was no proceedings as in Civill in Parliament against any Members thereof in an ordinary course of Justice and therefore this Law was made somewhat to abridge this high priviledge namely in this that any Member offending shall be subject to the censure of that great Court in an ordinary course of Justice which before he was not but in an extraordinary way by Petition or the like in which condition he now stands as to civill actions To this I can give no positive answer but I rather incline to thinke that this Law was rather parcell of the priviledge it selfe or contemporary with it and no subsequent Law and so this collection formerly mentioned nor materiall Also I conceive that if this Law before objected shall be found subsequent to the priviledge of Parliament in this particular which for my part I doe not credit yet before this Act or Law delinquent Members thereof were not exempt from Justice but onely in a positive course of proceeding they were still subject to the censure of that high Court in an arbitrary way and so no Cesser or defect of Justice which were a thing of so honourable a Tribunell not to be imagined Thus you see the wisedome of the Law in the framing of these great priviledges in Criminall matters The Reason and ground of the Priviledge of the Parliament both in Criminall and Civill matters Nota. because both God and man require festinum remedium the offences being exorbitant Justice open and cannot be denyed even in an ordinary Course Also the House of Parliament being first acquainted therewith and their leave obtained Censure may be elsewhere not otherwise in civill actions not so but an utter cessation of necessity of ordinary course of Justice for if otherwise the Parliament would be filled with private Suits and Actions and many of them frivolous the many and weighty affaires of the Kingdome in the meane time neglected To conclude the Parliament you see hath that high Priviledge in Criminall matters communicated to no other Court of Justice The Priviledge of Parliament paralleld with the priviledge of inferiour Court in Civill matters but in Civill Actions there are some foot-steps of this great Priviledge in inferiour Courts In the Common Pleas a Writ of Priviledge or Supercedeas to stay proceedings against any member of that Court and if the parry hath cause of Action he ought to Sue in the Common Pleas parallel this case with the Priviledge of Parliament in Civill Actions you will finde it almost the same The Supersedeas or Writ of Priviledge removeth not the Cause no more is the Cause removed by clayming the priviledge of Parliament but a Cesset processus legis quousq c. If the Party hath cause of Action he must Sue in the Common Pleas Priviledge of Parliament in Civill Actions greater then of inferiour Courts so may he I take it in Parliament by Petition or otherwise as the pleasure of that Court will permit but not in any course of Justice ordinary as he may in the Common Pleas here the priviledge of Parliament exceedeth the priviledge of inferiour Courts Likewise in Common Pleas priviledge for Strangers Eundo redeundo concerning their Suits there and this extends as well to their persons to free them from Arrest as to their goods necessary for their Suit and Charges priviledges of Parliament I take the same I need not use repetition Now to hasten to an end of this the reason why the Law hath given unto this High Court this and many other priviledges is for the publike good to the end that Parliaments which are to the State Tanquam medicus aegro like the Phisitian to a sicke person should not be eluded or frustrated by suggestions of Crimes against any members thereof by the King or any persons whatsoever The very being of Parliaments depend upon the priviledge in Criminall matters being taken away from the service of the Houses tryed elsewhere by inferiour Courts for so they might take away all and consequently make a Parliament what they would and when they would which is a breach of so essentiall a priviledge that even the very being of Parliaments dependeth thereupon His Majesty in one of his Declarations saith Object That the Parliament themselves in the beginning of his Raigne in a Petition unto him presented by both Houses in the case of the Earle of Arundell acknowledged their priviledge not to extend to Treason Felony and the Peace the words are They finde it an undoubted right and constant priviledge of Parliament The priviledge of Parliament in expresse words by themselves presented to the King that no Member of Parliament sitting in the Parliament or within the usuall times of priviledge of Parliament is to be imprisoned or restrained without Order or Sentence of the House unlesse it be for Treason Felony or for refusing to give Sureties for the Peace I have faithfully and truly opened all matters that make any waies against me and so I will God willing throughout this whole Discourse let the Reader impartially judge Sol. Priviledge of the Parliament as large as before notwithstanding the words of this petition Although these words fore-going of this petition be very large and seeme much to abridge this privil dge yet upon true examination they doe not for the words That none shall be imprisoned or restrained c. plainely relate to civill actions or proceedings the words Unlesse in case of Treason c imply they shall be subject to imprisonment or restraint but note the words they doe not say of any inferiour Court but still the priviledge remaineth the same notwithstanding the words of this petition But here it may be objected that 〈◊〉 have left out that which makes most against me viz. these words Without order or sentence of the Houses implying cleerly that in Cases of Criminall the order and Sentence of the House is not requisite Sentence and Order of the Parliament an extraordinary course of Justice upon the words of this petition Nota. but they may be proceeded against without leave But marke the words and then judge it is plaine by their sence and meaning that in civill actions they cannot be proceeded against without sentence and order of Parliament no ordinary course of Justice The order of Parliament upon petition or the like is an extraordinary and Arbitrary course of Justice but in Criminall matters they may be censured without sentence and order of the House that is in an ordinary and positive way of Justice but this must be in the hâ—gh Court of Parliament it selfe and not else-where without their leave and so is the sence of these words to any rationall man well observing There is no power given to inferiour Courts by these words either expresse or implyed Nota. but the priviledge continueth the same it was nothing diminished by the words of this petition Further The positive law in inferiour Courts and the law of
power and authority by Law vested in the King in derogation of his high Court of Parliament as makes the rules of Law and Justice meerely Arbitrary as in those particulars afore specified we must needs grant and yet in inferiour Courts the same rules in Arbitrary Government no where warranted or allowed but contrary wise their proceedings obliging both King and people to a mutuall observance by a legall power and authority to that purpose setled in them This were repugnant even to sence Now to summe up this point if the King cannot leavie or maintaine any Forces by Sea or Land as is formerly proved though for defence of the Realme or his Person upon his owne Judgement or apprehension of danger What shall we then say to this effusion of bloud the Authors and fomenters of this intestine Warre shall they be protected Surely at some mens hands this bloud will be required and though they may here escape yet righteous judgement must be expected hereafter Papists inabled nay compelled to beare Armes contrary to the lawes viz. 3. Jacobi 5. Also this matter seemeth more to be aggravated since in this late great and numerous Army of the King those persons who are prohibited by Law to come within tenne miles of the Court disabled by Law to beare Armes within this Kingdome contrary to the Kings owne solemne Protestations made unto his Parliament are enabled nay commanded to beare Armes to the destruction of the Kings subjects I meane the Popish Party in this Kingdome whose doctrine and practises both to King and State in most execrable Treasons and impious Conspiracies hatefull both to God and man are sufficiently manifest to all the world and need not here to be remembred Now there being such a cloud of Witnesses as is afore specified Common Law Stat. judgement of this Parliament proving the Armies Illegall viz. the Common Law the Statute Law the Judgement of this Parliament in Master Hampdens Case the very same in Law and reason convincing any capacity in the certainty of this truth that these Armies now maintained by the King are not warranted by Law What shall I say more yea what shall we thinke of this Commission of Array Commission of Array destructive of Parliaments upheld by our opposites What is this likewise but a meere usurpation a plaine violation of the Lawes and what would follow if this doctrine should be admitted but a finall dissolution of Parliaments For what would they then serve for if Armies of men may contrary to the positive Lawes be raised without them They would be at the best but as the tyrannicall Bishop of Rome formerly boasted Puteus inexhaustus an ever springing Fountaine to satisfie the ambitious desires of the mighty with the riches and wealth of the people nay peradventure Aides Taxes and Impositions would be had at pleasure and the people by force compelled to slavish obedience as we have found by sad experience too dearely bought in a branch of these Dominions the unfortunate Kingdome of Ireland where the insolencie of the Souldiers was such yea even in the times of Peace in the time of the late Earle of Strafford that the Lawes were sleighted and trodden under foot and the Paper Decrees of the Castle Chamber put in execution by these Agents in Armes forcing the poore subject to obey whatsoever was in this wicked and illegall manner commanded what difference now betwixt the Turkish Government and this new devised Monarchy of these Dreamers the lives and estates of all men being subjugated to misery and inevitable destruction but God in his good time discover these evill instruments and bring them to Justice who labour to involue so great a Prince into inextricable errour and calamity I promised moderation therefore I will say no more but will divert my meditations to the period of this discourse as thinking I have satisfied mine owne conscience it not others in so large a debate hereof Object There is one great Objection made by the adverse part which if answered this particular is satisfied And that is By what authority are the forces of the Parliament raised Seeme they not as illegall as unwarrantable Sol. To which I answer That the Parliament themselves in their Declarations which I have seene make it onely on their part defensive there being an Army intended against them full foure yeares since the Army raised against the Scots and afterwards for this purpose implyed to awe this Parliament and to force them to consent unto such Articles framed by evill persons touching the Government of this Kingdome which appeares by the Depositions of divers persons of note and quality annexed to a Remonstrance of Parliament 19. Maii 1642. which sure was long before an Army raised by the Parliament or thought upon the King being then present at Parliament and I will not say it was by his privity or knowledge Onely thus much I will say That this Act was alone sufficient to breed jealousies and feares in the Parliament and to provide further for their defence and security Afterwards this was increased by the Kings comming to the House of Commons in that unusuall manner to demand the Members affrighting the Assembly there present who upon request were denyed a Guard Afterwards his Majesty at Yorke at Nottingham had a considerable Army of men to the number of foure or five thousand as I have credibly heard by those that were then there present and all this while no Army of the Parliament appearing that I did heare of only speeches to that purpose Now upon all these proceedings the Parliament for their owne defence the Kings Royall Person and Authority the defence of the rights and liberties of the Subject raised an Army under the command of his Excellency Rob. Earle of Essex which whether or no defensive or justly done I leave it to the world to judge upon that which hath been formerly spoken But to make a more full answer and to square my course in these Treaties by the positive Lawes to stop the mouthes of clamorous people The raising of Forces by the Parliament justified as a Court of Justice The Parliament and either of the Houses must be admitted to have supreme power of Judicature without the Kings Personall presence as the Rolls and judiciall proceedings thereof sufficiently manifest as is formerly spoken and if so then they have power to Summon Censure and judge all Delinquents yea force them to submit to the Justice of that high Court upon contempt by enjoyning Posse commitatus yea Posse Regni to execute their Commands against all disobedient persons unto the Justice and Government of this Kingdome and this meerely by the Law of inferiour Courts as I have formerly remembred therefore this shall be sufficient Object Legislative power just There is one thing that scruples the mindes of Malignants much and that is That the Parliament have hitherto proceeded by a meere legislative power and not by the positive Lawes and
possession of any Castle or Fort. The Sheriffe hath his authority from the King viz. by Statute 9 E. 2. unto which the King hath assented to defend any Castle defencible with the Militia of the County therefore if the Sheriffe or any such like subordinate authority from the King hold a Castle defenceable it is in judgement and speech of Law the Kings possession of the same but of this sufficient For the great Offices The great Offices of the Kingdome the disposition of them did anciently belong unto the Parliament as their rights and that Master Lambard a learned Lawyer in his Archeion of the Courts of Justice testifieth whose words are these The great Offices anciently pertaining to the Parliament That the Keeper of the great Seale was wont to be elected by Authority of Parliament and he saith further That he had read that Ralph Nevill Bishop of Chichester being Chancellour to King H. 3. being Commanded refused to yeeld up his Seale unto the King when he required it affirming that as he had received it by the Counsell of the Realme so he would not without like warrant resigne it againe And in the daies of the same King it was told him by all his Lords spirituall and temporall That of ancient time the creation and disposition of the chiefe Justice the Chancellour and Treasurer belonged to the Parliament Thus farre Mr. Lambard Dr. Cowell also in his Booke called The Interpreter whom I nominate at this time as a Royalist in this yet he citeth a President in the time of King H. the 6. who directing his privie Seale to Richard Earle of Warwick thereby to discharge him of the Captaine-ship of Callis the Earle refused to obey and continued forth the said Office because he received it by Parliament and the inference of Cowell hereupon is false that either the King must be above his positive Lawes or else he is no absolute King for he is an absolute King though not above the Lawes for his Government were then meere Tyranny Vid. Dâ—vant f. 16. 6. also the Kings of this Nation are nor in that sence absolute Monarchies for this is a mixt Government partly Politicall partly Monarchicall as that worthy Knight Sir Thomas Smith in his Common Wealth of England affirmeth and this I have remembred before Further Sir Edward Coke in his Magna Charta f. 558 559. saith That anciently Offices either for the preservation of the Peace or execution of Justice because they concerned all the Subjects of the County were not disposed of by the King but by the Free-holders of the County chosen in every severall Shire by the Kings Writ now if it were so for the publke Offices of the County the same Law and reason telleth you that it must be so for the publike Offices of the Kingdome either it must rest in the people or their representative Body Object But it may be objected That Sir Edw. Coke saith in the samâ— place that the Statute before named of the 28 E. 1. is altered by 9 E. 2. and so this Office of the Sheriffe being a publikt Office for the preservation of the Peace and execution of Justice also is not in the Subject or their representative Body Sol. To which I answer shortly because it hath been formerly debated Altered not abrogated or â—ullified That Sir Ed. Coke is thus to be intended that it is altered partly as to the election of the Sheriffe in the Exchequer if the Judges pursue the same Statute and the Free holders of the County doe not elect before them and so that authority is good Law We must make such interpretation that every learned mans judgement may be honourably esteemed and be effectuall It likewise appeareth by the same Author that anciently the Conservators of the Peace or Justices of the Peace were chosen by the People and so are many Offices at this day the election of the Officers is by the Free-holders or people the Kings Writ issuing forth first for that purpose Vsage of no forcâ— against a statute or judiciall record Now what Law hath taken away those from the people or their representative Body Verily none that I know no act Judiciall or Record whereby the right of the Kingdome is expresly given away or if this did appeare No statute gives away the Subjects right expresly in the disposition of great Office or of the militia or if it should be granted that usage recorded in the Kings Case were sufficient yet in these particulars it will not give a right unto the King and if he hath time out of minde disposed of them yet this will not availe if by any matter of Record the right of the subject appeare as it doth by Statute Law before remembred and by legall authority Nota. then usage is invalid as the learned in the Lawes know The Act of 28 E. 1. settles the Militia in the subject as you have heard formerly here the right of the subject appeares the Forts Navie Castles and Magazines depend all upon the Militia either the absolute or generall power of the Militia or the Militia positive or regulated by the positive Lawes both which are by Law vested in the People or the representative Body the Parliament as you have heard formerly The great Offices of the Kingdome appeare by learned and legall authority afore mentioned in the Subject and their representative Body both in right and in disposition What shall I say more if this be not sufficient to make the Subjects right cleare in this particular Prescription of no force against â— statute Then although the King hath by usage almost gained a perpetuity in them yet this will not serve no prescription or use will be of force against a Statute or judiciall Record for that is proofe to the contrary as the Law saith And the Kings Case is all one with the Subjects in this Regall use is of no force against a Statute or judiciall Record for as the rule of Law is true Nullum tempus occurrit Regi prescription is not good against the King in many Cases so it is as true Nullum tempus occurrit legi no usâ—ge or prescription is of any effect either in the Kings Case or Subject against the Law appearing by Statute or judiciall Record and I hope no man will say but that the Rolls of Parliament are judiciall Records Vsage of no force against claimes and interruptions besides our legall Annals or Bookes Further if usage shauld be admitted yet here have been divers clamours and interruptions of Parliament yea dispositions by them of those great Offices and those other particulars and then necessarily usage is not of force as the Law saith for the Parliament claimes unto the great Offices of the Kingdome yea their disposition of them from time to time I have spoken of before as also of the Subjects disposition of the Militia Vsage gaines no inheritance or right of claime or
just and lawfull defended For to come to particulars wherein I will observe this order and method The method of this Discourse First I will present you with the Lawes and Priviledges of Parliament apart by themselves and such of them onely as are unanimously acknowledged for undoubted Rights and Priviledges of that high Court. In the next place I will deliver unto you the Exposition of the said Priviledges by the positive or knowne Lawes or parallel them with the rights and priviledges of inferiour Courts of Justice as also shew the violation of them briefly And lastly I will observe some particulars worthy the consideration both in Government and State arising evidently from the premisses or not impertinently depending thereupon where you shall likewise finde some Lawes and Statutes of this Realme remarkable for use incidently debated Priviledge of Parliament the law of Parliament But in the first place before the hardling of these I would desire you to take notice that the Priviledge of Parliament and the Law of Parliament is of one sence in Law Privilege quasi privata lex Amongst the severall Lawes of this Kingdome by Sir Edward Cooâ—e mentioned in his Jnstitutes the Law of Parliament is one meaning principally the priviledges and proceedings of that Court mentioned in the Rolls and judiciall Records thereof For the Lawes there enacted having no speciall relation to that Court are not intended in this sence the Law of Parliament of which Law it is said Ista lâ—x Lex Parliamente What it is consuetudo Parliamenti est ab omnâ—bus quaerenda a multis ignorata a paucis cognita This premised the first Priviledge of Parliament that I shall offer unto you is this That if any of either Houses shall offend or commit any Crime that they themselves shall have the censure and punishment thereof yea the ancient Custom of the House of Commons is That if any shall chance of that House to offend or not to doe or say as becommeth him or if any shall offend them being called to that His Highnesse Court that they themselves according to their ancient Custome have the punishment of them which last priviledge of the House of Commons is very large pointing out unto us That this House of it selfe is a high Court of Justice and extendeth as well to Strangers as Members of the same in their power of Judicature And it appeareth that matters of Parliament are not to be ruled by the Common Law as also that if they might have been else where punished it shall be intended that sometimes it would have been put in ure and the Presidents that have been against the Law in this point have been in all ages condemned as illegall And for proofe of these afore recited particulars you may peruse that much to be honoured Lawyer Sir Edward Cooke in his Booke called The Jurisdiction of Courts tit Parliament as also Sir Thomas Smith in his Common-wealth of England Fol. 18. a learned Gentleman in both Civill and Common Law so that you see here a positive priviledge belonging to the High Court of Parliament in Criminall matters which no inferiour Court of Justice can claime which I shall likewise prove unto you a positive priviledge without qualification notwithstanding the ensuing Objection Object That to Cases of Treason Felony and the Peace priviledge of Parliament shall not extend for the priviledge of Parliament here intended is the priviledge of that high Court in Civill Actions which is an utter cessation of all proceedings during Parliament either in that Court or elsewhere in an ordinary course of Justice and upon these words priviledge of Parliament is a legall acception Priviledge of Parliament a legall acception having onely relation to that high Court of it selfe and to the proceedings thereof and to no other Court of Justice and in this sence it is only taken by the words of this Law Priviledge of Parliament a legall exception Priviledge of Parliament is likewise a legall exception and so it hath a relation to other Courts of Justice which exception any Member of Parliament may make use of to quash all proceedings against him in inferiour Courts in Criminall matters and as to that part of this priviledge nothing is intended by this Law for the Members of Parliament offending criminaâ—ly shall be subject to the Censure of that Court and not elsewhere without their leave therefore the priviledge before mentioned of this high Court in Criminall matters remaineth firme and no waies nullified by the words of this Law His Majesty in one of His Declarations laboureth much to disprove the sence and meaning of this Law to be thus taken For then saith the penner thereof Object Where is the restriction of this Law that to Treason Felony and the Peace priviledge of Parliament shall not extend This priviledge remaineth as large as any other priviledge of Parliament notwithstanding this Law if this be the exposition for no priviledge can intend a totall Cesser of Justice I answer Sol. These words are opperative of this Law and yet they are mistaken in their explication of them In Criminall matters ordinary and positive proceedings in Parliament in Civil not so for the priviledge is not so large in Criminall matters as it is in Civill and that by reason of these words restrictive for in Criminall matters they shall be subject to Cenâ—ure in an ordinary course of proceedings in that Court by Endictment Bill or otherwise by the meaning of this Law whereas in Civill Actions it is not so there is no positive course of proceeding against any Members of Parliament they are onely left to an extraordinary course of Justice Petition or otherwise as the pleasure of that great Court will permit So you see this Law or priviledge justified noâ—withstanding any Objection and no Cesser of Justice Object It is further objected that if this shall be the meaning and exposition of this priviledge then this mischiefe will follow That if a Member of Parliament shall commit a Murder or Robbery at Yorke the Parliament sitting at London then it he may not be questioned untill the pleasure of Parliament be knowne he may escape and so a heynous crime protected or permitted with impunity by this priviledge Sol. I answer The Law is plaine and the priviledge of Parliament just this opposition notwithstanding No Member may be Arrested by any but as minister to that Court. for he may be arrested or his person secured by any Minister of Justice to be delivered to the Justice of that Court upon notice of their pleasure and so I take it the priviledge of Parliament is no wayes infringed he cannot be imprisoned or his person secured by any man as Minister of any inferiour Court but as Minister in this particular to the Court of Parliament there to be censured and not elsewhere Object Hence happily it may be gathered that before this Law restrictive afore specified in criminall matters there