities thereby granted and all Acts Sentences and Decrees to be made by vertue or colour of them shall be Void Note The late Act of 13 Car. 2. cap. 12. in Mr. Keeble's Book of Statutes does declare that the Ordinary Power of Arch-Bishops and Bishops was not taken away by that Repealing Act of 17 Car. 1. cap. 11. as this last Act dates it But by this Act of 13 Car. 2. cap. 12. in the second Paragraph The aforesaid Repealing Act of 17 Car. 1. and all the Matters and Clauses therein contained excepting what concerns the High Commission Court or the new Erection of some such like Court by Commission are Repealed See the third Paragraph also of the Act of 13. Car. 2. That the High Commission Court shall not be Revived So that I conceive no such Commission nor Letters Patents can now be granted but the Repealing Act of 16 or 17 Car. 1. stands in force against it By what Law or Rules Cromwell in the Time of King Henry VIII and by what Instructions he acted does not appear the Commissions to make him Vicar General which was surely in Imitation of what had been used by the Pope in the time of his Usurpation or that of Vice-gerent in Ecclesiastical Matters which seems to be new and prime Impressionis are not now to be found of which Dr. Burnet in the History of the Reformation of the Church of England makes some probable conjectures fol. 181. and wherein consisted the difference between those two Authorities and Titles and the Commissions for the exercise of them is not easy to find out But the thing then principally design'd was to suppress the religious Houses belonging to the regular Clergy which were great Supports to the Popish Hierarchy not at all to impeach the Lawful Power and Jurisdiction of Episcopacy for we find at the same time as Cromwell's Commissions were in force and had been then but newly passed That Cranmer Arch-Bishop of Canterbury made his Metropolitical Visitation under which as I conceive most properly falls the Conusance of any contempt or abuse committed by any of his Suffragan Bishops if not in a Provincial Synod Archiepiscopi Jurisdictioni subsunt immediate suffraganti See Lind. Provin The exclusion of the Pope in the Time of King Hen. VIII made no diminution of the Power or Jurisdiction of the Clergy as to determining of Ecclesiastical Causes or making Canons Constitutions and other Synodical Acts as is rightly observ'd by Dr. Heylin in his Introduction to the History of Laud late Arch-Bishop of Canterbury upon this ground it is that to this day they exercise all manner of Ecclesiastical Jurisdiction in their own Names and under the distinct Seals of their Offices the Statutes that made some Alteration in the matter being all repealed See Dr. Heylin's Introduct aforesaid ibid. fol. 341. The Legislative Power in Matters Ecclesiastical continues in the Convocation for making Canons and Constitutions confirmed by the King and Parliament Discipline and the Admonition still resides in the Bishops and those under them In Case of any Irregularity in the Metropolitan Resort must doubtless be to the Head of the Church upon Earth the King as it was in the Case of Arch-Bishop Abbot who shooting at