the House it self and that is one of the Laws and Customs of Parliament and yet no doubt but it was well known to every Member of that House and yet it came not to the Kings knowledge Nu. 16. The Commons deliver'd to the King the Name of the Exhibiter which was Sir Tho. Haxey Nu. 17. The Commons afterwards came and submitted themselves to the King and crav'd Pardon and the King excus'd them Nu. 23. Sir Tho. Haxey was adjudg'd by Parliament to die as a Traitor The King was offended the Commons forsook the Exhibiter and submitted and the Lords adjudge him guilty of Treason This seems to be a strong Case against the Liberty and the Privilege of the House of Commons but it seems strange how it should be made Treason but it is stranger especially if it be suppos'd this Sir Tho. Haxey was a Member of the House one would have thought he should have been under a protection and special privilege But I take him to be no Member for he is afterwards call'd Sir Tho. Haxey Clerk and Graduates in the University and those in Orders were usually dignified with the addition of Sir and it is not yet quite out of use in the University I find by Mr. Pryn in his Plea for the the Lords Fol. 345. that in the next Kings Reign H. 4. the Commons exhibited a Petition on the behalf of Sir Tho. Haxey for he was not Executed the Archbishop of Canterbury took him into his Protection being a Clergy-man and the Commons in their Petition affirm that the Judgment against Sir Tho. Haxey for delivering in this Bill to the Commons in Parliament was against Right and the Course that had been used before in Parliament in destruction of the Customs of the Commons Here note That the Right and Course of Parliament and the Customs of the Commons are mention'd as Synonymies Upon this Petition of the Commons the Judgment is adjudg'd to be null and void But this could be adjudg'd no where but in Parliament for it concern'd the Right and Privilege and the Customs and Course of the Parliament 1 H. 4. Nu. 91. In Sir Rob. Cott. Abr. the Record says Sir Tho. Haxey Clerk Pardon'd and the Judgment revers'd and he restor'd to all This Case in very many Circumstances suits with the Case of Dangerfield and in many with our present Case Ours is in the Case of an Heir apparent or presumptive But a greater than the Heir is here in this Case of Sir Tho. Haxey namely the then King himself But I cite it principally to prove one of my Reasons and Arguments to the third point namely that there are Rights and Customs that are peculiar to the High Court of Parliament and that there is a Law called the Course of Parliaments and it may be observ'd that the Customs of the Commons are the Law and Course of Parliament Concurring with one observation that I made out of this Case that one of the Laws or Customs of Parliament is That no Member is to publish at the Court or elsewhere abroad what is done in the House of Commons but it ought to proceed from the House it self and no other which is another Argument to prove that no other inferior Court can enquire into or hear or determine of their doings for no notice can be taken of what they do unless it come by their own Relation and Discovery That I say which concurrs with this is another Roll of Parliament of that noble King H. 4. viz. 2 H. 4. Nu. 11. The Commons require that is request the King that he would not give an ear to any untrue reports of the Commons-House until the time might try the same and that time is when the Commons apply to the King in it and not before Whereunto the King granted which allows it to be the Law and Course of the Parliament 4. Inst. Fol. 15. Every Court of Justice says Sir E. C. hath Rules and Customs for its direction So the High Court of Parliament de suis propriis legibus consuetudinibus consist it Again Sir E. C. in his select Case Printed 1677. Fol. 63. Note says he the Privilege Order or Custom of Parliament either of the Upper House or of the House of Commons belongs to the determination only of the Court of Parliament And there he cites two Precedents for it The First that of 27 H. 6. in the Controversy between the Earls of Arundel and Devonishire for Precedency The King by advice of the Lords referr'd it to the Judges to examine and to report not finally to determine as Judges of the Case but as Assistants to the Lords ☞ The Judges answer'd That it was a matter of Parliament and belong'd to the King and the Lords to determine One would think this were a strange answer of the Judges to deny their advice Were they not Assistants to the Lords in matters of Law The true reason of their declining to give their Advice is It was a Case above them and not to be determined by the ordinary Rules of Law and therefore out of their element Quae supra nos nihil ad nos Therefore their answer was That it was a matter of Parliament and belong'd to the King and Lords but not to the Judges This is a Resolution of all the Judges in the very point though this particular Case concern'd only the Lords being a matter of precedency between Two Lords yet as I have prov'd the Parliament is one entire Body and are mutually concerned in their powers and privileges The other Case mentioned by Sir E. C. is that of Tho. Thorp the Speaker of the Commons 31 H. 6. taken in execution at the suit of the Duke of York during the recess of the Parliament We have it at large in the Parliament Roll of 31 H. 6. nu 25 26 27 28. The Commons at the opening of the next Session of Parliament request the King and Lords to restore their Speaker to them The Judges being demanded of their Counsel therein Note it was nothing but their Advice ask'd It was after mature deliberation they answered It was not their part to judge of the Parliament which may judge of the Law. Note the reason to judge of the Law signifies they are the Supream Court to judge what is Law and what is not And to judge of the Law likewise signifies that they can judge whether a Law be good or not in order to Approve of it and to Enact it or to Repeal a Law. This is in a Case that concern'd the privilege of the Commons and their Speaker and yet they say that judging in this Case were to judge of the Parliament This intimates too that the Parliament judges by other Rules than those of the Common-Law And 't is the Common-Law is the proper Element of the Judges of the Courts of Westminster-Hall This is a second Resolution of all the Judges in the very point Mr. Hakewel in
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
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
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
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
offences committed in Parliament were not punishable in the Kings-Bench namely because Parliaments will be partial in Cases of their own Members This carries with it a very high reflection upon that great and solemn Assembly to entertain a thought so mean and so dishonourable of the Supreme Court of the Nation that the Court which is to Correct the Errors of all other Courts and is the last resort of the Nation that they should be guilty of Injustice and Partiality No Man that is a lover of his Country or a friend to his own true and honest Interest will harbour a dishonourable thought of that great Assembly I am apter to think that the reporter of that Case did mistake when he charg'd that worthy and reverend Judge Mr. Just. Croke with the offering of that for a Reason I find the most Reverend of our Judges speaking with the greatest Reverence of that Supreme Court. Besides the Learned Lord Chief Justice Sir Edw. Coke who often expresses his great veneration for them Hear what the Ch. Just. Brook and Just. Saunders say of that Assembly in Plowd Comment in the Case of Hill and Grange Fo. 175. a. towards the lower end of that Folio Injustice say they may not be presum'd of a Parliament And in the Earl of Leicester's Case in the same Comment Fol. 398. towards the end of the Folio The Parliament is a Court of very high Honour and Justice of which no man ought to imagine a thing dishonourable I do agree that an offence committed in Parliament is a very high offence but the higher it is the more proper it is for their Judicature and that Court is arm'd with a power to punish the highest offences and the highest offenders But to take it out of their hands and to make it determinable in any other Court is a disparagement to that Grave and Supreme Court. We easily agree that a Parliament may Erre for they are not Infallible but the Law hath provided a Remedy against those Errors and a way to Reform them A subsequent Parliament may Reform the Errors of a preceding Parliament as I have prov'd by several Authorities But to say they will be partial or unjust or corrupt or do any thing out of malice is to raise a scandal upon the whole Nation whose Representative they are I will make no difficulty to affirm That if any offence whatever be committed in the Parliament by any particular Members as this was accounted a Force or Riot in the Case of Denzill Hollis and Selden and others committed upon the Speaker it is an high infringement of the right and privilege of Parliament for any Person or Court to take the least notice of it till the House it self either has punish'd the Offender or referr'd them to a due or proper course of punishment To do otherwise would be to make the highest Court an Offender and to charge them with Injustice Nay their right and privilege so far extends that not only what is done in the very House sitting the Parliament but whatever is done relating to them or in pursuance of their Order during the Parliament and sitting the Parliament is no where else to be punish'd but by themselves or a succeeding Parliament although done out of the House as in the case of Ferrers It any shall imagine as Mr. Pryn does and others that of later times the Parliament have encroach'd more power than anciently belong'd to them I have already answer'd this objection by shewing how large a power they exercis'd of old and see what is further mentioned in Lamb. Archion 57. viz. That King H. 3. was told by his Lords Spiritual and Temporal that of ancient time the Creating and Deposing of all the Judges and great Officers belong'd to the Parliament I do not deny but some sort of Orders by them made are no longer in force than while the Parliament sits but then what is done after the Parliament is risen is not to be said to be done by their Order for then it ceases to be their Order This must be understood of matters Executory not as to things executed by their Order during Parliament However this Case of Denzill Hollis comes not home to our present Case but 't is wonderfully short of it This was an Offence charg'd only upon some Particular Members and it cannot be denied but particular persons even in the Parliament may misdemean themselves and they are to be punish'd by the Parliament but no where else But in our Case that which makes the Offence and for which the Information is brought by the Kings Attorney is what is done by the whole House of Commons and by virtue of their express Order Although as I have already observ'd the Information it self does not expresly own it yet the demurrer to the Defendant's Plea which sets it all forth does most plainly avow it And this I am sure is without any colour of precedent and never was attempted till this time If any Man will extenuate or justify this way of proceeding by saying that this was not for any thing done in the House but a matter done out of the House viz. the Printing and Publishing was abroad in the Printing-House and in the Streets and spreading them abroad throughout the Kingdom Yet this will not salve it for the Defendant did what he did as Speaker and not in his private Capacity And it was done by order of the whole House and sitting the Parliament so that this Information does directly question the Parliament it self and Arraigns their power and actings for I have fully prov'd that what the Defendant has done is not his Act but indeed the Acting of the whole House of Commons And I have also prov'd that the Two Houses as to the right of the power that they claim and use is but one and they are intire though they may divide in the exercise of that power So that it is a matter of the highest concernment to the Nation that possibly can be Sir E. C. in his Fourth Inst. in his Chapter of the High Court of Parliament mentions Two Cases only and some other beginnings of a Prosecution against such as absented themselves from Parliament and departed from it without Licence but they had no effect as he affirms but only against Six timorous Burgesses where Thirty nine Members were inform'd against who ad redimendam vexationem submitted to Fines but he could not find that ever they paid any The first of the Two Cases is that of the Bishop of Winchester it is in the Year-Book of 3 E. 3. Fol. 18 and 19. Fitz. H. Abr. tit Coron plac 161. And he affirms that those are all the Cases that he can find concerning this matter The suit against the Bishop was by original Writ in the Kings-Bench and it charges him with a Trespass and Contempt in departing from the Parliament without the Kings Licence The Bishop there pleads as the Defendant does in this Case to
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.