Twelve Arduous Doubts, Text
Ardua Regni: OR, XII. Arduous Doubts Of great Concernment to the KINGDOME, Requiring a full and ſpeedy Reſolution: Propounded to M. Speaker, and the Houſe of Commons, Touching ſome of their late Proceedings againſt their own Suſpended, Ejected Members, and the Impeached Lords.
Printed in the Yeere 1648.
Twelve arduous Doubts of great Concernment to the whole Kingdome, requiring a full and ſpeedy Reſolution: Propounded to M. Speaker and the Houſe of Commons.
1 BY what Law or Authority can the Houſe of Commons alone, without the concurrent aſſent and Judgment of the King and Lords (the only proper Iudges in Parliament) eject or ſuſpend the late impeached Members, or any other, having no power of Iudicature in themſelves alone, nor authority to exanime Witneſſes upon Oath, as all other Courts of Judicature have, and being all equally impowered, and intruſted by the Countries, Cities and Burroughs for which they ſerve, and *Cromptons Iuriſdiction, p. 1, 2.ſummoned to the Parliament by Writ, onelyonly to adviſe and conſult together with the King and Lords, about the arduous Cook 4: Inſtit: c: 1:and urgent affaires of the Realme and Church of England, not to ſuſpend, nor expell one another the Houſe? And being all but equalls, whether one Iustice of Peace, of Aſſize, Iudge of the Kings Bench or Common Pleas, Commiſſioner of Oyer and Terminer, Sewers, Committee-man, Grand-Iury man, and the like, may not as lawfully diſplace & thruſt out another by their own Authority, without the Kings, Parliaments, or Lord Keepers conſents and advice, as one Commoner ſuſpend or put another out of the Commons Houſe, without the Kings and Lords aſſents, ſince Par in parem non habet imperium; and no Freeman by Magna Charta ought to be outed of his Liberties or free Customes, but by the lawfull Iudgment of his Peeres (in a legall way) or by the Law of the Land; and that in ſome Cooke 4: Inſtit: c: 1: p: 11, 24:Court of Record and Iudicature, which the Houſe of Commons alone is not; no Writs of Error nor other Records being returned before them? and they being the grand Inquiſitors only of the Realm to inquire and impeach offenders, not Iudges to cenſure or condemn them, whoſe impeachments they are onelyonly to tranſmit to the King and Lords to judge and determine.
2. Whether this ejection and ſuſpention of Members by their Fellow-Members, without confeſſion, or legall conviction upon Oath, be not a late dangerous innovation, and tyrannicall uſurpation upon the Subjects and peoples Liberties, depriveing them of the benefit and freedome of enjoying the counſell and advice of thoſe Knights, Citizens and Burgeſſes they have elected to Vote, aſſent and diſſent for them in Parliament? And whether the Houſe of Commons be able to produce any one ancient Preſident before Queen Maries Reigne, in all the Parliaments before or ſince the Conquest, to warrant their owne ſole ſuſpentions or expulſions of their owne Members? If yea, let them then produce them to ſatisfie the Kingdome, which expects an accompt of the juſtice of theſe proceedings at their hands: If nay, (as confidently they cannot) then theſe their expulſions and ſuſpenſions muſt of neceſſity be unwarrantable and meerly void in Law, and the ejected and ſuſpended Members may and ought to be re-admitted, till they can produce ſufficient evidence and proofe of their ſole Authority to ſuſpend or expell them without the Kings or Lords concurrence upon full hearing and conviction of ſome horrid crimes, which really diſable them to be Members.
Every County, City and Burrough ought *5. R. 2. Stat. 2. 0. 4. 7. H. 4. c. 14. 6 H. 6. c. 2. 32. H. 6. c. 6. 9. H. 8. c. 16. 4. E. 4. 44. b. Cromptons Iuriſdiction of Courts, Tit. Parliament.ex debito Iuſtitiae, to ſend Knights, Citizens and Burgeſſes to conſult, debate, vote, aſſent and diſſent for them in Parliament, and every of theſe ought to come to the Parliament when elected, and to continue there all the Seſſion without intermiſſion, unleſſe he can reaſonably excuſe himſelfe by ſickneſſe or otherwiſe, neither ought he to depart the Houſe, without ſpeciall licence of the Houſe (and King too anciently) firſt obtained, under paine of being amerced and otherwiſe puniſhed. And for this very reaſon every Member of Parliament during the Seſſion of Parliament and ſo many daies before and after, is priviledged and exempted from all Arreſts of his perſon, *Dyer. f. 60.becauſe he is bound perſonally and conſtantly to attend the Houſe till the Seſſion or Parliament ends, and his preſence ſo neceſſary that he cannot be ſpared, nor abſent upon any occaſion: for proof whereof you may conſult Modus Tenendi Parliamentum, Sir Edward Cook 4. Inſtitutes chap. 1. and the Authorities and Records there cited; how then their Fellow-Commoners, Knights, Citizens and Burgeſſes can exerciſe or claime any legall Authority or Juriſdiction to eject or ſuſpend any Member lawfully elected without legall triall, conviction and the concurrent judgement and conſent of the whole Parliament, (whereof the Houſe of Commons is but one branch or Member) and that upon ſuch juſt and weightie reaſons as may ſatisfie the Freeholders, Citizens, and Burgeſſes, who elected them, whose perſons they repreſent, and whoſe Attourneyes and Proxies they are, and ſo ought not to be diſcharged of their truſt without their privity by any of their Fellow-Commoners, of the juſtice of their expulſion or ſuſpenſion, is a Moot-point which concernes the whole Kingdomes Intereſt, and fit to bee reſolved by M. Speaker and the Commons of the Long robe, in a ſubſtantiall manner for the Kingdomes ſatisfaction: the rather becauſe the Speaker of the Commons Houſe cannot be removed or changed for ſickneſſe or other cauſe, but by the Kings and Lords aſſents, Cook 4. Inſtitut. pag. 8. & 39. H. 8. num. 38, 39. Baron Thorpes Caſe.
3. Seeing the Writ for "Elections of Knights, Citizens and Burgeſſes cannot be altered in any thing but by Act of Parliament, and all Elections ought to be freely and indifferently made, without any prayer or commandment of the King, by Writ, Letter or otherwiſe, or of any other, and no Letter, Order, or Ordinance can diſable any freeborn Engliſhman of full age, & not attainted of Treaſon or Felony to be choſen a Member, but onelyonly an Act of Parliament, as *4: Inſ…it: ch: … p: 10: 3: E: 1: c: 1 4: E: 4: 44:Sir Edward Cooke affirmes, and the Statutes of 5 R. 2. Stat. 2. c. 4. 7. H 4. c. 15. 32. H. 6. c. 15. determine. And ſeeing no Member anciently was or could be diſmiſſed or diſcharged from his attending the Houſe till the Seſſion or Parliament it ſelfe was diſſolved, as is apparent by all the Adjournments, Prorogations, and Diſſolutions of Parliaments and their formes. How can the Commons Houſe alone, by any clauſe of the Writ that ſummons them, or any Law or Statute extant, ſuſpend or expell any untainted Member, before legall triall and conviction in full Parliament, without the Kings and Lords conſents (with whom they are choſen, and truſted to adviſe) againſt the tenor of the Writ, and theſe Acts; and diſable any from ſitting or voting as Members, whom the Freeholders, Citizens and Burgeſſes by their free Elections, and the Lawes and Statutes of the Realm have made as free and abſolute Members in every particular as themſelves who vote them out, and their onelyonly Truſtees and Attorneyes; eſpecially ſince the Commons whom they repreſent, and from whom they derive their power and authority (as the *Cromptons Iuriſdiction, S: 1, 2:Writ recites) gave them no ſuch Commiſſion at all to eject or ſuſpend their fellow-Members, "but onelyonly to conſult of, do and aſſent unto ſuch things as ſhould be ordained by the COMMON COVNCELL (not Commons) OF THE REALME in Parliament, concerning the urgent and weighty affaires thereof for which they were ſummoned to adviſe about; of which the ejectment or ſuſpenſion of their Fellow-Commoners certainly was none, neither in the Kings nor Peoples intention, when the Parliament was firſt ſummoned, and they made their elections of thoſe they moſt confided in.
4. Whether the Statutes of 5. Eliz. c. 1. and 16. Caroli made this Parliament, for preventing the inconveniences happening by the long intermiſſion of Parliaments, which enact; That every perſon which ſhall be elected a Knight, Citizen, or Burgeſſe, or Baron for any Cinque Ports, or any Parliament hereafter to be holden, ſhall before he enter into the Parliament-Houſe, or have any voice there, openly receive and pronounce the Oath of Supremacy before the Lord Steward for the time being, or his Deputies: And that he which ſhall enter into the Parliament-Houſe without taking the ſaid Oath, SHALL BE DEEMED NO KNIGHT, CITIZEN, BURGESSE, NOR BARON for that Pailiament, NOR SHALL HAVE ANY VOICE, but ſhall be to all intents, conſtructions and purpoſes, as if he had never been elected, nor returned Knight, Citizen, Burgeſſe, or Baron for that Parliament, and ſhall Suffer ſuch paines and penalties, as if he had preſumed to ſit in the ſame without Election, returne or Authority, be not a direct reſolution and judgment in print; that no Member of the Houſe of Commons once lawfully elected and returned, can be diſabled to ſit and Vote in the Houſe by his Fellow-Commoners alone, but only by Act of Parliament, or joynt-judgement and concurrence of the King, Lords and Commons at the leaſt? And whether the taking away of the Archbiſhops, and Biſhops Votes this Parliament by a ſpeciall Act of Parliament, be not a full Declaration of the Law in this particular, that Members of Parliament (eſpecially ſuch as ſit, Vote in others rights, and behalfes) ought not to be ejected or unmembred by the Commons, Lords, or King alone, in a divided capacity, but only by Act of Parliament, or by the Kings, Lords and Commons joynt aſſents and judgements, Cook 4. Inſtit. c. 1 Dyer. f. 60. a. 19. H. 6. 63, 64.becauſe the whole Houſe of Parliament is but one entire body and Court, which cannot be deprived of the preſence or aſſiſtance of any one legall Member, but by common conſent of the whole Body and Court, and not of one branch or Eſtate alone without the other, being contrary to all rules of reaſon and juſtice, and proceedings in other Courts, where one Judge or Juſtice, or Commiſſioner cannot be unjudged, unjuſticed, uncommiſſioned by the others alone.
5. Whether the Commons late uſurpations of ſuch a power of ſuſpending and ejecting their owne Members (eſpecially without any legall hearing, and examination, viva voce, of witneſſes againſt them upon Oath, or admitting their juſt defence) be not a preſident of very dangerous conſequence, deſtructive to the very freedome and being of Parliaments and Counſells, wherein all Members Cook. 4. Instit. p. 8.ought to have equall liberty and freedome of ſpeech and advice, and to carry all things by plurality of voices, and ſtrength of argument, not by new deviſed ſuſpenſions and expulſions, ſeeing it gives the ſtrongeſt party and faction a liberty to expell the weaker, and the leſſer number backed with an armed-force, a poſſibility not only to pack and make a Houſe of what Members they thinke meet, and eject and over-Vote the greater part of the Houſe upon meer pretended offences and Miſdemeanours, and then to vote and paſſe what Acts and Ordinances they pleaſe in a thin and empty Parliament, when the major part of the Members are ſuſpended, ejected, or forced away? And whether all thoſe Counties, Cities and Burroughs, whoſe Knights, Citizens and Burgeſſes have been or may be thus ejected, and the whole Kingdome too concerned in it, be not bound in point of conſcience and duty for the maintenance of the Honour, Freedome, and fulneſſe of Parliaments, and their owne and the Kingdomes ſafety, publikely to proteſt againſt it.
6. Whether the Commons ſuſpending and ejecting of their Members by their own ſole Votes and power, gives not the King and Lords (who are Judges in Parliament) a like Authority, joyntly or ſeverally to impriſon, eject or ſuſpend the Members of the Commons Houſe without the Commons conſents as well as the Commons, who have no ſole Judicature, and are but inferiour Members and no Court of Parliament alone, and ſo juſtifies the Kings impriſonment, and impeachment of any Members in this and former Parliaments, without the Lords or Commons, who hath a greater Juriſdiction over any Members of either Houſe, being his Subjects and the *Modus tenendi Parliamentum.chiefe Members of Parliament, who ſummons and diſſolves it, then any Members have over their Fellow-Members and Subjects.
7. Whether thoſe Counties, Cities, and Burroughs whoſe choſen Knights, Citizens and Burgeſſes have been Co. 4. Inſtitut. p. 1. 25.thus illegally ſuſpended or ejected without and againſt their privities or conſents, or any revocation of that truſt and power wherewith they inveſt them, are or can in point of Law or juſtice be obliged by any Votes, Orders or Ordinances of one or both Houſes, to which themſelves, nor thoſe they elected, by reaſon of their illegall ejections or ſuſpenſions, either did or could aſſent, & to which perchance they would not have aſſented, but voted againſt and over-ruled by the majority and plurality of voices, if preſent and admitted to give their Votes? The rather, becauſe our *7: H: 6: 35: b. Bro: Waſt: 81: Dyer: 373: b.Law Books are expreſſe, 'That Tenants in ancient Demeſne were not bound by Acts of Parliament heretofore, becauſe they ſent no Knights nor Burgeſſes to the Parliament, which contribute to their wages, and ſo neither did nor could aſſent unto them by their Repreſentatives or themſelves:' &, Quod omnes tangit, ab omnibus debet approbari: the very ground why any Acts of Parliament bind all being onelyonly this, *39: E: 3: 7: Cook 4: Inſtit: c: 1: 3: E: …: 1: 4: E: 4 44:Becauſe all are conſenting to them in their Knights and Burgeſſes. But thoſe whoſe Knights and Burgeſſes are either expelled or ſuſpended the Houſe, without and againſt their good wills, neither do, nor can be legally ſaid to aſſent to any Votes, Orders or Ordinances, no nor Acts of Parliament made after their expulſions or ſuſpenſions (recorded in the Iournall Book, which abſentees are not, and therfore are intended alwayes preſent:) how then thoſe Counties, Cities, Burroughs, can be obliged by them, it behoves the Commons who ejected and ſuſpended them to declare in print, if they expect any future ſubmiſſion to their Votes, or Taxes from them, to which they did not conſent?
8. Whether, ſince every Knight, Citizen and Burgeſſe is choſen and called to attend the Parliament only by the Kings Writ, and may be amerced, fined, and otherwiſe puniſhed by virtue of the Writ it ſelf, by the Statute of 5: R: 2: c: 4: the Common Law of the Realme and cuſtome of Parliament, 3: E: 3: coram Rege, Rot: P: 3: E: 3: 13: Stamfords Pleas, f: 38: 155: Cooke 4: Inſtit: p: 15 to 22: in caſe he abſent himſelf or depart from Parliament without the Kings licenſe, unleſſe he can honeſtly excuſe himſelfe to our Lord the King. And ſince the words and forme of diſſolving Parliaments, The King licenſ…th th… Lords and Commons to depart, &c. 37: E: …: n: 34: 38: E: …: n: 18: 4…: E: 3. …: 1…: 43: E: 3: n: 34: 45: E: 3: n: 9: 13: and all diſſolutions of Parliament ſince, which intimates, that none but the King, who ſummons all Members to Parliament, can remove or diſcharge them, without the Kings conſent: whether the Commons alone, without his or the Lords privity, can lawfully ſuſpend, eject or diſcharge any of their Members, upon any pretence?
9. Whether thoſe Members who have been ejected or ſuſpended in a thin and empty, may not appeal to a full Houſe of Commons for juſtice and reſtitution, or at leaſt wiſe to the upper Houſe of Peeres, to whom the power of Judicature in Parliament appertains of ancient right, not only in the caſes of Peers, and other Commons, but even in caſes of illegall Elections and Returnes, and breach of Priviledge by impriſonment of Knights and Burgeſſes of the Commons Houſe, as is evident by *…: H: 4: Rot: Parl: n: 38: 31: H: 6: n: 25, 26, 27, 28, 29: Thorpes Caſe.ſome notable Records: And whether a Writ of Restitution lies not to the Commons Houſe to reſtore and re-admit an ejected or disfranchiſed Member, as well as an ejected or disfranchiſed Citizen, Alderman, Mayor or Common Councell-man; of which there are ſundry preſidents in Sir Iames Boggs Caſe, & M. Eſtwicks of late.
10. Whether the ejecting of the Members lately impeached in the name of the Army onelyonly, without any particular Proſecutor, perſonall ſummons, hearing, defence, or once reading, debating, or over-ruling the Anſwer and Demurrer put in by them in writing under their hands to the particular Articles of their Charge, (even whiles a Garriſon of their Proſecutors and Accuſers are reſiding at White-Hall, the Mues, and Tower of London, and a guard of them attending at the Commons door;) and the voting of M. Glyn Recorder of London and Steward of Westminster, not only out of the Houſe, but out of his Recorderſhip and Stwewardſhip (being his freehold) without ever being heard, or ſummoned to anſwer any Charge or Articles conc…rning them; and that about 7. or 8. a clock on a Saturday at night, when there were not above 51 preſent in the Houſe, and accommending others to his places, which are not in the Commons diſpoſall, be not an uſurping or exerciſing of a tranſcendent arbitrary and tyrannicall power, contrary to Magna Charta, ch. 29. and *Collected and recited in Raſtall, Tit. Accuſation: & the Petition of Right.ſundry other Statutes, the fundamentall Lawes of the Realme, the Liberties of the Subject, the Solemne League and Covenant, and ſundry Remonſtrances and Declarations of both Houſes; and an higher act of tyranny and injuſtice then ever King Charles, Strafford, Canterbury, the Councell-Table, or High Commiſſion were guilty of in the worſt times; for which thoſe Members who did it, are in point of juſtice obliged to give their abſent and diſſenting Members (farre the major part) and the ejected Members, thoſe for whom they ſerve, and the whole Kingdome ſatisfaction and reparation, to prevent the like proceedings againſt other Members, and Freemen who are no Members, who may juſtly fear far harder meaſure from them upon all occaſions, ſince they are ſo arbitrary and unjuſt towards their own deare Members, ſome whereof have deſerved as well, and done as good ſervice for the Realme and Kingdome, as any now ſitting in the Houſe.
11. Whether ſome of the Commons impeaching of their own Members, Lords and Citizens of high Treaſon, for ſitting and acting in the Houſes, or by Orders, Votes and commands of one or both Houſes, only for their ſelf-defence againſt the Armies violence, and the fugitive Speakers and Members who ingaged with them, who were not a Parliament in the Army, and not half ſo many as thoſe who continued ſitting in the Houſes, be not a dangerous and inevitable impeachment of themſelves, both Houſes of Parliament, and all thoſe who have acted under them by vertue of their Ordinances and Commiſſions, ever ſince the Kings departure from the Houſes, in military, judiciall or criminall affairs, for Traitors & high Treaſon, and a nulling of all Ordinances for Indempnity, who have no other Plea in Barre, or Juſtiſication to beare them out, or protect them againſt the King, or any other that ſhall indict, impeach, ſue or queſtion them now or hereafter, but only this, that what they ſpake, voted, ordained, did or acted, was in, or by authority of Parliament, or in obedience to the Votes, Orders, Ordinances or Commiſſions of one or both Houſes; which Plea theſe impeachments utterly ſubverting, muſt of neceſſity expoſe all and every Member of both Houſes, and all who have acted for, or adhered to them during theſe warres, to the meere mercileſſe tyranny of the King and his Cavaliers, if ever they prevaile in preſent or future times, and declare them guilty of high Treaſon; and ſo diſ-ingage and diſcourage all men from adhering to, or acting for or under them any more, to prevent the guilt and danger of high Treaſon: which ſeriouſly conſidered, may juſtly ingage both Houſes, and all thoſe who have cordially adhered to, and ſerved under them, to queſtion and impeach thoſe of high Treaſon, who were the plotters and contrivers of theſe Impeachments of ſo dangerous and deſtructive conſequence to both Houſes, and all their cordiall friends and adherents, who ſtand amazed at ſuch proceedings.
12. Whether ſome Commoners impeachment of ſeven Lords at once of High Treaſon, and ſuſpending them the Houſe, be not a plot of Cromwell and the Levellers, to deſtroy and aboliſh the Houſe of Peers, by leaving them not Members enough to ſit and make an Houſe by degrees? and what aſſurance have the few remaining unimpeached Lords, if they condemne or eject thoſe now impeached for what they did or acted in or by authority of Parliament for their owne defence, and the Houſes againſt the Army, that their turnes and impeachments will not be next, till they be all impeached, ejected and made no Houſe, ſince there is an apparent deſigne in many of the proſecutors of the Lords impeached to have no Houſe of Peers, or Lords at all to overtop them, that they may be the onelyonly Lords and Kings themſelves, and command and diſpoſe of all things at their pleaſures, as they have for the moſt part done of late, before and without the Lords concurrence. If ſo, (as is very probable) it will be wiſdome in the Houſe of Lords to conſider and prevent this Deſigne in time, before it be too late, and to make no Preſidents to deſtroy themſelves, and the very freedome and being of Parliaments and Peers, after ſo vaſt an expence of blood and treaſure to defend them againſt the King and his armed party, whoſe deſignes are now almoſt accompliſhed againſt them by thoſe Heads and Hands which of all others we did leaſt ſuſpect, who reallize and verifie this Adagy to the full, Nulla fides pietáſque viris qui caſtra ſequantur. To cloſe up all; Let the Commons conſider well of S. Pauls caution, Gal. 5. 15. But if ye bite and devoure one another, take heed that ye be not conſumed one of another.
FINIS.
End of the text · William Prynne, Twelve Arduous Doubts (1648)