Plea for the Lords, Text (2 of 2)

Plea for the Lords · Text (2 of 2)

p. 315Fiftly, there can be no legall triall or Judgement given in Parl: without examination of witneſſes upon oath, as in all other Courts of juſtice. But the Houſe of Peers alone have power to give, and examine witneſſes upon **7 R. 2. par. 2… n. 16.Oath; and the whole Houſe of Commons no ſuch power, but to take Informations without Oath, which they nor their Committees cannot adminiſter, unleſſe by Order and Commiſſion p. 32from the Lords: Therefore the power of judicature in Parl is inherent only in the Houſe of Poers, and not in the Commons Houſe.

6Sixtly, it is a rule both of Law and common Juſtice, **Littleton, ſect. 212. Coke, ibid. 4 E. 3, 7. 2 H. 6. 10. 14 H. 4. 8. 2 R. 2. 29. 5 H. 7. 8. Bur. Challeng. 23, 42, 71that no man be an informer, proſecutor, and judge too of the perſons proſecuted, and informed againſt, it being againſt all grounds of juſtice. But the Cōmons in all ancient, and in this preſent Parl: have been informers and proſecutors (in nature of attCokes 4. Inſtit. p. 24. Grand Inqueſt▪ to which ſome compare them) ſummoned from all parts of the Kingdom to preſent publick grievances and Delinquents to the King and Peers for their redreſſe) witneſs their many impeachments, accuſations and complaints ſent up and proſecuted by them in **50 E. 3. n. 5. to 37. 21 R. 2. n. 14, 15, 16. 28 H. 6. n. 14, to 52 31 H. 6. n. 45, 64. 38 H. 6. n. 38.former parl: & this to the Lords not only againſt Peers, but Commoners, of which there are hundreds of preſidents this very Parl: Therefore the Houſe of Lords hath the proper right of judicatory veſted in them, not the Commons; who are rather informers, proſecutors and Grand-Jury men, to inform and impeach, then Judges to hear, cenſure, or determine.

7Seventhly, thoſe who are proper Judges in any Court of juſtice, whiles the cauſe is judging ſit in their **25 E. 3. c. 2. 20 R 2. c. 3. 6 R. 2. c. 5. 14 H. 6. c. 3. … R. 2. c. 3. 2 R. 2. c. 10.Robes, covered on the bench; not ſtand bare at the bar; ſwear & examine the witneſſes in the cauſe, not produce them or manage the evidence, & when the cauſe is fully heard, argue and debate the buſineſſe between themſelves and give the definitive ſentence. But in caſes that are to be tried & judged in Parl: the Lords only ſit covered and in their Robes upon the Bench, but the Comons ſtand bare at the Bar: the Lords only ſwear and examine the witneſſes and judge of their teſtimony: the Commons only uuCoke 4. Inſtit. p. 24.produce the witneſſes, or preſſe and manage the evidence; and when the buſineſſe is fully heard, the Lords only debate the buſineſſe among themſelves and give the finall Sentence and Judgment without the Cōmons; and that both in caſes of Comoners and Peers. Therefore the Lords, or houſe of Peers, are ſole Judges in Parl: not the Cōmons.

And that they are and alwaies have been ſo de facto (unleſſe by way of Bil of Attainder or in ſuch extraordinary caſes when their concurrence hath been deſired) I ſhall prove by moſt clear and infallible evidence. To pretermit the**Mr. Seldens Titles of Honor, part. 7. c. 5, p. 632, 633, 705, 706. judgment of the Earls & Barons in Parl: in the caſe of Earl Goodwin for the murther of Alfred in K. Edw. Conf. reign before the Conquest, and the judgment of the Barons the Lords in Parl: againſt Tho: Becket Arch-b. of Can. in K. Hen. 2. raign, cited by M. Selden, of which you may chuſe the ſame, with the punctuall authority of Andr. Horne in his Mirror of Justices, c. 1. § 2. forecited.

p. 33Firſt, in Pleas of the Crown, and other Common Pleas plainly …able in Parl: as well between Cōmoners as Peers; the Pleas have been exhibited, heard, and judgement given upon them by the King and Lords joyntly, or the King alone, by which the Lords aſſent, or by the Lords themſelves, without the Cōmons; as is evident by the Parli: Rolls and Pleas in Parl: in K. Ed. 1. 2. 3. 4. Ric. 2. Hen. 4. 5. 6. where there are hundreds of inſtances to confirm it: ſome of them printed in Sir Edw. Cokes, 3 Inſtit: c. 1, 2. and M. St Johns Argument in Law upon the Bill of Attainder againſt the Earl of Strafford.

2Secondly, in all**18 E. 1. rot. Parl. t. 4 E. 3. n. 13. 21 E. 3. n. 65. 28 E. 3. n. 11, 12. 50 E. 3. n. 48. 1 R. 2. n. 28, 29, 104. 2 R. 2. n. 36, 37, 31, 32, 33. Parl. 2. n. 21, to 27. 3 R. 2. n. 19, 20, 21. 7 R. 2. Parl. 2. n. 23, 24. 8 R. 2. n. 14, 15. 13 R. 2. n. 15, 16. 15 R. 2. 22, 23. 17 R. 2. n. 13, 14, 15, 19. 18 R. 2. n. 11, 10 16. 21 R. 2. n. 25, 55, to 66. 1 H. 4. n. 91. 2 H. 4 n. 47, 48. 5 H. 4. n. 40. 6 H. 4. n. 31, 61, 62. 3 H. 5. n. 19. 10 H. 6. n. 51. Writs of Error brought in Parl: by Peers or Cōmoners to reverſe any erroneous judgements touching their reall or perſonall Eſtates, lives, or attainders, The KING & LORDS ONLY ARE JUDGES, and the proceedings upon ſuch Writs, are ONLY BEFORE THE LORDS IN THE UPPER House, ſecundum Legem & co… ſuetudinem Parliamenti. So Sr Ed. Coke in direct terms, in his 4. Inſtit. p. 21, 22, 23. where he produceth divers preſidents of ſuch writs of Error out of the Parl: Rolls, and preſent experience manifeſts as much in all the the writs of Error brought this Parl: adjudged and determined by the King and Lords alone, without the privity of interpoſition of the Cōmons. A truth ſo clear that Lilburne himſelf in his Argument againſt the Lords Juriſidiction confeſſeth it, and the Parl: Rolls quoted in the Margine, with ſundry others reſolve paſt all diſpute. If then the Lords be the ſole Judges in all writs of Error concerning the goods, estates, free-holds, inheritances, lives, and attainders of the Commoners of England, notwithſtanding the ſtatute of Magna Charta, c. 29. No Free-man ſhall be taken, or impriſoned, or diſſeiſed of his Free-holder Liberties, of Free-cuſtomes, nor outlawed, nor exiled, neither will we paſſe upon him, nor condemn him, but by THE LAWFUL IUDGMENT OF HIS PEERS, &c. (the grand and principall objection againſt their Iudicature) then by the ſelf-ſame reaſon they are and may lawfully proceed againſt them in all other civill or criminall cauſes, (eſpecially breaches of ther own priviledges of which themſelves are the ſole and only Iudges, the caſes of Lilburne and Overton) properly triable in Parliament.

3Thirdly, in all Petitions and complaints againſt Cōmoners for redreſſe of grievances, the King and Lords are the ſole and proper Tuns and Judges, not the Cōmoners, as appears by all the Parl: Rolls in former times; wherein we find in the beginning of every Parl: ſome Aſſiſtants of the Lords houſe appointed by them to be receivers of p. 34the Petitions of England, Ireland, Wales & Scotland; others appointed receivers of the Petitions of Gaſcoyne, & other parts beyond the Seas, and the Iſles of Jerſy and Gernſey, &c. And ſome Lords appointed tryers of thoſe Petitions, who had power given them to call the L^d Chancellor, Treaſurer, Steward, Chamberlain, the Judges, Kings Serjeants and others to their aſſiſtance; preſcribing alſo by what day the Petitions ſhould all be exhibited, and the place where they ſhould be examined. All particular perſons uſually preſenting all their grievances and petitions immediately to the King & Lords (without any addreſſe to the Cōmons by Petitions, as now of late) there being no Petitions of record in the Parl: Rolls addreſſed immediately and originally to the Commons, that I can find. And towards the end of the Parl: Rolls, there is this Title uſually. The Petitions of the Cōmoners (containing all Petitions of the Cōmons houſe for redreſſe of publick or particular injuries and grievances) preſented to the King in the Lords houſe, and anſwered by the King alone, with the conſent of the Prelats Counts & Barons: with which anſwers the Commons reſted ſatisfied, whether granted or denied, as ofttimes they were. Of w^ch you may read ſomthing in S^r E. Cokes 4. Inſtit. p. 16. & more in the Records themſelves.

4Fourthly, in all criminal cauſes in Parl: by way of accuſation, impeachment or indictment, the King & Lords were the proper Judges; as is evident by Placita Coronae coram Domino Rege in Parliamente ſue, at the end of each Parliam: Roll; wherein the King and Lords, or only the King and Lords alone generally gave Iudgement of impriſonment, fine, baniſhment and death it ſelf, even againſt Cōmoners themſelves without the Commons; the thing now principally controverted and denied: for proof whereof I ſhall cite ſome few punctuall preſidents and records, in ſtead of many which might be inſiſted on.

In the famous Parl: held at ClaredonxxMat. Paris p. 6 97. M. Seldens Titles of Honor, part. 2. c 5 p. 703. 705 under K. Hen. 2. …. D. 1164. there was a recognition made of all the ancient Cuſtoms of the Realm, which all the Prelats, Abbots, Earls, Barons and Nobles ſwore firmly to obſerve to the King and his Succeſſors, whereof this was one, That the Arch-b. Biſhops, and other Clergy men who held of the King in Capite by Barony; Sicut caeteri Barones debent intereſſe JVDCIIS CVRIAE REGIS CVM BARONIBVS,**Petrus Bleſ…ſis, De Inſtit. Epiſcopi, Bibl: Patrum; tom. 12. par. 2. p. 447 quouſque perveniatur AD DIMINVTIONEM MEMBRORVM, VEL AD MORTEM: which proves the power and right of Iudicature even in thoſe times and long before, to be ſetled in the Barons as well in Parliament, as in the Sheriffs Tourne, and that in caſe of Commoners as Peers.

p. 35In the Parliament of 4. E. 3. num. 1. 2. 3. 4. 5. Roger Mortimer, Earle of March, a Peer, Sir Simon Bereford, Knight, of Councell and aſſiſtant to the ſaid Earle John Mautravers Boſe de Bayous, and Iohn Deverall, for being guilty of the death of Edward Earle of Kent, Thomas Gournay, VVilliam of Ocle, for murthering King Edward the ſecond, after his depoſition, were attainted and condemned of High treaſon, and ſome of them then in cu…odie accordingly executed by Iudgement of the Lords and Peeres alone; who AS JUDGES OF THE LAW by the Kings conſent gave judgement of death againſt them; as the Parliament Rolls more largely relate.

It is true indeed, that after theſe Judgements given the LORDS the ſame Parliament, num. 6. entred this Proteſtation; **See Cooke, 2. Inſtit. p. 50.That alboit the Lords, and Peers of the Realme, AS JUDGES OF THE PARLIAMENT, in the preſence of the King had taken upon them to give Judgement of ſuch who were NO PEERS OF THE REALM, that he eafter NO PEERS ſhould be compelled to give Judgement ON ANY OTHERS WHO WERE NOT THEIR PEERS, according to the Law.

From this Proteſtation of the Lord (which Lilburne principally inſiſts on) hee and**Cooke, 2. Inſtit. p. 50. ſome others conolude; that the Peers in Parliament have no right at all to impriſon, fine, judge, or paſſe ſentence of death againſt any Commoner for any offence, no, not for breach of their own Priviledges) but only the Commons.

To which objection I anſwer; Firſt, that this is no Act of Parliament, as Sir Edwards Cooke miſtakes, but a bare Proteſtation of the Lords, without Kings or Common… aſſent and that neither the Houſe of Commons nor the Commoners then attainted of Treaſon and judged to death by the Lords, ever demurred or excepted againſt their Juriſdiction, as Lilburne and Overton doe, but acknowledged and ſubmitted to it. Secondly, That in this very Proteſtation the Lords profeſſe and juſtifie their right of BEING JVDGES in Parliament without admitting or acknowledging any joynt or ſole right of Judicature with them in Parliament in the Commons. Thirdly, That this Proteſtation was meerly voluntary, not in derogation, but preſervation of their own Honour and Peerage, and the Parliaments too; and the ſubſtance of it no more, then this; That the Lords in Parliament ſhould not bee conſtrained againſt their p. 36wills by the Kings command, and in his preſence, to give judgement of death in ordinary caſes of treaſon or Felony in the high Court of Parliament, againſt ſuch who were no Peers, who in ſuch caſe… **Magn. Ch. c. 29. 25. E. 3. c. 2. 4. 28. E. 3. c. 3. 37. E. 3. c. 8. 42. E. 3. c. 3. Cooke 2. Inſtit. p. 50, 51.by the Law might, and ought to be tried in the Kings Courts at VVeſtminſter, or before the Iuſtices of Oyer and Terminer by a Iury of their equalls; but onelyonly in ſuch caſes which could not well be tried elſe-where, and were proper for their Judgement in Parliament, This is the whole ſumme and ſence of their proteſtation. To argue therefore from hence, That they cannot paſſe ſentence, or judgement againſt any Commoners in any caſe proper for their Judicature in Parliament, becauſe they proteſted only againſt being COMPELLED to g…ve Judgement againſt ſuch as were no Peers, in caſes triable elſe-where, and not proper for their tribunall (as the Objectors hence conclude) is quite to miſtake their meaning, and to ſpeak rather non-ſence, then reaſon or Law. Fourthly, This Proteſtation was made only againſt the Lords giving ſentence in Felony and Treaſon, and that in the Kings own preſence in Parliament (who uſually pronounced the Judgement himſelf, with the Lords aſſent and did not charge the Lords to pronounce it, as here hee did) not againſt ſentencing, fining and impriſoning any Commoner for rayling and Lybelling againſt their Perſons. Juriſdiction, and proceedings; refuſing to anſwer, and contemning their Authority to their faces at the Barre; and appealing from their Judicature in caſe of breach of Priviledge of which themſelves alone and no others are or can be Judges; the caſe of Lilburne and Overton; whoſe commitments are warranted by hundreds of Preſidents, in this and former Parliaments. Therefore for them to apply this Proteſtation to their caſes with which it hath no Analogy, is a manifeſtation of their injudiciouſneſſe and folly rather then a juſtification of their Libellous Invectives againſt the Lords injuſtice. Laſtly, this Proteſtation did not forecloſe the Lords in this or future Parliaments to give Judgement againſt Commoners in other caſes of Felony and Treaſon, even without the Commons: To prove this by ſome inſtances.

In the Parliament of 1. H. 4. Placita Coronae, num. 11. to 17. Iohn Hall being in cuſtody of the Marſhall of England, and brought by him before the Lords in Parliament and there charged by him, by VValter Cl…pton, Lord chiefe Juſtice, by the Kings command, with having a hand in the murther of the Duke of p. 37Gloceſter who was ſmothered to death with a featherbed at Calayes by King Richard the ſeconds command, the whole relation whereof he confeſſed at large, and put in writing before James Billing ford, Clerk of the Crown, which was read before the Lords, upon reading whereof, the King and ALL THE TEMPORALL LORDS IN PARLIAM…NT reſolved that the ſaid Iohn Hall by his own confeſſion deſerved to have as hard a death as they could adjudge him to, becauſe the Duke of Gloceſter was ſo high a Perſon, and thereupon TOVTE LES SEIGNEIURS TEMPORELZ per aſſent du ROY ADJVGGER…N… all the temporall Lords by aſſent of the King AJVDGED that the ſaid Joh. Hall ſhould be drawn from Tower hill unto the Gallows at Tiburn, & there kenelled; & his bowels laid before him; and after he ſhould be hanged, beheaded, and quartered, and his head ſent to Calayes where the murther was committed, and his quarters ſent to other places where the King ſhould pleaſe; and thereupon command was given to the Marſhall of England to make execution accordingly; and it was ſo done the ſame day.

Lo here the Lords in Parliament g…ve judgement againſt a Commoner in caſe of a murther done at Calayes, (and ſo not triable at the Kings Bench, but in Parliament) and paſſe a judgement of High treaſon on him, for murthering of a great Peere only.

And which is moſt remarkable, all the Commons In this very Parliaments of 1 H. 4. nu. 70. Nov 3. made their Protestation, and further remonſtrated to the King,Nota. Com: LES JVGGEMENTS DV PARLEMENT APEIRTEIGNENT SOVLEMENT AV ROY ET AS SEIGNEIVRS, ET NIENT AS COMMVNES: how the judgement of the Parl. appertained ONLY TO THE KING and TO THE LORDS, and NOT VNTOUNTO THE COMMONS; except in caſe it ſhould pleaſe the King OF HIS SPECIALL GRACE to ſhew unto them the ſaid JVDGEMENTS: purcaſe de eux, que null record ſoit fait in Parlement, encoutreles ditz Communes quill ſoit ou ſerront parties aſcunes juggements donez ouadoues en Apres in Parlement. Whereunto it was anſwered by the Archbiſh. of Canterbury by the Kings command, how the ſaid Commoners are petitioners, and demanders, and that THE KING & THE LORDS de tont temps ont eves et aueront DE DROIT LES JVGGEMENT EN PARLEMENT, en manere come me me les communes ount monſtres. HAVE ALVVAYES HAD AND SHALL HAVE OF RIGHT THE JVDGEMENTS IN PARLIAMENT, in manner as the Commons themſelves have declared, except in making Statutes or in p. 38making Grants and Subſidies, or ſuch things for the common profit of the Realm, wherein the King will have eſpecially their advice, and aſſent; and that this order of proceeding ſhall be held and kept IN ALL TIMES TO COME.

By which record in Parliament it is apparent, by the Houſe of Commons own confeſſion, Firſt that the Judgements in Parliament even in caſes of Commoners appertain ONLY TO THE KING and LORDS, in the affirmative. Secondly, that they appertain NOT TO THE COMMONS in the negative. Thirdly that the King and LORDS HAVE ALWAYES HAD and ENJOYED THE RIGHT of Judgements in Parliament. Fourthly, that they ſhould alwayes hold and enjoy this Right, IN ALL TIMES TO COME. Fifthly that the Commons ſpeciall adviſe and aſſent was and is required by the King in Parliament, only in making of Statutes, Grants and Subſidies, and ſuch like things for the common profit of the Realm.

So full and punctuall a Parliamentary deciſion of the preſent controverſie, as is uncapable of any anſwer or evaſion.

In the Parliament Roll of 17.yySee Cook 3. Inſtit. c. 2. p. 22. R. 2. num. 20. 21. John Duke of Gayen and of Lancaster, Steward of England, and Thomas Duke of Gloceſter, Conſtable of England, the Kings Uncles, complained to the King, that Thomas Talbot Knight, (a Commoner and no Peere) with other his adherents, conſpired the death of the ſaid Duke in divers parts of Cheſhire, as the ſame was confeſſed and well known, and prayed that the Parliament might judge of the faul…, (to wit, whether it were treaſon according to the clauſe of the Statute of 25, E. 3. c. 2. It is accorded that if any other caſe ſuppoſed Treaſon which is not above ſpecified, doth happen before any Juſtices, the Juſtices ſhall tarry without any going to judgement of the Treaſon till the cauſe be ſhewed and declared before the King and His Parliament, whether it ought to be judged Treaſon or Felony) whereupon the KING and THE LORDS IN THE PARLIAMEN… (without the Commons though in caſe of a Commoner) ADJVDGED THE SAME FACT TO BE OPEN and HIGH TREASON; and thereupon they award two writs, the one to the Sheriffes of Darby, to take the body of the ſaid Sir Thomas, retornable in the Kings Bench, in the monethmonth of Eaſter then next following; and open Proclamation was made in Weſtminster Hall, upon the Sheriffes return, and the next coming in of the ſaid Sir Thomas that the ſame Thomas SHOVLD BE CONVICTED OF TREASON, and incurre the p. 39loſſe and pain of the ſame; and that all ſuch as ſhould receive him after the ſame Proclamation, ſhould incurre the ſame loſſe and paine. Sirzz3. Inſtit. p. 22. Edward Cooke; relating this Judgement, addes his own opinion at the end: That this judgement wanting the aſſent of the Commons was no Declaration, (of Treaſon, within the Act of 25. E. …. becauſe it was not by the King and his Parliament according to this Act, but by the King and Lords ONLY.

But the record of Parliament, and the Judges and Commons then admitted it to be good; and proceſſe iſſued out, and judgement was given accordingly: the parties concerned taking no ſuch exceptions to it.See 21. R. 2. n. 15. 16. So that this Record is a pregnant evidence. That the King and Lords are the ſole Judges in Parliament, in the caſe of Commoners, even in declaring and judging, what is or what is not treaſon, within the Statute of 25. E. 3. becauſe the Commons are no Iudges in Parliament, and ſo cannot Iudge or declare (unles in a legiſlative way by Act of Parliament) what is Treaſon or Pelony, but the King and Lords alone.

To put this out of queſtion, I ſhall cite one notable record more to this purpoſe. (a) Cooke. 3. Inſtit. p. 22. &c. 1. p. 10.In the Parliament of 5. H. 4. 11. 12. on the 8. of February the Earle of Northumberland came before the King Lords and Commons in Parliament, and by his Petition to the King acknowledged that he had done againſt his Lawes and alegiance, and eſpecially for gather of power and giving of Liveries, for which he put himſelfe upon the Kings grace and prayed pardon; the rather, for that upon the Kings Letters, he yielded himſelfe, and came to the King at Yorke; whereas he might have kept himſelfe away. Which Petition by the Kings command was delivered to the Juſtices to be examined, and to have their counſell and advice therein: Whereupon the LORDS made a Proteſtation que le Juggement appertient aeux tout ſoulement THAT THE JUDGEMENT APPERTAINED ONLY TO THEM. And after the ſaid Petition being read and conſidered before the King and the ſaid Lords as Peers of Parliament, a queux tells …uggementz apperteignent DE DROIT. TO WHOM SUCH JUDGEMENT APPERTAINED OF RIGHT, having had by the Kings command, competent deliberation thereupon: and having alſo heard and conſidered as well the Statute made in the 25. yeare of King Edward the Kings Grand-father that now is, concerning the Declaration of treaſon, as the Statutes of Liveries made in this Kings raigne, ADJUDGED, that that which was done by the ſaid Earle contained within p. 40his Petition, was neither Treaſon, nor Felony, but Treſpas; for which the ſaid Earle ought to make fine and ranſome at the will of the King. Whereupon the ſaid Earle moſt humbly thanked our Lord the King, and the ſayd Lords his Peers of Parliament FOR THEIR RIGHTFULL JUDGEMENT, and the Commoners for their good affectious and diligence uſed and ſhewen in this behalfe; And the ſaid Earle further prayed the King, that in aſſurance of theſe matters, to remove all jealouſies and evill ſuſpitions, that he might be ſworn a new in the preſence of the King, the Lords and Commons in Parliament; and the ſaid Earle tooke an Oath upon the Croſier of the Archbiſhop of Canterbury, to be a faithfull and loyall lige to our Lord the King, the Prince his ſonne, and to the heires of his body inheritable to the Crown according to the Lawes of England: Whereupon the King out of his grace pardoned him his fine and rauſome for the treſpas aforeſaid. After which num. 17. the Lords ſpirituall and temporall, humbly thanked the King ſitting in his royall Throne in the white Chamber, for his grace and pardon to the ſaid Earle of his fine and ranſome: and likewiſe the Commons thanked THE LORDS SPIRITUALL and TEMPORALL FOR THE GOOD and JUST JUDGEMENT THEY HAD GIVEN AS PEERS OF PARLIAMENT TO THE SAID EARLE.

From this memorable record I ſhall obſerve, Firſt that though this Declaration of this Earles caſe was made by his Petition in the preſence of the King, Lords and Commons in Parliament according to the Statnte of 25. E. 3. yet the Lords only by Proteſtation in preſence of the King and Commons, claimed to be THE SOLE JUDGES OF IT as Peers of Parliament, and belonging to them OF RIGHT. S…condly, That this claime of theirs in this caſe was acknowledged and ſubmitted to both by the King and Commons: and thereupon the Lords only, after ſerious conſideration of the caſe and Statutes, whereon it depended gave the definitive ſentence and judgement in this caſe, that it was neither Treaſon nor Felony, but Treſpas only &c. Thirdly, That the Earle thanked the King, only for his grace, the Lords FOR THEIR JUST JUDGEMENT and the Commons only for their good hearts and diligence, having no ſhare in the judgement though given by the Lords both in the Kings and their preſence; and that the Commons themſelves returned ſpeciall thanks to the Lords ſpirituall and temporall on Parliament for their good and juſt judgement. Fourthly, That this judgement of the Lords only, was finall and concluſive, both p. 41to the King and Commons, who aquieſced in it.

All that can be objected to evade this Preſident,Object. is that this Judgement was given in caſe of a Peer, wherein the Lords only are the Judges, by Magna Charta, c. 29. but not of a Commoner, which is the queſtion.

I anſwer,Anſw. that though this judgement of theirs was in caſe only of an Earle, who was a Peer, & triable**See Cooke 2. Inſlit on Ma…na Charta, c. 29. only by his Peers, yet the King & Lords in this Parliament, the very ſame day gave Judgement of High Treaſon againſt Henry and Thomw Peircy (one of them no Peer) and OTHERS who were in their companie (who were but Commoners and no Peers) for levying warre againſt the King, and that without the Commons, as is evident by the Parliament Roll of 5. H. 4. nu. 15. Et anxy meſme le vendreay AIVGGES PAR LE ROY ET SEIGNEIURS EN PARLEMENT, que levier de guerre fait per les ditz Mounſieur Henry, & Mounſieur Thomas▪ furont tenuz pur treaſon: & ceo ſi bien de eux meſmes come DE AUTERS qui fueront en lour compaigne, au temps de dit lever; which quite takes off this Objection.Se… Mr. Prynnes Doome of Cowardice and Treacherie. p. 2. 3. 4. 5. &c. where theſe records are cited at large verbatim.

To put all out of queſtion, I ſhall inſtance in ſome few ancient prefidents more, which are full and punctuall.

In the Parliament of 1. R. 2. num. 38. 39. 40. The Commons prayed, that all thoſe Captaines who had rendred or loſt Caſtles or Townes through default might be put to anſwer it in this Parliament, and ſeverely puniſhed according to their deſerts BY AWARD (or Judgement) OF THE LORDS and BARONS, to eſchew the evill examples they had given to other Governours of Townes and Caſtles. Whereupon Sir Alexander de Buxton, Conſtable of the Tower, was commanded to bring BEFORE THE LORDS IN PARLIAMENT, William de Weſton, and Lord of Gomynes, (both of them Commoners) on Friday the 27. of November, to anſwer ſuch Articles as ſhould be ſurmiſed againſt them on the Kings behalfe. Being brought BEFORE THE LORDS in full Parliament, they were ſeverally articled againſt, at the command of THE LORDS, by Sir Richard le Scrop, Knight, Steward of the Kings Houſe, and their ſeverall Articles, and anſwers to them in writing, being read before THE LORDS; Which done, the Conſtable was commanded to bring them againe before THE LORDS on Saturday next enſuing, being the 20. of November; on which day, it was ſhewed unto them ſeverally by the p. 42ſaid Steward, by THE LORDS COMMAND, That THE LORDS OF THE PARLIAMENT (whoſe names are particularly mentioned in the Roll) had met together, and conſidered of their reſpective anſwers, and that IT SEEMED TO THE LORDS AFORESAID, that the ſaid William had delivered up the Caſtle of Outherwycke to the Kings enemies without any dureſſe▪ or want of victuals, contrary to his alleagiance, and undertaking ſafely to keep it; and therefore THE LORDS ABOVE NAMED SITTING IN FUL PARLIAMENT ADJVDGE you TO DEATH, & THAT you SHAL BE DRAWN and HANGED. But becauſe our Lord the King is not informed of the manner of the Judgement the ex…cution of it ſhall be reſpited till the King be thereof in…ormed.

A…ter which Judgeme…t given it was ſhewed to the ſaid John Lord of Gomynes by the … Steward how the ſaid LORDS had aſſembled and conſidered of his anſwer: and THAT …EEMED TO THE LORD ſitting in full Parliament, that without dureſſe or default of victualls or other neceſſaries for the defence of the Town or Caſtle of Arde, and without the Kings command, hee had evilly delivered and …urrendred them to the Kings Enemies by his own default againſt all apparance of right or reaſon, againſt his undertaking ſafely to keep the ſame. Wherefore THE LORDS aforeſaid here in full Parliament ADJUDE YOU TO DEATH. And becauſe you are a Gentleman and a Baronet, and have ſerved the Kings Grandfather in his Warrs, and are no Leige…man of our Lord the King▪ you ſhall be beheaded without having OTHER JUDGEMENT. And becauſe that our Lord the King is not yet informed of the manner of this Judgement, the execution thereof ſhall be put in reſpite, untill our Lord the King be informed thereof.

Loe here two expreſſe Judgements given in Parliament by the Lords alone, without King or Commons, in caſe of Treaſon, even againſt Commoners themſelves. And an expreſſe acknowledgement of the Commons of the Lords right to award Judgement in theſe caſes, without the King or them; then which a fuller and clearer proofe cannot be deſired.

In the ſelf-ſame Parliament, 1. R. …. num. 41 42, 43. Dame Alice Piers was brought before THE LORDS, and charged by Sir Richard le Scrope, with ſundry miſdemeanors which ſhe denied; hereupon divers Witneſſes were examined againſt her: Whereupon p. 43JVDGEMENT WAS GIVEN BY THE LORDS AGAINST HER, that ſhe ſhould be baniſhed, and forfeit all her lands, goods, and tenements whatſoevèr. To this Judgement, neither King nor Commons were parties, but the Lords only.

To theſe I might adde the caſes of ccSee the doom of … and treachery. … 14 15. where the record is tranſcribed.Sir William de Eleuham, Sir Thomas Trivet, Sir Henry de Ferriers, and Sir William Farnden, Knights; and Robert Fitz Ralph, Eſquire; Rot. Parl. 7. R. 2. num. 24. ſentenced and condemned by judgement of the Lords in Parliament, pronounced by the Chancellour, for ſelling the Caſtle of Burbugh, with the armes and amm…nition in it, to the Kings enemies without the Kings licenſe. 21. R. 2. Parl. Rot. Plac. Coronae num. 27. where Sir Robert Pleaſington is adjudged a Traytor after his death, by the King, by …SSENT OF THE LORDS, and num. 15. 16. Sir Thomas Mortimers caſe, num. 17. Sir John Cobhams caſe, **31. H. 6. n. 45. 64. 65. …. 3. n. 16. to …8.and num. 28. Henry Bonoits caſe, condemned in like manner of treaſon by the Lords, with hundreds of Preſidents more.

I ſhall only cite three more at large which are punctuall.

In the Parliament of 8. R. 2. n. 12. Walter Sybell of London was arreſted and brought into the Parliament before the Lords, at the ſuit of Robert de Veer Earl of Oxford, for ſlandering him to the Duke of Lancaſter, and other Nobles, for maintenance: Walter denied not but that he ſaid that certain there named, recovered againſt him the ſaid Walter, and that by maintenance of the ſaid Earl as he thought. The Earl there preſent proteſted himſelf to be innocent, and put himſelf upon the triall. Walter thereupon was committed to Priſon by the Lords, and the next day he ſubmitted himſelf, and deſired the Lords to be a mean for him, ſaying, he could not accuſe him: whereupon THE LORDS CONVICTED and FINED HIM FIVE HVNDRED MARKS TO THE SAID EARL; for the which, and for his fine and ranſome, he was committed to priſon BY THE LORDS. A direct caſe in point.

In the ſecond Parliament in 7. R. 2. num. 13. to 19. Iohn Cavendiſh a Fiſhmonger of London accuſed Michael de la Pool Knight, Lord Cha…cellour of England, firſt before the Commons, and afterward before the Lords, for bribery and injuſtice; and that he entere… …nto a Bond of x. l. to Iohn Ottard, a Clerk to the ſaid Chancellour, which he was to give for his good ſucceſſe in the buſineſſe, in part of payment w…eof, he br…ught Herring and Sturgeon to Ottard and ye was delayed a…d could have no juſtice at the Chancellours h…nds, and upon hearing he cauſe and examining wi… o… fes upon Oath before THE LORDS, the Chancellour was cleared; p. 44The Chancellour thereupon required reparation for ſo great a ſlander: the Lords being then troubled with other weighty matters, let the Fiſh-monger to Bail, and referred the matter to be ordered by the Judges; who upon hearing the whole matter, condemned Cavendiſh in three thouſand marks for his ſlanderous complaint againſt the ſaid Chancellour, and adjudged him to priſon till he had paid the ſame to the Chancellour, and made fine and ranſome to the King alſo: which the Lords confirmed.

In the Parliament of 15. R. 2. nu. 21. Iohn Stradwell of Begſteed in the County of Suſſex, was committed to the fleet by JVDGEMENT OF THE LORDS, there to remain during the Kings pleaſure, for that he informed the Parliament, that the Archbiſhop of Canterbury had excommunicated him and his neighbours wrongfully for a temporall cauſe appertaining to the Crown and Common Law, wh…ch was ADIVDGED BY THE LORDS upon examination and hearing to BE VNTRVE.

Theſe three eminent Preſidents (to which many more might be added) of the Lords fining and impriſoning meere Commons, only for ſlandering Peeres of Parliament, even by falſe accuſations againſt them in Parliament by way of complaint, will …ſtify the Lords proceedings againſt Lilburn and Ov…rton for their profeſſed Libells both againſt their Perſons and Juriſdictions too.

To proceed to latter times in Parliaments of 18. and 21. Jacobi, and 3. Car. not only the Lord**Cook 4. Inſtit. p. 23. Chancellour Bacon, and the Earl of Middleſex, Lord Treaſurer▪ upon complaint of the Commons, were cenſured and judged by the Lords alone, but likewiſe Sir Giles Mompeſſon, Sir Iohn Michell, and Dr Manwering, (all Commoners) JUDICIALLY SENTENCED & Doctor Pocklinton, and Doctor Bray, even for erroneous Books and Sermons, were ſentenced this Parliament by the Lords alone; ſince theſe Maſter Clement Walker Eſquire was impriſoned in the Tower, and fined by the Lords, for ſome words pretended to be ſpoken againſt the Lord Say; and within theſe few moneths on… Morrice, and foure or five more of his confederates, were cenſured, fined and impr…ſoned, by the Lords alone, for forging an Act of Parliament upon Sir Adam Littletons complaint, with all the Commons privity or conſents; and above one hundred Commoner: more have been impriſoned by them or fined this very Seſſion of Parliament for breach of Priviledge, contempts or miſdemeanours, by the Lords alone, without the Commons; yet no demurrer nor exceptions were taken by them or the p. 45Commons to their Iuriſdiction, who applauded this their Juſtice in ſome of theſe caſes.

From all theſe cleare confeſſions of the Commons themſelves in Parliament, and punctuall preſidents in print in former, late Parliaments, and in this now ſitting, it is undeniable, That the King and Lords joyntly, and the Lords ſeverally without the King, have an indubitable right of Judicature, without the Common…, veſted in them, not only of Peers themſelves, but likewiſe of C…mmoners, in all extraordinary caſes of Treaſon, Felony, Treſpaſſe, and other Miſdemeanors▪ triable only in Parliament, which hath been conſtantly acknowledged, practiſed, and ſubmitted to, without diſpute: much more then have they ſuch a juſt and rightfull power, in caſe of breach of their owne priviledges, of ddCooke, 4 Inſtit. p. 15.which none are, or can be Judges but themſelves alone. And to deny them ſuch a power, is to make the Higheſt Court of Iudicature in the Realme inferiour to the Kings Bench, and all other Courts of Juſtice▪ who have power to judge and try the perſons and cauſes of Commoners, and to commit and fine them for contempts and breaches of Priviledges as oureeSee Brooke and Aſhes Tables, Tit. Contempts; Fines pur Contempt & Impriſonment. Law bookes reſolve, and every mans experience can teſtifie.

The Lords right of Judicature being thus fully evicted againſt the falſe and ignorant pretences of illiterate Sectaries, altogether unacquainted with our Hiſtories and Records of Parliament, which they never yet read nor underſtood, there remaines nothing but to anſwer ſome Preſidents and Objections.

The Principall preſident inſiſted on by Lilburne, Object. 1.is the Proteſtation of the Lords, in the caſe of**Cooke, 2. Inſtit. p. 50. Sir Simon Beresford, 4. E. 3. nu. 6. which I have already fully anſwered, retorted, and ſhall therefore here pretermit.

The ſecond is Sir Edward Cookes Authority,Object. 2. and the preſidents cited by him, in his 4. Inſtitutes, p. 23. 24. of Judicature in Parliament, where thus he writes; It is to be knowne, THAT THE LORDS IN THEIR HOUSE HAVE POWER OF JUDICATURE; And, the Commons in their Houſe have power of Judicature▪ and both Houſes together have power of Judicature. But the handling thereof according to the weight and worth of the matter would require a whole Treatiſe of it ſelfe▪ and to ſay the truth, it is beſt underſtood by reading the Judgements and Records of Parliament at large, and the Journalls of the Houſe of the Lords, and the Booke of the Clerke of the Houſe of Commons, which is a Record, p. 46as it is affirmed by Act of Parliament in An. 6. H. 8. c. 16. To which he addes theſe marginall Notes Vide Placita in Parlians Anno 33. E. 1. rot. 33. Nicholas Seagrave adjudg…. Par Praelatos, COMITES, BARONES ET ALIOS DE CONCILIO. At the Parliament at Yorke, Ap. 12. E. 3. Conſideratum eſt per Praelatos, Comites, BARONES, ET COMMVNITATEM ANGLIAE; the Lord Audleys care. At the Parliament at Weſtm. 15. E. 2 Hugh le pier adjuge per les SEIGNIEURS, & COMMONS. Rot. Parl. 50. E. 3. n. 34. Lord Nevils caſe. Then he a…des. See Rot. Clauſ. 1 R. 2. n. 5. 8. 38. …0. A treſage Councell le Roy Les SEIGNIORS, & COMMONS, &c. Rot. Parl. 2. H. 5. nu. 1…. Err…ra ſinned, THAT THE LORDS gave Judgement WIT…OVT PETITION OR AS…NT OF THE COMMONS, Rot. Parl. 28. H. 6. nu. 10. and many others in the Reigne of King H. 6. and Kin, E. 4. And of later times ſee divers notable Judgements, at the proſecution of the Commons, By THE LORDS, at the Parliaments …den 18. and 21. Iac. Regis, againſt Sir Giles Mompeſſon Sir Iohn Michell, Viſcount St. Albon, Lord Chancellor of England, the Earle of Middleſex, Lord Treaſurer of England, whereby the due proceedings of Iudicature in ſuch Caces doth appeare. Then hee cites the caſes of **8. Eliz.Thomas Long, **23 Eliz.Arthur Hall,**2. A…l, 1. Ma…. and Muncton, cenſured by the Houſe of Commons only and by them fined and impriſoned, without the Lords; A…d concludes thus; If any Lord of Parliament, ſpirituall or temporall, have committed any Oppreſſion, Bribery, extortion, or the like, the HOUSE OF COMMONS, BEING THE GENERALL INQUISITORS OF THE REALME, (comming out of all parts thereof) may examine the ſame, and if they find by the Vote of the Houſe, the charge to be true, then they TRANSMIT THE SAME TO THE LORDS WITH THE WITNESSES and PROOFES. From which paſſages of his ſome ignorantly have concluded. That the Lords have no power of Judicature without, but only joyntly with the Commons: That all Commoners ought to be judged only by the Commons, not by the Lords: and That the Commons have a ſole power of Judicature in caſes of Commoners; and the Lords no power but joyntly with them, or upon their preceding Petitions and impeachments, neither in caſe of Commoners; nor Peers.

I anſwer, that Sir Edward Cookes words are much miſtaken▪ and rightly underſtood warrant no ſuch inferences, but the contrary. p. 47For firſt, he clearely confeſſeth in direct termes, That the Lords in their Houſe have a power of judicature, even without the Commons; ha he de…med particularly in whoſe, and in what caſes out of the Judgements Records and Journals of Parliament at large (to which he refers the Reader a being beſt underſtood by reading them; which warrant the Lords judging, fining impriſoning and condemning to death not only of Peers, but of Commoners themſelves without the Commons; as I have fully manifeſted; their could no ſuch inference have been made. Secondly, …e adde…, That the Commons in their Houſe have a power of Judicature. From whence Lilburne and others inferre. That they are and ought to be the ſole Judges of all Commoners, and not the Lords, in all caſes triable in Parliament. But this is a moſt groſſe miſtake, Sir Edward Cooke confining this Judicature of theirs, only to theſe three c…ſes. Firſt, to matters and abuſe concerning elections of Knights, Citizens and Burgeſſes, being Members of the Commons Houſe, the judgment and determination whereof the Commons alone (of late times only) have uſually taken upon them without the Lords, which he proves by Thomas Longs caſe, 8. Eliz. and no greater antiquities, of which elections the King and Lords in former times have been ſole Judges: for which I ſhall cite ſome memorable records worthy the Lords and …mmons conſideration, who now take upon them to ſuſpend eje… & Judge their own Members elections without the Kings or Lords concurrence or privity, a practice not heard of in former ages and of late originall. In the Parliament holden at Weſtminſter. 5. H. 4. Rot. Parl. num. 38. Thomas Thorpe his caſe. Item, becauſe that the writ of ſummons of Parliament returned by the Sheriffe of Roteland was not ſufficiently nor duely returned as the Commons conceived; the ſaid Commons prayed our Lord THE KING, and THE LORDS IN PARLIAMENT that this matter might be duly examined in Parliament, and that in caſe their ſhall be default found in this matter that ſuch a puniſhment might be inflicted, which might become exemplary to others to offend againe in the like manner: Whereupon our ſaid Lord the King IN FULL PARLIAMENT, commanded THE LORDS IN PARLIAMENT TO EXAMINE THE SAID MATTER, and to doe therein AS TO THEM SHOULD SEEME BEST IN THEIR DISCRETIONS. And thereupon the SAID LORDS cauſed to come BEFORE THEM IN PARLIAMENT, as well the ſaid p. 48Sheriffe, as William One by who was returned by the ſaid Sheriffe for one of the Knights of the ſaid County, and Thomas Thorpe, who was elected in full Countie to be one of the Knights of the ſaid Shire, for the ſaid Parliament and not returned by the ſaid Sheriffe. And the ſaid parties being duely examined, and their reaſons well conſidered, in the ſaid Parliament, IT WAS AGREED BY THE SAID LORDS, that becauſe the ſaid Sheriffe had not made a ſufficient returne of the ſaid writ THAT HE SHALL AMEND THE SAID RETURN, and THAT HE SHALL RETURN THE SAID THOMAS FOR ONE OF THE SAID KNIGHTS, as he was elected in the ſaid Countie for the Parliament: and moreover that the ſaid Sheriffe for this default SHALL BE DISCHARGED OF HIS OFFICE, and COMMITTED PRISONER TO THE FLEET, and that he ſhould MAKE FINE and RANSOME AT THE KINGS PLEASURE. Loe here the Lords in Parliament at the Commons requeſt, and by the Kings command, examining and giving judgement in caſe of undue election, even without the Commons. An attendent on Sir Tho. Brooke choſen one of the Knights to ſerve in Parliament for the County of Somerſet, being grievouſly beaten by one Iohn Savage, was upon a petition of the Commons relieved againſt this breach of Priviledge by * Ordinance or Act of Parliament, 8. H. 4. 23. 14.made by conſent of the King and Lords, which is printed in 5. H. 4. c. 6. And in like maner Richard Strode Burgeſſe of Plimton was relieved againſt breaches of his priviledges as a Parliament man, by a ſpeciall act of Parliament aſſented unto by the King and Lords upon the Commons petition, An. 4. H. 8. c. 6. the Commons alone being then unable to relieve them, or puniſh theſe breaches, by their owne authority, as of late they preſume to doe without King or Lords; Quo Jure (having not the power of Judicature veſted in them) I am yet to learne, being contrary to the practice and preſidents of all ancient Parliaments before our preſent age; and the Statute of 11. H. 6. c. 11. provided for this very purpoſe, which preſents another remedy out of Parliament, and not in only the Commons houſe.

In the Parliament of 16. R. 2. n. 6. The Wedneſday after the Parliament began Sir Philip Courtenay returned by the Sheriffe of Devon for one of the Knights for that County▪ came before the King in full Parliament and ſayd, that he underſtood how certaine people had accuſed and ſlandered him to the King and p. 49Lords, as well by Bill as by mouth, of heinous matters; and therefore prayed TO BE DISCHARGED OF THE SAID IMPLOYMENT, untill the ſaid accuſations and complaints were tried, and found true, or not true: and becauſe his ſaid prayer ſeemed honeſt TO THE KING and THE LORDS, THE KING GRANTED HIM HIS REQUEST, and DISCHARGED HIM IN FULL PARLIAMENT. AND the Monday following, at the inſtance and prayer of the COMMONS the KING GRANTED THAT HE SHOULD BE RESTORED and REMITTED TO HIS PLACE according to the returne of the ſaid Sheriffe, for to counſell and doe that which belonged unto his office; and after becauſe he had been good and treatable with thoſe who had complained upon him, and condeſcended to a good treaty, he was reſtored in full Parliament to his good ſame. The charge againſt him is expreſſed in the ſame Parliament rol. num. 13. 14. where two Petitions preferred againſt him to THE KING and LORDS IN PARLIAMENT, for putting Thomas Peutyngdon forcibly out of poſſeſſion of the Manor of Bygelog… without juſt cauſe, & Richard Someſtre out of other lands & detaining them from them, he being ſo powerfull in the County, that no poore man durſt to ſue him. Which Petitions were referred by conſent in Parliament to certaine Arbitrators to determine.

From which record it is evident, Firſt, that Members of the Commons houſe may be complained and petitioned againſt for miſdeameanours, and put to anſwer before the King and Lords in Parliament, and there fined and judged (not before the Commons houſe) and that this was the antient way of proceeding. Secondly, that the Commons cannot ſuſpend or diſcharge any of their fellow-Commoners or Knights from ſitting in Parliament, but only the King and Lords in full Parliament, in whom the power of Judicature reſts: much leſſe then can they expell or eject any of their members by their owne authority without the Kings and Lords concurrence and conſents. Thirdly, that the power of reſtoring and readmitting a ſuſpended Member of the Commons houſe belongs not to the Commons themſelves, but to the King and Lords, to whom the Commons themſelves in this caſe addreſſed themſelves by petitinn for Courtneys readmiſſion unto his office, after his ſubmiſſion of the complaints againſt him to the arbitriment of thoſe Members to whom the King and Lords referred the ſame.

p. 50In the Parliament of 17. R. 2. n. 23. It was accorded by the King and Lords at the requeſt of the Commons, that Roger Swinerton who was endited of the death of one of their companions, John de Ipſtones, Knight of the ſaid Parliament for the County of Stafford, ſlain in coming towards the ſaid Parliament by the ſaid Roger, ſhould not be delivered out of priſon wherein he was detained for this cauſe, by bail mainpriſe, or any other manner, untill he had made anſwer thereunto, and ſhould be delivered by the Law, the Commons alone by their own power having no authority to make ſuch an order even for the murther of one of their own Members, without the King and Lords who made this order at their requeſt.

In the Parliament of 35. Eliz. when Sir Edward Cook was Speaker of the Commons Houſe, there fell out ſome queſtions in the Commons Houſe about the Amendment of a mistake in the return of the Burgeſſe of Southwark,* 5. R. 2. c. 4 8. H. 4. c. 14. 11. H. 4. c. 16. H. 6 c. 4. 8. H. 6. c. 7. 32. H. 6. c. 15 Ploud. tol. 11. 8 &c. and after long debate it was reſolved that the Houſe could not amend it, but the Lord Keeper in Chancery, where the return was of Record, if he thought it amendable by Law; and that Masten Speaker ſhould wait upon the Lord Keeper about it, which he did; who adviſed with the Iudges concerning it, as appeares by the Journall. And the Statutes made for redreſſe of abuſe of Elections of Knights and Burgeſſes were made by the King and Lords upon the Commons petitions, as appeares by 8. H. 4. n 83 1 9. 11. H. 4. n. 54. Neither of all which ſtatutes gives the Houſe of Commons alone any power of Iudicature to judge the right of Elections, or puniſh abuſes committed in them, but leaves them to the Lords judicature as at firſt, and gives the party injured an action at Law againſt the Sheriffe and … others for falſe returns.

Secondly, Sir Edmund Cooks words extend only matters of miſdemeanor of any Members of the Houſe of Commons committed in or againſt the Houſe it ſelf, of which the… now, though not anciently, are the ſole judges; without the Lords: which he proves by Arthur, Halls caſe. Thirdly to breaches of Priviledges of the Commons Houſe alone, in ſtriking or arreſting any of the Members, or their priviledged ſervants, which he proves by Munctons caſe, and 11. H. 6. c. 11. 5. H. 4. c. 6. the two latter proving the contrary.

Yet in this caſe of breach of priviledge even in arreſting the Commons Members and ſervants, the Commons houſe were no… anciently the ſole Judges, as now. In the Parliament of H. 6. n. 25. 26. 27. 28. Thomas Thorp chief Baron was choſen Speaker of the Parliament, and after his election, and before the Parliament, (which was proroged) p. 51he was arreſted and taken in execution at the ſuit of the Duke of York: whereupon ſome of the Commons were ſent up by the Houſe to the King, and Lords ſpirituall and temporall ſitting in Parliament, deſiring that they might enjoy all their ancient and accuſtomed Priviledges in being free from arreſts, and propounded the caſe of Thomas Thorp th…r Speaker to them, deſiring his inlargement, whereupon the ſaid Lords ſpirituall and temporall, not intending to hurt or impeach the priviledge of the Commons but equally after the Courts of law to adminiſter Juſtice, and to have knowledge what the Law will weigh in that behalf, declared to the Juſtices, the premiſes, and asked of them, whether the ſaid Thomas ought to be delivered from priſon by force and vertue of the ſaid priviledge of Parliament or not? To the which queſtion the chief Juſtices in the name of all the Juſtices aforeſaid communication and mature deliberation had among them, anſwered and ſaid, that they ought not to anſwer to that queſtion, for it hath not been uſed aforetime that the Iuſtices ſhould in any wiſe determine the priviledge of this high Court of Parliam. for it is ſo high and mighty in his nature that it may make that law which is not and that that is law, it may make no law, and the determination and knowledge of that priviledge belongeth to the Lords of the Parliament, and not to the Iuſtices; but as for declaration of proceedings in the lower Courts in ſuch caſes as writs of Superſedeas of Priviledge of Parliament be brought and delivered, the ſaid chief Iuſtice ſaid, that there be many and divers Superſedeas of priviledges of Parliament brought into the Courts, but there is no generall Superſedeas …rought to ſur…e…ſe all Proceſſes, for if there ſhould be, it ſhould ſeem that this High Court of Parliament, that miniſtreth all Juſtice and equitity ſhould let the proceſſe of the common Lawes, and ſo it ſhould put the party plainant without remedy, for ſo much as**VponUpon this ground 1. R. 2. n. 20. 87. 114. 2. R. 2. n. 8. 49. 5. R. 2. n. 44. 13 R. 2. n. 10. 30. 33. 15. R. 2. n. 9. 17. R. 2. n. 10 We find the Commons and Parliament very zealous to maintain the Common Law; and referring cauſes and petitions to it when proper for it, and unproper for the Parliament. actions at Common Law be not determined in this High Court of Parliament. And if any Perſon that is a Member of this High Court of Parliament, be arreſted in ſuch caſes as be not for Treaſon or Felony or ſurety of the Peace, or for condemnation before the Parliament, it is uſed that all ſuch perſons ſhould be releaſed of all ſuch arreſts, and make an Attorney, ſo that they may have the freedome and Liberty freely to attend upon the Parliament. After which anſwer and Declaration it was throughly agreed, aſſentted and concluded by the Lords ſpirituall and temporall, that the ſaid p. 52Thomas, according to the law, ſhould remain still in Priſon for the cauſes aboveſaid, the priviledge of the Parliament, or that the ſame Sir Thomas was Speaker of the Parliament, notwithſtanding, And that the premiſes ſhould be opened and declared to them that were com… for the Commons of this land, and they ſhould be charged and commanded in the Kings name that they with all goodly haſt and ſpeed proceed to the election of another Speaker. The which premiſes, for as much as they were matters of Law, by the commandements of the Lords, were opened and declared to the Commons, by the mouth of Walter M…yle one of the Kings Sergeants at Law, in the preſence of the Biſhop of Ely, accompanied with other Lords in notable number: and there it was commanded and charged to the ſaid Commons by the ſaid Biſhop of Ely in the Kings name, that they ſhould proceed to the election of another Speaker with all goodly haſt and ſpeed, ſo that the matters for which the King called this his Parliament might be proceeded in: and this Parliament took good and effectuall concluſion and end. VVhereupon th… Commons accordingly elected Thomas Charlton Knight, for their Speaker the next day, and acquainted the Lords therewith, and deſired the Kings approbation of their choice, which was accorded unto by the King.

In the Parliament of 39. H. 6. n. 9. Walter Clerke, one of the Burgeſſes of Parliament for Chippenham, was arreſted and impriſoned in the Fleet for divers debts to the King and others, upon a Capias U…lagat…m; whereupon the Commons complained thereof to the King and Lords, and deſired his releaſe, and tendred them an Act of Parliament ready drawn for that purpoſe to which Petition and Bi… of theirs, the King by the ASSENT OF THE LORDS SPIRITUALL and TEMPORALL aſſented; And thereupon hee was freed. In like maner, Richard Chedder.

In the Parliament of 35. Eliz. Thomas Fitz-Herbert of Staffordſhire was elected a Burgeſſe of Parliament, and two houres after, before the Indenture returned, the Sheriffe tooke him in upon a Capi… Utlagatum; Whereupon he petitioned the Houſe, that he might have a Writ of Priviledge and be enlarged. After many dayes debate and Argument of this caſe in the Houſe by ſundry Lawyers, and Sir Edward Cooke, then Speaker, it was agreed; p. 53That no Writ of Priviledge could in this caſe be returned into the Houſe of Commons, being but a Member of Parliament, and no Court of Record, but only into the Chancery or Houſe of Peers; And that this being a point of Law it was meet the Iudges ſhould be adviſed with, and determine it, not the Houſe: And at laſt he was outed of his Priviledge by the Houſes reſolution. In 28. H. 8. Dyer 60. The caſe of Trewinnerd a Commoner, in point of Priviledge of Parliament concerning an arreſt, was argued and debated before the Judges in the Kings Bench: And ſo was Chedders caſe in 8. H. 4. 12. 13. So as the Commons only are not the ſole Judges of ſuch Priviledge (as many now concerve) but the Houſe of Peers, and Kings Councell, and Judges as well as they. In theſe three caſes only, and no other that I find, Sir Edward Cooke admits the Commons to be ſole Iudges now (though not anciently) without the Lords. Therefore to extend it generally to all, or any other caſes of Commoners, but theſe is to pervert his words, and extend them farre beyond his meaning. Now Lilburnes & Overtons Caſes are none of theſe, but directly under the Lords ſole Iudicature, becauſe infringements of their Priviledges, of which the Lords only are the Iudges, as the Commons pretend they are of their Priviledges; as his following paſſages manifeſt. Thirdly▪ hee addes; that both Houſes together have power of Indicature, but determines not in what caſes, nor in what way of Judicature, which hath cauſed the Object…rs miſtake. But the Judgements, Records and Iournals of Parliament to which he refers, and the caſes he cites in the Margin, will affoyle this doubt, and cleare his meaning, which is this.

Firſt, That in attainders and judgements of High Treaſon, Felony, or other Miſdemeaners in Parliament, where the proceedings are not by way of tryall and ordinary Judicature, but by **See 31. H 6. n. 45. 64. 38. H. 6. n. 9. to 36.Bill or Act of Parliament, there both Houſes together (and the King too joyntly with them) have the power of Iudicature: and this is all which is proved by 15. E. 2. Hugh Spencers caſe, who was judged and baniſhed by an Act of Parliament, intituled Exilium Hugonis le Spencer (printed in old Magna Chartaes) as Sir Edward Cooke himſelfe reports in Calvins caſe, 7. Report, f. 11. b. and the Lord Audlyes caſe, 12. E. 2. is the ſame: the Commons having no right to judge them being Peers by p. 54the very**See Cooke 2. Inſtit. f. 49. 50. 51. Statute of Magna Charta, c. 29. but only the Peer, except in a Legiſlative way, by Act or Bill.

2Secondly, That in all caſes of difficultie where the King ſhall pleaſe to demand the adviſe and opinions of both Houſes of Parliament joyntly, there both of them may, and ought to joyne in delivering their opinions and Judgements of the caſe or thing propounded: and this is all that**Cooke, 3. I… q…. p 7. where is Caſe of …grave is cited at large. Sir Nicholas de Seagraves caſe proves 31. E. 1. rot. 33. Who being charged in Parliament in preſence of the King, Earles, Barons and OTHERS OF THE KINGS COUNCEL, (not the Commons or Burgeſſes, but the Iudges, and Kings learned Councell at Law **See the Free-holders Grand Inqueſt. 2. 39. 40. 41. 42.and Privy Councell, who were aſſiſtants to the Lords, as I conceive, and others of his Privy Councell, which Sir Edward Cooke would have to expreſſe the Commons in Parliament) then and there preſent; that the King in the wars of Scotland, being among his enemies, Nicholas Seagrave, his leigman, who held of the King by Homage and fealty, and ſerved him for his ayd in that warre, did maliciouſly move diſcord and contention without cauſe with John de Crombewell, charging him with many enormous crimes, and offered to prove it upon his body. To whom the ſaid John anſwered, that hee would anſwer him in the Kings Court, &c. and thereupon gave him his faith. After which Nicholas withdrew himſelfe from the Kings hoſt and ayd, leaving the King in danger of his enemies and adjourned the ſaid John to defend himſelfe in the Court of the King of France, and prefixed him a certaine day: and ſo as much as in him was, ſubjected, and ſubmitted the Dominion of the King and Kingdome, to the ſubjection of the King of France: and to effect this hee tooke his journey towards Dover to paſſe over into France. All which he confeſſed and ſubmitted himſelfe therein de alto et baſſo to the Kings pleaſure. And hereupon the King willing HABERE AVISAMENIUM to have the adviſe of the EARLES, BARONS, LORDS (magnatum) and OTHERS OF HIS COUNCELL enjoyned them upon the Homage, fealty and allegiance wherewith they were obliged to him, quod ipſi fideliter CONSVLERENT, they ſhould faithfully ADVISE HIM, what puniſhment ſhould be inflicted for ſuch a fact thus confeſſed: Qui omnes, habito ſuper hoc diligenti tractatu, & aviſamento, &c. Who p. 55all having had thereupon diligent debate and adviſe, having conſidered and underſtood all things contained in the ſaid fact, DICVNT (not by way of Iudgement judicially pronounced but of anſwer to the Kings queſtion propounded, and as their opinion of the cauſe) Said, that this fact DESERVES loſſe of life and members, &c. So as this offence (notes Sir Edward Cooke) was then adjudged in Parliament to be High Treaſon. But under his favour, Firſt, here was no Judgement at all given againſt the party himſelfe, but only an opinion and adviſe touching his caſe (not pending judicially in Parliament by way of Inditement or Impeachment, but voluntarily propoſed by the King) in anſwer to the Kings queſtion; and ſo it can be no proofe of any actuall proper Judicature veſted in both Houſes. Secondly, For ought appeares, this queſtion was only propounded to the Earles, Lords, Barons, and the Kings Councell that aſſiſted them; and ſo only to the Houſe of Peers, not to the commons: and anſwered, reſolved only by them;**See the Freeholders grand Inqueſt. p. 39. 40. 41. 42. aliorum de Concilio ſuo; not expreſſing nor including the Commons, as I apprehend, being never ſo intitled in any Parliament Records for ought I can find. And then it followes, that the LORDS ONLY IN THAT AGE were the Judges even of Commoners caſes. Thirdly, Admit the Commons were included yet it proves only a right of adviſing and delivering their opinions with the Lords, when required by the King, not of judging or pronouncing ſentence. Fourthly, Sir Edward Cooke citing this preſident, to prove That both Houſes together have power of Iudicature; muſt grant that even in 33. E. 1. there were two diſtinct Houſes of Parliament, who upon ſpeciall occaſions (as now at conferences, &c.) met and adviſed together; and therefore the diviſion of the Houſes was before Edward the third his raigne, and very probable as ancient as this ſummoning of Knights, Citizens, and Burgeſſes of the Parliament, which ſome make no ancienter then King Henry the firſt, or King Henry the third, In the 40. yeare of his reigne, Father to King Edward the firſt. So as this preſident makes quite againſt the Levellers and Lilburnians deſignes, The Freeholders Garnd Inqueſt. p. 13. 14. 15.and opinions.

Fourthly, Sir Iohn at Lees caſe 42. E. 3. num. 20. (ſaid to be adjudged by the Lords and Commons) is ſomewhat miſtaken. For p. 56the record only mentions, That the 21 day of May, the King gave thanks to the Lords and Commons for their coming and ayd granted; on which day ALL THE LORDS & SVNDRY OF THE COMMONS dined with the …ing. After which dinner Sir Iohn at Lee, was brought before the King, LORDS & COMMONS next aforeſaid (who dined with the King) to anſwer certaine objections made againſt him by William Latymer, about the wardſhip of Robert Latymer, that Sir John being of power had ſent for him to London, where by dureſſe of impriſonment he inforced the ſaid William to ſurrender his eſtate unto him; which done, ſome other Articles were ob…ected againſt the ſaid Sir Iohn, Of which for that he could not ſufficiently purge himſelfe, HE was committed to the Tower of London, there to remaine till he had made fine and ranſome at the Kings pleaſure, and command given to the Conſtable of the Tower to keep him accordingly. And then the ſaid Lords and Commons departed: After which he was brought before the Kings Councell at Weſtminſter, which COVNSELL ORDERED the ſaid ward to be releaſed into the Kings hands: So as this record proves not this judgement was given in the Parliament houſe, nor that the Lords and Commons adjudged Sir Iohn, but rather the King and his Councell in the preſence of the Lords and Commons.

Fifthly, The judgement given againſt the Lord Latymer 15. E. 3. Parl. rot. num. 27. (which was for his default in government againſt the profit of the King and Realm, procuring of grants to the deſtruction of the Staple and Towne of Calayes, and levying Impoſitions upon woolls) was given in full Parliament BY THE BISHOPS and LORDS who awarded him to the cuſtody of the Marſhall, and to make fine and ranſome at the Kings pleaſure: Whereupon the Commons REQUIRED (by way of petition) that he might loſe all his Offices, and no longer be of the Kings Councell, which the King granted. The Commons not joyning at all with the Lords in his judgement, neither could they ſo joyne, he being a Peer.

And for the Lord Nevill in that Parliament: num. 33. he was only accuſed, not judged by the Commons.

Sixthly, The caſe of 2. H. 5. rot. Parl. num. 15. that Error is p. 57there aſſigned that the Lords gave judgement without Petition or aſſent of the Commons, is a groſſe miſtake: For the record only recites, That Thomas Mountague Earle of Salisbury, Sonne and Heire of Iohn Mountague Earle of Salisbury, exhibited his petition in Parliament to reverſe a judgement given againſt his ſaid father in the Parliament at Weſtminſter in the ſecond year of King Henry the fourth. Whereupon he exhibited certaine reverſals of Judgements given in Parliament, as making on his behalfe, to the Lords conſideration, reverſed for ſome errors aſſigned in thoſe jadgements; to wit one judgement given againſt Thomas heretofore Earle of Lancaſter, before King Edward the ſecond at Pomfract, the monday before the feaſt of the Annuntiation, in the fifteenth yeare of his reigne; and another Judgement againſt Roger de Mortymer, late Earle of March, in the Parliament of King Edward the third, the Monday after the Feaſt of St. Katherine, in the fourth yeare of his reigne, at Weſtminſter. Which judgements being diſtinctly and openly read, and fully underſtood; Jo ſeemed TO THE KING and LORDS that the caſe of the death and execution of the ſaid John late Earle of Sarum, and of the judgement aforeſaid againſt him given, is not, nor was like to the caſe of the executing of the ſaid Thomas heretofore Earle of Lancaſter, nor to the caſe of the killing of Roger Earle of March, nor to any judgement given againſt the ſaid Thomas and Roger, as aforeſaid; but that the judgement and declaration had and given againſt the ſaid Iohn late Earle of Sarum WERE A GOOD JUST and LEGALL DECLARATION and JUDGEMENT. Per quod CONSIDERATUM FUIT in praeſenti Parliamento PER PRAEDICTOS DOMINOS tunc ibidem exiſtentes, DE ASSINSU dicti Domini noſtri Regis, quod praefatus nunc COMES Sarum. NIHIL CAPIAT PER PETITIONEM aut proſecutionem ſuam praedictam, Et ulterius TAM DOMINI SPIRITUALES QUAM TEMPORALE ſupradicti, JUDICIUMET DECLARATIONEM praedicta verſus dictum Ioannem quondam Comitem Sarum, ut praem…ttitur habita five reddita DE ASSENSU IPSIUS DOMINI REGIS AFFIRMARUNT FORE ET ESSE BONA, JUSTA ET REGALIA, et ea pro hujuſmodi EX ABUNDANTI DISCREVERUNT, & ADJUDICARUNT TUNC IBIDEM. This is all that is mentioned in this Parliament Roll concerning this buſineſſe.

It appeares by the Parliament Roll of 2 H. 4. num. 30. That Thomas Holland Earl of Kent, Iohn Holland Earle of huntingdo…, Iohn Mountagne Earle of Sarum Thomas Lord de Diſpencer and Ralph omely Knight were impeached of high treaſon, before the King and Lords in Parliament, for levying actuall Warre againſt the King to deſtroy the King, and his Subjects, and for this taken and beheade and hereupon ALL …E LORDS TEMPORALL BEING IN PARLIAMENT BY ASSENT OF THE KING DECLARED AND ADJVDGED all the ſaid perſons TRAITORS for leavying Warre againſt the King▪ and that as Traytors they ſhould forfeit all the lands they had in fee ſimple the 5 day of Jannary the firſt yeare of the raigne of the King or after according to the Law of the Land, with all their goods and chattells, notwithſtanding they were ſlaine upon the ſaid levying of Warre without proceſſe of Law. So this Record. To reverſe this judgement was this Petition of Thomas Earle o… Sarisbury in 2. H. 5. exhibited, without the errour aſſigned, as appeares by the Par…iament roll: but if it were, that the Lords only gave Judgement without Petition or aſſent of the Commons (as Sir Edward Cooke imagins▪) … the King and Lords, who upon ſolemned bate over-ruled the errour abuſes and Petitions, and found this judg…ment and Declaration of 2. H. 4. given by the Lords alone with the Kings aſſent without the Commons TO BE GOOD JVST and LEGALL, as they did, ex abund…nti, is a moſt undeniable proofe of the King and Lords ſole right of JVDGEING and DECLARING HIGH TREASON in Parliament without the Commons, as well in caſe of Commoners as Lords. Ralph Lomely being but a Commoner and Knight, though the reſt were Peers; and yet all joyntly adjudged Traytors, and declared ſuch only by the King and Lords without the Commons: and the Judgement aſſured to be good by the Commons who in the Parliament of 13. H. 4. num. 19. Petitioned, the Iohn Lomley might be reſtored by act of Parliament, and made capable to inherit his fathers lands thus attainted, to which the King by ASSENT OF THE LORDS SPIRITVALL and TEMPORALL, conſented.

p. 59Seventhly, the Parliament Roll of 28. H. 6. num. 18. &c. containes onelyonly an Impeachment of High Treaſon againſt the King, and other great miſdemeanors againſt the Kingdome, and wrongs to particular perſons compriſed by way of Articles in two diſtinct Bills brought up by the Commons, and preſented by William Treſham their Speaker, to the King in the Lords Houſe, the 7. day of February, againſt William de la Pole, Duke of Suffolke, to which they deſired the Duke might give in his Anſwer by a certaine day, which he did, abſolutly denying the Treaſon againſt the King, and denying and excuſing himſelfe of the reſt, without putting himſelfe upon the Tryall of his Peeres. The Chiefe Iuſtice thereupon, the 14. day of March by the Kings command, asked this Queſtion of the LORDS WHAT ADVISE THEY WOULD GIVE THE KING, what is to doe futrher in this matter; which adviſe was deferred till Monday then next following; whereon nothing was done in that matter. On Tueſday the 17. of March, the King ſent for all the Lords Spirituall and Temporall then being in Towne (being 42. in all into his Inner Chamber within his Palace of Weſtminſter, where when they were all aſſembled▪ hee then ſent for the Duke thither, who comming into the Kings preſence, kneeled downe, and continued kneeling till the Chancellour of England had delivered the Kings command to him; and demanded of him, what he ſaid to the Commons Articles, not having put himſelfe upon his Peerage? Whereupon the Duke denyed all the Articles touching the Kings Perſon and ſtate of the Realme, as falſe and ſcandalous. And ſo not departing from his ſaid Anſwers, ſubmitted himſelfe wholly to the Kings Rule and Governance, without putting himſelfe upon his Peerage. Where thus the Chancellour told him That as touching the great and horrible things contained in the firſt Bill, the King holdeth him neither declared nor charged. And as touching the ſecond Bill, containing miſpriſons which are not criminall, the King by force of his ſubmiſſion, by his owne adviſe, and not reporting him to the advice of the Lords, nor by way of judgement, for he is not in place of judgement, putteth you to his rule and governance, that before the firſt of May next comming, hee ſhould abſent himſelfe out of the Kingdome of England, and all other his Dominions, in France or elſewhere, for five yeares ſpace; and that hee, nor no man for him, ſhould ſhew or waite any malice, nor hate, to any perſon of what degree ſoever of the Commons in the Parliament, in no p. 60manner of wiſe, for any thing done to him in this Parliament or elſewhere. And forthwith Viſcount Peamont in behalfe of the ſaid LORDS both Spirituall and Temporall, and BY THEIR ADVICE, ASSENT AND DESIRE, ſaid and declared to the Kings Highneſſe, that this that ſo was decreed and done by his Excellencie, concerning the perſon of the ſaid Duke PROCEEDED NOT BY TH…IR ADVICE AND COVNSELS, but was done by the Kings owne demeanour and rule. Wherefore they beſought the King that this their ſaying MIGHT BE ENACTED IN THE PARLIAMENT ROLL FOR THEIR MORE DECLARATION HEREAFTER, WITH THIS PROTESTATION, THAT IT SHOVLD NOT BE, NOR TVRNE IN PREJVDICE NOR DEROGATION OF THEM, THEIR HEYRS, NE OF THEIR SVCCESSOVRS IN TIME COMMING, but that they may HAVE AND INJOY THEIR LIBERTY, AS THEY OR ANY OF THEIR ANCESTORS, PREDECESSORS HAD AND ENIOYED BEFORE THIS TIME. This is the ſum of this large record, which makes nothing to the purpoſe for which it is cited; that it is errour when both Houſes joyne not in …udgement. For firſt, here is nothing but an impeachment onelyonly by the Commons of a Peere, who ought to be tryed, judged by his Peerage, not by Commoners Secondly, there was no judgement given in Parliament in this caſe, but only a private Award made by the King, out of the Parliament Houſe in his owne Chamber in preſence of the Lords. Thirdly, the Lords entred a ſpeciall proteſtation againſt it, as not made by their advice or conſent. Fourthly, they en…er a ſpeciall claime in the Parliament Roll, for the preſervation of their Right and Freedome of Peerage for hereafter, both of being tryed and judged onelyonly by their Peeres in Parliament; and ſo an expreſſe reſolution, that they in Parliament are and ought to be Iudges, not the Commons. The laſt Records I have cited at large, leſt Sir Edward Cookes briefe quotation and miſ-recitall of them ſhould deceive the credulous or ignorant Reader.

Eighthly, the caſes of Sir Giles Monpeſſon, Sir John Michell, Viſcount S. Alban, and the Earle of Middleſex, whom the Commons onelyonly impeached; and the Lords alone (without the Commons votes or preſence) judged and ſentenced, are direct proofes p. 61that the power of Iudicature and Cenſure as well of impeached Commoners as Lords, reſides onelyonly in the Lords Houſe; the Commons being but generall Inquiſitors, to ſearch out and preſent both Lords and Commoners publike offences to the Lords, to whom they tranſmit the charge and witneſſes; the Lords the onelyonly Iudges, to heare and determine the charge, examine the witneſſes upon oath, and paſſe and record the ſentence, and ſee it executed; and no more Iudges in the Parliament, then the grand enqueſt are Iudges at the Aſſizes or Seſſions.

The ſecond and principall objection inſiſted upon by that Ignoramu…, Object. 2.Lilburne, and his diſciples the Levellers, is the Statute of Magna Charta, chap. 29. That no Free man ſhall be impriſoned, outlawed, exiled, or any other way deſtroyed; Nor we ſhall not paſſe upon him, nor condemne him, but BY THE LAWFVLL IVDGMENT OF HIS PEERES, or BY THE LAW OF THE LAND. Whence thus they argue: The Lords in Parliament are not Commoners Peers, but the Commons only, therefore they cannot be judged in Parliament by the Lords, but by the Commons alone; and if Peers there judge Commoners, it is a tyranny and uſurpation even againſt Magna Charta it ſelfe, though it be in caſe of priviledge.

To take away this grand ſeeming objection,Anſw. and give it a ſatisfactory anſwer, I ſay: Firſt, in generall, that there is ſcarce one Parliament ever ſince Magna Charta was firſt confirmed, but the Lords have ſentenced and given judgment againſt ſome Commoners capitally or penally in body or purſe, or both, without the Commons (and did ſo doubtleſſe before Magna Charta was made, as I have already manifeſted) yet never did the Commons in any one of thoſe Parliaments till this preſent, complain of it, as a violation of Magna Charta, or a tyrannicall uſurpation, as Lilburne and Overton ſtile it; but acknowledged it as a juſt right in the Lords, even in 3. Caroli it ſelfe when the Petition of Right was paſſed, in the Lords Iudgment and Sentence againſt Doctor Manwaring a Commoner, impeached by the Commons. And therefore for this one Ignoramus alone, againſt the judgements of all the Commons in Parliament, in all ages, to averre this a breach of Magna Charta, for impriſoning and fining him for the higheſt affront and breach of priviledge over offered to any Parliament, is the extremity of ignorance, malice and ſingularity.

p. 62Secondly, I anſwer, that the Statute of Magna Charta extendeth not to, nor was ever intended of the high Court of Parliaments Iudgements and Proceedings, but onelyonly to the proceedings and Iudgements in the Kings great Courts of Iuſtice at Westminſter Hall, the Exchequer, his Privy Councell, and other inferiour Courts held before Judges, Iuſtices of Aſſize, and other Officers, as is evident by comparing this objected Chapter with c. 11, 12, 13, 14, 18. 28, …0, 3…, 37. by the Statutes of 25. E. 3. Stat. 5. c. 4. 28. E. 3. c. 3. 37. E. 3. …. 18. 38. E. 3. c. 9. 42. E. 3. c. 3. 17. …2. c. 6. and the Petition of Right it ſelfe, 3. Caroli, which ſo expound it; there being never any complaint againſt the Parliament it ſelfe or Houſe of Peeres in any age, for breach of Magna Charta, in cenſuring or impriſoning Commoners till now. Therefore this miſapplying of this Law to the Parliament and Houſe of Peers, is a groſſe overſight.

Thirdly, the very literall ſence of this Law is much miſtaken by the Objectors; For that any Freeman of England is a Peer to another Freeman, quatenus ſuch a one, within this Law, though of an higher degree in point of honour, dignity, office, and eſtate; and this clauſe**… No Freeman ſhall be impriſoned, and but by the lawfull judgement of his Peers, extends onelyonly to exclude villaines and thoſe who are not Freeholders from being Iudges of Freemen and Freeholders in tryalls by Iury, (whence the Writs to the Sheriffes to ſummon Iurors, require them alwayes to returne Liberos & Legales homines) not to exclude Lords or Peeres (who are Freemen in the higeſt degree) to be Iudges of Commoners who are Freemen. So as the Argument from the true meaning of this Law can be but this, villaines and thoſe who are no Freemen are not to be Iudges, or impannelled in Iuries to condemne Freemen, becauſe they are not their Peeres, nor Freemen as well as they: Therefore Lords who are Freemen of the higeſt degree, may not give judgement againſt Commoners who are Freemen, very learned nonſence, we all know that the Lord Chancellour of England, Lord Keeper, Lord Treaſurer, Maſter of the Court of Wards, and ſome of the Iudges of the Kings Courts in Weſtminster Hall in former times, with the Chiefe Iuſtic…ar, and Iuſtices in Eyre were anciently and of late too (as the Earle of Holland and others) Peeres of the Realme, not Commoners; and that all the Peeres of the Realme are in Commiſſions of Oyer and Terminer, and of the p. 63Peace, yet did wee never heare of any Commoner demurring or pleading thus to any of their Juriſdictions in Chancery, Kings Be…ch, the Exchequer Chamber, Eyres, Aſſiſes or Seſſions; Sir, I am a Commoner, and you are a Peer of the Realme, but no Commoner as I am; beſides, you ſit here onelyonly in the Kings right, doing all in his name, and repreſenting his perſon, who is not any Peer, but Soveraigne. Therefore you ought not to judge my cauſe not condemne my perſon nor give any ſentence for or againſt mee, it being contrary to Magna Charta, which enacts, That no freeman ſhould be judged or preſſed upon or condemned, but by the lawfull judgement of his Peers. Certainly no perſon was ever yet ſo mad or ſottiſh, to make ſuch a Plea before Ignoramus Lilburne; And if Lords and Peers may judge the perſons and cauſes of Commoners in the Cancery, Kings Bench, Exchequer, Court of Wards, Eyre, and at Aſſiſes and S…ſſions, without any violation of this clauſe in Magna Charta; much more may the Houſe of Peers in Parliament doe it, who are certainly Peers to Commoners, though Commoners be not Peers to them, within the meaning of Magna Charta, ch. 29.

Forthly, If the Lords in Parliament cannot meddle with or give judgement in Commoners cauſe, without breach of this clauſe in Magna Charta, then why didbbSee his Innocency and truth juſtified. Lilburne himſelfe ſue and petition to the Lords as the onelyonly competent Iudges to reverſe his ſentence in Star-Chamber, and give him dammages, becauſe it was againſt this very Chapter of Magna Charta: If Lords cannot give judgement in the caſe of Commoners as now he holds without expreſſe violation of this Law; then h…mſelfe in petitioning the Lords to relieve him againſt the Starre Chamber Sentence, becauſe contrary to this very Law and Chapter of Magna Charta, was as great a violation of it as his Starr-Chamber cenſure, and his ſentence in Starre-Chamber remaines ſtill unreverſed, becauſe the Lords examining and reverſing of it, they being no Commoners as hee is, but Peers, was Coram non judice, and meerly void, by the Statute of 25. E. 3. St…t. 5. …. 4. becauſe contrary to Magna Charta it ſelfe, as hee now expounds it. Let him therefore unriddle and aſſoyle thi… his owne Dilemma, or for ever hold his tongue and pen, from publiſhing ſuch abſurdities to ſeduce poore people, as he hath don…; and exa…perate them to clamour againſt the Lords, for being more favourable in their cenſure of him, then his tranſcendent p. 64Libels and contempts againſt them deſerved.

Fifthly, This Statute is in the diſ-junctive, by the Lawfull of his Peers, OR BY THE LAW OF THE LAND, which this Ignoramus obſerves not.… Now by the… Law of the Land, every Inferiour Court of juſtice may fine and impriſon men for contempts and miſdemeanors againſt them and their authority: therefore the Lords in Parliament being the higheſt and ſupreamed Tribunall, may much more doe it, and have ever done it, even by this expr…e clauſe of Magna Charta; the Law and Cuſtome of Parliament, as well as they may givecc… judgements in writs of Errour againſter for Commons, without the Commons conſent, as himſelfe …oth grant.

Fifthly, It is granted by Lilburne, that by this expreſſe Law, …o f…eeman of England ought to be judged or cenſured but onelyonly by his Peers, and that Commoners are no Peers to Nobl…men, nor Noblemen Peer… to Commoners; Then by what Law of reaſon dared he to publiſh to the world,dd… That the Houſe of Commons are the Su…reme Power within this Realme and THAT BY RIGHT THEY ARE THE LORDS JVDGES, certainly this is a Note beyond Ela, a direct contradiction to Magna Charta in this very clauſe wherein hee placeth his ſtrength, and ſubverts his very ground work againſt the Lords juriſdiction in their cenſure of him. For if the Houſe of Commons be by right the Lords …udges, then by Magna Charta, c. 29. they are and ought to bee their Peers; and if the Commons bee the Lords Peers, then the Lords muſt bee the Commons Peers too; and if ſo, then they may lawfully be his judges even by Magna Charta, becauſe here he grants them to bee no other then his Peers; Loe the head of this great Goliah of the Philiſtin Levellers, cut off with his owne ſword; and Magna Charta for ever vindicated from his ignorant and …ttiſh contradictory Gloſſes on it; and to convict him of his Errour in affirming the Houſe of Commons to bee by right the Lords judges. I might informe him▪ that Magna Charta it ſelfe …. 1. & 20 and Sir Edward Cooke, (his chiefe Authour) in his commentary on them are expreſſe againſt him, that in the Parliament of 15. c. 3. ch. 2. in print, it was enacted. That whereas before this time the Peers of the Land have been arreſted and impriſoned and their Temporalities Lands and Tenements, Goods and … ſeiſed in the Kings hards, and ſome put to death, p. 65WITHOVT IVDGEMENT OF THEIR PEERS, that NO PEER OF THE LAND, Officer or other by reaſon of his office, nor of things touching his office, nor by other cauſe ſhall be brought in judgement, to loſe his Temporalities, Lands, Tenements, Goods, Chattels, nor to bee arreſted or impriſoned, outlawed, exiled, nor forejudged, nor put to anſwer, NOR TO BE IVDGED BVT BY AWARD OF THE SAID PEERS IN PARLIAMENT. which Priviledge of theirs was both enjoyed and claimed in Parliament, 4. E. 3. n. 14. 15. E. 3. n. 6. 8. 44. 49. 51. 17. E. 3. n. 22. 28. F. 3. n. 7. …0. 16. 10 R. 2. n. 7. 8. &c. and ſundry other Parliament RollseeSee Cook. 4. Inſtit. p. 15. …7. E. 3. 19. And in 11. R. 2. n. 7. All the Lords in this Parliament as well Spirituall as Temporall, claimed this their liberty and franchiſe that all weighty matters in the ſame Parliament to be after moved TOVCHING THE PEERS OF THE LAND, ought to bee determined, and judged and diſcuſſed BY THE COVRSE OF THE PARLIAMENT, and not by the Civill Law, nor BY THE COMMON LAWES uſed in other inferiour Courts of the Relame. The which claime and liberty the King moſt willingly allowed, and granted thereto IN FVLL PARLIAMENT. And hereupon in the Parliament of 14. R. 2. n. 13. The King and LORDS (without the Commons) ADIVDGED the Earledome and Seigniory of Richmond to bee forfeited, by reaſon that Iohn Duke of Br…tany then Earle of Richmond adhered to the French againſt his Allegiance. This Paradox therefore of his, is againſt all Statutes, Law-Books, and Preſidents whatſoever, and Magna Charta it ſelfe.

There is onelyonly one objection more of moment remaining,Object. 3. which is this, If the Houſe of Peers may without the Commons fine and impriſon Commoners; then if their fine and impriſonment be unjuſt and illegall, they ſhall bee remedileſſe, there being no ſuperiour Courr to appeale unto, which will bee an intollerable ſlavery and grievance not to bee indured among free-borne people.

I anſwer,Anſw. firſt, that no injuſtice ſhall or ought to be preſumed in the higheſt Court of Iuſtice, till it bee apparantly manifeſted. Secondly, If any ſuch cenſure be given, the party (as in Chancery) upon juſt grounds ſhewed may Petition the Houſe of Peers for a reveiw and new-hearing of the cauſe, which they in juſtice neither will nor can deny; and if they doe, then the party grieved may petition the Houſe ef Commons to interceed in his behal…e to the Peers for a rehearing; but to diſcharge or free any Commoner judicially cenſured by the Lords, I have hitherto met with no Preſident in former Parliaments, nor power in the Houſe of Commons to doe it, who cannot reverſe Euro…ous judgements in any inferiour Courts by writ of Errour, but the Lords alone; much leſſe then the judgements of the Higher Houſe of Peers which is par…mount them, Though I conceive the Houſe of Peers, being the Superiour Authority, and onelyonly Iudicatory in Parliament, may relieve or releaſe any Commoners unjuſtly impriſoned or cenſured by the Commons houſe, or any of their Committees, and ought in juſtice to doe it; or elſe there will be the ſame miſchiefe or a greater, in admitting the Houſe of Commons to bee judges of Commoners; if there bee no appeale from them to the Lords, in caſe their ſentences bee illegall or unjuſt. Thirdly, This miſchiefe is but rare,Cook 4. inſtit p. 21, 22. 4. … 3. n. 14. Brook and C…nmptons juriſdiction, and all Statutes for repealing former Parliaments Acts, Iudgements, or Attaindors. and you may object the ſame againſt a ſentence given, or Law made in Parliament, by the King and both Houſes, becauſe there is no appeale from it, or redreſſe of it, but onelyonly in the next Parliament that ſhall be ſummoned by petition. And there is a greater greevance in ill publique Acts which concerne many, then in … judgements which concerne but one or two particular perſons; which yet cannot be repealed but by another Parliament; as the Errours and decrees of one generall Counſell cannot bee rectified or reverſed but by and till another Generall Counſell meets to doe it. The ſame miſchiefe was and is in Errous, Iudgements, and Decrees given in the Kings Bench, Chancery, and illegall commitments there; for which there is no reliefe out of Parliament, but towait till a Parliament be called.

Finally, Hee that ſuffers by and under an unjuſt cenſure will have the comfort of a good Conſcience to ſupport him till he bee relieved; and therefore heeeLuk. …1. 19. 1 Pet 3. 14. He. …0, 32, 33, 34.Luke 1:191 Pet 3:14 muſt poſſeſſe his ſoule with Patience, and rejoyce under his croſſe, and not raile, murmur, and play the Bedlam as Lilburne and his Companions, Overton, Larner, and other Sectaries doe, againſt our ff… Pet. 2. 15. to 21 c. 4. …6. I…. 53.Saviours owne precept and example, & then God in his due ſeaſon will ggPſal. 3…. & 37. & 46.Ps 3relieve & right them in a legall way; whereas their impatience, raving, and libellous railing Pamphlets and Petitions (not ſavouring of a Chriſtian, meek and humble ſpirit) will but create them new troubles, expoſe them unto juſt and heavy cenſures, and rob them both of the comfort p. 67and glory of all their former ſuffrings againſt Law and Right.

Having anſwered theſe Objections I ſhall now earneſtly deſire all Lilburnes and Overtons ſeduced Diſciples, whether Members or others, ſeriouſly to weigh and conſider the premiſes, that ſo they may ſee how groſſely they have been deluded, abuſed, and miſled by theſe two Ignes fatui, or New-lights of the Law, and Circumſcribers of the Lords and Parliaments Iuriſdictions, which (God knowes) they no more know nor underſtand then Balams Aſſe, as the premiſes demonſtrate; and I ſhall ſeriouſly adjure them, (if they have any grace, ſhame, or remainder of ingenuity left in them) ingeniouſly to recant, and publiquely to retract all their ſeditiou… rayling Libels, and Scurrilous Invectives againſt the Lords undoubted Priviledges, Iuriſdiction, and Iudicature, which I have here unanſwerably made good, by undeniable Teſtimonies, Hiſtories, Records, and the grounds of policy, and right reaſon, (which they are unable to gaine ſay) to undeceive the many ignorant over-credulous poore ſoules they have corrupted and miſled to the publique deſtrubance of our Kingdomes Peace; Iſay. 9. 16.Isa 9:16and let all their followers conſider well of our Saviours caution, Mat. 15. 14. If the blinde lead the blinde (as theſe blinde-guides doe you) both of them ſhall fall into the ditch, and there periſh together: O conſider therefore what I have here written to undeceive your judgements, and reforme your practiſe; conſider that Dominion, Principality, Regality, Magiſtracy, and Nobility are founded in the very Law of Nature, and Gods owne inſtitution, who ſubjected not onelyonly all beaſts, and living creatures to the ſoveraigne Lordſhip of man, to whom hee gave Dominion over them, Gen. 1. 28, 29. c. 9. 2, 3, 5. by vertue whereof men enjoy farre greater Priviledges then beaſts; but likewiſe one man unto another, asiiGen. 3. 16. Exod. 20. 12. Epheſ. 5. 22. to 30. c. 6. 1. to 10. Rom. 13. 1, 2, 3. Tit. 3. 1. Col. 3. 20, 22. 1 Pet. …. 13, 14, 18 c. 3. 15. Heb. 13. 17. Ioſh. 1. 16, 17, 18. Matth. 8 9.Gen 3:16Exod 20:12Eph 5:22–30Rom 13:1Rom 13:2Rom 13:3Titus 3:1Col 3:20Col 3:22Heb 13:17Josh 1:16Josh 1:17Josh 1:18Matt 8:9 children to their Parents, Wives to their Husbands, Servants to their Maſters; Subjects to their Kings, Princes, Magiſtrates, Souldiers to their Captaines, Mariners to their Ship-Maſters, Schollers to their Tutors, People to their Miniſters; which order, if denied or diſturbed, will bring abſolute and ſpeedy confuſion in all Families, Corporations, States, Kingdomes, Armies, Garriſons, Schooles, Churches, and diſſolve all humane Societies, which ſubſiſt by order and ſubordination onelyonly to one another; and ſeeing Monarchy, Royalty, Principality, p. 68Nobility, yea Titles of Honour and Nobility (as Kings, Princes, Dukes, Lords, &c.) are as ancient almoſt, as the world it ſelfe, univerſally received, approved among all Nations whatſoever under heaven, See M…ſt…r Seldens Titles of honour, Dr. Hu…es and others of Nob…l…ty. Catane…s C…ologus gloriae mundi.and honoured with ſpeciall Priviledges, as not only all k… eminent Authours, and experience maniteſt, but theſe enſuing Scripture Texts, Gen. 12. 15. c. 14. 1. to 10. c. 17. 6. 16. c. 20. 2. c. 21, 22, 23. c. 25. 16. c. 26. 1. 8. 26. c. 36. 15, 16, 17, 18, 29, 30, 31, to …3. c. 9. 1, 2. c. 41. 40, to 47. c. 47. 2…, 26. Exod. 1. 8. Numb. 20. 14, &c. c 21, 1, 1…, 21, 33. c. 22. 7, 10, 14, 15, 40. c. 23. 17. c. 7. 2, 3, 10. c. 16. 2. c. 27. 2. c. 32. 2. Dent. 17. 14, 15, 16. Ioſh. 1. 16, 17, 18. c. 5. 1. c. 8. 9, 10 11, 12. Iudg. 9. 6, 18. 1 Sam. 8. 5, 6. 2 sam 11. 2. 1 Kin. 4. 34. c. 10 15, 28, 29. c. 20. 16. c. 23. 22. Iob. 3. 14. c. 36. 7. Pſal. 2. 2. 10. Pſ. 62. 12, 14, 29. Pſ. 72. 10. Pſ. 102. 15. Pſ. 136. 17, 18. Pſ. 138. 4. Prov. 8. 15, 16. Prov. 30. 31. Eccleſ. 10, 16, 17. Iudg. 3. 5. c. 16. 8, 1 Sam. 5. 11. c. 29. 2, 6, 7. Dan. 4. 36. c. 5. 9, 10, 23. c. 6. 27. Mat. 8. 9, Mar. 6. 21. c. 10. 42. 1 Cor. 8. 5. Rom. 61. 1, 2, 3, 4. 1 Tim. 2. 1, 2. Tit. 3. 1, 2. 1 Pet. 2. 13, 14, 15. Acts 9. 27. (which I wiſh our Sectaries, Lovellers and Lilburniſts to conſider and ſtudy, with the others forecited; it will be a meer deſperate folly and madneſſe in any man to prove Antipodes to this inſtituiion of God, Nature, Nations; to run quite contrary to all meu, and to levell the head, neck, ſhoulders to the feet; the tallect Cedars to the loweſt Shru…s; the roofe of every building to the foundation ſtones, the Su…ne, Moone, Starres, Heavens, to the very Earth and center, and even men themſelves to the meaneſt beaſts. I ſhall therefore conclude with Saint Pauls ſerious admonition, which theſe refractory perſons have quite forgotten, Rom. 13. 1, 2, 3. Let every ſoul be ſubject to the higher Power for there is no po…er but of God the powers that be are ordained of God; whoſoever therfore reſiſteth (much more oppugneth, aboliſheth) the Power, reſiſteth (oppugneth, aboliſheth) THE ORDINANCE OF GOD, and t…ey that reſiſt (oppugne or endeavour to aboliſh theſe powers) ſhall receive to themſelves DAMNATION; for Rulers are not a terrour to good workes, but to the evill, and wherefore YE MVST NEEDS BE SVBIECT, NOT ONLY FOR WRATH, but alſo FOR CONSCIENCE SAKE. And for this cauſe pay you tribute alſo, for they are Gods Miniſters, attending continually on this very thing. Render therefore to all (ſuch higher Powers) p. 69their dues, tribute to whom ribute, cuſtome to whom cuſtome, feare to whom feare, HONOVR to whom HONOVR IS DUE, (which Saint Peter likewiſe ſeconds almoſt in the ſelfe-ſame words, which you may doe well to peruſe and ſtudy, 1 Pet. 2. 12. to 20.) and then you will never dare to queſtion or diſpute any more the Power, Iudicatory, Priviledges of the Right Honourable Houſe of Peers, much leſſe to Revile and Libell againſt their perſons as now you doe, to the infinite Scandall of your Schiſmaticall faction, and Religion it ſelfe, which you profeſſe onelyonly in ſhew, but deny in deed and practiſe.

FINIS.

End of the text · William Prynne, Plea for the Lords (1648)