Plea for the Lords and House of Peers
The source for this document is https://quod.lib.umich.edu/e/eebo/A56189.0001.001
Project Note
This is licensed under Creative Commons CC BY-NC-ND. This license allows reusers to copy and distribute the material in any medium or format in unadapted form only, for noncommercial purposes only, and only so long as attribution is given to the creator.
The source of this document is the Early English Books Online (EEBO-TCP) website. Those books were transcribed in a character for character manner and can be very cumbersome to read since there was no standard spelling during that time. Many spelling variations such as "unlesse", "vnlesse", and "vnles" regularly appear.
This project was conceived to clean up those books as much as possible and make them more accessible to the interested reader, leading to the creation of a massive list of variant spellings and their corrections. This was used to clean up the text, but is of course only as complete as the list itself. Because of the nature of the original transcription, some words have missing characters or places where the original language (e.g., Greek) was not transcribed. This effort does not change that. Be aware that the original transcription can also be faulty and in some cases entire sentences may be missing.
Although this is no substitute for a properly compared, proofed, and scholarly edition, I believe that the result is a document which is far more accessible, particularly for searching for terms using standard spelling. The document has been cleaned and presented in what I hope is a pleasing and useful format for the vast majority of Christian brothers and sisters who just want access to read these spiritually nourishing works.
However, a word of warning: The Puritans were a very diverse group of people and their age was characterized with godliness, but also much upheaval, disputation and strife. They disagreed on many doctrines and some of these works contain less orthodox or Scriptural views than others. The reader is strongly advised to read with discernment, particularly if it is unknown whether author is trustworthy.
This project took a huge amount of time and skill to bring to fruition. I would particularly like to thank David Jonescue for the initial list of Puritans he found on EEBO and the concept behind this project as well as the continuous, unceasing efforts toward seeing this complete. Without his labor, this would not be available. Alex Sarrouf was invaluable in providing the initial list of over 7,000 spelling variations he had identified and corrected, as well as continuing to review more than 16,000 additions to that list for any typos.
Logan West
(with David Jonescue and Alex Sarrouf)
www.puritansearch.org
A Plea for the LORD'S AND HOUSE of PEERS.
OR A full, necessary, seasonable enlarged Vindication, of the just, ancient hereditary Right of the Earls, Lord's, Peers, and Barons of this Realm to sit, vote, judge, in all the PARLIAMENTS of ENGLAND.
Wherein their Right of Session, and Sole Power of Judicature without the Commons House, in Criminal, Civil, Ecclesiastical causes as well of Commons as Peers ; Yea in cases of Elections, Breach of Privilege, misdemeanors of the Commons themselves, are irrefragably evidenced by solid reasons, punctual Authorities, memorable Presidents out of Histories and Records in all ages, most of them not extant in any Writers of our Parliaments : Whose Errors are here rectified; the Seditious Anti-Parliamentary Pamphlets, Libels of Lilbourn, Overton, and other Levellers against the Lord's House, and Right of judging Commoners, fully refuted: and larger Discoveries made of the Proceedings, Judgments of the Lord's in Parliament, in Criminal, Civil causes, Elections, Breaches of Privilege, of their Gallantry in gaining, maintaining, preserving the Great Charters, Laws, Liberties, Properties of the Nation, and oppugning all Regal, Papal Usurpations, Exactions, Oppressions, illegal Ayds, Taxes required or imposed; and of the Commons first summons to, and just Power in Parliaments, than in any former Publications whatsoever.
By William Prynne Esquire, a Bencher of Lincolns Inn.
Prov. 22.28.
Remove not the ancient Land-mark which thy Fathers have set,
LONDON, Printed for Henry Brome, at the sign of the Gun in Ivy Lane and Edward Thomas at the Adam and Eve in Little Britain, 1659.
To all the truly Honorable, Heroic Lord's and Peers of the Realm of England, who are real Patriots of Religion, their Countries Fundamental Liberties, Properties, Great Charters, Laws, against all arbitrary Tyranny, Encroachments, illegal, unnecessary Taxes and Oppressions.
Right Honorable,
T Hough true Nobility (always founded in virtue and real piety ) needs no other tutelary Deity, or Apology, but itself, amongst those ingenious Spirits, who are able to discern or estimate its worth; yet the iniquity of our degenerated Age, and the frenzy of the intoxicated ignorant vulgar is such, that it now requires the assistance of the ablest Advocates to plead its cause, and vindicate the just Rights, Privileges of the House of Peers, against the licentious Quills, Tongues of lawless sordid Sectaries, and Mechanic Levellers ; who having got the Sword and reins into their hands, plant all their batteries and force against them; crying out like those Babylonian Levellers of old against the House of Lord's; Rase it, Rase it, even to the foundation thereof, and lay it forever • ver with the very dust; beholding all true Honor, worth, and Nobleness shining forth in your Honors heroic Spirits, with a malignant aspect, because they despair of ever enjoying the least spark thereof in themselves, and prosecuting you with a deadly hatred, because better, greater than ever they have hopes to be, unless they can through Treachery and violence make themselves the only Grandees, by debasing your highest Dignity, to the lowest Peasantry, and making the meanest Commoners your Compears.
This dangerous seditious Design hath engaged me (the unablest of many) out of my great affection to Royalty and real Nobility, and a deep sense of the present kid tottering condition of our Kingdom, Parliament (the very pillars and foundations whereof are now not only shaken, but almost quite subverted ) voluntarily, without any Fee at all, to become your Honors Advocate, to plead your Cause, and vindicate your undoubted hereditary right of sitting, voting, judging in our Parliaments ; of which they strenuously endeavor to plunder both your Lordships and your posterities; and to publish these subitane Collections to the world, (now enlarged with many pertinent Additions) to still the madness of the seduced vulgar, whom Ignoramus Lilburn, Overton, Walwin, and their Confederates have labored to mutiny against your Parliamentary Jurisdiction, treading upon Princes as upon mortar, and as the Potter treadeth the clay, in their illiterate seditious Pamphlets, whose Arguments, Pretences, Presidents, Objections, Allegations I have here refuted by Scripture, Histories, Antiquities, and Parliament-Rolls ; the ignorance whereof, joined with their malice, is the principal occasion of their error in this kind.
And truly were all our Parliament Rolls, Pleas, Iournals, faithfully transcribed, and published in print to the eyes of the world, as most of our Statutes are, by authority of both Houses of Parliament (a work as worthy their undertaking, and as beneficial for the public, as any I can recommend unto their care) it would not only preserve them from imbezelling, and the hazards of fire and war, to which they are now subject, but likewise eternally silence, refute the Sectaries, Levellers ignorant false Allegations against your Honors Parliamentary Jurisdiction and Judicatur ▪ resolve, clear all or most doubts that can arise concerning the tower, jurisdiction, privileges of both, or either Houses, keep both of them within their due bounds, (the exceeding whereof is dangerous, grievous to the people, except in cases of absolute, real, present, urgent, not pretended necessity, for the saving of a Kingdom▪ whiles that necessity continues, and no longer; chalk o •• the • mi • ent regular way of proceeding in all kinds of Parliamentary affairs whatsoever, whether of war, or peace, Trade or Government, Privileges or Taxes, and in all civil or criminal causes, and all matters whatsoever concerning King or Subject, Natives or Foreigners ; overrule, reconcile most of the present differences between the King and Parliament, House and House, Members and Members ; clear many doubts, rectify some gross mistakes in our printed Statutes, Law-Books, and ordinary Historians ; add much light, luster, ornament to our English Annals, the Common & Statute Laws ; and make all Lawyers, all Members of both Houses far more able than now they are, to manage and carry on all businesses in Parliament, when they shall upon every occasion almost have former presidents ready at hand to direct them; there being now very few Members, in either House, Lord's, Lawyers, or others, well read, or versed in ancient Parliament Roll • , Pleas, Iournals, or Histories relating to them, the ignorance whereof is a great Remora to their proceedings, yea oft times, a cause of dangerous encroachments of new Jurisdictions over the Subjects persons, estates, not usual in former Parliaments; of some great mistakes and deviations from the ancient methodical Rules and Tracts of parliament (now almost quite forgotten, and laid aside by new inexperienced, ignorant Parliament Members, who think they may do what they please) to the public prejudice, injury of posterity, and subversion of our Fundamental Laws, Rights, Liberties, in the highest degree, by new erected arbitrary Committees, exercising an absolute tyrannical power over the Persons, Liberties, Estates, Freeholds both of Lord's themselves, and all English Freemen.
Your Lordships helping hand to the speedy furthering of such a necessary public work, and your industrious, magnanimous, unanimous imitation of the memorable heroic presidents of your Noble progenitors, in gaining, regaining, enlarging, confirming, perpetuating to posterity the successive Grand Charters of our Liberties, when ever violated, in oppugning all arbitrary tyrannical Proceedings, Taxes, Oppressions, Encroachments, ill Counselors, and bad Instruments both of Kings and Popes themselves; in inflicting exemplary punishments upon all Traitors, Enemies to the public, both in our Parliaments, and the Field too, when there was occasion, the principal whereof, I have here presented to your view, in a Chronical method, will be a great accession to your Honor, the best vindication of your ancient undoubted Parliamentary Jurisdiction, Right, Power, Judicature, against all Opposites ; till the accomplishment whereof, I shall humbly recommend this enlarged Plea in your Honors defense, to your Noble Patronage ; who can pitch upon no better, nor readier means to support your declining Honor and Authority, or to re-indear yourselves in the Peoples affections, than in these distracted, dangerous, stormy times, to engage all your interest, power, activity, speedily to settle, secure God's Glory, Truth, Worship, the public Laws, Peace, Liberty, Safety of the Kingdom, against all open Opposers, and secret Underminers of them; to unburthen the people of their long-continued, heavy Taxes, the Soldiers insolencies, free-quarters ; to redress all pressing grievances, all oppressing arbitrary Committees, proceedings, contrary to the rules of Law and Justice ; to right all grieved Petitioners (especially such who have waited at least seven years space at your doors for reparations) to relieve poor starved Ireland ; raise up the almost lost honor, power, freedom, reputation of Parliaments, by acting honourably, heroically like yourselves, without any fear, favor, hatred or self-ends, by confining yourselves, with the Commons House, to the ancient bounds, rules of Parliamentary Jurisdiction, proceedings, and by endeavoring to excel all others as far in Justice, Goodness and public resolutions, as you do in Greatness and Authority. Which that you may effectually perform, as it is the principal scope of this Plea for your Lordships ; (which whether you stand, fall, or by way of Remitter, recover your ancient rights again, after a violent discontinuance of them for a season, will remain as a lasting Monument to all Posterity of your undubitable just Right to sit and judge in all English Parliaments ) So it shall be the constant prayer of,
Your Lordships devoted Servant, WILLIAM PRYNNE.
From my Study in Lincolns Inn, 7. Junii 1647.
To the Ingenuous READER.
T His Plea for the LORD'S and House of PEERS, was first suddenly compiled and published by me in the year 1647, when Lilburn, Overton, with their Jesuitical and Anabaptistical levelling Confederates endeavored by sundry seditious Pamphlets, libels, Petitions, then printed, dispersed in the City, Army, Country, to extirpate the Lord's and House of Peers, together with the King and Monarchy, by engaging the vulgar Rabble, Soldiers, and Commons to suppress, pull down, or cast off their superior, just, ancient, legal authority over them; not only against the express Laws of God and the Realm, their own Oaths, of Supremacy, Allegiance, Protestation, Covenant, ; but the very Law of Nature itself, universally received amongst all Nations whatsoever: Haec enim lex Naturae▪ apud omnes Gentes recepta est, quam nullum tempus delebit, UT SUPERIORES▪ INFERIORIBUS▪ IMPERENT: Which Law these unnatural Bedlams would now quite obliterate, endeavoring to set up that A • axy & disorder in Government, which Solomon, and God himself by him so much complain of; Eccles. 10.5, 6, 7. There is AN EVIL, I have seen under the Sun ▪ as AN ERROR that proceedeth from the Ruler, Folly (or persons of mean fortune, parts, birth) is set in high dignity, and the rich set in low place: I have seen Servants upon Horses; and Princes walking as Servants upon the earth : Which disorder he thus censures, Prov. 19.10. Delight is not seeml • for a fool, much less for a Servant to have rule over Princes : The sad effects whereof he thus relates; Prov. 30.21, 22. For three things the Earth is disquieted, and for a fourth, which it cannot bear, (the 〈◊〉 and chief whereof is this) For a Servant when he reigneth. To which David subjoins another ill consequence; Psal. 12.8. The ungodly walk on every side, when the vilest of the Sons of men are exalted : which the Chaldee • paraphrase thus glosseth; In circuitu improbi ambulant tanquam sanguisugae, qui sugunt▪ sanguinem filiorum hominum ; the peasantry, when exalted above the ancient Nobility and Gentry, being usually both intollerably proud, insolent, cruel, blo • dy, according to the old observation of Claudians, and others;
This was experimentally verified, not only in Will. Langhamp heretofore, and other particular persons advanced from low degree to places of greatest honor; but in the popular insurrections of John Cade, Jack Straw, Wat Tyler, and others, who intended to murder the King, destroy the Nobles, Judges, Prelates, Lawyers, and chief Gent. they could meet with, than to seise upon their lands, estates, and make themselves Kings, Lord's in their steads, and share the Kingdom, Government between them ▪ and by the Anabaptists proceedings of like Nature at Munster and other places in Germany ; whom the present Levellers of this sect would doubtless imitate, could they get but sufficient power into their hands.
My absence in the Country whiles this Plea was printing, caused many material mistakes of words, and one gross mutilated transposition in Cheddars case, in its first Edition, p. 48, 52. which I could not correct, most of the Books being dispersed before I could get an Errata printed; and the small time I had to compile it, necessitated me to omit many material Records, Presidents Histories pertinent to this Argument: Whereupon to right myself, with the Lord's whose cause I pleaded, and the Readers, I soon after resolved to publish a corrected much enlarged Impression thereof; but other public Employments and publications retarding it, and the whole House of Lord's some few Months after being forcibly suppressed, myself, with sundry other Members of the Comunions House secured, secluded, and after that dispersed and sent close prisoners by Mr. Bradshaws illegal Warrants unto several remote Castles, without any hearing or cause expressed, or recompense for the Injuries, damages thereby sustained; this much augmented Plea hath lain dormant ever since, and had never been awaked to walk abroad in public, had not the late loud unexpected Votes at Westm. of, a NEW KING AND HOUSE OF LORD'S under the Name▪ Notion of ANOTHER HOUSE, passed by some who had lately (c) suppressed, decried, engaged against them both as useless, dangerous, oppressive, burdensome, tyrannical, &c. revived, and raised it out of the Grave of Oblivion.
The Subject matters principally debated and vindicated in it are only two. First, That all the Dukes, Marquesses, Earls, Viscounts, Barons, Lord's of England have an undoubted ancient, just Right, Privilege to sit, vote in all Parliaments of England, without any election by or Commission from the people, with the true grounds thereof. 2ly. That the judicial power, Judicature, and Jugdements in Parliament, belong wholly and solely to the King and House of Lord's, not to the Commons House, and that in all criminal, civil, or ecclesiastical causes whatsoever proper for Parliaments to decide, both in the Cases of Commoners and Clergy men, as well as Peers; who are only triable both in and out of Parliaments by their Peers, here plentifully evinced.
In debating these two points, I have briefly proved the Antiquity of our Lord's and Nobles sitting, • oting in all Parliamentary Great Councils, both under our British, Saxon, Danish, Norman, and English Kings, before any Knights, Citizens or Burgesses were admitted into our Councils, or Parliaments; which having more particularly demonstrated by undeniable presidents, in my Historical Collection of all the ancient Great Councils and Parliaments of England ; in my Antiquity triumphing over Novelty, p. 9, 10.55. to 85. and in my 1, 2, & 3. parts, of an Historical, Seasonable Vindication and Collection of the fundamental Rights, Privileges, Laws, &c. of all English Freemen, printed 1655. 1656. & 1657. (wherein all the Great Councils, and Parliamentary assemblies from Brute to William the Conquerer, are Chronologically collected and epitomized:) I shall refer the Reader thereunto for full satisfaction of the Antiquity of our Parliamentary Councils, and the Lord's constant sitting, voting, judging in them.
2ly, Because many of our late Historians, Antiquaries, Lawyers, and others, derive our Parliament as now constituted, and the calling of Knights, Citizens, and Burgesses to them, from the Parliamentary Council held at Salisbury in the 16. year of King Henry the 1. or at least from King Henry the 2. his reign, (which the forged Imposture styled Modus tenendi Parliamentum, and Sir Edward Cook, seduced by it, would advance as high as Edward the Confessor, as if there had been Knights, Citizens and Burgesses usually summoned to all Parliaments in his reign and ever since;) I have herein given you an account out of our ancientest and best Historians, of all the Parliaments and Proceedings in them, both under King Henry the 1. & 2. and most others under their immediate Successors, infallibly proving there were no Knights, Citizens▪ and Burgesses in the Parliaments held under either of them, and that their first summons to Parliaments (for ought appears) was but in 49 H. 3. not before, since which they have been usually summoned, but yet in a various manner.
3ly. I have evidenced by many memorable Histories, Presidents, Records in all ages: (the most whereof were never mentioned by any who have formerly written of Parliaments) that the Judicature in our Parliaments resides solely in the King and House Lord's, not only in all Criminal cases of Lord's, Peers, Commons, and in all Civil and ecclesiastical businesses, Appeals, and Writs of Error there descided; but likewise in all cases of Elections, breach, or allowance of privilege of Parliament, and misdemeanors relating to the House of Commons themselves, their Speakers, Members, and menial Servants. To which I shall only add, That the late King in his printed Answer to the 19. Propositions of both Houses, June 1642. thus declares: That the LORD'S being trusted with a Judicatory power, are an excellent Screen and Bank between the Prince and People, to assist each against any encroachments of the other; and by just judgments to preserve that Law, which ought to be the Rule between everyone of the three.
4ly, I have herein for the benefit of all Students, Professors of the Law, and others, (who take all Sir Edward Cooks Opinions, Records, for undoubted Oracles, without examination, and swallow down all his mistakes) discovered many of his gross Errors, oversights, misrecitals and pervertings of Records, in matters relating to our Parliaments; evidenced his much magnified Modus tenendi Parliamentum, to be a mere late Imposture, full of mistakes, concerning the Antiquity and Judicature of the Commons House ; and refuted Sir Edward Cooks mistaken Law, as in other points, so in this: That the Kings general writ of summons to any Knight or Esquire to the House of Lord's, (by the name of Knight or Esquire, without any special clause of creating him a Baron or Lord in the Writ.) doth neither ennoble himself, nor his heirs, nor make them Lord's and Barons, though they sit in the Lord's House (as he asserts, it doth;) unless they held by Barony of the King before, and were Barons by their Tenure : the general writs of summons styling them only Knights and Esquires, as before, not Lord's or Barons, and having no clause in them, that will amount to the creation of a Lord, much less of a Baron, which Title, or word Baron is not mentioned in the Writ; nor doth it affix their Lordship or Barony to any particular place, as all Writs and Patents that create men Lord's or Barons use to do. For the further clearing of this point, you may observe, that the writs of summons in the Clause Rolls, do sometimes style the persons summoned, Barons : thus all or most of the writs of summons from 25. E. 3. to 1 E. 4. are directed, Willielmo Baroni de Graystocke Chivaler: Radulpho, Johanni, & Radulpho Baroni de Graystocke ▪ Sometimes the writs style them Lord's ; as Johanni Talbot Domino de Furnival, in 4 H. 5, &c. In Ann: 25, 27, 28, 29, 31, 33, 38 H. 6. and 2 E. 4. the writs are, Henrico Peircy DOMINO de Poymiger, DOMINO de Poynings, DOMINO de FERRARIIS de Groby, Thomae DOMINO de Roos, Richardo Woodvil Militi, DOMINO de Rivers; Roberto Hungerford Mil▪ DOMINO de Mollings, Willielmo Beuchamp, DOMINO de Sto Amando, Jacobo de Fynes, DOMINO de Say et Seal; Edwardo Gray Mil. DOMINO de Groby, H. DOMINO de Poynings, Johanni Sturton Mil. DOMINO de Sturton, Johanni DOMINO de Clinton, Edoardo Nevill DOMINO de Burgaveny, Willielmo Bourchier Mil. DOMINO de Fitzwarren, Henrico Bromflet DOMINO de VESSEY, Thomae Grey DOMINO de Richmond, Tho. Percie Mil. DOMINO de Egremont, Ricardo Wells DOMINO de Willoughby Mil: Richardo Fynes DOMINO de Dacre. Though in most ancient and later writs, the word Dominus is omitted; and the name of the Barony only used▪ Somtimes there is a special clause of Creation in the writ itself, as in Clause 27 H. 6. m. 26. dorso; Henrico Bromfleet▪ Mil▪ crea • ing him & the heirs males of his body lawfully begotten Barons of Vessey. These writs which thus style th • Barons, Lord's, & create them such by special clauses, as patents do, will make those Knights and Esquires, Lord's or Barons, who were none before: but a General writ which terms them only Knights or Esquires ; and gives them neither the Title of Lord's or Barons ; nor creates them such, cannot make themselves or their posterity Lord's or Barons, unless they held by Barony, and then they are Barons only by Tenure, not Writ. This is clear, as I conceive, by the very year-books of 22 E. 3. f. 18. a. where a Juror in the Grand Assise was challenged, because he was a Baner, or Baron, and this Challenge not allowed; car sil soit a BANER, & ne tient pas per BARONI, il seruera in l'assise ; By 48 E. 3. f. 30 b. Brook Challenge 37. where Sir Ralph Everden Knight brought a writ out of Chancery, and also a privy Seal to the Justices, rehearsing that he was a Baron, and commanding them to discharge him from being sworn in Assizes, because Barons ought not to be sworn in any Enquest or recognisance against their wills. Whereupon Judge Belknap examined him, Sil tient per Borony? & sil avera tout ceo temps Venus a Parlement come Baron duist vener ▪ who answered, That he held by a certain part of a Barony, and that he and his Ancestors had always held so: After which, upon good advice he was discharged. The tenure by Barony, and coming to Parliaments in Belknaps opinion being that which makes men Barons, not the general writ of Summons, unless they held by Barony: which Opinion is fortified by An. 3 H. 3. Fitzh. Prescription, 56. M. 4 H. 3. Dower 180. M. 23 H. 3. Partition, 18. Tr. 18. 2 E. 2. Fitz. Assise 383. 39 E. 3.35. b. 34 H. 6.50. Trial. 18.35 H. 6.40. a. Sir Edward Cooks 4▪ Instit. p. 47. Gilbert de Umphrevils case; with what Sir Edward himself hath observed in his 4 Instit. p. 5. which I thought fit to add (for further clearing of this moot-point) to what I have herein collected touching this Subject.
5ly, I have here, p. 57. to 132.243. to 258.264, to 267. 192. to 206, &c. produced many memorable presidents and Records of our Lord's and Barons magnanimous, strenuous, unanimous oppositions of all Regal and Papal Usurpations, Oppressions, Exactions, Encroachments on the people's Liberties, or properties in former ages in our Parliaments; of their care, vigilancy, industry, courage to gain, retain, confirm, and perpetuate to posterity those Grand Charters of our Liberties, and Fundamental Laws, privileges, franchises, which we formerly enjoyed by their valor, and so long contested for both in Parliaments and the field, against the late King, with the prodigal expense of much Christian blood, and many Millions of Treasure; Which yet now at last are almost totally lost, betrayed, deserted, disowned both by the Nobility, Gentry, Lawyers, Clergy and Commonalty of the Nation, through base, unworthy, unchristian, unEnglish, ignoble fear and cowardice, to their eternal infamy and reproach, unless the God of the spirits of all flesh, shall infuse new life, and English Spirits into their spiritless, stupid, timorous, faint-hearted, slavish, and almost despairing Souls, by the serious contemplation of those heroic presidents of their ancestors here represented to their view, especially when publicly assembled in Parliament, and pressed to burden the people with new Aydes and Taxes, though very rare, small and inconsiderable, in respect of the manifold heavy incessant Taxes, Excises, Imposts, which we have for many years last past sustained, to fight ourselves into greater slavery, beggary, confusion every year than other, and hasten the total and final desolation of Church, State, Religion, Laws, Liberties, Parliaments, kingdom, if▪ God of his infinite goodness prevent it not, by induing the Lord's of the Great Council of Parliament, and all the Nobility, Clergy, Lawyers, Gentry, Commonalty, and Soldiery of the Land with Grace, wisdom, understanding, magnanimity, unanimity and activity to know and pursue in this their day, the things which belong to their peace, liberty, ease and settlement; which shall be my daily Litany for them.
6ly, I have here published to your view, the Articles, proceedings, • udgements in Parliament against the two Spencers, Roger M • rtimer Earl of March, King Edward the 2. and Richard the 2. out of the Records themselves, more fully, truly, than they are related by our vulgar Historians, to rectify some mistakes in them, and presented you with the memorable petition of the Commons, and the Kings answer thereunto in the Parliament of 1 Edw. 4. setting forth his pedigree, Title to the Crown at large, disproving the Titles of Henry the 4, 5, 6. branding them as mere Usurpers; condemning Henry the 4. his deposition and murder of King Richard the 2. as a most tyrannical, wicked, bloody, unchristian act, Murder, execrable both to God and men, which dr • w down exemplary Judgments on the land, and occasioned bloody intestine wars; repealing all proceedings, Acts, Ordinances for the establishment of this Usurper : and attainting K. Henry the 6. his Queen, Son, and all their adherents of High Treason : A record never formerly published. And I have cleared these presidents from those false inferences, to prove, the Commons joint interest in the Judicature of Parliament with the Lord's, and justify those exorbitant proceedings, which some have erroneously deduced from them.
7ly, In this plea, I have for the most part recited the passages of our ancient Parliaments and Records, in the same language our old Historians and Records relate them, both to avoid all suspicions of any mistranslation, and because their own language more elegantly expresseth them; and will give greater satisfaction to the learned of all professions (for whose benefit and instruction I have chiefly published them, not for the illiterate vulgars ) than any translation whatsoever. If there be any lack-Latin Lord's or Lawyers of so ignoble education or extraction, that they cannot understand them, I presume they have some Chaplains, Secretaries, Steward, or Clerk belonging to them, or learned friends near them, who can interpret those passages in it, which will be a shame for any Nobleman or Lawyer to profess in public he understands nor; for if Lawyers understand not Latin or French Records when printed; how will they be able to read or make use of them in the Tower, or Treasuries, the principal Magazines both of that kind of learning and Law, which concerns either our Parliamentary or State-affairs; which will be wholly lost in few years more, if all Students of the Law (as many now do) turn English Lawyers only, and cast off the use both of Latin and Law-French in their public Mootes; the readiest method to make them real Ignoramusses, and as void of Law, as of these Languages wherein the Records are registered.
It is our Savior's observation, John 3.19, 20. That light is come into the world, and men love darkness more than light, because their deeds are evil: For everyone that doth evil hateth the light, neither cometh to the light, lest his deeds should be discovered or reproved. And St. Paul complains of the foolish Galatians, whom some had bewitched that they should not obey the truth ; that though at first they so respected him, that if possible, they would have plucked out their own eyes and given them to him ; yet soon after, reputed him to be their enemy, because he told them the truth. I doubt the old and new Lights, and unknown Parliamentary truths, proceedings discovered to the ignorant blind world in this Plea, though amiable, delightful in themselves, and grateful to all true Philopaters, Philologers, and lear • ed Nobles, Statesmen, Lawyers, Scholars, (in this degenerous age, wherein all sorts of Learning, and insight in Records or Parliamentary Antiquities are very much decayed;) will yet be very displeasing to some sorts of ignorant, heady, extravagant persons, who love darkness▪ more than light, because their deeds are evil ; but more especially to the Anabaptistical Levellers, Lilburnians, innovating Publicans and Republicans ; much like the Chaldeans of old, a bitter, and hasty Nation, lately marching through the bre • th of the Land to posses • the dwelling places that are not theirs: they are terrible and dreadful; their judgment and dignity proceedeth of themselves; they are all for violence; they scoff at KINGS, AND PRINCES ARE A SCORN UNTO THEM, as appears by their late Votes, Declarations, Engagements, not only against Kings and Kingship, but the whole House of Lord's, and to • lliterate self-conceited Lawyers, and ignorant Members of the Commons House, who deem that House, and its Committees, if not every Member of it, the only Supreme Judges and Judicature of the Realm, paramount our Kings, Lord's, Laws, Liberties, Great Charters, and all other Courts of Justice, having an absolute, arbitrary, unlimited power, to act, vote and determine what they please, without appeal or consult, which this Plea irrefragably disproves as a most gross and dangerous mistake; for which they will frown upon it, if not • ate and prosecute me as their Enemy. But the Sun must not cease from shining because weak and sore Eyes will be offended with its splendor, nor seasonable truths of most public concernment be concealed, smothered in time of greatest need, because ignorant, erroneous, sottish, • air-braind, Levellers or Innovator will be displeased with, and storm against them, they being always Sweet and lovely in themselves, yea precious to the best of men▪ and will prove victorious in conclusion, though clouded, suppressed, maligned for the pre • ent; yea he who by the publication of such truths, rebukes wise, ingenuous men's extravagant actions and opinions for the present, shall afterwards find more favor with them (when they come to know themselves and their mistakes, by meditating on the truths revealed to them) he • he that flattereth them with his lips, in their exorbitant actions, or erroneous opinions.
I shall therefore recommend this Plea for the Lord's, and all the truths therein discovered, asserted, to the omnipotent • rotection, and effectual blessing both of, THE LORD OF LORD'S, and GOD OF TRUTH, whose Eyes are upon the TRUTH, in this sad age of Errors, Falshoods, Lies, Fraud, and desperate Hypocrisy, wherein truth is fallen in the Streets, and he that dares boldly assert it, is reputed mad, and maketh himself a prey: And shall leave it as a lasting monument to posterity of my Cordial affection to the ancient Parliamentary proceedings, Lord's, Peers, Laws, Liberties, Properties, Great Charters of the English Nation, and my sincere endeavors to plead their cause in the worst of times, against all their Antagonists and professed Enemies, though never so numerous and formidable, albeit to my own private prejudice.
Whatever the Reader shall find wanting in this Plea relating to the Constitution, Summons, Proceedings of our ancient, English Parliaments in general, or to the power, Judicature, Rights, privileges, transactions of our Kings, Lord's, or House of Com. in Parl. in particular, you may read at leisure in my Preface and Tables to An Exact Abridgement of the Records in the Tower of London, from the reign of King Edward the 2. to Richard the 3. and in the Abridgement itself, collected by that famous Antiquarie, Sir Robert Cotton, lately published ; which will better instruct the Readers in all Parliamentary affairs, than all the slight unsatisfactory Treatises of our Parliaments, hitherto published, except this Plea ; which I humbly submit to the friendly Imbrace, and impartial Censure of every Judicious Reader, especially of my own profession, for whom it is most proper; whose general ignorance and mistakes in Parliament Antiquities, proceedings, and matters of the Crown, hath brought some disparagement upon the function, and led others into dangerous public Errors ; which that this Plea may wipe off, and rectify hereafter for the common benefit, ease, settlement, re-establishment of our late dissipated Parliaments, and confused, distracted Nations, shall be the Vote and daily prayer of
Thy unfeigned Friend, and his Countries public unmercenary Servant, WILLIAM PRYNNE.
Lincolns-Inn 6 Decemb. 1657.
A Plea for the LORD'S, AND HOUSE of PEERS. OR, A short, yet full and necessary Vindication of the Judiciary and Legislative Power of the House of Peers, and the Hereditary just Right of the Lord's and Barons of this Realm, to sit, vote, judge in the high Court of Parliament.
T He treasonable destructive design of divers dangerous Anabaptists, Levellers, Agitators in the Army, City, Country, and of Lilburn, Overton, (their Champions, Ring-leaders in this Seditious Plot ) to dethrone the King, unlord the Lord's, new-model the House of Commons, extirpate Monarch • , suppress the House of Peers, and subvert Parliaments, (the only obstacles to their pretended Polarchy & Anarchy ) are now so legible in their many late printed Petitions, L • bells, Pamphlets, so visible in their actings, and public proceedings, that it rather requires our diligence and expedition to prevent, than hesitancy to doubt or dispute them, they positively protesting against, yea denying both King and Monarchy, in their late printed Pamphlets, Remonstrances, with the Power, Judicature of the House of Peers, and their undoubted just Hereditary right to vote, act, or sit in Parliament, because they are not elec • ed by the people as Knights and Burgesses are ; asserting, That they are no natural issues of our Laws, but the Exorbitances and Mushromes of Prerogative, the Wenns of just Government, the Sons of Conquest and usurpation, not of choice and election, intruded upon us by power, not made by the people, from whom ALL POWER, PLACE, and OFFICE that is just in this Kingdom OUGHT TO ARISE; mere arbitrary Tyrants, Usurpers, an illegitimate and illegal power and Judicatory, who act and Vote in our affairs but as INTRUDERS; who ought of right not to judge, censure, or imprison any Commoner of England, even for libelling against them, refusing to appear before them, reviling and contemning them and their Authority to their faces at their very Barr, (as Lilburn, Overton boast and print they did) or breaking any of their undoubted Privileges. To accomplish this their design the better, they endeavor by their most impudent flattery to engage the House of Commons against the House of Peers, the better to pull them down; styling and proclaiming the Commons in their Petitions and Pamphlets,
SECTION. 1. Proving the Lord's ancient undoubted Right to sit and vote in all English Parliaments, with the Grounds thereof, though not elected by the People.
THe sum of all these Levellers object against the Lord's right of sitting, voting, judging in Parliament, is this:
1. To this I answer: first, That our Lord's, Dukes, Earls, Barons, Nobles (yea Archbishops, Bishops, Abbots, Priors too who held by Barony) • ate anciently in all our General National Councils and Parliamentary Assemblies, many hundred of years before the Conquest, both in the Britons and Saxons reigns, by right of their Peerage and Tenures, as now they do, as I have unanswerably proved in My Historical Collection of the ancient Parliaments and Great Councils of England: My Antiquity triumphing over Novelty, p. 56. to 80. And in my 1, 2, and 3. Parts of A Seasonable and Legal Vindication and Chronological Collection of the good old Fundamental Laws, &c. of all English Freemen. Which is likewise attested by Modus tenendi Parliamentum, Sir Edward Cook, Vowel, others, and all our Historians ; Therefore this is a gross mistake, That they are the Sons of Conquest introduced by the Conqueror: The rather, because in all Empires, Kingdoms in the world, though free and never conquered, their Princes, Dukes, Nobles, Lord's and great Officers, have ever sat in all their Parliaments, Senates and General Councils of State, by reason of their Honors and places only, without any popular Elections ; as is clear by these Texts of Scripture, 1 Chron. 23.1, 2. c. 28.1, 2. &c. c. 29.1.6.24. 2 Chron. 1, 2, 3. c. 5.3, 4. &c. c. 23.2, 3.20, 21. c. 30.2, 3, 6, 12. c. 34.29, 30. c. 35.7, 8. Neh. 9.38. c. 10. Esther 1.13. to 22. Dan. 3.2, 3. 2 Chro. 29.30. c. 32.3. Ezra 9.1. c. 10.8. 1 Sam. 5.8. c. 29.3. to 10. Psa. 68.27. Prov. 8.15.16. Isa. 19.11, 12, 13. Jer. 17.25. c. 26.11.16. c. 36.12.14. c. 37.14, 15. c. 38.4.25.27. Dan. 6.1, 6, 7, 8. Jonah 3.7. Psa. 2.2. Isa. 1.23.26. compared together, and by all Historians and Politicians testimonies.
2. Secondly, that they sit there only by the Kings Patent is false: For first, many Peers, Nobles have been created in and by Parliament, at the Commons earnest Petitions, by Patents confirmed in Parliament, of which there are many Presidents. Secondly, though the Kings Writ or Patent create others of them Peers, Barons, without the people's consent, yet the Laws and Statutes of the Realm made by the Commons consents, and approved by the people, allow the King this power, yea authorize enjoin all Lord's, Barons, to sit in Parliament, when thus creaned, if there be no just exceptions taken to them by the Houses; therefore though they are created Lord's and sit in Parliament by the Kings Patents or Writs only, by way of instrument or conveyance, yet originally they are made Lord's, and sit there only by the Laws and Statutes of the Realm, to which all the people have consented; of which more hereafter. Thirdly, all ancient and new Cities, Burroughs who send Citizens or Burgesses to Parliament, and Counties, who send Knights to Parliament, were originally created and invested with this power to elect Citizens, Burgesses, and Knights for the Parliament only by our Kings Letters and Charters, not by the Peoples inherent Right of Election; since none of them do or can choose or send Knights, Citizens, or Burgesses to Parliament without the Kings Charters authorizing them, and his Wr • to elect them first directed to them but only by power and virtue of them; Therefore if the Lord's sitting in Parliament be illegal, unwarrantable, because they sit only by Patents and Writs from the King ; the sitting of Knights, Citizens, Burgesses must be so too, because they are elected only by the Kings Writ, and the people enabled to elect them only by his Patents, the power of creating Counties, Cities, Boroughs, Knights, being originally in the King, as well as the power of creating Lord's and Barons.
3 Thirdly, that the general election of the people is not absolutely necessary, nor essential to the making of a Lawfull King, Magistrate, Counselor of State, Peer, Member of Parliament, (nor yet of a Minister) as the Objectors falsely pretend, who take it for granted as an infallible truth and Maxim of State: For then it will necessarily ensue from hence. 1. That God himself is no lawful King or Governor over all the World, and creatures in it, because not chosen or elected by the General Voice of the Creatures and Mankind to be King over them; and because the greatest part of men reject his Yoak, Laws, Government, Exod. 5.2. Psal. 2.1, 2, 3, 4. Lu. 1.14.27. yet the Lord still reigneth as a Lawfull King over them, by his own Right of Creatorship and Godhead, Psal. 95.3.5. Ps. 96.10. Ps. 97.1. Ps. 99.1. Ps. 100.3. Ps. 103.15. Jer. 10.7. Dan. 4.32.34. Ps. 10.16. Psal. 22.28. Ps. 48.7.
2ly, That Jesus Christ himself, who is a King by birthright, Sonship, and inheritance only, being born King of the Jews, sitting upon the throne of David his Father, and reigning over the house of Jacob forever, by virtue of his Sonship only ; as Mat. 2.2. Lu. 1.32, 33. Ps. 2.6, 7, 8. Heb. 1.5, 8, 9. Acts 13.22, 23, 33. Ezech. 34.23, 24. c. 37.24, 25. Mar. 11.9.10. Isa. 3.6, 7. c. 11.1, 2, &c. Jer. 33. 15, 17, 20, 21. c. 23.5, 6. c. 30.4. Hos. 3.5. Rev. 2.2 &c. resolve, & was not chosen King • is Saints, Church, Subjects, people, but chooseth them to be his Leiges, John 15.16. Eph. 1.4. 1 Pet. 2.9. Rev. 17.14. Deut. 14.2. Ps. 132.13. Psal. 135.4. shall upon this account be no lawful King or Governor over his Saints, Church and Subjects; but a mere Usurper, Intruder, Tyrant over them, (as they style Kings by Birthright, not popular Election) which is the highest blasphemy to affirm.
3ly, Then it will likewise inevitably follow, That neither Moses, Joshua, Nehemiah, Saul, David, Solomon, nor any of the pious Kings of Judah, nor Christ himself, and other Kings who came to the Crown by God's immediate designation, or by descent, birth-right and lineal succession, were just, lawful Governors or Kings, which none dare aver; That the 70. Elders, the Princes ▪ Nobles, chief Captains, Judges, and Rulers under Moses, and their Kings, with other Governors, and the Jewish Sanhedrim, were no lawful Judges, Magistrates, Counsellers of State, or Members of their general Congregations, Parliaments, assemblies, since we read of none of them chosen by the people, but only designed by God himself, or made, created such by their Kings, Governors, who both called and summoned them to their general congregations, assemblies, judicatures, as the premised texts and others evidence. That Joseph, Mordecai, Daniel, Shadrac, Mesec, Abednego, were no lawful Rulers or Magistrates, because made such even by Heathen Kings, not by the people's choice. And that none of the Levites, Priests, High Priests, or Prophets under the Law were lawful, because none of them (that we read of) were made Levites, Priests, High Priests or Prophets by the people's own choice, but by descent and succession in the selfsame Tribe ; or by God's own immediate call and appointment ; as John the Baptist, Christ himself, the Apostles, the 70 Disciples, and others under the Gospel were made Ministers, Apostles, Evangelists, preaching Elders, without the people's call; yet our opposites dare not deny their Ministry and Apostleship to be lawful, being not of men, but by God's and Christ's own call, without the people's.
Fourthly, then it will from hence also follow; that all Hereditarie Kingdoms, which Politicians and Divines generally hold the best of Governments, being the title of Christ himself to his kingdom; all Patents, Commissions in all Empires, Kingdoms, States of the world creating Princes, Dukes, Earls, Lord's, and such like Titles of Honor, (whereby they are enabled in all Christian kingdoms to sit, vote in their Parliaments and Assemblies of State) for making Privy Counsellers, Judges, Justices and other Magistrates, are void, null, illegal; and so all the Laws, Orders Ordinances made, Acts done, and Judgments given by them, are void or erroneous, because they were not chosen, called to these public places, Counsels, Judicatures by the people, but by Emperors, Kings, and Supreme Governors of 〈◊〉 and what a confusion such a Paradox as this would •• eed in all our Realms, in all States, Kingdoms of the world, let wise men consider, and those fools too who make this Objection.
5. Fifthly, if there be no lawful Authority in any State but from the Peoples immediate election, then it will necessarily follow; that Sir Thomas Fairfax is no lawful General, his Officers, Council of Warr no lawful Officers or Council; yea Colonel, and Lieutenant Colonel Lilburn, no lawful Colonel or Lieutenant-Colonel, and ought not to use or retain these titles, as they do, because none of them were called, chosen to those places by the People, or common Soldiers, but made such by Commission from the Parliament, General, or Lord's alone.
6. Sixthly, This paradox of theirs, touching the people's choice, call, to enable Peers to sit in Parliament, or bear any office of Magistracy or Judicature, is warranted by no law of God, in old or new Testament, both which contradict it: by no Laws or Statutes of these Kingdoms, Nations, which absolutely disclaim it, and enact the contrary: by no Original Law of Nature, which as all Politicians and Divines assert, and the Scripture manifests, at first gave every Father a Magistratical and Judicial rule, power over his children, progeny, Family; and made him a King, Prince, Lord over them, without either their choice or call ; the Father and first-born of the family, being both the King, Prince▪ Lord over it, and Priest to it from the Creation till the Law was given, as is generally acknowledged by all Divines: as God himself is King over all the earth, world, as Creator and Father thereof.
7ly, It is very observable, that God himself expressly denied to his own people Israel the free election of their Kings and Supreme Governors, reserving the choice of them only to himself, as his own Prerogative: witness that notable text of Deut. 17.14, 15. When thou art come into the Land which the Lord thy God giveth thee, and shalt possess it and dwell therein, and shalt say, I will set a King over me like as all the Nations that are about me: Thou shalt in any wise set him King over thee WHOM THE LORD THY GOD SHALL CHUSE: not the people. Upon which account, when the Israelites grew weary of the Government of Samuel and his Sons; all the Elders of Israel gathered themselves together, and came to Samuel unto Ramah, and said unto him: Behold thou art old, and thy Sons walk not in thy ways: Make, or Give thou us a King to judge us, like all the Nations : not taking upon themselves the power to nominate and elect their very first King; but referring the choice to Samuel himself: Who thereupon prayed unto the Lord for direction therein: After he prayed, God commanded him to hearken to the voice of the people, and to make them a King, 1 Sam. 8.4. to the end; yet such a one as God himself, not Samuel or the people should appoint; For soon after God told Samuel, that tomorrow about this time he would send him a man out of the Tribe of Benjamin; and thou shalt anoint him to be Captain over my people Israel ; whereupon Saul coming to him at that time, when Samuel saw him; The Lord said unto him, Behold the man whom I spake to thee of, this same shall reign over my people; then Samuel took a horn of oil and poured it upon his head and kissed him, and said, Is it not BECAUSE THE LORD HATH ANOINTED THEE KING OVER HIS INHERITANCE? Who being afterwards brought forth before all the people assembled at Mizpah, Samuel said to all the people, See ye HIM WHOM THE LORD (not I, or you) HATH CHOSEN, that there is none like him among all the people: Upon which all the people shouted and said, GOD SAVE THE KING. 1 Sam. 9.16, 17. c. 10.1.17.23, 24. So that God himself, not Samuel, nor the people, elected and made Saul King over his own people ; which is further evident by the 1 Sam. 15.17.35. After which God rejecting Saul from being King, he both elected, appointed, and anointed David to be King over Israel, 1 Sam. 16.1.12, 13. Psalm. 78, 70, 71. 2 Sam. 7.8. 1 Chron. 28.4. Whereupon all the Tribes, after Saul's death, came to David to Hebron, made a League with him; and anointed him King before the Lord, upon this account; that the Lord had said unto him; Thou shalt feed my people Israel, and thou shalt be a Captain over Israel, 2 Sam. 5.1, 2, 3. acknowledging thereby the choice of their King, to be God's peculiar right, not theirs. After which God himself, to manifest the choice of their Kings to be, not in the people, but in his own disposal (being but his Vicegerents, Substitutes, and sitting upon his throne, to be Kings for the Lord their God, 2 Chron. 9.8. Isaiah 44.28. Acts 13.22.) settled the inheritance of the Crown, and Kingdom of Israel in David, his Sons and posterity forever, appointing Solomon his Son immediately to succeed him, and making him King over his people, as is evident by the 2 Sam. 7.8. to the end, 1 Kings 5.5. c. 6.12. c. 8.20. 1 Chron. 22.20. c. 28.4, 5, 6, 7. 2 Chron. 1.8, 9. c. 2.11. Psal. 89.3, 4, 20. to 38, 2 Chr. 23.3. c. 6, 16. c. 7.18. 1 Kings 15.4, 5. Jer. 33.15.17.20, 21. c. 23.5, 6. c. 30.9. Ezech. 34.23, 24. c. 37.24, 29. Hos. 3.5. Lu. 1.32, 33. Upon which account afterwards, when the ten Tribes revolted from Rehoboam and the House of David against God's institution, and made Jeroboam their King; God thereupon chargeth it upon them as a high encroachment upon his prerogative, in these terms, Hosea 8.4. They have set up Kings, but not by me, they have made Princes, and I knew it not. And hereupon Abijah (heir by hereditary succession to David ) thus charged Jeroboam and all Israel with rebellion against God and Rehoboam therein, 2 Chron. 13, 5, 6, 7, 8. Ought you 〈◊〉 to know ; THAT THE LORD GOD OF ISRA • • AVE THE KINGDOM OVER ISRAEL TO • D FOR EVER, EVEN UNTO HIM AND TO HIS SONS BY A COVENANT OF SALT? But Jeroboam the Son of Nebat, the Servant of Solomon, the Son of David, is risen up, AND HATH REBELLED AGAINST HIS LORD. And there are gathered unto him vain men the children of Belial, and have strengthened themselves against Rehoboam the Son of Solomon, when Rehoboam was young and tender hearted: And now you think TO WITHSTAND THE KINGDOM OF THE LORD IN THE HANDS OF THE SON OF David, and ye have a great multitude, &c. O children of Israel fight ye not against the Lord God of your Fathers, for YOU SHALL NOT PROSPER. And God smote Jeroboam and all Israel before Abijah (the right heir) and Judah, and God delivered them into their hand: And Abijah and his people slew them with a great slaughter: So there fell down slain of Israel five hundred thousand chosen men. The greatest slaughter we ever read of in one battle in sacred or profane Histories. If then God allowed not the free election and nomination of Kings and Supreme Governors to his own people of Israel, their Tribes or Elders, but reserved it only to himself, as his own peculiar prerogative; which they might not intrude upon without high presumption, and exemplary punishments, as the forecited Scriptures, with Judges 2.20. Acts 13.20, 21, 22, 23. undeniably evidence. By what Law of God or Nature any other vulgar rabble or people of God, can now challenge this as their proper birthright, and natural inherent due, to elect all their Kings, all their Supreme, or subordinate Officers, and all Peers of Parliament, (especially in an hereditary kingdom,) transcends my reason to comprehend; unless they will blasphemously tax God himself for injuring his own peculiar people, in usurping upon and depriving them of this their Natural right and freedom.
8ly, The Scripture is most express and positive, That it is God who removeth Kings and setteth up Kings, Dan. 2.28. That the God of Heaven setteth up kingdoms and Kings: That the most high ruleth in the kingdoms of men, and giveth them to whomsoever he will, Dan. 2.44. c. 4.25.34, 35. That promotion cometh neither from the East, nor from the West, nor from the South; but God (not the people) is the Judge, he pulleth down one and setteth up another, Psa. 75, 6, 7. He looseth the bond of Kings, and girdeth their loins with a girdle: He poureth contempt upon Princes, and weakeneth the strength of the mighty, Job 12.18, 19. Whereunto God adds, Prov. 8.15, 16. By me Kings reign, and Princes decree Justice. By me Princes rule, and Nobles, and all the Judges of the earth. Hereupon Samuel used this speech to King Saul : 1 S • m. 15.26.28. The LORD hath rejected thee from being King over Israel. The LORD hath rent the kingdom of Israel from thee this day, and hath given it to a neighbor of thine better than thou. Yea, the Apostle, Rom. 13.1, 2, 3, &c. commands Every Soul to be subject to the higher powers, not only for fear, but conscience sake, upon this ground, For there is no Power but of God: the powers that are are ordained (or ordered) of God ; and they are the Ministers of God to men for good. Hence God and Christ are styled, The only Potentate, THE KING OF KINGS, AND LORD OF LORD'S, The Prince of the Kings of the Earth, 1 Tim. 6.15. Rev. 1.5. c. 17.14. c. 19.16. because they only by mere original right dispose of all Kings, Lord's, Potentates, kingdoms. Upon which reason the Apostle concludes, That all created things in heaven and in earth, whether they be Powers or Principalities, or Dominions, or Powers, are created BY AND FOR CHRIST; that in all things he might have the preeminence, might, and dominion, being exalted far above all Principalities and Powers, Col. 1.16, 17, 18. Eph. 1.20, 21. By what divine, natural, inherent▪ just right or Title then the Commons or Vulgar people of our own or other Realms can challenge to themselves the sole power of electing, setting up and pulling down their Kings, Princes, Lord's, Judges, kingdoms, Principalities, Powers, Dominions, at their arbitrary pleasures: of setting up, pulling down, or electing their Supreme or subordinate Governors, Magistrates, and all Peers of Parliament at their wills; of disposing kingdoms, Powers, Lordships to whomsoever they please (as these Bedlam Objectors plead they may) without contradicting all these Sacred Texts, and intruding upon these royal incommunicable Preheminences, Prerogatives of God and Christ, let all popular pretenders to, or advocates for such a power in the people and Commons of the Realm, resolve me and all others when they are able, against all these Texts, oppugning this their claim and interest.
9. Ninthly, I answer, that a particular, explicit actual choice and election by the people, of any to be Kings, Magistrates, Judges, Ministers, Peers or Members of Parliament, is neither necessary nor convenient to make them just and lawful, except only when the Laws of God, of Nature, of Nations, or the kingdom expressly require it; but only a general implicit or tacit consent; especially when the ancient Laws of the Land, continuing still in full force, and the custom of the Kingdom time out of mind, requires no such ceremony of the people's particular election or call; in which case the people's dissent is of no validity, til that Law and custom be repealed by the general consent of the King, Lord's and Commons in Parliament. Now the ancient Laws, Statutes, and Customs of the Kingdom, enable all Lord's who are Peers and Barons of the Realm to sit in Parliament when ever summoned to it by the Kings Writ, without any election of the people ; and if the Laws and Customs of the Realm were, that the King himself might call two Knights, Citizens and Burgesses to Parliament, such as himself should nominate in his Writ out of every County, City and Borough, without the Freeholders, Citizens, and Burgesses election of them, by a common agreement and consent to such a Law and usage made by their Ancestors, and submitted and consented to for some ages without repeal, this Law and Custom were sufficient to make such Knights, Citizens and Burgesses lawful Members of Patliament, obliging their posterity whiles unrepealed; as well as their Warranties, Obligations, Statutes, Feofments, Morgages, Oaths, and alienations of their Lands, as the Objectors must acknowledge; therefore they must of necessity grant, their present sitting, voting and judging too in Parliament, to be lawful, because thus warranted by the Laws and Customs of the Realm.
10. If all Power in Government, all right of sitting, judging, and making Laws or Ordinances in Parliament, be founded upon the immediate free election of all those that are to be Governed; and if it be of necessity, that all who are to be subject and obey ought to be represented by those who have power in Government ; the Sum of Lilburns, Overtons, and the Levellers reasons against the Lord's Jurisdiction ; then it will of necessity follow, (If this be good Divinity and Law) that the Laws of God, Moses, and Christ himself, should not bind the Jews or Christians, because made without their common consents, or any to represent them: Then the Laws, Decrees of the Medes and Persians, made by their Kings alone, or by them and their Princes, without any representative of their People, (as is evident by Esth. 1.13. to the end: ch. 3.8. to 15. ch. 8.8, 9, &c. c. 9.32. ch. 10.1. Ezr. 1.1, &c. ch. 4.6. to 24. ch. 5.13.17. c. 6.1. to 15. c. 7.11. to 27. Jonah 3.6, 7, 8. Dan. 6, 7, 8, 9.) were mere nullities, and not binding to the commonalty. Then the Laws of David, his Captains and Princes, concerning the Levites, Priests, Temple, &c. 1 Sam. 30.2.45. 2 Chron. c. 22. to ch. 29. with all our own ancient Brit • sh and Saxon Laws, (made by our Kings and Nobles alone, without any Knights, Citizens or Burgesses elected by, or representing the people; as were all our Laws and Acts before Henry the 3d his reign, both before and after the Conquest (as we usually call it) though many of them yet in force and vigor,) With all ancient Laws made by Kings alone being the only Law-makers in all Nations at first, as Justine and others attest, and Ezr. 7.26. Esth. 3.8. Isaiah 33.22. intimate: whence they are styled the Kings Laws, &c. should be mere Nullities by this Doctrine, because not made by the Peoples previous consents and representatives: Yea then the Orders, Votes, Ordinances, and Laws made, or consented to by the Knights, Citizens and Burgesses in Parliam▪ ought not to bind any Ministers, Women, Children, Infants, Servants, Strangers, Freeholders, Citizens, Burgesses, Artificers, or others, (who cannot well, properly be represented but by persons of their own sex, degrees, trade, calling; & so each sex, trade, in each county, Corporation of Engl. should send Members of their own to Parliament to represent them) but only such Freeholders and Burgesses who had voices in, and gave free consent to their Elections, not any who have no voices by Law, or dissented from those elected and returned; Yea then it will necessarily follow; that those Counties, Cities and Boroughs whose Members have been injuriously impeached, suspended, driven away, or thrust out of the House of Commons by the Objectors and the Armies practice, violence (contrary to all former presidents) are absolutely free, exempted from, and not bound by any Votes or Ordinances made, or taxes imposed by the Commons House, because they have no Members to represent them residing in Parliament; and that those Counties and Boroughs whose Knights and Burgesses are dead or absent, are no ways obliged by any Votes, Ordinances, or Grants in Parliament: And then how few in the Kingdom will or ought to yield obedience to any the Acts, Ordinances, or Votes of this present Parliament, or to any Mayors, Sheriffs, Aldermen, or Heads of Houses made by their Votes and Authority, (usually made by election heretofore) or to any Judges, Justices, Governors, Generals, Captains, or other Militarie Officers made by their Commissions or appointment, without the generality of the people's Votes or consent; especially when above half, or three full parts of the Members were absent or driven from both Houses, by the Objectors violence and menaces.
These Answers premised, which have cut off the head of the Objectors Goliath and chief Argument against the Lord's sitting in Parliament; I shall now proceed to the proof of the Lord's undeniable Right and Authority to sit, Vote, and give Judgment in our Parliaments, though not actually elected nor sent to them by the people, as Knights and Burgesses are.
1. It is evident, by the Histories, Records of most ancient and modern Kingdoms and Republics in the world, that their Princes, Nobles, Peers and great Officers of State, have by their Original Fundamental Laws and Institutions, by right of their very Nobility, Peerage, and great Offices, without any particular election of the people, a just right and title to sit, consult, Vote, enact Laws, and give Judgment in all their General Assemblies of State, Parliaments, Diets, Councils ; as might be manifested by particular instances in the Kingdoms, Republics, Parliaments, Diets, and General Assemblies of the Jews, Egyptians, Grecians, Romans, Persians, Ethiopians, Germans, French, Goths, Vandals, Hungarians, Bohemians, Polonians, Russians, Swedes, Scythians, Tartars, Moors, Indians, Spaniards, Portugals, Danes, Saxons, Scots, Irish, and many others: Hence Dionysius Halicarnasseus, Antiquitatum Romanorum l. 2. Sect. 2. affirms, That both hereditary and elective Kings even in the ancientest times, CONSILIUM HABEBANT QUOD EX OPTIMATIbUS CONSTABAT, had a Council which consisted of Nobles and Great men, as Homer and the most ancient Poets attest, Neque (ut nostro seculo) Regum priscorum dominatus erat nimium sui juris, ne{que} ab unius sententia pendebat. Now to deny the like privilege to our English Peers and Nobles, which all Nobles, Peers in all other Kingdoms, Nations, Republics anciently have enjoyed, and yet do constantly enjoy, without exceptions or dispute, is a gross injury, injustice, over-sight; yea a great dishonor both to our Nobility and Nation.
Secondly, By, and in the very primitive constitution of our English Parliaments, for many hundred years together there were no Knights nor Burgesses at all, but only the King and his Nobles : after which, when elected Knights gestes were first sent to Parliament about 49 H. 3. it was granted by the Kings grace, and unanimously agreed by the kingdoms, people's general consents, that our Parliaments should always be constituted and made up, not of Knights and Burgesses only, (elected only by Freeholders & Burgesses, not by the generality of the vulgar people, who would now claim, usurp this right of Election) but likewise of the King, the Supreme Member, by whose writs the Parliaments were and ought to be always summoned, and of the Lord's, Peers, Barons, (ecclesiastical, civil) and great Officers of the Realm, who ought of right to sit, vote, make Laws, and give Judgment in Parliament by virtue of their Peerage, Baronies, Offices, without any election of the people: the Commons themselves being no Parliament, judicatorie, or Law-givers alone, without the King and Lord's, as Modus tenendi Parliamentorum ; Sir Ed. Cook in his 4. Institutes, ch. 1. Mr. Seldens Titles of Honor, part 2. ch. 5. Vowell, Cambden, Sir Thomas Smith, Cowell, Minshaw, Crompton, with others who have written of our English Parliaments assert, and all our Parliament Rolls, Statutes, Law-books resolve, without whose threefold concurrent assents, there is or can be no legal Act nor Ordinance of Parliament made, since the Commons admission to vote in Parliament and assent to Bills, which was but of later times, out of the Kings fr • e Grace.
Thirdly, This right of theirs is confirmed by prescription and custom, from the very first beginning of Parliaments in this kingdom till this present, there being no president to be found in History or Record of any one Parliament held in this Island since it was a kingdom, without the King personally or representatively present (by a Protector, Custos Regni, Commissioners ) as he ought to be, or without Lord's and Peers ▪ anciently styled Aldermen, Heretockes, Senators, Wisemen, Princes, Dukes, Earls, Counts, Nobles, Great men, &c. by our Historians; who make mention of their constant resorting to, sitting, voting, judging in our General Assemblies, and Parliamentary Councils, under these Titles, without the people's Election, (for many hundreds of years before the Conquerors time) in the ancientest Parliamentary Councils we read of under the Britons and Saxons ; witness Beda, Ingulphus, Geoffrey Monmouth, Huntingdon, Matthew Westminster, Florentius Wigorniensis, Malmesbury, Hector Boetius, Speed, and others in their Histories; Antiquitates Ecclesiae Britannicae, Spelmanni Concilia, Tom 1. Mr. Lambard his Archaion, Sir Edward Cook in his Preface to the 9. Report, and fourth Institut. c. 1. M. Seldens Titles of Honor, part 2. c. 5. which I have largely manifested in my Truth triumphing over Falsehood, Antiquity over Novelty, p. 56. to 90. My Historical Collection of the ancient Great Councils, Parliaments, &c: there being little (if any) express or direct mention at all of any Knights of Shires, Citizens or Burgesses in any of our Parliamentary Councils, before the Conquest, or in the Conquerors time, nor yet in the reigns of King William Rufus, Henry the 1. Stephen, Henry 2. Richard 1. King John, or first part of the reign of Henry the 3d, the first direct Writ of Summons for any Knights, Burgesses or Commons to our Parliaments, now extant, being that of Clause 49 H. 3. m. 10, 11. dorso : before which no evident testimony can be produced for their sitting or voting in any great Councils or Parliaments as Members, but only out of the Spurious pretended ancient (though in truth late ridiculous) Treatise, styled Modus tenendi Parliamentum, on which Sir Edward Cook and others most rely: And whereas some conclude, that even in the ancient Saxon Great Councils, the Commons were usually present as Members, being comprehended under the Titles of Sapientes, Seniores populi, Aeldermanni, &c. (which in the dialect of those times signify rather Lord's and Great Men, than Commons or Burgesses, as all accord) or at least wise under these phrases, praesentibus omnibus Ordinibus illius Gentis, cum viris quibusdam Militaribus (rather Soldiers than knights;) of which we find mention in the Council of Bechenceld, Ann. 697. or, omnium Sapientum, Seniorum, & POPULORUM totius Regni: coupled with these pre-eminent Titles of, Omnium Aldermannorum, Principum, Procerum, Comitum, who met together in a General Council under Ine, Anno 713. Or cujuscunque Ordinis viros, in the Council of Clovesho, An. 800. which expressions are now and then mentioned in some ancient Councils and Parliaments, though rarely: yet these are rather conjectural or probable, than direct or punctual proofs of what they assert, whenas the Lord's Title to sit and vote in them is most direct and infallible. And if that of Ingulphus, with other our Historians, and some Lawyers be true, (which Sir Edward Cook, and Mr. Selden deny) that King Alfred first divided the Realm into Counties, as all grant he did into Hundreds and Tithings, and erected Hundred Courts, wherein Knights of the Shire were always, yet are, and ought to be elected, there could be no Knights of Shires at least (if any Citizens or Burgesses ) to serve in Parliament before this division; though there were Earls, Dukes, Barons before his reign (who were present by the Kings summons, not people's elections, at our Great Councils or Parliaments,) as Mr. Selden, and Sir Henry Spelman undeniably manifest, and I have elsewhere proved at large. Their sitting, voting judging therefore in Great Councils, Parliaments, being so ancient, clear and unquestionable ever since their first beginning til now; and the sitting of Knights, Citizens, Burgesses by the people's election, in our ancientest Great Councils, Parliaments, not so clearly evident by History or Records as theirs: we must needs acknowledge, subscribe to this their Right and Title; or else deny the Knights, Citizens, Burgesses rights to sit, vote in our Great Councils, Parliaments, rather than theirs, who have not so ancient nor clear a Title or right as they, by many hundreds of years.
Fourthly, This Right and Privilege of theirs is vested legally in them by the very Common Law and Custom of the Realm, which binds all men; By the unanimous consent of all our Ancestors, and all the Commons of England from age to age assembled in Parliament, since they sat in any Parliaments; who always consented to, desired, and never opposed the Lord's sitting, voting, power or Judicature in Parliament; and by Magna Charta itself, signed and ratified by King John, wherein it is expressly granted, Ad habendum COMMUNE CONCILIUM REGNI de auxiliis assidendis, & de Scutagiis assidendis, submoneri faciemus Archiepiscopos, Episcopos, Abbates, Comites & MAJORES BARONES REGNI singulatim per Literas nostras, &c. And in the Great Charter of King Henry the 3. they are first mentioned and provided for. Hereupon King Henry the third (not long after Magna Charta was granted, and at the same time it was proclaimed, confirmed with a most solemn Excommunication in the presence of all the Lord's, and Commons, by all the Bishops of England, against the infringers thereof) summoning a Parliament at London in the year 1255. to aid him in his wars in Apulia; the Earls and Barons absolutely refused to give him any assistance or answer at all, for this reason; Quod omnes (Barones) tunc temporis non fuerunt juxta tenorem Magnae Chartae suae vocati; & ideo sine Paribus suis tunc absentibus, nullum voluerunt tunc responsum dare, vel Auxilium concedere vel praestare. That ALL THE BARONS were not summoned by him to this Parliament, as they ought to be according to the tenor of Magna Charta; whereupon they departing in discontent, and refusing to sit longer, the Parliament was first adjourned, and at last dissolved , And upon this very ground, among others, the Parliament of 21 R. 2. with all the Acts and proceeding therein were totally repealed and nulled by the Parliament of 1 H. 4. because the Lord's who adhered to the King were summoned by him to the Parliament, and some of the opposite party imprisoned, impeached, unsummoned ; and many of the Knights of the shire were elected only by the Kings nomination, and Letters to the Sherifs: And the Parliament itself kept by force, viris armatis, et sagittariis immensis, brought out of Cheshire, as an extraordinary guard, quartered in the Kings Court at Westminster, and about Charing Cross, and the Muse ; of which Grafton, and other Historians write thus. That they fell into so great pride of the Kings favor, that they accounted the King to be as their fellow, and they set the Lord's at naught; yet few or none of them were Gentlemen, but taken from the plough, and Cart, and other Crafts▪ And after these rustical people had a while courted, they entered into so great a boldness, that they would not let, neither within nor without the Court, to beat and slay the Kings good Subjects; to take from them their victuals, and pay for them little or nothing, at their pleasure (as our free-quar • erers do now) falling at last to ravish men's wives and daughters: And if any man fortuned to complain of them to the King, he was soon rid out of the way no man knew how, or or by whom, so as they did what they listed; the King not caring to do justice upon them, but favoring them in their mis-doings, confiding in them and their guards against any others of the kingdom, which gave the Lieges of his kingdom great matter of commotion and discontent. The bringing up of which guard to Westminster, to force, and overawe the Parliament to effect his designs, is one principle Article exhibited against him by the Parliament, of 1 H. 4. wherein he was forced to resign his Crown, and then deposed. I pray God our new armed Guard and Courtiers at Whitehall and the Muse (of as mean condition as those) fall not by degrees to the self-same exorbitances, contempt of the King, Lord's, Parliament, and oppression of the people, to their general mutining and discontent. In the Parliaments of 6 E. 3. N. 1. & Parl. 2, N. 5.6, 8 9, 8 E. 3. N. 5. 15 E. 3. N. 4. 17 E. 3. N. 2. 20 E. 3. N. 5. 21 E. 3. N. 4. 22 E. 3. N. 1. 25 E. 3. N. 1. 29 E. 3. N. 4. 30 E. 3. N. 1. 37 E. 3. N. 1. 42 E. 3. N. 1. 50 E. 3. N. 1. 51 E. 3. N. 3. 1 R. 2. N. 1. 2 R. 2. N. 1. 3 R. 2. N. 1. 4 R. 2. N. 1. 5 R. 2. N. 65. 6 R. 2. N. 6. 7 R. 2. N. 1. 9 R. 2. N. 1. 8 H. 4. N. 54. We find in these Parliament Rolls, that these Parliaments have been usually prorogued, adjourned from the days they were summoned to meet, and have not say, nor acted at all, because sundry of the Lord's (& some Commons) were not come, but absent by reason of foul weather, shortness of warning, or other public employments: all their personal presence in Parliament being reputed necessary and expedient. And 20 R. 2. N. 8. The Commons themselves in Parliament required the King, to send for such Bishops and Lord's who were absent, to come to though Parliament, before they would consult upon what the Chancellor propounded to them in the Kings name and behalf to consider of. To recite no more ancient presidents: In the Parliament of 2 Caroll, the Earl of Arundel not sitting in the Parliament, being after his summons committed by the King to the Tower of London, about his Sons marriage, May 25. 1626. without the Lord's privity and consent▪ whereby their privileges were infringed, and the House deprived of one of their Members presence; thereupon the House of Peers made this memorable Petition and Remonstrance of their Privileges to the King.
The humble Remonstrance and Petition of the Peers,
MAy it please your Majesty, we the Peers of this Realm, now assembled in Parliament, finding the Earl of Arundel absent from his place amongst us, his presence was therefore called for: But thereupon a message was delivered us from your Majesty, by the Lord Keeper, That the Earl of Arundel was restrained for a misdemeanor which was personal to your Majesty, and lay in the proper knowledge of your Majesty, and had no relation to matter of Parliament. This Message occasioned us to inquire into the Acts of our Ancestors, and what in like cases they had done, that so we might not err in a dutiful respect to your Majesty, and yet preserve our right and privileges of Parliament. And after diligent search made, both of all Stories, Statutes, and Records that might inform us in this case, we find i • to be an undoubted Right, and constant Privilege of Parliament ; That no Lord of Parliament, sitting in Parliament, or within the usual time of Privilege of Parliament, is to be imprisoned or restrained (without sentence or order of the House) unless it be • or Treason or Felony, or for refusing to give surety for the Peace: And to satisfy ourselves the better, we have heard all that could be aleged by your Majesty's learned Counsel at Law, that might any way infringe or weaken this claim of the Peers ; and to all that can be shown or alleged so full satisfaction hath been given, as that all the Peers in Parliament, upon the question made of this Privilege, have una voice consented, that this is the undoubted right of the Peers, and hath been inviolably enjoyed by them.
Upon which Remonstrance and Petition, the King refusing to enlarge him, thereupon the Lord's to maintain their Privilege, adjourned themselves on the 25 and 26 of May, without doing anything; and upon the Kings refusal to release him, they adjourned from May 26, till June 2. refusing to sit, and so the Parliament dissolved in discontent: his imprisonment in this case being a breach of privilege, contrary to Magna Charta. In this very Parliament the Lord Digby Earl of Bristol being omitted out of the summons ▪ of Parliament, upon complaint to the Lord's House was by order admitted to set therein, as his Birthright, from which he might not be debarred for want of Summons, which ought to have been sent unto him, ex debito Iustitiae, as Sir Edward Cook in his 4 Institutes, p. 1. The Act for ttriennial Parliaments, and King John great Charter resolve. And not long after the beginning of this Parliament, upon the Kings accusation and impeachment of the Lord Kimbolton and the five Members of the Commons House, both Houses adjourned, and sat not as Houses, till they had received satisfaction and restitution of those Members, as the Journals of both Houses manifest, it being an high breach of their Privileges, contrary to the Great Charter. If then the Kings bare not summoning of some Pears to Parliament, who ought to sit there by their right of Perage; or impeaching, or imprisoning any Peer unjustly, to disable them to sit personally in Parl. be a breach of Privilege of the fundamental Laws of the Realm, and Magna Charta itself, (confirmed in above 40 successive Parliaments) then the Lord's right to sit, vote, and judge in Parliament is as firm and indisputable as Magna Charta can make it, and consented to, confirmed by all the Commons, people, and Parliaments of England, that ever consented to Magna Charta, though they be not eligible, every Parliament by the Freeholders, people, as Knights and Burgesses ought to be: and to deny this birthright and privilege of theits, is to deny Magna Charta itself, and this present Parliaments Declarations, proceedings in the case of the Lord Kimbolton, a Member of the House of Peers.
Fifthly, The Treatise (entitled The manner of holding Parliaments in England in Edward the Confessors time (befose the Conquest) rehearsed (afterwards) before William the Conqueror, by the discreet men of the Kingdom, and by himself approved and used in his time, and in the times of his successors Kings of England ; (if the Title be true, and the Treatise so ancient as Sir Edward Cook, & others now take it to be) When as its mention of the Bishop of Carlisles usual place in Parliaments; (which Bishopric was not founded till the year of our Lord 1132. or 1134. as Matthew Paris, Matthew Westminster, Roger Howden, Godwin and others attest in the later end of Henry the first his reign:) Its men • ion of the Mayors of London & other Cities, and writs usually directed to them to elect two Citizens to serve in Parliament ; whereas London itself had no Mayor before the year 1208. (being the 9. year of King John ) nor other Cities Mayors til divers years after; nor can any Writs for electing Knights of Shires, Citizens or Burgesses to serve in Parliament, which it oft times writes of, be produced before 49 H. 3. nor any Writs to levy their expenses or wages for their Service in Parliaments, which it recites, be produced before the reign of King Edward the 1. Nor was the name of Parliament, which it mentions and writes of, so much as used by any Author before the later end of King Henry the 3. his reign, after whose reign this Modus was certainly compiled, towards the end of K. Richard the 2. or after, as other passages in it evidence beyond all contradiction) This magnified Treatise, be it genuine or spurious, determines thus of the Kings and Lord's rights to be personally present in all Parliaments.
Ranulf de Glanvil the first writer of our Common Laws, in his Prologue to his book De legibus & consuetuainibus Regni Angliae, (used in the reign of King H. the 2. under whom he flourished, and his Predecessors) writes thus of the Parliamentary Councils in that age, and their Members power to enact Laws. Leges Anglicanas, licet non scriptas leges appellari non videtur absurdum, cum hoc ipsum Lex sit, quod Principi placet, et legis habet vigorem: ease scilicet quas super dubiis in Consilio desiniendis, Procerum quidem Concilio et principis accident authoritate constat esse promulgatas. And lib. 13. cap. 32. f. 110. Cum quis itaque infra assisam Dom. Reg. id est, infra tempus, A Dom. Rege de consilio Procerum, adhoc constitutum, quod quandoque majus quando{que} minus censetur. So as the Parliaments under this King and his Ancestors, consisted only of the King and Nobles, who then made and enacted Laws by the Kings royal assent, without any Knights, Citizens, or Burgesses elected by the people, of which I find no mention in the Parliamentary Councils under this King, who as some erroneously assert, first summoned Knights, Citizens and Burgesses to our Parliaments. In the Parliamentary Council at Clarindon, under King H. the 2. An. 1164. Jo. de Oxonia, by the Kings command (there present) sat President, Presentibus etiam Archiep • scopis, Episcopis, Abbatibus, Prioribus, Comitibus, Baronibus, et Proceribus regni, wherein they made a Recognition of the customs and liberties of his Grandfather King Henry the 1. and other his Ancestors, which ought to be observed by all persons within the Realm, by reason of the discords often happening between the Clergy and temporal Justices, and great men of the Realm. These they reduced to 16 Articles, very much ecclipsing the Popes and Bishops ecclesiastical Jurisdiction. This Recognition the Archbishops, B • shops, Abbots, Priors, Clergy, cum Comitibus Proceribus et Baronibus cunctis una voice, firmly promised in the word of truth, bona fide, to observe and keep to the King and his heirs forever, without male engin. The 11 of these Articles runs thus. Archiepiscopi et Episcopy sicut caeteri Barones debent interesse Iudiciis Curiae (to wit of Parliament) cum Baronibus, quousque perveniatur in judicio ad d • minutionē membrorum, vel ad mortem . Which proves the judicial power of Parliaments to be then only in the Lord's and Barons. In the year 1170. (the 16 of Henry • .) on the Feast of St. Bernard, Rex magnum celebravit Concilium Londoniis cum Principibus et Magnatibus curiae suae, de coronatione Henrici filii sui: So Howden, Anno 1172. Rex Angliae Henricus convocatis regui Primoribus apud Northamptoniam renove • unt Assis • m Clarindoniae, eamque praecepit observari. In the year 1175. King Henry the second and his son held a great Council at York, where the agreement between him and the King of Scots (there present, with most of his Bishops, Abbots and Nobles) was read and confirmed before the King and his Son, the Arehbishop of York, the Bishop of Durham, & Comitibus & Baronibus Angliae. The s • me year Rex magnum congregavit coneslium • pud Windeshores in octavis Sancti Michaelis praesentibus & Rege filio Richardo Cant. Archiepiscopo & Episcopis Angliae, & Laurent • o Dubli • ensi Archiepiscopo. Praesentibus e • i • m Comitibus et Baronibus Angliae, In which some controversies in Ireland were ce • cided.
In the year 1176. King Henry coming to No • ingham on the feast of Sr. Paul's conversion, ibi celebravit Magnum Concilium de statute regni sui, et coram rege filio su • . Archiepiscopis, Episcopis, Comitibus et Baronibus Regn • sui, Communi omnium Concilio divisit regnum suum in sex partes, per quarum singu • a • tres▪ Justiciarios itinerantes constituit ; whose names, Commissions, and Articles are there at large recorded. And the same year this King held another Great Council at London, in which the King Consilio universorum Episcoporum, Comitum et Baronum Regni concessit Regi Siciliae filiam suam. In the year 1177. King Henry the 2. summoned a Great Counc • l to determine the great Controversy between Sanctius King of Navarre, and Alphonsus King of Castile ; whose Advocates propounding and debating their cases in the presence of the King and of his Bishops, Earls and Barons; the King habito cum Episcopis, Comitibus et Baronibus nostris cum deiiberatione consilio, drew up by their advice an award between them under his great Seal, recorded at large in Howden, who writes Comites et Barones Regalis Curiae Angliae adjudicaverunt plenariam, utrique parti supradictae, quae in jure petita fuer • nt, fieri restitutionem . The like they did in the Council of Northampton in other cases held the same year. Anno 1188. King Henry the 2. on the 3d of February held a Parliamentary Council at Gaintington, about 8 or 10. miles from Northampton, where convenerunt unà cum Rege PRAESULES ET PRINCIPES REGNI, de defensione sacrosanctae terrae Jerosolymae tractaturi, where after long debate they made 8. Statutes concerning that voyage. The very same year the Kings of England and France on the 10. of February came to a conference about their Voyage to Jerusalem; cum Archiepiscopis, Comitibus et Baronibus Regnorum suorum, as they had formerly done in the same manner and place, An. 1173. and as they did afterwards An. 1189. Cum Archiepiscopis, Episcopis et Baronibus suis. So as during King Henry the seconds whole reign, we read of no Knights, Citizens and Burgesses electcted by the people present in our Parliamentary Councils, but only the King, Prelates, Earls, Barons and Nobles always mentioned by name, and Judges in them. Only I find this one expression in Howden, An. 1188. Rex statim (apud Gaintington) congregavit Magnum Concilium Episcoporum, Abbatum, Comitum et Baronum, et aliorum multorum tam Clericorum quam Laicorum, (but that these were Knights, Citizens and Burgesses elected by the people, and not persons particularly summoned and nominated by the King himself to be Assessors & Collectors of the Tenths, there to receive their instructions for it, which is most probable, cannot be thence inferred) ubi in publica audientia recitari fecit omnia supradicta capitula quae constituerat de Cruce capienda: et tunc Dominus Rex misit servientes suos, Clericos & Laicos, per singulos Comitatus Angliae ad Decim as colligendas (most likely the aliorum muliorum tam Clericorum quam Laicorum, present at this great Council) secundum praedictam Ordinationem in terris suis transmarinis constitutam, to wit, at Cenomanum, ubi consilio suorum, (to wit, of the Archbishops, Bishops, Earls and Barons there with him) ordinavit, quod unusquisque decimam redditorum et mobilium suorum in eleemo sinam dabit ad subventionem terrae Jerosolymitanae hoc anno (exceptis armis & equis, & vestibus militum, &c.) Sed de singulis urbibus totius Angliae, fecit elegi omnes ditiores, videlicet, de Londonio 200, & de Eboraco 100, & de aliis Urbibus secundum quantitatem & numerum eorum: & fecit omnes sibi praesentari diebus & locis statutis, de quibus caepit Decimam mobilium suorum secundum aestimationem virorum fidelium, qui noverant redditus et mobilia eorum: Si quos autem invenisset rebels, statim fecit eos in carcerari et in vinculis teneri, donec ultimum quadrantem persolverent: similiter fecit de Judaeis terrae suae, unde inaestimabilem sibi acquisivit pecuniam.
Andrew Horn in his Mirrour of Justices, in the reign of King Edward the first, writes,
Sir Edward Cook not only in his Epistle before his ninth Report and Institutes on Littleton, p. 109, 110. But likewise in his 4. Institutes, (published by Order of the Commons themselves this present Parliament, c. 1. p. 1, 2. &c. ) writes thus of the high and Honorable Court of Parliament.
From all these and sundry other Authorities, it is most evident and transparent; That both the King himself and Lord's, ought of right, duty to be personally present in Parl. and ever have been so, as well as the Commons, and neither of them to be excluded, since they all make up but one Parliament, that no Lord's, Commons ought to depart from it without special leave, under pain of amercement, and other penalties, That no binding Law can be passed without their joint consents. And that the Commons alone are no more a Parliament of themselves without the King and Lord's, than the Common Council of London are an entire City or Corporation without the L. Mayor, and Aldermen, or the Covent without the Abbot, the Chapter without the Dean, or the legs or belly a perfect man without the head, neck, and heart.
Sixthly, The ancient and constant form of endorsing Bills in Parliament, began in the Commons house, in all Parliaments since the House of Commons, unanswerably demonstrates the Commons of England's acknowledgement of the Lord's right, to sit, vote▪ assent, or dis-assent to Bills in Parliament, viz. Soit Bail a Seigneurs: let it be delivered, or sent up to the Lord's. Yea, the Commons constant sending up of their own Members, with Messages to the Lord's ; their receiving Messages from them, and entertaining frequent conferences with them in matters wherein their opinions differ; in which conferences the Lord's usually adhere to their dissents, unless the Commons give them satisfaction and convince them, and the Lord's oft times convince the Commons, so far as to consent to their alterations of Bills, Ordinances, Votes, and to lay them quite aside, is an unquestionable argument of their Right to sit and vote in Parliament; and of their Negative voice too : All which would prove but a mere absurdity, superfluity, if the Commons in all ages, and now too, were not convinced, that the Lord's had as good right to sit and vote in Parliament, and a Negative dissenting voice, as well as they; never once questioned nor doubted till within this year or two, by some seditious disciples of Lilburns and Overtons tutoring, who endeavored to evade their justice on them.
Seventhly, This just right of the Lord's is expressly and notably confirmed by all the Commons of England, in the Parliament of 31 H. 8. c. 10. concerning the placing and sitting of the Lord's and great Officers of State in the Parliament House, made by the Commons consent : it being in vain to make such a Law (continuing still till this very day both in force and use) if they had no lawful right to sit and vote in Parliament, because they are not elective, as Knights and Burgesses are. And likewise by the Statute of 39 H. 6. c. 1. made at the Commons own Petition, to repeal the Parliament held at Coventry the year before; and all proceedings of it, by practice of some seditious persons; of purpose to destroy some of the great Nobles, faithful and lawful Lord's and Estates, merely out of malice, and greedy and insatiable covetousness to possess themselves of their Lands, possessions, offices and goods; whereby many great injuries, Enormities and Inconveniences, well nigh to the ruin, decay, and universal subversion of the kingdom ensued. The very design of our Lilburnists, Sectaries, and Levellers now, out of particular malice and covetousness, to share the Lord's and all rich Commoners lands and estates between them, being poor indigent covetous people for the most part, scarce forty of them worth one groat, at least before these times and wars.
8ly. This apparent Right of theirs, is undeniably ratified, acknowledged by the very words of the Kings writs in all ages, by which the Lord's themselves are summoned to the Parliament, running in this form.
Carolus, &c. Charissimo consaguineo suo Edwardo Com. Oxford. salutem: Quia de advisamento & consensu consilii nostri pro quibusdam arduis et urgentibus negotiis, Nos, statum et defensionem Regni nostri Angliae, & Ecclesiae Angli canae concernentibus, quoddam Parliamentum nostrum apud Civitatem nostram. Westmonasterium, 12 die Novemb. prox. futuro tenere ordinavimus, et ibidem vobiscum, cum Praelatis, Magnatibus et Proceribus dicti regni nostri colloquium havere, ettractare; Vobis sub fide & ligeantiis quibus nobis teneamur firmiter injungendo, Mandamus, quod consideratis dictorum negotiorum arduitate, & periculis minentibus, cessante excusatione quacunque, dictis die et loco personaliter inter sitis Nobiscum, ac cum Praelatis, Magnatibus, Proceribus praedictis, super dictis negotiis tractaturus, vestrumque consilium impensurus, sicut Nos et honorem nostrum, ac salvationem et defensionem Regni et Ecclesiae praedictorum, expeditionem que dictorum negotiorum diligitis, nullatenus omittatis, Teste, &c.
Which writs firmly require and command their personal presence, counsel and advise in all Parliaments, without any excuse, and that by the faith and allegiance which they owe to the King, and as they do tender the King and his honor, the salvation and defense of the Realm and Church of England, and the dispatch of the arduous and urgent businesses which concern them. Which is likewise seconded, expressed in the very words of all the writs for election of Knights and Burgesses, the form and substance whereof are ancient, and can recive no alteration nor addition but by Act of Parliament, as Sir Edward Cook resolves. By this Writ, the Prelates, Great men, Nobles of the Realm are summoned to the Parliament, there to treat and confer with the King, of the arduous and urgent affairs and defense of the King, Realm, and Church of England, as the first Clause of the writ, Carolus, &c. quia, &c. pro quibusdam arduis et urgentibus negotiis; Nos Statum & defensionem Regni nostri Angliae, & Ecclesiae Anglicanae concernent: quoddam Parliamentum nostrum &c. teneri ordinavimus; & ibidem cum Praelatis▪ Magnatibus & Proceribus dicti Regni nostri colloquium & haberet tractare, Tibi praecipimus , And the Commons are summoned, to perform and consent to those things which shall there happen to be ordained by this Common Council of the Kingdom, &c. And if they are thus summoned, not to treat amongst themselves as an independent, entire Parliament; but to confirm and consent to what the King, Prelates, Great men, and Peers (the Common Council of the Realm ) shall ordain about such affairs; as they must of necessity admit the King, Lord's and Peers to be altogether as essential (yea more principal eminent) Members of Parliament, though not elective as the Knights and Burgesses, who are but summoned to consent to and perform what shall happen there by their common advise to be ordained; or at least to consult and advise with them, as their inferiors, not to over-rule them, as their superiors, and the only Supreme power, authority in the Kingdom. So if they will totally exclude either King or Lord's from the Parliament (who are distinct, principal and essential Members of it as well as the Commons, and have always been so reputed until now) the Commons may sit alone as Cyphers, but not as a Parliament or Council, to vote, impose, or act anything that is binding to the people; since regularly they neither are, nor ever yet were in any age no more a Parliament in any case without the King and Lord's, then the King and Lord's alone are now a Parliament (though anciently they were so of themselves) without the Commons, or the trunk of a man, a perfect man without head or shoulders. If 3. be jointly empowered or commissioned to do any act by Commission, Deed, or Warrant, any one or two of them can do nothing without the third. If many be in Commission of the Peace, Sewers, or the like & three of the Quorum jointly, to act therein jointly, if any one of the three be absent or dead, all the rest can do nothing, because their authority is joint, not single. In Parliament itself, if either house appoint a Committee of 3, 5, or 7. to examine, act, or execute anything: if but one of this number be absent, or put out, the rest can do nothing that is legal or valid, even by course of Parliament; neither can either House sit and vote as a House, unless there be so many Members present, as by the Law and custom of Parliament will make up an House, as every man's experience can inform him. If these Levellers then will absolutely cut off or exclude the King or Lord's from the Parliament, they absolutely null and dissolve it: and the Act for continuing this Parliament cannot make nor continue the Commons alone together as a Parliament, no more than the Lord's or King alone without the Commons; the King or either house alone being no Parliament, but both conjoined and enlivened with the Kings personal or representative presence. The cutting off the head alone or of the head and shoulders, altogether destroys and kills the body Politick and Parliament, as well as the body natural. If the King dies, or resigns his Crown, or be deposed, the Parliament thereby is actually dissolved, as it was resolved in the Parl. of 1 H. 4. n, 1, 2, 3. 1 H. 5. n. 26. 4 E. 4.44. and Cooks 4 Institutes, p. 46. The last Parliament of 21 Jac. dissolved by his death, So if the Lord's or Commons dissolve and leave their House, without any adjournment, or if the King by his Writ dismiss, or dissolve either of the Houses, the Parliament is thereby dissolved, as the forecited Presidents, and the latter clause of the writ for the election of Knights and Burgesses manifests. And a new kind of Parliament consisting only of Commoners, when the old one (only within the Act for continuing this Parliament made up both of King, Lord's, and Commons) is dissolved; neither will nor can be supported or warranted by the Letter or intention of this Law, or any other Law, custom, or right whatsoever.
Ninthly, All the Petitions of the Commons in all ancient & modern Parliaments to the King, & Peers, for their redress of grievances, recorded in our ancient Parliamentary Rolls. The usual Prologue to most of our ancient printed Statutes, in the Statutes at large, & in Poulton, The King at the request of the Commons & of, or by the assent of the Prelates, Dukes, Earls, Barons, and other great men there assembled, hath ordained these things (or Acts) underwritten: all Acts of Parliament now extant, usually running in this form; The King with the assent of the Lord's Spiritual and Temporal in Parliament hath ordained; And be it enacted by the Kings moct excellent Majesty, the Lord's Spiritual and Temporal in this present Parliament assembled. The famous Petition of Right, 3 Car. so much insisted on, beginning thus. Humbly show unto our Sovereign Lord the King, the Lord's Spiritual and Temporal, and Commons in Parliament assembled, thus answered by the King; Let right be done as is desired. The Act for continuing this Parliament, made by the King and Lord's, as well as by the Commons, (who never intended to exclude themselves out of this Parliament by that Act, or that it should continue if either of them were quite dismembered from it) with all Acts and Ordinances since. Yea the very Protestation, and Solemn League and Covenant, taken by the Commons, Lord's and prescribed by them to all others throughout the three kingdoms, which couple the Lord's and Commons always together (neither of them alone being able to make any binding Act nor Ordinance to the Subjects, unless they both concur, and have the Kings royal assent thereto no more than one Member alone of the House can make a House ) and rank the Lord's always before the Commons, and the King before them both; so firmly hold forth, establish the Lord's and Kings undoubted Rights to sit and Vote in Parliament, and decry this new invented Monopoly of a sole Parliament of Commons, without King or Lord's, and that absolute Sovereign Power these Lilburnists, new Lights have spied out and set up for them in Utopia ; that impudency itself would blush to vent such mad, absurd, irrational Frenzies and Paradoxes as these crack brained persons dare to publish; and they may with as much truth and reason argue, that one man is three; that the Leggs and trunk of a man are a perfect man, without head, neck, arms, and shoulders ; or that the Leggs, Ribs, Bowels of the Body are and ought to be placed above the head, neck, shoulders; as that the House of Commons are or ought to be an entire Parliament; the sole Legislative Power, the only Supreme Authority, paramount both King and Lord's ; who must not now have so much as a Negative voice, to deny or contradict any of the Commons Votes, or Ordinances, though never so rash, unjust, dishonorable, prejudicial or dangerous to the whole Kingdom; as these new Dogmatists affirm.
Tenthly, The Commons themselves in their joint Declaration and Resolution with the Lord's, this Parliament, concerning his Majesty's late Proclamation, 9 August 1642. printed by their special order declare and style his House of Peers to be, the Hereditary Counselors of the Kingdom. The like they declare in their Declaration of 16 January 1642. Mr. John Pym in his Speech at Guildhall in London, 14 January 1642. (made and printed by the Commons special order) asserted; That the Lord's have an Hereditary interest in making Laws in this Kingdom. The Commons House in their Remonstrance of the State of the Kingdom, 15 December 1641. affirm, That the Peers are the Kings Great Council: That the King summoned the Great Council of Peers to meet at York the 24. of September, and there declared a Parliament to begin the 3. of November following. In which Parliament when the Lord's and Commons met; they add▪ But what can we the Commons do without the conjunction of the House of Lord's? and what conjunction can we expect there, when the Bishops and Recusant Lord's are so numerous and prev • lent? thereby confessing that without the Lord's concurrence (who are the Great Council of the Realm) the Commons can do nothing at all in Parliament: since all Laws, Ordinances, Taxes, Votes that are valid and binding to the people, must pass Both Houses, and have the Lord's as well as Commons assent ; as they resolve in sundry printed Rem • nstrances, & Declarations, mentioning Both Houses of Parliament, • nd their concurrence to all things therein concluded ; and the King likewise in his. The Lord's and Commons in their Declaration of the 5th of August 1645. to the High and Mighty States General of the United Provinces ; printed in A Collection of Ordinances of Parliament, p. 699, 700. complain thus to them of this misinformation of their Ambassadors, June 20. 1645. The Lower House hath caused the Chamber where they sit in, to be hanged with Tapistry, which was heretofore never so. It is said it is done, that the Lord's changing their Chamber, shall come and sit in the House of Commons, and so to be both together reduced into one body, and the better agree by number of Votes: When heretofore the Parliament was full, then the Lord's Chamber did consist of about 126. or more Votes, and the Lower House of above 500 Votes; and they have always been in several Houses, and the one could not conclude anything for a Resolution of the King, unless the other House did also consent; but now the King is absent, and the Vpper House should now be melted into the Lower; and in the Common Assembly of about 26 Lord's which are now here, and some 200 Commoners, so the most Votes should rule and Ordain all matters: Thus much we are told, and that it tends to shun many disputes, and hindrances which happen in their resolution every day. The Lord's remain constant to maintain their Rights, and say: this is to take away all their Right and prerogative, taking away their House; and so to bring all the power under the Commons. • o which Misinformation the Commons, (and Lord's too) returned this Answer to the States. My Lord's, the Commons are charged with endeavor of altering the fundamentals of Parliament, by taking away the House of Peers, and melting it into the House of Commons, when as there was never any debate in the House of Commons concerning a • y such matter, nor was the same ever intended or desired by the said House. After this the whole House of Commons in their Declaration of the 17 Aprilis 1646. of their true Intentions concerning the ancient and fundamental Government of the Kingdom ; thus positively declared to all the world; That our true and real Intentions are, and our endeavors shall be, to maintain the ancient and fundamental Government of the Kingdom By King, Lord's and Commons: that we have only desired, that with the consent of the King, such powers may be settled in the two Houses, without which we can have no assurance but that the like or greater mischiefs, which God hath hitherto delivered us from, may break out again, and engage us in a second and more destructive war. Seeing then the very Commons House themselves in these and sundry other printed Declarations have so fully, so frequently declared, resolved the Lord's ancient undoubted Hereditarie right and interest to sit, vote and assent unto all Laws, Ordinances, Proceedings in Parliament, as the Great Council, and Counselors of the kingdom, and acknowledged this their Privilege and the House of Peers to be a part of the fundamental Constitution and Government of this kingdom, which they are resolved to maintain, and not to alter: and that they never intended nor desired, much less endeavored the altering the fundamentals of Government by taking away the House of Lord's; How any Commoners, Levellers or others can now dare to question, deny or oppugn this their hereditary fundamental right of Peerage, or attempt the actual abolishing of the House of Peers, without the highest Impudency, Treachery, Absurdity, and incurring the Crime of a New Gun-powder Treason, to blow up the House of Lord's afresh, which the old Jesuitical Popish Gun-powder Traitors only attempted, but could not accomplish, transcends my understanding to comprehend.
11ly, The General Council of the Officers of the Army in their Declaration made at Windsore ; about January 1647. presented to the Lord's House by Sir Hardress Waller ; asserted, The hereditary Legal Right of the Lord's and their House in Parliament, and the Armies fixed resolution to uphold and maintain them and their Privileges with their swords. And if John Lilburns printed Letter to the Speaker, July 8 1648. p. 26, 27. may be credited, Lieutenant General Cromwell himself, protested to him and others at the Lord Whartons house, and that upon his conscience in the sight of God, That the Lord's had as true a Right to their Legislative and Iurisdictive power over the Commons, as he had to the coat on his back, and that he and the Army would support the same. How dare then any Levellers or Officers in the Army or elsewhere to question or attempt to abolish this their undoubted right to sit, vote▪ and exercise a legislative and Juridical Jurisdiction in Parliament, and that over Commons themselves in cases which concern their Peerage, and in cases not triable properly elsewhere but only in Parliament?
12. Twelfthly, These very Sectaries and Levellers themselves have acknowledged, asserted this Right & Power of the Lord's all along this Parliament till of late, as appears by their several Petitions and Complains to them upon sundry occasions heretofore; by their resorting to them for Justice against Strafford, Canterbury, and others; Yea Jo. Lilburn himself, till his late quarrel with them, not only acknowledged their very power of Judicature, but highly applauded their Justice, in his own cause; Petitioning and suing to them not only for reversal of the sentence against him in Starchamber, but likewise for damages and reparations against his Prosecutors, pleading his cause by his Counsel before them, as his proper Judges ; who thereupon by judgment of the House, vacated the Decree against him, as illegal; voted him Damages, and passed him an Ordinance for the recovery and levying thereof; all which he himself hath published in sundry of his printed Pamphlets, wherein he acknowledgeth and extolleth their Justice. Take but one passage for all in his Innocency and Truth justified, p. 74, 75. If I be transmitted up to the Lord's, I confidently believe I shall get forward, out of the former experiences of their Justice there, & I will instance two particulars. First, when I was a Prisoner in the Fleet, and secondly, May the fourth, one thousand six hundred forty one. The King accused me of High Treason, and before the Lord's Bar was I brought for my life; where, although one Littleton, servant to the Prince, swore point blank against me, yet had I free liberty to speak for myself in the open House; And upon my desire, that Master Andrew's also might declare upon his Oath what he knew about my business, it was done; And his Oath being absolutely contradictory to Master Littletons, I was both freed from Littletons malice, and the Kings accusation, at the Bar of the whole House: And for my part I am resolved to speak well of those that have done me justice, and not to doubt they will deny it me, till such time as by experience I find they do it. And at that time he was so much for the Lo • ds, that he writes most disgracefully, derogatorily of the Commons House, (and other his Confederates by his example) tells them of their want of power, injustice, and illegal proceedings quarrels only with them, and their Committees, for their delays and injustice towards him: telling them to their faces in many of his former, and late printed Libels: That they have no power at all to commit or examine him, or any other Commons of England without the Lord's: nor yet to give or take an Oath: That they are but a piece, and lowest part of the Parliament, not a Parliament alone; That they can make no binding Votes, Ordinances or Laws, nor commit nor command any Commoner, without the Lord's, and in one or two Pamphlets more he endeavors to prove them to be now no lawful house of Commons, at all ; nor would he ever acknowledge them to be so; and that he would make no more conscience of cutting theirs and the Lord's throats (the Tyrants and Oppressors at Westminster) than of killing so many Weasels and Polcats ; with many other like scurrilous and mutinous expressions. His own printed Papers, Petitions, Actions therefore are an unanswerable confutation of his malicious cōtradictions of their Authority and judicature since, for their exemplary justice on him: And he must either now re-acknowledge th • ir right of sitting, voting, judging in Parliament to be lawful, or else renounce his own former Petitions and addresses to them for justice; retract all his former printed Papers, asserting their judicature, and extolling their justice; yea disclaim their judgment for vacating his own sentence, in the Starchamber, their awarding him damages, and passing an Order to recover them, as merely null and void, being made before no lawful nor competent Judges, as now he writes, since not elected by the Peoples Vote. Let those his followers, who admire him for his Law, observe these his palpable, invincible contradictions, and be ashamed and afraid to follow such an ignorant erroneous guide, who writes only out of malice, faction, not of judgment, as his contradictions evidence.
13ly. The Acts for preventing the inconveniencies happening by the long intermission of Parliaments. And to prevent the inconveniences which may happen by the untimely adjourning, proroging, or dissolving the Parliament (made this Parliament, and assented to by the King at the Commons importunity) confirm the Lord's interest, right, to sit and Vote in Parliament beyond all dispute, and give them now power to summon a Parliament themselves in some cases, in default of the King, his Chancellor and Officers.
14ly. The ancient form still continued till this day, of dismissing and dissolving Parliament, the King licenseth THE LORD'S and COMMONS TO DEPART HOME, and TAKE THEIR EASE. 37 E. 3. n. 34. 38 E. 3. n. 18. 40 E. 3. n. 16. 43 E. 3. n. 34. 45 E. 3. n. 8.13. 47 E. 3. n. 7. (and all Parliaments since) proves their right of sitting in, and attending the service of the Parliament in person (without special license of the King, dispensing with their absence) during its continuance, in despite of all ignorant cavils to the contrary, The Kings license of them to depart being void and nugatory, if not bound by Law to attend the Parliament in person, as well as the Commons.
15ly. Finally, this hereditary right of the English Barons, Lord's, is demonstrated, resolved in this very clause of their Patents of creation; when first created Earls or Barons, inserted into all Patents since, 20 H. 2. and implied by our Laws, though not precisely mentioned in all the ancient Patents of creation before. Volentes & per praesentes concedentes pro nobis, haeredibus, & successoribus nostris, quod praefotus A. Comes (vel Baro, &c.) S. & haeredes sui masculi, ut Comites, vel Barones, de S. in omnibus teneantur, tractentur, & reputentur, et eorum quilibet habeat, teneat, et possideat sedem et locum in Parlamentis nostris, haeredum et successorum nostrorum in • ra regnum nostrum Angliae, inter alios Comites (vel Barones) ut Comes, vel Baro. Than which nothing than be more positive and direct in point.
I shall close up all the premises with two memorable Clauses in two writs of Summons to Parliament, evidencing not only the undoubted right, but absolute necessity of the Lord's personal fitting, voting, and advising in our Parliaments.
In the Parliament held at York, in the 6 year of King Edward the third, the Archbishop of Canterbury, with some other Bishops and Nobles being absent, thereupon the Prelates, Nobles, Knights and Burgesses there present refused to act anything, and resolved they could conclude nothing by reason of their absence: whereupon they prayed the King to adjourn the Parliament, and by a new Writ to summon the Archbishop, and all other Bishops and Lord's then absent personally to appear at York on the day whereto the Parliament was adjourned, under a penalty, as is evident by these Clauses in the Writs of Summons then issued. Rex e venerabili in Christo Patri eadem gratia Archiepiscopo Cantuar. &c. Verum quia dictis negotiis in eodem Parliamento praepositis, quae salvationem jurium Coronae nostrae, & regni nostri intime contingunt, Et nobis incidunt multum cordi, per Praelatos, Proceres, & Milites Comitatuum tunc ibidem praesentes deliberato consilio responsum existit, quod in tam arduis negotiis sine vestri, ac aliorum Prelat. ac Magnat. et Procerum prodictorum absentium praesentia, consilium et assensum praebere non possunt, nec debent: Ita quod nobis cum insta • a suppli • 〈◊〉 Pa • liam. illud usque ad diem Mercur • i • octav • s Sancti Hilari, prox. i • de futur. continuari seu pro • ogari & inte • im vos e • caeteros Prelatos, et Proceres tunc absentes convocari faceremus. Ac nos, quanquam hu • usmodi • i • tio no • s d • m • s • e • periculosa plurimum vide • tur, eorum Petitioni in hac parte annuentes, &c. Parliamentum praedictum usque ad octav. praedictas duximus continuandum seu prorogandum. Ac Praelatis, Magnatibus, Militibus, Civibus, & Burgensibus inj • nximus, quod tunc ibid. intersint, quacunque excusatione cessante, ac omnibus aliis praetermissis. Ne igitur contingat (quod absit) dicta negotia ad nostri & regni nostri damnum, & dedecus per vestri seu aliorum ABSENTIAM, ulterius prorogari, vobis in fide & dilection quibus nobis tenemini, et sub periculo quod incumbit district iniungendo mandamus, quod omni excusatione cessanie sitis personaliter apud Ebor. in dictis Octab. nobiscum, & cum caeteris Praelatis & Magnatibus dicti regni nostri super dictis negotiis tractaturus, et vestrum consilium imp • nsurus. Scientes, quod si per VESTRAM ABSENTIAM CONTIGERIT dicta negotia (quid absit) ulterius retardari, dissimulare non poterimus, quin AD VOS EXINDE, SICUT CONVENIT GRAVITER CAPIAMUS, Teste Rege apud Ebor. 11 Die Decembris. Eodem modo mandatum est 17 aliis Episcopis, 13 Abbatibus, & 40 Magnatibus, & aliis. And in another writ of Summons the same year to the same Archbishop of Canterbury, there is this Clause inserted against making any Proxy. Scientes pro certo, quod nisi evidens et manifesta necessitas id exposcat non intendimus Procuratores seu Excusatores pro vobis admittere ea vice, propter arduitatem negotiorum praedictorum. Which Clause amongst other reasons was then inserted, because the Clergy in a Parliament held at Eltham some two years before, refused to grant this King an aid for the defense of Ireland; by reason of the Archbishops absence from it, adjourning their answer to this aid, till they all and the Archb • shop ass • mbled together in a future Convocation, to be summoned by the Kings writ, as the Claus. Rol. An. 4 E. 3. m. 3. dorso record • . Thus the Bishops and Clergy refused to grant an aid to King Henry the 3. Anno 1232. and likewise another aid to the Pope, Anno 1244. because many of the Bishops and Abbots who were summoned to the Parl. then held, were not present. Adding; Tangunt ista Archiepiscopos necnon universos Angliae Praelatos; cum ergo Archiepiscopi, Episcopy, & alii Ecclesiarum Praelati sint Absentes, in eorum praejuditiis respondere nec possumus nec debemus. Ouia • id • cere praesume • emus in prejuditium omnium Absentium fieret Praelatorum. All excellen • Presidents both for the Lord's and Commons in all succeeding ages, not to vote or act anything, or grant any aids, or Subsidies upon any occasion, menace, or entreaty; whiles their Members who ought to be personally present are absent, much more when forcibly secured, or secluded by internal confederacy, or external armed violence, or the whole House of Peers sequestered or suppres • ed by factious, seditious, Levellers, who now design their total and final extirpation out of their future New-modelled Parliaments.
Having thus impregnably evinced the Lord's undoubted right to sit and vote in Parliament, though they be not elective by the people's voices, as Knights and Burgesses are; I shall next discover unto our illiterate Ignoramusses, who oppose their right, the justice, good grounds and reasons of our Ancestors, why they instituted the Lord's to sit and vote in Parliament by right of their very Nobility and Peerage, which will abundantly satisfy rational men, and much confirm their right.
First, the Nobles and Great Officers in all Kingdoms, and in our Kingdom too, in respect of their education, birth, experience, employments in military & State-affairs, have always been generally reputed the wisest, most experienced Common wealths men, best able to advise, Counsel the King and kingdom in all matters of Government, Peace, or War; as our Historians, Antiquaries, Pol • tians, Records, acknowledge and attest; whence they were anciently styled Aeldermen, Wisemen; Magnates, Optimates, Sapientes, Sapientissimi et Clarissimi viri: Conspicui, Clari{que} Viri, Primates, Nobiles, &c. in our Historians and Records : our Parliaments in that respect being frequently styled in ancient times, Concilium SAPIENTUM : upon which Grounds our Kings, Lord's, and Commons too, (when ever they recommended Counselors of State to the King in Parliament, made choice of Lord's, and other Peers for for their Privy Counselors, as most wise, able, discreet.) Therefore it was thought fit, just and equal, the King should ever summon them to the Parliament by his Writ, without any election of the people, for their own inherent wisdom, excellency, valor, learning, worth; the Original cause of advancing, enobling them at first, as is expressed in their Patents : and evident by these Scripture Texts. Esth, 1.13, 14. Isaiah 19.11, 12, 13. Jer. 5.5. c. 10.7. c. 51.57. Dan. 2.48. c. 6.1, 2, 3. Gen. 41.39.40. Psal. 105.21, 22. compared together. This ground of calling the Nobles to the Parliament, is intimated in the very words of the summons, Et ibidem VOBISCUM Colloquium habere & tractare de arduis & urgentibus Regni & Ecclesiae Anglicanae negotiis, VESTRUMQUE CONSILIUM IMPENSURI, &c. Et hoc nullatenus omittatis : which clause (recited in the Commons writs of election likewise) implies them to be men of most wisdom and experience, able to counsel and advise the King in all hit weighty, arduous affairs both of the Kingdom and Church: whence by Hereditary ancient right they are, THE KINGS GREAT COUNCEL, and so acknowledged by the Commons themselves this last Parliament. I could give many instances wherein the Commons in Parliament have extraordinarily applauded the Lord's and Peers for their great wisdom, and specially desired their wholesome Counsel, as persons of greater wisdom and experience than themselves: but for brevity sake I shall cite only these ensuing Records. In the Parliament of 21 Edw: 3. rot. Parl. n. 4, 5. Will. de Thorp in the presence of the King, Prelates, Earls, Barons, and Commons declared, that the Parliament was called for two causes: The first concerning the wars which the King had undertaken by the consent of the Lord's and Commons against his Enemies of France. The second, how the Peace of England may be kept. Whereupon the King would the Commons should consult together, and that within four days they should give answer to the King and his Counsel what they think therein. On the fourth day the Commons declare, That they are not able to counsel anything touching the point of War; wherefore they desire in that behalf to be excused: And that the King will thereof advise with his Nobles and Council, and what shall be so amongst them determined, they the Commons will thereto assent, confirm, and establish By which it is evident the Commons then reputed the Nobles more wise and able to advise the King in matters of war than themselves, who confessed their inability therein, and therefore submitted to assent to whatever the Nobles and Council should therein advise Him. 28 Edw. 3. n. 55, 58. The Commons submit the whole business of the Treaty of peace with France, to the order of the King and of his Nobles. And 36 Edw. 3. n. 6. The LORD'S only advise the king touching Truce or War with Scotland. In the first Parliament of 15 Edw. 3. n. 11. the Commons having delivered in divers Articles concerning the redress of grievances and public affairs to the King, prayed, that unto the Wednesday ensuing their Articles may be committed to the Bishops, Barons, & other wise men there named, by them to be amended; which the king grauted: whereas the Lord's exhibited their Articles apart to the king, and the Bishops their Articles apart in this Parliament, and protested, that they ought not to answer but in open Parliament by and with their Peers, without joining with the Commons, num. 6, 7, 18, &c, 26, 27, 35, 37. which course they held in most following Parliaments. In the Parliaments of 47 E. 3. numero 15. 50 E. 3. n. 8. 51 E. 3. n. 18. 1 R. 2. n. 14. 2 R. 2. n. 23. 5 R. 2. n. 14. 6 R. 2. n. 14. Parl. 2. n. 8. 7 R. 2. n. 9.19. 4 H. 4. n. 10.11. The Commons Petition the King for certain Lord's to be sent to them as a Commi • tee, to assist and advise them in the matters propounded to them by the King and his Chancellor, wherein their advise was required: as being more able to advise and counsel them than any of their own Members. In the Parliament of 6 R. 2. Par. 2. n. 7. The Commons being demanded their advice touching the war with Flanders, and the Kings going thither in person with an Army; answered: That this consultation did properly belong to the King and Lord's, yet it being their pleasures to charge the Commons to deliver their conceits therein, they thereupon did it with this Protestation, that what they spake was not by way of COUNSEL, but to show their advice. Whereto was answered for the King; That there was but l • ttle difference between Counsel and Advice. In the Parliament of 7 R. 2. n. 16, 17. The Commons being charged to deliver their Opinions touching Peace with France. For answer to Peace, said; That it beseemed them not to intermeddle with their Counsel therein: And therefore referred the whole order thereof to the King and his Counsel of Lord's. Whereupon the Commons being urged to declare, whether they desired Peace or Warr? for one they must choose: Answered: an honorable Peace for the King: but for that in the Articles were contained many terms of the Civil Law, which they understood not; and for that they understood the Articles were; The King should hold Guienne of the French by Homage and Service, they knew not what to say; only they hope, that the King meant not to hold Calais, and other Countries gotten by the sword, of the French. In the Parliament of 17 R. 2. n. 17. The Commons being demanded their opinions concerning Peace with France, declared by their Speaker, That the same passed their capacity; and therefore they referred themselves to the King, Lord's & Council, And the rather, for that the Lord's and Council affirmed, that those woe • ds (Homage, Sovereignty, and Resort) contained in the Indenture of Peace, should be mod • rated, &c. In the P • rliament of 20 R. 2. n. 9. The Commons excuse themselves touching the Ambassadors and Embassy sent to France for peace, referring the same to the Kings own pleasare and the Lord's.
I shall conclude with one President more, most suitable to the present deplorable condition of our State, and worthy imitation.
In the Parliament of 5 Hen. 4. Rot. Parl. num. 9, 10. The Commons having presented to the King in Parliament divers grievances, in the ill-managing of his Revenues, the decay of his Castles, Houses and Parks; the great poverty and pressures of his Subjects, and danger of the Enemies: thereupon
Secondly, The Lord's and great Officers of the Realm, as such; were ever reputed persons of greatest Valour, Courage. Power, (in regard of their great interests, Estates, worth many whole Boroughs, of which divers of them are sole Lord's, their allies, and retainers) and so best able to withstand, redress all public grievances, exactions, encroachments of the King, his Officers, and others upon their own and the people's Liberties, Laws, Great Charters, in defense whereof they have in ancient times been always most ready, active to spend not only their estates, but blood and lives too, wherewith they have redeemed, preserved those Laws, Liberties, Great Charters concerning their Freedoms, we now enjoy and contend for. And in this regard our Ancestors in point of wisdom, policy, reason right, thought meet, that ex congruo et condigno, et debito Justitiae, they should always be summoned to, and bear chief sway in our Parliaments, in respect of their Peerage, Power, Nobility only, without the people's election. This reason of their sitting in Parliament, we find expressly recorded in Bracton, l. 2. c. 16. fol. 34. and in Fleta, l. 1. c. 17. The King (say they) hath a Superior, namely, God; also the Law, b • which he is made a King; likewise his Court, to wit, THE EARLS & BARONS, because they are called Counts, as being the KINGS FELLOWS, and he who hath a Fellow, hath A MASTER. And therefore if the King shall be without a bridle, that is, without a Law; debent ei fr • num imponere, THEY OUGHT TO IMPOSE A BRIDLE ON HIM, &c. which the Commons being persons of less power and interest were unable to do. Andrew Horn in his Mirrour of Justice, ch. 1. §. 2.3. renders the like reason. In all the contests in Parliaments, and Wars between K. John, H • n. 3. Edw. 2. & Rich. 2. concerning Magna Charta, the Charter of the Forest, the Liberties, Properties of the Subjects, and opposition of unjust Taxes, Ayds, Exactions, the Lord's and Barons were the Ring-leaders, the chief Opposers of these Kings Usurpations, Exactions, and Encroachments on the Great Charters, Laws, Rights, Liberties of the people, as all our Histories and Records relate; whence they style the Wars in their times, THE BARONS WARS: and before this, the Nobles were the principal Actors in resisting the Tyranny of K. Sigebert, and K. Bernard, and dethroning them for their misdemeanors, as is clear by Mat. Westminster in his Flores Historiarum, An. 756. & 758. To give some pregnant Instances of this kind not vulgarly known or taken notice of, to clear this truth beyond contradiction. Upon the death of William Rufus, An. 1100. Magnates, the Nobles of England not knowing what was become of Robert Duke of Normandy, who had been 5. years absent in the holy Warrs; thereupon Henry his Brother,
King Stephen being elected and crowned King à PRIMORIBUS REGNI ; against his own and their former Oaths, Omnes tam Praesules, quam Comites et Barones, qui filiae Regis et suis haeredibus juraverant Fidelitatem, consensum Stephano praebentes : In pursuance of his Coronation Oath Anno 1136. EPISCOPOS & PROCERES REGNI SUI regali Edicto in unum convenire praecepit, cum quibus GENERALE CONCILIUM CELEBRAVIT Oxoniis. Wherein he confirmed all their Laws and Liberties by a special Charter: in which there are these Clauses among others. Sanctam Ecclesiam liberam esse concedo,
In the 16. and 17. years of K. John, An. Dom. 1214, 1215. The Prelates, Earls, Nobles, and Barons, being assembled together in a great Parliamentary Council held at Paul's & after at St. Edmunds, there was produced and read before them a Charter of King Henry the 1. which the Barons received from Stephen Archbishop of Canterbury ; which Charter contained certain Laws and Liberties of King Edward, granted to the holy Church and the great men of the Realm, with some other Liberties which the said King had added thereunto of his own grant. Which being read, thereupon the BARONS ALL swore in the Archbishops presenc, that if need were, they would spend their blood in its defense. And afterwards at St. Edmond's Bury, the BARONS swore upon the High Altar, That if King John refused to confirm and restore to them those Liberties and Rights of the kingdom; they would make War upon Him, and withdraw themselves from his allegiance, till he had ratified them all by his Charter under his Great Seal. Which they accordingly performed. The King promising to confirm their Liberties and the Charter of King Henry the 1. which the Barons publicly read in 3. of their Great Parliamentary Councils ) and yet de • aying the same; thereupon all the Nobles and Barons assembled together at Stamford, with their horses, friends and followers, amounting to many thousands, resolving to force the King to grant and ratify the same. Whereupon the King sent the Archbishop of Canterbury, William Marshal Earl of Pembroke, and other prudent men to the Earls and Barons, to demand of them, Quae essent Leges & Libertates quas quaer • bant? Who thereupon produced a schedule of them to the Messengers, quae ex parte maxima Leges antiquas & regni consuetudines continebat▪ Capitula earum partim in Charta Regis Henrici 1. superius scripta sunt; partimque ex Legibus Regis Edwardi antiquis excerpt • . The Barons affirming, quod nisi Rex illas in continenti concederet, et Sigilli munimine confirmaret, ipsi per captionem Castrorum suorum, terrarum & possessionum IPSUM REGEM COMPELLERENT, donec super praemissis satisfaceret competenter. The Archbishop returning to the King, and repeating the Articles and Liberties they demanded to him by heart; when he understood their contents, with great indignation and scorn answered: Et quare cum istis iniquis exactionibus BARONES non postulant regnum? Vana sunt, iniquit, et superstitiosa quae petunt, nec aliquo rationis titulo fulciuntur. Affirmavit tandem cum iuramento fu • ibundus, quod nunquam tales illis concederet Libertates, unde ipse efficeretur servus. When the Archbishop and William Marshal the Earl, could by no means induce the King to consent thereto, they returned by his command to the Barons, relating all that the King had said to them in order. Whereupon tota Angliae Nobilitas in unum collecta, all the Nobles of England collected together into one body , constituted Robert Fitzwalter General of their Militia, calling him, MARESCALLU MEXERCITUS DEI ET ECCLESIAE SANCTAE ; and flying to their arms, besieged several of the Kings Castles. Who thereupon seeing himself generally deserted almost by all men, and fearing the Barons would take his Castles without any resistance; though he bare an inexorable hatred against the Barons in his heart: yet thinking to be revenged of them singly afterwards, when he could not do anything against them all being united, he sent Messengers to assure them; quod pro bono pacis, & ad exaltationem Regni sui et honor • m Gratanter concederet Leges et Libertates quas petebant; desiring them to appoint a fitting time and place for them to meet and confer together, and perform what they desired. Whereupon the King & all the Nobles and Barons meeting together at a Conference in Running Mead, he after many debates granted them the Laws and Liberties they desired, confirming them by his Charters under his Great Seal: the Tenor whereof is at large recorded in Matthew Paris, and in the Red Book of the Exchequer; being almost the same in Terms, with Magna Charta, and Charta Forestae, afterwards granted & confirmed in 9 H. 3. printed in all our Statute Books, and so needless to transcribe. These Charters being sealed and confirmed by the King, he at the Barons request, sent Letters Patents through all the coasts of England, firmly commanding all the Sheriffs of the whole Realm, that they should cause all men of what condition soever within their Bayliwicks, to swear, that they would observe the foresaid Laws and Liberties, and that to the best of their power they would constrain the King himself, by the seising of his Castles, to perform all the things aforesaid, as they were contained in his Charter. In mean time the King sent Letters to Pope Innocent, to vouchsafe to confirm the Liberties and Charters he had granted, with his Bull. After which for their more inviolable observation, it was concluded and enacted; That there should be 25 BARONS chosen by the LORD'S (not Commons) who should, to their utmost power, cause the Great Charter confirmed by K. John, to be duly observed; That if either the King, or His Justicier should transgress the same, or offend in any one Article, 4 of the said Barons should immediately repair to Him, and require redress of the same without delay; which if not done within forty days after, that then the said 4 BARONS and the rest should distrain and seize upon the Kings Castles, Lands and Goods, till amends was made according to their arbitration.
Rot. Patent, Anno 17. Johannes Regis, in the Tower, m. 21, 22. n. 23. Dorso. Writs were sent to all the Sherifs & Counties of England, to swear all the people to those 25 Barons, to aid and assist them in the premises, under pain of seizing their lands into the Kings hands, and confiscation of all their goods to him, if they refused to take the Oath within 15 days. And the City and Tower of London were put into the Barons hands, till the King had performed his agreement with them: Such confidence and power was then reposed in the BARONS alone.
In the Patent Roll of 16 Johannes Regis, pars 1. dors. 3· I find this memorable Grant to the Barons. well explaining the Statute of Magna Charta, c. 29,
The Barons having by their valor, magnanimity, industry, procured these Great Charters of their liberties ; and of the Forest, were as careful, vigilant to preserve them, to punish the Violations of them, and to get them reconfirmed, repromulged, when violated by our Kings, which I shall manifest by some Records & Histories, not commonly known, or taken notice of.
Rot. Pat. 17 Johannes, pars 1. m. 19, 21, 22, 23, 24. Dorso, and Chart. 17. Joh. Dors. 27. There are sundry Patents, Commissions, Writs, for sending the Great Charter, and Charter of the Forest into every County, for enquiring of all evil customs contrary to them, that they might be abolished, & all violations of them, that they might be redressed ; all by the Barons procurement, and by agreement between the King and Barons, whose names are there inserted.
Pat. 1 Hen. 3. m. 13. & 15 The Great Charter, by advice of the Earls and Great men, is sent by King Henry the third into Ireland, the exemplification whereof was sealed with the Po • es Legates Seal, as well as the Kings: and precepts are the • e sent to Sherifs, to read it openly; it being thus styled in these Records. Libertates (& Charta libertatum) Regni nostri Angliae, a patre nostro & a nobis concessae. so Claus. 12 H. • 3. pars 1. m. 17. There is another precept for publishing and observing the Great Charter in Ireland.
Rot. Claus. 2 H. 3. m. 6. & 11. Dorso. The Great Charter, by special writs, is commanded to be duly kept, read, and observed in most Counties, and sent down into Yorkshire for that end, by the Barons advice and procurement.
Pat. An. 3. H. 3. pars 2. m. 3. There is mention of Charta nostra de Libertatibus Forestae concessis probis nostris hominibus de Anglia. By the Barons means, and order for its observation.
Anno Dom. 1223. The 7th. of Henry the 3 his reign, This King in the Octaves of Epiphany,
In the 8 year of King Henry rhe 3. the King by reason of the insurrection of the Earl of Chester, and others, and the French Kings taking of Rochelle from him,
In the 9 year of King Henry the 3. the King holding a Parliamentary Council at Westminster, demanded advice, and also a fiftenth part of all the moveables of the Clergy and Laity through England, for the recovery of the ancient dignity, rights and possessions of the Crown, then lost, and seised on by the French King. Whereupon,
Rot. Clause, An. 18 H. 3. m. 10. The King in a Writ to the Sherif of Lincoln recites, that his Bailifs knew not how to levy their Hundred Courts in his County,
Rot. Claus. 20. H. 3. m. 11.15, 16. There are sundry Writs for reading and observing the great Charter in Westmorland, and other Counties, upon the Barons mo • ions, who were careful of its inviolable observation.
In the year 1231. on the 7 of Feb.
Anno 1237. the 21 of Henry the 3. the King immediately after the Feast of the Nativity, Misit per omnes fines Angliae scripta Regalia, praecipiens omnibus ad Regnum Angliae spectantibus, viz. Archiepiscopis, Espiscopis, Abbatibus et Prioribus installatis, Comitibus & Baronibus, (without any Knights, Citizens or Burgesses, not here mentioned) ut OMNES sine omissione in octavis Epiphaniae Londoniis convenirent, Regia negotia tractaturi totum Regnum contingentia. Quod audientes Magnates, regiis praeceptis continuo paruerunt, credentes se vel Imperialia vel alia ardua negotia provisuros. Venit igitur die Sancti Hilary Londonias INFINITA NOBILIUM MULTITUDO, scilicet, Regni totalis Universitas. When they were all assembled and sat in the Kings palace at Westminster, William Kaele, in the Kings name and behalf, demanded an aid of money of them to supply his wants, to be put into the hands of such Treasurers as they should appoint, to be disbursed only upon the necessary affairs of the Realm: which Speech they hearing, expecting no such thing, were much offended, and murmuring at it, Indignantes responderunt, (and have we not much more cause to do and say so now?) se undique & saepe, nunc vicesima, nunc tricesima, nunc quinquagesima gravari promittendo et persolvendo: Asserentes, indignum nimis fore & injuriosum, permittere Regem &c. ut à naturalibus hominibus suis, quasi à servis ultimae conditionis, in detrimentum eorum, et alienorum juvamen, tantam pecuniam, tot toties, extorqueret argumentis. Quod saepius gravati, videbant alienigenos suis bonis saginati statumque regni prae paupertate vacillare, et multiplex periculum imminere. Comes vero Cornubiae Richardus, frater Regis, primus movit quaestionum adversus Regem, increpans eum acritor super tanta Regni per eum nata desolatione: Et quod de die in diem adiuventis novis causis cavillatoriis, Nobiles ac naturales Barones suos, suis bonis spoliavit et quaecunque poterit obradere, inconsulte hostibus Regni distribuit, ipsi Regi & regno insidiantibus. Quod ipse infinitos proventus et innumerabilem pecuniam in suo tempore colligerat, nec erat in Anglia Archiepiscopatus vel Episcopatus praeter Eboracensem, Bathoniensem et Wintoniensem, qui non vacaverit suo tempore. Similiter intulit de Abbatibus et Comitatibus et Baroniis Custodiis & aliis esca • tis: nec tamen thesaurus regius, qui deberet esse Regni robur et confidentia senserat incrementum. Quod cum Rex audisset, cupiens murmur hoc sedare generale, pollicebatur sub jurejurando, se nunquam amplius Nobiles regni injurando lacessere, vel molestare, dummodo sibi ad praesens tricesima pars mobilium Angliae benign concessa, solveretur, &c. Rex vero suorum cupiens Baronum sibi gratiam conciliare, se ex tunc et deinceps, quicquid factum fuerat antea, dedit se consiliis fidelium ac naturalium hominum suorum. Praeterea, de hoc quod dicebatur, quod conabatur ea quae concesserat et Chartis confirmaverat, per autenticum summi Pontificis infirmare: dicebat Rex, hoc falsum esse, Et si tale quod forte fuerat suggestum, in irritum affirmavit, seque talia penitus revocare. Praeterea, sereno vultu, & spontanea promisit voluntate, libertates Magnae Chartae suis fidelibus Regni sui ex tunc inviolabiliter observare. Et quia videbatur non penitus immunis à sententia quam tulerat Arehiepiscopus Stephanus, cum omnibus Episcopis Angliae in omnes violatores praedictae CHARTAE, quàm malo consilio fretus, in parte laeserat; fecit in publico innovare sententiam praetaxatam, in omnes ejusdem Chartae contradictores: Sic, ut si ill, per aliquem conceptum rancorem forte eam non observaret, in latam sententiam gravius recidivaret. Unde factum est, ut omnium corda haec audientium sibi mirabiliter in verbo illo conciliavit. Whereupon, post multas desceptationes, quia se Rex humilians promisit indubitanter, se eorum ex tunc et deinceps standum consiliis, they granted him a 30th part of their movables upon certain limitations and conditions, to be put into such persons hands, and disbursed only as they there prescribed; which yet were not observed.
In the 24. year of Henry the 3d. in the Octaves of Epiphany, the Archbishops and Bishops, cum multis aliis Magnatibus, assembled at London, the Popes Legat being also present,
Anno 1242. the 26 of King Henry the 3d.
I have transcribed these memorable passages of this Parliament out of Matthew Paris thus largely in his own words, for sundry reasons pertinent to my Theam.
1. To prove, that the Archbishops, Bishops, Abbots, Peers, Earls, Barons Lord's, were the only Members of this, all the former, and most other succeeding Parliaments in Henry the 3 his reign, this Historian, (who is most exact) making mention of them only, both in the summons to their debates in Parliament, and this their Remonstrance in Parliament, even in this case of ayds demanded, and not of any Knights, Citizens, or Burgesses elected by the people, of which there is not one syllable.
2. To manifest, that the Earls, Lord's, and Barons of the Realm, have most unanimously, resolutely, magnanimously opposed our Kings in Parliaments in their unjust designs, and in Ayds, Taxes demanded, and earnestly begged, importuned from them without any effect, resisting our Kings therein to their faces, and withstanding all their wiles, policies, King-crafts, and private solicitations persuasions to enervate their resolutions, and lay unnecessary burdens on the people, which some other subsequent Presidents will further ratify.
3. That they were the Granters of all public Ayds to the King, which they granted very rarely, and that upon extraordinary pressing occasions, especially in case of foreign wars, though to recover the ancient Rights and Dominions of the Crown, and that in very small moderate proportions, with special provisoes, how they should be employed, and that they should not be hereafter drawn into consequence, which other Presidents will further evidence.
4. That they were very vigilant, active, zealous in complaning against, examining all violations of the Great Charters of their liberties by the King and his Officers: and reconfirming them by new promulgations, Oaths proclamations, excommunications, refusing to grant any Ayds till this were effectually done, or promised by our Kings: which the subsequent examples will further clear.
5. That no wars ought to be made nor truces violated but by their Council and advice: and that they deemed Truces sworn even to foreign Enemies most sacred, indissoluble, inviolable, and the violation of them most dishonest, impudent, perilous to souls, and hurtful to the reputation even of Kings themselves: much more then must Oaths, Leagues, and solemn sworn Covenants of Subjects to their natural Kings, and Kings to their Subjects be inviolable, indissoluble, and the violation of them most dishonest, shameful, perfidious, perilous, hurtful to men's Souls and reputations; and that no faith or trust is to be given to perfidious Traitors, Nobles, against their natural King.
Anno Dom. 1238. King Henry being wholly counseled by Foreigners, marrying the Nobles of the Realm to them, neglecting his natural subjects, & misgoverning the Realm; thereupon Earl Richard his Brother, and the rest of the Nobles publicly reprehended and opposed him. Which Mat. Paris thus relates.
Comes Richardus cum hoc audisset matrimonium clandestinum, eo scilicet nesciente, vel assensu Magnatum terrae non interveniente, firmatum fuisse, nimia ira succensus merito, praesertim cum Rex saepius perjurasset, si se nil arduum facturum, nisi de consilio naturalium hominum suorum, & praecipueipsius. Insurgens igitur Regem aggreditur verbis commonitoriis, et comminatoriis, gravem movens adversus Regem quaestionem et calumniam, eo quod utens consiliis alienigenarum quos amovere penitus perjuraverat, etiam ardua negotiae regni perperam tractaverat, et Simonem de Monte forti, et I. Comitem Lincolniensem aliis a latere suo amotis, non tantum audierat, sed contra nobilium conniventiam matrimonia subdola procuraverant. Simon, ut praedictum est, illicite inter eum et Comitissam Pembreciae sororem suam, et Johannes Comes Lincolniensis inter filium Comitis Boloniae, scilicet Richardum de Clare, et filiam ejusdem Comttis I. Rege subducto procuraverant. Insurgenti autem illi Comiti Richardo, adduntur Comes Gilbertus Marescallus, et omnes Comites et Barones Angliae, cum civibus et populo generaliter. Et sperabatur certissime tunc quod ipse Comes Richardus esset et liberaturus terram, tam à Romanorum quam aliorum alienigenarum misera qua premebatur, servitute, et omnes a puero usque ad hominem senem crebras in ipsum benedictiones congesserunt, nec adhesit aliquis Regi, nisi solus Comes Canciae H. de quo non timebatur, quod ideo quid sinistri possit evenire, tum quia se juraverat nunquam arma gestaturum, tum propter discretionem suam, multis experimentis examinatam. Quod comperiens Rex animo et vultu nimis consternatus, Nobilium terrae singulos per nuncios suos interogavit diligenter, sciscitando, si in hunc vel illum in hac jam exorta tempestate possit de adjutorio confidere? Cui responderunt universi, praecipue Cives Londinenses, asserendo universaliter quod honor suo, et commodo Regni procuratum est circumspecte, quod incipiebatur ab ipso Comite R. licet ipse Rex salubri consilio ejus non acquiesceret, unde incoepta nullo modo impedirent. Haec comperiens Legatus, summam adhibuit, imminere videns pericula diligentiam, ut Regem suis naturalibus hominibus reconciliaret, secreto admonens Comitem R. & replicans, quod ipse qui capitaneus hujus impetus factus est. Deinceps ab incoepto desisteret, promittens regem ei ampliores possessiones collaturam, et Dominum Papam collatas confirmaturum; addens quod si omnes terrae in regem insurgerent, ipse, qui frater ejus cum eo contra omnes stare haberet indefessus. Ad quod respondit Comes R. Domine Legatae, de terris laicorum et earum confirmationibus nil ad vos derebus autem Ecclesiasticis curam geratis. Nec miremini, si status Regni moveat me, cum sim haeres solus apparens. Rex enim cum fere omnium Episcopatuum terrae, et multarum escaetarum custodias habuit, nullum tamen thesaurus ejus sentit ad Regni tuitiones incrementum, cum tamen undique variis vallemur i • imicis. Praeterea admirantur nonnulli, quod Rex qui maxim auxilio et discretione indiget, discretorum vestigia non sectatur. Non Imperatoris, cui sororem nostram, cum magna pecunia dedimus, sperantes id nobis profuturum, qui sola sua conjuge retenta, duces illius nobis remisit, nulli corum terras vel thesaurum conferens, cum tamen abundaret locuples & opulentus. De Rege autem Francorum simile potest exemplum recitari, cui soror Reginae nostrae matrimonio primogenita copulatur. Rex autem noster Angliae e converso omnes uxoris suae affines, et consanguineos, terris, possessionibus et thesauris saginavit, et sic se maritavit, ut ne thesauro plus ditaretur, imo potius pr •• aretur, ne militari auxilio, si opus emerge et, roboraretur. Praeterea, redditus et beneficia Ecclesiastica, a piis prdecessoribus nostris nostris collata, precipue quae contulerunt antecessores nostri viris religiosis; permittit, quasi spolia di • ipi, et alienigenis, cum abundet ipsa terra viris idoneis distribui, et fit Anglia quasi Vinia sine maceria, quam vindemiant omnes qui praetergrediuntur viam.
Cum autem audisset Legatus hos sermons, Regem adiit, una cum Episcopo Wintoniensi P. monens et muniens, ut se ex tunc voluntati suorum, juste in eum insurgentium subderet, et obtemperaret, nunc minis, nunc monitis, nunc precibus eundem reformantes. Rex videns impetus suos favoribus caruisse, et omnes fatri suo Comiti R. in • linantes, quaesivit quae potuit diverticula, inducias deliberandi postulando, ut competentius responderet. Indueiae igitur ad instantiam petentium concessae sunt Regi, licet cum difficultate, usque in crastinum Dominicae primae quadragessimae.
Convenerunt igitur Magnates die statuto Londini, super his diligenter tractaturi. Et venerunt multi aequis et armis communiti, ut si Rex circumventus per levitatem recalcitraret ad praemissa complenda cogeretur. Ibi igitur post multas multorum deceptationes, se subjecit Rex quorundam provisioni de gravioribus viris, jurans se eorum provisionis adquiescere. Quod et factum est, et in scripta redactum, et appensa sunt tam Legati quam aliorum Magnatum Sigilla, omnibus in communi manifestanda.
So in the Parliament held by King Henry, Anno 1242, and 1248. The Archbishops, Bishops, Priors, Earls, Barons and Gentlemen assembled to it, in like manner boldly and jointly reprehended the King for favoring Aliens, wasting his money upon them, following their advice, and oppressing, neglecting, impoverishing, exhausting, his Natural Subjects, as you may read at large in Mat. Paris, p. 560, 561, 562, 719. overlarge to transcribe. The same year the king rashly commanded that Will. de Ros, (who deserted him in his wars in France, out of mere want of monies, offering to pawn his lands to the King, if he would supply his necessities, which he refused to do)
King Henry the 3. Anno 1244. the 28 year of his reign, summoned a Parliament of the Nobles at London, thus recorded by Matthew Paris. Convenerunt Regia submonitione convocati Londinum MAGNATES TOTIUS REGNI, Archiepiscopi, Episcopy, Abbates, Priores, Comites & Barones: in quo Concilio petiit Rex ore proprio, in praesentia Magnatum in refectorio Westmonasteriensi auxilium sibi fieri pecuniare, sub silentio praeteriens propositum suum de Rege Scotiae potentur impugnando. In propatulo tamen manifestans, quod anno transacto transfretaverat in Gasconiam de consilio eorum, ut dicebat, ubi tenebatur aeris alieni non modica quantitate, nec potuit nisi efficacissime sibi ab illis generaliter subveniretur, liberari. Cui fuit responsum, quod super hoc tractarent Recedentesque Magnates de refectorio, • onvenerunt Archiepiscopi & Episcopy, Abbate, & Priores seorsum per se, super hoc diligenter tractaturi. Tandem requisiti fuerunt ex parte eorum Comites & Barones, si velient suis consiliis unanimiter consentire in responsione & provisione super his facienda. Qui responderunt, quod sine communi universitate nihil facerent. Tunc de communi assensu electi fuerunt ex parte Cleri, electus Cantuariensis, Wintoniensis, Lincolniensis, & Wigorniensis Episcopy, ex parte Laicorum, Richardus Comes, frater Domini Regis Comes Bigod, Comes Legriae Simon de Montefor • i, & Comes Mareschallus W. ex partibus Baronum, Richardus de Muntsichet, & Johannes de Bailliol, & de sancto Edmundo, et de Ramesia Abbates, ut quod isti duodecim providerent in commune recitaretur, nec aliqua forma Domino Regi ostendaretur authoritate duodecim, nisi omnium communis assensus interveneret, Et quia Charta libertatum, quas Dominus Rex olim concesserat, & pro cujus conservatione Archiepiscopus Cantuariensis Edmundus juraverat, fide jusserat & certissime pro Rege promiserat, nondum extitit observata, & auxilia quae toties concessa fuerunt Domino Regi ad nullum profectum Regis vel regni devenerant. Et per defectum Cancellarii Brevia contra justitiam pluries fuerunt concessa, petitum fuit, & secundum quod eligerent, Justiciarius & Cancellarius fierent, per quod statum Regni solidaretur, ut solebat. Et ne per compulsionem Concilii aliquod novum statuere videretur, noluit (Rex) petitioni Magnatum consentire; sed promisit, se • mendaturum quae ex eorum parte audierat, unde datus fuit terminus eis usque in tres septimanas Purificationis beatae Virginis, ut ibidem iterum tunc eonvenireot. Quod si mera voluntate Rex interim tales Consiliarios eligeret, & taliter jura regni tractaret, quod Magnates contenti essent ad terminum illum super auxilio faciendo, responsuri providerent, ita tamen quod si aliqua pecunia eidem concederetur, per dictos duodecim expenderetur ad commodum Regni. Et cum per plures dies protraheret eos Dominus Rex, volens eos quasi tedio affectos flectere ad consensum, ut sine termini prorogatione ad auxilium contribuendum consentirent, multipliciter convenit eos nec circumvenit, quia Magnates hoc prudenter perpendentes IMMOBILITER IN PROPOSITO PERSTITERUNT. Tunc Dominus Rex demum sperans sal • m Clerum ad desiderium suum inclinare, convocatis Praelatis, porrexit illis Papales apices in publico, (recorded at large by Matthew Paris ) commanding and persuading the Prelates, Abbots and Clergy to supply the Kings necessities, and grant him an aid, with particular Letters to all the Prelates from the Pope to the like effect. The Prelates notwithstanding all the Kings private solicitations and policies, refused to return any answer to the Popes Letters, till the time of the Lord's reassembling or to do anything but by Common Counsel and consent of the whole Parliament, from which they would not be divided, as you may there read at large. The Nobles and Great men meeting again at the time prefixed agree on these ensuing Provisoes, after long debate, which they tendered to the King for his assent, denying to grant him any aid of money, unless he consented to them.
De libertatibus alia vice emptis, concessis, & per chartam Domini Regis confirmatis, quod de caetero observentur. Ad cujus rei majorem securitatem, fiat nova charta quae super haec specialem faciet mentionem. Et ab omnibus Praelatis solenniter excommunicentur, qui scienter & prudenter libertates a Domino Rege concessas, vel impugnare vel impedire, quo minus observentur, praesumpserint, & reformetur status eorum, qui post ultimam concessionem in libertatibus suis laesionem incurrerunt. Et quia propter virtutem sacramenti praestiti, nec non propter timorem sententiae latae a sancto viro Edmundo, quod ea vice promissum fuerat, hactenus non exstitit observatum, ne hujusmodi periculum de caetero eveniat, & sic fiant novissima pejora prioribus de communi assensu quatuor eligantur Potentes et Nobiles de Discretioribus totius regni, qui sint de Concilio Domini Regis, et jurati, quod negotia Domini Regis et Regni fidelitur tractabunt, et sine acceptione personarum, omnibus Justitiam exhibebunt. Hi sequentur Dominum Regem, & si non omnes, semper duo eorum ad minus praesentes sint, ut audiant querimonias singulorum, ut patientibus injuriam celeriter possint subvenire. Per visum & testimonium eorum tractetur Thesaurus Domini Regis, & pecunia ab Universis specialiter concessa, et ad commodum Regis et Regni expendatur, secundum quod melius et utilius viderint expedire, Et erunt Libertatum Conservatores. Et sicut de omnium assensu eliguntur; sic etiam sine communi assensu non poterit aliquis eorum amoveri, aut suo officio privari. Uno etiam sublato e medi • , de assensu et electione trium, loco illius alius substituatur infra duos menses. Nec sine ipsis, sed cum necesse fuerit, et ad eorum instantiam, iterum conveniant Universi. Brevia contra Regem & consuceudinem Regni impetrata, penitus revocentur et aboleantur. Memorandum quoque de sententia ferenda in contradictores. Item, de obligatione Sacramenti in invicem. Item, de Itinere Justiciariorum, Justitiarius & Cancellarius ab omnibus elegantur. Et quia frequenter debent esse cum Domino rege, poterint esse de numero conservatorum. Et si aliqua interveniente occasion Dominus Rex abstulerit sigillum suum à Cancellario, quicquid fuerit interim sigillatum, irritum habeatur et inane. Deinde Cancellario fiat restitutio. Nullus substituatur Cancellarius, vel Justitiarius, nisi solummodo per solennem et universalem omnem Convocationem, et liberum assensum. Duo Justiciarii eligantur in Banco. Duo itidem Barones in Scaccario constituantur. Unus quoque ad minus Justiciarius Judaeorum deputatur. Hac vice autem per communem universalem liberamque omnium electionem fiant et constituantur omnes Officiarii praedicti: ut quemadmodum omnium negotia sunt tractaturi, sic etiam in eorum electione concurrat assensus singulorum. Et postmodum cum necesse fuerit alius loco alicujus ipsorum praedictorum substitui aut subrogari, per provisionem et auctoritatem quatuor illorum Consiliatorum praedictorum fiat illa substitutio vel subrogatio. Hactenus suspecti, aut minus necessarii à latere Domini Regis amoveantur. Et dum hujusmodi negotia utilia nimis Reipublicae in spacio trium hebdomadarum diligenter pertractassent Magnates, hostis humani generis, pacis perturbator, et Schismatum suscitator Diabolus, haec omnia per Papalem avaritiam impedivit, &c. Postea renovata fuit petitio Domini Regis, super auxilio pecuniari sibi faciendo. Circa quod de die in diem convenit eos Dominus Rex, tum in propria persona, tum per internuncios solennes; per quos promisit, se Libertates quas juraverat in Coronatione sua, super quibus CHARTAM confecerat integerrime servaturum. Ad quorum etiam tuitionem, rogavit ut singuli Episcopy in Diocaesibus suis sententiam fer • ent in ipsum, et omnes qui contra memoratas Libertates venirent in aliquo articulo. Tandem unanimiter, cum nullo modo ad alium formam possent flecti, concesserunt Domino Regi ad maritandam filiam suam primogenitam, de omnibus qui tenent de Domino Rege in capite, de singulis scutis viginti solidos solvendos, scilicet, medietatem ad Pascha, et aliam ad festum S. Michaelis.
Et cum relatum esset Domino Regi, ut ad memoriam haec quam praeterita reduceret, recordatum est ei, quod similia à suis fidelibus, quos fovere debuit, non depauperare truculenter et sine solutione promissorum, eisdem extorserat. Post captionem Bedefordiae statim concessum est Carucagium, de tota Anglia, scilicet, de qualibet caruca duo solidi Anno sequenti, Quintadecima omnium mobilium. Iterum, iturus in Britanniam cepit non modicam pecuniam à Praelatis etiam & viris Religiosis, Burgensibus & Judaeis. Post reditum suum de Britannia, cepit Scutagium, scilicet de Scuto tres marcas. Item postea concessa fuit Quadragesima pars omnium mobilium. Item postea Trigesima pars omnium mobilium. Item quando maritavit sororem suam Isabellam domino Imperatori Frederico, cepit dominus Rex ad maritagium suum Carucagium, videlicet, de qualibet Caruca duas marcas. In nativitate autem filii sui, in magnum dedecus sui, multa munera quae ad magnam summam pecuniae ascenderunt, violenter & impudenter extorsit. Item iturus in Gasconiam, cepit à Praelatis, viris Religiosis, Burgensibus & Judaeis, et à quibuscunque potuit aliquid abradere, pecuniam multam, imo pene infinitam. Rediens autem à Gasconia inglorius & seductus, jussit ut Magnates et Praelati ipsi occur • erente etiam us{que} ad mare; qui ibidem illum diu expectantes frustra, tandem ipsum in muneribus multis et impreciabilibus exceperunt. Similiter et cives Londinenses & alii. Et qui munera nobilia compertus est non contulisse, aliquo argumento redargutus, damnificabatur. Qualiter autem pro hac praesenti contributione et omnibus aliis promissa et pacta adimplebat Rex, noverit ill qui nihil ignorat. Thus bold, resolute, plain dealing were the Earls and Barons with the King in this Parliament; all whose Ayds and Exactions here enumerated in 28. years space, are not comparable to one years Excises, Imposts, Contributions, under the pretended new Conservators, Protectors of our Liberties, and deliverers of us from our former Petty Taxes of Ship-money and Knighthood, scarce amounting to one Moneths contribution.
The same year (1244.) in Crastino Omnium animarum, convenientes Magnates Angliae, Rex cum instantissime ne dicam impudentissime, auxilium pecuniare ab eis, iterum postularet, toties lasi et illusi, CONTRADIXERUNT EI UNANIMITER ET UNO ORE IN FACIE. Proponebat enim Dominus Rex contra Wallenses exercitum ducere represuros, &c.
King Henry, Anno 1252. the 35. year of his reign, assembled all the Prelates to London, and demanded of them a Tenth for 8. years granted him by the Pope; which they refused to grant, taxing him for oppressing his Realm and rhe Church with various and innumerable exactions, and depriving them of their ancient and accustomed Liberties and their money against his Oath, and primitive Protestation: The Lord's and Prelates, after sundry public and private Discourses and devices then used to draw them to a Contribution (recorded at large in Mat. Paris ) chiding and telling him to his face;
Anno 1253. the 37 of Henry the 3d. In quindena Paschae
Anno 1254. the 38 of King Henry the 3.
Anno 1255. the 39 of Henry the 3. In quindena Paschae convenerunt Londini OMNES NOBILES ANGLIAE, tam viri Ecclesiastici, quam seculares, ita quod nunquam tam populosa multitudo ibi antea visa fuerat congregata. Ubi Dominus Rex se multis debitis conquestus est fuisse implicatum, nec se posse sine MAGNATUM SUORUM efficaci juvamine liberari, unde instanter & urgenter valde postulavit auxilium sibi fieri pecuniare. Scilicet ut de Baroniis quas prius in auxilio decimae sibi concessae, plenam reciperet portionem, ut ad plenitudinem gratiaram persolvendarum teneretur. Quod esset manifestum Regni exterminium. Regnum enim omne pecunia destitutum, volentibus illud occupari, quasi ulero foret expositum et oblatum. Inito igitur consilio, quia illud nullo modo fuisset tollerabile, inter eos concessum est, QUOD MULTUM SESE GRAVARENT PRO MAGNAE CHARTAE SINE OMNI CAVILLATIONE OBSERVATIONE EX TUNC ET DEINCEPS, quam toties tenere promisit, juravit, & sub summa distr • ctione se in anima obligavi. Exigebat insuper, ut de communi consilio regni nostri sibi sustitiarium, Cancellarium, & Thesaurarium eligerent, sicut ab antiquo consuetum et justum. Qui etiam non amoverentur, nisi clarescentibus culpis, et de communi Regni convocati consilio et deliberatione. Tot enim erant in Anglia Reguli, ut viderentur in Anglia antiqua tempora renovari. Erat videre dolorem in populo, quia nesciebant Praelati vel Magnates quo modo suum Prothea, scilicet Regem tenerent, etiamsi omnia haec concederent, quia in omnibus metas transgreditur veritatis, et ubi nulla veritas, nulla praevalet certitudo fixa stabiliri. D • ctumque est illis a secretissimis Regiis cubiculariis, quod nullo modo illa quae desiderabant, scilicet de Justiciario, Cancellario, vel Thesaurario concederet. Praelati insuper pro decima, quam conditionaliter promiserant, absolute et serviliter ancillante Ecclesia jam solvere eam cogebantur, doloribus cruentabantur. Nobiles pro imminenti exactione, in oneribus sauciabantur. Tandem in hoc convenerunt communiter, ut Regi renunciaretur, ex parte universitatis, quod negotium dilationem caperet, usque ad festum Sancti Michaelis, ut et ipsi interim fidelitatem ejus, & benignitatem experirentur, si forte sic se versus eos et eorum patientiam fidelitatem ejus et benignitatem experirentur, si forte sic se versus eos et eorum patientiam IN CHARTAE OBSERVATIONE TOTIES PROMISSAE, TOTIES REDEMPTAE, corda eorum ad ipsa converteret, et merito reclinaret. Quod cum Rex dicitur non acceptasse, sed tacendo non concessisse, Et cum summa desolatione et desperatione, post multas inutiles▪ et diuturnas deceptationes, sic soluto consilio, Nobiles Angliae facti jam ignobiles, ad propria remearunt.
Not long after the King to ingratiate himself with the people, commanded the Great Charter to be observed. Acclamatum est in Comitatibus, et annunciatum est in Synodis in Ecclesiis, et ubicunque locorum homines convenerant, ut Magna Charta inviolabiliter teneretur, quam Rex Johannes concessit, et isto Rex praesens multo ies concessit, et lata est sententia solenniter in omnes ejusdem viol • tores, quam tamen Rex minime adhuc observans, bona Ecclesiae Eboracensis inhumane destruxit. Dicebatque creb • o: Quare non observant Episcopy & Magnates Regni erga subjectos suos Chartam illam, pro qua tan • um clamitant, et objurgant (a good interrogation to our late and present swaying Grandees) Cui rationabiliter responsum est, Dominus Rex, decet vos primitus secundum jusjurandum tuum inchoare, et alii prosecto sequerentur, secundum illud Poeticum,
In the 40 year of King Henry the 3. (1256.) the great Charter, to satisfy the Prelates and Nobles, was again confirmed by the King, and a solemn Excommunication denounced against the infringers thereof. Provisum est salubriter, UT MAGNAE CHARTAE REGIS JOHANNIS quas sponte promisit BARONAGIO ANGLIAE, et iste Rex praesens iterum, & nunc iterum de novo in magna aula Westmonasteriensi, SPONTE ET LIBERALITER CONCESSIT, SUB PAENA HORRIBILIS ANATHEMATIS, CONSERVENTUR, et propter Regis tyrannidem, quam non desinit exercere in Ecclesiis vacantibus, quam memoratus Rex Johannes concessit Regno, conspectibus Papae praesentaretur : there recited at large and ratified by the Pope; Yet notwithstanding the Prelates, animated by the Barons refused to contribute any aid to the King out of their Baronies, notwithstanding Rustan, the Popes Legat endeavored to induce and force them to do it, both by wiles and menaces.
Anno 1258. the 42. of Henry the 3d. his reign; he summoning a Parliament, and demanding a pecuniary aid of the Nobles, cùm constanter et precise respondissent UNO ORE MAGNATES REGNI IN PARLIAMENTO REGI, cum urgenter auxilium ab eis postulasset pecuniare, QUOD NEC VOLUERUNT, NEC POTUERUNT, (Mark it) AMPLIUS SUSTINERE TALES EXTORSIONES. Rex iratus, ad alia se convertit astutiae argumenta, ut ab Ecclesia pecuniam abraderet infinitam: there recorded at large. Duravit adhuc praelibati Parliamenti altercatio, inter Regem & regni Magnates, usque diem Dominicam proximam post Ascentionem, & multiplicabantur contra Regem variae diatim querimoniae, eo quod promissa sua non observabat, contemnens claves Ecclesiae, ET CHARTAE SUAE MAGNAE TOTIES REDEMPTAE TENOREM. Fratres quo{que} suos uterinos intollerabiliter contra jus regni et legem, ut naturales terrae erexit, nec sinebat aliquod br • ve exire de Cancellaria contra eos &c. REDARGU • US EST INSUPER REX, quod omnes alienos promovet et locupletat, et suos in subversionem totius Regni, despicet et depraedatur. Et ipse tam egenus est cum alii abundent, quod thesauri expers jura Regni nequit revocare; imo nec Wallensium, quae sunt hominum quisquiliae, injurias propulsare; et ut brevibus concludatur; Excessus Regis tractatus exigit speciales. Rex autem ad se reversus, cum veritatem redargutionis intellexisset, licet sero, humiliavit se, asserens iniquo consilio saepius suisse fascinatum; promisitque sub magni juramenti obtestatione super altare et feretrum S. Edwardi, quod pristinos errores plane et plene corrigens, suis naturalibus benign obsecundaret. Sed crebras transgressiones praecedentes se penitus incredibilem reddiderunt; & quia nesciebant adhuc Magnates quomodo suum Prothea, tenere voluissent, quia arduum erat nego • ium et difficile, dilatum est Parliamentum us{que} ad festum Sancti Barnabae apud Oxoniam diligenter celebrandum. Interim Optimates Angliae, utpote Gloverniae, Legrecestriae et Herefordiae comites, Comes Marescallus, et alii praeclari viri, sibi praecaventes & providentes, confaederati sunt, quia pedicas et laqueos alienorum vehementer formidabant, et Regis retiacula suspecta nimis habuerant, veniebant cum equitibus et armatis, et comitatu copioso communit • .
Rot. Pat. An. 43 H. 3. m. 10. n. 41. & n. 15. there is a large Letters Patents of the King recorded in French, declaring the good Government that should be for the future; the due observation of Magna Charta; the Kings faithful promise inviolably to keep the same according to his Oath and promises; and that every man injured might freely sue and complain against or arrest the King, or any other. And Rot. Pat. An. 44 H. 3, m. 4. Schedula; & m. 5.9. There are Writs and Letters of the King to the Sherifs of every County, to the same or like effect. All by the advice or procurement of the Nobles.
Anno 1263. the 47. of King Henryes reign, the King and Nobles, to procure peace and reconciliation between them, submitted themselves to the arbitrement of Louis King of France, touching the Provisions made at Oxford, about which they had great contests and differences: who solemnly pronounced Sentence for the King against the Barons of England ;
Rot. Pat. 46 H. 3. m. 18. Pat. 49 H. 3. m. 10.15, 18. Claus. 49 H. 3. m. 4.5. & Claus. 50 H. 3. m. 1. dorso. There are several Patents, Commissions, Proclamations procured by the Lord's from the King, for the reading, proclaiming, and inviolable keeping of the Great Charter and Franchises of the Realm, and reformation of Grievances contrary thereunto, overtedious to transcribe: and the Agreements between rhe King and Barons touching the same.
King Edward the 1. in the 25. year of his reign, by his own regal Authority, without grant in Parliament, raised the Custom of Woolls to 40 s. upon every sack, which he levied, whereas before they paid only half a mark a sack: And likewise summoned some Nobles, and all those who held of him by Knights service, with all others who had lands to the value of 20 l. or upwards a year, to be ready with rheir horses and arms at London on the feast of S Peters ad Vincula, & to pass over with him into Flanders, to serve there in the Wars at the Kings wages. Hereupon the Earls Marshal and of Hereford, with other Nobles, refused to go in • o Flanders ; and drew up this Notable Petition, or rather Remonstrance to the King, against this unjust Imposition, foreign service, and other Grievances against the Great Charter and their Liberties, which they sent to Winchelsey by Messengers, ex parte Comitum sui regni, as Walsingham relates.
The King having received those Petitions, answered, that he could not as yet answer them without his Counsel, part of them being in Flanders, and the rest left at London : And he entreated the said Earls by the Messengers who brought the Petitions, that if they would not pass over with him, yet at least that they would not hurt his Realm during his absence, for he hoped by God's assistance to return again, and settle his Kingdom in order. The King passing into Flanders, the said Earls, Batons in person inhibited the Treasurer and Barons of the Exchequer, that they should not levy the 8th. penny of the people, being granted to the K. at St. Edmunds, without their consent and induced the City of Lond. to stand with them, for the recovery of their liberties. Whereupon Prince Edwards counsel persuaded him to send for the Earls of Hereford, and Marshal, and by any means possible to allure them to peace, who repairing to him upon summons, were willing to consent to the Articles and form of peace ensuing, but to no other. Primo, Quod Dominus Rex Chartam magnam cum eaeteris articulis addictis, et Chartam de Foresta annuat et confirmet: et Quod nullum auxilium vel vexationem exigat a Clero vel Populo absque consilio et assensu: et quod omnem offensam Comitibus et eorum confaederatis dimittat. Articuli adiecti ad magnam Chartam sunt isti. Nullum Tallagium vel auxilium per nos vel haeredes nostros, de caetero in regno nostro imponatur seu levetur sine voluntate et assensu communi Archiepiscoporum, Episcoporum, Abbatum et aliorum Praelatorum, Comitum, Baronum, Militum, Burgensium, et aliorum liberorum hominum. Nullus minister noster, vel haeredum nostrorum in toto regno nostro cap • at blada, lanas, Coria, aut aliqua aliae bona cujuscunque, sine voluntate et assensu cujus fuerunt. Nihil capiatur de caetero nomine vectigalis de Saccolanae. Volumus etiam et concedimus pro nobis et haered bus nostris, quod omnes Clerici et Laici de Regno nostro habeant omnes Leges, Libertates, et omnes consuetudines, ita libere et integre, sicut aliquo tempore consueverunt melius pleniusque habere. Et si contra illas vel quemcunque Articulum in praesanti Charta contentum statuta fuerint aedita per nos vel Antecessores nostros, vel consuetudines introductae: Volumus et concedimus, quod hujusmodi Statuta vacua sint, et nullum in perpetuum. Remissimus etiam Humfredo dae Boun Comiti Herefordiae & Essexiae, Constabulario Angliae, Rogero Bigot Comiti Norfolciae, Mareschallo Angliae, Et aliis Comitibus, Baronibus, Militibus, Armigeris, Johanni de Ferrariis, ac omnibus aliis de eorum societate confaederatione et concordia existertibus, nec non omnibus vigenti libratas terrae tenentibus in regno nostro, sive de nobis siv • de alio quocunque in capite, qui ad transfretandum nobiscum in Flandriam certo die notato vocati fuerunt, et non venerunt, rancorem nostram & malam voluntatem quam ex causis praedictis erga eos habuimus, et transgressiones si quas nobis vel fecerunt, usque ad praesentis Chart • confectionem. Et in majorem securitatem hujus rei, volumus et concedimus pro nobis et haeredibus nostris, quod omnes Archiepiscopi, et Episcopy Angliae in perpetuum in suis Cathedralibus Ecclesiis habita praesenti Charta relicta excommunicent publice, et in singulis Parochialibus Ecclesiis suarum D • ocesium excommunicari faciant, seu excommunicatos denunciare bis in anno, omnes qui contra tenorem praesentis Chartae vim et effectum in quocunque articulo scienter fecerunt, aut fieri procuraverunt quovismodo. Missis igitur in Flandriam nunciis ad ipsum Regem, confirmationem omnium istorum sub sigillo suo (tanquam ab eo qui 〈…〉 • tus erat, cedendum malitiae temporis censuit) obtinuerunt. Pro eonfirmatione et harum rerum omnium dedit populus Anglicanus Regi denarium nonum bonorum suorum, Clerus vero Cantuariensis Decimum, et Clerus Eboracensis Quintum, qui propiordamno fuit. So Walsingham truly relates the History of this transaction.
These Statutes thus obtained by the Earls and Barons from the King, are printed in our Statutes at large, with the excommunication of the Prelates then denounced against the infringers of them, in Rastals Abridgement of Statutes, & Sir Edward Cooks 2 Institut. p. 527. to 537. being thus entitled: Confirmationes Chartarum de Libertatibus Angliae et Forestae, et Statutum de Tallagio non concedondo. made both in the 25 year of Edward 1. not in the 34, as our Statute books, and Sir Edward Cook misdate the latter of rhem. The differences between the King, these Earls and Nobles touching these liberties, with his confirmation of them, and the aid granted him for the same, are likewise recorded in the Patent Roll of 25 Ed. 2. par. 2. m. 6, 7, 9. And Claus. 25 E. 1. m. 2.5.14.18.76 dors. there are sundry Writs and Proclamations sent to all the Sherifs for the keeping of Magna Charta in all its articies, and to the Bishops to excommunicate the Infringers of them, agreeing with Walsinghams relation.
Anno 1299. the 26 of King Edward the first, the king holding a Parliament at York, the foresaid Earls, because the Confirmation of the Charters forementioned was made in a foreign land, requested that for their greater security, they might be again confirmed by the King in England, which the Bishop of Durham and three Earls engaged he should do, upon his return out of Scotland with victory. Whereupon this King the next year (being the 27 of his reign) holding a Par • iament at London: Ubi rogatus a Comitibus saepe dictis, ut Chartarum confirmationem renovaret, secundum quod in Scotia promiserat, post aliquas dilationes instantiae eorum acquievit, hac additione, Salvo jure Coronae nostrae infine adjecta. Quam cum audissent Comites, cum displicentia ad propria recesserunt, sed revocatis ipsis ad quindenam Paschae ad votum eorum absolute omnia sunt Concessa. And thereupon the Statutes entitled Articuli super Chartas. (28 E. 1. in our printed Statutes, and Cooks 2 Institutes, whereas it should rather be 27.) were then made and published by these Earls and Nobles procurement; and Writs sent to all the Sherifs De quibusdam Articulis in MAGNA CHARTA contentis, & Chartae de Foresta Henrici Patris nostrae observandis. Rot. Claus. 27. E. 1 m. 17. And Pat. 28 E. 1. m. 14. Commissions are sent into all Counties, de Artic. in mag. Chart. content. & Stat. Regis apud Winton edita observandis, and that whosoever did not observe every Article, should be punished per imprisonamentum, redemptionem, vel amerciamentum, secundum quod transgressio exigeret, there being no certain way of punishment before ordained. And Claus. 28 E. m. 7, 8. There are Writs sent to every Sherif, to read & proclaim magna Charta in his County 4 times every year, & to proclaim Articulos super Chartas à Rege populo concessos.
But the Execution of the Articles of the Forest being deferred, notwithstanding these Proclamations, thereupon King Edward held a Parliament at Stanford the 29 year of his reign; ad quod convenerunt Comites et Barones cum eqnis et armis, eo prout dicebatur proposito, ut executionem Chartae de Foresta, hactenus dilatam extorquerent ad plenum: Rex autem eorum instamiam & importunitatem attendens, eorum voluntati in omnibus condescendit. To omit all other Presidens, these forecited abundantly evidence the gallantry, stoutness, heroical courage, care, vigilancy, of the Lord's in all our Parliamentary Councils, to maintain and defend the fundamental Liberties, Properties, Great Charters of the Realm, and to perpetuate them to posterity, without the least violation: to vindicate, re-establish them when infringed, and to withstand, oppose all unjust aids, taxes, subsidies, when either demanded, levied, exacted by our Kings, though in cases of pretended or real necessity to supply their wants, maintain their wars, and protect the Realm from foreign enemies. I shall only produce three of four Historical Presidents more, demonstrating what great Curbs, Remoraes, Obstacles, some particular potent Noblemen of great estates, alliance, public spirits have been to the exorbitant arbitrary wills, power, proceedings of our Kings, who most endeavored openly to subvert, or cunningly to undermine our public Laws and Liberties.
Mat. Paris, speaking of the death of Geoffrey Fitz-Peeter, one of the greatest Peers of that age, writes thus of him, This year (Anno 1218.) Geoffrey Fitz-Peeter Chief Justice of all England, a man of great power and authority, TO THE GREATEST DETRIMENT OF THE KINGDOM, ended his days the 2. day of Octob. ERAT autem FIRMISSIMA REGNI COLUMNA, for he was the most firm pillar of the Kingdom, as being a Nobleman, expert in the Laws, furnished with treasures, rents, and all sort of goods, and confederated to all the great men of England by blood or friendship: whence the King without love did fear him above all men, for he governed the reigns of the Kingdom. Whereupon after his death, England was become like a ship in a storm without an helm. The beginning of which tempest was the death of Hubert Archbishop of Canterbury, a magnificent and faithful man, neither could England breath again after the death of these two. When K. John heard of Fitz-Peeters death, turning to those who sat about him, He said ; By God's feet, now am I first King and Lord of England. He had therefore from thenceforth more free power to break his Oaths and Covenants which he had made with the said Geoffrey for the people's Liberty and Kingdoms peace. Such Pillars and Staies are great and stout Peers to a Kingdom, and Curbs to tyrannical Kings; which caused Vortigern the British King • who usurped the Crown with the treacherous murder of his Sovereign; Nobiles deprimere, et moribus et sanguine ignobiles extollere, quod maxim regiae honestati contrarium est, to secure his throne thereby against their predominant power; as other Usurpers and Tyrants since have done: Therefore of mere Right they ought to have a place and voice in Parliaments, for the very Kingdoms safety and welfare, without the people's election.
William Duke of Normandy having slain the Usurper King Harold, with many thousands of Englishmen in the field, routed his whole Army, and caused the City of London and most parts of England to subject themselves unto him as their Sovereign, out of base fear; thereupon Stigand Archbishop of Canterbury, and Eglesine Abbot of St. Augustine, chief Peers of the Realm, and Lord's and Governors of Kent, to preserve themselves, their Country, Laws and Liberties from vassalage to the Norman yoke, assembling all the Commons of Kent to Canterbury ; informed them: That they were born freemen, that the name of bondage was never heard amongst them: that nothing but servitude attended them, if they unworthily submitted to the insolency of the invading Enemy, as others had done. And thereupon exhorted them, manfully to fight for the Laws and Liberties of their County, choosing rather to end an unhappy life, by fighting valiantly for them in the field, than to undergo an unaccustomed yoke of bonduge, or to be reduced from their known Liberties to an unknown and unsure slavery. After which the Archbishop and Abbot, choosing rather to die in battle, than to behold the misery and slavery of their Native Country, became the Captains of the Kentish Army which they raised; and by a Stratagem invironing Duke William and his whole Army at Swanscomb ; they procured this Grant and Concession from him, That all the people of Kent should forever enjoy their ancient Liberties without diminution, and use the Laws and ancient Customs of their Country: they being resolved (as Stigand told the Duke) rather to part with their lives than them; Liberty being the proper badge of Kentishmen. After which Duke William marching to London to be Crowned King, Cumque • eracta victoria Tyranni nomen exhorrescens, et legitimi Principis personam induere Gestiens, à Stigando tunc temporis Can • uariensi Episcopo consecrari deposceret; Ille (out of an heroic gallant English Christian spirit) Viro, ut ai • b • t, Cruento et alien • juris Invasori, manus imponere nullatenus adquievit. Whereupon he was crowned by Aldred Archbishop of York : King William for this his stoutness and opposition in defense of his Countries Laws and Liberties, under a pretence of honor, first carried him with him into Normandy, as a Prisoner at large: afterwards upon feigned pretences, caused him to be deprived of his Archbishopric, and then shut him up Prisoner in the Castle of Winchester, where he soon after died of grief or famine, having scarce enough allowed him to keep soul and life together: Such a curb and terror was he to him, whiles he lived in place and power, that he could not carry on his designs against the English, to captivate, or enslave them, till he was removed out of the way of this Conqueror; who came to the Crown by the effusion of so much Christian blood, that Gulielmus Neubrigensis gives this censure of it; (and let all other invaders of the Crown by blood observe it;) Sane quod idem Christianos innoxios hostiliter Christianus impetiit, et tanto sibi sanguine Christianum Regnum paravit, quantae apud homines gloriae, tantae etiam apud Deum noxae fuit. Whence Stigand refused to crown him. Simon Mon • e • ort Earl of Leicester, the greatest Pillar, and General of the Barons, in the wars against King Henry the 3d, for the preservation, corroboration of Magna Charta, the Liberties and Properties of the People, was so terrible to this extravagant, oppressive King, frequently violating both his Great Charters, Laws, Oaths, That being persuaded to enter into his house, in a tempest of thunder and lightning, which he very much feared ; the Earl courteously meeting him and saying: Why do you fear? tht tempest is now past : the King thereunto replied, not jestingly, but seriously with a stern countenance, I fear thundering and lightning above measure, but by the head of God, I tremble more at thee, than at all the thundering and lightning in the world. Being afterwards slain in the Battle of Eusham in defense of his Countries Liberties. Rishanger gives this Encomium of him, Thus this magnificent Earl Simon ended his days, who not only bestowed his estate but his person and life also, for relief of oppressions of the poor, for the asserting of Justice and the Rights of the Realm. A sufficient Ground for such Nobles and their Posterity to sit and Vote as Peers in Parliament without the people's election.
In the 3, 4, 14, & 15 of K. Edw. 2. his reign, Tho. Earl of Lancaster, and other potent wealthy Barons, were the chief Sticklers against Gaverston and the Spencers, who seduced the King, oppressed the people: and were the principal Pillars of our Laws & Liberties, as our Historians relate at large, procuring those ill Counselors to be banished, and removed from the King even by force of Arms. In 10 11, & 22. of King Rich. 2. the Duke of Gloucester, the Earl of Arundel, and other potent Lord's were the principal opposers of the Kings ill Counselors, Tyranny, the chief protectors of the Laws and people's Liberties, to the loss of some of their lives, heads, estates, as our Statutes, the Rolls of Parliament in those years, and Historians witness: whence Walsingham writing of the Duke of Gloucester's death, murdered by the Kings command at Calais who was the principal Anti-royalist and head of all the Barons, useth this expression, Thus died this best of men, the Son (and Uncle) of a King, in quo posita fuere spes & solatium TOTIUS REGNI COMMUNITATIS, in whom the hope and solace of the Commonalty of the whole kingdom were placed: who resented his death so highly, that in the Parl. of 1 H. 4. Hall, who had a hand in his murder, was condemned and executed for a Traitor, his Head, Quarters hung up in several places, and K. Richard among other Articles deposed, for causing him to be murdered.
Since then our Peers and Nobles, as the premised Examples abundantly evidence, have been always persons of greatest valor, power, estate, interest, most able, forwards to oppose the Tyranny, Exactions of our Kings, and to preserve the Great Charters of our Liberties, first gained, since preserved and transmitted to us by their valor, blood, counsel, cate, with our other Laws, which they have upon all occasions manfully defended, with the hazard, loss of their lives, Liberties, Estates, and upon this ground were thought meet by the wisdom of our Ancestors to merit and enjoy this privilege of sitting, voting, judging in Parliament, by virtue of their Peerage, and Baronies: And since we must all acknowledge, that the Lord's (assembled in a Great Council by the King at York, as the Commons themselves acknowledge and remonstrate, Exact. Collection, p. 13.) were the chief instruments of calling this present Parliament, and were therefore in the Act for Triennial Parliaments, principally entrusted to summon and hold all future Parliaments in the Kings, Lord Chancellors, or Lord Keepers defaults : Being also very active in suppressing the Star-chamber, High Commission, Council-Table, Prelates, and other grievances, and those who fitst appeared in the Wars against the King and his party, in defense of our Laws, Liberties, Religion, Parliaments Privileges, to the great encouragement of others, (witness the deceased Lord General Essex, Brooke, Bedford, Stamford, Willougbie, Lincoln, Denbigh, Manchester, Roberts, and others) it would be the extremity of folly, ingratitude and injustice to deny our Peers this hereditary Right, Privilege, Honor now, w ch they & their Ancestors purchased at so dear a rate; and a means to dis-engage them forever siding hereafter with and setting them against the Commons, and Republic, for such an high dishonor and affront as this will prove.
3ly. Our Lord's and Nobles have been the stoutest Champions to defend the Rights, Privileges, Liberties of the Crown, Realm and Church of England, the Great Charters, Liberties, Laws, Franchises, Properties of the Clergy, people therein, against the Popes and Prelates Antichristian invasions and enchroachments on them; for proof whereof I shall present you with these few pertinent presidents, instead of many others, recorded in our Annals. Pope Paschal the 2. and his Confederate Anselm Archbishop of Canterbury, endeavoring by a Papal Decree, to deprive the King of the investiture of Bishoprics, by a Ring and Staff, which his Ancestors enjoyed, The King thereupon writ, and sent him a Letter by two of his Bishops, Anno Dom. 1103. wherein he concludes thus.
In the year 1185. Heraclius Patriarch of Jerusalem coming into England with the Keys of the Tower of David, and of Christ's Sepulcher, and the Banner of the holy Cross, presented them to King Henry at Reading, whom they had elected King thereof, with an earnest Letter from Pope Lucius to accept thereof, that so he in his absence might the more securely invade the rights of his Crown and Kingdom. Hereupon the King Convocatis apud Londoniam totius Angliae Primatibus, as Gervasius Dorobernensis, or Convocato C • ero Regni ac populo (to wit rhe Prelates and Nobles, not ordinary Clergy and Commons, usually expressed by this phrase) as Mat. Paris relates it; Convenerunt Londoniis apud Fontem Clericorum, decima Kalendas Aprilis Rex, cum universa Nobilitate Regni, which expounds Clerus Regni et Populus. Whence Radulphus de Diceto thus relates it. Ad vocationem Regis Cantuariensis electus, et Cantuariensis Ecclesiae Suffraganei, Dunelmensis Episc. Abbot. Conventualium locorum Praelati, Comites et Barones convenerunt apud fontem Clericorum 15 Kal. Apritis. Rex itaque Patriarcha, Magistro sanctae domus hospitalis Jerosolomi audientibus omnes suos fideles qui convenerant adjurationibus, multis obstrinxit, quatenus proponerent in medio, quod super his saluti animae suae viderint expedire. Ad hoc enim cor suum inclinatum dicebat, ut quod acciperet ex eorum consilio modis omnibus observaret. Tunc Concilio universo super praemissis colloquenti, datum est igitur sub deliberatione, quod esset consultius, vel quod Rex in propria sua persona Jerosolomitanis succurreret, vel Anglorum regno, cujus gubernationem in facie Matris Ecclesiae dudum susciperat, adhuc praeesse nulla ration desisteret. Ad illa siquidem tria quae Rex quilibet consecrandus promitiit aliqui revocabant. Promittit namque se praecepturum & opem pro viribus impensurum, ut Ecclesia Dei populusque Christianus veram pacem in omni tempore servet. Promittit etiam, quod rapacitates, et omnes iniquitates omnibus gradibus interdicet. Promittit adhuc, quod in omnibus judiciis aequitatem & misericordiam praecipiet. Satius ergo visum est UNIVERSIS, & animae Regis multo salubrius, quod regnum suum debita cum moderation gubernet, et a barbarorum irruptionibus, & a gentibus externis tu • atur, quam saluti Orientalium in propria sua persona. De filiis Regis quidem, quorum petiis aliquem Patriarcha, si Rex tamen recusaret, quicquid statuere cum essent absentes, incongruum videbatur. Whereupon Heraclius returned, the Pope and he by this advice of the Nobles being both deprived of their hopes: Rex inito consilio, responderat, quod oblatum sibi Regnum Hierosolomitanum accipere et adire, et Regnum Anglorum deserere, & hostibus vicinis exponere, non fuit ut credidit Deo acceptum, cum sit Deo tam gratum, tam devotum hoc, ut illud.
King John in the 17 year of his reign having confirmed the Great Charter of the liberties of England, and of the Forest, by his Seal, Oath, and the Popes own Bull, after his surrender of his Crown and kingdom ro the Pope, regranted to him under an annual tribute, Pope Innocent by his Bull in a General Council held at Rome, repealed these Charters of the King, as compelled to grant them by force and fear against his will; commanding the King, under pain of a curse and excommunication, not to observe, & the Barons not to exact or demand the said Charters, or any obligations or cautions whatsoever, for or concerning them, which he utterly cancelled and made void, ut nullo unquam tempore aliquam habeant firmitatem: Writing also exhortatory & minatory Letters to the Barons, not to claim the said Charters or Liberties, (obtained by force and fear and therefore not only vile and dishonest, but unlawful and unjust under pain of his displeasure and Sentence : But what was the issue, Matthew Paris thus records.
The Pope being informed, that the Barons persisted in the prosecution of their Liberties and Wars against the King; excommunicated them & all their adherents in general, for contemning and disrespecting his said Papal Decree, Letters, authority; and suspended the Archbishop of Canterbury for siding with them. But they contemning this his Sentence, and persevering in their designs, and wars, he thereupon excommunicated all the Barons by name, and likewise interdicted them and their adherents; which being published in most places in the Country, and thereby coming to the Londoners and Barons knowledge, they exceedingly slighted his excommunications, & revi • ed, contemned the Popes authority in the highest degree, (as Matthew Paris (though a Monk) thus relates) Excommunicationis et interdicti sententias civitas Londinensis, per contumaciam multiplicem adeo contemnendo despexit, quod nec ease Barones observare, nec Praelati publicare DECREVERUNT. Dicebant enim generaliter, omnes literas falsa suggestione fuisse impetratas, & ideo nullius esse momenti, & hoc maxim, quod non pertinet ad Papam ordinatio rerum Laicorum, cum Petro Apostolo, & ejus successorihus non nisi ecclesiasticarum dispositio rerum à Domino sic collatae potestas. Ut quid ad nos extendit Romanorum • nsatiata cupiditas? Quid Episcopis Apostolicis et militiae nostrae? Ecce Successores Constantini, & 〈◊〉 Pe • ri: 〈◊〉 imitantur Petrum in meritis vel operibus, nec assimulandi sunt in Potestate; Proh pudor, marcidi ribala • , qui de armis vel libertate minime norunt, jam toti mundo propter excommunicationes suas volunt dominari, ignobiles usurarii et Simoniales. O quantum dissimiles Petro, qui sibi Pe • ri usurpant partes? Sic igitur blasphemantes & recalcitrantes, ponentes os in coelum, ad interdicti sive Excommunicationis sententiam, nullum penitus habentes respectum, per totam civitatem celebrarunt divina signa, pulsantes & vocibus altisonis modulantes. Hereupon the Pope reviving his Excommunication against them, the Barons still slighted it as before deposing King John from the Crown, and electing Louis of France for their King, and thus revi • ing the Pope for siding with King John. Et quid de te Papa? qui pater sanctitatis, speculum pietatis, tutor justitiae, & custos veritatis toti mundo deberes lucere in exemplum, tali consentis, talem laudas & tueris? Sed hac causa, exhaustorem pecuniae Anglicanae, & exactatorem Nobilitatis Britannicae tibi inclinantem defendis, ut in barathrum Romanae avaritiae omnia demergantur: sed haec causa et excusatio, est ante Deum, culpa et accusatio. Et sic Barones lachrymantes & lamentantes, Regem & Papam maledixerunt.
Anno 1229. the 23. of King Henry the 3. Fecit convenire apud West monasterium Dominica, qua cantatur, Misericordia Domini, Archiepiscopos, Episcopos, Abbates, Priores, Templarios, Hospitilarios, Comites, Barones, Ecclesiarum Rectores, & qui de se tenibant in capite (but no elected Knights, Citizens or Burgesses that we read of) ad locum praefixum et diem ; that they might hear the businesses Stephen the Popes Chaplain and Legat had to propound unto them from the Pope, & de rerum exigentiis communiter tractarent ibidem: Omnibus igitur congregatis, tam Laicis quam Clericis, & eorum subjectis, Magister Stephanus coram omnibus recitavit Literas Domini Papae; in quibus exigebat Decimas omnium rerum mobilium de tota Anglia, Hibernia, et Wallia, ab universis Laicis & Clericis, ad guerram suam sustinendam, quae contra Romanum Imperatorem susceperat Fredericum, ipse solus, pro Universali Ecclesia &c. The Legat herupon pressing them earnestly to grant this strange Tenth to the Pope, the King, from whom all the rest expected to have protection and defense against it, becoming formerly bound by his Proctors to pay this Tenth, seemed to give consent thereto by his silence. Comites vero et Barones ac Laici omnes, plane decimas se daturos contradixerunt, nolentes Baronias suas vel Laicas Possessiones Romanae Ecclesiae obligare. Episcopy quoque & Abbates, Priores et alii Ecclesiarum praelati, post trium vel quatuor dierum deliberation • m, et murmurationem non modicam, tandem consenserunt, metuentes excommunicationis sententiam vel interdicti sibi inferri, si mandatis Apostolicis obviarent. The Earls, Barons, and Laity scaping scot-free from this Papal Exaction by their strenuous opposition, when as the King and Clergy basely and unworthily submitted to it out of fear, to their intolerable oppression.
An. 1239. The Pope usurping by his Provisions upon the Barons and Patrons Rights and Advowsons in England: Thereupon the Earls, Barons, and other Great men of England, dolentes se privari sua Libertate, & per cupiditatem Romanae Ecclesiae jure conferendi ecclesias enormiter privari, et alienigenas praecepto Papali illis ditari, quorum personas et conditions penitus ignorabant; sent this notable Letter to the Pope concerning it, by Sir Robert Tuinge, Knight.
In the Parliamentary Council held at Merton An. 1229. Anno, 20 H. 3. cap. 9. All the Bishops (to set up the Popes and their own Canons above the Common Law of England ) earnestly entreated the Lord's, that they would consent, that those who were born before matrimony might be legitimare, as well as those born after marriage, as to hereditary succession, because the Church held such for legitimate: et omnes Comites et Barones una voice responderunt, nolumus leges Angliae mutare, quae hucusque usitatae sunt & approbatae . Upon which Sir. Edw Cook observes; That the Nobility of England, have ever had the Laws sf England in great estimation and reverence, as their best birthright.
Anno 1244. the 28 of Henry the third, Pope Innocent sent one Martin his Legate into England, with letters, demanding a large contribution from the Prelates, Abbats and Clergy, to be speedily collected as he should direct; which coming to the knowledge of all the Lord's, and Great men, omnes ad Praelatos accesserunt, ut uno per omnia consilio uterentur, quia hoc negotium generalem statum Regni contingebat . Whereupon all the Prelates by the Lord's advice and encouragement denied to grant the Pope any aid at all, & sic soluto Concilio recesserunt.
The next year, Anno 1245. This Martin violently seising on the lands and profits of divers Churches and religious persons, "prorerva & injuriosa authoritate, wherein the King protected him against all men, whereby the condition of the Realm became most miserable: thereupon
After w ch Poweric delivered to the Council the foresaid to the Pope, concerning the manifold extortions, innovations, oppressions of the Church of Rome exercised in England, there recorded at large, and worthy perusal: The close of which Epistle of all the Barons, is this. That although the King being a Catholic Prince, &c. would continue in the obedience of the See and Church of Rome, and seek the increase of her honor and profit,
Gravatur regnum Angliae, ex eo quod Dominus Papa, non est contentus subsidio illo quod vocatur Denarius beati Petri, sed à toto Clero Angliae, gravem extorquet contributionem, & adhuc multa graviora nititur extorquere; & hoc facit sine domini Regis assensu, vel consensu, contra antiquas Consuetudines, Libertates, et regni jura, et contra appellationem et contradictionem Procuratorum Regis & Regni in generali Concilio factam.
Item, gravatur Ecclesia et Regnum, eo quod Patroni eccle • iarum ad ease cum vacaverint, clericos idoneos praesentare non • ossunt, prout Dominus Papa eis per literas suas concessit, sed • onferuntur Ecclesiae Romanis, qui penitus idioma regni ignorant, in periculum animarum, et extra Regnum pecuniam asportant, illud ultra modum depauperando.
Item, gravatur in Provisionibus à Domino Papa factis, in pensionibus exigendis, contra literarum suarum tenorem, in quibus continetur, quod ex omnibus retentionibus factis in Anglia, non intendebat confer, nisi 12 beneficia post praedictarum literarum confectionem; sed credimus multa plura Beneficia ab eodem postea esse collata, et provisiones factas.
Item, gravatur quod Italicus Italico succedit, et quod Anglici extra Regnum in causis authoritate Apostolica trahuntur, contra Regni consuetudines, contra jura scripta, eo quod inter inimicos convenire non debent, & contra Indulgentias à praedecessoribus domini Papae, Regi & regno Angliae concessas.
Item, gravatur ex multiplici adventu illius infamis nuncii, NON OBSTANTE, per quem Juramenti religio, consuetudines antiquae; Scripturarum vigor, concessionum auctoritas, statuta, jura et privilegia debilitantur et evanescuut: quod infiniti de regno Angliae oppressi sunt graviter & afflicti, nec se Dominus Papa versus Regnum Angliae in plenitudine suae potestatis revocanda, curialiter ita vel moderate gerit, prout Procuratoribus Regni ore tenus dederat in promissis.
Item, gravatur in tallagiis generalibus, collectis et assisis sine Regis assensu et voluntate factis, contra appellationem et contradictionem Procuratorum Regis & Universitatis Angliae.
Item gravatur, eo quod in beneficiis Italicorum, nec jura, nec pauperum sustentatio, nec hospitalitas, nec divini verbi praedicatio, nec ecclesiarum utilis ornatus, nec animarum cura, nec in ecclesiis divina sunt obsequia, prout decet et moris est patriae, sed in aedificiis suis parietes cum tectis corruunt, et penitus lacerantur.
Upon the reading of these Articles, all and everyone agreed to send both solemn Letters and Messengers to the Pope, and humbly to entreat him to remove these intolerable Grievances and yokes of bondage; all the Abbots and Priors by themselves, the Bishops by themselves, the King by himself, and all the Earls and Barons by themselves, in their own names, and of the whole Clergy and people of England, writing several Letters to the Pope for this end, • ecorded in Matthew Paris ; that of the Lord's being very memorable, I shall here insert.
The King in the mean time, by the Lord's advice, sent this Prohibition to the Clergy, not to pay any Tax or Tallage to the Pope; H. Dei gratia &c. Venerabili in Christo tali Episcopo salutem. Licet alias vobis scripserimus, semel secundo, & tertio, tam per literas nostras clausas, quam patentes, ne ad opus domini Papae vel alterius tallagium aliquod vel auxilium exigeritis à viris Religiosis, clericis vel laicis, cum nullum hujusmodi tallagium vel auxilium exigi possit vel consueverit sine magno praejudicio Regiae dignitatis, quod nullo modo poterimus aut volumus sustinere: Vos tamen mandatum nostrorum in hac parte co • emnentes, contra provisionem per Magnates nostros, tam Praelatos quam Comites et Barones factam in Concilio nostro Londoniensi: & concessam exactionem faciatis memoratam, super quo miramur plurimum & movemur, praesertim cum facto vestro proprio non erubescitis contraire, cum vos & alii Praelati in praedicto Concilio communiter concesseritis, quod nihil de exactione hujusmodi faceretis, donec nuncii nostri & vestri, necnon & aliorum Magnatum nostrorum & totius universitatis regni nostri à curia Romana redirent, qui pro liberatione oppressionum ad curiam illam, sicut nostis, fuerant specialiter destinati. Vobis igitur mandatis inculcatis mandamus injungentes, firmius & districtius inhibentes, ne ad exactionem praedicti tallagii vel auxilii faciendam aliquatenus procedatis, sicut gaudere desideratis Baronia vestra & possessionibus vestris, quas in regno nostro tenetis. Et si quid inde cepistis, extra regnum nostrum asportari nullatenus permittatis, sed illud salvo custodiri faciatis usque ad reditum nunciorum praedictorum, indubitanter scituri, quod si secus egeritis, nos ad possessiones vestras manum gravaminis, ultra quam credere velitis, extendemus. Hanc autem inhibitionem vobis in jungimus faciendam Archidiaconis & officialibus vestris, quam quidem pro libertate cleri & populi facimus, novit Deus, &c.
The Messengers sent with these Letters to the Court of Rome returning thence, thereupon the same year, Die translationis beati Thomae Martyris habitum est MAGNUM CONCILIUM inter Regem et REGNI MAGNATES apud Wintoniam: Wherein,
The Pope hereupon taking more boldness than before to trample the English Prelates & Clergy under his feet, & fleece them;
Dominus Rex comperiens regnum suum enormiter undique "periclitari (by the Popes, exactions, taxes, oppositions) " jussit OMNEM TOTIUS REGNI NOBILITATEM CONVOCARI, ut de statu ipsius tam manifest periclitantis Oxoniae contrectarent. Praelatos autem ad hoc Parliamentum vocavit anxius, quia videbat eos tam frequenter per Papul • s extortiones depauperari, quod frequentia consuetudinem, & regni ruinam manifest minabatur. Sperabatur igitur communiter aliquod salubre Ecclesiae, et universitati ibi statuendum, quod tamen omnes fefellit, through the Prelates and Clergies cowardice, and the kings overmuch compliance with the Pope, the Nobles only continuing constant in their oppositions against these papal exactions and enormities, being more zealous for the Churches Clergies & Prelates liberties, against the Popes intolerable exactions, oppressions, encroachments, than they themselves, and the only persons who manfully and constantly maintained them, when the King, Prelates and Clergy through fear, cowardice and treachery betrayed and deserted them.
Anno 1264. Pope Urban being much incensed against the BARONS spoiling the goods of Ecclesiastical persons, who were Aliens advanced by his provisions, said, That he desired to live no longer but till he had subdued the English ; whereupon he sent a Legate towards England, a great Person, to wit Sabin a Bishop Cardinal, to interdict the Land and excommunicate THE BARONS the oppugners of his Provisions. But when he would have entered England, he found he could not safely do it, by reason of the Barons resistance ; Whereupon citing some Bishops of the Realm first to Ambayonne, and afterwards to Bononia,
An. 2 E. 1. Rot. Fin. m. 9. in Sched. Cook 4 Inst. p. 13. Pope Gregory by his Letters demanding the rent of 1000. marks by the year of K. Ed. the 1. reserved for England, upon his regranting the Realm to King John, the king writ thus to him:
King Edward the 1. in the 29. year of his reign, being summoned by the Pope, by himself or his Proctors to declare his right to the Realm of Scotland in his Court at Rome, where he should receive justice concerning it. The King thereupon called a Parliament to consult about it: where he refused to return any answer by himself, but committed it to the Earls and other Lord's of the Land to return the Pope an answer thereunto. Who making a large and learned Historical Remonstrance of the subjection of Scotland and her Kings to the Kings of England, and of their Homage done to them in all ages as their Sovereign Lord's, sent it to the Pope, with this notable Letter signed (as Mat. Westminster and Sir Edward Cook inform us) with no less than 100 Seals of Arms of Earls and Barons, in the name of the whole Parliament and Kingdom.
Sancta Romana Ecclesia, per cujus ministerium fides Catholica in suis artibus; cum ea ut firmiter credimus et teneamus maturitate procedit, quod nulli praejudicare, sed singulorum jura conservari velit illaesa. Sane convocato nuper per Serenissimum Dominum nostrum ▪ Edwardum, Dei gratia regem Angliae illustrem, Parliamento apud Lincolniam generali, idem Dominus noster quasdam literas Apostolicas, quas super certis negotiis conditionem et statum Regni ex vestra parte receperat in medio exhiberi, ac seriose nobis fecit exponi. Quibus auditis & diligenter intellectis, ita sensibus admiranda quam hactenus inaudita in eis audivimus contineri. Scimus enim Pater sanctissime, et notorium in partibus nostris, ac nonnullis aliis non ignotum, quod à prima institution Regni Angliae, Reges ejusdem regni, tam temporibus Britonum, quam Anglorum, superius & directum Dominium regni Scotiae habuerunt in possessione, vel capitanei superioritatis et recti Dominii ipsius Scotiae successivis temporibus habuerunt, nec ullis temporibus ipsum regnum in temporalibus pertinuit, vel pertinet quovismodo ad Ecclesiam supradictam. Quinimo idem Regnum Scotiae dicti Regni nostri Regibus Angliae atque sibi faeodale extitit ab ant • quo. Nec etiam Reges Scotorum & Regnum, aliis quam Regibus Angliae subfuerunt, vel subjici consueverunt, neque Reges Angliae super juribus suis in regno praedicto, aut aliis suis temporalibus, coram aliquo judice ecclesiastico vel saeculari, ex Praeeminentia status suae Regiae dignitatis et consuetudinis cunctis temporibus irrefragabiliter observatae responderunt, aut respondere debebant. Unde habito tractatu et deliberatione diligenti super contentis in Literis vestris memoratis, communis, concors, & unanimus omnium nostrum et singulorum consensus fuit, et erit inconcusse Deo propitio in futurum, quod praefatus Dominus noster Rex super juribus Regni Scotiae, aut aliis suis temporalibus nullatenus respondeat judicialiter coram Vobis, nec judicium subeat quoquo modo, aut jura sua praedicta in dubium quaestionis deducat, nec ad praesentiam vestram Procuratores aut nuncios ad hoc mittat: praecipue cum praemissa cederent manifest in exhaeredationem juris coronae Regni Angliae, et Regiae dignitatis, ac subversionem Status ejusdem Regni notoriam, necnon ad praejudicium Libertatis, Consuetudinum et Legum paternarum, ad quarum obfervationem et defensionem debito praestiti juramenti astringimux, et quae manutenebimus toto posse, totisque viribus cum Dei auxilio defendemus. Nec enim permittimus, nec aliqualiter permittemus, sicut non possumus, praemissa tam insolita, tam indebita, praejudicialia, & alias inaudita praelibatum dominum regem, etiam si vellet, facere, seu modo quolibet attemptare. Quapropter sanctitati vestrae humiliter supplicamus, quatenus eundem nostrum dominum Regem, qui inter alios Principes orbis terrae Catholicum se exhibet, et Romanae Ecclesiae devotum jura sua, Libertates et Consuetudines et leges praedictas abique diminutione et inquietudine pacifics pof • idere, as illibata persistere benignius permittatis. A most noble, heroical, loyal, magnanimous Resolution of all the English Peers to their King and Country, even against the Popes encroachments on them, though then their Ghostly Father.
Anno 1307. King Edward the 1. held a Parliament ar Carlisle, in quae per Majores regni graves deposita sunt querimoniae de oppressionibus Ecclesiarum et Monasteriorum multiplicibus extortionibus pecuniarum, per Clericum Domini Papae, Magistrum Gulihelmum de Testa noviter in regnum inductis; praeceptumque est eidem clerico DE ASSENSU COMITUM & BARONUM, ne de caetero talia exequatur; Ordinatum etiam erat quod pro remedio super hiis obtinendo, ad dominum Papam assignati mitterentur Nuncii.
I shall close up this point with one memorable example more, Anno 1312. there being a great difference between King Edward the 2. and his Nobles, about his recalling Peter Gaverston after a double exile by sentence of the Lord's in parliament, who took up arms to expel him by force, and desired the King to confirm and execute certain Ordinances they had made, else they would by strong hand compel him thereunto: hereupon the Popes two Legates then in England, came with the rest of the Prelates of England and Earl of Gloucester to St. Albans, to mediate a Peace between the King and Lord's: from whence they sent their Clerks to Warhamstede, where the Barons then lay with their Army; cum Literis summi Pontificis eis pro pace roganda directis. Magnates audientes extraneos eis Literas apportate, ipsos quidem pacifice receperunt▪ sed literas recipere noluerunt, dicentes se non esse literatos, sed armis & militia exercitatos, et ideo videre literas non curarunt. Tunc qui missi fuerant requisierunt, si placeret eis habere colloquium cum Dominis suis, Domini Papae nunciis, qui pro pace reformanda personaliter accedere cupiebant. Ad haec PROCERES responderunt, Se in regno multos habere probos & literatos Episcopos, quorum consiliis uti volebant, et non ex • rancorum, quibus non esset cognita causa commotionis suae; praeciseque dixerunt, se nullo modo permissuros ut aliquis alienigena vel forensis intromitteret de factis suis, aut quibuscunque negotiis eos tangentibus infra Regnum. So much did the Lord's then slight the Popes Letters and Legates. Nuncii Domini Papae tali modo perterriti in crastino summo mane iter versus Londonias maturarunt, qui apud Sanctum Albanum loci commoditate illecti, moram traxisse per Mensem vel amplius cogitaverant. And so intermeddled no more therein.
The same year, Henry de Lacy Earl of Lincoln, lying upon his death-bed, used this Speech to Thomas Earl of Lancaster his Son-in-law, heir to 5. Earldoms. Quomodo Deus eum prae cunctis in regno ditaverit, honoraverit, & gloriae fecerat abundare. Quapropter, ait, et Deum diligere te, et honorare prae caeteris obligaris. Cernis Sanctam Ecclesiam Anglicanam honorabilem quondam et liberam, per Romanorum Oppressiones, & Regum hujus regni injustas Exactiones (proh dolor) ancillatam. Vides & plebem regni Tributis & Tallagiis apporiatam, & de conditione Libertatis in servitutem actam (a true character of our times, after all our wars for Liberty and Property.) Cernis regni Nobilitatem (quandoque toti Christianitati venerabilem) jam ab alienigenis in terra propria vilipensam. Adjuro te igitur per nomen Christi ut virum induas, exurgas, et eriges te ad honorem Dei & Ecclesiae, et patriae liberationem: adhibeasque tibi virum strenuum, nobilem & prudentem Guidonem Warwicensem Comitem, cum necesse fuerit de regni tractare negotiis, qui & consilio praeeminet et maturitate pollet. Non verearis insurgentes adversantes tibi dimicaturo pro veritate. Si his meis monitis acquieveris, in aeternum honorem & gloriam consequeris. Whereupon this Earl, pro relevanda sanctae matris Ecclesiae oppressione et recuperanda regni debita libertate, confederated with divers other Earls and Nobles, who electing him for their General, regni Nobilium communi decreti sententia. Then they sent Messengers to the K. to banish Peter G • verston ; which he refusing to do, they pursued him with their arms, cut off his head, slighted the Popes Letters and Nuncios ; regulated his Extortions, and enforced the King to confirm the Ordinances they made for the redress of all grievances both in Church and State; with the Great Charter, Laws and Liberties of the Church and people, in whose defense and quarrel this Earl afterwards lost his life.
To these I could annex many other such like Letters, resolutions, oppositions of our Earls, Lord's, Barons in Parliament, against the Popes Usurpations, Encroachments, upon the Crowns, Royalties of our Kings, and Liberties, Laws, Customs of our Kingdom, as 21 E. 3. rot. Parl. n. 63.40 E. 3. rot. Parl. n. 8. Cooks 4 Institutes, p. 13, 14.50 E. 3. rot. Parl. n. 85. to 108. 27 E. 3. c. 1. 38 E. 3. c. 4. & 16 R. 2. c. 5. wherein everyone of the Lord's temporal in Parliament answered and averred by himself severally and jointly with the rest, That neither King John nor any other could put himself or his Realm or people into subjection or Tribute unto the Pope, without their common assents: That the submission he made to the Pope, was without their assents, and against his Oath at his Coronation: That if the Pope by process or otherwise would attempt to enforce the King or his Subjects to render him the Services and annual Tribute for England and Ireland, granted him by King John, they would resist and oppose him with all their power : And moreover, That they will stand with the Kings Crown and Royalty in all cases of the Popes usurpations clearly in derogation of the Kings Crown, & in all other cases which shall be attempted against the said Crown and Royalty in all points, with all their power ; whose Gallantry, loyalty, stoutness, have been the chief means under God, to enfranchise our Kings, kingdoms, Church, from the manifold Antichristian Tyrannies, Usurpations, Oppressions, Taxes, Vassallages, Slavery of domineering Popes in all ages, as the premises with other instances sufficiently evidence. And upon this ground it was (by reason of the Popes incessant Usurpations in former times upon the Royalties, Rights, Liberties both of the Crown, Realm and Church of England ) that the Nobles in our Parliaments were in the very Writs of Summons ever called thereunto, to consult and treat with the King, Prelates, Lord's and Great men of the Realm, of certain weighty and arduous affairs concerning the State and Defense of the Realm, ET ECCLESIAE ANGLICANAE, and the Church of England ; the Defense of the Church as well as Realm against the Popes encroachments, being one chief business of our Lord's and Greatmen in our Parliaments; which now it seems is no part of our New-modelled Parliaments, as some style them; there beieg neither DEI GRATIA, nor Statum & defensionem ECCLESIAE ANGLICANAE to be found in any of their New Writs that I have seen; which had been an impious insufferable omission in all former ages: This Clause engaging our Peers so stoutly to resist the Pope as the premises demonstrate: which good service of theirs hath in common Justice, reason, equity; merited a Place and Vote for them and their Posterities in all our English Parliaments, without any popular election.
Before I proceed to the next reason of our Lord's sitting in Parliament, I shall earnestly importune, yea adjure all the ancient Earls, Barons, Nobles and Great men of our Realm; with all who have lately been, or pretend to be any Knights, Citizens, Burgesses of real or pretended Parliaments, our late and present swaying Grandees; and all Lawyers, Gentlemen, Freemen of our English Nation, seriously to review, and cordially to ponder all the forecited memorable presidents of their Noble Gallant public spirited Ancestors, here recited and bundled up together for their information, reformation, and undelayed imitation in this and the precedent reason, both in procuring, regaining, reestablishing the Great Charters of our fundamental Liberties, Rights, Properties, Freedom, with solemn New publications, Excommunications, Execrations, Oaths, Confederacies, Penalties, Laws, Edicts, for their own and their Posterities benefit; In denying, opposing, resisting all unreasonable or illegal Aids, Subsidies, Tenths demanded, entreated of, or exacted from them by our Kings upon real or pretended Necessities, Wants, Wars, or defense by Sea and Land; their bold, frequent, unanimous, magnanimous reprehensions of our Kings and their evil Counselors to their faces, for their Exorbitances, Misgovernment, Exactions, Oppressions, Violations of their Great Charter, Laws, Liberties, Privileges, Oaths, Promises, and unnecessary Warrs, or Expences without their public Counsel or advice: in their resolute inflexible unanimous resolutions, oppositions both in and out of Parliaments, against all illegal Papal Encroachments, Usurpations, Exactions on the Rights, Privileges of the Crown, Kingdom, Church, Parliament, Clergy, People, upon every fresh occasion; and in their vigilant, indefatigable zeal, earnest care, diligence, with the hazard of their Limbs, Lives, Liberties, Estates, and effusion of their blood for the public Liberty, Freedom, Ease, weal, good Government of the Nation, according to those wholesome Charters, Laws and Ordinances, which they procured for that end, with much industry, strife and opposition in many successive Parliaments. And then let them all with confusion of face, consternation of spirit and grief of heart seriously consider how stupendiously, monstrously and incredibly they have all for near ten years last past, most desperately apostatized, degenerated both from the Heroic, Noble, Gallant, Memorable Presidents, Practices, Courage, Zeal of these their Renowned Ancestors in every of these particulars, and from their own Praiseworthy Actions, Remonstrances, Councils, Parliamentary and Military proceedings of like Nature under our two last Kings, out of unworthy, un-English, unchristian Cowardize, Fear, Self-love, Sluggishness, Sottishness, Supineness, after all their late solemn public Protestations, Remonstrances, Declarations, Vows, Oaths, Leagues, Covenants, near ten years bloody intestine Wars, the overprodigal expense of many Millions of Treasure, and whole Oceans of precious Christian, Protestant English blood, for the real, or at least pretended Defense alone, and maintaining, secuting those ancient undoubted Fundamental Great Charters, Laws, Liberties, Properties, Privileges and Rights of Parliament, & exempting us from all future arbitrary, tyrannical, illegal Exactions, Taxes, Excises, Imposts, Imprisonments, restraints, exiles, and executions; which they have now all most ignobly submitted to without the least manly public or private Opposition, contradiction, or care, activity to break off those iron yokes of bondage, and intolerable, perpetual burdens; which some Impudent Intruders, and new Egyptian Taxmasters have most illegally imposed on them, as if they were all resolved to renounce all their former Great Charters, Laws, Liberties, Privileges, and Rights of English Nobles, Parliamentmen, Freemen, and to become the basest bondslaves under heaven. So that if these our Nobles Ancestors should now rise from the dead, they might justly stand amazed at this their ignoble, slavish cowardice, and universal degeneracy, yea disclaim them as spurious, and none of their heroic English progeny, and they all may justly demand this Question from themselves: Whether they be the genuine offspring of these their Noble Ancestors, or natural Freeborn English Peers or Freemen, and not rather the degenerate offspring of Russian Vassals or Turkish Gallyslaves, who never knew what English Freedom was? as if now born only to the greatest servitude and Bondage that ever mortals voluntarily submitted unto, through pusillanimous fear or baseness: For alas, where is the Nobleman, Knight, Citizen, Burgess, Lawyer, Gentleman or English Freemen to be found, who now dares manfully to claim, plead, avow, defend, or contend for the undoubted rights and privileges of his own Peerage, or our Parliaments, the famous Grand Charters of his own and the Nations Liberty and Freedom, either in or out of Parliament, after so many old, late military and Parliamentary Contests, Acts, Oaths, Excommunications, Remonstrances, Declarations, Protestations, Vows, Leagues, Covenants for their inviolable maintenance and defense in every Article, especially those which concern Peerage, Liberty, Property, Freehold, Life, the Members, privileges of our Parliaments? and that not only against their Sovereign and Superiors, with whom they formerly contested; but even against those late or present domineering Army-Officers, and Upstaris, who but a few years since were not only their fellow Subjects, but their Inferiors in all respects, yea their Mercinary Servants, Hirelings, and Mechanics of the lowest rank? or against the meanest Publicans, Officers or Excisemen, Governors of our new-molded Common-wealth, who have trampled our Great Charters, Laws, Liberties, properties and Parliaments themselves under feet, and not only scorn, deride, but disgust the very Name and Mention of Magna Charta, as offensive to their lawless tyranny, and repute the urging of it to control their arbitrary proceedings, encroachments, Taxes, Excises, little less than a capital offense. For proof whereof, I shall instance in One particulat. In August 1650. during my close Imprisonment in Dunster Castle, by Mr. Bradshaw and his Whitehall Associates lawless warrant, there came an Order from them, and the Committee of the Militia of Somersetshire, with near 200 pioneers of the County, to slight and demolish that Castle to the Ground, without giving Mr. George Luttrel, then owner thereof, the least notice. Who thereupon was advised by his Council, to send a Petition to Whitehall to stay the execution. The Petition then drawn by his Council being long and imperrinent, I did at his Wives request, draw up another short one for him to this effect. That Dunster Castle, was the ancient inheritance and chief Seat of his Ancestors and himself, of which many Manors were held by Knight Service and Castle-Gard; That his Father fortified and held it for the Parliament at his own charge; for which he was kept and died a Prisoner under the King: That his Uncle (who was slain near the Castle) and himself, were both Colonels for the Parliament, serving them gratis without any pay, for which the Kings party had sequestered his estate, felled his woods, seised his rents to the value of ten thousand pounds at least; that the Castle was regained from the Kings party principally by his means, being his only Mansion house: which if now suddenly pulled down, he and his family must lie in the Streets, and he sustain at least thirty thousand pounds new damage by it, instead of a recompense for his former losses and public unmercenary services, which would expose both himself and thē to the obloquy of their malignant Enemies. He thereupon humbly prayed, that according to Magna Charta, he might not be disinherited or disseised of this his Freehold, without any hearing or Legal trial, by this their Order, but that they would suspend or revoke it. This petition being sent to London was delivered to a Great Lawyer, (one of Mr. Bradshaws Associats, and a then sitting Member) to present; who commanded the very name and mention of Magna Charta only to be struck out, and the rest of the petition to be new written, because the very name of it would give offense or distaste to the COUNCEL at Whitehall, as he affirmed. Which I then found true by experience, my insisting on it in my Letters to them to demand my Liberty, being so offensive, that they would neither answer, nor read my Letters but with indignation. How others in late and present power have vilified and contemned the Great Charter, the petition of Righr, and all other Laws in confirmation of it, by dissolving the House of Peers, making and unmaking new forms of Parliaments at their pleasures, condemning, beheading Peers and others in new misnamed High Courts of Justice, without trials by their Peers, imprisoning, close imprisoning, confining, banishing, sequestering, disinheriting, disofficing Nobles, Parliament-men, and all sorts of Freemen at their pleasures, without any lawful cause, hearing or legal trial; by breaking up and ransacking their houses by armed Soldiers day and night, seising their horses, arms, Letters, papers, denying to grant them when imprisoned Habeas Corporaes, or to return them when granted, or bayl them when returned; by imposing intolerable, uncessant Taxes, Excises, Imposts, payments, penalties, sequestrations, forfeitures, Treasons, exiles, restraints, Engagements, Disabilities on the people; by commanding all Courts of Justice in their new Commonwealth, and all Judges and Justices of the same, Sherifs, Committee-men, Attorneys, Solicitors, and all other persons, without any Opposition or dispute whatsoever, to conform themselves to their most tyrannical Ordinances touching Taxes, Imposts, Excises, (though so much decried condemned by two Parliaments and themselves ) authorizing their Excisemen and Agents to levy their illegal new kind of Impositions by ex officio Oaths, Distresses, Fines, Forfeitures, sequestrations, seisures both of their real and personal Estates, breaking up of their houses, (which must stand open to their searches day and night, without opposition) by imprisonment of their persons, by indemnifying all Officers who shall thus illegally abuse them, giving them good costs and damages if sued, staying all their actions at Law for their just relief, and imprisoning all such Lawyers as grand delinquents, who shall dare to move for their Liberties, or plead their causes, (which not one dares do since Mr. Conyes late case.) And how our New-modelled Parliaments (as some style them) instead of complaining against and regulating these tyrannical oppressions, Exorbitances, Taxes, Ordinances, Excises, and reprehending the Authors of them to their faces, have countenanced them by their stupid silence, confirmed them by new Edicts, yea made it their principal business to burden our 3. whole Nations with perpetual, endless, illegal New Taxes, Excises, Imposts, Customs, Payments unheard of by our ancestors in any former ages (amounting to more thousands, millions in one year, than King Henry the 3. whom the Barons so much opposed and complained against for Exactions, levied upon his Subjects by way of Tax or Ayds, in all his 51 years reign:) yea to null the Great Charter itself, with all our fundamental Laws, Liberties, and the Privileges, Essence of Parliaments themselves, by secluding, disabling what members they please from sitting, by depriving the people of their Votes, freedom in electing Members, both in ancient Boroughs and Counties; by subjecting them to new imprisonments, forfeiteres of Estate, life, and trials by Marshal Law in sundry particulars, against this Charter, instead of easing them of their long-continued, illegal Taxes, Excises, Imposts, Imprisonments, Confinements, &c. confirming their former Liberties, Franchises, Properties, Parliamentary privileges, punishing the manifold high violations of them, with those ill Counselors, Projectors, who were the chief contrivers of these intolerable grievances, and resuming the antitient dissipated Lands, Revenues of the Crown, which should defray all public, ordinary expenses: yea, how instrumental some of them have been to promote the desperate designs, Practises, Conspiracies of the Pope and Jesuits themselves (now swarming amongst us, under sundry disguises) to ruin both our Kings, Parliaments, Church and State, is so experimentally visible, and well known to them all, that I hope the consideration thereof, compared with the forecited Presidents of our noble Ancestors and Parliamen • s, will strike such a confusion of face, such a compunction of heart into them for this their degeneracy, Apostasy, and breach of public trust, that they will now at last, to regain their own lost reputations, publicly renounce and abhor their former Exorbitances, and study to equalize & out act those their heroic predecesors, by regaining re-establishing our lost Great Charters, Laws, Properties, Liberties, Parliaments, privileges, Peerage, and make us once more a free, & thereby a happy and united Kingdom, Church, Nation, that so they may be deemed worthy to sit, vote in our future Parliaments.
It is storied of our renowned, victorious, warlike King Edward the 1. that in a Parliament held at Westminster in July 1297. he ascended upon a wooden scaffold before the great hall there, with his Son Prince Edward, the Archbishop of Canterbury, and Earl of Warwick, and there before all the people standing by; erumpentibus lach ymis veniam de commissis humiliter postulavit; dicens, se minus been & tranquilliter quam Regem deceret ipsos rexisse, portiunculas facultatum suarum, quas sibi dederaut, seu quas ministri ejus ipso inscio extorserant, ideo acceptasse, ut in • ur • osos hostium conatus, sitientium sanguinem Anglicanum, sumpta Rei publicae particula massa quietius possidendo, potentius expugnaret. Et addens, ecce expositurus meipsum discrimini propter vos, peto si rediero, suscipiatis me velut in presentia habetis, & ABLATA OMNIA REDDAM VOBIS, &c. If our late or present all-swaying Governors, Officers, Swordmen, will now make but the self same ingenuous acknowledgement as he, before all the people, that they have not governed them so well and peaceably as they should have done, and became them to do; that they and their Officers have much oppressed, extorted from them, not small but great sums of Money, by undue and exorbitant means against their wills, though with a public intention, to conquer those Enemies more effectually who thirsted after English blood, for whose safety they are still ready to adventure their lives: That they have sought their own wealth, advantage, honor, preferment, more than the public or people's welfare; & thereupon shall with weeping eyes humbly beg pardon of the whole Nation, and those particular persons they have any ways ruined or oppressed, and promise them full reparation of their injuries, and what ever they have unjustly taken from them, as this noble King Edw. did, and confirm and enlarge all their Great Charters, Laws, Liberties, as fully as freely as he then did, upon his Nobles importunity, they may then expect that reciprocal Love and dutiful respect to them, as the Archbishop with the people then promised to King Edward and his Son, with stretched out hands, and be deemed worthy to sit and vote in Parliament, notwithstanding their former miscarriages exorbitant arbitrary Ordinances and Provisions, of which if they repent not, I fear in conclusion what Matthew Westminster records of the Barons provisions at Oxford. Louis and London, will be recorded of them, to Posterity; Haec de provisionibus imo DE PRODITIONIBUS Oxford, Lewens. & Londini, dicta sufficiant, & quae variis aequitatis, & justitiae fictionibus dealbatae, intus autem plenae Versutiae Provisores suos pessime prodiderunt , which some of our late swaying republican Legislators have already found true by sad experience.
Fourthly, our Nobles are persons of greater Estates, Families, Fortunes than others, contribute most to all public Taxes, charges, and have more to keep and lose than other ordinary Commoners; and therefore in respect of themselves, their families, kindred, tenants, reretainers, allies, have greater interest in the Commonwealth and State affairs than they: We see by Common experience in all kingdoms, Nations, and our own Realm, that men's great estates innoble, and enable them to bear public Titles, Places of Honor, Dignity, Trust, Power, as to be Lord's, Knights, Esq. Privy Counselors, Justices, Sherifs, Mayors, Aldermen, and the like, which persons of mean fortunes, unable to support these Dignities, Offices, places of trust and expense likewise, are uncapable or unable to bear or manage: Wherefore our Ancestors thought it meet, just, equal that they should have this privilege among others above ordinary Commoners, to be present in all our Parliaments by Patent and Tenure only, and that of right ex debito justitiae ; not by election, as Knights, Citizens, and Burgesses are, being persons of meaner, estate, quality; and present in Parliament only, in the right of others who elect them, not in their own rights, as the Lord's are: whose estates anciently were, and still are far more worth, yea their public payment greater, than many whole Burroughs put together; and their families, retainers, followers, far more in number. And so their engagements to maintain the Laws, Liberties, properties of the Subject, far greater than inferior men's. Upon which ground all Barons and Peers of the Realm, in cases of debt and executions are free from arrests of their bodres, because by reason of their estates, and Dignities the Law intends, they have lands and assets to satisfy all their debts.
Fifthly, It is one principal property of Members of Parliament to be constant, stout, inflexible, and not to be bowed or turned from the right, the public good, or liberties, by fear, favor, promises, rewards. Now Peers of noble birth; education, and more generous heroic spirits than the vulgar sort of men, are not so apt to be over-awed with regal threats, terrified with menaces, tempted with honors, preferments, wealth, (which they already enjoy in a higher proportion than others) nor seduced with rewards and private ends from the common good and interest (wherein their honor, wealth, safety are embarked;) as ordinary Commoners, and men of meaner rank and fortunes are, which experience of former ages, and this present manifests. Therefore it was thought just and reasonable by our Ancestors, that the Nobles in this regard should sit in all our Parliaments in their own rights, without the people's election▪ and to leave the people to elect such other persons to represent, assent and vote for them in Parliament, in whom they most confided.
Sixthly, our Peers in Parliament ( though they there serve for the good of the whole Kingdom, which hath always trusted to them, in matters of Counsel, Judicature, and making Laws ) yet they represent no persons but themselves only, or their families, Tenants, Friends, and Allies which depend upon them, and bear their own expenses ; which are so great and chargeable, that the Abbot of St. James without Northampton, in the Parliament of 12 E. 2. and the Abbot of Leicester in the the 26 of E. 3. being summoned to Parliament, petitioned and procured themselves and their successors to be exemped from any future summons to, and attendance in the Lord's House, as Barons of the Realm, both because they held no lands of the King by Barony, but only in frank almoign, and their Predecessors had not formerly or usually been summoned to Parliaments, sed vicibus interpolatis only; And likewise, because it would tend to the great grievance and loss of them and their houses, and much impoverish them, by reason of the great expense it would bring upon them: One Peer, and his retinue expending more every Parliament than the wages of 40 or 50 Knights and Burgesses amount to. Wherefore there is no shadow of reason why the people should elect them, since they do not represent them, nor pay them wages, as they do to their Knights, Citizens, Burgesses, who serve for, and represent them. Wherefore their Levelling Oppugners may as well argue, That our Nobles ought to be elected by the people to their Honors, Lands, Estates which descend unto them from their Ancestors, not from the common people, as that they ought to sir in Parliament by the people's election; only to represent themselves in their own right, not the people. And that the Knights of the Shire ought to be elected to their dignity of Knighthood (which the King only confers on them) or to their Lands and Freeholds, which they enjoy in their own right, because they are elected by the Free-holders to sit in Parliament in their right who elected them, nor their own alone, which Barons do not.
7ly. On these grounds the suppressing, debasing, captivity or slaughter of the Princes, Lord's, and Nobles of a kingdom or Nation, is by God himself defined to be, an immediate forerunner, concomitant, cause of the Kingdoms, Nations ruin, and slavery, and a matter of great lamentation. Ezech. 19.1.14. c. 17.12. Lam. 1.6. c. 2.2. c. 5.12. Prov. 19.10. c. 30.21.22. Eccl. 10.5, 7. Isaiah. 3.4. &c. c. 34.11, 12, 13. c. 40.23. c. 43.28. Jer. 4.9. c. 27.20. c. 29. c. 25.18, 19. c. 50.35.41, 51, 55. c. 52.16. Hos. 7.16. Amos 2.15. c. 2.2, 3. 2 Kings 24.14. Mich. 3.7. 2 Chron. 24.23. Jer. 24.8, 9. And the continuing of Kings, Princes and Nobles, in honor and power in any kingdom and nation, are reputed and resolved by God to be the greatest honor, happiness, defense, safety and preservation of that kingdom and people. Jer. 17.24, 25. c. 22.4 Eccles. 10.17. Jer. 30.21. Psal. 68.27, 28. Prov▪ 8.15, 16. Isaiah 32.1. 1. Chron. 23.2. &c. c. 28.1. &c. c. 29.24, 25. Gen. 17.6.16. c. 35.11. 2 Sam. 11, 12. 1 Chron. 14.2. c. 28.4, 5. &c. 2 Chron. 2.11. c. 9.8. 1 Kings 11.32, 36. 2 Chron. 21.6, 7. 2 King. 8.18, 19. 1 Kings 15, 45. 2 Chron. 23.3.11.20, 21. c. 9.26.27. Numb. 24.7. Ezech. 37, 22, 29. Mich. 2.13. c. 4.8. Therefore they cannot be rejected suppressed by us now, without apparent danger, ruin and desolation to our kingdom, whatever frantic Levellers and others fancy to the contrary, who would be more than Kings and Lord's themselves over the Nation, could they once suppress both King and Lord's, as they design and endeavor.
By all which premises it is most apparent, That our Lord's and Barons sitting, voting in Parliament, (who if you take them poll by poll, have in all ages been more able Parliament-men, States-men in all respects, than the Commons, though chosen by the people, who always make not choice of the best and wisest men, as experience manifests) is not only just, lawful in respect of Right and Title, but originally instituted upon such grounds of Reason, Justice, Equity, Policy, as no rational understanding man can dislike or contradict, but must subscribe to, as necessary and convenient; and so still to be continued, supported in this their Right and Honor, to moderate the Excesses, Encroachments both of King and Commons one upon the other, and keep both of them within their just and ancient bounds, for the kingdoms peace and safety. The rather, for that the very Act made this Parliament for the preventing of inconveniences happening through the long intermission of Parliaments, not only enacts, and requires, ALL the Lord's and Barons of this Realm, to meet and sit in every Parliament, under a penalty; but likewise prescribes an Oath to the Lord Keeper and Commissioners of the Great Seal under severe penalties to send forth Writs of Summons to Parl. TO THEM ALL, and in their default, enables and enjoins the Peers of the Realm, or any twelve or more of them, to issue forth Writs of Summons to Parliament under the Great Seal of England, for the electing of Knights, Citizens and Burgesses : which Act will be merely void and nugatory, if their Votes and Right to sit in Parliament be denied, or the House of Peers reduced to the House of Commons, which this very Statute doth distinguish.
Now whereas our whimsical Lilburnists and Levellers object; that the Lord's have no right to sit or vote in our Parliaments, because they are not elected as Knights and Burgesses by the people, under which Notion alone, when thus elected, they will admit them a place and vote in the Commons house, but not otherwise. I must inform these Ignoramusses, that by the Laws, Statutes of our Realm, and the custom, resolution of our Parliaments, the Earls, Lord's and Barons of the Realm, are altogether uncapable of being elected Knights or Burgesses to serve in Parliament, and their elections as such; merely void and null in Law to all intents. This is most apparent, 1. By the very words of the writs of Summons to the Lord's: whereby they are summoned Nobiscum & cum caeteris Praelatis, Magnatibus et Proceribus dicti Regni nostri, colloquium habere & tractare &c. vestrumque consilium impensuri, &c. not to treat, confer, and consult with the Knights, Citizens and Burgesses. 2. By the express words of the Writs for the electing of Knights, Citizens and Burgesses, which have the same clause; and then enjoin the Sherifs to cause to be elected and returned, duos Milites, magis ido • eos & discretos Comitatus praedicti, & de qualibet Civitate duos Cives, & de quolibet Burgo duos Burgenses de discretioribus & magis sufficientibus, &c. ad faciendum et consentiendum hiis, quae tunc, &c. Which disables them to elect any Lord's or Barons; being no such Knights, Citizens or Burgesses as the writ enjoins them to elect and return. 3. By all the Statutes for electing Knights, Citizens and Burgesses recorded in Rastall, Tit. Parliament ; the Lord's being not within their words or intention. 4. By the Great Charter of King John, and express Statutes of 5 R. 2. Stat. 2. c. 4.31 H. 8. c. 10. & Rot. Par. n. 10. which disable them to sit amongst the Commons, but only in the Lord's house among their Peers. 5. By the very words of the Patents of their Creation, which authorize and prescribe all Dukes, Earls, Viconts, Barons in direct terms, Quod in omnibus tenerentur, tractentur et reputentur ut Duces, Comites, Barones, & quod haeredes sui masculi et eorum quilibet, habeat, teneat, & possideat sedem, locum et vocem in Parliamentis, publilicis Comitiis et Consiliis nostris, Haeredum et Successorum nostrorum infra Regnum nostrum Angliae, inter alios Duces, Comites et Barones (not amongst the Knights, Citizens and Burgesses,) ut Duces, Comites et Barones Parliamentorum, Publicorum Comitiorum et Consiliorum; not as Knights, Citizens or Burgesses. 6. By Sir Edward Cooks 4 Institutes, p. 46, 47. and Mr. Seldens Titles of Honor, p. 736, 737. who resolve, That a Baron or Lord of Parliament, is not eligible to be a Knight, Citizen or Burgess of the House of Commons, as was resolved in the case of Thomas Camoyes, who was not only a Baronet, but also a Baron and Lord of Parliament. The Lord Camoyes being elected by the Freeholders of the County of Surrey for one of the Knights of the Shire to serve in Parliament for them, Anno 7 R. 2. thereupon the King by advice of Council, declared his election to be null and void in Law, and commanded a new election of some other fit person to be made in his place, by this memorable Writ, extant on record.
7ly, Both Houses of Parliament in their Remonstrance, of Nov. 2. 1642. declare and publish in print to all the World, This to be so clear and fundamental a privilege of Parliament, That no Member of either House of Parliament is to be taken away or detained from the service of the House whereof he is a Member, until such time as that House hath satisfaction concerning the cause, and the cause be heard in Parliament first, and dismissed from it, That the whole freedom of Parliament dependeth upon it, For who seeth not that by this means under false pretences of crimes and accusations, such or so many Members of both or either Houses of Parliament may be taken out of it at any time by any persons to serve a turn, and to make a MAJOR PART of whom they will at pleasure. So as the freedom of Parliament dependeth in a great part on this privilege : yea without it, the whole Body of the Parliament will be destroyed by depriving it of its Members by degrees, some at one time, and others at another time, as both Houses further remonstrate in their Declaration of October 23. 1642. Which, as it infallibly demonstrates, that the Lord's House or Members cannot be taken away, or taken from them against their wills, without the destruction, subversion of the whole Parliament, of which they are chief Members, the Judicial power of Parliaments residing principally in that House, if not wholly. So it likewise clearly resolves, that no Peer or Member of the Lord's House can be elected a Member of the Commons house: For if the election of the Freeholders, Citizens or Burgesses of any County, City or Borough of a Duke, Earl, Lord or Baron of the Realm to be a Knight, Citizen, or Burgess in Parliament should be valid in Law, to make them legal, actual Members of the Commons house, it would then lie in their powers to un-Peer, un-Lord and degrade any Nobleman, yea all the Earls, Peers, Lord's, Barons of the Realm and their Posterity at their pleasures, to reduce them and the whole House of Peers into the Commons inferior house, and so quite dissolve the Lord's House, in high affront, dishonor of the Lord's and their House, and of the Kings Sovereign royal Authority, the fountain of all Honor: and that without any legal trial, or Judgment by their Peers, or just cause of degradation on their parts, against the express words and meaning of Magna Charta, c. 29. And if any Lord's upon such Elections should so far degenerate, debase or degrade themselves, as to accept thereof, and ignobly sit and vote as Members of the Commons House ; both they and their posterity • for such an ignoble act meritoriously deserved, to be forever degraded from their Nobility, and secluded from all future sitting in the Lord's House as Peers, becoming thereby the very shame, scorn, scandal of Nobility, fit only to be ranked with the basest Peasants, to whom these Levellers would now equalize them. Yea, it would be now no less than willful perjury in any Freeholders, Citizens, Burgesses to elect them Knights or Burgesses, and in themselves to accept of such Elections when chosen; and in the whole House of Peers and Commons too, once to permit, allow, approve or connive at such elections; after their late Protestation, Vow, and Solemn League and Covenant, to maintain to their power, the Rights, Privileges of Parliament, and both Houses of Parliament ; whereof this is an unquestionable Right and Privilege; That no Member of the Lord's House should be elected a Knight, Citizen, Burgess, or brought down from thence to sit only as a Commoner, in the Commons House, so long as he continues a Peer or Member of the Lord's House; (a distinct House from, and superior to the Commons House in all ages, as its Title of the Lower House, and their standing always bare before the Lord's, with other evidences demonstrate) nor any Knight, Citizen or Burgess, a true real Member of the House of Peers, unless a Peer by birth or creation ; those who are called to it only by general or special Writs, not being formerly for life or inheritance Peers, Nobles, or holding by Barony of the King, being only Assistants to the Lord's, as the Judges and others usually are not Members having votes.
It is the opinion of Sir Edward Cook in his Institutes on Littleton, That if the King call any Layman to the Upper house of Parliament generally by his Writ (which he there recites) that this alone doth create him a Baron and Lord of Parliament in fee simple, without the word heirs, and ennoble both himself and his heirs after him, so as to make them hereditary Barons. And this is the received opinion of most Grandees of the Law, relying only upon his bare Ipse dixit, though sometimes mistaken in his Judgment, and frequently in his Records and Presidents whereon he grounds his Opinion; although he cites no president nor record at all to make good his Assertion in this case. But under the favor of this Great Oracle of Law, I conceive this Opinion of his to be no Law at all, but a mere mistake, for these ensuing reasons.
1. Because there is not one word or syllable in this general Writ of Summons, that gives him either the Name, Title, Honor or Dignity of a Lord or Baron of the Realm: Therefore it cannot in Law or reason create him such a one. If he were a Knight, an Esquire, a Master, or Gentleman, or Judge, when the Writ was directed to him, it gives him only that Title, and summons him only by it: without styling him a Lord, Baron, Earl, Viscount or Peer of the Realm at all: Therefore it cannot ennoble nor create him one; much less ennoble his posterity and give him an hereditary Barony without the word heirs, since the Writ is only personal, directed to himself alone.
2. Because the Kings end and intention in summoning him to Parliament by this Writ is not to ennoble and create him a Lord, Peer, or Baron, much less to ennoble his Posterity after him, but only to consult and treat with him, and the Prelates, Lord's, and Nobles of the Realm, concerning the affairs there propounded: As this clause of the Writ demonstrates (which only must ennoble him and his heirs, if any) to come to the Parliament at such a day and place, that so the King may VOBISCUM with him (not his heirs) & cum Praelatis, Magnatibus, & Proceribus dicti regni nostri colloqu • um habere & tractatum : Which word, VOBISCUM, being distinguished from cum Praelatis, Magnatibus & Proceribus Regni, cannot possibly create him, a Lord or Baron, no more than a Prelate of the Realm ; the rather because the word Baro, is not in the Writ. Neither can the following clause create him one; Viz. dictis die & loco personaliter intersitis Nobiscum, & cum Praelatis, Magnatibus & Baronibus supradictis, super dictis Negotiis tractaturis, vestrumque Consilium impensuris : because it neither gives him the name nor style of a Lord or Nobleman, much less of a Baron, no more than of a Prelate: and summons him, not to be a Lord, Earl, Prelate or Baron of the Realm, but to be personally present with them (which he may be, though a private person, and no Lord) and to treat and give his advice with them concerning the businesses there propounded, the only end for which he is summoned; not to be their fellow Peer, Lord or Baron. So that it is against all sense and reason to aver, that such a general Writ as this can create himself, much less his Posterity Lord's or Barons of the Realm in perpetuity. It is a rule in Law and oft resolved, That the Kings grant shall not inure to two intents, nor pass or give two things at once, especially when one of them only is expressed, the other not: Therefore this writ of the King shall not-do it, to create the party summoned a Baron merely by implication, which is not expressed: and to summon him to confer, treat and give his advice in Parliament, which is the only thing intended and clearly expressed.
3ly, The Writ summons him only to that particular Parliament then to be held at one certain day and place ; not to any other, much less to all future Parliaments to be held: Therefore it cannot create him and his heirs hereditary Barons and Members of the Lord's House, no more than the Writ for electing Knights, Citizens and Burgesses for that particular Parliament, makes them and their posterity, Knights, Citizens and Burgesses of Parliament for perpetuity: It being both contrary to the words and intention of the Writ, to make him, much less his heirs, Members of all succeeding Parliaments, to which they must still be summoned by New Writs.
4ly. No Lord or Baron is or can be legally created, but of some particular place, Town, City, or the like, whereof he is styled Earl, Lord, or Baron: But the general writ of summons gives him no such particular style or title of dignity; confined to such a certain place. Therefore it cannot create him either a Lord or Baron, or if it doth it must be sine titulo, which were absurd.
5ly. No Duke, Earl, when created Viscount, Lord, or Baron, is or can be created a Peer of the Realm by the Kings Letters Patents for life, in tail, or see simple, without express words in the Patent creating him such a one for life, or him, and the heirs males of his body, or his heirs in general, Dukes, Marquesses, Viscounts, Earls, Lord's or Barons of such a particular place ; as all their Patents (whereof you have sundry Presidents in Mr. Seldens Titles of honor, lib. 2. ch. 5. throughout) and our books of Heraldry plentifully manifest; And in all late Patents of creation since 20 H. 8. of any Dukes, Marquesses, Earls, Viscounts, or Barons, there is a special clause inserted, enabling them and their heirs males, and every of them, to have hold and possess a seat and place in the Parliam. of us, our heirs and Successors, within the Realm of England, among other Dukes, Marquesses, Earls, Viscounts, Lord's and Barons of the Realm, as a Duke, Marquess, Earl, Viscount, Lord, or Baron, as Mr. Selden and their Patents inform us, and I have formerly touched p. 49. If then the king by his Letters Patents cannot create men Nobles and Peers of Parliament for life, in tail, or see simple, without these special and particular clauses; then by the self same reason he cannot create them such by his writ, unless it hath such special words and clauses in it, and not by the general writ of summons forementioned, wherein there is not one clause or syllable tending to such a particular, personal, or hereditary creation. The rather because Sir Edward Cook himself confesseth, that the Creation by Letters Patents is the surer, though by writ be the antienter way; for he and his posterity may sufficiently be created and made Noble by Letters Patents, though he to whom they were first made never sat in Parliament. Whereas this writ hath no operation or effect to ennoble him or his posterity, unless and until he actually sit in Parliament; for if he die before he sit, or sit not at all, neither he nor his issue are Noble.
This distinction and concession of his contradicts his former opinion, That the Writ itself doth not ennoble the person and his heirs ; for if it did, then he and they should be ennobled by it, though he died before he • a • e in Parliament, because they are thus ennobled by Letters Patents which create them Nobles or Peers, and make them actually such, though they never sit in Parliament.
7ly. Sir Edward Cook in his 4 Institutes, p. 44, 45. thus resolves. If the King by his Writ calleth any Knight or Esquire to be a Lord of the Parliament, he cannot refuse to serve the King there in communi illo confilio, for the good of his Country. But if the King had called an Abbot, Peer, or other regular Prelate by Writ to the Parliament to the Common Council of the Realm, if he held not of the King per Baroniam, he might refuse to sit in Parliament, because quoad secularia, he was mortuus in lege, and therefore not capable to have a voice or place in Parliament unless he did hold per Baroniam, and were to that Common Council called by Writ, which made him capable. And though such a Prelate regular had been often called by Writ, and had de facto, had place and voice in Parliament; yet if in rei veritate he hold not per Baroniam, HE OUGHT TO BE DISCHARGED OF THAT SERVICE, AND TO SIT NO MORE. For that the Abby of Leicester was founded by Robert Fitz Robert Earl of Leicester ( albeit the Patronage came to the Crown by the forfeiture of Simon de Mountford Earl of Leicester) yet being of a Subjects foundation, it could not be holden per Baroniam, therefore the Abbot had no capacity to be called to the Parliament, and thereupon the King did grant, Quod idem Abbas & successores sui de veniendo ad Parliamentum, & Concilia nostra, vel haeredum nostrorum quie • i sint, & exonerati in perpetuum. But all these Cases abovesaid, and others that might be remembered touching this point, as little Rivers do flow from the fountain of Modus tenendi Parliamentum, where it is said, Ad Parliamentum summoneri & venire debent ration tenurae suae omnes & singuli Archiepiscopi, Episcopy, Abbates, & Barones, Priores & alii Majores Cleri, qui tenent PER COMITATUM VEL BARONIAM, ration hujusmodi tenurae, & nulli minores nisi eorum praesentia necessaria & utilis reputetur. To which purpose he likewise cites the Act of Parliament of 10 H. 2. called the Assize of Clarindon, and the Great Charter of King John in the 17 year of his reign here forecited, p. 21, 30, 31. For Modus tenendi Parliamentum (here so much magnified) I have already p. 20 sufficiently discovered it to be a late forgery, and imposture out of the very Treatise itself, by undeniable proofs, which I wonder Sir Ed. Cook, Mr. Agar, and other pretended judicious Antiquaries observed nor, being so obvious; yet though it be an imposture and erroneous in other things, I shall grant it true in this particular here cited. As to the point in controversy; had Sir Ed. Cook here thus distinguished in the case of Laymen, Knights, Esquires, as he doth in case of Abbots, Priors, and Religious persons, that if the King had by his Writ called any Laymen, Knight ot Esquire to the Lord's House of Parliament by his general Writ, who held of him in fee or fee tail, per Baroniam, and was a Baron by tenure, that this had ennobled him and his posterity as Barons, & he could not refuse to serve the King as a Baron in this Common Council for the good of his Country; his opinion might have passed for good Law: For such who had lands in fee, or fee tail of the King by an entire Barony, being Barons and Peers of the Realm by their very tenures, ought of right, by the express words of the Statute of Clarindon, the Great Charter of King John, and by the Common Law and Custom of the Realm, to be summoned as Barons by the Kings special writs directed to them, to all Parliaments and great Councils of the Realm, by virtue of their Tenures, as well as Bishops, Abbots, Peers, and other regular Prelates who held by Barony; yet the writ in this case doth not make them and their heirs Barons by writ, nor give them a right to sit and vote in Parliament; but only declare them and their heirs to be Barons, and to sit there as Barons by their Tenure, not by virtue of the Writ itself. But if the King by this general Writ summon any Layman, Knight or Esquire to the Lord's House, who holds not by Barony, this doth no more make him a Lord or Baron in perpetuity to him and his heirs, nor no more oblige him or his heirs to sit there than Abbots, but that they may refuse to serve in Parliam▪ if he were no Peer before, being not obliged by any Law to sit and serve therein as a Baron or Member of the House of Peers, by the Writ alone, which doth not bind an Abbot, Prior, or regular Prelate, or ennoble him and his Successors to be Peers and Barons of the Realm, though they hold only by Frankalmoign, not by Barony: the Tenure By Barony being that alone which obligeth both of them to sit and serve in Parliament, unless they be created Dukes, Earls, Viscounts, Lord's, Peers, or Barons by Patent, or else by a special Wrir, wherein the estate and dignity of a Baron is both created and limited, as in the Writ that created Sir Henry de Bromflet Baron of Vescey, in the 27 year of King Henry the 6 where after the Nullatenus omittati • , this Cl • se is inserted, Volumus enim vos & haeredes vestros ma • culos de corpore vestro legitime exeuntes BARONES DE UESCY EXISTERE, Teste, &c. If a Layman who holds not by Barony be created a Duke, Earl, Baron, or other Peer of the Realm for life, in tail, or in fee by Letters Patents, or an Abbot or Prior who holds not by Barony, and his Successors be created Lord's of Parliament, by a special Patent of the King, as Richard Banham Abbot of Tavestoke, and his Successors were b • King Hen. the 8. to whom the King gran • ed by special words, Ut eorum quilibet qui pro tempore fuerit Abb • s, sit & erit unus de Spiritual • bus & religiosis DOMINIS PARLIAMENTI NOSTRI haeredum & successorum nostrorum, gaudendo honor • Privilegio, & libertaribus ejusdem: This obligeth them to appear and serve in Parliament upon every Writ of Summons, and they their heirs males and Successors cannot refuse to serve, or voluntarily absent themselves without cause or license, under pain of being fined, and otherwise punished for their contempt, because bound thereto by their voluntary acceptance of such a special Patent and dignity. But if they be summoned only by a general Writ, against their wills being no Lord's of Parl. by special Patent or Writ before, this doth neither make the one nor other Barons, nor enn • ble their heirs males, or successors, nor oblige them to serne, nor subject them to any fine for contempt; for then the King by his Writ might summon all the Knights, Esquires, Gentlemen, and any other Commoner, Freeman, Lawyer, Clergy man of the Realm to the Lord's House, as a Member at his pleasure, and fine them for a contempt in not appearing, and thereby increase that House in infinitum, and make it a mungril House of all sorts of degrees and professions of men, instead of a • House of Lord's, to its utter subversion, against the fundamental constitution and privilege of that House; Therefore such Writs of summons must be void and null in Law, as well as the Patent to Abbot Banham (as Sir Ed. Cook asserts it) for that he was neither Baro, nor held per Baroniam : Now whereas he asserts, That Knights and Esquires, who hold not by Barony, cannot refuse when summoned by Writ to serve the King in Parliament; but yet Abbots and other regular Prelates that hold not by Barony may, because they are dead in Law, as to secular affairs, and therefore not capable to have voice in Parliament, unless they hold by Barony, and were called by Writ. This reason of the difference is most absurd and unreasonable. For 1. They are both Subjects to the king alike, and so both equally obliged to serve and counsel him in Parliament. 2ly. If their tenures by Barony could make them capable to have place and voice in Parliament, though dead in Law, quoad secularia, then much more the kings and the kingdoms need of their presence, counsel and advice in Parliament, touching the weighty affairs concerning himself, and the defense and preservation of the Realm and Church of England, when specially summoned by his writ to Parliament, 3ly. Though they were dead in some sense only, in respect of their natural capacities to the world; yet in their politick capacities they were not so, but secular, still to sue, purchase, advise, &c. as well as Laymen, in the right of their Houses. 4ly. Parliaments being always summoned as well to advise of Ecclesiastical things, touching the Church, as of temporal things concerning the Realm of England ; their being dead to the world, quoad secularia, could no more enable them to refuse to serve in Parliament, then Laymen, quoad Ecclesiastica negotia therein treated of, which concerned the Church and Laymen (according to the doctrine in Popish times) might as well refuse to serve in Parliament, when summoned, because they were no Ecclesiastical or religious persons, who were properly to consult of the affairs of the Church of England ; as religious persons be exempted from, and refuse to serve therein, because dead to the world, quoad secularia negotia, concerning the King and Realm of England there debated and consulted of. 4ly. The true and only ground then why such Abbots, Priors, and all other Clergy men, who held not by Barony might refuse to serve in the Lord's House of Parliament, when summoned by Writ, was this, that they held not of the King by Barony; and upon this ground alone, the Abbot of St. James without Northampton summoned to Parliament by Writ, Anno 12 Ed. 2. upon his Proctors appearance and Petitions for him in Parliament (recorded at large by Mr. Selden, out of the Legerbook of the Abby worthy perusal, being most full in point was discharged from his attendance, & his name struck out of the Roll and Register of the Chancery by the Chancellor and his Council, as not one of the list of those who ought to be summoned, for this very reason, because NON TE NET PER BARONIAM, nec de Rege in capite, sed tantum in puram & perpetuam Eleemosynam & nec ipse Abbas, nec Predecessores sui, unquam in Cancellaria irrotulari fuerunt (except only in 49 H. 3. m. 10. Schedula, voluntary) nec ad Parliamentum citati hucusque. UNDE PETIT (& habuit) remedium. And upon the self same reason the Abbot of Leicester and his successors were by special Patent in 26 E. 3. de veniendo ad Parliam. & Consilia nostra, et haered • m nostrorum de caetero quieti sint et exempti in perpetuum, (hough this Abbots predecessors had formerly been summoned to and sat in Parliaments interpolatis vicibus, but no • continue ; because idem Abbas aliquas terras sent • ementa de Nobis per Baroniam, seis a • o modo non tenet per quod ad Parliamenta seu Consilia nostra venire teneatur. The King reciting this as the only ground of his exemption; and thereupon Nolentes Abbot • m indebite sic vexari; granted him and his successors this Patent of Exemption; upon which his name was cancelled in the Clause Roll of 25 E. 3. part 1. m. 5. dorso; and this written in the margin against it. Abbas Leicestriae cancellatur, quia habet cartam Regis quod non compellatur venire ad Parliamentum. And that of Dors. Claus. 11 E. 3. par. 2. m. 11. & 13 E. 3. par. 2. m. 28. & 1. cited by Mr. Selden & Sir Edw. Coke in his Margin; mentioned in a Bill in Parliament; Que toutes les religioses que teignont per Barony sayent tenus de venier au Parliament ; is also direct i • point; That those who hold not by Barony, are not bound to serve in Parl. be they Religious persons, or Lay persons, who are not Peers or Lord's of Parliament, upon general writs of summons; such Summons of them being AN UNDUE VEXATION OF THEM, as King Edward stiles it in his Patent, (unless they voluntarily appear upon such a Summons, as this Patent informs us those who were summoned in 49 H. 3. all did.) This reason therefore exempting all Abbots, Peers, and religious persons from service and attendance in the Lord's House in Parliaments, though summoned thereto by writ, must necessarily exempt all Knights and Laymen from it, there being the self same ground, justice, equity for it in both, yea the selfsame unjustice, vexation, mischief to both; and by consequence the selfsame Law. And if this be Law, as these Presidents, Judgments, Records expressly resolve it to be beyond contradiction; Then it inevitably follows, that the General writ of Summons to Parliament alone, doth neither create the persons summoned to it, nor their heirs or successors Barons, Lord's or Peers of the Realm, unless they hold by Barony, no although they sit once or twice in Parliaments by virtue of them, or interpolatis vicibus but not continue as the Abbots of Leicester did, for then they could not allege or plead their not holding Lands of the King in Barony, or any other tenure binding them to sit and serve in Parliament, in bar of the Writs of Summons directed to them, because those writs themselves did ennoble and make them, their posterity & successors Peers of Parliament, though they held no Lands by Barony. 8ly, it is undeniable by sundry presidents, that the Kings general writs of Summons create none Lord's or Peers of Parliament for life or Inheritance, if they hold not by Barony; which I shall evidence by these presidents in point, To the Parliament of 49 H. 3. there were no less than 64 Abbots, 36 Priors, the Master of the Temple, and 5. Deans of Cathedral Churches, namely of York, Exeter, Salisbury, Lincoln, Bath and Wells, summoned by general writs, as the Bishops, Earls, Barons, and other Nobles were; yet this did not make themselves nor their Successors Barons or Peers of Parliament; for neither of these Deans nor their successors were ever afterwards summoned to Parliament, as they would and must have been, had this writ made them or their successors Barons and Lord's: nor any of the Abbots or Priors, but such only who held by Barony, who were constantly summoned, but those who then held not by Barony, or Militare servitium, if casually summoned to one Parliament, were yet upon their complaints thereof, omitted and discharged in the next, as the Writs of Summons themselves attest, and Mr. Selden manifests out of them. Therefore the Writs did neither create them Barons for life, much less their successors after them; for then they should still have of right been summoned to succeeding Parliaments, and ought not to have been discharged. In the 18 of Ed. 2. A Writ of Summons was sent by the King, Magistro Gilberto de Middleton Archidiacono Northampton, Officiali Curiae Cantuariensis; & Magistro Roberto de Sancto Albano, Decano de Arcubus London. But no writ was ever directed to them afterwards, but in this one Parliament only; therefore it made them not Lord's and Barons for life, inheritance or succession. The like is evident by the forecited presidents of the Abbots of St. James & Leicester and other Priors. So the Guardians of the Spiritualties of Bishops during the vacancy, and their Vicars Generals during their absence beyond the Seas, have been frequently summoned to Parliaments by writs: But being summoned only as substitutes, or in the right of the Bishops or Bishoprics, it made them no Barons or Peers, neither were they ever esteemed such heretofore, or at this day, as Mr. Selden informs us. And as it was thus amongst Abbots, Priors, Deans, and other Clergymen, that these writs made them not Barons for life, nor yet in succession: so by the selfsame Law and Reason they made no Laics who held not by Barony such for life or inheritance. Whence we find many such in the summons to Parliament of King Henry 3. Ed. 1, 2, 3. R. 2. H. 4, 5, 6. who were summoned once, twice or thrice, but never afterwards, nor any of their name or posterity; of which no other solid reason can be given, but that these general writs of summons made them neither Barons for life nor inheritance, no more than they did Abbots, Priors or Clergymen. For example I find Edmond Barstaff, Robert de Crendon, H. Huse, Ader de Estlye, Serton de Hansladorn, and sundry others summoned by Writ to Parliament in 33 E. 1. Peter Corbet, Andrew de Hamloe, Henry Tregor Maurice de Buen, Roger Banuent, and some others in 13 E. 2. Simon Ward, Henry Dandle, William Blunt, in 4 E. 3. Roger de Claudes, Ralph de Bevil, William de Kineston in 14 E. 3. Ralph Bulmer, Thomas Bugworth, in 22 E. 3. William de Ridehal in 27 E. 3. Robert de Colvil, John de Kirton, John de Wodhurst, John Northwood, John de Strivelin, in the Parliament summons of 37. and one of them again of 38 E. 3. Henry Quarts, in 6 H. 4. Henry Cuart, in 7 H. 4. William Cheyney Chief Justice in 4. & 6 H. 6. But neither of their persons nor any of their posterity, were ever after summoned that I find to any other Parliaments, as no doubt they would have been, had those their writs of summons made them Lord's and Barons. In the Clause Roll of 5 E. 3. m. 12. dorso, the King sent writs into Ireland to William de Burgh Earl of Ulster, James de Bot • ler Earl of Ormond, William de Bremigham Knight, and Walter de Burgh, strictly enjoining them with all speed to come over into England, Nobiscum tractaturi, vestrumque Consilium impensuri, concerning his intended Voyage in person into Ireland, and setting the peace and affairs thereof: and I read in the reign of King Henry 3. Edward the 1. 3. and other of our Kings, that the King of Scots and his Nobles were oft summoned by Writs to our English Parliaments concerning the affairs of Scotland : yet these writs made none of them Peers and Barons of our English Parliaments. From all which I may safely conclude, Sir Edward Cooks and others Opinions to be no Law, but a clear mistake; that a general writ of Summons doth, or can create any who hold not by Barony, Peers or Barons for life, much less in fee or fee-tail. Therefore such may be afterwards elected Knights or Burgesses of Parliament, and be Members of the Commons house, and refuse to sit or serve in the Lord's house upon summons without contempt or fine: but no Baron or Peer of the Realm may be thus chosen, or neglect his service in the Lord's house.
Finally, Mr. Cambden in his Britannia, p. 120, 122. & Apologia, p 11. and Mr. J. Selden in his Titles of Honor, part 2. chap. 5. Sect. 31. p. 708. to 718. assert, That as some Spiritual Barons, who were conceived to be Barons by writ as well as by tenure, though sometimes summoned to Parliament by writ, were wholly omitted at length, as not having of right Voice and Place with the rest, because they held not by Barony; So sundry of the Lesser Barons and Tenants in Capite holding only of the King as Vavasors by Knights service, and not by an entire Barony, were likewise excluded the Parliament. and not summoned thereunto by King John, Henry the 3. & Edw. the 1. being not great and honourary Barons, nor having estates sufficient to support that dignity ; and that (as Mr. Selden conceits by some Law made not long before the Great Charter of King John, procured by MAJORES BARONES; who foreseeing that their power and dignity might suffer much diminution, if the new tenants in chief, or Patentees of Escheated Baronies, and the rest that were decayed should have equality with them, and be indifferently Barons of the Kingdom every way as they were, procured a Law in some of the Parliaments that preceded the Great Charter of King John, by which themselves only should hereafter be properly styled (& summoned as BARONS, and the rest only Tenants in chief, or Knights, which Titles should be given them, as distinct names from Barons: which could not but much lesen the dignity and honor of the rest. And if so, then questionless such who hold not by an entire Barony, and are not Majores Barones by Patent or Inheritance now, cannot be created such by a mere general writ of summons; neither can the King by his general writ create or make them such against this ancient Law and usage ever since. And the Earls, Lord's and Great honorary Barons, who excluded all such from sitting in Parliament with them as Barons and their Peers then, may much more exclude and refuse to admit such into their house, or to sit with them if summoned now; because their dignity, honor, power, would suffer much diminution thereby; and the King might by writ at any time call so many to their House, as might overtop, over • ote, and alter their very Constitution as an House of Peers.
I shall close up this point of the Lord's sole right to sit in Parliament with one or two memorable presidents.
In the 7. year of King Edward 2. as Walsingham stories, in quindena Paschae per Regis brevia citatae sunt generaliter omnes Parliamentales personae pro Parliamento teuendo Londoniis: Sed multis Proceribus praetendentes impedimenti causas nihil h • c vice factum su • t : So Anno 1316. King Edward in the 9th year of his reign, celebravit Concilium apud Clarindon, sed Magnates noluerunt interesse. Whereupon nothing was there effected. The Lord's presence being held then so necessary, that by reason of the absence of divers of them upon some real or pretended impediments, though all legally summoned by the Kings writs, nothing was done or concluded by those who met, who held themselves no complete or legal Parliament without them. Whereas in the Parliament of 5 E. 2. some of the Judges and Assistants departing from the Lord's, and divers Knights, Citizens and Burgesses from the Commons house, without license, yet the Lord's continuing all together, and making Ordinances for regulating the Kings house, and Revenues, the Parliament still continued, and these special writs were sent to recall the Judges and Lord's Assistants▪
This, I hope, will suffice to convince all Levellers and Gainsayers, of the LORD'S undoubted ancient Hereditary just Right and Title, to sit, vote in all ENGLISH PARLIAMENTS, though not elected by the people.
SECTION II. Wherein the Lord's House sole Right of Judicature in Parliament, without the Commons, is fully cleared by Presidents, Histories, Records in all ages, and undeniable Reasons, and that both in Criminal, Civil, Ecclesiastical Causes of all sorts, as well in cases of Commoners, and Clergymen, as Temporal Peers, & persons of the highest degree, proper for Parliament.
IT is the General confession, resolution, assertion both of Lawyers, Law-books, the Parliament and Statute of 31 H. 8. c. 10. and all who have written of our Parliaments; That the Parliament of England is the ancientest, honorablest, highest Court and Supremest Judicature in the Realm; to whose Judicature all other Courts, Persons, Subjects of the Realm are subject & accountable for all Injuries, Oppressions, Crimes, Wrongs, Corruptions, Errors, Abuses▪ Grievances, Misdemeanors, Treasons, Contempts, Frauds, false Judgments, and matters of public or private concernment not properly triable, remediable, or punishable in other inferior Courts of Justice, and that Court to whom all Appeals concerning Misproceedings, Errors, or Injustice in other Courts or places ought to be made, and from whose Injustice and Sentence there is no appeal, but only to another Parliament ; as in the case of General Councils (as Divines assert) there is no appeal but to another general Council in Ecclesiastical affairs concerning the Universal Church, or matters of Faith. This being an unquestionable Principle and Truth, the sole Question will be, in what House or Persons in Parliament this Supreme Judicatory, or judicial power resides ? Whether in the King alon • ? or Lord's alone? or King and Lord's jointly? or in the House of Commons alone? (never made a question • il now, by Lilburn and Overton ) or in the King and House of Peers, not separate from, but jointly with the Commons House? And for my part I conceive, it resides wholly and solely in the King and House of Lord's, not in the House of Commons; which hath no part nor share therein singly considered in itself, nor yet jointly with the King and Lord's, but only in some special cases and proceedings, as when and where the King and Lord's voluntarily require their concurrence, or where the judgment and proceedings in Parliament are by way of Bill or Act of Parliament; or when a judgment passed or confirmed by Bill or Act to which the Commons consent was requisite, is to be altered or reversed, but in no cases else, that I can find. To make this ou • beyond contradiction; it must be necessarily granted by all, and cannot be gainsaid or disproved by any, that this Supreme power of Judicature hath been vested in our Great Councils and Parliaments even from their beginning and original institution, it being the ancientest, as well as highest and honorablest of all other Courts: That it had this Sovereign Jurisdiction vested in and exercised by it, both under our British, Saxon, Danish and Norman Kings, I have elsewhere evidenced, and shall anon make good by undeniable presidents. Now the Great Parliamentary Councils under them, consisted only of the King, the Ecclesiastical and Temporal Lord's, Earls, Barons, Nobles, without any Commons House, or Knights of Shires, Citizens or Burgesses elected by the people; as I have already touched, and manifested more fully in other Treatises : yea the most, best Antiquaries and English Historians I have seen who Treat of our Parliaments (except that Gross Impostor who composed that ridiculous Treatise styled Modus tenend • Parliamentum, when there was never any Parliament held in any age in England or Ireland, in such manner as • e there relates & prescribes, with Sir Edward Cook, and some other injudicious Antiq • aries seduced by this pretended, forged Antiquity) have not presumed to derive the Antiquity of the Knights, Citizens, and Burgesses summons to, and si • ting in our Parliaments higher than the Parliament held under Henry the 1. at Salisbury, Anno Dom. 1116. the 16 year of his reign. To which Polydor Virgil, Hist. Angl. An. 1116. Judge Dodridge and others in the Antiquity of the Parliamen • s of England, p. 18, 19, 20, 40, 80, 86, 87. Holinshed in his Chronicle, vol. 3. p. 38, 39. John Speed in his History of Great Britain p. 438, 439. refer their Original, if not the beginning of Parliaments themselves. But under these learned men's correction (who produce no warrant from histories or records in that age for proof of what they affirm) I dare confidently assert, that there is nothing to be found in History or Record to warrant this their fancy; but many direct evidences against it, which I shall briefly clear, being very pertinent to the present controversy, and judicature of the Lord's House.
1. It is most clear, that to this Parliamentary Council held at Salisbury, Anno 16 H. 1. No Commons, Knights Citizens, elected by the people were called by this Kings Writs, as some of these Authors, with the Manuscript of Canterbury positively assert, and others of them seem to incline unto; but only the Lord's spiritual and temporal of the Realm, as Holinshed himself relates, whom Speed styleth the Estates both Spiritual and Temporal. This is evident by Eadmerus who then lived, and thus records the proceedings of that convention under this King, 13 Kal. Aprilis, factus est Conventus Episcoporum Abbatum, et Principum totius regni apud Serberiam, cogente eos illuc sanctione Regis • enrici: Which Rog. de Hoved. thus seconds, Comites et Barones totius. Angliae apud Salisberiam convenerunt ; who as Mat. Paris and Mat. Westminster, with them, relate, Jurarunt fidelitatem Willielmo filio suo. Simeon Dunelmensis •• iles it, Conventus Optimatum et Baronum totius Angliae , wherein jussu Regis omnes Comites et Barones cum Clero totius Regni, swore fealty to him and his Son, as the Chronicle of Brompton also relates: not any of our ancient Historians making mention of any Commons, Knights, Burgesses, but only of Bishops, Abbots, Earls, Lord's and Barons of the Realm there present at it.
In this Parliament, after the Earls, Barons, and Great men had done homage to William the Kings Son, and sworn allegiance to him; the Cause and complaint between Ralph Archbishop of Canterbury and Thurstan elected Archbishop of York, was there heard and debated, which had been agitated between them a whole year before. Thurstan being admonished by Ralph to make his subjection to the See of Canterbury, and to receive his consecration from him after the ecclesiastical and usual manner: Answered, That he would willingly receive his consecration from him, but he would by no means make that profession of subjection to the See of Canterbury, which he exacted, but only that which Pope Gregory, and after him Pope Honorius the 6. had ordained, who made this agreement between the two Archbishops of England, Ut neuter alteri subjectionis professionem faceret, nisi tantum ut qui prior ordinatus esset quamdiu viveret prior haberetur: quod proprium est servorum Dei, ut verahumilitate sibi invicem acclives sint, & nullus super alium primatus ambitionem exercere debet: Sicut Dominus noster Verae humilitatis praedicator & amator discipulos suos, de hac re litigants redarguens, dixit eis, Qui major est vestrum erit omnium minister; Nullus siquidem post beatum Augu •• inum • qui non tam Archiepiscopus quam Apostolus Anglorum dicendus est) Archiepiscoporum Cantuariensium primatum totius Angliae sibi vendicare praesumpsit, usque ad Theodorum Archipraesulem, cui propter singularem in Ecclesiastica Disciplina solertiam, omnes Angliae Episcopy subjici consenserunt, sicut Beda in Ecclesiastica Historia Angliae testator: Quamobrem Turstinus nullam aliam subjectionis professionem Cantuariensi Pontifici facere voluit, nisi quam beatus Papa Gregorius institui • : Ralph on the other side pleaded, the subjection of his predecessors made to his Predecessors; Rex autem Henricus, ubi adv • rtit Turstinum in sua stare pervicatia, aperte protestatus est, illum aut morem antecessorum suorum, tam in profession facienda, quam in aliis dignitatis Ecclesiae Cantuariensis, ex antiquo jure competentibus executurum, aut Episcopatu Eboracensi cum benedictione funditus cariturum. His auditis ill suo cordis consilio inpraemeditatus credens, renunciavit Pontificatui; spondens Regi & Archiepiscopo, se dum viveret illum non reclamaturum, nec aliquam calumniam inde moturum, qui cunque substitutus fuisset. But Thurstan afterwards repenting of his rashness, contrary to his agreement in Parliament, going to the Pope, against the Kings command, to the Council at Reims, was there consecrated Archbishop of York by Pope Calixtus himself; contrary to his promise to the Kings agent, and Canterburies, who there publicly protested against his consecration, without making any subjection to the See of Canterbury. Whereupon the King prohibited Thurstan to return into England, or any of his Dominions, swearing, that he should never return whiles he lived, unless he would make his subjection to the See of Canterbury : Which Oath he refused to violate at the Popes personal request to him, (though he then absolved him voluntarily from this Oath) saying, Quod dicit se quoniam Apostolicus est, me à fide quam pollicitus sum, absoluturum: Si contra eandem fidem Thurstinum Eboraci recepero, non videtur regiae honestati convenire hujusmodi absolutioni consentire. Quis enim fidem suam cuivis pol • c • ntii amplius crederetur, cum eam meo exemplo tam facile absolutione annihilari posse videret.
As in this famous Parliamentary Council of Salisbury, so in all precedent and subsequent Great Councils and Conventions during the whole reign of king H. 1. the Prelates, Earls, Barons, spiritual and temporal Lord's were only summoned as Members, not any Knights, Citizens, Burgesses, or Commons elected by the people, which I shall next make good.
In a Parliamentary Council in the 1. year of his reign Anno 1100. he was elected and crowned King of England, abolished ill Laws, confirmed King Edwards Laws, and the Great Charter of Liberties under his Seal, Communi Concilio Baronum regni: Archiepisco • is, Episcopis, Comiti • u • , Proceribus, Magnatibus et Optimatibus totius Regni Angliae, there subscribing to his Charter then granted, as witnesses ; See here, p. 58▪ 59. The same year, Majores natu Angliae et Magnates terrae congregavit Londonii , by whose advice h • married Mawde, daughter of the King of Scots, right heir to the crown of the Saxon line, and anointed and crowned her Queen : there being a great debate, whether she might lawfully marry, having worn a veil • n a Monaste • y whiles she was young? which was resolved in a Council at Lambeth, where Episcopy, Abbates, Nobiles quique, ac religiosi ordinis viri , were a • embled • o de • cide i • ; who upon debate resolved she might lawfully marry : as Eadmerus records at large.
The next year, Anno 1001. Duke Robert returning from the holy Land, and laying claim to the Crown of England as right heir and eldest Brother, thereupon King Henry, PRINCIPES suspectos habentes, ne à se instabili ut sit fide dissilirent, and they suspecting him, ne undique pace potitu, in se legibus efferatis desaeviret, actum ex consulto est, ut certitudo talis exinde fieret, quae utrin{que} quod verebatur excluderet. Sed ubi ad sponsionem fidei ventum est, TOTA REGNI NOBILITAS, (assembled in a Parliamentary Council) cum populi numerositate (who depended on their advice) Anselmum inter se & regem medium fecerunt, quanta ei vice sui manu in manum porrecta promitteret. Iustis et Sanctis Legibus se totum regnum quo • d viveret in cunctis administraturum. After which, when as upon the report of Duke Roberts arival, Statim MAJORES REGNI, quasi suae sponsionis immemores ad illum relicto Rege, semet transfer parabant. Whereupon Anselm AD UNATIS PRINCIPIBUS CUNCTIS, shown to them, and after that to the whole multitude of the Army who came about them, quam execrabiles Deo et omni bono homini forem, qui fidem quam Principi suo debebant quoquo modo • iolarent. Whereupon cuncti ilico spretâ vita non sequius eligerent morte procumbere, quam violata fide sua Regem seducere : After which, PRINCIPES utrinque fratrum non ferentes dissidium colloquium inierunt, pio & circumsp • cto consilio MUTWM ET GENERALE, and by the Mediation of the NOBLES on both sides an accord was made between the King and his Brother Robert, propter manifestum jus quod habuit ad regnum possidendum, that Robert should receive 3000 marks yearly from England, and that the longest liver of them should be heir to the other, if he died without issue male. Hoc autem PER 12 MAGNATES juratum fuit utrinque. Anno 1202. there fell out a difference between the King and Anselm, touching investitures of Bishops, Anselm refusing to consecrate any Bishop, Abbot or Clerk who received investitures from the King or the hand of any Layman, being against the Decree of the General Council of Rome : whereupon the King sent for him to his Court; where this business was at large debated
Not long after the same year, Anselm peremptorily refusing to consecrate those Bishops whom the King invested with a pastoral Staff and Ring, and some of them resigning them as unlawful, and publicly refusing to be consecrated by such an investiture from the king, to his great dishonor, and prejudice of his royal right and prerogative; the king thereupon repaired to Canterbury, where Anselm and he had a sharp contest; At last he requested An elm to go in person to Rome to procure the Pope to reverse his decree against investitures, ne ipse perdendo suorum jura Antecessorum, eis vilior fiat, who desired that this business might be deferred till Easter, ut audito Episcoporum Regnique Primatum Consilio, qui modo non assunt, respondeam hinc : Which being granted, Anselmus in Pascha Curiam venit, regni ingenuitatem de negotio praesens consuluit, COMMUNIS CONCILII Vocem unam accepit (so Eadmerus) Convenitur a Rege, & EPISCOPIS ET MAGNATIBUS (so Malmesbury relates it) ut ipse Romam dignatur proficisci, quod alii minus egerant sua praesentia suppleturus, who thereupon consented to go, NE CUCTORUM VOLUNTATI DEESSET. Mat. Paris, Matthew Westminster and others write, that he was then banished out of England for his obstinacy, Regis injusto judicio, and all his temporalties seised, which Eadmerus and others write, was not done nor executed till after the Popes Decree against the Right of investitures passed against the King and Anselms departure from Rome towards England ; when the King prohibited him to return into England, unless he would submit to do him homage, and consecrate Bishops by his investiture, as all our Historians accord.
Anno 1106. Duke Robert coming to his Brother King Henry the 1. into England to Northampton, to de • ire him to restore his Brotherly affection to him, whereof he had deprived him, but could not obtain it.
Anno 1107. The King and Anselm by the Popes mediation and others coming to an accord; Hereupon the King returning into England; advenatis ad Curiam ejus in Pascha Terrae Principibus, dilata est Ecclesiarum ordinatio quam Rex se facturum disposuerat, by reason of the Popes coming into France to the Council of Trecis : But afterwards in August, Factus est Conventus Episcoporum et Abbatum, pariter & Magnatum (or Procerum) Regni Londoni • s in Palati • 〈◊〉 ▪ where, per consilium Anselmi, & Procerum Regni, annuit Rex & statuit, this accord and Decree was made; ut ab eo tempore in reliquum, nunquam per donationem baculi Pastoralis, vel annuli quisquam de Episcopatu vel Abbatia per Regem, vel quamlibet L • icam personam investiretur in Anglia: Concedente etiam Archiepiscopo, ut nullus ad Praelationem electus pro homagio quod Regi faceret, consecratione suscepti honoris privaretur ; which being concluded, Coepit Anselmus coram Rege Regnique Episcopis atque Principibus, exigere a Gerardo Archiepiscopo Eboracensi professionem de sua obedieutia & subjectione, quam non fecerat, ex quo de Episcopatu Herefordensi ad Achiepiscopatum Eboracensem translatus fuerat. Ad quae cum Rex ips • diceret, sibi quidem non videre necesse, ut professioni quam ordinationis suae tempore Gerardus fecerat, aliam superadderet, praesertim cum licet Ecclesiam mutaverit, idem tamen qui fuerat in persona remansit, nec a prima profession absolu • us extiterit. Anselmus in praesenti quidem Regiis verbis adquievit, ea conditione; ut Gerardus in manum sibi daret, se eandem subjectionem in Archiepiscopatu ei servaturum quam in Episcopatu professus fuerat ; Which Gerardus a • enting to, and presently performing before them. Exin STATUTUM EST, ut qui ad Episcopatum electi erant, Cantuariam i • e • t, & ibi dignitatis ipsius benedictionem, ex more susciperent.
In the year 1108. King Henry in the Feast of Pentecost, advenatis ad Curiam suam apud Londoniam, cunctis Magnatibus Regni, cum Anselmo Archiepiscopo, et caeteris Episcopis Angliae tractavit, concerning the chastity and against the marriage of Priests and Clergy-men • (concerning which several Laws and Canons were then made and published, with other good secular Laws against thieves, clipping and falsifying of money, &c.) which were thus praefaced.
Anno 1109. there arising a difference between Anselm and Thomas the elect Archbishop of York, about his consecration and subjection to Anselm ; thereupon Anselm calling the rest of the Bishops to him, by their advice, summoned him by 2. Bishops to come to Canterbury, there to receive his consecration, and to make such subjection to him as he required, unless he could prove he ought to be exempted from it. Whereupon the King sent a Writ to Anselm under his Seal, to adjourn the difference between Thomas and him till Easter.
Anno 1114. King Henry by the admonition of the Pope, and prayers of the Monks of Canterbury and other, and above all, being moved by divine instinct: Episcopos et Principes Angliae in unum apud Windeshoram fecit veni • e, eorum consilium in constituendo Pontifice Cantuariensi volens habere. The King first pi • ched upon Faricius Abbot of Abendon, who was there present for that end by the Kings command: Animus tamen Episcoporum et quorundam Magnatum in aliud vergebat, praeoptantium, aut quemlibet Episcoporum de ordine Cleric • li, aut Clericum aliquem de Capella Regis in opus illud ascisci. But when it was objected, that there had been no Archbishop since Augustine, but only one, which was not of the Monastic order, who for that presumption and other perverse things done by him was deposed by the Pope: and therefore they ought not to subvert the ancient and authentic custom, when there was no reason or necessity to do it; they were compelled to desist from their enterprise, which they labored with much endeavor to accomplish: whereupon by God's disposing providence, they suddenly gave their sentence for Ralph Bishop of Rochester to be Archbishop, requiring the Kings assent thereunto: who altering his mind concerning promoting the Abbot, willingly gave his assent to Ralph ; to whom all the Monks, Elders, and People of Canterbury gave their ready assents. Whereupon two Messengers were sent to Rome to Pope Paschal for his Pall, with Letters from the King and Bishops of England and Covent of Canterbury, wherein they recite his Election to this See: adding; Huic electioni affuerant Episcopy, Abbates, et Principes Regni, & magna populi multitudo, (to wit of Canterbury, not elected Knights, Citizens or Burgesses) consentiente Domino nostro Rege, et eandem electionem laudante, suaque authoritate corroborante. The Pope hereupon, with much difficulty, at the earnest entreaty of one Anselm, Nephew to the deceased Anselm, sent a Pall to Ralph by him, together with an angry harsh Letter to the King and Bishops the same year. Whereupon Eodem anno Henricus Rex, jussi • omnes Episcopos et Principes totius regni, ad Curiam suam, sub uno venire. Unde rumor per totam terram dispersus est, Pontificem Cantuariorum Generale Concilium (praes • nte Legato Domini Papae) celebraturum, & nova quaedam, tantoque Conventui digna, pro correctione Christianae Religions in omni ordine promulgaturum. Ita{que} ut Rex jusserat 16 Kal. Octobris Conveutus omnium apud Westmonasterium in palatio Regis factus est: & quod de Concilii celebratione, et Christianitatis emendatione, rumor disperserat, nihil fuisse, quae confluxerat multitudo tandem advertit : Only the Popes Letter to the King and Bishops (recorded in Eadmerus ) was there read. Wherein Pope Paschal setting forth his pretended universal Authority over all Kingdoms and Churches derived from St. Peter ; & that no great businesses should be done concerning the Church without him or his Legates privity and advice; taxeth the King and English Bishops, for electing, and translating Bishops, holding Synods, Councils, and meddling with the affairs of Bishops without his privity▪ for not permitting any Legates freely to pass into or return from England, without the Kings special license: for hindering Appeals to Rome, and not duly collecting and paying his Peterpence; admonishing them to reform all these their Exorbitances, and concluding with this menace. Si vero adhuc in vestra decernitis obstinatia permanere, nos Evangelicum dictum, et Apostolicum exemplum, pedum in vos pulverem excutiemus, & tanquam ab Ecclesia Catholica resilientes, divino judicio trademus. The King hereupon advising with his Bishops and Nobles, what answer he should return to the Pope concerning those things, and certain others which did very much offend his mind, Cono his Legat having suspended and Excommunicated the Bishops of Normandy, eo quod Conciliis (generalibus) tertio vocati, interesse noluerunt: Placuit in Communi, ut Rex suos Nuncios mitteret per quos quae vellet securius Papa mandaret : and withal sent that resolute Letter by them to the Pope here cited p. 108, 109.
An. 1116. When the forecited Parliamentary Council at Salisbury was held; Anselm returning from Rome, came to the King into Normandy with Letters from the Pope, appointing him his Legate and Vice-pope in England, Quod regno Angliae, brevi innotuit. Admirati ergo Episcopy, Abbates et Nobiles quique Londoniae aduniti sunt, super his, & quibusaam aliis, praesente Regina, communi Consilio tractatur, Quid multa? PLACUIT OMNIBUS, Archiepiscopum Cantuar. quem maxim res haec respiciebat, Regem adire, & exposita ei antiqua regni consuetudine, SIMUL AC LIBERTATE, si consuleret Romam ire, ET HAEC NOVA ANNIHILARI: amplectitur ill consilium ; & repairs thereupon to the King, informing him of this their resolution; with whom he found Anselm, waiting for a passage into England to exercise his Legatine authority. Sed Rex antiquis Angliae consuetudinibus praejudicium inferri non sustinens, illum ab ingressu Angliae detinebat. Itaque omnis de hujusce potestatis (Legati) exors effectus, a Normanda est in suos regressus.
In the year 1121. K. Henry the 1. Consilio Radulphi Cant. Pontificis et Principum Regni quos omnes in Epiphania Domini, sub uno Londoniae congregavit, decrevit sibi in uxorem Atheleiden filiam Godfredi Ducis Lotharingiae. After which she arriving in England; Conventu Episcoporum, Principum, et Procerum Regni, qui pro occursu Reginae factus fuerat ; the difference between Archbishop Ralph and Thurstan about his subjection to him, was moved: Pope Calix • us who ordained him, commanding the King and Archbishop, to permit him to enjoy his Bishopric; aut Rex anathemate, & Radulphus suspensione Pontificalis Officii, plecteretur. Hereupon the privileges of the Church of Canterbury (recorded in Eadmerus ) were recited, & quam digne Deo haec Apostolica disponerentur, intellectum est ab omnibus. Tamen ne praemissae intentio poenae, Regem vel Pontificem aliquatenus conturbaret, EX COMMUNI CONCILIO permissus est idem Thurstinus Angliam redire, & Eboracum Regia via veni • e. Quod & factum est, ea dispositione, ut nullatenus extra parochiam Eboracensem divinum officium celebraret, donec Ecclesiae Cantuariensi, de injuria, quam ei intulerat, abjurata cordis sui obstinatione satisfaceret.
About the year 1122. Pope Calixtus having by force deprived Pope Gregory, sent one Peter to be Legate over all Britain, Ireland, and the Orcades, as well as France, who sent some Abbots and others before him to give notice of his coming, the whole land being astonished at the expectation of his coming, the King sent the Bishop of St. Davies, and another Clerk to him into France where he stayed, to signify his pleasure and command, that they should bring him into England to him. The King by prudent counsel enjoined them; That after his entrance into England, they should so order his journey, that he should not enter into any Church or Monastery for hospitality or lodging, and that no necessaries should be administered to him from others; but only at his own expense. Being brought to the King and worthily received, he related the cause of his coming: The King pretending an expedition against the Welsh, answered;
By all these Parliamentary Councils and Proceedings in them, and the Kings answer to this Legate, it is most apparent from the testimony of Eadmorus (present at most of them) and then ancient Hi • orians. 1. That they all consisted during all the reign of King Henry the 1. of the King, Bishops, Abbots, Earls, Lord's and Barons, without any Knights, Citizens, Burgesses, or Commons elected by the people. 2ly. That not only the legislative but judicial power or judicature of Parliament in all civil, ecclesiastical and criminal causes debated or judged in them, resided wholly in the King, Prelates, Earls, Barons and Nobles, which they jointly and severally exercised by mutual consent, as there was occasion. 3ly. That our Kings, Prelates, Nobles were then all very vigilant, and zealous in opposing the Popes usurpations upon the ancient Liberties, Privileges, Customs of the king, kingdom, and Church of England. 4ly. That those Antiquaries and others are much mistaken, who affirm, the Commons were called to the Parliament of 16 H. 1. as well as the Peers and Nobles; and that since that time the authority of this Court hath stood settled, and the COMMONALTY had their voice therein, which the said H. 1. GRANTED TO THEM, in love to the English Nation, being a natural Englishman himself, when as the Normans were upon terms of revolt from him to his Brother Robert Duke of Normandy ; it being clear by these Histories, and all the Parliamentary Councils under King Henry the 1. and under Hen. the 2. King Ric. the 1. King John, and Henry the 3. forecited, and here ensuing; that there were no Knights Citizens, Burgesses, or Commons elected by the people, summoned to our Parliaments in their reigns succeeding Henry the 1. therefore not in his. 5ly. That the Opinion of Mr. Cambden, Judge Dodridge, Jo. Holland, Sir Ro. Cotton, Mr. Selden and others, is true, that the first Writ of Summons of any Knights, Citizens, Burgesses or Commons to Parliament now extant, is no antienter than 49 H. 3. dors. 10.11.
This being an irrefragable truth, as I conceive, the next thing to be considered of is this; whether the Commons, when thus called and admitted by H. 3. and E. 1. into our Parliaments, had any share, right, or interest in the judicature of Parliaments then granted to them, either as severed from, or jointly with the King and Lord's? And if any share or right at all therein; at what time, and in what cases was it granted or indulged to them?
With submission to better judgments; I am clear of opinion, that the King and Lord's, when they first called the Knights, Citizens, and Burgesses to Parliament, never admitted them to any share or copartnership with them in the ancient, ordinary, Judicial power of Parl. in civil or criminal causes, brought before them by Writ, Impeachment, Petition, or Articles of complaint, as they were the supreme judicature and Court of Justice; but reserved the judicial power and right of giving and pronouncing all Judgments in Parliament, in such cases and ways of proceeding, wholly to themselves, admitting them only to share with them in their consultative, Legislative and Tax imposing power, as the Common Council of the Realm, & thereby in cases of Attainder by Act, Bill, or Ordinance (a part of the Legislative not ordinary judicial authority of Parliament) allowed them a voice and partnership with themselves, and a share in reversing such A • tainders by Act, Bill, or Ordinance by another Bill or Sentence; but in no cases else, except such alone, wherein the King or Lord's should voluntarily, at their own pleasures, not of mere right, requite their concurrence with them. The Arguments, reasons, inducing me to this opinion and irrefragably evincing it, are these.
1. The Form of the Writs for electing, Knights, Citizens, Burgesses of Parliament, with the retorns and Indentures annexed to them, which are only ad faciendum, & consentiendum his quae & tunc ibidem de Communi Concilio dicti regni contigerint ordinari ; Which gives them no judicial power in civil or criminal causes there adjudged, as the Writs to the Lord's do give to them by these clauses; Ibidem cum Praelatis, Magnatibus, & Proceribus regni colloquium habere & tractatum: vobiscum &c. colloquium habere & tractare: Personaliter intersitis Nobiscum, ac cum Praelatis, Magnatibus & Proceribus super dictis negotiis tractaturi, vestrumque consilium impensuri; and usage, custom time out of mind.
2. Because when first summoned to our Parliaments, they were never called nor admitted thereunto as Members of the Lord's house, or as persons equal to them in power, nor admitted to sit in the same Chamber, as Peers, with them, but as Members of an inferior degree, sitting in a distinct Chamber from them, by themselves, at first, as they have done ever since, which I have elsewhere proved, against Sir Edward Cooks, and others mistakes, as Modus tenendi Parliamentum itself resolves, if it be of any credit.
3ly. Because after their call to our Parliaments, in 49 H. 3. they had scarce the Name, nor Form of an House of Commons, or Lower House, nor any Speaker of their Hou • e, that we find in History or Record, till 51 E. 3. Therefore doubtless they had no judicial power or jurisdiction.
4ly. When they became a House, and had a Speaker, they could neither choose their Speaker in any Parliament without a command to and license first granted them by the King, Lord Chancellor, or the person implied by the King to show the causes of summoning the Parliament; who gave them a command to elect their Speaker, and then to present him to the King and Lord's for their approbation of him at the time prescribed them; who had then power to allow or disallow their Speaker, and to order them to elect another then or afterwards, incase of unfitness, sickness, imprisonment, or any other just ground or excuse, as our Parl. Rolls and others attest. If then the Commons can neither elect their own Speakers, nor approve nor remove them, but by the Kings and Lord's approbation; who may discharge them upon just grounds, and order rhem to elect others in their places; and that against their wills, as in the case of Thorpe hereafter cited: Then certainly the judicature in all other cases, as well as this of their very Speakers, and Members too, resided still in the King and Lord's, and was not communicated to the Commons House.
5ly. The Commons House inability to administer an Oath to any person in any case which the Lord's alone have power to do in Parliament.
6ly. Their Petitions, Articles of complaint, and Impeachments in all Parliaments, delivered and sent up to the Lord's against Delinquents in Criminal causes, as well of Commons as Peers, Clergy men as secular persons; and their praying the Lord to judge and give sentence against them.
7ly. Their prosecuting and giving in evidence against all sorts of Deliquents at the Lord's Bar, as accusers.
8ly. Their standing always in such cases; and that bare headed in the Lord's House, as Prosecutors, Informers, Grand-Jurymen, whiles the Lord's alone fit, and that covered, and only give, pronounce the judgment, and that in the Comons absence for the most part, not presence.
9ly. Their having no voice or share at all in the hearing, examining, debating, reversing erroneous Judgments in other Courts upon Writs of Error brought in Parliament, but the Lord's alone.
10ly. The Kings & Judges not sitting amongst them, but only in the House of Peers to authorize and assist them in their judgments, are all infallible arguments and clear irrefragable demonstrations, that the Judicatory, or judicial power of Parliaments was never communicated to the Commons House, upon their first admittance into Parliament, nor since, but remained entirely, fully in the King and Lord's alone, as it did before. That this is so in truth, I have the express acknowledgement and confession of the whole House of Commons themselves long since, in the Parliament of 1 H. 4. rot. Parl. n. 79. remaining on record to all Posterity, with the Kings and Lord's concurrent resolution, both from the time of the Commons first admission, and for all succeeding ages. The Commons in this Parliament, November 3. made their Protestation in the same manner they had done in the beginning of the Parliament; and more over shown to the King Come les Ioggementz du Parlement apperteignent soulement au Roy et Seignieur, et nient as Communes, &c. That the Judgments of Parliament appertained only to the King, and to the Lord's, and not unto the Commons. And thereupon they pra • ed the King out of his special grace, to show unto them the said Judgments, and the cause of them, that so no Record mig • t be made in P • rliamen • against the said Commons, which are or shall be parties to any judgment given or hereafter to be given in Parliament, without that privity. Whereunto the Archbishop of Canterbury gave them this answer by the Kings commandment ; That the Commons themselves are Petitioners and demanders, Et que le Roy et les seigniours de tout temps ont eues et averont de droit les juggement in Parliament en manere come mesmes les Communes sont monstrez, and that the King and Lord's from all times have had (for times past) and shall have (for time to come of right the Judgments in Parliament, in manner as the Commons themselves have shown, Saving that in Statutes to be made, • or in Grants and Subsidies, or in such things as are to be do • e for the common profit of the REALM, the KING will have especially their advice and assent. By this memorable Record in Parliament it is apparent by the Commons own confession, First, That the Judgments in Parliament even in cases of Commoners themselves, and Members of the Commons House as well as Peers, appertain only to the King and to the Lord's , in the Affirmative. Secondly, That they appertain not to the Commons, in the Negative. Thirdly, A Confession both of the Commons, King and Lord's, That they have from all times in all ages before that Parliament appertained to the King and Lord's, and that of right, not by usurpation or connivence. Fourthly, An express order and resolution, that the King and Lord shall always keep and hold this their Right of Judicature in all times to come, without admitting the Commons to share therein upon this their Petition, as not fit to be granted them. Fifthly, That if the Commons should be admitted at any time to be parties or privies to the Judgments in Parliaments, as they then desired; it would be merely out of the Kings special Grace. Sixthly, That the special reasons, ends of the Kings summoning the Commons to Parliaments at the first and ever since, were only these especially, 1. to have their advice in Statutes to be made, 2. in Grants, or Subsidies, 3. in such things as are to be done for the common profit of the Realm ; not to give them the least share, right or interest in the Judicature or Judgments of Parliament, as it is the supremest Court of Justice.
The Judicial Power and the Judgments in Parliament being never transferred in part or whole by the King and Lord's to the Commons House, but entirely reserved to themselves, as before their admission in • o our Parliaments, as I have proved, it follows inevitably from thence; 1. That all Judgments given by the Commons House alone, or by any of their Committees of Sequestrations, Examinations, plundered Ministers, &c. without the Lord's, are merely void and null in Law, being Coram non judice ; and may be justly questioned and vacated by the Lord's upon appeal or complaint, as Nullities. 2. That the House of Commons have no more right or power to judge or vote down the Lord's House, or question or null their Judgments upon appeals to the Commons from them (as Lilburn and Overton ▪ pretend they may) than the Grand or Petty Jury have to Vote down the Judges and Justices of Assize or Sessions from the Bench, or to reverse or repeal their Judgments and Orders; Or the Common Council of London to vote down the Lord Mayor and Aldermen, and reverse their Orders and Judgments in their Court upon appeals unto them: They being in nature of Grand Jury men, and the General Inquisitors of the Realm, to inquire of, present and impeach, transmit delinquents of all sorts in Parliament to the Lord's House, their only Judges, Cooks 4. Instit. p. 24. 3ly, That the King and House of Lord's are now of right, and still ought to be the only true and proper Judges of all Parliamentary Causes, and Controversies, Civil, Ecclesiastical or Criminal, whether they concern Peers, Clergymen or Commoners, as they were originally before any Knights, Citizens or Burgesses summoned to them.
To clear this from all Scruples and avoid mistakes, I must inform you, that there is a twofold way of proceeding and judging in Parliaments. The 1. extraordinary and extrajudicial, by way of Bill, Act, or Ordinance, by the Legislative power alone; such Bills, Acts, Ordinances, ratifying only the precedent judgments of the Lord's passed against Malefactors, being not any proper actual Judgments in their own name. This is evident by one of the first cases wherein the Commons after their admission into our Parliaments, were made parties to a Judgment by way of Bill. In the Parliament of 15 E. 2. there were sundry Articles of High Treason in accroaching royal Power in divers cases &c. as likewise of misdemeanor and Breach of the Great Charter, exhibited against the 2. Hugh Spencers (both privy Counselors of the realm) which upon examination were found true BY THE EARLS, BARONS & OTHER PEERS OF THE LAND:
The Clause Roll of 14 E. 2. m. 17. Schedula, records the proceedings with this addition: that King Edward the 2. having summoned the Lord's to come to a Parliament with the rest of the Council at Gloucester, Humphrey de Boun, Roger de Mortimer, and their confederates, refused to come upon the Summons, for fear of Hugh Spencer, who was made Chamberlain in pleno Parliamento 12 E. 2. at York, desiring that he might be committed and kept in safe custody till the Parliament; for they we • e unwilling to come to him, so long as he was with the King. The King said; he much wondered at this their carriage, in regard Spencer was never questioned in any other Parliament since he was made Chamberlain, for any misdemeanor: & ignorare non debetis nec potestis, quod mandata nostra omnibus & singulis ad Nos ad hujusmodi mandata nostra convenientibus, protect • o & desensio sunt & debent, secundum legem et consuetudinem Regni nostri. As for removing Spencer from him, which they desired; he said, it were unjust, and of ill example, aliis Ministris nostris s • ipsum amoveremas à Nobis totaliter, sine caus • . Praef • u • vero Hugonem sive quema • is alium Custodiae sine causa committere non possumus nec debemus, cum hoc esset conira tenorem Magnae Chartae de libertatibus Angliae, et contra Communem Legem Regni nostri, ac contra Ordinationes (made by himself and the Lord's in Parliament.) Idem enim Hugo se protulit plane ac publice coram Nobis ad respondendum in Parliamento nostro & alibi prout debuit querelis nostri & si • gulorum a • ipso conqueretium volentium, & ad standum inde recto, &c. And thereupon he commands them to come and treat cum caeteris de Concilio, at Oxford ; whereas it appears by the Dorse of this Roll, he had formerly summoned them and the rest of the Council to Gloucester, whether these Earls refused to come. Claus. 15 E. 2. dorso 32. The whole proceedings against the Spencers in Parliamen, are at large recorded (but cancelled by order of the Parliament at York ) They were sent to every Court to be enrolled: and the writ recites, thar their judgment was per pares in praesentia Regis.
Soon after, the same year the King summoned a Parliament at York on the 3. of September : where this judgment against the Spencers was questioned as erroneous ; and being referred to the consideration of
Anno 1326. Hugh Spencer the younger (notwithstanding the repeal of his exile) being taken by the Kings forces was brought to Hereford, and there arraigned publicly before William Trussel, a Judge: His inditement is at large recorded in the Chronicle of Leicester, and in Henry de Knyghton de Eventibus Angliae, l. 3. c. 15. col. 2547. &c. beginning thus; Hugo de Dispencere En Parlement nostre Seignour le Roy que ore est, tenue a Westminstre lanquinzisme, per examinent dez Prelates, Contes, Barones, et tote la commune de Realm fuist notoriement trove, que vostre piere, & vous Hugh fu • stez agardez TRAYTOURS & enmys del Realm; pur quel par assent & commandment nostre Seigniour le Roy, vostre Piere, & vous Hugh fuistez exules del Realm, sanz james revenir, si ceo ne fuist par lassent & commmandment nostre Seignious le Roy, & ceo en plain Parlement duement all ceo summounz. And for his returning into England against this Act, and his manifold murders, oppressions and misdemeanors since, there recited at large, he was condemned to be hanged, drawn, bowelled, quartered and beheaded, which was executed accordingly, December. 8. and his head fixed on a Poll, and set upon London bridge.
The Repeal of the Spencers exile was not long after repealed, and the Act for their exile re-confirmed in the Parliament of 1 E. 3. ch. 1, 2. in the Statutes at large, which recites; That they were exiled, disinherited and banished out of the Realm by the Commons assent, and award of the Peers and Commons of the Realm, and by the assent of King Edward, as Traitors and Enemies of the King and of his Realm: And that he by the Common Counsel of the Prelates, Earls, Barons, and other Great men, and of the Commonalty of the Realm, in his Parliament holden at Westminster, did ordain and establish, That the repeal of the said Exile, which was made by Duress and force, should be adnulled f • r evermore; and the same exile made by the award of THE PEERS AND COMMONS BY THE KINGS ASSENT, as aforesaid, shall stand in its strength in all points, after the tenor of every Article therein contained. But this Act of repeal by the like power and assent was repealed as erroneous, and the heir of the Spencers restored to blood and Lands by the Parliament of 21 R. 2. Rot. Parl. u. 35. to 57. And that whole Parliament again repealed and nulled by 1 H. 4. c. 3. Cooks 4 Instit. p. 25. This was the issue of this very first Attainder, wherein the Commons concurred with the Lord's, being carried by force and power on all hands in those turbulent times.
In the Parliament of 11 R. 2. ch. 1, 2, 3, 4, 5, 6, 7. in the Statutes at large. Alexander Archbishop of York, Robert de Vere Duke of Ireland, Michael de la Pale Earl of Suffolk, Robert Tresylien, chief Justice, R. Belknap, with sundry other Judges, Lawyers, Knights, Gentlemen, Clergymen, and other Commons and Prelates were impeached by the Duke of Gloucester, and other Lord's Appellants of High Treason, in 36 Articles, & thereupon attainted, condemned, judgment of death, banishment, forfeiture of their lands and estates given against them in Parliament by the Lord's, without the Commons. After which the Lord's exhibited a Petition to the King for the confirmation of the said Attainders and forfeiture. Whereupon the King considering the mat • er of the said Petition to be true, at the request of the said Commons, of the assent of the Prelates, Dukes, Earls, Barons, and all others of this present Parliament, granted the request of the said COMMONS in all points, after the form of the said Petition; And moreover of the assent aforesaid, passed sundry Acts touching their Attainders, Judgments, Exiles, and forfeitures, which all may peruse at leisure in the Statutes at large. In the Parliament of 21 R. 2. upon the Petition of the Commons, by the like assent, c. 2. to 12. in the Statutes at large; these Attainders, Judgemens, forfeitures, and the whole Parliament of 11 R. 2. were repealed, as erroneous, and nulled. Yet after by the Parliam. of 1 H. 4. c. 3. the Parl. of 21 R. 2. is nulled, and that of 11 R. 2. revived and confirmed, with all the attainders, and Judgments therein given. In the Parliament of 9 H. 6. c. 8. Owen Glendor, formerly endited and attainted of high Treason for his grand insurrections and rebellions, by the assent of the Lord's spiritual and temporal, and of the King • at the special request of the Commons, was by special Act, declared a Traitor; and all manner of Indictments, Inquisitions, Processes, Records, Judgments, Ordinances, Statutes made against him, authorized, established for Law, by assent of the Lord's and Commons in Parliament. In the Parliament of 29 H. 6. c. 1. The King by the advice of the Lord's spiritual & temporal, and at the request of his Commons, by a special Act, attainted John Cade of several High Treasons, for traytorously iman • ging the Kings death, the destruction and subversion of this Realm, in gathering and levying great numbers of the Kings people, and them exciting to make insurrection against the King, his regalty, crown, and dignity, and to make and levy war falsely and traitorously against the King: for which they confiscated all his Lands, Tenements, rents and possessions to the king, corrupt and disable his blood forever, and enact him to be called a false Traitor within the Realm forever. And in 31 H. 6. c. 1. with the advise and assent of the Lord's, and at the request of the Commons, it is ordained, established, that the said John Cade shall be reputed, had, named, and declared a false Traitor to the king; and all indictments and proceedings had and made under the power of his Tyranny, were clearly repealed and adnulled forever, and to be of no effect, but void in Law, and put in oblivion, and destroyed forever, as purposed against God and Conscience, and the Kings royal estate and preeminence, and also dishonorable and unreasonable. In the Parliament held Anno 38 H. 6. rot. Parl. n. 5. to 26. Richard Duke of York with sundry other Lord's and Commons were attainted of High Treason by Bill for conspiring and levying war again • t the King. And in the Parliament of 1 E. 4. rot. Parl. n. 12, 17. to 37 King Henry the 4 H. the 6 Queen Margaret, Edward Prince of Wales, Henry Duke of Somerset, the Earl of Devonshire, with sundry other Knights, Esquires, and Gentlemen, Priests and Yeomen were attainted of High Treason by Bills, for levying war against king Edward the 4. In the Parliament of 4 E. 4. rot. Parl. n. 2. to 39. the Duke of Somerset, Henry Beauford, Sir Ralph Piercie, with sundry other Knights, Esquires and Gentlemen were attainted of High Treason by Bill for levying war against the king; most of which attainders in the Parliaments of 12 E. 4. rot. Parl. n. 15. to 36.13 E. 4. n. 45.14 E. 4. n 45.27, 28, 29, 31, 32.17 E. 4. n. 19, 20, 21, 22. E. 4. n. 23▪ were repealed by Bills, and the parties, or their heirs restored to blood and Lands. In the Parliaments of 14 E. 4. rot. Parl. n. 34, 35, 36, 37. Sir Richard and Sir Robert Wells, John Vere, Earl of Oxford, Sir Thomas Vere, with sundry more Knights and Gentlemen were attainted by Bill of High Treason, for Levying war against the king, and some of the Attainders repealed by Bill afterwards. In the Parliament of 25 H. 8. c. 12. Elizabeth Barkin, Richard Master, Edward Barkin and sundry others were attainted and condemned of High Treason, & John Fisher Bishop of Rochester, Thomas Gold and others of misprission of High Treason, by Act of Parliament. In the Parliament of 28 H. 8. c. 7. Queen Anne, George Lord Rochford, Sir Henry Norris, Sir Francis Weston, William Breerton Esquire, and Mark Sutton were convicted and attainted of High Treason, and their lands forfeited by Bill. In the Parliament of 32 H. 8. Thomas Lord Cornwell was convicted and attainted of High Treason by Bill (against Law, and the great Charter) without ever being called to answer, or any legal hearing, for the Treasons therein expressed, according • o his own intentions to have thus proceeded against others without legal trial. In the Parliament of 33 H. 8. c. 21. Queen Katherine, & Jane, Lady Rochford were convicted and attainted of High Treason by Bill, to which Act the king was enabled to give his royal assent, by Letters Patents, signed by him under his hand with his great Seal, notified and published in the HIGHER HOUSE, to the Lord's Spiritual and Temporal, and the Commons there assembled, without coming to the House in person to give his royal assent thereto. In the Parliament of 2 & 3. Ed. 6. ch. 17. Sir william Sharington Knight being indicted and attainted of High Treason, for forging and coining of money called Testons, his attainder was confirmed by Act of Parliament and his lands forfeited. And ch. 18, Sir Thomas Seymor Lord Seymor of Sudley, and high Admiral of England, for his traiterous aspiring to the Crown of this Realm, and to be King of the same, and for compassing and imagining by open Act to deprive the King of his royal estate, and title of his Realms, and for compassing and imagining the death of his Noblemen, and most traitorously to take away and destroy all things which should have sounded to the let or impediment of this his most traiterous and ambitious enterprise (as the Act recites;) and for other his misdemeanors, innumerable untruths, falsehoods, deceitful practices, outrages against the King, oppression, & manifest extortion upon the Subjects of the Realm, was adjudged and attainted of high Treason by Bill, and to sustain such pain of death, and other forfeitures, aes in cases of High Treason have been used being a Member so unnaturul: unkind, and corrupt, and such a heinous offender of his Majesty and his Laws, that he cannot nor may not conveniently be suffered to remain in the body of the Commonwealth, but to the extreme danger of the Kings Highness, being the head, and of all the good Members of the same, and of too pernicious and dangerous example, that such a person so bound to his Majesty by sundry great benefits, and so forgetful of them, and so cruelly and urgently continuing in his false and treacherous intents and purposes against his Highness, and the whole estate of his Realm, should remain among us.
In the Parliament of 1 Mariae ch. 1. the Attainder of Queen Katherine is reversed by Bill; and ch. 16. the Attainders of John Duke of Northumberland, Thomas Cranmer Archbishop of Canterbury, William Marquess of Northampton, John Earl of Warwick, Sir Ambrose Dudley, with other Knights and Gentlemen, formerly convicted and attainted of Treason, according to the Law of the Realm, for their detestable and abominable Treasons, in proclaiming and setting up Queen Jane, to the peril and great danger of the person of Queen Mary, and to the utter loss, disherison, and destruction of the Realm of England, if God in his infinite goodness had not in due time revealed their traiterous intents (as the Act recites) at the Petition and with the assent of the Lord's Spiritual and Temporal, and Commons in Parliament, were confirmed and ratified by a special Act. In the Parliament of 29 Eliz. c. 1. the Attainders of Thomas Lord Paget, Sir Francis Englefield, and sundry other Knights and Gentlemen, who were lawfully indicted, convicted, and attainted of many unnatural, detestable and abominable Treasons, to the fearful peril and danger of the destruction of the Queens Majesty's person, and of the Realm, were confirmed by a special Act, and ch. 3. there is another Act, to avoid fraudulent assurances, made in certain cases by Traitors. In the Parliament of 3 Jacobi, ch. 2. Sir Ever • rd Digby, Robert Winter, Guy Fawkes, Robert Cates • y, and all the rest of the Gunpowder Traitors who undertook the execution of the most barbarous, execrable and abominable Treason that could ever enter into the hearts of most wicked men, by blowing up the Lord's House of Parliament, with the King, Queen, Prince, Lord's Spiritual and Temporal, Judges, Knights, Citizens, and Burgesses of Parliament, therein assembled; were attainted of High Treason, and their former attainders and convictions confirmed by a special Act: And in this very last Parliament, the Earl of Strafford Lord Deputy of Ireland, and William Laud Archbishop of Canterbury, after judgment of high Treason, upon their several impeachments and trials given against them by the Lord's in their House, were likewise attainted of Treason, and their judgments ratified by a special Bill and Ordinance, to which the Commons assented, as well as the Lord's; their assents to Attainders, by way of Act or Bill being so necessary, that if the King in Parliament Wills, that such a man shall be attainted of Treason and lose his lands, and the Lord's assent, and nothing is spoken of the Commons in the Bill, this is no Act nor, good Attainder in Law, and the petson shall be restored by the opinion of all the Judges, 4 H. 7. f. 18. Broke Parliam. 42. Fitz. 3.7 H. 7.14. 11 H. 7.27. Broke Parliam. 107. Plowden 79.32 H. 6.18. As the Commons in our English Parliaments have assented to all these and some other Bills, and Acts of Attainder cited in Sir Edward Cooks 4 Institutes, ch. 1, 2. and Mr. St. Johns Argument at Law concerning the Bill of Attainder of High Treason of Thomas Earl of Strafford, printed by Order of the Commons House 1641. So I find that the Commons in Ireland have done the like in the Parliaments held in Ireland, as the Printed Statutes of Ireland 28 H. 8. c. 1. for the Attainder of the Earl of Kildare, and others of High Treason. 11 Eliz. ch 1. for the Attainder of Shan O Neyle and others of High Treason, of 13 Eliz ch. 6. & 7. for the Attainders of Fi • zgerald and others of High Treason, Of 27 Eliz. ch. 1. for the Attainders of James Eustace and others of High Treason, of 28 Eliz. ch. 8. & 9. for the Attainders of the Earl of Desmond, John Brown and others, and of 11 Jacobi ch. 4. for the Attainders of the Earl of Tyrone and others of High Treason, for their several rebellions, insurrections, wars, against their Sovereigns, and other Treasons mentioned in these respective Acts, abundantly evidence.
But yet the Commons assents to all these Bills of Attainders in cases of high Treason, did not institute them Judges of these persons, nor give them any share in the judicial right and power of Parliaments, 1. Because most of these persons thus attainted by Bill, were Queens, Dukes, Earls, Lord's, Barons, and Peers of the Realm, who were triable & to be judged only by their Peers, & none else, by the Common Law of England, Magna Charta, c. 29. and sundry other Acts, not by the Commons, who are not their Peers.
2ly. Because most of these parties thus attainted by those Bills, were first attainted, tried, judged, condemned in Parliament by the Lord's alone, as their proper Judges, upon the complaints or impeachments of the Lord's Appellants, or of the Commons themselves, or else before some other Judges, upon indictments and legal trials; and those Acts did only confirm and ratify their precedent attainders recited in them.
3ly. Because in many of these Acts the Commons did only petition, that their Attainders might be ratified by Bill, and the King and Lord's assents thereto, which was done at their request as Petioners, not Judges.
4ly. Because their Judgments and Attainders, passed formerly by the Lord's and Judges, were good in Law, though thus ratified afterwards by Bill, for the greater terror, certainty, and satisfaction; and these Bills did pass no new Judgments and Attainders upon the parties, but only ratify the old; and in cases where there was no precedent Attainder, they attaint them only by virtue of their Legislative power, without any indictment, trial, or hearing of the parties themselves, as Judges of them (some of them being dead when attainted) taking all the charges in the Bills pro confesso, and notoriously true, and proved such by some other precedent legal convictions and evidences.
2ly. There is a formal proper Judgment given in our Parliaments both in criminal and civil causes, upon complaints, Articles, Petitions, Impeachments, Indictments, Informations, Writs, Appeals, Reports, References, and that either against or concerning Peers themselves, or against or concerning Commoners, and other Laics or Clergymen. And in all such cases, proceedings, the King and Lord's alone have a proper judiciary power or right of Judicature without the Commons, vested in and executed by them, which I shall abundantly evidence and make good by sundry memorable Presidents out of our Histories and Records in all ages, not vulgarly known, and for the most part never yet remembered by any who have wri • ten of our Parliaments, and the proceedings in them, whose Treatises are very slight, unsatisfactory, and in many things of this nature, erroneous.
I shall begin first with presidents concerning Ecclesiastical & Temporal Lord's alone, proceeded against, impeached, judged, censured in our Parliaments for sundry criminal causes, Offences, Treasons, wherein the House of Commons can challenge no share or voice in the Judicature, (especially in the case of Temporal Lord's, who are such in their own right, and sit in Parliament ration Nobilitatis ) but the Lord's alone, and that by the express Letter and Resolution of the Great Chariers of King John, and of King Henry 3. and Ed. 1. c. 14.29.15 E. 3. c. 2, 3, 4. and ro • . Parl. n. 6.8.11 R. 2. rot. Parl. n. 6, 7.5 H. 4. rot. Parl. n. 12.28 H. 6. ror. Parl. n. 51, 52, 53. 20 H. 6. c. 9.26 H. 8. c. 13.28 H. 8. c. 7.18.31 H. 8. c. 12.32 H. 8. c. 4.33 H. 8. c. 12, 20, 23.35 H. 8. c. 2.1 Ed. 6. cap. 12. 1 Mar. c. 6.1 & 2 Phil. & Mar. c. 3.4 & 5 Phil. & Mar. c. 4.1 Eliz. c. 1.5.5 Eliz. c. 11.13 Eliz. c. 1.14 Eliz. c. 1, 2, 3. 18 El. c. 1.23 El. c. 1, 2.27 El. c. 2.3 E. 3.19. Fit: Corone 16 • .1 H. 4.1.10 E. 4.6. Brooke Trial 142. Stamford▪ l. 3. c. 1. f. 152.33 H. 8. Brook • Trial 142.34 H. 8. Bro: Corone 172.13 H. 8.11. Br. Treasons 29.38 H. 8. Br. Treasons 2.33. Dyer 99.107.208.360. Cook 6 Rep. f. 52.9 Rep. f. 30.87. and Cooks 2 Instit. f. 28, 29, 48, 49, 50. and his 3 Instit. c. 1. & 2. p. 27, 28, 29.30, 31. All which declare, enact, resolve, That the Peers of this Realm shall not be tried or proceeded against, but only by the lawful judgment, and verdict of their Peers. The Lord's and Barons of Parliaments trial by Peers alone of their own rank, being so essential, that they cannot waive, nor put themselves upon the trial of the Country, by 12. ordinary Freeholders, as was resolved in the Lord Dacres case, Pa. 26 H. 8. Cooks 3 Institutes, f. 30. much less then can they waive their Peerage itself, and sit as Commoners in the Commons house, as I have formerly proved.
The first president I meet with in our Histories of this nature, is in the reign of Cassibelan the British King, who having repulsed Julius Caesar upon his first landing in this Island and forced him to return into France, Edictum fecit ut omnes Proceres Britanniae convenirent; to the City of • roynovant, now London : where Evelin, nephew to Androgens Duke of Troynovant, slaying Heralgas nephew to Cassibelan, upon a sudden quarrel as they were playing together, Cassibelan thereupon commanded Evelin to be brought before him, talem sententiam quam Proceres regni judicarent subire: which Androgeus opposing, • aying sese suam Curiam habere, & in illa diffiniri debere quicquid aliquis in homines suos clamaret ; thereupon Cassibelan threatened to waste his Country with fire and sword, if he refused to deliver up his Nephew to justice, to undergo the sentenc • quam Proceres dictarent: which he accordingly executed, for refusing to put his Nephew upon the Trial and Judgment of the Nobles for this murder.
The next president I find, is that of Wilfrid Archbishop of York, who for refusing to divide his Bishopric into two Bishoprics more, and for endeavoring to persuade Queen Emburga, to become a Nun, and desert her husband Egfrid, King of Northumberland, was through that Queens malice and prosecution in two several Parliamentary Councils Anno 678. & 692. twice deprived of his Archbishopric and banished the Realm, by King Egfrid, Theodor Archbishop of Canterbury, and the rest o • the Bishops and Nobles of the Realm assembled in these Councils; and at last restored to his Archbishopric again, in another Council, An. 705. by King Osred his will and consent.
About the year of our Lord 924. Elfred a Nobleman, who opposed Aethelstans title and election to the Crown, though in vain, intended to seise upon him at Winchester, and put out his eyes; but his Treason being discovered, he was apprehended and sent to Rome to purge himself thereof by Oath : where he abjuring the fact before the Altar of St. Peter in the presence of Pope John the 10th. fell down suddenly to the ground as dead, and being thereupon carried away thence to the English School, he there expired within 3 days after. The Pope acquainting the King therewith, and craving his advice, what to do with him, and whether he should have Christian burial? the King thereupon assembled a Council of the Nobles of his Realm, at whose inteaty he granted him Christian burial; but for this his Treason, they confiscated all his Lands great and small to the King, who by their consent granted them all to the Abbey of Malmesbury by his Charter: wherein he recites Elfreds Treason, death, and the judgment given against him by the Nobles: adding Sciant Sapientes regionis nostrae, non has praefatas terras me in just rapuisse, rapinamque Deo dedicasse▪ sed sic ease accepi quemadmodum judicaverunt omnes Optimates regni Anglorum: et sic adjudicata est mihi tota possessio ejus in Magnis et Modicis. Here we have a direct judgment given against Elfred after his death, by all the Nobles of the Realm assembled in a Parliamentary Council, for Treason against the King, for which they adjudged, he should forfeit all his Lands to the King: whose seisure of them by this legal judgment, was no rapine, but a just and legal perquisite, which he in gratitude dedicated unto God.
Anno 985. as some; or 986. as others relate, King Æthelred banished Alfric Duke of Mercia ▪ out of the Realm: the cause and manner thereof, not expressed by our Historians, is thus recited in King Ethelreds Charter to the Abbot of Abingdon, in the Leiger book of Abingdon, f. 91. that Alfric had forcibly ravished and taken away, Willemetrant and Syrene from a widow named Eadfeild, for which he was banished: after which being recalled, and made one of the Kings Admirals against the Danes, Anno 992· he played the Traitor and revolted to the Danes, as our Historians record; for which Treason, & as that Charter recites; quia cum Ducatu suo contra Regem Ethelredum reus exstitit, omnes possessiones ejus Regis ditioni subactae sunt : and that by the Lord's judgment given in a COUNCIL at CIRENCESTER: styled Synodale Concilium ad quod omnes Optimates mei simul in unum convenerint, et eundem A • fricun Majestatis reum, de h • c patria profugum, expu • erunt: by whose Judgment, as he seised his Dukedom and Lands there adjudged to be forfeited for his Treason, it is likewise probable he caused the Eyes of Algarus, son of this Traitor Alfric to be put out: An • o 993. when this Council at Cirencester was held, as I conjecture.
In a great Parliamentary Council held at Oxford, Anno 1015. King Æthelred caused some Nobles of the Danish race, whereof Sygeforth and Morcar were chief, to be suddenly and secre • lie slain and put to death, as being noted and accused of Treason and Perfidiousness towards the King; who thereupon seised upon their Earldoms, Lands and Goods.
King Cnut Anno 1017. by his precepts assembled all the Bishops, Dukes, Princes and Nobles of the English Nation in a Great Parliamentary Council at London, where they all swore allegiance and homage to Cnut as their King, totally rejected, abjured Edmond Ironsides Sons and Brothers, (right heirs to the Crown;) against their former Oaths of Allegiance to them, and by wicked advice, ad • udged Prince Edwin to be banished the Realm, and Edmond Ironsides Sons to be sent beyond the seas, to be slain by the Barbarians ; for which, by divine retaliation, • he chiefest of them within one year after, were slain or banished the Realm by King Cnut, whom they endeavored to ingratiate and secure by this their unjust sentence. The Chronicle of Brompton, Caxton in his Chronicle, and Mr. Selden, record this memorable proceeding in an Appeal of Treason against Earl Godwin in a Parliamentary Council held about the year 1043. Godwin Earl of Kent being enforced to fly into Denmark to preserve his life, for the murder of Prince Alfred, Brother to King Edward the Confessor, hearing of Edwards piety and mercy, resolved to return into England, humbly to implore his mercy and grace, that he might regain his lands then confiscated for it; having provided all things for his journey he put to Sea, arrived in England, and posted to London, where the King then held a Parliamentary Council wi • h all his Nobles. Comes Godwinus usque Londonias ubi Rex et omnes regni Magnates ad Parliamentum tunc fuerant, properavit, rogans ibi et petens amicos & consanguineos suos, qui post Regem majores terrae fuerunt, ut gratiam et amicitiam à Rege sibi perquirere studerent. Qui super hoc consilio inter eos deliberato, ipsum coram Rege pro grat • a obtinenda secum duxerunt. Sed statim cum Rex eum intuitus esset▪ De proditione et morte Alfredi fratris sui, ipsum appellavit in haec verba. Proditor Godwine ego te appello de morte Alfredi fratris mei, quem proditionaliter occidisti. Cui Godwinus se excusando respondit. Domine mi Rex, salva reverentia et gratia vestra, pace & dominatione, fratrem vestrum unnquam prodidi veloccidi; unde super hoc pono me in consideratione Curiae vestrae. Tunc d • xit Rex , Karissimi Domini, Comites et Barones terrae: qui est • s homines me • liget modo hic congrega •• , & appel • um meum responsumque Godwini audisti • , Volo, quod inter nos in ista appellatione rectum judiciam decernatis et debitam justitiam faciatis: Comitibus vero et Baronibus super hoc ad in vicem tractantibus, quid • m inter eos de justo judicio faciendo diversimodo sentiebant: Alii enim a • cebant ; Quod nunquam per homagium, servitium, seu fidelitatem Godwinus Regi exstitit alligatus▪ et ideo Proditor suus non fuit; & quod ipsum etiam manibus fuis non occiderat. Alii vero dixerunt : Quod Comes, nec Baro, nec aliquis Regi subditus bellum contra Regem in appellatione sua-de Lege potest vadiare, sed in toto ponere in misericordia su • , et emendas sibi of • er • e competentes. Tunc Leofricus, Consul Cestriae▪ probus homo quoad Deum & seculum, dixit: Comes Godwinus, post Regem & homo melioris parentelae totius Angliae, et dedicere non potest, quin per consilium suum Alfredus frater Regis interemptus fuit; unde per me considero, qúod ipsemet & filius suus, et nos omnes 12. Comites, qui amici et consanguinei sui sumu • , coram Rege humiliter procedamus, onerati cum tanto auro et argento quantum inter brachia sua quilibet nostrum poterit bajulare, illud sibi pro su • transgresin afferendo, et suppliciter deprecando, ut ipse malevolentiam suam, rancorem et iram Comi • i con onet: et acce • tis homagio suo & fidelitate, terras suas sibi integre restituat e • retradat. Illi au • em omnes sub ista forma thesauro se onerantes, et ad Regem acced • ntes, seriem & modum considerationis eorum sibi demonstr • bant. Quorum considerationi Rex contrad • cere nolens, quicquid judicaverant per omnia ratificavit: Concordia igitur sub isto modo inter eos facta, Comes statim reobtinuit integreterras suas By this notable president it is most apparent: That the Peers and Barons in Parliament, were then the sole and only Judges, and gave judgment in it: That Peers in the Confessors reign and before, were only to be tried, judged by their Peers: and that their Judgment and resolution was binding even to the King himself, who ought to assent to and confirm their judgments given in his own Appeal and particular cases.
In the year of our Lord, 1051. this Earl Godwin refusing to execute King Edwards unjust command, to fall with his Army upon the Inhabitants of Dover, upon the complaint of Eustace Earl of Boloigne, whose men they slew in an affray raised by their own insolency and abuse; conceiving it to be unjust to condemn and execute them before a Legal hearing, trial and conviction, upon a mere accusation; thereupon Eustace and the Normans accused Godwin and his two sons, Harold and Swain, to the King, that they disobeyed and went about to betray him. Wherefore, TOTIUS REGNI PROCERES, all the Nobles of the Realm were commanded to meet together at Gloucester, that the business might be there debated in a Great Parliamentary Assembly. Syward Earl of Northumberland, Leofri • Earl of Mercia, and all the Nobility of England there meeting upon this occasion; Godwin and his two sons only absented themselves, thinking it not safe to come thither without a strong armed guard: upon this they raised a great Army under a pretence to curb the Welshmen, marching with their forces into Glocestershire as far as Beverston Castle. Whence he sent a Message to the King, to deliver up to him Earl Eustace, with his Companions, and the Normans and Bononians who kept Dover Castle, else he would denounce war against him. The King having raised a powerful Army, returned him this answer; That he would not deliver them up to him : withal commanding him and his Sons to come unto him on a set day, to answer his raising of an Army against him, and disturbing the Peace of the Realm without his license, and to submit himself to the Law for the same. At last to prevent a bloody battle, by the mediation of the Nobles of England (engaged on both parties in this quarrel) it was agreed, that hostages should be given on both sides, and that the King and Godwin should meet in another Parliamentary Council at London on a certain day, to plead one with another : where such a Council (or Parliament as our English later Historians style it) being assembled: Godwin and his sons were summoned to appear therein only with 12 men to attend them: which they thinking both unsafe and dishonorable to them, refused to appear without hostages and pledges also given for their safety, refusing to surrender their Knights fees to him; the King for their contempt to appear and justify themselves in his Court of Parliament, thereupon in suo Concilio communi Curiae suae judicio; by the Common Council and Judgment of his Court (of Parliament) banished Godwin and his 5. Sons out of England : and a Decree was published, that they should depart w • thin 5. days out of England ; Which Judgment and Outlawry against them, was given in Parliamento pleno, as Radulphus Cistrensis in his Poly • h • onicon, Henry de Knyghton, de Eventibus Angliae, l. 1. c. 11. and other Historians inform us. Godwin and his Sons hereupon departing the Realm, infested it both by Sea and Land, till at last raising a potent Navy and Army, to prevent further danger and effusion of blood; the King by the COUNCIL OF HIS NOBLES assembled for that purpose; reversed the unjust Judgments given against them, restored them to their Lands, Honors, Powers, and banished those Aliens who gave the King ill Counsel, and incensed him against Godwin and the English.
King Edward Anno 1055. Habito Londini Concilio, holding a Parliamentary Council with his Prelates and Nobles at London, banished Algarus Son of Leofric Earl of Mercia out of the Realm Quia de Proditione Regis in CONCILIO CONUICTUS fuerat ; because he was convicted in the Council of Treason against the King; as some Historians write: yet Florentius Wigorniensis, Simeon Dunelmensis, Howden Henry de Knyghton, and others affirm, that he was banished sine culpa, without any crime at all: whereupon he coming with 18 ships out of Ireland, joined with Griffin King of Wales, raised a great Army and invaded England ; whereupon by agreement he was restored by the King to his Earldom : After which, Anno 1058. he was banished the second time, and by th • aid and assi • tance of Gr • ffin, restored again to his Earldom (whereof he was unjustly deprived.)
In the year 1074. Waltheof Earl of Northumberland, with sundry other Earls, Bishops and Abbots, and other Eng • ishmen, meeting together at the marriage of Earl Ralph to the daughter of William Fitz O • bert, conspired together against King William the first (then in Normandy ) to expel him out of his kingdom, reputing it a great dishonor, that an illegitimate Bastard should rule over them : for which purpose they raised forces and confederated themselves with the Danes and Welshmen. But being resisted by the Kings party and routed; thereupon the King posting into England, imprisoned Roger Earl of Hereford, and Earl Waltheof, though he revealed the whole conspiracy to Archbishop Lanfranke, and submitted himself to the King before it brake out, by which means it was timely suppresed. The King the next Nativity of our Savior following, CURIAM SUAM TENUIT held his Court (of Parliament) at Westminster ; wherein,
Anno 1070. There was a GREAT COUNCIL held at Winchester, jubente & praesente Rege Gulielmo, wherein Si • gan • Archbishop of Canterbury, his Brother Bishop Agelmar, and lundry Abbots were degraded for many pretended rather than real crimes and misdemeanors,
In the 7 year of William Rufus, Anno Dom. 1094. there fell out a great difference between the King and Archbishop Anselm upon this occasion. The King alleged that it was the royal prerogative of him and his Ancestors, That no man without his license or election should nominate or acknowledge any one within the Realm of England, to be a lawful Pope, or yield obedience to him as Pope: and that whosoever would deprive him of this royal prerogative, it was all one as if he endeavored to deprive him of his Crown. Anselm whiles he was Abbot of Becca in Normandy, before he was made Archbishop of Canterbury, had acknowledged Urban to be lawful Pope, whom the King had nor yet received as Pope, and resolved to receive his Pall from him, and by no means to recede from this his subjection and obedience to him. Upon which occasion the King being highly displeased with him, protested, That Anselm could not possibly keep that allegiance which he owed to him, and likewise his obedience to the Apostolic See, against his will, they being inconsistent together; and thereupon reputed him a Traitor to his Crown and dignity.
Anno 1095. Robert de Mulbrain, William de Auco, and many others, conspired to deprive King William Rufus both of his kingdom and life, and to make Stephen Earl of Albemarl King, whom the King having thereupon taken Prisoners by an Army raised against them, and committed to safe custody, till their trial in Parliament.
Anno 1996. 8 days after Epiphany, apud Salisberiam tenuit CONCILIUM; in quo jussit Gulielmi de Auco, in duello victi oculos eru • re, & testiculos abscindere, & dapiferum illius Gulielmum de Alderi, suspendi. Comitem Odonem de Campania, praedicti Stephani patrem, & quosdam alios traditionis participes in custodiam posuit. Here the King and Lord's in a Parliamentary Council, • udge and condemn Traitors to death, imprisonment, or other corporal punishment, as well Commons as Peers.
In the year of Christ, 1.100. Ranulph Flambard Bishop of • urham, Consilio gentis Anglorum, By the Vote of the whole Parliament of England, was clapt up Prisoner in the Tower of London by King Henry the 1. at the importunity of the Nobles, and the innumerable complaints made against him, he being the chief Author and promoter of all the evil customs, extortions, and unjust oppressions of the Realm and people, exercised by King William Rufus (then redressed by the Charter of King Henry, made and ratified by the assent, advice of his Nobles and Barons) exacting many times twice as much of the people as W • lliam Rufus required, wherewith the K. very well content, would laugh, and say, That Ranulph was the only man for his turn, who cared not whom he displeased, so he might please his Master. After he had been imprisoned some space, he made an escape out of the Tower by a rope, hurting his Leg and Arm by a fall from the wall to the ground, the rope being too short; & then escaping into Normandy, instigated D. Rob. to claim the Crown, and invade the Realm; to his own great loss, the effusion of much Christian blood, and great disturbance and damage of the kingdom; being ad omne scelus paratus.
Anno Dom. 1102. There was a GENERAL Council held in the Church of St. Peters in Westminster on the Westside of London; Communi assensu Episcoporum, et Abbatum, et Principum totius regni: huic conventui affuerunt (Anselmo Archiepiscopo petente a Rege) PRIMATES REGNI, quatenus quicquid ejusdem Concilii authoritate d • cerneretur, UTRIUSQUE ORDINIS concordi cura & sollicitudine tatum servaretur; sic enim necesse erat. I • this Council the Sin of Simony was first of all condemned by the authority of the holy Fathers, and Wido Abbot of Pescore, Wimundus of Tavestock, and Baldwin of Ramsy, Godric of Burgh, Haymo of Cernel, Egelric of Midleton being therein convicted of Simony, were removed and deposed for it by this Council, and Richard Abbot of Eli, Robert of St Edmond's and the Abbot of Miscelen deposed for other particular crimes and offense • . A • o • which the King being much incensed against Anselm and other Bishops for refusing to consecrate those Bishops whom the King invested with a staff and ring, the King and Anselm having a hot contest about it at Canterbury, Ne ipse perdendo suorum jura An • ecessorum ipsis vilior esset: Anselm requested the King • defer • he business till Easter▪ ut and • to Episcoporum, Regni • ue Primatum Concilio, qui modo non assunt; responde • m hi • ▪ which the • ing consenting to, at Easter, communis Concilit vocem unam accepit, that he should go to Rome to the Pope to procure a repeal of the Canon, made against investi • ures; and that as the Kings Embassador, Regis preces, Regnique negotia Apostolicis auribus expositurus: Anselm undertaking the journey to Rome, like an Arch-Traitor, so incensed the Pope against investitures, and the King, That William Warenast the kings Embassador telling him, H • kn • w the King would rather lose his Crown than this Privilege of Investitures: The Pope thereto replied; Yea, let him lose his head also if he will, whilst I live, he shall never appoint any Bishop in his Realm, but I will resist h • m what I may. The King hereupon (by the advise of his Nobles) prohibited Anselm to return into England, and seised all his Temporalties, and • oods moveable and immovable into his hands, keeping him in exile for 9 years space, after which he was conditionally restored, at the mediation of the Kings Sister Adela.
Anno 1106. Robert Duke of Normandy, was first adjudged to a shameful cruel death, and after that to have his eyes pulled out, and he kept perpetual Prisoner: and Earl Morton with others adjudged to perpetual prison, BY THE PEERS, for taking up arms against King Henry the 1.
King Stephen having against his own, the Bishops and Nobles Oaths to King Henry and Maude, usurped the Crown, Anno 1199. There were divers rumors spread abroad, that Robert Earl of Normandy, and Mawde would invade England, and that Roger Bishop of Salisbury, and Alexander his Nephew, Bishop of Lincoln, who were very powerful, wealthy, and had built, fortified and furnished divers strong and stately Castles, would upon the Empress landing surrender them to her, and revolt from Stephen to her party, Paternorum scilicet beneficiorum memoria inducti, being both advanced and enriched by her father: Whereupon the Nobles oft times wished Stephen to compel them speedily to resign their Castles to him, least he repented too late for not doing it, when they were in the Enemies power. Thereupon the King on the 8 of July apud Oxenford, FACTO CONVENTU MAGNATUM, summoned both these Bishops to this Parliamentary Assembly; to which Bishop Roger was very unwilling to come, having a great reluctancy in his mind against it; whereupon he excused his coming, by reason of his age and infirmity: but that would not be admitted, come he must, and did. When these Bishops came to Oxford, there fell out a sudden quarrel between the servants of the Bishops, and the servants of Alan Earl of Britain, as they sat together at the Table, the Bishops men quarrelling with the Earls, and falling first a fighting with one another with their fists, and at last with their swords, a sore fray was made, divers being wounded on either side, and one slain; the Earls servants being put to slight by the Bishops. The K. taking this occasion, Conveniri jussit Episcopis, ut Curiae suae satisfacerent de hoc, quod homines eorum pacem ipsius exturbassent: Modus fatisfactionis foret, ut claves castellorum suorum quasi fidei vadis traderent. The Bishops said they were ready to give the King satisfaction, but delaying the surrendering of their Castles, he commanded them to be more strictly watched, lest they should depart; and the king carrying the Bishop of Salisbury with him, besieged his Castles till they were surrendered to him by composition. This act of the king was variously interpreted, and very i • l resented by all the Bishops, who thereupon revolted from him, first in their affections, and then by their actions to Mande, when she arrived, and elected, declared her right heir to the Crown. Henry Bishop of Winchester the Popes Legat, though King Stephens own Brother, publicly to the Kings face, as well as privately, affirmed, Si Epis • opi tramitem Justitiae in aliquo transgrederentur non esse Regis sed Canonum judicium: sine publico et Ecclesiastico Concilio illos nulla possessione privare debuisse: Regem id non ex rectitudinis zelo, sed commodi sui compendio fecisse, qui Castella non Ecclesiis, ex quarum sumptibus, et in quarum terris constructa erat, reddider • t; sed Laicis, eisdemque parum religiosis, contradiderit, &c. Quapropter vigorem Canonum, experiendum ratus, CONCILIIO quod quarto Calend. Septembris celebraturus erat Wintoniae, fratrem Stephanum, incunctanter adesse praecepit. Dicto die omnes fere Episcopy Angliae, cum Theobaldo ARCHIEPISCOPO Cantuariensis, venerunt Wintoniam: In which Counc • l the Bp. of Winchester first reading his Legates Commission in England granted him by the Pope, and then relating the great indignity done by King Stephen to those Bishops by imprisoning their persons and seising their Castles against the Canons, demanded the Archbishops and Bishops advice what to do therein: concluding, Se ad executionem Concilii, nec pro Regis amicitia, qui sibi frater erat, nec pro damno possessionum, nec etiam pro capitis periculo defuturum. Rex causae suae non diff • sus Comites in Concilium misit, quaerens cur vocatus esset? Responsum est à Legato in compendio: Non debere illum, qui se Christi fidei subjectum meminisset, indignari, si à ministris Christi ad satisfaction̄ vocatus esset, tanti reatus conscius, quantum nostra secula nunquam vidissent, &c. Consulte vero in praesentiarum Rex faceret, si rationem facti sui redderet, vel Canonicum judicium subiret: Ex debito etiam oportere ut Ecclesiae faveret, cujus sinu exceptus non manu militum in regnum promotus fuisset. Hereupon the Earls departing, having provided an answer, returned with one Albric de Vere, an experienced Lawyer: who aggravating the Bishops offenses against the King, and the • ray of their Servants at Oxford in a modest manner, without reproach; alleged, that they being accused by general reports in all men's mouths, for intending to deliver up their Castles to Maud upon her arival, the King had thereupon apprehended and imprisoned them, not as Bishops, but as his Servants and Officers, and had not taken away their Castles by force, but by the Bishops voluntary surrender, ut calumniam de tumultu, quem in Curia coneitaverant, evaderent: That the money found in them, was only that the Bishops had collected for King Henry his Uncles use, and belonged now to his own Exchequer; and that the Bishops willingly parted with the money and Castles to him, for fear of the things they had committed against the King, who wanted not Witnesses to prove it. Therefore he desired the agreements between him and the Bishops might remain confirmed. Bishop Roger on the contrary, denied he was ever the Kings Officer, or received his moneys; adding, Si justitiam de rebus sibi ablatis in illo CONCILIO non inveniret, eam in audientia majoris Curiae q • aerendam. The Legat gently replied, Omnia quae dicuntur contra Episcopos prius in Concilio Ecclesiastico et accusari, & a • vera essent, decuisset inquiri, quam in indemnes contra Canonum Decreta sententiam proferri. Rex itaque faciat quod in forensibus judiciis legitimum est fieri, ut revestiat Episcopos de rebus suis. Alioquin jure Gentium, disseisati non placitabunt. After much debate on both sides, the cause was put off 3. days one after ano • her till the Archbishop of Rhoan came. Is ubi venit, dixit, se concedere ut Castella Episcopy haberent, si se jure habere debere per Canones probari possent; quod quianon possent, extremae improbitatis esse contra Canones niti velle. Et esto (inquit) justum sit ut habeant; Certe, quia suspectum est tempus, juxta morem aliarum gentium, Optimates omnes claves munitionum suarum debent voluntati Regis contradere, qui pro omnium pace debet militare. Ita omnis controversia Episcoporum infirmabatur. Aut enim secundum Canonum scita injustum est, ut habeant Castella; aut si hoc pro indulgentia principali toleratur, ut tradant claves necessitati temporis debent cedere. Albric the Kings Lawyer added; that the King was informed the Bishops intended to send some of themselves to Rome against him: But he advise • h none of you to presume to do it: for if any of you shall presume to go any whither against his will and the dignity of the Realm of England it is provided that his return will be very difficult. Hereupon the Council presently dissolved, and so ita discessum est, ut nec Rex censuram Canonum pà • i vellet, nec Episcopy eam consultum exercere ducerent duplici ex causa; seu quia Principem excommunicare sine Apostolici conscientia temera • ium esset, seu quoniam audirent, quidam etiam viderent gladios circa se nudari.
King Stephen in the • ea • 1152. Convocato apud Londonium, Generali Concilio, cum Episcopis, Proceribus et Nobilibus Angliae, tum pro Regni negotiis, cum etiam pro negotio vacantis Ecclesiae Eboracensis; much fearing and suspecting the valor and power of Young Henry Duke of Normandy (right heir of the Crown) ne in primo gradu haereditas cassaretur, fraud retenta, proposuit animo filium suū Eustachium, regio diademate insignire, & de jure debito & jurato Henricum praevenire & penitus privare. This design of his being propounded in this Great Council, the Earls and Barons assented to it; and thereupon (as Matthew Westminster records) Comites & Barones Angliae fecerunt ligantiam & fidelitatem Eustachio, filio Regis Stephani. Whereupon King Stephen requested Theobald Archbishop of Canterbury, with the rest of the Bishops, to crown and anoint Eustace King. Which the Archbishop peremptorily refused, the Pope having expressly prohibited him by his Letters; ne filium Regis qui contra jusjurandum regnum usurpasse videbatur, in regem sublimaret : that he should not crown the Son of a King, who had usurped the Crown and kingdom, against his Oath to Henry the first, Queen Maud, and their heirs. Hereupon King Stephen and his Son Eustace with their complices, being highly incensed, commanded all the Bishops with the said Archbishop, to be shut up in one house where they were assembled, desiring to extort that from them by terrors and threats, which they could not gain by prayers or price. Some of the Bishops struck with fear, deserted the Archbishops advice, and seemed to comply with the King; but the Archbishop continuing firm and resolute in his purpose, escaping out of the House by a miraculous accident, took his barge, and rowing down the Thames, got beyond Sea, and so escaped the threats of the King and Eustace, and defeated him of his much desired honor. Whereupon the King being more exasperated than before (by the advice of the Council) presently banished him the Realm, seised his Temporalties and confiscated all his goods : Who by way of revenge stirred up Duke Henry, right heir to the Crown, to invade the Realm, the very next year; to whom most of the Nobles and people (mindful of their former Oaths) presently flocked, deserting the perjured Usurper Stephen ; who against his Oath invaded the crown by the instigation also of Roger Bp. of Salisbury ; who though advanced by King Henry the 1. from a mean condition to the greatest place and power next to the King; yet proved so treacherously ungrateful to his heir Queen Maud, to whom he had sworn allegiance, U • Rege defuncto qui ei tantae in hoc seculo claritatis autor extiterat, circ • legitimos ejus haeredes insidus, ut S • ephanum Sacramento illo aeque astrictum allocaret, non solum non est veritus iucurrere perjurium, verum etiam aliis insigne pejerandi praestruxit exemplum. And therefore was himself as ingratefully and perfidiously handled by King Stephen, who imprisoned his person and his Nephew Alexanders, Bishop of Lincoln very strictly, seised all their magnificent Castles, Wealth, Treasures, & pined them with famine; so that this perjured Bishop for loss of his Castles or Treasures, fell distracted through grief, and died mad de perspicuo Dei judicio vitam longo tempore splendidissimam infelicissimo fine concludens ; as Neubrigensis observes.
King Henry the second succeeding Stephen, Ann. 1164. to suppress the usurpations of the Pope and Prelates on the Crown, summoned all the Bishops, Abbots, Priors, Ea • ls, Barons and Nobles of the Realm to a Parliamentary Great Council a • Clarindon, where they made a recognition of all the ancient Customs and liberties of the Realm, used in the reign of king Henry the first, which they all took a solemn Oath inviolably to preserve to the King and his heirs forever, and Archbishop Becket amongst the rest. The 11 Article was this: Archiepiscopi, Episcopy, & universae personae regni, qui de rege tenent in capite, habent possessiones suas de Domino Rege sicut Baroniam, &c. sicu • Barones caeteri debent interesse judiciis curiae Regis, (to wi • of his Court of Parliament, as the protestation of the Archbishop and Prelates in the Parliament of 11 R. 2. rot. Patl. n. 9.11. resolves it) cum Baronibus, quousque perveniatur in judicio ad diminutionem Membrorum vel ad mortem, An unanswerable authority tha • rhe Barons and Peers in Parliament, had anciently, in the reigns of Henry the 1. and 2. and long before, a judicial power even in criminal (as well as canonical) causes deserving loss of Member or death, and that as well in cases of Commons as Peers. It is observable that though according to this Article the Bishops in those days did not pronounce sentence, nor were not actually present at the giving of judgment by the other Barons in cases of blood; yet they took upon them the name of Barons, and were present on that account, at all the debates, in criminal causes, and gave their votes therein in our Parliamentary Councils, absenting themselves only from the sentence and execution, for which Petrus Blesensis Archdeacon of Bath under king Henry the 2. thus justly censures them.
These Articles of Clarindon were not only sworn to, but likewise subscribed and sealed by all the Bishops, except Archbishop Becket, who refused to sign or set his seal unto them, unless the Pope would first confirm them by his Bill. The King hereupon sent two Ambassadors to Rome unto the Pope, to crave his allowance of these Laws ; but Becket had so dealt with the Pope before hand (who knew the cause to be more his own than Beckets ) that he rejected the suit, and withal absolved Becket and the other Bishops from the Oath of allegiance they had taken to observe them. Whereupon the King being highly offended with Becket ; summoned a Great Parliamentary Council of the Prelates and Nobles at Northampton, wherein he demanded an account of 30000 l, which came to Beckets hands during his Chancellorship : which he excusing, and refusing punctually to answer unto, the PEERS and BISHOPS condemned all his moveables to the Kings mercy. After which the Lord's and Peers by joint consent adjudged him guilty of perjury, for not yielding temporal obedience to the King, according to his Oath taken at the Council of Clarindon, The Bishops thenceforwards openly disclaiming all obedience to him, as their Archbishop : The next day, whiles THE BISHOPS & PEERS were consulting of some further course to be taken with him, Becket caused to be sung before him at the Altar, The Princes set and speak against me, and the Ungodly persecute me, &c. And forthwith taking his silver Crosier in his hands (a thing strange and unheard of before) entered armed therewith into the Kings presence, though earnestly dissuaded from it by all who wished him well; wherewith the King being enraged, commanded the Peers there assembled in a Parliamentary Council, to sit in judgment upon him, as on a Traitor or perjured person; who accordingly adjudged him both a Traitor and perjured Rebel, and that he should be forthwith apprehended and cast into prison as such a one, and forfeit all his goods and temporalties. The Earls of Cornwall and Leicester, who SATE AS JUDGES, citing him forthwith to hear his sentence pronounced; he immediately appealed to the See of Rome, as holding them no competent Judges: Whereupon all the Prelates and Nobles reviling him with the name of Traitor and perjured person ; he replied, That were it not for his function, he would enter the duel or combat with them in the field, to acquit himself from Treason and Perjury. And so speeding away from them for fear of imprisonment, and disguising himself under the name and habit of Dereman, fled in a small Fisher boat into Flanders ; Thereupon the King seised all his goods and temporalties into his hands, and sent Ambassadors to the Earl of Flanders, the French King and Pope, praying them in no wise to suffer or foster within their Dominions one that was such a notorious Traitor to him.
The Proceedings against this Traitor Archbishop Becket.
In this Magnum et solenne Concilium held at Northampton, Anno 1165. being very memorable, and more fully relating the manner of our Parliamentary Process in that age, and the judicial jurisdiction and proceedings of the Lord's in Parliament, as well in civil as criminal causes than any other I have met with, I shall give you a more full account of them out of three of our Historians (who record the same) in their own words.
The first of them is Roger de Hovedrn, who thus relates the proceedings. Anno gratiae 1165. qui erat annus und • cimus Regni Henrici Regis, idem Rex Henricus Magnum congregavit Concilium, apud Northampton, ubi Rex taedium magnum fecit, Thomae Cantuariensi Archiepiscopo. Imprimis enim fecit Rex equos suos hospitari in hospitiis illius: Sed Archiepiscopus mandavit Regi, quod ipse AD CURIAM NON VENIRET, DONEC hospitia sua vacuarentur ab equis & hominibus fuis. In chrastino Colloquii venit Thomas Archiepiscopus AD CURIAM REGIS in capella ejus, & statim petiit ab eo licentiam tranfretandi ad Alexandrum Papam, qui ea tempestate moram faciebat in Francia, sed habere non potuit. Dixit enim ei Rex; tu prius respondebis mihi de injuria quam fecisti Johanni Marescallo meo in Curia tua. Conquestus enim erat regi idem Johannes, quod cum calumniatus osset in Curia Archiepiscopi terram quandam de illo tenendam jure hereditario, & diu inde placitasset, nullam inde potuit assequi Justitiam; & quod ipse curiam Archiepiscopi Sacramento falsificaverat secundum consuetudinem Regni. Cui Archiepiscopus respondit: Nulla justitia defuit Johanni in curia mea, sed ipse (nescio cujus consilio, an proprae voluntatis motu) attulit in Curia mea quondam toper, & juravit super eum, quod ipse pro defectu justitiae a Curia mea recessit: Et videbatur Justiciariis Curiae meae, quod ipse injuriam mihi fecit, quia sic à Curia mea recessit; cum statutum sit in regno vestro: Quod qui Curiam alterius falsificare voluerit, oportet eum jurare super sacrosancta Evangelia. Rex quidem non respiciens ad verba haec, juravit, quod ipse haberet de eo ju • titiam & judicium▪ Et Barones Curiae Regis judicaverunt eum esse in misericordia Regis. Et quamvis Archiepiscopus niteretur judicium illud falsificare, tamen prece & consilio BARONUM posuit se in misericordia Regis de quingentis libris, et invenit ei inde fidejussores. Et sic a Curia recedens, ad hospitium suum ivit, & propter taedium & dolorem quam in animo conceperat decidit in lectum, & in gravem aegritudinem. Quod cum Regi constaret, ut eum magis affligeret, statim misit ad eum, et summonuit eum per bonos summonitores, quod in crastino venisset, paratus reddere illi rationem villicationis sua, quem habuit in regno suo ante consecrationem suam. Archiepiscopus autem sciens, quod grave ei immineret exterminium, si in Curiam venire properasset, modis omnibus dilationem quaesivit: tum quia tempus sommonitionis brevissimum erat, tum quia ipse graviter infirmabatur. Cumque Rex vidisset quod Archiepiscopus non veniret ad diem illum, misit ad eum Robertum Comitem Leicestriae, & Reginaldum Comitem Cornubiae, ad videndum aegritudinem illius. Qui cum venissent, invenit eum in lecto jacentem infirmum; et ad petitionem illius dederunt e • respectum veniendi ad Curiam usque mane. Eodem die dictum erat ei, et nunciatum a familiaribus regis, quod si ipse ad Curiam Regis venisset, vel in carcerem mi • teretur, vel interficeretur. Super his igit ur Archipraesul habito cum suis familiaribus consilio, per consilium cujusdam Sapientis, in crastino antequam ipse ad curiam pergeret, cum summa de • otione celebravit Missam de S. Stephano protomartyre; cujus officium tale est, Etenim sederunt Principes, & adversum me loquebantur, &c. causam suam Judici, qui Deus est, commendavit. Tamen pro celebratione Missae illius graviter accusatus fuit postmodum à Gileberto Londonensi Episcopo, quod Missam il • am celebraverat per artem magicam, & in contemptu Regis. Itaque post celebrationem Missae Archiepiscopus imposuit collo suo stolam, deinde induit cappam nigram canonicalem, et profectus est statim ad Curiam Regis. Et statim factus est undique magnus concursus populi, ut viderent finem. Ipse autem portebat crucem suam in manu sua dextra, cum sinistra veto tenebat loram equi, in quo sedebat: et cum venisset ad aulam Regis, descendit, & ipse crucem suam bajulans, intravit domum Regis. Deinde intravit exteriorem cameram solus portans crucem suam: nullus enim suorum sequebatur eum: & cum intrasset, invenit plebem multam in ea, seditque inter illos. Tunc venit ex parte Regis ad Archiepiscopum Gilbertus Londinensis Episcopus, qui multum increpavit eum, quod sic cruce armatus venit in Curia: & voluit crucem e manibus suis eripere, sed Archiepiscopus fortius eam tenuit. Henricus igitur Wintoniensis Episcopus dixit Londinensi Episcopo, frater, demitte Archiepiscopum crucem suam tenere, ipse enim debet illam been portare. Tunc Londoniensis Episcopus multum iratus adversus Wintoniensem Episcopum, dixit ei▪ m • le locutus es, frater, et malum inde tibi contiget, quia contra Regem locutus es. Deinde venit ad eum Rogerus Archiepiscopus Eboracensis, &c. qui plurimum increpabat eum, quod sic armatus Cruce ad Curiam veniret: dicens, quod Rex gladium habebat acutiorem; & ideo si consilio suo acquiesceret, tolleret crucem suam. At quidam de circumstantibus sic ait:
Crede mihi, si credis ei, tu decipieris.
Fistula dulce cannot volucres dum decipit auceps.
Impia sub dulci melle venena latent.
The 2d. is William Fitz. Stephen, a Monk of Canterbury who attended Becket in his troubles. He after a large relation of the charge of John the Kings Marshal against him for injustice, mentioned by Howden, relates the difference then happening between the Ecclesiastical and Temporal Barons in giving judgment against him, and the judgment itself, and proceedings therein in these words.
The 3d. is Gervasius Dorob • rnensis, who thus records the proceedings in this Council against Becket :
King Richard the 1. Anno 1189. going to the holy Warrs, made William Longchamp Bishop of Eli, not only his Chancellor and Chief Justice, but the chief Protector and Guardian of the whole Realm; who having obtained a Legatine Power also from the Pope, and getting the Militia, with most of the Kings Castles into his hand, proved a most unsufferable Tyrant to the Nobility, Gentry, Laity and Clergy, so oppressing, domineering over their persons, Liberties▪ Estates, imprisoning, taxing, disseising, spoiling them of their Offices, Castles, Lands, Privileges, Estates at his pleasure, and over-awing them with Troops of Horse, Garrisons & New Governors set over and quartered in every County, and with his great Guards of armed horse which he constantly kept about his person, that Earl John the Kings brother, the Nobility, Prelates and People, being no longer able to endure his exorbitant insolency, intolerable Pride, Oppressions, Rapines, Exactions, and transcendent Tyranny, raised great forces against him, to regulate his Excesses, and bring him to Justice. Whereupon he being somewhat terrified in the 2. year of King Richard the 1. Anno 1191. Earl John, and the Bishops, with the Prelates, Earls, and Nobles of the Realm, assembled in a kind of Parliamentary Council, came to an agreement touching the future settlement, reformation, Peace and Government of the Realm, and preventing all future tyranny and oppression; which was drawn up in writing, published, subscribed and sworn, to be inviolably observed both by the Earl John and Chancellor, and by 14. other Earls and Barons on either side. One of the Articles of this Agreement (recorded at large by Roger de Howden ) was this: Concessum est, quod Episcopy & Abbates, Comites & Barones, Vavasores et liberi tenentes, non ad voluntatem Justiciarium vel Ministrorum Domini Regis, de terris & catallis suis disseisientur, sed judicio Curiae domini Regis, secundum legitimas consuetudines et Assisas Regni tractabuntur, vel per mandatum domini Regis: (agreeable to Magna Charta, c. 29.) No sooner had the Chancellor taken his Oath, but his foreign forces he had privily sent for arriving in England, he presently violated it, and played the Tyrant worse than before, commanding the Kings own Brother Geoffrey, Archbishop of York, to be apprehended at Dover in the very Church, dragged out violently in his Archiepiscopal robes from the Altar, and then thorough the dirty streets in the sight of all the people, who cried out after the Chancellors servants, who thus abused him. O ignavi! quare ita ducitis illum, quid mali fecit? Archiepiscopus est, & Regis filius, Regisque frater: But they taking no notice of their clamors, carried him to Dover Castle ▪ and there kept him Prisoner, till he was thence released by Earl Johns command. The Archbishop coming to London complained to Earl John, the Bishops, and other Nobles of the injury done to him by the Chancellor: ut Cancellurius juri staret in CURIA REGIS super injuria illa, quam Archiepiscopo Eboracensi fe • erat, et Hugoni Dunelmensi Episcopo. Quod cum ipse Cancellarius facere de die in diem distulit, Eodem tempore ad instantium Comitis Johannes, Convenerunt apud pontem de Loedone inter Radingum & Wyndleshores, die Sabbathi p • oxime post festum Sancti Michaelis ad Colloquium MAGNATES ANGLIAE, de arduis & magnis Regis & regni negotiis tractaturi. The next day the Archbishop and Bishops who all came to this Parliamentary Assembly) meeting at Reading, excommunicated all those who were aiding and assenting to the imprisonment of the Archbishop: After which, Comes Johannes, & Archiepiscopus Rothomagensis, & Episcopy & Principes Regni, statueru • t illi diem peremptorium apud Ridinges. Ad diem autem illum venerunt illuc COMES Moretonii, & fere omnes Episcopy & Comites & Barones Regni; Et post diem peremptorium moram fecerunt ibi expectantes adventum Cancellarii: sed ipse venire noluit, nec nuntium mittere. Deinde Comes Johannes et Episcopy, & Barones qui cum eo erant paraverunt se Londoni • s ire, ut ibi in Major • audientia Londinensium fruerentur consilie, quid eis faciendum esset de Cancellario, qui sic conturbaverat regnum & juri stare noluit. The Chancellor hereupon flying from Windeshores into the Tower of London for shelter: Comes Johannes, & fere omnes Episcopy, & Comites & BARONES Angliae, eadem die (scil. 3. die post octavas Sancti Michaelis) intraverunt Londonias: Et in crastino praedistus Johannes frater Regis, & Archiepiscopus Rothomagensis, & omnes Episcopy & Comites & Barones (& cives Londinenses cum illis) convenerunt in atrio Ecclesiae Sancti Pauli: (where sitting together as in a Great Parliamentary Council and Court) post longos tractatus Ricardo regi fidelitatem juraverunt. Imprimis Comos Johannes, deinde duo Archiepiscopi, et omnes Episcopy, & quotquot convenerunt Comites & Barones. Deinde die Jovis proximo habitum est Colloquium in Orientali parte turris Londinensis, praesentibus MAGNATIBUS praedictis. Accusabant praedictum Cancellarium in multis, & praecipue in injuriis quas fecit Domino Eboracensi Archiepiscopo, & Domino Dunelmensi Episcopo. Socii autem praedicti Cancellarii, quos Rex associaver at illi in regimine regni, accus • bant eum in multis: dicentes, quod ipse spretis illorum consiliis omnia negotia regni cum impetu, & voluntaria dispositione faciebat. Archiepiscopus vero Rothomagensis, & Wilhelmus Marescallus Comes de Strogoil, ostenderunt coram populo literas Domini Regis figillatas: per quas Dominus Rex mandavit à Messana, quod ipsi associarentur Cancellario in regimine regni, ut et Cancellarius sine illorum consil • o & aliorum assignatorum nihil de nego • io regis, ac regni tractaret, et ut praedictus Cancellarius, si ipse quod • unque • n detrimentum Regni, vel sine consil • o praedictorum fecisset, deponeretur, et loco illius institueretur Rothomagensis Archiepiscopus. Placu • ergo Johanni fratri Regis & omnibus Episcopis et Comitibus, et Baronibus Regni (as Judges) & civibus Londoniarum, (which Matthew Paris and others mention not, but only Howden, and that as auditors, spectators and approvers of their Sentence) quod Cancellarius ill deponeretur, et deposuerunt eum, & in loco ill • us instituerunt Rothomagensem Archiepiscopum, qui nihil operari voluit in regimine regni, nisi per voluntatem • t assensum Sociorum suorum assignatorum, & per Consilium Baronum Scaccarii. Hugh de Nuvant Bishop of Coventry in his Epistle, de Dejectione Eliensis Episcopy Regis Cancellarii : writes of him, that by reason of his intolerable Tyranny and Oppression: Per totam insulam a Laicis publi • e proclama • ur: Pereat qui perdere cuncta festinat: opprimatur ne omnes opprimat: and then thus relates the manner and grounds of his deprivarion. Mane ergo habito Concilio cum omnibus fere Magnatibus Regni, praesente Domino. Johanne fratre Regis. & Rothomagen • i & Eboracensi Archiepiscopis Episcopis et prusentibus Dunelmensi, Londinensi, Wintonensi, Bathoniensi, Ronensi, No • wice • si, Linco • niensi, Herefordensi, Menevensi, Coventrensi, factoque Consilio coram omni populo totius Civit • tis, praesen • • ustu • a • is D • mini Regis & apprebantibus Consilio universorum statuitur, ne talis de cae • ero in Regno Angl • ae a • mine • ur, per qu • m Ecclesia Dei ad ignominiam, & populus ad inopram erat redactus: ut en • m caetera omi • tam, ipse et ganeones sui totum regnum exhauserant, nec viro baliheus, nec foeminae monile remans • t, nec annulus nobili, nec quodlibaet preciosum etiam alicui Judaeo. The saurum quoque Regis exaninaverat prorsus, ut in omnibus scriniis vel sacellis nihil praeter claves de toto illo biennio posset inveniri. They likewise made him take a solemn Oath to deliver up all the Kings Castles to them, and to give pledges to perform it, and banished him the realm. Deinde praedicti Justitiarii et omnes Episcopy et Comites & Barones Angliae in communi scripto mandaverunt Regi, qualiter Cancellarius suus regnum Angliae, & the sauros suos destruxerat, ot qualiter ipse per Commune Concilium regni ejectus est. To which Gulielmus Nub • igensis subjoins.
In the year of our Lord 1193. Earl John conspiring with the French King to deprive king Richard his brother of his Crown, kingdom, and Dominions, seising many of his Castles beyond the Seas, (proffering the Emperor great • ums of money not to release him, being then his prisoner,) and endeavoring to get possession of the Realm of England, Anno 1194.
The Pope in the year 1208. having interdicted the whole Realm of England, King John thereupon fearing that he would likewise excommunicate him and absolve his Nobles from their Allegiance to him; to preserve his royalties, sent a Company of armed Soldiers to all the Potent Nobles of the Realm, and especially to those he suspected, exacting Hostages from them, that so if they should afterwards be absolved from their allegiance, he might reduce them to due obedience. Many submitted to the Kings commands, and delivered some their Sons, others their Nephews, others their Kinsmen for hostages to the Messengers. Who at last coming to William de Brause a Noble man, and requiring pledges from him as they had done from others, found a repulse. For Matilda his wife out of a womanish procacity, taking the word out of her husbands mouth, answered the Messengers: I will not deliver my children into the hands of your Lord King John, because he most dishonourably slew his Nephew Arthur, whom he ought to have honourably kept and preserved. Which her Husband hearing, rebuked her, saying; That she had spoken like one of the foolish women against our Lord the King; for if I have offended him in anything, I am and will be ready to answer my Lord, and that without hostages, SECUNDUM JUDICIUM CURIAE SUAE ET BARONUM PARIUM MEORUM assignato die & loco. The Barons in that age being to be judged and tried only by their Peers, and that in the Kings Court of Parliament, for any offenses against the King; not by the Commons or any inferior persons.
In the year of Christ 1233. King Henry the 3. removing most of his English great Officers and Counselors from his Court, and placing Poic • o • es and Aliens in their room, by whole Counsel he was wholly sw • yed & misguided (especially by Peter de Rivallis )
Anno 1234. Rex Anglorum venit ad COLLOQUIUM apud Westmonasterium in Purificatione beatae Mariae, in quo quosdam Episcopos & maxim Alexandrum Cestrensem Episcopum, graviter increpavit de n • mia familiaritate Comitis Mareschalli, & quod ipsum a regni s • lio depellere nitebantur. Episcopus autem ill, Pontificalibus indutu, cum talia sibi objecta cognovisse • , ne • non quosdam qui Regi suggesserant exasperando; Episcopos foventes partes Mareschalli, velle alium Regem erigere, commotus est vehementer. Excommunicavit igitur in continenti omnes qui contra Regem iniquitatem hujusmodi sceleris cogitabant, vel super Episcopos, qui omnino de salute & honor regis sollicitabantur, malitiose talia imponebant. Et sic manifestata Episcoporum ac probata innocentia, confusis discordiae seminatoribus, siluit legista ( Rogerus de Cantelu ) ab anathemate ut videbatur, non immunis. Sic igitur intervenientibus Episcopis, qui aderant, pacificatus est Alexander Cestrensis Episcopus, & quievit spiritus illius nimis ante amaricatus. Affuit quidem hinc COLLOQUIO Magister Aedmundus Cantuariensis Electus, cum multis Episcopis suffraganeis, qui omnes Regis, & Regni desolationi condolentes, venerun • ad Regem, & quasi uno cord, animo et ore dixerun • :
On the 5 of April following, Convenerunt ad COLLOQUIUM apud Westmonast. REX CUM COMMITIBUS ET BARONIBUS, & Archiepiscopus nuper consecratus, cum suis suffraganeis, ut regno perturbato salubriter providerent, Archiepiscopus quidem conjunctis sibi Episcopis, accaeteris qui aderant Praeclatis, ostendit ei consilium suum & Episcoporum, super desolatione regni, & periculo imminenti, replicando suprascripta incommoda, in COLLOQUIO superius habito sibi expressa. Denunciavit etiam ipsi express, quod nisi celerius errorem dimitterei, & cum fidelibus regni sui pacifice componeret, ipse in continenti cum omnibus qui aderant Praelatis, IN IPSUM REGEM SENTENTIAM FERRET EXCOMMUNICATIONIS, & in omnes alio • hujus pacis contradictor • s et concordi • perversones.
I have transcribed this History, and these Parliamentary proceedings at large out of Matthew Paris. First, to manifest the Gallantry, Courage, Zeal, Vigilancy, Unanimity of our Nobles, Lord's, Barons, and Prelates in that age, in opposing, reprehending the King himself to his face, and threatening to depose and excommunicate him, both in and out of Parliament, for entertaining foreigners and ill counsellors about him; neglecting, hating, banishing his own Nobles and natural Subjects as Traitors, without any just cause or legal trial, and subverting, confounding their Laws, Liberties, Justice, &c. 2ly, To manifest the proceedings, impeachments in these Parliaments against the Earls and Nobles refusing to appear at these Parliaments upon the Kings these successive Writs of Summons; his outlawing them of high Treason, and spoiling, burning, seising their houses, Lands thereupon, being adjudged by the Lord's in Parliament, to be illegal and afterwards reversed as unjust and against the Law, Claus. 18. H. 3. m. 19. 3ly, To manifest, that the Lord's in Parliament would not act anything in the absence of these eminent Lord's refusing to appear. 4ly, To evidence the Sentence and Justice of the King and Lord's, against these ill Counselors, Aliens and Traitors to the Public, whom they caused to be removed from the King, Court, Kingdom, put from their public Trusts and Offices, called to an account, publicly arraigned before the King himself and his Justices; by whom they were imprisoned, their lands confiscated, and better Counselors of State and Judges put into their places.
Anno 1240. Accusatus est graviter Comes Cantiae Hubertus de Burgo CORAM REGE ET CURIA TOTA London : ubi post mult • s disceptationes, ut ira • undia Regis, quae immoderate nimis con ••• ipsum excanduerat, quiesceret, ADJUDICA • UM EST, ut quatuor Castra sua Charissima (scilicet Blancum Castrum, Grosmunt, Scenefrithz, & Haetfeild) Domino Regi • resignaret, ut caetera sibi cum Regis benevolentia in pace remanerent.
Anno 1258. The Nobles complained in Parliamnnt of the Kings advancing his half Brothers, who were aliens, swaying all things, and impoverishing the Realm, and of their intolerable pride, insolency, and injuries; and the Earl of Leicester particularly complained to the Parliament of William de Valentia; non tam • n Regi sed universitati praecordialiter est conquestus, exigens instanter sibi justitiam adhiberi. The same year the Great men and Nobles of the Land, Videntes Regnum undique desolatum, tum exactionibus & tallagiis tam Curiae Romanae quam Regis, quam etiam alienigenarum, & praecipue Pictavensium elatione praesumptuosa, fivore regio in regno nimium in sublimi provecta, tantas in Anglia Dominationes sibi usurpantium & magisteria, • ost Pentecosten apud Oxford. COLLOQUIUM GENERALE CELEBRAVERUNT (being summoned to this Parliament by the Kings Writ) super hiis, necnon & status regni melioration • efficaciter & exquisite tractaturi. Quo non sine armis & equis electissimis muniti venerunt, ut si Rex & alienigenae sui • provisionibus, & statutis sponte contemnerent assentire, vigore opposito cogerentur, aut ipsi alienigeni universaliter, sine morae regnum Angliae poenitus evacuarent, Quas quidem provisiones Oxford. & stat. necnon ET MAGNAM CHARTAM TAM DE LIBERTATIBUS ET DE FORESTA; tandem Domino Rege ad suorum PROCERUM observantiam statutorum inclinato, per quēdam de suis militibus tactis sacrosanctis juramētum praestante, 24 prudentium virorum & Nationis Anglicanae, quos ad Regni gubernationem sub eodem duxerint inter se eligendos, consilio se commendavit & consideration • . His igitur p • ractis fidelitatem Regi & regni ET AD CONSIDERATIONEM SUORUM PARIUM STARE omnes, quotquot in regno commorare vellent, fecerunt jurare The Nobles in this Parliament required, that all the Poictovines might surrender up all the Castles they held in England into the Kings hands; Whereupon they peremptorily swore by the passion and wounds of Christ, that they would never do it whiles they breathed. Whereupon the Earl of Leicester said to William of Vairencia, the most insolent of them all, That he should either surrender up the Castles he held of the Kings, without delay, VEL CAPUT AMITTERET on he should lose his head. Similiter ALII COMITES ET BARONES DICEBANT etiam constructissime assertione consistentes. The Poictovines being very much terrified with these words; not knowing what to do, and fearing to fly to any Castle, lest they should there be besieged and soon taken or starved by the Lord's, fled secretly and speedily from the Parliament to Winchester ; not sparing their horses sides, and setting spies upon hills and Towers to observe whether the Barons pursued them; who hearing of their flight, commanding all their followers to arm themselves, and dissolving the Parliament, without adjourning it to any certain day, pursued them to Winchester ; where the King and Nobles holding another PARLIAMENT, the Poictovines JUDIDIUM EXPECTARE NOLENTES, nec ausi exhibitionem JUSTITIAE, quae singulis secundum juramentum REGIS & PROCERUM debebatur expestare (being the sole judges of them in Parliam. for their exorbitant offenses) they presently fled out of the Realm beyond the Sea, to avoid their sentence. Hereupon
Anno 1260. There falling out a great difference between King Henry the 3. and Prince Edward his Son: Simon Earl of Leicester and other Nobles; thereupon,
Anno 1261. Prince Edward returning out of France, brought. William de Valentia the Kings Brother-in-law with him, lately banished out of the land, who could then scarce obtain any admission into it, but upon this condition,
Anno 1264. Richard King of Romans, Prince Edward the Kings eldest Son, caterique BARONES OMNES ET NOBILES praedicto regi Angliae constanter sincerae fidei & devotionis operibus adhaerentes, in their memorable Letter and answer immediately before the battle of Louis, Simony de Monte forti, Gilberto de Clara, caeterisque universis & singulis perfidiae suae complicibus ▪ who accused them of giving neither good nor faithful Counsel to the King, in their Letter then sent to them, write thus, in order to a legal trial in the Kings Court of Parliament by their Peers. De hoc autem quod falso nobis imponitis, quod nec fid • le, nec bonum consilium regi Domino vestro damus, nequaquam verum dicitis. Et si vos, domine Simon de Monte forti, vel Gileberte de Clara, velitis hoc idem IN CURIA DOMINI REGIS ASSERERE, parati sumus securum veniendi ad dictam CURIAM procurare conductum, & nostrae super hoc innocentiae veritatem, & vestrum sicut PERFIDORUM PRODITORU • M mendacium declarare per ALIOS (misprinted in some Copies alium) NOBILITATE ET GENERE VOBIS PARES (not parem ) relating to that of Magna Charta, c. 29. Per legale judicium PARIUM SUORUM, by which Peers only are legally triable.
In the year of our Lord 1265, being the 49 year of Henry the 3 his reign, the Earl of Leicester, Simon de Montefort, and sundry other of the Barons being slain, and the rest of them totally routed in the Battle of Evesham by Prince Edward ; thereupon the King being rescued out of their hands, and restored to his royal authority, summoned a Parliament at Winchester on the Nativity of the blessed Virgin. In which Parliament, REX ET REGNI MAGNATES ORDINARUNT (as Mat. Westminster relates) quod di • iores Civitatis Londinensis, in carcerom truderentur; quod Cives & Civitas Londinensis (Nota) suis antiquis Privilegiis & libertatibus privaretur OB SUAM REBELLIONEM: & quod stipites & cathenas quibus Civitas fuerat roborata, de medio tollerentur, PRO EO QUOD Simony de Montiforti, Comiti Leicestriae IN REGIS CONTEMPTUM, ET ETIAM DAMNUM REGNI FORTITER ADHAESERANT. Capitunei etiam factionis contra Regem, juxta voluntatem ejus pl • ctendi, carcere manciparentur. Quod & totum factum est. Nam & potentiores Civitatis, apud Castrum Windesoram Carceri fuerunt mancipa • i, qui post modo poena pecuniaria, ad summam non modicam mulctabantur. Libertas fuit civibus interdicta, & Turris London per stipites & Cathenas Civitatis forti • r facta, Post ho • aprid Westmonasterium in festo Translatio • is Sancti Edwardi, there was another Parliament held at London summoned by this Writ yet extant on Record.
Henricus Dei gratia Rex Angliae, &c. Cum post gravia turbationum discr • minadudum habita in regno nostro, Carissimus filius Edwardus primogenitus noster, pro pace in regno nostro assecurenda, et firmanda obses traditus extitisset, et jam sedata, (Benedictus Deus) turbatione praedicta, super deliberatione ejusdem salubriter providenda, et plena securi • a • e et tranquillitate pacis, ad hono • em Dei, & utilitatem totius regni nostri firmanda, et totaliter complenda, ac super quibusdam aliis regni nostri nego •• is quae sine Consilio vestro et aliorum Praelatorum et Magnatum nostrorum nolumus expediri, cu • eisdem tra • tatum nos habere oportet; Vobis mandamu • rogantes in fide et di • ectione, quibu • Nobis tenemini • quod omni occasion postposita, & negotiis aliis praetertermissi • ad Nos Londoniis. &c. Nobiscum et cum Praedictis Praelatis et Magnatibus nos • ris, quos ibid. v • c r • cimus supe • praemi • is istis trac • a uri▪ et Consil. impensuri. Et hoc sicut, Nos et honorem nostrum ac ve •• rum necnon et communem regni nostri tranquillitatem diligitis, nullatenus omittatis. The Teste of this Writ to the Bishops, bears date of Winchester (where the former Parliament was held) Decemb. 14. the Writs to the temporal Lord's. Abbots and Peers b • ar date at Woodstock the 24 of this Month; there being no less than 64 Abbots, 36 Priors, the Master of the Temple, and 4 Dears of Cathedral Churches summoned thereunto, besides Knights and Burgesses now first summoned to that Parliament to settle peace, most of them being VOLUNTARIE SUMMONITI, and not bound of right to come, not holding of the King by Barony. In this Parl. by judgment of the King and Lord's SENTENTIA EXHAEREDATIONIS IN REGIS ADVERSARIOS FEREBATUR; '& omnes qui contra Regem cum Comite Simony 'steterunt; exhaeredicabantur; quoram terras Rex suis sideli bus tradidit sine • mora, pensatis meritis singulorum. The Execution of this Sentence appears in the Patent Roll of 50 H. 3. m. 10. Schedula. Where the Lands and Menors of Simon de Montfort and other Rebels adhering to him against the King, are confiscated to the King, and granted by him to sundry others there mentioned; as the Lands of the Barons adhering to King Lewis against King John their native Sovereign, were in like manner forfeited to and granted by him, Claus. 17 Johan. Regis, dors. 7, 10, 11. By these two last Parliamentary presidents and proceedings against the Londoners, Simon Montfort, the Baron • , and a • other his Confederates whether Peers or Commoners in case of Treason and Rebellion against the King, to the forfeiting of their ancient Customs and Liberties, imprisoning and fining of their persons confiscation of their goods disinheriting them of their Lands and Freeholds, by judgment and • entence of the King and Lord's, it is undeniable, that the King and Lord's have an ancient undoubted right to judge and censure both Peers and Commoners too in Parliament, in cases of Treason and other misdemeanors there properly triable.
In the year 1266. King Henry the 3d. & REGIONIS NOBILES assembling together at Westminster at Christmas, to treat about settling the Peace of the realm after the accustomed manner, there issued out an Edict against Earl Ferrers, who was perpetually depri • ed of his Earldom according to the form of his Obligation, (for his Treason and rebellion against the King) and Edward the Kings son was put in possession of two Counties (or Earldoms) to wit, Derby and Leicester. The same year after divers skirmishes between the disinherited Baro • s and persons, and the Kings forces; to settle a firm peace upon the Legates motion there was another Parliament held at Kenelworth, wherein by the accord and consent of the King and Lord's, the persons disinherited, whose Lands the King had confiscated for their Treason and Rebellion in the two former Parliaments, were notwithstanding admitted upon their submission to the King, for reasonable fines and compositions, (reduced to a certainty by Bishops, and other Lord's Commissioners) both to their Pardons, Liberties, Charters, and Inheritance • , 3. only exc • pted ; their fines not exceeding 3. years value, nor to be under one ; without any imprisonment, or loss of Member • : as you may read at large in the accord between them and the King at Kenelworth printed in the Statutes at large. See Par. 50 H. 3. dors. 9. the Patent Charter and Claus. Ro • s of 50, 51, 52, 53. of Henry the 3. and Claus. 4 E. 1. m. 15. d • rso.
In the Parliament of 21 E. 1. John Archbishop of York was impleaded and complained against for excommunicating the Bishop of Durham being juxta latus Regis per ipsius praecep • um, against the dignity of the King; and for imprisoning William of Willicon, and John Rowman, two of the Bishops servants, in the Castle of Durham, being excommunicated by him in his Ecclesiastical Court, for the Wardship of certain Lands to which the Archbishop pretend • d a Right; the Custody of which lands being a Temporal matter, belonged not to Ecclesiastical cognizance. The Archbishop protes • ing, that although he ought not to answer for this matter in the Court of our Lord the King, yet he was willing to answer: And thereupon allegeth, that the Bishop of Durham was his Subject and Suffragan; and shows the whole matter and manner of the proceedings against him and his Servants in his Court, and justifies the same. To which Richard de Breelwell who prosecuted for the King, answered, that the Bishop of Durham was to be considered in a twofold estate, one as a Bishop, the often as an Earl, in respect of his Temporalties and Tenements: In which l • ter respect he was not subject to his Archiepiscopal Jurisdiction; to which the Archbishop replied. After much and • ong debate, it was adjudged and resolved by the Lord's, in Parliament▪ that for this offense, the Archbishop should be committed to prison : and likewise agreed▪ that in like cases it should ever be so: this his Excommunication of them in his Ecclesiastical Court for a temporal matter: being an high contempt against the King, to the disinherison of his Crown and dignity. Moreover, he was adjudged to make his submission to the King, and to pay a fine of 4000 maerks to the King for this offense. The Archbishop hereupon makes his submission; aend after much mediation to the King by his friends, his imprisonment was remitted, but the King would not abate one penny of his sine, for the due payment whereof, he was enforced presently to enter into a Recognisance ; and so dismissed. The Record is very long, worthy perusal, but this is the summary of it.
Anno 1283. after the feast of St. Michael in PARLIAMENTO tento Salopiae, David quondam frater Lewlini Principis Walliae, per Potentiores Angliae judicatus, judicialiter condemnatus, ad caudas equorum per municipium Salopiae, tractus et suspensus est, visceribus{que} combustis, corpus capite truncatum, & in quatuor partes est divisum, quibus in Civitatibus Angliae Nobilioribus suspensis, caput Londoniis super palum fixum est, ad terrorem consimilium proditorum.
King Edward the 1. Ann. 1297. the 14. of his reign holding a Parliament at St. Edmond's, where there was granted him an 8. part of the goods of Cities and Boroughs, and a 12. part of the rest of the people: the Clergy by reason of the Constitution of Pope Boniface made that year, prohibiting under pain of Excommunication, that no Taxes nor exaction • should by any means be exacted from the Clergy by secular Princes, or paid by them of the goods of the Church, denied the King a Subsidy which he demanded of them to maintain his wars. Whereupon the King that they might deliberate of a better answer, deferred the business to another Parliament to be held at London the next day after St. Hillary, An. 1298. The Parliament then assembling, the Clergy therein persisted in their denial of a Subsidy, upon the foresaid ground; The King thereupon (by his Nobles advice) excluded them from his protection, and prohibited any Lawyers to plead for them in the Exchequer or before any other Regular Judge, as being unworthy of his peace, and seised all the goods, movables and immovables of Clergy men found in Lay fees, and confiscated them. To redeem which Protection many of the Clergy by themselves, and many by Mediators afterwards gave the King a fifth part of their goods. The King finding the Archbishop more rigid than the rest, seised all his lands, and commanded all his debts found in the Rolls of the Exchequer to be speedily levied on his goods : For the same Archbishop by the assent of the Clergy had procured from the Pope an Inhibition; Ne quis Clericorum Regi respiceret, de bonis Ecclesiae. The Clergy being thus put out of the Kings Protection, and thereby disabled to sue, or sit in Parliament, were secluded the Parliament house, the King holding the Parliament with the Temporal Lord's and Commons alone, and making valid, good Acts and Ordinances therein in this case without the Clergy, as Bishop Jewel M. Crompton, Dr. Bilson and others affirm; which Dr. Standish averred he might lawfully do before the Kings Council and a Committee of Lord's and Commons, in the Parliament of 7 H. 8. Keilwayes Reports, f. 184. b. Sir Edward Cook being of the self • ame opinion in his 4 Institutes, p. 25. citing other Presidents of this kind to prove, that Acts may be made without the Bishops, as 15 E. 2. Exilium Hugonis le Dispenser. 3 Rich. 2. c. 3.7 Rich. 2. c. 12.11 R. 2. n. 9, 10, 11. 21 R. 2. n. 9, 10. 1 H. 5. c. 7.6 H. 6. n. 27.
Peter de Gaverston a de • oi • lascivious person▪ for his misdemeanors, and corrupting Prince Edward, with whom he was educated from his infancy) in the year 1306 in a Parliament then held by King Edw. the 1. assensu Communi Procerum, fuerat exilio penpetuo condemn • tus. This King was no sooner dea • , and the Crown descending to King Edward the 2. but he presently recalled Gaverston from his exile, against the will of the Lord's, made him Earl of Cornwall, and gave him the Isle of Man : An. 1307. the very first year of his reign. He being more high in the Kings favo • r, more glorious in his apparel, and insolent in his behavior than any other; thereupon, Anno 1309. Regni Proceres et Nobiliores viden • es se contemni, & Petrum de Gave • on cunctis anteferri, access • runt ad Regem, humiliter rogantes, ut Baronum suorum vellet consiliis tractare Regni negotia, quibus a pericu • sibi imminentibus non solum cautior, sed t • tior esse possit. Quorum votis facie tenus Rex annuit • Parliamentum Londini institu • t fiori, ad quod omnes qui interesse debebant (mark it) venire mandavit. The Parliament there assembling Anno 1310. Decreto Parliamenti, ad Baronum instantiam, Petrus de • Gaver • on in Hyberniam, Exilio relegatur. No sooner was the Parliament ended, but the King caused special writs to be written and sealed in his own presence, for recalling Gaverston from his exile, and restoring him to his Lands ; which writs he took into his own hands for a time, and then sent them to the Sheriffs, with special command to see them duly executed, under grievous penalties, In these Writs he recites, that Monsieur Piers de Gaverston Earl of Cornwall, was of late exiled out of ou • Realm, against the Laws and Vsages of the said Realm, which he was bound to keep and maintain by the Oath he took at his Coronation. For which cause he did out of that common right and justice which was due to all his Subjects, recall and restore him, without the Lord's, against their wills; as the writs in the Clause Rolls inform us. Thomas of Walsingham thus relates the manner of it, and ill consequence thereof to Gaverstons ruin, in these words.
Anno 1311. post natale rumore vulgato de Petri reversione,
In the 15 year of King Ed. 2. the two Sir Hugh Spencers Father and Son, were articled against, impeached and condemned of High Treason by the Lord's in Parliament, and exiled by their judgment, without the Prelates or Commons, who only consented to the Act for their banishment after the judgment given, of which at large before; to which I shall here annex the Arricles of their impeachment being very memorable.
Alhonnour de Dieu & de saint esglise, et de nostre seignour le roy, et au profit de luy, et de son royalm • , & a peace de quiet maintenir en son people, et pur meinteynment de lestate de la Corone, luy monstrent Prelates, Coun • z, et Barons, et les autres Pieres de la terre, & common du royalme contresir Hugh le Despenser le fitz, et Sir Hugh le Despenser le Pier, que come le dit sire Hugh le Despenser le fitz au Parlement Deverwike fuit nosme et assentu destre en lossice du Chamberlain nostre seignor le roy de servir en cel office, come afferoit: An quel parlement fuit auxi assentu, que certeins Prelates et • u res Grandes du roialme demorerent pres de roy par s • isons de lan, pur meulx counseiler nostre seignor le roy, sans queux nul gross bosoigne ne se deveroit fair: le dit sir Hugh le fitz attreit a luy syr Hugh son pier, que ne fuit nient assentu ne accord en parlement, a demourer ensi pres de roy, & enter eux deux, acroachant a eux royal power sur le roy & fes ministers, & le guyment de son royalme, a dishor our du roy, emblemisement de sa corone, et destruction du royalme, des grandes et du people, et sesoient les maluesiees des • us escriptes en compassant de •• oigner le coer nostre seignour le roy des Piers de la terre pur avoir eux soul governance de la terre.
En primes que sir Hugh le Dispenser le fitz feusi coruce verse le roy, et sur ceo coruce fist un bille, sur la quel bille, il voillet auoir en alliance de sir John Gyffarde de Brymmesfeld, sir Richard de Greye, et dautre davoir mesne le roy par aspertee de fair sa volunte; issent que en luy ne temist mye, que il ne • e eu • t fair, • a tenure de la bille sensuit sous escript.
Homage & serement de ligeance est pluis par reason de la corone, que per reason de person le roy, & pluis se lie a la corone que a la person, & ceo piere que avant que • estate de la corone soit descendu, nul ligeance est a la person regardant. Dont si le roy par case ne se meisne par reason en droit de la corone, les leiges sont lies per s • rement fait a la corone de remeuer le roy, et le state de la corone par reason: & au • rement ne serroit le serement tenus. Ore fait a demander coment lem doit amesner le roy, ou par suite de ley, ou par aspertee? par suite de ley ne luy poet home pas redresser: • ar il navera pas juge, si ceo ne soit depart le roy. En quel case si la volunte le roy ne soit accordant a reason, si naveroit il forsque error maintenue & confirm. Dont il covient pur le serement lauuer, et quant le roy ne voet chose redresser & oustre que est pur le common people malueis et damageous pur la corone, a judger est que la chose soit ousle par aspertee, que il est lie par • on serement de governer son people & ses lieges, & ses liege, • ont lies de govern en eide de luy, & en defaut de luy.
Et auxint, par lour covin & malveistz mesneront & male conseileront nostre seignour le roy, si que a sa presence, quel il doit de son devoir monstrer a les grandz, et a son people, & a les graces & droit que eux luy requeront responder ne luy fil • point forsque a la volunte & a la taille les ditz sir Hugh, & sir Hugh, en oustance le roy d • son devoir contre son serement, et les • ueurs des grandes et du people de son seignour liege.
Auxint, mesnes ceux par lour male conueigne ne suffrerent pas les grands du realm, ne les bons counsellors le roy parler ne approcher le roy pur luy bien counseyler, ne le roy parler a eux, et a lour volunte, et solone lo • taille, et chose que ils voillent in rebotaun • es les grandes et les bons counseilors le roy de lour bone volunte • uers lour seignour liege, et acroachaunt a eux royal power▪ maistree, & sovereignty sur la person le roy, a grand dishonor et peril du roy, & de la corone, & de son royalm.
Auxint mesmes ceux pur attainder a lour malvesiees, & covesties, et disheritance des grandz de la terre, et destruction du people, ousleront bones et cove • ables ministers que • urent mis par assent, et ministrent au res faux & malueys de lour covine, que ne suffrent droit estre fait, et viscountz, escheitour, conestables des chastelx, et autres en les offices du roy, nient covenables pur le roy, ne pour le people, & fesont mettre Justices, nient conusant en ley de la terre, doier et terminer les chooses tounchant les grandes et le people du royalme, si come le dit sir Hugh le pere, sir Raufe de Basset, sir Rafe Camoys, and sir John Juge, et autres lour alies et jures especialment: & par covine de tielz ministres, & lour faux procurours & fautours sauxement fesoient enditer par faux jurrours de lour alliaunce les Peres de la terre, cest a scauoir le Count de Hereford, mon sir Gyffard de Brumfelde, et mon sir Robert de Mouchant, et autres bons gentz, pur covetise davoir lour terres, & issint eeo que denst estre a la maintenance de la peax, & des bons, & punishment des malueis, mesneront a disheritance des grandes et destruction del people.
Auxint, fauxement & malueisement counseileront nostre seignor le roy daler oue chiualx & et as arms verse les parties de Gloucester, et luy sierent chiuaucher et les gent arms en cels parties a cour sur les bons gentz contre la form de la grande chartre, et lesgard des Piers de la terre: & issent par lour faux et malueis counsel, voloient avoir mou guerre en la terre, a destruction de saint esglise et de people pur lour querel proper.
Auxint, lou le count de Herford, et le seignor de wygmore par commandment de roy assign dalier de guerre sur Thlewelyn Bten, que feust leave encounter le roy en Glamorgan, ant come les terres furent en main de roy par la morte le count de Gloue, le dit Thlewelyn se rendist a les ditz seignours a la volunte le roy en sa grace, et ses seignours luy par mittrent bone grace, et sur tiel condition le recovererent, et luy liverent a nostre seignour le roy. Et nostre seignour le roy en tiel form luy receust, et puis come les ditz seignours feurent ho • s de la terre, les ditz Syr Hugh le fitz, e • Sir Hugh le piere, que avoient • croche royal po • ar, sicome de suis est, pristent le dit Thlewelyn, et luy mesnerent a Cardiff, puis que Syr Hugh le fitz feust seisies illonques de sa pur party, et par lour coveigne en parnant jurisdiction lou nul est en cel case ne poient par reason avoir, et luy firent illonques: treiner et pender, decoller, et quartroner felonousement pur chose fair entemps le roy Henry. Et ensi purparnant royal poyar et jurisdiction, que appendant a la Corone en disheritance de la Corone, et a deshonour nostre seignor le roy, et des dites seigneure de Hertford et de Mortimer, et en malveis example et graunde peril, par case en temps a venir.
Et auxint male counseilant nostre seigneur le roy de prender en sa main les terres et les chateux Sir Hugh Dundle le fitz: et le foriugerent de ses terres sans du process solonques la lee de la terre, pur covetise davoir acroche au dit Sir Hugh le Dispenser le fits certeins terres. Et par autre faux compassements compassa davoir les terres mon Sir Roger Dammorie pour avoir atteynt par tielx et faux compa • sementz all entire del Counte de Gloucestre, en disheritance des piers de la terre.
Auxint la ou nostre seigneur le roy, par ses letters patentz desous son grande seal en plain Parlement a West • grant a Counte de Warwike, que si mort luy avenust, que les executours puissent avoir ses tertes, tan{que} all age son heir: la quel grant puis la mort du dit Count le roy confirma a son parlement a Nicolne, all request et par assent de piers de la terre, le dit Sir Hugh le Despenser le pier, par meintenance, abbette, et procurement le dit Sir Hugh son fitz, fist nostre feigneur le roy repeller ce le fait sans encheson, et baille au dit Sir Hugh le pier. pur son propte profit, la garde de mesmes celes terres, et issint d fesantz par lour malveis counseil ceo que le roy lour avoit grant en ses parlementes par son bon counseile, et par assent des piers de la terre, a deshonour du roy, et encountre droit et raison.
Auxint, mesmes ceux nount pas suffertz nostre seigneur le roy prender reasonable fines des piers de la terre, et autres que sont entre son fee, come ad este use eins ces • eurs: Mes pur covetise dattendre a tielx terres, par poiar royal a eux accroche, ount saith metter en teiels bosoigne non dues empechementes, surmettantes la terre estre forfair, come de Mounsire John de Mombray pur les terres de Gower, et des autres, a damage et dishonor nostre seignour le roy, et countre la loy de la terre, en desheritance des grandes et des auters du Royalm, ensi feisant le roy veer en parlement contre son serement.
Auxint, pur lour malveis covetise, et par poiar royal a eux acroche, ne susterent nostre seignor le roy doier, ne droit fair' as grandes de la terre, sur la demonstrance que ilz fesoient a luy, pur luy et pur eux de la disheritance de la corone et de eux, touchant les terres que furent as templers. Et issint par yoiar royal a eux accroche ont ils mesne nostre seignour le roy, son counseil et ses prelatz, que des chooses touchant eux ou lour alies, ount emprise et embrace par eux que droit ne poet estre fait fors{que}a lour volunte, et a damage et a dishonor de nostre dit seigneur, et peryl de son serement, et dishinheritaunce, et destruction de plusours autres grandes du people de son royalme. Et auxint de eslues as eves{que} abbes, et priours, que devoient de droit estre resceux de nostre seignour le roy, lou ils sont en due manner estues, ne poient approcher a nostre seignour le roy, ne one luy parler de querer sa grace, tanque ils avoient fait sine et fret Sir Hugh le fitz a sa volunte.
Ne nul que eust grant aquere de nostre seignour le roy, ne poet a nul grant atteinder avant{que} ilz avoient faitfine a luy. Estre ceo lou John de Lacchelegh et autres fuerent agardes a la prison pur un trespass que ils avoient fait a la dame de Merk, a damag'. de la dist dame de M. Centz marcz, dont ils furent atteintz devant mon Sir Robert de Middyngle er ses compaignons Justices assigns a oier et terminer cel temps, cel trespass, et le dit John feust en la prison de Colcestre par la gard suisdit, Sir Hugh le fitz accrochantz a luy royal poiar amesna le di • John▪ hors de la prison, contre leye de la te • re, eius que il avoir fait gree a la dit dame des damages avantditz, et luy fist vender sa terre a luy, et • ever sur ceo un fine.
Claus: 16 E. 2. m. 5. There is this memorable case recorded. The King being at Bishops. Thorpe near York ; held a Council with his Lord's (divers of which are there named) concerning the Truce with Scotland: inter qu • s Nobiles, Hen. de Bellamont Baro, & de Magno et secreto Concillo ipsi Domino Regi juratus, vocatus fuit, & ibidem venit . Being there pre • ed by the King to give his advice herein, quodam motu excessius, & animo quasi irreverents dicto Domino Regi saepe respondit: quod sibi consulere noluit in hac parte. Whereupon the King commanded him thence: Upon which he went out of the Council, and said: He had rather be absent, than there. Upon which contemptuous carriage and words consideration being had by the Lord's and Council, & by all the Judges & Barons of the Exchequer, being there amongst others (to wit, as assistants) in regard he was sworn, and had taken the Oath of a privy Counselor to the King, being called in again, Committitur Scalae Prisonae pro contemptu & inobedientia praedictis. After which he was let to mainprise; and a truce being there concluded with the Scots ; thereupon the writs ad arma, &c. were revoked, that were formerly i • sued to the Tenants by Escuage and Knights service.
In the Parliament held at Winchester, Ann. 2 E. 3. Edmund Earl of Kent the Kings Uncle, by the instigation and power of Roger Mortimer Earl of March, was arrested, impeached, condemned and execut • d, for conspiring and attempting to rescue his Brother King Edward the 2. and saying he was alive, after the time he was murdered ; which Treason, was said to be manifestly proved by Letters found about him, and by his own voluntary confession before the Coroner (recorded in Walsingham, and the Clause Roll of 4 E. 3.) which Letters and confession were openly read in Parliament; pur que oue le assent des Countz, Barons et autres Grantz et Nobles • n mesme le Parliament, par agard dicelle, estoiet le dit Count come Nostre Trayture et Traiture de Royalm adjudge a la mort: as the King himself recites in his Writs and Letters to all Sherifs. Claus. 4 E. 3. m. 16. dorso; Demorte Edmundi nuper Comitis Cantii publicanda ; commanding them to publish this as the cause and manner of his death, and to arrest all those that said, King Edward the 2. was alive, or that the said Earl of Kent was otherwise put to death. So that by this record, being a Peer; he was adjudged to death only by the Earls, Barons, Great men and Nobles in Parliament, without the Commons, not named in this record. And therefore the Kings Letter to the Pope in 4 E. 3. relating the proceedings and judgment against the Earl in these words, if truly recited, Comitibus Magnatibus, Baronibus, & aliis de COMMUNITATE dicti regni ad PARLIAMENTUM illud congregatis, injunximus, ut super hiis DISCERNERENT ET JUDICARENT quid rationi & justitiae conveni et, habentes prae oculis solum deum; qui eum CONCORDI ET UNANIMI SENTENTIA tanquam reum criminis laesae Majestatis, ADJUDICARENT ejus sententiae &c. Objected by Sir Robert Cotton, to prove the Commons to have a share and voice in judicatures in Parliament, and that not in the case of a Commoner but this great Peer; must needs be understood of an Attainder by Bill, to confirm the judgment formerly given against him by the Earls, Barons, and Lord's alone in this Parliament, as in the case of the two Spencers, not long before; not of his original sentence, given only by the Lord's, Barons, and other Great men and Nobles, as the Clause Roll and all Writs to the Sheriffs record. Which the Parliament Roll in 4 E. 3. n. 11, 12. doth likewise intimate, where Earl Edmond's eldest Son, and Margaret Countess of this Earl of Kent, by their Petitions prayed, that THE RECORD (or Bill) against the said Earl might be reversed for errors therein appearing, and he to be restored to blood and lands of his Father, and she to her Dower, which was granted and ordered by Parliament, saying to the King the wardship of the same during his minority; and thereupon it was further enacted, That no Peer of the land, nor other persons should be impeached for the death of the Earl of Kent, but only the said Mortimer and 3 more (then impeached and condemned of High Treason for his murder as well of the deposed Kings) and that his Countess should have her Dower, as Claus. 5 E. 3. part. 1. m. 24. assures us.
In the Parliament of 4 E. 3. rot. Parl. n. 14. Edward the eldest Son of Edward Earl of Arundel, condemned and beheaded without any legal trial by his Peers, by Roger Mo • timers power and procurement, Anno 18 E. 2. petitioned that he might be restored to his Fathers blood, lands, and goods considering the said Earl was unduly put to death, being not tried by his Peers, according to the Law & the grand Charter, But for that the said Attainder was afterwards confirmed by Parliament, he amended his Petition, and prayed in such wise to be restored of the Kings mere grace; Whereupon he was restored to all his Fathers lands, and to Arundel Castle, saving to the King all such lands as were given to this Earl by King Ed. 1. whereupon he did homage to the King in Parliament, and had livery of the king of all his lands, per assensum of the Lord's; as i • recorded in rot. Fin. An. 3 E. 3. m. 14. Claus. 4 E. 3. in dorso, and Claus. 5 E. 3. part. 1. m. 2, 3.
In this Parliament of 4 E. 3. n. 6. The Lord's claim to be JUDGES OF THEIR PEERS IN THAT & FUTURE PARLIAMENTS, in cases of Treason, &c. And n. 1. Roger Mortimer Ear of March, who had formerly condemned and beheaded other Peers, without any legal trial by their Peers, and deposed, murdered King Edward the 2. was by divine retaliation arrested at the Parliament held at Nottingham by the Kings command, then sent Prisoner to the Tower, impeached, attainted, condemned and executed himself as a Traitor, without any hearing, or personal defense, BY THE LORD'S AND PEERS AS JUDGES OF PARLIAMENT by the Kings assent : The Articles of his Treasons, Felonies, and other misdemeanors entre in that Parliament Roll scarce legible now were read before the Lord's against him and other of his companions. The Articles against him are thus related by Walsingham. Causae quae imponebantur eidem, prove accepimus, istae fuere, writes Walsingham, Prima causa, quod fuit consentiers mor • Regis Edwardi in castro de Berkley. Secundo impositum ei fuit, quod ipse impedivit honorem Regis et regni apud Stannyparke, ubi Scoti fugerunt, qui capi & intersici potuerunt. Tertio, quod ipse accepit 20 millia mercarum a Scotis, & illas tunc permisit evadere, & turpem pacem postmodum inter Scotos, et Regem ju venem sieri procuravit; et super hoc Chartam Regis sieri fecit eisdem. Et etiam illud vile matrimonium contractum inter sororem Regis et David filium Roberti de Brus, consummari consuluit & procuravit. Quarto, quod male consumpsit totam pecuniam in the sarris patris hujus Regis, et Domini Hugonis de Spencer inventum, et omnia bona regni, postquam Angliam regina intravit, suae dispositioni subjecit, ita quod ipse & Regina abundabant, & Dominus Rex egebat. Quinto, quod appropriavit sibi custodias, et maritagia nobiliora per totam Angliam. Et quod fuit malus Consiliarius Regis & Reginae matris, et nimis secretus cum ea, ut d • aliis taceamus. These with other Articles mentioned in the Parliament Roll being read; thereupon, Les ditz COUNTZ, BARONS, ET PIERS, COME JUGGES DU PARLIAMENT (as the Parliament Roll itself recites) per assent du Roy in mesme le Parliament agarderent et ajugerent, que le dit Roger COME TRAYTOUR ET ENEMY du ROY, et du ROYALME, fuist tr • yne et pendis. Upon which sentence, without being called to answer, the Earl, Marshal, by the Kings and Lord's command, assisted with the Mayor and Sherifs of London, and the Constable of the Tower, executed him the Thursday next after the first day of the Parliament. Ubi mortis excepit sententiam trastus & suspensus apud Elmes, super communi furca latronum, as Walsingham relates.
The Articles of this Regicides impeachment being very memorable, and somewhat larger than those in Walsingham, scarce legible in the Parliament Roll of 4 E. 3. I shall here present you with, together with the manner of his apprehension and judgment, out of Henry de Knyghton. King Edward perceiving the great malice and cruelty of Queen Isabel his Mother and Mortymer, that they occasioned many seditions, favored the Scots to the great dishonor of the King and Kingdom, destroyed the King her Husband: Et quanta mala eorum consilio & auxilio exercebantur in regno, qu • ntaque mala opera eorum somento vel • bantur, by the secret advice of his friends, resolved to separate them from one another, to prevent greater mischiefs. Nam in tantum invalescebant in terra, quod totum regnum in periclitando labi videbatur. Deinde Rex tenuit CONCILILM SWM apud Notyngham in quindena Michaelis cum pene omnibus Magnatibus regni. In quo Rex saniori consilio de eorum fraud et malitia salu • r • us edoctus, vidensque periculum tam praeteritum quam in posterum • am in praesenti per dictos Isabellam et le Mortymer evidenter imminens, graviter in cord condolens suscepit; sicque die Veneris in crastino sancti Lucae Rex cum electa comitiva in obscuro noctis, perr • xit per quendam viam subterraneam de villa Notynghamiae usque in castellum, et venit ad cameram matris suae Isabel • ae, et invenit ibi prope eam in alia camera Rogerum de Mortymer, et Episcopum Lincolniensem Henricum. Et statim Rex jussit Rogerum apprehendi, et in securam custodiam usque in crastinum poni. In crastino fecit apprehendere omnes suos adhaerentes per • tam villam dispersos Et statim misit omnes Londonias, videlicet le Mortymer, Et duos filios ejus, scilicet Galfridum & Edmundum milises, et Dominum Oliverum de Byngam, Dominum Simonem de Berforde. Et in captione Rogeri Mortymere occisus est Dominus Hugo de Tryplyngton miles, et senescallus familiae regis per dictum Rogerum Mortymer in ingressu regis in camera eorum. Isabella mater regis ad udicata est perdere omnes terras suas, et cum difficultate evas • t dampnationem ad mortem, eo quod er at mater regis, et ob reverentiam regis dilata est sententia. Et ordinatum est singulis annis caperet de cista domini regis ad sustentationem suam tria millia mercarum, et mane • et in uno certo loco ubi rex pro ea disponere vellet. Magnates regui imposuerunt contra Rogerum Mortymer Articulos sequentes.
Primerment, que parla on ordenee fuist all parliment de Londrez proscheyne apres la coronnement nostre seignour le roy, que quatres Eveskes, quatre Contes, et vi. Barones dustent estre pres du roy pour la conseyller, issint que tote foitz quatre y fuissent; Cest assavoir une Eveske, une Conte, et dieux Barons, a meynez, & que nule gross bosoigne soit faite sanz lour assent, & que chescu • e respondist dez ces fetz pur son temps: la dit Roger nyent eyant regard all dit assent, accrocha a luy real pouare & le government del realm sur lestate le roye, ousta et sist oustre et mettre ministres en loustele le roy et aillours par my la realm a sa volunte de ceux que surent de son acorde. Et myst John Wyarde & altres entour le roy despyer cez faitz et c • z ditz, issint que le roy fuist en tiele manere envyrone de cez enmys qil poet riene fair de sa volunte, mes auxi come une homme de south altre garde.
Ensy, par la ou le piere nostre seigniour le roy feust a Kenilworthe par ordinancez dezpieres de la terre a demorer illoeques a ces estres, pur estre servi come afferoit un tiele seigniour, le dit Roger par real pouare a luy accroche ne lessa taunt qil leust devers luy a sa volunte. Et ordyna qil fuist mande au chastiel de Berkeleye, ou par luy et par les sones f • ist fausement, traytouresment et selonesment mordre et tue.
Ensy, le dit Roger fist defendre par brief le roy souz le grant seal, que nule venist all parliment de Salisbury a force et arms, sor quant qil poet forfere devers le roy. Et la vynt le dit Roger et autres de sa covygne a force et arms all dit parliment contre la dite defense. Par quoy plusours de la terre, come le Conte de Lancastre et autres sachans la manere de sa venue, nevyndrent point. Et come par la ou lez prelatz estoyent assemblez all dit parliment en une meason pur counseiller sour lez bosoignez le roy, et de realm, le dit Roger debrusa les eos de la measone ove gentz dez armez sour lez ditez prelatez, et lez manassa de vie er de member sil • fuissent si hardys a dire oue fair riene encontre sa volunte et ordinancez. Et en mesme le parliment fist taunt, que le roy luy fist conte de la Marche, et luy dona plusours terres et tenementz en disheritance de sa coronne. E puis mena le dit Roger e ceux de sa covygne nostre seigniour le roy armez sur le contede Lancastre et autres piers de la terre tanque a Wincestre, la one yls estoient venancez devers le roy, au dit Parlement de Salesbury. Parquay le dit conte et lez autres pieres de la terre pur eschewere le peryl que poet avenir, a la reverence du roy, departirent et aillerent envers lour pays, dolons qils ne poyent ove lour seigniour lige parlere ne conseiller come ils deveront.
Ensy, le dit Roger fist le roy chivacer forciblement sur le conte de Lancastre et autres piers de realm que estoient ordeignes davoyr estre pres du roy pur luy conseiller. Et en taunt les enchasa par force, que le dit conte et autres grantez del realm que voil rent profiteau roy, se mistre • t a la grace le roy, sauve a eux vie et member, et qils ne fuissent disherites ne all trop grant ranson; Mes ils furent mys au trop grant ranson que lours terres vendront a tous joure. Et les autres fit enchacer hors de la terre a seiser lours terres, contra la form de la Grante Charte et leye de terre.
Ensy, par la oue le dit Roger sa • oit biene que le piere nostre seigniour le roy est oit morte e enterre, il par altiez de sa covygne en desceyvance manner, fist entendre all Edmund conte de Kent, qil fuist en vie: par quey le dit conte fuist moult desirous de savoire la verire. Et fist espier par to • ez lez bonez voiez qil savoit, tanke le dit Roger, par real powere a luy accroche, fist prendre all parliment de Wincestr • le dit cont le Kent, procuta qil fuist iilocques mys a la mort.
Ensy le dit Roger fist le roy doner a luy sez enfantz e a sez alies chastieles, viles, manners, et francheses en Engleterre, Irland, et Gales en decree • e de la coronne.
Ensy le dit Roger en disceivaunce manere fist les chivalers dez contez gratier au dit parl: all roy de chescune vile Dengliterre que respont par quatre, et le provost en eyre vne homme de arms a lour costages en sa guerre de Gascoyne par une an; la quele charge le dit Roger avoit compass a tourner ceo avoyr en autre profit pur luy et autres de sa covygne, en destruction de people.
Ensy, le dit Roger par real ponare a luy accroche fist maundre lettres suth la grant chartre au plusours grantz chivalers et altres, qe ils venesont all roy queu part qil fust, et a lour venue le fist chargere qils se addre • ent daler en Gascoyne, ou qils feissent fyn oue ranson a sa volunte; Dez quenz ascunez fyrent fyn grievous, et tout le pluis est venuz au profit le dit Roger.
Ensy, le dit Roger fausement et maliciousment fist le discord entre le piere nostre seigniour le roy et la reyne sa compaigne, et sa fist entendre, que si ele out venuz a luy, qil la out tue de cotele, ou altre arm, ou autre manere de mordre, et par tiele cause, et autres sotilletes si fist il taunt que la reyne ne vint pas devers son seigniour, all grant dishonor du roy et de tote realm, et damage par cas en temps avenir, qe de dieu deffende.
Ensy, le dit Roger sy ad pris er faite prendre devers luy et les autres de sa company de tresore le roye a sa volunte sans noumbre en deners et jeueux, en destruction du roy; issint qe le roy nad rien de paiere pur son viure.
Ensy, le dit Roger si ad fait prendte devers luy et devers sez alliez lez xx mille marz quex sont venus hors dez Scozce pur la form de la pees, et rien est venue all profit du roy.
Ensy le dit Roger cez prises par my le realm auxi come roy et seigniour de tutte, et entre luy et lez autres de la covigne merent all double del gentz et chivalez en la company le roy qe le roy ne fist, en destruction del people, sans fair payment altre qe a lour volunte.
Ensy, le dit Roger par son real pouare fist le roy, granter a la montance del CC. chivalers a ceoux Dirland que avount ruez lez grantes et autres de la terre que furent de la foy le roy en cellez pa • . P • r la ou le roy devoit pluis ost par reason avoyre vengee loure mort de pardonee contre form de parlement.
Ensy le dit Roger compassa devoyre destrut lez noryes le roy et lez secrettez le roy de queuz il se pluis a • ya. Et susmyt all roy en presence la reyne sa miere et dez eveskes de Nichole et de Salusberye et autres de counsel le roy qe lez avanditez secretez le roye luy exciterent destre la covygne dez enmys par de lay, en destruction de sa miere et del avant dite Roger ; La quela chose il affirma taunt sour le Roy que le parole le Roye ne poet creu. Et cele vendurdi deinz la nute qils estoient prisez, a la myt nyt suant, donke pur lez caulez susescriptes et molt dez autrez chooses que ne sont pas ore a dyre touz, si fist le dit roy prendre en la manere par eide et avisement dez priveez et nuriicz come il vous ad souent monstres.
Tunc propter causas subscriptas et multas alias quae jam non sunt recitandae ad praesens, Rex praecepit Comitibus, Baronibus, et caeteris Magnatibus regui, justum judicium ferre super praedicto Rogero Mortymere. Qui omnes adinvicem consulentes venerunt, dicentes, quod omnes et singuli articuli superius de dicto Rogero attestati veri sunt et notorii, et omni populo terrae cogniti, et praecipue articulus tangens mortem regis apud Berkeleye; unde respiciatum est et adjudicatum, quod praedictus Rogerus, ut proditor et inimicus regis et regni, distrastus sit et suspensus tertio kalend. Septembris apud Londonias. Cujus corpus duobus diebus et duabus noctibus nudum pendebat super furcas.
By these Articles it is evident, 1. that it was adjudged high Treason in him to murder King Edward the 2. after his resignation of, and deposition from the Crown, by his own and a Parliaments consent; How much more then to destroy, murder him, when an actual lawful King, when never deposed, without and against his Parliaments consents, and contrary to their resolutions, protestations, Covenants, Oaths? 2ly. That to come with armed forces to any Parliament, to over-awe, force, menace, terrify thereby, and drive away any of the Members thereof from it and compel the rest to comply with, or not to oppose what this armed party propounds (or to put any Nobleman to death) is a high and treasonable offense; That Lord's and other Members may justly depart from Parliament without doing anything, when there is any such force upon them: Let Lilburn and others guilty of such Treasons sadly consider them, and take timely warning by this president.
In the Parliament of 28 E. 3. n. 7. to 14. Roger Mortimer of Wigorn, Cosin and heir to this executed Roger, required by his Petition, that the Act of his Attainder in the Parliament of 4 E. 3. n. 1. might be examined, and for manifest Errors therein reversed ; whereupon the record was brought into Parliament, and all the Articles, Proceedings and Circumstances of his Judgment at large recited. Which being read, it was alleged, that the judgment was defective & erroneous in all points (not for the substance of his Charge) for that the said Earl was put to death and disinherited, (by the Lord's, as Judges o • Parliament, by the Kings command) Sans nulle accusement, et sans estre mesne au juggement, au en respons, without any accusation, and without being brought to Judgment, or to answer: for which causes it was prayed, That the said Statute and Judgment might be reversed and annulled. For which causes, Nostre Seignour le Roy, et les dits Prelates, Prince, Duks, Countz et Barons, per accord des Chivalers des Counts, et des ditz Comunes, re • ellent et anientissent, et pur erroigne et irr • t ajudgent les Records et Iuggements suis dits. This Judgment (whose reversal is also recited in Claus. 28 E. 3. m. 7. & 29 E. 3. rot. Parl. n. 29.) though given in Parliament, being erroneous and void in Law, because given without any lawful accusation, trial, answer and arraignment of the party, against the Great Charter and Law of the Laud; which ought to be observed, not violated by the Lord's or Parliament itself in their Judicial proceedings.
In this Parliament of 28 E. 3. • . 13. Richard Earl of Arundel by Petition shown; that in the Parliament of 1 E. 3. touching the attained • of Edmund Earl o • Arundel his Father, a Statute was made without forfeiture, albeit he was put to death, and prayed, that he may now be taken as heir of his Father, and that Act reversed as erroneous▪ which being read, and duly considered, 〈◊〉 su • ce • oue bon deliberation et auys a grant 〈◊〉 nostre Seigniour le Roy, Prelates, Prince, Duk • , 〈◊〉 Barons 〈…〉 , il apiert clerement que le dit Edmund fuist non 〈…〉 a la mert, et que parols recites eu le dit Statute touchant la mort et destruction de dit Edmund sont voydes, erroignes et nulles. Pur quoi nostre Seignior le Roy et les ditz Prelates, Prince, Dukes, Countz e • Barons, per accord des Chivalars des Counte • et des dites Commune, ajuggent et agardent, que la recitation et quelque est en le dit Statute touchant la mort et destruction du dit Edmund, sont Voides, erroignes et nulles, &c. et soint anientez et pur nul toutz a toutz jours. The said Edmund being put to death without due process or trial by his PEERS, according to the Law of the Land and the Great Charter ; Therefore the Act confirming this erroneous attainder, was thus reversed, repealed, and nulled.
In these two last Records it is observable: First, that the King and Lord's debated, adjudged these Judgments and attainders to be erroneous ; but because they were confirmed by Act of Parliament, the assent of the Knights of Shires and Commons was required and had to their reversal, as well as to the nulling and repealing of other public Acts.
In the Parliament of 50 E. 3. rot. Parl. n. 21. to 31. William L • d Latimer was accused by the Commons, for divers oppressions by him done to the Kings people, both during his command in Britain, and also in the time that he was Chamberlain to the King, and of his Council in levying divers sums of money for victuate and ransoms amounting to many thousand pounds, for which he never accounted; For the loss of sundry Fo • s and Towns in Normandy and Britain to the Enemy, of which he had the command, and partaking with Richard Lions in those illegal Impositions, and misdemeanors, whereof he was then impeached by them. Whereunto the Lord Latimer, saving the trial of his Peers, offered to answer any particular person • that would complain against him; but that the Commons would not do, but prayed he might answer their charge in general: whereupon he answered every of the Charges against him, and that very fully in open Parliament before the LORD'S. Yet notwithstanding the Bishops and Lord's gave Judgment against him in full Parliament; that for his ill Counsel and Government, against the profit of the King and Realm, and namely for divers Chevisances to the Kings loss, for procuring grants to the destruction of the Staple and Town of Calais, and for divers impositions laid upon wools, he should be committed to prison, under the custody of the Marshal, and make fine and ransom at the Kings pleasure. Whereupon the Commons further required; That he might lose all his Offices, and be no longer of the Kings Council: which the King granted. After which this Lord found certain Lord's and others of quality (whose names are mentioned in a Schedule annexed to the Parliament roll) to be his Mainpernors, for the forth-coming of his body during the Parliament; Upon which the Marshal offered him to be at large.
In the same Parliament, 50 E. 3. rot. Parl. n. 34. John Lord Nevill was accused, that during the time he was of the Kings privy Council he bought certain debts due by the King to the Lady Ravensham and Simon Love, a Merchant, at under values; and for receiving of the King more wages and for a longer time than was due for one hundred Soldiers in Britain. Upon which he confessed he received 95 l. of the Lady for the obtaining of her debt only, our of her mere good will, which was not disproved. The Charge touching Love, he wholly denied. Love thereupon being brought into the Parliament before the Lord's; wholly excuseth the Lord Nevill: But because Love the day before had confessed the contrary unto two of the Knights of the Parliament; he was committed to Prison by the LORD'S. To the receiving of Wages, he fully cleared himself: Notwithstanding the LORD'S GAVE JUDGEMENT of imprisonment, and of l • s • of Lands, Goods and Offices against him▪ and that he should make restitu • of the 95 l. to the Ladies Executors.
These Judgment • 〈◊〉 the Commons importunity were so unjust; that in the very next Parliament of 51 E. 3. rot. Parl. n. 75. upon the prayer of certain Bishops, Lord's, and the Commons themselves, the Lord Latimer by the Kings grant and royal assent, and the Authority of the Lord's was restored to his Offices and Privy Counsellorship, whereof he was deprived by them this Parliament, upon untrue Suggestions. Such partiality and injustice is there many times even in Parliaments themselves, out of malice, faction or affection.
In the Parliament of 7 R. 2. holden at Westminster the Monday next before the feast of All Saints, rot. Parl. n. 13.15. to 24. Ralph Nevill the martial Bishop of Norwich was accused in Parliament, for not serving the King in his wars in Flanders for so long a time, and with so many men, and with a sufficient General, as he promised, whereby the Voyage was lost, to the Kings dishonor and damage, and for selling the Castle of Gravelin to the French for money: which the Chancellor in open Parliament declared against him: The Bishop answered thereunto in person, albeit in this case he said, he might have Counsel: with this Protestation, that he might at all times, avoid or amend his answer. To which answer of his the Chancellor replied: In conclusion upon debate, THE KING AND LORD'S resolved his answer to be no sufficient excuse of what was charged against him : Whereupon the Chancellor by ASSENT OF THE LORD'S, concluded, That although the King might pass on the Bishop as a Temporal Lord, by reason he took upon him to serve him as a Soldier, and had the Sword carried before him, contrary to his profession; yet for that time (in regard he was a Bishop) the King would spare to lay hands on, or imprison his person, as he might do. And therefore they ADJUDGED him, to make fine and ransom to the King, at his pleasure, whereunto he should be compelled by the seisure of his temporalties: And it was commanded that from thence the Sword should no more be carried before him.
In the same Parliament held this year, about the feast of St. Martin
At the Parliament held at Salisbury, an Irish Frier Carmelite delivered a Schedule to the King, containing divers treacherous plots and Treasons against him by the Duke of Lancaster, that he had resolved suddenly to kill, oppress the King, and seise upon the Kingdom; setting down the time, place, and all other circumstances; taking his Oath upon the Sacrament of Christ's body that every word contained in that Schedule was true : advising the King not to believe the Dukes excuses, nor to defer his judgment, lest he should raise forces against him to effect his design, or be deceitfully reconciled to him. The King hereupon being young, NON DOMINOS, NON PARES REGNI super tantis negotiis, ut disecr • erant qui • 〈…〉 co • sulait, but two C • eras of his Chapel his accustomed Counselors: whiles the King and they were privately debating the business, the Duke came in unto them; whom the King beholding with a stern countenance, and not receiving him with that honor as formerly; he suspecting the King conceived something in his mind against him, withdrew himself: But by the Chaplains advice he was called in again, and the Schedule delivered him to read. Which having read, he said with a great sign to the King.
In this Parliament holden at Salisbury 7 R. 2. rot. Parl. n. 11. to 16. John Cavendish a Fishmonger of London, made his complaint first to the Commons, and after to the Lord's, against Sir Michael de la Poole Chancellor of England, demanding the Peace against him; which THE LORD'S granted: after which he accused him for taking Bribes, and delays and injustice in a suit of his depending before him: whereof he cleared himself by his own Oath, and the Oaths of other witnesses sworn and examined before THE LORD'S: Whereupon the Lord's being troubled with other weighty matters, referred the Chancellors reparation for the Scandal to the ordering of the Judges.
The same Sir Michael de la Pole Earl of Suffolk, and Chancellor of England, in the Parliament of 10 R. 2. rot. Parliamenti, n. 6. to 18. was accused in full Parliament before THE KING BISHOPS & LORD'S by the Commons who exhibited sundry Articles against him; recorded at large by Henry de Knyghton (agreeing with the Parliament Roll.) The effect of them was this; That whiles he was Chancellor, against his Oath, to procure the profit of the King; he had purchased lands and tenements of the King of great value at under rates, and exchanged uncertain • customs and rents for good lands, in deceit of the King; and for spending the Aids granted to the King the last Parliament, to guard the Seas, in another manner than they were granted; whereby the Seas were not guarded, and much mischief happened to the Realm, &c. The Lord's & Commons refused to act anything till the King came in person to Parliament, and the Chancellor removed upon these Articles.
The Chancellor demanded of the LORD'S 1. Whether he should answer these Articles without the Kings presence, for things done whiles he was Chancellor, for that he being Chancellor of England for the time represented the Kings person (in Parliament) during his absence thence ; Secondly, Whether his Brother in Law Sir Richard Scroope might not answer for him, whom he had by advice of his Counsel, appointed to do it ? To which the LORD'S answered and resolved, It was honest and fit for him to answer for himself: Whereupon he making protestation, that he might add to, or diminish from his answer, and that which might be honorable to him by advice of his Counsel ; the Lord's granting thereunto: He thereupon put in an answer and replication to all the Articles; to which his Counsel added some things in making his defense: The Commons replied to his answer, to w ch he by way of rejoynd • r replied and answered to them, his defense s • eming very solid: Yet the Commons upon his replication before judgment, pressed the King then being in Parliament, and she Lord's, that he might be committed for the grievous offenses charged against him. Whereupon he was arrested by the Kings command, and committed to the custody of the Constable of England, and after let to mainprise. Ar last THE LORD'S in full Parliament GAVE JUDGEMENT AGAINST HIM; That for breach of his Oath, all the Manors and lands which he had of the Kings gift, contained in the Articles should be seised into the Kings hands, to have them to him and his heirs forever, together with their mean profits and issues, saving to him the name and Title of a Knight and Earl, together with an annuity of 20 l. yearly, granted him out of the profits of the County of Suffolk. The like judgment was given against him for the lands exchanged by the King for the customs of Hull, and the Priory of St. Anthony, Walsingham adds, That he was deprived likewise of his Chancellorship and adjudged worthy of death; yet the Lord's would not put him to death but sent him prisoner to Windsore Castle. Rex autem non multo post annullavit quicquid in Parliamento statutum fuerat contra ipsum.
In the Parliament of 11 R. 2. rot. Parl. • . 6, 7. Thomas Duke of Gloucester kneeling before the King, said, that he understood the King was informed, he went about to depose him, and to make himself King ; Wherefore he offered to put himself upon his trial in that behalf, as the Lord's of the Parliament would award ; Whereupon the King said in open Parliament, that he thought the said Duke was nothing faulty, and therefore held him excused.
After which all THE LORD'S, as well spiritual as temporal being in the Parliament, claimed their liberties and franchises, namely, That all weight • matters in the same Parliament, which should be after moved touching THE PEERS OF THE LAND, ought to be discussed, JUDGED AND DETERMINED BY THE M, by the course of Parliament, and not by the Civil Law, nor yet by the Common Law of the Land, used in other Cou • ts of the Realm. The which claim and liberties the King most willingly allowed and granted thereto in full Parliament. After which Thomas Earl of Gloucester, Henry Earl of Derby, Richard Earl of Arundel, Thomas Earl of Warwick, and Thomas Earl of Marshal, Lord's Appellants, impeached Alexand • r Archbishop of York, Robert de Vere Earl of Ireland, M • chael de la Poole Earl of Suffolk, Robert Tresylam Chief Justice, Nicholas Bramber Knight, and other of their adherents of High Treason against the King and his Realm.
The Articles they exhibited against them were 36 in number, at large recorded in Henry de Knyghton de Eventibus Angliae, l. 5. col. 2713. to 2727. with the whole proceedings thereupon, for which many were attainted, condemned, executed BY JUDGEMENT OF THE LORD'S, notwithstanding the Kings intercession for some of them to the LORD'S: they are likewise mentioned in the printed Statutes at large, of 11 R. 2. c. 1, 3, 4. in Walsingham Hist. Angliae, p. 359 to 367. and other vulgar Historians: I shall therefore for brevity refer you to them. Exactum est juramentum a rege, ad standum REGULATIONI PROCERUM, et non solum a rege, sed a cunctis regni incolis, idem juramentum est expetitum.
In the Parliament of 14 R. 2. n. 14. The King and Lord's (without the Commons) declared, That in the 7 year of this King, the Earldom of Richmond, with the appartenances, WERE ADJUDGED BY THE KING AND LORD'S to be forfeited to the King, by reason of the adherence of John Duke of Britain, then Earl of Richmond, to the French; against his allegiance to the King, and his father king Edward the 3. which judgment was not then enrolled in the Rolls of Parliament for certain causes known to the King and LORD'S, but was now enrolled, and the lands granted to the Earl of Westmorland, which King Henry the 4th would not revoke upon the Commons Petition to restore them to the Duke, 1 H. 4. rot. Parl. n. 78.
In the Parliament of 17 R. 2. n. 11 Richard Earl of Arundel, in the presence of the KING and LORD'S accused the Duke of Lancastre of 5 particular misdemeanors: In which when the King had justified him; it was awarded by the King, BY THE ASSENTS OF ALL THE LORD'S, that the Earl should in full Parliament make a formal submission to the Duke, and crave pardon for his false accusation.
In the Parliament of 21 R. 2. rot. Parl. n. 12. to 17. the Commons impeached Thomas Arundel Archbishop of Canterbury of high Treason, for procuring the Duke of Gloucester and others there named to accroach to themselves regal power, and execute the Commission of 10 R. 2. when he was Chancellor; praying that he might be kept under safe custody, with a protestation of making for her accusations during the Parliament against him and others. After which they prayed the King to give judgment against the Archbishop, according to his desert: who submitted himself to the Kings mercy: Whereupon the KING & LORD'S and Sir Thomas Piercy, (the general Proctor for the Bishops in this case ) adjudged the fact of the Archbishop to be Treason, and himself a Traitor; and that thereupon he should be banished, his temporalties seised, and all his lands in proper possession or use, together with his goods forfeited to the King, and presenting the day and place of his departure into exile.
After this in the same Parliament of 21 R. 2. the Lord's Appellant therein named accused the Duke of Gloucester, the Earls of Arundel and Warwick, and others of High Treason, for procuring the Commission in 10 R. 2. for raising forces, and coming to the Kings person armed; For accroching to themselves royal power, and adjudging some to death, and executing them as Traitors in the Parliament of 11 R. 2. For intending to surrender up their Homage and allegiance to the King, and then to depose him; and saying they had good cause to depose him, &c. Hereupon the Earl of Arundel being brought in custody to the Parliament before the Lord's, by the Kings command and assent of the Lord's, had his charge read and declared before him by the Duke of Lancaster Steward of England ; to which he pleaded his pardon: which plea being disallowed, because his pardon was revoked by this Parliament, and he relying on it without any other plea▪ the Lord's appellants prayed judgment against him, as convict of the Treasons aforesaid: Whereupon the Duke of Lancaster, by assent of the KING, Bishops, Earls, and LORD'S, adjudged him convict of the Articles aforesaid, and thereby a Traitor to the King and Realm, and that he should be therefore hanged, drawn and quartered, and forfeit all his Lands in fee or fee-tail which he had in the 10. year of this King, with all his goods and chattels. But for that he was come of Noble blood, the King pardoned his execution of hanging, drawing and quartering, and granted that he should be beheaded: which was accordingly executed the same day on Tower hill by the Marshal of England. The 28. of September, the Earl of Warwick was brought ao his Trial in the same manner as the Earl of Arundel ; who confessed all the Articles, submitted to the Kings grace, and had the same judgment pronounced against him in the same manner as the Earl of Arundel. But the King at the Lord's Appellants and others requests pardoned his execution, granted him his life, and banished him into the Isle of Man. The Duke of Norfolk by assent and Act of Parliament, was tried in a Court Martial by the King, Lord's and some Knights, for words spoken against the King, and judgment was there given that he should be banished into Hungary, and his lands forfeited to the King.
Within one year after (such is the vicissitude of all worldly honor and power) in the Parliament of 1 H. 4. Plac. Coron. n. 1. to 11. at the prayer of the Commons, the great Lord's Appellants, Edward Duke of Albemarl, Tho. Duke of Surry, John Duke of Exeter, John Marquess Dorset, John Earl of Salisbury, and Thomas Earl of Gloucester, were all questioned and brought to their several answers before the King and Lord's for their Acts and proceedings in the Parliament of 21 R. 2. the records whereof being read before them in Parliament, they made their several answers and excuses thereunto: whereupon the King and Lord's, after consultation thereupon, ADJUDGED, that the said Dukes, Marques, and Earls should lose their several Titles and Dignities of Dukes, Marquess and Earls, with all the honor thereunto belonging; and that they should forfeit all the Lands and goods which they or any of them had given them, at the death of the Duke of Gloucester, or since: and that if they or any of them should adhere to the quarrel or person of King Richard, lately deposed, that then the same should be Treason. The which Judgment was pronounced against them, by William Thurning, Chief Justice of the Kings Bench, in Parliament, by the Kings command ; but in the Parliament of 2 H. 4. rot. Parl. n. 33. upon the Petition of the Lord's and Commons to the King, the Earls of Rutland and Somerset were pardoned, and restored by the King in Parliament.
In the Parliament of 2 H. 4. n. 14. the Bishop of Norwich, was accused by Sir Thomas Erpingham, the Kings Vice-Chamberlain before the King and Lord's, of divers offenses against the King; who taking the accusation to be good because of the Bishops order, and that he was of the king • linage; pardoned the said Bishop, all his misprisions done against his person, and reconciled the Bishop and Sir Thomas one to another. And n. 30, 31. all the Lord's Temporal (whose names are there recorded, being 25. in number) by assent of the King, declared and ADJUDGED, Thomas Holland late Earl of Kent, John Holland late Earl of Huntingdon, John Montague late Earl of Salisbury, Thomas le Despencer, Sir Ralph Lumley Knight, and divers others (who were for their Rebellions and Treasons, in levying war against the King, taken, slain or beheaded by certain of the Kings Subjects) to be Traitors, and that they should forfeit all such Lands as they had in fee the 5. of January, the first year of the King, or at any time after, with all their goods and chattels: The Record is, Toutz les Seigneurs temporelz esteantz en Parlement, per ussent du Roy declarerent, et adjuggerent les ditz Thomas, &c. pur Trayteurs, pur la leve de Guerre encountre lour Seignior le Roy, nient obstant qils furent mortz sur le d • t leve de guerre sanz process de ley. Lo here the Lord's alone by the Kings assent, declare and adjudge what is Treason, both in the case of Lord's and Commoners too, and • taint and give Judgment against them both, without the Commons, after their deaths, without legal trial.
In the Parliament of 5 H. 4. rot. Parl. n. 11, 12, 13, 14. On Friday the 18 of February the Earl of Northumberland came before the King, Lord's and Commons in Parliament, and by his Petition to the King, acknowledged, that he had done against his Laws and allegiance; and especially for gathering power & giving of Liveries, for which he put himself upon the Kings grace and prayed pardon, the rather, for that upon the Kings Letters he yielded himself, and came to the King at York; whereas he might have kept himself away. Which Petition by the Kings command was delivered to the Justices to be examined, and to have their counsel and advice therein: Whereupon the LORD'S made a Protestation; que le Juggement appentient a • ux tout soulement, THAT THE JUDGEMENT APPERTAINED ONLY TO THEM. And after the said Petition being read and considered before the King and the said Lord's, as Peers of Parliament, aus queux teils juggeme • t apperteignent de deoit; to whom such Judgments 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. year of King Edward the Kings Grand father that now is, concerning the Declaration of Treason, as the Statutes of Liveries made in this Kings reign, ADJUDGED; That that which was done by the said Earl contained within his Petition, was neither Treason, nor Felony, but Trespas; for which the said Earl ought to make fine and ransom at the will of the King. Whereupon the said Earl most humbly thanked our Lord the King, and the said Lord's his Peers of Parliament for their rightful judgment and the Commoners for their good affections and d • ligence used and shown in this behalf; And the said Earl further prayed the King, that in assurance of these matters, to remove all jealousies and evil suspicions, that he might be sworn a new in the presence of the King, and of the Lord's and Commons in Parliament; and the said Earl took an Oath upon the Crosier of the Archbishop of Canterbury, to be a faithful and loyal liege to our Lord the King, the Prince his Son, and to the heirs of his body inheritable to the Crown according to the Laws of England; Whereupon the king out of his grace pardoned him his fine and ransom for the trespass aforesaid. After which, num. 17. the Lord's Spiritual and Temporal, humbly thanked the King, sitting in his royal Throne in the white Chamber, for his grace and pardon to the said Earl of his fine and ransom: and likewise the Commons thank • the Lord's Spiritual and Temporal, for the good and just Judgment they had given, as Peers of Parliament to the said Earl.
From this memorable Record▪ I shall observe; First, that though this Declaration of this Earls case was made by his Petition in the presence of the King, Lord's and Commons in Parliament, according to the Statute of 25 E. 3. yet the Lord's 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. Secondly, That this claim of theirs in this case, was acknowledged and submitted to both by the King and Commons : and thereupon the Lord's only, after serious consideration of the case and Statutes whereon it depended, gave the definitive sentence and judgment in this case ; that it was neither Treason nor Felony, but Trespass only, &c. Thirdly, That the Earl thanked the King, only for his grace, the Lord's for their just Judgment, and the Commons only for their good hearts and diligence, having no share in the judgment, though given by the Lord's both in the Kings and their presence ; and that the Commons themselves returned special thanks to the Lord's Spiritual and Temporal in Parliament, for their good and just judgment. Fourthly, That this judgment of the Lordr only, was final and conclusive, both to the King and Commons, who acquiesced in it.
In the Parliament of 2 H. 5. rot. Parl. num. 13, 14. Thomas Montague Earl of Salisbury, son and heir of John Montague Earl of Salisbury, exhibited his petition in Parliament to reverse a judgment given against his said father in the Parliament at Westminster in the second year of King Henry the fourth, rot. Parl. n. 30, 31. forecited, wherein amongst others he was attainted of Treason by judgment of all the Temporal Lord's in Parliament : and thereupon he exhibited certain reversals of Judgments given in Parliament, as making on his behalf, to the Lord's consideration, reversed for some errors assigned in those judgments; to wit, one judgment given against Thomas heretofore Earl of Lancaster, before King Edward the second at Pomfract, the Monday before the feast of the Annunciation, in the fifteenth year of his reign▪ and another Judgment against Roger de Mortymer, late Earl of March, in the Parliament of King Edward the third, the Monday after the feast of St. Katherine, in the fourth year of his reign, at Westminster. Which Judgments being distinctly and openly read • and fully understood; It seemed to the King and Lord's, that the case of the death and execution of the said John late Earl of Sarum, and of the judgment aforesaid against him given, is not, nor was like to the case of the executing of the said Th. heretofore Earl of Lancaster, nor to the case of the putting to death of Roger Earl of March, nor to any judgment given against the said Thomas and Roger, as aforesaid, but that the judgment and declaration had and given against the said John late Earl of Sarum were a good, just and legal Declaration and Judgment. Per quod: consideratum suit in praesenti Parliamento per praedictos Dominos tunc ibidem existentes, de assensu di • Domini nostri Regis quod praefatus nunc Comes Sarum nihil capiat per petitionem, aut prosecutionem suam praedictam. Et ulterius tam Domini spirituales quam temporales supradicti, judicium et Declarationem pradicta versus dictum Joannem quondam Comitem Sarum, ut praemittitur habita sive reddita de assensu ipsius Domini Regis affirmarunt fore et esse bona, justa et legalia, et ea pro hujusmodi ex abundanti decreverunt et adjudicarunt tuuc ibidem. This is all that is mentioned in that Parliament Roll concerning this business.
Sir Edw. Cook who hath an excellent faculty above all others I have yet met with, in mistaking, mis-reciting, and perversing Records, and Law-books too oft times, which he had no leisure to peruse (which I desire all Lawyers and others to take notice of who deem all he writes to be Oracle, lest they be seduced by him) in his 4 Institutes, p. 23. affirms with confidence, That in this Rot. Parl. 2. H. 5. n. 13. Error was assigned (to reverse this judgment) that the Lord's gave judgment without Petition or assent of the COMMONS; citing it to prove, that the COMMONS have a power of judicature, together with the LORD'S. But under his favor, I can assure ye Reader, 1. That there is no such error at all either mentioned or intended in this Record, nor any one syllable tending to that purpose.
2ly. The Petition mentions no error at all in this judgment; but only remembers two presidents of judgment formerly reversed; the first in the case of Thomas Earl of Lancaster, in 15 E. 2. which judgment was given against him at Pomfret Castle, which was afterwards reversed, as Sir Edward Cook himself informs us in his 3 Institutes, c. 7. p. 52, 53. in Pas. 39 E. 3. Coram rege, rot. 92. for this only reason, Qua contra Chartam de libertatibus, cum dictus Thomas fuit unus PARIUM & MAGNATUM Regni, non imprisonetur, &c. nec dictus Rex super eum ibit, nec super eum mittet, nisi per legale judicium PARIUM SUORUM, &c. tamen tempore pacis absque juramento, seu responsione, seu legale judicio PARIUM SUORUM, &c. adjudicatus est morti. The other was the judgment given against Roger Mortymer in the Parliament of 4 E. 3. reversed for the like reason in the Parliament of 28 E. 3. n. 10, 11, 12. forecited, being condemned and executed by the Lord's, without any arraignment, hearing, trial, or answer, against the Great Charter. Now these two Presidents are pointblank against this pretended error alleged by Sir Edward Cook, That the Lord's gave judgment without the assent of the Commons, and it had been very improper for them to allege the reversal of them for want of a legal trial by their Peers; to prove that the Commons, who are no Peers, should have assented to the Earl of Salisburies judgment; and because they did it not, it was Error and reversible; These presidents therefore might have minded him of his gross mistake.
3ly. The King and Lord's upon consideration declared, and adjudged these two cases and judgments, upon perusal of them not to be like the case of the Earl of Salisbury, who being slain in rebellion, and actual war against the king; could not be personally arraigned and condemned, as the other two might, and ought to have been, and therefore the judgment given against him in this case by the King and Lord's in Parliament, who were his Peers, was a good, just, and legal judgment, and no ways against the great Charter.
4ly. The Commons themselves in the Parliament o 13 H. 4. rot. Parl. n. 19. acknowledged this judgment to be good without their assents, by their Petition to the K • ng that John Lumly whose Father was attainted of Treason by it (together with the Earl of Salisbury, might be restored to blood and lands (by Act of Parliament, and the Kings grace) notwithstanding this judgment of Treason against them. Which the King; by assent of the Lord's Spiritual and Temporal, consented unto.
5 lie. In the Parliament of 3 E. 4. n. 31, 32. this judgment was made void and repealed out of the Kings Grace, by a special act of Parliament, and the heir restored, but the judgment not reversed for any Error.
6ly. Had there been any such Error assigned, as is alleged; yet the King and Lord's, upon solemn debate and deliberation, over-ruled, and adjudged it to be no Error at all (as he pretends it) and thereupon abated the Petition, and adjudged the Judgment and Declaration given by the Lord's alone, with the Kings assent, in 2 H. 4. (without the Commons Petition or assent) to be GOOD, JUST, AND LEGAL, reconfirming it a new on Record as such: Therefore it was a gross oversight in him to assign and print it as an Error, and a President of the Commons House, or both Houses power of judicatures together : when as it is a most undeniable double Parliamentary resolution, of the Kings and Lord's sole right of judicature, & of their declaring and judging in Parliament what is Treason, and what not within the Statute of 25 E. 1. without the Commons assent or privity, and an unanswerable refutation of his sole opinion to the contrary in his 3 Institutes, c. 2. p. 22. which he opposeth against not only these two Parliamentary resolutions, but likewise against 5 H. 4. n. 11, 12.15 and 17 R. 2. rot. Parl. n. 20. there quoted by him. By this you may judge how little credit is to be given to Sir Edwards quotations and authority, in matters concerning Parliamentary Judgments and Records.
In the Parliament of 28 H. 6. rot. Parl. n. 14. to 53. The Commons generally accusing, William de la Pool Duke of Suffolk to the King and Lord's, he thereupon required of the king, that he might be specially accused, and heard to answer to that which many men reported of him to be an untrue man, making therewith a protestation of his manifold good services in the wars, and as a Privy Counselor for sundry years; and so asking God mercy, as he had been true to the King and his Realm, required his purgation ; The 26 of January the Commons required, that for this his Confession he might be committed to ward. The Lord's and Judges upon consultation, thought there was no good cause for that, unless some special matter were objected against him. The 28 day of January, the Speaker declared that the said Duke (as it was said) had sold the Realm to the French, who had prepared to come hither, and for his own defense had furnished Wallingford Castle with all warlike necessaries; upon whose request the said Duke was then committed to the Tower of London. The 7 day of February, the Commons by William Trussel their Speaker, brought up and presented to the King and Lord's in the Lord's House a Bill against the said Duke, containing an impeachment of several High Treasons committed by him against the King, requiring of the Lord's all their Articles therein to be enacted, with prosecution therein. The 9. of March they exhibited new articles of complaint against the Duke, comprising sundry misdemeanors against the king, and other persons, which they require might be enrolled, and that the Duke might answer to them. The 9. of March the Duke was brought by the kings writ from the Tower into the Parliament Chamber, before the King and Lord's; where the Articles were rehearsed to him, who desired Copies of them, which was granted: And he for more ready answer was committed to certain Esquires, to be kept in the Tower, within the kings palace. The 14 of March the Duke appeared before the K. & Lord's where on his knees he denied as untrue the 8 Articles of Treason, and the same offered to prove, as the King shall appoint.
The Chief Justice thereupon by the kings command, asked this Question of the Lord's, what advise they would give the King, what is to do further 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 Lord's Spiritual and Temporal then being in Town (being 24 in all) into his Inner Chamber within his Palace of Westminster, where when they were all assembled, he then sent for the Duke thither; who coming into the Kings presence, kneeled down, and continued kneeling till the Chancellor of England had delivered the kings command to him ; and demanded of him, what he said to the Commons Articles, not having put himself upon his Peerage? Whereupon the Duke denied all the Articles touching the kings Person, and state of the Realm, as false and scandalous. And so not departing from his said Answers, submitted himself to the kings Rule and Governance, without putting himself upon his Peerage. Where thus the Chancellor told him. That as touching the great and horrible crimes contained in the first Bill, the king holdeth him neither declared nor charged. And as touching the second Bill, containing misprisions which are not criminal, the king by force of his submission, by his own advice, and not reporting him to the advice of the Lord's, nor by way of judgment, for he is not in place of judgment, putteth you to his Rule and Governance; that before the first of May next coming, he should absent himself out of the kingdom of England, and all other his Dominions, in France, or elsewhere, and that he, nor no man for him, should show or wait any malice, nor hate, to any person of what degree soever of the Commons in the Parliament, in no manner of wise, for anything done to him in this Parliament or elsewhere. And forthwith Viscount Beaumont, in behalf of the said LORD'S both spiritual and Temporal, and by their advice, assent, and desire, said and declared to the Kings Highness; That this that so was decreed and done by his Excellency, concerning the person of the said Duke, proceeded not by their advice and Counsels; but was done by the Kings own demeanoir 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 should not be, nor turn in prejudice nor derogation of them, their heirs, ne of their successors in time coming; but that they may have and enjoy their liberty, as they, or any of their Ancestors and Predecessors had and enjoyed before this time.
This is the sum of this large Record, which makes nothing to the purpose for which Sir Edward Cook cites it in his 4 Institutes, p. 25. That it is ERROR when both Houses join not in the Judgment. For first, here is nothing but an impeachment only by the Commons of a Peer, who ought to be tried, judged only by his Peers, not by Commoners. Secondly, there was no judgment given in Parliament in this case, but only a private Award made by the King, out of the Parliament House in his own Chamber, in presence of the Lord's. Thirdly, the Lord's entered a special protestation against it, as not made by their advice or consent. Fourthly, they enter a special claim in the Parliament Roll, for the preservation of their Right and Freedom of Peerage for hereafter, both of being tried and judged only by their Peers in Parliament ; and so an express resolution, that the Peers in Parliament are and ought to be Judges, especially of Peers, not the Commons. These Records of these cited at large, lest Sir Edward Cooks brief quotation and mis-recital of them should deceive the credulous or ignorant Readers.
In the Parliament of 31 H. 6. rot. Parl. n. 28. Thomas Earl of Devonshire, was accused of Treason, tried for, and acquitted thereof by his Peers, before Humfrey Duke of Buckingham, Steward of England for the time being: And for that the Duke of York thought the loyalty of the said Earl to be touched; thereupon the said Earl protesting his Loyalty, referred himself to further Trial as a Knight should do: upon which declaration THE LORD'S in Parliament acquitted him as a loyal Subject.
Edward Duke of York, with the Earls of March, Warwick, Salisbury, Rutland, John Lord Clinton, and others, were impeached and attainted by Judgment of the Lord's in Parliament, of High Treason, for raising forces and levying war against King Henry the 6. and afterwards attainted by Bill; in the Parliament of 38 H. 6. n. 7. to 26.
In the Pa • liamenr of 1 E. 4. n. 17. to 71. The Duke of Exeter, Viscount Beamont, the Earls of Pembroke Wilts, and Devonshire, the Lord's Nevill, Roos, Gray, Dacre, Hungerford and others, were first attainted and condemned of High Treason by THE LORD'S, and after by Bill, for levying war against King Edward the fourth. The Duke of Somerset, and others in the Parliament of 4 E. 4. n. 28. to 39. and John Vere Earl of Oxford, with others in the Parliament of 14 E. 4. n. 34. to 41. were in the same manner for the same offense, attainted of High Treason, and their Lands forfeited. To pretermit all other Attainders of this Nature in cases of High Treason, in the reigns of Henry the 8. Edward the 6. Queen Mary, Queen Elizabeth, and King James, both in our English and Irish Parliaments, formerly touched, p. 196, 197, 198 199. In the Parliaments of 18, & 21 Jacobi, Sir Francis Bacon Viscount St. Alban, Lord Chancellor of England, and the Earl of Middlesex Lord Treasurer of England, were impeached, accused, convicted of Bribery, Corruption, and other misdemeanors, removed from their places, fined ( Middlesex 50000 l. ) imprisoned, made uncapable of any Office, and thus censured by Judgment of the Lord's house, as the Journals of those Parliaments inform us. In the Parliament of 2. Caroli, the Duke of Buckingham impeached the Earl of Bristol, and the Earl of Bristol impeached this Duke before the Lord's, in sundry Articles, for divers misdemeanors touching the Spanish match, King, Prince, to seduce him in his religion, praying judgment of the Lord's thereupon against each other. In the Parliament of 3. Caroli, the Duke of Buckingham was accused and Impeached by the Commons before the Lord's for sundry high Misdemeanors, and the Parliament thereupon dissolved to prevent his censure.
In this very Parliament of King Charles now sitting, Thomas Earl of Strafford was accused and impeached by the House of Commons of High Treason, and other misdemeanors, comprised in sundry Articles, which they transmitted • o the House of Lord's, desiring that he might be put to answer them, and such proceedings, examination, trial and judgment thereupon had and given against him by the Lord's, as is agreeable to Law and Justice. Hereupon he was openly tried in Westminster Hall, before the House of Lord's, there sitting as his Judges, where the House of Commons prosecuted and gave in Evidence against him sundry days; and in conclusion, demanded the Lord's to give Judgment against him, in the Judicial way. After which they proceeded against him by way of Bill; not to decline their Lordships Justice in a Judicial way; but to husband time, by preventing some doubts and as the speediest and soonest way: Upon the passing of which Bill, he was beheaded and executed as a Traitor.
On the 26 of February, 1640. William Laud Archbishop of Canterbury, was accused and impeached of High Treason by the House of Commons of 14. Articles then transmitted by them to the House of Lord; The first whereof was this; That he had traitorously endeavored to subvert the fundamental Laws and Government of the Realm, and instead thereof, to introduce an Arbitrary and Tyrannical Government against Law : And the last of them, this: That he had labored to subvert the rights of Parliament and the ancient Course of Parliamentary proceeding (which the New-modellers of our Parliaments, more guilty hereof by many degrees than he, may do well to consider:) Upon which they prayed, from the Lord's such proceedings, examination, trial and Judgment against him, as is agreeable to Law and Justice . Upon these Articles he was brought to a public Trial in the Lord's House the 12. of March, 1643. and after 17. whole days spent in his mere Trial, and proof of the Charge against him, and his defense thereto morning and evening ; and several other days spent in the hearing of him and his Council, and the Commons Reply touching his Charge and the matters of Law, whether the Charge pr • against him amounted to High Treason; the Lord's upon most mature deliberation, voted him Guilty, of all the Articles and matters of fact charged against him, and also of High Treason; and thereupon passed an Ordinance for his Attainder ; by virtue whereof he was beheaded as a Traitor on Tower-Hill, January 10. 1644.
To these I might add the seveeal Articles of Impeachment transmitted by the House of Commons this Parliament to the Lord's, against Matthew Wren, Bishop of Norwich the 20. of July 1641. against William Pierce Bishop of Bath and Wells ; and against the Bishops of Winchester, Coventry and Litchfield, Gloucester, Chichester, Exeter, St. Asaph, Hereford, Eli, Bangor, Bristol, Rochester, Peterborough and Landaffe ▪ August 4. 1641. requiring such proceedings from the Lord's against them, as to Law and Justice shall appertain. All which are a superabundant impregnable Evidence of the Lord's inherent Judicial power and right of Judicature in our English Parliaments, even by the Commons House own Impeachments and acknowledgements, against the Levellers pretences, to the contrary.
By all these forecited presidents it is most apparent: 1. That the King and Lord's in our Parliaments in all ages both before and since the Commons admission to sit and vote in Parliaments, have been the sole Judges of Ecclesiastical Peers and Lord's in all criminal cases, without the Commons. 2ly, That the Lord's and Peers of the Realm, (except only in case of appeal • ) both in and out of Parliament, are triable only by their Peers: And therefore the Trial, condemnation and execution of any of them by Marshal Law, or now misnamed High Courts of Justice by Commoners and others who are not their Peers, is most illegal, unjust, and naught else but murder ; as the Parliaments of 1 H. 4. rot. Parl. n. 45. of 1 E. 4. rot. Parl. n. 18. resolve▪ and as it was adjudged in the case of Thomas Earl of Lancaster, Pa • ch. 39 E. 3. Coram Rege, Rot. 92. Wi • . Cooks 3. Institutes, p. 52, 53.
Secondly, The next and main question now con • roverted, will be; Whether the King, & House of Peers, have any lawful or sole power of Judicature in and over the persons, of the Commons of England, as well as over Peers, in criminal causes, misdemeanors, offenses, or breaches of their Parliamentary privileges; so far as to fine, imprison, censure, judge or condemn them in any kind, without the House of Commons concurrent vote or judicature?
This the ignorant sottish Levellers, Sectaries, (seduced by their blind guides, John Lilburn, and Overton ) peremptorily deny: the contrary whereof, I shall here infallibly make good, to their perpetual shame and refutation, by unanswerable Reasons and presidents in all ages.
2ly, Our Histories, Law-books and Records agree, that in ancient times, our Earls, who were called Comites, or Counts from the word County, had the chief Government and Rule of most of the Counties of this Realm under our King, and that they, and the Barons were the proper Judges of the Common people, both in criminal and civil Causes in the Tourns, & County-Courts ; even by virtue of their Dignities and Offices, as our Sheriffs are now; in which Courts they did instruct the people in the Laws of the Land ; and administer Justice to them in all ordinary Civil and criminal causes. For proo • whereof you may peruse at leisure, M. Seldens Titles of Honor, Part 2. c▪ 5. Sect. 5. Sir Edw. Cooks Institutes on Magna Charta, c. 35. His 4. Institutes, c. 53. the Laws of King Edgar, and Edward there cited. Spelmanni Glossarium, Tit. Comites, Mr. Lambards Archaion, f. 135. Horns Mirrour of Justices, c. 1. Sect. 2, 3. If then they were Judges of the Commons and people in every County, by reason of their Honors, Dignities, even in ancientest times, in ordinary Causes; there is great right and reason too, they should be their Judges also in all their extraordinary causes, as well criminal as civil, even in Parliament,
3ly, The Lord's, Peers and great Officers of State, in respect of their education, learning, experience in all proceedings of Justice and Law, are more able, fit to be Judges of Commons in Parliament, than ordinary Citizens and Burgesses (especially if chosen out of the Cities and Boroughs themselves for which they serve, as anciently they were, and still ought to be by the Statutes of 1 H. 5. c. 1. 32 H. 6. c. 15. and by the very purports of the writs for their election at this very day: & de qualibet Civitate Com. praedict. DUOS CIVES, & de quolibet Burgo DUOS BURGENSES, ) who have better knowledge, skill in Merchandise, and their several Trades, than in matters of Judicature, or Law. Therefore the Right of Judicature was thought meet, even after the Commons admission to our Parliaments, to be still lodged and vested in the House of Peers, as before, who are the ablest and fittest of the two, rather than in the Commons House.
4ly, Since the division of the Houses one from another, (if ever they sat together, which cannot be proved) the House of Peers are dis-engaged and indifferent parties between the King and Commons, and so fittest of all to he Judges between them, as the Mirrour of Justices, c. 1. resolves, so it hath been still furnished with the ablest Temporal and Spiritual persons for their Assistants in judgment and advice; to wit, with all the Judges of the Realm, Barons of the Exchequer, of the Coy • , the Kings learned Counsel, the Masters of the Chancery who are Civilians or Lawyers, the Master of the Rolls, the Principal Secretaries of State, with other eminent persons for parts and learning, and the Procuratores Gleri; all which are called by Writ to assist, and give their attendance in the upper House of Parliament, where they have no voices, but are to give their counsel and advice only to the Lord's when they require their assistance, especially in cases of Law and Judicature. For proof whereof you may consult the Statutes of 31 H. 8. c. 10. The Register of Writs, f. 261. Fitz. Nat. Brev. f. 229. a. b. M. Seldens Titles of Honor, part 2. c. 5. Sir Edw. Cooks 4 Instit. p. 4, 5, 6, 44, 45, 46. and the Parliament Rolls and Authorities there cited by them, seconded by our present experience. Now the House of Peers being thus assisted with the advice of all the Judges of England, the Kings learned Counsel, and others ablest to advise them in all Criminal, Civil or Ecclesiastical matters, cases that come before them: were in this regard thought fittest by our Ancestors, and the Commons themselves (who have no such assistants) to have the principal and sole power of Judicature, in all civil and criminal causes as well of Commoners as Peers, that are proper for the Parliaments Judicature by way of censure or redress.
5ly, There can be no judgment given in any of the Kings Courts in Criminal causes, but where the King is personally or representatively present, sitting upon the Tribunal, and where the proceedings are Coram Rege. And therefore in the end of most ancient Parliament Rolls, we find the Title of Placita Coronae, CORAM DOMINO REGE IN PARLIAMENTO SUO, &c. as in 4 E. 3. 21 R. 2. 1 H. 4. and other Parliaments. Now as the Kings person is represented, Judgments given, Justice executed, in all Criminal and Civil cases in the Kings Bench, Eyres, Goal Deliveries, Oyers and Terminers, and all his other Courts, by his Judges and Justices, in his absence▪ So is it represented in our Parl. in the Lord's house by his Commissioners and the Lord's and Judgments given, Justice executed by them in all criminal & civil causes; and no ways by the Commons, who neither sit, nor judge in the House of Peers. Therefore the House of Peers only, no • the Commons, are the true and proper judicato • y ; where the King the supreme judge fits usually in Person, and always in representation in his absence.
6ly, There can be no legal trial or Judgment given in Parliament, in Criminal causes or others, 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 Oath ; and the whole House of Commons no such power, but to take Informations without Oath, which neither they nor their Committees can administer, unless by special Order and Commission from the King or Lord's : Therefore the power of judicature in Parliament, even in Commoners cases, is inherent only in the House of Peers, and not in the Commons House.
7ly, It is a rule both of Law and justice, that no man can be an informer, prosecutor, and judge too of the persons prosecuted, & informed against it being contrary to all grounds of justice: therefore he ought to complain and petition to others for Justice. But the Commons in all ancient Parliaments, and in this present, have been informers and prosecutors (in nature of a Grand Inquest, to which some compare them, being summoned from all parts of the kingdom to present public Grievances and Delinquents to the King and Peers for their redress ) and thereupon have always petitioned, complained to the King and Lord's for Justice against all other Delinquents and offenders in Parliament, not judged them themselves: witness their many impeachments, accusations, complaints sent up and prosecuted by them in former Parliaments, and this, to the Lord's, not only against Peers ▪ but Commoners, of which there are hundreds of presidents this very Parliament: Therefore the House of Lord's hath the proper right of judicatory vested in them, even in Cases of Commoners, not the Commons ; who are rather Informers, Prosecutors, and Grand Jury men, to inform, impeach, than Judges to hear, censure, determine and give judgment, as is resolved in 1 H. 4. n. 79.
8ly. Those who are proper Judges in any Court of Justice, whiles the cause is judging sit in their Robes, and that covered, on the Bench, not stand bare at the bar ; sweat and examine the witnesses in the cause, not produce them or manage the evidence; and when the cause is fully heard, argue and debate the business between themselves, and then give the definitive sentence. But in all cases that are to be tried and judged in Parl. the Lord's only sit upon the Bench, and that covered, and in their Parliamentary Robes the badges of Judicature; but the Commons stand and that bare at the Bar, without any robes at all: the Lord's only swear, examine the witnesses, and judge of their testimony; the Commons only produce the witnesses, press and manage the evidence; and when the bu • nesse is fully heard, the Lord's only debate the cause among themselves, and give the final Sentence, Judgment without the Commons, (though sometimes in their presence) and that both in cases of Commoners and Peers. Therefore the Lord's and House of Peers are sole Judges in Parliament, not the Commons.
9ly. The Commons themselves in all ages since admitted into our Parliaments, have always presented their Petitions in Parliament to the King and Lord's alone, for redress of all Grievances, wrongs, misdemeanors, abuses whatsoever, public or private, criminal or civil, ecclesiastical, marine, or military: And the Lord's House alone have in all ancient Parliaments appointed particular persons of their House to receive all Petitions, Triers of them to hear and answer them by their advice, and the kings assent, when necessary ; which Triers of Petitions had power given to call the Lord Chancellor, Treasurer, Chamberlain, Judges, kings Servants, and others to this assistance, prescribing where, when their Petitions should be presented, examined, redressed, at all our Parliament Rolls a • est, and Sir Edward Cook, himself relates: There being few or no Petitions at all presented by any to the Commons before •• H. 7. c. 19. &. 4 H. 7. c. 6. These Petitions then presented to them, and all ever since, with all in this present Parliament, being only to this end, that they upon the examination of the truth, matters, complaints, grievances mentioned in them, might transmit and represent them in the name of the Commons House to the Lord's House, for to give, full redress, relief, and judgment on them to the Petitioners▪ not for the Commons themselves to judge, finally determine them, or give relief upon them without the Lord's; as all the transmissions of private and public Petitions by the Commons to the Lord's heretofore and in this Parliment, in the cases of Dr. Layton, Dr. Bastwick, Mr. Burton, Mr. Walker, myself, and of Lilburns own Petition against his censure, attest. Therefore the Judicature of our Parliaments, must wholly rest and entirely reside in the Lord's House, as well in all Criminal as civil cases, both of Commoners and Lord's.
10ly. The surest badge and highest evidence of the right and exercise of Juridical, and Judicial Authority in Parliament, is the examination, affirmation, control, repeal, nulling, adjudging, and final determining all Errors in Judgments, Decrees, Proceedings, & all Misprisions, Abuses, Corruptions, grievances whatsoever of Judges, Justices, in all other Courts of Justice, Civil, Ecclesiastical, Marine or military; Now the Lord's-alone in Parliament, upon Wtits of Error, Appeals, Complaints, Petitions, &c, examine, confirm, repeal, null, redress, and finally determine all Errors, misprisions in Judgments, Decrees, Proceedings, and all Abuses, Corruptions, Grievances whatsoever, in all other Courts of Justice; whether Civil, as the Kings Bench, Chancery, Exchequer Chamber, Common Pleas, Exchequer, Court of Wards, Courts of Requests, Stanneries, &c. or Ecclesiastical, as the High Commission, Archbishops, Consistories, the Convocation, and the Admiralty, Court Marshal, Council Table, Star-chamber, and in former Parliaments, as is evident by sundry presidents in former ages, and in this present Parliament of King CHARLS in the cases of Dr. Layton, Dr. Bastwick, Mr. Burton, Lilburn himself, Mr. Grafton, Alderman Chambers, Mr. Rolls, Sir Rob▪ Howard, Alderman Langham and Limry, Mr. Johns, and le Gay, with sundry others: But more especially in cases of Writs of Error brought in Parliament by Peers or Commoners, upon any Erronious judgments touching their real or personal estates, lives, limbs, liberties, persons, upon Indictments or Attainders, In all which writs the King and Lord's only are sole judges (without the Commoners) and the returns of the proceedings upon such Writs are only before the Lord's in the Vpper House, secundum legem et consuetudinem Parliaments: So Sir Edward Cook himself expressly resolves in direct terms, in his 4 Institutes, p. 21, 22, 23. And 22 E. 3.3. Fitz Error 8 Br. 3.1 H. 7.20, 21, 22. Br. Error, 137. Old Book of Entries, p. 302.16 E. 3. Fitz. Brev. 651.21 E. 3.46. Br. Error, 65.29 E. 3.24.39. Ass. 18.42. Ass. 22.7 H. 6.28. 8 H. 5. Fitz. Error 88.19 H. 6.12.35 H. 6.19.37 H. 6.16.11 H. 4.65.9 E. 4.3.2 R. 3.22.37 H. 8.14, 15, 25. Dyer, f. 62.196, 201, 315, 375. intimate as much. This is most clear by the Writs of Error, Judgments and Proceedings on them in the Parliament House, before and by the Lord's alone mentioned in the Parliament Rolls themselves, as 14▪ E. 1. ro • Parl. 1.4 E. 3. n. 13, 14.21 E. 3. n. 65, 66.28 E. 3. n. 8. to 14.50 E. 3. n. 38.1 R. 2. n. 28, 29, 105.2 R. 2. n. 31, 32, 33, 37, 38. Parl. 2. and Parl. 1. n. 21. to 27.3 R. 2. n. 19.20, 21, 22.6 R. 2. n. 17.7 R. 2. n. 20, 21.8 R. 2. n. 13, 14, 15, 16.13 R. 2. n. 16, 17▪ 15 R. 2. n. 22, 23, 24.16 R. 2. n. 17, 18.17 R. 2. n. 17.19. • 8 R. 2. n. 11, 12, 13.20 R. 2. n. • 6.21 R. 2. n. 25, 55. to 66, 71.1 H. 4. n. 91, 92.2 H. 4. n. 38, 39, 40.4 H. 4. n. 26.5 H. 4. n. 40.6 H. 4. n. 31.1 H. 5. n. 19.2 H. 5. n. 13, 14.3 H. 5. n. 19. with sundry Writs of Error in succeeding Parliaments, and this now sitting, adjudged, determined by the King and Lord's alone, without the privity or interposition of the Commons. A truth so clear, that Lilburn himself in his Argument against the Lord's jurisdiction, confesseth i • . If then the Lord's House, be the so • e Judges in all Writs of Error, and Appeals from all other Courts of Justice, concerning the Lands, Tenements, Goods, Estates, Liberties, Members, Lines, Attainders of all English Freeholders, and Commoners whatsoever, notwithstanding the Statute of Magna Charta, ch. 29. No Freeman shall be • aken or imprisoned, &c. neither will we pass upon him nor condemn him, but by the lawful judgment of his Peers, &c. (the grand and principal objection against the Lord's Judicature in Cases of Commoners) then by the self same reason they are their lawful Judges, and may regally proceed against them in all other criminal or Civil causes, especially in cases of breach of their own Privileges, wherein they are the sole and only Judges, since no other Court can judge of, nor yet punish them, as Sir Ed. Cook resolves, being properly triable only in Pa • liament (as contempt against all other Courts, are punishable and triable by themselves alone) the present cases of Lilburne and Overton.
Now that they are and always have been so de facto (unless by way of Bill of Attainder, or in such extraordinary cases when their concurrence hath been desired) even in criminal cases, misdemeanors and offenses of Commons as well as Peers, I shall prove by most clear and infallible evidences and presidents as well ancient as modern,
Anno 1096. William de Anco and William de Alderi were hanged for Treason against William Rufus, by judgment of the Lord's, in a Parliament at Salisbury.
King Henry the 2. Anno 1166. holding a Council at Oxf • quidam pravi dogmatis seminatores tracti sunt IN JUDICIUM, praesente Rege et Episcopis Regni; quos à fide Catholica devios, et in examine superatos, facies cauteriata notabiles cunctis exposuit, qui expulsi sunt à regno. These Heretics thus branded in the face and banished the Realm by the judgment of the King and this Council, ae Nubrigensis informs us, were above 30. men and women who came out of Germany into England, under one Gerard their Captain, styled Publicans, who went about the Country to spread their errors ; but at last being detected, they were apprehended and cast into prison ; and then brought before the King, and a Council of his Bishops ; where being convicted of Heresy, they were adjudged by the K. to be publicly whipped, branded in the face, and then banished the Realm. Hujus severitatis pius rigor, non peste illa quae jam irrepserat Angliae regnum purgavit, verum etiam ne ulterius irreperet incusso haereticis terrore praecavit, as Nubrigensis observes.
In the year 1224. the 8. of King Henry the 3. his reign, the King requiring a restitution and resumption of his Castles and Lord's detained from him by some Nobles and others, who at last for fear of the Bishops excommunication against such as detained them, and disturbed the peace of the Realm ; and also of the Kings power and justice, much against their wills, reddiderunt singuli Castella, et municipia, et honores, et custodias Regi quae ad coronam spectare videbantur : Thereupon Falcatius de Breut, a Norman born, a Soldier under King John in the Barons wars, trusting on the Kings and other great men's favors, fortified the Castle of Bedford, situated on another man's ground, and presuming on his friends, and his own military power and wealth gained in the wars, he feared not violently and unjustly to take away the Freeholds, lands and possessions of divers of his neighbors, and more epecially he disseised 52. Freemen in the Manor of Luiton of their Freeholds and Tenements without judgment, and appropriated their Common pastures to himself: Whereof complaint bing afterwards made to King Henry the 3. Anno 1224. the King assigned Martin de Pateshulle, Thomas de Multon, Henry de Braibroc, and certain other Justices, to take the recognition of the parties complaining of these disseisins, by an Assise of Novel disseisin, and to do them Justice. Who having received their recognitions according to custom, the said Falcatius was condemned to pay them costs and damages for the spoils done in the said Tenements, to which the Plaintifs were judicially restored. Which Falcatius taking very impatiently, being likewise amerced one hundred pounds to the King for every of the said Tenements, for his forcible entry into them; he in a great fury commanded his Garison soldiers in the Castle of Bedford, to march armed to Dunstaple, where the Justices Itinerant sat and gave judgment against him, and to take and bind them in chains, and carry them to Bedford Castle, and there detain them close prisoners in the Dungeon. The Justices having notice thereof, fled thence with all speed, someone way, some another; but Henry de Braibroc flying, was at unwares taken by the Soldiers, who used him very inhumanly, then carried him prisoner to Bedford Castle, and there kept him prisoner. King Henry at that time was at Northampton, where he held a Parliamentary Council, Cum Archiepiscopis, Episcopis, Comitibus, Baronibus, et aliis multis, de regni negotiis tractaturi: voluit erim Rex uti consilio MAGNATUM SUORUM de terris transmarinis, quas Rex Francorum paulatim occupaverat : but it happened otherwise than he hoped: For the rumor of this act of Falcatius being divulged, the wife of the said Henry Braibroc came to the King at Northampton; et audiente univer • o Concilio, de viro suo cum lachrymis querulans deposuit; Quod Rex factum minus indign▪ ferens; quaesi vit Consilium a Clero simul et Populo (to wit, the Spiritual and Temporal Lord's, Clerus Regni & Populus when single, being frequently used for the Lord's Spiritual and Temporal, both in Matthew Paris, Howden, Brompton and others, not for the inferior Clergy and Commons house, not then in being, as some Antiquaries mistake) quid sibi super tanta injuria foret agendum? At omnes una voice concilium Regi dederunt, quatenus sine mora et omnibus aliis praetermissis negotiis in man • valida et armata ad Castrum praedictum procedens, tantam temeritatem studeat vindicare. Cumque Domino Regi placuisset SENTENTIA, ipso jubente omnes ad arma quam citius convolantes, ad castellum praedictum de Bedeford, tam Clorus quam Populus pervenerunt ; The whole Parliament marching in person to execute this their Sentence upon these transcendent military Malefactors. Hereupon the King sending Messengers to the Commanders of the Castle, required entrance to be given to him, and commanded Henry Braibroc his Justice to be rendered. But William de Brent, Brother of Falcatius, and the rest within it, answered the Messengers, that they would not render the Castle nor Justice, unless they had a command from their Lord Falcatius, and especially for this reason, quod Regi de Homagio vel fidelitate non tenebantur astricti. With which answer the King being much incensed, commanded the Castle to be presently encompassed with military trenches; and those within prepared to defend their walls and Bulwarks: Then the Archbishop and all the Bishops with burning Papers smote Falcatius himself and all within the Castle with the sword of Excommunication: The King commanded all warlike engines to be brought, and gave many assaults to the Castle to win it by force, since they refused to render it; many were slain and wounded on both sides. At last after many weeks siege the Kings soldiers entering the Castle by force, those within it being unable to hold out any longer, rendered themselves to the Kings mercy: who putting them in close custody and chains, commanded 24 of the Knights and Soldiers (who stouted it most against him even when the siege was ended) QUI OMNES SUSPENDIO ADJUDICATI SUNT, to be hanged that day: Matthew Westminster writes, there were near one hundred of them hanged up. Henry Braibroc being then restored to the King safe and sound, rendered him many thanks. In the mean time, the King sent an armed Troop to seek out and apprehend Falcatius, and bring him prisoner to him: who having notice thereof fled into Wales for shelter: The K. thereupon swore, that if he took the Castle by force, he would hang up all who were within it ; And withal seised upon all Falcatius his Manors, Lands, Corn, goods and chattels throughout England, as confiscated. At last Falcatius hearing that the Castle was taken, and his Brother and soldiers hanged, came to the King to Bedford, under the con • uct of Alexander Bishop of Coventry, and there casting himself at the Kings feet, humbly implored his mercy, in respect of the many great and costly services he had done in his father and himself in time of war▪ Tum Rex per Consilium of his Nobles and Barons) tradidit illum Casteliis, Terris et rebus omnibus spoliatum sub custodia Eu • ch • Londoni 〈◊〉 E • iscopi, donec quid de illo ageret esset sententialiter de • nitum. Et sic quasi in momento idim Falcatius de duissimo pauperimus effectus multis et maxim nocentibus poterit fieri in exemplum. Regi autem pro maximis laboribus et expensis (in the siege of this Castle) tam à Clericis quam à • nicis concessum est per totam Angliam Carucagium, de qualibet caruca duo solidi argenti. MAGNATIBUS item concessit Rex scutagium, scilicet de scuto quolibet duas marcas sterlingorum: et sic omnes ad propria recesserunt. Castellum quoque illud fecit Rex complanari et redigi in acervos A most memorable example of regal and Parliamentary Justice upon insolent contemners of Law, Justice and Justices, the whole Parliament turning Soldiers, and continuing together at the Siege of this Castle above two Months space, till they had taken the Castle and Malefactors by force, and done execution on both. And an eminent president of the Ks. & Lord's Jurisdiction in causes both of Commoners and Soldiers, as well as Peers and Nobles.
Henry de Bathonia, a learned Knight, most skillful in the Laws of the Realm, one of the Kings Justices and special Counselors, in the year 1251, (the 35 of Henry the 3.) was most grievously defamed and accused of bribery and corruption, in the Office of his Justiceship, wherein he feared not treacherously to empty other men's purses, to fill his own, growing thereby in a short time extraordinary rich in Rents, Monies, Gold and Silver, being instigated thereunto by his wife; whereby adeo turpibus per fas et nefas emolumentis inhiabat, ut in una sola itinaratione Justiciaria dicebatur, plusquam ducentas libratas terrae sibi appropriare : Whereupon appellatus est de infidelitate et proditione, by Philip de Arci Knight, coram Rege et Curia Regis, And attached for to answer it. John Mansell the Kings Chief Justice proffered to bayl him, and to be his Manucaptor, ut staret Justitiae, but he could not be heard, the King being so incensed, that he answered he would take no Clergy-man for his bayl in such a case, reputing it to be HIGH TREASON ; at last by the Bishop of London's & others mediation & intercession, he was bayled by 24 Knights, and delivered to their custody, pro ipso Hen. responsionem & justificationem rite, et judicialiter statuto termino facturum. After which by gifts and large promises he earnestly solicited his friends to intercede for him with the King, • nd procure his pardon; or else, if they could not effect it▪ to stand constantly for him in the day of peril, armis, si necesse sicut et equis communiti, which they by unanimous consent promised to do. The King being privily informed thereof majori iracundia accensus, omnia munera et verba reconciliations praecise refutabat, jurans quod per medium judicii districti necessario fuerat transiturus. Upon this, he by entreaties and gifts procured Earl Richard to mediate to the King for him; adjungens sub tremendi judicii attestatione, quod si Dominus Rex mortem suam, imo etiam exhaeredationem procuraret, totum regnum in ipsum Regem insurgeret, & tota perturbaretur; quod si fieret, cum sub sint aliae causae, & maxim alienigenarum injustae dominationes, & Anglorum oppressiones, non sedaretur schisma ventilatum. The Earl hereupon most effectually interceded for him, and the peace of the Realm, but could not mitigate the Kings wrath and indignation. In March there was a great Parliament held at London, where Henry was appointed to appear and answer; who came thither guarded with a great multitude of Soldiers of his Wives, and his own kindred and friends: Whereupon the King being highly incensed, he was on every side grievously assaulted and accused by his adversaries, and by the King more heavily than the rest; imponens eidem inter caetera, quod totum regnum perturbavit, et Barnagium universum contra ipsum Regem exasperavit: unde seditio generalis imminebat. Fecit igitur acclamari voice praeconia Londini et in curia, ut si quis aliquid habere actionis vel querelae adversus Henricam de Bathonia, veniret ad curiam ante Regis praesentiam, ubi plene exaudiretur. Insurrexerunt igitur multi queruli contra eum, ita quod unus etiam sociorum suorum, scilicet Justitiarius palam protestaretur, quod unum facinerosum convictum & incarceratum abir • permisit impunitum, sine judicio, opimis respectus muneribus: quod factum est in Regis praejudicium, & Justitiariorum comitum suorum periculum et discrimen. Rex igitur magis inde provocatus, ascendit superius, exclamavitque, dicens: Si quis Henricum de Bathonia acciderit, quietus sit a morte ejus, & quietum eum protestor: & sic propere recessit Rex. Et fuerunt ibi multi, qui in ipsum Henricum hostiliter irruissent, nisi Domini Johannes Mansel prudentia eorum impetum temperans, refranasset: Dixit enim, Domini mei et amici, non est necesse quod in iu • a praprepere dicitur, prosequamur. Poenitebit forte dominum nostrum jam elapso irae tempore haec innotuisse. Praeterea, si aliquid • iolentiae ipsi Henrico intuleritis, ecce Episcopus Londinonsis, qui spiritualem, et alii amici ejus militares, qui vindictam exercebunt materialem, et sic in magna parte cessavit. Extunc igitur procurante efficaciter Comite Richardo et Episcop • memorato, mitius actum est cum eo. Dictum enim est domino Regi secretius, quod mirum est, quod aliquis ei curat servire, cum eis post ministerium etiam mortem nititur infer. Promissa igitur quadam pecuniae summa, a mortis discrimine recessit liberatus. After which he paying to the King 2000 marks for a fine, and being reconciled to the King, ad Curiam est reversus, immemor laqueorum quos evaserat. Here we have, 1. A corrupt Judge accused of bribery by others, and by the King of rebellion and sedition, and that before the Lord's in Parliament. 2ly. A Proclamation for all that were grieved to complain against him. 3ly. A rash unjust sentence given against him by the King himself, for any man that would to kill him, with impunity. 4ly. the Lord's opposition and contradiction of this sentence, and its execution as unjust and dangerous. 5ly. A remission of his sentence by the Lord's mediation, and a fine imposed and paid to the King for his offenses.
In the 49 year of King Henry the 3. at the Parliament held at Winchester, divers Commoners, as well as Lord's were attainted and condemned of High Treason, for levying war against the King; their persons imprisoned, their lands and goods confiscated, and the liberties of the City of London forfeited by judgment of the Lord's.
Anno • 290. King Edward the 1. held a Parliament at London, at which time,
It appears by the Clause Roll of 5 E. 2. m. 22. dorso, and Rot. Finium, 5 E. 2. m. 11. in Schedula, that in a Parliament held at Stamford 3 E. 2. the Commons of England exhibited sundry Articles of complaint to the King: Amongst others, that they were not used as they ought to be by THE GREAT CHARTER, in taking Prises and Purveyances without money, &c. That the King by his Ministers took ijs. of every Tun of wine, and ijs. a cloth from Merchants aliens, and 3 d. pur aver de poys, to the damage of his people, and hindrance of trade: which new Impositions being against Law, the King promised to redress for the future, and to content himself with the Prises and Customs anciently due. They likewise complained of the abuses, oppressions, and extravagances of Purveyors, Constables of Castles and Escheators, and abuses of Protections and Pardons granted by the King to Murderers and other Malefactors to their encouragement ; whereto redress was promised. In their 6. Article, they complained, That the Knights, Citizens and Burgesses of Parliament came up with divers Petitions for matters not remediable at the Common Law, and could not find to whom to deliver them. Whereunto was answered; The King willed, that in his Parliaments for time to come, certain persons should be appointed to receive Petitions; and that they should be delivered TO HIS COUNCIL, as was used in the time of his Father, and examined and answered by him, with their advice. Whence we find in all our Parliament Rolls ever since in the beginning of every Parliament certain persons nominated by the King and Lord's, being Members or Assistants of the Lord's house, to receive the several Petitions of England, Ireland, Scotland, Gascoigne, Jersey, Gernsey, Alderney, and other Isles; and other persons of the LORD'S House appointed to try, examine and answer them in the Kings name and behalf ; as he by their advice shall think meet; and sundry Petitions of Grievances of all kinds presented to them, and answered accordingly by the King and Lord's in every Parliament, as well by the whole house of Commons, as by particular Counties, Cities, Corporations and private Persons; a most clear Evidence, that the King and Lord's are the sole Judges of all criminal and civil causes and Grievances of the Commons in Parliament, since they thus constantly petition them for redress; and that the Commoners are only Petitioners, not Judges, as the Parliament roll of 1 H. 4. n. 79. resolves in direct terms.
Claus. 8 E. 2. m. 7. dors. The Chaplains of the House of Converts exhibited a Petition in Parliament against Adam de Osgodby the Keeper thereof, for putting them out of their lodgings, and placing his Clerks therein, they being founded by King H. 3. to pray and sing Masses for his and his ancestors Souls, and not to lodge the Clerks of the Chancery.
Upon consideration of the Petition by the Lord's and Council in Parliament, it was referred to the Chancellor to examine and determine; tanquam principali Custodi omnium Hospitalium et Domorum de eleemosyna Domini Regis fundatorum, ut ipfe inde faceret quod de jure esset faciendum. He sends a Commission to the House to inquire the truth of the complaint, and finds the Complaint unjust, and that the Keeper of the House was falsely charged, and that especially by William de Okelines, being one of the Chaplins, Whereupon consideratum est per Cancellarium, quod Wilhelmus idem nihil haberet de contentis in petitione sua praedicta sed quod committeretur ad custodiam suam pro falls • querela sua castigandus, juxta discretionem dicti custodis.
Pasch. 8 E. 2. Norfolk : The Archdeacon of Norfolk was accused for citing the Countess of Warren, being the Kings Niece, and divorced from her husband, to the damage of the King 2000 l. and it was adjudged by the Lord's in Parliament against the Archdeacon, quod nec citatio, nec summonitio fieri debet versus eot qui sunt de sanguine Regis, quia illis Major reverentia debita est ; and therefore he was fined.
About the year 1316. when the Northumberland Soldiers▪ (like some in this age) raised against the Scots, de tyron • bus facti sunt Tyranni, de defensoribus destructores, de propugnatoribus proditores, &c. one John Tanner said openly, that he was heir of England. Therefore at Northampton before the King and Lord's, he was proved false, and hanged and drawn. See more of him in Fabians Chronicle▪ part. 7. Anno 1314. p. 169. who relates, that he reported he was son to King Edward the 1. but was stolen out of his cradle by a false nurse, and Edward who was another's son, laid in the cradle for him; and that he had a Fiend in form of a C • t whom he served 3. years, which assured him he should be King of England.
In the Parliament of 18. E. 1. the Prior of Trinity in London, and Bago de Clare were attached, brought into the Parliament, there fined a 1000 l. to Edmond Earl of Cornwall, and 2000 marks to the Abbot of Westminster, and committed to the Tower of London, by JUDGEMENT of the King, Earls, Barons, and Justices in full Parliament, for citing and attaching the said Earl of Cornwall in Westminster hall, to appear before the Archbishop sitting the Parliament, whereof he was a Peer, against his Privilege, and the privilege of Sanctuary granted to the Abbot of Westminst. and remained prisoners there till they put in Sureties, and paid the 1000 l. fine to the Earl, notwithstanding their plea of ignorance of these their Privileges.
In the Parliament of 4 E. 3. n. 2, 3, 4, 5, 6. Sir Simon Bereford knight, John Mautravers, Boso de Bayons, John Deverall, Thomas de Gournay, and William of Ocle, confederates with Roger Mortimer Earl of March, in all his Treasons and misdoings, for which he was then impeached and condemned, and guilty of the murders of King Edward the 2. after his deposition, in Berkley Castle, and of the Earl of Kent his Brother; were attainted and condemned of High Treason by the Lord's, Barons & Peers in Parliament, as Judges of Parliament, though they were Commoners, and not their Peers, whom they were not at all obliged to judge as Peers: adjudging them by the Kings assent, as Traitors and Enemies of the King and his Realm, to be drawn and hanged : Whereupon Sir Simon being in Custody, was executed by the Marshal; and Proclamation made by the Kings writs by the Lord's order, to apprehend the others, with promise of great rewards to those who should apprehend them, that they might be executed; and if they could not take them alive to bring in their heads, for which thty should receive the reward of 500 l. from the King.
It is true indeed, that after these Judgments given the Lord's the same Parliament entered this special Protestation in the Parliament Roll n. 6. against being forced to give Judgment in such cases against those who were not their Peers; which Sir Edward Cook stiles an Act of Parliament, though it be no such thing, but a voluntary Protestation of the Lord's, with the Kings assent.
From this Protestation of the Lord's (which Lilburn principally insists on) he and some others conclude ; that the Peers in Parliament have no right at all to imprison, fine, judge, or pass sentence of death against any Commoner for any offense, no, (not for breach of their own Privileges) but only the Commons,
To which Objection I answer: First, that this is no Act of Parliam. as Sir E. Cook mistakes, but a bare Protestation of the Lord's alone, assented to by the King, without the Commons assent, which no ways impeacheth the Lord's right of judicature. Secondly, that neither the House of Commons, nor the Commoners then attainted of Treason, and adjudged to death by the Lord's, ever demurred or excepted against their Jurisdiction, as Lilburn and Overton do, but acknowledged and submitted to it. Thirdly, That in this very Protestation the Lord's profess and justify their right of BEING JUDGES in Parliament, without admitting or acknowledging any Joynt or sole right of Judicature with them in the Commons. Fourthly, That this Protestation was merely voluntary, not in derogation, but preservation of their own Honor, Right, Peerage, and the Parliaments privileges too; The substance of it is no more than this; That the Lord's should not be constrained against their wills by the Kings command, and in his presence, to give judgment of death in ordinary cases of Treason or Felony in the high Court of Parliament, or elsewhere out of it, against such who were no Peers, who in such cases by the Law might, and ought to be tried in the Kings Courts at Westminster, or before the Justices of Oyer and Terminer by a Jury of their equals ; but only in cases which could not well be tried elsewhere▪ and were proper for their Judgment in Parliament; they fearing that by this president in Parliament they might be sworn and impannelled on Juries in cases of Treason committed by Commoners, against the Great Charter, c. 29. and the Privilege of their Peerage, which exempted them being sworn or put into Juries, as Fitz. Nat. brev. f. 165.48 E. 3. f. 30. Exemption 6.48. Ass. 6.27 H. 8. f. 22. b. This is the whole sum and sense of their protestation. To argue therefore from hence, That they cannot pass sentence, or judgment against any Commoners in any case proper for their Judicature in Parliament, because they protested only against being COMPELLED to give Judgment against such as were no Peers, in cases triable elsewhere, and not proper for their tribunal (as the Objectors hence conclude) is quite to mistake their meaning, end, & to speak rather non-sense, than reason or Law. Fifthly, This Protestation was made only against the Lord's giving sentence in Felony and Treason, and that in the Kings own presence in Parliam. (who usually pronounced the judgment himself, or by some other, with the Lord's assent, & did not charge the Lord's to pronounce it, as here) not against sentencing, fining, imprisoning any Commoner for railing and libelling against their Persons, Jurisdiction, and proceedings; or refusing to answer, and contemning their Authority to their faces at the bar; or appealing from their Judicature in case of breach of Privilege, of which themselves alone and no others are or can be Judges; the cases of Lilburn 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 injudiciousness and folly, rather than a justification of their Libellous Invectives against the Lord's injustice. Sixthly, The Lord's gave judgment against all these persons by the Kings command in their absence, without any Indictment, hearing, Trial, witnesses heard or examined against them face to face, or due process or Law, against the Great Charter and Law of the Land. And this was the main reason of this their Protestation, as the close of it shows, to prevent such dangerous presidents for the future. Upon which ground the Judgments they then gave against Roger Mortymer & John Mautravers were reversed in the Parliament of 21 E. 3. n. 65.28 E. 3. n. 8. to 16. Lastly, This Protestation did not foreclose the Lord's in this or future Parliaments to give Judgment against Commoners in other cases of Felony and Treason, even without the Commons, which I shall prove by some other instances.
In the Parliament of 4 Ed. 3. n. 16. Sir Thomas Berkeley Knight was arraigned and tried by a Jury for Treason, as being guilty of the death of King Edward the 2. committed to his custody, who pleaded not guilty, and was tried in full Parliament before the King by a Jury, and by them acquitted: Which case being rare and memorable, I shall here insert the whole Record.
It is observable that though Edward the 2. was murdered after he was deposed by this Parliament, yet he is still •• lled a King in this Indictment, and record, and his murder adjudged Treason in those who did it.
After his acquittal he put in Mainpernors to appear in the next Parliament, Where appearing, he and his Mainpernors were discharged, but yet himself ordered to appear again the ensuing Parliament, as appears by the Parliament Roll of 5 E. 3. n. 16.
William Thorp Chief Justice of the Kings Bench, and one of the Justices of Assize in the County of Lincoln, in the 23 year of Ed. the 3. against his Oath took 10 l. of Richard Saltley, 20 l. of Hildebrand, of Beresward 40 l. of Gilbert Holliland 40 l. and 10 l. of Ro. Daldorby to stay an Exigent upon an Indictment of diverse felonies, that should have issued against them; Whereupon he was indicted before the Earls of Arundel, Warwick, and Huntingdon, the Lord Gray and Lord Burghers, Anno 24 E. 3. to whom the King by Commission referred the examination of the business, before whom he could not deny, but confessed the Bribery. Ideo consideratum est per dictos Justiciarios assignatos, ad judicandum secundum voluntatem Regis, et secundum regale posse suum; quod quia praedictus Wilhelmus Thorp • , qui sacramentum Domini Regis quod erga populum suum habuit custodiendum fregit malitiose, false et rebelliter, in quantum in ipso fuit, & ex causis supradictis ipsum Willielmum express cognitis, ideo SUSPENDATUR, et quod omnia terra et tenementa, bona et catalla sua remaneant forisfacta. The King by a writ under the privy Seal, stayed his execution, and sent him Prisoner to the Tower. In the Parliament of 25 Ed. 3. nu. 10. command was given, that the record of this Judgment against Judge Thorp should be brought into the Parliament, and there read openly BEFORE THE LORD'S, to have every of their advice concerning it, whether this Judgment were legal or not? et nullo contradicente, all the Lord's affirmed the judgment to be legal and good, considering that he against his Oath received Bribes : And therefore it was agreed by all the Lord's, that if the like case should hereafter happen, the King might take to him such Nobles as he should think meet, and therein do according to his pleasure. Provided this judgment should not be drawn into example against any other Officers who should break their Oaths; but only against those, qui praedictum Sacramentum fecerunt (of Justices) et fregerunt, et habent leges Regales Angl. ad custod. Here the Lord's were sole Judges of the Judge, who was a Commoner, and gave judgment against him without the Commons, yea declare the Law in this new case, both in and out of Parliament.
In the Parliament of 21 E. 3. n. 68. The Commons by divers Bills complained to the Lord's of divers extortions, grievances, prejudices done to the King and Commons by John Wattenham, and Walter de Cheriton Merchants, who desired the King would command them to come before THE COUNCIL & LORD'S in Parliament, to answer what should be objected, and clear themselves.
In the Parliament of 50 E. 3. n. 17, 18, 19, 20. The Commons accused Richard Lions Merchant of London of divers deceits, extortions, and misdemeanors, whiles he was farmer of the Customs and last subsidy, for transporting wools, and staple Commodities, procuring new Impositions on staple ware, for buying debts from the Kings Creditors at under rates, and making the King to pay the whole, for taking of bribes, and defrauding the King. To some of which charges he answered, and to the rest submitted himself to the King touching Body, Lands and Goods. Whereupon THE LORD'S adjudged him to prison during the Kings will, that his lands tenements and goods should be seised to the Kings use, that Commissions should issue throughout all England to inquire of his Extortions, whiles farmer of the subsidies, and that he should be disfranchised. Upon this Judgment, in the Fine Roll of 50 E. 3. m. 19, 21, 22. there issued out writs for the arresting and selling the goods of Richard Lions to the Kings use, which were his on the 19 of March, certis de causis coram Nobis et Concilio nostro in praesenti Parliamento nostro propositis, &c. per Concilium in Parliamento.
The same Parliament, 50 E. 3. n. 31, 32. William Ellis of great Yarmouth was accused by the Commons of sundry extortions whiles he was Deputy Farmer of the kings subsidy to Richard Lions; To which he seemed sufficiently to answet; yet was BY THE LORD'S adjudged to prison, and to make a fine at the Kings pleasure. Ibidem, Num. 33. John Peach of London was impeached by the Commons for procuring a license under the Great Seal, that he only might sell sweet wines in London, by color whereof he took 4 s. 4 d. of every man for every Tun thereof sold, which he justified he lawfully might do: Notwithstanding JUDGEMENT was given against him by THE LORD'S, that he should be committed during the Kings pleasure, and make recompense to all parties grieved. Num 37. Adam de Bury was accused of divers deceits and wrongs done by him whiles Mayor of Calais, and Captain of Bellingham. Being sent for to come to the Parliament, he came not, nor could he be found. Thereupon the Lord's agreed, that all his goods and chattels should be arrested, and so they were. All these Commons were first impeached by the Commons, and thus judged and censured by THE LORD'S in this GOOD PARLIAMENT, as Historians and others style it: And in the Commons petitions therein, there are divers Petitions of Grievances from sundry Counties, Towns, persons, complaining of wrongs and grievances, presented to the King and Lord's for redress of oppressions, extortions, Monolies, &c.
In the Parliament of 1 R. 2. n. 41, 42, 43. Dame Alice P • etrees was brought before THE LORD'S by Sir Richard Scroop Knight, and there charged for pursuing matters at the Court, contrary to an Order made in the Parliament, of 50 E. 3. n. 35. and procuring King Edward to restore Richard Lions to his lands and goods, &c. she denied she pursued any such thing for singular gain, against that Ordinance; whereupon diverse Officers, Counsellers, and Secretaries of king Edward 3. were examined against her, who proved she made such pursutes, and that for private gain in their conceits. Whereupon the Lord's (alone, without the Commons) gave Judgment against her, that she should be banished according to the order aforesaid, and forfeit all her Lands, Goods, and Tenements to the King ,
The same Parliament; 1 R 2. n. 32, 33. The Lord's committed William Fitz-Hugh Goldfiner, and Citizen of London to the Tower, for refusing to aver a Petition exhibited by him in the name of the poor Commonalty of that mystery, complaining against John Chichester and John Bolcham of the same mystery, of divers oppressions done by them to the said Commonalty.
In this very Parliament of 1 R. 2. n. 38, 39, 40. The Commons prayed, that all those Captains who had rendered or lost Castles or Towns through default, might be put to answer it in this Parliament, and severely punished according to their deserts BY AWARD (or Judgment) OF THE LORD'S and BARONS, to eschew the evil examples they had given to other Governors of Towns and Castles. Whereupon Sir Alexander de Buxton Constable of the Tower, was commanded to bring BEFORE THE LORD'S 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 behalf. Being brought BEFORE THE LORD'S in full Parliament, they were severally articled against at the command of THE LORD'S, by Sir Richard le Scrop Knight, Steward of the Kings House; and their several Articles, and answers to them in writing, read before THE LORD'S; Which done, the Constable was commanded to bring them again before THE LORD'S on Saturday next ensuing, being the 20 of November ; on which day it was shown unto them severally by the said Steward, by THE LORD'S COMMAND▪ That THE LORD'S 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 LORD'S AFORESAID, that the said William had delivered up the Castle of On • herwycke to the Kings enemies, without any duress or want of victuals, contrary to his allegiance, and undertaking safely to keep it; and therefore the Lord's above-named sitting in full Parliament adjudge you to death, & that you shall be drawn & hanged. But because our Lord the King is not informed of the manner of the Judgment, the execution of it shall be respited till the king be thereof informed.
After which Judgment given, it was shown to the said John Lord of Gomynes by the said Steward, how the said LORD'S had assembled and considered of his answer, and THAT IT SEEMED TO THE LORD'S sitting in full Parliament, that without duresse, or default of victuals or other necessaries, for the defense of the Town & Castle of Arde, and without the Kings Command, he had evilly delivered and surrendered them to the Kings Enemies by his own default, against all appearance of right or reason, contrary to his undertaking safely to keep the same ; Wherefore THE LORD'S aforesaid here in full Parlia-ADJUDGE YOU TO DEATH. And because you are a Gentleman and a Baronet, and have served the Kings Grandfather in his wars, and are no Liege 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 Judgment, the execution thereof shall be put in respite until our Lord the King be informed thereof.
Loe here two express Judgments given in Parliament by the LORD'S alone, without King or Commons in case of Treason, even against Commoners themselves. And an express acknowledgement by the Commons of the Lord's right to award Judgment in these cases, without the King or them ; than which a fuller and clearer proof cannot be desired.
In the Parliament of 2 R. 2. n. 34, 35. Sir Robert Howard knight was committed prisoner to the Tower upon the complaint of the Lady Nevill by the Lord's in Parliament, for a forcible imprisonment of her daughter, to which he was accessory, that she might not prosecute a divorce in Court Christian.
In the 50 year of King Edward the 3. (in the Parliament called the good Parliament) Sir John Anneslee Knight, accused Thomas Katrington Esquire of Treason, for selling the Castle of St. Savior in the Isle of Constantine to the French for an inestimable sum of money, cum nec defensio sibi, nec victualia defuissent : whereupon he was taken and imprisoned, but in King Edwards sickness, enlarged by the Lord Latymers means (as was reported.) In the Parliament held at London (Anno 1380. the 3. of R n . 2.) he was again accused by Sir John Anneslee, and there resolved, that being a Treason done beyond Sea, not in England, it ought to be tried by duel before the Constable or Marshal of the Realm. Whereupon a day of battle was appointed in the Court at Westminster the 7. of June, and lists set up. On which day in the morning they fought the battle in the presence of the KING, Nobles and Commons of the Realm (which Walsingham at large describes) till both of them were tired, and lay tumbling on the ground; where the Esquire got upon the Knight, as if he had conquered him: Others said, the Knight would rise again and vanquish the Esquire. Interea Rex pacem clamari pr • cepit, et militem erig • . The Knight refused to be lifted up as the Esquire was, desiring he might be laid upon him again, for he was well, and would gain the victory, if he were laid upon him again. When he could not obtain his request, being lifted up, he went cheerfully to the King without help, when as the Esquire could neither stand nor go, but as two held him up; and thereupon was set in a chair to rest himself. The Knight when he came before the King▪ rogavis Eum et Proceres, ut sibi illam concederunt gratiam, ut it • rum in loco quo prius, posset reponi, et armiger super eum. Rex vero et Proceres, cum vidissent mili • em tam animose, • am vivide bellum repetere, et insuper magnam summam auri offerre publice ut id posset effici, decreverunt eum iterum reponendum, & armigerum super eum, modo universaliter servato quo • acuerant ante prostrati. But the Esquire in the mean time in a swoun, fell out of the chair as dead, between the hands of those who stood by him. Whereupon many running to him, chafed him with wine and water, but could not recover him till they pulled off his arms. Quod factum et Militem victorem probavit, & Arm gerum esse victum. After some space the Esquire reviving, opened his eyes, and began to lift up his head, and to look terribly on everyone that stood round about him: which the knight being informed of, went presently to him in his arms which he never put off, and speaking to him, et Proditorem et falsum appellans, quaerit si iterum audeat Duellum repetere? Ille vero nec sensum, nec spiritum habente respondendi; • lamatum est pugnam finitam, et ut quisque ad propria remearet. The Squire was carried to his bed senseless, and died the next morning. Here we have a Duel ordered by Parliament, and the King and Lord's Judges in it, not the Commons, for a Treason done beyond the Seas not triable here by Law.
In the Parliament of 4 R. 2. n. 17. to 26. Sir Ralph Ferrers being arrested for suspicion of Treason on the borders of Scotland, was brought into the Parliament before the Lord's, to answer the same: where divers Letters under his hand and Seal (as was pretended) were produced and read against him, sent to the Lord Admiral of France, and other French Officers, informing them, that he in the behalf of the French had made a League and alliance with the Scots, and desiring them to make payment of the monies promised him, and of his own fee, and inviting the French to invade England, &c. with discoveries of the Kings designs against the French, and answers to them. Sir Ralph desired Counsel in this case, which was denied him: These Letters were found by a beggar besides London ; divers of his familiars were called into the Parliament house before the Lord's, and likewise the beggar, and the whole matter strictly examined: The Letters sent by Sir Ralph to the parties beyond Seas, and certain Letters sent by them in answer to his, were all sealed together, and all of one hand, and the Seal larger than the Seal of the said Sir Ralph, whereupon they seemed to be forged by some of his Enemies for his overthrow; himself being once or twice urged to answer, Whether the Letters were his, or no? answered, that he did not remember they were his own Letters, and that he was ready to approve, as the Lord's should think fit; having formerly offered combat with any that would justify it, from which he was put. In conclusion, the Lord's thought him to be innocent : whereupon he was delivered to 4. Earls, and 2. Lord's, who became pledges body for body, to answer when he should be called between that and the next Parliament, and so he was enlarged. The Letters and his Seal were delivered to Sir John Cavendish Chief Justice of England, and the beggar being thought privy to this falsehood, was committed to prison by THE LORD'S.
In the Parliament of 5 R. 2. n. 44, 45. Richard Clindow Esquire exhibited a Bill to the King, wherein he accused Sir William Cogan knight, for extorting 300 l. by menaces from the Prior of St. John's ; Sir William appearing upon Summons, prayed Counsel, which was denied, for that it concerned Treason; whereupon he pleaded Not Guilty. After which the same Parliament, n. 46. to 61. The Mayor, Baylifs and Commonalty of Cambridge were accused before the King and Lord's, that in the late insurrection, they confederating with other Malefactors, did break open the Treasury of the University of Cambridge, burn sundry Charters of the University, and compel the Chancellor and Scholars under their common Seal to release to the said Mayor and Burgesses all manner of Liberties, real and personal actions, and also to become bound to them in great sums of money. Whereupon special writs were directed to the Mayor, Baylifs and Commonalty to appear in Parliament to answer the premises. The Mayor and Baylifs appear in person, and plead; that they 〈◊〉 not privy to any such act, but if anything was done it was by compulsion by others, which the Kings learned Counsel disproved; whereupon they pleaded Not Guilty: The Commonalty appeared by Attorney, and delivered in the Release and Bond of the University complained of under their Seal, which were ordered to be cancelled. After which the Chancellor and Scholars of the University exhibited Articles against the Mayor and Baylifs, showing their whole carriage and discourse in this tumult. Upon reading whereof, it was demanded of them in the Kings behalf, What they could say why their Liberties lately confirmed should not be seised into the Kings hands as forfeited ? They thereupon required a Copy of the Articles, Council, and respite to answer. To the Copy of the Bill, it was answered by the Lord's, that seeing they had heard it read, it should suffice, for by Law they ought to have no Copy. For Council, it was said; That to such articles, if any were wherein Council was to be had, they should have it; otherwise not. Wherefore they were then appointed to answer to no crime or offense, but only to their Liberties. To which they answered by their Council; That this Court ought not to have any Conusance or Jurisdiction of them for certain causes then alleged. But at last they were ordered to say what they could, otherwise they would give Judgment against them, as those who had nothing to say . Whereupon they pleaded, they did nothing but by Duress and constraint of the Rebels. At last, after many dilatory shifts, touching their Liberties, they wholly submitted themselves to the Kings mercy and grace, saving their answer to other matters. The KING therefore by the assent of the Prelates and Lord's in Parliament ( • o is the Rol • ) seised their Liberties into his hands as forfeited ; and by assent of the Lord's and Prelates in Parliament, granted to the Chancellor and Scholars the Assise and correction of bread, weights, measures, and forestallers, and fines thereof within the Town and Sub • rbs of Cambridge which the Townsmen had before. The King, Lord's, and Prelates being Judges, and giving the Judgment in this case of Commoners, as the record a • ge attests.
Walsingham relates, that in a Parliament holden at London this year about the feast of St. John, upon the Petition of the knights of Shires, John Straw, Captain of those in the insurrection at Bury and Myldenhale, tractationi et suspentioni ADJUDICATUR, (to wit by the King and Lord's) licet multi putassent eum fuisse pecunia redimendum.
In the 7. year of R. 2. Rege vocante congregati sunt multi de Nobilibus Regni apud Rading; to restrain the seditious motions of John de Northampton, late Mayor of London, qui ingenia facinora nisus est, de quibus et convictus est ibidem, his familiar Clerk accusing him, both of divers practices and designs projected by him, as well to the prejudice of the King, as of the whole City of London, and objecting them against him. When Judgment was to be given against him in the Kings presence, he pleaded, that such a Judgment ought not to be given against him in the absence of the Duke his Lord ; whereby he raised a sinister suspicion as well in the people, AS NOBLES, against the Duke (of Lancaster.) The Justice (who was to pronounce the Judgment) told him, He ought to refute his charge by Duel, or by the Laws of the Realm to submit himself to drawing, hanging, and quartering. At which when he stood mute and said nothing, DECRETUM EST, ut perpetuo carceri tradiretur, et e • us bona regis usibus confis • arentur, & ut Londonias non appropinquaret per centum miliaria in vita sua: whereupon he was sent prisoner to Tyntagel Castle in Cornwall, and his goods seised on by the Kings Officers.
In the Parliament of 7 R. 2. holden at Westminster the Monday next before the feast of All Saints ▪ num. 17. Briars Cressingham, and John Spic • worth Esquires, were accused before the LORD'S for surrendering the Castle of Drinkham in Flanders to the kings enemies for money, without consent of the kings Lieutenant. Spickworth proved, that the same was not in his custody; and thereupon he was discharged. Cressingham pleaded, that he yielded the same upon necessity, without money, and submitted himself to the Lord's order : who thought this no good cause; and therefore committed him to prison. The same Parliament, n. 24, 25. Sir William de Elinsham, Sir Thomas Trivet, Sir Henry de Ferriers, and Sir William Farnden knights, and Robert Fitz-Ralph Esquire, were accused before the Lord's in Parliament for selling the Castle of Burburgh, with all the arms, ammunition, and provisions therein to the French, the kings enemies▪ for sundry sums of gold received by them of the French, without authority from the king or his Lieutenant: who pleaded, they surrendered it for salvation of themselves and their people, &c. After all their excuses made; they were upon consideration, adjudged insufficient by the Lord's ; and the Chancellor, by their order, pronounced this Judgment against them, That they should repay all the monies they received from the Enemy to the King; be committed to prison; ransomed at the Kings will ; and moreover, that Sir Will. de Farnden (being the greatest Offender) should be at the Kings mercy both for body and goods, to do with them as he pleaseth.
In this Parliament there was a Duel fought between John Walsh an English Esquire, and one of Navarre: who accoused him of Treason against the King and Realm effectually ▪ but yet falsely out of envy; Walsh having lain with his wife whiles he was under Captain of Cherburgh ; as he afterwards confessed. This Due • was fought within the lists in the presence of the King and Nobles of the Realm, where this Navarrois being vanquished by Walsh, REGALI JUDICIO tractus et suspensus est, quanquam Regina et plures alii pro eo preces sedulas porrexissent.
In the 2. of Parliament of 7 R. 2. n. 13.10 19. John Cavendish a Fishmonger of London, praying Surety of the peace against Sir Michael de la Pool Knight, Lord, Chancellor of England ; first before the Commons, and afterward before the Lord's, which was granted: Then he accused him BEFORE THE LORD'S for bribery and injustice; and that he entered into a bond of 10 l. to John Ottard, a Clerk to the said Chancellor, which he was to give for his good success in the business: in part of payment whereof, he brought Herring and Sturgeon to Ottard, and yet was delayed and could have no justice at the Chancellors hands: Upon hearing the cause, and examining witnesses upon Oath before THE LORD'S, the Chancellor was cleared: The Chancellor, thereupon required reparation for so great a slander : the Lord's being then troubled with other weighty matters, let the Fishmonger 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 Chancellor, and adjudged him to prison till he had paid the same to the Chancellor, and made fine and ransom to the King also: which the Lord's confirmed.
In the Parliament of 8 R. 2. n. 12. Walter Sybell of London was arrested and brought into the Parliament before the Lord's, 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 trial. Walter thereupon was committed to Prison by the Lord's, and the next day he submitted himself, and desired the Lord's to be a mean for him, saying; he could not accuse him : whereupon THE LORD'S CONVICTED and FINED HIM FIVE HUNDRED MARKS TO THE SAID EARL; for the which, and for his fine and ransom to the King he was committed to prison BY THE LORD'S. A direct case in point.
By these two last Presidents of the Lord's • ining and imprisoning Cavendish and Syber ▪ two Commoners in Parliament, for their standers and false accusacions only of two particular Peers and Members of their house, it is most apparent, the Lord's now may most justly, not only imprison, but likewise fine both Lilburn and Overion for their most scandalous Libels▪ against all the Members just Privileges, Judicatory, and Authority of the whole House of Peers, which they have contemned, vilisied, oppugned, and libelled against in the highest degree, and most scurrillously abused, reviled in sundry seditious Pamphlets, to incite both the Army and whole Commonalty against them.
In the Parliament of 11 R. 2. the Duke of Gloucester and other Lord's came to London with great forces to secure themselves, and remove the kings ill Counselors and bring them to judgment; whereupon the King for fear securing himself in the Tower of London, and refusing to come to them at Westminster, contrary to his faithful promise the day before, they sent him this threatening Message; nisi venire maturaret juxta condictum, quod eligerent alium sibi Regem qui vellet et deberet obtemperare consiliis Dominorum. Wherewith being terrified▪ he came unto them the next day: Cui dixerunt PROCERES, pro honor suo, & regni commodo, oporter •• , ut Proditores, susurrones, adulatores, et male fici detractores & juratores, à suo Palatio et Comitive etiam eliminarentur ; Whereupon they banished sundry Lord's, Bishops, Clergy-men, Knights and Ladies from the Court, and imprisoned many other Knights, Esquires, and Lawyers, to answer their offenses in Parliament. The first man proceeded against in Parliament, was the Chief Justice Tresylian, whom the Lord's presently adjudged to be drawn and hanged. The like Iuegement the Lord's gave against Sir Nicholas Brambre Knight, Sir John Salisbury, Sir James Burw • yes, John Beauchamp, John Blake's ▪ who were all drawn and hanged accordingly as Tray • ers one after another: and Simon Burly beheaded after them, by like judgment, notwithstanding the Kings, and Earl of Derbies intercessions for him to the Lord's. After their Execution, Robert Belknap • , John Hol • , Roger Fulthorp, and William Burgh, Justices, were banished by the Lord's sentence, and their lands and chattels confiscated, out of which they allowed them only a small annual pension to sustain their lives. After which these Judgments against them were confirmed by Acts of Attainder, as you may read in the Statutes at large of 11 R. 2. where their Crimes and Treasons are specified, in Cokes 3 Institutes, c. 2. p. 22, 23. and in Knyghton, Holinshed, Fabian, Speed, Trussel, with other Historians.
In the Parliament of 13 R. 2. n. 12. Upon complaint of the Bishop, Dean and Chapter of Lincoln against the Mayor and Bailiffs thereof, for injustice in keeping them from their rights and rents, by reason of the franchises granted them, which they abused; Writs were sent to the Mayor and Baylifs, to appear at a certain day before the Lord's, and to have full authority from the whole Comonalty to abide their determination therein: At which day the Mayor and Bailiffs appearing in proper person; for that they brought not full power with them from the said Commonalty, they were an • go • by the Lord's to be in contempt, and so were the Mayor and Bailiffs of Cambridge, for the self same cause this very Parliment, n. 14.
In the Parliament of 15 R. 2. n. 16. The Prior of Holland in Lancashire, complained of a great riot done by Henry Treble, John Greenbo • , and sundry, & others for entering into the Parsonage of Whitw • rke in Leicestershire ; thereupon John de Ellingham, Serjeant at Arms, by virtue of a Commission to him directed, brought the said Treble and Greenbow, the principle malefactors into the Parliament before the Lord's ; who upon 〈◊〉 confessed the whole matter, and were therefore committed to the Flea • , there to remain at the Kings pleasure: after which they made a fine in the Chancery, agreed with the Prior, and found sureties for the Good behavior; whereupon they were dismissed. The same Parliament, n. 19. Sir Will. Bryan, was by the King with the assent of the Lord's, committed prisoner to the lower during the Kings will and pleasure , for purchasing a Bull from Rome to the Archbishops of Canterbury and York, to excommunicate all such who had broken up his house, and taken away divers Letters, Privileges, and Charters, which Bull was adjudged prejudicial to the King; his Counc • l, and in derogation of the Law. Num. 20. Thomas Harding was committed to the Fleet by the King and Lord's assent, there to continue during the Kings pleasure, for falsely accusing Sir John and Sir Ralph Sutton, as well by mouth as writing, of a conspiracy, whereof upon hearing they were acquitted. And n. 21. John Shadwell of Baghsteed in Sussex, was likewise committed to the Fleet by THE LORD'S, there to remain during the Kings pleasure, for misinforming of the Parliament, that the Archbishop of Canterbury had excommunicated him and his neighbors wrongfully in his spiritual Cour • , for a temporal cause belonging to the Crown, and Common Law, which was adjudged by the Lord's upon examination to be untrue.
To pass by the accusation of Sir Philip Courtney, of divers heinous matters, oppressions, dissensions before the King and Lord's in the Parliament of 16 R. 2. n. 6.13, 14. of which more anon. In the Parliament of 17 R. 2. n. 20, 21. John Duke of Lancastre Steward, and Thomas Duke of Gloucester Constable of England complained to the King, that Sir Thomas Talbot Knight with other his adherents conspired the deaths of the said Dukes in divers parts of Cheshire, as the same was confessed and well known, and prayed, That the Parliament might judge of the fault. Whereupon the King and the Lord's in Parliament (without the Commons) adjudged the said fact to be open, and High Treason. And thereupon they awarded two Writs, to the Sherifs of Yorks and of Derby, to take the body of the said Sir Thomas, retornable in the Kings Bench, in the month of Easter next ensuing: And open Proclamation was made in Westminster Hall▪ That upon the Sherifs retorn, and at the next coming in of the said Sir Thomas, he should be convicted of Treason, and incur the loss and pain of the same; and that all such who should receive him after the Proclamation, should receive the like loss and pain.
In the Parliament of 20 R. 2. n. 15, 16, 23. Sir Thomas Haxey Clark, was by the King & Lord's in Parl. adjudged to die as a Traitor, and to forfeit all his Lands, Goods, Chattels, Offices and Livings, for exhibiting to the House of Commons a scandalous Bill against the King and his Court, for moderating the outrageous expenses of his Court by Bishops and Ladies, &c. Upon the Bishops intercession the King spared his life, and delivered him into the custody of the Archbishop, to remain as his Prisoner.
In the Parliament of 21 R. 2. n. 19, 20. Pl. & Parl. n. 2. to 15. The Lord's Appellants appealed Sir Tho Mortimer Knight, of High Treason, for raising war against the King, accroaching royal power, and purposing to surrender his homage and allegiance, and depose the King: Who flying into the parts of Ireland; thereupon the Lord's in Parliament assigned him a certain day to come and render himself to the Law, or else to be adjudged and proceeded against as a Traitor: and Proclamation thereof was made accordingly in England and Ireland, to render himself within 3 months: And that after that time all his Abettors and Aiders should be reputed for, and forfeit as Traitors. He not coming at the day, The Duke of Lancaster Steward of England, by assent of the Lord's in Parliament, adjudged him a Traitor; and that he should forfeit all his Lands in fee and see tail, together with all his Goods and Chattels. The like Judgment in like manner was in the same Parliament given against Sir John Cobham Knight, for the like Treason, Placit. Coronaen. 16.
On the 22 day of March, 22 R. 2. n. 27. The King, by assent of the Lord's, adjudged Sir Robert Plesington, Knight, then dead, a Traitor, for levying war against him with the Duke of Gloucester at Harrengary ; for which he should lose all his Lands in fee, or fee tail, and all his goods. And n. 28. Henry Bowht Clerk, for being of Counsel with the Duke of Hereford in his device, was adjudged by the King and Lord's to die, and forfeit as a Traitor; after which his life was pardoned and he banished.
In the Parliament of 1 H. 4. n. 79. As the Commons acknowledged, that the Judgments in Parliament had always of right belonged to the King and Lord's, and not unto the Commons: So therein the King and Lord's alone, without the Commons, gave Judgment in sundry cases, as Judges in Parliament.
1. In Sir Thomas Haxey his case, who in his own name presented a Petition in this Parliament, a nostre tresedoute seigniour le ROY, & a LES SEIGNIORS DU PARLIAMENT, showing, that in the last Parliament of 21 R. 2. that he delivered a Bill to the Commons of the said Parliament for the honor and profit of the said King, and of all the Realm; for which Bill, at the will of the King, he was (by the King and Lord's) adjudged a Traitor, and to forfeit all that he had; praying that the record of the said Judgment, with the dependants thereupon might be vacated and nulled by them in this present Parliament as erroneous; and that he might be restored to all his degrees, farms, estate, goods, chattels, ferms, pensions, lands, tenements, rents, offices, advow sons and possessions whatsoever, and their appurt. and enjoy them to him and his heirs; notwithstanding the said Judgment, or any grant made of them by the King. The Commons House exhibited a Petition likewise on his behalf, to the like effect; adding, that this judgment given against him, for delivering this Bill to the Commons in Parliament, was eneontre droit, et la course quel avoit estre use devant in Parlement en anientesment des Customs, de • le • Communes. Upon which Petitions; Nostre Seignior le ROY, de Induis & assent des touz les Seigniors esperituelz et temporelz ad ordinez et adjudges, que le dit juggement renus verse le dit Thomas in Parlement soit de tout casses, revorses, repellez et adnullez, et tenus pur nul force n'effect, et que le dit Thomas soit restitut a ses nom et fame, &c. nient obstant mesme le juggement.
2ly. In the case of Judge Rickhill 1 H· 4. n. 92. On the 18 of November, the Commons prayed the King that Sir William Rickhill late Just. of the Common Bench, arrested for a Confession he had taken of the Duke of Gloucester at Calais, might be brought to answer for it devant les Seigniors du Parlement: whereupon he was brought into Parliament before the Kings presence, and all the Lord's spiritual and temporal, and Commons assembled in Parliament, where Sir Walter Clapton Chief Justice of the Kings Bench, by the kings command, examined the said Sir William, how and by what warrant he went to Calais, to the said Duke of Gloucester, and upon what message? Who answered, that king Richard sent him a special Writ into Kent (there recited verbatim ) commanding him by the faith and allegiance whereby he was obliged to him, and under pain of forfeiting all he had, to go unto Caleys. And that at Dover he received a Commission from the said king by the hand of the Earl Marshal, to confer with the Duke of Gloucester, and to hear whatsoever he would say or declare unto him, and to certify the king thereof in proper person, wherever he should be, fully and distinctly under his Seal. Whereupon he went thither, and took the said Dukes Examination in writing, according to the purport of the said Commission, a Copy whereof the Duke himself received, &c: Upon the hearing of his answer and defense, every temporal Lord being in full Parliament examined touching the answer of the said Sir William, and the matters and evidences which they had examined, said severally; that the said William had done his message well and legally, and that in the person of the said William there was no fault nor evil touching the said message, nor anything that he did to the person of the said Duke. Whereupon Walter Clapton Chief Justice of the Kings Bench, by command of the king adjudged and declared, that the said William should be fully excused and acquitted forever in time to come touching this matter.
3ly. The last day of this Parliament, it was agreed by the King and Lord's, that all the remembrances called Raggemans or Blant • es Charters, lately sealed in the City of London, and divers Counties, Cities and Burroughs of England, should be sent to the City of London ; and from every County, City and Burrough from whence they came, and Writs sent to every of them rehearsing, That the king held all the resiants and Inhabitants in them for his good and loyal Subjects; and that no confession by them made, comprised in the said remembrances, are nor shall be in derogation of the estate of any such person: and that the same remembrances shall be burnt and destroyed in the most open place of the said Counties, Cities and Burroughs, and if anything remain of record in any Court, or place, the king wills that it shall be cancelled, and totally adnulled, revoked and repealed, and held for no record; and of no force nor value for time to come.
4ly. The 19th. of November in the said Parliament, Placita Coronae coram Domino Rege in Parliamento suo, &c. Anno regni Regis Henrici quarti post Conquestum, primo n. 17. The Commons prayed she King, that rhe pursuit, arrest, and judgments made against Sir William le Scrop • knight, Henry Green knight, and John Bassy knight, might be affirmed and held good. Whereupon Sir Richard Scroop humbly prayed the King, that nothing which should be done in this Parliament might turn to his or his Children's dis-inherison. Of which Sir Richard it was demanded, whether the said pursuit, arrest and judgments were good or not? who answered, that he feared not to say, and must confess, that when they were made th • y were good and profitable for the King and Realm, and that his Son was one of them, for which he was very sorrowful. Whereupon the king rehearsed, that he claimed the Realm and Crown of England, with all their members and appurietenances, as heir of the blood by the right line of king Henry the 3d. and although through the right which God had sent him, by the aid of his Parents and friends, he recovered the said Realm, which was at the point to be undone by default of government, and defesance of the Laws and customs of the Realm, yet it was not his will that any should think, that by way of Conquest, he would disinherit any man of his heritage, franchise, or other right which he ought to have, nor out any man of that which he had, or should have by the good Laws or Customs of the Realm, except these who had been against the good purpose and common profit of the Realm; of which only the King held the said Sir William, Henry, and John for such, and guilty of all the evil which had come upon the Realm: and therefore he would have and hold all the Lands and Tenements they had within the Realm of England, or elsewhere, by conquest: Whereupon, fuist demand de touts les Seigniors temporellez lour advys de les pursuit, arreste, & juggem 〈◊〉 sui • di • z. Les queux Seigniors touz de • ne accord disorent, que mesmes les pursuit, arreste, juggement & quin • que fuist fait come defuist dit uist bons, et les affirmente Piur bons et profitables.
5ly. In the case of John Hall, 1 H. 4. Placita Coronae, n. 11 to 17. who being in custody of the Marshal of Englana, was brought by him before the Lord's in Parliament, and there charged before them by Walter Clapton, Lord Chief Justice, by the King command, with having a hand in the murder of the Duke of Gloucester, who was smothered to death with a Featherbed at Calves by king Richard the seconds command; the whole transaction whereof he confessed at large, and put in writing before James Billingford. Clerk of the Crown, which was read before the Lord's; upon reading thereof, the King and all the temporal Lord's in Parliament resolved, that the said John Hall, by his own confession, deserved to have as hard a death as they could adjudge him to, because the Duke of Gloucester was so high a Person; and thereupon toutes les Seigneiors temporelz per assent du Roy adjuggerent, all the temporal Lord's by assent of the King ADJUDGED, that the said Jo. Hall should be drawn from Tower hill unto the Gallows at Tiburn, and there bowelled, and his bowels laid before him; and after he should be hanged, beheaded, and quartered, and his head sent to Calais where the murder was committed, and his quarters sent to other places where the king should please; and thereupon command was given to the Marshal of England to make execution accordingly, and it was so done the same day.
Lo here the Lord's in Parliament gave judgment against a Commoner in case of a murder done at Calais, (and so not • riable in the Kings Bench, but in Parliament) and pass a Judgment of High Treason on him, for murthering of a great Peer only.
In the Parliament of 2 H. 4. rot. Parl. n. 23, 24. The Commons shown to the King, that William Bagot had been impeached of many horrible deeds and misprisions, the which if they had been true, the Commons supposed, the the King and ths Lord's would have had good notice thereof , for that they had made many examinations thereof whiles the said William was in distress. And therefore the said Commons prayed the King, that the said Sir William being in Flanders and no offense found in his person, upon the slanders in his impeachment aforesaid; that he would be pleased to restore him to his lands: To which prayer was answered in the Kings behalf, that although the said Sir William upon the said impeachment made the last Parliament, was put to his answer before the King and the Lord's, and there pleaded a general Charter of pardon, against which Charter, it seemed to all the Lord's then present, that the said Sir William ought not to be impeached nor put to answer by the King, on his part; for that the said Sir William was not attainted of any impeachment suggested against him, and that the King had done him justice in this behalf; therefore he would in the same manner do him justice in the residue at the Commons request. A most full proof of the Kings and Lord's judicial power in Parliaments, even in case of a Commoner.
The same Parliament, 2. H. 4. num. 29. William Sautre, being condemned of Heresy in the Convocation by Archbishop Arundel and the Clergy, thereupon by order and advice of the Temporal Lord's, without the Prelates, (who must not have their hands in blood, though they gave the Sentence, that he should be burned) or the Commons; there issued out a Writ to the Sherifs of London, for the burning of Sautre as an Heretic, accordingly burnt thereon, being the first writ of this Nature; issued by the Lord's alone in the Kings name, before the Statute of Heresy was made and passed in this Parliament.
In the same Parliament of 2 H. 4. n. 30. The Temporal Lord's, by assent of the King, adjudged and declared Sir Ralph Lumly Knight and others Traitors, for levying war in sundry parts to destroy the K. & his people; and that they should forfeit all their lands in fee, goods and chattels, though they were slain in the field, & not arraigned nor indicted by reason thereof.
In the Parliament of 4 H. 4. n. 19, 20, 21. Sir Philip Courtney being complained against and convicted of a forcible entry into Lands, and for a forcible imprisonment of the Abbot of M • nthaem in Devonshire, and two of his Monks, was upon hearing and examination adjudged by the King and Lord's, to be bound to his good behavior, and for his contempt committed to the Tower of London prisoner.
Anno 1403. Henry Percy the younger, confederating with Thomas Percy Earl of Worcester, to raise forces • nd rebel against the King, sent Letters to the people of every County, propositum quod assumpserant, non esse contra suam ligeantiam, et fidelit tem quam regi fecerant, nec ab aliunde exercitum congregasse, nisi pro salvatione personarum suarum, & reipublicae meliori guvernatione, Quia census et Tallagia Regi concessa, pro salva regni custodia, covertebantur (ut dixerunt) in usus indebitos, et inutiliter consumebantur: praeterea querebantur, quod propter aemulorum dilationes pessimas, rex eis insensus fuerat, ut non auderent personaliter venire ad ejus praesentiaem, donec Praelati, regnique Barones regi supplicassent pro eisdem, ut coram Rege permitterentur declarare suam innocentiam, & per Pares suos legaliter justificari. Plures igitur visis his literis collaudabant tantum virorum solertiam, & extollebant fidem quam erga Rempublicam praetendebant. Having raised great forces against the King by this means; which the kings forces encountered at Shrewsbury in a pitched battle; Henry Percy and sundry of his adherents were there slain in the field, and the rest routed; For which levying of war in the Parliament of of 5 H. 4. n. 15. the said Henry Percy and his Co • federa • es were declared and adjudged Traitors by the King and Lord's in full Parliament; and their Lands, goods and cha • tells confiscated. In the same Parliament, n. 18. At the Petition of the Commons, The Lord's • en • ed and ordered, that the Kings Confessor, the Abbot of Dore, Mr, Richard Durham, and Crosby of the Chamber, should be removed out of the Kings house and Court; whereupon 3. of them appearing before the King and Lord's in Parliament; the King though he excused them, yet charged them to depart from his house, for that they were hated of the people.
In the Parliament of 13 H. 4. n. 12, 13. The Lord Roos complained against Robert Thirwit one of the Justices of the Kings Bench, for withholding from him, and his Tenants Common of Pasture and Turb • ry in Warbie in Lincolnshire, and lying in wait with 500 men for the Lord Roos. Thirwit before the King and Lord's confessed his fault, and submitted himself to their Order, who appointed 3. Lord's to end the difference; who made an award between them, that Thirwit shou • d confess his fault to the Lord Roos, crave his pardon, and tender him amends.
In the Parliament of 5 H. 5. n. 11. Sir John Oldcastle knight, being outlawed of Treason in the Kings bench, and excommunicated before the Archbishop of Canterbury for Heresy, was brought before THE LORD'S, and having heard his conviction, made no answer nor excuse thereto. Upon which Record and Process THE LORD'S ADJUDGED, that he should be taken as a Traitor to the King and Realm, carried to the Tower of London, from thence drawn through the City to the new Gallows in St. Giles without Temple-bar, and there hanged and burned hanging: which was accordingly executed.
Sir John Mortymer knight, being committed to the Tower upon supposition of Treason done against King Henry the 5. in the 1. year of H. 6. brake out of the Tower; for which breach he was indicted of Treason: being afterwards apprehended, he was brought into the Parliament of 2 H. 6. n. 18. and upon the same Indictment, then confirmed by assent of Parliament, JUDGEMENT was given against him BY THE LORD'S, that he should be carried to the Tower, drawn through London to Tiburn, there to be hanged, drawn and quartered, his head to be set on London-bridge, and his four quarters on the four Gates of London.
In the Parliament▪ of 38 H. 6. n. 20, 2 • , 22. Sir William Oldham knight, and Thomas Vaughan Esquire, were attainted of Treason by the LORD'S and in the Parliaments of 1 E. 4. n. 19. to 31. 4 E. 4. n. 28. to 38. • 4 E. 4. n. 34. to 40. sundry Knights, Esquires, Citizens and Commoners are attainted of Treason by the Lord's for levying war, and holding forts against the King, then after by Bill whose names are overtedious to rehearse; which you may peruse at leisure in the Exact Abridgement of the Records in the Tower.
To omit all other presidents of this Nature in the reigns of King H. 7.8. Ed. 6. Qu. Mary, and Qu. Elizabeth, of Commoners censured in and by the Lord's house in Criminal causes, upon impeachments, complaints, petitions, which those who please may find recorded in the Journals of the Lord's house; I shall recite only some few Presidents more of late and present times.
In the Parliaments of 18. & 21 Iacobi, Sir Giles Mompesson, and Sir John Michel, upon complaints and impeachments by the Commons for promoting Monopoli • s, Corruption, and other Misdemeanors, were fined, imprisoned by Judgment of the Lord's House, and Sir Giles degraded of his knighthood.
In the Parliament of 3. Carol • , the Commons impeached Roger Manwaring, Dr. of Divinity; for preaching and printing Seditious and dangerous Sermons ; and sent up this Declaration against him to the Lord's. June 14. 1628.
For the more effectual prevention of the apparent ruin and destruction of this kingdom (which must necessarily ensue, if the good and fundamental Laws and customs therein established should be brought into contempt and violated, and that form of government thereby altered, by which it hath been so long maintained in peace and happiness:) And to the honor of our Sovereign Lord the King, and for the preservation of his Crown and Dignity, the Commons in this present Parliament assembled, do by this their Bill show, and declare against Roger Manwaring Clerk, Dr. in Divinity, that whereas by the Laws and Statutes of this Realm, the Free Subjects of England do undoubtedly inherit this right and liberty, not to be compelled to contribute to any tax, tallage, aid, or to make any Loans, not set or imposed by common consent by Act of Parliament, and divers of his Majesty's loving Subjects relying upon the said Laws and Customs, did in all humility refuse to lend such sums of money, as without authority of Parliament were lately required of them.
Nevertheless he the said Roger Manwaring in contempt, and contrary to the Laws of this Realm, hath lately preached in his Majesty's presence two several Sermons: That is, the 4. day of July last, one of the said Sermons, and upon the 29. day of the same month the other of the same Sermons: Both which Sermons he hath since published in print, in a Book entitled, Religion and Allegeance; and with a wicked and malicious intention to seduce and misguide the conscience of the Kings most excellent Majesty, touching the observation of the Laws and Customs of this kingdom, and of the rights and liberties of the Subjects, to incense his royal displeasure against his good Subjects so refusing, to subvert, scandalize, and impeach the good Laws and Government of this Realm, and the Authority of the High Court of Parliament, to avert his Majesty's mind from calling of Parliaments, to alienate his royal heart from his people, and to cause jealousies, sedition and division in the kingdom: He the said Roger Manwaring doth in the said Sermons, and book persuade the kings most excellent Majesty.
First, That his Majesty is not bound to keep and observe the good Laws and Customs of the Realm, concerning the rights and liberties of the Subjects aforementioned, and this his royal will and command in imposing loans, taxes, and other aids upon his people, without common consent in Parliament, doth so far bind the Subjects of this Realm, that they cannot refuse the same without peril of eternal damnation.
Secondly, That those his Majesty's loving Subjects, which refused the loan aforementioned, in such manner as is before recited, did therein offend the Law of God, against his Majesty's supreme authority, and by so doing became guilty of impiety, disloyalt • e, rebellion, and dis-obedience, and liable to many other taxes and censures, which he in the several parts of his book doth most falsely and maliciously lay upon them.
Thirdly, That authority of Parliament is not necessary for raising of aids and subsidies, that the slow proceedings of such assemblies are not fit for the supply of the urgent necessities of the estate; but rather apt to produce sundry impedimen • s to the just designs of Princes; and to give them occasion of displeasure and discontent.
All which the Commons are ready to prove, not only by the general scope of the same Sermons, and books, but likewise by several clauses, aspersions and sentences therein contained, and that he the said Roger Manwaring by preaching and publishing the Sermons and book aforementioned, did most unlawfully abuse his holy function instituted by God in his Church, for the guiding of the consciences of all his servants, and chiefly of sovereign Princes and Magistrates, and for the maintenance of peace and concord betwixt all men, especially between the King and his People, and hath thereby most grievously offended against the Crown and dignity of his Majesty, and against the prosperity, and good government of this estate, and Commonwealth.
And the said Commons by protestation saving to themselves the liberty of exhibiting of any other accusation, at any time hereafter▪ or impeachment againg the said Roger Manwaring, and also of replying to the answers, which he said Roger shall make unto any of the matters contained in this present bill of complaint, and of offering further proof of the premises, or of any of them, as the cause (according to the course of the Parliament shall require) Do pray, that the said Roger Manwaring m • y be put to answer to all and every the premisses, and that such proceeding, examinat • on, trial, judgment, and exemplary punishment may be thereupon had and executed, as is agreeable to Law and Justice.
On June the 14, 1628. the Lord's sending a message to the House of Commons, that they were ready to give judgment against Manwaring, if the House of Commons would demand it. Thereupon they went with the Speaker up to the Lord's House, having agreed he should demand judgment in these words, which he then used at the Lord's Bar: The Knights, Citizens and Burgesses of the House of Commons have impeached Roger Manwaring of sundry misdemeanors, and your Lordships having taken consideration thereof, they do now by me their Speaker demand judgment against them, Which upon reading his impeachment, and full proof thereof out of his Sermons, in his presence, was done accordingly. The Judgment was given and pronounced by the Lord Keeper, all the LORD'S being in their Robes, and Manwaring at the Bar, it was delivered in these words.
"First, That Dr. Manwaring shall be imprisoned during "the pleasure of the House.
"2ly. That he de fined at 1000 l. to the King.
"5ly. That he shall be forever disabled to preach at the "Court hereafter.
"6ly. That he shall be hereafter disabled to have any "Ecclesiastical dignity, or secular Office.
Here we have a most direct president, where the whole House of Commons by their Speaker acknowledge the right of judicature in the case of a Commoner to be only and wholly in the Lord's, even in a criminal cause, and thereupon pray the Lord's to give judgment against him upon their Impeachment, which they did accordingly in their robes, as Judges, by the mouth of the Lord Keeper their Speaker.
In this very Parliament now sitting, Decemb. 21. Jan. 14. Febr. 11. 1640. and July 6. 1641. The Commons House by their Members impeached Sir John Bramston Chief Justice of the Kings Bench, Sir John Finch Chief Justice of the Common Pleas, Sir Humphry Davenport Chief Baron, Judge Berkly, Judge Crawly, Baron Weston, and Baron Trever of high Treason, and other misdemeanors;
From all these punctual successive presidents, impeachments and clear confessions of the Commons House, themselves in many former and late Parliam and in this now sitting, it is undeniable; That the King and Lord's jointly, and the Lord's severally without the King, have an indubitable right of Judicature, without the Commons, vested in them, not only over Peers themselves, but likewise Commoners, in all extraordinary criminal cases of Treason, Felony, Trespass, and other Misdemeanors triable only in Parliament, which hath been constantly acknowledged, practiced, submitted to in all ages without dispute: much more then have they such a just, judicial, rightful power, in cases of breach of their own privileges, of which none are, or can be Judges but themselves alone, as Sir Edw. Cook resolves, they being the supremest Court. And to deny them such a power, is to make the Highest Court of Judicature in the Realm inferior to the Kings Bench, and all other Courts of Justice, who have power to judge and try the persons, causes of Commoners, yea to commit and fine them for contempts and breaches of their Privileges, as our Law books resolve, and every man's experience can testify.
The Lord's right of Judicature both over Peers and Commoners in criminal causes, being thus fully evicted against the false • ignorant pretences of illiterate Sectaries, altogether unacquainted with our Histories and Records of Parliament, which they never yet read nor understood; there remains nothing but to answer some Authorities, Presidents, and Objections, produced against it.
These presidents in Sir Edward Cook, Sir Robert Cotton, and others) are of 3 Sores. 1. Such as are produced by them only, to prove that the Commons have a Copartnership and joint Authority with the King and Lord's in the power and right of Judicature in our Parliaments. 2ly, Such as are objected to evidence they have a sole power of Judicature in themselves in some cases, without the K. and Lord's. 3ly. Such as are urged to prove, they have no right of Judicature in Parliament in the cases of Commoners that are capital or criminal.
I shall propose and answer them all in order.
1. Sir Edward Cook, and Sir Robert Cotton produce these presidents, to prove, That the Commons have a Joint in • erest, right and share with the King and Lord's in the Judicatory, or Judicial power of Parliaments; which I shall propound according to their Antiquity. The 1. President alleged for it, is that of Adomar Bishop of Winchester elect, (cited by Sir Robert Cotton, in his Post-humous Discourse concerning the Power of the Peers & Commons in Parliament in point of Judicature ) who An. 44 H. 3. as affirms, he was then exiled by the Ioint Sentence of the King, Lord's and COMMONS, as appears by the Letter sent to Pope Alexander the 4th: ( Si Dominus Rex et Regni Majores hoc vellent, meaning Adomars revocation) COMMUNITAS tamen ipsius ingressum jam nullatenus sustineret. The Peers subsign this answer with their names, and Peter de Mo • tfort, vice totius COMMUNITATIS as Speaker or Proctor of the Commons.
I answer, under the favor of this renowned learned Antiquary, that this president is full of gross mistakes. For 1. Bishop Adomar was not banished the Realm at all, either by King, Lord's or Commons, but fled out of it voluntarily for fear, to avoid the Barons, who pur • i • ed him with forces, as Mat. Paris, with others, relate; which the Nobles and Generality of the Barons in direct terms inform this Pope, in another Letter sent together with this objected. Maxim cum ipse a regno expuisus non extiterit, sed sponte cesserit, non ausus exhibitionem justi • iae, quae singulis, secundum Iuramenta Regis et Procerum debebatur, expectare. 2. The reason why he thus sled, was to avoid the Justice of THE KING & LORD'S, as they in plain terms inform the Pope; without any mention of the Commons. 3ly, This expulsion is said to be in 44 H. 3. or rather in 41. as Mat. Paris and others inform us, An. 1458. And that is at least 5. or 8. years before any Commons, Knights and Burgesses were summoned to our Parliaments, by Sir Robert Cottons, Mr. Seldens, and others confessions, and that by the Writ in 49 H. 3. Rot. Claus. m. 10. dorso. Therefore if the Commons had any vote in his banishment, it was 5. or 8. years before they were admitted into our Parliaments: and so a Banishment not in, but out of Parliament. 4ly, This Letter to Pope Alexander begins thus, Sanctissimo Patri in Christo, Alexandro. &c. COMMUNITAS COMITUM, PROCERUM, MAGNATUM, ALIORUMQUE REGNI ANGLIAE; and it is subscribed jointly by 6. Earls, and 5. Noblemen, whereof Petrus de Montfort is the last, VICE TOTIUS COMMUNITATIS (to wit, Communitas Comitum, Procerum, Magnatum aliorumque Regni Angliae, who writ the Letter, mentioned in the beginning thereof, not of the Commons House, contradistinct from the Earls, Nobles, Great-men, and Barons of the Realm) praesentibus literis sigilla nostra apposuimus; in testimonium praedictorum ; not by the 10 first Earls and Nobles, in behalf of themselves, the Earls, Lord's and great men of the Realm, and by Peter de Montford, as Speaker or Proctor of the Commons, who (as Sir Robert Cotton himself acknowledgeth) had no Speaker a • all, in 6 E. 3. (An. 1332. being at least 74. years after this Letter) nor yet till 51 E. 3. rot. Parl. n. 87. for ought appears by History or Record, being 119. years after this Letter. Wherefore this president consisting of so many mistakes (as I have more largely proved in my Preface to Sir Robert Cottons Exact Abridgement of the Records in the Tower, ) makes nothing at all for the Commons joint Right of Judicature with the King and Lord: The rather, because the Communitas in the objected clause of the Letter, is not meant, of the Commons in Parliament; but the Communitas or Universitas Regni popularis etsi non Nobiles, (as Mat. Paris stiles them,) or popular rabble of Commons out of Parliament.
The 2. president, is that of Sir Nicholas Segrave 33 E. 1. rot. 33. Cooks 3. Institutes, p. 7. & 4 Instit. p. 23. in the margin. Who being charged in Parliament in presence of the King, Earls, Barons and OTHERS OF THE KINGS COUNCEL, (not the Commons or Burgesses, but the Judges, and Kings learned Council at Law, or his Privy Council, who were assistants to the Lord's, as I conceive, which Sir Edward Cook mistaking, would have to express the Commons in Parliament) then and there present ; that the King in the wars of Scotland, being among his enemies, Nicholas Seagrave, his leigeman, who held of the King by Homage and fealty, and served him for his aid in that war, 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 he would answer him in the Kings Court, &c. and thereupon gave him his faith. After which Nicholas withdrew himself from the Kings hast and aid, leaving the King in danger of his enemies, and adjourned the said John to defend himself in the Court of the King of France, and prefixed him a certain day: and so as much as in him was, subjected, and submitted the Dominion of the King and kingdom, to the subjection of the King of France: and to effect this he took his journey towards Dover to pass over into France. All which he confessed, and submitted himself therein de alto et Basso, to the Kings pleasure. And hereupon the King willing HABERE AVISAMENTUM, to have the advise of the EALS, BARONS, LORD'S, ( magnatum ) and OTHERS OF HIS COUNCEL, enjoined them upon the Homage, fealty, and allegiance wherewith they were obliged to him, quod ipsi sideliter CONSULERENT, that they should faithfully ADVISE HIM, what punishment should be inflicted for such a fact thus confessed? Qui omnes, habito super hoc diligenti tractatu, et avisamento, &c. Who all having had thereupon di • igent debate and advise, having considered and understood all things contained in the said fact, DICUNT (not by way of Judgment judicially pronounced, but of answer to the Kings question propounded, and as their opinion of the cause) Said, that this fact deserved loss of life & members &c. So as this offense (notes Sir Edward Cook) was then adjudged in Parliament to be High Treason. But under his favor, First, here was no judgment at all given against the party himself, but only an opinion and advice touching this 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 proof of any actual proper judicature vested in both Houses. Secondly, For ought appears, this question was only propounded to the Earls, Lord's, Barons, and the Kings Council that assisted them; and so only to the House of Peers, not to the Commons : and answered, resolved only by them; 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.
That these alii de Concilio, were not the Commons, as Sir Edward Cook insinuates, but the Kings Justices and Judges who attended them, is most clear by this passage of Matthew Westminster, who lived and writ the story of it at that time in these words.
And therefore it follows, that the LORD'S 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 Lord's, when required by the King, not of judging or pronouncing sentence. Fourthly, Sir Edward Cook citing this president, to prove That both Houses together have power of judicature ; must grant, that even in 33 E. 1. there were two distinct Houses of Parliament, who upon special occasions, (as now at conferences, &c.) met and advised together; and therefore the division of the Houses was before Edward the third his reign, and very probable as ancient as the summoning of Knights, Citizens, and Burgesses to the Parliament, which some make as ancient as King Henry the first, or King Henry the 2. others not before King Henry the third, in the 49 year his reign, Father to King Edward the first. So as this president makes quite against the Levellers and Lilburnians designs and opinions.
The 3 and 4. Presidents are those of Hugh Audley his Wife, Claus. 12 E. 2. m. 5. of Gaverston and the two Spencers Exiles, 15 E. 2. forecited: wherein the Commons gave their assents to the attainders and exiles of Gaverston, and the Spencers, and to the reversal of them: But this I have already proved, to be only by way of Bills, not judicature, by the legislative, not judicial power of Parliament, and that they were judicially condemned only by the Lord's, therefore these are nothing to the purpose, and against the Objectors.
The 5. and 6. are the depositions of King Ed. the 2. and Richard the 2. for their mis-government, wherein the Commons had a joint vote and concurrence with the Lord's, which I shall hereafter answer in the supplement. p. 429. to 460.
The seventh President is that of Eliz. Burgh▪ Widow, in the Parliament of 1 E. 3. rot. Parl. n. 11. who complained by Petition to the King, that in the reign of King Edward the 2. she was by his Writ commanded to come unto him to York ; and there by Hugh Spencer the younger, and Robert Baldock, and William Cliff his instruments, enforced by duresse to enter into an Obligation, to this effect: that if she received any who were contrary to the King, or married any man without the Kings consent, or if she gave any lands or tenements: which she held in fee or in dower to any man living without the Kings license, that for any of these she should forfeit all her Lands, Tenements, Goods, and Chattels to the King : as appeared by the transcript of the Bond annexed to her Bill; whereupon she prayed Grace, and remedy against this duresse, and acquittance of our Lord the King from this Obligation. Hereupon a Writ was sent to the Clerk of the Privy Seal, in whose custody the Obligation was, to bring it without delay, Coram Concilio nostro in Parliamento, ad faciendum inde ulteriut, quod per idem Concilium nostrum contige it ordinari : which being brought and delivered accordingly the 5 of March, and deliberately read in full Parliament, and agreeing with the transcript annexed to her Petition in all things: Pur ceo que avys est as Archievesques, Evesques, Counts, & BARONS & auires Grandes, et a TOUTELA COMMONALTIE de la terre, que lo dit escrit est fait contre ley de la terre, & enconter tout manere de reason, si fuist le dit escrit PER AGARD DEL PARLIAMENT dampne illeoques & livera ala dit Elizabeth.
I answer, 1. That this judgment was given only in a civil case touching an Obligation made by duress, not in a criminal. 2ly. That this Petition was directed only to the King and his Council, not to the Commons in Parliament, and the business heard before them. 3ly. That this being a Common case, there being then many Petitions and complaints that Parliament of bonds of this nature, the Commons joining with the King and Lord's in this judgment of Parliament in her case, was only by way of Bill, not in an ordinary way of judgment; they exhibiting & passing a Bill for that purpose as well as a Petition, as is clear by the words of the Roll, and by the printed Statute of 1 E. 3. c. 3. That fines, sales, and gifts of land, and recognizances of debt made by force and duress to this Sir Hugh Spencer, Robert Baldocke, &c. or to any of them, be defeated : And Parl. 2. ch. 15.
The 8th. President that may be objected is this: Adam de Arleton or Tarlton, Bishop of Hereford, in a Parliament held at London, Anno 1322. was apprehended by the Kings Officers, and brought to the Bar to be arraigned for Treason and Rebellion, in aiding the Mortimers and others in their wars with men and arms ; where having nothing to say for himself in defense of the crimes objected, and standing mute for a space; at last he flatly told the King, That he was a Minister and Member of the Church of Christ, and a consecrated Bishop, though unworthy; therefore I neither can, nor ought to answer to such high matters without the consent of my Lord Archbishop of Canterbury (my direct Judge next after the Pope) and of the other Fathers the Bishops my PEERS. At which saying the Archbishops and Bishops there present, rose up, and interceded to the King for their Colleague; and when the King would not be entreated, they all challenged the Bishop as a Member of the Church, exempt from the Kings Justice and all secular judicature. The King forced thereunto by their claimors, delivered him to the Archbishops custody, to answer elsewhere for these crimes. Within few days after, being apprehended again, and brought to answer before the Kings royal Tribunal in the Kings Bench at Westminster, for his Treasons; the Archbishops of Canterbury, York and Dublin, hearing of Tarltons arraignment, came with their Crosier staves carried before them, accompanied with 10 Bishops more, and a great company of men, entered into the Court, and by open violence rescued and took away the Bishop from the Bar, before any answer made to his charge, chasing away the Kings Officers, and proclaiming openly, That no man should lay violent hands on this (Trayterly) Bishop, upon pain of excommunication, and so departed. The King exceedingly incensed at this High affront to Justice and himself, commanded an Inquest to be impanelled, and a lawful inquiry to be made of the Treasons committed by the Bishop, in his absence, being thus rescued from Justice. The Jury, without fear of the King, or any hatred of the Bishop, found the Bishop guilty of all the Articles of Treason and Rebellion, whereof he was indicted. Whereupon the King banished the Bishop, & seised all his temporalties, lands and goods. But yet notwithstanding the Bishop; by consent of all the Prelates, was by strong hand kept in the Archbishops custody, till he had reconciled him to the King. After which, by way of revenge he was a principal instrument of the Kings deposing and murder; which having effected, in the Parliament of 1 E. 3. 6. this Bishop petitions that the Indictment and Judgment against him, and the proceedings therein might be brought into Parliament and there nulled, as erroneous, which was done accordingly:
I answer, that as this rescue of, proceeding, and judgment against this traiterous Bishop were singular, So is this repeal and reversal of it as erroneous, before and by all the Commons and whole Parliament, as well as King, Prelates, and Nobles, and that no doubt at the special instance of this, and all the other Bishops, highly concerned in this cause. Wherefore this one Swallow makes no Summer, and proves no judicial authority jointly with the King and Lord's, since they never joined with them before nor since in reversing of any such error upon Judgment in the Kings Bench; but only where an erroneous Attainder by Bill in one Parliament was reversed by Bill in another.
The 9th. is the Clause of King Edward the thirds Letter to the Pope in the 4th. year of his reign, already answered, p. 274.
The 10th is Sir John at Lees case, 42 E. 3. n. 20. said to be ADJUDGED by the Lord's and COMMONS. I answer, this Case is somewhat m • staken; For the Record only mentions, That the 21 day of May, the King gave thanks to the Lord's and Commons for their coming and aid granted; on which day all the Lord's and sundry of the Commons dined with the King. After which dinner Sir John at Lee was brought before the King, LORD'S & COMMONS next aforesaid (who dined with the King) to answer certain objections made against him by William Latimer, about the wardship of Robert Latimer; that Sir John being of power, had sent for him to London, where by duresse of Imprisonment he enforced the said William to surrender his estate unto him ; which done, some other Articles were objected against the said Sir John, of which for that he could not sufficiently purge himself, HE was committed to the Tower of London, there to remain til he had made fine and ransom at the Kings pleasure, and command given to the Constable of the Tower to keep him accordingly. And then the said Lord's and Commons departed: After which he was brought before the Kings Council at Westminster, which COUNCEL ORDERED the said ward to be reseised into the Kings hands: So as this record proves not that this judgment was given in the Parliament house, nor that the Lord's and Commons adjudged Sir John, but rather the King and his Council in the presence of the Lord's and Commons, after the Parliament ended.
The 11, 12, 13. Are the cases of the Lord Latimer, Lord Nevill, and Richard Lions, forecited: Here, p. 283, 284, 350. which are nothing to purpose, the Lord's alone giving judgment in them without the Commons, who did only impeach them; and the King removing the Lord Latimer from his Council at their further request: So that these 3. cases refute their opinions who object them.
The 14. is the Case of Weston and Gomines, 1 R. 2. n. 38, 39. In which the Lord's alone gave the Judgment, as I have proved, p. 332, 333: Therefore pointblank against the Objectors.
The 15. president is that of John Kirby and John Algar, two Citizens of London, in the Parliament of 3 R. 2. n. 18. who conceiving malice against John Imperial, (an Ambassador sent hither from the State of Genoa, who had procured a Monopoly to furnish▪ England with all such wares as come from the Levant, keeping his staple at Southampton, ) killed him in London, upon a sudden quarrel picked with him; for which they being committed, this being a new and difficult case, and the Judges being in doubt, whether it were Treason, or no? it was thereupon propounded in Parliament, (according to the Statute of 25 E. 3. c. 2.) like that of 25 E. 3. Parl. 2. of those who are born beyond the Seas, 14 E. 3. c. 5. 13 E. 1. c. 24.32 E. 1. rot. 17. & 22. Claus. 46 H. 3. n. 3. Claus. 14 E. 2. dors. 17. 17 E. 3. n. 24.21 E. 3. n. 60.40 E. 3. n. 14, 15.14 E. 3. n. 30, 31.1 R. 2. n. 95.1 E. 3. f. 6, 7.39 E. 3.21. a. 40 E. 3.34. b. Cook 8 Rep. f. 158.3 Instit. p. 6, 7.4 Instit. p. 67, &c. 2 Instit. p. 408. West. 2. c 24. and Bracton, l. 2. c. 16, l. 3. c. 9. Fletae l. 2. c. 6. resolving that all difficult causes are to be declared to and determined in and by Parliaments. This case being examined and debated by and between the Lord's and Commons, was afterwards there declared b • fore the King, and determined and agreed That this fact and murder is Treason, and a crime against the Kings Majesty; in which case no privilege of Clergy ought to be allowed to any man. Whereupon 7 R. 2. rot. 8. Kirby and Algar were attainted of High Treason in the Kings Bench, and executed as Traitors. Walsingham writes this Parliament was held at Northampton, against the consent of most of the Realm, but especially against the will of the Londoners ; that so revenge might be taken upon Kirkeby for this murder: they fearing, that if the Parliament were held at London, the Londoners would not suffer him to be executed, without some danger to those who condemned him: whereupon he was condemned, drawn, and executed at Northampton.
To this I answer first: That Kirby and Algar were not impeached, arraigned, tried or condemned in Parliament for this Treason, but in the Kings Bench, for if they had, the Lord's only had judged and given sentence against rhem, as in all the premised cases. 2ly, Their case being new, was thought fit to be propounded to the Commons by the Kings direction, as well as to the Lord's, who upon debate agreed it to be Treason. 3ly, When it had been debated, it was declared and finally resolved and agreed before the King in full Parliament, and that by Bill, and the Legislative, not Judicial power, as Mr. S • . John informs us. Therefore it makes nothing for the Commons right and power of Judicature; which after all these presidents all the Commons in the Parliament of 1 H. 4. n. 79. confess to have been always of right in the King and Lord's, and not in them ; which sways away all the forecited presidents at once, as impertinent, and misapplied.
For the presidents of 21 R. 2. n. 29. 2 H. 5. n. 13▪ & 28 H. 6, n. 19. misrecited by Sir E. Cook, 4 Instit. p. 23. & 3 Inst. p. 22. they are already answered p. 296, 297, 299, 344. And for those of Sir Giles Mompesson, Sir John Michel, Viscount St. Alban, and the Earl of Middlesex: himself confesseth, (and I have here cleared, p. 303, 304.) that the notable Judgments against them were given by the Lord's, at the prosecution of the Commons, who were only their prosecutors, not Judges. These are all the Presidents I find, that are objected, to give the Commons a share with the King and Lord's in the Judicature in our Parliaments; which evince it not, but clearly disprove it.
The 2. sort of Presidents insisted on by Sir Ed. Cook, are to prove, a Judicial Authority in the House of Commons alone, without the Lord's, in cases of their own Members, and Servants, in matters of elections, breach of Privilege, or misdemeanors in the Commons house; for which they have imprisoned and sometimes fined Serjeants, Baylifs, Sherifs, committed their own Members, adjudged their elections void, suspended, excluded, ejected them the house. The 1. ease is that of Muncton 2 Aprilis 1 Mariae committed by the Commons to the Tower for striking William Johnson a Burgess. The 2. of Thomas Lucy 8 Eliz. removed out of the House for giving 4 l. to the Mayor of Westbury to be chosen a Burgess, and the Major fined and imprisoned. The 3, of Arthur Hall, 23. Eliz. who for discovering and publishing the Conferences of the House, and writing a Book to the dishonor of the house, was committed to prison. These matters were examined and adjudged in the House of Commons, Secundum leg • m & Consuetudinem Parliamenti, and he thereupon committed to the Tower for 6. Moneths, fined 500 marks, and expelled the House. And in that Parliament 18 Martii, a fine was asses • ed by the House on every Member that was absent without leave. To these alleged by Sir Edw. Cook, I shall superadd the ensuing; Sir Robert Brandling was committed to the Tower 27 Eliz. for striking Withe • ington a Burgess. 3 Jacobi one was fined for causing a Members Servant to be arrested; though he claimed his privilege. 12 Jacobi Locke and More were ordered by the Commons to ride both on one horse, with their faces to the horses tail, for arresting a Servant of Mr. Whitlocks, then a Member, against his privilege; which was accordingly executed. In 2 Caroli, Sir George Hastings being elected knight for Leicestershire, and he then being arrested, his witnesses had their charges given them against the Sherif, and he fined. In the Parliament of 3. Caroli, Sir Thomas Savils case, 29. April 1628. Thomson Sherif, and Henloe Alderman of York for abuses in the election, were ordered to be committed to the Serjeant of the House, during the pleasure of the Commons House, to acknowledge their offenses at the Barr on their knees, and pay all due fees, and to make a submission in York. In 3. Caroli, Mr. John Baber was suspended the house about billetting Soldiers. In 3. Car. the Commons house committed Mr. Laughton and Mr. Trelawny to the Tower during pleasure, and Sir William Wray, and Mr. Edward Trelawny to the Serjeant at Arms, and ordered them to make a submission, & acknowledgement of their offenses in the House at the Bar, and in the County at the Assizes, they kneeling at the Barr all the while the Speaker pronounced the Judgment against them, for writing menacing Letters to Sir John Elliot, and Mr. Coriton, and to others of the County of Cornwall, disturbing their election, and contemning the warrant of the House when sent for. In this Parliament of 17 Caroli now sitting, the Commons house turned out sundry Members, who were Projectors, and voted out many others for Delinquency, ordering New elections in their places, without the King or Lord.
I answer, 1. That all these objected presidents are of very puny date within time of memory; therefore unable to create a Law or custom of Parliament, or any right of sole Judicature in the Commons House. 2ly, They were all made by the Commons themselves, unfit Judges in their own cases, much less over one another, being all of equal Authority, and so unable to seclude, imprison or fine one another, no more than one Judge or Justice to fine, imprison, or uncommission another; since Par in parem non habet imperium. 3ly, They are all against Law, because & coram non Judice, the Commons House having no right or power of Judicature, much less of sole Judicature in our Parliaments, but only the King and Lord's, as I have formerly proved by reasons and presidents in all ages. 4ly, These presidents are but few, never judicially argued, and rather connived at, than approved by the King and Lord's, taken up with other more public businesses; therefore passing sub silentio, they can make no Law rule, or right, as is resolved in Long. 5 E. 4. f. 110. Cooks 4. Reports, f. 93 94. Slades case, & 6 Report, f. 75. Druries case. 5ly, There are many express ancient Presidents, Statutes, Judgments, in most former Parliaments to the contrary, sundry of them upon the Commons own Petitions and complaints, which will over-balance and control these few late Presidents warranted by no old Records or Statutes whatsoever, but contradicted by the constant practice of former ages; To clear which truth beyond contradiction, I shall show you the very Original of the Commons summons to Parliament by the Kings writs, (out of mere grace, not ancient right or custom,) with the several varieties of Writs, Statures touching elections of Knights, Citizens, Burgesses, and chief cases resolved in Parliaments touching Elections & breaches of Privileges, relating to Members or their menial Servants, that I find upon record, which will abundantly clear this point, and refute these irregular puny presidents.
The original of our Parliaments, as now constituted, of King, Lord's and Commons, is by several of our Historians, Antiquaries, and Writers, referred to the 16. or 17. year of King Henry the 1. or at least to Henry the 2. his reign; which I have already refuted, by a particular list of all the Parliaments under them: Yet many of this opinion affirm, that the Commons were not constantly summoned to our Parliaments, but only the Lord's Spiritual and Temporal, before the 49. of King Henry the 3. and beginning of Edward the 1. his reign, neither had they a Speaker, till 51 E. 3. Therefore no power of Judicature over their Members. The first Writ I find extant, that savors of summoning Knights to Parliament, is that in the 15. year of King John, wherein this King sent a Writ to the Sherif of Oxford in these words.
Rex Vicecomiti Oxford salutem. Praecipimus tibi quod omnes Milites Ballivae tuae, qui summoniti fuerunt esse apud Oxoniam, ad Nos à die Omnium Sanctorum in 15. dies, venire facias cum armis suis, Corpora vero Baronum, sine armis singulariter: et IV. DISCRETOS MILITES DE COMITATU TUO illuc venire facias ad Nos ad eundem terminum, AD LO QUENDUM NOBISCUN DE NEGOTIIS REGNI NOSTRI. Teste meipso apud Witten 11 die Novembris.
This is no Writ of Summons to Parliament, as some take it, but rather to a Military Council, as I conceive it. For 1. There is no mention of any Bishops, Abbots, Priors, Spiritual Lord's, Citizens or Burgesses summoned thereto▪ but only of Barons without arms; and Knights with arms. 2ly, Of all knights they had formerly summoned to appear there. 3ly, Of 4. not 2. discreet Knights out of every County; and that not ad Parliamentum nostrum, but, ad Nos venire facias. 4ly, They were not to be elected by the people, but immediately summoned, elected and sent by the Sherifs themselves. 5ly, They were to come ad loquendum nobiscum, not, ad faciendum & consentiendum hiis, &c. as the usual Writs of Summons for Knights of Shires are since; without any power of Judicature to fine, seclude, or question one another's elections or returns, as now.
The very first express writ extant in History or Records that I can meet with upon search, for the calling of Knights, Citizens and Burgesses to Parliament, is in 49 • 3. where the King after the battle of Evesham by his Writs summoned no less than 64 Abbots, 36 Priors, besides the Bishops, and 5. Deans of Cathedrals, and the Temporal Earls and Barons, only 23. in number, the rest being slain in the field, or in actual rebellion. After their Writs of Summons and name, • ollows this Writ or Note of summons for Knights, Citizens, and Burgesses, and Barons of the Cinqueports. Item mandatum est singulis Vicecomitibus per Angliam, quod VENIRE (not, el • gi.) FACIANT duos Milites de Legalioribus, Probioribus, et discretioribus Militibus singulorum Comitatuum AD REGEM Londoniis, in Octabis praedictis, in forma supradicta. Item in forma praedicta scribitur CIVIBUS ▪ Eborum, Civ • bus Lincoln, & caeteris Burgis Angliae, quod mittant in forma praedict. DUOS DE DISCRETIORIBUS▪ LEGALIORIBUS & PROBIORIBUS TAM CIVIBUS QUAM BURGENSIBUS SUIS. Item in forma praedicta mandatū est Baronibus et probis hominibus Quinque Portuum, prout continetur in brevi inrotulato inferius. Here the King 1. limited both the number and quality of the Knights, Citizens and Burgesses, when first summoned to our Parliaments: 2ly, He directed particular Writs to all Sherifs to summon (not to elect by the choice of the Freeholders) two of the legallest, honestest▪ & discreetest Knights in their Counties, which they alone were then to make choice of▪ 3ly, He sends particular Writs to some (not all) Cities, and the rest of the Burroughs of England, to send two of their discreetest, legallest and honestest Citizens ; and so to the Cinqueports to send such Barons to this Parliament, And if they returned any not thus qualified, against the form of these Writs, no doubt the King himself might refuse, seclude them: and he with his Lord's, were the sole Judges of their fitness for that service, not they themselves to judge of their own or their fellow Members fitness or incapacity.
The first seclusion of any Knights, Citizens and Burgesses in Parliament, and electing others in their places, was by the King himself with his Councils advice, (not by the Commons themselves) for willful absence. Claus. 5 • . • . m. 26 dorso: where divers Knights of Shires, Citizens and Burgesses departing from the Parliament held at London, without the Kings special license, the King thereupon issued out Writs to the Sherifs of Yorkshire and other Counties, to summon all such Knights, Citizens and Burgesses within their Bayliwicks to return to the Parliament, vel alios ad hoc idoneos loco ipsorum, si ad hoc vacare non possunt, eligere, &c. or to cause others who were fit to be elected in their places, if they could not attend▪ the Parliament; with sufficient authority from the Counties, Cities, and Boroughs, to consent to those things which should be ordained at the next Session of Parliament, then prorogued to a certain day. Here the King alone by his Writ takes authority to discharge those Knights, Citizens and Burgesses, who departed from the Parliament without his license, and would or could not attend it, without the Commons votes or assents; and to command the Sherif to elect other sit persons in their places.
Claus. 4 E. 3. m. 13 Dorso. The King having issued out writs of Summons to Parliament, dated Octob. 23. The 3 of November following, he sent writs to all Sherifs, to proclaim in all places,
To omit the summoning of sundry Merchants to attend the Parliament and Council, to be advised and treated with upon sundry occasions, in the Clause Rolls of 11, 12, 13, 14. and 16 Edw. 3. Claus. 26 E. 3. m. 14. dors. there is a Parliamentary Council summoned, to wit, two Knights are by the Writ to be chosen and sent out of every Counry, and but one Burgess out of every Burrough: Claus. 27 E. 3. m. 12. dorso; Summonitio Concilii ; the Writ commands only one Knight to be chosen, and sent out of every County, but 2 Citizens and Burgesses out of every City and Burrough: And the Prologue of the printed Statute of the Staple made therein, 27 Ed. 3. recites, that there was in it only, of every County one Knight for all the County, according to the limitation in the Writ.
Claus. 45 E. 3. m. 29. The Parliament having granted a Subsidy to the King payable out of every parish, and then departing, the King for the better and speedier levying thereof, desired the advice of the Commons, yet would not put them to the trouble to meet all together; And therefore issued out Writs to summon one Knight out of every County, and one Citizen and Burgess out of every City & Borough, that had been of the former Parliament, to meet together at Winchester. Who meeting accordingly, had their expenses allowed them. Dors. 22. Here the King summons only half the Commons House, to complete what the whole had granted; without the other moity, for their greater ease and saving expenses.
In the Parliament of 46 E. 6. n. 13, 14. There was this Ordinance made and read; Because that men of Law which pursue divers businesses in the Court of the Kings for particular persons, with whom they are of Counsel, procure and make divers Petitions to be preferred in Parliament, in the name of the Commons, which nothing concern them; but only those singular persons, or those whom they cause to put them in: as also Sherifs, which are common Officers to the people, and ought to reside upon their Office, to do right to every man, are named, and have been before th • se hours retorned Knights of Shires in Parliaments by the same Sherifs. It is agreed and assented in this Parliament, that from henceforth no man of Law pursuing businesses in the Courts of the King, nor Sherif, for the time that he is Sherif, shall be returned or accepted Knights of Shires; and that those who are men of Law and Sherifs now returned to Parliament shall have no wages. But THE KING WILL that Knights and SERJEANTS of the best esteem in the Country, shall be henceforth returned Knights in Parliament, and that they shall be chosen in full County. Sir Edward Cook inform us, That this Ordinance was made in the Lord's house, (to wit by the King and Lord's without the Commons, as he insinuates) If so, then the K. & Lord's alone in that age, had the sole power, 1. of disabling, secluding unfitting Members, as practicing Lawyers and Sherifs, to be elected knights of Shires for the future. 2ly. of depriving them of wages, though elected for that Parliament before the Ordinance made; but not of ejecting them out of the House when duly elected, because till now there was no Law or Ordinance against their choice. 3ly. Of rejecting and refusing to accept such for knights, if elected and returned after this Ordinance; as the words, no accepted chivalers des Countees, superadded too ne • oient returnez imply. 4ly. By virtue of this Ordi • ance, all Sherifs of Counties have been not only disabled, but prohibited to be elected knights, & Members of the Commons House, by this special Clause inserted into all writs for elections. Nolumus autem quod tu, vel aliquis alius Vicecomes ALIQUALITER SIT ELECTUS. Now the Writ being the sole authority and ground for all elections, prescribing the Freeholders to elect 2 of the most discreet, fit & sufficient persons, and precisely inhibiting the election of any Sherifs in any sort, either for Knights, Citizens, or Burgesses, by virtue of this Ordinance. The elections of such are merely void, and the King and Lord's may justly seclude them, if e • ected and retorned whiles Sherifs. 5ly. As Sherifs have been secluded by this Clause and Ordinance ever since; so in the Parliament of 6 H. 4. All Apprentices, and other men at Law, were likewise secluded by this special Clause inserted into the Writs of Summons. Nolumus autem quod tu, seu aliquis alius Uicecomes regni nostri, aut Apprentius, aut aliquis alius homo ad Legem aliqualiter sit electus, as appears by the Exem. • ca • ron thereof in the Claus. Roll of 5 H. 4. pars 2. m. 4, dorso, in the Tower, (which I have viewed with mine own eyes) by sundry transcripts thereof in Manuscripts, and by this testimony of Thomas Walsingham, who lived, & in writ the History of that time. Direxit ergo Rex Brevia Vicecomit bus, ne quosquam pro Comitatibus eligerent quovismodo milites, qui in jure Regni vel docti fuissent vel Apprenticii, sed tales omnino mi • teren ur ad hoc n • gotium quo • constat ignorare cujusque juris▪ methodum, factumque est ita. Whence he stiles it in his Margin▪ PARLIAMENTUM INDOCTORUM; No Lawyer being elected by reason of this Clause grounded on the forecited Ordinance. Sir Edward Cook, (who is not only full of mistakes and mis-recitals of Records, but most confident in them) citing this passage of Walsingham thus bodly contradicts him, But the Historian is deceived, for there is no such Clause in these Writs, but it was wrought by the Kings Letters by pretext of an Ordinance in the Lord's House, in 46 E. 3. when as the Writ itself in the Clause Roll, concurring which Walsingham, ascertains me, that Sir Edward himself was deceived, not the Historian, by whom, or upon what mis-information I know not. And that he was so in truth, we have his own express confession and testimony against himself within few leaves after. At the Parliament holden at Coventry, Anno 6 H. 4. the Parliament was summoned BY WRIT, and by co • ler of the said Ordinance of Parliament in the Lord's House, in 46 E. 3. it was forbidden, that no Lawyer should be chosen, Knight, Citizen, or Burgess by reason whereof this Parliament was fruitless, and never a good Law made thereat, and therefore called Indoctum Parliamentum, or Lack-latin Parliament: And seeing these Writs were against Law▪ (ergo this Clause against Lawyers elections was in the Writs themselves) Lawyers ever since, (for the great and good service of the Commonwealth) have been eligible : And then contradicting himself again in the very next lines, he adds: And albeit the prohibiting clause had been inserted in the Writ (implying it was not) yet b • i • g against Law, Lawyers were of right eligible, and might have been elected Knights Citizens or Burgesses in that Parliament of 6 H. 4. His reason is, because Lawyers being eligible of Common right, cannot be disabled by the said Ordinance of Parliament in the Lord's House, being no Act, though Acts and Ordinances of Parl. are both the same in substance vigor, (as I have elsewhere proved at large against his New false Doctrine to the contrary. Wherefore this Ordinance is still obligatory to practicing Lawyers, whiles they practice, as well as to Sherifs, whiles they are Sherifs, unless they give over their practice sitting the Parl. to attend the service of the House, which their practice makes them to neglect.
Clause 8 E. 2. m. 31. The chief Justice, and other Officers of Ireland, and R. de Burgo Earl of Ulton, are sent for by Writ to come to the Parliament of England, ad tractandu • cum Praelatis et Proceribus de regno nostro praedicto, Claus. 50 E. 3. part. • . m. 23. Pro Hibernis de Hibernia venientibus ad Parliamentum Angilae, there is a Writ directed to the Justices and Chancellor of Ireland, Quod de Communitate Comitatuum & Burgorum terrae praedictae faciatis habere per Breve de magno sigillo nostro hominibus ejusdem terrae nostrae praedictae regnum nostrum▪ Angliae penes Concilium nostrum, pro Communitate Comitatuum & Burgorum, ultimo venientibus; videlicet euilibet eorum de Communitate Comitatus, pro quo electus fui • , sive Civitatis, sive Burgi, rationabiles expensas suas, &c. Teste 25 Julii. The Parliament ended the 10th. of July. By which Writ it is apparent, That not only the great Officers, and some Nobles, but likewise knights and Burgesses were sometimes summoned, and chosen in Ireland to come to this Parliament of England, and had Writs for wages allowed them. These varieties of the Kings writs for electing Knights and Burgesses, summoning sometimes 4. sometimes 2. sometimes but one Knight out of a County; most times 2 Citizens and Burgesses, sometimes but one; limiting the qualifications of their persons, and summoning not only Great Officers and Peers, but likewise, Knights, Citizens and Burgesses out of Ireland, and particular persons by name amongst the Commons, as in 32 Ed. 3. part 2. m. 32. dorso, together with his making of new Burroughs by his Patents, and authorizing them to send Burgesses to Parliam. when they never sent any before, there being now three times as many Burgesses of Parliament as there were in the reigns of King Edward the 1, 2, and 3. (as appears by the Writs in the Dorse of the Clause Rolls, for their expenses and wages) are clear proofs and evidences, that the King and his Council in the Lord's House, are the sole Judges of the elections of the Knights, Citizens, Burgesses of the Commons House; and that they themselves have no power at all to seclude or eject any persons duly elected, and sent thither by the Kings Writs, though more or less than usual, or from new erected Burroughs. And if any City or Burrough which sends Members to the Commons House by the kings Charter or usage forfeit their Charters and Privileges, for which the king seizeth them into his hands, as in 49 H. 3. he seised London's and others Liberties, and Cambridges since; he may deny to send them Writs to elect Citizens or Burgesses, till their Franchises be restored, and their Charters renewed, and deny to grant them this liberty of Election anymore if he please, proceeding from his mere grace and grant to them at first, and so to be restored out of Grace, not Justice, when forfeited by their default.
The Statute of 5 R. 2. Parl. 2. c. 4. The King willeth and commandeth, & it is assented to by the Prelates, Lord's and Commons, That all persons which shall from henceforth receive the Summons of Parliament, be he Archbishop, Bishop, Abbot, Peer, Duke, Earl, Baron, Baronet, knight of the Shire, Citizen of the City, Burgess of the Burgh, or other singular person or Commonalty, and come not at the said Summons (except he may reasonably and honestly excuse himself to our Sovereign Lord the King ) he shall be amerced▪ and otherwise punished, as of old times hath been used to be done within this Realm. Here the Excuse is to be made by the Knights, Citizens, Burgesses and Commons, as well as Lord's Spiritual and Temporal, to THE KING, not Commons House; and if they cannot excuse themselves unto him, then they are to be amerced, as of old time have been used: And that was never by the Commons House, but rather by the King, with the Lord's assent in Parliament, or by Indictment in the Kings Bench, as Sir Edward Cook himself confesses, and proves by the Cases of Segrave, St. Amand, and others, Placitae In Parliamento Dom. Regis, 33 E. 1. The Bishop of Winchesters Case, Pas. 3 E. 3. coram Rege, Rot. 9. attached for a contempt in departing from the Parliament, during its sitting, without the Kings license, and contrary to the Kings inhibition, in contempt of the King: who pleaded, that this contempt ought to be corrected and amended in Parliament by the Peers, and not else where in any inferior Court . 3 E. 3.19. Fitz Corone 161. Stanford, f. 153▪ 3 and 4 Phil. and Mar. B. R. rot. 39. & is most clear by 31 H. 6. n. 45, 46. where special fines are taxed on absent Lord's, by the Lord's assent. Therefore the Commons House cannot fine or tax their Members, as now they do, since they never did it before this act, and therefore are prohibited by it; which restrains them to ancient usage before it.
In 7 R. 2. The Lord Thomas Camoyes, a Peer of the Realm, being elected Knight of the Shire for Surrey by the Freeholders of the County, the King himself discharged him by special Writ, and commanded the Sherif to cause another fit person to be elected in his place, as I formerly proved, p. 139, 145.
I read in Thomas of Walsingham, that King Richard the 3. in the 11 year of his reign, intending to call a Parliament, summoned all the Sherifs of England to Nottingham Castle, inquiring of them, What power they could raise for him in every County against the Barons? and charging them, ut ipsi nullum Militem d • Pago vel Schira permitterent eligi, nisi quem Rex et ejus Concilium elegissent, (who it seems gave them a list of the Names of those persons they should elect and return, as the Major Generals have newly done:) Whereunto the Sherifs answered: That all the Commons favored the Lord's, neither was it in their power to raise any Army or Forces in this cause. De Militibus eligendis dixerunt, Communes velle tenere consuetudines usitatas, quae volunt, quod à Communibus Milites eligantur. Whereupon they were dismissed. Upon this the King soon after issuing out Writs to the Sherifs to elect Knights and Burgesses for the Parliament, inserted this unusual Clause into them: that they should choose such Knights, as were most fit and discreet, and in the modern debates (between the king and Lord's most indifferent: as the Writs themselves attest.
Rex Vic. Kanc. salutem: quia de avisamento Consilii nostri pro quibusdum arduis & urgentibus negotiis nos, statum et defensionem Regni nostri Angliae, ac Ecclesiae Anglicanae contingentibus, quoddam Parliamen • um nostrum apud Westm. in crastino purificationis beatae Ma • iae prox. futur. teneri Ordinavimus, et ibidem vobiscum, ac cum Praelatis, Magnatibus, & Proceribus Regni nostri Angliae, colloquium habere & tractatum; tibi praecipimus firmiter injungentes quod de Comitatu tuo duos Milites gladiis cinctos, magis idoneos et discretos, Com. praed. et in debatis modernis magis indifferentes, &c. T. R. apud Wyndesore, xvii. die Dec.
Per ipsum Regem.
But the King being soon after informed by his Council, that these Writs were contrary to the ancient form of elections, and contrary to the Liberty of the Lord's and Commons hitherto obtained; sent out new writs to all Sherifs of England to revoke and repeal this Innovating Clause, before the Elections made.
Rex Vic. Kanc 〈…〉 licet nuper per breve nostrum inter caetera tibi praec • pimus firmiter injungentes, quod de Comitatu tuo duos Milites, gladiis cinctos, magis idoneos et discret • s Com. prad. et 〈◊〉 debatis • dernis magis indifferentes eligi, 〈…〉 Parliamentum nostrum quod apud Westm. in Christ 〈◊〉 purifiecationis b • atae Mariae, pro • . futur. ten • re Ordi • avimu • : ad e • sdem idem & 〈◊〉 ve • ire facere • . Nos tamen attendent • s, dictam clausulam, in debatis modernis magis indifferentes, contra formam electionis antiquitus usitatae, ac contra libertatem Dominorum et Communitatis Regni nostri Angliae hactenus obtentam existere: Volen • esque proinde praedictos Milites libere eligi, modo et forma prout antiquitus fieri consuerit; Tibi praecimus firmiter in • ungentes, quod de Com. tuo praedicto duos milites gladiis cinctos magis idoneos & discretos Com. praedicti, prout hactenus fieri consuevit eligi, & eos ad pradictos diem & locum venire fac. dicta clausula non obstante : caeteraque omnia et singula in dicto brevi nostre contenta fac. & exequaris juxta tenorem ejusdem, dictam clausulam penitus omittens. Et habeas ibi hoc breve et aliud breve. T. R. apud Westm. primo die Jan.
Per ipsum Regem et Consillum.
Consimilia brevia diriguntur singulis Vicocomitibus per Angl. Ac carissimo Aqun • ulo R. Johanni Regi Castell. et-Legionis, Duci Lancastr. vel ejus Cancellar, in eodem Ducatu sub eadem da • a.
A clear evidence, that neither the Sherifs nor Commons house had any power to repel this new Clause, but the King himself, which here he did by his Council • Apples, before any complain against it in Parliament.
In the Parliament of 16 R. 2. n. 6. &c. The Wednesday after the Parliament began, Sir Philip Courtney, returned by the Sherif of Devon for one of the Knights for that County, came before the King in full Parliament, and said, that he understood, how certain people had accused and slandered him to the King and Lord's, as well by Bill as by mouth, of heinous matters; and therefore prayed to be discharged of the said employment, until 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 Lord's, 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 return of the said Sherif, for to counsel and do that which belonged unto his office; and af • er, 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 fame. The charge against him is expressed in the same Parliament roll, n. 13, 14. where two Petitions are preferred against him to THE KING and LORD'S IN PARLIAMENT, for putting Thomas Pontyngdon forciblyout of possession of the Ma • or of Bygeloge without just cause, and Richard Somestre out of other lands, & detaining them from them, he being so powerful in the County, that no poor man durst to sue him. Which Petitions were referred by consent in Parliament to certain Arbitrators to determine. In the Parliament of 4 H. 4. n. 19, 20, 21. upon these and other Petitions, of forcible disseisins, and for imprisoning the Abbot of Meniham in Devonshire, THE KING & LORD'S adjudged, that this Sir Philip Courtney should be bound to his good behavior, and committed to the Tower for his contempt.
From which records it is evident: First, that Members of the Commons house may be complained and petitioned against for misdemeanors, and put to answer▪ before the King and Lord's in Parliament, and there fined and judged (not before the Commons house) and that this was the ancient 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 Lord's in full Parliament, in whom the power of Judicature rests: much less then can they expel or eject any of their Members▪ by their own authority without the King and Lord's concurrent consents. No more than one Justice of peace. Committee-man, or Militia-man, can un-Justice or • move another; since Par in parem non habet Imperium, neither in civil, military, ecclesiastical nor domestical affai • . Thirdly, that the power of restoring, readmitting a • ended Member of the Commons house, belongs not to the Commons themselves, but to the King and Lord's, to whom the Commons in this case addressed themselves by petition for Courtneys readmission, after his submission of the complaints against him to the arbitrement of those Members to whom the King and Lord's referred the same.
In the Parliament of 17 Rich. 2. num. 23. It was accorded and resolved by the King and Lord's, at the Complaint, petition, 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, until 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 murder of one of their own Members, without the King and Lord's, who made this ordinance at their request.
I find this objected against King Richard the 2. in the Parliament of 1 H. 4. n. 37. That he frequently sent his Mandates to Sherifs, to return certain persons named only by himself, and not freely chosen by the people, to be knights of Shires, thereby to effect his own ends, and oppress the people with Subsidies, But yet I find not in all his reign any one Knight thus unduly returned, questioned by the Commons, or suspended the House, much less ejected by them, or by the King and Lord's upon the Commons complaint thereof unto them. A clear evidence they had then no such power to eject their Members for being unduly elected, returned, as how they use.
In the Parliament of 20 R. 2. n. 14, 15, 16, 17. The King being highly offended with the Commons for receiving Haxyes Bill, said, that the Commons thereby had committed an offense against him, his dignity and liberty, the which he willed THE LORD'S to declare the next day to the Commons: Who thereupon delivering up the Bill, came fort with before the King, showing themselves very sorrowful, declaring to him, that they meant no harm, and submitting themselves to the King herein, most humbly craved his pardon. Whereupon the Chancellor by the Kings commandment declared, That the King held them excused, and the King by mouth declared, how many ways they were bound unto him. Lo here the whole House of Commons submit themselves to the King in the House of Lord's, as Judges of them and their misdemeanors in Parliament, and crave pardon for offending him. In the Parliament of 2 H. 4. n. 45, 46. The Commons house petitioning the King, that the Act for his moderation of the Statute against Provisions might be examined, for as much as the time was recorded otherwise than was agreed by them. The King granted thereunto by protestation, that the same should be no example, where after Examination by the Bishops and Lord's, they affirmed the same to be duly entered; which the King also remembered. Whereupon the COMMONS the same day (for this their misinformation) came into the Lord's House , and kneeling before the King▪ beseeched the King to pardon them, if happily they through ignorance had or should offend him: which the King granted . Here the Bishops and Lord's are Judges of the Commons misinformation & misentry of an Act, and the King of their Offence against him in Parliament by this misinformation; which he pardons them upon their humble submission, and no doubt might have punished them for it, by the Lord's assent and advice, had he pleased. So far are they from being Judges in Parliament, that themselves may there be judged, if they therein offend, as all their Speakers usual protestations and petitions to the King when presented, evidence. That the Commons may have liberty of speech, and that if any. Members in the House of Commons, in communication and reasoning should speak more largely than of duty they ought to do, that all such offenses may be pardoned: which the King may punish if there because, un • e ••• he pardon it of record, upon the Speakers Protestation before hand.
Sir Edward Cook himself (as well as the Parliament Rolls, and experience) informs us of these particulars touching the Speakers of the Commons House in Parliament, their chiefest Member. 1. That though the Commons are to choose their own Speaker (and that by the kings special command and license to them in every Parliament since they had one, not with due • , who likewise prescribes them the time when to present him ) yet the use is, (as in the Conge de esl • yer of a Bishop) that the king doth name a discreet and learned man to them, whom the Commons do e • ect (pro form • only) because he cannot be appointed for them without their election, being their mouth, and • usted by them. 2ly. That after the Commons choice the King may refuse him. 3ly. That after he is chosen, he must be presented to the king by the Commons in the Lord • House for his approbation and confirmation in that pla • s, the Commons sending up some of their Members to acquaint the Lord's Spiritual and Temporal, that according to the Kings command they had chosen such a one their Speaker, and are ready to present him at the • me appointed▪ 4ly. That where he is thus presented, he is in disable himself for so weighty a service, and to make sut • to the King to be discharged, and a more sufficient man chosen in his place: To which I shall add, that upon this excuse the king may discharge him if he please, and command the Commons to elect another ; as King Henry the • . did discharge Sir John Popham when presented Speaker to him by the Commons, in the Parliament of 26 H. 6. n. • . upon his excuse; Whereupon William Tresham was elected in his place, presented to, and approved by the King, n. 7. 5ly. That when he is elected and approved, yet in case of sickness, and infirmity he may be removed, and another chosen and presented in his place, ( and that upon the Commons special Petition to the king in his behalf, out of his mere Grace to discharge him, and accept of another ) Thus in the Parliament of 1 H. 4. n. 62, 63, 64. Sir John Cheyney Knight, after his election and approbation was discharged, and Sir John Dorew Knight elected, presented, and admitmitted by the Kings license, to be Speaker in his room. So in the Parliament of 1 H. 5. n. n. 7, 9, 10.11. Will. Sturton Esquire, after he was chosen and allowed Speaker, was removed for grievous sickness, and John Doreward chosen in his place. At the Parliament holden 15 H. 6. n. 10, 27. Sir John Tirril knight was chosen and allowed, yet removed for grievous sickness, and William Beerell chosen in his place, and that by the Kings special license and approbation, to whom all those new Speakers were again presented by the Commons, for his royal assent thereto. 6ly. That if he be altered by his Majesty ( by assent of the Council & Lord's, as the entry is in the Parliament Rolls) then he maketh a protestation, or Petition to the king (which consisteth of three parts. ) 1. That the Commons in this Parliament may have freedom of speech, as of right and custom they have used, and all their ancient and just Privileges and Liberties allowed them (which the King usually granted with this caution) That he hoped, or, doubted not That the Members would not speak any unfitting words, or abuse this freedom and privilege ; for abuse whereof some have been committed Prisoners to the Tower by our Kings and Queens command. 2ly: That if he shall commit any Error in anything he shall deliver in the name of the Commons, no fault may be imputed to the Commons, and that he may resort again to them for declaration of his good intent, and that his Error may be pardoned. 3ly. That as often as necessity for his Majesty's service, and the good of the Commonwealth shall require, he may by direction of the House of Commons have access to his Majesty. If then the King hath the sole power and jurisdiction thus to nominate, approve, confirm, disallow, refuse, discharge and remove the very Speakers of the Commons House themselves, and not the Commons, but by and with his special license, grace, and royal assent: yea, to grant them freedom of speech, and their usual Privileges and liberties every Parliament upon their Petition, and to pardon theirs and their Speakers Errors, and that sitting in the Lord's House with their assents, then doubtless the king and Lord's alone, are the sole Judges of the Speakers, and all other Members of the Commons House, and have the sole power to judge of their undue elections, retorns, misdemeanors, breaches of Privileges, and all other matters concerning their Membership, not the Commons; And if they can neither constitute, elect nor remove their own Speaker for sickness, or any other cause, without the kings privity and consent declared in the House of Lord's; much less can they suspend, seclude, or eject any Member out of the House, when chosen and returned by the Freeholders, Citizens, or Burgesses, as their Attorny or Trustee in equal power with themselves, without the Kings or Lord's consents, for any pretext of unfitness or undue election. And if the king (as Sir Edward Cook grants, and these presidents prove) may discharge the Speaker from his Office for grievous sickness and inability to discharge it; I mak no question but he may likewise, upon the like Petition of the Commons or Speaker, discharge him of his attendance in the House, or any other Member for the self same reason, and grant a Writ to elect another able and fitting person in his place, according to the opinion of 38 H. 8. Brooks Parliament, 7. and Crompton in his Jurisdiction of Courts, f. 16. approved by the whole House of Commons, and accordingly practiced in 38 H. 8. against Sir Edward Cooks bare opinion (without reason) to the contrary.
In the Parliament holden at Westminster 5 H. 4. rot. Parl. n. 38. Thomas Thorp his Case, Item▪ because that the Writ of Summons of Parliament returned by the Sherif of Roteland was not sufficiently nor duly returned as the Commons conceived▪ the said Commons prayed our Lord the King, and the Lord's in Parliament, that this matter might be duly examined in Parliament, and that in case there • shall be default found in this matter, that such a punishment might be inflicted, which might become exemplary to others to offend again in the like manner: Whereupon 〈◊〉 said Lord the King, in full Parliament, commanded the Lord's in Parliament to examine the said matter, and to do therein as to them should seem best in their discretions. And thereupon the said Lord's caused to come before them in Parliament, as well the said Sherifs, at William Oneby, who was returned by the said Sherif for one of the Knights of the said County, and Thomas Thorp, who was elected in full County to be one of the Knights of the said Shire, for the said Parliament, and not returned by the said Sherif. And the said parties being duly examined, and their reasons well considered, in the said Parliament, it was agreed by the said Lord's, that because the said Sherif had not made a sufficien • return 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 County for the Parliament: and moreover that the said Sherif for this default shall be discharged of his Office, any committed Prisoner to the Flee • , and that he should make sins and ransom at the Kings pleasures. • o • here the Lord's in Parliament, at the Commons request, and by the Kings command, examine and give judgment in case of an undue election, and retorn, even without the Commons.
In this same Parliament Richard Cheddar Esquire, a menial servant and attendant on Sir Thomas Brook, chosen one of the Knights to serve in Parliament for the County of Somerset, was horribly beaten, wounded, blemished and maimed by one John Savage: Whereupon the Commons complained thereof to the King and Lord's, petitioning them for redress both in his particular case for the present, and all others of that nature for the future, that they might make fine at the Kings 〈◊〉 and render double damages to the party maimed, whether Members of theirs Servants. Whereupon, it was ordained and established by the King and Lord's; that for as 〈…〉 deed was done within the time of the said Parliament, that Proclamation be made where it was done, that the said John appear, and yield himself in the Kings Bench, within a quarter of a year after the Proclamation made: and if he do not, he shall be attainted of the said deed, and pay to the party grieved his double damages, to be taxed by the Judges of the said Bench for the time being, or by Enquest, if need be, and also he shall make fine and ransom at the kings will (which was accordingly executed, as appears by 8 H. 4. f. 13, 14.) And moreover, it is accorded in the same Parliament, that likewise it be done in time to come in case like. By which Petition and Act it is most apparent, 1. That the King and Lord's have the sole power of judging and punishing the breaches of Privilege of Parliament, by batteries, wounding, or imprisonment, and that both in the cases of Knights, Citizens, and Burgesses, and of their menial servants in such and the like cases. 2ly. That this Act gives the Commons no power at all to punish any man for breach of privilege in like case; but only prescribes a certain remedy for time to come, by imprisonment, action, double damages, fine and ransom at the kings pleasure in the Kings Bench; not Commons House, or Parliament, who are not fit to be troubled with such particular cases of privileges, which would interrupt the more public affairs. Hence THE KING willing to provide for the ease and tranquility of them that came to his Parliaments and Councils by his commandment, hath ordained and established (upon the Commons Petition) by the Statute of 11 H. 6. c. 13. That the self same remedy, proceeding, damages and punishment shall be had in the Kings Bench, (not Commons House or Parliament) (as was prescribed in 5 H. 4. c. 6.) against any person that shall do any assault or affray to any Lord Spiritual or Temporal, Knight of the Shire, Citizen, or Burgess coming to the Kings Parliament or Council by his command: How then the Commons can judge or determine such violation of privileges, now against these Statutes and presidents, and create themselves Judges of them, transcends both my Law and reason.
In the Parliament of 7 H. 4. (as I find in a special note, though not in the Parliament Roll) Sir John Tibetot the Speaker, prayed, que plest le Roy & Seigniors, That it would please THE KING AND LORD'S, that Robert Clifford, companion of Richard Chiderough, chosen knights for the County of Kent, might appear for them both, and do all in both their names, as if both of them were present in Parliament, which the king and Lord's assented to.
In the Parliaments of 8 H. 4. n. 83. & 139. and of 11 H. 4. n. 54. Upon Petitions and complaints of the Commons to the king and Lord's, there were two Statutes made to prevent the abuses and false retorns of Sherifs, touching the Elections of knights of Shires, & to inflict penalties on them by a Law (which formerly were arbitrary at the kings and Lord's discretion) 7 H. 4. c. 15. and 11 H. 4. c. 1. The penalty inflicted by these Acts on the Sherif, for a false return, contrary to these Acts, is only 100 l. fine to the king, and such undue retorns are from thenceforth to be examined and tried (not by the Commons alone by information without Oath as now, but) by the Justices assigned to take assizes, and that by Enquest and due examination upon trial before the said Justices ; which is likewise afterwards ratified by the Statutes of 6 H. 6. c. 4. 8 H. 6. c. 7. 32 H. 6. c. 15. whereof if the Sherif be found guilty, he shall forfeit 100 l. to the king, and the knights of Counties unduly returned, shall lose their wages of the Parliament, of old time accustoned (not be turned out by a Committee of Privileges, and others chosen in their places by the Commons Order, as now:) And the Statutes of 1 H. 5. c, 1. 6 H. 6. c. 4. 8 H. 6. c. 7. 12 H. 6. c. 2. 32 H. 6.15. touching elections of knights, Citizens and Burgesses made since the former, do not alter this Law, nor give the House of Commons the least power or authority to judge or determine the legality or illegality of any elections; but leave this to the King and Lord's to redress, as at first, before their making, and give the knights duly chosen, but not returned 100 l. damages against the Sherif, and Citizens and Burgesses 40 l. against Mayors and Baylifs who make false returns, by way of action of Debt in the kings Courts at Westminster, where the parties must sue for relief, or in the Starchamber before the Kings Lord's and Council, as in Bronkers case, Trin. 1. Eliz. not in the Commons house, as these Statutes and presidents in our Law-books, Dyer, f. 113.168. Plowden, f. 118. to 131. Old Book of Eniries, f. 446, 447. resolve; How then the Commons are now become sole Judges of all false returns and elections, and that per legem et consuetudinem Parliamenti, against all these Acts and presidents, let Sir Edward Cook and others resolve me, and the intelligent when they are able: not by the objected late arbitrary presidents, which are of no value; but by ancient usage and Law of our Parliaments and solid reason, which cannot be produced for to justify these late Innovations and extravagances.
It is most true, that in the cases of undue elections, and breaches of privilege of the Commons house Members or Servants, the King and Lord's were anciently sole Judges, (not the Commons in any one case) and that upon the Commons own Petitions, as the premises evidence, and I shall fully manifest by these ensuing punctual presidents.
In the Parliament of 8 H. 6. n. 39. The Commons petitioned the King for a Law to be made, to prevent the manifold tumults, uproars at, and disorders in the election of knights of the shire by the vulgar rabble, and meaner sort of people, of small or no estate, (most busy and tumultuous in them, having then a voice,) that the King by advice and assent of the Lord's Spiritual and Temporal, would seclude all from having voices at such elections for the future but freeholders, who held 40 s. freehold by the year above all reprisals (more than 40 l. a year now) or upwards ▪ Which the King and Lord's assented to and the Statute of 8 H. 6. c. 7. was hereupon made agreeable to this petition, with that of 10 H. 6 c. 2. by like Petition in pursuance of it. In this very Parliament of 8 H. 6. rot. parl. n. 57. One William Lake, servant to William Mildred a Burgess of London, was taken in execution for a Debt, and committed Prisoner to the Fleet, contrary to the privilege of the Commons house; whereupon the Commons petitioned the King, that by the advice and assent of the Lord's Spiritual and Temporal, at the special request of the Commons, he might be enlarged; which the King and Lord's assenting unto, gave order for his release, and authorized the Chancellor to appoint certain Commissioners to take him again in Execution, after the Parliament ended. The Commons not then claiming the least power or jurisdiction to enlarge him, or to fine or imprison those who took him in Execution, as of late times they have done. And in this Parliament, upon the petition and supplication of the Prelates and Clergy, n. 32. the King, by the assent and advice of the Lord's, enacted the Statute of 8 H. 6. c. 1. That the Clergy and their Attendants called to the Convocation by the Kings writ, should have and enjoy forever hereafter the same liberty and immunity in going, coming and tarrying, as the Great men and Commonalty of England called, or to be called to the Kings Parliaments have used and enjoyed ; they complaining to the king, that they and their servants coming to the Convocation, were oftentimes, and commonly arrested, molested and inquieted. Which they had no power to redress, but only the King and Lord's, upon their complaints thereof.
In the Parliament of 18 H. 6. n. 13. It was shown to the King and the Lord's Spiritual & Temporal, that Gilbert Hore, Sherif of the County of Cambridge, upon the kings writ directed to him to choose 2. knights for that shire, & had made no return of any knights for that County, for certain reasons therein expressed. Whereupon the King by advice and assent of the Lord's Spiritual and Temporal, (not the Commons house alone, as now, nor yet jointly with them) ordered, that a New writ for electing 2. knights for that County should be directed to him; and that he should make proclamation, that no person should come to the election with arms, or arrayed in warlike manner in disturbance of the said election, and breach of the kings peace. A memorable president of the Kings and Lord's Jurisdiction, even in point of elections.
In the Parliament of 23 H. 6. n. 41. The Commons petitioned the king, that by the advice and assent of the Lord's Spiritual and Temporal, and at their special request, it might be enacted; that every Member of the Lord's and Commons house, who should have any assault or affray made upon him, being at the Parliament, or going to or coming from thence might have the like remedy, at Sir Thomas Parr knight had given him in this Parliament : (to wit, upon petition of the Commons in his behalf to the King and Lord's, being the same as was enacted in Chedders case, & 11 H. 6. c. 11. before.) Whereunto the king answered, The Statutes therefore made shall be observed.
In the Parliament of 31 H. 6. rot. parl. n. 25, 26, 27, 28. we have this memorable famous case touching privilege of Parliament, in their very Speakers own case, resolved by the Lord's. Thomas Thorp chief Baron, was chosen Speaker of the Parliament, after his election, and before the Parliament (which was prorogued) sat, he 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 Lord's spiritual and temporal sitting in Parliament, desiring that they might enjoy all their ancient and accustomed privileges, in being free from arrests, and propounded the case of Thomas Thorp their Speaker to them, desiring his enlargement; whereupon the said Lord's spiritual and temporal, not intending to hurt or impeach the privilege of the Commons, but equally after the course 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 virtue of the said privilege 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 that question, for it hath not been used aforetime, that the Justices should in any wise determine the privilege of this high Court of Parliament; 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 their privilege belongeth to the Lord's of the Parliament, and not to the Justices : But as for declaration of proceedings in the lower Courts in such cases, as writs of Supersedoas of Privilege of Parliament be brought and delivered, the said chief Justice said, that there be many and divers Supersedeas of privileges of Parliament brought into the Courts ; but there is no general Supersedeas brought to furcease all Processes, for if there should be, it should seem that this high Court of Parliament, that ministereth all Justice and equity, should let the process of the common Laws, and so it should put the party plainant without remedy, for so much as 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 freedom and Liberty freely to attend upon the Parliament. After which answer and Declaration it was thoroughly agreed, assented and concluded by the Lord's Spiritual and Temporal, that the said Thomas, according to the Law▪ should remain still in prison for the causes abovesaid, the privilege 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 come 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 premi • es, for as much as they were matters of Law, by the commandment of the Lord's, were opened and declared to the Commons by the mouth of Walter Moyle, one of the kings Sergeants at Law, in the presence of the Bishop of Eli, accompanied with other Lord's in notable number: and there it was commanded and charged to the said Commons by the said Bishop of Eli, 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 take good and effectual conclusion and end. Whereupon the Commons accordingly elected Thomas Charlton knight, for their Speaker the next day, and acquainted the Lord's therewith, and desired the kings approbation of their choice, which was accorded unto by the king, by assent of the Lord's. Lo here 1. the Lord's Spiritual and Temporal, are the sole Judges of the privilege of the very Speaker of the House of Commons, who is here adjudged to remain in execution, notwithstanding their petition for his enlargement. 2ly, The whole House of Commons could not then send for, nor yet enlarge their own Speaker when imprisoned, but are enforced to petition the King and Lord's for his enlargement. 3ly, The Lord's, in the kings name, command the Commons to choose and present another Speaker in his room, and that with all speed; which they accordingly did, and then present him to the King and Lord's, for their approbation, who allowed of their choice.
In the Parliament of 38 H. 6. n. 35. There were divers Knights of Counties, Citizens and Burgesses named, returned, and accepted, some of them without any due or free election some of them without any election at all; against the course of the Kings Laws, and the Liberties of the Commons of the Realm, by virtue of the Kings Letters, without any other election, and by the means and labors of divers seditious and evil disposed persons, only to destroy certain of the great faithful Lord's and Nobles, and other faithful liege people of the Realm, out of hatred, malice, greedy and insatiable covetousness, to gain their Lands, Inheritances, Possessions, Offices, and goods, as the Statute of 39 H. 6. c. 1. relates. The Commons were so far from having power to exclude, or confirm their elections themselves; that they petitioned the King, by advise and assent of the Lord's, That all such Knights, Citizens and Burgesses as were thus returned to this Parliament by virtue of the Kings Letters, without any other election, should be good, and that no Sherif for returning them might incur the pain therefore provided by the Statute of 23 H. 6. c. 15. Which the King and Lord's assented to at their request.
In the Parliament of 39 H. 6. n. 9. Walter Clerk, one of the Burgesses of Parliament for Chippenham, was arrested and imprisoned in the Fleet for divers debts due to the King and others, upon a Capias Uilagatum ; whereupon the Commons complained thereof to the King and Lord's by Petition, and desired his release, and rendered them an Act of Parliament ready drawn for that purpose; to which Petition and Bill of theirs, the King by the assent of the Lord's Spiritual and Temporal assented; And thereupon he was freed. Not by the Commons power, order, or judgment, but by the Kings and Lord's advice and assents.
William Hyde, a Burgess of Chippenham in Wiltshire, being taken in Execution, upon a Capias ad satisfaciendum, and imprisoned in the kings Bench during the Parliament, contrary to his privilege, the Commons thereupon by a Petition praved the King, that by advice and assent of the Lord's Spiritual and Temporal, he might be delivered for the present by a Writ of privilege out of the Chancery ; which the King by the advice and assent of the Lord's, granted, saving the right of his Prosecutors, to have execution upon him again after the Parliament ended. 14 E. 4. n. 55.
In the Parliament of 17 E. 4. n. 36. John at-Will, a Burgess for Exeter, was condemned in the Exchequer upon 8. several Informations during the Parliament, at the prosecution of John Taylor of the same Town; upon complaint thereof by the Commons to the King and Lord's in Parliament by Petition, the King by advice and assent of the Lord's Spiritual and Temporal, ordered, that he should have as many Supersedeas against the said Judgments and Informations as he pleased, until his coming home from the Parliament.
In these last recited cases, the Commons had no power at all to deliver or enlarge their own Members when imprisoned (as of late years they have practiced) but always petitioned to the King and Lord's for their release and relief; who thereupon released and relieved them against the breaches of their privileges, when they saw good cause. Which cases I have examined by, and transcribed out of the Parliament Rolls themselves in the Tower, and not taken upon trust, or the Abridgements of them, which leave out the main ingredients; the Commons Petitions to, and advice and assent of the King and Lord's, expressed in the Rolls at large.
Richard Strode Gentleman, one of the Burgesses of Parliament for the Burge of Plympton in Devonshire, in the Parliament of 4 H. 8. for agreeing with the Commons house in putting out Bills against certain abuses of the Tinners, being a Tinner himself, by the malice of John Furse Tinner, Under-Steward of the Stann • ries, and his misinformation, that the said Richard Str • de at the last Parliament held • n at Westminster, would have avoided, and utterly destroyed all Liberties, Privileges and Franchises concerning the Scanne • ies, was upon 4. Bills thereof made by the said Furse presented and found guilty of the premises in 4. several Stannery Courts and condemned to forfeit 40 l. on every Bill to the King, upon an Act and Ordinance made by the Tinners, to which he was never warned nor called to make answer, contrary to all Laws, right reason and good conscience: And one John Agui •• iam begging 20 l. of the said forfeiture from the King, caused the said Richard to be taken and imprisoned in Lidford Castle in a dungeon and deep pit under ground, where he was fed only with bread and water, to the peril of his life, and was to have irons laid upon him. Upon which he petitioned the Parliament for remedy, and that it might be ordained and enacted by the King▪ the Lord's Spiritual and Temporal, that the condemnations against him for the said 160 l. in the Stanneries, and every parcel thereof, and judgments and executions had, or to be had for the premises, might be utterly void, and of none effect against him▪ which was done for him accordingly▪ And moreover it was enacted, That all suits, accusations, condemnations, executions, fines, amerciameuts, punishments, corrections, grants, charges, and impositions, put or had, or hereafter to be put or had upon the said Richard, & to every other person or persons that were in this Parliament, or that of any Parliament hereafter shall be, for any Bill, speaking, reasoning, or declaring of any matter or matters concerning the Parliament to be communed or treated of, be utterly void, and of none effect: And that any person vexed or troubled, or otherwise charged for any causes as aforesaid, shall have an action of the case against every person or persons so vexing or troubling him contrary to this Ordinance, and recover treble damages and costs: And that no protection Essoign or wager of Law, shall in the said action in any wise be admi • red nor received; as you may read in the Statutes at large, 4 H. 8. ch. 8. entitled, an act concerning Richard Strode: The Commons themselves being unable to relieve him in this high breach of privilege, but by a petition to the King and Lord's, and a special Act of Parliament made for him.
In the Parliament of 34 H. 8. there fell out this famous case, thus at large recorded by Holinshed and Crompton out of him.
In the Lent season, whilst the Parliament yet continued, one George Ferrers Gentleman, servant to the king, being elected a Burgess for the Town of Plimmouth, in the County of Devon, in going to the Parliament House was arrested in London by a Proces out of the Kings Bench, at the suit of one White, for the sum of two hundred marks or thereabouts, wherein he was late afore condemned as a surety for the debt of one Welden of Salisbury, which arrest being signified to Sir Thomas Moile knight, then Speaker of the Parliament, and to the knights and Burgesses there, order was taken, that the Serjeant of the Parliament, called S. I. should forthwith repair to the Counter in Bredstreet, whither the said Ferrers was carried, & there to demand delivery of the Prisoner. Therupon the Serjeant as he had in charge went to the Counter, and declared to the Clerks there, what he had in commandment; but they and other Officers of the City were so far from obeying the said commandment, as after many stout words, they forcibly resisted the said Serjeant, whereof ensued a fray within the Counter Gates, between the said Ferrers and the said Officers, not without hurt of either part, so that the said Serjeant was driven to defend himself with his mace of arms, and had the Crown thereof broken by bearing off a stroke, and his man stricken down. During this brawl, the Sherifs of London, called Rowland Hill, and H. Suckley came thither, to whom the Serjeant complained of this injury, and required of them the delivery of the said Burgess, as afore; but they bearing with their Officers, made little account either of his complaint, or of his message, rejecting the same contemptuously, with much proud language, so as the Serjeant was forced to return without the Prisoner, and finding the Speaker, and all the knights and Burgesses set in their places, declared unto them the whole cause as it fell out: who took the same in so ill part, that they altogether (of whom there were not a few, as well of the Kings privy Counsel, as also of his privy Chamber) would sit no longer without their Burgess, but rose up wholly and repaired to the Upper House, where the whole case was declared by the mouth of the Speaker, before Sir T. Audeley knight, then Lord Chancellor of England, and all the Lord's and Judges there assembled: who judging the contempt to be very great, referred the punishment thereof to the order of the Common house. They returning to their places again, upon new debate of the Case, took order, that their Serjeant should eftsoon repair to the Sherifs of London, and require delivery of the said Burgess, without any writ • warrant had for the same, but only as afore. Albeit the Lord Chancellor offered there to grant a Writ, which they of the Common House refused, being of a clear opinion, that all commandments and other acts proceeding from the nether House, were to be done and executed by their Serjeant without Writ, only by show of his Mace, which was his warrant. But before the Serjeants return into London, the Sherifs having intelligence how heinously the matter was taken, became somewhat more mild, so as upon the said second demand, they delivered the Prisoner without any denial. But the Serjeant having then further in commandment from those of the nether House, charged the said Sherifs to appear personally on the morrow, by 8 of the clock before the Speaker in the nether House, and to bring thither the Clerks of the Counter, and such other of their Officers as were parties to the said affray; and in like manner to take into his custody the said White, which wittingly procured the said arrest, in contempt of the privilege of the Parliament; which commandment being done by the said Serjeant accordingly, on the morrow, the two Sherifs, with one of the Clerks of the Counter (which was the chief occasion of the said affray) together with the said White appeared in the Common House: where the Speaker charging them with their contempt and misdemeanor aforesaid, they were compelled to make immediate answer, without being admitted to any counsel; Albeit Sir Ro. Cholmley then Recorder of L. and other the Counsel of the City then present, offered to speak in the cause, which were all put to silence, and none suffered to speak, but the parties themselves; whereupon in the conclusion the said Sherifs and the same White, were committed to the Tower of London, and the said Clerk (which was the occasion of the fray) to a place there called Little Base, and the Officers of L. which did the arrest, called Tailer, with 4 Officers more to Newgate, where they remained from the 28 until the 30 of March, and then they were delivered, not without humble suit made by the Mayor of L. and other their friends. And forasmuch as the said Ferrers being in execution upon • condemnation of debt and set a • large by privilege of Parliament, was not by Law • o be brought again into execution, and so the party without remedy for his debt, as well against him as his principal debtor, after long • ebate of the same by the space of 9 or 10 days together; at last they resolved upon an Act of Parliament to be made, and to revive the execution of the said debt against the said Welden, which was principal debtor, and to discharge the said Ferrers. But before this came to pass the Commons House was divided upon the question: but in conclusion, the Act passed for the said Ferrers, who won by 14 voices. The King being then advertised of all this proceeding▪ called immediately before him the Lord Chancellor of England and his Judges, with the Speaker of the Parliament, and other the gravest persons of the nether House, to whom he declared his opinion to this effect. First, commending their wisdom in maintaining the privileges of the House (which he would not have to be infringed in any point) alleged, that he being head of the Parliament, and attending in his own person upon the business thereof, ought in reason, to have privilege for him and all his Servants attending there upon him. So that if the said Ferrers had been no Burgess, but only his servant, that in respect thereof he was to have the privilege as well as any other. For I understand (quoth he) that you not only for your own persons, but also for your necessary servants, even to your Cooks and Horsekeepers, enjoy the said privilege, insomuch as my Lord Chancellor here present, hath informed us, that he being Speaker of the Parliament, the Cook of the Temple was arrested in L. and in execution upon a Statute of the staple: And forasmuch as the said Cook, during the Parliament served the Speaker, in that office, he was taken out of execution by the privilege of the Parliament; and further we be informed by our Judges, that we at no time stand so highly in our estate Royal as in the time of Parliament; wherein we as Head, and you as Members, are conjoined and knit together into one body politick, so as whatsoever offense or injury (during that time) is offered to the meanest Member of the House, is to be judged, as done against our person, and the whole Court of Parliament: which prerogative of the Court is so great (as our learned Counsel informeth us) as all Acts and Processes coming out of any other inferior Courts, must for the tiime cease and give place to the highest. And touching the party it was a great presumption in him, knowing our servant to be one of this House, and being warned thereof before, would nevertheless prosecute this matter out of time, and therefore was well worthy to have lost his debt, which I would not wish; and thereforefore do commend your equity, that having lost the same by Law, have restored him to the same against him who was his debtor; and this may be a good example to other, not to attempt anything against the privilege of this Court, but to take the time better; Whereupon Sir Edward Montague then Lord chief Justice, very gravely declared his opinion, confirming by divers reasons all that the King had said, which was assented unto by all the residue, none speaking to the contrary. The Act indeed passed not the higher House; for the Lord's had not time to consider of it by reason of the dissolution of the Parliament.
From this President, I shall observe, 1. That this is the first President, that the Commons house ever sent their Serjeant to demand a Member imprisoned, without first acquainting the King and Lord's: whereupon the Serjeant was thus resisted, affronted. 2ly, That upon the Serjeants report of this resistance and contempt, the Commons house did not undertake to punish it themselves, though there were many of the Kings privy Council then of and in it; but according to former presidents, went and complained thereof in rhe Lord's house; praying them to redress and punish it. 3ly, That all the Lord's and Judges there assembled, judged the contempt to be very great. 4ly, That thereupon (being busied with other weighty public affairs) they by special order, referred the examination & punishment thereof to the Commons House. 5ly. That thereupon the Commons by virtue of this special reference from the Lord's, (not by their own inherent authority or Jurisdiction) sent for the delinquent parties, examined the contempt, imprisoned the Sherifs of London, and White in the Tower, and the under Officers in Newgate. 6ly. That afterwards they acquainted the King and Lord's with their proceedings, who approved and commended the same. 7ly, That they would have confirmed part of their judgment by an Act, to discharge Ferrers of the execution, and not to revive it after the Parliament, which passed but by 14. voices; and never passed the Lord's house, who would not assent thereto. All which particulars unanswerably evidence, that the judgment and punishment of contempts and breaches of privilege of the Commons house and their Members, belong wholly and solely to the Lord's, not to the Commons house at all; unless by special order and reference from the Lord's to the House of Commons, who are to be informed of their proceedings and censures upon such a reference, and to ratify them by their assents, or some Act of Parliament. Therefore the conclusion of Crompton from this president, and Dyer, f. 60. (which hath not a syllable to this effect) That any Knight, Burgess, Baron of the 5. Ports, or others called to the Parliament of the King, shall have privilege of Parliament during the Parliament or Session of it: so that he who arrests any of them during that term shall be imprisoned in the Tower by the Nether House of which he is, and shall be put to a fine, and the Keeper also if he will not deliver him, when the Serjeant at Arms shall come for him by command of the House; is but a me • r mistake. And the late objected Presidents, have been grounded only upon his Authority, and the mistaking or misapplying of Ferrers case,
W. Trewynnard, a Burgess of Parliament in 35 H. 8. (the very next year after this case of Ferrers ) was taken in execution upon an Exigent, grounded on a Capias ad sa • isfaciendum, by the Sherif of Cornwall ; upon a complaint thereof to the King and Lord's in Parliament, there issued a Writ of Privilege in the Kings name during the Sessions of Parliament, to R. Chamond, then Sherif of Cornwall, to release him, reciting that he was a Burgess, and likewise the Custom of the privilege of Parliament: whereupon he was released; the personal attendance of every Member being so necessary in Parliament, that he ought not to be absent for any business, because he is a necessary Member; and therefore ought to be privileged from arrests. Now the Parliament consisting of 3. parts: to wi • of the King as chief Head, the Lord's, the chief and principal Members of the Body, and the Commons, the Inferior Members, making up one body of Parliament; (as Chief Justice Dyer there resolves) these inferior Members, have no means to relieve themselves when their persons are arrested, but by complaint to the Head, or Chief and principal Members of this body; as in all other Corporations, where the Mayor, Recorder, Aldermen, Justices, and chief Officers are the only Judges, not the Commons, to hear and determine all injuries done to any Commoner.
Pasch. 1. & 2. Phil. & Mariae, Rot. 16. B.R. The Attorney General in the Kings and Queens name, exhibited an Information against 34. Knights, Citizens & Burgesses of the Commons House, for absenting themselves, and departing from the Parliament then held, without the Kings and Queens special license, contrary to their Prohibition, and in manifest contempt of the said King, Queen and Parliament, and to the great detriment of the state of the Commonwealth of this Realm, and the ill example of others. The Great Lawyer Edmond Plowden being one, pleaded he was present at the Parl. from the very beginning of it to the end, and that he departed not from it; which he was ready to verify as the Court should direct, and prayed judgment to be discharged. Edward Harford another of them, pleaded a special license to depart, whereupon his prosecution was stayed; but so that Process • ill issued against the rest. The Commons house therefore i • Q. Mary's reign, were not re • ted sole Judges of their own Members in cases of departure from Parliament in contempt, to the public prejudice, and ill example of others, as now they deem themselves, by Sir Edward Cooks new-invented Law and Custom of Parliaments.
In the Parliament of 18 Eliz. Feb. 22. A report was made to the Commons House, by a Committee appointed to consider how Mr. Halls man, then a Member, and imprisoned against his privilege, might be released; that the Committee found no President for setting at large by the Mace, any person in arrest, but only by Writ of Privilege : And that by divers presidents and records perused by the Committee, every Knights, Citizen or Burgess, requiring privilege for his Servant, hath used to take a Corporal O • th before the Lord Chancellor, that the pa • ty for whom such Writ is prayed, came up with him, and was his servant at the time of the arrest made. Whereupon Mr. Hall was moved to repair to the Lord Keeper, and make such Oath, which he did, and then had a Writ of privilege.
In the Parliament of 23 Eliz. 21 Jan. Saturday; Mr. Paul Wentworth, moved for a public Fast, and for a Sermon every morning at 7. a clock before the House sat : The House upon debate were divided about the Fast; 115. were for, and 100. against it: It was thereupon ordered, That as many of the House as conveniently could, should on Sunday fortnight after assemble and meet together in the Temple Church, there to hear preaching, and join together in prayer, with humiliation and fasting, for the assistance of God's spirit in all their consultations during this Parliament, and for the preservation of the Queens Majesty and her Realm: and the Preachers to be appointed by the privy Council that were of the House, that they may be discreet, not meddling with Innovation or unquietness. This Order being made by the Commons alone, without the Lord's and Queens privities & assents, the Queen being informed thereof, sent a Message to the House by Master Vice-chamberlain, a Member of it; That her Highness had great admiration of the rashness of this House in committing such an apparent contempt of her express command (not to meddle with her person, the State, or Church-government) as to put in execution such an Innovation, without her privity or pleasure first known. Thereupon the Vice-chamberlain moved the House, to make humble submission to her Majesty, acknowledging the said offense and contempt, craving the remission of the same, with a full purpose, to forbear the committing of the like hereafter. Upon which, by consent of the WHOLE HOUSE, Mr. Vice-chamberlain carried this their submission to her Majesty: as being the Judge and punisher of their misdemeanors even in the House itself, though carried by majority of Voices.
In the Parliament of 28 Eliz. the Commons questioning the choosing and returning of the knights of the Shire for Norfolk, the Queen said: She was sorry the Commons meddled therewith▪ being a thing impertinent for that House to deal withal: it belonging only to the Office of the Lord Chancellor, from whom the Writs issue, and to whom they are returned.
In the Parliament of 35 Eliz. Mr. Peter Wentworth, and Sir Henry Bromley, delivered a petition to the Lord Keeper, desiring the Lord's of the Upper House to be suppliants with them of the Lower House unto her Majesty, for intayling the succession of the Crown; whereof a Bill was ready drawn by them. The Queen being highly displeased therewith, as contrary to her former strict command, charged the LORD'S of her COUNCIL to call the parties before them, which they did; and after Speech with them commanded them to forbear the Parliament, and not to go out of their lodgings: after which Mr. Wentworth was committed by them to the Tower, Sir Henry Bromley, with Mr. Richard Stevens, and Mr. Welch, (to whom Sir Henry had imparted the matter) were committed to the Fleet, sitting the Parliament. And when Mr. Wr • th moved in the House, that they might be humble suitors to her Majesty, that she would be pleased to set at liberty those Members of the House that were restrained ; It was answered by all the Privy Counselors there present: That her Majesty committed him for causes best known to herself, and to press her Highness with this suit, would but hinder them whose good as fought • That the House must not call the Queen to account for what she doth of her royal Authority: That the causes for which they are restrained, may be high and dangerous: That her Majesty liketh no such questions, neither doth it become the House to search into these matters. In the same Parliament, M. Morrice, Attorny of the Court of Wards, by a Serjeant at Arms was taken out of the Commons House, Febr. 28. and committed to prison by the Queens command; for delivering in a Bill against the abuses of the Bishops, on Tuesday Febr. 27. against which many Members spake, that it should not be read: The Queen hearing of it, sent for Sir Edward Cook, then Speaker, the same day, giving him in command with her own mouth to signify to the House, her dislike of the said Bill preferred by Mr. Morrice, and charging him upon his Allegiance, if any such Bill he exhibited, not to read it. Adding, It is in me and my power to call Parliaments, it is in my power to end and determine them: it is in my power to assent or dissent to anything done in Parliament. Lo here several Members of the Commons House, imprisoned by the Queens command by the Lord's of her Council, for disobeying her express commands in her Speech, in meddling in matters of State and Ecclesiastical affairs, which she had forbidden them to do: So far was the Commons house then from being the Judges, or sole Judges of their own Members, privileges, speeches, or actions in the House itself, even in this good Queens late reign of blessed memory.
In the same Parliament of 35 Eliz. when Sir Edward 〈◊〉 was Speaker of the Commons House, there fell out a question in the Commons House about the Amendment of a mistake in the 〈◊〉 of the Burgess of Southwark: and after long debate it was resolved▪ that the House could not amend it, but the L • . Keeper in Chancery, • here the return was of record, if he thought it amendable by Law; and that Master Speaker should wait upon the Lord Keeper about it, which he did; who advised with the Judges concerning it, as appears by the Journal.
In the same Parliament, Thomas Fitz-Herbert of Staffordshire was elected a Burgess of Parliament, and two hours after, before the Indenture returned, the Sherif took him prisoner upon a Capias Utlagatum ; Whereupon he petitioned the House, that he might have a Writ of Privilege and be enlarged. After many days debate and Arguments of this case in the House by sundry Lawyers, and Sir Edward Cook, then Speaker; it was agreed; That no Writ of Privilege 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 Judges should be advised with, and determine it, not the House : And at last he was outed of his privilege by the Houses resolution,
These forecited presidents in all ages will sufficiently prove the late objected presidents, for the Commons sole Judicial Authority and Jurisdiction in cases of Privilege and Elections, and the suspending, ejecting, fining, secluding, imprisoning their own Members, and such who violate their privileges, or make false returns; to be a mere late Groundless Innovation, if not Usurpation, upon the King, House of Peers, and Chancellors of England, no ways grounded on the Law and custom of Parliaments, as Sir Edward Cook mistakes, but point-blank against them both, and that the Statutes concerning Elections, and attendance or absence of Knights and Burgesses, as 5 R. 2. c. 4. 7 H. 4. c. 15. 11 H. 4. c. 1. 1 H. 5. c. 1. 6 H. 6. c. 4. 8 H. 6. c. 7. 10 H. 6. c. 2. 11 H. 6. c. 11. 23 H. 6. c. 15. which cite Our Lord the King willeth, commandeth and Ordaineth, or hath Ordained, by advice and assent of the Lord's Spiritual and Temporal, upon complaint, or at the special request of the Commons: (to show that they are only Petitioners, not Judges, nor Ordainers in all or any of them,) give them not the least title of Jurisdiction in cases of elections, or privileges. And therefore, according to the resolution of all the Judges, Hill. 2. Jacobi, in the case of Penal Statutes, Cook 7 Rep. f. 37. That the prosecution of penal Statutes cannot by law be granted to any, nor be prosecuted or executed in any other order or manner of proceeding, than by the Acts themselves is prescribed and provided ; the Commons cannot, against the Letter and provision of all those Acts, be Judges of them in any other manner or order than they prescribe.
As for their proceedings in the Committee of Privileges touching Elections, since they have interposed in them as they have been very irregular, illegal, in respect all the Witnesses they examine touching them are unsworn, and give their testimonies without Oath, upon which they Ground their Votes: So they are for the most part very partial, and for that cause it is usually styled, The Committee of Affections ; he that can make the most Friends and strongest party, being sure to carry the election for the most part, both at the Committee and in the House, though never so foul, as I could instance in many cases of late times; and more especially in the case of the Election of Cirencester 1647. too foul to blot my paper with.
For their suspending, secluding, ejecting their own Members, I have sufficiently manifested its illegality long since in my Ardua Regni ; being a late dangerous president began within our memories, the sad effects and consequences where of we now discern by these dangerous gradations. 1. The Commons began to seclude one another upon pretence of undue elections and retornes in Queen Elizabeth's reign, but not before, which they have since continued, and that rather to strengthen or weaken a party in the House, then to rectify undue elections and retorns, which a good Act would easily do. 2ly. In the later and last Parliaments of King Charles they began to seclude Projectors ; though duly elected. 3ly. They proceeded to suspend and eject such who were royallists, and adhered to the late Kings party. 4ly. They proceeded to imprison and eject those Members whom the Army Offices impeached or disliked as opposite to their designs. 5ly. The Minority of the House at last, by the power of the Army, secured, secluded, expelled the Majority, and 50 or 60. near 400 Members, and made themselves the Commons House without them. 6ly. They then proceeded to vote down and seclude both King and House of Lord's, then voted themselves to be the Parliament of England, & sole Legislators, and supreme authority of the Nation without either King or House of Lord's, or majority of their fellow Members, prescribing an Engagement under strictest penalties, against K. & House of Lord's, to seclude them from all future Parliaments. 7ly. Hereupon the Army Officers and Soldiers, (who made, continued them an absolute Parliament, and first of all subscribed the Engagement to be true and faithful to them without King and House of Lord's ) at last by Divine Justice, against their very engagements to them, secluded & suppressed them all, as they had done the King, Lord's, and their fellow Members, and declared them to be actually dissolved, and no longer to be a Parl. or the supreme authority of the Nation. 8ly. They then proceeded to choose and nominate a Parliament at Whitehall alone, without the people's election; and then one part of them, without the rest, resigned their new sovereign power, and secluded, dissolved the residue, and turned them out of doors. 9ly. They then proceeded to a New model of Parliaments, wherein they disabled most of the Freeholders, Citizens and Burgesses of England to be either Electors or elected Members, contrary to their privilege, and all former laws for elections: appointed those they styled, the Council of State at Whitehall, to seclude what Members they pleased (though duly chosen according to their new ill-tuned instruments) before or without any examination, or reason rendered for their seclusion to the secluded Members, or their Electors for their new created Parliaments: by which means they secluded whom and how many they pleased in all their late conventions; And most of those Reipublican Members and some cashiered Army Officers, who were most active in securing, secluding their fellow Members in December 1648. and in voting down the King and House of Lord's punc; who may now justly say as Ado • bez • eh once did in another case, Judge. 1.8. As I have done unto-others, so God hath requited me ; being secluded, secured, cashiered, dissolved, and some of them sent prisoners to remote Castles, (as they secluded and thus imprisoned myself, with other their fellow Members without cause) and most justly branded in several Pamplets and Declarations for a CORRUPT PARTY, carrying on their own ends, to perpetuate themselves in their late Parliamentary and supreme Authority; never answering the ends which God, his people, and the whole Nation expected from them, but exercizing an arbitrary power at Committees (and elsewhere) over them, likely to swallow up the ancient Liberties and Properties of the People, & to increase their vexations, &c. as they had most unjustly taxed the secluded Members 1648. for A CORRUPT MAJORITY, acting contrary to their trusts : Which I desire them now seriously to lay to heart, and to acknowledge God's Sovereign Justice therein. 10ly. Their new Major Generals in their last elections, prescribed to all Countries, and to most Cities, Burroughs, by letters, & lists of names sent to them, what persons they must elect, secluding those they elected which were not in their lists, and caused Sherrifs to return many they nominated, though never elected, but protested against by those who were to choose them: rather to carry on private interests, designs, than the private or public good Laws, Liberties, Properties, Peace, Ease of the Nation from importable Taxes, Excizes, Slaverie; and armed guards, and to set up private Conventicles, Parties, instead of free public English Parliaments, duly elected and constituted. These the sad effects of this Innovation and Usurpation of the Commons over their own Members, by the objected Presidents, which by Divine Justice, have made all their new modelled Conventions abortive, successess, yea to end in sudden confusions, and unexpected dissolutions ever since. Besides, from this their late fining, imprisoning and judging of their fellow Members in the House, they proceeded in the last long Parl. to make almost every Committee of the Commons House, a most arbitrary & tyrannical Court of Justice, independent on the House itself, without any report at all of their proceedings to the House; authorizing Committees to secure, imprison, close imprison, cashire, banish, condemn, execute many persons, sequester, confiscate, sell, dispose their Inheritances, Offices, Lands, Tenements, Benefices, real and personal estates; to deprive them of their callings, professions; to search and break up their houses, by Soldiers and others, without any legal sworn Officers, day and night, to seize their Letters, Papers, Horses, Arms, Plate, Money, yea debts in other men's hands at pleasure; to indemnifie and stay their legal actions, suits, Judgments at Law, and null their executions at their pleasures; yea to commit them till they released all suits, actions, Judgments, and paid costs and damages to those they justly sued, and recovered against, to add affliction to affliction, and cruelty, oppression to injustice. These are the bitter fruits of Commons usurped judicature, whereof there are thousands of most sad presidents which may hereafter be objected to prove the sole Power of Judicature to reside of right, not in the K. or House of Lord's, but in the Commons House alone, and every of their Committees, especially for Examinations, Plundered Ministers, Sequestrations, Indemnity, Haberdashers and Goldsmiths Halls, Privileges, sales of Delinquents, the Kings Queens, Princes, Lands and Estates, Excise, the Army, Navy, and the like: yea in their new created High Courts of Justice ; who have acted as absolute arbitrary, unlimited, lawless Courts of justice in the highest degree, to the subversion, destruction of the ancient Liberties, Freeholds, Properties, Great Charters, and fundamental Laws of the Nation in general, and of thousands of the highest & lowest degree of English Freemen in particular; with as much ground of reason, & Warrant from the many late Presidents of this Nature, as these here objected, to prove a so • e right of • udicature in the Commons House, in cases of undue elections, retorns, misdemeanors, privileges relating to their Members and their servants. Which strang exorbitant Presidents and Proceedings, if they should be made Patterns for future Parliaments and Committees ; I shall desire all sober minded men to consider of the dangerous consequences of them, thus notably expressed by the late King in his Answer concerning the Ordinance for imposing and levying the 20th. part of men's estutes 29 November 1642. After this Ordinance and Declaration, tis not in any sober man's power to believe himself worth anything, or that there is such a thing as Law, Liberty, Property, left in England under the jurisdiction of these men; and the same power that robs them now of the twentieth part of their estates, hath by that but made a claim, and entitled itself to the other nineteen, whne it shall be thought fit to hasten the general ruin. Sure, if the minds of all men be not stubbornly prepared for servitude, they will look on this Ordinance, as the greatest prodigy of Arbitrary power and tyranny that any age hath brought forth in any Kingdom; other grievances (and the greatest) have been conceived intolerable, rather by the logic and consequence, than by the pressure itself; this at once sweeps away all that the wisdom and justice of Parliaments have provided for them. Is their property in their estates (so carefully looked to by their ancestors, and so amply established by Us against any possibility of Invasion from the Crown) which makes the meanest Subject as much a Lord of his own, as the greatest Peer, to be valued or considered? here is a twentieth part of every man's estate (or so much more as four men will please to call the twentieth part) taken away at once, and yet a power left to take a twentieth still of that which remains, and this to be levied by such circumstances of severity, as no Act of Parliament ever consented too. Is their liberty which distinguishes subjects from slaves, and in which this freeborn Nation hath the advantage of all Christendom dear to them? they shall not only be imprisoned in such places of this kingdom (a latitude of judgment, no Court can challenge to itself in any cases) but for so long time as the Committee of the House of Commons for Examination shall appoint and Order; the House of Commons itself having never assumed, or in the least degree pretended to a power of Judicature, having no more authority to administer an Oath (the only way to discover and find out the truth of facts) than to cut off the heads of any our Subjects; and this Committee being so far from being a part of the Parliament, that it is destructive to the whole, by usurping to itself all the power of King, Lord's, and Commons. All who know anything of Parliament, know that a Committee of either House ought not by Law to publish their own results, neither are their conclusions of any force without the confirmation of the House, which hath the same power of controling them, as if the matter had never been debated; but that any Committee should be so contracted (as this of examination, a style no Committee ever bore before this Parliament) as to exclude the Members of the House, who are equally trusted by their Country, from being present at the Counsels, is so monstrous to the privileges of Parliament, that it is no more in the power of any man to give up that freedom, than of himself to order, that from that time the place for which he serves, shall never more send a Knight or Burgess to the Parliament, and in truth is no less than to alter the whole frame of government, to pull up Parliaments by the roots, and to commit the lives, liberties, and estates of all the people of England, to the arbitrary power of a few unqualified persons, who shall dispose thereof according to their discretion, without account to any rule or authority whatsoever. Are their friends, their wives, and children (the greatest blessings of peace, and comforts of life) precious to them? would their penury and imprisonments be less grievous by those cordials? they shall be divorced from them, banished, and shall no longer remain within the Cities of London and Westminster, the Suburbs and the Counties adjacent, and how far those adjacent Counties shall extend no man knows.
The 3 sort of Presidents and Objections are such, as Lilburn and Overton insist on, to prove; That the King and Lord's have no power at all to judge or censure Commoners in our Parliament. The only Record they insist on is the Lord's own Protestation in 4 E. 3. n. 2. & 6. in the case of Sir Simon Bareford ; which because I have already fully answered, p. 323, 324, 325. and cleared by sundry subsequent presidents, and there being no one president in any Parliament since to contradict it, I shall wholly pretermit, and proceed to their objections, which are only two.
The first and principal objections whereon they most insist and rely, is the Statute of Magna Charta, chap. 29. That no Free-man shall be imprisoned, outlawed, exiled, or any other may destroyed; Nor we shall not pass upon him nor condemn him, but by the lawful judgment of his Peers, or by the Law of the Land. Whence thus they argue: The Lord's in Parliament are not Commoners Peers, but the Commons only; therefore they cannot be judged in Parliament by the Lord's, but by the Commons alone; and if Peers there judge Commoners, it is a tyranny and usurpation even against Magna Charta itself, though it be in case of privilege.
To take away this grand seeming Objection, and give it a satisfactory answer, I say: First in general, that there is scarce one Parliament ever since Magna Charta was first confirmed, but the Lord's have sentenced and given Judgment against some Commoners capitally, or penally, in body, purse, or both, without the Commons (and did so doubtless 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 tyrannical usurpation, as Lilburn and Overton style it; but acknowledged ir as a just right in the Lord's, even in 3 Caroli itself when the Petition of Right was passed, in the Lord's Judgment and Sentence against Dr Manwaring a Commoner, impeached by the Commons in Parliament. And therefore for this Ignoramus alone, against the judgment of the Commons in Parl. in all ages, to aver this a breach of Magna Charta for imprisoning and sinning him for the highest affront and breach of privilege ever offered to any Parl. is the extremity of ignorance, malice, singularity.
Secondly, I answer, That the Statute of Magna Charta extendeth not to, nor was ever intended of the high Court of Parliaments Judgments, Proceedings, but only to and of the Proceedings, Judgments in the Kings great Courts of Justice at Westminster Hall, the Exchequer, his Privy Council, and other inferior Courts held before Judges, Justices of Assise, and other Officers, as is evident by comparing this objected Chapter with c. 11, 12, 13, 14, 18, 28, 30, 34, 37. by the Statutes of 25 E. 3. Stat. 5. c. 4. 28 E. 3. c. 3. 37 E. 3. c. 18. 38 E. 3. c. 9. 42 E. 3. c. 2. 17 R. 2. c. 6. and the Petition of Right itself, 3. Caroli, which so expound it; there being never any complaint against the Parliament itself or House of Peers in any age, for breach of Magna Charta, in censuring or imprisoning Commoners till now. Therefore this misapplying of this Law to the Parl. and House of Peers, is a gross oversight.
Thirdly, the very literal sense of this Law is much mistaken by the Objectors; The main scope whereof is this, That no man should be deprived of his Freehold, Liberties, Limbs, life, or outlawed, exiled, or otherwise destroyed, without legal process in due form of Law, in Courts of Justice; not by mere force, violence, injustice, arbitrary and tyrannical power, or martial Law, nor being brought to his legal trial or answer: And that none should pass upon them in any trials for freehold, or life, but only English Freemen. Now in respect of Freedom, any, every Freeman of England is a Peer to another Freeman, quatenus such a one, within this Law, though of an higher degree in point of honor, dignity, office, estate; as Knights, Esquires, Gentlemen, Yeomen, Citizens, Merchants ; these as Freemen, are all Peers one to another, and may pass upon each other in Juries, both in civil and criminal causes and this clause No Freem • n shall be imprisoned, &c. but by the lawful judgment of his Peers; extends only to villains and those who are not Freeholders from being Judges of Freemen and Freeholders in trials by Jury, (whence the Writs to the Sherifs to summon Jurors, require them always to return Liberos & Legales homines ) not to exclude Lord's or Peers (who are Freemen in the highest degree) to be Judges of Commoners who are Freemen. So as the Argument from the true meaning of this Law can be but this, in respect of the persons quality who are to give judgment; Villains, and those who are no Freemen, are not to be Judges of, or impannelled in Juries to condemn Freemen; because they are not their Peers, nor Freemen as well as they: Therefore Lord's who are Freemen of the highest degree, may not give judgment against Commoners who are Freemen; Very learned nonsense! We all know that the Lord Chancellor of England, Lord Keeper, Lord Treasurer, Master of the Court of Wards, and some of the Judges of the Kings Courts in Westminster Hall in former times, with the Chief Justiciar, and Justices in Eyre, were anciently, and of late too (as the Earl of Holland and others) Peers of the Realm, not Commoners ; and that all the Peers of the Realm are in Commissions of Oyer and Terminer, and of the Peace ; yet did we never hear of any Commoner demurring or pleading thus to any of their Jurisdictions in Chancery, Kings Bench, the Exchequer Chamber, Eyres, Assizes or Sessions ; Sir, I am a Commoner, and you are a Peer of the Realm, but no Commoner as I am; besides, you sit here only in the Kings right, doing all in his name, and representing his person, who is not my Peer, but Sovereign. Therefore you ought not to judge my cause, condemn my person, nor give any sentence for or against me, it being contrary to Magna Charta, which enacts, That no freeman should be judged or passed upon, or condemned, but by the lawful judgment of his Peers. Certainly no person was ever yet so mad or sottish, to make such a Plea before Ignoramus Lilburn ; And if Lord's, Peers may judge the persons, causes of Commoners in the Chancery, Kings Bench, Exchequer, Court of Wards, Eyres, and at Assizes, Sessions, without any violation of this clause in Magna Charta ; (though they are exempted to be impannelled or serve in Juries, in cases of Commoners, as Commoners in Juries to try them) much more may the House of Peers in Parliament do it; who are certainly Peers to Commoners, as Freemen, though Commoners be not Peers to them, as Lord's, within the meaning of Magna Charta, chap. 29.
Fourthly, If the Lord's in Parliament cannot meddle with, or give judgment in Commoners causes, without breach of this clause in Magna Charta, then why did Lilburn himself sue and petition to the Lord's as the only competent Judges to reverse his sentence in Star, Chamber, and give him damages, because it was against this very Chapter of Magna Charta ? If Lord's cannot give judgment in the case of Commoners, as now he holds, without express violation of this Law ; then himself in petitioning the Lord's to relieve him against the Star-Chamber sentence, because contrary to this very Law and Chapter of Magna Charta, was a great a violator of it, as his Star-Chamber censurers, and his sentence in Star-chamber remains still unreversed, because the Lord's examining, reversing of it, (they being no Commoners as he is, but Peers, ) was Coram non judice, and merely void, by the Statute of 25 E. 3. Stat. 5. c. 4. because contrary to Magna Charta itself, as he now expounds it. Let him therefore unriddle, assoyl this his own Dilemma, or forever hold his tongue and pen, from publishing such absurdities to seduce poor people, as he hath done; to exasperate them to clamour against the Lord's, for being more favorable in their censure of him, than his transcendent Libels and contempts against them deserved.
Fifthly, This Statute is in the disjunctive, by the Lawfull Judgment of his Peers ; OR BY THE LAW OF THE LAND, which this Ignoramus observes not. Now by the Law of the Land, every inferior Court of Justice may fine and imprison men for contempts, or misdemeanors against them and their authority: therefore the Lord's in Parliament being the highest Tribunal, may much more do it, and have ever done it, even by this express clause of Magna Charta, and the Law and Custom of Parliament, as well as they may give judgments in writs of Error against or for Commons, without the Commons consent, as himself doth grant: yea, and by the Kings concurrent assent, declare what is Treason, and what not, within the Statute of 25 E. 3. c. 20. in the cases of Commoners as well as Lord's, without the Commons; as they did in the forecited cases of William de Weston and Lord of Gomines, 1 R. 2. n. 38, 39, 40. Of William Thorp, 25 E. 3. n. 10. Of Thomas Haxey, 20 R. 2. n. 15, 16.23. Of Sir Thomas Talbot, 13 R. 2. n. 20, 21. Of Sir Robert Plesington, and Henry Bowhert, 22 R. 2. Plac. Coronae in Parliamento, n. 27, 28. Of John Hall, 1 H. 4. Plac. Coronae in Parl. n. 11. to 17. Of Sir Ralph Lumley and others, 4 H. 4. n. 15. 19, 20, 21. Of Sir John Oldcastle, 5 H. 5. n. 11. and of Sir John Mortymer, 2 H. 6. n. 18. as the Commons and Judges in all those Parliaments agreed without contradiction, against the erroneous opinion of Sir Edward Cook to the contrary in his 3. Institutes, p. 22.
Sixthly, It is granted by Lilburn, that by this express Law, No Freeman of England ought to be judged or censured but only by his Peers, and that Commoners are no Peers to Nobles, nor Noblemen Peers to Commoners ; Then by what Law or reason dared he to publish to the world, That the House of Commons are the Supreme Power within this Realm, and THAT BY RIGHT THEY ARE THE LORD'S JUDGES? certainly this is a Note beyond Ela ; a direct contradiction to Magna Charta in this very clause wherein he placeth his strength, and subverts his very ground-work against the Lord's Jurisdiction in their censure of him. For if the House of Commons be by right the Lord's Judges, then by Magna Charta, c. 29. they are and ought to be their Peers ; and if the Commons be the Lord's Peers, then the Lord's must be the Commons Peers too; and if so, then they may lawfully be his Judges even by Magna Charta, because here he grants them to be no other than his Peers; Lo the head of this great Goliath of the Philistine Levellers, cut off with his own sword; and Magna Charta forever vindicated from his ignorant and sottish contradictory Glosses on it. Now to convict him of his Error, in affirming the House of Commons to be by right the Lord's Judges, I might inform him (as I have formerly proved at large) that Magna Charta itself, c. 14. & 29. and Sir Edward Cook (his chief Author) in his commentary on them, are express against him; that in the Parliament of 15 E. 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 Temporalties, Lands and Tenements, Goods and Chattels seised into the Kings hands, and some put to death, without Judgment 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 judgment, to lose his Temporalties, Lands, Tenements, Goods, Chattels, nor to be arrested or imprisoned, outlawed, exiled, nor forejudged, nor put to answer, nor to be judged, but by award of the said Peers in Parliament; which privilege 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. 18 E. 3. n. 7. to 16. 10 R. 2. n. 7, 8. 11 R. 2. n. 7, &c. and sundry other Parliament Rolls. See Cook 4. Instit. p. 15. 17 E. 3. 19. Cromptons Jurisdiction of Courts, f. 4. 12, 13. Stamford, f. 151, 152. This Paradox therefore of his, is against all Statutes, Law-Books, Presidents whatsoever, and Magna Charta itself. And as false an assertion, as that the Subjects are the Judges of their Sovereign, the Servants of their Masters, the children of their Parents, the Wi • es of their Husbands, the Soldiers of their General, and the feet and lower members of the Head.
The second & only Objection more of moment, is this; If the House of Peers may without the Commons fine and imprison Commoners; then if their fine and imprisonment be unjust and illegal, they shall be remediless, there being no superior Court to appeal unto; which will be an intolerable slavery and grievance, not to be endured among free-born people.
I answer, first, That no injustice shall or ought to be presumed in the highest Court of Justice, till it be apparently manifested. Secondly, If any such censure be given, the party (as in Chancery) upon just grounds shown, may Petition the House of Peers for a review and new hearing of the cause, which they in justice neither will nor can deny; and if they do, then the party grieved may petition the house of Commons to intercede in his behalf to the Peers for a rehearing; but for them to discharge, free any Commoner judicially censured by the Lord's, I have hitherto met with no president in former Parliaments, nor power in the house of Commons to do it, who cannot reverse Erronious judgments in any inferior Courts by writ of Error, but the Lord's alone, much less then the judgments of the Higher House of Peers, which is paramount them. Thirdly, I conceive the House of Peers, being the Superior Authority, and only Judicatory 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 do it; or else there will be the same mischief or a greater, in admitting the house of Commons to be Judges of Commoners, if there be no appeal from them to the Lord's, in case their sentences be illegal or unjust. Thirdly, This mischief is but rare, 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 appeal from it, but only to the next or some other Parliament that shall be summoned, by petition in the nature of a Writ of Error. There is a greater grievance in all ill public Acts which concern many, than in ill judgments which concern but one or two particular persons; which yet cannot be repealed but by another Parliament; as the Errors and decrees of one General Council cannot be rectified or reversed, but by and till another General Council meets to do it. The same mischief was and is in Errors, Judgments, and Decrees given in the Kings Bench, Chancery, & in illegal commitments by them; for which there is no relief out of Parliament, but to wait till a new Parliament be called.
For this I shall cite one memorable Record (besides the forecited cases of the two Spencers, Roger Mortimer, Matravers, Earls of Arundel, Salisbury, and others) relating to the Parliaments of Ireland. Claus. 46 E. 3. m. 25. Pro Hominibus de Hybernia de Custumae oneribus revocandis, Roberto de Ashton Iustic. Hyberniae. A complaint was made from some of Ireland to the King, that Wilhelmus de Windsore being Lieutenant of Ireland, at the first Parliament held there after his coming, desired diversa Custumae et onera quae antea alique tempore concessa non fuerunt, viz. de quolibet lasto halicium, 3 s. with divers impositions more on most commodities there expressed. Et licet Praelati, Magnates, et alii ligei nostri PRO MAJORI PARTE in dicto Parliamento nostro existentes, concessionem, levationem et solutionem Custumae et onerum supradictorum ABSQUE ASSENSU MINORIS PARTIS DICTI PARLIAMENTI CONCESSERUNT per tres annos tantum, et non ultra concesserunt, praefatus tamen Wilhelmus et alii de Consilio suo, • rotulo Cancellariae nostrae ejusdem terrae irrotulari et registrari fecerunt, quod dictae Custumae et onera per OMMES in dicto Parliamento praesentes perpetuis temporibus percipienda, concessa fuerunt; in ipsorum nostrorum ligeorum terrae nostrae praedict: destructionem et depauperationem manifestam. Unde Nobis supplicarunt, &c. Et ideo Vobis mandamus, quod praemissa omnia et singula ejusdem, modo et forma quibus gesta et act a fuerunt IN PROXIMO PARLIAMENTO NOSTRO in terra praedicta tenendo, coram Praelatis, Magnatibus e • Communitate dicti Parliamento recitari ac dec • arari facias. Etsi per expositionem et examinationem Vobis constare poterit praemissa veritatem continere, tunc irrotulationem ac recordum concession • s custumae et onerum praedict: DE ASSENSU DICTI PARLIAMENTI cancellari, et damnari, et levationem et exactionem Custumae praedict: ration concessionis antedictae post dictum triennium supersederi facias omnino. Teste, &c. 28 Maii. It appears likewise by Claus. 47. E. 3. m. 3. De quodam subsidio in Hybernia levando, that they likewise complained by Petition to the King that the said William de Windsor whiles he was Lieutenant of Ireland, had imposed on them a subsidy of 5000 l. in the two last Parliaments there held at Kilkenny and Balydoill, against their wills and their free grants ; whereupon the King had sent a Writ, that it should not be levied : pro eo tamen, that we are since informed by the GREAT MEN, and other credible persons of Ireland, that the 5000 l. was FREELY GIVEN AND GRANTED by the Lord's, Greatmen, and Commons in these Parliaments, ET NON PER VIAM IMPOSITIONIS EXACT: as was suggested. Volumus de avisamento Concilii nostri, quod omnes denarios de dicta summa 5000. librarum qui a retro existunt; & nondum levati de hominibus et ligeis nostris terrae nostrae praedictae, juxta formam concessionis eorundem leventur, &c. Teste apud Westmonasterium 20 Decembris.
Finally, He that suffers by and under an unjust censure, will have the comfort of a good Conscience to support him till he be relieved; and therefore he must possess his Soul with Patience, and rejoice under his cross, and not rail, murmur, and play the Bedlam, as Lilburn, his Companions, Overton, Larnar, and other Sectaries do, against our Savior's own precept and example, and then God in his due season will relieve and right them in a legal 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 and glory of all their former sufferings against Law and Reason.
Having answered these Objections, I shall now earnestly desire all Lilburns and Overtons seduced Disciples, whether Members or others, seriously to weigh and consider the premises, that so they may see how grossly they have been deluded, abused; and misled by these two Ignes fatui, or New-lights of the Law, and Circumscribers of the Lord's and Parliaments Jurisdictions, which (God knows) they no more know nor understand than Balaam's Ass ; 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 publicly to retract all their seditious railing Libels and Scurrilous Invectives against the Lord's undoubted Privileges, Jurisdiction, and Judicature, 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 gainsay) to undeceive the many ignorant over-credulous poor Souls they have corrupted and misled to the public disturbance of our Kingdoms Peace ; and let all their followers consider well of our Savior's caution, Mat. 15.14. If the blind lead the blind (as these blind-guides do them) both of them shall fall into the Ditch, and there perish together : O consider therefore what I have here written to undeceive your judgments, and reform your practice; consider that Dominion, Principality, Regality, Magistracy and Nobility are founded in the very Law of Nature, and God's own institution, who subjected not only all beasts and living Creatures to the sovereign Lordship of man, to whom he gave Dominion over them, Gen. 1.28, 29. c. 9.2, 3, 5· Psal. 8.6, 7, 8. by virtue whereof men still enjoy Dominion over the Beasts; but likewise one man unto another; as Children to their Parents, Wives to their Husbands, Servants to their Masters, Subjects to their Kings, Princes, Magistrates, Soldiers to their Captains, Mariners to their Ship-Masters, Scholtars to their Tutors, People to their Ministers ▪ which order, if denied or disturbed, will bring absolute and speedy confusion in all Families, Corporations, States, Kingdoms, Armies, Garrisons, Schools, Churches, and dissolve all human Societies, which subsist by order and subordination only to one another; and seeing God himself and Jesus Christ are frequently styled in Scripture, not only King, Lord, the Head of all Principalities, Powers, Thrones, Dominions, but also KING OF KINGS, and LORD OF LORD'S, Deut. 10.17. Ps. 136.3. 1 Tim. 6.15. Rev. 1.5. c. 17.14. c. 10.6. (which glorious Titles they must lose if all Kings and Lord's be totally abolished:) And since Monarchy, Royalty, Principality, Nobility ; yea Titles of Honor and Nobility, (as Kings Princes, Dukes, Lord's, &c.) are of Divine institution: Col. 1.16. Rom. 13.1, 2. Eph. 3.10. yea as ancient almost, as the world itself, universally received, approved among all Nations whatsoever under heaven, and honored with special privileges, as not only all eminent Authors and experience manifest, but these ensuing Scripture Texts, Gen. 12.15. c. 14. • . to 10. c. 17.6.16. c. 20.2. c. 21, 22, 23. c. 25.16. c. 26.1.8.26.26. c. 36.15, 16, 17, 18, 29, 30, 31, to 43. c. 9.1, 2. c. 41.40, to 47. c. 47.22, 26. Exod. 1.8. Numb. 20.14, &c. c. 21.1, 18, 21, 33. c. 22.7.10.14, 15, 40. c. 23.17. c. 2, 3, 10. c. 16.2. c. 27.2. c. 32.2. Deut. 17.14.15, 16. Josh. 1.16, 17, 18. c. 5.1. c. 5.1. c. 8, 9, 10, 11, 12. Judge. 9.6, 18. 1 Sam. 8.5, 9. 2 Sam. 11.2. 1 Kin 4.34. c. 10.15, 23, 29. c. 20.19. c. 23.22. Job 3.14. c. 36.7. Psal. 2.2.10. Psal. 62.12.14.29. Ps. 72.10, 11. Ps. 102.15. Ps. 136.17, 18. Ps. 138.4. Prov. 8.15, 16. Prov. 30.31. Eccl. 10.16, 17. Judge. 3.5. c. 16.8. 1 Sam. 5.11. c. 29.2.6, 7. Jer. 25.18. to 27. Dan. 4.36. c. 5.9, 10, 13. c. 6.27. Mat. 8.9. Mar. 6.21. c. 10.42. 1 Cor. 8.5. Rom. 13.1, 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 Levellers, and Lilburnists to consider and study, with the others forecited; it will be a mere folly and madness in any man to prove Antipodes to this institution of God, Nature, Nations : to run quite contrary to all men, and to level the head, neck, shoulders to the feet; the tallest Cedars to the lowest Shrubs ; the roof of every building to the foundation stones, the Sun, Moon, Stars, Heavens, to the very Earth, center, and even men themselves to the meanest beasts. I shall therefore conclude with Saint Paul's serious admonition, which these refractory persons have quite forgotten, Rom. 13.1, 2.3. Let every soul be subject to the higher Powers; for there is no power but of God, the powers that be are ordained of God; whosoever therefore resisteth (much more oppugneth, abolisheth) the Power, resisteth (oppugneth, abolisheth) THE ORDINANCE OF GOD. and they that resist (oppugn or endeavor to abolish these powers) shall receive to themselves DAMNATION; for Rulers are not a terror to good works, but to the evil; wherefore YE MUST NEEDS BE SUBJECT, NOT ONLY FOR WRATH, but likewise FOR CONSCIENCE SAKE. And for this cause pay you tribute also, for they are God's Ministers, attending continually on this very thing. Render therefore to all (such just higher Powers) the • ues, tribute to whom tribute, custom to whom custom, fear to whom fear, HONOUR to whom HONOUR IS DUE, (which Saint Peter likewise seconds almost in the self same words, which you may do well to peruse and study, 1 Pet. 2.12. to 20.) and then you will never dare to question or dispute anymore the Power, Judicatory, Privileges of the Right Honorable House of Peers, much less to Revile and Libel against their lawful power, persons, Judicature, as now you do, to the infinite Scandal of your Schismatical faction, and Religion itself, which you profess only in show, but deny in deeds and practice.
I shall close up this Plea with these ensuing Presidents of Power given by Act of Parliament to the Lord's of the Kings Council, to answer those Petitions, and redress those grievances, which were not answered nor redressed sitting the Parliament, after the Parliaments themselves were ended; and that at the Commons special requests.
Parl. 15 H. 6. n. 33. I • e • lavantdir 27 iour de Marcz. un au •• e petition fuist baillez a nostre Seignior le Roy en mesme le Parlement per les Comunes dicel, le tenor de quell petition ey e • suit • Please au Roi nostro Soverayn Seignior considerer, comet plusours petitions ount estez baillez et exhibitez a vestre tresnoble ha • tesse par les Comunes de cest present Parliament pur ent avoir covenable remedy, et unquore meant determine • z, d'ordenier, per advis des Seigniors Esperituelx et temporelx & assent des Comunes avantaitz, que les ditz petitions purront estre deliveres a les Seigniors de vestre tressage Counseill; lez que • x appellez a eux les Justices et autres gentz aprisez en v • stre ley si besaigne y foit, aiant poair par auctoritee du dit Parlement, p • r entre cy et la fest del Nativite de Seint Johan Baptist prouohein avenir, doier et terminer les dites petitions, et que Ycelle ensi terminez del advis et assent suis ditz, pu • runi estre enactez, enrollez et mys de Recorde de mesme vestre Parlement. La quell petition lev en mesme le Parlement et entenditz, del advis et assentdes Seigniors Espirituelx & temporelx en le die Parlement adonqes esteantz, fuit restonduz a icell en manere ensuant.
Et postea videlicet vicessimo sec • ndo die Junii tunc proxime sequenti, omnes et singulae Petitiones quae Domino nostro Regi per Comunes Parliamenti praedicti pro congruo remedio inde authoritate ejusdem Parliamenti habend. libertatae et exhibitae minime{que} ante dissolutionnem Parliamenti praedicti determinatae, fuerunt certis Dominis de Consilio Regis subscriptis, videlicet carissimo Avunculo Regis, Humfrido Duci Gloucestriae, ac venerabilibus patribus Johanni Archiepiscopo Ebor. Johanni Bathon et Wellen Cancellario Angliae, & Willielmo Lincoln Episcopo, necnon et Radulpho Cromwell Militi Thesaur. Angl. Waltero Hungerford Militi et Magistro Willielmo Lyndwode Custodi privati figilli, Dom. Dom. Regis apud Westm. in Camera stellata preatextu auctoritatis praedictae aexhibitae fuerunt et libertatae, qui quidem Domini appellatis sibi prius Justiciariis ac aliis peritis in lege, tam communes quam spirituales Petitiones subscript. de petitionibus antedictis coram eos legi fecerunt, easque authoritate praed▪ in forma qua in indorsamento earundem Petitionum continetur determinaverunt: quarum quidem petitionum tenores una cum responsionibus earundem inferius hic sequuntur.
The like was enacted and done in the Parliaments of 1 H. 6. n. 21. 4 H. 6. n. 21. 8 H. 6. n. 45. 8 H. 6. n. 69. Since then the Lord's at the Commons request, were thus au • horized to be Judges, Answerers, Reformers of their Petitions and Grievances in Parliament, which could not be there answered, redressed▪ during the Parliaments sitting, even after those Parliaments determined; much more must they be the only proper Judges, Answerers and Redressers of them in our Parliaments, whiles they continued sitting; and those who are proper Judges of their Petitions and Estates in Parliament, must by the self-same reason be admitted to be the proper Judges of their persons likewise in all cases proper for Parliamentary Conusance, maugre all pretences to the contrary.
A Supplement to the Premises.
THe Principal scope of the Precedent Plea for the Lord's and House of Peers, being only to justify and ratify their ancient just Right to sit and vote in all English Parliaments, and Great Councils or State and their Judicial Authority in them, without the Commons, especially in Criminal Causes, then only controverted, contradicted by Lilbourne, Overton, & their Disciples; I reputed it both useful, and necessary to superadd thereto some memorable Presidents in former ages (which no Vulgar writers of our English Parliaments have remembered) of the Kings and Lord's Proceedings, Judicature in Parliament in Civil and Ecclesiastical Causes▪ of public and private concernment, as no way heterogeneal, but homogeneal to my Theam, to make this Plea more complete, and communicate some more knowledge of Parliamentary Affairs and Proceedings, both to the Ignorant and Learned in this declining age wherein learning and learned men of public spirits in all Professions, are so much decayed, and little Visible Probability left of any speedy reparations of this inestimable loss, for want of public encouragement ; I shall proceed herein, only in a Chronological Method, as I have done for the most part in the premises, beginning with the ancientest president I meet with of this kind, and so descending to succeeding ages.
About the year of Christ, 536 Our famous British victorious King Arthur, by his Letters and Messengers summoned all the Kings, Prelates, Dukes and Nobles subject to him, to meet at the City of Caerleon on the feast of Pentecost ▪ then to be new crowned, and settle the peace and affairs of his Realms; whereupon there assembled at that time and place thirteen Kings, three Archbishops, and many Princes, Dukes, Consuls, Earls and LORD'S (whose names are registered in Geoffrey Monmouth ) whiles they were thus convened, there arrived twelve men, with letters from Lucius Tiberius, procurator of the Roman Republic, demanding in high language, The Tribute of Britain, which the Senate command King Arthur to pay, with the arrears injuriously detained, because Julius Caesar had reserved it (upon his conquest of Britain, and he with other Roman Emperors had long received it: summoning him likewise to appear at Rome in August the year following, to satisfy the Senate for the injuries done them, and submit to the sentence their Justice should pronounce; or else denouncing war against him. This Letter being publicly read before all the Kings, Princes, Dukes and Nobles present; the King consulted with them, craving their unanimous advise and sense concerning this business ; affirming, That this Tribute was exacted, ex irrationabili causa) against all reason; for he demanded it to be paid as due, because it was paid to Julius Caesar, and his successors, who invited by the devisions of the old Britons arrived with an Army in Britain, and By force and violence subjected the Country to their power, shaken with domestic commotions . Now because they obtained it in this manner, vectigal ex eo unjust receperunt; therefore they unjustly received tribute out of it. Nihil enim quod vi & violentia acquiritur, juste ab • llo possidetur, qui violentiam intulit: irrationabilem ergo causam prae • endit qua nos jure sibi tribitarios arbitratur. For nothing which is acquired by force and violence, is justly possessed by any man who hath offered the violence. Therefore he pretends An irrationable cause whereby he reputes us to be Tributaries to him, &c. The whole Council upon debate fully assented to this opinion, and promised the King their assistance against the Romans in this cause. Whereup • n King Arthur returned this answer, That he would by no m • ans render them tribute, neither would he submit himself to their judgment concerning it, nor repare to Rome, &c. An express resolution. That Conquest by war, force, and violence, is no good, just, nor lawful, but an unlawful and unjust Title to any Tributes or Possessions, which these who now pretend they are Conquerors, and us a mere conquered Nation, and therefore they may impose what Taxes, Excises Tributes, Laws, Executions they please upon us (when as they were only raised, waged commissioned, to defend, preserve our Laws, Liberties, King, Parliament, and Kingdoms, not to conquer or enslave them) may do well to consider.
In the year of our Lord, 799. King Kenulfus, upon the petition and complaint of Athelardus Arch-Bishop of Canterbury, consentientibus, EPISCOPIS ET PRINCIPIBUS MEIS, assembled in a Parliamentary Council, restored four parcels of Lands to Christ-Church in Canterbury, which King Offa heretofore had taken from this Church, and conferred on his Officers.
Kenulfus King of Mercia, calling a Provincial Council held at Cloveshe, Anno Dom. 800. wherein all the Bishops, Dukes, Abbots, and Nobles of every order were assembled, complaint was made therein, that after the death of Arch-Bishop Cuthhert, Verheb and Osbert, led by a malignant spirit, stole away the evidences and writings of the Monastery of Cotham, and all the Lands thereunto belonging, given by King Athelbald to our Savior's Church in Canterbury, and brought them to Kenulfus King of the West-Saxons, who thereupon converted the said Monastery and Lands to his own use. After which • regwin and Jambert Arch-Bishops of Canterbury, complained of this injury done to the Church in sundry Councils, both to King Kenulfus, and Offa King of Mercia, who took from Kenulfus the Monastery of Cotham, with many other Lands, and Towns, and subjected them to the Realm of Mercia. At last Kenulfus induced by late repentance, restored the evidences and writings of the said Monastery, together with a great sum of money to the said Church, to prevent the danger of an excommunication, but King Offa, as he received the said Monastery without writings, so he retained them during his life, and left them to descend to his heirs without any evidence after his death; whereupon Athelardus the Arch-Bishop, and other wise men of Christ-Church, brought these Evidences and Writing touching Gotham into this Council of Clovesho ; where when they had been publicly read; OMNIUM VOCE DECRETUM EST, that it was just the Metropolitical Church should be restored to the said Monastery, of which she had been unjustly spoiled for so long a time. Athelardus receiving also in this Council the dignities and possessions which King Offa had taken from Jamber • ; annuente ipso Rege, as Gervasius records.
In a Council held at Clovesho, Anno 813. Upon complaint of the Arch-Bishop of Canterbury, the Arch-Bishopric of Litchfield was dissolved, and the Bishoprics annexed to it by King Offa taken from the See of Canterbury, restored and reunited thereunto, by the consent of King Kenulfus, his Bishops, Dukes, and Nobles, (who writ a Letter to Pope Leo for that purpose) unanimo consilio totius sanctae Synodi. And in this Council also, other lands were restored to the Bishop of Worcester, and other controversies between Bishops concerning their Lands and Limits decided.
In another Council at Clovesho, Anno 821. Wherein King Kenulfus, Wulfred, Arch-Bishop of Canterbury, with the rest of the Bishops, Abbots, LORD'S, and GREAT MEN, as well Ecclesiastical as secular were present; inquiry was made, whether any were unjustly spoiled and deprived of their rights ? Whereupon it was shown, that Arch-Bishop Wulfred was unjustly deprived of his just Lordship and Jurisdiction near six years space, and forced under pain of confiscation of his goods and banishment, to convey three hundred Hydes of Land to him, upon condition that he should be restored to his full Archiepiscopal authority; which condition was not performed. After the Kings death, Abbess Kenedrytha, his daughter and heir, was summoned to this Council, where the Arch-Bishop complained of the injuries done to himself, and Christ-Church in Canterbury by her Father, requiring reparations for them from the Abbess, if it were just. Whereupon ALL THE COUNCIL held it just, and DECREED BY AN UNANIMOUS DECREE, that all the Lands and things taken away from the Arch-Bishop by her Father, should be restored, together with the profits thereof lost for so long a space, as also all the Books and Writings, by the Abbess being heir to the King, which was accordingly performed by her.
King Bertulfus, Anno 850. Holding a Great Council, with the Prelates and Nobles of the whole Realm of Mercia, upon the complaint of Siward, and the Monks of Croyland, of certain injuries maliciously done unto them by their adversaries, in violating the Bounds and Privileges of their Sanctuary, to the great prejudice of their Abby : Thereupon the King, Prelates and Nobles in this Council for redress of this injury, prescribed a Perambulation of their Bounds to be made by the Sheriff of the County, and to certify the same unto them when made; which was accordingly made, certified to, and confirmed by THE KING, PRELATES and NOBLES in the Council, held by them at Kingsbury, in the year, 851. (as you may read at large in Ingulphus ) upon the petition of Abbot Siward.
After the death of King Edgar, Anno 975. there being a great difference between the Nobles of the Realm about electing a new King; some of them siding with Æthelred, others with Edward, his two Sons, all the Bishops, Abbots, and NOBLES assembled in a great Parliamentary Council to debate and determine their rights and titles to the Crown. Wherein they elected and crowned Edward the elder Brother King. In this Council, and two or three more succeeding it at Winchester and Calne ; the married Priests complained TO THE LORD'S, that they were unjustly expelled out of their Churches by the Monks, and their prevailing party during King Edgars Reign, to their dishonor, and the great injury of the Nation, desiring that the Monks might be ejected, and they restored to their Churches they anciently enjoyed : about which there were great contests and disputes in sundry Councils, the King and LORD'S inclining to restore them, against Arch-Bishop Dunstans, and other Monkish Prelates wills.
About the year 982. There was a Witenagem • t, or Parliamentary Council held at London, to which the DUKES, PRINCES and NOBLES resorting from all parts; Adelwold Bishop of Winchester complained, that one Leofsi, who had purchased Lands of him in the Isle of Eli, not only refused to pay for them, but also disseised him of three other Manors. The cause being opened and pleaded by the Bishop, and the Lawyers flocking thither from all parts: They ALL ADJUDGED, that the Lands and Manors should be restored to the Bishop, together with all his damages, and that Leofsi for this his rapine should also pay a fine and ransom to the King.
Queen Edgen in a civil cause and suit in the County Court between her and Goda, appealed from that Court to King Æthelred, and a Parliamentary Council at London, Congregatis Principibus & sapientibus Angliae. In the time of St. Edward, a suit between the Bishops of Winchester and Durham, coram Principibus et Episcopis Regni in praesentia Regis, ventilata & finita est. In the tenth year of King William the Conqueror, Episcopy, Comites et Barones Regni regia potestate ediversis Provincis ad universalem Synodum pro causis audiendis et tractandis convocati sunt, as the Leger Book of Westminster records. Hence I suppose it was, that what we now call a Parliament, was sometimes styled by our ancient Historians in former ages MAGNUM PLACITUM because of the great Pleas and suits therein decided, and judged BY THE KING and LORD'S.
King William the first, Anno 1071. held a great Council of his PRELATES and NOBLES at Winchester. In hoc Concili • dum caeteri trepidi, ut pote Regis aegn • scentes animum, ne suis honoribus privarentur venerandus Vir Wulstanus, Wigorniensis Episcopus, quamplures possessiones sui Episcopatus ab Aldredo Archiepiscopo du • à Wigorniensi Ecclesia ad Eboracensem transferretur sua potentia retentas qui eo tunc defuncto in Regiam potestatem devenerant, constanter proclamabat, JUSTITIAMQUE INDE FIERI, tam AB IPSIS QUI CONCILIO PRAEERANT, quam a Rege FLAGITABAT. At quia Eboracensis Ecclesia non habens Pastorem qui pro ea loqueretur, muta erat, JUDICATUM EST, ut ipsa querela sic remaneret quousque Archiepiscopo ibi constituto qui Ecclesiam defenderet) dum esset qui ejus querelae responderet, & objectes & responsis posset ebiden • us et Iustius Iudicium fieri, sicque tunc a querela ad tempus remansit. But Thomas being soon after consecrated Arch-Bishop of York, thereupon reverendi Wulstani Wigorniensis Episcopy mota est iterum querela, Archiepiscopo jam consecrato Thoma, qui pro Eboracensi loqueretur Ecclesia; & in Concilio in loco qui vocatur Pedreda, celebrato coram Rege ac Doroberniae A • chiepiscopo Lanfranco, & Episcopis, Abbatibus, Comitibus & Primatibus totius Regni, Dei gratia adminieulante Termina • um. Cunctis siquidem machinationibus, non veritate stipatis, qu • bus Thomas, ejus{que} fautores Wigorniensem Ecclesiam deprimere, & Eboracensi Ecclesiae subj • cere aniliamque facere modis omnibus satagebant, justo Dei judicio in scriptis evidentissim is detritis & penitus annihillatis, non solum vir Dei Wulstanus proclamatas & expetitas possessiones accepit, sed & suam Ecclesiam (Deo clamante & Rege concedente) ea libertate liberam suscepit qua primi fundatores ejus, sanctus Rex Ethelredus, Offa, &c. ipsam liberaverunt. By which History it is apparent, that the King and Lord's in that age had the sole judicature in civil causes in the Parliaments then held, and decided civil Titles and controversies therein between Bishops and spiritual, as well as temporal persons.
In the year-Book of 21 Ed. 3. fol. 60. There is a recital, that upon the complaint of the Abbot of St. Edmond's de Bery against the Bishop of Norwich for infringing the liberties of the Abby, in the Reign of William the Conqueror, in a Parliament held under him; (most likely in this Council of Pedreda ) it was ordained per le R • y, et per Larchebesque de Canterbury, et per touts les Auters Ebesques de la terre, Countes et Barons (without mentioning any Commons) that at what time soever hereafter the Bishop or any of his successors should go against the points of the foundation or exemption of the said Abby, that he who should be Bishop for the time, should pay to the King or his heirs thirty talents of gold. The Bishop of Norwich in 21. E. 3. contrary to the Kings prohibition, not to enter the franchises, nor intrench upon the Privileges of the said Abby against this ancient ordinance, visited in the foresaid Abby, and summoned them to show the Charters of their foundation, wrongfully, and in despite of our Lord the King. Whereupon the King sued forth a writ of contempt against the Bishop; to which the Bishop appearing by his Attorney, pleaded not guilty; whereupon he was found guilty by inquest: upon which it was awarded, that his temporalties should be seised into the hands of the King, by force whereof his temporalties were seised, and a Scire facias issued against the Bishop to appear before the Chancellor, to show cause why he should not likewise pay the thirty talents to the King▪ according to this ordinance. To which the Bishop pleaded, that the Bishop at the time of this ordinance made, might charge himself with these Talents, but not his successors in perpetuity, neither doth it appear that the Bishop himself was present in Parliament, when this Ordinance was made, and the other Bishops had no power to charge him or his successors without his consent. But because it was done by ordinance made in Parliament, and there of record, it was adjudged it should bind him and his successors, and that he should pay the thirty talents of gold to the King, and that the King himself shall set the price of them, be it more or less.
Odo Bishop of Bayon, Earl of Kent, brother to William the Conqueror, by his great power and favor about the year 1071. Non modo terras, sed & libertates Ecclesiae Cantuariensis, nullo ei resistente multipliciter invaserat, oppresserat, tenebat, before Lanfranc his investiture in this See. Lanfranc being made Arch-Bishop, and informed of this rapine, complained thereof to the King ; whereupon King William, Anno 1074. Praecepit Rex, quatenus adunatis PRIMORIBUS, & probis viris, non solum de comitatu Cantiae, sed & de aliis Comitatibus Angliae, querelae Lanfranci in medium ducerentur, examinarentur, determinarentur. Disposito ita{que} apud Pinnedene Principum Conbentu Galfridus Episcopus Constantiensis, ( Vir ea tempestate praedives in Anglia) Vice Regis Lanfranco justitiam de suis querelis strenuissime facere jussus, fecit : Lanfrancus enim valida ration subnixus Ex Communi omnium Astipulatione et Iudicio, ibi cuncta recuperavit, quae ostensa sunt antiquitus ad jura Ecclesiae Christi Cantuariensis pertinuisse, tam in terris, quam in diversis consuetudinibus ; he there recovering no less than five and twenty Manors, besides smaller Farms and parcels of Lands which Odo and others had seised upon in several Counties, and restoring them to the Church, in this Assembly. Gervasius Doroberniensis, writes thus of it. In Congregatione illa Famosa Nobilium Angliae & Seniorum quae ex praecepto Regis facta est apud Pinendene, dirationavit Lanfrancus & recuperavit terras ablatas, libertates & consuetudines revocavit; Et sicut Rex tenet libere consuetudines sibi debitas in terris suis, ita Archiepiscopus & Ecclesia Cantuariensis in omnibus locis tenent homines, suas consuetudines, terras, jura, & libertates, secundum cartas Regum. The whole Plea and Proceedings in this Parliamentary Assembly at Pinendene are recorded in the Leiger-Book of the Church of Rochester, and published by Mr. Selden, ad Eadmerum & Notae & Spicilegium, p. 197, 198, 199. It continued three whole days: The Names of the Bishops, Nobles, and BARONS present at it, are there recorded; and it concludes thus; Hujus placiti multis testibus multisque rationibus determinatum finem post quam Rex audivit; landavit, laudans, cum consensu omnium Principum suorum confirmabit, & ut deinceps incorruptus perseveraret, firmiter praecepit ; so that the King and Nobles were the Judges in this great Plea and controversy, and both adjudged and perpetually ratified what was therein adjudged to the Church of Canterbury, both in Lands, Customs, Liberties.
Eadmerus writes, that at another time, Odo by the Kings permission, placitum instituit contra saepefatam Ecclesiam, & tutorem ejus patrem Lanfrancum, & illuc omnes quos peritiores legum, & usuum Anglici regni gnarus adduxit; Cum igitur ad ventilationem causarum ventum esset, omnes qui tuendis Ecclesiae causis qua{que} convenerant in primo congressu ita convicti sunt, ut in quo ease tuerentur simul amitterent: Lanfranc being then absent, and not using to be present at such Pleas, nisi necessitas summa urgeret, being at his study, and informed of this evil success, was nothing dejected at it, sed dicta adversariorum non recte processisse asseruit, & ideo cuncta in chrastinum induciari praecepit. Placitum mane ipsemet hilaris intrat, suas itaque causas quodam exordio quasi à rebus quae tractatae fuerant vel tractandae penitus alieno▪ cunctis stupentibus orsus, ita processit, ut quae super eum pridie dicta fuerunt sic devinceret & inania esse monstraret, ut donec Vitae presenti superfuit, nullus exurgeret qui inde contra eum os aperiret,
In the year 1072. There falling out a difference at Rome between the two Arch-Bishops, Lanfranc of Canterbury, and Thomas of York, about the subjection which Lanfranc demanded of this Thomas and his Church of York to the See of Canterbury, and Pope Alexander the xi. quia consuetudinibus, & privilegiis ac privatis Episcopatus institutis certius, quam jure scripto definiri posse videbatur; decretum est à Papa, ut a Rege et Regni Proceribus Dijudicaretur. Whereupon the King, Bishops, Abbots and Nobles assembling together in Windsor Castle, determined this controversy between them, against the Arch-Bishop of York, and made a final DECREE therein, at the Feast of Pentecost, ratified with the subscriptions of the King, Queen, both the Arch-Bishops, all the Bishops, and sundry Abbots; recorded at large in William of Malmesbury; & Antiquitates Ecclesiae Brittannicae, where they who please may peruse it.
This controversy about Primacy, subjection and canonical obedience, being afterwards renewed, and eagerly prosecuted between Anselm, Arch-Bishop of Canterbury, and Thurstan of York, was again discussed and determined in a Parliamentary Council at Salisbury by King Henry the first, the Bishops, Abbots and Nobles of the whole Realm. As I have formely evidenced, p. 165, 166, 167. After this there arising the like difference and contest between Arch-Bishop Anselm and Gerard of York about his oath of subjection and obedience to the Arch-Bishop and Church of Canterbury, Anno 1107. it was again resolved in another Parliamentary Assembly held that year by King Henry the first, the Bishops, Abbots, Great men and Nobles of the Realm, as you read before, p. 173. Anno 1109. there sprung up another • ot contest between Arch-Bishop Anselm, and Thomas Elect of York, about the oath of subjection and canonical obedience which was again debated: and after Anselm's death again debated and finally settled in another Parliamentary Council, by the King, Bishops, Nobles and Barons of the Realm, of which at large before, p. 174, 175, 176, 177. The same Debate coming again between Ralph, Arch-Bishop of Canterbury and Thurstan of York, after his return from Exile Anno 1121. was again concluded, omnium Concilio Episcoporum, Principum & Procerum Regni, p. 180.
After many years intestine bloody wars between the perjured Usurper King Stephen, Mawde, and Duke Henry her Son, for the Crown of England, Anno 1153. apud Walingford in conventu Episcoporum et aliorum Regni Optimatum, there was a final accord made between Stephen and Henry, touching the inheritance and descent of the Crown, that Stephen should adopt and constitute Henry for his son, heir, and successor to the Crown of England immediately after his death, which Stephen should enjoy during his life, yet so, as that Henry should be chief Justice and Ruler of the Kingdom under him. This accord made between them by the Prelates, Earls, and Barons of the Realm, was ratified by King Stephens Charter, and subscribed by all the Bishops, Earls and Barons in their Parliamentary Council at Walingford.
The difference and suit between King Henry the 2d. and Roderic King of Conact in Ireland, touching his Kingship, Royalties, Dominions, Services, Homage, Loyalty, and Tribute to King Henry, were heard, decided and a final agreement made between them in a great Parliamentary COUNCIL held at Windeshores, Anno 1175. wherein King Henry the 2d. and his Son, with the Arch-bishops, Bishops, Earls and Barons of England (without any Commons) were present, who made and subscribed this agreement, recorded at large in Houeden where you may peruse it.
King Henry the 2d. Anno 1177. Celebrato generali CONCILIO apud Northampton after the feast of St. Hilary (by the advice of his Nobles) restored to Robert Earl of Leicester, all his Lands on this side and beyond the Sea, as he had them fifteen days before the War, except the Castles of Mounsorel and Pasci. He likewise therein restored to Hugh Earl of Chester all the lands which he had fifteen days before the war, and gave to William de Abbine Son of William Earl of Arundel in the County of Southsex. And in the same Council Dean Guido resigned into the hand of Richard Arch-Bishop of Canterbury, the deanery of Walteham, and all his right which he had in the Church of Walteham, quietum clamavit simpliciter & absolute; similiter fecerunt canonici seculares de Walteham, de praebendis suis, resignantes ease in manis Archiepiscopi, sed Dominus Rex dedit eis inde plenariam recompensationem, ad Domini Cantuariensis Archiepiscopi aestimationem. Deinde Dominus Rex authoritate Papae Domini, instituit in eadem Ecclesia de Walteham, canonicos regulares de diversis domibus Angliae sumptos, & constituit Walterum de Garent, canonicum sumptum de Ecclesia de Osencie, Abbatem primum super congregationem illam, & magnis redditibus, & domibus pulcherrimis dotavit illos. And then he expelled the Nuns out of the Monastery of Ambresbury, for their incontinency, and distributed them into other Nunneries, there to be kept more strictly under restraint, and gave the Abby of Ambresbury to the Abbess and house of Frum Everoit, to hold it forever.
Sanctius King of Navar, and Alfonso King of Castile, in the year 1177. submitted the differences between them concerning certain Lands, Territories, Towns and Castles, to the determination of King Henry the 2d. who thereupon summoned a Parliamentary Council of his Bishops, Earls, Nobles and Barons, to hear and decide it by their advice: Wherein the case being propounded, debated and opened before them by the Ambassadors and Advocates of both Kings; appeared to be this. That King Sanctius during the minority of King Alphonsus, an Orphant, his Nephew, Pupil, and innocent from any crime, unjustly and forcedly took from him without any demand, hearing or Title, divers Territories, Towns and Lands there specified, which his Ancestors had enjoyed, and of right descended to him, which he forcibly detained; Whereof he demanded restitution and damages. On the other side, Sanctius complained, that Alphonsus the Emperor, Father of this Alphonsus, had by force of arms, unjustly dispossessed his Grandfather of the Kingdom of Navarre, after whose death Garsias his Nephew, and next heir by the help of his friends and subjects recovered the greatest part thereof from the Emperor, but not all. Who dying, leaving his Son Alphonso an infant, with whom Sanctius made a league for ten years; Alphonso during the League took by force of arms, divers Castles, Towns and Lands from Sanctius, being his inheritance; who thereupon demanded restitution both of the Castles, Towns, Lands, and Territories taken from his Grandfather by Alphonsus his Father, and from himself by Alphonsus, together with the main profit of the latter, quia sine ordine judiciario ejectus est; King Henry having fully heard their cases; by the Advice and Assent of his Bishops, Earls and Barons, adjudged , that both these Kings should make mutual restitution, of what had been forcibly taken from either party, together with the mean profits and damages for part of them, by an award and judgment under his Great Seal, subscribed by all his Bishops, Earls and Barons, which recites: super quaerelis vero praetaxatis de castellis & terris, cum omnibus terris & pertinentis suis hinc inde violenter et unjust ablatis ; cum nichil contra Violentiam utrinque objectam à parte alterutra alteri responderetur, nec quicquam quo minus restitutiones quas petebant faciendas essent, alligaretur Plenariam utrinque parti supradictorum quae in jure petita erant fieri restitutionem adjudicabimus. A clear Parliamentary resolution and judgment in point, That Territories, Lands, Towns, Castles injuriously taken by one King from another by force of arms and war, without just Title to them, ought in Law and Justice to be restored to the right heirs and owners of them, and that Conquest, and the longest Sword, are no good Titles in Law or conscience against the right heir or inheriter ; which I desire those Sword-men and Lawyers, who now pretend us a conquered Nation, determine Conquest, or the longest Sword, a just Title to the Crowns, Lands, Revenues, Offices, Inheritances, Houses, Estates of other men now sadly to consider, together with the sacred Texts, Hab. 7. Micah 2.1, 2, 3, 4, 5. Job 20.10, 18, 19, 20. Obad. 10. to 17. Ezek. ch. 19. & 35. Isa. 33.1. 1 King. 21.1. to 25. Matth. 21.33, to 41. Luk. 20.14, to 17. ch. 19.8. Judge. 17.2, 3, 4. Exod. 22.1, to 16. Levite. 6.4, 5. ch. 24.17, to 22. ch. 25.27, 28. Judge. 11.12, 13. 1 Sam. 12.3, 4. 2 Sam. 9.7. ch. 12.5, 6. ch. 19.9, to 43. 1 Sam. 7.13, 14. 2 King. 14.22. Ezra 1.7, 8, 9, 10, 11. ch. 6.5. which warrant the judgment and restitution they then awarded, together with this memorable Act of resumption of the Crown, Lands, Rents and Revenewes alienated and given away by King Stephen to many Lord's and Soldiers, to maintain his usurped Title, to be just.
King Henry the 2d. Anno 1155. Praecepit eacum omni integritate infra tempus certum a quibuscunque dete • toribus resignari, & in jus statumque pristinum revocari. Quidam vero indies car • as quas a Rege Stephano, vel extorserant, vel obsequiis emerant, qu • bus tuti forent, protulerunt; pleading them in bar against the Kings resumption. Qu • bus fuit a Rege responsum (and let those who have purchased or gotten any of the Crown Lands, Rents, Revenewes, by gift, or otherwise, now remember it) Quod car • ae Inbasoris praejudicium legitimo Principi minime facere deberent. Primo ergo indignati, deinde territi & consternati, aegre quidem, sed integre Usurpata, vel diu tanquam solido • ure detenta, omnia resignarunt ; their Charters being all adjudged void eisdemque instrumentis minime tuti esse potuerunt, as Nubrigensis and Brompton inform us.
The great and long suit between William de Stutevill and William de Moubray, which had continued many years in the Kings Courts▪ concerning the Barony of Moubray, was ended in a Parliamentary Council, by a final award there made between them; that William de Stutevil should release all his right and claim to the Barrony to William de Moubray, he giving him nine Knights fees, and twelve pounds Annual Rent for this release, cum{que} super hoc diu certatum esset, tandem (Anno 1200. the 2d. of King Johns Reign) concilio Regni et voluntate Regis, pax & finalis concordia facta est inter praedictos ; as Roger de Houeden relates, who records the agreement at large.
King Henry the 3d. Anno 1236. in a Parliamentary Council held at York, Consilio sultus Magnatum Regni , ended the controversy between himself and Alexander King of Scots, touching the Lands King John had granted him by his Charter in Northumberland, ratified by the subscriptions and assents of his Nobles, Earls, and Barons, Anno 1237. Rex scripsit omnibus Magnatibus suis , to appear before him and the Popes Legat at York de arduis negociis regnum contingentibus tractaturis, where the difference between King Henry the 3d. and the King of Scots, (summoned to be present at this Parliament) touching his Lands in England, were finally determined, and a firm peace made between them; the King of Scots being to receive three hundred pound lands a year in England, sine castri constructione, homagiumque Regi Angliae faceret, & faedus inter eos amicitiae sanciretur, & hoc se fideliter facturum Regi Angliae, & conservaturum juraret. After this Anno 1244. King Henry summoning all the Bishops, Abbots, and lay Barons to present all their military Services to him, marched with a great army to New-Castle against the Scots, who had fortified two Castles, harboured rebels against the King, and made a peace with France against their former Covenant and League: Where to avoid the effusion of Christian blood, which will cry to God for vengeance, congregata Vniversitate Angliae Nobilium apud memoratum castrum, tractatum est diligenter super tam arduo negotio, Concilio habito, circa Assumptionem beatae Maria, dligentissim • , Wherein the NOBLES made an agreement between the Kings of England and Scotland, Alexander King of Scots by his special Charter (recorded in Matthew Paris) promising and swearing for him and his Heirs, to King Henry, and his Heirs, quod in perpetuum bonam fidem eis servabimus pariter & amorem, &c. Most of the Prelates, Earls and Barons of Scotland, sealing the charter with their Seals, and swearing to observe it inviolably, as well as their King.
In the Parliaments of 18, 20, 21, 31, & 33. Ed. 1. There were many Pleas and Actions for Lands, Rents, and civil things as well as criminal, held before the King in Parliament, and adjudged, resolved in these Parliaments by assent of the King, and advice of the Lord's, the Kings Judges and Council learned in the Laws; there being a large Parchment Volume of them in the Tower of London, where all may peruse them, some of them being also entered on the dorse of the Clause Rolls of these years. Pasche 21. E. 1. Banco. Regis, Northumberland, Rot. 34. John le Machon a Merchant, lent a great sum of money to Alexander King of Scots, who dying, his Son and Successor refused upon petition to pay it: Whereupon he appealed to the King of England for right, propter suum supremum Dominium Scotiae: Thereupon the Sheriffs of Northumberland by the Kings command, accompanied with four men of that County, went into Scotland to the Scots King, and there personally summoned him, to appear in England before the King of England, to answerr this Debt: After which all parties making default at the day, the Merchant was amerced. The King of Scots afterward appeared before the King, but at the first time refused to answer; at last he desired respite to be given him that he might advise about it with his Council of Scotland, promising to appear at the next Parliament, and then to give his answer. And in Placit. coram Rege, Trin. 21. E. 1. Scotia, there is an Appeal to the King of England between subjects of Scotland in a civil cause, tanquam superiori regni Scotiae Domino. And Clauso 29. E. 1. dorso 10. there is a letter of all the Nobles in Parliament to the Pope, de Jure Regis in regne Scotia forecited, p. 127, 128. and Claus. 10. E. 3. dorso. 9. The King of Scots is styled, Vassallus Domini Regis Anglia.
It appears by Claus. 5. E. 2. M. 30. that in a Parliament held at Stanford. 3. E. 2. a business touching Merchandize, and a Robbery on the Sea was heard and decided before the King and Lord's in Parliament, between the Earl of Holland (who sent over a Proctor about it) and others. Claus. 8. E. 2. m. 15. The Petition of David Earl of Ascelos in Scotland ; by the Kings command, was read in full Parliament before the Prelates, Earls and Barones, that he might be restored to his inheritance in Scotland, to which it was answered by all their Assents, that his inheritance was forfeited by his Ancestors, for offenses by them committed, &c. but yet the King would give him some other Lands for it. In Claus. 12. E. 2. it appears, that the Popes Legate came into the Parliament, and petitioned the King and Lord's for a Legacy given by the Bishop of Durham, Patriarch of Jerusalem, lately dead: for which the King by assent of the Lord's, gave him remedy by a Writ out of the Chancery. Claus. 14. E. 2. m. 12. in the Schedula; there is a Judgment in Parliament by King Lord's and Council touching the Abby of Abingdon, and a composition formerly made between the Abbot, Prior and monks thereof, reversed, nulled, because inconvenient, Claus. 14. E. 2. m. 17. dorso, there is a case concerning a reprisal brought by appeal out of the Chancery into the Parliament before the King, Lord's and Council, and there heard and decided. And Claus. 15. E. 2. there are many cases and Writs touching Reprises.
In the Parliament of 1. E. 3. there were many Judgments given in sundry civil cases upon petitions; To the King and his Council, by the King Lord's and Council, extant in the bundle of Petitions, and Claus. Rolls of that year, and those things that were proper for the Courts of Law and Chancery were referred to them to be there ended, Claus. 1. E. 3. m. 1. Upon the petition of Alice Gill, and Robert Carder to the King, Council, and Parliament, that they buying Corn in Abevil in France to transport to London, it was arrested by the Bailey of St. Valeric to the value of one hundred pounds at the suit of Will de Countepy of Crotye in Picardy, and delivered to him against their wills, because the Ship of the said Will ; was taken upon the Sea by the men of Bayon, which ship the petitioners finding in the port of London had arrested by writ out of the Chancery directed to the Sheriffs of London, until the said hundred pounds was paid them by the Merchant; the King and Council ordered (upon their petition) that the ship might not be discharged till the 100 l. was satisfied ; & that a Writ should be directed out of the Chancery to the Sheriffs of London, to do Justice upon the contents in the Petition according to the Law of Merchants. The like case of Reprise upon the Petition of Hugh Samson, is in 1. E. 3. rot. 5. In Claus. 1. E. 3. part 1. m. 10. There is a Judgment given by the Lord's and Council for the Bishop of Durham, touching the Liberties and Royalties of his Bishopric against the Kings revocation; where in sundry Petitions and answers in former Parliament under King Edward the 2d. are rehearsed, wherein he could have no right. Mem. 12. there is a Judgment given by the Lord's and Council in Parliament for the Bishop of York, his prisage and preemption of wines next after the King in the Port of Hull, and in Claus. 1. E. 3. P • . 2. m. 11. Claus. 4. E. 3. m. 9. remembered in the year Book of 6. E. 3. f. 50. So Claus. 2. E. 3. m. 20. in Schedula, there is Placitum in Parliamento, before the King and his Council of the Dean and Chapter of Litchfield, touching their Title to Camock, Claus. 14. E. 3. part 1. m. 41. Upon the Petition of the Bishop of Carlisle, it was resolved by the Lord's and Council in that, and sundry other Parliaments in the Reign of this King and his Father, non esse • uri consonum, that Churches and other things spiritual annexed to Archbishoprics and Bishoprics, should belong to the King and Guardians of the temporalties, but to the Guardians of the spiritualties, and so ordered accordingly; yea so was it resolved upon the Petition of the Bishop of Winchester to the King and his Council in the Parliament of Claus. 1. E. 3. rot. 9. dorso Where coram Rege et Magno Concilio concessum est et concordatum, quod custod • s temporalium Episcopatus, non se intromittant amplius temporibus vacationum hujusmodi fructibus Ecclesiarum, de Estanmer, & Hamoldan, annexed to the Bishopric of Winchester.
In the Parliament of 14. E. 3. Sir Geoffrey Stantens case, upon his Petition to the King and Lord's in Parliament, the Justices of the Common Pleas came with the record of his case, which had long depended before them in the Court of Common Pleas, which being read and debated in the presence of all the LORD'S, Justices and others of the Kings Council (their assistants in this case of Law) they resolved, that the Son being a stranger might aver, that his Father who levied the fine, had nothing in the Lands; and that the Wife in this case could not vouch her Husband. And thereupon a Writ under the great Seal was sent to the Judges by the Lord's order, to give judgment accordingly. Claus. 35. E. 3. m. 40. A villain commits fellony, and is attainted after that the Lord had seised his goods, whereupon his goods were prized and seised on for the King, notwithstanding the Lord's seisure; upon a Petition in Parliament, It was resolved by the Lord's and Council, that it was just the goods should be restored to the Lord, if they were not seised fraudulently to prevent the Kings seisure of them. And a Writ of Restitution was thereupon awarded, per ipsum Regem et per Petitionem in Parliamento.
In the 6. year of King Richard the 2d. it was agreed between the Duke of Lancaster, and the Scots in the Marches, that for the benefit of both parties▪ ut • de cater • ipsi nee Anglici vexaren • ur per tot labores & expensas, sed singulis annis certi utriusque gentis destinarentur ad Parliamentum Regni utriusque, qui et injurias acceptas proferrent in medium, & emendas acciparent secundum quantitatem damu • rum per Judicium Dominorum, (here the Lord's both in the Parliament of England and Scotland are made sole Judges of injuries and damages done by Scots or English upon one another in the Marches:) Quia vero Scoti ad Parliamentum Londoniis (Anno 1383.) supersederunt venire juxta conductum, & insuper damna interim plura Borealibus praesumpserunt infer, &c. decretum est per Parliamentum; ut frangenti fidem, fides frangatur eidem. Et concessae sunt Borealibus commissiones congregandi virtutem exercitus, & Scotis resistendi, & damna pro damnis inferendi, quoties contingeret Scotos irrumpere, vel hostili m • re partes illas intrare ▪
In the Parliament of 4. H. 4. n. 9. Upon the complaint of Sir Thomas Pomeroy and his Lady against Sir Philip Courtney and others forcible entry into several Lands and Manors in the Country of Devon. The King and Lord's adjudged, that the said Sir Thomas should enter into the said Manors and Lands, if his entry were lawful, or bring his Assize, without all delays, at his election.
In the Parliament of 5. H. 4. n. 41, 42, 43, 44. in a case concerning Manors, and certain Lands in the County of Cornwall, between the Prince, and John Cornwall, and the Countess of Huntingdon his wife, the King and Lord's gave Judgment, that the Prince should • e restored to the said Manors and Lands being parcels of the Dutchey of Cornwall, and that the Prince after seisin had, should regrant them unto them, which was done accordingly in Parliament. In 6 H. 4▪ n. 28. Upon the Petition of the Prior of Coventry, the King granteth by Assent of the Bishops and Lord's, that no man do break the head of their Conduit, nor cast any filth into their water called Sherbou • n, on pain of ten pound, and treble damages to the Prior.
In the Parliament of 9. H. 5. n. 12. Upon long debates of the Lord's and Justices, it was resolved by them, that the Abbot of Ramsy should have no prohibition against Walter Cook, parson of Somersham, who sued for Tithes of a Meadow called Crowland Mead, in the hands of the Abbots Tenants.
In the great case of Precedency, between the Earl Marshall, and Earl of Warwick, in the Parliament of 3. H. 6. n. 10, 11. &c. The Lord's being to be Judges of the same, suspended both of them from sitting in the house, till their case was fully heard; and they all (voluntarily) swore on the Gospel, that they would uprightly judge the case, leaving all affection.
In the Parliament of 11. H. 6. n. 32, 33, 34, 35. Upon a Petition, the King and Lord's in Parliament, adjudged, the Dignity, Seigniory, Earldom of Arundel, and the Castle and Lands thereunto belonging to John Earl of Arundel, who proved his Title thereto by a deed of Entayle, against the Title of John Duke of Norfolck, who laid claim thereunto. And in the Parliament of 39 H. 6. n. 10. to 33. The claim of the Duke of York, and his Title to the Crown of England, against the Title of King Henry the 6 th. was exhibited to the Lord's in full Parliament; the Lord's upon consultation willed it to be read amongst them, but not to be answered without the King. The Lord's upon long consultation declared this Title to the King, who willed them to call his Justices, Sergeants and Attorney to answer the same. Who being called accordingly, utterly refused to answer the same: Order thereupon was taken, That every Lord might therein freely utter his conceit without any impeachment to him. In the end there were five objections made against the Dukes Title, who put in an answer to every of them; which done, the Lord's upon debate, made this order and agreement between the King and Duke. That the King should enjoy the Crown of England during his life; and the Duke and his heirs to succeed after him. That the Duke and his two sons should be sworn, by no means to shorten the days, or impair the preeminence of the King during his life; That the said Duke from thenceforth shall be reputed and styled to be, the very Heir apparent to the Crown, and shall enjoy the same after the death or resignation of the said King. That the said Duke shall have hereditaments allotted to him and his sons of the annual value of ten thousand marks. That the compassing of the death of the said Duke shall be Treason. That all the Bishops and Lord's in full Parliament shall swear to the Duke, and to his heirs in form aforesaid. That the said Duke and his two sons shall swear to defend the Lord's for this agreement. The King by Assent of the Lord's (without the Commons)) agreeth to all the Ordinances and accords aforesaid; and by the Assent of the Lord's, utterly repealeth the statute of intayle of the Crown made in 1. H. 4. so always as hereafter there be no better Title proved, for the defeating of their Title and this agreement by the King. After all which the said Duke, and the two Earls his sons came into the Parliament Chamber before the King and LORD'S, and sware to perform the award aforesaid, with protestation, if the King for his part duly observed the same, the which the King promised to do. All which was enrolled in the Parliament Rolls. Lo here the Lord's alone without the Commons, judge and make an award between King Henry the 6th. and the Duke of York, in the highest point of right and title that could come in question before them; even the right and title to the Crown of England, then controverted and decided, the King and Duke, both submitting and assenting to their award, and promising, swearing mutually to perform it; which award when made▪ was confirmed by an Act passed that Parliament, to which the Commons assented, as they did to other Acts and Bills.
And here I cannot but take special notice of God's admirable Providence and retaliating Justice, in the translation of the Crown of England from one head, family of the royal blood, to another, by blood, force, war, treason, and countenance of the Authority of the temporal and spiritual LORD'S and COMMONS in Parliament, in the two most signal presidents of King Edward, and King Richard the 2 d. which some insist on, to prove the Commons Copartnership with the Lord's in the power of Judicature in our Parliaments, the Histories of whose Resignations of their Regal Authority and subsequent depositions by Parliament, I shall truly relate.
Anno 1326. the 19. of Ed. 2d. Queen Isabel returning with her Son Prince Edward, and some armed forces from beyond the Seas into England, most of the Earls and Barons (out of hatred to the Spencers and King • repaired to them, and made up a very great army: The King thereupon proclaimed, that every man should resist, oppose, kill them (except the Queen, Prince and Earl of Kent, which they should take prisoners if they could) and neither hold any correspondency with them, nor administer victuals, nor any other assistance to them, under pain of forfeiting their bodies & estates. But they prevailing, and the King being deserted by most, he fled into Wales for shelter: Whereupon Proclamation was made in the Queens army every day, that the King should return and receive his Kingdom again, if he would conform himself to his Leiges. Quo non comparente Magnas • es Regni, Here • ordiae Concilium inje • unt, in quo filius Regis Edwardus, factus est Cus • os Angliae communi Decreto: cui cuncti tanquam Regni custodi fidelitatem fecerunt per fidei sacramentum. Deinde Episcopum Norwicensem fecerunt Cancellarium, Episcopum vero Wintoniensem regni Thesaururium statuerunt. Soon after the King himself, with most of his evil Counselors were taken prisoners, being betrayed by the Welch in whom they most confided. Hagh Spencer, Simon Reding, Baldoik, and others of the Kings party being executed at Hereford, Anno 1327. the King came to London about the feast of Epiphany, where they were received with great joy and presents. Then they held a Parliament wherein they all agreed, the King was unworthy of the Crown, and fit to be deposed, for which end there were certain Articles drawn up against him; which Adam de Orleton Bishop of Winchester thus relates, in his Apology (i) Ea autem quae de Consilio et assensu omnium Praelatorum, Comitum et Baronum, et totius Communitatis dicti Regni concordata & ordinata fuerunt contra dictum regem ad amotionem suam a regimine regni, contenta sunt in instrumentis publicis Reverendo patre domino J. Dei gratia nunc Cantuariensi electo, tunc Wintoniensi Episcopo et Angliae Thesaurario, c • nceptis et dictatis, & manu magistri Willielmi de Mees Clerici sui Secretarii & publici Notari conscriptis et in publ • cam formam redactis. Quam quidem concordiam ad mei excusationem duxi present bus inferendam, quae talis est.
Accorde est, qe sire Edward fiz aisne du roy, ait le government del Roialme, et soit rois Coronne par les Causes qe sensiwent:
1. Primerment, Pur ceo qe la person lie Roy nest pas suffisaunt de governer. Car en touz son temps ad il este mene et govern par autres qe lie ount mavoisement consaillez, a deshoneur de lie, et destruction de s • int Eglise, et de tout son people, saunz ceo qe il le vousist veer ou conustre le quel il sust bon ou mavoys, ou remedy mettre, ou fair le vousist quant il fuist r • quis par les grants et sages de s • n Roialme, ou suffrir qe amende fuist faite.
2. Item Par tout son temp, 〈◊〉 se voloit doner a bon consail no le croire, ne a bon governeme • t de son Roialm, meys se ad done toux jours as ouraignes et occupations nient covenables, entre lessaunt lesploit des bosoignes de son Roialme,
Item, Par defaute de bon government ad il perdu le▪ Roialme Descoce et autres terres et seignuries en Gascoygne & Hytland, les quex son pere li lessa en pees & amiste lie Roy de France, et detz moults des autres grants.
4. Item, Par sa fierte & qualte & par mavoys consail ad il destruit seint Eglise, & les persons de seint Eglise tenuz en prisoun les uns, Et les alires en destresce, et auxint • lusours grants et nobles de la terre mys a hountose m • nt, enpris • nez, exul • tz & disheritez.
5. Item, La ou il est tenuz par son serement a fair droit a toux, il ne bad pas volu fair, pur son proper prof • it et convetise de lie & de ces mavois con • saili es • e ount este pre • de lie, Ne ad garde les autres pointz del serement qil fist a son corounement, si come i • feust tenuz.
6. Item, Il deguerpist son Royalme, et fist taunt come en lie fust qe son Roialme & son po • ple fust perduz, & qe pys est, pur la crualte de lie & defaute de sa person il est trove incorrigible sauntz esperaunce de amendment: les quex chooses fount si notoires qil ne poount estre desdi • z ▪
The form and instrument of his deposition is thus recorded by Ranulp▪ Cistrensis, and Henry de Knyghton: Also that year in the Octaves of Twelfth day was made a Parliament at London : There BY ORDINANCE with a solemn message is sent to the King that was in prison, 3 Bishops, 3 Earls, 3 Barons, 2 Abbots, 2 Justices, for to resign to the King that was then in ward, the homage that was make to him some time, for they would no longer have him for their Lord; One of them Sir William Trussel Knight, and PKOCURATOR OF ALL THE PARLIAMENT, spake to the king in the name of all the other, and said: I William Trussel in the name of all men of the lond of England, and of all the Parleament Procurator, I resign to thee Edward the homage that was made to thee sometime. And from this time forthward now following I defy thee, and pryve thee of all ryal power, and I shall never be tendant to thee as for King after this time. Also this was openly cried at London. The true form of his deprivation is thus recorded in the Chronicle of Leycester, and transcribed out of it by Henry de Kryghton in French: Jeo William Trussel Procurator dez Prelatez, Conrez, et Barons, et altrez Gentz en ma procuracye nomes, Eyantal ceo ployne & suffysant pour, e • Homages, et Fealtez au vous Edward Roy Dengleterre come all Roy avant ces • enres de par lez ditz persons en ma procuracye nomes renk et rebaylle sus a vous Ed. et deliver et face qui • ez lez persons avant ditz, en la me • l • our manere que ley et custom donnent, E face protestacion en nom de eaux; qils ne voillent deforms estre en vostre s • all • e, ne en vostre lyance, ne cleyment de vous come • e Roy • iens teni • . Encz vous teignent de • horse priveye person sans nule manere de • eale dignity. Cum haec Rex audisset, multum de fuis malefactis doluit, rugitus et lamenta emittens, eo quod per falsos et proditiosos consiliarios sic omni suo tempore ductus fuerat.
Thomas of Walsingham thus relates the proceeding. Convenit etiam illuc tota regni Nobilitas citata per prius ad Parliamentum tenendum ibidem trastino dicti • esti, ubi cuncti centuerunt regem indignum diademate, et propte • plures articulos deponendum, er Edwardum filium ejus primogenitum in regem unanimiter eligendum. Quod etiam consequenter factum fuit, et electio in aul • magna Westmonasterii publice divulgare, per quendam ex Magnatibus sapientem. Cui electioni consensit populus universus. Archiepiscopus vero Cantuari • e praesenti consensit electioni, ut omnes Praelati: & Archiepiscopus quidem assumpto themate, vox populi, vox Dei ; sermonem feci populo, exhortans omnes ut apud regem regum intercederent pro electo. Facto sermon discessum es • ▪ Ut autem notuit Reginae filli • ni electio, et viri dejectio, plena dolore (ut foris apparuit) sere mente alienata fuit. Edwardus quoque filius suus mate • no do • ori compassus, juravit, quod invito patre nunquem susciperet coronam regni. Idcirco communi decreto, ex parte totius regni tres Episcopy duo Comite • et duo Abbates, et de quolibet Comitatu regnitre milites, ac etiam de Londoniis et aliis civitatibus et magnis villis, ut praecipue de portubus, de qualibet certus raimerus perso • arum missi sunt ad regem apud Kenelworth, qui nuncia • ent electionem filii sui, et requirerent diligenter, quod renunciaret dignitati regiae et coronae, et permitteret eundem filium suum regnare pro eo; alioquin ipsi reddirent sibi homagia, et procederent in praetact • s. Rex autem ut haec audivit, • um stetu et ej • latu respondit; quod multum doluit de eo, quod sic demeruit erga populum s • i regni; et ab omnibus qui aderant veniam precabatur. Sed ex quo aliter el • e non potuit, gratias egit quod filium suum primogenitum elegissent. Nuncii vero ad Parliamentum Londonias rede untes cum regis respon • o et insigniis, plebem laetam fecerunt, mox tota regni Communitas Edwardum juvenem quatuordecim annos habentem, in regem promptissime admisserunt, et vicessimum diem Ianuarii, diem primum regni sui esse decreverunt, et in omnibus comitatibus pacem ejus proclamari fecerunt sub hac forma.
Edwardus Dei gratia Rex Angliae ; dominus Hiberniae, dux Aquitaniae, vicecomiti de N. salutem. Quia Dominus Edwardus nupet Rex Angliae, pater noster, de communi consilio et assensu Praelatorum, et Comitum, et Baronum, et aliorum Magnatum nec non Communitatum totius regni praedicti, spontanea voluntate se amovit a regimine dicti regni, volens et concedens, quod nos tanquam ipsius primogenitus, et haeres ipsius, regni gubernation • m et regimen assumamus. Nosque ipsius patris nostri beneplacito in hac parte de Consilio et avisiamento Praelatorum, Comitum et Baronum praedictorum annuens, gubernacula suscepimus dicti regni, et fidelitates, et homagia ipsorum Praelat. et Magnat▪ recepimus ut est moris. De sderantes igitur pacem nostram pro quiet et tranquillitate populi nostri inviolabiliter observari, tibi praecipimus, quod statim vifis praesentibus, per totam Ballivam tuam pacem nostram facias publice proclamari, universis et singulis ex parte nostra inhibendo, sub poena et periculo exhaeredationis et amissionis vitae et membrorum, ne quis dictam pacem nostram inf • ingere seu violare praesumat, sed quilibet actiones & quaerelas absque quacunque prosequatur, secundum leges et consdetudines regni nostri. Nos enim parati sumus, er semper erimus omnibus er singulis conquerentibus tam divitibus quam pauperibus in curiis nostris plenam justitiam exhibere. Teste meipso, &c. Calendas Febr. die dominica in vigilia purificationis.
The Proceedings and Articles against Rich. 2. and the manner of his Resignation, Deposition being somewhat mistaken, and not so fully related in our vulgar H • storians, I shall present you with the true Narration thereof out of the Parliament Roll itself where it is thus at large recorded.
Rotulus Parliamenti Summoniti & tenti apud Westmonasterium in festo Sanctae Fidis Virginis, anno regni Regis Henrici quarti post Conquestum primo, Membr. 20.
Les Record & process del renunciation du Roy Richard le Second apres le conquest & del acceptation de mesme la renunciationi, ensemblement ove la deposition de mesme le Roy Richard ensuent • y apres.
MEmorand. Quod die Lunae in festo sancti Michaelis Archangeli Anno Regni Regis Ricardi secundi 23, Domini Spirituales & Temporales, & aliae personae notabiles: videlicet, Dominus Richardus le Scrop, Archiepiscopus Eboracensis, Io. Episcopus Hereford, Hen. Comes Northumbr. & Radulfus Comes Westmorelandiae, Dominus Hugo le Burnel, Tho. Dominus de Berkley, Prior Cantuar. & Abbas Westmonasterii, Williel: Thyrninge Miles, & Johan. Markham Justiciarii, Tho. Stow, & Johan. Burbache, Legum Doctors, Thom. de Erpingham, & Tho. Gray Milites, Will. de Feryby, & Dionysius L • pham, Notarii publici: de quorundam Dominorum Spiritualium, & Temporalium, ac Justitiariorum & aliorum tam in Jure Civili & Canonico, quam in regni legibus peritorum, apud Westmonast. in loco consueto Concilii congregatorum assensu & avisamento ad actum subscriptum primitus deputati, ad praesentiam dicti Regis Ricardi infra turrim London. existentis circiter nonam pulsationem horologii accesserunt, & recitato coram eodem Rege per praedictum Comitem Northumbr. vice omnium praedictorum, sibi ut premittitur adjunctorum, qualiter idem rex alias apud Coneway in Northwallia, in sua libertate existens promisit Domino Thomae Archiepiscopo Cantuariensi & dicto Comiti Northumbr. se velle cedere, & renuntiare Coronae Angliae & Franciae, & suae regiae Majestati ex causis per ipsum Regem ibidem de sua inhabilitate, & insufficientia confessatis, & hoc meliori modo, & forma quibus facere poterit, prou • peritorum consilium melius duxerit ordinandum. Idem rex coram dictis Dominis & aliis superius nominatis, ad hoc benign respondens dixit, se velle cum effectu perficere quod prius in ea parte promisit. Desideravit tamen habere colloquium cum Henrico Duce Lancastriae, & praefato Archiepiscopo Cantuariensi consanguineis suis, antequam promissum suum hujusmodi adimpleret. Petivit tamen copiam cessionis per ipsum faciendae sibi tradi, ut super illa possit interim deliberare; qua quidem copia sibi tradita, dicti Domini, & alii ad sua hospitia recesserunt. Postea eadem die post prandium, dicto rege plurimum affectante praedicti Ducis Lancastriae adventum, & illum diutius praestolante, tandem idem Dux de Lancastria, Domini & personae superius nominati, ac etiam dictus Archiepiscopus Cantuariensis venerunt ad praesentiam dicti Regis in turri praedicta, Dominis de Roos, de Wiloghby, & de Abergeny, & pluribus aliis runc ibidem praesentibus. Et postquam idem Rex cum dictis Duce Lancastriae & Archiepiscopo colloquium habebat, ad partem vultu hilari hinc inde inter eos exhibito, prout circumstantibus videbatur, tandem dictus Rex accersitis ad eum omnibus ibidem praesentibus, dixit publice coram illis, quod paratus erat ad renuntiationem faciendam, & ad renuntiandum & cedendum secundum promissionem per cum ut praemittitur factum; Sie{que} incontinenti, licet potuisset ut sibi dicebatur ab aliis cessionem & renuntiationem in quadam schedula pargameni redactam per aliquem deputatum organum vocis suae fecisse, pro labor tam prolixo lecturae vitando, Idem tamen Rex gratanter, ut apparuit, ac hilari vultu schedulam illam manu sua tenens, dixit, semetipsum velle legere, & distinct prelegit eandem. Necnon absolvit ligeos suos, renuntiavit, & cessit, & juravit, & alia dixit, & protulit in legendo & le subscripsit m • nu sua propria, prout plenius continetur in dicta schedula, cujus tenor talis est.
IN NOMINE DEI, Amen. Ego Rich. Dei gratia Rex Angliae & Franciae, & Dominus Hiberniae, omnium dictorum Regnorum, & Domini • rum Archiepiscopos, Episcopos, & alios quoscun{que} Ecclesiarum Secularium, vel Regularium Praelatos cujuscun{que} dignitatis, gradus, status, seu conditionis existant; Duces, Marchiones, Comites, Barones, Vasallos, & Valvassor • s, & Ligeos homines meos quoscunq ecclesiasticos, vel seculares quocun{que} nomine censeantur, à juramento fidelitatis & homagii, & aliis quibuscun{que} michi factis, omni{que} vinculo ligeantiae, & Regaliae, ac Dominii quibus obligati mihi fuerint, vel sint, vel alias quomodolibet adstricti, absolvo; Et eos, & haeredes ipsorum, & successores in perpetuum, ab iisdem obligationibus, & juramentis, & aliis quibuscun{que} libero, relaxo, & quieto, & liberos, solutos & quietos ac immunes, quantum ad personam meam attinet, dimitto, ad effectum omnem juris qui ex praemissis sequi poterit, seu aliquo praemissorum, omni{que} Regia dignitati, ac majestati, & Coronae, neonon Domini • , & potestati dictorum Regnorum, & Dominii: aliis{que} Dominiis & possessionibus meis, seu mihi quomodolibet pertinentibus, seu competentibus quibuscun{que}, quocun{que} nomine censeantur infra Regna, & Dominia praedicta, vel alibi ubilibet constitutis, Omni{que} juri, & colori juris, ac titulo, possessioni ac dominio quae unquam habui, habeo, seu quovismodo habere potero, in iisdem, seu eorum aliquo, vel ad ea cum su • s juribus & pertinentiis universis, seu dependentibus qualitercun{que} ab eisdem, vel eorum aliquo, Necnon regimini, & gubernationi dictorum Regnorum & Dominiorum hujusmodi, & eorum administrationi, omnibus{que} & omnimodis mero & mixto imperio, ac jurisdictioni in iisdem regnis, & Dominiis mihi competentibus, vel competituris, nomini{que}, honori, ac Regaliae, & Celeitudini Regiis, pure, sponte, simpliciter, & absolute, melioribus modo, via, & forma quibus poterit in his scriptis renuntio, & ea in totum resigno, acre, & verbo demitto, & iisdem cedo, & ab iisdem recedo in perpetuum. Salvis successoribus meis regibus Angliae in Regnis, & Dominiis, & • aeteris omnibus praemissis in perpet • um, juribus in iisdem, seu eorum aliquo competentibus, vel competituris quibuscun{que}. Me{que} ad regimen, & gubernationem dictorum Regnorum, ac Dominiorum cum suis p • rtinentiis universis fateor, recognosco, reputo, & veraciter, ex certa scientia judico fuisse, & esse insufficientem penitus, & inutilem, ac propter mea demerita notoria non immerito deponendum. Et juro ad haec sancta Dei evangelia, per me corporaliter tacta, quod nunquam praemissis resignationi, renuntiationi dimissioni, & cessioni contraveniam, seu ea quomodolibet impugnabo facto, vel verbo, per me, vel per alium, vel per alios, seu contraveniri, vel impugnari permittam quantum in me est publice vel occulte; sed easdem renuntiationem, resignationem, dimissionem, & cessionem in perpetuum ratas & gratas habebo, & firmiter tenebo, & observabo in toto, & omni sui parte, sicut Deus me adjuvet, & haec sancta Dei Evangelia.
Et statim idem Rex renuntiationi, & cessioni praedictis, verbo tenus adjunxit; quod si esset in potestate sua, dictus Dux Lancastriae succederet sibi in Regno; sed quia hoc in potestate sua non dependebat ut dixit, dictos Eboracensem Archiepiscopum, & Episcopum Herefordensem, quos protunc constituit suos procuratores ad declarandum, & intimandum cessionem, & renuntiationem hujusmodi omnibus statibus dicti regni, rogavit ut intentionem, & voluntatem suam in • a parte populo nuntiarent, & in signum suae voluntatis, & intentionis hujusmodi, annulum auri de signeto suo, patenter de digito suo tunc ibidem extraxit, & digito dicti Ducis Lancastriae apposuit, Desiderans hoc ipsum ut asseruit, omnibus regni statibus innotesci. Quo facto, valefacientes hinc inde omnes turrim praedictam exieruntad sua hospicia reversuri.
In crastino autem, videlicet in die Martis in festo Sancti Hieronymi in magna aula apud West monasterium in loco ad Parliamentum tenendum honorifice praeparato, dictis Archiepiscopo Cantuariensi & Eboracensi, ac Duce Lancastriae, aliis{que} Ducibus, ac Dominis tam Spiritualibus quam Temporalibus quorum nomina describuntur inferius, populo{que} dicti regni tunc ibidem propter factum Parliamenti in magna multitudine congregato praesentibus; ac praefato Duce Lancastriae locum statui suo debitum, & solitum occupante, ac seed regali cum pannis auri solempniter praeparata, tunc vacua abs{que} presidente quocunque, supradictis Archiepiscopus Eboracensis suo & dicti Herefordensis Episcopy nomine juxta dicti Regis injunctum cessionem & renuntiationem per ipsum sic fuisse ut praemittitur factam, etiam cum subscriptione regiae manus, & tradition signeti sui publice declaravit, eandem{que} cessionem, & renuntiationem per alium, primo in Latinis verbis, postea in Anglicis legi fecit ibidem; & statim, ut fuerat interrogatum a statibus & populo ibidem praesentibus, primo videlicet ab Archiepiscopo Cantuariensi praedicto, cui ration dignitatis & praerogativae ecclesiae suae Cantuariae Metropoliticae, in hac parte competit primam vocem habere inter caeteros Praelatos & Proceres regni, si pro eorum interesse, & utilitate regni vellent renunciationem, & cessionem hujusmodi admittere: status{que} iidem, & populos reputantes ex causis per ipsum Regem in sua renunciatione, & cessione praedictis significatis, hoc fore multum expediens, renuntiationem, & cessionem hujusmodi singuli singillatim, & in communi cum populo unanimiter▪ & concorditer admiserunt. Post quam quidem admissionem fuerat publice ibidem tunc expositum, quod ultra cessionem & renunciationem hujusmodi ut praefertur admissam, valde forer expediens, ac utile regno praedicto, pro omni scrupulo, & sinistra suspicione tollendis, quod plurima crimina, & defectus per dictum regem circa malum regimen regni sui frequentius perpetrata, per modum articulorum in scriptis redacta, propter quae ut idem asseruit, in cessione facta per eum, esset ipse merito deponendus, publice legerentur, quod{que} essent populo declarata. Sic{que} maxima pars articulorum illorum erat publice perfecta tunc ibidem; quorum omnium articulorum tenor talis est.
Sequitur forma juramenti soliti & consueti praestari per Reges Angliae in eorum Coronatione, quod Archiepiscopus Cantuariensis ab eisdem regibus exigere & recipere consuevit, prout in libris pontificalium Archiepiscoporum & Episcoporum plenius continetur.
Quod quidem juramentum Ricardus Rex Angliae post Conquestum secundus in Coronatione sua praestitit, & ab Archiepiscopo Cantuariensi erat receptum; & illud idem juramentum dictus Rex postmodum iteravit, prout in rotulis Cancellariae plenius reperiri poterit de recordo.
Servabis ecclesiae Dei, & populo pacem ex integro & concordiam in Deo secundum vires tuas. Respondebit, Servabo. Facies fieri in omnibus judiciis tuis aequam & rectam justiciam & discretionem in misericordia & veritate secundum vires tuas. Respondebit, Faciam. Concedis justas leges & consuetudines esse tenendas, & promittis per te esse protegendas, & ad honorem dei corroborandas quas vulgus elegerit, secundum vires tuas. Respondebit, Concedo & promitto.
Adjiciantur{que} praedictis interrogationibus quae justa fuerint; Praenunciatis{que} omnibus confirmet Rex, se omnia servaturum Sacramento super altare praestito coram cunctis.
Inprimis, Objicitur Regi Richardo quod propter malum regimen suum, videlicet bona & possessiones ad Coronam suam spectantia, etiam personis indignis donando, & indiscrete dissipando, & ob hoc collectas, & alia onera gravia & importabilia populo sine causa imponendo, necnon alia mala innumerabilia perpetrando, alias de assensu, & mandato suis per totum Parliamentum ad gubernationem regni certi Praelati, & alii Domini temporales erant electi, & assignati, qui totis viribus suis circa justam gubernationem regni propriis sumptibus suis fideliter laborarent; tamen Rex facto per eum Conventiculo cum suis complicibus, dictos Dominos tam Spirituales quam Temporales circa Regni utilitatem occupatos de alta proditione impetere proponebat, ac Justitiarios Regni ad suum nefandum propositum corroborandum metu mortis, & cruciatus corporis violenter attraxit, dictos Dominos destruere satagendo.
2 Item, Idem Rex nuper apud Salopiam coram se, ac aliis sibi faventibus venire fecit quamplures, & majorem partem Justitiariorum cameraliter, & eos per minas▪ & terrores varios, ac etiam metus qui possunt cadere in constantes, induxit, fecit, & compulit sigillatim, ad respondendum certis quaestionibus pro parte ipsius Regis factis ibidem tangentibus leges regni sui, praeter, & contra voluntatem eorum, & aliter quam respondissent, si fuissent in libertate sua, & non coacti▪ Quarum Responsionum color idem Rex proposuit processisse postmodum ad destructionem Thoma Ducis Gloucestria, & Comitum Arundel, & Warwick ac aliorum Dominorum, contra quorum facta & gesta praedictus Rex erat quamplurimum indignatus, maxim quia desiderabant eundem Regem esse sub bono regimine. Sed divino nutu obstante, resistentia & potentia dictorum Dominorum Rex propositum suum hujusmodi perducere non potuit ad affectum.
3 Item, Cum Domini Temporales ejus malitiae ac dolositati seipsos defendendo restitissent, dictus Rex diem Parliamenti sui pro justitia eis, & aliis Regni-colis in hac parte ministranda praefixisser, dicti{que} Domini Temporales in suis domibus sub spe & fiducia Parliamenti praedicti quiet, ac pacifice resedissent: Rex clanculo Ducem Hiberniae cum suis litteris, & vexillo ad partes Cestriae destinavit, ibi{que} nonnullas gentes ad arma commovit, & contra dictos Dominos, & magnates Regni, & Reipublicae servitores insurgere fecit, vexillum eius contra pacem per cum juratam publice erigendo; unde homicidia, captivitates, dissentiones, & alia mala infinita in totum regnum secuta fuerunt quare perjuriam incurrebat.
4 Item, Licet dictus Rex omnem offensam dictis Duci Gloucestriae, & Comitibus Arundel, & Warwick, & omnibus aliis sibi in hujusmodi factis assistentibus, & aliis in pleno Parliamento de assensu ejusdem perdonasset pacis{que} & amores signa per plures annos ei • dem Duci, & Comitibus, & aliis vultum hilarem & benignum exhibuisset; Idem tamen Rex semper & continue fell in cord gerens, tandem opportunitate captata dictum Ducem Gloucestriae ipsius Regis avunculum, necnon bonae memory Edwardi nuper Regis Anglia filium, & Conestabularium Angliae dicto Domino Regi cum pro cessione solempni humiliter occurrentem, dictos{que} Comites Arundell & Warwick capi, & arestari fecit, & ipsum Ducem extra regnum Angliae us{que} ad Villam Calesiae duci fecit, & ibidem incarcerari, & sub custodia Comitis Nottingham unius ipsum Ducem appellantium detineri, & sine responsione & processu quocun{que} legitimo occulte suffocari, strangulari,, & murdrari inhumaniter, & crudeliter fecit, Comitem{que} Arundel, tam carram de dicta perdonatione generali, quam cartam perdonationis postea sibi concessam allegantem, & justitiam sibi fieri petentem, in Parliamento suo, viris armatis, & sagittariis innumeris vallato, per impressionem populi per eum ad hoc collecti dampnabiliter decapitari fecit; Comitem{que} Warwick, & Dominum de Cobham perpecuis carceribus mancipavit, eorum terras, & tehementa, tam in feodo simplici quam in feodo talliato de se & haeredibus suis contra justitiam & leges regni sui & juramentum suum expressum nequiter confiscando, & eorum appellantibus concedendo.
5 Item, Tempore quo idem Rex, in Parliamento suo fecit adjudicari Ducem Gloucestriae, & Comites Arundell, & Warwick, ut liberius possit exercere crudelitatem in eosdem, & voluntatem fuam injuriosam in aliis adimpler • , sibi attraxit multitudinem magi • am malefactorum de Comitatu Cestriae, quorum quidam cum Rege transeuntes per regnum, tam infra hos pitium Regis, quam extra ligeos regni crudeliter occiderunt, & quosdam verberaverun • vulneraverunt, & depraederunt bona populi, & pro suis victualibus solvere recusarunt, & uxores, & alias mulieres rapuerunt, & violaverunt, & licet super eorum hujusmodi excessibus graves querimoniae deferebantur ad audientiam dicti Domini Regis, idem tamen Rex super hiis justitiam, seu remedium facere non curavit, sed favebat iisdem gentibus in maleficiis eorundem, confidens in eis, & eorum praefidio contra quoscun{que} alios regni sui, propter quod fideles regni sui magnam commotionis & indignationis materiam habuerunt.
6 Item, Licet dictus Rex per brevia sua proclamari fecerit per totum regnum suum, quod Avunculum suum Ducem Gloucestriae, & Comites Arundell & Warwick capi fecerit, & arrestari, non pro aliquibus congregationibus, & equitationibus per eos infra regnum. Anglia factis, sed pro quampluribus extortionibus oppressionibus & aliis contra Regaliam suam, & Regiam Majestatem postmodum factis & perpetraris per cos, quod{que} non erat intentionis ipsius regis quod aliquis de familia praedictorum Ducis Gloucestriae, ad Comitum Arundell, & Warwick seu eorum qui in comitiva seu tempore congregationis, & equitationis praedictarum fuit, ea occasion molestetur aliqualiter, seu gravetur: Idem tamen Rex tandem in Parliamento suo dictos Dominos non pro extortionibus, oppressionibus aut aliis praedictis impetiit, sed pro congregationibus & equitationibus supradiotis eos adjudioavit ad mortem, & quamplures de familia eorudem Dominorum, & aliorum qui in comitiva sua tempore congregationis, & equitationis fuerunt, metu mortis compulit fines & redemptiones facere, ut pote traditores, vel proditores, ad gravem destructionem quamplurium hominum de populo suo. Sic{que} dictos Dominos & eorum familiares hujusmodi & populum regni sui callide, fraudulenter & malitiose decepit.
7 Item, Postquam quamplures de personis illis facientibus fines & redemptiones hujusmodi impetraverunt à Rege literas s • s patentes pardonationis plenariae in praemissis, nullum commodum ex hujusmodi literis perdonationis poterant reportare, donec novos fines, & Redemptiones pro eorum vita conservanda fecislent, unde fuerant quamplurimum depa • perati; pro quo nomini, & statui Regis fuerat plurimum derogatum.
8 Item, In Parliamento ultimo tento apud Salopiam idem Rex proponens opprimere populum suum procuravit subtiliter▪ & fecit concedi quod potestas Parliamenti de consensu omnium Statuum Regni sui remaneret apud quasdam personas, ad terminandum dissoluto Parliamento certas petitions in eodem Parliamento porrectas, protunc minime expeditas; Cujus concessionis color personae sic deputatae processerunt ad alia generaliter Parliamentum illud tangentia, & hoc de voluntate Regis, in derogationem Status Parliamenti, & in magnum incommodum totius regni, & pernitiosum exemplum. Et ut super factis eorum hujusmodi aliqualem colorem & authoritatem viderentur habere, Rex fecit Rotulos Parliamenti, pro voto suo mutari & deleri, contra effectum concessionis praedictae.
9 Item, Non obstante quod dictus Rex in Coronatione sua juraverit, quod fieri faceret in omnibus judiciis suis aequam & rectam justitiam & discretionem in miscricordia & veritate secundum vires suas: dictus tamen Rex abs{que} omni misericordia rigor • se inter caetera statuit, & ordinavit sub gravibus poenis, quod pro Henrico Duce Lancastriae relegato, pro aliqua gratia sibi facienda nulius rogaret, aut intercederet apud eundem Regem; In quo facto idem Rex contra charitatis vinculum operabatur, juramentum praedictum temere violando.
10 Item, Quamvis Corona • egni Angliae at jura ejusdem Coronae, ipsum{que} regnum • int ab omni tempore re • acto adeo libera, ut dominus summus Ponti • ex, nec aliquis alius extra regnum se intromittere debeat de iisdem: tamen praefatus Rex ad reborationem statutorum suorum erreneorum supplicavit Domino Papae, quod statuta in ultimo Parliamento suo ordinata confirmaret, super quo Dominus Rex literas Apostolicas impetravit, in quibus graves censurae proferuntur contra quoscun{que} qui dictis statutis in aliquo contravenire p • aesumpserint. Quae omnia contra Coronam, & dignitatem regiam, ac contra statuta, & libertates dicti regni tendere dinoscuntur.
11 Item, Licet Dominus Henricus nunc Dux Lancastriae billam suam, statum & honorem Regis concernentem ad ipsius Regis mandatum contra Ducem Nor fulci • proposuit, & eandem fuisset debite prosecutus, adeo quod juxta Regis ordinationem se ad duellum in omnibus paratum exhibuisset, prae • atus{que} Rex ipsum nunc Ducem Lancastriae, debitum suum in hac parte honorifice quantum in ipso fuerat implevisse pronuntiasset, & declarasset per decretum, & hoc coram toto populo ad duellum hujusmodi congregato fuisset publice proclamatum▪ Idem tamen Rex praedictum nunc Ducem Lancastriae, sine quacun{que} causa legitima ad decennium exlegari fecit & mandavit, contra omnem justitiam, & leges, & consuetudines regni sui ac jura militaria in • ac parte, perjurium dampna • ilitet incurrendo.
12 Item, Postquam dictus Rex gratiose concessit per literas suas patentes Domino Henrico nunc Duci Lancastria, quod in ipsius absentia dum fuerat exlegatus generales atturnati sui possent prosequi pro liberatione sibi facienda de quibuscun{que} haereditatibus, sive successionibus ipsum extunc contingentibus, & quod homagium suum respectuari deberet pro quodam fine rationabili faciendo, literas illas patentes injuriose revocavit, contra leges terrae perjurium incurrendo.
13 Item, Non obstante quod statuum erat, quod singulis annis Officiarii Regis cum Justitiariis, & aliis de Consilio Regis Vicecomites per omnes comitatus regni eligant, & nominarent Domino Regi secundum quod eorum discretioni, & conscientiae pro bono, & utilitate regni videbitur expedire: Idem Rex non nominatos aut electos hujusmodi, sed alios pro suo libitu voluntatis, quando{que} suos familiares, quando{que} tales quos scivit nolle resistor voluntati suae in Vicecomites fieri mandavit pro suo & aliorum commodo singulari, ad magnum gravaraen populi sui, & contra leges regni sui, perjurium notorie incurrendo.
14 Item, Tempore illo quo Rex praedictus petivit, & habuit à quampluribus Dominis & aliis de regno plures pecuniarum summas ex causa mutui, certo termino solvendas, Non obstante quod idem Rex per singulas literas suas patentes promisit bona fide singulis personis à quibus mutuo recepit pecunias illas, quod eis limitato termino praedicto resolveret hujusmodi pecunias mutuatas; promissionem suam hujusmodi non adimplevit, nec de pecuniis illis est hactenus satisfactum, unde creditores hujusmodi valde gravantur, & non tam illi, quamplures alii de regno regem reputant infidelem.
15 Item, Ubi Rex Angliae de proventibus regni sui, & patrimonio ad Coronam suam spectante possit honest vivere abs{que} oppressione populi sui, dummodo regnum non esset guerrarum dispendio oneratum. Idem Rex quasi toto tempore suo durantibus treugis inter Regnum Angliae, & adversarios ejus, non solum magnam immo maximam partem dicti patrimonir sui donavit etiam personis indignis, verum etiam propterea tot onera concessionis subditis imposuit quasi annis singulis in Regno suo, quod valde & mimium excessive populum suum oppressit, in depauperationem regni sui, ea bona sic levata, non ad commodum & uti itatem regni Angliae convertendo, sed ad nominis sui ostentationem, & pompam, & vanam gloriam prodige dissipando, & pro victualibus hospitu sui, & aliis emprionibus suis maximae summae pecuniarum in regno suo debentur, licet divitiis & thesauris plusquam aliquis progenitorum suorum de quo recolitur abundavit.
16 Item, Idem Rex • olens justas leges & consuetudi • es regni sui servate, seu protegere, sed secundum suae arbitrium voluntatis facere quicquid desideriis ejus occurreret, quando{que} & frequentius quandó sibi expositae & declaratae fuerant leges regni sui per Justitiarios, & alios de Concilio suo, & secundum leges illas petentibus justitiam exhiberet, dixit express vultu austero, & protervo, quod leges suae erant in ore suo, & aliquotiens in pectore suo, & quod ipse solus possit mutare, & condere leges regni sui; & opinione illa seductus quampluribus de ligeis suis justitiam fieri non permisit, sed per minas & terrores quamplures à prosecutione communis justitiae cessare coegit.
17 Item, Quod postquam in parliamento suo certa statuta erant edita, quae semper ligarent donec authoritate alicujus alterius Parliamenti fuerint specialiter revocata, Idem Rex cupiens tanta libertate gandere, quod nulla hujusmodi statuta ipsum adeo ligarent quin posset facere, & exequi secundum suae arbitrium voluntatis, prout non potuit, procuravit subtiliter talem petitionem in parliamento suo pro parte Communitatis regni sui porrigi, & sibi concedi in genere, quod posset esse adeo liber sicut aliquis progenitorum suorum extitit ante eum, quarum petitionis & concessionis color frequentius mandavit, & fecit idem Rex quamplura fieri contra statutae hujusmodi minime revocata; veniendo express & s • ienter contra juramentum suum in coronatione sua praestitum ut praefertur, prout inferius declaratur.
18 Item, Licet statutum fuit & ordinatum quod nullus Vicecomes officium suum occuparet continue ultra annum unum, sed trienulum laberetur antequam ad officium illud admitteretur de novo; Idem Rex Richardus quando{que} pro suo commodo singulari, & quando{que} ad prosecutionem aliorum pro eorum commodo & utilitate, quosdam Vicecomites stare▪ & remanere permisit & fecit in eorum officiis continue aliquotiens per biennium, & aliquotiens per triennium, contra tenorem & effectum statuti praedicti, perjurium incurrendo; & hoc est notorium, pub • cum, & • amosum.
19 Item, Licet de statuto, & consuetudine regni sui in convocatione cujuslibet Parliamenti populus suus in singulis comitatibus regni debeat esse liber ad eligendum & deputandum milites pro hujusmodi comitatibus ad interessendum Parliamento, & ad exponendum eorum gravamina, & ad prosequendum pro remediis superinde prout eis videretur expedire; tamen praefatus Rex ut in Parliamentis suis liberius consequi valeat suae temerariae voluntatis effectum, direxit mandata sua frequentius Vicecomitibus suis, ut certas personas per ipsum Regem nominatas ut milites comitatuum venire faciant ad Parliamenta sua, quos quidem milites eidem Regi faventes inducere poterat, prout frequentius fecit, quando{que} per minas varias, & terrores, & quando{que} per munera, ad consentiendum illis quae regno fuerant praejudicialia & populo quamplurimum onerosa; & specialiter ad concedendum eidem Regni subsidium lanarum ad terminum vitae suae, & aliud subsidium ad certos annos, suum populum nimium opprimendo.
20 Item, Idem Rex ut liberius adimplere, & sequi posset in singulis suae arbitrium voluntatis, illicite fecit, & mandavit, quod Vicecomites per totum regnum suum, ultra antiquum & solitum juramentum jurarent quod omnibus mandatis suis, sub magno, & privato sigillo suis, ac etiam literis sub signeto suo quotiescun{que} eis directae fuerint, obedirent, & in casu quo iidem Vicecomites scire poterant aliquos de ballivis suis, cujuscun{que} conditionis fuerint, aliquod malum dicere sive loqui publice, vel o •• dite, quod • edire possit in dedecus, aut scandalum personae re • iae • ipsus arestarent vel arestari facerent, & prisonae mancipari, in eadem salvo custodiendos donec aliud à Rege habuerint in mandatis, prout reperiri poterit de record • . Quod quidem factum posset verisimiliter tendere ad destructionem quorumcun{que} ligeutum dicti regni.
21 Item, Idem Rex nitens subpeditare populum suum, & bona sua subtiliter sibi adquirere ut divitiis superfluis habundaret, induci fecit populum de xvij. comitatibus regni ad submittendum se Regi tanquam proditores per literas sub figillis eorum, cujus color obticuit magnas summas pecuniarum sibi concedi per clerum & populum comitatuum eorundem pro benevolentia Regis captanda. Et quamvis ad placendum populo idem Rex fecerat eis restitui literas illas obligatorias, tamen procuratores ipsius populi babentes plenatiam potestatem eis concessam ad obligandum se & haeredes suos dicto Regi, idem Rex fecit obligari sibi sub sigillis eorum nomine ejusdem populi; sic{que} decepit populum suum, & bona eorum subtiliter extorquebat ab eis.
22 Item, Quamvis idem Rex in coronatione sua juraverit de servando libertates ecclesiae, Anglioana concessas▪ tamen dictus Rex ration viagii sui in terram, Hiberniae faciendi quampluribus viris religiosis videlicet. Abbatibus & Prioribus regni sui per literas ejus district praecipiendo mandavit, ut eorum aliqui certos equos, & aliqui eorundem non solum equos, sed etiam quadrigas sive charectas, alioquin magnas pecuniarum summas eidem Regi pro dicto viagio suo transmitte •• nt in eisdem literis expressatas, per quem modum scribendi plures hujusmodi Religiosos metu ductos artavit ad complendum voluntatem & praeceptum ipsius Regis, uni • e gravite • depauperati fuerant & oppressi in derogationem libertatis ecclesiasticae manifestam, Cujus prae • dictus Rex Ricardiu perjuritu • incurrebat.
23. Item, In pluribus magnis • oncilius reg • quando Domini regni, Justiciarii & alii one • ati fuerant ut fideliter consulerent Regi in tangentibus statum suum & regni sui, iidem Domini Justiciarii & alii frequentius in dando consilium juxta discretionem suam fuerant per Regem subito & tam acriter increpati & reprobati, quod non essent ausi dicere pro statu Regis & regni in consiliis suis dandis veritatem.
24 Item, Thesaurum coronas Feliquias & alia • ocaliu videlicet bona regni, quae ab antiquo dimissa fuerant in archivis regni pro honor Regis & conservatione regnisui in omnem eventum, praefatus Rex exiens regnum suum versus Hiberniam, abstulit & secum deferri fecit sine consensu statuum regni, unde regnum illud fuisset valde depauperatum nisi de recaptione bonorum hujusmodi contra voluntatem dicti Regis Deus aliter providisset; & praeterea rotulus recordorum statum & gubernationem regni sui tangentium praedictus Rex deleri & abradi fecit in magnum praejudicium populi & exhaeredationem Coronae regni praedicti, & ut verisimiliter creditor in favorem & sustentationem sui mali regiminis.
25 Item, Idem Rex consuevit quasi continue esse adeo variabilis, & dissimilans in verbis, & in scriptures suis, & omnino contrarius sibi ipsi & specialiter in scribendo Papae & Regibus & aliis Dominis extra regnum, & infra ac etiam & aliis subditis ejus, quod quam nullus vivens habens notitiam suae conditionis hujusmodi poterit aut velit de eo confidere, ymmo reputatui adeo infidelis & inconstans, quod cedit ad scandalum non solum personae suae, set etiam torius regni, & potissime apud extraneos totius orbis inde no • tiam optinentes.
26 Item, Licet terrae & tenementa, bona & catalla cujuscun{que} liberi hominis per leges regni ab omnibus retroactis temporibus usitatas capi non debeant nisi fuerint forisfacta, nichilominus dictus Rex proponens & satagens leges hujusmodi enervare, in praesentia quamplurium Dominorum & aliorum de communitate regni frequenter dixit & affirmavit, quod vita cujuscun{que} li • sui as ipsius terrae, nenomenta bona & catalla sunt • ua ad voluntatem suam abs{que} aliqua foris actum. Quod est omnino contra leges & consuetudines regni sui supradicti.
27 Item, Quamvis statutum fuerit & ordinatum, ac etiam hactenus confirmatum, quod nullus liber homo capiatur, &c. nec quod aliq • modo destruatur, nec quod Rex supereum ibit nec super eum mitter, nisi per legale judicium parium suorum, vel per legem terrae, tamen de voluntate, mandato & ordination dicti Regis, quamplures ligeorum suorum malitiose accusati super eo, quod debuissent aliquid dixisse publice vel occulte quod cedere poterit ad vituperium, scandalum seu dedecus personae dicti Regis, fuerant capti & imprisonati, & ducti coram Constabulario, & Mateschallo Anglia in Curia militari, in qua Curia dicti ligei accusati, ad aliud responsum admitti non poterant, nisi respondendo se in nullo fore culpabiles, & per eorum corpora, & non aliter, se justificarent, & defenderent, non obstante quod accusators, & appellatores eorum essent juvenes, fortes & sani, & illi accusati senes & impotentes, mutulati vel infirmi; unde non solum destructio Dominorum & Magnatum regni, set etiam omnium & singularum personarum communitatis ejusdem regni verisimiliter sequi posset. Cum igitur Rex praedictus hujusmodi regni sui statuto voluntatie contravenerit, non est dubium quin proinde perjurium incurrebat.
28. Item, Q • amvis populus regni Angliae vigore ligeanciae suae satis pleno Regi suo teneatur, & astringatur •• seque Rex populum suum si quovis modo deliquerit, per leges & consuetudines regni sui corrigere valeat & punire; ramen dictus Rex cupiens suppeditare, ac nimis opprimero popolum suum, ut liberius exequi, & sequi valcret sua • ptae & illicitae voluntatis arbitrium, per literas suas ad omnes Comitatus regni sui direct indixit etiam & mandavit, ut ligei sui quicun{que} tam Spirituales quam Temporales certa juramenta praestarent in genere quae eis fuerant nimium onerosa, quaequa verisimiliter causare possent destructionem finalem populi sui, & quod sub literis & sigillis eorum juramenta hujusmodi roborarent. Cui quidem mandato regio populus regni sui paruit & obedivit, ne ipsius indignationem incurreret aut o •• eniam, ac etiam metu mortis.
29 Item, Cum partes in foro ecclesiastico, in causis mere Ecclesiasticis & Spiritualibus litigants, prohibitiones regias ad impediendum processum legitimum in eisdem à Cancellario Angliae impetrare laborassent, & idem Cancellarius ex justitia ad hoc rescribere recusasset; idem tamen Rex per literas sub signeto suo judicibus ecclesiasticis hujusmodi frequenter district prohibuit, ne in causis hujusmodi procederent, libertates ecclesiasticas in magna carta approbatas ad quas conservandas juratus extiterat, nequiter infringendo, perjurium & sententiam ex communicationis contra hujusmodi violatores à sanctis Patribus latam, dampnabiliter incurrendo.
30 Item, Dictus Rex Dominum Thomam de Arundell Archiepiscopum Cantuariensem, totius Angliae Primatem, patrem suum Spiritualem, in Parliamento suo viris armatis hostili more vallato tunc de callido Consilio dicti Regis se absentantem, abs{que} causa rationabili, seu legitima quacun{que} seu alio juris processo contra leges regni sui per ipsum ut praefertur juratas, in exilium perpetuum adjudicavit.
31 Item, Per inspectionem testamenti dicti Regis sub magno & privato sigillis suis & signeto signati, inter caetera continetur haec clausula sive articulus. ITEM volumus quod auri nostri residuum, solutis tamen nostrorum hospicii, camerae, & garderobae veris debitis, ad quae persolvenda legamus viginti milia libratum, reservatis, executoribus nostris quinque vel sex milibus marcarum, quas pro uberiori sustentatione leprosorum ac capellanorum eoram eis celebraturorum per nos apud Westmonast. & Bermonde • eyd ordinatorum, volumus per dictos executores nostros expendi, nostro remaneat successori, dum tamen omnia & singula statuta, ordinationes, stabilimenta & judicia in Parliamento nostro decimo septimo die Mensis Septembr. anno Regni v • cesimo primo apud Westmonast inchoato, & in eodem Parliamento ui que Salopiam continuato & ibidem tento, facta, lata & reddita, necnon omnia ordinationes & judicia ac stabilimenta decimo sexto die Septembr. anno regni vicesimo secundo apud Coventriam postmodum apud Westmon ; decimo octavo die Marcii anno praedicto, authoritate ejusdem Parliamenti facta, habita & reddita, ac etiam omnia alia ordinationes & judicia quae autoritate ejusdem parliamenti in futurum contigerit fieri, approbet, ratificet, & confirmet, teneat, & teneri faciat, ac firmiter observet; alioquin si praedictus successor noster praemissa facere nolu • rit, vel recusaverit, quod non credimus, volumus quod Thomas Dux Surriae, Edwardus Dux Daumarle, Johannes Dux Exomae & Wilhelmus Lescrop Comes Wilteshirae, solutis prius debitis nostrorum hospitii, camerae, & garderobae, reservatis quinque vel sex milibus marcarum ut supra pro hujusmodi itatutorum, stabilimentorum, ordinationum, & judiciorum sustentatione, & defensione, secundum eorum posse, etiam usque ad mortem si oporteat, residuum habeant & teneant memoratum; super quibus omnibus & singulis eorum conscientiat prout su die judicii respondere voluerint oneramus. Per quem quidem articulum satis constare poterit evidenter, quod idem Rex illa statuta, & ordinationes, qu • sunt erronea, & iniqua, & omni juri & rationi repugriantia pertinaciter man • tenere, & defendere •• tebatur, non tam in vita quam su morte, nec de animae suae periculo, nec de dicti regni sui, seu ligeorum suorum ultima destructione e • rando.
32 Item, Anno undecimo dicti Regis Richardi, idem Rex in capella mane •• sui de Langley, in presentia Ducum Lancastriae & Eborum, ac aliorum quamplurium Dominorum personaliter constitutus, cupiens, ut apparuit, ut ejus avunculus Dux Gloucestri • tunc ibidem praesons de ipsius Regis beneplacito plene confideret ad venerabile corporis Dominici Sacramentum ibidem super altare repositum sua sponte juravit, quod eidem Duci Gloucestriae pro aliquibus factis ejus quae contra personam ipsius Regis dicebantur esse commissa nunquam extunc inferret dampnum aliquod vel gravamen, set omnem offensam illius, si qua fuerat, hillariter, & ex integro sibi remisit. Postea tamen juramento hujusmodi non obstante, dictus Rex praefatum Ducem pro sic praetensis offensis horribiliter & crudeliter murdrari fecit, reatum perjurii dampnabiliter incurrendo.
33 Item, Postquam unus de militibus Comitatuum dicti regni, vocem habens corum in Parliamento, dictum Dominum Thomam Archiepiscopum Cantuariensem super certis defectibus contra regiam majestatem, ut minus veraciter asserebatur commissis, impetiit publice coram Rege & omnibus statibus regni, Quamquam idem Archiepiscopus statim tunc ibidem optulit se paratum ad respondendum hujusmodi sibi impositis, & ad hoc petierit se admitti per Regem, satis plene confisus, ut dixit, se posse suam in ea parte innocentiam declarare, idem tamen Rex machina • s viis & modis quibus poterat eundem Archiepiscopum Cantuariensem opprimere & in nichilum redigere statum ejus, prout tandem rei exitus declaravit, benign ac hillari vultu Archiepiscopum alloquens in seed sua regali, consuluit & attente rogavit eundem Archiepiscopum, quod illa vice taceret tempus ad hoc magis aptum & congruum expectando: Quo die lapso de die in diem been per quinque dies & amplius Rex praefatus ipsum Archiepiscopum fraudulenter & dolose decepit, consulens & suadeus quod non veniret ad Parliamentum, set apud hospitium suum intrepidus expectaret, quoniam, ut idem Rex fideliter sibi promisit, in ipsius Archiepiscopi absentia nullum sibi dobelet inferri dispendium vel gravamen: Ver • tamen dictus Rex in suo Parliamento praedicto ipsum Archiepiscopum ut praefertur absentem, ac ad responsum suum nullo modo vocatum, absque quacunque causa rationabili adjudicavit in exilium, ad ipsius Regis beneplacitum duraturum, omnia bona sua contra leges regni ac omnem justiciam voluntary confiscando, cujus praetextu perjurium incurrebat. Volens praeterea dictus Rex suam in ea parte versutiam palliare, per ipsius blanda colloquia cum dicto Archiepiscopo frequentius habita, tantam sibi illatam injuriam à se prorsus excutere nitebatur, & ad aliorum facta transfer; unde dictus Archiepiscopus habens cum eodem Rege & cum Duce Norfolciae, & aliis Dominis & magnatibus dicti regni colloquium, dixit aliqualiter lamentando, quod ipse non erat primus qui exilium pertulit, nec erit novissimus, quia purabat quod infra breve dictus Dux Norfolciae & alii Domini ipsum Archiepiscopum fequerentur, & constanter asseruit dicto Regi quod omnium praemissorum asperitas in caput ipsius Regis debeat finaliter retorqueri; Ad quod idem Rex vultu demisso acsi inde fuisset attonitus, incontinenti respondit, quod been putabat illud accidere posse, quodque per ligeos suos à regnosuo deberet expelli; Et ulterius dixit idem Rex, quod si illud forsan acciderit, vellet ad locum ubi idem Archiepiscopus fuerit se confer; Et ut dictus Archiepiscopus huic assertioni fidem adhiberet in dubium, ostendit idem Rex Archiepiscopo memorato quoddam magnum auri monile juxta fimbrium tunicae dicti Regis subtus vestem e ••• exteriorem miro modo firmatum, intimans eidem Archiepiscopo pro constanti, quod cum illud monile sibi pro intersigno transmitteret, non differret illu • venire ubi dictus Archiepiscopus moraretur; Et ut idem Archiepiscopus majorem haberet materiam confidendi in eo, misit ipse Rex praefato Archiepiscopo, consulens sibi quod omnia jucalia sua & alia ad Capellam suamspectantia dicto Regi secrete transmitteret pro salva custodia eorundem, ne color dicti judicii super ipsius exilio redditi quisquam ad bona praedicta manus injuriosas apponeret; Quo sub maxima confidentia facto, praefatus Rex bona hujusmodi visa per eum in quibusdam coffris reponi fecit, & costras illas ferari, ac per unum de clericis ipsius Archiepiscopi sigillari. Retentisque penes illum hujusmodi coffris, claves earum per eundem clericum Archiepiscopo memorato remisit; Et postmodum coffras illas dicto Archiepiscopo hoc penitus ignorant frangi mandavit, & debonis hujusmodi mox disposuit pro suae libito voluntatis. Promisit etiam idem Rex fideliter dicto Archiepiscopo, quod si pararet se ad portum de Hampton ut regnum exiret, saltem intercessione Reginae protinus revocaret eundem, Et si contigerit ipsum Archiepiscopum regnum exire, citra Pascha proximo extunc sequens sine falso rediret in Angliam, neque suum Archiepiscopum amitteret ullo modo; & hoc fideliter promisit jurando super crucem dudum sancti Thomae Martyris Cantuariensis Archiepiscopi per ipsum Regem corporaliter tactam. Quibus promissionibus non obstantibus, idem Rex dictum Archiepiscopum regnum exire coegit, & statim ad sedem Apostolicam pro ipsius translatione transmisit literas speciales, sicque & alias per frauds & dolositates dicti Regis erat idem Archiepiscopus ut homo bonae fidei callide circumventus.
Et quoniam videbatur omnibus statibus Regni superinde singillatim ac eciam communiter interrogatis▪ quod illae causae criminum & defectuum erant satis sufficientes & notoriae ad deponendum eundem Regem, attenta eciam sua confession super ipsius insufficientia & aliis in dicta renunciatione & cessione conrentis patenter emissa, omnes status praedicti unanimiter consenserunt, ut ex habundanti ad depositionem dicti Regis procederetur pro majori fecuritate & tranquillitate populi ac regni commodo faciendam▪ unde status & communitates praedicti certos Commissarios, videlicet Episcopum Assav, Abbatem Glas • onia • • omitem Gloucestriae, Dominun • de Berkeley, Tho • am Erpyngham & Tho • am Grey Milite • , & Willielmum Thirnyng Justiciarium, unanimiter & concorditer constituerunt & deputarunt publice tunc ibidem, ad le • endum sententiam depositionis hujusmodi, & ad deponendam eundem Richardum Regem ab omni dignitate, majestate & honor regiis, vice, nomine & authoritate omnium statuum praedictorum; prout in consimilibus casibus de antiqua consuetudine dicti regni fuerat observatum. Et mox iidem Commissarii onus Commissionis hujusmodi in se assumentes & ante dictam sedem regalem pro tribunali sedentes, praehabita super hus deliberatione aliquali, hujusmodi depositionis sententiam in scriptis redactam vice nomine & authoritate praedictis tulerunt, & per dictum Episcopum Ass • v •• . Commissarium & Collegam suum eandem sententiam de ipsorum Commissariorum voluntate & mandato legi & recitari fecerunt, in haec verba.
IN DEI NOMINE, Amen. Nos Johannes Episcopus Assivens. Johannes Abbas Glastoniae, Thomas Comes Gloucestriae, Thomas Dominus de Berkely, Thomas de Erpyngham, & Thomas Gray milites, ut Wilhelmus Thyming Justiciarius, per Pares & Proceres regni Angliae, Spirituales & Temporales, & ejusdem regni Communitates, omnes status ejusdem regni repraesentantes, Commissuri • ad infrascripta specialiter deputati, pro Tribuna •• sedentes, atte • tis perjuriis multiplicibus a • crudelitate aliis{que} quampluribus criminibus dicti Richardi circa regimen suum in regnis & dominio supradictis pro tempore sui regimnas commissis & perpetra • is, ac coram dictis statibus pa • & publice propositis, exhibitis & recitatis, quae ad • fuerunt & sunt publica, notoria, manifesta & famosa quod nulla poterant aut possunt • ergiversatione celari, Necnon confession praedicto Richardi recognoscen • i • & 〈…〉 scit • tia sua judicanti • se fuisse & esse 〈…〉 & • inii praedictorum & pertinentium corundem, ac propter sua domorita notoria non immerito deponendum per ipsum Richardum prius emissa, ac de voluntate & mandato suis coram dictis statibus publicata, eis{que} notificatae & exposita in vulgari; praehabita super hiis & omnibus in ipso negotio actitatis coram statibus antidictis & • obis deliberatione diligenti, vice, nomine & authoritate: • is in hac parte commissa, ipsum Richardum ex habundanti, & ad cautelam ad regimen & gubernationem dictorum regnorum & dominii jurium{que} & pertinentium eorundem fuisse & esse inutilem, inhabilem, insufficientem penitus & indignum, ac propter praemissa & eorum pretextu ab omni dignitate & honor regiis, si quid dignitatis & honoris hujusmodi in eo remanserit, merito deponendum pronunciamus, decernimus & declaramus, & ipsum simili cautela deponimus per nostram diffinitivam sententiam in hiis scriptis. Omnibus & singulis Dominis Archiepiscopis, Episcopis & Praelatis, Ducibus, Marchionibus, Comitibus, Baronibus, Militibus, Vassallis & Valvassoribus, ac cateris hominibus dictorum regnorum & dominii, ac aliorum locorum ad dicta regna & dominium spectantium subditis ac ligeis suis quibuscunque inhibentes express, ne quisquam ipsorum de caetero praefato Richardo, tanquam Regi vel Domino regnorum aut dominii praedictorum paret quomodelibet vel intendat.
Volentes autem praeterea dicti status ut nichil desit quod valeat aut debeat circa praemissa requiri, superinde singillatim interrogati, personas easdem prius per Commissarios nominatos constituerunt Procuratores suos conjunctim & divisim ad resignandum & reddendum dicto Regi Richardo homagium & fidelitatem prius sibi facta, & ad praemissa omnia hujusmodi depositionem & renunciationem tangentia, si oportuerit, intimanda.
ET CONFESTIM ut constabat ex praemissis & eorum occasion regnum Angliae cum suis pertinentiis vacare, praefatus Henricus Dux Lancastria de loco suo surgens, & stance adeo erectus quod satis intueri posset à populo & muniens se humiliter signo crucis in front & in pectore suo, Christi nomine primitus invocato, dictum regnum Anglia sic ut praemittitur vaca • s, una cum Corona ac omnibus membris & pertinentiis suis vindicavit in lingua materna, sub hac forma verborum.
In the name of Fader, Son and holy Ghost; I Henry of Lancastre challenge this Rewine of Ynglonde and the Croune, with all the members and the appurtenances, als I that am descendit be right line of the blode coming fro the gude Lord King Henry therde, and thorghe that right that God of his grace hath sent me, with help of my kyn, and of my friends to recover it; the which Rewme was in point to be ondone for defaut of governance, and undoyng of the gude Laws.
Post quam quidem vindicationem & clameum, tam Domini Spiriuales quam Temporales, & omnes status ibidem praesentes singillatim & communiter interrogari quid de illa vindicatione & clameo sentiebant? iidem status cum toto populo absque quacun{que} difficultate vel mora, ut Dux praefatus super eos regnaret, unanimiter consenserunt. Et statim ut idem Rex ostendit statibus regni signetum Ricardi Regis sibi pro intersigno traditum suae voluntatis, ut praemittitur, expressivum, praefatus Archiepiscopus dictum Henricum Regem per manum dextram apprehendens duxit eum ad sedem regalem praedictam; Et postquam idem Rex coram dicta seed genu flexus parumper orasset, idem Archiepiscopus Cantuariensis, assistente sibi Archiepiscopo E • orum praedicto, dictum Regem posuit & sedere fecit in seed regali praedicta▪ populo prae nimio gaudio fortiter applaudente; Et mox dictus Archiepiscopus Cantuariensis, vix facto silentio propter gaudium omnium circumstantium, collationem modicam fecit & protulit, in haec verba.
VIR DOMINABITUR POPULO, Reg. ix. c. Haec sunt verba summi Regis loquentis ad Samuelem, & docentis eundem qu • lem deberet instituere ad gubernandum populum, quando potebat sibi dari Regem populus ill, & non inepte de Domino nostro Rege moderno dici possunt: quae verba si intime considerentur praebent nobis materiam magnae consolationis. Non enim Deus nobis comminatur sicut quondam per Ysai. comminabatur populo dicens, Ysai. 3. Dabo pueros Principes eorum, set ex sua misericordia, qui cum irascitur misericordiae recordatur, visitavit plebem suam, & non modo, ut prius fuerat in regno, pueri dominabuntur, set dicit dominus vobis, quod Vir dominabitur populo. Poterat enim de Rectoribus istius regni sive eorum quolibet praeteritis in persona parvuli non inconvenienter dici illud Apostoli, Cor. 13. Cum essem parvulus loquebar ut parvulus, sapiebam ut parvulus, cogitabam ut parvulus: ecce, ter dicit Apostolus, loquebatur ut parvulus, sapiebat, & cogitabat. Quantum ad loquelam, certum est quod parvulus inconstans est in loquendo, faciliter vera loquitur, faciliter falsa, faciliter verbo promittit, set quod promittit cito obliviscitur; haec enim sunt inconvenientia & nimis moleste regno, nec possibile est regnum feliciter stare ubi hae conditions regnant; set ab istis defectibus liberatur regnum cum vir dominatur, ad virum nam{que} pertinet circa linguam servare custodiam. Modo autem non pure dominatur set vir, do quo spero dici potest illud Eccl. ix. Beatus vir qui non est lapsus in lingua. Post inquit Apostolus, sapiebam ut parvulus; parvulus enim non sapit nisi placentia & adulatoria, arguentem secundum veritatem non diligit, ymmo odit supra modum. Quondam autem veritus fuerat subpeditata ut nullus auderet loqui; satis constat, & per hoc patet, quod ill qui regnabat sapiebat ut parvulus, vir enim non sapit talia, set sapientiam, unde per Dei gratiam dici poterit de isto viro quod scribitur Eccl. ix. Beatus vir qui in sapientia morabitur; sicut enim pure diligit vanitatem, ita vir sapit veritatem & sapientiam; veritas ergo intrabit, adulatio recedat, quae tot mala in regno nostro fecerunt, quia vir dominabitur populo, qui veritatem sapit, non qui vanitatem vel adulationem. Tertio dicitur, Cogitabam ut parvulus, parvulus enim solum studet facere omnia voluntary non ex ration, cum igitur pure regnat voluntas sola regnat, ratio e • ulat; ubi vero voluntas regnat & ratio recessit▪ constantia fugata est, & ita imminet magnum periculum; ab isto periculo liberati sumus, quia vir dominabitur, ill scilicet qui dicit non sicut parvulus set sicut ration perfectus, Non veni facere voluntatem meam, set ejus qui misit me, scilicet Dei; & ideo de viro isto non solum dicemus quod in sapientia morabitur, set eciam ut vir & non ut pure in sensu cogitabit circumspectionem Dei, id est circumquaque diligenter aspicit ut Dei voluntas non sua fiat, & ita loco pueri voluntary lascivientis, vir modo dominabitur in populo, & iste vir est talis quod dicetur, Regnabit Rex & sapiens erit, & faciet judicium & justitium interra.
Qua collatione completa, dictus Dominus Rex Henricus ad ponendum suorum subditorum animos in quiet, dixit publice tunc ibidem haec verba.
Sires, I thank God and yowe Spirituel and Temporel, and all the estates of the Lond, and do yowe to wyte, it es noght my will that no man think that be way of conquest I would disherit any man of his heritage, franches or other ryghts that him aght to have, to put him out of that that he has, and has had by the gude Laws and Customs of the Rewme; Except thos person • that has been agan the gude purpose, and the common profit of the Rewme.
Et protinus hoc attento quod per prius vacante seed regali per cessionem & depositionem praedictas cessavit omnis potestas quorumcun{que} Justiciariorum, Vicecomitum, & aliorium Officiariorum ubi{que} per regnum, ne exhibitio justitiae in gravamen populi dilationis incommodo subjaceret, suos officiarios principales ac eciam Justiciarios deputavit ibidem juramento consueto Regi praestito per singulos eorundem. Et fuit ilico de dicti Regis mandato publice proclamatum ibidem, quod die Lunae proximo post festum sancti Michaelis, Parliamentum ibidem teneri & celebrari deberet; quod{que} die Lunae proximo extunc sequente, videlicet in festo sancti Edwardi, Coronatio dicti Regis fieret apud Westmonasterium, & quod omnes illi qui vendicare voluerint aliquod servitium se in dicta Coronatione facturos, & eo praetextu aliquid sibi deberi, venirent ad Albam aulam palacii coram Senescallo, Constabulario & Marescallo Angliae, die Sabbati proximo ante diem Parliamenti praedicti, quod in ea parte justum fuerit petituri, quibus plena justitia fierit in petitis. Quantum autem ad abbreviationem assignationis diei Parliamenti praedicti, fuerat pro parte dicti Regis protestatio talis facta, videlicet quod non erat intentionis suae ut statibus regni sui praejudicium afferatur exinde, nec quod hoc trahatur de caetero in exemplum, quinymmo quod abbreviatio illa fiebat tantummodo pro commodo & utilitate regni, & specialiter ut quorumcunque ligeorum suorum parcatur laboribus & expensis, quodque super gravaminibus populi celere possit remedium adhiberi.
Quibus omnibus sic peractis, Rex desede sua regali surgens, & populum vultu hillari & benigno respiciens, abinde populo congaudente recessit, & in Alba aula praedicta convivium regni Proceribus ac generosis illuc in multitudine maxima congregatis eodem die solempnissime celebravit.
ET POSTMODUM die Mercurii proximo extunc sequente dicti Procuratores ut praemittitur deputati, ad praesentiam dicti Richardi nuper Regis infra dictam Turrim existentis, prout eis injunctum fuerat, accesserunt, & praefatus Dominus Wilhelmus Thirnyng Justiciarius, pro se & dictis sociis & comprocuratoribus suis nomine omnium statuum, & populi praedictorum admissionem dictae renunciationis ac modum, causam & formam sententiae depositionis hujusmodi eidem Ricardo notificavit, ac plenius declaravit; & statim homagium & fidelitatem eidem Ricardo nuper Regi ut praemittitur facta, resignavit & reddidit, sub hiis verbis.
Les paroles qe William Thirnyng parla a monsire Richard nadgaires Roy d' Engleterre, a le Toure de Londres, en sa Chambre, le Mesqerdy procheyn apres le fest de Seint Michell larchaunchel, sensuent.
SIRE, It is well know to yowe; that there was a Parlement somond of all the States of the Reaume for to be at Westmynstre, and to begin on the Tuesday in the morne of the fest of Seint Michell the Archaungell that was yesterday; by cause of the which Sommons all the States of this lond were there gadyrd, the which States hole made thes same persons that ben come here to yowe now her Procuratours, and gafen hem full authority and power, and charged hem for to say the words that we sall say to yowe in her name, and on their behalve; that is to wytten, the Bishop of Seint Assa for Ersbisshoppes and Bisshoppes; the Abbot of Glastenbury for Abbots and Priours, and all other men of holy Chirche Seculers and Rewelers, the Earl of Gloucestre for Dukes and Erles, the Lord of Berkeley for Barones and Barnerettes, Sir Thomas Irpyngham Chamberleyn for all the Bachilers and Commons of this Lond be south, Sire Thomas Grey for all the Bachilers and Commons by north, and my Felawe Johan Markham and me for to come with hem for all thes States; and so Syre thes words and the doing that we sall say to yowe, is not only • h our words, bot the words and the doings of all the States of this Lond, and our charge, and in her name. And he answered and said, that he wyst well • that we would noght say, but as we were charged. Sire, ye remember yowe well that on Moneday in the fest of Seint Michell the Archaungell right here in this Chambre, and in what presence ye renounsed and cessed of the state of Kyng and of Lordesship, and of all the Dignite and Wyrs • hipp that longed thereto, and assoiled all your Leiges of her ligeance and obeisance that longed to yowe uppe the form that is contened in the same Renunciation and Cession, which ye red yourself by your mouth, and affermed it by zour oath, and by your own writing; upon which ye made and ordained your Procuratours, the Ersbysshopp of York, and the Bisshopp of Hereford, for to notify and declare in your name thes Renunciation and Cession at Westmynstre, to all the States, and all the people that was there gadyrd, because of the Sommons foresaid; the which thus don yesterday by thes Lord's your Procuratours, and well heard and understonden, thes Renunciation and Cession ware pleinelith and frelith accepted, and fullich agreed by all the States and people forsayd. And over this Sire, at the instance of all thes States and people, there ware certain Articles of defauts in your governance red there, and though well herd and plesnelich understonden to all the States forsayd, hem thoght hem so true and so notorie, and known that by the causes, and as by mo other as thei said, and havyng consideration to your own words in your own Renunciation and Cession, that ye were not worthy, ne sufficient, ne able for to govern for your own demerits, as it is more pleinerlich contened therein, hem thoght that wos reasonable and cause for to depose yowe and her Commissaries that thei made and ordained, as it is of record there declared and decreed, and adjudged yowe for to be deposed and prive • , and in deed deposed yowe, and pryved yowe of the astate of Kyng, and of the Lordsship contened in the Renunciation and Cession forsayd, and of all the Dignite and Wyrsship, and of all the administration that longed thereto. And we Procuratours to all these States and people forsayd, os we be charged by hem, and by her authority giffen us, and in her name, yield yowe uppe for all the States and people forsayd, Homage, Liege and Feaute, and all Ligeance, and all other Bonds, Charges and Services that longe thereto; and that non of all tbes States and people fro this time forward, ne here yowe feyth, ne do yowe obeisance • s to thar Kyng. And he answered and said, that he looked not thereafter: but he said, that after all this he hoped that is Cosyn would be good Lord to him.
Joesdy le • xiv. Doctober Lerecues{que} de Canterbire chargea deper le Roy touz les Seigneurs Espirituales & temporales & toutz antres y estantz sur Leur Ligeance que ceo que lors serroit monstres on parlez illoeqe serroit tenuv cons • il & qil ne serroit ascunement discoverez a nully vivant. Et pius apres demandez feust per le Count de Northumbr. pur la seurte du Roy & de touz Lestatz du Roialme, Coment leure semble que serroit erdeignez de Richard nadgaires Roy pur Luy mettre & saufegard, Sauvant su vie, quele le Roy voet que luy soit sauvez & touz manners? Surquoi responduz feust per toutz Les Signiars severalment examines dont les nomes si ensuent que leur semble qil serroit mys en sauso & secregard & en tiel Lien on nul concours dos g • ntz yad & qil soit gardez perseures & sufficientz person, & que nul que este familier du dit nadgairs Roy soit ascunement entour sa person & que ceo soit fait en le pluis se • re manere que fair sa purra.
Les nomes des Seigneurs demandez & assentez en La question suisditz cy ensuent Cestassavoir.
- Lerceues{que} de Canterbrie.
- Lerceues{que} Deuerwyck.
- Leues{que} de Londres.
- Leues{que} Dely.
- Leues{que} de Nicholl.
- Leues{que} de Norwich.
- Leues{que} de Roucestre.
- Leues{que} de Sar.
- Leues{que} Dexcestr.
- Leues{que} de Cicestr.
- Leues{que} de St. Asaph.
- Leues{que} de Cestr.
- Leues{que} de St. David's.
- Leues{que} de Landafe.
- Leues{que} de Duresme.
- Labbe de Westminster.
- Labbe de St. Albon.
- Labbe de St. Austyn.
- Labbe de Bury.
- Labbe de St. Doverwycke.
- Labbe de Glocestr.
- Labbe de Battaill.
- Le Prince.
- Le Duc de Nerwyck.
- Le Count Darundell.
- Le Count de Warr.
- Le Count de Staff.
- Le Count de Northumbr.
- Le Count de Suff.
- Le Count de Wircestr.
- Le Sgr. de Roos.
- Le Sgr. de Grey de Ruthin.
- Le Sgr. de Cherleton.
- Le Sgr. de Bardolf.
- Le Sgr. de Willughby.
- Le Sgr. de Furnival.
- Le Sgr. de Ferrers.
- Le Sgr. de Beaumont.
- Le Sgr. de Berkeley.
- Le Sgr. de Fitz Wauters.
- Le Sgr. de Manley.
- Le Sgr. de Scales.
- Le Sgr. de Morley.
- Le Sgr. de Burnell.
- Le Sgr. de Lovell.
- Le Sgr. de Camoi.
- Le Sgr. de Seymore.
- Le Sgr. de Crombwell.
- Le Sgr. de Cobham.
- Monsr. Henr. Peircy.
- Monsr. Richard Scroop.
- Le Sgr. Fitz Hugh.
- Le Sgr. de Bergeueny.
- Le Sgr. de Lomley.
- Le Baron de Greystocks.
- Le Baron de Hilton.
- Monsr. Thomas Erpingham Chambr.
- Monsr. Mayhew Gowinay.
Mr. Hall in his Chronicle, fol. 10. and others relate, that in this Parliament, when it was demanded by the Kings friends, what should be done with King Richard? Thomas Menkes Bishop of Carlisle, which was a man both well learned and well stomacked, rose up and said; My Lord's, I require you take heed what answer you make to this question. For think there is none of you worthy or meet to give judgment on so noble a Prince as King Richard is, whom we haven taken for our Sovereigne and Liege Lord by the space of two and twenty years; and I assure you, there is not so rank a traitor, nor so arrant a thief, nor so cruel a murderer, which is apprehended and detained in prison for his offense, but he shall be brought before the Justice to hear his judgment; and yet you will proceed to the judgment of an anointed King, and hear neither his answer nor excuse. And I say, that the Duke of Lancaster, whom you call King, hath more offended, and more trespassed to King Richard and this Realm, than the King hath either done to him, or to us. For it is manifestly known, that the Duke was banished the Realm by King Richard and his council, and by the judgment of his own Father, for the space of ten years, for what cause all you know, and yet without license of King Richard he is returned again into the Realm; yea and that is worse, hath taken upon him the name, title, and preeminence of a King. And therefore I say and affirm, that you do apparently wrong, and manifest injury to proceed in anything against King Richard, without calling him openly to his answer and defense. When the Bishop had ended, he was incontinent by the Earl Marshal attached and committed to ward in the Abbey of S. Albanes. And then it was concluded, that King Richard should continue in a large prison, and should be plentifully served of all things necessary both for viands & apparel.
From the proceedings against these 2. deposed Kings, these 2. inferences have been made.
1. That the Commons have a joint interest with the Lord's in the Judicature and Jugements in Parliament.
2. That the Proceedings against our late condemned beheaded King are justifiable, and warranted by them.
I answer, that nei • her of these 2. Consequences are proved by them. For 1. The Commons themselves in this Parliament of 1 H. 4. n. 79. immediately after King R • chards deposition, confess, That the Judicature and Judgments of Parliament, belong only to the King and Lord's, not to the Commons . 2ly, The Commons neither in nor out of Parliament, are, may or ought to be the Judges of the meanest Lord or Peer of the Realm, who are to be judged, tried by their Peers alone; as I have abundantly evidenced in the premises: Much less then can they be lawful Judges of their Sovereign Lord and King, who is a degree above all the Peers of highest dignity. In the Parliament, An, 1260. Prince Edward, as I have proved before, would be tried only by 2. Kings; because all the rest of the Earls and Barons were not his Peers, neither could they be his Judges: much less then can Peers or Commons be their Kings Judges & Peers to ondemn or try him. 3ly, Our Law-books resolve, That the King hath no Peers in his own Realm ; and, Therefore he can neither be legally tried nor judged by the Peers themselves, much less by the Commons in Parliament. 4ly, The Laws of Hoel Dha King of Wales, about the year 940. Lex 20. resolve, Rex non poterit secundum legem in lite stare coram Judice suo, agendo vel respondendo, per dignitatem naturalem ; yea all the Lord's and Commons of England in the Parliament of Lincoln, Anno 29. E. 1. in their forecited Letter to the Pope (p. 128.) resolve, That the Kings of England, Ex praeeminentia status suae Regiae dignitatis, ex consuetudine cunctis temporibus observata, neque responderunt, neque respondere debebant coram aliquo Iudice Ecclesiastico vel seculari sup • r juribus suis in regno, &c. Much less then may or ought they to be put to answer criminally for their lives, or Crowns before any Ecclesiastical or Temporal Judge, Peers or Commons House, or High Court of COMMONS. 5ly, The Statutes of 16 R. 2. c. 5. and of 25 H. 8. c. 19.21. thus declare, resolve, and the Archbishop of Canterbury in the Parliament of 16 R. 2. n. 20. protested against the Popes pretended Supremacy, That the Crown of England hath been so free at all times, that it hath been in subjection to no Realm or Person; but immediately subject to God▪ and to none other, in all things touching the Regality of the said Crown. And the Statutes of 25 H. 8. c. 19, 21, 22. 26 H. 8 c. 1.3. 27 H. 8. c. 15. 28 H. 8. c. 7.10. 31 H. 8. c. 10.15. 32 H. 8. c. 22.24, 26. 33 H. 8. c. 29. 35 H. 8. c. 1.3.17, 19. 37 H. 8. c. 17. 1 E. 6. c. 2. 1 Eliz. c. 1. 8 Eliz. c. 1. 3 Jac. c. 3, 4. declare and enact, The King to be the only Supreme Head & Governor (upon Earth) both of the Church & Realm of Engl. both of which recognize no Super or under God, but only the King. To affirm then, that the Lord's or Commons in Parliament may lawfully judge, depose the King and deprive him of his Crown, Regalities, Head, Life: is to contradict, repeal all these Statutes: since the inferior Members can no more legally judge the Supreme head of the body politick, than the head of the body natural; or the Courrs in Westminster hall, or Hundred Courts, judge the High Court of Parliament, and condemn, repeal their Acts or Judgments. 6ly, Though Articles were drawn up against these two Kings pro forma, yet neither of them was ever required, or judicially summoned to make answer to them, or heard, or brought to trial before the Lord's or Commons Barr, or any other Tribunal, or Court of Justice. Whence the Bishop of Carlisle protested against it, as most illegal, unjust and traiterous. Therefore neither the Lord's nor Commons could be properly said their Judges in this case; and their Judgment without hearing or trial of them must needs be most erroneous, as well as Mortimers and the Earl of Arundels forecited. 7ly, The Lord's and Commons resignation of their Homage to these 2. Kings, when deposed; show, that even then they este • med them their Superiors & Lord's: Homage being the most honorable and humble service that a franktenant may do to his Lord: the tenant being ungirt, his head uncovered, kneeling down on both his knees before his Lord sitting covered and holding up his hands jointly together between his Lord's and the Kings hands, when he doth his homage ; saying, I become your man from this day forward of limb and of earthly worship, and unto you shall be true and faithful, and bear faith for the tenements I hold of you. And when done to any other Lord, it is with a Saving the faith I owe unto our Sovereign Lord the King, and his Heirs. 8ly, The Sentences of Deposition against them, were given only by the Legislative power, not JUDICIAL, by way of Bill consented unto in the Parliament house by the Lord's and Commons, then sent to these Kings to their prisons, and there read unto them by Committees and Proxies, representing all the Estates in Parliament. Therefore the reading of them to these Kings in their prisons, was not properly a judgment, neither did it constitute them who read it to them their Judges, much less create the Commons Judges of these Kings. 9ly, All the Lord's Spiritual Temporal, and Commons concurred jointly in this Act of resigning their Homage to these Kings, to whom they were all jointly obliged, and in whom they had all a common interest: Et quod tangit omnes, ab omnibus debet approbari : Therefore it is no warrant for the proceedings against our late King, without the consents, and against the Express Votes of the whole House of Lord's, and of the Majority of the Commons house. 10ly, The Lord's alone, without the Commons, gave Judgment for the close and perpetual imprisonment of King Richard the 2. therefore they were his sole and proper Judges by way of Sentence, his deposition being by the Legislative, not Judicial power. 11ly, These Kings (especially the later of them) had no sentence of deposition, nor proceedings against them; til they had through fear or pusillanimity first resigned their Crowns, and kingship, as unfit to reign or govern any longer; which was made the principal ground of their subsequent declaratory depositions, by the Lord's and Commons, when they had reduced themselves into the condition of private men, by their resignations. These presidents therefore cannot justify the late proceedings against an actual, lawful, hereditary King, by a small party of the Commons house alone, without the House of Peers, or the Majority of their fellow-Members, who never resigned his Crown, nor unkinged himself, as unworthy to reign any longer. 12ly, King Edward the 2. after this his deposition, was reputed a King de jure still; and therefore styled by the whole Parliament, all the Lord's, and King Edward the 3d. himself, in 4 E. 3. n. 1, 2, 3, 4, 5, 6, 10. their King and Liege-Lord, and Mortimer, with his complices, were condemned and executed as TRAYTORS, for murdering him after his Deposing: contrary to Sir Edward Cooks false Doctrine, 3 Institutes, f. 7. And in the Parliament of 21 R. 2. n. 64, 65. the revocation of the Act for the 2. Spencers restitution in the Parl. of 1 E. 3. was repealed because made at such time by King Edward the 3. as Edw. 2. his Father BEING VERY KING was living and imprisoned: so that he could not resist the same An express resolution by these two Parliaments, that his deposition was both void in Law, and illegal. 13ly, Neither of these 2. Kings, though their articles were more heinous, and Government more unkingly, arbitrary than the late Kings, were condemned or adjudged to lo • e their heads or lives for their misdemeanors, but merely deprived of their royal Authority, with a promise to preserve their lives, and treat them nobly, and that upon this account, that they were Kings, yea anointed Kings, when they transgressed, therefore exempted from all capital censures, penalties of Laws by any human Tribunals : as David resolves, Psal. 51.4. Against thee, thee only have I sinned ; whence S. Chrysostom, S. Ambrose, Arnobius, with others in their Expositions on that Psalm, S. Jerome Epist. 22, & 47. Peter Martyr on the 2 Sam. 2.13. learned Grotius, and others conclude in these words: Liberi sunt Reges à vinculis delictorum▪ neque enim ad paenam ullis vocantur legibus, tuti Imperii potestate. Hence Otto Frisingensis Episcopus, writes thus to the Emperor Frederick; Praeterea cum nulla inveniatur persona mundialis qui mundi legibus non subjaceat, subjaciendo coerceatur SOLI REGES, utpote constituti super leges in respect of corporal penalties) DIVINO EXAMINI RESERVATI, seculi legibus non cohibentur: unde est illud tam Regis quam Prophetae testimonium ; Tibi soli peccavi. These 2. presidents therefore no ways justify the proceedings against the late beheaded King, as I before hand manifested in my Speech in Parliament, Decem. 4. and in my Memento in Jan. 1648. which gave ample satisfaction herein, not only to out 3. kingdoms at home, but to the learnedst Protestant Divines & Churches abroad both in France, & Germany, as Samuel Bochartus (an eminent French Divine ) in his Latin Epistle to Dr. Morley, printed Parisiis 1650. attests Sect 3. De Jure & potestate Regum, p. 145. Where after a large and solid proof out of Scripture, Fathers, and other Authors of the unlawfulness of our late Kings trial, judgment and Execution ; and that the Presbyterian English Ministers and Membees did then professedly oppugn, and write against it; he thus proceeds. Ex hoc numero PRYNNIUS, vir multis nominibus insignis, & Parlamenti Delegatorum unus, e carcere in quo cum pluribus aliis detenebatur, Libellum composuit Parliamento oblatum; in quo decem rationibus, iisque validissimis, contendit eos rem illicitam attentare (in proceeding Criminally and Capitally against the King;) Then reciting the Heads of my reasons against it, he concludes thus: Haec ill & multo plura, SCRIPTOR MIRE NERVOSUS, cujus verba sunt stimuli et elavi in altum defixi : After which he there proves by several instances, how much the Protestant Ministers, Churches of France and Geneva, condemned these proceedings as repugnant to Scripture, and the Principles of the Protestant Religion : And Dr. Wolfgangus Mayerus (a famous Writer and Professor of Divinity at Basil in Germany ) in his Epistle Dedicatory before his printed Latin Translation of my Sword of Christian Magistracy, supported. Basil. 1649.
14ly. When the News of K. Richards deposing was reported into France, King Charles and all his Court wondered, detested and abhorred such an injury to be done to an anointed King, to a crowned Prince, and the head of the Realm: But in especial Waleram Earl of St. Paul, which had married King Richards half Sister, moved with high disdain against King Henry, ceased not to stir and provoke the French King and his Counsel to make sharp war in England, to revenge the injury and dishonor committed and done to his Son-in-law King Richard, and he himself sent Letters of defiance to England. Which thing was soon agreed to, and an Army royal appointed with all speed, to invade England. But the French King so stomached this high displeasure, and so inwardly conceived this unfortunate chance in his mind, that he fell into his old disease of the Frenzy, that he had need according to the old proverb, to sail to the Isle of Anticyra, to purge his melancholy humor; but by the means of his Physicians, he was somewhat relieved and brought to knowledge of himself. This Army was come down into Picardy, ready to be transported into England. But when it was certainly certified that King Richard was dead, and that their enterprise of his deliverance was frustrate and void, the Army scattered and departed asunder.
But when the certainty of King Richards death was declared to the Aquitaynes and Gascons, the most part of the wisest men of the Country fell into a bodily fear, and into a deadly dread; for some lamenting the instability of the English people, judged them to be spotted with perpetual infamy, and brought to dishonor and loss of their ancient fame and glory, for committing so heinous a crime and detestable an offense against their King and Sovereign Lord. The memory whereof they thought would never be buried or extincted. Others feared the lost of their goods and liberties; because they imagined that by this civil dissension and intestine division, the Realm of England should so be vexed and troubled, that their Country (if the Frenchmen should invade it) should be destitute and left void of all aid and succor of the English Nation. But the Citizens of Burdeaux took this matter very sore at stomach, because King Richard was born and brought up in their City, lamenting and crying out, that since • he beginning of the world, there was never a more detestable or more villanous or heinous act committed: which being sad with sorrow, and inflamed with melancholy, said that untrue, unnatural, and unmerciful people had betrayed and slain, contrary to all Law and Justice and honesty, a good man, a just Prince, and lawful Governor; beseeching God devoutly on their knees, to be the revenger and punisher of that detestable offense and notorious crime. 15ly. The proceedings against King Richard the 2. in the Parliament of 1 H. 4. were in the Parliament of 1 E. 4. n. 9, 10, 11, 12. condemned as illegal, the Tyrannous usurpation of Henry the 4th. with his heinous murdering of King Richard the 2. at large set forth, his reign, declared by Act of Parliament to be an intrusion and mere usurpation, for which he and the heirs of his body are utterly dis enabled, as unworthy to enjoy any inheritance, estate, or profits within the Realm of England or Dominions of the same forever ; and that by this memorable Petition of the Commons, wherein the pedigree of King Edward the 4th. and his title to the Crown, are likewise fully set forth, a Record most worthy the public view, being never yet printed to my knowledge.
Ex Rotulo Parliamenti tenti apud Westm. anno primo Edwardi Quarti, n. 8. Memorandum quod quaedam Petitio exhibita fuit praefato Domino Regi in praesenti Parliamento per praefatos Communes sub eo qui sequitur tenore verborum. For as much as it is notary, openly, and evidently known, that the right noble, and worthy Prince Henry, King of England, the third, had issue Edward his furst gotten Son, born at Westminster in the 15 kalende of Juyll in the vigille of Seint Marce and Marcellian, the year of our Lord M.C.C.XLV. the which Edw. after the death of the said King Henry his Fader, entitled and called King Edward the furst, had issue his furst gotten Son, entitled and called after the decease of the same Edward the furst his Fader King Edward the second, which had issue the right noble and honorable Prince King Edward the third, true and undoubted King of England and of France, and Lord of Irelond ; which Edward the third had issue Edward his furst gotten Son Prince of Wales, William Hatfield secund gotten Son, Leonel third gotten Son Duke of Clarence, John of Gaunt fourth gotten son Duke of Lancaster; Edmund Langley the fifth gotten son Duke of York, Thomas Wodestoks the sixth gotten son Duke of Gloucester, and William Wyndesore the seventh gotten Son. And the said Edward Prince of Wales, which died in the life of the said King Edward the thurd his Fader, had issue Richard, which after the death of the same King Edward the third, as Cousin and heir to him, that is to say Son to the said Edward Prince of Wales, Son unto the said King Edward the third, succeeded him in royal estate and dignity, lawfully entitled and called King Richard the secund, and died without issue, William Hatfield the secund gotten Son of the said King Edward the third died without issue, the said Leonel Duke of Clarence the third gotten Son of the same King Edward had issue Phelip his only daughter and died, And the same Phelip wedded unto Edmund Mortimer Earl of Marche, had issue by the same Edmund, Roger Mortymer Earl of Marche her Son and heir, which Edmund and Phelip died, the same Roger Earl of March had issue Edmund Mortymer Earl of March, Roger Mortymer Anne and Alianore and died. And also the same Edmund and Roger sons of the foresaid Roger, and the said Alianore died without Issue. And the same Anne wedded unto Richard Earl of Cambridge, the Son of the said Edmund Langley, the fifth gotten son of the said king Edward the third, as it is afore specified, had issue that right noble and famous Prince of full worthy memory, Richard Plantagenet Duke of York : And the said Richard Earl of Cambridge, and Anne his Wife died, And the same Rich. Du. of York had issue the right high and mighty Prince Edward, our Liege and Sovereign Lord, and died, to whom as Cousin and heir to the said King Richard the Crown of the Realm of England, and the royal power, estate, dignity, preeminence and governance of the same Realm, and the Lordship of Ireland, lawfully and of right appertaineth, of the which Crown, Royal power, estate, dignity, preeminence, governance and Lordship the said King Richard the second was lawfully, rightfully and justly seised and possessed, and the same joyed in rest and quiet without interruption or molestation, unto the time that Henry late Earl of Derby, son of the said John of Gaunt, the fourth gotten son of the said King Edward the third, and younger Brother of the said Leonel, temerously against rightwisnes and Justice, by force and Arms against his faith and liegeaunce rered werre at Flynte in Wales against the said King Richard, him took and enprisoned in the Tower of London of grete violence. And the same King Richard so being in prison, and living, usurped and intruded upon the royal power, estate, dignity, preeminence, possessions and Lordships aforesaid, taking upon him usurpously the Crown and name of K. and L. of the same Realm and Lordship. And not therewith satisfied or content, but more grievous thing attempting, wickedly of unnatural, unmanly, and cruel tyranny, the same King Richard, King anointed, crowned and consecrate, and his Liege and most high Lord in the Earth, against God's Law, Mans liegeance and Oth of fidelite, with uttermost punicion attormenting, murdered and destroyed, with most vile, heinous and lamentable death; whereof the heavy exclamation in the doom of every Christian man soundeth into God's hearing in Heaven, not forgotten in the Earth, specially in this Realm of England, which therefore hath suffered the charge of intolerable persecution, punicion and tribulation, whereof the like hath not been seen or heard in any other Christian Realm by any memory or Record: Then being on Live, the said Edmund Mortymer Earl of March, son and heir of the said Roger, son and heir of the said Philip, daughter and heir of the said Leonel, the third Son of the said King Edward the third; To the which Edmund after the decease of the said King Richard, the right and title of the same Crown and Lordship, then by law, custom and conscience descended and belonged, and of right belongeth at this time unto our said Liege and Sovereign Lord, King Edward the fourth, as Cousin and heir to the said King Richard, in manner and form abovesaid. Our said Sovereign and Liege Lord King Edward the fourth, according to his right and title of the said Crown and Lordship, after the decease of the said right noble and famous Prince Richard Duke of York, his fader, in the name of Jesu, to his pleasure and loving the fourth day of the Month of March last past, took upon him to use his right and title to the said Realm of England and Lordship, and entered into the exercise of the royal estate, dignity, preeminence and power of the same Crown, and to the reign and governance of the said Realm of England and Lordship; And the same fourth day of March amoved Henry, late called King Henry the sixth, son to Henry, son to the said Hen. late E. of Derby, son to the said John of Gaunt from the occupation, usurpation, intrusion, reign and governance of the same Realm of England and Lordship, to the universal comfort and consolation of all his Subgetts and Liegemen, plentevously joyed to be amoeved and departed from the obeisance and governance of the unrightwise usurpour, in whose time, not plenty, Pees, Justice, good governance, policy, and virtuous conversatien, but unrest, inwa • d war and trouble, unright wiseness, shedding and effusion • f innocent blood, abuse of the Laws, partiality, riot, extortion, murder, rape and vicious living, have been the guiders and leaders of the noble Realm of England, in ancient time among all Christian realms laudably reputed of great honor, worship, and nobly drad of all outward Lands, then being the lau • ier of honor, prowess and worthiness of all other Realms, in the time of the said usurpation fallen from that renown unto misery, wretchedness, desolation, shameful and sorrowful decline. And to live under the obeisance, governance and tuition of their true right wise and natural Liege and Sovereign Lord. The Commons being in this present Parliament, having sufficient and evident knowledge of the said unrightwise usurpation and intrusion by the said Henry late Earl of Derby, upon the said Crown of England, knowing also certainly without doubt or ambiguity the right and title of our said Sovereign Lord thereunto, true, and that by God's Law, Mans Law, and the Law of Nature, he and none other is and ought to be their true right wise and natural Liege and Sovereign Lord. And that he was in right from the death of the said Noble and famous Prince his Fader, very just King of the said Realm of England. And the said 4. day of March in lawful possession of the same Realm with the royal power, preeminence, estate and dignity belonging to the Crown thereof, and of the said Lordship; take, accept and repute, and will forever take, accept and repute the said Edward the fourth their Sovereign and liege Lord, and him and his heirs to be Kings of England, and none other, according to his said right and title. And beseech the same their said Liege and Sovereign Lord King Edward the fourth, that by the advice and assent of the Lord's Spiritual and Temporal being in this present Parlement, and by authority of the same, his right and title to the said Crown afore specified, be declared, taken, accepted and reputed true and rightwise, the same right and title to abide and remain of Record perpetually, by the said advice, assent and authority. And that it be declared and judged by the said advice, assent and authority, that the said Henry late Earl of Derby, for the said rearing of war against the said King Richard, then his Sovereign Lord, and the violent taking, imprisoning, unrightwise usurpation, intrusion, and horrible cruel murder of him; against his faith and ligeance, wickedly and unjustly offended and hurted the Royal Majesty of his said Sovereign Lord. And that the same Henry unrightwisely, against Law, conscience, and custom of the said Realm of England, usurped upon the said Crown and Lordship. And that he, and also Henry late called King Henry the fifth, his son, and the said Henry, late called King Henry the sixth, the son of the said Henry, late called King Henry the fifth, occupied the said Realm of England, and Lordship of Irelond, and exercise the governance thereof by unrightwise intrusion and usurpation, and in none other wise. And that the taking of possession and entry into the exercise of the Royal Estate, dignity, reign and governance of the said Realm of England, and Lordship of Irelond, of our said Sovereign Liege Lord King Edward the fourth the said fourth day of March, and the amotion of the said Henry, late called King Henry the sixth, from the exercise, occupation, usurpation, intrusion, reign and governance of the same Realm and Lordship, done by our said Sovereign and Liege Lord King Edward the fourth, the said fourth day of March; was and is rightwise, lawful, and according to the Laws and customs of the said Realm, and so ought to be taken, holden, reputed and accepted. And over that, that our said Sovereign and Liege Lord King Edward the fourth, the said fourth day of March, was lawfully seised and possessed of the said Crown of England in his said right and title, and from thenceforth have to him and his heirs Kings of England, all such Manors, Castles, Lordships, honors, lands, tenements, rents, services, fees, feefarms, rents, Knights fees, advowsons, gifts of Offices, to give at his pleasure, fairs, markets, issues, fines, and amerciaments, liberties, franchises, prerogatives, escheats, customs, reversions, remainders, and all other hereditaments, with her appurtenance, whatsoever they be, in England, Wales and Irelond, and in Caleys, and the Marches thereof, as the said King Richard had in the feast of Sr. Matthew the Apostle the 23. year of his reign, in the right and title of the said Crown of England, and Lordship of Irelond, and should after his decease have descended to the said Edmund Mortimer Earl of March, son of the said Roger Mortimer Earl of March, as to the next heir of blood of the same King Richard after his death, if the said usurpation had not been committed ; or after the decease of the same Edmund, to his next heir of blood by the Law and custom of the said Realm of England the Manors, Castles, Honors, Lordships, lands, tenements, possessions, and hereditaments, with their appurtenances, which come to the hands of the said King Richard by forfeiture, by force of an Act made in a Parlement holden at Westminster the 21. year of his reign except; the said Commons beseeching our said Liege Lord to have and take all only the issues and revenues of all the said Castles, Manors, Lordships, Honors, lands, tenements, rents, services, and of other the premises aforesaid, with their appurtenances, except afore except, from the said fourth day of the said month of March, and not afore. Saving to every of the liegemen and subjects of our said Sovereign and liege Lord King Edward the fourth, such lawful title and right, as he, or any other to his use had in any of the premises the said third day of March, other than he had either of the grant of the said Henry late Earl of Derby, called King Henry the fourth, the said Henry his son, or the said Henry, late called King Henry the sixth, or by authority of any pretenced Parlement holden in any of their days. And that it be ordained, declared and stablished, by the assent, advice▪ and authority aforesaid, That all Statutes, Acts and Ordinances heretofore made, in and for the hurt, destruction and avoiding of the said right and title of the said King Richard, or of his heirs, to ask claim, or have the Crown, Royal power, estate, dignity, preeminence, governance, exercise, possessions and Lordship abovesaid be void, and be taken, holden, • nd reputed void, and for naught, adnulled, repealed, revoked, and of no force, value or effect. And furthermore consideration and respect had to the horrible, detestable, cruel and inhuman tyranny by the said Henry late Earl of Derby, against his faith and ligeance done and committed to the said King Richard, his rightwise true and natural Liege and Sovereign Lord, the unright wise and unlawful usurpation and intrusion of the same Henry upon the said Crown of England and Lordship of Irelond, the great intolerable hurt, prejudice, and derogation that thereby followed to the said Edmund Mortymer Earl of March, next heir of blood of the said King Richard, time of his death, and to the heirs of the said Edmund, and the great and excessive damage that by the said usurpations and the continuance thereof hath grown to the said Realm of England, and to the politique and peaceable governance thereof, by inward wars moved and grounded by occasion of the said Usurpation ; It be therefore Ordeined, declared and stablished by the advice, assent and authority aforesaid, for the more stablishing of the assured and undoubted inward rest and tranquility of the said Realm of England; And for the avoiding of the said usurpation and intrusion very cause and ground of the tribulation, persecution, and adversity thereof, that the said Henry late Earl of Derby, & the heirs of his body coming, be from henceforth unabled, and taken and holden from henceforth unable and unworthy, the premises considered, to have, joy, occupy, hold or inherit any estate, dignity, preeminence, enheritaments or possessions within the Realm of England, Wales or Irelond aforesaid, or in Caleys or the Marches thereof. And since that the Crown, Royal estate, dignity and Lordship above rehearsed, of right appertained to the said Noble Prince Richard Duke of York ; And that the said Usurper late called King Henry the sixth, that understanding, to the intent that in his opinion he might the more surely stand and continue in his usurpation and intrusion of and in the same Crown, Royal estate, dignities, and Lordship evermore, intended and labored continually by subtle imaginations, frauds, deceits and exorbitant means, to the extreme and final destruction of the same noble Prince Richard and his issue. And for the execution of this malicious and damnable purpose therein▪ in a pre • ence Parliament by him and his usurped authority holden at Coventree the 38 year of his usurped Reign, without cause lawful or reasonable, declared and judged the same noble Prince Richard, and the Noble Lord's his Sons, that is to wit Edward then Earl of March, and now the King our Sovereign Lord abovesaid, and Edmund Earl of Ruthland, to be his Rebels and Enemies, them, and all their issue dis-inheriting of all name, state, title, and preeminence, tenements, possessions and enheritaments for evermore, cruelly, wickedly and unjustly, and against all humanity, right and reason ; whereby the said noble Prince Richard and his sons above named, were compelled by the dread of death to absent them for a time out of this Realm of England, the natural land of their birth, unto their intolerable hurt, prejudice, heaviness and discomfort. And where after these the said noble Prince Richard Duke of York using the benefice of the Law of Nature, and sufficiently accompanied for his defense and recovery of his right to the said Crown of the said Realm came thereunto, not then having any Lord therein above him but God. And in the time of a Parliament holden by the said Henry, late called King Henry the sixth, the sixth day of October, the 39 year of his said usurped reign, intended to use his right, and to enter into the exercise of the royal powers, dignitees, and Lordships abovesaid, as it was lawful, and according to Law, reason, and justice him so to do ; and thereupon shown, opened, declared, and proved his right and title to the said Crown, to fore the Lord's Spiritual and temporal, and Commons being in the same Parlitment, by ancient matters of sufficient and notable Record, undefaisible; whereunto it could not be answered or replied by any matter that of right ought to have deferred him then from the possession thereof; yet nevertheless for the tender zeal, love, and affection that the same Duke bare of Godly and blessed virtues, and natural disposition to the restfull governance and policy of the same Realm, and the Common well thereof, which he loved all his life, desired and preferred afore all other things earthly, though, all the seid Lord's spiritual and temporal, after long and mature deliberation by them had by good advice, upon the said right and title, and the authorities and Records proving the same, the answers thereunto gives, and the repl • cations to the same made, knew the same right and title true, by them and the seid Commons so declared, accepted and admitted in the same Parliament. I • liked him, at the grete instance, desire and request of the seid Lord's, solemnply, and many times unto him made, to assent and grant unto a convention, concord and agreement between the seid Henry, late called King Henry the sixth on that op • party, and him on that other, upon the seid right and title by the same late called King, by the advice and assent of the seid Lord's Spiritual and Temporal, and Commons, being in the seid Parliament auctorized, in the same, comprehending, among other, that the seid Usurper, late called King Henry the sixth, understanding certainly the seid title of the said Richard Duke of York, just, lawful, true and sufficient, by the advis and assent of the Lord's Spiritual and Temporal, and Commyns in the seid Parliament assembled, and by authority of the same, declared approved, ratified, confirmed and accepted the seid title, just, good, lawful and true, and thereunto gave his assent and agrreement of his free will and liberty; And over that by the seid advis and authority, declared, affirmed, and reputed the seid Richard Duke of York very true and rightful heir to the Crowns, Royal estate and dignity of the Realms of England & France, and Lordship of Irelond aforeseid: And that according to the worship and reverence thereto belonging, he should be taken, accepted and repu • ed in worship and reverence by all the Estates and persons of the seid Realm of England. The seid Usurper late called King Henry the sixth, saving and reserving to himself the seid Crowns, Realms, royal estate, dignity and preeminence of the same, and the seid Lordship of Ireland during his life natural. And further more by the same advice and authoti • e would, consented and agreed, that after his decease, or when it should please him to lay from him the seid Crowns, estate, dignity, and Lordship, or thereof ce •• ede, the seid Richard Duke of York and his heirs should immediately succeed him in the seid Crowns, Royal Estate, dignity and Lordship, and them then have and enjoy, any Act of Parliament, Statute, Ordinance or anything to the contrary made, or interruption, or discontinuance of possession notwithstanding: And if any person or persons from thencefor • h imagined or compaced the death of the seid Richard Duke of York, it be deemed and judged high Treason, in manner and form as it is specified in the seid Act; And that the seid Noble Prince Richard Duke of York, by way and consideration of recompense for his abstaining for a time of the exercise of the seid royal power of the benign and noble disposition that he bare to the said Common well, and to the rest and tronquillity of the seid Realm, should have Castles, Manors, lands and tenements to the value of 10 Mil. Marc. whereof the Earldom and City of Chester was parcel, assigned to the said Duke by special Act made in the seid Parliament, the which Earldom and City the seid Duke gave among other unto our seid Sovereign Lord then being Earl of March, as parcel of Manors, Lordships, lands and tenements of the yearly value of 3 Mil. Marc. which, by virtue of the seid convention and concord, and the Act thereof made, was given unto him for the sustentation of his estate; abiding and persevering like a true Christian and honorable Prince, in full purpose to keep and observe the seid Convention and concord for his party, trusting verily that the seid Usurper Henry, late called King Henry the sixth, would have truly, faithfully, justly keped and observed for his party the same convention and concord inviolable, as by Law, reason, Princely honor and duty he was bounden to do; and not have departed and varied from such convention made of so high and so great authority as it was made, whereunto neither our seid Sovereign Lord, ne the seid noble Prince assented, but without prejudice of the seid right and ritle, as it is plainly specified in the s • id Act made upon the seid convencion and Concord, and under protestation and condition, that the seid Usurpour should keep and perform without fraud or male ingyne, all things therein contained for his seid party, declared openly by their mouths in the presens and heryng of the said Lord's in the seid Parliament, and therein enacted of Record, at the grete instance and prayer of the same Usurpour, late called King Henry the sixth; And at the solempne request of all the seid Lord's, for the tender and special zeal, love, and affection that he bare to the rest of the seid Realm, and to the Commyn well and policy thereof, toke his viage of good, blessed and virtuous intent, and disposition toward the North parties of the said Realm, to repress and subdue certain riots, rebellions, insurrections, and commotions there begun. And the premises notwithstanding the seid Henry Usurpour, late called King Henry the sixth, continuing in his old rancor malice, using the fraud and malicious disceit and dissimulation against truth and conscience that accord not with the honor of eny cristen Prince, to thentent that the said Agrement, concord and Act should take no due effect : And into the frustacion of the same in the matiers and things above reherced; that is to say, that neither the seid Richard Duke should have ne enjoy the same Castells, Manoirs, lands and tenements, name, title, reverence and worship above reherced, neither he ne his sons and heirs succeed in the seid Corones, Royal estate, dignity, lordship, after the tenure, fourm and effect of the said agreement, concord and Act, with all subtle imaginacions and disceitful ways and means to him possible intended, and covertely labored, excited and procured the final destruction, murdre and death of the said Richard Duke, and of his Sons, that is to sey of our seid new Sovereign Lord King Edward the fourth, then Earl of March, and of the noble Lord Edmund Earl of Ruthlande : And for the execution of his damnable and malicious purpose, by writing and other messages, moeved, excited and stirred thereunto the Dukes of Excester and Somerset, and other Lord's, being then in the North parties of this Realm; whereupon at Wakefeld in the Shire of York, the seid Duke of Somerset falsely and traitorously the same Noble Prince, Duke of York, on Teiusday the 30 day of Decemb. last passed, horribly, cruelly, traitorously murdered, And also the worthy and good Lord's Edmund Earl of Ruthland, Brother of our seid Sovereign Lord, and Richard Earl of Salesbury. And not therewith content, of their insatiable malice after that they were deed made them to beheaded with abominable cruelty and horrible despite, against all humanity and nature of Nobles, And after that the same Henry Usurpour gretely and wonderfuly joying the seid dolorous and piteous murder of the same noble Prince and worthy Lord's, to the Realm, an heavy and a lamentable sorrow, and lost; forthwith, and oftentimes after openly declared to divers Lord's of the same Realm, That he would not in any wise keep the seid Convencioun and accord, ne the act thereof made: and to the infraccion and violatiation of the said convention and concord, not only sent Letters made under his prive Seal unto certain Knights and Squiers, commanding and charging them by the same, to spoil and disseise our seid Sovereign Lord by the name of Earl of March, of his possession of the seid Earldom and Citee of Chester, whereof he was lawfully possessed and ceased by virtue and reason of the seid Convencion and Concord, but also of extreme violence, utter and final breche of his party of the seid convencions and concord, sent out writs under his Seal to the Mayer, Aldermen, and Commonalte of the Citee of London, bering date the 22 day of Feverere last past, and other like Writs to divers Officers, Governors, and Ministers of divers other Citees, and to many Shires and Burroughs of the seid Realm, to make falls, untrue and injust proclamations against our seid Sovereign and Liege Lord K. Ed. the 4th. by the name of Ed. late E. of March, to provoke and excite his destruction. And also by his Letters signed with his hand directed unto the seid Dukes of Excester and Somerset, and other Lord's refused and denied to keep and observe the seid accord, convention and agreement, and by the same writing falsifying his promise, departed from the same Convention and accord, afore either the same our Sovereign Lord, or the seid noble Prince his Fader anything did, or attempted to the contrary of the same convention and concord for their party. Be it declared and juged by the seid advis, assent and authority, the premises considered, that the seid Usurper Henry, late called Henry the sixth, against good faith, troth, conscience, and his honor, brake the seid Convention and concord, and departed therefrom of willful malice long afore the seid fourth day of March, as by the matters afore declared it appeareth sufficiently: And that the breche thereof on his party, discharged our seid Sovereign Lord of all things that should or might charge him to the keeping thereof in any Article or point after the seid breche. And that he was then at his freedom and liberty to use his said right and title of the seid Crowns, and to enter into the exercise thereof, and of the Royal power, dignity and preeminence longing thereunto, as he lawfully did in manere and fourm above specified, the seid convention and concord, and the Acte thereupon made, or anything therein contained notwithstanding. And over this it be declared and juged by the seid advis, assent and authority, that the seid agreement, concord, and Act, in all things which been in any wise repugnant or contrary to the seid right, title, entree, state, seasen and possession of our Sovereign Lord King Edward the fourth, in and to the Crown Royal, estate, dignity and Lordship above said, be void and of no force ne effect. And that it be Ordeyned and stablished by the seid assent, advis and authority, that every person having any parcel of the seid Castles, Manors, Lands, Honors, tenements, rents, services, possessions or hereditaments aboveseid, the which were given in exchange, or in recompense of or for any other Manors, Castles, lands, tenements, rents, advowsons, fee-farms, reversions, or any other possessions or enheritaments given to the seid Henry late Earl of Derby, to the seid Henry his son, late called King Henry the fifth, or to the seid Henry his son late called King Henry the sixth, or to any other person or persons to or for their or any of their use at their or any of their desire, or to perform & execute their or any of their wille, mowe, entre; And that they and their heirs and successors entre into the same Manors, Castles, Lands, tenements, rents, services, possessions, advowsons or hereditaments so given, And them have, hold, keep, joy, occupy and inherit of like estate as the giver or givers thereof had them at the time of the gift thereof made, though it be so that in any of the Letters Patents or gifts made of any of the premises, no mention be made of any recompense or eschange. Qua quidem petitione in Parliamento praedicto lecta, audita, & plenius intellecta, de avisamento & assensu Dominorum Spiritualium & Temporalium in eodem Parliam. existen. & ad requisitionem Communitatis praedictae, respondebatur eidem, modo & forma hic Inferius annotatis.
The King, by the advice and assent of the Lord's Spiritual and Temporal in this present Parliament assembled, at the request of the Commyns being in the same, agreeth and assenteth to this Petition, and it accepteth, with certain moderations, provisions and exceptions by his Highness thereupon made, and in schedules written, and in the same Parliament delivered, the tenours of which hereunder follow, &c.
This Judgment, censure, repeal in full Parliament of the deposition and proceeding against King Richard the 2. upon the Commons own Petition, by this Act, never yet reversed, as most wicked, treasonable, unrighteous, against God's Laws and Mans, crying for vengeance in God's hearing in heaven, and exemplarily punished upon the whole kingdom, Nation, and Henry the 4. his posterity on earth, with the sad intestine wars, miseries that attended it, are sufficient arguments of its unlawfulness & detestableness, against all those who deem it just, or allege it for a president to justify their extravagances of a more execrable and transcendent Nature. 16ly, It is very observable, that Roger Mortimer, Earl of March, who had the chief hand in deposing, murthering King Edward the 2. after he was deposed, was in the Parliament of 4 E. 3. condemned and executed for it as a Traitor, without any legal trial, all his lands confiscated; and Queen Isabel herself (who concurred with him) like to be questioned for her life and abridged in her maintenance. Moreover, King Richard the 2. Granchild and next heir to King Edward the 3. who imprisoned, deposed and invaded his Fathers throne, (though somewhat against his will) was imprisoned, deposed, proceeded against in the self same manner as Edw. the 2. was, by his very president, and soon after murdered (like as Edw. the 2. was) by King Henry the 4. After which king Henry the 4. his Granchild, Henry the 6. was also in the self same manner, imprisoned, deposed, attainted of high Treason, with his Queen and Adherents in the Parliament of 1 Edw. 4. n. 8. to 33. and at last murdered by Edw. the 4. his procurement, to secure the Crown to himself and his Posterity. Yet no sooner was King Edw. the 4. dead, but his own Brother Richard Duke of Gloucester, (who by his instigation murdered King Henry the 6. with his own hands) procuring himsel • to be Protector of his son, King Edw. the 5. then young, getting his Brother and him into his custody by treachery, perjury, and hypocrisy, caused them both to be barbarously murdered, to set the Crown on his own head; which he most ambitiously aspired after, yet seemed unwilling to embrace, till enforced to accept it, by a Petition and Declaration (drawn up by his own Instruments) presented to him, in the name of the Lord's Spiritual and Temporal, and Commons of the Realm of England ; wherein he branded his Brother king Edw. the fourth his marriage, as illegal, and his issue as illegitimate ; aspersed his Life and Government, as one by whom the Laws of God, of God's Church, of the Land, and of nature, and also the laudable Customs and Liberties of England (wherein every English man is inheritor) were broken, subverted, contemned, against all reason and justice; So that the Land was ruled by self-will and pleasure, fear and dread, all manner of Equity and Law laid apart and despised, so that no man was sure of his life, land, or livelihood; and many inward discords, battles, effusion of much Christian blood, and destruction of the Nobles blood of this land, ensued and were committed through all the Realm, unto the great sorrow and heaviness of all true Englishmen. And then he declared himself, undoubted heir and inheritor of the Crown by descent, grounded on the Laws of God and Nature, and the ancient Laws and laudable Customs of this Realm ; yet for further security superadded another Title, of lawful Election by the three Estates in Parliamen • ; then he intayled the Crown upon the issue of his body begotten, and declared his son Prince Edward to be his heir apparent, to succeed him in the Crown and royal Dignity by Act of Parliament, which he ratified with his own royal assent. This done, he reputed the Crown cock-sure to him and his heirs for all generations. Yet notwithstanding all his Machiavilian Policies, Power, Vigilancy, care, industry to secure his usurped Royalty, by the murder of two Kings and many others, (some of them most instrumental to advance him to the royal Throne) before he had worn the Crown full 3. years, Henry Earl of Derby laying Title it, and landing in Wales only with 2000 soldiers, King Richards own Soldiers, Friends and others revolting from him, and joining with the Duke; he was slain in Posworth field, and lost both his life and Crown together, if not his soul for all eternity: and by the Statute of 1 H. 7. c. 6. he was declared an Usurper of the Realm. So unable are Parliaments themselves to secure Crowns on Usurpers heads, or to entayl them for any long continuance on their Posterities ; as these sad tragical domestic presidents of later times with sundry antienter demonstrate.
King Henry the seventh, having gained actual possession of the Crown, as right heir thereunto by the Lancastrian line, and espoused the better title of York, by marrying the heir female; to secure himself and his adherents for the future, if any wars should arise about these dubious litigious Titles by Perkin Warbecks or others claims, confirmed by several Acts of Parliament, and Successions of Kings of both Houses, claiming both as next heirs of the ancient royal Line ; not to secure any future Usurpers, without just right or title, though not of the old blood Royal, if once Kings de facto, as Sir Edward Cook seems to intimate, and some ignorant Lawyers assert, (against the intent and Prologue of the Act itself,) caused it to be enacted, 11 H. 7. c. 1. That from henceforth no person or persons whatsoever, that attend upon THE KING and Sovereign Lord of this Land for the time being in his person, and do him true and faithful Service of allegiance in the same, or be in other places by his commandment in the wars within the Land or without; shall for the said deed, and true duty of allegiance, be in no wise convict or attaint of High Treason, or other offenses for that cause by Act of Parliament, or otherwise, by any process of Law, whereby he or any of them shall lose or forfeit life, lands, goods, chattels, or any other things; but to be for that deed and service utterly discharged of any vexation, trouble or loss. And if any Act or Acts, or any other process of the Law hereafter thereupon for the same happen to be made, contrary to this Ordinance, that then that Act or Acts, or other process of the Law, whatsoever they shall be, shall stand & be utterly void : The reason is rendered in the Prologue; That it is not reasonable, but against all Laws, reason and good conscience, that the said Subjects going with their Sovereign Lord in wars, attending upon his person, or being in other places, by his commandment, within this Land or without, anything should lose or forfeit for doing their true duty and service of Allegiance. This Act (which some conceive to be only personal and temporary for Henry the 7. alone) could not secure the Heads, Lives, Liberties, Lands, Offices, Goods or Chattels of those Lord's, Gentlemen, and other English Subjects, from Executions, Imprisonments, Banishments, Forfeitures, Sequestrations, who accompanied, assisted our late King in his wars against the Parliament, though King de facto, and de jure too, without any competitor: Both Houses declaring them to BE TRAYTORS, and sequestering, proceeding against them as Traitor, yea our Grandees since have executed them as such, in their new erected High Courts : How then it can totally indemnify any Perkin Warbecke, Jack Cade, or apparent Usurpers of the Crown without right or Title, who shall per fas aut nefas, get actual possession of the Royal throne, and be Kings de facto ; or secure all those who faithfully adhere unto them (though to dispossess the King de jure, or his right heir of their just royalty and right, against all Laws of God, man, all rules of justice, and their very Oaths of Allegiance, Supremacy, Homage, Fealty, Protestations, Leagues, Covenants formerly made unto them) from all suits, vexations, losses, forfeitures whatsoever, and null all Act or Acts, and legal Process made against them (as many Grand Lawyers now conceive it doth) transcends both my Law and reason too. That opinion of Sir Edward Cook 3. Instit. f. 7. & 9 E. 4. f. 1. b. (whereon this erroneous Gloss is grounded) That a King regnant in possession of the Crown and kingdom, though he be Rex de facto, & non de jure; yet he is, Seignior le Roy, within the purview of the Statute of 25 E. 3. ch. 2. of Treason: and the other King that hath right and is out of possession, IS NOT WITHIN THIS ACT. Nay, if Treason be committed against a King de facto, et non de jure, and after the King de jure cometh to the Crown, he shall punish the Treason done to the King de facto. And a pardon granted by a King de jure, that is not also de facto, is void : being no doubt a very dangerous, and pernicious Error both in Law and policy, perverting those Laws which were purposely made for the preservation of the Lives, Crowns, Rights, Titles, Persons of lawful Kings, against all attempts, Treasons, Rebellions against them; and for the exemplary punishment of all Traitors, Rebels, Usurpers who should rebel, wage war, or attempt any Treason, Conspiracy against their royal Persons, Crowns, Dignities, Titles; into a mere Patronage of Traitors, Rebels, Usurpers and a Seminary of endless Treasons, Assassinations, Conspiracies against them; by indemnifying, exempting both them and their Confederates from all legal prosecutions, penalties, forfeitures whatsoever, if they can but once gain actual possessiō of the Crown by any means, upon the forcible expulsion, deposition, assassination, or murder of the King de jure. Which if once declared for Law, I appeal to all Lawyers, Politicians, Statesmen whatsoever, whether it would not presently involve our kingdoms in endless, perpetual Rebellions, Usurpations, War, Regicides, as it did the Norwegians heretofore: where by a kind of Law and Custom, as our Gulielmus Nubrigensis relates: Q • cunque Rege tyrannice occiderat, eo ipso personam et potestatem Regiam induens, suo quoque occisori tandem post modicum fortunam inveteratae consuetudinis lege relicturus. Quippe ut dicitur) à centum retro annis et eo amplius, cum Regum ibidem numerosa successio fuerit, Nullus eorum senio aut morbo vitam finivit, fed omnes ferro interiere, suis interfectoribus, tanquam legitimis successoribus, regni fastigium relinquentes: ut scilicet omnes qui tanto tempore ibidem imperasse noscuntur, illud quod Scriptum est respicere videatur ; OCCIDISTI INSUPER ET POS SEDISTI. Wherefore to prevent the dangerous Consequences of these false Glosses on the Statutes of 25 E. 3. c. 2. & 11 H. 7. c. 1. I shall lay down these infallible grounds: 1. That all public Laws are and ought to be founded in Justice, righteousness, and common honesty, for the preserving, securing the lives, persons, estates of all men, especially of lawful Kings and Supreme Magistrates from all violence, invasion force, disseisins, usurpations, conspiracies, assassinations, (being against all rules of Law and Justice,) Exod. 20.12. to 18. c. 21, & 22. & 23. Mat. 5.17. to 48. c. 7. 12. Deut. 4.18. Psal. 19.8.9. Ps. 119.7.106, 137, 138·160, 167. Rom. 7.12. Deut. 6.25. Ps. 33.5. Ps. 45.7. Ps. 72.2. Ps. 74.15. Prov. 8.18. Prov. 24.21. Rom. 13.1. to 7. Lu. 20.25. Tit. 3.1, 2, 3. 1 Tim 1.9, 10. Job 20.19. c. 24.2. Mich. 2.1, 2, 3, 4. Jer. 6.7. c. 20.8. c. 22.3.17. Ezech. 45. c. Hab. 1, 2. to 10. Lu. 3.14, Whence Cicero thus defines Law; Lex est ratio summa, insita in natura, quae jubet ea (justa) quae facienda sunt, prohibe que contraria. Therefore these 2. Statutes were purposely made for those great ends, and ought to be interpreted only for the best advantage of Lawfull Kings and their adherents; not for the indemnity, impunity, encouragement of Traitors, Rebels, Intruders, Usurpers. 2ly, What Tully writes of the Roman Senators, we ought to do the same of our English Parliaments and Legislators: Ea virtute et sapientia majores nostri fuerunt, ut legibus scribendis nihil sibi aliud quam salutem atque utilitatem reipublicae proponerent. Whence he there infers: A Legibus nihil convenit arbitrari, nisi quod reipublicae conducat, proficisci; quoniam ejus causa sunt comparatae. Therefore these Laws are to be interpreted for the best security, safety, preservation of the lawful heads of the Commonwealth, and their rightful heirs and loyal dutiful subjects; not for their destruction, and the indemnity, security of Usurpers, Traitors, Rebels, aspiring after their Crowns, Thrones, Assassinations, to the public ruin. 3ly, All the branches of the Statute of 25 E. 3. c. 2. ( made at the special request of the Lord's and Commons, and that by a lawful King at that season) declare this Statute to be meant only of a lawful King whiles living, whether in or out of actual possession of the Realm, not of a bare Usurper in possession without right, as Sir Edward Cook expounds it: else it will necessarily follow That it shall be no Treason at all to compass or imagine the death of the King de jure (if once dispossessed for a time by Violence and Treason) or of his Queen, or eldest son and heir ; or to violate his Queen or eldest daughter not married : or to levy war against the lawful King in his Realm, or to be adherent to his Enemies within the Realm or elsewhere, or to counterfeit his Great or Privy Seal or money; &c. But high Treason in all these particulars in relation only to the Usurper in possession, without and against all right and Title: which would put all our rightful Kings and Supreme Governors into a far worser, sadder condition, than their Trayterous Usurpers: and into a worse plight than every Disseisee, or lawful heir intruded upon by abatement, or dispossessed by torcions, unjust, or forcible entries ; for which our Common and Statute Laws have provided many speedy and effectual means of recovering their possessions, and Damages too against Disseisor • ; Abators, Intruders on their Inheritances, Freeholds; & for exemplary punishment, fining, imprisonment of the Disseisors, Abaters ; but no means of recovery at all for our dishinherited, disposse • ed Kings or their heirs against Intruders, Usurpers of their Crowns ; nor punishments against them, their Confederates, or Adherents, if our Laws concerning Treasons extend not unto them, though Kings de jure, but only to Usurpers de facto, et non de jure ; and if the Statute of 11 H. 7. exempt them from all kinds of penalties, forfeitures by the lawful King, when he regains possession of the Crown; as some now expound them, 4ly. It is resolved both by our Statutes, Judges, Lawbooks, over and over: That there is no Inter-regnum in our hereditary kingdom, or any other: That so soon as the rightful hereditary King dies, the Crown and Realm immediately descend unto and are actually vested in the person and possession of the right heir, before either he be actually proclaimed or crowned King▪ and that it is high Treason, to attempt anything against his Person or royal authority before his Coronation, because he is both King de jure, & de facto too : as was adjudged in Watson's and Clerks case, Hill. 1. Jacobi : Hence upon the death of King Henry the 3. though Prince Edward his heir was absent out of the Realm in the holy wars, where he received a dangerous wound by an assassinate, and was not certainly known to be alive; yet all the Nobility, Clergy and people going to the high Altar at Westminster, swore fealty and allegiance to him as their King, appointed a New Seal and Officers under him, qui thesauram Regis & pacem regni fideliter custodirent: Sicque pax Novi Regis Edwardi in cunctis finibus regni proclamatur ; Edwardo fidelitatem Jurantes; qui si viveret penitus ignorarunt. Besides it is both enacted, resolved in our Statutes, Lawbooks, That Nullum tempus occurrit Regi : and that when the King is once in legal possession of his Crown Lands, or any Lands holden of him by reason of his Praerogative, he who enters or intrudes upon them, shall gain no freehold thereby: yea, if the Kings Tenant dieth, and his heir enter into the lands his ancestors held of the King, before that he hath done his homage and received seisin of the King, though he hath a right of inheritance to the Lands by Law, yet he shall gain no freehold, and if he die, yet his wife shall not be endowed, because he gained no freehold, by his entry, but only a naked possessiō ; much les then shall a mere Intruder gain any Freeheld or interest in the Crown or Crown lands itself, to the prejudice of the rightful King or his heirs; This is most evident, by the sacred presidents of K. David, still King, when unjustly dispossessed & driven out of his kingdom by his unnatural Son Absalom, who made himself King de facto : (who was yet a traitor with all his Adherents, and came to a tragical end) 2. Sam. c. 15. to c. 20. by the case of Adonijah the Usurper and his Adherents, slain and degraded as Traitors; and of the Usurper Athaliah, who had near 7. years possession of the Throne, and slew all the blood royal, but Joash ; yet was she dispossessed, slain as a murderer, traitor, usurper, and Joash the right heir set upon the Throne, and crowned King by Jehoiada the high Priest, the Captains and Rulers of the host, and Officers, people of the Land who all rejoiced and the City was quiet after that they had slain Athaliah with the sword; 2 Kings 11. 2 Chro. c. 23. And as this was God's Law amongst the Jews: So it was the ancient Law of England, under the ancient Britons ; as is evident by the case of the Usurper Vortigern, who af • er his Usurpation of the Crown by the murder of two rightful Kings, Constantine and Constance, and near 20 years possession by usurpation; the Britons calling in and crowning Aurelius Ambrosius the right heir, for their lawful King, he was prosecuted by him, as a Traitor both to his Father and Brother, whom he caused to be murdered to gain the Crown, besieged, assaulied and burnt to death in the Castle of Genorium in Wales with all his adherents that were in it. This Law continued not only under our Saxon Kings, but English too: as is evident by the case of Qu. Maud, reputed a lawful Queen, notwithstanding the usurpation, Coronation and actual possession of King Stephen in her absence▪ all whose grants of the Crown lands were resumed by her Son King Henry the 2. and King Stephens Charters and Grants of them, resolved null and void against King Henry, because made by a Usurper, and Invader of the Crown.
King John in the year 1216. was renounced by most of his Nobles, Barons, people, who elected, crowned, and swore allegiance to Louis, as their King ; and dispossessed King John of all or most of the Realm: who thereupon, at his death, cum summa mentis amaritudine, maledicens, & non valedicens omnibus Baronibus suis, pauper & omni thesauro destitutus, nec etiam tantillum terrae in pace • inens, ut vere JOHANNIS EXTORRIS, diceretur, ex hac vita miserrime transmigravit ; Henricum primogenitum suum REGNI CONSTITUENS HAEREDEM; Yet no sooner was he dead, though Louis was K. de facto, and that by the Barons own election, who called him in and crowned him; but Gualo the Popes Legat, and many of the Nobles and People as • embling at Gloucester, there crowned Henry his Son, for their true and lawful King at Gloucester, cogente necessitate: quoniam Westmonasterium, ubi locus est ex consuetudine regiae consecrationis deputatus, tunc ab inimicis suis suit obsessum. After his Coronation he received the homages and fealties of all the Bishops, Earls, Barons, and others present at his Coronation, Sicque Nobiles Universi & Castellani, eo multo fidelius quam regi Johanni adhaeserunt, quia propria patris iniquitas, UT CUNCTIS VIDEBATUR, filio non debuit imputari, After which most of the Nobles and English deserting Louis, submitted themselves to Henry as their lawful Sovereign, routed the French forces, besieged Louis in London, forced him to swear that he would depart the Realm, and never to return more into it during his life, and presently restore all the Lands and Castles he had taken in England, by war, and resign them to King Henry: Which he accordingly performed. Most of the Barons who adhered to Louis, and submitted themselves to King Henry, were by agreement restored to all their rights, inheritances and Liberties: But some Bishops, Abbots, Priors, Secular Canons, and many Clergy-men, qui Ludovico & Baronibus consilium praestuerant, et favorem, and continued obstinare, were excepted out of the composition between King Henry and Louis, and thereupon deprived of their livings, goods, and forced to make fines and compositions, for adhering to the Usurper Louis, though King de facto for a season. Therefore a King de facto, gets neither a legal freehold against the King de Jure, or his heirs; nor can he indemnify his adherents against his Justice, who are still Traitors by adhering to him though crowned: and the King de jure may punish them as such. 5ly, Since the Statute of 25 E. 3. (which altered not the Law in this point before it) in the Parliaments of 1 E. 4. ro • . Parl. n. 8. to 37.4 E. 3. n. 28. to 41.14 E. 4. n. 34, 35, 36. King Henry the 6. himself, (though king de facto for 39. years, and that by Act of Parliament, and a double descent from Henry the 4th, and 5th, Usurpers and Intruders) together with his Queen, and sundry Dukes, Earls, Barons, Nobles, Knights, Gentlemen who adhered to him in his wars against Richard Duke of York, and Edward the 4th, King de jure ; were all attainted of high Treason, all their lands, goods, chattels forfeited, some of them executed as Traitors, for adhering to Henry the 6. and assisting him in his wars against Edward the 4th. king only de jure, it being adjudged High Treason within the Statute of 25 E. 3. against Sir Edward Cooks fond opinion to the contrary. As for the Year-book of 9 E. 4. f. 1. b. that the King de jure when restored to the Crown, may punish Treason against the king de facto, who usurped on him, either by levying war against him, or compassing his death, it was so far from being reputed Law in any age, (being without and against all Presidents) or in King Edward the fourths reign, that those who levied war against Henry the 6. were advanced, rewarded as loyal Subjects, not punished as Traitors for it, by King Edward the 4th, when actually King; It being not only a disparagement, contradiction to the Justice, Wisdom, Title, Policy, and dangerous to the person, safety of any King de jure, to punish any of his Lieges, Subjects for attempting the destroying, deposing of an Usuper of his Crown, and Archtraytor to his person; but an owning of that Usurper as a lawful King, against whom high Treason might be legally committed, and a great discouragement to all loyal Subjects for the future, to aid him against any Intruders that should attempt or invade his Throne, for fear of being punished as Traitors, for this their very loyalty and zeal unto his safety. Moreover all the gifts, grants made by Henry the 4, 5, 6. themselves; or in and by any pretenced Parliaments under them, were nulled, declared void, and resumed, they being but mere Usurpers and kings de facto, not de jure. 6ly, It is the judgment, resolution of learned Politicians, Historians, Civilians, Canonists, Divines, as well Protestants as Papists, Jesuits, and of some Levellers, in this age, that it is
9ly, Since the Statute of 11 H. 7. c. 1. (some clauses whereof, making void any Act or Acts of future Parliaments and Legal process against it, are merely void, unreasonable, and nugatory, as Sir Cook himself affirms of Statutes of the like nature) there have been memorable Presidents, Judgments in point against his and others false glosses on it in favor of Usurpers, though King or Queen de facto, and their Adherents, against the lawful Queen and heir to the Crown, which I admire Sir Edward Cook, and other Grandees of the Law forgot, or never took notice of, though so late and memorable.
King Edward the 6. being sick and like to die, taking notice, that his Sister Queen Mary was an obstinate Papist, very likely to extirpate the Protestant Religion, destroy that Reformation which he had established, and usher in the Pope and Popery, which he had totally abandoned, by advice of his Council instituted and declared by his last will in writing, and Charter under the Great Seal of England, the Lady Jane (of the blood royal, eldest Neice to King Henry the 8. a virtuous Lady and zealous Protestant, without her privity or seeking) to be his heir and Successor to the Crown immediately after his death ; for the better confirmation whereof, all the Lord's of his Privy Council, most of the Bishops, Great Officers, Dukes, Earls, Nobles of the Realm, all his Judges and Barons exept Hales, the Serjeants and great Lawyers, with the Mayor and Aldermen of London, subscribed their Names, and gave their full and free assents thereto: whereupon immediately after King Edwards death, July 9. 1553. Jane was publicly proclaimed Qu. of this Realm, with sound of trumpet, by the Lord's of the Council, Bishops, Judges, Lord Mayor and Aldermen of London: So as now she was a Queen de facto, backed with a very colorable Title from King Edward himself, his Council, Nobles, Judges, and the other subscribers to it, being likewise eldest Niece to King Henry the 8. of the blood-royal. For defense of her person and Title when proclaimed Queen, and to suppress Mary the right heir, the Council speedily raised a great power, of 8000 foot, and 2000 horse, of which the Duke of Suffolk was first made General, being her Father, but soon after the Duke of Northmberland by Commission from the whole Council in Queen Janes Name, who marched with them to Cambridge, and from thence to St. Edmunds Bury, against the Lady Mary, Queen only de jure, not de facto. But many of the Nobles, and the generality of the people inclining to Queen Mary the right heir, and resorting to her aid to Fotheringham Castle ; thereupon the Council at London repenting their former doings, to provide for their own safety, on the 20. of June 1553. proclaimed Mary Queen ; and the Duke of Northumberland hearing of it, did the like in his Army, who thereupon deserted him. From which sudden alteration, the Author of Rerum Anglicanarū Annals, printed Lond. 1616. l. 3. p. 106. hath this memorable observation. Tali tamen & constanti veneratione nos Angli legitimos Reges prosequimur, ut ab eorum debito obsequio nullis fucis aut coloribus, imo ne Religions quidem obtentu, nos divelli patiamur: cujus rei Janae hic casus, indicium poterit esse plane memorabile. Quamvis enim Dominationis illius fundamenta validissima jacta fuissent, cui et summa art superstructum est, quam primum tamen Regni vera et indubitata haeres se Civibus ostendit, omnis haec accurata structura concidit illico, & quasi in ictu oculi dissipata est: idque eorum praecipue opera, quorum propter Religions causam propensissimus favor Janae adfuturus sperabatur, &c. All the Martyrs, Protestant Bishops and Ministers, imprisoned and burnt by her: humbly requiring, and in the bowels of our Lord Jesus Christ beseeching all that fear God, to behave themselves as obedient Subjects to the Queens Highness, and the superior powers which are ordained under her, rather after their example to give their heads to the block, than in any point to rebel against the Lord's anointed, Queen Mary: in no point consenting to any Rebellion or sedition against her Highness; but where they cannot obey, but must disobey God, there to submit themselves with all patience and humility to suffer as the will and pleasure of the higher powers shall adjudge. Against the doctrine, practice of some new Saints of this iron age, who will ward off Christ's wooden Cross, with their iron swords, and rather bring their Sovereigns heads to the block, than submit their own heads unto it for their very Treasons, and Rebellions against them. So far are they from believing, practicing the very first Alphabetical Lesson of our Savior's prescription, and real Christianity, Mat. 16.24. If any man will come after me, let him deny himself, and take up his cross and follow me.
The Duke of Northumberland for that he was appointed General of the Army in this Quarrel of the Lady Jane, though Queen de facto, was arrested of High Treason, together with 3. of his Sons, the Marquess of Northampton, the Earl of Huntindon, with sundry Knights, Gentlemen, and sent prisoners to the Tower of London. The 16. of August next following, the said Duke and Nobles were publicly arraigned of High Treason, in Westminster hall before Thomas Duke of Norfolk High Steward of England : being brought to the bar, the D. used great reverence to his Judges, professing his faith and allegiance to the Queens Majesty, whom he confessed he had grievously offe • ded, saying that he meant not to speak anything in defense of his face, but would first understand the opinion of the Court in 2. points.
1. Whether a man doing any Act or thing by authority of the Princes Council, and by Warrant of the Great Seal of England, and nothing doing without the same, may be charged with TREASON for doing anything by such Warrant ? Which question was grounded on this very Statute of 11 H. 7. c. 1.
2. Whether any such persons as were equally culpable in that crime, and those by whose Letters and Commandment he was directed in all his doings, might be his Judges, or pass upon his Trial, as his PEERS?
To the 1. was answered (mark it) That the Great Seal he had for his W • rrant, was not the Seal of the Lawfull Qu. of the Realm, nor p • ssed by her Authority, but the Seal of an Usurper, and therefore could be no Warrant to him.
To the 2. That if any were as deeply to be touched in that Case as himself; yet so long as no attainder was of Record against them, they were nevertheless persons able in Law to pass upon any trial, and not to be challenged therefore, but at the Princes pleasure. After which the Duke and the rest of the Lord's using but few words, declaring their earnest repentance, and imploring the Queens mercy, confessed this Indictment of Treason, and thereupon had Judgment passed upon them as Traitors; And the Duke (with Sir John Gates and Sir Thomas Palmer ) were accordingly executed on Tower Hill, August 22. confessing the Justice both of their Judgment and Execution, as TRAYTORS, and not justifying themselves by the Act of 11 H. 7.
After this Archbishop Cranmer though at first, he refused to subscribe K. Eds. will to dis-inherit Queen Mary, alleging many reasons against it, yet was committed Prisoner to the Tower, indicted, arraigned, condemned of High Treason in November following for aiding the Earl of Northumb. with Horse and Men against Queen Mary : And Queen Jane herself, though Queen de facto, & merely passive, not active in this case, never aspiring after the Crown (being proclaimed Queen against her will) with the Lord Guyldsord her husband, were both indicted, arraigned, condemned of High Treason, and accordingly executed as Traitors, Feb. 12. 1 Mariae, the one for usurpation of the royal Estate AS QUEEN OF ENGLAND; the other as principal adherent to her in that case ; both of them confessing, that BY THE LAW THEY WERE JUSTLY CONDEMNED. After which the Duke of Suffolk her father, and sundry others were condemned of High Treason, executed upon the same account; and that by the judgment of all the several Peers, Nobles, Judges, Lawyers, and Great Officers of Engl. though guilty of the same crime seconded with the Judgment of the whole Parl. of 1 Mar. c. 16. which confirmed their Attainders as JUST and LEGAL, notwithstanding the Statute of 11 H. 7. c. 1. which extends only to indemnifie those Subjects who do their true duty and service of allegiance, to their King and Sovereign Lord ; which none certainly do who adhere and join with an apparent Usurper in possession against their lawful undoubted King and Sovereign Lord, as they here adjudged, and the Parliaments of 1, 4 and 14 of King Edward the 4th. long before: no Acts of Parliament whatsoever being able to secure Usurpers Titles, though Kings de facto, to themselves or their posterity, or to save their own or their adherents Heads from the block, or their estates from confiscation, as the recited tragical Presidents and Judgments prove, against the absurd opinions of many Grandees of the Law in great reputation ; who take all Sir Edward Cooks and others Dotages for Oracles, and well deserve a part in Ignoramus, for being ignorant of these late notorious Judgments and authorities against their erroneous opinions, wherewith they seduce their silly Clients and young Students of the Law to their great peril, for whose better information, I have the larger insisted on this point, to rectify this dangerous capital mistake, which may hazard both their lives, estates, and souls to boot. And so much in answer to the objected Presidents of Edward and Richard the 2d. to prove the Commons Right of Judicature in Parliaments, &c. As good an evidence as that grave Sir E. Cook produceth, to prove this House of Commons (who had no Journal Book till • Ed. 6.) to be a distinct Court of Judicature, because upon signification of the Kings pleasure to the Speaker, they do and may prorogue or adjourn themselves, and are not prorogued, adjourned by the House of Lord's. By which reason he might prove every Committee of the Lord's or Commons House to be a distinct Court, because they may adjourn and prorogue themselves without the House, and all Commissioners for examination of Witnesses, Charitable uses, the petty Sessions of Justices of Peace, all Country Committees, Archdeacons and other visitors, all Auditors of Accounts, Arbitrators, Referrees, &c. to be Courts, because they may all adjourn themselves from one day and place to another; when as their presenting of their own Speakers in, and the Kings calling them into the Lord's House at the beginning and end of every Parliament, or Session, and at the passing of Bills, and their dissolution in the Lord's House, is a stronger argument to prove them no Court at all, at least of Judicature, than their adjournment or prorogation of themselves, to evidence them to be a distinct Court from the House of Lord's.
Should I here subjoin to the premises all the cases extant in the Lord's Iournals and Parliament Records, evidencing the Lord's real Jurisdiction, proceedings and Judicature in civil causes, in the reigns of King Ed. the 4. Richard the 3. Henry the 7. and 8. Queen Mary, Queen Elizabeth, King James and King Charles, I should be over tedious to the Readers, I shall therefore only trouble you with 2 cases more.
In the Parliament of 18 Elizabeth, there arose a question about place and precedency in the case of the Lord de la Ware : upon debate thereof in the Lord's House, ALL THE LORD'S except the Lord Windesore ADIUDGED, that he should have place next after the Lord Will • oughbie of Erisbe. And the Lord Keeper was appointed to acquaint the Queens Majesty with this determination of the Peers, and to know her pleasure concerning the same.
In the last long Parliament Pasch. 20 Caroli, this call of Note and Consequence, was adjudged by the Lord's (against the late resolutions of some Judges, touching the Jurisdiction of the Admiralty Court ) between Fairfax and le Gay, and Mr. Johns a London Merchant. In Lent Vacation 1638. Mr. John's libelled in the Admiralty against one Hooper for 26000 weight of Barbadoes Tobacco, sold to him, at St. Maloes in France, in partibus transmarinis infra jurisdictionem Admiraltatis Angliae, by one B • les factor to Hooper for freight due unto him by Hooper for his Ship called the William and Anne, whereof John's was owner, without alleging, that this sale and contract was made super altum mare: Fairfax and le Gay became sureties for Hooper in the Admiralty; John's had a sentence against Hooper in the Admiralty upon this Libel, who soon after became a Bankrupt. Whereupon Fairfax and le Gay his sureties, appealed to the Delegates to avoid the sentence and execution against them, and then moved in the Kings Bench for a Prohibition to stay the suit; suggesting the contract to be made at St. Maloes upon the land, and not super altum Mare ; and so not within the Jurisdiction of the Admiralty; Upon which they procured a rule to stay the Proceeding; Whereupon Johns petitioned the House of Lord's for relief against this rule, and that the Delegates might proceed to give sentence upon the Appeal, that so he might have execution against the sureties; Hooper being a Bankrupt for above one hundred thousand pounds, and all his estate sold, so as his debt would be wholly lost if he should be deprived of the benefit of his sentence, to which the sureties were liable. Upon his Petition this point in Law amongst others whereon the hinge of his case turned, was argued at the Lord's Bar by Mr. Serjeant Rolls, & Mr. Maynard for Fairfax and le Gay, and by myself for Johns. Whether the Admirals Court had any true, ancient, legal Jurisdiction of Contracts made at St. Maloes, and other parts beyond the Seas, between Merchants and Mariners touching their Merchandise and marine affairs upon the Land, as well as on the Sea ? The Sureties Counsel argued confidently they had not, upon the Statutes of 13 R. 2. c. 5.15 R. 2. c. 3. 2 H. 4. c. 14. and the Presidents cited in Sir Ed. Cooks 4 Instit. p. 124. and c. 22. of the Court of Admiralty, and in Hubberts Reports • .331. But I argued to the contrary, and clearly proved by the Laws of Oleron, Lex 1, 2, 6, 8, 9, 10, 15, 16, 22, 23. made in the reign of King Richard the 1. Anno 1190. ratified under the Seal of that Island by that King, confirmed and used by Henry 3. Edw. 1. and practiced ever since as the Law of the land in the Court of Admiralty, as Sir Edward Cook himself asserts) and by the notable Record of 22 E. 1. in Cooks 4 Institutes p. 142, 143, 144. and Seldens Mare Clausum, l. 2. c. 28▪ f. 275. the Black Book of the Admiralty, & the Parliament Roll of 4 H. 4. n. 47. for confirmation of the Laws of Oleron: 1. That the Admiralty in all ages since King Rich. the 1. • ill the making of these Statutes, and ever since (till Hill. 2 Jacobi C. B. between Tomlinson Plaintiff, and Philip's Defendant) had held Jurisdiction of such contracts between Merchants and Mariners, made upon the land in foreign parts, as well as on the Sea: as the Marshal had always used to hold plea of Contracts, and deeds of Arms, Warr, Treasons, Murders and Felonies out of the Realm, which cannot be determined by the Common Law : And that without any Prohibi • ion granted to stay the proceedings in all that large tract of time, both before and since these Statutes.
2ly. That these Acts were made only to restrain the Admirals, Incroachments of Jurisdiction, in Contracts, Pleas, Quarels, & other things made or done by Landor Water, within the Body of the Counties of this Realm, or in any Port, Harbor, Haven, or Creek within the Counties, the Conusance whereof properly belonged to the Kings Courts, or to the Courts of Cities, Burroughs; and other Lord's, and to confine them only to such contracts and things within the Realm (whereof the Sea is a part, being under the Kings Dominion and Lordship) as are made or done upon the Sea, not upon the Land o • Water in any Haven, Port, River, Creek within the precinct of any County : but not to debar them in the least degree of their ancient, undoubted jurisdiction they always had and exercised de Jure, without complaint or restraint, in contracts of Merchants and Mariners made upon the Land in foreign parts beyond the Seas, of which the Kings Common Law Courts, and the Courts of other Cities, Burroughs, Ports, Lord's, never had nor could have the least Jurisdiction, since out of the Realm, and no Jury de Vicineto could be thence awarded or summoned to try the Contract in England : which I proved by the Parliament Rolls and Commons Petitions, whereon these Statutes were grounded, being most express in point, as 13 R. 2. Rot. Paerl. n. 41.14 R. 2. n. 37.15 R. 2. n. 30.2 H. 4. n. 89.4 H. 4. • . 47.11 H. 4. n. 61. compared with 27 E. 3. c. 13.2 R. 2. c. 4.32 H. 8. c. 14.5 Eliz. c. 5.27 Eliz. c. 27. which so interpret it, and by most of the Cases cited by Edward Cook in his Chapter of Admiralty, extending only to contracts made within the body of any County within the Realm, not in any foreign parts on the Land or Sea, without or beyond the Realm, whereof the Comon Law Courts had never Jurisdiction before Sir Sir Edw. Cook was Chief Justice, and that by a mere fiction, and false contradictory surmise, contrary to truth, reason, Justice, Law, and the Letter of Charterparts and Contracts themselves; viz. that they were made at St. Maloes, Burdeaux, Sevil, Dantzick or Hamborough, in France, Spain, Denmark, or Germany, within the Ward of Cheape London, a suggestion never made before his time, in or by any Law-Book or Record, only to rob the Admiralty of its ancient unquestionable right and Jurisdiction.
3ly, That the words of the Statute of 13 R. 2. c. 5. (whereon Sir Edward Cook and other Judges ground their Prohibitions to the Admiralty), That the Admirals and their deputies shall not meddle from henceforth, with anything done within the Realm of England, but only of things done upon the Sea, &c. are clearly strained and construed by them directly against the words, meaning and intent of the Law-makers, and Commons Petition whereon it was made: For the later clause; but ONLY of things done upon the Sea; is put in opposition and contradistinction to the precedent words, with anything done within the Realm of England; or within the bodies of the Counties as well by land as by water ; as the Stat. of 15 R. 2. c. 3. & 5 E • l. c. 5.27 Eliz. c. 11.25 E. 3. c. 2. directly interpret and explain the sense thereof: And they strain and apply them to contracts made by Merchants and Mariners, not within the Realm of England, or bodies of the Counties thereof by land or water, but beyond the seas, and quite out of the Realm, being no part of the Realm, or within the body of any County of England, or Kings Dominions; Than which a greater Solecism and contradiction cannot be imagined against the scope and letter of these Statutes. For by this construction, they may likewise strain the very Oath of Supremacy, That no foreign Prince, Person, Prelate, State or Potentate hath, or ought to have any Jurisdiction, power, &c. Ecclesiastical or Spiritual WITHIN THIS REALM: With the Statute of 13 Eliz. ch. 2. for the abolishing of the usurped Jurisdiction of the Bishop and See of Rome, WITHIN THIS REALM; and against raising s • dition, bringing in Bulls, Agnus, Dei, Crosses, Pictures, &c. WITHIN THIS REALM; and other the Dominions thereof : to the punishment of all such, as shall avetr, that any foreign Prince, Person, Prelate, State, Potentate, or the Pope, have or ought to have any Jurisdiction, power or Authority OUT OF THIS REALM, or the Dominions thereof; or shall raise any sedition, or vent Popes Bulls, &c. in any foreign Kingdom or Country (as France, Spain, Italy, Poland, Germany ) out of the Realm, as if they had done it within this Realm of England.
4ly, That by the opinion, resolution, agreement of the Judges of the Kings Bench, 1575. and of all the Judges of England (whereof Hutton and Crook were 2.) 4 Febr. 1632. Hi • . 8. Caroli, (the original whereof I produced subscribed with all their hands) If suit he commenced in the Court of Admiralty upon Contracts made, and other things personal done beyond the Seas, or upon the Sea; no Prohibition is to be awarded: (contrary to Sir Edward Cooks opinion) This being the Judgment of all our Judges in former ages, wherein no record or president could be produced of any such Prohibition from Richard the 1. till the later end of Queen Elizabeth's or King James his reign.
The Lord's upon my Argument were so fully satisfied in this point of Law, that they all unanimously and immediately adjudged, and ordered (notwithstanding Justice Bacons and Reeves opinions upon the late presidents to the contrary) that the Rule for the Prohibition in the Kings Bench should be vacated ; and that the Delegates should proceed to Sentence in the cause ; which they did: And so my Client got both Judgment and Execution soon after against these Sureties.
I might here very fitly inform our Levellers and their Confederates, That the Lord's in Parliament (as they did anciently, so since the Commons admission unto this Great Council, have) made not only some Acts for the Government of London without the Commons, as in 17 R. 2. n. 25, 26, 27. Granted Ayds for themselves to the King, and likewise for the Merchants by the Merchants consents; confirmed Charters, Patents in Parliament; reversed attainders, restored persons attainted and their heirs to Lands and blood, elected the Kings Great Officers, Privy Counsellers; and prescribed them Laws, Rules, Orders: appointed a Protector during the Kings Minority, limited his power, and discharged him from his place without the Commons: confirmed an imposition upon Cloth by the King, against the Commons petition to take it off; Ordered a Subsidy to be paid absolutely, which the Commons granted but conditionally; called receivers of Subsidies and Monies to account, without the Commons, and opposed the Commons encroachments upon their privileges ▪ as you may see in the Parliament Rolls of 13 E. 3. n. 5, 6. Parl. 1. & Parl. 2. n. 8.15 E. 3. n. 41.21 E. 3. n. 16. Par. 2 R. 2. n. 22. to 27.57. 5 R. 2. n. 16. 5 H. 4. n. 51. to 58. 4 H. 6. n. 22. 6 H. 6. n. 22, 23. 8 H. 6. n. 13.27, 28.14 H. 6. n. 10. 31 H. 6. n. 34. In Claus. 50 E. 3. m. 3. & 4. De essendo in Parliamento ; there are writs directed to particular persons in this form. Sis coram Nobis, et cateris Proceribus et Magnatibus regni nostri Angliae in praesenti Parliamento (without mentioning the Commons) apud Westm. convocato, hac instant di • Sabbat • , proxime post futur: ad informandum Nosipsos, Proceres et Magnates (not the Commons) super quibusdam de quibus per te volumus informari, &c. 4. Junii. Per Concilium in Parliamento. And for the Nobles of Ireland, I find this Record. Claus. 2 E. 3. m. 17. Rex dilecto et fideli suo Johanni Darcy de Nevien, Justiciario suo Hyberniae salutem. Ex parte quorundam hominum de Hybernia Nobis exstitit supplicatum, u • per statutum inde faciendum concedere volumus, Quod omnes Hybernici qui voluerint, legibus utantur Anglicanis, ita quod necesse non habeant super hoc Cartas aliquas a Nobis imperrare. Nos igitur certiorari volentes si sine aliquo praejudicio, praemissis annuere valeamus, vobis mandamus, quod voluntatem Magnatum terrae illius, (not of the Commons) in proximo Parliamento nostro ibidem tenendo super hoc cum diligentia praesentari facias, & de eo quod inde inveneritis, una cum vestro consilio & advisamento Nos distinct & aperte cum celeritate, qua potestis, certificetis, hoc Breve nostrū Nobis remittentes, &c. upon which Petition the use of the English Laws was afterwards granted, as appears by Clause 5 E. 3. part 1. m. 25. But I shall close up this Plea and Supplement with a few Presidents more, pertinent to demonstrate the Lord's undoubted Right of Judicature, Council and Advice in public affairs, both in and out of Parliament.
In the Parliaments of 5 E. 2. n. 31.4 E. 3. c. 14.36 E. 3. c. 10.50 E. 3. n. 181.1 R. 2. n. 35.2 R. 2. n. 5. It was enacted,
Edwardus Dei gratia, &c. authorizing the Bishop of Chichester, the Earls of Huntingdon and Devonshire, and Tho. Wake of Lidell, and Thomas de Berkley Barons, assigned to hear querelas omnium qui se de gravaminibus & dilationibus sibi factis coram Iustic. et aliis conqueri voluerint, per avisamentum Cancell. Thes. Iustic. de atroque Banco, & aliis d • Consilio Regis, according to the Ordinance made in Parliament 14 Ed. 3. c. 5. that Unus Praelatus, Duo Comites, et Duo Barones should have Commission and power to hear and determine such complaints, Test. Rege apud Westm. nono die Iunii.
There is this Petition of the Commons to the King, for declaring Treasons, in 25 E. 3. Rot. Parl. n. 17. Item come les Justices nostre Seignior le Roy, assignez en divers • es Countees ajuggent les gentz que sont empeschez devant eux come Traiteurs, pur diverses Causes desconues a la Comune estre Treason, que please a nostre Seignior le Roy per son Counse • l, e • per les Grantz, et s • ges de la terre, declarer les pointz de Treason en cest present Parliament.
Quant a • la Petition touchant Treason, nostre Seignior le Roy ad Fait declarer les Articles de Y celle en mane • que ensuit as in the Statute of 25 E. 3. c. • . By which Petition, Act, and the like Petition in 21 E. 3. n. 15. it is apparent▪ That the Right of declaring, Judging what is High Treason in Parliament, belongs originally to the King himself, by the advise of his Council, Great men, and Sages of the Land and not unto the Commons House, at whose request the KING then made a Declaration of the Articles of Treason, as in this Statute, by his Nobles, Councils and Judges advice : Therefore the Declaration of all other Treasons in particular cases not within this Statute, belongs wholly to the King Lord's Council and Judges in the Lord's House, not to the Commons alone, or jointly with them within the later branch of this Act (as well as the Treasons within the body thereof: viz. Because that many other like cases of Treason may happen in time to come which a man cannot imagine nor declare at this present time; it is accorded, that if any other case, supposed Treason, which is not before specified shall happen de novel before any Justice, the Justice shall demur • without going to Judgment of the Treason, tanque per devant le ROY EN SON PARLEMENT, soit le case monstre et declare, de que leceo doit estre a jugge Treason, ou autre Felony. Against the Opinion of Sir Edward Cooks 3 Institutes, p. 22. The Commons having no power at all to declare and judge what shall be Treason in such new particular cases, but only when a New Treason is made or declared for the future by Bill, or Act of Parliament, wherein their concurrence is necessary (as in all new Acts concerning Treasons since 25 E. 3.) as is evident by Mr. Sr. John's Argument at Law this very last Parliament, at the Attainder of Thomas Earl of Strafford, and Mr. Samuel Browns Argument at the Lord's House Bar, to prove and satisfy the Lord's House, that he, and Archbishop Laud were guilty of High Treason upon the Articles of their several Impeachments exhibited and proved against them, of which the Lord's and King alone were the proper Judges, but the Commons, only their Impeachers and Prosecutors in the Judicial way of Parliamentary Proceedings, as I have formerly evidenced. Therefore all the late Votes, knacks, Declarations of the Commons House alone before, or without the Kings & House of Lord's Declarations, Resolutions, of sundry things to be high Treason, and divers persons to be Traitors, upon bare informations, suggestions, (though not within the Letter of 25 E. 3. c. 2.) are but mere illegal innovations, extravagancies, yea Nullities in Law, fit to be eternally exploded, especially by Lawyers, the chiefest Innovators, Promoters of them, rather out of ignorance or rashness, than Prudence, Law, or solid Judgment, for which they can produce no presidents in former ages.
In the year 1392. the 15 of King Rich. the 2. we have this memorable President of the Lord's Judicature together with the King, assembled in a Great Council, without the Commons, in the case of the Mayor, Sherifs, Citizens and City of London thus related by Walsingham at large.
Misit Rex ad Cives Londoniarum petens ab eis mutuo mille libras: cui procaciter et ultra quam decuit restiterunt. Sed & quendam Lumbardom volentem accommodare regi dictam summam, male tractave • unt, ve • beraverunt, er paulominus occiderunt. Quae cum Rex • udisset, i • a • us est valde, et convocaas omnes regnipene Major • s, apperuit proterviam civium Londoniarum, et de praesumptione conqueritur eorundem. Qui omnes infesti Civibus propter diversas causas, consulunt, ut reprimatur citius eorum insolentia, et superbia destruatur. Eranc quippe tunc inter omnes fere nations gentium clarissimi, arrogantissimi, et avarissimi, ac male creduli in deum & traditions avitas, Lolardorum sustentatores, religiosorum detractores; decimarum detentores, et communis vulgi depauperatores. In tantumque excrevit eorum supercilium, ut auderene leges condere, quibus adventantes de circumjacentibus villis, vel Provinciis, contra rationem omnem humanam, Deum, et justiciam, molestarent, gravarent et fatigarent. Praetereo eorum inhumanitatem, sileo rapacitatem, reticio infidelitatem, transeo malignitatem, quam indisciplinate in adventantes populos exe • ouerunt. Qui si • cuncta describere quae perpetraverunt hoc tempore, volumen credo maximum conficeret. Objecta sunt eis igitur quae contra regem fecerant, et suae majestatis notoriam laesionem ; objecta sunt quae in provinciales commiserant, ad regis ac dominorum regnique populi detrimentum : quae si vellent inficiari praesto erant accusators e patria, qui sacramento suo eorum probare cuperent acta prava. Londonienses ergo in medio miseriarum subito constitui, et velut versati inter cudem et malleum, cum non esset locus excusationis, decreverunt se potius submittere regis gratiae, quam succumbere veridicto vel judicio duodenae. Regis ergo Iudicio arrestatus est Major Londoniarum, et vicecomites, cum quibusdam de Majoribus, caeteris domum redire permissis. Major autem missus est ad Castellum de Windeshores, caeteri ad diversa castella destinati sunt, sub arcta custodia conservandi, donec Rex cum Confilio deliberasset quid faceret de eisdem. Ibidem decretum est, ne de caetero Londonienses Maiorem eligerent vel haberent, sed rex de suis militibus provideret aliquem qui, rector foret, et custos civitatis vocaretur, et esset (quem alio nomine vocamus vulgariter Gardianum) ibi subsequenter, et eorum sunt privilegia revocata, libertates, annullatae, et leges quas vel condiderant, vel a diebus habuerant abrogatae. Tunc primo Rex constituit custodem civitatis, abrogato Maioris vocabulo, quendam militem dictum Edwardum de Dalyngrygge, qui et • ive • regeret, & justitiae cunctorum aeque pro • piceret: sed is cito fuit per regem depositus, quia convictus est civibus fecisse juramentum, vel de eorum consuetudinibus defendendis, vel certe pro posse suo, subtiliter revocandis. Fuerunt qui dicerent eum ex indus • ria hoc fecisse, plusque regis commodo quam civium in hac parte prospexi • se, Quod cum regi fuisset cognitum, poenituit eum militem benevolum sic tractasse. Nihilominus rex et alium militem loco suo constituit nomine Baldewynum de Radyngton, virum certe providum et discretum, qui sciret delinire moerorem civium, et eorum mentes erigere ad s • em bonam. Nam cives prae tristitia contaburunt & dolore.
Interea multis mediantibus (sed praecipue duce Gloverniae ensistente ) rex factus animi aequioris paulatim discedit a sui rigor propositi, reducens ante mentis oculos honores varios, quos per Londinenses acceperat, et magnifica dona per eos praestita: unde decernit mitius cum eis agere, et eos ad spem aliqualis gratiae revocare. Mittit nempe mandans Londinensibus, ut ad castellum de Wyndesore conveniant, demonstraturi privilegia, libertates ac jura civitatis nova et vetera coram eo, consilio quoque suo, ut ibi decerneret quae servanda forent in civitate, vel quae penitus obolenda. Quibus • ostensis, quaedam ratificata, quaedam permi • a, quaedam damnata f • ere, Maioris tamen nec personam, nec dignitatem ea vice recuperavere, neque plenam regis gratiam, donec satisfecissent regi de damnis et injuriis quae vel sibi, vel regis plebi antea intulissent. Equidem ea vice convenit inter regem, et Dominos ne eorum satisfactionem acceptaret, nec cum eis quovismodo componeret sine consilio Dominorū. Nempe rex cum primo contra eos incanduisset (propter causas qua • s • pra notavimus.) meditatus est exercitum congregasse, & in civitatem i • ruisse cum impetu, et cives de sub coelo delevi • e. Quod tamen, Ducis Lancast • ae oratione mutatum est; qui censuit eos (ut praemitti • u • ) evocandos, et (ut praefettur) castigandos, vel (si obstinati fuissent) tunc juxta regis propositum obsidendos, ende • erraviventium disperdendos. Rex autem in hac collectione apud Wyndesore, Dominos temporales regni cunctos, et Episcopos pene omnes, necnon exercitum talem contraxerat, qui merito terrori Londin. posset esse. In quos omnes incredibiles fecit expensas, pro quibus certum erat Londonienses solu • uros. Ipsi vero non ignorantes quod horum finis esset expositio argenti et auri, submiserunt se et sua regi, voluntary ei decem millia librarum vadiantes, dimissi tamen sunt domum rediere, incerti quid solueren • , donec regis consilium et formam satisfaciendi, & summam solvendi definisset. Cumque et cives regressi fuissent & Proceres qui cum rege fuerant, ac reliquus 〈◊〉 pulus ad propria remeassen • . Rex audiens Londinenses in tristitia constitutos, et mente lapsos, ait suis: Vadam Inquit Londonias, et consolabor cives, nec patiar eos ultra de mea gratia desperare. Quae sententia mox ut cognita fuit in civitate, incredibili jocunditate replevit omnes, unde omnes et singuli ei generaliter statuerunt occurrere, et non minores expensas facere in xeniis, & donativis quam fecerant in ejus coronatione. Rex igitur ut venit Londonias, tanta gloria, tanta pompa, tanta varietate diversorum apparatuum est susceptus, quanta suscipi regem aliquem triumphantem decuis • er. Nam equos et phaleros, tabulas aureas et argen • ease, pannos aureos et holosericos, pelues et lavatoria de fulvo metallo, aurum in pecunia, gemmas et monilia, tam ditia, tam nobilia, tam speciosa donaverunt eidem, ut cunctorum valor et pretium non posset facile estimari. Sicque recuperaverunt cives consuetudines et libertates antiquas quae saltem civitati possent esse fulcimento, nec extraneis detrimento. Indu • tum{que} fuit eisdem, ut Majorem possent eligere sicut prius. Credebant autem Londonienses quod per haec dona domigerium evasissent, et in posterum quieti fuissent: sed fefellit eos eorum opinio, qui coacti sunt expost solvere regi decem millia librarum, de communitate collecta, in amaritudine mentis magna: Proceres vero regni qui regis consilio interfuerant, audientes quod Rex contra pactum indulsisset Londoniensibus, offensi sunt valde inter se, regis levitatom et inconstantiam condemnantes. Nemo tamen palam regem redarguit de praemissis.
In the Parliament of 11 H. 4. rot. parl. num. 14. The Commons exhibited this Petition to the King; by which it appears, that as in the Parliaments of 1, 2. & 4 E. 3. n. 1.10 R. 2.17 R. 2. n. 6.7 & 8 H. 4. n. 66, 67. some of the valiantest, wisest, discreetest Spiritual and Temporal LORD'S, were by Petition of the Commons, and special Order of the Lord's in Parl. placed about these Kings, to BE THEIR PRIVY COUNSELLORS, to advise, counsel them, and manage all the Great affairs of the Realm under them; so in this Parliament they exhibited this Petition to the like e •• ect.
Primerement, que plese a nostre dit Seigniour le Roy ordeigner et assigner en cest present Parlement, les pluis vaillantz sages et discretes Seigniours espirituelx et temporelx de son roialme, pur estre de son counseil, en eid et supportation del bone et substancial gouvernance, et la bien de Roy et de Roialme; et que les ditz Seigniours de counseill et les Justices de Roi soient overtement (jurez) eny cest present parlement, de eux bien et loialment en lour counseill et faitz acquiter pur le bien de Roy et de Royalm, en toutz pointz, saunz favor pur affection, ou affinite fair a ascune manere de person. Et que plese nostre dit Seigniour le Roy en presence de toutz les Estates de parlement, comander les ditz Seigniours, et Justices sur lour foy et ligeance, que lui devont, qils feront pleyne justice et droit ouelment a chescuny sanz tarians, si bonement come ils purront, sanz ascun commandment on charge de queconque person a contrary.
Le Roy le voet, was the answer which was answered. See the like Petitions afterwards in 1 H. 6. n. 26.2 H. 6. n. 15, 16.8 H. 6. n. 27, 28.11 H. 6. n. 41.
I shall conclude with these 2. memorable late presidents: In the Parliament of 8 Eliz. upon the death of Thomas Williams Esquire, Speaker of the Commons house, Richard Onstoe Esquire, the Qu • ens Solicitor, first chosen a Member of the Commons house, and after called by Writ to attend the Lord • House as an Assistant; at the request of the Commons to the Queen and Lord's, was sent down again to the Commons house, without any new election, and there chosen and presented by them for their Speaker ; and allowed of by the Queen and Lord's. So in the Parli • meant of 23 Eliz. upon the Queens making John Bell Esq; then Speaker, chief Baron of the Exchequer, John Popham Esq; then Queens Solicitor, called from the Commons house to the Lord's as an Assistant by writ; at the Commons request to the Queen and Lord's, was remitted to them again, upon his old, without any new election, and th • chosen, presented, accepted for their Speaker. Which 2. late presidents infallibly prove, 1. That the King hath an absolute power over any Members of the Commons house upon a just occasion, to call them thence by writ to be Assistants to the Lord's house ; or else to create them Peers and call them to be Members of the Lord's house, as he did Sir Francis Seymore, Mr. Arthur Capell, and others, created Lord's the last long Parliament: 2ly, That the calling of any to the Lord's house from the Commons by writ, as Assistants only, doth not totally disable them to be Members of the Commons house again, the self-same or the next Parliament, but that upon the Commons Petion, and assent of the King and Lord's, they may be remanded to the Commons house, and be Members and Speakers thereof again; but not by the Commons votes or order, but only by the Kings, with the Lord's assent, who may refuse to remand them if they please. A very pregnant argument, chat the power of removing, judging, suspending, approving, readmitting Members of the Commons house, upon Elections or Misdemeanors, belongs not of right to the Commons house, but to the King and House of Peers, as I have formerly evidenced. Admit • ing then that the Commons have de facto gained, exercised this privilege of late years to judge, suspend or eject their own Members in such cases without the King and House of Peers, yet having most grossly abused it of late, to the ruin, subversion of Parliaments, I must conclude with the Canonists; Privilegium meretur amittere qui abutitur potestate.
Jer. 6.16. Thus saith the Lord, Stand ye in the ways and see, and ask for the old paths, where is the good way, and walk therein, and ye shall find rest for your souls; But they said, We will not walk therein.
Prov. 24.21, 22. My son, fear thou the Lord and the King, and meddle not with those who are given to change: For their Calamity shall rise suddenly; and who knoweth the ruin of them both?
Jer. 21.3, 4. c. 17.25, 27. Thus saith the Lord, Execute ye judgment, and deliver the spoiled out of the hands of the Oppressor, and do no wrong: do no violence to the stranger, the fatherless nor the widow; neither shed innocent blood in this place. For if ye do this thing indeed, then shall there enter into the Gates of this House, KINGS & PRINCES sitting upon the Throne of David, riding in chariots and on horses, they and their PRINCES, the men of Judah, and the inhabitants of Jerusalem, and this City shall remain forever. But if you will not hearken unto me, &c. then will I kindle a fire in the gates thereof, and it shall devour the PALACES of Jerusalem, and it shall not be quenched.
An Omission in pag. 30: l. 7.
RAnulph de Glanvil Chief Justice under King Henry the 2. In his Tractatus de Legibus et Consuetudinibus Regni Angliae, written in the 33 year of his reign hath this memorable passage relating to the Parliamentary Councils in that age, l. 2. c. 7. Est autem magna Assisa, REGALE QUODDAM BENEFICIUM, CLEMENTIA PRINCIPIS DE CONSILIO PROCERUM POPULIS INDULTUM (to wit in a Parliamentary Council of the King and Lord's without any Commons)
Errataes and Omissions.
KInd Reader correct these Errors at the Press; p. 14. l. 10. powers, r. Thrones, p. 18. l. 26. r. & Burgesses, p. 24. l. 22. in, the, p. 25. l. 24. Charters ; p. 26. l. 15. fore ; p. 31. l. 33. statu ; p. 33. l. 14. reddituum ; p. 39. l. 12. imminentibus ; p. 40. l. 7. & haberet, r. habere et ; p. 50. l. 23. aliquod, p. 53. l. 28. his ; p. 60. l. 27. Dei ; p. 67. l. 19. levy, keep ; p. 72. l. 36. vindemiantes ; p. 80. l. 7. Gentlemen, Greatmen; l. 19. tyrannicum; l. 37. Abbates ; p. 81. l. 27. convenirent ; p. 90. l. 20. excom : p. 100. l. 35. addictis, adjectis ; p. 103. l. 10. nostri; l. 17. E. 1. p. 110. l. 26. petiit ; p. 11 4. l. 10.15. decedentibus ; p. 126. l. 25 fulminatam ; p. 151. l. 12. Peer, Prior ; p: 152. l. 24. had, held; l. 32. Peers, Priors ; p. 155. l. 33. irrotulati ; p. 160. l. 30. sole, old ; p. 167. l. 32. crederet ; p. 170. l. 5. consecrate; l. 14. decerneretur ; p. 173. l. 3. & 36. adunatis ; p. 179. l. 36. tractaturi ; p. 180. l. 9. Normannia ; p. 182. l. 1. then, other; l. 1, 2. Tha • they, r. that all Parliaments ; p. 188. l. 27. name, r. nature ; p. 196. l. 19. p. 196. l. 19. Seigniors; l. 27. that, their, l. 31. juggements ; p. 192. l. 16 m. 7. p. 196. l. 30. imngining ; p. 198. l. 7. Cromwell ; p. 200. l. 12. dele given ; p. 207. l. 16. et, est; p. 213. l. 27. r. Rex, Anno 1096. p. 216. l. 32. vadia ; p. 223. l. 5. bull ; p. 225. l. 11. propriae; l. 38. invenerunt ; p. 238. l. 18. et, p. 246. l. 22. hinc, huic ; p. 255. l. 5. Valencia; l. 9. constantissima ; p. 261. l. 36. King and Lord's ; p. 262. l. 22. r. the 24; p. 265. l. 32. audito ; p. 272. l. 27. eflues ; p. 275. l. 7. as, of; p. 280. l. 3. grantier p. 286. l. 26. Comitem ; p. 287. l. 37. erat ; p. 292: l. 3. presenting, r. prescribed ; p. 296. l. 16. Lord's ; p. 297. l. 34. yet, the ; p. 298. l. 6. qua, Quia ; p. 299. l. 23. judicature; l. 27. r. E. 3. p. ••• , l. 22. of •••• e, I have ; p. 304. l. 20. of, in ; p. 310. l. 37. Servants, Sergeants; lin. 38. this, their ; p. 311. l. 4.14 H. p. 314. l. 1. short, strict ; p. 315. l. 3. Lord's, Lands ; p. 319. l. 31. haberet ; p. 318. l. 2. dele as ; p. 328. l. 1. nichil ei ; p. 340. l. 1. dele of ; p. 242. l. 29. dele and ; p. 344. l. 16. pl. &. r. plac. p. 345. l. 38. rendus ; p. 348. l. 19. pur ; p. 355. l. 4. he, the; l. 23. them him ; p. 359. l. 31. r. as he affirms ; p. 368. l. 1. dele 6. p. 371. l. 7. sways, sweeps ; p. 378. l. 34. Courts of the King ; p. 380. l. 7. Apprenticius ; p. 390. l. 9. Doreward; l. 16. Beerly ; p. 393. l. 37. r. excuse; by reason of his age and impotency by his service in the war, which he alleged ; p. 396. l. 36. dele and ; p. 406. l. 16. dele fore ; p. 411. l. 34. question; p. 415. l. 2 • . dele and; l. 34. These are ; p. 417. l. 18. when ; p. 419. l. 9. Bereford; l. 15. Objection; l. 18. may, way ; p. 429. l. 13.10. r. 19. p. 432. l. 4. eis.
In the Margin, p. 16. l. 5. r. Hist. l. 1. p. 29. l. 1. Chron. p. 31. l. 16. Ecclesiae ; p. 93. l. 3. Paris, r. Westm. p. 153. l. 2. H. 8. r. 6. p. 264. l. 2. m. 15. p. 393. l. 3.5 H. 4. c. 5.5 H. 4. rot. Parl. n. 71, 78. are omitted.
In the Supplement (being under-cast, beginning p. 401.) and the pages from p. 408. to 428. being misfigured, pray correct the pages first, then the Errataes in it thus; p. 403. l. 2. these, r. those ; p. 407. l. 29. ancillamque ; p. 413. l. 2. dele in; p. 414. l. 27, pertinentiis ; p. 415. l. 6. the, these; l. 7. Hab. 1.7. p. 417. l. 27. Sheriff; p. 419. l. 26. Parliaments; l. 31. part ; p. 424. l. 38, 39. r. King being Prisoner in Kenelworth Castle, the Queen and Prince came, &c. p. 436. l. 1. Statutum ; p. 446. l. 18. Archiepiscopatum ; p. 447. l. 5. ferendam; l. 6. deponendum ; p. 445. l. 6. pius, r. puis ; p. 461. l. 17, supra; l. 33. Members ; P. 480. l. 21. to it ; l. 24. Duke, Earl ; p. 483. l. 11. regem.