awarded him to the custody of the Marshall and to make fine and ransome at the Kings pleasure Whereupon the Commons REQUIRED by way of petition that he might lose all his Offices and no longer be of the Kings Councell which the King granted The Commons not joyning at all with the Lords in his judgement neither could they so joyne he being a Peer And for the Lord Nevill in that Parliament num 33. he was only accused not judged by the Commons Sixthly The case of 2. H. 5. rot Parl. num 15. that Error is there assigned that the Lords gave judgement without Petition or assent of the Commons is a grosse mistake For the record only recites That Thomas Mountague Earle of Salisbury Sonne and Heire of Iohn Mountague Earle of Salisbury exhibited his petition in Parliament to reverse a judgement given against his said father in the Parliament at Westminster in the second year of King Henry the fourth Whereupon he exhibited certaine reversals of Judgements given in Parliament as making on his behalfe to the Lords consideration reversed for some errors assigned in those jadgements to wit one judgement given against Thomas heretofore Earle of Lancaster before King Edward the second at Pomfract the monday before the feast of the Annuntiation in the fifteenth yeare of his reigne and another Judgement against Roger de Mortymer late Earle of March in the Parliament of King Edward the third the Monday after the Feast of St. Katherine in the fourth yeare of his reigne at Westminster Which judgements being distinctly and openly read and fully understood Jo seemed TO THE KING and LORDS that the case of the death and execution of the said John late Earle of Sarum and of the judgement aforesaid against him given is not nor was like to the case of the executing of the said Thomas heretofore Earle of Lancaster nor to the case of the killing of Roger Earle of March nor to any judgement given against the said Thomas and Roger as aforesaid but that the judgement and declaration had and given against the said Iohn late Earle of Sarum WERE A GOOD JUST and LEGALL DECLARATION and JUDGEMENT Per quod CONSIDERATUM FUIT in praesenti Parliamento PER PRAEDICTOS DOMINOS tunc ibidem existentes DE ASSINSU dicti Domini nostri Regis quod praefatus nunc COMES Sarum NIHIL CAPIAT PER PETITIONEM aut prosecutionem suam praedictam Et ulterius TAM DOMINI SPIRITUALES QUAM TEMPORALE supradicti JUDICIUMET DECLARATIONEM praedicta versus dictum Ioannem quondam Comitem Sarum ut praemâ—ttitur habita five reddita DE ASSENSU IPSIUS DOMINI REGIS AFFIRMARUNT FORE ET ESSE BONA JUSTA ET REGALIA et ea pro hujusmodi EX ABUNDANTI DISCREVERUNT ADJUDICARUNT TUNC IBIDEM This is all that is mentioned in this Parliament Roll concerning this businesse It appeares by the Parliament Roll of 2 H. 4. num 30. That Thomas Holland Earl of Kent Iohn Holland Earle of huntingdoâ— Iohn Mountagne Earle of Sarum Thomas Lord de Dispencer and Ralph omely Knight were impeached of high treason before the King and Lords in Parliament for levying actuall Warre against the King to destroy the King and his Subjects and for this taken and beheade and hereupon ALL â—â—E LORDS TEMPORALL BEING IN PARLIAMENT BY ASSENT OF THE KING DECLARED AND ADJVDGED all the said persons TRAITORS for leavying Warre against the King and that as Traytors they should forfeit all the lands they had in fee simple the 5 day of Jannary the first yeare of the raigne of the King or after according to the Law of the Land with all their goods and chattells notwithstanding they were slaine upon the said levying of Warre without processe of Law So this Record To reverse this judgement was this Petition of Thomas Earle oâ— Sarisbury in 2. H. 5. exhibited without the errour assigned as appeares by the Parâ—iament roll but if it were that the Lords only gave Judgement without Petition or assent of the Commons as Sir Edward Cooke imagins 〈◊〉 the King and Lords who upon solemned bate over-ruled the errour abuses and Petitions and found this judgâ—ment and Declaration of 2. H. 4. given by the Lords alone with the Kings assent without the Commons TO BE GOOD JVST and LEGALL as they did ex abundâ—nti is a most undeniable proofe of the King and Lords sole right of JVDGEING and DECLARING HIGH TREASON in Parliament without the Commons as well in case of Commoners as Lords Ralph Lomely being but a Commoner and Knight though the rest were Peers and yet all joyntly adjudged Traytors and declared such only by the King and Lords without the Commons and the Judgement assured to be good by the Commons who in the Parliament of 13. H. 4. num 19. Petitioned the Iohn Lomley might be restored by act of Parliament and made capable to inherit his fathers lands thus attainted to which the King by ASSENT OF THE LORDS SPIRITVALL and TEMPORALL consented Seventhly the Parliament Roll of 28. H. 6. num 18. c. containes onely an Impeachment of High Treason against the King and other great misdemeanors against the Kingdome and wrongs to particular persons comprised by way of Articles in two distinct Bills brought up by the Commons and presented by William Tresham their Speaker to the King in the Lords House the 7. day of February against William de la Pole Duke of Suffolke to which they desired the Duke might give in his Answer by a certaine day which he did absolutly denying the Treason against the King and denying and excusing himselfe of the rest without putting himselfe upon the Tryall of his Peeres The Chiefe Iustice thereupon the 14. day of March by the Kings command asked this Question of the LORDS WHAT ADVISE THEY WOULD GIVE THE KING what is to doe futrher in this matter which advise was deferred till Monday then next following whereon nothing was done in that matter On Tuesday the 17. of March the King sent for all the Lords Spirituall and Temporall then being in Towne being 42. in all into his Inner Chamber within his Palace of Westminster where when they were all assembled hee then sent for the Duke thither who comming into the Kings presence kneeled downe and continued kneeling till the Chancellour of England had delivered the Kings command to him and demanded of him what he said to the Commons Articles not having put himselfe upon his Peerage Whereupon the Duke denyed all the Articles touching the Kings Person and state of the Realme as false and scandalous And so not departing from his said Answers submitted himselfe wholly to the Kings Rule and Governance without putting himselfe upon his Peerage Where thus the Chancellour told him That as touching the great and horrible things contained in the first Bill the King holdeth him neither declared nor charged And as touching the second Bill containing misprisons which are not criminall the King by force of his submission by his owne advise and
Arraignement of Persecution The Ordinance against Tythes unmounted See Mr. Edwards Gangrana part 3. p. 209. to 204. Pamphlets and by some late e See the severall Remonstrances from his Excellency and the Army from June till December last The agreement of the people the grand Designe Putâ—ey Projects Remonstrances and Engagements from their Confederates and Agitators in the Army a speedy period and dissolution of this Parliament and a new modelling and more equall distribution of Members in the very House of Commons for the future All which Petitions Papers Remonstrances and Pamphlets of theirs tending to the utter subversion of Parliaments the fundamentall Lawes and Government of the Kingdome and introduction of all arbitrary popular Polarchy and Tyranny are rather to be ranked among and more agreeable to the Earle of Straffords and Canterburies Treasons which they exceed by many degrees then to be sleighted or countenanced as they are the keeping up of the honour of Peers and rights and Priviledges of both Houses within their just bounds without interfeiring or incroachment upon one another or invading the peoples just Liberties and Rights being the onely meanes of their and our preservation settlement security upon which consideration I shall endeavour as briefly and fully as I may to vindicate the undoubted Right of the Lords and Peers of this Realme to sit and vote in Parliament notwithstanding they are not elected by the people and make good the right and power of Judicature as well of Commoners as Peers against all cavills of the Anabaptisticall Levellers Lilburnians Sectariâ—s Agitators and I hope so farre to silence and stop their mouthes if not convince their judgements that they shall never be able to reply again hereto The sum of all they object against the Lords right of sitting voting and judging in Parliament is this f Overtons Defiance against all arbitrary usurpation of the House of Lords p. 5. 6 15. 17. 18. his Arrow against all Tyrants p. 6 10. 11. 12. and others forecited That they sit there only by Patent the Kings will Tenure or descent not onely by the Peoples free Election as the Knights Citizens and Burgesses doe That the people never intrusted nor invested them with any power but the King they represent themselves onely not the Commons and the Sonnes onely of Conquest brought in by the Conquerour of Usurpation not of Choice and Election 1. To this I answer first That our Earls Barons Nobles and Archbishops Bishops and Abbots too who held by Barony sate anciently in all our Parliaments and Generall Counsells and Assemblies many hundred yeares before the Conquest by right of Peerage and Tenure as now they doe as Modus tenendi Parliamentum g Epist to his 9. Report Institutes on Litleton p. 110 4. Institutes c. 1. Sir Edward Cook Vowell h M. Seldens Titles of Honour part 2. ch 5. where this is abundantly manifested Spelmaâ—ni Concil tâ—m 1. Truth triumpâ—ing over Falshood antiquity over Novelty p. 36 c. The Freeholders Grand inquest p. 4. to 20. and others write and our Historians record therefore this is a grosse mistake That they are the Sonnes of Conquest introduced by the Conquerour the rather because in all Empires and Kingdomes in the world though free and never conquered their Princes Nobles Lords and great Officers of State have ever sate in all their Parliaments Senates and Generall Counsells of State by reason of their Honors and places only without any popular Elections as is cleare by these Texts of Scripture 1 Chron. 13. 1 2. c. 28. 1 2. c. c. 29. 1. 6. 24. 2 Chron. 1 2 3. c. 5. 3. 4. c. c. 23. 2. 3. 20. 21. c. 30. 2. 3. 6. 12. c. 34. 29. 30. c. 35. 7. 8. Neh. 9. 38. c. 10. Esther 1. 13. to 22. Dan. 3. 2. 3. 2 Chro. 29. 30. c. 32. 3. Ezra 9. 1. c. 10. 8. 1 Sam. 5. 8. c. 29. 3. to 10. Psa 68. 27. Prov. 8. 15 16. Isa 19. 11. 12. 13. Jer. 17. 25. c. 26. 11. 16. c. 36. 12. 14. c. 37. 14. 15. c. 38. 4. 25. 27. Dan. 6. 1. 6 7. Jonah 3. 7. Psa 2. 2. Isa 1. 23. 26. compared together and by all Historians and Polititians testimonies 2. Secondly that they sit there onely by the Kings Patent is false for first many Peeres and Nobles have been created in and by i See M. Seldens Titles of Honour p. 2. ch 5. 14. â— 3. c. 35. 9. R. 2. n. 16. 20. R. 2. n. 80 1. H. 4. â— 81. with many more Parliament at the Commons and Peoples earnest Petitions and by Patents confirmed in Parliament of which there are many Presidents Secondly though the Kings Writ or Patent create others of them Peers and Baroâ—'s without the peoples consent yet the Lawes and Statutes of the Realme made by the Commons consents and approved by the people allow the King this power and authorize and k 5. R. 2. Stat. 2. c. 4 31. H. 8. c. 10. enjoyne Lords and Barons to sit in Parliament when thus created if there be no just exceptions taken to them by the Houses therefore though they are created Lords and Peers and sit in Parliament by the Kings Patent and Writ onely by way of instrument and conveyance yet originally and really they are made and sit there by the Lawes and Statutes of the Realme to which all the people have consented of which more hereafter Thirdly all ancient and new Cities and Burroughs who send Citizens and Burgesses to Parliament and the Divisions of Counties were originally created and invested with this power to elect Citizens Burgesses and Knights for the Parliament l Lâ—e Lit. c. 10. Sect. 162 164. Cook Ibidem 49. Ass 8. only by the Kings Letters Patents and Charters not by the peoples election and choice and none of them do or can choose or send Knights Citizens and Burgesses to Parliament m Cook 4. Instit c. 1. Crâ—mptons Jurisdiction of Couâ—ts c. 1. 1. R. 1. c 4. 8. H. 4 c. 14 8. H. 5. c. 7. 32. H. 6. c. 15 14 H. 5. c 3 l. 1. H. 7 12 2 H. 7. 13. a. 5. H 7. 9. H. 7. 12. 14 H. 6. 12. 7. â— 4. 14 15. â— 4 15. Cooâ— 1. 〈◊〉 250. a. without the Kings Writ directed to them but onely by power and vertue of it therefore if the Lords sitting in Parliament be illegall and unwarrantable because they sit onely by Patent and Writs from the King the sitting of Knights Citizens and Burgesses must be so too because they are elected only by the Kings Writ and enabled to elect and choose them only by his Patents the power of * creating Cities Burroughs and Knights being originally in the King as well as the power of creating Lords and Barons 3. Thirdly that the generall election of the people is not absolutely necessarie nor essentiall to the making of a King Magistrate Counseller of State Peer or member of Parliament
2. 13 R. 2. n. 6 7. 17 R. 2. n. 17 18. 8 H. 4. n. 31. to 92. 11 H. 4. n. 14. 28. 39. 44. 13 H. 4. n. 11. Commons too when ever they recommended Councellors of State to the King in Parliament made choice of f See the Soveraigne Power of Parliaments part 1. and 2. Lords and other Peers for their Privy Councellors and therefore it was thought fit just and equall the King should ever summon them to the Parliament by his Writ without any election of the people Mr. Pryns Truth Triumphing over falshood p. 56. to 70. Stat. de 4 E. 1. c. 2. Lambert Archaion for their own inherent wisdome excellency and worth the Originall cause of advancing and ennobling them at first as is expressed in their Patents and evident by these Scripture texts Esth 1. 13 14. Isay 59. 11 12 13. Jer. 5. 5. c. 10. 7. c. 51. 57. Dan. 2. 48. c. 6. 1 2 3. Gen. 41. 39 40. Psal 101. 21 22. compared together This ground of calling the Nobles to the Parliament is intimated in the very words of the summons Et ibidem VOBIS CUM Coloquium habere tractare de arduis urgentibus Regni Ecclesiae Anglicanae negociis VESTRUM QUE CONSILIUM IMPENSUR c. Et hoc nullatenus omittatis which implies them to be men of wisdome and experience able to counsell and advise the King in all his weighty and arduous affaires both of the Kingdome and Church I could give many instances wherein the Commons in Parliament have extraordinarily applauded the Lords and Peers for their great wisdome and especially desired their wholesome Counsell as persons of greater wisdome and experience then themselves but for brevity sake I shall cite onely two Records one of them most sutable to the present deplorable condition of our State and worthy imitation In the Parliament of 21 Edw. 3. no. 45. William de Thorpe in the presence of the King Prelates Earles Barons and Commons declared that the Parliament was called for two causes The first concerning the Wars which the King had undertaken by the consent of the Lords and Commons against His Enemies of France The second how the Peace of England may be kept Whereupon the King would the Commons should consult together and that within four daies they should give answer to the King and His Counsell what they think therein On the fourth day the Commons declare THAT THEY ARE NOT ABLE TO COUNSEL ANY THING TOUCHING THE POINT OF WAR wherefore they desire in that behalf to be excused And that the King will thereof ADVISE WITH HIS NOBLES AND COUNCEL and what shall be so amongst them determined they the Commons will thereto assent confirme and establish By which it is evident the Commons then reputed the Nobles more wise and able to advise the King in matters of War then themselves who confessed their inability herein and therefore submitted to assent to whatever the Nobles and Councel should therein advise Him 28 Edw. 3. n. 55. The Commons submit the whole businesse of the Treaty of Peace with France TO THE ORDER OF THE KING AND OF HIS NOBLES And â—6 Edw. 3. n. 6. The LORDS only advise the King touching Truce or War with Scotland In the first Parliament of 15 Edw. 3. n. 11. the Commons having delivered in divers Articles concerning the redresse of grievances and publick affaires to the King prayed that unto the Wednesday ensuing their Articles may be committed to certain BISHOPS BARONS AND OTHER WISE MEN there named BY THEM TO BE AMENDED which the King granted whereas the Lords exhibited their Articles 〈◊〉 to the King and the Bishops their Articles apart in this Parliament and protested that they ought not to answer but in open Parliament BY AND WITH THEIR PEERES without joyning with the Commons num 6 7 18 c. 26 27 35 37. which course they held in most following Parliaments I shall conclude with one President more most suitable to the present deplorable condition of our State and worthy imitation In the Parliament of 5 Hen. 4. Rot. Parl. num 9. 10. The Commons having presented to the King in Parliament divers grievances in the ill managing of His Revenues the decay of His Castles Houses and Parks the great poverty and pressures of His Subjects and danger of the Enemies thereupon they most intirely and cordially prayed the King to consider the eminent perils of all parts of the Realm by reason of the Enemies and Rebels of which they had news from day to day and that as the case then stood if such mischiefs were not speedily and graciously remedied and reformed in this Parliament it might fall out upon sodain arivall of Enemies or by some other means this Parliament must of necessity be departed from by all and dissolved so as the Lords and Commons should never re-assemble again to redresse the said Mischiefs and others which God defend And therefore that it would please the King considering the HIGH WISDOMES AND DISCRETIONS OF THE LORDS and that THEY HAD KNOWLEDGE OF MANY PERILS AND MATTERS which could not be so clearly known to the King that he would now in this present Parliament charge ALL HIS LORDS Spirituall and Temporall upon the faith they principally owe to God and the faith Homage and Allegiance which they owe to our Lord the King himself for the aid and salvation of themselves and of all the Realm that the said Lords WOULD COUNSEL and shew Him their advice and WHOLSOME COUNSEL IN THIS BEHALF SEVERALLY INTIRELY without dissimulation or adulation having regard to the great mischiefs and necessity aforesaid And thereupon our Lord the King most graciously with His own mouth in full Parliament charged and commanded as well the Lords as the said Commons that they should do their diligence and shew unto Him their good and wholsome Counsels in this behalf for the aid of Him and all His Realm And after the said Commons in the same Parliament made request to the said Lords that seeing the King had given them such a charge and command and that in so high a manner of Record that they would do their diligence well and loyally to persever the same without any courtesie made between them in any manner as they would answer before the most High and before our Lord the King and to all the Realm in time to come and that the Commons themselves thereupon would do the like on their party Which if both Lords and Commons would now cordially and sincerely promise and ingage to do without self-ends or interests we might see our Church and Kingdome speedily setled in a peaceable and happy condition In brief the Lords in the very Writ touching Knights and Burgesses are stiled The Common Councell of the Kingdome and the Knights Citizens and Burgesses are called to inform and assent to that which they and their King shall Ordain and 5 Ric. 2. Parl. 2. n. 3. 6 R. 2. n. 8 9 11 26.
nor yet of a Minister as the Objectors falsly pretend who take it for granted as an infallible truth and Maxime of State for then it will follow that neither n Exod 3. 4. 7. Moses o Deut. 3. 28. Nuâ— 27. 16. 〈◊〉 23. Deut. 31. ◠〈◊〉 9. 14. 23. c. 34. 9. Ioshâ—â— Joshua p Neâ— c. 2. c. Nehemiah q 1 Sam 9. 16. c. 10. 1. 21. Saul r Psal 78. 70 71 72. 1 Sam. 1â— 2 Sam. 7 8. David Å¿ 1 Chron. 23. 1. c. 28. 5 6. 2 Chron. 1. 8. Solomon nor any of the t 2 Chron. 14 1. c. 17. 1. c. 28. 27. c. 29. 1. pious Kings of Juda who came to the Crown by Gods immediate designation or by descent succession were just lawful Governours or Kings which none dare aver That the v Num. 11. 16 17. 24 25 26 27. 70. Elders the Princes x 1 Chron. 18. 15 16 17. c. 26. 29 30 31 32 c. 27. c. 28. 1. 2 Chron. 19. 5. 〈◊〉 7. Nobles chief Captains Iudges and Rulers among the Jewes under Moses and their Kings and other Governours and the Jewish Sanhedrin were no lawfull Judges Magistrates Counsellers of State or Members of their generall Congregations Parliaments and assemblies since we read of none of them chosen by the people but onely designed by God himself or made and created such by Kings and Governours and by them called and summoned to their generall congregations assemblies and judicatures as the premised texts and others evidence That y Gen. 40. 40 41 c. Exod. 18. 25. Psal 105. 21. Acts 8. 10. Joseph z Esther 8. 10. Mordecai a Dan. 2. 48 49. 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 made a Levite Priest High-Priest or Prophet by the peoples call but by b Exod. 40. Numb 1 3. 4 1 Chron. c. 23. c. â—5 29 26. 〈◊〉 2â— 13. Heb. 5. â— descent and succession in the selfesame Tribe or by Gods own immediate call and appointment as * Mat. 3. Iohn Baptist â‚ Isa 61. 1. c. 65. 1 Ioh. 20. 21. Heb. 5. 4 5. Christ the * Mar 10. Luke 9. 10. Mar. 28. 19 20. Iohn 20. 21. 1 Cor. 1. 17. Gal. 1. 1. Acts 8. 5. 14 15. â— Case Polit. l. 3. c. 2. Bodâ— de Repub. l. 2. c. 2 3. Ioan Mariana de Rege Regum Instit l. 1. c. 3 4. Apostles the 70. Disciples and others under the Gospell were made and created Ministers Apostles Evangelists and preaching Elders without the peoples call and yet our opposites dare not deny their Ministery and Apostleship to be lawfull being not of men but of Gods and Christs own call without the peoples Secondly then it will follow that all Hereditary Kingdomes which g Polititians and Divines generally hold the best of Governments all Patents and Commissions in all Empires Kingdomes and States of the world creating Princes Dukes Earls Lords and such like Titles of Honour whereby they are inabled in all Christian Kingdomes to sit in their Parliaments and Assemblies of State and for creating Privy Counsellors Judges Justices and other Magistrates are void null and illegall and so all the Lawes Orders Ordinances made Acts done and Judgements given by them d See M. Seldens Titles of Honor. are void and erroneous because they were not chosen and called to these places and publike Counsells and Judicatures by the people but by the Emperours Kings and Supreme Governours of State and what a confusion such a Paradox as this would breed in all our Kingdomes and in all States and Kingdomes in the world let wise men consider and those fools too who make this Objection 4. Fourthly if there be no lawfull Authority in any State but from the Peoples immediate election then it will necessarily follow that Sir Thomas Fairâ—ax is no lawfull Generall his Officers and Councell of Warre no lawfull Officers or Councell and Colonell and Lievtenant-Colonell Lilburne no lawfull Colonell or Lievtenant Colonell and ought not to use or retaine these titles as they do because none of them were called and chosen to those places by the People but made such by Commission from the Parliament 5. Fifthly This paradox of theirs touching the peoples choice and call to inable Peers to sit in Parliament or beare any office of Magistracy or Judicature is warranted by no law of God in old or new Testament both which contradict it by no Lawes or Statutes of these Kingdomes or Nations which absolutely disclaime it and enact the contrary by no prescription custome or usage which are all against it by no Originall Law of Nature which as all e Arist Polit. l. 1. Bodin de Repub. l. 1. c. 2. 3 4 5. D. Fâ—eld of the Church l. 1. c. 1 2. Polititians and Divines assert and the Scripture manifests gives every Father a Magisteriall and Judiciall rule and power over his children progeny Family and makes him a King Prince Lord over them without either their choice or call the Father and first-borne of the family being both the King Prince and Lord over it and Priest to it from the Creation till the Law was given as is generally acknowledged by all Divines 6. Sixthly I answer that a particular explicit actuall choice and election by the people of any to be Kings Magistrates Judges Ministers Peeres or Members of Parliament is neither necessary nor convenient to make them just and lawfull except onely when the Lawes of God of Nature of Nations or the Kingdome expresly require it but onely a generall implicit or tacit consent especially when the ancient Lawes of the Land continuing still in full force and the custome of the Kingdome time out of mind requires no such ceremony of the peoples particular election or call in which case the peoples dissent is of no validity till that Law custome be repealed by general consent of the King Lords and Commons in Parliament * Seldens Titles of Honour part 2. Cook 4. Instit c. â— Cambdens â—â—it Now the ancient Lawes Statutes Customs of the Kingdom enable all Lords who are Peers Barons of the Realm to sit in Parliament when ever summoned to it by the Kings Writ without any election of the people and if the Lawes and Customes of the Realme were that the King himselfe might call two Knights Citizens and Burgesses to Parliament such as himselfe should nominate in his writ out of every County City and Burrough without the Freeholders Citizens and Burgesses election of them by a common agreement and consent to such a Law and usage made by their Ancestors and submited and consented to for some ages without repeale this Law and Custome were sufficient
to make such Knights Citizens and Burgesses lawfull Members of Parliament and to represent the Commons of England without any election of the people the Laws made by our Ancestors in Parliament See Littleton Fitz-Herbert Brut. Ashly Tit. VVarranty Obligat Covenant c. obliging their posterity whiles unrepealed as well as their Warranties Obligations Statutes Feofements Morgages and alienations of their Lands as the Objectors must acknowledge therefore they must of necessity grant their present sitting voting and judging too in Parliament to be lawfull because thus warranted by the Lawes and Customes of the Realme 4. If all Power in Government and right of sitting judging and making Lawes or Ordinances in Parliament be founded upon the immediate free election of all those that are to be Governed and of necessity that all those who are to be subject and they ought to be represented by those who have power in Government the Summe of f See M. Edwards his Gangraena part 3. p. 142. to 162. Lilburnes Overtons and the Levellers reasons against the Lords Iurisdiction then it will of necessity follow that the orders Votes Ordinances and Lawes made by or consented to by the Knights Citizens and Burgesses in Parliament ought not to bind any Ministers Women Children Infants Servants Strangers Freeholders Citizens Burgesses Artificers or others who cannot well or properly be represented but by persons of their owne sex degrees trades and callings and so every sex trade calling in each County and Corporation in England should send Members of their own to Parliament to represent them but only such Freeholders and Burgesses who had voices in and gave free consent to their Elections not any who have no voyces by Law or dissented from those elected and returned yea then it will necessarly follow that those Counties Cities and Burroughs whose Members have been injuriously impeached suspended driven away or thrust out of the House of Commons by the objectors and the Armies practise and violence contrary to all former presidents are absolutely free exempted and not bound by any Votes or Ordinances made or taxes imposed by the Commons House because they have no Members to represent them residing in Parliament and that those Counties and Burroughs whose Knights and Burgesses are dead or absent are no wayes obliged by any Votes Ordinances or Grants in Parliament And then how few in the Kingdome will or ought to yeeld obedience to any the Acts Ordinances or Votes of this present Parliament or to any Mayors Sheriffes Aldermen or Heads of Houses made by their Votes and Authority usually made by election heretofore or to any Iudges Justices Governours Generalls Captains or other Military Officers made by their Commission or appointment without the generality of the peoples Votes or consent especially when above halfe or three full parts of the Members were absent or driven from both Houses by the Objectors violence and menaces These Answers premised I shall now proceed to the proofe of the Lords undeniable Right and Authority to sit Vote and give Judgement in Parliament though not actually elected and called by the people as Knights and Burgesses are 1. It is evident by the Histories Republikes of most ancient and modern Kingdomes and Republikes in the world that their Princes Nobles Peers and great Officers of State have by the Originall Fundamentall Lawes and Institutions by right of their very g 31. H. 8 c. 10 See M. Seldens Titles of Honor Cassanaeus Catalogus Gloriae Mundi Alanso Lopez in Nobiliario and others who write of Nobility Cambd. Brit. of the Noâ—â—lity and Courts of Iustice in England Nobility Peerage and great Offices without any particular election of the people a just right and title to sit consult Vote enact Lawes and give Iudgement in all their Generall Assemblies of State Parliaments Senates Diets Councells as might be mainfested by particular instances in the Kingdomes Republikes Parliaments Diets and Generall Assemblies of the Iewes Egyptians Grecians Romans Persians Ethiopians Germans French Goths Vandalls Hungarians Bohemians Polonians Russians Swedes Scythians Tartars Moores Indians Spaniards Portugalls Danes Saxons Scots Irish and many others And to deny the like priviledge to our English Peers and Nobles which all Nobles Peers in all other Kingdomes Nations Republikes anciently have done and yet doe constantly enjoy without exceptions or dispute is a grosse unjury injustice and over-sight yea a great dishonor both to our Nobility and Nation Secondly By and in the very primitive constitution of our English Parliaments it was unanimously agreed by the Kingdomes and peoples generall consents that our Parliaments should be constituted and made up not of Knights and Burgisses onely elected by * E. H 6. c. 7. 10. H. 6. c. 2. 32 H. 6 c. 15. Crumpton Jurisdict p. 1. 2. 3. Cooke 4 Instit c. 1. Freeholders and Burgesses not by the generality of the vulgar people who would now claime and usurpe this right of election but likewise of the King the Supream Member by whose h Cooke Instit c. 1. n. 1. 10. Modus Tenendi Parliamentum Crompton Jurisdiction of Courts Tit. Parliament M. Seldens Tit. of Honour par 2. c. 5. writs the Parliaments were to be sommoned and by the Lords Peers Barons ecclesiasticall and civill and great Officers of the Realme who ought of right to sit vote make Lawes and give Judgement in Parliament by vertue of their Peerage Baronries and Offices without any election of the people the Commons themselves being no Parliament judicatory or Law-givers alone without the King and Lords as Modus tenendi Parliamentorum Sir Edward Cooke in his 4. Institutes ch 1. Mr. Seldens Titles of Honor part 2. ch 5. Vowell Camden Sir Thomas Smith Cowell Minshaw Crompton with others who have written of our English Parliaments assert and all our Parliament Rolls Statutes and i 33. H. 6. 16. Br. Parliam 4. 39. E 3. 7. 35. 11. H. 7 27. Br Parl. 107. 4. H. 7. 18. 7 H. 7. 14 Crumptons Iurisd f. 9. Co. 4. Institutes n 15 35. Fit f. 20. Dyer 92. Iudge Huttons Argument of Mr. Hamdens case p 32. 33. Law-bookes resolve without whose threefold concurrent assents there is or can be no Act of Parliament made Thirdly This right of theirs is confirmed by prescription and custome from the very first beginning of Parliaments in this Kingdome till this present their being no one president to be found in History or Record of any one Parliament held in this Island since it was a Kingdome without the King personally or representatively present by a Protector Custos or Regni Commissioners as he ought to be or without Lords and Peeres anciently stiled Aldermen Heretockes Senators Wisemen Nobles Princes Earles Counts Dukes c. by our Historians who make mention of their resorting to fitting voting and judging in our Parliaments Generall Assemblies and Councels under those Titles without the peoples Election long before the Conquerors time in the anciented Parliaments and Councels we read of
at all because some of the Lords were not come by reason of foule weather shortnesse of warning or other publike imployments all their personall presence in Parliament being reputed necessary and expedient And 20. R. 2. N. 8. The Commons themselves in Parliament required the King to SEND FOR SUCH BISHOPS and LORDS WHO WERE ABSENT to come to the Parliament before they would consult of what the Chancellor propounded to them in the Kings name and behalfe to consider of To recite no more ancient Presidents in the Parliament of 2. Caroli the Earle of Arundell sitting in the Parliament being committed by the King to the Tower of London about his sonnes marriage May 25 1626. without the Houses privity and consent whereby their Priviledges were infringed and the House deprived of one of their Members presence thereupon the Houses of Peeres adjourned themselves on the 25 and 26. of May without doing any thing and upon the Kings refusall to release him they adjourned from May 26. till June 2. refusing to sit and so that Parliament disolved in discontent his imprisonment in this case being a breach of Priviledge contrary to Magna Charta And not long after the beginning of this Parliament upon the Kings accusation and impeachment of the Lord Kimbolton and the five Members of the Commons House * An Exact collection part 1. both Houses adjourned and sate not as Houses till they had received satisfaction and restitution of those Members as the Journals of both Houses manifest it being an high breach of their Priviledges contrary to the Great Charter If then the Kings bare not summoning of some Peares to Parliament who ought to sit there by their right of Perage or impeaching or imprisoning any Peere unjustly to disable them to sit personally in Parliament be a breach of the fundamentall Lawes of the Realme and of Magna Charta it selfe confirmed in above 40. succeeding Parliaments then the Lords right to sit vote and Judge in Parliament is as firme and indisputable as Magna Charta can make it and consented to and confirmed by all the Commons people and Parliaments of England that ever consented to Magna Charta though they be not eligiable every Parliament by the freeholders people as Knights and Burgesses ought to be and to deny this birth-right and Priviledge of theirs is to deny Magna Charta it selfe and this present Parliaments Declarations and proceedings in the case of the Lord Kimbolton a member of the House of Peers Fifthly The ancient Treatise intituled * See Cooke â— Justit p. 12. for the Antiquity and for the Authority of this Treatise The manner of holding Parliaments in England in Edward the Confessors time before the Conquest rehearsed afterwards before William the Conqueror by the discreet men of the Kingdome and by himselfe approved and used in his time and in the times of his Successors Kings of England if the Title be true and the Treatise so ancient as many now take it to be determines thus of the Kings and Lords right to be personally present in all Parliaments The King IS bound by all meanes possible TO BE PRESENT AT THE PARLIAMENT unlesse he be detained or let there from by BODILY SICKNESSE and then he may keep his Chamber yet so THAT HELYE NOT WITHOUT THE MANOUR OR TOWNE WHERE THE PARLIAMENT IS HELD and then he ougth to send for twelve persons of the greatest and best of them that are summoned to the Parliament that is two Bishops two EARLES two BARONS two Knights of the Shire two Burgesses and two Citizens to looke upon his person to testifie and witnesse his estate and in their presence he ought to make a Commission and give Authority to the Archbishops of the Peace the steward of England and Cheife Justice that they joyntly and severally should begin the Parliament and continue the same in his name expresse mention being made in that Commission of the cause of his absence then which ought to suffice and admonish the OTHER NOBLES cheife men in the Parliament together with the evident testimony of the twelve Peers of theirs The reason is BECAVSE THERE WAS WONT TO BE A CRY OR MURMVR IN THE PARLIAMENT FOR THE KINGS ABSENCE BECAUSE HIS ABSENCE IS HURTFULL and DANGEROUS TO THE WHOLE COMMONALTY OF THE PARLIAMENT and KINGDOME WHEN THE KING SHALL BE ABSENT FROM HIS PARLIAMENT Neither indeed OUGHT OR MAY HE BE ABSENT BUT ONELY IN THE CASE AFORESAID After which it followes The Archbishops Bishops and other cheife of the Clergy ought to be summoned to come to the Parliament and Also EVERY EARLE and BARON and their PEERS OUGHT TO BE SUMMONED and COME TO THE PARLIAMENT c. Touching the beginning of the Parliament The Lord the King shall sit in the miâ—st of the great bench and is bound to be present in the first and last day of Parliament And the Chancellors Treasurer and Barons of the Eschequer and justices were wont to record the defaults made in Parliament according to the order following In the third day of the Parliament the Barons of the Cinqueports shall be called and after wards the BARONS of England after them the EARLES Whereupon if the Barons of the Cinqueports be not come the Barony from whence they are shall be amerced at an hundred markes and an Earle at one hundred pounds After the same manner it must be done to those who are Peers to Earles and Barons After which it relates the manner of place of the Earles Barons and Peers in Parliament Then addes The Parliament may be held and OVGHT every day to begin at one of the clocke in the afternoone at which time THE KING IS TO BE PRESENT AT THE PARLIAMENT and ALL THE PEERS OF THE KINGDOME None of all the Peers of the Parliament MAY OR OUGHT TO DEPART alone from the Parliament unlesse he have obtained and that in full Parliament leave from the KING and of ALL HIS PEERS so to doe and that with all there be a remembrance kept in the Parliament roll of such leave and Liberty granted And if any of the Peers during the terme of the Parliament shal be sick or weake so as he is not able to come to the Parliament then he ought three dayes together send such as may excuse him to the Parliament or else two Peers must go and view him and if they finde him sicke then he may make a Proxy Of the Parliament the King is the Head the beginning and ending So this ancient Treatise The Statute of 5. R. 2. Parl. 2. ch 4. enacts by COMMAND of the King and ASSENT of the Prelates LORDS and COMMONS in Parliament That all and singular persons and Commonalties which from henceforth shall have the Summons of the Parliament shall come from henceforth to the Parliament in the manner AS THEY BE bound TO DOE and hath been ACCVSTOMED within the Realme of England OF OLD TIME And every person of the said Realme which from henceforth shall have the
Viscounts and Barons who sit there by reason of their dignities which they hold by discent or creation And likewise EVERY ONE OF THESE being of full age OUGHT TO HAVE a writ of summons EX DEBITO JUSTITIAE The third estate are the Commons of the Realme whereof there bee Knights of Shires or Counties Citizens of Cities Burgesses of Burro All which are respectively by the Shires or Counties Cities Buroughs by force of the Kings writ Ex debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realme and trusted for them and are in number at this time 493. Headed And it is observed that when there is best appeareance there is the best succession in Parliament At the Parliament holden in the 7. yeare of H. 5. holden before the Duke of Bedford Guardian of England of the Lords Spirituall Temporall there appeared but 30. in all at which Parliament there was but one Act of Parliament passed and that of no great weight In An. 50. H. 3. ALL THE LORDS APPEARED IN PERSON and not one by Proxy at which Parliament as appeareth by the Parliament Roll so many excellent things were sped and done that it was called Bonum Parliamentum And the King and these three estates are the great Corporation or the body of the Kingdome doe sit in two Houses of this Court of Parliament the King is Caput Principium Finis The Parliament cannot begin but by the Royall Presence of the King either in person or representation by a Guardian of England or Commissioners both of them appointed under the great Seale of England c. And 42. E. 3. Rot. Parl. num 7. It is declared by the Lords and Commons in full Parliament upon demand made of them on the behalfe of the King That they could not assent to any thing in Parliament that tended to the disinherison of the King and his Crowne whereunto they were sworne And p. 35. he hath this speciall observation That it is oâ—served by ancient Parliament men out of Record that Parliaments have not succeeded well in five cases First when the King hath beene in diffeâ—ence with his Lords and with his Commons Secondly When any of the great Lords were at variance betweene themselves Thirdly When there was no good correspondence between the Lords and Commons Fourthly When there was no vnity between the Commons themselves in all which our present Parliament is now most unhappy and so like to miscarry and succeede very ill Fiftly When there was no preparation for the Parliament before it began every of which hee manifests by particular instances From all these and sundry z Judge Hâ—â—rons Argument of Mr. Hampdens case p. 32. 33. Daltons office of Sherriffs other Authorities it is most evident transparent That both the King himselfe and Lords ought of right to be present in Parliament and ever have been so as well as the Commons and neither of them to be excluded since they all make up but one Parliament ought of right and duty to be present at and no Lords and Commons to depart from it without speciall leave under paine of amercement and other penalties because no binding Law can be passed without their joynt consents And that the Commons alone are no more a Parliament of themselves without the King and Lords than the Common Councell of London are an intire Corporation without the Lord Major Aldermen or the Covent without the Abbot the Chapter without the Deane or the leggs or belly a perfect man without the head or neck Sixtly The ancient and constant forme of endorsing Bills in Parliament begun in the Commons House in all Parliaments since the Houses first divided 33. H. 6. 17. Brooke Parliament 4 Cromptons jurisdiction of Courts f. 8. Mr. Hackuel of the manner of passing Bills in Parliament unanswerably demonstrates the Commons of Englands acknowledgment of the Lords right to fit vote assent or disassent to Bills in Parliament viz. SOIT'BAYLE A SEIGNEURS let it be delivered or sent up to the Lords Yea the Commons constant sending up of their own Members with Messages to the Lords and receiving Messages from them and intertaining frequent conferences with them in matters where their opinions differ in which conferences the Lords usually adhere to their dissents unlesse the Commons giveth emsatisfaction and convince them and the Lords oft times convince the Commons so farre as to consent to their alterations of Bills Ordinances Votes and oft to lay them quite afide is an unquestionable argument of their Right to sit and vote in Parliament and of their Negative Voyce too All which would prove but a meer absurdity and superfluity if the Commons in all ages and now too were not convinced that the Lords had as good right to sit and vote in Parliament and a Negative and dissenting voyce as well as they never once questioned or doubted till within this yeare or two by some seditious Disciples of Lilburnes and Overtons entering who endeavoured to evade their justice on them Seventhly This just Right of the Lords is expresly and notably confirmed by all the Commons of England in the Parliament of 31. H. 8. c. 10. concerning the placing and sitting of the Lords and Great Officers of State in the Parliament House made by the Commons consent It being in vaine to make such a Law continuing still till this very day both in force and use if they had no lawfull right to fit and vote in Parliament because they are not elective as Knights and Burgesses are And by the Statute of 39. H. 6. c. 1. made at the Commons own Petition to repeale the Parliament and all proceedings of it held at Coventry the yeare before by practice of some seditious persons of purpose to destroy some of the great Nobles faithfull and Lawfull Lords and Estates meerly out of malice and greedy and unsatiable coveteousnesse to possesse themselves of their lands possessions Offices and goods whereby many great Injuries Enormities and Inconveniences well nigh to the ruine decay and universall subvertion of the Kingdome ensued The very designe of our Lilburnists Sectaries and Levellers now out of particular malice and coveteousnesse to share the Lords and all rich Commoners lands and estates between them being poore and indigent covetuous people for the most part scarce forty of them worth one groat at least before these times This apparent Right of theirs is undeniably ratified and acknowledged not only by the very words of the writs by which the Lords themselves are summoned to the Parliament but even of the writs for election of Knights and Burgesses the forme and substance whereof are ancient and can receive NO ALTERATION NOR ADDITION but by Act of Parliament as b Institutes 4 p. 10. Sir Edward Cooke resolves By this writ the Prelates Nobles and others of the Realme are summoned to the Parliament there to treat and conferre with the King
of the arduous and â—rgent affaires of the Realme and Church of England as the first clause of the writ Carolus c. quia c. pro quibusdam arduis 〈◊〉 negotiis Nos Statum defensionem Regni nostri Angliae â—â—â—lâ—siae Anglicanae concernent quiddam Parliamentum nostrum teneri â—â—â—â—â—avimus ibidem cum Praelatis MAGNATIBUS PROCERIBUS dicti Regni nostri COLLOQUIUM HABERIET TRACTARE Tibi praecipimus And the Commons are summoned to performe and consent to those things which shall there happen to be ordained by this Com. Coun. of the Kingdom c. And if they are thus summoned not to treat amongst themselves as an independent and intire Parliament but to confirme and consent to what the King Prelates Great men and Peers the Common Councell of the Realm shall ordaine about such affaires as they must of necessity admit the King Lords and Peers to be altogether as essentiall yea more principall eminent Members of Parliament though not elective as the Knights Burgesses who are but summoned to consent to performe what shall happen there by common advise to ordaine or at least to consult and advise with them as their inferiors not to over-rule them as their superiors and the only Supream power in the Kingdom and if they will totally exclude either King or Lords from Parliament who are distinct essentiall Members of it as well as the Commons and have always been so reputed untill now the Commons may sit alone as Cyphers but not as a Parliament to vote or act any thing that is binding to the people since though in extraordinary cases for the saving of the Kingdome they may securely use extraordinary meanes proceedings yet regularly they are no more a Parliament without the King Lords theÌ„ the King or Lords alone are a Parliament without the Commons or the trunke of a man a perfect man without a head or shoulders If * Dyer 61. 62. Cooke 5 Report f. 90. 91. 94. 120. 121. v. 1. Rep. 111. 173 19. R. 8. 9. Br. executors 3. 15 11. 7. 12. 3. be joyntly impowred or commissioned to doe any act by Commission Deed or Warrant any one or two of them can do nothing without the 3d. If many be in Commission of the Peace Sewers or the like and three of the Quorum joyntly act there joyntly if any one of the three be absent all the rest can do nothing In Parliament it selfe If either House appoint a Committee of 3. 5. or 7. to examine act or execute any thing if but one of this number be absent or put out the rest can doe nothing that is legall or valid even by course of Parliament neither can either House sit and vote as a House unlesse there be so many Members present as by the Law and custome of Parliament will make up an House as every mans experience can informe him If these Levellers then will absolutely cut off or exclude the King or Lords from the Parliament they absolutely null and dissolve it and the Act â—or câ—ntinuing this Parliament cannot make nor continue the Commons alone together as a Parliament no more then the Lords or King alone without the Commons the King or either House alone being no Parliament but both conjoyned and enlivened with the Kings personall or representative presence The cutting of the head alone or of the head and shoulders altogether destroyes and kills the body Politicke and Parliament as well as the body naturall If the King dies or resignes his Crowne or be deposed the Parliament thereby is actually dissolved as it was resolved in the Parliament of 1. H. 4. n. 1. 2. 3. and 4. F. 4. 44. And so if the Lords or Commons dissolve and leave their House without any adjournment the Parliament is thereby dissolved as the forecited presidents and the latter clause of the writ for the election of Knights and Burgesses manifests And a new kind of Parliament consisting onely of Commoners when the old one onely within the Act for continuing this Parliament made up both of King Lords and Commons is dissolved neither will or can be supported or warranted by the letter or intention of this Law Ninthly All the Petitions of the Commons in all Parliaments since the Conquest to the King or Peeres for their redresse of grivances recorded in many ancient Parliament Roules All Acts of Parliament extant usually runne in this forme * Cooke 4. Instit c. 1. The King with the assent of the Lords Spirituall and Temporall in Parliament hath ordained and be it enacted by the Kings most Excellent Majesty the Lords Spirituall and temporall in this present Parliament assembled The famous Petition of Right 3. Car. so much insisted on beginning thus Humbly shew unto our Soveraigne Lord the King the Lords spirituall and Temporall and Commons in Parliament assembled thus answered by the King Let right be done as is desired The Act of continuing this Parliament made by the King and Lords as well as by the Commons who never intended to exclude themselves out of this Parliament by that Act or that it should continue if either of them were quite dismembred from it with all Acts and Ordinances since Yea the Protestation Solemne League and Covenant taken by the Commons and Lords prescribed by them to all others throughout the three Kingdomes which couple the Lords and Commons alwaies together neither of them alone being able to make any binding Ordinance to the subjects unlesse they both concurre no more than one Member alone of either House can make a House and ranck the Lords alwaies before the Commons and the King before them both so firmely hold forth establish the Lords and Kings undoubted Right to sit and Vote in Parliament and decry this new mounted Monopoly of a sole Parliament of Commons without King or Lords that absolute Soveraigne Power these new Lights have spied out and set up for them in Vtopia that impudency it selfe would blush to vent such mad absurd irrationall Frenzies and Paradoxes as these crackbrain'd persons dare to publish and they may with as much truth reason argue that one man is three that the Leggs and trunke of a man are a perfect man without head necke armes and shoulders or that the Leggs and Body are and ought to be placed above the head neck and shoulders as that the House of Commons are or ought to be an entire Parliament the sole Legislative Power the onely Supreame Authority paramount both King Lords who must not have now so much as a Negative voyce to deny or contradict any of the Commons Votes or Ordinances though never so rash unjust dishonorable prejudiciall or dangerous to the whole Kingdome Tenthly These very Sectaries and Levellers themselves have acknowledged and asserted this Right of Power of the Lords all along this Parliament till of late c See innocency and truth justified p. 74. 75. Mr. Edwards Gangraena part
and Parl. 2. R. 2. n. 7 9. they are called the GREAT COUNCEL OF LORDS by waging of their extraordinary wisdome and abilities And therefore most fit to sit vote and judge in Parliament Secondly The Lords and great Officers of the Realme as such were ever reputed persons of greatest Valour Courage Power in regard of their great interests Estates allies and retainers and so best able to withstand and redresse all publike grievances and enchroachments of the King upon their owne and the peoples Liberties in defence whereof they have in ancient times been alwayes most ready and active to spend not only their estates but blood and lives for wherewith they have redeemed and preserved those Liberties and Freedomes we now enjoy and contend for And in this regard our ancesters in point of wisdome policy and right thought meet that they should alwayes be sommoned to and bear chief sway in our Parliaments in respect of their Peerage Power and Nobility only without the peoples election This reason of their sitting in Parliament we find expresly recorded in Bracton l. 2. c. 16. fol. 34. and in Fleta l. 1. c. 17. The King say they hath a Superiour namely God also the Law by which He is made a King likewise His Count to wit THE EARLS BARONS because they are called Counts as being the KINGS FELLOWS and he who hath a Fellow hath A MASTER And therefore if the King shal be without a bridle that is without a Law debent ei fraenum imponere THEY OUGHT TO IMPOSE A BRIDLE ON HIM c. which the Commons being persons of lesse power and interest were unable to do Andrew Horn in his Mirrour of Justice ch 1. § 2 3. renders the like reason In all the contest and Wars between K. John Hen. 3. Edw. 2. Rich. 2. concerning Magna Charta and the Liberties of the Subjects the Lords Barons were the Ring-leaders and chief Opposers of these Kings Usurpations and Encroachments on the people as all our g See Mat. Paris Matthew Westminster Walsingham Huntingdon Holings head Polythronicon Coxton Grimsâ—on Stow Speed Trussell Baker Martin Daniel How and the Soveraign Power of Parliaments Kingdomes part 1 2. 3. 10 R. 2. c. 1 2. 11 R. 2. c. 1. to 7. 21 R. 4. c. 7. to 13. â— H. 4. c. 2. for proof hereof Histories and Records relate whence they stile the Wars in their times THE BARONS WARS and before this the Nobles were the principall Actors in resisting the Tyranny of K. Sigebert and K. Bernard and disthroning them for their misdemeanors as is clear by Mat. Westminster in his Flores Historiarum an 756. 758. To give some brief hints to clear this truth An. Dom. 1214. In the 16. year of h Mat. Paris Hist Angl. p. 233. to 282. Daniel p. 140. to 144. Speed p. 558. to 567. K. John a Parliament held at Pauls July 16. the Charter of Liberties granted to the people by K. Hen. 1. being read and confirmed THE BARONS swore in the Arch-bishops presence that if need were they would spend thier blood And afterwards at St. Edmonds Bury the BARONS swore upon the High Altar That if K. John refused to confirm and restore to them those Liberties the Rights of the Kingdom they would make War upon Him and withdraw themselves from His allegiance till he had ratified them all by His Charter under Seal Which they accordingly performed Tota Angliae Nobilitas in unum collecta all the NOBILITY OF ENGLAND COLLECTED INTO ONE appeared in this defence of their own and the peoples Rights and Liberties against the King whereupon it was afterwards enacted That there should be 25 BARONS chosen by the LORDS not Commons who should to their utmost power cause the Great Charter confirmed by K. John to be duly observed That if either the King or His Justicier should transgresse the same or offend in any one Article 4. of the said BARONS should immediately repaire to Him and require redresse of the same without delay which if not done within forty daies after that then the said 4. BARONS and the rest should distrain and seize upon the Kings Castles Lands and Goods till amends was made according to their arbitration Such confidence and power was then reposed in the BARONS alone i Hist Angl. p. 233. Mat. Paris speaking of the death of Geoffry Fitz-Peeter one of the greatest Peers of that age writes thus of him This year an 1214. Geoffry Fitz-Peeter Justiciary of all England a man of great power and authority TO THE GREATEST DETRIMENT OF THE KINGDOM ended his daies the 2 day of Octob. ERAT autem FIRMISSIMA REGNI COLVMNA for he was the most firm pillar of the Kingdom as being a Nobleman expert in the Laws furnished with treasures rents and all sort of goods and confederated to all the great men of England by blood or friendship whence the King without love did fear him above all men for he governed the raynes of the Kingdom Whereupon after his death England was become like a ship in a storm without an helm The beginning of which tempest was the death of Herbert Arch-bishop of Canterbury a magnificent and faithfull man neither could England breath again after the death of these two When K. John heard of Fitz-Peeters death turning to those who sate about him He said By Gods feet now am I first King and Lord of England He had therefore from thenceforth more free power to break His Oaths and Covenants which He had made with the said Geoffry for the peoples Liberty and Kingdoms peace Such Pillars and Staies are great and stout Peers to a Kingdom Curb to tyrannicall Kings and therefore of meeâ— Right ought to have a place and voice in Parliaments for the very Kingdoms safety and welfare without the peoples election In the 43 year of K. Hen. 3. his reign k Mat. Paris p. 952. 953. Speed p. 636. Daniel p. 178. The Barons of England entred into a solemn Oath of Association upon the Evangelist to be faithful and diligent to reform the Kingdom of England hitherto by the counsel of wicked persons overmuch disordered and eff ectually to expel the Rebels and disturbers of the same which Oath they made Richard Earl of Cornwall to take as wel as others In these Barons wars for the Subjects Liberties many hundred Lords and Barons spent both their blood lives and estates and among others Simon Mulford Earl of Leicester the greatest Pillar of the Barons slain in the batail of Eusham of whoâ— l In his Continuation of Mat. Paris p. 968. Daniel p. 178. Râ—shing â—r thus writes Thus this magnificent Earl Simon ended his daies who not only bestowed his estate but his person and life also for relief of oppression of the poor for the asserting of Justice and the Right of the Realm In the 3 4 14 15. of K. Edw. 2. his raign the Barons were the chief Sticklers against Gaveston and the
Earle of Richmond adhered to the French against his Allegiance This Paradox therefore of his is against all Statutes Law-Books and Presidents whatsoever and Magna Charta it selfe There is onely one objection more of moment remaining Object 3. which is this If the House of Peers may without the Commons fine and imprison Commoners then if their fine and imprisonment be unjust and illegall they shall bee remedilesse there being no superiour Courr to appeale unto which will bee an intollerable slavery and grievance not to bee indured among free-borne people I answer Answ first that no injustice shall or ought to be presumed in the highest Court of Iustice till it bee apparantly 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 reveiw and new-hearing of the cause which they in justice neither will nor can deny and if they doe then the party grieved may petition the House ef Commons to interceed in his behalâ—e to the Peers for a rehearing but to discharge or 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 Euroâ—ous judgements in any inferiour Courts by writ of Errour but the Lords alone much lesse then the judgements of the Higher House of Peers which is parâ—mount them Though I conceive the House of Peers being the Superiour Authority and onely Iudicatory 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 mischiefe or a greater in admitting the House of Commons to bee judges of Commoners if there bee no appeale from them to the Lords in case their sentences bee illegall or unjust Thirdly This mischiefe is but rare Cook 4. instit p. 21 22. 4. â— 3. n. 14. Brook and Câ—nmptons jurisdiction and all Statutes for repealing former Parliaments Acts Iudgements or Attaindors 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 appeale from it or redresse of it but onely in the next Parliament that shall be summoned by petition And there is a greater greevance in ill publique Acts which concerne many then in â—â— judgements which concerne but one or two particular persons which yet cannot be repealed but by another Parliament as the Errours and decrees of one generall Counsell cannot bee rectified or reversed but by and till another Generall Counsell meets to doe it The same mischiefe was and is in Errous Iudgements and Decrees given in the Kings Bench Chancery and illegall commitments there for which there is no reliefe out of Parliament but towait till a Parliament be called Finally Hee that suffers by and under an unjust censure will have the comfort of a good Conscience to support him till he bee relieved and therefore he e Luk. â—1 19. 1 Pet 3. 14. He. â—0 32 33 34. must possesse his soule with Patience and rejoyce under his crosse and not raile murmur and play the Bedlam as Lilburne and his Companions Overton Larner and other Sectaries doe against our f â— Pet. 2. 15. to 21 c. 4. â—6 Iâ—â—â— 53. Saviours owne precept and example then God in his due season will g Psal 3â— 37. 46. relieve right them in a legall way whereas their impatience raving and libellous railing Pamphlets and Petitions not savouring of a Christian meek and humble spirit will but create them new troubles expose them unto just and heavy censures and rob them both of the comfort and glory of all their former suffrings against Law and Right Having answered these Objections I shall now earnestly desire all Lilburnes and Overtons seduced Disciples whether Members or others seriously to weigh and consider the premises that so they may see how grossely they have been deluded abused and misled by these two Ignes fatui or New-lights of the Law and Circumscribers of the Lords and Parliaments Iurisdictions which God knowes they no more know nor understand then Balams Asse as the premises demonstrate and I shall seriously adjure them if they have any grace shame or remainder of ingenuity left in them ingeniously to recant and publiquely to retract all their seditiouâ— rayling Libels and Scurrilous Invectives against the Lords undoubted Priviledges Iurisdiction and Iudicature which I have here unanswerably made good by undeniable Testimonies Histories Records and the grounds of policy and right reason which they are unable to gaine say to undeceive the many ignorant over-credulous poore soules they have corrupted and misled to the publique destrubance of our Kingdomes Peace Isay 9. 16. and let all their followers consider well of our Saviours caution Mat. 15. 14. If the blinde lead the blinde as these blinde-guides doe you both of them shall fall into the ditch and there perish together O consider therefore what I have here written to undeceive your judgements and reforme your practise consider that Dominion Principality Regality Magistracy and Nobility are founded in the very Law of Nature and Gods owne institution who subjected not onely all beasts and living creatures to the soveraigne Lordship of man to whom hee gave Dominion over them Gen. 1. 28 29. c. 9. 2 3 5. by vertue whereof men enjoy farre greater Priviledges then beasts but likewise one man unto another as i Gen. 3. 16. Exod. 20. 12. Ephes 5. 22. to 30. c. 6. 1. to 10. Rom. 13. 1 2 3. Tit. 3. 1. Col. 3. 20 22. 1 Pet. â— 13 14 18 c. 3. 15. Heb. 13. 17. Iosh 1. 16 17 18. Matth. 8 9. children to their Parents Wives to their Husbands Servants to their Masters Subjects to their Kings Princes Magistrates Souldiers to their Captaines Mariners to their Ship-Masters Schollers to their Tutors People to their Ministers which order if denied or disturbed will bring absolute and speedy confusion in all Families Corporations States Kingdomes Armies Garrisons Schooles Churches and dissolve all humane Societies which subsist by order and subordination onely to one another and seeing Monarchy Royalty Principality Nobility yea Titles of Honour and Nobility as Kings Princes Dukes Lords c. are as ancient almost as the world it selfe universally received approved among all Nations whatsoever under heaven See Mâ—stâ—r Seldens Titles of honour Dr. Huâ—â—â—â—es and others of Nobâ—lâ—ty Cataneâ—s Câ—ologus gloriae mundi and honoured with speciall Priviledges as not only all kâ— eminent Authours and experience manitest but these ensuing Scripture Texts Gen. 12. 15. c. 14. 1. to 10. c. 17. 6. 16. c. 20. 2. c. 21 22 23. c. 25. 16. c. 26. 1. 8. 26. c. 36. 15 16 17 18 29 30 31 to â—3 c. 9. 1 2. c. 41. 40 to 47. c. 47. 2â— 26. Exod. 1. 8. Numb 20. 14 c. c 21 1 1â— 21 33. c. 22. 7 10 14 15 40. c. 23. 17. c. 7. 2 3 10. c. 16. 2. c. 27. 2. c. 32. 2. Dent. 17. 14 15 16. Iosh 1. 16 17 18. c. 5. 1. c. 8. 9 10 11 12. Iudg. 9. 6 18. 1 Sam. 8. 5 6. 2 sam 11. 2. 1 Kin. 4. 34. c. 10 15 28 29. c. 20. 16. c. 23. 22. Iob. 3. 14. c. 36. 7. Psal 2. 2. 10. Ps 62. 12 14 29. Ps 72. 10. Ps 102. 15. Ps 136. 17 18. Ps 138. 4. Prov. 8. 15 16. Prov. 30. 31. Eccles 10 16 17. Iudg. 3. 5. c. 16. 8 1 Sam. 5. 11. c. 29. 2 6 7. Dan. 4. 36. c. 5. 9 10 23. c. 6. 27. Mat. 8. 9 Mar. 6. 21. c. 10. 42. 1 Cor. 8. 5. Rom. 61. 1 2 3 4. 1 Tim. 2. 1 2. Tit. 3. 1 2. 1 Pet. 2. 13 14 15. Acts 9. 27. which I wish our Sectaries Lovellers and Lilburnists to consider and study with the others forecited it will be a meer desperate folly and madnesse in any man to prove Antipodes to this instituiion of God Nature Nations to run quite contrary to all meu and to levell the head neck shoulders to the feet the tallect Cedars to the lowest Shruâ—s the roofe of every building to the foundation stones the Suâ—ne Moone Starres Heavens to the very Earth and center and even men themselves to the meanest beasts I shall therefore conclude with Saint Pauls serious admonition which these refractory persons have quite forgotten Rom. 13. 1 2 3. Let every soul be subject to the higher Power for there is no poâ—er but of God the powers that be are ordained of God whosoever therfore resisteth much more oppugneth abolisheth the Power resisteth oppugneth abolisheth THE ORDINANCE OF GOD and tâ—ey that resist oppugne or endeavour to abolish these powers shall receive to themselves DAMNATION for Rulers are not a terrour to good workes but to the evill and wherefore YE MVST NEEDS BE SVBIECT NOT ONLY FOR WRATH but also FOR CONSCIENCE SAKE And for this cause pay you tribute also for they are Gods Ministers attending continually on this very thing Render therefore to all such higher Powers their dues tribute to whom ribute custome to whom custome feare to whom feare HONOVR to whom HONOVR IS DUE which Saint Peter likewise seconds almost in the selfe-same words which you may doe well to peruse and study 1 Pet. 2. 12. to 20. and then you will never dare to question or dispute any more the Power Iudicatory Priviledges of the Right Honourable House of Peers much lesse to Revile and Libell against their persons as now you doe to the infinite Scandall of your Schismaticall faction and Religion it selfe which you professe onely in shew but deny in deed and practise FINIS
Spencers who seduced the King and oppressed the people and principall Pillars of our Laws Liberties as our m Walsingham Holingshed Daniel Speed Stow Grafton Fabian Baker Historians relate at large procured thâ—se ill Counsellours to be removed from the King even by force of Arms. In 10 11 22. of K. Rich. 2. the Lords were the principall opposers of the Kings ill Counsellours and Tyranny and protectors of the Laws and peoples Liberties to the losse of some of their lives hâ—ads and estates as our Statutes and Rolls of Parliament in those years and n Walsingham Trussle Fabian Holingshed Grafton Speed Stow. Historians witnesse whence Walsingham writing of the Duke of Gloucester's death murthered by the Kings command at Calice who was the principall Anti-royalist and head of all the Barons useth this expression Thus died this â—â—st of men the Son and Earl of a King in quo posita fuere spes solatium TOTIVS REGNI COMMVNITATIS in whom the hope and solace of the Common-wealth of the whole Kingdom were placed who resented his death so highly that in the Parl of 1 H. 4. Hall who had a hand in his murder was condemned and executed for a Traytor and his Head and Quarters hung up in severall places and K. Richard among other Articles deposed for causing him to be murthered Since then our Peâ—trs and Nobles have been alwaies persons of greatest valour power estate interest most able and forwards to preserve the Laws and peoples Liberties which they have upon all occasions defended with the hazard and losse of their Lives Liberties and Estates and upon this ground were thought meet by the wisdome of our Ancestors to enjoy this priviledge of sitting voting and judging in Parliament by vertue of their Peerage and Baronnies And since we must all acknowledge that the Lords were the chiefe instruments of calling this present Parliament and were therefore in the Act for Trienniall Parliaments principally intrusted to summon and hold all future Parliaments in the Kings and Lord Chancellours or Lord Keepers defaulâ—â— and were very active in suppressing the Star-chamber High-Commission Councel-Table Prelats and other grievances and those who first appeared in the Wars against the King and his party to the great encouragement of others witnesse the deceased Lord Generall Essex Brooke Bedford Stamford Willâ—ngh by Lincolne 〈◊〉 Manchester Roberts and others it would be the extremity of folly ingratitude and injustice to deny our Peeres this Priviledge and Honour now which their Ancestors have purchased at so deare a rate and a meanes to dis-ingage them for ever from the Commons and Republike for such an high dishonour and affront Thirdly our o See Master Sâ—ldâ—us Titles of Honour Part 2 chap. 5. and Coke 4. instit p. 1. Nobles are persons of greater Estates Families Fortunes then others and have more to keep and lose then other ordinary Commoners and therefore have greater interest in the Common-wealth and State-affaires then they And therefore our Ancestors thought it meet and just that they should have this priviledge among others above ordinary Commoners to be present in all our Parliaments by Writ onely and that of right ex debitâ— justitiae and not by election as Knights Citizens and Burgesses are being persons of meaner estate and quality and present in Parliament onely in the right of others who elect them not in their owne right as the Lords are whose estates anciently were far more worth then many whole Burroughes put together and their families retainers and followers far more in number And so their engagements to maintaine the Lawes Liberties and Properties of the Subject greater then inferiour mens Fourthly It is one principall property of Members of Parliament to be p Coke 4. Inst p. 3. constant stout inflexible and not to be bowed or turned from the right and publike good by feare favour promises rewards Now Peeres of noble birth and education and more generous heroick spirits then the vulgar sort of men are not so apt to be over-awed with regall threats terrified with menaces tempted with honours preferments and wealth which they already injoy in a higher proportion then others nor seduced with rewards and private ends from the common good and interest wherein their honour wealth and safety are imbarqued as ordinary Commoners and men of meaner ranke and fortunes as experience of former Ages and this present manifests Therefore it was thought just and reasonable by our Ancestors these Nobles in this regard should sit in Parliament in their owne rights * Modus tenendi Parliam Vowel Coke 4 Inst c. 1. without the peoples election and to leave the people to elect such other persons to represent and vote for them in Parliament in whom they most confided Fiftly our Peeres in Parliament * 12 R. 2. c. 1â— 23 H. 6. c. 11. 9 H. 6. c. 16. 31 H. 8. c. 11. 50 E. 3. n. 209. 1 R. 2. n. â— 37. though they serve for the common good of the whole Kingdome which have alwayes trusted in them in matters of counsel Judicature and making Laws yet they represent up persons but themselves onely and beare their owne expences Wherefore there is no shadow of reason why the people should elect them since they doe not represent them nor pay them wages as they doe to their Knights Citizâ—ns and Burgesses who serve for and represent them and therefore ought in reason right and justice to be elected by them And therefore they may as well argue That our Nobles ought to be elected by the people to their Lands and Estates which descend unto them from their Ancestors not from the common people as to sit in Parlâ—ament by the peoples election onely to represent themselves in their own right not the people in theirs And that the Knights of the Shire ought to be elected to their dignity of Knighthood which the King onely confers on them and to their Lands and Freeholds which they enjoy in their owne right because they are elected by the Free-holders to sit in Parliament in their right who elected them not their owne alone which Barons doe not By all which premisses it is most apparent That our Lords and Barons sitting and voting in Parliament who if you take them poll by poll have in all ages been more able Parliament men and States-men in all respects then the Commons though chosen by the people who alwayes make choice of the best and wisest men as experience manifests is not onely just and lawfull in respect of Right and Title but originally instituted upon such grounds of Reason and Policy as no rationall nor understanding man can dislike or contradict but must subscribe to as necessary and convenient and so still to be continued supported in this their Right and Honour to moderate the Excesses and Encroachments both of King and Commons one upon the other keep both of them within their just and ancient bounds for the Kingdomes peace
safety The rather for that the very Act made this Parliament for the preventing of inconveniences happening through the long intermission of Parliaments not onely enacts but requires all the Lords and Barons of this Realme to meet and sit in every Parliament under a penalty but likewise prescribes an Oath to the Lord Keeper and Commissioners of the Great Seale under severe penalties to send forth Writs of Summons to Parliament to them all and in his default enabled and enjoyned the Peeres of the Realme or any twelve or more of them to issue forth Writs of Summons to Parliament under the Great Seale of England for the electing of Knights Citizens and Burgesses which Act will be meerly void and nugatory if their Votes and Right of sit in Parliament be denyed or the House of Peeres reduced to the House of Commons which this very Statute doth distinguish The Kings and Lords sole right of Judicature in Parliament without Commons cleerly evidenced The Lords Jurisdiction and undoubted Right to sit and Vote in Parlâ—ament being cleerly evicted and undâ—â—â—ably manifested by the Premises I shall next proceed to make good their Jurisdiction and lawfull Right of Judicature never questioned nor disputed till of late without the Commons concurrence To avoid mistakes and clear all scruples you must take notice that there is a two-fold proceeding in Parliament by way of Judicature and Censure First by Bill of Attainder and therein the King Lords and Commons must all concurre because such Judgement is given extrajudicially only by the Legislative power wherein the Commons have of Right a Vote and consent as well as the King and Lords and in this course of proceedings the King and Lords alone can doe nothing judicially without the Commons no more then make an Act of Parliament without them Of this kindâ— of Judgement and Attainder by Bill wherein the King Lords and Commons joyntly concurre there are sundry presidents both in cases Trespas Felony Treason and the like in our printed Statutes 1 H. 4. c. 6. compared with 9 H. 4. Exilium Hugonis de Spencer 15 E. 2. 1 E. 3. prologue and c. 2. 11 R. 2. c. 1 2 3. 5 6 7. 21 R. 2. c. 10 11 12. 9 H. 6. c. 3. 19 H. 6. c. 1. 3â— H. 6. c. 1. 25 H. 8. c. 12. 28 H. â— c. â—8 33. H. â— c. 21. 32 H. 8. c. 25. 2 and 3 E. â— c. 17 18. 1 Mar. c. 1. 16. â—â— Eliz. c. 1. 3. 3 Jac. c. 2. to which the Attaindors of the Earl of Strafford by Bill and Arch-bishop of Canterbury this very Parliament may be added Besides other presidents in the q See Plac. Coronae in Parl. 33 E. 1. Rot. 17. 22 John de Segraves case Plac. Corenae in Parl. 21 R. 2. n. 1. to 27 31 H. 6. n. 45. 64. 38 H 6. n. 9. to 26. Parliament Rolls many of which are cited by Sir Edward Cooke in his 3 Institutes c. 1. â— and M. S. John in his Argument as Law concerning the Bill of Attainder of High Treason of Thomas Earl of Strafford printed by Order of the Commons House Anno 1641. The like Presidents are extant in the Statutes of Ireland 28 H. 8. c. 1. for the Attainder of the Earl of Kildare and others 11 Eliz. c. 1. For the Attainder of Shan◠〈◊〉 and others â—3 Eliz. c. 6 and 7. For the Attainders of John 〈◊〉 Gerald and others An. 27 Eliz c. 1. For the attainder of James Eustuce and others 28 Eliz. c. 8 9. For the Attainders of the E. of Resmond John Brown and others 11 Jac. c. 4. For the Attainder of the Earl of Tyroâ—â— and others Secondly there is a formall Judgement given in Parliament in Causes civill and criminall upon Writs Petitionsâ— Indictments informations or Impeachments and that either against or between Peers themselves or against or between Commons who are â—â— Peers in both which the Lords have a proper Judiciary power without the Commons That they have such a legall and sole Judicatory in the case of Peers is * Cookes Instit on Magna Charta c. 14. 29. 3 Instit c. 1 2. 1 H. 4. 1. Stamf. l. 3. c. 1. 10. E. 4. 6. Bro. Triall 142. Treason 33. 29. 13 H. 8. 11. acknowledged by all who neither may nor ought by Law to be cryed or judge for any Treason or criminall cause unlesse in cases of †10 E. 4. 6. Coronae 34. Cooke 2. Instit p. 49. Triall Bro. 142. Appeale at the suit of the subject but only by the lawfull judgement of their Peers by the expresse provision of r Ch. 14. 29. 20 H. 6. c. 9. 26 H. 8. c. 12. 1 El. c. 1. 5. 5 El. c. 11. and diverse other Statutes See Ashes Tables Coâ—onae 84. Challenge 65. and 8. Magna Charta with sundry other Statutes and by the very Common Law This right of theirs in case of Peers is cleerly evident by the Judgement given in against Earl Goodwin in a Parliament under K. Edward the Confessor before the Conquest An. 1052. recited at large in M. Seldens Titles of Honour Part 2. c. 5. p. 634 635. in the Tryall of Roger Earle of Hereford in the 8. yeare of William the Conqueror who was sued and found guilty of Treason by his Peers Cooke 2. Institut p. 50. by the Judgement given in the Parliament of Northampton against Becket Arch-bishop of Canterbury which you may read at large in Stephanides * M. Selden by the answer of Will. du Breose to K. Johns Ministers Paratus sum ero Domino meo sine obsedibus satisfacere secundum Judicium Curiae suae BARONVM Parium meorum Which right of theirs is asserted by Sir E. Cook himself and proved at large in his 2 Institutes on Magna Charta c. 14. 29. in his 3 Institutes c. 2. where p. 31. he writes thus A Peer of the Parl being indicted of Treason or Felony or of misprision and duly transmitted to the Lords may be arraigned thereof in the upper House of Parl. As FREQUENTLY IN PARL †Titles of Honouâ— Part 2. c. 5. p. 705. 706 707. ROLLS IT DOTH APPEAR As Rot. Parl. 21 R. 2 Plac. Cor. nu 2 to 7. the Earl of Arundels case Rot. Parl. 5 H. 4. nu 11 12. 13. H. 6. nu 49. Earl of Dovers case 28 H. 6. nu 19. 50 51 52. Duke of Suffolks case To which might be added 7 R. 2. nu 22 c. The Bishop of Norwich case for delivering Gravelin to the Enemy Placita Corona in Parl. 21 R. 2. num 1 to 26. Rot. Parl. 50 E. 3. nu 27. The Lord Latymers case 2 H. 6. Rot. Parl. nu 18. The Impeachments of the Commons this Parliament against the E. of Strafford and Arch-bishop of Canterbury who were prosecuted by the Commons not tryed only by and before the Lords as their proper Judges and Peers See 4 E. 3. nu 14. 15 E. 3. nu 6. 8. 44 45. 51. 17