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
point the Common Law formerly recited is still in force viz. That none are bound to attend the King in his Warres either within or without the Realme unlesse in case of sudden invasion unlesse by their Tenures if by their Tenures bound to attend him in forraine service as that is not cleerely granted yet you see no penalty ensues for default thereof unlesse the high Court of Parliament impose it a president of which Escuage assessed Service not compulsary in effect no service we have not had since 8. E. 2. no such service penall or compulsary without Parliament which is in effect as if you should say No such service at all without consent of Parliament But I will leave the Common Law I hope vindicated from all objections and come we to the Statute it selfe and that is that such number of Souldiers shall be imprest in all Counties of this Kingdome by the Committees for that purpose as shall be appointed by the King and both Houses of Parliament This is the substance of the Act if not the words and here you may see this Statute is tender of the ancient Birth-right and freedome of the subject for it reciteth it and withall maketh but a temporary provision for Ireland The statute for the releese of Ireland but temporary The Common Law onely in force for the Militia of thiâ— Kingdome against all persons except the high Court of Parliament Vi. infra which occasion ceasing the Common Law hath its force againe so that as to the Realme of England and elsewhere except Ireland the Common Law hath its force and is at present effectuall against all power and authority either of the King or Subject but only the supreme authority of Parliament Object But it may be hence objected that since this Act extends onely to Ireland therefore the Militia for the service of this Kingdome rests as it did before not within the letter or sence of this Act. Sol. Implication for sure the King would not have joyned in an Act if he might have done it legally before Object I answer if we should admit this which for Argument sake we onely doe there being something to be gathered by implication from the words of this Law touching the power of the Militiia as appertaining to the Parliament then the Common Law formerly recited must rule us and here it is said The Common Law That none shall be forced out of their Shires c. is intended without wages and therefore if they have pay or wages they may be legalâ—y compelled by the King to attend his service in the warres and so are the Statutes of 1 E. 3. 18. E. 3. and divers others and the opinion of that reverend Judge Thirninge in the time of H. 4. is so to be intended Sol. No Innuendo in private affairs much lesse in Acts of Parliament allowable I answer first if this should be granted it is a strange and dangerous way to expound Lawes and Statutes and to inlarge the meaning of the Law-makers with an Innuendo a thing not permitted even in private affaires much lesse to be allowed in generall and publike lawes viz. That they shall not be forced out of their Shires c. innuendo without wages by this course Lawes and Statutes shall be wrested and made a noâ—e of waxe capable of any forme or exposition but there is one great reason which will make this Objection but meere cavillation if I have not satisfie it already and that is this That one Session of Parliament viz. 1 E. 3. confirme and makes both these Lawes 1 E. 3. ca. 5. 1 E. 3. ca. 5.7 explained 18. H. 6. 19. 7. H. 7. 1 3. H. 8. 5â— recites the Common Law before remembred and confirmes it too 1 E. 3. ca. 7. and all other Statutes relating to this Law have these words or to this effect That Souldiers (a) Imprest viz. Forreine service not compâ—lsary by the law positive penall by authority of Parliament Vt supra 1 E. 3. ca. 7. may heâ— also intended of the Impressing that Militia that was not hereunto bound either by Tenuâ—e or Contract both branches of the Militia intended by this law legally raised or imprest 1 E. 3. ca. 7. intended most especially of that generall and more absolute power of the Militia not of the positive Militia viz. of those that were bound by Tenure c. imprest by the King (b) The word Commission in the statute of 1 E. 3. ca. 7. must be intended Commissioners derived from the authority of parliament not any oâ—her regall Commission so forreine service might be â—ompulsary even of those that weâ—e bound by their Tenures viz. by such Commissions Commission for Scotland or Gascoigne shall have wages Or forreine service f. 1. E. 3. 7. the one Statute is generall in the negative That they shall nor be forced out of their Shires either with wages or without as the sence is plaine to any rationaâ—l man The subsequent Law saith That the Kings souldiers shall have wages so that having wages allowed they may be compelled to serve Here seemes repugnancy or contradiction may be said To reconcile this and to manifest to the world the honour and wisedome of a Parliament notwithstanding any aspersion by the rule of law and reason you must make such exposition of any Law as in all parts may be operative and effectuall if it may be and that each Chapter of a Session of Parliament may have their genuine and proper operation why then these Statutes Ex visoâ—ribus actus an excellent way of expounding Statutes by comparing and conferring one Statute with the other are thus to be intended 1 E. 3. ca. 5. 7. Statutes differing in matter and substance viz. That 1 E. 3. ca. 5. and 7. are Statutes differing in matter and substance the one not having any relation to the other though they may so seeme upon the first view for 1 E. 3. ca. 5. extendeth onely to the Militia limited by the positive Lawes cap. 7. to the Militia imprest by authority of Parliament for forreine service which could not legally be dore without this authority as you have formerly heard and so the one doth not crosse or oppose the other which of necessity they must doe if other constructions be made for they treat of severall matters and the sence of Law makes a great disparity betweene them though there be a sound of words seeming otherwise so that 1 E. 3. ca. 7. is thus to be intended The Kings Souldiers going in forreine service shall have wages viz. The Kings souldiers legally raised by authority of Parliament and so there is no violence offered either to the letter or sence of either of these Lawes The power of the Militia to be implyed by the King in Forreine service with wages printed in Calvines Case denied for law That which is printed in Calvins Case a famous Case well knowne to Lawyers was but the
arguments of Judges â—o resolutions in this particular and iâ— they had been resolutions they had been erronious as it is manifest by what is formerly spoken and by the judgement also of this Parliament in reciting the ancient Common Law in this particular in force even at this day Much labour hath been spent in one of the Kings Declarations to put in or for and in the Statute of 1 E. 3. No necessity but forreine invasion upon the Common Law of the Statuteâ— which recites the Common Law and so to extend that Statute and the Common Law likewise to home defence but the truth of it is there is neither or nor and in the Statute of 4 H. 4. which is a weighty Statute and recites the Common Law in this particular and the Statutes confirming it for the words of this Statute are Forreine service by statute this Parliament enacted a fâ—â—tioâ—â—â— Home defence None shall be forced out of his Shire to the Kings Wars unlesse in case of necessity of suddain comming of strange enemies into the Realm thus you see all passages cleared His Majesty in one of his Declarations saith That he yeelded more willingly unto thiâ— Act for releefe of Ireland it being no matter of home defence but forreine as being also formerly controverted how groundlesse the controversie was on the adverse part for disposition of the Militia for forreine service by the regall authority you may see by what hath been formerly delivered Also we may reason thus upon this Statute viz. The Statute for releefe of Ireland that if no forces can be raised by the King for the defence of a forreine Kingdome though subject to the Crowne of England a fortiori they cannot be raised for home defence without consent of Parliament and certainely if they might be raised they must be maintained and what provision hath the Law made for them verily even none at all then it followes that Armies of men illegally raised must be illegally maintained that is to say By rapine and oppression Object Commission of Array But it is objected That the Kings forces are raised legally viz. by a Commission under the Great Seale commonly called The Commission of Array Sol. to which I answer That the Commission of Array is against the fundamentall Lawes of this Realme and is neither warranted neither by Common Law or Statute or president of former times it being against them all directly forcing men to goe out of their Counties as it is now put in practice against the ancient Common Law formerly remembred and to finde Armes contrary to the Assize limited in the Statute of Winchester and subjecting mens bodies and estates to imprisonment and other penalties imposed by Commissioners for refusall things not warranted by any Law Object But it is urged That the Law of 5 H 4. a Statute not in print upon which his Majesty grounds his Commission of Array is in force Indeed that Statute the King hath made use of in print to publike view for his sole and onely warrant of this Commission but you shall see presently how unsafe a refuge it is yea how upon the first triall of it it will not enduâ—e For in the first place I say Sol. It is absolutely repealed and that by the Statute of 21. Jacobi by which all former Statutes concerning the power of Arraying men are repealed and then surely Statutes that concerne the execution of this power must needs be also repealed as this of 5. H. 4. is 5 H. 4. Depends upon Winchester as even reason teacheth for how can any Statute touching Commissioners Arraying or arming men stand in force when the Statute of Winchester the sole Statute concerning the power of Array is by the Law repealed but to make it plaine to every capacity the Law of 5. H. 4. is onely a Law for the indemnity of Commissioners putting in execution the Statute of Winchester Now if the Statute of Winchester be nor in force this of 5. H. 4. 5. H. 4. Temporary no statute must likewise fall to the ground because it doth necessarily depend thereupon Further this Statute of 5. H. 4. was but temporary and so expired long agoe or no Statute at all but a Commission inrolled or the like never assented unto in nature of an Act of Parliament as is learnedly proved by the Remonstrance of Parliament Concerning the Commission of Array I will crave the patience to answer one Objection more particularly because it seemeth materiall and this is made by the Penner of one of the Kings Declarations Object to wit that 21. Jacobi repeales indeed the Statute of Winchester but not 5 H. 4. Refutation of the Commission of Atâ—â—y by Parliament because Winchester is onely for preservation of me peace at ordinary times as also the Asâ—ize of Armes in that Act mentioned a petty and small proportion not sutable or agreeable to extraordinary or great occasions as suddaine invasion or the like and therefore 5. H. 4. Authorizing a large Commission for the raising and leavying of Armes agreeable to any occasion ordinary or extraordinary must needs be still in force notwithstanding the repeale of Winchester they are severall Statutes to severall ends and puâ—poses and therefore the repealing of the one repeaseth not the other Sol. Winchester for deseâ—â—e ordinary and extraordiâ—â—ry I answer The Statute of Winchester is intended by the very words and sence of the Law for defence ordinary and extraordinary and so is the Judgement of a Parliament in 3. R. 2. that Winchester was made for the defence of the Kingdome and the small proportions of Assizes of Armes there mentioned are but onely mentioned for example Exâ—mpla illustrant non testringunt lâ—gem Assises or proportions other then in that Statute limited and above those proportions are plainely collected from the very words of this Act as also that Winchester did extend to other proportions was the judgement of the Parliament 3. R. 2. before specified Come we then to 5. H. 4. that recites the Statute of Winchester and confirmes it as likewise that the Statute of Winchester was made for the defence of the Kingdome ordinary The very words of 5. H. 4. shewes that Winchester was for defence ordinary and extraordinary and extraordinary appeares by the very words of this Act for defence of the Sea-coasts and that in that case the Statute of Winchester shall be observed Are the Sea-coasts defended but for feare of forreine invasion which likewise was the cause of making this Act for but the yeare before the French attempted to invade this Kingdome It may be said then Object What needs this Act of 5. H. 4. if the Statute of Winchester provided sufficiently for defence of this Kingdome I answer Sol. That this Act was made to rectifie illegall Commissions not warranted by the Statute of Winchester and this was the sole end of the making this Act. The true sence and effect of the statute
A MANUELL OR Briefe Treatise of some particular Rights and Priuiledges belonging to the High Court of PARLIAMENT Wherein is shewed how of late times they have been violated The true condition of the Militia of this Kingdome so much now controverted both by King and Parliament by the Positive Lawes discussed and debated with a briefe touch of the Royall Prerogative Neminem oportet esse sapientiorem legibus Job 8.8 Interroga pristinam generationem investiga patrum memoriam Ipsi docebunt te loquentur tibi ex corde suo proferent eloquium Hesterni enim sumus ignoramus vita nostra est sicut umbra super terram By Robert Derham of Graies-Inne Esquire London printed for Mathew Walbancke at Graies-Inne Gate 1647. To the Honourable and truly religious the Commons of England now Assembled in Parliament at Westminster May it please you THis little Treatise some may say needs no Dedication Res enim ipsa lâ—quitur The subject and matter of this Discourse pointing like the Heliotrope to the Sun unto the High and Illustrious Assembly of PARLIAMENT whose influence and favour are alone sufficient yet since it hath pleased God to raise you up in this distressed Kingdome as blessed meanes anâ— instruments of his glory and of the good of this Common-Wealth as it is certainely hoped in composing these unhappy differences by your eminent Wisedome and supreame Authority and your fidelity and constancy in this great trust committed unto you being so apparent unto all men as also this worke for the most part being extracted out of your owne learned Declarations and Remonstrances imparted to publike view I am upon these reasons emboldned to addresse my selfe unto you for protection against Calumny and detraction And although I know nothing herein contained but what is warranted by the Lawes of this Realme and by the rules of truth yet in as much as I am not hereby justified I crave your favourable censure concluding what I have written of your judicious view wholly unworthy and the Author hereof in respect of your noble and high deserts shall ever remaine Your Honours in all duty and service obliged Robert Derham The Preface to the Reader Courteous Reader IT is a true saying Pro captu Lectoris habent sua fata libelli the capacity and apprehension of the Reader is fatall to every thing committed to publike view however this being a legall Treatise it must stand or fall by the judgement of the wise and learned in the Lawes of this Kingdome The summe of this Discourse is grounded upon the Positive Lawes termed of late times the knowne Lawes I have chosen to enter into Combate with our Adversaries at their owne Weapons as they please to chuse them though happily it may prove disadvantagious and this is done with moderation I hope to silence if not satisfie the obstinate Take this worke out of the Loome and withall Anatomize it with all the curious and cunning dissections of Art and wit spare it not yet I am confident it shall abide firme against all opposition I will conclude with this Corollarie Edicite mundo quod mundus est vanitas veritas autem est magna prevalebit Farewell A Manuell or briefe Treatise of some particular Rights and Priviledges belonging to the High Court of PARLIAMENT I Am injoyned out of my duty to my Country and my zeale to the Publike good to compile this little Treatise little in regard of the Author great in regard of the Subject matter wherein I protest before the Supreme Judge of Heaven and Earth to deliver the truth and nothing but the truth according to the Lawes of this Realme established whose unparalleld distractions both in Church and Common-wealth I cannot but with great griefe consider Quis talia fando temperet a Lachrymis The Mother and Nurse unto us all this formerly most happy and blessed Nation now personated in the sable habit of a most mournefull widow Quae corrupit ecusos fletu which hath lost her glorious Lampes even her eyes with weeping Sparso quoque infanebrem modum crine terribilis Terrible to beholders with disheveled haire making moane for her irreparable losses attending the funeral Obsequies of her deare Children requesteth nay requireth us all to bewaile her miseries and to redresse her disperate calamities But to leave off preambles as tedious and to come to the Discourse intended I doe with sincerity of heart detesting the Doctrine and Practises of Brownists Anabaptists Sectarists and as one that truely honoureth the true reformed Protestant Religion lament and much deplore the sorrowfull condition of this Kingdome the amiable Lawes and Goverment being now become despicable through the violation or neglect at least of the fundamentals I meane the just and due Rights and Priviledges of that High and Supreame Court of Parliament in whose safety and flourishing estate consisteth the happinesse of this Common-wealth and in the contempt of that illustrious Assembly this renowned Nation will of free-borne Subjects become slaves and degenerate from those noble resolutions which their Ancestors did inherite For to let passe the disturbances in this Church of England and the Government thereof and the meanes to redresse the same being not properly within my cognisance or knowledge and peradventure permitted by Divine Providence to evidence to the world the errours and folly even of his owne Ministers and the unsearchable Wisedome of God even past mans finding our My purpose is onely at this time to treat of the High Court of Parliament and the Lawes and Liberties of the Subject in them represented whose infallibility I shall nor labour to maintaine as being men of the like passions that we are but the Venerable estimation which the wisedome of the Law hath evermore attributed unto them not in respect of their Persons but of the Government and Justice which in them primitively resides whose gravity prudence and integrity hath been in all Ages much admired and their judgements and resolutions till these unhappy timâ—s held indisputable for inquire of your Ancestors if the gray-headed Common Law whose funeralls are now in the judgement of man approaching through the popular dis-estimation of this High Court did not here receive if not its first subsistence yet its power and glorious estate even to these times The Kings just and due Prerogatives if not here first framed yet from time to time here strengthened and corroborated witnesse that ancient Statute called Prerogativa Regis made Anno 17. E. 2. This Station is declaratory of the Prerogative not Introductive wherein certaine of the most weighty and great Prerogatives pertaining to the Crowne are contained and declared as saith that learned Judge Stamford The rich Gemmes and inestimable treasure both in Church and State from this Fountaine derivatively issuing and proceeding and shall now the honour of this Court so ancient be deserted And shall it not with the lives and estates of all noble minded English-men be maintained as sacred and as
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
Members of either Houses sweepes them all away from the service of the Common Wealth makes that renowned Assembly a meere desolate structure Formall causes of Parliaments The Kings negative voice in the next place as one blow takes away the formall cause of Parliaments that is to say the Laws and Government he is by this Doctrine become the Legislator onely the Members the Lords and Commons are but inconsiderable persons they fill up roomes like Pageants for shew onely they out of whose mouthes did flow the Oracles of wisedome are not now so to be reputed the Kings voice now is a Law at least if he so please no law shall be enacted the concurrence of the Prince in establishing any Law be it never so necessary is now but a politicke mercy or a mercifull policy as some write not without great perill to be altered but simply to binde the Prince to ratifie or confirme any Law is repugnant to Monarchy Me thinkes I see this great Body Politick being desperately wounded with illegall pressures ready to expire call for her Phisitians to minister wholsome Medicines unto her Alas they cannot come they are slaire with the Sword they are imprisoned they stand at the Seat of Judgement if not capitall The Phisick that should be given unto her Nota. those Cordiall and Medicinall laws for â—he restitution of health see what is likewâ—se become of them This little worme at the root of Government a negative voice devoures all this sweet smelling and amiable Rose hath at the root a Worme which consumeth all whatsoever affordeth delight or comfort Quid delubra juvant est mollis flama medullas What doe the high towred conceits of Parliaments availe this soft fire consumeth by degrees Quod non violento synus Aestu ex'unt That which the great combustions the rage of fire and sword could not accomplish it wasteth thy very marrow and spirits I meane the foule enlivening Lawes but this onely by way of supposition Thus you see the Tree by its fruit The efficient and finall causes of Parliaments we will joyne together Efficient cause of Parliaments the efficient cause of calling Parliaments is the urgent affaires of the Kingdome as the words of the Writ are for the calling of Parliaments not the issuing of the Writ by the King that is onely instrumentall and you may see by the ancient Law of this Land Parliaments are to be called so often as need shall require 4 E. 3. 14. 36. E. 3. 10. by two Statutes in the Raigne of Edw. 3. Parliaments are to be holden once in every yeare and oftner if need shall be Statutes for ought that I know yet in force With what face then can these stupid ignorant Advocates on the other part proclaime to the world the passing of this Bill for Trienniall Parliaments an Act of transcendent grace and favour when you see it is an Act of right and justice to call them once every yeare yea oftner if need shall require Object But me thinkes I heare it whispered Thâ— this Act for Trienniall-Parliaments is an Act of speciall grace and favour notwithstanding any thing yet spoken as appeares by the very words of the Act for by this Statute it is provided That in case the King shall not issue forth Writs for the calling of Parliaments within the time prefixed by the Act that then every County and Barrough shall have power to proceed to election of their Knights and Burgessâ—s in such manner as the Act hath appointed Also it appeareth further that this Sâ—ssion of Parliament so to be called shall continue for the space of fifty daies without any power in the King to dissolve it Not calling Parliaments or when called the power of dissolution no Prerogative because against these statutes Vi. Devant in le prerogative Parliaments to be called without the King yea when called not to be dissolved by him for such a time Sure Regall Prerogatives conferred on the Subject I answer Even as the Sunne disperseth the mists of the night so in the presence of truth all these foggy vapours of errour will suddainely vanish Sol. for as to the first the calling of Parliaments doth it not appeare that they are to be holden once every yeare yea oftner if need shall be by two ancient Statutes yet in force Nota. Which Statutes amongst other good Lawes the King at his Coronation sweareth to observe and keepe How can Parliament be holden if not called therefore the King is bound of right to call them For the second That they shall not be dissolved for fifty daies by the King I answer Parols font plea as the Lawyers say Are not the words Parliaments shall be holden once in every yeare Holding of Parliaments implies continuance of them Is the dissolution of Parliaments a holding of them within the letter or sence of either of these Lawes Nay further I say Nota. They shall be holden that is to say By the ancient law of Edward the Confessor the Parliament ought not to be determined before every bill put in to be discussed 〈◊〉 for difficulty adjourned otherwise c. Finall cause of Parliament continued not for fifty daies but for fifty yeares for ought that I know within the very words of either of these Lawes if the affaires of the Kingdome shall so require for otherwise they are not holden Cum effectu as these Statutes intend plainly to any mans judgement that is rationall Thus you see an end a dissolution of these malignant Objections but no dissolution of Parliaments I hasten the finall cause of Parliaments is to make good lawes to redresse grievances to procure peace but alas the Dove brings not to us the Olive branch of Peace the voice af the Tirtle is not heard in our Land but the waters and inundations are increased so high that they have even drowned the Arke of God the Peace of God both in Church and Common Wealth the urgent affaires of the Kingdome are laid aside Me thinks the answer of Jehu in the Scripture is very pertinent to our purpose No peace so long as sinne aboundeth What hast thou to doe with peace turne thee behind me What peace so long as thy abhominations continue and are so many The bloud of so many of the Saints shed and spilt upon the ground doth cry for vengeance and the wrath of God is incensed against us Note these particulars Observe judicious Reader from this precedent discourse these few particulars apparent and unanswerable and as the very minde of the Author of this worke reflect and contemplate thereupon The first is That the root and originall of all these troubles was the Kings disserting the Houses of Parliament under pretence of Tumult and in security of his Person but the truth is evident enough it was because he could not prevaile in that evill Counsell which then was given him upon suggestion of I know not what crimes to take