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
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
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
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
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
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
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