Twelve Arduous Doubts

Twelve arduous Doubts of great Concernment to the whole Kingdom, requiring a full and speedy Resolution: Propounded to M. Speaker and the House of Commons.

1 BY what Law or Authority can the House of Commons alone, without the concurrent assent and Judgment of the King and Lord's (the only proper Judges in Parliament) eject or suspend the late impeached Members, or any other, having no power of Judicature in themselves alone, nor authority to exanime Witnesses upon Oath, as all other Courts of Judicature have, and being all equally impowered, and entrusted by the Countries, Cities and Burroughs for which they serve, and summoned to the Parliament by Writ, only to advise and consult together with the King and Lord's, about the arduous and urgent affairs of the Realm and Church of England, not to suspend, nor expel one another the House? And being all but equals, whether one Justice of Peace, of Assize, Judge of the Kings Bench or Common Pleas, Commissioner of Oyer and Terminer, Sewers, Committee-man, Grand-Jury man, and the like, may not as lawfully displace & thrust out another by their own Authority, without the Kings, Parliaments, or Lord Keepers consents and advice, as one Commoner suspend or put another out of the Commons House, without the Kings and Lord's assents, since Par in parem non habet imperium; and no Freeman by Magna Charta ought to be outed of his Liberties or free Customs, but by the lawful Judgment of his Peers (in a legal way) or by the Law of the Land; and that in some Court of Record and Judicature, which the House of Commons alone is not; no Writs of Error nor other Records being returned before them? and they being the grand Inquisitors only of the Realm to inquire and impeach offenders, not Judges to censure or condemn them, whose impeachments they are only to transmit to the King and Lord's to judge and determine.

2. Whether this ejection and suspension of Members by their Fellow-Members, without confession, or legal conviction upon Oath, be not a late dangerous innovation, and tyrannical usurpation upon the Subjects and people's Liberties, depriveing them of the benefit and freedom of enjoying the counsel and advice of those Knights, Citizens and Burgesses they have elected to Vote, assent and dissent for them in Parliament? And whether the House of Commons be able to produce any one ancient President before Queen Mary's Reign, in all the Parliaments before or since the Conquest, to warrant their own sole suspentions or expulsions of their own Members? If yea, let them then produce them to satisfy the Kingdom, which expects an accompt of the justice of these proceedings at their hands: If nay, (as confidently they cannot) then these their expulsions and suspensions must of necessity be unwarrantable and merely void in Law, and the ejected and suspended Members may and ought to be re-admitted, till they can produce sufficient evidence and proof of their sole Authority to suspend or expel them without the Kings or Lord's concurrence upon full hearing and conviction of some horrid crimes, which really disable them to be Members.

Every County, City and Burrough ought ex debito Iustitiae, to send Knights, Citizens and Burgesses to consult, debate, vote, assent and dissent for them in Parliament, and every of these ought to come to the Parliament when elected, and to continue there all the Session without intermission, unless he can reasonably excuse himself by sickness or otherwise, neither ought he to depart the House, without special license of the House (and King too anciently) first obtained, under pain of being amerced and otherwise punished. And for this very reason every Member of Parliament during the Session of Parliament and so many days before and after, is privileged and exempted from all Arrests of his person, because he is bound personally and constantly to attend the House till the Session or Parliament ends, and his presence so necessary that he cannot be spared, nor absent upon any occasion: for proof whereof you may consult Modus Tenendi Parliamentum, Sir Edward Cook 4. Institutes chap. 1. and the Authorities and Records there cited; how then their Fellow-Commoners, Knights, Citizens and Burgesses can exercise or claim any legal Authority or Jurisdiction to eject or suspend any Member lawfully elected without legal trial, conviction and the concurrent judgment and consent of the whole Parliament, (whereof the House of Commons is but one branch or Member) and that upon such just and weighty reasons as may satisfy the Freeholders, Citizens, and Burgesses, who elected them, whose persons they represent, and whose Attourneyes and Proxies they are, and so ought not to be discharged of their trust without their privity by any of their Fellow-Commoners, of the justice of their expulsion or suspension, is a Moot-point which concerns the whole Kingdoms Interest, and fit to be resolved by M. Speaker and the Commons of the Long robe, in a substantial manner for the Kingdoms satisfaction: the rather because the Speaker of the Commons House cannot be removed or changed for sickness or other cause, but by the Kings and Lord's assents, Cook 4. Institut. pag. 8. & 39. H. 8. num. 38, 39. Baron Thorpes Case.

3. Seeing the Writ for

How can the Commons House alone, by any clause of the Writ that summons them, or any Law or Statute extant, suspend or expel any untainted Member, before legal trial and conviction in full Parliament, without the Kings and Lord's consents (with whom they are chosen, and trusted to advise) against the tenor of the Writ, and these Acts; and disable any from sitting or voting as Members, whom the Freeholders, Citizens and Burgesses by their free Elections, and the Laws and Statutes of the Realm have made as free and absolute Members in every particular as themselves who vote them out, and their only Trustees and Attorneyes; especially since the Commons whom they represent, and from whom they derive their power and authority (as the Writ recites) gave them no such Commission at all to eject or suspend their fellow-Members, of which the ejectment or suspension of their Fellow-Commoners certainly was none, neither in the Kings nor Peoples intention, when the Parliament was first summoned, and they made their elections of those they most confided in.

4. Whether the Statutes of 5. Eliz. c. 1. and 16. Caroli made this Parliament, for preventing the inconveniences happening by the long intermission of Parliaments, which enact; That every person which shall be elected a Knight, Citizen, or Burgess, or Baron for any Cinque Ports, or any Parliament hereafter to be holden, shall before he enter into the Parliament-House, or have any voice there, openly receive and pronounce the Oath of Supremacy before the Lord Steward for the time being, or his Deputies: And that he which shall enter into the Parliament-House without taking the said Oath, SHALL BE DEEMED NO KNIGHT, CITIZEN, BURGESSE, NOR BARON for that Pailiament, NOR SHALL HAVE ANY VOICE, but shall be to all intents, constructions and purposes, as if he had never been elected, nor returned Knight, Citizen, Burgess, or Baron for that Parliament, and shall Suffer such pains and penalties, as if he had presumed to sit in the same without Election, return or Authority, be not a direct resolution and judgment in print; that no Member of the House of Commons once lawfully elected and returned, can be disabled to sit and Vote in the House by his Fellow-Commoners alone, but only by Act of Parliament, or joint-judgment and concurrence of the King, Lord's and Commons at the least? And whether the taking away of the Archbishops, and Bishops Votes this Parliament by a special Act of Parliament, be not a full Declaration of the Law in this particular, that Members of Parliament (especially such as sit, Vote in others rights, and behalfes) ought not to be ejected or unmembred by the Commons, Lord's, or King alone, in a divided capacity, but only by Act of Parliament, or by the Kings, Lord's and Commons joint assents and judgments, because the whole House of Parliament is but one entire body and Court, which cannot be deprived of the presence or assistance of any one legal Member, but by common consent of the whole Body and Court, and not of one branch or Estate alone without the other, being contrary to all rules of reason and justice, and proceedings in other Courts, where one Judge or Justice, or Commissioner cannot be unjudged, unjusticed, uncommissioned by the others alone.

5. Whether the Commons late usurpations of such a power of suspending and ejecting their own Members (especially without any legal hearing, and examination, viva voice, of witnesses against them upon Oath, or admitting their just defense) be not a president of very dangerous consequence, destructive to the very freedom and being of Parliaments and Counsels, wherein all Members ought to have equal liberty and freedom of speech and advice, and to carry all things by plurality of voices, and strength of argument, not by new devised suspensions and expulsions, seeing it gives the strongest party and faction a liberty to expel the weaker, and the lesser number backed with an armed-force, a possibility not only to pack and make a House of what Members they think meet, and eject and over-Vote the greater part of the House upon mere pretended offenses and Misdemeanours, and then to vote and pass what Acts and Ordinances they please in a thin and empty Parliament, when the major part of the Members are suspended, ejected, or forced away? And whether all those Counties, Cities and Burroughs, whose Knights, Citizens and Burgesses have been or may be thus ejected, and the whole Kingdom too concerned in it, be not bound in point of conscience and duty for the maintenance of the Honor, Freedom, and fullness of Parliaments, and their own and the Kingdoms safety, publicly to protest against it.

6. Whether the Commons suspending and ejecting of their Members by their own sole Votes and power, gives not the King and Lord's (who are Judges in Parliament) a like Authority, jointly or severally to imprison, eject or suspend the Members of the Commons House without the Commons consents as well as the Commons, who have no sole Judicature, and are but inferior Members and no Court of Parliament alone, and so justifies the Kings imprisonment, and impeachment of any Members in this and former Parliaments, without the Lord's or Commons, who hath a greater Jurisdiction over any Members of either House, being his Subjects and the chief Members of Parliament, who summons and dissolves it, then any Members have over their Fellow-Members and Subjects.

7. Whether those Counties, Cities, and Burroughs whose chosen Knights, Citizens and Burgesses have been thus illegally suspended or ejected without and against their privities or consents, or any revocation of that trust and power wherewith they invest them, are or can in point of Law or justice be obliged by any Votes, Orders or Ordinances of one or both Houses, to which themselves, nor those they elected, by reason of their illegal ejections or suspensions, either did or could assent, & to which perchance they would not have assented, but voted against and over-ruled by the majority and plurality of voices, if present and admitted to give their Votes? The rather, because our Law Books are express,

&, Quod omnes tangit, ab omnibus debet approbari: the very ground why any Acts of Parliament bind all being only this, Because all are consenting to them in their Knights and Burgesses. But those whose Knights and Burgesses are either expelled or suspended the House, without and against their good wills, neither do, nor can be legally said to assent to any Votes, Orders or Ordinances, no nor Acts of Parliament made after their expulsions or suspensions (recorded in the Iournall Book, which absentees are not, and therefore are intended always present:) how then those Counties, Cities, Burroughs, can be obliged by them, it behooves the Commons who ejected and suspended them to declare in print, if they expect any future submission to their Votes, or Taxes from them, to which they did not consent?

8. Whether, since every Knight, Citizen and Burgess is chosen and called to attend the Parliament only by the Kings Writ, and may be amerced, fined, and otherwise punished by virtue of the Writ itself, by the Statute of 5: R: 2: c: 4: the Common Law of the Realm and custom of Parliament, 3: E: 3: coram Rege, Rot: P: 3: E: 3: 13: Stamfords Pleas, f: 38: 155: Cook 4: Instit: p: 15 to 22: in case he absent himself or depart from Parliament without the Kings license, unless he can honestly excuse himself to our Lord the King. And since the words and form of dissolving Parliaments, The King licens • th th • Lord's and Commons to depart, &c. 37: E: • : n: 34: 38: E: • : n: 18: 4 • : E: 3. • : 1 • : 43: E: 3: n: 34: 45: E: 3: n: 9: 13: and all dissolutions of Parliament since, which intimates, that none but the King, who summons all Members to Parliament, can remove or discharge them, without the Kings consent: whether the Commons alone, without his or the Lord's privity, can lawfully suspend, eject or discharge any of their Members, upon any pretence?

9. Whether those Members who have been ejected or suspended in a thin and empty, may not appeal to a full House of Commons for justice and restitution, or at least wise to the upper House of Peers, to whom the power of Judicature in Parliament appertains of ancient right, not only in the cases of Peers, and other Commons, but even in cases of illegal Elections and Returnes, and breach of Privilege by imprisonment of Knights and Burgesses of the Commons House, as is evident by some notable Records: And whether a Writ of Restitution lies not to the Commons House to restore and re-admit an ejected or disfranchised Member, as well as an ejected or disfranchised Citizen, Alderman, Mayor or Common Council-man; of which there are sundry presidents in Sir James Boggs Case, & M. Estwicks of late.

10. Whether the ejecting of the Members lately impeached in the name of the Army only, without any particular Prosecutor, personal summons, hearing, defense, or once reading, debating, or over-ruling the Answer and Demurrer put in by them in writing under their hands to the particular Articles of their Charge, (even whiles a Garrison of their Prosecutors and Accusers are residing at White-Hall, the Mues, and Tower of London, and a guard of them attending at the Commons door;) and the voting of M. Glyn Recorder of London and Steward of Westminster, not only out of the House, but out of his Recordership and Stwewardship (being his freehold) without ever being heard, or summoned to answer any Charge or Articles conc • rning them; and that about 7. or 8. a clock on a Saturday at night, when there were not above 51 present in the House, and accommending others to his places, which are not in the Commons disposal, be not an usurping or exercising of a transcendent arbitrary and tyrannical power, contrary to Magna Charta, ch. 29. and sundry other Statutes, the fundamental Laws of the Realm, the Liberties of the Subject, the Solemn League and Covenant, and sundry Remonstrances and Declarations of both Houses; and an higher act of tyranny and injustice then ever King Charles, Strafford, Canterbury, the Council-Table, or High Commission were guilty of in the worst times; for which those Members who did it, are in point of justice obliged to give their absent and dissenting Members (far the major part) and the ejected Members, those for whom they serve, and the whole Kingdom satisfaction and reparation, to prevent the like proceedings against other Members, and Freemen who are no Members, who may justly fear far harder measure from them upon all occasions, since they are so arbitrary and unjust towards their own dear Members, some whereof have deserved as well, and done as good service for the Realm and Kingdom, as any now sitting in the House.

11. Whether some of the Commons impeaching of their own Members, Lord's and Citizens of high Treason, for sitting and acting in the Houses, or by Orders, Votes and commands of one or both Houses, only for their self-defense against the Armies violence, and the fugitive Speakers and Members who engaged with them, who were not a Parliament in the Army, and not half so many as those who continued sitting in the Houses, be not a dangerous and inevitable impeachment of themselves, both Houses of Parliament, and all those who have acted under them by virtue of their Ordinances and Commissions, ever since the Kings departure from the Houses, in military, judicial or criminal affairs, for Traitors & high Treason, and a nulling of all Ordinances for Indemnity, who have no other Plea in Barre, or Justisication to bear them out, or protect them against the King, or any other that shall indict, impeach, sue or question them now or hereafter, but only this, that what they spake, voted, ordained, did or acted, was in, or by authority of Parliament, or in obedience to the Votes, Orders, Ordinances or Commissions of one or both Houses; which Plea these impeachments utterly subverting, must of necessity expose all and every Member of both Houses, and all who have acted for, or adhered to them during these wars, to the mere merciless tyranny of the King and his Cavaliers, if ever they prevail in present or future times, and declare them guilty of high Treason; and so dis-engage and discourage all men from adhering to, or acting for or under them anymore, to prevent the guilt and danger of high Treason: which seriously considered, may justly engage both Houses, and all those who have cordially adhered to, and served under them, to question and impeach those of high Treason, who were the plotters and contrivers of these Impeachments of so dangerous and destructive consequence to both Houses, and all their cordial friends and adherents, who stand amazed at such proceedings.

12. Whether some Commoners impeachment of seven Lord's at once of High Treason, and suspending them the House, be not a plot of Cromwell and the Levellers, to destroy and abolish the House of Peers, by leaving them not Members enough to sit and make an House by degrees? and what assurance have the few remaining unimpeached Lord's, if they condemn or eject those now impeached for what they did or acted in or by authority of Parliament for their own defense, and the Houses against the Army, that their turns and impeachments will not be next, till they be all impeached, ejected and made no House, since there is an apparent design in many of the prosecutors of the Lord's impeached to have no House of Peers, or Lord's at all to overtop them, that they may be the only Lord's and Kings themselves, and command and dispose of all things at their pleasures, as they have for the most part done of late, before and without the Lord's concurrence. If so, (as is very probable) it will be wisdom in the House of Lord's to consider and prevent this Design in time, before it be too late, and to make no Presidents to destroy themselves, and the very freedom and being of Parliaments and Peers, after so vast an expense of blood and treasure to defend them against the King and his armed party, whose designs are now almost accomplished against them by those Heads and Hands which of all others we did least suspect, who realize and verify this Adagy to the full,

To close up all; Let the Commons consider well of S. Paul's caution, Gal. 5. 15. But if ye bite and devour one another, take heed that ye be not consumed one of another.