Plea for the Lords and House of Peers, Treatise · Section 1 (2 of 2)

Plea for the Lords and House of Peers · Treatise · Section 1 (2 of 2)

p. 1510. If all Power in Government, all right of ſitting, judging, and making Laws or Ordinances in Parliament, be founded upon the immediate free election of all thoſe that are to be Governed; and if it be of neceſſity, that all who are to be ſubject and obey ought to be repreſented by thoſe who have power in Government; the Sum of (l)(l)See M. Edwards his Gangraena, part 3. p. 142. to 162.Lilburns, Overtons, and the Levellers reaſons againſt the Lords Juriſdiction; then it will of neceſſity follow, (If this be good Divinitie and Law) that p. 16the Laws of God, Moſes, and Chriſt himſelf, ſhould not bind the Jews or Chriſtians, becauſe made without their common conſents, or any to repreſent them: Then the Laws, Decrees of the Medes and Perſians, made by their Kings alone, or by them and their Princes, without any repreſentative of their People, (as is evident by Eſth. 1.13. to the end: ch. 3.8. to 15. ch. 8.8, 9, &c. c. 9.32. ch. 10.1. Ezr. 1.1, &c. ch. 4.6. to 24. ch. 5.13.17. c. 6.1. to 15. c. 7.11. to 27. Jonah 3.6, 7, 8. Dan. 6, 7, 8, 9.) were meer nullities, and not binding to the commonalty. Then the Laws of David, his Captains and Princes, concerning the Levites, Priests, Temple, &c. 1 Sam. 30.2.45. 2 Chron. c. 22. to ch. 29. with all our own antient Brit…ſh and **Lambardi Archaion. Bromton, Spelman.Saxon Laws, (made by our Kings and Nobles alone, without any Knights, Citizens or Burgeſſes elected by, or repreſenting the people; as were all our Laws and Acts before Henry the 3d his reign, both before and after the Conqueſt (as we uſually call it) though many of them yet in force and vigor,) With all antient Lawes made by Kings alone being the only Law-makers in all Nations at firſt, as **Hiſt. c. 1.Juſtine and others atteſt, and Ezr. 7.26. Eſth. 3.8. Iſay 33.22. intimate: whence they are ſtiled the Kings Laws, &c. ſhould be meer Nullities by this Doctrine, becauſe not made by the Peoples previous conſents and repreſentatives: Yea then the Orders, Votes, Ordinances, and Laws made, or conſented to by the Knights, Citizens and Burgeſſes in Parliam▪ ought not to bind any Miniſters, Women, Children, Infants, Servants, Strangers, Freeholders, Citizens, Burgeſſes, Artificers, or others, (who cannot well, properly be repreſented but by perſons of their own ſex, degrees, trade, calling; & ſo each ſex, trade, in each county, Corporation of Engl. ſhould ſend Members of their own to Parliament to repreſent them) but only ſuch Freeholders and Burgeſſes who had voices in, and gave free conſent to their Elections, not any who have no voices by Law, or diſſented from thoſe elected and returned; Yea then it will neceſſarily follow; that thoſe Counties, Cities and Boroughs whoſe Members have been injuriouſly p. 17impeached, ſuſpended, driven away, or thruſt out of the Houſe of Commons by the Objectors and the Armies practiſe, violence (contrary to all former preſidents) are abſolutely free, exempted from, and not bound by any Votes or Ordinances made, or taxes impoſed by the Commons Houſe, becauſe they have no Members to repreſent them reſiding in Parliament; and that thoſe Counties and Boroughs whoſe Knights and Burgeſſes are dead or abſent, are no wayes obliged by any Votes, Ordinances, or Grants in Parliament: And then how few in the Kingdom will or ought to yield obedience to any the Acts, Ordinances, or Votes of this preſent Parliament, or to any Mayors, Sheriffs, Aldermen, or Heads of Houſes made by their Votes and Authority, (uſually made by election heretofore) or to any Judges, Juſtices, Governours, Generals, Captains, or other Militarie Officers made by their Commiſſions or appointment, without the generality of the peoples Votes or conſent; eſpecially when above half, or three full parts of the Members were **In Auguſt 1647. & ſundry Months following, much more then ſince moſt of them ſecured and ſecluded by the Army in Decem. 1648. & ever ſince, together with the whole Houſe of Lords.abſent or driven from both Houſes, by the Objectors violence and menaces.

Theſe Anſwers premiſed, which have cut off the head of the Objectors Goliah and chief Argument againſt the Lords ſitting in Parliament; I ſhall now proceed to the proof of the Lords undeniable Right and Authority to ſit, Vote, and give Judgement in our Parliaments, though not actually elected nor ſent to them by the people, as Knights and Burgeſſes are.

1. It is evident, by the Hiſtories, Records of moſt antient and modern Kingdoms and Republikes in the world, that their Princes, Nobles, Peers and great Officers of State, have by their Original Fundamental Laws and Inſtitutions, by right of their very (g)(g)31 H. 8. c. 10. See Mr. Seldens Titles of Honour, Caſſanaeus Catalogus Gloriae Mundi: Alanſo Lopez in Nobiliario, and others who write of Nobility. Cambd. Britan. of the Nobility and Courts of Juſtice in England, and the texts of Scripture, p. 6.Nobility, Peerage, and great Offices, without any particular election of the people, a juſt right and title to ſit, conſult, Vote, enact Laws, and p. 18give Judgement in all their General Aſſemblies of State, Parliaments, Diets, Councels; as might be manifeſted by particular inſtances in the Kingdoms, Republikes, Parliaments, Diets, and General Aſſemblies of the Jews, Aegyptians, Grecians, Romans, Perſians, Ethiopians, Germans, French, Goths, Vandals, Hungarians, Bohemians, Polonians, Ruſſians, Swedes, Scythians, Tartars, Moors, Indians, Spaniards, Portugals, Danes, Saxons, Scots, Iriſh, and many others: Hence Dionyſius Halicarnaſſeus, Antiquitatum Romanorum l. 2. Sect. 2. affirms, That both hereditary and elective Kings even in the antienteſt times, CONSILIUM HABEBANT QUOD EX OPTIMATIbƲS CONSTABAT, had a Council which conſiſted of Nobles and Great men, as Homer and the moſt antient Poets atteſt, Neque (ut noſtro ſeculo) Regum priſcorum dominatus erat nimium ſui juris, ne que ab unius ſententia pendebat. Now to deny the like privilege to our Engliſh Peers and Nobles, which all Nobles, Peers in all other Kingdoms, Nations, Republikes antiently have enjoyed, and yet doe conſtantly enjoy, without exceptions or diſpute, is a groſs injury, injuſtice, over-ſight; yea a great diſhonour both to our Nobility and Nation.

Secondly, By, and in the very primitive conſtitution of our Engliſh Parliaments, for many hundred years together there were no Knights nor Burgeſſes at all, but only the King and his Nobles: after which, when elected Knights geſtes were firſt ſent to Parliament about 49 H. 3. it was granted by the Kings grace, and unanimouſly agreed by the kingdoms, peoples general conſents, that our Parliaments ſhould alwayes be conſtituted and made up, not of Knights and Burgeſſes only, (elected only by **8 H. 6. c. 7. 10 H. 6. c. 2. 32 H. 6. c. 15. Cromptons Iuriſd. p. 1, 2.3. Cook 4 Inſtit. c. 1.Freeholders & Burgeſſes, not by the generality of the vulgar people, who would now claim, uſurp this right of Election) but likewiſe of the King, the Supreme Member, by whoſe (h)(h)Cook 4 Inſtit. c. 1. p 1.10. Modus tenendi Parliamentum; Cromptons Iuriſdiction of Courts, tit. Parliament; Mr. Seldens Titles of Honour, par. 2. c. 5. See the Abridgement of the Records of the Tower.writs the Parliaments were and ought to be alwayes ſummoned, and of the Lords, Peers, Barons, (eccleſiaſtical, civil) and great p. 19Officers of the Realm, who ought of right to ſit, vote, make Laws, and give Judgement in Parliament by vertue of their Peerage, Baronies, Offices, without any election of the people: the Commons themſelves being no Parliament, judicatorie, or Law-givers alone, without the King and Lords, as Modus tenendi Parliamentorum; Sir Ed. Cook in his 4. Inſtitutes, ch. 1. Mr. Seldens Titles of Honour, part 2. ch. 5. Vowell, Cambden, Sir Thomas Smith, Cowell, Minſhaw, Crompton, with others who have written of our Engliſh Parliaments aſſert, and all our Parliament Rolls, Statutes, (i)(i)33 H. 6.16. Br. Parliam. 4. 39 E. 3.7.35. 11 H. 7.27. Br. Parl. 107. 4 H. 7.18. 7 H. 7.14. Cromptons Juriſd. f. 9. Cook 4 Inſtit. p. 15.35. Forteſc. f. 20. Dyer 92. Judge Huttons Argument of Mr. Hamdens caſe p. 22, 23.Law-books reſolve, without whoſe threefold concurrent aſſents, there is or can be no legal Act nor Ordinance of Parliament made, ſince the Commons admiſſion to vote in Parliament and aſſent to Bills, which was but of later times, out of the Kings fr…e Grace.

Thirdly, This right of theirs is confirmed by preſcription and cuſtom, from the very firſt beginning of Parliaments in this kingdom till this preſent, there being no preſident to be found in Hiſtory or Record of any one Parliament held in this Iſland ſince it was a kingdom, without the King perſonally or repreſentatively preſent (by a Protector, Cuſtos Regni, Commiſſioners) as he ought to be, or without Lords and Peers ▪ antiently ſtiled Aldermen, Heretockes, Senators, Wiſemen, Princes, Dukes, Earls, Counts, Nobles, Great men, &c. by our Hiſtorians; who make mention of their conſtant reſorting to, ſitting, voting, judging in our General Aſſemblies, and Parliamentary Councils, under theſe Titles, without the peoples Election, (for many hundreds of years before the Conquerors time) in the antienteſt Parliamentary Councils we read of under the Britons and Saxons; witneſs Beda, Ingulphus, Geoffry Monmouth, Huntingdon, Matthew Westminſter, Florentius Wigornienſis, Malmsbury, Hector Boetius, Speed, and others in their Hiſtories; Antiquitates Eccleſiae Britannicae, Spelmanni Concilia, Tom 1. Mr. Lambard his Archaion, Sir Edward Cook in his Preface to the 9. Report, and fourth Inſtitut. c. 1. M. Seldens Titles of Honor, part 2. c. 5. which I have largely manifeſted in my Truth triumphing over Falſhood, Antiquity p. 20over Novelty, p. 56. to 90. My Hiſtorical Collection of the antient Great Councils, Parliaments, &c: there being little (if any) expreſs or direct mention at all of any Knights of Shires, Citizens or Burgeſſes in any of our Parliamentarie Councils, before the Conqueſt, or in the Conquerors time, nor yet in the reigns of King William Rufus, Henry the 1. Stephen, Henry 2. Richard 1. King John, or firſt part of the reign of Henry the 3d, the **Mr. Seldens Titles of Honor, part 2. ch. 5. p. 717.firſt direct Writ of Summons for any Knights, Burgeſſes or Commons to our Parliaments, now extant, being that of Clauſe 49 H. 3. m. 10, 11. dorſo: before which no evident teſtimony can be produced for their ſitting or voting in any great Councils or Parliaments as Members, but onelyonly out of the Spurious pretended antient (though in truth late ridiculous) Treatiſe, ſtiled Modus tenendi Parliamentum, on which **4 Inſtit. p. 12.Sir Edward Cook and others moſt rely: And whereas ſome conclude, that even in the antient Saxon Great Councils, the Commons were uſually preſent as Members, being comprehended under the Titles of Sapientes, Seniores populi, Aeldermanni, &c. (which in the dialect of thoſe times ſignifie rather Lords and Great Men, than Commons or Burgeſſes, as all accord) or at leaſt wiſe under theſe phraſes, (i)(i)Spelman. Concil. p. 194.praeſentibus omnibus Ordinibus illius Gentis, cum viris quibuſdam Militaribus (rather Soldiers than knights;) of which we find mention in the Council of (l)(l)Spelman. Ibid. p. 219.Bechenceld, Ann. 697. or, omnium Sapientum, Seniorum, & POPULORUM totius Regni: coupled with theſe pre-eminent Titles of, Omnium Aldermannorum, Principum, Procerum, Comitum, who met together in a General Council under Ine, Anno 713. Or (m)(m)Spelman. p. 318.cujuſcunque Ordinis viros, in the Council of Cloveſho, An. 800. which expreſſions are now and then mentioned in ſome antient Councils and Parliaments, though rarely: yet theſe are rather conjectural or probable, than direct or punctual proofs of what they aſſert, whenas the Lords Title to ſit and vote in them is moſt direct and infallible. And if that of (n)(n)Hiſt. p. 870Ingulphus, with other our Hiſtorians, and ſome Lawyers be true, (which (o)(o)1 Inſtit. f. 168.Sir Edward Cook, and (p)(p)Titles of Honor, part 2 c. 5. ſec. 3. p 614 …15▪ &c.Mr. Selden deny) that King Alfred p. 21firſt divided the Realm into Counties, as all grant he did into Hundreds and Tithings, and erected Hundred Courts, wherein Knights of the Shire were alwaies, yet are, and ought to be elected, there could be no Knights of Shires at leaſt (if any Citizens or Burgeſſes) to ſerve in Parliament before this diviſion; though there were Earls, Dukes, Barons before his reign (who were preſent by the Kings ſummons, not peoples elections, at our Great Councils or Parliaments,) as (q)(q)Titles of Honor, part 2 c. 5. ſec. 2, 3, 4, 5.Mr. Selden, and (r)(r)Gloſſarium, tit. Comites, & Comitatus.Sir Henry Spelman undeniably manifeſt, and I have **Truth triumphing over Falſhood; An Hiſtorical Collection of the Great Councils and Parliaments of England; 2 & 3 Part of a Legal and Hiſtorical Vindication &c.elſewhere proved at large. Their ſitting, voting judging therefore in Great Councils, Parliaments, being ſo antient, clear and unqueſtionable ever ſince their firſt beginning til now; and the ſitting of Knights, Citizens, Burgeſſes by the peoples election, in our antienteſt Great Councils, Parliaments, not ſo clearly evident by History or Records as theirs: we muſt needs acknowledge, ſubſcribe to this their Right and Title; or elſe deny the Knights, Citizens, Burgeſſes rights to ſit, vote in our Great Councils, Parliaments, rather than theirs, who have not ſo antient nor clear a Title or right as they, by many hundreds of years.

Fourthly, This Right and Privilege of theirs is veſted legally in them by the very Common Law and Custom of the Realm, which binds all men; By the unanimous conſent of all our Anceſtors, and all the Commons of England from age to age aſſembled in Parliament, ſince they ſat in any Parliaments; who alwaies conſented to, deſired, and never oppoſed the Lords ſitting, voting, power or Judicature in Parliament; and by **King Johns Magna Charta in Mat. Paris. p. 247.Magna Charta it ſelf, ſigned and ratified by King John, wherein it is expreſly granted, Ad habendum COMMUNE CONCILIƲM REGNI de auxiliis aſſidendis, & de Scutagiis aſſidendis, ſubmoneri faciemus Archiepiſcopos, Epiſcopos, Abbates, Comites & MAJORES BARONES REGNI ſingulatim per Literas noſtras, &c. And in the **Proeme, & ch. 2.14.1….37.38.Great Charter of King Henry the 3. they are firſt mentioned and provided for. Hereupon King Henry the third (not long after Magna Charta was granted, and at the ſame time it was proclamed, p. 22confirmed with a moſt ſolemn Excommunication in the preſence of all the Lords, and Commons, by all the Biſhops of England, againſt the infringers thereof) ſummoning a Parliament at London in the year 1255. to aid him in his warrs in Apulia; the Earls and Barons abſolutely refuſed to give him any aſſiſtance or anſwer at all, for this reaſon; Quod omnes (Barones) tunc temporis non fuerunt juxta tenorem Magnae Chartae ſuae vocati; & ideo ſine Paribus ſuis tunc abſentibus, nullum voluerunt tunc reſponſum dare, vel Auxilium concedere vel praeſtare. (ſ)(ſ)Mar. Paris, An. 1255 p. 884, 885. Daniel. p. 172.That ALL THE BARONS were not ſummoned by him to this Parliament, as they ought to be according to the tenor of Magna Charta; whereupon they departing in diſcontent, and refuſing to ſit longer, (t)(t)Mr. St. Johns Speech concerning Shipmony, p. 33. 1 H. 4. n. 21.22, 25, 30.the Parliament was firſt adjourned, and at laſt diſſolved, And upon this very ground, among others, the Parliament of 21 R. 2. with all the Acts and proceeding therein were totally repealed and nulled by the Parliament of 1 H. 4. becauſe the Lords who adhered to the King were ſummoned by him to the Parliament, and ſome of the oppoſite party impriſoned, impeached, unſummoned; and many of the Knights of the ſhire were elected only by the Kings nomination, and Letters to the Sherifs: And the Parliament it ſelf kept by force, viris armatis, et ſagittariis immenſis, brought out of Cheſhire, as an extraordinary guard, quartered in the Kings Court at Weſtminster, and about Charing Croſſe, and the Muſe; of which (u)(u)Chron. p. 389, 390.Grafton, and other Hiſtorians write thus. That they fell into ſo great pride of the Kings favour, that they accounted the King to be as their fellow, and they ſet the Lords at nought; yet few or none of them were Gentlemen, but taken from the plough, and Cart, and other Crafts▪ And after theſe ruſtical people had a while courted, they entred into ſo great a boldneſs, that they would not let, neither within nor without the Court, to beat and ſlay the Kings good Subjects; to take from them their victuals, and pay for them little or nothing, at their pleaſure (as our free-quar…erers do now) falling at laſt to raviſh mens wives and daughters: And if any man fortuned to complain of them to the King, he was ſoon rid out of the way no man knew how, or p. 23or by whom, ſo as they did what they listed; the King not caring to doe juſtice upon them, but favouring them in their miſ-doings, confiding in them and their guards againſt any others of the kingdom, which gave the Lieges of his kingdom great matter of commotion and diſcontent. The bringing up of which guard to Weſtminſter, to force, and overawe the Parliament to effect his deſigns, is one principle Article exhibited against him by the Parliament, of 1 H. 4. wherein he was forced to reſign his Crown, and then depoſed. I pray God our new armed Guard and Courtiers at Whitehall and the Muſe (of as mean condition as thoſe) fall not by degrees to the ſelf-ſame exorbitances, contempt of the King, Lords, Parliament, and oppreſſion of the people, to their general mutining and diſcontent. In the Parliaments of 6 E. 3. N. 1. & Parl. 2, N. 5.6, 8 9, 8 E. 3. N. 5. 15 E. 3. N. 4. 17 E. 3. N. 2. 20 E. 3. N. 5. 21 E. 3. N. 4. 22 E. 3. N. 1. 25 E. 3. N. 1. 29 E. 3. N. 4. 30 E. 3. N. 1. 37 E. 3. N. 1. 42 E. 3. N. 1. 50 E. 3. N. 1. 51 E. 3. N. 3. 1 R. 2. N. 1. 2 R. 2. N. 1. 3 R. 2. N. 1. 4 R. 2. N. 1. 5 R. 2. N. 65. 6 R. 2. N. 6. 7 R. 2. N. 1. 9 R. 2. N. 1. 8 H. 4. N. 54. We find in theſe Parliament Rolls, that theſe Parliaments have been uſualy prorogued, adjourned from the days they were ſummoned to meet, and have not ſaie, nor acted at all, becauſe ſundry of the Lords (& ſome Commons) were not come, but abſent by reaſon of foul weather, ſhortneſs of warning, or other publique imployments: all their perſonal preſence in Parliament being reputed neceſſary and expedient. And 20 R. 2. N. 8. The Commons themſelves in Parliament required the King, to ſend for ſuch Biſhops and Lords who were abſent, to come to tho Parliament, before they would conſult upon what the Chancellor propounded to them in the Kings name and behalf to conſider of. To recite no more antient preſidents: In the Parliament of 2 Caroll, the Earl of Arundel not ſitting in the Parliament, being after his ſummons committed by the King to the Tower of London, about his Sons mariage, May 25. 1626. without the Lords privity and conſent▪ whereby their privileges were infringed, and the Houſe deprived of one of their p. 24Members preſence; thereupon the Houſe of Peers made this memorable Petition and Remonſtrance of their Privileges to the King.