Nobilis in our times is generally restrain'd to Peers whom we call the Nobility our New Writers as Mr. Pryn and Sir Robert Filmer and several others ascribe all to the Earls and Barons and other Peers of our times which they read in the Translations of the Saxon Annals to be acted by those that are called Nobiles in those Annals Altho' in truth in those Saxon times they were acted by the middle sort of Persons as well as by those of the highest sort of Dignity under the King. Those Translators misled our new Authors For the Norman Writers translate the Word Thanes into Barones and these new Authors of ours whatever they find in these Translations to be related of the Barones they limit it as a Peculiar to our present Barons and so ascribe all judicial Power antiently used in Parliament to the Barons only And they bring those Historians and Translators for a Proof For Example The Saxon Title Thanes was in the Saxon times applyed to all Lords of Mannors But the Translators of the Saxon Annals translating the Title Thanes into Barones Our Innovators apply all that in Saxon Writers is said to be done by the Thanes that is all Lords of Mannors as peculiarly belonging to the Power of the Barons in our times Hence it is that Sir E. C. cautions us against taking Reports of Law from Historians in his Preface to the 3d. Rep. he calls it Chronicle Law. The Word Baro was not in use in England till the Normans times and the Root of it as Mr. Seld. and Camd. and Sir H. Spelm. teach us is from the Northern Language Barn which signifies the Male Sex as when we put Cases of Baron and Feme or it signifies a Freeholder hence come the Words Courts Baron Nomine Baronagii says Camd. Eliz. Edit Lond. An. 1600. fol. 137. omnes quodammodo Regni Ordines continebantur It comprehended the Gentry as well as the greatest Persons After this manner Godwin in his Roman Antiquities speaking of the Roman Magistrates Translates the Words Triumviri capitales into 3. High Sheriffs but this affords no Argument that what was done by the Triumviri among the Romans may therefore lawfully belong to the power of High Sheriffs among us And so the Words Proceres Magnates Optimates Nobiles and such like were not in the Writers of the Saxons times restrain'd to Men of the highest rank then such as our Earls and Barons are now but to all Persons of the better sort tho' not of the highest rank not only to Patricians and those of the Senatorian order but to those also that were Equestris ordinis Excluding none but the Ignota capita or sine Nomine turba such as the Romans styled Plebeians Magnates Proceres are said to make the Stat. of Mortmain but we all know that the Parliament that made it consisted then of King Lords and Commons The great Charter made 17 of K. John appears by the body of the Charter it self to have been made per Regem Barones liberos Homines totius Regni so that it is most plain it was not made by the King and the Barons only as Mr. Seld. observes in his Tit. of Honour fol. 709. and there he refers to the Close Rolle 17 Johannis dorso memb 22 Yet K. H. 3. speaking of this Meeting calls it Baronagium Angliae and rot claus 28 H. 3. Pars unica membr 12. dorso it is call'd Parliamentum de Runni-meade quod fuit inter Dominum Regem Johannem Barones suos Angliae As for the other gross mistake That the Power of making Laws rests only in the King as Sir Robert Filmer would have it which he proves from the Titles of Acts of Parliament and the Forms of those Acts being by way of Charter and Grant from our Kings in ancient times as that of Magna Charta DOMINVS REX CONCESSIT and the Stat. De donis conditionalibus DOMINVS REX statuit sure he was no Lawyer that used this Argument and he never read the Prince's Case Nor Sir E. C. 2. Inst. nor shall I need to labour in the consutation of this Errour the fallacy of it being so well known to every Man that wears a Gown As for that Stat of Mag. Char. whereby the King only seems to speak and all that is ordain'd by that Stat. runs in the language of the King's Concessions only yet we know the Stat. of 15 E. 3. c. 1. which confirms it says of it that it was ordain'd by the King Lords and Commons The Stat. of 28 E. 1. c. 8. and c. 13. hath these words viz. The King hath granted unto his People that they shall have Election of their Sheriffs every year if they list One would take this to be a most gracious Liberty and an high Condescension if it should be granted now adays And our Innovators would be apt to conclude from the words of this Act and from the Penning of it that the People once had this mighty Priviledge meerly as a Boon from the King and by virtue of his Grant. Whereas there is nothing more certain and clear than that the Freeholders who are often call'd the People and are the true Proprietors of the Nation and Land had originally and from the very first Constitution of the Nation the Election not only of all Sheriffs but of all other Magistrates Civil or Military that had any Authority over them under the King so that they had a mighty Freedom in the very Constitution of the Nation and this overthrows all the wild Fancies of Sir Robert Filmer and Dr. Heylin and some later Doctors as if all were deriv'd from meer Grace and Bounty and many other Deductions might be made from the knowledge of this The Freeholders had originally the Election of the Conservators of the Peace who are become out of date by introducing our present Justices of Peace who have their Power not by the Elect. of the Freeholders or are they of their Nomination as anciently but nominated by the King and have their Power by special Commission under the great Seal and how and by what means and in what tempered times this came about and that this freedom was gain'd from the Freeholders of England you may read in Mr. Lambard in his Eirenarcha fol. 16. 19. 20. 147. It was done by Act of Parliament in the beginning of K. E. 3d and in his Infancy when his Mother Q. Isabel ruled all The Freeholders originally and from all antiquity did likewise by Writ at the County-Court styled in pleno Folkmote chuse the Heretochii What were those that sounds like a strange word I will imitate our Norman or English Translators in the translation of the Saxon Annals and render it into the English style you may by that rule call them Lords Lieutenants or Deputy Lieutenants for the Saxon Laws tell you their duty or office they were the Ductores Exercitus See Lamb. de priscis Anglor Legibus in his ch de
Heterochiis fol. 147 All these great Officers were chosen by the Freeholders as our Knights of the Shire are and as Coroners and Verderers formerly Men of great Power are chosen by Writ at the County-Court to this day These were mighty Powers and Freedoms and enjoyed by the People as anciently as any of our Records reach and are more authentique Proofs than the writings of Historians and best shew the Native Freedom that the People had by the ancient Constitution of our Government contrary to all the new Doctrines of our late Writers and prove that the Priviledges and Freedoms we yet enjoy are not meer Emanations of Royal Favour as our Novellists would impose upon us See Sir E. C. to this purpose 2. Inst. 174. 558. I could name some great Men that have lately used the same language in Books publish'd sub magni Nominis umbra Bracton who liv'd in the time of K. H. 3. l. 1. c. 1. fol. 1. affirms Legis vigorem habet quicquid de consilio consensu magnatum Reipub. Communi sponsione authoritate Regis praecedente juste fuerit definitum approbatum In the last place that humble and modest way of the People's addressing to their Sovereign either for the making of Laws which has been very ancient or for granting of Priviledges as the Speaker of the Commons hath of late years done it shews indeed great Reverence and I do not in the least dislike it and it becomes the Majesty of the Prince to be so address'd to but let it not be made an argument that either the Laws thereupon made or the Priviledges so allow'd are precarious and meerly of Favour and may be refus'd them I would be loth to pay Wages and to maintain at my Charges every one that styles himself my humble Servant In that Act of Parliament Intituled The Petition of Right the Title corrects and qualifies it self 3 Car. 1. the Lords and Commons petition'd the King but it was for their Rights and Priviledges not for any new but for their ancient Rights and Priviledges and yet they style it a Petition In the Title of this Act the Petition of Right those res olim insociabiles sc. Imperium Libertas are bene mixtae and from hence is a mixt Monarchy In the Stat. of Provisors 25 E. 3. the Commons prayed they are fond of the word and I commend it in them but the word was used by the Figure Catachresis as the Scholars call it not properly as appears by the Subject matter of that Act that follows what was it I pray that they so prayed They prayed says that Act That upon the mischiefs that happen to the Realm the King ought and is bound by his Oath with the accord of his People in his Parliament thereof to make Remedy and Law. The Peers are here included in the People so that the word prayed had it been used to any other than the King had signified remonstrated declared or represented This proves too where the transcendent Power of the Legislature is and that the Exercise of it tho' it be free and not subject to coercion yet it is not at will and pleasure in the Exercise of it but guided by Rules And tho' the Speaker does upon his being approv'd of by the King make it his humble Petition to have Liberty of Speech allow'd the Commons from whence Dr. Heylin and Sir Rob. Filmer and others infer that the Commons enjoy that Liberty meerly by the King's Grace and Favour yet they are clearly answear'd by the words that accompany that humble Petition he prays they may be allow'd that Freedom as of Right and Custome they have Vsed and all their Antient and Just Priviledges and Liberties So that this from the Speaker is also a Petition of Right Nor is this request of the Speakers antient in the use of it if we may believe Mr. Hakewel in his Treatise of the manner of Enacting Statutes in Parliament fol. 136. Thomas Moyle Speaker 34 H. 8. the first that is recorded to have made Petition for Freedom of Speech I hope I have sufficiently made it out that the House of Commons as a Member of the High Court of Parliament are not of so late an Original as 49 H. 3. but have been as Antient as the Nation it self and may in the Sence of Julius Caesar in his Comment be accounted among the Ab-Origines and that they have had a perpetual Being to speak in the Language of the Law temps dont c. Ã tempore cujus contrarii memoria hominum non existit and that they are therefore capable by Law together with the rest of the three Estates in Parliament to prescribe and claim a share in all Parliamentary Powers and Priviledges I do not mean separately but in conjunction with those other Estates which they could not otherwise legally have done if their Originall and Commencement could have been shown I shall in the next place endeavour to make it evident That the three Estates of Parliament are one entire Body and Corporation and that all their Powers and Priviledges in the Right of them and in the Title to them are intire per my per tout and belonging to the whole Body of the Parliament tho' in the Exercise of those Powers and sometimes in the claim of them they are distinguish'd and in the practice of their Powers they are in many things distributed into parts For their Powers are one thing and their Priviledges are another the latter are but an incident or attendant upon the former It is very material in our present case to have this matter consider'd I mean the Intireness of this High Court for Divide Impera The Faggot is easily broken when first the Band is broken If this be well consider'd the consequence of this Case will be better understood It concerns the Defendant only by name and more immediately but in the right and near consequence it is now most evident that it nearly concerns the House of Lords this Information of Mr. Attornies like a Terrae-motus or as that great Blast would have done had not Almighty God in his Infinite Goodness to this Nation prevented it shakes the Foundation of both Houses and reaches to all future Parliaments it frights me to speak what may be the effects of it if it should prevail and be stretch'd to the utmost I am far from saying or thinking it is so intended But who knows how far a single Precedent will be made use of in times to come All the Estates in Parliament are all called by one common name as Commune Concillum Regni Magna Curia They are one Body Politick M. 14 H. 8. fol. 3. in the year-book which I cited before to another purpose it is said by Fineux Ch. I. that the Parliament at the Common-Law consists of the King Lords and Commons and they are saies he but one Body Corporate This proves likewise what I before
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
the Petition of the Commons admits the matter of the Petition to be true and refers to Usage in former times In the same Fourth Part of Mr. Pryn's Register fol. 643. 5 H. 4. Rot. Parl. num 71 78. On the behalf of Rich. Chedder Esq Menial Servant to Tho. Brook Knight for Somersetshire The Commons Petition'd That whereas After the Custom of the Realm all the Lords Knights Citizens and Burgesses with their Servants coming to Parliament by the Kings Writ in coming going and returning are under your Royal Protection c. And this Petition was answer'd by the Act in Print We may note from hence That their Priviledge and therefore much more their being a Part of the High Court of Parliament it was by Custom of the Realm I would note further since I shall have occasion to use it for another very material Point that this Custom though the then present occasion for the mention of it was from the Servant of a Member of the Commons House yet it is alledg'd as one entire Custom for the whole Parliament viz. all the Lords Knights Citizens and Burgesses They are all but One Body One Court and their Rights and Priviledges are entire and not some for the Lords and other for the Commons but it is a joint Priviledge From hence it follows you cannot invade the Privilege of the one House but you invade both Elsing in his Treatise of Parliaments fol. 145. 'T is also in Sir Rob. Cott. Abr. fol. 433. but not so full In the time of the same King 5 H. 4. num 74. The Commons pray That whereas according to the Custom of the Realm the Lords Knights Citizens and Burgesses coming to Parliament ought not for any Debate c. to be arrested It is said to be the Custom of the whole Realm that is the same with the Common Law and it is made to be one entire Custom both for the Lords and Commons and this is for freedom of Debates and not the same with the last that I cited though in the same year 39 H. 6. Rot. Parl. num 9. On the behalf of W r Clerk Burg of Chippenham in Wiltsh And 17 E. 4. Rot. Parl. num 36. On the behalf of I. at Will. Cit. for Exeter In both these Cases though upon occasion of two particular Members yet the whole House of Commons petition'd And the Petition on the behalf of Wr. Clerk runs thus That whereof time that mans mind is not to the contrary it hath been used c. and then sets forth their Priviledge The Petition of the Commons on the behalf of I. at Will. is in these words viz. The Freedom of which Commons hath ever afore this time been and oweth to be that the Knights of the Shire Citizens of the Cities and Barons of the Cinque-Ports call'd to any of the Parliaments of your Noble Progenitors among other Liberties and Franchises have had and used Priviledge that any of them should not be attached by their Persons or Goods in their coming to any such Parliament their abiding nor returning to their proper homes c. Their Freedom had ever been then it did not begin first nor had they themselves their beginning in 49 H. 3. And oweth to be Then it was not of meer Grace and by Permission but of Right it ought so to be And Two Acts of Parliament pass'd upon those two Petitions which confirm the truth of those Suggestions And another thing I would observe which does naturally and easily flow from these Records and is very useful to us viz. That the Commons Petitioning to have these Freedoms allow'd them does nothing derogate from their Right to those Liberties and Franchises nor is no Argument to prove them to be meer Emanations of Royal Favour for the humble way of Address by the Commons to the King to have their Rights maintained is made use of by our Novellists to prove they were granted from time to time meerly by the Kings Grace I am far from condemning this humble way of Subjects addressing to their Sovereign It becomes the Duty of Subjects and is due to the Majesty of a King to have all decent Reverence shewn But I would not have ill use made of their Humility to deprive them of their Rights It was as I take it the observation of Caesar in his Commentary of the Temper of the old Britains Jam domiti ut pareant non ut serviant In that famous Case of Thomas Thorp the Speaker of the Commons 31 Hen. 6. num 25. there are the very Words of the Petition at large set forth in the fourth Reg. of Mr. Pryn fol. 644. Thorp was taken in Execution at the Suit of the D. of Y. The whole House of Commons petitioned to have their Speaker restored to them And their Petition is in these Words By Common Custom Time out of Memory of Man and ever afore these Times used in every of the Parliaments of the Kings Noble Progenitors c. And so it proceeds to declare the Priviledge of the Commons I would observe also out of these three last Records of Parliament That when any Breach of Priviledge befell but a single Member of that House as that of Walter Clerk and I. at Will. The whole House thought it self concerned and the whole House petitioned especially in this last Case of Thomas Thorp their Speaker to whom the D. of Y. was no Friend This will be useful to my Second Point Hitherto I have presented you with Records of Parliament as being the most proper Proof of the Rights of Parliament much beyond the Reports of our Historians from whom our Innovators fetch most of their Arguments I shall now offer you some Records out of an inferior Court one of the four Courts of Westminster-hall that is out of the Exchequer But they are Judicial Records adjudged by the whole Court by Advice with all the Judges of both Benches to confirm the same Point M. 12. E. 4. and H. 13. E. 4. in the Office of the Pleas in the Exchequer mentioned by Mr. Pryn in his fourth part of his Register of Parliament Writs fol. 752. In a Plea of Debt by Donne against Walsh Walsh was menial Servant to Henry Earl of Essex and he sued out his Writ of Priviledg and the Writ under the Great Seal was of this Tenure viz. Cum secundum consuetudinem in regno hactenus obtentam approbatam Domini Magnates Milites Comitatuum ac Cives Burgenses Civitatum Burgorum ad Parliamenta nostra venientes at eorum Familiares ratione alicujus Transgressionis and so proceeds to enumerate other sorts of Actions dum sic in Parliamentis nostris morentur arrestari aut implacitari minime debeant c. And then the Writ mentions that Action of Debt brought against Walsh menial Servant to the Earl of Essex in that present Parliament Vobis mandamus sayes the King by that Writ of Priviledge to the Barons
of the Exchequer quod si ita est Those Words do not refer to the Custom set forth nor to the Law upon it but to the Allegation in the Writ of matter of Fact viz. That Walsh the Defendant was menial Servant to the Earl of Essex And then the Defendant does by way of Plea grounded upon that Writ apply the Writ to himself and averrs That he is the same Person mentioned in the Writ and averrs That he was the menial Servant to the E. of Essex and then demands allowance of his Priviledge The Plaintiff in that Suit traverses the Custom and Priviledge alledged in the Writ as to the being impleaded but admits it as to the Freedom from Arrest This Traverse is in the Nature of a Demurrer for it is Quaestio Juris ad quam respondent Judices non Juratores Et super hot viso praelecto brevi praedicto per Barones c. Habitoque Avisamento Justiciariorum Domini Regis de utroque Banco in hac parte Quia videtur praefatis Baronibus de avisamento Justiciariorum praedictorum quod talis habetur habebatur consuetudo quod Magnates Milites Comitatuum ac Cives Burgenses Civitatum Burgorum ad Parliamentum de Sumonitione Regis venientes ac eorum Familiares Ratione alicujus Transgressionis c. dum sic in Parliamento morentur capi aut arrestari non debent But then they adjudge that the Priviledge does hold only against Arresting their Persons but not against the Suing them This strongly proves the Point I have in Hand That the House of Commons have their Priviledges by Custom and therefore the House it self could not have its Original within Time of Memory as 49 H. 3. is in a Legal Understanding It is very useful further to observe That the single and sole Occasion of this Record was from the Priviledge of the Peers from the suing a menial Servant of a Peer No Man denies but the Peers have even been a part of the Parliament Nay our new Modellers of the Government would have the Parliament to consist only of the King and Lords And yet it is said to be a Joint Custom for the Commons as well as for the Lords by express and particular Words Why did they not lay the Custom for the Priviledge of the Lords only that might have serv'd for that present Occasion which was about the Priviledge for a menial Servant of the then E. of Essex But the Custom was an entire Custom for both Houses This proves them to be coaetaneous and Twins by Birth and Original All this is by the Judgment of all the twelve Judges in a Judicial Proceeding And it takes in the Opinion of the Chancellor who issued out that Writ The other Record of the same Court is entred H. 12. E. 4. Rot. 7. inter Ryner Cousin Keeper of the Wardrobe to the King in an Action of Debt too and there the Defendant claims his Priviledge not as Servant to the King but as Servant to Thomas St. Leger Knight of the Shire for Surrey And the Writ of Priviledge sets forth the same entire Custom both for Lords and Commons tho' the Occasion was here from the Commons only and the Court of Exchequer gives the like Judgment as in the former Case by Advice too of all the Judges of both Benches The next Record I shall make use of shall be that of E. 2. which is a most invincible Proof that the Knights Citizens and Burgesses have originally and before 49 H. 3. constituted the House of Commons and have ever been a part of the Parliament The Burgesses of S. Albans in their Petition to the King say That they sicut caeteri Burgenses Regni ad Parliamentum Regis per duos Comburgenses suos venire debeant prout retro-actis temporibus venire consueverant tam tempore Domini Edwardi nuper Regis Angliae Patris Regis which must be E. 1. progenitorum suorum which must be understood of the Progenitors in the plural number of E. 1. for he mentions the then King E. 2. afterwards so that of necessity it must take in King Hen. 3. and his Father King John at the least And this Computation much exceeds the Date given to the House of Commons by these new Authors viz. 49 H. 3. And then the Petition descends to the mention of the then Kings Time viz. E. 2. tempore Domini Regis qui nunc est semper ante instans Parliamentum And the Petition complains of the Sheriff of Hertfordshire who by the Abbots procuring refused to summon that Burrough The Answer by the Councel is Scrutentur Rotuli c. de Cancellaria si temporibus Progenitorum Regis Burgenses praedicti solebant venire vel non This Answer admits the general Usage of Burgesses to be chosen for divers Burroughs in the times of the King's Progenitors For it is absurd to think that that needed any search of the Rolls in Chancery but the Search was to be only Whether that particular Burrough of S. Albans was one of those Ancient Burroughs that had used that Priviledge and had a Right to it which would appear by the Rolls and Returns of Writs of Summons The Record lays the Usage for the Burrough to have been semper ante instans Parliamentum so that the Usage had been from ever In the Rolls of Parliament 11 H. 4. num 59 cited by Mr. Pryn in his Brevia Parliamentaria rediviva fol. 185. There is a Petition of the Commons in French reciting the Stat. of 7. H. 4. c. 15. which Statute as the Petition says was made for the preserving the Franchises and Liberties of the Election of Knights of the Shire used throughout the whole Realm and by the Kings Progenitors from Parliament to Parliament time out of mind observed I will now put the Court in mind of some Acts of Parliament that fully prove this Point The Statute of 5 R. 2. Parl. 2. c. 4. in a time When Parliaments were not so much valued It is thereby Enacted by Assent of the Prelates Lords and Commons that all Persons and Communalties which should have a Summons to Parliament should come from thence-forth to Parliaments in the manner as they were bounden to do and had been accustomed of Old Times otherwise they should be Amerced as of Old Times had been accustomed Rot. Parl. 2. H. 5. Pars 2. Numb 10. This is left out of Sir Rob. Cott. Abr. That Act declares that the Commons had ever been a Member of the Parliament and that no Statute or Law could be made without their Assent I will not spend time in citing those Learned Antiquaries or Historians as Sir Henry Spelman Bedes Eccl. Hist. nor Famous Selden nor Learned Cambden who by general Words used in the Saxon Times for the Assembling of Parliaments tho' not by that Name prove the Commons to be a Part of Them but they do not prove the Commons to be so
Elected and to consist of Knights Citizens and Burgesses as is clearly Proved by the Records I have already offer'd The Parliament in the Saxon Times was styled Commune Concilium tam Cleri quam populi And the Laws were made per Commune Concilium assensum Omnium Episcopar ' Principum Procerum Comitum omnium sapientum Senior ' popular ' totius Regni Populi Conventus King Edward the Confessor Confirm'd the Saxon Laws and made new says Lambert in his Book De Priscis Anglor Legibus C. 8. fol. 139. and there ' t is said all to be done a Rege Baronibus Populo These general Words cannot be understood otherwise than to include the Commons And so totius Regni assensu omnium astipulatione judicio says Mr. Selden a Judgment was given concerning Lanfrank Arch-Bishop of Canterbury The Statute of Mag. Charta was made and Confirm'd 9 H. 3. which was forty Years before this new Date of the Original of the House of Commons viz. 49 H. 3. And it appears by several Statutes that Mag. Charta was made De Communi Concilio Regni says one Statute Per Commune assent de tut le Realm says another Per le Roy Peers Communes de le terre says another It is worth the while to examin the Grounds of their Opinion and it will appear how weak they are These new Authors affirm that the House of Commons began to be admitted as a part of the Parliament not till â— 49 H. 3. Their reason is because as Mr. Prin says in his Plea for the Lords fol. 182. and in his Preface to Sir Robert Cott. Abr. The first Writ of Summons of any Knights Citizens and Burgesses now extant is no antienter than 49 H. 3. Dorso 10. and 11. And from thence he concludes that it is most apparent that the Commons had no Place nor Votes by Election in Parliament before the End of the Reign of H. 3. and Sir Robert Filmer is in like manner positive in it in his Book call'd The Freeholders Grand Enquest fol. 18. and they both cite Mr. Seld. and Camd. and other Learned Authors and Mr. Dugdale in his Origines Juridiciales fol. 18. follows them in it It is true Mr. Selden in His Titles of Honour fol. 717 towards the end of that fol. does take notice that the First Roll that they find extant is that of 49 H. 3. for the Summoning of the Commons by way of Election but he does not thence conclude as those new Authors do that this was the first time that the Commons came to the Parliament by Election But in other places of his Learned Book he does strongly intimate his Opinion to be that the Commons did very Anciently and long before 49 H. 3. make an Essential part of the Parliament and were summon'd to it but in what Form they were summon'd and when they first began to be distinguished from the Barones Majores Selden himself seems much unresolved Learned Camden does indeed date the Original of the Commons as a part of the Parliament and as now Elected from 49 H. 3. fol. 13. of his Britannia in the Edit at Lond. An. 1600. But let us take notice upon what Authority he does it He says he has it Ex satis Antiquo Scriptore but he names not his Author Mr. Seld. fol. 713. says he could never meet with that Author and professes he gives little Credit to that Relation but acknowledges there had been a great Change in the Constitution of the Parliament but supposes it long before 49 H. 3. viz. in the time of that King's Father King John and that it was done by a Law tho' the Law be lost as many Rolls of Parliament were wherein those Laws were entered And the distinction of Barones Majores Minores he supposes was made by Act of Parliament about the time when the great Charter of King John was made at Runnymead viz. 17 Johannis By which Charter some of the Barones Majores were severally to be Summon'd to Parliament by special Writs And all other Tenants in capite or Tenants by Knights Service were to be summon'd by a general Summons directed to the Sheriff of every County By this Conjecture it should seem that the Court of Parliament before consisted but of one House or Assembly And it is generally held that at the first from the beginning of the Reign of William the first till that Charter of King John all Tenants in Capite had a Right to sit in Parliament For says Mr. Seld. fol. 704. medio folii Tenere de Rege in Capite and to be a Baron and to have a right to sit in Councils or Courts of Judgment are Synonymies That great Charter of King John says Seld. was made by the King and his Barons liberos homines totius Regni and that it seems first made the distinction But Mr. Seld. does by no means leave it to K. H. 3. or his Son E. 1. or to any other King at any time to send his special Writ of Summons to such of the Barons only quibus ipse Rex dignatus est Brevia Summonitionis dirigere As Mr. Camden's nameless Authour taught him and from Mr. Camden Mr. Pryn Sir Robert Filmer and Mr. Dugdale take it up and so propagate that Error So that this new fancy is wholly grounded upon the Credit of that uncertain Writer whom Mr. Selden could never meet with and to whom he gave no credit The Argument upon this Subject begins fol. 701. in Mr. Seld. Tit. of Honour and is continued to fol. 718. Now the Argument taken from the Rolls of Summons which are not extant before the time of 49 H. 3. is of no weight For by the same Argument it might be proved that there was no Parliament from the time of 49 H. 3. till 23 E. 1. For there is no Roll nor no other Testimony left of a Summons for any Knights Citizens and Burgesses from 49 H. 3. till 23 E. I. And yet we know there were no lest than fourteen Parliaments between those times And yet we know there were no less than fourteen Parliaments between those times They may as well argue that there were no Acts of Parliament nor no Parliament till 9 H. 3. when Magna Charta was made because there are no Rolls of them till that time Whereas it is beyond all dispute that there were Parliaments and Acts of Parliament long before as 4 Will. 1. when the Bishops were brought in to hold by Barony as Mr. Seld. conceives and some in H. 1. and others yet extant in History yet the Rolls of them are lost This is observ'd by the Ld. Ch. I. Vaughan in his Rep fol. 358. in the Case of Thomas and Sorrel In the next place these late Authors proceed further in their errour and maintain that the Commons had no further power in Parliament than what the King and the Lords admitted
them unto And Sir Robert Filmer fol. 40. allows neither Lords nor Commons any Power but by the King 's bare Permission and thus they are growing in their Invasions against the Court of Parliament and impeach one first and the other will follow more easily And Sir Robert Filmer further holds the Legislative Power rests solely in the King and fol. 39. he hath these words But the truth is saith he The Liberties and Priviledges of both Houses have but one and the self-same Foundation which is nothing else but the meer and sole Grace of Kings And Doctor Heylin in his Life of Arch-Bishop Laud fol. 91. denies the Priviledges of Parliament to be the Peoples Birth-Right but holds them not otherwise exercis'd than by the Grace and Goodness of the King. Mr. Pryn Sir Robert Filmer and Mr. Dugdale lay great stress upon the diversity that is in the Writs of Summons between the Summons for the Lords and the Summons for the Commons That to the Lords say they is super negottis praedictis tractaturi vestrumque consilium impensuri But that to the Commons is say they only ad faciendum consentiendum his quae tunc ibidem de communi cousilio dicti regni contigerint ordinari It is true that for many years of late that distinction hath been so used in the Summons but not constantly so As to this point I will cite Mr. Dugdale's and Mr. Prin's own Books against their own Opinion The very first writ of Summons which as they say is now extant for the Summoning of the Commons by Election viz. 49 H. 3. runs in these words Nobiscum ac cum praedictis praelatis magnatibus nostris super praemissis tractaturi at que consilium impensuri Dugd. Orig. Jur. pag 18. The Writ De expensis Militum qui venerunt ad Parliamentum venientibus saies that Writ usque ad Westmonasterium ibidem de diversis negâ—ciis nobiscum tractaturis See Mr. Pryn's 4th part of a Register of Parliament Writs fol. 8. In Mr. Ryley's Placita Parliamentaria it appears that as the Summons to the Temporal Lords fol. 318. was ad tractandum and so likewise the Summons to the Prelates fol. 319. so also fol. 320. it is entred in these words Mandatum fuit singulis Vicecomitibus per Angliam quod de quolibet comitatu duos milites de qualibet civitate duos cives de quolibet burgo duos Burgenses eligi ad dictum Parliamentum venire facerent ad tractandum c. In the same Book fol. 570. An. 15 E. 2. there is mention of a Writ of Summons for Knights out of Wales to a Parliament at York ad tractandum consilium impendendum In Mr. Pryn's Brevia Parliamentaria Rediviva fol. 274. there is the very Indenture return'd by the Sheriff of Norsolk for great Yarmouth ad tractandum consulendum consentiendum And fol. 68. of that Book another Writ de expensis militum reciting the Cause for which they had been Summon'd to the Parliament viz. ad tractandum c. And in the same Book fol. 145. it appears that 18 E. 3. the Writs to the Sheriffs for chusing Knights mention'd what their work was to be in these words viz. Nobiscum cum praelatis proceribus praedictis super diversis arduis negotiis nos statum regni nostri specialiter tangentibus tractaturi suum consilium impensuri And fol. 147. and 149. the like words in the Writs And fol. 177. And 276. and 283. and 381. Indentures return'd from Reading Bristol London with the same words And ib. fol. 178 and 179 and 291 for Windsor and 365. So that in the Reigns of seven several Kings and those of the most Ancient Kings there was no such distinction in the Writs of Summons Another Argument used by these late Authors to prove that the whole Power and all the Priviledges of the House of Commons are not from the Original Constitution of the Government as I Affirm and I hope have proved they are but of a later Original and by the meer Grace and Indulgence of Princes as indeed they must be if the House of Commons began within Memory is taken from the Words and Phrases of our Historians who have written since the coming in of the Normans and ascribe the making of Laws and all the Determinations and Decrees in Matters of Judicature and all the Actings of the Ancient Parliaments before the time of the Normans to the King and Lords only Exclusive to the Commons and that the Commons had no part in them till this time of 49 H. 3. And they ground this Opinion upon the Form of Penning of our Ancient Acts of Parliament which seem by the Words of them to be meer Concessions of our former Kings and to have proceeded only from their Royal Bounty and at their sole Will and Pleasure And they Confirm themselves in that Opinion from observing the Course used in the beginning of Parliaments when the Speaker makes his humble Petitions to the King for the Granting of them Freedom from Arrests and Freedom of Speech Now to discover the Falsity of these Grounds and the Weakness of these Arguments taken from the Words and Phrases us'd by our Historians I shall shew that our Historians who have written since the time of the coming in of the Normans and have Translated the Saxon Annals have in those Translations instead of the Saxon Titles used the Titles that were never in use before their own Times which Titles used in the Saxons times had quite different Significations from the Titles used in the times of the Translators The Title Earl for Example is used in the Penning of the Saxons Laws as among those of Athelstan as we may see by Mr. Lambert in his Book de Priscis Anglor Legibus and the Title Comes came in amongst us since from the Empire and signified a different thing from Earl. Now our Translators mistaking those two Titles Earl and Comes to signifie the same thing wherever they met with Earl in the Annals of the Saxons they have rendred it Comes in their Translations and whatever in those times was done by Earls and whatever Power the Earls then used is by our Translators ascribed to our Comites who are therefore also called Earls when in Truth they had different Significations and were different in their Powers Mr. Selden takes notice of this Error in our Norman or English Translators proceeding from their Ignorance But from this Error false Conclusions have been raised and false Measures taken in our Discourses concerning the Power of the Peers Sir H. Spelman observes the same Error in our Translators in rendring Words and Titles Non èmore Saeculi antiquioris but according to the Titles used in their own times when many times they signified different things Nobilis says Mr. Selden in the Saxons times denoted every Gentleman Now because
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
the jurisdiction of the Court. Et dicit quod si quis eorum speaking of the Lords of Parliament deliquerit erga Dominum Regem in Parliamento aliquo in parliamento debet corrigi emendari non alibi in minori curia quam in Parliamento Vnde non intendit quod Dominus Rex velit in curia hic de bujusmodi transgressione contemptu factis in Parliamento responderi Note the Plea as to the offence is very general not only restrain'd to the offence of absenting from the Parliament but to any trespass or offence in Parliament Si quis deliquerit And it would be a little improper to call absence from Parliament offence committed in Parliament for it looks like the quite contrary But in a just sence any offence committed by a Member relating to the Parliament though done out of the House is termed an Offence in Parliament So Printing any thing by Order of Parliament though it be done and executed in another place yet it may be said to be done by the Parliament and in Parliament if it be by their Order and in time of Parliament We may note further that this is a prosecution only against one particular Person for a particular Offence and Contempt charg'd upon him But in our Case the prosecution is against the very Speaker of the Parliament and is in effect a prosecution against the Parliament for it is against him for what he did by command and order of Parliament and sitting the Parliament And though the Attorney-General reply'd to the Bishops Plea that the King might sue in what Court he would yet the Bishop rejoins upon him and maintains his former Plea and there it rests so that as Sir E. C. observes that the Bishops Plea did stand and was never over-rul'd agreeable to the resolutions of former times So this I. may claim as an authority on our side And though Mr. Plowden the Lawyer to the like Information put in against him and others 1 and 2 Philip and Mary pleaded that he remain'd continually from the beginning to the end of the Parliament and travers'd the absence whereby he passes by the advantage of the Plea to the jurisdiction yet this is no Authority against us for he might think fit Renunciare juri pro se introducto having so true an occasions of clearing himself from that scandalous imputation of being absent from doing his duty in Parliament which certainly is a very high breach of Trust and he might be impatient of lying under it and therefore thought it best to traverse it to clear his Reputation in that point yet I must confess I should never have advis'd it nor was there any further prosecution against him I will mention but one most excellent Record more and it is a Record out of the Parliament Rolls 27 E. 3. Num. 9. Sir Cotton's Abridgem and with that I will Conclude I take it to be very pertinent and I am sure it is very seasonable Among the Petitions of the Commons One is They pray the King that he will require the Archbishop and all other of the Clergy to Pray for the Peace and good Government of the Land. And for the King 's good will towards the Commons The King's Answer is The same prayseth the King. And I wish with all my heart it were the Common-Prayer I have but one Prayer more to make and that is That this Court will allow the Defendant's Plea. A DISCOURSE Concerning the Ecclesiastical Jurisdiction IN THE Realm of England Occasioned by the Late COMMISSION IN Ecclesiastical Causes By Sir Robert Atkyns Kt. of the Honourable Order of the Bath and late One of the Judges of the Court of Common-Pleas LONDON Printed for Tim. Goodwin at the Maiden-Head against St. Dunstans Church in Fleet-street MDCLXXXIX A DISCOURSE Concerning the Ecclesiastical Jurisdiction IN THE Realm of England Occasioned by the Late COMMISSION IN Ecclesiastical Causes THE Preamble acknowledges That the King justly and rightfully is and ought to be Supream Head of the Church of England and is so recognised by the Clergy in their Convocations And it is Enacted That the King and his Successors shall be taken c. the only Supream Head in Earth of the Church of England And shall have and enjoy annexed to the Imperial Crown all Jurisdiction c. Authorities c. to the said Dignity of Supream Head of the same Church belonging And that the King and his Heirs and Successors Kings of this Realm shall have full Power and Authority from time to time to visit repress redress reform order correct restrain and amend all such Errors Heresies Abuses Offences Contempts and Enormities whatsoever they be which by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be reformed repressed ordered redressed c. Any Usage Custom foreign Laws foreign Authority Prescription or any thing to the contrary notwithstanding Note This Act doth not make the King to be the Supream Head of the Church of England but acknowledges that he ever hath been so as it is recited by the Statute made in the same Parliament of 26 H. 8. c. 3. the Act for the First-Fruits See the Preamble towards the latter Part being the first Paragraph See also the Oath prescribed by the Statute of 35 H. 8. cap. 1. for the Succession Paragraph the 11th in Mr. Keeble's Edition of the Statutes at large very full to this purpose to shew that the Act of 26 H. 8. cap. 1. gave the King no new Title but only acknowledged that he ever had a Right to it and that the Bishop of Rome had but usurped it And as the Act of 26 H. 8. cap. 1. gave the King no new Title so it gave him no new nor further Authority in Spiritual and Ecclesiastical things nor over Spiritual and Ecclesiastical Persons than what he had before Therefore it is to be enquir'd what jurisdiction or Authority the King had before the making of that Act and how the Ecclesiastical Jurisdiction was of right and duly before exercis'd and administred viz. in what Courts by what Rules Laws or Canons and by what Persons It is clear in Law that the King himself merely in his own Royal Person could never take to himself the Hearing of any Cause Ecclesiastical or Temporal and adjudg and determine the Cause himself For by the Law and Constitution of the Realm the King hath committed all his Power Judicial to divers Courts some in one Court some in another as is held in Sir Ed. Cokes 2d Institutes fol. 186. at the lower end of that folio and in the middle of fol. 187. All Matters of Judicature and Proceedings in Law are distributed to the Courts of Justice and the King doth judg by his Justices See the Reports that pass by the Name of Sir Ed. Cokes 12th Reports fol. 63. the Case of Prohibitions Which is true as to Ecclesiastical Causes as well as Temporal for every Man knows that there
have been from the first Constitution of the Kingdom certain Courts and Jurisdictions erected within this Realm for deciding and determining of Spiritual and Ecclesiastical Causes Selden's History of Tithes fol. 412. All this is excellently well set forth by the Preamble of the Statute of 24 H. 8. cap. 12. concerning Appeals That as the King hath ever been the Supream Head of the Realm which Word Head is by way of Metaphor and must have relation to some Body therefore the Statute in the Preamble proceeds to tell you what the Body is to which the Head relates viz. The Body Politick of the Realm consists of all sorts and degrees of People within this Realm divided by Names of Spiritualty and Temporalty The Statute proceeds to mention the plenary Power Authority and Jurisdiction the King hath within this Realm in all Causes It shews us how that Power is distributed and by whom to be exercised Not by the King in Person nor at his Will and Pleasure in any arbitrary Way but as that Preamble further iustructs us The Body Spiritual hath Power in all Causes Divine and Spiritual to determin and to administer all such Offices and Duties as to their rooms Spiritual doth appertain the like is declared as to Temporal Causes to be in the other Part of the said Body Politick call'd the Temporalty And both their Authorities and Jurisdictions do concur in the due Administration of Justice the one to help the other The Preamble of this Stat. of 24 H. 8. c. 12. of Appeals further shews how that this Ecclesiastical and Spiritual Jurisdiction had been confirmed and defended by several antient Acts of Parliament against the Usurpations of the Bishop of Rome and that long before the Reformation of Religion Then comes the Enacting Part which does Ordain That all Causes determinable by any Spiritual Jurisdiction whether they concern the King himself as the Case of the King's Divorce or any of the Subjects shall be heard examined discussed clearly finally and definitively adjudged and determined within the Kings Jurisdiction and Authority and not elsewhere in such Courts Spiritual and Temporal of the same as the nature of the Cases shall require Then the same Statute shews us in what Courts and by what Steps and Method Suits and Proceedings concerning Spiritual and Ecclesiastical Matters ought to be handled See Paragraph 5 6 7 8 9 10. It begins with the Arch Deacon's Court which is infimi gradus and proceeds gradually from the Arch-Deacon to the Diocesan from him to the Metropolitan and at last it mentions the Convocation as the Supreamest Note That further Appeals have been given by several Acts of Parliament as by 25 H. 8 c 19. from the Arch-Bishop or Metropolitan to the King in Chancery which is by Commission of Delegates c. And it hath been Resolved That though the Acts of 24 H. 8. cap. 12. and of 25. H. 8 cap. 19. do upon certain Appeals make the Sentence definitive as to any further Appeal yet the King as Supream Head may grant a Commission of Review See the Case of Halliwell against Jervois Sir Francis Moores Reports fol. 462. and in the same Reports fol. 782. in the Case of Bird against Smith and in Sir Edw. Cokes 4th Institutes fol. 341. And as the Kings Ecclesiastical Power and Jurisdiction are by the Fundamental Laws of the Realm distributed into several Courts which are mentioned and confirmed by the said several Acts of Parliament and may not therefore be exercised by any other but by such Courts and in such Method and Manner as by Law and the said Acts of Parliament it is provided So also those Courts cannot proceed Arbitrarily but by the known and setled Ecclesiastical Laws Constitutions and Canons that are in force By the Act of 1. Eliz. cap. 1. Entituled An Act for restoring to the Crown the Antient Jurisdiction over the Estate Ecclesiastical and Spiritual c. the seventeenth Paragraph in Keeble's Book of Statutes It is Enacted That such Jurisdictions c. Spiritual and Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority hath heretofore been or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all manner of Errors c. Abuses Offences Contempts and Enormities shall for ever by Authority of this Present Parliament be united to the Crown By the 18th Paragraph of that Act the Queen and her Successors have Power by vertue of this Act by Letters Patents under the Great Seal to assign c. as often as they shall think meet and for such time such Person or Persons as the Queen c. shall think meet to exercise all manner of Jurisdictions Ecclesiastical or Spiritual and to Visit Reform Redress Order Correct and Amend all such Errors c. Abuses Offences Contempts and Anormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Jurisdiction can or lawfully may be Reformed Ordered Redressed Corrected Restrained or Amended and such Person or Persons so to be named c. shall have full Power by vertue of this Act and of the said Letters Patents to exercise use and execute all the Premises according to the Tenor and Effect of the said Letters Patents See Sir Edw. Cokes 4. Inst. in his Chapter of Ecclesiastical Courts fol. 324 325. and see the 3d. Observ. fol. 326. observe the Words viz. It was Enacted out of necessity c. and ibid. Necessity did cause this Commission and it was not to be Exercis'd but upon necessity for it was never intended That it should be a continual standing Commission c. That the main Object of that Act was to deprive the Popish Clergy Almere's Case and Taylor and Massie's Case left to the proper Diocesan Upon the last recited Clause in that of 1. Eliz. was grounded the late Court call'd The High Commission Court From which Act it may be observed and collected That it needed an Act of Parliament to give such Authority to the Queen to grant such Letters Patents or Commission and that without an Act of Parliament such Commission could not have been granted For if the Queen by her meer Prerogative and Supream Power in Ecclesiastical Causes could have granted such Commission an Act of Parliament had been unnecessary And the express Words of the Act are That the Queen c. shall have power by vertue of this Act and the Law had as hath been before observ'd distributed the Kings Ecclesiastical Power and Jurisdiction into several Courts So that without a new Law the like Power could not be put into any other hands in Derogation of those ordinary Ecclesiastical Courts Secondly Note This Act makes no new Crimes nor Offences but gives the Commissioners or Patentees Power to Visit Reform Redress c. all such Errors c. Abuses Offences Contempts and Enormities which by any manner of Spiritual or Ecclesiastical Power can
a Deer unfortunately kill'd the Keeper and his Jurisdiction he being suspended was supplyed by Commission as you may read in Dr. Heylin of the Life of Arch-Bishop Laud in the 87th fol. of the Book it self but more fully fol. 170. The Bishop of London is next in Place and Dignity to the Metropolitans see his Priviledges ibid. 185. See Dr. Heylin's Judgment in the Work of Reforming the Church either in Doctrine or Exercise of the Discipline pertinent to the Matter now in hand but in Point of Law it would be no very difficult thing to discover him to be mistaken fol. 327. See the Power of the Metropolitan and of the Appeal from him to a Provincial Synod and a Stop put there and a ne ultra and that there is no Vicar upon Earth appointed to be the Supream Judge in Ecclesiastical Matters in the Opinion of the Council of Nice discours'd of by Dr. Stilling fleet in his Antiquities of the British Churches fol. 100. but still it must be understood that this fixed Power in the Ecclesiastical Judges and Courts in England is deriv'd from the Crown but now under the Crown setled in this Method not to be interrupted this is quoad Potestatem Jurisdictionis non Ordinis FINIS Introduction Time and Place not material unless the Defendant make them so by his Plea as here Plea. Conclusion of the Plea. Three Points First Point First Proposition Reason Authority The Town-Clerk of Athens The Party to a Suit. Lord Beauch Case A Difference Councellor Attorney Witness Juror Justa occasio lequendi The Minor Proposition The Commons as now elected have ever been a part of the Parliament Dr. Heylin in the Life of Archbishop Laud. Sir Rob. Filmer Dugd. in his Orig. Juridic Mr. Pryn in his Preface to Sir Rob. Cotton's Abr. as he conjectures Dr. Manwaring Pryns Plea for the Lords â—5â— King Charles the Second Fol. 32. Fol. 223. of his Works The Commons as now constituted began before 49 H. 3. Rushw. Hist. Collec Part 1. fol. 52. Proof that the House of Commons have ever been a part of the Parl. In his Pref. to his 10th Rep. Proof by Records of Parliament 51 E. 3. 5 H. 4. nu 71. 5 H. 4. na 74. Mr. Pryn ut supra fo 771. Addresses to the King ought to be with Reverence â—1 H. 6. Thorpes Case Exâ—hequor Records H. 12. E. 4. in the Exchequer E. 2. S. Albans 11 H. 4. num 59. Proof by Acts of Parliament 5 R. 2. Parl. 2. C. 4. 2 H. 5. pars 2da Numb 10. Historians and Antiquaries Et Populi Conventus Seld. Tit. of Hon. pag. 702. in a Case between the Arch-Bishop of York and the Bishop of Worc. Mag. Char. 9 H. 3. Object 1. Fol. 709. The Ancientest Writ of Summons that Mr. Selden had seen for a Peer was but 6 Johannis Tit. of Hon. 707 708. Mr. Pryn's Plea for the Lords fol. 113. but mis-paged 2. Object 49 H. 3. 28 E. 1. 35 E. 1. 15 E. 2. 31 E. 3. 18 E. 2. 18 E. 3. 26 E. 3. 1 H. 5. the Indenture return'd by the Sheriff of Wiltshire recites their trust in the same words and pursues the words of the Writ 2 H. 4. 25 H. 6. 16 E. 2. 27 H. 6. Object Pennings of Ancient Acts of Parliament Petitions for Freedom of Speech c. Tit. of Honout Fol. 603 604. Fol. 603. Fol. 176. The Freeholders grand Enquest fol. 40. 41. 28 E. 1. c. 8. 13. Elect. of Sheriffs The late E. of Clarend in his Answ. to Hobs. Petition of Right 3 Car. 1. Stat. of Provisors 25 E. 3. Mr. Pryn's Plea for the Lords 389 390. All three Estates one entire Body and Corporation 14 H. 8 3. Fineux Ch. Just. Ferrer ' s Case Crompt Jurisd Sir Pierce de la Mare This is contradicted by Mr. Pryn in his Preface to Sir Cotton's Abr. fol. 5 6. The Powers of Parliament Of the Power and Jurisdiiction of the Parliament Nothing acted in this present Case but what is within their Power The House of Commons the Grand Inquest of the Nation The printing Dangerfield's Information 46 E. 3. C. Search of Records must be Free. See the 1 st St. in such Cases of Reporting false News viz. W. 1. C. 34. the Reporter is only to be imprison'd till he have found out him of whom the word was moved So is 2 R. 2. C. 5. the Stat. de Scandalis Magnatum So is 12 R. 2. c. 11. Dier 155. The Lady Morirsons Case Crok 162. but more fully in Marshes Actions of Slander fol. 19. 20. If an action of Slander be brought for Reporting what another had said Slanderously the Pl. in his Declaration must aver that A. did never so report the Defendant may Plead that in truth A. did so report and it is a good Plea by Tanfield Leonards Rep. 1. P. 287. in an Indictment upon the Stat. of W. 1. C. 33. and 2 R. 2. c. 5. for reporting false News it was found billa vera as to the Defendant's reporting the false News but as to the maliciose seditiose Ignoramus and the Defendant therefore discharg'd The Persons too great to be so used John Earl of Moreton So called 1 Eliz C. 3. 4. H. 8. c. 8. the House of Commons call'd the Honourable House in the Petit. of Rich. Strode which is part of the Act. 2d Point Mr. Pryn E Contra in his Preface to Sir Rob. Cot. Abr. but nothing clear 1 â—ac c. 1. The like words Fol. 72. Med. Mr. Pryn. ibid. 388. A Resolve of all the Judges in the point Sir Rob. Cott. Abr. pag. 651. Mr. Pryn in his Plea for the Lords calls this a famous memorable Case and says he was then ch Baron A second Resolution of all the Judges in the point A Protestation of the Commons against Impeachments other than in the House c. The like Claim of the Lords and confirm'd by Act. An Act of Parliament in the point Pryn's Plea for the Lords fol. 401 at large 4 H. 8. c. 8. Memorials of the English Affairs fol. 12. See Rushw. Collect. 1 part pag. 672. Appendix to it pag. 44. The Resolution of the Commons in Irewinnard's Case is called the Judgment of the most high Court of Parliament If it had been clear that the King's-Bench could have punished it they would have begun with it there but they try'd the Council and the Star-Chamber first King Charles the Second Fol. 15. â— Iust. fol. 17. 26 H. 8. c. 1. * Sir Hen. Hebâ—i ' s Reports f. 63. It is said by the Judges of the Common-Pleas That the Power of Justice is in the King as Sovereign originally but afterwards setled in several Courts as the Light being first made by God was after setled in the great Bodies of the Sun and Moon And Sir E. 〈◊〉 4 Inst. f. 70. in the Chapter of the Court of Kings-Bench to the same effect * See the Original of Bishops Courts and Jurisdictions severed from the Hundred Court distinct from Provincial and national Synods and that there were then Ecclesiastical Laws the Chartter of K. William he 1st to Remigius then Bishop of Linc. Mr. Selden's Notes ad Eadmerum f. 167. * Sir Ed. Cokes 5. Rep. The Case of the Kings Ecclesiastical Law f. 40. * Not by extraordinary Commissions at the first instance but only gradually upon Appeales Sir John Davies Reports fol. 91. the Case of Premunire 4. Inst. 339. of Appeals This Statute was the ground for Commissions to hear and determine Spiritual Causes ad primam Instantiâ—m ☞ 4. Inst. 340. Dr. Burnet's Hist. of the Reformation 183. med folii * See Dr. Field of the Church fol. 511 512. The antient Canon requires the consent of 12 Bishops to censure judge and depose a Bishop * See Mr. Bagshaw's Arguments in Parliament against the Canons made by the Convocation 1640 fol. 19.
Newly Printed for Timothy Goodwin at the Maiden-Head against S. Dunstans Church in Fleetstreet AN Enquiry into the Power of Dispensing with Penal Statutes together with some Animadversions upon a Book writ by Sir Edward Herbert Lord Chief Justice of the Court of Common-Pleas Entituled A short Account of the Authorities in Law upon which Judgement was given in Sir Edward Hales's case By Sir Robert Atkins Knight of the Honourable Order of the Bath and late one of the Judges of the Court of Common-Pleas THE Power Jurisdiction and Priviledge OF PARLIAMENT AND THE ANTIQUITY OF THE House of Commons ASSERTED OCCASION'D By an Information in the Kings Bench by the Attorney General against the Speaker of the House of Commons As also a Discourse concerning the Ecclesiastical Jurisdiction IN THE REALM of ENGLAND Occasion'd by the Late Commission in Ecclesiastical Causes By Sir ROBERT ATKINS Knight of the Honourable Order of the Bath and late one of the Judges of the Court of Common-Pleas LONDON Printed for Timothy Goodwin at the Maiden-Head against S. Dunstans Church in Fleetstreet 1689. IN THE KINGS BENCH TRIN. 36 CAROL II. BY INDICTMENT Middles THe Kings Attorney informs the Court That W. W. Esq being a Pernicious and Seditious Man and Contriving and Practising Falsly Maliciously and Seditiously to disturb the Peace and Quiet of the Kingdom And to stir up Sedition and to procure Ill-Will between the King and his Subjects And to bring the D. of Y. into Contempt with the King and his Subjects In order to the Compassing of all these The ninth of November 34 Car. 2 In the Parish of S. Martins in the Fields in the County of Middlesex He the said W. W. did with Force and Arms Falsly Vnlawfully Vnjustly Wickedly Maliciously Scandalcusly Seditiously and Devillishly for his own Lucre Cause and Appoint a certain False Scandalous Seditious and Infamous Libel entituled The Information of Thomas Dangerfield Gentleman to be Printed and Published In which Libel among other things are contained as followeth The Information of Thomas Dangerfield Gentleman c. the Contents of it have been read and need no Repetition In Contempt of the Law and to the ill Example of others and against the Peace and the Kings Crown and Dignity And the King's Attorney prays Process against him That he may be brought in to answer it The Defendant pleads to the Jurisdiction of this Court and says That by the Law and Custom of Parliament The Speaker of the House of Commons sitting the Parliament according to the Duty of his Office as Servant to the House ought and ever has accustomed to Speak Sign and Publish such Proceedings of that House and in such manner as he shall be ordered by the Commons so assembled And that such Speaking Signing or Publishing according to the Law and Custom of Parliament are the Act and Doing of the Commons themselves and hath ever been so accepted and taken and not as the Speakers own Acting or doing And that the Speaker for such Speaking Signing or Publishing by him made or done sitting the Parliament and by their Order ought not to answer in any other Court or Place but in Parliament He further says That at the Sessions of Parliament at Westminster the 15th of March 31 Car. 2 held by Prorogation One William Viscount Stafford and others were impeached by the Commons before the Lords according to the Law and Custom of Parliament of High Treason For a most execrable Conspiring to kill the King And to Alter and Subvert the Ancient Government and the Laws of the Realm And to Suppress the true Religion established in this Kingdom And to root up and destroy the Professors of it And that afterwards in the Sessions of Parliament held by Prorogation at Westminster 21 Octob. 32 Car. 2. The said Viscount Stafford at the Prosecution of the Commons was Tried and Convicted and Attainted in due Form of Law by the Temporal Lords then assembled in Parliament for the High Treasons of which he was so Impeached by the Commons As by the Record of Parliament does appear He further says That in the opening of that Session The King in his Speech to the Lords and Commons charged them to pursue a further Examination of that Conspiracy with a Strict and Impartial Enquiry And the King then told them That he did not think himself nor them secure till that matter was throughly done He further says That in the same Sessions of Parliament last mentioned which continued at Westminster till 10 Jan. 32 Car. 2. both Houses of Parliament in pursuance of his Majesties said Direction made a Strict and Impartial Enquiry after that Conspiracy And upon that Enquiry in the same Sessions of Parliament last mentioned the said Thomas Dangerfield in the said Information named did upon his Oath exhibit to the Lords in Parliament the said Libel entituled The Information of Thomas Dangerfield Gentleman as his true Information of that Conspiracy And delivered it to the Lords which was and is there Recorded as by the Record thereof in Parliament does appear And he also delivered it to the House of Commons in the same Parliament at the Bar of that House And the said Commons then ordered That that Information among others then before given in at the Bar of that House touching the said Plot should be entred in their Journal And that all the said Informations should be printed being first Perused and Signed by their Speaker And that the Speaker should name and appoint the Persons that should print them And that Thomas Dangerfield should have the Benefit of the Printing of his Information And the Defendant further says That he was a Member of the House of Commons during all the Sessions of Parliament last mentioned and was duly Elected and Made their Speaker and was so all that Sessions And that by virtue of and in pursuance of the said Order as Speaker of the House afterwards during that Session sc. 10 Nov. 32 Car. 2. in the Parish of S. Martins in the Fields in the said County of Middlesex He did Peruse the said Information so exhibited by the said Thomas Dangerfield to the Commons and he Signed it by putting to it his Name viz. William Williams Speaker of the House of Commons And then and there appointed Thomas Newcomb and Henry Hills being the Kings Printers to Print that Information according to the said Order of the House of Commons And thereupon the said Information afterwards and during that Session sc. 10 Nov. 32 Car. 2. was printed by those two Printers And that the said Thomas Dangerfield had the Benefit of that Printing according to the Order of the House Which Setting to of his Name and Appointment of the said Printers to Print the said Information are the same Causing and Appointing of the Printing and Publishing of the Libel in the Attorney General 's Information mentioned Absque hoc That he is Guilty of the Premises in the said Attorney General 's Information specified on
that the Defendant does Lupum auribus tenere And so the Judgment was arrested But we find that soon after when the Judges of that Court were chang'd the same Plaintiff brought a new Action for the same Cause And it was adjudged for the Plaintiff That the Action would lie but the Judges acknowledged it was the first Precedent I suppose it was upon pleading Not Guilty Perhaps the Court might have been of another Opinion had the Defendant pleaded specially and justified according to the Opinion of Judge Dodderidge The Case is Cro. Car. 15 Latch 79. The allowing of such Actions of Conspiracy or upon the Case or of Indictments or Informations for what is said or done in a Course of Justice and especially by way of Discovery of Treasons would prove of a mischievous Consequence And would be an occasion of multiplying Actions against the Parties to the Suits against Councel the Attorneys the Witnesses and so Suits would be infinite As in this present Case Should an Action be adjudg'd to lie against the Defendant for what he has acted by Authority of Parliament what a multitude of Actions would be stirred up by it If the Speaker be liable to this Information for what he has done by the same Reason he would be liable to the Actions of the several great Persons that are said to be defamed by the Printing of Dangerfields Narrative And if the Speaker be liable who acted but by Command of others and as their Minister how much more would all those Persons be ilable by whose Command he so acted And how many Narratives have there been printed wherein several great Persons were severely reflected on and how many Votes of the like Nature have there been Printed So that there would arise a Multitude of Suits In Sir Drue Druries Case 6. Rep. 74. The Justices in judging of that Case give a very good Rule and Caution They say That Judges ought to have good Consideration in all Cases depending before them not only of the present Cases but also of the Consequences What general Prejudice may ensue upon them either to the King or Subject The Case before you exceedingly requires that Consideration The Prejudice to the King will be that he will not be Safe for by this means Men will be discouraged from discovering Treasons The Subjects will receive Prejudice by the multitude of Suits that will arise by it This mas suffice to be said in maintaining the first Proposition That no Information or Action lies for what is said or done in a Course of Justice The Minor Proposition is That what is here done by the Defendant in this Case was done in a Course of Justice and in a Legal Proceeding and that in the highest Court of the Nation in the Court of Parliament and done according to the Law and Custom of Parliament This I must make out in the next Place In the making this out I am under a Necessity of speaking of the transcendent Power of the High Court of Parliament and I must assert these Positions following 1. That the House of Commons was originally and from the first Constitution of the Nation the Representative of one of the three Estates of the Realm and a part of the Parliament 2. That what is done by either House according to the Law and Usage of Parliament is properly and in the Judgment of Law the Act of the whole Parliament And that what concerns the One must of necessity concern the Whole not meerly by Consequence but by an immediate Concernment as being One and Entire 3. That what hath been acted in our present Case by the Defendant as Speaker and by the House of Commons whose Minister he was and by whose Command and Order he did What he did was done according to the Law and Usage of Parliament As to the first That the House of Commons was from the first Constitution of this Kingdom a part of the Parliament There has been an Opinion that hath been stifly maintained by some Divines and others of late That the House of Commons originally were no part of the Parliament at least not as now elected and consisting of Knights Citizens and Burgesses but that their Beginning was in the forty ninth Year of King Henry 3. when that King had given a total overthrow at the Battle of Evesham to Symon Montford Earl of Leicester and the Barons And that to ballance the Power of the Barons that King caused the Knights Citizens and Burgesses to be chosen and to make a Part of the Parliament And from hence some Unquiet Innovating Writers quorum res spes ex adulatione pendent and who would destroy Foundations and remove our Ancient Land-marks and the Ancient and Just Limits and Boundaries of Power and Authority Persons of necessitous Estates or of greedy and ambitious Appetites which drive them upon devising how to do some acceptable Service to those that maintain them Or at the best out of unsetled Judgments and too much Zeal which carries them to a contrary extream These Men conclude That therefore all the Power and Priviledge the House of Commons claims is not by Prescription but that they depend upon the King 's Royal Will and Pleasure and had their Original by his meer Concession and not by Ancient Inherent Right nor Original Constitution and therefore may be resumed at Pleasure It was one of the Articles against Dr. Manwaring in the Parliament 3 Car. 1. for which he was Impeached by the Commons and Sentenced by the Lords in Parliament That to Subvert Scandalize and Impeach the good Laws and Government of this Realm and the Authority of the High Court of Parliament and to avert his Majesties Mind from calling of Parliaments and to alienate his Royal Heart from his People he did in his Sermons and in his Books printed endeavour to persuade the King That his Majesty was not bound to observe the Laws of the Realm concerning the Rights and Liberties of the Subjects That Authority of Parliament was not necessary for raising of Aids and Subsidies His Sentence was Imprisonment during pleasure and but 1000l Fine for this high Offence not 20000l as hath been of late times He was to acknowledge his Offences as it should be set down by a Committee in writing at the Bars of both Houses He was suspended from his Ministry Disabled to preach at Court. His Books were to be call'd in and burnt in London and both the Universities Power limited by Law is safest It may be thought Potestas minor sed tutior diuturnior Ea demum tuta est Potentia quae viribus suis modum imponit To encounter these new and upstart Opinions I shall mention an Author or two whom all sober men reverence that are of a contrary Judgment to these new Authors And they are either Eminent Lawyer or Divines And I am the more encourag'd to do it because His Majesty that now
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
argued that the Commons at the Common-Law which is ab initio were a part of the Parliament In the Case of Ferrers out of Crompt Jurisd of Courts fol. 8 9 10. for I keep within my proper Element and move in my Sphere and cite Authors of our own Science of the Common-Law K. H. the 8th call'd before him the Lord Chancellor the Judges the Speaker of the House of Commons and others and thus express'd himself before them viz. That he was inform'd by his Judges that he the King as Head and the two Houses as Members were knit together in one Body Politick so as whatsoever Offence or Injury during time of Parliament is offer'd to the meanest Member of the House is to be judged as done to the King's Person and the Whole Court of Parliament And Sir Edward Mountague the Ld. Ch. I. then present confirm'd all that the King had said and it was assented to by all the rest of the Judges Now if you bruise or pierce the hands and the House of Commons may well be compar'd to the hands for they have been the Liberal Hands and the Hands feed the Head the Head and all the rest of the Body must quickly be sensible In Trewinnard's Case Dier 60. and 61. The Priviledge of the Commons upon this very account is term'd the Priviledge of the Parliament and the Judgment given in that Case by the House of Commons is there said to be the Judgment of the most High Court of Parliament The Statute of 1 C. 1. saies the Parliament is the whole Body of the Realm By the two Records that I cited before out of the Office of Pleas in the Exchequer 12 E. 4. It appears in two several Cases of Priviledge the one concerning the Lords and the other concerning the Commons in both Cases the Priviledge was laid and claim'd as one entire Priviledge and so allow'd by the Judgment of that Court by advice of all the Judges of both Benches The Speaker of the House of Commons by the Rolls of Parliament which are the most proper proofs in a thing of this Nature is term'd the Speaker of the Parliament so it is in the Roll of 1 R. 2. in Sir Cotton's Abr. fol. 155 it was in the Reign of a King that was no favourer of Parliaments Sir John Bussey Speaker to the Parliament Sir Robert Cotton's Abr. 20. R. 2. num 14 and 15. 51 E. 3. num 87. Sir Robert Cotton's Abr. fol. 151. Sir Thomas Hungerford Speaker of the Parliament And so is the Speaker of the Commons styled in the Case of Ferrers in Crompton's Jurisd of Courts fol. 8 9 10. before cited In the Statute of 6 H. 8. C. 16. the Clerk of the House of Commons is called Clerk of the Parliament In the Case of Godsol and Sir Christ Heydon 12 in B. R. in Sergeant Roll's Rep. fol. It was affirm'd by Sir E. C. that in antient time all the Parliament sate together and the separation was at the desire of the Commons notwithstanding saies he they are but one house and he further affirms that he had seen a Record 30 H. 1. of their Degrees and Seats Having made it appear that the Parliament is one intire body and therefore mutually concern'd in Powers and Priviledges as to the Right and Title of them tho' dividod sometiems in the Exercise I shall proceed briefly to show what those Powers are in order to the proving that what in our Case is charg'd to be done by the Speaker by Order and Command of the Parliament for so I may now affirm is pursuant to their Power and Jurisdiction The Parliament hath three Powers 1. A Legislative in respect of which they are call'd the three Estates of the Realm 2. A Judicial in respect of this 't is call'd Magna Curia or the High Court of Parliament 3. A Counselling Power hence it is call'd Commune Concilium Regni For the proof of these I shall cite some few Antiquaries but chiefly some Authors of our Profession of the Law and those of the best Authority with us I shall mention them without observing any exact method because divers of them extend to more than one of these distinct Powers and some of them refer at once to all of them Sir Henry Spelman in his Glossary Tit. Gemotum which was the old Saxon word for a Parliament fol. 261. Convenere saies he Regni Principes tam Episcopi quam Magistratus there are those that now make up the House of Lords Liberique homines there are the Commons what is their proper Work and Power Consulitur de communi salute de pace bello This proves them the Commune Concilium Regni Learned Camden Quod Saxones olim Wittena Gemot nos Parliamentum recte dicicimus as to their Power Summam Sacro-sanctam authoritatem habet in legibus ferendis interpretandis in omnibus quae ad reipubl salutem spectant This shews their Legislature The Mirror of Justices this is an Authority in Law C. 1. fol. 9. saies Parliaments were institued Pur oyer terminer this is is the Supream Court of Oyer and Yerminer The Court of King's Bench is said to be above all Courts of Eire or Itinerant and if the King's Bench be adjourn'd into any County where the Eire is sitting the Eire ceases In praesentia Majoris c. But this Court is above the King's Bench and all Courts of Oyer and Terminer The King's Bench is the Highest Eire but this is according to Solomon's Hyperbole higher than the highest But what is the proper Subject of their Oyer and Terminer Our Antient Author who wrote some part of his Book before the Conquest tells us their work is to hear and determine les plaintes de tort le Roy de la reign de leur Enfans the King's Children so that they make an Impartial Enquiry but saies our Author further De eux specialment de queux torts lun ne poit aver autrement common droit this flies very high to prove their Judicial Power I forbear to English it It is the proper work of this Supream Court to deal with such Delinquents as are too high for this Court of the King's Bench or other ordinary Courts Against whom through their Potency or mighty Interest common right cannot be had it must be understood in ordinary Courts And the Writing and Printing of this was never taken to be a Scandal to the Government or to the Justice of the Nation For the Author speaks in the Person of the King himself and tells us that the High Court of Parliament is arm'd with a Power able to cope with and quell the most insolent Offenders When the Great Judge of all the Earth comes to make Inquisition for Blood and to Execute Judgment by the hands of this High Court. The lofty looks of man shall be humbled and the haughtiness of men shall be bowed down and made low To discourse of this Judgment
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
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
Point Mr. Pryn in his Preface to Sir Cotton's Abr. is of an Opinion by himself that tota Communitas signifies the whole Baronage But it appears by the Body of the Letter there written that Communitas is distinguished from the Majores Sir Sir Cotton's Abridgement 6 E. 3. fol. 12. in the upper part It is said the Lords and Great Men by the Mouth of Sir Henry Beaumont Mr. Hakewell in his aforesaid Treatise speaking of William Trussel says the Commons aswered by his Mouth 13 E. 3. 2 R. 2. Numb 16. Sir Cotton's Abr. fol. 174. The Commons return their Answer to the King by Sir James Pickering their Speaker 17 R. 2. Numb 17. Sir R. Cott. Abr. 353. The King advising with the Commons concerning a Peace with France return their Answer by Sir John Bussey their Speaker Mr. Hakewell in his Book before cited fol. 205. 7 H. 4. says that Sir John Tiptoft while he was Speaker signed and sealed the Deed of Entailing the Crown with these words Nomine totius Communitatis Mr. Elsing in his Treatise of Parliaments fol. 125. tells us that what was spoken by the Speaker is entred in the Rolls as spoken by the Commons But take what is done by the Defendant to be his proper acting yet he acting only as a Minister and Servant to the High Court of Parliament by the ordinary Rules of Law in Cases of Officers he is not suable nor any way punishable for it This is Resolved in the Rutland's Case 6 Rep. 54. and the same Case likewise Reported in Moor's Rep. 765. That an Officer or Minister executing Process which is erroneously awarded as where a Capias is awarded against a Peer the Officer is to be excus'd for he must not dispute the Authority of the Court but obey And in that Case the Secondaries of the Counter and the Serjeants in London were excus'd and held not guilty of any offence So in the Case of the Marshelsea 10 Rep. 76. Where the distinction is If the Court have a Jurisdiction the Officer is excus'd though the Process be Erroneous Qui jussu Judicis aliquod fecerit non videtur dolo malo fecisse quia parere necesse est Keilwey 99. a Med. by Brudnel and the Lord Dier in Trewinnard's Case fo 60. b Where a Writ of Priviledge in case of a Parliament-man Arrested is granted where it ought not to be and the Sheriff by virtue of that Writ discharged the person Arrested Yet the Sheriff saith that Case is not chargeable in an Action for this Parere necesse est What that necessity is we may see in that Case of Trewinnard Dier fo 61. a Med. if the Sheriff refuse to execute the Writ And as a fair warning to Sheriffs and other Officers not to resist or disobey the Commands and Orders of the House of Commons the Lord Dier mentions what punishment was inflicted upon the Sheriffs of London in the Case of Geo. Ferrers They were committed to the Tower for their contempt in not letting a Parliament-man taken in Execution to go at large when the Serjeant at Arms of the House of Commons came for him without a Writ Nay the Lord Dier says in the latter end of that Case of Trewinnard that if the Parliament err'd he speaks it of the House of Commons yet there is no default in the Sheriff When the late King being in Person in the House of Commons and sitting in the Speaker's Chair ask'd the then Speaker Whether certain Members whom the King named were then in the House The Speaker answer'd readily and wisely and with a good presentness of mind which arose from the Genius of that House That he had neither Eyes to see nor Tongue to speak but as the House was pleased to direct him III. POINT As to the last Point That for matters done in or by the Parliament as the matters in our Case are neither the King's-Bench nor any other Court but the Court of Parliament it self can by Law take Cognizance of it This is the great Point of the Case I shall first offer to prove it by Reasons and then I shall back and enforce those Reasons by many Authorities and those of the highest sort 1. Reason The Parliament gives Law to this Court of the Kings-Beneh and to all other Courts of the Kingdom and therefore it is absurd and preposterous that it should receive Law from it and be subject to it The greater is not judged of the less 2. The Parliament is the immediate Court for Examining the Judgments of the Court of King's-Bench and if they be erroneous they reverse them and if this Court should against Law take upon them to proceed in this Cause and give Judgment the Parliament when it Meets no doubt will set it aside as Erroneous And no Man does in the least doubt but they have power to do it and there is as little doubt but they will do it therefore it is wholly in vain for this Court to take Cognizance of it and it cannot be revers'd elsewhere it being in a matter of Jurisdiction See the Statute of 27 Eliz. c. 8. The Preamble reciting that Erroneous Judgments given in the King's-Bench are only to be reform'd by the High Court of Parliament which Court of Parliament was not in those days 〈◊〉 often holden as in Ancient time it had been Neither yet in respect of the greater Affairs of the Realm could they well be consider'd of and determin'd in Parliament c. There is an Exception of Errors that concern'd the Jurisdiction of the King's-Bench those remain as before and in the Errors that are referr'd to the Judges of the Common-Pleas and Barons of the Exchequer by 27 Eliz. c. 8. the Jurisdiction of the Parliament is to Examine them c. 3. This Court as all the Courts of Common-Law Judge only by the ordinary Rules of the Common-Law But the proceedings of Parliament are by quite another Rule The matters in Parliament are to be discuss'd and determin'd by the Custom and Usage of Parliament and the Course of Parliament and neither by the Civil nor the Common-Law used in other Courts 4. The Judges of this and of the other Courts of Common-Law in Westminster are but Assistants and Attendants to the High Court of Parliament And shall the Assistants judge of their Superiors 5. The High Court of Parliament is the dernier resort and this is generally affirm'd and held but it is not the last if what they do may yet again be examin'd and controll'd 6. The Parliament is of an absolute and unlimited power in things Temporal within this Nation I shall now proceed to Authorities that are full to this Point and do second and back those Reasons that I have offer'd wherein I shall not observe any method by reducing or ranking of them under these Reasons that I have offer'd because some of the Authorities justifie several of these Reasons all at once That the Parliament hath the highest and most
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
Affairs set out by a Learned Lawyer and the Son of a Judge and it is the Case that I lightly touch'd upon but now that of Mr. Hollis Selden c. The offence charg'd upon Mr. Denzill Hollis who was afterwards the Lord Hollis Mr. Selden Sir John Elliot Sir John Hobart and divers other Parliament-men was for a force used upon the then Speaker Sir John Finch afterwards Lord Keeper in keeping him in the Speaker's Chair against his will when he would have left it and pressing him to put a question which the King had forbidden him to put For this supposed offence after the Parliament was Dissolv'd these Parliament-men were first convened before the Council where they refus'd to answer the Charge it being for matters done in Parliament Then the Judges had Questions propounded to them to which they gave their resolution that for things done not in a Parliamentary way a Parliament-man may be punished after the Parliament is ended if he be not punished in Parliament otherwise as J. Croke said There would be a failure of Justice but that regularly he cannot be compell'd out of Parliament to answer things done in a Parliament in a Parliamentary course This Answer seems to be very oracular for it resolves that a Parliament-man shall not Answer for things done in Parliament in a Parliamentary course If it be done in a Parliamentary course what occasion can there be to answer for it But who shall judge what is a Parliamentary course but a Parliament not Judges of the Common-Law for the Parliamentary course differs from the Rules of the Common-Law But they refusing to answer at the Council-Board were committed close Prisoners to the Tower. After this Sir Robert Heath the King's Attorney preferr'd an Information in the Star-Chamber against them that was not proceeded in The Lord Keeper was under difficulties about it says the Author The Judges of the King's-Bench were to consult with the rest of the Judges in granting a Habeas Corpus for bailing the Prisoners The rest of the Judges would hear arguments so it was put off and delay'd as our Author reports it At last an Information was exhibited against them in the King's-Bench The Defendants pleaded to the jurisdiction of the Court their plea was over-rul'd and they refusing to plead over judgment was entred by nihil dicit and they fined and imprison'd Mr. J. Croke at the latter end of those Reports gives this further account of that Case that afterwards in the Parliament 17 Car. 1. It was Resolv'd by the House of Commons that those Parliament-men should have a recompence for their damages sustain'd for the services to the Commonwealth in the Parliament 3 Car. 1. If a Judge hath thought fit to report this it may be as fit for me to mention it I take that to be the first precedent or resolution given in any case for what was done in Parliament and it stands alone I have heard of none since that neither It seems to be directly against the provision made by it it is clearly within the Equity and Reason of it Strode's Act. I wish I could not say that even those times of 3 Car. 1. were not full of trouble It appears much by the difficulty the Judges seem'd to be at in the proceedings of that Case this detracts much from that veneration that otherwise is justly due to a Resolution so solemn as that of all the Judges The Lord Chancellor Bacon in his profound Book of the Advancement of Learning dislikes all Precedents that taste of the times and advises that Precedents should be deriv'd from good and moderate Times The only reason that I find given for that proceeding in the case of Denzill Hollis is that given by Mr. J. Croke viz. That otherwise there would be a failure of Justice This reason must be grounded either upon the Infrequenecy of Parliaments or upon an opinion that Parliaments will be partial in cases of their own Members As to the first of these the long intervals between Parliaments This under favour ought to be no reason especially to come from a Judges's mouth I have a great honour for the memory of that Reverend Judge who must needs know and ought to assert it That by the Law Parliaments ought to be very frequent and Judges ought to take part with the Law and to maintain it Before the Conquest as 't is untruly call'd by the Law Parliaments were to be held twice a year as appears by King Edgar's Laws c. 5. in Lamb. de priscis c. And the Mirror of Justice c. 1. Sect. 3. tells us that King Alfred ordain'd for a perpetual Usage that twice in the year and if need were oftner The Seniors or Earls should assemble themselves at London to speak their minds And 't is reckon'd among the Abusions as they are there term'd of the Common-Law That whereas Parliaments ought to be twice in the year for the salvation of the Souls of Trespassers and at London too that they are there but very seldom and at the pleasure of the King for Subsidies and Collections of treasure And by the Statute of 4 E. 3. c. 14. Parliaments ought to be once a year and oftner if need be I have heard a Civilian in the House of Commons give this construction to that short Act that the words If need be should referr to the Parliaments being once a year aswell as to the words and oftner and I never heard that any man was of that opinion but himself but I remember he himself laught when he spoke it but he was more laught at for that ridiculous exposition And should that sense be put upon it it would make the Law a very ridiculous thing indeed for then the short of it would be this That we should have a Parliament when there is need But to refute that fancy there is another Statute of the same King's time namely 36 E. 3. c. 10. which says that for redress of divers mischiefs and grievances which daily happen it s accorded that a Parliament shall be holden every year without any such restriction If need be And by the Act of 16 Car. 2. c. 1. These Acts are declared to be in force And farther it is Declared and Enacted That the holding of Parliaments shall not be discontinued above three years at the most Now how can any man say in Defiance of these Laws That there can be any long discontinuance of Parliaments His now Majesty has been pleased graciously to declare his Resolution often to meet his People in Parliaments and in the word of a King there is power Nay we have the King's Oath for it for he is sworn to observe the Law And eadem praesumitur esse mens Regis quae legis And it is an high presumption for any man to think or say otherwise For that other ground of that reason given by Mr. Justice Croke viz. That there would be a failure of Justice if
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